Plaintiffs Brief — Werlein v. New Orleans

lid ae ak ela i ea

SUPREME COURT OF THE UNITED STATES.

For tHE OcToBEerR TERM oF 1898.

No. 678.

‘PHILIP WERLEIN, Prarntirr in Error,

versus

CITY OF NEW ORLEANS, Derenpantr 1n ERROR.

Brier oF PLAINTIFF IN Error oN Morion To Dismiss.

STATEMENT OF THE CASE.

John Klein haying obtained a judgment in the United

States Circnit Court for the Eastern District of Louisi-

ana, in suit No. 7801 of the docket of that court, seized

under a writ of fer? facias the property in question in this

case.

The city of New Orleans, claiming the property seized,

enjoined the sale of the property on various grounds in a

suit 7 the Circuit Court of the United States in a cause

éntitled City of New Orleans vs. John Klein, No. 8461 of

the docket of the Court.

The injunction suit was tried and the decision was ad-

verse to the city of New Orleans and in favor of John

Klein.

The property was then sold by the U. S. Marshal and

has been held for nearly ¢wenty years by the plaintiff in

.

at 2

error in this case by virtue of said judgment and mar-

shal’s sale.

About seventeen years ‘adr the title to the property

has vested in the plain'iff in error, the city of New Or-

leans brought the present suit, alleging that the property

was dedicated to public use and that the city of New Or-

leans was entitled to the use thereof, and entitled to the

recovery of the property.

' The defence made was that the plaintiff in error held

title to the property under and by virtue of the Constitu-

tion and laws of the United States, and under and by

virtue of the judgments of the Circuit Court of the United

States.

The Supreme Court of Louisiana, directly in their opin-

ion in this case, nullify and avoid the effect and force of

the judgments of the United States Circuit Court, which are

awept away as if entitled to no weight whatever.

The Federal question is raised whether force and effect

shall be given in a State court to a final judgment and a

title to a sale under a final judgment both of which were

réndered under the Constitution and laws of the United

States by a court of the United States.

“The quéstion is raised by exception and by our bill of

exceptions in the lower court. It is also in our assignment

of errors in the State Supreme Court.

* The judgment of the State Supreme Court in this case

shows that the federal question Aus been uryed and passed

upon adversely. City of New Orleans vs. Werlein, 50

An—.24 Southern Reporter, 232.

ARGUMENT.

~ To decide whether this cause contains a federal ques-

tion your Honors would have to decide whether the judg-

ment of the United States Circuit Court, the effect of

Which has been annulled by the State Supreme Court,

was res judicata or not.

’ The cases quoted by the learned counsel for the city of

New Orleans are not applicable.

' This Court has repeatedly decided that where a right

or immunity is set up under and by virtue of a judgment

of a court of the United States and the decision of the

State court is against such right or immunity a case is

presented for removal and review by. writ of error to the

Supreme Court’ of the United States. , a3

‘Mr. Justice Bradley says in Dupasseur vs. Rochereau,

21 Wal. 134:

‘¢ Where a State Court refuses to give effect to the

‘* judgment of a Court of the United States rendered upon

‘the point in dispute, and with jurisdiction of the case

‘* of the parties, a question is undoubtedly raised which,

** under the act of 1867, may be brought to this Court for

‘* revision.

4 The case would be one in which a title or right is

‘* claimed under an authority exercised under the United

‘# States, and the decision is against the title or right set

6é up.

‘* It would thus be a case arising under the laws of the

‘« United States establishing the Circuit Court and vesting

‘* it with jurisdiction; and hence it would be within the

‘* the judicial power of the United States as defined by the

‘* Constitution; and it is clearly within the chart of appel-

‘* late power given to this Court over cases arromng in and

‘*¢ decided by the State courts ’’ (21 Wal. 134).

The same question was decided by this Court in the

case of the Crescent City Live Stock Co. vs. Butchers

Union, 120 U. S. *46. In that case the Court, Mr.

Justice Matthews speaking for the Court, says:

- * Tt is argued by counsel for the defendant in error

‘ that this does not embrace a Federal question; that the

** effect to be given to a judgme«t or decree of tie Circuit

‘* Court of the United States, sitting in Louisiana by the

‘* courts of that Siate, is to be determined by the law of

4

_ ** Louisiana, or by some principle of general law as to

‘‘ which the decision of the State court is final; and that

‘¢ the ruling in question did not deprive the plaintiffs in

‘error of ‘any privilege or immunity specially set up or

‘* claimed under the Constitution or laws of the United

** States.’ But this is an error. The ques ion whether

‘© a State court has given due effect to the judgment of a

‘* court of the United States is a question arising under the

‘* Constitution and laws of the United States, and comes

‘* within the jurisdiction of the Federal courts by proper

** process, although, as was said by this courtin Dupasseur

‘* vs. Rochereau, 21 Wall. 130, 135, ‘No higher sanctity or

‘* effect can be claimed for the judgment of the Circuit

** Court of the United States rendered in sucha case, un-

‘¢ der such circumstances, than-is due to the judgments of

**the State courts in a like case and under simi-

‘(lar circumstances.’ Embry vs. Palmer, 107

“U. S. 3. It may be conceded, then, that the

** judgment and decrees of the Circuit Court of the United

‘* States, sitting in a particular State, in the courts of that

** State, are to be accorded such effect, and such effect

** only, as would be accorded in similar circumstances t)

‘*the judgments and decrees of a State tribuaal of

‘* equal authority. But it is within the jurisdiction of this

** Court to determine, in this case, whether such due

** effect has been given by the Supreme Court.of Louisi-

‘** ana to the decrees of the Circuit Court of the United

** States here drawn in question,”’

This Court through Mr. Justice Shiras, in the case of

Central National Bank vs. Stevens, 169 U. S. 460, an-

nounces the same opinion:

‘Whether due effect has been given by a State Court

‘* to a judgment or decree of a court of the United States

‘** is a federal question within the jurisdiction uf this Court

‘* on a writ of error to the Supreme Court of theState.’’

