Smith v. Delta Food Mart , 1978 La. App. LEXIS 3049 ( 1978 )

ON MOTION TO DISMISS APPEAL

BOUTALL, Judge.

Appellee, Delta Food Mart, has filed a motion to dismiss the appeal of appellant Sylvia S. Smith on the basis that the appellant has failed to pay the estimate appellate costs to the Clerk of the trial court after demand. By affidavit of the Clerk, we are informed that appellant had not applied for an extension of the return date, September 11, 1978, and has never paid the appellate costs or filing fees and as a result the record has not been prepared by the Clerk nor lodged with the Court of Appeal.

In support of its motion, appellee has referred us to prior jurisprudence in which we dismissed the appeal because the costs were not paid. Amongst the cases are Succession of Cavallino, 336 So.2d 909 (La.App. 4th Cir. 1976) and Succession of Silas v. Marciante, 301 So.2d 367 (La.App. 4th Cir. 1974). We agree with the principles announced in those decisions, but point out that the Statutory law has changed since then. We refer especially to Code of Civil Procedure, Article 2126 and Article 2088(9), as amended by Act 175 of 1977 and applicable to appeals taken since January 1, 1978.

C.C.P. Article 2126 provides for the method by which the Clerk demands the appellate costs, and provides that the trial judge, upon motion by the Clerk or by any party, and after hearing, may:

“(1) Extend the time within which the costs may be paid, not to exceed thirty days with or without penalty upon appellant or his attorney; or

“(2) Impose a fine, not to exceed one hundred dollars, upon the appellant, or his attorney, or both; or

“(3) Dismiss the appeal.”

Consistent with these provisions, Article 2088 provides that the trial court retains jurisdiction in the case to:

“(9) Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal.”

Accordingly, appellee’s motion to dismiss should be properly directed to the trial court and not to this court. The motion before us is dismissed.

MOTION DISMISSED.