Lusco v. McNeese

• Court: Court of Appeal of Louisiana
• Writing for the Court: TATE
• Citation: Lusco v. McNeese, 86 So.2d 226 (La. App. 1956)
• Decision Date: 20 March 1956
• Docket Number: No. 4177,4177
• Parties: Theresa LUSCO, Plaintiff-Appellant, v. Queenie Scroggs McNEESE, Defendant-Appellee.

Page 226

86 So.2d 226

Theresa LUSCO, Plaintiff-Appellant, v. Queenie Scroggs McNEESE, Defendant-Appellee.

No. 4177.

Court of Appeal of Louisiana, First Circuit.

March 20, 1956.

Talley, Anthony & Johnson, Bogalusa, for appellant.

Henry N. Richardson, Bogalusa, France W. Watts, Jr., Franklinton, for appellee.

TATE, Judge.

This suit is to recover three counters and a stainless steel coffee urn hood allegedly removed by defendant from plaintiff's premises. Plaintiff appeals from judgment sustaining an exception of no right and cause of action.

1. Motion to Dismiss the Appeal.

Defendant-appellee moved to dismiss the appeal because: (a) the original petition filed herein did not allege the value of the movable property involved in this suit; (b) the record reflects that prior to the present appeal, on April 12, 1954, appellant moved for and was granted a devolutive appeal to the 22nd Judicial District Court.

As to the latter point, 'It is well settled that an order of appeal has no effect unless the appeal bond required as a condition on which the order is granted is filed within the time required by law for taking an appeal (cases cited)', Bannister v. Chisesi & Longo, La.App., 5 So.2d 145, at page 147; and the record indicates that no bond was filed perfecting the former appeal.

The Courts of Appeal have jurisdiction of appeals from city courts where the amount in dispute exceeds one hundred dollars, exclusive of interest; if a lesser amount is involved, the appeal is returnable to the appropriate District Court; Article VII, § 51, Louisiana Constitution of 1921, LSA; see also LSA-R.S. 13:2091, subd. E regulating appeals specifically from Bogalusa City Court.

In appeals from District Courts, 'the Courts of Appeal as courts of general appellate jurisdiction must accept jurisdiction of all appeals unless the record affirmatively shows appellate jurisdiction in the Supreme Court', Gaylord Container Corporation v. Stilley, La.App. 1 Cir., 79 So.2d 109, at page 110. Whether or not we are under the same duty to accept appeals from city courts unless the record affirmatively indicates the appeal should be returned to the district court, the present record contains a verified amended and supplemental petition presented to the lower court in connection with petitioner's application for rehearing which shows the property involved to have a value of $295, or within our jurisdictional amount. The motion to dismiss the appeal is denied.

2. On the Merits.

The allegations and prayer of plaintiff's original petition herein are as follows, in full:

'The petition of Theresa G. Lusco, of legal age and a resident of Bogalusa, Washington Parish, Louisiana, with respect unto this Honorable Court represents that:

I.

'Queenie Scroggs McNeese, of legal age and a resident of Bogalusa, Washington Parish, Louisiana, formerly occupied the property of your petitioner at 510 Columbia Street wherein she ran a restaurant.

II.

'The said defendant, Queenie Scroggs McNeese, unlawfully removed three counters and one stainless steel hood used for the coffee urn from the said premises.

'Wherefore, petitioner prays that defendant herein be duly cited according to law that a copy of this petition be served on her and that after legal delays elapse and due proceedings that there be judgment decreeing plaintiff, Theresa G. Lusco, the lawful owner of the three counters and the stainless steel hood used for the coffee urn and ordering the defendant, Queenie Scroggs McNeese, to return the said counters and stainless steel hood, for all general and equitable relief in the premises and for all costs of this suit.' (Italics ours.)

Defendant's answer was a general denial.

At the trial on April 12, 1954, after two questions to the first witness (defendant called as of cross-examination), defendant objected to further questioning and filed an exception of no right and no cause of action, which was sustained and judgment signed the same date.

Defendant-appellee argues that this action must be a possessory or petitory action since for the ownership or possession of property, and that therefore plaintiff has no cause of action herein (where movable property is concerned) since these actions are by definition restricted to 'claims made on immovable property', Article 4, C.P.; see also Articles 5, 6, 60, C.P.

To the contrary, of course, since the subject matter herein is movable property, this action cannot possibly be a real action (possessory or petitory or otherwise.) 'Actions tending to recover an immovable, or a real right, or an universality of things, such as an inheritance, are considered as real; while actions for the recovery of a movable or of a sum of money, though accompanied with a mortgage, are not real actions', Article 12, Code of Practice. (Italics ours.)

Among the multitudes of cases concerning recovery of movable property allegedly improperly retained by another, are the following in which the lawful owner recovered possession of the property from the possessor, Donnell v. Gray, 215 La. 497, 41 So.2d 66, (oil well equipment); Fontenot v. Johnson, La.App. 1 Cir., 77 So.2d 82, (two railroad jacks); Schutzman v. Munson, La.App. 1 Cir., 51 So.2d 125 (cows and calves); Crain v. Crain, La.App. 1 Cir., 29 So.2d 404 (mule.)

Defendant-appellee further urges that the exception of no cause of action was properly sustained because the petition did not allege that plaintiff was the owner of the movable property allegedly removed by defendant from premises owned by plaintiff, and recovery of which is sought herein.

Although plaintiff's original petition above set forth may not be artistically drawn and was probably subject to an exception of vagueness, we...