Davis v. Bowman , 1976 La. App. LEXIS 3400 ( 1976 )

ON MOTION TO DISMISS

MORIAL, Judge.

Appellees moved to dismiss this appeal based upon the filing by the appellants of an appeal bond which does not contain the signature or signed affidavit of the personal surety. See LSA-C.C.P. Article 5122.

LSA-C.C.P. Article 5123 establishes the procedure for testing the validity of an appeal bond in the trial court in which the proceeding was brought. See Reid v. Blanke, La.App., 200 So.2d 132 (1967). Further, under LSA-C.C.P. Article 2088(5) the trial court retains jurisdiction to test the invalidity of an appeal bond. The dismissal of an appeal based upon the invalidity of the appeal bond is prohibited unless the party who furnished it is afforded an opportunity to furnish a new or supplemental bond. See LSA-C.C.P. Articles 5124, 5125 and 5126. Furthermore, the record contains an amended and supplemental appeal bond that meets the requirements of LSA-C.C.P. Article 5122.

For the foregoing reasons the motion to dismiss the appeal is denied at movers’ costs.

MOTION DISMISSED.