Thomas v. Shelton

DOMENGEAUX, Judge.

MOTION TO DISMISS

Defendant-appellee, Thomas Robert Shelton, moves to dismiss the devolutive appeal of plaintiff-appellant, Robert Earl Thomas, on the grounds that appellant’s motion for appeal was untimely. We agree and dismiss the appeal.

Appellee was granted summary judgment dismissing appellant’s demands by an oral judgment rendered in open court on February 1, 1988. Appellant’s attorney was present in court when the judgment was rendered but did not request notice of judgment. The written judgment dismissing appellant’s suit in accordance with the above ruling was signed by the trial judge on February 4, 1988. The motion and order for appeal was not filed and signed by the trial court until April 25, 1988.

When no motion for a new trial is made with the trial court following the signing of the final judgment, the delays for taking a suspensive or devolutive appeal begin to run at the expiration of the delay for applying for a new trial. La. Code Civ. Proc. Arts. 2087 and 2123. A party is given seven (7) days, exclusive of legal holidays, to apply for a new trial following the signing of the judgment or the mailing of the notice of rendition of the judgment, if such notice is required. La. Code Civ.Proc. Art. 1974.

In the instant suit, appellant never requested notice of judgment to be sent. Thus, appellant had seven (7) days, exclusive of holidays, from the signing of the judgment to move for a new trial. La.C. C.P. Art. 1974. Since judgment was signed on February 4, 1988, appellant had until February 17, 1988, (February 15 and 16 being legal holidays) to move for a new trial. No motion for new trial was made.

Therefore, appellant had sixty (60) days from February 17, 1988, to take a devolu-tive appeal from this judgment. La.C.C.P. Art. 2087. This gave appellant until April 18, 1988, to take his appeal. The appeal was not taken until April 25,1988, and was, therefore, untimely.

In accordance with the above reasons, the appeal of the plaintiff-appellant is hereby dismissed at his cost.

MOTION GRANTED. DEVOLUTIVE APPEAL DISMISSED.