text:
    229 La. 376
    L. L. ROBINSON v. Steve MAFRIGE et al.
    No. 41964.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    Rehearing Denied Feb. 20, 1956.
    Morgan, Baker & Skeels, Shreveport, for plaintiff-appellant.
    Jackson, Mayer & Kennedy, Shreveport, for defendants-appellees.
   HAMITER, Justice.

Plaintiff, L. L. Robinson, is appealing from a judgment which dismissed his suit (instituted pursuant to certain provisions of LSA-R.S. 47:2228) to confirm a tax adjudication to him in 1947 of undivided interests in a, tract of land situated in Caddo Parish. The judgment further decreed the sale to be a nullity and ordered plaintiff to execute redemption deeds affecting the property to the defendants upon their paying past due taxes and interest.

The pertinent facts of the cause are not in serious dispute and appear to be those hereinafter set forth.

At a tax sale in 1941 (not that on which this suit is founded), conducted under an assessment to “M. J. Bashara et al.", plaintiff purchased the entirety of such tract (previously he had owned no rights therein) . However, in 1945 he executed redemption and quitclaim deeds in favor of some of the tax debtors (the defendants • herein) which covered their respective interests, retaining for himself the remaining undivided interest.

In 1946, as a conseqúence of the transactions mentioned in the preceding paragraph, plaintiff (a resident of Shreveport) and the defendants (all nonresidents of the state) were co-owners of the property which is described as 77.58 acres — of NE14, 22-21-15, Caddo Parish. And the several undivided interests of the co-owners were listed on the assessment rolls of that parish in the following manner:

“24225 Robinson L. L. 119/320
Stevens Mafrige 1/8
Minerva Unice 1/24
Chas. J. Unice Jr. 1/24
Robt. C. Unice 1/24
Brazo Oil Co. 3/8 &,
Union National Bank of Houston, Texas 1/320 146 Herndon Avenue Shreveport, La”

Particularly noticeable is that the assessment of all interests was made in connection with arid under Robinson’s name and only his address was given. >

Notice respecting the 1946 taxes due on the entire property was mailed solely to plaintiff and at his Shreveport address. He paid only the taxes that were due on his' undivided interest.

On April 10, 1947 the tax collector addressed a registered letter to plaintiff at his Shreveport address informing him ■ that taxes on the undivided interests of his co-owners (the defendants herein, all nonresidents, and who had- received no tax notices) were delinquent and that unless paid within twenty days those, interests would be sold. Plaintiff ignored the letter.

In due course the tax collector advertised the interests of the defendant. nonresidents, ‘ the advertisement having been made in accordance with the rules and law respecting resident, tax debtors; and on June 23, 1947 he adjudicated them to plaintiff for the unpaid 1946 taxes.

Meanwhile (even as early as 1941), the Magnolia Petroleum Company, under- an oil and gas lease held by it and executed by a common ancestor ■ of the litigants, operated on the tract a number of producing oil wells; and that operator paid monthly to plaintiff and to the defendants the oil royalties due under its lease proportionately in accordance with their respective interests, this without, any objection on the part of plaintiff. Furthermore, the oil operations and monthly payments continued uninterruptedly for more than five years after the 1947 tax sale and until July 7, 1952, on which date plaintiff , (for the first time) notified the lessee that he was the owner of the entire tract, having acquired the interests of the defendants under a tax deed executed in 1947.

Shortly after receiving such notice the lessee suspended payment of all oil royalties and informed the defendants of plaintiff’s acquisition at the tax sale. Approximately three months later an attorney representing at least three of the six defendants addressed a letter to plaintiff offering to pay their proportionate -shares of the tax indebtedness and requesting a redemption of their interests. Seven days thereafter, specifically on October 20, 1952, this suit to confirm the tax sale was instituted. The defendants, being nonresidents, were cited through a curator ad hoc to appear and answer the petition within ten days from date óf service.

Upon the elapse of the mentioned ten days, and the defendants not having filed any pleadings, plaintiff’s counsel in open court (without having previously entered a preliminary default) requested that a judgment in accordance with the prayer of the petition he rendered and signed. The request was denied. Thereafter various pleadings were filed, including a “plea of five years peremption and prescription” by plaintiff and also answers and reconvention■al demands by the defendants.

A trial of the merits of the case resulted in the judgment in defendants’ favor above described and from which plaintiff is appealing.

' 'Appellant first complains that the court “erred in not permitting the plaintiff-appellant to read his judgment quieting the tax sale at the First Confirmation Hour following the-elapse of ten days from date of citation and service of the petition on the Curator-ad-Hoc.” ■

The . instant suit is predicated on the second paragraph' of LRS Title 47, Section 2228, reading: “In all cases where tax titles .have been quieted by prescription of five years under the provisions of Séction 11. .of Article X of the Constitution of 1921, the purchaser or his heirs or assigns .may, if he or they so, desire, * * * obtain a judgment of the court confirming the title by suit in the manner and form as herein-above set out, except that the delay lor answer shall be ten days instead of six months, * * *.”

This court has distinguished between actions brought under the two- paragraphs' of the section.- Suits to quiet tax ¡titles under the quoted second paragraph (as in the present case) have been assimilated to ordinary actions, with the regular rules of practice applying. Ashley Co., Limited, v. Bradford, 109 La. 641, 33 So. 634; Boagni v. Pacific Imp. Co., 111 La. 1063, 36 So. 129; Claiborne v. Lezina, 175 La. 635, 144 So. 131 and Le Blanc v. Trahan, 207 La. 171, 20 So.2d 745. Specifically we have held that in such a suit, in the absence of an appearance by the defendant, title can be quieted by judgment only after a default has been regularly taken. Ashley Co., Limited, v. Bradford and Boagni v. Pacific Imp. Co., both supra.

As before shown no preliminary default was entered against these defendants. Consequently, there was no error in the court’s refusal to sign a judgment in plaintiff’s favor immediately on the elapse of ten days following the service of citations.

The second and most serious complaint of appellant is that the district court “erred in not sustaining the plea of five years peremption and prescription filed by plaintiff-appellant.” This plea is based on the above mentioned Section'll, Article 10 (as amended) of the Louisiana Constitution, LSA, the pertinent provisions of which recite: “No sale of property for taxes shall be set aside.for any cause, except on proof of payment of the taxes for which the property was sold .prior to the date of the sale, unless the proceeding . to annul is instituted within six months from service of notice of sale, which ■notice shall not be served until the time of redemption shall have expired and within five years from the date of the recordation of the tax deed, if no notice is given. sjc * sk >’

In opposition. to such plea appellees invoke two exceptions to the quoted constitutional provision which are recognized in the jurisprudence of this state, namely: (1) the adjudication to one of several joint owners of property offered at public auction in the enforcement of delinquent taxes does not divest the other co-owners of their interests, because it operates a payment of the taxes for the joint benefit of the co-owners with the right in the adjudicatee to be reimbursed for his outlays; and (2) an invalid tax sale can be set aside after the five-year period where it is shown that the tax debtor (or his heirs) has remained in actual, corporeal possession of the property. Additionally, appellees oppose the plea on the ground that appellant deliberately attempted to create a situation in which he could taire unfair advantage of his co-owners, and that by such conduct he is precluded from relying on prescription.

It is our opinion that at least the stated second ground of opposition to plaintiff’s plea of “peremption and prescription” is meritorious. Initially to be noticed is that plaintiff offers slight contention, if any, that these defendants received the proper and required delinquent notices. In oral argument his counsel admitted that they “probably did not”; and the brief presented to this court makes no showing that they did, the plaintiff- relying entirely on the curative effect of the five-year peremption or prescription.

Nevertheless, there is no doubt that the defendants were not legally notified of the delinquency. Those furnishing depositions denied having received any notice. And the deputy tax collector, who was called by them as a witness, testified that notice was sent solely to the plaintiff (the only nondelin-quent co-owner) and that the receipt therefor was signed by his wife. Apparently no serious attempt was made to locate the nonresident defendants. As is made plain by the prior dealings between the parties, the collector could have ascertained their addresses by inquiry of the plaintiff who had only a short time before executed quitclaim deeds in favor of them. Nor, according to the collector’s testimony, was any notice even given them (by publication) as for “unknown owners” or “non-residents whose post, office address is unknown”, which is provided for in Section 52 of Act 170 of 1898, as amended, LSA-R.S. 47:2180.

The jurisprudence dealing with such sales is to the effect that the collector is under an obligation to malee some reasonable effort to locate and notify the nonresident tax debtor. If unsuccessful in his attempt, “As a last resort, he must comply with section 52 in order to satisfy the constitutional requirements of notice to delinquent taxpayers.” Salsman v. Bloom, 172 La. 238, 133 So. 760; Messina v. Owens, 207 La. 967, 22 So.2d 286, 289, and cases therein cited. Notice to one co-owner is. not sufficient as to the other co-owners. Adsit v. Park, 144 La. 934, 81 So. 430; Le Blanc v. Babin, 197 La. 825, 2 So.2d 225; Prampin v. Southern Chemical Works, Inc., La.App., 53 So.2d 210; and Splane v. Tubre, La.App., 6 So.2d 361.

Also, it is well established in the jurisprudence of this state that the prescription or peremption of five years provided' for in our constitution; and pleaded herein by plaintiff, does not commence to run so long as the tax debtor is in corporeal possession of the property sold for taxes. Pill v. Morgan, 186 La. 329, 172 So. 409; Westover Realty Co., Inc., v. State, 208 La. 163, 23 So.2d 33; Di Giovanni v. Cortinas, 216 La. 687, 44 So.2d 818; and Thurmon v. Hogg, 225 La. 263, 72 So.2d 500. And it has been held that corporeal possession through-a tenant or “any other person holding for. the account of the owner” (tax debtor) is considered possession by the tax debtor. Adsit v. Park, supra (possession in such case was through a third person by virtue of an oil and gas lease under which there was continuous production); Flanagan v. Land Development Co. of Louisiana, 145 La. 843, 83 So. 39; Mire v. La Salle Realty Co. of Louisiana, Limited, 176 La. 663, 146 So. 326; Pill v. Morgan, supra; Succession of Terrell v. Buckner, La.App., 176 So. 666; and Prampen v. Southern Chemical Works, supra.

