Agricultural Equipment Co. v. Meloncon

453 So. 2d 671, 1984 La. App. LEXIS 9268

Opinion

YELVERTON, Judge.

MOTION TO DISMISS

Plaintiff-appellee, Agricultural Equipment Co., Inc., moves to dismiss the appeal of defendant-appellant, Frank Meloncon, on the ground that the appellant failed to timely pay the estimated costs of the appeal as required by LSA-C.C.P. Art. 2126, resulting in the record being lodged in this court beyond the original return date.

The order of appeal was filed by the trial judge on February 22, 1984, returnable to the Court of Appeal on April 22, 1984. The record was not lodged with this court until June 15, 1984.

The plaintiff-appellee filed in the trial court a Motion to Dismiss the appellant’s appeal, claiming that the defendant had not paid the costs of the appeal. On June 1, 1984, at the hearing on the rule to show cause why the appeal should not be dismissed, counsel for the defendant-appellant paid the estimated costs of the appeal in open court. The trial court extended the time for payment of costs to June 1, 1984, in a minute entry dated June 13, 1984, and denied the plaintiff's motion to dismiss the appeal.

When the record of appeal has been lodged with the appellant court by the return date or extended return date, together with filing fees, the question of appellant’s failure to pay timely the cost and fees required is moot. City of Natchitoches v. The Keg of Northwestern, 349 So.2d 466, 467 writ denied, 351 So.2d 176 (La.1977). Appeals are favored and will be maintained absent a clear showing of a legal ground for dismissal. Davidge v. Magliola, 346 So.2d 177 (La.1977).

We also note that an appellee may not bring into question the abuse of discretion of the trial court in granting an extension of the return date under the provision of LSA-C.C.P. Art. 2126 by means of a Motion to Dismiss. It was incumbent upon the appellee if he disputed this decision to have filed writs with this court.

MOTION DENIED.