SMITH ET AL. vs. VANHILLE ET AL., 11 La. 380

Martin, J., delivered the opinion of the court. The question whether a new appeal may be resorted to, when the appellee has obtained the dismissal of the former one, is now, for the first time, presented for our decision. The right of appeal is constitutional, and it is neither our duty nor inclination to impede or obstruct its exercise. In the courts of the first instance, the dismissal of a suit, even by the plaintiff, is not a bar to a new one for the same cause of action. Reasoning by analogy, the conclusions should, perhaps, be the same in appellate courts.

The Code of Practice, however, prohibits a second appeal when the appellant, by his own act, abandons the first one. Code of Practice, 594. When the ap-táfned the ms- » decision of the meritsl'Pthe ap-fhérightofagafn appealing, and having the judg-mentoftheinfe-viewed,°U¡f he °laims it vithia the year. There is an apparent good reason for this provision. By dismissing a suit in a court of the first instance, the plaintiff obtains the faculty of presenting his claim in a more advantageous light, and of offering evidence which it is not, or may not, be in his power to produce when his case is called for trial.

It is not so on an appeal; the dismissal of which does not authorize any amendment of the pleadings, or the introduction of new evidence. If the appellant has neglected to give a sufficient bond, or omitted any formality required by law, the appellee has a right to demand the dismissal of the appeal. This, however, he is not required to do unless he chooses; and it is for him to consider whether his interest be best promoted by proceeding in the appeal, or demanding its dismissal. In the latter case, he subiects his adversary to delay and costs.

But we , -' ... , . know of no text or principle of law which authorizes us to say that the appellant looses the right of having the judgment of the inferior court reviewed, if he claims it within . the year. The appeal is, therefore, maintained.

On the merits, the appellants, who are syndics of an insolvent estate, had filed a tableau of distribution, showing that the estate surrendered into their hands, had been legally and fully administered; the claims of the plaintiffs were placed thereon, and the tableau showed that every part of the property of the insolvent which was applicable, had been applied to the extinguishment of their debt, whereby the syndics were entitled to their discharge.

The advertisements required by law were published, and judgment of homologation of the tableau and discharge of the defendants and appellees was pronounced, and has become res judicata. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.