
    No. 2760.
    State, ex. rel. J. H. Wilson, v. Judge of the Seventh District Court for the Parish of Orleans.
    
      WIigvg separate appeals are taken by tbo principal and surety on tlie bond from a jndcmenfc in solido dissolving an iujunction, the principal in injunction, if solvent, is a good and legal surety on tho appeal bond given by the surety in the injunction. As a general rule the only question to be considered in determining the sufficiency of the bond is the solvency of the surety.
    A suspensive appeal taken by the principal in injunction will not suspend execution of the judgment against the surety on the injunction bond.
    APPLICATIONfor Writ of Prohibition.
    
      Augustine & Michel, for relator. IS. Howard MeOaleh, for plaintiff in injunction. Gollens, Judge, respondent.
   Howell, J.

This is au application for a writ of prohibition, in which two questions are presented:

First — Is the principal in an injunction bond a good and legal surety, if solvent, for his surety thereon in an appeal bond given by the latter, when each lias taken a separate appeal from a judgment against them in solido, tho said principal having given other surety on his appeal bond ?

Second — Does the suspensive appeal, taken by the principal, suspend the judgment as to the surety who does not join in said appeal ?

In support of the negative of the first question the judge a quo cites the cases iu 18 An. 659 and 12 La. 383

In the first of these cases, there appears to have been only one appeal, which was taken by the principal, and his surety on the injunction bond, who was also condemned by the judgment, was tlie surety on the appeal bond. No question seems to have been raised as to the sufficiency of the surety to answer to both bonds, but the appeal was dismissed on the ground, which we deem too broadly stated, that “judgment having been rendered against the surety as a party, he is rendered incompetent to become surety on the appeal bond, in the same case,” and the case in 12 La. 383 is cited as authority. This latter-case does not, however, in our opinion, sustain the position to its full extent, but recognizes the true doctrine that the conditions of the two bonds being different, the same person may well sign both, if otherwise unexceptionable, and the qualifying remark at the close was unnecessary to the decision, and may be regarded as oUter. This doctrine is more clearly and fully stated in the case of Greiner v. Prondergast, 2 E. 235, where it was held that the surety in an injunction bond may be surety for his principal on an appeal by the latter from a judgment against both, in solido, to pay damages and costs, provided the surety would be such as would indemnify his adversary against all the consequences which might result from the appeal, as in the case of an increase of the sum recovered.

This is consonant with the articles of the Code prescribing the qualifications of a surety, which are, that he must be able to contract, of property sufficient to answer for the amount of the obligation, and resides within the jurisdiction. C. C. 3011, 3033. He may be on several bonds, but if his property be sufficient to answer for all of them, he is a good surety as to this qualification. It is an error to say that no additional security is given the appellee, because the surety on the appeal bond is a party to and liable for the judgment or part of it, from which the appeal is taken, if his property is sufficient to meet the liability for both. It is his ability to respond, rather than the manner in which he is bound, that is to be considered in this respect. In this case the surety was shown to be good for the appeal bond as well as the injunction bond, and the court below erred in rejecting him on the ground that he was a party to the suit. Had he joined his principal in the same appeal, and in one and the same bond, he would not have been a security, but a principal, and the two, as one principal, would have to give a surety on their bond. This case is different.

Upon the second point, it is well settled that an appeal, by the principal will not suspend the judgment as to the surety. See 3 An. 319; 4 An. 514; 11 An. 707; 15 An. 433; 19 An. 291.

It is therefore ordered that the inhibition herein be made perpetual.  