Wheeler v. Joseph Maillot & Co.

Land, J. On the trial of this case in the lower court, the Judge rendered a. judgment of non-suit on the motion of plaintiff’s counsel. Within three judicial days thereafter, and before the judgment of non-suit had been signed by the Judge, the plaintiff’s counsel took a rule on the defendants to show cause why a new trial should not be granted. The rule was made absolute, and the defendants have appealed from the order of the Judge, granting the new trial. The plaintiff’s counsel have filed a motion to dismiss the appeal on the grounds that no appeal lies from an order granting a new trial — -that such an order is within the discretion of the District Judge, is interlocutory, and does not work an irreparable injury. These grounds are well taken, and are sufficient to dismiss the appeal. In the cases of Gilbert et al. v. Nephler & Boyle, 15 L. 59, and of Noland & Morancy v. Bemiss, 14 An. 49, relied on by appellant’s counsel the-judgment had become final, and the lower court was without jurisdiction, at the time that the respective orders were granted therein. These cases therefore cannot be invoked as authority in the case now before us for the purpose of maintaining the appeal. Eor the reason stated, it is ordered, adjudged and decreed, that the appeal taken in this case be dismissed at the costs of appellant, and that this cause be remanded to the lower court for further -proceedings according to law.