Murry v. Southern Pulpwood Insurance

HOOD, Judge. This is a workmen’s compensation suit instituted by Clyde T. Murry against Southern Pulpwood Insurance Company. Judgment was rendered and signed by the trial court on June 16, 1961, and on that same day both parties moved for and were granted suspensive and devolutive appeals to this court, returnable on or before August 20, 1961. Plaintiff timely perfected his appeal, and the record was lodged with this court on August 17, 1961. The defendant, however, has never perfected its appeal by filing an appeal bond, and it has never paid the fees due the clerk of this court for filing the record of appeal, all as required by LSA-C.C.P. Arts. 2124, 2126 and 2127; and by LSA-R.S. 13:352 and 4445. The return date for the appeal has expired, and no extension of that return date has been granted. On August 28, 1961, counsel for plaintiff filed a formal motion to dismiss defendant’s appeal, alleging as a basis for that motion that defendant has not paid the filing fee due this court, although the return date for lodging the record with this court has passed. This motion to dismiss the appeal has been submitted in accordance with the provisions of Rule VII of the Uniform Rules, Courts of Appeal, 8 LSA-R.S., and no answer or opposition to the motion has been filed. LSA-R.S. 13:4445 provides that not later than three days before the return day of the ■ appeal,-the appellant• shall [828] pay to the clerk of the trial court the fees due the clerk of the appellate court, and that the clerk of the appellate court “shall not docket the appeal or file the record thereof until he has received the fees due him.” Since the defendant in this case failed to pay the fees due the clerk of this court for filing the record within the time allowed by LSA-R.S. 13:4445, we conclude that defendant has abandoned its appeal and that its appeal must be dismissed. Three Way Finance Company v. Callendar, La.App. 2 Cir., 84 So.2d 299; Loe v. Whitman, La.App. 2 Cir., 87 So.2d 217; Thompson v. Madden, La.App. 2 Cir., 106 So.2d 784; Cavalier v. La Salle, La. App. 1 Cir., 126 So.2d 23; Manuel v. Travelers Insurance Company, La.App. 3 Cir., 131 So.2d 223. For the reasons herein set' out, therefore, the motion to dismiss the appeal of defendant, Southern Pulpwood Insurance Company, is sustained, and accordingly judgment is hereby rendered dismissing the appeal heretofore granted to said defendant, without prejudice to the appeal taken by plaintiff. All costs incident to this motion to dismiss are. assessed to defendant.