Summary
In Parault, the appeal order was untimely signed by the trial judge and stamped by the clerk of court as being untimely filed.
Summary of this case from Hough v. Brookshire Grocery Co.Opinion
No. 82 CA 0031.
March 2, 1982.
APPEAL FROM EIGHTEENTH JUDICIAL DISTRICT COURT, PARISH OF WEST BATON ROUGE, STATE OF LOUISIANA, HONORABLE IAN W. CLAIBORNE, J.
Susan Dowden, Baton Rouge, for plaintiff-appellant.
John L. Parault, in pro. per.
Before ELLIS, PONDER and SAVOIE, JJ.
Ex proprio motu, we issued an order to show cause why this appeal should not be dismissed because of an appearance that it was not timely filed.
On September 23, 1981, the trial court rendered judgment granting plaintiff custody of minor children, an award of $100.00 per month child support and the right to occupy the family residence. Judgment was signed on September 30, 1981.
On November 9, 1981, the delay for appeal expired.
On November 16, 1981, the trial judge signed the order of appeal, which was stamped by the clerk's office as being filed that date.
On January 22, 1982, we issued a rule to show cause why the appeal should not be dismissed.
In response to this order plaintiff has filed an affidavit of an employee of Courthouse Courier, Inc., that he delivered the motion and order of appeal to the clerk's office on November 6, 1981 and that a Deputy Clerk gave a receipt for the pleading on that date. A copy of the receipted sheet was attached to the affidavit.
The delay was therefore not imputable to the appellant and the appeal should not be dismissed. La. Code of Civil Procedure, Art. 2161; Traigle v. Gulf Coast Aluminum Corp., 399 So.2d 183 (La. 1981); E. D. Haber Heating Air Conditioning, Inc. v. Koppenal, 399 So.2d 1224 (1st Cir. 1981).
The rule to show cause is recalled and the appeal is maintained.