On Motion to Dismiss.
The opinion of the Court was delivered by
Poché, J.The grounds of the motion will he better understood by a reference to the proceedings which preceded and led up to the judgment appealed from.
Pending a devolutive appeal to this Court from a large moneyed judgment rendered against the defendant in the suit entitled “ Ann McConnell vs. John Pasley,” execution was issued, and the plaintiff in suit became the adjudicatee of considerable property seized in said execution. On trial of the appeal, the final judgment of this Court reduced very materially the amount of the judgment appealed from, in fact to a sum less than one-half of the price of adjudication of the property of the seized debtor to the seizing creditor.
John Pasley then brought a suit for the nullity of the sale in execution of his property as hereinabove stated, but he was defeated. 38 Ann. 470.
He then had recourse to another action, with the object of enjoining Mrs. McConnell as purchaser, and her transferees, of the property in question, from interfering with said property, which he therein claimed as his own, and from taking possession thereof.
This is the suit hereinabove, entitled “John Pasley vs. Aun McConnell,” No. 18,001, Division “ B,” to which it had been allotted as an original suit.
In that court, the cause was on an exception to the jurisdiction of the court, transferred to Division “ C,” where the original suit was pending, and of which the present action was held to have been an incident; a proceeding to regulate the execution of the judgment. Tn the latter court it was cumulated with the original suit, and it was dismissed on an exception of res adjudieata.
The present appeal was taken from that judgment.
*611I.
In drawing their motion of appeal, counsel for appellant headed it with the title of the suit entitled and numbered,John Pasley vs. Ann McConnell, No. 18,001,” only; and that incident furnished the first ground of appellee’s motion to dismiss.
It would unquestionably have been safer and more regular for counsel to have adopted the identical title which headed the judgment appealed from, and which heads the opinion; but that irregularity is not sufficient to vitiate the motion or the order of appeal, as both leave no doubt as to the precise judgment from which the appeal was intended.
Both titles appear defective and illogical. Either the new proceeding was a part or an incident of the main or original suit, or it was an independent original action. If the former, then the new title should have been dropped or merged in the original suit; if the latter, then the cumulation, as it is called, was erroneous. But neither error could in justice be attributed to appellant.
His motion conveys all the information necessary to identify his appeal with the judgment complained of.
II.
Prom appellant’s petition it appears that there were several defendants in his proceeding, and henoe in some parts of the record his action is entitled "John Pasley vs. Ann McConnell et als.," whereas, in his motion, he omitted the words et ah. That is the subject of the second ground of the motion to dismiss, whence it is argued that all the defendants have not been cited.
But the motion was made in open court, and therefore no citation was needed; and all parties to the proceeding, who were not appellants, became appellees, if there was an appeal at all; and we have already shown that the motion was substantially sufficient to bring up • the appeal. It cannot be destroyed by a clerical error.
III.
It is next contended that the appeal bond is radically defective, because it recites that the appeal is taken from the judgment in the suit of John Pasley vs. Ann McConnell, No. 2452, an entirely different suit from that described in the motion and in the order of appeal.
In this assertion appellees are mistaken ; the recital is as follows : “ Whereas, the above bounden John Pasley has this day filed a motion of appeal from a final judgment rendered against Mm, in the suit of John Pasley vs. Ann McConnell et als., No. 2452, Civil District *612Court, cumulated with No. 18,001 of the Civil District Court, for the parish of Orleans, on the 30th day of May, 1887, and signed on the 3d day of June, 1887.”
Hence it appears that the only error of the recital consists in transposing the numbers of the two proceedings. But otherwise the bond is fully identified with the motion of appeal and with the judgment appealed from. The irregularity is not of such gravity as to defeat appellees in an action on the bond.
IV.
The fourth and last ground of the motion rests on a complaint levelled at the clerk’s certificate, in which he erroneously makes “John McConnell defendant in the suit in which “Ann McConnell!’ is plaintiff; but the certificate recites that the transcript refers to a judgment rendered in matters numbered respectively Nos. 18,001 and 2452.
That is sufficient to show that there was merely a clerical error in one of the titles, especially as one of the suits is correctly described. The whole record is a bungle, in which one error is engrafted on another, but none sufficient to justify the dismissal of the appeal. Courts can and must deplore such careless and inartistic work emanating from officers whose labors should be characterized by neatness and precision, but they are forbidden by a sense of justice to deny the rights of an appellant, on account of the inaccuracies of his counsel, or of the unpardonable negligence or ignorance of a ministerial officer. Eschert vs. Harrison, 29 Ann. 860; Granger vs. Reid, 36 Ann. 845.
It is, therefore, ordered that the motion to dismiss this appeal be overruled at the costs of appellees.
Todd, J., absent.