
    No. 12,488.
    Mrs. C. Brown and Her Husband vs. Pontchartrain Land Company et als.
    On Motion to dismiss.
    
      Appellate Court-may exercise jurisdiction to interpret its o-wn decree.
    
    The appeal was a branch of the first case in which this court rendered judgment. The appellate court had jurisdiction in the matter of interpreting its own judgment. C. P., 6 N. S. 276; 9 An. 496; 6R.92; 48 An. 33.
    Statement or Pacts.
    while it is true that a statement of facts when relied on to bring the cause before the appellate court must be made out before the judgment Is signed, a motion to dismiss an appeal on the ground that it had not been made out before the ¡judgment must be filed within three (3) judicial days alter the filing of the record. 3 An. B26.
    On the Merits.
    
      The return of tax collector should include all sums,
    
    A tax collector can not be compelled to disobey the directions of the auditor besides violate the law in order that he may retain in his hands the purchase price of a tax sale, which may be pronounced null.
    
      Money should be returned by the State.
    
    If the money has been paid into the treasury it should be returned by the State; but no recovery can be had from the tax collector.
    The price is not due by him personally nor can it be paid out of any funds remaining in his hands.
    On Rehearing.
    
      Nichoiisy a y.
    
    It does not follow as a necessary consequence of the fact that some of the evidence adduced on a trial in the District Court was not preserved and transcribed in the record filed on appeal or brought up through bills of exceptions that the appeal should be dismissed. It frequently happens that issues are presented for decision on appeal in order to come to a knowledge of which the testimony taken in the case is not needed. State vs. Bank of Louisiana, 5 N. S. 341. Whether a (particular record presents sufficient data upon which the Supreme Court would be justified in avoiding or amending a judgment below can only be known after it shall have ascertained the contentions of the parties and made an examination of the transcript filed.
    After an appeal has been regularly taken the appellee is entitled to have a judgment rendered upon the issues raised. It is the duty of an appellant to place matters before an appellate court in manner such as to permit of such a judgment being rendered, and if he does not do so the logical sequence of the situation is that the judgment should be affirmed rather than that the appeal should be dismissed in limine. Appeals are frequently dismissed after hearing which it would be improper to dismiss in limine.
    
    Where defendant in a petitory action having called his vendor in warranty has been cast in the action, but has obtained a judgment over against his warrantor, takes an appeal in open court, the appeal carries the entire case, including the case in warranty, into the appellate court — though the amount directly involved in the case in warranty may be less than that which would be required to give the Supreme Court jurisdiction in an original andseparate and independent suit.
    Where the Supreme Court has on appeal disposed under such circumstances of the case in warranty, it has the power to supervise the execution of that part of the judgment and see that it be carried out according to its terms under Art. 629 of the Code of Practice, even though the question be presented in the “¡form” of an “appeal” Though the proceeding take that form it is really one supervisory in character in aid of and to make effectual appellate jurisdiction. State vs. Judge, 19 La. 180,181.
    The State is not subject to a call in warranty nor liable for costs of court.
    
      Act No. 82 0/1884 is not a general act covering all tax sales made in the State. Its provisions refer to the tax sales made under that special act. All its sections point to the funds out of which commissions, expenses, costs and the refunding of the purchase price to evicted purchasers of property bought at tax sales are to be met as those which will pass into the hands of the tax collector as arising from sales of that particular class of property under that act.
    
      A PPEAL from the Civil District. Court for the Parish of Orleans. Bightor, J.
    
    
      Benjamin Bice Forman for Pontchartrain Land Company, Plaintiff in Rule to tax costs and execute judgment, Appellee.
    
      F. O. Zacharie for B. T. Walshe, Tax Collector, Defendant in Rule, Appellant,
    Argued and submitted April 29, 1897.
    Opinion handed down May 10, 1897.
    Rehearing granted May 30, 1897.
    Argued and submitted on rehearing December 4, 1897.
    Opinion handed down December 28, 1897.
   On Motion to Dismiss.

The opinion of the court was delivered by

Breaux, J.

