Kyle v. Kyle , 358 So. 2d 708 ( 1978 )

358 So. 2d 708 (1978)

Alfred R. KYLE, Plaintiff-Appellee,
v.
Anita Evans KYLE, Defendant-Appellant.

No. 6587.

Court of Appeal of Louisiana, Third Circuit.

April 28, 1978.

Jumonville, Hartley, Plauche & Broadhurst by Colleen McDaniel, Lafayette, for defendant-appellant.

Voorhies & Labbe by Mark Bienvenu, Lafayette, for defendant-appellant.

David L. Dawson, Jr., Baton Rouge, for plaintiff-appellee.

Before DOMENGEAUX, FORET and CUTRER, JJ.

FORET, Judge.

MOTION TO DISMISS

The plaintiff-appellee, Alfred R. Kyle, moves to dismiss the appeal of the defendant-appellant, Anita Evans Kyle. The motion is opposed.

We grant the motion to dismiss.

On October 10, 1977, plaintiff filed suit seeking the permanent care, custody and control of the minor child, Tina Marie. The defendant responded by filing an Exception of Lack of Subject Matter Jurisdiction; on January 26, 1978, the trial judge signed a judgment overruling the exception. The defendant has taken an appeal from this judgment.

The plaintiff-appellee moves to dismiss the appeal arguing that the judgment complained of is a non-appealable interlocutory decree. We agree.

This court has long held that a judgment overruling an exception of lack of subject matter jurisdiction is a nonappealable interlocutory decree. Stahlman Lumber Company—Division of Staco Manufacturing Company v. Ferrill, 320 So. 2d 331 (La.App. 3 Cir. 1975).

Defendant-appellant concedes that the judgment is interlocutory, but argues that it is appealable under C.C.P. Art. 2083 because irreparable injury may result. She asserts that if she is forced to defend this suit, she will not only have to fight a lawsuit, but will have to suffer the expense and indignity of having to come to another state to defend her rights for the custody of her daughter in a state which, she submits, is without jurisdiction or interest in the matter of her daughter's custody.

It is well settled that the inconvenience and expense incurred in the defense of a lawsuit does not constitute irreparable injury within the meaning of C.C.P. Art. 2083. Mauterer v. Tillery, 328 So. 2d 755 (La.App. 1 Cir. 1976).

APPEAL DISMISSED.