Guizerix v. Schaubhut

116 So. 2d 367, 1959 La. App. LEXIS 1097

Opinion

PER CURIAM.

This appeal by Royal P. Schaubhut emanates from the Civil District Court for the Parish of Orleans. Plaintiff-appellee, Armand P. Guizerix, conducting his business under the trade name of Local Finance Company of New Orleans, has filed a motion to dismiss defendant’s suspensive appeal on the basis that the bond necessary to perfect the appeal was not timely filed.

Defendant-appellant answered this motion, conceding that he had forfeited his right to a suspensive appeal by virtue of his failure to file the appeal bond within the period prescribed by law;¹ however, he urges, the appeal should be maintained as devolutive since the bond was filed within a year from the signing of the lower court judgment.

Judgment was rendered below on July 9, 1959 and was signed on July 15, 1959. On July 24, 1959, defendant’s counsel petitioned the lower court to grant a suspensive and devolutive appeal and an order was signed granting a suspensive appeal that same day. Appellant did not file the requisite bond until August 5, 1959, too late to perfect a suspensive appeal.

However, since defendant did post bond within a year from the time the judgment was signed, his appeal will be treated as devolutive. Our jurisprudence is replete with authority sustaining this action. Although the order granting an appeal only encompasses a suspensive appeal, this is immaterial since the amount of the bond and' the time it is filed determine the character of the appeal.²

For the reasons assigned, the suspensive appeal is dismissed, but it will be maintained as devolutive.

1 . La.Code of Practice Art. 575 provides that in order to perfect a suspensive appeal, the appellant must file a bond within ten days, exclusive of Sundays, from the signing of the judgment.

2 . Cahee v. United States Casualty Company, La.App.1956, 86 So.2d 631; Diamond Match Company v. Moran, La.App. 1955, 82 So.2d 784; Courvelle v. Eckart,. La.App.1950, 49 So.2d 658; Graziani v. Elder & Walters Equipment Co., 1945, 208 La. 80, 22 So.2d 841; Cortez v. Cortez, 1932, 175 La. 179, 143 So. 41.