The appellee moved to dismiss on grounds, to-wit:

1. The amount in dispute is less than the jurisdictional amount.

2. The statement of facts was not procured before the appeal was granted, citing in support of this proposition the following: Scott vs. Blanchard, 8 N. S. 305; Hodge vs. Creditors, 3 L. 455; LeBlanc vs. Broussard, 16 L. 137, and Logan vs. Windsor, 20 An. 253.

The facts are, as relates to the first ground to dismiss, that on plaintiff’s petition the tax sale which had been made of her property in 1894 to the defendant was decreed null and void by the District Court, and the tax collector was expressly ordered to return the amount of the purchase price. This judgment was rendered in March, 1896. The tax collector did not appeal.

On appeal to this court the judgment was affirmed in May, 1896. Mrs. Brown and Husband vs. Land Co., 48 An. 1188.

Before the District Court the defendant, in October, 1896, filed a rule on the tax collector, (who had been called in warranty in the case in which the judgment of nullity of the tax title was pronounced) , to compel him to pay the purchase price and costs to the mover. This rule was filed after the tax collector had paid the amount to the Auditor of the State.

The rule was made absolute, and the tax collector was condemned to pay the purchase price and costs, quoting from the judgment, out of any funds in his hands, and that the said company have any writ of process, authorized by law, to enforce this order.”

The appellant’s contention is, that this court is without jurisdiction.

The appellant, in support of his appeal as relates to jurisdiction, invoked Art. 629 of the 0. P., (conferring authority needful in matter of the interpretation and execution of the judgment it has rendered, irrespective of the amount involved), and urged that the present appeal was merely a branch of the case cited supra, in which jurisdiction was incontestable; that judgments of the court a qua interpreting the decree of this court are appealable.

Our attention was directed to the early case of Holstein vs. Henderson, 6 N. S. 276, in which the court asserted jurisdiction and the power of revision, if the court of first instance does not correctly interpret its judgment as rendered on appeal.

The question was considered in Lovelace vs. Taylor, 6 R. 92, and the court said in substance, if the one against whom the judgment was pronounced thinks himself injured by a mistaken interpretation of the judgment he must seek relief by a suspensive appeal. In relation to a final judgment, similar views were expressed in Hays vs. March, 11 Louisiana, 369.

The question was argued in the case of Dennistoun vs. Rist, 9 An. 464, and the court said, while indisposed to interfere with the court of the first instance, it would interfere in the matter of interpreting its judgment, if the record presented a clear case of denial of justice or oppression.”

The last utterance of this court upon the subject was in State ex rel. Construction Co. vs. Tax Collector, 48 An. 33, in substance reiterating the views expressed in the decisions from which we have quoted. The court asserted jurisdiction and control of the interpretation to be placed upon its judgment.

We pass to the next ground urged, i. e., that the statement of facts should be made before the appeal is obtained.

We think it in place to state that the statement of facts prepared by the judge after the appeal had been taken shows that the tax collector gave public notice that “incase the purchaser failed to obtain possession within thirty days after the sale, he would’ hold the proceeds and refund the price to the purchaser if applied to within that delay; that the purchaser did apply within the delay for a second extension of thirty days, at the end of which the defendant applied for a third extension of thirty days. When the time for the settlement of the tax collector with the Auditor had arrived, the tax collector referred the application for further delay to the Auditor, who refused and ordered the tax collector to turn the funds into the State treasury in his settlement, which was past due. The tax collector complied with the law and from that time he was without funds to refund the purchase price; that he. was without authority to divert any other funds from tax sales or tax collections to the reimbursement of the purchase price, and that if he was obliged to pay the amount he would have to pay out of his private funds.”

To the ground to dismiss because df the delay in applying for and procuring the foregoiug statement of the facts, the appellant interposes the objection that it was too late to have any effect.

It is true, as stated by the appellee, that the motion to dismiss was filed after tne delay for filing such motions had elapsed. The ground not being jurisdictional, we can not entertain it. This court said: “A motion to dismiss on the ground of any informality in the mode of bringing up an appeal must be made within three judicial days after the filing of the record.” Hall vs. Nevill, 3 An. 326. This rule has been enforced in a number of cases.

