Greater New Orleans Homestead Ass'n v. Levy

Citations

• 11 Teiss. 29

Syllabus

<p>Syllabus.</p> <p>On Motion to Dismiss Appeal.</p> <p>Where the owner, under a building contract, provokes a concursus and deposits in Court a certain sum for distribution, the jurisdiction of the appellate Court is determined by the amount of this fund, and not by the amount of claims asserted against the plaintiff or against the fund, nor by the amount to which said fund may be ordered increased by the judgment of the trial Court.</p> <p>1. An appellate Court cannot amend the judgment as between co-appellees.</p> <p>2. An owner who, in violation of the. provisions of R. C. C., 2772, pays to the contractor funds arrested in his hands by the effect of the service of attested accounts, cannot recover of his surety the penalty incurred by him by reason of his unauthorized act.</p> <p>3. But the surety on a building contract is not released from liability to the owner, because the latter, in violation of R. C. C., 2772, pays to the contractor an installment of the price of the building which has been arrested in his hands through the service of attested accounts. Such payment is considered as not made.</p> <p>4. The surety on the bond of a building contractor in favor .of the owner is not released from liability by the fact that the owner pays the contractor by anticipation, nor by the fact that payments are made without .the production of the certificate of the architect as required by the terms of the contract.</p>