text:
    PANAMA CITY et al., Appellants, v. STATE of Florida et al., Appellees.
    Supreme Court of Florida, Division B.
    March 13, 1957.

      Mercer P. Spear, Panama City, and John N. Mitchell, New York City, for appellants.
    R. S. Pierce, Jr., Marianna, and James N. Daniel, Chipley, for appellees.
   DREW, Justice.

This is an appeal from a final decree of the Circuit Court of Bay County declining to validate $7,000,000 of water front improvement revenue bonds of the City of Panama City, Florida and dismissing the petition of said City of Panama City filed under the authority of Chapter 75, Florida Statutes 1955, F.S.A., for that purpose.

The proceeds to be derived from the sale of the proposed bonds in the principal sum of $7,000,000 were to be used for the purpose of two large water front developments in Panama City, one of which was to be located at the foot of Harrison Avenue along Government Street at St. Andrew Bay for some thirteen hundred and thirty feet and the other to be located in the St. Andrew community extending from the foot of 10th Street along Bayview Avenue for some seven hundred and fifty feet. The land to 'be used for the construction of the project was to be created primarily over the bottom of St. Andrew Bay by filling in from the Shore seaward. At the time of the petition for validation a part of said lands were owned by the City and the remainder was to be acquired by purchase, gift or condemnation. The Panama City Marina to be constructed upon such filled-in lands was to consist of the following buildings, viz.: city hall, civic auditorium, two concessions buildings, administration building and a marine sales and service building. The St. Andrew Marina was to consist of a concessions building, a marine sales and service building and an administration building. At both of said sites there would be docks, docking facilities, waterways, necessary utilities, large automobile parking areas and other facilities required in connection with the operation of a large marina.

• The resolution authorizing the issuance of the bonds and the trust agreement attached to and made a part of said resolution, provides, among other things, that said bonds, both principal and interest, shall be retired solely and exclusively from funds derived from the net revenues of the revenue producing facilities of the project and from the proceeds of excise taxes theretofore authorized by sundry ordinances of said City on the sale of cigarettes, utility services and from license taxes and franchise taxes, such taxes being generally referred to in the resolution and trust agreement and hereafter in this opinion as cigarette taxes, utility services taxes, license taxes and franchise taxes. There is an express agreement in the resolution authorizing the issuance of said bonds that “it will never be necessary or authorized to use the ad valorem taxing power or any other funds of said City to pay the principal of and interest on the Bonds to be issued pursuant to this Resolution, or to make any of the reserve, sinking fund or other payments provided for in this Resolution, and the Bonds to be issued pursuant to this Resolution shall not constitute a lien upon any of the properties of said Municipal Waterfront Improvements or upon any other property whatsoever of the City.”

The evidence before the Court showed that the concessions buildings at the Panama City Marina were divided into twenty-one separate shops along a main concourse in which, according to the plans, it was proposed to have such shops as men’s sporting goods wear, tackle shops, marine supplies, drug stores, novelty shops, offices for the Chamber of Commerce, travel agent’s office, photo shops, beauty shops, etc. The concessions building at St. Andrew's Marina contained twelve shops [some five additional shops were contemplated in a future proposed area] designed to serve generally the same purpose and accommodate the same type of shops as in the Panama City Marina. It was estimated that from a total anticipated revenue for the first year of operation from all sources of $581,000, approximately $129,000 would be derived from rentals for these shops. There were other rentals anticipated from space in the administration and other buildings as well as from the gasoline concession. Other revenues were to be derived from parking meter revenue, boat slip revenue and income of that nature. Slightly more than 20% of the total revenue for the first year, therefore, consisted of rentals to be derived from the various offices and store spaces in the concessions buildings. So much for the percentage of income from this source compared to the overall income.

It appears that of the total project area in both Marinas, the concessions buildings will occupy 1.22% of the total area. These figures appear in the brief of the City and are not questioned or disputed by appellees.

The brief of the City directs its argument primarily to the general proposition that the circuit court erred in declining to validate the bonds and in dismissing the petition. The City asserts it has the statutory authority to acquire and construct the subject improvements under Ch. 11678, Laws of Florida, Extraordinary Session, ■November 1925, as amended [the City Charter] and Section 167.21, Florida Statutes 1955, F.S.A. Pertinent portions of such laws relied upon by the City and to which we shall allude hereafter are as follows:

“Section 9. That the commission shall have the power to acquire by gift or purchase and to have possession of, hold and use any real estate or personal property of any and all kinds whatsoever, including docks and recreational facilities * * * or any other ptiblic uses or purposes whatsoever of the city or its inhabitants or visitors, and if found desirable or expedient may sell, lease, rent or otherwise dispose of all or any part of same for the benefit of the city. * * * It may acquire by purchase, gift or otherwise, and may lease, receive, hold and use real or personal property 'beyond the city limits, * * * for the establishment and maintenance of * * * auditoriums * * * which the commission may deem necessary and proper.” Sp.Acts 1953, c. 29398. (Emphasis supplied.)
“Sec. 10. That the said City is hereby delegated authority to exercise the right and power of eminent domain * * * for the following uses and purposes: * * * for city building * * * and other municipal purposes * * *_»
“Sec. 11. The said City shall have full power and jurisdiction over * * * waters within the City limits; * * * to control, manage and designate the use of all docks, wharves or piers within the City limits * *
“Sec. 144. * * * The City Commission shall have the power, within or without its corporate limits to conr struct, condemn, purchase, acquire or lease, and to maintain, conduct, and operate within and without the corporate limits, wharves * * * ship channels, breakwaters * *

Section 167.21, F.S.A. reads in part as follows:

“167.21 Wharves, vessels, bridges, ferries, fires, improvements. The city or town council may construct wharves, quays and docks; regulate wharfage, dockage, and the moorings and anchorage of vessels within the corporate limits, unless otherwise provided by law; construct bridges, establish ferries, and fix the rates of fer-riage and tolls; erect all necessary public buildings and control and dispose of the same as the interests of the city or town may require; * * * and do and perform all such other act or acts as shall seem necessary and best adopted to the improvements and general interest of the city or town.” (Emphasis supplied.)

Appellees insist, however, (1) that the foregoing laws do not confer the necessary authority upon the City to make the proposed improvements and that such improvements may not be made in the absence of an enabling act of the Legislature specifically authorizing and contemplating such improvements. Moreover, appellees say (2) that the circuit court properly dismissed the petition because a substantial portion of such improvements will be places of business to be leased by the municipality to private corporations and individuals for the operation of various types of business from which substantial sums of money will be received thereby removing said improvements from that type where such private business purposes were wholly incidental to the main purpose. It is also urged by appellees (3) that the construction of said improvements and the leasing of the same to private individuals for the purpose of operating private businesses amounts to obtaining money for or a loan on the credit of the municipality to and for the benefit of such private lessees in violation of Section Í0 of Article 9 of the Constitution of Florida. F.S.A. We shall address our views to the propositions of appellees in the order named.

With reference to the contention that the City is without authority to construct the contemplated improvements in the absence of an enabling act of the Legislature specifically authorizing such work, we think the answer to the substantial part of this question is found in State v. City of Clearwater, 1938, 135 Fla. 148, 184 So. 790, 794. As we analyze appellees’ argument they make no challenge to the power of the City under the quoted sections of the city charter and the general law to construct the city hall, the auditorium, the wharves, docks and substantially all of the other portions of the project except the so-called concessions buildings and the filling in of the land along the water front. As to the power to construct the docks, wharves and generally to build the marina, as we construe the term in its narrowest sense, we think State v. City of Clearwater, supra, is clearly controlling. The charter provision relied on to build the yacht basin for the City of Clearwater is no broader in its scope — in fact not as all-inclusive — as the charter powers of the City of Panama City which we have quoted. But in that case we specifically held that a yacht basin was a combination of some of the facilities expressly authorized in the Clearwater charter and that “its construction, operation and maintenance come within the purview of the leg-' islative authorization.” We therefore hold that the City has the legislative authority under the quoted sections of its charter to construct the docks and build and operate the marina in its narrowest sense and having such authority, it is authorized to issue its bonds for the purpose of financing the undertaking. State v. Clearwater, supra.

We do not deem it necessary to labor the question of whether the city hall and civic auditorium is a municipal purpose and may be lawfully constructed by Panama City. Nor do we understand that there is any serious contention of appellees that this may not be done. The authority to do* so clearly appears in the quoted provisions of the charter. It is urged, however, and strongly so by appellees that the City lacks the authority to build up land in the bay and direct and operate what amounts to a general business center consisting primarily of the concessions buildings and certain other phases of the improvement project. Section 9 of the city charter, supra, authorizes the City “to acquire by gift or purchase and to have possession of, hold and use ány real estate * * * ” for public purposes and to “sell, lease, rent or otherwise di's-pose of all or any part of same for the benefit of the city.” The City also has power under Section 10, supra, to condemn lands for public buildings or other municipal purposes and under Section 11 it has jurisdiction over the waters within the city limits with power to control, manage and designate the use of all docks, wharves or piers. We think it clear under the cited sections of the city charter that the City has the power to condemn lands along the edge of navigable waters for public purposes and having thus acquired the title thereto to extend the same by filling in accordance with the provisions of the applicable statutes of this State. Section 271.01, Florida Statutes 1955, F.S.A., expressly vests in riparian owners the right to make such fills. It is to be noted that the terms of said act expressly cover “land owned by * * * any municipality * * * lying upon any navigable stream or bay of the sea or harbor * * *.” That act further provides that upon such fill being made in accordance with its provisions and that of the other laws of the State relating thereto, the title to such filled in lands shall thereupon vest in the riparian proprietor. See Trustees of Internal Improvement Fund v. Claughton, Fla.1956, 86 So.2d 775; Holland v. Fort Pierce Financing & Construction Co., 1946, 157 Fla. 649, 27 So.2d 76 and Hayes v. Bowman, Fla., 91 So.2d 795. We think it clear, therefore, and hold that the City of Panama City does have the authority under existing law to carry out that portion of the project which authorizes the acquisition of title to uplands and the filling in of the same from the shore seaward, the construction of bulkheads and the necessary works in connection therewith.

