Abraham v. Vercher

ON MOTION TO DISMISS THE APPEAL.

ODOM, J.

Plaintiff brought suit against Herbert Vercher alleging that she had leased to him for the year 1928, certain real estate to be cultivated on shares, one-fourth of the crop to be delivered to plaintiff as rent on the land; and further alleging that she sold him goods and supplies with which to make the crop.

In Article 3 of her petition, plaintiff alleged that the said Herbert Vercher and Albert Vercher, his son, had entered into a fraudulent eollusion to deprive her of her part of the crop produced, and, In furtherance thereof, had removed from the place one bale of cotton and had sold it, which bale of cotton was worth approximately $72.00, one-fourth of which belonged to plaintiff. She asked for judgment against Albert Vercher for the amount of the supplies for the year, and recognizing her as the owner of one-fourth of the bale of cotton sold by Herbert and Albert Vercher, and one-fourth of all the other crops produced on tlie place; and judgment against Herbert and Albert Vercher in solido for $267.23. Upon what theory plaintiff asked for a monied judgment against Albert Vercher does not appear from the petition.

Herbert Vercher made no appearance and, while the case was defaulted as to him, it does not appear from the record that said default was made final; but the defendant, Albert Vercher, filed answer in which he denied that the bale of cotton which he had removed and sold was produced on plaintiff’s premises, and especially alleged that said cotton was his property. He prayed that plaintiff’s demands as to him be rejected and that the writs of provisional seizure and sequestration under which said bale of cotton was seized be dissolved; and for judgment against the seizing creditor for $45.00 damages.

The suit against Albert Vercher went to trial and resulted in a judgment rejecting plaintiff’s demands as to him, and condemning plaintiff to pay him damages in the sum of $20.00. Prom this judgment, plaintiff appealed, and appellee now moves that the appeal be dismissed on the ground that the amount involved is below the minimum jurisdiction of this court.

We think the motion to dismiss is well founded. By reference to the minutes of the court, it appears that plaintiff took a voluntary non-suit for the monied demand against Albert Vercher, except as to the value of the one bale of cotton which she alleged he had disposed of. This non-suit seems to have been entered after the court had rejected plaintiff’s demands against Albert Vercher. There was, therefore, no judgment to appeal from, except that which condemned plaintiff to pay defendant the sum of $20.00. According to plaintiff’s allegations, the defendant, Albert Vercher, had no connection with any of the cotton, except one bale which was removed, and she claimed only a one-fourth interest therein, which interest was valued by petitioner at $18.00. Therefore, if it be said that a contest now exists as to the one-fourth interest in the cotton, the amount in dispute is still far below our minimum jurisdiction. As already stated, plaintiff’s suit against Herbert Vercher is not before us.

Por the reasons assigned, the appeal is dismissed at plaintiff’s costs.