Bankston v. Gill

95 So. 701, 153 La. 234, 1922 La. LEXIS 2522

• Court: Supreme Court of Louisiana
• Decided: December 29, 1922
• Docket: No. 23871
• Status: Published

Opinions

On Motion to Dismiss.

ROGERS, J.

Appellees move to dismiss the appeal on the following grounds;

(1) That the Court of Appeals has passed on this case twice.

(2) That this court is without jurisdiction, the real strip of land in controversy is the difference between the so-called Garahy survey and the survey of Tycer, parish surveyor, and that this strip is worth less than $2,000.

(3) That the joining of other parties to the suit was an insidious attempt to give this court jurisdiction, and, at the same time, an effort to try to avoid the plea of res judicata.

(4) That the real issue is over the strip o.f land included within the so-called Garahy survey, and is worth less than $2,000.

We take it that appellees were not serious in filing the ¡motion to dismiss as they have offered no argument in its support, and do not even refer to it in their brief. As it appears in the record, however, we have considered it and find no merit in the grounds urged.

1. There is nothing in the record to show that the Court of Appeals twice passed on this ease. The certified copy of the opinion and decree of the district court and the certified copy of the opinion and decree of the Court of Appeals in suit No. 4105 (Banks-ton v. Gill), which are the only references to any decisions by those courts, do not show any determination of the issues involved in this case. In that suit the only questions passed upon were whether or not the so-called Garahy survey was in conformity' with the titles of the parties and whether or not the prescription of ten years applied thereto. The judgment of the Court of Appeals was that the Garahy survey was not in conformity with the titles and the plea of prescription was not sustained.

2. The second and fourth grounds of the motion are virtually one in their effect. The petition alleges the value of the property in dispute and the correction of the errors in boundary and range exceed $2,000. This allegation is substantiated by evidence adduced on the trial of the case and by affidavits filed in this court. We think that a sufficient showing has been made to establish jurisdiction in this court.

3. There is no merit in the third ground urged in the motion.

The motion to dismiss is therefore overruled.