No. 8175 Precedential Dismissed Processed

Clements v. Kimble

Louisiana Court of Appeal, First Circuit · Filed June 30, 1970 · 239 So. 2d 704

Also decided on this docket: La. Ct. App. 1st Cir., June 30, 1981 401 So. 2d 581; La. Ct. App. 1st Cir., June 25, 1954 73 So. 2d 589; La. Ct. App. 1st Cir., March 13, 1922 5 Pelt. 272; La. Ct. App. 1st Cir., January 2, 1922 5 Pelt. 268; La., April 15, 1881 33 La. Ann. 473

Cited by

Bentley v. Bentley 433 So. 2d 837 La. Ct. App. 1st Cir. 1983
Something Irish Co. v. Rack 333 So. 2d 773 La. Ct. App. 1st Cir. 1976
Safeco Insurance v. Blackwell 288 So. 2d 85 La. Ct. App. 1st Cir. 1973
Jefferson Terrace Area Junior High Ass'n v. East Baton Rouge Parish School Board 281 So. 2d 295 La. Ct. App. 1st Cir. 1973
Shivers v. Louisiana Department of Revenue 273 So. 2d 302 La. Ct. App. 1st Cir. 1973
Carona v. Webster 270 So. 2d 609 La. Ct. App. 1st Cir. 1972
In re Investigation of Possible Violation of the Civil Service Law & Rules by … 257 So. 2d 473 La. Ct. App. 1st Cir. 1972

Authorities cited

Identified automatically; this list may not be exhaustive.

Ramizest v. Ramizest 226 La. 973
Aetna Insurance Co. v. Robinson 199 So. 2d 369

Opinion text

LANDRY, Judge. Defendants-appellees, Walter Kimble, Lucy Kimble and The Liberty Mutual Insurance Company, have moved to dismiss the appeal taken by plaintiffs-appellants for appellants’ alleged failure to timely file an appeal bond. We find appellees’ motion well taken and dismiss this appeal. The judgment appealed from was signed January 29, 1970. Notice of judgment, required pursuant to LSA-C.C.P. art. 1913, was duly given January 29, 1970. No application for new trial was made by-either appellants or appellees. On April 29, 1970, ninety days after notice of judgment was given appellants, the trial court entered an order of devolutive appeal conditioned upon appellants posting bond in the sum of $500.-00. As of May 15, 1970, the date of filing of appellees’ motion to dismiss, the appeal bond had not been posted. LSA-C.C.P. art. 2087 provides that a devolutive appeal may be taken and the security therefor furnished within 90 days of the expiration of the delay for applying for a new trial as provided by Article 1974, if no application for new trial has been timely filed. In this case, appellants did not apply for a new trial. LSA-C.C.P. art. 1974 states that the delay for applying for a new trial, when notice *705 of judgment is required according to LSA-C.C.P. art. 1913, is three days, which delay commences the day after the Clerk has mailed or the Sheriff has served the notice of judgment. Since January 29, 1970 was a Thursday, the three day period for making an application for new trial herein did not expire until Monday, February 2, 1970. We likewise note that the ninety day period for taking a devolutive appeal did not expire herein until Monday, April 4, 1970, inasmuch as the ninetieth day fell on Sunday, April 3, 1970. Because appellants did not file the required appeal bond on or before April 4, 1970, this court lacks jurisdiction and the appeal must be dismissed. Ramizest v. Ramizest, 226 La. 973 , 77 So.2d 733 ; Aetna Insurance Company v. Robinson, La.App., 199 So.2d 369 . Accordingly, the appeal taken in this matter is dismissed at appellants’ cost. Appeal dismissed.