American Ins. Co. v. Mr. Fog, Inc. , 1954 La. App. LEXIS 817 ( 1954 )

GLADNEY, Judge.

Having taken acts of subrogation from their insured, R. J. Robinson of Many, Louisiana, after payments made under policies covering damages to his home caused by a fire and explosion on June 16, 1952, plaintiffs have instituted this suit for the recovery of $8,411.14 paid by reason of their contractual liability, and for the additional sum of $3,000 as attorney’s fees. For cause of action, it is alleged the damages were caused by the negligent acts of the defendants who were engaged in “fogging” the Robinson home.

Defendants have filed in this court a motion to dismiss the appeal, asserting that this court is without jurisdiction to entertain the appeal as it falls within the jurisdiction of the Supretne Court of Louisiana, under Article VII, Section 10 of the Constitution of Louisiana. The record clearly discloses the amount in controversy between each plaintiff and the" defendants, who are sued in solido, is in excess of $2,000 exclusive of interest and costs. It is therefore clear that this court is without jurisdiction and the appeal should be lodged in the Supreme Court of Louisiana.

LSA-R.S. 13:4441 provides where a case is properly brought up on appeal and the appellant or appellants have appealed to the wrong court the appellate court is authorized to transfer the case to the proper court instead of dismissing the appeal. We think this to be the correct procedure in the instant case.

Accordingly, it is ordered that this appeal be transferred to the Honorable,, the Supreme Court of the State of Louisiana. Plaintiffs-appellants are hereby granted a period of 60 days from and after the date upon which this decree becomes final within which to effect the transfer and to perfect the appeal in said court, failing which action within the time fixed this appeal is to stand dismissed.

Costs of this appeal are assessed against plaintiffs-appellants. All other costs are to await final determination hereof.