Tolmas v. Tatum

330 So. 2d 357, 1976 La. App. LEXIS 3712

• Court: Louisiana Court of Appeal
• Decided: April 13, 1976
• Docket: No. 7710
• Status: Published

Opinion

BOUTALL, Judge.

This is an appeal from a judgment of eviction. Vernon Tatum, Jr., the defendant, has suspensively appealed the judgment. Plaintiff, Oscar J. Tolmas has moved to dismiss the appeal on the grounds that defendant did not file an answer asserting an affirmative defense verified by the oath of the defendant.

The record discloses that no answer was filed in this case. Defendant argues that he asserted his affirmative defense in testimony under oath at the trial. This argument has been considered by this court before and rejected. McMillan v. Cahuvin, 281 So.2d 181 (La.App. 4th Cir. 1973). The jurisprudence has consistently interpreted CCP Article 4735 ¹ as requiring an answer containing the affirmative defense verified by the oath of the defendant.

For the above reasons the suspensive appeal is dismissed at appellant’s cost.

SUSPENSIVE APPEAL DISMISSED.

1 . “Art. 4735. Appeal; bond

“An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an afirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspensive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.”