On Motion to Dismiss.
The opinion of the court was delivered by
MARK, J.Adolphe Yerret, claiming to be administrator of the suc- • cession of Auguste H. Yerret, by appointment of the Second District ■ Court of Orleans, brought suit against Robert Bonvillain, claiming to be ■ administrator of the same succession, by appointment of the parish • court of St. Mary, to arrest the sale of the property of the succession in New Orleans, by order of the parish court of St. Mary ; and to enjoin Bonvillain from interfering with Yerret in the performance of his duties as administrator. The injunction was granted; and John Calder was ■the surety of Yerret on the injunction-bond.
The day after this suit was brought, Robert Bonvillain, in his capacity as administrator, brought suit against Adolphe Yerret, in the same court, to have annulled and revoked the appointment of Yerret, on the grounds that the deceased had his domicile and resided, at the time of 'his death, in the parish of St. Mary: that his succession was opened and plaintiff was appointed'administrator by the parish court of St. Mary; and that the Second District Court was without jurisdiction to appoint an administrator.
The two cases were consolidated, and the injunction was perpetuated, and the petition of Bonvillain dismissed. Bonvillain appealed ‘by motion; and John Calder became his surety on the appeal-bond.
Appellee Yerret moves to dismiss the appeal for want of an appeal-bond, upon the ground that John Calder is not competent as surety on the appeal-bond, because, as surety on the injunction-bond, he is interested in maintaining the judgment which, as surety on the appeal-bond, he is interested in having reversed.
It is well settled that where the appeal is by motion, all the parties ■to the suit who are not appellants are appellees; and that where the *31•appeal is from, a judgment dissolving an injunction with damages, the surety on the injunction-bond is not competent as surety on the appeal-bond. See Dumas vs. Mary, 29 An. 808 ; Bauer vs. Lochte & Cordes, 30 An. 685 ; Bowman vs. Kaufman, 30 An. 1023.
But it is only where the execution of a money judgment is enjoined ■that the surety on the injunction-bond is a party to the suit. The words of the statute are : “ On the trial of injunctions, the surety on the bond .shall be considered a party plaintiff in the suit; and in case the injunction be dissolved, the court, in the same judgment, shall condemn the plaintiff and surety, jointly and severally, to pay to the defendant, interest at the rate of ten per cent per annum on the amount of the .judgment, and not more than twenty per cent as damages,” etc. Act of 1831, approved 25th March : re-enacted, reducing the rate of interest to eight per cent, Acts of 1855, sec. 7, p. 325 ; R. S. 1870, sec. 1754.
In such a case as this, there being no sum of money involved, no 'basis upon which interest and damages could be assessed at a rate per ■cent, if the injunction had been dissolved, no statutory damages could have been awarded; defendant would have been compelled to sue on the bond for such damages as he may have suffered. See Morgan vs. Briggs, 17 La. 183 ; Paten vs. Blaize, 19 La. 402 ; Wolden vs. City Bank, 2 Rob. 180 ; Jacobs vs. Augustin, 3 An. 476.
It will be the duty of this court, in the event that the judgment appealed from should prove to be erroneous, to reverse it; and Calder, •by enabling the defendant in injunction to appeal, incurs the risk of having that judgment reversed and the injunction dissolved, and of a .suit and recovery against him, on the injunction-bond, for damages.
The only question, however, which we have to deal with, on this motion, is as to the competency of Calder to bind himself as surety on the appeal-bond. Extraordinary as his position may be, the fact that he is surety for plaintiff on the injunction-bond does not make him a party to the suit nor disqualify him as surety for defendant on the .appeal-bond.
The motion to dismiss is therefore overruled.