Armstrong Furniture Co. v. L. Lecompte & Co.

2 McGl. 385

• Court: Louisiana Court of Appeal
• Decided: July 1, 1884
• Docket: No. 163
• Status: Published

Opinions

On Motion To Dismiss.

Flis Honor Judge Frank McGloin

delivered the opinion and decree of the court in the words and figures following, to wit;

Plaintiff sued defendant, L. Lecompe and Co., for $932.75, and joined to this action one against Charles Fendez in conjunction with said L. Lecompe and Co., to have a transfer of certain property by the debtor to said Fendez declared null and void as a fraudulent simulation, in so far as they, plaintiffs, are concerned. The judgment of the lower court was for plaintiff for the debt, and against Fendez, declaring that title held by the latter to be a nullity, and subjected the property affected “to the claims of the creditors of L. Lecompe and Co., to be determined hereafter as to their rank and amount.”

The defendent, Fendez, appeals, and plaintiff moves to dismiss. Their motion sets forth practically but two grounds; 1st. want of jurisdiction in this court; 2nd. that the record is not complete in as much as the extract from the lower court has not been filed in this court.

1st. It is true that the value of the property, the title to which is attacked, amounted to $12,000, a sum which is beyond our jurisdiction; and that the judgment seems to be tantamount to a declaration of nullity against the transfer as a whole. Nevertheless, the fact is that plaintiff only demanded a declaration of nullity against the pretended title of Fendez, as to themselves, and abstained from demanding the total abrogation of the same. The judge a quo seemingly through inadvertance went far beyond the original pleadings in his decree and we find no amendment or any evidence which by reason of its variance with the allegations of the petition, might be considered as an enlargement of the issues by implication.

The Supreme Court of this state in State ex rel Bloss vs. Judges, 33 La. Ann. 1353, expressly determined that where a plaintiff demands only a partial setting aside of a title in so far as said title affects him, that the question of appellate jurisdiction is determined by the amount of his claim and not by the value of the property. To the same effect is Lobe & Bloom vs. Arent et al, 33 La. Ann. 1086. The opinion of this court in R. G. Bluss vs. Lindop, No. 128, upon its docket, takes rather a different view of this question, but upon a second consideration, we are convinced that the conclusions by us arrived at in that case so far alone, however, as they might serve as a precedent in this, were not sound.

We there considered that the controversy was one between the creditor and a third person, and that the issue involved was not the matter of the original debt but the want of title, and that the case was similar to one where a third person enjoined the seizure of his property under a writ against another. We stated that the transaction complained of should not be investigated partially, or annulled in part, and hence the validity of the whole title was pending. It seems to us now, however, that the prayer of the petition should govern in this case, and if that be for something within our jurisdiction, the question whether it be rightfully demanded or not cannot be determined upon mere,proceedings to dismiss. The plaintiff here has demanded only a partial rescission and whether, upon trial upon the merits we hold him entitled to it or not, still that is all he is asking for, and it is by what he actually prays for that the issue of jurisdiction must be decided.

The inadvertent error of the judge cannot affect the question of the appeal. When the petition was filed, the case was one that was properly appealable to this court. When it was tried and submitted, the same, and the parties themselves have done nothing themselves to alter its character. Under such circumstances, we do not consider that the inferior court has the power either intentionally or by inadvertence to change the nature of the controversy. Were it otherwise, the lines of appellate jurisdiction would be to some extent, at the mercy of judges of the first instance, who could force upon the superior tribunals the hearing of any controversy they chose, no matter what was the will of the parties or the true extent of the demand, as such demand is expressed in the pleadings. A litigant claiming $100, might have the decree entered for $5,000 and thus have his suit against his own will, and against its very nature, made appealable to the Supreme Court.

2nd. The rules of the court do not require the minute entries of the lower court to be furnished in every case by copies. Rule No. 5 requires them to be sent up in the originals or copies. By original is meant the motion or form of order which are usually presented and filed in writing and subsequently copied in the minutes. The certificate furnished by the clerk in this particular case seems to be regular — declaring that we have all to which the law entitles this court; and the motion to dismiss indicates no particular motion or paper which is missing or defective.

When a party moves this court to dismiss an appeal because some essential document, paper or copy is absent, the demand will not be noticed unless it points out and describes specifically what piece is missing. Litigants must be certain and precise in all pleadings, and a motion, to dismiss forms no exception to the operation of this wholesome rule. A. & B. Lagman vs. O’Neil & Garvey, No. 158, on the docket of this court. The motion to dismiss is therefore denied.