Powell v. Kellar

| La. | Apr 15, 1846

The opinion of the court was delivered by

Slidell, J.

Powell brought suit against Kellar in the Commercial Court. Kellar denied PoiuclVs claim, and filed a plea in reconvention against Powell. The cause having been tided, and a verdict rendered in favor of Powell, Kellar took an appeal. Pending this appeal, Powell transferred all his rights and interest in tho judgment against Kellar, to the New Orleans Canal and Banking Company; and, on the 5th of August, 1841, an order was entered of record in the cause, upon filing and suggesting the notarial act of transfer, subrogating the bank to the judgment, and to all tho rights, privileges, etc., which Powell possessed against Kellar, in virtue of said judgment. On the appeal this court reversed the judgment, and remanded the cause for a new trial.

Soon after tho cause was remanded, Powell made a cession of his property to his croditors, in tho. First Judicial District Court, and the usual order, slaying proceedings, etc., was grunted.

Subsequently, the attorney of Kellar appeared for him In the Commercial Court, contradictorily with tho counsel of plaintiff, and upon suggestion of the failure of Powell in the District Court, it was moved and thereupon ordered by the Commercial Court, that the cause be transferred to the District Court. The order cfoos not state what was lo be done with the cause in the District Court; but we presume the intention was, that it should bo cumulated with the proceedings in the matter ol'the cession of Powell.

After tho record was thus transferred to tho District Court, the barfk filed an exception to the jurisdiction of the District Court, pleading the nudity of tho order of tranfer„aud praying that tho cause be re-transferred to the Commercial Court.

Tho District Court sustained the plea, and ordered the re-transfer.

Prom this decree of tho District Court, Kellar has appealed.

The counsel for tho appellee contends that the decree of the District Court was not appealable, being an interlocutory decree, and not working an irreparable injury. Wo think the objection-well taken, and accordingly must dismiss the appeal. Had the Commercial Court refused to resume the consideration of the cause, we would, on an application in proper form to this court, have granted a mandamus, commanding the Commercial Court to proceed to try and adjudge the cause. C. P. 837.

Appeal dismissed.