
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellee, v. Henry W. BUSCH et al., Defendants-Appellants.
    No. 2554.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 16, 1969.
    On Rehearing March 19, 1969.
    Bean & Rush, by Warren D. Rush, Lafayette, for defendants-appellants.
    D. Ross Banister, Glenn S. Darsey, Jesse S.Moore, Jr., Johnie E. Branch, Jr., R. Gray Sexton, Baton Rouge, for plaintiff-appellee.
    Before SAVOY, HOOD and MILLER, JJ-
   MILLER, Judge.

The present cause is an outgrowth of an expropriation suit by the State of Louisiana through the Department of Highways, plaintiff, to obtain 7.372 acres of land from Henry W. Busch and Elizabeth Moresi, defendants, for use in constructing U.S. Highway 167. Plaintiff deposited $24,000.00 in the registry of the Court as its estimated value of the property taken. Defendants answered seeking an increase in the award. The trial court awarded defendants $51,-032.50 as the value of the property less $24,-000.00 previously paid. On January 12, 1966, plaintiffs deposited $32,439.00, representing the excess award of $27,032.50 plus interest, and on January 17, 1966, defendants withdrew this deposit. Plaintiff appealed the trial court’s decision and we reversed, reducing the amount to the $24,-000.00 figure, thus agreeing with plaintiff’s appraisal. (188 So.2d 495, 3rd App.) After a rehearing was denied, defendants applied for writs which the Louisiana Supreme Court refused. (249 La. 736, 190 So.2d 241).

Plaintiff sought to collect the $32,439.00 plus 5% interest from January 17, 1966, the date of withdrawal by defendants. Defendants offered to pay the $32,439.00 but refused to pay interest. Plaintiff filed this suit seeking $32,439.00 plus interest at 5% froih January 17, 1966. Defendants filed an exception of no right or cause of action and res judicata on the ground that our decision in the first suit (188 So.2d 495) made no provision for interest and since plantiff took no action, that judgment is final and no interest is owed. Defendants then filed an answer and in effect acknowledged the obligation to refund the $32,-439.00 but denied owing any interest.

A stipulation of counsel was drawn up and signed by both sides on February 21, 1968, whereby it was agreed that the case would be submitted on the pleadings and in essence that the sole issue for determination was whether defendants owed interest on the $32,439.00 from January 17, 1966, the date of withdrawal from the registry of the court.

On June 14, 1968 defendants filed exceptions of no right or cause of action and res judicata taking the position that they not only did not owe any interest but furthermore they did not owe the principal ($32,439.00). The latter stance was assumed on the grounds that 1) Plaintiff had acquiesced in the original trial court judgment by depositing $32,439.00 into the registry of the court on January 12, 1966, and 2) That our decision (188 So.2d 495) reducing the original trial court award from $51,-032.50 to $24,000.00 should have used language directing a judgment in favor of plaintiff and against defendants for $32,-439.00, the amount of the excess.

The instant suit was tried on the merits on June 14, 1968, and the trial court ruled that plaintiff was entitled to the return of the principal, ($32,439.00) but was not entitled to any interest. From that judgment, defendants appealed to this court.

The trial court ruled that the plaintiff was entitled to the return of the principal ($32,439.00) and we agree. To hold otherwise would clearly defeat the ends of justice and make a mockery of the first suit. Nevertheless, the resourcefulness of defendants’ attack, coupled with the obvious' seriousness of defendants-appellants’ position require answer to the argument.

Defendants argue that when plaintiff deposited the $32,439.00 (excess plus interest) after the original trial court decision, it acquiesced in this judgment. Presumably plaintiff deposited the money to stop the running of interest. The fact is the State did appeal this decision and at no time could it be construed that it acquiesced in the judgment. Indeed, defendants did not come up with this position until the latter stages of the instant suit. (June 14, 1968).

Defendants contend that R.S. 48:456 (2nd paragraph) required this court in our first decision (188 So.2d 495, reducing the award to $24,000.00) to employ language substantially as follows: “Judgment in favor of plaintiff and against defendants for the sum of $32,439.00 etc.”. The language of R.S. 48:456 (paragraph 2) reads as follows:

“If the compensation finally awarded is less than the amount so deposited, the court shall enter judgment in favor of the plaintiff and against the proper parties for the amount of the excess.”

Clearly if we were required to tract the precise language of each statute in our opinions, every litigant would be at the mercy of our own inadvertencies, if, indeed, this be an inadvertence. The adoption of such a rule would open closets long ago closed and frustrate justice in causes yet unborn. However ingenious the argument, we cannot adopt this harsh principle. The intent as well as the language in our first decision is unmistakable: “For the reasons assigned the judgment of the District Court is amended by reducing the judgment awarded defendants from the sum of $52,232.50 to the sum of $24,000.00, and, as amended, is affirmed.” Defendants must return the $32,439.00.

