Prentice v. Chewning

Bullard, J. The appellee has moved to dismiss this appeal on two grounds -.first, that a former appeal was taken and abandoned hy the appellant, and second, that he has voluntarily executed the judgment appealed from. I. It appears that an appeal was allowed by the judge of the district on the 21st of September, J840, and made returnable on the first Monday of October. But no bond appears to have been given and no citation issued. The present appeal was allowed on the 7th of December, 1840, and a bond filed comformably to the order of the judge, and the appeal made returnable to the present term. Thq article 594 of the Code of Practice, upon which the appellee relies, provides that as soon as the citation of appeal is served on the appellee, the appellant cannot withdraw his appealand whether he obtain the rejection of the appeafby producing the record from the court below, or prosecute an execution on the judgment appealed from, on the certificate of the clerk that the record has not [72] been brought up, the appeal shall be considered as abandoned, and the appellant shall not be allowed to renew it. In the present case n6 bond appears to have been given, no citation was issued, and no certificate is shown to have been obtained from the clerk upon which the judgment was executed. The first order of appeal seems to have been considered as a nullity in consequence of the want of time between the 21st of September and. the first Monday in October, when it was made returnable. This is' not, in our opinion, such an abandonment of an appeal, as will preclude a. second. II. In support "of the second ground, it is shown that air execution issued on the judgment, notwithstanding the appeal, and that a tract of land belonging to the appellant was seized and sold to satisfy the judgment, and Chewning signed the sheriff's deed, which contains these words, ‘said James J. Chewning joins in this sale.’ The article of the Code of Practice relied on, 567, declares that ‘ the party against whom judgment has been rendered cannot appeal, if such judgment have been confessed by him, or if he have acquiesced in the same by executing it voluntarily ’ &c. The sheriff’s sale look place in November, previously to the appeal. But we are of opinion that the sale was still a forced ofte, nothing showing that the appellant consented to the issuing of the execution. Even if the judgment were to he reversed, the title of the purchaser would be valid, independently of the written consent of the appellant, expressed in the sheriff’s deed. At most that consent would amount only to a waiver of a monition, so far as it concerned him. It was perhaps for his interest to make no opposition to the sale,as'the land would probably sell for a higher price. But it was not in his power to prevent the execution of the judgment, when the writ was in the hands of the sheriff, as his appeal then pending was not suspensive. We cannot consider this as such an acquiescence in the judgment and voluntary execution of it, as defeats his right of appeal. The record contains several bills of exception upon which the appellant relies. One of them brings to the notice of the court an error so radical, that we cannot avoid remanding the cause for a new trial. It appears that in the progress of the trial, one of the jurors fell sick, and that the court, contrary to the will of the defendant, sub [73] stituted another juror in his place from among the bystanders ; he was sworn, and the evidence already taken down was read to him, instead of commencing the trial de novo. We are of opinion that the moment a juror was withdrawn, there was a mistrial, and his place could not he supplied without consent. But even if both parties had consented to the swearing of the new juror, the defendant had a right to require that he should hear the witnesses testify, and the juror himself had a right to propound questions to them. 8 La., 565. It is therefore ordered that the judgment of the District Court he reversed, and the verdict set aside ; that the case be remanded for a new trial; and that the appellee pay the costs of this appeal.