Murrell v. Murrell , 33 La. Ann. 1233 ( 1881 )

Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

Appellees move for the dismissal of this appeal bn the ground that John Murrell, Sr., alone has signed the appeal bond, and his co-plaintiffs, his children, acting in these matters as the legal representatives of their deceased mother, and necessary parties in this appeal, have not signed said bond, or furnished any appeal bond.

The record shows that the appeal was prayed for by John Murrell, Sr., and his co-plaintiffs, William C. Murrell and Lucinda Murrell, wife of N. C. Walker, through her legal minor heirs represented by their tutor, N. C. Walker; that the names of all the plaintiffs are embodied in the appeal bond, as appellants and obligors, and that the sureties bind themselves for these two plaintiffs as well as for John Murrell, Sr. Under the well settled rule of our.jurisprudence, holding an appeal bond, even when not signed at all by the appellant, as sufficient in law to sustain an appeal, we cannot conceive how this bond is vitiated because it is signed by one of the three appellants alone, when by the tenor thereof, it distinctly appears to be the bond of all three. If not signed by any of the appellants, it would have been good (Louque’s Digest, page 32, No. 19);' and it follows that the fact of its being signed by one of the appellants only, cannot be held as excluding-the other appellants from any participation therein, or any responsibility thereunder. A different case would be presented if the bond had been made in the name of one of the plaintiffs, without mention, in the body of the instrument, of the other plaintiffs. In such a case, it would have been the act of that plaintiff alone, and could have conferred no benefit, and entailed no responsibility on the other plaintiff's. 26 An. 356. We think that all the plaintiffs are properly before us as appellants, and, therefore, conclude that the motion to dismiss cannot prevail, and hence it is overruled.