On Motion to Dismiss.
The opinion of the court was delivered by
Manning, C. J.The plaintiff recovered judgment against the defendants in solido for fifteen thousand dollars.
All the defendants except Pierce moved for a suspensive appeal which was granted, and they gave bond with sureties. The plaintiff took a rule on Pierce to shew cause why execution should not issue against him, and another rule on the other defendants to test the solvency and sufficiency of their sureties.
On the suggestion that Pierce’s name had been omitted from the motion of appeal through a clerical error, he was allowed a suspensive appeal nunc pro tunc, and the rule upon him was discharged. After hearing testimony touching the sufficiency of the security, given by the other defendants, the rule against them was also discharged. The plaintiff appeals from these judgments, and the defendants move to dismiss on the grounds that the judgments are but interlocutory orders which do not work irreparable injury; and that no appeal lies from such *477judgments, because the lower court is invested with the sole authority to pass finally upon the sufficiency of securities to appeal-bonds.
The law regulating suspensive appeals has this condition attached;— provided that the party furnishing the security shall prove his solvency to the satisfaction of the court whenever it is questioned by any party interested in the appeal. Sess. Acts 1876, p. 49 amending art. 575 Code Prac. The defendants regard this as conclusive cf the question, and since they have proved the solvency of their sureties to the satisfaction of the court, they insist that is an end of the matter.
But the same language may be employed in relation to any demand made before a court. If a person shall prove his demand .to the satisfaction of the court he shall have judgment therefor. This does not imply that an. appeal will not lie from a judgment rendered on such demand, if it be for an appealable sum. Suppose upon a rule to test the sufficiency of an appeal-bond the proof is beyond cavil in its favour, and the lower judge arbitrarily rejects the bond and execution is about to •issue. Would not this court protect the appellant from the irreparable iájury about to be inflicted on him, if he should invoke the writs of mandamus and prohibition ? It would be peculiarly our province to do so under the new Constitution, art. 90.
The question seems never to have been directly presented before, and our examination of it has been unnecessarily prolonged by citations . of decisions that are wholly irrelevant. '
In Perilliat v. Fernandez, 16 Annual, 192, where the reporter’s syllabus, is altogether wrong, there was a rule below such as this and judgment thereupon, but no appeal was taken from that judgment. When the principal appeal came up, the appellee moved here to dismiss it so far as it was suspensive, and the court said as there was no appeal taken from the judgment on the rule, they would not review it under the appeal previously granted. This implies that if the appellant there had done what the plaintiff here has, the court would have reviewed it.
Later, the court refused to dismiss on the ground that the sureties to the appeal-bond are not good, because the evidence touching the solvency was not properly before them, Generes v. Eluker, 24 Annual, 829, and we refused a similar motion for the reason that no objection to the sufficiency of the bond was made in the lower court. Edwards’ case, 29 Annual, 597.
If we should refuse this appeal, and the judgment on the principal appeal is affirmed, and upon execution issuing against the sureties it should turn out that they are what the plaintiff’s brief describes them, irreparable injury would be done, for a judgment for fifteen thousand dollars could not be made out of “ two certificated bankrupts, two nonresidents, one tutor plastered with a minor’s mortgage exceeding three *478times his entire estate, one impecunious husband oppressed by his wife’s sworn claim for over fifty-eight thousand dollars, and a number of stockholders, bondholders, and possessors of cash and other intangible, invisible objects.”
The correctness of this description of the sureties is not a matter of present concern. The right to have the judgment of the lower court -reviewed, upon a matter so vital to the plaintiff as the solvency of the-securities to the appeal-bond, is the question we now have to settle, and we are very clearly of opinion that such right exists.
The motion to dismiss is refused.
On appeal from the decree of the lower court, discharging rule of' plaintiff to test the solvency of sureties on appeal-bond, the opinion of the court was delivered by
DeBlanc, J.Defendants suspensively appealed from a judgment rendered against them, and gave bond for $28,500, with twelve different sureties, whose solvency was tested in the lower court in a rule taken by plaintiff, and which was there tried and discharged.
From the decree discharging that rule, plaintiff appealed, and defendants moved to dismiss her appeal. We refused their motion, and they now contend that the two appeals — their own and plaintiff’s — must be tried in their regular order on the docket, as two distinct cases.
What was the real object of the discharged rule ? It was to ascertain whether defendants had complied with those legal requirements,, without which no appeal can ascend to and reach this jurisdiction, and it is clear that — before we can consider and pass upon what purports to be an appeal — we are bound to hear those of the interested parties who regularly deny its very existence.
