Tebbe v. Police Jury

Motion to Dismiss. The opinion of the Court was delivered by Poché, J. L. H. Pease, as transferree of three judgments against the parish of Jefferson, took a rule on the Police Jury, the Sheriff and the Assessor of that parish, with a view to compel the Sheriff and Assessor to levy and collect a tax sufficient to pay his said judgments, and defendant has taken the present appeal from a judgment in favor of plaintiff. Appellee moves to dismiss the appeal on the grounds: 1. That there appears to be no amount in dispute to give the court jurisdiction. 2. No note of evidence, statement of fact, or assignment of error, appears of record. 3. That the judgment appealed from, orders the sheriff to execute judgments previously rendered and final. 1. Prom the Record it appears to ns that the amount in dispute is the amount of taxes which, under plaintiff’s rule, must be raised to pay and satisfy the three judgments which he holds against the parish, and which amount together to $1376.59, exclusive of interests and costs, and to satisfy which amount plaintiff is seeking, by his proceeding, to obtain a levy of taxes. The fact that each of the judgments made the basis of his rule, is below five hundred dollars, cannot control the amount'thus shown to he in dispute. The junction of the three judgments together under [138] the. same rale is tlie act of plaintiff himself, and he cannot escape the consequences resulting from his own pleadings. A similar objection was urged and considered by us, and similarly disposed of in the case of the State ex rel. J. Fisk vs. Police Jury of Jefferson, left bank, opinion book 54, fo. 568. 2. The second ground of appellee’s motion is answered by a reference to the Record, which contains the certificate of the clerk, showing that the transcript in this case contains all the evidence adduced on the trial of the rule; which Record also contains an assignment of errors filed by appellant within ten days after the Record was brought ux>. This is unquestionably sufficient to give us knowledge of the matters argued or contested below. We are aware of no rule of law which requires more of an appellant, and appellee has referred us to none, or to no authority in our jurisprudence which goes to support his theory. 28 A. 815; 15 A. 420. 3. The third ground of his motion is answered by the mere fact of liis moving for a rule to compel the levy of tax for the purpose of satisfying his judgments, which could not be executed like ordinary judgments, by the issuance of a writ of fieri facias, but depend for their execution upon a judicial mandate, such as plaintiff was seeking to obtain under the proceeding complained of by appellant as being, in its present form, unwarranted by law. Such a plea certainly presents an issue which must be judicially determined, and which is a proper subject for review on appeal. The point raised by appellant is not affected by the authorities which he quotes in his brief, but is settled adversely to him, by our decision in the case of Fisk vs. Police Jury, hereinabove quoted, in which this identical issue, was reviewed and settled favorably to the right of appeal. The motion to dismiss is therefore denied at appellee’s costs. On the Merits. The opinion of tlie Oomt, was delivered by Levy, J. The same questions are involved in this case as in that of Fisk vs. same defendants, just decided by us, and the reasons given in that decision are applicable hereto. It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and it. is further ordered that the rule against defendant be dismissed. Appellee to pay the costs of both courts.