Kaplan Assoc. v. Coastal A.C. Elec

Full title: KAPLAN ASSOCIATES, INC., PLAINTIFF-APPELLEE, v. COASTAL AIR CONDITIONING…

Court: Court of Appeal of Louisiana, Third Circuit

Date published: Apr 7, 1976

328 So. 2d 696 (La. Ct. App. 1976)

Opinion

No. 5399.

March 10, 1976. Rehearing Denied April 7, 1976.

APPEAL FROM FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, STATE OF LOUISIANA, HONORABLE ALLEN M. BABINEAUX, J.

Emile C. Toups, Lafayette, for defendant-appellant.

Caliste Beard, Jr. by David H. Clarke, Lafayette, for plaintiff-appellee.

Before WATSON, CUTRER and PETERS, JJ.

ON MOTION TO DISMISS APPEAL

[2] WATSON, Judge.

The plaintiff-appellee, Kaplan Associates, Inc. moves to dismiss the appeal of the defendant-appellant, Coastal Air Conditioning and Electrical Works, Inc., on the grounds that the defendant-appellant failed to timely post its appeal bond.

We dismiss defendant-appellant's appeal.

Judgment was rendered in this matter on June 4, 1975, and notices of judgment were mailed to all parties on June 10, 1975. On June 19, 1975, the defendant-appellant timely filed a Motion for a New Trial which was heard on July 21, 1975 and taken under advisement. On August 4, 1975 judgment was rendered denying the defendant-appellant's Motion for a New Trial and Notices of this judgment were mailed to all parties on August 4, 1975.

On October 31, 1975 the defendant-appellant moved for and was granted a devolutive appeal to this court. The devolutive appeal bond was set for $500.00, which the defendant-appellant did not file until December 29, 1975.

Article 2087(3) provides that a devolutive appeal must be taken within ninety (90) days of the date of the mailing of notices of the court's refusal to grant a timely application for a new trial. Notices of the trial court's judgment denying the defendant-appellant's Motion for a New Trial were mailed to all parties on August 4, 1975 and, therefore, the ninety (90) day period provided by LSA-C.C.P. art. 2087(1) for taking a devolutive appeal commenced to run on August 5, 1975, and expired on November 3, 1975 [November 2, 1975 being a legal holiday], fifty-six (56) days prior to the defendant-appellant's filing its appeal bond.

The defendant-appellant's appeal must, therefore, be dismissed, for it is well settled that an appellate court does not acquire jurisdiction of a devolutive appeal unless the bond is filed within the time prescribed. Pan-American Petroleum Corporation v. Cocreham, 251 La. 705, 206 So.2d 79 (1968) and cases cited therein; Freeman v. Liberty Mutual Insurance Co., 289 So.2d 875 (La.App. 3rd Cir. 1975).

APPEAL DISMISSED.