35 La. Ann. 363 | La. | 1883
On Motion to Dismiss.
The opinion of the Court was delivered by
Tbe appellee assigns numerous reasons in justification of bis motion to dismiss, wliich are all levelled at the bond furnished by the appellant.
It suffices to consider one of them.
The appeal is taken from a . judgment appointing an administrator, and is necessarily devolutive. C. P. 580.
The bond required was then to he furnished under the provisions of Article 579, C. P., which relates to all appeals.
It contains as the condition on which it is signed by the surety, that if the principal “ shall well and truly pay, or canse to be paid, all such damages the said * * * administrator may sustain in case it should be decided that the said appeal was wrongfully obtained, then and in such case, the above obligation to be null and void, otherwise to be and remain in fall force and virtue in law.”
However much it may be claimed that judicial bonds are to be construed with reference to the law under which they are given, and that any clause which is superadded must be rejected, and any that is omitted, supplied, it surely cannot be insisted that where the surety on a judicial bond has bound himself in a particular contingency only, he can be held liable in other contingencies. 4 An. 3.
Tested by this general rule, however, the bond in this case is in no
The condition of this bond is that which the Code of Practice requires from litigants invoking conservatory writs for the protection of parties against whom they issued, to pay such damages as may be sustained in case it be decided that the writ was wrongfully obtained. C. P. 214, 276, 304.
The surety in this case has only bound himself to pay such damages as the appointed administrator may sustain in case it should be decided that the appeal was wrongfully obtained.
It is difficult to conceive how the contingency provided for can ever arise at all. The su'rety has not bound himself to pay the costs of the litigation. In the absence of such obligation no recovery could be had against him for the same.
The bond should have been given as prescribed by Article 579, C. P. As it was not framed accordingly, but formulated under different Articles, it is no valid bond in law.
It is, therefore, ordered that the appeal be dismissed with costs in both Courts.
