American Steel Building Co. v. Brezner , 1963 La. App. LEXIS 1147 ( 1963 )

PER CURIAM.

In this case defendant has filed a motion to dismiss plaintiff’s appeal on the ground that plaintiff did not pay to the clerk of the trial court, at least 3 days prior to the return date, all costs of preparing the record on appeal, and the filing fee required by the appellate court, in compliance with LSA-C.C.P. Article 2126.

The record shows that judgment in defendant’s favor was read and signed by the trial court on March 12, 1963. On March 26, 1963, plaintiff moved for and was granted an order for suspensive and devolutive appeals, returnable to the Court of Appeal, Third Circuit, on May 24, 1963. No extension of this return date was moved for or granted.

Plaintiff appellant admits that the costs of preparing the record for appeal were not paid to the clerk of the trial court until May 24, 1963, which was the return date. However, the facts also show that even though the clerk of the trial court had not timely received these costs from plaintiff appellant he went ahead and delivered the record and the filing fee to the appellate court, where they were received on May 22, 1963.

Defendant appellee contends that since the costs of preparing the record for appeal were not paid to the clerk of the trial court, at least 3 days prior to the return date, in compliance with LSA-C.C.P. Article 2126, the appeal must be dismissed. This argument was answered in the very recent case of Matlock v. Allstate Insurance Company, 150 So.2d 776 (3rd Cir. Appeal 1963) in which we held as follows:

“The trial clerk is not required to lodge the record with the appellate court unless such costs and fees are paid. LSA-C.C.P. Art. 2127; LSA-R.S. 13:-4445. However, when the trial clerk does timely file the record in the appellate court, together with the payment of the appellate court’s filing fee, then the question of the appellant’s failure to comply with LSA-C.C.P. Art. 2126 becomes moot, since the purpose of the article is simply to assist the trial clerk to receive such fees and costs in time to file the record in the appellate court by the return date. See Official Revision Comments LSA-C.C.P. Art. 2126; see also, LSA-C.C.P. Art. 2127; LSA-R.S. 13:4445.”

In the instant case the trial clerk timely filed the record in the appellate court, together with the appellate court’s filing fee of $25. Under the holding in the Matlock case, quoted above, the question of appellant’s failure to timely pay the trial clerk, in compliance with LSA-C.C.P. Art. 2126, has become moot.

For the reasons assigned the motion to dismiss plaintiff’s appeal is denied.

Motion to dismiss appeal denied.