
    Mrs. F. Perilliat v. A. Fernandez.
    The right of deciding into the sufficiency of the surety on an appeal bond, and of deciding whether the appeal shall be suspensive or devolutive, is exclusively within the province of the court from which the appeal is taken.
    Appeal from the Fifth District Court of New Orleans, Eggleston, J.
    
      E. Bermudez, for plaintiff. E. Filleul, for defendant and appellant.
   On a motion to dismiss the appeal as suspensive :

Buchanan, J.

This motion is founded upon the insufficiency of the amount of the bond for a suspensive appeal.

Its amount was fixed by the order of the Court below. ,It is therefore good for a devolutive, even if not for a suspensive, appeal; on which last point we do not express an opinion.

It is not the practice, of this Court to decree a qualified dismissal of an appeal, such as this rule calls for. Such a decree would be tantamount to an order that execution issue, notwithstanding and pending the appeal. It is well settled, that an application for an order of that sort must be addressed to the Court which has rendered the judgment, and not to the appellate Court. 2 Robinson, 551.

Indeed the rule states, and the record shows that an application for execution by rule to show cause was made to tlie Court below, after this appeal was taken ; upon which application there was a judgment. From that judgment there was no appeal taken ; and we cannot review it,“under the appeal previously granted. 9 La. R. 579.

Rule discharged.  