State ex rel. Adams v. Judge of the Second Judicial District of Louisiana

21 La. Ann. 64 | La. | 1869

Ludeling,"C. J.

Tho answer of the Judge of the Second Judicial District of Louisiana, shows that on the fifth day of December, 1868, a judgment was rendered dissolving an injunction in the suit entitled, Elizabeth Adams, Natural Tutrix, v. Martin Dermody, F. J. Herron, United States Marshal, and A. H. De Meza, with three hundred dollars damages and costs against the plaintiff and lier surety on the injunction bond, in solido. The judgment was signed on the fourteenth of December last. Within the legal delay, a petition for a suspensive appeal from the judgment was ¿led and presented to the judge, who granted the order “upon the appellant giving bond, with good and solvent security conditioned as the law directs, in the sum of forth-five hundred dollars.”

The reasons given by the judge to justify his conduct are not sufficient.

Article 575 of the Code of Practice gives the appellant the right to a suspensive appeal, provided “he give his obligation, with a good and solvent security, residing within the jurisdiction of the court, in favor of the appellee, for a sum exceeding hy one-half tiie amount fob which the judgment was giyen, if the same be for a specific sum.”

The judge has no discretion in sileh matter.

Article 574 of the Code of Practice, which provides that the judge shall state at-' the foot of the petition the amount of the bond, does not relate to suspensive appeals from judgments for a specific sum. Victor Duperron v. Van Wickle, Sheriff, et. al., 1 R. 324; Rachel v. Rachel, 11 An. 636; Surget v. Stanton, 10 An. 318.

Nor is the discretion given to the judge by article 574 absolute and uncontrollable. He must exercise a' sound legal discretion to attain the ends intended by the law, to wit, the security of the costs only.

The judgment appealed from was for three hundred dollars and costs. The bond for one thousand dollars, which was tendered, was sufficient, as it exceeds in amount by one-half the sum “for which the judgment was given.”

Another reason assigned by the judge was that the Second District Court of the State of Louisiana had not authority to issue an injunction to restrain the Marshal of tlio United States from executing a writ, issuedfrom the Circuit Court of the United States, and that the injunction was absolutely null and void, and therefore, no appeal can be taken from the judgment dissolving the injunction and awarding-damages against the plaintiff. This is a non sequiiur..

Whether the Second District Court had jurisdiction or not, the party cast in the injunction suit had a light to have the judgment reviewed by this court, on appeal.

It is therefore ordered that the mandamus issued in this case be made peremptory.

Reporter. — This case merely involves a question of fact, as to amount of the interest, and presents the same points as the preceding, reported above — No. 1958.