The judgment appealed from by defendants is — in amount — for $15,000, and — to perfect their appeal — they had to give, in favor of the clerk, an obligation for $22,500, with good and solvent sureties, residing within the jurisdiction of the court by which the judgment was rendered, and this — according to plaintiff’s averments — they did not do; but the lower court thought and held otherwise.
As to the solvency and qualifications of the sureties furnished by defendants, what are the facts ? Two of them, Keep for $2500, and Webster for $1000, were called as witnesses, and testified that they do not reside within the jurisdiction of the court which rendered the judgment.
It matters not that they have inferentialiy submitted themselves to the proper jurisdiction — for we ourselves held “that a judicial tribunal has no more power to accept as surety on an appeal-bond a person not *479residing within its jurisdiction, than it would have to accept as such a person not having in the State property liable to seizure.”
Acts of 1876, p. 49, 50 ; 30 A. 584-5.
Defendants’ counsel argue that, according to the last paragraph of Act 67 of 1876, a surety may render himself amenable to the process of a court beyond the territory of his residence. Of this there is no-doubt; but that act, which merely amends art. 3042 of the Oivil Code, provides — as did and does the amended article — that, unless under specified circumstances and as regards administrators, executors, tutors, curators and fiduciaries, the surety’s domicile must be in the jurisdiction of the court where it is to be given.
0. 0. 3042 (3011); Act of 1876, p. 109.
The qualifications of the surety on the bond of one who takes a. suspensive appeal from a judgment rendered for a specific sum, are-fixed by the 575th article of the Oode of Practice and Act No. 24 of the-legislature of 1876, and though one may accept, no one can be compelled to accept as surety any other but one who has the qualifications required' by said article and act, and — therefore—the objections urged against-Webster and Keep must prevail.
The other sureties wore also sworn, and examined as to their-solvency.
John I. Adams, who obligated himself for one thousand dollars, said : that his firm is in bankruptcy, that he is indebted for nearly half a million of dollars, and that he did not consider that he is worth the amount of his obligation. The written statement which accompanies his declaration does in no way contradict it, and — when he signed the bond and testified — he was absolutely insolvent.
McOutcheon, another surety for $2500, declared that he owned, in-the Louisiana National Bank, one hundred shares worth $9000 — in the Union National Bank, fifty shares worth each $85, and insurance stock worth about $1000, and that he is not indebted.
It was shown — by the cashier of the Louisiana National Bank, and by the record of Mrs. McOutcheon’s judgment against her husband, that she owns the one hundred shares of that bank, which he referred to as belonging to him. Non constat, we are told by defendants’ counsel, that the husband and wife had not each an equal amount of that stock. If such had been the fact, they would not have failed to prove it.
It appears that, on the 13th of May 1879, a general mortgage was recorded against him, to secure the re-imbursement of $58,915 82 alleged to be due by him to his wife. He said that he received that amount in notes which he still holds and in bonds which he sold. That he has, in the house where he lives, the proceeds of that sale. As to the price-which he received for those bonds, he did not tell.
*480He was sued by his wife, who claimed a separation, of property, on •the sworn averment that she was entitled to it, on account of the disorder of his affairs, but she — thereafter—discontinued her demand for a separation of property, and merely resumed the administration of her paraphernal effects, and — among these and in the words of the decree rendered in her favor — “ of one hundred shares now standing in his name ■ on the books of the Louisiana National Bank.”
It was incumbent on defendants to prove the contested solvency of that surety, and they have failed to do it:
Is Staub solvent? He bound himself for one thousand dollars. He is separated in property from his wife. He owns household and kitchen furniture — the best part of which he valued at 175, a watch and chain, dockets, gold buttons and several other little articles, which — he supposes — cost him between two hundred and fifty to three hundred dollars. He also has an interest in a commercial business, which — he again supposes — is worth about .1600, and twenty shares of mining stock in Nevada. He is the holder of notes, but how many, by whom due and for what amount, he was not asked and did not tell. He is the tutor of Julius H. Cohen, and — as such — gave a bond for 18000, which stands •recorded against him. He said he owes nothing to the minor; that his wife is indebted to him, and for only §465. If so, why did he give that bond, and — by his own act — contribute to reduce or rather destroy an ■already limited solvency, which — even without that additional liability— was not equal to his obligation ?
The evidence leaves no doubt that at least five of the sureties who ■•signed the bond, and — collectively—for eight thousand dollars — are not ■such as the law requires, and that said bond is insufficient for a sus-pensive appeal. Por these reasons,
It is ordered, adjudged and decreed that the judgment rendered on the rule filed by plaintiff on the 16th of September 1879, is avoided and reversed, said rule made absolute at defendants’ costs in both courts, and the order granted for the suspensive appeal therein referred to set ..aside and annulled.