Smith v. Phillips

On Motion to Dismiss the Appeal. There is a motion to dismiss this appeal on the ground that the bond is not signed by any one as surety. Although there are three persons named as sureties in the bond, it is signed only by the appellants. Immediately below their signatures is an affidavit, signed by the three persons named in the bond as sureties, in which affidavit they say "that the surety on the above bond is worth the amount of same over and above all legal exemptions." It can hardly be doubted that the signers of the affidavit, being named in the bond as the sureties, intended that their signatures should apply to the bond, as well as to the affidavit. It is therefore a matter of no importance that the signatures of the sureties on the bond are not in a more appropriate place. Iowa Cord Tire Co. v. Cheape, 162 La. 935, 111 So. 333. Even if this defect in the appeal bond was originally serious, the appellee's complaint about it comes too late. Act 112 of 1916, § 9, p. 241, declares that no appeal shall be dismissed "on account of any error in the amount of the bond, or for any inaccuracy or omission in the bond, or for the insufficiency of any surety, or sureties, on said bond," unless the appellant shall have failed to correct the error, inaccuracy or omission, or to furnish a supplemental or additional bond, or surety or sureties, within two days after the appellee has filed a motion therefor, in the court of original jurisdiction, as provided in the second and third sections of the act. No such motion was filed or opportunity given, in this case. We would have no authority, therefore, to dismiss this appeal, even if we believed that the sureties named in the bond were not bound as sureties by their signatures under their affidavit.

The motion to dismiss the appeal is overruled.

On the Merits.