Hurry v. Hurry

81 So. 378, 144 La. 877, 1918 La. LEXIS 1754

• Court: Supreme Court of Louisiana
• Decided: November 4, 1918
• Docket: No. 23276
• Status: Published

Opinions

On Motion to Dismiss the Appeal.

O’NIEDL, J.

The defendant was granted an appeal from a judgment of divorce, on her furnishing bond for $100. She and R. J. Derbes signed one of the printed forms used for appeal bonds, and filed it in the record without having inserted, in the blank spaces left for the purpose, the name of the surety, the amount of the obligation, the date of the bond, or the date of the judgment appealed from. Except that the name R. J. Derbes is written below that of the principal, where a surety should sign, there is no indication in the bond itself of the capacity in which he signed the instrument. Annexed to the bond, however, is the oath of the surety and the oath of the appellant that he, R. J. Derbes, the surety on the bond, is worth, over and above all his debts and obligations, in assets that can be subjected to levy under execution, more than $100, the amount for which he bound himself. The oaths are dated and conform with the requirements of section 4 of Act No. 112 of 1916, p. 242.

The appellee filed in this court a motion to dismiss the appeal for want of a valid appeal bond. The appellant then filed a motion, .alleging that, pursuant to section 3 of Act No. 112 of 1916, she had filed a new appeal bond in the district court within two legal days after service of the motion to dismiss her appeal. She prayed for an order on the clerk of the district court to complete the record by sending up a copy of the new bond. The order was granted, and, in response, the clerk of the district court has furnished a copy of the new appeal bond. It is in due form, is for $100 and is signed by R. J. Derbes as surety.

[1] Whether we would have sustained an appeal on a bond as defective as is the one in this case, before the adoption of Act No. 112 of 1916, need not be decided now. The purpose of that act was, and its effect is, to save litigants from any serious consequence of errors or defects in bonds required in judicial proceedings. Section 8 declares' that the statute shall apply to appeal bonds, as well as to the other bonds mentioned, and generally to any and every kind of bond that may be required by law or btf any order of court in any judicial proceeding. And section 9 of the act declares that no appeal shall be dismissed on account of any error in the amount of the bond, or for any inaccuracy or omission in the bond, or for the insufficiency of any surety or sureties' on the bond, until the party who furnished the bond shall have failed to correct the error, inaccuracy, or omission, or to furnish a. supplemental or an additional bond or surety or sureties, as provided in the statute. The method provided in sections 2 and 3 of the statute, for correcting errors in bonds, or furnishing new or additional bonds or sureties, is that a litigant who has furnished an incorrect or insufficient bond shall have the right to correct the error, or furnish a new or additional bond, in the court of original jurisdiction, at any time within two legal days after being served with a notice that the adverse, party, or a pa-rty in interest, complains that the bond furnished is insufficient either in form or in substance. It is plain, therefore, that if an appellee or any party in interest has cause to complain of the form or sufficiency of an appeal bond, he should urge his complaint and have it served upon the appellant in the court of original jurisdiction, and allow the appellant the delay of two legal days for correcting the error or deficiency;, for it cannot be said that the appellant has failed to correct an error in his appeal bond until he has had the opportunity which the law allows him for correcting the error; and, unless, the appellant has failed in that respect, the appeal should not be dismissed for any error or insufficiency in the appeal bond. The question of validity or sufficiency of appeal bonds in suits between individuals is not a matter of public interest.

We observe that section 3 of the statute referred to provides that a litigant desiring to furnish a supplemental or an additional bond shall have the right to do so at any time prior to judgment; hence the inference that no right is given to furnish a supplemental or an additional bond after judgment. But, with regard to appeal bonds, that provision of the law cannot apply to the judgment appealed from.

The methods adopted in this case, for correcting the defects in the first appeal bond or furnishing a new bond, were not in accord with the provisions of Act No. 112 of 1916. The" appellee should have urged his complaint in the district court, should have had it served upon the appellant, and should have given the latter the opportunity to correct the errors or furnish a new bond within two legal days after service of the complaint. Under the circumstances, and by the terms of section 9 of Act No. 112 of 1916, the appeal cannot be dismissed on account of the errors or omissions complained of in the motion to dismiss.

The motion to dismiss the appeal is overruled.

PROYOSTY, J., absent on account of illness, takes no part.