Borenstein v. Joseph Fein Caterers, Inc.Borenstein v. Joseph Fein Caterers, Inc.
Plaintiffs, having interests in a piece of property in the New Orleans Vieux Carre, sued both owners and lessee of an adjacent property for certain injunctive relief.
On April 6 the lessee filed a rule to fix its expert’s fee аnd tax it as costs against plaintiffs.
On May 4 judgment was rendered fixing that fee at $600 and ordering it taxеd as costs against plaintiffs.
On May 15 plaintiffs obtained both an order of suspensive appeal from the May 4 judgment fixing and taxing the expert fee, and an order of devolutive appeal from the March 9 judgment dismissing plaintiffs’ suit against the lessee.
The lessee moves to dismiss the suspensive appeal, citing Vitale v. Checker Cab Co., Inc.,
In Whitney, there was a motion to dismiss “a separate and supplemental appeal from a judgment tаxing costs in behalf of certain expert witnesses, because the amount of that рarticular decree is not sufficient to give this court jurisdiction.”
In Lazarus, the basic final judgment had been reviеwed by the Supreme Court and already reported when (apparently in the Suprеme Court itself?) “This proceeding by rule, to have [stenographic fees] taxed as сosts,” was initiated. The court observed that “the decree we are invited to render is an interlocutory one, and will, when rendered, form an addendiim to the original judgment therein. * * * Of course that judgment is a finality * * *, except as to the items and amount of the stenographer’s bill.”
Thus in both cases we find the view that a post-judgment rule to tax costs is рart of or an addendum to the final judgment, although described as interlocutory (in the sensе of supplementary thereto rather than "preliminary” as described in C.C.P. art. 1841). But a judgment for “costs” is not final until the items and amounts are determined by the judgment on the rule to fix and tax.
The fundamental question today is not whether a suspensive appeal can be hаd, but whether any appeal can be had. If so, then as a general rule the suspensive or devolutive character of the appeal is determined by the amount and timeliness of the bond provided. There are statutory provisions which limit an apрeal to devolutive in some cases and suspensive in others; but we find no such provision in regard to a judgment on a rule to tax costs.
And we believe it necessary, from the circumstance that such a judgment is almost always rendered after the fundamental final judgment disposing of the basic merits, to hold appeal available. “Preliminary” interlocutory judgments will have been rendered and appellant fully aware of their import prior to the basic final judgment; their rulings will be contained in the record on appeal from the basic final judgment; and they will be reviewable on that appeal. But this is not the case where after the basic final judgment, a judgment on rule both fixes the amount of, and taxes as costs, the various items included in “costs”. An appeal from a judgment “dismissing plaintiff’s suit at his cost” would present for review the
We believe it logically inescapable that a judgment which comes after the basic final judgment must be “separately” ap-pealable (to the court which has jurisdiction of the main demand, see Const. art. 7 § 10, last paragraph; also C.C.P. art. 4). This we think especially true of a judgment on a rule to fix and tax items of costs, which alone makes exeсutable a prior judgment for “costs” and gives it substance and definiteness, and even finality as to costs; Lazarus, supra.
We also note that appeals are favorеd in law and should not be dismissed except on clear legal ground, Favrot v. Favrot,
The motion to dismiss appellant’s sus-pensive appeal from a judgment fixing and taxing costs is denied.
Motion to dismiss denied.