Nash v. Curette , 216 La. 190 ( 1949 )

MOISE, Justice.

Plaintiff filed a petitory • action against the defendants seeking the ownership of the property involved. There is cumulated in this action a demand for damages for alleged malicious prosecution by one of the defendants growing out of a dispute over the property. The district court rendered judgment rejecting the plaintiff’s demands and he appealed. The defendants moved to dismiss the appeal and after considering this motion, we remanded the case to the district court for proof of the facts and circumstances concerning the taking of the appeal and a determination of our appellate jurisdiction. 215 La. 109, 39 So.2d 840, 842. On the trial of the rule, the district court found that appellant was entitled to appeal devolutively from the judgment.

There is before us now a second motion to have the appeal dismissed. In this motion defendants have reiterated the grounds previously urged in the first motion: That the value of the land sought to be recovered is only $50; that the allegation of damages allegedly sustained by plaintiff is unsupported by the evidence and should not be considered in estimating the amount in controversy to give this court jurisdiction; and that the objection of defendants to allow the cumulation in one suit of a petitory action against co-owners with a suit for damages for malicious prosecution was sustained and no evidence was admitted to show any injury or damage.

In remanding this case on the first motion to dismiss, we gave potent reasons therefor. These reasons are reiterated here, because they likewise apply with the same force to our disposal of the second motion to dismiss: “Referring now to the appellees’ motion to dismiss the appeal for want of appellate jurisdiction, we would be obliged not to dismiss the appeal for that cause, but to transfer the case to the court of appeal if the cause were well founded. So far as the allegations of the plaintiff’s petition go, the amount in contest appears to be far above the minimum amount of our appellate jurisdiction. If, after hearing the case on its merits, we have a doubt as to whether the amount in dispute is exaggerated, we will decide then whether the case should be transferred to the court of appeal or should be decided finally by this court.”

The motion to dismiss is denied.