Kaplan & Associates, Inc. v. Coastal Air Conditioning & Electrical Works, Inc.

Louisiana Court of Appeal

Kaplan & Associates, Inc. v. Coastal Air Conditioning & Electrical Works, Inc.

328 So. 2d 696, 1976 La. App. LEXIS 4608

CourtLouisiana Court of Appeal

DecidedMarch 10, 1976

DocketNo. 5399

StatusPublished

This text of 328 So. 2d 696 (Kaplan & Associates, Inc. v. Coastal Air Conditioning & Electrical Works, Inc.) 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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Kaplan & Associates, Inc. v. Coastal Air Conditioning & Electrical Works, Inc., 328 So. 2d 696, 1976 La. App. LEXIS 4608 (La. Ct. App. 1976).

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Opinion

ON MOTION TO DISMISS APPEAL

WATSON, Judge.

The plaintiff-appellee, Kaplan & Associates, Inc. moves to dismiss the appeal of the defendant-appellant, Coastal Air Conditioning and Electrical Works, Inc., on the grounds that the defendant-appellant failed to timely post its appeal bond.

We dismiss defendant-appellant’s appeal.

Judgment was rendered in this matter on June 4, 1975, and notices of judgment were mailed to all parties on June 10, 1975. On June 19, 1975, the defendant-appellant timely filed a Motion for a' New Trial which was heard on July 21, 1975 and taken under advisement. On August 4, 1975 judgment was rendered denying the defendant-appellant’s Motion for a New Trial and Notices of this judgment were mailed to all parties on August 4, 1975.

On October 31, 1975 the defendant-appellant moved for and was granted a de-volutive appeal to this court. The devolu-tive appeal bond was set for $500.00, which the defendant-appellant did not file until December 29, 1975.

Article 2087(3) provides that a devolu-tive appeal must be taken within ninety (90) days of the date of the mailing of notices of the court’s refusal to grant a timely application for a new trial. Notices of the trial court’s judgment denying the defendant-appellant’s Motion for a New Trial were mailed to all parties on August 4, 1975 and, therefore, the ninety (90) day period provided by LSA-C.C.P. art. 2087(1) for taking a devolutive appeal commenced to run on August 5, 1975, and expired on November 3, 1975 [November 2, 1975 being a legal holiday], fifty-six (56) days prior to the defendant-appellant’s filing its appeal bond.

The defendant-appellant’s appeal must, therefore, be dismissed, for it is well settled that an appellate court does not acquire jurisdiction of a devolutive appeal unless the bond is filed within the time prescribed. Pan-American Petroleum Corporation v. Cocreham, 251 La. 705, 206 So.2d 79 (1968) and cases cited therein; Freeman v. Liberty Mutual Insurance Co., 289 So.2d 875 (La.App.3rd Cir. 1975).

APPEAL DISMISSED.

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ON MOTION TO DISMISS APPEAL

WATSON, Judge.

The plaintiff-appellee, Kaplan & Associates, Inc. moves to dismiss the appeal of the defendant-appellant, Coastal Air Conditioning and Electrical Works, Inc., on the grounds that the defendant-appellant failed to timely post its appeal bond.

We dismiss defendant-appellant’s appeal.

Judgment was rendered in this matter on June 4, 1975, and notices of judgment were mailed to all parties on June 10, 1975. On June 19, 1975, the defendant-appellant timely filed a Motion for a' New Trial which was heard on July 21, 1975 and taken under advisement. On August 4, 1975 judgment was rendered denying the defendant-appellant’s Motion for a New Trial and Notices of this judgment were mailed to all parties on August 4, 1975.

On October 31, 1975 the defendant-appellant moved for and was granted a de-volutive appeal to this court. The devolu-tive appeal bond was set for $500.00, which the defendant-appellant did not file until December 29, 1975.

Article 2087(3) provides that a devolu-tive appeal must be taken within ninety (90) days of the date of the mailing of notices of the court’s refusal to grant a timely application for a new trial. Notices of the trial court’s judgment denying the defendant-appellant’s Motion for a New Trial were mailed to all parties on August 4, 1975 and, therefore, the ninety (90) day period provided by LSA-C.C.P. art. 2087(1) for taking a devolutive appeal commenced to run on August 5, 1975, and expired on November 3, 1975 [November 2, 1975 being a legal holiday], fifty-six (56) days prior to the defendant-appellant’s filing its appeal bond.

The defendant-appellant’s appeal must, therefore, be dismissed, for it is well settled that an appellate court does not acquire jurisdiction of a devolutive appeal unless the bond is filed within the time prescribed. Pan-American Petroleum Corporation v. Cocreham, 251 La. 705, 206 So.2d 79 (1968) and cases cited therein; Freeman v. Liberty Mutual Insurance Co., 289 So.2d 875 (La.App.3rd Cir. 1975).

APPEAL DISMISSED.

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328 So. 2d 696, 1976 La. App. LEXIS 4608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kaplan-associates-inc-v-coastal-air-conditioning-electrical-works-lactapp-1976.

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