Pearce v. State ex rel. Breazeale

On Motion to Dismiss. The opinion of the court was delivered by Breaux, J. The appellees filed a motion to dismiss the appeal. They allege as facts upon which the motion is founded that the record shows that judgment was entered in chambers on December 30, 1896. On the same day the appellant filed a petition for an appeal and prayed “that a suspensive and devolutive appeal be granted from the judgment rendered in said above cause, returnable on the second Tuesday of January next, the twelfth day of said month.” The order of appeal, in conformity with the appellant’s prayer, made the cause returnable on the second Tuesday of January, 1897, the twelfth day of the month. The return day was not the second Tuesday but the second Monday of January. There was an error committed. Whether it is good ground to dismiss the appeal is the question for our determination. The act of the Legislature of 1839, relative to appeals, provides: “That hereafter no appeal to the Supreme Oourt shall be dismissed, on account of any defect, error, or irregularity in the petition or order of appeal, or in the certificate of the clerk or judge, or in the citation of appeal or service thereof or because the appeal was not made returnable at the next term of tbe Supreme Oourt, whenever it shall not appear that such defect, error or irregularity is imputed to the appellant; but in all such cases the court shall grant a reasonable time to correct such errors or irregularities (in case they are not waived by the appellee) and may impose on the appellants such terms and conditions as in their discretion they may deem necessary for the attainment of justice; and may impose such fine on the officer who shall have caused such irregularities as they may deem proportionate to the offence.” It is here argued by the appellees that the error was attributable to the fault of the appellant or his counsel. In Trimble vs. Brichta, 10 An. 779, cited by the appellees in support of their motion to dismiss, the motion for an appeal was made verbally and the court [645] said that as it was the duty of the judge in granting the appeal to fix the return day in accordance with the law and rights of the appellees, and as there was nothing in the record to show that the appellant suggested any particular return day the order of appeal was considered as the act of the judge and the appeal was not dismissed. In Citizens Bank vs. Ruty, 26 An. 747, the court said: In this case the appeal was made in writing and the time fixed for the return thereof by the judge was the day asked for by the appellants. If they erred the error is their own. A similar question arose on a motion to dismiss in the case of Chaffe & Sons vs. Heyner, 31 An. 574, in which the court held that where an application for appeal was made in open court, and the time for the return day made by the judge was in compliance with the motion of appellant’s attorney, it was none the less the act of the court and not the act of the attorney. While in this case the court did not overrule the 26 An. case ubi supra, it withheld its approval and used the following language with reference to the decision: “Perhaps we should not have ruled as the court then did.” In Wooton vs. LeBlanc, 32 An. 692, the court reached the conclusion that the error was attributable to the appellant, and dismissed the appeal. In State vs. Dollwood, 33 An. 1229, in matter of a similar error, it was held that it was the error of the judge. There is a diversity of views expressed in the different decisions upon the subject. There were dissents, which necessarily lessen the certainty of decisions as authority. Under the circumstances we feel at liberty to consider the question as res nova. The judge in signing the order was exercising one of the judicial functions with which he is entrusted. It is the judge who fixes the date. It was his act and not the act of the counsel by whom the motion was made for an appeal. We can not take it for granted that he was misled by counsel, and that he intended to issue another order and fix another date different from the date fixed. Whatever antagonism there may be between the law and the act. It is the act of the judge. The error committed is his error, until it conclusively appears that it was caused by the appellant. The order of appeal is one removed from the appellant. The order was that of [646] the judge, uninfluenced, in so far as we know, by the petition, or the order which was presented to him for his signature. There is, in our view, substantially no difference between a motion with an order fixing the return day and a petition with an order fixing a return day. In each, on the face of the papers, non constat that it is not the order of the judge or that he was misled. The motion to dismiss is therefore overruled. STATEMENT OF FACTS. Plaintiffs seek by an injunction directed against the execution of a writ of ft. fa. issued upon a judgment obtained by the State of Louisiana against Clifton Cannon, formerly sheriff and tax collector of the parish of Avoyelles, to restrain the execution of the judgment. We are informed by the record that the State, by confession of Cannon and the sureties on his bond, procured a judgment against them, with recognition of a mortgage on property described in the petition filed for the State, which included the plantation seized under the judgment enjoined; the judgment confessed rejected all pleas and right of discussion. Cannon, it appears, qualified as sheriff on the 23d of June, 1892, by furnishing bond as required, which was duly recorded. One of the bonds was dated and placed of record June 23, 1892; the other, March 10, 1893. It was upon these bonds that suit was brought and judgment obtained. Plaintiffs inherited the property seized from their mother, Mrs. Mary E. Bennett, wife of S. S. Pearce, Sr., who had purchased it from Cannon on April 13, 1893. The following are the grounds upon which is based the right for an injunction: 1. That the State was without right or power to sue a delinquent tax collector for levee taxes. And, in the alternative, should the court hold that the State can properly sue to recover levee taxes, and that the defaulting tax collector and his sureties can confess a judgment which recognizes the existence of a mortgage on the lands of the appellees, plaintiffs contend that the effect of the mortgage must be limited to the amount of the State taxes that are delinquent and not extended to cover delinquent levee taxes; for the reason that the tax collector’s bond, which alone gives rise to the mortgage, is conditioned only for the faithful performance of his duty in the [647] collection of and accounting for State and parish taxes; that the mortgage resulting from the recordation of the tax collector’s bond covers alone his delinquencies in the matter of State and parish taxes, and can not be extended so as to include levee taxes. In the second place, the plaintiffs urge as grounds for the injunction-that if payments had been properly applied by the Auditor there would have been a reduction of the shortage on all accounts, licenses, State and levee taxes, and that as to the levee taxes, the judgment for their amount should have been personal as against Oannon and without mortgage effect. Another ground of injunction denies the right of appellants to proceed against appellee’s property by direct seizure. Another ground is that the property was advertised to be sold under the writ of fl. fa. on the fourth Saturday, the 20th of June, and that there is no such day in the calendar, and lastly, that the judgment enjoined is, so far as these appellees are concerned, an absolute nullity, because it decrees mortgage rights against the property of the appellees upon the confession of persons who are strangers to the title, in a proceeding in which the appellees were not made parties. The injunction was maintained in the District Court. The State prosecutes this appeal. It is correctly alleged by plaintiffs that the amount of the levee taxes collected by Cannon, sheriff, and not paid over by him i^as four thousand nine hundred and ninety-one dollars and thirty-seven cents, and that this amount was included in the judgment which the State obtained against him on the petition in the suit in which Cannon and his sureties confessed judgment — i. e., the judgment enjoined in the case before us.