text:
    Court of Appeal --- Parish of Orleans.
    No. 7696
    Liquidation of Prudential Savings & Homestead Society. vs. Victor J. Gondolf
    By Dlnkelspiel. J.
   Plaintiff filsd this suit against defendant, claiming thi sum of ÍÍ5&3.8Q, substantially alleging, that prior to March 1st, ISIS, defendant made application -to plaintiff, a homestead association of the City of I'iew Orleans, for a . loan of §600.00 to be secured by vendor's lien and mortgage Upon oertain real estate tendered plaintiff by defendant, the loan to be made to defendant on the homestead plan, which loan Was accepted by defendant Upon the security tendered, and the loan was ordered completed in the usual course on the homestead plan, a check being then and there drawn for the amount of said loan, less expenses, §7.30, made payable ta the order of defendant, dated March 1, ISIS. Said check was delivered by the homestead association to Thomad D. riynn, its duly elected notary, then in the active practice of his profession, but now a fugitive from justice, his whereabouts bei$g unknown.

Plaintiff alleges that Flynn conspired with defendant to defraud said association and delivered the oheck over to defendant, and fraudulently endorsed, said check without signing the mortgage note for the said sum of §600.00, to be secured by vendor's lien and mortgage upon property tendered oy him, the said society, and viithout otherwise perfecting said loan and said check for said loan was in due course presented for payment through the bank upon which it vías drawn, and vías paid, and that defendant having received the proceeds of the loan without warrant or right, and without having executed the mortgage to secure said plaintiff, must refuad to said society the amount in cuestión.

Pefendant excepted to the petition on the ground that same discloses no cause of action, and pleading further, the prescription of one, three and five years to any claims plaintiff may have against him, alleging finally that the petition is too vague and indefinite.

The case having been heard by his Honor the Judge of Division "E", the late Hon. George E. Tneard, the exception of prescription «ras maintained and suit dismissed.

In due course an a^eal was taken and this Court remanded the case, holding substantially that the action was one not only in damages but also quasi ex contractu. Sub^ s equontly answered was filed, which a chits that the application for the loan was made by defendant at the time stated, and for the amount claimed; admits further that the check was delivered to the notary of'the said association, Thomas B. Flynn, by plaintiff, but denies that he, jsix±ji±i££xdefendant, in any manner conspired with said notary to defraud plaintiff; denying that he fraudulently endorsed said check or was in any wise responsible for the failure to complete the transaction in question or that the check was presented to the bank upon which it was drawn, or collected by him; denies that he received any part of the proceeds of said loan, but on the contrary avers that on the lóth of October, 1S11, he agreed to purchase from, one J'. A. Hardin property on Philip Street in this City for the sum of $735.00; that he made this agreement through one S. J. Clesi, a real estate dealer in this City, and deposited 10 per cent of the pir chase price to bind said sale, and subsequently applied to plaintiff for the loan in question; at their request and instance he went to Flynn, the notary's office, to complete this transaction; he further avers that notary Flynn in such capacity was the notary of said association and handed him, the defendant, various documents and papers to be signed which he, Flynn, stated were necessary; that In good faith defendant complied with Flynn's instruction», as such notary, who informed him, the defendant, the vendor of the property, Hardin, not then having appeared at hi» offioe to sign the aot of sale, and being unable to be present, he, flynn, requested that defendant endorse the check and that, he, Flynn Hotary, would subsequently complete the transaction. That the said Flynn then and there requested defendant to deposit, as the notary of said association and in his capacity as suoh, he not only being the notary and agent of the association, but at the time one of the members of the Eoard of Directors, the sum of £70'. 00, which amount the said notary represented was for the purpose of defraying certain expenses contingent to said transaction and to make up whatever difference there was between the amount of the association's check and th» purchase price of said property, taking into consideration the 10 per cent deposited with the said real estate agent, Clesi.

On the trial of the case plaintiff offered the oheok sued upon, together with the endorsement of defendant, in evidence. The oheok endorsed read, "Vio. J. Gondolf - Deposit, Thomas D. Flynn, Attorney, through Hew Orlean» Clearly House Uaroh 4, ISIS, Bank of Orleans, Heoelving Teller".

Defendant then in his own behalf was the only witness who testified in this cause and he stated that he had purchased this property through Clesi, agent, for $735.00} that he deposited.1C per cent with said agent and made application to plaintiff for a loan of $600.00 aooording to the usual manner that homestead associations tranaaot their business, and on page 3 of his testimony, further explaining the transaction, said: "The homestead passed on the loan, .said it would go through all right and they notify me later; they did ring me up, that is, Hr. Flynn did, and he told me to come to his office, that everything was ready for the act of sale tu be passed. I went to his office, sat down, and about a half an hour afterwards he told me, Harding would be in in a little while. I waited and finally Flynn said that, *If you have any business to attend to today, you can ¿o and attend to it. All that is necessary for you to do is to sign these papers and go. "e don't need you at all. \7han Hardin comes in, the act will ba passed all right.* He then handed me two or three papers to sign, which I signed, and left thinking everything all right."

"Q- Is this the check Flynn handed you to sign? A- Yes sir.

"Q- Is this your endorsement? A- Yes sir.

v-hat else v'/as on the back of the check?

"A- Thomas Flynn, Attorney. Deposit Thomas Flynn. He handed me two or three papers to sign in his office and I signed them. He then told ms to ¿0 and attend to my business.

"<i- Did you ever get tne proceeds of this check? A- Ho 3±r."

He goes on to testify and states: "Flynn was to have paid Hardin for the property, then transfer it to the association", and this is about the substance of the testimony contained in this record, and the question presents itself from all the foregoing facts, who has to bear the loss?

The answer to the appeal filed in this case praying for an amendment of the judgment in favor of the defendant for ÍÍ70.00, on his reoonventional demand, which amount vías paid by defendant to his agent and deposited with notary Flynn, cannot be allowed. 7e do not think this claim just or that plaintiff should suffer thia loss. This loss must be borne by defendant, and in our opinion plaintiff is in no wi3e responsible therefor.

Considering tile pleadings together with the evidence and. the sjíjí law applicable tc this case, «e are satisfied that plaintiff alone must bear the loes and defendant in no wise is responsible onerefor. K= naver received any ■¿.art of ins proceeds of the check or loan, same was never to have ¿.one to him at all, but to Hardin the vendor. That defendant acted on the instructions o£ Flynn, the duly Meets! notary and agent of the association, in endorsing the check, and he is not responsible for the notary's acts in not securing properly plaintiff's rights. He is an innocent third *,urty to this transaction, simply following instructions of Flynn, who in our opinion acted as the sole agent of plaintiff, who had trusted and sent him, Flynn, the check in question. Defendant did but what any reasonable man would have done under similar circumstances. He never benefited by the proceeds of this transaction in any manner, shape or form. He had no connection with it, save and except as shown by his answer in his testimony, ana whatever acts ho did was under the orders and directions of Flynn, the notary, an agent of the company, who had told him so to do, and that was 'to sign the papers including the endorsement of the check handed him by Flynn, and therefore, to hold defendant responsible in thiB case we would have to extend the doctrine of responsibility much further than we are willing to do.

The law applloable to this case and the decisions covering it are to be found in 45 La. p. 937, Detriham vs. Lumber Company; "VThatever an agent does within the scope of his authority, is m legal effeot the aot of his prlnoipal, who is entitled to its advantages and is also subject to its liabilities; his duty was to attend to plaintiff's interests under the oontraot." And Story on Agency,- 9th Ed. 505, Sec. 404; "But the responsibility of the prlnoipal tc third persona is not confinadas parties when the contract has been actually made on his expressed or implied authority. It extends further and binds the principal in all oases where the agent isacting within the scope of his usual employment, or has held tut to the public, or to the other party, as having competent authority, although, in fact, in the particular instance, exceeded or violated his instructions, and acted without authority."

Judgment affirmed.


source: Caselaw Access Project

author: CHARLES F. CLAIBORNE, JUDGE.

license: Public Domain

text:
    Charles F, Claiborne, Judge.
    Mrs. A. Lamazon vs L. Bromschwig et al.
    No. 7697
    February 24th, 1920.
   CHARLES F. CLAIBORNE, JUDGE.

This is a suit for rent. Plaintiff avers that she leased in writing to the defendant Bromschwig certain premises for a term commencing on February 10th, 1917 and ending on February 10th. 1919 for the price of $60 per month payable monthly in advance, with the condition that should the lessee fail to pay the rent at maturity, that the rent for the whole unexpired term should at once become exigible; that the rent due February 10th. 1918 was not paid, causing the maturity of all the remaining rent amounting to $780; that F. J. Semmes is a party to said lease as surety and is bound in solido with the lessee. Plaintiff therefore prayed for judgment against Bromschwig and Semmes in solido for $780.

Both defendants excepted to plaintiff’s petition on the ground that ”taken in connection with the lease attached thereto, •it disclosed no cause or right of action”.

By judgment rendered April 5th, 1918, the exception was referred to the merits.

On June 6th, 1918, on failure of the defendants to answer, default was entered against them.

On October 16th, 1918 the default was confirmed, and judgment was rendered against both defendants as prayed for.

The defendant F. J. Semmes alone has appealed.

