Brown v. Hilton , 1971 La. App. LEXIS 6090 ( 1971 )

BLANCHE, Judge.

Judgment was signed and filed herein on April 8, 1970, dismissing plaintiffs’ suit at their costs. On July 6, 1970, counsel for plaintiffs wrote a letter to the Clerk of Court enclosing therewith an original and one copy of a petition for an appeal in for-ma pauperis with the request that the Clerk file the same in court. The aforesaid petition prayed for an order granting unto plaintiffs a devolutive appeal in for-ma pauperis in accordance with the provisions of Article 5181 of the Louisiana Code of Civil Procedure. The order granting the appeal was not signed by the trial judge until September 2,1970.

This Court, ex proprio motu, after examining the record and discerning the foregoing facts, ordered appellants to show cause by briefs on or before May 8, 1971, why the appeal should not be dismissed. Appellants have failed to file a brief.

The order was not signed by the trial judge until long after the delays had elapsed for taking a devolutive appeal as provided for in Code of Civil Procedure Article 2087.

Article 2121 of the Code of Civil Procedure provides that an appeal is taken by obtaining an order therefor. Filing a petition and order of an appeal with the Clerk prior to the expiration of the delays for appeal does not meet the foregoing requirement. It is counsel’s responsibility to see that an order of appeal is obtained timely and not that of the Clerk of Court. The failure to obtain timely the trial judge’s signature to the order granting the appeal is fatal and the appeal is dismissed.

Appeal dismissed.