PROVOSTY,
J. The petition -in this case reads as follows:
“To the honorable the judge of the Fifth judicial district of Louisiana holding sessions of court in and for the parish of Jackson: The petition of the Tremont Lumber Company with respect represents: (1) That it is a corporation organized and chartered under the laws of the state of Louisiana, with its domicile at Tremont, in the parish of Lincoln and state of Louisiana, with Samuel J. Carpenter as its president. (2) That it is the owner of a large amount of timber and cut-over lands and other property situated in your said parish of Jackson and state of Louisiana. (3) That on the 2d day of September, 1915, the State Board of Equalization of the state of Louisiana, in legal session in the city of Baton Rouge, which is the domicile of said board and the capital of the state of [393]*393Louisiana, passed a resolution and adopted a report, or supplemental report, fixing the classification of timber lands for the purpose of assessment for the year 1910, and fixing the value of each classification. (4) That prior to the 1st day of April, 1916, and within the time fixed by law for rendering property for assessment, your petitioner returned all of its property, including its timber and timbered lands, to the assessor of your said parish of Jackson, and that said assessment as rendered by your petitioner, inducing the classification of its timber, was duly accepted by said assessor, as is more fully shown by the original assessment sheets in the possession of said assessor, which are made a part of this petition by reference. (5) That the classification of your petitioner’s said timber as given in to said assessor and as accepted by him was a correct classification and the legal assessment, and represented the true amount of the merchantable timber on said land; and, as above alleged, was accepted by said assessor, viz. A. H. May, as a correct rendition of the said property for assessment as shown by said assessment sheets rendered and sworn to in accordance with law. (6) That on or about the 17th day of June, 1916, the police jury of your said parish of Jackson, while sitting in its capacity as a board of reviewers, over the protest and objection of your petitioner, changed the classification of a portion of the merchantable timber on a portion of the lands, and ordered a material change and raise in said classification, which materially increased petitioner’s assessment; and, while the increase in assessment for the year 1916 will not amount to an actual increase in taxes that would have to be paid by your petitioner to the sum of two thousand dollars ($2,000), it is materially in excess of one hundred dollars ($100), and, if the classification is permitted to remain as ordered fixed by said police jury, the increased taxes for the year 1916 and subsequent years will be greatly in excess of the sum of two thousand ($2,000) dollars. (7) That the rendition and classification as made and returned by your petitioner, and the assessment made thereon by said A. H. May, was correct, and that the classification and assessment resulting therefrom, as ordered by the police jury as a board of reviewers, is excessive and illegal, and should be reduced to the classification and assessment as returned by your petitioner. (8) That petitioner appeared before said board of reviewers, and in the manner required by law asked that the assessment as originally made he maintained. These premises considered, your petitioner prays that A. II. May, tax assessor of the parish of Jackson, AY. S. Jones, sheriff and tax collector of said parish of Jackson, and the police jury of said parish of Jackson, through its president, AY. T. Hawthorn, be served with a copy of this petition, and cited to answer same in accordance with law, and on final trial had that the increase •in classification ordered made by said police jury be annulled, and your petitioner’s assessment reduced, both in classification and amount, as rendered and accepted by said assessor, and that said sheriff and tax collector be enjoined and restrained from collecting or attempting to collect any taxes in excess of the classification and amounts as rendered by your petitioner for assessment. Petitioner prays for all other needful orders and decrees in the premises and for general relief.”
It will be noted that the object of this suit is to have the court pass upon the correctness of the classification of certain lands, and yet that these lands are not described otherwise than by the statement that they are timber and cut-over lands, and belong to the petitioner, and are situated in the parish of Jackson, and that they and their classification “is more fully shown by the original assessment sheets' in the possession of the assessor, which are made part of this petition by reference.” The classification made by the board of reviewers is not alleged even “by reference.”
[1] An exception of no cause of action was filed, and overruled, and plaintiff was allowed to amend. The exception should have been sustained. In our system of pleading, form is not sacramental; so that a petition may be composed in part of documents annexed to it and alleged to be made part of it. Recitals contained in documents incorporated into a petition in that manner are considered as made in the petition. But this is and can be true only when the documents are actually made part of, or incorporated into, the petition. And they are evidently not thus incorporated when they are merely referred to; or, as the petition in this case expresses it, are merely “made part by reference.” Their contents are not then communicated to the court and to the pleader’s adversary. Nothing is then stated upon which the court can act; for, evidently, a court can act only upon what is in the record, not upon something that can be discovered or ascertained only by going to consult some papers said to be in some assessor’s or other office. [395]*395In this case, for pronouncing judgment in favor of plaintiff on the face of the petition the court would have to decree the classification submitted by plaintiff to the assessor to have been right without knowing what lands were in question and what the classification was, and to decree the classification made by the board of reviewers to have been wrong without knowing what it was.
