Ballard v. Continental Insurance Company

Full title: Mrs. Collean BALLARD, for the Use and Benefit of her two minor children…

Court: Court of Appeal of Louisiana, Fourth Circuit

Date published: Jan 10, 1972

256 So. 2d 472 (La. Ct. App. 1972)

Opinion

No. 4913.

January 10, 1972.

APPEAL FROM 29TH JUDICIAL DISTRICT COURT, PARISH OF ST. CHARLES, NO. 10,278, DIVISION B, MORRIS G. BECNEL, J.

W. K. Christovich, Christovich Kearney, New Orleans, for Metal Decks, Inc. and Continental Ins. Co.

J. Lynn Ponder, Amite, for Mrs. Collean Ballard, and others.

Before CHASEZ, REDMANN and STOULIG, JJ.

ON MOTION TO DISMISS

CHASEZ, Judge.

Judgment on Motion to Dismiss Appeal under LSA-C.C.P. Article 2161 and Rule 7 of the Uniform Rules of the Courts of Appeal of the State of Louisiana, filed by Defendants-Appellees, Continental Insurance Company and its assured, Metal Decks, Inc.

Plaintiff, Mrs. Collean Ballard in the above entitled matter filed suit for the wrongful death of her husband against the defendants, Continental Insurance Company and its assured, Metal Decks, Inc. After trial on the merits judgment in favor of defendant was rendered dismissing plaintiff's suit in the 29th Judicial District Court, Parish of St. Charles, State of Louisiana.

Subsequently, plaintiff was granted a devolutive appeal on April 12, 1971, with a return date of June 4, 1971. On May 3, 1971 plaintiff timely filed her appeal bond but has done nothing further to prosecute her appeal. Costs for preparation of the record of appeal in this matter, its transmission and filing in this Court have not been paid, nor has the record been lodged in this Court.

Appellees averment that no extension of the return date was granted is undisputed.

Defendant has filed a motion to dismiss due to the non-payment of filing fees and non-compliance with LSA-R.S. 13:4445.

Under LSA-C.C.P. Art. 2161 a motion to dismiss an appeal shall be granted only if the irregularity, error, or defect is imputable to the appellant. Appeals are favored and are to be dismissed only when the law clearly requires it. However, the Supreme Court of Louisiana has held in Louisiana Power and Light Company v. Lasseigne, 255 La. 579, 232 So.2d 278 (1970) that failure of an appellant to pay fees and costs to the clerk of the trial court within three days before the return day is a fault imputable to the appellant and ground for dismissal. See also: LSA-R.S. 13:4445.

For the above and foregoing reasons the motion to dismiss is granted and the appeal is hereby dismissed.

Appeal dismissed.