
    No. 4350.
    The New Orleans Canal and Banking Company et al. v. The City of New Orleans.
    The motion to dismiss the appeal made by each, of the two plaintiffs, on the ground that all the plaintiffs wore not made parties to the appeal, can not provail. There is but one judgment in the case, for which an appeal was granted in open court within ten days-after the rendition of the judgment and at the same term of court. Ko citation was necessary and both plaintiffs were made parlies to said appeal, taken by motion. The fact that afterward a petition for an appeal was tiled did not affect what was previously done.
    Act Ko. 30 of the acts of 1871, entitled “An Act for the drainage of 2Tew Orleans” does not repeal the act of 1858, which provides for leveeing, draining and reclaiming swamps in certain portions of the parishes of Orleans and Jefferson. It only changes, in some-degree, the mode by which the drainage is to be accomplished and the means to be applied, but the act itself still stands.
    The main reliance of the plaintiffs is, that the lands belonging to them have not been and will not be benefited by the drainage works which are now in progress. But this allegation is not supported by the testimony of the witnesses.
    APPEAL from tbe Fifth District Court, parish of Orleans. Leanmoni, J.
    
      George L. Bright, for plaintiff and appellee. B. F. Jonas„ city attorney, for defendant and appellant.
   On Motion to Dismiss.

Ludeling, C. J.

A motion to dismiss this appeal is made by each' of tbe two plaintiffs, the bank and George L. Bright, on the grounds-that all tbe plaintiffs are not made parties to the appeal. There is-only one judgment in the case from which an appeal was granted, in open court, within ten days after the rendition of the judgment, and. at the same term of the court. No citation was necessary, and both plaintiffs were made parties to said appeal, taken by motion. The fact that afterward a petition for an appeal was filed, did not affect what had been previously done.

The motion to dismiss is overruled.

On the MeRits.

Morgan, J.

In 1858 the Legislature passed an act entitled An Act to provide for leveeing, draining and reclaiming swamp lands in certain portions of the parishes of Orleans and Jefferson.” Three draining districts were established by this act, the first, second and third.

Plaintiff owns property comprised within the second district, as established by law.

Property situated within the districts was subject to a tax. Plaintiff paid the tax assessed to its property, under a judgment obtained against them, amounting to over $38,000.

The object of this suit is to recover the amount of that tax. The ground upon which the demand rests is that no portion of their land had been drained up to the year 1871, when the Legislature (act No. 30, 1871, p. 75) excluded them from the drainage district. The act in question is entitled “An Act for the drainage of New Orleans.”

We do not see from an examination of this act that it repeals the act of 1858. It changes in some degree the mode by which the drain age is to be accomplished, and the means to be applied thereto, but the act itself still stands.

The main reliance of the plaintiff is, that the lands belonging to the bank have not been, and are not to be, benefited by the drainage works which are now in progress. But the testimony of the witnesses shows that when the canals, etc., now in process of construction will have been completed, plaintiff’s lands will be drained. If this be so, and we order the defendant to return the money which has been received, the result would be that plaintiff’s land will be drained at others’ expense. We do not think that the law authorizes the judgment which was rendered in plaintiff’s favor.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that there be judgment in favor of the defendant, with costs in both courts.

Ludeling, C. J. I concur in the decree.

Rehearing refused.  