
    No. 8302
    Court of Appeal for the PARISH OF ORLEANS.
    P. J. FLANAGAN, ADMINISTRATOR versus LAND DEVELOPEMENT COMPANY OF LA. LTD.
    
      
    
    Dinkelspiel; J.
   Dinkelspiel; J,

Defendant? files in this court, various grounds _to dismiss this appeal:

1.

That the transcript of appeal was filed too late, the return day for the appeal having been fixed by the Lower Court for June 2nd, 1931, and the transcript was not filed until June 6th, 1931.

II.

^ That this Court is without jurisdiction rations materias.

III.

That the matters and things complained of grow out of a judgment rendered by the Supreme Court of Louisiana and relate to the execution thereof, from which no appeal lies.

IV.

That if an appeal did lie, the appeal should be taken to the Court whose judgment is sought to be executed.

V.

That if this Court oould oonsider the appeal, then the appeal must be dismissed on the further ground that the appellant has not filed a full transcript of the reoord and all prooeedings had; that the transcript begins with an entry, of date January 36th, 1930, "Returned to fifa".

VI.

That there is nothing to show what took place prior to that date or prior to the return of said fifa.

VII.

That according to the petition of appeal the judgment or orders complained of are one rendered July 19th, 1930 and one rendered June 35th, 1939, neither of which judgments have been signed and no appeal can he taken from an unsigned judgment.

VIII.

That it further appears from said judgments or orders'that neither of them or appealable, one of said judgments relating to the annullment of an order transferring the case to another division of the Distriot Court and no appeal lies from suoh a judgment; the other is from a judgment maintaining exceptions to a rule to set aside a fifa issued in accordance with a final judgment of Court.

We have oopied verbatim the motion to dismiss substantially this appeal for the reason that it appertains/to the same subject matter decided by this Court at its last term and will be found under the No. 8383 in the Sucoession of Emma Williams, widow of Johness V. Martin, and on application for a rehearing, this Court issued the following order:

"Let this application for a rehearing be filed; let the rehearing stand refused for the present without prejudice however, to the right of appellee to urge his motion again when the oase is argued on the merits."

The Land Developement Company obtained a judgment against the Sucoession of Emma Williams, widow of Johness V. Martin.

there was In the exeoution of said judgment/tksxtsnst issued a fifa against the said Company on which it realized an amount insufficient to pay its judgment. In the meantime the Sucoession of Martin filed suit against the Company for a oertain amount. The Sucoession of Martin had been opened in Division "E".

In order to satisfy the balance due upon this there was Issued judgment/tiKkjjjfiuaxtickbaoauBS an alias fiji& against the Suo-oession of Martin under which writ it seized the claim in the suit of Flanagan, Administrator, versus the Land Developement Company, which is the suit presently before us.

Proceedings were carried on .in both Divisions "A" and "E" and orders rendered in both divisions and finally Division "A" ordered that no ííjía. oould be issued against the Succession of Martin and the Succession has appealed and also appealed from the order of transfer and asked that the writs of fi(fa be quashed.

At the time the Succession of Martin appealed neither of the above judgments, either in Division "A" or "E<! were signed, before the toansorlpt haa been fixed, but before the motion to dismiss was made the judge nuno pro tunc signed the judgment, refusing to quash the fifa.

The Succession has appealed from both judgments.

This motion presents question to dismiss this appeal upon the grounds -«hat the judgment was not signed cftxfc at the time this appeal had been taken.

As to the judgment quashing tne fjjfa, we consider that it was a final definitive judgment inflicting an irreparable injury upon the Succession and that it allowed the assets of the Succession to be sold and that judgment must be signed.

Hanohey vs. St. Louis, I. M. & S. Ry. Co. 135 La. p, 351, where in its syllabus, oiting authorities says:

"This Court has no appellate jurisdiction of a oase until a final judgment is signed in the oourt below. Therefore, when theattention of the oourt is called to the fact that the judgment of the district oourt was not signed before the transoript of appeal was filed in this court, the appeal must be dismissed."

State ex rel. Stewart, Dis't. Att'y. vs. Reid, Vol. 115 La. p. 595.

For the reasons assigned it is ordered, adjudged and decreed that the motion to dismiss this appeal must be sustained.  