Doullut v. Rush

80 So. 665 | La. | 1917

Opinion on the Merits

On the Merits.

O’NIELL, J.

[2] The issues presented in this appeal were considered and disposed of when the case was before us on a writ of certiorari. See Doullut et al. v. Rush et al., In re Doullut et al., 142 La. 443, 77 South. 110, for a complete statement of the facts and issues in the case. The decree then rendered merely denied the defendants a suspensive appeal and ordered execution of the judgment appealed from. Dut the question on which the decision turned was whether the contract sued on was a lease, as contended by plaintiffs, or a sale, as contended by defendants. We decided that it was a contract of lease, and that is the only question on which we are required to render judgment now, on the merits of the case. The judgment which we have already given on that question is the settled law of the case. We would now affirm the judgment appealed from, however, for the reasons given in the certiorari proceedings, even if we were not committed to that opinion.

For the reasons given in the case referred to, the judgment is affirmed.

DAWKINS, J., takes no part. '

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Lead Opinion

On Application for Rehearing of Motion to Dismiss Appeal.

O’NIEDL, J.

[1] We discover that the motion filed in this case, to dismiss the appeal, is based upon grounds that are not at all appropriate to the present appeal, but are appropriate to the appeal in the case of the same title, bearing the number 22720 of the docket of this court. 142 La. 462, 77 South. 117. And we observe that the motion to dismiss the appeal in the case No. 22720 is based upon grounds that are not appropriate to that case, but are appropriate to the present appeal. We assume that the motions were placed in the records of the cases to which they were appropriate, respectively, and not in the records bearing the numbers indorsed on the motions, respectively. Each motion, being appropriate to the case in which it was found, was considered and disposed of as if it had been filed in that case, without observing that each motion bore a number of a case to which it was not appropriate.

The motion which, in its title and in the indorsement, bears the number of the present appeal, is therefore untenable and must be overruled. The appellants’ right to a suspensive appeal was disposed of adversely to them by the decision rendered in the case No. 22689, M. P. Doullut et al. v. Mary Rush et al., In re M. P. Doullut et al., Applying for Certiorari, etc., 142 La. 443, 77 South. 110, in which a rehearing was denied to-day.

The decree dismissing the present appeal is annulled, and the motion to dismiss the appeal is overruled.