Thomisee v. Pearson

446 So. 2d 568, 1984 La. App. LEXIS 8224

• Court: Louisiana Court of Appeal
• Decided: March 8, 1984
• Docket: No. 84-164
• Status: Published

Opinion

GUIDRY, Judge.

MOTION TO DISMISS

The plaintiff-appellee, Ruby N. Thomi-see, moves to dismiss the appeal of Billy Joe Pearson, defendant-appellant, as being untimely filed. We deny the motion to dismiss the appeal.

Pearson appealed an unfavorable judgment awarding custody of the minor child, Gregory Doyle Pearson, to Thomisee. At the conclusion of the hearing on the rule on October 18, 1983, the trial court ruled in favor of Thomisee. In accordance therewith, judgment was signed on October 31, 1983. On November 2, 1983, Pearson moved for and obtained a devolutive appeal. Costs of the appeal were not paid until January 9, 1984.

No security is required for a devolutive appeal. LSA-C.C.P. Art. 2124. Therefore, Pearson’s appeal was perfected on November 2, 1983. Under the express provisions of LSA-C.C.P. Arts. 3942 and 3943 the appeal must be perfected within 30 days. We, therefore, hold that the instant appeal was timely.

As concerns the untimely payment of the estimated costs and fees, this court is without jurisdiction. Succession of Stafford, 424 So.2d 1244 (La.App. 1st Cir.1982). The proper forum for a resolution of this issue is in the trial court. LSA-C.C.P. Arts. 2088 and 2126. Additionally, once an appeal has been timely lodged in the appellate- court, the issue of the appellant’s failure to timely pay cost is moot. Smith v. State, Dept. of Public Safety, 352 So.2d 443 (La.App. 3rd Cir.1977).

For the above and foregoing reasons the motion to dismiss is denied. Plaintiff-ap-pellee, Ruby N. Thomisee, is assessed costs of these proceedings.

MOTION DENIED.