Daniel v. Vasquez

9 Teiss. 300

Opinions

DUFOUR, J.

A motion to dismiss this appeal is made on two grounds:

First. That said apeal was not perfected within the time prescribed by law for suspensive appeals, the judgment having been signed on January 25th, 1912, and the appeal bond having been filed on February 7th, 1912.

Second. That the amount of the bond is insufficient.

In computing the time in which a suspensive appeal may be taken, neither the day on which the judgment was signed nor that on which the appeal was taken is included.

April 17th, 1912. I. No such privity exists between those furnishing material to a building contractor and the owner as to enable the latter to bind or estop the former by his declarations or admissions. ■ 2. A building is not completed within the meaning of Act 134 of 1906 until it is ready for final delivery and has been tendered to the owner and he has accepted the same, or is in default for not having done so. 3. R. C. C., Arts. 2772, et seq., authorizing laborers, material-men, etc., to arrest in the hands of the owner by the service of attested accounts funds belonging to the contractor, are not in conflict with and were not repealed by Act 134 of 1906, the Statute being merely supplementary thereto. 4. A party will not be relieved of the costs of appeal where the sole amendment of the judgment covers a minor or clerical error that would have been corrected in the lower Court had its attention been seasonably directed thereto.

In 29 An. 224, citing 12 R. 421 and O. P. 318, the judgment was rendered on January 4th, two Sundays having intervened 5 the appeal was held to be timely. This is decisive of teh present case. See also 40 Ann, 793; 6 Court of Appeal, 252.

The bond appears to be for a sum more than one half over the amount of the judgment and is sufficient.

Motion denied.