We have already noted that the record shows that estimated rentals from spaces in the concessions buildings for the first year will amount to slightly more than 20% of the total anticipated revenue for the first year and that the concessions buildings will occupy 1.22% of the total area involved in both projects. Appellees urge that such concessions buildings and the income therefrom and certain other alleged non-essential elements of the project are so substantial in their nature that it cannot be said that they fall 'within the exception laid down by this Court in Gate City Garage v. City of Jacksonville, Fla. 1953, 66 So.2d 653, 659, and the cases following that where we held that improvements of this kind may be incorporated in a public project to long as they “are mere incidents to the main or primary purpose of the buildings [and] are for the convenience of those who use the buildings or facilities for a public purpose.” To put it another way, appellees say that this phase of the project is so substantial that it in effect destroys the public nature of the entire project and being so interlaced and interwoven therewith that the entire project contemplates an improvement not of a municipal or public nature within the contemplation of the charter of the City and the Constitution and laws of this State.

It is apparent at the very outset of the consideration of this proposition that the difference presented in this case from that which appeared in Gate City Garage v. Jacksonville, supra, is one of degree and not of kind. The development of the law in this State on this question and particularly a study of the legislative history with relation to public projects of a recreational and entertainment nature reveals the allowance to the public bodies of an extremely wide latitude in this field. Compare for instance the cases of State v. City of Miami, Fla.1954, 76 So.2d 294; State v. Inter-American Center Authority, Fla. 1955, 84 So.2d 9; and State v. Daytona Beach Racing and Recreational Facilities District, Fla.1956, 89 So.2d 34 where the projects authorized by the Legislature and approved by this Court were much broader than that contemplated by Panama City in this instance. In those cases we upheld the power of the authority to issue bonds and while in State v. Inter-American Center Authority and State v. Daytona Beach Racing and Recreational Facilities District, the act involved was a special act of the Legislature specifically authorizing the bonds, we are unable to see any substantial difference in this case where we now hold that legislative authority exists for the primary improvement and that bonds may be issued therefor. The evidence before the trial court, which we have examined carefully, substantiates the proposition that facilities of the kind contemplated are a necessary adjunct to the successful operation of the main enterprise, namely the marina. This being true, it follows that such business is at least in that respect incidental to the operation of the marina. It is not the principal purpose of the undertaking. Compared to the overall project it is casual, minor and of secondary importance. It is an appendage, to so speak and therefore “an incident to the main or primary purpose and for the convenience of those who use * * * the facilities for a public purpose.”

We do not attach much significance to the small area to be occupied by the concessions buildings. Nor can we agree that the amount of rent to be derived therefrom is of such great importance. The main factor, as we view it, is that these concessions buildings and the businesses to be operated therein are required to insure the success of the main undertaking. Nor can the fact be overlooked that while these concessions buildings will be owned and leased by the City, the businesses to be carried on therein, as we understand the record, will not be operated by the City but as private enterprises. See Sunny Isles Fishing Pier, Inc., v. Dade County, Fla. 1955, 79 So.2d 667.

It is, therefore, our conclusion, and we so hold, that the construction of the concessions buildings as contemplated in the overall plan does not destroy the public nature of the project nor prevent the issuance of bonds therefor.

The conclusion we reach in the immediately preceding paragraph constitutes an .adverse answer to the third point presented by appellees to the effect that such improvements therein alluded to are in violation of Art. IX, Section 10 of the Florida Constitution.

One other matter, while not seriously urged by appellees, we think should be answered. And that concerns the power of the City to pledge the cigarette tax, utility service tax, license tax and franchise tax to the payment of these obligations in the event the revenues derived from the project are unable to meet the requirements of principal and interest as they severally become due. All of these questions have been answered in previous opinions of this Court. For instance, so far as the power to pledge the cigarette taxes are concerned, see State v. City of Coral Gables, Fla.1954, 72 So.2d 48; as to the utility service taxes, see State v. City of Winter Park, 1948, 160 Fla. 330, 34 So.2d 740; as to the franchise taxes, see State v. City of Pompano Beach, Fla.1950, 47 So.2d 515, and in State v. Monroe County, Fla.1955, 81 So.2d 522, 523, we said with reference to the general proposition of excise taxes, “We have repeatedly held that revenue bonds issued for a public purpose, payable solely from revenues derived from the utilities service, excise taxes, licenses or other sources than ad valorem taxes, do not require an approving vote of the freeholders under Section 6, Article IX of the Constitution.” (Emphasis added.) See also Welker v. State, Fla., 93 So.2d 591, for the most recent and very thorough consideration of this question. We affirm the holdings in the above cases and conclude here that insofar as the pledge of the various excise taxes referred to in the resolution of the City and the trust indenture made a part thereof as a cushion against a default in the bonds by virtue of lack of sufficient revenue of the project itself, such pledge is a valid and lawful one under the above and other decisions of this Court.

We want to particularly emphasize that there is no pledge of the ad valorem taxing power in this case nor can there be any lien against the project itself. This is assured by the provisions of the bond resolution and trust indenture and constitutes the very foundation for our holding that these bonds will constitute, when issued, valid obligations of the City of Panama City to the extent and only to the extent authorized by the aforesaid resolution and trust indenture.

We conclude with the observation that it is not within our province to pass upon the wisdom of the actions taken by the City of Panama City in the issuance of these obligations. Nor is it within our power to change the settled law of this State under which the elected officials of the City have the power to issue bonds of the character herein described and construct the contemplated improvements without the previous approval of the citizens. In the able brief of appellees much concern is expressed over the ever-expanding pattern of issuing revenue bonds by the various local governments and authorities in this State without the approving vote of those who must ultimately pay the freight, and the use of such funds for questionable public purposes. The concern expressed by appellees may be well founded but the law in this field has been developed to the point that the power clearly exists in the City to issue bonds of this type absent an approving vote and to use the proceeds thereof as contemplated. It is true that the project here under consideration is wide in scope and embraces activities and facilities to a much greater degree and extent than that in many of the issues which we have considered on previous occasions. But, as we have pointed out, the difference is one of degree and not of kind. On previous occasions we have said that the power of the Legislature over municipal corporations in this State is plenary and that the Legislature may not only grant powers but it may prohibit the exercise of powers. North Shore Bank v. Town of Surfside, Fla.1954, 72 So.2d 659, 662. In the case just alluded to, we specifically said that it was in the power of the Legislature to “create a municipality and prohibit the issuance by it of any bonds of any nature whatever.” If there is to be a change in the law of this State with reference to the power of the cities to issue revenue bonds without an approving vote of the freeholders or with reference to the type of facilities that may be constructed with public money, that change should come from the Legislature. See also State v. City of Fort Pierce, Fla. 1956, 88 So.2d 135.

The decree appealed from must be reversed and the cause remanded with directions to enter a decree of validation as provided by Chapter 75, Florida Statutes 1955, F.S.A.

TERRELL, C. J., and HOBSON and O’CONNELL, JJ., concur.


source: Caselaw Access Project

author: McCALEB, Justice.

license: Public Domain

text:
    231 La. 1058
    STATE of Louisiana v. Willie GREEN.
    No. 43238.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    William T. Bennett, Clinton, Benton & Moseley, Baton Rouge, for defendant-appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Richard Kil-bourne, Dist. Atty., Clinton, for appellee.
   McCALEB, Justice.

Appellant was charged, tried and convicted of simple kidnapping and sentenced to serve two years at hard labor in the State Penitentiary. During the proceedings, he reserved 10 bills of exceptions and he has appealed, relying on nine of these bills for a reversal of his conviction.

Bill No. 2 was taken to the overruling of a motion to quash the indictment. This motion alleges that the indictment does not sufficiently apprise appellant of the charge against him in that it fails to set forth with legal certainty the identity of the crime so as to enable appellant to prepare his defense and, therefore, is vi-olative of Article 1, Section 10 of the Constitution.

We find no merit in the motion to quash. The indictment, which is couched in the language of the statute, charges that appellant “did with force and arms commit the crime of Simple Kidnapping as defined by R.S. 14:45 in that he intentionally and forcibly seized and carried Bernardine George from one place to another without the consent of the said Bernardine George, ■Jfi >>

Simple kidnapping, as defined by R.S. 14:45, may be committed in three separate and distinct ways, One of the ways in which the crime may he committed is by the intentional and forcible seizing and carrying away of any person from one place to another without his consent. According to the allegations of the indictment, that is exactly what appellant did to Bernardine George.

Under Article 227 of the Code of Criminal Procedure, R.S. IS :227, it is required that the indictment must state every fact and circumstance necessary to constitute the offense “but it need do no more, and it is immaterial whether the language of the statute creating the offense, or words unequivocally conveying the meaning of the statute, he used”.

Counsel for appellant argue that appellant is entitled to be advised by the indictment of the place from which or to which the prosecuting witness was transported, the means by which she was transported and the type of force used in seizing and carrying her away.

There is no substance in this contention. Since the statute itself adequately describes the act or acts constituting the offense, it was not essential that the method used in perpetrating the crime be detailed. See State v. Ward, 208 La. 56, 22 So.2d 740 and the many authorities there cited.

