Shreveport Laundries, Inc. v. Red Iron Drilling Co.

192 So. 895, 1939 La. App. LEXIS 496

• Court: Louisiana Court of Appeal
• Decided: March 31, 1939
• Docket: No. 5930.
• Status: Published

Opinions

TALIAFERRO, Judge.

Plaintiffs, five in all, alleging themselves, respectively, to be the owners, lessees, sub-lessees and occupants of the surface lease .and building upon Lot Two (2) of Block Twenty-One (21) of the Rodessa townsite, in Caddo Parish, Louisiana, instituted this suit against defendants, four in number, to recover damages caused to them, respectively, by a nuisance, very close to said property, of defendants’ alleged creation. In addition to damages accrued to time suit was filed, they each sue to recover a specific amount of damages for each day the complained of condition is allowed to exist. They pray for injunctions, mandatory and prohibitory.

A very large record was built up in the trial below; a voluminous quantity of testimonial proof was adduced. The demands of plaintiffs were rejected and they appealed.

Appellees have here moved to dismiss the appeal on the ground that when the case was submitted for decision below more then the sum of Two Thousand Dollars, exclusive of interest, was involved, and,' therefore, this court is without jurisdiction ra-tione materiae to hear the appeal. Appellants oppose the motion vigorously with lengthy supporting brief. It is evident that for us to intelligently pass on the motion, it will be necessary for us to give to the record the same study and consideration that we would in order to pass on the merits of the case; and if the motion should be found to be without merit, then the case necessarily would have to be again placed on the calendar for hearing on its merits.

This case was not placed on our February calendar. By consent of counsel, the motion to dismiss was then submitted without argument. As a rule we do not hear and pass on motions to dismiss an appeal prior to submission of the case on its merits. It has occasionally happened that such motions were entertained by this court in advance of hearing on the merits, but in such cases the merits of the motion could be easily determined from the face of the papers or from a cursory study of the record. This may not be done in the present case. And in view of this situation, we have decided to return the present appeal to the calendar, together with the motion to dis miss, to be docketed for hearing in its regular course.

And it is so ordered.