
    Wallace A. EDWARDS v. Marion Larose EDWARDS.
    No. 8880.
    Court of Appeal of Louisiana, First Circuit.
    April 17, 1972.
    Gibson Tucker, Jr. (Tucker & Scho-nekas), New Orleans, for appellant.
    Julian J. Rodrigue, Covington, for ap-pellee.
    Before LANDRY, BLANCHE and TUCKER, JJ.
   TUCKER, Judge.

ON MOTION TO DISMISS APPEAL

Plaintiff-appellee, Wallace A. Edwards, moves to dismiss the appeal of defendant-appellant, Marion Larose Edwards, from a judgment signed by the trial judge on November 22, 1971, which ordered a partition by licitation of the community property acquired by the two litigants during their erstwhile marriage. An order of appeal was signed by the trial court on November 29, 1971 granting defendant-appellant a suspensive appeal to this court, returnable on or before January 24, 1972.

In his motion appellee sets forth the clerk of the lower court made no application for an .extension of the return date, and that the costs of preparing the record for appeal and the filing required by this court were not paid, and such costs had not been paid when this motion was filed.

The appellee urges that the failure of the clerk to lodge this appeal timely is attributable to the fault of the appellant in failing to pay the above mentioned fees on time, and, therefore, that the appeal should be dismissed.

The appellant, on the other hand, contends that the record was not filed on the return day on account of the clerk’s failure to obtain an extension of the return date, when he knew that the record would not be prepared in time to be filed with this appellate court on January 24, 1972, and appellant further states that since the record was not complete, there was no way for her to determine what amount of costs were due the clerk for preparing the transcript of the record. Therefore, appellant maintains that she could not comply with that provision of the law which requires appellant to advance these costs three days before the return day.

There is nothing before us to indicate the record ever was completed, and, as a matter of fact, the converse is true in that the transcript of the testimony by the court reporter was not finished before the return day. Incidentally appellant does not claim that the record was completed before the return day.

The issue is clear cut, and we quote the pertinent provisions of the Code of Civil Procedure and the Revised Statutes which bear upon a proper analysis and determination of the problem involved:

C.C.P. Article 2126: “The appellant shall pay to the clerk of the trial court, not later than three days prior to the return day, all costs of preparing the record on appeal, and the filing fee required by the appellate court to lodge the appeal.”
C.C.P. Article 2127: “The clerk of the trial court shall have the duty of preparing the record on appeal. He shall cause it to be lodged with the appellate court on or before the return day or any extension thereof, upon the timely payment to him by the appellant of all fees due in connection with the appeal, including the filing fee required by the appellate court to lodge the appeal. Failure of the clerk to prepare and lodge the record on appeal either timely or correctly shall not prejudice the appeal."
C.C.P. Article 2161 reads in part: “An appeal shall not be dismissed because of any irregularity, error, or defect unless it is imputable to the appellant. * * *”
LSA-R.S. 13:352 provides in part: “The clerks of all of the courts of appeal shall charge the following fees: (1) For filing the record of appeal — twenty-five dollars * * *”
LSA-R.S. 13:4445 (A) reads in part as follows: “Not later than three days before the return day, or extended return day, of the appeal fixed by the trial court, the appellant shall pay to the clerk of the trial court: (1) The fees to be due the clerk of the appellate court for filing the record of appeal, under the applicable provision of R.S. 13:126 or R.S. 13:352; and (2) The cost of transmitting the record of appeal to the clerk of the appellate court and all other fees due the clerk of the trial court for preparing the record of appeal. * * *”

(All emphasis supplied)

