Enterkin v. Devaux , 1972 La. App. LEXIS 6588 ( 1972 )

MILLER, Judge.

Plaintiff John Robert Enterkin, Sr. has moved to dismiss the devolutive appeal taken from a judgment signed January 6, 1972, which decree that plaintiff was not the father of the infant appellant Angela Michelle Devaux. The appeal was taken on January 18, 1972 in forma pauperis, without bond, on affidavits which did not meet the requirements of LSA-C.C.P. Art. 5183. The rule to traverse the January 18, 1972 pauper order was filed in the trial court on February 4, 1972 but not considered.

A new affidavit was signed on February 23, 1972 and filed on February 29, 1972. Nevertheless, plaintiff appellee is entitled to traverse the facts alleged in the affidavits as well as the authority of those who executed the affidavits. LSA-C.C.P. Art. 5184.

We remand the case to the trial court to take evidence on this issue and to rule on the issues raised by the rule to traverse. Cahee v. Associated Indemnity Corp., 247 So.2d 279 (La.App. 3 Cir. 1971).

The motion to dismiss is denied. Costs of this proceeding are to be assessed when the merits of the case are decided.

Remanded.