No. 11,189 | La. | Mar 15, 1893
On Motion to Dismiss Appeal.
The opinion of the court was delivered by
Plaintiffs and appellees move to dismiss this appeal, on the ground that the appeal bond is wanting in an essential requi
The opponents obtained appeals, suspensive and devolutive, and executed an appeal bond for $1000, the condition of which is that “if the said Harris, Day & Oo., and others, opponents in said writ, shall pay and satisfy such judgment as may be rendered against them on appeal in this case, then this obligation to be null and void,” etc.; whereas the requirements of the Code of Practice are that “ in the appeal bond it must be set forth in substance that it is given as surety that the appellant shall prosecute his appeal, and that he shall satisfy whatever judgment may be rendered against him * * * if he be cast in his appeal otherwise,” etc. O. P. 579.
The defect appellees assign as necessarily fatal is that the bond omits the requirement that “the appellant shall prosecute his appeal.”
Appellee’s counsel insist that the requirement is not only plain, but mandatory, and failure on the part of appellants to comply therewith must necessarily result in the dismissal of their appeal.
The argument made in favor of this theory is, that if such a bond will suffice, the winning creditor in the lower court has no protection. For the party cast may apply for a suspensive appeal, and file such an appeal bond as the one furnished in this case, and thereby incur no risk or responsibility in abandoning his appeal, and refusing to prosecute same on the return day. If the sureties were ruled to show cause why judgment should not be entered up against them on the bond they could surely answer that, as the appeal was not prosecuted by the parties cast, and their only obligation being “ to pay and satisfy sueh judgment as may be rendered against them on appeal in this ease," they were under no duty or obligation toward the appellees, because no judgment had been or could have been rendered against the appellants by the appellate court; and they had not obliged themselves to pay anything else, or to pay otherwise.
There can be no question of sueh an answer being good, for the extent of the sureties’ obligations is that they are to “ pay and satisfy such judgment as may be rendered against them on appear1 in this case;” and none has been rendered.
Had the bond contained the missing provision, the liability of the sureties would have attached by reason of appellants’ failure to prosecute their appeal.
Under quite a similar state of facts this court considered and maintained a motion to dismiss, in the Succession of Calhoun, 35 An. 363.
In Champonier vs. Washington, 2 An, 1013, the converse of this proposition is announced — the sureties on an appeal bond being held liable, because it contained the stipulation that the appellants should prosecute the appeal, and the proof showed that they abandoned t.
To the same effect is Moore, Janney & Hyams vs. Lalaurie, 27 An. 645.
It must be observed that the bond not only does not contain the requirement that the appellant shall prosecute his appeal, in terms, but there is no such stipulation in substance. No words of similar import, of any kind or character, are employed. This is not a mere inaccuracy or inartificiality in the confection of the bond; for the code contains two separate and distinct requirements: (1) That the appellant shall prosecute his appeal, (2) and that he shall satisfy whatever judgment, etc.
They are united together by the copulative conjunction “and,” and the former is entirely omitted from the bond.
In our opinion, this question is fairly met and decided in the Calhoun case, in the subjoined extract therefrom, viz.:
“However much it may be claimed that judicial bonds are to be construed with reference to the law under which they are given, and that any clause which is superadded must be rejected, and any that is omitted supplied, it surely can not be insisted that when the surety on a judicial bond has bound himself in. a particular contingency only, he can be held liable in other contingencies.” 35 An. 363.
After making a careful examination of all the cases cited in appellants’ brief, we have found no case which maintains an appeal bond lacking the legal requisite the one under consideration does.
In Caldwell vs. Ballow, 7 Southwestern Rep. 677, we find quite an appropriate and instructive opinion of the Texas court — a court from which we are at all times pleased to quote — in which the self
“This is a motion,” says that court, “to dismiss a writ of error on the ground that the bond is not conditioned as required by statute. The condition of the bond is that the obligors ‘ shall comply with the judgment, order or decree of the Supreme Court upon such writ,’ etc. * * * The bond was evidently intended as a supersedeas bond, which the statute requires to be ‘ conditioned that such appellant * * shall prosecute his appeal,’ etc. * * One of the conditions of the bond required by the statute is entirely omitted. The statute is plain, a compliance with its terms easy, and we are not to presume that it was the intention of the Legislature that any of its terms or conditions should be dispensed with. If such a bond does not literally comply with the statute, it must fully and clearly embrace all the conditions presented by it. This the bond before us does not, and the writ of error must be dismissed.”
We are in perfect accord with that opinion and the views therein expressed are particularly applicable to this ease.
The appeal bond in this case is radically defective and the motion must prevail.
Appeal dismissed.