On Motion to Dismiss Appeal.
BREAUX, C. J.The grounds are that the appeal having been taken from an order refusing to appoint a receiver and refusing to grant an injunction, and the appeal not having been perfected in time, it should be dismissed.
Going into details, the contention is that the appeal was not made returnable to this court within 10 days from the date of the order of appeal as required by Act No. 159, p. 312, approved July 14, 1898.
Plaintiff’s petition, which we have had to refer to on this motion to dismiss, substantially states that the lease described in the petition is null and void.
In consequence plaintiff asks that it be recognized as entitled to possession of the property and to recover of the defendant all the rents and revenues thereon from the date of the lease, that it be given an accounting, and that it be decreed the owner of the funds arising from the rents and revenues of the property now in the New Orleans National Bank or elsewhere deposited.
Plaintiff further prayed for a writ of injunction restraining defendant from using any of the incomes and profits from daily receipts or any of the funds for any other purpose.
Plaintiff asked for an order directing defendant to show cause why a receiver should not be appointed to take charge of the property and administer it. And in the event *473the court should hold a writ of sequestration, and not the appointment of a receiver, the remedy, petitioner asked on its giving bond in a sum fixed by the court for a writ of sequestration of all the property.
The petitioner further asked that it be adjudged that the receiver is designated as a judicial sequester appointed by the court.
A writ of injunction was issued, and an order nisi to the defendant to sh'ow cause why a receiver should not be appointed.
The defendant appeared and filed an exception and an answer asking that plaintiff's demand be rejected, and also that the writ of injunction be dissolved.
Judgment was rendered in favor of defendant discharging the rule for the appointment of a receiver, dissolving the injunction, and rejecting the demand and dismissing the suit, discontinuing the intervention, and decreeing that the reconventional demand against defendant be dismissed as in ease of nonsuit, and reserving defendant’s right to sue for damages.
The judgment was rendered in open court on January 19, 1909. It was signed on January 26, 1909.
The motion of appeal was made on January 29th, and the bond was filed on February 5th.
On the 29th day of January plaintiff obtained a suspensive appeal to this court.
The contention is that the suit was instituted and prosecuted under Act No. 159, p. 312, approved July 14, 1S98, entitled “An act to authorize and regulate the appointment of receivers for corporations under Art. 109 and Art. 233 of the Constitution.”
The contention on the part of the defendant on this motion to dismiss the appeal is that the purpose was not to obtain the appointment of a receiver to take possession of and manage the property; that it was an appeal to the general equity powers of the court beyond the limits of the statute cited; and that, if the court should conclude that its powers should not extend to the appointment of a receiver, then asking that a writ of sequestration should issue.
We do not conceive that it is necessary to dwell upon this point, for it is next stated that the application to appoint a receiver in this case was abandoned on the trial of the merits because it appeared that in the interval between the application for the appointment of a receiver and the hearing on the merits defendant paid the January interest on plaintiff’s claim.
In the brief of defendant in motion, we are informed that counsel stated in open court that, this having been done, the application for the appointment of a receiver was abandoned as the application had accomplished its purpose.
This really leaves no contest in so far as relates to the receivership. It is disposed of entirely. The dispute is limited to the question of the validity of the lease in question, and, if the lease is invalid, whether plaintiff is entitled to the conservative remedy of an injunction to prevent the defendant from spending the revenues of its property except for any other purposes than those-pertaining to the management of the property itself and the payment of the bonded debts.
In order to decide the different points presented, we have taken up the question whether the appeal was taken in time under the act of 1898.
We have seen that the judgment was signed on January, the 26th. The motion foían appeal was made three days after, and the bond was filed as before stated within 10 days from the date judgment was signed.
Prior to that time there, had been a judgment rendered, but not signed.
A judgment appointing a receiver should be signed, and, if it should not be signed, *475the motion for the appeal lies only after the judge has affixed his signature.
From th,at point of view the appeal was in time.
We will state, in addition, that it does not appear that the appeal was made returnable, as it was, at the instance of appellant. It appears of record as the order of the judge fixing the return day without suggestion from the appellant in that regard.
This court has passed recently upon that point, and decided that in matter of date we could not hold that the appellant was responsible if an oversight be committed unless it appeared that it was the act of the appellant.
There is nothing of the kind here. The court acted directly in fixing the return day.
We do not think the appeal should be dismissed.
For reasons assigned, the motion to dismiss is overruled.