Coleman v. Bureau of Endowment of District Grand Lodge No. 21

CHARLES F. CLAIBORNE, JUDGE. On May 10th. 1918,plaintiff ootained judgment against the defendant for “Four Hundred Dollars with legal interest thereon from Novemher 1st. 1915 until paid and all costs". From this judgment defendant obtained an order for a suspensive appeal upon furnishing bond "according to law". The defendant furnished bond in the sum of Six Hundred and fifty dollars. In this Court, the plaintiff and appellee moves to dismiss the appeal on the following ground: "That the appeal herein taken should be dismissed because the appeal bond required by law has not been furnished herein. The judgment and interest thereon amounted, at time of motion of appeal to the sum of $450.56 ( i. e. $400.00 judgment and 2 yrs. 6 mos. and 10 days interest thereon at 5¡í ). Therefore the appeal Dond should have been furnished for one and one half times said amount, or $675.84. That the appeal bond that was furnished and filed herein in the court below, as shown by the transcript, was for only $650.00, an insufficient amount". Article 575 of the Code of Practice requires a bond "for a sun exceeding by one half the amount for which the judgment was given, if the same be for a specific sum". In applying this article the Supreme Court in 1852 said, in Ross vs Pargout, that the bond must be for a sum exceeding by one half the amount of the judgment in capital and "the interest due at the rendition of the judgment". [132] "There cannot he any douht that Interest given hy a judgment is part of the Judgment,- and ought to he secured on an appeal as well as the principal sum". 2 La. 85. This opinion has heen followed ever since. 9 A., 310; 15 A., 333; 22 A., 626; 29 A., 776; 42 A., 290; 51 A., 1058; 112 La., 564; 122 La., 49; 138 La., 1082. In Reynolds vs. Egan 122 La., 49 the court said: "That la firmly fixed in our jurisprudence" . Our own calculations^and the admissions of appellant^ establish that the amount of the judgment in capital and interest, on the day on which it was rendered, was for the sum of $ 450.56 one half of which is 225.28 The hond should have heen for ‡ 675.84 But it was for only 650.00 It was therefore short $ 25.84 Nor was the hond good for a devolutive appeal, because the order of appeal fixed no amount for the hond. A hond to he valid must be for the amount required hy law or for that fixed by the order of the Judge. 1 H. D., p 51 No. 6; 2 La., 86; 15 A., 333; 19 A., 507; 22 A., 626; 25 A., 424; 51 A., 1059; 112 La., 564 (567); 116 La., 962. It follows therefore that if the law had not been changed since those decisions have heen rendered that appellant's appeal must have heen dismissed. It is also settled that the motion to dismiss an appeal on the ground that the hond is not sufficient in amount as required by law may be made either in the trial court or in the Appellate Court. 22 A., 35; 45 A., 1427; 51 A., 1059; 122 La., 49, 53. But since the above decisions were rendered Act 112 of 1916 p. 241 was passed. It is entitled; An Act, To regulate the form and effect of bonds furnished in judicial proceedings and to provide for the correction of errors, inaccuracies and omissions in such bonds, etc".. [133] Section 2 of said act provides. "Shat whenever any litigant in this State shall have furnished in connection with any judicial proceeding a hond and surety, and the said hond is insufficient in amount or incorrect hy reason of errors or omissions therein, such litigant shall have the right to correct such insufficiency, error, or omission in the Court of original jurisdiction, and to furnish new or additional hond and surety conditioned according to law etc.". Section 3 reads as follows: "That the right to furnish such new or such supplemental or additional hond shall he exercised as follows: x x x if the adverse party, or any other party in interest, shall cause to he served upon hlm^ through the proper officer for service, a notice that such adverse party, or the party in interest, claims that a hond furnished in the proceeding to which he is a party or in which he has an interest, is insufficient either as to form or substance or of the solvency, or because of the pecumiary insufficiency of the surety or sureties thereon, the said party who has furnished such hond shall have thd. right within two days, exclusive of Sundays, legal holidays and half holidays, to furnish the new hond, or supplemental hond, or additional hond above referred to etc.". Section 8 provides: "That the foregoing provisions shall