90 So. 366 | La. | 1921
Plaintiff sought by mandamus to compel defendant to transfer to his name a share of stock in defendant corporation of the alleged par value of $100. There was judgment in his favor in- the trial court, and defendants appealed to the Court of Appeals for the parish of Orleans. In the latter court plaintiff moved to dismiss the appeal for the alleged lack of jurisdiction ratione materise.
The motion was sustained, and the appeal dismissed. The record is before us on writ of review.
After the motion to dismiss was filed, .defendants offered affidavits showing that the book value of the stock was $137.17, but did not' disclose the date of such valuation, while plaintiff filed a counter affidavit that the stock was worth not more than $100. The Court of Appeals considered both affidavits, and held that, in effect, one offset the other, but that plaintiff’s affidavit was corroborated, as stated by the organ of the court, by the fact that appellant liad given bond for a suspensive appeal for only $100, and thereby conceded that the amount in dispute was less than $100. However,. examination of the record shows that, while the order of the trial court fixed the suspensive bond at $100, the amount of the bond actually given was $200, and that the Court of Appeals was misled by that circumstance; but on rehearing the court held that the order controlled, and that, in so far as the bond exceeded the amount named in the order, it was ineffective.
We have concluded that the proper disposition of the case would he for the Court of Appeals to reinstate this case on its docket, and to remand same to the trial court for the purpose of taking testimony to determine the value of this stock, so that the motion to dismiss the appeal may he properly disposed of.
It is therefore ordered, adjudged, and decreed that the judgment of the Court of Appeals for the parish of Orleans dismissing this case be, and the same is hereby, annulled, avoided, reversed, and it is now ordered, adjudged, and decreed that this case be remanded to the trial court for the pulposo of taking testimony as to the value of said stock in order- tha-t the motion to dismiss the appeal in this case may be disposed of upon such testimony and in due course.
