Basham v. Kilman , 1985 La. App. LEXIS 9863 ( 1985 )

PER CURIAM.

In the instant case, defendant has filed an appeal of a summary judgment rendered by the City Court of Baton Rouge, which awarded damages to plaintiffs for breach of a rental agreement by the defendant on a townhouse leased by her from the plaintiffs. Because the timeliness of the appeal was seriously questioned, this court had issued, ex proprio motu, an order to show cause why the appeal should not be dismissed. The record reveals the following pertinent events which occurred in the city court.

September 26,1984 Plaintiffs’ motion for summary judgment taken under advisement.

October 17,1984 Judgment rendered in favor of plaintiffs.

October 30,1984 Written judgment signed.

October 31, 1984 Notice of judgment mailed.

November 9,1984 Application for rehearing filed by defendant.

January 22,1985 Application for rehearing heard and submitted.

February 13,1985 Rehearing denied.

February 27,1985 Petition for suspensive appeal filed.

March 13, 1985 Suspensive appeal granted upon furnishing bond.

April 29, 1985 Suspensive appeal converted to devolutive appeal.

In city court, there is a three day (exclusive of legal holidays) delay to apply for a new trial. La.C.C.P. art. 4919. Notice of judgment was required in this case as the motion for summary judgment had been submitted, La.C.C.P. art. 4917A(2). The delay for applying for a new trial commenced the day after the clerk mailed notice of the judgment. La.C.C.P. arts. 4917(C), 4919. Thus, even if the Court considers defendant’s application for a rehearing to be essentially an application for a new trial, it was untimely. The new trial delay began on Friday, November 2, 1984¹ and expired on Tuesday, November 6, 1984. An untimely application for new trial has no effect on the appeal delay of 10 days. See, La.C.C.P. art. 5003. Defendant’s petition for (suspensive) appeal was filed almost four months after the mailing'of notice of judgment to defendant’s attorney and is therefore untimely.

For these reasons, we order the appeal herein dismissed at appellant’s costs.

APPEAL DISMISSED.

1 . Thursday November 1 was All Saints' Day and a legal holiday. La.R.S. 1:55.