Franks v. City of Alexandria

• Decision Date: 22 March 1961
• Docket Number: No. 186,186
• Citation: 128 So.2d 310
• Parties: George FRANKS et ux., Plaintiffs and Appellants, v. CITY OF ALEXANDRIA et al., Defendants and Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 310

128 So.2d 310

George FRANKS et ux., Plaintiffs and Appellants, v. CITY OF ALEXANDRIA et al., Defendants and Appellees.

No. 186.

Court of Appeal of Louisiana, Third Circuit.

March 22, 1961.

Rehearing Denied April 12, 1961.

H. Alva Brumfield and Robert E. Turner, Baton Rouge, C. O. Brown, Alexandria, for plaintiffs-appellants.

Frank H. Peterman and B. Newton Hargis, by Frank H. Peterman, Alexandria, for defendants-appellees.

Before FRUGE , SAVOY and HOOD, JJ.

HOOD, Judge.

This is a wrongful death action instituted by George L. Franks and Lillie Mae Adams Franks against the City of Alexandria and the following officials and employees of said city: W. George Bowden, Jr., Mayor; S. J. Riche, Chief of Police; Samuel David Poe, Police Captain; and H. H. McManemin, Police Sergeant. Plaintiffs, the mother and father of Freddie Franks, allege that on March 29, 1958, Freddie Franks was arrested and taken into custody by police officers of the City of Alexandria, and that he died on June 6, 1958, as the result of injuries and mistreatment which he received while in the custody of the police officers.

An answer was filed by defendant H. H. McManemin, and the suit is still pending as to him. Exceptions of no right or cause of action were filed by all other defendants. These exceptions were argued and submitted, and judgment was rendered by the trial court on September 8, 1959, as shown by the following minute entry of that date:

'For reasons assigned in written Opinion of the Court this day handed down, judgment rendered overruling the exception of no right of action; judgment rendered sustaining exception of no cause of action as to City of Alexandria; judgment further rendered sustaining exception of no cause of action as to the defendants W. George Bowdon, Jr., S. J. Riche, and David Poe with the right reserved to plaintiff to file a supplemental and amending petition as to said defendants within 15 days from this date, otherwise the suit of plaintiffs as to defendants and exceptors is to stand dismissed as of non-suit. see opinion.'

On September 24, 1959, obviously in an attempt to amend in compliance with the judgment of September 8, plaintiffs filed a supplemental and amended petition amending some of the allegations in the original petition and naming as additional parties-defendant, John Watson, P. D. White, and M. L. Broussard, all of whom are alleged to be law enforcement officers, agents and employees of the City of Alexandria.

On September 30, 1959, a formal decree was rendered and signed by the trial court (1) overruling the exceptions of no right of action filed herein; (2) sustaining the exception of no cause of action as to that defendant; (3) decreeing that the petition, even as amended, fails to state a cause of action against Mayor W. George Bowden, and accordingly dismissing this suit as of non-suit against that defendant; and (4) decreeing that the supplemental and amended petition had not been filed within the time allowed by the judgment of September 8, and accordingly dismissing this suit as of non-suit against the defendants, S. J. Riche and Samuel David Poe. Plaintiffs have appealed from that judgment.

On the day the foregoing decree was rendered and signed an exception or plea of prescription of one year was filed in behalf of John Watson, P. D. White, and M. L. Broussard, all of whom were named as parties-defendant in the supplemental and amended petition. Since an appeal was taken from the judgment rendered on September 30, 1959, the exception or plea of prescription which was filed on that date has never been considered or determined by the trial court.

Several weeks after the appeal was lodged in this court, but before the case was argued or submitted, another plea of prescription of one year was filed in this court in behalf of the defendants, John Watson, P. D. White and M. D. Broussard. Also, before the case was submitted, plaintiffs filed in this court a motion to remand the case to the district court on the ground that the Legislature, by resolution, had authorized plaintiffs to institute this suit against the City of Alexandria. Attached to this motion is a certified copy of House Concurrent Resolution No. 67, adopted during the 1960 regular session of the Louisiana Legislature, purporting to authorize plaintiffs to institute this action against the City of Alexandria.

