Breaux v. Negrotto

On Application for Rehearing, and Rule, Etc. Watkins, J. Our .opinion was handed down on Monday, December 15, 1890, and a written application for rehearing was filed by counsel of record for the defendants. On the 9th of January, 1891, plaintiff’s counsel applied for a rule on the defendants to show cause, on a day designated, why a decree of this court should not issue, on the ground that same had become final, because the application for rehearing was unaccompanied by a printed statement of points and authorities on which same is founded; and because no extension of time to file same was applied for, as required by Rule IX of this court. Contemporaneously therewith defendants filed a motion for a like rule on plaintiff to show cause why the cause should not be remanded to the lower court, with instructions to receive certain alleged newly discovered evidence material to their interest.- As these are interlocutory proceedings which must be disposed of in advance of the main question, the granting vel non of the defendant’s application for a rehearing, we have thought it expedient to treat, and dispose of them seriatim. *438 I. To plaintiff’s rule defendants original counsel answered that the reason he did not file a printed statement of points relied upon in his application for a rehearing, accompanied by a list of authorities, was that he relied for a rehearing exclusively upon points made, and authorities cited in his original printed briefs on file, and to which he merely referred, inviting the attention of the court to them in his application. That before the expiration of the legal delays for filing an application for a rehearing, time was granted by the court to an amicus curias to prepare and file a printed brief and argument in support of the application for rehearing he had already filed; and that said amicus curiae did prepare and file such a printed brief in this cause, on the 3rd of January, 1891. That defendant’s counsel conferred with said amicus curiae, on the day his application for time to print and file briefs was granted; and that they agreed upon the line of argument and authority the latter should therein pursue. To this answer is appended the affidavits of counsel for the defendants, as well as of the amicus curiae, fully substantiating the statement in the aforesaid answer. It seems to us that the spirit, if not the letter of the rule invoked, has been pursued. Printed briefs are what the rule requires, and they were furnished and filed several days in advance of plaintiff’s rule to show cause. They gave the court fullest details of the evidence and argument on which defendants relied, and nothing further was required or necessary. To hold otherwise would.be to make rules of convenience, unnecessarily harsh and oppressive. We are of opinion that our rules should receive a liberal construction, and so construing them, w.e think the defendant’s answer ample and justifies our refusal to make plaintiff’s rule absolute. II. ' In so far as the-defendant’s motion to remand is concerned, we think it entirely out of time. While it is quite true that the judgment is not yet final,, and that'it is alw'ays within the power of the court, in appropriate cases, to remand causes for the purpose of enabling parties- to adduce new evidence, yet application for relief must be made on the original hearing of the cause, and come well supported by reasons justifying its allowance. Louisiana Ice Manufacturing Company vs. City of New Orleans, 43 An. — *439 But we are not aware of any precedent for such relief being granted on an ex parte showing made as a supplement to an application for a rehearing. Even if this right be conceded, and the materiality of the newly discovered evidence, also, the affidavits which are appended to the motion, make no averment of any diligence on the part of the defendants to obtain this evidence, which is alleged to have just been discovered. ' This evidence is said to consist of an exemplification from the tax records in the office of the Comptroller of the City of New Orleans, and certainly it was quite as accessible to defendants at the time of the trial in the District Court, as it would be on a second trial. If we should adopt the rule suggested in defendant’s motion, in our opinion serious inconvenience, if not injury, would inevitably result. It would tend to the destruction of certainty in judicial proceedings, and to render litigation practically interminable. We deem it to be our duty to hold all litigants to a‘just observance of due diligence. The application to remand is without merit. It should not, properly, have been considered until after the application for a rehearing had been disposed of, but as we believed that it could not be allowed in any event, and as it was put as a preliminary proposition, we thought best to couple its consideration with that of plaintiff’s rule to show cause. III. Defendant’s application for a rehearing rests on four grounds, viz: 1. That our opinion is in error in holding that because plaintiff alleged that the tax for which the land was sold was at the time prescribed, there was no necessity for him to have made a previous tender of the price of adjudication. . 2. That it was error to hold that there was no “ notice ” preceding the tax sale. 3. That it erroneously failed to pass on his reconventional demand. 