No. 7712 | La. Ct. App. | Apr 9, 1980
Lead Opinion
MOTION TO DISMISS
The plaintiffs-appellees, David L. Thibo-deaux and Donald M. Perron, and defendant-appellee, Western World Insurance Company, move to dismiss the appeal of defendant-appellant, Security Timber Company, Inc. on the grounds that the appeal was not timely.
We dismiss the appellant’s appeal.
Formal judgment was signed and rendered in this matter on April 26, 1979.
On that date, April 26, 1979, the trial judge signed an order at the request of appellant, Security Timber Company, ordering all parties to show cause on May 29, 1979, why a new trial should not be granted.
On May 29,1979, the motion for new trial was argued and submitted. At the conclusion of the argument, the trial judge denied the appellant’s motion for the new trial. The minutes reflect that counsel for all parties were present in court on that date.
On October 5, 1979, Security Timber Company obtained a “judgment denying its motion for a new trial”. On that same day, Security Timber Company, Inc. obtained an order granting it a suspensive appeal of the judgment of April 26, 1979.
According to C.C.P. Art. 2123, a suspen-sive appeal must be taken within thirty days of:
“. . . (2) the court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or . . .”
The appeal taken October 5, 1979 was taken more than four months after the court’s denial of the application for a new trial on May 29, 1979. The appeal cannot be maintained either as a suspensive or devolutive appeal unless effect is given to the signing of the formal judgment denying the motion for the new trial on October 5, 1979.
The judgment of October 5, 1979 cannot be allowed to extend the time delays. In Doolan v. Doolan, 349 So. 2d 980" court="La. Ct. App." date_filed="1977-08-29" href="https://app.midpage.ai/document/doolan-v-doolan-1606198?utm_source=webapp" opinion_id="1606198">349 So.2d 980 (La.App. 3rd Cir. 1977), we faced the same situation and stated:
“As to a motion for new trial which is not taken under advisement, the jurisprudence is well settled that no notice of judgment is required, even in cases where a formal judgment denying the motion is later rendered.”
In Kleinpeter v. Kleinpeter, 246 So. 2d 240" court="La. Ct. App." date_filed="1971-03-15" href="https://app.midpage.ai/document/kleinpeter-v-kleinpeter-1732908?utm_source=webapp" opinion_id="1732908">246 So.2d 240 (La.App. 1st Cir. 1971), the court stated:
“. . .a judgment denying an application for a new trial is interlocutory which need not be signed to be effective where the motion itself was not taken under advisement by the trial judge so as to require notice of the signing of the judgment in compliance with C.C.P. Article 1914.”
As the appellant was not entitled to notice according to Article 1914 of the Code of Civil Procedure, the delay began to run where the application for a new trial was denied on May 29, 1979. Appellant’s appeal, taken some four months after the denial of the new trial is too late. We are without jurisprudence to hear an untimely appeal.
APPEAL DISMISSED.
Rehearing
ON REHEARING
This matter is before us at this time on a motion for rehearing. We previously dismissed the appeal taken by defendant-appellant, Security Timber Co., Inc., on the grounds that the appeal was not perfected timely. Since the original hearing on the motion to dismiss, additional facts have been presented to this court. We now recall our previous order dismissing the appeal and reinstate defendant’s appeal.
Plaintiffs, David Thibodeaux and Donald Perron, originally instituted suit against Western World Insurance Company and Security Timber Company, Inc. Following a trial, judgment was rendered April 26,1979, in favor of plaintiffs, and against Security Timber Company, Inc. Plaintiffs’ demands against defendant, Western World Insurance Company were rejected. Security Timber Company’s motion for new trial was orally denied on May 29, 1979. On October 5, 1979, the trial judge signed a formal judgment denying appellant’s motion for new trial. On the same day, appellant perfected a suspensive appeal from the April 26, 1979 judgment. The appellees filed a motion to dismiss the appeal on the basis that it was perfected untimely. We granted this motion to dismiss. Thereafter, appellant filed this motion for rehearing.
Appellant contends that the trial judge refused to sign its order for suspensive appeal until a formal judgment denying appellant’s motion for a new trial was presented and signed.
Following argument on appellant’s motion for new trial, the court stated,
“Okay. Gentlemen, I am going to rule on this now and I’ll deny the motion for a new trial. Prepare a judgment and send it to me.”
After the denial of its motion for new trial, appellant filed a motion for suspensive appeal. In September, 1979, appellant’s counsel received a call from Judge Cored, the presiding judge, informing counsel that he could not sign the order for suspensive appeal until a formal judgment denying ap
We held, at the original hearing on the motion to dismiss, that appellant’s motion for suspensive appeal was perfected untimely. That finding was correct. However, the untimeliness of the appeal was not the fault of appellant. Appellant filed a motion for appeal after its motion for new trial was orally denied. The trial judge refused to sign the order for appeal until a formal judgment denying appellant’s motion for new trial was signed on October 5, 1979. Since appellant’s motion for new trial was not take under advisement, the judgment denying the motion did not have to be signed. Kleinpeter v. Kleinpeter, 246 So. 2d 240" court="La. Ct. App." date_filed="1971-03-15" href="https://app.midpage.ai/document/kleinpeter-v-kleinpeter-1732908?utm_source=webapp" opinion_id="1732908">246 So.2d 240 (La.App. 1st Cir. 1971).
C.C.P. art. 2161 provides, in pertinent part,
“An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. An appeal shall not be dismissed because of any irregularity, error or defect unless it is imputable to the appellant.” (Emphasis supplied)
In the instant action, the appeal was perfected untimely because the trial judge erroneously refused to sign the appeal order until a formal judgment denying appellant’s motion for new trial had been signed. The failure of the trial court to promptly consider and sign the appellant’s motion for a suspensive appeal is not an irregularity, error or defect imputable to the appellant. Hall v. Board of Supervisors, Southern University, etc., et al., 387 So. 2d 643" court="La. Ct. App." date_filed="1980-10-06" href="https://app.midpage.ai/document/hall-v-board-of-suprs-southern-university-1761614?utm_source=webapp" opinion_id="1761614">387 So.2d 643 (La.App. 1st Cir. 1980).
For the foregoing reasons, we find that the error or defect is not and should not be imputable to the appellant and that this appeal was timely perfected. Therefore, we recall and vacate our previous judgment dismissing the appellant’s appeal, and we further hold that this court has jurisdiction to consider this appeal.
APPEAL REINSTATED.