Wheeless v. Fisk , 28 La. Ann. 731 ( 1876 )

Os Motion to Dismiss.

Wi'lt. J.

On the first of February, 1871, the defendant took a sus-pensive appeal from the judgment against him for §977 46. He was subsequently adjudged a bankrupt, and at the trial in this court offered his discharge in bar o£ the action against Mm, and prayed that the appeal herein be dismissed.

The discharge granted by the bankrupt court to the defendant will protect him from further responsibility to the plaintiffs, but it can not avail to dismiss the appeal. The plaintiffs have the right to make the surety on the suspensive appeal bond liable in case it should be determined that the judgment appealed from is correct. This court has authority to revise that judgment and settle the controversy, because, as we have just decided in the case of Switzer vs. Heinn, where a State court has obtained lawful jurisdiction of the parties and the subject matter, that jurisdiction continues as “long as the amount due is in dispute or remains unascertained.” Bump on Bankruptcy, sixth edition, pages 187,198,199, and authorities there cited. The assignee, however, has not been cited.

It is therefore ordered that this case be continued, in order to make the assignee of the bankrupt, E. M. Fisk, a party .to this appeal.