Fritz v. Crujak , 5 Pelt. 830 ( 1921 )

ROBS» FRITZ ¥S JOHN CHUJAK

NO. 8387

CHARLES F. CLAIBORNE, JUB®.

On motion to dismiss.

Plaintiff filed suit in the twenty-ninth Judióla! District Court, Parish of Plaquemines. From a Judgnent against him, he took this appeal to this Court. Defendant moves to dismiss the appeal on the following two grounds:

lo "Because on the face of the said bond, which ms intended to be a bond in this cause, it is stated to be a bond in the Civil District Court for the Parish of Orleans, State of Louisiana; that nowhere on the face of the said bond is the proper title of the 29th. Judiei-ai. District Court, in and for the Parish of Plaquemines given, and that, on the hack of the said bond, it aspea*» to have been filed August 19th, 1921 in the "Civil District Court, for the Parish of Orleans", in no named or numbered case, and the same does not constitute the proper filing of said bond or the proper execution and confection of said bond*.

The Bond reads as follows:

"Know all men by these presents that ws Robert Frits, Conrad lieyer Jr., F. B. Freeland, as principal, and P. 13. Adema,, as surety, are held and firmly bound unto Frank J. Labrano, Clerk of the District Court fob the Parish of Plaquemines, his successors, executors, administrators and assigns, in the sum of two hundred dollars for the payment whereof we bind ourselves, our heirs, executors and administrators, firmly % these presents, dated in the City of New Orleans bn this ___ day of August in the year of Our Lord 1921.

Whereas the above bounden Robert Frits, C. JJayer Jr., and F. B. Freeland have this day filed a petition of appeal from a final judj^nont rendered ngninst Robert Fritz in tho milt of Robert Fritz vs John Cnijak, No. 2243 of tho 29th District Court for tho Pariah of Pla-quemines the_day of 1921 and signed on the . da.v of_192,1. I!ow the condition of the above obligation is such ttat the above bound Robert Fritz shall prosecute the said devolutive appeal and shall satisfy whatever judgment roay be rendored against him, or that the same stall be satisfied by the proceeds of his estate0 real or personals if lie be cant in the anneal; otherwise that the said P. Í . Adcr-m. stall >'■ liable in his place".

Cn^the back of the bond we read theca words:

"Filed Aug. 19, 1921 Signeds B« J. Lobrano !>y. Clerk".

This bond is upon a printed fon.i of the Civil '¡istrict Court for the Parish of Orleans, The complaint of the appellee is that the printed words:

"Civil District Court for the tari ah of Orleans", to bo found at the beginning and on the reverse of tho bond have not boon erased. This is immaterial, «'riting prevails over print. In other respects the bond is perfect and is the printed fora used in the Parish of Orleans. It is sufficiently identified with tho appeal to hold tho surety on the bond. 1 :j. 420; 10 A. 313; 40 A. 277,609 ; 35 A. 348; 119 La. tal; 107 La. 2,92; 111 La. 766; 125 La. 13 (30); 8 N. S. 127; 103 La. 518. Cíe vri.ll presume that the deputy Clerk who signed the filing is the proper officer of the Court in wliieh the bond was furnished.

II. The second .ground is as follows:

"Without waiving the foregoing, mover further avers that said bon'! in not • luted, raid the affidavits upon the back thereof ; re not good and sufficient as required by law. Ttat the said P. ; . Adema only signed and snore to the said bond on the 19th day of Awust 1921 while the affidavit of U;e attorneys for the principal of the suid bond was s.ram to t\<o days previously in the City of ¡íes Orleans as to r.n unnamed surety rnd which nomo they did. not then know. Therefore said affidavit was null and void and vías taken, accented, and filed by the Clerk in violation of 'lection 4 of Act 112 of 1916 and is not good and sufficient as the lav; •orescribes1’.

There is no levs? that requires bond ¿f> bo dated. «It . y i ^>ro^/ _ r~x? —* ' fr y' ¿s " o" /y—is r=-~- — makes 'no difference when it vías sRsied^befora it was filed. The data of the filing of the bond fixes the date of its signing. 2C A. 860; banning '.!. C. 370, 186.

iíothing shovit! when ■Vie>iiu signed the bond, Jie nay have oi/'iied it long before he snore to it, on the 19th.

.(hen plaintiff ó9 attorneys, on August 17th, swore that the surety on the bond rao worth the ."mount thereoff tide Court ¡•iust orosuHe that tho bond .hud already been signed \¶ Adema and that they had him in mud -"hon they snore that the surety on the bond vais good. The surety on the bond end plo.intiffs* attorneys having attested tl-o bond in the wanuor required by ‘leo. 4 of Act 112 of 1916, the .’lerk did not violeto tito law by filing tho bond.

. otion to dismiss

October 17th. 1921.