Bertoniere v. Savoure , 163 La. 1073 ( 1927 )

On Motion to Dismiss. On January 6, 1926, the Rev. Louis Savoure, residing in the parish of Pointe Coupee, deposited with the bank of New Roads the sum of $16,500 "for account of the Roman Catholic Church of Chenal," and as an evidence thereof received from the depositary a time certificate of deposit bearing 4 per cent. per annum interest, and maturing on January 6, 1927.

Shortly before the maturity of the obligation, upon the application of one S.E. Bertoniere and a number of other persons, residents of the parishes of Pointe Coupee and West Baton Rouge, setting up certain rights in the fund, the depositary and the depositor were ordered to show cause by the judge of the district court why an injunction should not issue to restrain the depositary from paying over the amount represented by the certificate of deposit to the depositor or his assignee. The rule was tried on exceptions, six in number, filed by respondent Rev. Louis Savoure. Three of these exceptions were overruled, and three were maintained, viz. misjoinder of parties plaintiff, no right or cause of action, and that plaintiffs were without right to stand in judgment. The suit was dismissed, and from the judgment some 22 of the plaintiffs appealed devolutively, and their appeal is now pending in this court under No. 28288 of the docket.

On January 4, 1927, two days before its obligation became due, the Bank of New Roads instituted a proceeding in the district court, in which it impleaded S.E. Bertoniere and certain of his coplaintiffs in the injunction suit and the Rev. Louis Savoure. In its petition, the said bank referred to the aforesaid injunction suit, and averred that certain plaintiffs in said suit had served upon it an affidavit, purporting to be based on Act. 90 of 1926, in which they claim rights in the fund, and notifying petitioner not to pay it over to the Rev. Louis Savoure. The petitioner further averred that it was not desirous of assuming the responsibility of paying over the fund to the Rev. Louis Savoure upon the surrender of the certificate, nor, on the other hand, was it desirous of assuming the responsibility of refusing to honor the certificate when it was presented for payment at its maturity. Petitioner, accordingly, deposited the fund in the registry of the court, in order that the respective rights and claims of S.E. Bertoniere and his coplaintiffs and of the Rev. Louis Savoure might be judicially determined. The defendants filed their answers, and the case was tried, resulting in a judgment, rejecting the demands of S.E. Bertoniere and his associates, and ordering the clerk of court to pay over the fund to the Rev. Louis Savoure. Bertoniere and his codefendants in the suit appealed suspensively and devolutively from the judgment. The transcript was lodged in this court on February 24, 1927, and on the next day the Rev. Louis Savoure filed a motion to dismiss the appeal, on the ground that it is between the same parties and involved the same issues as the case of Bertoniere et al. v. Savoure, No. 28288 of the docket of this court, and which case, when decided, will determine all the rights of the parties; and on the further ground, that this appeal was taken solely for the purpose of delay and to deprive appellee of the use of the fund in the completion of the new church which is now under construction by him.

The motion to dismiss cannot prevail. The first ground urged by mover fails to disclose any defect, error, or irregularity in the taking of the appeal, or in the filing of the transcript in this court. Lavergne v. Roussel, 139 La. 915, 72 So. 453. Moreover, the first appeal is from a judgment the effect of which was to refuse plaintiffs an injunction, without determining the ownership of the fund in dispute, whereas in the present appeal the whole case is brought up and can be finally disposed of. It may be that the appeals should be consolidated by an appropriate proceeding in order to bring about an early determination of all the issues between the parties, but neither can be dismissed because of the pendency of the other.

Appellee's objection that the appeal was taken merely for delay is no ground for its dismissal. Code Prac. art. 907; National City Bank v. Barringer, 139 La. 630, 71 So. 894.

The motion to dismiss the appeal is therefore denied.

BRUNOT, J., takes no part.

On the Merits.