Opinion
February 1, 1965.
APPEAL FROM TWENTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY, JIM W. RICHARDSON, J.
Frank S. Bruno, New Orleans, for appellant.
Walton J. Barnes, Baton Rouge, for appellees.
Before ELLIS, LOTTINGER, LANDRY and REID, JJ.
Jim Walter Corporation, plaintiff-appellee, has filed in this court a motion to dismiss the appeal of the defendants-appellants on the ground that the return date was set for May 15, 1964, and extended to subsequent dates and lastly to December 8, 1964, and that the appellants failed to deposit the costs "as required and requested by the Clerk of Court and as a result, the appeal was not lodged as of December 8, 1964, and that, therefore, this appeal was not properly filed as contemplated by law; as a resulted, the appeal should be dismissed."
In response to the motion to dismiss, this court issued a rule nisi to the parties ordering them to show cause on or before the 5th day of January, 1965, why the appeal filed herein should or should not be dismissed.
In opposition and answer to the motion to dismiss the appeal, counsel for defendants-appellants set forth that the allegations made by plaintiffs and defendant in reconvention were a complete surprise to respondents, as the latter had paid all costs, including cost for the preparation of the record on appeal, and, further, were of the opinion that the return date had again been extended beyond December 8, 1964, by the Clerk of the Twenty-second Judicial District Court for the Parish of St. Tammany and respectfully requested this court to take no action in regard to the motion to dismiss the appeal until respondents had an opportunity to investigate the cause, or until the 1st day of January, 1965. In accordance with this answer and opposition, this court issued the rule nisi returnable on the 5th day of January, 1965. In response to the rule there has been filed in the record the following document signed by Lucy R. Rausch, Deputy Clerk of Court, in and for the Twenty-second Judicial District Court, Parish of St. Tammany, State of Louisiana:
"This office has been requested by Frank S. Bruno, Attorney for the defendants in the captioned matters, to advise the First Circuit, Court of Appeal, that the delays for the lodging of the appeal in the above captioned cases, have not as yet expired. The record is presently being prepared by this office and upon completion it will be lodged by this office with the Court of Appeal, First Circuit.
"At present the last extension which has been obtained by this office was on December 30th, 1964 to February 26, 1965."
Based upon the above-quoted statement from the Deputy Clerk of Court of the Twenty-second Judicial District Court in and for the Parish of St. Tammany, State of Louisiana, the motion to dismiss is hereby denied.
Motion denied.