
    James N. STEVENS, Plaintiff-Appellee, v. DAIGLE & HINSON RAMBLER, INC., Defendant and Third-Party Plaintiff-Appellant, v. AMERICAN MOTORS CORPORATION, and American Motors Sales Corporation, Third-Party Defendants-Appellees.
    No. 5807.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 9, 1962.
    Rehearing Denied Dec. 14, 1962,
    
      A. J. Spedale, Baton Rouge, for appellant.
    James M. Piper, Jr., Baton Rouge, for appellees.
    Before ELLIS, LOTTINGER, HER-GET, LANDRY, and REID, JJ.
   REID, Judge.

This matter is before the Court on a motion to dismiss the appeal as to the third party defendants. Plaintiff, James N. Stevens, filed this suit against Daigle & Hinson Rambler, Inc. The defendants filed an answer and a third party petition seeking to bring into Court -under a call in warranty American Motors Corporation and American Motors Sales Corporation.

The third party defendants filed exceptions of no cause and no right of action and on December 18, 1961 the Lower Court rendered judgment sustaining these exceptions and dismissing the third party complaint. This judgment was rendered and signed on December 19, 1961. No motion for a new trial was made and no appeal was taken from this judgment at that time. The case was subsequently tried between the plaintiff and the original defendant on its merits and judgment was rendered against Daigle & Hinson Rambler Inc., on May 14, 1962. Defendant, Daigle & Hinson Rambler, Inc., appealed from this judgment and sought to appeal from the judgment of December 19, 1961. The appeal bond was posted and the appeal lodged in this Court on July 12, 1962.

Thereafter the third party defendant, American Motors Corporation and American Motors Sales Corporation filed this motion to dismiss the appeal as to these third party defendants contending that no devolu-tive appeal having been taken from the judgment of December 19, 1961 within the delay provided by law, said judgment of December 19, 1961 was final and therefore unap-pealable.

There is no question but what the appeal was taken more than 90 days after signing of the judgment and the delay for applying for a new trial. An appeal may be taken from the final judgment rendered in causes in which appeals are given by law where rendered after hearing, or by defendant from an interlocutory judgment which may cause irreparable injury. Article 2083 LSA-C.C.P. The delay for taking a devolu-tive appeal is provided by Article 2087 LSA-C.C.P., which reads as follows:

“Except as otherwise provided by law, an appeal which does not suspend the effect or the execution of an ap-pealable order or judgment may be taken, and the security therefor furnished, only within ninety days of:
“(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
“(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
“(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.”

There is nothing in the record to show that any motion for new trial was filed. The delays, therefore, of filing a motion for a new trial have long since expired, and the question now before the Court is whether the judgment sustaining the exceptions of no cause or right of action to the third party petition is a final and definitive judgment or an interlocutory decree.

The motion to dismiss is based on the proposition that a judgment sustaining exceptions of no cause and no right of action is a final and definitive judgment.

Article 1841 LSA-C.C.P. sets out the difference between interlocutory and final judgments, as follows:

“A judgment that does not determine merits but only preliminary matters in the course of the action is an interlocutory judgment. A judgment that determines the merits in whole or in part is a final judgment.” See Thompson v. Bamburg, 231 La. 1082, 93 So.2d 666; Gladney v. Webre, 230 La. 175, 88 So. 2d 17; Perot v. United States Casualty Company, La.App., 98 So.2d 584; Clement v. Pointe Coupee Parish School Board, La.App., 75 So.2d 890.

Our Courts have held that a judgment dismissing a suit as to two defendants on exceptions of no cause or right of action was an appealable final judgment notwithstanding the fact that an exception filed by another defendant was referred to the merits.

In this suit the plaintiff in the third party demand contends that the judgment sustaining the exceptions of no cause or right of action to the third party petition was an interlocutory decree and an appeal was proper as to the said judgment when taken after the case had been tried on the merits and a judgment rendered and signed. They contend that the third party petition and call in warranty comes under the decision holding that a call in warranty is an interlocutory decree and relies on two cases, namely, Blanchard et al. v. Norman-Breaux Lumber Company, 216 La. 551, 44 So.2d 112, and Vance v. Noel, 143 La. 447, 78 So. 741.

These two cases were decided before the adoption of the Louisiana Code of Civil Procedure. Article 1111 of the LSA-Code of Civil Procedure provides that a defendant may bring in a third person who' is a warrantor or who may be liable to him for all or part of the principal demand. The official revision comments under this Article states that “probably the most radical change made in Louisiana’s procedural law in recent years was effected by La. Act 433 of 1954 discarding the call in warranty and adopting the third party action based largely upon the third party practice of federal procedure.” Therefore, under the provisions of this Article the old call in warranty provided by the Civil Code of Procedure of 1870 is no longer in effect and a defendant has to get his warrantor in Court by a third party petition.

It is suggestive that in the two decided cases relying on the third party petitioner were cases between the original plaintiff and defendant and in neither case does the war-rantor or third party defendant take any active steps to strike out the call in warranty.

