*1 782 781 Memphis, Mississippi Ten- south of River
nessee, exempt. are tax merit to discern
We unable other
in this contention. Aside from con
siderations, plain Fourteenth it is that the Constitution,
Amendment of the Federal deprive
declaring no state shall
person life, liberty without any person process deny law
due nor jurisdiction equal protection
within its laws, utterly application without state, political of a subdivisions person
cannot within be viewed as a
purview provision. of the constitutional See City Pensacola,
Shelby Fla. v. Riley Stack, 53; Cal.App.
151 So. v. County Angeles P.2d 110 and Los Court, Superior 522, 18 P.2d
v. 112. 128 Cal. appealed from is affirmed.
OLIPHINT
No. 39209.
May 28, 1951. 78i *2 protested
all times accuracy, their both to the included and the value thereof, being his contention part, community assets, con- for the most corporations sist of stock in various manages either interested or Wilkinson, Hugh Coe and M. A. Miles controls, plaintiff, in whereas the in- Orleans, Harry Nowalsky, all of New behalf, ignores ventories made on her plaintiff-appellant. corporate appraises entities assets Rosen, Wolff, Hopkins & Kammer, companies belonging of these Burke, defendant-appel- Orleans, New community. lee. state, plaintiff, in an With matters McCALEB, Justice. up winding endeavor about bring affairs, settlement of suit May On filed 2nd brought pro- present action in against Parish for defendant in St. Charles rule, ceedings dis- sought, wherein she ob- separation and board and from bed closure the communi- defendant of all of injunction restraining him from tained an *3 ty Spe- assets and an therefor. accounting the disposing or selling, encumbering plaintiff cifically, charged that defendant 8th community property. On June control possession under his has or separation prayed for granted was a she concealed; has community assets which he later, July 25th year on and more a than property held in that some of this ren- final divorce was judgment a defendant corporations name of of which application. on dered her control; he should be has exclusive that re- plain- proceedings, In the course of quired property, to- to account for all such pendente alimony lite and tiff awarded was property transferred gether with other in, alimony permanent her granted was defraud an effort to him to others in Inventories were judgment of divorce. its after disso- community before and plaintiff, on behalf also taken for .injunction, lution issuance of and the court, of various under orders why the ef- that, finally, cause he show community. belonging allegedly .to inventories taken listed in fects revealed assets in inventories These Jef- adjudged not be proceedings these should $20,425.25; appraised at Parish ferson conjugal partnership. belong to the $56,310.89; in Orleans Parish Charles St. prayer pe- $55,564.75 and in Caddo Parish with In accordance Parish issued, present coupled tition, not to show cause Defendant was when rule $267,250. a subpoena tecum, or- made he writ duces were at inventories has with a issues, dering hearing foregoing the defendant various After a on the produce to' books, records, ledger cancelled at ad- accounts, evidence was which considerable checks, documents, duced, en- pertaining etc. the court later1 some months phases personal judgment plain- also tered dismissing of his business and the rule at ' corporations allegedly appealed. tiff’s books of several cost. Plaintiff has under his dominion control. argument During matter submission, the date one of its hearing, the Jus appointed day
On the
question
tices raised the
as whether
appeared
his return to
and filed
judgment
appealable,2 it being suggested
answer,
denied
lengthy
he
a
rule.
perhaps
interlocutory
that it
decree
an
im-
plaintiff’s
and other
charges of fraud
irreparable injury
which
since
did
work
practices, setting
that
forth
putations,of ill
respective rights
parties
would
proceedings
during the
all times
he had at
judg
appeal
be
reviewable on an
cooperate
endeavored to
community
ment ordering partition of the
estate;
community
her ascertainment
Con
be
ultimately
which must
obtained.
with full
counsel
furnished her
he had
that
suggestion,
formable to this
property standing in his
of all
statements
separate
covering
have
briefs
furnished
any interest and
he
had
name
appealability
judgment,
defend
willing to
he
able and
presently
be
that the
should
maintaining
ant
And,
complete accounting.
at-
furnish a
dismissed.
purported full state-
his answer a
taching to
and liabilities
assets
After
careful examination of the
time
(the
of its dissolu-
8th
June
pertinent authorities,
opinion that
it is our
separation from bed
by judgment of
tion
plaintiff’s
judgment
rejecting
herein
(approxi-
July 31st 1947
board) as of
an
rule for
ascertainment
the rule for
mately
before
a month or two
complete accounting
assets and for
of all
tried),
prayed that
accounting was
property,
including
allegedly con
assets
sufficient;
good and
be deemed
his return
defendant,
cealed
a final
adjudged
has,
purposes,
all intents and
set forth
property consisted of those assets
controversy
disposed of the main
between
attached
his return and
the schedule
*4
parties.
judgment
of
After the
divorce
hence dismissed
costs.
he be
that
party
by
to an
need not be raised
September 8th,
hearing was on
The
1.
appellee
aon
motion
dismiss and that
judgment
was rendered
1947
may take notice
the court
the matter
of
signed May 24th
on
1948.
proprio
ex
v.
