Needham v. Demette

397 So. 2d 1369

• Court: Louisiana Court of Appeal
• Decided: February 13, 1981
• Docket: No. 8271
• Status: Published

Opinion

STOKER, Judge.

MOTION TO REMAND

The plaintiff-appellee, J. H. Needham, moves to remand this suit to the trial court to enable him to traverse the right of the defendant-appellant, Mark Demette, to proceed with his appeal in forma pauperis. The motion is unopposed. We remand.

On October 29,1980, the appellant moved for and was granted an appeal in forma pauperis. The appellee believes the appellant is able to pay the costs incurred in the suit and seeks to traverse the appellant’s right to proceed in forma pauperis. The appellee filed a motion to remand on January 14, 1981.

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 therefore, remand the cause to give the appellee 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 an 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 mover to traverse the appellant’s right to proceed with his appeal in forma pauperis.

APPEAL REMANDED.