Newcomb v. Police Jury of East Baton Rouge

4 Rob. 233

• Court: Supreme Court of Louisiana
• Decided: April 15, 1843
• Status: Published

Opinion

Bullard, J.

This is an action against the Parish of East Baton Rouge, to recover the sum for which the plaintiff had constructed a certain levee over land of non-residents, under a contract with the Inspector of Roads and Levees. He alleges that he became the lowest bidder at a public adjudication of the job ; that the contract had been duly recorded, but that the Inspector having failed to give proper and legal notices to the absent proprietor, he had been debarred from exercising his summary recourse against the land in the manner pointed out by law; and that, by reason of the premises the Parish became liable to pay him the stipulated price. The Police Jury are appellants from a judgment sustaining his pretensions.

It is shown, that.the inspector failed to give the notices to the absent proprietors, required by law. Without such notice, and a strict compliance with all the legal requisites, it is clear the undertaker is not entitled to have the land, improved by his labor, seized and sold to pay him the price of adjudication. See Bullard & Curry’s Digest, page 753. 1 La. 103.

It is true the plaintiff has made no attempt to have the land seized summarily, and that the proprietor is liable in an ordinary action upon a quantummeruit, to pay such an amount as he has been benefitted by the work done. We are, however, of opinion that the plaintiff was not bound to do so vain a thing, as to apply for an order of seizure which the judge could not legally grant. It is clearly not the fault of the undertaker that the Inspector did not give the notices required by law, and he was not bound to institute an ordinary action against the proprietor, the Police Jury having engaged that he should be paid the price at which the work was adjudicated to him. 12 La. 24.

Judgment affirmed.