Pasley v. McConnell

38 La. Ann. 470

• Court: Supreme Court of Louisiana
• Decided: May 15, 1886
• Docket: No. 9568
• Status: Published

Opinions

On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, O. J.

Tlie appellee claims that the appeal should be dismissed, because:

1. The defendants have joined in one motion and given one bond only;

2. The bond is not properly conditioned;

3. The bond is insufficient in amount;

4. The bond is not signed by tlie appellants, or either of them, or by attorney. ....

i.

The suit is for the recovery of certain real estate and the revenue thereof.

The property in dispute was sequestered and is still in the sheriff’s custody.

The recovery is asked contradictorily with the several defendants against whom, without any discrimination, judgment was rendered in plaintiff’s favor, without passing on his money demand, which was reserved.

There is but one petition and one prayer, one substantial defense although there be several answers, one judgment only was rendered.

It is not perceived why all the defendants, who are alike dissatisfied with the finding against them, should not, by one and the same motion, appeal from it and, in pursuance of the order of court allowing the appeal, furnish but one bond, for the amount prescribed.

The law does not provide that this shall not be done and the court is impotent to establish prohibitions where none has been imposed.

The bond is in terms sufficient to recover in case of affirmance of the judgment appealed from as well against the appellants as against their surety. Succession of Clark, 30 Ann. 801.

II and III.

It cannot be required that the bond be given under the provisions of art. 577, C. P., although the judgment appealed from decree the delivery of real estate. The reason is obvious : that the property is not in the possession of the defendants, but in the custody of the law. The sheriff holds it and collects its revenues for account of the party or parties who may be ultimately adjudged entitled thereto.

In such instances, it has been repeatedly held, that a bond for costs is sufficient. This is the more so, where the order allowing the appeal fixes the amount of the bond, the law being silent as to it, and the bond is furnished exactly in accordance with the terms of the order. 30 Ann. 801.

IV.

It is unnecessary that an appeal bond be signed by the appellant. The bond in this case ivas, however, signed for the appellants, whose names are written at foot thereof, by one of their counsel, who so attests expressly.

The motion to dismiss is overruled.