Jones v. Cusimano

511 So. 2d 486 | La. Ct. App. | 1987

ON MOTION TO DISMISS APPEAL

CIACCIO, Judge.

Plaintiff has appealed a judgment denying his petition for preliminary injunction. Within the fifteen day time period provided in La.C.C.P. Art. 3612, plaintiff complied with all requirements, including the payment of costs, for perfecting his appeal, except for the posting of an appeal bond. Defendants have moved for dismissal of the appeal because no appeal bond was given within fifteen days.

While this court has previously dismissed appeals under La.C.C.P. Art. 3612 for failure to post bond within fifteen days, Carmadelle v. Urrate, 359 So.2d 708 (La.App. 4th Cir.1978), we are persuaded by and adopt the reasoning of the Third Circuit Court of Appeal that the 1977 amendment to La.C.C.P. Art. 2124 dispensing with the requirement of a bond to cover costs for devolutive appeals had the effect of removing the requirement of posting a bond when a party wished to take a devolutive appeal under La.C.C.P. Art. 3612. Chapman v. Fisher, 370 So.2d 162 (La.App. 3d Cir.1979). The 1977 amendment to La.C. C.P. Art. 2124 applies to all appeals in which the order of appeal is granted on or after January 1, 1978. La. Acts of 1977, Act. No. 176. The dismissal ordered in Carmadelle v. Urrate, supra, applied to an orSer of appeal granted before January 1, 1978. In orders of appeal granted before January 1, 1978, the Third Circuit had also ordered dismissal for failure to timely post bond. State v. Robouche, 332 So.2d 600 (La.App. 3d Cir.1976); Collins v. Sweazie, 360 So.2d 920 (La.App. 3d Cir.1978). We now hold, as has the Third Circuit previously, that no bond is required for a devolutive appeal taken under La.C.C.P. Art. 3612 after January 1, 1978.

All other requirements for a devolutive appeal having been satisfied by appellants within fifteen days from the date of the judgment, we find that the appeal was perfected timely. The motion to dismiss is denied.

MOTION DENIED.