# State ex rel. Newman v. Burke

> Supreme Court of Louisiana · January 15, 1883 · 35 La. Ann. 185

URL: https://www.frixlaw.com/law-library/cases/7192557

## Case

- **Full name:** The State of Louisiana ex rel. Isidore Newman v. E. A. Burke, Treasurer P. O. Fazende and John Elliott, Intervenors
- **Court:** Supreme Court of Louisiana
- **Decided:** January 15, 1883
- **Citations:** 35 La. Ann. 185
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Fenner
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7192557

## Opinion text

On Application for Rehearing;.
The points upon which we are asked to amend our decree are of á character that we may dispose of them on this application without the necessity of granting a rehearing.
*194 I.
In our opinion we took from an agreement found in the record the statement that the amount in the treasury to meet payment of coupons due January 1, 1880, was $369,344.83. By a- stipulation in writing, signed by all the parties in interest and filed with this application for rehearing, it is admitted that, through inadvertence, this amount was erroneously stated, and that the correct amount is $330,000, and it is agreed that a correction may be made accordingly, so as to conform to the facts. We accomplish the object of this request by thus noting the agreement and approving the correction as prayed for.
II.
Our attention is called to the following expression in our opinion, viz : “ it is alleged and not denied, that there is in said treasury ample funds to pay all outstanding and unpaid warrants for the years 1880 and 1881.”
Although there was no denial, general or special, in the answers of the Treasurer and of the Auditor, it is pointed out that the answer of the Fiscal Agent does contain a general denial; and the defendants aver that, in point of fact, even with the addition of the interest fund to be transferred to the general fund, there will not be sufficient to pay all outstanding warrants of 1880 and 1881.
Without discussing technical questions of pleading, we think our decree may be recast so as to protect the interests of all claimants upon the fund, without injuring any possible legal rights of relator.
He is, and can be entitled only to his rateable share of the fund arising from a distribution thereof, according to law. If it be true, as alleged by him, that it is sufficient to pay all, of course, he will be paid in full. If that be not true, we avoid the risk of giving him more than he is legally entitled to, of which, certainly, he cannot complain.
This record does not enable us to determine the relative rights of relator and other warrant holders upon the fund, and we confine ourselves to a general order to distribute “ according to lawq” leaving conflicting claims of warrant holders, founded on differences in dates or nature, to be settled in other proceedings.
It is, therefore, now ordered that our former decree herein be amended so as to read as follows:
It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and, proceeding to render such judgment as should have been rendered by the lower court, it is now ordered that the intervention of P. 0. Fazende be dismissed, and that the demand of the intervenors, John Elliott et al., be rejected except so far as hereinafter allowed, and that the writ of mandamus, prayed for in the petition of relator, issue and be made peremptory, in *195 so far as to command the defendants, severally, to conform their books to the requirements of the law, by transferring the interest taxes collected to meet the coupons of consolidated bonds falling due January 1st, 1880, to the general fund of the State, without prejudice, however, to the right and duty of defendants to retain in statu quo so much of the fund in controversy as may be necessary to satisfy the pending claims of S. J. Hart and John Elliott et al., as set forth in the answers of defendants herein and in the intervention of said Elliott et al., in case judgment should be rendered in their favor in the judicial proceedings instituted by them and now pending in the Supreme Court of the United States, as appears from the pleadings herein ; and in so far, further, as to command said defendants to distribute said funds transferred as aforesaid, according to law, in payment of warrants, including those of relator, drawn upon the general fund for expenses of the State government for the years 1880 and 1881; costs of the lower court and of this appeal to be paid by defendants and intervenors.
Rehearing refused.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7192557. Public record. Not legal advice.