Peters v. Bell

26 So. 442, 51 La. Ann. 1621, 1898 La. LEXIS 595

• Court: Supreme Court of Louisiana
• Decided: November 21, 1898
• Docket: No. 12,924
• Status: Published

Opinions

On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Breaux, J.

Plaintiff alleges that -he was appointed assistant engineer of the city of New Orleans on the 5th of May, 1896, under the authority of the City Council, and was, when unlawfully discharged, performing -the duties of his office.

That having been regularly appointed, under the terms of the city charter, he holds his office during good behavior, and can only be discharged for cause, by the City Council and not by the city engineer,, who has undertaken to discharge him.

He avers in his petition, that the sum in controversy exceeds two-thousand dollars, and he prays for an injunction, prohibiting him from obstructing him in carrying out the duties of hi-s office, except so far as it may be needful to give necessary orders to perform the-work of his office.

The district judge refused to grant an injunction. Thereupon plaintiff filed a supplemental and amended petition for a judgment as-prayed for in his original petition recognizing him as entitled to the-office he claims, with the emoluments, at the rate of one hundred dollars per month from June 15, 1891, to the time when he shall have-been reinstated.

There is an affidavit filed in this court setting forth his interest aabeing in amount within the jurisdiction of this court.

The judge of the court a, qua mantained the exception, and dismissed plaintiff’s suit.

Plaintiff prosecutes this appeal.

We have only to deal at this time with the jurisdiction of this court which comes up on defendant’s motion to dismiss the appeal.

It may be that the amount involved is much less than two thousand dollars, and that on the merits it will be decided that plaintiff has no-right of action. At this time, we would not feel justified in dismissing the appeal upon the assumption that he is not entitled to any amount (as defendant urges we should) or to be reinstated, and that his averments and affidavits were made in error. Some weight has-always been given to affidavits setting forth that the judgment was-rendered for an appealable amount, whenever the evidence did not,, on the face of the papers, show that it was not correct and true.

Only as relates to jurisdiction, there is sufficient showing made to> enable plaintiff to sustain his appeal and to obtain a hearing as to whether he is entitled to a reinstatement to the office he claims and to the salary of the office to the day of reinstatement. Goodrich vs. Newell, 43rd Ann., 373; and Sims vs. Walshe, 49th Ann., 781.

The motion to dismiss the appeal is denied.