Opinion
No. 12432.
November 7, 1974.
APPEAL FROM FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO, STATE OF LOUISIANA, HONORABLE JOHN F. FANT, J.
James B. Wells, Bossier City, Dickerson, Bailey Vela by Jack R. Bailey, Houston, Tex., for defendant-appellant.
Hargrove, Guyton, Ramey Barlow by Thomas J. Wyatt, Shreveport, Crowley, Barrett Karaba by Frank A. Karaba, Chicago, Ill., for plaintiff-appellee.
Before AYRES, PRICE and HALL, JJ.
This is an appeal from a judgment signed April 5, 1974, granting the plaintiff, KAR Products, Inc., a preliminary injunction against defendant, Robert L. Robison. Defendant secured an order for a devolutive appeal on April 29th (24 days after judgment) and filed his bond on May 13th (38 days after judgment). KAR has moved to dismiss this appeal as having been untimely filed. Code of Civil Procedure Article 3612 provides in part:
"* * * An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment."
The defendant has obviously failed to comply. Therefore, we dismiss this appeal. See Ruiz v. Succession of Viosca, 291 So.2d 527 (La.App. 1974); In re Frickey, 287 So.2d 807 (La.App. 1st Cir. 1973); Eason v. Sabine Parish School Board, 276 So.2d 367 (La.App. 3rd Cir. 1973); May v. Jackson Brewing Co., Inc., 275 So.2d 201 (La.App. 4th Cir. 1973); Yates v. Egan, 273 So.2d 538 (La.App. 1st Cir. 1973); American Budget Plan, Inc. v. Landry, 187 So.2d 478 (La.App. 4th Cir. 1966).
In opposition to the motion to dismiss, defendant refers us to Calhoun v. State, 152 So.2d 866 (La.App. 3rd Cir. 1963), and Murry v. City of Oakdale, 276 So.2d 368 (La.App. 3rd Cir. 1973), contending that the judgment rendered herein, although styled a preliminary injunction, therefore his appeal is controlled by Code of Civil Procedure Articles 2123 and 2087 rather than Article 3612. We find the cited cases are distinguishable in that the judgment rendered in those actions denied the requested preliminary injunction and dismissed the plaintiff's entire suit.
We do not find the holding in Calhoun or Murry to have any applicability to the instant situation where the posture of this litigation will require a trial of the plaintiff's demand for a permanent injunction. Morris v. Transtates Petroleum, Inc., 234 So.2d 243 (La.App. 2nd Cir. 1970); aff. 258 La. 311, 246 So.2d 183.
For the foregoing reasons the appeal is dismissed. Costs of this appeal are to be paid by appellant.