Bergstrom v. Spellman , 1919 La. App. LEXIS 95 ( 1919 )

CHARLES F. CLAIBORNE, JUDGE.

On motion to dismiss.

Prom a judgment against him, the plaintiff on June 26th. obtained an order for a devolutive appeal returnable to this Court on July 22d, 1915. He filed his appeal bond in the District Court on July 23d, 1919^and filed his transcript in this Court on July 24tii.0n Jaly 28th, 1919, the defendant ana appellee roved to dismiss this appeal on the following grounds:

lo "that the oond herein was filed the day after t'te appeal was made returnable; "and

2o "that the bond filed herein is inconsistent with the motion of appeal filed herein".

Tfr|j liftnt Tfiji r tiitTI o na .iftjn ii imiTTh i

lo The apnellee has filed a orief, but has quoted no authority in support of his motion. Although the order made the appeal returnable on July 22d, yet under^the Jur^-prudence, the appellant had until July to file his transcript. It has been held that the appeal will be maintained provided the bond be filed at any time oefore the return day allowed by law. Glover vs. Taylor, 38 A., 634. In the case of Bouligny vs. White, 5 A., 31, the appellant obtained an order for a devolutive appeal returnable on May 7th; the appeal bond was filed May 10th, and the transcript May 12th, or within three judicial days after the return day fixed in the order. The Supreme Court decided that the bond had oeen filed in time inasmuch as it had been filed within the three judicial days of grace allowed by law after the return day. Also 14 A., 201.

An appeal T?ond is in time if filed on the last da£ on which the record could be filed. 1 La. Dig. p 433; Foreman vs, Francis; Bryan vs. Lange, Manning’s Unrep. Cas., 337, 341,

2o The inconsistency Between tne motion of appeal and the bond is said to ce estábil bed «y the recial in the bond, dated and filed July Cod, tv i the appellant k'-'S "this day filed a ^evolutive appeal", v** 1 e the ap >eal —as taken June 26th, tt t:'.e oond t-.ereby r h-'rs to another order of appeal, and that tne two are not i entified the one *ith the other. There was only one order of • ^peal and one bond filed in this case, therefore, there can be no douut that t3~e only bond filed was furnished in accordance with the only order granted. The bond is otherwise identified wish the order oy the number and title of the suit, the na-.es of the parties and of the surety, the date of the judgnont er.d the amount of the bond fixed by the order of Court. It has been held that where the appeal bond is sufficiently identified with the judgment appealed from the appeal will not oe dismissed 'on account of erasures and interlineations which cannot effect the liability of the surety. 119 La., 961.

"A-i error in recítr :-f tr e date of the judgment appealed from will not vitiate the appeal bond, the judgment being otherwise unmistakably identified". 111 La., 766.

Lotioi. to dismiss denied.

October 23rd, 1919.