Smith v. H. J. Landreneau Building Contractor, Inc.

419 So. 2d 53, 1982 La. App. LEXIS 7867

Opinion

MOTION TO REMAND

DOMENGEAUX, Judge.

The defendant-appellee, H. J. Landre-neau Building Contractor, Inc., moves to remand this suit to the trial court to enable it to traverse the right of the plaintiffs-appellants, Jimmy Allen Smith and Judy Ar-naud, to proceed with their appeal in forma pauperis. This motion is unopposed. We remand.

On April 15,1982 the plaintiffs-appellants moved for and were granted a devolutive appeal in forma pauperis. The defendant-appellee alleges in its motion that it believes the plaintiffs-appellants are able to pay the costs incurred in this suit and seek to traverse the plaintiffs-appellants’ right to proceed in forma pauperis. The defendant-appellee also alleges that this was the first attempt by the plaintiffs-appellants to proceed in forma pauperis and, therefore the defendant-appellee has not had an opportunity to traverse the right to proceed in forma pauperis.

In Ainsworth v. State Farm Mutual Automobile Insurance Company, 389 So.2d 1376 (La. App. 3rd Cir. 1980) this court set out the law applicable to remands in this situation as follows:

[1] 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 appellee the opportunity to do so. Oldham v. Hoover, 140 So.2d 417 (La. App. 1st Cir. 1962).

[2] Under the facts of this case, the mover has had insufficient opportunity to traverse in the district court, and thus is clearly entitled to an opportunity to do so. Shepard v. Shepard, 349 So.2d 1026 (La. App. 3rd Cir. 1977); Darby v. Travelers Insurance Company, 272 So.2d 798 (La. App. 3rd Cir. 1973); Ross v. Hatchette, 247 So.2d 399 (La. App. 3rd Cir. 1971).

It is clear from a reading of the defendant’s motion that it has not had a sufficient opportunity to traverse and is therefore entitled to have this matter remanded to the trial court for the purpose of permitting it to traverse the plaintiffs’ right to proceed in forma pauperis.

APPEAL REMANDED.