
    NO. 7348
    MISS MARY MC MANIGLE VS MILE A. BILLET
    
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   O f I I 1 O I.

St. Paul Judge.

Plaintiff brings this possessor? aotion alleging that she was in physioal possession of certain immovable# property as pwnsr fow more than a year; that within a year defendant has physically taken possession of a portion thereof whioh he refuses to restore: that the value of said property is more than $100 and less than $8000.

Defendant excepted below that the petition diados#d no oause of aotion: that plaintiff's remedy was solely by aotion of boundary. The exception was maintained and plaintiff appealed.

Defendant, appellee here, moves to dldmlss the appeal for want of jurisdiction in the oourt, the value of the possession (whloh alone is in controversy) not being alleged or shown.

1.

On the Motion to Dismiss: The appellee assumes that the law which governs, is Article 98 of the Constitution of 1898 giving the Courts of Appeal jurisdiction of suoh controversies only as involve\ more than $100 and lesa than $8000: but by an unreported ruling of the Supreme Court the jurisdiction of the Courts of Appeal is governed by the corresponding artiole of the Constitution of 1913, under Whloh the jurisdiction of Courts of Appeal shall extend to "all oases, civil and probate, of whioh the District Courts have exdualve original jurisdiction and of whloh the Supreme Court is not given jurisdiction.”

The ruling to whioh we have reference was handed down in re State ex rel Marrero vs. Rouprioh and íortmayer, Ho. 814T8 of the docket of the Supreme Court.

The controversy involved the title to the offloe of Police Junor, an offioe to whioh no salary te emolument whatever is attached. After a decree in the District Court adverse to defendants they appealed to the Supreme Court for relief under its supervisory powers.

They pointed out to the oourt the^oonfliot between Article 98 of the Constitution Of 1913 and the same Article in the Constitution of ÜÜ# 1898, and directed the attention of the oourt to its ruling in re State vs American Sugar Refining Co (137 la 407) holding in effect that those provisions of the Constitution of 1913 which conflicted with the provisions of the Constitution of 1898 were ultra vires and therefore null and void.

/Claiming therefore that no appeal lay to any oourt, they urged 'that this was a proper case (because of the#Dubllo impórtanos thereof) OT~ for tjie exercise of the supervisory and extradinary powers of the court

And in the alternative they prayed "if the oourt is of opinion that relators (defendants) have a remedy by appeal to the Court of Appeal Under Article 98 of the Constitution of 1913. as oohstrued in Bloomfiijíd vs Thompson, 134 la 923, that you (the oourt) will say ad> at the earliest possible moment so that relators (defendants) may not be denied the right to have the decision in this case reviewed by another appellate oourt." (Italios ours).

Upon this applioation the Court without a single dissent, made the following ruling (June 25th 1915);

"Belators’ remedy is by appeal to the Court of Appeal. Applloatica therefore denied."

The Motion to dismiss is therefore Denied.

11.

On the Exception: The remddy herein sought by the plaintiff is precisely that pointed out by the Code of Practice, and the facts set forth by her are in exact accord with the requisites of that code (C. P. 46 to 53 ).

It was not for the plaintiff, afterjilawful and peaceful possession had been disturbed, to assume the burden of an Aotion of Boundary. #he í-f cMs had, and has, a right first^to be restored to and quieted in her possession.

New Orleans, La, April 8 1918.

On the ooutrary it was the defendant who, before taking the law into his own hands, should have asserted his Claims, whatever they might be, in some form of law and before a proper tribunal.

We think our learned brother of the liBtriot Court has fallen into error in maintaining the exception, and we have therefore no alternative but to reverse hiB ruling and remand the case7

She judgment appealed from is therefore reversed, and it is now ordered that the exception of no oause of- action herein filed be overruled and the oase remanded to the Court a -¿ua for further proceedings according to law; defendant to pay the costs of this appeal, and the other oosts to await the final determination of the oause.  