The cases of State v. Hebert, 205 La. 110, 17 So.2d 3; State v. Varnado, 208 La. 319, 23 So.2d 106; State v. Pettifield, 210 La. 609, 27 So.2d 424; State v. Blanchard, 226 La. 1082, 78 So.2d 181 and State v. Straughan, 229 La. 1036, 87 So.2d 523, relied on by counsel for appellant are not apposite as, here, we find that the statute expresses, without uncertainty or ambiguity, the acts constituting the offense, and therefore, a charge couched in the language thereof is sufficient.

Bill of Exceptions No. 3 was reserved to certain statements made by the judge in the presence of the jury which appellant claims were comments, on.the facts of the case and an expression of an opinion as to the acts that had been proven. Ber-nardine George testified that, while she was visiting the home of Priscilla Davis (another Negro girl) in Clinton, appellant grabbed her, dragged her to his car and drove away with her to a secluded spot on a country road known as “Gurley Road” where he parked the car; that he then “asked me why I didn’t want to go” and that she replied “Because you have a wife”; that he then remarked that “that doesn’t make any difference” and asked her “do you want to go to Sunday School tomorrow?” to which she said “Yes” whereupon he stated “Well, you are goin’ with two black eyes”. At this point, defense counsel objected to the testimony on the ground that the conversation took place after the offense was completed. In overruling the objection, the court stated:

“It seems to me like its definitely all part of res gestae, all together. She got in the car, he forced her in the car and forced her to drive off with him”.

Counsel immediately excepted to the judge’s comments on the evidence and the judge replied “I will instruct the jurors to disregard anything that I have said regarding the testimony”. Counsel then moved for a mistrial and the court ruled as follows:

“To which request, the Court at this time overrules the request for a mistrial because the Court considered the — in saying that it was part of the res gestae, merely commented that it was force, merely commented on what she had said, that she was forced into the car, forced to leave. The Court does not consider it a prejudicial statement to the jury not to the cause of the defense in this case”.

Defense counsel reserved a bill to this ruling and immediately thereafter the judge instructed the jury that he was without right to comment on the evidence and that he would later charge them that they were the sole judges of the law and the evidence in tEe case.

There cannot he any doubt that the remarks of the judge constituted a comment on the facts of the case. Since this is contrary to our express law (Article 384 of the Code of Criminal Procedure, R.S. 15 384) and the jurisprudence of this Court, appellant was entitled to a mistrial if the remarks themselves are viewed as being so prejudicial to his substantial rights that the error could not be cured by the instruction of the judge for the jury to disregard his comments.

In the recent case of State v. Nicolosi, 228 La. 65, 81 So.2d 771, we had occasion to review the jurisprudence respecting comments by the trial judge on evidence and the instances in which such comments constitute reversible error. After considering two lines of cases, in which different results were reached, and giving due regard to Article 557 of the Code of Criminal Procedure, R.S. 15:557, (providing that no new trial shall be granted on appeal unless it appears that the error committed is prejudicial to the substantial rights of the accused or constitutes a substantial violation of a constitutional or statutory right), we concluded that each case must be determined “under its own special state of facts”.

In the case at bar, we are convinced that the judge erred in not granting a mistrial for we think that his remarks were of such a nature that their effect on the jury could not be entirely eliminated by his instruction that they be disregarded. The statement that “ * * * he forced her into the car and forced her to drive off with him” plainly indicated to the jury that the judge might entertain the opinion that appellant had been proved guilty of simple kidnapping. If an inference can be drawn from the objectionable statement that it is an expression or implication of an opinion as to the guilt of the accused, the error cannot be cured by an instruction to the jurors that the remarks be disregarded because the view .of the judge on any important fact carries such weight with the jurymen that it is difficult to believe that it could be erased from their minds. Compare State v. Dreher, 166 La. 924, 118 So. 85; State v. Childers, 196 La. 554, 199 So. 640 and State v. Iles, 201 La. 398, 9 So. 2d 601.

Since a new trial must be granted, we find it unnecessary to consider the other bills of exceptions relied on by appellant.

The conviction and sentence are set aside and the case is remanded for a new trial.

FOURNET, C. J., absent.

      . Bill No. 1 has been abandoned.


author: FOURNET, Chief Justice.

text:
    231 La. 1065
    Anthony MODICA v. EMPLOYERS CASUALTY COMPANY et al.
    No. 42801.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Rehearing Denied Feb. 25, 1957.

      Joseph R. Bethards, Hayes & Leach, Shreveport, for plaintiff-appellant.
    Jackson, Smith, Mayer & Kennedy, Simon & Carroll, Shreveport, for defendants-appellees.
   FOURNET, Chief Justice.

This suit was instituted by Anthony Módica, the owner of a brick building in Bossier City, La., fronting on U. S. Highway 71, housing two stores and a residence in rear, for alleged damage to the structure in the month of September, 1953, when (according to the allegations of the petition) the defendant Triangle Pipeline Company, in order to facilitate the placing of a pipeline across and under the roadbed of U. S. Highway 71 at its intersection with a cross street named Anthony Street — the plaintiff’s building occupying the southeast corner of the said intersection, — excavated a ditch some fourteen feet in depth down the middle of Anthony Street, and the powerful equipment used in performing the work and in ramming the sections of pipe through the earth under the roadbed as Vvell as beneath the railroad tracks paralleling the highway on the far side, a total distance of about 225 feet, caused such violent tremors that the plaintiff’s building and its foundations were caused to vibrate, resulting in damage, though such was not immediately apparent; that in the month of August, 1954, it was first observed that cracks and crevices had opened in the exterior and interior walls, and that the building had settled at the corner and side adjacent to the area where the work was done; and that since the date of discovery the damage had become gradually worse, to the extent that at the time suit was filed on March 15, 1955, necessary repairs would cost $7,355, and permanent damage to the structure was estimated at $10,000, making a total claimed of $17,355.

A plea of prescription liberandi causa of one year, under Civil Code Article 3536, filed by the defendants, Triangle Pipeline Company and Employers Casualty Company, its liability insurer, having been overruled, they answered, denying all allegations of fact, including the assertion that the Pipeline Company had been engaged in placing a pipeline under the roadbed. Trial on the merits was begun, and at the conclusion of the introduction of evidence by the plaintiff the defendants again filed and urged a plea of prescription and filed an exception of no cause or right of action; the former was overruled but the exception of no right of action was maintained and plaintiff’s suit was dismissed. He has appealed from that judgment, and defendants have answered the appeal, reurging the plea of prescription and the exception of no cause of action.

The trial judge, in maintaining the exception of no right of action and dismissing plaintiff’s suit, found as a fact that the evidence in the record failed to establish with that degree of certainty required by law that the defendant Pipeline Company was liable for the damaged condition of plaintiff’s building, observing that there had been no evidence which could form the basis for a judgment against defendants.

Counsel for plaintiff argues in brief that the evidence adduced proves that in the year 1953 the work of driving a pipeline under U. S. Highway 71 in the vicinity of plaintiff’s premises was carried on; that the method used was such as to cause vibration of the surrounding ground and buildings which could have caused the foundation of plaintiff’s building to shift and sink; and contends that in as much as the plaintiff, in observing the work being done, noted that some equipment bearing the defendant’s name was used on the project, along with equipment belonging to the Snelling Company, a prima facie case against the defendant has been made; and that the burden then shifted to the defendant to prove its lack of liability. While plaintiff originally labeled defendant Pipeline Company a joint tort feasor together with other parties who may have been involved in the operation, claiming that as such it may be sued separately, in a supplemental brief he urges that the defendant is liable for damages under Article 667 of the Louisiana Civil Code on the theory of “absolute liability” regardless of fault; and contends that the plea of prescription, reasserted on oral argument here by defendants’ counsel, is not applicable because the damage complained of was not known to exist until August of 1954, so that it was only then that prescription began to run, and this suit, instituted in March of 1955, was well within the year.

After reading the evidence we agree with the trial judge’s conclusion that the plaintiff has failed to bear the burden of establishing the defendant’s responsibility for the damages plaintiff has sustained. It necessarily follows, therefore, that whether his cause be founded in tort or on Article 667 of the Civil Code is immaterial.

The plaintiff, relying on certain Court of Appeal decisions holding in effect that proof of ownership of a motor vehicle at fault in an accident creates an inference of responsibility on the owner, argues that he has made a prima facie case here since the evidence shows that vehicles and equipment marked “Triangle Pipeline Company” were on the scene where the work was being performed and assisted in the operations; and in as much as the defendant has not rebutted this presumption, he, the plaintiff, is entitled to recover. The fallacy of this argument lies in the failure of plaintiff to establish the fault of the vehicle or the owner, according to the findings of the trial judge — with which we are in accord.

The conclusion reached on the merits makes it unnecessary to discuss the plea of prescription reurged here by defendants.

For the reasons assigned, the judgment appealed from, in so far as it dismisses the plaintiff’s suit, is affirmed.

HAMITER, J., concurs in the decree.

      . Article 3536, Louisiana Civil Code, declares: “The following actions are also prescribed by one year: That for * * damages * * * resulting from offenses : or quasi offenses. * * * ” Article 3537 provides that “The prescription mentioned in the preceding article runs: * * * from the day * * * on which the injurious * * * disturbance or damage were sustained. * * * ”

      . “Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.”


author: PONDER, Justice.

text:
    231 La. 1071
    Dr. Harry B. CAPLAN v. AIRPORT PROPERTIES, Inc. et al.
    No. 42882.
    Supreme Court of Louisiana.
    Feb. 25, 1957.

      Sydney J. Parlongue, New Orleans, for defendants-appellants.
    Meyer Sabludowsky, Jorda S. Derbes, New Orleans, for plaintiff-appellee. .
   PONDER, Justice.

