Opinion
No. 40716.
February 27, 1952.
APPEAL FROM NINETEENTH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA, HONORABLE G. CALDWELL HERGET, J.
Harvey G. Fields, Farmerville, Brittmar P. Landry, Van Buren Harris, and Carroll Montet, all of New Orleans, for defendant-appellant.
Albert Alba, Harold Judell, New Orleans, Harrison G. Bagwell, Baton Rouge, John Minor Wisdom, New Orleans, for appellees.
This Court is without jurisdiction of this appeal, since the issue presented is not the contest of an election, as contemplated in LSA-R.S. 18:364, but involves only the right of plaintiffs, by mandamus, to compel the Republican State Central Committee of Louisiana, through its chairman, to promulgate the election returns of the Republican primary called for January 15, 1952 — there being no amount in dispute or fund to be distributed and the other provisions of the Constitution by which appellate jurisdiction is vested in this Court being inapplicable. La. Const. of 1921, Art. 7, Sec. 10. See Ginn v. Village of Bonita, 220 La. 336, 56 So.2d 567; Grace v. Boggs, 220 La. 22, 55 So.2d 768; Orleans Parish School Board v. City of New Orleans, 219 La. 1063, 55 So.2d 245.
The motion to dismiss the appeal filed on behalf of the appellees (plaintiffs), based on the contention that the appellants (defendants) have lost their rights by failing to take a "valid appeal" within the time prescribed by law under LSA-R.S. 18:364 and 18:381, is without merit in view of the provisions of LSA-R.S. 13:4441, which state that "In any case otherwise properly brought up on appeal to the Supreme Court * * * the judges of these courts may, in cases where the * * * appellants shall have appealed to the wrong court, transfer the case to the proper court instead of dismissing the appeal. * * *"
It is therefore ordered that this case be transferred to the Court of Appeal, First Circuit, the transfer to be made within five days from the date of this decree; otherwise, the appeal shall be dismissed; the appellant to pay the costs of the appeal to this Court and the costs of transferring the case to the Court of Appeal.