Reynolds v. Reiss

81 So. 884, 145 La. 155

Opinions

On Motion to Dismiss Appeal.

SOMMERVILLE, J.

[1] March 15, 1916, plaintiff obtained an order for a devolutive appeal, returnable to tbe Court of Appeal, parish of Orleans, on furnishing bond in the sum of $25. The bond was not furnished, and the appeal was not consummated.

March 21, 1916, plaintiff alleged in the district court that he had erred in moving for an appeal to the Court of Appeal, and he asked for and obtained an order of appeal to the Supreme Court.

Defendants allege that plaintiff and appellant abandoned his appeal to the Court of Appeal, and is therefore precluded from attempting to prosecute thereafter another appeal in the same matter, and ask that the appeal to this court be dismissed.

The first appeal to the Court of Appeal was never consummated by the filing of the bond named in the order of appeal. The district court retained jurisdiction of the matter, and it was within the power of said court to correct the error which had been made, and on motion of plaintiff to make the appeal returnable to the Supreme Court The first order of appeal was a nullity, as it granted the appeal to a court without jurisdiction, although the appeal might have been saved under the terms of Act 19, 1912, p. 26.

On the authorities of Jackson v. Michie, 33 La. Ann. 725, McWilliams v. Michel, 43 La. Ann. 986, 10 South. 11, and Yallee v. Hunsberry, 108 La. 136, 32 South. 359, the motion to dismiss the appeal is denied.