Sharkey v. Bankston

22 La. Ann. 199

• Court: Supreme Court of Louisiana
• Decided: March 15, 1870
• Docket: No. 2726
• Status: Published

Opinion

Wyly, J.

A motion is made to dismiss this appeal: First — Because the -plaintiff, having abandoned her devolutive appeal, returnable the fourth Monday of February, 1869, and extended by this court for two weeks, can not take a second devolutive appeal after the lapse of the time to which the first appeal was extended. Second — Because the plaintiff filed in the court below, after the time had elapsed for the return of her first devolutive appeal, her formal abandonment of her appeal in writing. Third — Because the second order of devolutive appeal was granted in plaintiff’s name, after the abandonment of her first appeal, and after her death, one of the counsel having obtained the second order of appeal in her name, and signed her name to the appeal bond, just forty-five days after her death, in the Charity Hospital.

After the lapse of the time at which the first devolutive appeal was made returnable, and the extension granted by this court, there was evidently an abandonment of the appeal, and the plaintiff, if alive, could not legally get a second order of devolutive appeal and give a second appeal bond in the court below. C. P. 594; Roberts v. Benton, 1 R. 100; Jenkins v. Bond, 3 An. 339; Brickell v. Connor, 10 An. 235.

The appeal is therefore dismissed.