Dumas v. Mary, No. 5455

No. 5455 | La. | Nov 15, 1877

The opinion of the court was delivered by

Egan, J.

The surety upon the appeal bond in this case died insolvent after the transcript was filed in this court. A rule was taken in the court below upon the appellant to show cause why he should not give new and sufficient surety. The rule was made absolute, and appellant ordered to furnish the required new surety within a delay fixed by the court. He has not complied with the order.

The solvency and sufficiency of the surety on an appeal bond is peculiarly within the province of the court of original jurisdiction. From its order in the premises he has not applied to this court for relief, and the action of the court below is presumed to be regular and based upon sufficient evidence. The motion to dismiss this appeal must prevail. 21 An. 178; 16 An. 192; 19 La. 178; 22 An. 113; 23 An. 714; 25 An. 424.

Although this ground is not expressly taken in the motion we have the less difficulty in dismissing the appeal for the reason that the surety upon the injunction bond was likewise the surety upon the appeal bond. This he could not lawfully bé, as he was a necessary party to the appeal. See 18 An. 659.

It is therefore ordered, adjudged, and decreed that the appeal be dismissed at the cost of the appellant.