Opinion
No. 2233.
October 27, 1967.
APPEAL FROM NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, GUY E. HUMPHRIES, JR., J.
Provosty, Sadler Scott, by Richard B. Wilkins, Jr., Alexandria, for plaintiff-appellant.
Dragon Kellner, by Robert A. Dragon, Jr., Lafayette, for defendant-appellee.
Gold, Hall Skye, by John F. Simon, Alexandria, for 3rd party defendant-appellee.
En banc.
ON MOTION TO DISMISS APPEAL OR REMAND TO DISTRICT COURT
The defendant appellee has filed a motion to dismiss this appeal or to remand the case to the district court. The first grounds alleged in support of the motion is that the clerk of the trial court did not mail to counsel for defendant appellee a notice that the plaintiff appellant had obtained an order for a devolutive appeal. This argument has no merit. The pertinent article, LSA-C.C.P. Article 2121, expressly states that "The failure of the clerk to mail the notice does not affect the validity of the appeal."
The next argument is that the appellee "has been denied opportunity to obtain copies of the amount of appeal bond required by the court below or establish to its satisfaction the question of whether or not the surety to that bond, even if sufficient is solvent." The answer to this contention is that the trial court retains jurisdiction of this case to test the sufficiency of the bond or the solvency of the surety, LSA-C.C.P. Article 2088. If the defendant appellee desires to raise these issues he may do so in the trial court under the procedures set forth in LSA-C.C.P. Articles 5123-5126.
The remaining arguments address themselves to the merits of the case and are not grounds to dismiss the appeal.
For the reasons assigned, the motion to dismiss the appeal, or to remand the case, is denied.