Metropolitan Bank v. Blaise

Citations

• 109 La. 92
• 33 So. 95
• 1902 La. LEXIS 114

Syllabus

<p>SUSPENSIVE APPEAL—BOND — SUFFICIENT r — MORTGAGE NOTE — EXECUTORY PROCESS — PLEADING — PROOF — JUDGMENT — TRAIs S-FER—COLLATERAL ATTACK.</p> <p>On Motion to Dismiss Appeal.</p> <p>The amount of the bond for a suspensive appeal was fixed by the judge of the district court, the money in controversy being in possession of the court through the proper officer. Bond was furnished for the amount as fixed. A motion was presented in the district court, and overruled, to dismiss the appeal on the ground that the bond was insufficient in amount. Held'.</p> <p>1. Bond for costs is sufficient for suspensive appeal when the money is to -remain temporarily in court to await final determination of issues. Blanchin v. The Fashion, 10 La. Ann. 345.</p> <p>2. The remedy is by appeal from the order of the district court dismissing the motion made to have the appeal dismissed on the ground that the amount of the bond is insufficient. Huntington v. Bordeaux, 7 South. 553, 42 La. Ann. 346.</p> <p>3. Or by mandamus to compel the court to fix a sufficient amount for the bond. State v. ■Judge of Sixth Ilist. Ct. of Parish of Orleans, 22 La. Ann. 176.</p> <p>On the Merits.</p> <p>4. The consideration for a transfer of a judgment, with subrogation by the judgment creditor, to a third party, cannot be inquired into by one wTho is neither a creditor nor an heir of the transferror, nor holds rights upon the judgment. The extent of the rights of the transferee under the transfer with subrogation is not governed by the price which he has paid for the judgment.</p> <p>5. A party proceeding by executory process on mortgage notes is not called upon to sustain by proof the reality and extent of the indebtedness shown by the notes, upon mere allegations of fraud and simulation, and in the absence of any evidence or presumption to support the allegations.</p> <p>(Syllabus by the Court.l</p>