Opinion
No. 10909.
November 28, 1967. Rehearing Denied January 11, 1968.
APPEAL FROM TWENTY-SIXTH JUDICIAL DISTRICT COURT FOR PARISH OF BOSSIER, O. E. PRICE, J.
Ford E. Stinson, Benton, for appellant.
J. B. Wells, Bossier City, for appellee.
Before AYRES, BOLIN and BARHAM, JJ.
This suit was filed in April of 1965, seeking a separation "a mensa et thoro" and other relief related thereto. Minute entries reflect the trial of several rules and, finally, the trial of the peremptory exception of res judicata. A judgment overruling the exception of res judicata Was signed and filed February 9, 1965, and defendant has appealed suspensively from that judgment.
The suit has not been tried on its merits nor is there any final judgment in the record. The judgment appealed from is an interlocutory decree and there is no contention or affirmative showing of irreparable injury. Rule 7, Section 5(c), Uniform Rules of Louisiana Courts of Appeal, provides that this Court may, ex proprio motu, "* * * [d]ismiss or transfer the appeal in any case in which the jurisdiction of the court has not been affirmatively established." See Mercadel v. Mercadel, 179 La. 895, 155 So. 391 (1934); Hebert v. Valenti, 179 So.2d 647 (La. App. 1965).
For the foregoing reasons, the appeal prosecuted herein from the judgment of the lower court overruling the exception of res judicata is dismissed. The appellant is to pay all costs incurred as the result of this appeal.