Central National Bank vs. Stevens, 169 U. S. 460.

5

II.

Counsel for defendant in error next contends that

‘¢when the decision is made on settled pre-existing rules

of general jurisprudence, the case can not be brought to

this Court for review.’’ But the general jurisprudence of

this Court is very much against him. This is too clearly a

federal question to admit of argument.

How are your Honors to decide, for instance whether

the judgment is res judicata not only as to John Klein,

but also as to his privy, Philip Werlein, the plain-

tiff in error, without passing upon the merits of the case?

Fleitas vs. Meraux, 47 An. (La.) 235.

How can you decide that the dismissal of the city’s bill

in chancery enjoining the sale of the property purchased

by the plaintiff in error is a determination of the merits

unless made ‘‘ without prejudice,’’ without passing upon

the merits of the case?

Durant vs. Essex, 7 Wal. 107.

Case vs. Beauregard, 101 U. S. 555.

City Bank vs. Walden, ror U.S. 688.

Fleitas vs. Meraux, 47 An. 241.

The single question for this court to decide in this case

is, does the judgment of the United States Circuit Court

and the marshal’s sale vest the property in controversy in

the plaintiff. The decision of the State court is against

the plaintiff in error, holding the property under the

authority of the judgment of a court of the United States-

Respectfully submitted,

EDWIN T. MERRICK,

Of Counsel.

Supreme Court of the United States,

October Term, 1898.

No. 678.

PHILIP WERLEIN, P.arintirF in ERROR

vs.

THE CITY OF NEW ORLEANS.

In Error to the Supreme Court of Louisiana.

BrikF OF PLAINTIFF IN ERROR.

STATEMENT.

a

Andrew C. Lewis, by an adjudication at a marshal’s

sale, made on August 21st, 1878, in the suit of John Klein

vs. City of New Orleans, No. 7,801 of the docket of the

Circuit Court of the United States for the Eastern District

of Louisiana, purchased the property in contest in this

case, viz:

fy: A certain portion of ground, together with the im-

| provements thereon, situated in the first district of this

city, in the square bounded by Poydras, Perdido, Carroll

and Baronne Streets, and measuring 150 feet, 6 inches front

on Baronne Street, 57 feet, 5 inches front on Perdido Street,

150 feet, 434 inches on Carroll Street, and 57 feet, 5 inches

a.

2

and 1 line on the line nearest Poydras Street; (p. 76) but

subject to the usufruct existing in favor of the New Orleans

& Carrollton Railroad Company. (p. 73.)

‘23 Lewis sold this property" to Edward R. Hogan. No.’

veihber ‘20th, 1878. (p.45.)° seth basi

3. Hogan sold it on February. 8th, 1879, to Bettrand

Adoue. (p. 47.)

4. Bertrand Adoue sold it'to P. and P. P. Werlein.

(p. 48).

(a) On reference to this act (p. 48). the Court will see

that other vendors join in the sale. In fact, Adoue pur-

chased the property for Herman Zuberbier, Mrs. Baker and

Mrs. Blaffer, Mrs. Vogel, Mrs. Adoue, Mrs. Touchemoulin

and Jules E. Schneider.

The act states that at the time of the purchase, the

building stood on said property known as the National

Theatre and belonged to these people (p. 50) who held the

land under a contract with the City of New Orleans (p. 43.)

(6) They also had purchased the usufruct of the New

Orleans & Carrollton Railroad Co. (p. 40).

5. The hetseof P P. Werlein transferred all their in-

terest to Philip Werlein on August 7th, 1886. (p. 52).

6. Philip Werlin, whose name appears in this record

as the plaintiff in error, died on November 6th, 1899, and

his widow, Bettie P. Werlein, has been appointed testa-

mentary executrix of his estate and has been made a party

to this cause. ;

II.

The plaintiff in error, or rather, his representative,

therefore stands in this Court as a subsequent purchaser of

the real estate in contest, from Andrew C. Lewis, who pur-

chased the property from the marshal’s sale in suit No.

7,801, entitled John Klein vs. The City of New Orleans.

There is no question raised in this record at ¢he present

time concerning the validity of John Klein’s judgment.

. — 3

3.

. But when this property was seized by the marshal.jn.

the suit of Klein vs. New Orleans, the City of New Orleans.

on April 20th, 1878, sued out an injunction against the sade in

a suit entitled City of New Orleans vs. John Klein, No.,

8,461 of the docket of the Circuit Court of the United States

for the Eastern District of Louisiana (pp. 55, 56 and 57.)

The city’s grounds of complaint were: —

That Klein had caused his judgment to be registered

in the office of the administrator of public accounts accorde

ing to the provisions of Act 5 of 1870, extra session, and that

said act prohibited the issuance of a fiert Sacias upon a

judgment so registered;

That Klein was no longer the owner of said judgment

but had sold the same to the firm of Lessassier & Binder

And that the writ was for a larger sum than the bal-

ance due on said judgment. .

This case was heard on the city’s application for an

injunction pendente lite and the restraining order and pre-

liminary injunction issued April 25th, 1878.

