
    NO. 8559
    COURT OF APPEAL PARISH OF ORLEANS
    JOE MODENBACH VS. MISS N. RUTH VAN SMOOTH AND ALFRED J. WESTON.
   Dinkelspiel; J.

On motion to dismiss this appeal on the following grounds:

—Sst. That said appeal was taken too late, the motion of api'eal and the appeal bond having been filed after the time allowed by law; Aot 138 of 1931 Jmsxxuaa&st. 333. for the -'¡eking of a suspensive and devolutive appeal,

2nd. That the appeal bond furnished by the defendants in this oase is no bond at all, for want of surety.

3rd. That defendants and appellants signed their surety for eaoh other, whioh is prohibited by law, and therefore the appeal oomes to this Court without bond.

The appellants in reply to the motion above referred to, files the following:

1st,. That said motion oomes too late-

* brief 2nd. That said motion is not aooonrpanied by/xsxxsaos&x as required by.the rules of this honorable Court, reoord

This/XUS was filed in this Court, February 13th, 1922. The motion to dismiss same was filed April 17th, 1922, and under the law and the authorities, the motion to dismiss oomes too late.

In Antonio Greco vs. Luigi Millano, 13 Ct. App. 137. the Court held:

"But the appeal in this case was made returnable on August 2nd, 1915. The motion to dismiss was filed October 7th, 1915. This was too late. A motion to dismiss an- appeal for want of an appeal bond must be made within three calendar days after the return date."

And authorities there cited.

In the case of Saxon vs. Southwestern Brick & Tile Mfg. Co., 113 La. p. 638, the syllabus reads:

"Motion to dismiss comes too late, if filed more than three days after filing of the trfcnscrlpt."

To the same effect is Monteleone vs. National Union Fire Insurance Company, 128th La. p. 426.

In the case of Askew vs. Parker, 131 La. p. 734, the same doctrine is announced.

And in the case of Bordes vs. Bank of St. Bernard, 141 Ann. at page 143, the syllabus reads:

"A motion to dismiss an apipe&l because of delay in filing the bond and of omissions from the transcript is b?.sed on mere irregularities, which cannot be considered, unless the Court's attention was oalled thereco within three days from the filing of the transcript."

For the reasons assigned, is is ordered, adjudged and deoreed, that the motion to dismiss be denied.

-Motion to dismiss denied-  