Schouest v. Loewenthal

McBRIDE, Judge. Plaintiff instituted this suit against the two defendants solidarily, seeking to recover damages for personal injuries and for injuries sustained by his automobile, arising out of a collision which occurred on April 30, 1948, and recovered judgment for $460 against Harold Loewenthal, the driver of the automobile involved in the collision with plaintiff’s car, and Harold Loewenthal has attempted to appeal devolutively. Plaintiff’s suit as to the other defendant, Otto R. Loewenthal, was dismissed, and as plaintiff did not take an appeal from the judgment, Otto R. Loewenthal is not before the court. Plaintiff-appellee has presented a motion to dismiss Harold Loewenthal’s appeal, assigning as the reason for dismissal that the appeal was not perfected within one.year from the date on which the judgment was signed. From an examination of the record it is manifest that the appeal must be dismissed. The judgment was signed April 25, 1949, the order of appeal was granted on April 26, 1950, but the bond of appeal was not filed until May 5, 1950. C. P. art. 593 provides that no appeal will lie after a year has expired, to be computed from the day on which the final judgment was rendered. The jurisprudence is now well settled that the one year allowed for the taking of a devolutive appeal is the limit of time in which the taking of the appeal must be completed by the filing of the appeal bond, in cases where a bond'is required by law and by the order granting the appeal. The appellate court does not acquire jurisdiction of appeals which have not been perfected by the filing of the bond within the prescribed time, and it is the duty of the court tq even dismiss such appeals ex proprio motu. Fisher v. International Brotherhood of Electrical Workers, Local No. B-130, 218 La. 243, 48 So.2d 911; Arnold v. Arnold, 217 La. 362, 46 So.2d 298; Dickerson v. Hudson, 201 La. 915, 10 So.2d 700; Mount Olive Baptist [426] Church v. New Zion Baptist Church, 198 La. 896, 5 So.2d 144; LaRue v. Adam, La. App., 55 So.2d 585. The appeal taken by Harold Loewenthal be and the same is hereby dismissed. Motion sustained. Appeal dismissed.