Motion to dissolve the injunction was made and on

June 19th, 1878, the cause was tried and submitted on the

bilf, amswers atid exhibits, and the following decree was

rendered:

City or NEw ORLEANS

vs. No. 8,461.

JoHN KLIEN.

This cause came on to be heard at the present term.

On consideration thereof it is ordered, adjudged and |

decreed that the interlocutory injunction be dissolved, and

injunction refused, and complainant’s bill of complaint

dismissed with costs.

June 19th, 1878.

(Signed) Epwarp C. BILiincs, /udge. —

The property in question was then advertised and sold

by the marshal, as I have stated, under Klein’s judgment.

WT

4

and bought in by Andrew C. Lewis, the author of plaintiff

in error, as I have stated, on August 21st, 1878.

More than sixteen and a half years after this sale and

nearly seventeen years after the adverse decision of the

United States Circuit Court in the suit of the City of New

Orleans vs. John Klein, No. 8,461, and after more than six-

teen years of peaceful possession, and after receiving taxes

thereon for this period, the City of New Orleans filed the

present suit in the Civil District Court for the Parish of

Orleans, claiming that the sale by the United States Mar-

shal to Andrew C. Lewis was “‘absolutely null and void,

and that no title or right whatever in or to said property

passed by said sale to AndrewC. Lewis or to the defendant

herein, who claims through mesne (s/c) conveyances from

Andrew C. Lewis,” and alleging that the property was

dedicated to public use and unsusceptible of alienation or

of private ownership or of private possession, and that

Werlein’s possession was illegal and in bad faith.

The City of New Orleans claimed also in said petition

that it was invested by the law with administration and pos-

session of property for the public benefit. (pp. 1 and 2).

To this petition the plaintiff in error excepted that the

judgment in the suit of Klein vs. The City of New Orleans

No. 7,801 of the Circuit Court of the United States, and the

judgment rendered in the injunction of the City of New

Orleans vs. John Klein, No. 8,461 of the docket of the

United States Circuit Court, constituted res judicata and

that the sale thereunder was valid and binding on the city.

(pp. 3 and 4). :

And in case the exceptions and plea of res judicata

should be overruled the plaintiff in error answered and

pleaded estoppel on the part of the City by the suits pleaded

as res judicata, and also in assessing the property to him

and collecting taxes, etc. (For the answer of plaintiff in

error, see pages 4, 5 and 6).

. —

5

The exception and plea of res judicata was argued and

submitted to the Court and was overruled. (P. 6).

The City of New Orleans, on June 27th, 1895, filed a

supplemental and amended petition, in which it attempted

to plead a judgment of the Supreme Court of the State as

res judicata against Philip Werlein.

This amendment was met by an exception that it

changed the issue—the original suit being an alleged dedi-

cation and not on a judgment. ‘

This exception was sustained and the City’s amended

and supplemental petition was dismissed (p. 12) under the

settled jurisprudence of Louisiana. 7 An. 334, Deniston

vs. Payne.

The case was tried on the merits and from an adverse

decision Philip Werlein appealed to the Supreme Court of

Louisiana and the judgment of the court @ gua sued out a

writ of error to this Court.

The evidence shows that the property in question was

always used by the City for private purposes and never as

a public place or square for which purpose the City claimed

it was dedicated.

A suit was brought in 1841 againstthe New Orleans &

Carrollton railroad, to whom the property was leased, the

judgment in which was attempted pleaded as res judicata

by the City of New Orleans as already stated, and in the

very judgment referred to the lease of the property to the

railroad company was recognized.

I} was afterwards leased to Magdalen Clausen in 1864,

and in 1866 the railroad company sold its entire interest

described as a right of occupany, to Christian Schneider

and others, which sale was made subject to the Clausen

lease.

The purchasers 4uc/t a theatre on the property and in

May, 1867, entered into a contract with the city, whereby

the latter agreed to purchase the building at the expiration

of the right of occupancy.

6

Errors ASSIGNED.

The errors assigned are, I do not give them in the

order in which they appear in the transcript (pp. 128 to

134), substantially as follows:

First.

That, as plaintiff in error constitutionally holds title

to the property in controversy by virtue of a judgment,

execution and marshal’s sale in the suit of John Klein vs.

New Orleans, No. 7,801 of the Circuit Court of the United

States, and as the City of New Orleans had enjoined the

sale of the proprty in the same Court in suit entitled City

of New Orleans vs. John Klein, No. 8,461, and as said in-

junction suit was on final hearing decreed to be dismissed,

and as said judgments have never been appealed from nor

reversed nor annulled by any action brought to annul said

judgments, that both and each of said judgments were

entitled to the force and effect of res judicata under the

constitution and laws of the United States, and that the

lower State court erred against the constitution and laws of

the United States in refusing to recognize the title of

plaintiff in error to said property under said judgments.

SECOND.

That plaintiff in error and his authors legally hold

said title to said property under the two judgments already

mentioned of the Circuit Courts of the United States and

marshal’s deed aforesaid, which property never had been

used for anything but private purposes; that the City of

New Orleans left the plaintiff in error in undisturbed and

recognized possession of said property, assessing the same

in the name of plaintiff in error and his authors, and ad-

mitted in judicial proceedings the ownership of plaintiff in

error, the Court erred in violation of the Constitution of the

United States in not holding the City of New Orleans

estopped by its said acts from contesting his title.

.

es

THIRD.

