On Motion to Consolidate Appeals. This proceeding is an aftermath of the case of State of Louisiana v. Standard Oil Co. et al., 164 La. 334, 113 So. 867. A few months after the decision in that case became final, the board of commissioners of the Caddo levee district instituted suit in the district court of Caddo parish against the Pure Oil Company, Standard Oil Company *Page 803 of Louisiana, and other defendants, alleging that the Pure Oil Company, as lessee, had failed to deliver to petitioner, as lessor, certain royalty oil due it under the terms of the mineral lease entered into between them. The prayer of petitioner is that the defendant Standard Oil Company be ordered to pay to it the sum of $13,663.46 held by that company under the circumstances set forth in the petition, and for a judgment against the defendant Pure Oil Company in the sum of $18,625.48, with interest, "such judgment to be credited with the amount in the hands of the Standard Oil Company of Louisiana, in the event that the court should direct the payment thereof to petitioner."
On April 18, 1928, the court below sustained the plea of prescription liberandi causa of three years filed by the Pure Oil Company, and, accordingly, rejected plaintiff's demands against that defendant. From this judgment plaintiff applied for and obtained an appeal which it is prosecuting in this court under the No. 29318 of its docket.
The answer filed in the court below by the Standard Oil Company was accompanied by the deposit in the registry of the court of the amount admitted by that defendant to be due. Subsequently, the state of Louisiana intervened in the suit, claiming the fund deposited in court. The plaintiff, board of commissioners of the Caddo levee district, excepted to the intervention as failing to disclose a cause of action. On June 20, 1928, this exception was maintained and the intervention was dismissed. Thereafter a third judgment was rendered ordering the payment to plaintiff of the fund deposited in the registry of the court.
The state of Louisiana appealed from the judgment dismissing its intervention, and the transcript of appeal, which has been duly filed, bears the No. 29484 of the docket of this court.120 So. 380.1 No appeal has been *Page 804 taken from the judgment directing that the fund deposited in court be paid to plaintiff.
The Pure Oil Company, appellee, has filed a motion in the appeal No. 29318 to consolidate that appeal with the appeal in No. 29484 and to treat the two transcripts as one for the purposes of appeal. This motion has been opposed by the board of commissioners of the Caddo levee district, appellant. The matter presently before us is on the motion and the opposition thereto.
The Pure Oil Company suggests, in support of its motion, that, if the appeals are consolidated, it might be in position to show that it had complied with its obligation under the lease to deliver royalty oil for account of its lessor, the board of commissioners of the Caddo levee district. The suggestion, however, involves a question of fact which must be determined primarily by the court below, in the event that the plea of prescription liberandi causa of three years filed by the Pure Oil Company and maintained by the court below shall be held by this court on the hearing of the appeal to be not well founded. If it so happens, the case will have to be remanded for a trial on the merits.
It is also urged by the Pure Oil Company that, if its motion to consolidate the appeals is granted, it can argue a plea of prescription liberandi causa of ten years, which was also filed, but not passed on, in the court below. But it is frankly admitted, in the brief filed on behalf of the company, that this court could not maintain the plea on the face of the record, if the appeals were consolidated, and that it could only remand the case for the introduction of evidence on the plea, in the event it should determine it was appropriate. It would be a useless proceeding to order the consolidation of the appeals for the purpose suggested, since this court cannot render an opinion upon any justiciable issue in advance of its decision by a court of first instance, which might never be appealed. *Page 805
The motion to consolidate the appeals must be denied. They are not between the same parties, and are not dependent upon the same facts or legal principles.
For the reasons assigned, the motion filed by the Pure Oil Company, defendant and appellee, to consolidate the appeal in No. 29484 of our docket with the appeal herein, is denied.
1 Post, p. 821.