Town of Thibodaux v. Stark

• Decision Date: 29 October 1917
• Docket Number: 22226
• Citation: 76 So. 806,142 La. 375
• Court: Louisiana Supreme Court
• Parties: TOWN OF THIBODAUX et al. v. STARK

76 So. 806

142 La. 375

TOWN OF THIBODAUX et al. v. STARK

No. 22226

Supreme Court of Louisiana

October 29, 1917

Rehearing Denied November 26, 1917

Edward N. Pugh, of Donaldsonville, and Martin, Pugh & Coignet, of Thibodaux, for appellant.

Caillouet Caillouet & Howell, of Thibodaux, for appellees.

OPINION

PROVOSTY, J.

Defendant is sued for his proportion of the cost of paving the street upon which his property fronts in the town of Thibodaux. The suit is brought jointly by the town and by the contractor who did the work, the town suing 'for the use and benefit' of the contractor; but judgment is asked only in favor of the contractor. The allegation is made that after the contract for the work had been let as authorized by Act No. 241, p. 537, of 1912, and the work had been done and accepted and the amount due by each abutting proprietor had been fixed, and the assessment to pay the amount or amounts thus ascertained to be due had been levied as authorized by said act, the town transferred to the contractor its right to collect the amounts thus due, as well as to enforce the lien securing the payment of same, 'with full power and authority to sue in the name of the town to enforce collection of the amounts thus due.'

Defendant excepted to the suit on the ground that judgment should have been asked in favor of the town, and not of the contractor because the town was without authority to make the transfer and hence the situation must be viewed as if the transfer had not been made.

What dispositions the town and the contractor may have made as between themselves with reference to the claim sued on is no concern of defendant, so long as the opportunity to make full defense is not thereby impinged upon, and so long as the judgment in the suit will be a full protection to him against a second suit upon the same cause of action; and there can be no denial that defendant could make his full defense in this suit as brought, and that the judgment in the suit would be a full protection to him against a second suit upon the same cause of action, since he and the town and the contractor are the only parties in interest, and all three are parties to the suit, and, as such, will necessarily be bound by whatever judgment is rendered in it.

In the petition the proceedings by which the street paving was ordered and the contract for it was let are alleged in extenso; and in the answer their validity is contested. On the trial the evidence to prove their having taken place was offered by plaintiffs. After the conclusion of the evidence, but before argument, the plaintiffs filed a plea of res judicata based upon the judgment in the suit of Roth et al. v. Town of Thibodaux et al., 137 La. 210, 68 So. 412, wherein these same questions were litigated and adjudicated between the same parties. The learned counsel for defendant argue that by alleging and proving these proceedings and calling upon him to make his defense to them, the plaintiffs have reopened the issues of the said Roth suit, and waived the right to invoke res judicata. In fact, that inasmuch as the invalidity of these proceedings appears upon their face the plaintiffs by alleging and proving them have alleged and proved themselves out of court.

How plaintiffs could have set forth the claim in suit without setting forth these proceedings, or proved the said claim without proof of said proceedings having been had, the learned counsel do not, and would, we imagine, be at a loss to, suggest. Moreover, the argument assumes as a fact that the said proceedings do appear upon their face to be irregular, whereas that fact is the very one into which the plea of res judicata precludes inquiry.

Counsel also say that the plaintiffs should have filed the plea before offering evidence. They need not have filed it at all. Keystone Life Ins. Co. v. Van Schlemmer, 122 La. 280, 47 So. 606.

Lastly, defendant seeks to contest the mode of the apportionment of the cost of the work. But that issue was not raised in the pleadings, and hence is not in the case.

Section 4 of said Act No. 241 of 1912 provides as follows:

'Provided that the city councils, instead of enforcing the said assessment within the time above fixed, upon payment in cash, by the property owner, of 20 per cent. of the amount due by said property owner, may in their discretion authorize the mayor to sign and issue certificates showing the amount respectively due by the persons and properties on streets and alleys * * * so paved and improved which shall be payable in 1, 2, 3, 4, and 5 years (or sooner, at option of owner of the property) with 8 per cent. interest per annum, interest payable annually, and 10 per cent. attorney's fees if sued on.'

Such certificates were not issued in this case. Nevertheless plaintiffs claim the attorney's fees which would have been due if certificates had issued and suit had been brought upon them. The argument is that these fees are allowed as a penalty for failure to pay the assessment promptly, and that therefore defendant comes within this law. He may within the spirit and motive, but not within the letter; and the statute being one imposing a liability and penalty must be taken as it is written (36 Cyc. 1180), and, as written it imposes a liability only when the suit is upon a certificate.

The court rejected this claim for attorney's fees, and otherwise gave plaintiffs judgment.

The judgment is in rem, and also unqualifiedly in personam. Plaintiff recognizes that it should have been only qualifiedly in personam. It was rendered as prayed for in the petition, and therefore the responsibility for the error rests upon plaintiff, and not upon the trial judge. However, the error would have been corrected if the trial court's attention had been attracted to it; and hence the correction of it by this court need not have the effect of throwing the cost of the appeal upon the plaintiff. Kelly v. Chadwick, 104 La. 735, 29 So. 295.

Since the foregoing opinion was written the defendant has filed a supplemental brief in which the following decisions are cited in support of the contention that by failing to plead res judicata in their petition, but suing upon the claim in suit as if the validity of the proceedings upon which it is founded had never been litigated and adjudged, the plaintiffs have reopened this issue, and waived the benefit of the former judgment, to wit: Thompson v. Vance, 111 La 554, 35 So. 741; Maclin v. New England Ins. Co., 33 La.Ann. 802; Ward v. Joslin, 186 U.S. 151, 22 S.Ct. 807, 46 L.Ed. 1093; Brownsville v. Loague, 129 U.S. 505, 9 S.Ct. 327, 32 L.Ed. 780; S. P. R. R. Co. v. U.S. 168 U.S. 1, 18 S.Ct. 18, 42 L.Ed. 355; Bryar v. Campbell, 177 U.S. 649, 20 S.Ct. 794, 44 L.Ed. 926; Pearce v....