DeKay v. Koch - Case Law

ON MOTION TO DISMISS

BOUTALL, Judge.

In this case plaintiff has filed a motion to dismiss defendant’s appeal on the ground that the defendant-appellant did not pay to the clerk of the trial court, at least three days prior to the return date, all costs of preparing the record on appeal, and the filing fee required by the appellate court, in compliance with LSA-C.C.P. art. 2126.

The record shows that the judgment in plaintiff’s favor was read, rendered and signed on the first day of March 1971 and judgment on application for new trial was read, rendered and signed on March IS, 1971. On April 16, 1971, plaintiff moved for and was granted a devolutive appeal, returnable to the Court of Appeal, Fourth Circuit, on May 27, 1971. Several extensions of this return date were granted by the trial court, the pertinent one for the purposes of this motion is the return date of December 7, 1971.

The record shows that despite a request by the clerk of the trial court to be paid the costs on or before December 3, 1971, the costs were not actually paid until December 7, 1971, and on that day, the record was delivered and filed in the appellate court.

We are of the opinion that the motion to dismiss is without merit. It is well settled in our law that when the trial

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clerk does timely file the record in the appellate court, together with the payment of the appellate court’s filing fee, then the question of the appellant’s failure to comply with LSA-C.C.P. art. 2126 becomes moot, since the purpose of the article is simply to assist the trial clerk to receive such fees and costs in time to file the record in the appellate court by the return date. Downey v. Bellue, 178 So.2d 778 (La.App. 1st Cir., 1965); American Steel Building Company v. Brezner, 155 So.2d 83 (La.App. 3rd Cir., 1963); Matlock v. Allstate Insurance Company, 153 So.2d 776 (La.App. 3rd Cir., 1963).

Plaintiff also complains that the trial judge had no authority to extend the return date from December 7, 1971 to January 7, 1972. Inasmuch as the record was actually filed on December 7, 1971 and the costs were paid, the extension of the return date thereafter is immaterial for the purposes of this motion.

For the reasons assigned, the motion to dismiss defendant’s appeal is denied.

Motion to dismiss appeal denied.