Denis v. Houston

38 La. Ann. 39

• Court: Supreme Court of Louisiana
• Decided: January 15, 1886
• Docket: No. 9536
• Status: Published

Opinion

The opinion of the Court was delivered by

Manning, J.

This is an injunction restraining the defendant fromi selling a square of ground in New Orleans for taxes.

The petition alleges ownership and that the collector has advertised the property for sale to enforce payment of taxes due. the State for 1876 amounting to $290, and City taxes for 1870 and 1877 amounting to $1,000. The ground of injunction is that the property was sold in 1878 at the succession-sale of Henry Passman, its then owner, and all liens and privileges were shortly thereafter cancelled on the mortgage books and among them, these tax inscriptions, and that the defendant must look to the proceeds of that sale for payment.

The answer is a general denial with an averment that the taxes set out in the plaintiff’s petition are legal, due and exigible, and concludes with a prayer for the dissolution of the injunction.

Obviously the sum involved is below our jurisdiction, and there is not such question of the legality or constitutionality of the tax as would attract our jurisdiction independent of the amount in controversy. Adler v. Bd. Assessors, 37 Ann. 507.

There was judgment for dissolution on May 14,1885, and an appeal was taken which was perfected by a bond executed and filed June 10.

Two days after, a letter was written by the defendant’s attorneys to those of the plaintiff which has found its way into the transcript and appears at the close of it. It is as follows :

New Orleans, June 12, 1885.

Brank W. Baker, Bsg.:

Dear Sir — Mr. Houston has just sent us a statement of amount due for State and City taxes on property described in petition filed in suit .J. C. Denis, President New Orleans Cotton Press Association vs. J. D.

Houston, tax collector, as follows:

State tax 1876 interest and costs to date....................$ 537 58

City tax 1870 “ “ .................... 2,676 85

$3,214 43

We therefore admit that the amount involved in said suit is upwards of three thousand dollars.

Very truly yours,

BLANC & BUTLER,

Atty. for J. D. Houston, tax col.

It is very clear that only $1,290 of taxes were injoined. If more were due there was no hindrance to the collection of the excess over that sum, and therefore such excess is not in controversy. There was nothing before the lower court altering or increasing the sum set out in the pleadings, and that sum cannot be increased to attract our jurisdiction by a letter written after judgment and appeal correcting an error made by the draftsman of the petition. The case belongs to the Circuit Court.

We must therefore dismiss the appeal and it is accordingly so ordered.