This is a partition suit in which the property was ordered to be sold to effect a partition under a judgment of the civil district court for the parish of Orleans, rendered on January 31, 1928.
The judgment of the lower court was affirmed on appeal to this court (166 La. 905, 118 So. 78), and on September 27, 1928, the property was sold at judicial sale and was bid in by the defendant, Mrs. Henrietta S. Carbajal.
Defendant declined to comply with the adjudication within the 45 days allowed by the judgment, and also within the additional time granted by plaintiff at her request, and a rule was taken against her to show cause why the property should not be sold a la folle enchere under article 2611 of the Civil Code.
Judgment was signed January 7, 1929, making the rule absolute. On January 16, 1929, defendant prosecuted two appeals from this judgment. One of these appeals was taken to this court and the other to the Court of Appeal for the Parish of Orleans (see 121 So. 214).
Appellant contends that as the appeal to the Court of Appeal was lodged there first and is still undetermined, we should suspend all action on the appeal to this court.
Appellant also contends that the Supreme Court is without jurisdiction, as no amount is *Page 789 in dispute and there is no fund for distribution in this case, which is merely an appeal from a judgment on a rule against a purchaser at a judicial sale to enforce the right to have a resale a la folle enchere, and the only relief is that the court shall direct that the property be again advertised and offered for sale.
Considering first the question of the jurisdiction of this court, we find that this is a partition suit involving property worth over a million dollars, as shown by the record.
In an action of partition the value of the whole property, and not the value of the share or shares of the litigants, is the test of the jurisdiction of the Supreme Court. Gray v. Gray, 36 La. Ann. 868; Ruthenberg v. Helberg, 43 La. Ann. 410, 9 So. 99; Brown v. Green, 132 La. 1090, 62 So. 154.
As stated, we have already affirmed the judgment ordering the sale of the property to effect a partition, and, considering the value of the property, we have jurisdiction as to the main demand. Const. 1921, § 10, art. 7.
Section 1 of article 7 of the Constitution of 1921 provides: "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."
Without a resale of the property it is obvious that a partition cannot be effected. The order for resale, appealed from by plaintiff, is therefore a judgment rendered on an incidental demand necessarily made to complete the partition. As we have jurisdiction of the main demand, the appeal from the judgment on the incidental demand, ordering a resale of the property, lies to this court, under the Constitution.
It is held in Freiberg v. Langfelder, 45 *Page 790 La. Ann. 986, 13 So. 404, cited by defendant, appellant, that two appellate courts cannot have jurisdiction of the same appeal at the same time.
On motion of the appellee in the Freiberg Case, the appeal to the Supreme Court was dismissed for the reason that the appeal taken to the Circuit Court of Appeals, now the Court of Appeal, had been lodged there before the appeal was returned to this court and was still pending there undetermined, and appellant's right was reserved to take a new appeal to the Supreme Court in case the pending appeal in the Circuit Court of Appeals should be dismissed for want of jurisdiction.
We decline to follow that decision in the present case, for the reason that this court has actual jurisdiction of the present suit, and there is no necessity for dual appeals in this case, under the Transfer Act of 1912 (Act No. 19 of 1912). Since we have jurisdiction, we must exercise it. Henry v. Tricou, 36 La. Ann. 519; Pinsky v. Resweber, 49 La. Ann. 246, 21 So. 251.
The Freiberg Case was decided before the adoption of Act 56 of 1904, authorizing either the Supreme Court or the Courts of Appeal to transfer to the other the record brought up through mistake in the jurisdiction, instead of dismissing the appeal.
Later, this act was amended by Act 19 of 1912 so as to authorize the Supreme Court to transfer to the Courts of Appeal any case that might be erroneously transferred to the Supreme Court by the Courts of Appeal, to be there proceeded with as if it had never been transferred to the Supreme Court.
The part of section 1 of Act 19 of 1912 pertinent to the present case reads as follows: "Be it enacted: * * * That in any case otherwise properly brought up on appeal to the Supreme Court, or to any of the *Page 791 Courts of Appeal throughout the state, the judges of said courts shall have the right, in cases where the appellant or appellants shall have appealed to the wrong court, to transfer said case to the proper court instead of dismissing the appeal, and the court to which said case shall have been transferred, will proceed with the same in the same manner as if said case had been originally appealed to the proper court."
The practice prevailing in this state, prior to the adoption of Act 56 of 1904, the original transfer act, of prosecuting dual appeals from the same judgment of a district court, is no longer necessary, as the appeal may now be transferred to the proper appellate court, should a motion to dismiss be filed because of lack of jurisdiction. Act 19 of 1912.
It is therefore ordered that the motion filed by defendant, appellant, to suspend action in this case, or, in the alternative, dismiss the appeal, be overruled.
On the Merits.