Demarest v. Beirne

Ox Motiox to Dismiss. The opinion of the Court was delivered l>y BI5K.UPDIÍZ, C. J. The appellee asks a dismissal of this appeal for the reasons: That the matter involved is unappealable, as the decision of such a case is within the exclusive discretion of the district judge and the sum is less than $1000. That the judgment complained of, if a definitive judgment, is not signed and, therefore, inchoate and if an interlocutory order, works no irreparable injury. The judgment in question was rendered after the decision of the cause on its merits. It increases the amount previously fixed by the court, as that of the bond to be furnished, on an order allowing a devo-lutive appeal. The appeal had been granted on the fixing of a bond for $200 j but subsequently, on a rule by plaintiff, the court amended the order by increasing the amount of the bond to $900, directing the appellant to furnish it within a given delay, and providing, in default, that the appeal shall be dismissed. The defendant in the case and in the rule, then obtained a suspen-sive appeal from this decree, on his giving a bond, which was furnished. It is this appeal which the plaintiff now seeks to have dismissed, for the reasons stated. It cannot be denied that the fixing of the amount of a bond to be furnished for a devolutive appeal is a matter within the discretion of the judge a quo; but that discretion, like all others with which judicial officers are vested, must necessarily be a legal and not au arbitrary discretion. Ijp case of abuse of that power, the action of the lower judge in an appealable case, is revisable by the appellate court, when presented in a proper form, just as it is reviewable in cases in which the sufficiency of bonds and of sureties is primarily passed upon. Where it is found that the power has been improperly exercised, the Supreme Court can correct the error and afford adequate relief. [753] In the recent case of the State ex rel. Müller, ante p. 189, we had occasion to consider a ldndred question and to review the action of a district judge, fixing, as the amount of a bond of a devolutive appeal, a sum which, at first blush, appeared to be excessive ; but, as there were no data in the record, to enable us to state what the amount should have been fixed at, we expounded tho rule of law for the g-uidance of lower courts in such matters and left the district court free to reconsider Ms decree and to take proper action. We, therefore, have the power to review such decrees by courts a qua and the exercise of that power can consequently be lawfully invoked at our hands. It is not correct to say that the matter is not appealable, because the amount “involved” is less than $1000. There is no dispute that the main suit is appealable. Being such, all orders therein made, are necessarily appealable, as accessaries follow the principal, particularly such decrees as might defeat the very right of appeal. The order is not to be viewed as a final judgment. It is not, therefore, to be signed, as definitive judgments, which pass upon the merits of a controversy, are required to be. It is simply an interlocutory aecree which remains under the control of the district judge and which, should it remain unaltered and not complied with, might cause the appellant an irreparable injury, which would consist in the dismissal of his appeal. The motion to dismiss is without merit and is denied, with costs. On the Mekxts. Defendant obtained an order for a devolutive appeal from a judgment on tho merits of this cause on a bond for costs fixed by the order at two hundred dollars. Plaintiff, alleging that the costs far exceeded the amount, filed a rule to amend the order of appeal by increasing the amount of the bond, and, in default of the additional security being furnished by defendant, to dismiss his appeal. The judge a quo, after hearing the parties and after appointing an expert whose report exhibited costs to the amount of nearly, nine hundred dollars, rendered judgment amending the order of appéalso as to fix the bond at nine hundred dollars, and requiring, the defendant to comply therewith within five days, under penalty of dismissal of his appeal in case of default. [754] From this judgment the present appeal is taken. To the general rule that, after compliance with the order of appeal by filing bond, the jurisdiction of this Court attaches and that of the lower court is divested, there exists the well recognized exception that the jurisdiction of the latter continues for the purpose of inquiring into and determining the sufficiency of the bond. State ex rel. Fairex vs. Judge, 33 Ann. 928; Dumas vs. Mary, 29 Ann. 808. It is perfectly clear that a party is not entitled to a devolutive appeal under the law, without furnishing a bond for costs. If the judge of the inferior court has improvidently fixed the amount of the bond at a sum less than the costs and may not amend the same after discovery of his error, we are at a loss to conceive how such error could be remedied. Certainly no proceeding in this Court could accomplish the result, since, without inquiring into facts dehors the record, we could not obtain the information on which to base our action. Thus the anomaly would be presented of a party enjoying a right without performing the conditions upon which alone the law grants it to him. In matters of this kind, where the duties of the judge are defined by law, he is bound to obey the law, and if he discovers that he has inadvertently departed from its injunctions, he is not precluded from correcting his error. It matters not whether the bond is insufficient through mistake of the judge or default of the party, the law must be complied with, and it lies within the province of inferior courts to see that parties who appeal to this Court shall comply with the legal conditions precedent to the exercise of such right. As to that portion of the order appealed from which purports to dismiss the appeal already in this Court in case of non-compliance within the stipulated delay, we shall treat that as mere surplusage, being a matter necessarily for the action of this Court, when failure to comply with such order shall be properly brought to our notice. Judgment affirmed. Rehearing refused.