State ex rel. Lynch v. Judge of the Second Judicial District Court

Wyly, J. The complaint in this case is, that the judge has improperly set aside the devolutive appeal taken by the relators in the case of P. B. Lynch et als. v. A. J. Miller et als., on the ground that the surety on the appeal bond is not good and sufficient. In answer to the mandamus the judge states that “ the plaintiff did not take any legal steps to justify the surety, as. will more fully appear by the annexed copy of the petition for appeal, appeal bond and proceedings upon the rule made a part of this answer and return marked ‘ A.’ T-he relator did not present any new bond for my consideration, and merely asked leave to file one at a future day. Not knowing any law to justify me in refusing to pass upon the rule taken, and allow a delay for the substitution of a new bond to be executed at a future day at the pleasure of appellants, I proceeded in my judicial capacity to pass upon the rule, and there being no proof of the sufficiency of the appeal bond the appeal ivas dismissed, and no bill of exceptions was taken to my ruling in refusing the delay to procure a new bond.” Upon his own showing, the District Judge had no ground to render the order dismissing the appeal, there being no proof that the surety on the bond for devolutive appeal was insufficient. The fact that “the plaintiffs did nob take any legal step to justify the surety,” did not authorize the judge to render the order setting aside the appeal. One might neglect to justify his surety and yet the latter might be the most solvent person in the State. It is well settled that after the appeal bond has been given the court of the first instance can only inquire into the solvency of the surety, and that this court will examine the evidence taken in relation thereto on an application for the writ of prohibition. In order to justify the decree setting aside the appeal the insufficiency of the surety must be shown affirmatively by competent evidence. 22 An. 591. The surety accepted on the bond in such cases is presumed to be good, and if so, the jurisdiction of this court over the appeal is unimpaired, [715] notwithstanding the failure of the appellant-to justify or prove the solvency of his surety in the c.ourt a qua. 21 An. 730, 733, 736; 22 An. 115, 591. Bub the relators have mistaken their remedy. It is by the writ of prohibition and not by mandamus. 21 An. 113. The relief sought can not, therefore, he granted. It is therefore ordered that the mandamus applied for be disallowed, and that the petition he dismissed at the costs of the relators. Mr. Justice Howell took no part in this decision.