In Blanchard v. Norman-Breaux Lumber Company, supra, the District Judge refused to allow the defendant to call its vendor in warranty and rendered judgment in favor of the plaintiff and the defendant appealed. The Supreme Court reversed this decision and held that denying the defendant the right to call its vendor in warranty was in error.

In the case of Vance v. Noel, supra, the defendants being sued for a partition, in the answer denied part ownership in plaintiff and part ownership in themselves and averred further that they had acquired their interest from a third party and asked that this third party he called in warranty to defend the suit. The plaintiff alleging that this is a summary proceeding and that the defendant had no right or authority to make the call in warranty moved the Court to strike the same from the answer and that the order allowing same be recalled and rescinded within order was granted. In this case the Court likewise reversed the judgment of the Lower Court and ordered the call in warranty reinstated.

We think that these two cases are not in point because in the instant case the third party defendants themselves filed exceptions of no cause and no right of action They took an affirmative step to defeat the third party petition and call in warranty and we believe that the judgment sustaining the exceptions of no cause or right of action is final and not interlocutory.

Third party defendant in support of its motion cites the cases of Wheless v. Kelly’s Truck Terminal, La.App., 131 So.2d 142, and Perot v. United States Casualty Company, La.App., 98 So.2d 584. The case of Wheless v. Kelly’s Truck Terminal, supra, holds that a judgment sustaining exceptions by improper accumulation and misjoinder filed by a third party defendant is final and appealable.

The case of Perot v. United States Casualty Company, La.App., 98 So.2d 584, the defendant sought to implead a third party defendant who filed exceptions of no cause and no right of action. These exceptions were sustained and the demands of the third party plaintiff rejected at their costs. There was judgment in favor of the plaintiff in the original cause and the defendant appealed. The third party defendants asked that any appeal against them be dismissed. The plaintiff there made the same argument as in the instant case, that the judgment was interlocutory and that it could be only urged by appeal from the final judgment on the merits. The Supreme Court, however, held that the judgment sustaining the exceptions was a final judgment as regards the third party plaintiff and third party defendant and there had been no appeal taken from such judgment.

For these reasons we are of the opinion that the motion to dismiss the appeal filed by the third party defendants is good and should be sustained and accordingly the said appeal is dismissed insofar as they are concerned.

Motion to dismiss appeal sustained.

HERGET, Judge

(dissenting).

Plaintiff, James N. Stevens, instituted a redhibitory action against defendant, Daigle and Hinson Rambler, Incorporated on April 26, 1961 growing out of a purchase of a new 1961 Rambler super station wagon from Defendant. An answer was filed by Defendant denying liability to Plaintiff and calling in warranty its vendors, American Motors Corporation and American Motors Sales Corporation. On August 29, 1961 counsel for third party defendants, American Motors Corporation and American Motors Sales Corporation filed exceptions of no cause and no right of action to the third party demand. Defendant Daigle and Hin-son Rambler, Inc. on the 9 day of November, 1961 likewise filed exceptions of no cause or right of action to Plaintiff’s petition. A certified copy ,of the minutes of the court reveals that on' ‘October 27, 1961 the matter was “Assigned on the exceptions for Monday, November 6, 1961, * * It is apparent this assignment could have only been as to the exceptions filed by Third Party Defendants as Defendant had not at that time filed its exceptions. The minutes further reflect that on November 6 “This matter was taken up on the peremptory exceptions to the 3rd party demand and call in warranty. The exception was argued and submitted to the Court on briefs to be filed, by exceptor on November 7, 1961 and by 3rd party plaintiff on November 10, 1961.” The certified copy of the minutes reveals that on December 6, 1961 the matter was “Assigned on the exceptions for Monday, December 11, 1961, A. J. Spedale to be notified.” Mr. Spedale being counsel for Defendant, this assignment apparently was on the exceptions filed by him heretofore referred to. The minutes further reflect that on December 11, 1961 the case was passed and reassigned for Monday, December 18, 1961. On December 18, 1961 according to the certified copy of the minutes: “This matter was taken up on the peremptory exceptions filed herein. The exceptions were argued by counsel and submitted to the Court. Whereupon, for oral reasons assigned the peremptory exception based on no cause of action filed herein by American Motorists and American Motorists Sales Corporation against the third party demands of Daigle & Hinson Rambler Company is maintained, and the third party demands against exceptor are dismissed. The peremptory exception based on no cause of action filed herein by Daigle & Hinson Rambler Company as to the demands of the plaintiff James N. Stevens is overruled.” It therefore appears on that date the matter was taken up on (1) the exceptions of no cause and no right of action filed by Defendant to Plaintiff’s petition, and (2) on the exceptions of no cause or right of action filed by Third Party Defendants to the original call in warranty demands of Third Party Plaintiff. On December 19, 1961 the minutes reflect judgment was signed and filed in accordance with the judgment rendered December 18, 1961. On September 13, 1961, prior to the decision of the Court on the exceptions filed by American Motors Corporation and American Motors Sales Corporation against the third party demands of Defendant, the Defendant filed a “Supplement and Amending Answer and Action against Third Party” alleging that Third Party Defendants, among other things, assumed all responsibilities and led Defendant to believe that the warranty from Defendant to Plaintiff was “ * * * no more no less, as that which existed between respondent and third party defendants.” A “Second Supplemental and Amending Answer and Action against Third Party” was filed by Daigle and Hinson Rambler, Inc. — Defendant and Third Party Plaintiff in this suit — on November 10, 1961 wherein Defendant and Third Party Plaintiff alleged facts on which it pled Third Party Defendants were es-topped from disclaiming liability of the claims asserted by Plaintiff against Defendant. No answer or any other pleading was filed by Third Party Defendants to either the first or second third party petitions filed by Defendant against them and there is no judgment in the record of the trial Court resolving the issues raised by Defendant and Third Party Plaintiff in said pleadings. On April 27, 1962 following a trial of the merits — in which trial American Motors Corporation and American Motors Sales Corporation did not appear inasmuch as the judgment on the exceptions to Defendant’s third party action had been sustained and they had been dismissed by the judgment referred to supra of date December 19, 1961 — judgment was rendered in favor of the plaintiff, James N. Stevens and against Daigle and Hinson Rambler, Inc., rescinding and setting aside the sale of the 1961 Rambler super station wagon for redhibi-tory defects and awarding Plaintiff judgment for the purchase price, together with legal interest thereon from date of judicial demand until paid and all costs. The minutes of May 17, 1962 reflect: “On motion of counsel for defendant an order of sus-pensive and in the alternative devolutive appeal from the judgment of May 14, 1962, and an order of devolutive -appeal from the judgment of December 19, 1961, were entered herein, returnable to the Court of Appeal, First Circuit, on July 13, 1962; the devolutive appeal bond and/or bonds being fixed at $250, and suspensive according to law.”

