Netterville v. T. L. James & Co.

280 So. 2d 662 | La. Ct. App. | 1973

MOTION TO DISMISS APPEAL

CULPEPPER, Judge.

This is a motion to dismiss an unlodged appeal predicated on the plaintiff-appellant’s failure to pay the clerk of the trial court the cost of preparing the record of appeal and the filing fee required by the clerk of the appellate court to lodge the appeal not later than three days prior to the return date or the extended return date. The return date in this case was April 10, 1973.

The movers-appellants have attached to their motion the sworn affidavit of the clerk of the trial court, dated July 6, 1973, that no extension of the return date of April 10, 1973 was made by the trial court, and that no payment of the court cost or filing fee have been made.

Article 2126 LSA-C.C.P. and LSA-R.S. 13:4445 require that the appellant pay the court costs and filing fee to the clerk of the trial court not later than three days prior to the return day, or extended return day. Since the plaintiff-appellant has not done this, the failure to lodge the record timely is attributable to him, and is a basis for dismissal of the appeal. Louisiana Power & Light Co. v. Lasseigne, 255 La. 579, 231 So.2d 278 (1970); Discount Tire Center, Inc. v. Doomes, 269 So.2d 498 (La.App.3rd Cir., 1972); Washburn v. Washburn, 227 So.2d 271 (La.App.2nd Cir., 1969).

Appeal dismissed.