The record in the instant case dis-' closes that the lessee of these defendants (the Magnolia Petroleum Company), during the entire five years following the invalid tax sale and also thereafter, operated some thirteen wells on the tract in question and paid royalties under the lease to the defendants as lessors, all with the knowledge of the plaintiff. The latter received royalties only on his fractional interest, and he did not complain to the lessee as to those paid to-defendants' until July 7, 1952. At no time during,such'lengthy period did he seek to have his payments increased. True, shortly prior to the tax sale the plaintiff (in November, 1946) granted a surface lease to the Magnolia Petroleum Company; but it never affected more than his undivided interest.

In addition to the continuous operation of its thirteen swells the lessee has long maintained on. the tra.ct general headquarters for production activities in the area. To this end it erected warehouses, a tool house, a garage, a. meeting' hall, and houses for use as living quarters by some of the employees. Also much equipment has been kept there and employed in the production operations pursuant to the lease contract. These acts, along with the payment of royalties as above shown, constituted sufficient corporeal possession on the part of these defendants (through their lessee) to prevent the running of the five-year' prescription or peremption pleaded and relied on by appellant.

Lenard v. Shell Oil Co., Inc., 211 La. 265, 29 So.2d 844, cited by appellant, is not applicable to the instant case. There the court was dealing with the rights and possession of a claimant to a' mineral servitude as opposed to those of the owner of the surface of the land. The case did not involve the question of thé effect of possession by a lessee (as here) holding from the owner of the fee title (including minerals) and paying oil royalties pursuant to the terms of the lease.

'In view of the above conclusion we need not discuss the stated first and third grounds of opposition offered by appellees to the five-year plea of “peremption and prescription”.

Finally, appellant complains that the district court “erred when it permitted defendant, Brazos Oil Company, to recover, when it was shown that Brazos Oil Company had sold all of its interests to Palmer P. Woods on March 1st, 1951.”

The complaint is not well founded. The statute, under which this action was instituted permits the tax purchaser to cite “the former proprietor or proprietors of the property.” Hence, the Brazos Oil Company (one of the tax debtors) was a,proper party defendant; and it, under a reconventional demand, could seek a setting aside of the invalid tax sale. Also, it was not prohibited from conveying under warranty deed whatever interest it had in the property, just as it did in 1951 when selling to Palmer P. Woods. Accordingly, the steps taken herein by the Brazos Oil Company, in reconvening and in defending the title which it had warranted, were appropriate and in keeping-with the law. ' •

• For the reasons assigned the judgment appealed from is affirmed.


source: Caselaw Access Project

author: HAWTHORNE, Justice.

license: Public Domain

text:
    229 La. 389
    ASSOCIATES DISCOUNT CORPORATION v. Roman BOGARD.
    No. 41890.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    Rehearing Denied Feb. 20, 1956.

      Arthur V.'Flotte, New Orleans,'-for defendant called in warranty and appellant.-

      Louis G. Shushan, Moise S. Steeg, Jr., New Orleans, for plaintiff-appellee.
    Arthur L. Ballin, New Orleans, for defendant-appellee.
   HAWTHORNE, Justice.

Associates Discount Corporation brought this suit to have an Illinois conditional sales contract recognized and enforced, the property described in the contract being a 1951 model Buick. Plaintiff prayed that the above automobile be seized under a writ of sequestration, that the car be sold, and that it be paid the amount of its claim, $2,392.82, from the proceeds of the sale by preference and priority over all other persons. The automobile was seized in this state in the possession of Roman Bogard, who called in warranty his vendor, John H. Smit, Jr., doing business as Smit Motor Sales. After trial on the merits the lower court rendered judgment recognizing the Illinois contract and ordering the property sold and petitioner paid pursuant to the prayer of.its petition. There was also judgment against the warrantor Smit on Bogard’s call in warranty in the sum of $2,450. Only John H. Smit, Jr., warrantor, has appealed.

In November, 1952, the Interstate Auto Distributors of Chicago, Illinois, sold this Buick automobile under a conditional sales contract to a man calling himself Billy Farrell. This conditional sales contract and the promissory notes evidencing the balance due on the purchase price were assigned by the automobile dealer to plaintiff herein, a finance company. Without the knowledge and consent of the plaintiff the car was brought to Louisiana, and in December, 1952, was sold by one representing himself to be Lee Norton to John H. Smit, Jr., doing business as Smit Motor Sales, under a Louisiana certificate' of title. Smit subsequently sold this automobile to Roman Bo-gard, in whose possession it was at the time it was seized by the plaintiff.

In this case plaintiff has proved that the Illinois conditional sales contract here involved is in proper form and valid and enforceable under the laws of that state, that title to an automobile conditionally sold remains in the vendor or its assignee until the contract is fully performed, and that under the laws of Illinois the conditional vendor or its assignee has a superior right in the chattel over an innocent purchaser for value and without notice.

In the recent case of Fisher v. Bullington, 223 La. 368, 65 So.2d 880, 883, this court quoted with approval from Universal C. I. T. Credit Corp. v. Victor Motor Co., La.App., 33 So.2d 703, thus:

“ ‘The jurisprudence of this State applicable to conditional sales contracts is now well settled and can be stated thusly: In spite of the fact that conditional sales are invalid when contracted in Louisiana, the Louisiana courts, through comity, have recognized sales executed in other states, even as against a bona fide purchaser or pledgee of the vendee, where the object has been removed to Louisiana without the knowledge or consent of the vendor. Overland Texarkana Co. v. Bickley, 1922, 152 La. 622, 94 So. 138; Finance Security Co. v. Conway, 1933, 176 La. 456, 146 So. 22; Hinton Co. v. Rouse, 1926, 4 La.App. 471; Security Sales Co. of Louisiana v. Blackwell, 1928, 9 La.App. 651, 120 So. 250; State ex rel. Grosjean v. Shurley, La.App., 1936, 165 So. 533.' ” See also General Motors Acceptance Corporation v. Nuss, 195 La. 209, 196 So. 323.

It will thus be seen that Smit never acquired, title to the automobile in question, and, having no title, he could convey none to Bogard, in whose custody the Buick was at the time it was seized.

Warrantor contends in this court that the trial judge improperly admitted in evidence the conditional sales contract because it had not been shown that it was signed by Billy Farrell, the conditional vendee named therein. Warrantor argues that the document is not a self-proving one under the laws of this state (Article 2234 of the Louisiana Civil Code and R.S. 13:3720), and accordingly the genuineness of the signature of Billy Farrell had to be proved by witnesses who saw him sign the act or who knew the signature to be his because they had frequently seen him write and sign his name. See Art. 2245, La.Civil Code; Art. 325, La.Code of Practice. In support of this contention warrantor cites our decision in Bass v. Prewett, 225 La. 883, 74 So.2d 150, 151, in which it was said: /‘The method of proving the authenticity or genuineness of the signatures to these chattel mortgages is governed by. the law of this state, for this is a matter of evidence, and it is well settled that questions of evidence or procedure are governed by the law of the forum.”

There is no merit in the contention that the contract in the instant case, was improperly admitted in evidence. Bernard Simmons of Interstate Auto Distributors, the conditional vendor, who signed the conditional sales contract as a witness, testified that a person representing himself to be Billy Farrell signed the contract in his presence, that he saw this person sign the contract, and that the automobile was delivered to the same person who signed the contract as conditional vendee. The evidence establishes that Billy Farrell and one Lee Norton Schiavone are the same person, and we can reasonably assume that Lee Norton is another name under which this particular person was operating at the time he sold the automobile to Smit in Louisiana.

Warrantor next contends that he has proven that under the laws of Illinois the assignee of a fictitious conditional sales contract cannot enforce such an agreement, against a third party purchaser in good faith. Counsel for the warrantor has not proven to our satisfaction that this is the law of Illinois, and the attorney who was called to testify as to this principle of law relied on the holding in the case of Forgan v. Gordon Motors Finance Co., 350 Ill. 445, 183 N.E. 462, which is not authority for the proposition of law advanced. In that case the Illinois court was discussing two conditional sales contracts, and the one which the court declared to be fictitious was made by the conditional vendee without consideration or delivery. In the instant case we have no fictitious contract, and the expert on Illinois law in the lower court admitted that the Forgan case was different from the instant one.

In- this court for the first time warrantor contends that under the law of Illinois, when a conditional vendor brings suit for the balance due under the terms of a' conditional sales contract, title to the property conditionally sold immediately vests in the conditional buyer by operation of law and the sale becomes absolute. Under this principle of Illinois law, warrantor argues, title to the Buick vested in Bogard at the moment Associates Discount brought this suit. This defense was not raised in the lower court, and appeared as an issue in this case for the first time on appeal here. This court cannot taire judicial notice of foreign law. Since warrantor did not allege or attempt to prove in the lower court that this is the law of Illinois, this contention cannot be considered by us on appeal. It is well settled that the law of a sister state as well as judicial interpretation of that law must be proven during trial just as any other fact in the case. Taylor v. Terzia, 171 La. 1040, 132 So. 781; see Sheard v. Green, 219 La. 199, 52 So.2d 714. Moreover, as we have already pointed out, the instant suit has for its primary purpose the recognition and enforcement of an Illinois contract, which as we have shown above is valid, enforceable, and in proper form under the laws of that state.

Also on appeal for the first time, warrantor contends that the amount of the judgment rendered against him on Bogard’s call in warranty is incorrect, and that for this reason Bogard’s call,in warranty should be non-suited or the case remanded for further evidence. Warrantor has not advanced any valid reason which would justify us in disturbing the amount of this award. Bo-gard in his call in warranty specifically stated that the purchase price of the car was $2,450, and claimed that he was entitled to recover this sum from Smit in the event plaintiff should prevail on the principal demand. Smit did not deny in his answer that this amount was the correct purchase price, and made no contention in'the lower court that Bogará' should be awarded a lesser sum. Moreover, the bill of sale itself stipulates that the selling price of the automobile was $2,450, and evidently the trial judge accepted this as being true and rendered his judgment against the warrantor accordingly.

