Weil v. Schwartz

On the merits by Breaux, J. On the Motion to Dismiss. The opinion of the court on the motion to dismiss was delivered by NiopoLLS, O. J. The plaintiff foreclosed a mortgage note. The .property was sold and adjudicated to E. Y. Benjamin. Benjamin failing to comply with the adjudication, the property was ordered to be resold at his expense. I-Ie, thereupon sued out an injunction, which being tried in the District Court, resulted in a judgment in favor of Weil and against Benjamin, condemning him to comply with the adjudication, and to ac•cept the deed tendered him by the sheriff, and to pay into the latter’3 hands the amount of the adjudication, to-wit: the sum of five thousand three hundred and forty-five dollars. Benjamin applied for and obtained an order for-a suspensive appeal. The court fixed the amount of the bond at two hundred and fifty dollars, and it was furnished accordingly. Appellee moved to dismiss the appeal on the ground that tho .amount of the bond is not sufficient to justify a suspensive appeal. That proposition may be true, but it does not lead up to the dismissal of the appeal. “When by order of court a suspensive appeal has been allowed on appellant’s furnishing bond in an amount fixed by the court and bond has been furnished accordingly, it will not be dismissed because it cannot be maintained. Though not good as a susjicnsive appeal, it stands good as a devolutive appeal.” Succession of Bey, 47th Ann., 219; Succession of Armat, 20th Ann., 340; Succession of Keller, 39th Ann., 579; Duperron vs. Van Wickle, 1st Rob., 324; Tipton vs. Crow, 3rd Rob., 63; Jones vs. Frellsen, 9th Rob., 185; Surget vs. Stanton, 10th Ann., 318; Rachel vs. Rachel, XIth, Ann., 687; Michener vs. Reinach, 49th Ann., 360. [1549] The motion to dismiss is hereby denied and the appeal maintained. ■Monroe, J., takes no part, as he was not a member of the court, when the case was submitted.