Hopkins v. Crow

67 So. 197, 136 La. 267, 1915 La. LEXIS 1698

Opinion

PROYOSTY, J.

Tbe plaintiff’s petition contains tbe allegations and prayer for a revocatory action, and also tbe following additional allegations and prayer, to wit:

“That the said transfer of land was without any real consideration; that the consideration therein expressed is erroneous; and that the said act does not evidence a real and genuine sale.”

“Prays that said transfer be entirely revoked.”

Tbis allegation and prayer are sufficient to sustain tbe action en declaration de simulation; so that tbis action and tbe revocatory action are included in tbe same petition. Usually when both of these actions are urged in one petition it is done in tbe alternative, but tbis precaution was not taken in tbe present case. No exception was based on that circumstance however; tbe only exception filed, which is tbe one we are now called upon to consider, was to tbe jurisdiction of tbe court ratione materise.

[1] Tbe lower limit of tbe jurisdiction of tbe district court in which tbe suit is filed is $50; whereas tbe amount of plaintiff’s claim is only $38. Tbe law is that in tbe revocatory action tbe jurisdiction of tbe court is tested by tbe amount of plaintiff’s claim, and that in tbe action en declaration de simulation it is tested by tbe value of tbe property whereof tbe transfer is sought to be set aside. Tbe contention of relator is that tbe suit is purely revocatory, and that therefore the court is without jurisdiction.

[2] True, the court has no jurisdiction of the revocatory action. Loeb v. Arent, 33 La. Ann. 1086; Zuberbier and Behan v. Morse, 36 La. Ann. 970; Schwartz v. Schmidt, 37 La. Ann. 42; Flower v. Prejean, 42 La. Ann. 897, 8 South. 596; Moore v. Ringuet, 45 La. Ann. 1118, 13 South. 670; Newman v. Blackman, 50 La. Ann. 128, 23 South. 205; Courtney v. Rigmaiden, 112 La. 806, 36 South. 704. But it has jurisdiction of the action en declaration de simulation.

It is therefore ordered, adjudged, and decreed that, in so far as the exception to the jurisdiction is applicable to the revocatory action, the judgment overruling same is set aside, and that said exception is now sustained, but that, in so far as the said exception is applicable to the action en declaration de simulation, the judgment overruling same is affirmed; the costs of the present application to be paid in equal parts by plaintiff and defendant.