STATE оf Louisiana, Through The DEPARTMENT OF HIGHWAYS v. Wilfrid T. HIGGINS
No. 310
Court of Appeal of Louisiana, Fourth Circuit
December 4, 1961
135 So. 2d 306
D. Ross Banister, Glenn S. Darsey and Jesse S. Moore, Jr., Baton Rouge, for plaintiff and appellee.
Polack, Rosenberg & Gex, Samuel I. Rosenberg, New Orleans, for defendant and appellant.
Before McBRIDE, REGAN and SAMUEL, JJ.
Plaintiff, the State of Louisiana, through the Department of Highways, instituted this suit to expropriate land owned by the defendant, Wilfred T. Higgins, for the purpose of constructing an approach to the Greater New Orleans Expressway located in Jefferson Parish. In conformity with the existing law1 title to defendant‘s property was transferred tо plaintiff by order of the court before the judgment and plaintiff deposited in the registry thereof $21,000, which it asserted was the fair value of thе land.
Defendant answered more than four months after the foregoing petition was filed and served, in which he insisted that the true value of the property was $28,750.00.
From a judgment in favor of plaintiff, predicated upon the fact that the defendant had waived his right to claim compensation in addition to the amount deposited by plaintiff in the registry of court since the defendant had failed to answer timely, he hаs prosecuted this appeal.
The record reveals that plaintiff instituted this action on September 14, 1956 and obtained an ordеr which compelled the defendant to transfer title to his property thirty days after being served with notice thereof, which occurrеd on September 17, 1956.
On October 2, 1956, defendant secured an order from the district court which granted him an additional fifteen days to answer. On Oсtober 26, 1956, defendant obtained another order which granted him an additional thirty days to answer.
On January 30, 1957, defendant procured a judgment on a rule which permitted him to withdraw the sum of $21,0002 that plaintiff
On February 7, 1957, defendant actually filed an answer to this suit.
On November 27, 1959, plaintiff ruled the defendant into court tо show cause why a final judgment should not be rendered since he had waived all defenses in that he failed to file an answer within thirty days after rеceiving notice of the expropriation. The rule was made absolute on January 27, 1961 and judgment was rendered as prayed for.
The only question which this appeal has posed for our consideration is whether the trial court properly interpreted the statutes applicable hereto, which authorize the state to acquire title to expropriated property before a final judgment is pronounced. These statutes read as follows:
LSA-R.S. 48:447 —“Contesting validity of taking; waiver of defenses.“Any defendant desiring to contest the validity of the taking on the ground that the рroperty was not expropriated for a public use may file a motion to dismiss the suit within ten days from the date the notice was servеd on him. * * *
“Failure to file the motion within the time provided or to serve a copy thereof on the plaintiff constitutes a waiver of аll defenses to the suit except claims for compensation.”
LSA-R.S. 48:450 —“Determining value where entire tract expropriated.“Where an entire lot, block or tract of land is expropriated, any defendant may apply for a trial to determine the mаrket value of the property expropriated, provided:
“(1) He files an answer within thirty days from the date he is served with the notice; * * *.”
LSA-R.S. 48:452 —“Laches by defendant forfeits defenses.“Failure of a defendant to file his answer timely or to serve copies thereof timely constitutes a waiver of all his defenses to thе suit.”
Counsel for the plaintiff simply contends that the rationale of the foregoing statutes support the trial judge‘s conclusion to the effect that defendant waived his right to seek additional compensation by failing to file an answer timely.
Defendant, however, insists that the right tо claim additional compensation is not one of the defenses contemplated by these statutes. He argues that the trial сourt‘s interpretation, if correct, renders the acts unconstitutional in that the defendant is thereby deprived of his property without due process of law.
We find no merit in either of defendant‘s contentions.
Further,
The law is clear that the due process requirement is fulfilled if the statute affords the landowner an opportunity to litigate the amount of compensation the state has tendered. Obviously, the defendant was afforded such an opportunity for a contest by virtue of the provisions of
In reaching the foregoing conclusion, we are fully cognizant of the fact that the trial court granted the defendant two extensions of time in which to file an answer, and incidentally, these periods of time actually expired before the defendant chose to reply to the suit. However, that fact is insignificant because the extensions were unauthorized by the statutory law. The court engaged in a futile gesture when it authorized a delayed answer, which was cleаrly forbidden by the legislature. The courts are interpreters not creators of the law. There exists no place in our Constitution for judiсial hegemony, to reason otherwise would result in chaos.
For the reasons assigned, the judgment appealed from is affirmed.
Affirmed.
SAMUEL, Judge (concurring).
I am in аgreement with the majority opinion with the single exception that I do not feel it necessary to pass upon the question of the trial court‘s authority to permit delays beyond that set forth in the statute. Therefore, I respectfully concur.