Garland v. Dimitry

• Decision Date: 31 October 1927
• Docket Number: 28763
• Citation: 114 So. 718,164 La. 875
• Court: Louisiana Supreme Court
• Parties: GARLAND v. DIMITRY et al

114 So. 718

164 La. 875

GARLAND v. DIMITRY et al

No. 28763

Supreme Court of Louisiana

October 31, 1927

The rule made absolute, and the respondent judge ordered to grant the appeals prayed for.

M. D Dimitry and George T. McSween, Jr., of Shreveport, for relators.

Thigpen Herold, Lee & Cousin, of Shreveport, for respondent.

OVERTON J. O'NIELL, C. J., takes no part.

OPINION

OVERTON, J.

Plaintiff, a practicing attorney, brought suit against M. D. Dimitry, who is also a practicing attorney, and against the heirs of Mrs. Florence A. Toombs, deceased, in which he alleges that the legal heirs of Mrs. Toombs employed Dimitry to recover their interest in her estate, and agreed to pay Dimitry for his services, rendered and to be rendered, an amount equal to 50 per cent. of the amount recovered; that Dimitry, with the knowledge and approval of said heirs employed plaintiff to represent them; that Dimitry agreed that plaintiff should receive out of his fee an interest equivalent to one-half of the net amount receivable by him; and that he, plaintiff, discharged his duties under said contract, and is entitled to said interest and to a privilege to secure the same on the judgment and on the property recovered for said heirs. The prayer of the petition is that plaintiff recover judgment against Dimitry and said heirs for one-half of such amount as represents 50 per cent. of the value of all the property recovered, after deducting the costs and expenses legitimately incurred and paid by Dimitry in the prosecution of the litigation for the recovery of said property, and to this end that an accounting be had, and that plaintiff's privilege, as an attorney at law, for the amount of said fee be recognized and enforced on all the property and funds recovered.

Issue was joined by the defendants, the case was tried, and judgment rendered and signed as follows:

"That the plaintiff, Albert P. Garland, do have and recover judgment against the defendant M. D. Dimitry in a sum equal to one-half of the amount receivable by said Dimitry under the contracts entered into between the legal heirs of Mrs. Florence A. Toombs, deceased, and the said M. D. Dimitry [here follows a description of the contracts] subject to reimbursement first to the said Dimitry of all costs and expenses legitimately incurred and paid by the said Dimitry in the prosecution of the litigation referred to in the petition out of the entire amount before division of the proceeds.

"That said plaintiff, Albert P. Garland, do have and recover judgment against the legal heirs of Mrs. Florence A. Toombs, deceased [here follows their names] recognizing said Garland's lien and privilege as an attorney at law under the said contracts upon the property described in article 18 of the original petition for an amount equivalent to one-half of one-half of the proceeds of the sale of said property in the event same be sold by judicial process, and likewise upon all funds in the hands of the clerk or the sheriff belonging to the said legal heirs of Mrs. Florence A. Toombs, deceased, as well as the funds in the hands of C. B. Hoffert, and all other persons, firms, and corporations, less one-half of the costs and expenses legitimately incurred and paid, or that may be paid, by said M. D. Dimitry in the prosecution and defense of the litigation under which such property and funds were recovered; the judgment against said legal heirs of Mrs. Florence A. Toombs, deceased, being wholly in rem, said immovable property being specifically described as follows, to wit: [here follows a description of the property].

"That the defendant C. B. Hoffert be and he is hereby ordered to pay into the registry of this court the funds and amounts in his hands belonging to the heirs of Mrs. Florence A. Toombs, deceased.

"It is further ordered, adjudged, and decreed that this cause be and the same is hereby left open and jurisdiction hereof retained for the purpose of further and ancillary proceedings herein to secure an accounting from the said M. D. Dimitry of the costs and expenses legitimately incurred and paid by him in the prosecution and defense of the aforesaid litigation, and which under this judgment are to be repaid out of the fee, equivalent to the value of one-half of the property, before division of the proceeds between said Garland and said Dimitry."

After said judgment was signed, and within the delays prescribed by law for the taking of a suspensive appeal, relators herein applied for such an appeal and also for a devolutive appeal. The trial judge refused to grant these appeals. Dimitry and the heirs of Mrs. Toombs then applied to this court for writs of certiorari, prohibition, and mandamus, upon which application a rule nisi was issued and the trial judge ordered to send up the original record.

The judge has made his return in which he states substantially, giving his reasons for so stating, that the judgment is neither a final judgment nor an interlocutory order or decree, which may work irreparable injury, and hence is not appealable.

Article 565 of the Code of Practice provides that:

"One may appeal from all final judgments renderedin causes in which an appeal is given by law, whether such judgments have been rendered after hearing the parties, or by default."

Article 566 of the Code of Practice provides that:

"One may likewise appeal from all interlocutory judgments when such judgment may cause him an irreparable injury."

Article 538 of the Code of Practice defines interlocutory judgments as follows:

"Interlocutory judgments do not decide on the merits; they are pronounced on preliminary matters, in the course of proceedings."

Article 539 of the Code of Practice defines definitive or final judgments as follows:

"Definitive of final judgments are such as decide all the points in controversy between the parties.

"Definitive judgments are such as have the force of res adjudicata."

It will be observed that while the Code of Practice, in effect, defines an interlocutory judgment as one not deciding on the merits, and a final or definitive judgment as one which decides all the points in controversy, and makes provision relative to appeal as to each class, yet it does not classify judgments which pass on parts of the merits, and makes no provision relative to appeals from them. The court probably had this in mind, when in the case of Cary v. Richardson, 35 La. Ann. 505, in passing on a motion to dismiss an appeal on the ground that the judgment was not appealable, it said:

"An interlocutory judgment should not trench upon the merits of the cause; but the moment that it does, it acquires a character of finality, which assimilates it to a final judgment and renders it appealable. It is not essential for a judgment to be final, that it should settle all the rights existing between the parties to the suit. All that is required is, that it determine issues involved on the merits of the action. The judgment is none the less final, because some future orders of the court may become necessary to carry it into effect. The nature of such an order depends upon the effect produced by the adjudication upon the rights and interest of parties. The stage at which it is made is not the test for appellate purposes. If an interlocutory order will finally affect the merits of the case, or deprive a...