Opinion
No. 8027.
September 30, 1953. Rehearing Denied December 2, 1953.
APPEAL FROM TENTH JUDICIAL DISTRICT COURT, PARISH OF RED RIVER, L. PAUL STEPHENS, J.
Henry W. Bethard, Jr., Coushatta, Edward S. Robertson of Brumfield, Hebert Rush, Baton Rouge, for appellant.
William T. Pegues, Colvin Hunter, Mansfield, for appellee.
This is a petitory action by plaintiff alleging that she is the owner of an undivided one-half interest in 150 acres of land in Sections 7 and 18, Township 13 North, Range 10 West, Red River Parish, Louisiana, described in detail in the petition.
An exception of no cause and no right of action was filed, heard and sustained by the lower court, and plaintiff's suit dismissed at her costs. Before the decree was signed, the minutes of the district court recite that, "It is stipulated by both counsel for plaintiff and defendant that the lands involved in said suit are of a value in excess of $2,000.00."
A suspensive appeal was perfected to the Honorable Supreme Court, which court declined jurisdiction, and transferred the appeal to this court, 65 So.2d 138 for the reason that appellate jurisdiction cannot be conferred by consent of the parties, and also held that the affidavit of counsel could not be considered in an appellate court. Numerous recent cases were cited.
For the same reasons assigned by the Supreme Court, we cannot accept jurisdiction of the appeal, and will remand the cause to the lower court for the purpose of introducing testimony to establish the value of the property in contest in order to fix appellate jurisdiction.
In this court plaintiff filed a motion to remand the cause to the lower court to allow plaintiff to amend her original petition to show acceptance of her marital community.
In as much as we have declined jurisdiction and are remanding this cause to the lower court, plaintiff may urge this motion in the lower court.
For these reasons this cause is remanded to the Honorable Tenth Judicial District Court, Parish of Red River for the purpose of introducing testimony to establish the value of the property in contest, and to allow plaintiff an opportunity to urge her motion to amend the original petition. Thereafter, when appellate jurisdiction has been established, appeal may be taken to the proper appellate court. Costs of this appeal to be paid by appellant. All other costs to await final disposition of this cause.