Opinion
No. 3061.
February 2, 1949.
Appeal from Thirteenth Judicial District Court, Parish of Evangeline; J. Cleveland Fruge, Judge.
Suit for injunction by Gasoline Plant Construction Corporation against Darrell H. Blair, Business Manager, Building and Construction Trades Council, of Lake Charles, La., and vicinity, and in affiliation with building and construction trades department, American Federation of Labor, and others. From a judgment sustaining exception to jurisdiction with respect to defendants' motion to dissolve a preliminary injunction previously granted, and dismissing the motion, the defendants appeal.
Judgment affirmed.
See also La. App., 38 So.2d 657.
Tate Fusilier, of Ville Platte, and Hirsch Green, of Baton Rouge, for appellant.
E. Herman Guillory, of Ville Platte, for appellees.
This matter is entitled "Supplemental Transcript" and is given the same docket number and title as the original transcript. The record discloses that on the 30th day of July, 1948, the defendants filed a motion to dissolve a preliminary injunction which was granted on the 14th day of April, 1948, and from which defendants secured a devolutive appeal on April 19, 1948, and which was at the date of the filing of the motion to dissolve, lodged on appeal in this Court, the First Circuit Court of Appeal.
The Court had originally signed an order making the rule returnable on August 14, 1948. On motion of the plaintiff, Gasoline Plant Construction Corporation, through its executive officer, B. A. Padon, in proper person, a continuance was granted until September 15, 1948. On the 15th of September, 1948, plaintiff, through its counsel, excepted to the jurisdiction of the District Court on the ground that the defendants and appellants had perfected a devolutive appeal to this Court, and, therefore, the District Court was divested of all jurisdiction in the case except for the purpose of attesting the sufficiency or legality of the appeal bond furnished by the defendants-appellants for said appeal, the latter provision not being at issue.
It is well settled that upon the perfection of an appeal in any case, the lower court becomes divested of all jurisdiction in the case and cannot grant a new trial nor set aside the judgment from which an appeal has been taken and perfected. State ex rel. Temple v. Vernon Parish School Board, La. App., 178 So. 176; Board of Com'rs. Fifth Levee Dist. v. Howard Land Timber Co., 132 La. 911, 61 So. 868; Jaenke v. Taylor, 161 La. 996, 109 So. 814; State v. Himel, Judge, La. App., 176 So. 413; Mundy v. Phillips, 157 La. 445, 446, 102 So. 519; Davidson v. Richard McCarthy Co., La. App., 166 So. 504; Horton v. Western Union Tel. Co., La. App., 200 So. 44; Mistich v. Holman, 205 La. 171, 17 So.2d 23.
In the present case the record shows an order of appeal was granted to the First Circuit Court of Appeal on April 19, 1948, bond fixed and furnished by the defendants on April 29, 1948. On June 11, 1948, the transcript was lodged in this Court. Therefore, under the jurisprudence, the District Court was divested of all jurisdiction except for the purpose of testing the sufficiency of the bond filed by the defendants.
We are therefore of the opinion that the judgment of the Lower Court in sustaining the exception to the jurisdiction and dismissing the defendants' motion was correct and it is accordingly affirmed at defendants' costs.