No. 11505 | La. Ct. App. | May 22, 1980
This matter is before us solely on an appellee motion to dismiss the appeal “or to remand.”
The judgment appealed from was read, rendered and signed on November 8, 1979. It grants plaintiff, Larry J. Halverson, a money award against the defendant, Eagle Trucking Company. On November 12, 1979, Halverson moved for a new trial, seeking to modify the judgment; and, although the trial court entertained a hearing of the motion for a new trial on February 7, 1980, it has not yet either granted or denied the motion. On January 10, 1980 the trial court granted this devolutive appeal to the defendant.
We agree with the general rule expressed in Billeaud v. Perry, 336 So. 2d 539" date_filed="1976-08-12" court="La. Ct. App." case_name="Billeaud v. Perry">336 So.2d 539 (La.App.3d Cir. 1976), to the effect that where, as here, a motion for a new trial was filed timely and that motion has not been acted upon by the trial court, the judgment appealed from is not final.
Accordingly, particularly as the appellant, while reserving all of its rights to appeal when the motion for a new trial is decided, has no objection, we dismiss this appeal, without prejudice, on the ground of prematurity and remand the matter to the trial court.
APPEAL DISMISSED; REMANDED.