Babineaux v. Southeastern Drilling Corp.
| Decision Date | 30 July 1964 |
| Docket Number | No. 1252,1252 |
| Citation | 166 So.2d 742 |
| Parties | Cleophile BABINEAUX, Jr., Plaintiff-Appellant, v. The SOUTHEASTERN DRILLING CORPORATION et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Piccione & Piccione, by Peter C. Piccione, Lafayette, for plaintiff-appellant.
Deutsch, Kerrigan & Stiles, by Marian Mayer Berkett, New Orleans, and Davidson, Meaux, Onebane & Donohoe, by Raymond Allen, Lafayette, for defendants-appellees.
En Banc.
This matter is before this Court on a motion filed by defendants-appellees to dismiss an appeal by plaintiff-appellant.
Plaintiff filed the suit in the district court in forma pauperis. After a hearing in the district court, the trial judge maintained a plea to the jurisdiction of the subject matter and exceptions of no right and no cause of action and dismissed plaintiff's suit. Plaintiff moved for and was granted a devolutive appeal in forma pauperis on January 23, 1964. Defendants filed a motion to traverse the pauper's oath on January 29, 1964, on the ground that appellant was not a pauper. The rule was made absolute on April 13, 1964. Plaintiff filed the devolutive appeal bond on April 28, 1964.
The motion to dismiss filed by defendants is based on the premise that said bond was not timely filed as prescribed under the provisions of LSA-C.C.P. Articles 2087 or 5124.
This Court is of the opinion that the motion to dismiss is without merit for under the provisions of LSA-C.C.P. Article 2088, when the trial judge granted the order of appeal in forma pauperis on January 23, 1964, he was divested of jurisdiction and the subsequent rule filed by appellees and signed by the trial judge, dated January 29, 1964 ordering plaintiff to show cause on February 6, 1964, why the order of January 23, 1964, should not be vacated, and the making of said rule absolute, was a nullity and without effect.
LSA-C.C.P. Article 2088 provides:
None of the articles mentioned in the above Code...
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Babineaux v. Southeastern Drilling Corp.
...He appeals. We have earlier overruled the defendant's motion to dismiss the plaintiff's appeal as not timely perfected. La.App., 166 So.2d 742. The plaintiff alleges that his injury was sustained in the course of his employment with the Seacat Offshore Drilling Company, the Seacat Marine Dr......
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Johnson v. Patout
...pauperis under LSA-C.C.P. Art. 5181 et seq. Malveaux v. Buller, La.App. 3 Cir., 131 So.2d 571; see also Babineaux v. Southeastern Drilling Corp., La.App. 3 Cir., 166 So.2d 742. The appellants did not seek such relief prior to the abandonment of their appeal by the delay due to their fault i......
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Lake Charles Title & Carpet Co. v. Foster
...of poverty is to make timely application to the appellate court to remand the case for such purpose. Babineaux v. Southeastern Drilling Corporation, 166 So.2d 742 (La.App. 3 Cir. 1964). See also: Brewer v. Thoele, 186 La. 168, 171 So. 839 (1937); Buckley v. Thibodaux, 181 La. 416, 159 So. 6......
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Cahee v. Associated Indem. Corp.
...of poverty is to make timely application to the appellate court to remand the case for such purpose. Babineaux v. Southeastern Drilling Corporation, 166 So.2d 742 (La.App. 3 Cir. 1964). See also: Brewer v. Thoele, 186 La. 168, 171 So. 839 (1937); Buckley v. Thibodaux, 181 La. 416, 159 So. 6......