Lee v. Carroll
| Decision Date | 05 July 1962 |
| Docket Number | No. 659,659 |
| Citation | 143 So.2d 417 |
| Parties | Paul O. LEE, Plaintiff-Appellant, v. Egan N. CARROLL, Defendant-Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
Domengeaux & Wright, by Bob F. Wright, Lafayette, for plaintiff-appellant.
Bean & Rush, by Warren D. Rush, Lafayette, for defendant-appellee.
EN BANC.
Plaintiff secured a money judgment against defendant in the State of Mississippi. He filed suit in this state in the instant case to have the judgment recognized in Louisiana. After a trial on the merits, the district judge rejected plaintiff's demand and dismissed his suit. Plaintiff appealed to this Court from said judgment.
Counsel for defendant filed a motion to dismiss the appeal on the following grounds:
1. That the bond for security for costs filed by plaintiff-appellant in the above-captioned proceeding is defective for the following reasons, to-wit:
a. The bond is not signed by the principal, but rather by the alleged surety on the said bond.
b. That the bond for security for costs filed herein has not complied with Article 5122 of the LSA-Code of Civil Procedure in that it does not have an affidavit by the surety that he is worth over the amount for which he has bound himself in assets subject to execution over and above all of his other obligations and that the party furnishing the bond has not signed an affidavit to the effect that he is informed and believes that each surety on the bond is worth over the amount for which the surety has bound himself therein in assets subject to execution over and above all of the other obligations of the surety.
Article 5125 of the LSA-Code of Civil Procedure provides, in part, that:
'No appeal, order, judgment, writ, mandate, or process conditioned on the furnishing of security may be dismissed, set aside, or dissolved on the ground that the bond furnished is insufficient or invalid unless the party who furnished it is afforded an opportunity to furnish a new or supplemental bond, as provided in Articles 5124 and 5126.'
Article 5124 of the LSA-Code of Civil Procedure provides:
'Within four days, exclusive of legal hodidays, of the rendition of judgment holding the original bond insufficient or invalid, or at any time if no rule to test the original bond has been filed, the party furnishing it may correct any defects therein by furnishing a new or supplemental bond, with either the same surety if solvent, or a new or additional surety.
'The new or supplemental bond is retroactive to the date the original bond was furnished, and maintains in effect the order, judgment, writ, mandate, or process conditioned on the furnishing of security.
'The furnishing of a supplemental bond, or the furnishing of a new bond by a different surety, does not discharge or release the surety on the original bond; and the sureties on both are liable in solido to the extent of their respective obligations thereon and may be joined in an action on the bond.'
Article 5126 of the LSA-Code of Civil Procedure provides:
'The party furnishing a new or supplemental bond under the provisions of Article 5124 may correct an insufficiency or invalidity therein by furnishing a second new or supplemental bond...
To continue reading
Request your trial
-
Lee v. Carroll
...2541. The trial court dismissed the present suit, and Lee appeals. (We have previously overruled a motion to dismiss the appeal. La.App., 143 So.2d 417.) Carroll's defense is that the Mississippi judgment was obtained against him through fraud and ill practice. He claims that he intended to......
-
Wilks v. Allstate Ins. Co.
... ... 401, 46 So.2d 312; Succession of Lissa, 194 La. 328, 193 So. 663; Veith v. Villavaso, 170 La. 927, 129 So. 532; Louque v. Hercules Oil Co., 170 La. 355, 127 So. 866; Durel v. Buchanan, 147 La. 804, 86 So. 189; Emmco Insurance Co. v. Gauthier, La.App.Orl., 67 So.2d 499. See also Lee v. Carroll, La.App. 3 Cir., 143 So.2d 417 ... For the foregoing reasons, the plaintiffs-appellants' motion to dismiss the appeal is denied ... Motion to dismiss appeal denied ... --------------- ... 1 LSA-C.C.P. Art. 5125 provides: 'No appeal, order, judgment, writ, ... ...