Alford v. State ex rel. Department of Transportation & Development

KING, Judge.

RULE TO DISMISS

This court, sua sponte, issued a Rule to Show Cause why defendant-appellant’s appeal should not be dismissed on the ground that the trial court entered an order of dismissal of the appellant’s appeal on September 23, 1988. The trial court dismissed the appeal due to the appellant’s alleged untimely payment of the fees for the preparation of the trial transcript.

After the trial on the merits in the instant case, the trial court rendered judgment against the appellant on April 5,1988. An order for an appeal was granted by the trial court on May 10, 1988. On May 12, 1988, a statement of estimated costs was sent to the appellant’s attorney notifying him of the estimated costs for the preparation of the trial transcript.

The costs for the preparation of the transcript were not paid until September 16, 1988. However, the court reporter had been forced to obtain extensions of the return day until September 29,1988, due to her own inability to prepare the record within the time provided. The record was lodged in this court on September 29, 1988; however, the delay between September 16 when the costs were paid and the date when the record was lodged in this court was due to the court reporter. Therefore, the delay in the lodging of the record was not imputable to the appellant.

Before appellant had paid the fees, appellees filed in the trial court a motion to dismiss the appeal. This motion was based on the appellant’s alleged untimeliness in paying the estimated costs as provided in La.Code Civ.Proc. Art. 2126. Following a hearing on September 23, 1988, on this motion, the trial court rendered a judgment dismissing the appellant’s appeal. Thus, the trial court’s order of dismissal was entered after the fees had been paid by the appellant. This court issued an Order on September 29, 1988, which ordered appellant to show cause why its appeal should not be dismissed in accordance with the trial court’s judgment of September 23, 1988. Appellant filed a brief in opposition to the dismissal on October 24, 1988. Ap-pellees’ Memorandum in Support of Motion to Dismiss was filed in this court on October 26, 1988.

The instant case is not unlike a case previously decided by this court. This court reached the following conclusion on a motion to dismiss which was filed in City of Natchitoches v. The Keg of Northwestern, Inc., 349 So.2d 466, 467 (La.App. 3rd Cir.1977), writ denied 351 So.2d 176 (La.1977):

[1,2] Plaintiff has moved to dismiss the appeal on the ground that the appellant failed to timely post the estimated costs of the appeal as required by LSA-C.C.P. art. 2126. When the record of appeal has been lodged timely with the appellate court, together with the filing fees, the question of appellant’s failure to pay timely the costs and fees required is moot. Succession of Nunez ex rel First Nat. B. of A. v. Pickett, 335 So.2d 778 (La.App. 3 Cir.1976). Appeals are favored and will be maintained absent a clear showing of a legal ground for dismissal. Davidge v. Magliola, 346 So.2d 177 (La., 1977). The motion is denied.

See also, Agricultural Equipment Company, Inc. v. Meloncon, 453 So.2d 671 (La.App. 3rd Cir.1984).

As pointed out above, the costs were paid by appellant in the instant suit prior to the trial court’s order dismissing the appeal. While the record was not yet lodged in this court at the time of the order, this failure was not the fault of the appellant. Therefore, on the basis of the above authorities, this court holds that the trial court erred in dismissing the appellant’s appeal. Accordingly, in the interest of justice and judicial efficiency, this court hereby recalls its Rule to Dismiss.

RULE RECALLED.