Johnston v. Nanney

• Decision Date: 15 November 1962
• Docket Number: No. 683,683
• Citation: 147 So.2d 268
• Parties: Ben T. JOHNSTON, Plaintiff and Appellant, v. A. H. NANNEY, Defendant and Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 268

147 So.2d 268

Ben T. JOHNSTON, Plaintiff and Appellant, v. A. H. NANNEY, Defendant and Appellee.

No. 683.

Court of Appeal of Louisiana, Third Circuit.

Nov. 15, 1962.

Rehearing Denied Dec. 10, 1962.

Concurring Opinion Dec. 18, 1962.

Schober & Newstadt, by David B. Newstadt, Shreveport, for defendant-appellant.

Cavanaugh, Hickman, Brame & Holt, by A. B. Cavanaugh, Lake Charles, for defendant-appellee.

Before TATE, SAVOY and HOOD, JJ.

HOOD, Judge.

This suit was originally instituted in 1949 as a monition proceeding, but by agreement it was later converted into a petitory action, with Ben T. Johnston as plaintiff and A. H. Nanney as defendant. It affects and relates to the following described property, located in Vernon Parish, Louisiana, to-wit:

SW 1/4 of SW 1/4 Section 6; SE 1/4 of NW 1/4 and NE 1/4 of SW 1/4 Section 7, Tp. 2 North, Range 9 West.

No steps were taken in the prosecution of the suit for several years, so in 1960 defendant filed a motion to dismiss the suit on the ground that it had been abandoned, which motion was denied. The defendant thereupon filed exceptions of no right and no cause of action, exceptions of prescription or peremption based on several grounds, and a plea of estoppel or laches, all of which exceptions or pleas were referred to the merits. After trial of the case on its merits, judgment was rendered in favor of defendant decreeing him to be the lawful owner of the property and quieting his title thereto. Plaintiff has appealed from that judgment, and defendant has answered the appeal praying that the judgment be affirmed.

Shortly before the case was scheduled for hearing in this Court, defendant filed a motion to dismiss the appeal, and that motion was submitted at the time the case was argued on its merits.

On Motion to Dismiss

The record shows that May 14, 1962, was the last day upon which plaintiff could take a devolutive appeal (LSA-C.C.P. Art. 2087). The Office of the Clerk of Court closed at 5:00 p.m. that day, as it customarily did on weekdays and as authorized by LSA-R.S. 13:756. At 5:05 p.m. on that day, plaintiff obtained an order from the District Judge granting the appeal, and this order was presented to the Clerk of Court at his residence at 5:45 p.m. the same day. The Clerk thereupon marked the order 'Filed May 14, 1962, at 5:45 o'clock P.M.,' but he kept the order at his residence that night and did not take it to his office and formally deposit it with the record of this suit until the following morning, May 15. An appeal bond in the proper amount and form had been filed with the Clerk earlier on May 14, before the order of appeal was signed.

Defendant argues that under these facts the order of appeal should not be considered as having been filed until May 15, 1962, which was after the time allowed for taking such an appeal had elapsed, and accordingly he contends that the appeal should be dismissed. It also is argued that the furnishing of an appeal bond on May 14, prior to the signing of the order, did not have the effect of perfecting the appeal at the time the bond was filed. We agree that the appeal was not perfected merely upon the filing of the appeal bond, no order granting an appeal having been issued at that time. We cannot agree with defendant, however, in his contention that the appeal was not taken until the following day. In our opinion, the filing of the order of appeal with the Clerk of Court at his residence during the late afternoon of May 14, 1962, after the Clerk's office had closed, and the acceptance of the order and marking it filed by the Clerk at that time, constituted a filing of the order and the taking of the appeal on that day, even though the papers were not taken to the Clerk's office and formally placed in the record of the suit until the next day. We conclude, therefore, that the appeal was perfected within the delays allowed by Article 2087 of the LSA-Code of Civil Procedure.

The appellant failed to file a brief in this Court within 25 calendar days after the filing of the transcript of appeal, as required by Section 7, Rule IX, of the Uniform Rules, Courts of Appeal (LSA-R.S., Vol. 8). A brief in his behalf was filed, however, after that 25-day period had elapsed, but before the date scheduled for the case to be heard in this Court. Defendant contends that the appellant's failure to timely file a brief constitutes an abandonment of the appeal and, accordingly, that the appeal should be dismissed. The failure of counsel for appellant to timely file a brief deprives him of the right to oral argument of the case, but it does not entitle the appellee, as a matter of right, to have the appeal dismissed, and it does not prohibit us from considering the appellant's tardy brief. In this case we think the appellant's delay in filing a brief did not indicate an intent to abandon the appeal.

