No. 37863. Precedential Processed

Graziani v. Elder & Walters Equipment Co.

Louisiana Supreme Court · Filed June 5, 1945 · 22 So. 2d 841

Also decided on this docket: La., March 18, 1946 25 So. 2d 904

Cited by

Weber v. McMillan 277 So. 2d 470 La. Ct. App. 1st Cir. 1973
Dounson v. Faia 246 So. 2d 729 La. Ct. App. 1st Cir. 1971
Lakeside Rambler Sales, Inc. v. Durad Corp. 228 So. 2d 745 La. Ct. App. 1st Cir. 1969
Tiffie v. Tiffie 205 So. 2d 609 La. Ct. App. 1st Cir. 1967
Liberty Mutual Insurance v. Harrison 134 So. 2d 352 La. Ct. App. 1st Cir. 1961
Kitchen Center, Inc. v. Treigle 129 So. 2d 95 La. Ct. App. 4th Cir. 1961
Woods v. Woods 128 So. 2d 74 La. Ct. App. 3d Cir. 1961
Carlson v. Keathley 125 So. 2d 639 La. Ct. App. 1st Cir. 1961
Guizerix v. Schaubhut 116 So. 2d 367 La. Ct. App. 4th Cir. 1959
Cahee v. United States Casualty Co. 86 So. 2d 631 La. Ct. App. 1st Cir. 1956
Diamond Match Co. v. Moran 82 So. 2d 784 La. Ct. App. 5th Cir. 1955
Ramizest v. Ramizest 77 So. 2d 733 La. 1955

all 17 citing documents »

Authorities cited

Identified automatically; this list may not be exhaustive.

Cortez v. Cortez 175 La. 179
Thompson v. Jones 200 La. 437
Rowley v. Bird Island Trapping Co. 200 La. 442
2 So. 553 not in our corpus
16 So. 825 not in our corpus
State v. Murray 17 So. 832
Michenor v. Reinach 21 So. 552
State ex rel. Robinson Mineral Springs Co. v. King 22 So. 806
26 So. 475 not in our corpus
27 So. 678 not in our corpus
Succession of Watt 111 La. 937
Knoll v. Knoll 114 La. 703
Helmas v. Pailet 126 La. 497
Brinkman v. Succession of Posey 143 La. 924
Campbell v. F. Hollier Sons 4 So. 2d 101
Shepart v. Unity Industrial Life Ins. Co. 10 So. 2d 400

Opinion text

PONDER, Justice. The defendant moves to dismiss the plaintiff’s appeal on the ground that the bond fixed by the trial judge for a suspensive appeal was not filed within ten days from the date the judgment was signed. The plaintiff brought suit 'against the defendant seeking to recover a money judgment. On trial, the lower court gave judgment rejecting the plaintiff’s demands. The judgment was signed in open court on January 10, 1945. On January 17, 1945, the lower court executed an order granting the plaintiff a suspensive appeal returnable to thi,s Court on March 12, 1945, upon his furnishing bond in the sum of $250. The plaintiff furnished an appeal bond in the sum of $250 on February 14, 1945. The defendant contends that the appeal should be dismissed for the reason that the bond was not furnished within the time required to perfect a suspensive appeal, and that no order for a devolutive appeal was granted by the lower court. There could be no occasion for a suspensive appeal in this case for the reason that there is nothing to suspend. The judgment appealed from is merely a rejection of a money demand. Cortez v. Cortez, 175 La. 179 , 143 So. 41 ; Thompson v. Jones, 200 La. 437 , 8 So.2d 286 ; Rowley v. Bird Island Trapping Co., 200 La. 442 , 8 So.2d 288 ; 5 L.L.R. 278. The fact that the order of the lower Court granting the appeal designates it as suspensive is of no moment for the reason that the amount of the bond and the time within which it was filed determine the character of the appeal. Succession of John Keller and Wife, 39 La.Ann. 579 , 2 So. 553 ; Cortez v. Cortez, supra. In this case, the bond was not filed within the time required by Article 575 of the Code of Practice to perfect a suspensive appeal. However, it was timely filed for a devolutive appeal. It is well settled that this Court will not dismiss an appeal when the bond is not filed within the time prescribed for a suspensive appeal but is filed within the year. It will be sustained as devolutive. Succession of John Keller Wife, supra; Succession of Elizabeth Bey, 47 La.Ann. 219 , 16 So. 825 ; The Bank of Minden v. The Lake Bisteneau Lumber Co., 47 La.Ann. 1432 , 17 So. 832 ; Michenor v. Reinach, 49 La.Ann. 360 , 21 So. 552 ; State ex rel Robinson Mineral Springs Co., Ltd., v. King, 49 La.Ann. 1527 , 22 So. 806 ; Weil v. Schwartz, 51 La.Ann. 1547 , 26 So. 475 ; Schwan v. Schwan, 52 La.Ann. 1183 , 27 So. 678 ; Succession of Watt, 111 La. 937 , 36 So. 31 ; Knoll v. Knoll, 114 La. 703 , 38 So. 523 ; Helmes v. Pailet, 126 La. 497 , 52 So. 676 ; Brinkman v. Succession of Posey, 143 La. 924 , 79 So. 540 ; Thompson v. Jones, supra. *83 The plaintiff contends that there is no time limit fixed for the filing of suspensive appeal bonds in the Parish of Orleans. He points out that Act 163, sec. 6, of 1898, now set forth in Dart’s Code of Practice in Article 145.7 and Dart’s Louisiana General Statutes § 1504, applies only to the district courts other than the Civil District Court for the Parish of- Orleans. Under the provisions of Article 575 of the Code of Practice, the appeal must ,be perfected within ten days after the signing of'the judgment in order to suspend its execution. In order to perfect the appeal, the bond must be furnished within that delay. Campbell v. F. Hollier & Sons, La.App., 4 So.2d 101, 576 ; Shepart v. Unity Industrial Life Ins. Co., La.App., 10 So.2d 400 . We have therefore concluded that the appeal should be sustained as devolutive. For the reasons assigned, the motion to dismiss the appeal is denied.