Smith v. Vanhille

10 La. 252

• Court: Supreme Court of Louisiana
• Decided: September 15, 1836
• Status: Published

Opinion

Martin, J.,

delivered the opinion of the court. 1

B. Vanhille and Onezime Guidry, two of the defendants and appellees, have moved the court to dismiss the appeal, on a suggestion that the bond is given for a less sum than that fixed by the judge. J J °

# t The motion is resisted on an allegation, that, on the day preceding the one on which the court met, the appellant paid into the hands of the clerk a sum, which, added to the penalty of the bond given, makes it equal to the entire sum fixed by the judge in the order of appeal.

If the appeal Rond is defective amount or sum fucile,theappei-lee may have the appeal dismissed. cannot deprive the appellee of his right to a dismissal of the ao^posterLnvto service of citation.

The execution of a bond in the sum required by the order of the judge is a condition precedent, the performance of which is requisite before the allowance of the appeal becomes absolute. If it be not performed, the party, in favor of whom the judgment was rendered, need not take any steps to have it affirmed. He may content himself with pursuing the necessary means to have the appeal dismissed, J rJr

It is not in the power of the appellant to deprive the appellee of this advantage by any act posterior to the service 0f citation,

It is, therefore, ordered that the appeal be dismissed,