Mabry v. Theriot

337 So. 2d 1232

• Court: Louisiana Court of Appeal
• Decided: September 20, 1976
• Docket: No. 11030
• Status: Published

Opinion

EDWARDS, Judge.

Husband and wife filed suit for personal injuries sustained by husband and for the wife’s mental anguish resulting from injuries to the husband.

An exception of no cause of action filed by the defendant Dr. Eugene Theriot to the demands of the plaintiff Gloria Mabry was sustained by the trial court, and judgment to that effect was signed on January 6, 1976. Notice of judgment was sent to counsel the same day.

A motion to reconsider judgment on exception was filed on January 18, 1976 and denied on February 16,1976.

On March 5, 1976 plaintiffs moved for and were granted an appeal from the judgment dismissing the wife’s cause of action, and the appeal bond was set at $250.00.

The appeal bond was filed on May 3, 1976. LSA-C.C.P. art. 1974 stipulates that the seven-day delay therein provided for applying for a new trial commences to run the day after the Clerk has mailed notice of signing of judgment when notice of judgment is required pursuant to LSA-C.C.P. art. 1913. Since notice was mailed on January 6, 1976, the last day for timely application for a new trial was January 15, 1976. The motion to reconsider judgment'filed on January 18, 1976 was therefore untimely.

The delay for taking a devolutive appeal is fixed by LSA-C.C.P. art. 2087. At the time that the judgment herein was signed, the delay for taking a devolutive appeal and furnishing security therefor was 90 days from the expiration of the delay for a new trial (where no application for a new trial is filed timely).

Since the 90 day delay expired on April 14, 1976, the appeal bond filed on May 3, 1976 was not timely.

The appeal is dismissed at appellant’s cost.

APPEAL DISMISSED.