Far from sanctioning or tolerating such looseness as this, our Pleadings Act (Act 300, p. 611, of 1914) is, on the contrary, very specific that—
“the plaintiff in his petition * * * shall, so far as practicable, state each of the material facts upon which he bases his claim for relief in a separate paragraph;”
and that the defendant shall—
“either admit or deny specifically each material allegation or fact contained in plaintiff’s petition.”
[2] The amendment should not have been allowed. A petition upon which no judgment can be pronounced does not show a cause of action; and a petition which does not show a cause of action is, legally speaking, no petition, and hence cannot be amended. For definition of a petition, see American Sugar Refinery Case, 138 La. 1014, 71 South. 137. In Abadie v. Berges, 41 La. Ann. 283, 6 South. 529, this court said: “The court is powerless to authorize an amendment which would insert a cause of action when none was previously averred.” In State v. Hackley, Hume and Joyce, 124 La. 854, 50 South. 772, the court said: “Unless a cause of action is alleged there is no suit, and hence nothing to amend.” See these cases quoted with approval in Godchaux v. Hyde, 126 La.
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PROVOSTY,
J. The petition -in this case reads as follows:
“To the honorable the judge of the Fifth judicial district of Louisiana holding sessions of court in and for the parish of Jackson: The petition of the Tremont Lumber Company with respect represents: (1) That it is a corporation organized and chartered under the laws of the state of Louisiana, with its domicile at Tremont, in the parish of Lincoln and state of Louisiana, with Samuel J. Carpenter as its president. (2) That it is the owner of a large amount of timber and cut-over lands and other property situated in your said parish of Jackson and state of Louisiana. (3) That on the 2d day of September, 1915, the State Board of Equalization of the state of Louisiana, in legal session in the city of Baton Rouge, which is the domicile of said board and the capital of the state of [393]*393Louisiana, passed a resolution and adopted a report, or supplemental report, fixing the classification of timber lands for the purpose of assessment for the year 1910, and fixing the value of each classification. (4) That prior to the 1st day of April, 1916, and within the time fixed by law for rendering property for assessment, your petitioner returned all of its property, including its timber and timbered lands, to the assessor of your said parish of Jackson, and that said assessment as rendered by your petitioner, inducing the classification of its timber, was duly accepted by said assessor, as is more fully shown by the original assessment sheets in the possession of said assessor, which are made a part of this petition by reference. (5) That the classification of your petitioner’s said timber as given in to said assessor and as accepted by him was a correct classification and the legal assessment, and represented the true amount of the merchantable timber on said land; and, as above alleged, was accepted by said assessor, viz. A. H. May, as a correct rendition of the said property for assessment as shown by said assessment sheets rendered and sworn to in accordance with law. (6) That on or about the 17th day of June, 1916, the police jury of your said parish of Jackson, while sitting in its capacity as a board of reviewers, over the protest and objection of your petitioner, changed the classification of a portion of the merchantable timber on a portion of the lands, and ordered a material change and raise in said classification, which materially increased petitioner’s assessment; and, while the increase in assessment for the year 1916 will not amount to an actual increase in taxes that would have to be paid by your petitioner to the sum of two thousand dollars ($2,000), it is materially in excess of one hundred dollars ($100), and, if the classification is permitted to remain as ordered fixed by said police jury, the increased taxes for the year 1916 and subsequent years will be greatly in excess of the sum of two thousand ($2,000) dollars. (7) That the rendition and classification as made and returned by your petitioner, and the assessment made thereon by said A. H. May, was correct, and that the classification and assessment resulting therefrom, as ordered by the police jury as a board of reviewers, is excessive and illegal, and should be reduced to the classification and assessment as returned by your petitioner. (8) That petitioner appeared before said board of reviewers, and in the manner required by law asked that the assessment as originally made he maintained. These premises considered, your petitioner prays that A. II. May, tax assessor of the parish of Jackson, AY. S. Jones, sheriff and tax collector of said parish of Jackson, and the police jury of said parish of Jackson, through its president, AY. T. Hawthorn, be served with a copy of this petition, and cited to answer same in accordance with law, and on final trial had that the increase •in classification ordered made by said police jury be annulled, and your petitioner’s assessment reduced, both in classification and amount, as rendered and accepted by said assessor, and that said sheriff and tax collector be enjoined and restrained from collecting or attempting to collect any taxes in excess of the classification and amounts as rendered by your petitioner for assessment. Petitioner prays for all other needful orders and decrees in the premises and for general relief.”