The motion to dismiss is overruled.

ON THE! MERITS.

The question before us for determination is whether, in view of the delay in this case, the tax collector can be held responsible for the price.

It must be borne in mind that it is the duty of this officer to make settlements of all amounts he has received for the State, at stated times.

A failure to comply exposes him to arrest and criminal prosecution, at the instance of the officer of the State with whom the settlement must be made. The final settlement he is ordered to make should cover all amounts received; this includes the purchase price of property sold at tax sale. It was necessary, in order that the purchaser might protect whatever rights he had acquired under the judgment, to take immediate steps for its enforcement.

Granted that, prior to the judgment, the amount had been retained, the tax collector could not, without an open violation of the statute, continue to retain it after the judgment had been rendered. It devolved upon the purchaser at once to call upon him for payment. After the delays had elapsed it was not unreasonable to assume that as against him the right to require restitution had been abandoned, and that it only remained for him to comply with the statute and turn the amount into the State Treasury.

But it may be said in answer that the amount had already been accounted for and a settlement made with the State previous to the judgment.

We may state at this time that, had that fact been made known on the trial, that an account had been rendered and a settlement made as required, the officer would not have been ordered to return a price no longer in his possession.

We are now dealing with delays which elapsed after the judgment, and as to these, it does not appear to us unreasonable that they should operate as an estoppel preventing recovery, without regard as to whether settlement of this price was made by turning in the amount into the treasury prior or after the judgment. There were prejudicial delays before and after the judgment. At least seven settlements had been made with the Auditor after the judgment was obtained. Should officers who are commanded by law to exact final settlements or to make final settlements be compelled to make settlement, after settlement without closing their accounts completely, although so ordered, in order to await the pleasure of a tardy purchaser at tax sale?

After the judgment, the officer was required to pay over to the State. A delay at that time is equally as fatal as a delay prior to judgment. Referring to delay Mr. Oooley on Taxation says: But in general, if the money, though actually collected under compulsion, is paid over to the proper receiving officer before the suit is brought, the treasurer is protected, and this principle has been applied to cases in which the officer’s authority was void for unconstitutional or other reason.”

The authorities all hold that after the money has been paid into the treasury no recovery can be had from the tax collector. Houston vs. Tax Collector, 39 An. 33; Eng. and Am. Ency. of Law, Vol. 25, p. 443.

But there is a consideration far more controlling than the foregoing, we think.

It is that the judgment appealed from decrees that the claim of appellee be paid out of any funds in his hands.

That is not possible under the law as we interpret the statutes upon the subject.

We understand that the collectors of taxes in making their return to the Auditor (which must be sworn to) of amounts collected for the State and parish taxes, must state separately in the returns upon suitable blanks for the purpose the amount of the general fund, interest and other funds. Interest funds, for instance, can not. be applied to the payment of the price of a tax sale, which has beers, annulled.

It follows that the tax collector can not pay out of any fund Such payment would disturb balances and effect the verity of his affidavit to the return.

The judgment of this court (iu the case beiore decided between these parties) ordered payment, but not from any fund nor from the State Tax Oollector individually or personally.

The amount is unquestionably due, and although small it should not be overlooked by the legislative branch in appropriating funds to-meet legitimate claims against funds to which the State has no right.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and plaintiff and. appellee’s rule dismissed.

' ON Rehearing.

Nicholls, C. J.

It is contended on rehearing first that the court erred in not sustaining the motion to dismiss the appeal, and second (assuming the case to be before it properly on the merits) that the judgment below should have been affirmed, not reversed.

On the first point is said “ it is conceded that the record does not contain all the evidence adduced on the trial,” and in view of that fact the appeal should fall, but independently of this “ the matter in dispute is too small in amount to bring the case within the appellate jurisdiction of the Supreme Oourt.” It does not follow as a necessary consequence of the fact that some of the evidence’adduced on a trial below was not preserved and transcribed in the record filed-on appeal, or brought up through bills of exception, that the appeal should be dismissed.