4. That our opinion should have passed upon and sustained their plea of five years’ prescription. It is unnecessary for us to enter into a detailed discussion of these points separately, or to present an elaborate. statement of our views in refusing the motion. It is sufficient for us to say that the provisions of Article 210 of the Constitution do not seem to contemplate a “previous legal tender” of the price *440 of adjudication being made — such as is contemplated in C. P., 404, et seq., and R. C. C., 1933, et seq., and 1911,. et seq. — as a condition precedent to the institution of the suit for rescission of the sale. It declares: “No sale of property for taxes shall be annulled for any informality in the proceedings until the price paid, with 10 per'cent, interest, be tendered to the purchaser.” Const. Art. 210. We think the tender may be made at any time prior to the rendition of final judgment decreeing the nullity of the sale; or the price may be adjusted and liquidated in the judgment. Certain it is that the constitutional mandate must be carried into effect, and the tax purchaser must be compensated, and the judgment annulling the sale can not be completed until that is done. On inspection of the record we find that the defendants urged, amongst other exceptions, the prescription of three and five years; the former against the plaintiff’s action to annul a tax sale, and the latter against the alleged informalities in the sale, and especially against the want of notice required by the 210th Article of the Constitution. In the application for rehearing the former is not insisted upon, but the latter is. , The authentic act of conveyance to the State, by the State Tax-collector of the property in question, bears date 17th of January, 1885, and this suit was filed on the 1st of May, 1890, more than five years having intervened between those two dates. The provisions of R. C. C., 3543, are that “ all informalities connected with, or growing out of any public sale, made by any person authorized to sell at public auction, shall be prescribed against by those claiming under such sales, after the lapse of five years from the time of making it, whether against minors, married women, or interdicted persons.” Defendant, Negrotto, Jr., acquired an authentic title to this property from the State, on the 19th of August, 1889, and it is these titles the plaintiff seeks to annul, and under which he, as defendant, claims. He demands judgment recognizing him as owner, and putting him in possession of same thereunder. It is perfectly clear that if this plea of five years’ prescription is applicable, it must be sustained. In Person vs. O’Neal, 32 An. 237, our predecessors said this pre *441 eription was not applicable to such an informality in a tax sale, as the absence of the notice required by the Constitution, and which is the same notice under consideration in this case. But in Barrow vs. Wilson, 39 An. 410, that decision was overruled, and in so doing, we said: “We are also referred to the case of Person vs. O’Neal, 32 An. 237, where the court said, in commenting on the statute: Whatever defects in a tax sale may be cured by the lapse of three years, the want of personal notice to the owner, or his agent or curator, can not be, because such notice is a condition precedent to the seizure, without which there could be no sale.’ We are compelled to overrule this decision. It is in direct conflict with a former decision which held that even under Article 3543, C. C., want of such notice was a relative nullity cured by the lapse of five years.” Allen vs. Couret, 24 An. 24; Mulholland vs. Scott, 33 An. 1045. There is no question of the fact that between our opinion in the' instant case, and that in Barrow vs. Wilson, there is a conflict which can not be reconciled; and it is, therefore, inevitable that one must yield. After a most careful and serious consideration, we have deliberately reached the conclusion that the views expressed in Barrow vs. Wilson ought to be modified so as to conform to the views expressed in the opinion now under consideration. In treating of, and applying the prescription of three and five years, in that case, this court recognized the decision as a departure from the theretofore settled course of judicial construction to the contrary, but deemed the application of the Act of 1874 an absolute necessity in order to give a quietus to the agitation of tax suits. Hence we were not, on the spur of the moment, prepared to consider all of its ultimate bearings and consequences. Indeed, in overruling Person vs. O’Neal, we were guided by a decision by our predecessor in Allen vs. Couret, 24 An. 24, and one of our own, subsequent in date, in Mulholland vs. 33 An. 1045; both of which justified our action in so doing. Not Scott, until this ease arose, was our attention attracted to the fact that the notice required as a condition precedent to the seizure of property of a delinquent tax payer was founded upon a constitutional requirement, the absence of which could not be considered as a relative nullity which may be cured by the prescription of three, or five years. Hence our opinion in Barrow vs. Wilson was error, to the extent *442 of holding that, in respect to this notice, the prescription of three and five years was tenable. Making this concession and alteration will have the corresponding effect of reviving and giving force and effect to Person vs. O’Neal. This will align Barrow vs. Wilson with the principles announced In the matter of Orloff Lake, 40 An. 143, and In re Douglass, 41 An. 765. Having amended and altered our opinion in Barrow vs. Wilson so as to harmonize with the constitutional requirement with regard to notice to the tax payer, and with this opinion, the application for a rehearing must be overruled. It is therefore ordered and decreed that the' judgment appealed from be so amended as to allow the defendant and appellant, Domingo Negretto, Jr., on his reconventional demand, the sum of $102, with the constitutional interest of 10 per centum from the 19th of August, 1889, and all costs of both courts; and that, as thus amended, our judgment remain undisturbed. Rehearing refused.