Southern Mosaic Tile, Inc. v. Alessi

Full title: SOUTHERN MOSAIC TILE, INC. v. MARION J. ALESSI D/B/A ALESSI

Court: Court of Appeal of Louisiana, First Circuit

Date published: Jun 29, 1981

402 So. 2d 225 (La. Ct. App. 1981)

Opinion

No. 14579.

June 29, 1981.

APPEAL FROM NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA, HONORABLE STEVE A. ALFORD, JR., J.

William D. Beck, Jr., Baton Rouge, for plaintiff-appellee Southern Mosaic Tile, Inc.

Patrick F. McGrew, Baton Rouge, for defendant-appellant Marion J. Alessi d/b/a Alessi.

Before COVINGTON, CHIASSON and LEAR, JJ.

CHIASSON, Judge.

Southern Mosaic Tile, Inc., plaintiff-appellee, has moved to dismiss the suspensive appeal on the ground that no timely appeal bond was filed by the defendant-appellant, Marion J. Alessi d/b/a Alessi. Appellant has answered the motion asking that the appeal be maintained as devolutive.

Judgment was rendered by the trial court and notice was issued on March 11, 1981. The order of appeal and the notice of appeal were signed and issued on April 9, 1981.

Appellant did not apply for a new trial and the delay expired on March 20, 1981. La.C.C.P. Art. 1974. The delay for obtaining a suspensive appeal and furnishing security expired on April 20, 1981. La.C.C.P. Art. 2123. The appeal bond was not furnished until April 23, 1981.

The timeliness of the signing of the order of appeal and the filing of the appeal bond is jurisdictional. An appellate court does not acquire jurisdiction of a suspensive appeal unless the order is obtained and the bond is filed within the prescribed time. La.C.C.P. Art. 2088.

Since the appellant did not timely perfect the suspensive appeal by the timely filing of security, the suspensive appeal must be dismissed. Cox v. Southern Colonial Inv., Inc., 393 So.2d 146 (La.App. 1st Cir. 1980).

Nevertheless, since appeal bonds are no longer required for devolutive appeals under La.C.C.P. Art. 2124, and appellant has fulfilled all the requirements for a devolutive appeal, we will maintain this appeal as devolutive. Cox, supra.

For these reasons, the motion to dismiss the suspensive appeal is granted at appellant's costs, but we retain jurisdiction to review this matter as a devolutive appeal. Appellant is entitled to the return of the security furnished.

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED.

DEVOLUTIVE APPEAL MAINTAINED.