Gathe v. Broussard

The opinion of the court was delivered by Nicholls, C. J. Broussard and Martin are before this court simply as appellees in the matter of the appeal taken by Hiriart and Barker, They have filed no answer and asked no change in the judgment against them in favor of the appellants. The only issue therefore before the court is whether the judgment of the District Court rejecting Hiriart and Barker's demand for damages against Broussard and Martin be correct or not. (See the case of Talle vs. Monasterio, 48 An. 1233.) Appellants ask that we pass upon the question whether the prop-’ erty involved in this suit be situated in the parish of St. Martin or in the parish of Iberville, but that question was not a direct or substantive issue in the case; it was only incidentally before the lower court in connection with the issue before it, which was as to whether the title to Broussard and Martin, under a tax sale in St. Martin parish in enforcement of a tax assessed there in the name of James D. Denegre, was legal or not. When the issue with which it was connected was disposed of the incidental question disappeared from the case. There are no rights of the parties dependent upon an adjudication upon it and we scarcely think its consideration would have been necessary, even had the legality of the tax sale itself been brought before us for decision. An examination of the record in this case discloses nothing which, [318] in our opinion, calls for a reversal of the judgment of the District Court upon the question of damages as being justly demandable by Hiriart and Barker from Broussard and Martin. Broussard and Martin bought the property in litigation at public auction at a tax sale. They subsequently sold it to Gathe, the plaintiff in this suit. The latter took possession under his purchase and through his employees, deadened and cut down a considerable quantity of timber upon the land. When so engaged Hiriart and Barker brought an action against him claiming ownership of the land, as well as that of the timber which had been cut. The pleadings filed by them in that suit are copied in this record, but those of the defendant Gathe have not been produced. The judgment in the case was in favor of Hiriart and Barker against Gathe, decreeing the land in question, and also the timber which had been cut, to belong to them. The present suit followed. Broussard and Martin’s whole connection with the property seems to have consisted in their having purchased it at tax sale and subsequently sold it to Gathe, and in their having brought Hiriart and Barker into the present suit as parties. They should not have been called into the suit. Though the question of title to the property was, as between Gathe and his vendors, left open incidentally to inquiry in determining the personal responsibility of the latter in warranty, for the reason that they had not been notified by him of the suit brought to evict him (C. C. 2517, 2518), the issue as to the ownership of the land had been definitely disposed of by the judgment in the action between Gathe and Hiriart and Barker. Brous - sard and Martin could not reopen it in the present suit. Hiriart and Barker should have insisted at once that the matter had, so far as they were concerned, been closed by the judgment in their favor, and declined in the premises any further investigation into their rights. We think, however, that Broussard and Martin acted in perfect good faith in making them parties, under the impression that not having been direct parties to the suit in which the judgment had been rendered, the question of the title was still at large open to inquiry by themselves, contradictorily with the plaintiffs in the first action. We do not think they are chargeable in favor of Hiriart and Barker with attorney’s fees. Even if they were, the record would not have furnished us evidence upon which we could fix the amount of such fees. It is true that when testimony has been taken upon that subject, courts are not only authorized, but it is [319] their duty to bring to bear their knowledge of the value of the services of counsel from an examination of the record in which they were rendered, but they will not and should not, where no evidence at all has been taken, attempt to fix such value, even by consent and request of litigants. State ex rel. Abraham vs. Judges, 45 An. 889. Finding no error in the judgment appealed from, it is hereby affirmed.