Vacuum Oil Co. v. Cockrell

• Decision Date: 29 May 1933
• Docket Number: 32314
• Court: Louisiana Supreme Court
• Parties: VACUUM OIL CO. v. COCKRELL

148 So. 898

177 La. 623

VACUUM OIL CO. v. COCKRELL

No. 32314

Supreme Court of Louisiana

May 29, 1933

Appeal from Sixteenth Judicial District Court, Parish of St. Mary James D. Simon, Judge.

Suit by the Vacuum Oil Company against Ernest Cockrell. From a judgment for plaintiff, defendant devolutively appeals. On motion to dismiss appeal.

Motion denied.

Herold Cousin & Herold, of Shreveport, and Paul Kramer, of Franklin for appellant.

Cline Plauche & Thompson, of Lake Charles, for appellee.

ROGERS Justice. O'NIELL, C. J., dissent.

OPINION

ROGERS, Justice.

The court below rendered judgment in plaintiff's favor on March 4, 1932. The judgment was signed on March 7, 1932, and on the same day, but after the judgment was signed, the defendant moved for a suspensive and devolutive appeal, returnable to this court on or before April 18, 1932. The appeal was granted as prayed for, and bond for the suspensive appeal was fixed according to law and for thedevolutive appeal at the sum of $ 50. Defendant did not perfect either appeal by furnishing the required bond.

On March 7, 1933, defendant presented a petition for a devolutive appeal, and an order was signed granting the appeal, returnable to this court on March 27, 1933, and fixing the appeal bond at $ 300. The bond was signed the same day, and citations of appeal were duly issued and served. The transcript was filed in this court on the return day fixed in the order granting the appeal.

Plaintiff has filed a motion to dismiss the appeal on the ground that the order of appeal was improperly granted, the defendant not being entitled to a second appeal until he has formally withdrawn the first appeal.

Plaintiff relies on article 595 of the Code of Practice, which reads as follows, viz.: "But if the appellant wishes to withdraw his appeal before he has cited the appellee, he may be allowed to do so, on motion to the lower court; and in such case he may renew his appeal within the time herein above allowed."

But, before citation is issued to the appellee, the bond for the appeal, as directed by the court, should be furnished. Code Prac. art. 581. Whether the appeal be by petition or by motion, until the bond is furnished there is no appeal. And this is so no matter how many orders of appeal have been granted. Hence, until the bond is given, there is no appeal to be abandoned or withdrawn.

Resting on the principle that there is no appeal until the bond is given, irrespective of the number of orders of appeal that have been granted, and notwithstanding the apparently contrary...