Barbe,
motu. Reeves
200
proper.
1073,
This was
It has been held
La.
9
426
2.
So.2d
and Cotton v.
question
legal right
Wright,
169,
of the
214
of a
La.
ing furnished judgment is maintaining that the in- cordingly fixed the status cite, terlocutory, counsel for in defendant’s schedule as contained others,-the Benham, Ziegler among case of also, infer- 'by has true Mouledoux, 711, & v. 175 La. 144 So. Co. ence, approved liabilities as 428,3 judgment it was or- where held shown defendant in account. interlocutory an dering accounting is appealable not is, cree is does not course, judgment is It true that decision, irreparable injury. work judgment But not a final in the sense that it order, are not au- judgment and others same the last to be rendered the case. exactly proposition judg- for the that the Therefore, thority it cannot be to fit said appealed from in case bar judg- at within the of definitive definition here, interlocutory for, not Article 539 the Code ments contained — ap- issuance hand, appealing from the court’s On the other it is of Practice. account. On the con- parent regarded an in- rule for defendant to that it cannot trary, says that he the defendant has ac- judgment, Article terlocutory as defined Practice, court has entered counted and trial the Code since it trench- effect, approving, in the account judgment case upon merits of the and does es he has rendered. Such a pronounce judgment matters in which preliminary merely Dimitry, 875, that, 164 La. Garland v. in this decision 3. be noted is to govern v. ap Feitel, 718, which we think 169 La. So. and also Feitel pealability commented the case 125 So. ruling upon distinguished at bar. Richardson, Cary 35 La.Ann. *5 stated, New Orleans to handle it dis- Richards of patently for, final as above personal the case finances and affairs. poses controversy of real of settlement partition and renders the and by is admitted the defendant that he formality. estate a mere community separate owned the time property no at of the suit herein and that all of the assets primarily The of the case involve merits standing in com- belong his name standing in property of certain the status munity plaintiff which existed and between corporations over the name of community consist, himself. The assets by complete virtue of control fendant has great measure, corporations of stocks in voting of ownership device stock or the wholly controlled which are either owned or employed admittedly he trusts which has by assets, The other over which defendant. question of advantage. There is also contest, minority there no stock by debts, as shown whether Theatres, holdings in Paramount-Richards accounting, are correct. in his defendant Bank, Inc., Progressive Industrial certain court, the district However, of judge as Parish, real estate located in rule, Jefferson plaintiff’s did not dismissing merely royalty interests, automobiles, furniture account rendered approve the formally miscellaneous movables. him, a remand defendant, prayed for as required bewill portion of the case of this gravamen plaintiff’s The charges is from the before say, record as we cannot personal that defendant conducts his busi- by defend- us, debts listed that all of the operations through corpora- ness two proper. liabilities are ant tions, viz., “My Farms, Own Inc.” and Corporation”; “Saenger Investment case are facts of the pertinent companies these are used to conceal his defendant were Plaintiff follows: that, by employment true worth and wife, second She was his in 1925. married corporate voting manipula- trusts and book three children at with widower tions, effectively deprived he has her of marriage. Defendant was time of the community rights vested in violation of law brothers, Saenger protege Julian injunction restraining him from Shreveport, Saenger of who were A. and D. By far, disposing assets. drug the theatre and business prominent plaintiff’s charges most serious has many years. He for has been State this Saenger reference Investment Cor- businesses, particu- connected initially poration, which will we consider. enterprises, long for a with theatrical larly purchased Secretary presently is Assistant at In a sale time Theatres, States, United by the conducted under Paramount-Richards Inc. distraint, Theatres, certain property for and United Inc. In addition warrant be- thereto, employed Saenger Mr. to A. D. longing he is E. $3750. V. Much shares of she .knew transaction but her tes- of this consisted but, timony impressive. point *6 Saenger community rights. owned the as former value the oper- Shreveport and the latter Theatre in But persist her counsel nevertheless that Upon stores. drug ated a chain of the donation was void under Article Saenger, assets of Inc. acquisition of the Code, provides: of the Company, defend- Investment and Saranac “The husband companies is the head master of merged the and formed ant partnership gains; or Corporation. Saenger Investment Simul- effects, disposes he administers its of the taneously, he Mrs. donated to Bertha they produce, revenues which Saenger, A. D. the wife of one- Saenger, by title, alienate them an onerous without Saenger stock of Investment half of the permission the consent and of his wife. vigorously Corporation. Plaintiff attacks violative Article this transfer conveyance “He make vivos, can no inter Civil Code. 2404 of the gratuitous title, by a immovables whole, community, nor of the or of a complaint is tenable This as the movables, quota of it be unless for the that warrants conclusion evidence the children of establishment good (probably made in faith was donation gratuitous marriage. A within title knowledge plaintiff’s with