Stewart v. Martin

84 So. 2d 235, 1955 La. App. LEXIS 1052
CourtLouisiana Court of Appeal
DecidedNovember 22, 1955
DocketNo. 4091
StatusPublished
Cited by1 cases

This text of 84 So. 2d 235 (Stewart v. Martin) 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
Stewart v. Martin, 84 So. 2d 235, 1955 La. App. LEXIS 1052 (La. Ct. App. 1955).

Opinions

ELLIS, Justice.

The plaintiffs instituted this suit to obtain a court review of the order on and after hearing issued by defendant in his capacity as Insurance Commissioner, allowing a mutual insurance company in which plaintiffs own an interest, to convert to a stock insurer. The- review sought is provided for by LSA-R.S. 22:1360 which reads as follows:

“A. Any person aggrieved on account of any official action or threatened action of the Secretary of State, or of his failure to act if such failure is deemed to constitute an act under any provision of this Code, may demand a hearing thereon as provided in R.S. 22:1351, and may have the court review any order of the Secretary of State made pursuant thereto. The petition for such review shall be filed only in the district court in and for the parish of East Baton Rouge and shall be taken only from an order refusing a hearing or an order on hearing. Such action may be taken by any person aggrieved by such order refusing a hearing or by such order on hearing.
“B. The action must be taken within thirty days after the order complained of was given by the Secretary of State, or if the order was published as provided in R.S. 22:1359, within thirty days after the date of the last such publication. If not so .taken, the right to have a court review or restrain action under the order shall conclusively be deemed to have been waived.”

The order complained of was entered on October 29, 1952, the company’s plan of conversion was submitted and the Insurance Commissioner’s certificate of authority to convert was issued on October 30, 1952, and plaintiffs filed the in.stant suit on November 6, 1952.- Plaintiffs, prayed for a Court review of the order, and also prayed to have the order set aside on the grounds that the conversion plan was not approved [237]*237by the necessary two-thirds* of the policy holders and decree the proposed plan of conversion of the Victory Industrial Life Insurance Company, which was the sublet of the original hearing, null and void and without any effect. In addition plaintiffs prayed that the defendant be ordered to ■show cause why the court should not stay any action taken or proposed to be taken under the order complained of. Such a stay is provided for by LSA-R.S. 22:1364 which reads in part as follows:

“A. The filing of such a petition shall not stay any action taken or proposed to be taken by the Secretary of State under the order complained of unless a stay is granted by the court at a hearing held as part of the proceedings.”

The trial court, which has discretionary powers in this respect, refused to stay the order complained of on the grounds that the Victory Industrial Life Insurance Company had immediately converted to a stock insurer upon receipt of the order, and “less ■damage, confusion or injury would be caused by refusing to stay the order than-would result if the order were stayed and the company would be ‘neither fish nor fowl’

An exception of no cause of action and •of non-joinder urged by the defendant was overruled by the trial judge.

On October 21, 1954, counsel for defendant filed a motion to dismiss which was sustained by the trial court on the grounds that the plaintiffs sought to have the order allowing conversion set aside, that as relief sought by the plaintiffs would not result in a reconversion of Victory Industrial Life Insurance Company from a stock company to a mutual company the case was moot. The Court cited State v. Dolley, 82 Kan. 533, 108 P. 846, 847; quoting Adams v. Union Railroad Co., 21 R.I. 134, 140, 42 A. 515, 517, 44 L.R.A. 273, to the effect that case is moot when judgment is sought ‘ * * * upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy.’ ”

The plaintiffs quote the following excerpts to refute the contention that a moot question is presented by the facts in the instant case:

“Where the application for review of a decision of an administrative body shows that the question presented is abstract or moot, the court ordinarily will refsue to review the decision * * * (but) * * *. The mere fact that an order has been carried out does not deprive one objecting to it of the right of review.” 73 C.J.S., Public Administrative Bodies and Procedure, § 190, p. 538.
“Intervening events do not render a controversy moot where it is still possible for the reviewing court, if it should decide the case in favor of the party seeking relief, to grant him some effectual relief.” 42 Am.Juris, 193, p. 570.

The defendant herein relies further upon the case of Pettingill v. Hills, Inc., 199 La. 557, 6 So.2d 660, which involves a suit for partition among co-owners, one of whom took a devolutive appeal, since he was dissatisfied with the judgment ordering partition. Meanwhile, the shares of the partition were distributed to and receipted for by all co-owners wih the exception of the appel-lee. It is evident from the quotation from the case which was included in the Insurance Commissioner’s brief that the court specifically restricted its denial of appellate relief to cases “ * * * where it is impossible for the appellate court to undo what has already been done.” This case is not in point for in the case at bar the courts may set aside the order which is before them on review under the specific language of the pertinent statute. In this connection see also Fluker Farms v. James, La.App., 71 So.2d 709; Id., 226 La. 303, 76 So.2d 311.

The defendant also cited State ex rel. Betpouey, Jr. & Co. v. Jefferson Parish Waterworks District, 223 La. 566, 66 So.2d 338, in support of the trial court’s judgment. In that case the plaintiff had sought a [238]*238mandamus compelling the Waterworks District to accept its bid on a contract and annulling a contract awarded to another contractor. While a devolutive appeal was pending, the contract plaintiff was seeking to annul was fully performed and the work was accepted by the Waterworks District. The Court properly held that it was powerless to order that the completed contruction work be undone. This case is inapposite to the case at bar since the Court is not being asked to annul a completed contract but to review a decision of an administrative officer which is granted as of right by the pertinent statutes.

The defendants cite the case of Freret Civic Ass’n v. Orleans Parish School Board, 223 La. 407, 65 So.2d 893, 894 in support of the proposition that the court in the instant case is powerless to grant the relief sought. The plaintiff in that case sought a preliminary injunction to prevent the Orleans Parish School Board from converting a certain school from white to Negro usage. The preliminary injunction was denied by the trial court and the conversion was actually effected while an appeal was pending.

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144 So. 2d 300 (Louisiana Court of Appeal, 1962)

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Bluebook (online)
84 So. 2d 235, 1955 La. App. LEXIS 1052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-martin-lactapp-1955.