Benjamin v. National Super Markets

Full title: CATHERINE BENJAMIN AND FRED BENJAMIN v. NATIONAL SUPER MARKETS, INC

Court: Court of Appeal of Louisiana, Fourth Circuit

Date published: Apr 20, 1977

346 So. 2d 1110 (La. Ct. App. 1977)

Opinion

No. 8703.

April 20, 1977.

APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, STATE OF LOUISIANA, HONORABLE OLIVER P. CARRIERE, J.

Gerald p. Aurillo, Metaire, for plaintiffs-appellants.

Guste, Barnett Shushan, William M. Barnett, New Orleans, for defendant-appellee.

Before LEMMON, BOUTALL and SCHOTT, JJ.

LEMMON, Judge.

This matter is before us on an application for supervisory writs filed by National Super Markets, Inc., complaining of the trial court's ruling that plaintiffs may appeal under C.C.P. art. 5181 et seq. without paying the costs in advance or as they accrue or furnishing security therefor.

The appealed judgment awarded plaintiffs $7,692.81, plus expert fees, court costs and interest. National has paid this judgment in full, and plaintiffs' appeal seeks an increase in the award.

Plaintiff's husband's 1976 gross income as a longshoreman was $20,898.23, approximately the same as the two previous years, and at the time of the rule to traverse he was working at the same employment and earning the same rate of pay. Additionally, plaintiffs own their own home and furnishings and an automobile. Their five children attend public schools.

The estimated costs of the appeal are $1,200.00.

The trial court has discretion in determining whether a person is unable to pay court costs "because of his poverty and lack of means". We believe, however, that the trial court abused its discretion in this case in determining that plaintiffs are unable to pay court costs because of their poverty and lack of means, when their earnings are almost $21,000.00, although the wife is unable to work and the family has substantial monthly debts.

Accordingly, the application for supervisory writs is granted; the judgment on rule permitting the appeal without payment of costs in advance or as they accrue and without furnishing security therefor is reversed; and it is now ordered that appellants furnish security for the appeal within sixty days of this order and pay the costs of appeal as they come due.

SUPERVISORY WRITS GRANTED, JUDGMENT ON RULE REVERSED, ORDER RENDERED.