Opinion
No. 39024.
May 31, 1949. Rehearing Denied June 30, 1949.
Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; Charles A. Holcombe, Judge.
Suit for injunction by Lyman L. Plauche and others against Harry J. Albert. From the judgment, defendant appeals.
Case ordered transferred to the Court of Appeal for the first circuit.
George S. Womack, Kemble K. Kennedy, Durrett Hardin, Baton Rouge, for defendant and appellant.
De Blieux Hinton, Baton Rouge, for plaintiffs and appellees.
The defendant, the owner of a lot of ground located in North Goodwood, a subdivision located in the Parish of East Baton Rouge, has appealed from a judgment enjoining him from using a building located thereon for any other purpose than a single family dwelling or a garage located not nearer than seventy-five feet from Donmoor Avenue as provided in the building restrictions of the subdivision.
On examination of the record, we find no affirmative showing to vest this Court with jurisdiction. There is no affirmative allegation or proof that the amount in controversy or the right in contest exceeds the value of $2000.00, exclusive of interest. Under the plain provisions of the Constitution, the amount in dispute must exceed $2000.00, exclusive of interest, to vest this Court with jurisdiction. Article 7, Paragraph 10 of the Constitution of 1921. The amount in dispute as used in the Constitution includes within its meaning the value of the thing in contest, where a thing, instead of an amount, is in dispute. Baker v. Duson, 192 La. 391, 188 So. 40. We cannot entertain the appeal even though no motion to dismiss has been made for the reason of our lack of jurisdiction. Nelson v. Continental Asphalt Petroleum Co., 157 La. 491, 102 So. 583.
Under the provisions of Act No. 19 of 1912, we are authorized to transfer the appeal to the proper court rather than dismiss it.
For the reasons assigned, this case is ordered transferred to the Court of Appeal for the First Circuit, provided the appellants file the record in that court within thirty days from the date that this decree becomes final; otherwise, the appeal shall be dismissed. The appellants to pay the cost of the appeal to this Court and all other costs are to await the final disposition of the cause.
O'NIELL, C. J., takes no part.