Trahan v. Demarcey

381 So. 2d 513

Opinion

PONDER, Judge.

This is a motion to dismiss an appeal from an interlocutory judgment overruling an exception to venue.

Code of Civil Procedure Article 2083 provides that an appeal may be taken from an interlocutory judgment which may cause irreparable harm. Appellant in this case made a strong argument that irreparable injury was present because prescription would be a serious question if venue is not proper.

We are unable to grant any relief because the exception to venue was filed after a preliminary default was taken. Under Code of Civil Procedure Article 928 the declinatory and dilatory exceptions must be pleaded prior to answer or judgment by default. This means that the right to object to venue is waived when a preliminary default has been entered. Foster v. Breaux, 238 So.2d 803 (La.App. 1st Cir. 1970), reversed on other grounds, 270 So.2d 526 (La. 1972).

For these reasons the motion to dismiss is granted at appellants’ costs.

MOTION GRANTED.