Farmers' Loan & Mortgage Co. v. Langley

On Motion to Dismiss. THOMPSON, J. The appellee contends that this appeal should be dismissed because no appeal bond has been filed as required by law and the order granting the appeal, and, in the alternative, should it be held that an appeal .bond was filed, then such filing was too late to operate as a suspensive appeal bond. It appears that judgment was rendered in the court below on December 9, 1925, and a motion for a new trial was filed and overruled on the 10th. On the 14th an order for a suspensive and devolutive appeal was granted defendant. On December 21st the appellant presented to the clerk of court an appeal bond in the amount required for a suspensive appeal. The delay expired on December 20th, but, as that day was Sunday, the appellant had all of the following day in which to file his bond. So the presentation of the bond was in ample time. We do not understand that this is disputed. The bond was informal when presented to the clerk of court; the informality consisting in the failure of the sureties to make the affidavit required by law. The affidavits, however, were made and subscribed on the day following the filing of the bond with the clerk. In this connection it may be stated that the clerk did not actually mark the appeal bond “Filed,” but on the 23d of December made and signed a certificate in which it is stated that the bond was presented to him on the 21st with the affidavits in blank, that on the 22d he returned the bond to defendant’s attorney with the request that he have the affidavits executed, and that said bond was returned to him (the clerk) on the 23d when he indorsed on the said bond “Presented 12/21/25,” and affixed his signature thereto. The counsel for appellee made no objection to the bond in the court below, and has not urged here the lack of timely affidavits to the bond. The sole and primary complaint is *255 that the bond was not actually filed by the clerk. Our opinion is that the bond should be held as having been filed on the day it was delivered to the clerk. It is true section 4 Of Act 112 of 1916 provides that no officer shall accept any bond unless each surety thereon shall have made ■oath that he is worth over and above all his debts, the amount for which said surety has bound himself, but this provision of the law is in favor of the appellee, and the nonobservance of the formality does not strike the bond with absolute nullity. Under the provisions of Act 112 of 1916, any error or omission in a judicial bond, or deficiency in form or substance, or in the .amount thereof, or the solvency of the surety ihereon, may be corrected within two days after notice given to the party furnishing such bond; and this is broad enough to allow a correction in any one case where there has been a bona fide attempt to furnish a bond and surety according to law. The above statement is taken from Onorato v. Sanchez, 14 Orleans App. 319. If the clerk had filed the bond on the day it was presented to him, the bond would have become a legal bond without the required affidavits, since the appellee made no complaint in the lower court, and for that reason would have been precluded from arguing the same for the first time in this court as a cause for dismissal of the appeal. It was the duty of the clerk to have either filed the bond or returned it to the appellant for correction on the day it was presented to be filed. The clerk could not delay such action to the following or any other day and thus defeat the right of the appellant to a suspensive appeal. Nor can the right of the appellant be prejudiced by the failure of the clerk to actually file the bond when presented to him. It was not in the power of the appellant to force the clerk to indorse the bond filed. If the appellee had pursued in the court below the course pointed out in the statute, and had urged the objections to the bond, the appellant would have had the right within the delay named in the statute to have supplied the affidavits to the bond or to have given a new and supplemental bond, and this corrected, new, or supplemental bond would have had the effect of maintaining the original order of appeal in full force and effect as of date that the original bond was furnished, and with all the rights and privileges resulting from such original order or process, and with all liabilities and obligations arising from such original bond. Section 6, Act 112 of 1916. What appellee could have forced the appellant to do by rule, the appellant has done voluntarily, and thereby we think has preserved his suspensive appeal in full force and effect. The motion to dismiss is therefore overruled.