118 So. 2d 901 | La. | 1960
On November 9, 1959, plaintiff secured a judgment of divorce against his wife and was awarded the custody and control of their three minor children, Junius Lee, Melenena and Linda Kaufman. Defendant was granted a suspensive appeal from this judgment.
Plaintiff has moved to dismiss the appeal, insofar as it suspends execution of that part of the judgment awarding him custody of the abovementioned children.
The motion is well founded. It is settled that a party appealing from a judgment affecting the custody of a child is not entitled to have execution stayed during the pendency of the appeal. The reason for this is that the child, being the ward of the court, is always subject to the authority of the judge having original jurisdiction. However, when a suspensive appeal has been granted inadvertently, as was evidently the case here, it is not dismissed in its entirety but is effective as a devolutive appeal. Downey v. Downey, 183 La. 424, 164 So. 160; Cressione v. Millet, 212 La. 691, 33 So.2d 198; Cox v. Cox, 212 La. 726, 33 So.2d 500; Wyatt v. Wyatt, 228 La. 77, 91 So.2d 775 and Wascome v. Wascome, 228 La. 607, 83 So.2d 644.
The appeal is dismissed insofar as it suspends the execution of the order awarding plaintiff the custody of his children. In all other respects, it remains in full force and effect.