Brown on Behalf of State v. Bernard
| Decision Date | 16 July 1979 |
| Docket Number | No. 12829,12829 |
| Citation | 374 So.2d 127 |
| Parties | Ossie BROWN, District Attorney on Behalf of the STATE of Louisiana v. Sherman A. BERNARD, Commissioner of Insurance. |
| Court | Court of Appeal of Louisiana — District of US |
Gibson Tucker, Jr., New Orleans, for intervenor-appellant.
Marilyn C. Castle and Warren J. Hebert, Baton Rouge, for plaintiff-appellee.
Charles F. Gay, Jr., New Orleans, for defendant-appellee Bernard.
Before CHIASSON, EDWARDS and COLE, JJ.
This court Ex proprio motu issued an order for the appellant, Roger Williams Insurance Company, to show cause why its appeal should not be dismissed inasmuch as it appeared from the record that: appellant's motion for a new trial was filed untimely; the trial court's judgment after the new trial would therefore be invalid; and appellant's appeal would also be untimely.
The original judgment in this case was signed on December 22, 1978, and, on the same day, a copy of the judgment was sent to all counsel of record. Appellant filed a motion for a new trial on January 8, 1978. The motion was granted, with a new trial being held on February 14, 1979. Judgment on the new trial was signed on February 20, 1979. Appellant's orders for a suspensive and/or devolutive appeal from the latter judgment were filed on March 6, 1979. A cash bond of $500 was filed on March 22, 1979.
Appellant contends that its motion for a new trial was timely. It argues that the applicable delay of LSA-C.C.P. art. 1974 began on December 27, 1978 (Wednesday) and expired on January 8, 1979 (Monday) since the judgment was signed on December 22, 1978, a Friday, and December 25, 1978 (Monday), December 26, 1978 (Tuesday), January 1, 1979 (Monday) and January 2, 1979 (Tuesday) were holidays. Appellant states that December 25 and January 1 are holidays enumerated in LSA-R.S. 1:55, and that December 26, 1978, and January 2, 1979, were proclaimed holidays by the governor.
The record before us does not contain the copy of the governor's proclamation which appellant contends was introduced as evidence. In fact, the record contains an affidavit of the Clerk of Court of East Baton Rouge Parish stating that his office was, in fact, open on both December 26, 1978, and January 2, 1979. Nonetheless, we note that General Circular No. 445 contains the governor's proclamation of December 26, 1978, and January 2, 1979, as legal holidays.
LSA-C.C.P. art. 1974 provides:
The Second Circuit stated in Consolidated Marketing, Inc. v. Busi, 256 So.2d 695, 697 (La.App....
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...596, 127 Cal.Rptr. 244, 90 A.L.R.3d 728 (1976); Farrell v. Bendix Corp., 232 So.2d 419 (Fla.Dist.Ct.App.1970); Brown v. Bernard, 374 So.2d 127 (La.Ct.App.1979). In City of El Monte, the governor of California in an executive order had declared the third Monday in January as a day in honor o......
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Magee v. Jefferson Rental
...that subsection (B) holidays are to be considered in computation of time under C.C.P. Art. 1974, relying on Brown on Behalf of State v. Bernard, 374 So.2d 127 (La.App. 1st Cir.1979). Primarily we do not consider Brown controlling because that case does not consider subsection (E). The Brown......
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...R.S. 1:55 or by other appropriate state law." Further, the First Circuit adopted the view as their own in Brown on Behalf of State v. Bernard, 374 So.2d 127 (La.App. 1st Cir.1979). Included among the provisions of LSA R.S. 1:55 "(A) The following shall be days of public rest and legal holid......