State ex rel. Gruner v. Judge , 1928 La. App. LEXIS 29 ( 1928 )

REYNOLDS, J.

OPINION

We find in the record on appeal in the suit of C. D. Lites and J. A. Lites versus L. A. Gruner and Mrs. Gladys Gruner, No. 6124 on the docket of the Twenty-Sixth Judicial District Court of Louisiana in and for the Parish of Webster, and No. 3190 on the docket of this court, the following order:

“In this cause, by reason of the law and the above petition and affidavit being in favor thereof, the appeals prayed for, both devolutive and suspensive, are granted, and bond for suspensive appeal according to law and devolutive in the sum of fifty ($50.00) dollars; appeal to be "made returnable to the Honorable Court of Appeal holding sessions in Shreveport, Caddo Parish, Louisiana, returnable Thursday, December 1st, 1927.

“Signed officially this November 8th, 1927.

(Signed) “H. C. DREW.

“Twenty-Sixth District Court, Webster Parish, Louisiana.”

(Italics ours.)

It appears, then, that relators were granted orders of appeal both suspensive and devolutive, and therefore the only question presented for our decision is whether relators by perfecting their devolutive appeal within the legal delays thereby waived the right to perfect their suspensive appeal.

This is an interesting question and one which we do not find has been directly adjudicated by our Supreme Court.

In the ease of Legget & Brothers vs. Potter, 9 Ann. 309, it was said:

“The question presented is, whether (the case being appealable) plaintiffs were warranted in issuing execution until after the expiration of ten days from the notification of judgment? The act was manifestly irregular, unless by taking a devolutive appeal, defendant is to be regarded as having waived the delay. The object of the delay is that the party against whom judgment has been rendered may have time to consider whether or not he will take a suspensive appeal, and, in case he shall do so, to allow him a reasonable time to procure his security, and do such other acts as may be necessary. This reasonable time is ten days. It is for the benefit of the judgment debtor; but like any other privilege, may be waived; and this waiver, together with the waiver of a suspensive appeal, we think was virtually made, when defendant obtained his devolutive appeal.”

This language, taken literally, might well be construed to mean that the perfecting of a devolutive appeal under an order granting both a devolutive and a suspensive appeal waives the right to perfect the suspensive appeal; but that question was not at issue in that case and we regard the language of the court quoted as obiter dicta in so far as it affects the question at issue here. The question before the court there was whether an execution issued upon a judgment within ten days after the judgment was rendered was prematurely issued.

The same is true of the case of Hatch vs. English, 12 Rob. 135, the syllabus in which reads as follows:

“Where a fi. fa. has been issued against a defendant before notice of judgment served on him as required by law, he may require that the fi. fa. be quashed, and a suspensive appeal allowed. But where he contents himself with taking a devolutive appeal only, he cannot afterwards complain.”

We are of the opinion that relators were entitled to perfect their suspensive appeal within the legal delays, notwithstanding they had already perfected their devolutive appeal, and they having done so the judgment making absolute the rule to show cause why the sheriff should not be ordered to proceed with the execution of the judgment was erroneous.

It is therefore ordered, adjudged and decreed that the alternative writs of prohibition, certiorari and mandamus heretofore issued here be made peremptory.