and consent contemplation article of this embraces all injure plaintiff’s rights design to not with a direct, no there is material titles wherein community). Defendant ex to advantage to the donor. practi plains Saenger that Mr. A. had D. that, by cally that he felt raised him and may dispose “Nevertheless he the mov- gratuitous particular able effects one-half of the turning over stock title, persons. benefit Corporation to Mrs. Saenger Investment place in Mr. (he could not Saenger proved if it should that “But have as the stock would Saenger’s name property, the common has sold husband or subject lien of the Federal a tax to been disposed fraud, otherwise same repaying, in only Government) he was wife, may have her she injure his action Saengers’ benefac measure, husband, some sup- of her against the heirs states that the prop- He further one-half of the port him. her claim tions satisfactorily proving plaintiff’s her knowledge erty, with made was gift weakly denies fraud”. that Plaintiff consent. “percentage”- Article “fraction” such foregoing It is asserted with or J/4o mov- reprobates valuable and not a the donation of whole of the movables e., movables, ables, to Mrs. i. certain specific such as the of stock movable or shares Saenger case recent in this and our shares of stock. 212 La. Geagan, in Succession of
cision Saenger acquisition In- after Soon authority for the is cited as So.2d Corporation, undertook vestment contention. voting agreements and had make trust are mistaken We think counsel appoint- Saenger D. and himself a Mr. A. conception article and their of the codal Saenger voting Mr. trustees. ed The article ruling Geagan case. per payroll at placed on month $150 husband, permits during specifically management control and but marriage, convey effects movable corporation was retained defendant. only It the immovables gratuitous title. that, Septem- between Plaintiff contends quota of the whole or a movables 1946, defendant, 1940 and ber June prohibited giving. he is from community, permitted intent to defraud the gratui- make right husband Saenger Saenger to draw Mr. In- prop- dispositions of movable tous valuable Corporation $22,000 over vestment for his *7 opined, erty in Succession we that living expenses written which was off the incompatible with supra, was Geagan, proven “bad books as debts”. While it was times when mov- justice in these common $22,000 charged against that over Mrs. great property often constitutes able Saenger’s was deducted as bad account community wealth and we bulk of the Saenger debts on the income tax returns in- Legislature should that suggested Corporation, plaintiff Investment failed to with a view cor- vestigate the matter sustain her contention that these debts were nothing But has recting condition. expensés. Saenger’s living incurred for the Legislature and the law by the done been subject only testimony The on this was quoted. as above remains given by defendant. He states that he and thought given have also to Saenger We Mr. were on endorsers the notes the donation Corporation as to question Saenger to whether Investment quota Saenger gift $44,000; constituted a of a over the Hibernia Mrs. that National movables, prohibited by Bank, which is creditors, representing was article, concluded that payment but have pressing and that an codal arrange- “Quota” (see means whereby not. Webster’s was made Saenger-Ehrlich does Dictionary, Ed.) Inc., Enterprises, 2nd International lessee of New the theatre part or share”. used proportional by Saenger As “A owned Investment Corporation, Code, synonomous we pay think it would monthly $600 $1000 rent entered in- Corporation (3) Na- vestment Saenger Hibernia due Investment to for the voting agreement obligation; a similar trust to discharge tional Bank Farms, placing Inc.” “My stock of gradually settled Own was that the indebtedness daughter manner; being in absolute that, thus himself and was another in this as it corporation. the witness control On liquidated, of that personal defend- accounts stand, explains was Saenger Saenger Investment $5000 ant with Cor- with Corporation Saenger Investment were each debited transferred to $300 poration mortgage note per pay $4500 month that the amounts so debited to and, when falling bad time against Saenger charged off as due about were com- corporation. why pay asked had this out debts of the he to the com- munity funds, he declares see these book difficult how to munity Saenger to Investment was indebted manipulations injured the entries and com- sum, Corporation large the amount not for a Indeed, easy munity it is not estate. voting Insofar as mentioned. Saenger defendant, why (or understand concerned, he arrangements trust matter) for that was debtor frankly was deliberate that this admits merely Corporation Saenger Investment having prevent from move because an endorser on the note he was “My either management voice corporation’s obligation. And it for the Farms, “Saenger Investment Own Inc.” or why his is to be wondered account should Corporation’’’maintaining that, long as corporation paid be debited when the its community, he he master of the could was But, all, corpora- obligation. own after pleased. do as he tion saved the taxes the deduction of only thing neglected bad debt and that defendant so-called this inured community, consider when he initiated these acts although the benefit that, right while had to admin- charge against he the debit defendant was during detrimental. wished ister the he marriage, him the law forbade do separation The suit for a filed anything detrimental to his wife’s interest May day before, 2nd 1944. On defend- a time when was aware of the im- at