
    No. 748.
    Christophe Camutz, Syndic, v. The Bank of Louisiana.
    All parties having an interest in maintaining the judgment of the lower Court, must be made parties to an appeal therefrom, otherwise the appeal will be dismissed.
    Where an appeal has been granted in chambers, citation of appeal must be addressed to and served on the appellee, in the capacity in which he appears on'the record in the lower Court.
    Citation of appeal, in a personal capacity, where the record shows that he occupies a representative capacity only, is defective, and the appeal will be dismissed.
    PPEAL from the Third District Court of New Orleans, Felbwes, J.
    
      G. L. Bright, for plaintiff and appellee.
    
      Miles Taylor, for defendant and appellant.
    
      Brief of plaintiff' and appellee.
    
    This is a suit by Christophe Camutz, syndic of the creditors of Mrs. Henriette Brand; syndic of the creditors of the succession of J. A. Braud, and syndic of the creditors of the succession of Amandeo Landry, and especially authorized to represent the firm of J. A. Braud & Landry.
    The appeal should be dismissed, because the plaintiff is not cited to answer the appeal. The citation is addressed to and was served on Christophe Camutz, individually, and not in his representative capacities. Individually, he is not a party to this suit. The appeal bond is made in favor of Christophe “ Camutz, syndic.” He is plaintiff in the additional capacity of “and specially authorized to represent the firm of J. A. Braud & Landry.”
    This authority, to represent the firm of J. A. Braud & Landry, is by a special order of the Court. Because he is the syndic of the creditors of Mrs. Henriette Braud; of the successions of J. A. Braud and Amandeo Landry, he is not thereby authorized to represent the firm, which is in law a different person from the individual members of the firm; it is by virtue of the special authority he is plaintiff, consequently the bond should have been in his favor as syndic of the creditors of Mrs. Henriette Braud; of the successions of J. A. Braud and Amandeo Landry, and in Ms favor as the representative of the firm of Braud & Landry.
    In the ease of Clark v. Hebert, 14 An. 183, this Court said: “This is a motion to dismiss the appeal in this case. The suit has been brought against the defendant in her capacity of tutrix to the minor children of Vincent Kirkland, deceased, and the defendant in her capacity of tutrix has set up a reconventional demand.
    The appeal bond is executed by the plaintiff in her favor in her individual capacity only. The appeal is defective, in not making the defendant a party in her capacity as tutrix. It is ordered that the appeal be dismissed.” If it be necessary that the bond be given to the appellee in his representative capacity, can it be less necessary that he be also cited in his representative capacity?
    The appellee, not having cited all the parties interested in the judgment, the appeal must be dismissed. 13 An. 231, 296. 2 An. 452.
    Camutz, individually, is in no way interested. He is interested only in a representative capacity.
   Hyman, C. J.

Plaintiff sued defendant as syndic of Henriette Braud; of the creditors of the succession of J. A. Braud; of the creditors of the succession of Amandeo Landry, and as representing the firm of J. A. Braud & Landry, and in that capacity recovered judgment against defendant.

Defendant appealed from the judgment, and failed to give an appeal bond in favor of the firm of J. A. Braud & Landry, or their representative.

The firm of J. A. Brand & Landry, therefore, are not parties to the appeal, and they are interested in having the judgment maintained.

Parties to a judgment, having an interest in maintaining it, must be made parties to an appeal therefrom, or the appeal will be dismissed. 14 An. pp. 315 and 316.

Let the appeal be dismissed.

Petition for a Rehearing, by defendant and appellant. — -The petition of the Bank of Louisiana, the defendant and appellant in the above-entitled case, respectfully represents:

That appellant is informed, and believes, there is error in the judgment of the Court rendered in the said case on Monday the 14th of January, 1867, dismissing said appeal, and now applies for a rehearing of the cause.

Petitioner further represents that it is informed, and believes, that the said judgment is erroneous, for the following reasons, and now submits the same with the subjoined citations of authorities in support of that opinion:

1. The appellant, in the petition of appeal, as will be seen by the original thereof, which is herewith presented for inspection, gave the title of the case in the lower Court in the following words: “ C. Camutz, Syndic of, etc. v. Bank of Louisiana,” together with the number of the case on the docket of the lower Court, and in the prayer of the petition prayed that “ the said Christophe Camutz, syndic, the plaintiff in the said case, may be cited according to law,” to answer the same.

