Summary
In Louisiana State Board of Medical Examiners v. McHenery, 222 La. 984, 64 So.2d 242, the Supreme Court transferred to the Court of Appeal, Second Circuit, a similar case as the case at bar, stating that the amount involved was not shown to have been in excess of $2,000, citing authorities.
Summary of this case from Louisiana State Board of Medical Examiners v. ArtonOpinion
No. 40955.
March 23, 1953.
APPEAL FROM NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, STATE OF LOUISIANA, HONORABLE WALTER M. HUNTER, J.
K. Hundley, Alexandria, for Charles K. McHenery, defendant-appellant.
Irving Ward-Steinman, Alexandria, for Mrs. Roy O. Martin et al., intervenors, appellants.
Gist, Thornton Murchison, Alexandria, for Louisiana State Board of Medical Examiners, plaintiff-appellee.
Injunction proceedings were brought by the Louisiana State Board of Medical Examiners to restrain the defendant, Charles K. McHenery, from practicing medicine without obtaining a certificate as required under Act No. 56 of 1914 and Act No. 54 of 1918, LSA-R.S. 37:1261-1313.
Defendant filed an exception of no right or cause of action, and answered plaintiff's petition by a general denial of the allegations, except for the admission that he did not possess a certificate authorizing him to practice medicine or midwifery. The exceptions were referred to the merits.
Interventions were filed, but our consideration of these is not necessary because the jurisdictional question presented is controlled by the amount involved in the main demand. Opelousas St. Landry Bank Trust Co. v. Fontenot, 173 La. 430, 137 So. 339 and Hebert v. T. L. James, Inc., 221 La. 1044, 61 So.2d 734.
After a trial on the merits, a permanent injunction was granted, and the intervention was dismissed. From this judgment the defendant and interveners appealed suspensively to this Court. Plaintiff asks that this appeal be dismissed on the ground that this Court is without jurisdiction.
The amount involved herein includes the price of the certificate, the penalty of $50.00 imposed by the trial court, and the award of $50.00 attorney's fees. Obviously, this sum is far below the $2,000.00 jurisdictional amount of this Court. La. Const. Art. 7, Sec. 10; Louisiana Board of Pharmacy v. Smith, 221 La. 1026, 61 So.2d 513; and New Orleans Northeastern R. Co. v. Redmann, 210 La. 525, 27 So.2d 321. Succession of Wesley, 222 La. 411, 62 So.2d 625.
Section 1, Article 7 of the Constitution of 1921 provides that
"In all cases where there is an appeal from a judgment on a reconventional or other incidental demand, the appeal shall lie to the court having jurisdiction of the main demand." Hebert v. T. L. James, Inc., supra.
Act No. 19 of 1912, LSA-R.S. 13:4441 authorizes the transfer of an appeal to the proper court rather than its dismissal. Therefore,
It is ordered that this case be and it is hereby transferred to the Court of Appeal, Second Circuit, the transfer to be made within 30 days from the date on which this decree becomes final; otherwise, the appeal shall be dismissed. Costs of this Court to be borne by appellants.