Reynolds v. Egan

BREAUX, C. J. This is a proceeding for an order to be addressed to the judge of the district court to compel him to vacate his order for a suspensive appeal, and directing him to issue a writ of fieri facias on behalf of the relatrix, the plaintiff above named, and against the defendant, Miss M. L. Egan. The ground of the application is that the defendant did not, within the 10 days after the judgment had been signed, file a bond for a susi)ensive appeal in the sum required; that for that reason and on that ground it is her (plaintiff’s and relatrix’s) legal right to have the judgment executed, and to that end to'cause a writ of fieri facias to be issued. We are informed by the admitted facts that on the 1st day'of July, 1908, defendant and appellant filed a bond of appeal for the sum of $5,200, a sum of 859.58 less than the sum required. The deficiency or the amount less than the sum required is made manifest by the following, copied from the proceedings: Judgment.$3,250 00 Interest for 1 year, 6 months, 28 days 23G 39 2) $3,506 39 $1,753 19 —which, added to $3,506.39, amounts to $5,-259.58. We are further informed by the proceedings that on the 10th day of July plaintiff, (relatrix here) took a rule to show cause why the suspensive appeal should not be dismissed and order of execution should not issue on the ground before stated. In due time, and after hearing, the court a qua acted upon this rule, dismissed the appeal, and ordered execution to issue. Immediately after this order had been issued, the district court allowed a suspensive appeal upon the said defendant (Miss M. L. Egan) giving bond in the sum of $5,750. Of this order of suspensive appeal rela-trix complains, and from it she seeks relief. We think that the order granting a sus-pensive appeal should be recalled and discharged, and execution of the judgment ordered. The appellant, who wishes to suspend the execution of the judgment pending the appeal, has to see that a bond sufficient in amount is timely filed. The law’s requirement in that respect does not admit of an exception to be made on behalf of any appellant. It is imperative in terms. [49] The “appellant gives his obligation” for a sum exceeding by one-half the amount for ■which the judgment was rendered. Code Prac. art. 575. Now, as to interest calculated to make up the amount for which bond should be given: Defendant’s contention is that interest should not be taken into account in making up the amount of the bond. In fixing the amount of the bond, interest •due should be computed to the date of rendition of the judgment. Paland v. Railroad Co., 42 La. Ann. 290, 7 South. 899; Pelletier Case, 112 La. 564, 36 South. 592; Paland v. Railroad Co., 42 La. Ann. 293, 7 South. 899; State ex rel. Gorda v. Judge of the Ninth District Court, 29 La. Ann. 776. That is firmly fixed in our jurisprudence. One of the contentions of the respondent is in effect that the relatrix, Mrs. Reynolds, is now concluded, and her remedy is to have the appeal dismissed, if she has such a right, by motion to dismiss before the court of the last instance, and that the question in that respect has passed out of the court of the first instance. We are constrained to differ from that contention. It is not the prevailing rule of practice. Moreover, if that view of our learned brother of the district court — that is, that the remedy is by motion to dismiss before the Supreme Court — were sustained, even the possible error or oversight of the court of the first instance might defeat the very articles of the law regulating appeals, which direct, in substance, that a judgment shall be -executed after the delay, if a bond for a sus-pensive appeal is deficient as relates to amount. The lawmaking authority evidently did not intend to render it possible to arrest the execution of a judgment in the manner now proposed by the defendant. We avoid all reference to any illegality of the judgment, or to any irregularity in matter of its amount, or in matter of interest allowed. If there be anything that goes to the merits of the case, it cannot be considered at this time; the issue being whether, after the expiration of the delay, the defendant who wished to appeal, who obtained a suspensive appeal from the original judgment, but failed to give bond, can take an appeal suspe'nsively from the order vacating the suspensive appeal. In State ex rel. Johnson v. Judge, 21 La. Ann. 113, the court held that the proper mode of bringing up the question is by writ of prohibition. In State ex rel. Storrs v. Judge, 21 La. Ann. 735, the court in the syllabus clearly expresses the rule laid down in the decision, and for that reason it is inserted here literally: “The Supreme Court will examine into the sufficiency of the surety on an appeal bond on application for a writ of prohibition, and if the surety is found to be good .the prohibition will issue restraining the judge from executing the judgment until the appeal is decided.” After having considered the two decisions from which we quoted above, we closed the books, convinced that the remedy is not by suspensive appeal. There are other decisions in point, notably State ex rel. Kane v. Judge, 23 La. Ann. 279, in which the court held that the remedy is by writ of prohibition, and the language used leaves the one impression beyond question that suspensive appeal from the interlocutory order is not the remedy. Equally as conclusive in our minds is State ex rel. v. Judge, 23 La. Ann. 491. Equally as pertinent is State ex rel. Dezutter v. Judge, 24 La. Ann. 316, also State ex rel. Lynne v. Judge, 24 La. Ann. 328. We pass from a review of the foregoing decisions, which sustain, as we think, our decree, to those confidently cited and commented upon by respondent. [51] The question of suspending the appeal for an indefinite time did not come up in any of the cases cited by defendant’s learned counsel. In the first (Vredenburgh v. Behan, 32 La. Ann. 475) the cause came up on appeal, and the court deemed it proper to pass upon the solvency of the bond. The question involved was the value of the property, and the amount or value of the property owned by the security on the bond? The court in that case held that an appeal