Jackson v. Florsheim Bros. Dry Goods Co.

*607 On Motions to Dismiss.

After this suit was at issue between the plaintiff and the defendants, one Harry B. Busbey intervened, and the ease was tried on the demands of all the parties litigant. The court below rejected plaintiffs’ demands, and rendered judgment in favor of the intervener against the plaintiffs and the defendant Plorsheim Bros. Dry Goods Company, Limited. Prom the judgment in favor of the intervener, the Plorsheim Bros. Dry Goods Company, Limited, appealed suspensively, and the transcript was filed in this court under the No. 28770 on June 22, 1927. Subsequently, the plaintiffs appealed devolutively from the judgment against them, and the transcript was filed in this court under No. 29204 on the return day, March 19, 1928. On March 22, 1928, the plaintiffs and appellants applied for an order to use in connection with their appeal, the transcript which had been filed previously in this court under the No. 28770. This order was granted over the written opposition of the Plorsheim Bros. Dry Goods Company, Limited. That company then moved to dismiss the appeal for want of a legal transcript. Thereafter the plaintiff and appellants filed a motion for the consolidation of the appeals.

The motion to dismiss must be denied. The application of the plaintiffs and appellants to use for the purpose of their appeal the transcript previously lodged in this court was granted under the authority of rule I, section II, of the Rules of this court. See 136 La. p. viii. The rule reads as follows, viz.:

“Where there is a subsequent appeal in a case or growing out of a case theretofore ap-' pealed to this court, the transcript already lodged here, may, on obtaining leave of this court, be used for the purposes of such subsequent appeal, and the transcription of its contents dispensed with.”

Under this rule, it is immaterial that the transcript in the appeal No. 28770 was paid for by the Florsheim Bros. Dry Goods Company, Limited, and prepared under the direction of its counsel. The only concern of this court is whether the present appeal is in the' same case or grows out of the same case previously appealed here. We find this to be the fact. The motion to consolidate the appeals has been granted, and both transcripts are properly before the court to be considered together. Cf. Rosenberg v. Derbes, 165 La. 407, 115 So. 637.

Por the reasons assigned, the motion to dismiss the appeal is denied.

On motion to dismiss.

The plaintiffs and defendant each claim title to 270 acres of land described in the petition, and the intervener, Busbey, claims to own seven-tenths of 100 acres of said land.

Judgment was rendered in favor of the intervener for the land claimed by him against both plaintiff and defendant and from that judgment the defendant has appealed. Judgment was also rendered in favor of defendant rejecting the plaintiff’s demand, and from that judgment the plaintiffs have appealed.

The plaintiffs’ appeal is presented in another transcript, No. 29204 on our docket.

In the instant case the intervener has moved to dismiss the appeal of the defendant on the ground that since the transcript was filed in this court the defendant and appellant has sold the land in controversy to the Plobro Corporation and therefore the said appellant has no further interest in the case.

*609 Attached to the motion is a certified copy of the authentic act transferring the property in dispute, which shows that all of the price was on credit and represented by five notes, all of which are secured by the vendor’s privilege and special mortgage.

The act of sale specially warrants the title to the property and subrogates the vendee to all rights and action of warranty against the claims of all former proprietors.

It is clear in these circumstances that the appellant has a very vital interest in the prosecution of this appeal, and, if possible, to secure a reversal of the judgment and thereby sustain its transfer of the property. Indeed it is not only to the interest of the appellant to prosecute the appeal, but is its plain duty to do so in carrying out its obligation to its vendee.

The motion to dismiss is therefore denied.