SCOTTSDALE INS. CO.

v.

GRANADA INS. CO.

On Application for Rehearing.

MONROE, J.

In general, the right of the party cast to suspend, by appeal, the execution of the judgment rendered against him, depends upon his applying for the appeal within 10 days, not including Sundays, and giving bond, with surety, in an amount exceeding by one-half that for which the judgment has been rendered, all as required by law. Where the judgment decrees the delivery of movable property, other than money, the amount-of the bond is determined by the judge with reference to the value of *55the property; and where immovable property is ordered to be delivered the “estimative” revenue and possible injury or deterioration, pending the appeal, is also considered. Code Prac. arts. 575, 576, 577. In some cases (e. g., where the judgment rejects a claim against a fund already in court, or dissolves an injunction, for the issuance of which 'a bond had been given) a suspensive appeal may be granted on a bond for costs, the amount of which is to be fixed by the judge. Code Prac. art. 578; Succession of Edwards, 34 La. Ann. 216; State ex rel. Carlon v. Judge, 28 La. Ann. 877. Upon the other hand, there are cases, specially excepted from the general rule, in which the judgments are to be provisionally executed notwithstanding any appeals that may be taken — such as those by which tutors, curators, administrators, etc., are appointed or removed, or by which interdictions are pronounced. Code Prac. art. 1059; Civ. Code 1S38, art. 395.

In any case in which an appeal may be applied for, the order of appeal becomes effective only if, and when, the conditions precedent and subsequent, upon which it may legally be granted, exist or are complied with; and it is for the judge to whom the application is made to determine, before granting, or later, when his ruling is invoked, whether his order can, or has, become effective, and whether, if effective, it operates to suspend the execution of the judgment appealed from, or only devolutively. If he refuses, in the first instance, to allow a suspensive appeal from a judgment, the execution of which cannot, under the law, be suspended in that way, or because the delay within which such appeal may be taken from the judgment rendered has expired, or if, having improvidently allowed a ‘ suspensive appeal, in either of the cases mentioned, he rescinds his order, or holds the appeal to b merely devolutive, an appeal from the ruling so made cannot operate to suspend the execution of the original judgment is sought to be appealed from, since it would be idle to say that the execution of a judgment which cannot be suspended by direct appeal can be suspended by appeal from a subse-quest ruling declaring the law to that effect. In such cases no order allowing a sus-pensive appeal can take effect, because of the nonexistence of the conditions precedent, and hence the jurisdiction of the trial court to proceed with the enforcement of the judgment rendered by it cannot be devested by such order. And the rule is the same when the failure of the attempted appeal is attributable to the noneompliance by the axspel-lant with the conditions subsequent which the law and the order of appeal impose on him. Those conditions are that he shall, within the delay prescribed by law, furnish the bond so prescribed. If the bond be not furnished' within that delay, or if the bond as furnished be not that which the law requires, the conditions are not complied with, the order of appeal does not become effective, the jurisdiction of the trial court to proceed with the enforcement of its judgment is not devested, and the jurisdiction of the appellate court does not attach. The appellant may, however, as in this case, assert that he has complied with the required conditions ; that the judgment of the trial court, decreeing that he has not done so and dismissing his appeal, is erroneous; and that he is, therefore, entitled to an appeal from such judgment, which will operate to suspend the execution of the judgment originally appealed from. The argument in support of this proposition seems to be that the judgment dismissing the appeal is a final judgment, or, if interlocutory, that it works, or may work irreparable injury, and that a sus-pensive appeal will lie from any judgment of that character. This argument, predicated upon one general rule relating to appeals, ignores other rules, general and special; establishing the conditions upon which all appeals are allowed, and upon which the ex*57ecution of judgments may be stayed by appeals, and would lead to tbe conclusion that tbe party east, in any given case, may appeal from a judgment dismissing an appeal previously allowed conditionally, and not perfected, and by a succession of appeals from sucb judgments of dismissal obtain tbe same delay as tbougb tbe original appeal bad been perfected and sustained. More than tbis: Tbe logical result would be that the execution of any judgment, whether in a case in which, under tbe law, tbe judgment is to be provisionally executed notwithstanding tbe appeal, in which tbe appeal was not applied for within tbe legal delay, in which no bond has been filed, or in which the bond was not filed in time, or was not such bond as the law requires, could be suspended by appeal, upon appellant’s allegation of the existence, or of his compliance with the required conditions, or, in fact, upon his mere allegation of grievance, and upon a bond differently conditioned and given at a different time than as required by law. In the case now under consideration, for instance, it appears that the original judgment, including interest, amounted to $3,506.39, and was signed on June 26th (of this year), and it was necessary, in order to stay execution, that the appeal should be allowed and a bond, conditioned to secure the payment of the judgment appealed from (in the event of its affirmance), for one-half over and above the amount stated, filed within 10 days, not including Sundays, from the date of the judgment. The appellant applied for and obtained the order of appeal within the legal delay, and filed a bond, otherwise conditioned according to law (as we assume), but insufficient in amount and the appeal was dismissed on July 27th, whereupon appellant immediately tools the present appeal and gave bond for an amount sufficient to have sustained the original appeal; but that was long after the expiration of the delay allowed for the giving of a bond to sustain the original appeal, and, moreover, the bond so given must, if there was any attempt to comply with the law, have been conditioned to secure the judgment appealed from, rather than the original judgment, so that, as matters stand, there is now no bond purporting to secure the pavement of the original judgment, and certainly none that was filed within the delay allowed for the filing of a bond to stay its' execution. Our understanding of the law applicable to the situation is that, to suspend the execution of a particular judgment by appeal, the appeal must be taken, according to law, from that judgment; that an appeal from a judgment dismissing an appeal previously taken is not an appeal from the judgment originally appealed from, and cannot suspend its execution; and that, whilst one may, if he so elect, appeal from a judgment dismissing an appeal, his proper remedy, when he desires a review by the appellate court of such judgment, and wishes in the meanwhile to preserve the status quo, is by way of the writ of prohibition. This view of the matter is sustained by the authorities cited in the opinion heretofore handed down by the Chief Justice.

