Denegre v. Mushet

The opinion of the court was delivered by Breaux, J. The testamentary executor of the late Henry Shepherd, claiming a preference under a mortgage, sued out a rule for the cancellation of certain mortgages appearing of record as first in rank and specially alleged that certain taxes were claimed as privileges in favor of the city of New Orleans and of the ‘State of Louisiana against the property seized, on which his mortgage bore; that these taxes, save those for the year 1892, were not due. An order issued to the present appellant, to the State Tax Collector for the First District of New Orleans, to the recorder of mortgages and the civil sheriff, to show cause why the mortgages and taxes should not be erased and the mover paid from the proceeds of sale in the sheriff’s hands, and it was further ordered that the sheriff in the meantime retain possession of the funds. Service of the rule was made on the city of New Orleans, the State of Louisiana, and on W. A. Gordon, the appellant. The sheriff and the recorder of mortgages were not notified. After legal hearing judgment was pronounced ordering the erasure of the mortgages and the payment of the proceeds as prayed for. William A. Gordon, one of the defendants in rule above, appeals» [92] In his petition for an appeal he prays that citation of appeal be served on the plaintiff in rule, and appellee and he alone has been cited to answer the appeal. . The appellee has moved to dismiss on the ground that the necessary parties have not been cited, and this through the fault of the appellant. During the trial of the rule in the lower court it was proven that a considerable sum was due for taxes on the property seized. The proposition that all parties to the record interested in maintaining the judgment must be made parties to the appeal, that all who are not appellants are appellees, and that all the appellees must be cited or the appeal will be dismissed, can not reasonably be controverted. The question arising on the motion to dismiss^relates exclusively to the interest of the Tax Collector and must be solved by reference to the possibility vel non of a decision on the merits affecting that interest in any manner. It is well settled in jurisprudence that no appeal will be dismissed unless the appellee shows that he is clearly entitled to that relief. The appellee on the trial below proved the amount of the taxes and showed that they had been paid. Upon that evidence the court a qua ordered the sheriff to pay the taxes due. It was a pro forma order, for they had already been paid. The mover and appellee has acquiesced in the judgment appealed from in so far as relates to taxes. The appellant has not contested their validity. The claim for taxes, and their payment, does not present a single issue to be decided. That matter is at rest. The State of Louisiana and the city of New Orleans in the matter of taxes have no interest in the success of the appellant or the appellee. The sheriff was the holder of the funds, and was ordered to pay the taxes. He is not a party to these proceedings. If the order to pay can be revoked at all it can be revoked only in proceedings contradictorily with him. His action in paying raises no issue. All parties acquiesce in the payment as made by him. The State and city of New Orleans are not placed under the neces [93] sity of proving the correctness of the judgment in accordance with which payment Was made. The motion therefore fails. Mr. Justice Parlange takes no part.