author: St Paul, judge.

text:
    NO. 7315.
    GEORGE P. CAIRE. VS MUTUAL BLDG & LOAN ASS'N.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   b E í B I O U.

St Paul, judge.

She' facts of this case and the issues presented are fully Set forth in our former opinion.

t/'iO In OP1111-611 w* held, for the reasons therein given, that a promise pf sale was so far á sale as to be translative of property between the parties and put the thing at the risk of the pfomissee, although there had been no formal delivery (by deé) and no payment Of the pfloe.

Our attention had not been called to a line of decisions which we have since examined and Which appears to hold to the- contrary*

In faot these decisions hold in substance and effect that a promise of sale amounts to a sale^ only in the sense that it entitles either party to enforce-speolfio performance; but that a promise of sale is not trnas** lative of property, ahd does not change the ownership of, of dominion over the thing, even as between the parties; or put the thing at the risk of the promisees.

Mc Donald vs Aubert, 17 La 449

Bennett vs Fuller, 29 An 663

Broadwell vs Raines, 34 An 677

Thompson vs Duson, 40 An 712

Baldwin vs Morey, 41 An 1107

Collins vs Demerast, 45 An 108

Peck vs Bemiss, 10 An 160

Satterfield vs Killeen, 14 an 606

Garrett vs Crooks, 15 An 483

Knox vs Payne & Harrison, 13 An 361

In Mc Donald vs Aubert, 17 La 449 (above- cited) this Was held so true, that where a husband had during the community given a promise of sale, and after the death of his wife executed the promised deed, it was held that the latter was the only Bale and oonveyed only the husband’s interest in the community property whioh he had attempted to convey, and not that of his deceased wife.

New Orleans, La, June 4th, 1918.

Of course we are bound by these authorities and will, follow them herein.

In our former opinion we found it unneocessary to inquire into the effect of a transfer and retransfer between a Homestead Association and a borrowing member. But our enforced change of opinion as to the effect of a promise of sale obliges us now to do so.

We have carefully considered the language of the statute regulating these associations (Act 115 of 1188, p. 177 Amended by Act 244 of 1912 p. 545) and it leaves no room for any#]|j£# other oonstruotion than that suoh transfer and retransfer not only have the effect of a sale and resale so as to operate a privilege equal in rani to that of a vendor, but that suoh transfer and retransfer are in fact and in law a sale and resale for all purposes whatever.

She language of the law (Act 244 of 1912 p. 545) is as follows

" x x Suoh associations are authorized And empowered to oontraot and agree with any person to acquire or purchase from such person any property and afterwards to dispose of the same to a member, even though said agreement be made at one and the same time, and such contract and agreement shall not be considered or dealt with as a loan, but as a purchase or acquisition by the association to suoh member x x * (Italics ours)

We therefore conclude that as long as the title to such property stands in the name of the association, the latter must be considered and dealt with as the owner of the property, ana must as owner bear any loss occasioned by fortiutous events.

Our former decree is therefore set aside, the judgment appealed from is reversed, and it is now ordered that plaintifft George f. Caire, have judgment against defendant, the Kutual Building and D¿an Association for the full sum of Eleven hundre; and five Dollars ($1105.-) and the costs of both courts.


source: Caselaw Access Project

author: St Paul, Judge.

license: Public Domain

text:
    7315
    GEORGE P. CAIRE VS MUTUAL BUILDING & LOAN ASSN.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   oí isioa

St Paul, Judge.

Plaintiff claims of defendant #1105. He alleges and it is not denied; "Shat on or about the 11th day of Uarch 1915, petitioner ^entered into a written contract with the defendant, Whereby defendant was to purchase from him a certain lot of ground x x x and was to erect thereon a house according to specifications agreed upon between petitioner and the defendant, and at the completion of said house was to transfer by authentic act said lot and the improvements thereon for the sum of #8660; and petitioner was to pay in oash #650 and for the balance thereof he was to give his promissory note for #8000 secured by vendor's lien and privilege on said ground and improvements)

She evidence shows that the building was completed on July 2nd 1916; that plaintiff then accepted the same and went at onoe into physical possession thereof; but that defendant although requested to do so had failed and neglloted to make a formal deed thereof to . plaintiff up to and beyond September 29th, 1915; that on said 3eptembar S9th the building was damaged to the extent of #1105 by the great hurriaan£which swept over this City on that day.