The following note of evidence was made on the confirmation of default;

"Arthur Lamazon was sworn and examined on behalf of the plaintiff, and counsel offered in evidence the entire record including the lease and notes sued on, and the minute entry of default of date 6th. June 1918. By the Court; Judgment as prayed for11.

The statement that the notes sued on were offered in evidence is an error, as it does not appear oy the lease that the lessee furnished any notes. The Clerk certifies that the trans-script contains true copies of all pleadings, evidence, and documents filed in the case.

The clause in the lease by «hich the plaintiff attempts to hold F. J. Saramas is aa follows:

"And now comes F. J. Seminas who hereby makes himself party to this contract of leaae, and binds himself with the lessegin aolido for the faithful execution of all the obligations to be performed on the part of the leasee".

n'he name of "Semjaaa" appears nowhere else on the lease nor does it appear that -iv was written there by himr'»z'Z»'7*^' >

.s inthe absence of an order from The defendant contends A. the judge fixing the time within which he should answer after the exception had been referred to the merits, the default and confirmation of the default were premature and null, and that it was the duty of the plaintiff before taking a default to have taken some legal action to compel^the defendants to file an;' answer, or the exception should have been taken as an answer and the case regularly docketed and fixed.

The defendant is mistaken. Section 9 of Rule -DC of the Civil District Court provides that:

"When an exception is overruled or referred to the merits the defendant shall file his answer before ^the opening of the Court on the following day, or judgnent by default may be taken";

nd suchhas beep thp repognized correct practice for years,.

íhen Us appears from thr transcript that testimony which was taken on the trial of the case is not in the transcript, the presumption is that the judgnent of the District Court ms rendered upon sufficient evidence and that it is correct; in the absence of a statement of facts the judgment will be affirmed. 6 La. 72; 15 La. 232; 1 R. 448; 4 R. 325; 7 R. 179; 8 A. 437; 22 A. 73; 23 A. 393; 504; 24 A. 20; 26 A. 148, 734; 33 A. 107, 415; 34 A. 631; 35 A. 1147; 39 A. 227, 364, 881; 42 A. 335; 43 A. 91, 378; 51 A. 610; 123 La. 341, 902.

"When nothing whatever is shown, if evidence were necessary to have authorized the particular decision complained of, it will be presumed that the evidence vas before the Court and that it fully justified the conclusion reached". Black on Judgments, Sec. 271.

The rule is different only when the Clerk certifies that the transcript contains all the evidence offered, and the transcript does not show otherwise. In 'such a case, if the evidence is not sufficient to support the judgment, it will be reversed and the case remaned. 52 A. 707, affirmed in 106 La. 6.

The burden of proof was upon appellant to show that the judgment of the District Court was erroneous. 123 La. 331, 895. In order to do this it was his duty to bring up to this Court all the evidence upon which the case was tried. There is no law, nor rule of the Court, which requires a litigant upon the trial of his case to make a note of evidence noJ^io take down the testimony is writing. 6 La. 129; 1 R. 448; 8 A. 436; 34 A. 631; 36 A. 94, 615; 39 A. 227, 364; 42 A. 335.

If the testimony has been taken down in writing and transcribed it shall serve as a statement of facts and be brought up. C. P. 601. If it ha (S'not been taken down in writing, or if it has not been transcribed, the appellant must procure a statement of facts from the adverse party or from the Judge. C. P. 602, 603, 896; 34 A. 631; 36 A. 613; 39 A. 227 , 364; 42 A. 335; 43 A. 378, 541; 108 La. 432; 123 La. 340; 136 La. 44.

In the absence of these, the Supreme Court will reject the appeal. C. P. 896; 6 La. 129; 29 A. 71. But in both cases- the duty devolves upon the appellant to furnish a complete transcript of all proceedings had in the District Court.

In the cpse under consideration the note of evidence shows that the testimony of one witness, Arthur Lamazon was taken. His testimony is not in the transcript. The note of evidence ~ must prevail over the Clerk's certificate that the transcript^ all the evidence taken. 35 A. 820; 123 La. 331; 136 La. 44. We must presuné that this testimony fixed the liability upon ¶. J. Saranes, alleged to have signed the lease as surety.

In Parham vs. Succession Ogle, 22 A. 73, the Court said:.

"If tha record contains no note of evidence, but it appears that the letters were received in evidence, in the absence of proof to the contrary, we will preside that the judge did his duty and reauired proof of the signatures before receiving them in evidence".

On the trial in the District Court, one of two things must, have happened: either the testimony of Lamazon was talcen down in writing, when it became the duty of the appellant to bring it up. Ihe presumption is that it was so taken down, as it is made the duty of the Court's stenographer "to report all testimony taken in open Court" and “to deliver to the Clerk of the Court a transcript of the same". Section 3 of Act 141 of 1914, p. 255. Or it was not takerf^down ip writing,'^"'not transcribed, or not filed, then appellant should have taken proceedings to procure a statement of facts from the appellee or to have the testimony transcribed and filed. The practice has been sanctioned by judgment of the Supreme Court to render judgment before the testimony is transcribed or filed, and to permit litigants to file the same long after judgment. 47 A. 346; 43 A. 833. Appellant has done neither. He has not destroyed the presumption in fhvor of the correctness affirmed. 1 R. 100, 132, 543; 15 La. 232; 39 A. 881.

"When on an appeal from a judgment confirming me taken by default, the record contains no statement of fact, and the certificate of the Clerk shows that parol evidence was produced on the trial, but not taken down in writing, it will be presumed that plaintiffs claim was proved by legal evidence before the judgment by default was made final. 'Share the testimony introduced on the trial has not been taken down in writing, the party intending to appeal must require the adverse party to draw jointly with him, a statement of the facts proved, to be annexed to the record". C. P. 602; 7 R. 179; see also 10 M. 20; 9 R. 478; 18 A. 229; 23 A. 746; 22 A. 83; 9 A. 190; 3 A. 592; 5 R. 169; 6 La. 164, 303; 11 A. 644.
"The party wiping to appeal and have the jutgMfct of the inferior court reTieed muet aee that the evidence ie taken down in writing, or a statement of facts made out; otherwise judgnent will he affirmed with damages* 15 La. 232.

It is therefore ordered that the judgnent herein he affirmed,

kpal 24thf*1920,


author: St. Raul, Judge. St. Paul, Judge.

text:
    NO. 7698.
    MRS. WM VON DROZKOWSKY, ET AL VS THOMAS J. KILBRIDE, ET AL.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   0 I B I 0 N.

St. Raul, Judge.

This is a petitory action. The property in controversy belonged to the late John G. Seifer, who was married twice. _Jt was purchased just twenty days after his second marriage for 11150, of which one half was paid in cash, and the other half in one year.

Seifer had no children by his second wife, who died before him (1887) and whose nearest of kin are shown to be her mother, since deceased (1893), one sister, and the children of a predeceased sister and brother.

But though Seifer had no right of¿(t»sufruct on his wife's share of the community (Suco, of Lee, 9 An 398), yet he retained possession of this property until his death; and thereby doubtless recouped the amount of the cash payment thereon.

When Seifer died (1912) his two daughters by a former marriage (his sole heirs) found in his possession the pieoe of real estate involved in this controversy and another also belonging to the second community.

These (and other properties) they partitioned in kind between themselves. The property in controversy, then ^■,,2500, was taken by his daughter !.lrs. Uixon; and the other, then appraised ¿2000, by his daughter Mrs. Staiper. liaoh warrantod the titlo of the other.(1912)

In 1915, lira. Staiger purchased from the jiator and other helr3 of the second Mrs. Seifer, the plaintiffs here, their interest in the other property.

On July 1st 1914, Mrs. Mixon sold this property to l'homas J. and Anna M. Kilbride, the defendants here, with full warranty and with substitution to all claims arising out of previous warranties (if any).

The Kilbrides have called iñ warranty their own author Mrs. Mixon, now an absentee, and herein represented by a ourator ad hoo; and have also called her author (for one half), viz, Mrs. Staiger^now represented by her four children.

Reither the Succession of the second Mrs. Seifer, nor that of her mother, was over formally opened, and henos their heirs have never been "recognized and put in possession by judgment of court"’; nor have they ever been in actual (i. e. physical) possession of the property herein sued for»

I.

The defendants pleaded the proscription of ten years, which however is not insisted upon, and for which we see uo basis whatsoever. They also sot up an exception of "no cause of action", thereby challenging petitioners right to bring this suit; and as the foundation thereof, they now urge the ruling in Blum vs Allen, 145 La...... 81 Southern 760, that "Hairs have no standing to sue for the reoovery of the property inherited by them until they shall have been recognized by a judgment obtained contradictorily with the inheritance tax collector, putting them im Dossession and fixing the inheritance tax". Siting Act 109 of 1906; Succ. of Pavey, 124 La 525; Coreil's Estate, 127 La 702.

The only difference between that case and this is, that in the former the da oujus died after the act of 19o6, whereas in this the da quorum, Mrs. Seifer and her mother, both died before it.

That act, passed for revenue purposes, effected however a radical change in the ancient laws of this state, and ordinarily would not be thought retroactive. For prior to the first inheritance tax law (1904) the maxim "la mort saisit le vlf" prevailed in this state, and it was accepted law that the rights of heirs, i. e. the inheritance, vested at the moment of death; so that it might seem at first that to give that statute retroactive effect, offerred pertain constitutional objections.

