Clements v. Kimble

LANDRY, Judge. Defendants-appellees, Walter Kimble, Lucy Kimble and The Liberty Mutual Insurance Company, have moved to dismiss the appeal taken by plaintiffs-appellants for appellants’ alleged failure to timely file an appeal bond. We find appellees’ motion well taken and dismiss this appeal. The judgment appealed from was signed January 29, 1970. Notice of judgment, required pursuant to LSA-C.C.P. art. 1913, was duly given January 29, 1970. No application for new trial was made by-either appellants or appellees. On April 29, 1970, ninety days after notice of judgment was given appellants, the trial court entered an order of devolutive appeal conditioned upon appellants posting bond in the sum of $500.-00. As of May 15, 1970, the date of filing of appellees’ motion to dismiss, the appeal bond had not been posted. LSA-C.C.P. art. 2087 provides that a devolutive appeal may be taken and the security therefor furnished within 90 days of the expiration of the delay for applying for a new trial as provided by Article 1974, if no application for new trial has been timely filed. In this case, appellants did not apply for a new trial. LSA-C.C.P. art. 1974 states that the delay for applying for a new trial, when notice [705] of judgment is required according to LSA-C.C.P. art. 1913, is three days, which delay commences the day after the Clerk has mailed or the Sheriff has served the notice of judgment. Since January 29, 1970 was a Thursday, the three day period for making an application for new trial herein did not expire until Monday, February 2, 1970. We likewise note that the ninety day period for taking a devolutive appeal did not expire herein until Monday, April 4, 1970, inasmuch as the ninetieth day fell on Sunday, April 3, 1970. Because appellants did not file the required appeal bond on or before April 4, 1970, this court lacks jurisdiction and the appeal must be dismissed. Ramizest v. Ramizest, 226 La. 973, 77 So.2d 733; Aetna Insurance Company v. Robinson, La.App., 199 So.2d 369. Accordingly, the appeal taken in this matter is dismissed at appellants’ cost. Appeal dismissed.