Auto for Rent, Inc. v. Provenza

Louisiana Court of Appeal

Auto for Rent, Inc. v. Provenza

261 So. 2d 732, 1971 La. App. LEXIS 6550

CourtLouisiana Court of Appeal

DecidedNovember 16, 1971

DocketNo. 11712

StatusPublished

Cited by2 cases

This text of 261 So. 2d 732 (Auto for Rent, Inc. v. Provenza) 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.

Bluebook

Auto for Rent, Inc. v. Provenza, 261 So. 2d 732, 1971 La. App. LEXIS 6550 (La. Ct. App. 1971).

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Opinions

HALL, Judge.

This is a suit for rent due pursuant to a vehicle rental agreement between the parties. Judgment was rendered in favor of the plaintiff, Auto For Rent,’ Inc., and against the defendant, Sam Provenza, for the sum of $1,340.16 due under the agreement. Defendant has appealed.

Appellee filed in this court a motion to dismiss appeal based on the failure of appellant to perfect his devolutive appeal by furnishing security within the ninety (90) day period provided by Article 2087 of the Louisiana Code of Civil Procedure. The motion to dismiss was not filed within three (3) days, exclusive of holidays, after the record on appeal was lodged in this court as required by Article 2161 of the Louisiana Code of Civil Procedure, but since the grounds for the motion go to the jurisdiction of this court the motion was timely filed and will be considered. Additionally, if this court lacks jurisdiction, the appeal must be dismissed on the court’s own motion.

Judgment was signed in this case on February 23, 1971 and notice of judgment was served on defendant on February 24, 1971. The three (3) day delay, exclusive of legal holidays, for applying for a new trial expired on March 1, 1971.

Appellant petitioned for and obtained an order for a devolutive appeal on May 19, 1971 with the appeal bond set at $50. The required security was not furnished within the ninety (90) day period for perfecting an appeal. On July 9, 1971, after the delay for perfecting an appeal had expired, appellant filed a motion praying that he be permitted to prosecute his devolutive appeal in forma pauperis and an order was entered to that effect by the district court on that date.

The ninety (90) day period for perfecting the appeal expired without appellant furnishing the required security and without appellant being granted the right to proceed in forma pauperis. The order subsequently applied for and granted permitting appellant to proceed in forma pauperis is of no effect and did not serve to extend or circumvent the time allowed by law for perfecting the appeal. See Wilkerson v. Luneau, 198 So.2d 183 (La. App.1st Cir. 1967) and Hyatt v. Hartford Accident and Indemnity Company, 225 So. 2d 102 (La.App.3d Cir. 1969).

The appeal not having been perfected by the furnishing of security or the granting of a forma pauperis order within the time allowed by law for perfecting the appeal, this court is without jurisdiction and the appeal must be dismissed.

For the reasons assigned, the appeal is dismissed at appellant’s costs.

Appeal dismissed.

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HALL, Judge.

This is a suit for rent due pursuant to a vehicle rental agreement between the parties. Judgment was rendered in favor of the plaintiff, Auto For Rent,’ Inc., and against the defendant, Sam Provenza, for the sum of $1,340.16 due under the agreement. Defendant has appealed.

Appellee filed in this court a motion to dismiss appeal based on the failure of appellant to perfect his devolutive appeal by furnishing security within the ninety (90) day period provided by Article 2087 of the Louisiana Code of Civil Procedure. The motion to dismiss was not filed within three (3) days, exclusive of holidays, after the record on appeal was lodged in this court as required by Article 2161 of the Louisiana Code of Civil Procedure, but since the grounds for the motion go to the jurisdiction of this court the motion was timely filed and will be considered. Additionally, if this court lacks jurisdiction, the appeal must be dismissed on the court’s own motion.

Judgment was signed in this case on February 23, 1971 and notice of judgment was served on defendant on February 24, 1971. The three (3) day delay, exclusive of legal holidays, for applying for a new trial expired on March 1, 1971.

Appellant petitioned for and obtained an order for a devolutive appeal on May 19, 1971 with the appeal bond set at $50. The required security was not furnished within the ninety (90) day period for perfecting an appeal. On July 9, 1971, after the delay for perfecting an appeal had expired, appellant filed a motion praying that he be permitted to prosecute his devolutive appeal in forma pauperis and an order was entered to that effect by the district court on that date.

The ninety (90) day period for perfecting the appeal expired without appellant furnishing the required security and without appellant being granted the right to proceed in forma pauperis. The order subsequently applied for and granted permitting appellant to proceed in forma pauperis is of no effect and did not serve to extend or circumvent the time allowed by law for perfecting the appeal. See Wilkerson v. Luneau, 198 So.2d 183 (La. App.1st Cir. 1967) and Hyatt v. Hartford Accident and Indemnity Company, 225 So. 2d 102 (La.App.3d Cir. 1969).

The appeal not having been perfected by the furnishing of security or the granting of a forma pauperis order within the time allowed by law for perfecting the appeal, this court is without jurisdiction and the appeal must be dismissed.

For the reasons assigned, the appeal is dismissed at appellant’s costs.

Appeal dismissed.

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261 So. 2d 732, 1971 La. App. LEXIS 6550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/auto-for-rent-inc-v-provenza-lactapp-1971.

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