That the lower court erred in violation of the constitu-

tion and laws of the United States and against the authority

of the Courts of the United States in rejecting, on the trial

of the plea of res judicata and estoppel, the evidence of

title of plaintiff in error consisting of the suits, and pro-

ceedings had in the United States Circuit Court, entitled

John Klein vs. City of New Orleans, No. 7,801, and City

of New Orleans vs. John Klein, No. 8,461, of the docket of

said Court, and the marshal’s deed, and the transfer

through the various owners to the plaintiff in error.

FourtH.

That the lower court erred in violation of the Constitu-

tion and laws of the United States in rejecting, on the trial

of the plea of estoppel in this cause, the exemplifications of

the suits of John Klein vs. City of New Orleans, and City

of New Orleans vs. John Klein, Nos. 7,801 and 8461, re-

spectively ot the docket of the Circuit Court of the United

States for the Fifth Court and Eastern District of Louisi-

ana, and the different deeds from and including the deed of

the United States Marshal, in suit No. 7801 of the docket

of said Circuit Court, down to and inclusive of the evi-

dences of title of plaintiff in error.

Points oF Fact or Law.

I.

The plaintiff in error holds the real estate in question

by virtue of the two judgments referred to, viz:

The judgment of the United States Circuit Court for

the Eastern District of Louisiana, in the cause entitled

John Klein vs. the City of New Orleans, No. 7,801, and the

judgment of the Circuit Court of the United States in the

chancery suit entitled New Orleans against John Klein, in

which a preliminary injunction was sued out by the City

of New Orleans fo prevent the sale of this property, was

on final hearing dismissed.

8

These two judgments have never been appealed from,

and no action of nullity has ever been brought to set them

aside.

The effect of the dismissal of the city’s injunction suit

was to permit the sale of the property enjoined to proceed.

The United States Marshal acting under the authority

of the federal tribunals, sold the property to the authors of

the plaintiff in error and delivered them possession.

Sixteen years afterwards, the same plaintiff sues for

possession of the property without paying any regard to

the two judgments of the United States Circuit Court, and

gets it if the judgments of the lower Court is to remain.

The city has not shown that any greater rights have

accrued to it since its first suit. Nor has it shown that its

circumstances have changed. If, as alleged in its second

suit, it issuing as the administrator for the public benefit

in 1895; there is not a syllable in the record to show that

the city sued or had th: right to sue in any other capacity

in 1878!

In fact, the bill ofcomplaint in the suit of the City of

New Orleans vs. John Klein, No. 8,461 of the docket of the

United States Circuit Court, does not allege whether the

city sued as owner or as manager of the property for the

public benefit, but is that a presumption that the city did

not sue in the only capacity in which she had the right to

sue in 1878?

Il.

I cannot bring myself to the conclusion that the City

of New Orleans can now entirely disregard the # fa and

sale thereunder of its property in Klein vs. New Orleans—

or the legal effect of the dismissal of its bill to enjoin that

sale.

There is no question that the decisions in the two

cases referred to apply as res judicata and estoppel as well

to the plaintiff in error, the executrix of Philip Werlein,

—

9

deceased, as to John Klein or A. C. Lewis, the original

purchaser.

The final judgment of a court of competent jurisdiction

is res judicata between the parties, their privies, assigus

and ayantes causes.”

47 La. An. 232, Fleitas, Wife vs. Moraux.

3 La. An. 230, Delabigarre vs. Second Municipality.

8 La. An. 126, Johnson vs. Weld.

34 La. An. 814, Heroman vs. Louisiana Institute.

46 La. An. 1098, McNeely vs. Hyde.

43 La. An. 924, Broussard vs Broussard.

169 U. S. 248, Dull vs. Blackman.

167 U. S. 398, New Orleans vs. Citizens Bank.

Ill.

It will, I think, hardly be questioned that the decree

rendered on the merits in the suit of the City of New Or-

leans vs. John Klein, in suit 8,461 dismissing the city’s bill

of complaint, was a final judgment.

This Court says in 101 U. S. 556, ‘‘we decided that the

decree, absolute in its terms, dismissing the bill.on the

merits, was a final determination of the controversy, and

constituted a bar to any further litigation of the same sub-

ject between the same parties.”

101 U. S. 556, Durant vs. Essex.

In another case in the same volume, Mr. Justice Strong.

says, speaking of a similar decree: |

‘‘Thus it appears the bill exhibited all that was neces-.

sary to give to the Court, sitting as a Court of equity, com-

plete jurisdiction over the subject of the controversy between

the parties, and all the equities now asserted by the com-

plainant in his present suit. It must, therefore, be held

that the decree dismissing that bill determined the equities

of the case. And this must be so, whether the reasons for

the dismissal were sound or not. We regarded the case

and treated it as requiring an adjudication upon the com-

10

plainant’s equity to be paid out of the property in the hands

of the railroad company. Nothing that can now be done

in another suit can take away the legal effect of the decree.

Even were we of opinion /hat the case wus erroneously de-

cided, it would still be res judicata, a bar to the complain-

ants, a protection to the defendants. It would be idle,

therefore, to reconsider the question whether the bank has

a lien upon the property he seeks to charge, or whether

there had been a trust in the bank’s’ favor.”

101 U. S. 692, Case vs. Beauregard.

‘‘A decree dismissing a bill in an equity suit in the

Circuit Court of the United States, which is absolute in its

terms, unless made upon some ground which does not go to

the merits, is a final determination of the controversy, and

constitutes a bar to any further litigation of the same sub-

ject between the same parties.”

7 Wal. 107, Durant vs. Essex Co.

“Dismissing a bill is a determination of the merits

unless made ‘‘without prejudice.”

Story’s Equity Pleading.

