Bowie v. Davis

On Motion to Dismiss. The opinion of the Court was delivered by Levy, J. Appellee moves to dismiss this appeal on the following-grounds: 1st. Because appellant obtained on November 5th, 1880, on motion-in open court, an order for both a suspensive and devolutive appeal,., returnable to the Supreme Court on the 2d Monday of November, 1880,. and failed to file the record in this Court on said return day, or within three judicial days thereafter, which failure operated an abandonment of said appeals, both suspensive and devolutive, and for this reason, the • second devolutive appeal, taken by petition by appellant on 10th July, 1880, was illegal and of no effect, the judgment appealed from having-become final and irrevocable by said abandonment. 2d. Diminution of record. By consent of parties, the second ground has been abandoned. “ The inability or the omission of the plaintiff to furnish a bond andfulfil the condition precedent on which a suspensive appeal was granted,, did not preclude the party from applying within the year for a devolutive appeal. The jurisdiction of this Court attaches only when the-bond is filed.” 2 An. Gibson vs. Selby, 630. See, also, 15 An. 592; 20 An., Mortee vs. Edwards, 236. *348 “ Appellant gave no bond under the order for a suspensive appeal, 'but gave bond after getting an order for a devolutive appeal. This was not an abandonment of an appeal. There is no appeal until the bond is given, it matters not how many orders of appeal have been granted.” Bank of America vs. Fortier, 27 An. 244. The motion to dismiss is denied.