Gaiennie Co. v. Weir , 133 La. 22 ( 1912 )

His Honor,

EMILE GODCHAUX,

rendered the opinion' and decree of the Court, as follows:

Gaiennie Company, Limited, as furnisher of the plumbing and gas fitting work, and W. W. Carre ‘Company, as furnisher of all lumber required for the construction of the building, each filed a separate suit for balances of $555.25 and $511.75 respectively due them, against Weir, as builder, the Eureka Homestead Society, as owner, and the National Surety Company, the surety on the builder’s bond under Act 134 of 1906.

The cases were instituted on different dates, were separately docketed, and .in each of them the defendants severally filed separate defenses. When the cases were called for trial, counsel for all parties, agreed that they should be tried concurrently; that the testimony taken in one cáse, but applicable to the other, should be considered as testiniony in the latter case, but that separate judgments' should be rendered'.

This. agreement was carried out, and finally there was a separate judgment rendered in each case in favor of the respective plaintiffs, as prayed for, and against the .several defendants, in solido. - One of the defendants acquiesced in these judgments, but each, of the other defendants applied for and secured in each case separate orders-of appeal1, and;filed separate bonds.' After these appeals had been granted, the lower Court, with the consent of counsel, granted an order to the effect,-that-for the purpose of appeal, the records in the two' .case's be consolidated, and that one transcript be made for the several appeals. Separate transcripts of the minute entries, orders-and the appeal bonds, etc., in each case were prepared and certified to, and then bound together as one and the original record of the pleadings, evidence and the several judgments were enclosed' in this and the whole presented. for filing in .this Court. The Clerk of this Court demanded a fee of $100.00, on the ground that there were two separate cases below and two appeals in each case, thus constituting four cases on appeal', for which a charge of $25.00 in each case was proper under the provisions of Act 63 of 1908, which' prescribed’that the clerk shall exact a feé pf $25.00 “for filing the 'record of appeal in ’ any case .where the demand'or fund to bp distributed” exceeds five’hundred dollars.' . ;

' The charge demanded was paid under protest, and the matter presently, before us is an application for a refund of $75.00 of the amount paid, on. the ground that "thepe is only one case on appeal, and that the proper, ‘charge should have been $25.00. " ‘

It thus appears that the only identity between the tWo oases consisted in -the mere incident that some of the testimony to be taken would be'relevant to both actions. For that reason it was agreed that the trials should be held concurrently and that the facts thus elicited should be used in each case in so far as-applicable thereto. This was done not because identical demands or defense^,were involved in the two cases, but solely for the,, .purposes of expediency and economy. To all other intents and purposes the t,wo cases involved distinct causes of action and of defense between different adversaries and were proceeded with as such, below beyond even the rendition of the separate final judgments and to the point of securing of separate appeals, and the filing of separate appeal bonds.

Upon these facts there can be no question but that there were two cases appealed from, for which ..separate filing charges were demandable within the clear intent and meaning of the provisions of the act fixing the clerk’s filing fees in this Court and that the clérk thereof was justified in fixing a filing fee of $25.00 in each of said cases.

The action of the trial Court and of the parties in attempting td fix the status of the cases on appeal after final judgment and after the matter had proceeded beyond the lower 'Court’s jurisdiction was wholly without effect.

Succession of Clairteaux, 35 An., 1178.

We are satisfied, however, that the clerk had no authority tó charge'$25.00 fór eách of the two appeals in either case/ ’ The law prescribes that, the charge shall be, “for filing á record of appeal in any case. ’ ’ While there were two appeals in each case, they were taken concurrently from a single judgment, and they were brought before this Court- at one and the same time, in, a single “record of appeal ’ ’ — a practice which has long been sanctioned.

Syllabus on the Merits. 1.. A building is not completed within the meaning of Act 134 of 1906, until it is ready for final delivery "and has been tendered to the owner and he has accepted same, or is in default for not having done so. 2. An attested account of a claim based upon a contract for furnishing and installing the plumbing and gas fitting work required in a building at a fixed price, is sufficient within R. C. C., 2772 and Act 134 of 1906 if it sets forth generally the nature and price of the contract and the payments made thereon. 3. The question of the relative liability, inter sese, of owner, and surety under Act 134 of 1906, raised by the former in its answer to a suit by a máterial-man, cannot be adjudi? cated upon in the absence of service of such answer upon the surety or of issue otherwise joined thereon.

Appeal from the Civil District Court,- Parish of Orleans, Division “B,” No. 91,546, Hon. F. D. King, Judge.

Opinion and decree, November 11, 1912.

Succession of Tauzanne, 36 An., 420

Bahan v Langfield, 16 An., 156.

McGragor v. Baker, 12 An., 289.

Breaux v. Lumber Co., 125 La., 421.

Upon the facts presented, we hold that there is but one “record of appeal” in each case notwithstanding that each record contains two appeals. What we now hold is not intended to apply to any case where the facts presented are not identical to the case at bar.

The Clerk of this Court is accordingly ordered to refund to the National Surety Company, the appellant herein, the sum of fifty dollars.

Buie absolute.

'•B'uéli,-V^alsñe & B.üok:, for-pitdntiffdnd’hppéllfeé:- . McCloskey; &, Benedict, Grant & Grant,' for defendant and appelíánt: , , ;r-