46 La. Ann. 490 | La. | 1894
The opinion of the court was delivered by
This proceeding arises in the case entitled Lafayette Bank vs. Algiers Brewing Company, No. 39,952, in the Civil District Court, Division B, which court is presided over by the respondent judge, wherein several persons claiming to be bondholders of the defendant company intervened and procured rules on all parties to the suit, to show cause why the plant and all of the paraphernalia and property of said corporation should not be sold.
On the trial of said rules an order was made by the respondent to the effect that John H. O’Connor, receiver of the Algiers Brewing Company, should, after due advertisement, make sale at public auction of the entire property and effects of said corporation, for cash, for not less than two-thirds of its appraisement.
Erom this order of sale, the relator, acting through its president, moved the aforesaid court for a suspensive appeal, upon furnishing bond in the amount required by law, and the respondent fixed the amount of such bond at one thousand dollars, but at the same time requiring of the Brewing Company, as appellant, that it should furnish “ and file, before his appeal bond for costs, * * * his bond, with a good and solvent surety for thirty thousand dollars, conditioned for the payment of all such damages as shall be sustained by the receiver and creditors by the appeal from the order of sale in this ease, if it should-be decided that such appeal was wrongfully obtained and illegally kept in force by the appellant.”
In relator’s petition are stated the grounds of complaint against the sale-order thus, viz.:
He further shows that all the property and assets of the corporation are in the possession and under the control of the said receiver, an officer of the court, and if same suffer damage or deterioration, it will in nowise be his (relator’s) fault; and he represents that when property is in the hands of an officer of the court, and there remains pending the appeal, a bond for costs, is all that can be legally demanded of an appellant.
In the alternative, he denies that the proof discloses the likelihood of any loss being sustained during the pendency of an appeal. And finally the relator avers that the action and order of the judge in requiring a special bond of thirty thousand dollars, if maintained, will practically operate a denial of its constitutional right of appeal, they superadding to an appeal bond a.requirement that is illegal and contrary to law.
Hence his prayer is for certiorari to issue requiring the respondent to transmit to this court a certified copy of the record in said suit; for prohibition to restrain further proceedings in the matter of said sale; and mandamus to coerce a suspensive appeal on relator’s one thousand dollar bond, which has been already tendered.
The respondent has sent up the original records of his court, in lieu of certified copies thereof, because of the delay which the making of certified copies would engender.
He returns, substantially, that, in view of the fact that he was unable, at the moment, to fully and definitely determine what the amount of the' suspensive appeal bond should be — baking into consideration the injury which might possibly be wrought to all parties in interest by a suspension, for any length of time, of the order of sale, and, at the same time, be preservative of the relator’s right of appeal — he made an order for the taking of testimony on that question, regarding such to be a conservative and proper course to be pursued, under the circumstances.
He further returns that, in his opinion, the testimony taken in pursuance of said order established the fact that great loss and injury would be entailed upon the corporation and its property by
He further returns “ that, considering all these facts and circumstances, he considered it in the plain line of his duty, and in the exercise of a just and reasonable discretion, warranted by the settled jurisprudence of this State, to demand a bond equal to the amount of damage likely to result from a suspension of the order from which an appeal was sought,” and hence he made the aforesaid order.
He insists that this was a proper case for the exercise of his discretion, and that such discretion was justly and reasonably exercised, and his action was warranted by the decisions of this court, and notably that in the case of State vs. Judge, 19 La. 167; State ex rel. Coons vs. Judge, 27 An. 334; and in Hart vs. Judge, 34 An. 1210.
The controversy is thus narrowed to one question, and that is whether the relator is entitled to appeal suspensively from the order of sale upon its furnishing bond in the sum of one thousand dollars as fixed by the respondent’s order; or was the right of appeal properly conditioned upon relator previously furnishing an additional bond for damages.
Relator furnished and caused to be filed the suspensive appeal bond of one thousand dollars, bub declined to furnish the additional bond of thirty thousand dollars to cover such damages as may result during the pendency of the appeal.
The contention is, substantially, that under an ex parte order of the respondent at the request of plaintiff in the aforesaid suit a receiver was appointed, who qualified, gave bond and entered into possession of all the property and assets of the corporation; and is now, and has been at all times since said order was made in the actual possession, management and control thereof for the account of the creditors of the corporation. That certain of the creditors of the corporation having intervened in said suit, but having obtained no judgment therein, applied to the respondent pendente ,lite for an order for the sale of all its assets and property, as a conservatory measure, in the interest of all parties concerned.
That believing a sale would be injurious and result in irreparable injury and loss to the corporation, relator applied to the respondent for an order of suspensive appeal, which he granted under the suspensive condition above stated.
That the judgment, or interlocutory decree which is appealed from, is not a moneyed judgment nor one for the delivery of property, movable or immovable, and, consequently, the only bond that can be required is one that will cover the costs of the appeal, and that any other, or different bond which may be required, as an incident of the appeal, is without any warrant in law, and has the effect of a denial of its exercise of the right of appeal, notwithstanding its right to a suspensive appeal is conceded.
It is, therefore, a fact well recognized that the only appeal bond which the corporation was required to furnish was only one that would cover costs — the corporation having been divested of possession by the appointment of a receiver, and by his investiture of possession it became a stranger to the litigation quoad the order of sale, and relegated to the rights of a third person.
This statement would seem to close the controversy but for the reasons assigned by the respondent, which are persuasive, though unsound.
The only thing the respondent was called upon to determine was the amount of bond necessary for a suspensive appeal from the order of sale; and, in order to do that, he was only charged, under the law, to ascertain what amount would cover costs of appeal.
