81 So. 259 | La. | 1918
Lead Opinion
On Motion to Dismiss Appeal and on Motion to Transfer Case to Court of Appeal.
Albert S. Burns instituted executory proceedings on a promissory note ■signed by William S. De Brueys, for §400, less a credit of §300, secured by a mortgage and vendor’s lien on certain property bought by De Brueys from one W. B. Lancaster, The property was seized and advertised for sale to satisfy the balance due on the note. De Brueys then instituted the present suit against Burns, Lancaster, and the sheriff, and obtained a writ of injunction, without bond, preventing the sale, on the allegation that the-debt had been paid and extinguished. He had bought the property from Lancaster for §4,100, paying §100 in cash and giving his ten promissory notes for $400 each, for the purchase price; the note foreclosed on by Burns being one of the ten. He alleged that he had intended to sell off the land in lots and apply the proceeds to the payment of the mortgage notes held by Lancaster ; that subsequently he had entered into a verbal agreement with Lancaster that the latter would take charge of the sale of the lots as his (De Brueys’) agent, for a commission of 10 per cent., and apply the net proceeds to the payment of the debt due Lancaster ; that the latter had, according to the alleged agreement, sold more than 400 lots, at prices ranging from §36 to §48 each, and had thereby collected more than was due him. He alleged that he did not know how much Lancaster had realized from the sales, as the latter would not render him an account; that Lancaster was yet the owner of the note foreclosed upon, Bums being only interposed as plaintiff in the executory proceedings to shield Lancaster; and that, if Burns had, as he had alleged, acquired the note from Lancaster, it was after maturity and with full knowledge that the debt had been extinguished. Plaintiff alleged, finally, that Lancaster had, by violating his verbal agreement regarding the sale of the lots, by threatening plaintiff with criminal prosecution to coerce him into making a retrocession of the property, by refusing to render an account and cancel the notes, and by the attempt to foreclose on a note that had been paid, caused damages to plaintiff in the sum of §15,000, for humiliation, embarrassment, and injury to his credit and reputation, etc.
The prayer of the petition was for a judgment against the three defendants, perpetuating the writ of injunction and ordering the mortgage and vendor’s lien canceled, and the note returned to plaintiff, and for an accounting by Lancaster and a judgment against him for whatever sum might be shown to be due plaintiff, in addition to the §15,000 damages.
The plaintiff in the injunction suit, alleging that Lancaster had in his possession certain books, records and documents, that would show an indebtedness due by Lancaster to plaintiff, for sales of lots, far in excess of the mortgage debt due by plaintiff, obtained a writ of subpoena duces tecum, ordering Lancaster to produce the books, records and documents. Lancaster answered under oath that he had no such books, records or documents. On the traverse of his answer, judgment was rendered against Lan
The defendants Burns and Lancaster prosecuted an appeal to the Court of Appeal. The judges of that court, finding that the amount in contest exceeded $2,000, exclusive of interest, on their own motion, ordered the appeal transferred to this court. The clerk of the Court of Appeal sent up, in lieu of a transcript of appeal to this court, the original documents that had been sent from the district court to the Court of Appeal. No transcript being required by law for the appeal to the court of appeal, none had been made. The clerk of the Supreme Court returned the Original documents to the clerk of the district court, with instructions to send up a transcript of appeal. No return day, or time limit for filing the record in the Supreme Court, had been fixed in the order of the Court of Appeal transferring the case to the Supreme Court, and no return day or time limit was fixed in the order of the Supreme Court directing the clerk of the district court to send up a transcript of appeal.
The plaintiff, appellee, moved for a dismissal of the appeal, on the grounds: First, that there was an unreasonable delay in filing the transcript, the delay being more than four months from the date of the order directing the clerk of the district court to make and send up the transcript; second, that the appellants did not declare on oath that their appeal to the Court of Appeal was not taken for the purpose of delay, as was required by the Act No. 56 of 1904, as a condition precedent to the transfer of an appeal ;■ and, third, that the transcript was incomplete, in that it did not contain certain depositions that were introduced in evidence.
The appellants moved to have the case sent back to the Court of Appeal, on the theory that the demands of the plaintiff in the injunction suit were reconventional demands, or incidental demands, urged in answer to the executory proceedings. They invoke the provisions of article 95 of the Constitution, that, in all eases where there is an appeal from a judgment rendered on a reconventional demand or other incidental demand, the appeal shall lie to the court having jurisdiction of the main demand.
Opinion.
The clerk of the district court, who made and forwarded the transcript of appeal to this court, certified on oath that the delay was not due to any fault or laches on the part of the appellants, but was due to his inability to procure from the clerk of the Court of Appeal a copy of the order of that court transferring the case.
