Ruthenberg v. Helberg

On Motion to Dismiss. The opinion of the court was delivered by Bermudez, O. J. The motion rests on the ground of want of jurisdiction in this court. [411] 1. Because the amount involved, or matter in dispute, does not exceed $2000. 2. Be cause the judgment appealed from is not a final but is an interloeutory judgment, the execution of which can cause no irreparable injury. The suit is one in partition of property owned in common by the plaintiff and the defendants. After issue joined, the court ordered the real estate to be sold and the movables to be delivered to one of the parties, on certain conditions. It further directed a reference, after the sale, to a notary to effect a partition, with a reserve for the rights of the parties, which had not been at all passed upon. The parties appeared before the notary, after the property had been sold, and discussed the manner in which the partition should be made; but they failed to agree on the subject. The notary drew up an act setting forth the active mass and what appeared to be the passive; but as the appearers, the surviving husband and the two heirs, could not agree, the officer returned a statement or report of the circumstances to the court. The parties then appeared in court setting forth their claims and counter claims. After hearing them the court passed upon their complaint, referring the parties to a notary for the purpose of completing the partition according to the judgment rendered. It is from this judgment that the appeal sought to be dismissed is taken. I. It is evident that the case is appealable. The real estate sold for $2875. To this item are added others, which swell it to $3421.40. The fund to be distributed exceeding $2000, it is apparent, that, under the very term of the Oonstitution, defining the jurisdiction of this court, the case is appealable. Art. 81. Clearly, the judgment is one directing that such a fund be distributed in a particular way. The aggregate of the claims of the parties to that fund exceed the lower limit of our jurisdiction. This first ground, therefore, does not support the motion to dismiss. [412] II. ■ The next question to be considered, is whether the judgment rendered is a mere interlocutory decree, or a final judgment. Interlocutory judgments are such as are pronounced on preliminary matters in the course of the proceedings, without deciding the merits; while final or definitive judgments are those which decide all the points in controversy, and which may acquire the force of res judicata. See O. P. 538, 539. The District Court has passed upon all the issues presented by the litigants, so much so that there remains nothing else to be determined between them. Really, there was no partition of the assets before the notary, who reported merely that the parties could not agree. The duty of the court was to pass upon all their deferences, and it has done so in a manner which sets them at rest, so much so that Were the judgment thus rendered to remain undisturbed on appeal, it would constitute res judicata. It is rendered and signed, as all final judgments are required to be, •u,nd is such that the court which rendered it would be incompetent 'to review without the formal consent of the parties concerned. It has none of the characteristics of an interlocutory judgment or "decree. It is true that, after determining what it does, it refers the parties -to the notary, who is directed to complete the partition according to the views of the court; but this is a mere formality, or ceremony, ■in furtherance of the finding of the court, apparently justified by O. P. Art. 1030; but in reality not so, as this provision refers to ■cases in which a partition was previously made before the notary. The District Judge might as well have stated the manner in which partition should be made, and abstain from referring the parties .'again to the notary. ' Had he done so, the judgment would, without any dispute, have Teen on its face absolutely a final judgment. The fact of the reference does not strip it of that character. Under the rulings in the case of Carry vs. Richardson, 35 An. 505, in which a germane matter was considered, and reference was made to authorities having an immediate bearing, particularly to the case of Woolfolk vs. Woolfolk, 30 An. 146, and others which were cited, drawing elaborately the lines of demarcation between interlocutory [413] and final or definitive judgments, there can be no doubt that the judgment herein rendered and appealed from is a final judgment, which can be reversed by this court at the present stage of the pro.ceedings. The ruling invoked in Marionneaux vs. Marionneaux, 28 An. 392, has no bearing. The court there considered and dismissed two appeals taken, one from an order homologating the report of the [experts, and another directing the partition to be made in kind, referring the parties to a notary. The judgment was not, as it in this case, one settling all the differences of the parties after a reference to the notary, in a manner which closes the door to any further contention, as to the mode in which the assets should be constituted and distributed, and one which practically homologates the partition. It is therefore ordered that the motion to dismiss be denied.