Philips v. Her Creditors

The opinion of the Court was delivered by Bermudez, C. J. Tho transcript contains two motions to dismiss, one made before, tho other after submission. In the first it is claimed that the appeal should bo dismissed, because: 1. Proper parties wore not made and cited. 2. The syndic having died, no one was appoinied to represent him 3. The appeal bond was not filed within the year from the rendition of the judgment; and because of 4. lies judicata. Iu the second motion, it is urged that the appellant has not filed in this court the transcript mentioned in the clerk’s certificate and which is necessary to complete the transcript. I. 1. The appellant has prayed in her petition for an appeal “that the parties defendants be duly cited as required by law in such cases.” This'is all. she had to do. Tho prayer fully protects her from the attack now made upon her. if, notwithstanding lior prayer, the clerk and the sheriff did not perform their duty, she is not, but they are, to be blamed for it. Under such a state of facts the only thing that could have been asked/wottld have heen a continuance of the caso, to allow that to be done which had not heen done; but for this no prayer is made. [702] 2. Tlie death of the person appointed syndic and the non appointment of some one in his stead, is no ground for the dismissal of the appeal. The proceedings in this matter contemplated a respite. The district court refused the application and ordered a cession of property. On appeal, the judgment rendered to that effect was reversed, so far as it decreed the cession, but affirmed otherwise. The effect of tiie judgment was therefore to put the applicant for the respite in the condition which she occupied before she filed any proceeding for that relief, at the same time that it avoided the cession ordered by the district court and all proceedings consequent upon it. With this avoidance the appointment of the syndic fell. In that condition of things there was no necessity to appoint any one to replace one who had no legal existence, who was therefore no necessary party to the appeal. 3. The bond furnished to perfect the appeal was filed within the year following the day on which the judgment appealed from could have become executory, that is, within the year following the close of the term during which the judgment was rendered. The year does not begin to run in the country from the signature of the judgment during term, but only from the end of the term. 4. The objection of res judicata is not one which can bo urged on a motion to dismiss. It can be considered and acted upon only as a matter of defense on the merits of the cause, at which it is necessarily levelled. II. The second motion to dismiss was filed after the submission of the cause, subject to the objection of the appellant, who urges that it comes too late. This objection is well founded and must be sustained. Motion to dismiss denied.