State ex rel. Hays v. Judge of the Fifth District Court

Hgvyeli,, J. The only question presented in this proceeding is, whether or not the lower court can order the execution of a judgment, from which a suspensive appeal has been taken, because the appellant fails to produce and justify his surety on the trial of a rule taken by the appellee for the purpose of testing the sufficiency of the bond. Or, in other words, if when called on, the appellant does not adduce proof affirmatively to show that his surety is good, and no evidence to impeach him is offered, can the lower judge presume him to be insufficient, and order execution to issue ? It is now the jurisprudence of this court that he can not, because some proof is necessary to destroy the presumption arising from the acceptance of the bond with the surety signing it. See 22 An. 592; 23 An. 714. It is therefore ordered that the prohibition herein be made perpetual with costs, and without prejudice to appellee’s right to impeach the surety on the appeal bond.