47 A. 241, Fleitas, Wife, vs. Mereaux.

1 A. 46, City Bank of New Orleans vs. Walden.

IV.

It cannot be disputed that the sale being allowed to pro-

ceed and the city’s injunction dismissed, the property was

legally sold. Not only what was set up by the city to stop

the sale, but every question that might have been set up

was concluded by the decree.

‘There are many general expressions in the books to

the effect that the judgment of the court of competent juris-

diction is final and conclusive upon the parties, not only as

to the matter actually determined, but as to every other

matter which the parties might have litigated in the cause

and might have had determined.”

Black on Judgments, Sec. 731.

. a

11

luterest reipublicae finis litium sit. After one determi-

nation of a suit on the merits, the controversy cannot be re-

opened to hear an additional reason which before existed

and was within the knowledge of the party in support of

the same cause of action.

As Mr. Justice Field says in Davis vs. Brown:

‘‘So far as the demand involved in the action is con-

cerned, the judgment has closed all controversy. Its val-

idity is no longer open to contestation, whatever might

have been said or proved at the trial for or against it.

‘The judgment is not only conclusive as to what was

actually determined respecting such demand, but as to every

matter which might have been brought forward and determined

respecting it; and this is all that the languge means which

is quoted by counsel from opinions in adjudged cases in

seeming consonance with his opinion.”

94 U. S. 428, Davis vs. Brown.

Mr. Chief Justice Waite announces the same principle

in the case of Stout vs. Lye, speaking of the effect of a

judgment.

‘That was a judgment on the merits of the identical

matter now in question and it concluded the ‘‘parties and

those in privity with them, not only as to every matter

which was offered and received to sustain or defeat the

claim or demand, but as to every other additional matter

which might have been offered for that purpose. Cromwell

vs. County of Sac, 94 U.S. 351, 352. It is true the mort-

gagor did not set up as a defense that the bank had no

right to take up the mortgage, or that he was entitled to

certain credits because of payments of usurious interest,

but he wasat liberty todoso. Not having done so he is con-

cluded as to all such defences and so are his privies. 103

U. S. 71, Stout vs. Lye. (The italics are those of the

writer, as are nearly all the italics in quotation in this

brief).

12

A party cannot bring suit upoti a certain state of facts

and ‘‘after dismissal of his action bring another suit against

the same party upon the same state of facts upon a different

theory. The judgment in the first action is a complete

estoppel in favor the successful party upon the same state

of facts.”

171 U. S. 209, Hubbell vs. United States.

The foregoing language was applied by Mr. Justice

Brown to patent cases, but I can see no reason why it

is not equally applicable to any other judgment.

The City of New Orleans ‘an no more attempt to

recover now on a different theory than any other litigant.

The object of the first suit was to stop the sale of cer-

tain property which the city claimed an interest in stopping.

The object of the second suit is to recover the sold

property, and the city has now only the same right that

she then had namely that of the proper person to look after

the interests of the public. ,

The contest is about the identical lot of ground and

the opinion of this Court in the case of the Last Chance

Mining Company vs. Tyler Mining Company, 157 U. S.

683, quoted by Mr. Justice White, in New Orleans vs.

Citizens’ Bank, does not seem out of place here:

‘‘The law in respect to estoppel by judgment is well

settled and the only difficulty lies in the application of the

law to the facts.”

‘‘The particular matter in controversy in the adverse

suit was the ¢riangular piece of ground which is not the mat-

ter in dispute im this action.”

‘‘The judgment in that case is therefore not conclusive

in this as to matters which might have been decided, but

only to matters which were in fact decided. Hopkins vs.

Lee, 6 Wheat. 109; Smith vs. Kernochen, 7 How. 198; Pen-

nington vs. Gibson, 16 How. 65; Stockton vs. Ford, 18 How.

418; Washington &c. Steam Packet Co. vs. Sickles, 24 How.

13

333; S. C. 5 Wall. 580; Lessee of Parish, vs. Ferris, 2 Black

606; Cremwell vs. County of Sack, 94 U.S. 351; Davis vs.

Brown, 94 U.S. 423; Russell vs. Place, 94 U.S. 606; Camp-

bell vs. Rankin, 99 U.S. 261; Lumber Co. vs. Buchtel, 101

U. S. 638; Stout vs. Lye, 103 U. S. 66; Nesbit vs. Riverside

Indepordent District, 144 U. S. 610; Johnson Co, vs. Whar-

ton, 152 U. S. 252°”

‘‘And the law of Louisiana is exactly in accord with

the rulings of this Court, for as said by the Supreme Court

of Louisiana in Heroman et al. vs. Louistana Institute of”

Deaf and Dumb et al., 34 La. An. 805, 814:

‘‘No principle of law is more inflexible than that which

fixes the absolute conclusiveness of such a judgment upon

the parties and their privies. Whether the reasons upon

which it was based were sound or not and even if no

reasons at all were given the judgment imports absolute

verity, and the parties are forever estopped from disputing

its correctness. Cooley on Const. Lim., p. 47 ef seg. and

the authorities there cited.”

‘‘Matters once determined in a court of competent jur-

isdiction may never again be called in question by parties

or privies against objection, though the judgment may have

been erroneous and liable to, and certain of, reversal in a

higher court.”

Bigelow Estoppel, 3rd. edition, outline, pp. ixi, 29, 57,

103.

‘*The estoppel extends to every material allegation or

stateme:+, which having been made on one side and denied

on the other, was at issue in the cause, and was determined

therein. Aurora vs. West, 7 Wall, 102; 4 N. Y. 113; 2 (La.)

