No. 32314. Precedential Processed

Vacuum Oil Co. v. Cockrell

Louisiana Supreme Court · Filed May 29, 1933 · 148 So. 898

Cited by

Hyde v. Sims 61 So. 2d 881 La. 1952
Rosier v. Good Pine Lumber Co. 59 So. 2d 826 La. 1952
La Rue v. Adam 55 So. 2d 585 La. Ct. App. 1st Cir. 1951
Louisiana Power Light Co. v. Mosley 18 So. 2d 210 La. Ct. App. 2d Cir. 1944
Sandfield Oil Gas Co. v. Paul 7 So. 2d 725 La. Ct. App. 1st Cir. 1942
Bannister v. Chisesi Longo 5 So. 2d 145 La. Ct. App. 1st Cir. 1941
Campbell v. F. Hollier Sons 4 So. 2d 101 La. Ct. App. 1st Cir. 1941
Horton v. Western Union Telegraph Co. 200 So. 44 La. Ct. App. 1st Cir. 1941
Police Jury of Parish of St. James v. Borne 190 So. 124 La. 1939
Durrett Hardware & Furniture Co. v. Howze 174 So. 205 La. Ct. App. 1st Cir. 1937
Genco v. Union Berry & Truck Ass'n 166 So. 888 La. Ct. App. 1st Cir. 1936

Authorities cited

Identified automatically; this list may not be exhaustive.

20 La. Ann. 236 not in our corpus
27 La. Ann. 243 not in our corpus
Bowie v. Davis 33 La. Ann. 345
Upton v. Adeline Sugar Factory Co. 109 La. 670
Natchitoches Ry. & Const. Co. v. Henry 33 So. 725
Durand v. Landry 118 La. 711
Board of Liquidation v. City of New Orleans 43 So. 307
Gresham v. Collier 128 La. 143
Urania Lumber Co. v. Haddox 161 La. 227

Opinion text

ROGERS, Justice. The court below rendered judgment in plaintiff’s favor on March 4, 1932. The judgment was sighed on March 7, 1932, and on the same day,'but after the judgment was signed, the defendant moved for a suspensive and devolutive appeal, returnable to this court on or before April IS, 1932. The appeal was granted as prayed for, and bond for the suspensive appeal was fixed according to law and for the devolutive appeal at the sum of $50. Defendant did not perfect either appeal by furnishing the required bond. On March 7, 1933, defendant presented a petition for a devolutive appeal, and an order was signed granting the appeal, return *625 able to this court on March 27, 1933, and fixing the appeal bond at $300. The bond was signed the same day, and citations of appeal were duly issued and served. The transcript was filed in this court on the return day fixed in the order granting the appeal. Plaintiff has filed a motion to dismiss the appeal on the ground that the order of appeal was improperly granted, the defendant not being entitled to a second appeal until he has formally withdrawn the first appeal. Plaintiff relies on article 595 of the Code of Practice, which reads as follows, viz.: “But if the appellant wishes to withdraw his appeal before he has cited the appellee, ha may be allowed to do so, on motion to the lower court; and in such ease he may renew his appeal within the time herein above allowed.” But, before citation is issued to the appellee, the bond for the appeal, as directed by the court, should be furnished. Code Prac. art. 581. Whether the appeal be by petition or by motion, until the bond is furnished there is no appeal. And this is so no matter how many orders of appeal have been granted. Hence, until the bond is given, there is no appeal to be abandoned or withdrawn. Resting on the principle that there is no appeal until the bond is given, irrespective of the number of orders of appeal that have been granted, and notwithstanding the apparently contrary doctrine of a few old cases cited by plaintiff, the jurisprudence of the state, as it presently exists, properly upholds the right of an appellant who has obtained an order for both a suspensive and devolutive appeal, and has perfected neither by giving bond, to apply for and obtain, within the year, ¿nother order for a devolutive áppeal. See Mortee v. Edwards, 20 La. Ann. 236 ; Bank of America v. Fortier, 27 La. Ann. 243 ; Bowie v. Davis, 33 La. Ann. 345 ; Upton v. Adeline Sugar Factory, 109 La. 670 , 33 So. 725 ; Durand v. Landry, 118 La. 711 , 43 So. 307 ; Gresham v. Collier, 128 La. 143 , 54 So. 590 ; Urania Lumber Co., Ltd., v. Haddox, 161 La. 227, 108 , So. 463. For the reasons assigned, the- motion to dismiss the appeal herein is denied. O’NIELL, C. J., dissents on the ground that the filing of the appeal bond divests the trial court of jurisdiction.