
    No. 5462.
    John T. Michel v. Zerilla Meter et al.
    ■Where the transcript of the appeal was filed on the seventh of November, 1874, and on the eleventh the defendants, appellees herein, filed an answer praying for an amendment of the judgment, and where on the fourteenth they moved, to dismiss the appeal, because the appeal bond was not for a sufficient amount, because the transcript was not filed in time; and because the clerk certifying the record omitted to append his signature;
    Held--That the motion came too late.
    Besides, having joined in the appeal, the appellants ought not to be heard asking for its dismissal.
    The certificate appended to the record should be signed by the clerk. This court, of its own motion, orders it to bo done, and denies the motion to dismiss.
    In this instance, where the plaintiff injoined an order of seizure and sale issued on behalf of defendants, the judge a quo did not err in dissolving the injunction for the sum really due by plaintiff, and perpetuating it as to the small sum received by defendant and to be credited to plaintiff, but he should have allowed damages on the amount that was due. The remittitur by defendants is an admission that the writ issued for more than was due. The making of a remittitur does not remove the existence of the cause for the injunction, to that extent, at the date of its issuance.
    from the Fifth District Court, parish of Orleans. Cullom, J.
    
      It. King Cutler, for plaintiff and appellant. J. M. Harding, for defendants and appellees.
   On Motion to Dismiss.

Wtlt, J.

The transcript of this appeal was 'filed on the seventh November, 1874. On the eleventh the defendants, appellees herein, filed an answer praying for an amendment of the judgment. On the fourteenth they moved to dismiss the appeal because the appeal bond was not for a sufficient amount, because the transcript was not filed in time, and because the clerk certifying the record omitted to affix his signature.

The motion comes too late. Besides having joined in the appeal the appellants ought not to be heard asking its dismissal.

The certificate appended to the record, however, should be signed ■by the clerk. Of our own motion, it is ordered that the clerk of the Fifth District Court, Thomas Duffe, 'affix his signature to the certificate appended to the record. And the motion of appellees is denied.

On the Merits.

Howell, J.

The plaintiff injoined an order of seizure and sale on the grounds:

Mr si — That the creditor had given an extension and was to receive rents of the property during said extension in consideration thereof.

Second — That out of said rents the creditor was to pay the insurance premium, which she failed to do.

Third — The property is improperly described in the advertisement.

On the trial in the lower court the judge found that the extension, which had been granted, had expired before the writ issued and had not been renewed, but that the defendant had received sixty dollars in rents, for which no credit was given, and he perpetuated the injunction as to such sum and dissolved it as to the balance, without damages. The plaintiff appealed, and in the answer the defendant asks that the judgment be amended by allowing the highest damages and dissolving the injunction in toto, because, pending these proceedings, a remittitur was entered in the executory proceedings.

We think the judge a quo did not err in dissolving the injunction, for the sum really due and perpetuating it as to the small sum received by the defendant, but he should have allowed damages on the amount that was due. See 4 An. 150; ■ 3 An. 125.

The evidence does not establish the extension as alleged by plaintiff, and the remittitur is an admission that the writ issued for more than was due. The making of a remittitur does not remove the existence of the cause for the injunction, to that extent, at the date of its existence.

It is therefore ordered that the judgment appealed from be amended by condemning the plaintiff and his surety on the injunction bond in solido to pay defendant, Z. Meyer, $600 damages and all costs of suit.

Rehearing refused.  