State ex rel. Doullut v. Judge of the Sixth District Court

The opinion of the court was delivered by Spencer, J. The suit of “ A. Saulet et al. vs. Paul Doullut,” is a suit to restrain and enjoin the defendant from carrying on a tallow factory in the Third District of New Orleans, on the ground that the same is á nuisance. Plaintiffs pray that an injunction issue against defendant, which upon their oath, and bond, for $300 the court granted. This injunction was granted on the ex parte showing of plaintiff’s petition and oath. Defendant thereupon made an ex parte application to sét aside said [870] injunction by bond, under article 307 of the Code of Practice. The court granted.this order, setting aside the injunction on defendant giving bond for $500, which was accordingly given. Thereupon the plaintiffs, alleging that the acts complained of and enjoined were calculated to work them an irreparable injury took a rule on defendant, to have the order to bond the injunction, rescinded, as having been improvidently granted. Upon trial this rule was sustained and the order permitting the bonding was rescinded and set aside. Thereupon, and within ten days from the date of the original order of injunction defendant moved for a suspensive appeal from both orders to wit: 'First from the original order of injunction and second from the order rescinding the order permitting the bond. The judge refused an appeal from either order, and the defendant is before us applying for writ of mandamus to compel the granting of the appeals and for writ of prohibition. We think he can not appeal from the first, but can appeal from the second of said orders. First — The record of appeal from the original order granting the injunction could not legally contain any thing except plaintiffs petition, affidavit and bond. No proceedings subsequent, could be reviewed on said appeal, for we would have to pass upon the case just as it stood when the district judge passed upon. it, in order to decide whether he rightfully or wrongfully granted the order. In other words the question presented to us would be, whether or not, on the face of papers, taking all plaintiffs’ allegations as true, they were entitled to the injunction prayed for. So that the case would present substantially the same phase, as if an appeal were asked from an order overruling an exception of “ no cause of action.” This court held in Osborne vs. Olayton 3 R. 137 that “ no appeal will lie from an order, discharging a rule to show cause why an injunction should not be dissolved on the ground that the petition set forth no legal cause for issuing it. That it is an interlocutory order and works no irreparable injury, and if erroneous it may be corrected by appeal from the final judgment.” We do not think the law, in giving the right of appeal from interlocutory orders, contemplated extending it to original orders granting the conservatory writs of injunction, attachment, etc. The indemnity which the law provides for defendants in these cases against damage and injury is supposed to be sufficient to prevent the injury being “ irreparable,” even if such original conservatory orders can be' considered as «interlocutory.” If the bond given by the plaintiffs in such suits isruffc good and sufficient to indemnify the defendant against any loss and injury he may sustain, the law provides him a remedy, by motion, to [871] compel the giving of good security. Should the judge wrongfully refuse to grant such order, the party would have the right to appeal from-the order refusing it. Poydras vs. Tusson, 3 La. 443. We think appeals from “ interlocutory orders” should only be granted when the injury therefrom comes with reasonable certainty under the head of “irreparable;” for such appeals tend greatly to the delay and expense of litigation. If substantial relief from the injury done by the order can be obtained on appeal from the final judgment, the interlocutory order should not be appealed from. Second — As to the right of appeal from the second order above named, that rescinding, the order to bond the injunction, we think our predecessors have settled that it exists, though if discussed as a new question it would be, we think, very questionable. 12 An. 455; 3 R. 102; 11 R. 452. The effect of the order rescinding the previous order to bond is the same as if the original application to bond had been refused in the first instance. In “ State ex rel. Barthe vs. Judge of Superior District Court,” 28 An. 903, a case involving the precise point, our predecessors heid “ that an appeal will lie from an order refusing to allow the release on bond, under article 307 Code Practice, of an injunction.” See also 28 An. 880 and 889. It is therefore ordered and decreed that the mandamus and prohibition herein be made peremptory in so far as relates to the order rescinding the order to bond the injunction, and that in other respects they be refused.