
    No. 3929.
    The State ex rel. Dezutter v. Judge of the Fifth District Court of New Orleans.
    A judge who has dismissed an appeal on the ground that the surety is not good, can not be compelled by mandamus to send up the record. The imoper remedy to prevent the judge from executing the judgment is by prohibition. 21 An. 113.
    for a writ of Mandamus.
    
      Leaumoni, J., respondent.. J. J. Foley, for relator.'
   Ludeling, C. J.

The relator asks for a mandamus to compel the Judge of the Fifth District Court of New Orleans to send up to this court the appeal taken by him in the suit No. 2210 of the docket of said court, on the ground that he had given a good bond according to law, but which the judge rejected as insufficient.

■ The record before us shows that a devolutive appeal was taken from a judgment against Dezutter for two thousand seven hundred and fifty dollars damages; that the order for appeal fixed the amount of the bond at one thousand dollars, and that a bond for that amount was executed with two sureties, who divided their responsibility. One of the sureties, the judge a quo thought not solvent. We have come to the conclusion that he is a good surety, after a careful examination of' the evidence taken on the rule. And we are constrained to remark that the sum of one thousand dollars for. a bond for costs to be incurred on appeal would seem to be excessive and unreasonable.

But we have often held that after an appeal has been taken and a good bond has been filed in the case, the remedy to prevent the judge a quo from exercising jurisdiction in the case is by prohibition. 21 An. 113, Johnson v. Judge of the Fifth District Court.

It is not the duty of the judge to send up the transcript of appeal.

It is therefore ordered that the complaint be dismissed with costs.  