Helluin v. Maurin

8 La. 111 | La. | 1835

Martin, J.,

delivered the opinion of the court.

This is an action by the parish treasurer for the parish of Assumption, against the defendant, who is sheriff of the same parish, to recover from him the amount of certain taxes on suits, which the law requires the sheriff to collect and pay into the parish treasury. The plaintiff had judgment for the sum of four hundred and forty dollars from which the defendant appealed.,

in this court the counsel of the defendant contends that the act of 1823, section 3, 1 Moreau's Digest, 627, which imposes this tax, requires, indeed, that the sheriff shall collect and pay it into the parish treasury; but the 5th section points out the mode of recovery from him, in case of failure to pay, viz: on motion of the district attorney in any court of competent jurisdiction; and further, that the tax is imposed for the benefit of the parish, which is" represented by the police jury, which is a corporation established by law, and its members are the trustees or directors to manage the concerns of the corporation, of which the parish is constituted.

The parish treasurer, although authorised to receive all monyes due to the parish, is not the proper person to sue or to be sued in re.gard to parish claims. A judgment rendered in a suit in which the parish treasurer is plaintiff or defendant (if he be not expressly authorised), will not be res judicata against or in favor of the parish, in its corporate capacity. The parish treasurer should be expressly authorised to institute suit, in order that the corporation be, bound by. whatever judgment is rendered in the case.

On the other hand, the appellee urges that the summary mode of recovery on motion is only cumulative, and does not prevent a resort to the ordinary remedy by petition. He also contends that the plaintiff sues as parish treasurer, and the case is the same as if the parish had sued by its treasurer.

The office of the parish treasurer, ex vitermini, authorises the incumbent to receive all moneys due to the parish, but it does not necessarily authorise and require him to represent the parish corporation in court, either as plaintiff or defendant, so as to render a judgment in any suit he may see fit to institute for money due to the corporation, as res judicata against it. He ought to be expressly authorised to institute suit, in order that the corporation be bound by whatever judgment should be rendered.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversedand that judgment be entered for the defendant, as in case of non-suit, with costs in both courts.