ant, knowledge of the im- obviously And, as divorce suit. these acts pending action, (1) withdrew pending $5000 *8 performed deliberate intent were personal his account in Hibernia the Bank community interest, plaintiffs’ to diminish 'deposited money of account regarded in fraud as of her are to Corporation, Saenger (2) Investment en- rights. voting agreement tered into a new trust daughters separation suit, Subsequent which he and one of his were to voting voting named Saenger trustees In- fendant created another trust (cid:127) attorney as But the that hidden from which constituted his one fact was he counsel, daughters by plaintiff’s pages voting trustee his until torn for three Thereafter, corporation’s he marriage. his first had books were later delivered them, attorney arrange, corporation’s as trustee and for the funds to was that the purchase daughters, being payment purchase account of the of his were used Saenger’s Saenger price. Mrs. stock in Investment this information concealment Corporation, purchase price being pro- to does not lend credence defendant’s $200 years. period Pay- view, of 20 per good for a testations of faith. our month purchase price corporation’s money were pay this use of the to ments on price acquired daughters out of for being now taken the assets the stock his Corporation, by was a violation Saenger Investment ac- defendant of the court attorney, trustee, prohibiting disposing order him from count defendant’s that, community property for the reason being each month in the sum of debited trial, actually, community one-half of At the time of the had owned $5200 $200. this, already purpose. for such as been diverted funds. In those circumstances corporate will look behind defendant, this, per- according All to reality of the transaction. veil into the fectly However, proper legal. he when supra Geagan, and Wainer v. Succession requested plaintiff for to was counsel Wainer, La. 829. De- So.2d Saenger Investment turn over the books corporation full control of fendant had inspection, Corporation for he tore from that, say and will for him not do to pages contained the en- the books corporate using (half funds referring purchase of Mrs. tries belonged community) pay for the attorney, his as trustee Saenger’s stock purchase attorney made his on behalf of says He his children. that he was well for daughters, his he was well rights within his rights doing within this because the his .in the interest of the was because already had been dissolved corporation that of a stockholder of he that transactions had made for the corporate assets. not as owner of the daughters benefit of his were of no concern Farms, “My organized Inc.” was Own he had plaintiff. And,..stating that noth- purpose, according 1936 for the defend- conceal, attorney that ing shows ant, owning shipping 'horses and them to plaintiff purchase that wrote counsel explains He horse shows. Saenger’s effected; Mrs. stock was corporation fancier and horse “arms-length” it was an transaction protection actually against formed for employed which could be as a basis for establishing liability the value damages individual resulting in- Saenger terest Investment stock. the shipment of horses. Ten shares of *9 defendant, Corporation list issued, Saenger one and eight to Investment stock were in personal property standing in blank real plaintiff (which and she endorsed community companies one the other to the name of those him) and returned improp- After its daughters property. of a this was his donation. We believe that Farms, Inc. ac- incorporation, My corporations Own er because have title quired legal a Parish farm in St. Charles entities assets are equipment. dissoluble, This various are the man- livestock not save in defendant; he by provided operated by farm ner has been law. While this and, strange- occupies disregard corporate purposes it also as a residence fiction for corporation, ly enough, requiring it from the of leases defendant to account says, corporate paying, community, rental. he a substantial it cannot divest the by paid, it is shareholders, this rent and how rights amount of titles or the of when entry, brought shareholders, out cash or book is not mere other corporations by evidence. defendant, litigant parties not than are proceeding. claims donation
Plaintiff
that the
Farms,
My
Own
the one share of stock
found that the
as we have
Inasmuch
Inc.,
viola
by
daughter is
defendant to his
formed,
corporations
legally
two
Civil Code. We
2404 of the
tive Article
by
represented
community
interest
do not think so. This donation
My
companies,
Own
stock
90%
Saenger
gift to-Mrs.
category as the
same
Farms,
Saenger Invest
Inc. and
50%
Saenger Invest
stock of
of one-half of the
hand, we
other
Corporation. On the
ment
is,
gift
a
it is not
Corporation—that
acts, immedi
his
by
reason
deduce
and, therefore, not
quota
of the movables
the institution
ately
since
prior to and
Furthermore,
2404.
of Article
defiance
issuance
and the
proceedings
separation
made at
when
time
the donation
since
has intention
injunction, defendant
good
apparently on
terms
were
disturbed, damaged and diminished
ally
and consent
knowledge
with the
detriment
plaintiff’s
community estate to
been made
said to have
plaintiff,
cannot be
liable therefor.
has become
and that
defrauding
purpose of
for the
he is indebted
Specifically,
find that
we
community rights.
her
plaintiff of
withdrawn
for the
$5000
cause, plaintiff
personal bank account on
to show
In the rule
his
from
him
prop
among
things, that the
separation
prayed,
other
institution of
day
before
her
inventories taken
on the
erties listed
the sums with
for one-half of
also
suit and
community property.
