77 So. 116 | La. | 1917
The only question involved in the present controversy is whether a district judge who has signed an order for a suspensive appeal to the Supreme Court, wherein he inadvertently fixed the amount of the bond far below the amount required by law for a suspensive appeal, may lawfully rescind his order and thereby vacate the suspension of execution with which the judgment had been affected by the order for a suspensive appeal.
Defendants in the above cause, having been condemned by a judgment rendered contradictorily, on June 22, 1917, to pay plaintiffs the sum of $1,000 with interest and costs, prayed for and obtained on July 3, 1917, a suspensive appeal from said judgment, returnable to the Supreme Court, July 23, 1917, on a bond for $100. Thereupon plaintiffs ruled defendants on July 13, 1917, to show cause why said bond should not be increased to a sum of one-half over and above the judgment for $1,000, and that upon their failure to furnish such bond within two days from the service of said rule, excluding Sundays, legal holidays, and half-holidays, the suspensive appeal herein stand dismissed and execution of said judgment be issued according to law. On July 16, 1917, six full days before the return day, the rule was tried and made absolute, and defendants having failed to furnish bond as required by law, for a suspensive appeal, execution was issued. . It was then that defendants, relators in the present proceeding applied for writs of prohibition and certiorari from this court. An order was accordingly issued returnable October 1, 1917, and in answer thereto the return of the district judge shows the facts to be substantially as herein recited.
The decisions of this court in Audubon Hotel v. Braunig, 119 La. 1070, 44 South. 891, Reynolds v. Egan, 122 La. 47, 47 South. 371, In re Inter State Trust & Banking Co., 124 La. 628, 50 South. 605, and Moniotte v. Bouanchaud, 139 La. 445, 71 South. 735, are all to the effect that a district judge may rescind and set aside an order for a suspensive appeal, where the same was improvidently granted or where a bond is insufficient in amount, and that thereupon the judgment may be executed. We therefore answer the question here at issue in the affirmative.
Eor these reasons, the writs herein issued are recalled, and the relief prayed for by relators is denied, at their costs.