Plaintiff brought suit for double the deposit made in an agreement to purchase real estate and for attorney’s fees and costs. Defendants answered averring that there was no formal putting in default. From a judgment in favor of the plaintiff in the amount of $5,200 representing double the deposit, $1,000 for attorney’s fees and costs,, the defendants have appealed.

Plaintiff on March 15, 1955 entered into-an agreement to purchase real estate from the defendants, Airport Properties, Inc. and A. K. Roy, Inc., the latter being the agent of Airport Properties. At the time the-plaintiff deposited the sum of $2,600 being ten percent of the purchase price called for in the contract, viz., $26,000. The property agreed to be conveyed was described in the contract thus: “The property sold subject to being 460 feet front Veterans Highway and containing no dedicated streets or rights-of way or servitudes to be dedicated or deducted, unless purchaser desires same.”

According to the terms of the agreement the act of sale was to be passed prior to May 15, 1955 but the record shows that the defendants did not have record title to the property and upon their request the plaintiff granted extensions on April 2, 1955, April 30, 1955 and May 31, 1955. In the last of these extensions it is stated that it was agreed that Airport Properties, Inc. would furnish to the Lawyers Title Insurance Corporation of New Orleans, within thirty days from May 31, 1955, information pertaining to Airport Properties, Inc. title ownership and acquisition. It is admitted that the defendant Airport Properties, Inc. was not on March 15, 1955, the date of the original agreement, nor at any time thereafter the record owner of the property it agreed to convey.

The information as to title and acquisition was never furnished as requested in the last extension of May 31, 1955 and on July 13, 1955 plaintiff addressed a letter to the President of Airport Properties stating that he was putting it in default due to defendants’ inability to deliver a valid and! merchantable title within the time set forth in the extension agreement. It was stated in this letter that unless notification was received by plaintiff before July 25, 1955 that defendant was able to tender valid title under the agreement to purchase, litigation would follow. Having received no answer to this letter, the attorney for the plaintiff again on July 27, 1955 addressed a letter to the president of the defendant company, Airport Properties, Inc., requesting information regarding title to be furnished not later than August 2, 1955. This letter states:

“I am accordingly setting the date for the act of sale to be passed by my office on Monday, August 8, 1955 at 10:00 a. m. My client is willing and able to accept title to the above described property and will be present at my office on the stipulated date.”

No response was again received from the defendants and yet in their answer they allege that there was no formal putting in default.

This Court said in Fox v. Doll, 221 La. 427, 59 So.2d 443, 445, “it is not necessary to put one formally in default who refuses to perform or who acknowledges an inability to perform.” The fact that the defendants did not own the property at the time the agreement to purchase was entered into is of no moment. As counsel for the appellee correctly argues the sale of a hope is perfectly legal but when this hope is falsely represented as an actuality and does not materialize within the term of the contract then one must pay the penalty. The defendants herein were not required to have title at the time of the original agreement but when called upon within the stipulated time to convey title by an act of sale they must be able to do so or forfeit double the earnest money deposited. This has been decided by this Court in the case of Ducuy v. Falgoust, 228 La. 533, 83 So.2d 118.

Much has been said in briefs filed in this Court (and in the testimony) about the fact that the property specified to be sold was later found to embrace two streets that may or may not have been dedicated. But a discussion of this phase of the case is not necessary in view of the fact that the record shows that the plaintiff was ready, willing and able at all times to take title to the property.

The appellant states in its brief that it is its belief that the award of $1,000 attorney’s fees is hardly justifiable in this case. It advances no reason whatsoever to support this statement and offered no evidence in the lower court to contradict the testimony of the attorney presented by the plaintiff in this respect. Such being the case, we are in no position to say that the award is excessive.

For the reasons assigned, the judgment of the lower court is affirmed at appellants cost.


author: SIMON, Justice.

text:
    231 La. 1076
    Homer H. HARRIS, Sr. v. James BARRON et al.
    No. 41706.
    Supreme Court of Louisiana.
    Feb. 25, 1957.

      Gravel, Humphries, Sheffield & Mansour, Alexandria, for appellant.
    Harold W. Hill, Alexandria, for appellee.
   SIMON, Justice.

Plaintiff, alleging himself to be the owner of certain property as well as the timber growing and standing thereon, filed this suit against defendants for the wrongful cutting, felling and removal of said timber. He prayed that defendants be adjudged in legal and moral bad faith and condemned to pay in solido the sum of $2,467.29, the alleged manufactured value of the timber so cut and removed. Alternatively he prayed that should the Court find the defendants are not in moral but in legal bad faith, then that the said defendants be condemned to pay in solido the sum of $2,033.43, the alleged manufactured value of said timber, less the cost of the manufacturing thereof. In the further alternative, he prayed that should the Court find the defendants neither in legal nor in moral bad faith, then the defendants should be condemned to pay in solido the sum of $774.23, the alleged stumpage value of said timber.

Defendants denied any liability whatsoever to plaintiff.

After trial on the merits the district court concluded that the defendant Barron was in legal bad faith in cutting and removing plaintiff’s timber and rendered judgment condemning the said defendant to pay the sum of $1,060.85 together with legal interest from date of judicial demand until paid, as well as all costs.

James Barron, the only defendant affected by the adverse decision, has appealed suspensively to this Court. Plaintiff has answered and prays that the judgment be amended by increasing the amount allowed therein from $1,060.85 to $2,467.29. In his brief and in argument, however, plaintiff contends that the judgment appealed from should be amended by increasing the amount of the award from $1,060.85 to $1,527.71, or, alternatively, to the sum of $1,073.04.

On examining the record with the view of determining our jurisdiction, we find by the evidence adduced that the amount in dispute at the time the case was submitted to district court for decision did not exceed the sum of $2,000.

In an effort to sustain jurisdiction in this Court, counsel for appellant maintains that this suit is to recover a sum in excess of $2,000.00 exclusive of interest for alleged cutting of timber, and that therefore appellate jurisdiction is vested in this Court under the provisions of La.Const.1921, Art. 7, Sec. 10, LSA.

In determining the question of jurisdiction this Court is not bound to accept the allegations of the petition but will look into the record to ascertain the real amount in dispute. Allegations of jurisdictional facts are not the exclusive test of jurisdiction. Wilkins v. Gantt, 32 La.Ann. 929; Lea v. Orleans, 46 La.Ann. 1444, 16 So. 456; Spearing v. Whitney-Central Nat. Bank, 129 La. 607, 56 So. 548; Wagner v. New Orleans Ry. & Light Co., 151 La. 400, 91 So. 817.

In the case of Nash v. Curette, 218 La. 789, 51 So.2d 71, 73, with reference to the appellate jurisdiction of this Court, we pronounced the following principles: “It is well settled in the jurisprudence of this state that a plaintiff’s allegations as to the amount in dispute will not control in determining the appellate jurisdiction of this court where the nature of the case, as disclosed by the record, is such that an award in plaintiff’s favor could not exceed our minimum jurisdiction of $2000.00. See Bensel v. Ruhlman, 154 La. 150, 97 So. 347; Guidry v. Breaux, 158 La. 1002, 105 So. 43; Trahan v. Breaux, 212 La. 459, 32 So.2d 845.

“Further, it is well settled that, where the allegations of damages are evidently exaggerated, they will be disregarded by this court in passing upon the question of jurisdiction. Quaglino v. Curren, 127 La. 126, 53 So. 464; French v. Trout Creek Lumber Co., 141 La. 18, 74 So. 575; Wagner v. New Orleans Ry. & Light Co., 151 La. 400, 91 So. 817; Buck v. Latimer, 151 La. 883, 92 So. 372; Lo Cicero v. Societa Italiana Di M. B. Christoforo Columbo, 151 La. 887, 92 So. 373; Buttner v. Palmisano, 152 La. 587, 93 So. 880; Walsh v. Bush, 206 La. 303, 19 So.2d 144.”

In the early case of Wunderlich v. New Orleans Ry. & Light Co., 143 La. 626, 79 So. 80, this court held that, “ * * * where the appellate jurisdiction depends upon the amount involved, the question of amount will be determined by the circumstances disclosed by the records, rather than by the allegations of the litigants * * *. Wilkins v. Gantt, 32 La.Ann. 929; State ex rel. Police Jury of Livingston Parish v. Miscar, 34 La.Ann. 834; Buddig v. Baldwin, 38 La. Ann. 394; Pinckney v. Wolf, 41 La.Ann. 306, [6 So. 27]; Johnson v. Hosmer, 108 La. 697, 32 So. 961; Leury v. Baton Rouge Compress Co., 117 La. 956, 42 So. 439; Schlemmer v. Howard, 120 La. [321] 322, 45 So. 263; Nick v. Bensberg, 123 La. 351, 48 So. 986; Weis v. [New Orleans] Board of Trade, 125 La. 1010, 52 So. 130; Bloomfield v. Thompson, 133 La. [209] 211, 62 So. 634.”

In the instant plaintiff concedes that the record reflects that defendant Barron cut, felled and removed and manufactured into lumber at his mill 11,249 feet of rosemary pine and 13,209 of hardwood; that the converted or manufactured value of the rosemary pine so removed is $65 per M, or $735.17, and that of the hardwood at $60 per M, or $792.54, making a total converted value of $1,527.71, the amount which plaintiff contends he is entitled to be paid.

In his first alternative plea plaintiff contends that if the cost of manufacturing is deducted as a result of legal and not moral bad faith he is entitled to be paid the sum of $1,073.04 instead of the amount awarded by the court below.

In his second alternative plea plaintiff concedes that if the removal of the timber was without legal or moral bad faith-then he is entitled to recover its stumpage value, or the sum of $522.32.

