Pradat v. Legare

Morgasst, J. Plaintiff sued the defendant, Margaret C. Legare, in the parish court, claiming to bo the owner of certain furniture. There was [338] judgment in her favor. Prom this judgment a suspensive appeal was taken to the district court. John O. Logare was surety on tho appeal bond. The bond was for six hundred dollars. Tho conditions of tho bond wore that whereas “ Margaret 0. Legare has this day obtained a suspensive appeal from a final judgment rendered against her and in favor of "Widow A. W. Norcross, administratrix, and in her personal right, decreeing her to bo tho owner of certain property now in the possession of your appellant, to wit: furniture valued at tho sum of three hundred and sovonty-iivo dollars and costs in tho suit No. 369 of the docket of the honorable parish court of tho parish of Ascension, and signed on the twenty-fifth day of October, 1873, this bond is given as security that tho abovc-bound.cn appellant, Margaret C. Legare, shall prosecute her said appeal, and that she shall satisfy whatever judgment may bo rendered against lior, or that the same shall he satisfied out of tho proceeds of tho sale of her estate, real and personal, if she be east in lior appeal, otherwise that the said-, lior surety, shall bo liable in her place.” The judgment of the parish court was affirmed by the district court. Thereupon plaintiff instituted this suit in the district court against the principal and surety on tho appeal bond, in which she claims damages against both principal and surety for upward of a thousand dollars, tho judgment as to the surety to bo satisfied upon the payment of six hundred dollars, tho amount of the bond. There was judgment against the principal and surety, in solido, for three hundred and seventy-five dollars, together with all costs "of the suit in which the bond was given, and the costs of appeal. Upon tho question for damages a nonsuit was ordered. Defendants severally excepted to the petition on account of its vagueness and generality. It seems to us that the exception was properly overruled. The cause of action is sot out with sufficient distinctness. They then excepted— First — That there was a nonjoinder of proper parties plaintiffs; and, Second — That there was a misjoinder of parties defendant and an improper cumulation of distinct causes of action against different defendants. We do not see wherein there was a nonjoinder of proper parties plaintiffs. This suit is instituted by the same party and in the same capacity that the suit out of which it springs was instituted, and wo do not see who else there was as plaintiffs to join in it. Neither do we see an improper cumulation of distinct causes of action against different defendants. The cause of action as against the original defendant is the damage suffered by the plaintiff by reason of her being deprived of her property. As against the other defendant, the cause of action is the [339] bond which was given to respond to the value of the property fixed in tho bond of which tho plaintiff had been deprived the uso. In this court defendants filed tho peremptory exception that plaintiff’s petition discloses no cause of action. But the cause of action rests, we think, upon the grounds just expressed. The next question argued is whether or not a principal on an appeal bond can be sued on the bond ? Tho suit as against Mrs. M. C. Logare is not on tho appeal bond, properly speaking. She is sued for damages arising from an alleged illegal detention and uso of certain property claimed by the plaintiff. It is not, therefore, necessary to answer the question propounded. Tho next question presented is, docs plaintiffs petition disclose any cause of action against John C. Logare, the other defendant, as surety on the appeal bond ? Tho argument is that in order to recover against a surety on an appeal bond, the face of the papers must affirmatively show that all the necessary steps have been taken to enforce payment against the principal; that an execution must bo shown to have been issued and returned unsatisfied, and that until thoso steps have been taken no cause of action exists against the surety. After the judgment appealed from the parish court was affirmed by tho district court execution issued. Tho sheriff returned the writ, saying that he was unable to find any of tho articles of furnituro described in the writ of possession, they not having been produced by defendants. Then plaintiff issued a writ of distringas, the execution of which was prohibited. Then this suit was instituted. Now, the defendants say that article 635 of the Code of Practice provides that if the party who has been condemned to deliver an object con-coals it, or carries it out of the jurisdiction of the court, so that tho sheriff can not seize it, tho party in whose favor the judgment was rendered shall have the choice either of instituting an action for damages or of compelling a specific execution of the judgment by obtaining a sequestration of his other property until he has satisfied it; and that article 63C of the Code of Practice provides that when the judgment orders, not the delivering, but the doing or- refraining from something specified in it, the party ■ condemned, on demand made by the sheriff that he shall comply with it, refuses or neglects to do so, and this refusal or neglect appears by a certificate of the sheriff, the party in whose favor the judgment was rendered may obtain, on motion, an order to distrain all the property, movable and immovable, of tho party who is in default, until ho shall have fully satisfied the judgment. And defendants say that haying obtained a writ of di siringas, about the propriety of which a dispute is still pending, plaintiff can not proceed in an action for damages and on the appeal bond; that one of two remedies was subject to her choice, but that she could not avail herself of both. [340] As we have before said, tire suit as against the original defendant is for damages caused by her illegal detention of the property, and is, therefore, distinct from tho suit in which the title thereto is set up. As to the surety, her .obligation is fixed by the bond. The judgment, to effect tho suspension of which the bond was given, was affirmed. Execution issued thereon, and the sheriff returned the writ unsatisfied. The surety’s liability then attached. It is contended that the value of the property is not established, and therefore the action must fail. The value of the property was fixed in the bond, and this is sufficient. The judgment was for the amount designated in the bond, three hundred and seventy-five dollars, with the costs of suit in the original action. The judgment was correct. Judgment affirmed. Rehearing refused.