State ex rel. Simonds v. Judge of the Seventh District Court

Wi'ly, J.

The relator took a suspensive appeal from the judgment recovered against him by Bogart & Oakley The appeal was subsequently set aside on motion in the court a qua on the ground that the bond was not such as the law requires, the surety not being good and solvent.

The relator then applied for and obtained a writ of prohibition. restraining the Judge, the Sheriff and Bogart-& Oakley from executing said judgment.

The District Judge answered, averring that he had jurisdiction to entertain ihé motion and determine the sufficiency of the appeal bond; *179that on the trial thereof the solvency of the surety on the bond was not satisfactorily established; that the appellant had not complied with the condition npon which the suspensive appeal was granted, that is to say, he had not given a good and solvent surety on the bond.

The District Judge had the authority to test the solvency of the surety on the appeal bond.

We have carefully examined the evidence on which the Judge acted in determining the surety insufficient, and are of opinion that he did not err.

The certificate of mortgages adduced on the trial showed that the surety, J". Morgan Hall, is not good and solvent, his property being mortgaged for amounts largely exceeding the value thereof.

The relator failed, in our opinion, to establish that he had given such solvent security on his appeal bond as the law requires.

It is therefore ordered that the writ of prohibition herein granted be set aside and the petition be dismissed at the costs of the relator.