People of Living God v. Chantilly Corp., 48762

• Decision Date: 19 February 1968
• Docket Number: No. 48762,48762
• Citation: 251 La. 943,207 So.2d 752
• Parties: PEOPLE OF the LIVING GOD v. CHANTILLY CORPORATION and Kesk, Inc.
• Court: Louisiana Supreme Court

Page 752

207 So.2d 752

251 La. 943

PEOPLE OF the LIVING GOD v. CHANTILLY CORPORATION and Kesk, Inc.

No. 48762.

Supreme Court of Louisiana.

Feb. 19, 1968.

James J. Morrison, E. Howard McCaleb III, New Orleans, for plaintiff-appellant.

Chaffe, McCall, Phillips, Burke, Toler & Hopkins, Peter A. Feringa, Jr., Steeg & Shushan, Rader Jackson, New Orleans, for defendants-appellees.

HAMITER, Justice.

This litigation arose out of the construction of a multi-story apartment building at the corner of St. Charles and Jackson Avenues in New Orleans. The plaintiff, a corporation organized under the name of People of the Living God, owns property adjacent to the building site.

In the suit plaintiff seeks damages to improvements located on its property, they allegedly resulting from piledriving operations, subsidence, etc., occurring during the construction work. The damage demand is against the owner of the building site (Chantilly Corporation) and the contractor-builder (Kesk, Inc.). Coupled with that demand is a prayer for an injunction requiring defendants to relocate an air conditioning tower (the operation of which is alleged to constitute a continuing nuisance to the adjoining property) and to remove an underground, untreated, wooden retaining wall (which allegedly interferes with plaintiff's servitude for a party wall and is a termite hazard).

Defendants filed exceptions of lis pendens and improper cumulation of actions, they asserting in the latter that the petition improperly cumulated a demand for injunctions and a claim for damages, all of which allegedly arose from separate causes of action.

The district court sustained the exception of improper cumulation of actions; and it ordered plaintiff to elect, and to amend its petition accordingly, in fifteen days. Within the time allowed plaintiff amended its petition, but the sole effect of the amendment was to delete the demand for an injunction against the owner to abate the operation of the air conditioning tower. The other injunctive and the damage demands remained. Whereupon defendants moved to dismiss the suit for plaintiff's failure to elect. The motion was sustained and the suit dismissed 'without prejudice'. From the judgment of dismissal plaintiff appealed.

In the Court of Appeal plaintiff argued that the dismissal of the suit was improper because the order to elect was ambiguous, and therefore misunderstood by it; and that, consequently, the court should have allowed additional time to amend further rather than to dismiss the suit. It argued, alternatively, that the interlocutory judgment sustaining the exception of improper cumulation and ordering plaintiff to elect was erroneous because, under the circumstances, the joinder of the actions was permissible and proper.

The Court of Appeal held that the order was not ambiguous; that even if it were, plaintiff's remedy was to have asked for a clarification, rather than to fail to obey; and that, therefore, the district court was acting within the scope of its authority (as set forth in Article 933 of the Code of Civil Procedure) when it dismissed the suit without prejudice following plaintiff's failure to amend in accordance with its order. However, the appellate court refused to pass on the question of the validity of the exception of improper cumulation and of the correctness of the interlocutory judgment which sustained it, thereby ordering plaintiff to elect. Accordingly, it affirmed the judgment of the district court. 197 So.2d 748.

We granted certiorari at the instance of plaintiff, but limited our consideration to the question of whether or not the Court of Appeal was correct in holding that the interlocutory judgment (which sustained the exception of improper cumulation) was not reviewable on an appeal taken from the subsequent judgment which dismissed the suit without prejudice following plaintiff's failure to elect. 250 La. 982, 200 So.2d 666.

The general rule undoubtedly is, as stated from time to time by this court, that an interlocutory judgment which does not cause irreparable injury is not appealable. (See also Article 2083 of the Code of Civil Procedure.) But this does not mean that such judgments are never subject to appellate review. It merely means that they are not independently and immediately appealable, and that appellate review thereof must await rendition of an appealable judgment in the cause. There are innumerable sorts of interlocutory judgments which, as such, are not independently appealable--i.e., overruling of pleas of prescription, of non-joinder of parties, of lis pendens, of exceptions of no cause and no right of action, etc. Nevertheless, when a judgment is rendered in the case which is appealable, the reviewing court can then consider the correctness of the prior interlocutory judgment.

Thus, in Templet v. Babbitt et al., 196 La. 303, 199 So. 127 plaintiff was ordered to elect as between two allegedly inconsistent causes of action. Reserving her rights she made such an election, after which the court maintained an exception of no cause of action to the selected demand. On a motion to dismiss the appeal for want of the jurisdictional amount we held that Plaintiff's appeal from dismissal of her suit brought up for review the correctness of the court's ruling forbidding plaintiff to proceed on both demands; and that since the amount involved in the demand which had been deleted was sufficient to give this court jurisdiction the motion to dismiss was not well founded. See also Succession of Williams, 153 La. 206, 95 So.2d 607, Blanchard et al. v. Norman-Breaux Lumber Company, Inc., 216 La. 551, 44 So.2d 112, Stockstill et al. v. Cotten et al., 230 La. 205, 88 So.2d 27 and Breaux v. Laird et al., 230 La. 221, 88 So.2d 33.

In support of its holding the Court of Appeal herein relied principally on the case of Neal v. Hall, La.App., 28 So.2d 131 (Second Circuit). But a careful reading of the opinion therein shows that the court in this cause misinterpreted it. In the Neal case the court did not hold that in All litigation an interlocutory judgment could not be reviewed on an appeal from a subsequent appealable judgment. It merely held that In that case the interlocutory judgment was not reviewable on a subsequent appeal Because the appellant had failed to take the required procedural step at the trial level to preserve his right to appellate review at a later time. (Such procedural step--a reservation of a formal exception to the court's ruling--is no longer required. See Article 1635 of Code of Civil Procedure.)

Also cited by the appellate court herein were La Fleur v. Dupuis, La.App., 147 So.2d 724 and Bogan v. Byrom, La.App., 151 So.2d 718, in both of which the Court of...