Gill v. City of Lake Charles

• Citation: 119 La. 17,43 So. 897
• Decision Date: 29 April 1907
• Docket Number: 16,405
• Court: Louisiana Supreme Court
• Parties: GILL et al. v. CITY OF LAKE CHARLES et al

43 So. 897

119 La. 17

GILL et al. v. CITY OF LAKE CHARLES et al

No. 16,405

Supreme Court of Louisiana

April 29, 1907

Appeal from Judicial District Court, Parish of Calcasieu; Edmund Dennis Miller, Judge.

Action by Hardy C. Gill and others against the city of Lake Charles and others. Judgment for defendants, and plaintiffs appeal. Reversed.

Schwing & Moore, for appellants.

Thomas Thompson Taylor, for appellees.

OPINION

PROVOSTY J.

The city of Lake Charles is situated on the shore of Lake Charles. An ordinance of the city has granted to the St Louis, Watkins & Gulf Railway, a franchise giving it the right and power to construct and operate a steam railroad along the lake front from Clarence street to Broad street. The plaintiffs, eight in number, allege that they are citizens and taxpayers of the city, and owners of the property abutting upon the lake between the said Clarence and Broad streets, and also of the riparian rights pertaining to said property; that the so-called Front street, along which said franchise is given, has never been dedicated or expropriated as a street, and is not a street, but at best "an easement by the owners for passage on foot and in ordinary vehicles"; that, by the construction and operation of said railroad, said easement would be either destroyed or rendered dangerous and impracticable, and petitioners' said property would be cut in two, deprived of its said riparian rights, and rendered uninhabitable by the difficulty of access and by the smoke, jars, and noises attendant upon the operation of trains, and, as a consequence, said ordinance, if carried into effect, would damage each of the petitioners in the sum of over $ 2,000 that petitioners protested against the adoption of said ordinance as a manifest and gross oppression and abuse of power; and that said ordinance is null, because it both takes and damages the property of petitioners without compensation and is ultra vires, and is violative of the city charter, in the following particulars: Here follow eight specifications, among which is the one that the franchise was granted without competition and without consideration, although worth more than $ 100,000, and although other parties might have bid for same if the charter requirements for the invitation of sealed proposals and for publication had been complied with. The city and the railroad company are made defendants, and the prayer is that the ordinance be annulled.

Defendants excepted that there is no allegation of privity of interest between the plaintiffs, and that therefore there is a misjoinder of parties plaintiff.

The lower court sustained this exception, and dismissed the suit in so far as it is a joint suit, but reserved to the plaintiffs the right to prosecute it in any one of their separate names. From that judgment the plaintiffs have appealed.

The Code is singularly silent on the subject of joinder of parties. The provision bearing nearest upon the subject is that contained in article 147 et seq., dealing with "Cumulated Actions," where the cumulation of several demands is expressly authorized, provided they are not inconsistent. This, apparently, leaves the door open for several plaintiffs to join their suits against several defendants, regardless of privity or connection between them, so long as the demands are not inconsistent. But no one ever understood that the intention was to sanction anything of that kind, and this court soon had occasion to discountenance such a practice, declaring that it was "at variance with well-settled rules of pleading" [Mayor v. Azmant, 14 La.Ann. 181; Dyas v. Dinkgrave, 15 La.Ann. 502, 77 Am. Dec. 196], and that the "law" did not favor "a multiplicity of actions against different parties in the same suit." Leverich v. Adams, 15 La.Ann. 310. But the court did not say where this "law" and these "well-settled rules of pleading" were to be found.

We look in vain for them in the Spanish and French systems of procedure prevailing at the time of the adoption of our Code of Practice; but we find them in the common-law books, and we know that our Code of Practice was derived largely from that system, while our Criminal Procedure was taken bodily from it. The rules there laid down are safe guides, all the more so because they are not the product of arbitrary legislation, but the gradual result of the application of pure reason to the exigencies of cases in actual practice. The following statement of the law upon this subject, taken from Gaines v. Crew et al., 2 How. 619, 11 L.Ed. 402, a Louisiana case, is as satisfactory as any:

"What shall constitute multifariousness is a matter about which there is a great diversity of opinion. In general terms, a bill is said to be multifarious, which seeks to enforce against different individuals demands which are wholly disconnected. In illustration of this, it is said, if an estate be sold in lots to different persons, the purchasers could not join in exhibiting one bill against the vendor for a specific performance. Nor could the vendor file a bill for specific performance against all the purchasers. The contracts of purchase being distinct, in no way connected with each other, a bill for specific execution, whether filed by the vendor or vendees, must be limited to one contract. It has been decided that an author cannot file a joint bill against several book sellers for selling the same spurious edition of his work, as there is no privity between them; but it has been ruled that a bill may be sustained by the owner of a sole fishery against several persons who claimed under distinct rights. The only difference between these cases would seem to be that the right of fishery was necessarily more limited than that of authorship, and how this should cause any difference of principle between the cases is not easily perceived.

"It is well remarked by Lord Cottenham, in Campbell v. Mackay, 7 Simon, 564, and in 1 Mylne & Craig, 603: 'To lay down any rule applicable universally, or to say what constitutes multifariousness, as an abstract proposition, is, upon the authorities, utterly impossible.' Every case must be governed by its own circumstances, and, as these are as diversified as the names of the parties, the court must exercise a sound discretion on the subject. Whilst parties should never be subjected to expense and inconvenience, in litigating matters in which they have no interest, multiplicity of suits should be avoided, by uniting in one bill all who have an interest in the principal matter in controversy, though the interest may have arisen under distinct contracts.

"In the course of reasoning in the above cited case, Lord Cottenham observes: 'If, for instance, a father executed three deeds, all vesting property in the same trustees, and upon similar trusts, for the benefit of his children, although the instruments and the parties beneficially interested under all of them were the same, it would be necessary to have as many suits as there were instruments. That is a proposition,' he says 'to which I do not assent. It would, indeed, be extremely mischievous, if such a rule were established in point of law. No possible advantage could be gained by it; and it would lead to a multiplication of suits, in cases where it could answer no purpose to have the subject-matter of contest split up into a variety of separate bills.' The same doctrine is found in Story's Equity Pleadings, § 534; Attorney General v. Cradock, 3 Mylne & Craig, 85, 7 Sim. 241, 254.

"In the above case against Cradock, the chancellor says: 'The object of the rule against multifariousness is to protect a defendant from unnecessary expense; but it would be a great perversion of that rule, if it were to impose upon the plaintiffs, and all the other defendants, two suits, instead of one.'"

On the same subject we transcribe from 14 E. of P. & P. 195, 200, as follows:

"There is no settled and inflexible rule as to whether or not a pleading is multifarious. The question is one which must be determined largely by the circumstances of each particular case."

"Multifariousness as to parties. The other form of multifariousness, and the one which is said to be more properly such, consists in joining in the same suit, either as complainants or defendants, parties who are without a common interest in the subject of the litigation and have no connection with each other. In order to complain successfully of multifariousness in this form, a defendant must show that he is brought as a defendant upon a record...