Drewes & Co. v. Ham & Seymour

On Motion to Dismiss Appeal. Plaintiffs having obtained an injunction against defendants and the Whitney National Bank, prohibiting and restraining defendants from demanding or attempting to enforce payment of a certain draft for $100,800, drawn under a letter of credit issued by the bank, and prohibiting and restraining the bank from paying the same out of petitioners' funds and charging the payment to their account, the injunction, on defendants' motion, was set aside by the trial judge, in so far as it was directed against the bank, and this appeal was allowed from that ruling. Defendants now move to dismiss the appeal on the ground that it has the effect of maintaining the injunction, the issuance of which, they allege, was beyond the authority of any court as being in violation of section 5242 of the Revised Statutes of the United States (Comp. St. § 9834).

The motion is identical in terms with that filed in the case of Barkley Co. v. Ham Seymour, No. 24534, 103 So. 245,¹ of the docket of this court, arising out of transactions similar to those here disclosed; and the motion in that case was denied, for reasons which are entirely applicable to and are adopted for the purposes of the motion now under consideration.

It is not here asserted that the dissolution of the injunction may not work the plaintiffs an irreparable injury, and the question whether it was competent for the trial court to issue the writ is a justiciable one which that court was bound to decide, and which is reviewable in this court on the appeal, but not on the motion to dismiss the appeal. State v. Marks, 30 La. Ann. 70, 71; Baker v. Frellson, 32 La. Ann. 822; Succession of Baumgarden, 35 La. Ann. 675, 676; Pasley v. McConnell, 39 La. Ann. 1097, 3 So. 484, 485; Brewing Co. v. Boebinger, 40 La. Ann. 277, 4 So. 82; Dreyfus v. Am. Bonding Co., 136 La. 491, 67 So. 342; Board v. Meridith, 140 La. 269, 275, 72 So. 960; Citizens' Bank, etc., v. Bellamy Lumber Co., 140 La. 497, 501, 73 So. 308.

For the reasons thus assigned therefore, and for those assigned in Barkley Co. v. Ham Seymour, supra, the motion to dismiss is denied.

¹ Post p. 872.