The opinion
On Motion to Dismiss.
The opinion of the Court was delivered by
Bermudez, C. J.
The plaintiff and appellee moves to dismiss this appeal on two grounds:
First. The surety on the injunction bond was not cited to answer the appeal, which was by petition.
*241 Second. The transcript was filed after the expiration of the term for appeals from the parish of St. Charles.
I. The plaintiff on giving bond arrested a writ of seizure and sale against her property, which she claimed to be exempt, as her homestead.
The seizing creditor, resisting the pretension of the plaintiff, claimed a dissolution of the injunction, with an infliction of damages upon her. He did not ask that the surety on the injunction bond be condemned in damages also.
After trial, the injunction was perpetuated. In his petition of appeal from the judgment rendered to that end, the defendant asked for citation, merely against the plaintiff, and did not include the surety in the prayer.
The judgment was signed more than a year ago, (September, 1879). It has since become definitive, and constitutes res judicata in favor of the surety, and cannot be disturbed by this Court, as to him.
The surety not having been condemned by the judgment, and being now beyond the reach of the appellant, is indifferent as to the result of the litigation, whether the judgment be affirmed or reversed, and has; therefore, no interest at stake in this Court. The appellee could not ask in the lower court that her surety be condemned in damages, and is precluded from forming a similar demand here.
Neither the appellant nor the appellee claim that the judgment which perpetuated the injunction, and which inflicted no penalty on the surety, be amended, so as to mulct him in damages. It cannot, therefore, be altered, as concerns him.
It is no reason, because the surety was not cited to answer, that the appeal should be dismissed, and that the judgment complained of, if erroneous, should thereby remain undisturbed, and so, practically, affirmed. 22 An. 242; 23 An. 260; 25 An. 319; 26 An. 552.
The suit can well be determined here between the plaintiff and the defendant, who are the only real actors, in the absence of the surety on the injunction'bond, who has no concern in it. The judgment will bind them conclusively, but will not affect him,
II. The appeal was returnable to this Court on the third Monday of January, 1880. On a seasonable and satisfactory showing, the appellant obtained an extension of thirty days, within which the transcript was filed. There exists no cause of complaint. The delay allowed may have occasioned some disappointment to the appellee, but the rights of the appellant, to whom no fault was imputable, had to be safeguarded.
The motion is dismissed.