Mire v. Chevron Oil Co. , 1977 La. App. LEXIS 4909 ( 1977 )

MOTION TO DISMISS

FORET, Judge.

The plaintiff-appellee, Clyde J. Mire, moves to dismiss the suspensive appeal of the defendants-appellants, Chevron Oil Company and Exxon Corporation, on the grounds that the order of appeal set a return date in excess of that permitted under LSA-C.C.P. art. 2125. The motion is opposed.

We deny the motion.

A final judgment was read and signed on March 14, 1977, and notices of judgment were mailed on March 16, 1977. On April 14, 1977 the defendants timely moved for, and were granted, a suspensive appeal, returnable to this court on July 12,1977. The defendants timely perfected their appeal by filing their appeal bond on April 14, 1977.

On June 9, 1977 the defendants filed a Motion to Amend Return Date of Appeal, requesting that the original return date entered by the clerk and/or trial judge, July 12, 1977, be amended to June 12, 1977 to comply with the requirements of LSA-C. C.P. art. 2125. An order was signed by the trial court on June 9, 1977 resetting the return date to June 12, 1977.

On June 9,1977 the Clerk requested from the trial court a 30-day extension of the return day of June 12, 1977, and on the same date the trial court granted the request, extending the return date to July 12, 1977. The record was filed with this court on June 20, 1977.

On June 23, 1977 the plaintiff-appellee timely filed a Motion to Dismiss the appeal of the defendants on the grounds that the originally set return date was improperly set under LSA-C.C.P. art. 2125, which, “warrants the dismissal of the appeal.”

We disagree, and judge the issue moot, for the trial court, upon the request of the defendants-appellants, corrected the error prior to the passage of the proper return date which should have been set under LSA-C.C.P. art. 2125. Cramer v. Brown, 26 La.Ann. 272. Even so, the appeal should not be dismissed, as the error was that of the clerk and/or trial judge, and an appeal “shall not be dismissed because of any irregularity, error, or defect unless it is imputable to the appellant.” LSA-C.C.P. art. 2161. Vinyard v. Stassi, 152 So. 161 (La.App.1st Cir.1934) and cases cited therein.

For the reasons assigned the motion of the plaintiff-appellee to dismiss the appeal of the defendants-appellants is hereby denied.

MOTION DENIED.