Murray v. Sweeney

48 La. Ann. 760

• Court: Supreme Court of Louisiana
• Decided: March 23, 1896
• Docket: No. 12,034
• Status: Published

Opinions

On Motion to Dismiss.

The opinion of the court was delivered by

Miller, J.

The plaintiff obtained judgment against defendant for nine hundred and twenty-five dollars, with privilege on the building erected by him, seized and sold the property. The intervenor asserting a mortgage on the immovable, i. e. the.building and ground, filed a third opposition claiming to be paid her debt, exceeding the-fund in the hands of the sheriff derived from the sale four thousand! dollars. From the judgment of the lower court in her favor awarding her the entire fund and denying the plaintiff’s privilege, he appeals. The appellee, Mrs. Moore, moves to dismiss the appeal, on the ground that the claim of the appellant being only for nine hundred and twenty-five dollars, with interest, is not within the jurisdiction of this court. If the amount he claims is the test of jurisdiction, the appeal must be dismissed.

The appellant urges his right to appeal arises from the provision in the Constitution conferring on this court jurisdiction in all cases where the fund to be distributed exceeds two thousand dollars. Constitution, Art. 81. Amendment Acts 1882, p. 174, No. 125.

Under the, previous constitutions of the State the jurisdiction of the Supreme Court in eases where the appellant claimed less than the appealable amount, to be paid from funds exceeding that amount in the hands of the court, was the subject of frequent •contention. The jurisdiction in that class of cases was maintained, ■but the tests were difficult of application under the scant grant of appellate jurisdiction in previous constitutions; i. e. when the matter in dispute exceeded three hundred dollars. The. present Constitution, not only gives this court appellate jurisdiction where the matter in dispute exceeds two thousands dollars, but adds, “ or funds to be distributed whenever the amount claimed therein shall exceed two thousand dollars.” This addition was perhaps made to supply a fixed test of jurisdiction of incidental demands with respect to funds the court was called on to distribute to litigants, some of whose demands might be less than two thousand dollars. This intention is marked by the language, whatever the amount claimed therein. We think, too, that previous decisions have established the construction allowing an appeal where, as in this case, the fund exceeds two thousand dollars, though the claim of the appellant is less. The test may seem arbitrary in a case like this where the only judgment to be rendered is for or against the payment out of the fund of appellant’s demand of nine hundred and twenty-five dollars, still in view of the mandate of the organic law and previous decisions we think the appeal must be maintained. The cases cited by appellees from 33 An. 1085 (Loeb & Bloom vs. Orent); 39 An. 86 (Young vs. Duncan), and 43 An. 1041 (Katz & Barnett vs. Gill), have had our attention. The decisions in cases of funds in the hands of sheriffs contended for by parties with conflicting claims to be settled by judgments of distribution, in our view, have direct application and must guide our decision. Weil vs. Ins. Co., 40 An. 135; Renshaw vs. Stafford, 34 An. 1140. They affirm that from a judgment distributing funds exceeding two thousand dollars in the sheriff’s hands the test of the right of appeal is that amount and not that of the appellant’s claim.

It is therefore ordered, adjudged and decreed that the motion to pismiss be denied.