Statement of the Case.
MONROE, J.Defendant, Simpson, was arrested on June 12, 1908, under a warrant, issued by the justice of the peace for the-Fourth ward of the parish of Lincoln, directing the sheriff to bring him before the justice or the judge of the district court, and on June 24th, being then in jail, obtained an order from the judge of the district court for his release on a bond of $1,500. On June 26th the district attorney filed a bill of Information in the district court, apparently predicated upon the acts which constituted the basis of the previous charge, but containing a wholly different charge, whereupon a *311warrant was Issued from the district court, the return upon which reads:
“Received within warrant on June 26, and served same by arresting M. B. Simpson on June 27, 1908, whom I committed to jail at Vernon, Louisiana, and now have in my custody.”
On June 29th, without any further application on his part or judicial authority, Simpson gave bond (with J. C. Brown as surety) in the sum of $1,500, conditioned that he “shall * * * appear and attend on the first day of said court, at its nest regular term, beginning at Vernon on the 21st day of July, 1908, and at each successive term of said court, and shall there remain until discharged in due course of law and not depart therefrom without leave of the court first had and obtained,” etc., and he was thereupon released from custody. On July 21st, having been called in the district court and failed to appear, and his surety having failed to produce him, he and his surety were condemned, in solido, for the amount of the bond. On July 22d the surety moved to set aside the judgment so rendered on the grounds that the warrant was issued on the same day as the bill of information and given the same number (1,881) on the docket; that the return shows that defendant, by virtue thereof, was committed to jail; that the sheriff never thereafter obtained any authority to release him; that his action in releasing defendant was unauthorized by law; and that no legal liability against the surety on said purported bond, of any kind whatsoever, can flow therefrom.
To the motion so made the district attorney excepted, and for cause of exception alleged:
That the surety is a mere stakeholder, having had deposited to his credit the amount called for by the bond, and hence is without interest. That at the time of the execution of the bond the principal was in custody, that he obtained his release on giving the bond, and that he and his surety are therefore estopped to urge any informality or illegality in the bond.
On the trial of the motion the sheriff testL fled that he took the bond in question upon the authority of the order of June 24th, that he would not have accepted Brown as surety if the $1,500 had not been deposited in bank to his credit, and that he now looks to Brown as surety on the bond. There is no evidence as to the ownership of the money deposited. The minutes of the court (of July 22d) with reference to the final disposition of the matter read as follows: '
“Motion taken up for trial. Evidence adduced. Arguments heard and overruled. Final judgment rendered against M. B. Simpson, principal, and J. O. Brown, surety, in solido, in the sum of $1,500, with 5 per cent, interest from date. Judgment read and signed and filed in open court. * * * Counsel for surety, in open court, asks for and is granted his suspen-sive and devolutive appeal, returnable to the honorable Supreme Court of Louisiana on Monday, August 24, 1908. Suspensive appeal bond fixed as the law directs, and devolutive appeal in the sum of ($50) fifty dollars.”
A bond was given in the sum of $50 as for a devolutive appeal, and the appeal was lodged in this court on August 14, 1908.
Opinion — On Motion to Dismiss Appeal.
The state moves to dismiss the appeal, on the grounds:
(1) That it was not made returnable within ten days.
(2) That no devolutive appeal lies in a case such as this.
(S) That “there is no bond, as required by law, in quasi criminal forfeiture of criminal bonds.”
(4) That the surety is a mere stakeholder and the principal an absconder from justice, and the surety has no standing in court to defend this suit.
The motion to dismiss was filed more than two months after the transcript had been lodged in this court. We are of opinion that it comes too late. Motions to dismiss, predi*313cated upon alleged defects in the order of appeal or the bond given, must be filed within three days after the filing of the transcript. State v. Callac, 45 La. Ann. 27, 12 South. 119; Naghten v. His Wife, 48 La. Ann. 799, 19 South. 762; Gagneaux v. Desonier, 104 La. 651, 29 South. 282; In re Lindner, 113 La. 772, 37 South. 720.
Referring to the second ground relied on, it is true that no devolutive appeal will lie in a criminal case — and a proceeding to forfeit a bail bond is treated as a criminal proceeding in order to determine the question of jurisdiction in case of appeal (Marr’s Criminal Dig. p. 377) — in the sense that no appeal will lie if taken after the delay for the suspensive appeal, which the law allows, has expired. State v. O’Rourke, 49 La. Ann. 1567, 22 South. 818. But in this case the delay had not expired when the appeal, suspensive and devolutive, was granted, and the failure of the appellant to give the kind of bond required (by the order) to sustain the only appeal to which he was entitled is a matter of which the appellee should have complained within the three days following the filing of the transcript. Whether the appellant has sufficient interest to give him a standing in court is a matter that can be best determined upon considering the case on the merits. The motion to dismiss is therefore denied.