Opinion
No. 13373.
February 11, 1980.
APPEAL FROM NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA, HONORABLE DANIEL W. LeBLANC, J. P.
Bert K. Robinson, Baton Rouge, for plaintiff-appellee John Prewitt Nelson, Jr.
John B. Noland and Donna W. Lee, Baton Rouge, for defendant-appellant Sally Stafford.
Before ELLIS, CHIASSON and PONDER, JJ.
Defendant appellee moves the court to dismiss the appeal of plaintiff appellant on the grounds that a suspensive appeal was granted and no bond has been timely filed.
Plaintiff is proceeding in forma pauperis and as such is entitled to litigate without payment of costs in advance or as they accrue. However, plaintiff is entitled only to a devolutive appeal. There is no suspensive appeal in forma pauperis. Therefore, plaintiff's suspensive appeal must be dismissed.
La.C.C.P. Art. 5185:
"When an order of court permits a party to litigate without the payment of costs, until this order is rescinded, he is entitled to:
"(4) The right to a devolutive appeal, and to apply for supervisory writs. He is not entitled to a suspensive appeal.
Although the suspensive appeal is dismissed, the appeal remains as devolutive. Allstate Inc. Co. v. La. Gas Service Co., 340 So.2d 698 (La.App. 4th Cir. 1976). The order erroneously granting the suspensive appeal in forma pauperis was signed within the delay allowed for a devolutive appeal and the appeal stands as devolutive notwithstanding the fact that the order for appeal did not mention a devolutive appeal. Ferina v. Howard, 285 So.2d 805 (La.App. 3rd Cir. 1973).
SUSPENSIVE APPEAL DISMISSED. APPEAL MAINTAINED AS DEVOLUTIVE.