Orlando v. Reliance Homestead Ass'n.

On Motion to Dismiss Appeal. ROGERS, J. The plaintiff, Vincent Orlando, obtained a judgment in the district court, ordering the defendant, Reliance Homestead Association, to permit plaintiff, or his authorized agent, to examine its books and records. The defendant corporation, suggesting error and injury, appealed suspensively and devolutively from the judgment. Plaintiff has moved to dismiss the suspensive appeal, on the ground that there cannot be two appeals from one judgment between the same parties, and that the appellant has waived its right to a suspensive appeal. The record discloses that the appellant moved for and obtained from the judgment of the district court an order for “a suspensive and devolutive appeal” upon mover furnishing a bond for $100 for a suspensive appeal and a bond for $100" for a devolutive appeal, and that, in pursuance of the order of court, the appellant furnished two separate bonds of appeal for the designated amounts bearing *1029 the same ' date — one for the suspensive appeal, and the other for the devolutive appeal. There is no merit in appellee’s contention that, by perfecting the devolutive appeal, appellant waived the suspensive appeal. The order of court is the foundation of the appeal, and the order having authorized both a suspensive and devolutive appeal, it is of no consequence that the appellant executed, contemporaneously, two appeal bonds. In fact, this was the better practice so as to preserve the identity and duality of defendant’s appeal. Standard Cotton Seed Oil Co. v. Matheson, 48 La. Ann. 1322, 20 So. 713. The order of appeal obtained by the appellant was, in effect, an order granting alternative appeals. The order of appeal does not mean that appellant has two appeals, but that, if for any reason, the appeal should not stay execution, it shall nevertheless afford the appellant an opportunity to obtain the reversal or an amendment of the judgment. Code Prac. arts. 575-578; Lafayette v. Farr, 162 La. 385, 110 So. 624. In support of his motion to dismiss, the appellee cites Legget v. Potter, 9 La. Ann. 309. The cited case is not applieablé to the question presented in the instant case. There the appellant contented himself with taking a devolutive appeal only. The court stated that the procedure was irregular, unless by taking the devolutive appeal the appellant was to be regarded as having waived the ten days delay for the execution of the judgment. The court showed that the purpose of such delay was to give the party cast an opportunity to decide whether he would take a suspensive appeal, and, in case he should decide to do so, to allow him a reasonable time within which to procure his security and to perform other necessary acts. The court held that the delay was for the benefit of the judgment debtor, but, like any other privilege, it might be waived, and that it was virtually waived when the defendant obtained his devolutive appeal. In other words, that the appellant having elected, for reasons of his own, to take a devolutive appeal only, had waived a suspensive appeal, and could not complain that execution on the judgment prematurely issued. In the instant case, however, the appellant not only did not waive the suspensive appeal, but expressly applied for and obtained such an appeal, together with a devolutive appeal (in the alternative). For the reasons assigned, the motion to dismiss the appeal is denied.