Opinion
No. 2824.
June 25, 1969.
APPEAL FROM 11TH JUDICIAL DISTRICT COURT, PARISH OF SABINE, JOHN S. PICKETT, J.
James L. Davis, Many, for defendant-appellee.
Thomas A. Self, Many, for plaintiff-appellant.
En Banc.
On Motion to Dismiss the Appeal.
The plaintiff-appellant appeals from adverse judgment of December 12, 1968. The order granting the devolutive appeal made it returnable to this court on February 24, 1969.
The defendant-appellee moves to dismiss the appeal in this court, by motion filed on June 3, 1969. At this date the appeal had not been lodged here. Attached to the motion was a certificate from the clerk of court showing that no extension of time for perfecting said appeal beyond February 24 had ever been applied for or granted.
The motion to dismiss the appeal is denied. It is the duty of the clerk of the trial court to prepare the record and lodge it "upon the timely payment to him by the appellant of all fees due in connection with the appeal", and "Failure of the clerk to prepare and lodge the record on appeal either timely or correctly shall not prejudice the appeal." LSA-C.C.P. Art. 2127.
There is no showing that the appellant failed to pay the costs of the appeal or filing fee timely. See LSA-C.C.P. Art. 2126. If such failure were the reason for the tardy filing of the appeal, then upon timely motion this is a ground for dismissal of the appeal. McMillen Feeder Finance Corp. v. Thompson, La. App.3d Cir., 171 So.2d 827. Therefore, in overruling this motion, we will do so without prejudice to the right of the defendant-appellee to raise this ground, if applicable, by further timely motion to dismiss.
Motion to dismiss the appeal overruled.