Opinion
No. 83 CM 0156.
March 4, 1983.
APPEAL FROM TWENTY-FIRST JUDICIAL DISTRICT COURT, PARISH OF LIVINGSTON, STATE OF LOUISIANA, HONORABLE GORDON E. CAUSEY, J.
Robert C. Funderburk, Jr., Baton Rouge, for plaintiff-appellant.
J. Donald Cascio, Denham Springs, for defendant-appellee.
Before COVINGTON, LANIER and ALFORD, JJ.
This matter is before the court on a show cause order issued pursuant to appellee's motion to dismiss an unlodged devolutive appeal on the basis that it was not timely filed.
Appellee alleges, without providing any proof thereof, that notice of judgment was given to all parties on October 15, 1982. An order of appeal was entered on behalf of appellant on January 18, 1983. Appellee argues that appellant's appeal delays had expired prior to this date.
In an opposition, appellant concedes that notice of judgment was given on October 15, 1982. Apparently, no motion for new trial was made. However, appellant maintains that his motion for appeal was filed on December 20, 1982. In support thereof he has attached a copy of his motion and order for appeal which is marked "Filed December 20, 1982."
Under the facts present, the last date on which appellant's motion for appeal could have been timely filed was December 27, 1982. La.C.C.P. 1974 and 2087. In cases of devolutive appeals, the date the motion of appeal is filed, rather than the date the order of appeal is signed, controls. Traigle v. Gulf Coast Aluminum Corporation, 399 So.2d 183 (La. 1981). Thus the filing of appellant's motion for appeal on December 20, 1982, as evidenced by the copy thereof attached to his opposition to this motion to dismiss, was timely.
For the foregoing reasons, appellee's motion to dismiss appellant's devolutive appeal is denied. Costs to be borne by appellee.
MOTION TO DISMISS DENIED.