Handlin v. Dodt

• Decision Date: 02 March 1903
• Docket Number: 14,619
• Citation: 110 La. 936,34 So. 881
• Court: Louisiana Supreme Court
• Parties: HANDLIN v. DODT et al

34 So. 881

110 La. 936

HANDLIN v. DODT et al

No. 14,619

Supreme Court of Louisiana

March 2, 1903

Rehearing denied June 22, 1903.

Appeal from Civil District Court, Parish of Orleans; Thomas C. W Ellis, Judge.

Action by A. Handlin against John C. Dodt and others. Judgment for plaintiff, and both parties appealed. Appeal of plaintiff dismissed. Reversed.

William W. Handlin and Joseph Brewer, for appellant.

John G Robin, for appellee Dodt.

Emile Pomes, for appellee Jones.

Solomon Wolff, for appellee Dreyfous.

PROVOSTY J. NICHOLLS, C.J.

OPINION

On Motion to Dismiss.

PROVOSTY, J.

This is an action in slander of title and for damages. The defendants are Valsin Jones, J. C. Dodt, and F. J. Dreyfous. On exception, Dreyfous was dismissed from the suit. After trial on the merits, there was judgment for plaintiff, recognizing her title, and condemning Dodt and Jones to pay the costs of the suit, and Jones to pay $ 150 damages. Jones appealed by motion, and perfected the appeal. Thereafter Mrs. A. Handlin, the plaintiff, appealed by petition. She alleged that Jones had taken an appeal, and that she joined in same, and that she prayed an appeal as against the other defendants, and that the latter be cited. The appeal was accordingly granted, and was duly perfected, and the said two defendants, Dreyfous and Dodt, were duly cited. Both appeals are included in the same transcript.

This transcript was filed in this court on the 31st of October, 1902. On the 11th of November, Mrs. Handlin filed an answer to the appeal of Jones, praying that the judgment against him for $ 150 damages be increased to the full amount claimed in the petition. In this same answer Mrs. Handlin prayed that the judgment sustaining the exception of F. J. Dreyfous, and dismissing him from the suit, be set aside, and that all three defendants be condemned in solido to pay damages as prayed in the petition. On the 25th of November, 14 days after the filing of this answer, Jones filed a motion to dismiss the appeal taken by Mrs. Handlin, on the ground that all the defendants had not been cited, meaning thereby that he himself had not been cited. This motion is the matter before us for consideration.

It must be sustained. Jones is a party to the judgment, and a necessary party. Failure to cite him is therefore fatal to the appeal. Succession of Forsyth, 20 La.Ann. 33; Succession of Perry, 4 La.Ann. 577; Camutz v. Bank, 20 La.Ann. 35; Bolling v. Anderson, 10 La.Ann. 650; Succession of Holmes, 18 La.Ann. 626; Gerodias v. Handy, 31 La.Ann. 334; Baird's Heirs v. Russ, 33 La.Ann. 920. The dismissal of the appeal of Mrs. Handlin does not, however, affect the appeal taken by Valsin Jones, which is a separate, independent appeal, although included in the same transcript.

The appeal taken by Mrs. Handlin, the plaintiff, is accordingly dismissed.

(May 11, 1903.)

Statement of the Case.

NICHOLLS C.J.

Plaintiff, the wife of W. W. Handlin, alleged that she was the holder and owner by perfect title of certain property, which she described. That on the 3d of August, 1901, the defendant John C. Dodt purchased the property for $ 1,600 -- two hundred dollars paid cash down; the formal act to be passed by the notary, Zengel. That the sale was in writing, as follows, to wit: "New Orleans, August 3rd, 1901. Received two hundred ($ 200) dollars, payment on square No. 873 [describing it], sold by Mrs. A. Handlin to Mr. John C. Dodt, the whole price being sixteen hundred dollars cash -- all taxes to be paid by the vendor. [Signed] Azelie Handlin, per W. W. Handlin." That immediately afterwards Dodt said to her agent that he could hand the title to Dreyfous. That he refused to do so, saying he would have nothing to do with him, because he had given him unnecessary trouble before, but that he would give the title to Zengel to pass the formal act, which Dodt agreed to -- that is, he agreed not to employ Dreyfous. That afterwards Dodt, acting in bad faith, and in violation of his verbal agreement, got the title papers from Zengel, and delivered them to said Dreyfous for his advice, examination, and opinion. That after considerable delay he returned said title to Zengel, and refused the property. That after this her said agent visited the property, and found that the said Dodt had published, maliciously or without probable cause, to the neighborhood in the Third District, that he had rejected the property on the examination of title by Dreyfous, contrary to his agreement, and that the slander of her title was in everybody's mouth, to the great damage, depreciation, and injury of her property; whereas her said title is perfectly good and valid, and one of the best known to the law. That long since, her authors' title, based on an order of court, was confirmed by the Supreme Court in the case of Pursell v. Porter, 20 La.Ann. 323. That defendant published a letter of Felix Dreyfous, amounting to slander and libel on her title, by showing the said letter to Frederick Zengel, which said letter, among others, contained the words: "It is only a title by prescription; the constable's sale makes it not a merchantable title." That said language is false, malicious, and slanderous, as a constable has the same right to sell immovables as a sheriff. That by reason of the fictitious reputation of said notary, Dreyfous, as an examiner of titles in the Third District, on account of imaginary difficulties on his part, petitioner's said property had been illegally, wrongfully, and maliciously injured in its reputation as to its value. That said malicious, slanderous, and libelous letter as published aforesaid by said Dodt contained the words, "a suit should be brought against Dodt," which would be a vain thing, and would not be res judicata except between Dodt and petitioner, but would be no bar to third persons suing Dodt. That said Dodt, through an attorney, had published a false, malicious, and slanderous libel upon her title in these words, "said titles were defective," greatly to her damage. That by reason of said false, malicious slanders and libels she had suffered damages, in the sum of $ 2,100, and $ 100 attorney's fees. That petitioner had used every effort in her power to induce defendant Dodt to act in good faith and comply with his contract of sale, in order to avoid a disagreeable, baseless, and unseemly litigation, but all to no purpose. And that she had just learned that one Valsin Jones of New Orleans had just registered a spurious, slanderous title, claiming her said property.

In view of the premises, she prayed for citation, and that after due proceedings she have judgment in her favor against defendants, John C. Dodt, Valsin Jones, and Felix Dreyfous, in solido, for ($ 2,200) twenty-two hundred dollars, with legal interest from judicial demand, and costs. She prayed for judgment that her title was good and valid in law, and quieting her in the same, with the enjoyment of her rights of possession of said property, and forever enjoining the defendants, John C. Dodt, Valsin Jones, and Felix Dreyfous, all residents of the parish of Orleans, from disturbing her title and possession by slander and otherwise. She prayed for all general and equitable relief and as in duty bound, etc.

Dreyfous excepted to the demand, on the grounds: (1) That there was misjoinder of parties defendant.

(2) That the petition was vague and indefinite, and he could not safely go to trial thereon.

(3) That the petition disclosed no cause of action against him.

John C. Dodt pleaded an exception of no cause of action.

Valsin Jones excepted that the petition was too vague and indefinite, and, further, that the suit contained several causes of action against several parties; that he could not be joined with other parties, because the cause of action against him was separate and distinct from that of the others.

The district court sustained the exception of no cause of action and dismissed the suit as to Dreyfous, saying that from plaintiff's...