In re Seim
| Decision Date | 22 June 1903 |
| Docket Number | 14,691 |
| Citation | 111 La. 554,35 So. 744 |
| Court | Louisiana Supreme Court |
| Parties | In re SEIM |
Rehearing Considered.
Appeal from Civil District Court, Parish of Orleans; John St. Paul Judge.
In the matter of August Seim, praying for confirmation of title. Judgment for defendants Azelie Handlin and Valsin Jones, and plaintiff appeals. Affirmed.
Henry L. Garland, Jr., for appellant.
William W. Handlin and Joseph Brewer, for appellee Mrs. Azelie Handlin.
Emile Pomes, for appellee Valsin Jones.
Defendant and appellee Mrs. Azelie Handlin moves to dismiss this appeal on the ground that the transcript of appeal is incomplete, in that it does not contain the evidence in another cause numbered 66,202, civil district court, Division A, entitled Mrs. Azelie Handlin v. John C. Dodt et al., which was admitted at her instance, as made to appear from the note of evidence.
Furthermore, that the transcript of appeal does not contain any mention of the fact that August Seim was summoned as a witness in the cause numbered 66,202, civil district court, which is No. 14,619 of the docket of this court. 110 La. 936, 34 So. 881.
Defendant and appellant in the case before us offered record 66,202, entitled Handlin v. Dodt, "with all of the pleadings and all the evidence therein." The pleadings include all formal allegations by the parties in which they set up their claims and defenses. In offering the "pleadings" it did not embrace the summons in the case issued to witnesses.
The "evidence" introduced in suit No. 66,202, civil district court (No. 14,619 of this court) does not cover the summons, and in offering the "evidence" in the case the offer did not include the summons, which defendant says should have been copied as forming part of the transcript of appeal.
We do not think the transcript is incomplete without it; that is, without the copy of the summons showing that Seim had been summoned as a witness. Under the circumstances, therefore, we must decline to dismiss the appeal. The summons should have been specially offered in evidence; then it would have formed part of the record.
The motion to dismiss the appeal is overruled.
On the Merits.
August Seim, plaintiff, to whom the auditor executed a deed in June, 1902, to land which he now claims, asks that his right be recognized and affirmed.
He traces his title to the state of Louisiana. He avers, substantially, that his author (the state) acquired one tax title on the 7th of July, 1884, another tax title on the 1st of November, 1883, and that he is now the owner of all the rights of the state. Plaintiff pleads his own title as valid, and attacks defendant's as invalid.
The defendant joined issue with plaintiff, and pleaded the prescription of 10 and 30 years.
She pleaded estoppel on the ground that plaintiff had some time previous to his purchase from the state interested himself in finding a buyer of the property, and that through him a buyer was found.
She also pleaded res judicata, basing her plea on a judgment which she obtained in the year 1896, before one of the city courts of the city of New Orleans, against the officers of the state and city charged with the collection of taxes.
The auditor's deed which plaintiff holds is in the usual form.
Plaintiff, for some reason not fully explained by the testimony, only a few months before he acquired his title from the state, interested himself in finding a purchaser for the defendant. He induced defendant's agent to go with him to the home of a Mr. Dodt, and there, we are informed by the testimony, the terms of the sale to be passed were agreed upon between the parties. The buyer paid $ 200 to the seller as earnest money, in presence of plaintiff, who had conducted negotiations between this buyer and defendant's husband and agent.
It occurs to us that plaintiff had taken such an active part in the matter of this sale that he was scarcely in a position himself to become the owner in the manner he did.
The buyer, upon an examination of the title, decided not to buy the property. Plaintiff, as to his conduct in the premises, was criticized by witnesses, and comments were made by the lower court regarding the part taken by him. He did not seek to explain anything by himself testifying so as to explain his connection with the matter.
But we pass from this ground to that of res judicata, which was sustained by the lower court. This plea is based upon the fact that in the year 1896 she obtained judgment, as before mentioned, against the defendant in the suit, the city of New Orleans, to cancel and erase the inscriptions of the taxes on the property now in controversy, and further against the tax collector for the Third District and recorder of mortgages, ordering him to cancel and erase from their books all inscriptions for taxes against the property up to and including the year 1892.
The taxes were canceled and erased. Plaintiff, in answer to the plea of res judicata pleaded by defendant, urged that this plea is not good, because the judgment pleaded is void for want of jurisdiction of the court by which it was rendered.
If the judgment had been obtained under the Constitution of 1898 instead of 1879, it may be that the attack on the judgment of want of jurisdiction ratione materiae would have held good. But the Constitution of 1879, regarding the jurisdiction of the city court, differs materially from the corresponding article of the Constitution of 1898.
The Constitution of 1879 conferred jurisdiction on these courts over all sums not exceeding $ 100. The Constitution of 1898 seems more restricted, as relates to jurisdiction when title of immovable property is involved. It restricts the jurisdiction to movable property not exceeding that amount in value, while the Constitution of 1879 imposed no limitation to jurisdiction in that respect, except as to the amount involved.
The court had jurisdiction, for the property was assessed at $ 100 and the taxes assessed were within that amount.
We therefore conclude that in 1896 the court had jurisdiction to order the cancellation of taxes, as was ordered in this case.
Suggestion is made that, a sale having been executed to the state prior to the judgment ordering the cancellation of the taxes, the tax collector and other defendants in the suit which resulted in a judgment to cancel, as before mentioned, were without capacity to stand in judgment for the state, and that it follows the judgment was null and void, and not pleadable as res judicata.
We turn to a comparatively recent decision, and find this court has decided that the court has jurisdiction to hear and determine the validity of the title of the state to the property, even in the absence of consent on the part of the state.
The issues were directly presented, and were passed upon, after evidently having received most careful consideration by the court. The state, the court held, may not be concluded from asserting any right she may have in a direct action, but in the meantime the right is recognized in the owner for valid cause to have the tax canceled.
The decision goes on to state that immunity of the sovereign from suit is no longer the condition, even in England, from where the principle emanates; that the property rights of the owner are not free from the possibility of all judicial inquiry. From this and other propositions the court deduces...
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