Opinion
No. 30560.
May 5, 1930.
Appeal from Civil District Court, Parish of Orleans; E.K. Skinner, Judge.
Suit by E.L. Chappuis against Solomon J. Drapekin. Order for defendant, and plaintiff appeals. On motion to dismiss appeal.
Motion sustained.
Delvaille H. Theard, of New Orleans, for appellant.
McCloskey Benedict, of New Orleans, for appellee.
On Motion to Dismiss.
This appeal grows out of a suit upon a promissory note for $8,750, which was executed and delivered to the plaintiff in connection with the following collateral agreement, viz.:
"April 16th, 1927.
"Mr. Sol J. Drapekin, City.
"Dear Mr. Drapekin: I am the owner of your note of even date and due July 1, 1928, of $8750.00, bearing 6% per annum interest payable $43.75 monthly, commencing May 16th, 1927, said note is secured by 300 shares of stock in the Alluvial Orange Lands, Inc.
"You are at liberty to pay this note or part of it at any time and thereby save interest. On July 1, 1928, you can reduce it by paying $625.00 and it will be extended to July 1, 1929, and at that time you can reduce it another $625.00 and it will be extended to July 1, 1930.
"This arrangement, if taken advantage of by you, will make the note on July 1, 1930, $7,500.00, with the same collateral and I will carry same if you desire, until it pays itself out from collection by me of your dividends on said stock in the A.O.L. Inc. Of course you have to pay the monthly interest promptly.
"Cordially
"[Signed] E.L. Chappuis."
The defense to the suit is alleged failure of consideration for the note and misrepresentation and fraud on the part of the plaintiff. To these defenses the plaintiff filed a plea of estoppel, which was referred to the merits, and the case is now pending in the civil district court for trial upon the merits of the issues raised by the petition, answer, and plea of estoppel.
The record discloses that defendant did not pay to the plaintiff the current monthly interest on the note as it accrued, but from month to month, upon orders obtained from the court, deposited the interest payments in the registry of the court, to be there held pending final judgment on the merits of the suit, and thereafter payable to the successful litigant. When the sum of the interest payments thus deposited in the registry of the court amounted to $831.25, the plaintiff ruled the defendant into court to show cause why this sum should not be delivered to him. This rule was heard and denied, and plaintiff appealed from that order.
Defendant has moved to dismiss the appeal for three reasons, viz. that this court is without jurisdiction ratione materiæ; that no appeal lies from an interlocutory order that does not work irreparable injury; and that the proper transcript is not lodged in this court.
Whether or not this court may entertain jurisdiction of a matter involving an amount less than $2,000 which grows out of a suit for a much larger sum need not be considered, for the order appealed from is clearly interlocutory, and, as the money involved is in the registry of the court, beyond the power of defendant to divert it from the purpose for which it was deposited, i.e., to be paid over to the successful litigant, the order appealed from cannot injure the plaintiff or affect, in the slightest degree, any legal right he might have to the fund. The authorities on this point are so numerous we merely cite 1 La. Dig. Appeal, § 100, pp. 308, 309.
For the reasons stated, the motion is sustained, and this appeal is dismissed at appellant's cost.