2. A copy of this petition, together with the citation, was served on him in person, on the 19th June, 1865.

3. The transcript of the appeal was filed according to law, on the 11th day of November, 1865, further time for bringing it up having been granted.

4. Two agreements were entered into by C. Camutz, syndic, the appellee, with the appellant, in relation to the transcript of appeal, and perfecting it for a hearing long after the service of the citation upon him, viz: one on 7th of November, 1865, p. 17th of the transcript, and one on the 2d day of June, 1866. See ev. of transcript.

5. No motion, in writing, to dismiss the appeal has ever been made in, the cause by the appellee, and the only reference to the matter of dismissal is made in the brief of the apjDellee, filed as the case was about to be heard.

Upon these facts, as shown by the record, the appellant respectfully suggests that the judgment dismissing the appeal was erroneous, because:

1. The case had been twice set down for trial. There was no motion whatever made to dismiss the appeal on any ground. Such a notion could only be made in the Supreme Court by the appellee within the three days after the time allowed him for appearance by the citation of appeal, and the Court could not base a judgment upon a suggestion contained in a brief. Murray vs. Bacon, 7 N. S. 271. O’Donald vs. Lobdell, 2 L. 300.

2. The service of the citation was sufficient, because it was accompanied by a copy of the petition of appeal, in which the plaintiff and appellee is described in his representative capacity, and there is a prayer for his being cited in that representative capacity. Gertum est quod cerium reddi potest.

3. The acts of the appellee in appearing in Court to perfect the transcript of appeal, and to prepare it for a hearing, by signing various agreements in the cause in his reprfereutative capacity through his counsel, and going to trial on its merits, without making any motion to dismiss, would have been a waiver of citation, if the service b ^e had been defective. Debreys vs. Johnson, 4 N. S. 286. Rowlett vs. Shepherd, 4 L. 91. Livingston vs. Dick, 1 A. 323.

4 The appellee has not the right, in any case, to a dismissal cf an ap-, peal “ on account of any defect, error or irregularity in the petition or order of appeal, or in the certificate of the clerk or judge, or in the citation of appeal, or service thereof,” etc., “whenever it shall not appear that such defect, error, or irregularity is imputed to the appellant,” etc. See Acts of 1839, p. 170, sec. 19.

Here, if the citation, or service of it, be defective, the error or defect is attributable to the clerk, and not to the appellant; and if the appellee had a right to avail himself of the error, or defect on the hearing of the cause, then the Court is by law expressly prohibited from dismissing the appeal, and it is made its duty to “ grant a reasonable time to correct such errors or irregularities (in case they are not waived by the appellee,”) etc. See Acts of 1889, p 170, sec. 19; Ratliff vs. His Creditors, 14 L. 292-3; Comstock vs. Pari & Smith, 17 L. 516; Lee vs. Kemper, 3 R. 1; William Barry Grove vs. William Harvey, 3 R. 271; Lambeth et al. vs. Vawter et al. 6 R. 130-1; Broussard vs. Broussard et al. 2 A. 769; Anderson vs. Irwin et al. 6 A. 793; Cullibes vs. Joublanc, 12 A. 237; Barton vs. Kavanaugh, 12 A. 332; Surgi vs. New Orleans, 13 A. 32; Lewis vs. Hennen, 13 A. 259; Jones vs. Capperton, 14 A. 698; Ludeling vs. Frellsen, 4 A. 534.

Os Rehearing.

Hyman, C. J.

Plaintiff sued the bank in his capacity as syndic of tho creditors of Henriette Braud, and J. A. Braud, and also as syndic of the creditors of the succession of Amandeo Landry, and obtained judgment in that capacity against the bank.

The bank filed a petition for appeal, and the Judge granted the appeal in chambers, and not in open court.

When an appeal is so ordered, it is necessary that citation of appeal be made on the appellee (C. P. 581 and 582) and the plaintiff suggests the dismissal of the appeal, because no legal citation of the appeal has been made on him as appellee.

Citation of appeal was addressed to him, and served on him as an individual, and not in his representative capacity.

Camutz was only a party to the suit in a representative capacity, and in that capacity should the citation have been directed to him. The appellant has not asked for time to correct the irregularity in the citation.

Let the appeal be dismissed, at appellant's cost.  