It is true that the Supreme Oourt can only exercise its jurisdiction in so far as it shall have knowledge of the matters contested below (Art. 896, O. P.), but it frequently happens that issues are presented for decision on appeal in order to come to a knowledge of which the testimony taken in the case is not needed. State vs. Bank of Louisiana, 5 N. S. 341. Whether a particular record presents sufficient data upon which we would be justified in avoiding or amending a judgment below we can only know after we shall have heard the contention of the respective parties and made an examination, of the transcript filed.

After an appeal has been regularly taken the appellee is entitled to have a judgment rendered upon the issues raised. It is the duty of an appellant to place matters before an appellate court in manner such as to permit of such a judgment being rendered, and if he does not do so the logical sequence of the situation is that the judgment should be affirmed, not that the appeal should be dismissed in limine. We are aware that courts frequently, after having ascertained that the situation was not such as to enable it under any view of the case to render a judgment altering or modifying that appealed from, to declare the “ appeal dismissed,” but this is because it is assumed that such a decree is substantially one of affirmance.

There is no ground for dismissing this appeal in limine, even i f the statement of facts made out by the judge, which we find appended to the transcript, was made out improperly or illegally, and should be ultimately disregarded.

The demand for-a dismissal of the appeal on the ground that the matter in dispute is insufficient to enable the Supreme Oourt to entertain jurisdiction is based upon the position that the original judgment in this case as between the defendant and the State Tax Collector did not come before this court at all, and has never been anything else than a judgment of the District Oourt, when the Pontchartrain Land Company appealed the main case. That this court was not called upon or authorized to pass upon it on the appeal of the land company, and that our judgment of affirmance rendered at that time did not deal with the judgment of the Dictrijt Court as between the defendant and the tax collector. That the theory, therefore, of the present appellant, that that judgment by the said affirmance became that of this court, and that therefore, we are authorized, under Art. 629 of the Code. ofjPractiee to supervise and control its execution and see that it be carried out accordingly is without a legal basis on which to rest.

It is not disputed that at the present time both the judgment on the main demand and that between defendant and the tax collector are beyond the power of control by appeal from the judgments themselves, whether they be considered as judgments of this court or of the District Court.

The property which gave rise to this controversy was held by the State with other properties under adjudications made to it in enforcement of delinquent taxes. By Act No. 82 of 1884 the tax collectors of the different parishes were directed to sell these properties under the provisions of that act. This particular property was sold on the 21st day of June, 1894, and adjudicated to John H. Griffith, to whom a deed was given on the 6th of August, 1894. The latter on the 16th day of August, 1894, sold the property to the Pontchartrain Land Company. On that company’s applying to the court to be placed in possession Mrs. Brown, claiming to be the owner of the property, and that the adjudication to the State and that by the State to Griffith had not divested herself and her authors of their title, enjoined the land company and the civil sheriff from further acting in the premises — attacked the adjudications as null and void and of no effect, and prayed that she be decreed the owner of the property. The Pontchartrain Land Company in answer to this attack asserted the validity of the adjudications and the legality of their title and called in warranty B. T. Walshe, the tax collector who had made the sale to ■Griffith, praying in the event of a judgment adverse to them that he be condemned to pay them forty-four dollars with interest and costs. The amount claimed was made up of thirty-six dollars, the price of the adjudication to Griffith, two dollars for tax researches, six dollars copy of deed and plan.

The suit terminated in a judgment of the District Court in favor of Mrs. Brown against the Pontchartrain Land Company, declaring the adjudications null, void and of no effect, and recognizing her as owner of the property, and in favor of the Pontchartrain Land Company against B. T. Walshe, State Tax Collector, ordering the said tax collector to refund to the Pontchartrain Land Company the sum of thirty-six dollars, the same being the amount of the purchase price.” The judgment further decreed that the Pontchartrain Land Company pay the costs of the proceedings.

The Land Company moved for and obtained in open court an appeal from the judgment to the Supreme Coürt. The Supreme Court on this appeal “ affirmed the judgment.”

