A. J. Trounstine & Co. v. Ware

The opinion of the Court was delivered by Watkins,-J. By consent of parties these causes we consolidated and tried together in the lower court. Appellee, G. W. Muun, filed in this Court a motion to dismiss the appeal on the following grounds, viz : 1st. Because he has not been cited to answer the appeal; and that an order of appeal, made at a term subsequent to the one at which the judgment appealed from was rendered, is not a legal substitute for a citation. 2d. Because “no bond was ever filed within the time required by law; and none is embraced in the clerk’s certificate to the transcript.” [941] It appears from tlie record that there was a judgment rendered and signed on the 24th of December, 1885, in the suit of Trounstine & Co. vs. Ware and Munn, sustaining the exception of Munn, dissolving plaintiff’s attachment in so far.as it effects the property of Munn, and dismissing the suit as to Munn. In the suit of Carter Bros. & Co. vs. Ware and Munn, a precisely similar judgment was rendered in respect to Munn, on the day preceding. In the former case the plaintiffs petitioned in open court for appeals suspensive and devolutive, “from the judgment rendered against him on the — day of December, 1885, sustaining the defendant Munn’s exception of no cause of action, and dismissing plaintiff’s suit, as to G-. AV. Munn ; and also from the judgment rendered herein on the 19th of July, 1886.” The order is of the same tenor, as the petition, and it was gi anted “in open court,” on the 23d of July, 1886. In tlie latter case a similar petition was filed — the only difference being a prayer for citation, in the latter — and a similar order was granted on the same date. Neither record contains any citation, or service,, or any substitute therefor. The bond for appeal in each case was only filed on the 2d of October, 1886 — long subsequent to the expiration of the ten days allowed by law for suspensive appeals. Tlie objection urged to the want of citation, affects fatally plaintiff’s appeal from the judgment, in each case, that was rendered in December, 1885. The appeal that was granted on motion “in open court" at a subsequent term, in July, 1886, was unavailing, in so far as they are concerned, and they must be dismissed. But the same principle does not apply to the judgment that was rendered on the 19th of July, 1886. The appeal that was granted therefrom, was perfected by the filing of the appeal bonds on October 2, 1886 — within a year from its date. In so far as that appeal is concerned, the motion must be overruled.