Corpora
adjudged
Saenger
be
Investment
behalf
drawn
corpor
for his
ignored
attorney,
as trustee
have
inventories
These
tion
paid on ac-
have been
Farms,
daughters, which
entities, My
Inc. and
Own
ate
purchase
selling
stock of
or encumbering
Mrs.
assets
count
addition,
complete
effected,
are re-
Saenger.
partition
Bertha
we
until
she
manding
purpose
of a fur-
ordering
this case
caused to be issued rule
scrutiny
why
fendant
investigation
ther
and careful
show
he should
cause
(submitted
render
accounting
debts of the
assets
*10
and,
community
to his
allegedly
defendant in the
attached
schedule
him
concealed
further, why
answer)
and liabilities
properties
and also the credits
in-
listed
on
defendant,
closely
others
connected ventories
and
taken on her
not be
behalf should
him,
adjudged'
appearing on
Saen-
as belonging
community.
the books of
to the
Corporation
My
and
Own
ger Investment
Answering
rule,
denied
defendant
Farms,
any of
credits or lia-
Inc.
If
these
any
that he had
prop-
community
concealed
spurious
to be
or to be
bilities are shown
erty. Additionally,
specifically
chal-
corpora-
loans
made
result
lenged the correctness of the inventories
diminishing
purpose
for
tions
plaintiff’s
taken
affirmatively
on
behalf and
interest
value of the
“* * *(cid:127)
averred
is
that there
attached
corporations, the defend-
two
stock
hereto,
1’,
marked ‘Schedule
an exhibit
trial
held accountable and the
ant is to be
showing all
community property
of the
personally
him
instructed to find
judge is
which existed at
date of the
dissolution
After a
therefor.
liable
said
of the
the status of
and
complete
of all
ascertainment
as-
full and
days
within a
few
liabilities,
community estate
sets and
answer;
filing of this
that said Schedule
partitioned and settled
accordance
be
respects.”
is true and
in all
Then
correct
with law.
*
“* *
prayed
this an-
that
appealed from is
therefore
good
and
be
swer
return
deemed
and
the trial
case remanded to
reversed and the
sufficient,
court,
consider-
and
after
proceedings consistent
court
further
evidence,
ex-
the law and
ing all of
expressed.
herein
with the views
any
defendant has not in
hold that
pressly
assigns
HAMITER,
writ-
J.,
and
dissents
attempted
any
to conceal
concealed or
wise
ten reasons.
community property;
that the com-
HAMITER,
(dissenting).
Justice
properties
munity property
of those
consists
judgment about
that the
my opinion
It is
hereto;
attached
set forth-
Schedule
unap-
complains
petition
plaintiff’s
and
dismissed
hence,
and,
without
we are
pealable kind
discharged.”
rule
appeal.
right to entertain
scheduled, hearing on plaintiff’s
a
rule
As
the divorce de-
plaintiff obtained
After
had; and
cause
thereafter the
show
enjoined defendant from to
cree, which also
such
following
or final
judgments
“Definitive
signed
rendered
court
controversy, be-
points
as decide all
judgment:
parties.
tween the
herein and
filed
show cause
“The rule
8th, 1947,
September
as have
judgments
are such
returnable
“Definitive
made
submitted,
tried,
up,
judicata.”
and the
of res
Article 539.
taken
force
adduced on
considering
evidence
after
jurisprudence interpreting
In our
rule,
has arrived
trial of said
appeared
among
articles there
conflict
relator has failed
that the
at the conclusion
Thus,
earlier decisions.
in 1883 it was held
any
competent
ma-
evidence
to establish
disposed definitely of
ruling
orally
day
found,
reasons this
terial
phase
controversy
was final
one
as.
assigned;
and,
phase
therefore, appealable.
to that
decreed, that
ordered, adjudged
“It
Judge
Eighth
ex
Ikerd
State
rel.
Dist..
hereby re-
and the same is
the said rule be
Court,
Later, during
35 La.Ann.
212.
aside,
called,
and set
amended [annulled]
case,
year,
same
another
view
contrary
costs.
together with
taken,
seems to have been
court hold
ing in effect
that a suit should not be
rendered, read,
signed in
“Judgment
appeal by fragments
heard on
unless the
day May, 1948.”
open
court on this 24th
*11
interlocutory
appealed
decree
from would
(Brackets ours.)
injury.
irreparable
rel.
State ex
cause
plaintiff is
judgment
is
from
Court,
Dist.
of Civil
35 La.
Judge
v.
Pflug
appealing.
now
Ann. 765.
Prac-
According
the Louisiana Code of
the court
in
Recognizing this conflict
tice:
Hollingsworth
Heirs v.
&
Bossier’s
Jack-
may
judgments
appeal
all final
“One
from
553,
222,
555,
221,
son,
41 So.
re-
117 La.
appeal is
m causes in which an
rendered
adopting
taken in the
byit
solved
view
law,
given
judgments have
such
whether
it
Pflug
Then
observed:
case.
parties,
hearing
after
been rendered
by the
usually
therefore
understand
“We
Article 565.
default.”
which,
judgment
judgment’
term ‘final
inter-
may
appeal from all
“One
likewise
previously
all the
not
disposing of
issues
'
judgment
locutory judgments, when such
by interlocutory
disposed
judgments,
irreparable
injury.”
may
an
cause him
judgment
court renders.
last
Article 566.
be,
so,
may
If
not
there
in
this be
case, many appeals as there are
given
“Interlocutory judgments do not decide
merits;
pre-
presented, and as the law author-
issues
pronounced on
on the
separate
actions in
pro-
cumulation
matters,
izes the
liminary
the course
(Code
148),
Prac. art.
demand
same
ceedings.” Article 538.