But in Succession of Levy, 115 La 377, our Supreme Court virtually rejectee' the doctrina of si:tr.tr. q-? right as a pure fiction, and (in effect) adopted that of the Old Common law, exemplified in the maxim "Hon jus sed seisins facit stipitem" (Blackstone, Vol 2,1 p 209; Kent, Vol 4, p 385-086); a doctrino discarded in England since the statute of 3 & 4 William IT, chapter 106, and long ago repudiated by every other state in the Union. 4th Kent 387.

So that the question of vested rights having thus been disposed of, there appeared no longer any constitutional objection to giving the statute of 1904 a retroactive effect. Cahn vs Brewstel, 203 U. S. 552 (The same case).

In Succession of Stauffer, 119 La 66, the same question arose once more; this time under the act of 1906. Again the Supreme Court rejected the doctrine "le mort ralsit le vif," declared the statute retroactive, and denied any vested right in the heir unless and until actually, i. e. physically, in possession of the property.

As the act of 1906 is retroactive, it follows that the ruling in Blum vs Allen, supra, ought to prevail in this case.

But we do not think the act of 1906 literally applicable to a purely contingent claim or mere right of notion; for section 3 authorizes an heir, even before recognition, to do all suoh acts as may be "necessary to preserve the property from.LOSS." Otherwise the aot would in effeot quiet avery spoliation; and the greater the spoliation the more certain the confirmation.

Nor do wo think the ruling in Blum vs Allen, should be takeh too strictly. All that the oourt meant was simply that the helra could nox obtain nuaseasIon of the estate without paying the inheritance tax that might he due thereon for that was all the statute intended.

iTe think it would suffice for that purpose that the inheritance tax collector he made a party to the suit, to the end that the tax might he fixed in the very judgment which gives the heir actual possession; and we think this case may properly he remanded for that purpose.

The judgment appealed from is therefore reversed, and the case is now remendad to the court a qua there to he this prowoeded with in accordance with opinion and according to law; the costs of this appeal to he paid hy plaintiffs, and all other costs to await the final judgment.

New Orleans La, February 1920

OH REHEARING

O P I H I O H.

St. Paul, Judge.

The facta of the case are stated in our first opinion; and there would then have been judgment in favor of plaintiff^ had we not thought ourselves bound to follow herein the ling in Blum vs Allen, 145 La.

But we had overlooked the ruling in Succession of Westfeldt, 122 La 836 (843), that the provisions of the Constitution touohing liability for an inheritance tax, and the statutes carrying them into effect, do not reach back to conditions anterior to the Cbnstitution itself, which looked only to the prseent and future and not to the past.

I.

The nit revenues of the property from judicial demandd to March bth 1919 were $219.10; and plaintiffs must also have judgment for one half thereof, with reservation of their right to claim one half the net revenues after that date.

II.

The demand in warranty between the appellees cannot be entertained in this appeal (7 Orleans App 420; 9 Orleans App 299). Moreover they were not passed upon by the judgment appealed from.

Our former decree is wherefore sbt aside and the judgment appealed from reversed; and it is now ordered that there be judgment in favor of plaintiffs recognising then as joint owners (in the proportions dlainufl by than.} of one undivided half of the propart^tai in cantroT»’nrj ¿ end further judgment against the defendants Thomas J. and Anna ~ti. Kilbride for the sum of ^10^.55 with legal interest from March 5th 1919, and with reservation of plaintiff's right to recover one half of the net revenues of said property from said date until delivery; and for their costs in both courts.

New Orleans la, April 19th, 1920


author: Blnkelsplel, J

text:
    Court of Appeal -- Parish of Orleans
    James Gaskins, et als versus Otere Marshall, et al.
    Nos. 7701
    7702
    Consolidated.
    By Dlnkelsplel, J.
   Blnkelsplel, J

This is an action brought by James Gaskins and others named In the petition olalmlng to be the true and lawful owners of the following described property!

"A certain tract of land situated in the Parish of St. 'James on the left bank of the Mississippi River, and ■about S5 miles above the City of Mew Orleans, measuring 58 feet in width fronting on said River, by a ■depth of 65 arpents, more or less, bounded above by ■lands formerly belonging to «llllam Tenue, and below ■by land now or formerly belonging to Ben Jacobst be-■lng one-third portion of a larger tract aoqulred by ■Lea Gaskins from Floretan Sohexnayder by act passed ■before Louis Bugas, Rooorder of the Parish of St. ■James, on the 6th of January, 1876, reoorded la ■Miscellaneous Acts 1874-1877, folio 3f8, of the reoords ■of the Parish of 8t. James."

These pSttloners set up their ownership to the property described above as the duly recognised heirs of Lea Gaskins, a former owner of said property, making part of their petition the record in the Succession of Lea Gaskins, whioh shows that the said James Gaskins, and his oo-helrs named In the proceedings, were by ex parte judgment,rendered and signed da ohambers on the 14th day of February, 1917, by the Judge of the 37th Judicial Dlstrlot Court, reoognised ae the sole heirs of the said Lam Gaskins, and as suoh sent Into possession in the proportion set out la said ex parte judgment, of the property which Is the subject of this suit*

This suit Is dlreoted against Otere Marshall, (or Mars) Adam Bourgeois, James Priestly, Louis Thersnoe, Jr., and Tllliam Tureaud, mode joint defendants, and who it Is alleged are In actual physical possession eaoh of different portions of the above desorlbed property without title thereto and without right to remain In possession thereof.

They further contend that the said defendants refused to deliver possession of the property to them and pray for judgment recognizing plaintiffs as the true and lawful owners of the said property and that they be sent into possession thereof in the proportions set out in the suo-oession proceedings referred to.

The defendants, Louis Therenoe, Jr., and James Priestly, never having been oited or In anywise entered Into these proceedings, are not parties thereto. The other defends ants filed exceptions of misjoinder of parties and vagueness, which being overruled and not now Insisted on, subsequently filed answers, and the answers of Marshall and Bourgeois involving questions identical to be deoided in this case.

Adam Bourgeois, one of the defendants, admits in his answer that he is in the actual physical possession of the following desorlbed property, to-wlt:

*A portion or lot of ground situated in the Parish ■of St. James on the left bank of the Mississippi ■River, about 55 miles above the City of New Orleans, ■measuring 36.feet front faoing the Mississippi River, acres ■and two wywtt in depthy bounded in front by the ■land of Marshall and in the rear by lands formerly ■belonging to Lem Gaskins, and above by lands belonging to William Tenue, and below by lands belonging ■to Sam Jones. ■

Be further avers that the above desorlbed property was purchased by him in good faith for value from Caroline Sheppard, Widow of Lem Gaskins, and that he haB been in actual physloal possession of same continuously, personally, and publioly for over twenty yearB, which posseasion aa above set out is admitted by plaintiff.

He further sets up in support of his ovrnershlp the pre-soription of ten years aoquirendi oausa. whioh plea of prescription was maintained by the judge a quo.

Otere Marshall (or Mars), the other defendant, also asserts actual and physical possession of the property sought to be recovered by plaintiffs, whioh property is described as follows:

"A portion of ground situated in the Parish of St. "James on the left bank of the Mississippi River, "about 55 miles above the City of Hew Orleans, measuring two acres in length, bounded in front by the "property of Ed. Green, and in the rear by that of Tureaud, "Adam Bourgeois, above by lands of Soxx, and below "by lands of Ben Jacobs."

By admissions filed by both counsel of reoord in this case it is agrBed that the property quoted above does not inolude all of the property which was aoqulred by said Marshall from Caroline Sheppard, and in order to definitely fix a desoriptlon of the property, ownership of whioh is olalmed by Marshall, it was agreed that in the event his plea of prescription was maintained by this Court, that the desoriptlon of the property should read as follows:

"A portion of ground situated in the Parish of St. "James on the left bank of the Mississippi River, "about 55 miles above the City of Hew Orleans, meas"uring two aores in length by 36 feet in width, to "be measured from the railroad track, and bounded in "front and in the Bear by other lands of said vendor, "and above by lands of William Venus, and below by "lands of Sam Jones; also a certain other lot or por"tion of ground situated in the Parish of St. James "on the left bant of the Mississippi River, at about "55 miles above the City of Hew Orleans, faoing the "River, by a depth of about 1 aore, bounded on the "front and on the lower side by other lands of said "purohaser, Otere Marshall, and above by lands of WWilliam Venus, and in the rear by a lot of ground of "Adam Bourgeois."

And to both of these properties a plea of prescription of ten years aoquirendi pausa was urged also by Marshall.

It is admitted by counsel for plaintiffs that there is no doubt that these defendants have been in aotual oor-poreal possession of their respective properties olaimed by them for over ten years, but they urge that in order to support the ten years prescription there must be a deed accurately describing and looating the lands, whioh is laoking in this oase.

In our opinion this claim is not well founded or supported by the evidenoe found in this record, for whilst it is true that no survey was made at the time of these respective sales to determine the exaot locations of the properties in question in reference to the whole traot of which they originally claim a part, the fact nevertheless remains that the descriptions made were sufficient to enable both of these defendants to take physioal possession of same, build their homes thereon, and to remain in possession thereof from the dates of their respective purchases up to the time of filing this Buit, now more than twenty years.

re are therefore of the opinion that the defendants Otere Marshall (or Mars) and Adam Bourgeois have oomplied with all of the provisions of our law whioh enables them to retain possession as owners of the properties olalmed by them under their pleas of proscription of ten fears aooulrendl pausa as urged by them. C. C. Art. 3478, 3479, 3481, 3482, 3485, 3486. Also see case of Jordan v. Richards, 114 La. 329; Bennett v. Calmes, et als, 116 La. 599.

