Phillips v. Bergeron

SARTAIN, Judge. Plaintiff, Rawlston D. Phillips, Jr., provisional administrator of the Succession of Rawlston D. Phillips, instituted suit against Belvin F. Bergeron, Sheriff and Ex-Officio Tax Collector, N. F. Pecquet, Jr., Assessor for the Parish of West Baton Rouge, and the Louisiana Tax Commission, seeking a refund of certain property taxes. Defendants filed an exception of no cause of action which was sustained on September 9, 1971, dismissing plaintiff’s suit. Plaintiff timely filed an application for rehearing which was heard on November 9, 1971, and denied. On January 4, 1972, plaintiff moved for a devolutive appeal [73] which was granted conditioned upon his furnishing surety in the amount of $300.00. Defendants filed the instant motion and attached thereto a certificate from the Clerk of Court showing that appellant had failed to furnish bond in the amount of $300.00 as prescribed by the trial judge. C.C.P. Article 2087(2) provides that the delay for perfecting a devolutive appeal expires after ninety days from the refusal of the trial court to grant a rehearing. C.C.P. Article 2088 additionally requires that the bond must be filed within the same period of delay. Inasmuch as the order denying the application for a new trial in the instant matter was denied on November 9, 1971, plaintiff had ninety days from this date in which to perfect his appeal by furnishing the requisite bond. This plaintiff has failed to do and we are without jurisdiction to entertain the appeal. Accordingly, for the above and foregoing reasons, the motion to dismiss the appeal in this cause is granted and the said appeal is hereby dismissed. Appeal dismissed.