9 La. Ann. 478 | La. | 1854
The plaintiffs having obtained a judgment against Fearn, Bonegan & Go,, the latter obtained, on the 1st of March, 1854, an order for a suspensive appeal, and filed within the legal delay, an appeal bond for the proper amount, with Kendall, Toe & Go. as sureties. On the 26th of April, 1854, after the transcript of appeal had been filed in this court, the plaintiffs took a rule in the court below on the defendants, to show cause why the appeal granted, should not be dismissed, and why execution should not issue against Fearn, Bonegan & Go, for the amount of the judgment and costs, on the following ground; “That the surety, Kendall, Tie & Go., on the appeal bond filed herein, is not good and solvent, as required by law.” At the hearing of the rule, Fearn, Bonegan & Go. offered a new surety of unquestionable and unquestioned solvency, who being examined as a witness, deposed, that he was worth many times over the amount of the required bonds. He also declared his willingness to sign a new bond, and that when Kendall, Toe & Go. signed the bond, they were considered solvent merchants, and in good credit. Another merchant, who had known Kendall, Toe & Go. for several years, testified that he had had extensive transactions with them ; that he considered them solvent, and they were so regarded in the commercial community. That they
We think the District Judge erred. The right of appeal is a constitutional right, and in the present case, the right of suspensive appeal was clearly conferred by the law, If a party in good- faith fulfils within the legal delay, the conditions upon which the right of suspensive appeal is granted, it would be an inequitable and harsh construction of a provision of law framed for the protection of defendants, to say that his right should be defeated by a subsequent contingency unforseen, and over which he had no control, the subsequent failure of his surety, Such a doctrine would also involve an inequality which could not be reconciled with equity. Por by Art. 3012, when the security received “ by the direction of law,” becomes insolvent, his place “ should be supplied by another,” il doit en étre donné une autre. The rule is derived from the Napoleon Code, and originally from the Roman law. Si la caution, says Pothier, avait les qualités lorsqu’elle a été repue, mais qu’elle ait cessé depuis de les avoir; pourtant, si de solvable qu’elle était, elle est devenue insolvable, le débiteur sera-t-il obligó d’en donner une autre ? II faut distinguen II y sera obligé si c’est une caution légale ou judiciaire. Si calamitas insignis fidejussoribus vel magna inopia accidit, ex integro satisdandum orit. L. 10, §1, quit satisd. cog. L. 4, ff. de stipul. praet. Pothier, Oblig. No. 392. If the creditor, in such case, can compel the debtor to furnish a new surety, it is
We do not concur in the obiter dictum in Stanton v. Parker, 2 Rob. 651, where it is intimated that if the surety has become insolvent after the appeal was brought up, it is the same as if no security had been given. We think tbe distinction between the two cases is manifest. In the one case, the requisition of the law has been disregarded; in the other, the party has in good faith complied at the time, and the subsequent failure of the surety is not the fault of the principals.
Considering that by the filing of an appeal bond sufficient at the time to the fulfilment of other formalities, the appellate jurisdiction of this court had attached; that the benefit of the right of suspensive appeal once lawfully acquired, should not be totally lost by reason of the subsequent failure of the surety; that the case under the answer of the District Judge and the antecedent proceedings of record, presents no contested question of fact, but a question of law merely; and that the intex'foronce of this court, under the circumstances, is necessary for the prompt maintenance of its appellate jurisdiction.
It is therefore ordered, that a writ of prohibition issue, commanding the District Judge not to allow, and the Sheriff not to take any further action upon the execution issued in said cause of Gray et al. v. Fearn, Donegan & Co., provided the said relators shall, within three days after the filing of the mandate of this court in the court below, furnish to the satisfaction of said District Judge, a new appeal bond, dated nunc pro tunc, with a good and solvent security conditioned according to law, and for the amount required in cases of sus-pensive appeal.
Authorities referred to by the court: State v. Buchanan, 18 L. R. 575 ; State v. Judge of First District, 19 L. R. at page 178.