Opinion
No. CA 871387.
March 24, 1988.
APPEAL FROM EIGHTEENTH JUDICIAL DISTRICT COURT, PARISH OF WEST BATON ROUGE, STATE OF LOUISIANA, HONORABLE JACK T. MARIONNEAUX, JUDGE PRESIDING.
Johnnie A. Jones, Baton Rouge, for plaintiffs, appellants, Beatrice v. LaCour and Nathaniel B. LaCour.
William H. Cooper, Baton Rouge, for defendants, appellees, Highway Pipeline Trucking Co., and Arnold J. Aubin, Jr.
A. Clay Pierce, Jr., Baton Rouge, for Cleopatra LaCour and Loader Nat Ins. Co.
Before LOTTINGER, EDWARDS and ALFORD, JJ.
Beatrice and Nathaniel LaCour filed a petition for damages against Highway Pipeline Trucking Company, et al. After a trial on the merits, the trial court rendered judgment in favor of defendants and dismissed plaintiffs' suit at their cost. Thereafter, plaintiff, Beatrice LaCour, filed a motion to proceed in formal pauperis and a motion for a suspensive appeal, both of which the trial court granted. Defendants responded by filing, in the trial court, a motion to dismiss plaintiff's suspensive appeal.
In support of their motion to dismiss, defendants argued that although plaintiff is allowed to file a devolutive appeal as a pauper (i.e., without prepayment of court costs), she is not allowed to file a suspensive appeal as a pauper (i.e., without payment of a bond.) Plaintiff filed an opposition in which she argued that Louisiana Code of Civil Procedure article 5185 is unconstitutional because denial of a suspensive appeal violates her right to due process and equal protection. The trial court ruled in favor of defendants and dismissed plaintiff's appeal as suspensive but maintained it as devolutive.
Thereafter, defendants filed, in this court, a motion to dismiss plaintiff's suspensive appeal. Defendants argued the same thing they had argued in their earlier motion to dismiss directed to the trial court. Plaintiff filed an opposition and argued the same thing she had argued to the trial court.
The trial court has already acted on defendant's motion to dismiss by converting plaintiff's appeal from suspensive to devolutive. Therefore, the motion to dismiss which is presently before us is moot. Furthermore, defendants' motion to dismiss does not allow us to review the trial court's conversion of plaintiff's appeal from suspensive to devolutive.
Accordingly, defendants' motion to dismiss is denied at defendants' costs.
MOTION TO DISMISS DENIED.