Bazergue v. Faucheux , 15 La. Ann. 393 ( 1860 )

Merrick, C. J.

There is a motion to dismiss the appeal in this case, on two grounds, viz :

That the appellant has acquiesced in the judgment, by voluntarily executing tho same; and that no appeal bond has been executed in favor of the natural tutrix representing the minor defendants.

On the second ground we observe, that the bond is only executed in favor of Madame Faucheux, widow Robert, in her individual capacity, although the judgment is also in her favor as tutrix to her minor children.

It is contended by the learned counsel for the defendant, that the appeal to this court has followed tho citation in the lower court, which was addressed to the defendant, Madame Robert, in her individual capacity, &c.; that if the minors are not parties to the appeal, then they were not parties to the suit in the lower court, and the appeal was well taken. Tho fact, however, is, that the prayer of the petition was that she should be made a party defendant in both capacities. She answered, and formed her roconventional demand in both capacities, and had judgment thereon accordingly. The appeal ought to have been taken against her in both capacities. The minors, therefore, have not been made parties to the same. Crawford v. Alexander, 14 An. 708.

It is, therefore, ordered, adjudged and decreed by the court, that tho appeal in this case be dismissed at the cost of the appellant.

Land, J., absent.