
    (80 South. 665)
    No. 22721.
    DOULLUT et al. v. RUSH et al.
    (Dec. 8, 1917.
    On the Merits, Jan. 6, 1919. Rehearing Refused on the Merits Feb. 3, 1919.)
    
      (Syllabus by Editorial Staff.)
    
    On Application for Rehearing of Motion to Dismiss Appeal.
    1. Appeal and Error <&wkey;795(l) — Motion to Dismiss Appeai>-Denial.
    A motion to dismiss an appeal, based on grounds not appropriate to the appeal, but appropriate to an appeal in a case of the same title having a different number, -where the motion to dismiss the appeal in the other ease is based upon grounds not appropriate to that case, but appropriate to present appeal, will be overruled.
    On the Merits.
    2. Courts <&wkey;99(l) — Law op Case.
    A decision in same case when it was before Supreme Court on writ of certiorari, in effect deciding that the contract sued on was a contract of lease, and not a contract of sale, as contended by defendants, is the law of the case on a subsequent appeal involving the merits of the same question.
    Appeal from Civil District Court, Parish of Orleans; T. C. W. Ellis, Judge.
    Action by Milton P. Doullut and others against Mary Rush and others. Judgment for plaintiffs, and defendants appeal.
    Motion to dismiss appeal overruled, and judgment affirmed.
    E. N. Pugh, of Donaldsonville, Lawrence Pugh, of Thibodaux, J. C. & Thos. Gilmore and Carroll & Carroll, all of New Orleans, and J. Sully Martel, of Franklin, for appellants.
    E. Howard McCaleb, of New Orleans, for appellees.
   On Application for Rehearing of Motion to Dismiss Appeal.

O’NIEDL, J.

We discover that the motion filed in this case, to dismiss the appeal, is based upon grounds that are not at all appropriate to the present appeal, but are appropriate to the appeal in the case of the same title, bearing the number 22720 of the docket of this court. 142 La. 462, 77 South. 117. And we observe that the motion to dismiss the appeal in the case No. 22720 is based upon grounds that are not appropriate to that case, but are appropriate to the present appeal. We assume that the motions were placed in the records of the cases to which they were appropriate, respectively, and not in the records bearing the numbers indorsed on the motions, respectively. Each motion, being appropriate to the case in which it was found, was considered and disposed of as if it had been filed in that case, without observing that each motion bore a number of a case to which it was not appropriate.

The motion which, in its title and in the indorsement, bears the number of the present appeal, is therefore untenable and must be overruled. The appellants’ right to a suspensive appeal was disposed of adversely to them by the decision rendered in the case No. 22689, M. P. Doullut et al. v. Mary Rush et al., In re M. P. Doullut et al., Applying for Certiorari, etc., 142 La. 443, 77 South. 110, in which a rehearing was denied to-day.

The decree dismissing the present appeal is annulled, and the motion to dismiss the appeal is overruled.

On the Merits.

O’NIELL, J.

The issues presented in this appeal were considered and disposed of when the case was before us on a writ of certiorari. See Doullut et al. v. Rush et al., In re Doullut et al., 142 La. 443, 77 South. 110, for a complete statement of the facts and issues in the case. The decree then rendered merely denied the defendants a suspensive appeal and ordered execution of the judgment appealed from. Dut the question on which the decision turned was whether the contract sued on was a lease, as contended by plaintiffs, or a sale, as contended by defendants. We decided that it was a contract of lease, and that is the only question on which we are required to render judgment now, on the merits of the case. The judgment which we have already given on that question is the settled law of the case. We would now affirm the judgment appealed from, however, for the reasons given in the certiorari proceedings, even if we were not committed to that opinion.

For the reasons given in the case referred to, the judgment is affirmed.

DAWKINS, J., takes no part. '  