Donaldson's Heirs v. City of New Orleans

118 So. 134, 166 La. 1059, 1927 La. LEXIS 1910

• Court: Supreme Court of Louisiana
• Decided: July 11, 1927
• Docket: No. 28662.
• Status: Published

Opinions

On Motion to Dismiss.

ST. PAUL, J.

Plaintiffs, claiming to be the owners of a certain portion of ground, prayed for judgment against defendant canceling and erasing a certain paving assessment levied upon said land, and perpetually enjoining defendant from collecting or attempting to collect the same; also that they be recognized as the owners of a certain strip taken off said land for street purposes, and either restored to the possession of said strip or aEowed the value thereof and the damages to the rest of the land by reason of said taking.

A preliminary injunction issued in due course; and afterwards there was a full trial on the merits. Whereupon there was judgment “dismissing said plaintiffs’ suit at their cost.”

I.

gome fifteen days after the rendition and signing of said judgment, plaintiffs took a devolutive appeal therefrom; and defendant moves to dismiss said appeal on the ground that under the provisions of Act 29 of 1924, p. 45, any appeal, whether “devolutive or suspensive, must be taken * * * within ten days from entry” of the order or decree granting or refusing an injunction ' (vide section 5).

II.

Act 29 of 1924, as appears from the title thereof, purports to regulate procedure and practice only “in respect of temporary restraining orders and preliminary writs of injunction”; and therefore applies only to interlocutory judgments granting, continuing, refusing, or dissolving, pendente Me, temporary restraining orders and preliminary injunctions.

But where, as in this case, a preliminary injunction has been aEowed pendente lite, and is dissolved only as the necessary result of a final judgment disposing of the whole case, it is clear that both the right of appeal from said final judgment and the effect thereof, are governed by the provisions of the general law on the subject of appeals. O. P. arts. 565, 575, 578.

In this case the appeal was taken well within the delays allowed for the taking of a suspensive appeal. O. P. art. 593.

Decree.

The motion to dismiss is therefore denied.