Audubon Insurance Company v. Carter

Full title: AUDUBON INSURANCE COMPANY and Jessie D. Edmonston v. James CARTER and…

Court: Court of Appeal of Louisiana, First Circuit

Date published: Nov 21, 1966

192 So. 2d 201 (La. Ct. App. 1966)

Opinion

No. 6909.

November 21, 1966.

APPEAL FROM 23RD JUDICIAL DISTRICT COURT, PARISH OF ASCENSION, LEON J. LeSUEUR, J.

John Dale Powers, of Sanders, Miller, Downing, Rubin Kean, Baton Rouge, (Mover), for plaintiffs-appellees.

A. J. Kling, Jr., Gonzales, for respondents-defendants-appellants.

Before LANDRY, ELLIS, and BAILES, JJ.

ELLIS, Judge.

This is a motion to dismiss a suspensive and devolutive appeal taken by defendants herein. The basis alleged for the dismissal is their failure to pay to the Clerk of the Trial Court the costs of the appeal as provided by law.

The facts show that judgment in favor of plaintiffs and against defendants was signed on May 19, 1965. On June 2, 1965, defendants obtained an order of suspensive appeal, made returnable on July 28, 1965. According to a letter from Miss Kathryn Koche, Deputy Clerk of Court, dated June 7, 1966, no cost for preparing or lodging the appeal had been advanced as of that date. That letter also reveals that no extension of the original July 28, 1965, return date had ever been obtained.

Article 2126 of the Code of Civil Procedure provides as follows:

"The appellant shall pay to the clerk of the trial court, not later than three days prior to the return day or extended return day, all costs of preparing the record on appeal, and the filing fee required by the appellate court to lodge the appeal."

Article 2127 of the Code of Civil Procedure provides as follows:

"The clerk of the trial court shall have the duty of preparing the record on appeal. He shall cause it to be lodged with the appellate court on or before the return day or any extension thereof, upon the timely payment to him by the appellant of all fees due in connection with the appeal, including the filing fee required by the appellate court to lodge the appeal. Failure of the clerk to prepare and lodge the record on appeal either timely or correctly shall not prejudice the appeal."

No appearance, in brief or otherwise, has been filed herein by appellant.

Under the clear provisions of the above quoted sections, no costs having been advanced, and the appeal day having passed without having been extended, mover is entitled to the relief sought herein.

Appeal dismissed.