On February 28, 1921, defendant moved for, and obtained, an order for both devolutive and suspensive appeals from a judgment rendered against him in favor of plaintiff for the sum of $3,000, with 8 per cent, per annum interest thereon from August 16, 1916, until paid, and 10 per cent, attorney’s fees on the principal and interest, and for all costs of suit. . The lower court, however, in granting the order, did not fix the amount of the bond for a devolutive appeal, but granted both appeals upon defendant’s furnishing bond “according to law.”
While defendant filed a bond under this order for a suspensive appeal, yet admittedly he did not file it within the time prescribed by law. 1-Ie, however, urges that the motion filed by plaintiff to dismiss the appeal should not be maintained, but should be denied upon the ground that the order and bond are sufficient to maintain the appeal as de-volutive.
[1] When a suspensive appeal is granted a defendant from a judgment condemning him to pay a specific sum of money, the court granting the appeal does not fix the amount of the bond, but that is fixed by law at an amount exceeding one-half of the judgment. Code of Practice, art. 575. When, however, the appeal is devolutive, the law does not fix the amount of the bond, but intrusts the fixing of it to the judge, for article 578 of the Code of Practice provides that:
“If the appeal be taken after the delays allowed by law for taking an (suspensive) appeal have expired, or if the appellant fail to furnish the security required in the preceding articles, such appeal shall not stay the execution of the judgment.
“But, in that case, no security shall be required, except to such an amount as the court may determine as sufficient to secure the payment of the costs.”
In our view, an order for a devolutive appeal granted upon condition that defendant furnish “bond with good and solvent surety, according to law,” does not comply with the requisites of the above article. When one looks to see what constitutes a devolutive appeal bond that is “-according to law,” he finds that it is one in which the amount is fixed by the judge, and that the law itself fixes none. It is true that the order describes the appeal as both suspensive and devolutive. If the order could be interpreted to mean that the bond fixed by law for a suspensive appeal should also serve as the amount of the bond for a devolutive appeal, this would answer. It, however, cannot be interpreted to convey that meaning.
In the case of Pelletier v. State National Bank, 112 La. 564, 36 South. 592, in which the appeal was from a judgment for money, and in which the judge fixed no amount for an appeal bond, this court dismissed the appeal. The court declined to maintain it as suspensive, because the bond was not for the amount fixed by law, and declined to maintain it as devolutive, because no bond had been fixed at all.
In Succession of Lynch, 124 La. 127, 49 South. 1002, where the appeal was from a *145judgment dismissing a petition to set aside tile probate of a will, and in which the appeal bond was fixed for the amount “required by law,” the court refused to maintain the appeal, and said, in substance, that the rule that no other bond will suffice than one fixed by the judge in those instances in which the law requires him to fix one is unbending. See, also, Day et al. v. Bailey et al., 116 La. 961, 41 South. 223.
In cases where the bond for a suspensive appeal is given in the amount fixed by the judge, but is not timely filed for such an appeal, but within time for one that is devolu-tive, then the bond will maintain a devolu-tive appeal, for the reason that the judge has fixed the bond and it is presumed to be for an amount sufficient to cover the costs. Succession of Keller, 39 La. Ann. 579, 2 South. 553; Keenan v. Whitehead, 15 La. Ann. 333. It, however, does not follow necessarily that a bond for a suspensive appeal, from a judgment for money, which is one fixed by the law for an amount exceeding one-half of the judgment, will be sufficient to cover costs; for, in computing the amount of such a bond, the costs of court are not considered by the judge. The two bonds are not only fixed differently — that is, one by the law and the other by the judge — but also each is fixed upon a different basis.
[2] While defendant does not contend that Act 112 of 1916 will extricate him by saving the appeal, or by affording him an opportunity to save it from dismissal, yet we may say that it will not. That act relates to the correction of errors in judicial bonds. It will not save from dismissal an appeal which is defective because there is no order fixing the amount of the bond.
While we regret to maintain the motion to dismiss, yet we see no alternative, under the Code of Practice.
For the reasons assigned, it is ordered, adjudged, and decreed that the appeal taken herein be dismissed at appellant’s costs.
O’NIELL, X, dissents and hands down reasons.