Mitchell v. Lay

Decided October 15, 1849

Supreme Court of Louisiana · decided 1849-10-15

Where, in an action to enjoin a fi.fa., an appeal is granted to the defendant, Oh motion and in general terms, it must be considered as embracing not only the plaintiff but also the' sureties in.the injunction bond,-who, by a fiction of law (Stat of 25 March,-1831 s. 3,) are' considered as plaintiffs in the injunction.- Where an appeal is granted on motion in open court,-no citation is necessary. A motion to dismiss an appeal,-taken by the defendant'from a judgment rendered in an action-enjoining an execution, on the ground that the principal in the injunction bond Was the' only obligee in the appeal bond, must be made within three days after the record is filed.

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Decided 1849-10-15

How this case has been cited

Cited by 7 later decisions — most recently April 1950

7 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1The judgment of the court was pronounced by

Slidell, J.

¶2The order of appeal was granted upon motion, and in general terms. It must be considered as embracing not only the plaintiff in the cause, but also the sureties in the injunction bond, who, by a fiction of law (Statute of 1831,) are parties plaintiffs in the injunction. The appeal being ordered upon motion, the sureties are to be considered as having been cited as appellees. Act *515of 1843, p. 40. Isabella v. Picot, 2 An. 390. If the appeal bond was informal in naming their principal only as obligee, upon which point we express no opinion, it was an informality which should have been suggested at an earlier day, and cannot now be noticed, See O'Reilly v. McLeod, 2 An. 138.

¶3It is, therefore, ordered that, the decree against the sureties, Ryan and Newhurger, remain undisturbed.