It will be noted that the object of this suit is to have the court pass upon the correctness of the classification of certain lands, and yet that these lands are not described otherwise than by the statement that they are timber and cut-over lands, and belong to the petitioner, and are situated in the parish of Jackson, and that they and their classification “is more fully shown by the original assessment sheets' in the possession of the assessor, which are made part of this petition by reference.” The classification made by the board of reviewers is not alleged even “by reference.”
[1] An exception of no cause of action was filed, and overruled, and plaintiff was allowed to amend. The exception should have been sustained. In our system of pleading, form is not sacramental; so that a petition may be composed in part of documents annexed to it and alleged to be made part of it. Recitals contained in documents incorporated into a petition in that manner are considered as made in the petition. But this is and can be true only when the documents are actually made part of, or incorporated into, the petition. And they are evidently not thus incorporated when they are merely referred to; or, as the petition in this case expresses it, are merely “made part by reference.” Their contents are not then communicated to the court and to the pleader’s adversary. Nothing is then stated upon which the court can act; for, evidently, a court can act only upon what is in the record, not upon something that can be discovered or ascertained only by going to consult some papers said to be in some assessor’s or other office. [395]*395In this case, for pronouncing judgment in favor of plaintiff on the face of the petition the court would have to decree the classification submitted by plaintiff to the assessor to have been right without knowing what lands were in question and what the classification was, and to decree the classification made by the board of reviewers to have been wrong without knowing what it was.
Far from sanctioning or tolerating such looseness as this, our Pleadings Act (Act 300, p. 611, of 1914) is, on the contrary, very specific that—
“the plaintiff in his petition * * * shall, so far as practicable, state each of the material facts upon which he bases his claim for relief in a separate paragraph;”
and that the defendant shall—
“either admit or deny specifically each material allegation or fact contained in plaintiff’s petition.”
[2] The amendment should not have been allowed. A petition upon which no judgment can be pronounced does not show a cause of action; and a petition which does not show a cause of action is, legally speaking, no petition, and hence cannot be amended. For definition of a petition, see American Sugar Refinery Case, 138 La. 1014, 71 South. 137. In Abadie v. Berges, 41 La. Ann. 283, 6 South. 529, this court said: “The court is powerless to authorize an amendment which would insert a cause of action when none was previously averred.” In State v. Hackley, Hume and Joyce, 124 La. 854, 50 South. 772, the court said: “Unless a cause of action is alleged there is no suit, and hence nothing to amend.” See these cases quoted with approval in Godchaux v. Hyde, 126 La. 187, 52 South. 269.
[3] Where a cause of action is stated for the first time in a supplemental or amended petition, the filing of the supplemental petition must be considered to be the beginning of the suit; the suit must be considered as dating only from such filing, and not from the filing of the original petition; and the supplemental petition must be served upon the defendant, and the delays for answering must be allowed as in the case of an original petition. Hart & Co. v. Bowie, 34 La. Ann. 323; Raymond v. Palmer, 35 La. Ann. 281; Ursuline Nuns v. Depassau, 7 Mart. N. S. 645; 1 C. J. 1159. In the instant case the supplemental, or amended, petition was not served on defendants; defendants were never cited to answer it; they duly excepted on that ground to being required to answer it.
[4] But the serving of it would have been of no avail, as the date of its filing was the 6th of November, five days after the expiration of the delay allowed by law for the filing of suits of that character. “The action to test such correctness [the correctness of an assessment] shall be instituted on or before the first day of November of the year in which the assessment is made.” Section 26 of Act 170, p. 346, of 1898. The defendants duly excepted on that ground also.
Plaintiff’s suit was not at first accompanied by an injunction, but before it could be tried the property was advertised to be sold to satisfy the taxes assessed against it on the classification made by the board of reviewers, and an injunction was then sued out.
