113 So. 459 | La. | 1927
Lead Opinion
Shortly before the maturity of the obligation, upon the application of one S.E. Bertoniere and a number of other persons, residents of the parishes of Pointe Coupee and West Baton Rouge, setting up certain rights in the fund, the depositary and the depositor were ordered to show cause by the judge of the district court why an injunction should not issue to restrain the depositary from paying over the amount represented by the certificate of deposit to the depositor or his assignee. The rule was tried on exceptions, six in number, filed by respondent Rev. Louis Savoure. Three of these exceptions were overruled, and three were maintained, viz. misjoinder of parties plaintiff, no right or cause of action, and that plaintiffs were without right to stand in judgment. The suit was dismissed, and from the judgment some 22 of the plaintiffs appealed devolutively, and their appeal is now pending in this court under No. 28288 of the docket.
On January 4, 1927, two days before its obligation became due, the Bank of New Roads instituted a proceeding in the district court, in which it impleaded S.E. Bertoniere and certain of his coplaintiffs in the injunction suit and the Rev. Louis Savoure. In its petition, the said bank referred to the aforesaid injunction suit, and averred that certain plaintiffs in said suit had served upon it an affidavit, purporting to be based on Act. 90 of 1926, in which they claim rights in the fund, and notifying petitioner not to pay it over to the Rev. Louis Savoure. The *1076 petitioner further averred that it was not desirous of assuming the responsibility of paying over the fund to the Rev. Louis Savoure upon the surrender of the certificate, nor, on the other hand, was it desirous of assuming the responsibility of refusing to honor the certificate when it was presented for payment at its maturity. Petitioner, accordingly, deposited the fund in the registry of the court, in order that the respective rights and claims of S.E. Bertoniere and his coplaintiffs and of the Rev. Louis Savoure might be judicially determined. The defendants filed their answers, and the case was tried, resulting in a judgment, rejecting the demands of S.E. Bertoniere and his associates, and ordering the clerk of court to pay over the fund to the Rev. Louis Savoure. Bertoniere and his codefendants in the suit appealed suspensively and devolutively from the judgment. The transcript was lodged in this court on February 24, 1927, and on the next day the Rev. Louis Savoure filed a motion to dismiss the appeal, on the ground that it is between the same parties and involved the same issues as the case of Bertoniere et al. v. Savoure, No. 28288 of the docket of this court, and which case, when decided, will determine all the rights of the parties; and on the further ground, that this appeal was taken solely for the purpose of delay and to deprive appellee of the use of the fund in the completion of the new church which is now under construction by him.
The motion to dismiss cannot prevail. The first ground urged by mover fails to disclose any defect, error, or irregularity in the taking of the appeal, or in the filing of the transcript in this court. Lavergne v. Roussel,
Appellee's objection that the appeal was taken merely for delay is no ground for its dismissal. Code Prac. art. 907; National City Bank v. Barringer,
The motion to dismiss the appeal is therefore denied.
BRUNOT, J., takes no part.
Addendum
The above suits are numbered, respectively, 268 and 378, on the docket of the Eighteenth judicial district court for the parish of Pointe Coupee, and have been consolidated for trial and decision in this court, as they grow out of the same subject-matter.
The petitioners in suit No. 268, Bertoniere et al. v. Louis Savoure et al., are residents of the parish of West Baton Rouge, and are affiliated members of the Roman Catholic Church of the Immaculate Conception of Chenal in the parish of Pointe Coupee.
Petitioners allege in this suit that they placed in the custody of the defendant the Rev. Louis Savoure, the pastor of their church, a lump sum of $16,500, contributed in money and labor by themselves, and by other members of the church not parties to this suit, and raised by "various means" including "church fairs"; that this sum was placed in the hands of defendant, with the distinct understanding and acquiescence on his part that the same should be used for building a new church at the present site at Chenal; that the fund has been deposited by defendant in the Bank of New Roads in said *1078 parish in the name of the "Roman Catholic Church of Chenal"; and that the bank has issued to defendant a time deposit certificate.
