Philip Werlein v. City of New Orleans

• Citation: 177 U.S. 390,20 S.Ct. 682,44 L.Ed. 817
• Decision Date: 16 April 1900
• Docket Number: No. 189,189
• Parties: PHILIP WERLEIN, Plff. in Err. , v. CITY OF NEW ORLEANS
• Court: United States Supreme Court

177 U.S. 390

20 S.Ct. 682

44 L.Ed. 817

PHILIP WERLEIN, Plff. in Err.,

v CITY OF NEW ORLEANS.

No. 189.

Argued March 16, 1900.

Decided April 16, 1900.

This action was commenced in March, 1895, by the city of New Orleans in the Civil district court for the parish of Orleans in the state of Louisiana, for the purpose of recovering from the defendant below, Philip Werlein, a certain lot of land situated in that city and described in the petition, and of which he was in possession. The facts upon which the suit was brought are as follows:

In March, 1876, one John Klein, a citizen of the state of Mississippi, commenced an action against the city of New Orleans in the circuit court of the United States in the district of Louisiana, for the recovery of over $89,000 and interest upon certain bonds issued by that city, and fully described in the plaintiff's petition. The city filed an answer denying all and singular the allegations contained in the plaintiff's petition. The case came on for hearing before the court without a jury, a jury being waived, and resulted in a judgment for the plaintiff against the city for the sum of $89,000, with 6 per cent interest, as stated in the judgment which was entered on May 2, 1876. The plaintiff, in order to obtain satisfaction, issued a fieri facias on the judgment to the marshal, who thereupon seized and took into his possession all the right, title, and interest of the city in and to the portion of ground described in the marshal's return to the writ (and being the premises in question), and advertised the property for sale. The city of New Orleans thereupon commenced an action against Klein in the United States circuit court for the eastern district of Louisiana, to prevent him from selling the property under his judgment.

In its bill of complaint the city alleged the recovery of judgment by Klien against the city, that he had issued a writ of fieri facias upon such judgment for the purpose of enforcing satisfaction of the same, and had seized under the writ the property already described, which was advertised to be sold on a day named in the bill, and that Klien had no right to issue the writ in that suit, or to cause the seizure, advertisement, or sale of the property thereunder, for the reasons and causes stated in the bill, which were, (1) that he had registered the judgment in the office of the administrator of public accounts for the city of New Orleans in accordance with an act of the legislature passed in the year 1870, and, therefore, had no right to issue any writ for the collection of the judgment against the city; (2) because Klein had assigned and transferred all his interest in the judgment before the writ was issued, to certain parties named; (3) that the writ upon which the property had been seized and advertised to be sold had issued for a larger sum than was due on the judgment: the city therefore prayed for an injunction restraining Klein, his attorneys and agents, from proceeding further in the advertisement and sale of the property under the writ; that the seizure of the property by the marshal might be adjudged to be illegal and void, and for general relief.

An order to show cause why an injunction pendente lite should not issue was granted, and upon a hearing it was ordered to issue.

The defendant Klein answered the bill, admitted the seizure of the property, and that it was advertised for sale; also, that he had procured his judgment to be registered as alleged in the bill, but denied that he thereby lost or forfeited any other remedy for the enforcement of the judgment, especially that of an ordinary execution; admitted the assignment of his judgment, but alleged that it was only as a security or pledge, and denied that the writ issued for a larger sum than was due, and he therefore asked that the injunction pendente lite might be dissolved, the perpetual injunction denied, and for such further relief as might be proper.

The case came on for hearing on bill and answer, and the court 'ordered, adjudged, and decreed that the interlocutory injunction issued be dissolved, an injunction refused, and complainant's bill of complaint dismissed with costs.' The judgment was signed June 19, 1878.

After the entry of the judgment dissolving the injunction and dismissing the bill, the marshal took proceedings to sell the property which he had seized, and on August 21, 1878, sold the same to Andrew C. Lewis, the highest bidder, through whom by several mesne conveyances the appellant claims title, and from the time of the above sale he or his grantors have been in possession.

