95 So. 862 | La. | 1923
Relator filed a suit in the district court for the parish of Red River, in which he alleged that the property tax payers of road district No. 1 of that parish .authorized the policy jury, at an election; to issue negotiable bonds in the sum-of $150,000 to be used to construct a permanent hard •surfaced road from the Caddo parish line to the Natchitoches parish line, and a branch road from Armistead to the west bank of Red River, near Coushatta. He also alleged in that petition tHat the police jury and the Louisiana highway commission were about to withdraw from the People’s Bank of ■Coushatta the proceeds of the bonds, thus voted and authorized, for the purpose of building a' road only 15 miles in length, leaving, without the road, the south half of ward 6 and all of ward 5, in contravention of the ordinance of the police jury calling the election. He further alleged that he was a property tax payer and resident of the district, and resided in that part of it, constituting ward 5 of the parish^ and prayed that a preliminary writ of injunction issue prohibiting the police jury and the highway eonimission from withdrawing and spending the proceeds of the bonds for any other purpose than to build the entire road, and that the injunction be perpetuated.
An exception was filed to plaintiff’s suit, setting forth that the petition showed no cause of action; and from a judgment maintaining that exception plaintiff appealed to this court. Here the judgment was reversed, and the case remanded to be proceeded with according to law. O’Bierne v. Police Jury, 151 La. 1088, 92 South. 709.
It appears that the case, after it was remanded, was tried in the lower cou^t, and that, while the trial judge had it under advisement, 'application was made to him by the pplice jury and the Louisiana highway commission to dissolve the injunction on bond. The application was resisted by relat- or, but was granted by the judge a quo, and the bond fixed at $5,000. Relator alleges that he then applied for a suspensive appeal from the judgment permitting the dissolution of the writ on bond, which was refused, whereupon he gave notice to the trial judge and the opposing litigants of his intention to apply for a writ of mandamus to compel the granting of the appeal. He then petitioned this court for a writ of mandamus to accomplish that purpose, and for a writ of prohibition to restrain defendants from doing anything in contravention of the writ of injunction. He bases his right to an appeal on the ground that, unless the appeal be granted, he will suffer irreparable injury as a result-of the judgment of the lower court," which judgment, he alleges,-is contrary to law.
The trial judge has filed in this court an exception to plaintiff’s application for the writs asked for herein, setting forth that no petition was addressed to him for a suspensive appeal; that he was only asked whether, he would grant such an appeal, and replied that, if he did grant it, the effect
The police jury, without excepting, have also filed an answer to the application for the writs herein, in which they make substantially the same averments as those made by the respondent judge, and also that it is the intention of the Louisiana highway commissioh to construct the entire road.
The exception filed by the respondent judge, in our view, should be overruled. It is true that no formal petition was presented to him praying for an appeal, and it is also true that no motion for one was made in open court, but‘the written notice served on him, of the intention to apply for a writ of mandamus to compel the granting of the appeal, was a sufficient demand that it be granted. Had the judge granted’ the appeal, when the notice was served on him, we entertain no doubt that the order granting it would have been valid.
The next question to be determined is whether an appeal lies from the judgment dissolving the injunction on bond. Such a judgment is an interlocutory one. An appeal lies from an interlocutory judgment whenever it may work the one aggrieved irreparable injury; otherwise, such a judgment is not appealable. Code of Practice, art. 566; Puckette v. Hicks, Judge, 39 La. Ann. 901, 2 South. 801, 4 Am. St. Rep. 242. As to whether an injunction may be dissolved on bond depends upon whether the act prohibited by it is such a one as may work an irreparable injury to the one obtaining the writ. If it is not such an act, then the injunction may be thus dissolved, otherwise not. Code of Practice, art. 307. If the “irreparable injury is one for which the party cannot be compensated adequately in damages, or for which the damages cannot be measured by a pecuniary standard,” then the injury is held to be irreparable in the sense of article 307 of the Code of Practice. City of Lake Charles v. Lake Charles Railway, L. & W. Co., 144 La. 217, 80 South. 260. Likewise if the act prohibited by the writ is one contrary to public policy. Goldstein v. Harris, 120 La. 744, 45 South. 593 ; City of New Orleans v. Becker, 3l La. Ann. 644 ; City of Lake Charles v. Lake Charles Railway, L. & W. Co., 144 La. 217, 80 South. 260.
Prom the above, it appears that the test- as to whether the interlocutory judgment rendered is appealable necessarily involves the question as to whether the act prohibited by the writ is such as may work plaintiff irreparable injury, for, if it is, then it follows that the judgment dissolving the. injunction may work such an injury.
For the purpose of determining that question the allegations of the -petition for the injunction must be accepted as true. Levine v. Mitchell. 34 La. Ann. 1181 ; Puckette v. Hicks, Judge, 39 La. Ann. 901, 2 South. 801, 4 Am. St. Rep. 242. From the allegations of the petition it appears that the police jury and the highway commission are about to withdraw from the People’s Bank and use the proceeds of the bonds to build only a part of the' road, to construct the whole of which the bonds were voted, leaving a large part of it unbuilt, including that section of
The contention of the defense, however, is that the entire road is to be built, and that plans have been made accordingly. This, however, is in contradiction of the allegations of plaintiff’s petition, and is a question to be determined in deciding the merits of the case. As heretofore stated, the allegations of the petition must be accepted as true in determining the questions as to the right to dissolve the injunction on bond and as to the right of appeal.
It is also contended, especially by the trial judge, that the petition for injunction does not in so many words allege that the injury, which would result from the act concerning which complaint is made, would be irreparable. While this is true, yet the petition alleges the facts which show that the injüry, which would result to relator, would be irreparable, and that is sufficient.
For the above reasons we conclude that the respondent judge erred in dissolving the injunction on bond, and hence that the suspensive appeal sought should be granted unless the judge reinstates the preliminary injunction.
For the reasons assigned, it is ordered, adjudged, and decreed that a peremptory writ of mandamus issue, directing the respondent judge to grant relator a suspensive appeal from said judgment or else maintain the injunction in force until a final judgment is rendered in the case. It is further ordered that the, police jury pay the costs of this application.
