Buras v. Fidelity & Deposit Co. of Maryland
| Decision Date | 29 April 1940 |
| Docket Number | 35766. |
| Citation | 196 So. 335,195 La. 244 |
| Parties | BURAS et al. v. FIDELITY & DEPOSIT CO. OF MARYLAND. |
| Court | Louisiana Supreme Court |
Appeal from Civil District Court, Parish of Orleans; William H Byrnes, Jr., Judge.
Action by Mrs. Ben V. Buras and another against the Fidelity & Deposit Company of Maryland, to recover amount of purchase price paid under bond for deed agreement. From a judgment for plaintiffs, defendant perfected a suspensive appeal. On plaintiffs' motion to dismiss the appeal.
Decree in accordance with opinion.
Where Supreme Court has no jurisdiction on appeal because the amount in controversy does not exceed $2,000, it may transfer the appeal to the proper Court of Appeal rather than dismiss it. LSA-R.S. 13:4441, 13:4442; LSA-Const.1921, art. 7, § 10.
P. M. Milner, of New Orleans, for appellant.
J. A Woodville and J. L. Warren Woodville, both of New Orleans for appellees.
On August 27, 1927, plaintiff and her husband entered into a ‘ Bond for Deed’ agreement with Priest, Montagnet & Roshko, Inc., real estate agents of the City of New Orleans, to purchase Lots Nos. 3 and 4 in Block No. 5 on the map of Roseland Park Subdivision for the consideration of $1,250. The defendant, Fidelity & Deposit Company of Maryland, was surety for this corporation for the years 1927, 1928 and 1929, on a bond executed under the terms and provisions of Act 236 of 1920.
Plaintiffs allege that on November 29, 1927, the name of the corporation was changed from Priest, Montagnet & Roshko, Inc., to Montagnet & Jones, Inc., and that on or about the 21st day of February, 1929, upon completion of all their payments, they wrote to Montagnet & Jones, Inc., requesting that a good and valid title be made to them translative of the lots in question but that, in spite of repeated demands, plaintiffs have never been able to secure title to the real estate described in the ‘ Bond for Deed.'
On June 16, 1938, plaintiffs brought the present suit against the Fidelity & Deposit Company of Maryland, as surety on the ‘ Bond for Deed,’ to recover the amount of the purchase price paid in the sum of $1,250, with legal interest from February 21, 1929, until paid, together with ten per cent attorney's fees, under the provisions of Act 225 of 1918, on the amount of the principal and interest due.
Judgment was rendered in favor of plaintiffs for the sum of $1,250, with interest and attorney's fees, as prayed for.
From this judgment, the Fidelity & Deposit Company of Maryland was granted a suspensive appeal to this court, which was duly perfected and filed here.
Plaintiffs and appellees move the court to dismiss the appeal for the following reasons:
‘ The prayer of the petition is for a judgment in the principal sum of $1,250.00, with legal interest for some nine years and ten per cent penalties.
‘ Sec. 10 of Art. 7 of the Constitution of 1921, establishes appellate jurisdiction in this Court ‘ in civil suits where the amount in...
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