The other defendant, Mrs. Agnes Therenoe, wife of Louis Therenoe, who was oalled in warranty by William Tureaud, sets op ownership to that portion of the property held by her, alleging that being in possession of same, it was encumbent upon plaintiffs to prove their ownership as heirs of Lem Gaskins, as olalmed by them, whioh ownership is speoifioally denied by her.

It is true that this defendant in her answer denies that plaintiffs are the legal heirs of said Lom Gaskins, and that as suoh heirs they are entitled to the property now in her possession in the proportions set up by $hem, but no evidenoe was offered In her behalf to sustain that olalm, whilst the plaintiffs' olalm Is based upon ths Judgment of the 37th Judióla! Distriot Court for ths Parish of St. James, as shown by the reoord in the Succession of Lem Gaskins, being Wo. 3096 of the dooket of said Court, whioh judgment and reoord were offered in evidenoe ok/ by plaintiffs hereto an-yneld by our Court, In ths absence of necessary proof, must be recognized as rendered. Glover v. Doty, 1 Rob. 130.

In so far as ths olalm of Mrs. Agnes Therenoe to this property based upon her heirship as natural heir of her mother, Mrs. Caroline Sheppard, the widow in necessitous oiroumstanoes of the deoeased, Lem Gaskins, and lnasmuoh as the said Caroline Sheppard took no proceedings as widow In necessitous olroumstanoes to have the property herein olaimed judicially tranaferred to her, the olaim to thia property now made by thia defendant, on thia ground, oan not he maintained. Warner, et al v. Hall & Logan Lbr. Co. Ltd., 121 La. 82.

Defendant lira. Therenoe alao olalma ownerahip to one-half of thia property aa having been inherited by her from her deceased mother, Caroline Sheppard, whom ahe allege» that at the' time of her death waa the widow in community of Lem Gaskins. The reoord, however, does not disclose that Mrs. Caroline Sheppard was the widow in oommunity of her predeceased husband, Lem Gaskins, in so far as this property ie oonoerned; on the oontrary, the reoord shows that the property in question was acquired by Lem Gaskins in 1876, whilst his marriage with the mother of this defendant did not take plaoe until 1893, sixteen years thereafter.

The last olaim set up by this defendant is, that in any event she is entitled to one-fourth of this property, same being the marital fourth aoqulred by her mother, Caroline Sheppard, at the death of Lem Gaskins, and subsequently inherited by defendant herein at the death of her mother.

This question has been passed upon by our Court on more than one oooasion, and it is now well established by the jurisprudence of this State that the marital fourth is not a vested right, nor is the surviving spouse an heir to same, nor is she entitled to s£me as an inheritance. Succession of Rogge, 50 Ann. 1228; Succession of Justice, 44 Ann. 721.

for the reasons assigned, it is ordered, adjudged and decreed that the property olaimed byOtere Marshall (or Mara), under the plea of preaoription of ten years aoqul-rendl oauaa aet up hy him be sustained, and he is hereby deoreed to be the owner of seme, and as suoh ovrner be maintained in possession of said property as follows:

"A certain lot of ground situated in the Parish of St. "James on the left bank of the Mississippi River, at "about 55 miles above the City of Hew Orleans, measuring S aores in length and 36 feet in width, to be "measured from the railroad track:, and bounded in "the front and rear by other lands of the said vendor, "above by lands of William» Venus, and below b'y lands "of Sam Jones,"

and

"A oertain lot of ground situated in the Parish of St. "James on the left bank of the Mississippi River, at "about 55 miles above the City of Hew Orleans, measuring 36 feet front facing the said River, by a depth •of 1 aore, bounded in front and on the lower side by "the other lands of said purchaser, Otere Marshall "(or Mars), above by lands of William Venus, and in "the rear by a lot of ground of Adam Bourgeois."

It is further ordered, adjudged and deoreed that the property olalmed by Adam Bourgeois by the prescription of ten years aoauirendi oauaa set up by him, the defendant in suit, be maintained, and that he, Adam Bourgeois, remain in possession as owner of said property as follows

"A portion or lot of ground situated in the Parish of "St. James on the left bank of the Mississippi River, "About 55 miles above the City of Hew Orleans, meaaur-"lng 36 feet facing tho Mississippi River, and 3 aores "in depth, bounded in front at by the lands of Otere ■Marshall (or Mars), and in the rear by lands formerly •belonging to Lam Gaskins, and above by land» belonging to William Venus, and. below by lands belonging ■to Bam Jone»."

It is further ordered, adjudged and decreed that the petition of James Gaskins, et als, plaintiffs herein, be recognised as the ownere of that portion of the property now olalmed by Agnes Therenoe, wife of Louis Therenoe, be maintained, and the claim of said Agnes Therenoe as owner of said property be and is herewith rejeoted.

It is further ordered, adjudged and deoreed that the said James Gaskins and others named in the petition herein be sent into possession of the property olalmed by Agnes Therenoe, as the owners thereof, in the proportions as set out in the judgment of the 3Bth Judioial District Court for the Parish of St* James in the matter of the Suooesslon of Lem Gaskins, being No. 3096 of the dooket of said Court.

The oosts in the case of Otere Marshall (or Mars) and Adam Bourgeois to be paid by plaintiffs and appellants, and the costs in the oase of Agnes Therenoe, wife of Louis Therenoe, to be paid by her.

Judgment amended and affirmed.


author: John St. Paul. St. Paul, J;

text:
    NO. 7703.
    GRAND ISLE NAVIGATION DISTRICT VS LOREDON G. RIGAUD.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.
   OPIUIOJJ.

Bp His Honor

John St. Paul.

Plaintiff sought to expropriate part of defendant's land and offered $25. Defendant askj}^$1500 as the ralue of the part to he taken and of the damages to the rest. The jury allowed 410 and efendant appealed.

Plaintiff now mores to dismiss for want of jurisdiotion"heeaus<-the amount involved is less than $100."

The basis of the motion is that the ralue of the land sought to he taken is admittedly less than $100, and that defendant cannot reoorer the damages to the rest of the land in the same suit.

The motion to dismiss cannot prevail; I. Eren if the point were well taken, nerertheless the claim is made in this suit and therefore this court has appellate jurisdiction to decide whether it he proper to entertain the claim now; for that rery question presents a serious ooutrorersy inrolring more than $100. In other words, where one MM&i causé of action is cumulated with another the very question whether it was properly so cumulated presents a controversy inrolring st least the amount of the claim so cumulated. And 2. The very words of the law declares that the demand for damages to the rest of the land may properly he cumulated with the claim for the value of the part to he taken, thus;"x x A jury shall he empaneled which shall x x x determine, after hearing the parties and their evidence, what is the value of the land x x x. And what -’amages, j.f any, the owner would sustain in addition to the loss &of theland x x x." C. 0. 2.262.

The motion to dismiss is therefore not v/ell founded.

notion Denied

New Orleans, La, November 1919

0 i I II I O H.

St. Paul, J;

This is a suit to expropriate a sraalj.1 portion of defendant'3 marsh land^undsr tha provisions of Act 302 of 1914; and incidently enough land on both sides thereof to old the excavations taken from the trench; the same to be thrown up as dykes to protect the canal from damage by surface drainage, and servo as a foundation for landing places ami roads or approaches thereto.

I.

Jp. The defendant challenges the constitutionality of the act of 1914 on two grounds;

1st- That it violates Art 31 of the constitution in that "it embraces more than one object, and provides for navagation canals and also for building of public roads or highways.” But we have searched the act in vain for anything that appears to authorize Navagation Commissions to undertake <U the construction of roads and highways, otherwise than^ad juncts and accessories to a navagation canal; and this only in the following wordsyvhich on their face show that the statute has but one object; viz, "They shall have the further power to improve the entire district for) by any means whatever they deem most advantageous to effect the object for which they V are formed.

2. That it violates article 210 of the constitution in that it peimits the appointment of (and there have been appoimted] Navigation Commission^ who do not reside in the district. It may be that provision of the act violates the constitution; but if so it falls of its own weight, without however affe.cting in any way the rest of the act; for this part of the law is not so essential to the main purpose that the .latter cannot stand without it. As to the fact that commissioners may not be residents of the district and therefore not qualified to hold their office, there we meet with a doctrine as old as the time of Pomponius; fo^a fugitive slave having become Traetor in Imperial Rome, that great jurisconsult first laid down the doctrine that the official acts N^of a defacto officer could not he collaterally assailed O). I. 12.2). See State vs Sadler, 51 An 1397.

II.

From a list of 48 names of apparently qualified jurors 24 wore selected according to law and summoned as special jurors herein. On the day of trial one juror failed to appear because he had not been found, another was found to be exempt by lav/, and .a third was excused by the Judge on account of illness. Thereupon the defendant by exception and objection challenged the array and objected to going to trial until sufficient jurors should be attached (summoned instantar?) to complete the array of 24 under R* S. 700. But the judge forced the trial at once and the panel CÍjL formed (apparently¡without challenges to polls in any case.