This the respondent did. He ascertained and fixed the amount of the bond for suspensive appeal, and the relator gave it.
Our predecessors stated the rule comprehensively and accurately in State ex rel. Durand vs. Judge, 30 An. 282.
“ The right of appeal is a precious one,” says the court, “ and it should be favored and aided by the courts. There should be no difficulty in fixing the amount of the bond for an appeal in any case. When the judgment is for a specific sum, the party east must give
“ If the judgment decree the delivery of movable property of a perishable nature, the security for a suspensive appeal must be for an amount exceeding by one-half the estimated value of such movable. Id. 576.
“ If the judgment decree the delivery of real estate not of a perishable nature, security shall only be required to an amount exceeding by one-half the estimative value of-the revenue to be derived from such realty pending suit, and for such further amount as the judge may determine, as surety for any injury or deterioration which may be caused to the estate by the appellant while in possession of the same. 'Id. 577.
“ In all eases not falling within the terms and provisions of these articles, no other security is necessary than such as will suffice to cover the costs."
The suit of State ex rel. Block vs. Judge, 44 An. 564, presents a case of an intervenor demanding the right to suspensively appeal from a large money judgment which was awarded the plaintiff, against the defendant, sustaining an attachment, on furnishing a bond sufficient to cover costs. The district judge required a bond for one-half above the amount of the judgment, and this court made peremptory a mandamus of the intervenor, saying:
“ The law fixes no standard for the amount of bond to be given by a party who wishes to take a suspensive appeal from a judgment refusing him a participation with others in a fund in the hands of the court. A bond for cost is sufficient,” citing authorites. “The bond could only be for the satisfaction by the surety of the judgment to be rendered on appeal, should the principal fail to pay it. In no court could the relators be condemned, on appeal, to pay more than the costs. Requiring a bond for more would be oppressive and an idle formality." (Our italics.) Succession of Edwards, 34 An. 216.
In Blanchin vs. Fashion, 10 An. 345, the principle is stated clearly.
“The expressions of the article (O. P. 575),” say the court, “imply Ghat the judgment to necessitate a bond in one-half exceeding its amount must be one which the appellant has been condemned to pay. This amount of bond does not, therefore, seem applicable to the case of a judgment when the party appellant is condemned to pay nothing. Accordingly a bond for costs only was held to be suffi
In the case of State ex rel. Eustis vs. Judge, 27 An. 685, the court said very tersely: “ As appellant is not in possession of the funds in controversy, he need only give bond for the amount of costs. 10 An. 345; 20 An. 108. As he did this within ten days, the appeal operated a supersedeas. C. P. 575.”
In State ex rel. Hickey vs. Judge, 20 An. 108, it was substantially held that where there is no standard specially fixed by law, as to the amount of the appeal bond required to operate a supersedeas, pending an appeal, the judge should allow a suspensive appeal on appellant giving bond in an amount sufficient to cover costs. State ex rel. Sharp vs. Judge, 22 An. 176; State ex rel. Garrison vs. Judge, 21 An. 43.
In Heath vs. Yaught, 16 La. 515, the court put the proposition thus:
“ The fund out of which all of the claims were to be paid was in court-, it is therefore only necessary to inquire what judgment the court can render to determine the sufficiency of the bond. If the appeal shall be successful, then Heath & Co. are not liable for anything; if they are unsuccessful, they are only liable for costs. The bond is very ample to cover them.”
In State ex rel. Picot vs. Judge, 27 An. 231, it was held that, inasmuch as the property belonged to a succession, and was in the custody of the court, a suspensive appeal could be taken on the appellant furnishing a bond for costs. State ex rel. Beebe vs. Judge, 23 An. 31.
To the foregoing authorities, others of like purport might be added ad infinitem, but others are not deemed necessary. The tenor and purport of them all is that when the matter, fund or property in dispute is not in possession of the appellant, and he is not the party condemned by the judgment that is appealed from, but the res is in the hands or custody of the court, appellant is entitled to suspend proceedings under such decree, on furnishing a bond that will cover costs.
The cases cited and relied upon by the respondent are not pertinent to the question before the court.
State ex rel. Coons vs. Judge, 27 An. 334, involved the case of a relator claiming the right to a suspensive appeal on a bond for costs
In Hart vs. Judge, 34 An. 1210, the relator was likewise a plaintiff in an injunction suit which had been dissolved, and he sought to obtain a suspensive appeal on a bond for costs, but this court required relator to file an additional injunction bond — not appeal bond —to cover such damages as “ shall have been sustained by the injunction heretofore obtained-,” not for the purpose of covering possible damages which might result from the appeal.
State vs. Judge, 19 La. 167, presents a somewhat similar question of injunction, and like decision.
In State ex rel. Cain vs. Judge, 40 An. 841, relator was plaintiff in an injunction suit restraining the defendant from exercising the functions of an office he claimed, and, from-an adverse judgment, he asserted the right to appeal, suspensively, on furnishing a bond for costs; and to this effect the mandamus was made peremptory.
In State ex rel. Vial vs. Judge, 36 An. 910, another case is stated of an injunction dissolved, the only controverted question being the quantum of costs, a question not involved in this case.
After having gone over this case very thoroughly and made a careful examination and analysis of authority on the question involved, we have arrived at a conclusion different from the one entertained by our learned brother of the District Court.
Waiving any expression of opinion as to the right of appeal in this class of cases — a question not presented for decision — our conclusion is that the relator can not be required to furnish bond to cover damages that may accrue during the pendency of ah appeal; and, thus concluding, it is ordered, adjudged and decreed that the writs prayed for be made peremptory.