State ex rel. Marrero v. Patterson

64 So. 805, 134 La. 875, 1913 La. LEXIS 2235

Opinions

On Motion to Dismiss Appeal.

LAND, J.

Judgment was rendered below decreeing that certain sureties on the bond of the defendant were not good and sufficient, and ordering him to furnish, within the time required by law, bond with good and solvent surety as required by law. The judgment was rendered and signed on June 10, 1913.

On motion of the defendant, he was granted a suspensive appeal from the judgment, returnable on June 30, 1913, upon his furnishing bond in the sum of $100. The bond was furnished, and the transcript of appeal was filed in the Supreme Court on June 28, 1913. On the same day the district attorney filed a motion to dismiss the appeal on the ground that Act 14 of 1878 prohibits a suspensive appeal in such cases, and on the further ground that the transcript was filed two days before the return day.

No briefs have been filed in this case, and we might well treat the motion to dismiss ■as having been abandoned.

Section 2 of Act 14 of 1878 does not absolutely prohibit a suspensive appeal in a case like this, but allows such an appeal where the officer, whose bond has been declared insufficient, furnishes a new bond approved by the proper officers and by the judge within ten days after the rendition of the judgment.

The motion to dismiss does not negative the furnishing of a new bond by the defendant within the time prescribed by law.

[1,2] If, however, no suspensive appeal lies, the appeal may be maintained as devolutive. See Mestier v. Chevalier Pavement Co., 108 La. 562, 32 South. 520; Pelletier v. State Nat. Bank, 112 La. 564, 36 South. 592. The premature filing of the transcript furnishes no ground in law or reason for the dismissal of the appeal.

It is therefore ordered that the motion to dismiss be overruled.