The objections were properly overruled. It is no cause, for challenging the array of jurors that the exact number required by law were not drawn or did not appear, or that some of them were not qualified; but it lies wholly within the discretion of the trial judge to order a trial to proceed when in his opinion there are *■ sufficient number present to complete the panel. C. P. 497, 501; State vs Farrer, 35 An 315. This iff being the rule criminal as in civil matters, we see no 4 reason why it should not prevail in expropriation suits; since otherwise the trial of such cases would be well nigh impossible.

III.

On the merits the situation is this. Plaintiff tendered ‡25 for the land, the evidence is conclusive that it is not worth §10, and the jury allowed only the latter sum. Defendant claims however that by reason of the canal cutting him off from his own private landing by blocking a shellroad leading thereto he will be damaged in a very large sum if the canal ahould prove a failure. He admits however, repeatedly and unqualifiedly, that if bob canal proves a success he will be damaged in no way whatever.

If the question whether the canal would or would not prove a success were one of fact we would have no difficulty whatever in concluding the affirmative; for the defendant only doubts Its success, whilst others (better qualified than he) do not hesitate to affirm their abiding faith in the complete success of the enterprise.

But in our opinion that question is nn« thnt imnrHrm. ■is not one of fact but of law; for the presumption is Juris et d£ jure that the canal Will be a success. In other words, the inauguration of a public work of any kind is a legislative function; but no ptblio work should be inaugurated by a legislative body until it has first determined that it will be a success. Hence when a legislative body has inaugurated a publio work of any kind, it has in the exercise of its proper functions determined affirmatively that the work will be a success; and it is therefore not .within the province of the judicial department to substitute its own opinion for that of the legislative finding. Const Art 17.

We therefore eoncludd that defendant is entitled only to the value of the land taken, and not to damages. But under the pleadings the award of the jury should have been for the amount tendered, towit $25. In view of the tender the trial judge properly condemned the defendant to pay the costs of the court below; but of course the plaintiff must pay the costs of appeal.

It is therefore ordered that the judgment appealed from he amended so as to increase the amount awarded defendant from len 1o twenty five dollars; and as thus amended the judgment is affirmed; defendant to pay the costs of the court below and plaintiff to pay the costs of appeal.

Mew Orleans, La, February 19E0


author: CHARLES P. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    MRS. G. K. HUCK VS. MRS. R. V. LEMIEUX & AL.
    No. 7704.
    March 8th, 1920.
   CHARLES P. CLAIBORNE, JUDGE.

This is a suit to recover $700 deposited hy a purchaser as earnest money.

The petitioner, Mrs. Buck, alleges that, through R. Mo. ^ —.Williams,a real estate agent, she sold to the defendant, Mrs. I_Rosalie Lemieux, wife of T, A. Lemieux, hy contract dated October 8th, 1917, for the price of $7000.00 the property No. 24 Morgan Boulevard; that the said Mrs. Lemieux deposited with 51c Williams $700.00;

* III that after entering into this contract and mating the deposit, as set forth, the said Mrs. Rosalie Lemieux refused to carry out the terms of said contract and take title to the said property and pay over the purchase price agreed upon, whereupon a clear and unencumbered title was tendered to her by plaintiff herein and she was called upon to accept same on a day and hour fixed; whereupon the said Mrs. Lemieux, through her attorney, L.A.Morphy, by letter dated October 26th, 1917, waived any formal tender of title and wrote that plaintiff was at liberty to bring suit whenever she desired";

that therefore the said Mrs. Lemieux has forfeited the said deposit of $700; and the plaintiff prayed for judgment for said amount against Mrs. Lemieux and R. Me Yfilli&ms.

The contract sued upon is in the following words:

"Ndw Orleans, Oct. 8 , 1917.
To R. Me Williams
Real Bsta-te Agent, City.
Dear Sir:-
I hereby offer, through you, to purchase the following property, to-wit; (Description) for the sum of Seven Thousand Dollars ($7000) on terms of cash. I will pay the taxes due and exigible in 1917 over and above the price of my offer, I will pay agent’s commission, x x x If this offer is accepted X will deposit in your hands ten per cent of the amount of above offer; - act of sale at my expense and before Notary Public, which I bind myself to sign and pay to vendor purchase price; provided the title is found on examination to be good, other wise the sale is of% and the‘deposit made by me shall be returned. In case I fail to comply'With above offer, if accepted, I agree to pay all the loss and damage the said,R. lie Williams may sustain by my failure to comply with my part of this agreement and also attorney’s fees which the said R. Me Williams may incur in suit to recover said loss and damages.
"Signed” Rosalie Lemieux"
^ I hereby accept the offer and terms made. At this point the following words are erased; "and will pay R. lío Williams a commission of _per cent for making sale".
"Signed" Mrs. Georgiana Krail Huck".
The receipt is in the following words:
^ New Orleans, La., Oct. 8th, 1917
Received from Mrs. R. 0. Lemieux Seven Hundred Dollars be~ ing a deposit of ten per cent of the purcha.se price of the property No. 24 Morgan Boulevard sold to her this da.y at private sale for the sum and price of $7000 Seven Thous.'.nd Dollars in accordance with terms of written offer and '/ acceptance,
"Signed" R. Me Williams,
Agent.
The tetter is as follows;
October 26th, 1917
Oliver S.Livaudais,
Dear Sir:
I have your l-etter of October 25th. with reference to the Lemieux matter. There is nothing to be accomplished, I assume, by any discussion of the matter in view of the apparent positions taken by the parties in interest; I do not think the statute you refer to has the application you suggest. Also, the seven hundred dollars actually psid was not Mrs. Lemieux’s money, but her husband’s, represented by a olMek of Lemieux Brothers & Company, Hr* inmisux’s fir», dram to the ord«r of B* Ho Willimas, and charged to the personal acaount of yrederiok A* lemieux, Hr*. Hoaalie 7* Lemieux* husband* If you wish to return Hr* Lamitux* Booty, and sue Sirs* Lemieux on her pre smalt personal oontraot, n>tbdng can, of course, prevent your doing that, for whatever suooeso yon My thinir is in store for you© Ton may oonaider that your formal tender of title is waived, and that yon are at liberty to bring suit whenever yon desire* I remain, very truly yours
“Signed» L. A. Morphy»

fhe defendant, Bosalie Y. Lemieux, wife of Xredsriok A Lemieux and the said irederiok A* Lemieux excepted to the petition on the ground that it was defedtlve In not malting the eaid irsderiok A* Lemieux a party to the suit, end that it disolos-ed no cause of action against Bosalie Y. Lemieux*

Shese exceptions were overruled* Act 94 of 1916 p 212; Act 244 of 1918 p 435*

M. Lemieux on Haroh 19th, 1918, then answered* she admitted that she signsd the oontraot above mentioned; she admitted tbs deposit of $700, but alleged that aald sun did not belong to her but to her husband; she admitted the allegations of Article in copied above; ehe further alleged l

•that she caused the aforesaid sum of $700 to be taken from her husband * s funds and paid over to B* Ho Williams, agent,without authority to do so, but thinking her action would meet with her husband*e approval; that she subsequently found her action did not net with her husband’s approval; and she prayed that plaintiff's suit be dismissed and that she have judgment ordering the return of the $700 to her*»

fhe defendant, Eoxell Ho Williams, admitted all the allegations of the petition; furtiro answering ha alleged that he had complied with all his obligations as a broker in the transaction and that ha was entitled to a commission of three per sent on the price of sale, say $210, and to $50 attorney’s fees, in accordanoe with the oontraot; and he prayed

•that the demand of plaintiff be rejected, but in oase of recovery by her, then, in that event, that his rights against her, under said agrae-Mnt of «le, be recognized, and that he be permitted to retain in his hands out of said fund the amount of damages due him by her, to-wit, the sus of $210 and $50 additional aa attorney’s fees, and that his reoon-ventlonal demand be rooognizat against her In said amount»*

Frederick A* Lemieux intervened, alleging that the $700 deposited by his wife ware his property had bean paid over to Ho Williams "without any authority, and he prayed for judgment for $700 against plaintiff and Ho Williams#

Lemieux Brother» & Co* alao intervened alleging that they had paid the $700 to Mo Williams without the authority of Lemieux and prayed for judgment in their favor#

On February 7th, 1919, the defendant, Mrs# lemieux,filed a supplemental answer In which she alleged that she had now learned that on October 6th, 1917 the plaintiff was not the sole owner of the property she offered to sell but that she owned only one half of it, and that the other half was owned by four other parties, who sold it on December 3rd, 1917*

On the ferial of the oase, the plaintiff moved to stride out the supplemental answer on the ground that it changed the issue and oontradicted the admission contained in Mrs# lemieux answer# inasmuch as the allegations of the supplemental answer, will have no influence on our judgment, we shall not consider th# motion#

In the further progress of the trial the following admission was made:

