Moss v. Hakenjos Piano Co. , 10 Teiss. 7 ( 1912 )

■His Honor

HORACE L. DUFOUR,

rendered the opinion and decree of the Court, as follows:

The plaintiff 'appeals'from a judgment discharging a rule taken by her on Louis P. Hakenjos to show cause why judgment -should not be rendered against him as surety on'the appeal bond for a sum of about $1,525.00.

After judgment in the main suit, Hakenjos signed as surety an appeal bond and the plaintiff, deeming the bond insufficient for a suspensive appeal, took a rule to show canse why execution should not issue on the judgment.

This rule was made absolute and application made to this ’Court for writs of mandamus and prohibition were refused.

Execution issued against the property of the debtor not having realized funds sufficient to pay the whole judgment, the present rule was taken to seek to hold the surety for the balance. . ' . .

In dismissing the rule, the trial Judge said:

‘ ‘ Considering the bond signed by the surety in this case was good and sufficient under the law for a de-. volutive appeal only, and it was so held by this Court and the Court of Appeal, and that it was. considered to be-and was treated as a devolutive appeal bond by mover in this Court and the Co.urt óf Appeal, the said rule to make the.surety liable for the amount of the judgment rendered herein on the ground that the surety had signed a suspensive appeal bond is discharged. ’ ’

, The conditions of a suspensive appeal bond are that the appellant shall prosecute his appeal and that he símil satisfy whatever judgment may be rendered against him on appeal; it stapds to reason that had the appeal been good as a suspensive one execution could not have issued. The appeal was not prosecuted and not perfected because of appellee’s hindrance.

The plaintiff' cannot be allowed to blow hot and cold as interest may suggest. " ' '

Opinion and decree, November 25th, 1912. Application for rehearing discontinued December 23rd, 1912.

■ The only costs for which the surety on a devolutive appeal bond is liable are those of the lower 'Court, and those of appeal; hence the judgment is correct. C. P., 578.

Judgment affirmed.