Guiffre v. Montgomery Ward & Co.

236 So. 2d 66 | La. Ct. App. | 1970

MILLER, Judge.

Montgomery Ward & Co., Inc. and James L. Wilson moved to dismiss the devolutive appeal and in the alternative, answered the appeal. They contend that the appeal should be dismissed for the reason that they did not receive notice that the appeal was taken by Phillip P. Guiffre, M. D. and National Surety Corporation until May 4, 1970. On that day counsel for relator received notice from the Clerk, Court of Appeal, Third Circuit, that the transcript of the appeal was filed April 27, 1970.

All parties were notified that the trial court judgment was signed January 6, 1970. Dr. Guiffre and National Surety made oral motion for appeal on January 16, 1970. There is no showing that the Clerk of Court notified Montgomery Ward and Wilson of the appeal. The failure of the Clerk to mail this notice does not affect the validity of the appeal. LSA-C.C.P. 2121. The devolutive appeal bond was filed February 3, 1970. The appeal was timely made and perfected. The motion to dismiss is denied.

The answer to the appeal by Montgomery Ward and Wilson was filed May 8, 1970. Since the transcript was lodged April 27, 1970, the answer to the appeal was timely filed. LSA-C.C.P. 2133.

We note on our own motion that Montgomery Ward and Wilson seek by their answer to the appeal, to appeal against third party defendants, Rios Lee Montalvo and Guiffre Enterprises, Inc. Since these third party plaintiffs did not appeal the trial court judgment, and since the delays for taking a devolutive appeal have run (LSA-C.C.P. 2087), the May 8, 1970 answer to the appeal by Montgomery Ward and Wilson insofar as it seeks to overturn the trial court’s decision in favor of Montalvo and Guiffre Enterprises, comes too late and is dismissed. LSA-C.C.P. 2133. See Howard v. Insurance Company of North America, 159 So.2d 560 (La.App.3d Cir. 1964).

Motion to dismiss denied.