Durel v. Buchanan

86 So. 189, 147 La. 804, 1920 La. LEXIS 1601

Opinions

On Motion to Dismiss Appeal.

DAWKINS, J.

The appellee in this case has moved to dismiss the appeal on the ground of the insufficiency of the appeal bond.

[1] Since the passage of Act No. 112 of 1916, appeals cannot be dismissed for the reason urged, without first following out the procedure provided therein. The act in question, after providing that any litigant who has furnished a bond in any judicial proceeding, or under any order of court, shall have the right to furnish new or additional bonds, when those given are insufficient or defective in any wise, in section 3 provides as follows:

“That the right to furnish such new, or such supplemental or additional bond shall be exercised as follows: The party desiring to furnish such new, or such supplemental or additional bond shall have the right so to do at any time prior to judgment; if the adverse party, or any other party in interest shall cause to be served upon him through the proper officer for service, a notice that such adverse party, or the party in interest, claims that a bond furnished in the proceeding to which he is a party or in which he has an interest, is insufficient either as to form or substance, or of the solvency, or because of the pecuniary insufficiency of 'the surety or sureties thereon, the said party who has furnished such bond shall have the right within two days, exclusive of Sundays, legal holidays and half holidays, to furnish the new bond, or supplemental bond or additional bond above referred to. If he shall fail to furnish same, the case shall then proceed without any diminution of the right of the adverse party, or other party' in interest, to test the sufficiency of the bond furnished whether as to. the amount or form thereof, or the solvency of the surety or sureties thereon.”

And section 9 of said act is as follows:

“That no appeal shall be dismissed, nor shall any writ, or other process be set aside on account of any error in the amount of the bond, or for any inaccuracy or omission in the bond, or for the insufficiency of any surety, or sureties, on said bond, until the party furnishing such bond shall have failed to correct the error, inaccuracy or omission, or to have furnished, supplemental or additional bond, or surety or sureties, as herein above provided.”

For the reasons assigned, the motion to dismiss is denied.