Travelers Indemnity Co. v. Allen , 1961 La. App. LEXIS 1407 ( 1961 )

LUTHER E. HALL, Judge pro. tem.

This matter comes before us on a motion timely filed by plaintiffs-appellees (see LSA-C.C.P. art. 2161) seeking to have this appeal dismissed on the ground that appellant did not move for the appeal within the time prescribed by law.

This is an appeal from the First City Court of the City of New Orleans and involves more than $100, consequently the provisions of LSA-C.C.P. art. 5002 are applicable here. That article reads in part as follows:

“A new trial may be applied for within three days, exclusive of legal holidays, of the date of judgment, or within three days of the service of notice of judgment when necessary.

“A devolutive or suspensive appeal to the proper appellate court may be granted if applied for within ten days after the expiration of the delay for applying for a new trial, or within ten days of the denial of a new trial.”

In this case the defendant, having filed an answer to the suit no notice of judgment was necessary (LSA-C.C.P. arts. 5002 and 4898). The defendant did not make application for a new trial.

The judgment of the trial court was signed on May 23, 1961 and appellant’s motion for a devolutive appeal was not filed until June 14,1961 — nineteen days after the expiration of the three day delay for a new trial.

This appeal, not having been timely applied for, must be dismissed.

Appeal dismissed.