Nelson v. Stafford

385 So. 2d 293

• Court: Louisiana Court of Appeal
• Decided: February 11, 1980
• Docket: No. 13373
• Status: Published

Opinion

PONDER, Judge.

Defendant appellee moves the court to dismiss the appeal of plaintiff appellant on the grounds that a suspensive appeal was granted and no bond has been timely filed.

Plaintiff is proceeding in forma pau-peris and as such is entitled to litigate without payment of costs in advance or as they accrue. However, plaintiff is entitled only to a devolutive appeal. There is no suspen-sive appeal in forma pauperis.¹ Therefore, plaintiff’s suspensive appeal must be dismissed.

Although the suspensive appeal is dismissed, the appeal remains as devolutive. Allstate Ins. Co. v. La. Gas Service Co., 340 So.2d 698 (La.App. 4th Cir. 1976). The order erroneously granting the suspensive appeal in forma pauperis was signed within the delay allowed for a devolutive appeal and the appeal stands as devolutive notwithstanding the fact that the order for appeal did not mention a devolutive appeal. Ferina v. Howard, 285 So.2d 805 (La.App. 3rd Cir. 1973).

SUSPENSIVE APPEAL DISMISSED. APPEAL MAINTAINED AS DEVOLU-TIVE.

1 . La.C.C.P. Art. 5185:

“When an order of court permits a party to litigate without the payment of costs, until this order is rescinded, he is entitled to:

* * * Hi * *

“(4) The right to a devolutive appeal, and to apply for supervisory writs. He is not entitled to a suspensive appeal, . . .”