Whittaker v. Vetsher, Inc.

Louisiana Court of Appeal

Whittaker v. Vetsher, Inc.

333 So. 2d 689, 1976 La. App. LEXIS 3464

Louisiana Court of Appeal·Decided June 9, 1976·No. No. 7811·Published·Cited by 1 cases

Opinion

ON MOTION TO DISMISS

STOULIG, Judge.

Appellee Vetsher, Inc., moved to dismiss the suspensive appeal of appellant, Robert V. Whittaker, based upon the representation that the bond posted was insufficient to maintain a suspensive appeal under C. C.P. art. 2124.

As pointed out by this court in the case of Reid v. Blanke, 200 So.2d 132 (1967), the procedure for testing the sufficiency of an appeal bond is clearly set out in C.C.P. art. 5123. Further the Code of Civil Procedure in Article 5125 prohibits the dismissal of an appeal on the insufficiency of the security unless the party who furnished it is afforded an opportunity to furnish a new or supplemental bond. Finally, under C.C.P. art. 2088(5) the trial court retains jurisdiction and is a proper forum to consider objections to the sufficiency of an appeal bond.

For the foregoing reasons the motion to dismiss this appeal is denied at mover’s cost.

MOTION DISMISSED.

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ON MOTION TO DISMISS

STOULIG, Judge.

Appellee Vetsher, Inc., moved to dismiss the suspensive appeal of appellant, Robert V. Whittaker, based upon the representation that the bond posted was insufficient to maintain a suspensive appeal under C. C.P. art. 2124.

As pointed out by this court in the case of Reid v. Blanke, 200 So.2d 132 (1967), the procedure for testing the sufficiency of an appeal bond is clearly set out in C.C.P. art. 5123. Further the Code of Civil Procedure in Article 5125 prohibits the dismissal of an appeal on the insufficiency of the security unless the party who furnished it is afforded an opportunity to furnish a new or supplemental bond. Finally, under C.C.P. art. 2088(5) the trial court retains jurisdiction and is a proper forum to consider objections to the sufficiency of an appeal bond.

For the foregoing reasons the motion to dismiss this appeal is denied at mover’s cost.

MOTION DISMISSED.

Whittaker v. Vetsher, Inc., 333 So. 2d 689, 1976 La. App. LEXIS 3464 (La. Ct. App. 1976).

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Opinion

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