The petition in the present suit, filed by the city, describes the premises in question, and alleges that the defendant, appellant herein, is in possession thereof, and unjustly claims title thereto, with the improvement thereon, valued in all at $15,000. The city avers that the defendant is not and never was the owner of the property, and that his only alleged title thereto is derived through mesne conveyances from a sale made by the United States marshal to Andrew C. Lewis, as above stated. The city further alleges that the sale by the marshal to Lewis was absolutely null and void, and that no title or right whatever in or to the property passed by that sale to Lewis or through him to the defendant herein; that the property was dedicated to public use long prior to the date of the marshal's sale, by Bertrand and John Gravier, and that it forms part of the Place Gravier, in the Faubourg St. Mary, in the city of New Orleans, and that the property was at the date of the marshal's sale, and has ever since been, unsusceptible to alienation or private ownership or of private possession, and that the defendant's possession is illegal and in bad faith. The petition further alleges that the city was invested by law with the administration and possession, for the public benefit, of all property in the city dedicated to public use, and that it had the right to sue for the recovery of the possession of and to establish the title and right of use of the public to any such property and the petition therefore prayed that the city might have judgment against the defendant, decreeing the property purchased at the sale to be property dedicated to public use, and recognizing plaintiff's right to the possession and administration of the same, and ordering the defendant to deliver to plaintiff possession of the property free from all encumbrances, and for costs.

The defendant answered the bill, and set up therein the recovery of the judgment of Klein against the city, the seizure of the property thereunder, the commencement of suit by the city to enjoin the sale of the property, and the judgment of the court thereon dismissing that bill and dissolving the injunction, and defendant therefore alleged that the right of Klein to proceed and sell the land described in the petition, under his execution, was in and by that judgment recognized, affirmed, and established, and such right was therefore res judicata.

Other defenses were set up denying that the land had in fact ever been dedicated to public use, or that it had ever been so used; also alleging that the city had regularly collected taxes upon the property ever since its purchase by Lewis (more than fifteen years), and that by reason of the facts the city was estopped from maintaining its action.

Upon these pleadings the parties went to trial, and the plaintiff, after giving evidence tending to prove its case, admitted that the defendant held a regular chain of title from and through Lewis, the purchaser of the land under the sale by the United States marshal, but denied the validity of such title. The defendant offered in evidence an exemplification of the proceedings and judgment in the suit brought to enjoin the sale by the marshal, which offer was made for the purpose of proving the plea of res judicata. The plaintiff objected to the evidence on the ground that the cause of action involved in the suit was not identical with the cause of action in the suit on trial, because the sole and only issues decided in the other suit were whether John Klein, having registered his judgment against the city of New Orleans in the office of the comptroller, pursuant to a statute of the state, and having elected that method of collecting his judgment, had not waived his right to pursue any other method of collection; also whether John Klein was the owner of the judgment, and, if so, whether he was estopped by having registered in the office of the comptroller a transfer of the same, and also whether the judgment was not subject to certain credits; whereas the issue involved in this case was whether the property upon which it is alleged the execution was levied and the property sold was legally subject to such seizure and sale; also that the thing demanded in the other suit was not the same thing demanded in this suit, the prayer in the other being for an injunction restraining Klein from selling the property in dispute, whereas the thing demanded in this case was a decree declaring the sale effected by Klein absolutely null and void. The court sustained the objection and refused to admit the evidence, and the defendant duly excepted.

Oral evidence was then given for the purpose of sustaining the other defenses set up by the defendant, and the trial having been concluded, the judge made a finding in fovor of the complainant, and judgment was thereupon entered decreeing that the property described therein was property dedicated to public use, and that the right of the city to the possession and administration of such property must be recognized, and the defendant was ordered to deliver possession of the property to the city free from all encumbrances.

An appeal was taken from the judgment to the supreme court of the state of Louisiana, where it was affirmed, and the defendant below has brought the case here on writ of error. facts, delivered the opinion of ...