Widow & Heirs of Beaird v. Russ

On Motion to Dismiss. The opinion of the court was delivered by Marr, J. Defendant, appellee, moves to dismiss, on the ground' that the appeal-bond is for a smaller-amount than that fixed by the-district court in granting the appeal. Where the judgment is for a sum of money, the law fixes the-amount of the bond to be given for a suspensive appeal by the party condemned. C. P. article 575. In all other cases, whether the appeal be suspensive or devolutive, it is the province of the judge to fix the amount. C. P. 574, 57C, 578. In this case plaintiff moved for a devolutive appeal, and, in the order granting it, the judge fixed the amount of the bond at $200. The-bond given and filed is for $150. The giving .oí- a bond for the amount fixed is a condition precedent to the perfection of the appeal; and as-that condition has not been complied with, the order of appeal has not become absolute. Glaze vs. Russell, 5 N. S. 238 ; Smith vs. Vanhilie, 10 La. 253 ; Duperron vs. Van Wickle, 1 Rob. 324 . The motion must prevail; and the appeal is accordingly dismissed.