L. J. Mestier & Co. v. A. Chevallier Pavement Co.

24 So. 799, 51 La. Ann. 142, 1898 La. LEXIS 574

• Court: Supreme Court of Louisiana
• Decided: December 19, 1898
• Docket: No. 12,908
• Status: Published

Opinions

Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

The order appointing- a receiver was granted by the ■district judge in a pending suit wherein a writ of judicial sequestration had been previously ordered by him as a conservatory measure, •on the request of the plaintiff, and without consent of the defendant, ■either express or implied.

The ground on which plaintiffs and appellees request the dismissal ■of the defendant’s appeal is that the appeal having been taken from an order appointing a receiver, it can not be allowed to stand because same is an interlocutory decree, which does not cause an irreparable injury.

That, as it was a supplementary order to that granting a writ of judicial sequestration, its issuance was within the discretionary power of the district judge, with which the Supreme Court will not interfere.

In other words, that the receiver was only appointed to take charge and dispose of a few things, and not for the liquidation of the corporation.

In our opinion, this does not belong to the class of cases this court had under consideration in Brewing Company vs. Judge, 46 An. 100, and Harrod vs. Sewerage Company, 49 An. 1595.

These decisions held that an order appointing a receiver is not appealable when the record discloses that same was procured or acquiesced in subsequently by a formal act or resolution of the corporation, to which the receiver is appointed.

A judgment or interlocutory decree which has been acquiesced in is non-appealable (C. P. 567).

The interlocutory order appointing a receiver in this suit is not, perhaps, injurious per se, and has not wrought the defendant corporation an irreparable injury that is apparent. Non constat, that it may not do so in the future; and that it may do so is sufficient to entitle-it to a hearing- on appeal (C. P. 566.). State ex rel. Morey vs Judge, 31 An. 824; Levine vs. Michell 34 An. 1181; Comminge vs. Judge, 29 An. 360; Jure vs. City, 2 An. 321; Crescent City Live Stock Co. vs. Police Jury, 32 An. 1192; State ex rel. Sigur vs. Judge, 33 An. 133; Osgood vs. Black, 33 An. 493; Anderson vs. Smith, 28 An. 649; State ex rel. Gravois vs. Judge, 33 An. 160.

The general rule is that a suspensive appeal will lie from a judgment appointing a receiver. Metropolitan Bank vs. Commercial Soap, Candle and Starch Manufactory, 48 An. 1883.

In re Moss Cigar Co. Limited, on rehearing, 23 So. Rep 544, the right of appeal from an order appointing a receiver was recognized, and the decisions in State vs. King, and Harrod vs. Sewerage Co., were differenced from the general rule which obtains in ordinary cases. Enet vs. His Creditors, 4 Martin 308; Martin vs. Blanchin, 16 An. 83.

The motion to dismiss is denied.