«It is admitted that if Mrs# Hook, the plaintiff, were present and plaoed on the stand as a witness, she would testify that on October 26th, 1917, when Mrs# lemieux, the defendant, waived formal tender of title, she was ready to tender title of the property covered by the agreement, and that the tender would have been of property owned in indivisión by herself and her children, all of whom are majors, in which tender of title her said children would have joined; it being understood that Mrs# Huok was representing herself and her children in the sale of the property and had acted for herself and her children in the sale of the property# And it is also agreed that Mrs# Huok did not hold any written power of attorney from her ohildren. This admission is made subject to the objection of counsel for defendant, Mrs# lemieux, that such, transaction concerned conveyance of real estate, and, being purely by parol, is inadmissible# (Ehe Court# Which objection is maintained by the Court# Counsel for defendant and for the intervenors states that all the defensas prai-sented in this suit are waived, except that presented by the supplemental answer. On behalf of R. Mo Williams, It is admitted that there was an understanding had between Mrs# Lemieux and Me Williams that his commission in the sale should be One Hundred Dollars ($100o00); and the qwstion of the attorney’s feei in oonneotice. with Mr* mo williams’ claim is referred to the Court»*

There was judgment rejecting plaintiff’s demand» and judgment in favor of defendant» Mrs. Lemieux, against Mo Williams for $600, costs of suit against plAintiff and Mo Williams, in solido, and rejeoting the interventions of F* A. lemieux and Lemieux Bros*

From this judgment the plaintiff and Mo Williams alone have appealed*

The fundamental error of the defendant, Mrs* lemieux, ie In assuming that because the plaintiff was not the exclusive owner of the property she oould not bind harialf to sell it, and therefore the defendant was released of her obligation* In support of her position she quotes Artiole civil code 2462 (2427) whioh reads as follows t

"The sale of a thing belonging to another person is null; it may give rise to damages, whan the buyer Knew not that the thing belonged to another person»* A literal translation of C. IT., 1699*

But this nullity is only relative and in the Interest only of the purchased and of/the real owner or his creditor* 12 M. 653; 7 N. S., 96; 12 R., 625; 31 A., 415; 122 La., 983 )990); 123 La., 465; 117 La., 794, 807.

In Jefferson Saw-Mill, 122 La., 991 the Court quoted from 24the Laurent Mo* 116 who said:

»In our opinion the nullity is relative* It is established in the interest of the puichase/and against the vendor who sells a thing, the ownership of whioh it is inpossible for him to transfer to the purchaser»* Also 111, 118, See Also 15 Baudry-Lac Vc. Vente 94.

It follows that the nullity ^cf the sale cease a the moment the vendor comes into a position to transfer the title and the possession to the purchaser*

The same Laurent 120 says that it is the almost unanimous opinion of commentators tfca^the nullity of the sale is overcome by the confirmation of the owners, and that^jurlsprudence is in the same seaaeo 4 Dallos Codes Ann* on Art* 1599 p* 89 No. 109 and authors and decisions there quoted* See besides, 43 Dalloz Rap Gen. 520, 525 p 158 ; 1 Tro long 237 ; 8 Merlin Questions Vo. Hyp. XV Bis Ho* 6 p 141; 5 Boileux 632; 16 Duranton 179: 24 Laurent 118, 120; 18 A., 231.

We have already seen the admission made that the ooproprietors of the plaintiff would have joined in the tender of title to defendant had she not waived it*

In the oase of Bonura Mo* 7530 of this Court, we decided that a party who agrees to purchase property cannot refuse to comply beomuse there are mortgages reoorded against it, whan tba vandor daolarta bit ability and williuguaaa t* oanoal them at tba momant of passing tba aot of sala»

Iba laarnad Juiga of tba Dlstriot Conrt was in arror in refusing to raoaiTa in avldanoa the admission of tba partías that plaintiff's ooproprlators would join lnttba tendar of titla to tba defendant. It must ba notioad that tbs plaintiff aoosptad tba offer to purchase individually and not as agent of bar oojnropriatorso She bound herself personally and not as agentm of bar ooproprlators. In the oaaa of Haveny vs Hoyle, 14 Ct. App. 152 wa daoided that a party who maloas a oontraot go with another is bound personally*^, fhe admission was not intended therefore to prove plaintiff* s authority to sell in the name of and as the agent of tbs otter owners, which, of oourse, oould have been dpnt only Iq. writing. But it was to prove theAt, willingness and readiness .to 'sign the aatkof sale to the defendant and /stheir consent to oarry out their mother's oontraot* gwéa think oould have been \* done by parol, just as it would have been admissible to show by parol that plaintiff herself was present and ready to sign an aot of sale,* 13 A., 217.

We do not thinkrathatf Mo Williams is entitled to any oownisslon from ths plaintiff* The insertion in the oontraot of the obligation of Mrs* Lemieux to "pay agent’s ooraolssion", and the erasure of the words "and will pay RL Mo Williams a ooimaisslon of ___ per cent for making sale" above the signature of Mrs* Book indicate very clearly that ths oommission, if any, was to be paid by Mrs* Lemieux A?e<L and not by Mrs* Book*^Uo Williams has asked for no jad grant against Mrs* Lemiesxf on the contrary he has argos d that one defendant oaxmot recover a Judgment against a oo-defendant*

It is therefore ordered that the Judgment herein be reversed and set aside; and it is now ordered that there be Judgment in favor of plaintiff Mrs* Georgiana Krail Book and against the defendants, Mrs* Rosalie V. Lemieux wife of F« A* Lemieux and Rom 11 mo Williams, in solido, reoofcgixlng said plaintiff to be the owner of, and as such entitled to, the son of Seven H — sssi Hundred {$700*00) Dollars held én deposit by said Rom 11 Mi williams, and that he be prdered to pay over said son to the plaintiff herein*

It is further ordered that Mrs* Rosalie T* Lemieux and Rosell MO Williams be condemned in solido to pay all the costs herein*

judgment reversed

Maroh 8th, 1980*

OH APP1I0ATI0Í POR RBHBARIHC.

P2R OURIAIl:

In our original opinion and decree we did not oonaldor the possible oiaims oí tho defendant, ilo Williams, againet hla co-defendant , Mrs. Lomioux, as none were set up, and wa did not pass upon them; therefor* we saw no neoesnlty of reserving his rights, if any, against her; but at the request of Kt Williams we do nov specially reserva to hip any rights he may have against Mrs. Lemleux under the otntraat of sale mentioned In our opinion.

Me Williams I3 not entitled to he considered as a stakeholder and as suoh relieved of the payment of oosts, 50 A 1027. He did not admit owing the amount eltherto the plaintiff, Mrs. Huok, or to the defendant lire lemleux, neither did he deposit the amount in court to await the judgment of the court as to the rightful claimant.But on the contrary in his answer, he specially prayed that plaintiff's demand he rejected and"that he he permitted to retain in his hands out of said fund the amount of damages due to him hy her (plaintiff) to witt; the sum of >210 and $60 additional as attorney's fees, and that his reoonvsntlonal demand be ' reoognized against her in said amount."

We see no reason to change our opinion as far aB Mrs. lemleux is concerned.

Both applications for rehearing refused.

Hev; Orleans la, April 5th, 1920

A true oopy.

By Olerk

^pril 21st 1920


author: By his Honor John St. Paul. St. Paul, Judge.

text:
    NO. 7705.
    LIQUIDATORS SAVINGS AND HOMESTEAD SOCIETY VS CONRAD SCHMIDT, NATURAL TUTOR.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   0PIHI0R.

By his Honor John St. Paul.

Plaintiff Brought this action for slander of title, claiming fe60 damages; to wit, $90 coata, §20 Briefs, and $250 attorney's fees, all incurred in a suit to compel acceptance of title, which they lost Because of defendant's claim to a share in the property.

Befendant reconvened claiming one twenty-fourth interest in the property.

There was Judgment Below rejecting plaintiff's demand and allowing the roconventional demand of the defendant; whereupon plaintiffs appealed.

Befendant now mores to dismiss on the ground that the reconvent-ional demand involves only one twenty-fourth of the value of the property ($1900) amounting to -$79.17; and (substantially) that the main demand is frivolous or has Been aBandoned, plaintiffs having offered no evidence in support thereof.

But we find in the transoript an original Brief signed By counsel for defendant and addressed to the trial court, in which it is said; "This case hes Been Before your Honor in another form, 'namely, in the shit Brought By A. A. Tirgets vs The Prudential * Savings and Homestead Society, Ho. 118080, which record x x (and '' others) x x are now likewise Before the court.the opinion in the * Yirgets case rendered By the Court of Appeal, Judge St. Paul said; etc"

And By reference to a copy of an opinion of this court annexed and made part thereof, it appears that the quotation given Is taken from the opinion of this court in the same case on appeal (IfoyTN2^ of our dicket), the said case Being the very suit to compel acceptance of title which plaintiffs, lost as aforesaid.

We have therefore the admission that the suit to compel acceptance of title was Brought By plaintiffs and lost as aforesaid; c-.nd this court is quite competent (legally speaking) to fix the value of the attorneys’ fees therein, part of which were, rendered under our own eyes- ^, &f****-i¿. — . j S'/ &*>-' ° /

The claim for damages is therefore not frivolous and has not been abandoned, and v/e have jurisdiction thereof.

As to the reconventional demend,that follows the main demand (Constitution, Art.^*?T).

Motion Denied.

New Orleans La, November 10th, 1919.

opimoii.

St. Paul, Judge.

Plaintiff 3ued for slander of title, and defendant reconvened claiming ownership for his ward. The basis of defendant's claim is the nullity of a certain sale purporting to convey at private sale the minor's former interest in the property to one of her co-owners through whom plaintiff derives title.

