Whipple v. Whipple

Louisiana Court of Appeal

Whipple v. Whipple

398 So. 2d 1296, 1981 La. App. LEXIS 3931

CourtLouisiana Court of Appeal

DecidedMay 12, 1981

DocketNo. 14455

StatusPublished

This text of 398 So. 2d 1296 (Whipple v. Whipple) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Whipple v. Whipple, 398 So. 2d 1296, 1981 La. App. LEXIS 3931 (La. Ct. App. 1981).

Pincite

Opinion

ELLIS, Judge:

This is a suit on two promissory notes, brought by Linda Trahan Whipple against Keith M. Whipple. Mr. Whipple then filed a reconventional demand against plaintiff. Plaintiff filed a dilatory exception of vagueness to the reconventional demand, which was maintained, and defendant was ordered to amend his reconventional demand on or before January 9, 1981, or have the demand dismissed. No amendment was filed by Mr. Whipple, and, on January 21, 1981, plaintiff moved for and obtained an ex parte order dismissing the reconventional demand without prejudice. From the judgment of dismissal, defendant has appealed.

Plaintiff has moved to dismiss the appeal on the ground that the judgment appealed from is interlocutory in nature and does not cause irreparable injury. Plaintiff relies on Simmons v. Dixon, 306 So.2d 67 (La.App. 1st Cir. 1974), which held that an ex parte judgment dismissing a suit without prejudice for failure to prosecute for five years was interlocutory and non-appealable.

We find, however, that this case is controlled by People of Living God v. Chantilly Corporation, 251 La. 943, 207 So.2d 752 (1968), in which the Supreme Court held, in a case similar to this case, that a judgment of dismissal without prejudice is an appeal-able judgment.

The motion to dismiss is therefore denied, at plaintiff’s cost.

MOTION DENIED.

Free access — add to your briefcase to read the full text and ask questions with AI

ELLIS, Judge:

This is a suit on two promissory notes, brought by Linda Trahan Whipple against Keith M. Whipple. Mr. Whipple then filed a reconventional demand against plaintiff. Plaintiff filed a dilatory exception of vagueness to the reconventional demand, which was maintained, and defendant was ordered to amend his reconventional demand on or before January 9, 1981, or have the demand dismissed. No amendment was filed by Mr. Whipple, and, on January 21, 1981, plaintiff moved for and obtained an ex parte order dismissing the reconventional demand without prejudice. From the judgment of dismissal, defendant has appealed.

Plaintiff has moved to dismiss the appeal on the ground that the judgment appealed from is interlocutory in nature and does not cause irreparable injury. Plaintiff relies on Simmons v. Dixon, 306 So.2d 67 (La.App. 1st Cir. 1974), which held that an ex parte judgment dismissing a suit without prejudice for failure to prosecute for five years was interlocutory and non-appealable.

We find, however, that this case is controlled by People of Living God v. Chantilly Corporation, 251 La. 943, 207 So.2d 752 (1968), in which the Supreme Court held, in a case similar to this case, that a judgment of dismissal without prejudice is an appeal-able judgment.

The motion to dismiss is therefore denied, at plaintiff’s cost.

MOTION DENIED.

Cite This Page — Counsel Stack

Bluebook (online)

398 So. 2d 1296, 1981 La. App. LEXIS 3931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whipple-v-whipple-lactapp-1981.

Opinion

Related

Cite This Page — Counsel Stack