
    Delories COTAYA, Wife of/and Noel T. Cotaya v. LOUISIANA HEALTH SERVICE & INDEMNITY COMPANY and Melvin Hoerner.
    No. 9532.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1978.
    William L. Dehner, Harvey, for plaintiff-appellant.
    Harry S. Hardin, III, New Orleans, for defendant-appellee.
   ON MOTION TO DISMISS

This matter is before us on a motion to dismiss the appeal, initially raised by this Court and reurged by appellee by a memorandum in support of the Court’s motion:

On November 23, 1977 the trial court sustained an exception of no cause of action. Under Code of Civil Procedure Articles 1974 and 2087 appellants could have perfected a devolutive appeal by January 31, 1978. A motion for a devolutive appeal was signed on December 15, 1977. No appeal bond, however, was ever filed. On February 15, 1978 the appeal order was amended so as to eliminate the appeal bond, but of course this date was two weeks after the last day to perfect the appeal.

Under these circumstances, we have no choice but to dismiss the appeal. During the sixty days allowed to perfect the appeal, the appellants failed to post the bond then required by Article 2087 of the Code of Civil Procedure, nor did they pay the estimated costs. Cf. Bacmonila Garden Apartment, Inc. v. Williams, 355 So.2d 288 (La.App. 4th Cir. 1978). (Estimated costs in this case were not paid until March 10, 1978.)

Appellants urge us to interpret Act 176 of 1977 amending Article 2124 of the Code of Civil Procedure to eliminate security for a devolutive appeal, to have the same effect as though the order for a devolutive appeal were signed after January 1, 1978 but before January 31, 1978, thus avoiding a claim of denial of equal protection.

This is simply not a case which gives rise to a claim of equal protection, as all parties who are similarly situated (where order of appeal granted before January 1, 1978 and time for appeal expires after that date) are being treated the same.

As far as the interpretation of Article 2124, as amended, is concerned, the legislature has made its meaning very clear when it provided in connection with the amendment the following:

“Section 4. The effective date of this Act is January 1, 1978; the provisions hereof shall apply to all appeals in which the order of appeal is granted on or after the effective date hereof." (Emphasis supplied) Acts 1977, No. 176, § 4.

This language is clear and permits of no other interpretation.

Accordingly, the appeal is dismissed.

LEMMON, Judge,

concurs and assigns reasons.

My initial impression was that Act 176 of 1977 by its terms did not relieve appellant from furnishing security, but the spirit of the act did. However, the rationale underlying the amendment of C.C.P. art. 2124 was that security was that security was no longer necessary for devolutive appeals because C.C.P. art 2126 (as amended in 1976) required the appellant to pay the estimated costs of appeal within 20 days of the appeal. In this case the appellant, besides not furnishing security timely, did not pay the estimated costs within the required time, and his appeal is not saved by either the terms or the spirit of the 1977 act. 
      
      . Since the function of security is to secure the payment of costs, and the 1976 amendment to C.C.P. art. 2126 required payment of costs within 20 days of the appeal, the appellant was required both to pay and to furnish security for payment of the same costs. Act 176 of 1977 eliminated the requirement of furnishing security.
     