An. 462; 14 (La.) A. 576; 19 L. 318; 5.N. S. 664; 11M.

607; 14 L. 233; 5 N. S. 170.”

V. 5

From reading the foregoing authorities one would

naturally believe, that in order to constitute ves judicata, it

es

14

will suffice that the parties be the same and the object of

the action the same.

The Civil Code of Louisiana, 2286, says:

‘*The authority of the thing adjudged takes place only

with respect to what was the object of the judgment.”

‘*The thing demanded must be the same; the demand

must be founded on the same cause of action; the demand

must be between the same parties and formed by them

against each other in the same quality.”

1. The object of the first suit of the City of New Or-

leans was to prevent the sale of the property in question

under a judgment of the United States Circuit Court. In

the second suit to recover the same property although sold.

2. The cause of action in both suits was the alleged

right of the city to protect that property.

3. The demand in first suit was between the City of

New Orleans and John Klein. The demand in second suit

is between the City of New Orleans and Klein’s privies.

The character of the action or the ‘‘demand” must

always be determined by the prayer of the bill.

1 Rob. (La.) 110, Hood vs. Segrest.

‘In order to determine the character of an action, re-

sort must be had to the prayer in the petition for a judg-

ment.”

20 (La.) An. 170, Edwards vs. Buller.

Great stress has been laid by our adversaries upon

that portion of Article 2286 which says the cause of action

must be same.

Our adversaries say that in the first suit, the city sued

as owner to prevent the sale, and in the second suit it claims

as the proper person to control and administer the prop-

erty.

We say that if the second position of the city is a correct

one, that there is not one word in the bill for injunction

in 1878 to show that the city was not then suing in the

~~

15

same capacity. The city must have stood in judgment,

then defending the only rights it had which are the same

now as when the first suit was filed.

As to the expression ‘‘cause of action,” we must not

confuse it with the ground or means of action.

‘Tl ne faut pas confondre la cause de la demande avec

les moyens de la prouver. Cette confusion serait un grand

erreur. Que faut il donc entendre par la cause de la

demande, causa petendi. Car le mot est un peu vague.

Il importe beaucoup d’en déterminer le sens precis. C'est,

dit Neratius, la cause prochaine de laction, causa proxima

actionis et non pas l’espéce ou le genre d’action, qu’un

plaideur choisit pour demander en justice la chose qu'il

reclame; car deux actions differentes peuvent avoir la méme

caus; la méme cause peut produire plusieurs actions. Si

la chose demandée EST LA MEME, la seconde action qguoique

differente de la premitre doit donc étre repoussée par lecept-

ton de la chose jugée. 10 Toul. n. 161.

_ This authority is quoted favorably in 19 La. 326, Pli-

que & Lebau vs. Perret e¢ al.

Zachariae defines what is meant by the same cause of

action even better than Toullier:

‘‘Deux demandes doivent ¢tre considérée comme fondée

sur la méme cause, bien qu’d l’appui de la seconde ou pre-

sente un moyen nouveau, pris d'une lot dont on avail negligé

@invogner les dispositions lors de la premiere, ou que l’on

offre la preuve de faits qu’on n’avait pas d’abord articulés.”’

3 Zach. §769.

And in a note to the same action the learned author

quotes:

“Tl ne peut évidement ¢tre permis de recommencer un

proces sur le simple pretexte de nouveaux moyens, soit de

fait, soit de droit. Autrement les décisions judiciares

n’aurait jamais qu’un caractére provisoire. Req. rej., 16

juillet, 1817, Sir., XVIII; Req. rej., 14 janvier, 1839, Sir.,

16

XXXIX, 1, 119. Voy. aussi Req. rej., 24 fevrier, 1835, Sir.,

XXXV, 1, 179.”

We find this principle declared and applied by the

Supreme Court of Louisiana in 40 La. An. 646. The Court

said:

“It is too obvious to admit of serious discussign that

this judgment absolutely and finally settied as between the

Chaffes and Ludeling, the right of the former to require

Ludeling to pay off their mortgage debt or to sell the land

for the satisfaction thereof. Ludeling has had his day in

Court on this issue and was bound to urge all his defenses,

and his mouth is closed as to all matters antecedent to the

judgment which he urged, or might have urged against its

rendition.

‘‘In his present petition for injunction, he sets up a

multitude of matters, which were either pleaded, or mighi

have been pleaded as grounds for denying or qualifying the

above absolute judgment, as to all of which the Judge «

guo suitained the plea of res judicata; and we consider his

ruling to be clearly correct.”

The Court of Appeals of New York said in the case of

Griffin vs. Long [sland Railroad Co.,102N. Y., 452.

‘The rule is well settled that a former judgment of a

Court of competent jurisdiction is final and conclusive be-

tween the parties, not only as to the matter actually deter-

mined, but as to every other matter which the parties

might have litigated, and have decided as incident to or

essentially connected with the subject matter of the litiga-

tion within the purview of the original action, either as a

matter of claim or defense.”

In 22 Wisconsin, 316, Danaher vs. Prentiss, the Court

said:

‘*The rule to be derived from these cases is that the

decision of a court of competent jurisdiction, being res

judicata, is not only conclusive and binding on all other

ea :

17

courts of concurrent jurisdiction as to the subject matter

thereby determined, but also as toevery other matter which

the parties might litigate in the case and which they might

have decided.”

In 45 Ind. 493, Bates vs. Spooner, the Court said:

‘‘Whenever a matter is adjudicated and finally deter-

mined by a competent tribunal, it is considered as forever

at rest.”

