Bickham & Son v. Hutchinson

The opinion of the court was delivered by Breaux, J. This was a suit for damages growing out of a writ of attachment obtained by plaintiffs on the allegation that the defendants had mortgaged, assigned or disposed of, or were about to mortgage, assign or dispose of their property, rights and credits with intent to defraud their creditors. Defendant’s motion to dissolve the attachment was sustained by the District Oourt. On appeal to the Circuit Oourt of Appeals, the judgment was affirmed. [766] The case was tried on its merits after the attachment had been dissolved, and judgment was rendered in solido in favor of the plaintiffs and against the defendants for the sum of four hundred and eighty dollars, with interest. On the reconvention of one of the defendants, W. P. Hutchinson, he recovered judgment for damages against plaintiffs in the sum of two thousand seven hundred and fifty dollars, with interest. On the reconventional demand of the other defendant, O. H. Bailey, he recovered judgment for damages against plaintiffs in the sum of twelve hundred dollars, with interest. Plaintiffs appealed. The appellees moved this court to dismiss the appeal and urge in support of their motion, that the amount of the appeal bond does not exceed by one-half the amount of the judgment rendered against the appellants and besides that the appeal bond does not contain the condition that the appellant shall prosecute his appeal. Plaintiffs have furnished two bonds, one in favor of W. P. Hutchinson for the sum of four thousand one hundred and twenty-five dollars, and the other in favor of C. H. Bailey, the other appellee, for the sum of one thousand eight hundred and seventy-five doliars. The conditions of each bond were that the“ appellants shall prosecute their said appeal with effect, or shall pay and perform such judgment that may be rendered against them.” With reference to the amount of the bond, it is true that only one judgment was rendered in the suit, but it decreed the amount each defendant was entitled to in the opinion of the court a qua. The defendants had severed in their defence,each claiming an amount part of which was allowed. There was nothing informal in executing two bonds. There was in favor of each defendant a bond for an amount exceeding by one-half the amount for which the decree was rendered in his favor. The requirement of Art. 57, C. P., was met by giving two bonds. One appeal bond for the two amounts would not have been greater security. Now with reference to the conditions of the bond. The erroneous substitution of “or” to. “and ” is not, in our judgment an error fatal to the appeal. It may be that the words “or” and “and” are not, strictly speaking, interchangeable, and yet in construing statutory enactments even in criminal cases they are sometimes used as convertible words. We will not stop to consider atlength the differ [767] ence or similarity in meaning of these words. We are satisfied that the mere substitution of the word “ or ” in the condition of a bond under the jurisprudence of this court regarding the forms of bonds should be adjudged to have the effect for which plaintiffs contend. In mattor of appeal bonds this court has adopted a liberal construction in order that principals and securities may be held bound as intended when the bonds were executed. That construction we are justifiable, we think, in following. Sedgwick on the Construction of Statutory Law, p. 871; Sutherland on the Construction of Statutory Law, p. 881. The motion to dismiss the appeal is denied.