State v. Jackson Brewing Company

146 So. 2d 504
CourtLouisiana Court of Appeal
DecidedOctober 1, 1962
Docket544
StatusPublished
Cited by15 cases

This text of 146 So. 2d 504 (State v. Jackson Brewing Company) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Jackson Brewing Company, 146 So. 2d 504 (La. Ct. App. 1962).

Opinion

146 So.2d 504 (1962)

STATE of Louisiana, through the DEPARTMENT OF HIGHWAYS, Plaintiff and Appellant,
v.
JACKSON BREWING COMPANY, Defendant and Appellee.

No. 544.

Court of Appeal of Louisiana, Fourth Circuit.

October 1, 1962.
Rehearing Denied November 26, 1962.
Certiorari Denied January 14, 1963.

*505 D. Ross Banister, Glenn S. Darsey and Braxton B. Croom, Baton Rouge, for plaintiff-appellant.

Milling, Saal, Saunders, Benson & Woodward, G. Henry Pierson, Jr., and Irving R. Saal, New Orleans, for defendant-appellee.

Before CULPEPPER, PONDER and McGEE, JJ.

W. A. CULPEPPER, Judge ad hoc.

This is an expropriation suit instituted by plaintiff in accordance with the authority conferred by Article VI, Section 19.1, of the Constitution of Louisiana, LSA and the provisions of LSA-R.S. 48:441-48:460, allowing expropriation for highway purposes by a declaration of taking. The property taken consists of an irregular shaped lot of ground together with a large electrically illuminated advertising sign thereon. The entire tract of land was taken. At the time the suit was filed, plaintiff deposited in the Registry of the court the sum of $30,205 as compensation for the property. Defendant first filed, within ten days after notice, a motion to dismiss the suit on the grounds that the property was not expropriated for a public use. LSA-R.S. 48:447. Following denial of said motion to dismiss, defendant filed an answer applying for a trial to determine the market value of the property expropriated. LSA-R.S. 48:450. This answer was filed within 30 days after the lower court's judgment denying defendant's motion to dismiss, but was not filed until almost 16 months after defendant received notice of the judgment of expropriation. Plaintiff then filed a "Petition for Final Judgment" on the grounds that said answer was not timely filed within 30 days as required by LSA-R.S. 48.450. The lower court denied plaintiff's petition for final judgment and, after a trial on the merits, increased the award to $75,000. From this judgment plaintiff has appealed. Defendant has not answered the appeal.

The first issue is whether the answer was timely filed so as to permit a trial to determine the market value of the property expropriated. The sequence of relevant events was as follows: on April 23, 1958 the petition for expropriation was filed and the sum of $30,205 deposited in the registry of the court; on April 24, 1958 copies of the proceedings, including a notice of the judgment of expropriation, were served on the defendant; on May 2, 1958 defendant filed said motion to dismiss on the grounds that the property was not expropriated for a public use; on February 16, 1959 the motion to dismiss was tried in the lower court; on July 15, 1959 the lower court rendered judgment denying defendant's motion to dismiss; on August 10, 1959 defendant filed an answer alleging that the property expropriated was worth $150,000 and applying for a trial to determine the market value thereof; on September 30, 1959 plaintiff filed its petition for final judgment which the court denied; on March 14 and 15 of 1960 the trial on the merits occurred; on May 9, 1961 judgment was rendered in the lower court increasing the award to $75,000. Applicable here are the following statutory provisions:

"LSA-R.S. 48:446. Notice to defendant. Upon receipt of the deposit, the clerk of court shall issue a notice to each defendant in the suit, notifying *506 him that the property described in the petition has been expropriated for highway purposes.
"This notice, together with a certified copy of the order, the petition and the clerk's receipt for the deposit, shall be delivered by the clerk to the proper sheriff for service on each defendant in the manner provided for the service of citations. Added Acts 1954, No. 107, § 1."
"LSA-R.S. 48:447. Contesting validity of taking; waiver of defenses. Any defendant desiring to contest the validity of the taking on the ground that the property was not expropriated for a public use may file a motion to dismiss the suit within ten days from the date the notice was served on him. He shall certify thereon that a copy thereof has been served personally or by mail on either the plaintiff or his attorney of record in the suit. This motion shall be tried contradictorily with the plaintiff.
"Failure to file the motion within the time provided or to serve a copy thereof on the plaintiff constitutes a waiver of all defenses to the suit except claims for compensation. Added Acts 1954, No. 107, § 1."
"LSA-R.S. 48:450. Determining value where entire tract expropriated. Where an entire lot, block or tract of land is expropriated, any defendant may apply for a trial to determine the market value of the property expropriated, provided:
"(1) He files an answer within thirty days from the date he is served with the notice;
"(2) His answer sets forth the amount he claims;
"(3) His answer has a certificate thereon showing that a copy thereof has been served personally or by mail on all parties to the suit who have not joined in the answer.
"Upon the filing of the answer, the court shall issue an order fixing the time of the trial of the suit. The clerk of court shall thereupon issue a notice to all parties who did not join in the answer of the time fixed for the trial. This notice shall be served at least twenty days before the time fixed for the trial and in the manner provided by law for the service of citations. Added Acts 1954, No. 107, § 1."
"LSA-R.S. 48:452. Laches by defendant forfeits defenses. Failure of a defendant to file his answer timely or to serve copies thereof timely constitutes a waiver of all his defenses to the suit. Added Acts 1954, No. 107, § 1."

As stated above, defendant timely filed within ten days a motion to dismiss under the provisions of LSA-R.S. 48:447 and filed its answer within thirty days after the denial of said motion to dismiss, but the date of filing said answer was almost sixteen months from the date defendant was served with a notice of the expropriation. In defending this procedure, defendant contends that "The thirty day provision of LSA-R.S. 48.450, upon which plaintiff relies, must be read in conjunction with LSA-R.S. 48:447, which specifically grants a property owner the right to file a motion to dismiss the expropriation on the ground that the property was not expropriated for public use. When this is done, it becomes plain that LSA-R.S. 48:450 is intended to apply only in cases where no motion to dismiss has previously been filed and adjudicated." Defendant argues that under these statutory provisions the property owner has a right to be heard on two grounds, first the lack of public purpose, and second, the lack of adequate compensation; that a property owner cannot be compelled to choose between these contradictory and inconsistent positions; that a property owner should not be compelled to go to the expense of preparing his *507 case on market value until after his motion to dismiss has been disposed of; that such expenses would be totally unnecessary and not recoverable should the lack of public purpose be proved.

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Bluebook (online)
146 So. 2d 504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jackson-brewing-company-lactapp-1962.