Bujol v. Missouri Pac. R. Co.

HIGGINS, Justice. The appellees moved to dismiss the devolutive and the suspensive appeals granted to and perfected by the plaintiffs, on the following grounds: (1) That the devolutive appeal is frivolous; (2) that the plaintiffs’ petition failed to allege sufficient facts to show appellate jurisdiction in this Court; and (3) that under Section 5 of Act No. 29 of 1924, which deals with injunctions and the jurisprudence of this State interpreting and applying those provisions, a suspensive appeal is not allowed from a decree refusing a preliminary injunction, the appropriate remedy being a devolutive appeal, which was not granted by the district judge herein. This is an action by thirty switchmen and trainmen employed by the Texas & Pacific Railway Company and members in good standing of the Brotherhood of Railroad Trainmen rendering services jointly to the Missouri Pacific Railroad Company and the Texas & Pacific Railway Company and their joint terminals at Addis, West Baton Rouge Parish, and in Alexandria, Rapides. Parish, Louisiana. They seek to have an agreement dated June 2, 1927, between the two railroad companies and the Brotherhood of Railroad Trainmen, the Brotherhood of Locomotive Engineers, and the Brotherhood of Locomotive Firemen and Enginemen enforced, and to have declared illegal a decree of the Board of Appeals of the Brotherhood of Railroad Trainmen, dated November 16, 1943, which allegedly attempts and purports to change and abrogate the agreement of June 2, 1927, to the detriment and injury of the plaintiffs. The said illegalities, changes and harmful results are set forth in detail in the petition. The petitioners also ask for injunctive relief to protect their interest pending the suit and for a permanent injunction after a trial on the merits. They were granted a restraining order by the district judge and a rule nisi to show cause why a preliminary injunction should not issue. The Missouri Pacific Railroad Company,, one of the defendants, filed an exception of misjoinder on the ground that the company was in bankruptcy to effect a plan of reorganization under Section 77, Chapter 8 of the Acts of Congress, 11 U.S.C.A. §, 205, and that the trustee alone was the proper party to be sued and, therefore, the citation of the company’s previously des *127 ignated agent for service was illegal and he was improperly made a party defendant, The Brotherhood of Railroad Trainmen, joined by other defendants, also filed exceptions of want of proper citation against the Brotherhood. The respondents further filed motions to dissolve the restraining order. The trial judge sustained the exception of misjoinder and dismissed the suit as to the Missouri Pacific Railroad Company. Later the trial judge rendered the following judgment: “ * * * It is ordered, adjudged and decreed that the motions filed by all of respondents to dissolve the said temporary restraining order be and the same are hereby sustained, and accordingly the said restraining order is dissolved and vacated at the cost of the plaintiffs. “It is further ordered, adjudged and decreed that the exception of improper citation be sustained as to the Brotherhood of Railroad Trainmen, and accordingly “It is ordered, adjudged and decreed that the rule nisi for preliminary injunction be recalled, vacated and dismissed as to all of the respondents and at the cost of the plaintiffs. “It is further ordered, adjudged and decreed that this suit be finally dismissed as to all of said respondents at the cost of the plaintiffs. 4 * * ” Counsel for the plaintiffs gave notice of intention to apply to this Court for writs of prohibition, mandamus and certiorari, but this action was never taken. They did apply for devolutive and suspensive appeals returnable to this Court and the district court granted the following order: “The application for a devolutive appeal from the order of the Court recalling the rule herein and denying in effect the application for preliminary injunction is denied for the reason that the case in its entirety has been dismissed, and that having been done, in the opinion of the Court, plaintiffs are entitled only to a suspensive appeal from judgment dismissing the suit. Therefore an order will issue herein granting a devolutive appeal to the Supreme Court, returnable on the 31st day of August, 1944, from the judgment dismissing this suit as to the Missouri Pacific Railroad, and also an order will issue to plaintiffs for suspensive appeal, returnable to the Supreme Court of Louisiana, on the 31st day of August, 1944, from the judgment dismissing this suit in its entirety, returnable August 31st, 1944, bond in the first appeal to be fixed at $50.00, and in this appeal at $500.