Jones v. Youngblood

MOTION TO DISMISS APPEAL

Before GUIDRY, FORET and JOHNSON, JJ.

GUIDRY, Judge.

The plaintiff-appellee, John E. Jones, moves to dismiss the appeal of defendant-appellant, Wayne D. Joiner. The motion is opposed.

We grant the motion to dismiss.

On March 26, 1976, plaintiff filed suit against defendants Ora Cripps Youngblood and Wayne D. Joiner,¹ seeking cancellation of a buy-sell agreement and judgment for the amount deposited at the time said agreement was confected. Youngblood then filed a third party demand against Joiner. On June 9, 1976, the trial court granted plaintiff’s motion for summary judgment as to defendant Youngblood only.

On August 19,1977, the trial court signed a final judgment in favor of the third party plaintiff, Ora Cripps Youngblood, and against the third party defendant, Wayne D. Joiner. Joiner’s timely motion for a new trial was denied on September 20,1977, and on September 21, 1977, he applied for and was granted a devolutive appeal from both the judgment of June 9, 1976 and the judgment dated August 19, 1977. Plaintiff-ap-pellee Jones seeks dismissal of Joiner’s appeal insofar as the June 9,1976 judgment is concerned on two grounds; first that Joiner has no standing to appeal from said judgment and secondly, in any event the delay for appealing from said judgment has long expired.

We need not determine whether Joiner has standing or sufficient interest entitling him to appeal from the judgment of June 9, 1976, for assuming arguendo that he does it is obvious that the delay for appealing from said judgment has long expired.

A summary judgment is a final judgment, and an appeal must be taken within the time and in the manner specified for final judgments. LSA-C.C.P. art. 968. Barrois v. Service Drayage Company, 250 So.2d 135 (La.App. 4th Cir. 1971). Since Joiner’s appeal was not perfected until well over a year after the summary judgment was granted, it is untimely insofar as it relates to the summary judgment.

However, the appeal is timely as to the final judgment signed on August 19, 1977.

For the reasons assigned, the appellant’s appeal is dismissed as to the judgment of June 9, 1976, but is maintained as to the judgment of August 19, 1977.

APPEAL DISMISSED IN PART AND MAINTAINED IN PART.

1 . For purposes of trial, this suit was consolidated with the suit entitled Youngblood v. Joiner, trial docket Number 97,520.