-
On Motion to Dismiss.
MONROE, J. Johnson, Boyd & Co., creditors, and Wm. Kohlmann, a stockholder, of Leon Schwartz & Co., Limited, having appealed from a judgment rendered on the final account of the receiver, the petitioning creditor moves to dismiss the appeals, on the grounds, as to the first, that no sufficient appeal bond was furnished and that the transcript is incomplete, and, as to the second, that the appellant is without interest (the corporation being wholly insolvent), that the appeal was applied for too late, and that the transcript is incomplete.
The certificate of the clerk reads,- in part:
“I, William B. Murphy, deputy clerk, * * * do hereby certify that the foregoing 220 pages do contain a true, correct, and complete transcript of all the proceedings had, documents filed, and evidence adduced upon the trial of the cause wherein Charles Wenar is plaintiff and Leon L. Schwartz, Limited, is defendant, instituted in this court, and now in the records thereof under No. 77.075 of the docket thereof, Division E, the Honorable George H. Théard, judge, from the 1st of March, 1906, to the 7th of May, 1907, with inclosure, copy inventory, filed April 6, 1905, is forwarded as filed, per stipulation filed May 7, 1907, copied in said transcript on page 220, and the present transcript, together with the one heretofore forwarded to the honorable the Supreme Court herein, does contain a correct and complete transcription of said cause.”
It seems that a previous appeal in the same proceeding (though involving other issues) had been lodged in this court (Wenar v. Leon L. Schwartz, Ltd., 117 La. 81, 41 South. 360), and, after the motions now under consideration had been filed, appellants moved that the transcript in such previous appeal be consolidated, with and made part of the transcript of the present appeal. Appellee contends that the motion came too late; but we think not. It was filed, and the order to consolidate was made (without prejudice), before the motion to dismiss was submitted; the case differing, in that respect, from the case of Conery v. His Creditors, 116 La. 535, 40 South. 863, on which appellee relies.
Rule 1, § 8, p. 3, of the rules of this court (21 South, ix), provides that parties in interest prosecuting subsequent appeals “will be permitted, upon application to this court, to use transcripts in previous appeals when such appeals are branches of the same case, omitting from their copy the portions included in preceding transcripts.” And Code Prae. art. 898, authorizes the correction of defects in transcript up to “the time of argument.”
*5 The objection to the bond filed by Johnson, Boyd & Co. is abandoned.The petition of Kohlmann was denied by judgment signed April 5, 1907, and he applied for and was allowed a devolutive appeal on the following day. He had intervened pro interesse suo after the case had been tried, alleging that he was a stockholder in Leon L. Schwartz, Limited, charging a combination between the receiver and certain of the creditors, and praying that, after the payment of certain creditors, he be paid the amount ($2,500) of his stock subscription. Whether this demand has anything to rest on can best be determined after an 'examination of the case on the merits.
The motions to dismiss the appeals are ' therefore overruled.
Document Info
Docket Number: No. 16,623
Judges: Monroe, Sty
Filed Date: 6/17/1907
Precedential Status: Precedential
Modified Date: 11/9/2024