8 La. Ann. 89 | La. | 1853
This is the second application for the interposition of this Court, which has been made in this cause, and its decision turns upon the question of the plaintiffs’ right to a suspensive appeal, under the circumstances of the case.
It appears that upon an execution taken out by the plaintiffs against the defendant, certain goods were seized. Levy intervened and claimed the ownership ; he also asked damages. There was judgment in Levy's favor, ordering the restoration of the goods to him and awarding him damages. This judgment was signed on the 10th February, 1853. On the 21st February, 1853, the plaintiffs filed a petition, asking- an appeal from the judgment, in general terms, and not specifying whether they desired a suspensive, or devolutive appeal. On the 25th, the Court signed an order granting- an appeal, with a similar generality of language, and upon condition that the appellant should give bond, with good security, in the sum of $650. A rule was subsequently taken in the Court below by Levy, upon the plaintiffs, to show cause why execution should not issue, upon the ground that the bond was insufficient for a suspensive appeal, &c. The rule was made absolute, and in doing so the District Judge remarked:
“In this case the intervenor and third opponent, A. Levy, has ruled the plaintiff to show cause why an execution should not issue upon the judgment rendered in his favor, upon the ground, that the' amount of the appeal bond was insufficient. The judgment for the intervenor was for $400 damages, and the delivery of certain movable property, being merchandize. The lowest estimative value that, under the testimony of the case, can be put on the merchandize was $295. In taking a suspensive appeal, the party was bound to secure the sum of $695, by giving- bond in an amount exceeding that sum by one half, under articles 515, 516, O. P. According to this calculation, the bond should have been for $1000 and upwards. But the bond actually filed is only for $650. This falls far short of the rule prescribed by law, and, therefore, must be deemed insufficientdto the execution of the judgment.
“It is ordered, therefore, that the rule be made absolute, and the third opponent and intervenor be authorized to issue execution upon the judgment rendered in his favor against the plaintiff in this case, and a writ of possession according to law.”
An application was then made to this Court for a prohibition. The answer of the District Judge was.:
“Tour respondent ordered an execution to issue on the judgment rendered In favor of Levy, against Bach, Barnett & Co., for the reason, that the bond filed by the appellants, Bach, Barnett & Co., was insufficient in amount to sustain a suspensive appeal. He avers that the record of the case will show that judgment was rendered in favor of Levy for $400 damages, and for the owner
“ Your respondent refers to the copies of the record for the facts of the case to sustain the foregoing statement, and, submitting those his reasons, most respectfully prays to be hence dismissed.”
“J. OALVETT CLARK, Judge.”
For these reasons, and considering also the ruling in 4th An’l, p. 3, Byrn v. Riddell et al, and Marshall v. Grand Gulf Railroad Company, 5th An’l, p. 361, we dismissed the application. See ante, p.—
The present application is made on the ground that the plaintiff, on the 14th March, tendered a new bond, in the Court below, for $2500, and that they have a right to a suspensive appeal within 15 days after the adjournment of the Court, on the last day of the February term. They roly on the statute of 1843, p. 40, which provided as follows :
“ Section 2. That the articles, 5V5 and 624, of the Code of Practice, be so amended that whenever an answer has been filed in a suit in which the defendant has had personal service made upon him, to appear and file his answer, or when a judgment has been rendered in a case, after answer filed by the defendant, or by his counsel, the party cast in the suit shall be considered duly notified of the judgment, by the fact of its being signed by the Judge. Provided, that in the country parishes no execution shall issue in cases where an appeal lies until fifteen days after the adjournment of the Court, by which the judgment was rendered, within which delay a party may take a suspensive appeal, on filing petition and appeal bond, as now provided by law.”
The District Judge has refused to grant a suspensive appeal.
The subject is one involving the practice of the District Court of the parish of Jefferson, which is regulated, in many respects, by statutes specially framed with reference to that Court. Upon these statutes the learned Judge of the District Court has been acting for several years. We must suppose he has, necessarily, given them repeated and careful consideration; and his interpretation, under such circumstances, is entitled to great deference, and ought not to be disturbed by us, unless it should seem, upon a careful scrutiny, manifestly erroneous.
Those statutes are numerous. The multiplicity of legislation was, perhaps, the necessary consequence of the inherent difficulties which attended the organization of the now judiciary system under a newiconstitution; although it is certainly to be regretted (if such a course had been possible ) that all the legislation, touching that Court, had not been embraced in a single act. There are, in those statutes, if superficially examined, seeming inconsistencies of phraseology, and, perhaps, some occasional obscurity with regard to the intention of the lawgiver. But upon the w'hole, after carefully comparing the various acts, we have come to the conclusion adopted by the district Judge, to wit: that the intention of the legislature was to distinguish, in many respects, the practice of the District Court of Jefferson from what may bo termed the country Courts ; and to assimilate it to the practice of the city of New Orleans, of which the town of Lafayette then substantially formed a part, and with which city Lafayette has been subsequently incorporated.
See Acts of 1840, p. 45, 56, 63, 99, 110.
It is, therefore, ordered that the application be dismissed, and that the applicants pay costs.
