
    Herman ACOSTA, Sr. v. Harry MASTERS.
    No. 8047.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 24, 1976.
    John F. Fox, Jr., Walter R. Fitzpatrick, Jr., New Orleans, for mover.
    Charles H. Livaudais, Chalmette, for respondent.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

Defendant-appellant, after posting a $750 cash appeal bond, filed a rule in this court to obtain some relief from a $652.50 transcript cost which he says he is unable to pay. His rule raises the issue of “jurisdiction,” La.C.C.P. 2088, of trial and appellate courts after the appeal bond is filed. Concluding that jurisdiction lies with the trial court, we dismiss.

Appellant seeks to reduce his bond to $200, freeing $550 towards payment of transcript. Appellant has need for some protection: it has been held that the clerk has no authority to apply the cash bond to cost payment, and that the deposit of even ample cash as security for appeal costs does not relieve appellant of paying those costs prior to return day, under penalty of dismissal of the appeal; Case v. Case, La.App. 2 Cir. 1975, 316 So.2d 418 ($750 cash security for costs, $291 transcript and filing costs, appeal dismissed). The first problem, however, is whether this court can entertain appellant’s rule.

C.C.P. 2088, as amended by Acts 1964 No. 4 (and Acts 1968 No. 128) provides “[t]he jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the timely filing of the appeal bond . . .” (Emphasis added.) The further language of Art. 2088 is confusing in that it again denies jurisdiction in the trial court “over these [reviewable] matters except” for eight specified matters, none of which is reviewable under the appeal anyway, so that none is actually an exception to the general rule as worded since the 1964 amendment.

Prior to that amendment art. 2088 read “[t]he jurisdiction of the trial court over the case shall be divested, and that of the appellate court shall attach . . . .” (Emphasis added.) The further language repeated the denial of jurisdiction “over the case except” for specified matters which were truly exceptions to the original wording of art. 2088. The original wording caused no hesitancy in an appellate court’s considering an original application for authority to proceed in forma pauperis, Malveaux v. Buller, La.App. 3 Cir. 1961, 135 So.2d 368 (just as appellate courts had done prior to the 1960 Code of Civil Procedure, Buckley v. Thibodaux, 1935, 181 La. 416, 159 So. 603). (Perhaps it was arguable that, even as to those matters excepted from the denial of the trial court’s jurisdiction, the appellate court could have exercised concurrent jurisdiction under the original art. 2088’s general rule.)

The 1964 amendment, however, intended to reduce the “too broadly stated” general rule; 1964 Comment (c) to art. 2088. But Creel v. Creel, La.App. 4 Cir. 1967, 201 So.2d 871, 872, citing Malveaux without referring to the subsequent amendment, recited that under art. 2088 “the jurisdiction of the trial court over the matter now before us was divested . . . .” Creel granted an original forma pauperis application. Most recently, Kliebert v. Kliebert, La.App. 4 Cir. 1976, 334 So.2d 778, citing Creel without referring to the amendment, held that “under C.C.P. art. 2088 the trial court was divested of all jurisdiction . except for certain incidental proceedings and orders specifically enumerated.” Because “forma pauperis is not one of the orders authorized under the exceptions listed,” Kliebert reasoned that the trial court’s forma pauperis order was “invalid” and dismissed the appeal for failure to timely pay transcript and filing fees.

The rule now before us does not request authority to proceed in forma pauperis. The rule requests a reduction in the $750 cash appeal bond already posted, in order to withdraw $550 cash to pay towards the $652.50 transcript cost. This matter might, in theory, be within “objections to the . sufficiency of the appeal bond,” art. 2088(5), despite subd. (5)’s reference to art. 5123 (which requires citing “the party furnishing the bond ... to show cause why the bond should not be decreed insufficient . . . ”). On this theory the trial court would have jurisdiction under subd. (5)’s ’exception.

However, reduction of bond to $200 prior to payment of the $652.50 transcript fee seems at least technically objectionable. A resourceful judge would doubtless find some solution to a problem like appellant’s —perhaps, for example, by ordering the clerk to apply part of the deposit to part of the transcript fee. But would the trial court have jurisdiction for such an order, or any other responsive order not assimilable to “sufficiency” of the bond?

Our answer is that the question of whether an appellant who has posted the appeal bond should be granted some relief, and in what form, from the pre-payment of costs of appeal is not a matter “reviewable under the appeal” within C.C.P. 2088. The jurisdiction of the trial court over that matter therefore is not divested, and that of the appellate court does not attach, upon the filing of the appeal bond.

Creel and Kliebert, perhaps misled by the re-arrangement and continued presence of the “exceptions” to the no-longer-general general rule of art. 2088, erred in overlooking the 1964 amendment to the general rule of art. 2088. Insofar as they would prevent a trial judge from acting in an appealed case on any matter not reviewable under the appeal and granting any proper relief (including forma pauperis authority if entitlement is established), Creel v. Creel and Kliebert v. Kliebert are now overruled.