Defendants moved to dissolve it on the ground that in obtaining it the several requirements prescribed by the Revenue Law (Act 170, p. 346, of 1898, § 56) were not observed, to wit:
“No injunction restraining the collection of any tax or taxes shall be issued by any court unless a bond shall first be given, by the taxpayer enjoining, with good security for an amount equal to that of all taxes, interests, penalties and costs of the amount of taxes contested, and fifty per cent, additional thereon included, and no injunction shall issue except to enjoin the collection of that portion of the tax which may be in contest, and no injunction shall issue against the collection of that part or por-, tion in contest until the taxpayer shall have produced and filed the tax> collector’s receipt showing that the taxpayer has paid that portion of the tax * * * not in contest, and [397]*397■which the taxpayer acknowledges to he due. No injunction against the collection of taxes or any part or portion thereof shall issue except after the issuance of a rule nisi, to be served on the tax collector, returnable in three days. Said rule shall be tried on the fourth day after service, summarily and by preference, and the injunction shall only issue after judgment making the rule absolute and then only for such portion or part of the tax in contestation as hereinbefore provided.”
[5-8] The amount of the taxes enjoined exceeded largely the amount of the bond given by plaintiff. Plaintiff would seek to escape the consequence of this discrepancy by invoking the principle that an injunction will not be dissolved where there is ground for injunction, and the sole effect of the dissolution would be to subject the litigant to the trouble or expense of suing out another injunction; and by invoking Act 112 of 1916, by which a litigant is allowed to furnish a new bond when the one furnished ‘‘is insufficient in amount or incorrect by reason of errors or omissions.”
The rule is that where, in a tax contesting ease like this, the bond is insufficient in amount, the injunction must be dissolved. Paepcke Leight Lbr. Co. v. Clack, Tax Col., 137 La. 307, 68 South. 739; Howcott v. Smart, 125 La. 50, 51 South. 64. Moreover, the injunction being merely ancillary to the suit to contest the assessment, there can be no ground for injunction when the suit to contest has not been filed in time; and the suit in this case was not filed in time. Again, there can be no ground for injunction until the uncontested part of the taxes has been paid, and the tax collector’s receipt for it produced; and while plaintiff alleged in the supplemental petition that payment of this uncontested part had been tendered and refused, plaintiff made no effort to prove that fact on the trial, although it was specifically denied in the answer of defendants. Defendants’ counsel says that the only tender made was on the condition that a receipt in full should be given; and we are inclined to believe it, for why, else, refuse to accept the money. We need hardly add that a tender so conditioned would have been nothing more than a mere pretense at a tender, and futile.
[9] The insufficiency of the bond in this case is not shown to have been the result of error or omission; hence said Act 112 of 1916 can have no application.
[10] Another clear ground why the injunction was properly dissolved is that its issuance was not preceded by a rule nisi. How the law on this point could be more stringently worded than by the above transcribed statute we cannot imagine. Plaintiff would seek to escape by saying that the motion to dissolve on that ground was filed too late, it having been filed after issue had been joined on the merits. No reason is given why this peremptory ground of dissolution, almost if not quite of the nature of a law of public order, should be considered to have been waived by its not having been urged in the answer ; and we can conceive of none.
In cases of this kind, contesting taxes, section 56 of the Revenue Law requires that the contesting party, if defeated in the suit, must be condemned to pay, as attorney’s fees, 10 per cent, .on the aggregate amount of the taxes and penalties involved in the suit. Upon the contested part of the taxes and penalties plaintiff is clearly liable to this penalty. Whether plaintiff is liable to it upon the uneontested part depends upon whether a tender of this uncontested part was made unconditionally, or only, as stated by counsel for defendants, on the condition that a receipt in full should be given, or on any other condition. The record leaves the court in doubt on that point, and a penalty should not be imposed in doubt. Therefore for determining whether this 10 per cent, penalty should be imposed upon the basis of the entire amount of the taxes and penalties due by plaintiff or only of the uncontested part, we shall remand the case for further trial.
[399]*399The judgment appealed from is therefore affirmed, except in the matter of the attorney’s fees, as to which it is remanded for further trial, with instructions that judgment be rendered against the plaintiff in favor of the defendants for 10 per cent, as attorney’s fees, upon the basis of the contested part of the taxes and penalties herein, and, in the event the tender made by plaintiff to the tax collector was on the condition that a receipt in full should be given, or was made otherwise than unconditionally, then that judgment be also rendered for such attorney’s fees upon the basis of the uncontested part of said taxes and penalties, and that the plaintiff pay all the costs of this suit.
O’NIELL, .L, dissents from the ruling that the plaintiff’s petition did not set forth a cause of action.