Brown v. Delta Airlines Inc.

ON MOTION TO DISMISS Before SAMUEL, BOUTALL and SCHOTT, JJ. SAMUEL, Judge. This matter is before us solely on an appellee motion to dismiss the appeal on the ground the record was lodged in this court months after the return day set in the order of appeal, which return day was not extended. While it appears the motion would have to be denied because of an absence of any showing or contention the delay was imputable to the appellant and because the failure of the clerk to timely prepare and lodge the record on appeal “shall” not prejudice the appeal,1 we find we do not reach the question of whether the motion should be denied or maintained. Mover seeks to have the appeal dismissed because of an “irregularity, error, or defect” as those words are used in LSA-C. C.P. Art. 2161. That article provides such a motion “must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later” (emphasis ours). In this case the record was lodged in this court on July 1, 1977 and the motion to dismiss was filed on July 13, 1977, more than three days, exclusive of holidays, after the date on which the record was lodged. Thus, the motion cannot be considered.2 The motion to dismiss the appeal is not considered. NOT CONSIDERED. Footnotes [1] LSA-C.C.P. Articles 2127 and 2161. [2] See Matter of Adoption of McArthur, La. App., 326 So.2d 570; Ammon v. Brown, La. App., 273 So.2d 588; Thibodeaux v. Aetna Casualty & Surety Company, La.App., 213 So.2d 189; Plauche v. Derouen, La.App., 193 So.2d 918.