Vivian State Bank v. Holcomb
Also decided on this docket: La. Ct. App. 1st Cir., March 10, 1971 245 So. 2d 551; La. Ct. App. 1st Cir., February 3, 1969 218 So. 2d 653; La. Ct. App. 1st Cir., January 11, 1904 1 Teiss. 83; La. Ct. App. 1st Cir., February 8, 1951 50 So. 2d 321
Vivian State Bank v. Holcomb, 127 So. 410 (La. Ct. App. 1st Cir. 1930).
Cited by
- Nomey v. State, Department of Highways 325 So. 2d 732 La. Ct. App. 2d Cir. 1976
- Wicker v. U. S. Fidelity & Guaranty Insurance 205 So. 2d 175 La. Ct. App. 1st Cir. 1967
- Cox v. Gross 47 So. 2d 102 La. Ct. App. 1st Cir. 1950
Authorities cited
Identified automatically; this list may not be exhaustive.
- Mitchell v. Shreveport Creosoting Co. 123 La. 957
- Smith v. Huie-Hodge Lumber Co. 49 So. 655
- Consolidated Ass'n of the Planters v. Mason 24 La. Ann. 518
- 144 La. 814 not in our corpus
- Succession of Ibos 81 So. 326
- Sears v. Bearsh 7 La. Ann. 539
Opinion text
WEBB, J. This cause is presented on a motion to dismiss the appeal on the ground that appellant failed to give an appeal bond and perfect the appeal. The record shows that an exception of no cause of action filed in the district court was sustained on October 5, 1927, and a formal decree dismissing plaintiff’s suit signed on May 5, 1928, at which time plaintiff obtained an order for a devolutive appeal, in which the amount of the appeal bond was fixed at $75, and the motion to dismiss the appeal is based on the fact that the record does not show that any bond was filed after the date on which the order of appeal was signed. However, the record shows that on April 5, 1928, there was an appeal bond filed with the clerk of the district court, and that on April 7, 1928, an order for a devolutive appeal was granted in which the appeal bond was fixed at $50, the amount of the bond filed on April 5. The motion to dismiss the appeal is opposed on the ground that the bond filed on April -5, 1928, should be considered in connection with the order of appeal of date May 5, 1928. It must be conceded that the order of appeal granted on April 7, 1928, was without effect (Mitchell vs. Shreveport Creosoting Co., 123 La. 957 , 49 So. 655 ; Hotard vs. Dupont, 1 La. App. 646 ; Consolidated Ass’n vs. Mason, 24 La. Ann. 518 ; Succession of Ibos, 144 La. 814 , 81 So. 326 ), and that the clerk was without authority to take or file the bond in the absence of a legal order granting the appeal (Sears vs. Boyd Bearsh, 7 La. Ann. 539 ), and we do not think the bond filed on April 5, can be considered as having perfected the appeal granted on May 5. The motion to dismiss the appeal is therefore sustained, and the appeal dismissed.