
    (53 South. 529.)
    No. 17,895.
    CORBETT et al. v. HANSON et al.
    (May 9, 1910.
    On Rehearing, Nov. 14, 1910.)
    
      (Syllabus by the Court.)
    
    1. Appeal and Ekkok (§ 14*) — Right to Second Appeal.
    A second appeal cannot be allowed in a case which had once been appealed in its entirety, and disposed of as to all the issues involved in the suit.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 48, 58; Dec. Dig. § 14.*]
    2. Appeal and Ekkob (§ 360*) — Appeal in Open Cottkt.
    In an appeal taken by motion in open court, all parties to the suit who are not appellants are appellees, and all are concluded by the judgment rendered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 360.*]
    Provosty, J., dissenting.
    Appeal from Sixth Judicial District Court, Parish of Ouachita; J. P. Madison, Judge.
    Action 'by D. E. Corbett, Morris Jouvenat, and others against Rasmus Hanson and others. Judgment for defendants, and plaintiff Jouvenat appeals. On motion to dismiss.
    Motion granted.
    See, also, 124 La. 403, 50 South. 435.
    Stubbs, Russell & Theus, for appellant I. L. Hass.. A. A. Gunby, for appellee O. B. Law.
   PRO YO STY, J.

The present litigation is over the division of a fee; the two plaintiffs, Corbett and Jouvenat, claiming one-third each and the defendant, Law, claiming one-half.

The judgment of the lower court was in favor of defendant. On a former appeal this court set it aside, and gave judgment in fa-, vor of the plaintiffs. On rehearing, the attention of the court having been called to the fact that Jouvenat had not appealed, and that the judgment could not be modified as between appellees, this court recast its decree, and affirmed the judgment in so far as not appealed from. Corbitt et al. v. Hanson et al., 124 La. 108, 49 South. 995. Thereupon Jouvenat took the present appeal; or, rather, his trustee in bankruptcy has taken it.

Defendant and appellee, Law, has moved to dismiss the appeal on several grounds, which we now take up in regular order.

First. That there has been no citation of appeal. True, the transcript originally showed none; but it has been corrected in that respect by certiorari.

Second. That the appeal has been taken by a person not a party to the suit, and without capacity, interest, or authority to appeal in the case. There is in the transcript an order of the referee in bankruptcy directing the trustee to take the appeal. This we think shows sufficiently the authority of the trustee.

Third. That only one appeal can be taken in a case. That the first appeal exhausted the right of the plaintiffs to appeal. Inasmuch as relief could not be extended to Jouvenat on the first appeal, although the judgment against him was held to be wrong, it stands to reason that he must be allowed the present appeal; otherwise the relief by appeal to which every litigant is entitled to by law would be denied him. The constitutional right of appeal would be denied. So long as the jurisprudence by which a judgment cannot be amended as between appellees will stand, as many separate appeals will have to be allowed as there are separate interests aggrieved by the judgment. Where would be found the law against it? No law requires litigants to join in their appeals, nor fixes any time, short of one year, within: which the litigant shall be bound to take his appeal. The decisions cited by the learned counsel of appellee dealt with cases where it had been possible to extend relief on the first appeal. In them the appellant had had his day in court — per alium, if not per se. The learned counsel for appellee has. cited the cases by book and page only, without giving their titles; but, strange to say .(about the first time such a thing has come within the observation of the writer in his more than ten years’ experience on this bench), this slipshod mode of citation has enabled the court to find all the cases intended to be referred to; that is to say, the figures (by some miracle) have all turned out to be right, every one of them. As a rule, most of them and sometimes all (by misprint or otherwise) turn out to be wrong; and the court has not the slightest idea what cases counsel had in mind. It would seem to us that, if a case is worth the trouble of citing at all, it ought to be worth the trouble of citing in a way that it will be likely to be brought to the attention of the court; that is to say, by title, as well as by book and page expressed in figures,'which generally turn out to be wrong.

The 7 Mart. (N. S.) 345, case is that of Lacroix v. Menard. After the parties to the suit had appealed the case, and the judgment' had been affirmed, third persons, not parties to the suit, sought to appeal the case a second time; and the court held that this could not be done.

The 42 La. Ann. 441, 7 South. 590, case is that of E. Conery & Sons v. Waterworks Co. and City of New Orleans. The city, by her answer, made common cause with the plaintiff against her eodefendant, the waterworks company, and judgment went in their favor annulling the city’s contract with the waterworks company. The company appealed, and the judgment was reversed. The city and her coplaintiff sued out. a writ of error in the .Supreme Court of the United States; and later the city sought to take an appeal from the judgment which had been rendered in her favor in the lower court and had been reversed by this court. Whether she could do so or not, said the court, depended upon whether she had been a plaintiff or a defendant in the lower court. And the court held that as she had changed sides, and joined the plaintiff, and become a plaintiff in the lower court, the effect of the first appeal had been to make her an appellee, and that, therefore, a second appeal could not be allowed.

The 48 La. Ann. 351, 19 South. 143, case is that of Vincent v. Phillips, Tutrix. In that case a vendor had sued the insolvent succession of Phillips for the rescission of the sale of an immovable because of nonpayment of the purchase price, and had obtained judgment, and a creditor of the succession had appealed from the judgment; and, after the judgment had been affirmed, another of the creditors of the succession sought to appeal from the judgment. This court held that the first appeal had been taken for the benefit of all the creditors of the succession, and was binding on them all.

