Ross v. Pargoud

2 La. 85 | La. | 1830

Martin J.

delivered the opinion of the Court.

The dismissal of the appeal is prayed for, on account of the insufficiency of the bond. The Judge required it for a sum exceeding by one half the amount of the judgment. In making his calculation the appellant does not appear to have noticed that the judgment was for a principal sum and interest. The bond exceeds by one half the principal sum : but not this sum and the interest due at the rendition of the judgment.

There cannot be any doubt that interest given by a judgment, is part of the judgment, and ought to be secured on an appeal as well as the principal sum. rr r r

, But the appellants counsel urges that the bond is for the . , T i • i i sum requn’ed by law, and if the Judge required a larger sum, the party was not bound to give security therefor: and he has referred us to the Code of Practice, Article 575, — which speaks of a sum exceeding one half the amount of the judgment.

ical mistake, or ty-fnft^part of the Iclls^l^ofthe Code of Practice, Which says the appeal must be taken amountofthe^judg «J! eeedins by * Hf tft< one half the amount, &c.” The appeal bond must exceed uy one amount of mentWh°ippealed SSitaTto?» pensive appeal..

We believe there is a clerical or typographical error in this part of the Code, and that the intention of the article was as the district Judge has understood it. As far as our knowledge goes, it has been until now understood that the bond should be for “a sum exceeding by one half the amount, &c.” It is clear either of these articles “ by ” or “of” was . accidentally omitted.

The French text of this article places it beyond a doubt, that the participle “by”was intended. But it is true'theEng-lish and not the French text, is to govern. In the two next articles, 576 and 577, which treats of judgments for the recovery of slaves, moveable or real property, the appeal bond is required to be for an amount exceeding by one half the estimated value of such slaves or moveable property : and in the case of real property, the Code speaks of an amount exceeding by one half of the. estimated value of the revenue, &c.

Before the Code of Practice on judgments.for the recovery of a sum of money, the appeal bond was required to be for a sum not exceeding double the value of the matter in dispute. Acts of 1813. Ch. 11. See 8. 1 Mar. Dig. 436.

Were we to confine our attention to the. Article 575 of the Code of Practice, we might be compelled to . adopt the construction contended for by the appellant’s counsel, we think that our duty requires our attention should be extended to . , n i ¿-i the following articles of the Code, and the preceding laws ; and in doing so we must conclude that the district Judge was correct in requiring security fora sum exceeding one half the amount of the judgment.

But the appellants counsel has further urged that he gave security for $1700, and this being evidently more than sufficient to cover costs, he entitled himself thereby, if not to a suspensive, at least to an appeal merely devolutive.

And by the article 574 of the Code of Practice, the judge must in all cases, whether it he a., suspensive appeal, or merely a devolutive appeal, fix the amount of the appeal bond, which is the legal sum.

Whether the appeal be intended to be devolutive and sms-pensive, or merely devolutive, the law requires a bond for a sum to be fixed by the Judge — Article 575. The Judge cannot grant the appeal without fixing the sura in which bond is to be given when he has done so, the sum by him fixed is the legal one, and a bond for a lesser one is not legal.

It is therefore ordered, adjudged and decreed that the appeal be dismissed.