Since jurisdiction within art. 2088 remains with the trial court, we have no original jurisdiction to consider appellant’s rule. We have only supervisory jurisdiction to decide whether the trial court correctly grants or refuses relief.

Dismissed.

LEMMON, Judge

(concurs specially and assigns additional reasons).

The 1964 amendment to C.C.P. art. 2088 properly answers the question presented in this case. Any issue raised by facts occurring after the appealed judgment is not reviewable on that appeal because the determinative facts do not appear in the record. Such an issue must be raised by application to the trial court, which has original fact-finding jurisdiction. Once the issue is decided by the court of original jurisdiction, this court can review that decision under our appellate jurisdiction, perhaps by consolidation with the original appeal, or under our supervisory jurisdiction, if justification is shown in an application for supervisory writs.

Furthermore, the implications of this decision go far beyond the present case. This court is frequently presented with motions to dismiss an appeal on grounds of irregularity, error or defect imputable to the appellant (C.C.P. art. 2161), usually failure to pay costs timely (C.C.P. art. 2126). Since the facts relative to the grounds for dismissal do not appear in the record, the mover often attaches an affidavit to establish these facts. When the motion and supporting affidavit are not opposed, the appeal is normally dismissed. However, when the motion is opposed and the affidavit contradicted, the appellate court finds itself called upon to originally decide an issue of fact. When this situation occurs, this court will often remand the ease for presentation of evidence. Under the interpretation of C.C.P. art. 2088 in the present case, such motion should be originally filed in the trial court and decided by that court.

Other recurring troublesome situations are also remedied. For example, when an appellant fails to pay costs before the return day and the record on appeal is never lodged in this court, an appellee faces a dilemma in obtaining a dismissal by this court. Some appellees have even paid the appellant’s costs in order to have the record lodged and obtain a dismissal. Under the codal interpretation in this case, the appel-lee can move for dismissal in the trial court (where the record is located), since the trial court retains, jurisdiction over the matter which is not reviewable under the original appeal.

In my opinion the present decision eliminates many of the hairy areas in matters occurring after perfection of the appeal and makes appellate practice safer, simpler and more practical.

GULOTTA, J., dissents for the reasons assigned by STOULIG, J.

STOULIG, Judge

(dissenting).

I respectfully dissent.

The majority opinion seizes upon the phrase “reviewable on appeal” to judicially enlarge upon the exceptions to the divestiture of jurisdiction specifically enumerated by the legislature. To adopt the interpretation of the majority creates a “confusion of proper forums” which the legislature obviously intended to avoid by listing the specific actions the trial court could entertain after an appeal is perfected.

Enough uncertainty exists among lawyers and even my colleagues on this bench over what issues fall with the supervisory jurisdiction or appellate jurisdiction of this court. The majority opinion compounds this confusion by compelling the attorney to make a determination of what is “reviewable on appeal” to ascertain the proper forum for the relief which he seeks and alternatively could result in the filing of identical pleadings in both forums (out of an abundance of caution) in order to avoid the possible loss of some right. Procedural uncertainty breeds delay, additional expense and in some instances the loss of substantial rights.

The majority opinion correctly points out that the 1964 and 1968 amendments to C.C.P. art. 2088 added “the jurisdiction of the trial court over all matters in the ease reviewable under the appeal is divested, and that of the appellate court attaches, on the timely filing of the appeal bond * * * It notes that the eight exceptions listed in the article are not in fact exceptions since they are not reviewable on appeal anyway. These observations tend to imply that the only purpose for the amendments was to qualify or limit the trial court’s loss of jurisdiction to those matters reviewable on appeal. If such be the case why the need to list the purported exceptions.

A comparative analysis of the article pri- or to and subsequent to its amendment will reveal that the legislature deleted one of the three exceptions in the original article and added six additional exceptions in the amendment. This clearly indicates the legislative intent to grant post-appeal jurisdiction to the trial courts of these enumerated proceedings.

What prompted the insertion of the phrase “reviewable under the appeal” is locked within the undisclosed knowledge of the enactors. However it would be somewhat anomalous to reason the legislature by amendment conferred jurisdiction on the trial court over all matters not reviewable on appeal and then simultaneously declare that the trial courts retain jurisdiction over certain enumerated proceedings, which are themselves nonreviewable on appeal.

Whatever its shortcomings may be, C.C.P. art. 2208 as amended is an explicit, concise and exclusive declaration of the specific proceedings over which the trial courts have post-appeal jurisdiction. Any enlargement or qualification of these actions should be forthcoming from the legislature.

For these reasons, I respectfully dissent. 
      
      . Under this court’s internal rule for overruling, this opinion has been submitted to the entire court, which (with Lemmon, J., concurring with written reasons; Gulotta, J., dissenting for the reasons assigned by Stoulig, J.; Stoulig, J., dissenting with written reasons; and Morial, J., dissenting) has authorized this opinion to be handed down overruling Kliebert and Creel. Any application for rehearing will, under our internal rule, be considered en banc.
     