Referring a little more particularly to the cases relied on by the appellant we find that in Perrilliat v. Fernandez, 16 La. Ann. 192, the appellee moved, in this court to dismiss the appeal on the ground that the bond was insufficient for a suspensive appeal. This court found that the amount of the bond had been fixed by the court below, and that it was, therefore, good for a devolutive, if not for a suspensive appeal, and, declining to express any opinion upon the latter question, said:

“It is not the practice of this court to decree a qualified dismissal of an appeal, such as this rule calls for. Such a decree would be tantamount to an order that execution issue notwithstanding, and pending, the appeal. It is well settled that an application for an order of that sort must be addressed to the court which has rendered the judgment, and not the appellate court. Stanton v. Parker, 2 Rob. 551.

*59Indeed,, the rule states, and the record shows,, that an application for execution, by rule to show cause, was made to the court below, after this appeal was taken, upon which application there was judgment. Prom that judgment there was no appeal taken, and we cannot review it, under the appeal previously granted. Bayon v. Mayor & Al., 9 La. 579.”

It is evident that, in the case thus cited, the rule taken in the district court to dismiss an appeal which (necessarily) had already been allowed was itself dismissed. It is equally evident that the proceedings and judgment on the rule were not included in the appeal previously taken, and hence were not before the appellate court for review. That the plaintiff in the rule might have taken an appeal from the judgment dismissing it we see no reason to doubt, but such an appeal would have suspended nothing, and whether it would have been considered in this court before the appeal on the merits, .and hence whether it would have done him any good, is another question. If, therefore, as a fact the bond of which he complained was insufficient to sustain a suspensive appeal, his effective remedy for the correction of the error of the trial judge in holding to the contrary would have been some such proceeding (assuming that it was then allowed) as the one to which the present relator has resorted. The Constitutions of 1812, 1845, and 1852 (the latter being then in force), however, contained no article corresponding to article 94 of the present Constitution, and this court, as then authorized, issued the remedial writs only in aid of its appellate jurisdiction. It was to remedy that defect in the fundamental law, and to afford just such relief as the relatrix now seeks, that this court was vested (by the present Constitution and that which preceded) with general supervisory jurisdiction.

In the case of Vredenburgh v. Behan et al., 32 La. Ann. 475, the district court rendered judgment against several defendants for a considerable sum. They appealed, and plaintiff ruled them to show cause why the appeal should not be dismissed, and why execution should not issue, on the ground that the sureties were not good. The district court gave judgments dismissing the rules, and plaintiffs in rules appealed. Defendants in rules (appellees) moved to dismiss the appeals on the grounds that the judgments were but interlocutory orders, which worked no irreparable injury, and that the district court is vested with sole authority to pass finally upon the sufficiency of sureties on appeal bonds. This court held that the appeal was well taken, and, as the case was decided in the month of March, it is quite likely that the remedy was as efficacious as any other would have been. There is, however, not the slightest intimation in the opinion that the appellant might not have resorted to a more speedy remedy.

