Hodges v. Ory

48 La. Ann. 54

• Court: Supreme Court of Louisiana
• Decided: November 18, 1895
• Docket: No. 11,860
• Status: Published

Opinions

On Motion to Dismiss.

The opinion of the court was delivered by

Breaux, J.

The plaintiffs sued for an immovable worth ten thou - sand dollars, or in default thereof for its value.

They allege substantially that in February, 1892, one of the defendants undertook and agreed to clear and perfect their title to their property fora contingent fee equal to 88 1-8 per cent, of the value of the property.

That in violation of his contract this defendant acquired the property in his own name from the State of Louisiana.

That subsequently the property was conveyed to Oole and by Oole to Dowers.

They pray for judgment decreeing that these conveyances are without effect, and commanding Dowers to convey the property to them, or, in the alternative, for a personal judgment against Benjamin Ory (with whom they contracted^ for the value of the property, viz.: ten thousand dollars.

The defendant in his answer admits that he entered into a contract with plaintiffs to recover the property in question for their account, -and to that end to bring needful suits to have several sales revoked and canceled.

His narrative of facts shows that in order to protect his rights and those of his clients when he purchased the property from the State ,he had the title made to James D. Oole after having himself paid the price.

That subseqently, at his instance, it was transferred to David J. .Dowers, from whom he required a counter letter.

In the name of the latter a suit was brought to recover possession •of the property.

Lastly, the property was sold by Dowers to Lavedan, who also •signed a counter letter.

Respondent alleges that the conveyances were for account of the plaintiffs; that this suit was brought against him without any demand on the part of the plaintiffs or any inquiry regarding their title.

That , plaintiffs have notified him that they considered their contract revoked and canceled, and that he is in consequence relieved from any further responsibility.

He, moreover, alleges that he has faithfully complied with his -contract, and that under the contract he has expended the following amounts:

First — The sum of two hundred and seventy-five dollars, price paid to the State.

Second — To W. J. Delano, who held same rights as adjudicatee at •one time of the property, one hundred and fifty dollars.

Third — The city taxes of 1891, forty-three dollars and five cents.

Fourth — State taxes of 1898, twenty-three dollars and thirty-five •cents.

Fifth — Costs of court, six dollars and sixty cents.

Sixth — Sheriff’s costs, six dollars; to which he is entitled as well as to a judgment for fees on a quantum meruit for professional services.

Oole and Dowers have answered plaintiff’s petition and disclaim that they have any interest in the property.

The judge of the District Oourt pronounced judgment for the plaintiffs on the principal demand, and decreed that the different purchases, before stated by us, were made for the account of the plaintiffs, and that they are the owners of the property.

On defendant’s reconventional demand, he pronounced judgment in his favor against plaintiffs for the sum of fifteen hundred and four dollars and five cents, with interest from date of judgment, with a privilege on the property to secure the amount.

Prom this judgment the plaintiffs appeal.

In this' court, as grounds to dismiss this appeal, the appellee alleges:

That the judgment on the principal demand was rendered on the admissions and confessions of judgments of the defendants and appellees, and that the judgment rendered in favor of defendants and appellees on the reconventional demand is only for fifteen hundred dollars.

That plaintiffs and appellants have acquiesced in the judgment in their favor by claiming the benefits derived from the suit and the judgment in their favor.

That there is no controversy between the plaintiffs and the defendants.

We think that an appeal should never be denied, unless it is manifest that the judgment is not one from which an appeal lies.

The provisions of the law regarding confessions of judgment or acquiescence are, that the party against whom judgment has been rendered can not appeal, if he has acquiesced in the judgment. C. P. 567.

We do not understand that plaintiffs and appellants have acquiesced in the judgment. The defendants have made admissions. It nowhere appears that they were accepted by plaintiffs; in other words, that a confession by defendants was entered, with the consent of plaintiffs. The suit was contested from the first, and while it may be true that, prior to judgment, plaintiff claimed certain benefits, obtained by services on the part of the defendant Ory, these are not tantamount to acquiescence, preventing plaintiffs from prosecuting their appeal-..

The motion to dismiss is denied.