Opinion
No. 2708.
April 10, 1967.
APPEAL FROM CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS, NO. 437-579, ALEXANDER E. RAINOLD, J.
Edward F. Wegmann, Fred P. Westenberger, New Orleans, for Lafayette Insurance Co., plaintiff-appellee.
Ernest L. O'Bannon, New Orleans, for Equitable Fire and Marine Insurance Co. of America, plaintiff-appellee.
Dart Dart, Henry P. Dart, III, New Orleans, for defendants-appellants.
Before YARRUT, CHASEZ and SAMUEL, JJ.
The plaintiffs, Lafayette Insurance Company and Equitable Fire and Marine Insurance Company of America brought suit as subrogees against Charles Tassin, Mrs. Charlene Tassin, wife of Thomas Wormack, Thomas Wormack and Melvin Roberts, d.b.a. Esso Service Station, for damages arising out of an accident in which an automobile driven by Mrs. Charlene Tassin, wife of Thomas Wormack, struck the store front of Shoe Town Store at 7777 St. Bernard Highway in the Parish of St. Bernard. This accident occurred in November, 1964, according to the allegations of the petition, and Mrs. Wormack was an unmarried minor at the time. This suit was filed July 1, 1965 in the Civil District Court for the Parish of Orleans.
Charles Tassin, Thomas Wormack and Mrs. Charlene Tassin (Wormack) filed a declinatory exception of improper venue, contending that all of the defendants reside in the Parish of St. Bernard and that the accident occurred in St. Bernard Parish, therefore suit should have been filed there.
Testimony adduced at the hearing of the exception was to the effect that all of the defendants lived in St. Bernard Parish at the time suit was filed, but that Mr. Wormack, the owner of the offending automobile, lived in Orleans Parish at the time of the accident, and moved to St. Bernard Parish in December of 1964. We note therefore that the suit against the defendant, Mr. Wormack, in the Parish of Orleans, even though he had moved to the Parish of St. Bernard, is tenable under the provisions of Article 71 of the Code of Civil Procedure:
"ACTION against individual who has changed domicile
"An action against an individual who has changed his domicile from one parish to another may be brought in either parish for a period of one year from the date of the change, unless he has filed a declaration of intention to change his domicile, in the manner provided by law."
The District Court overruled the exception of venue and the exceptors have appealed. The plaintiffs have filed into this Court a motion to dismiss the appeal on the grounds defendants will not suffer irreparable injury and consequently an appeal does not lie from an interlocutory judgment overruling declinatory exceptions.
The right to appeal is governed by Article 2083 of the Code of Civil Procedure.
"Judgments appealable.
"An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury."
Thus, unless the judgment sought to be appealed is a final judgment, irreparable injury must be shown. The case of Bryant v. X-L Finance Company, 166 So.2d 377 (La.App. 1964) is most pertinent. It ruled on the same question presented here, i.e., whether a judgment overruling an exception of improper venue is appealable. The court held that no appeal would lie as no irreparable injury was shown.
Likewise, under the circumstances here, there is no such showing in this case, although counsel for defendants argues that the defendants will be compelled to undergo the expense of trying the case before the matter of proper venue can be determined in this court. This is insufficient of itself to be considered irreparable injury. The appeal is dismissed, and case remanded.
Appeal dismissed, case remanded.