
    No. 1367.
    A. Adler & Co. vs. Clifton Cannon, Sheriff, et als.
    When a creditor, claiming* a vendor’s lien on certain goods lie and other creditors of a common debtor have attached, files an appearance in his own attachment suit claiming a ^preference on the proceeds thereof over the other attachment creditors, who are cited therein as defendants the amount of tlie proceeds of the particular property which is affected with the vendor’s lien, will control the jurisdiction of the cause in this court. It is only when a fund exceeding $2000 is sought to be distributed, and where the court acting intra and not ultra petitum, can direct tlie distribution of such fund. Whether it does so actually or not is immaterial, the Supreme Court has appellate jurisdiction.
    
      APPEAL from the Twelfth District Court Parish of Avoyelles. Coco, J.
    
    
      Irion & Lafargue for Plaintiffs and Appellees:
    When two suits are consolidated they thenceforward form but one, and when thus-tried and decided, and judgment is rendered, the party cast must appeal from that judgment if he wishes relief. 35 An. 555.
    The test of jurisdiction is the amount in contention, when realized at a separate sale, and not the fund derived from the sale of the entire stock of a debtor, which is not opposed, and which has previously been ordered to be distributed.
    When the amount involved is less than the lower limit of the jurisdiction of the Supreme Court, it can not exercise jurisdiction, but must dismiss the appeal.
    The proceeds of a sale of specific items of property upon which vendors claim their privilege is the test of jurisdiction of the Supreme Court, and not the value of the entire property of the debtor 'when same is not to be distributed.
    In an attachment proceeding, when a third opponent claims a privilege on the proceeds of a portion of the property attached, which has been sold separately, the value of that property, and not the amount realized at the sale of all the property of a debtor, is the test of jurisdiction of the Supreme Court.
    • Thorpe & Peterman for Defendants and Appellants.
   The opinion of the court was delivered by

Watkins, J.

Plaintiffs and appellees move the dismissal of EL & C. Newman’s appeal, on the grounds:

1. Plaintiffs’ attachment suit and opposition were consolidated before trial, and thereon judgment was rendered, but the appeal is prosecuted from the judgment on the opposition alone.

2. The lack of jurisdiction of this court ratione materise.

Prom the record it appears that plaintiffs filed a petition of opposition in an attachment suit against S. E. Blum, of previous date, and claimed a vendor’s lien and privilege on certain goods they had previously sold the defendant, Blum, and which they had identified, and caused to be sold separately from the mass of his property, and which realized the sum of §167, and which they claimed should be paid to them by preference over all attaching creditors of the common debtor. In the record we find an order of court consolidating the opposition and attachment suit of Adler & Co. and the judgment that was rendered in the consolidated canses; but we find none of the pleadings or proceedings in either the attachment suit of Adler- ■& Co. or other parties againt Blum. In the petition of opposition quite a number of persons are mentioned as attaching creditors of Blum, and they were cited and answered, and contradictorily with them said judgment was rendered. It is from that judgment that H. & C. Newman have appealed. As it is the only judgment in the record, and the motion, order and bond of appeal conform to the judgment, the first ground of plaintiffs’ motion can not prevail.

But the second one is good, as we think it is manifest that there is no contingency in which we could render a judgment-for or against either party to this litigation for a sum of §2000. Adler & Co. only claim §167 in their opposition as the proceeds of the sale of certain movable effects on which they assert their vendor’s lien, and quoad hoc they claim the right to be paid by preference over other attaching creditors of same goods and effects. Between opponents and other attaching creditors there appears from the record to be no controversy as to proceeds of the sale of other goods. From aught that appears of record other creditors had no liens or privileges on the goods other than such as resulted from their attachments, and they were ranked according to the respective dates of seizure.

Under this state of facts there is but one single controversy under ■consideration, and that is whether Adler & Co. are entitled to priority over other attaching creditors of Blum upon the proceeds of the sale of ■the goods mentioned as being affected with a vendor’s lien and aggregating §167. The consolidated judgment appealed from dealt with this question alone, and maintained the plaintiff’s right of preference. It did not deal with the remainder of the proceeds or other attachment suits. While we think it is the proper course in such cases to form a coneursus and let judgment be rendered contradictorily with all parties in interest; yet it was not done, and we must take the case as we find it. Succession of Durand, 34 An. 585; Succession of McDowel, 35 An. 1025.

We are clearly of the opinion that we have no jurisdiction in the premises, and the appeal must be dismissed.

It is therefore ordered and decreed that the appeal in this ease be and the same is hereby dismissed.

On Application for Rehearing.

The opinion of the court was delivered by

Bermudez, C. J..

The parties whose pretensions were submitted to the lower court for adjudication, did not together claim an amount exceeding $2000; and although the proceeds of sale, out of which they sought to be paid the amount of the vendor’s lien, exceeded that sum, the lower court was not called upon to deal with the disr position of the remainder of the fund, and it accordingly abstained from doing so. It could not, and did not, therefore, render a judgment for the distribution of a sum exceeding $2000.

It could have rendered no judgment as to the surplus which would have bound the parties claiming it, and who are not parties to the proceeding now before us.

Rehearing refused.  