St. Patrick's Church v. Consumers' Ice Co.

On Motion to Dismiss. The opinion of the court was delivered by Bermudez, O. J. The appellee, in the shape of a dilemma, moves for the dismissal of the appeal. It would have been preferable to have first stated the ground on which the motion rests, and, next, developed it, than at once to have gone into a metaphysical discussion of what it must be assumed to be. That ground may be considered as being that the devolutive appeal asked and obtained was not perfected by the giving of a valid bond. The suit was brought by the “ Roman Catholic Congregation of St. Patrick’s Church, by and through their pastor, duly appointed and acting as such, the Reverend Edward J. Fallon, of the city of New Orleans.” Its object was to prevent the defendant company from using certain artesian wells, perforated on its adjoining lot, so as to overflow the premises of the plaintiff and injure the buildings and improvements upon them. Exceptions were filed and a rule was taken tending to the dissolution of the preliminary injunction issued and to the dismissal of the suit. Upon hearing, the exception and the rule were sustained, the injunction was dissolved and the suit dismissed. From the judgment thus rendered, on motion of counsel for plaintiff, a devolutive appeal was allowed upon the giving by plaintiff of a bond in the sum of $100, conditioned according to law. Contending that the bond furnished is not that required by law, the appellee asks the dismissal of the appeal, arguing: [1023] “1. That if the appeal herein sought to be taken by motion on the 14th of March, 1892, is to be considered as one by the plaintiff in this suit, then the said appeal has not been perfected by the filing of a bond as required by law and by the order of court. “2. That if the said appeal is to be considered as an appeal by the Rev. E. J. Fallon, then there is nothing in. the record to show that the said Fallon has a pecuniary interest in the result of said suit, sufficient to give the court jurisdiction.” The caption of the bond begins: “Know ail men by these presents, that we, Edward J. Fallon, pastor of St. Patrick’s Church, ,as principal.” * * * The second paragraph recites: “Whereas, the aboye bounden Edward J. Fallon, pastor, as aforesaid, has filed a motion of appeal from a final judgment.” * * The last sentence stipulates the obligation of the surety to pay, should the principal fail to do so. It is in the usual type. The bond is for $100, and is so fully identified by other recitals with the suit, the parties and the proceedings, that it can not be suspected as having been given in any other case, and there is no charge in that sense. The dilemma proposed is, that, if the appeal can be considered as taken by the plaintiff, it has not been perfected by the filing of the bond required by law and by the order of court; and that, if the appeal is considered as taken by Rev. E. J. Fallon, there is nothing in the record to show that he has any pecuniary interest in the result of the suit sufficient to give the court, jurisdiction. It is impossible to realize the process of plausible reasoning by which it could be seriously advanced, either that the bond was not furnished by the plaintiff or that it was given by Rev. Fallon, individually. The bond states, as clearly as language can make it, that it is furnished by Rev. Edward J. Fallon, .pastor of St. Patrick’s Ohurch, who has filed a motion of appeal from the final judgment in the case, and the petition declares that the suit is brought by the Roman Catholic congregation of St. Patrick’s Chjirch of the city of New Orleans, “ by and through their pastor, duly appointed and acting as such, the Rev. Edward J. Fallon of the city of New Orleans.” There is strictly no necessity to search in the motion and in the petition to ascertain who gave the bond as principal. The pre [1024] sumption is that it is given by the only party having cause to complain of the final judgment mentioned in it, and that is the Roman! Catholic congregation of St. Patrick’s Church, represented expressly by its named pastor, Rev. Fallon, who signed it in proper hand as plaintiff in the case, and who is thus completely identified. The appeal is devolutive and taken by the plaintiff cast on the' exception. Appellee’s interest in having a bond so framed that the surety therein shall be bound under its stipulations eventually in place of the delinquent principal js nominal. Appellee could not be held under it to any responsibility, and in no contingency ever will have' occasion to enforce its conditions against either principal or surety; which enure practically to the benefit of clerks only, who are almost invariably covered by safer precautionary measures. The rule relied on in 35 An. 348 establishes that where a surety can be held under a bond the obligation is valid. Such is the case here. The surety could not escape responsibility. Of course neither the exception nor the rule can be now considered; as they can be passed upon only when the judgment in the case will be up for review on the merits. Motion denied.