Forman v. Fayard

CrOD.CHAUX, J. Shortly after the appeal bond was filed, appellee took a rule on appellants to show causé why the appeal should not be dismissed on the ground that the surety on the appeal bond did not possess the qualifications as to solvency that the law requires. This rule,. though filed before, was not heard in the lower court until after the transcript had been filed in this court; but upon the rule having been made absolute in the lower court, ordering the dismissal of the appeal, the appellee filed in this court a motion to dismiss, attaching to said motion the judgment of the lower Court, dismissing the appeal on the ground of the insufficiency of the surety. The motion to dismiss must prevail. The lower Court was the proper tribunal to pass upon the sufficiency of the. surety, and its judgment upon that subject is not here for review either by appeal or upon writ. Ample author [491] ity for the dismissal of this appeal is found in the following cases — to-wit: June 15, 1910. Baker vs. Schultz, 35 An. 524; Mt. Calvary Church vs. St. Paul, J., III La. 71; Weister vs. Blaise, 34 An. 833; Stewart vs. Cattle Co., 50 An. 845; Reynolds vs. Egan, 122 La. 47. It is, accordingly, ordered that the appeal herein be dismissed at the cost of the appellant. Appeal dismissed.