Cuccia v. Bozeman

Full title: JAY JOHN CUCCIA v. WARREN BOZEMAN AND FRANK PAUL D/B/A CAFE AU LAIT

Court: Court of Appeal of Louisiana, Fourth Circuit

Date published: Jul 15, 1975

316 So. 2d 800 (La. Ct. App. 1975)

Opinion

No. 7048.

July 15, 1975.

APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE GEORGE C. CONNOLLY, JR., J.

Occhipinti, Tamberella Grace, Christopher T. Grace, New Orleans, for plaintiff-appellee.

Deutsch, Kerrigan Stiles, Robert G. Stassi Thomas R. Blum, New Orleans, for defendants-appellants.

Anthony L. Glorioso, New Orleans, for Richard J. Ganucheau, Clerk, Civ. Dist. Court.

Before SAMUEL, BOUTALL and BEER, JJ.

BOUTALL, Judge.

On our own motion we ordered appellants, Warren Bozeman and Frank Paul, d/b/a Cafe au Lait, to show cause why their appeal should not be dismissed for lack of jurisdiction, based upon failure of appellants to timely appeal and additionally, to timely post appeal bond.

The appeal is from a judgment of preliminary injunction dated October 18, 1974. Appellants applied for a new trial on October 23, 1974 and this application was denied on November 8, 1974. The appeal order was signed on November 8, 1974 and the bond was furnished on February 6, 1975.

Code of Civil Procedure Article 3612 provides that an appeal from the granting of a preliminary injunction must be taken and a bond furnished within 15 days from the date of the order or judgment. The application for a new trial does not serve to extend the time for appeal from a judgment relating to preliminary injunction and the 15 day delay for appeal is not held in abeyance by a new trial motion. Morris v. Transtates Petroleum, Inc., 258 La. 311, 246 So.2d 183 (1971).

Additionally, we further note that the Article referred to requires the bond to be furnished within 15 days from the date of order or judgment. In this case the bond was not only not furnished within 15 days from date of judgment, but was not even furnished within 15 days of the judgment denying the new trial. It is therefore evident that appellants have failed to comply with the requirements of Article 3612 and their appeal must be dismissed. Yates v. Egan, 273 So.2d 538 (La.App. 1st Cir. 1973).

For the above reasons, appellants' appeal is dismissed at their costs.

Appeal dismissed.