Freyhan v. Berry

The opinion of the court was delivered by Nichobbs, O. J. The allegations made in the last ground for dismissal are given color to from the non-appearance in any way in this court of counsel who are certainly not chargeable with ever leaving unguarded the actual interests of their clients. We have not been informed what appellant complains of, nor as against whom his complaints are directed. We would be inclined to affirm the judgment itself under such conditions, as judgments of the lower court are presumptively correct and we could not be expected to seek to discover and prove them otherwise. We have, however, reached the conclusion that the appeal should be dismissed. Appellant failed to deposit any fund in court, and suspensively appealed from the decree that it should be so deposited. We do,not think the appeal can be sustained upon the theory that a concursus was brought about through the plaintiff’s suit. Whatever effect, as between the different parties claiming judgments against Freyhan and Berry, may have flowed from the fact that the different judgments rendered by the District Court in their respective favor, were rendered in one and the same proceeding, it can not be said it brought presently before the court any fund for distribution. (See Denegre vs. Mushat, 46 An. 90; Wheelwright vs. Transportation Co., 47 An. 540.) We have, for present purposes, to deal with the different judgments as if they had been adjudged in separate, distinct actions. This result carries with it as a consequence that none of the judgments below in which the matter in dispute was less than two thousand dollars have been brought up for review through this appeal. The only claim for over [310] two thousand dollars which was involved in the lower court was that of the Central Manufacturing and Lumber Company, Limited. Was the situation of that claim in the District Court such as to authorize this appeal from the judgment rendered in respect to it? Freyhan, in his pleadings, acknowledged a liability of twenty-six hundred and forty dollars, either to Berry or to the laborers and material men who were brought into the suit. He stood indifferent as to the distribution of the fund between these different parties. When the court rendered judgment in this suit, the pro rata out of the amount admitted by Freyhan to be due, falling to the Lumber Company, under the decree was such that that amount being deducted from the total claim of the company left as the only amount in dispute between it and Freyhan and Berry a sum less than two thousand dollars. A controversy touching a liability of Freyhan for a larger amount to the Lumber Company would not sustain this appeal. The appeal would fall independently of any question of acquiescence or a payment by Freyhan of the judgment rendered touching it. We think the appeal should be dismissed, and it is hereby dismissed.