97 So. 658 | La. | 1923
On Motion to Dismiss Appeal.
This is a suit to fix the eastern boundary of the property described in the peti
A supplemental petition was filed in the district'” court, substituting Mrs. Anna B. Davidson, individually and as executrix of Charles P. Davidson, Sr., deceased, as the parties plaintiff; the Davidsons having in the interim acquired all of the property of the Barataría Land Company which is involved in this suit. The supplemental petition also alleges that the Wisner Estate, Incorporated, is a necessary party to the suit, because Mrs. Mary Jane Wisner had acquired a certain described portion of the lands forming a part of the disputed boundary, ahd that Mrs. Wisner had sold said lands to the Wisner Estate, Incorporated. With these plaintiffs and defendants before the court, plaintiff applied to the court and secured the appointment of a reputable and experienced civil engineer to make a survey and to relocate the line dividing the lands of plaintiff from those of defendants, as it was originally established by Rightor & McCallom, the United States government surveyors.
After notice to the owners of the property and to the author of the Barataría Land Company’s title, a survey was made, and on March 6, 1922, the judicial surveyor, Mr. Prank T. Payne, filed a procés verbal and plan of the survey. A rule issued to show cause why the procSs verbal and plan of survey made by Mr. Payne should not be approved and homologated, and why the line fixed therein should not be decreed to be the true division line between the lands of the succession of Charles P. Davidson, Sr., and those of the defendants. Defendants accepted service of the rule, and a consent judgment was rendered thereon; the judgment decreeing the lines established by said proeSs verbal and plan of survey to be the correct boundary lines of said properties. This judgment was signed on March 18, 1922. On the 17th day of March, 1923, Dr. T. L. Wolfe, individually, and Dr. T. L. Wolfe and Grace G. Wolfe, administrators of the estate of Dr. John Wolfe, deceased, filed a petition in this suit, in the district court, alleging therein that the Barataria Land Company, the original plaintiff, acquired the property described in plaintiff’s original petition, without warranty, from Oscar D. Weed, and that Oscar D. Weed acquired the said described property from petitioners ; that as the author of Weed’s title appearers had an interest in the results of the survey and the location of the boundary line; that said interest was recognized by Prank T. Payne, civil engineer and surveyor, by notice to appearers that he would, on October 3, 1921, proceed to make a survey of said lands; that appearers had a representative present when the survey was made; that after the field work was completed appearers’ representative returned to Iowa, being first assured by Prank T. Payne, the judicial surveyor, that when the map showing the result of the field work was completed it would be submitted to him before filing it in court; that relying upon this understanding, and believing that when the proces verbal and. plan of survey was filed that it would correctly establish the lines in accordance with the original government survey, appearers did not secure counsel to guard their interests ; that they were not notified of the filing of the proeSs verbal in court, a.nd only obtained knowledge of the fact several months after the Consent judgment was rendered; that the line located in ’ the procés verbal and survey filed by Prank T.
Appellants applied for and obtained an order of this court consolidating the transcripts in the suits “Barataría Land Company v. Louisiana Meadows Co.,” No. 22081 of the docket of this court, and “Barataria Land Company v. Louisiana Meadows Co.,” No. 25,967 of the docket of this court, the consolidated suits to be considered as one suit, and to have the same effect as if both suits were included in one transcript.
The substituted plaintiff, the succession of Charles P. Davidson, Sr., represented by its executrix, moves this court to dismiss the appeal for the following reasons:
First. Because appellants have no pecuniary interest in the cause and there is no showing in the record that they have been aggrieved by the judgment.
Second. Because appellants were advised of the pendency of this cause in the lower court and they did not raise any issue or make any appearance therein.
Third. Because appellants are improper parties to this suit, either in the court below or in this court.
Fourth. Because appellants have no interest appealable or otherwise in the res or subject-matter of the judgment appealed from.
Fifth. Because there is no showing that the judgment was erroneous as between the parties or that appellants’ interest was affected thereby.
Sixth. Because appellants’ reliance is upon proof not before this court and the real purpose of the appeal is to delay proceedings in another court in which appellants are call-1 ed to respond to their warranty obligations,
Opinion.
The allegation and showing of a pecuniary interest that is affected by the judgment is the foundation of the right to an appeal. Louisiana Mut. Ins. Co. v. Costa, 32 La. Ann. 3; State ex rel. Doyries v. Yoist, 25 La. Ann. 397; Succession of Henderson, 2 Rob. 391; Ober v. Excelsior Planting & Mfg. Co., 44 La. Ann. 570, 10 South. 792; State ex rel. Byerly v. Judge of Eighth Dist. Court of New Orleans, 23 La. Ann. 768; Silverstein v. Stern, 21 La. Ann. 743; Fazende v. Flood, 24 La. Ann. 426; State ex rel. Pecot v. Parish Judge, of Parish of St. Mary, 27 La. Ann. 184; Rathbone v. Parish of St. James, 28 La. Ann. 324; Flagg v. Parish of St. Charles, 27 La. Ann. 319; State v. Belden, 17 La. Ann. 320; Succession of Edwards, 34 La. Ann. 216; McCoy v. Hunter, 3 Rob. 118; Keys v. Riley. 12 La. Ann. 19; Malone v. Her Husband, 10 La. Ann. 84; Compton v. Compton, 6 Rob. 156; Pillot v. Cooper, 7 La. Ann. 656; Masse v. Barthet, 2 Rob. 69; State v. Judge of Fifth Dist. Court, 31 La. Ann. 823; Succession of
The question which is presented to us, the decision of which will dispose of the motion to dismiss, is whether or not the record shows that the appellants have a pecuniary interest in the res or subject-matter of this suit, and whether or not they are pecuniarily aggrieved by the judgment appealed from. All other pleas made are merely incidental thereto, and are of importance only as aids in the consideration and decision of this decisive question.
It is shown that the Baratarla Land Company acquired the property from Oscar D. Weed, without warranty, and this deed recites that Weed acquired the property from the appellants for the Barataría Land Company, the original plaintiff in the suit. The deed from appellants to Weed is not in the record, and there is nothing in the record to show that Weed’s vendors warranted the title to him.
The case was before this court in 1920, and Chief Justice Monroe, in disposing of an exception of nonjoinder, which was considered in the opinion then rendered, says:
“As the purpose of the suit was merely to establish the boundaries between the land of the litigants, it was unnecessary, though it might have been desirable, to bring in parties whose rights are not sought to be affected, and cannot be affected, unless they are brought in.” 146 La. 999, 84 South. 334.
An examination of the record shows that the proceedings in the lower court were regular; that the procés verbal and plan of survey filed by Mr. Payne was accepted by the parties to the suit as the true boundaries of the properties; that all owners of property affected by the Payne survey were before the court; and that a consent judgment was rendered, approving the survey and fixing the lines established thereby as the true boundary between the properties of the plain
For these reasons the appeal is dismissed, at appellants’ cost.