35 La. Ann. 725 | La. | 1883
The opinion of the Court was delivered by
This appeal is from a judgment setting aside an attachment because of a defective bond, or as the Judge below expresses it, a bond utterly null and void. The 'cause of nullity is stated by him to be the failure to recite in it the name of the case, or under what title the writ issued, and the ruling is based on Percy vs. Millaudon, 6 La. 585; Dunlap vs. Price, 10 Ann. 155; Suc. of Walker, 32 Ann. 525.
Neither of these decisions have any bearing on the question. They relate to appeal bonds. The difference between appeal bonds and attachment bonds is too patent to require specification. They serve different purposes aud are regulated by different laws.
The bond in tills case is dated February 28,1882. The affidavit was made a week before, and the petition was filed and the order granted March ,11th following.
It is not unusual or irregular that the bond should antedate the filing of the petition, and there is an obvious reason why the name and number of the suit should not appear in the bond. The law contemplates that the bond may be executed anterior to the filing of the petition by expressly providing that the writ may issue “ without any petition being then presented,” Acts 1880, p. 20, and in that event the writ would issue before the case is numbered and docketed.
But although this lack of correspondence in dates is unimportant, the bond should contain recitals which unmistakably indentify it with the other proceedings in attachment. The remedy of attachment is harsh and rigorous, and it has been often said the party using it must bring himself within its plain intendment. The observance of the legal requisites is a condition precedent to the exercise of the right.
The recital of this bond is, “ whereas Charles Hann has this day presented a petition to the Civil District Court for the parish of Orleans pray ing a writ of attachment to issue, now the condition of the above obliga
There is no indication of the person, or property'against which the writ is issued. There is nothing in any recital qf the bond connecting it with Ruse, or with any proceeding against-Ruse’s property.
The plaintiff’s counsel insists there need be none, becatise tlie bond is required to be annexed to the petition,' and is explained by it. Annexing the bond is required equally in cases of arrest,.sequestration, and injunction. This bond purports to be for a -petition that day presented. No petition asking process against Ruse or his property was presented on that day, or on the following day as it might have been,' and not until eleven days thereafter. ....
The amount of the bond would not serve to identify it with, the petition. The sum claimed is $2,000 less credits of $75. The amount of the bond should bé a sum equal to that which is claimed. Code Prac. Art. 245, amended by Acts of 1880, p. 21. The bond is for.$3,200. We refer to the amount of the. bond only in connection .with the question of identity. The bond has not been filed.with the suit, that is, it has not been marlked by the clerk in any manner that would identify it with the suit. ...... . .. ,
So far as the surety’s obligation upon. the. bond goes, there is nothing appearing that he is surety for any damages to result from attaching Ruse’s property. If sued upon it,.-and he should plead in defence that he was surety for an attachment taken out on February 28th and no other, and that he was not surety on any attachment of Ruse’s property, and should object to parol testimony connecting his obligation with the attachment actually levied, how could this bond be -identified with that process?
An attachment, bond should contain recitals which indicate unmistakably, and without the aid of extraneous proof, what or .whose property is to be attached, so that the party aggrieved by the execution of the writ may have his recourse upon the bond and the surety thereto, without resorting to other methods of connecting the one with the other. .
We have shewn that this requisite has not been complied with in the present case, and the proceedings must be set aside,
Judgment affirmed.
Rehearing refused.
