45 So. 263 | La. | 1907
Motion to Dismiss Appeal.
Bernard Schlemmer is a baker. 1-Ie sued out an injunction against Frank T. Howard, receiver of the New Orleans Waterworks Company, and George W. Palfrey, his agent.
The purpose of the injunction sued out by Schlemmer is to restrain defendant from cutting off the supply of water he is in need of in carrying on his bakery business.
His allegations are that he has provided himself with a meter, and that he is quite willing to pay for the water supplied by the waterworks company at the rate of 15 cents per 1,000 gallons.
His complaint is that the company is unwilling to let him use a meter and is about to put an end to the supply of water he needs; that if the company carries out its intention it will compel him to close his bakery, and that the business of the bakery will be ruined; that his payment heretofore for water has been a flat rate of $13.45 per quarter.
He charges that the rate is not what it should be.
He adds that the right to water supply is worth to him over $100, and that if the company is not restrained his damages will be over $2,000.
He asks as relief that defendant be enjoined as long as he pays 15 cents per 1,000 gallons for the water used.
Defendant moved to vacate the order in the district court, and the court granted the motion, and dissolved the injunction.
The ground of the motion in the district court was that the court has no jurisdiction,
The rule was tried and made absolute, and dismissal followed as before stated; and plaintiff has appealed.
The grounds of the motion to dismiss the
This is the sole issue involved in this motion to dismiss the appeal.
It is also argued by plaintiff in the motion to dismiss that the real amount in controversy is the difference between the meter rate and the flat rate — -i. e., 15 cents, as before stated, or $13.45 per quarter charged; that, inasmuch as one has the right to stop taking of water at the end of any quarter, the difference would be very small; and that it does not follow that there would be any difference at all, for it may be that at the rate it would be if the meter were used that it would be even less than the fiat rate, and that plaintiff asks no damages against defendant; the $2,000 alleged being purely fictitious and inserted to give this court jurisdiction.
To sustain the contention defendant cites Saux v. Patton, 34 La. Ann. 1155, in which it was held that without a money demand this court has no jurisdiction.
In the cited case the court states that in the body of the petition there was an allegation that the damages will be at least $500, and that as a consequence it was evident that the case was not within the jurisdiction of this court.
To come within this court’s jurisdiction plaintiff alleged that if the supply of water be cut off he would be damaged to the amount of over $2,000.
This is an allegation in the body of the petition.
The $2,000 damages are to our mind fictitious, and the only purpose is to give this court jurisdiction. It is not possible that plaintiff will ever suffer that amount of damages because of the difference in the cost of water supply. The allegation does not bring the case within our jurisdiction, and the appeal is therefore dismissed.
The case of Saux v. Patton, 34 La. Ann. 1155, is pertinent; also the case of Harmony Club v. N. O. Gaslight Co., 42 La. Ann. 453, 7 South. 538.
There can be no ruin as alleged, for the plaintiff would always have it in his power to pay under protest for the water supply. At any rate, the amount claimed does not seem to have the least foundation in fact.
The appeal is therefore dismissed.