As the property has since been formally deeded to plaintiff who has repaired the damage# at his own expense- (in a manner, and under reservation of rights, the details of whloh are not pertinent) the only question here presented is whether the lass caused by this hurricaneshould fall on plaintiff or defendant.

Ercm the foregoing it is clear that according to plaintiff's own Judicial admission there existed between him and defendant a written contract which amounted at least to a promise of sale; and that this was unconditional, except that a building was to be erected (Which was done) and that defendant was to execute a formal deed to the property and plaintiff was to pay the price or furnish his note for lb

How by Article 2462 C. C. " A promise of sale amounts to a sale when there exists a reciprocal consent of both parties as to the thing and the price thereof."

And Artiole 8466 C, C, "The sale is considered perfeot Retraen the parties, sad the property is of right acquired to the purehssor with regard to the seller, as soon as'there-exists an agreement for the object and for the prloo thereof, although the object bas not yot been delivered nor the -price paid,"

iron those two artiolos it results that as between the parties, the ownership of tho thing passes by tho aero consent and agroomnt of the parties,

from the last artiolo (8466) it is also olear that neither tho delivery of tho thing nor the MMt payment of tho prioo are suoh oondltions as are spoken of in Article 8471 C. C. and suspend tho transfer-of ownership until their fulfillment, Whloh latter artiolo however does fjti apply to suoh things as, for ins taños, the ooapletion of a building.

Again by Article 2479 C. C. "The law considers the tradition or deliver) of immovables as always aoeoapanylmg tho public set whloh transfers the property x x x."

And by Article 8467 C. C. "As - soon as the oontraot of sale is completed the thing is at the risk of tho buyer, x x ,"

Shis however is subjeot to modification; for Instanos Article 8470 C. C. "If the seller delays to deliver tho thing and it is destroyed, oven by a fortiAitous ovont, it la he who sustains the loss, unless Jit appear certain that the fortuitous ovont would equally have oooaaloned the destruction of tho thing In the buyers possession after delivery." (Italics ours).

It ## therefore seems certain that as between himself and defendant plaintiff was the true owner of tho property from tho time tho building was oomplatod and ready for delivery; nevertheless as long as defendant failed to make a legal delivery by formally deeding the property to plaintiff, it continued to remain wholly at defendants risk except An so far as it might boi/estroyed by a fortuitous event whloh would equally have destroyed it oven had the formal deed to plaintiff been executed.

New Orleans, La, April 1918.

But if this last there Is not the slightest doubt; a formal title ih the name of plaintiff would oertainly not have saved this property from the fury of the storm.

We are therefore of opinion that the loss must fall on plaintiff.

It is said however that because the so called "sale and resale" between Homestead Association and their borrowers have been given by statute the effect of sales in so far that a vendor's privilege results therefrom, therefore they are sales in all' respects.

We shall not go at length into this proposition, since we have dealt with the transaction herein involved exactly as if defendant had originally acquired the property from someone other than plaintiff being oareful to say that plaintiff became the owner of the property when the building was completed and ready for delivery and by virtue of the written promise of sale which he sets up in his petition. In other words we have dealt with the transfer from plaintiff to defendants as if it had been a real sale, and the agreement to retransfer as if it were an original and independant promise of sale.

But simply for the purpose of keeping the record straight, as it were,and not because it has any bearing on the oase, we wish it understood that, we are not prepared at this time to adopt the view that merely because by statute certain results are made to flow from certain transactions, other results must also flow from them, which other results may not at all have been in contemplation of the lawmakers.

She judgment appealed from is therefore affirmed.

Affirmed.


author: CHARLES P. CLAIBORNE, JUDGE.

text:
    JACKSON BREWING CO., VS JOSEPH DI LEO
    NO. 7317.
    CHARLES P. CLAIBORNE, JUDGE.
    May 20th. 1918
   CHARLES P. CLAIBORNE, JUDGE.

