Moffet v. Koch

The opinion of the court, on motion to dismiss, was delivered by Watkins, J. The opinion of the court, on the merits, was delivered by Monroe, 7. On the application for a rehearing by Monroe, J. On Motion to Dismiss Appeal. The opinion of the court was delivered by Watkins, J. Plaintiff and appellee bring to the attention of the court the fact, that he filed in the District Court a motion to dismiss the defendant’s appeal, on the ground that the surety on the appeal bond “was not a legal surety, because it did not possess property situated within the State,” and that said motion was, on trial, dismissed; [373] and that upon a supplemental transcript which contains the evidence, he now renews his motion to dismiss. The argument, on the part of the defendant’s counsel, presents the question at issue very succinctly; and we have made the following extract therefrom, viz: “This rule was tried on admissions, the plaintiff in rule admitting that the surety company which signed the bond had fully complied with Act No. 41 of 1894, and the defendant in rule admitting that the surety company had no property within the jurisdiction of the court.” The act of 1894 does not require surety companies to have property within the jurisdiction of the court in which the bond is furnished, nor, for that matter, within the State. The first section of the act defines the kind of corporations which may become surety; states the capital and assets which it must have; and provides that “such execution, by such company of such bond, undertaking or obligation, shall in all respects be a full and complete compliance with all the requirements of such laws, ordinances, or regulations that such bond, undertaking or obligation, shall be exercised by one or more sureties, or that such sureties shall be residents, or freeholders, or either or both, or possess any other qualification,” contains other language showing that the act does no_t require that the corporation shall have property within the jurisdiction of the court, or within the State, and provides that' certain duties shall be performed by the Secretary of State, in order to insure the solvency of the companies acting as sureties. The act of 1894 has been in force for six years, and appears to have been accepted and approved of by the profession, since it has been attacked in but two cases, both of which have been decided in our favor, namely the Standard Cotton Seed Oil Company vs. Matheson, 48th Ann. 1321, and Holmes vs. Railroad Company, 49 Ann. 1466. In the Matheson ease, the court used the language quoted in the appellee’s brief, but nevertheless maintained the validity of the surety, notwithstanding the fact that the objection that surety companies were not required to have property within the State, was pressed home; for on page 1324 it appears that counsel in that case argued “nor can private citizens be admitted to suretyship on legal bonds, unless they have property within the State.” The motion to dismiss in Holmes vs. Railroad Company, 49 Ann., seems to have been suggested by the language quoted from the Matheson ease, for the point was made in this ease “that the surety is not [374] a resident of the Parish of Orleans, where it has no “property,” but, nevertheless, the motion to dismiss was denied. It seems to us that, boiled down, the point made by the appellee is that the act of 1894 is in conflict with an article of the Code of Practice, which requires that the surety shall reside within the jurisdiction of the court, and an article of the Civil Code, which provides that the surety shall have property liable to. seizure within the State. If there be a conflict, the act of 1894 governs, being the later act, and repealing pro tanto the articles of the Code and the Code of Practice, as decided in the Matheson case, 48 Ann. p. 1323. We know of no provision in the Constitution which prevents the Legislature from making any regulations it sees fit with reference to sureties, or which requires the Legislature to exact any surety at all in the ease of an appeal, and, as a matter of fact, Article 3042 of the Civil Code, until amended by Act No. 76 of 1876, did not require that the surety should have property within the State. The Statute of 1894 was enacted for the special purpose of authorizing certain corporations to become sureties on bonds, and it prescribes the conditions under which they may do so. One of its requirements is that such corporation shall have a cash capital of not less than $250,000, and has qualified under the provisions of this act “and which has assets allowable as such under the laws of this State, or under the laws of the State in which it is incorporated in excess of its capital stock, outstanding debts and a premium reserve on all outstanding risks,” etc. Sec. 1, Act 41 of 1894. The company having complied with these conditions “it shall become subject to all the liabilities, and have all the rights of sureties under the provisions of the law relating thereto; it being the true intent and meaning of this act to enable corporations created for the above purposes to become and be accepted as sole surety on all bonds,” etc.Ibid. (Italics ours.) The motion does not disavow the fact that the guaranty company had in this case qualified itself according.to.that statute, and hence that' fact may be assumed. That statute must be accepted and considered as an amendment to that provision of the Code of Practice relied upon by the appellee. We are of opinion that the district judge disposed of the motion correctly. Motion to dismiss denied.