Denton v. Fonda

Same Case. — On a Re-hearing. Land, J. We granted a re-hearing in this case to consider a second opposition filed by G. W. Denton to the Curator’s tableau of distribution. As this opposition was not disposed of by the judgment appealed from, we did not consider it in the opinion prepared in the first instance; but as we are satisfied that Denton is concluded by the judgment of the lower Court homologating the final tableau of distribution, although it is silent as to this particular demand, it is our duty to pass upon the merits of his second opposition. The opponent claimed in his second opposition to be placed on the tableau as a privilege creditor for the sum of two hundred dollars and eighteen cents, the costs of filling up certain lots which he at the time held and possessed as owner, but which were afterwards adjudged to be the property of the succession of James Erwin. The contractor who filled up the lots, sued Denton for the sum above mentioned, which he paid with a conventional subrogation to all the rights of the former. Whether Denton has a right to recover from the succession of Erwin the amount paid to the contractor, depends on the question whether the latter could *134 have recovered the cost of filling up the lots, in an action against the succession, for the only rights which Denton claims to enforce, are those which he acquired from the contractor by the effect of the subrogation. It has already been held that a contractor by municipal authority has no right of action against the proprietor, for filling up lots in the city of New Orleans, unless he shows that the contract was adjudicated to him as the lowest bidder, in pursuance of the 22d section of the Act of the 21st March, 1850 ; and as Denton has failed to show that the contract was adjudicated to tho contractor as the lowest bidder, in pursuance of the provisions of the statute, he has failed to show any right of action in him against the succession of Erwin. See Session Acts 1850, p. 164; Fox v. Sloo, 10 An. p. 11; Fox v. City of New Orleans, 12 An. 154. As the contractor had no right of action against the succession of Erwin, Denton acquired none by the effect of the conventional subrogation. It is therefore orde-ed, adjudged and decreed, that our former judgment, which virtually bars said second opposition Of G. W. Denton, remain undisturbed.