3 Teiss. 184

Armbruster v. Behan

Decided February 19, 1906

Louisiana Court of Appeal · decided 1906-02-19

1. In a third opposition to a seizure of property based upon the alleged ownership of said property, the issue to be tried between the third opponent and the party provoking the seizure is the fact of ownership. The third opponent stands in the attitude of a plaintiff, and is bound to administer proof of his opposition. But he cannot enquire into the validity of the proceedings between the plaintiff and defendants in original suit, or question the regularity of the seizure. His position is that of a plaintiff in a petitory action and he can recover only in the strength of his own title and not on the weakness of his adversaries. 12 A. 341; 8 N. S. 661; 15 A. 136; 1 R. 41. 2. Where a forfeiture of specific articles is imposed by\a criminal statute as one of the punishments to be inflicted upon conviction of a person for a crime or offense, and the Court before which the’ personal offender is tried, convicted and sentenced, fails, omits or refuses to include in the sentence the forfeiture, no divestiture of title of the specific things results. 3. Where forfeiture is imposed by a statute as a punishment for crimes or offenses it can only be adjudged and enforced by a criminal proceeding, unless a different mode of procedure be expressly provided for. 4. Where a thing whereof there is an owner passes into a situation antagonistic to the law he may lose his ownership in it, whether personally guilty of crime or not, because the thing has offended. The punishment, if such it be called, falls on the thing and does not visit the owner’s person. Though he lose it, and it lapses to another, or the State, the loss is not in the nature of a penalty for personal crime, hence the proceedings to obtain judicial condemnation is necessarily civil. 5. But where the' forfeiture of specific articles is embraced in a criminal statute as a punishment for a crime committed by a person and depending upon conviction in personam, the forfeiture is then of a specie of fine and rests upon the same principle, as a sentence to pay a sum of money. The proceedings then is necessarily criminal and the forfeiture can, therefore, be declared only by a Court of competent criminal jurisdiction and as part of _ the sentence after conviction. Bishop New Criminal Law, Sections 816 and 944; Markham vs. Cole, 2 L. 585; State vs. Williams, 7 R. 252; State vs. Manestero, 4 A. 380; State vs. White, 13 A. 513; State vs. Robbins, 24 N. E. Rep’s 978; Green vs. Briggs, 1 Curtis 311; TT. S. vs. Three Tons of Coal, 6 Biss 379; Boyd vs. U. S., 116 TJ. S. §16; State vs. Smith, 2 Terg. 272; Vowells vs. Commohwealth, 8 Ky. Law Rep. 74; Williamson vs. Cooke, 44 Miss. 367; Fisher vs. McGerr, 1 Gray (Mass.) 616; Boyles vs. Lynae, 1 Root, (con.) 195. 6. The meaning of the word forfeit has to he determined by the connection in which it is used. When used in Civil proceedings and in connection with the enforcement of Civil rights it contemplates an ordinary Civil judgment which need not even be penal in its character; but when used in a criminal law it denotes a punishment for a statutory crime-and contemplates a criminal judgment or sentence. 7. When forfeiture is imposed-by a statute as a punishment for a statutory offense there is no substantial difference between it and a fine. A fine is a pecuniary punishment for an offense and a pecuniary punishment called a forfeit is equivalent to the same pecuniary punishment called a fine. 8. There can be no such thing as a statutory forfeiture without judicial sentence. This is an elementary principle and a constitutional gaurantee. Cooley on Com. Lim. 362; TJ. S. vs. Fifty-six Barrels of Whiskey; 1 Abbot (TJ. S.) 92; TJ. S.'vs. Stowell, 133 TJ. S. 1; TJ. S. vs. One Copper Still, 8 Bliss 270; TJ. S. vs. Brig Neuro, 19 How. 92; The Calidonia, 4 Wheat 100; The Thomas Gibbons, 8 Cranch 121; Gibson vs. Hoyt, 3 Wheat 354; TJ. S. vs. Brig Mars, 8 Cranch 41; TJ. S. vs. Nineteen Hundred and Sixty Bags of Coffee, 8 Cranch 398; Caldwell vs. TJ. S., 8 How. 381; Thalcher vs. TJ. S., 103 TJ. S. 685; Henderson’s Distilled Spirits, 14 Wall 56; Gear vs. Bullock, 34 Ill. 94; Fire Department of New York vs. Kip, 10 Wend. (N. Y.) 266; Williamson vs. Cook, 44 Miss. 367. 9. No person by his misconduct can so forfeit a right that it may be taken from him without judicial proceeding in which the forfeiture shall be declared in due form. 10. Judgment is the consummation of the proceedings that the law requires to be instituted to ascertain the fact of forfeiture. 11. Where a forfeiture of property for the violation of law is made absolute by statute, the decree of condemnation, when entered, relates back to the time of the commission of the wrongful act. The title to the beneficiary is not consummated, however, until after judicial pronouncement, but the right to them relates backwards to the time the offense was committed so as to avoid all intermediate sales and incumbrances between the commission of the offense and the condemnation. 12. Act No. 12 of 1870, entitled “an act to repeal the thirteenth paragraph of Section 3 or an act entitled, ‘an act to provide a revenue for the support of the State Government of Louisiana, and the manner of collecting same,’ approved March 1869,” to define and prohibit gaming and provide penalties therefor, and which provides as the several punishments to be inflicted, on conviction, of any person violating same, a fine and a term of imprisonment and a forfeiture of specific articles used and employed in the game, is a criminal statute. 13. Forfeiture under this act no more follows, proprio vigore, the mere conviction, then do the other punishments imposed by the satute. 14. The forfeiture, like the fine and the imprisonment, to be effective and to operate against the convicted person, must he pronounced in the sentence, upon conviction of the accused person. 15. If the forfeiture, no less than the fine imposed by the statute, is omitted from the sentence, it cannot be imposed by a Court of exclusive civil jurisdiction. 16. Omitted from the sentence by the 'Criminal Court, no forfeiture ensues and, as a consequence, no title to the things which the Criminal Court could have decreed to be forfeited, but did not, is diverted from the convicted person. 17. Statutes imposing forfeitures must be strictly construed and construed most favorable to those against whom the forfeiture is directed. 18. All proceedings directed by the Statute for enforcing a forfeiture must be strictly followed. To the extent that the Judgment appealed from rejects the demand of Isidore Busha it is affirmed; but so far as it maintains the opposition .of the City of New Orleans, it is reversed.