This is a contest between an attaching creditor and a creditor pretending to be a pledge creditor.

On March 25th. 1915, A. Patorno & Son filed suit against D1 fjeo, issued an attachment, and seized the contents' of a bar-room, all except the State and City licenses which could not he found. On the same day, the plaintiff herein, alleging that it was the pledgee of the two licenses held by defendant to carry on the saloon business and entitled to a privilege thereon, sued the defendant and obtained an order for the sequestration of the two licenses. The defendant could not .be found and was not cited.

Later on, the two licenses were surrendered to the Sheriff for seizure. By consent- of both seizing creditors the licenses were sold and the proceeds are now in the 'Sheriff's hands.-

The» plaintiff herein took a rule against A. Patorno & Son and others, claiming rights on said proceeds, to show cause why the Civil Sheriff should not turn Over to it the proceeds of said sale.

The defendant was not made a party to said rule.

The rule was made absolute and A. Patorno & Son have appealed.

We have failed to see in the record any judgment in favor of A. Patorno & Son or of the plaintiff herein the Jackson Brewing Company, and we are informed that there is none.

As we have stated before, the defendant Joseph Di Leo was npt cited in this case, nor in the rule to distribute the proceeds of sale of the licenses alleged to be his property nor did he make any appearance. Under the circumstances we fail to perceive how any Judgment can be rendered affecting his property. "A judgment rendered against a party who has neither been cited nor appeared is. an absolute nullity which may be invoked by any one interested". 1 H. D. 245. Our only course is to remand the case. C. P. 906.

It is therefore ordered that the judgment herein rendered on January 2nd. 1918 be reversed and avoided and that this case be remanded to be proceeded with according to law, the costs of appeal to be paid by the plaintiff herein, and the costs of the District Court to await the final determination of the cause.

May 20th. 1918.


text:
    NO. 7322
    OTTO SIZELER VS J. S. USNER
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION.

Writ of certiorari and prohibition on Hon Val J. Stentz, judge of the First City Court for the Darish of Orleans. St. Paul J.

This is an application for a writ of prohibition. Relator. Otto Sizeler, obtained a judgment against defendant Usner, and issued a garnishment to zjmmermann Tailoring Co. The latter failed to answer and judgment went against it "pro confesso" on January 2nd 1918.

On January 3th, 1918, and therefore before the judgment became final and executory (C. D. 1139 R.S. 2088), the garnishee filed its answer to the interrogatories denying any indebtedness to the defendant, and apnlied for a new trial on the ground that it had "inadvertently and with out fault failed to answer the interrogatories propounded to it.”

Upon a rule to show cause and after due hearing the judge of the City Court granted a new trial and set aside the judgment "pro confesso".

We are not concerned with the correctness of this judgment; the only question involved is whether it was within the judicial power of the judge to render such an order. If it was, it must stand; if it was not, we must set it aside.

We are satisfied the City judge acted well within his powers. The judgment was not final and it was within his discretion to allow a new trial. (State vs Justice 40 An 52)

In Flder vs Rogers, 11 An 606, the Supreme Court held that it was within,the sound discretion of the judge to allow a garnishee to answer even after the interrogatories had been taken "pro confessis", provided the judgment had not yet become final.

The ruling in that case was cited and approved in the following cases, Rose vs Whaley, 14 An 374, Marchand vs Noyes, 33 An 882 Cusachs vs Dugue, 113 La 273. See also Monroe Grocer Co vs Derdue, 123 La 373, 380.

New Orleans, La. March 1918.

Rulings to the same effect were made in Hennen vs Forget, 27 An 381 and Tapp vs Green. 22 An 42.

The only case apparently to the contrary is Warren vs Copp,. 1*8 An 810. But it is only apparently so, for in that case the judgment which the Supreme Court refuse to permit to be set aside, was one which had become final before the application for relief was made, and which had'therefore gone out of and beyond the discretion and even the power of the judge.

It is therefore ordered that the Writ herein issued be recalled, and the demand of the Relator is rejected at his cost.


text:
    MRS. M. SIMONEAUX VS LEBERMUTH & ISRAEL PLANTING CO., LTD.
    NO. 7 3 2 3
    CHARLES F. CLAIBORNE, JUDGE.
    May 20th. 1918.


