Opinion
No. 10899.
September 20, 1976. Rehearing Denied November 15, 1976.
APPEAL FROM 22ND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY, STATE OF LOUISIANA, HONORABLE THOMAS W. TANNER, J.
D. P. Schwarz and Daniel E. Becnel, Jr., Reserve, and Robert J. Mack, Hammond, for appellant.
France W. Watts, III, Franklinton, and Clint L. Pierson, Jr., Covington, for appellees.
Before LANDRY, COVINGTON and PONDER, JJ.
William E. Jourdan, Jr., The Travelers Insurance Company, and the State of Louisiana, Department of Public Safety (Appellees) have moved dismissal of the appeal taken herein by Edgar R. Andrus, Individually and as Administrator of the Estate of his minor son, Ted Andrus (Appellant), for failure of Appellant to timely file the appeal bond ordered by the trial court. We grant the motion and dismiss the appeal.
Judgment was rendered herein on August 29, 1975, rejecting Appellant's demands, with prejudice. On September 5, 1975, formal judgment was signed to said same effect and Appellant timely applied for a new trial. A hearing of Appellant's application for new trial was set for and held October 10, 1975, with counsel for Appellant present in court. The trial court, in the presence of counsel for Appellant, denied the application for new trial. Appellant applied for a devolutive appeal which was granted by the trial court conditioned upon Appellant furnishing bond in the sum of $5,000.00. The required bond was posted January 12, 1976.
A devolutive appeal must be taken and security therefor furnished within ninety days of the court's refusal to grant a new trial where applicant is not entitled to notice of such refusal pursuant to LA-C.C.P. Article 1914. Counsel for Appellant being present when the trial court denied the application for new trial, Appellant was not entitled to notice of said judgment. LA-C.C.P. Article 1914. Since Appellant was not entitled to notice of judgment denying his application for new trial, the ninety day delay for taking and perfecting a devolutive appeal commenced October 11, 1975, and expired January 8, 1976. However, Thursday, January 8, 1976 was a legal holiday (Battle of New Orleans), consequently the delay for perfecting the instant appeal was extended to and expired Friday, January 9, 1976. The bond, filed Monday, January 12, 1976, was therefore untimely.
Failure to timely file the required appeal bond necessitates dismissal of the appeal for failure of appellate jurisdiction to timely attach. Bennett v. Allstate Insurance Company, La.App., 303 So.2d 770, and authorities cited therein.
Appellant's motion to dismiss this appeal is granted and Appellant's appeal is dismissed, with prejudice, at Appellant's cost.
Appeal dismissed.