Hitt v. Herndon

117 So. 568, 166 La. 497, 1927 La. LEXIS 1906

• Court: Supreme Court of Louisiana
• Decided: October 31, 1927
• Docket: No. 28858.
• Status: Published

Opinions

On Motion to Dismiss.

ST. PAUL, J.

Defendant herein took both a suspensive appeal and a devolutive appeal from a money judgment against him. Plaintiff moved below to dismiss the suspensive appeal on the ground that the bond given was insufficient. Within two days after notice thereof defendant filed an additional bond in a sum sufficient to supply the deficiency, all in accordance with Act 112 of 1916.

The motion to dismiss is renewed here, ‘the contention being that. Act 112 of 1916 has been repealed by Act 289 of 1926, which amends and re-enacts article 575 of the Code of Practice, and repeals all laws in conflict therewith, “especially Act 45 of 1890,” which itself amends article 575, C. P.

We are of opinion that Act 289 of 1926 does not repeal Act 112 of 1916. The two acts are not on the same subject, and are not inconsistent with each other. Act 289 of 1926, amending C. P. art. 575, prescribes the requisites for appealing, the effect of appeals when taken, and the method of testing the surety on appeal bonds, whilst Act 112 of 1916 provides for correcting irregularities and supplying deficiencies in appeal bonds.

The main, if not the sole, purpose of Act 289 of 1926, was to eliminate the concluding paragraph of Act 45 of 1890, which provides that:

“In the country parishes no execution shall issue * * * where an appeal lies, until * * * after the adjournment of the court by which the judgment was rendered, within which delay, a party may take a suspensive appeal on filing petition and appeal bond is now provided by law.”

The motion to dismiss is therefore denied.