Babineaux v. LeBlanc

DOMENGEAUX, Judge. MOTION TO REMAND The defendants-appellees, Michael J. Le-Blane and Commercial Union Insurance Company, move to remand this suit to the district court to enable it to traverse the right of the plaintiff-appellant, Louis Babi-neaux, to continue to pursue this appeal in forma pauperis. The motion is unopposed. We remand. The record of this appeal has not as yet been lodged with this court. The pertinent facts are as follows: The plaintiff originally filed his suit in forma pauperis. The defendants filed a rule to traverse the plaintiff’s right to proceed in forma pauperis, and the rule was set for hearing on April 19, 1976. At the time of [691] the hearing on the rule to traverse, the plaintiff’s attorney stipulated that his client was not a pauper and could post a bond for costs and did so. The case was subsequently tried before a jury and judgment was entered in favor of the defendants and against the plaintiff condemning the plaintiff to the payment of costs of court. After judgment, the plaintiff filed a petition for an appeal, and a motion and order to be allowed to proceed in forma pauperis on appeal simultaneously. In their motion to remand the defendants allege that they had no knowledge of the plaintiff’s motion and order to proceed as a pauper on appeal until they were served with the notice of the plaintiff’s appeal, and therefore, they never had an opportunity to traverse the plaintiff’s right to appeal in forma pauperis in the trial court, and request that the case be remanded so that the defendants might be given an opportunity to traverse the plaintiff’s right to proceed in forma pauperis. Once an appeal is granted in forma pauperis, the proper remedy to traverse the affidavits of poverty or the applicant’s right to exercise the privilege is to timely apply to the appellate court to remand the case for that purpose. Affiliated Foods, Inc. v. Blanchard, 256 So.2d 363 (La.App. 3rd Cir., 1971); Lake Charles Tile & Carpet Company v. Foster, 251 So.2d 196 (La.App. 3rd Cir., 1971). This application was timely made. The case is remanded to the trial court to allow the defendants-appellees to traverse the right of the plaintiff-appellant to proceed in forma pauperis, and for the trial court to rule on that issue. REMANDED.