Rollins v. Ford Motor Co.

406 So. 2d 328

Opinion

ON THE MOTION TO DISMISS

KLIEBERT, Judge.

This matter came up on a motion to dismiss the appeal on the grounds the record was not timely lodged in this Court. The return date was originally set as November 1, 1981. No extension of the date was sought or granted. Mover cites Hingle v. The Aetna Casualty and Surety Company, 306 So.2d 477 (La.App.1975) and LSA-C. C.P. Article 2161 as authority for the dismissal.

Code of Civil Procedure Articles 2125.1 and 2161 specifically provide that an appeal cannot be dismissed for any error or defect not imputable to the appellant. Here, mover does not allege or show the matter complained of, failure to lodge the record on or before the last return date, is imputable to the appellant. Further, the case mover relies on, Hingle v. Aetna Casualty & Surety Company, 306 So.2d 477, is not applicable. In that case, handed down before the 1976 amendment to the pertinent codal article (C.C.P. Art. 2125.1) which gave jurisdiction to the trial court to dismiss the appeal where the costs were not paid timely, the costs were not timely paid and this was clearly imputable to the appellant. Accordingly, the motion to dismiss is denied.