Opinion Number ( 1996 )

Dear Judge Mitcham:

This office is in receipt of your recent opinion request in which you present the following issue for our review:

Whether the number of days within the statute providing the rule to vacate being returnable not earlier than third day after service should be counted as calender days or working days.

Article 4732 of the Louisiana Code of Civil Procedure states in pertinent part:

The court shall make the rule returnable not earlier than the third day after service thereof, at which time the court shall try the rule and hear any defense which is made.

Article 5059(3) of the Louisiana Code of Civil Procedure provides the construction rules for the computation of time. It states:

In computing a period of time allowed or prescribed by law or by order of court, the date of the act, event, or default after which the period begins to run is not to be included. The last day of the period is to be included, unless it is a legal holiday, in which event the period runs until the end of the next day which is not a legal holiday.

A half-holiday is considered as a legal holiday. A legal holiday is to be included in the computation of the period of time allowed or prescribed, except when:

(3) The period is less than seven days.

The Fourth Circuit Court of Appeal in Lichtentag v.Burns, La.App., 258 So.2d 211, was presented with the issue of determining how to count the period of time provided for in La. C.C.P. Articles 4701 and 4732. This court was of the opinion that these articles were governed by La. C.C.P. Article 5059 and that the legal holidays are to be excluded from the computation of the period because the time periods involved are less than seven days. The Fourth Circuit also stated that these two articles 4701 and 4732 are separate time periods. Therefore, based on the provisions of La. C.C.P. Article 5059(C) and theLichtentag decision, it seems clear that both the five day period provided in article 4701 and three day service in article 4732 are calculated in legal/working/business days since each is less than a period of seven days.

I trust this answers your question. If this office can be of any further assistance, please feel free to contact us.

Yours very truly,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: ROLAND J. DARTEZ Assistant Attorney General

RPI/RJD/bs/pb rjd/opinions/ 96-64