Holland v. Gross

195 So. 837, 1939 La. App. LEXIS 471

• Court: Louisiana Court of Appeal
• Decided: April 28, 1939
• Docket: No. 5882.
• Status: Published

Opinions

DREW, Judge.

Plaintiff instituted this suit to recover from Joseph C. Gross the sum of $9,800 for damages for personal injuries and expenses connected therewith, occasioned by an automobile accident which he alleged was caused by the negligence of defendant Gross’ minor son, and for which damage defendant Gross is alleged to be liable.

He coupled with the suit for damages a revocatory action in which he prays that a sale from defendant Gross to his father-in-law, Gillis M. Franklin, of lots 1 and 7 of Block 8 of the Town of Providence, East Carroll Parish, for a recited consideration of $6000, be avoided and the property be decreed subject to execution under the judgment to be herein rendered.

The lower court awarded judgment for plaintiff in the tort action in the sum of $930, with legal interest from judicial demand until paid. In the revocatory action his demands were rejected.

Plaintiff appealed devolutively from the judgment of the lower court. Defendant Joseph C. Gross entered orders of appeal but failed to perfect an appeal. Defendant Gillis M. Franklin did not appeal. In this court defendant Gross has answered the appeal perfected by plaintiff. Gillis M. Franklin has also answered the appeal of plaintiff, both praying that the judgment in the tort action be reversed, and the judgment on the revocatory action be affirmed.

Plaintiff has come into this court by motion setting out that this court has no jurisdiction in the revocatory action and praying that the case be transferred to the Supreme Court. The case is before us on the motion to transfer.

When the case was called for argument the information we gathered from the attorneys on both sides of the case was that the plaintiff alone had perfected an appeal and no answers to the appeal had been filed by 'either defendant. The plaintiff stated, through counsel, that he was willing to abandon his appeal in the tort action, therefore leaving nothing before the court except the revocatory action; and since the law seems clear that we are without jurisdiction to hear an appeal in a revocatory action where the amount claimed exceeds $2000, in order to collect which it is desired to revoke a sale, we only heard argument on the motion to transfer. Gast v. Gast, La.App., 181 So. 204; Weinfurter v. Cresap, 155 La. 682, 99 So. 528.

However, a study of the record discloses that both defendants answered the appeal and prayed for a reversal of the judgment awarding plaintiff damages in his tort action. Such being the case, plaintiff could not, by abandoning his appeal in this court on the tort action, after answers were filed, deprive defendants of their right to be heard.

We have jurisdiction of the tort action, therefore the motion to transfer is denied and the case is returned to our docket to be refixed for argument.