The facts of this case are stated accurately in the prevailing opinion, from which I dissent. The lots in contest are on the north side of Broad street, and are therefore not a part of the tract of land which John McDonogh bequeathed to the city of New Orleans and the city of Baltimore. It was so decided in City of New Orleans v. Union Lumber Co., 145 La. 476, 82 So. 588, and in Carrere v. City of New Orleans, 162 La. 981, 111 So. 393. The Puritan Company, therefore, acquired a valid title to the lots from the Quaker Realty Company; *Page 369 and the city of New Orleans has never had any title whatever to the lots. The prevailing opinion — from which I respectfully dissent — is that the city of New Orleans must be deemed the owner of a fourth interest in these lots in virtue of the city's plea of res judicata, founded upon the decree rendered by the Court of Appeal in the suit entitled "In re Quaker Realty Company Praying for Confirmation of Title." The decree rendered by the Court of Appeal in that case did not declare or purport to declare who owned the lots. The decree was merely that a judgment which had been obtained by the Quaker Realty Company against the city of New Orleans, by default, was null. In other words, the Quaker Realty Company had obtained a judgment by default against the city, declaring, correctly, that the Quaker Realty Company owned the lots. The city then sued to annul the judgment, on several grounds, mainly that the judgment by default was obtained improperly, because the city had filed an answer to the suit. It is true that the city alleged, in its suit to annul the judgment of the Quaker Realty Company, that the city owned the lots; but that allegation, of course, had reference to the merits of the original suit of the Quaker Realty Company, and was not a cause for which the judgment which had been rendered in the original suit could be annulled in a subsequent action.
The judgment which the Court of Appeal affirmed in the action of nullity, which is now pleaded as res judicata, and as deciding that the city of New Orleans owned a fourth interest in these lots, was in these words, viz.:
"In this matter, submitted to the court for adjudication, the court, considering the law and the evidence, and for the reasons in writing on file herein;
"It is ordered, adjudged and decreed that the judgment heretofore rendered in favor of *Page 370 the Quaker Realty Co., Ltd., and against the City of New Orleans, on December 13th, 1907, and signed December 19th, 1907, in the matter of In Re Quaker Realty Co. Ltd. praying for confirmation of title, No. 83,844 of the Docket of the Civil District Court, be and is hereby annulled and set aside."
The effect of that judgment, when affirmed by the Court of Appeal, was to leave the question of ownership of the lots undecided — as it was in the beginning of the litigation between the Quaker Realty Company and the city of New Orleans. The Quaker Realty Company asked for a rehearing of the city's action of nullity, in the Court of Appeal, and, in refusing the rehearing, the Court of Appeal construed its decree thus:
"Our original decree is amended to conform to the plaintiff's petition so as to read as follows:
"`The judgment of the lower Court being construed as annulling the judgment of confirmation in so far only as the interests of the City of New Orleans are concerned is affirmed.'
"In other respects the rehearing is refused." 10 Orl. App. page 92.
It is certain, therefore, that the Court of Appeal did not attempt, in its decree annulling the judgment which the Quaker Realty Company had obtained against the city of New Orleans, to go beyond its province and declare that the city of New Orleans owned the lots. The Court of Appeal had no authority to render such a decree in the action to annul the original judgment; and, in fact, the Court of Appeal did not render any such decree in the action of nullity.
It is true that the Court of Appeal, in its reasons for judgment, in the action of nullity, expressed the opinion that these lots were a part of the McDonogh tract which was bequeathed to the city of New Orleans and the *Page 371 city of Baltimore; but the reasons for a judicial decree are not a part of the decree itself and are therefore not a proper basis for a plea of res judicata.
"The reasons given by the court for its judgment in a particular case form no part of the judgment, and hence cannot be invoked as res adjudicata in a subsequent suit between the same parties." John Chaffe Bro. v. Morgan, 30 La. Ann. 1307.
"Where, on application for rehearing, a certain theory of the evidence is advanced on which a modification of the former decree is asked, if the modification asked is denied, expressions contained in the opinion refusing the rehearing, accepting or even approving the theory advanced, cannot be invoked as res judicata in a subsequent suit in which the same facts come in controversy." Penouilh v. Abraham, 43 La. Ann. 214, 9 So. 36. See also Kuhn v. Bercher, 114 La. 606, 38 So. 468, 471, and Morgan's La. T.R.R. S.S. Co. v. John T. Moore Planting Co.,130 La. 96, 57 So. 635.
"But in no court with whose jurisprudence we are conversant, do the reasons for judgment form an integral part of the judgment itself. The opinion of the court is but an exposition of the motives upon which its decree is based." West Feliciana Railroad Co. v. Thornton, 12 La. Ann. 736, 68 Am. Dec. 778.
"The reasons given by the court for judgment form no part of the judgment itself, and the judge of the lower court is not bound by any expressions used by the Supreme Court outside of the decree. Therefore, the decree of the Supreme Court which remands the cause to be proceeded with according to law cannot be taken by the judge a quo as finally deciding the questions at issue between the parties." Davidson v. Carroll, Hoy Co., 23 La. Ann. 108. *Page 372
Of course, if the opinion which the Court of Appeal expressed in the action of nullity, with regard to the ownership of these lots, had been expressed as the decree of the court, the expression would have deprived the Quaker Realty Company of its title to these lots, even though it would have been wrong, and would have been out of place in the degree annulling the original judgment. But the Court of Appeal made no such mistake. The mistake is being made now, in the prevailing opinion and decree in the present case, in overlooking the sound and settled doctrine that the reasons for a judicial decree do not form part of the decree itself, and cannot be the basis for a plea of res judicata.