The judgment appealed from is affirmed. John H. Smit, Jr., is to pay all costs of this appeal.


author: PONDER, Justice. HAMITER, Justice. PONDER, Justice

text:
    229 La. 399
    Athen S. TANNER v. Vera Howe TANNER.
    No. 42020.
    Supreme Court of Louisiana.
    June 30, 1955.
    On Rehearing Jan. 16, 1956.
    Further Rehearing Denied Feb. 20, 1956.
    Blanchard & Blanchard, C. A. Blanchard, F. A. Blanchard, Donaldsonville, for plaintiff-appellant.
    Miriam Attaya, Gonzales, for defendant-appellee.
   PONDER, Justice.

The plaintiff has appealed from a judgment awarding the defendant $200 attorney’s fees for services rendered in a divorce' suit.

The plaintiff brought suit against the defendant for divorce under the provisions of LSA-R.S. 9:301 on the ground that he and his wife had lived separate and apart for more than two years. The defendant reconvened and asked -for judgment on the same ground and for custody of the children, alimony, and attorney’s fees. On hearing of the case, the lower court gave judgment granting the plaintiff a divorce and dissolving the community of acquets and gains existing between him and the defendant. The • custody of the children was awarded to the defendant with the right of visitation given to the plaintiff, the defendant’s right to claim alimony for herself and support for the children 'was reserved. The plaintiff was ordered to pay the defendant’s attorney’s fees in the amount of $200. The plaintiff has appealed only from that part of the judgment which awarded the defendant attorney’s fees.

The defendant did not answer the appeal and, therefore, the only question presented is the correctness of that part of the judgment awarding the defendant attorney’s fees.

The plaintiff contends that the community was dissolved, at the time of the filing of the suit by him and that, therefore, the judgment awarding the attorney’s fees was erroneous because the wife was not successful in obtaining a judgment on her re-conventional demand. In support of his contention the plaintiff cites: Alpha v. Aucoin, La.App., 167 So. 835; Benedict v. Holmes, 104 La. 528, 29 So. 256; Spiller v. Spiller, 170 La. 813, 129 So. 212; Coco, Broussard & Dupuy v. Byrd, 2 La.App. 613 and Collins v. Collins, 194 La. 446, 193 So. 702. On the other hand, the .defendant relies on the holdings in the cases of Martin v. Martin, 191 La. 761, 186 So. 94 and Jones v. Jones, 200 La. 911, 9 So.2d 227.

Article 2432 of the LSA-Civil Code provides: “The judgment which pronounces the separation of property, is retroactive as far back as the day on. which the petition for the same was filed.” This article of the Civil Code has been consistently .applied in suits for separation from bed and board and divorce, and decisions are numerous to that effect. Some of the more recent decisions holding that this article of the Civil Code is applicable are: Benedict v. Holmes, 104 La. 528, 29 So. 256; Gastauer v. Gastauer, 143 La. 749, 79 So. 326; Alpha v. Aucoin, La.App., 167 So. 835.

Under the provisions of Article 2432 of the LSA-Civil Code, the dissolution of the community reverts back to the time of the filing of the suit by the plaintiff and, therefore, the services of the defendant’s attorney were rendered after the dissolution of the community. Such being the case, the attorney’s fees is a debt of the wife and not that of the community. August v. Blache, 200 La. 1029, 9 So.2d 402; Gastauer v. Gastauer, supra; Alpha v. Aucoin, supra; and Benedict v. Holmes, supra.

The two cases cited by the defendant, Martin v. Martin, supra, and Jones v. Jones, supra, are not applicable. The attorney’s fees' were allowed in those cases to the wife who had secured an award for a pension or alimony under the provisions of Article 160 of the LSA-Civil Code. We do not have such a situation in this casé as there is no judgment awarding or denying alimony.- The wife’s rights were merely reserved in the judgment to claim alimony.

For the reasons assigned, the judgment of the lower court is amended so as to disallow the award to the defendant for attorney’s fees in the sum of $200 and as thus amended the judgment is affirmed.

MORSE, J., concurs.

HAMITER and SIMON, JJ., dissent.

FOURNET, C. J., absent.

On Rehearing

HAMITER, Justice.

As is stated in the majority opinion on the original hearing of this cause appellant (the plaintiff husband) is complaining only of the district court’s award of attorney’s fees t,o appellee (the defendant wife). Mainly, he insists , that inasmuch as he obtained the divorce, and the wife was unsuccessful on her reconventional demand, the community was retroactively dissolved as of the time of the institution of his suit; and, consequently, the awarding of the attorney’s fees against him as head and master of the community, for legal services rendered the wife subsequent to the filing of his petition, was improper.

Accordingly, the primary question presented by this appeal is: When an action for a separation or divorce instituted by the husband terminates in a decree in his favor does the obligation to pay attorney’s fees for services rendered to the wife in defense of the suit and in connection with her unsuccessful reconventional demand constitute a debt of the community (assuming its previous existence) for which a judgment against the husband, as head and master of the community, may be rendered ?

A generally recognized and well-established principle in this state is that ordinarily a litigant is not entitled to recover attorney’s fees, even when successful in the suit, except where the- obligation therefor is imposed by contract or statute. See Winkler v. Ascension Bank & Trust Co., 182 La. 69, 161 So. 23; Efner v. Ketteringham, 217 La. 719, 47 So.2d 331; Brantley v. Tugwell, 223 La. 763, 66 So.2d 800, and Griffin v. Bank of Abbeville & Trust Co., 228 La. 857, 84 So.2d 437. The mstant case involves no contract on the part of the husband to pay attorney’s fees, and we know of no legislative enactment providing for an award of them in a suit for separation from bed and board or divorce.

Of course, 'attorney’s fees have been allowed in many actions of that nature (some of these will be hereafter discussed). But a review of the cases discloses that the decreed liability of the community (or the husband as its head and master) for the attorney’s fees incurred by the wife in a separation or divorce suit is a creature of the jurisprudence.

When the matter was first presented to this court in Tucker v. Carlin, 14 La.Ann. 734, liability of the community for such fees was not imposed. In that case the husband and wife had brought divorce actions against each other, and both suits were dismissed. Thereafter, the wife’s attorney sued the husband, as head and master of the community, to recover for his services in representing the wife in the two proceedings. The court refused -to allow the fees, commenting that the obligation so incurred was a debt of the wife separately. It specifically ruled that the husband could not be held liable either on the basis that the wife had expressly contracted the indebtedness (she had no authority to bind the community) or on the theory of quasi contract.

Subsequently, however, the court in Benedict v. Holmes, 104 La. 528, 29 So. 256, 258, decided that where the wife had successfully prosecuted her suit for a separation from bed and board and for the liquidation of the community the necessary attorney’s fees incurred by her were a legal charge against the community. The court’s decision was based primarily on the following reasons: “* * * The wife has a recognized legal right to institute against her husband a suit for divorce or separation of property upon grounds that are specified in the law; but, if she cannot charge her attorney’s fees and cost against the assets of the community in the event she obtains a decree of separation and dissolution, the right is practically a barren one, if she possesses no separate property. If the husband’s course of conduct be such as to justify the dissolution of the marriage and the dissolution of the community on the petition of the wife, it would seem that in such case the cost and attorney’s fees incident thereto ought to go against the community assets in the course of its liquidation, or against the husband personally if he takes the same to himself. * * * ”

Thus, a conflict existed between the principles enunciated in the Tucker case- and those of the Benedict matter. And this conflict was recognized and resolved in Gosserand v. Monteleone, 159 La. 316, 105 So. 356, 358, 42 A.L.R. 310, the court there electing to follow the theory of the Bene-diet case, namely, that the wife’s right to employ counsel in her suit for a separation or divorce was a barren one, and she was practically without remedy, if her attorney’s fees could not be charged against the community. The court said: “The law lays down certain specific causes for which a separation from bed and board or a divorce may be granted by the court, and the law also recognizes the right of a wife to institute and prosecute a suit for that purpose against her husband.

“This right carries with it the right to employ counsel to institute and prosecute such a suit. No good and valid reason is suggested or can be suggested why the attorney thus employed may not recover for his services against the husband as head and master of the community.

“If the attorneys in such a case are not entitled to recover against the husband or the community, then the law giving the right to the wife to sue for a separation or divorce and to employ counsel for that purpose * * * is a dead letter, or is a barren one, as was said in the Benedict case. The wife would find herself vested with a legal right but without practically any remedy or the authority to vindicate such right.

* ‡ * ❖ * *

“After all is said, therefore, we are of the opinion that the fact that a reconciliation took place between the parties, thereby putting an end to the suit for separation and leaving the community intact, did not have the effect of relieving the defendant from liability for the fees of the attorneys employed by his wife.”

Later, the same case came again to this court on the question of the quantum of the fee due. 164 La. 397, 113 So. 889, 891. We held that the amount agreed upon by the wife could not be conclusive on the community since she was without authority to contract obligations against it, but that the fee should be allowed and fixed on a quantum meruit basis. In the opinion the following was said: “The debt in this particular case was not contracted by the husband during the marriage, in the .sense that it is an obligation arising from covenant; yet it is made an obligation of the husband; or of the community, through operation of law. * * * ”

Since.that time this court has consistently ruled that attorney’s fees incurred by the wife in prosecuting a suit for separation from bed and board or divorce is the obligation of the community, whether she is successful in the proceeding or not. If successful she is entitled to a judgment for her attorney’s fees in the same suit which pronounces the separation or divorce. Lester v. Lester, 160 La. 708, 107 So. 499; Balfe v. Balfe, 165 La. 283, 115 So. 489; Shipp v. Shipp, 183 La. 1025, 165 So. 189; New v. New, 186 La. 1017, 173 So. 748; Martin v. Martin, 191 La. 761, 186 So. 94, and Goodwin v. Goodwin, 207 La. 690, 21 So.2d 875. If she is unsuccessful her attorney can recover the fees from the husband, as head and master of the community, the wife being legally incapable of obtaining a judgment against him during the continued existence of the community. Gosserand v. Monteleone, supra; Daly & Hamlin v. Trascher, 163 La. 660, 112 So. 521; Spiller v. Spiller, 170 La. 813, 129 So. 212; Starns v. Starns, 176 La. 610, 146 So. 165; Tullis v. Calhoun, 184 La. 207, 165 So. 714; Collins v. Collins, 194 La. 446, 193 So. 702, and Parker, Seale & Kelton v. Messina, 214 La. 203, 36 So.2d 724.

