The opinion
On Eehearing.
Blanchard, J.
Plaintiff Company’s street railway franchise was assessed, for the purposes of taxation, at six hundred and fifty-eight thousand, three hundred dollars, for the year 1897. It contested this assessment, claiming the same was excessive, and prayed its reduction to three hundred and seventeen thousand, six hundred and ninety-seven dollars, which it asserted to be its value, or “to such figure” as the court might decide “to be the true and correct value thereof.”
The court of the first instance rejected its demand and maintained the assessment at the sum fixed by the Board of Assessors.
An appeal by the corporation followed and on June 28, 1898, this court handed down its opinion and decree affirming the judgment appealed from.
Whereupon, in an application for a re-hearing filed by the company, it was pointed out that pending the submission of the cause, and while the same was under advisement by this court, plaintiff had settled all taxes claimed of it by the city of New Orleans, and that this was made to appear by the tax receipt presented to the court on the 13th • of June and prior to the decision of the cause here. It was further represented that there had been a failure to give due consideration and proper effect to this settlement in the decision of the court and because of this, and for other reasons averred, a rehearing was asked.
Acting on this application, the court, on November 21st, 1898, made the following order:
“It is ordered that the rehearing applied for in this ease be granted on the question of the reduction of taxes, in accordance with an agreement claimed to have been entered into by the parties in interest.”
Subsequently, counsel for the State Tax Collector appeared, and •pointing out that the ground upon which alone the rehearing had been granted, applied only to the city of New Orleans, and to the taxes due *464 to said city, and did not in any manner refer to the State, or to the taxes claimed by the State, asked that the State’s interest in the ease bn excluded from the operation of the order granting the rehearing,, and that the application for rehearing as to the State be denied.
The court granted this motion, as follows: “It is ordered that the rehearing applied for in this case by the plaintiff be refused as far as it affects the State of Louisiana.”
By this action the judgment of the court, so far as the State was concerned, became final, and what was left of the controversy between plaintiff company and the city of New Orleans alone remained.
It is to that we address ourselves.
We find that the Comptroller of the city, formally authorized thereto by the City Council of New Orleans, has received six hundred and fifty-eight dollars, in full, of balance of city taxes from plaintiff company for the year 1897, having previously received ten thousand dollars, on account of said taxes for that year, and has receipted the company in full as against all demands for city taxes for 1897.
There is no pretense that the city has since rescinded, or attempted to rescind the action thus taken, nor does it appear that any steps have been taken by it or by any other interest to have the same repudiated. overthrown and annulled.
This is not a case wherein the question properly arises whether or not the city can make, or has made a valid compromise of a tax judgmen fc.
When plaintiff company’s taxes were paid to the city there was no final judgment in favor of the city for any specific amount of taxes, nor has the city been enjoined from receiving any money pursuant to any compromise, nor from carrying out the provisions of any compromise.
Proper parties to raise these questions are not before the court.
The only parties here are plaintiff company and the city, and these two have agreed on a settlement of the taxes in dispute in this case as due the city, and the same have been paid.
The questions of law raised by the City Attorney with reference to this settlement of taxes are not considered before us in proper form for our determination.
Nor is the other question that the rehearing applied for in this case, so far as the State is concerned, having been refused, and the State Tax Collector eliminated thereby from the case, no question of *465 the reduction, of assessment can be considered, since the State Tax Collector is a necessary party in suits for the reduction of assessments.
But were this question before us, it suffices to say that the rehearing granted plaintiff, so far ás the city of New Orleans is concerned* having been conceded before a rehearing was refused on that part of the ease appertaining to the State, it is considered that proper parties-appellant and appellee are retained before the court for all purposes necessary to give life and validity to the order granting the rehearing, on the city’s branch of the case. Surely it,*is not expected the court, will hold it did a certain thing, made a certain order, and then proceeded to do that which renders vain and nugatory the previous order... While the State is eliminated from further concern in the case by the-rehearing refused on its branch of the controversy, the Tax Collector' is retained on the other branch of the case so far as he may be made; by the law, a necessary party to suits of this character.
Neither can the contention of the City Attorney, that the tax receipt-produced is in the nature of new evidence not receivable in this court, be maintained. In White vs. Ramsey, 14 La. Ann. 328 , a motion wa& made to dismiss the appeal on the ground of the appellant’s voluntary execution of the judgment by its payment after the appeal was-granted. The motion alleged payment and the fact of payment was-sworn to in an affidavit by plaintiff’s authorized agent. It-was held the showing of payment could be made in this court, and as it constituted voluntary execution of the judgment, the right of appeal was extinguished, citing C. P. 567.
So, we hold in the instant case that the city’s tax receipt in full of all taxes it claims against the appellant, is admissable here to show satisfaction and settlement, so far as this case, as it now stands before-us, is concerned.
The city does not deny the payment, and hence there appears to be-no reason to remand the case on this ground, to inquire into the fact of payment.
Nothing is intended to be decided and concluded herein except that as the case now stands before us, a settlement of the controversy between the only parties remaining in the litigation appears to have been reached, and, this being so, there is no warrant to maintain the-former decree herein handed down against appellant, so far as its tax obligation to the city of New Orleans for the year 1897 is concerned»
*466 It is, therefore, ordered that that decree in the particular mentioned, be set aside; the judgment appealed from to that extent be reversed and avoided, and the suit as between plaintiff and the city of New Orleans be dismissed at plaintiff’s costs in both courts.
Niciiolls, O. J., and Miller, J., dissent.