Hubert v. City of New Orleans

• Decision Date: 05 April 1904
• Docket Number: 1,251.
• Citation: 130 F. 21
• Parties: HUBERT v. CITY OF NEW ORLEANS.
• Court: U.S. Court of Appeals — Fifth Circuit

130 F. 21

HUBERT v. CITY OF NEW ORLEANS.

No. 1,251.

United States Court of Appeals, Fifth Circuit.

April 5, 1904

The following is the statement of the case and the opinion below:

On April 3, 1890, R. F. Harrison, a citizen of Mississippi alleging himself to be receiver of the Board of Metropolitan Police by appointment of the late Third District Court for the parish of Orleans, La., filed suit No. 11,899 in this court, averring that by certain acts of the Legislature of Louisiana creating the board it was made the duty of the city of New Orleans to levy and collect a certain special tax for the support of the officers and members of said board; that the city owes the board a balance of $118,057.49 and interest because of said taxes. On May 31, 1890, the receiver, by a supplemental petition, increased his demand to $940,379.66 and interest. On November 17, 1902, Louis A. Hubert, alleging himself to be the duly appointed and qualified receiver filed his supplemental and amended petition, claiming from the city $740,106.54 and interest on account of said taxes. It was admitted that Harrison, the original plaintiff, was when this suit was brought, a citizen of Mississippi; that he died December 30, 1890; that the receivership remained vacant until December 22, 1899, when, on the application of the city of New Orleans, the present plaintiff, Hubert, was appointed receiver by the civil district court for the parish of Orleans, La., and that he duly qualified; that Hubert is a citizen of Louisiana, and the Board of Metropolitan Police was also a citizen of Louisiana. There was evidence showing the receivership proceedings in the state courts. The city filed an exception to the supplemental and amended petition of the receiver, Hubert, which was tried by a jury. The court directed a verdict for the city, and dismissed the suit for the reasons stated in the opinion. Further facts concerning the litigation are stated in State ex rel. Brittin et al v. City of New Orleans, 43 La.Ann. 829, 9 So. 643.

PARLANGE, District Judge.

The exception to the supplemental petition of Louis A. Hubert, receiver, is virtually founded on two grounds, viz: First, that this court has no jurisdiction, because the parties on both sides are citizens of Louisiana; second, that Hubert, the receiver, is not authorized to bring the suit. It was conceded that the parties are citizens of Louisiana, and, there being no conflict of evidence, cross-motions to direct a verdict were made, and the court directed a verdict in favor of the exceptor, the city of New Orleans, and against the plaintiff. In accordance with the verdict, the court has sustained the exceptions, and dismissed the suit without prejudice. I am clearly of opinion that as Hubert, the present receiver, is a citizen of Louisiana, he cannot prosecute the suit against the city of New Orleans, which is also a citizen of Louisiana. Harrison, the deceased receiver, was, it is true, a citizen of Mississippi, but, the appointment under which he claimed the right to prosecute suit No. 11,899 in this court having been annulled by decree of the Supreme Court of this state (State ex rel. Brittin v. City of New Orleans, 43 La.Ann. 829, 9 So. 643), and his authorization to prosecute that suit in this court having also been annulled, it is clear to me that Hubert can claim no standing in this case because of the citizenship of Harrison. No benefit can result to Hubert from a suit by Harrison as receiver under an unlawful appointment. That the counsel who brought suit No. 11,899 were convinced that it virtually went out of existence because of the decree of the Supreme Court of this state and the annulment of Harrison's authorization seems to be plainly shown by the fact that for more than 10 years no step was taken in the suit. The Supreme Court of this state virtually said concerning Harrison: 'The order enlarging the powers of the receiver in this case was practically a new and distinct appointment. ' If the conferring of the enlarged powers on Harrison in 1890 constituted 'a new and distinct appointment,' the same result followed the appointment of Hubert December 22, 1899, under the same enlarged powers. The supplemental petition must be considered as a new suit brought by a receiver who is a citizen of Louisiana, and therefore this court has no jurisdiction in the matter. I believe, as did the Supreme Court of this state, that the enlargement of Harrison's powers constituted a new and distinct appointment. But is should be noticed that, even if that view is incorrect, the result, so far as the matter in hand is concerned, would be the same; for, even if the order enlarging Harrison's powers did not constitute a new appointment, it was, at all events, his only source of authority for prosecuting suit No. 11,899, and the question then would be whether, Harrison's capacity and authorization to prosecute the suit having been annulled, Hubert can now, many years afterwards, claim a standing in this court because Harrison, at the time he brought the suit, was a citizen of Mississippi. Clearly, he cannot do so. It should be noticed that Harrison brought suit No. 11,899 before the enlargement of his powers.

I have considered carefully the cases...