Schwartzenburg v. Indian Hills Subdivision Residents, 386 So. 2d 187

Schwartzenburg v. Indian Hills Subdivision Residents

386 So. 2d 187 | La. Ct. App. | 1980

GUIDRY, Judge.

MOTION TO DISMISS

The appellees move to dismiss this appeal on the grounds that it is neither a final judgment nor is there a showing of irreparable injury. We agree and dismiss the appeal.

The plaintiffs filed their suit on July 9, 1979 seeking to remove restrictions on two subdivision lots. The defendants, residents of the subdivision, filed Exceptions of Prematurity and No Cause of Action.

The Lower Court ruled against the defendants by overruling their Exception of Prematurity, subject to the plaintiffs’ adding an alternative prayer. The Court sustained the Exception of No Cause of Action; but, the plaintiffs were given a reasonable time in which to amend their petition.

Since the plaintiffs were given an opportunity to amend their petition and proceed to trial the judgment on the above Exceptions were not final judgments.

According to LSA-C.C.P. art. 2083 an appeal can only be taken from a final judgment or from an interlocutory judgment if it will cause irreparable injury. Since the judgment in this case is neither, the appeal cannot be maintained.

*188In the recent case of Fetty v. Colonial Bank, 365 So.2d 44 (La. App. 4th Cir., 1978) the Fourth Circuit faced a similar situation. In that case, the plaintiff brought suit seeking the return of usurious interest. The defendant filed Exceptions of No Cause of Action and No Right of Action. The trial court maintained the exceptions regarding the return of usurious interest and dismissed the exceptions insofar as they applied to the claim for return of the attorney’s fee.

The trial court granted the plaintiff the right to amend her petition on the maintained exception in order to state her cause of action. The plaintiff then made the amendment and properly stated her cause of action; then shortly thereafter she filed a devolutive appeal.

The defendant moved to dismiss the appeal. The Fourth Circuit recognized that the judgment was not appealable as there was no irreparable injury and no final judgment.

Our present case is similar. Plaintiff clearly has the opportunity to amend her petition and proceed with the trial on the merits of the case.

For the above reasons, the motion to dismiss the appeal is maintained, the appeal is dismissed, and the matter is remanded to the trial court for further proceedings in accordance with the law. Costs of this appeal are taxed to the plaintiff-appellant.

APPEAL DISMISSED AND REMANDED.