Opinion
No. 5760.
September 25, 1962.
Civil action. The Twentieth Judicial District Court, Parish of West Feliciana, John R. Rarick, J., dismissed suit and granted devolutive appeal conditioned upon furnishing bond. The Court of Appeal, Miller, J., pro tem., held that where delay for new trial expired on January 24, delay for filing devolutive appeal bond in order to perfect devolutive appeal expired on April 24, and, in absence of bond being filed until May 10, appeal must be dismissed at costs of appellant.
Appeal dismissed.
E. Leland Richardson, Baton Rouge, for appellant.
Kilbourne, Dart Jackson, Leon A. Picou, Jr., St. Francisville, for appellees.
Before ELLIS, HERGET, and MILLER, JJ.
On January 20, 1962 the trial court signed a judgment sustaining Exceptions of No Cause or Right of Action filed by defendants, Lafayette Concrete Pipe Company, Inc. and Edward Daniel and Jordan Truitt and dismissing William Airth Rolston's suit at his costs. Appellant did not apply to the trial court for a new trial. On March 23, 1962 the District Court granted a devolutive appeal to plaintiff-appellant and made it returnable to the Court of Appeal, First Circuit on April 30, 1962, conditioned upon furnishing bond in the amount of $200.00. No. extension of time for perfecting the appeal was applied for and none has been granted.
Appellant filed the required bond and filing fees with the Clerk of Court of the 20th Judicial District Court on May 10, 1962 some ten days after the fixed return day.
Appellees moved for and obtained show cause orders from this Court, one of which ordered plaintiff-appellant to show cause by briefs to be filed on or before June 15, 1962, why the appeal should not be dismissed, and the other required plaintiff-appellant to show cause by briefs to be filed on or before June 22, 1962, why the appeal should not be dismissed. These orders to show cause have not been answered as of this date.
LSA-C.C.P. Art. 2087 provides that devolutive appeals must be taken "and the security therefor furnished" within 90 days of the expiration of the delay for applying for a new trial. Here the delay for a new trial expired on January 24, 1962. Therefore, the delay for filing the devolutive appeal bond in order to perfect this appeal expired on April 24, 1962. Since the devolutive appeal bond was not filed until May 10, 1962, the appeal must be dismissed at the costs of plaintiff-appellant. LSA-C.C.P. Art. 2087.
Appeal dismissed.