Summary
In Hymel v. Central Farms Shipping Co., 183 La. 991, 165 So. 177 (1935), this Court abated an appeal from a judgment rejecting an application for moratorium. The statute considered in the decision was repealed and superseded by a statute enacted after the decision in the trial court.
Summary of this case from Dripps v. DrippsOpinion
No. 33180.
December 2, 1935.
Appeal from Twenty-Fourth Judicial District Court, Parish of Jefferson; L. Robert Rivarde, Judge.
Suit by Mrs. Louis Hymel against the Central Farms Shipping Company, Incorporated, and others, to foreclose a mortgage. Defendants applied to the judge for a moratorium, which was refused, and defendants appeal.
Appeal dismissed.
Milling, Godchaux, Saal Milling, of New Orleans, for appellants.
Charles J. Theard and Delvaille H. Theard, both of New Orleans, for appellee.
The plaintiff brought suit to foreclose a mortgage via ordinaria. The defendant applied to the judge for a moratorium, under the provisions of Act No. 159 of 1934. In response to the rule to show cause why the moratorium should not be granted, the plaintiff filed several exceptions and an answer. After a trial of the rule, on the exceptions and answer, the judge rendered a judgment rejecting the defendant's demand for a moratorium; and the defendant appealed from the judgment. Thereafter, the Legislature, in the Second Extraordinary Session of 1934, enacted a new moratorium law, Act No. 2 of that session, providing for the appointment of a Debt Moratorium Commissioner, with authority to pass upon all moratorium applications. The new statute does not declare that it repeals any laws in conflict therewith; but section 15 of the new statute declares:
"This act shall not be held to repeal or affect any suspension or moratorium granted under the provisions of Act 159 of 1934, but any such suspension or moratorium granted under said act shall remain in force during the period for which the same was granted, subject to revision or alteration as provided in Section 7 of this act."
The appellee suggests that this appeal should be dismissed, because the application of the appellant for a moratorium under the provisions of Act No. 159 of 1934 became abated by the adoption of Act No. 2 of the Second Extraordinary Session of 1934, which, except as provided in section 15 of the new act, superseded and, in effect, repealed Act No. 159 of 1934.
Act No. 2 of the Second Extraordinary Session of 1934 is a complete moratorium law, covering the whole subject-matter, and superseding Act No. 159 of 1934. Although repeals by implication are, as a rule, not favored or presumed, if it is obvious that the purpose of a law is to cover the whole subject-matter that is dealt with, it supersedes all previous legislation on the subject, and that which is not repeated or retained is in effect repealed. State ex rel. Broussard, District Attorney v. Henderson, Sheriff, 120 La. 535, 45 So. 430; State v. Chicago, R.I. P. Ry. Co., 133 La. 304, 62 So. 934; Knight v. Webster Parish School Board, 164 La. 482, 114 So. 104.
It is well settled also that, if the law on which a judicial proceeding is founded is repealed, or superseded and in effect repealed, by a statute enacted while the proceeding is pending in court, the proceeding is thereby abated. Todd v. Landry, 5 Mart.(O.S.) 459, 12 Am.Dec. 479; State v. Johnson, 12 La. 547; Cooper v. Hodge, 17 La. 476; Frey v. Hebenstreit, 1 Rob. 561; Doss v. Board of Commissioners of Mermentau Levee District, 117 La. 450, 41 So. 720; Western Union Telegraph Co. v. Louisville Nashville R. Co., 258 U.S. 13, 42 S. Ct. 258, 66 L.Ed. 437; United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763, 89 A.L.R. 1510.
Our conclusion, therefore, is that the defendant's application for a moratorium under the provisions of Act No. 159 of 1934 is abated, and that this appeal should be dismissed, without affecting any right which the defendant may have to a moratorium under the provisions of Act No. 2 of the Second Extraordinary Session of 1934. It is not necessary to decide whether, if the district judge had granted the moratorium under the provisions of Act No. 159 of 1934, this court might have affirmed the judgment, notwithstanding the statute was superseded by Act No. 2 of the Second Extraordinary Session of 1934. It is sufficient to say that, as there was no moratorium granted to the applicant under the provisions of Act No. 159 of 1934, there was none to be retained by the saving clause in section 15 of Act No. 2 of the Second Extraordinary Session of 1934.
It was said in the argument of this case, and was admitted on both sides, that the defendant had applied for and obtained a moratorium from the Debt Moratorium Commissioner, under the provisions of Act No. 2 of the Second Extraordinary Session of 1934; and a copy of the orders of the commissioner were filed in the record in this court. It is sufficient to say, in that connection, that the dismissal of the present appeal will not affect in any way the proceedings had or pending before the Debt Moratorium Commissioner, under the provisions of Act No. 2 of the Second Extraordinary Session of 1934.
The appeal is dismissed.