Peoples' Brewing Co. v. Bœbinger

Motion to Dismiss. The opinion of the Court was delivered by Fenner, J. The plaintiff, alleging itself to be a corporation, obtained and confirmed a judgment by default against the defendants condemning them to deliver up certain subscription lists within 24 hours after the judgment should become final, and in default of such delivery within said time, to pay to plaintiff $40,000, with right to execution for said sum at the expiration of the delay without delivery of the lists. The judgment was signed on December 16, 1887, and on ■January 7, 1888, fi. fa. was issued under which the sheriff was proceeding when arrested by an injunction issued on the petition of defendants. The petition for injunction denied the corporate existence of plaintiff, and made its alleged president, E. Ehrensing, a party individually, together with the sheriff. In this latter proceeding judgment was rendered dismissing the action and dissolving the injunction. Under the rules of the Civil District Court, injunction proceedings to enjoin the execution of judgments are “treated as parts of the original suits out of which they arise,” and are “ docketed and numbered as parts of such suits.” 1-Ience, desiring to appeal from both the original judgment and that in the injunction proceeding, defendants applied for and obtained a single order of appeal from both, directing the furnishing of a single bond fixed at $250, which was executed, and under these proceedings the appeal is brought up. Various grounds are assigned for dismissing the appeal, which, however, may be summarized as follows : 1. That the two appeals could not be embraced in one order of appeal or supported by a single bond. We think the appeals are fully protected by the equitable rule announced in Succession of Clark, 30 Ann. 801, and affirmed by the present bench in Succession of G-eddes, 36 Ann. 963. Under the rules of the Court, both judgments were rendered in the same suit; the two judgments were so closely related to each other that the ends of justice will be advanced by considering them together. The first judgment is appealed from only devolutively, and the second did not condemn the appellants to pay any money or deliver anything. [279] Therefore, a bond for costs was all required in either case, and as said in Clark’s case, ‘‘ the costs are as fully secured by one bond with sufficient security in a sufficient amount as by any number of bonds.” So far as the distinctness of parties is concerned, it is more apparent than real. The sheriff is a nominal party without interest and need not be considered. It is evident that Ehrensing is enjoined as the party representing the original plaintiff in executing the judgment, and the only reason why he is not sued in the capacity of president of the Brewing Company is because defendants expressly deny the corporate existence of said company. The suggested difficulty of adjusting the costs under one bond for two separate judgments was considered and disposed of in Clark’s case. The only effect of separating the appeals would be to increase the costs. 2. It is claimed that both the order and bond of appeal are defective for want of sufficient description of or reference to the judgments appealed from. We have examined the order and bond and find that both give correctly either the date of rendition or the date of signature of each judgment in such manner as fully to identify the. judgments referred to. Pasley vs. McConnell, recently decided. The motion to dismiss is, therefore, denied.