Mathies v. Fruehauf Trailer Co. , 1966 La. App. LEXIS 5068 ( 1966 )

LANDRY, Judge.

This matter is presently before us on defendants’ third motion to dismiss the appeals taken in these consolidated cases. Plaintiffs’ appeal herein from the adverse judgment of the trial court was made returnable to this Court on September 25, 1963, which return date was duly extended sixty days. Appellees’ first motion to dismiss was rejected pursuant to judgment rendered December 21, 1964, see Mathies v. Fruehauf Trailer Co., La.App., 170 So. 2d 785, (writ refused January 27, 1965), on the ground, inter alia, that failure to timely pay the costs of preparing the record for appeal could not be attributed to appellants where it appeared the clerk of the trial court neglected to send counsel for appellants a statement therefor after having advised counsel a statement would be furnished when counsel for appellant agreed to pay any amount due and owing for the preparation of the record.

On September 13, 1965, the Clerk of Court, St. Tammany Parish, submitted a statement of costs to appellants. A second motion to dismiss these consolidated appeals was filed by appellees on October 14, 1965, which motion was opposed by appellants on the ground that the costs were improperly assessed. Appellee’s second motion to dismiss was disposed of by us on December 9, 1965, on which date we held that where a single order of devolutive appeal is granted multiple appellants in consolidated cases, the appellants’ liability for costs of appeal is in solido. Based on this determination we disposed of appellee’s second motion to dismiss by ordering appellants to pay all costs of preparation of these appeals within twenty days of the date of our said order and also directed the Clerk of the trial court to transmit the records of appeal to this court within fifteen days of date of payment of all costs by appellants.

Subsequently, on January 6, 1966, after the costs were paid and the record of appeal lodged in this court pursuant to our order of December 9, 1965, appellees timely filed this third motion to dismiss these appeals, which is before us pursuant to an order of this court directing the parties to show cause by briefs, on or before March 4, 1966, why these appeals should or should not be dismissed.

Our careful consideration of the motions, responses, briefs and pleadings before us discloses that mover’s present complaints related to the identical circumstances upon which they predicated their aforesaid second motion to dismiss, which motion was disposed of by this court on December 9, 1965, as herein previously shown. We further find that appellants have literally complied with our order of December 9, 1965, consequently defendants’ present motion is without basis or foundation and is therefore rejected and dismissed.

It is therefore ordered, adjudged and decreed that the motion to dismiss these appeals filed January 6, 1966, be and the same is hereby rejected and denied at appellees’ costs.

Motion denied.