Opinion
No. 4459.
November 7, 1973. Rehearing Denied December 3, 1973.
APPEAL FROM FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, STATE OF LOUISIANA, HONORABLE ALLEN M. BABINEAUX, J.
Mouton Beard by James E. Mouton Lafayette, for plaintiff-appellant.
Ronald J. Judice, Lafayette, for defendants-appellees.
Before FRUGE, SAVOY and MILLER, JJ.
Before FRUGE, SAVOY and MILLER, JJ.
ON MOTION TO DISMISS APPEAL
Defendants-appellees, Ed Dauphin, Director, Division of Regulatory Codes and Permits, City of Lafayette, Louisiana, and City of Lafayette Board of Zoning Adjustment, moved to dismiss the appeal of plaintiff-appellant, The Magnum Corporation, on the ground that the appeal is not from a final judgment or from an interlocutory judgment causing irreparable injury. LSA-C.C.P. 2083. The Motion to Dismiss is denied.
Written reasons were assigned by the trial court on May 24, 1973, and a final judgment was read and signed in open court on June 11, 1973. On June 13, 1973, plaintiff petitioned for a devolutive appeal which was granted that same day. In his Petition for Appeal, plaintiff stated:
"Petitioner desires to appeal devolutively the final Judgment rendered in the above cause on the 24th day of May, 1973."
Defendants-appellees alleged that the above statement means that plaintiff has appealed the court's reasons for judgment and not the final judgment signed June 11th, and therefore plaintiff's appeal must be dismissed. In support of their motion to dismiss, defendants-appellees cite Abramson v. Piazza, 198 So.2d 565 (La.App. 3 Cir. 1967).
In Abramson this court held that a final judgment was not signed. The Abramson case is distinguished on that basis.
Article 2083 of the Code of Civil Procedure provides that an appeal may be taken from a final judgment or from an interlocutory judgment which may cause irreparable injury. Defendants-appellees do not contend that there is no final judgment in this case, only that plaintiff has appealed from the Reasons for Judgment rendered May 24th, rather than from the final judgment signed June 11th. The fact that plaintiff inadvertently placed the date of the Reasons for Judgment rather than the date of the final judgment in its petition for appeal is immaterial.
The motion to dismiss the appeal is denied. Costs of this motion are assessed to defendants-appellees.
Motion denied.
ON APPLICATION FOR REHEARING
Defendants appellees' [Dauphin et al] application for rehearing directs our attention to errors of fact contained in the foregoing opinion. Now that we understand the correct facts, we again conclude that the motion to dismiss is without merit.
Written reasons were assigned by the trial court on May 24, 1973. On June 13, 1973 the trial court signed an order granting plaintiff [Magnum] a devolutive appeal "from the judgment rendered" in this case. The order set the bond for plaintiff's devolutive appeal at $200. On June 15, 1973 the judgment rendered May 24th was signed in open court, and this judgment was filed in the record on June 18, 1973. The June 13 order granting plaintiff's appeal was filed in the record on June 19, 1973. On that same day, the $200 appeal bond was filed with the Clerk of Court. On June 20, 1973, defendants appellees were served with the Clerk of Court's notice that "on the 19 day of June, 1973, plaintiff filed a petition for a devolutive appeal."
LSA-C.C.P. Art. 2121 states that an order of appeal may be granted on oral motion in open court, or on petition. The fact that the order granting the appeal was signed before the judgment was signed is immaterial under the facts of this case. The order granting the appeal and the appeal bond were both filed of record the day after the signed judgment was filed in the record.
The application for rehearing is denied.