Guilliot v. City of Kenner 313 So. 2d 866

BOUTALL, Judge.

The original proceeding herein is a civil suit seeking to enjoin the enforcement of a criminal ordinance of the City of Kenner. At the trial it was stipulated that the rule nisi for preliminary injunction and the merits of the case for a permanent injunction would be tried at the same time and that the judgment to be rendered would be considered the judgment on the merits. The trial court refused to enjoin the enforcement of the ordinance, and plaintiff has appealed.

In examining the record, we noted that the appeal bond furnished herein is unsigned by either principal or surety, and that the affidavits of principal and surety are both blank and unsigned. We are required to take notice of the lack of jurisdiction of the appellate court, and hence we directed counsel to address briefs to us on the question of jurisdiction, or lack thereof.

The issue is a rather simple one. If we consider that the document filed is an appeal bond, although it may be insufficient or invalid, then we have jurisdiction and the appeal may not be dismissed without an opportunity to furnish a new or supplemental bond. C.C.P. Art. 5125. If, on the other hand, we consider that the document filed constitutes no bond at all, and the delays for furnishing appeal bond had run, we do not have jurisdiction. C. C.P. Art. 2123, 2087, and 2088. We have been referred to a number, of cases in the jurisprudence, and we have examined others which might contain some pertinen-cy. We note that appeals are favored in law and that our courts have attempted to support the appeal wherever possible. We note for example the recent case of Green v. Jefferson Truck Service, Inc., 274 So.2d 396 (La.App. 4th Cir. 1973) in which the surety failed to sign the bond form, but did execute an affidavit of surety on the reverse side. Believing that this action clearly showed his intention to be bound in the appeal bond, we held the document to be an appeal bond, but merely deficient, and rejected a motion to dismiss the appeal.

*868In the present case we find no aid in order to permit us to say that the document filed is indeed a bond. The document is an appeal bond form furnished by the Clerk of Court and the blanks are filled in with the names of Robert J. Guil-lot as principal and Steve’s Bonding Agency as surety. However the bond is unsigned by both principal and surety, and the affidavit on the rear of the form is entirely blank. Under these conditions, we believe that we should follow the pronouncement of the appellate court in the case of Durrett Hardware & Furniture Co. v. Howze, 174 So. 205 (La.App. 2nd Cir. 1937). In that case it was held that such a purported bond is no bond at all, and in the absence of an appeal bond the court was without jurisdiction to entertain the appeal.

In the case at bar, we note that there was filed along with the bond a power of attorney of Peerless Insurance Company purporting to appoint Stephen Ghergich, Jr. as attorney-in-fact to execute a criminal bail bond on behalf of “Ronald J. Guil-lot”. Considering that C.C.P. Art. 5122 provides that a surety company licensed to do business in this state does not have to furnish the affidavits of surety, it is possible to consider such power of attorney to take the place of the prescribed affidavit, and as in the case of Green v. Jefferson Truck Service, Inc., supra, declare that the bond is merely defective. However, nowhere on the face of the bond is Peerless Insurance Company named to be the proposed surety. There is simply no one on this bond whom we could consider might be held as surety, and we must declare it no bond at all.

For the reasons above assigned, we are of the opinion that this court does not have jurisdiction to consider the appeal, and we order the appeal dismissed at appellants’ cost.

Appeal dismissed.

LEMMON, J., concurs specially.

GULOTTA, J., dissents.

LEMMON, Judge

(concurring specially).

I agree that an unsigned bond is no security at all. Ballentine’s Law Dictionary defines a bond as “an obligation in writing which binds a signatory to pay a sum certain upon the happening of an event.” (Emphasis supplied.) While the principal is bound simply by his attorney’s filing an authorized appeal, the surety is not bound at all until he executes the bond.

I disagree, however, with the long line of jurisprudence that interprets C.C.P. art. 2087 to hold that failure to furnish “the security therefor” within the delay for filing a devolutive appeal is a “jurisdictional” defect.

C.C.P. art. 2087 provides that a devolu-tive appeal may be taken within 90 days. Of course, if no appeal is taken within the prescribed period, the judgment of the trial court becomes definitive and is no longer subject to reversal or modification. C.C.P. art. 1842; C.C.P. art. 3556(31). C.C.P. art. 2087 further provides that the security therefor may be furnished within 90 days, but jurisprudential interpretation has held that the security must be furnished within 90 days in order to prevent the trial court judgment from becoming definitive. In my opinion this interpretation is unnecessary to accomplish the purpose of the statute which prescribes appellate delays.

In order to provide for finality of litigation there must be a time limit within which to file a notice of appeal. This notice provides “jurisdiction” to the appellate court. But I see no reason why the appellate court should be concerned with security in connection with the appeal; this is the concern of the appellee or the clerk whose duty it is to prepare the appeal and collect the costs.

*869C.C.P. art. 2087 can reasonably be interpreted to simply provide a due date for the security. If the security is not filed by the due date, the appellate court may dismiss the appeal or impose any other order appropriate to the situation.1 Present interpretation, however, requires us t'o dismiss an appeal such as the one in this case, even though the appellant timely filed his appeal and apparently obtained the ordered security, but through oversight failed to obtain the signature of the surety on the bond.

The Federal decisions interpreting Rule 73 (the source of many of our codal articles on appellate procedure) are preferable.2 Once a notice of appeal is properly filed, further steps are not jurisdictional. Dismissal may result if the security (which is due at the time of noticing the appeal) is not filed timely, but this result does not necessarily follow, and appropriate action is within the discretion of the appellate court which may take all factors into consideration. This procedure recognizes the maxim that appeals are favored, but leaves it to the appellee or the clerk to insure that security is properly furnished. In contrast, we have the present case, in which the clerk was paid and the appellee was apparently unconcerned with the security, but the timely noticed appeal must be dismissed.

GULOTTA, Judge

(dissenting).

I respectfully dissent. The dismissal of the appeal is based on the conclusion reached by the majority that the unsigned bond purporting to be the bond of the surety is no bond at all. True, the surety in the instant case did not sign the affidavit on the reverse side of the bond as in the case of Green v. Jefferson Truck Service, Inc., supra; however, as pointed out by the majority, a surety company licensed to do business in the state is not required to furnish the affidavits of surety. See LSA-C.C.P. art. 5122.

Admittedly, the resolution attached to the unsigned bond is defective and Steve’s Bonding Agency is not named in the resolution, but the resolution authorizes Stephen Ghergich, Jr., to execute the bond on behalf of Peerless Insurance Company. The purported unsigned bond designates Steve’s Bonding Agency as surety. Nowhere in the unsigned bond does the name Peerless Insurance Company or Stephen Ghergich, Jr., appear. However, on an accompanying bond of injunction also in the record, it appears that Stephen Ghergich, Jr., and Steve’s Bonding Agency are agents and attorney-in-fact for Peerless Insurance Company.

It is clear that the unsigned bond is insufficient and invalid. I do not agree with the majority, however, that the purported unsigned bond and invalid resolution attached to the bond is no bond at all. Under the circumstances, I am of the opinion that appellant should be afforded an opportunity to furnish a valid bond within the time prescribed in LSA-C.C.P. art. 5124. I would not dismiss the appeal.

Accordingly, I respectfully dissent.