New Iberia Telephone Exchange v. Cumberland Telegraph And Telephone Co

• Decision Date: 01 May 1899
• Docket Number: 13,125
• Citation: 51 La.Ann. 1022,25 So. 975
• Court: Louisiana Supreme Court
• Parties: THE NEW IBERIA TELEPHONE EXCHANGE v. THE CUMBERLAND TELEGRAPH AND TELEPHONE CO

25 So. 975

51 La.Ann. 1022

THE NEW IBERIA TELEPHONE EXCHANGE v. THE CUMBERLAND TELEGRAPH AND TELEPHONE CO

No. 13,125

Supreme Court of Louisiana

May 1, 1899

Argued April 17, 1899

ON APPEAL from the Twenty-Fourth Judicial District Court for the Parish of St. Mary. Allen, J.

Milling & Sanders, for Plaintiff and Appellant.

Charles A. O'Niell, for Defendant and Appellee.

OPINION

BREAUX J.

ON MOTION TO DISMISS THE APPEAL.

Defendant filed a motion to dismiss the appeal on the ground that the order of appeal was defective, for the reason that it did not designate to which court it was taken and the return day of the appeal; and on the further ground that the Supreme Court is without jurisdiction ratione materiae.

The record shows that on account of plaintiff's counsel the appeal was made returnable "to the proper court according to law."

Two days after the appeal had been granted, plaintiff filed a bond of appeal, reciting in the bond that it had obtained an order of appeal from the judgment, which had been made returnable to this court.

In our view, this order is scarcely the order required under the statute. We think, in such orders, it should be made to appear to which court the appeal is returnable, whether to the Circuit Court or to the Supreme Court, otherwise the appellee might have just ground to complain.

We do not, however, dismiss the appeal on this ground, as the appeal bond was filed almost immediately after the order of appeal had been granted as before stated.

We will not dismiss this appeal, as the bond and a notice of appeal cure the defect. The ruling, we must say, applies only to the state of facts here.

As relates to the notice of appeal, the second ground urged to dismiss the appeal, and the mistake made as to date, it appears that notice was given to the appellee to appear before this court at its next regular return day. A date was superadded, which was erroneous; it was, however, mere surplusage; it was not misleading; besides, it was the error of the clerk of the court, and not an error which should prejudice plaintiff's right of appeal, as he had nothing to do with the error.

This brings us to the question of jurisdiction ratione materiae raised by the appellee. Its contention is that the petition prays only for five hundred dollars damages and, therefore, the case does not come within the jurisdiction of this court.

We have analyzed the petition as relates to this ground urged for dismissal. Plaintiff alleged that it is the owner, and in possession of various telephone exchanges and is lessee of the Teche and Vermillion telephone line running through the parishes of Iberia Vermillion, Lafayette, and St. Mary; that the plaintiff corporation has an exchange in the town of Franklin, connected by wire with its other exchanges; that there is another company, known as the Cumberland Telegraph and Telephone Company; that it has been reconstructing its wires in the town of Franklin; and that its agents have maliciously and wantonly, against the protest of plaintiff, pulled and dragged the wires belonging to the defendant company, over plaintiff's telephone wires, injuring, breaking down and crossing them, making it impossible for its patrons and customers to get connection with the central station and possessories; that these agents have cut guy wires which support the poles of plaintiff; that defendant in thus crossing plaintiff's wires has caused plaintiff great damage, resulting in causing its customers and patrons to be displeased with the telephone system; that in many cases, they refused to pay their rent, in consequence that the act of defendant will cause it to lose many of its customers; that it has caused great annoyance, trouble and expense; that these illegal acts have caused damages already to the sum of $ 500.00; and that if defendant is not restrained, it will result in the loss of all plaintiff's customers and the entire destruction of its telephone system in the parish of St. Mary.

Plaintiff having alleged that the trespass and injury complained of upon its telephone lines and exchange would result in the total loss if the injunction did not issue; and having shown, by evidence of one of its witnesses, that this telephone exchange is worth $ 3000.00, we think that the court has jurisdiction.

The motion to dismiss the appeal is, therefore, denied.

ON THE MERITS.

The facts are that the suit was brought to recover damages and to have an injunction made perpetual to prohibit the injuries complained of.

Defendant filed an answer, pleading the general denial and specially averred that one of its agents clipped a guy wire as a matter of necessity, in order to pass their own wires; that before clipping the wire they connected the space with one equally as strong as that which they had clipped. They made other allegations in their defense, going to deny the charges made by plaintiff against them.

The evidence discloses that in some places in the town of Franklin, plaintiff's wires are suspended on poles immediately above those of defendant's. Plaintiff obtained a franchise from the town and defendant also held its right from the town.

Plaintiff, in so far as the evidence discloses, is not injured by the fact that defendant's line in some places is strung above its own. It complains of the manner the re-stringing was done. These respective rights are not in dispute. Plaintiff complains of the manner in which the defendant undertook to reconstruct and restring its lines.

It appears that in rebuilding...