The other case cited as “Moody v. Strain, 105 La. 309,” is that of State ex rel. Heintz v. Judge, etc., 105 La. 309, 29 South. 384. In it the appellant on the second appeal had been represented on the first appeal by her warrantor whom she had called in warranty to defend the suit.

On the Merits.

The case had the careful consideration of this court on the first appeal; and we have found no reason for changing the views then expressed.

It is ordered, adjudged, and decreed that the judgment appealed from, in so far as it denied to Morris Jouvenat one-third of the fund in dispute, be set aside, and that one-third of said fund be paid to Morris Jouvenat, or to I. L. Hass, the trustee of his bankruptcy, and that the defendant, Law, pay all costs.

MONROE, J., dissents.

On Rehearing.

LAND, J.

This appeal was taken by the trustee of Morris Jouvenat after the final judgment rendered by this court in the same case on the appeal taken by D. E. Corbett. Jouvenat was a necessary party to the former appeal, as he was interested in the contract which formed the subject-matter of the suit, and he was before the Supreme Court as one of the appellees. Jouvenat appeared by counsel and joined Corbett in a motion for a rehearing. As Jouvenat was a party to the suit and a party to the appeal, he is necessarily bound by the judgment of this court ordering the fund in dispute to be distributed between Corbett and Law.

After Jouvenat took the present appeal, this court by mandamus compelled the execution of the judgment in favor of Law. The defendants against whom Corbett and Jouvenat prayed for a money judgment admitted their liability under their contract with the plaintiffs and Law, and deposited the money in court. These defendants were discharged by the judgment below. The case as decided by the district court was a contest between Corbett, Jouvenat, and Law over the distribution of the fund which had been deposited in the registry of the court. This fund has been distributed under a final judgment of this court.

Jouvenat had an adequate remedy by appeal, but did not choose to exercise his right of appeal before final judgment on the appeal of Corbett. Being found by that judgment, Jouvenat cannot have the same reversed or amended on a subsequent appeal.

In Conery, Jr., et al. v. Waterworks Co. et al., 42 La. Ann. 441, 7 South. 590, it was held:

“A second appeal cannot be allowed from a judgment which had once been appealed in its entirety and disposed of in all particulars, and in all its legal effects and bearings.
“In an appeal taken by motion in open court, all parties to the suit who are not appellants are appellees, and all are concluded by the judgment rendered on the appeal.”

In that case the court cited Lacroix v. Menard, 7 Mart. (N. S.) 345, to the effect that a judgment of the Supreme Court could not be reversed by a subsequent appeal.

In Vincent v. Phillips, Tutrix, 48 La. Ann. 351, 19 South. 143, the court in concluding said:

“The best consideration we can give this case leaves us convinced that the appeal taken by the Metropolitan Bank must be taken to have settled the law of the case, and to have fixed the rights of all parties in respect to this suit, whether it be strictly and technically res judicata or not.”

In the same case, speaking of second appeals by parties to the first appeal, the court said:

“These appeals would be substantially nothing more nor less than rehearings of our original opinion, each appellant urging errors and attempting possibly to raise new points, or to more forcibly present those already made and passed on.” .

In State v. Judges, 105 La. 309, 29 South. 384, a defendant appealed, and a codefend.ant took a second appeal after judgment in the Supreme Court. Inter alia, the court said:

“The judgment of the district court was against the defendants. She suffered her codefendant, who was the warrantor of her title, and whom she had called on to defend it, to take the appeal alone, and evidently placed her reliance on his appeal as sufficient for both. We think all the issues involved were carried up by that appeal, and that, when Strain was cast on the appeal, he lost for her as well as for himself. * * * She has; had her day in court. She cannot now demand to re-open the case by a second appeal.”

The decisions cited above rest on the principle announced in Lacroix v. Menard, supra, that a judgment of an appellate court cannot be reviewed on a second appeal. In that ease tbe court said:

“We do not believe that the Legislature intended to give more than one appeal from the judgments of inferior courts. * * * This application in truth is to obtain an appeal from our judgment, not from that of the court which decided the cause in the first instance. A decree of an inferior court, if opened by an appeal, remains so during its pendency; and, unless the appeal be dismissed, is never restored. If reversed, the judgment in the appellate tribunal could not be called the judgment of the court below. * * * We are of opinion we have no power to reverse our judgments in the ■way attempted here.”

The circumstances that a third party in interest applied for an appeal in the Lacroix Case cannot affect the general principles therein announced.

In the Conery Case, supra, page 448 of 42 La. Ann., page 593 of 7 South., the Lacroix Case was cited as applicable to an appeal by one of the parties to the suit; and the court said:

“It is clear that the language there used may, with perfect propriety, be applied to the effect now under discussion.”

Jouvenat had his remedy by appeal, but did not choose to avail himself of it. , In the appeal of his coplaintiff Corbett, Jouvenat occupied the attitude of an appellee making no complaint of the judgment below. His own laches in not appealing prevented the appellate court' from disturbing the judgment below as far as he was concerned.

It is therefore ordered that this appéal be dismissed with costs.

PROVOSTY, J., dissents.  