Benham, Ziegler & Co., Inc. v. Mouledoux

• Decision Date: 31 October 1932
• Docket Number: 31949
• Citation: 175 La. 711,144 So. 428
• Parties: BENHAM, ZIEGLER & CO., Inc., v. MOULEDOUX. In re MOULEDOUX
• Court: Louisiana Supreme Court

144 So. 428

175 La. 711

BENHAM, ZIEGLER & CO., Inc., v. MOULEDOUX.

In re MOULEDOUX

No. 31949

Supreme Court of Louisiana

October 31, 1932

Dart &amp Dart and H. Grady Price, all of New Orleans, for applicant.

Percy H. Moise and Rosen, Kammer, Wolff & Farrar, all of New Orleans, for respondent.

OPINION

OVERTON, J.

This case comes to us on a judgment, rendered by the Court of Appeal for the parish of Orleans, dismissing an appeal from a judgment rendered by the civil district court for the parish of Orleans, because the judgment rendered by that court was not a final judgment, and because it is not such an interlocutory judgment as may work irreparable injury.

The dispute over which the litigation arises is tersely and correctly stated by the Court of Appeal as follows:

'Plaintiff corporation contends that it entered into a verbal contract with defendant, under which each party was to furnish a certain number of bags of red beans, which were to be thus 'pooled' and sold for the common advantage of the two parties, and that, as a result of the alleged joint adventure, defendant is indebted to plaintiff in the sum of $ 266.35 and in such further sum as an accounting may show to be due on another related transaction.

'Defendant denies that there was any agreement to enter into a joint adventure, and, in fact, avers that the contracts and agreements entered into contemplated merely purchases by one from the other of red beans.' Benham, Ziegler & Co Inc., v. Mouledoux (La.App.) 141 So. 487, 488.

The judgment of the district court, which the Court of Appeal had before it, reads as follows:

'It is ordered, adjudged and decreed that Gabriel J. Mouledoux defendant herein, file in these proceedings, within twenty days from February 11, 1932, a full and detailed accounting of the sales made by said defendant of the 1364 bags of red beans, sold by defendant in connection with the joint adventure between plaintiff and defendant.'

The Code of Practice, art. 538, defines an interlocutory judgment to be one which does not decide on the merits, but is one pronounced on preliminary matters, in the course of the proceedings, and a final judgment (Code of Practice, art 539) to be such a one as decides all the points in controversy between the parties, and has the force of the thing adjudged. It will be noted that the codal definitions of interlocutory and final judgments omit a class of judgments, which, it may be said, the Code nowhere seems to classify, namely, those which decide one or more matters on the merits of the case, while leaving other matters on the merits undecided. Illustrations of this class may be found in the case of Cary v. Richardson, 35 La.Ann. 505, relied upon by relator, and in that of Garland v. Dimitry, 164 La. 875, 114 So. 718, which calls attention to this omission. When such judgments come before this court, the court must classify them, as relates to the right of appeal, in one of these two classes, and, in the Cary and Garland Cases, the court...