8298 | La. Ct. App. | Mar 10, 1981
Elton DEVILLE, Plaintiff-Appellant,
v.
Judge Allen M. BABINEAUX, Defendant-Appellee.
Court of Appeal of Louisiana, Third Circuit.
*979 Elton Deville, in pro. per.
Champagne, Colomb & Brumbaugh, Patrick L. Colomb, Lafayette, for defendant-appellee.
Before DOMENGEAUX, CUTRER and SWIFT, JJ.
SWIFT, Judge.
MOTION TO DISMISS
The plaintiff-appellant, Elton Deville, appearing in proper person, filed suit seeking $50,000 in damages and the impeachment of defendant-appellee, Judge Allen M. Babineaux, for defendant's actions in rendering judgment against him in a personal injury suit. The trial judge sustained a peremptory exception of no right of action dismissing plaintiff's claim. We dismiss the appeal ex proprio motu as being untimely filed under LSA-C.C.P. Article 2087(1).
The chronology of events is as follows:
On June 30, 1980, the trial judge gave written reasons sustaining defendant's peremptory exception of no right of action dismissing plaintiff's claim. The plaintiff filed a motion for a new trial on July 7, 1980. Subsequently, the trial court signed a final judgment on July 18, 1980. The sheriff served plaintiff with notice of the judgment on July 22, 1980. On November 12, 1980, the trial judge denied plaintiff's motion for a new trial. Notice of the denial was sent to the parties on November 21, 1980. Plaintiff filed a motion for a devolutive appeal on January 19, 1981.
The issue is whether an application for a new trial made before the signing of a final judgment can have any effect on appeal delays.
This court in Bordelon v. Dauzat, 389 So. 2d 820" court="La. Ct. App." date_filed="1980-10-08" href="https://app.midpage.ai/document/bordelon-v-dauzat-1693475?utm_source=webapp" opinion_id="1693475">389 So. 2d 820 (La.App. 3rd Cir. 1980) stated that an application for a new trial filed prior to the signing of a final judgment was without effect. In doing so, we cited the case of Chamblee v. Chamblee, 340 So. 2d 378" court="La. Ct. App." date_filed="1976-11-16" href="https://app.midpage.ai/document/chamblee-v-chamblee-1769514?utm_source=webapp" opinion_id="1769514">340 So. 2d 378 (La.App. 4th Cir. 1976) which is factually similar to the present case.
In Chamblee, supra, the trial judge denied an application for a new trial on the same day he signed the final judgment which was filed seven days prior thereto. The court found the application for a new trial to be:
"premature, not timely, and, thus, without legal effect. Hence, this matter falls *980 under subsection (1) of Art. 2087. Accordingly, under LSA-C.C.P. Art. 1974, the delay for a new trial commences to run on the day after the judgment was signed ..."
Here, the trial judge signed the final judgment prior to denying plaintiff's application for a new trial. However, the application for a new trial was still filed prematurely. Thus, it could have no effect.
Since the application for a new trial was ineffective, the delay for filing an application for a new trial began running the day after the sheriff served notice of judgment, viz. on July 23, 1980. LSA-C.C.P. Article 1974(2). The delay for applying for a new trial is seven days exclusive of legal holidays. LSA-C.C.P. Article 1974(1). A devolutive appeal must be taken within 60 days of the expiration of the delay for applying for a new trial. LSA-C.C.P. Article 2087(1). The plaintiff did not file a motion for an appeal until January 10, 1981, over five months past the date on which the delay for applying for a new trial expired.
For the above and foregoing reasons, the appeal is dismissed.
APPEAL DISMISSED.