Balph v. Hoggatt

The judgment of t-heceourt was pronounced by Slidell, J. There is .a motion to. dismiss the appeal in this case, on the grtfund that the appeal bond is not for the amount required by law. The order of appeal was, that a suspensive appeal be granted to the defendant, upon entering into bond with surety, conditioned according to law, in the sum.of $1,500. The appellant gave bond in the sum of $1,500. This sum we find on calculation to be for about $13 less than it should have been, to authorise a suspension appeal. We do not think this mistake of the judge a ground for dismissal. The bond was ample to authorise a devolutive appeal. It would be an unjust imposition of trouble and expense upon the appellant, to dismiss the appeal, or even to hold up the case until he could correct the irregularity in the court below. The appellee is not injured, for it is a much larger bond than would be neeeasary for a devolutive appeal, in which light we regard it. See Parks v. Patton, 9 Rob. 167. The alleged failure of consideration is not proved, and judgment was correctly rendered for the amount due on the note. We find, however, nothing to authorise the allowance of eight per cent interest. The plaintiff is entitled to five per cent, and this without a putting in default, because it was the price of property producing fruits. Civil Code, art. 2531. It is therefore decreed that the judgment of the District Court be so amended, as to allow interest only at the rate of five per cent per annum from the 16th January, 1846, and that, in all other respects, the said judgment be affirmed ; the plaintiff paying the costs .of this appeal.