Lemon v. Marrero , 1914 La. App. LEXIS 123 ( 1914 )

His Honor, EMILE GODCHAUX,

rendered the opinion and decree of the 'Court, as follows:

On May 1st, 1914, judgment was rendered and signed, maintaining defendant’s exception and dismissing plaintiff’s suit. More than three judicial days thereafter, namely, May 19th, the plaintiff applied for a new trial, and it was granted. Thereupon defendant appealed and in support thereof contends that the motion applying for a new trial and the judgment granting same should be reversed, as more than three judicial days having elapsed since the signing of the judgment, it was too late for the trial Court to entertain or pass upon a motion for a new trial or in any way to revise its own judgment.

The contention is well founded under U. P., 558, which with certainty fixes the delay within which a new trial should be sought. This delay runs from the rendition of the judgment and not from the date when the judgment ha,s been notified. The requirement as to notice has to do solely with the execution of the judgment' and the delays for appeal.

As the trial Court was wholly powerless to entertain the application for a new trial, it is futile to enquire into or consider the grounds upon which it granted same in the present instance.

Noland & Morancy vs. Bemis, 14 A., 49.

State ex rel. Mahan vs. Bank, 28 A., 874.

The judgment is set aside, annulled .and reversed and it is now decreed that there be judgment dismissing the application for a new trial at the costs of the plaintiff in both Courts

Opinion and decree, November 23, 1914.

Judgment reversed.