Smith v. Atkins

• Decision Date: 31 October 1945
• Docket Number: 6866.
• Citation: 23 So.2d 649
• Court: Court of Appeal of Louisiana — District of US
• Parties: SMITH v. ATKINS.

23 So.2d 649

SMITH v. ATKINS.

No. 6866.

Court of Appeals of Louisiana, Second Circuit

October 31, 1945

Robert J. Newson, of Shreveport, for appellant.

Hussey & Smith, of Shreveport, for appellee.

HARDY, Judge.

This is an action by the heirs of John Smith seeking to recover the value of improvements constructed by the said Smith on property belonging to the deceased husband of this defendant. This suit is an outgrowth of extended litigation between these parties or their predecessors in title, the subject matter of which litigation has been passed upon by this Court and reviewed by the Supreme Court. This suit was brought after the judgment of the Supreme Court as reported in Atkins v. Smith, 207 La. 560, 21 So.2d 728.

Defendant filed a plea of res adjudicata and an exception of no cause or right of action, which pleas were sustained by the district judge and plaintiff's suit accordingly dismissed.

Defendant-appellee has filed a motion to dismiss the appeal, directed at the Court's lack of jurisdiction ratione materiae.

Since the amount shown by the pleadings to be in dispute determines the jurisdiction of the appellate court, reference must be had in the instant case to the prayer of plaintiff's petition, which discloses that judgment is sought: 'In the sum of Eighteen Hundred ($1800.00) Dollars plus Five Hundred ($500.00) Dollars attorney's fees, or in the alternative Eleven Hundred ($1100.00) Dollars, plus Five Hundred ($500.00) Dollars attorney's fees.'

In support of the motion to dismiss it is argued on behalf of appellee that the aggregate amount of plaintiff's main demand including attorney's fees is $2,300. Acceptance of this contention, of course, removes the controversy from the jurisdiction of this Court, since Article 7 of Section 10 of the Constitution of the State of Louisiana confers jurisdiction in civil suits, where the amount in dispute exceeds $2,000, exclusive of interest, upon the Supreme Court.

In support of the motion, counsel for mover cites the opinion of this Court in Richland State Bank v. Brock et al., 177 So. 454, and the opinion of the Court of Appeal for the First Circuit in Hammond Box Company, Inc. v. Independence Strawberry Co-Operative Association, 194 So. 95. We do not find these authorities applicable. In our opinion, there is a clear distinction between cases in which claims for attorney's fees arising from contract between the parties, or from the provisions of special statutes providing for attorney's fees, are coupled with the main demand, and those in which claims for attorney's fees are not predicated upon contractual or statutory provisions. The cases cited fall within the first classification.

Nor do we find that the case of Robin v. J. Thomas Driscoll, Inc La.App., 197 So. 307, which is the sole authority cited by counsel for plaintiff-appellant in opposition to the motion to dismiss, is pertinent. The Driscoll case involved a continuing daily penalty. It was this penalty and not the allowance of attorney's fees in the case that determined the matter of jurisdictional amount.

Notwithstanding the fact that neither a contractual nor statutory allowance of attorney's fees is involved in the case before us, examination of plaintiff's petition clearly indicates that if the claim on the main demand arising out of a tortious and illegal seizure and sale is established, there would be, in our opinion, a corollary right to attorney's fees.

Inasmuch as plaintiff's...