The above cited cases, particularly the early ones in which the doctrine was developed (except Tucker v. Carlin), clearly disclose a view on the part of the court that in the public interest the husband, as head and master of the community, should be condemned to pay for the services rendered to the wife in prosecuting a suit for separation from bed and board or divorce, as well as for a settlement of the community, even though there is no specific provision in the statutory law providing for such liability. And while the language used in the opinions has occasionally been rather loose in referring to the claim for her attorney’s fees as a “community obligation or debt”, generally speaking it carries the definite implication that, in the creation of the obligation, the intention was that such claim be acquitted only out of the assets of the community. In so condemning the husband as head and master of the community, in other words, the court has not considered the obligation as a debt for which the husband’s separate property would be liable in the event that the community had no assets. In effect, the holdings have been that the wife, or her attorney, may look to the assets of the community for payment of the attorney’s fees, and that if the community did not acquire and own any property there is no liability on the' part of the husband separately.

Our stated interpretation of the cited cases is fortified by the decision in Glorioso v. Glorioso, 223 La. 357, 65 So.2d 794, 795, in which the wife, as plaintiff in recon-vention, was successful in her demand for a separation from bed and board. In the. action she had also sought attorney’s fees, and under the jurisprudence discussed above she would have been entitled to an award therefor except for the fact that the community had no assets. In denying the claim the court said: “ * * * It is, of course, settled that, in a suit in which a wife obtains a judgment of divorce or separation from bed and board, her attorney’s fee is a community debt. * * . * Accordingly, since the community (if any) was dissolved by the judgment of separation from bed and board, Article 136, LSA— Civil .Code, this attorney’s fee is payable out of it. However, there was no personal liability on the part of the husband for this debt other than as head and master of the community, which is now dissolved. It is evident that the judge in the instant case was of the opinion that there was no community property and, hence, no liability for the attorney’s fee.” (Italics ours.)

All of the above cases involved suits in which the wife appeared either as plaintiff or plaintiff in reconvention. But we can conceive of no good reason wh.v the principles enunciated therein respecting attorney’s fees of the wife should not be equally applicable when it becomes necessary for her to employ counsel to defend a suit for separation from bed and board (or divorce) and to protect her rights therein. According to those principles it makes no difference whether the wife, in bringing the suit and obligating the community assets for her attorney’s fees, is successful or unsuccessful in prosecuting her demand. Similarly, it should be immaterial (and we hold that it is) whether she is successful or unsuccessful in defending the husband’s action, particularly where a dissolution and settlement of the community is involved. She, or her attorney, should be able and is entitled to look to the assets of the community, if any there be, to satisfy a claim for the necessary legal services rendered to her in making the defense.

In reaching this conclusion we are not unmindful of the pronouncement made in Gastauer v. Gastauer, 143 La. 749, 79 So. 326, 328, that, “The judgment in the suit in (for) separation from bed. and board retroacted to the date of the filing of that suit (C.C. 2432) ; hence the costs of that suit * * * are not chargeable to the community * * The court there was purportedly saying, in effect, that the judgment of separation from bed and board retroacted to the date of the filing of the suit -in which it was obtained; therefore, the community was dissolved as of such date and, of course, could not be held liable for charges incurred after the dissolution.

Also, we are- aware that in subsequent cases in our jurisprudence such pronouncement of the Gastauer case, clearly erroneous as demonstrated hereinafter, was given recognition. Talbert v. Talbert, 199 La. 882, 7 So.2d 173; Uchello v. Uchello, 220 La. 1061, 58 So.2d 385; Dauterive v. Sternfels, La.App., 164 So. 349; Alpha v. Aucoin, La.App., 167 So. 835; Dewenter v. Mott, La.App., 27 So.2d 444. However, although recognized it was not applied and followed in at least two of these, the decisions reached having been contrary thereto. In fact, the results were in keeping with our conclusion herein that the community is dissolved at the time of the rendition of 'the judgment of separation from bed and board, not as of the date of the filing of suit therefor. Talbert v. Talbert and Uchello v. Uchello, both supra.

Again, the erroneous pronouncement 'under consideration is not in harmony with observations made and results reached in some other recent cases. Glorioso v. Glorioso, supra; Peters v. Norris, 191 La. 436, 185 So. 461; Eiermann v. Modenbach, 198 La. 1062, 5 So.2d 335; Oliphint v. Oliphint, 219 La. 781, 54 So.2d 18, 20. Particularly noticeable is the following from the Oli-phint case: “On the day appointed for the hearing, the defendant appeared and: filed his return to the rule. * * * And, attaching to his answer a purported full statement of the community assets and liabilities as of June 8th 1944 (the time’of its dissolution by judgment of separation from bed and board) * * * he prayed that his return be deemed good and sufficient * * (Italics ours.)

Reverting to Gastauer v. Gastauer, supra, the court therein, as appears from the, extract quoted above, cited LSA-Civil Code Article 2432 in- support of its statement that the “judgment in the suit in (for) separation from bed and board retroacted to-the date of the filing of that suit.” The article, contained in a chapter of the Civil Code, Book III, Title VI, Chapter 4, entitled “Of the Separation of Property Prayed for by the Wife during Marriage”, reads as follows: “The judgment which- pronounces the separation of property, is retroactive as far back as the day on which the petition for the same was filed.” (Italics ours.) Undoubtedly, the court inadvertently erred in citing this article in connection with and as having relevancy to a judgment of separation from bed and board. This is made manifest by the history of the litigation leading up to that decision and by a comparison of such article with other codal provisions.

More than a year previous to the commencement of her action for a separation from bed and board, Mrs. Gastauer ('in February, 1910) sued her husband -for a separation of property pursuant to the au-. thorization contained in LSA-Civil Code Article 2425 et seq. The district court dismissed the suit and she took an appeal. While that appeal was pending she instituted (on April 7, 1911) the suit for separation from bed and board. In it also she was unsuccessful and she 'prosecuted an appeal. Here a judgment 'of separation from bed and board was rendered.in her favor on April 28, 1913. See 132 La. 941, 61 So. 879.

Meanwhile, on May 20, 1912, this court had reversed the judgment in the 'first suit and decreed the wife to be separate in property. 131 La. 1, 58 So. 1012. Our decree, according to LSA-rCivil Code Article 2432, retroactively effected a dissolution o-f the community as of the date of filing of that separation of property suit (a date, as above shown; long before the action for separation from - bed and board was' commenced). <

Following the rendition of that decree, and while the appeal in the separation from bed and board proceeding was pending here, the wife, in the district court and in the suit brought initially for a- separation of property, sought an accounting of her paraphernal funds and a partition pf .the community. In the proceeding, after a hearing oh the merits, the court rendered judgment (in February, 1915) recognizing some of her claims and rejecting others and also determining which of the. husband’s claims were chargeable against the community. ' It was on an appeal from such accounting judgment in the separation of property suit' that" this court (on May 27, 1918) made reference to the retroactivity of the judgment in the suit for separation from bed and board, as of the date of the suit’s filing, and ruled that, therefore, the costs of that suit were not chargeable to the community. But in view of the history of the Gastauer litigation as outlined above, and particularly since the wife’s decree of separation of property retroacted under the provisions of LSA-Civil Code Article 2432 and dissolved the community long before her action for separation from bed and board was even instituted, it is obvious that the court committed inadvertent error in such pronouncement and that it meant to say and hold: “The judgment in the suit for separation of property retroacted to the date of the filing of that suit (Civil Code Article 2432); hence, the' costs of the suit for separation from bed and board, all of which were incurred subsequent to the community’s dissolution by the separation of property action, are not chargeable to the community.” (Italics ours.)

Furthermore, a consideration of LSA-Civil Code Article 2432 along with other codal provisions reveals that it was never intended to have application to a judgment of separation from bed and board. Governing the suit for such a judgment, as well as the effects flowing therefrom, are specific provisions of our LSA-Civil Code contained in Book I, Title V, Chapters 1 to 5, inclusive, some of which are particularly significant in this discussion. Thus, Article 149 authorizes the wife to require an inventory of the property in the possession of the husband and to enjoin his disposing of it; and Article 150 provides that from the day suit is brought the husband cannot incur any debt on account of the community nor dispose of the immovables belonging to the community, and that any alienation made by him after that time in fraud of the wife’s rights is null (note that an alienation is not null unless in fraud of her rights). Obviously, these provisions would be unnecessary if the community were dissolved as of the time of filing the suit. Their purpose, undoubtedly, is to provide protection for the wife’s interest in the community that continues during pendency of the suit for separation (or a divorce— LSA-Civil Code Article 151) and to modify the rules which would otherwise prevail because of such community’s continued existence. Hence, the clear inference to be drawn therefrom is that the community remains intact, subject to the mentioned codal limitations, until terminated by judgment. As stated in Article 155, “Separation from bed and board carries with it separation of goods and effects.” Divorce produces the same results. Article 159.

