Heirs of Stafford v. Renshaw

[444] On Motion to Dismiss The opinion of the Court was delivered by Bermudez, C. J. The plaintiffs and appellees move to dismiss this appeal, because “ the bond is for no amount fixed by the court, and not as is provided for by article 577, O. P., there being no order of the judge fixing the amount for a suspensive appeal; and the amount of the bond, in such a case, should have been for one-half over and above the judgment annulled.” This is a suit for the nullity of a judgment. It is coupled with an injunction to arrest the sale of the property under seizure. The District Court annulled the judgment and perpetuated the injunction. From this judgment the defendant appealed. The order of appeal fixes the amount of the bond at $250 for a devolutive appeal, and • the bond furnished for such appeal is for that amount. The order does not fix any as the amount of the bond for a suspensive appeal, but merely directs that it be “ according to law.” Had the injunction been dissolved, it would not have been difficult to ascertain the amount for which a bond for a suspensive appeal should have been furnished; but, as the injunction was perpetuated and the judgment about to be enforced was annulled, it is not easily perceived at once, for what amount the bond for a suspensive appeal should have been given, the order of appeal specifying none. The condition of all appeal bonds is that the surety shall eventually satisfy, in the place of the principal, whatever judgment the appellate court may render against him. Under any contingency such judgment, however adverse to the defendant, could only be, in the present case, one affirming the judgment of the lower court which annulled the judgment attacked, and perpetuated the injunction and condemned him to pay costs. The amount of the bond in the case of a suspensive appeal from a judgment ordering the payment of money is fixed by Art. 575 C. P. On the wild assumption that the costs in the case amounted to twenty-five hundred dollars, the bond given for a suspensive appeal, which is for four thousand dollars, would be amply sufficient. The lower court fixed the amount of the bond, in case of a devolutive appeal, at $250, which could only be for costs. It virtually fixed the same amount for the bond in ease of a suspensive appeal. The case is before us, and is now to be decided on its merits. It is impossible to conceive of what use it would prove to the appellee to dismiss the appeal as far as suspensive, as the suit would still remain before us on the devolutive appeal. Motion denied.