Simon v. Smith

MOTION TO DISMISS

FORET, Judge.

Plaintiff-appellee, Virgil A. Simon, moves to dismiss the suspensive appeal of defendant-appellant, St. Frances Cabrini Hospital of Alexandria, Ine., as not being timely perfected.

Judgment was rendered on December 1, 1983. Defendant-appellant filed a motion to appeal on January 6, 1984.

A suspensive appeal must be filed within thirty (30) days after “the expiration of the delay for a new trial, as provided by Article 1974, if no application has been filed timely.” LSA-C.C.P. Article 2123(1). Louisiana Code of Civil Procedure, Article 1974 provides that the “delay for applying for a new trial shall be seven days . this delay commences to run on the day after judgment was signed.”

In this case since the written judgment was signed on December 1, 1983; the delay for requesting a new trial commenced running on December 2, 1983 and ended seven days later (excluding Saturday & Sunday) on December 12, 1983. The period during which the suspensive appeal could be filed began running on December 13, 1983 and ended thirty (30) days later (including Saturday & Sunday) on January 11, 1984. Since the defendant-appellant filed a motion for a suspensive appeal on January 6, 1983 within the appeal delay provided by the Louisiana Code of Civil Procedure, the appeal was timely filed, and the motion to dismiss the appeal must be denied.

MOTION DENIED.