Farlouis v. LaRock , 1974 La. App. LEXIS 4203 ( 1974 )

LOTTINGER, Judge.

ON MOTION TO DISMISS APPEAL

The defendants and appellees have filed a motion in this Court to dismiss this appeal. They allege that, “A document which purports to be an appeal bond, appearing on page 121, Volume 1 of the record on appeal is grossly defective, invalid and of no legal efficacy or effect, as an appeal bond under the law of Louisiana, for the reason that said document is not signed by the principals, plaintiffs-appellants herein”. They further contend that the appeal bond is not timely filed.

This suit is for an injunction. The judgment denying the injunction was rendered November 26, 1973, and read and signed on February 19, 1974. All parties were notified as to said judgment on said date. Application for a rehearing or new trial was timely filed on February 22, 1974 and set for hearing on March 1, 1974, and on said date same was refused. On March 14, 1974 appeal bond was timely filed. See C.C.P. Art. 3612. We therefore find that the appeal bond was timely filed.

They next contend that the appeal bond filed herein is defective and as a result thereof the appellants have not perfected their appeal. We are of the opinion that C.C.P. Art. 2088 is controlling herein, which provides as follows:

“Art. 2088. Divesting of jurisdiction of trial court

The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the timely filing of the appeal bond, or if no bond is required, on the granting of the order of appeal. Thereafter, the trial court has no jurisdiction over these matters except to:

(1) Allow the taking of a deposition, as provided in Article 1437;

(2) Extend the return day of the appeal, as provided in Article 2125;

(3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;

(4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132;

(5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;

(6) Grant an appeal to another party; or

(7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal.

(8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code.

Amended by Acts 1964, No. 4, § 1; Acts 1968, No. 128, § 1.” (Italics ours.)

We are of the opinion that this question should be raised before the Lower Court as provided above.

For the reasons hereinabove assigned, the motion to dismiss this appeal is hereby denied.

Motion denied.