Opinion
No. 6418.
June 6, 1974.
APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, NO. 154-611, STATE OF LOUISIANA, HONORABLE FRANK V. ZACCARIA, J.
Peter J. Vernacti, New Orleans, for plaintiffs-appellees.
Lawrence J. Fritz, Lambert, Nowalsky, Lambert, New Orleans, for defendants-appellants.
Before REDMANN, BOUTALL and SCHOTT, JJ.
ON MOTION TO DISMISS SUSPENSIVE APPEAL
Appellees Maude Temento, wife of, and Sterling Temento have filed a motion to dismiss the suspensive appeal of appellant Manchester Insurance and Indemnity Company, on the ground that the suspensive appeal bond was untimely filed. Louisiana Code of Civil Procedure, Article 2123.
The record shows that trial was had on November 28, 1973 and on oral judgment was rendered in open court, the judgment being signed on November 29, 1973. A copy of the judgment was issued to appellants' attorney November 30, 1973. No motion for a new trial was made. Thereafter on December 17, 1973 appellants' attorney filed a motion for appeal and was granted a suspensive and a devolutive appeal. Unfortunately the appeal bond was not filed until January 14, 1974.
C.C.P. Art. 2123 requires not only that an appeal be taken within fifteen days of the expiration of the delay for applying for a new trial, but also that an appeal bond shall be filed within that period. We find the appeal bond was not filed within that period and the suspensive appeal should be dismissed. This however has no effect on the devolutive appeal which we consider to be timely perfected. Jackson v. Hannie, 225 So.2d 385 (La.App. 3rd Cir. 1969).
Accordingly, we maintain the motion to dismiss the suspensive appeal and it is now ordered that the suspensive appeal taken by appellant, Manchester Insurance and Indemnity Company, is dismissed.
Suspensive appeal dismissed.