STATE v. LUMPKIN

No. 46562.

153 So.2d 374 (1963)

244 La. 510

STATE of Louisiana, through the DEPARTMENT OF HIGHWAYS v. Eugene H. LUMPKIN, Jr.

Supreme Court of Louisiana.

Rehearing Denied June 4, 1963.


Attorney(s) appearing for the Case

Graydon K. Kitchens, Minden, for relator.

Alvin R. Christovich, Sr., New Orleans, D. Ross Banister, Glenn S. Darsey, Braxton B. Croom, Ben C. Norgress, Robert J. Jones, Baton Rouge, for respondent.


McCALEB, Justice.

Relator applied for an alternative writ of mandamus to compel the Court of Appeal, Second Circuit, to consider his application for rehearing. The adverse judgment was rendered by the Court of Appeal on October 26, 1962 and notice thereof was deposited in the U.S. mail on the same day. The notice was delivered to counsel for relator on the following day, October 27, 1962, and an application for a rehearing was filed on November 10, 1962, which was within 14 days after notice of the judgment was received by counsel. The court refused to consider the application for the reason that the uniform rules of the courts of appeal require that an application for rehearing be filed on or before the 14th calendar day after delivery of notice of judgment "* * * by deposit in the U.S. mail * * *" which, in this case, was October 26, 1962, whereas the application was not filed until November 10, 1962. See La.App., 147 So.2d 80, 85.

Thus, this case involves the identical question presented in Jefferson v. Jefferson et al., 153 So.2d 368 of the docket, this day decided and, for that reason, the case consolidated with that matter for argument and decision.

Accordingly, for the reasons given in the Jefferson case, the alternative writ of mandamus heretofore issued is made peremptory and the Honorable Judges of the Court of Appeal, Second Circuit, are ordered and directed to consider and determine relator's application for a rehearing in this case.

HAMITER, Justice (dissenting)

For the written reasons which I assigned in Number 46,515 of the docket of this court, entitled Jefferson v. Jefferson et al., 153 So.2d 368, I respectfully dissent.


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