23 La. Ann. 704 | La. | 1871
C. Yale, Jr. & Co. having issued execution against John G. Randle & Co. upon a judgment rendered against that commercial partnership in 1858, and caused to bo seized by the sheriff certain lands, the property of Allen Green, who had boon one of the partners of the firm of John G. Randle & Co., Green sued out an injunction to stay the execution, alleging several grounds why the judgment of C. Yale, Jr. & Co. should not he executed, and chiefly that the judgment was prescribed by tlio lapse of more than ten years from its rendition before the issuance of the execution, the judgment not having been revived according to law to continue it in force.
The defendants in injunction moved to dissolve the writ, and assigned the following grounds:
Second — That the bond is insufficient in amount.
Third — That the parties executing the bond are not bound jointly and severally, and they can not be condemned in solido in damages.
Fourth — That the bond is further defective for the reason that it does not set forth what proceedings of the sheriff the injunction is directed against.
There was judgment in the lower court dissolving the injunction, the judge a quo considering the bond insufficient in amount. The plaintiff appealed.
There is a motion to dismiss the appeal on the ground that it is premature, the appeal having been taken before the judgment became definitive by the signature of the judge. We think this is not a sufficient reason for dismissing the appeal. Our predecessors so decided in a case found in 12 An. 289, predicating their decision upon the general custom in the country of signing judgments on the last day of the term, deeming it sufficient that the appeal be taken at the same term of the court. To this view of the question we incline to adhere. See also 15 An. 521. The motion to dismiss is therefore overruled.
Recurring to the grounds of the motion to dissolve
First — It is shown by affidavit that the district judge was absent from the parish at the time the parish judge rendered the order for the injunction.
Second — The amount fixed by the order of the parish judge for-which the bond was to be given is $5000. For this amount the bond was given, and being for a stay of execution, we think the plaintiff complied with the law in executing his bond for the amount fixed by the judge. C. P. article 804.
Third — In becoming obligors on judicial bonds, the parties contract in reference to the law. C. P. article 304; 1 An. 157
Fourth — The surety is a party to the suit, and his obligation is regulated by the petition, affidavit, order of the judge, etc., and any descriptive omission in the bond is cured by reference to them. 12 An. 68; 15 An. 465. The bond being among the papers with the title and number of the suit upon it, shows sufficiently what proceedings of the sheriff are enjoined.
It is apparent from the record that the plaintiff would be entitled to another injunction if this should fail through informalitjj
It is therefore ordered, adjudged and decreed that the judgment of the district court bo annulled, avoided and reversed. It is further ordered that the injunction be perpetuated, the defendants and appellees paying costs in both courts.
