41 So. 648 | La. | 1906
In this case the plaintiffs’ petitory action having been dismissed, the judge of the lower court refused to fix the amount of the bond to be given by plaintiffs for a suspensive appeal, but left plaintiffs to furnish bond “according to law”; that is, to say in an amount exceeding by one-half the amount for which judgment was given. Code Prac. art. 575.
It is well settled that in such cases as this the amount of the appeal' bond must be fixed by the court. Day v. Wright & Bailey, 116 La. 961, 41 South. 223.
But the learned judge a quo answers that, taking advantage of Act No. 22, p. 25, of 1904, the plaintiffs have recorded a notice of the pendency of this suit, and that this has created an incumbrance upon the property of defendant, and that the appeal, by suspending-the effects of the judgment of dismissal, maintains this incumbrance in full force, and that, therefore, the amount of the appeal bond should be “according to law.”
Section 1 of said act reads as follows:
“Sec. 1. Be it enacted by the General Assembly of the state of Louisiana, that, on and after-January 1st, 1005, the pendency of an action in any court, state or federal, in the state of Louisiana, affecting the title or asserting a mortgage or lien upon immovable property, shall not be considered or construed as notice to third' persons not parties to such suit, unless a notice of pendency of such action shall have been made, filed or registered, in compliance with this act.”
Said Act No. 22 has brought no change in our law, except that, whereas, formerly, third persons dealing with property involved in litigation had to take notice of the pendency of the litigation without registry (article-2453, Rev. Civ. Code), now, under said act, they are not required to do so, unless the notice prescribed by the act has been duly recorded.
It follows that the plaintiff and appellant is entitled to have the amount of the bond for a suspensive appeal fixed by the court, as. if said registry had not been made.
It is therefore ordered, adjudged, and decreed that a writ of mandamus issue commanding Hon. J. B. Lee, judge ad hoc, in place of Hon. W. F. Blackman, recused, as. Judge of the Thirteenth judicial district court of Rapides, to fix the amount of the suspensive appeal bond in the case of E. M. Wells et al. v. W. F. Blackman, No. 6,316 of the docket of said court.