New Orleans Terminal Co. v. Teller

• Decision Date: 05 December 1904
• Docket Number: 15,086
• Court: Louisiana Supreme Court
• Parties: NEW ORLEANS TERMINAL CO. v. TELLER

37 So. 624

113 La. 733

NEW ORLEANS TERMINAL CO. v. TELLER

No. 15,086

Supreme Court of Louisiana

December 5, 1904

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

Action by New Orleans Terminal Company against Alvine Teller. Judgment for plaintiff, and defendant appeals. Reversed.

Saunders & Gurley, for appellant.

Farrar Jonas & Kruttschnitt, for appellee.

OPINION

PROVOSTY J.

The plaintiff, alleging itself to be a railroad corporation duly incorporated under the laws of this state, has brought this suit to expropriate a square of ground in the city of New Orleans belonging to the defendant.

Defendant excepted to the petition on the two grounds: First, that the purposes for which the property is sought to be expropriated are not stated in the petition; and, second that the suit is not brought or authorized in the manner required by law.

Over the objection of the defendant, the court referred the exception to the merits; that is to say, to the decision of the jury of freeholders.

In so doing the court erred. Obviously the question of the sufficiency of the petition was one properly to be decided before defendant should be required to answer to the merits. In the next place, the questions raised were "incidental questions arising in the course of the trial," such as are to be "decided summarily, without the intervention of a jury." Code Prac. arts. 755, 757; McGehee v. Brown, 3 La.Ann. 272; Goodloe v. Holmes, 2 La.Ann. 400. And moreover the jury of freeholders in an expropriation suit is not an ordinary jury, or, in other words, a tribunal or court of general jurisdiction, but is a tribunal or court of special jurisdiction, qualified to pass on those questions alone, which the law has prescribed shall be submitted to it. With matters pertaining to the sufficiency of the pleadings for bringing the case before the court, such a tribunal can have nothing to do.

The defendant had the legal right to have the exceptions disposed of as exceptions, and of this legal right she has been deprived by the unwarranted action of the lower court. This court has again and again animadverted upon the deplorable practice of referring to the merits exceptions that do not involve the merits.

The worst of it is that by the time a case reaches this court the evil of this practice has been wrought and is beyond remedy, and this court is made to countenance a thing it deprecates and condemns -- a halfway denial of a litigant's full measure of justice. In the present case, for example, the error is found not sufficiently prejudicial to the appellant to justify the setting aside of the judgment and ordering of another trial, and yet the appellant certainly had the legal right to have the exceptions passed on as exceptions, and has been deprived of that right.

The deficiency of the petition was caused by the failure to file certain maps annexed to and made part of it, for the purpose of showing to what use the land was intended to be put. Counsel say the failure to file these maps was due to an oversight on the part of a clerk in their office. The petition alleged that the land was needed for railroad purposes, but did not describe or specify the purposes, otherwise than by a reference to the maps. The maps were, however, produced and filed on the trial, and they showed that the land was sought to be taken for the laying of storage and classification tracks. As thus supplemented, the petition was full and complete, and as a result the exception was fully met.

Had the maps not been filed at all, or had the defendant, when they were filed, asked to amend her answer, or for further time in which to prepare her defense, and the court had refused, or even had the defendant objected to the filing of the maps, and stood upon her right to have a legally sufficient petition served upon her before she should be required to answer, the exception would most unquestionably have had to be now sustained and the case sent back for another trial. But the defendant permitted the maps to go in without objection, did not plead surprise, did not ask for further time, but went on and tried the case as if the petition had been sufficient from the beginning and the exception had never been made; and this court is satisfied that the case as presented by the record is precisely the same as it would have been if the petition had been perfect. Under these circumstances, it would serve no useful purpose to now sustain the exception and remand the case for another trial.

