text:
    No. 2385
    Second Circuit
    SLAGLE-JOHNSON LUMBER COMPANY v. ROBERTS
    (December 1, 1925, Opinion and Decre.)
    (May 7, 1926, Rehearing Refused.)

      {Syllabias by the Editor.)

    1. Louisiana Digest — Builders and Buildings — Par. 12, 29.
    Although Section 2 of Act 139 of 1922 provides that parties having claims for labor • or • materials shall have thirty days after registry of notice by the owner of his acceptance of the work or registry of the architect’s certificate'"of completion, within Which to file their claims, nevertheless, a building is legally completed on the date it is finished and not thirty days after registry of notice of acceptance or certificate of completion provided by the act.
    2. Louisiana Digest — Builders and Buildings — Par. 7; Suretyship — Par. 16, 17.
    The clause in a contract of suretyship under Act 139 of 1922 which provides that eighty-five per cent of the bills for labor and material was to be paid by the owner to the contractor every two weeks upon presentation of itemized statement of labor performed and material delivered on the ground, does not justify the withholding of fifteen per cent of the contract price by the owner in order to comply with his contract with the surety.
    3. Louisiana Digest — Builders and Buildings — Par. 7; Suretyship — Par. 1.
    The purpose of the bond required by Act 139 of 1922 is not to secure the surety, but to secure the owner and parties supplying labor or . material.
    4. Louisiana Digest — Builders and Buildings — Par. 7; Suretyship — Par. 4.
    Act 139 of 1922 does not require the owner to withhold any percentage of the contract price until the time of filing liens has expired and the contracting parties are therefore free to regulate this as they choose.
    ' 5. Louisiana Digest — Builders and Buildings — Par. 7.
    A bond given under Act 139 of 1922 is to guarantee the faithful performance of the contract and the payment of all laborers and material furnished and therefore covers material supplied to the building before the bond was given.

      Appeal from the Fourth Judicial District Court of Louisiana, Parish of Ouachita, Hon. Percy Sandel, Judge.
    Action by Slagle-Johnson Lumber Company, Inc., against N. E. Roberts et al., for materials furnished. There was judgment for plaintiff against the owner and the contractor and in favor of the owner against the surety company, and the defendant surety company alone appealed.
    Judgment affirmed.
    McHenry, Montgomery, Lamkin and Lam-kin, of Monroe, attorneys for plaintiff, appellee.
    Adolph Wolff, of Monroe, attorney for defendant, appellee.
    Theus, Grishman and Davis, of Monroe, attorneys for United States Fidelity and Guaranty Company, warrantor, appellant.
   CARVER, J.

This suit involves the interpretation of a building contract executed under Act 139 of 1922, page, 290, and of the bond given to secure its performance.

The suit is brought by a furnisher of materials against Roberts, the owner, and the A. & M. Construction Company, the contractor, for $1433.11, balance due on furnished materials.

Roberts called United States Fidelity & Guaranty Company, the surety on the bond, in warranty.

Due proof is made that the materials were furnished and used in the building and also that plaintiff preserved its privilege by timely registry of its claim and proper" notice thereof furnishéd the • owner, as required by section 2 of the act

Though taking the bond, Roberts did not record either it or the contract within the time required by section 1 of the act, -and hence, under section 5, is responsible, to plaintiff.

He does not seriously dispute liability, and the real contest - is between him and the surety which pleads that as to fifteen per cent of the contract price, say $1027.50, Roberts anticipated payment, thereby releasing the surety under the last clause of section 5 which reads:

“In all cases where surety has been furnished, the surety shall be entitled to make only the same defenses that the contractor for whom he signed the bond is authorized to make except as to the owner who has made payments in anticipation.”

The bond contains a clause making the contract a part of it. The contract provides as follows:

“Art. IX. It is hereby mutually agreed between the parties hereto that the sum to be paid by the owner to the contractor for said work and materials shall be six thousand eight hundred and fifty dollars to be paid as follows: 85% every two weeks upon presentation of itemized statement of labor performed and material delivered on the ground.
“The final payment shall be made within ten days after the completion of the work included in this contract, and all payments shall be due when certificates for the same are issued.
“If at any time there shall be evidence of any lien or claim for which, if established, the owner of the said premises might become liable, and which is chargeable to the contractor the owner shall have the right to retain out of any payment then due or thereafter to become due, án amount sufficient to completely indemnify him against such lien or claim. Should there prove to be any such claim, after all payments are made, the contractor shall refund to the owner all moneys that the latter may be compelled to pay in discharging any lien on said premises made obligatory in consequence of the contractor’s default.”

The house . was completed on or before March 11, 1924, and final payment was made March 25, 1924.

Counsel for the surety argue that the bond ánd contract having been given under and with reference to the above mentioned act, which provides', in section 2, that parties having claims for labor or materials shall have thirty days after registry of notice by the owner of his acceptance of the work or registry of the architect’s certificate of completion, within which, to file their claims, the contract cannot be regarded as completed or the building as legally completed until thirty days after registry of notice of acceptance or certificate or completion; that it was the owner’s duty to withhold final payment until expiration of this thirty days; and that his making final payment before that time was an anticipation.

We cannot approve this view.

The contract does not provide for the withholding of fifteen per cent of the contract price but for the payment of 85% every two weeks upon presentation of itemized statement of labor performed and material delivered on the ground, which is a very different thing.

Under this clause it might have happened that the entire' contract price would have been consumed in paying for labor and material before completion of the building.

However, there' still remained due the contractor at the time of final settlement the sum of $750.00, which was paid him on March 25, 1924, and the surety would be entitled to release to this extent were the payment really an anticipation.

In our view, though, it was not.

The contract which, as said above, was expressly made a part of the bond, clearly provides that final payment is to be made not ten days after completion of the contract or registry either of notice of acceptance or architict’s certificates of completion, but ten days after completion of the work.

If the parties had intended to make this ten days run from recordation either of the notice or the certificate it is to be presumed that they would have so stated.

The work, as said above, was completed March 11, or before, and final payment was made March 25th.

It is true that this provision of the contract does not protect either the owner or the surety against claims for labor or material and would not do so were the owner to record the notice or the certificate. To afford such protection the provision should be that final payment is to be made thirty-one days after registry of notice or certificate. In this case, if the owner had recorded such notice or certificate on March 11, the plaintiff would have had until April 10 to record its claim and it did record it April 8.

The purpose of the bond is not to secure the surety but to secure the owner and parties supplying labor or material. Nothing in the act requires the owner to withhold any percentage of the contract price until the time for filing liens has expired, and the contracting parties are therefore free to regulate this as they choose. Having done so, the terms agreed on became the law between the parties and obliged the owner to make final payment ten days after completion of the work. In complying with this obligation, he was not, we think, anticipating payment but was making it strictly according to the contract.

The surety’s counsel next argue that some of the material was supplied before the bond was given, and therefore not covered by the bond.

We think this plea without merit.

The bond was to guarantee faithful performance of the contract and the payment of all labor and material furnished. No exception was made of such as were furnished prior to the signing of the bond. The contractor could not make this defence and the surety is restricted to the defences open to him, except as to anticipated payment.

The judgment of the lower court was in favor of the plaintiff and against the defendant Roberts, the Construction Company which was a partnership and the partners composing it, and in favor of Roberts against the surety company. Only the surety appealed. In our opinion the judgment is correct and it is therefore affirmed.


source: Caselaw Access Project

author: WEBB. J.

license: Public Domain

text:
    No. 2178
    Second Circuit
    FIRST NATIONAL BANK v. TURNER
    (April 10, 1926, Opinion and Decree)
    (May 7, 1926, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Bills and Notes,— Par. 207.
    A petition having set forth in full the waiver embodied in a note is equivalent to an allegation that demand, protest and notice had been served under Sections 109 and 110 of Act 64 of 1904.
    2. Louisiana Digest — Bills and Notes— Par. 177.
    An accommodation endorser is bound under Sectons 82 and 109 of Act 64 of 1904 by the waiver of protest and notice embodied in the note.
    3. Louisiana Digest — Bills and Notes-Par. 12, 177.
    A provision in a promissory note that the payee can extend the time of payment without the consent of the endorser is binding upon an accommodation endorser.
    4. Louisiana Digest — Bills and Notes-Par. 234, 238.
    The evidence in a suit against the endorser of a promissory note shows that the holder, a bank, gave the drawer time to pay after maturity but does not establish that the endorsement was not made with the intention that it should have effect or that the endorser was relieved of payment.
    5. Louisiana Digest — Bills ; and Notes— Par. 109, 110, 192..
    The obligation of each endorser on a .. promissory note is to pay in full when demand is made and the payee has the option to sue any party for the full amount.
    Appeal from the Second Judicial District Court of Louisiana, Parish of Webster, Hon. J. E. Reynolds, Judge.
    Action by First National Bank of Min-den against H. C. Turner. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    ■ Drew and Drew, of Benton, attorneys for plaintiff, appellee.
    . Thomas W. Robertson, of Shreveport, attorney for defendant, appellant.
   WEBB. J.

The plaintiff, First National Bank of Minden, Louisiana, payee of a promissory note drawn by the Richie Mercantile Company, Inc., and endorsed by W. D. Richie and H. C. Turner, brings this suit to recover judgment against H. C. Turner.

Plaintiff alleges that it is the holder and owner of the note before maturity for a valuable consideration; that the drawer •had been adjudicated a bankrupt; and that from the proceedings in bankruptcy it had received a small amount which had been credited on the note.

That there is embodied in the note the foLowing stipulation: .

