20 So. 2d 608 | La. | 1944
Lead Opinion
The appellees moved to dismiss the devolutive and the suspensive appeals granted to and perfected by the plaintiffs, on the following grounds:
(1) That the devolutive appeal is frivolous; (2) that the plaintiffs' petition failed to allege sufficient facts to show appellate jurisdiction in this Court; and (3) that under Section 5 of Act No. 29 of 1924, which deals with injunctions and the jurisprudence of this State interpreting and applying those provisions, a suspensive appeal is not allowed from a decree refusing a preliminary injunction, the appropriate remedy being a devolutive appeal, which was not granted by the district judge herein.
This is an action by thirty switchmen and trainmen employed by the Texas Pacific *126 Railway Company and members in good standing of the Brotherhood of Railroad Trainmen rendering services jointly to the Missouri Pacific Railroad Company and the Texas Pacific Railway Company and their joint terminals at Addis, West Baton Rouge Parish, and in Alexandria, Rapides Parish, Louisiana. They seek to have an agreement dated June 2, 1927, between the two railroad companies and the Brotherhood of Railroad Trainmen, the Brotherhood of Locomotive Engineers, and the Brotherhood of Locomotive Firemen and Enginemen enforced, and to have declared illegal a decree of the Board of Appeals of the Brotherhood of Railroad Trainmen, dated November 16, 1943, which allegedly attempts and purports to change and abrogate the agreement of June 2, 1927, to the detriment and injury of the plaintiffs. The said illegalities, changes and harmful results are set forth in detail in the petition. The petitioners also ask for injunctive relief to protect their interest pending the suit and for a permanent injunction after a trial on the merits. They were granted a restraining order by the district judge and a rule nisi to show cause why a preliminary injunction should not issue.
The Missouri Pacific Railroad Company, one of the defendants, filed an exception of misjoinder on the ground that the company was in bankruptcy to effect a plan of reorganization under Section 77, Chapter 8 of the Acts of Congress, 11 U.S.C.A. § 205, and that the trustee alone was the proper party to be sued and, therefore, the citation of the company's previously designated *127 agent for service was illegal and he was improperly made a party defendant.
The Brotherhood of Railroad Trainmen, joined by other defendants, also filed exceptions of want of proper citation against the Brotherhood.
The respondents further filed motions to dissolve the restraining order. The trial judge sustained the exception of misjoinder and dismissed the suit as to the Missouri Pacific Railroad Company. Later the trial judge rendered the following judgment:
"* * * It is ordered, adjudged and decreed that the motions filed by all of respondents to dissolve the said temporary restraining order be and the same are hereby sustained, and accordingly the said restraining order is dissolved and vacated at the cost of the plaintiffs.
"It is further ordered, adjudged and decreed that the exception of improper citation be sustained as to the Brotherhood of Railroad Trainmen, and accordingly
"It is ordered, adjudged and decreed that the rule nisi for preliminary injunction be recalled, vacated and dismissed as to all of the respondents and at the cost of the plaintiffs.
"It is further ordered, adjudged and decreed that this suit be finally dismissed as to all of said respondents at the cost of the plaintiffs. * * *"
Counsel for the plaintiffs gave notice of intention to apply to this Court for writs of prohibition, mandamus and certiorari, but this action was never taken. They did apply for devolutive and suspensive appeals *128 returnable to this Court and the district court granted the following order:
"The application for a devolutive appeal from the order of the Court recalling the rule herein and denying in effect the application for preliminary injunction is denied for the reason that the case in its entirety has been dismissed, and that having been done, in the opinion of the Court, plaintiffs are entitled only to a suspensive appeal from judgment dismissing the suit. Therefore an order will issue herein granting a devolutive appeal to the Supreme Court, returnable on the 31st day of August, 1944, from the judgment dismissing this suit as to the Missouri Pacific Railroad, and also an order will issue to plaintiffs for suspensive appeal, returnable to the Supreme Court of Louisiana, on the 31st day of August, 1944, from the judgment dismissing this suit in its entirety, returnable August 31st, 1944, bond in the first appeal to be fixed at $50.00, and in this appeal at $500.00."
We shall discuss the issues presented by the motions to dismiss the appeals in the order first hereinabove given:
(1) The motion to dismiss the devolutive appeal on the ground that it is frivolous clearly pertains to the merits of the case and cannot be considered as a basis for a motion to dismiss the appeal.
