On Motion to Dismiss.
GODCHAUX, J.The defendant tenant applied for and obtained an order for a suspensive appeal, the amount of bond being fixed in the order by the Judge of the lower court. The defendant, however, furnished, in the amount ordered, the ordinary form of suspensive appeal bond instead of the form required for suspensive appeals in cases of this character under Revised Statutes, Section 2157.
Plaintiff has moved to dismiss the appeal on this ground, as well as upon the ground that the appeal was tardily applied for and obtained, having been secured several days after rendition of the judgment appealed from.
An examination of the bond discloses that it is the ordinary form of suspensive appeal bond, and does not contain the conditions prescribed by said section, and *448this is fatal to the appeal in so far as it purports to be suspensive.
May 16, 1910Mengalle & Co. vs. Abadie, 45 An. 676; Audubon Hotel Co., Ltd. vs. Braunig, 119 La. 1070.
While it is conceded by appellee that in ordinary cases an appeal will be maintained as devolutive though dismissed as suspensive where the amount of the appeal bond, though insufficient, is fixed by the lower Court and is furnished accordingly, still appellee maintains that this rule does not apply in ejectment cases prosecuted under the Statute.
This position cannot be sustained for the statute requires no special form of devolutive appeal bond; and, if a suspensive appeal bond is sufficient in form, as conceded, for a devolutive appeal bond in ordinary cases, it must be held sufficient in this case to sustain the appeal as devolutive. In fact, Revised Statutes, Sec. 2157, deals exclusively with the form of bond required for a suspensive appeal, and neither takes away the right to a devolutive appeal, nor prescribes any rules with reference to the form of bond in such cases.
The Court conceives that this has now been well established by repeated adjudication.
State ex rel. Lamouraine vs. Judge, 45 An. 1316; Mengalle & Co. vs. Abadie, 48 An. 669; Audubon Hotel Co., Ltd. vs. Braunig, 120 La. 1089.
The second ground for dismissal — namely, that the appeal was taken too late need not be considered, for, in any event, the order of appeal was granted in sufficient time to sustain a devolutive appeal.
It is, therefore, ordered that the appeal, in so far as it is suspensive, be dismissed and that said appeal be now maintained solely as a devolutive appeal.