On Motion to Dismiss Appeal.
LAND, J.
Plaintiffs move to dismiss /the Appeal in this case for the following reasons:
(1) That it does not appear in the record herein whether defendant and appellant intended to or did attempt to perfect her suspensive or devolutive appeal or both, and it cannot be decided by this court whether this ease is before this court now on suspensive or devolutive appeal.
On June 14, 1923, defendant and appellant moved for an appeal herein, and the lower court on said day granted defendant and appellant a suspensive appeal upon defendant furnishing bond in the sum of $5,-000, and also ordered that defendant and appellant be granted a devolutive appeal upon ■defendant furnishing bond in the sum of ■$5,000.
On June 16, 1923, defendant and appellant filed an appeal bond in the lower court in the sum of $5,000, conditioned:
“That the above bound Mabel Browne Grant, -widow of James D. Grant, shall prosecute said suspensive and/or devolutive appeal, and shall satisfy whatever judgment may be rendered against her, or that the same shall be satisfied by the proceeds of the sale of her estate, real or personal, if she be cast in the appeal; otherwise that the said Globe Indemnity Company shall be liable in her place.”
This is a controversy -over the disposition of the estate of James D. Grant, deceased, between plaintiffs, Mrs. Mollie T. Sheehan Grant, the alleged “common-law” wife of deceased, and her son, James D. Grant, Jr., and the defendant, Mrs. Mabel Browne Grant, who was married in this state to deceased November 19, 1907, according to the due forms and solemnities of law.'
The date of this alleged “common-law marriage” in the state of Mississippi is August 15, 1884, and the date of the birth of James D. Grant, Jr., the alleged issue of said marriage, is January 4, 1886.
James D. Grant died at his domicile in St. Tammany parish April 19, 1921. On April 30, 1921, his last will and testament, in which he named defendant, Mrs. Mabel Browne Grant, as his lawful wife, appointed her as his executrix, and instituted her as his universal legatee, was duly probated. After the payment of debts, his estate was accepted by the universal legatee unconditionally, and on May 28, 1921, she'was sent into possession of its effects by order of court.
On April 4, 1922, plaintiff Mrs. Mollie T. Sheehan Grant filed a petition in the succession' of James I}. Grant, alleging thkt she was his “common-law” wife, and prayed for judgment setting aside the will, annulling the probation of same, and the order sending defendant, as universal legatee, into possession, and asking that she be recognized as the owner of one half, and as the usu
fructuary of the other half, of the estate of decedent.
In, October, 1922, James D. Grant, Jr., also filed a petition in said succession, praying that he be recognized as the sole surviving, legitimate son of deceased and his sole legal heir, and entitled to one-half ownership in the community estate of his deceased father, and to the full ownership of his father’s separate estate.
These claims of plaintiffs were denied and contested by defendant, Mrs. Mabel Browne Grant, and a judgment was rendered on these issues in open court June 11, 1923, and was afterwards amended, and was signed, as amended, in open court, June 14, 1923.
This judgment fixed the status and rights' of all the parties in interest, and inaintained and perpetuated the judicial sequestration herein issued until the final termination of this suit.
No money judgment was rendered, nor was any attempt made to make a finding as to how much property had been acquired by decedent before his marriage to defendant and how much had been acquired after his marriage to her.
The petition of neither Mrs. Mollie T. Sheehan Grant nor of James D. Grant, Jr., prays for any money judgment. Nor did said judgment order the delivery of any real estate or other property in dispute into the possession of either plaintiffs or defendant.
In defendant’s motion for app;eal it is distinctly stated that the property in controversy here as the property of the succession of James D. Grant, deceased, is in the custody of the court under the writ of judicial sequestration herein issued.
Articles 573, 574, and 579 of the Code of Practice do not require that either the petition, motion for appeal, or the appeal bond shall, state whether it is a suspensive or a devolutive appeal that is applied for.
It is the character of the bond and the time within _ which it is filed which determines the character of the appeal.
The bond in this case was given within two days after the judgment was rendered, i. e., within the time prescribed for taking a
suspensive
appeal.
In the case of State ex rel. Eustis v. Judge, 27 La. Ann. 685, the court said:
“There is no force in the objection of the respondent that appellant in applying for an appeal did not specifically ask for a suspensive appeal. He applied for an appeal, .and he gave bond within ten days for an amount sufficient for a suspensive appeal.”