On the other hand Article 2432 is found in a book and chapter of the LSA-Civil Code widely separated from the provisions just discussed. It and its related articles provide rules for an entirely different action, namely, the action for separation of property that is to be instituted only and exclusively by the wife; and the purpose of them is to afford protection to her “whenever her dowry is in danger, owing to the mismanagement of her husband, or otherwise, or when the disorder of his affairs induces her to believe that his estate may not be sufficient to meet her rights and claims”, LSA-Civil Code Article 2425, and to provide “for the future by putting an end to the community and thus securing to the wife her individual acquisitions or gains thereafter in whatever manner obtained.” Webb v. Bell, 24 La.Ann. 75. Incidentally, such relief may be had by her without a termination of the marriage relationship.

If Article 2432 were applicable to a suit for separation from bed and board then its accompanying rules should likewise be appropriate. Yet the articles themselves clearly demonstrate that they cannot, and were never intended to, be so applied. “The separation of property, although decreed by a court of justice, is null, if it has not been executed by the payment of the rights and claims of the wife, made to appear by an authentic act, as far as the estate of the husband can meet them, * * Article 2428. “The separation of property, obtained by the wife, must be published three times in the public newspapers, at farthest within three months after the judgment which ordered the same.” Article 2429. “ * * * The creditors of the husband may object to the separation of property decreed and even executed with a view to defraud them. They may even become parties to the suit for a separation of property, and be heard against it.” Article 2434. Certainly, these rules have never been observed in the obtaining of judgments of separation from bed and board.

Too, Article 2432, pertaining as it states to the separation of property action, could not possibly be applicable: to a husband’s suit for separation from bed and board, since only the wife has the right to resort to that action; or to any divorce suit, brought by either the husband or wife, for the chapter in which it is found (unlike the chapters dealing with separation from bed and board) contains nothing malting it relevant to divorce proceedings.

Moreover, to consider the primary question presented here from a practical standpoint, if it were correct to say that a judgment for a separation from bed and board is retroactive to the date of the filing of the suit therefor then a wife could never recover her entire attorney’s fees even though successful in an action brought by her. In that situation she would be entitled to an award only for the legal services rendered in the preparation and filing of her petition —not for those necessary thereafter in a trial of the cause.

Appellant further contends herein that no award should be “made to the wife for attorney’s fees against the husband, when she is defendant, and when the attorney is totally unnecessary and accomplishes nothing that is beneficial to the community or to the wife.” This contention addresses itself to the matter of quantum, rather than liability. Unquestionably, in the'husband’s suit for a separation or divorce the wife is entitled to consult an attorney as to her rights and to have professional representation in the proceedings for the continued protection of her interests. In the instant cause there is. ample proof, that the legal services rendered appellee were well worth the awarded attorney’s fees of $200.

In view of this conclusion and of our holding above that appellant as head and master of the community is liable for the attorney’s fees of appellee, and since the .record shows that-the community existing between these litigants had some assets from which the charge might be acquitted, the decree of the district court will .not be disturbed.

For the reasons assigned the judgment of the district court insofar as appealed from is affirmed.

PONDER, Justice

(concurring).

' At the time I wrote the original opinion in this case I held the same views expressed in the majority opinion on rehearing but at that time I was not disposed to depart from the prior jurisprudence. However since the members of this Court have arrived at the conclusion reached I concur.


text:
    229 La. 420
    STATE of Louisiana v. Claude Ray BROSSETTE.
    No. 42506.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    Rehearing Denied Feb. 20, 1956.

      Gahagan & Gahagan, Natchitoches, for appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., H. L. Hughes, Dist. Atty., Natchitoches, for appellee.
   HAWTHORNE, Justice.

Convicted of aggravated battery and sentenced to serve 18 months’ imprisonment in the Louisiana state penitentiary, Claude R. Brossette has appealed.

For reversal appellant relies on two bills of exception. The first bill arose under the following circumstances:

After both the State and the defense had announced themselves ready for trial, the sheriff opened the jury box in which the names of the prospective jurors had been locked in a sealed envelope. He tore open this envelope, emptied into the jury box the slips of paper containing the names of the prospective jurors, shook the container, and drew from it a sufficient number of prospective jurors’-names to compose a jury of five. In making this drawing the sheriff took from the box seven slips.- of - paper each containing the name of a prospective juror, two of whom had been excused for cause by the court and were not present. At this point counsel for appellant moved the court to dismiss the five jurors so drawn, for the reason that the jury box used by the sheriff was so small that it was impossible for the pieces of paper containing the prospective jurors’ names to become well mixed in the box when it was shaken, as evidenced by the fact that the seven names pulled out were the last seven names on the list of 30 persons drawn by the jury commission to serve as petit jurors for that term of court. Counsel’s motion was overruled by the court, and this bill was reserved.

As contended by counsel, the names of the seven jurors drawn were the last seven names on the list of prospective jurors selected by the jury commission, but, as reflected by the minutes of the court, they were not drawn in the same order in which they appeared on the list. The question presented is whether this irregularity — if it is one — would justify us in granting appellant a new trial.

Counsel for appellant does not urge that any fraud has been practiced or any wrong committed in the drawing of these prospective jurors, nor has counsel pointed out to us how any statutory right of the accused has been violated or how he has been prejudiced by this drawing. Under these circumstances we fail to see any reversible error in this jury box incident.

In this connection we might observe that, of the five jurors who answered present, two were peremptorily challenged by the State and three accepted to try the case by both the State and the defense. Moreover, a jury of five was completed without the appellant’s having exhausted his peremptory challenges.

Obviously the matter complained of in this bill does not entitle appellant to a new trial. See Art. 557, La.Code Cr.Proc.

Bill No. 2 was reserved in connection with a remark .of the district attorney during his final argument. Appellant was charged. in this case with aggravated battery upon' Julius Durwood Reed. In argument to the jury the district attorney said that, while Reed was driving to a hospital in Alexandria to have his wound sutured, he wrecked his car due to loss of blood from the knife wound inflicted by the accused, and died a few days later from injuries received in the accident. Counsel for appellant objected to this statement and asked the court to declare a mistrial. Counsel’s objection was to the effect that the district attorney’s argument was going beyond the evidence and was highly prejudicial to the accused because of its inflammatory nature. Although the trial judge informs us in his per curiam that it had been brought out during the trial without obj ection that Reed, was fatally injured in an automobile wreck shortly after he had been cut by the accused, he sustained counsel’s objection and instructed the jury to disregard the district attorney’s remark and not to consider any argument not supported by the evidence.

It is the well settled law of this state that counsel in a criminal case must confine themselves to matters on which evidence has been received and refrain from any appeal to prejudice. Art. 381, La.Code Cr.Proc. It is equally well settled in our criminal jurisprudence that improper .remarks by the district attorney are cured by the judge’s charge to the jury to disregard them — except in extreme , cases. State v. Brown, 166 La. 43, 116 So. 588; State v. Bryant, 209 La. 918, 25 So.2d 814; State v. Dowdy, 217 La. 773, 47 So.2d 496; certiorari denied 340 U.S. 856, 71 S.Ct. 75, 95 L.Ed. 627; see State v. Jackson, 227 La. 642, 654, 80 So.2d 105, 109.

As shown by the trial judge’s per curiam on this bill, the evidence that Reed was fatally injured in the automobile wreck had been adduced without objection, but the district attorney was apparently going outside the record when he stated that the' wreck was caused by loss of blopd. Nevertheless we do not consider this remark to be one of those extreme ones which are so inflammatory or prejudicial that they cannot be cured by the instruction of the judge to disregard.

In State v. Jackson, supra, this court said:

“ * * * Under the jurisprudence of this court, before a verdict approved by the judge is set aside ,ori the ground of improper argument of such a nature as this, this court must be thoroughly convinced that the jury was influenced by the remarks and that they contributed to the verdict. State v. Ailes, 133 La. 563, 63 So. 172; State v. Shoemake, 143 La. 65, 78 So. 240; State v. Davis, 178 La. 203, 151 So. 78. * * * ”

In the instant case we do not believe that the jury was influenced by the prosecuting attorney’s remarks in arriving at their verdict; especially in view, of the fact that the judge sustained counsel’s objection and told the jury to disregard the remarks.

The' conviction and sentence are affirmed.

      . Appeals to race prejudice or comments on failure of defendant to take the stand 'are such extreme eases.


author: MOISE, Justice. HAWTHORNE, Justice

text:
    229 La. 426
    Robert R. SAUNDERS v. James L. WALKER, d/b/a Jimmie Walker Home Appliances et al.
    No. 41914.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    Rehearing Denied Feb. 20, 1956.

      Lamar Polk, Alexandria, Theus, Gris-ham, Davis & Leigh, Monroe, for defendants-appellants.
    Peterman & Burden, Alexandria, for plaintiff-appellee.
   MOISE, Justice.

This is a suit in which Robert R. Saunders sued James L. Walker, d/b/a Jimmie Walker Home Appliances, and his insurer, the Manufacturers Casualty Insurance Company, for damages in the sum of $22,-500, alleged to have been sustained by him as a result of the installation of a defective heating and air-conditioning system in his home.

A judgment of non-suit was entered, and on applications of both defendants for rehearing the case was reopened and evidence adduced within the permissive latitudes of the orders of court. On the conclusion of the trial, the court rendered judgment against the defendants, in the sum of $10,000, and against James L. Walker, personally, in the sum of $1,436.79, from which defendants have appealed.

The judgment now on appeal is one in which the court applied the doctrine of res ipsa loquitur — “A matter which speaks for itself” — , which, in .proper cases, constitutes a crystallization of a maxim of common sense — a rule of evidence. Gerald v. Standard Oil Co. of Louisiana, 204 La. 690, 16 So.2d 233. See, Roy v. Louisiana State Department of Agriculture and Immigration, 216 La. 699, 44 So.2d 822.