. “The makers, endorsers, guarantors and sureties of this note hereby severally waive presentation for payment, demand,' notice of non-payment and protest, all pleas of division or discussion, and consent that time of payment may be extended without notice, thereof, and in the event of nonpayment at maturity, it is agreed to pay all attorney’s fees incurred in the collection of this note, or any portion thereof, including interest, which fees are hereby fixed at ten per cent on the amount to be collected.”

That after the maturity of the note defendant had acknowledged liability thereon, and had made a payment of five hundred dollars, which had been credited on the note.

The defendant filed an exception of no cause of action, which being referred to the merits defendant answered, pleading defences as will be stated herein.

The judgment of the district court was in favor of the plaintiff and defendant appealed. .

The plaintiff answered the appeal praying that damages be assessed against defendant for a frivolous appeal.

OPINION

While there were pleas and* defences made by defendant, we-shall consider only those which appear to be urged here, which are:

1. That the exception of no cause of action should be sustained, on the ground that the plaintiff failed to allege demand for payment, protest and notice.

2. That the defendant was an accommodation endorser, to the knowledge of the payee, and the waiver of demand, etc., was not binding upon him, and he is released for failure to make demand, etc.

3., That payment of the note was extended without the consent of the defendant, and that defendant was released.

4. That the endorsement of defendant was on the representation of plaintiff, payee, that defendant would not be held liable, and that defendant endorsed the note under protest, duress, and under threats of litigation.

5. That no action had been taken by the plaintiff to collect the note from the maker, or other endorser, and the defendant was released.

Considering the defenses and the evidence relative thereto, in the order named:

(1) The petition having set forth in full the waiver embodied in the note, we are of the opinion that this was equivalent to an allegation that demand, protest and notice had been waived. (Secs. 109, 110, Act No. 64 of 1904; Atkins vs. Dixie Fair, 135 La. 622, 65 South. 762.

(2) The defendant, even though an accommodation endorser, was bounded by the waiver of demand, protest and notice embodied in the note.

“Presentation for payment is dispensed with by * * * waiver * * * express or implied.”

Sec. 82, Act No. 64 of 1904.

“Notice of dishonor may be waived * * * before the time of giving notice, and the waiver may be express or implied.”

Sec. 109, Act No. 64 of 1904.

“A provision in a note that all parties severally waive notice of presentment and protest binds an accommodation endorser as well as all other parties to the note, and the accommodation endorser cannot defend on the ground that he received no notice of presentment and non-payment.” Owensborough Sav. Bk. vs. Haynes, 136 S. W. (Ky.) 1004.

(3) The defendant does not allege that the alleged extension was upon a binding agreement, and the evidence does not show that there was any agreement whatever between the payee and maker to extend the time of payment, and this cannot be inferred from the fact that no suit is shown to have been instituted by the payee against the maker, or from the evidence, which indicates that the payee might have collected from the maker an amount in excess of that received under the proceedings in bankruptcy, had a suit been brought. Besides, the note provided that the payee could extend the time of payment without the consent of the endorser, and we are of the opinion that this was binding upon the defendant. Bonart vs. Rabito, 141 La. 970, 76 South. 166.

(4) The evidence as to the circumstances under which defendant endorsed the note, shows that W. D. Richie, an officer of the Richie Mercantile Company, Inc., and the defendant were endorsers on certain notes made by the Richie Mencantile Company, Inc., and in order to liquidate these notes, and possibly other indebtedness due plaintiff by, or for additional amounts advanced to, the ■ Richie Mercantile Company, Inc., the note sued upon was given, and that the negotiations . leading up to this note being given and the endorsement of defendant was. conducted with defendant by A. F. Dupuy, cashier of the plaintiff hank, with relation to which the defendant says:

“Q. What did he ever say to you about not having to pay the note?
“A. Well, he just told me, said I am not looking to you for the money, all I want you to do is to endorse, and we will give Richie time to pay it.
* * *
“Q. What was the conversation you had with Mr. Dupuy?
“A. I just said, when he come to me to sign, that, I said, Mr. Dupuy, I had rather die and go to hell than have to sign; he said, Mr. Turner, don’t worry, I will wait and give Richie time to pay it; you won’t have to pay and I told him under that I would endorse it.
* * *
“Q. Mr. Turner, from your experience in signing notes, you knew. that if Bill Richie didn’t pay that, you would have it to pay?
“A. Any reasonable man knows that.
“Q. You knew that when you signed the note?
“A. He done that to get me to sign that note.
“Q. Endorsing it means somebody had to pay it?
“A. You are correct.”

The evidence establishes that after the maturity of the note, the defendant agreed to pay and that he had made a payment thereon.

Dupuy, the cashier, says that he does not remember having had any such conversation as related by the defendant.

The evidence shows the defendant tq be a man of mature years and experience, and while he says he has little education, he was fully aware of the legal significance of his endorsement, and we are of the opinion that the statement as to the payee not looking to him for payment, attributed to the cashier of the bank, when considered in connection with the statement that the drawer would be given time in which to pay, and that the note was given to liquidate, in part, at least, other notes held by the payee on which the defendant was an endorser, is not sufficient to establish that the endorsement was not made with the intention that it should have the effect, known by the defendant, to be attributed to it by law.

(5) The law does not provide that suit against one of the parties to a note shall be a condition precedent to an action against another; the obligation of each endorser is to pay in full when the demand is made upon him, and the payee has the option to sue any party to the note for the full amount. (Farmers & Merchants Bank vs. Davis, 144 La. 534, 80 South. 713.)

For the reasons assigned, we are of the opinion that the defenses set up were not established, and the judgment appealed from is affirmed.

REYNOLDS, J. Having rendered the judgment of the lower court, is recused.


author: WEBB, J.

text:
    No. 2317
    Second Circuit
    KNOX v. ALLEN
    (April 10, 1926, Opinion and Decree)
    (Syllabus, by the Editor.)

    1. Louisiana Digest — Pleading—Par. 22.
    The capacity of one who appears in court as representative of another must he alleged, hut where the parent appears claiming damages for injuries sustained by her minor child the capacity of the mother to recover in her representative capacity for the child is sufficiently stated by the words “as tutrix of the minor”.
    2. Louisiana Digest — Damages—Par. 12.
    Punitive damages are not recoverable under the law of this state.
    3. Louisiana Digest — Damages—Par. 41, 89.
    The parent cannot recover damages for mental suffering humiliation and disgrace suffered by her as the result of an assault upon her child.
    Appeal from the Second Judicial District Court of Louisiana,- Parish of Claiborne, Hon. John S. Richardson, Judge.
    Action by Mrs. Edna Knox, individually and as Tutrix against Harvey H. Allen. There were exceptions no cause of action filed which were sustained. Plaintiff appealed.
    Judgment affirmed in regard to plaintiff Mrs. Edna Knox, individually but reversed for Mrs. Edna Knox as Tutrix of her minor child and case remanded to be proceeded with according to law.
    Thomas W. Robertson, of Shreveport, and T. H. McEachern, of Homer, attorneys for plaintiff, appellant.
    McClendon and Seale, of Homer, attorneys for defendant, appellee.
   WEBB, J.

In this case the plaintiff, Mrs. Edna Knox, alleges she is the widow of B. P. Knox and that since the death of her husband she has been appointed tutrix to her minor children issue of her marriage with B. P. Knox. That one of the children is Charles E. Knox, a youth past the age of fourteen years- She further alleges that H. H. Allen is indebted to petitioner in the sum of five thousand dollars, for this:

“That said Allen violently assaulted Charles Edward Knox, son of petitioner, and did beat, strike, assault and wound the said Charles Edward Knox * * * and that said assault was absolutely without justification, unprovoked, wanton, cruel and malicious and ‘that said assault, beating and wounding was cruel and painful in the extreme to the said Charles Edward Knox, son of petitioner, and caused him as well as your petitioner great pain, suffering, mental and physical agony, mortification, humiliation and shame’ and ‘petitioner * * * shows that on account of said assault she is entitled to recover from defendant the sum of five hundred dollars * * * as aforesaid’.
“Item 1. $1,250.00 as tutrix for the use and benefit of the said minor, Charles Edward Knox, for actual physical and mental suffering because of said assault.
“Item 2. $500.00 for the use and benefit ’ of said minor, Charles Edward Knox, for public' humiliation and mortification on account of Said assault.'
“Item 3. $750.00 for punitive and exemplary damages for the use and benefit of the said minor, Charles Edward Knox, making a total due your petitioner as tutrix of the said minor and for his use and benefit of the sum of twenty-five hundred ($2500.00) dollars.
“Item 4. For petitioner individually as the mother of the said Charles Edward Knox, for mental suffering, humiliation, and mortification and disgrace caused her by the said assault, the sum of twelve hundred and fifty ($1250.00) dollars.
“Item 5. Twelve hundred and fifty ($1250.00) dollars as exemplary and punitive damages due your petitioner as the mother of said minor and individually, making a further amount of twenty-five hundred ($2500.00) dollars due your petitioner individually from the said defendant.”

Petitioner prays—

":s * * that she have and. recover judgment against the said Harvey H. Allen, as hereinabove set forth, for the full and just sum of' five thousand dollars * * * and all cost of suit and for all orders, etc., and general relief.”

The defendant excepted as follows:

“Now into court through his undersigned counsel, comes Harvey H. Allen, made defendant in the above entitled and numbered cause, appearing solely for the purpose of this exception, and excepts to seeks to recover damages in behalf of the plaintiff’s petition, insofar as the same minor, Charles Edward Knox, for the reason that it fails to disclose or allege a cause or right of action.
“Wherefore defendant prays that plaintiff’s petition in behalf of the said minor be dismissed and that part of said petition filed in behalf of said minor, Charles Edward Knox, be stricken from the petition and considered as not written.
“Now into court through the undersigned counsel comes Harvey H. Allen, made defendant in the above entitled and numbered cause, appearing solely for the purpose of this exception, and excepts to plaintiff’s petition, for the reason that same does not allege or disclose a cause or right of action.
“Wherefore defendant and exceptor prays that plaintiff’s demands be rejected and this exception sustained.”

