Borde v. Erskine , 33 La. Ann. 873 ( 1881 )

On Motion to Dismiss.

The opinion of the Court was delivered by

Manning, C. J.

The plaintiff instituted a suit for the partition of a-plantation owned by him in common with the defendants, in which there was rendered,a judgment for a partition by licitation. There was-a sale, and Mrs. Carmen Fernandez was the purchaser. In March, 1877, Borde, the plaintiff, alleging that the property was incumbered with certain mortgages which he describes, and that Mrs. I ernandez was the adjudicatee, and that their erasure is necessary to give her a clear title, took a rule to show cause why they should not be erased. The rule was served on all the joint owners, and upon the under tutor to two-minors who were defendants, whose mother and tutrix was a co-defendant, and also upon the mortgagees, except one. On trial, the rule-was discharged, and Borde appealed. He furnished no bond, and abandoned the appeal.

In April the purchaser prayed an appeal by petition, making all' the mortgagees and owners parties, except Borde, which was granted upon a bond of two hundred and fifty dollars, which was duly executed' with surety. Subsequently, upon discovering that Borde had been-omitted, she filed a supplemental petition supplying the omission, and' there was an order making him a party, and he was cited. No additional- bond was given.

The motion to dismiss is based on several grounds. One of them is that the failure to execute a new and additional bond vitiates the appeal as to Borde, who is a necessary party. This is untenable. The-bond is in favor of the clerk, and all parties to the appeal can recover-on it. And besides, if Borde himself does not complain of the want of an additional bond, it is not for the appellants to complain for him. The-circumstance that Borde’s name was not included in the original petition for appeal would have been fatal, had the defect not been cured by the supplemental petition and citation upon it. We are referred to-several decisions to the effect that those only are parties to the appeal whose names are in the bond. All of them are under the old law which required the insertion in the appeal bond of all the parties, a provision-which sometimes was so incapable of sure fulfillment that the legislature tardily, but effectually, removed the difficulty by substituting the name of the clerk, and authorizing the parties to avail themselves of it.

Another ground for dismissal is the want of proper citation to the under tutor. He was a party to the partition suit, and was regularly cited therein. The citation-of appeal was served on his attorney, which is the proper mode of service on a- non-resident. Code of Practice, article 582. But he is a resident of the State, and was at that time, if the sheriff’s return be correct, absent. The service should have been at his domicil. Ratliff vs. Creditors, 14 La. 292. Under the act of 1839, an appeal will not be dismissed, on the ground of irregularity in the’ service of citation, if it is not imputable to the appellant. We think that-statute protects the appellant in this case. She alleged in her petition of appeal that -the under tutor was a resident of New Orleans, and' prayed for his citation. The sheriff should have known how to cite-him. There is nothing before us to show that the appellant, or even her attorney, misdirected the sheriff, and by her own fault caused an improper service to be made.

Another objection is urged that the record is incomplete, and the appellant has attemped to supply its deficiencies by filing along with it-a copy of a missing paper. The clerk also makes a supplemental certificate as to some omitted words in the transcript. These omissions are attributable to the clerk, and should not prejudice the appellant. The proper and regular mode of perfecting the transcript is by a writ of certiorari, but, as was said in Baltimore vs. Parlange, it is useless to-order the writ when certified copies of the missing documents have been filed. 25 An. 335.

The facility for dismissing appeals that formerly existed, and of which parties constantly availed themselves to the great detriment of substantial justice, has been restricted by the wise substitution of an officer to the names of the litigants in the appeal bond, so that an appeal by motion can rarely be dismissed for technical objections. It would be an equally wise amendment of the law, if the process of taking and serving an appeal by petition were simplified by some equally effectual means.

The motion to dismiss is denied, and the case is continued with leave to the appellant to have the under tutor properly cited.