apply to bonds in cases of appeal, etc.". Section 9: "That no appeal shall he dismissed, nor shall any writ, or other process he set aside on account of any error in the amount of the hond, or for any Inaccuracy or omission in the hond or for the insufficiency of any surety or sureties, on said hond until the party furnishing such hond shall have failed to correct the error, inaccuracy, or omission, or to have furnished, supplemental or additional hond, or surety or sureties as hereinabove provided". Section 10: "Tha/t_no suspensive appeal shall bd allowed from any judgment, or order of Court, allowing the filing of any new, supplemental, or additional surety or sureties to a hond, already furnished". [134] It follows from the provisions of that act that "no appeal shall he dismissed x x on account of any error in the amount of the hond" and that any "litigant shall have the right to correct such insufficiency in amount in the court of original jurisdiction^ "if the adverse party shall cause to he served upon him "through the proper officer for service" a notice that such adverse party claims that the hond furnished, in the proceeding is Insufficient'.1.. ^ It has heen held in White vs Maison Blanche, 142 La., 265 that an appeal will not he dismissed on the ground that the appeal hond is not sworn to as required hy Sec. 4 of Act 112 of 1916, when it is not alleged that the "appellant was given any notice hy appellee of the insufficiency of the hond". We are of opinion that the notice mentioned in the act means a legal notice in the form of a judicial document, and that it must emanate from the Court of original jurisdiction, and must he served hy a serving officer of that Court. The trial Court is divested of jurisdiction over a case, and the appellate court is invested, of jurisdiction over it, only after the appellant has filed the hond required hy law. Therefore the jurisprudence has heen that it is the province of the trial court to inquire vhether such a hond had heen furnished. 7 C. C. App. 490. In Dumas vs Mary 29 A., 808 the Court said; "The solvency and sufficiency of the surety on an appeal hond is peculiarly within the province of thé Court of original ¡jurisdiction". 122 La., 55; 27 A., 684. In State ex rel. Gill vs Tissot 34 A., 90 the Court Ssaid "The jurisprudence appears to he now firmly settled lthat it is only after a suspensive appeal has heen obtained fend perfected that the lower court ceases to have further ^jurisdiction over the case". Authorities : See also 142 La., 460; 32 A., 1170. Any other construction would lead to confusion and [135] uncertainty, and involve the appellate court into the examination of facts properly cognizable by the trial court. Appellee charges however that Act 112 of 1916 is viola-tive of Articled! and 32 of the Constitution and therefore unconstitutional in that the object of the law is not expressed in its title, and the law as amended is not published at length. The title of the Act is "To regulate the form and effect of bonds furnished in judicial proceedings, and to provide for the correction of errors, inaccuracies and omissions in such bonds, and for the supplemental of such bonds, and to provide for the addition or substitution of sureties on the original bonds and supplemental bonds, and to provide the procedure in each of such cases". It seems to us that the whole object of the law is fully set forth in the title. The act provides that no litigant shall take advantage of any defect of any kind in any bond furnished in a judicial proceeding before giving notice of the defect to the party furnishing the bond and giving him an opportunity to correct the defect, and provides for the procedures to be followed in each case, 142 La., 265 - and that object is fully set forth in the title. In State vs Hincy, 130 La., 620 it was said: "It is not necessary that the title of an act should be a complete index to every section of the act; and it is only necessary that it shall, in general terms, direct attention to the purposes of the law and point to one object; and if it has done this, there is no good ground for declaring the act unconstitutional". 48 A., 1094; 119 La., 290; 106 La., 345; 28 A., 199; 140 La., 511; 4 La. Digest p. 604, 609. Act 112 of 1916 has not for its object to revise or amend any particular law by reference to its title. It is an entirely new act modifying and repealing former laws and jurisprudence on the same subject. 9 A., 350; 11 A., 145; 14 A., 486. The motion to dismiss is therefore denied. December 9th. 1918.