Opinion
No. 5776.
May 1, 1973.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE HENRY J. ROBERTS, JR., J.
Seelig Cosse, Irvy E. Cosse, Jr., New Orleans, for plaintiff-appellant.
Jones, Walker, Waechter, Poitevent, Carrere Denegre, Ignatz G. Kiefer, New Orleans, for defendants-appellees.
Before REGAN, REDMANN and STOULIG, JJ.
Petitioner herein instituted suit for damages against Avis Rent-A-Car System, Inc., and its insurer, Fireman's Fund American Insurance Company to recover for personal injuries sustained in an automobile accident. By supplemental and amended petition, Liberty Mutual Insurance Company was likewise joined as a party defendant in this cause.
Exceptions of no right or cause of action were pleaded by Liberty Mutual Insurance Company and a motion for summary judgment was filed by Avis Rent-A-Car System, Inc., both of which sought dismissal of plaintiff's demand. These matters were heard by the trial court on June 23, 1972 and taken under advisement. On July 3, 1972 judgment was rendered in favor of defendants dismissing plaintiff's demand.
This court, on its own motion, has raised the question of whether the devolutive appeal bond has been timely filed herein thereby giving jurisdiction to this court to hear the plaintiff's appeal.
Notice of judgment was mailed to counsel for plaintiff on July 3, 1972. Normally the delay for applying for a new trial would have commenced to run on the following day pursuant to C.C.P. art. 1974; however, since July 4 was a legal holiday, the time began to run on July 5, 1972 and expired on July 7. Plaintiff had 90 days from July 7 or until October 5 within which to perfect his appeal.
The record reflects that plaintiff's devolutive appeal bond was not filed until October 10. Accordingly, plaintiff has not properly perfected his appeal and the appeal must therefore be dismissed since we lack jurisdiction to consider the matter.
Appeal dismissed.
I concur on the ground that Orrell v. Southern Farm Bur. Cas. Ins. Co., 248 La. 576, 180 So.2d 710 (1965) obliges us to dismiss.
But note grant of writ, 262 La. 1069, 266 So.2d 213, to review Wright v. Mark C. Smith Sons, 264 So.2d 304 (La.App. 1972). See also dissent from writ refusal, Bonvillian v. Lawyers Title Ins Corp., 262 La. 1175, 266 So.2d 450 (1972).