Opinion
No. 11724.
October 17, 1977.
APPEAL FROM NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA, HONORABLE FRED A. BLANCHE, JR., J.
Jules A. Carville, III, LaPlace, of counsel for plaintiff-appellant Kenner Marine Machinery, Inc.
Charles Seeman, Jr., New Orleans, of counsel for defendant-appellee Maryland Cas. Co.
Donald Cave, Baton Rouge, of counsel for defendant-appellee, William Bezdek, et al.
Asst. Gen. Counsel Sharon Frazier, Baton Rouge, of counsel for defendant-appellee Dept. of Highways.
Before LANDRY, SARTAIN and ELLIS, JJ.
ON MOTION TO DISMISS APPEAL.
The Department of Highways, State of Louisiana (Appellee), has moved dismissal of the appeal taken by plaintiff (Appellant) from judgment maintaining Appellee's exception of no right of action. The motion is predicated on Appellant's alleged untimely posting of the required appeal bond. We grant the motion and dismiss the appeal.
On May 11, 1977, judgment was rendered in the presence of counsel for Appellant, maintaining Appellee's said exception and dismissing Appellant's suit as to Appellee, with prejudice. Judgment was signed that same day. Appellant did not apply for a new trial. On June 7, 1977, Appellant applied for and was granted a suspensive appeal or, alternatively, a devolutive appeal, on posting bond in the sum of $250.00. Appellant posted bond on August 5, 1977.
A suspensive appeal must be taken and bond posted therefor within 30 days of expiration of the delays for applying for a new trial when no application for new trial has been made. La.C.C.P. Article 2123. The delay for taking a devolutive appeal and posting bond therefore is 60 days within expiration of the delays for applying for a new trial when a new trial has not been requested. La.C.C.P. Article 2087.
A new trial must be applied for within 7 days, excluding holidays, of the signing of judgment when notice of judgment is not required. La.C.C.P. Article 1974.
Notice of judgment is not required when judgment is rendered at the conclusion of trial and the party against whom judgment is rendered does not request notice of judgment when judgment is signed. La.C.C.P. Article 1913.
Notice of judgment was not required in this case. Article 1913, above. Since notice was not required, the delays for applying for new trial herein commenced Wednesday, May 12, 1977, and expired Friday, May 20, 1977. The sixty day delay for perfecting a devolutive appeal herein commenced May 21, 1977, and expired Tuesday, July 19, 1977. Appellant's posting of bond on August 5, 1977, was untimely.
Failure of Appellant to timely post the required appeal bond is a jurisdictional defect mandating dismissal of the appeal. Wright v. Mark C. Smith Sons Partnership, 264 So.2d 304 (La.App. 1st Cir. 1972); Something Irish Company v. Rack, 333 So.2d 773 (La.App. 1st Cir. 1976).
The appeal herein taken by Appellant is dismissed as to defendant State of Louisiana, Through the Department of Highways, at Appellant's cost.
Appeal dismissed.