Zeno v. J. A. West Co.

LOTTINGER, Judge. MOTION TO DISMISS APPEAL From an examination of this record it appeared that the appeal bond had not been filed timely by the appellant. Consequently, this Court, on its own motion, issued a rule ordering the parties to show cause why the appeal should not be dismissed. The record reflects that judgment was read, rendered and signed by the Lower Court on February 20, 1974, dismissing the plaintiffs’ suit. The matter had previously been taken under advisement so notice of the signing of the judgment was required. According to the Clerk’s certificate, notice of the judgment was mailed on Febru [857] ary 21, 1974. No new trial was applied for. Under Article 2087 of the Code of Civil Procedure, the time for perfecting a devol-utive appeal expired ninety days after the delay for an application for a new trial. Plaintiffs filed a petition and obtained an order of appeal on May 9, 1974, within the aforementioned time limitation. However, the record reveals that the bond for the appeal was not filed until June 17, 1974. At the time the bond was filed, the codal time had expired by approximately three weeks. The jurisprudence of this State was clearly set forth by this Court in the case of Jones v. Galloway, 259 So.2d 623 as follows : “For an appellant to perfect a devolutive appeal, he must first timely obtain an order therefore from the Court which rendered the judgment, C.C.P. Arts. 1974, 2087, 2121, and second, he must furnish the security therefore within 90 days as provided by C.C.P. Art. 2087. If the appeal bond has not been timely filed the Appellate Court has not obtained appellate jurisdiction over the case, see C.C. P. Art. 2088.” See also Moon v. Moon, 244 So.2d 301 (La.App.1970); McKay v. J. H. Jenkins Contractors, 250 So.2d 570 (La.App.1971); Jones v. Galloway, 259 So.2d 623 (La.App. 1972); Lawless v. Employers Mut. Fire Ins. Co., 263 So.2d 79 (La.App.1972), and Krebs v. Town of Patterson, 267 So.2d 269 (La.App.1973). For the above and foregoing reasons, the rule is made absolute and plaintiffs’ appeal is dismissed at their costs. Appeal dismissed.