6769 Precedential Processed

Thomas v. Berman

Louisiana Court of Appeal, Fourth Circuit · Filed January 17, 1975 · 308 So. 2d 797

Also decided on this docket: La. Ct. App. 1st Cir., August 17, 1978 361 So. 2d 1356; La. Ct. App. 1st Cir., November 15, 1966 191 So. 2d 891; La. Ct. App. 1st Cir., October 23, 1916 14 Teiss. 31; La., July 1, 1880 1 Mann. Unrep. Cas. 217

Cited by

Garner v. Avoyelles Parish Sheriff's Department 497 So. 2d 46 La. Ct. App. 1st Cir. 1986
First National Bank of Commerce v. Bernard 398 So. 2d 1293 La. Ct. App. 1st Cir. 1981
Scales v. State 391 So. 2d 871 La. Ct. App. 1st Cir. 1980
Traigle v. Gulf Coast Aluminum Corp. 391 So. 2d 1290 La. Ct. App. 1st Cir. 1980
Succession of Rolland 360 So. 2d 213 La. Ct. App. 4th Cir. 1978
Perry v. Perry 340 So. 2d 418 La. Ct. App. 1st Cir. 1976

Authorities cited

Identified automatically; this list may not be exhaustive.

Fidelity Bank & Trust Co. of Slidell v. Pinewood Country Club, Inc. 250 So. 2d 577
Rodrigue v. Ziifle 297 So. 2d 793
Hawkins v. Shropshire 275 So. 2d 821

Opinion text

308 So.2d 797 (1975) Mrs. Marguerite THOMAS and Kenneth Thomas v. Maynard BERMAN and Aetna Life and Casualty Insurance Co. et al. No. 6769. Court of Appeal of Louisiana, Fourth Circuit. January 17, 1975. Rehearing Denied February 13, 1975. *798 Raymond D. Levith, New Orleans, for plaintiff-appellant. Rene A. Pastorek, Gretna, for defendant-appellee. ORDER We dismiss this appeal because appellants' motion for appeal was signed by the trial judge after the delays for taking a devolutive appeal had expired. We cite the pertinent dates: April 22, 1974 Judgment signed April 23, 1974 Notice of judgment mailed May 22, 1974 Motion for appeal filed July 27, 1974 Expiration of delay for devolutive appeal August 13, 1974 Motion for appeal signed September 4, 1974 Bond filed. Under C.C.P. arts. 2087 and 1974, the delays for applying for a devolutive appeal expired on July 27, 1974, at which time the order granting an appeal was unsigned and no bond was set. To perfect a devolutive appeal, the order must be signed and the required bond posted within the 90-day period prescribed for such appeals. Mere filing of the motion does not constitute a perfected appeal nor does it suspend or toll the running of the period for appealing. The responsibility for obtaining the necessary order of appeal and furnishing bond rests with counsel for appellant. If for some reason the trial judge fails or refuses to sign an order of appeal, counsel for appellant must apply for supervisory writs to compel the trial judge to sign the order of appeal and this must be done within the delays permitted by law for perfecting the appeal. Fidelity B. & T. Co. of Slidell v. Pinewood Country CI., 250 So.2d 577 (La.App. 1st Cir. 1971); and Rodrigue v. Ziifle, 297 So.2d 793 (La.App. 4th Cir. 1974). The statutory time allowed for perfecting an appeal cannot be extended by the trial judge, the appellate court, or counsel. It is absolute. Hawkins v. Shropshire, 275 So.2d 821 (La.App. 4th Cir. 1973). The appeal is dismissed. s/ EDWARD J. STOULIG Judge s/ L. JULIAN SAMUEL Judge s/ JOHN C. BOUTALL Judge