Denegre v. Mushet

• Decision Date: 01 January 1894
• Docket Number: 11,360
• Court: Louisiana Supreme Court
• Parties: MRS. SYLVANIE B. DENEGRE v. DAVID MUSHET

14 So. 348

46 La.Ann. 90

MRS. SYLVANIE B. DENEGRE v. DAVID MUSHET

No. 11,360

Supreme Court of Louisiana

January 1, 1894

APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

W. S Benedict and Robt. G. Dugue, for Plaintiff in Rule, Appellee.

Guy M Hornor, for Defendant and Appellant.

WATKINS J. BREAUX, J. Mr. Justice McEnery, not having heard the argument, takes no part. Mr. Justice Parlange recluses himself, having been consulted as counsel.

OPINION

ON MOTION TO DISMISS.

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.

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 necessity of proving the correctness of the judgment in accordance with which payment was made.

The motion therefore fails.

Mr. Justice Parlange takes no part.

ON THE MERITS.

WATKINS J.

The plaintiff, under executory proceedings, caused the property of defendant to be seized and sold, and at the sale a sufficient amount was realized to pay his debt with interest and cost, and leave a surplus of $ 2691.14 in the sheriff's hands, same constituting the matter of controversy in this suit.

Contemporaneously therewith another executory proceeding was begun on a mortgage second in rank, under the title of Wm. A. Gordon vs. David Mushet, against the same property; and it was also seized under a fi. fa. under a judgment entitled Henry Shepherd vs. Fairchild & O'Brien et als., the defendant here being one of the parties defendant there.

Subsequent to the sale of the property, R. D. Shepherd, as testamentary executor of Henry Shepherd -- plaintiff in the suit and judgment last mentioned -- took a rule on Wm. A. Gordon, plaintiff in the executory proceedings above mentioned, the State Tax Collector, and the recorder of mortgages. For certainty of statement we have reproduced it from the brief of the counsel for Gordon, as follows, viz.:

"On motion of R. D. Shepherd, testamentary executor of Henry Shepherd, and on suggesting he is a judgment creditor of David Mushet herein in the sum of $ 6000, interest and costs, and that certain property belonging to David Mushet has been sold herein by plaintiff under a first mortgage.

And on further suggesting the following mortgages appear inscribed against said property prior to that of your mover, namely:

"1. One in favor of Wm. E. Huger, book 328, folio 591, for $ 1500, by act before Charles G. Andry, notary, on the 14th of May, 1887, and recorded on same day.

"2. One in favor of Wm. E. Huger, book 372, folio 325, for $ 1500, by act before Chas. G. Andry, notary, May 8, 1888, recorded on the 9th of May, 1888.

"3. One in favor of Wm. A. Gordon, book 372, folio 327, for $ 2500, by act of 9th of May, 1888, recorded 10th of May, 1888.

"4. And that certain taxes are claimed as privileges against said property as due and owing to the city of New Orleans and the State of Louisiana.

"And on further suggesting that said purported mortgages, two for $ 1500 each and one for $ 2500, are not due or owing by said property, or by said David Mushet, and the recordation of same in the mortgage office deprives your mover of his rights as first judgment creditor, to be paid out of the proceeds of sale after the payment of the first mortgage.

"And on further suggesting, said proceeds of sale amount to the sum of $ 11,525, in the hands of the civil sheriff of this parish, who threatens, unless stayed, to pay said purported mortgages.

"And on further suggesting that all taxes as against said property, save and except those for the year 1892, are not due or owing by said property.

"It is ordered by the court that William A. Gordon, the State Tax Collector for the first district of this city, the city of New Orleans, and the recorder of mortgages, the civil sheriff, do show cause on the 25th day of July, 1893, at 11 o'clock A. M., why said mortgages and taxes should not be erased and canceled, and why your mover should not be paid from the proceeds of sale in the sheriff's hands, to the extent thereof in the amount of the judgment as aforesaid, and that in the meantime the said sheriff do hold in his hands the said proceeds of sale after the payment of the first mortgage, for which said property was sold, to abide the further orders of the court."

It appears that notwithstanding all parties named except the sheriff were duly cited, only Gordon appeared and filed an answer, which is as follows, to-wit:

"First -- That said rule does not set forth why said mortgages are not due and owing by said property or by David Mushet.

"Second -- That said mortgages having been recorded more than two years before the judgment held by Henry Shepherd became final, the said testamentary executor of Henry Shepherd can not now contest the validity of the said mortgages.

"Third -- That the action of Henry Shepherd, or his executor, on his rule herein is prescribed, his action being limited by the articles of the Civil Code to one year from the time he obtained judgment against said David Mushet, and exceptor therefore pleads the prescription of one year in bar of the action of the plaintiff in rule herein.

"Fourth -- Exceptor pleads the prescription of five years."

During the progress of the trial, the plaintiff in rule filed the following plea of prescription, viz.:

"The plaintiff in rule, without admitting that the note of $ 1500, dated May 14, 1887, or the pretended mortgage which purports to secure it, ever had any legal existence, now says that if the same were valid originally, which is denied, the note is now prescribed and the mortgage extinguished.

"Wherefore, reserving all his other pleas and defences herein, the plaintiff in rule now pleads, under the express reservation herein contained, the prescription of five years against the said note and mortgage."

And after regular submission and argument the judge a quo rendered the following judgment, viz.:

"It is ordered, adjudged and decreed that the rule herein filed on July 19, 1893, by Rezin D. Shepherd, as testamentary executor of Henry Shepherd, be and the same is hereby made absolute; that the judicial mortgage of the late Henry Shepherd against David Mushet, recorded against the property herein sold, on May 23, 1890, in mortgage book 421, folio 20 has precedence over the mortgage granted by David Mushet in favor of Wm. E. Huger, on May 14, 1887, by act before C. G. Andry, notary public, to secure $ 1500, interest and costs, etc., recorded on the same day, and over the mortgage granted by the same in favor of the same on May 8, 1888, by act...