Fariss v. Swift , 156 La. 12 ( 1924 )

On Motion to Dismiss.

By THE COURT as.then constituted.

PROVOSTY, J.-

This is an attachment suit. There was judgment dismissing the main demand and dissolving the attachment with $250 damages. Defendant and appellee says that the dismissal of the main demand, carrying with it the dissolution of the attachment, constituted one judgment, while the condemnation to pay damages constituted another; that for appealing from these two judgments an order of appeal and a bond were necessary for each; that the amount of the appeal bond had to be fixed by the judge for the former whether the appeal was devolutive or suspensive, and also for the latter, if the appeal was devolutive; that plaintiff, having neither obtained an order nor furnished bond for appeal from the former judgment, there has been no appeal from it; and that, moreover the appeal in its entirety should be dismissed because the return day was not fixed by the judge but by the clerk of court.

The clerk may, in the absence of the judge from the parish, fix a return day. Act 75, p. 97, of 1S84. In the present case the judge was not absent, since the order of appeal is evidenced by an entry on the minutes of the court. However, our jurisprudence is well settled that an appellant cannot be made to suffer for any shortcomings of the order of appeal. In the case of Hays v. Mayer, 117 La. 1067, 42 South. 505, the appeal was maintained, although the judge had failed to fix a return day in his order of appeal. In State v. Augustus, 129 La. 617, 56 South. 551, no return day had been fixed. In maintain-, ing the appeal the court said:

“The duty of fixing the return day devolves exclusively upon the judge, and if he fixes a wrong return day, or fixes no return day at all, the fault is the judge’s, and is not imputable to the appellant, and he cannot be prejudiced thereby.”

The entry on the minutes showing the motion and the order for an appeal reads:

“On motion of attorney for plaintiff, an appeal, r both suspensive and devolutive, is hereby granted to said plaintiff, made returnable to the honorable Supreme Court of Louisiana, on September 1, 1920, upon his furnishing bond in the sum of $50 if devolutive, and according to law if suspensive.”

Plaintiff furnished bond in the sum of $450, conditioned as follows:

“Whereas, the above bounden W. W. Fariss has taken a suspensive and devolutive appeal from a certain final judgment rendered against him in this district court in and for the parish of St. Landry, in favor of Chas. H. Swift in suit No. 21441 the docket of said court, entitled W. W. Fariss v. Chas. H. Swift:

“Now, therefore, the condition of the above obligation is such, that if said W. W. Fariss shall prosecute this suspensive and devolutive appeal, and shall satisfy whatever judgment may be rendered against him or if the same shall be satisfied by the proceeds of the sale of his estate.” etc.

The appeal was moved for and granted as to the whole case, including that part of it consisting in the main demand and the attachment; and the amount of the bond was fixed for the case as a whole. Therefore the bond is unquestionably answerable for any judgment that may be rendered on the appeal; and, it being sufficient in amount for that purpose, defendant cannot possibly suffer, and therefore has no ground of complaint.

The motion to dismiss is denied.