Bayne v. Cusimano

The opinion of the court was delivered by On Motion to Dismiss the Appeal. Breaux, J. After the trial on a rule to dissolve the writ of attachment which had been issued, a judgment was rendered dissolving the writ of attachment. A suspensive appeal was taken to this court from the judgment of the District Court. In this court the defendant and appellee moved to dismiss on the ground that no appeal lies from an interlocutory order dissolving the writ of attachment, and that the interlocutory order dissolving the attachment does not cause plaintiffs any irreparable injury. On the trial of the rule the facts upon which the plaintiffs rested to sustain their attachment were made to appear in evidence. On the other hand, the defendant contended against the position of plaintiff in attachment and introduced his evidence. The suit in so far as relates to the attachment was tried upon its merits and the rights involved in the controversy were determined adversely to the plaintiff. The merits of the cause were not placed at issue; the rule filed was a preliminary proceeding in the case and the judgment on the rule was interlocutory; nevertheless the decision may have included a right of as great importance as any which can possibly be involved on the final decision. The judgment dissolving an attachment, placed at issue as this was, may be considered, in some respects, at least, as in the nature [363] of a final decree. The issues had been as related to the attachment passed upon by the District Court. The judgment did not have the effect of dismissing the personal action, yet'it brought to a close and terminated the possibility of recovering anything on the property which had been attached. Moreover, if the plaintiff were to gain his suit for the amount he claims, there would be no object in appealing from the judgment in his favor in the personal action. He would have the right to appeal from the judgment, dissolving the writ of attachment, although nothing done since the date of the judgment, could add to the finality of the judgment dissolving the attachment. In an early case this court held that an appeal lies from a discharge of a garnishee in an attachment case. The facts may not be quite similar between the case before us and the case to which we refer; the principle is in the main the same. Laverty vs. Anderson, 4 M. 606. In Hyde et al. vs. Jenkins, 6 La. 427, it was held that an interlocutory judgment which releases the property from attachment may be appealed from. Upon another ground it strikes us the appeal should be sustained. The property attached was released, and it is held by a third person, by whom it was bonded as being his own. His right as owner can not be questioned on the trial before the District Court in the present condition of the case, even if he be not the owner. The judgment dissolving the attachment is binding on all concerned until it be reversed on appeal, if reversible. If a plaintiff in attachment has any right at ail he should have the right to hold the property attached (or its equivalent in case it has been bonded) until the decision of the case. Here the property was released and the bond canceled by the effect of the decision dissolving the attachment. A similar question, in our view, was decided in Laverty vs. Anderson, 4 M. 606. The court held that the order discharging the garnishee was so far final that an appeal lies. A similar view was announced in Hyde vs. Jenkins, 6 La. 427. In view of the foregoing we think the appeal should be heard, and the motion to dismiss refused. It is ordered and adjudged that the motion to dismiss the appeal filed in this case be refused.