Plaintiffs filed their petition and alleged impending irreparable injury, praying for a preliminary injunction prohibiting defendant from dealing with or paying certain physicians said to have been illegally chosen physicians of the association. They further prayed that after due proceedings had said injunction be perpetuated, that the election of said -physicians be declared illegal and void, and that their pretended contracts of employment be annulled and set aside; and they prayed for general relief.
No preliminary injunction was granted, but instead thereof the district judge issued a rule nisi.
Defendant filed a written return to the rule nisi and in *147the same instrument answered the petition and joined issue thereon.
On the day fixed for a hearing on the rule nisi and before said hearing was had, the following agreement was entered into:
Agreement:
“It is agreed between plaintiffs’ and defendant’s counsel that the matters herein to be adjudicated on by the court shall be taken up on the merits and all exceptions and pleas.”
Thereupon evidence was heard, the cause was argued and submitted and a judgment rendered as follows:
“It is ordered, adjudged and decreed that the injunction herein issued be maintanied and declaring the election held July 4, 1910, to be illegal, void and of no effect. It is further ordered, etc., that there be an election held on Monday, October 10,1910, between the hours of 9 A. M. and 6 P. M. in accordance with the by-laws and constitution of the defendant association, to elect four physicians for said defendant association, said election to be held in the rooms of the defendant association No. 2059 Jackson Avenue, under the supervision of Charles J. Jackson and Clarence J. Cocke, special commissioners herein appointed by the Court, and said commissioners to be duly sworn. It is further ordered, etc., that each member of said association be duly notified of said election by postal card announcing same.”
Thereupon defendant took a suspensive appeal and plaintiff now moves to dismiss the same on the ground that the injury being irreparable no suspensive appeal lies from said judgment.
Granting that no suspensive appeal generally lies from an order granting a preliminary injunction pendente lite, whether rendered ex parte or following a rule nisi, *148the matter at bar is not in that category. In tbe first instance tbe order is only interlocutory and disposes finally of none of the issues in tbe case. It must be followed by a judgment on the merits, perpetuating or dissolving tbe. injunction and disposing of all tbe issues involved. This, constitutes tbe final judgment in tbe cause from which a suspensive appeal lies of right.
December 5, 1910.But in tbe case at bar there is no endeavor to appeal from an interlocutory order granting á preliminary injunction. All parties consented to a trial on the merits, and after a trial so bad, judgment was rendered granting a permanent injunction and disposing of all tbe issues in tbe case.
This was a final judgment; nothing more was left to be done or could be done by tbe court a qua. Code of Practice 539, 548. Hence defendant was entitled to an appeal of right, which being taken in time and in tbe manner pointed out by law, has tbe effect of staying tbe execution of tbe judgment.
Code of Practice, 565, 575.
Plaintiffs were not required to try tbe merits of tbe case when tbe rule nisi was called, and might have limited tbe inquiry to tbe question whether an injunction should issue pendente lite, but they- have not done so. They chose rather to try tbe merits of their case and obtained a final judgment which not only granted a perpetual injunction, but also annulled and set aside the election previously held by defendant, and directed a new election to be held.
Defendants are clearly entitled to appeal from a judgment of this nature, and to have tbe execution thereof suspended pending tbe appeal.
Motion denied.