Thus it is readily seen from the record itself, the allegations of the petition notwithstanding, that plaintiff has inflated his claim, and that under the proof adduced by the parties the value thereof could not support the requirement that the amount in dispute at the time the case was submitted to the district court exceed the sum of $2,000 so as to vest appellate jurisdiction in this court.

Accordingly, for the reasons assigned, it is ordered that this appeal be transferred to the Court of Appeal, Second Circuit, pursuant to the provisions of LSA-R.S. 13:4441 and 13:4442, the records to be filed in such court by appellants within 30 days from the date on which this decree shall become final; otherwise the appeal shall stand dismissed. All costs of the appeal to this Court shall be paid by appellant; all other costs to await final disposition of the cause.

HAMLIN, J. ad hoc, absent.

      . The South Half of the Northeast Quarter of the Northwest Quarter (S% of NE14 of NWld) and the Southeast Quarter of the Northwest Quarter (SE% of NW14), Section Thirty-Nine (39), Township Eour (4) North, Range Two (2) East, Rapides Parish, Louisiana.

      . James Barron, Glen Denny, Ed Berlin and Guy Berlin.


text:
    231 La. 1082
    Cline THOMPSON v. Willie L. BAMBURG et al.
    No. 43147.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    John Makar, Natchitoches, for plaintiff-appellant.
    Colvin & Hunter, Mansfield, for defendants-appellees.
   McCALEB, Justice.

This suit, arising out of a gravel contract and lease, was instituted by the lessee against Willie L. Bamburg, lessor, and M. L. Walden and C. E. Williams, doing business as Walden & Williams. The last named defendants filed an exception of no cause or right of action to plaintiff’s petition and this exception was sustained, judgment being rendered on December 20, 1954, dismissing the suit entirely as to Walden and Williams.

On December 5, 1955, judgment wa^ read and signed awarding plaintiff $300 against the remaining defendant, Willie L. Bamburg, and also providing that “It is further ordered, adjudged and decreed that the demands of plaintiff against all defendants for other damages be dismissed as previously ordered”. On this same date plaintiff-appellant moved and obtained an order for a devolutive appeal returnable to this. ■Court on February 3, 1956. The appeal bond was fixed at $150.

On January 30, 1956, appellant filed the required appeal bond but failed to file the transcript in this Court by the return date ■or within the 3-day grace period following the return date.

On June 18, 1956, in open court, another ■order for a devolutive appeal was obtained by appellant, returnable to this Court August 15, 1956. The appeal bond was also fixed at $150.

The record was lodged in this Court on August 13, 1956 but appellant has never furnished the appeal bond in accordance with the order of appeal.

On December 13, 1956, Walden and Williams (hereinafter called “appellees”) filed a motion to dismiss the appeal insofar as it affects them, contending (1) that the first appeal taken by appellant was presumptively abandoned since the transcript was not filed on or before the return date or within the 3-day grace period following the return date and that the second appeal should be dismissed since no bond was ever filed to perfect this appeal; (2) that the judgment rendered and signed on December 20, 1954, sustaining the exception of no cause or right of action and dismissing the suit insofar as it affected appellees, was a final definitive judgment as to them and that, since no appeal bond was filed within one year of the effective date of this judgment, the appeal was not completed within the time prescribed by law; (3) that neither of the two appeals taken designates which of the two judgments was appealed from, nor does the bond filed in this proceeding designate which of the two definitive judgments was appealed from and (4) that, despite the fact that both orders of appeal were taken at a term of court different from that in which the judgment of December 20, 1954 was rendered and signed, no citation of appeal was prayed for or ever issued or served on appellees.

On December 21, 1956, defendant Bamburg (hereinafter called “appellee”) also filed a motion to dismiss the appeal insofar as it affects him, urging the first and third grounds set forth above.

Appellant opposes the motions to dismiss on the following grounds, to wit: that a motion to dismiss an appeal must be filed within 3 days of the return date of the appeal; that the judgment of December 20, 1954 was an interlocutory judgment from which no appeal will lie unless irreparable injury will result; that appellant appealed in open court at the same term that final judgment was rendered and citation of ap-pellees was therefore not required and that, even if citation had been required, such citation was waived since appellees, in moving to dismiss the appeal for want of citation, first urged some other ground for dismissing the appeal and, finally, that appel-lees were guilty of laches in not moving to dismiss until after the case had been placed on the preference docket.

Appellant’s arguments are not impressive. At the outset, it is patent that the judgment rendered and signed on December 20, 1954, which upheld appellees’ exception of no cause or right of action and dismissed the suit as to them, was a final definitive judgment insofar as they are concerned, deciding at it did all the points in controversy between them and appellant. Article 539 of the Code of Practice; Nicholls v. Maddox, 52 La.Ann. 496, 26 So. 994; James v. St. Charles Hotel Co., 145 La. 1004, 83 So. 222 and River & Rails Terminals v. Louisiana Ry. & Nav. Co., 157 La. 1085, 103 So. 331.

Appellant’s contention that the motions to dismiss should not be considered as they were not filed within 3 days of the return date of the appeal has no merit for the reason that this requirement of Article 886 of the Code of Practice is inapplicable when the defects and errors complained of are jurisdictional and strike at the foundation of the right of appeal. Compare Elliot v. Heard, 217 La. 218, 46 So.2d 249 and cases there cited.

In the instant case, the motions to dismiss are based, in part at' least, on defects which are jurisdictional and which do strike at the foundation of the right of appeal. For example, both motions urge the dismissal of the appeal on the ground that the first appeal was conclusively presumed to be abandoned since the transcript was not filed on or before the return date or within the 3-day grace period following the return date and that no bond was ever filed to perfect the second appeal. Appellant’s failure to timely file the transcript clearly strikes at the foundation of the right of appeal and it has been specifically held that, for a failure to timely file the transcript, the motion to dismiss can be filed at any time after the filing of the transcript. Hudson v. Garrett, 47 La.Ann. 1534, 18 So. 510; Mutual Loan & Bldg. Ass’n v. First African Baptist Church, 48 La.Ann. 1458, 21 So. 24. Furthermore, the failure to perfect the second order of appeal by filing the appeal bond within a year from the date of the rendition of judgment is obviously jurisdictional as the appellate court does not acquire jurisdiction of an appeal which has not been perfected by the filing of a bond within the time prescribed by law. Arnold v. Arnold, 217 La. 362, 46 So.2d 298 and cases there cited.

The.appeal must be dismissed as to ap-pellees Walden and Williams for a number of reasons but it is only necessary to mention one — that is — because an appeal bond was not filed until January 30, 1956, or more then one year after the judgment of December 20, 1954. Article 593 of the Code of Practice; Lafayette v. Farr, 162 La. 385, 110 So. 624; Succession of Dahm, 166 La. 774, 117 So. 826; Mount Olive Baptist Church v. New Zion Baptist Church, 198 La. 896, 5 So.2d 144; Dickerson v. Hudson, 201 La. 915, 10 So.2d 700 and Fisher v. International Brotherhood of Electrical Workers, 218 La. 243, 48 So.2d 911.

It is also manifest that the appeal cannot stand as to appellee Bamburg. Appellant obtained the first order for a devol-utive appeal on December 5, 1955 and this appeal was perfected (as to appellee Bamburg) on January 30, 1956 when appellant filed the required appeal bond. In view of the fact that this appeal was perfected, appellant, in failing to timely file the transcript, lost the right of appeal itself and it could not thereafter be renewed. Article 594 of the Code of Practice; Edenborn v. Kirkland, 136 La. 1020, 68 So. 111; Braud v. Huth, 154 La. 1054, 98 So. 664; Dupierris v. Sparicia, 164 La. 290, 113 So. 851; Paramount Wood Products Co. v. Colonial Fire Underwriters, 180 La. 886, 158 So. 7; Hamilton v. Dabbs, 216 La. 867, 44 So.2d 896 and Hyde v. Sims, 222 La. 567, 62 So.2d 837. In any event, the second appeal was never perfected since no appeal bond was ever filed pursuant to the order of appeal obtained June 18, 1956.

The appeal is dismissed.

      . The case of Reeves v. Barbe, 200 La. 1073, 9 So.2d 426, cited by appellant, does not support his contention that the judgment of December 20, 1954 was interlocutory and is clearly distinguishable from the case at bar. There, an exception of no cause of action was sustained only as to a part of plaintiffs’ demands against a single defendant and the Court properly held such judgment to be interlocutory rather than final. In the instant case the judgment sustaining appellees’ exception of no cause or right of action dismissed appellant’s suit in toto as far as appellees are concerned and was a final appealable judgment as to them.


text:
    231 La. 1090
    Mrs. Margaret McNEILL v. Charles F. ELCHINGER.
    No. 42534.
    Supreme Court of Louisiana.
    Feb. 25, 1957.

      Cabral & Cabral, Harry R. Cabral, Trial Atty., New Orleans, for plaintiff-, appellant.
    John Pat. Little, Edward M. Dussom, Jr., Guste, Barnett & Little, New Orleans, for defendant-appellee.
   McCALEB, Justice.

Plaintiff is suing her former husband for $4,041.24, composed in part of damages allegedly sustained by her as a consequence of his asserted breach of a community property settlement. The parties were legally separated by judgment signed on February 24, 1947 and, on March 8, 1947 a notarial act was executed under which the community estate formerly existing between them was partitioned and settled. In this agreement, plaintiff bound herself for the payment of any and all obligations incurred by her from and after November 15, 1946 and defendant obligated himself to pay all debts incurred in the operation of Koretke Brass & Manufacturing Co. Inc., a business owned and managed by him.

