Murphy v. Factors' & Traders' Insurance

[455] On the Motion to Dismiss. The opinion of the Oourt was delivered by Wyly, J. From the final judgment in this ease, signed on 3d July, 1876, three appeals were taken, viz: One by the Factors’ and Traders’ Insurance Company, one by C. J. Leeds & Co., and one by Percy Roberts, assignee — all parties to this litigation. Plaintiff, appellee herein, moves to dismiss the appeals: 1st. On the ground that citations of the appeals were served on her attorney, and not on herself, she being a resident of New Orleans. 2d. Reserving the benefit of this objection, and without in any manner waiving it, she objects on the ground that Marshall J. Smith and other necessary parties have not been made parties to the appeal. 3d. That the three appeals are improperly embraced in the same transcript. There can be no valid objection to the appeals herein being contained in the same transcript. Certainly the interest of plaintiff has not been impaired thereby. They are all for the settlement of this litigation. Marshall J. Smith, and E. E. Norton, assignee, have filed an appearance in this Court which, of course, makes them parties, if they are necessary parties. . As to the objection that citations of the appeals were served on the attorney of plaintiff, and not on herself, we will remark that the record satisfies us that it was the fault of the sheriff and not of appellants, who, in their petitions for appeals, prayed that plaintiff be cited. In the ease of the Widow and Heirs of Julien Seghers vs. Nevil Soule and Albert Gaillard, decided in January, 1876, and not yet reported, this Court said: “ Appellants were not bound to mention the names of the appellees in their petition for appeal. They prayed that plaintiffs (who are appellees) be cited. This was sufficient. It was the duty of the clerk to issue citations to all the plaintiffs mentioned in the petition, and it was the duty of the sheriff to serve the citations. No appeal should be dismissed unless the fault is attributed to the appellants.” See Act 45 of Extra Session, of 1870, section 11 ; 17 La. 515; 2 An. 769; 12 An. 332; 13 An. 259; 14 An. 698; 16 An. 303; 21 An. 669. As appellants have caused plaintiff to be served with citations since this motion was filed, it will not be necessary to continue the case for service of citations. The motion to dismiss is denied.