In the return of the judgment of the Supreme Court to the District Court the Pontchartrain Land Company alleging that by judgment of the District Court, signed 16th March, 1895, it had ordered B. T. Walsh, State Tax Collector, to pay them thirty-six dollars, which the said B. T. Walshe refused to pay although demanded that costs follow judgment and clerk’s costs amount to—

Judgment.$36 00
44 00
Short-hand testimony. 6 00
Oosts Supreme Court.. 16 00
Sheriff’s costs. 6 00
Total.$108 00.

caused a rule to issue to B. T. Walshe, Tax Collector, to show cause why said costs should not be taxed and why he should not pay said amounts, or in default thereof be punished for contempt of court; a writ of distringas issue, a fieri facias issue, or such other orders be made.

After hearing the court made the rule absolute, ordering Blaney T. Walshe, Tax Collector, to pay to the Pontchartrain Land Company the sum of one hundred and eight dollars out of any funds in his hands, and that the said company have any writ or process authorized by law to enforce this order.

From the judgment on this rule the State Tax Collector appealed to the Supreme Court.

There is no doubt that when the Pontchartrain Land Company moved in open court for and obtained an appeal from the judgment of the District Court setting aside the sale by virtue of which it was claimed that the title of Mrs. Brown arid her § authors had been divested from them and had become vested in that company, that the effect of the same was to make the warrantor whom she had called into the case a party to the appeal. The warrantor was made a party in the District Court only through the call in warranty, and we think that the proceedings in warranty ¡¡necessarily formed part of the case when it went to the appellate court. The plaintiff was authorized on appeal to ask for an amendment of the judgment in any respect in which she conceived herself aggrieved and defendants were entitled to have made corresponding change in the judgment of the lower court as between themselves’and the warrantor should the amendment asked be granted and injuriously affect them in their relations with their warrantor.

The relations of the parties were so interdependent and connected — the rights and obligations of the one so much affected by the rights of the others as not to be easily separated. There are not involved in this litigation separate and independent titles held on the one hand by Mrs. Brown and on the other by the defendant, the State. The issue was simply whether a certain title held by the authors of Mrs. Brown, and which she presently set up as being in herself, was legally divested by certain tax proceedings directed against them and said property by the State, and had thereby vested in the Pontchartrain Land Company. In the attack made by the plaintiff against those proceedings and the sale thereunder, the property was declared to be over two thousand dollars in value, and the main suit fell legally within the appellate jurisdiction of this court. The call in warranty invoked by the defendant involved substantially, though not in express terms, a contingent demand as against the warrantor for the annulment of the title, which the latter had conveyed to them of the same property coupled with certain resulting personal demands against their vendor. The main demand with the call in warranty was an entirety, the latter being a mere incident of the former.

This court acted on that theory in Walshe vs. Harang, 48 An. 984, considering that the situation of parties was such as to call for a simultaneous general adjustment of their respective rights and obligations.

Appellees appear themselves to have been of that opinion, as in the rule taken after the appeal on the tax collector that officer was sought to be made liable through that judgment proprio vigore for the costs of that appeal.

Viewing the judgment on the call in warranty as having come to this court with the main demand, the proceedings taken in the Dis - triet Court in its execution fall under our supervision under Art. 629 C. P. independently of the amount involved in the particular matter of which complaint is made.

The complaint comes before us in the form of an “appeal,” but the proceeding is not in reality such, but one supervisory in character as matter connected with our appellate jurisdiction in order to aid and make it effectual. [State vs. Judge, 19 La. 180, 181.] The matter we think would have been more appropriately brought before us through certiorari and a qaasi-prohibition and under a return and answer of the District Judge than as it has been; but we see no particular objection as to the form of the proceeding, if the rules which the court would have followed had the form been different from what it is, be followed.

The motion to dismiss is overruled.

Having prefaced this much, we now direct our attention to the rule taken in the District Court on the tax collector in attempted enforcement of the judgment in warranty. The rule shows on its face that the mover was aware that the judgment was not enforceable by writ of fieri facias on funds of the State in the hands of the tax collector.

