103 So. 245 | La. | 1921
Lead Opinion
It is therefore prayed that the bank be enjoined from making such payments; that it and the named defendants be cited, and, after hearing, that there be judgment decreeing the contracts in question of no effect, and perpetuating the writ. The injunction was issued accordingly, but the defendants (Ham Seymour) filed an exception of "no cause of action" directed both against the attack upon the contracts and the prayer for the injunction, which exception was overruled as to said attack, but sustained as to the prayer for the injunction, and the writ was dissolved, from which last-mentioned ruling plaintiff was allowed this appeal; and defendants now move to dismiss the same, on the ground that the trial court was without jurisdiction to issue the injunction, and that the effect of the granting of the appeal is to reinstate it.
The generally accepted rule, in this state, is that a preliminary injunction should not be dissolved when its dissolution may work irreparable injury, and hence if that rule were always observed, a suspensive appeal would never lie from a judgment dissolving an injunction, prior to a hearing on the merits, since such judgment is interlocutory, and appeals are allowed from interlocutory judgment only when they may work irreparable injury. C.P. 566; Schmidt v. Foucher, 37 La. Ann. 174; State ex rel. Sterken v. Judge, 37 La. Ann. 825.
In this instance it is not alleged in the motion to dismiss, nor is it argued in the brief filed in support of that motion, that the loss which plaintiff may sustain by the dissolution of the injunction is reparable (or that it may not be irreparable). The sole ground upon which the motion is based is that the *874 injunction, as issued, was and is void, because the court a qua lacked the jurisdictional authority to issue it and equally lacked the authority to maintain it, by allowing a suspensive appeal from the judgment of dissolution. But whether that ground is well taken is a justiciable question, which is subject to review on appeal, and is the only question which this appeal brings up, since it was the only question decided by the judgment appealed from.
The ground upon which the jurisdiction of the trial court is denied is that the issuance of injunctions and other specified writs is prohibited by section 5242 of the U.S. Revised Statutes (U.S. Compiled Statutes, § 9834, p. 1599). In Pacific Bank of Boston v. George Mixter,
In Earle v. Pennsylvania,
The motion to dismiss is therefore
Denied.
Addendum
This case involves the same legal question as the one in case No. 24533, Drewes Co. against the same defendants, this day decided (ante, p. 861,
For the reasons assigned in the opinion in said cause, the judgment appealed from herein is reversed, the motion to dissolve the injunction is overruled, and the case is remanded to the civil district court to be proceeded with according to law. The appellee to pay costs of this appeal.
ROGERS, J., recused.