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    MRS. M. SIMONEAUX VS LEBERMUTH & ISRAEL PLANTING CO., LTD.
    NO. 7323
   CHARLES F. CLAIBORNE, JUDGE.

This is a suit for damages for cutting timber on plaintiff's lands.

The plaintiff alleged "that she is the owner of the Faustina Plantation, a sugar plantation situated in the Parish of St. James, Louisiana, which plantation contains a small tract of timber land sufficient to furnish wood for said plantation"; that the defendants, with full knowledge of petitioner's ownership, trespassed upon the "lands on which the said small tract of timber is or was and on April 1916 cut therefrom sixty trees ranging in diameter from six to thirty inches" of the value of #500.00; that the defendants "were notified, not to enter upon petitioner’s said land and cut said timber but not — withstanding said notification given by petitioner's manager, and in utter disregard of the rights of petitioner^they did enter and trespass upon petitioner's said lands and cut therefrom the number of trees as above alleged, for which plaintiff claims^SOO.OO punitory damages.

The defendants excepted to the petition "on the ground that it is too general^vague, and indefinite to enable exceptor to file its defense.That plaintiff utterly and signally falls to set out a description of the land, its location, and situation on which it is claimed the timber has been cut;.nor does plaintiff even give any description at all of the plantation of which it is claimed the small tract is alleged to be a part."

The exception was submitted without argument and was overruled. The exception is pressed in thi3 Court. The want of description of the plantation was not necessary, after the name and locality had been given, in Phelan vs Wilson 114 La. 813 (823) the Court said: "The description of a residence or plantation by name and locality is sufficient", quoting a long list of authorities. In the case of HcManua vs Stevens 10A 177, relied on by defendants, the property vas described as "a tract of land in the parish of East Feliciana".

from The "location and situation Vwhich defendants were charged to have cut the timber was sufficiently described as "the small tract of timber land contained vithln the plantation”. There could have been no aabignlty as to the spot from which the timber was said to have been cut. Besides, the date of the cutting was given.

The defendants then filed the exception mat the petition set forth no right or cause of action. On the same day they filed an answer in which they admitted that plaintiff owned the Faustina Plantation and denied all the other allegations of the petition.

By agreement of counsel the ease was ordered fixed for trial for June 13th. By going to trial on the merits the defendants waived the' right to a separate judgment on their exception of no oause of action. 139La. 51,.

There was judgment for plaintiff for (300.00 *nd defendants have appealed.

The plaintiff has answered the appeal asking for an increase of the damages.

The following witnesses testify positively to the cutting of trees inside of the lines of plaintiff’s property, vis: Harry Alienan, pus A1lemán^and Henry Esneault.

The following witnesses testify that they counted the number of trees cut and that they amounted to sixty, vis: A.A. Robert, L. R. Ferohand and 0. A. Robert, and Harry Alienan.

The following witnesses testify that the cutting was done by employees of the defendant company, and that the wood was h hauled away in its carts, viz: Harry Alienan, Gusa Alloman and Henry Esneault.

The only witness for the defense was Eugene Folse, overseer for the defendants. He testifies that "there never was any wood out on the other side of the defendant's lines. But he add¿ that he had been told that some trees had been cut on plaintiff’s land, but that he "never went back there to see it*.

At any rate his testimony is overcome by the numerous witnesses quoted above. It availed him nothing that he instructed his choppers not to go beyond his lines, if they actually did. 28A 340.

This is a question of fact, and to be governed by the rule that the finding of the trial judge will not be reversed unless clearly erroneous. The rule is the more authoritative in this case, where the trial Judge, after hearing the testimony and examining the plans in evidence, announced from the bench "that in order to be fair and impartial to all parties concerned- he desired to visit and examine the lhcus before rendering judgment."

The Judge then proceeded to the "locus" where the trees had been felled, after notice to both parties, and, on his return, heard argument, prepared lengthy reasons, and rendered Judgment in favor' of plaintiff. We have read those reasons and they appear to us supported by the evidence and the law of the Case.

