MORGAN vs. POLICE JURY OF POINTE COUPEE, 11 La. 157

Carleton, J., delivered the opinion of the court. This action was brought to recover from the defendants the sum of six thousand dollars, which the petitioner avers to be the price for which the construction of a road and levee on the lands of Sebastian Hiriart, was adjudged to him as the lowest bidder, under the police ordinances of the parish of p0inte Coupée; that he had faithfully executed the work, and complied with the conditions of his contract.

An application tooiate,1 afterSie canse is fixed for Where the judgment says “ the plaintiff has’ made out his case by the law and evidence,” itwillbedeemed to contain sufficient reason, within the provisions of the constitution. The defendants answered by general denial. The piajntiff* filed a supplemental petition, averring that after the completion of .the work, he brought suit by seizure and sale, against the lands of S.

Hiriart, which he finally lost before the Supreme Court, by reason of certain irregularities that occurred in the adjudication ; that, nevertheless, the defendants continue bound to pay the price stipulated by their contract.

To this amended petition the defendants reply, that the ordinances of the police jury, on which the proceedings were based, were of no force or effect, having never been legally promulgated previous to the adjudication ; and further, that the judgment in plaintiff’s suit against Hiriart, is a bar to the present action, and conclude by denying generally, all the facts alleged in the supplemental petition. The cause was fixed to be tried on the 19th May.

On the day next preceding, defendants’ counsel applied to the court for leave to submit the case to a jury ; the court overruled the motion, and on the 26th of the same month, tried the cause, and rendered judgment in favor of the plaintiff, for the sum claimed, with five per cent, interest, from judicial demand. From this decree, defendants appealed. We agree with the judge of the District Court, that the application for a jury came too late, after the cause was fixed for trial. Code of Practice, articles 494 and 495. Two bills of exceptions were tendered by defendants counsel, and allowed at the trial.

But as no notice is taken of them in the briefs submitted to this court, we are not required to pronounce upon them. Our attention is first directed by defendants’ counsel to the judgment of the District Court, which it is alleged is void for not containing the reasons upon which it is founded.

The language of the court is, “ this cause came on for trial, and after evidence and argument of counsel, the court-is of opinion that the plaintiff has made out his case by the law and evidence; it is, therefore, ordered, etc.” The act of the legislature, approved 24th March, 1828, empowering the police juries and inspectors of levees to seize and sell the lands of non-residents for repairs, etc. does not authorize and empower the undertaker to exercise this right. The same objection was taken and overruled in the case of Allen vs.

Peytavin, recently decided by this court, where the reasons for the judgment were less specifically set out, than in this. The court there said, it would be difficult to imagine a better reason for condemning the defendant, than that the law and the evidence are both against him. 10 Louisiana Reports, 42. It is further contended by defendant’s counsel, that by the law approved the 24th March, 1828,

section 1, page 128, entitled

an act to give certain powers to the police jury, and for other purposes, the parish cannot be made liable to the undertaker, except for the balance due after the seizure and sale of the lands upon which the works were constructed, or that the owner should become insolvent.

This law empowers the police jury and inspector of levees to seize and sell by executory process, the lands of the nonresident, to pay for the repairs; and declares, “ that the parish shall not be in any manner responsible for the amount of said works, unless the proceeds of the sale of said land should not be sufficient to pay the same, or the owner become insolvent.” The right to sue is by this law conferred upon the police jury or inspector, and not the undertaker. It appertains to them, and not to him, to protect the parish from responsibility by pursuing the lands, or showing the insolvency of the owner.

They, therefore, cannot complain that he has not done what the law confers upon them alone the right to perform. Such is the construction which we think justice requires should be given to the statute, and such must have been the intention of the legislature. It is next insisted that the plaintiff lost his right of action against the defendants, by his unsuccessful pursuit of the lands of the non-resident, by executory process, and that he is barred by the judgment of the Supreme Court, in the case of Morgan vs. Hiriart, 5 Louisiana Reports, 45. The plaintiff there’sought'payment under

section 5, page 8, of the law of 1831, which authorizes the seizure and-sale of the lands of a third person, in virtue of proceedings to which he was not a party, and under a mortgage to which he never gave his assent. The court, in their opinion, adverted to the case of Bouligny vs.

Dormenon, and sustained the position they then took, and said: “in that case, we held it to be necessary, in order to subject proprietors of land, whereon levees are required to be made, to the payment of expenses incurred under the proceedings of the parish police, that strict compliance with all regulations which permit an interference, on the part of the parochial authorities, in relation to the private property of individuals, should be shownand there exists stronger reasons, perhaps, for applying the same principles to the case now under consideration, when we take into view the

summary remedy allowed by the act of 1831.” Where the un* derlakcr to make a road and repair the levee, over the land of a non-residen(, by an. adjudication of the police jury, is prevented from having” recourse against the land and property of the owner, in satisfaction of his contract, on account of their neglect to publish the ordinance under which he acted, and give notice to the drawer, they will be liable to him for the amount of his ¿contract.

But if the defendants in this cause could entrench themselves behind any error which they had committed, in the promulgation of the police ordinances, or irregularity in the adjudication of the work, they would plainly take advantage of their own wrong, and might elude the force of any obligation they chose to contract, for similar purposes.

By not publishing the police ordinances as was incumbent on them, they have by their own neglect, put it out of the power of the undertaker to obtain the price of his labor from the sale of the lands ; and- if they should have thereby prevented themselves from pursuing a similar remedy, it is no reason why they should not pay the plaintiff agreeably to the terms of their contract. The evidence introduced by the plaintiff, we think, fully shows the performance of his undertaking.

He exhibited the proebs verbal of adjudications for the stipulated price ; the testimony of several witnesses who proved the value of the work by a calculation of the cubical contents of earth, incorporated in the levee, and the certificate of the inspector of roads and levees, attesting to the execution of bis agreement. “ Et que les dits travaux out été faits conformément h ce que luí avait été ordonné, et la vete,' et de la niéme manibre présente par les reglémenls du jury de police de cette paroisse.” The defendant introduced only one witness at the trial, ■whose testimony does not materially differ from the proof produced by plaintiff.

It is lastly contended by defendants’ counsel, that the value of the work ought to be estimated by the price of the labor of the slaves employed, fixed by one of the witnesses at seventy-five cents per day for each. But this, we think, would be entirely changing the nature of the case, and loosing sight of the contract of adjudication which forms the basis of the action, and on which the whole controversy turns. On the whole, after much reflection upon the points raised in the cause, we have come to the conclusion that there is no error in the decree of the court below.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.