On March 15, 1947, conformably with his previous custom, defendant filed separate individual federal income tax returns covering the calendar year 1946 and payment of the taxes due on both his and his wife’s return was made by carrying forward overpayments from 1945 and estimates made and paid for the year 1946, during which time the community was still in existence. Subsequently, the federal govenment reviewed the returns and entered a notice of deficiency in the tax paid by each party in the amount of $1,281.36. Defendant compromised his personal deficiency with the government but plaintiff made no effort to have the matter of her liability adjusted and, as a result, the Revenue Department filed a lien for $1,539.74 against real estate owned by her in the city of New Orleans.

Contending that defendant is responsible for this tax liability, plaintiff filed this suit in which she claims, in addition to the $1,539.74 federal tax claim, $1.50 for costs of filing the lien, $500 for attorney’s fees, $1,000 for personal damages and $1,000 for damage to her property.

After a trial there was judgment dismissing plaintiff’s suit and she prosecuted an appeal to this Court.

It is manifest that we are without jurisdiction of the appeal as the most that plaintiff had any reasonable hope to recover was $1,539.74 plus $1.50 liability for recordation of the tax lien. It has been many times decided that, in determining our appellate jurisdiction when it is invoiced on the ground that more than $2,000 is in controversy (see Section 10 of Article 7 of the Constitution), this Court will not accept inflated claims for damages for harassment, inconvenience and the like, but will value them realistically in the light of the jurisprudence. And, by the same process of reasoning, we have declared that claims having no basis for recovery under Louisiana law fall within the same category as an inflated claim for damages and cannot be regarded as part of the amount in dispute. See Brantley v. Tugwell, 223 La. 763, 66 So.2d 800; Griffin v. Bank of Abbeville & Trust Company, 228 La. 857, 84 So.2d 437 and Des Ormeaux v. Dufour, 229 La. 287, 85 So.2d 518 and the many authorities there cited.

In this case three items totalling $2,500 are not recoverable under our law. One of these is for $500 attorney’s fees which are not actionable, in the absence of a statute or contract, save as damages for the dissolution of a conservatory writ. Brantley v. Tugwell, supra; Griffin v. Bank of Abbeville & Trust Co., supra, and Tanner v. Tanner, 229 La. 399, 86 So.2d 80.

The item of $1,000 for plaintiff’s personal damages is founded on the allegation that defendant’s failure to pay the tax lien has caused her worry, embarrassment and inconvenience, particularly since she was pregnant at the time. We know of no law making such a claim cognizable.

In the same category is the other $1,000 item for damages to plaintiff’s property, which is based on the theory that the lien filed by the Department of Internal Revenue has cast a cloud on the title of the real estate and made it difficult for plaintiff to obtain a loan thereon. Aside from the fact that the alleged damages are highly speculative, we do not perceive why the action taken by the federal government would render defendant liable to plaintiff for such damages even if it is ultimately determined that he should reimburse her for the tax liability.

It is ordered that this case be transferred to the Court of Appeal for the Parish of Orleans, the transfer to be made within 30 days after this decree has become final; otherwise, the appeal is to be dismissed. Plaintiff is to pay the costs of appeal to this court and the costs of transferring the case to the Court of Appeal.


text:
    231 La. 1097
    Shedrick JOHNSON v. Malvina HARPER.
    No. 41490.
    Supreme Court of Louisiana.
    Feb. 25, 1957.
    William J. Daly, New Orleans, for plaintiff-appellant.
    Charles E. Cabibi, New Orleans, for defendant-appellee.
   SIMON, Justice.

Plaintiff-appellant, ’ Shedrick Johnson, prior to the fixing or hearing of this case on its merits in this Court, filed a motion to remand on the ground of newly discovered evidence, which he alleges is material to the issues of the suit.

By this suit plaintiff seeks to be declared the owner of certain immovable property which, he alleges, was for purposes of convenience placed in the name of defendant, with whom he was allegedly living in open concubinage. The purported authentic act of transfer is attacked as a simulation and forms a part of the record.

In answer, defendant denies the relationship of concubinage as charged and alleges ownership of the property in dispute by virtue of an authentic notarial act of sale which forms the basis of plaintiff’s alleged simulation.

Under the law and under the well-established jurisprudence of this state, the motion to remand is premature. Code of Practice, Article 906; Louisiana Ice Mfg. Co. v. City of New Orleans, 1891, 43 La. Ann. 217, 9 So. 21; L. A. Frey & Sons, Inc., v. Town of Slidell, 1927, 173 La. 397, 137 So. 193; Mayer v. Barrow, 1935, 182 La. 983, 162 So. 748; Alexander v. Jackson, 1940, 195 La. 446, 197 So. 137; Savin v. Savin, 216 La..71, 43 So.2d 221.

'Article 906 of the Code of Practice provides that' “ * * * if the court shall think it not possible to pronounce definitively on the cause, in the state in which it is, either because the parties have failed to adduce the necessary testimony, or because the inferior court refuse to receive it, or otherwise, it may, according to circumstances, remand the cause to the lower court, with instructions as to the testimony which it shall receive, to the end that it may decide according to law.” (Italics ours.)

In the instant case we are unable to determine whether a definitive pronouncement can be made at this time in the cause in the state in which it is prior to its submission on the merits.

In the case of Louisiana Ice Mfg. Co. v. City of New Orleans, supra, [43 La.Ann. 217, 9 So. 22] in considering a motion to remand under the authority of Article 906 of the Code of Practice we said, “We consider it a condition precedent to the exercise of such authority that we should first determine that it is ‘not possible to pronounce definitively on the cause in the state in which it is,’ — meaning, of course, by ‘definitively’ a judgment according to conscience and the requirements of justice. It is plain that we cannot determine this question without first examining into the merits of the cause * * This principle of law has been recognized in each of the other cases cited above.

For the reasons assigned, it is ordered that the application to remand be, at the present time, denied, and that the subject matter therein contained be referred to the merits of the cause, to be considered and determined when the case is heard and submitted on the merits.

HAMLIN, J., ad hoc, recused.


author: HAWTHORNE, Justice.

text:
    232 La. 1
    PARISH OF LAFAYETTE THROUGH THE POLICE JURY OF LAFAYETTE PARISH v. Pierre HERNANDEZ.
    No. 42807.
    Supreme Court of Louisiana.
    Feb. 25, 1957.

      Landry, Watkins, Cousin & Landry, New Iberia, for defendant-appellant.
    Bertrand DeBlanc, Dugas, Bean, Bertrand & Smith, Lafayette, for plaintiff-appellee.
   HAWTHORNE, Justice.

This is an expropriation suit instituted by the Police Jury of Lafayette Parish to acquire for a drainage canal a strip of land approximately 400 feet wide extending across the property of the defendant from its northwestern boundary to the Vermilion River on the southeast. The land sought to be expropriated is 20.23 acres out of a tract of about 134 acres owned by the defendant situated on the southern fringe of the City of Lafayette. After trial on the merits there was judgment in favor of the Lafayette Parish Police Jury awarding it full title to the 20.23-acre strip sought to be expropriated upon payment to the landowner,_ Pierre Hernandez, of $40,460.00 for the land taken, or $2000 per acre, and an additional $12,500 as severance or consequential damages to the defendant’s remaining land. From this judgment the defendant Hernandez has appealed to this court.

Appellant first argues that the lower court erred in not dismissing this suit on his exception of prematurity.

After the approval of a bond issue by the qualified electors of the Parish of Lafayette for the purpose of financing a drainage program, representatives of the police jury met with the appellant to discuss the acquisition of the property here expropriated. Following this meeting a written offer to purchase the property for $14,805, together with a check for that amount, was tendered to the appellant by the police jury, which was refused. The amount offered as just compensation was predicated on a report of a committee appointed by the police jury to examine and appraise appellant’s property. After appellant refused to accept the offer so made, there were no further negotiations between these parties, and in due course the present suit was instituted.

It is appellant’s position that the offer and the efforts of the police jury to acquire this tract of land without suit were not made in good faith, and that its offer was nothing more than a pretense made to comply with the requirements of the laws governing expropriation. He cites the case of Calcasieu & Southern Ry. Co. v. Witte, 224 La. 1091, 71 So.2d 854, which holds that under Article 2627 of the Civil Code and R.S. 19:2 a bona fide attempt must be made to negotiate with the landowner before an expropriation suit is filed. In the cited case the plaintiff, which was seeking to expropriate the land of the defendant, admitted that there had been no negotiations with the defendant before the filing of that suit, and that no attempt had been made to purchase or secure the right-of-way sought to be expropriated. This is not true in the instant case.

Appellant here says that the offer of the police jury was not a good faith effort to purchase this property because the committee that made the appraisal upon which the offer was predicated was composed of persons who were interested in the drainage project, anxious to cooperate with the police jury, and inexperienced in real estate transactions in the vicinity. Appellant further argues that the police jury had caused his property to be appraised for the same purpose by other parties some two years earlier, and that that appraisal was for a much larger amount.

There is nothing in the record showing that the committee appointed by the police jury acted unfairly or wrongly, or that the police jury selected the personnel of this committee for the purpose of taking some unfair advantage of the appellant. The committee was composed of a lawyer, a city judge, an employee of the police jury, and a farmer, and their characters are unquestioned. Certainly the appellant has not established bad faith to our satisfaction, and consequently we think the trial judge properly overruled the exception of prematurity.

The police jury has not appealed or answered the appeal, and therefore on the merits we have only the question of whether the amounts of the awards should be increased.

Appellant urges that the award of $40,460 for the 20.23-acre strip expropriated should be increased to $45,517.50, or, in other words, that the award should be increased from $2000 an acre to $2250 an acre.

