Union Garment Co. v. Newburger

Citations

• 124 La. 820
• 50 So. 740
• 1909 La. LEXIS 549

Syllabus

<p>1. Appeal and Error (§ 630*) — Dismissal-Incomplete Record — Loss.</p> <p>If the court is unable to review the judgment appealed from because a material part of the record has been lost without appellant’s fault, the appeal will not be dismissed, but the case will be remanded for new trial.</p> <p>2. Action (§ 57*) — Consolidation—Same Issues.</p> <p>Plaintiff, having purchased property of an insolvent firm at the liquidators’ sale, sued in the civil district court for specific performance and to cancel a mortgage on the property made by one of the partners after the sale, but before its consummation, on the ground that such mortgage was fraudulent, in which suit the liquidators, the auctioneer, the firm, and its members, and the nominal mortgagee were made defendants. Pending such suit, the holder of the mortgage notes began executory process in another division of the court, in which plaintiff intervened and enjoined the executory process on the ground of fraud in executing the mortgage; and thereafter petitioned that the holder of the notes be made a defendant in the specific performance suit, and the executory process suit was transferred to the division in which the specific performance suit was pending, and the suits were consolidated. Held that the suits, being between the same parties and involving the same issues, were properly consolidated, though the consolidation was not expressly authorized by Code Prac. art. 422.</p> <p>3. Appeal and Error (§ 189*) — Presentation Below — Objections — 'Consolidation op Actions.</p> <p>Objections to the transfer of a case to another division of the civil district court and its consolidation with an action there pending cannot be first made on appeal.</p> <p>4. Principal and Agent (§§ 155, 175*) — Rights of Parties — Authority to Purchase.</p> <p>A purchase of property at an auction sale by an unauthorized agent was not binding upon the nominal purchaser until ratified by it, ánd was not'binding upon the sellers, and t