Durbridge v. State

• Decision Date: 18 June 1906
• Docket Number: 15,696
• Citation: 117 La. 841,42 So. 337
• Court: Louisiana Supreme Court
• Parties: DURBRIDGE v. STATE

42 So. 337

117 La. 841

DURBRIDGE v. STATE

No. 15,696

Supreme Court of Louisiana

June 18, 1906

On the Merits, November 12, 1906.

Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.

Action by William Durbridge against the state.Judgment for defendant, and plaintiff appeals.Motion to dismiss denied and judgment affirmed.

Girault Farrar, Gustave Lemle, Thomas Jones Kernan, and Hunter Collins Leake, for appellant.

Walter Guion, Atty. Gen. (Milton Joseph Cunningham and Lewis Guion of counsel), for the State.

OPINION

NICHOLLS J.

The Attorney General and counsel for the defense move for the dismissal of the appeal taken in this case on the grounds:

First.That the appeal was taken too late, more than a year having elapsed after the judgment was signed before the appeal was taken.

Second.The plaintiff, William Durbridge, having died since the appeal was taken, the appeal should be dismissed, as the suit cannot be revived in the name of the legal representatives.

In the brief filed on behalf of the plaintiff, it is stated that the judgment rejecting plaintiff's demand was rendered on the 17th of October, 1903, and on the same day the judge signed the judgment: that on the 19th of October, two days after judgment was signed, and therefore within the three judicial days given by law (articles 557, 558 Code Prac.) to a party litigant in which to apply for a new trial plaintiff filed his application for a new trial, that on the 23d of June, 1904, the district judge overruled the motion for a new trial.On the 28th of April, 1905, within a year from the day on which the motion for a new trial was overruled, plaintiff applied for, and was granted, a devolutive appeal, returnable to the Supreme Court on the 15th of May, 1905.The transcript of appeal was filed in that court on the return day.

"The question for decision is whether the year in which plaintiff had to take an appeal commenced to run from October 17, 1903, the day after the judge signed the judgment, or from June 23, 1904, the day the judge overruled the motion for a new trial.If from the former, the appeal was taken too late; if from the latter, it was in time."

"Article 545, Code Proc., declares that the judge must sign all definitive or final judgments rendered by him, but he shall not do so until three judicial days have elapsed to be computed from the day such judgment was given."

"Article 557 declares that the Court may revise their judgment by granting a new trial in the case hereafter provided.The party who believes himself aggrieved by the judgment given against him may, within three judicial days after such judgment has been rendered, pray for a new trial, which must be granted if there be good ground for the same, provided that said new trial be prayed for and passed before adjournment of court."

"Article 546 specially prohibited the signing of a judgment until after three judicial days had elapsed."

"Article 12 of the Civil Code declares that whatever is done in violation of a prohibitory law is null.The motion for a new trial having been overruled, that was the first day on which the judgment could have been legally signed.The judgment, therefore, as a matter of law, must be presumed to have been rendered on that day.Up to that day the signing was premature.Succession of Gilmore, 12 La.Ann. 625;Converse v. Bloom, 20 La.Ann. 555."

"The appeal was taken within a year from the day, and was in time."

The state maintains that the delay within which the year for an appeal runs is not suspended or interrupted by an unsuccessful motion for a new trial.CodePrac. arts. 567, 593;Smith v. Vanhille,11 La. 380;Mathison v. Field,3 Rob. 45;Knox v. Duplantier,21 La.Ann. 294;Hall v. Beggs,17 La.Ann. 238;Beaird v. Russ,32 La.Ann. 304;Beaird's Heirs v. Russ,34 La.Ann. 315;Acts 1898, No. 163, § 5.

On the second branch of the motion to dismiss, the counsel for the state maintains that the present suit was brought under a permission granted by ActNo. 67 of 1898, to Durbridge personally to do so; the act not providing that the right should descend or be transmitted to plaintiff's heirs or his estate.

That the privilege being in derogation of the state's sovereignty, it should be exercised only by those whom it was clearly intended should enjoy it.That the privilege is a personal one and died with the person to whom it was accorded.It was not transmissible.