The question of whether defendants owe interest from their withdrawal of the excess on January 17, 1966 appears to be res nova. If we were to adopt the “sauce for the goose, sauce for the gander” approach, urged by plaintiff we would have to allow interest from that date. However, the cooks in the legislative kitchen have, in our judgment, refused to apply an even handed approach to this problem.

The pertinent statutes are R.S. 48:455 and R.S. 48:456, to-wit:

“RS. 48:455 — The judgment rendered therein shall include, as part of the just compensation awarded, interest at the rate of five per centum per annum on the amount finally awarded as of the date title vests in the plaintiff to the date of payment; but interest shall not be allowed on so much thereof as has been deposited in the registry of the court.”
“R£. 48:456 — If the compensation finally awarded exceeds the amount so deposited, the court shall enter judgment against the department and in favor of the persons entitled thereto for the amount of the deficiency.
If the compensation finally awarded is less than the amount so deposited, the court shall enter judgment in favor of the plaintiff and against the proper parties for the amount of the excess.”

Plaintiff says that although only R.S. 48:455 makes direct mention of the interest, when R.S. 48:455 and R.S. 48:456 are read together, it means that the State, as well as the landowner is entitled to interest. We do not believe that R.S. 48:455 and 456 were intended to be read together for this purpose. R.S. 48:455, which covers the question of interest, contemplates interest owed by the State to the landowner, but it does not include the reverse. Had the legislature intended the interest to accrue in favor of the State, it could have worded R.S. 48:455 to include the situation where the amount deposited by the State exceeds the ultimate award. The legislature did not choose to do this. R.S. 48:455 allows interest “on the amount finally awarded as of the date title vests in the plaintiff to the date of payment” (italics ours), which clearly shows interest runs only in favor of the landowner. We cannot supply by interpretation what our lawmakers have failed or refused to do by legislation.

We have decided that defendants do not owe interest from the date of withdrawal on January 17, 1966. The question now arises: Dc defendants owe any interest ?

Civil Code Article 1938 states that “All debts shall bear interest at the rate of five per centum per annum from the time they become due, unless otherwise stipulated.” Applying this principle, it would seem that interest should accrue at 5% from October 12, 1966, the day after writs were refused by the Louisiana Supreme Court which had the effect of affirming the $24,000.00 award (249 La. 736, 190 So. 2d 241). However, the record shows that defendants offered to return the $32,439.00 excess but plaintiff refused the offer, claiming interest from January 17, 1966 in addition to the amount offered.

In the case of Interstate Electric Co. of New Orleans v. Interstate Electric Co. of Shreveport, Inc., 33 So.2d 779, 2nd App.1948, the court held that the offer and refusal of payment obviates the necessity of a formal tender in order to escape liability for interest. We find that by refusing the offer of $32,439.00 plaintiff precluded its collection of any interest.

The judgment of the trial court is affirmed and costs are taxed to defendants-appellants.

Affirmed.

En Banc.

ON REHEARING

PER CURIAM.

As authorized by Section 25 of Article VII of the Louisiana Constitution of 1921, LSA and by LSA-R.S. 13:4449, and in compliance with Rule XII, Section 4, of the Supreme Court, this court does herewith apply to the Honorable, the Supreme Court of Louisiana, for instructions on a question of law arising in the above captioned appeal.

In our opinion filed January 16, 1969, our findings of fact are stated. One fact not immediately apparent in that opinion is that the instant suit was filed May 30, 1967 for the purpose of obtaining judgment which the State contends was awarded to it in the case of State of Louisiana, Through Department of Highways v. Busch, et al. reported at 188 So.2d 495. Writs denied 249 La. 736, 190 So.2d 241.

The State’s application for rehearing in the suit presently .before us, was granted for the reason that we are now unable to agree either that the State is or is not entitled to interest on the award of $32,-439.00. This is the question of law upon which we desire instructions.

While the State conceded in its application for rehearing that it had incorrectly suggested in its first brief that the question was res nova, the State pointed out in its application for rehearing that the issue of interest owed by the landowner to the State is not res nova, citing the cases of State of Louisiana, through Department of Highways v. Lumpkin, 147 So.2d 80 (La.App.2nd Cir., 1962); State of Louisiana, through Department of Highways v. Treat, 163 So.2d 578 (La.App. 2nd Cir., 1964); State of Louisiana, through Department of Highways v. Armstrong, 193 So.2d 538 (La.App. 4th Cir., 1966); State of Louisiana, through Department of Highways v. Sumrall, 167 So.2d 503 (La.App. 1st Cir., 1966), and State of Louisiana, through Department of Highways v. Calvert, 209 So.2d 759 (La.App.2nd Cir., 1968).

We are impressed with the unanimity of these decisions. On the other hand, we are aware that a close reading of these cases reveals that in every instance, it was merely assumed that interest was owed by the landowner and never was the issue itself squarely presented or discussed.