The exceptions were tried, sustained and judgment signed dismissing the suit, from which plaintiff appealed.

OPINION

Viewing the exceptions, it appears the first is based upon the following assumptions :

1. That the action is by Mrs. Knox individually, and that she cannot recover damages for injuries received by her son.

2. That, “in event it is held that the action is by the mother in her representative capacity and for the use and benefit of her son, that the demand for punitive damages fails to state a cause or right of action.

And the second—

1. That' the -suit is brought by Mrs. Knox individually, and she cannot recover damages for injuries received by her son.

2. That she cannot recover damages for mental suffering, etc., sustained by her son by reason of the suffering and anguish of her son.

3. That the demand for punitive damages fails to state a cause or right of action.

I.

(1) While there is no allegation in the petition which specifically joins the minólas a co-plaintiff, it is alleged that the plaintiff is the mother and tutirx of the minor, and it is conceded that as to items one, two and three recovery could be had by plaintiff only in her representative capacity, and as to these items the plaintiff alleges they are due to her as tutrix of the minor.

While there can be no doubt that the capacity of one who appears in court as the representative of another must be alleged, yet where the parent appears claiming damages resulting from injuries sustained by her minor child, which could be recovered by the parent only in her representative capacity, the court has looked to this fact in determining whether or not the parent appears - individually or as representing. the minor.

In Maille vs. Ill. Cent. R. R. Co., 121 La. 360, 46 South. 355, where the father appeared claiming damages resulting from injuries sustained by his son, and prayed for judgment individually, without having alleged that he appeared in his representative character, the court said:

“We entertain no doubt as to the action being one brought by the father of the child in that capacity for its use and benefit. Where a plaintiff bringing suit in a representative capacity joins individually as a co-plaintiff, it is usual for him Ito so declare. This was not done in this lease. The prayer must be read in connecItion with the pleadings. The damages set lout are declared to be the damages due the child. No others are mentioned.”

This case was cited in Hanna vs. Otis, 151 La. 851, 92 South. 360, where the father had instituted suit to recover damages for an assault and battery committed against his minor son, asking for judgment in his favor for the account of his son, and where the damages were clearly such as could have been recovered by plhintiff only in his representative capacity.

The reasons assigned in the opinions cited we think are applicable where the plaintiff alleges that, she is the tutrix, and the damages sought to be recovered are declared to be those due the minor, or appear to be only such as could be recovered by the plaintiff in her representative capacity, and although the present case may be distinguished from the case cited, in that here, the plaintiff also seeks to recover damages which are alleged to have been sustained by her individually, however, we are of the opinion that as to items one, two and three, the petition, under a liberal construction, which appears to be the rule in such cases, shows that the plaintiff appears in her individual capacity.

(2) The demand for punitive damages is not supported by the jurisprudence of this state. (Serio vs. American Brewing Co., 141 La. 291, 74 South. 998; Jansen vs. Abadie, 157 La. 357, 102 South. 428, ¿nd authorities cited.)

II.

(1) This is covered by the ruling above.

(2) The parent cannot recover damages for material suffering, humiliation and disgrace suffered by her as the result of an assault upon her child. (Sperier vs. Ott, 116 La. 1087; Underwood vs. Gulf Mfg. Co., 128 La. 958, 55 South. 641.

(3) Punitive damages are not recoverable under the law of this state.

The petition shows that there are in fact two parties plaintiff, each claiming the right to recover damages which aré separate and distinct, the minor represented by his tutrix, and mother, and the mother individually.

A cause of action is stated as to the minor, but the mother fails to state a cause of action, and considering the exceptions in a liberal manner, as the petition has been considered, we are of the opinion that items three, four and five of the petition should be stricken therefrom.

It is therefore ordered that the judgment appealed from be annulled, and that there be judgment sustaining the exceptions of no cause of action as to the claims set up by Mrs. Knox individually under items four and five of the petition, and that said items be stricken from the petition. and the exceptions as to the claim set up by the minor through his tutrix be overruled, except as to item three, as shown by the petition, and as to this, the exception be sustained and said item three be stricken ■ from the petition, and that the caiise be remanded to be proceeded .with in accordance herewith and according to law.


text:
    No. 2026
    Second Circuit
    MATTHEWS v. RUDY
    (April 10, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Builders and Buildings — Par. 24.
    Where defects are latent, the acceptance of the work will not ordinarily prevent the owner from demanding that the contractor ■ should remedy same; but where the defects are of minor importance such as leaks in the roof and leaks over the dormer windows, the acceptance of the work discharges the architect and builder from responsibility unless there is an agreement to the contrary.
    2. Louisiana Digest — Builders and Buildings^ — Par.. 8.
    The law does not hold architects and builders responsible for the defects caused by the foundation giving way when it is due to latent defects in the soil; but where the defects result from an error in the plans or by reason of the foundation having been laid upon soil known to be insufficient to supjfl port the structure they, cannot avoicH responsibility for tbe damage done tqB the plumbing by the sinking of thcB foundation. ■
    3. Louisiana Digest. — Prescription—Par. 78m 87. H
    The prescription of ten years provided bs Article 2762 of the Civil Code appliej to buildings which are constructed on soil which allows them to sink and cause damage. The prescription of one year provided by Article 2546 of the Civil Code does hot apply.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo.
    Action by Mrs. Lucy G. Matthews against S. Rudy, et al. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Melvin F. Johnson, of Shreveport, attorney for plaintiff, appellant.
    Bullock and Warren, of Shreveport, attorneys for defendant, appellee.
   WEBB, J.

In this action plaintiff seeks to recover judgment against defendant for amounts alleged to be necessary to remedy alleged defects in a building constructed by the defendants, and damages alleged to have resulted to the building from such defects.

Plaintiff alleges she purchased a lot from defendants on which there was a building, and that the building was guaranteed to be in first class condition, but that very soon after she took possession eaks developed in the roof and in the plumbing, and that the piers caved in, and that she had expended eight and 60-100 dollars to have the roof repaired; that the eaks in the roof had damaged the wall paper to the extent of eighty dollars, and ;he cost of repairing the plumbing and damages occasioned by the leak would imount to sixty-five dollars, and of leveling and repairing the piers would amount ;o seventy-five dollars.

She alleged that the dormer Windows had been covered with shingles and that sheet iron should have been used, the cost of such work being alleged at thirty-five dollars.

She further alleged the cause of the piers sinking was due to a storm sewer on the premises, the presence of which she' had not been advised of at the time of the sale.

The defendants answered denying the allegations as to any special warranty, and as to defects, and alleged that the building had been constructed by them under a contract with plaintiff in accordance with plans and specifications.

The defendants also pleaded the prescription of one year under Article 2546 C. C.

The cause seems to have been presented to the court with the view of advising it of all the facts surrounding the transaction between the parties by which the plaintiff acquired the property, and the court in passing upon the case considered the evidence, not only as it related to the allegations of the petition, and the rights of the parties as vendors and vendee, but also with relation to the law governing the rights as owner and contractor. The judgment of the district court rejected plaintiff’s demand and she appealed.

OPINION

The evidence establishes that the defendants, who are general building contractors, were the owners of a lot, and an agreement was made between them and plaintiff under which defendants would construct a building upon the lot in accordance with plans and specifications prepared by them, and. after, tbe completion of tbe building tbe property' would be transferred to plaintiff at a price agreed upon for the whole; that when defendants came to construct the building, they, ascertained the lot had been filled in, and without advising plaintiff of this fact the foundation was laid as called for by the 'plap§, which appear to have been such as were customarily used for buildings of the character to be constructed where the foundation is laid upon the original soil.

The .evidence further shows that very soon after the plaintiff took possession, the roof of the house and dormer windows began to leak, and also that the plumbing leaked, and piers settled, causing damage to the building.

It is shown that when the first leaks in the roof appeared, plaintiff notified defendants, who made repairs, but that defendants refused to make other repairs of leaks, or to repair the plumbing or piers.

The evidence shows the leaks to have been caused by the shingles splitting, which appears to have been due to the quality of the shingles, which, however, were the quality called for by the specifications; and it is also established that the leaks in the plumbing were due to the piers giving way, which, in turn, was due to the foundation being laid upon “filled in” soil.

There was no evidence as to the special warranty, and the witnesses did not attribute the sinking of the piers to the storm sewer but to the conditions above.

In view of the answer of the defendants in which it was alleged the building had been ■ constructed under contract with plaintiff and in ■ accordance with plans and specifications, and of thé' evidence establishing the fact, we are of the opinion the rights and obligations of the parties are governed by the law relating to the construction of buildings by the job, etc. (Laurent vo. 26, No. 34; Baudry-Lacantinerie, vol. 2, No. 3954); and from this point of view we shall consider the case under the following heads:

1. The leaks in the roof and dormer windows, and the right of the plaintiff to recover for repairs and damages.

2. The leaks in the plumbing and the caving piers, and the right of plaintiff to recover for repairs and damages.

(1) The evidence does not show the roof as a whole to be defective, that is, “that it cannot be repaired other than by replacing the roof”, although it indicates that a roof constructed with the quality of shingles used may be expected to develop leaks, and of course to call for repairs, and it may be that this was in the contemplation of the parties, as the defendants repaired the roof when the first leaks appeared, but contend that they were not obliged to make such repairs, and refused to make other repairs.

