Lowenstein v. Fudickar

On Motion to Dismiss. The opinion of the court was delivered by Watkins, J. In the lower court intervenors joined plaintiffs in the prosecution of their suit, a general judgment was rendered in favor of defendants, and plaintiffs and intervenors have appealed. In this court plaintiffs seek to dismiss intervenors’ appeal, (1) because there was no order of court fixing the amount of bond, and (2) because intervenors furnished no appeal bond. The order of court is couched in general terms. It was granted in open court, on the motion of plaintiffs and intervenors respectively, and the respective appeals were made returnable to this court. It is true that the language employed by the judge a quo in the concluding part of the order is ‘‘ on the plaintiff’s giving bond in the sum of fifty dollars for a divolutive appeal,” without making any mention of the intervenors. That is a mere casus omissus, and is evidently the result of inadvertence. Mention is made of the plaintiffs and intervenors in the commencement, and the omission of intervenors in the conclusion of the order of appeal can not work the revocation of it in toto as to them, and leave it in propriore vigore as to plaintiffs. [889] At the time plaintiffs’ motion to dismiss was filed, the transcript did not contain the appeal bond of intervenors, but it has been produced since and filed. The filing of the bond serves to show how the order of appeal was construed by the intervenors, and our opinion is that their interpretation of it was correct. The motion is therefore dismissed.