We have examined the holdings in the cases on which the appellee relies for a dismissal of this appeal. In Louisiana Power & Light Company v. Lasseigne, 255 La. 579, 232 So.2d 278 (1970) the Supreme Court held that an appeal from a judgment rendered and signed on November 30, 1962, where the appeal was made returnable to the appellate court on April 19, 1963 and ten extensions were granted with the last of these extending the return date to December 1, 1964, should be dismissed for the reason that the failure to file the record with the appellate court was due first to the fault and negligence of the appellant to furnish the clerk with certain documents and exhibits in the possession of the appellant so that the record could be completed for filing. The evidence showed unequivocally that the transcript of the record was prepared and ready for filing with the appellate court on February 6, 1964, and the appellant had some ten months until three days prior to December 1, 1964 to pay the costs and file the exhibits. It is true that the Supreme Court, while recognizing the primary duty for obtaining extensions and filing appeals being reposed in the clerk of the trial court, recounted that a second reason for the dismissal of the appeal in Lasseigne was the mandatory duty imposed upon the appellant to tender or advance the costs three days prior to the return date or any extension thereof. A failure to pay such costs as required was held as imputable to the appellant and a ground for dismissal. However, a footnote in Lasseigne on page 282 states to the effect that appellant issued his check, payable to appellant’s former attorney, to cover a billing from this attorney for the costs of the appeal, but the record did not show that the clerk ever received this check or other funds to defray these costs. It is interesting to note in Lasseigne that more than three years elapsed . . . December 1, 1964 to February 20, 1968 . . . during which time nothing was done by the appellant or anyone else about getting the appeal lodged in the appellate court. Certainly the facts in Lasseigne were more extreme than those extant in the instant case, and we are in wholehearted accord with the result in the dismissal of the appeal in the cited case. We think the language of the Supreme Court on the second count is based on the premise that the failure to pay the costs is the reason or cause for the record not having been lodged.

The present case is different from Lasseigne in that the record before us does not show that appellant’s failure to pay the costs is the reason that the record has not been lodged with this court.

The case of Martin v. Garlotte, 245 So. 2d 517 (La.App. 1st Cir. 1970) and 248 So. 2d 37 (La.App. 1st Cir. 1971) is not pertinent to the resolution of the issue here for the reason that in the cited case it was held that the failure of the appellant to pay the costs timely was the cause of the delay in filing the transcript of appeal. We note that the Supreme Court granted a writ of review in Garlotte, 259 La. 740, 252 So.2d 448 (1971). The case of Loeb v. Badalamenti, 235 So.2d 133 (La.App. 4th Cir. 1970) presents facts which are not similar to those here. In Loeb appellant obtained knowledge of the costs due for the filing of the appeal six weeks in advance of the extended return date and received a second notice two weeks prior to the return date.

In the present case the record was not sent to the appellate court because the testimony was not transcribed by the extended return day. The failure of the appellant to pay the costs had no bearing whatsoever on the clerk’s failure to lodge the appeal timely. The clerk has a clear and manifest duty to apply for an extension of the return date when the clerk cannot prepare the record timely, and when such delay is not caused by the appellant’s fault.

Two recent cases hold that, where the record contains no evidence that the failure of the court reporter to file timely a transcript of the testimony with the lower court clerk was the fault of the appellant, the motion to dismiss the appeal will be denied. See Gremillion v. Rinaudo, 240 So.2d 237 (La.App. 1st Cir. 1970) and Hebert v. Big Jim’s, Inc., 238 So.2d 273 (La.App. 3d Cir. 1970).

We do not say here that the appellant can escape her duty to pay the appeal costs in advance of the record being filed in the appellate court, but we believe that the appellant should be informed of the amount due so that she may discharge this responsibility when the record is prepared, completed and ready for filing.

For the foregoing reason appellant’s motion to dismiss this appeal is denied.

Motion to dismiss appeal denied.

LANDRY, Judge

(dissenting).

