Simpson v. Pardue ( 1930 )

ON MOTION TO DISMISS

WESTERFIELD, J.

The appellee moves to dismiss this appeal upon the ground that the appeal bond was filed too late. The judgment against the defendants in the sum of $212 with legal interest from December 6, 1928, was rendered on March 31, 1930. A motion for a devolutive and suspensive appeal was filed on April 1, 1930, and an appeal granted, returnable April 25, 1930, conditioned upon the defendants furnishing bond as required by •law “in the sum of $50.00 for the devolutive appeal and the amount fixed by law for the suspensive appeal.” Twenty-four days thereafter or on April 24, 1930, a suspensive appeal bond in the sum of $350 was filed. Article 575 of the. Code of Practice requires suspensive appeals to be taken within ten days excluding Sundays. This appeal was obviously not within the time allowed for a suspensive appeal and, therefore, cannot be maintained as such. But, the bond was filed well within the year allowed for a devolutive appeal, and, though doubtless intended as security for the suspensive appeal, can, we believe, be allowed to support the devolutive appeal for which an order had been obtained and granted, the bond being for a sum much greater than the amount of security required in the order granting a devolutive appeal. See Harrell v. Gondolf, 6 La. App. 50.

For the reasons assigned the appeal herein taken is dismissed, as suspensive and maintained as a devolutive appeal.