It must be conceded that a builder will not be permitted to shield himself from responsibility for making a bad roof, on the ground of the material being unsuited for the purpose.

“The defense that bad shingles were furnished by the plaintiff will not avail the party in his excuse for making a bad roof, when he made no objection to their quality before putting them on. (Mouton vs. Droz, 16 La. 111.)

However the evidence does not show the roof as a whole to have heen bad, or that the shingles were unfit for the purpose and we are of the opinion that plaintiff, by accepting the building without having a stipulation or agreement as to minor defects or such defects as could be easily repaired and which do not affect the work as a whole, must be held to have waived any claim for repairs or damages caused by the appearance of such defects.

Where defects are latent, the acceptance of the work will not ordinarily be considered as preventing the owner from demanding that the contractor should remedy same (Levy vs. Schwartz, 34 La. Ann. 214); but where the defects are of minor importance we are of the opinion that the acceptance of the work discharges the' architect and builder from responsibility, unless there is an agreement to the contrary. (See Police Jury vs. Johnson, 111 La. 282, 35 South. 550; Fuzier-Herman, Art. 1792, C. N. Nos. 51, 52.)

We are of the opinion that the plaintiff cannot recover for the cost of repairs of the leaks in the roof or the damage occasioned by such leaks.

As to the dormer windows,, the evidence does not establish that the shingles used to cover the windows, were not suited for the purpose, and the defects which appeared are, we think, in the same class as those appearing in the roof, and for the same reason plaintiff cannot recover.

(2) As to this, the evidence, as stated, shows that the defect in the plumbing was caused by tbe piers giving way, which was the result of the foundation being laid upon “filled in” soil, and we are of the opinion that this was a defect which tends to affect the work as a whole, and the question is whether or not the appearance of the defect is under the law attributable to the fault of the defendants, architects and builders.

The law does not hold architects and builders responsible for the defects caused by the foundation giving way when it is due to latent defects in the soil (Bank vs. Fuselier, 9 Rob. 26; Powell vs. Markham, 18 La. Ann. 581); but where the defect results from an error in the plans or by reason’ of the foundation having been laid upon soil known to be insufficient to support the structure, or which should have been known to be insufficient by the experts, architects and builders who made the plans and constructed the building, they cannot avoid responsibility on the ground that the foundation gave way. (Art. 2762, C. C.; Ingle vs. Jones, 2 Wall. 1; 17 Law Ed. 762; Florida R. R. Co. vs. Smith, 21 Wall. 255; 22 Law Ed. 513.)

The evidence, we think, shows that defendants should have known that the foundation called for by the plans was insufficient, having regard to the soil upon which the building was to be constructed, and that the defects are attributable to their fault, under the provisions of Article 2762 of the Civil Code, to which the prescription of ten years is applicable, and not the prescription of one year.

There is a difference in the opinions of the witnesses as to the cost of remedying the defects and repairing the damage caused by the same; however, the only witness who appears to have examined the premises with reference to making the reparations fixes the amount for the plumbing at sixty-five dollars, and for levelling piers at seventy-five dollars, and we are of the opinion that his testimony is not overcome by the statements of the defendants that the amounts were excessive where it appears they had not made an examination of the premises for the purpose of ascertaining the amount which would be required to make the reparations.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and reversed, and that plaintiff have and recover judgment against defendants in the sum of one hundred and forty dollars, with legal interest thereon from January 1, 1922, and all costs of suit.


text:
    No. 2715
    Second Circuit
    STATE EX REL. G. T. HAYES v. STEPHENS, AS JUDGE, ETC.
    (May 22, 1926, Opinion and Decree)

      {Syllabus by the Editor.)

    1. Louisiana Digest — Courts—Par. 127.
    Under the constitution of 1921 Article YII authority to issue remedial ’writs is given the Court of Appeal only in aid of its appellate jurisdiction.
    This is an application by the State of .Louisiana, on the relation of G. T. Hayes, for writs of certiorari, mandamus and prohibition, directed to the Hon. J. H. Stephens, as one of the judges of the First Judicial District Court of Louisiana, in and for the Parish of Bossier.
    Petition dismissed for want of jurisdiction.
    W. W. McDonald, of Shreveport, attorney for relator.
   Petitioner alleges that he was defendant, appellant, in a certain suit pending in said court on appeal from the Justice of the Peace’s court for the sixth ward of Bossier parish entitled Drew Alford vs. G. T. Haynes and numbered 9772 on the docket of the court; that the case was fixed for trial in the District Court for April 28, 1926, and was called for trial; that petitioner’s attorney, Hon. W. W. McDonald, was at the time unavoidably and unexpectedly absent from the court and notwithstanding that fact the trial of the case was taken up and petitioner’s appeal was dismissed by the court.

That petitioner duly filed in the district court a motion to have the judgment dismissing his appeal set aside and to have the case reinstated on the docket of the court for trial on the ground of the un- | avoidable and unexpected absence of his attorney from court when his case was called for trial but that his motion was | overruled.

He prays for writs of certiorari, manda- j mus and prohibition directed to the Hon. I J. H. Stephens as one of the judges of I the First Judicial District Court of Louisi-j ana in and for the Parish of Bossier order-1 ing the record in the case sent up to this court for review, prohibiting hiin from permitting execution of the judgment appealed from, and commanding him to reinstate the case on the docket of the district court for trial.

The court is not asked to issue these writs in aid of its appellate jurisdiction, and it has no supervisory jurisdiction over inferior courts.

Authority to issue remedial writs is given this court only in aid of its appellate jurisdiction.

Constitution of 1921, Article VII.

As the writs are not being sought in aid of the appellate jurisdiction of this court, it follows that petitioner’s application must be dismissed for want of jurisdiction in this court to grant it.

Lavoy vs. Toye Bros. Auto, Etc., Co., 159 La. 209, 105 South. 292.

Petition dismissed for want of jurisdiction.


text:
    No. 2540
    Second Circuit
    ALEXANDER v. LOUISIANA HIGHWAY COMMISSION
    (May 7, 1926, Opinion and Decree)
    (June 2, 1926, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Expropriation—Par. 85, 90.
    Where a road contractor wrongfully damages an estate and uses part of it for the road without expropriation proceedings having been instituted, the right of action is against the road contractor and not the highway commission.
    2. Louisiana Digest — Expropriation—Par. 89; Prescription — Par. 110.
    The prescription of one year prescribed by Article 3536 of the Civil Code is applicable to damages occasioned by a road contractor wrongfully taking the property for the road without first resorting to expropriation proceedings.
    Appeal from the Third Judicial District . Court of Louisiana, Parish of Lincoln, Hon S. D. Pearce, Judge.
    Action by Mrs. Leo Alexander against Louisiana Highway Commission et al. There was judgment for defendants sustaining plea of prescription. Plaintiffs appealed.
    Judgment affirmed.
    Long and .Crow, of Shreveport, attorneys for plaintiffs, appellants.
    J. Rush Wimberley, of Arcadia, attorney for defendants, appellants.
   WEBB. J.

In this action, which was filed on March 2, 1925, the plaintiff alleged that the Louisiana Highway Commission contracted with C. W. George & Co. to construct and build a highway and that the contractor acting under the contract and supervision of the commission ' which had laid out the road, had in June and July of the year 1923 taken charge of and appropriated to their uses and to the use of the public a tract of land belonging to plaintiffs and in so doing had destroyed a fence belonging to petitioners and had otherwise damaged petitioners to the extent of thirteen hundred and ten dollars, which is itemized as follows:

Value of land taken and appropriated ............ $500.00

Destruction of fences__________________________ 200.00

Damages to premises by excavation, etc_______________________________________________ 500.00

Loss of rental value of premises________ 110.00

Plaintiffs prayed for judgment against defendants in solido.

A settlement was made between plaintiffs and the commission and .the suit as to it dismissed, and C. W. George & Co. pleaded the prescription of one year which was sustained and plaintiff appealed.

OPINION

The contention of the plaintiff appears to be that the commission having taken the property without first resorting to expropriation proceedings, plaintiffs had a personal right against it to .recover the value of the land taken and damages resulting to plaintiffs from establishing the highway on the lands taken; that the prescription applicable to such an action is ten years, under Article 3544, C. C., or at least two years, under Section 1497 of the Revised Statutes, and the contractor being sued with, and judgment asked for against them in solido, the same prescription must be applicable to one as the other.

Conceding that the prescription of one year would be applicable to the demands (including that for the destruction of the fence) as against the commission, we are of the opinion that the right of action as against the commission does not arise strictly from an offense or quasi offense (Foster vs. New Orleans, 155 La. 589, 99 South. 686); but as against the contractor the right of action does arise from an offense or quasi offense and that the prescription of one year under Article 3536, C. C., is applicable (Simms vs. New Orleans Ry. Co., 134 La. 987, 64 South. 823; Griffin vs. Drainage Co., 110 La. 840, 34 South. 799).

The judgment appealed from is therefore affirmed.


author: MOUTON, J. MOUTON, J.

text:
    No. -
    First Circuit
    BOMAR v. CITY OF BATON ROUGE
    (April 1, 1926, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Dedication—Par. 5, 6, 13; Roads — Par. 3.
    Although no particular form is necessary for the dedication of land for public use, the positive assent of the owner must appear, and the fact of its being used for public purposes intended by the appropriation.
    2. Louisiana Digest — Dedication—Par. 13.
    No one is presumed to give and proof of dedication is essential. Dedication cannot be inferred from the user alone.