will lie from a judgment" sustaining the sufficiency of the bond; but inferentially, at least, the court held that an appeal will not lie from a judgment ordering a fi. fa. to issue and directing that the judgment be executed. Here no great difficulty suggests itself. It involves the issue whether an alleged insufficient bond in amount can afford ground sufficient for a suspensive appeal in such a case as the one before us for decision. Our answer is not, if the court decides that it is insufficient. The party, however, is not without remedy; but it is not by the suspensive appeal, the right to which has been lost. We would pause a very long time before committing ourselves to the position that a suspensive appeal lies in the case such as the one before us. We do not think, taken as a whole, that the decisions cited by learned counsel for defendant go to the extent for which the defendant contends. Where it has been found that no bond has been given, the writ of prohibition is the remedy. Stanton v. Parker, 2 Rob. 550; State ex rel. Storrs v. Judge, 21 La. Ann. 735; State ex rel. Johnson v. Judge, 21 La. Ann. 114; State ex rel. Kane v. Judge, 23 La. Ann. 279; State ex rel. Dezutter v. Judge, 24 La. Ann. 316; State ex rel. Lynne v. Judge, 24 La. Ann. 328. There is a difference between suspending the execution of a judgment, on the one hand, and the refusal to suspend, on the other. ■If the court declines to order the execution of the judgment, prohibition may be issued. In Grasser v. Blank, 110 La. 498, 34 South. 648, the court stated that the remaining ground— “presented for dismissal is that the court a qua was without authority to grant an order for a suspensive appeal from a decree awarding execution, .for the reason that a previously taken suspensive appeal has not yet been timely perfected.” If that was the only question involved, it does not bear directly upon the issues here. True, the court appears to have gone further. State ex rel. Gill v. Tissot, 34 La. Ann. 90, was cited in 110 La. 498, 34 South. 648. It appears that the second appeal was entertained, and that in that respect there is a difference between our own views and that expressed in the cited decision. None the less we must decline to affirm these two decisions in any extent that they express an opposite view. Thorough consideration of the question has resulted in convincing us that there is error' in the contention that ■ a suspensive appeal can be taken from the order vacating the order of appeal and directing execution after the right to the suspensive appeal from the original judgment is lost. Any decision giving countenance -to another view is erroneous and will not be followed. It does not seem that definite action was taken in the Grubbs Pierson Case, 111 La. 101, 35 South. 474, cited in the case just above cited. The court said, in the last case: “Action on the motion to dismiss will be deferred until the case is examined on the merits.” The question before us for decision cannot in law and in justice be deferred. It must, in our view, be decided at this time. No-new light can be thrown upon it on the trial of the merits. The court will dispose of the rights of par [53] ties upon questions of law raised in limine (Succession of Fortier, 51 La. Ann. 1563, 26 South. 554), if it be very evident in law and reason that they should be decided at that time. Counsel for defendant in the brief urges that the judgment allowing interest from judicial demand is such an error as may be corrected at this time. We cannot agree with that view. This would be amending -the judgment, an amendment we do not think we should make on an application to have it executed. If ever the judgment comes up before us on appeal, it will receive attention. Contention is further raised on the part of defendant that required entries of the minutes have not been made. We can only say that the judgment was signed by the judge of the district court. Until the contrary is made to appear, the presumption is that the minutes were kept and properly approved by the judge. The objection of want of approval of the judgment by the judge because of his inattention, that his signature was inadvertently affixed by him, is not sustained. To return for a moment to the bond: The last bond given cannot be taken as security for the payment of the first judgment. If that were possible, any sort of a bond might be given, however worthless, and, if the objection to it were raised and sustained, a suspensive appeal might be taken months after the expiration of the time for taking a suspensive appeal. At the risk of restating a proposition, in order to have the list of the pertinent authorities, we state that the district court had jurisdiction to determine the sufficiency of the appeal bond. Audubon Hotel Co. v. Braunig, 119 La. 1070, 44 South. 891; Stuart v. Ansley, 119 La. 549, 44 South. 294; State ex rel. Fairex v. Judge, 33 La. Ann. 928; State ex rel. Railroad Co. v. Judge, 27 La. Ann. 697; Demarest v. Beirne, 36 La. Ann. 751. And we add that, having refused to grant the appeal, the court’s action cannot be reviewed on a suspensive appeal, in presence of the fact that plaintiff insists upon executing the judgment. To conclude: If the order of appeal is in form and the bond sufficient, the appellate court, not the court a qua, has jurisdiction. State ex rel. Gill v. Tissot, 34 La. Ann. 90. If an error has been committed by the court a qua in authorizing the execution to issue, the remedy “ought to be by a writ of prohibition.” Stanton v. Parker, 2 Rob. 550. Code Prac. art. 575, does not admit of the two suspensive appeals — one before, and the other after, the 10 days. For reasons stated, and the law and the evidence being in favor of the relatrix, it is ordered, adjudged, and decreed that the writ sued for be made peremptory. It is further adjudged and decreed that the order for a suspensive appeal is vacated, execution to issue, and the honordble judge of the district court is directed to order a writ of fieri facias to issue in favor of relatrix against the said Miss M. L. Egan on judgment signed on the 26th day of July, 1908, as prayed for by the relatrix. The defendant is to pay the costs of these proceedings.