(2) Affidavits and attached documents were filed in this Court showing that the amount involved is in excess of the minimum jurisdictional amount of $2,000. The law is well settled that affidavits of this *129
kind may be filed in this Court to maintain its jurisdiction. Cousin v. St. Tammany Bank Trust Co.,
(3) The plaintiffs abandoned any claim to a right of suspensive appeal in connection with the injunction proceedings by failing to invoke this Court's supervisory jurisdiction. In asking for the devolutive and the suspensive appeals, which were granted, the plaintiffs separated them, making it clear that as to the final judgment dismissing the case they were entitled to a suspensive appeal as a matter of right wholly disassociated from any question arising in connection with the injunction proceedings which were merely incidental to the main demand. They are not contending before this Court that the trial judge should have granted a suspensive appeal in connection with the injunctive relief sought and denied them. They simply take the position that where there is a final judgment dismissing a suit outright, the plaintiff is entitled to a suspensive appeal as a matter of right.
In the case of Agricultural Supply Co., Inc., v. Livigne et al.,
"On the trial of the rule for a preliminary injunction, the only question for decision before respondent judge was whether such injunction should be granted or refused. Act No. 29 of 1924, § 2.
"It is true that a suspensive appeal cannot be applied for as a matter of right from an order granting or refusing a preliminary injunction. Act No. 29 of 1924, § 5.
"But, in the case before us, respondent judge has not only refusel to grant a preliminary injunction, but has passed also upon the merits of the case, by decreeing the nullity of the sale from defendants to relator of the property herein seized by the plaintiff.
"Necessarily, this is a final judgment from which relator has the right to prosecute a suspensive appeal to this court. C. P. arts. 539, 565."
It is well settled in our jurisprudence that Section 5 of Act No. 29 of 1924 is an exceptional instance where a suspensive appeal is not allowed but it has reference to interlocutory decrees pertaining to temporary restraining orders and preliminary injunctions but cannot be extended to apply to a suspensive appeal prosecuted expressly from a final decree of the court dismissing the plaintiff's suit and finally rejecting the plaintiff's demands upon the merits. Young et al. v. Village of Bossier City,
The fact that the suspensive appeal in this case would not have the legal effect of suspending any action taken by the district judge for the reason that the plaintiffs' demands were rejected in toto is not a legal reason for denying them a suspensive appeal as a matter of right. This was pointed out in the case of Snowden v. Red River Bayou Des Glaises Levee Drainage Dist., supra [
"While the suspensive appeal, in this case, may not be of any great benefit to plaintiffs, yet, as the law allows it, it should not be dismissed."
For the reasons assigned, the motions to dismiss the appeals are denied.
On Motions to Dismiss Appeals.
Dissenting Opinion
So far as the plaintiff in any case is entitled to a devolutive appeal from a judgment dismissing his suit at its inception, his appeal should not be dismissed on the ground merely that he only asked for and obtained an order for a so-called suspensive appeal. When a litigant asks for and obtains an order for a suspensive appeal in a case where he is entitled to only a devolutive appeal, his appeal should not be *132 dismissed merely because of his calling it a suspensive appeal, but should be recognized as a devolutive appeal only.
I respectfully submit that the prevailing opinion in this case is wrong in characterizing the plaintiffs' appeal as a suspensive appeal, and is in direct conflict with the decisions cited to support it. I refer particularly to the very recent and very similar cases entitled, respectively, Brock v. Police Jury of Rapides Parish,
"The statute [Section 5 of Act 29 of 1924] 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 *133 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 *134 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. * * *
"`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,
And now I quote from the opinion written by Justice Odom in Waggoner v. Grant Parish Police Jury [
"But it is suggested that relators were protected by the suspensive appeal. The answer is that, under the law, they were not entitled to a suspensive appeal from the order refusing the preliminary writ of injunction and dismissing the rule nisi. And, even if relators intended to take, and the judge intended to grant, a suspensive appeal from that order, such appeal would *137
have no effect under the law. A district judge cannot confer upon a litigant a right which the law specifically withholds."
The appeal in the present case should not be dismissed but should be recognized only as a devolutive appeal from the judgment dismissing the suit.