
    NO. 7557.
    INTERSTATE TRUST & BANKING CO VS GERLANDO ALFANO.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION.

Ey his Honor John St. Paul.

Tho defendant, appellee here, moves to dismiss this appeal ,under the following circumstances;

\ On October 4th, 1917 plaintiff sued defendant for §1665 ffiSÍíging that defendant had illegally collected certain rent, to wit, rent for the months of January 1914 to January 1917 both inclusive (say 25 months at j;45 por month); same having been paid to defendant by one Henry Capus for tho use of certain premises which plaintiff had caused to be seized for debt by tbe Civil Sheriff, and which were then under seizure as the property of the Succession of Joseph Franck; all of which rent plaintiff claims should have been paid to the sheriff and. applied towards the' discharge of its writ, upon which there still remains due an amount'Mn excess of tho claim herein made.

Defendant filed a plea of prescription of one year.

On January 24th 1913 the trial judge maintained, the plea of prescription as to all the claim for rents prior to the month of October 1910 and rejected, plaintiffs demand as to previous months, limiting plaintiffs claim to the months of October, November and. December 1910 and January 1917; and said judgment was signed on January SOth 1913.

Thereafter defendant answered denying liability for the rent for October, November and December 1916 and January 1917; but lie declined to answer as to the rent for tho prior months o ; the ground that by the judgment aforesaid same had been eli ii oated from the caso and v/as no longer an issue therein.

There was no further action in the case until January 29th 1919. On that day plaintiff discontinued, waived and abandoned its claim for the months of October, November and December 1910 and January 1917, reserving however its right of appeal from the judgment aforesaid* which had been rendered on January 24th 1913 and signed on January 20th 1918.

XX

Ihe motion to ¿lamias ia baaed up'ü the ground th^t^the judgment was not final; that hding interlocutory it he e de a^algniag; and more than one year had elapsed since the rendition thereof when the appeal was taken.

III.

It must he oonceeded that under the jurisprudence the judgment appealed from was not final when rendered, because it did not then dispose of all the issues in the case. Harris vs Stocket, 35 An 387; State ex rel Pflug vs Judge, 35 An 765; Bossier's Heirs vs Hollingsworth & Jackson, 117 La 221.

But it is only in that respect that the judgment was not final, to wit, because it then left other iBauea still to be decided. Otherwise the judgment had the fora and substance of a final judgment.

How it is manifest that the only reason why an appeal is not allowed from a judgment which though final in form and substance as far as it goes, yet does not dispose of all the isuues in the case, is the inconvenience of having numeious appeals in the same case as well as the irregularity involved in splitting up a case so as to have some issue? already pending on appeal whilst other issues are still pending in the trial court. See 117 La 221 (226)

But it must be borne in mind that the right to h- e a preliminary or interlocutory judgment reviewed on appeal at some time or pother exists unimpaired and is only suspended until spch judgnent becomes final by being merged into the last judgment, the one fi whicji disposes of all the issues involved. 117 La 221

Hence where all p ssibility of the inconvenience and irregularity aforesaid ceases, the r-le founded therein must also cease. Oessante ral i one legl3. cessat insa lex.

file essential feature of the whole matter seems therefore to be whether or not, when the appeal is taken,\ the whole case has been finally disposed of in the court below; and it seems to w. that it is ;iuito immaterial under the circumstañeos,whether tliis bo the result o'." a subgeqlient judgment. by tho- court, or be brought about by the act of the parties or either of. them.

April 1919

i'or, turn it and twist it aa you will, the fact remains that tho case then stands with a judgment which effectingly and forever disposes of certain controversies between the parties, and does so adversely to the interests of one of them.

We aro therefore of opinion that where a judgment has the form fl£*)siibstance of a final judgment and is unappealable only because it does not dispose of all the issues in the ease, suoh judgment beuomos final and appealable whenever all the other issues are «. disposed of or eliminated- from the ease whether by action of the court of the partios.

iVe think the judgment appealed from became final and appealhble v/hen plaintiff discontinued its demand for the balance of its claim not previously rejected. By that fact tho judgment then'became the last and only judgment which could be rendered in the case and disposed of all the issues therein. 117 Ig, 221. í‘

/ The motion to dismiss is therefore denied.

Wow Orleans, la,  