S. Hernsheim & Bro. v. Isidore Levy & Co., No. 8303

No. 8303 | La. | Nov 15, 1881

Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

. Plaintiffs instituted suit and recovered judgment against defendants, and made several fire insurance companies garnishees by process of attachment. The companies filed exceptions, before the trial of which the syndics of the insolvent defendants made appearance, and suggesting the accepted surrender in insolvency of the defendants, and. that said proceedings were pending before Division C of the said Civil District Court, moved the transfer of the canse to that court from Division B, where the original suit had been filed.

From the order or judgment making such transfer, defendants have taken the present appeal.

Among other grounds, appellees urge* that no appeal lies from a decree ordering the transfer of a cause from one State court to another. In their briefs on this motion, counsel for defendants direct their argument to show that the order of transfer was erroneous.

But these arguments, though strong and learned, are not applicable to the only point at issue. It'is whether the judgment complained of, even if erroneous, would cause irreparable injury to the defendants. As the case could and will be reviewed by us on appeal, the alleged error of the judge in ordering the transfer of the cause, will be corrected, and the cause remanded to the proper tribunal. Thus the injury caused to defendants would be remedied, and it follows, therefore, that it is not irreparable. Art. 566 of the Code of Practice, granting the right of appeal from interlocutory judgments, has been frequently interpreted and expounded by this Court, and was the subject of an exhaustive opinion in the case of State ex rel. Fontelieu vs. Judge, 31 An. 47, in which previous opinions of this Court, on the same point, were fully reviewed.

In that case, our immediate predecessors correctly held and ruled that a judgment ordering the transfer of a cause pending in a State court to another State court, could not cause irreparable injury to any of the parties in the case, whose complaints could be investigated and passed upon in the appeal from the final judgment in the cause.

The question is, therefore, no longer an open one, and appellees' motion must prevail. Todd vs. Andrews, 3 N. S. 25; Powell vs. Kellar, 1 An. 25; Pooley vs. Morehouse, 13 An. 300.

It is, therefore, ordered that this appeal be dismissed at appellants' costs.