Thibodeaux v. Aetna Casualty & Surety Co.

On Motion to Dismiss

En Banc.

SAVOY, Judge.

This matter comes before the Court on a motion filed by appellees to dismiss the appeal for the reason that the record was not lodged in this Court on the return date fixed by the district judge, namely, June 17, 1968, due to the fault of the appellants in failing to return the original transcript of testimony to the Clerk of the district court in time to allow preparation of the record within the allotted time, despite repeated requests from the office of the Clerk for the return of the transcript of testimony.

The record reveals that the appeal in the instant case was lodged in this Court on June 19, 1968, and the motion to dismiss the appeal was filed on June 25, 1968.

We are of the opinion that the motion to dismiss the appeal should be overruled for the reason that said motion was not filed within three (3) judicial days after the appeal was lodged in this Court as provided for by LSA-C.C.P. Article 2161 and Mid-State Homes, Inc. v. Davis, 169 So.2d 404 (La.App. 4 Cir. 1964).

For the reasons assigned the motion to dismiss the appeal is overruled.

Motion to dismiss overruled.