In the case of Funke, Adm’r, v. McVay, 21 La. Ann. 192, we said:
“An order for a suspensive and devolutive appeal may be granted by the judge a quo, separately, or both, in one order, and the appellant may in his discretion avail himself of the benefit of either order by giving the required bond within the time i>reseribed by law.”
Defendants obtained an order for both a suspensive appeal and a devolutive appeal; the bond in each case being fixed at $5,000. Tr. 227.
In the case of Bernheim v. Pessou, 143 La. 609, 79 So. 23, it is stated:
“Where both appeals have been asked, the one bond will serve for the suspensive appeal, if filed in time; if not, then, for the devolutive. * * * The one bond being given for costs, and' presumably sufficient for that purpose, there could be no use in giving a second bond to cover the samj”—citing numerous cases.
In the above-cited case, one of the grounds of the motion to dismiss the appeal was:
“That the lower judge allowe'd a suspensive appeal on furnishing a bond of $200' and a devolutive appeal on furnishing a.bond of $200, but appellant has furnished only one bond for $200, without designating which appeal lie intends to' perfect.”
The court denied the motion to dismiss, saying:
“In the instant case the bond was filed in time, and hence can avail for the suspensive appeal; and it is in the amount fixed by the judge, and hence can avail for the devolutive
appeal. All that is necessary to maintain an appeal is that a bond in the right amount be filed.”
We therefore hold that the appeal in this case is suspensive.
(2) That the bond given by appellant should be unconditional as to the obligation of the surety, and that the bond herein given is not so unconditional.
Free access — add to your briefcase to read the full text and ask questions with AI
On Motion to Dismiss Appeal.
LAND, J.
Plaintiffs move to dismiss /the Appeal in this case for the following reasons:
(1) That it does not appear in the record herein whether defendant and appellant intended to or did attempt to perfect her suspensive or devolutive appeal or both, and it cannot be decided by this court whether this ease is before this court now on suspensive or devolutive appeal.
On June 14, 1923, defendant and appellant moved for an appeal herein, and the lower court on said day granted defendant and appellant a suspensive appeal upon defendant furnishing bond in the sum of $5,-000, and also ordered that defendant and appellant be granted a devolutive appeal upon ■defendant furnishing bond in the sum of ■$5,000.
On June 16, 1923, defendant and appellant filed an appeal bond in the lower court in the sum of $5,000, conditioned:
“That the above bound Mabel Browne Grant, -widow of James D. Grant, shall prosecute said suspensive and/or devolutive appeal, and shall satisfy whatever judgment may be rendered against her, or that the same shall be satisfied by the proceeds of the sale of her estate, real or personal, if she be cast in the appeal; otherwise that the said Globe Indemnity Company shall be liable in her place.”
This is a controversy -over the disposition of the estate of James D. Grant, deceased, between plaintiffs, Mrs. Mollie T. Sheehan Grant, the alleged “common-law” wife of deceased, and her son, James D. Grant, Jr., and the defendant, Mrs. Mabel Browne Grant, who was married in this state to deceased November 19, 1907, according to the due forms and solemnities of law.'
The date of this alleged “common-law marriage” in the state of Mississippi is August 15, 1884, and the date of the birth of James D. Grant, Jr., the alleged issue of said marriage, is January 4, 1886.
James D. Grant died at his domicile in St. Tammany parish April 19, 1921. On April 30, 1921, his last will and testament, in which he named defendant, Mrs. Mabel Browne Grant, as his lawful wife, appointed her as his executrix, and instituted her as his universal legatee, was duly probated. After the payment of debts, his estate was accepted by the universal legatee unconditionally, and on May 28, 1921, she'was sent into possession of its effects by order of court.
On April 4, 1922, plaintiff Mrs. Mollie T. Sheehan Grant filed a petition in the succession' of James I}. Grant, alleging thkt she was his “common-law” wife, and prayed for judgment setting aside the will, annulling the probation of same, and the order sending defendant, as universal legatee, into possession, and asking that she be recognized as the owner of one half, and as the usu
fructuary of the other half, of the estate of decedent.
In, October, 1922, James D. Grant, Jr., also filed a petition in said succession, praying that he be recognized as the sole surviving, legitimate son of deceased and his sole legal heir, and entitled to one-half ownership in the community estate of his deceased father, and to the full ownership of his father’s separate estate.
These claims of plaintiffs were denied and contested by defendant, Mrs. Mabel Browne Grant, and a judgment was rendered on these issues in open court June 11, 1923, and was afterwards amended, and was signed, as amended, in open court, June 14, 1923.