There would be no justice in making the appellants suffer a dismissal of their appeal because of a delay, for which they were not at all responsible, in the filing of the transcript of appeal. The law requires the district courts, in fixing the return day of an appeal to the Supreme Court, to allow not less than 15 nor more than 60 days. But that has no application to the transfer of a case
The clerk of the district court has, since the motion was filed to dismiss the appeal, sent up a supplemental transcript containing the depositions that were omitted from the original transcript.
The motion to dismiss the appeal is therefore overruled.
In Koch v. Godchaux, 46 La. Ann. 1382, 16 South. 181, cited by appellant, the defendant in the executory proceedings, availing himself of articles 738, 739 and 740 of the Code of Practice, obtained an injunction by way of opposition to the original proceedings. It is true he alleged that the plaintiff was only an agent of the original mortgagee, and asked for a judgment against the alleged agent as such; but he did not make the original mortgagee a party to the suit, and it was held that, under the circumstances, the only matter in dispute was the right of the original plaintiff to proceed with the foreclosure of his mortgage notes, the amount of which determined the jurisdiction of the court.
The other decisions relied upon to sustain the contention that the demands of the plaintiff in this suit against Lancaster are only reeonventional demands are also inapplicable. In Rowlett v. Shepherd, 4 La. 86, for example, the ruling was merely that the plaintiff in a foreclosure proceeding via executiva, against whom an injunction was obtained without bond, on one or some of the grounds enumerated in article 739 of the Code of Practice, could compel the defendant to prove summarily the truth of his allegations, even though the latter had obtained the writ of injunction in a separate suit, instead of by opposition to the executory proceedings. In Hozey, Sheriff, v. McDougall et al., 15 La. 353, the defendant in the executory proceedings obtained a rule on the plaintiff to show
The motion to dismiss the appeal and the motion to have the case sent back to the Court of Appeal are both overruled.
On the Merits.
Under those circumstances, it was not necessary for Lancaster to take an appeal, to reserve his rights, until a final judgment was rendered against him.
Before the judgment was rendered, taking pro confesso the allegation sought to be proven by the alleged hooks and records, Lancaster filed, and the judge overruled, an exception of no cause of action. In overruling the exception, the judge reserved to Lancaster “the right to object to any evidence touching that point on the trial of the case.” We assume that the point referred to was that the plaintiff’s suit was founded upon the allegation that he had given Lancaster a verbal procuration to sell his (plaintiff’s) property ; whereas a procuration to sell real estate must be evidenced by writing. The defendants promptly urged the objection again, to any evidence whatever, when the plaintiff attempted to prove his case. And the objection was then improperly overruled, on the ground that it referred to the effect of the evidence.
There is no proof, however, even of a verbal contract for the sale of the lots. On the
The objection urged to all of that evidence was that the plaintiff’s suit could not be maintained on an alleged verbal contract for the sale of his real estate. And the objection should have been sustained. The only document offered in evidence, however, that proved anything, was the judgment taking for confessed the allegation that Lancaster had sold lots from the Chinchuba property and had collected therefor more than the amount due him for the land he had sold to plaintiff. That did not prove that Lancaster had sold lots belonging to the plaintiff, under a verbal procuration; for that seems practically and legally impossible. Besides, the record discloses that Lancaster owned Cinchuba property adjacent to the tract he had sold to plaintiff and was selling lots of his own.
Regardless of the exception of no cause of action, and the objection to the admissibility of proof under the pleadings, our opinion is that the evidence, does not sustain the plaintiff’s demand. Lancaster denied that he had made a verbal agreement to sell the land as plaintiff’s agent, and plaintiff did not contradict the statement. On the contrary, plaintiff proposed to Lancaster, in a letter dated January 11, 1916, that he (plaintiff) would retrocede the unsold land to Lancaster and make arrangements to pay for what he had already sold. It appears, too, that Lancaster accepted the proposition and that the plaintiff afterwards refused to carry it out. If Lancaster did, as plaintiff charges, sell lots belonging to plaintiff without written authority, the latter has lost nothing. His title is not impaired, and he is as free as he ever was to dispose of his property as he sees fit. All that Lancaster is asking is that plaintiff pay the balance due on the purchase price of the land. And, putting aside, as not provable, any and all verbal agreements for the sale of the land, surely Lancaster is entitled to be paid the price of the land, the title to which stands yet in the name of the plaintiff or his transferees.
The judgment appealed from is annulled, and it is now adjudged and decreed that the writ of injunction be dissolved and that plaintiff’s demands be rejected and his suit dismissed at his cost.
Rehearing
On Application for Rehearing.
This case seems to have been submitted on the trial below largely upon the assumption by the plaintiff of the correctness of the judgment of the lower court in allowing plaintiff the entire relief prayed for on hearing of a rule for a subpoena duces tecum. That ruling was manifestly erroneous, and, but for it, plaintiff would no doubt have attempted to prove his case in a proper manner.
It is therefore ordered that the rehearing prayed for by plaintiff be and the same is