Counsel cite 26 A. and E. Ency. of Law (2d Ed.)p. 487;Rose v. The Governor,24 Tex. 504;Asbell v. State,60 Kan. 51, 55 P. 338;Raymond v. State,54 Miss. 562, 28 Am. Rep. 382;Davis v. Neligh,7 Neb. 79;Bradford v. State,7 Neb. 109;State v. White,7 Neb. 113;State v. Lancaster County Bank,8 Neb. 218;Chicago, M. & St. P. Ry. Co. v. State,53 Wis. 509, 10 N.W. 560;Morgan v. Louisiana,93 U.S. 217, 23 L.Ed. 860;Pickard v. Tennessee R. R.,130 U.S. 637, 9 S.Ct. 640, 32 L.Ed. 1051;Phoenix Ins. Co. v. Tennessee,161 U.S. 177, 16 S.Ct. 471, 40 L.Ed. 660;Memphis & L. R. R. Co. v. Berry,112 U.S. 617, 5 S.Ct. 299, 28 L.Ed. 831;Bernard v. Noel,45 La.Ann. 1135, 13 So. 737;Succession of Durkin, 30 La.Ann. 669;Succession of Tugwell, 43 La.Ann. 879, 9[117 La. 846] South. 499;Walton v. Booth,34 La.Ann. 914;Chivers v. Rogers,50 La.Ann. 58, 23 So. 100;State v. Jacobs,50 La.Ann. 477, 23 So. 608.

Counsel say the title of the act, giving to plaintiff the right to sue, in its first section provides that:

"William Durbridge be permitted * * * to sue the state of Louisiana and to recover from the state the amount due him, or which may be adjudged as due him by the court taking cognizance of the suit.It nowhere provides for the prosecution of such a suit by, or for the account of, any other than William Durbridge."

On the Motion to Dismiss.

Article 192 of the Constitution of 1898 provides that whenever the General Assembly shall authorize a suit against the state, it shall provide in the act authorizing the same that such suit be instituted before the district court at the state capital; that citation to answer such suit shall be served upon the Governor and the Attorney General; that the Supreme Court of the state shall have appellate jurisdiction in such suit, without regard to the amount involved; that the only object of such suit, and the only effect of the judgment herein, shall be a judicial interpretation of the legal rights of the parties for the consideration of the Legislature in making appropriations; that the burden of proof shall rest upon the plaintiff or claimant to show that the claim sued upon is a legal and valid obligation of the state, incurred in strict conformity to law, not in violation of the Constitution of the state, or of the United States, and for a valid consideration, and that all these things shall be affirmatively declared by the Supreme Court before any judgment is recognized for any purpose against the state.

The second section of ActNo. 67 of 1898, granting William Durbridge the right to sue, is a copy of the article of the Constitution cited, mentioning the district court at the state capital as the court in which the suit should be brought.

It was the manifest purpose of the General Assembly to have the facts and merits of the claim investigated by the Supreme Court in order to guide it in action for or against the claim which it contemplated taking later.

To dismiss the appeal would be to defeat the object of the statute and deprive the General Assembly of the information which it seeks for purposes of its own to obtain.To maintain the appeal, and pass upon the issues involved in the case, would leave that body free to take such action as, in its opinion, judgment, and discretion, it would deem proper.

The second branch of the motion deals with the intention of the General Assembly in entering into the investigation.That question is one which the General Assembly rather than this court is the proper tribunal to decide.The duty delegated to us is to pass upon the claim, not upon the persons who may or may not be entitled to it.Any judgment which we might render in the case would leave that issue open.We are scarcely in a position to judge of the intentions of the General Assembly when that body is in existence, and that question is to be passed up by itself hereafter.

The same line of reasoning which impels us to maintain the appeal on the second branch of the motion, applies to the first ground for dismissal assigned, but we have no hesitation in saying, even if the case was one between private parties, that the motion would not prevail.We think the action of the district court in holding back for decision the motion for a new trial postponed to the date of the action on that subject the date from which the time for taking the appeal should run.It has several times been held that where a judge has refused to grant an appeal, and has only granted one at the end of a proceeding by mandamus to compel him to do so, the time intervening between the date of the application for an appeal and the order of appeal should not be counted in determining whether the legal time for the granting of the appeal has expired or not.The same rule should govern in a case like this.The litigant should not be made to suffer for the inaction of the judge."Actus curiae non gravabit."

The motion to dismiss is denied.

On the Merits.

The present action was brought by the plaintiff under an authorization granted him so to do by ActNo. 67 of 1898.

The act declares that he"'claims to own and hold' in his possession certain claims against the state of Louisiana based upon a certain alleged contract entered into by the state of Louisiana on the one part, represented by ...