Appellant’s tract of land is situated on the Vermilion River and Coulee Mine. It is 1.3 miles from Southwestern Louisiana Institute and 1.02 miles from a shopping center containing stores, a post office, and a branch bank. The property may be entered from South College Road, a hard-surfaced road on which city bus service is available, and also from the Abbeville Highway by way of Doucet Road, a gravel road. City water, electricity, gas, and sewerage are available to the entire tract. The land is generally high and well drained and has an artificial lake and many trees. Adjoining it on the east is Bendel Gardens, an exclusive subdivision. On the southeast it is adjoined by the City of Lafayette Sewage Treatment Plant, the buildings of which are brick and masonry. On the southern boundary is the Vermilion River, upon which the property fronts for nearly a half mile. The lands to the west and northwest of the property are undeveloped. On the east is found the Graham Subdivision, which is in the process of development. Somewhat to the north and a little to the- east is Minglewood Subdivision. Before the expropriation proceedings appellant’s property was used for farming and cattle-grazing.

In Louisiana Power & Light Co. v. Simmons, 229 La. 165, 85 So.2d 251, 253, this court said:

“Under the jurisprudence of this court the measure of compensation to be awarded in expropriation proceedings is generally the market value of the property — that is, the price paid in a voluntary sale between a willing seller and purchaser. Furthermore, in determining this market value, sales of similar property in the vicinity are most important. Housing Authority of New Orleans v. Boudwine, 224 La. 988, 71 So.2d 541; State, Through Department of Highways v. Hebert, 227 La. Ill, 78 So.2d 528; Caddo Parish School Board v. Bland, 228 La. 393, 82 So.2d 687. It is equally well settled that in suits of this kind the most profitable use to which the land can be put by reason of its location, topography, and adaptability will be considered as bearing upon its market value. Louisville & N. R. Co. v. R. E. E. De Montluzin Co., 166 La. 211, 116 So. 854; City of Shreveport v. Abe Meyer Corporation, 219 La. 128, 52 So.2d 445, and numerous authorities therein cited.”

It is conceded that the most profitable use to which this land could be put by reason of its location, topography, and adaptability is that of a subdivision, and this fact should be considered in determining its market value.

In this case no acts of sale of similar property in the vicinity were actually offered in evidence. However, the expert witnesses, particularly defendant’s, gave testimony about such sales without objection. According to the testimony of these experts, we find that sales of similar property in the vicinity of the property here expropriated had been made as follows:

In 1950 a beautiful estate of approximately 176 acres adjoining this tract on the east was sold for about $1700 per acre and at the time of the trial had been deveb oped into Bendel Gardens, an exclusive residential subdivision. In 1952 approximately 20 acres located to the north of this property were sold for $1850 per acre. In 1954 a 10-acre tract adjoining Holden Heights Subdivision northwest of this land was sold for $2500 an acre. This is conceded to be a top price and was paid because the land there purchased adjoined Holden Heights and was needed to enlarge that subdivision.

Moreover, two of plaintiff’s expert witnesses testified that the property here expropriated had a value of $2000 per acre, and one of its experts placed a value on it of from $1750 to $2000 per acre. Of the testimony of these witnesses the most impressive to us is that of Dwight Andrus, who had developed many of the neighborhood subdivisions. Mr. Andrus valued the Hernandez tract at $2000 per acre. Defendant’s expert witnesses also valued the property at from $2000 to $2500 per acre, with the exception of one who placed a value on it of $3000 per acre.

The trial judge personally inspected and visited the Hernandez property, and after considering all of the testimony of the witnesses and the evidence adduced he concluded that $2000 per acre represented the actual market value of the property. After considering the sales of similar property in the vicinity of the property here sought to be expropriated, and giving weight to the testimony of the experts in which, after all, there is very little variance as to the value of the land, we do not think that there is any justification for increasing the award made by the trial judge for the property expropriated, and consequently it will be affirmed.

Appellant also seeks an increase in the amount awarded as severance or consequential damages to his remaining property. The trial judge allowed $12,500 for these damages, and appellant claims a sum in excess of $80,000.

It is well settled that when property is expropriated the owner ■ is entitled to compensation for damages to his remaining land' caused by the taking. Louisiana Highway Commission v. Guidry, 176 La. 389, 146 So. 1; Texas Pipe Line Co. v. Barbe, 229 La. 191, 85 So.2d 260. The measure of such damage is the difference between the value of the property immediately before and its value immediately after the expropriation. Harrison v. Louisiana Highway Commission, 191 La. 839, 186 So. 354; Texas Pipe Line Co. v. Barbe, supra, and authorities there, cited. However, this court has often said that mere consequential injuries to the owner arising from discomfort, disturbance, injury to business, etc., are damnum absque in-juria. American Tel. & Tel. Co. of Louisiana v. Maguire, 219 La. 740, 54 So.2d 4, Note 2; Harrison v. Louisiana Highway Commission, supra. We have also said that the consequential or severance damages claimed by the landowner must not be anticipated damages, or too remote and speculative. Louisiana Highway Commission v. Lasseigne, 177 La. 440, 148 So. 672; State of Louisiana Through Department of Highways v. Glassell, 226 La. 988, 77 So.2d 881.

The drainage canal to be dug within the area of the 400-foot strip here expropriated will have an average bottom width of 30 feet and top width of 110 feet, and is to be approximately 30 feet deep. On each side of the canal there will be a 40-foot berm, or cleared space, between the edge of the canal and the waste bank. The waste or spoil which will be deposited on the remaining 105 feet on each side of the canal will form the waste banks. This canal will cross appellant’s tract of approximately 134 acres from northwest to southeast, severing it into two parcels of - about 32 acres on the east and about 81 acres on the west.

It is appellant’s contention, and most of the testimony of his expert witnesses is directed at this point, that his tract of land will be damaged because of the unsightly appearance of the canal, the anticipated untidiness of its banks, the danger that small children will drown in its waters, and the loss of frontage on the Vermilion River; also, because his land will be divided into two tracts, and because the western area of about 81 acres will be cut off from direct access to South College Road and deprived of water, gas, and sewerage facilities.

Appellant, in his efforts to establish the measure of damages by showing the difference in the value of the property immediately before and immediately after the expropriation, called numerous experts. These experts gave opinions of the value of the tract before the expropriation ranging from $2000 to $3000 per acre. All agreed that the property would depreciate in value because of the factors set out above.

As to the 32-acre tract, one of these experts said that the value would depreciate 40 per cent ISO to 200 feet from the canal, with a depreciation of 20 per cent for the rest of this tract. Another was of the opinion that this tract would suffer an overall reduction in value of 20 per cent. Still another testified that this tract would depreciate 50 per cent of its value within 200 feet of the canal and 25 per cent in the remaining area.

With reference to the 81-acre tract, two of the experts said that the entire tract would suffer an over-all depreciation of 50 per cent. Another said that this tract would depreciate 50 per cent within 200 feet of the canal and 40 per cent in the remaining area.

Considering the factors given by these experts which in their opinions would cause the remaining property to depreciate in value, we think that the percentages of valuation used by them are much too high. Conceding that these factors damage the remaining property, we do' not think there is any justification shown in the testimony of these experts for the high percentages used by each. Damages such as these must be proven with some degree of cer-tamty, and in the instant case we cannot determine with any degree of certainty, from the nature of the testimony and evidence adduced here, what these damages are. Moreover, the significance placed by the experts on the various factors causing the depreciation is entirely too great. Some of them may actually exist while others, as the record shows, are somewhat of a speculative nature. Under these circumstances we do not think that appellant has advanced any legal or valid reason why we should increase the award for damages to his remaining property, and it will therefore be affirmed.

For the reasons assigned the judgment appealed from is affirmed.

FOURNET, C. J., absent.


text:
    232 La. 13
    STATE of Louisiana v. Vincent DI VINCENTI.
    No. 43168.
    Supreme Court of Louisiana.
    Jan. 21, 1957.
    Rehearing Denied Feb. 25, 1957.

      Racivitch, Johnson, Wegmann & Moule-doux, Guy Johnson, New Orleans, for appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Phil Trice, Asst. Dist. Atty., Louis Fenner Claiborne, Asst. Dist. Atty., for appellee.
   FOURNET, Chief Justice.

Vincent DiVincenti having been convicted and sentenced on a bill of information charging him with gambling in violation of RS 14:90, in that he operated a racehorse handbook, prosecutes this appeal, relying for a reversal thereof on a number of alleged errors committed during the course of the trial that are presented for review in eight bills.

The first bill was reserved when the trial judge denied the motion for a continuance filed by counsel for the accused on the morning of April 16, 1956, predicated on the contentions that (1) defense counsel was scheduled to try an adoption matter in the juvenile court that same morning, and (2) accused was served with notice of trial less than 48 hours prior thereto and, therefore, was not only given insufficient time in which to prepare his defense, but was also unable to secure subpoenas summoning witnesses.

“The granting or refusing of any continuance is within the sound discretion of the trial judge; provided, that any arbitrary or unreasonable abuse of such discretion may be reviewed by the proper appellate tribunal on appeal. * * * ” RS 15:320. See, also, State v. Wilson, 33 La.Ann. 261; State v. Flores, 169 La. 22, 124 So. 132; State v. Henry, 196 La. 217, 198 So. 910; State v. Laborde, 214 La. 644, 38 So.2d 371; State v. Prejean, 216 La. 1072, 45 So.2d 627; and State v. Thompson, 228 La. 342, 82 So.2d 33.

