Keenan v. Whitehead

Merrick, O. J. There is a motion in this case to dismiss the appeal. The prayer of the petition is for the sum of $1,500, and general relief. The judgment, which was rendered in March last, is for $1,500, “ with interest from the 15th day of December, at the rate of five per cent, per annum,” &c., the year being omitted. The defendant was allowed a suspensive appeal, upon giving his bond with good and solvent security according to law. He executed a bond on the 22d of March, ] 860, in the sum of $2,250, the proper amount for a suspensive appeal from a judgment for $1,5C0 without interest, but insufficient if interest be added. [334] The defendant contends that, as the judgment is indefinite as to the date from which interest is to run, and as plaintiff has not demanded interest in the petition, the bond is sufficient. That if it is not good for a suspensive appeal, it is good for a devolutive appeal. The suit was instituted on the 15th day of December, 1859, and as all debts (at least arising ex contractu) boar interest, the interest decreed must be considered as commencing on that day. This interest ought to have been covered by the bond. The condition upon which a party is permitted to appeal, is, that he execute his bond in such sum as ordered by the Judge' granting the appeal. Until he has complied with this order, his appeal is not perfect in this court, either as a suspensive, or a devolutive appeal. C. P. 573, 574, 575. It is otherwise where the appellant has complied with the Judge’s order, and given bond in the sum fixed. In such case, we hold, that if the bond is insufficient for a suspensive appeal, still it is good as a devolutive appeal, because it is the amount fixed by the Judge. See 2 La. 87, G An. 562, and 5 La. 129. See also 2 An. 462, 4 An. 534, 5 An. 360,12 An. 175,10 An. 110, 5 Rob. 63, 9 Rob. 167. It is, therefore, ordered, adjudged and decreed by the court, that the appeal in this case be dismissed, at the cost of the appellant. Land, J., absent.