The appeals were timely lodged in this Court. On August 16, 1962 counsel for American Motors Corporation and American Motors Sales Corporation filed in this Court a motion to dismiss the appeal as to Third Party Defendants-Appellees predicated on the contention the judgment of the trial Court sustaining the exceptions of no cause or right of action signed on the 19 of December, 1961 dismissing the demands of Daigle and Hinson Rambler, Inc., Third Party Plaintiff, against movers was a final judgment and inasmuch as the delays provided by LSA-C.C.P. Article 2087 had tolled prior to the appeal of Defendant and Third Party Plaintiff this appeal should be dismissed as to Third Party Defendants.

From the record we have no way of knowing why the trial Court did not resolve the issues presented by Defendant and Third Party Plaintiff in the first and second supplemental petitions referred to; however, as there were no answers or other pleadings filed by Third Party Defendants to said pleadings and the record reflects no action by any counsel of record in the suit raising the issues in the trial Court, it is evident the trial Court properly gave no consideration to these supplemental and amending pleadings as issue was never joined either by the taking of a default by Third Party Plaintiff or by answer and assignment of the case by Third Party Defendants.

Furthermore, though with unadulterated diffidence I disagree with the view of the majority, I am of the firm opinion the judgment of the trial Court on the exceptions of no cause or right of action filed to Third Party Plaintiff’s call in warranty cannot be categorized other than an interlocutory decree, so that the appeal taken by Third Party Plaintiff upon the resolution of the issues finally on the merits was timely. Though under LSA-C.CP. Article 1111 concededly the right to call in warranty has been enlarged so that no longer is it essential that such be grounded on contract, nevertheless the principle remains the same that in the event the trial Court erroneously sustains the exception of no cause of action and thereby dismisses the call in warranty the result would be that the third party defendant would be denied an opportunity to make defenses against the original claim. I am of the opinion from the decisions in Perot v. United States Casualty Company, La. App., 98 So.2d 584 and Blanchard v. Norman-Breaux Lumber Co., 216 La. 551, 44 So.2d 112 that a dismissal of a call in warranty can only be categorized as an interlocutory order, in consequence of which, in fairness to the litigant making the call, upon final conclusion the call was improperly sustained by the trial Court and in fact the party had a right to call his warrantor in, conscience dictates a new trial should be ordered, thereby permitting the person called in warranty to present defenses, if any he might have, to the main demand. As a corollary to this rule, it is self evident the trial Court should not sustain an exception of no cause or right of action to the call in warranty unless such exception is obviously well founded.

Accordingly, I am of the opinion inasmuch as (1) the issues presented in the first and second supplemental third party petitions were never resolved by the trial Court and (2) the sustaining of the exceptions to the call in warranty was an interlocutory order, the ends of justice require that we reverse the judgment of the trial Court sustaining the exceptions of no cause and no right of action and dismissing Defendant’s, Third Party Plaintiff’s demands against Third Party Defendants and remand the case to the trial Court, thereby vesting it again with jurisdiction for the determination of all issues presented.

For these reasons I respectfully dissent.  