The evidential facts are that the defendant, James L. Walker, doing business as Jimmie Walker Home Appliances, is engaged in the business of selling, installing and servicing heating and air conditioning systems and has had considerable experience therein over a period of several years. During the early stages in the construction of plaintiff’s residence, Walker was furnished with a set of plans (duplicates of plaintiff’s Exhibits 1 and 2) prepared by DeLaureal and Moses, an engineering firm specializing in air conditioning, showing the design of an air conditioning system to be installed. The system called for by. these plans is composed of water chilling apparatus to be used for cooling and a boiler to be used for heating. Walker did not bid on the project, and for reasons not apparent in the record plaintiff abandoned the idea of installing a system as originally designed. Walker thereafter negotiated with plaintiff for the installation of a conventional system, resulting finally in á contract for the Servel System herein involved. The contract was not formal. It was entered into following the submission to Walker of a set of plans prepared by DeLaureal and Moses, dated August 8, 1950. The original plans contain a design for a flexible rubber hose connection, while no such design appears on those last prepared.

Not long after beginning the occupancy of his new home, plaintiff began to enter complaints about the heating system. He used the heating system until April, and new complaints arose after the cooling cycle was put in operation some time in May.

Frequent consultations were held between the parties, the architects and engineers, concerning the complaints made, and the -defendant Walker made adjustments and corrective work. During this period, the copper tubing was cut and spliced with flexible rubber hose connection.

Plaintiff alleged that Walker’s employees or agents installed this 6}/£ inches long rubber hose or coupling in a careless and negligent manner; that water flowed through this hose to the unit at the rate of approximately sixty gallons per minute under great pressure; that the hose was not of the thickness and quality designed to withstand the pressure; that it was not attached with double clamps on each end as it should have been; that the pipe-was not threaded and the hose cemented therein for the required distance; and that the connection was defective and was negligently and carelessly made contrary to skilled, prudent and proper workmanship, all of which was at the time unknown to plaintiff.

Defendants answered, ' denying liability and claiming that all of the installation was done . in a workmanlike manner. Alternatively, they pleaded estoppel and averred that after the unit was placed in operation and plaintiff had made repeated complaints, especially with respect to vibration, Walker was1 directed by plaintiff’s engineer, the firm of DeLaureal and Moses, employed by plaintiff’s architect, the firm of Barron, Heinberg and Brocato, to splice the rigid 1J4 inch copper tubing in the intake and exhaust lines near the air conditioning unit in the attic and replace same with rubber hose, It is defendants’ contention that the correction was made at the instruction of plaintiff’s engineer.

In our opinion, the record clearly reflects that the rubber hose was connected as alleged by plaintiff. All experts who testified- stated that if the rubber hose had been of the proper length and properly attached, it would have worked satisfactorily. The record further reflects that during the period of endeavoring to adjust the air conditioning system to a proper working condition, Mr. DeLaureal suggested that some flexible connection might be made. However, nowhere do we find in the evidence that Mr. DeLaureal specifically gave instructions for the insertion of a rubber hose in the fashion in which it was attached. The architect did not inspect the rubber insert. The actual splicing of the copper tubing and insert of the rubber hose was done by Mr. Claude Powell, a refrigeration service mechanic three years in Walker’s employ, upon the instructions of Mr. George N. Patterson, Walker’s air conditioning department manager.

The slipping of the rubber hose was the cause of the water leakage which damaged plaintiff's property.

In the early morning of September 8, 1951, plaintiff was awakened to discover considerable quantities of water coming through the ceiling in several rooms of his home, drenching walls, floors, carpets, furniture, drapes and fixtures. Upon going into the attic, he observed that the source of the water was the open end of a water supply line made of .rigid copper tubing leading to the upstairs “Servel” unit and that the escaping water was being thrown with force against the rafters. It is an admitted fact in the case that the water poured from the line because, in some manner, one end of the flexible rubber hose inserted as a splice in the supply line had become disconnected from the tubing.

The defendants further contended that the .application of the doctrine of res ipsa loquitur did not apply, that the responsibility of the rubber hose connection was on the firm of DeLaureal and Moses, and that the'instrumentality (the defective splicing of the rubber hose) was entirely under the control of plaintiff. We.agree with the trial judge that the doctrine of res ipsa loquitur did apply in this cáse. If the thing (the rubber tubing) had been properly' installed and had not been defective, it would not have become undone. Therefore, the trial judge crystallized the rules of common sense in' applying the rule of evidence— res ipsa loquitur.

“Res ipsa loquitur is often found to be appropriate in cases involving explosions. It is not a rule of pleading or of substantive law; rather, it is a rule of evidence, the applicability of which is to be determined on the conclusion of the trial. * * * ” Gerald v. Standard Oil Co. of Louisiana, 204 La. 690, 16 So.2d 233, 236. See, also, Roy v. Louisiana State Department of Agriculture and Immigration, 216 La. 699, 44 So.2d 822.

Defendants vigorously argue that since the plaintiff pleaded specific acts of negligence (which is true), the trial judge was in error in applying the doctrine of res ipsa loquitur. We reiterate:

“Res ipsa loquitur, meaning ‘the thing speaks (for) itself’, is a rule of evidence, the applicability of which is to be determined on the conclusion of the trial. * * * ” Hake v. Air Reduction Sales Co., 210 La. 810, 28 So.2d 441, 444.

In his writing, “The Nature of the Judicial Process (1921)”, Mr. Justice Cardozo stated:

“Law suits are rather catastrophic experiences for the vast majority of men, and even when the catastrophe ensues the controversy relates more often not to the law but to the facts.”

In the case of Hamiter v. Duncan, La.App., 78 So.2d 80, 82, the Court said :

“As has been many times iterated by the courts of this state the doctrine of res ipsa loquitur is a rule of evi-dénce.' We have been somewhat concerned in connection with the matter before us as to whether there are any specific requirements of pleading which .are necessary as conditions precedent to the applicability and enforcement of the rule, but have come to the conclusion . that specific pleading of the doc-- trine is not required in cases where the facts themselves invoke its application. We find the pronouncement that the doctrine is a rule of evidence rather than a rule of pleading in 65 C.J.S., Negligence, § 220(3), pages 993, 994. * * * ” (Italics ours.)

At the conclusion of the testimony, the trial judge properly applied the doctrine of res ipsa loquitur.

In Jones v. Shell Petroleum Corporation, 185 La. 1067, 171 So. 447, and in Morales v. Employers’ Liability Assur. Corporation, Ltd., 202 La. 755, 12 So.2d 804, 808, we adopted a rule reading in effect as follows:

“It is fundamental that negligence is never presumed from the happening of an accident, but the happening of an aGfident with its attendant circumstances may justify the inference of negligence.”

The slipping off or coming aloose of the rubber hose justifies the inference of negligence on the part of the defendant Walker in the installation. It was incumbent upon Walker to exculpate himself from negligence. Davis v. Teche Lines, 200 La. 1, 2, 7 So.2d 365; Plunkett v. United Electric Service, 214 La. 145, 36 So.2d 704, 709, 3 A.L.R.2d 1437. We recognize that there are exceptions to the principle that a defendant must have exclusive control and possession of the offending article for the doctrine of res ipsa loquitur to apply, and in the case of Plunkett, supra, we stated:

“But the fact of possession and control by the defendant is not always an essential element. The doctrine has been held to be applicable in numerous actions where the offending articles were not possessed and controlled by 'the defendants on the occurrence of the accident, such as those for damages resulting from exploding bottles of carbonated beverages, from leakage of drums of acid, and from the blowout of a plug in a cylinder of acetylene gas. Important though in actions of this class is that the plaintiff prove freedom of fault on the part of all through whose hands the instrumentality passed after it left the defendant. Motor Sales & Service, Inc., v. Grasselli Chemical Co., 15 La.App. 353, 131 So. 623; Auzenne v. Gulf Public Service Co., La.App., 181 So. 54; Auzene v. Gulf Public Service Co., La.App., 188 So. 512; Lanza v. De Ridder Coca Cola Bottling Co., La.App., 3 So.2d 217; Meyers v. Alexandria Coca-Cola Bottling Co., Ltd., La.App., 8 So.2d 737; Ortego v. Nehi Bottling Works, 199 La. 599, 6 So.2d 677; Hake v. Air Reduction Sales Company, supra.”

In the instant case the plaintiff freed himself from negligence, and the trial judge held:

“Suffice it to say here that plaintiff’s claim of freedom from fault on his part and on the part of members of his household appears to be sustained by the evidence. Although the hose coupling was installed on a pipe in the attic which was used for storage, with the implication that persons from time to time went into the attic, nevertheless, this connection was installed out of normal reach, was not easily accessible, and, in fact, would not even be in the view of one walking about in the attic.”

We conclude, as did the trial judge, that:

“Inasmuch as defendants have not offered a legitimate explanation as to the.cause of the occurrence, and since the circumstances connected with it are such that unexplained they force the conclusion that it was caused by Walker’s want of care, plaintiff is entitled to recover for his damages unless recovery is barred by one or more of the defensive issues raised by the pleadings.
“These defenses, in the main, are that the installation of the hose connection was done on instructions of plaintiff’s engineering expert and at plaintiff’s risk, and, that inasmuch as plaintiff’s architect and engineer inspected and approved the job as completed by the alteration of attaching the hose, an estoppel results against plaintiff holding defendants liable.
“The evidence in the record fairly reflects the conclusion that the hose connection was inserted as the result of either a suggestion or an outright directive from DeLaureal, plaintiff’s engineer, to Walker’s job foreman. It is also clear that no particular instructions were given as to how the work should be done. The record does not establish that plaintiff, or his architect or engineer were ever advised that the hose had been installed, or that any of them had ever actually seen it prior to the accident.”

The trial judge further stated:

“No citation of authority or exhaustive discussion is necessary to conclude that defendants cannot escape liability for the installation of a faulty connection when the contractor was not following any particular specifications furnished by the owner or his agents in doing the work. Equally easy to reach is the conclusion that plaintiff can not be estopped in the absence of a showing that he or his agents had knowledge of the work and approved it. * * ” (Italics ours.)