‘*This is a principle upon which the repose oi society

materially depends, and it therefore prevails, with very

few exceptions, throughout the civilized world.”

‘The principle not only embraces what was actually

determined, but also extends to every other matter which

the parties might have litigated on the case.”

VI.

The object of the first suit of the City of New Orleans

was to prevent the sale of the property. But the property

was sold under the judgment of the courts of the United

States.

Under the faith and credit of those judgments the

plaintiff in error hold his title.

Are these judgments to be treated as absolute nullities

and thus attack collaterally?

As our Court through the late Judge Miller recently

said of the effect judgments of the U. S. Courts:

‘‘Besides the jurisdiction to annul judgments conferred

by the Code of Practice has no kind of application to the

Federal Courts deriving their jurisdiction from the Consti-

tution of the United States.

‘Dupuy vs. Bemiss, 2 (Lia.) An. 509; Stockion vs. Stan-

brough, 3 (La.) An. 390;” * * * , 47 (La.) An. 240;

Fletias, Wife, vs. Mereaux.

In the instant case, the sale had been made.

This property had been sold and transferred according

to the judgments of the Circuit Court and whatever advant-

18

age though imprescriptibility might have been then urged

to prevent the sale of property dedicated to public use, I

submit it is now useless, to invoke to annul judgment

regular upon its face in every respect and a valid sale there-

under.

In the Fleitas case 47 (La.) An. 240), is also the follow-

ing significant language:

‘‘There was also the writ of seizure and sale obtained

by Richardson from the United States Court. Thus, the

Court was clothed by the removed suit and the seizure and

sale it decreed with jurisdiction of the controversy with

respect to Mrs. Fleitas’ rights under her mortgage judg-

ment and title, and as to Richardson’s rights under his

mortgage. The jurisdiction was complete as to subject

matter and as to the parties.

It is supposed the federal Courts could not pass on any

right of Mrs. Fleitas against her husband and his property

for restitution of her funds conferred by the laws of

Louisiana.

‘The answer is, the federal Courts are authorized to

determine questions of that nature; that is, to determine

the question as to any right c'aimed under the laws of the

United States, even where that right is supposed to conflict

with State legislation.”

VIL.

The idea that the two judgments of the Circuit Courts

could be thus ignored, is utterly repugnant to the jurispru-

dence of Louisiana.

This is shown by analogous cases. For instance it is

a well settled principle of our law ‘hat no man will be per-

mitted to injoin a judgment for a ground which he might

have urged as a defence to the suit.

The reason of this principle is that the judgment is

res judicata for every thing which might have been urged

in the case.

rr

19

‘‘A judgment debtor against whom a final judgment

has been rendered cannot enjoin the execution of the judg-

ment on the ground that the mortgage on which the judg-

ment was based had perempted before the judgment was

rendered. As to him the judgment is ves judicata.” 30

(La.) An. 1238, Haynes vs. O’Neil.

‘*Matters that could have been urged by way of defense,

on the original trial of a case, and on appeal from the

judgment in the case, afford no grounds for injoining the

execution of that judgment.”

30 (La.) An. 441, O’Connor et al. vs. Sheriff.

See. also 13 (La.) An. 111, Sartorius vs. Dawson.

25 (La.) An. 538, Naughton vs. Drinkgrave et al.

In 26 (La.) An. 34, the Court says:

‘There is no principle better settled than that a party

is not allowed to arrest an execution on grounds that he

might have set up in his original suit.”

‘‘Here the party taking the injunction, not only might

have set up in the original suit that the Accommodation

Bank was not legally incorporated, but did doit. Hence,

it is ves judicata.” 26 (La.) An. 34, Mahan vs. Accommoda-

tion Bank.

Again:

‘‘An injunction will not lie, to stay the execution of a

of a judgment for the amount of a note given for the price

of a tract of land, on the allegation that, since the render-

ing of the judgment, plaintiff has discovered that the de- ~

fendant, his vendor, had no title to the land.”

‘‘The execution can only be restricted by appeal, or

action of nullity or on an allegation of extinguishment by

payment, release, confusion, novation or other legal mode.”

3 R. 273, Morrison vs. Crooks.

Vill.

There is another rule of Louisiana practice which for-

bids a party bringing a second injunction on any ground

whatever after the first injunction has been dissolved.

20

This is because the dismissal of the first injunction was

res judicata. —-

If the City could not have brought a second injunction

suit against Klein, how is it she can now bring a suit and

take back the property without even annulling the judg-

ments under which its title is sheltered.

! The rule that second injunction will not issue after the

dismissal of a previous injunction is well settled by Judge

Illsley in the case of State vs. Judge of Second Judicial

District Court, where many different causes of action were

setup to use my adversaries mode of expressions, where h¢

says:

‘All those objections, if available, were pleadable in

the first injunction suit, and being, in the contemplation of

law disposed of in the first injunction cannot be set up as

grounds in a second injunction, whereby injunction for

those alleged causes was unprovidently and illegally

granted by the Judge of the lower court.”

20 (La.) An. 522.

And the Court says further: 20 (La.) An. 523).

‘‘All impediments existing when the first injunction

was granted were removed by the dissolution of that in-

junction and the order and writ of seizure and sale were

thereby restored to their pristine efficiency, as a necessary

logical consequence of the dissolution.”

. ‘“The decree of thisCourt which affirmed the judgmen:

dissolving the injunction, cannot be arrested for any of the

grounds existing and pleadable when it was granted.”

20 La. An. 523, State vs. Judge Second Judicial District

Court.