Petitioners allege that a call for bids for the construction of a brick church at Lakeland in said parish has been advertised by defendant, as the secretary and treasurer of the board of trustees of the Roman Catholic Church of the Immaculate Conception of Pointe Coupee, La., and that, unless restrained, the defendant will illegally deliver to said board the fund on deposit or the certificate therefor, and that said board will illegally divert and use said fund in the construction of the new church at Lakeland, and that immediate and irreparable injury, loss, or damage will result thereby to petitioners.
Petitioners allege their right to the issuance of a preliminary injunction, and pray that, after due hearing, the defendant the Rev. Louis Savoure be enjoined from indorsing and transferring the certificate of deposit to the board of trustees of the Chenal Church, and that the Bank of New Roads be restrained from paying to the defendant, or to any one by his order, the fund in dispute or any part thereof.
The exceptions of misjoinder of parties plaintiff, of no right or cause of action, and that plaintiffs have no right to stand in judgment, pleaded by the defendant the Rev. Louis Savoure, were sustained in the lower court. Plaintiffs' demands were rejected, and the suit was dismissed at their cost.
Twenty-two of the 217 original plaintiffs in suit No. 268 on the docket of the Eighteenth judicial district court have appealed from this judgment, and are seeking in this court to control the entire building fund of $16,500, which they allege was contributed by themselves, by the 195 members of the Chenal Church who have acquiesced in the judgment of the lower court, and by other members of the congregation not parties to this suit. *1079
The judgment appealed from was rendered August 2, 1926, and, as the appeal was devolutive only, the Rev. Louis Savoure thereafter attempted to withdraw this fund from the Rank of New Roads upon tender to the bank of the time deposit certificate. As the Bank of New Roads had been notified by plaintiffs in suit No. 268 of the rights claimed by them in the fund, the bank, on January 4, 1927, during the pendency of the devolutive appeal in suit No. 268, filed its petition in suit No. 378, Bank of New Roads v. Rev. Louis Savoure and S.E. Bertoniere et al., deposited the fund of $16,500 into the registry of the court, and prayed that plaintiffs in suit No. 268 be cited to assert whatever claims they might have to the fund, and that the respective rights of the parties thereto be duly adjudicated.
The petition of the Bank of New Roads was answered by only 22 of the original plaintiffs in suit No. 268, the injunction suit, who set up their claims to the entire fund.
The Rev. Louis Savoure also answered the petition of the Bank of New Roads, alleging that the fund was contributed in various ways by the people for the building of the new church, and averring that the refusal of the bank to honor the time certificate deposit presented by him was unwarranted and a violation of its contract with him.
Judgment was rendered in the bank's suit, No. 378, rejecting the demands of all of the plaintiffs in suit No. 268, made defendants in the bank's suit, No. 378, and dismissing their suit, and ordering the clerk of the court to pay over to the respondent the Rev. Louis Savoure the entire fund of $16,500 deposited in the registry of the court. From this judgment the 22 defendants, plaintiffs in suit No. 268, have appealed.
In our opinion, the exception of no right or cause of action, filed in the injunction suit, No. 268, Bertoniere et al. v. Louis Savoure et al., was correctly sustained. *1080
It is alleged in article VI of this petition in the injunction suit:
"That by individual and collective and faithful efforts on the part of your petitioners and othermembers of said congregation, and by personal contributions in large and small amounts of money andlabor made by petitioners and other members of saidcongregation, with the co-operation of Louis Savoure, at divers dates from June, 1921, to the year 1926, a fund aggregating the sum of $17,000 has been accumulated and intrusted to the custody of the said Louis Savoure, for the purpose of defraying in whole or in part the construction of said new church at Chenal, as aforesaid."
