Mercantile Adjustment Agency v. Fabacher , 1928 La. App. LEXIS 243 ( 1928 )

ON MOTION TO DISMISS APPEAL.

CLAIBORNE, J.

Judgment having been rendered on February 23, 1928, against the defendant, Edward B. Fabacher, he has appealed.

The plaintiff and appellee then took a rule in the trial court upon the appellant Fabacher to dismiss his appeal upon the ground that the surety on the appeal bond did not possess the qualifications required by law.

On April’ 10th the rule was made absolute and defendant’s appeal was dismissed.

On April 20, 1928, the defendant-appellant obtained a suspensive appeal from said judgment dismissing his appeal.

In this Court, on May 2, 1928, the plaintiff-appellee filed a motion to dismiss the appeal upon the ground "that where an appeal has been dismissed for want of a solvent surety on the appeal bond, the (proper remedy is not by suspensive appeal from the judgment dismissing the appeal, but the proper remedy is by a writ of prohibition.”

The motion is correctly made and must prevail.

In the case of Borie vs. King, 3 La. App. 658, this Court held:

“No appeal will lie from a judgment dismissing a suspensive appeal upon the ground that the surety is not such as the law requires. The proper remedy is by prohibition.” State of La., et al. vs. Judge of the Fifth Dist. Court, 21 La. Ann. 113; Sampson vs. Gillis, et al., 22 La. Ann. 591; State, et al. vs. Rightor, 36 La. Ann. 200; Reynolds vs. Egan, 122 La. 47, 47 So. 371.