137 So. 201 | La. | 1925
At the time of the granting of said "temporary injunction," the district judge also issued a rule directing defendants to show cause on February 24, 1925, "why a permanent injunction should not issue as prayed for, or the temporary injunction should not be perpetuated." In answer to the rule, defendants filed a motion to dissolve the injunction and an exception attacking the constitutionality of Conservation Act
After hearing on the rule, the matter was taken under advisement by the court until March, 5, 1925, and "the preliminary writ," after being modified so as to permit the two wells to be opened under the supervision and direction of the Commissioner of Conservation, was continued in force until March 5, 1925. On said date, defendants filed an answer. At the hearing on March 5, 1925, the exception to the constitutionality of Act
On March 27, 1925, plaintiff, with express reservation of all rights under the order of *423
appeal granted March 16, 1925, applied to the district judge for a supplemental order granting him as Conservation Commissioner appeals to this court devolutive and suspensive, without bond, as provided by law under Act
The order was granted on said date as prayed for, and the appeal was made returnable on April 13, 1925. On March 31, 1925, the original return day, plaintiff obtained an extension from this court until April 7, 1925, in order to enable the clerk of the lower court to complete and file the transcript, which was lodged here April 6, 1925.
Defendant has moved to dismiss the appeal, or, in the alternative, prays that the suspensive appeal be dismissed, for the following reasons:
"1st. That no appeal bond, suspensive or devolutive, has been furnished and that appellant is not exempted by law from furnishing bond.
"2nd. That although denominated a preliminary injunction, the original order in this case was issued without notice and without a hearing, and was in fact and in law a restraining order, and could not be appealed from after hearing and dismissal thereof.
"3rd. That orders of appeal were asked for and granted on the day judgment was entered, namely March 16th, 1925; that the order of appeal provided for a $25,000 bond for suspensive appeal and gave the return day as March 31st, 1925; that on March 27th, 1925, appellant prayed for and was granted new orders of appeal, without bond and the return day extended; mover avers that the lower court was without jurisdiction to grant orders of appeal more than ten days after entry of the order or decree; that, therefore, this appeal should be dismissed. *424
"4th. In the alternative, mover avers that no suspensive appeal is permitted appellant under the law pertaining to injunctions, particularly Act
(1) The case has been tried upon the merits after answer filed, and after evidence adduced, and a final judgment has been rendered dissolving "the preliminary injunction," and dismissing as of nonsuit defendants' reconventional demand for damages for attorney's fees for the dissolution of the writ, and with special reservation to defendants of the right to sue plaintiff for all damages sustained by the wrongful issuance of the injunction in this case.
Section 5 of Act
In Young et al. v. Village of Bossier City,
A suspensive appeal, therefore, lies of right from the final judgment dissolving the injunction in this case.
(2) The injunction proceeding is brought by the Commissioner of the Department of Conservation, who is charged with the special duty of enforcing the laws of the state enacted for the protection and conservation of its natural resources.
The Department of Conservation is exempt from furnishing bonds for appeals under the express provisions of Act
The appeal in this case is not prosecuted by W.J. Everett in his individual capacity, but as Commissioner, or executive officer, of the Department of Conservation. It is therefore an appeal by a state department or public commission, and may be taken without the necessity of giving bond.
Martin v. Board of Fire Commissioners,
(3) The district judge in requiring bond for appeal in this case evidently acted through inadvertence, and simply went beyond the requirements of the law. If the bonds had been furnished by plaintiff commission, it would not have had the effect of waiving the benefit of appeal without bond conferred by the statute. Luchini v. Police Jury,
In Board of Commissioners v. Howard Land Timber Co.,
"That portion of plaintiff's motion for an appeal which asked that it be allowed to furnish an appeal bond, and that portion of the court's order directing plaintiff to furnish bond, are without effect. They were unauthorized conditions, which could not be enforced in a suit on the bond. Slocomb v. Robert,
It is true that the first appeal in the case had been perfected on the granting of the order of the appeal March 16, 1925, and the fixing of the return day March 31, 1925. If plaintiff had failed to file the transcript in this court on the return day, or within three days thereafter, it would have abandoned its appeal, in the absence of an application for an order of extension of time in which to file the transcript; but plaintiff on March 31, 1925, obtained such order from this court extending the return day to April 7th, and the transcript was filed here April 6th, within the limit of the time as extended.
The appeal was perfected and intact on March 27, 1925, when the supplemental order was procured by plaintiff, and the extension of the return day, which was obtained seasonably, was all that was required. C.P. arts. 575, 578.
Such supplemental order was an unnecessary precaution, as the unauthorized conditions *427 in the original order requiring bond for appeal were without effect.
The motion to dismiss is therefore overruled.