Quenqui v. Reliance Homestead Ass'n. , 172 La. 119 ( 1931 )

On Motion to Dismiss. This is a mandamus suit. It is brought by a stockholder of the defendant corporation to compel the corporation to permit an examination of its books and records.

There was a judgment in favor of the plaintiff and against the defendant perpetuating the writ of mandamus, from which the defendant appealed.

The order of appeal is in the alternative, both devolutive and suspensive. Appellant perfected both appeals and gave two appeal bonds, the bond required for a suspensive appeal and the bond required for a devolutive appeal.

The plaintiff has moved to dismiss the appeal upon the ground that by the furnishing of a separate bond for a devolutive appeal the defendant waived its right to a suspensive appeal. The motion to dismiss is based upon the case of Legget Brothers v. H.L. Potter, 9 La. Ann. 309. In that case the defendant took only a devolutive appeal and by so doing waived his right to a suspensive appeal. The court said:

"Yet, if he contents himself with taking a devolutive appeal only, he cannot afterwards complain."

In the case of Standard Cotton Seed Oil Co. v. Matheson, 48 La. Ann. 1322, 20 So. 713, the exact point at issue in this case was definitely decided. The court said:

"Appellee moves to dismiss plaintiff's devolutive appeal for the reason that the suspensive and devolutive appeals herein were perfected on the same date by two separate appeal bonds, and that appellant is without warrant in law to bring up in one transcript two appeals taken in the alternative. * * *

"It was the better practice to thus preserve the identity and duality of appeal."

For the reasons stated the motion to dismiss is overruled.

On the Merits.