4 So. 2d 829 | La. | 1941
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *789 This case is before us on a writ of certiorari and a rule on the defendants and the judge of the district court to show cause why a writ of mandamus should not be issued to compel the judge to grant the plaintiffs a suspensive appeal from a judgment dissolving a temporary restraining order and rejecting the plaintiffs' demand for an injunction. They aver that each one of them is proprietor of a business establishment of a class described in an ordinance adopted by the Police Jury of the Parish of Rapides, undertaking to regulate such establishments, and that each of them therefore has a property right which will be destroyed or impaired if the ordinance is enforced. They contend that the police jury had no authority in law to adopt the ordinance and that it is unconstitutional for certain reasons stated in their petition. The defendants *791 are the Police Jury of the Parish of Rapides, the District Attorney for the Ninth Judicial District, in which the parish is embraced, and the sheriff of the parish. The judge of the district court granted, ex parte, the temporary restraining order and a rule on the defendants to show cause why a preliminary injunction should not be issued. The defendants in response to the rule filed a motion to dissolve the temporary restraining order, and at the same time filed exceptions to the suit, and, with reservation of the motion and exceptions, answered the suit, and claimed that the police jury had authority in law to adopt the ordinance and that it was a valid ordinance. On the hearing of the rule the case was tried virtually on its merits, and a judgment was rendered dissolving the restraining order and recalling the rule to show cause why the preliminary injunction should not be issued, and rejecting the plaintiffs' demand at their cost. It appears from the entry of the judgment on the minutes of the court that the judge in his decree declared that the third section of the ordinance was unconstitutional and that in all other respects the ordinance was valid. The third section is the one which purports to impose the penalty of fine or imprisonment or both fine and imprisonment for a violation of the ordinance.
Counsel for the plaintiffs, in open court, immediately after the judgment was rendered, asked for a devolutive and suspensive appeal. The defendants objected to the granting of a suspensive appeal, and the judge, after hearing arguments on the motion and objection, refused to grant a suspensive appeal, but granted a devolutive appeal, *792 and fixed the return day and the amount of the appeal bond. The attorneys for the plaintiffs then gave notice of their intention to apply to this court for writs of certiorari and mandamus to compel the judge to grant them a suspensive appeal.
What the attorneys for the plaintiffs mean by a suspensive appeal in this case is one which would have the effect of maintaining the temporary restraining order in full force and effect, and of preventing, in the same way that a temporary injunction would prevent, the execution or enforcement of the ordinance while the appeal is pending.
It is declared in Section 5 of Act No. 29 of 1924, regulating the procedure and defining the authority of the courts with reference to temporary restraining orders and preliminary injunctions, that "no appeal shall be allowed from any order granting, continuing, refusing or dissolving a restraining order". It is declared also in that section of the statute that where, after a hearing, a preliminary injunction is granted, continued, refused or dissolved by an interlocutory order or decree, or where an application to dissolve an injunction is refused by such an order or decree, a devolutive appeal but not a suspensive appeal from the order or decree may be taken as a matter of right. It is declared also in that section that the judge of the district court may in his discretion allow to a party enjoined a suspensive appeal from an order granting a preliminary injunction, and that if the judge refuses to grant a suspensive appeal to the party enjoined in such a case the appellate court having jurisdiction may allow *793 the suspensive appeal. To show that the judge in this case had no authority in law to allow the plaintiffs a suspensive appeal, we quote the 5th section of the statute, so far as it is pertinent, thus:
"No appeal shall be allowed from any order * * * dissolving a restraining order; but, where upon a hearing, a preliminary writ of injunction shall have been * * * refused * * * by an interlocutory order or decree, * * * a devolutive [appeal] but not a suspensive appeal, may be taken as a matter of right from such interlocutory order or decree".
The statute therefore in unmistakable terms forbade the judge in this case to grant the plaintiffs a suspensive appeal, either from the dissolving of the restraining order or from the refusal of the judge to grant a preliminary injunction. So far as the judgment rejected the plaintiffs' demand and dismissed their suit it could not be appealed from suspensively, because there was nothing that could be suspended by the plaintiffs' taking an appeal and calling it a suspensive appeal. A suspensive appeal, as distinguished from a devolutive appeal, is one which stays execution of the judgment appealed from. Therefore an appeal from a judgment which merely rejects the plaintiff's demand and dismisses his suit at the outset is essentially only a devolutive appeal, even though the judge and the appellant may call it a suspensive appeal.
The case of Brock v. Stassi,
"There was therefore no authority for the judge to order the executory proceedings stayed by virtue or effect of the so-called suspensive appeal from the judgment rejecting Stassi's demand and dismissing his petition for an injunction. An appeal from a judgment dismissing a suit at its inception is not a suspensive appeal, because there is then nothing to suspend — whatever may be the name given to the appeal."
To the same effect was the decision in the case of Snowden et al. v. Red River Bayou Des Glaises Levee Drainage District et al.,
"In this instance, no preliminary injunction ever issued, and hence no preliminary injunction was ever dissolved, to be reinstated, as it were, by a suspensive appeal. * * * *796
"The law does not contemplate that a restraining order, granted by the trial judge, pending an application for a preliminary injunction, should be, as it were, reinstated by a suspensive appeal, and operate during the pendency of the appeal. It contemplates that such an order shall pass out of existence, and so remain, in the lower court."
In the opinion rendered in the case of Agricultural Supply Co. v. Livigne,
If the judge in this case had granted the plaintiffs a preliminary injunction and afterwards dissolved it in consequence of his rejecting the plaintiffs' demand or dismissing their suit, they would have been entitled to a suspensive appeal, i.e. one which would have kept the preliminary injunction in force pending a hearing of the case on appeal. It was so decided in Everett v. Hue Aarnes,
The remedy afforded by Act No. 29 of 1924, to a plaintiff who is denied a preliminary injunction to which he is entitled, is in section 6 of the act; that is, he should apply to this court for writs of certiorari and mandamus, not to compel the judge of the district court to grant a suspensive appeal, but to compel him to grant the preliminary injunction; and on a sufficient showing this court will issue a temporary stay order with the writ of certiorari, to preserve the status in quo.
The respondents have filed in this court a document in which they join in the request that the court issue the writ of mandamus to compel the judge of the district court to allow the plaintiffs a suspensive appeal. That is, in effect, merely an agreement on the part of the defendants that they will not attempt to enforce the ordinance in contest until the case is decided on appeal. There is nothing illegal in such an agreement, and if it is carried out, as it should be, it will be as availing to the plaintiffs as a preliminary injunction or a suspensive appeal would be. But there is no reason why we should compel the judge of the district court to grant the plaintiffs a suspensive appeal from the judgment which he rendered against them. He granted them a devolutive appeal, which is all that the law allowed *798 them, and they are protected now by the agreement of the defendants that the ordinance complained of shall not be enforced before the case is decided on appeal.
According to the record before us the judge had not signed the judgment which he had rendered when the plaintiffs asked for and were granted an appeal. We assume that the judgment was signed before the appellants filed their appeal bond; otherwise the appeal will have to be dismissed, even though the appellees may not move to dismiss it. There is no right of appeal from a final judgment until it is signed. Succession of Savoie,
The rule to show cause why a writ of mandamus should not be granted is recalled and this proceeding is dismissed at relators' cost.