City of New Orleans v. Ryman

• Decision Date: 11 April 1955
• Docket Number: No. 20478,20478
• Parties: CITY OF NEW ORLEANS v. Paul M. RYMAN.
• Court: Court of Appeal of Louisiana — District of US

Page 573

79 So.2d 573

CITY OF NEW ORLEANS v. Paul M. RYMAN.

No. 20478.

Court of Appeal of Louisiana, Orleans.

April 11, 1955.

Rehearing Denied May 9, 1955.

Henry B. Curtis and Edgar Corey, New Orleans, for plaintiff and appellee.

William J. Daly, New Orleans, for defendant and appellant.

McBRIDE, Judge.

Paul Ryman owns the building 2810 Napoleon Avenue in which there are twenty-four dwelling or housing units. The City of New Orleans sued out an injunction against Ryman restraining him from using the premises for more than four apartments and dwelling units designed for and occupied by four independent families. In its petition for the injunction the city alleged that the defendant had violated the provisions of Ordinance 11,302, C.C.S., as amended, Section 4(2) of which prohibits any building or premises in the area in which Ryman's property is located, from being utilized for multiple dwellings designed for or occupied by more than four families. On the trial of the case the evidence showed that twenty-four different tenants occupied the twenty-four rental units and that thirty-seven adults and eight children were housed in the building. Defendant took a suspensive appeal from the judgment to the Supreme Court of Louisiana which, finding that it had no jurisdiction, transferred the appeal to us. See 225 La. 1092, 74 So.2d 386.

We find it unnecessary to pass on any of the issues in the case for the reason that while the matter was pending on appeal the City of New Orleans saw fit to amend and re-enact Ordinance 11,302, C.C.S., by adopting Ordinance 18,565, C.C.S.

Of course, Ordinance 18,565, C.C.S., is not before us because when the case was tried below that ordinance was not in existence and therefore, it does not form part of the evidence in the case. It is conceded by counsel for both parties that Ordinance 18,565, C.C.S., supersedes the prior ordinance, and we believe we are privileged to take cognizance that there is such an ordinance as the fact is not denied. City of New Orleans v. Metropolitan Bank, 44 La. Ann. 698, 11 So. 146.

It likewise seems to be conceded that Ordinance 18,565, C.C.S., changes the classification of the district in which 2810 Napoleon Avenue is located to what is termed M-2 Medical Service District, and the provisions of Section 2(1) of Article XIII of the ordinance authorize multiple family dwellings without limitation as to number within such district.

It also seems to be conceded that the defendant, under the provisions of the latest ordinance, may rightfully operate more than four apartments; the City Attorney does not deny that defendant, depending on the extent of the ground area his building occupies, is authorized to maintain as many as nine apartments.

So, therefore, there is before us an injunction which prohibits the defendant from maintaining more than four apartments in his building, while under the prevailing ordinance he might have the absolute right to maintain a greater number than four, if not all twenty-four. We cannot tell. Therefore, it seemingly would be anomalous to perpetuate the injunction by affirming the judgment thus enjoining the defendant from doing an act which he might legally do because of the change in the ordinances above mentioned.

It is well settled that if the law on which a judicial proceeding is founded is repealed or superseded by a statute enacted while the proceeding is pending in court, the proceeding is thereby abated. Todd v. Landry, 5 Mart., O.S., 459, 12 Am.Dec. 479; State v. Johnson, 12 La. 547; Cooper v. Hodge, 17 La. 476; Frey v. Hebenstreit, 1 Rob. 561; Doss v. Board of Commissioners of Mermentau Levee District, 117 La. 450, 41 So. 720; Hymel v. Central Farms & Shipping Co., Inc., 183 La. 991, 165 So. 177; Western Union Telegraph Co. v. Louisville & Nashville R. Co., 258 U.S. 13, 42 S.Ct. 258, 66 L.Ed. 437; United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763, 89 A.L.R. 1510.

However, we believe, in view of the circumstances surrounding the case the matter should be remanded to the district court for the purpose of receiving...