In re Land Development Co. of Louisiana

4 Pelt. 336

• Court: Louisiana Court of Appeal
• Decided: July 1, 1921
• Docket: No. 7949
• Status: Published

Opinion

On motions to dlsmess. ■

Plaintiff, appellee, has moved to dismiss two appelas under one number.

First; that this Court is without jurisdiction rations materia to hear the two appeals.

Seoond; that defendant having confessed judgment and admitted his want of interest in the subjeot matter in dispute, is without right to prosecute an appeal; and finally that the judgment for costs, in this oase, against plaintiff and his surety, Purnel M. Milner, for | 55.35. being below the jurisdictional value of this Court we have no jurisdiction, hence, praying the appeal be dismissed.

Originally this suit involved property valued at over $3.000.. This question came up on its merits before the Honorable, the Supreme Court of this State, and is found in the 145 La. Reports at page 1, and was there disposed of adversely to the appellants.

The Aoji of the Legislature being Act No. 19 of 1913, 1104 and whioh re-enats Aot No. 56 of the Acts of^gglS., entitled: "An Act relative to the jurisdiction of the Supreme Court and Courts of Appeal, and to authorize either Court to transfer to the other the record in any oase where the appeal waB brought up through mistake in the jurisdiction, insead of dismissing the appeal, by authorizing the Supreme Court- to transfer to the Court of Appeal in oases that may be erroneously transferred to the Supreme Court by the Court of Appeal, to be proceeded with as if it had never been transferred to the Supreme Court."

In the oase of Emile L. Schleider vs. J. Vic Leclero, Vol. 7 Court of Appeal, page 33, the syllabus reads; "Not only the principal of the mortgage note but also the demand for attorneys fees stipulated therein must be oonsidsred whether or not the appeal lies to this Court". And the ji ' 1 Ion to dismiss was a transfer of that case to^ttefiw 'Court, and citing amongst other decisions, Meyer vs. Stahr, 35 Ann. p. 57.

Subsequently in the 8 Court of Appeal Reports, p. 97, Dorothea f»sa Jaco and Josephine Jaco Baptiste vs. Abraham Jaco, the Syllabus reads:-" The test of appellate jurisdiction in partition proceedings id the value of the property to be partitioned; and where such value exoeeds $2.000., the appeal should be taken to the Supreme Court". It wab so ordered.

In*the 14th. Court of Appeal at page 375, Blix Blatz Antich vs. John Milhaljevich, the syllabus reads; "Where the assets to be administered upon by a receiver or liquidator extends $3.000., in value, an appeal from a judgment appointing suoh receiver or liquidator will lie to the Supreme Court and not to the Court of Appeal." Citing further Perkins vs. Crystal Ice Co. 119 La. p. 519. A rule to tax costs and judgment thereon are interlocatory and form part of the original proceedings. Iron Works vs. Reuss, 40 La. Ann. 114. Cunnungham vs. Lazarus, 40 Ann. 856. Cooke & Laurie Co. vs. Denis, 126 La. 413. in any The jurisdiction of this Court axsx ±ha controversy over the administration of a fund is determined by the amount of the fund to be administered. State ex. rel. Bellamore vs. Rambotis, 120 La. p. 152. Succession of Welp, 120 La. p. 64.. In this case, the amount was $3.000., simple motion to dismiss was denied, but the principle heretofore announced vías affirmed.

This Court, is therefore dearly without jurisdiction over this appeal whioh should be taken to the Supreme Court.

It is therefore, ordered, adjudged and decreed, that this appeal be transferred to the Supreme Court of Louisana, upon appellant or his attorney making and filing his affid’' -Tit* that the appeal «as net taken fox dela^and lodging a transcript of ths reo judgment beooues final. transcript of the record in ths Supreme Courtgutter this

«•Appeal Transfer red-