Shaw v. Louisiana Department of Education

377 So. 2d 492, 1979 La. App. LEXIS 3319

Opinion

GUIDRY, Judge.

This matter was previously before us on a motion to dismiss the appeal of appellant, Louisiana Department of Education, on the ground that the appellant did not perfect its devolutive appeal within the delay allowed by law. LSA-C.C.P. Article 2087.

Upon initial consideration we concluded that appellant’s appeal was untimely, the order of appeal having been signed two days following expiration of the delay provided for in C.C.P. Article 2087. However, in the interest of justice we remanded this matter to the trial court for the purpose of having that court conduct a hearing to determine if the appeal order had been timely presented, i. e., whether the failure to perfect the appeal within the delay allowed resulted from the failure of the trial court to sign the appeal order after it had been timely presented. 366 So.2d 1070 (La.App. 3rd Cir. 1979).

Pursuant to remand the trial court conducted a hearing and concluded, as reflected by formal judgment signed May 2, 1979, that the motion for appeal filed by The Department of Education was actually received and filed by the Clerk of Court of Allen Parish, Louisiana, and signed by the trial judge on June 28, 1978, two days following expiration of the delay for appealing. No appeal has been taken from the judgment last referred to and same is now final.

Accordingly, we determine that the appeal taken by appellant, THE DEPARTMENT OF EDUCATION, is untimely and must be dismissed.

APPEAL DISMISSED.