The judgment on the warranty call was not a money judgment for debt in any sense of the word. In the fourth section of Act No. 82 of 1884, under the provisions of which act the adjudication to Griffith was made, it was enacted that “in case the State shall fail to give to the purchaser an absolute title to the property sold, or if said property shall be declared null and void for any cause, the amount paid by the purchaser to the State for such property shall be refunded by the tax collectors to the purchaser.” The judgment in question is nothing more than a repetition of this mandate to the tax collector made in a proceeding to which he was a party. It threw no obligation upon the tax collector other than that which the law itself threw upon him. What was that obligation? Was it to pay costs in the proceeding to which he was so made a party? The District Oourt originally was of the opinion that it was not, and in that opinion it was correct, and we were not called on appeal to correct its judgment. It was only upon the return of the cause to the District Oourt that the views of that court changed. The State does not pay costs, and there is nothing in the provisions of the law in question which indicates any intention to make a change in that respect in favor of tax purchasers. The Pontchartrain Land Company asserts that the lawmaker declares in express terms that the tax collector should, upon the annulment of the tax title, refund to the purchaser the amount paid by the purchaser to the State. So it does, and so did also the original judgment of the District Oourt which was affirmed, but that judgment did not declare when, how nor under what circumstances this refunding was to take place. To ascertain these facts the judgment would have to be construed by the law itself. When so construed it is clear that neither this court nor the court below would be authorized to direct the tax collector to pay out the moneys of the State in manner as he had been directed by the District Court to pay them out. In the first place there is nothing in the law which would justify tax collectors in retaining State moneys in their hands-to contingently meet possible demands for the refunding of the price of annulled tax sales.- The law has fixed the time at which moneys in the hands of tax collectors have to be turned into the treasury, and it is the duty of those officers to comply with the law in that respect. Counsel of the land company say that the construction placed by this court on this subject as expressed would, if adhered to, practically make a dead letter of the law, inasmuch as all funds-would necessarily have to be paid into the treasury before a final judgment could be obtained as to the validity of a title.

We understand counsel’s contention to be that if the tax collector has-(in spite of what he claims was his duty) paid over the particular moneys which he received on account of these annulled sales into the treasury, he is authorized and directed by the law to refund to the purchasers the price thereof out of any moneys whatever which he might thereafter have in his hands. We think there is no warrant for this position. .Act No. 82 of 1884, in which this provision for refunding is found, is a public act, it is true, but it is not a general act covering all tax sales made in the State. It has refer- . enee to the tax sales to be made under the provisions of that particular act of the properties found in the precise situation which that-law refers to. All its sections point to the funds out of which expenses, costs, commissions, etc., are to be met as those which will pass into the hands of the tax collector as arising from the sale of that particular class of property.

We are of the opinion that the tax collector would be only justified in refunding to the purchaser the price which he had paid in the event that he should have at the time of the demand upon him for a-refunding of the price, based on the judgment of annulment of title,, funds in his hands arising out of the sales of lands made under the-provisions of Act No. 82 of 1884. It is not alleged in the rule taken upon the tax collector that a demand had been made upon him for payment out of funds arising from that source then in his hands, and that he had refused to make payment, or that he had any such funds in his hands. The theory of the mover, concurred in by the District Court, was and is that under the judgment in warranty the tax collector could be made to refund the price which the purchaser had paid, with costs, out of any moneys whatever which the collector might have in his hands. In this the court erred.

Eor the reasons assigned, it is ordered, adjudged and decreed that the judgment or decree of the District Court herein appealed from, upon the rule taken upon the tax collector, be and the same is hereby annulled and set aside, and the rule discharged without prejudice to further proceedings to be legally taken for refunding of the price paid by the Pontchartrain Land Company for the property adjudicated by the State to John H. Griffith, on the 21st of June, 1894, out of funds in the hands of the tax collector legally applicable to the refunding of such price. Costs of both courts to be paid by the Pontchartrain Land Company. Our original decree remains unchanged except in so far as herein modified.  