      3. Louisiana Digest — Servitude—Par. 6, 8.

    The right of passage is a discontinuous servitude under Article 727 of the Civil Code and can be established only by a title and not acquired by possession.
    (See Civil Code, Article 766. Ed ¡tor’s note.)
    4. Louisiana Digest — Dedication—Par. 6, 13.
    The fact that in a sale of lots there was a stipulation excepting a roadway which ran over part of them will not show the roadway to have been dedicated, especially where another deed was thereafter filed, transferring to the same vendee the portion covered by the lot.
    5.Louisiana Digest — Damages—Par. 90.
    Damages or rentals will not be allowed for the use of a roadway by a city where no damages or rental agree- • ment proven.
    6. Louisiana Digest — Dedication to Public Use-Par. 7, 9, 13.
    The fact that a lot appeared on the city map as part of a road could not change the title of this property or operate as a dedication to the city.
    7. Louisiana Digest — Servitude—Par. 19, 20; Roads, Bridges and Ferries— Par. 3.
    Under Article 727 of the Civil Code the right of passage is a discontinuous servitude which can not be acquired even by immemorial possession, a title being essential for such acquisition.
    Appeal from the Parish of East Baton Rouge, Hon. W. Carruth Jones, Judge.
    Action by Darley D. Bomer against City of Baton Rouge.
    There was judgment for defendant, and plaintiff appealed.
    Judgment reversed granting plaintiff title to portion of lots covered by roadway but disallowing plaintiff’s claim for damages and rentals.
    W. O. Watson of Baton Rouge, attorney for plaintiff, appellant.
    H. Payne Breazeale, of Baton Rouge, attorney for defendant, appellee.
   MOUTON, J.

Plaintiff alleges that he acquired Lots 15 and 16, in Square No. 18, situated in the city of Baton Rouge; Lot 16 from the Zadock Realty Company on March (25, 1919; and Lot 15 from George R. Carruth on the 5th day of March, 1919. The defendant city admits plaintiff is the owner of Lot 15, but denies that he is the owner of all of Lot 16. These lots were located in the parish of East Baton Rouge up to the year 1898. The city limits of the City of Baton Rouge were, under the Act of the Legislature of that year, extended so as to include these lots within its corporate limits. Plaintiff alleges that the city has dug up a portion of Lot 16, with the view of maintaining it as one of its permanent improved streets, that it has no title thereto, and is a mere trespasser. Plaintiff prays for the ownership and possession of the lot in its entirety, for damages in the sum of $250.00, and for rentals per month from March 25, 1919.

The record shows that prior to the extension of the limits of the city there was a road known as the Perkins Road, a public road of the parish of East Baton Rouge, which ran through this lot, No. 16, prior to the time it was taken within the corporate boundaries of tbe city in 1898. It is admitted by plaintiff that this Perkins Road has been “running through the parish of East Baton Rouge, and into the city of Baton Rouge, as presently used, has been used as such for more than- 75 years by the public”. .This road takes a .space or cuts off a strip of about 20 feet wide across the southwest corner of Lot No. 16, a corner lot. It also tips off an extremely small portion of Lot 15, but this is so inconsequential that it is not a factor in this contest. The city answers in substance that over this strip of ground there is a public street of the city, known as the “Perkins Road”, which is a continuation of a public road running through the parish of East Baton Rouge into the city, also called the Perkins Road; which street or road has been properly dedicated to .the parish of East Baton Rouge and to the city of Baton Rouge, and that it has been so used by the public generally, of the parish and city, for a period of more than seventy-five . years. The question as to whether there was a dedication of this strip of ground presents the vital issue in the case.

Though no particular form is necessary for the dedication of land to public use, the positive assent of the owner must appear, and the fact of its. being used for the public purposes intended by the appropriation. City Council of Lafayette vs. Holland, 18 La. 286; Linton vs. Guillotte, 10 Rob. 360; Leland University vs. City of New Orleans, 47 La. Ann. 104, 16 South. 653; New Orleans & C. R. Co. vs. Town of Carrollton, 3 La. Ann. 282. No one is presumed to give, and proof of dedication is essential. McCearley vs. Lemennier, 40 La. Ann. 253, 3 South. 649. Dedication cannot be inferred from user alone. Beck vs. Fleitas, 37 La. Ann. 497. We say by user alone, as there is no proof whatsoever that this Perkins Road was ever declared ■ a public highway by the police jury of the parish of E'ast Baton Rouge. Act 25 of 1904. The fact that the Perkins Road ran over this lot for a period of fifty, sixty or seventy-five years prior to its incorporation within the corporate limits of the city of Baton Rouge does not make proof of dedication. The proof is that after this lot had been taken into the city limits, the public continued to use it as a street of Baton Rouge. This use by the city was a mere continuation of the use which had been made of it as a public road by the traveling public of the parish of East Baton Rouge. This right of passage so enjoyed by the parish, and thereafter by the city, was a mere discontinuous servitude; C. C. 727; and which could be established only by a title, and could not be acquired by possession; C. C. 766. In admitting the evidence to show that this road had been so used by the parish and city during a period of seventy-five years the court recognized the correctness of the views above expressed, in saying that this proof was admitted as not establishing title either in the parish or city of Baton Rouge to the space of ground taken by the Perkins Road, as neither could acquire ownership thereto by prescription. In its opinion, however, the court said that from the fact that the official map of the city of Baton Rouge, approved in 1910, shows that the Perkins Road extended through this lot, and that it had been used without any evidence of objection or interruption on the part of the owners involved during all this period of time, until the complaint of plaintiff was filed, a dedication of .this strip should be inferred. In support of this conclusion the court cites a number of decisions of the Supreme Court of this state. The rule which declares that no particular form is necessary for the dedication of land to public use is well established by many decisions of our courts and by those cited by the district judge. If the dedication appears from some plan or writing or titles of the owner this is all that is required to establish it if accepted by the public. In the absence of such grant or deed, it must always appear that the ground has been used with the assent of the owner and for public purposes. The fact that the city of Baton Rouge made an official map of the outlying district in which the lot in question is located showing that the Perkins Road ran over its southwestern corner is not proof that the owners at that time ever assented to make a dedication of the part of the lot so used. As we have heretofore stated, when the limits of the city were extended and the map of the city made, the parish and city had had a mere use of the strip in question. Neither the extension of the corporate boundaries nor the map of the city could effect a change in the status of the property and operate a translation of the title of this space of ground by dedication to the city, otherwise the rights to realty would be very insecure. The lot in question is .situated in what is now known as the Roseland Terrace. A map of Roseland Terrace was offered in evidence. This map does not show that the Perkins road runs across this lot. It seems from the record that this Roseland Terrace was subdivided into city lots by the Zodack Realty Company from which plaintiff bought. There is no evidence to show that the Zodack Realty Company or its vendor or vendors ever made a dedication of the strip of land in dispute by' grant or deed or by positive assent to its use by the public. As far as the map of the Roseland Terrace shows the proof indicates that no such dedication was made. In the sale, however,- from the Zodack Realty Company' of this lot to plaintiff appears the clause, following: “It is well understood and agreed by and between the vendor and vendee. herein that the Perkins road runs across a portion of the lot herein conveyed and so much of said lot as is taken up by the said Perkins Road as presently established is especially excepted from this sale.” It is on this clause in the contract of sale by which plaintiff acquired that defendant’s counsel places his main reliance for proof that there was a dedication of this strip to the city of Baton Rouge. Plaintiff admits that he knew that this Perkins Road ran across the lot when he bought. He is the one who suggested that a clause in reference to the lot be inserted in the deed. He says he did not understand it would be put in the words in which it appears in the act of sale. There is nothing to indicate that the Zodack Company, vendor of the plaintiff, prior to the suggestion of the plaintiff, intended in any way to make the reservation embodied in the clause above reproduced. The company, no doubt, intended to convey title to plaintiff of the entire lot, including the disputed strip, and made the reservation merely to comply with the request of the plaintiff. That such was the intention of the Realty Company appears from a correction deed it subsequently executed in favor of the plaintiff. In this correction deed, the company, in referring to said clause, says: “It has the effect of reserving title in the realty company, where, as a matter of fact, the company intended to transfer its entire interest in the said lot but without warranty as to the portion taken up by the said Perkins Road.” Evidently,, the company by this declaration in this cor? rection deed, shows very clearly that its purpose was to transfer title to plaintiff for the entire lot, but fearing that the city might be entitled to the strip because the Perkins Road ran over it, refrained from warranting title thereto to plaintiff.

C. J. Brown, the representative of the Zodack Realty Company, who sold the lot to plaintiff, testified in the case. He says it was understood when plaintiff bought that the road would be straightened out and that plaintiff would get the ownership of the whole lot, and which appeared as a full lot on the Rose-land Terrace map, although as an actual fact the Perkins Road' took a portion of it. He says it was understood plaintiff was only getting possession of a portion of the lot. This testimony makes it even clearer than did the correction deed, that the company intended to convey title to the -whole lot, with possession only of the portion unoccupied by the road. Plaintiff .says he thought he was buying the whole lot, but thought it was advisable to put the clause in question in the sale. The evidence properly analyzed justifies the conclusion that the Zodack Company intended to sell all of the lot and that plaintiff intended to buy it in its entirety. The trouble was that the vendor and vendee saw this road running across its southwestern portion, and made the reservation in the sale under the apprehension that the city might possibly be entitled thereto by use or dedication. The reservation was therefore made in respect to the city’s rights if it had a dedication to the strip in question. This was the purpose or motive which prompted the parties to insert this clause, but there is nothing in the reservation to indicate that either party was actuated by the least desire to dedicate this space of ground to the city of -Baton Rouge to be used by it as a street, or road for public purposes. .There is no deed, act, plat or survey of either plaintiff, the realty company, or of their authors in title to show that this strip of land was ever dedicated to the parish or city of Baton Rouge to be used as a public road or street. The record is also barren of the existence of any facts or circumstances to sustain such dedication by plaintiff or the Zodack Realty Company or their authors.

