Heirs of Bastable v. Succession of Denegre

22 La. Ann. 124

• Court: Supreme Court of Louisiana
• Decided: March 15, 1870
• Docket: No. 1792
• Status: Published

Opinions

Howell, J.

A motion is made to dismiss this appeal on two-grounds:

First — Because the bond is not for a sum exceeding by one-half tlic amount of the judgment, nor is it for an amount fixed by the judge.

The order for appeal directs the bond to be given according to law, and it is given for the sum of $32,000. The judgment is in favor of plaintiffs for the sum of $16,998 78, with legal interest on certain amounts respectively from different dates, running from July, 1856, to July, 1859, subject to various credits, at dates extending from November, 1851, to April, 1858, and decrees them to be the owners and entitled to possession of one-half of certain notes uncollected, amounting to $6152 49, and bearing eight per cent, interest from July, 1855, and some of which are in suit. The calculation which wo have made of theinterest on the principal and the payments included in the judgment, makes the amount to which plaintiffs are entitled under it about ninety dollars more than the bond. But considering the nature and dates of the notes to be delivered, and the fact that our calculation on the numerous debit and credit amounts may not be precisely correct, but may be erroneous, as we have found that of plaintiffs’ attorneys, to be, we are disposed to apply the maxim, “ De minimis,’1 etc., and hold the bond to be sufficient in amount. The more regular course, perhaps, would have been for the judge to estimate the value of the said notes, and the bond could have been given for a sum exceeding by one-half that ■amount, and the amount of the money portion of the claim. But the •■same end, we think, has been attained, the object being to have a bond in an amount sufficient in law to protect the appellees.

Second — The ground is, that the bond is signed by throe sureties, who limit their responsibility each for a particular portion of the bond, the three equaling the amount thereof, which appellees say is not legal, and they cite article 579 C. P. This article, as we construe it, -declares that the bond is given as surety that the appellant will prose•eute his appeal and satisfy whatever judgment is rendered against him, otherwise the surety on the bond will be liable in his place, and its object is to have a bond which will be ample security to the appellee, without reference specially to the number of persons who shall sign it as sureties, although the word “ surety” in it and other articles on the same subject is used in the singular number. Wo are not aware of any provision of law which prohibits more than one person to sign as surety, and for a less amount each than the bond. Wo are inclined to think the sureties may specify the amount for which they bind themselves respectively, but they can not change the nature of their obligation to that amount. The objection urged is one of convenience only, but not of such weight as to destroy the bond. It may sometimes be impossible for an appellee to procure one person good for the whole amount; and in other cases it may be as inconvenient for him to procure an unusual number, as for the appellee to pursue the different ones furnished. We are not to suppose that the appellant will increase the number in order to cause inconvenience to the appellee, but rather to obtain for him the security which the law requires, whether in one or more persons; the object being to furnish sufficient surety. We do not construe the law on this subject to confine an appellant to only one person as surety on his appeal bond.

It is therefore decreed that the motion bo set aside, at the costs of the movers.