Opinion
No. 21096.
October 21, 1957.
From a judgment of the First City Court of New Orleans, Sec. "B", No. 24,779, Charles V. Gonzales, J., defendant appealed. The Court of Appeal held that, under appeal statute relating to city courts to effect that appeal shall be allowed within ten days exclusive of Sundays, from the signing of the judgment, on giving bond according to law, in a sum exceeding by one half the amount of money judgments, in case of suspensive appeal, and in the sum to be fixed by the judge, in case of a devolutive appeal, and other than money judgments, where defendant had obtained an order for a suspensive appeal but did not file bond until thirteenth day after judgment was signed, bond was not timely filed and appeal would be dismissed.
Appeal dismissed.
Ricard Dejoie, Albion T. Ricard, Jr., New Orleans, for defendant-appellant.
Hurndon Weber, George W. Weber, New Orleans, for plaintiff-appellee.
This appeal by the defendant, Louisiana Life Insurance Company, Inc., emanates from the First City Court of New Orleans, wherein the plaintiff, Henry R. Charlot, recovered a money judgment against the defendant. The judgment of the First City Court was rendered on July 19, 1957, and signed on July 25, 1957. On August 6, 1957, the defendant obtained an order for a suspensive appeal but did not file the bond until August 9, 1957, the thirteenth day, exclusive of Sundays, after the judgment was signed. In view of the foregoing facts, the plaintiff contends that this appeal from the First City Court of New Or-leans should be dismissed since the bond was not timely filed.
The defendant, we believe, concedes that the suspensive appeal was tardy; however, it insists that the appeal may, nevertheless, be perfected as a devolutive appeal and cites in support of this assertion the case of Kelly, Weber Co., Inc., v. F. D. Harvey Co., 1933, 178 La. 265, 151 So. 201, a case in which the appeal emanated from a district court as distinguished from the First City Court of New Orleans, and which held that a tardy suspensive appeal from a district court may be perfected as a devolutive appeal. It appears to be well settled that appeals from the city courts must be perfected in conformity with LSA-R.S. 13:1971, which reads:
"Appeals shall be allowed within ten days, exclusive of Sundays, from the signing of the judgment, on giving bond, according to law, in a sum exceeding by one-half the amount of money judgments, in case of suspensive appeal, and in a sum to be fixed by the judge, in case of devolutive appeal, and other than money judgments."
Therefore, in cases appealed devolutively and/or suspensively from the city courts as distinguished from the district courts, the bond must be filed within ten days exclusive of Sundays from the signing of the judgment. Montaldo Ins. Agency, Inc., v. Bonck, La. App. 1950, 43 So.2d 555.
For the reasons assigned it is ordered that this appeal be and the same is hereby dismissed.
Motion sustained, appeal dismissed.