808
807
appeal
would work an
divided,
that to
with
disallow
single
infinitely
may
suit
be
irreparable injury.
at
pending,
divisions
subdivisions
time,
judg-
The
same
in different courts.
During
year in which the Wil-
the same
not dis-
under
does
consideration
now
liams decision was
rendered
pose
points
controversy be-
all
154,
Edenborn,
Mann v.
La.
168 So.
185
parties,
tween
nor
it cause
does
760,
upon
appeal
759,
pass
an
refused to
ir-
against
it was rendered
whom
interlocutory
from what was termed an
reparable injury, and,
of these
in neither
points
judgment,
all
it not
decisive of
respects,
by the
is its character affected
quoted
controversy.
the court
Therein
signature.
judge’s
fact that it bears the
539,
Articles 538
Code
Practice
reviewed,
interlocutory
appeal
definitive
“It can be
on the
from which define
may ultimately
judgment
judgments,
ren-
and then commented:
plaintiffs
(provided
in the
dered
case
not a
appealed from is
judgment
“The
it, as the case
take such
or answer
judgment,
undecided
final
because it leaves
may be) ;
it
but
not think that would
we do
being decisive
the main
Not
demand.
orderly
conduce to an
administration of
sup-
controversy, it
not
points
would
* *
justice
time,
to review it at this
port
so
plea
judicata.
be-
of res
This
judgment
preliminary
it
on a
cause
is a
Heirs case
of the Bossier’s
doctrine
proceeding.
matter
course
Bluff
Bragmans
to in Trclca v.
was adhered
signed can-
judgment
that the
The fact
332,
805,
Company,
123
168 La.
So.
Lumber
interlocutory
change
from
not
it
384,
Feitel,
La.
So.
Feitel
v.
Feitel, 169 La.
judgment.
final
Feitel v.
court,
280, 281,
of which the
in the latter
cited.
125 So.
and authorities
jurisprudence,
respect
to the earlier
“
*
* *
ap-
judgment
“And
is clear that
The case of State ex
stated:
pealed
judgment
such
Judge
Eighth Dist.
v.
rel.
Ikerd
[of
irreparable
injury. When
final
effect, work
212, was,
Court],
La.Ann.
by the
to be rendered
district
Hollings-
in Bossier’s Heirs v.
overruled
* *
review,
court comes before this court
supra,
Jackson,
worth &
par-
can restore the
court in its decree
in Williams et al. De
It is true
ties,
any right
without
loss of
under the
Company
al.,
et
& Trust
Soto Bank
*12
position
pleadings,
to
identical
which
66,
888,
appeal
an
was
171 So.
enter-
La.
occupied
respectively
before the
inter-
principally
strength
tained
complained
locutory judgment
of was ren-
case,
without mentioning
and
Ikerd
Feitel, supra.”
Feitel
dered.
v.
Heirs, Trcka and
In
Feitel cases.
Bossier’s
authority, however,
Barbe,
case as
Later in Reeves
v.
the Ikerd
et al.
citing
200 La.
426,
interpreted
holding 1073,
Heirs,
it as
9 So.2d
seemingly
court
the Bossier’s
n .810
713,
from
inter-
ap-
which had been taken
an
with
Feitel
were cited
and
cases
Trcka
Carmody
locutory judgment ordering
v.
the defendant
in
proval.
same
done
The
764,
wife
625,
in husband to account
al.,
21 So.2d
Land
207 La.
et
n support
separation had
complained (between whom a
been de-
holding of a
respect
creed)
to
ruling
a reconventional
dismissing
(cid:127)of
acquets
gains.
interlocutory judgment caus-
mand was an
irreparable injury and from which
ing no
specifically
With reference
to the kind
appeal
no
be taken.
could
par-
in a
judgment
appeal
from which an
for deter
presented
there was
is
Meanwhile
paucity
proceeding
tition
will lie ther<“
a
Company,
Benham, Ziegler &
in
mination
jurisprudence.
of decisions
Seem-
our
Mouledoux,
Inc.,
La.
