Deshotels v. Deshotels , 1982 La. App. LEXIS 7916 ( 1982 )

MOTION TO DISMISS

STOKER, Judge.

The defendant-appellee, Janice M. Desho-tels, moves to dismiss the appeal of plaintiff-appellant, James D. Deshotels, on the grounds that the judgment appealed from is a non-appealable interlocutory judgment.

Plaintiff-appellant filed suit for partition by licitation, praying that an inventory of the property belonging to the community be taken, and that the property be sold at public auction.

After the auction, at which plaintiff-appellant purchased all property, the auctioneer refused to sign the proces verbal and filed a rule for resale at public auction on the grounds that plaintiff-appellant had not paid the purchase price.

Thereafter, plaintiff-appellant filed a rule directed to defendant-appellee to show cause why the joint auctioneers should not be ordered to complete and execute a proces verbal. This rule and the amended rule were dismissed by the trial judge. The judgment dismissing the rule was appealed by plaintiff-appellant.

Defendant-appellee filed a motion to dismiss this appeal contending the judgment rendered below is not a final judgment, but merely an interlocutory decree which is not appealable absent a showing of irreparable injury. We disagree and deny the motion.

Louisiana Code of Civil Procedure Article 2083 states:

“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default ...”

Article 1841 reads:

“A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.”

“A judgment that determines in whole or in part is a final judgment.”

In the case of Hawthorne v. Humble Oil and Refining Co., 200 So.2d 52 (La.App. 1st Cir.) the court considered the question of whether or not the dismissal of a rule to show cause was an appealable judgment. The court found, as we find here, that although the judgment complained of could not affect the outcome of the case on the merits, it did determine finally the rights of the parties.

We find that the dismissal of a rule to show cause is a final appealable judgment. Accordingly, defendant-appellee’s motion to dismiss is denied.

MOTION DENIED.