State ex rel. Howell v. Echeveria , 33 La. Ann. 709 ( 1881 )

On Motion to Dismiss.

The opinion of the Court was delivered by

Levy, J.

Appellee has filed a motion to dismiss' this appeal on the following grounds:

1st. Because no appeal has been applied for by or granted to the State of Louisiana, the only party in interest, entitled, as plaintiff, to ask and apply for an appeal herein.

2d. That, even if any appeal has ever been applied for by plaintiff, the State of Louisiana (which, however, is denied), nevertheless the judgment of the Twentieth District Court herein in favor of defendant, has been acquiesced in by plaintiff and by the District Attorney representing plaintiff.

3d. That no appeal bond has ever been furnished by plaintiff, the only appeal bonds herein having been furnished by the Police Jury and by the School Board of the parish of Assumption, who have no right or interest to appeal from, the judgment herein; the only party in interest being the State, which has not appealed herein.

1st. The order of appeal was granted oh motion made by counsel of plaintiffs. The District Attorney, the official representative of the State in this suit, had joined with him on the relation the Police Jury and School Board of the parish. The associate counsel for the State as well as other plaintiffs, had been recognized as such by this officer and on his own motion they were placed as attorneys of record for plaintiffs. The failure of the State to appeal does not prevent any other party in interest from taking an appeal, as this Court has recently decided in the case of State ex rel. Eord vs. Attorney General (not yet reported).

2d. In the'case just cited, we distinctly held that, while this Court would not (under mandamus) compel the Attorney General to take and bring up an appeal in the name of the State, still such officer could not bind the State by acquiescence in a judgment adverse to her. And in this connection we may declare that a mere allegation of acquiescence contained in a motion to dismiss, unsupported by affidavit, does not justify the remanding of a cause for the purpose of having the question as to acquiescence tried in the lower court. Such practice, if sanctioned, would open the door to tedious and injurious delay and dangerous postponement of the settlement of the rights of parties litigant, and might work great wrong and injustice. To remand causes on mere allegations of acquiescence, not sworn to and not suggested in the record, would place in the hands of one of the parties to the appeal a means of protracting litigation unfair and injurious.

3d. The State is not required to give bond and security for an ap- • peal in her own courts. 2 Rob. 237.

The motion to dismiss is denied.