Heirs of Marmion v. McPeak

26 So. 376, 51 La. Ann. 1631, 51 La. Ann. 1531

• Court: Supreme Court of Louisiana
• Decided: May 15, 1899
• Docket: No. 13,009
• Status: Published

Opinions

The opinion of the court, on motion to dismiss, was delivered by Nicholls, O. J.

On the merits, by Breaux, J.

On Motion to Dismiss.

Nicholls, C. J.

The appellants have moved this court to dismiss-the appeal filed herein, upon the 'ground that the court is without jurisdiction to entertain the same, ratione materiae, the amount claimed or in dispute being less than two thousand dollars. The action is a petitory action brought by the plaintiffs as heirs of their father, Richard L. S. Marmion, in which they seek to have themselves decreed the owners of certain property described in their petition, together with rent from September 2nd, 1886, from which time, they allege, they have been deprived of the use of their property. The value of the property is alleged to be one thousand dollar’s, and the value of the rents, up to the filing of the petition, declared to be ten dollars per month. The petition of the plaintiffs is verified by affidavit of their attorneys, they, the plaintiffs, being absentees.

Plaintiffs declare that defendants base their right of ownership and possession upon a tax sale which is illegal and void, and which conveyed no title to them for reasons assigned; they further aver that the defendants failed to comply, as adjucatees, with the terms and conditions of the said tax sale, and that title, under the same, has never been completed, they, not having paid taxes subsequent to the year 1880; that they had permitted the property to be readjudicated to the State for the taxes of 1880, 1881 and 1883, and that they, the plaintiffs, had been permitted, by the State, to redeem the property.

Counsel of appellees call our attention to the case of Walsh vs. Harang, 48th Ann., p. 984, stating, that by that decision it was decreed that purchasers at tax sales owed fruits and revenues only from judicial demand, and, therefore, the court should ignore allegations of plaintiffs’ petition asking for rent, prior to that time. They further call the court’s attention to testimony taken on the trial of the case, by which plaintiffs’ own witnessess fixed the value of the property at six hundred dollars, and the rental value at five dollars a month, while defendants’ witnesses fixed the value of the property at four hundred and fifty dollars, and declared it to have no rental value whatever.

Counsel is in error in supposing that this court, in Walsh vs, Ilarang, announced, as a rule of law, that defendants in a petitory action, claiming title to the property in litigation, under a tax adjudication made to them, were only chargeable with rent, or fruits and revenues, from judicial demand. The defendant in that particular case was not the adjudicatee at a tax sale, but a purchaser in good faith from such an adjudicatee, and the court held she was properly chargeable with rent from judicial demand.

We have, on several occasions, noted the difference between appeals dismissed on motion in limine, and appeals dismissed by the court after the case had been regularly taken up and tried.

We think the pleadings of the plaintiffs, verified by affidavit, show a prima facie right to an appeal to the Supreme Court sufficient to withstand a motion to dismiss, made in limine. Wo would not, oh such a motion, be authorized to take up the testimony introduced on the trial of the cause, and base a dismissal, in limine, upon it. That testimony can only reach us, regularly, when the cause comes before us on its merits. Should the testimony in the case disclose, at that time, that the matter in dispute is smaller in value than required to vest appellate jurisdiction in this court, we will, at that time, dismiss the appeal. Wo must decline to dismiss it, in limine, on the motion made.

For the reasons assigned, it is ordered that the motion to dismiss the appeal before the cause is submitted to us on the merits, is denied, leaving the question of jurisdiction to be ascertained and acted upon hereafter.