Bailes v. Southern Farm Bureau Casualty Insurance

259 So. 2d 29, 261 La. 106, 1972 La. LEXIS 4773

• Court: Supreme Court of Louisiana
• Decided: February 21, 1972
• Docket: No. 51857
• Status: Published

Opinions

SUMMERS, Justice.

This record affirmatively shows that applicant applied for a rehearing in the Court of Appeal and the rehearing was denied on September 23, 1971. The application for certiorari was filed here on October 26, 1971, a Tuesday, more than thirty days after refusal of the rehearing.

The 24th of October 1971, the thirtieth day after refusal of a rehearing in the Court of Appeal, was a Sunday. This applicant therefore had through the following day, October 25, to file an application for certiorari in this court.

The Clerk’s Office of this Court was open on October 25, 1971. There was therefore no impediment to the filing on that day. Applicant had mailed the application for certiorari from Shreveport on October 21, 1971, and, presumably, in the ordinary course of events the application should have been delivered; however, it was not delivered because the post office was closed and no deliveries were made on that day.

The fourth Monday in October is designated as Veteran’s Day and a legal holiday by the Congress of the United States. 5 U.S.C. 6103. October 25, 1971 was the fourth Monday in October. Veteran’s Day in the State of Louisiana is fixed by the Legislature on November 11 of each year. La.R.S. 1:55. Thus October 25 was not a legal holiday in Louisiana insofar as State business was concerned. Interstate Oil Pipe Line Company v. Friedman, 137 So.2d 700 (La.App.1962).

Article VII, Section 11, of the Constitution provides:

It shall be competent for the Supreme Court to require by writ of certiorari, or otherwise, any case to be certified from the Courts of Appeal to it for review, with the same power and authority in the case as if it had been carried directly by appeal to the said court; . . . provided, however, that the Supreme Court shall in no case exercise the power conferred by this Article unless the application shall have been made to the court or to one of the justices thereof within thirty days after a rehearing shall have been refused by the Court of Appeal

A judgment of the Court of Appeal becomes final thirty days after the denial of a rehearing by the Court of Appeal, if no timely application has been made to the Supreme Court for a writ of certiorari. La.Code Civ.P. art. 2167.

On the basis of the facts and authority cited, it is necessary to rescind our order granting certiorari, 259 La. 950, 253 So.2d 791. Matthews v. National Life & Accident Insurance Company, 232 La. 537, 94 So.2d 659 (1957).

For the reasons assigned, the writ of certiorari issued herein is rescinded, recalled and set aside, and this suit is dismissed at plaintiff’s cost.

DIXON, J., dissents.