.With respect to the quantum of damages, wé believe that after seeing and hearing the witnesses the trial judge arrived at a fair and just conclusion. We cannot declare that his findings are manifestly erroneous. McMahon v. Manufacturers Casualty Ins. Co., 227 La. 777, 80 So.2d 405; Smith v. Westchester Fire Ins. Co. of New York, 227 La. 812, 80 So.2d 418.

For the reasons assigned, the judgment of the trial court is affirmed at defendants’ cost.

HAWTHORNE, J., dissents with written reasons.

HAWTHORNE, Justice

(dissenting).

Since the majority opinion in this case discusses res ipsa loquitur at great length, I assume that it is under this doctrine that the plaintiff is being allowed to recover. I malee this assumption because I have noted that the trial judge says in his reasons for judgment in this case that he is doubtful whether the evidence introduced by plaintiff to prove the specific negligence charged against defendant has established the la.t-ter’s negligence to the point of legal certainty.

The doctrine of res ipsa loquitur is a rule of evidence which must be carefully applied or it will be abused. It is well settled in our jurisprudence that this rule of evidence can be used in a tort case only if the accident which damaged plaintiff was caused by an agency or instrumentality within the actual or constructive control of the defendant, if the accident is of a kind which ordinarily does not occur in "the absence of negligence, and if the evidence as to the true explanation of the accident is more readily accessible to the defendant than to the plaintiff. Northwestern Mut. Fire Ass’n v. Allain, 226 La. 788, 77 So.2d 395, and numerous cases and authorities there cited.

In the instant suit the instrumentality Which damaged plaintiff was clearly not within the exclusive control of the defendant. Moreover, it does not appear that the evidence as to the true explanation of the accident was so inaccessible to this plaintiff that he should be relieved of the burden of proving negligence in this tort action.

On the question of whether plaintiff has proven the specific negligence which he alleged, I express no view. I do not think, however, that he can rely on the doctrine of res ipsa loquitur to recover in this case.


text:
    229 La. 440
    Philip J. RAGUSA et ux. v. AMERICAN METAL WORKS, Inc.
    No. 42303.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Legier, McEnerny & Waguespack, by Harry McEnerny, Jr., New Orleans, for defendant-appellant.
    Maurice B. Gatlin, New Orleans, for plaintiff-appellee.
   HAWTHORNE, Justice.

Mr. and Mrs. Philip J. Ragusa brought this suit to enjoin American Metal Works, Inc., from operating its metal working establishment at 4401 Bienville Avenue, New Orleans, in such a manner as to emit loud, irritating, screechy noises, which plaintiffs alleged interfered with the reasonable occupancy by them and their tenants of their property located near the plant. After trial on the merits there was judgment in the district court permanently enjoining defendant from such operation between 7:00 p. m. and 7:00 a. m. Defendant appealed to this court.

It is well settled in the jurisprudence of this state that in injunction suits it is the value of the right in contest which determines whether this court has appellate jurisdiction. Ryan v. Louisiana Soc. for Prevention of Cruelty to Animals, 221 La. 559, 59 So.2d 883; City of New Orleans v. La Nasa, 227 La. 953, 81 So.2d 7; Johnson v. Nora, 228 La. 603, 83 So.2d 643.

In the instant case there is no affirmative proof that the right in controversy exceeds $2,000 exclusive of interest, and this fact was conceded by appellant in argument before this court and concurred in by appellees.

This case is accordingly ordered transferred to the Court of Appeal for the Parish of Orleans, provided that the record is filed in that court within 30 days from the date on which this decree becomes final; otherwise the appeal shall be dismissed.- The appellant is to pay the costs of this appeal to the Supreme Court; assessment of all other costs is to await final disposition of the case.


author: McCALEB, Justice.

text:
    229 La. 443
    STATE of Louisiana ex rel. Hugh Justus SMITH, Jr., v. W. H. THOMPSON and Thomas I. Sanders. In re Honorable Leroy Collins, Governor of the State of Florida, Applying for Writs of Certiorari to the Twenty-First Judicial District Court, Parish of Tangipahoa.
    No. 42731.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Huckabay, Seale, Kelton & Hayes, Baton Rouge, for relator.
    Reid & Reid, Hammond, Mentz & Ford, Hammond, for respondent.
   McCALEB, Justice.

Hugh Justus Smith, Jr., was party defendant to a divorce proceeding instituted in the Circuit Court of Bradford County, Florida, resulting in a decree of divorce in favor of his wife, who was also awarded the custody of their minor children, reserving to defendant the right of visitation and temporary custody during specified times and intervals. Subsequently, Smith brought one of the children from Florida to his home at Hammond, Louisiana and his former wife thereupon made affidavit charging him with removing the child from the State in violation of a court order, which is a felony under the law of Florida.

A bill of information was thereafter filed in Broward County, Florida against Smith and the Governor of Florida sent a requisition to the Governor of Louisiana for his extradition. The Governor of Louisiana issued a warrant of extradition in due course and Smith was arrested and taken in custody by the Sheriff of the Parish of Tangipahoa, following which he instituted these habeas corpus proceedings in which the Governor of Florida intervened.

After a hearing, the trial judge made the writ peremptory, holding that the bill of information was fatally defective. We granted a writ of certiorari to review this ruling on application of intervenor, the Governor of Florida.

Since the transmission of the record to this Court, Smith has moved for the dismissal of the writ on the ground that the matter has become moot because the Governor of Louisiana has revoked the warrant for his extradition to the State of Florida. Attached to the motion is a letter purportedly written by the Governor to counsel for respondent and also copy of a telegram sent by the Governor to the Sheriff of Tangipahoa Parish, advising him of the revocation of the warrant of' extradition.

On the day the case was submitted for our decision, no appearance was made by relator or his counsel contesting the motion to dismiss and the sworn allegations thereof are not controverted: In these circumstances, we uphold the motion as it is clear that the issue for decisión is ’ moot. Hirt v. City of New Orleans, 225 La. 589, 73 So.2d 471 and cases there cited.

The writ of certiorari is accordingly dis-. missed. ■ ■


author: HAMITER, Justice.

text:
    229 La. 446
    T. J. JOHNSON v. HOUSTON OIL COMPANY OF TEXAS.
    No. 42230.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    B. F.- Whitworth, Houston, Tex., Cook, Clark,- Egan, Yancey, & King, Shreveport, for defendant-appellant.
    William Greene, Archie R. Estess, Wil-so’nj Abramson & Mároun, Shreveport, Isaac Abramson, Shreveport, of counsel, for appellee.
   HAMITER, Justice.

• In the latter -part of lp53 the plaintiff, T. J. Johnson, drilled two wells to the Paluxy sand (approximately 2,400 feet deep) on a 140-acre tract of land situated in Caddo Parish and held by him under an oil and gas sublease from the defendant, Houston Oil ..Company of Texas. The first well, which resulted .in a dry hole, was abandoned. The second, although not completed as a producer, showed on tests the presence of oil. Known as Caddo Levee Board No. 2, it was1 capped or plugged with concrete. No further operations under the sublease were undertaken by plaintiff until June, 1954 when he resumed activity with respect to the latter well.

Á provision contained in the sublease, among others, was the following: “It is understood and agreed that in the event oil, gas or any other mineral is not being produced in. paying quantities from, and drilling or reworking operations are not being conducted on the property herein-above described on the 27th day of June, 1954, then and in such event the interest herein subleased shall revert to . Sublessor * * Invoking this provision the Houston Oil Company of Texas telegraphed, as well as wrote, to Johnson on July 1, 1954 that his sublease had terminated. (Italics ours.)

Thereupon, Johnson instituted this suit against the sublessor seeking a judgment declaring his sublease to be in full force and effect and enjoining interference with his right to develop the property. Specifically, he alleged that on June 27, 1954, in compliance with the provision of the sublease invoked by the defendant, he was actually reworking the above mentioned well No. 2.

Denying the essential allegations of the petition, and affirmatively averring a termination of the sublease under its terms and conditions, defendant answered and prayed that the demands of plaintiff be rejected at his costs.

The district court, following a trial of the merits, rendered judgment in plaintiff’s favor, it decreeing the sublease to be in full force and effect and permanently enjoining defendant from interfering with operations thereunder.

The defendant is appealing, and it contends here that the trial court erred in the following particulars:

“1. In finding from the facts that the rig placed by plaintiff at Caddo Levee Board No. 2 well was in operation on June 27, 1954.
“2. In holding that, .as a matter of fact, the plaintiff was conducting. reworking operations on June 27, 1954.
“3. In failing to require of plaintiff the bona fide intention to proceed with diligence toward the completion of reworking operations and disregarding evidence showing the lack of such intention.
“4. In holding that the sublease from defendant to plaintiff was maintained in force as a matter of law.”

In connection with the above quoted specification of errors, appellant’s counsel first argue “that a close examination of what took place on June 27, 1954 will resolve this case in its favor, because on that day there was no ‘conducting’ of ‘reworking operation’ as required by the sublease in order to prevent its termination. We believe the evidence will bear out our contention that what took place on June 27th was merely the moving in of a rod and tubing machine aboard a truck and the rigging up of this equipment. We believe that the remainder of the equipment did not reach the site of this well until June 28th. Therefore, no reworking operations were being conducted on June 27th and the sublease expired and reverted to Houston Oil Company.”

With respect to this argument the district judge, as is shown by his lengthy and well considered written reasons for judgment, found the pertinent facts to be as follows: The plaintiff, an experienced oil operator, was aware that his sublease would expire on June 27 unless in connection therewith he was on that day obtaining production, drilling a well, or engaged in reworking operations. However, because of a previous commitment,' he was scheduled to be in Montana at such time; and his own drilling equipment was not immediately' available. As a consequence, on June 22 he engaged the services of one E. M. Bo3tter, who '¿onducted a business of drilling, reworking and servicing of wells, to rework his well No. 2, directing that the operations be underway not later than June 27. Further; under plaintiff’s instructions, an associate obtained from the Louisiana Conservation Department on June 26 the required reworking permit. Then Boy-ter and his crew, on the important day of June 27, moved a drilling rig, pump, rotary and kelly joint to the well site, assembled them, and commenced to drill out the cement plug. However, shortly after the commencement, the water hose connected with the pump, burst. This occurred late in the afternoon; and the crew, being unable to proceed further until a new hose was obtained, ceased work for the day.

