Price v. Town of Ruston
| Citation | 148 So. 512 |
| Decision Date | 05 June 1933 |
| Docket Number | 4537 |
| Court | Court of Appeal of Louisiana (US) |
| Parties | PRICE ET AL. v. TOWN OF RUSTON |
Rehearing granted July 15, 1933.
Barksdale Warren & Barksdale, of Ruston, for appellant.
Elder & Elder, of Ruston, for appellees.
This suit presents practically the same issues involved in the suit between the same parties, No. 4187 on the docket of this court, decided by us on the 14th day of January, 1932, and reported in 19 La.App. 356, 139 So. 55. In that suit plaintiffs were nonsuited on appeal on their principal demand, viz., rental value of the third story of the "Price" building in the town of Ruston, from January 25, 1930, until April 1, 1931, a period of practically fourteen months, at $ 125 per month, because it was found by the court that the evidence did not establish what the fair rental value of said property was during said period.
The present suit is for the same amount of "rent" as was sought in the former suit, which we shall hereafter refer to as No. 4187, and for the following additional amounts:
1. $ 19.28 expended on repairing said property, necessitated by abuse of it while in defendant's possession;
2. $ 31.27, one-half of costs incurred in lower court in previous suit adjudged to be paid by defendant;
3. $ 5, costs paid by plaintiff in Court of Appeal in suit No. 4187.
Plaintiffs' petition is lengthy. It accurately summarizes the history of the litigation between these parties, culminating in the present suit, including the suit for specific performance finally adjudicated by the Supreme Court. 171 La. 985, 986, 132 So. 653. For the sake of brevity, we will only mention the high points of this judicial history as a preface to this opinion:
In the year 1910, Mrs. Arilla A. Price, the owner of a well-located lot in the business section of Ruston, decided to erect a two-story commercial building thereon. The Ruston Lodge No. 1134 of the Benevolent and Protective Order of Elks desired, at their expense, to erect a third story on Mrs. Price's building, and an agreement was reached between them on the proposition. To protect herself against the possibility of the third story getting into the hands of irresponsible and careless persons, there was incorporated in the contract between her and the Elks Lodge an option or preference right in her favor to purchase the third story in the event the Lodge should desire to sell it. Mrs. Price died after the building was completed, leaving by last will and testament all her property to her husband who, before any of this litigation arose, also died. Plaintiffs are his sole heirs.
The Elks Lodge gave a mortgage on their part of the building to the Ruston Building & Loan Association. This mortgage was foreclosed, and at sheriff's sale on January 25, 1930, defendant, the town of Ruston, became the purchaser at the price of $ 3,100. Plaintiffs were represented at the sale and immediately took the necessary steps to avail themselves of the preference right or option in favor of Mrs. Price in her contract with the Lodge above referred to, and tendered to the town and to the sheriff of Lincoln parish $ 3,100 in cash, and requested that deed of the property be made to them. This was refused, and immediately thereafter the suit for specific performance was instituted by plaintiffs against the town, to whom the sheriff had made deed. This suit was won by plaintiffs in the lower court and in the Supreme Court. 171 La. 985, 986, 132 So. 653. Possession of the property was delivered to plaintiffs on March 5, 1931. Plaintiffs then instituted suit No. 4187 against the town of Ruston to recover a fair rental for the use of the property for the time it was in defendant's possession, being the time the suit for specific performance was in the courts and to March 5, 1931, when it was delivered to plaintiffs. Defendant, after filing certain exceptions and pleas, which were overruled, answered. The source of its title to the property, viz., sheriff's sale in the foreclosure suit of the Building & Loan Association v. Ruston Lodge No. 1134 B. P. O. E., is alleged upon, and plaintiff and defendant in that foreclosure suit were called in warranty by the town, under order of the court. Both of these alleged warrantors excepted to the call in warranty served upon them on the ground and for the reason that it disclosed no cause or right of action against them. Both exceptions were sustained. On the merits there was judgment rejecting the demands of plaintiffs and the reconventional demand of defendant, casting each side for one-half the costs. Plaintiffs appealed to this court. The judgment of the district court was affirmed in all respects save as to the claim for rent and as to this there was judgment of non-suit. 19 La.App. 356, 139 So. 55, 57.
