Opinion
No. 38368.
February 10, 1947.
Appeal from Civil District Court, Parish of Orleans; Harold A. Moise, Judge.
Action by Mr. and Mrs. Walter A. Redon against Mr. and Mrs. Paul M. Armstrong for cancellation of a lease and possession of leased premises. From a judgment for plaintiffs, defendants appeal. On motion to dismiss the appeal.
Motion sustained as to suspensive appeal and denied as to devolutive appeal.
Harold J. Winling and John J. Finnorn, both of New Orleans, for defendants-appellants.
Sidney G. Roos, of New Orleans, for plaintiffs-appellees.
O'NIELL, C. J., dissenting.
This case is before us for consideration of the appellees' motion to dismiss the suspensive appeal taken by the defendants-appellants from a judgment cancelling their lease and ordering them to vacate the premises leased to them by the plaintiffs, the motion being based on the insufficiency of the surety signing the appeal bond of $5,000.
It appears that when the defendants furnished bond in the amount of $5,000 in accordance with the order granting the suspensive appeal the sureties on the first two bonds were tested for solvency and found by the trial judge to be insufficient. The defendants then furnished a third appeal bond. This was also questioned and the surety found by the trial judge to be solvent to the extent of $2,000 only. The appellants failed to furnish additional security to cover the $3,000 discrepancy.
In answer to the motion the appellants admit that the last bond was held, on traverse, to be valid for only $2,000, but they ask that the appeal either be maintained under this amount as a devolutive appeal or that the matter be remanded to the lower court so that the trial judge may fix the bond applicable to a devolutive appeal.
Having failed to furnish the security required for the suspension of the execution of the judgment rendered in the lower court pending our determination of the matter, the appellants are not entitled to a suspensive appeal. Articles 565 and 575 of the Code of Practice. We are of the opinion, however, that inasmuch as the surety furnished is obviously sufficient to secure the payment of costs, the appellants are entitled to have the judgment complained of reviewed by this court. Article 578 of the Code of Practice.
For the reasons assigned the motion to dismiss the appeal is maintained in so far as the same stays or suspends the execution of the judgment appealed from, but it is denied as to a devolutive appeal.
O'NIELL, Chief Justice, dissents, being of the opinion that, in cases where an appeal bond is required by law, the appellant must furnish a bond for the amount fixed in the order of appeal, or for the amount determined by law in the cases where it is so determined. Citing Dwight v. Barrow, 25 La.Ann. 424.