Louisiana Land Co. v. Blakewood

• Decision Date: 04 November 1912
• Docket Number: 18,780
• Citation: 59 So. 984,131 La. 539
• Court: Louisiana Supreme Court
• Parties: LOUISIANA LAND CO. v. BLAKEWOOD et al

59 So. 984

131 La. 539

LOUISIANA LAND CO. v. BLAKEWOOD et al

No. 18,780

Supreme Court of Louisiana

November 4, 1912

OPINION

LAND J.

On Rehearing.

In plaintiff's application for a rehearing our attention was called to the fact that the answer of the Blakewood heirs to the appeal was not filed "at least three days before that fixed for the argument" as required by Act No 103 of 1908, p. 161. Gartner v. Richardson, 123 La 195, 48 So. 886; Union Sawmill Co. v. Arkansas Southeastern R. Co., 123 La. 555, 49 So. 173.

We have referred to the dates, and find that said answer was filed on the third day, or two days before that fixed for the argument. Hence the Blakewood heirs cannot demand the reversal or amendment of any part of the judgment. See, also, article 890, Code of Practice 1870.

As to section 40, the demand of the plaintiff was rejected, and this tract was decreed to belong to Eugene Wheat, Mark Charrier, and Cleophas Charrier.

The judgment cannot be amended, as between them and their coappellees, the Blakewood heirs.

The appellate court cannot amend the judgment below as between or among the appellees. Coleman v. Cousin, 128 La. 1094, 55 So. 686.

Wheat and the Charriers had no legal title to the N. 1/2 of section 40, and the evidence is clear that their authors abandoned the premises in 1869 or 1870.

Our conclusion is that our former decree was correct as to the titles to sections 38 and 39. As to the N. 1/2 of section 40, we conclude that, as the case is presented on appeal, the plaintiff should have judgment for an undivided half interest therein. As the judgment below cannot be amended in favor of the Blakewood heirs, the allowance to them for improvements and betterments on section 39 cannot be increased. As to the N. 1/2 of section 40, the question of improvements is still open. There were five old cabins on both tracts, worth $ 75 each, according to the estimates of the judge below. As there is doubt as to the location of these cabins, a fair adjustment would be to charge plaintiff with one-half and three-eighths of one-half, of the total valuation of $ 375, making $ 164.50 due by plaintiff to the Blakewood heirs.

In our former decree we estimated the value of plaintiffs' proportion of the right of way of the defendant railroad company at $ 150.

The conclusion we have reached renders it unnecessary to remand the case to enable the Blakewood heirs to prove how much of the N. 1/2 of section 40 was possessed by them and their authors.

The tax receipt filed by the Blakewood heirs is too vague to identify the lands on which the taxes of 1892 were paid by their father, and as they had abundant opportunity on the trial below to connect the tax receipt with the particular tracts of land now in controversy, we conclude that the case should not be remanded for that purpose, especially as the tax sale to the state was not assailed in the pleadings on the ground of the payment of the taxes for which the land was sold, and the point was not raised in the court below, or in this court, except in argument at the bar.

For the purpose of recasting the...