Irvin v. Grower

SHORTESS, Judge. Melvin Irvin, Jr. (plaintiff) filed suit for damages against John Marshall Grower, doing business as Colony House Apartments (defendant). Judgment was rendered in favor of defendant, and plaintiff appealed. Plaintiff failed to pay estimated costs of appeal, and the Clerk of City Court filed a motion for counsel to show cause why the appeal should not be dismissed. C.C.P. Arts. 5004 and 2126. After a hearing, the City Court dismissed the appeal by judgment signed February 26, 1982. On that same date, notice of judgment was mailed to plaintiff’s counsel. Plaintiff did not apply for a “new trial.” On April 2, 1982, plaintiff applied for writs to this court, complaining of the judgment of dismissal. On April 6, this court denied the writ application, stating, “Proper remedy is by appeal.” No determination was made at that time as to whether or not the appeal delays had lapsed. On April 8, 1982, plaintiff filed a motion for devolutive appeal which was signed on April 20, and made returnable on June 18. The appeal was lodged on May 19. This court issued a rule ex proprio motu to the parties, on May 20, to show cause why this appeal should not be dismissed, as not timely filed. [508] The applicable appeal delay is ten days from judgment, or notice, when necessary. C.C.P. Art. 5003. On April 2, the date plaintiff applied for writs, the appeal delays had lapsed. Also, it is well settled that an application for supervisory writs does not extend appeal delays. Guillory v. Hartford Insurance Company, 383 So.2d 144 (La.App. 3d Cir. 1980); Carmadelle v. Urrate, 359 So.2d 708 (La.App. 4th Cir. 1978). For these reasons, we dismiss this appeal at appellant’s costs. APPEAL DISMISSED.