Stempel v. Fulton, No. 13,075

No. 13,075 | La. | Feb 20, 1899

'The opinion of the court was delivered by

Miller, J.

The relator seeks the writ of certiorari to the Court of Appeals for the parish of Orleans, to review its action in refusing a mandamus to compel the. allowance of a suspensive apppeal by the District Court from the judgment against relator.

The judgment against relator by the District ■ Court was for one ■thousand dollars. By an inadvertance of the judge the bond for the suspensive appeal was fixed at fifty dollars, the amount being inserted by the counsel for the appellant, and the bond was furnished. Thereafter the plaintiff took a rule to set aside the suspensive appeal on the ground the surety was not good and sufficient, and because of the insufficiency of the bond in amount. The insufficiency of the bond would, with more propriety, have been addressed to the -appellate court, though the jurisdiction of the lower court has been ■affirmed to set aside an erroneous order such as to direct a suspensive appeal on a bond for costs to suspend a money judgment of one thousand dollars. State ex rel. Cieutat vs. Judge, 32 Ann. p. 816; State vs. Judge, 6 An. 548; 1st Hennen’s Digest, p. 330, No. 3. But it is clear that though the. bond fixed by the District Court was insufficient for a suspensive appeal, the bond was good for a devolufive appeal, and the District Court instead of setting aside the appeal should have maintained it as a devolutive appeal. This error, the relator sought to correct on his application to the Court of Appeal,, but his prominent ground of complaint was that because of a bond furnished for costs, the District Court could not set aside an improvident order for the suspensive appeal. In our view the District Court should have been directed to modify its order so as to maintain the relator's appeal as devolutive only, or in view of the fact that the record of appeal has been filed in the Court of Appeals, as relator brings to our notice in his application to the court that the order to be made by the Court of Apjieals is that the appeal of the relator stand as a devolutive appeal, reserving to the plaintiff in the lower court to proceed with his execution, and our learned brothers of the Court of Appeals, well advised of the law, doubtless assumed that on the bond for costs the relator would have the benefit of a devolutive appeal, and had no purpose to disturb it.

It is therefore ordered and decreed that the Court of Appeal for the parish of Orleans, on the application to it of the relator, do maintain his apppeal as devolutive, reserving the right of plaintiff in execution to proceed with it.