Brown v. Green

Supreme Court of Louisiana

Brown v. Green

63 So. 303, 133 La. 725, 1912 La. LEXIS 783

Supreme Court of Louisiana·Decided November 4, 1912·No. No. 19,503·Published·Cited by 3 cases

Opinions

Motion to Dismiss the Appeal.

BREAUX, C. J.

[1] The grounds are that the bond is insufficient, as the amount in[727] volved is $2,000, and the appeal bond is for $50, and that there was no order of devolutive appeal issued by the court. We hold that the appeal, none the less, is good as a devolutive appeal. We are not of opinion that two orders were necessary. Twelve months since the judgment was rendered have not elapsed. This point was directly decided in Hillard v. Taylor, 114 La. 890, 38 South. 594. The court said, in answer to a similar objection, that the only effect of ordering the dismissal would be to force the appellants to obtain another order of appeal, execute a new bond, and issue a new citation of appeal. This the court declined to do. It held that the order for the suspensive appeal was sufficient to include both, and covered both the suspensive and devolutive appeals.

[2] The bond is sufficient in amount on another ground. Proceedings were by injunction, which the court below dissolved without damages, and without allowing any moneyed demand, and without ordering the delivery of personal property or of realty.

The defendant must look to the bond for the injunction. By reason of that fact, the bond for costs is sufficient for a suspensive appeal. Day v. Bailey, 116 La. 962, 41 South. 223; Succ. of Hardesty, 29 La. Ann. 289.

[3] Lastly, there can be no irreparable injury.

There was sufficient irreparable injury to justify granting the appeal. It was a matter of partition in which the court passed upon the rights of the co-owners. When distribution will be made of it as prayed for, the title to the property will be recognized and! become vested.

Really, the last stated question is not at issue. The motion to dismiss was not based on the ground of no irreparable injury possible.

It follows that the alleged insufficiency of the bond was the only question at issue, and, by reason of that fact, the decision is grounded upon insufficiency of the bond for the appeal. We think it was sufficient.

The foregoing are grounds for overruling the motion to dismiss.

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Motion to Dismiss the Appeal.

BREAUX, C. J.

[1] The grounds are that the bond is insufficient, as the amount in[727] volved is $2,000, and the appeal bond is for $50, and that there was no order of devolutive appeal issued by the court. We hold that the appeal, none the less, is good as a devolutive appeal. We are not of opinion that two orders were necessary. Twelve months since the judgment was rendered have not elapsed. This point was directly decided in Hillard v. Taylor, 114 La. 890, 38 South. 594. The court said, in answer to a similar objection, that the only effect of ordering the dismissal would be to force the appellants to obtain another order of appeal, execute a new bond, and issue a new citation of appeal. This the court declined to do. It held that the order for the suspensive appeal was sufficient to include both, and covered both the suspensive and devolutive appeals.

[2] The bond is sufficient in amount on another ground. Proceedings were by injunction, which the court below dissolved without damages, and without allowing any moneyed demand, and without ordering the delivery of personal property or of realty.

The defendant must look to the bond for the injunction. By reason of that fact, the bond for costs is sufficient for a suspensive appeal. Day v. Bailey, 116 La. 962, 41 South. 223; Succ. of Hardesty, 29 La. Ann. 289.

[3] Lastly, there can be no irreparable injury.

There was sufficient irreparable injury to justify granting the appeal. It was a matter of partition in which the court passed upon the rights of the co-owners. When distribution will be made of it as prayed for, the title to the property will be recognized and! become vested.

Really, the last stated question is not at issue. The motion to dismiss was not based on the ground of no irreparable injury possible.

It follows that the alleged insufficiency of the bond was the only question at issue, and, by reason of that fact, the decision is grounded upon insufficiency of the bond for the appeal. We think it was sufficient.

The foregoing are grounds for overruling the motion to dismiss.

Brown v. Green, 63 So. 303, 133 La. 725, 1912 La. LEXIS 783 (La. 1912).

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