Johnson v. Town of Donaldsonville , 33 La. Ann. 366 ( 1881 )

The opinion oí the Oourt was delivered by

Fenner, J.

The bonds here sued on are of the same series with those involved in the cases of Oubre, Dugas and Maurin against the same defendant, recently decided by us.

Attempt is made to show that the rights of plaintiff as a creditor of the defendant have already been judicially established, in a suit on these same bonds, by a decree of this Oourt rendered in the unreported case between the same parties, No. 6129, on the docket of this Court.

A reference to the decree rendered in that case shows that plaintiff recovered judgment only for the sum of $320, past due interest, an amount clearly within the provision made, and that as to the balance of his claim for $2011 05, it was dismissed as of nonsuit; and that the court directed the collection of the annual tax for the years 1871 and 1872, and the payment out of the same of the judgment rendered in his favor.

The opinion of the Oourt shows that the defenses maintained by us, if then set up at all, were not passed bn. It is doubtful if they would have been maintainable against the demand for the interest then clue which, as before stated, was clearly within the amount of the provision made.

Bes judicata has no application, and the claim- of plaintiff must fall under the principles announced in the Oubre and other cases decided by us.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now adjudged and decreed that the following be recognized and declared to be the amount remaining unpaid upon the bonds held by plaintiff and sued on herein, to wit: $2493 70 1-5, with flvé per cent per annum interest on $160 88 2-5 from 1st April, 1874, on $160 88 2-5 from April 1st, 1875, on $160 88 2-5 from April 1st, 1876, and with eight per cent per annum interest on $2011 05 from April 1st, 1876, that plaintiff be recognized and declared to be creditor of the. defendant for his ratable share of the six thousand dollars remaining unpaid out of the provision made for the redemption of the principal and interest of the bonds issued under the resolution of the Mayor and Board of Selectmen of defendant, dated March 20,1866, said ratable share to be the proportion of said six thousand dollars which the amount remaining unpaid on plaintiff’s bonds as above settled, shall bear to the amount remaining unpaid on all the bonds issued in pursuance of said resolution; and that the defendant be condemned to pay the amount of said ratable share.

It is further ordered that the collector proceed forthwith to collect the special tax of one thousand dollars levied by the ordinance of March 20, 1866, on the assessment rolls of 1871, 1872, 1873, 1874, 1875 •and 1876, and to turn the proceeds over to the treasurer or proper authorities o£ the town of Donaldsonville, to be applied to the satisfaction of the debt due plaintiff according to the principles stated in this decree, •and subject to the orders of the court a qua in execution thereof. And that the costs of this appeal be paid by plaintiff and appellee, and those •of the lower court by defendant.