None of these cases involved interpretations of R.S. 48:455 and 456 which form the basis of our opinion handed down January 16, 1969. In the Lumpkin, Sum-rail and Calvert cases interest was awarded to the State without comment or any issue being raised. An interest question arose on rehearing on both the Treat and Armstrong cases but not as to whether it was owed. Both decisions held that the landowner owed the interest. The interest issue raised on rehearing in both Treat and Armstrong was as to the precise manner of calculating interest and the issue was raised by the State. Thus, it appears that in these decisions the landowner did not raise the issue presently before us.

Furthermore, our decree of July 1, 1966 did not provide for interest. After the application for rehearing was denied and writs denied by the Louisiana Supreme Court, it is contended that our decision (188 So.2d 495) became final. In the five cases now cited as authority for awarding interest to the State (Lumpkin, Treat, Armstrong, Sumrall and Calvert), the State received judgment for these awards in the original suit. As noted above, in both Treat and Armstrong, interest was awarded as a result of the State’s application for rehearing in the original suit. It is contended that these cases do not support the proposition that where the State was not awarded interest in the original suit, the State is entitled to file a second suit to obtain interest.

The State contends that LSA-R.S. 48:-455 and 456 should be read with emphasis as follows:

§ 455. Judgment to provide interest
“The judgment rendered therein shall include, as part of the just compensation awarded, interest at the rate of five per centum per annum on the amount finally awarded as of the date title vests in the plaintiff to the date of payment; but interest shall not be allowed on so much thereof as has been deposited in the registry of the court. Added Acts 1954, No. 107, § 1, effective June 24, 1954.
§ 456. Judgment as to difference awarded
“If the compensation finally awarded exceeds the amount so deposited, the court shall enter judgment against the department and in favor of the persons entitled thereto for the amount of the deficiency.
“If the compensation finally awarded is less than the amount so deposited, the court shall enter judgment in favor of the plaintiff and against the proper parties for the amount of the excess. Added Acts 1954, No. 107, § 1, effective June 24, 1954.” (Emphasis added.)

The State further contends that Section 456 treats equally the State and the property owner and provides that just compen-"Nation finally awarded is to be granted in favor of the successful litigant whether or not the amount deposited “exceeds the amount so deposited,” or “is less than the amount so deposited.”

The State further contends that there is not a single word, clause or sentence that provides for payment of interest on the excess award only or to the landowner only and that precludes the payment of interest to the expropriating authority when the compensation finally awarded to the party entitled thereto is less than the award made by the trial court; that when Sections 455 and 456 are read and construed together and in a reasonable manner, the State is entitled to interest.

On the other hand the landowner contends, and we so held in our original opinion, that LSA-R.S. 48:455 does not provide interest where the State has deposited more than the amount finally awarded; that Section 455 plainly provides for interest only where the State deposits more than the amount finally awarded by the court. Particularly in point is that part of the Statute providing for “interest at the rate of five per centum per annum on the amount finally awarded as of the date title vests in the plaintiff to the date of payment; but interest shall not be allowed on so much thereof as has been deposited in the registry of the court.” (Emphasis added.)

Landowner contends that this last quoted provision must refer only to a deposit by the State, since there is no provision whereby landowner is to make any deposit in the registry of the court. Likewise, the provision in 455 that interest accrues “on the amount finally awarded as of the date title vests in the plaintiff to the date of payment * * contemplates only the situation where the final award exceeds the amount deposited by the State. Landowner explains that to hold that landowner would have to pay interest from the date title vested in the State would require a holding in this case that landowner would owe interest from January 12, 1962, the date title vested in the State, when all the State here seeks is interest fromJJanuary 17, 1966, the date landowner received the excess deposited by the State.

Furthermore, landowner argues that there is no suggestion in this provision that interest is to accrue from the date he withdraws the deposit. Instead, as noted above, 455 only provides for interest from date of expropriation to date of payment. While the State concedes that landowner does not owe interest on the amount deposited in the registry of court until he withdrew the deposit, the State cites no provision of law for this concession.

The question upon which we desire instruction is this:

Where the State of Louisiana, through the Department of Highways, on January 12, 1962, expropriated a highway right-of-way under the provisions of LSA-R.S. 48:441 et seq., and made a pretrial deposit of $24,000.00 as just compensation; where the District Court increased the award by judgment dated December 16, 1965 to the sum of $51,032.50; where the State on January 12, 1966 deposited $27,032.50, together with $5,406.50 as interest, making a total deposited of $32,439.00, which was withdrawn by the landowner on January 17, 1966; where the Court of Appeal, after a devolutive appeal taken by the State, reversed the District Court’s decision, reducing the award to $24,000.00, but did not provide for interest; where the Court of Appeal judgment became final; is the State entitled to recovet interest from the landowner in a separate suit, and, if so, from what date? 
      
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