For these reasons the motion to dismiss the appeal is denied.

On the Merits

The evidence establishes that the above described property was acquired by Henderson Land, Timber and Investment Company, Inc., in 1923. By tax deed dated September 5, 1931, the subject property was adjudicated to the State of Louisiana for unpaid taxes due for the year 1930, under an assessment in the name of Henderson Land & Timber Co. No issue is raised in this suit as to the validity of that tax adjudication.

At a tax sale held on December 17, 1932, the same property was again adjudicated to the State of Louisiana for unpaid taxes due for the year 1931, under an assessment in the name of Henderson Land and Lbr. Co. The property had not been redeemed from the earlier tax sale before this last adjudication was made, and the trial judge held, correctly we think, that this adjudication for 1931 taxes was null and void since title to the property was still vested in the State at the time this tax sale took place. See Boagni's Heirs v. Thornton, La.App. 3 Cir., 132 So.2d 494 (Cert. denied.)

On December 31, 1938, the Register of the State Land Office issued a certificate of redemption, certifying that the taxes due on this property for the year 1931 had been paid, and that under the provisions of Act 47 of 1938 the property was redeemed to Henderson Land & Lbr. Co. This redemption certificate related to the Second adjudication to the State, which adjudication we consider to be void, and the certificate recites that the Henderson Company 'is legally subrogated to all rights, liens and mortgages of the State incident to and growing out of the taxes for the years 1931 * * *.'

After the issuance of this redemption certificate, the property was returned to the tax rolls. The taxes due on this property for the year 1939 were not paid, however, and so by tax deed dated May 4, 1940, this property was sold to defendant, A. H. Nanney, for unpaid taxes due for that year, under an assessment in the name of Henderson Land & Timber Co.

Mr. Nanney instituted this action as a monition proceeding on January 10, 1949, and opposition to the proceeding was promptly filed by the Henderson Company. By deed dated May 31, 1949, H. E. Harper, Trustee of the Estate of Henderson Land, Timber and Investment Company (then in bankruptcy), sold this property to plaintiff, Ben T. Johnston, and in June, 1949, Mr. Johnston filed an answer in the monition proceeding, opposing the confirmation of the tax sale to Nanney.

On June 27, 1949, the Register of the State Land Office issued a certificate of redemption certifying that the taxes due on this property for the year 1930 had been paid, and that under the provisions of Section 53, of Act 170 of 1898, LSA-R.S. 47:2181, 47:2186 the property was thereupon redeemed to Henderson Land & Timber Co. This redemption relates to the First adjudication to the State, which adjudication we think was valid and had the effect of vesting legal title to the property in the State.

Plaintiff contends that the tax sale to Nanney on May 4, 1940, for unpaid taxes due for the year 1939 was an absolute nullity, because at the time of that sale title to the land was vested in the State. It is pointed out that this property was adjudicated to the State in 1931 for unpaid taxes due for the year 1930, and that it had not been redeemed from that tax sale at the time the property was sold to Nanney for unpaid 1939 taxes. Accordingly, plaintiff argues that Mr. Nanney did not acquire a valid title by virtue of the 1940 tax sale. To support this argument, plaintiff relies on the cases of Boagni's Heirs v. Thornton, supra; Thomas v. Bomer-Blanks Lumber Company, La.App. 1 Cir., 105 So.2d 299; and Waterman v. Tidewater Associated Oil Company, 213 La. 588, 35 So.2d 225.

Defendant contends primarily that the redemption certificate issued on December 31, 1938, should be construed as a valid redemption of the property from the adjudication made to the State for unpaid taxes due for the year 1930, even though the certificate recites that the redemption was from the adjudication made for 1931 taxes. It is argued that this particularly is true because the redemption was made under the provisions of Act 47 of 1938, which statute was adopted as a temporary measure for the specific purpose of enabling property which had been adjudicated to the State or its political subdivisions to be redeemed and restored to the tax rolls.

The trial judge held that the redemption certificate issued by the Register of the State Land Office on December 31, 1938, redeeming the property from the 1931 tax sale, had the effect of divesting the State of any title it had to the land, and that it particularly divested the State of the title it acquired in 1931 by virtue of the sale of the property for 1930 taxes. The trial court further concluded that title to the property was not vested in the State in 1939 or 1940, that the property was correctly assessed for taxes during the year 1939, and that the tax sale to defendant Nanney for unpaid 1939 taxes was valid.

The law is settled that where...