Watts v. Collier

On Motion to Dismiss. PROVO STY, J. [5] By articles 574 and 575, C. P., the bond to be given for a devolutive appeal must be in an amount fixed by [101] the judge, and the bond to be given for a suspensive appeal must be in an amount “exceeding by one-half the amount for which the judgment was given.” The appellant in this case obtained orders for both a suspensive and a devolutive appeal. The judgment being for $35, he made the amount of his suspensive appeal bond $52.50, that is to say, $35, the amount of the judgment, plus one-half of that sum and he made the amount of his devolutive appeal bond $75, as fixed by the judge. 1-Ie cumulated the two bonds in one for $130 for the two appeals. This cumulation is allowable, since a bond, though purporting to have been given for the one appeal, may be good for the other. [6] Appellee has not objected to this cumulation, but has moved to dismiss the suspensive appeal, on the ground that the costs form part of the judgment, and that therefore the costs should have been added to the judgment in computing the amount of the suspensive appeal bond, and that the amount of the costs in this case is $75, since the judge fixed the amount of the devolutive appeal bond (which bond is given for the costs) in that sum. The question of whether the costs must be added, in computing the amount of the suspensive appeal bond, came before this court in Brown v. Brown, 9 La. Ann. 310, and again in Paland v. Railroad Co., 42 La. Ann. 290, 7 South. 899, and was decided in the negative. And in State ex rel. v. Judge, 29 La. Ann. 776, this court said that “jurisprudence and long uniform practice have settled the interpretation”; that the costs are not required to be thus included. In the decisions cited by appellee, in support of the motion to dismiss, this question was not involved. Thus, in State ex rel. v. Judge, 21 La. Ann. 64, the sole question was as to whether the suspensive appeal bond to be given in the ease should have been in an amount fixed by the judge or in an amount “exceeding by one-half the amount” of the judgment. In Moussier v. -Gustine, 25 La. Ann. 36, the ground of the motion to dismiss was not that the costs had not been included in the computation of the amount of the bond, but that “the surety on the appeal bond was the same person who was surety on the' injunction bond.” What the court decided in Malain v. Judge, 29 La. Ann. 793, was that in a case where a moneyed judgment has been enjoined, and the injunction has been dissolved with damages, it is the judgment appealed from — namely, that dissolving the injunction — that regulates the amount of the suspensive appeal bond, and not the enjoined judgment. And, in like manner, the point decided in State ex rel. v. Judge, 35 La. Ann. 1174, was that, where the collection of taxes has been enjoined, and the injunction has been dissolved, the enjoined taxes are not required to be included in the amount of the suspensive appeal bond. True, the court in making its ruling in those cases used the expression that the suspensive appeal bond would have been sufficient if given for the capital, interest, and costs of the judgment appealed from; but this expression, as bearing upon the question whether or not costs have to be included in a suspensive appeal bond, was the merest obiter, as that question was not involved in those cases, and, as shown hereinabove, that question has been expressly decided the other way in several cases. The motion to dismiss is overruled.