McGuirk v. Marchand

On Motion to Dismiss. The opinion of the court was delivered by Fbnner, J. The first ground of the motion is incompleteness of the transcript by reason of tbe omission therefrom of the written opinion of the court. Before submission of the motion appellant filed a certified copy of the missing document. This is sufficient, and there was no necessity for resorting to certiorari. City vs. Parlange, 25 An. 336. The other grounds will be better understood after the following statement: The judgment being for $2160, appellant applied for and obtained an order of appeal “ on giving bond according to law.” He filed a bond “in the sum of-hundred dollars,” not filling in the blank before the word “hundred.” Thereupon the plaintiff took a rule to show cause why execution should not issue on the ground that such a bond did nob operate to perfect a suspensive appeal. As a matter of course the rule was made absolute. Thereupon defendant moved for a devolutive appeal, referring to the fact That the former order of appeal did nob operate as such because it did not fix the amount of the bond to be given as required by law. The court granted the order for a devolutive appeal and fixed the amount of the bond, which was accordingly given. The return day in both orders is the same and the transcript was filed in due time. We are disposed to consider that the bond filed under the first order was no bond at all and did not operate to divest the jurisdiction of the court, in which case no question could arise as to the right of the court to grant the second order of devolutive appeal. If, however, we should treat the first bond as one for a hundred dollars and as given for a suspensive appeal, which is the only appeal authorized by the order, the court retained the unquestioned power to pass upon the sufficiency of the bond, and, on finding it insufficient, to set aside the appeal and direct execution to issue as it did. The effect of this was to destroy the first suspensive appeal, and if, notwithstanding the order, the transcript had been brought *734 here under that order, we should have had nothing to do but to dismiss his appeal. Baker vs. Schultz, 35 An. 524; Weiser vs. Blaese, 34 An. 833; Dumas vs. Mary, 29 An. 808; Happenbauer vs. Durlin, 23 An. 739. It is equally well settled that the dismissal of a suspensive appeal for want of a sufficient bond does not deprive the party of the right to take a devolutive appeal thereafter. Johnson vs. Clark, 29 An. 762; Verges vs. Gonzales, 33 An. 414. We conclude that the judge a quo had full authority, from every point of view, to grant the second order of devolutive appeal, and appellant having complied with it is fully protected. The motion to dismiss is therefore denied.