Davidson v. Richard McCarthy Co., Inc. , 166 So. 504 ( 1936 )

On July 1, 1935, the district court entered its final judgment dismissing the plaintiff's suit. On the following day plaintiff applied for and obtained an order for a devolutive appeal to this court, the return day here being July 31, 1935.

In lieu of furnishing bond, the appellant was allowed to proceed in forma pauperis under the provisions of Act No. 156 of 1912, as amended by Act No. 260 of 1918, and by Act No. 165 of 1934 and was, therefore, not required to furnish an appeal bond.

In accordance with the provisions of Act No. 165 of 1934, the defendant and appellee filed, in the district court, a motion traversing the affidavits of the appellant upon which the order allowing him to proceed in forma pauperis was granted. This rule was continued from time to time and has never been disposed of.

The appellant failed to file the record in this court on the return day and no order was obtained for an extension of time.

The record was not filed here until December 3, 1935, and the appellee, on December 17, 1935, filed a motion to dismiss the appeal.

The motion to dismiss the appeal is well founded. Lewis et al. v. Federal Land Bank of New Orleans et al., 183 La. 724,164 So. 780.

Appellant contends that the filing of the rule by the appellee in the trial court to test the affidavits, allowing appellant to proceed in forma pauperis, had the effect of staying further proceedings in the appellate court, and relieved him of the duty of filing his transcript until that pleading was disposed of. There is no merit in this contention. The law is well settled that once an appeal is taken and perfected by the filing of bond, the trial court is divested of jurisdiction except for the purpose of testing the surety on the bond. Mundy v. Phillips,157 La. 445, 102 So. 519.

The allowance of the order of appeal in forma pauperis upon affidavits has the same effect of furnishing an appeal bond and the trial court is divested of jurisdiction except for the purpose of testing the truthfulness of the affidavits upon which the appeal in forma pauperis was allowed. See, Lewis et al. v. Federal Land Bank of New Orleans et al., supra.

The appeal is dismissed.

Motion to dismiss appeal sustained.