Baldo v. Thibodaux

Full title: ALBERT J. BALDO v. LESTER J. THIBODAUX

Court: Court of Appeal of Louisiana, Fourth Circuit

Date published: Mar 19, 1976

324 So. 2d 457 (La. Ct. App. 1976)

Opinion

No. 7334.

November 28, 1975. Rehearing Denied January 13, 1976. Writ Refused February 20 and March 19, 1976.

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

Jesse S. Guillot, New Orleans, for plaintiff-appellee.

Norman Mopsik, New Orleans, for defendant-appellant.

Before REDMANN, SCHOTT and MORIAL, JJ.

MOTION TO DISMISS

[2] SCHOTT, Judge.

This is before us on a motion by appellee to dismiss the appeal taken by a lessee from a judgment signed on May 28, 1975, ordering his eviction from leased premises. Appellee's motion is based on the ground that the appeal bond was not posted until June 10, more than 24 hours after the judgment was signed and beyond the time limit prescribed by LSA-C.C.P. Art. 4735.

Upon our own examination of the record we have concluded that the appeal must be dismissed, not because the bond was not posted on time although this was surely the case, but because the judgment of eviction itself was not rendered in compliance with the law.

C.C.P. Art. 4732 provides that "if the court finds the lessor or owner entitled to the relief sought . . . the court shall render immediately a judgment of eviction . . ." In Herman v. Style Line Greetings, Inc., 289 So.2d 876 (La. App. 4th Cir. 1974) we held that this article does not permit a trial judge to take a rule for possession under advisement and subsequently render judgment out of the presence of counsel, and that the provisions of C.C.P. Art. 1913 are not applicable to eviction proceedings.

The judgment appealed from signed on May 28 recites that the case was heard on May 23. Because the trial judge did not comply with the mandate of Art. 4732 requiring an immediate judgment there is no valid judgment of eviction from which an appeal can be taken by the lessee, and accordingly the appeal is dismissed.

Appeal dismissed.

[2] SCHOTT, Judge.

ON APPLICATION FOR REHEARING

[9] PER CURIAM

Our recital that the bond was not posted on time meant not within 24 hours. Since there is no appeal from a non-judgment (which is why this appeal is dismissed) there is no applicable time schedule.

Application denied.