Hand v. Harper

BRUNOT, J.

In this case judgment was rendered in the district court against plaintiffs. A devolutive appeal from the judgment was ordered returnable to the Supreme Court. The appeal bond was given, but in the body of the bond is a recital that the appeal is taken to the Court of Appeal, Second Circuit, instead of to the Supreme Court. The transcript was filed in this court timely, and defendant has moved to dismiss the appeal for the reason stated, and bases his motion upon the provisions of Act No. 112 of 1916, and upon the ground that plaintiffs’ counsel was served with the motion to dismiss, and that plaintiff did not, within the two days allowed by law, after service of the motion, furnish a new bond or correct the error in the bond originally given. Section 2 of Act No. 112 of 1916 provides that:

“Whenever any litigant in this State shall have furnished in connection with any judicial proceeding a bond and surety, and the said bond is insufficient in amount or incorrect by reason of errors or omissions therein, such litigant shall have the right to correct such insufficiency, error, or omission in the court of original jurisdiction, and to furnish new or additional bond and surety conditioned according to law; that any new bonds so furnished, and any supplemental or additional bond shall have the same effect as to principal and surety as if it had been furnished in the original bond and had been filed on the date of the filing of the original bond, and surety or sureties thereon shall be liable to the extent of their obligation solidarily with the sureties on the original bond; that the giving of such new, or such additional or supplemental bond shall not release or discharge the surety or sureties on the original bond who shall be solidarily liable up to the extent of their obligations with the surety or sureties on the new, the supplemental or additional bond.” (Italics by us.)

A mere reading of the statute shows that, if the bond given is insufficient or incorrect by reason of any error or omission therein, the insufficiency, error, or correction must be made in' the court of original jurisdiction. Section 3 of the act provides:

“That the right to furnish such new, or such supplemental or additional bond shall be exercised as follows: The party desiring to furnish such new, or such supplemental or additional bond shall have the right so to do at any time prior to judgment; if the adverse party, or any other party in interest shall cause to be served upon him through the proper officer for service, a notice that such adverse party, or the party in interest, claims that a bond furnished in the proceeding to which he is a party or in which he has an interest, is insufficient either as to form or substance, or of the solvency, or because of the pecuniary insuffieienéy of the surety or sureties thereon, the said par^y who has furnished such bond shall have the right within two days, exclusive of Sundays, legal holidays and half-holidays, to furnish the new bond, or supplemental bond or additional bond above referred to. If he shall fail to furnish same, the case shall then proceed without any diminution of the right of the adverse party, or other party in interest, to test the sufficiency of the bond furnished whether as to the amount of form thereof, or the solvency of the surety or sureties thereon.”

Section 8 of the act provides:

“That the foregoing provisions shall apply to bonds in cases of appeal” etc.

The motion to dismiss in this case presents a question over which the district court is vested by section 2 of Act No. 112 of 1916 with exclusive original jurisdiction. No proceeding has been had in that court to correct the error in the appeal bond to which our attention is directed by the motion, .and for that reason the motion to dismiss is overruled.