The opinion of the Court was delivered by
Watkins, J.Plaintiffs seek to dismiss the appeals taken by Mrs. Nannie M. Morris, J. U. Payne, II. M. Payne, Mary I. Garrard and William Curley, on the grounds that they were co-defendants with Amelia E. Keller and others, against whom judgments were rendered on the 14th of April, 1883., and 20th of February, 1885, respectively, and who were not in court when appellants obtained their orders of appeal in open court on the 28th of May, 1885, and were not cited as appellees.
In the alternative, they urge that the value of the property claimed by appellants respectively, is less than $2000, and this Court is without j urisdiction ratione materia}.
The motion including these objections was filed at the term of court at Opelousas, in July, 1885, but which was not passed upon by the court, and subsequently the record was destroyed by fire. This record having been substituted for the one destroyed, the motion to dismiss was supplemented in July, 1886.
In addition, a supplemental motion to dismiss was filed in July, 1886, in which are assigned the additional grounds, viz: First, that no legal order of appeal was granted Wm. Curley in his fiduciary capacity a,s curator; second, that neither Mary I. Garrard nor Nannie M. Morris were authorized by their husbands to execute their appeal bonds.
I
Prior to the enactment of Act 125 of 1868, amending C. P. 575, requiring appeal bonds to bo made payable to the clerk of the court which rendered the judgment appealed from, the uniform current of our jurisprudence was to the effect that, when an appeal was taken from a judgment in an action on a joint contract or in a revocatory action, all who were required to be parties below must be made parties to the appeal, though a part only have appealed, else the appeal was dismissed.
*59Since the passage of that act, our predecessors have constantly held, and we think correctly, that when an appeal is granted in open court, and the bond is made payable to the clerk of the court, all persons homing an Merest are by law parties to the appeal — those who are not appellants are appellees.
In Walton vs. Police Jury, 26 Ann. 356, the court said : “ The fact that only one of the non-resident parties executed an appeal bond, under an order in favor of all, cannot invalidate the appeal taken by him. Those who are not appellants are appellees, and the appellant has the right to prosecute his appeal, which is regularly taken, although his co-defendants may acquiesce in the judgment.” 28 Ann. 370, Succession of McKenna; 26 Ann. 220, Baker vs. Thompson; 26 Ann. 312, Frances vs. Lavine.
The appellants have fully complied with the law, and all other parties having an admerse Merest are appellees necessarily.
Appellants are clearly entitled to prosecute their appeals, although plaintiffs and appellees had obtained judgments against other defendants at antecedent terms of the court, who have acquiesced in them.
Whatever may be the effect of such an-apparent severance thiough plaintiffs’ instrumentality, in respect to such other defendants, it cannot, in any way, prejudice the rights of appellants.
On the alternative part of the motion, in respect to this Court’s want of jurisdiction, it is sufficient to say that while the defendants against whom judgments were first rendered, have no interest in common with appellants claiming separate and distinct tracts of land, yet, in respect to plaintiffs claim of title as heirs of their father and the revocation of the probate sale of January' 5,1870, the appellants’ claims are identical. They are inseparably blended, and plaintiffs have so treated them; and it would be against equity to permit them to gain any advantage of the appellants by reason of their having taken judgments by piece-meals against other defendants, and in some instances by default.
In addition to this, plaintiffs, in their petition, show that the lands which Amelia Keller bought at probate sale were valued at $39,000, and they fail to show what the separate value of the different tracts were which she subsequently conveyed to the defendants; and, as there is doubt with respect to the value of the several properties held by the appellants, we think it our duty, under the circumstances, to favor the right of appeal.
With respect to the remaining grounds, and which are contained in the. supplemental motion, filed in July, 1886— more than twelve months *60after the filing of the record — it is only necessary to observe that it came too late.
“A motion to dismiss, on account of informality in the appeal bond, or order of appeal, or even the want of the latter, must be made within three judicial days after the .record is filed.” 2 Ann. 138; 3 Ann. 326; 4 Ann. 514; 6 Ann. 115; 11 Ann. 613; 12 Ann. 745; 22 Ann. 327; 23 Ann. 467; 21 Ann. 30.
If these objections were not.waived by their omission from the motion first filed, they certainly cannot be entertained at this time.
The motion is therefore refused.