Inabinet v. State Farm Automobile Insurance

ELLIS, Judge.

This case is before us on a motion to dismiss the appeal. The basis of the motion is that the transcript of the testimony was wrongfully placed in the record by appellants because it was paid for by the plaintiffs-appellees and is therefore their property. They claim that, since the defendants-appellants knew the testimony was not theirs, and did not pay for same, it should not be considered as part of the record, and the appeal should be dismissed because the record is incomplete, or because all costs have not been paid by the appellant.

The motion to dismiss was filed in this court on May 27, 1959. The return day was May 1, 1969, and the record was lodged in this court on April 22, 1969.

Article 2161 of the Code of Civil Procedure provides:

“An appeal shall not be dismissed because of any irregularity, error, or defect unless it is imputable to the appellant. Except as provided in Article 2162, a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later.”

Since the motion was filed more than three days after the return date, it is too late. The motion to dismiss is denied, at mover’s cost.

Motion denied.