
    No. 1278.
    Isaac Freiberg & Bro. and Others vs. A. Langfelder. Mrs. Pauline, Intervenor.
    While we have recognized the practice, in cases of ambiguous jurisdiction, of taking appeals at the same time from District Courts to the Circuit Courts of Appeal and to this court, parties availing themselves of this privilege subject themselves to the risk that if the first appeal shall not be determined by the court in which it is lodged prior to the return of the second appeal, the latter necessarily lapses.
    It is a legal impossibility that there can be two appeals, by the same party, from the same judgment, pending at the same time in two different courts.
    The Circuit Court to which the first appeal was returned had exclusive authority to determine primarily its jurisdiction over the appeal, and. until it has declined jurisdiction or has been denied jurisdiction under an appeal to the supervisory jurisdiction of this court the pendency of the appeal is a bar to the prosecution of an appeal, involving the same subject matter, to this court.
    Appellees who are held in the Circuit Court under the appeal still pending there, can not be, at the same time, impleaded in this court under the second appeal.
    Appeal dismissed without prejudice to right of new appeal in case the Circuit Court shall decline or be denied jurisdiction.
    APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.
    
      
      Qunby- & Sholars for Plaintiffs and Appellants.
    
      Boatner & Lamkin for Intervenor, Appellee.
    
      Stubbs & Bussell for Defendant.
   The opinion of the court was delivered by

Fbnneb, J.

The several plaintiffs in these cases having encountered adverse judgments in the court below, and being, as we suppose, in doubt as to whether the cases were within the appellate jurisdiction of the Circuit Court of Appeals or of this court, applied for and obtained, at the same time, two orders'of appeal, one to the Circuit Court returnable on the first Monday of June, 1893, and the other to this court on .the second Monday of June, 1893.

A motion to dismiss filed by appellee brings to our notice the fact (admitted by appellants) that the first appeal was duly lodged in the Circuit Court and was pending in said court undetermined at the time when the appeal was filed in this court, and still remains undetermined.

In consideration of the double appellate jurisdiction granted to the Supreme and to the Circuit Courts over District Courts and of the uncertainty which sometimes attends the determination as to which is the proper appellate tribunal, we are disposed to recognize the practice which seems to prevail, in ambiguous cases, of taking, at the same time, orders of appeal to both appellate courts.

In the case of Bennett vs. Creditors, decided at this term, where appeals had been taken both to the Circuit Court and to the Supreme Court, and where the appeal to the Circuit Court had been dismissed for want of jurisdiction before the appeal to this court had been filed here, we declined to dismiss the latter appeal, saying: “ The first appeal prosecuted was a nullity, and the second, valid and legal. It was in force and could be prosecuted in accordance with the order granting it. Because the other order obtained at the same time was null and void, it could not affect the order of appeal made returnable to this court.”

If this case stood in like position we should pursue the same course. But the case before us is essentially different. We are confronted with the fact that the appeal taken to the Circuit Court was duly prosecuted and had been lodged in that court before the appeal was returned in this court and is still pending there undetermined.

Is it possible that there can be two appeals by the same party, from the same judgment, pending, at the same time, in two different courts? We can discover no warrant of law for such a proposition. It may be that the appeal to the Circuit Court may be nugatory as not within its jurisdiction, and that the Circuit Court may so decide and dismiss that appeal as it did in the Bennett case. But the Circuit Court is vested with unquestioned and exclusive authority to determine primarily the question of its jurisdiction over the appeal. When it has decided, resort may be had to our supervisory jurisdiction to compel or forbid it to entertain jurisdiction; but we have universally declined to exercise our supervisory powers until the question of jurisdiction has been first .submitted to and decided by the Circuit Court. Bor us to entertain jurisdiction of the appeal to this court would be, in effect, to order a dismissal of the appeal to the Circuit Court in advance of any determination by that court of its own jurisdiction. The two appellate jurisdictions are. exclusive of each other. If this court has jurisdiction the Circuit Court can not have it — at least over the whole judgment, and both appeals' are taken from the whole judgment without discrimination. Appellants have themselves invoked the appellate jurisdiction of the Circuit Court and' they must submit to that jurisdiction until it has been determined in proper proceedings and by proper authority that the Circuit Court has no jurisdiction. Then, and not till then, can they appeal to this court. We can not, in this case, decide that the Circuit Court has no jurisdiction of an appeal regularly taken and pending before it; and it is impossible for us to entertain this appeal without so deciding.

It is, no doubt, unfortunate for appellants that their two appeals ' thus find themselves in conflict. But it was a risk that they assumed when they took the two appeals, that if the first appeal was not disposed of before the return day of the second the latter would necessarily lapse. It is a legal impossibility that they should bring their second appeal to this court while their first appeal is still pending undetermined in the Circuit Court. It does not lie in the mouths of appellants to ’ question the jurisdiction of the Circuit Court which they have themselves invoked. Their adversaries may question it, and if they do so successfully appellants may then invoke the jurisdiction of this court, but so long as the appellees are held under the appeal in the Circuit Court they can not be impleaded in this court under an appeal by. the same parties from the same judgment.

