Rosenthal-Brown Fur Co. v. Jones-Frere Fur Co.

• Decision Date: 02 February 1925
• Docket Number: 26989
• Citation: 157 La. 887,103 So. 251
• Court: Louisiana Supreme Court
• Parties: ROSENTHAL-BROWN FUR CO. v. JONES-FRERE FUR CO. et al. In re JONES-FRERE FUR CO. et al

103 So. 251

157 La. 887

ROSENTHAL-BROWN FUR CO. v. JONES-FRERE FUR CO. et al.

In re JONES-FRERE FUR CO. et al

No. 26989

Supreme Court of Louisiana

February 2, 1925

Rehearing Denied March 2, 1925

Preliminary writs issued recalled, and application denied.

Pujo &amp Bell, of Lake Charles, for relator Orange-Cameron Land Co.

Donelson Caffery, Paul A. Sompayrac, and Anna C. McKay, all of New Orleans, for relators Jones-Frere Fur Co.

Cline &amp Plauche and Cullen R. Liskow, all of Lake Charles, for respondent Rosenthal-Brown Fur Co.

OPINION

ROGERS, J.

Relators are the defendants in an action brought by the Rosenthal-Brown Fur Company. The suit involves the trapping rights on a tract of, approximately, 30,000 acres of land situated in the parish of Cameron.

The case, on the application of the defendants, was tried by a jury, who found for the plaintiff as prayed for in its petition, and, in accordance therewith, judgment was entered recognizing plaintiff's exclusive right to trap fur-bearing animals on said land, enjoining defendants from interfering therewith and from trapping on said property.

Defendants, after having unsuccessfully applied for a new trial, moved for and obtained suspensive and devolutive appeals to this court, upon furnishing a bond of $ 150,000 for a suspensive appeal and a bond of $ 1,000 for a devolutive appeal.

Subsequently, on a motion to reduce the suspensive appeal bond, it was fixed by the court below at $ 125,000, and an alternative plea for the judicial sequestration of the property was refused.

The defendants thereupon applied to this court for writs of certiorari, prohibition, and mandamus to compel the district judge to further reduce the suspensive appeal bond to an amount not exceeding $ 50,000; or, in the alternative, that said judge be directed to order a judicial sequestration of the property involved. The case is before us upon a rule nisi issued upon said application.

Respondents urge that the present proceeding should be dismissed for the reason that no suspensive appeal bond was actually tendered or filed by relators during the 10 days provided by law after the signing of the judgment. The cases of State ex rel. Duhe v. Judge, 41 La.Ann. 1140, 6 So. 797, and Borah v. Dussel, 153 La. 54, 95 So. 399, are cited as furnishing authority for such action.

The cited cases are inapplicable for the reason that the applications for mandamus therein were filed long after the delays for suspensive appeals had expired. In this case, the application was made before the expiration of the 10 days. It was, therefore, filed in time, and the delay occasioned by the mandamus proceeding to compel the judge to grant the appeal cannot prejudice relators' rights. Ready v. City of New Orleans, 27 La.Ann. 169. The effect of relators' application for writs was to suspend the running of the delay allowed for the perfection of their suspensive appeal.

Relators allege that they are willing to furnish any reasonable bond for a suspensive appeal, but that any bond in excess of $ 50,000 would be purely ornamental and oppressive, as the net value of said trapping rights which the said Jones-Frere Fur Company will exercise during the remainder of the season will not exceed $ 20,000.

The respondent judge for answer to the rule nisi denies that the bond fixed is unreasonable; that any amount over $ 50,000 would be merely ornamental and oppressive; and that the trapping rights of the Jones-Frere Fur Company would not exceed $ 20,000. He avers that the bond fixed is just and reasonable.

Respondent shows that on the trial of the cause for a preliminary injunction, Mr. Frere, of the Jones-Frere Fur Company, estimated the number of rats that would be caught on the tract as 600,000 per season, and plaintiff testified that the catch would amount to 200,000 rats per season. At this hearing it was shown that the rat skins were worth 50 cents each. The court ordered the preliminary injunction to issue upon plaintiff furnishing bond of $ 80,000. Plaintiff did not give said bond, but appealed devolutively from the order therefor, and the writ did not issue.

Respondent further shows that on the trial on the merits defendants established the value of the rats to be 65 cents each, and on the motion to reduce the bond the testimony showed that the value of each rat had increased to 80 cents; that on the basis of 65 cents each the value of the rats, exclusive of the skins of other and more valuable animals trapped, would be approximately $ 400,000; that 26 of the 90 days of the trapping season had expired when the appeal was obtained, and that the value of the catch for the remainder of the season would be in excess of $ 250,000; that if one half of said amount be credited to plaintiff and the other half be credited to defendants, and taking into consideration that the bond should be one-half over the amount of the damage, the bond required of the defendants is just and reasonable.

It is shown by the record that plaintiff had 21 men, and that defendants had 60 men, employed in trapping the land.

The respondent judge shows that he had originally fixed the suspensive appeal bond at $ 150,000 because he thought the case would be "held up through part of the next trapping season," and that it was only upon the assurance that it could be reached and disposed of by the month of June that he reduced it to $ 125,000.

In the brief filed on behalf of the Orange-Cameron Land Company, a calculation is submitted showing that the net value of the pelts to be taken in the remaining 56 days of the trapping season could not exceed $ 35,840. This calculation is based upon a statement furnished by plaintiff on the trial of the motion to reduce the bond, showing that 21 of its trappers within the period from November 15 to December 10, 1924 reported a catch of 4,713 pelts. And the argument is made that upon the basis of a catch in the same ratio by the 60 employees of defendant, the figures for both crews would...