Boudreaux v. Bennett

ST. PAUL, J. Plaintiff sued out executory process against defendant. The latter applied for an injunction, without bond, to be issued after due hearing, on the ground that the note sued on had been paid, and on other grounds. Whereupon-, after due hearing, the injunction was denied; and defendant then appealed. Thereafter the trial judge recalled his order allowing said appeal, as having been improvidently granted. But the transcript of appeal was, none the less, filed in this court. Thereupon plaintiff moves to dismiss the appeal, and defendant, though duly notified hereof, offers no objection. As the order of appeal is the very foundation of the appeal (O. P. art. 574), there can be no appeal without such an order to support it; and hence, when the order of appeal was recalled, the appeal fell with it, “sublato fundamento cadit opus.” Decree. The appeal herein taken is therefore dismissed.