Lambert v. Labruyere

• Decision Date: 01 April 1963
• Docket Number: No. 1066,1066
• Citation: 151 So.2d 377
• Parties: John R. LAMBERT, Jr., d/b/a John R. Lambert, Jr., Contractor, v. E. P. LABRUYERE, Individually and as Director Department of Finance, Parish of Jefferson, State of Louisiana.
• Court: Court of Appeal of Louisiana — District of US

Page 377

151 So.2d 377

John R. LAMBERT, Jr., d/b/a John R. Lambert, Jr., Contractor, v. E. P. LABRUYERE, Individually and as Director Department of

Finance, Parish of Jefferson, State of Louisiana.

No. 1066.

Court of Appeal of Louisiana, Fourth Circuit.

April 1, 1963.

James F. Quaid, Jr., Metairie, for defendant-appellant.

John H. Jackson, Thomas P. McGee and Wallace C. Lebrun, Metairie, for relator-appellee.

Before YARRUT, SAMUEL and CHASEZ, JJ.

CHASEZ, Judge.

The question here presented for the Court's decision is whether a suspensive appeal taken by the Director Department of Finance for the Parish of Jefferson should be dismissed because of his failure to post an appeal bond in accordance with Article 2124 of the LSA-Code of Civil Procedure.

Appellee, a building contractor, originally obtained an alternative writ of mandamus ordering the Director Department of Finance to show cause why certain sums of money should not be paid pursuant to a contract between appellee and the Parish of Jefferson. After a hearing in the lower court, judgment was rendered making the alternative writ peremptory, and ordered the Director to pay appellee the sum of $17,284.00, plus court costs. The Director filed a motion for a suspensive appeal in which he suggested that LSA-R.S. 13:4581 relieved him of the responsibility of posting an appeal bond. The trial judge granted the Director a suspensive appeal without bond. Hence, appellee has filed this motion to dismiss the appeal.

The general rule provides that a litigant who seeks to appeal suspensively from a money judgment must furnish security which exceeds by one-half the amount of the judgment plus accrued interest LSA-C.C.P. Art. 2124. Appellant, however, contends that he is exempt from this requirement by LSA-R.S. 13:4581, which provides that:

'State, parish and municipal boards or commissions exercising public power and functions shall not be required to furnish any appeal bond; or any other bond whatsoever in any judicial proceedings instituted by or brought against them.'

On the other hand, appellee contends that the Director of the Department of Finance for the Parish of Jefferson does not benefit from this statutory exemption because he is not included in the phrase 'boards or commissions.'

We are of the opinion that appellee's motion to dismiss should be denied. A search of the jurisprudence reveals that a liberal interpretation has been given the phrase 'State, parish and municipal boards or commissions * * *.' in the statute in question and its predecessor, Act 173 of 1902. In Town of Kenner v. Zito, 13 Orl.App. 465, reversed on other grounds, 141 La. 76, 74 So. 636, the court held that Act 173 of 1902 relieved an incorporated municipality of the responsibility of posting an appeal bond even though the act ostensibly applied only to boards or commissioners. The court reasoned as follows:

'Act 173 of 1902, p. 327, provides that State, Parish, and Municipal Boards exercising public powers or administering public functions shall not be required to furnish any bond whether of appeal or otherwise in any judicial proceeding instituted either by or against said board.

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