Jackson v. Michie , 33 La. Ann. 723 ( 1881 )

The opinion of the Court was delivered by

Todd, J.

The plaintiff sues the defendants, the first as principal and the second as surety, to recover the sum of $10,282 60 with interest, alleged to be the balance owing for the rent of the Aubrey plantation, in the parish of Tensas, for the years 1876, 1877 and 1878.

The demand sued on is evidenced b.y a written contract of lease and three promissory notes, signed by the defendant Michie, and by a writing indorsed on the contract of lease and signed by the defendant, Murdock, in the following words:

“ I hereby bind myself as security for the above and foregoing lease without agreeing to sign or indorse the notes mentioned therein.”

The lease was approved by the parish judge of said parish in an order rendered on the 28th of January, 1876, the contract being dated the 8th of December, 1875, and the plantation leased belonged to the succession of D. P. Jackson, deceased, of which the plaintiff was the administratrix.

The lessor’s privilege was also claimed on the crops and movable property on the premises; and a writ of provisional .seizure issued and was executed against the same.

The rent for the year 1878 was not due at the inception of the suit, and an exception against this part of the demand, amounting to $5000, was sustained, and the suit to that extent dismissed.

The defendant, Michie, answered, first, by a general denial, and further claimed in compensation and reconvention amounts aggregating $7600, based on the following causes or considerations:

Amount expended in repairing plantation buildings, alleged to have been damaged by the lessor during the interval between the commencement of the lease, under the contract, and the time when the lessee was enabled to take possession, and for use of plantation mules during that interval; damages resulting from the loss of mules by death, and which, the lessor failed to replace, and damages resulting from the overflow of the land.

The defendant, Murdock, answered, and averred his discharge from all liability for the debt, by reason of prolongations of the terms of payment granted to Michie, his principal, by the plaintiff, witho.ut his-knowledge and consent.

The case was tried before a jury, who returned a verdict in favor of plaintiff for $3770, for which judgment was rendered in solido against the defendants.

From this judgment appeals were taken by both defendants and by plaintiff. The defendant Michie subsequently abandoned his appeal by a formal withdrawal of the same before the execution of an appeal bond.

On Motion to Dismiss.

There is a motion to dismiss the plaintiff’s appeal, which is the first question for our consideration.

' The plaintiff, in fact, applied for and obtained two orders' of appeal, executed two appeal bonds, and filed in this Court two transcripts.

The first appeal was taken on the 24th of January, 1880, and made returnable on the 9th of February, 1880. The second order of appeal was taken on the 3d of May, 1880, returnable on the 2d Monday of February, 1881.

The defendants moved to dismiss the first appeal on the following grounds:

1. That there was not allowed sufficient time by the order to cite the appellees, and it was, therefore, illegal.

2. That tbe plaintiff had acquiesced in the judgment.

And the dismissal of the second appeal was claimed for the reason that one appeal having been granted and the appeal bond executed, the District Court was without jurisdiction to grant the second appeal.

If the first order of appeal was illegal, as alleged, the jurisdiction of the District Court was not divested over the matter of the appeal by the rendition of such order and the execution of the appeal bond under it. It is true that the order of appeal and the execution of the appeal bond in accordance therewith, as a general rule divests the .inferior court of jurisdiction; but this contemplates a valid and legal order, and the giving of a bond under such order. If the order be illegally or irregularly rendered, the judge may correct such error by granting another order in conformity to law, notwithstanding the appellant may have' given bond and brought up his appeal under the first order. The matter resolves itself into this: The first order of appeal was either legal or it was not. If legal, the proceedings under it are regular and legal, and the appeal should be maintained. If the order was illegal, then the granting of it did not divest the judge a quo of jurisdiction, but he could properly disregard it as a nullity and cure the irregularity by a subsequent order, as he did do; and the appeal under such subsequent order should be maintained, that is, if no other cause of dismissal is shown.

In the case of Bates vs. Weathersby, 2 An. 484, where two orders of appeal had been granted, two appeal bonds executed and two transcripts sent up, as in this case, the Court said: “It (the first order) was irregularly taken, and the inferior court had not, by the first order given, divested itself of jurisdiction of the cause, but still retained full authority to grant a second order which would be available to the parties and enable them to be heard in this Court.” See, also, 10 An. 488; Evans et al. vs. Sauvinet (N. R.) O. B. 42, 638; 32 An. 814.

Nor do the circumstances relied on to support the charge of acquiescence on the part of the plaintiff in the judgment of the lower court constitute such proof of acquiescence as to debar him from his appeal.

These are, that the appellant did not move for a new trial, but opposed the motion for a new trial when made by the defendants. It has never been held that a party must move for a new trial in a jury case as a condition precedent to his appeal, though it is as a general rule proper that he should do so. Nor does the record show that the plaintiff opposed the granting of a new trial moved for by the defendants. There was such a motion made by the defendants, tried and overruled. We know as a matter of practice, that such motions are often made pro forma and overruled by the judge instanter, and without discussion. Be that as it may, to take away the right of appeal there must be an unconditional, voluntary and absolute acquiescence in the judgment rendered, on the part of the appellant, and the evidence fails to satisfy us that there was such acquiescence in this instance. It Aoubtless often happens that a plaintiff, in whose favor a verdict is rendered, though it does not give him all that he thinks he is entitled to, is willing to acquiesce therein and receive what it gives him, if the defendant is acquiescent also and willing to pay the amount awarded thereby; but such conditional acquiescence in a verdict does not deprive him of the right of appeal, if he finds that the defendant, instead of paying the debt, resorts to an appeal himself as a further means of resisting its payment.

And, besides, no act of the plaintiff, done after the judgment was rendered and signed, and it is only then that there is a judgment, looking in the least to an acquiescence in it, is pretended to be shown in this case.

An appeal is an important right, which should never be denied, unless its forfeiture or abandonment is conclusively shown.

The motion to dismiss is, therefore, denied.