The district judge to a large extent rested his opinion on the decision reported in Lawson vs. Shreveport Waterworks Co., 111 La. 73, 35 South. 390. In that case it appears that a roadway had for a long time been recognized over a little stream known as Blind Bayou. The Shreveport Waterworks Company obligated itself to maintain a bridge over this bayou which had been used for many years by the general public. The owner in selling a strip of his land to that company stipulated for this road to be kept open and that a bridge thereon be constructed and maintained by the company over Blind Bayou. |The court found that nothing else could have been meant by the owner but that the then existing status should continue. It appeared from the existing status that a road had been established there which had been used by the general public during a long period. This stipulation which provided for the construction and maintenance of this bridge, the court said, was a recognition by the owner of the land of the public character of the road, and was a stipulation pour autrui. In the clause excepting the sale of the strip in dispute in this case there is certainly no stipulation that it should be recognized as a street, road or highway, nor is there any language therein used from which it could be inferred that a reservation was intended to be made pour autrui or for the benefit of the general public.

It must also be observed that the finding of the court in the case above cited that this reservation was in effect a stipulation pour autrui appears in the original opinion, and that the case on rehearing was decided on quite a different principle of law, as it was there held that where a party opens a public way he impliedly licenses the public to use it, and if a licensee is injured while traveling over it, due to the lack of care of the roadway, the owner of the soil is responsible in damages. The final judgment was, therefore, not grounded on the proposition that the stipulation of the owner of the land was one pour autrui from which resulted a dedication of the roadway to the general public. Even if it be true that the judgment of the court rested on this principle, it can have no application here, as the facts and circumstances herein presented are not at all similar to those which appear in Lawson vs. Shreveport Waterworks Co., 111 La. 73, 35 South. 390.

As the strip of land in this case was excepted from the sale, it is clear that the title remained in the Zodack Realty Company, the vendor of the plaintiff, which had the right to subsequently make a transfer thereof to plaintiff. This the company effected by an act of sale of a date later than that of the original sale wherein the other portion of the lot had been conveyed. No additional price, it is true, was paid by plaintiff for the strip thus transferred. This fact supports the contention that the whole lot was originally intended to be transferred. Be that as it may, the realty company had clearly the right to make a conveyance of this strip by this subsequent act as it had remained the owner thereof. If the defendant city had had any rights to this strip by dedication or other title when it was transferred, it could possibly have interposed objections to its sale, but as it had no ownership therein, it is not concerned in its sale, which is a matter that appeartains to the vendor and the vendee in the transaction.

As to the damages and rentals claimed against the city, we find no proof to sustain this branch of the demand.

It is therefore ordered adjudged and decreed that the judgment appealed from be avoided, annulled and reversed. It is further ordered and decreed» that plaintiff have judgment against defendant decreeing him the owner and entitled to the possession of the space of ground or strip of land of Lot 16 of Square 18 of Roseland Terrace in contest over which the Perkins Road runs as appears from the official map of the city of Baton Rouge made by R. Stewart, civil engineer, approved by the mayor of said city, and recorded on the public records of the parish of East Baton Rouge; that the demand of the plaintiff for damages and rentals be rejected and that the defendant pay all cost of suit.

ON APPLICATION FOR A REHEARING

MOUTON, J.

The strip of ground in contest herein is about 20 feet wide and runs across the southwest corner of lot 16 the property of the plaintiff. Prior to the extension of the territorial limits of the City of Baton Rouge in 1898, the general public of the Parish of East Baton Rouge had for a period of about 75 years exercised the right of passage over this strip which became known as the Perkins Road. As far as. the record shows there is no evidence whatsoever to show that there ever was a dedication made of this strip to the Parish of East Baton Rouge by any written document, title, grant or deed. The record is also barren of any proof to show that this road has ever been declared a public highway by the Police Jury of the Parish of East Baton Rouge by which it could have acquired title thereto by the prescription of ten years under the provisions of Act 25, 1914, p. 30, or that it had been worked for a period of 3 years by authority of the police jury, so as to make it a public road under Act 220, 1914. Sou. Rep.: Case of Bresson vs. Police Jury of Caddo Parish, No. 8, vol. 107, does not apply. It therefore appears that the people of the parish had had only the use of this strip of ground under the name of the Perkins Road for the period above stated. Prom this use alone, as we have heretofore stated in our original opinion, dedication could not be inferred. Torres vs. Falgoust, 37 La. Ann. 497.

If the parish ever had title, of which there is no proof, there is no evidence that it ever made a transfer thereof to the defendant, the City of Baton Rouge. This Perkins Road which ran over this strip of the lot in question was incorporated within the city limits under the extension effected in 1898.

As we said in our original opinion, the City merely continued to exercise the right of passage over this strip of ground. There is no proof, however, of any dedication of this strip to it from any one by grant, deed or otherwise. This right of passage was certainly a discontinuous servitude, C. C., 727; and which could not be acquired even by immemorial possession, a title being essential for such acquisition, C. C., 766.

The City had no title, and its enjoyment of a right of way over this strip could not give it title though exercised, in connection with the prior use of the people of the Parish of East Baton Rouge, during a preiod of 75 years or .more. The fact that this strip had with lot 16 been incorporated within the limits of the City in 1898, or that it appeared on the official map of the City, as the Perkins Road, could not, as we said in our first opinion, have the effect of “changing the status of this property and operate a translation of the title of this space of ground by dedication to the City, otherwise the rights to realty would be very insecure”.

After a re-examination of this case, we find no reason to grant a rehearing.

For the foregoing reasons, and those given in the opinion heretofore rendered, the rehearing is refused.


text:
    No. 2090
    Second Circuit
    PARRY v. COX
    (March 11, 1926. Opinion and Decree.)
    (April 10, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Attachment—Par. 75, 98.
    A citation served upon an attorney appointed by the court cannot validate a seizure under a writ of attachment or give the court jurisdiction as under Article 260 of the Code of Practice. The appointment of an attorney is made in order that issue may he joined and it is not essential that the attorney he served with the process.
    2. Louisiana Digest — Attachment—Par. 76.
    Under Article 254 of the Code of Practice in order to make a valid attachment of an absentee’s property within the state it is necessary that the writ or mandate of attachment must be posted on the door. The posting of the petition and the order for the attachment is not sufficient.
    3. Louisiana Digest — Attachment—Par. 72; Garnishment — Par. 36.
    Where in an attachment suit no legal seizure was made upon the property of an absentee in the hands of the garnishee the court did not obtain jurisdiction and therefore the judgment rendered was null and void.
    Appeal from the Twelfth Judicial District Court of Louisiana, Parish of DeSoto. Hon. John H. Boone, Judge.
    Action by D. F. Parry on a writ against Sam Cox, defendant absentee.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed dismissing plaintiff's suit for lack of jurisdiction.
    J. W. Parsons, of Mansfield, attorney for laintiff, appellee.
    R. S. Williams, of Mansfield, curator ad oc for defendant.
    Lee & Bell, of Mansfield, attorneys for ntervenors, appellants.
   WEBB, J.

The transcript in this case shows:

That on September 5, 1923, Dillard P. Parry, plaintiff, brought suit against Sam Cox, an absentee, and under appropriate allegations, and after making affidavit, obtained an order, which was annexed to the petition, for appointment of an attorney to represent the absentee, and for writs of attachment against defendant and garnishment against the Longstreet State Bank.

That a bond was given, as required by law, and citations issued, two of which read as follows:

“Dillard P. Parry “versus “Sam Cox.
“No. 10,960
“In the Twelfth District Court, Parish of DeSoto, State of Louisiana.
“To Sam Cox, Absentee; R. S. Williams, Attorney-at-Law, of the Parish of DeSoto, State of Louisiana:
“You are hereby cited to appear in the office of the Clerk of the said court in the town of Mansfield, parish aforesaid, and comply with the demand contained in the petition, of which a copy is hereto annexed, or file your answer thereto in writing in the office of said clerk, in ten days after the service hereof, with one additional day for every ten miles between your residence and the office of said clerk; provided, however, that in no case shall the delay exceed fifteen days.
“Witness, the Honorable John H. Boone, Judge of said Court, this 5th day of September, 1923.
(Seal) ' “G. C. CALDWELL,
“Deputy Clerk of the Said Court.”

The return on one of the citations reads:

“Received the within citation on the 5th day of September, 1923, and on the 7th day of September, 1923, served the same on the within named Sam Cox absentee, * * * by attaching a copy hereof with copy of citation attached thereto on the front dor of the room in which the district court of DeSoto Parish, Louisiana, is held in the town of Mansfield, La.
(Signed) “J. D. BRIDGES,
“Deputy Sheriff.”

And on the other:

“Parish of DeSoto, State of Louisiana.
“Received the within citation on the 5th day of September, 1923, and on the 6th day of September, 1923, served the same on the within Sam Cox, absentee, R. S. Williams, attorney-at-law of Mansfield, DeSoto Ph., La., by handing a certified copy thereof, together with a certified copy of plaintiff’s petition, to R. S Williams, attorney, in person in the town of Mansfield, DeSoto Parish, La., and by further attaching a certified copy of said petition and citation on the front door of the room in which the District Court is held in the town of Mansfield, DeSoto Parish, La.
(Signed) “J. D. BRIDGES,
“Dy. Sheriff.”

