City of New Orleans v. New Orleans Jockey Club

Citations

• 115 La. 912
• 40 So. 331
• 1905 La. LEXIS 753

Syllabus

<p>1. Appeal — Review—Extent op Decision.</p> <p>Where a distinct issue, raised by way of defense, has been categorically disposed of adversely to the defendants by means of a final judgment, which, maintaining another defense, dismisses the suit, and the plaintiff alone appeals, whilst the defendants neither join in the appeal nor answer it, praying for amendment of judgment, the issue thus decided is eliminated, so far as the appeal is concerned, since the ruling thereon cannot be reversed without amending the judgment appealed from, and the judgment cannot be amended to the prejudice of the appellant and for the benefit of an appellee, who has not asked for such amendment in the manner provided by law.</p> <p>2. Municipal Corporations — Streets — Obstruction — Action to Abate.</p> <p>For the purposes of an exception of no cause of action, where the city of New Orleans alleges that certain property has been dedicated for streets, that the title thereto is vested in the public, for whom she is administering, that the public is deprived of the use thereof by persons who unlawfully occupy and obstruct the same, and that such obstruction is a public nuisance, and prays that the same be abated, the facts alleged are not in dispute, and, as between the city and the defendants, the former is the best judge as to whether the owner needs the use of the property. A cause of action is therefore disclosed, and the exception should be overruled.</p> <p>(Syllabus by the Court.)</p>