Willie HOWARD v. HERCULES-GALLION CO., et al.
No. 82 CM 0380
Court of Appeal of Louisiana, First Circuit
June 29, 1982
417 So.2d 508
Before LEAR, CARTER and LANIER, JJ.
Gordon Hackman, Boutte, for Willie Howard, plaintiff-appellant.
LANIER, Judge.
The defendant-appellee, Peabody International, Inc., moves to dismiss this unlodged devolutive appeal on the ground it was not timely perfected.
On November 4, 1981, when this case was called for trial on the merits, counsel for the appellant (plaintiff), Willie Howard, filed a written motion for a continuance on the grounds that the plaintiff was not competent to testify and that he was not ready to proceed with the case. After hearing the arguments of counsel, the trial judge denied the motion for the continuance. Counsel for the appellant then advised the court that he was unable to proceed with the trial. Counsel for the appellee made a motion to dismiss the petition of the appellant with prejudice. A judgment of dismissal with prejudice was then verbally rendered by the trial judge in open court in the presence of counsel for the parties. Counsel for the appellant did not request notice of the signing of the judgment at this point in time.
The pertinent dates and facts of this motion to dismiss are as follows:
(1) November 5, 1981—formal judgment signed and filed;
(2) November 13, 1981—appellant filed a request for notice of the date when the judgment was signed;
(3) November 16, 1981—notice of judgment issued by the Clerk of Court;
(4) November 17, 1981—notice of judgment served on counsel for appellant;
(5) November 19, 1981—counsel for appellant filed a motion for a new trial;
(6) March 5, 1982—hearing on the motion for new trial;
(7) March 24, 1982—judgment rendered and signed denying the motion for new trial;
(8) April 1, 1982—motion for devolutive appeal filed.
The time for taking a devolutive appeal is prescribed by
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If, at the conclusion of a trial a case is not taken under advisement but the court does not sign a judgment at the time, a party may make a request of record for notice of the date when the judgment
was signed; and when such a request is made, the clerk shall mail such notice to the party requesting it or to his counsel of record.
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In Guaranty Bank & Trust Company v. Quad Drilling Corporation, 284 So.2d 349 (La.App. 1st Cir. 1973), this court held that Article 1913 did not require that the request for notice of signing of judgment be made at the time the court verbally pronounces its judgment, and that if such a request was filed of record at anytime prior to the conclusion of the trial, that it was a timely and valid request. The issue here presented is when a trial court does not take a case under advisement and renders a verbal judgment, is a request for notice of judgment timely if it is filed during the delay period for applying for a new trial after the formal judgment is signed?
Since counsel for the appellant did not make a request for notice of judgment at the time that the judgment of dismissal was verbally rendered, and did not file such request prior to the time that the formal judgment was signed, the delay for applying for a new trial commenced to run on November 6, 1981, pursuant to Article 1974. We find no authority in the statutory law or jurisprudence that authorizes the interruption1 of the delay period for applying for a new trial once it commences to run. If such an interruption were permitted, an additional delay would be added to the appeal process which is not consistent with a policy of orderly and expeditious appeals. It is our opinion that a request for notice of judgment may be timely filed up to and including the day that the formal judgment is signed. Once the period for applying for a new trial commences to run, an application for notice of judgment pursuant to Article 1913 is untimely and of no legal effect.
Since the application for notice of judgment filed on November 13, 1981, did not interrupt the delay period for applying for a new trial, that period expired on November 17, 1981.2 Accordingly, the application for a new trial filed by appellant on November 19, 1981, was untimely and of no legal effect. The sixty (60) day delay for taking a devolutive appeal commenced to run on November 18, 1981, and expired on January 18, 1982. Appellant’s motion for this devolutive appeal filed on April 1, 1982, was untimely and of no legal effect. Since the appellant failed to appeal within the delays allowed by law, this court is without jurisdiction to hear this appeal.
The gratuitous mailing of notice of judgment by the clerk, when such notice was not required because the request for it was untimely, does not extend the time within which application for a new trial may be filed or an appeal may be taken. Mitchell v. Louisiana Power & Light Co., 380 So.2d 743 (La.App. 4th Cir. 1980). An untimely application for a new trial does not affect, interrupt or extend the delay for timely taking an appeal. Willie v. Otasco, 351 So.2d 844 (La.App. 1st Cir. 1977).
The instant case is one of three cases3 which were consolidated for purposes of trial on the merits by a judgment dated May 9, 1980. Before the date fixed for trial, the other two cases were compromised leaving only the instant case to be adjudicated. Appellant argues that a request for notice of judgment filed on March 10, 1977,
For the foregoing reasons, the appeal is dismissed at appellant’s costs.
APPEAL DISMISSED.