There was also issued on the 5th day of September, 1923, garnishment against the Longstreet State Bank reading as follows:

“Dillard F. Parry “versus “Sam Cox.
"Longstreet State Bank, “Garnishee.
“No. 10,960.
“In the Twelfth 'Judicial District Court, “Parish of DeSoto, State of Louisiana.
“The State of Louisiana and Said Court:
“To Longstreet State Bank, Garnishee, of the Parish of DeSoto, State of Louisiana :
“You are hereby cited to declare on oath what property belonging to the defendant in this case you have in your possession, or in what sum you are indebted to said defendant, and, also, to answer in writing, under oath, the interrogatories annexed to the petition, of which a copy accompanies this citation, and deliver your answer to same in the office of the clerk of the District Court for the parish of DeSoto, State of Louisiana, within ten days after the service hereof, with one additional day for every ten miles between your residence and the office of the said clerk; provided, however, that in no case shall the delay exceed fifteen days.
“Witness the Honorable John H. Boone, judge .of said court, this, the 5th day of September, 1923.
(Signed) “G. C. CALDWELL,
“Deputy Clerk of the District Court.” (Seal)

Upon which there appears the following:

“Received this writ of garnishment on the 5th day of September, 1923, and on the 6th day of the same month and year I served a certified copy hereof, together with a certified copy of plaintiff’s petition and, interrogatories attached thereto on the within named Longstreet State Bank, by handing same to W. B. Brewer, cashier of the said Longstreet State Bank, in person, in his office about 18 miles from the courthouse in the town of Mansfield, DeSoto Parish, La. The said W. B. Brewer informing me that the president J and vice-president were absent at the time of service and that he, the said W. B. Brewer, had charge of the affairs of the I said Longstreet State Bank at the time | of service.
(Signed) “J. D. BRIDGES,
“Deputy Sheriff.”

And also a writ of attachment reading ] as follows:

“The State of Louisiana.
“Dillard F. Parry “versus “Sam Cox.
“No. 10,960.
“Twelfth Judicial District Court,| “Parish of DeSoto.
“To the Sheriff of DeSoto Parish:
“Greeting:
“Whereas an order has ' been granted byl the Honorable Judge of the Twelfth Judi-| cial District Court, in and for the Parish of DeSoto, for a writ of attachment in| the above mentioned and numbered suit, bearing date of 5th day of September, A. D. 1923, now, therefore, you are hereby commanded, in the name of the State of Louisiana, and of the above mentioned court, to forthwith seize and attach and take into your possession, and the same safely keep until further order of this Honorable Court, all of the property, rights and credits found in DeSoto Parish, Louisiana, belonging to the said Sam Cox, to satisfy the sum of two hundred and thirty-three and 00-100 ($233.00) dollars, interests and costs of these proceedings.
“And when you shall have executed this writ, you will make due return to our said court.
“Witness the Honorable John H. Boone, judge of said court, this 5th day of September, A. D. 1923.
(Signed) “G. C. CALDWELL,
“Deputy Clerk of Court.
“DeSoto Parish, Louisiana.”

Upon which there appears the following:

“Received this writ of attachment on the 5th day of September, 1923, and failing to find any property belonging to the said Sam Cox, absentee, in the parish of Desoto to attach, I hereby return this writ.
“This, the 7th day of September, 1923.
(Signed) “J. D. BRIDGES,
“Deputy Sheriff.”

The answer of the Longstreet State Bank, garnishee, was filed on September 15, 1923, and the answer of R. L. Williams, curator for the absentee, was filed on November 26, 1923.

Trial was had in the District Court on November 26, 1923, and judgment on that date rendered as follows:

“Dillard F. Parry “versus “Sam Cox.
“Longstreet State Bank, “Garnishee.
“No. 10,960.
“Twelfth District Court, “Desoto Parish,. Louisiana.
“In the above numbered and entitled matter, the same having come on regularly for trial and the law and evidence being a favor thereof, it is .therefore ordered, adjudged and decreed that the plaintiff, Dillard P. Parry, have judgment against Sam Cox, in rem, for the sum of two hundred and thirty-three and 00-100 ($233.00) dollars, with five per cent per annum interest thereon from September 5, 1923, until paid.
“It is further ordered, adjudged and decreed that the writs of attachment sued out herein be sustained, with recognition and enforcement of plaintiff’s lien and privilege as the first attaching creditor, and ordered that the attached property as shown by the sheriff’s return on the writ of attachment be sold, after legal delays and advertisements, and that the plaintiff’s judgment herein be paid by preference and priority to all other parties out of said attached property..
“It is further ordered, adjudged and decreed that the plaintiff have judgment against the Longstreet State Bank, made garnishee herein, for the sum of three hundred and twenty and 20-100 ($320.20) dollars, the amount shown in garnishee’s possession as property of Sam Cox, and the garnishee be ordered and commanded to pay over to the sheriff of DeSoto parish, Louisiana, to apply on the judgment herein rendered the said sum of three hundred and twenty and 20-100 ($320.20) dollars, or sufficient amount thereof to pay the amount of this judgment, in principal, interest and costs.
“It is further ordered, adjudged and decreed that the defendant, Sam Cox, pay the cost of this suit.
“Thus done, read aloud and. signed in open court on this, the 26th day of November, A. D. 1923.
(Signed) “JNO. H. BOONE,
“Clerk of the Twelfth District Court,
“DeSoto Parish, Louisiana."

On December 4, 1923, Albert Hanson and Cbauncey J. Mason presented to the District Court a petition in wbicb they alleged that they were creditors of Sam Cox and that the funds which had been garnisheed in the hands of the Longstreet State Bank and which it had been ordered to pay to plaintiff had been deposited to the cr.edit of W. B. Brewer, trustee, who was to be instructed to pay out of such funds the claims due by Cox to them.

That they had been aggrieved by the judgment rendered in the case, and prayed for orders of appeal and citation to issue to the Longstreet State Bank, garnishee, Sam Cox, defendant, through the curator ad hoc heretofore appointed to represent Cox, and upon plaintiff, Dillard F. Parry, through his attorney of record.

The transcript shows that citations of appeal were served as prayed for.

On the date set for hearing in this court, the plaintiff, Dillard F. Parry, and garnishee. Longstreet State Bank,' filed in this court the following motion:

“Dillard F. Parry, “versus “Sam Cox, et al.
“No. 2090.
“Court of Appeal, “Second Circuit, Louisiana.
“In the above numbered and entitled matter now comes the plaintiff, Dillard F. Parry, and the garnishee, the Longstreet State Bank, and for answer to the appeal taken by Albert Hanson and Chauncey J. Mason, gives the court to understand and be informed that appearers make no objection to the case being remanded for trial to the Eleventh District Court.
“Wherefore, appearers hereby acquiesce in the remanding of said case, and for costs and general relief.
(Signed) “J. W. PARSONS,
“Attorney for. Dillard F. Parry and Longstreet State Bank.”

The cause was argued by counsel for appellants, Hanson and Mason, who also submitted briefs, but there was no other appearance than as above noted by the appellees.

OPINION

The position taken by the appellants in this case is that the judgment rendered by the District Court was an absolute nullity, for the reason that the sheriff failed to attach a copy of the writ of attachment to the door of the court room.

The appellants contend that the transcript thus shows that the District Court never acquired jurisdiction and that the judgment rendered was an absolute nullity and this court should reverse the judgment and dismiss plaintiff’s suit.

They cite several decisions in support of their contentions.

In a general way it appears that one who seeks to obtain judgment against an absentee by the process of attachment must have especial regard to two essentials for the validity of the judgment.

First: He must attend to the jurisdiction of the court.

Second: He must attend to the joining of issue before he takes judgment.

In order that the court may obtain jurisdiction over a non-resident by attach-meat proceedings, it is necessary that the court obtain control of property belonging to the absentee, and in order for the court to obtain control of the property of an absentee it is necessary that the property of the , absentee be taken into the possession of the court through its officers, and that this possession may be legal it is necessary that certain formalities be complied with, one of which is directed by the provisions of Article 254 of the Code of Practice, which reads as follows:

“If, * * * the defendant * * * reside out of the state, in such case the sheriff shall serve the attachment and citation by affixing copies of the same on the door of the room where the court in which the suit is pending is held.”

This statute, considered in connection with the law relative to service of process, directs the posting of two documents, one a copy of the citation, the other of the attachment.

In this case the transcript shows that a copy of a citation addressed to “Sam Cox, absentee, R. S. Williams, attorney-at-law,” together with a copy of the petition, was posted by the sheriff.

We do not find any decision where it was held that the court had failed to obtain jurisdiction where it was established that in addition to the citation the petition, containing the prayer for attachment, and the order of the court for the issuance of the attachment, was posted, yet in Connell vs. Medlock, 24 La. Ann. 512, where it appeared that a citation had been posted, and a copy of the petition served on the attorney, the court was held not to have obtained jurisdiction.

In that case the court said:

“The defendant asks for a reversal of the judgment on the ground that the writ of attachment was not posted as required by law. It seems that the citation was posted at the door of the courthouse, and the copy of the petition was served on the attorney ad hoc. The sheriff’s return does 'not mention that he affixed a copy of the attachment to the door of the room in which the court is held. If the defendant is an absentee, in such case the sheriff shall 'serve the attachment and citation by affixing copies of the same on the door of the room where the court in which the suit is pending is held. C. P. 254. These formalities stand in the place of citation served on the defendant, and must be strictly complied with.”