This judgment fixed the status and rights' of all the parties in interest, and inaintained and perpetuated the judicial sequestration herein issued until the final termination of this suit.
No money judgment was rendered, nor was any attempt made to make a finding as to how much property had been acquired by decedent before his marriage to defendant and how much had been acquired after his marriage to her.
The petition of neither Mrs. Mollie T. Sheehan Grant nor of James D. Grant, Jr., prays for any money judgment. Nor did said judgment order the delivery of any real estate or other property in dispute into the possession of either plaintiffs or defendant.
In defendant’s motion for app;eal it is distinctly stated that the property in controversy here as the property of the succession of James D. Grant, deceased, is in the custody of the court under the writ of judicial sequestration herein issued.
Articles 573, 574, and 579 of the Code of Practice do not require that either the petition, motion for appeal, or the appeal bond shall, state whether it is a suspensive or a devolutive appeal that is applied for.
It is the character of the bond and the time within _ which it is filed which determines the character of the appeal.
The bond in this case was given within two days after the judgment was rendered, i. e., within the time prescribed for taking a
suspensive
appeal.
In the case of State ex rel. Eustis v. Judge, 27 La. Ann. 685, the court said:
“There is no force in the objection of the respondent that appellant in applying for an appeal did not specifically ask for a suspensive appeal. He applied for an appeal, .and he gave bond within ten days for an amount sufficient for a suspensive appeal.”
In the case of Funke, Adm’r, v. McVay, 21 La. Ann. 192, we said:
“An order for a suspensive and devolutive appeal may be granted by the judge a quo, separately, or both, in one order, and the appellant may in his discretion avail himself of the benefit of either order by giving the required bond within the time i>reseribed by law.”
Defendants obtained an order for both a suspensive appeal and a devolutive appeal; the bond in each case being fixed at $5,000. Tr. 227.
In the case of Bernheim v. Pessou, 143 La. 609, 79 So. 23, it is stated:
“Where both appeals have been asked, the one bond will serve for the suspensive appeal, if filed in time; if not, then, for the devolutive. * * * The one bond being given for costs, and' presumably sufficient for that purpose, there could be no use in giving a second bond to cover the samj”—citing numerous cases.
In the above-cited case, one of the grounds of the motion to dismiss the appeal was:
“That the lower judge allowe'd a suspensive appeal on furnishing a bond of $200' and a devolutive appeal on furnishing a.bond of $200, but appellant has furnished only one bond for $200, without designating which appeal lie intends to' perfect.”
The court denied the motion to dismiss, saying:
“In the instant case the bond was filed in time, and hence can avail for the suspensive appeal; and it is in the amount fixed by the judge, and hence can avail for the devolutive
appeal. All that is necessary to maintain an appeal is that a bond in the right amount be filed.”
We therefore hold that the appeal in this case is suspensive.
(2) That the bond given by appellant should be unconditional as to the obligation of the surety, and that the bond herein given is not so unconditional.
This contention is based upon the proposition that it is impossible to determine whether the -appeal is devolutive or suspensive, and therefore whether the obligation of the surety on the appeal bond herein given is for a devolutive or a suspensive appeal.
The condition of the bond in this case is that defendant and appellant shall prosecute the appeal and shall satisfy whatever judgment may be rendered against her, or that the same shall be satisfied by the proceeds of the sale of her estate, real or personal, if she be cast in the appeal; otherwise that the said Globe Indemnity Company shall be liable in the premises.
Those are the conditions of a suspensive appeal bond. C. P. art. 579.
, The appeal in this case being suspensive, the surety on the appeal bond is bound by these conditions, and has so expressly'bound itself in said bond.
(3) An attack is made by appellees on the sufficiency of the bond as a suspensive appeal bond.
The contention of appellees that the appeal bond in this case is ■ insufficient in amount or incorrect by reasons of errors or omissions therein should have been made in the lower court after due notice to defendant and appellant, and an opportunity given defendant and appellant to furnish a new bond, as required by Act 112 of 1916.
It is not pretended that appellees pursued this course in the lower court, and it is now too late to urge these objections here. Hurry v. Hurry, 144 La. 877, 81 So. 378; Durel v. Buchanan, 147 La. 804, 86 So. 189; Bilich v. Mathe, 149 La. 484, 89 So. 628; White v. Maison Blanche Co., 142 La. 265, 76 So. 708.
The motion to dismiss the appeal is therefore overruled.