So.
v.
ingly appropriate, however,
is Marion-
question
whether or not
428, 429,
Marionneaux,
et al.
neaux
v. Succession
accounting was
an
judgment ordering
28 La.Ann.
in which the court said:
appeal would lie.
which an
the kind
appeals
“Two
have been
in this
taken
negative the court
it
answering
case,
homologating
one from an
order
n said:
report
experts
other from an
judge,
a trial
“A judgment, rendered
partition
directing
order
to be made
n ordering an
signed by
accounting, whether
kind,
notary
referring
not,
judg-
or
not a
definitive
final
him
complete
partition.
has
A motion
*
* *
interlocutory
ment,
one.
is an
but
dismiss these
in this court
made
been
interlocutory judg-
however,
not,
an
others,
among
ground,
appeals, on
irreparable injury.
may
ment,
work
interlocutory
appealed from are
the orders
account-
error,
any,
ordering
if
The
irreparable in-
an
only,
not work
do
corrected
a one
is such
ing,
may be done
the no-
jury. Whatever
disposed
finally
the case
appeal, after
project
to a
for a
only amount
tary will
*
* *
court.
the trial
any
bind
one until
not
will
partition,
presented
grant
have
shall
been
not
same
why
does
the law
reason
“The
homologation;
and from
final
judgment
court
from such
appeal
an
court, homologating
favor
it
does
present
is because
”*
* *
any
appeal.
interested can
one
partition,
up
fragments.
of cases
bringing
Gay
in the case
said
v.
Benham
“This
from the
language
above
that,
al.,
‘according
et
said
ex
State
Marionneaux
approvingly
quoted
case
rulings courts ren-
al.,
all orders
et
Derryberry
article
et al. v.
Knighton
rel.
pending
oper-
all contestations
256;
was the dered on
also
412, 177 So.
La.
notary
partition
before
in ation
dismissal
basis
feeling
party
ag-
interlocutory,
169, 36 So.2d
La.
Wright, 214
Cotton
*13
812:
This,
property
money
or
remedy,
may be re-
the
in kind.
and
grieved has his
only
by
can
a
presented for
be done
further decree of the
is
partition
lieved when the
* * *
court.
judg-
homologation,
final
it
from the
and
is
“
appeal
ment thus rendered that an
would
* * *
are, still, questions
There
in.
proceedings and
lie, subjecting the whole
parties
which the
have each a direct inter-
of this
all
to revision
interlocutory orders
est,
must be
judicially
determined
* *
358;
court.’ 20
An[n].
[La.]
before the relief
granted
has
been
the suit calls for.
partition proceeding of Green
And in the
Fisk,
a suit
103 U.S.
26 L.Ed.
“In foreclosure suits it has been held
of Louisiana
commenced in a state court
decree,
that a
which settles all
rights,
the
judiciary,
to the federal
removed
and later
nothing
the
leaves
to be done
Supreme
refused
Court
United States
the
a
pay
to make
sale and
pro-
but
over the
tak-
appeal of the defendant
to consider an
ceeds,
final
purposes
is
appeal..
the
of an
decreeing the
en from a
reason is that
in such a
case
salé-
one-half of
to be the owner of
court,
the execution of the decree of
to a
matter
referring
involved
rights
enforces
simply
par-
of the
par-
proceed
a
directions
master
adjudicated. Here,
finally
however,,
ties as
direction
under the
according to law
tition
court,
case,
such is
because still the
appeal the
dismissing
court.
judicially
partition
must act
in making the
part:
court said
it has ordered. What remains to
done
causes,
equity
judicial.
is not ministerial
partition
courts of
but
The law
“In
prescribed
per- has
fixed
rights
no
rules which
the several
first-ascertain
officers
the court are
governed
to be
and then make
division
interested
sons
performance
duty
the-
assigned
to-
After the division has
property.
them. The court is still to exercise its.
court,
confirmed
been made
judicial discretion in
kind,
completed by
directing the
mutual
move-
if
partition,
ments and
to the sev-
conveyances
approving
allotments
acts of its assist-
* * *
ants,
finally
until it has
parties.
settled
eral
and deter-
partition,
mined
the details
if
cannot be said to be final
“A decree
kind,
made in
or directed
a sale
the-
completed
adjudica-
court has
its
until the
prescribed
ministerial officers and
the rules-
Here the several inter-
tion of the cause.
proceeds.”
for a division
parties in the
land
been
ests
have
determined,
but
this is
From all
the foregoing
appears
ascertained
preparatory to
merely
present
the final relief
jurisprudence
which under our
say,
sought;
-setting
that is to
only
will lie
from:
off to
-1. A definitive or final:
complainant
severalty
her share
judgment, being
that which ultimately de-
maintaining
controversy
expressly
impliedly
ever
between
points
cides
district
adjudica-
That the
complete
affirmative demand.
parties and effects
interlocutory
pass upon
is also
court did not
such
cause,
demand
or 2. an
tion
itself, preliminary
majority opinion
shown mat-
determining judgment,
“ * * * However,
when therein it
is said:
proceeding,
*14
ter in the course of
court, by
judge
mere-
irreparable injury.
as the
of the district
may cause
it
ly
plaintiff’s rule,
not for-
dismissing
did
instant
which the
judgment from
The
mally approve
the
account rendered
n appeal
clearly
not definitive
is
was taken
fendant,
him,
as
remand
prayed
for
decreeing that the
merely
By
(cid:127)character.