We have reflected on appellant’s dilemma from every point of view without being able to discover any alternative except to dismiss the appeal. In doing so we shall reserve their right to take a new appeal to this court in case the Circuit Court shall be held to be without jurisdiction.

It is therefore ordered that this appeal be dismissed without prejudice to appellant’s right to take a new appeal to this court in case the pending appeal to the Circuit Court of Appeals shall be dismissed for want of jurisdiction.

On- Application for Rehearing.

Watkins, J.

Counsel for appellant insist that in dismissing defendant’s appeal our opinion runs counter to the Constitution and law — relying_on Henry vs. Tricou, 36 An. 520, and supported by an elaborate and extended argument.

We will premise these remarks by stating that the dicta announced in Henry vs. Tricou has been called to our attention for the first time in this application. It certainly is in conflict with our ruling in this ease; but we feel bound to overrule that decision. It is couched in dogmatic terms, unsupported by thoughtful reasons and. has not been followed by confirmatory precedent.

With the utmost desire to preserve'uniformity in the rulings of this court, especially upon points of practice, a hasty departure from sound and logical principles ought not to compel us, in the language of Chief Justice Black “ to stumble again, every time we come to the place where we stumbled before.”

We note the statement on the application to the effect that our opinion is slightly in error in saying “that the appeal taken to the Circuit Court had been lodged (our italics) in that court before the appeal was returned into this court,” etc., counsel’s insistence being that the record shows that orders of appeal were simultaneously granted, and appeal bonds to this court and the Circuit Court simultaneously filed — thus vesting jurisdiction in each of. said courts simultaneously.

On this hypothesis counsel say:

“ Then it necessarily follows that the appeal was lodged in 'the Supreme Court at the same time and in the same manner that it was lodged in the Circuit Court,” etc.

While the filing of the appeal bond certainly divests the jurisdiction of the court of first instance, and, presumably at least, vests the appellate court with jurisdiction, yet the appellate court is fully vested with the power of determining when an appeal is properly brought before it. No other court or tribunal is competent to do so. And in order to determine that question in this case, we think we must examine and be controlled by the order.of appeal. Looking into the order of appeal, we find that the Circuit Court appeal was made returnable on the first Monday in June, 1893, while the appeal taken to this court was made returnable to this court on the second Monday in June, 1893, just a week later.

If the appellants pursued the tenor of this order of appeal, and filed a transcript in each one of the appellate courts on the respective return days, it is evident that, as our opinion states, “ the appeal taken to the Circuit Court had been lodged in that court before the appeal was returned into this court.”

The clerk’s endorsement on the transcript shows same to have been filed on June 13, 1893, which was the second day of the present term, or eight days subsequent to the return day of the appeal in the Circuit Court. Appellee’s motion to dismiss appeal was filed in this court on June 14, and the case was argued and submitted on that day.

To this motion is appended the certificate of the clerk to the effect that the appeal had been prosecuted to the Circuit Court and that the case had been argued and submitted in said court and was at the time under advisement by the judges thereof. It is manifest that the statement of our opinion was strictly correct.

In our opinion appellee’s motion does not involve a question of jurisdiction, but the question of the appellant’s right to bring up an appeal to this court during the pendency of another appeal in the Circuit Court. If this court should proceed with the case and decide it, we might be confronted with a different judgment rendered by the Circuit Court. True it is that the Circuit Court might, through courtesy, suspend its judgment so as to conform to our own.' But there» is no assurance of that course being pursued, nor could this court expect the Circuit Court so to do.

But this is an argument ab inconvenienti. The proposition of appellant’s counsel involves the philosophical impossibility of two bodies occupying the same space at the same time.

There can not be such a thing as a suit being in two courts at one and the same time.

This the appellant has attempted to do, and we simply decline to take cognizance of the appeal he has lodged in this court, since his appeal in the same case was lodged in the Circuit Court.

We have gone very far — possibly too 'far — in permitting such radi<cally inconsistent pleading as the taking of two self-contradictory ■orders of appeal from the same judgment, to two different courts, at -the same time. No express provision of law sanctions such a practice, and we have given it our approval only to relieve parties from ■the responsibility of deciding, in advance, doubtful questions of jurisdiction ; and to relieve them from the unfortunate consequences resulting in case the order of appeal first returned and presented for Action should be annulled for want of jurisdiction.

In that case the second order of appeal would remain in force and might be prosecuted without encountering any conflict of jurisdiction. But to claim that a- party who has lodged and is actually prosecuting ■an appeal in the Circuit Court can afterward, and’while that appeal is still pending, return into this court another appeal, identical in •every respect, is to demand what we characterize as a “ legal impossibility ” — and we cannot demonstrate this more completely than was done in our original opinion..

Rehearing refused.  