Southworth v. City of New Orleans

24 La. Ann. 312

• Court: Supreme Court of Louisiana
• Decided: May 15, 1872
• Docket: No. 3305
• Status: Published

Opinions

This case was tried by a jury in the court below.

Ludbling, C. J.

This is a suit to recover the value of services-rendered in recording the abstracts of inventories of the property of minors, whose tutors had not been required by law to give bond.

This claim is resisted on the following grounds:

First — “ By the act of 1869, the expense of recording ‘ the abstracts ’■ provided for in that statute, was made chargeable to the minor, tutor, or other responsible person, and to the property of the minor ; while,, by the act of 1870, the fees for such services were required to be paid-by the respective parishes in which such services were performed,, thereby subjecting the parishes to the liability of discharging the debts of a third party, contracted under the act of 1869, and as a consequence, compelling the tax-payers of the parishes, through au assessment on their property, to pay a debt, which by the law in force at the time it was contracted, rested upon private individuals.” This, it is contended, is unconstitutional, because it impairs the obligation of a contract. What contract 9 What obligation is impaired ? Surely there never was any contract between the minors (for whose benefit-the Legislature directed the abstracts to be recorded) and the recorders and clerks. The act of 1870 directed that the parishes should advance to the clerks and recorders the fees for doing the work imposed on them by law, and look to the property of the minors for reimbursement. We can see nothing in this which impairs the obligation of a contract. It is argued that the Legislature can not make parishes pay the expenses of making and registering these abstracts, because it would be making the parishes pay the debts of individuals. Yfe do not consider the expenses aforesaid properly debts of individuals — they are charges imposed by law without the consent of the parties — and the General Assembly may require that such charges shall be defrayed by the parishes. All the officers of the State and parishes, whose compensations are not fixed by the Constitution, might be paid by salaries fixed by the General Assembly; and thus citizens, who had no litigation in the courts, would be made to contribute to pay the debts of other citizens who had, if they be debts. There is no force in the position.

Second — The next objection is that the city of New Orleans is not embraced by the act of 1870, which says the parishes shall pay. The city of New Orleans is the parish of Orleans. Acts of 1870, page 30, section 2.

Third — The defendant urges that the act of 1870 provides that the recorder shall charge the same fees as “for other similar services,” and that for the registry of ordinary mortgages, SI 50 for each is allowed.

If the charge were made thus, the relator contends that his fees would be increased ten fold, as there were many mortgages included in many of the abstracts. This is an error. The law created a mortgage on the property of the tutor in favor of the minors, etc., and the law which required the registry of an abstract of the inventories only provided a mode to preserve the mortgage, and only one mortgage is thus recbrded by registering the abstract of the inventory in each tutorship, etc. The law does not require the recorder of mortgages to give a certificate in the matter, and he cannot charge for it. We are of opinion that by the terms “ similar services,” the Legislature intended that they should charge the State as for recording mortgages.

There is manifest error in the verdict and judgment in favor of the defendant. The judge a quo admits this in refusing to grant a new trial, but he remarks that “ the refusal of the motion will facilitate the final decision at once.”

This court has often said that it is the duty of courts to grant new trials when justice requires it. 4 M. 512 ; 3 N. 101; 4 N. 8.132; 2 La. 306; 15 La. 226; 1 R. 192; 7 R. 56; 10 R. 57; 2 An. 625; 6 An. 753. And a new trial is the proper remedy for an improper verdict. 4 M. 83. Won constat, that an appeal would have been taken if the judgmeat had been such as the judge a quo would have approved iu this case. A new trial should have been granted in this case.

The evidence shows that 2577 "abstracts” were recorded by the recorder of mortgages; and we think under the law lie is entitled to charge $1 50 for each one.

It is therefore ordered and adjudged that the verdict and judgment iu this case be set aside, and that there be judgment in favor of the plaintiff against the defendant for three thousand eight hundred and sixty-five dollars and fifty cents, with legal interest from the first of April, 1870, till paid, and costs of suit.