Deville v. LaGrange

381 So. 2d 838, 1979 La. App. LEXIS 4104

• Court: Louisiana Court of Appeal
• Decided: May 23, 1979
• Docket: No. 7120
• Status: Published

Opinions

MOTION TO REMAND

DOMENGEAUX, Judge.

The court reporters of the Sixteenth Judicial District Court, Parish of St. Martin, Vivian A. Aycock, Vivian B. Aycock, and Kathleen 0. Willis, move to remand this suit to the trial court to enable them to traverse the right of the defendants-appellants, Mr. and Mrs. Lloyd LaGrange, Sr., to proceed with their appeal in forma pauper-is. The motion is unopposed. We remand.

Judgment was rendered in this case on October 30, 1978. A timely application for new trial was made and denied on September 25, 1978.

On October 16, 1978, the appellants moved to proceed in this matter in forma pauperis, which motion was granted by the trial court that date, and on October 19, 1978, the appellants moved for and were granted an appeal in forma pauperis.

We particularly note that LSA-R.S. 13:971 provides special provisions for the court reporters of the Sixteenth Judicial District to traverse by rule a party’s rights to the benefits of our pauper statutes, and, therefore, we need not decide at this time whether a court reporter is an “adverse party” given the right to traverse under LSA-C.C.P., Article 5184.

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 movers have had insufficient opportunity to traverse in the district court, and thus are clearly entitled to an opportunity to do so. Ross v. Hatchette, 247 So.2d 399 (La.App.3rd Cir. 1971); Darby v. Travelers Ins. Company, 272 So.2d 798 (La.App.3rd Cir. 1973); Shepard v. Shepard, 349 So.2d 1026 (La.App.3rd Cir.1977).

The appeal is hereby remanded to the trial court for the purpose of allowing the movers to traverse the appellants’ right to proceed with their appeal in forma pauper-is.

APPEAL REMANDED.