Vinoy Park Hotel Co. v. Fumigation Service, Inc.

151 So. 639, 178 La. 419, 1933 La. LEXIS 1864

Opinion

O’NIELL, Chief Justice.

This is a suspensive appeal from a judgment rendered against the defendant, appellant, for $10,000, with legal interest from judicial demand. The surety on the appeal bond for $16,000 is Lloyds Insurance Company of America. The plaintiff has filed a motion to have the ease remanded to the civil district court to test the solvency of the surety on the appeal bond, because Lloyds Insurance Company of America has been taken over by the superintendent of insurance of the state of New York and a receiver for the company has been appointed in Louisiana since this appeal was taken.

When an appellee moves to have the appeal dismissed, or to have the case remanded to test the solvency of the surety on the appeal bond, on the ground that the surety has become insolvent since the appeal was taken, and furnishes prima facie proof of the alleged insolvency, the case must be remanded to the court that rendered the judgment, to test the solvency of the surety, and to afford the appellant an opportunity to furnish a new bond if the surety has become insolvent since the bond was given. Gray, MacMurdo & Co. v. Lowe & Pattison et al., 9 La. Ann. 478; Irish Levy Electric Co. v. Moss, 176 La. 882, 147 So. 22; Western Union Telegraph Co. v. Dampskibs Aktieselskabet, 176 La. 895, 147 So. 26; Harnischfeger Sales Corporation v. Sternberg Co., 177 La. 373, 148 So. 440.

This case is ordered remanded to the civil district court, division D, to test the solvency of the surety on the appeal bond and to afford the appellant an opportunity to prevent a dismissal of the appeal, by furnishing a new bond, with good and solvent surety, within a reasonable time to be fixed by the judge, if the surety on the bond heretofore given has become insolvent, or is in liquidation, or in the hands of a receiver.