portion
required
this
as
the case will be
recalled, annulled
cause be
to show
rule
say,
us,
we cannot
the record before
aside,
only
obviously
its
effect
set
.and
as
all
debts listed
defendant
that,
primary de-
to her
a determination
proper.”
liabilities are
mand,
to
sufficient
plaintiff
introduce
failed
alleged
Unquestionably,
judgment presently
the
conceal-
to establish
the
evidence
assets;
submitted for
did
the
not decide all
by defendant
review
ment
demand,
points
dispute
parties
in-
that,
other
between
in this
as to
partition proceeding
were
plaintiff’s behalf
and settle
to the
taken
off
on
ventories
litigants
respective
their
shares
inasmuch
defendant
binding on
not
money
kind,
property
or in
represented
when
present or
not
rendering
essentials for
judgment
defi-
judgment
Certainly
prepared.
were
nitive
character under the above dis-
judicata as
been res
not have
would
jurisprudence.
cussed
Yet
deter-
be
appeal, when
no
taken
plaintiff, had she
are such
mined
controverted matters
by way
opposition
show
attempting to
(among others)
properties
as the exact
be-
completed par-
homologation of the
to the
longing
community,
values,
to the
their
community property had not
all
tition that
of dividing
(in
manner
them
kind
in her
listed,
that described
including
been
licitation),
and the
obligations.
inventories.
proper procedure
The
for
holding
And,
determining
contrary to
disputes
partition
all
judgment
proceedings,
opinion, certainly the
as I
majority
appreciate
law,
is that
approve
ac-
district
from does
appealed
judge enlists the services
aof notary public
defendant.
by the
counting furnished
partition,
to make a
under
supervision
his
prayed that the
rule he
to the
answer
community and direction and with all
hold “that
interested
expressly
having
right
properties
set
heard
those
consists of
before
notary,
hereto”;
pursuant
provisions
but
1 attached
in Schedule
Arti-
forth
what- cles 1027
1028of
language
the Code of
contains no
Practice.
judgment
over,
completed by
partition
When the
even if
violate
should
notary
presented
injunction,
appears
it
the court
certain that
homologation,
oppositions
adequately compensated
at which time all
can be
upon.
passed
monetary
thereto are
loss
considered
that she
sustain.
1032,
Code of
in-
Practice
Articles 1029
The
holding
majority
herein that
clusive.
Following the determination
the district court’s
is definitive
oppositions
judg-
there is rendered a
predicated
Cary Richardson,
v.
35 La.
partition.
homologating the
From
505,
Ann.
Dimitry,
and Garland v.
164 La.
evidencing
adjudi-
judgment,
the final
875,
before pointed As out above the judg- instant parties, without can restore the its decree clearly dispose does not of the entire pleadings, to any rights under the loss of partition merits of the proceeding, leav- respec- position which the identical only accounting ing an to be done in fur- interlocutory occupied before the tively judgment. therance execution of such rendered.” complained of was From which it follows that such decisions judgment inapplicable remembered are here. it is connection In this protected by an herein plaintiff appeal Since the under consideration is defendant, preventing against injunction judgment, not from definitive nor property; encumbering selling or his interlocutory decree cause books and records irreparable defendant’s injury, my conclusion the court under are without possession right that we entertain it. remedy for tecum. Plaintiff’s subpoena obtaining duces More- a review writ 818 complained of herein is ruling ren- from the to be final dered, being ultimately homolo- partition.
gates
For above reasons dis- respectfully I
sent. Gen., Kemp, Jr., Atty.
Bolivar E. James Palmer, Atty. respondent- G. Gen., Asst. appellant. 54 So.2d Racivitch, Wegmann, Herve & Johnson VETER- OF BOARD
KRAMER v. STATE Racivitch, Mouledoux, E. William Warren MEDICAL EXAMINERS. INARY relator-appel- Conrad, Orleans, New J. No. 40284. lee. 29, June 1951.
HAMITER, Justice. controlling here our Applicable and 23, April (rehearing decision rendered Montegut May 1951), in' refused Dentistry, 219 Board of Louisiana State ap- There we 862. declined La. So.2d jurisdiction proceed- pellate of a mandamus only sought which the relator ing in Board of compel the State Den- Louisiana to him a license for tistry to issue dentistry in practicing Louisiana with- examination, requiring taking an out authority for enter- our reason *16 appeal in such an action is taining an Article granted to us Section Appeal, opinion of Court see 55 Eor of 1921. Simi- the Louisiana Constitution So.2d 93. only the relator larly, in cause seeks mandamus, compel, State Board Veterinary Medical Examiners to ex- him, license, and to issue amine notes on this promissory is not worthless stock any event, donation, purchase was the stock it is certain included Com- made unsuspicious, Saranac Investment at time Saenger, Inc. and was not potential purpose pany defrauding considerable of her which was