Bujol v. Missouri Pac. R. Co. , 207 La. 123 ( 1944 )

So far as the plaintiff in any case is entitled to a devolutive appeal from a judgment dismissing his suit at its inception, his appeal should not be dismissed on the ground merely that he only asked for and obtained an order for a so-called suspensive appeal. When a litigant asks for and obtains an order for a suspensive appeal in a case where he is entitled to only a devolutive appeal, his appeal should not be dismissed merely because of his calling it a suspensive appeal, but should be recognized as a devolutive appeal only.

I respectfully submit that the prevailing opinion in this case is wrong in characterizing the plaintiffs' appeal as a suspensive appeal, and is in direct conflict with the decisions cited to support it. I refer particularly to the very recent and very similar cases entitled, respectively, Brock v. Police Jury of Rapides Parish, 198 La. 787, 4 So.2d 829, and Waggoner v. Grant Parish Police Jury, 198 La. 798, 4 So.2d 833. The opinion in each of these cases was unanimous, and the Brock Case contained a thorough review of the decisions on the subject — which decisions — strange to say — are cited in the prevailing opinion in the present case as sustaining the opinion. I quote now from Brock v. Police Jury of Rapides Parish [198 La. 787, 4 So.2d 831]:

"The statute [Section 5 of Act 29 of 1924] therefore in unmistakable terms forbade the judge in this case to grant the plaintiffs a suspensive appeal, either from the dissolving of the restraining order or from the refusal of the judge to grant a preliminary injunction. So far as the judgment rejected the plaintiffs' demand and dismissed their suit it could not be appealed from suspensively, because there was nothing that could be suspended by the plaintiffs' taking an appeal and calling it a suspensive appeal. A suspensive appeal, as distinguished from a devolutive appeal, is one which stays execution of the judgment appealed from. Therefore an appeal from a judgment which merely rejects the plaintiff's demand and dismisses his suit at the outset is essentially only a devolutive appeal, even though the judge and the appellant may call it a suspensive appeal.

"The case of Brock v. Stassi, 189 La. 88, 179 So. 44, is exactly in point. Brock instituted an executory proceeding against Stassi on a mortgage note, and Stassi filed a petition for an injunction in the executory proceeding, contending, first, that the note was paid, and, in the alternative, that the debt was extinguished by prescription. Brock, answering the rule to show cause why a preliminary injunction should not be granted, `put the whose case at issue; and it was tried on its merits.' The judge, after hearing the evidence, gave judgment for Brock, rejecting Stassi's demand for an injunction. The judge granted Stassi an appeal from the judgment, and called the appeal `both a suspensive and a devolutive appeal'. Brock moved to dismiss the appeal, and this court characterized the appeal thus: `The motion to dismiss the appeal is overruled, but the appeal is maintained only as a devolutive appeal.' In deciding that inasmuch as the judge had not granted a preliminary injunction Stassi's appeal from the judgment rejecting his demand and dismissing his suit could not stay the executory proceeding, the court said:

"`There was therefore no authority for the judge to order the executory proceedings stayed by virtue or effect of the so-called suspensive appeal from the judgment rejecting Stassi's demand and dismissing his petition for an injunction. An appeal from a judgment dismissing a suit at its inception is not a suspensive appeal, because there is then nothing to suspend — whatever may be the name given to the appeal.'

"To the same effect was the decision in the case of Snowden et al. v. Red River Bayou Des Glaises Levee Drainage District et al., 172 La. 447, 134 So. 389, 391. The plaintiffs in that case sued to enjoin the levee and drainage district and the tax collector from collecting certain levee taxes, on the ground that the tax was invalid. The judge issued a rule on the defendants to show cause why a preliminary injunction should not be issued. The defendants filed an exception of no cause of action and a plea of estoppel, and prayed for a dismissal of the suit and for 10 per cent on the amount of the taxes, as damages under the tax statute, section 56 of Act 170 of 1898. The case was submitted to the judge on those issues and while he had it under advisement he issued a restraining order, preventing the tax collector from selling the property. The judge afterwards gave judgment against the plaintiffs, dissolving the restraining order, refusing to issue an injunction, dismissing the suit and condemning the plaintiffs to pay the 10 per cent statutory damages. The judge allowed the plaintiffs an appeal, which he characterized as both a suspensive and a devolutive appeal. The defendants moved to dismiss the suspensive appeal on the ground that, according to section 5 of Act 29 of 1924, such an appeal could not be allowed from a judgment dissolving a restraining order and refusing to issue a preliminary injunction. This court held that the appeal which the judge had allowed, and which he called a suspensive appeal, stayed execution of the judgment condemning the plaintiffs to pay the 10 per cent damages, but had no such effect on the judgment dissolving the restraining order and refusing to grant an injunction. The court said:

"`In this instance, no preliminary injunction ever issued, and hence no preliminary injunction was ever dissolved, to be reinstated, as it were, by a suspensive appeal. * * *

"`The law does not contemplate that a restraining order, granted by the trial judge, pending an application for a preliminary injunction, should be, as it were, reinstated by a suspensive appeal, and operate during the pendency of the appeal. It contemplates that such an order shall pass out of existence, and so remain, in the lower court.'

"In the opinion rendered in the case of Agricultural Supply Co. v. Livigne, 177 La. 15, 147 So. 365, there is a palpable error in that the appeal which the court allowed to an intervener, appealing from a judgment dissolving a temporary restraining order, refusing to grant a preliminary injunction, and finally rejecting his demand, was called a suspensive appeal. The court could not have allowed a suspensive appeal without doing violence to section 5 of Act 29 of 1924 and the jurisprudence on the subject. So far as the intervener was allowed an appeal the decision was correct, but it was a mistake to call the appeal a suspensive appeal.

"If the judge in this case had granted the plaintiffs a preliminary injunction and afterwards dissolved it in consequence of his rejecting the plaintiffs' demand or dismissing their suit, they would have been entitled to a suspensive appeal, i. e., one which would have kept the preliminary injunction in force pending a hearing of the case on appeal. It was so decided in Everett v. Hue Aarnes,173 La. 420, 137 So. 201, and in American Bakeries Co. v. Louisiana State Board of Health, 185 La. 959, 171 So. 90. In those cases the court called attention to the fact that that part of the fifth section of the act of 1924 which allows only a devolutive appeal, and not a suspensive appeal, as a matter of right, from an interlocutory order or decree dissolving a preliminary injunction, refers only to interlocutory orders or decrees, and not to final judgments. The difference between this case and the two cases just cited is that in this case the preliminary injunction was refused, whereas in each of the cases cited it was granted."

And now I quote from the opinion written by Justice Odom in Waggoner v. Grant Parish Police Jury [198 La. 798, 4 So.2d 836], as follows:

"But it is suggested that relators were protected by the suspensive appeal. The answer is that, under the law, they were not entitled to a suspensive appeal from the order refusing the preliminary writ of injunction and dismissing the rule nisi. And, even if relators intended to take, and the judge intended to grant, a suspensive appeal from that order, such appeal would

have no effect under the law. A district judge cannot confer upon a litigant a right which the law specifically withholds."

The appeal in the present case should not be dismissed but should be recognized only as a devolutive appeal from the judgment dismissing the suit.