Barrow v. Clack

On Motion to Dismiss Appeal. The opinion of the court was delivered by Watkins, J. The defendant and appellee moves to dismiss the appeal, on the ground that the plaintiff and appellant, C. M. Barrow, has not furnished a legal bond of appeal, for the reason that A. Teutsch and Wm. Hartson are his co-plaintiffs in this suit, against whom the judgment appealed from was rendered for costs, and, also, appellees in this court, and incompetent as sureties thereon. The two persors who are designated as sureties on the plaintiff’s appeal bond are joined in the petition as plaintiffs, the opening averment of which is that “ the petition of Charles M. Barrow * * * and of Wm. Hartson and A. Teutsch * * * citizens of said parish, respectfully represent;” and the concluding averment is that “wherefore they contest the election of said Clack, defendant, and ask for citation on him.” And their prayer is for “ judgment declaring that said Charles M. Barrow was lawfully elected sheriff of said parish at said general election, and that commission issue as such to him, and that said John H. Clack pay all costs,” etc. — the signatures of the parties named, and those of many others being appended thereto. The judgment appealed from runs in favor of the defendant, declaring him legally elected sheriff, and adjudging plaintiffs, collectively, to pay the costs of suit. From that judgment Barrow alone appeals, but, under .the law, [480] the parties named as plaintiffs who did not join in the appeal become appellees, or in other words parties to the appeal, and for that reason they are absolutely incompetent to sign Barrow’s appeal bond as sureties. In Leeds vs. Yeatman, 12 La. 383, it was held that the surety on an injunction bond was a competent surety on an appeal bond, “ unless he has been, by the judgment appealed from, condemned as a party,” etc. In Wood vs. Harrell, 14 An. 61, it was held that nothing prevented a warrantor, against whom no judgment had been rendered, from becoming a surety on the defendant’s appeal bond. In Funch vs. Davidson, 32 An. 718, it was held that a surety on a bond given for the release of property from seizure under an attachment is competent to become surety on an appeal bond. The theory of those cases seems to be that being a party to the original suit and, condemned by the judgment therein rendered is the cause of the surety’s incompetency. But in Grenier vs. Pendergrast, 2 R. 235, the proposition is differently stated to be that “it is true that if both the principal and surety, against whom damages had been given on the dissolution of an injunction, had joined in the appeal, they would have been bound to give one solvent surety, although they were both admitted to be sufficiently solvent to remove all idea of danger on that score; the reason would be that the law expressly requires surety on the grant of any appeal” — the theory appearing to be that the test of the surety’s competency is that he is or not an appellant. This ruling was followed in State ex rel. Wilson vs. Judge, 22 An. 262, in State ex rel. Coleman vs. Judge, 27 An. 234; but in Bowman vs. Kaufman, 30 An. 1021, the foregoing cases were reviewed and the same were held to be inapplicable since the enactment of the statute requiring appeal, bonds to be made payable to the clerk of the court — constituting, as it does, all parties appellees who are not appellants. The statement of the court on the subject being that “ since those decisions were made, important and radical alterations have been made in the law governing appeals. Now, when an appeal has been taken by motion in open court, all parties who are not appellants are declared [to be] appellees, and the bond in favor of the clerk is for the benefit of each and every one of the appellees, and may be sued on accordingly. [481] “ When the plaintiff took her appeal in open court and filed her bond, the surety, who had been condemned with her solidarily for damages, became eo instanti a party to the appeal as appellee. When that surety then became again surety on the appeal bond, he occupied the double and inconsistent positions of an appellee, whose interest was a maintenance of the judgment, and a surety to pay the judgment on appeal in case the appellant did not pay. “Under these changes in the law governing appeals, and because of them, we hold that in all cases where a party is necessarily appellee, if he is not appellant, the surety on an injunction bond is incompetent to be a surety on a bond for an appeal from the judgment dissolving the injunction and for damages against principal and surety in solido. And it was so held by us at the last term. Dumas vs. Mary, 29 An. 809.” And in the case of Bauer vs. Locht & Cordez, 30 An. 685, the two foregoing decisions were quoted approvingly “ on the ground that the surety on an injunction bond being a necessary party, either as appellant or appellee, could not be surety on the appeal bond.” There has since been neither statutory change in the law applicable to appeals or in the decisions of the court governing them, and we may therefore accept the cases quoted as having definitely settled the question that a necessary party, either appellee or appellant, is not competent to sign an appeal bond as surety, and upon this theory the sureties on the appeal bond of C. M. Barrow, appellant, are incompetent, the bond illegal and the appeal must be dismissed. It is true that the plaintiff subsequently filed another appeal bond, on the 10th day of October, long after the term of court whereat the judgment appealed from had been rendered and signed, to-wit: on the 28th day of July, 1892; but it is the settled jurisprudence of this court that its jurisdiction attaches as soon as the appeal bond is filed, and thereafter the lower court has no authority to take any steps except to transmit the record. Pink vs. Martin, 10 R. 147; Cary vs. Richardson, 32 An. 1170. Consequently this second bond is altogether unavailing to save the appeal, notwithstanding it is undeniably a judicial confession of the incompetency of the sureties tendered on the first one — those on the second being different. The motion is therefore maintained and the appeal dismissed.