Box v. Athena, Inc.

• Decision Date: 10 March 1975
• Docket Number: No. 10244,10244
• Parties: Robert S. BOX v. ATHENA, INC.
• Court: Court of Appeal of Louisiana — District of US

Page 176

312 So.2d 176

Robert S. BOX v. ATHENA, INC.

No. 10244.

Court of Appeal of Louisiana, First Circuit.

March 10, 1975.

Rehearing Denied May 20, 1975.

John E. Coleman, Jr., Franklin, for defendant-relator Athena, Inc.

Wm. D. Hunter, Morgan City, for plaintiff-respondent.

James A. George, Baton Rouge, for defendant-respondent Hartford.

Robert A. Vosbein, New Orleans, for defendant-respondent Cali Union.

John Allen Bernard, Lafayette, for defendant-respondent.

Before LANDRY, BLANCHE and YELVERTON, JJ.

BLANCHE, Judge.

Defendant, Athena, Inc. (Relator) has applied for supervisory writs to review the judgment of the trial court overruling Relator's peremptory exception of one year liberative prescription in defense of the in personam maritime tort action brought against Relator by Plaintiff, Robert S. Box (Respondent). Respondent has moved to dismiss Relator's application for failure to file same in this court by December 17, 1974, as ordered by the court below. We grant Respondent's motion to dismiss, and consequently Relator's application will not be considered.

The procedure governing applications for supervisory writs and the filing of such applications in the courts of appeal, is governed by Rule XII, Section 2, Uniform Rules of the Courts of Appeal, which pertinently states:

'The party or attorney intending to apply to the court for a writ of certiorari * * * shall give to the judge or judges whose ruling is complained of, and to the party made respondent * * * notice of such intention Upon such notice being given to the judge, he shall fix a reasonable time within which the application shall be filed in this court, * * * Any application not filed in this court within the time so sixed or extended will not be considered unless the applicant establishes to the court's satisfaction that the delay in filing was not due to his fault.'

It appears from the record that Relator's application was filed with the Clerk of this court on December 26, 1974, and according to the requirements of the above rule, was not timely filed.

In defense of this apparent tardiness, Relator argues that he filed his application timely by depositing the same in the United States mail on December 17, 1974, the last date fixed by the trial judge on which the application could be filed. He next argues that our Rule XII above does not provide for the filing of a writ application by mail, though Rule X, Section 5(b) of the Rules of the Supreme Court of Louisiana does provide for failing of such writs by providing that applications sent through the mail for filing shall be timely filed when the official United States postmark upon the envelope transmitting it shows that it was mailed on or before the last day of the delay for filing. He further argues that the Louisiana Constitutional of 1921, Article 7, Section 27, states that until otherwise provided, the rules regulating proceedings in the Supreme Court shall also apply to the Courts of Appeal. This constitutional mandate was in effect when the present application was mailed.

We are unable to accept Relator's argument. The depositing of an application for a writ in the mail does not constitute a filing 'in this court' as provided for by our Rule XII, Section 2, supra. The words 'filed in this court' are easily understood words and it would be a strange construction of those simple words to suppose that a filing in this court is constituted when the instrument is deposited in the United States mail. Elsewhere our rules do provide that in the case when briefs (Rule IX, Section 9) or applications for rehearing (Rule XI, Section 2) are sent through the mail, the filing shall be timely when the postmark shows that the document was marked on or before the due date. We see no reason why a different rule should obtain for the filing of writs, but the simple fact remains that the rule does not so provide. Thus, if Relator chooses the mail as a means of transmitting its application for writs to this court, the duty was on Relator to insurer that the same was deposited in the mail in order that it would reach the court for filing on or before the due date.

Relator has submitted to this court the affidavit of Julie A. Zimmerman, secretary to counsel for Relator. Said affiant deposes that...