In the case of State ex rel. Cieutat v. Judge, 32 La. Ann. 815, it appears that judgment was rendered against relator, by the district court (for the Fourth judicial district), and that an order of appeal was obtained therefrom more than 10 days after the adjournment of the court; that is to say, after the expiration of the legal delay. He was thereafter, apparently, threatened with the execution of the judgment, and he applied to this court for a writ of prohibition. In passing upon the application, Bermudez, C. J., as the organ of the court, said, in the first plact, that it did not appear, on the face of the papéis, that the case was appealable to this court, and, further, as follows:

“His petition does not set forth with sufficient fullness the circumstances in which he may be placed, and which, if expressed, might entitle him to protection. The court cannot supply the deficiency caused by unaverred facts. I-Ie does not aver that the district judge has rescinded the order made by him for a sus-pensive appeal and directed execution to issue, which may be the case either because the appeal was asked too late, or because the case is not appealable, or because the bond is not sufficient, or because the surety is not good and solvent, as the law requires. Had the judge

*61so acted, and the relator felt aggrieved, his remedy would have been a suspensive appeal from the rescinding order, and, in case of refusal on the part of the judge to grant the same, the relator could have asked us for a mandamus, coupled with a writ of prohibition, in a proper showing. State ex rel. Johnson v. Judge, 21 La. Ann. 114; State ex rel. Gausson v. Judge, 21 La. Ann. 44; Vredenburgh v. Behan et al., 32 La. Ann. 475. In the absence of any averment of the kind, we are left to infer that the execution alleged was issued by the clerk, at the instance of the judgment creditor. In such a case, the relator would be entitled to an injunction, on proper grounds, to arrest the process. His right would be to apply for it to the district judge; but he does not allege that he has taken any such steps before the lower court, and that any petition of the sort was declined, and that, in consequence, he will suffer injury from the execution of the writ charged with having been illegally issued. He asks us to exercise an original jurisdiction, which we have not, and which pertains exclusively to the lower court; that is, to arrest an execution said to have been illegally issued.”

The ease presented for decision, therefore, was that, notwithstanding that defendant had been allowed a suspensive appeal (which, for aught that appeared, had never been dismissed), the clerk of the district court, acting under the direction of the plaintiff, had issued execution on the judgment appealed from, and the point actually decided was that relator’s remedy was, not by prohibition in this court, but by injunction in the district court. It was not decided (and it could not have been, since the opinion of the court states that the question was not presented) that a suspensive appeal will lie from a judgment dismissing a suspensive appeal. It is true that such a case is hypothetically stated, and that it is hypothetically disposed of, in the manner above referred to; but cases thus stated by way of illustration, and having no necessary bearing upon the case actually decided, do not make jurisprudence. They constitute merely part of the reasoning of the organ of the court, and, where they are irrelevant to or inconsistent with the reasons upon which the decision is based, are in no proper sense binding upon the court.

The case of State ex rel. Gill v. Tissot, Judge, 34 La. Ann. 90, is rather more to' the point. In that case a judgment of ejection had been rendered against relator, and he had obtained an order for a suspensive appeal therefrom, and had given bond; but the appeal had been dismissed and execution ordered after the hearing of a rule in which it was found that the bond given was not such as the law required. Thereupon relator applied for a suspensive appeal from the judgment on the rule, and insisted that he was entitled to it on a bond for costs; but the judge, though willing to grant the appeal, Was of opinion that a bond for a larger amount should be given, so the relator applied to this court for a writ of prohibition, to restrain the execution of the judgment, and for a mandamus, to compel the granting of the appeal, on a bond for costs. Both writs were denied; but it is said in the opinion (among other things):

“No one disputes the right of the relator to a suspensive appeal. The contention relates to the character of the bond. * * * Had the original judgment been one for a sum of money, a suspensive appeal from a decree on a rule for its execution could not have been granted, unless on a bond sufficient to arrest the enforcement of that judgment. Whether the party cast would not have been entitled to a different remedy it is unnecessary to say, for it may well be that he might be unwilling to apply for a suspensive appeal from the order of execution. Were it otherwise, a party cast by a money judgment could, after furnishing an insufficient bond, or worthless sureties, obtain a suspensive appeal from the order for execution on a mere bond for costs, and in that mode suspend the original judgment. * * * To suspend the decree for execution is to suspend the judgment on the merits. That which the law demands, in order to stay the first judgment, it likewise exacts to arrest the decree of execution. To sanction a different doctrine would be to permit the suspension of a money judgment, indirectly, on furnishing an insufficient bond for a trifling amount, which could not produce that effect on a direct appeal of that character.”

The basis of the judgment, therefore, was that relator predicated his demand upon his offer, or his willingness, to furnish a bond for costs; it being held that such a bond was insufficient. For the reasons which have *63been stated, however, we are of opinion that, the delay allowed by law for appealing sus-pensively from the original judgment having expired, no appeal bond that could have been given in any subsequent or Collateral proceeding could properly have been held to have sustained an appeal which would have suspended the execution of that judgment. The right to execute a judgment is the only right of any value that the judgment confers, and the suggestion that after the right of appeal from a judgment has been lost the judgment debtor may further tie it up by appealing from an order for its execution is wholly inadmissible.

In so far, therefore, as the opinion in the case last cited holds that a suspensive appeal will lie from a judgment dismissing an appeal previously allowed, but not perfected, we are constrained to overrule it.

Rehearing refused.