There is ample evidence in the record to sustain the described findings! True, the defendant produced witnesses who testified that some parts of the equipment necessary to commence drilling operations (rotary, pump and kelly joint) were not at the site on June 27, they not having seen those items there until the following day. But, as the trial 'judge aptly noted in his reasons for judgment, some of the .witnesses testifying for the plaintiff were men who had actually participated in the moving and assembling of the equipment and had commenced the operations; whereas those giving the conflicting testimony (except one witness who appeared confused as to occurrences on particular dates) were employees of the defendant who worked at a drilling rig some quarter of a mile from the well site and were merely recalling what they did not see on June 27 as they passed to and from their place of employment. Under these circumstances we would not be warranted in disturbing such findings of fact; and we hold, as did the trial judge, that plaintiff was actually engaged in reworking operations on June 27. See Texas Co. v. Leach, 219 La. 613, 53 So.2d 786.

But appellant’s counsel further argue, to quote from their brief, that “should the Court find that reworking operations began on June 27th, the defendant would show that after looking at what happened from that day through June 30th, it becomes clear that this was not an attempt in good faith to rework this well, that the law requires a following through which would demonstrate a bona fide intent to rework, and that the behavior of Johnson did not measure up to the requirements of the law under his contract. This light rig was nothing but a sham, it was incapable of doing the work, and the whole venture was abandoned on June 30th, the excuse being that some gas started spewing out of the well making it unsafe to conduct operations.”

As to the happenings after June 27, 1954, the trial judge announced the following findings and conclusion: On Monday, June 28, a new hose, to replace the one that had burst, wás purchased and brought to the well site. Meanwhile, on that day and following a breaking of tire concrete plug, there was a gas “blow out” in the well. A dangerous situation resulted from the escaping gas, and because of it the workmen refused to continue operations until plaintiff could be contacted and provision made for - coping therewith. Whereupon, D. C. Carnes (an associate), who had been left in charge of the operations on the sublease, telephoned to plaintiff in Montana and told him of the trouble encountered in the reworking of Levee Board No1. 2. In the same 'conversation he- was also informed that the defendant company had just brought in a producing oil well in such close proximity to the subleased property that it'would be necessary for him to drill an offset well. Plaintiff then instructed Carnes to commence to drill the offset well (it could'be drilled in approximately seven days) and to postpone the reworking operations until after it was completed. The drilling of the offset well was commenced on June 30, and it was in progress when the defendant informed plaintiff on July 1st that his sublease was terminated.

The trial judge further found that the equipment used in the reworking operations was adequate for the commencement thereof and could have been readily implemented if that became necessary later on. And he concluded that plaintiff was in no manner in bad faith, commenting: “We are of the opinion that we would have followed the same course.!’

Like the trial judge, we find no evidence of bad faith on the part of plaintiff. Required to be away at the time, he instructed his associate to obtain the necessary permit (this instruction was fulfilled), and he arranged with Boy ter to undertake the reworking operations. The record shows that the latter is a qualified and capable drilling contractor and that he was fully paid by the plaintiff for the time he kept his crew and equipment at the well site.

Also, plaintiff’s witnesses and at least one of those for the defendant testified that the rig was adequate for performing ■ the reworking operations. Another defense witness stated that it was sufficient for commencing the work and that, heavier equipment (plaintiff owned some .that was located nearby) could have been brought in later if necessary, a procedure of that nature being sometimes followed.

Furthermore, as before shown,’ the No. 2 well at the time it was capped with concrete gave indications of being a pro^-ducer. The defendant company, according to an employee, thought that it would produce and was willing to rework it “right now”. Hence, it cannot be correctly said that the plaintiff was merely going'through the motions of reworking what he thought to be a dry hole.

As to the gas blow out and the dangerous situation resulting therefrom- there is no conflict in the evidence. Even witnesses for. the defendant admitted the danger of continuing to drill in the presence of the gas without taking proper precautions. Of course, they testified that the existence of gas does not usually constitute an insurmountable obstacle in drilling or reworking operations, and that there are several different measures which can be employed to eliminate the hazard. But their testimony only strengthens the conclusion that there was no bad faith in delaying the reworking operations in question until the plaintiff could be consulted as to the appropriate safety method to be followed.

As before stated, moreover, plaintiff, on his being informed of the gas “blow out”, was also told that he would be required to drill .an offset well because of the. oil producer just completed by defendant in close proximity to the subleased property. Therefore, it does not seem proper to conclude that he was in bad faith in electing to commence drilling the offset well, which he would have been required to do in a short time, and to postpone briefly the reworking of Levee Board No. 2.

The cases of Texala Oil & Gas Co. v. Caddo Mineral Lands Co., 152 La. 549, 550, 93 So. 788 and Louisiana Live Stock & Planting Co. v. Kendall, 155 La. 122, 98 So. 862, cited by the defendant, are not apposite.' The lease provisions therein required that a well be drilled and completed within a given period. As shown above the sublease involved in this suit provided that it should be forfeited only in the event oil, gas or' any other mineral was not being produced in paying quantities or that drilling or reworking operations were not being conducted on a specified date.

.Conceding the correctness of defendant’s interpretation of the instant contractual provision, which is that plaintiff was required to be conducting reworking operations on June 27 in good faith, we are unable to hold that the trial court erred in maintaining the continued existence of the sublease. The evidence in the record amply supports the conclusion that such requirement was satisfied. The fact that after such date certain unforeseen circumstances arose which prompted plaintiff to delay for a short time the reworking of the well which he had undertaken on the designated date does not -destroy the effect resulting from the commencement of the operations.

For the reasons assigned the judgment appealed from is affirmed.

FOURNET, C. J., absent.


author: ■HAMITER, Justice.

text:
    229 La. 456
    WARREN REALTY COMPANY, Inc. v. Alberta L. Ennis SIBLEY.
    No. 39800.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    Frank Pi Krieger, New Orleans, for plaintiff-appellant.

      Connolly & Simoneaux, M. R. Si-moneaux, Trial Attorney, New Orleans, for defendant-appellee.
   ■HAMITER, Justice.

Plaintiff, alleging itself to be the owner of a certain lot of ground (with improvements) as the result of an adjudication at public auction by the City of New Orleans, seeks in this cause a judgment recognizing its ownership of the property with the right to full and undisturbed possession thereof, and condemning the defendant to pay occupancy rent from September 19, 1949, the date of the adjudication.

The district court dismissed the suit on an exception of no cause of action and the plaintiff is appealing.

The disputed lot of ground, on which there exists a small dwelling, is located in the City of New Orleans in Square No. 261, bounded by Jena, Magnolia, South Robertson, and Cadiz Streets. Plaintiff alleges that the property was adjudicated to it pursuant to the provisions of Act 112 of 1938, LSA-R.S. 33:2861 et scq., this being a statute authorizing public sales by municipalities generally throughout the state of lands forfeited for nonpayment of taxes and prescribing the procedure to be followed in such sales — the method of advertising, minimum price to be paid, etc.

The petition fails to set forth the issuance by defendant to plaintiff of a deed affecting the property (it could not, because there was none issued). However, plaintiff takes the position, in opposing the exception of no cause of action, that immediately upon the adjudication title vested in it, including all , of the rights and privileges appertaining to ownership, and that no deed from the City of New Orleans was necessary.

In this court neither litigant has favored us with a brief or oral argument. Counsel merely filed a “joint motion to submit”, .therein pointing out that the property and the adjudication involved herein are the same as those in State ex rel. Warren Realty Co., Inc., v. City of New Orleans, No. 41,882 of the docket of this court and reported in 226 La. 297, 76 So.2d 308 (a case which we remanded for further proceedings), and further stating that they desire to submit the present appeal for consideration and a decision “based upon the expressions which your Honors made in the matter of Warren Realty Company, Inc., v. City of New Orleans, No. 41,882 of the docket of this Court.” Also in the motion it is suggested that this cause be remanded to be consolidated with the cited case.

In the mentioned former proceeding this plaintiff had sought, by mandamus, to compel the City of New Orleans to issue a deed, to evidence the adjudication to it, upon payment of the sum of $350, the amount of its bid .at the public auction. In defending that suit the- city urged that plaintiff was not entitled to the deed.until it had paid the sum of $3,206.92, this representing the amount bid plus taxes accruing between the date of the forfeiture to the city and the date of the adjudication in question. The defense was based on the city’s interpretation of Act .112 of 1938, ■ LSA-R.S. 33 ¡2861-2876, under which the property had allegedly been adjudicated. The opinion supporting our decision in that cause pointed out that we could not order the city to deliver title because Act 155 of 1894, LSA-R.S. 47:2191, alone governed the purported adjudication and that the record did not establish that it was made in conformity with the provisions of such statute.

In alleging herein that it became the owner of the property at the auction held pursuant to the provisions of Act 112 of 1938, instead of setting forth that the sale was made in conformity with the appropriate statute, Act 155 of 1894, plaintiff’s petition fails to state a cause of action. As we indicated in the earlier case, the provisions of the two statutes differ in- several material respects; and an examination of them clearly shows that an adjudication in compliance with the provisions of the 193-8 act is not necessarily one in keeping with the requirements of the 1894 statute.

Although counsel have suggested that this cause be remanded, we think it proper, in the interest of orderly procedure, to affirm the trial court’s ruling which sustained the exception of no cause of action and dismissed the suit. The dismissal under these circumstances will amount to nothing more than a nonsuit, and the plaintiff can hereafter pursue whatever rights it may have against this defendant if and when it is awarded a judgment in the City of New Orleans case that was remanded to and is presently pending in the district court.

For the reasons assigned the judgment of the district court sustaining the exception of no cause of action and dismissing this suit is affirmed at appellant’s costs.