Womack v. Varnado
| Decision Date | 08 November 1943 |
| Docket Number | 37242. |
| Citation | 16 So.2d 825,204 La. 1019 |
| Court | Louisiana Supreme Court |
| Parties | WOMACK et al. v. VARNADO. |
Rehearing Denied Feb. 7, 1944.
Robert S. Ellis and Ponder & Ponder, all of Amite, for defendant-appellant.
Shelby S. Reid, of Amite, for plaintiff-appellee.
Sixteen persons, invoking the provisions of Act No. 192 of 1920, as last amended by Act No. 120 of 1940, and alleging themselves to be residents and taxpayers of Tangipahoa Parish instituted this proceeding against Lawrence F. Varnado to obtain the abatement of an alleged gambling nuisance, a place of business conducted by defendant under the name of 'Uncle Bud's Cabin' and situated within the mentioned political subdivision.
Supporting and annexed to the petition of plaintiffs are affidavits of two other citizens in which there are detailed matters relating to defendant's operation of an asserted gambling house at the mentioned place.
After the suit's filing the district court ordered in writing that a rule be directed to defendant commanding him to show cause at a designated hour two days later why an injunction should not issue and the claimed nuisance abated; and it also caused the issuance of a temporary restraining order prohibiting the operation of defendant's place of business for any purpose pending the trial and determination of the rule.
On the rule's return day, defendant filed exceptions of no cause and no right of action, a plea of unconstitutionality of the statute on which the proceeding is predicated, and an answer. The exceptions and plea were overruled; then followed a trial of the merits of the rule. Plaintiffs were granted a judgment, the decretal portion of which reads:
'It is ordered, adjudged and decreed that an injunction issue herein restraining and prohibiting the defendant, Lawrence F Varnado, from the operation of the gambling house known as 'Uncle Bud's Cabin' located in the Parish of Tangipahoa, State of Louisiana, about two and one half miles north of Kentwood, and further prohibiting and enjoining the said Lawrence F. Varnado, from conducting or being concerned in the conducting of a gambling house or other like nuisance anywhere within the State of Louisiana; and
'It is further ordered and decreed that the said premises known as Uncle Bud's Cabin above described shall be closed for a period of one year from the date of this judgment, and prohibiting and enjoining its use for any purpose or purposes whatsoever during said period.
'It is further ordered that the defendant pay all costs of this suit.'
When the case was called for argument in this court, defendant having perfected an appeal, there was presented and filed a written motion signed in proper person by six of the sixteen plaintiffs and carrying the written concurrence of defendant. In it movers prayed that the appeal be dismissed or, in the alternative, that the cause be remanded to the district court so that their names as petitioners might be withdrawn. They allege that instructions were given to their attorney to dismiss both the suit and the appeal for them; and further it is averred that 'they were of the impression they were signing a general petition to remove gambling and slot machines from the Parish of Tangipahoa, which is not being done, and did not intent to single out one establishment against which suit would be filed, and further show that they have neither employed nor paid any attorney to represent them in any such court proceeding.'
The appeal cannot be dismissed. The remaining ten plaintiffs and appellees, each of whom has a substantial interest in the outcome of the litigation, have not joined in or consented to the motion. No withdrawal or dismissal of an appeal will be allowed, after jurisdiction of the appellate court has attached, unless consent to do so is given by all of the interested appellees. Code of Practice, Article 901; Succession of Trouilly, 52 La.Ann. 276, 26 So. 851; Noble v. Landry, 175 La. 367, 143 So. 329.
Neither do we think that there is merit to the alternative request to remand the case to permit a withdrawal of movers' names from the petition, or, in other words, to effect a discontinuance of the suit as to them. A plaintiff cannot discontinue his action after the trial court's rendition of judgment. Code of Practice, Article 491; Trenchard v. New Orleans R. & Light Co., 123 La. 36, 48 So. 575; Noble v. Landry, supra.
The motion, therefore, is denied.
Defendant, the appellant herein, first urges that plaintiffs are without interest and cannot be heard in this matter because they do not constitute the ten or more taxpayers required by Section 3 of Act No. 192 of 1920, as amended by Act No. 120 of 1940. This section provides in part that '10 taxpayers, whether natural or artificial persons and whether citizens or non-residents, shall have the right to file a suit * * * to abate the nuisance created by such gambling house * * *.'
In the record is a certified copy of the assessment roll of the Parish of Tangipahoa for the year 1942, being the last roll on file, which discloses that thirteen of the sixteen plaintiffs are assessed with real estate. Considering this, and there being nothing to show that they have since disposed of their property, it seems correct to say that those thirteen property owners are taxpayers within the meaning and intendment of the quoted statutory provision.
But defense counsel say that many of those persons are completely relieved from the payment of taxes by the homestead tax exemption allowance and hence they are not taxpayers. This argument is untenable. The assessed property is subject to taxation; and were it not for the Property Tax Relief Fund in the state treasury, created by Act No. 54 of 1934, and maintained by the proceeds of various taxes imposed by the Legislature, the payment of taxes by such owners would be required. From the mentioned Relief Fund there is reimbursed to the various tax recipients the amounts that they lose by the homestead exemption allowances; and if for any reason the Relief Fund should become inadequate to provide full reimbursement, the owner would be called upon and made to pay his assessed taxes less whatever amount is cared for by such Fund. A...
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