Opinion
No. 3957.
December 1, 1969.
APPEAL FROM CIVIL DISTRICT COURT FOR PARISH OF ORLEANS, NO. 495-032, DIVISION "F", A. E. RAINOLD, J.
Walter F. Gemeinhardt, New Orleans, for plaintiff-appellee.
Morphy Freeman, A.D. Freeman, Jr., New Orleans, for defendant-appellant.
Before REDMANN, BARNETTE and DOMENGEAUX, JJ.
Appellee moves to dismiss this appeal on the ground that this court has already rejected the defenses of appellant to this eviction action in a previous appeal between the same parties, reported at 223 So.2d 686.
Our prior judgment was in favor of defendant, although our opinion obiter said certain of defendant's defenses were not valid. Apart from obvious questions of the binding effect of obiter dicta, especially in favor of a party against whom judgment was in fact rendered, we cannot on motion to dismiss give the full appellate review necessary to decide whether the issues on this appeal are the same as those on a prior appeal, and decide whether our prior dicta should now become holding. This is the merits of the appeal. (See Black v. Meadowview Homes, Inc., 201 So.2d 218, 219 (La.App. 1967), for its view of the analogous problem of res judicata.)
The motion to dismiss is accordingly denied.
Motion to dismiss denied.