The sole ground of nullity 3et up in the pleadings (reconventional demand par. 7) is that the alleged sale, being only of the minor's interest and not of the whole property, was not a sale to effect a partition within the meaning of act 35 of 1878 (116 La 755, 124 La 610, 128 La 503 ).

But under the ruling in Mc Namara vs Marx, 136 La 159, that nullity has been cured by the prescription of six months provided by Act 53 of 1912, and applicable to minors as well as majors.

The judgment appealed from is therefore reversed, and it is now ordered that the defendant's reconvontional demand and claim of ownership be rejeoted at his oost in both oourts.

Judgment Reversed.

New Orleans La, April 1920


text:
    Charlee F. Claiborne, Judge.
    John Bergstrom vs. Henry Spellman.
    No. 7708.
    October 23d, 1919.
   CHARLES F. CLAIBORNE, JUDGE.

On motion to dismiss.

Prom a judgment against him, the plaintiff on June 26th. obtained an order for a devolutive appeal returnable to this Court on July 22d, 1915. He filed his appeal bond in the District Court on July 23d, 1919^and filed his transcript in this Court on July 24tii.0n Jaly 28th, 1919, the defendant ana appellee roved to dismiss this appeal on the following grounds:

lo "that the oond herein was filed the day after t'te appeal was made returnable; "and

2o "that the bond filed herein is inconsistent with the motion of appeal filed herein".

Tfr|j liftnt Tfiji r tiitTI o na .iftjn ii imiTTh i

lo The apnellee has filed a orief, but has quoted no authority in support of his motion. Although the order made the appeal returnable on July 22d, yet under^the Jur^-prudence, the appellant had until July to file his transcript. It has been held that the appeal will be maintained provided the bond be filed at any time oefore the return day allowed by law. Glover vs. Taylor, 38 A., 634. In the case of Bouligny vs. White, 5 A., 31, the appellant obtained an order for a devolutive appeal returnable on May 7th; the appeal bond was filed May 10th, and the transcript May 12th, or within three judicial days after the return day fixed in the order. The Supreme Court decided that the bond had oeen filed in time inasmuch as it had been filed within the three judicial days of grace allowed by law after the return day. Also 14 A., 201.

An appeal T?ond is in time if filed on the last da£ on which the record could be filed. 1 La. Dig. p 433; Foreman vs, Francis; Bryan vs. Lange, Manning’s Unrep. Cas., 337, 341,

2o The inconsistency Between tne motion of appeal and the bond is said to ce estábil bed «y the recial in the bond, dated and filed July Cod, tv i the appellant k'-'S "this day filed a ^evolutive appeal", v** 1 e the ap >eal —as taken June 26th, tt t:'.e oond t-.ereby r h-'rs to another order of appeal, and that tne two are not i entified the one *ith the other. There was only one order of • ^peal and one bond filed in this case, therefore, there can be no douut that t3~e only bond filed was furnished in accordance with the only order granted. The bond is otherwise identified wish the order oy the number and title of the suit, the na-.es of the parties and of the surety, the date of the judgnont er.d the amount of the bond fixed by the order of Court. It has been held that where the appeal bond is sufficiently identified with the judgment appealed from the appeal will not oe dismissed 'on account of erasures and interlineations which cannot effect the liability of the surety. 119 La., 961.

"A-i error in recítr :-f tr e date of the judgment appealed from will not vitiate the appeal bond, the judgment being otherwise unmistakably identified". 111 La., 766.

Lotioi. to dismiss denied.

October 23rd, 1919.


author: Bt Dintelspiel, J.

text:
    Court of Appeal -- Parish of Orleans
    No. 7708
    John Bergstrom versus Henry Spillman
    By Flnkel spiel, -T.
   Bt Dintelspiel, J.

This suit is instituted claiming damages in the sum of $1500.00, which plaintiff asserts he has suffered by reason of having oeen publicly defamed by defendant,•Spillman, now deceased. The defamation consisting in plaintiff having frequently been called vile and vulgar names by defendant in the presence of a number of witnesses.

The damages claimed by plaintiff is to recover for the shame, humiliation and obloquy, alleged to have been suffered by him through the defamation of his character by the defendant, Spillman.

The petition in this case was filed in the Civil District Court on the 8th of October, 1914, and on the same day a citation and a copy of the petition was issued by the Cleric of Court, same was received by the Sheriff on bctober 12, 1914. neither the citation nor the copy of petition was served upon the defendant Spillman, who, as alleged in the supplemental petition filed in this case on September 2, 1915, had died, but whose succession had been opened, and in which succession a testamentary executri» had been appointed, and who by this supplemental petition was made a party defendant in this suit.

The record further shov/s that on September 2, 191 , a citation and a copy of the supplemental petition was issued by the Clerk of the Civil District Court, directed to the Succession of Henry Spillman, through Eloise Spillman, Testamentary Executrix, and on September 2, 1915, the said citation and supplemental petition, as well as the original citation and the original petition, were personally served on said Testamentary Exeoutrix^on the 6th of September, 1915* The Executrix filed exceptions to the suit, relying chiefly on the exception that no valid citation had issued in thhs-cause. These exceptions do not appear to have been fixed for trial until December 18, 1918, more than three years thereafter, and were tried on December 30th of the same year, and the exception to the validity of the citation maintained and citation annulled.

Subsequently, on July 31, 1919, a new oitation was issued, which was served upon the same day, also upon the Testamentary Executrix of the Succession. On February 3, 1919, the defendant Executrix further exoepted to plaintiff's petition, first on the ground that the same discloses no cause of action against the estate, and upon the further ground, second, that the action sued on is prescribed by the prescription of one year.

The plea of prescription having been maintained by the Judge of the Court a quo, the plaintiff has appealed to this Court.

There is nothing shown in this record to indioate why the first exception as to the validity of the oitation of September 2, 1915, was maintained by the Judge a quo, but as both counsel in their briefs set up the faot that tame «as held to be invalid for the reason that the Clerk of the Civil District Court failed to insert the number 5 after the printed 191 shown or. the face of the citation, and which was to indicate the year 3n which same had been issued, ar.J for that reason alone the Judge caintained the nullity of the oitation.

In as much as plaintiff herein nade no objection to the Judgment of the Judge a quo decreeing citation null, but on the contrary has .-.oqui*ced In said Judgment and bad a new citation to issue, we are not called -pon to pass upon the correctness vel non of the ristrict Court's action upon ;hat issue

The record in thi» case aleo falla to enlighten u§ aa to the reaaon for which the Judge a quo maintained the exception of prescription, but again referring to the briefa filed in thia suit, we find aaid exception was maintained for the reaaon that the original oitation having been declared invalid or null, there had been no oitation whatever until that of January 31, 1S19, which having been aerved more than five year3 after the cauae of action ie aaid to have accrued, and more than four yeara after the filing of the original petition, therefore came wi'thin the prescription of one year, aa «at out by. Civil Code for instituting suits of this charactar.

Counsel for defendant in support of the ruling of the "curt a quo rel! «■« mainly upon the oaae of Schwartz vs. Lake, reported in 101 l.,-o3, libere the Court held: "That a citition not signal by the clerk was r.o oitation at all, hnr.oe could net interrupt prescription."

A careful reading of that -decision, and particularly the citation itself, copy of which in full is set out in the opinion of the Court, shows that not only was that citation not signed by the clerk, 'out not a single date had been filled in by him *nl therefore thia citation waa properly held by the to have been no citation whatsoever •-nl naturally -could not serve us an interruption of prescription.

Tn the r.ohvfarta case above r ef erred to, the Court did make a distinction between citations serving as a basis «for judgment and citations for the purpose of interrupting prescription, and in so doing pointing out a long line of the Court's opinions, none of which were ever overruled by the Court, but the judgment in the Schwartz case being based only on the ground that the oitation in question had not been signed by the clerk, notwithstanding the fact that it also had specially called to its attention that the same citation hors no date whatsoever. Therefore, it is sc very doubtful question, in our opinion, had the absence of date from the Sclv.-arta citation, been the only question involved, whether or not the Court would have followed the long line of decisions referred to by it and held that such a citation, though net technically perfect in form, was nevertheless sufficient for the purpose of interrupting prescription.

As a matter of faot, since the decision relied upon by oounsel for defendant, the Supreme Court has had ocoasion to pass upon a number of citations which have not strictly complied with the requirements of Article 179 of the Code of Practice, and in each of the cases referred to the Court maintained the citation sufficient for the purpose of interrupting prescription. 118 La. 344-494; 132 La. 873.

The only fault or informality in the citation issued in this case is the absence of the number 5 after the printed 191. Otherwise, it is perfect as to form and in everyAespect, both the day, the month being correctly set ouA®W,t2ie return of the Sheriff, which shows the day, month S V and year that same was served. Added to this is the fact that this citation was issued with a supplemental petition, the sole object of whioh was to make proper parties to this suit after the death of the defendant, and at the time it wa3 served the original citation, perfect in every respect, was also served upon the Testamentary Executrix of this Suooesslon.

Under these circumstances, as determined by us, and in view of the long line of decisions extending from 10 Rob. 133 to 133 La. 873, we oannot hold that the citation complained of was so utterly defeotive as to form, so as to prevent it as acting as an interruption of prescription.