It is not averred in the petition that any one of the petitioners has made any specific and direct contribution to this fund, either in money or labor, or otherwise. It is not even alleged that the fund, as a whole, was contributed by petitioners.
Accepting the averments of the petition as true, for the purpose of disposing of the exception of right or cause of action, we are not advised as to the part of the fund contributed by petitioners, nor as to the part contributed by the other members of the congregation not parties to this suit. Whether the original petitioners constitute a majority or a minority of the members of the congregation of the Chenal Church is not disclosed by the petition.
It is also alleged by petitioners that the fund for the building of the new church at Chenal was raised by "various means," including "church fairs." As far as we are informed by the petition, this fund may consist very largely of the proceeds of fairs, entertainments, and various functions held and given for the benefit of the new church, and attended by strangers and the public in general, as well as by some of the members of the congregation of the Chenal Church.
It is evident that such vague and general allegations do not set forth a right or cause of action, as no actual and real interest in *1081 the fund is sufficiently averred by petitioners, or any of them, upon which may be predicated either the right to recovery of any specific sum or the right to the issuance of an injunction.
Under such indefinite allegations, petitioners; have no more right to control this fund than any other member of the congregation of the church of Chenal, or, as far as that is concerned, than any stranger or member of the general public, who may have attended church fairs, etc., and contributed in that way to the fund for the new church.
We cannot conceive how the appellants, a small minority of the original petitioners, can maintain successfully the legal right to tie up this fund in its entirety through the process of injunction.
In our opinion, plaintiffs' petition in suit No. 268 fails to disclose a right or cause of action, and plaintiffs' demands and suit were properly rejected and dismissed by the lower court.
The Joint answer of plaintiffs to the suit of the Bank of New Roads, No. 378, is mere reiteration of the vague allegations of the petition in the injunction suit, No. 268, with the single exception of the defendant Edmond G. Rougon, who claims specifically the sum of $1,000, alleged to have been donated by him on June 21, 1922, to the fund of $16,500, with 4 per cent. per annum interest, the rate of interest borne by the time deposit certificate.
Notwithstanding the specific claim of Rougon, we are of the opinion that the testimony of all of the defendants in the bank suit was properly excluded by the trial judge, for the reason that said answer or intervening petition does not disclose a right or cause of action.
It is true that Rougon alleges that he made the special donation of $1,000 for the Chenal Church benefit, to be used for that purpose only, and that respondent accepted same subject to that condition. *1082
But neither Rougon nor the other defendants have alleged in their joint answer that respondent has breached said condition by the actual use of the fund of $16,500, but merely aver thatrespondent is attempting illegally to obtain possession of the fund in controversy, and to use said fund for the purpose of defraying the cost, either wholly or in part, of the construction of the new church at Lakeland in the parish of Pointe Coupee. With the entire fund of $16,500 deposited in the registry of the court, there could have been no violation of the condition upon which the donations were made, when the answer was filed in this case.
"The donor may impose on the donee any charges or conditions he pleases, provided they contain nothing contrary to law or good morals." Civil Code, art.
"But if the conditions be potestative — that is, if the donee is obliged to perform them — the dissolution must be sued for and decreed judicially. Civ. Code, art.
Neither Rougon nor the other defendants demand, in their joint answer, the revocation or dissolution of the donations alleged to have been made, on the ground of nonperformance of the condition imposed upon the donee.
Nor do they pray, in their answer, for any restraining order against respondent because of the alleged illegal attempt on his part to obtain possession of the fund for the purpose of building the new church at Lakeland, instead of at Chenal in the parish of Pointe Coupee.
Under such a state of pleading, it is clear that the answer or intervening petition fails to set forth a right or cause of action.
In our opinion, the judgments appealed *1083 from in suits Nos. 268 and 378 on the docket of the lower court are correct.
Judgments affirmed.
BRUNOT, J., takes no part.
THOMPSON, J., concurs in decree.