United States Fidelity & Guaranty Co. v. Aetna Casualty & Surety Co.

Full title: UNITED STATES FIDELITY AND GUARANTY COMPANY ET AL., PLAINTIFFS-APPELLANTS…

Court: Court of Appeal of Louisiana, Second Circuit

Date published: Apr 3, 1974

293 So. 2d 197 (La. Ct. App. 1974)

Opinion

No. 12358.

April 3, 1974.

APPEAL FROM SEVENTH JUDICIAL DISTRICT COURT, PARISH OF CONCORDIA, STATE OF LOUISIANA, HONORABLE RICHARD P. BOYD, JR., J.

Dale, Richardson Dale, by James H. Brown, Jr., Vidalia, for Raymond Vaughn, plaintiff-appellant.

Gold, Hall, Hammill Little, by John F. Simon, Alexandria, for The Aetna Casualty Surety Co. and Don Ater, d. b. a. Ater Chevrolet Co., defendants-appellees.

Before AYRES, BOLIN, PRICE, HALL and WILLIAMS, JJ.

AYRES, Judge.

Before us is a motion filed on this date by The Aetna Casualty and Surety Company and Don Ater, d. b. a. Ater Chevrolet Company, to dismiss an appeal taken by Raymond Vaughn, one of the plaintiffs, to this court from a judgment in the above-styled cause of the Honorable Seventh Judicial District Court in and for Concordia Parish, Louisiana.

This court is without jurisdiction to entertain this appeal or to render any judgment in the cause on the appeal. The appeal in this cause properly lies to the Court of Appeal for the Third Circuit of the State of Louisiana.

For related and incidental matters, see an opinion of the Third Circuit of March 6, 1974, in United States Fidelity and Guaranty Company et al. v. Aetna Casualty and Surety Company et al., bearing No. 4520 of the docket of that court ( 290 So.2d 796).

While under the provisions of LSA-C.C.P. Art. 2162, we may be authorized, under certain facts and circumstances, to dismiss appeals wrongfully or improperly taken to this court, the same authority provides that such an appeal may be transferred to the proper appellate court. A transfer rather than a dismissal of the appeal appears to us to be the better practice inasmuch as whatever action is thereafter taken would be by and before a court with jurisdiction rather than by a court without jurisdiction.

Therefore, the appeal taken in the foregoing and above-styled cause to this court should be, and it is hereby, transferred to the Honorable Court of Appeal, Third Circuit, State of Louisiana.

It is accordingly directed that a copy of this order, the motion to dismiss and the attachments thereto be forthwith transmitted to the Honorable Court of Appeal, Third Circuit, State of Louisiana.