State ex rel. Pflug v. Judge of Division E

The opinion of the Court was delivered by Pocirfi, J. . Relator invokes the remedy of mandamus to compel the respondent Judge to grant him a suspensive appeal from a decree sustaining a motion to strike out a reconventionál demand presented in his answer -to- a suit in which he was the defendant. The .case has not yet been tried, hence the decree complained of is: [766] not a final judgment in the case; therefore it is an interlocutory judgment. The right of appeal from such a judgment is recognized in our law when the judgment may cause irreparable injury to the party complaining. If the Judge erred in striking out relator’s reconventional demand, his ruling can be reviewed and his error corrected on an appeal from the final judgment, in the same manner as his ruling would be reviewed on appeal, if the plaintiff had adopted the more regular proceeding of objecting to the introduction of any evidence under the plea in reconvention, and a bill had been taken from a ruling sustaining the objection. • The character of the injury caused by an interlocutory judgment, even when it is signed by the Judge, must be tested under the following plain rule: “ If the decree of the appellate court can restore the parties, without the loss of any right under the pleadings, to the identical position which they respectively occupied before the rendering of ■ the interlocutory decree or order complained of, the injury to either party is clearly not irreparable, and therefore the right to appeal does not exist.” Fields vs. Gragné, 33 An. 340. In the case of Harris vs. Stockett, recently decided by us, and not yet reported (35 An.) we applied this rule to a state of pleadings strikingly similar, with the exception that the interlocutory judgment in that case had not been signed by the Judge. While it is elementary in our practice that a judgment, not signed by the Judge, is not a final judgment, it is equally true that a judgment not final in its character cannot be made final by the signature of the Judge. Eelator invokes our recent decision in the case of State ex rel. Ikerd vs. Judge, etc., not yet reported, as directly in point and decisive of the remedy which he seeks. But he is mistaken. In that case the judgment appealed from had partly sustained an exception, and had dismissed part of the petition and prayer. Under such aruling, plaintiff’s suit had been completely emasculated, and the relator is materially differenced from the present case. The case last quoted by us is absolutely decisive of the question herein presented, and hence we conclude that relator is not entitled to a writ of mandamus. The writ applied for is, therefore, denied at relator’s costs.