
    221 La. 559
    RYAN et al. v. LOUISIANA SOC. FOR PREVENTION OF CRUELTY TO ANIMALS.
    No. 40576.
    Supreme Court of Louisiana.
    June 2, 1952.
    William J. Guste and John Pat Little, New Orleans, for defendant-appellant.
    Joseph V. Bologna, Bernard J. Fonseca, Ainsworth & Ainsworth, Robert A. Ains-worth, Jr., New Orleans, for plaintiff s-appellees.
   MOISE, Justice.

This suit has for its object the abatement of an alleged nuisance. Plaintiffs, the Sisters of the Blessed Sacrament for Indians and Colored People, a Pennsylvania Corporation, and thirty-two individual members thereof, filed this action against the defendant, Louisiana Society for the Prevention of Cruelty to Animals, seeking relief in the form of a permanent injunction, to enjoin the defendant society from carrying on its operations in the manner where the howling, yelping and barking of the dogs and other animals caused inconvenience, and loss of sleep of plaintiffs, and from operating its establishment in such a .manner that noxious and offensive odors are diffused in the air and blown over the residence and buildings operated by petitioners. There was judgment in favor of the plaintiffs and against the defendant Society, “permanently enjoining the said defendant society from carrying on its operations in a manner wherein the howling, barking and yelping of dogs and other animals under its care and control, will cause annoyance, inconvenience and loss of sleep to the said plaintiffs, and further enjoining the said defendant society from operating its establishment in the manner whereby noxious and offensive odors are diffused and blown over to the residence of the said plaintiffs.

In reading the allegations of the petition and in examining the prayer thereof for relief, we find that there is no amount in dispute nor is there any fund to be distributed. The value of plaintiffs property is not an issue either from the pleadings or the prayer; the value of the improvement that may be made in the future is-not before this court. The only issue before the court is the enjoining of the Society for the Prevention of Cruelty to Animals from using their property in the manner and in the way in which it is presently used and which allegedly constitutes a nuisance to the petitioners and which they desire to prevent. The appeal is prosecuted suspensively to this Court. The district court fixed the bond for the right which should be determined here at the sum of $250.00.

Article 7, Sec. 10 of the Const, of 1921 relating to the jurisdiction of the Supreme Court, m part, reads:

“* * * jt shall have appellate jurisdiction in civil suits where the amount in dispute or the fund to be distributed, irrespective of the amount therein claimed, shall exceed two thousand dollars exclusive of interest * * *”

Therefore, the Supreme Court has no jurisdiction of this case and it should be transferred to the Court of Appeal for the Parish of Orleans, in view of the provisions of LSA-R.S. 13:4441, 13:4442, which provides:

“In any case otherwise properly brought up on appeal to the Supreme Court, * * * the judges * * * may, in cases where the appellant or appellants shall have appealed to the wrong court, transfer the case to the proper court instead of dismissing the appeal. * * * ”

For the reasons assigned, it is ordered that this case be transferred to the Court of Appeal for the Parish of Orleans, provided that the record shall be filed in that court within thirty days from the date on which this decree shall become final, otherwise the appeal shall be dismissed; appellant to pay costs.

LE BLANC, Justice

(dissenting).

This suit has for its object the abatement of a nuisance which, for the reasons set out in their petition and as stated in the majority opinion, the plaintiffs allege “they are continuously being deprived of the use and enjoyment of their property and residence.”

In paragraph 12 of their petition plaintiffs allege that the value of their properties, the location of which is given in their petition, is in excess of $2,000 and “that the right of use and enjoyment [of said properties] is also in excess of two thousand dollars ($2000.00).” In its answer, the defendant “admits the allegations contained in Paragraph XII of Plaintiffs’ petition.”

Undoubtedly, the plaintiffs are seeking to enforce a civil right; one to be maintained in the peaceful and quiet use and enjoyment of their property, unmolested and free of the disturbances caused by the alleged actions of the defendant and, admittedly, this right 'has a value in excess of $2,000.

In Frierson v. Cooper, 196 La. 450, 199 So. 388, 390, in considering the question of the jurisdiction of this Court in cases involving civil rights, the Court made it plain that where such right has a pecuniary value susceptible of proof, jurisdiction on appeal attaches according to the amount of such value. In -reference to this the Court stated: “Unquestionably the right involved in the instant case -has a pecuniary value capable of proof. Theire are many civil rights asserted in law suits which have no pecuniary value and it is the purpose of the constitutional provision to fix the appellate jurisdiction in such cases with a degree of certainty. It is our opinion that in all cases where a right is involved which has a pecuniary value that value will govern the jurisdiction of the appeal, and the right involved herein has a pecuniary value in excess of $2000.”

It is true that the value of plaintiffs’ property is not at issue in this case and neither is the value of the improvement that may be made in the future but likewise the value of the property in the cited case of Frierson v. Cooper was not at issue. It was the exercise of the right of use and enjoyment of the property that was involved in that case the same right which the plaintiffs in this case are seeking to enforce and as the value of that right is admittedly in excess of the sum of $2,000 I am of the opinion, following the reasoning of the -Court in Frierson v. ■Cooper, that the appeal properly lies in this Court.

On the jurisdictional question that is involved the decision in this case cannot, in my humble opinion, be reconciled with that in the Frierson case. Both cannot he right. I think that the conclusion reached in the Frierson case is sound. If it is not then I submit that the decision in that case should ¡be overruled.

For the reasons stated I respectfully dissent.  