On Motion to Dismiss.
This suit involves the title to and possession of lot No. A 14 in square No. 139, bounded by St. Claude, N. Liberty, St. Philip, and Ursuline avenue, in the city of New Orleans, measuring 18.2 feet front on N. Liberty street by a depth of 133.2 feet, and the rents and revenues of the said property from November 16, 1925. The court decreed plaintiff to be the owner of the property and entitled to the possession thereof and awarded plaintiff judgment for rent of the premises at the rate of $25 per month from January 13, 1927, to the date of the judgment, with legal interest thereon from said date. An order for an appeal in the alternative was granted, in which order the court fixed the bond for a suspensive appeal from the judgment at $300, and for a devolutive appeal therefrom, at $50. Appellant furnished the bond fixed by the court's order for a suspensive appeal. Appellee has filed a motion in this court to dismiss the appeal for the reason that the bond, fixed and given as aforesaid, is for an insufficient amount to operate as a suspensive appeal. Appellant has answered the motion to dismiss, and alleges that, in this class of cases, the trial judge is required by law to fix the amount of the appeal bond, and, if the bond is not sufficient, appellee's remedy is in the court below, in a procedure to have the bond increased.
The Legislature has provided the method by which defective appeal bonds may be corrected, and, in this state, an appeal will not be dismissed for insufficiency in the amount of the appeal bond, when the first and only complaint thereof is made in the appellate court. Act No. 112 of 1916.
The motion to dismiss is therefore overruled.
On the Merits.