
    No. 5447.
    Albert B. Edgerly, Executor of John Marshall, deceased, v. W. G. Smith.
    'Where the minutes of the court below do not show that the order was allowed on the motion for an appeal, but where it is stated elsewhere in the record by the judge that he did grant tho order, this court will not bo disposed to make an appellant suifer for such neglect of duty by the clerk of the court a qua.
    
    "Where a suspensive appeal was allowed, hut the bond was not filed until more than ten judicial days after the judgment was signed;
    Held — That the "bond being for the amount fixed by the judge, tho only penalty incurred by the appellant was the right of the appellee to issue execution, the appeal operating simply as a devolutive one. The ex parte order setting aside the appeal, under the circumstances, did not divest this court of jurisdiction.
    APPEAL from the Fifth District Court, parish of Orleans. Cullorn, APPEAL J.
    
      E. E. Craig, for plaintiff and appellee. F. McGloin, for defendant and appellant. ■
   Howell, J.

We are asked to dismiss this appeal on the grounds:

First — That there is no order of appeal or return day fixed by the court below.

The motion for an appeal with the usual order appended is in the record and we might consider this insufficient, as we have before held, because the minutes of the court below should show that the order was allowed ; but in this case we find it stated elsewhere in the record by tbe judge, that he did grant the order, and we are not disposed to make an appellant suffer for such neglect of duty by the clerk of the district court.

Second — -The suspensive appeal taken by the appellant was dismissed by the lower court and no subsequent appeal has been taken.

A suspensive appeal was allowed, but the bond was not filed until more than ten judicial days afterthe judgment was signed. The bond being for the amount fixed by the judge, the only penalty incurred by the appellant was the right of the appellee to issue execution and the appeal to operate simply as a devolutive one. The ex parte order setting aside the appeal, under the circumstances, did not divest this court of jurisdiction.

The third ground is the corollary of the others and is of no avail.

The motion is refused.

On the merits we see no reason for disturbing the judgment. It was rendered on default and we think the evidence sustains the confirmation thereof. The court a qua did not err in refusing the evidence o.ffered on the hearing of the rule for a new trial.

Judgment affirmed.  