In essence the majority opinion places responsibility on the Clerk of the trial court for failure to timely lodge the record on appeal in this instance. As I understand the reasons given by the majority, Appellant is exonerated from responsibility herein, first, because Appellant was assured by the trial court Clerk that the Clerk would obtain any needed extensions, and secondly, because the transcript of testimony was not completed within the three day applicable period for payment of costs by Appellant. On this latter basis, the majority evidently concludes payment of costs could not have been made by Appellant, and in any event, tender would be a vain and useless gesture because costs were not then known. The effect of the majority opinion is to place the burden of applying for an extension on the Clerk of Court when the record is not complete within the pertinent three day period, notwithstanding Appellant has neither paid nor tendered payment of either the costs of preparing the record or the filing fees as required by LSA-C.C.P. arts. 2126 and 2127, respectively. In so holding, the majority has, in my opinion, disregarded the clear and unmistakable ruling of the Supreme Court in Louisiana Power and Light Company v. Lasseigne, 255 La. 579, 232 So.2d 278.

In Lasseigne, above, the Court found that the required costs and filing fees were not timely paid for the reason that Appellant was not billed therefor until after the return date had expired in confirmity with local custom pursuant to which the Clerk did not bill Appellant until the record was complete. The Court then noted that no local custom could contravene the express statutory provision regarding payment of costs and fees, and in this regard, stated:

“The clerk of the trial court is without authority to modify or render null such express law. Our law does not require billing for appellate costs and fees by the clerk, but to the contrary it requires timely tender by the appellant of these costs and fees to the clerk.”

In Lasseigne, the Supreme Court then stated that the intent of the several applicable statutes and codal provisions is to make uniform the responsibility for lodging the record in all appellate courts and assign the primary obligation in that regard to the clerks of the trial courts, but added:

“It is clear there was also the specific intent to overrule the Osborne case [Osborne v. Mossier Acceptance Corp., 210 La. 1048, 29 So.2d 58] by “* * * making it the mandatory duty of the appellant to pay these fees (appellate fees and costs) to the clerk of the trial court; and (2) requiring such payment to be made not later than three days before the return day, or extended return day. If the appellant fails to pay such fees timely, any delay in lodging the record of appeal in the appellate court is imputable to the appellant.” (Emphasis by the Supreme Court.)

Following the above pronouncement, the Supreme Court in Lasseigne remarked:

“We hold that the pertinent codal provisions and statutes make the filing of appellate costs mandatory upon the appellant, and that an untimely lodged record on appeal where these costs have not been tendered or advanced is imputable to the appellant and is ground for dismissal.” (Emphasis supplied.)

The court’s concluding remarks in Las seigne were:

“Although the clerk is charged with the primary responsibility of lodging the record in the appellate court and with securing extensions of return date in order that the record may be properly completed and filed, it is not incumbent upon the clerk to seek extended return dates or file the appellate record when costs and fees have not been timely advanced by the appellant or the record has not been completed for reasons imputable to the negligence, error, or fault of the appellant. It is incumbent upon appellant to keep informed of the return date and extended return dates and of the amount he must pay as costs of appeal. Timely payment or tender of payment must be made in accordance with law under penalty of the appellant’s losing his appeal.” (Emphasis supplied.)

I interpret the above language to mean (1) Clerks of trial courts may not by local custom, such as billing or otherwise, dispense an Appellant of the mandatory duty of paying or tendering costs and fees not later than three days of the return date; (2) where the required costs and fees are not timely paid, there is no obligation on the part of the trial court to either com-píete the record or request an extension if the record cannot be completed by the return date, and (3) where there has been no payment or tender of costs and fees within the prescribed statutory period, failure to lodge the appeal is attributable to the fault of Appellant, rendering the appeal subject to dismissal.

I note also that Lasseigne, above, makes it the duty of Appellant to keep informed as to the return date or any extensions thereof, and of the amounts which he must pay. I take this to mean that if costs are not fully determinable within the time they are payable, it is incumbent upon Appellant to at least pay or tender what is then known to be due, and not just sit idly by and do nothing as was done in the case at hand. While it may be that costs of transcribing testimony were not precisely known in this instance, Appellant well knew the amount of filing fees due since these are expressly fixed by statute. In this instance Appellant did not even tender known filing fees.

I therefore respectfully dissent from the denial of Appellee’s motion to dismiss the appeal.  