
    (95 South. 706)
    No. 25476.
    CITY OF NEW ORLEANS et al. v. HOWCOTT et al.
    (Feb. 26, 1923.)
    
      (Syllabus by Editorial Staff.)
    
    1. Appeal and error <§=> 1207(1) — 'Trial court’s only function was ministerial one of executing judgment of appellate court.
    Where Court of Appeal rendered final judgment dismissing suit, it was at an end, and the only function remaining to the trial court was the purely ministerial one of executing that judgment.
    2. Appeal and error <§=»I207(I) — After judgment of appellate court dismissing suit on exception, trial court had no jurisdiction to render judgment for possession.
    Where Court of Appeal dismissed possessory action on exception of misjoinder of parties, trial court was without jurisdiction to proceed to trial of other issues and render judgment for defendant for possession.
    3. Appeal and error <©=> 185(1)—Immaterial that point was not urged' below where it was jurisdictional.
    As. trial court was wholly without jurisdiction to proceed to' trial of other issues after Court of Appeal had dismissed the suit by final judgment for misjoinder, it was immaterial that the point was not urged below.
    Appeal from Civil District Court, Parish of Orleans; Fred D. King, Judge.
    Action by the City of New Orleans and others against William H. Howcott and others. From a judgment for defendants, plaintiffs appeal.
    Reversed, and rule dismissed without prejudice.
    Ivy G. Kittredge, City Atty., and Michel Provosty, Asst. City Atty., both of New Orleans, for appellants.
    Won. Winans Wall, of New Orleans, for appellee Quaker Realty Co., Limited.
   ST. PAUL, J.

Plaintiffs brought a possessory action against Wm. H. Howcott and others, who excepted that there was a misjoinder of parties defendant, which exception was maintained, and the suit dismissed by final judgment of the Court of Appeal (8 Orleans App. 54).

Thereafter one of the defendants, overlooking the fact of dismissal as aforesaid, moved for the dismissal of the suit on the ground of abandonment, and for possession of the premises in controversy.

We are of opinion that, when the appellate court rendered its decision dismissing the suit, this last was at an end, and that the only function remaining to the trial court was the purely ministerial one of executing that judgment. State v. Judge, 20 La. Ann. 521.

Had the effect of that judgment been to decree that defendants should be given possession of the property, then of course the trial court might and should have so ordered. But no such consequences followed a dismissal of the suit for a mere misjoinder of parties. And accordingly the trial court was wholly without jurisdiction to proceed to the trial of other issues, in disregard of the judgment of the appellate court dismissing the suit. Indeed, counsel for appellee frankly states that,- when he took his rule in the lower court, he had overlooked the fact that the suit had already been dismissed as aforesaid.

As the matter is jurisdictional, it is of no consequence that the point was not urged by appellant in the court below.

Decree.

The judgment appealed from is therefore, reversed, and it is now ordered that the rule herein taken by the Quaker Realty Company be dismissed, without prejudice, however, to any rights-which mover may have to the possession or ownership of the property in controversy when urged in a proper proceeding.  