Opelousas, Gulf & N. E. Ry. Co. v. St. Landry Cotton Oil Co

• Decision Date: 08 June 1908
• Docket Number: 16,675
• Citation: 121 La. 796,46 So. 810
• Parties: OPELOUSAS, GULF & N. E. RY. CO. v. ST. LANDRY COTTON OIL CO
• Court: Louisiana Supreme Court

46 So. 810

121 La. 796

OPELOUSAS, GULF & N. E. RY. CO. v. ST. LANDRY COTTON OIL CO

No. 16,675

Supreme Court of Louisiana

June 8, 1908

Original Opinion of March 2, 1908, Reported at 121 La. 726

OPINION

BREAUX C. J.

On Rehearing.

Liability vel non for jurors' fees is the question at issue.

The judgment of the district court condemned neither the plaintiff nor the defendant to pay the per diem of the jury summoned to try the case, but held that the parish should pay them.

From the judgment alleging error as to this item, the parish obtained a devolutive appeal to this court.

Here the contention of plaintiff is that the judgment is correct, and that the parish is liable for jury fees in expropriation proceedings regardless of result, whether the decision be for plaintiff or for defendant.

Taking up in the first place the question whether the parish is liable, we have not found it possible to agree with plaintiff or defendant. Liability for costs is statutory. Without a statute upon the subject there is no liability. We nowhere find statutory provision authorizing the court to fix liability for jury fees in expropriation proceedings upon the parish.

Counsel for plaintiff and counsel for defendant have not cited a single statute which can be construed as fixing the costs on the parish. Without such a law courts are without authority to condemn the parish, a third party, for the costs in expropriation proceedings.

Costs are the creatures of statutory law. State ex rel. Johnson v. Judge, 107 La. 70, 31 So. 645.

Furthermore, "the statute relating to costs must be strictly construed." They include only those referred to in terms of the statute. Ency. of Pleading and Practice, vol. 5, p. 111.

We take it that if Act No. 135, p. 222, of 1898, §§ 12, 13, is not controlling then there is no law under which it is possible to tax the costs on the parish.

We will apply ourselves to ascertain if it has application in this case.

The act in question provides for a jury in a civil suit, and for the deposit of costs by the party by whom a jury trial is asked. No jury is to be ordered unless the costs required are deposited. It relates exclusively to a deposit of $ 12 to obtain a jury trial in ordinary civil suits. Nothing in the terms of the statute leads to the inference that the cost of summoning and impaneling a jury in expropriation proceedings was intended.

That the judge also may order a jury ex officio is one of the provisions of the statute before us at this time, i. e., Act No. 135, p. 216, of 1898.

It suggests itself in the first place that the provision of the statute relates exclusively to a jury prayed for by one of the parties; while in an expropriation suit a jury must of necessity be impaneled to try the cause. On "petition" or "motion" of either of the parties to the suit is the law, and on depositing $ 12, while in expropriation proceedings without any regard to any deposit for costs or without regard to anything in the petition or motion to that effect, the case must be tried by a jury; the costs are expressly provided for in the first instance and not in the second.

In Act No. 135, p. 216, of 1898, the unsuccessful party must pay the costs.

It is not easy to determine who is the prevailing party in an expropriation suit. One (the plaintiff) gets the property for which he prays, and the other, the value of the land. As relates to success in the suit, one may be considered as successful as the other.

But there is other ground for holding that the general law has no application.

Under the general law (Act No. 135, p. 216, of 1898) each party is entitled to six peremptory challenges. In expropriation proceedings there are no challenges allowed. Under the general law the jurors are summoned in accordance with the prayer of one of the parties to the suit; or the jurors who are to serve when the judge ex officio orders a jury are drawn by commissioners, while the drawing and summoning of a special venire of jurors in expropriation cases are drawn by the clerk and sheriff of the district court. Civ. Code, art. 2632.

Expropriation suits are tried by the court under a special jury and under special laws.

True, section 12 of the cited act (No. 135, p. 222, of 1898) contains the provision that jurors who attend and serve, and by whom civil and criminal cases are triable, shall receive $ 2 for each day's attendance and 5 cents for each mile from the parish seat.

If the statute went no further it might successfully be contended that the parish must pay. But the section following contains provisions which apply to both sections 12 and 13. The last section contains provision for collecting the amount before mentioned from the party to the suit who applies for a jury. This amount is taxed to the party cast in the suit. The two sections must be construed together.

The $ 12 are paid by the parish, and are to be reimbursed by the party cast in the suit. Each of these sections is a part of the general law, and has no application to expropriation cases.

A similar question was discussed in State v. Simmons, 43 La.Ann. 991, 10 So. 382. It was held that the absence of statutory provision was fatal to the claim presented in that case.

The fees in an expropriation suit are not due under statute applying to costs generally.

The law relating to expropriation makes provision for the payment of costs taxed as such, but...