We have detailed the pleas filed and actions taken by the parties and rulings of the court in suit No. 4187, because it was necessary to do so on account of their relation to and bearing upon like or similar pleas, etc., filed and passed on in the case at bar.
In the present case defendant filed a plea of res judicata. It is alleged in this plea that the "rights and equities between the parties hereto with respect to the relief sought," particularly the prayer for judgment for amount paid out as costs of court in the former suit, have been adjudicated in said suit No. 4187. This plea was overruled. Exceptions of no right and no cause of action were filed and also overruled. Defendant then answered. It is admitted therein that delivery of the third story of the Price building to plaintiffs was made immediately after the Supreme Court decided they were the owners thereof, upon payment of the sum of $ 3,100, being the price paid for same by defendant at sheriff's sale; but it is specially denied that plaintiffs deposited said price in the registry of the court, as by them alleged, after tender of same had been refused by defendant. But it is averred they retained the amount in their possession while the appeal was pending in the Supreme Court and paid no interest thereon during said time; that plaintiffs were not entitled to possession of said premises under the judgment of the Supreme Court until said money was paid over to defendant; that said third story was not occupied by it during the appeal to the Supreme Court, nor was it rented, and no income whatever was derived therefrom; that said premises were held by it pending said appeal because to have surrendered possession thereof would have been an acquiescence in the judgment of the district court appealed from.
Defendant further alleged that it acquired said property in good faith at public sale by the sheriff of Lincoln parish in foreclosure suit of Ruston Building & Loan Association v. Ruston Lodge No. 1134 of the B. P. O. E., and held possession thereof under an apparently valid deed executed by said sheriff in pursuance of writ of seizure and sale in said suit, and that said building and loan association and said Elks Lodge are warrantors of defendant's title and right of possession, and that in event any judgment should be rendered against said defendant, it should recover like judgment against said warrantors in solido. The alleged warrantors, under order of court, were cited as such and served. Both filed pleas of res judicata, basing such pleas upon the judgment of the district court in the first suit for rent. These pleas were sustained by the court and the calls in warranty dismissed. Separate judgments were signed.
The case was tried on the merits on the issues tendered by petition and answer, and the lower court, in keeping with the holdings of this court in case No. 4187, gave plaintiffs judgment for the amounts sued for, excepting the amount claimed for repairs. Defendant suspensively appealed from this judgment and devolutively appealed from all other decrees and orders in the case, interlocutory or final.
In this court the building and loan association and the Elks Lodge filed exceptions of no right and no cause of action to the attempt by defendant to call them in warranty.
Defendant's Plea of Res Judicata.
This plea is primarily directed against plaintiffs' effort to recover judgment for the costs paid by them in suit No. 4187, incurred in this and the lower court. The total of the costs of that suit in the district court was $ 62.55. Each side was cast for half of the amount. Plaintiffs advanced $ 5 to lodge appeal in that case in this court. Essentially they won the case on appeal, but our decree does not fix liability for costs in this court. It is silent on the subject. Under section 2 of Act No. 229 of 1910, these costs could have been assessed against either party to the suit, or divided, as was done with the costs incurred in the district court. Defendant contends that both items of costs have been finally adjudicated by the courts and liability therefor fixed by the decrees disposing of the case, and that such costs must be taxed and collected in the case and in the court wherein they were incurred. We think this position correct, as far as the district court costs are concerned, and that it is sustained by reason and authority.
In cases of nonsuit, article 536 of the Code of Practice provides that the judgment cannot be pleaded in bar of a second suit for the same cause of action, "provided the plaintiff show that he has paid the costs of the first suit." In paying defendant's half of the costs of the first suit in the lower court, plaintiffs were probably following the language of this article literally out of an abundance of caution. However, we think the above-quoted part of this law refers only to the costs of the first suit for which the plaintiff has been cast. It does not seem reasonable that...
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