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337 So. 2d 690

Babineaux v. LeBlanc

Louisiana Court of Appeal

Decided September 23, 1976

Louisiana Court of Appeal · decided 1976-09-23

Cited by 1 later decisions — most recently January 1989

1 state decisions

Key passage — most relied on by later courts

““Once an appeal is granted in forma pau-peris, the proper remedy to traverse the affidavits of poverty or the applicant’s right to exercise the privilege is to timely apply to the appellate court to remand the case for that purpose.””

quoted by 1 later decision, including City Bank & Trust Co. v. McCaleb

Relies on 256 So. 2d 363 - Affiliated Foods, Inc. v. Blanchard · 251 So. 2d 196 - LAKE CHARLES TILE & CARPET CO. v. Foster

Good law ✅— No negative treatment on recordhow we know

Decided 1976-09-23

View the full empirical analysis of this case →

DOMENGEAUX, Judge.

¶1MOTION TO REMAND

¶2The defendants-appellees, Michael J. Le-Blane and Commercial Union Insurance Company, move to remand this suit to the district court to enable it to traverse the right of the plaintiff-appellant, Louis Babi-neaux, to continue to pursue this appeal in forma pauperis. The motion is unopposed. We remand.

¶3The record of this appeal has not as yet been lodged with this court.

¶4The pertinent facts are as follows: The plaintiff originally filed his suit in forma pauperis. The defendants filed a rule to traverse the plaintiff’s right to proceed in forma pauperis, and the rule was set for hearing on April 19, 1976. At the time of *691the hearing on the rule to traverse, the plaintiff’s attorney stipulated that his client was not a pauper and could post a bond for costs and did so. The case was subsequently tried before a jury and judgment was entered in favor of the defendants and against the plaintiff condemning the plaintiff to the payment of costs of court.

¶5After judgment, the plaintiff filed a petition for an appeal, and a motion and order to be allowed to proceed in forma pauperis on appeal simultaneously.

¶6In their motion to remand the defendants allege that they had no knowledge of the plaintiff’s motion and order to proceed as a pauper on appeal until they were served with the notice of the plaintiff’s appeal, and therefore, they never had an opportunity to traverse the plaintiff’s right to appeal in forma pauperis in the trial court, and request that the case be remanded so that the defendants might be given an opportunity to traverse the plaintiff’s right to proceed in forma pauperis.

¶7Once an appeal is granted in forma pauperis, the proper remedy to traverse the affidavits of poverty or the applicant’s right to exercise the privilege is to timely apply to the appellate court to remand the case for that purpose. Affiliated Foods, Inc. v. Blanchard, 256 So.2d 363 (La.App. 3rd Cir., 1971); Lake Charles Tile & Carpet Company v. Foster, 251 So.2d 196 (La.App. 3rd Cir., 1971). This application was timely made.

¶8The case is remanded to the trial court to allow the defendants-appellees to traverse the right of the plaintiff-appellant to proceed in forma pauperis, and for the trial court to rule on that issue.

¶9REMANDED.

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