Cognevich v. Blazio

OVERTON, J. In both of these consolidated cases, John Cognevich, individually and as natural tutor of his minor children, and Sarah Munstermann obtained an order on July 13, 1922, for a suspensive appeal from a final judgment rendered against them on June 30th of that year. The bond was fixed at $1,000. The appellees then filed a rule in the court below to dismiss the appeal on the ground that the order was granted after the expiration of the delay for taking a suspensive appeal. No disposition seems to have been made of the rule. The bond for the suspensive appeal was not furnished, and on August 25, 1922, Cognevich, individually, and as natural tutor, and Mrs. Munstermann obtained an order for a devolutive appeal from the judgment against them. The bond for this appeal was fixed at $400, and was furnished. The transcript was filed in this court before the expiration of the return day fixed in the order granting the devolutive appeal. The appellees now contend that the order for a devolutive appeal was improvidently granted by the court below,.since appellants, by obtaining an order for a suspensive appeal, and by failing to perfect it by furnishing the bond required therefor, when they were able to furnish it, and by failing to file the transcript under the order for that appeal, have lost their right of appeal altogether by abandonment. They further contend that evidence should be taken on the ability of the appellants to furnish the suspensive appeal bond; that the ease should be remanded for that purpose; and, moreover, that it should be remanded for the reason that the lower court is the proper tribunal to determine the question as to whether appellants have lost their right [1023] to a devolutive appeal by failing to perfect the suspensive appeal granted; and that this court is without jurisdiction to determine that question. Should we hold, how,ever, that we are vested with power to determine that question, then appellees move that we dismiss the appeal on the ground of its abandonment. It is immaterial whether the appellants were able to furnish the suspensive appeal bond or not, and, therefore, the question presented involves nothing more ' than one of law that may be determined from the face of the record. It is clear that this court is vested with full power to decide the question, and is the proper tribunal to do so; and, hence, from no standpoint is it necessary, or even proper, to remand the case. It is equally clear that one, by obtaining an order for a suspensive appeal, does not, upon failure to perfect that appeal by filing the required bond, abandon his right to a devolutive-appeal. Daniel & James D. Edwards v. Marin, 28 La. Ann. 567; Barrow v. Pope & Brown, 28 La. Ann. 459. One desiring to appeal may obtain, even in the same, which is common practice, or in (jifferent orders, both a suspensive and a devolutive appeal, and perfect either at his option. Funke v. McVay, 21 La. Ann. 192. For the reasons assigned, the motion is denied.