On Motions to Dismiss. After this suit was at issue between the plaintiff and the defendants, one Harry B. Busbey intervened, and the case was tried on the demands of all the parties litigant. The court below rejected plaintiffs' demands, and rendered judgment in favor of the intervener against the plaintiffs and the defendant Florsheim Bros. Dry Goods Company, Limited. From the judgment in favor of the intervener, the Florsheim Bros. Dry Goods Company, Limited, appealed suspensively, and the transcript was filed in this court under the No. 28770 on June 22, 1927. Subsequently, the plaintiffs appealed devolutively from the judgment against them, and the transcript was filed in this court under No. 29204 on the return day, March 19, 1928. On March 22, 1928, the plaintiffs and appellants applied for an order to use in connection with their appeal, the transcript which had been filed previously in this court under the No. 28770. This order was granted over the written opposition of the Florsheim Bros. Dry Goods Company, Limited. That company then moved to dismiss the appeal for want of a legal transcript. Thereafter the plaintiff and appellants filed a motion for the consolidation of the appeals.
The motion to dismiss must be denied. The application of the plaintiffs and appellants to use for the purpose of their appeal the transcript previously lodged in this court was granted under the authority of rule I, section II, of the Rules of this court. See 136 La. p. viii. The rule reads as follows, viz.:
"Where there is a subsequent appeal in a case or growing out of a case theretofore appealed to this court, the transcript already lodged here, may, on obtaining leave of this *Page 608 court, be used for the purposes of such subsequent appeal, and the transcription of its contents dispensed with."
Under this rule, it is immaterial that the transcript in the appeal No. 28770 was paid for by the Florsheim Bros. Dry Goods Company, Limited, and prepared under the direction of its counsel. The only concern of this court is whether the present appeal is in the same case or grows out of the same case previously appealed here. We find this to be the fact. The motion to consolidate the appeals has been granted, and both transcripts are properly before the court to be considered together. Cf. Rosenberg v. Derbes, 165 La. 407, 115 So. 637.
For the reasons assigned, the motion to dismiss the appeal is denied.