-00.” We shall discuss the issues presented by the motions to dismiss the appeals in the order first hereinabove given: (1) The motion to dismiss the devolutive appeal on the ground that it is frivolous clearly pertains to the merits of the case and cannot be considered as a basis for a motion to dismiss the appeal. (2) Affidavits and attached documents were filed in this Court showing that the amount involved is in excess of the minimum jurisdictional amount of $2,000. The law is well settled that affidavits of this *129 kind may be filed in this Court to maintain its jurisdiction. Cousin v. St. Tammany Bank & Trust Co., 146 La. 393, 83 So. 685; Quaker Realty Co. v. City of New Orleans, 163 La. 374, 111 So. 791; Tatum v. Andrews et al., 165 La. 222, 115 So. 466. (3) The plaintiffs abandoned any claim to a right of suspensive appeal in connection with the injunction proceedings by failing to invoke this Court’s supervisory jurisdiction. In asking for the devolutive and the suspensive appeals, which were granted, the plaintiffs separated them, making it clear that as to the final judgment dismissing the case they were entitled to a suspensive appeal as a matter of right wholly disassociated from any question arising in connection with the injunction proceedings which were merely incidental to the main demand. They are not contending before this Court that the trial judge should have granted a suspensive appeal in connection with the injunctive relief sought and denied them. They simply take the position that where there is a final judgment dismissing a suit outright, the plaintiff is entitled to a suspensive appeal as a matter of right. In the case of Agricultural Supply Co., Inc., v. Livigne et al., 177 La. 15, 147 So. 365, this Court granted a peremptory mandamus ordering the district judge to grant a suspensive appeal from a judgment finally rejecting the demands of the intervenor or third opponent and, in consequence, dismissing a rule for a preliminary injunction and dissolving a temporary restraining order. In taking this action, we said: “On the trial of the rule for a preliminary injunction, the only question for decision before respondent judge was whether such injunction should be granted or refused. Act No. 29 of 1924, § 2. “It is true that a suspensive appeal cannot be applied for as a matter of right from an order granting or refusing a preliminary injunction. Act No. 29 of 1924, § 5. “But, in the case before us, respondent judge has not only refusel to grant a preliminary injunction, but has passed also upon the merits of the case, by decreeing the nullity of the sale from defendants to relator of the property herein seized by the plaintiff. “Necessarily, this is a final judgment from which relator has the right to prosecute a suspensive appeal to this court. C. P. arts. 539, 565.” It is well settled in our jurisprudence that Section 5 of Act No. 29 of 1924 is an exceptional instance where a suspensive appeal is not allowed but it has reference to interlocutory decrees pertaining to temporary restraining orders and preliminary injunctions but cannot be extended to apply to a suspensive appeal prosecuted expressly from a final decree of the court dismissing the plaintiff’s suit and finally rejecting the plaintiff’s demands upon the merits. Young et al. v. Village of Bossier City, 152 La. 18, 92 So. 719; Snowden v. Red River & Bayou Des Glaises Levee & Drainage Dist., 172 La. 447, 134 So. 389; Everett, Commissioner v. Hue & Aarnes, 173 La. 420, 137 So. 201; American Bakeries Co. v. Louisiana State Board of *131 Health, 185 La. 959, 171 So. 90; Brock, Com’r, v. Stassi, 189 La. 88, 179 So. 44; Brock et al. v. Police Jury of Rapides Parish, 198 La. 787, 4 So.2d 829. The fact that the suspensive appeal in this case would not have the legal effect of suspending any action taken by the district judge for the reason that the plaintiffs’ demands were rejected in toto is not a legal reason for denying them a suspensive appeal as a matter of right. This was pointed out in the case of Snowden v. Red River & Bayou Des Glaises Levee & Drainage Dist., supra [172 La. 447, 134 So. 391], where the Court said: “While the suspensive appeal, in this case, may not be of any great benefit to plaintiffs, yet, as the law allows it, it should not be dismissed.” For the reasons assigned, the motions to dismiss the appeals are denied. On Motions to Dismiss Appeals.