Charvanel v. Esvard

90 So. 658 | La. | 1922

BAND, J.

Plaintiff instituted suit in the civil district court for the parish of Orleans against the defendant, a nonresident, for the sum of $10,020.50, and attached some real estate belonging to' defendant, who was represented in these proceedings by relator as curator ad hoc.

After á trial on the merits, a judgment was rendered in favor of the plaintiff and against the defendant, in the said sum of $10,020.50, interest and costs, maintaining the attachment and decreeing that the effect of said judgment should be limited to the property under attachment. Relator, as curator ad hoc, obtained an order of suspen-sive appeal on behalf of said absent defendant; said suspensive appeal being granted to relator on his furnishing a bond for costs merely. Relator, as durator ad hoc, furnished the bond required by the order of the appeal, and filed the transcript in this court.

Subsequently, the plaintiff proceeded by rule in the lower court to have the appeal dismissed, for the reason that the bond for costs was insufficient and should have been for one and one-half times the amount of judgment.

The trial judge ordered the appeal dismissed. Relator avers that this ruling was erroneous and prejudicial to the absentee defendant and to relator, as the only bond that could be required for a suspensive appeal is a bond for costs, as the property at-' tached has at all times remained in custodia legis und,er said attachment.

Relator further avers that, by the filing of his appeal bond in the lower court, this court was seized with jurisdiction of said cause, and the lower court divested thereof, and the district court, in dismissing said appeal, usurped jurisdiction, and thereby will cause irreparable .injury to the absent defendant and to relator, unless the execution of said judgment of dismissal is restrained by this court through a writ of prohibition.

[1] It is well settled that the right to determine primarily whether the appellant has complied with the requirements of law is vested in the district court, but his decision is subject to the revision of the Supreme Court, and that proper remedy for correcting the illegal rulings of the district judge in dismissing the appeal, after a suspensive appeal has been granted or a bond has been filed, is by writ of prohibition. State ex rel. Johnson v. Judge, 21 La. Ann. 113; State ex rel. Beebe v. Judge, 23 La. Ann. 31; State ex rel. Storrs v. Judge, 21 La. Ann. 736; State ex rel. Dezutter v. Judge, 24 La. Ann. 316; State ex rel. Lynne v. Judge, 24 La. Ann. 328; State ex rel. Shropshire v. Judge, 23 La. Ann. 491; Reynolds v. Egan, 122 La. 47, 50, 61, 47 South. 371; Interstate Bank v. Powell Bros., 124 La. 624, 628, 50 South. 605.

[2] It is also the settled jurisprudence of this state that, under article 575 of the Code of Practice, the execution of a judgment for a specific sum of money can be suspended by the defendant only by executing bond and security exceeding by one-half' the amount of the judgment. Relator does not allege, in his application for relief, the value' of the property attached. Plaintiff, as attaching creditor, has a lien on the property seized, and the doctrine contended for by relator would enable a debtor to suspend the execution of a money judgment for a specific sum against him on a bond for costs in all cases where the judgment recognized a mortgage, privilege, pledge, or any other kind of lien on property of any kind, regardless of its sufficiency to satisfy the judgment, with interest and costs.

None of the eases cited by relator sustain his contention. In the case of State ex rel. Brewing Co. v. King, 46 La. 490, 15 South. 147, cited in relator’s application, the point adjudicated is thus expressed in the syllabus:

“An order directing the sale of the property of a corporation which is in the hands of a receiver may be suspensively appealed from by the corporation, on a bond sufficient to cover costs of appeal — the property being in custodia legis and under control of an officer of court.”

However, in the case of Pratt Engineering & Machine Co. v. Cecelia Sugar Co., 133 La. 1003, 63 South. 496, this court, in commenting on the decision in the 46 Louisiana case, said:

“The court held that the corporation was a third person against which no money judgment had been rendered, and against which no judgment could be rendered on appeal save for' costs. * * * The court differentiated the ease from that of a money judgment against a party cast covered by article 575 of the Code of Practice.”

The view taken by the judge of the lower court in his return as to the amount of the suspensive bond required in this case is sustained by the decisions of this court in State ex rel. Block v. Judge, 44 La. Ann. 564, 10 South. 866; State ex rel. Warsell v. Judge, 22 La. Ann. 115; Pratt Engineering Co. v. Cecelia Sugar Co., 133 La. 1003, 63 South. 496; Leon Godchaux Co., Ltd., v. Gall, 139 La. 751, 72 South. 217; Pasley v. McConnell, 38 La. Ann. 470.

[3] The curator ad hoc of an absentee cex--tainly does not possess greater rights in the matter of taking a suspensive appeal than the defendant himself would have.

[4] The jurisprudence seems to be now firmly settled that it is only after a suspen-sive appeal has been obtained and perfected that the lower court ceases to have further juiusdietion over the case, and that the door has always been wisely left open for the determination by the court of the first instance of the question whether the judgment suspensively appealed from shall not be executed either because the case is unappealable, or because no bond has been furnished or because that furnished is insufficient, or because the surety does not possess the required qualifications. State ex rel. Gill v. Tissot, 34 La. Ann. 90; State ex rel. Feibleman, Sons, etc., v. Judge, 45 La. Ann. 1426, 1427, 14 South. 428.

In the case of State ex rel. James Bankhead v. Judge, 22 La. Ann. 35, in which the district judge, after fixing the amount of the appeal bond in executory proceedings at a sum less than that required by article 575 Code of Practice, rescinded the order of appeal, this court said:

“To suspend the execution of a judgment for a specific amount, whether it be an order of seizure and sale or an ordinary judgment, the appeal bond must conform to article 575 C. P. * * * If the appellant fails to furnish such a bond, within the legal delays, the ap-pellee has the right to proceed with the execution, notwithstanding the appeal. C. P. 578; 9 Rob. 186; 5 La. 129; 5 Ann. 360; 12 Ann. 175.”

[5] The learned trial judge in his return to relator’s application states that—

“He did not usurp jurisdiction, but exercised proper and appropriate functions in dismissing the appeal for want of bond required by law to support a suspensive appeal.”

It is therefore clear that the judge a quo dismissed the appeal in this case entirely. This was illegal, as said appeal should have been dismissed only in so far as opei’ating suspensively, and should have been decreed to be merely devolutive, for the reason that, while the bond was inadequate in amount for a suspensive appeal, it was adequate as a bond for costs to sustain a devolutive appeal; the amount of said bond having been fixed by the lower judge to cover costs in this suit. Thurston v. Rosenberg, 144 La. 629, 81 South. 206.

It is therefore ordered, adjudged, and decreed that the order of the judge a quo be restricted in its meaning to dismissing the appeal- of relators in so far as suspensive, leaving the appeal in full force as devolu-tive, and that the application for writ of pi’ohibition be othei’wise dismissed.

O’NIELL, J., dissents.