Rourk v. Levy

ON MOTION TO DISMISS THE APPEAL Before FRUGÉ, SAVOY, and CUL-PEPPER, JJ. FRUGÉ, Judge. The plaintiff-appellee has moved to dismiss the appeal in this cause. This is the second motion to dismiss that has been filed in this matter. The court earlier refused to dismiss this appeal because the record had not been transmitted to this court, and the court did not have sufficient information upon which to consider the motion. 247 So.2d 406 (La.App.3rd Cir., 1971). This matter began as a suit on a promissory note. After hearing, judgment was rendered in favor of the plaintiff, W. C. Rourk. From this adverse judgment, an appeal was taken by the defendant, John B. Levy, et al. The basis for the appellee’s motion to dismiss is that the record was not timely lodged in this court, due solely to the fault of the appellant. The record reveals that the last extension of the return date made this appeal returnable on March 31, 1971. As of March 31st, the record was not lodged with this court. The appellee has attached an affidavit to his motion to dismiss executed by the Clerk of Court of Lafayette Parish. The affidavit states that the record had been prepared and would have been transmitted to this court prior to the return date, except that the fee of the Clerk of the District Court had not been paid by the appellant, and under Article 2126 of the Code of Civil Procedure, the appellant must pay these costs three days prior to the return date. The appellee has paid the cost of the Clerk of the District Court for the sole reason of having this record transmitted to the court so that the appeal might be dismissed for failure to have the record timely lodged. Several cases have held that the failure to pay the fees and costs of preparing and filing the record becomes moot if the appeal is in fact timely lodged with the appellate court. Matlock v. Allstate Insurance Company, 153 So.2d 776 (La.App.3rd Cir., 1963); Downey v. Bellue, 178 So.2d 778 (La.App.1st Cir., 1965). Since this record was not filed until June 23, 1971, and the return date, as last extended, was March 31, 1971, the record was not timely lodged. This omission was due solely to the appellant’s failure to pay the cost of preparing and transmitting the record. Thus, the appeal will be dismissed. The motion is, therefore, granted, and the appeal is dismissed. The defendants-appellants to pay all costs. Appeal dismissed.