Sauer v. Union Oil Co.

On Motion to Dismiss The opinion of the court was delivered by Bermudez, O. J. In support of his motion to dismiss, the plaintiff and appellee contends that he should have been, and was not, cited, not even asked to be cited, and that the appeal was not perfected by the appellant giving bond, as required by law, within the tan days prescribed. It appears that a verdict having been returned and a judgment rendered thereon, for $3500, against the defendant — the judgment signed in open court on the last day of the term, namely the 23d December, 1890 — the defendant moved for and obtained a suspensive appeal, returnable to this court, on the third Monday of January, 1891, on defendant furnishing bond, according to law. The record shows that, subsequently, viz.: on January 2, 1891, •within the ten days following the signature of the judgment within •which a suspensive appeal could be taken, the defendant made [703] another motion, which was granted, to the same effect as that made ■on the last day of the term; and, besides, filed a petition for the same purpose, in which it is alleged that the appellant, being unable to furnish bond with personal security, proposes to avail itself of the privilege accorded by law (Article 3065 of the R. O. C.) and to substitute thereto municipal bonds, specially designated, for the sum of :$6500. The judge, at chambers, repeated the orders previously made, granting a suspensive appeal, returnable on the stated day, on the appellant depositing the bonds, specifying them, with the clerk of the court, to secure the payment of such judgment as might be rendered on appeal. On the same day, January 2, 1891, the appellant deposited the bonds with the clerk; an instrument in writing, having the appearance of a bond, being duly drawn up and signed by counsel for the appellant and by the clerk, to show the fact of the deposit, its nature •and object, and the actual delivery of the bond to the court officer. The complaint of the plaintiff and appellee is, that he was not cited, that no citation was issued to or was served on him, to answer the appeal, returnable to the Supreme Oourt on the third Monday of January, 1891, according to law. The complaint is evidently based upon the assumption that, under the circumstances of the case, the appellee was entitled to be cited to answer the appeal; but this is a groundless pretension. There was a motion made in open court on the 23d day of September, 1890, the last day of the term, when the judgment was signed, for a suspensive appeal, which was granted, returnable on the third Monday of January following, to this court, on the defendant furnishing bond, according to law. That portion of the order allowing the appeal on the defendant furnishing bond according to law was a superfluity. As much may be said of the motion, petition and orders filed, and made on January2, 1891. The right of appeal is a constitutional prerogative in a case of this description, the amount exceeding $2000, and the judge would have had no discretion to refuse it. Neither would he have had the right to add to or take from the requirements of the law, in such cases of suspensive appeal from money judgments. The Code of Practice declares that, if the appellant who has ob [704] tained the order of appeal, within ten days after the signature-of the judgment and the ten days following the adjournment of' the court holding term in the county, has within that time furnished bond and surety, conditioned as the law directs, for an amount exceeding by one-half that for which the judgment was rendered, execution shall thereby be stayed. O. P. 575, amended in 1870,, p. 49, and in 1890, p. 88. It is settled that when the appeal is asked and granted in open court within the ten days it is unnecessary to have the appelleecited, because he is considered as present in court and taking notice-of all proceedings transpiring therein in the cases in which he is, concerned, particularly those in which he has obtained judgments to> become executory in the course of time, in the absence of any suspensive appeal. The judge, in cases in which money judgments are rendered, has, no right to fix the amount of the bond for a suspensive appeal, by requiring it to be either for a larger or smaller amount than that provided by law. The Code regulates that amount, and whatever-the order cf the judge may be in such cases, the appellant furnishes, the bond, as far as the amount is concerned, at his own risk and 'peril. The motion for a suspensive appeal having been made and granted on the day on which the judgment was signed, and which was the last day of the term, it follows that the requirements of the law were fulfilled carefully, and that the plaintiff and appellee was not entitled to a citation to answer the appeal, returnable here, as already stated. He is presumed to have been in court when the motion was made and granted, and therefore to have received the notice which the-service of a citation would have conveyed,, of the order allowing the appeal, and making it returnable here on a particular day,, which, in this case, is that fixed by special legislation. The appeal was perfected within the ten days prescribed by law. It was useless for the appellant to have again moved and petitioned, on the 2d of January, 1891, for-a suspensive appeal, and for leave to furnish the public securities,, instead, of a personal obligation with a surety, as is usually done. The appeal had been previously asked and granted. The subsequent proceedings to the same effect were- superabundant.. They* did not amend or modify the anterior ones.. [705] The appellant does not derive from the court, but from the law, the privilege of substituting valuable public bonds to an ordinary security) as is usually done. Article 3065 R. R. O. distinctly declares that whenever a person who is bound by law to give a surety, can not do so, he is admitted to give in pledge a thing which may be kept without difficulty or risk, and which is to be deposited in the hands of the public officer whose duty it is to receive the surety. The clerk of the court is the one in whose favor the bond for an appeal is required by law to be made, and he was the officer with Whom the bonds substituted to an ordinary surety were to be, and actually were deposited, to await final judgment. , There is no other complaint in the motion to dismiss. It, therefore, follows that, under the circumstances of this case, the appellee had due and seasonable notice of the motion of appeal and order granting the same and fixing the return day, and that he can not be heard to say that he has not been cited, and that the ap - pellant should have at least prayed that he be thus notified. Motion overruled.