Plaintiff instituted in the civil district court for the parish of Orleans a petitory action against defendant in possession, and prayed for judgment recognizing him as owner of a certain lot of ground and improvements thereon, located in the Seventh district of the city of New Orleans, and that defendant be ordered to deliver to him possession of said property.
On July 7, 1925, judgment was rendered in favor of plaintiff as prayed for, and on July 10, 1925, defendant obtained an order for a suspensive, and, in the alternative, a devolutive appeal from said judgment to this court upon appellant furnishing bond with surety, conditioned as the law directs, in the full sum of $1,000.
On July 17, 1925, defendant executed and filed in the civil district court an appeal bond in the sum of $1,000 with surety, conditioned:
"That appellant shall prosecute his appeal and shall satisfy whatever judgment may be rendered against him; or that the same shall be satisfied by the proceeds of his estate, real or personal, if he be cast in the appeal; otherwise that the said Hiddleston Kenner (surety) shall be liable in his place."
Thereupon, the appellee, plaintiff in the petitory action, filed a rule against defendant, alleging that the appeal bond was defective, illegal, null, and void, as it had not been stipulated in said bond that, in the *Page 795 event appellant should be cast on the appeal, he would pay whatever damage appellee might have suffered in the way of loss of rents and revenues derived from the property, while the same was in the possession of the defendant during the pendency of the appeal.
Respondent judge, after hearing had, made said rule absolute, and ordered the defendant, appellant, "to furnish within ten days from date a new appeal bond conditioned according to articles 575 and 577 of the Code of Practice, guaranteeing the payment by defendant to plaintiff for any liability, damage, injury, or deterioration which may be caused to the estate of the appellee by defendant while in possession of the same."
The judgment in this case decrees the delivery of real estate, and in such cases article 577 of the Code of Practice provides that —
"Security shall only be required to an amount exceeding by one-half the estimative value of the revenue to be derived from such real estate, pending the suit, and for such further amount as the judge may determine as surety for any injury, or deterioration which may be caused to the estate by the appellant, while in possession of the same."
Article 579 of the Code of Practice declares that —
"In the appeal bond, it must be set forth in substance, that it is given as surety that the appellant shall prosecute his appeal, and that he shall satisfy whatever judgment may be rendered against him, or that the same shall be satisfied by the proceeds of the sale of his estate, real or personal, if he be cast in his appeal, otherwise that the surety shall be liable in his place."
An appellant is not required to stipulate, in an appeal bond given in cases where the judgment decrees the delivery of real estate, that he will satisfy such damages as the plaintiff may have sustained during the pendency of the appeal.
Article 577 of the Code of Practice is intended as controlling merely as a standard *Page 796 or rule for fixing the amount of the appeal bond to be given in such cases; the terms and conditions of the bond being regulated by article 579 of the Code of Practice.
Article 575 of the Code of Practice has no relevancy to the case at bar, as said article relates exclusively to the amount of the bond in suspensive appeals from money judgments.
The complaint of the appellee is not as to the amount of the appeal bond, but as to its conditions.
It is to be presumed that respondent judge complied with the law in fixing the amount of the bond, and, as said bond is conditioned according to law, the rule of appellee should have been discharged and dismissed in the lower court; said bond being sufficient as to the conditions required by law.
It is therefore ordered that the order of the district judge requiring the furnishing of a new bond be annulled, at the cost of the respondent Darden.