Police Jury of Parish of St. James v. Borne

• Decision Date: 29 May 1939
• Docket Number: 35325.
• Citation: 192 La. 1041,190 So. 124
• Court: Louisiana Supreme Court
• Parties: POLICE JURY OF PARISH OF ST. JAMES v. BORNE et al.

190 So. 124

192 La. 1041

POLICE JURY OF PARISH OF ST. JAMES v. BORNE et al.

No. 35325.

Supreme Court of Louisiana.

May 29, 1939

Appeal from Twenty-Third Judicial District Court, Parish of St James; Henry L. Himel, Judge.

Proceeding by the Police Jury of the Parish of St. James against Walter Borne and others to enjoin defendants from interfering with plaintiff in the exercise of its right in keeping a certain road open to the public. From judgment granting injunction defendants appeal. On motion to dismiss appeal.

Motion denied.

Morrison & Sims, of Hammond, for appellants.

Sigur Martin, of Lutcher, and A. L. Talbot, of Napoleonville, for appellee.

ROGERS, Justice.

The Police Jury of the Parish of St. James established a Farm-to-Market public road, known as ‘ Rear Baytree Settlement Parish Road.’ The Works Progress Administration, under the sponsorship of the policy jury improved, drained and hardsurfaced the road during the years 1936 and 1937. The road was used by the inhabitants of the Rear Baytree settlement from the time of its completion until the defendants, the title owners of the portion of land dedicated as a public road, caused it to be closed. Whereupon the police jury filed this suit for an injunction to restrain the defendants from interfering with plaintiff in the exercise of its rights in keeping the road open to the public. The rule to show cause why a preliminary injunction should not issue and the case, on its merits, were, by consent of counsel, tried at the same time.

After the trial and argument were completed, the following agreement was entered into, as shown by the minutes, viz.; ‘ It is understood that the Judge shall have ten days to render judgment herein. On rendition of judgment, copies to be sent to James Morrison, Sigur Martin and Aubert Talbot; Court will, on rendition of judgment grant an order of appeal, returnable to the Supreme Court according to law and bond to be fixed also according to law thereby dispensing attorneys of appearing in court for moving for appeal. The above being agreed to by the attorneys for plaintiff and defendants.’ Subsequently, the court below rendered judgment in favor of plaintiff and against the defendants decreeing the action of the Police Jury in dedicating the said public road to be valid and perpetuating the writ of injunction. The judgment was rendered and signed on January 19, 1939. And on the same day, in open court, the trial judge granted a suspensive and devolutive appeal, returnable to this court on or before March 13, 1939, in accordance with the ‘ agreement entered into by and between counsel for plaintiff and counsel for defendants, under date of January 5th, 1939.’ Bond for the suspensive appeal was fixed at $1000, and for the devolutive appeal, at the sum of $500. Defendants did not perfect either appeal by furnishing the required bond.

On March 10th, 1939, three days before the appeal was returnable to this Court, the district judge, at chambers, granted another order of appeal reading as follows:

‘ As per agreement entered into by and between counsel for plaintiff and counsel for defendants, under date of January 5th, 1939:

‘ It is ordered that a devolutive appeal be and is hereby granted to the said defendants from said above judgment, returnable to the Honorable the Supreme Court of the State of Louisiana on or before Friday, April 14, 1939, upon defendants furnishing bond, with good and solvent security, conditioned as the law directs, in the sum of Five Hundred Dollars for said devolutive appeal.’

The defendants perfected the appeal on March 29, 1939, by furnishing a cash bond. No citation of appeal was issued or served. The...