
    Louise Suarez, wife of Earl P. DESSELLE v. Earl P. DESSELLE.
    No. 7355.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 17, 1975.
    Evangeline M. Vavrick, New Orleans, for plaintiff-appellant.
    Oliver S. Livaudais, Jr., Charles H. Li-vaudais and Robert J. Klees, Chalmette, for defendant-appellee.
    Before SAMUEL, LEMMON, and STOULIG, JJ.
   STOULIG, Judge.

On defendant’s motion we dismiss this appeal as premature because the order granting plaintiff an appeal was signed by the trial judge on the same day he signed an order setting for trial defendant’s motion for a new trial. At the time the district judge could not divest the trial court of jurisdiction without first rendering a decision on the timely filed motion for a new trial.

These dates are significant:

August 14, 1975 — Judgment rendered on rule for alimony pendente lite and increased child support that had previously been tried and taken under advisement.
August 15, 1975 — Notice of judgment mailed by Clerk of Court to both counsel.
August 22, 1975 — Plaintiff filed a motion for appeal. Defendant filed a motion for a new trial.
August 29, 1975 — Trial judge signed orders granting the appeal and fixing the motion for a new trial for hearing.
September 22, 1975 — Minute entry of court reflects the granting of a new trial to defendant on all issues and setting November 20, 1975 as the trial date.

The motion for a new trial was timely filed by the defendant within the 7-day delay (exclusive of legal holidays) allowed in C.C.P. art. 1974, which commenced to run on August 16, 1975, the day-following the mailing of the notice of judgment by the Clerk of Court (C.C.P. art. 1913). The 30-day appeal period prescribed by C.C.P. arts. 3942 and 3943 did not begin to run until the 7-day delay for applying for a new trial had expired. C.C.P. art. 2087(1).

Applying these articles of the Code, of Civil Procedure to the facts of this case (involving one defendant and one plaintiff), there is no final judgment from which an appeal will lie until the expiration of the delays for the filing of a motion for a new trial or until the merits of the motion have been adjudicated.

For the foregoing reasons the appeal is dismissed at appellant’s cost.

Appeal dismissed.

LEMMON, J., concurs with written reasons.

LEMMON, Judge

(concurring).

In my opinion the appeal by the wife was not premature, although the appeal was filed during the delay for applying for a new trial and the husband’s application for new trial had not yet been disposed of at the time the appeal was granted.

C.C.P. arts. 3942, 3943 and 2087(1) set the outer limit of the delay within which an appeal can be taken. Nothing in the Code prohibits the taking of an appeal immediately following judgment and before the expiration of the delay for applying for a new trial.

Furthermore, after the trial judge granted the appeal, he retained jurisdiction to act on the motion for new trial, since an appeal divests the trial court of jurisdiction only as to “matters in the case reviewable under the appeal”. C.C.P. art. 2088.

Nevertheless, the granting of the new trial to the husband had the effect of vacating the judgment appealed from and thus rendered the wife’s appeal moot. I therefore concur in the dismissal of the appeal as moot. 
      
      . If the husband’s application for new trial had been denied, then the wife’s appeal would have remained effective, and there would have been no necessity for her filing another appeal.
     