Bass v. Service Pipe Trucking Co.

MOTION TO DISMISS

FRUGE, Judge.

Plaintiff-appellant, Calvin Bass, has lodged a suspensive, and in the alternative, devolutive appeal from a judgment ordering him to submit to surgery for repair of a torn medial meniscus in the right knee by a surgeon of his own choosing within 45 days from the date of that judgment, or in default thereof to suffer a cessation of compensation payments being made by the defendants. Notice of judgment was served on the plaintiff’s attorney on August 18, 1972. Since the suit was filed in forma pauperis, his appeal was perfected upon obtaining the order of appeal. Defendants-appellees move here for an order dismissing the suspensive appeal and requiring appellant to post bond in order to proceed with this matter as a devolu-tive appeal.

A party proceeding in forma pauperis has the right to a devolutive appeal without furnishing an appeal bond, but he is not entitled to a suspensive appeal without furnishing the necessary security therefor. LSA-C.C.P. Article 5185. Insofar as the appeal purports to suspend the judgment, it must be dismissed. However, since the order granting plaintiff-appellant’s appeal in forma pauperis was signed within the delay allowed for a devolutive appeal, this appeal will be upheld as a devolutive appeal. Desormeaux v. American Mutual Liability Insurance Company, 220 So.2d 170 (La.App. 3rd Cir., 1969), writs refused 254 La. 133, 222 So. 2d 883 (1969).

Motion to dismiss suspensive appeal granted.