The facts of the case as stated by the trial judge in his Per Curiam clearly disclose this bill is without merit. Defendant, who was free on bond, was arraigned on March 19, 1956, in the presence of his counsel and pleaded not guilty. His case was fixed for hearing on Monday, April 16, 1956, and notice thereof was served on his attorney on the following day, on his bondsman on April 5th, and on his mother on April 14, 1956, at 3411 Piedmont Drive, the address given in the 'bail bond. The deputy sheriff making the service testified he had been unable to serve the defendant personally because he had secured no response to his knocks at this address although he had gone there on three previous occasions. Furthermore, in accordance with the court’s announcement at the time the motion was denied, the defendant, at the termination of the state’s case, reurged the motion and was then granted additional time, that is, until April 30, 1956, in which to produce his witnesses. On that date counsel presented all witnesses and evidence on defendant’s behalf. Under these circumstances there has clearly been no abuse of discretion by the trial judge in this instance. Moreover, it cannot be said defendant’s cause was prejudiced in any manner 'by this ruling.

Bill of Exceptions No. 2 was reserved when the trial judge, over defendant’s objection, permitted the testimony of one of the arresting officers with respect to the tenor and substance of two telephone calls coming into the raided establishment after the arrest, it being defense contention that such evidence, heard only by the officer who was testifying, was hearsay and, as such, inadmissible.

The trial judge, after quoting the testimony objected to in detail in his per curiam —showing the first call gave information with respect to the result of the third race at the Fair Grounds while the other caller, addressing the defendant under the name of “Big Eye,” one of the aliases by which he was known in gambling circles, placed several bets which the officer recorded on a piece of paper and turned in as evidence—pointed out that for all practical purposes this identical issue has already been decided adversely to the defendant in the recent case of State v. Compagno, 230 La. 657, 89 So.2d 158, 160, wherein we said: “We agree with the trial judge that this testimony related to a matter constituting a part of the res ges-tae; and that it was further relevant and admissible for the purpose of connecting this defendant with the gambling operation and in proving the element of intent.”

However, defense counsel strenuously objects in brief to this evidence being classified as “res gestae,” and, as such admissible under an exception to the hearsay rule. It is counsel’s contention that the “test of admissibility of res gestae is the spontaniety of the utterance or occurrence,” and the events established by this testimony occurred after the commission of the crime and also after the “accused was in custodia legis,” the time factor being given no consideration by the trial judge.

The test thus ascribed for the admissibility of hearsay evidence as a part of the res gestae is incorrect. As stated in Wharton on Criminal Evidence, “In some states (Louisiana is one of these states), res gestae is given an even broader definition to include not only spontaneous utterances, and declarations made before and after the commission of the crime, but also to include real or demonstrative evidence relevant to the crime; and to include testimony, offered at the trial, of witnesses and police officers as to what they had heard or observed before, during, or after the commission of the crime; all that occurred at the time and place of the crime, or immediately before or after the crime if causally related thereto * * (Parenthesis ours.) Vol. 1, page 624, Sections 279, etc. See, also, State v. Schmidt, 163 La. 512, 112 So. 400; State v. Bradford, 164 La. 423, 114 So. 83; State v. Dale, 200 La. 19, 7 So.2d 371; State v. Walker, 204 La. 523, 15 So.2d 874; 20 Am.Jur. 558, Section 667; and 1 Conrad’s Modern Trial Evidence 303, Sections 391, etc.

The third Bill of Exceptions, also clearly without merit, was reserved when the trial judge accepted Officer Hugh Hearty as an expert on the operation of racehorse handbooks over defendant’s objection which was ostensibly based on the fact that the officer had never owned, operated, or worked in a handbook, and had never actually been inside of one except in his official capacity as a police officer.

The trial judge points out in his' Per Curiam that as a predicate to the admission of the testimony of Officer- Hearty it was not only established that he had been with the police department for 14 years (5 with the vice squad), during which time he had participated in many handbook raids, had attended police school for instruction in this respect and had actually been an instructor on the subject, 'but that he had been “qualified and accepted as an expert on -the operation of handbooks and the recording of handbook bets, some 15 or 20 times, in all of the City and State courts in 'the Parish of Orleans, as well as in the court in which he was then testifying; that he had never been rejected as an expert on race horse handbooks in any court.”- See, Article 466 of the Louisiana Code of Criminal Procedure, RS 15:466; State v. Burkhalter, 211 La. 342, 30 So.2d 112; State v. Carter, 217 La. 547, 46 So.2d 897; State v. Cage, 224 La. 65, 68 So.2d 759; State v. Nicolosi, 228 La. 65, 81 So.2d 771; and the recent case of State v. Compagno, 230 La. 657, 89 So.2d 158, where this identical issue was decided adversely to the contention of the accused.

Bill of Exceptions No. 4 was reserved while defense counsel was examining Officer Hearty who, after testifying he could not tell as an expert the meaning of the figure “6” found on a piece of paper in the possession of the accused at the time of the raid since there was nothing following the figure to designate what significance it might have, was asked for his "personal” opinion on the matter. This question was npt permitted upon objection of counsel for the state.

It is obvious that any answer given by Officer Hearty as to the meaning and effect of this figure “6” written by itself on this scrap of paper would have been purely conjectural, and his personal opinion was, therefore, properly excluded. RS 15:465; State v. Snowden, 198 La. 1076, 5 So.2d 355; 20 Am.Jur. 650, Section 780; and Conrad’s Work on Modern Trial Evidence, Vol. 1, page 577, Section 692. As stated in the latter authority, “An expert’s opinion must not be based on mere guess or conjecture but must be based upon facts and data, which must measure up to the legal requirements of substantial and probative evidence.”

The fifth bill was reserved when the defense sought to elicit from two witnesses, employed in the revenue and treasury departments of the Federal government, information as to whether they had (1) authorized the arrest of the accused, (2) ordered his release later that same day along with others taken into custody at the same time, (3) were investigating persons other than the accused, these persons being among those arrested with the accused at .the time of the raid; (4) verbally accused another party of the actual operation of this handbook, (5) had in their custody certain (unnamed and undesignated) evidence; and (6) had exhibited to accused and his counsel certain (also unnamed and undesignated) evidence. The trial judge not only ruled that all of the evidence and/or information sought by counsel was inadmissible in the instant case as irrelevant and immaterial to the crime with which the accused was charged, but also that the witnesses were protected from answering under regulations of the Treasury Department of the United States which prohibited them from testifying to facts coming to their knowledge in their official capacities without express authority from the Commissioner.

Pretermitting the question of whether these witnesses were in fact privileged not to testify to any and all facts coming within their knowledge in their official capacities, under the jurisprudence the trial judge has the discretion of determining what is and what is not relevant and material evidence, and his ruling in this respect will not be disturbed in the absence of obvious error. State v. Bouvy, 124 La. 1054, 50 So. 849; State v. Walker, 204 La. 523, 15 So.2d 874. It was not shown, so far as the bill reflects, that these witnesses were present at the time of the raid, had any personal knowledge of matters connected therewith, or that the testimony sought to be elicited from them had anything to do with the crime committed and the arrest of the accused therefor. The questions propounded were, by their very tenor, in the nature of a “fishing” expedition. Under these circumstances we cannot say the trial judge’s ruling was erroneous.

Bills of Exceptions Nos. 6 and 7 (the former reserved when the judge refused a new trial and the latter when he denied a motion in arrest of judgment) are considered together inasmuch as they are predicated on identical contentions, that is, that the verdict of guilty is contrary to the law and the evidence since it was not shown by any affirmative act that the accused intentionally committed the crime of gambling as denounced by RS 14:90.

The Constitution of Louisiana grants to the Supreme Court authority to review criminal cases on questions of law alone. Section 10 of Article VII. It is only where it is contended there is no evidence at all tending to prove the crime charged, or some essential element thereof, that the question posed becomes one of law and we are authorized to review the testimony for the purpose of ascertaining whether there is, in fact, evidence, either direct or circumstantial, that would support the conviction. State v. Seiley, 197 La. 405, 1 So.2d 675; State v. Hardy, 198 La. 1048, 5 So.2d 330; State v. Mattio, 212 La. 284, 31 So.2d 801; State v. Vallery, 214 La. 495, 38 So.2d 148; State v. Roberts, 224 La. 491, 70 So.2d 100; and State v. Turner, 228 La. 202, 81 So.2d 861, and the authorities therein cited. We find there was not only some evidence of guilt in this case, but that there was ample evidence upon which the trial judge’s conclusion that the accused was guilty as charged could have been based, as has been painstakingly pointed out by him in his lengthy Per Cu-riam to this bill wherein he reviews all of the evidence introduced during the trial. There is, consequently, nothing for us to review in connection with this bill.

The final bill is equally without merit. This was reserved when the trial judge, many weeks after the accused had been tried and convicted, refused to reallot this case in accordance with defense motion filed on the morning of July 9, 1956, under the provisions of Act 8 of 1956 creating two new sections of the Criminal District Court for the Parish of Orleans. Section 6 of this act provides: “All cases pending, or hereafter filed, in the Criminal District Court for the Parish of Orleans shall, upon the creation and organization of Section ‘G’ and ‘H’, herein provided for, be equally allotted amongst all of the Sections of said court, including Section ‘G’ and Section ‘H’ herein created. All other provisions relative to allotment, not in conflict herewith, shall remain as now provided by law.” (The emphasis has been supplied.)

Obviously the legislature, by the use of the word “pending” in this statute, could not have intended thereby that cases that had already been tried and a conviction secured were to be included in the reallotment. To hold otherwise would lead to the anomalous situation that a person might be tried twice on the same evidence and for the same offense, which is contrary to our constitutional guarantee that no “person shall be twice put in jeopardy of life or liberty for the same offense, except on his own application for a new trial, or where there is a mistrial, or a motion in arrest of judgment is sustained.” Section 9 of Article I of the Constitution of 1921.

For the reasons assigned, the sentence and conviction are affirmed.

      . Accused was sentenced to pay a fine of • $305 and to serve 3 months in the Parish Prison and, in default of payment of the fine, to serve an additional 60 days.