Ainsworth v. State Farm Mutual Automobile Insurance

CUTRER, Judge. MOTION TO REMAND The defendant-appellee, State Farm Mutual Automobile Insurance Company, moves to remand this suit to the trial court to enable it to traverse the right of the plaintiffs-appellants, Anita Ainsworth and Travis L. Ainsworth, to proceed with their appeal in forma pauperis. The motion is unopposed. Judgment was rendered in this case on July 17, 1980. By motion filed September 15, 1980, and order signed that date, both plaintiffs, Anita Ainsworth and Travis L. Ainsworth, were granted a devolutive appeal to this court. The appeal order further granted the plaintiffs-appellants the right to prosecute the appeal in forma pauperis. The defendant-appellee, State Farm Mutual Automobile Insurance Company, alleges that the motion for appeal filed by the plaintiffs-appellants on September 15th was the first effort by the plaintiffs to proceed in forma pauperis and, therefore, the defendant-appellee has not had an opportunity to traverse the plaintiffs’ right to proceed in forma pauperis. The jurisprudence is well settled that where a devolutive appeal had been taken in forma pauperis without allowing the appellee sufficient time in which to traverse the affidavits of poverty, the appellate court may, upon timely application therefor, remand the cause to give the ap-pellee the opportunity to do so. Oldham v. Hoover, 140 So.2d 417 (La.App. 1st Cir. 1962). Under the facts of this case, the mover has had insufficient opportunity to traverse in the district court, and thus is clearly entitled to an opportunity to do so. Shepard v. Shepard, 349 So.2d 1026 (La. App. 3rd Cir. 1977); Darby v. Travelers Insurance Company, 272 So.2d 798 (La.App. 3rd Cir. 1973); Ross v. Hatchette, 247 So.2d 399 (La.App. 3rd Cir. 1971). The matter is hereby remanded to the trial court for the purpose of allowing the defendant-appellee, State Farm Mutual Automobile Insurance Company, to traverse the appellants’ right to proceed with their appeal in forma pauperis. APPEAL REMANDED.