Decided 1906-02-19

¶1 *229APPLICATION FOP REHEARING.

¶21. A petition for rehearing, which does not set forth the grounds oa which the complainant charges the judgment is erroneous, does not comply with the law and will not be entertained by the Court

¶32. Though, at times, appellate Courts have countenanced petitions not presented in compliance with the mandatory requirements of the law, where the party in adyerse interest -has made no objection, yet, the law must be 'enforced in any case when the Court is asked either by motion to dismiss or by rule to declare the judgment final, to reject the petition for rehearing.

DUFOUR, J.

¶4The City of New Orleans" has presented am application for a rehearing couched in the folowing language;

“That the opinion and decree rendered in this cause on the 19th clay, of February, 1906, is erroneous and contrary to the law and evidence and prejudicial to the interest of petitioner and that a rehearing should be granted in this matter?’'

¶5Armbuster thereupon moved to dismiss the application on the grounds;

¶6First. That the so-called petition for rehearing is not such a petition as is required by law and presents nothing upon which this Court can act.”

¶7• Second. That the City of New Orleans has acquiesed in the judgment of this Court by proceedings taken by it in the Criminal Court by proceedings taken by it in the Criminal District Court on March 1st, 1906, a duly certified copy of same being hereto annexed as part herein,”

¶8Article 912 of the Code of Practice is as follows;

“⅛ the interyal between the day upon which the judgment is rendered and that on which it becomes final, a party dissatisfied with the judgment may apply to the Court for a new hearing in the cause; and for this purpose shall present a petition, ■ in which’ he shall state substantially the reasons for which he thinks the judgment erroneous, and shall cite authorities in support of his opinion.”

¶9Rule 10 of this Court is substantially like the corresponding one of the Supreme Court, and is thus stated:

“Applications for rehearing must be by petition filed within *230six judicial days after the rendition of the decree which delay may be extended upon proper showing, and must be accompanied or followed (where delay has been granted) by three copies of a printed or written statement of all the points and authorities on which the party founds his application.”

March 19th, 1906.

¶10In this instance no special reasons are assigned to show error in the decree, and no delay was asked for to furnish points or authorities in support of the application.

¶11In Lacroix vs. Camors, 34 An. 639, the petition for rehearing alleged error in the judgment, and on motion a delay of fifteen days was granted to file a brief in support of the complaint.

¶12The Court, after citing 30 An. 190,-30, An. 1349-34, A. 379, 380, said:

“The Code of Practice and the rule both unequivocally and positively require that the application for rehearing must disclose the reasons for which the judgment is charged to be erroneous. In the exercise of its discretion the Court has provided for a delay to allow the party complaining to elaborate his points, upon which the Code is silent. But under either proceedings, the application must contain the grounds on which the judgment is assailed.

¶13It is therefore clear that an aplication for rehearing which complies neither with the Code nor with the rule of Court, is fatally defective and cannot retard the operation of the law under which the judgment becomes final.

¶14The application in this case, complying with neither, cannot be entertained by this Court.”

¶15The first ground of dismissal being founded, we need not inquire into the second.

¶16The motion to dismiss the application must prevail.

¶17It is therefore ordered that the application for rehearing herein presented be dismissed.