Succession of Donohue , 388 So. 2d 56 ( 1980 )

SAMUEL, Judge.

Irene Keller, the alleged surviving spouse of the deceased herein, Clifton Anthony Do-nohue, opposed a “First Petition for Partial Possession” filed by the children of the deceased and the administratrix of the succession. The administratrix filed exceptions to the opposition, including exceptions of no cause of action.

Following a hearing, the exceptions were maintained and the opposition was dismissed. Irene Keller appealed from that judgment. The order of appeal grants her a suspensive appeal, or alternatively, a de-volutive appeal and further states “It is further ordered that a stay be granted in this matter.”

Subsequent to taking the appeal Irene Keller sought and obtained an order permitting her to prosecute the action in forma pauperis. The children of the deceased, including the administratrix of the succession, filed a motion to dismiss the appeal based on the fact that no appeal bond has been furnished. We grant the motion insofar as it applies to the suspensive appeal.

In pertinent part, Code of Civil Procedure Article 5185(4) provides:

“When an order of court permits a party to litigate without the payment of costs, until this order is rescinded, he is entitled to:

(4) The right to a devolutive appeal, and to apply for supervisory writs.

He is not entitled to a suspensive appeal, or to an order or judgment required by law to be conditioned on his furnishing security other than for costs, unless he furnishes the necessary security therefor.” LSA-C.C.P. Art. 5185(4).

Thus, under the specific wording of the above quoted portion of Article 5185, a party proceeding in forma pauperis has a right to a devolutive appeal without furnishing an appeal bond, but he is not entitled to a suspensive appeal without furnishing the necessary security therefor.¹

For the reasons assigned, the motion to dismiss is granted insofar as the suspensive appeal is concerned and that suspensive appeal is denied; the stay granted in the order of appeal is annulled and set aside; and the motion to dismiss is denied insofar as it applies to the devolutive appeal.

MOTION GRANTED IN PART; DENIED IN PART.

1 . Stuart v. Capri Construction Company, Inc., La.App., 285 So.2d 306; Bass v. Service Pipe Trucking Company, Inc., La.App., 267 So.2d 63.