Union Service Industries, Inc. v. Bonner

HALL, Judge.

Appellees Union Service Industries, Inc. and Weil Brothers Cotton, Inc. filed timely motions to dismiss this appeal, supported by affidavits. No response to the motions was filed by appellants. Because appellants failed to pay the costs of preparing the record within three days prior to the return date, we dismiss the appeal.

Union instituted this proceeding under LSA-R.S. 54:17 to determine the ownership of cotton stored by it. The trial judge found that Weil Brothers was the owner of most of the cotton in accordance with a contract between Weil Brothers and appellants. The judgment was signed on August 5, 1976. Upon appellants’ motion an order granting a devolutive appeal was signed on October 1 and filed on October 11. The appeal was made returnable November 30.

After the filing of the appeal bond, the clerk of court prepared the record on appeal. On November 10, he notified counsel for appellants that the transcript was completed and the cost was $740.16. The letter of November 10 was not answered and the costs were not paid to the clerk prior to the return date of November 30. The return date was not extended, and the record was not lodged in the Court of Appeal until December 21.

LSA-C.C.P. Art. 2126, as amended by Act 708 of 1976, provides:

“The appellant shall pay to the clerk of the trial court, not later than twenty days after the granting of the order of appeal, all costs as estimated by said clerk for the preparation of the record on appeal, and the filing fee required by the appellate court to lodge the appeal.

“The twenty-day time limit may be extended once for not more than twenty additional days by the district judge. Such extension shall be in written form.

“Any difference between the estimated costs and the actual costs shall be remitted by the clerk of the trial court or paid by the appellant, as the situation may require, not later than three days prior to the return day or extended return day.”

LSA-R.S. 13:4445, which was also amended by Act 708 of 1976, contains substantially the same requirements.

The effective date of Act 708 of 1976 was October 1,1976. The order of appeal in this case was signed October 1, 1976, and filed October 11. Payment of the costs of preparing the record on appeal in this case is governed by the article and statute as amended.

Prior to its amendment the article and statute required payment by the appellant of the costs of preparing the record on appeal and the filing fee required by the appellate court no later than three days prior to the return day or extended return day. The amendment added the provisions relative to payment by the appellant of estimated costs within twenty days after the granting of the order of appeal. The apparent purpose of the amendment is to require payment by the appellant prior to the time the record is actually prepared. The article and statute, as amended, still require payment of the balance, if any, of actual costs no later than three days prior to the return day or extended return day.

In this case, the procedure relative to payment of estimated costs was not followed. Nevertheless, appellant was required to pay the balance of actual costs no later than three days prior to the return day. Appellant was given notice of the amount due, but failed to timely pay the costs.

Where the record is not timely lodged in the Court of Appeal because of nonpayment of costs and fees for reasons imputable to the negligence, error or fault of the appellant, the appeal is subject to dismissal. LSA-C.C.P. Art. 2161; Case v. Case, La.App., 316 So.2d 418, after remand 322 So.2d 354 (La.App.2d Cir. 1975); Huff v. Caldwell, 297 So.2d 463 (La.App.2d Cir. 1974).

The motions to dismiss and the attached affidavit of the clerk of the district court establish appellant’s failure to comply with LSA-C.C.P. Art. 2126 and LSA-R.S. 13:4445. The failure to pay costs is imputable to the fault of appellants and, accordingly, the appeal must be dismissed.

For the reasons assigned, the motion to dismiss is sustained, and the appeal is dismissed at appellants’ costs.

Appeal dismissed.