Shuff v. Wright

258 So. 2d 690, 1972 La. App. LEXIS 6577

Opinion

ON MOTION TO DISMISS APPEAL

DOMENGEAUX, Judge.

This case is before us on a motion to dismiss the appeal on the ground that the appeal bond has not been timely filed.

Article 2088 of the La.Code of Civil Procedure provides that the jurisdiction of the trial court is divested, and that of the appellate court attaches, upon the timely filing of the appeal bond in the trial court if a bond is required. Although the order of appeal signed by the trial judge specified a One Hundred and no/100 ($100.00) Dollar bond, the record contains no evidence that such bond was ever filed and the jurisdiction of this court has therefore never attached. Arnold v. Arnold, 217 La. 362, 46 So.2d 298; City of Baton Rouge v. Kiper, La.App., 96 So.2d 241.

The motion to dismiss presents the issue of whether the ninety (90) days granted appellant within which to file his bond by La.C.C.P. Art. 2087 have expired. We, however, have no power to determine that issue, since for the reasons hereinabove set out, we lack jurisdiction over the case.

Accordingly, the case is remanded to the district court for a determination of whether the time allowed for the posting of the appeal bond has indeed expired, and if so, for the rescission of its order of appeal.

Remanded.