If the City of New Orleans who injoined in 1878 under

the only title it then possessed or ever possessed, and if it

was judicially estopped by the judgment -dismissing its

injunction, it could not procure another injunction.

» al

21

How then can it actually recover property of which it

has been judicially divested.

How can the City disregard the force and effect of a

decree of court and a judgment and sale thereunder? The

City of New Orleans whose rights were the same in 1878 as

it now claims they are now absolutely disregard the judg-

ments of the Court and the judicial sale of the property,

and as is attempting to take away from the legal owner as

if he were a mere trespasser.

Our adversaries appear to think that a judgment con-

trary to a rule of public order is not res judicata, and that

therefore a dedication to public use cannot be divested.

This point is disposed of by the decision of Mr. Justice

White, then a Judge of the Supreme Court of Louisiana,

in 31 (La.) An. 212, Succession of Lebrew. The syllabus

reads:

“The binding effect of res adjudicata cannot be im-

paired by the fact that the thing established by it involves

a question of public order, and is afterwards found to be

wholly untrue.”

‘‘The presumption that the thing adjudged is true, is

so conclusive, no subsequent discovery can disturb it.”

And in the body of the decision, 31 (La.) An. 214, Mr.

Justice White, speaking of the contention that there can be

no res judicata against a rule of public order, quotes the

following passage from Demolombe:

‘*‘But it may be contended in case of a nullity founded

on public order, which a defendant could not renounce, he

can consequently urge it in a second suit, although not pre-

sented in the first. We reply that the distinction is inad-

missible.” * * * ‘Because’it is contrary to every

principle. What! When a pleader has defended himself by

22°

every means, or even when he has been condemned by de-

fault will it be said that the law will presume that he has

failed to present his defenses? Certainly not. That which

it presumes is that these defenses do not exist.”

31 (La.) An. 214, Succession of Lebrew.

Respectfully submitted,

By EDWIN T. MERRICK,

Of Counsel.

Supreme Court of the alnited States.

OCTOBER TERM, 1899.

No. 189.

PHILIP WERLEIN, Priaintirr 1x Error,

US.

CITY OF NEW ORLEANS, Derenpant In Error.

Brief for Plaintiff in Error in Reply.

PE heute ES Se Oye

I.

My adversary, in his zeal for the interest of New Orleans,

overlooks or misunderstands the position of the plaintiff in

error entirely.

I do not admit that the question of dedication to public

use was not raised in the injunction suit brought by the city

in the cireuit court of the United States to prevent the sale

and actual transfer of title to the property in question in

this case.

On the contrary, the title to the property—the ownership

of the property—being in question in that case, the question

9

of dedication to public use was necessarily decided when

the injunction was dismissed without reservation.

In other words, the City of New Orleans has not shown

and cannot show that the rights which it claims to possess

are any different from those it possessed twenty-two years

ago, when it attempted to prevent the transfer of ownership

of this property by the marshal’s sale.

The statement of my adversary, “It is admitted by coun-

sel for plaintiff in error that the question of dedication to

public use,” is not correct. That question certainly was

incidental to ownership of the property, and I will show

the court that under the law of Louisiana something more

was in contest than the mere prevention of the marshal

from selling the city’s individual interest, as my adversary

would express it.

Il.

But we do not admit that as a fact the property was dedi-

cated to public use. We only say that if it was dedicated to

public use the ownership vested in the plaintiff in error just

the same.

Stress is laid on the fact that the writ of fi. fa. seizes “ all

the right, title, and interest of the City of New Orleans,” and

that the writ does not seize the improvemeuts and property

itself.

My adversary neglects to inform this court that this is a

proper form of making a seizure in Louisiana :

“The seizure of all the right, title, and interest of the debtor

in and to the thing seized is a sufficient seizure of the thing

itself.”

11 A., 705, Davis vs. Carroll.

“Where a sheriff seizes, advertises for sale, and sells ” all

the right, title, and interest of the debtor in a lot of ground

owned by him, but which was encumbered with mort-

3

gages, it must be considered as a seizure and sale of the

property itself and not of the contingent rights of the debtor

to so much of the property as may remain after the mort -

gages are satisfied.

1 A. (La.), 426, Trudeau et al. vs. Mc Vicar.

Ill.

Asa matter of fact, there is no good and sufficient proof

in this record that the property in question was dedicated

to public use.

The testimony shows that sixty-six years ago the boys

used to shoot snipe on the so-called public square; that it

was a goose pond (R., 12 and 13); that it was used also, in

1837, by arailroad company (R., 13); that afterwards it was

used for a German theater (R., 15).

That at one period, shortly after 1835, a drug store was

there (R., 17); at another time, a church (R., 19, and map,

R., 81).

Even had some sort of dedication to public use actually

been carried out, which is denied, our jaw is not so rigorous

as our adversary contends.

Our supreme court has held that the abandonment of a

public road for more than thirty years, during which time

the possession of individuals has been undisturbed, prevents

further subjection to public use.

3 A., 482, —— et al. vs. Arnault et al.

In this case, as stated in my original brief, the city has

collected thousands of dollars for taxes (R., 91) from plain-

tiff in error and his authors, and so has the State (R., 90),

and the city, when it served its convenience to do so, has

pleaded estoppel against the plaintiff in error wheu he dis-

puted the amount of an assessment (R., 32).

4

There is no justice nor honor in the position now assumed

by the city, and the question now submitted to this court

is whether it will give force and effect to the judgments of

its subordinate courts which stand today unappealed from,

not annulled by any direct action.

Respectfully submitted.

Epwin T. Merrick,

Of Counsel.