Comeaux v. Gulf Insurance Co. , 1974 La. App. LEXIS 3939 ( 1974 )

ELLIS, Judge:

Judgment was signed herein on June 19, 1973, and notice of judgment mailed the same day. On June 28, 1973, plaintiff presented a motion and order for appeal to the judge, who signed it on that date. The motion reads in part as follows:

“. . . . Mover desires to appeal sus-pensively therefrom and in the alternative appeal devolutively therefrom to the Court of Appeal for the First Circuit, State of Louisiana.

“IT IS ORDERED, that a suspensive appeal be granted to the said Alphonse J. Comeaux, returnable to the Court of Appeal for the First Circuit, State of Louisiana, on the 24 day of August, 1973, upon said Alphonse J. Comeaux filing a proper appeal bond herewith.”

The words underlined above were filled in by the judge in his hand, blank spaces having been left in the order for that purpose.

No further action was taken by the plaintiff until October 23, 1973, when he filed an “Amended Motion and Order for Appeal” alleging that “the original order fixing the appeal in this case failed to fix the bond for devolutive appeal. . . .”. He obtained an order fixing the bond for a devolutive appeal at $500.00, which was filed on November 20, 1973.

Under Article 2087 of the Code of Civil Procedure, the delay for filing the appeal bond for a devolutive appeal is 90 days after the expiration of the delay for applying for a new trial. In this case, the delays expired on September 24, 1973. Plaintiff’s bond is clearly filed too late.

Plaintiff claims that his bond was filed too late because of the failure of the trial judge to fix the amount of the devolutive appeal bond at the time the original order was signed, and that this failure prevented the running of the delay for appeal. The contention is without merit. It is the appellant’s responsibility to perfect his appeal timely by filing the bond. The judge gave the appellant what he asked tor, a suspen-sive appeal, when he signed the first order. If appellant had wanted a devolutive appeal, he had only to ask for it within the delays provided by law, and he failed to do so.

Since the appeal bond was filed too late, this Court is without jurisdiction to entertain plaintiff’s appeal, and it is dismissed, at plaintiff’s cost.

Appeal dismissed.