Plaintiffs contend primarily that the trial court erred in dismissing this suit as of non-suit against the defendants S. J. Riche and Samuel David Poe on the ground that plaintiffs' supplemental and amended petition was not timely filed. In the decree from which plaintiffs have appealed, the trial judge referred to the judgment rendered on September 8, 1959, as 'the written opinion filed herein on September 5, 1959.' It is apparent, therefore, that in rendering and signing that decree the trial judge was under the impression that he had allowed plaintiffs 15 days from September 5 to amend their petition, whereas he in fact had allowed them 15 days from September 8 to do so. Although the supplemental petition was filed on the sixteenth day after the first judgment was rendered, it is conceivable that the trial judge in his discretion may have permitted the amendments had he been aware of the correct date on which the original judgment was rendered.

In King v. Burris, La.App. 1 Cir., 57 So.2d 779, 781, the trial court sustained an exception of vagueness and ordered plaintiff to amend his petition within 20 days. Plaintiff filed a supplemental and amended petition Five days after the expiration of the time allowed by the trial court, whereupon the trial court dismissed plaintiff's suit. The Court of Appeal, First Circuit, reversed the trial court, holding that plaintiff should be permitted to file the amended petition in spite of the fact that it was filed five days after the time allowed. In so holding the court said:

'While it is true the allowance or refusal of amended petitions is largely within the sound discretion of the Court, and its action will not be reversed unless manifest error and injustice will result, yet as stated many times in our jurisprudence, amendments are favored. In Thomas v. Leonard Truck Lines, Inc., La.App., 7 So.2d 753, 756, 'The tendency now is to pursue a liberal rather than a strict attitude toward ('amendments'). To do so prevents a multiplicity of suits abhorred by courts.'

'To hold in the present case that plaintiff's suit could be dismissed since the amended petition was filed five days after the time allowed by the trial judge would result in injustice. We do not mean to pronounce that a plaintiff has an unlimited time within which to comply with the direction of a court in allowing time to file amendments, but that in this particular case the amendment was timely and will promote justice and neither the nature of the demand nor the substance of the issue will be changed.'

In Interstate Electric Company v. Interstate Electric Company, La.App. 2 Cir., 6 So.2d 39, 40, an exception of vagueness was sustained and plaintiff was allowed a period of time within which to amend its petition. A supplemental or amending petition was not filed until nearly Four years after the expiration of the time granted by the trial court. A few days after this supplemental and amended petition had been filed, defendant filed a motion to dismiss the suit on the ground that plaintiff had failed to file the amended petition timely. The Court of Appeal, Second Circuit, held that plaintiff should be permitted to file the supplemental and amended petition, since the order sustaining the exception of vagueness did not include the penalty of dismissal for failure to comply with it and defendant had filed no motion to dismiss prior to the time the amendments were made. The following language was used by the court:

'A judgment of dismissal in such an instant is based upon laches or presumed abandonment of its claim by plaintiff. But in the case at bar plaintiff's suit could not be dismissed before hearing on a motion to dismiss and if it had good, sound legal grounds for not furnishing the information ordered furnished by the court within the delay granted, it did not have to take any action until an attempt to dismiss his suit was made by defendant and if defendant was not actively pushing its advantage under the court's ruling or was guilty of laches itself in failing to urge its right, we fail to see how or why plaintiff should be condemned for its laches.'

We are aware of the fact that in the instant suit, unlike the Interstate Electric Company case, the order sustaining the exception of vagueness included the penalty of dismissal for failure to comply with the order to amend. We think the cited case, however, illustrates that the tendency now is to pursue a liberal rather than a strict attitude toward allowing amendments in judicial proceedings. See also Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169; Thomas v. Leonard Truck Lines, La.App. 2 Cir., 7 So.2d 753.

In the instant suit plaintiffs were allowed a very brief period of time within which to amend their petition, and the amendments were made within one day after that delay expired. While we, like the First Circuit Court of Appeal, do not mean to pronounce that a plaintiff has an unlimited time within which to comply with the direction of a court in allowing time to file amendments, we are convinced that, under the circumstances presented here, a judgment of dismissal is not warranted on the basis of laches or presumed abandonment by the plaintiffs, and that an injustice would result if plaintiffs are not permitted to file the amended petition, even though it was presented one day after the time allowed by the trial court had expired. We conclude, therefore, that the trial court erred in holding that plaintiffs' supplemental and amended petition was not timely filed.

A plea of prescription may be filed in the Court of...