Ross v. Hatchette

247 So. 2d 399 (1971)

Elliot Ray ROSS, Plaintiff-Appellant,
v.
Dr. Charles V. HATCHETTE et al., Defendants-Appellees.

No. 3509.

Court of Appeal of Louisiana, Third Circuit.

April 23, 1971.

W. Monroe Stephenson, New Orleans, for plaintiff-appellant.

Hall, Raggio, Farrar & Barnett, Lake Charles, for defendants-appellees.

Before SAVOY, HOOD and CULPEPPER, JJ.

On Motion to Remand

PER CURIAM.

The defendants-appellees have filed a motion to remand the instant case to the district court for the purpose of traversing the order of the district judge allowing plaintiff-appellant to prosecute this action without payment of costs or the giving of any bond for costs.

By order of court dated December 10, 1962, plaintiff was allowed to file the instant suit in forma pauperis. On January 25, 1971, written reasons for judgment were assigned; and on February 16, 1971, formal judgment was signed. On February 23, 1971, an order was signed by the district judge allowing plaintiff to appeal this case. Nothing is mentioned in the order about the furnishing of a bond.

In Oldham v. Hoover, 140 So. 2d 417 (La.App. 1 Cir. 1962), the court said:

"Our courts have held that where a devolutive appeal is taken in forma pauperis without allowing the appellee sufficient time in which to traverse the affidavits of poverty, the appellate court may, upon timely application therefor, remand the cause to give the appellee the opportunity to do so. See Brewer v. Theole, 186 La. 168, 171 So. 839; Buckley v. Thibodeaux, 181 La. 416, 159 So. 603." (Emphasis added.)

In the instant case appellees have had from December 10, 1962, to February 16, 1971, during which to traverse the affidavits in the district court.

We are of the opinion that it would be inequitable to allow defendants to traverse at this late date in view of the length of time they have had to traverse.

For the reasons assigned the motion to remand is denied.

Motion denied.