Jurisprudence has established the rule that although the motion and order is for a suspensive appeal only, if the bond fixed is not filed within the delay for a suspensive appeal but is filed within the delay for a devolutive appeal, the appeal will be sustained and treated as a devolutive appeal. Succession of Garrett, 288 So.2d 659 (La.App. 3rd Cir. 1974). Under LSA-C.C.P. Article 2087, the delay for taking a devolutive appeal in the present case is within sixty days of the expiration of the delay for applying for a new trial, and thus is timely.
After a hearing on a motion to dismiss the appeal filed by plaintiff, we determined that the appeal should be maintained as a devolutive appeal. Succession of Garrett, 288 So.2d 659 (La.App. 3 Cir. 1974). The only issue presented here is whether a specific legacy in the above mentioned will makes plaintiff, Richard J. McNeely, the principal beneficiary of a trust affecting the home place and certain stocks, bonds and money left by the testatrix.
This is true notwithstanding the fact that the motion and order of appeal failed to include any mention of a devolutive appeal. R.E. Rabalais Son, Inc. v. United Bonding Insurance Company, 225 So.2d 23 (La.App. 3rd Cir., 1969); Joffrion v. Sears, Roebuck Company, 266 So.2d 563 (La.App. 3rd Cir., 1972); Succession of Willie Garrett v. R. W. Garrett, 288 So.2d 659 (La.App. 3rd Cir., 1974). Since we have dismissed the appellant's suspensive appeal, the question as to the sufficiency of the suspensive appeal bond is now moot.