Taylor v. Frederick , 1 McGl. 380 ( 1881 )

Irion, J.,

after stating the pleadings and facts__The appellee has filed a motion to dismiss the appeal on the ground that this court is without jurisdiction ratione materia}, the claims being for the logs, valued at eight hundred and forty dollars, and for two hundred dollars damages, making in all one thousand and forty dollars.

If the claim for two hundred dollars damages were a serious and dona fide demand, this court would be without jurisdiction, and the motion to dismiss would prevail •, but we are satisfied that it is not a real demand, and that the only matter in dispute is the logs, valued at eight hundred and forty dollars. The plaintiff bases this claim for damages upon the expenses forced upon him. by this suit, such as costs of court, attorney’s fees, etc. Without some statement of the amount claimed under each of these allegations, or some evidence to show what they are, it would be impossible for the court to pass upon them at all.' The costs of court necessarily follow the judgment, and any claim for them in the body of the petition, as an item upon which the suit is founded, must be considered as a fictitious demand. No evidence was offered in the lower court to sustain the claim for damages. That claim does not appear from the record to have been urged before that tribunal, or to have been considered in rendering the judgment. As a further evidence that the plaintiff was not serious in making such a demand, he has filed no answer to the appeal setting up error in the judgment, though that judgment ignored the demand for damages; nor has he pressed that portion of his claim in this court, except as an allegation in his petition upon which he bases his motion to dismiss. In Pritchard v. Parker, 21 La. An. 745, it was held that an allegation of damages, unsupported by evidence on trial in the court below, would not be considered in estimating the amount in controversy necessary, to give the appellate court jurisdiction. This doctrine has been so often affirmed by the Supreme Court that we think it is no longer open for discussion. As already stated, we are satisfied from the record that the logs are the only matter in dispute between the parties, and *the motion to dismiss must therefore be overruled.

On the merits several questions as to the validity of plaintiff’s title are presented, and quite a number of bills of exception to the rulings of the judge a quo were taken, but the conclusions reached by us dispense us from the necessity of considering that branch of the case.

The evidence adduced by the plaintiff himself shows that the title set up by him was made by Gilbeau, collector, on the 2d of April, 1881, and the trees sued for were cut and removed from the land in the spring of 1880. At the time, therefore, that the alleged trespass was committed the plaintiff had no shadow of right or title to the trees in question; and his subsequent purchase from the collector, even if valid, only gave him the land as it was at the time of his alleged purchase. There is in the deed of the collector no subrogation to the rights of the State, which existed prior to the deed itself, and if there were the, collector was without any authority in law to incorporate such a clause in his deed. It is clear to us that the plaintiff has totally failed to make out any case against, the defendants, and that he is not entitled to a judgment.

The intervenor has not appealed from the judgment of the lower court, even if he could be considered as ,an appellee. He has filed no appearance in this court asking for a change in the judgment, which makes no mention of his claim. He is therefore not before us at all, and we cannot consider the points presented by him.

Judgment reversed; plaintiff’s demand rejected.