Opinion
No. 679.
July 13, 1962. Rehearing Denied July 27, 1962.
On motion to dismiss devolutive appeal from a judgment of the Fifteenth Judicial District Court, Parish of Vermilion, A. Wilmot Dalferes, J. The Court of Appeal, Frugé, J., held that devolutive appeal, perfected by filing of application and appeal bond 137 days after expiration of delay for new trial for which appellant never applied following mailing of notice of judgment by clerk, was not timely.
Appeal dismissed.
Knight Knight, by Herschel N. Knight, Jennings, for defendant-exceptors.
Edwards Edwards, by Nolan J. Edwards, Crowley, for defendants-appellants.
Broussard Broussard, by Marcus A. Broussard, Jr., Abbeville, for plaintiffs-appellees.
En Banc.
By this motion to dismiss the appeal, the plaintiff's-appellees contend that the defendant-appellant, George A. Broussard, did not timely perfect his appeal from adverse judgment. The plaintiffs-appellees contend that application for appeal was not filed within ninety days from the expiration of the delay for application for a new trial, as required by law. LSA-C.C.P. Art. 2087.
The record shows that judgment awarding the plaintiffs a right-of-way over and across the lands owned by the defendants was signed on December 21, 1961. No application for a new trial was instituted by the defendants in this action. Application for a devolutive appeal and the appeal bond were filed on May 14, 1961.
The only question that need be answered in the decision of this motion is whether the time limitation as set forth in LSA-C.C.P. Art. 2087 for filing an application for a devolutive appeal and furnishing security therefor had lapsed.
Pertinently to the present facts, LSA-C.C.P. Art. 2087 provides that a devolutive appeal "may be taken, and the security therefor furnished, only within ninety days of: (1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely; * * *" LSA-C.C.P. Art. 1974 provides:
"The delay for applying for a new trial shall be three days, exclusive of holidays. This delay commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913."
The record discloses that notice of the judgment was mailed by the clerk on December 21, 1961. Giving the defendant-appellant every benefit of the doubt and construing this time limitation in a way most favorable to him, this court reaches the following conclusions. The time limitation for applying for a new trial began to run on December 22, 1961. Excluding the 23rd, 24th and 25th days of December 1961, which were Saturday, Sunday and Monday (Christmas) respectively, the expiration of the delay for applying for a new trial was December 27, 1961. Ninety days thereafter the delay for perfecting a devolutive appeal had run.
The defendant-appellant perfected his appeal by filing his application and appeal bond on May 14, 1962. Thus, the application and the appeal bond were filed 137 days after the expiration of the delay for applying for a new trial (December 27, 1961).
For the reasons assigned, therefore, this appeal is dismissed.
Appeal dismissed.
On Application for Rehearing.
En Banc.
On application for rehearing, defendants-appellants contend that we erred in applying the 90 day time limitation for perfecting a devolutive appeal as set forth in LSA-C.C.P. Art. 2087. Counsel for the appellants cites a recent decision of the First Circuit Court of Appeal, wherein the Court held that the time limitation of one year, as provided by the former Code of Practice, should be applied in determining whether the time had lapsed for perfecting a devolutive appeal. Price v. Taylor et al., La. App., 139 So.2d 230.
The pertinent facts of the Price case and the reasoning and ruling of the Court are shown in the following quotation from that decision:
"Counsel for plaintiff-appellee has moved this Court to dismiss the present appeal as having been untimely taken, said motion being predicated upon the provisions of Article 2087 of the new Louisiana Code of Civil Procedure, LSA which requires that a devolutive appeal be taken within 90 days instead of one year as prescribed in our former Code of Practice. In this regard esteemed counsel directs our attention to the fact that whereas judgment in this cause was signed May 10, 1960, the appeal herein was not taken until April 29, 1961.
"The aforesaid motion to dismiss is clearly without merit considering the case at bar was filed prior to January 1, 1961, the effective date of the Code of Civil Procedure as designated in Section 7 of Act 15 of 1960, and considering further that section 4(B)(2)(a) of said same act provides that the Code of Civil Procedure shall not decrease or shorten any procedural delay granted or allowed by any law in existence immediately prior to, and which had not yet completely elapsed upon the effective date of the Code."
Counsel for the appellants contends that the facts of the Price decision and the instant case are identical. With this contention we cannot agree. In the Price decision the judgment was signed on May 10, 1960, whereas in the case before us the judgment was signed on December 21, 1961. This distinction is most important in light of the language of Section 4(B) of Act 15 of 1960 which provides:
"* * * (B) The provisions of the Louisiana Code of Civil Procedure enacted by Section 1 hereof, so far as applicable, shall govern and regulate the procedure in all civil actions and proceedings:
"(1) Instituted on or after the effective date of this act; and
"(2) Pending on the effective date of this act, except that none of the provisions thereof shall:
"(a) Decrease or shorten any procedural delay granted or allowed by any law in existence immediately prior to, and which had commenced to run but had not yet completely elapsed on, the effective date of this act;" (Emphasis added.)
In the instant case the delay for perfecting a devolutive appeal could not have possibly commenced to run before the effective date of the Code of Civil Procedure, January 1, 1961, (See Section 7 of Act 15 of 1960), since the judgment was not signed until December 21, 1961. On the other hand, the judgment in the Price case was signed on May 10, 1960, thereby commencing the time delay some 7 months before the effective date of the new Code. We see no conflict between our original holding and the Price decision cited herein. The Price case falls within the exception of Section 4(B)(2)(a) of Act 15 of 1960, while the instant case does not. See: Manuel v. Travelers Insurance Company, La. App., 131 So.2d 223.
For the reasons assigned, therefore, rehearing is denied.