For the reasons herein assigned, it is ordered, adjudged and decreed that the judgment of the District Court, maintaining the plea of prescription of one year, set up 'oy the Executrix, Eloise Spillman, in the Succession of Henry Spillman, be annulled, set aiide and reversed; and it is further ordered, adjudged and decreed that this case he remanded to the District Court for further proceedings, according to lavf, and the oosts of this Court to be paid by Eloise Spillman, the Executrix of the Succession of Henry Spillman. Costs of the District Court to await final determination of the suit.

Judgment reversed; case remanded.


author: St. Paul, Ju&a-e.

text:
      NO. 7709.
    GAIENNIE COMPANY, LTD. VS HENRY H. MALONEY, TUTOR &C.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.
   0 P I U I O Ü

St. Paul, Ju&a-e.

Some six years ago defendant received formal notice to onneot certain promises with the public sewerage svstem within a 'brief delav, under the r»in of fine and imprisonment for failure, as charged in the petition (•nnrao*r«ph 6) »nd «omitted in the answer, the premises actually belonged to defendant's minor ot llú:-'1-..

tiiV, at defendant’s request, did the work and agreed to ««cent navment in monthly instalments. >’or convenience notes were taken, signed bv defendant individually: hut the uncontradicted evidence is that there *bs no intention to accept defendant’s personal obligation in extinguishment of the clf’im *»«•«• iro-t the owners of the rrooerty. And to Ü'in day nothing h*»®. been p*id either upon the notes or otherwise.

under the circumstances it is well settled that plaintiff mnv recover against these minors* for the p.itring of his personal note bv a tutor for a debt of the minor does not novate the debt, but onlv adds his personal obligation to that of the wonir. Smith vs Brown, 12 An ?99* Leonard vs iiudson, 12 An 840* i>'ord vs Miller, IB An .‘>70. 1‘here is no oueation here of borrowing qjoney for the minors, or exceeding their revenues.

Of course the same debt cannot be recovered twice* but in ■fchis c»a« ^he^e is no oossibilitv of such happening. lor when this suit was filed the notes were oveidue and still in the hands of the original holder* at this writing thev are even prescribed. Had the notes been disposed of the case mi^ht be different* Goolfolk vs Degelos, 24 An 199.

The dudPiaent ao-iealed from is therefore affirmed.

New Orleans, La, April 5th, 1920


author: T3y lUnkalapial, J.

text:
    No. 7710
    Court of Appeal - Parish of Orleans
    State ex rel., Mrs. Santo Coltraro versus City of New Orleans
    3y Dinkelsplel, J.
   T3y lUnkalapial, J.

T'ii3 controversy arises out of a mandamus proceeding instituted by plaintiff against the City of He® Orleans, also the defendant in this case, wherein the latter, the City of New Orleans, refused to accept City taxes due it by the plaintiff on certain properties described by her in her petition without paying a certain paving bill, also due by her, and in failing to receive the taxes proper, mandamus proceedings were' instituted and both in the Court a quo and in this Court the mandamus was made peremptory (see No. 7313 of the dooket of this Court).

Tie present aotion is brought by plaintiff, Mrs. Santo Coltraro, in order to recover from the defendant, the City of New Orleans, the sum of §500.00, whioh she claims is based upon damages said to have been suffered by her through the fact that she was compelled to institute proceedings, above sat forth, against the City of New Orleans in order to compel 3aid City to accept from her the taxes levied without the payment of the paving bill above referred to for the year 1917.

She avers that the sum of §250.00 is the amount of damages due her personally on account of the worry, annoyanoe, loss of.time, whioh she alleges she suffered through the aots of the City, as aforesaid, and the further sum of §350.00 claimed to be due ber for attorney's fees, she having been oompelled to employ an attorney to defend her rights successfully in said aforementioned suit.

The defendant, the City of New Orleans, filed an exoeption of no cause of aotion, and this exception being maintained by his Honor, the Judge a quo, hence this appeal.

A careful examination of the authorities satisfies us that her claim is not entitled to serious consideration. Plaintiff is no more entitled to recover damages as claimco than would, any other litigant who was compelled to resort to the oourts to enforce rights which otherwise thsy could not do, except through judioial proceedings.

It cannot be said that the defendant, the City of New Orleans, either aoted maliolouely or wantonly, nor is it eo asserted, nor is it alleged that any officer of the City aoted in bad faith and without probable cause; hence to hold the municipality 4 in damages for an act done under its governmental powers is, in our opinion, wholly unjustifiable, and the aotion taken in this case by the City claiming that the taxes and paving bills must be paid one and the same time, whilst erroneous as this Court held, yet gives no cr.ua3 for an aotion in damages asserted by plaintiff herein.

Our Supreme Court has held frequently that actions for damages of this oharaoter in attempting to enforce rights, as claimed by plaintiff herein, are not of that character whioh give rise to damages for worry of mind or for maintaining the rights asserted or for attorney's fees. Sage v. Cain, 14 La. 193.

Nor have our oourts favored the allowance of attorney's fíes as a part of damages to injuries either to persons or to properties, except in oases specifically provided by our laws. 35 Ann. 1016; 36 Ann. 133; 39 Ann. 930; 51 Ann. 456; 124 La. 870.

His Honor, the judge of the court a quo, maintained the exception of no cause of action, and in which judgment we concur.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the court a quo be affirmed, plaintiff to pay the costs of both oourts.

Judgment affirmed.


author: 3t. Paul, J*n P-Q.

text:
    NO. 7712.
    ALBERT WEIBLEN MARBLE & GRANITE CO. VS WALTER VAN BENTHUYSEN.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.
   uno n.

3t. Paul, J*n P-Q.

Phis case i ivaiv* s onlv a "ves+i'-u o-" fact. KL«i* itiff ^ cartón«t«d to f-'ni-h a-n-’ erect for defendant a markle mantel, and did finish and start to erect such a mantel; but defendant stopped the work and refused to nay for it on the ground that the mantel was not as contracted for.

fJ?he burden of defendants main complaint, and the nuroort of his own testimony and that of his principal witness in supnor.t thereof, cannot be better stated than by giving the impression produced on the mind of an architect whom he called in to examine and nass unon the mantel, and who wrote defendant as follows;

"x x x r I understand from you that the new mantel was to be a reproduction in detaP and workmanshin and finish of that in the drawing room, excepting- that the elaborate carvings in panels and wreaths «round the columns were to be omitted: x x x x x the designer* has enti^elv lost sight of the spirit of the design and there is only th< vaguest resemblance to the original*"

Plaintiff eumhaticallv denies that "the new mantel was to be a reproduction in detail and workmanship and finish of th«+ in the drawing-room, e,-ce^tin*- etc", but on the contrary, says that the mantel was to be finished and erected according to « detailed sketch submitted to and «nvnroved bv defendant* and he «nd his •nrincinal witness so swo«r.

t>0 that It almolv a "uastlon o+ what taatiwony as are to accent.

I.

wo accent the testimony on "behalf of nlainóiff and for these reasons oarticularly. Admittedly several sketohes were submitted to and er*nii#ed by defendant* and these show on thei^ face changes not only in details but ALSO in style and construction, all of which are so nromineht as to be noticeable at a «lance; the first, even bears a uencil memorandum showing that the very height of the mantel was to be reduced from nearly five feetoto less than four* which notation was evidentlv made whilst this sketch was under discussion. It is uribelivable therefore that these changes were not observed. It is also unbeliwable that, a skill for unskilled J dr**ft»m*n **honl* ví’ve three, rucees*ive efforts to s’/'toh a simple ■ physio.-I o'1 ject *• Adin*. right bef-' *e him, and ve v e so oii'Ti ly fail*’ ' . the attempt nc t0 produced "onlv the so vaguest res^mblanoe to the original.” Thi* i~ ob^io^s -s to have drawn from one witness when shown a working drawing, the alleged protest, ’I do not see the neoe*sitv of that since vou have your model right here.”

II.

1+ is olaimed that, plaintiff admitted he h«d not. carried out **s contract, «nd offered to take back his first f«ilu-e and make another (mantel not failure).

Plaintiff **vs he made thie offer n’*»,erv ironically", end this is more th*n likelyj he h«d not nsreed to duplicate the drnwinir room mantel, "tid had Bald from the fi'itélf start that he could not duplicate it’ for the uric© which defendant wished to pay and hence could never any serióse intention to do ao; th« whole testimony shows that he was plainly in no such humor.

But even if seriouslv made his offer was clearlv one of compromise, which must, fall for two reasons 1* It was not in writing (0. 0. 3071), and 2. It was rejeoted (Sec Tietter of do* 17.)

I III.

For the rest, the complaint about material and workmanship sterns nurelv an afterthought. Defendant saw both, when the work was about finished but not yet set up* and yet made no complaint about either; it h»poene<T ho**awer that when it was Oui»i* up it did not (according to the t»*te of defendant) hn^Tnoni'i" with its surroundin-'s, * ^'ii^lv in sise* and so the work won stopped, and now fsuits showed up plentifully where none n«d been seen oefore.

■m.- tr_i .¿d^e found for the d fenda.it* but a 4 the tAstimciv '•*«« all T.mr3*i ou" 0/ his .“'re::once fj..l ^ hesitation in disagreeing; ' ’ his finding.

Xha judgment appealed from Is therefore reversed, and It la now ordered that plaintiff have Judgment against defendant for ths a urn of Three hundred and ten dollars with legal Interest from judicial demand and ths oosta of both courts.

New Orleans, La, April 5th, 1920