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405 So. 2d 1376

Penalber v. Blount

Louisiana Court of Appeal

Decided March 16, 1981

Louisiana Court of Appeal · decided 1981-03-16

Key passage — most relied on by later courts

“[a] diligent search of the record does not indicate that [the article 1913] mandatory duties were executed. The only copy of a notice of judgment was one served by the Deputy Clerk of Court on October 31, 1980. It does not indicate on what date it was mailed, if in fact it was mailed. . . . . . There is nothing in the record to indicate the critical date from which the delays for applying for a new trial, or the delays of appealing, could be tolling. Appeals are favored under our law and jurisprudence. In the absence of a proper [dated] notification to counsel of the judgment having been signed, there is uncertainty as to date, and that doubt must be resolved in favor of the right to appeal.”

quoted by 2 later decisions, including 980 So. 2d 786 - ARGENCE LLC v. Box Opportunities, Inc., 464 So. 2d 1064 - Roy Fink, Inc. v. STATE, DOTD

“By LSA-CCP Art. 1913, as amended in 1961 . . ., the district clerk is under a mandatory duty to file a certificate showing the date of mailing of the judgment and to whom. The evident purpose of this provision is to avoid uncertainty as to the extinction of favored rights of appeal and to prevent disputes such as the present. In the absence of such a certificate, doubts should be resolved in favor of the right to appeal. [Citations omitted].”

quoted by 2 later decisions, including 980 So. 2d 786 - ARGENCE LLC v. Box Opportunities, Inc., 259 So. 3d 1235 - Mercato Elisio, L.L.C. v. City of New Orleans

Relies on 386 So. 2d 193 - Ouachita Equipment Rental, Inc. v. Dyer · Wilson v. McNabb · 244 So. 2d 301 - Moon v. Moon

Good law ✅— No negative treatment on recordhow we know

Decided 1981-03-16

How this case has been cited

Cited by 10 later decisions — most recently April 2019

10 state decisions

601981199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

COVINGTON, Judge.

¶1ON SHOW CAUSE ORDER TO DISMISS APPEAL

¶2In this tort suit, plaintiff was awarded the principal sum of $14,500. The Livingston Parish Police Jury was the party cast in judgment. Because of the apparent, unusual time lapse between the date of judgment, January 29, 1980, and the filing of the Police Jury’s petition for a suspensive appeal, November 4, 1980, (the order was signed November 24, 1980), we issued an order for the appellant to show cause why the appeal should not be dismissed as untimely. Appellant and appellee have filed briefs on this issue.

¶3The key issue is whether the requisite notice of judgment was mailed to the appellant. Trial was had on November 27, 1979, taken under advisement, and written Findings of the Court (Reasons for Judgment) were handed down on January 22, 1980. A week later, judgment was signed.

¶4Under the provisions of the second paragraph of LSA-C.C.P. art. 1913, the parties were entitled to written notice of judgment from the office of the Clerk of Court: “Except as otherwise provided by Article 3307 [irrelevant here], when a case has been taken under advisement by the court notice of a final judgment therein shall be mailed by the clerk of court of the parish where the case was tried to the counsel of record for each party, and to each party not represented by counsel.”

¶5The record must reflect that this has been done; LSA-C.C.P. art. 1913, fourth paragraph:

“The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.”

¶6A diligent search of the record does not indicate that these mandatory duties were executed. The only copy of a notice of judgment is one certified by the Deputy Clerk of Court on October 31,1980. It does not indicate on what date it was mailed, if in fact it was mailed.

¶7LSA-C.C.P. art. 1974 provides that the seven days delay for applying for a new trial does not commence until the day after the Clerk has mailed the notice required by Article 1913.

¶8Under LSA-C.C.P. art. 2123, a suspensive appeal may be taken within thirty days of the expiration of the delay for applying for a new trial, as provided by article 1974, if no application is filed timely.

¶9There is nothing in the record to indicate the critical date from which the delays for applying for a new trial, or the delays for appealing, could be tolling. Appeals are favored under our law and jurisprudence. In the absence of a proper [dated] notification to counsel of the judgment having been signed, there is uncertainty as to date, and that doubt must be resolved in favor of the right to appeal. Ouachita Equipment Rental, Inc. v. Dyer, 386 So.2d 193 (La.App. 3 Cir. 1980); Moon v. Moon, 244 So.2d 301 (La.App. 1 Cir. 1970); Wilson v. McNabb, 152 So.2d 352 (La.App. 1 Cir. 1963).

¶10*1378For the reasons assigned, we find that the appeal is timely. Therefore, we recall and vacate our Rule to Show Cause why the appeal should not be dismissed.

¶11RULE TO SHOW CAUSE RECALLED AND VACATED.

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