Potier v. Harman

Same Case — Re-hearing. Garland, J. A re-hearing has been granted in this case, on two questions : First. Whether this court can take cognizance of the appeal, after it has been dismissed by the District Court because of the insufficiency of the security on the-appeal bond. Secondly. Whether it was necessary to talcs a judgment against Harman, or to make him a party, previous to obtaining a judgment against Breisgass. Upon the first point, it has been often decided, that after an appeal has been taken, and bond and security given according to law, the inferior court has no further cognizance of the cause, than to send up the record. 4 La., 205 . 7 Ib., 448. 9 Ib., 49. In this case, an agreement as to the security was entered into by the parties. It is not shown, that it has been violated in any respect; and the *528 proceedings in the District Court seem to us altogether irregular, as the appeal had been for several months pending in this court. Upon the second point, we are of opinion, that our judgment was correct, as it does not appear whether Harman was solvent or not. It may be, that he is able to pay the debt claimed. If so, no injury has been sustained by the plaintiff. His debts were not due at the time of the sale from Harman to Breisgass, and if the former should he legally pursued, it is possible that the notes may he collected, without interfering with the sale in question. It may he, that the sale was intended to defraud the plaintiff; hut if he sustains no injury by it, he has no right to annul it. All the parties should be before the court, either in person, or by their legal representatives, to enable us to do justice among them. We therefore see no reason to change our former judgment in the case.