Helmas v. Pailet

On Motion to Dismiss the Appeal. BREAUX, C. J. Plaintiffs brought this suit for trespass and they claimed damages in the sum of $5,000. The case was tried by jury, and verdict was found in favor of defendant. On this verdict, judgment was rendered on the 15th day of December, 1909, and signed on the 17th of the same month. The plaintiffs applied for an appeal. The order granting them an appeal, sus-pensive and devolutive, was signed on the 22d day of December, 1909. The appeal was made returnable on the 10th day of January, 1910. On that day, the transcript was filed. The defendant and appellee moves to dismiss the appeal on the ground alleged: That as the judgment was rendered in favor of defendant and signed on the respective dates before mentioned, and as the bond of appeal [499] was not filed until December 29, 1909, the appeal should be dismissed. Considering the motion to dismiss the sus-pensive appeal. Suspensive appeals may be taken within 10 days after the judgment has been signed, excluding Sundays. Code Prae. art. 575. Deducting December 19th and 26th (Sundays) two days, the time for a suspensive appeal had not elapsed. If the aj>peal were dismissed because not timely taken for a suspensive appeal, the success of the mover would amount really to nothing. Beyond question the plaintiffs were within time to take a devolutive appeal. The bond was furnished in the amount required by the judge a quo. The appeal is good as devolutive if filed after the 10 days. Reed v. His Creditors, 37 La. Ann. 907; Successions of Keller, 39 La. Ann. 579, 2 South. 553; Chaffe v. Carroll, 34 La. Ann. 122; Dwight v. Barrow, 25 La. Ann. 424. The appeal was timely taken for a suspen-sive appeal. Motion to dismiss the appeal is therefore overruled.