Not every error will furnish sufficient ground for setting aside a judgment and requiring a case to be tried over again. There must be prejudice to the appellant, and the prejudice must be such as cannot be remedied on the appeal, but only by another trial. Ealer v. Freret, 11 La.Ann. 455; Bush v. Decuir, 11 La.Ann. 503; Smith v. McWaters, 7 La.Ann. 146; Howell v. St. Charles St. R. Co., 22 La.Ann. 604; Levi v. Weil & Bro., 24 La.Ann. 223; State v. R. Co., 34 La.Ann. 951; 3 Cyc. 387.

The second exception was founded on the fact that neither the name of the president nor of any other officer of plaintiff corporation was stated in the petition, but only that of the corporation was stated.

The court sees no reason why such an appearance by a corporation should not be entirely sufficient. A corporation is a person, and does not labor under any incapacity, like a minor or an interdict. What good reason could there be, then, why it should not sue in its own name alone? True, it can act only through agents, it being a mere juridical person; but, inasmuch as it has the capacity to stand in judgment for itself, what necessity is there for naming these agents in the petition?

The law governing the matter is article 112 of the Code of Practice, which reads as follows:

"Corporations, bodies corporate and chartered institutions act judicially through their proper representatives under the name or title given to them in the act of incorporation."

Grammatically this text is susceptible of the reading that corporations act judicially through their proper representatives under the name or title given to these representatives in the act of incorporation. But that reading would preclude corporations from appearing judicially in their own names -- would place them on a plane with minors and interdicts -- and therefore is evidently not the true reading.

The "the" before the words "act of incorporation," in the article, should be "their," and the true reading be that corporations act judicially through their proper representatives under the name or title given them in their (not "the") act of incorporation. The "the" in place of the "their" crept into the revision of 1870 by a manifestly clerical error, as appears by reference to the text of the original Code, and especially by reference to the French text. It is well known that the English text of the original Code was a translation from the French, the Code having been written in French.

Corporations, then, act judicially in their own names. Of course, judicially and in every other way, they act through their proper representative. Being mere ideal persons they cannot, in the nature of things, act in their own persons; but the Code does not say that these representatives shall be named in the petition, nor, as in the case of minors and interdicts (article 109), that these representatives act themselves, without making their principals parties to the suit. It is notable that when a corporation is sued its president or other officer need not be designated. The suit is brought directly against the corporation by name. Article 119, Code Prac.

It has been held that without special authorization the president of a police jury cannot bring suit in his own name in behalf of the police jury, and that the absence of the special authorization need not be specially pleaded, but may be taken advantage of under the general denial by assignment of error on appeal. Hoffpauir v. Wise, 38 La.Ann. 704.

At common law it seems to have been at one time questionable whether a corporation could not appear judicially even without the intervention of an attorney at law. Ency. of Pleading & Practice, vol. 2, p. 699.

In the case of Ins. Oil Tank v. Scott, 33 La.Ann. 946, 39 Am. Rep. 286, this court held that the failure to state the name of the officer of the corporation in the petition was a defect, but that the defect was cured by proof of the suit having been brought by authority of the board of directors. So, in the case of Lacaze & Reine v. Creditors, 46 La.Ann. 239, 14 So. 601, the court treated the case as one involving the question of whether the suit had been brought by authority, and held that, although no officer was named in the petition, yet that the petition was sufficient, because the affidavit of the vice president was itself sufficient proof of the suit having been authorized.

In these cases the court seems to have confounded between the want of authority to bring the suit and the failure to name the president or other officer of the corporation in the petition. But the want of authority is one thing -- it goes to the substance; the failure to name the officer is another and entirely different thing -- it is a mere matter of form. If the petition was fatally defective in form, how could the defect be cured by proof that the suit had been authorized, which had absolutely nothing to do with form? In effect, therefore, the decision of the court was that, so long as the suit is duly authorized to be brought, the failure to name the president or other officer is insignificant.

In the Scott Case the court did not discuss the question of whether the failure to name the president or other officer of the plaintiff in the...