
    No. 10,633.
    The State ex rel. C. R. Mower vs. The Judges of the Court of Appeals for the First Circuit.
    Where a party brings a petitory action, and the defendant answers, claiming less land than demanded in the petition, but is the possessor of the whole tract described in plaintiff’s petition, the controversy can not, for the purposes of jurisdiction, be restricted to the land claimed by the defendant.
    ^PPLICATION for Mandamus.
    
    
      W. W. Richardson, Wise, Herndon and Stubbs for the Relator.
   The opinion of the court was delivered by

McEnery, J.

This is a mandamus proceeding to compel the Court of Appeals of the First Circuit to take jurisdiction.

From a judgment rendered against relator by the District Court of Bienville parish, the plaintiff and relator appealed to the Court of Appeals of the First Circuit.

• The defendant filed a motion to dismiss the appeal, as the Appellate Court was without jurisdiction rations materias. The motion was sustained and the appeal was dismissed. We are asked to compel the Court of Appeals to take jurisdiction of the case.

The relator and plaintiff instituted a petitory action against the defendant, claiming title to property valued at $1200, and for timber destroyed on the land by defendant valued at $500, and for rent for two years $400, amounting to $2100.

The defendant answered, pleading a general denial to all of the allegations contained in plaintiff’s petition, except that he is in possession of the land described therein.” He setup title in the United States government or the State of Louisiana.

He filed an amended answer in which he adopted all the allegations contained in his original answer. In his amended answer he alleges that he moved upon the land described in the petition for the purpose of homesteading 160 acres.

The relator contends that by filing this amended answer the controversy was narrowed down to the title to the 160 acres, which would bring the amount down to less than $2000, the upper limit of the jurisdiction of the Court of Appeals.

On the face of the petition the amount of plaintiff’s demand exceeds $2000. For this amount the defendant was sued. The defendant by claiming less can not reduce the amount so as to give jurisdiction. The plaintiff relinquished no part of his demand.

The defendant was in possession of the land. This he admits in the original and amended answer. He was in possession of the whole tract sued for. The plaintiff was compelled to sue him as the possessor. He did not surrender any part of the land to plaintiff; and as to the defendant, regardless as to that ownership, the action .must be prosecuted against him while he is the possessor of the property. C. P., Article 43:

It is, therefore, ordered that the mandamus be refused at relator’s cost.  