In re Adoption of McArthur

SAMUEL, Judge. This is a suspensive appeal from a judgment of adoption. The only matter before us at this time is an appellee motion to dismiss that appeal. The motion is based on the fact that the appellant failed to pay to the clerk of the trial court all costs of preparing the record on appeal on or before three days prior to the return day or extended return day as required by C.C.P. Art. 2126. The facts are not in dispute. The extended return day of the appeal was November 24, 1975. The record was lodged in this court on November 19, 1975. Payment for the transcript was not made timely, i. e., it was not made on or before the expiration of the three days prior to that extended return day, although such payment was made at a subsequent date. The motion to dismiss the appeal was filed on January 7, 1976. It would appear that we would be required to dismiss the motion for the reason stated in Desselle v. Petrossi, La.App., 203 So.2d 567, 568: “. . . while the clerk is not required to lodge the record with the appellate court unless the costs and fees are paid, nevertheless, if the clerk does timely file the record in the appellate court, together with the payment of the appellate court’s filing fee, then the question of the appellant’s failure to comply with Article 2126 of the Code of Civil Procedure becomes moot, since the purpose of the article is simply to assist the clerk of the lower court to receive such- fees and costs in time to file the record in the appellate court by the return day.” However, we do not reach that question. As provided by C.C.P. Art. 2161, a motion to dismiss an appeal because of any irregularity, error or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the day on which the record on appeal is lodged in the appellate court, whichever is later. This appeal is sought to be dismissed solely because of an alleged irregularity, error or defect imputable to the appellant. As the motion was not filed until January 7, 1976, more than a month after both the extended return day and the day on which the record was lodged in this court, the motion was untimely filed and cannot be considered.1 For the reasons assigned, the motion to dismiss is denied. Motion denied. Footnotes [1] In re Roberts, La.App., 257 So.2d 473; White v. White, La.App., 227 So.2d 760; Coastal Transmission Corporation v. Lejeune, La.App., 144 So.2d 759.