The Bank of Minden v. The Lake Bisteneau Lumber Company

• Decision Date: 17 June 1895
• Docket Number: 11,843
• Citation: 47 La.Ann. 1432,17 So. 832
• Court: Louisiana Supreme Court
• Parties: THE BANK OF MINDEN v. THE LAKE BISTENEAU LUMBER COMPANY

17 So. 832

47 La.Ann. 1432

THE BANK OF MINDEN v. THE LAKE BISTENEAU LUMBER COMPANY

No. 11,843

Supreme Court of Louisiana

June 17, 1895

Argued June 10, 1895

APPEAL from the Second Judicial District Court for the Parish of Webster. Watkins, J.

L. K Watkins, for Plaintiffs, Appellees.

Leonard & Randolph and D. W. Stewart, for Defendants, Appellants.

MCENERY J. NICHOLLS, C.J., absent.

OPINION

MCENERY J.

ON MOTION TO DISMISS.

The order of appeal makes it returnable "according to law." The transcript was filed May 13, 1895. The citation of appeal was served on appellees on April 1, 1895. The number of days in which they were entitled to answer had not expired when the transcript was filed. This is no cause for a dismissal of the appeal. The appellees were entitled to the delay before answering, and having done so and the case submitted, there is now no occasion for the delay. Objection is made to the insufficiency of the bond as to amount and the insolvency of the sureties. This is a matter for the consideration of the lower court.

The form of the bond is for a suspensive appeal. The appellee urges this to be insufficient and that it should have been devolutive in form. If it is sufficient as a suspensive appeal bond, which covers the costs in the case as well as the judgment in the principal demand, it is assuredly sufficient for a devolutive appeal where costs alone are recoverable on the bond. Chaffe vs. Carroll, 34 An 122.

The interest of the appellee is shown by the petition for the appeal and the affidavit of the attorney attached to the same. The objection, therefore, of the want of an appealable interest in the appellant is not sustained by the record.

The plaintiff was a judgment creditor of the defendant corporation. He caused an execution to issue under it, which was returned "no property found." The plaintiff in execution on the sheriff's return, under Sec. 688 Revised Statutes, presented a petition to the District Judge for the appointment of a receiver for the corporation, and the liquidation of its affairs. The judgment, fi. fa and return were annexed to and made part of the petition. The receiver was appointed, and the appellant, a stockholder, applied for and obtained an order of appeal from the judgment appointing the receiver. In order to decide the case the papers annexed to the petition are essential parts of the record. They are not in it. It was the duty of ...