And in Pugh vs. Flannery, 151 La. 1063, 92 South. 699, where it appeared that the citation issued to the defendant was served upon the curator ad hoc, and the writ of attachment was served upon the garnishee, it was said:

“It is clear that a certified copy of the original writ of attachment in this case was not posted as required by Article 254 of the Code of Practice, and that the service of said writ on the garnishee was illegal, and of no effect. Nothing .was therefore levied upon in his hands, no actual seizure of any debt due by him, if any, was accomplished and no jurisdiction was acquired.”

The citation having been served upon the attorney appointed by the court cannot be considered as serving to validate the seizure or to give the court jurisdiction, as it appears that the appointment in such cases is made in order that issue may be joined (Article 260, C. P.), and that it is not essential that the attorney be served with process. Walker vs. Barrelli, 32 La. Ann. 470.

Article 239 of the Code of Practice declares an “attachment” to be a mandate obtained from a competent court, commanding the seizure of property, and the construction which, the court has placed upon the word “attachment” used in Article 254 of the Code of Practice follows this definition, and holds that it is necessary that the writ or mandate of attachment must be posted, and in view of these decisions we are of the opinion that the posting of the petition (which does not seem to be contemplated under Article 255, C. P.) and the order for the attachment was not sufficient, and no legal seizure was made of the property in the hands of the garnishee, and therefore the court did not obtain jurisdiction, and that the judgment rendered was null and void.

As to whether the cause should be remanded depends upon whether or not the order for the issuance of the writ of attachment is still in effect, and we are of the opinion that the question is determined in the negative by the opinion in Pugh vs. Barrelli, 151 La. 1069, 92 South. 699, in which the court said:

“Where the original citation and writ of attachment after service are returned to the clerk’s office by the sheriff and duly filed, they cannot again be issued or served. Plaintiff’s remedy is to apply to the court for an alias writ, which can only issue upon making a new oath, receiving a new order and making a new bond.”

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled and reversed, and that there be judgment dismissing plaintiff’s suit for want of jurisdiction, reserving all rights that plaintiff may have to bring suit on the claims set up in his petition.


author: ODOM, J.

text:
    No. 2585
    Second Circuit
    SWEENEY v. BLACK RIVER LUMBER COMPANY
    (May 7, 1926. Opinion and Decree.)
    (June 2, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 160 (e), 160 (i).
    Although Section 20 of Act No. 20 of 1914, as amended by Act 38 of 1918, allows a judgment to be modified after a year, it' does not allow a modification after the judgment has been fully paid.
    2. Louisiana Digest — Judgment—Par. 296, 304.
    Article 2130 of the Civil Code provides that obligations are extinguished by payment and a judgment is one of the obligations .contemplated.
    3. Louisiana Digest — Master and Servant —Par. 154.
    Section 18 of the Workmen’s Compensation Act No. 20 of 1914 makes judgments under the Act have the same ■ force and effect as other judgments. Therefore, a judgment already paid is extinguished and cannot be modified.
    Appeal from the Seventh Judicial District Court of Louisiana, Parish of Concordia. Hon. R. M. Taliaferro, Judge. •
    Action by Harrison A. Sweeney against I Black River Lumber Company. I

      There was judgment for plaintiff and plaintiff asked to have judgment increased after the judgment had been satisfied.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    G. P. Bullís and J. M. Reeves, of Vidalia, attorneys for plaintiff, appellant.
    Dale, Young & Dale, of Vidalia, attorneys for defendant, appellee. .
   ODOM, J.

The plaintiff, as an employee of the defendant, received an injury to his back during the course of his employment on July 31, 1920. Failing to reach an agreement of settlement with his employer for compensation, he brought suit under the Workmen’s Compensation Act and under a final judgment by the Supreme Court was awarded $16.00 a week for a period of 300 weeks for temporary total disability. (See Sweeney vs. Black River Lumber Co., 150 La. 1061, 91 South. 511.)

Under this judgment compensation was paid him for the full period of 300 weeks, the last payment being made in December, 1924.

Four months later, on April 27, 1925, he brought the present suit, reciting the above facts and alleging that whereas the court had found that he was only temporarily totally disabled, as a matter of fact his injuries had proved to be permanent instead of temporary, and he prayed that:

“The court review said judgment of said Tenth District Court, as revised and rendered by the said Supreme Court of the State of Louisiana, and that the amount of said judgment be increased by awarding to petitioner compensation at the rate of $20.00 per week for one hundred weeks, in addition to the compensation awarded in said judgment.” ,

Defendant plead the former judgment as res adjudicata and tendered an exception of no cause of action, which was sustained by the court below, and plaintiff appealed.

OPINION

In plaintiff’s petition in the present suit, paragraph “4”, he alleged that:

“Said Black River Lumber Co. has paid sum of $16.00 per week to petitioner according to said judgment for said period of three hundred weeks, the last payment being made in the month of December, 1924, and refuses to pay any.'further sum, although petitioner has made amicable demand upon them for further sums.”

Section 20 of Act 20 of 1914, as amended by Act 38 of 1918, reads as follows:

“That a judgment of compensation may be modified at any time by subsequent agreement between employer and employee or his dependent, with the approval of the judge of the court that rendered the judgment sought to be modified, or any time after one year after said judgment of compensation shall have become operative, it may be reviewed by the judge of the court that rendered the judgment sought to be modified upon the application of either employer or employee, on the ground that the incapacity of the injured employee has subsequently diminished or increased, such increase growing directly out of the injury for which compensation has been allowed. In such case the provision of paragraphs 1 and 3 of Section 9 with reference to medical examination shall apply.”

Counsel for plaintiff contend that the clause of the statute reading:

“Or any time after one year after said judgment of compensation shall have become operative, it may be reviewed by the judgment of the court that rendered the judgment sought to be modified,”

should be interpreted to mean that the judgment may be reviewed and modified by the court at any time, even though it has been fully complied with by the employee, on the one hand, receiving, and the employer, on the other hand, paying, all the compensation therein provided for. In other words, that either party may have the judgment reviewed and modified after it has been fully paid and satisfied.

Counsel stressed in oral argument before the court and in brief the fact that the act provides that the judgment may be reviewed at any time after one year and argue that the language of the statute is clear and unambiguous and that the court must construe it literally.

The patent and fatal error into which counsel have fallen is that they have overlooked the fact that once a judgment has been paid and fully satisfied according to its terms it becomes extinguished, a dead thing, and is no longer a judgment in the sense that a judgment fixes and finally establishes the rights and obligations of the parties thereto.

Counsel argue that a judgment once rendered always exists. That is true, of course’ with reference to the sheet of paper on which it is written; but the rights and obligations of the parties, as fixed and established by the court, may and do, under certain conditions, cease to exist.

A judgment, in law, is not the scrap of paper on which the decree is written. It means, according to Lord Coke, “the very voice of the law and .right”; it is a “settled adjudication of an existing debt”, the “action of the court ascertaining some act to be done or forborne by a party”; and, as said by a New York court:

“Is an adjudication of the rights of the parties in respect of the claim involved.”

In the case of Schulhoefer vs. City of New Orleans, 40 La. Ann. 512, 4 South. 494, the court quoted from the case of Succession of Anderson, 33 La. Ann. 581, as follows:

“A judgment has been defined to be the decision or sentence of the law, pronounced by a court of competent jurisdiction upon the matter contained in the record * * *. It is a fiat of a court settling the rights of the parties, * *

The written instrument, therefore, usually referred to as a “judgment” is nothing more than a statement or the evidence of the court’s fiat or decree fixing the rights of one of the parties and the obligations of the other.

Therefore, when the rights and benefits, as fixed by the court, of one of the parties have been accepted, and the obligations of the other have been discharged, the judgment of the court ceases to exist.

In the case at bar, the court found that plaintiff was entitled to receive from defendant compensation at $16.00 per week over a period of 300 weeks and it fixed and established defendant’s obligation to pay the same. Defendant did pay and plaintiff did receive and accept, without further protest, those payments through the entire period as fixed by the court.

When defendant made the last payment, its obligation to plaintiff, as fixed by the court, was fully satisfied, and at that moment the judgment ceased to exist and became a dead thing.

Article 2130 of the Civil Code provides that: .

“Obligations are extinguished:
“By payment.
“When the law speaks of a right or obligation as ‘extinguished’ it means that it is put out, taken away, destroyed.”

Words and Phrases, Vol. Ill, page 2621.

Webster’s International Dictionary defines the word “extinguished” in law to mean:

“To render legally non-existent, to destroy or render void; to nullify, to avoid, as by payment, set off, termination of action, merger of an interest in a greater one.”

Payment of judgments extinguishes them and there is no resurrection for extinguished obligations.

Johnson vs. Boice & Frellsen, 40 La. Ann. 273, 4 South. 163.

Bank vs. Cage, 40 La. Ann. 138, 3 South. 721.

“The payment and satisfaction of a judgment operates to extinguish it and to put an end to its vitality for all purposes whatsoever and also to extinguish the original debt or claim, except where the satisfaction was obtained wrongfully or fraudulently.”

23 Cyc. 1495.

When the plaintiff went into court on April 27, 1925, and sought to have the old judgment reviewed, that judgment had been dead four months. There was, therefore, nothing for the court to review.

It is clear to us that the provision in the Workmen’s Compensation Law to the effect that the judgment may be reviewed at any time after one year means that it may be reviewed during the life of the judgment and not after it has been extinguished by payment.

According to the language of the Act, Section 18:

“The judgment rendered by the court shall have the same force and effect and may be satisfied as other judgments of the same • court.”

In a Minnesota case, Integrity Mutual Casualty Co. vs. Nelson, reported in 183 Northwestern 837, it was held that a lump sum settlement under the Minnesota Workmen’s Compensation Act, entered into by the parties and approved by the court, and paid by the employer, in the absence of fraud or deception is final and not open to readjustment.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.