Andrus v. State ex rel. Department of Public Safety, Division of State Police

Louisiana Court of Appeal

Andrus v. State ex rel. Department of Public Safety, Division of State Police

339 So. 2d 417

CourtLouisiana Court of Appeal

DecidedSeptember 20, 1976

DocketNo. 10899

StatusPublished

This text of 339 So. 2d 417 (Andrus v. State ex rel. Department of Public Safety, Division of State Police) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Andrus v. State ex rel. Department of Public Safety, Division of State Police, 339 So. 2d 417 (La. Ct. App. 1976).

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Opinion

LANDRY, Judge.

William E. Jourdan, Jr., The Travelers Insurance Company, and the State of Louisiana, Department of Public Safety (Appel-lees) have moved dismissal of the appeal taken herein by Edgar R. Andrus, Individually and as Administrator of the Estate of his minor son, Ted Andrus (Appellant), for failure of Appellant to timely file the appeal bond ordered by the trial court. We grant the motion and dismiss the appeal.

Judgment was rendered herein on August 29, 1975, rejecting Appellant’s de[418]*418mands, with prejudice. On September 5, 1975, formal judgment was signed to said same effect and Appellant timely applied for a new trial. A hearing of Appellant’s application for new trial was set for and held October 10, 1975, with counsel for Appellant present in court. The trial court, in the presence of counsel for Appellant, denied the application for new trial. Appellant applied for a devolutive appeal which was granted by the trial court conditioned upon Appellant furnishing bond in the sum of $5,000.00. The required bond was posted January 12, 1976.

A devolutive appeal must be taken and security therefor furnished within ninety days of the court’s refusal to grant a new trial where applicant is not entitled to notice of such refusal pursuant to LA-C. C.P. Article 1914. Counsel for Appellant being present when the trial court denied the application for new trial, Appellant was not entitled to notice of said judgment. LA-C.C.P. Article 1914. Since Appellant was not entitled to notice of judgment denying his application for new trial, the ninety day delay for taking and perfecting a devolutive appeal commenced October 11, 1975, and expired January 8, 1976. However, Thursday, January 8, 1976 was a legal holiday (Battle of New Orleans), consequently the delay for perfecting the instant appeal was extended to and expired Friday, January 9, 1976. The bond, filed Monday, January 12, 1976, was therefore untimely.

Failure to timely file the required appeal. bond necessitates dismissal of the appeal for failure of appellate jurisdiction to timely attach. Bennett v. Allstate Insurance Company, La.App., 303 So.2d 770, and authorities cited therein.

Appellant’s motion to dismiss this appeal is granted and Appellant’s appeal is dismissed, with prejudice, at Appellant’s cost.

Appeal dismissed.

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LANDRY, Judge.

William E. Jourdan, Jr., The Travelers Insurance Company, and the State of Louisiana, Department of Public Safety (Appel-lees) have moved dismissal of the appeal taken herein by Edgar R. Andrus, Individually and as Administrator of the Estate of his minor son, Ted Andrus (Appellant), for failure of Appellant to timely file the appeal bond ordered by the trial court. We grant the motion and dismiss the appeal.

Judgment was rendered herein on August 29, 1975, rejecting Appellant’s de[418]*418mands, with prejudice. On September 5, 1975, formal judgment was signed to said same effect and Appellant timely applied for a new trial. A hearing of Appellant’s application for new trial was set for and held October 10, 1975, with counsel for Appellant present in court. The trial court, in the presence of counsel for Appellant, denied the application for new trial. Appellant applied for a devolutive appeal which was granted by the trial court conditioned upon Appellant furnishing bond in the sum of $5,000.00. The required bond was posted January 12, 1976.

A devolutive appeal must be taken and security therefor furnished within ninety days of the court’s refusal to grant a new trial where applicant is not entitled to notice of such refusal pursuant to LA-C. C.P. Article 1914. Counsel for Appellant being present when the trial court denied the application for new trial, Appellant was not entitled to notice of said judgment. LA-C.C.P. Article 1914. Since Appellant was not entitled to notice of judgment denying his application for new trial, the ninety day delay for taking and perfecting a devolutive appeal commenced October 11, 1975, and expired January 8, 1976. However, Thursday, January 8, 1976 was a legal holiday (Battle of New Orleans), consequently the delay for perfecting the instant appeal was extended to and expired Friday, January 9, 1976. The bond, filed Monday, January 12, 1976, was therefore untimely.

Failure to timely file the required appeal. bond necessitates dismissal of the appeal for failure of appellate jurisdiction to timely attach. Bennett v. Allstate Insurance Company, La.App., 303 So.2d 770, and authorities cited therein.

Appellant’s motion to dismiss this appeal is granted and Appellant’s appeal is dismissed, with prejudice, at Appellant’s cost.

Appeal dismissed.

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