Magri v. City of New Orleans

Full title: IRWIN L. MAGRI, JR. v. CITY OF NEW ORLEANS AND NEW ORLEANS POLICE…

Court: Court of Appeal of Louisiana, Fourth Circuit

Date published: Oct 19, 1977

351 So. 2d 1315 (La. Ct. App. 1977)

Opinion

No. 9069.

October 19, 1977.

Sanford Krasnoff, New Orleans, for plaintiff-appellant.

Philip S. Brooks, City Atty., and Michael A. Starks, Asst. City Atty., for defendant-appellee.

Before LEMMON, STOULIG and BOUTALL, JJ.

ON MOTION TO DISMISS

[2] LEMMON, Judge.

On August 13, 1974 plaintiff appealed his dismissal from the New Orleans Police Department to the Civil Service Commission, the appeal bearing Docket No. 748. After the appointing authority filed exceptions of lis pendens, the Commission ruled that plaintiff has a right to a hearing before the Commission, but stayed the proceeding while another suit by plaintiff was pending in federal court. Plaintiff filed a "partial appeal" to this court, complaining only of the stay order.

On June 18, 1975 plaintiff and the appointing authority executed a compromise agreement, in which plaintiff agreed, in consideration for certain promises made by the appointing authority, to dismiss his appeal pending before the Commission bearing Docket No. 748. On the same day a joint motion to dismiss the appeal was presented to the Commission, and the Commission thereafter accepted the motion and dismissed the appeal with prejudice. The "partial appeal" to this court was also dismissed on joint motion.

On June 8, 1977 plaintiff presented the Commission with a motion to reinstate his appeal on the grounds that the appointing authority "failed to live up to the compromise agreement". The Commission denied the motion. Plaintiff then filed the present appeal, and the appointing authority moved to dismiss the appeal.

The appointing authority points out that plaintiff's recourse is to enforce the compromise, an action over which the Commission has no jurisdiction. Plaintiff argues he is not seeking to enforce the compromise, but that argument begs the question of whether any other relief remains available.

Compromises have, between the parties, a force equal to the authority of things adjudged. C.C. art. 3078, 3556(31). Therefore, plaintiff's complaints regarding his dismissal by the appointing authority has been finally adjudged, and the Civil Service Commission has no power and authority to grant plaintiff relief as to this complaint, absent a declaration of nullity of the compromise.

The appeal is dismissed.

APPEAL DISMISSED.