Hewes v. Baxter

*1060 On Motion to Dismiss Appeal, The opinion of the court was delivered by Watkins, J. The grounds assigned for the dismissal of the appeal are that there is no legal bond of appeal furnished in compliance with the order of the judge granting the appeal. Further because the order of court granting the said appeal fixed the amount of the appeal bond at five thousand dolíais. That subsequently a rule was taken on behalf of the defendant and appellant, commanding plaintiffs and appellees to show cause at the judge’s chambers why said bond should not be reduced in amount, but same was dismissed, and thereafter .the judge made an ex parte order reducing the amount of said bond to $500, and without notice to the plaintiffs and appellees —and that such order was illegal and void. The additional ground is taken that no appeal lies in a partition suit, unless the ownership of some of the joint heirs or co-owners is matter of dispute, and the averment is made that although the defendant in his answer denied that some of the plaintiffs are owners in common, yet in his testimony he admitted the joint ownership of all. The o rder of appeal is in the alternative granting the defendant a devolutive appeal, fixing the bond for same at $250, anda suspensive appeal, fixing the bond therefor at $5000. After the granting of the order the defendant applied to the district judge in chambers and procured an order reducing the amount of the suspensive appeal bond to $500 — not, however, disturbing the amount of ihe devolutive bond. In pursuance of said orders the defendant executed a bond for $500, and instead of furnishing security under an order of court, he substituted that sum of money and deposited same with the clerk of court. Consequently, if it be conceded that the order reducing the amount of the suspensive appeal bond from $5000 to $500 was irregular, yet the bond for $500 is quite sufficient to respond as a devolutive appeal bond. Glover vs. Taylor, 38 An. 634. On the other branch of the case it is only necessary for us to observe that it is elementary that we can not go into an investigation of a question of evidence that was adduced on the trial in order to determine the dismissibility of an appeal. Motion to dismiss denied.