State ex rel. Storrs v. Judge of the Fourth District Court for the Parish of Orleans, No. 2453

No. 2453 | La. | Nov 15, 1869

Wtly, J.

This is an application for the writ of prohibition to restrain the execution of an order of seizure and sale granted by the Judge of the Fourth District Court, in the suit of Edward Thompson v. Rosette E. Storrs and husband, from which judgment a suspensive appeal has been tafeen.

The relator avers that her appeal has been wrongfully dismissed by the District Judge on the ground of the insufficiency of the surety, and that her property lias been seized to satisfy the judgment or order-appealed from j that the appeal bond is good and solvent as shown by the evidence; and the said Court is divested of jurisdiction of said cause by virtue of the appeal.

The District Judge says : “ That the question in No, 2453 for a prohibition is: Can one appeal from a decision setting aside an order of appeal, when the setting aside of the appeal is based on the insolvency of the surety on the appeal bond?” IVe do not so -understand the question presented -in this case.

The simple-question is: Is the surety on the appeal bond good and solvent 1

That this Court has the right to revise the judgment of the Court a qua on the question of the solvency of the surety on an appeal bond, and issue the writ of prohibition in aid of its appellate jurisdiction, is no longer an open question. 21 An. 43, 64, 113,153, and the authorities there cited.

The amount of the appeal bond is two thousand dollars, and the surety, Albert Ilolzinger, swears that he is worth that amount clear of all debts; that he resides here; that his property here consists in stock in trade, money in bank and pocket, and about six thousand dollars outstanding, mostly for money loaned; that he has two stores, one at 20 Camp'street and the other at 7 St. Charles street; that the stock in both is about six thousand dollars; that he owes in all about two thousand two hundred dollars. Also, that he owns a judgment in the United States District Court agaiust solvent parties for which he has been offered ten thousand dollars cash, and refused it. Also, that he is worth in this parish, over and above all liabilities, over twenty thousand dollars.

There is no evidence to the contrary, and we are bound to conclude that the surety is good and sufficient.

It is, therefore, ordered, that the prohibition issued herein be made perpetual, and the Judge of the Fourth District Court, parish of Orleans, be ordered not to proceed further in the suit of Edward Thompson v. Rosette E. Storrs and husband, and to allow tiie transcript, of the record thereof to be sent to the Supremo Court as it the order dismissing the suspensive appeal had not been rendered.