Panebiango v. Main Insurance Co.
Also decided on this docket: La. Ct. App. 1st Cir., March 2, 1964 162 So. 2d 133; La., May 15, 1876 28 La. Ann. 676; La. Ct. App. 3d Cir., October 17, 1977 350 So. 2d 1271; La. Ct. App. 4th Cir., June 21, 1974 293 So. 2d 536
Panebiango v. Main Insurance Co., 286 So. 2d 155 (La. Ct. App. 1st Cir. 1973).
Opinion text
SAMUEL, Judge. The only matter before us at this time is a motion to dismiss the appeal taken by the defendant. Plaintiff has filed the motion in this court seeking the dismissal solely on the ground “ . . . that the appeal bond furnished by appellant herein is not a valid bond because there is no power of attorney attached thereto and made part of said bond as is required by law . . . ” The bond in question is signed on behalf of the appellant by a person designated as an attorney-in-fact and on behalf of the bondsman, Northwestern National Insurance Company, also by a person designated as an attorney-in-fact. No power of attorney is attached to the bond, nor is any power of attorney contained in the record. This court is without authority to initially decide the issue presented. Under the pertinent articles of our Code of Civil Procedure, the motion must be addressed to the trial court which, even after the timely filing of the appeal bond, retains jurisdiction for the purpose of considering objections to the form, substance and sufficiency of the bond and of permitting the curing thereof. LSA-C.C.P. Arts. 2088, 5123, 5124 and 5126. Accordingly, the motion to dismiss the appeal is denied and dismissed. Motion dismissed.