Hodge v. Monroe Mercantile Co.

The opinion of the court was delivered by Blanci-iard, J. A motion to dismiss this appeal is filed. The first ground is that the order of appeal fixes the return day thereof at a date more than sixty days from the rendition of the judgment appealed from. In point of fact the trial judge, through error of calculation, made the appeal returnable sixty-two days from the date of his order granting the appeal, instead of sixty days as was his intention. He certifies to this over his own signature, and states, further, that the error was his and not that of appellants, whose motion for appeal prayed that the appeal be made returnable according to law. The return day was not suggested by appellants. The law directs the judge to fix it at not less than 15 days and not [670] more than 60 days from the date of the order of appeal. Act 92 of 1900. Owing to the heavy work in the clerk’s office the judge, in this instance, intended to allow the clerk the maximum limit for making out the transcript, but, in doing so, failed to take into consideration that the months of January and December have each 31 days and not 30 days. In this way the time fixed for the return of the appeal actually includes 62 days. But since the error is not imputable to appellants, it does not suffice to dismiss their appeal. Elder vs. New Orleans, 31 La. Ann. 501; State vs. Delwood, 33 La. Ann. 1229. The second ground urged for dismissal is that the appellant, at one and the same time, in the same motion for, and order of, appeal, took appeals, respectively, to this court and to the Court of Appeals, of the Third Circuit, from the judgment rendered in this cause. In other words, that he is seeking to prosecute at the same time two appeals from the same judgment — one to this court, the other to the Court of Appeals. The appeals were lodged in the respective courts to which taken. It appears that the Court of Appeals has continued the case on its docket, awaiting, doubtless, the issue of the appeal here. If this court has jurisdiction of the case its jurisdiction covers the whole of it, and if it has jurisdiction, then that jurisdiction is exclusive and the appeal to the Court of Appeals was erroneous. It is clear that this court has jurisdiction. It is a suit for damages growing out of injury alleged to have been inflicted by judicial process. In execution of a judgment recovered against J. Ford Hodge, father of the plaintiff herein, the sheriff seized a lot of liquors and groceries of the value of (say) $500 which Duke Hodge, the plaintiff, asserts the ownership of. Duke Hodge enjoined the sale and coupled with his injunction suit a demand for $17,700 damages. What is at issue, then, is the ownership of goods valued at $500. plus the damages claimed. While the value of the goods represents an amount below the minimum jurisdictional limit of this court, that value, added to what is claimed as damages, far exceeds the minimum jurisdictional limit. Whether plaintiff is entitled to damages depends on two things (1) [671] his ownership of the goods seized for the debt of another; (2) proof that he has suffered damages. If the goods are not his property, his demand for damages falls. Therefore, to the court having jurisdiction of the demand for damages must necessarily be committed the power to determine the question of ownership vel non of the goods. In this sense, the two elements of the case — the goods, the damages claimed — unite to form one cause of action. The first, alone, presents no ease for this court to consider, but united with the demand for damages, a case is made up which can be entertained on appeal by no other court than this. This is not a case where an appeal was first lodged in the Court of Appeals and after being lodged there, another appeal concurrently taken from the same judgment to this court was lodged here — as was the ease in Freiberg vs. Langfelder, 45 La. Ann. 983, relied on by appellees in their motion to dismiss. jSTo court had been seized of jurisdiction of this appeal, by the filing of the record of the case there, prior to the investiture of this court with jurisdiction resulting from the filing of the transcript here. This being so, and it clearly appearing that jurisdiction rattone materias is in this court, the appeal can not be dismissed because of the fact that, concurrently, an appeal in the cause was taken also to another court. Since this court assumes jurisdiction it follows that the inferior appellate court (which has not yet acted on the appeal there pending) has not jurisdiction and will so hold.