Hunstock v. Hunstock

43 La. Ann. 375

• Court: Supreme Court of Louisiana
• Decided: March 15, 1891
• Docket: No. 10,798
• Status: Published

Opinions

The opinion of the court was delivered by

Bermudez, O. J.

Relying upon a judgment of emancipation and dispensation from the time required for attaining the age of majority, the plaintiffs have brought this suit to annul a certain like judgment which they, for reasons assigned, charge to be absolutely void, and to have set aside two -acts which they signed on the day on which the judgment attacked was rendered.

The defendants moved to strike out of the petition the averment of emancipation and dispensation by the second judgment, by reason of the existence of the first judgment which, until set aside, has full force and effect, and they asked also that the attacks upon the acts of sale be also expunged, except for lesion beyond moiety, because the plaintiffs by making the plea have admitted the validity of the sales and are estopped by their judicial admission from contesting the same.

This motion was treated as an exception and accordingly tried; judgment being rendered sustaining the same and dismissing the suit.

It appears that after the judgment was rendered the defendants were allowed by the court to “enter a ‘ remittitur ’ of all that portion of the judgment rendered on the exception, motion to strike out, etc., filed December 8, 1890, which dismisses plaintiff’s suit, this remittitur not to be construed as affecting that portion of said interlocutory judgment Which sustains said exception merely.

The plaintiffs objected, and on the overruling of their objections, reservecj a bill.

Subsequently, on motion of counsel for plaintiffs, it was ordered by the court that they be allowed to appeal from the judgment.

The motion in this court to dismiss the appeal charges that since the filing of the remittitur there exists no definitive judgment in the case; that the allowing of the remittitur was a virtual revision and modification of the judgment to that extent, and that the interlocutory judgment appealed from is not such as to work irreparable injury.

The judgment dismissing the suit was and is a final judgment, whether correctly rendered or not, from which the plaintiffs had a right to appeal.

The circumstance that, after it was rendered, the defendants, with leave of court, amended it, can not produce the effect of divesting the plaintiffs from their rights of appeal, particularly as they objected to the remittititr being permitted, and reserved a bill.

Had the defendants abandoned the entire judgment the plaintiffs would have had no reason to complain and therefore none to appeal; but that is not what was done or whattook place.

If plaintiffs had not appealed, under the circumstances they could not have proceeded to attack the first judgment of emancipation; they would have foregone the second judgment and have had to stand on the first, thereby abandoning one of the objects of their action.

They could not appeal from the order on the motion for a remittitur, which is interlocutory and can cause no irreparable injury, particularly by reason of the appeal from the judgment of dismissal of the suit.

This court is not therefore called upon to review this last decree and it considers that the appeal from the main judgment is authorized and must be sustained.

Motion to dismiss overruled.