Maison De Sante, Inc. v. Boone ( 1979 )

GUIDRY, Judge.

MOTION TO DISMISS

We issued, ex proprio motu, a rule to show cause directed to the defendant-appellant, Martha Boone, as to why her appeal should not be dismissed as having been untimely perfected. LSA-C.C.P. Art. 2087(1). After we issued the rule, the plaintiff-ap-pellee, Preston Aucoin, filed a Motion to Dismiss the appeal of the defendant-appellant. The defendant-appellant has neither answered the appellee’s Motion to Dismiss, nor responded to our rule to show cause.

We dismiss the defendant-appellant’s appeal.

This is a suit for declaratory judgment. The matter was tried on March 13,1979 and taken under advisement. On March 27, 1979 a formal judgment was rendered in favor of the plaintiff-appellee and notices of judgment were mailed that same day. No motion for a new trial was filed. On June 8, 1979, the defendant-appellant moved for and received an order of appeal in forma pauperis returnable to this court on August 6, 1979.

Applicable here is LSA-C.C.P. Art. 2087(1), which provides that a devolutive appeal must be taken within sixty days of the expiration of the delay for applying for a new trial, as provided for by Art. 1974, if no application has been timely filed. Under the facts of this case, the appellant had until April 5, 1979 in which to file a motion for a new trial, and until June 4 in which to perfect her devolutive appeal. Appellant’s appeal having not been perfected until June 8, 1979, was therefore untimely taken, and must be dismissed.

For the reasons assigned, the appeal of the defendant-appellant is hereby dismissed at her cost.

APPEAL DISMISSED.