Grandmougin v. Green

135 So. 259, 17 La. App. 49, 1931 La. App. LEXIS 726

• Court: Louisiana Court of Appeal
• Decided: June 16, 1931
• Docket: No. 795
• Status: Published

Opinions

ON MOTION TO DISMISS

LeBLANC, J.

The lower court granted an order of appeal to the appellant for both the suspensive and devolutive appeals, fixing the bond for a suspensive appeal in an amount according to law, and for the devolutive appeal, in the sum of $100.

The order was signed on January 12, 1931, and on January 28, 1931, the appellant furnished an appeal bond in the sum of $100, for what is referred to in the bond itself as a suspensive appeal.

The motion to dismiss is based on the ground, first, that the bond was furnished more than ten days after the signing of the order, and consequently too late for a suspensive appeal, and, secondly, that the amount of bond furnished is too. small for a suspensive appeal.

Whenever a motion to dismiss an appeal is presented, there is always to be considered, first, the regard with which the law favors an appeal. It has been directly held in the case of Mestier v. Chevalier Pavement Co., 103 La. 562, 32 So. 520, that, where the appellant furnishes an appeal bond for the amount fixed by the court, the appeal will be maintained as devolutive, even though the bond be too small for a suspensive appeal.

Here it is true that in the -bond itself the appeal is designated as suspensive, but we do not think that, because of such an erroneous declaration when the bond seems to be valid in every other respect, and the amount is sufficient to support a devolutive appeal, the appellant should be denied his right of appeal with which, as already stated, the law favors him.

The motion is therefore denied.