Joe Wright's Steak House, Inc. v. Whitney National Bank

139 So. 2d 281, 1962 La. App. LEXIS 1760

• Court: Louisiana Court of Appeal
• Decided: April 2, 1962
• Docket: No. 726
• Status: Published

Opinion

REGAN, Judge.

Plaintiff, Joe Wright’s Steak Plouse, Inc., has appealed devolutively from a judgment maintaining an exception of no cause of action, entered by the defendants herein, The Whitney National Bank and The Catholic Woman’s Club.

Judgment was read, rendered and signed on Wednesday, October 18, 1961, and plaintiff obtained an order granting it the right to appeal devolutively on January 17, 1962. The appeal bond was filed the following day.

Defendants have filed with this court a motion to dismiss the appeal, asserting that plaintiff’s devolutive appeal was not taken timely since January 16, 1962 was the last day upon which plaintiff was permitted to take an appeal under LSA-C.C.P. Article 2087, which provides in part:

“Except as otherwise provided by law, an appeal which does not suspend the effect or the execution of an ap-pealable order or judgment may be taken, and the security therefor furnished, only within ninety days of:

“(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely; * *

LSA-C.C.P. Article 1974 provides that an application for a new trial must be filed within three days, and this period begins to run the day after the litigants have been notified of the judgment.

At the earliest, notice could have been mailed or served on October 18, 1961; therefore, plaintiff was entitled to file an application for a new trial until October 21st, which was a Saturday. Even if we start counting the ninety day period from Sunday, October 22, 1961, we find that the order for appeal was obtained on the 88th day and the bond filed on the 89th day; thus the appeal was filed timely.

For the reasons assigned, the motion to dismiss plaintiff’s appeal is denied.

Motion denied.