The value of the 60 trees is sworn to as $500.00 by several witnesses. But the judge reduced it to $300.00 fixing the value of eaoh tree at $5.00. For this there is authority. 28A 340; 25A 230. His knowledge of such matters Is superior to ours.

Plaintiff prays for vindictive damages. But the evidence is not sufficient to establish with certainty that defendants knew that they were trespassing upon plaintiff's lands. In such a case a defendant can be charged only with the actual value of the timber cut. 7 Rob 20; 2a 238; 7A 116; 35A 811; 121 La. 627.

During the trial of the case the defendants asked for a continuance on the ground that they were taken by surprise by the testimony of the plaintiff as to the locality of the trespass. The judge refused. We cannot say that he erred. The testimony shows that the defendants had been informed-before. the suit that plaintiff charged them with cutting timber at that very locality.

May 20th. 1918.

The defendants prayed for a new trial on the ground mainly that by refusing the continuance, they had been deprived of the advantage of producing the testimony of four witnesses who would have contradicted plaintiff's witnesses on the question of cutting the timber and the quantity out. Be annexed their affidavits to his motion. But the law requires the litigant's affidavit, and not that of the witnesses. C. P.561, 7 La. 84; 16 La. 80; 24 706, 1021. These were four wood-choppers who had been employed In larch 1016 by Bugene Poise, overseer of the defendants, to chop wood in the neighborhood of the locality upon which they are accused of having trespassed. These witnesses had not been sumoned for the trial of the case, no reason had been given why they had not been, and certainly, defendants sere aware of what testimony they could give, and could not claim that It was testimony "discovered since the trial, which they could not, with due diligence have obtained before”* C. P. 560.

At the time the application for the new trial was made, the Judge had already himself, in person, wade a personal examination of the locality, and was evidently of the opinion, that the new testimony could only be conflicting and could not change his mind.

Judgment affirmed


author: St. Paul, Judge.

text:
    7338
    JOSEPH YATTER VS WID. JOHN KUHLMAN ET AL
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.

      New Orleans, La, June 4th, 1918.
   opinion.

St. Paul, Judge.

\ Plaintiff sues to annul a lease on the ground that as the reaull oía storm the roof of the leased premises was so badly damaged that the plaoe became uninhabitable.

The defense is a general denial, and defendants have reconvened tor the rent.

The case presents only issues of faot; there was Judgment below for the defendants as prayed for, and plaintiff has appealed*

The evidence shows that as the result of a sudden storm the rod of the building was slightly damaged and considerable water leaked in.

Plaintiff immediately notified the defendants, who attended to the matter at once. The roof was repaired at a trifling oost, and has not leaked since.

A few days afterwards plaintiff presented a olaim for alleged damages to his furniture, eto, caused by this sudden storm, whioh damages defendant very properly refused to pay; and some weeks later plaintiff removed from the premises and filed this suit.

Plaintiffs claim, appears to us wholly without merit, and we thin the district judge properly rejected his demand and condemned him for the rent.

Judgment Affirmed.


text:
    MRS. A. F. SIMONIN VS MR. & MRS. JULIUS WYLER
    NO. 7339
    CHARLES F. CLAIBORNE, JUDGE.
    June 4th. 1918.
   CHARLES F. CLAIBORNE, JUDGE.

Plaintiff brings this suit against her neighbor to enjoin her from tearing down the partition fence between them and moving it over to her side.

She alleged that she was the owner of the property No. 536 Jackson Avenue and that the defendant Mrs. Wyler was the owner of the contiguous property Ho. 530.Jackson Avenue. That between the two properties there existed a proper legal fence built upon the division line since the year 1910; that without legal right the defendant had threatened to tear down said fence and to rebuild another one ón a different line encroaching upon her property; that the removal of said fence would prevent her from opening the windows of her house and cause her a damage of $1000.00; that the defendant will proceed to carry out her threats unless restrained by an injunction. She prayed for an injunction restraining the defendant from demolishing and removing said.fence or changing its present location, and for $1000.00 damages.

The writ issued as prayed for.

The defendant then filed the following motion:

"On motion of Edgar M. Cahn and Theodore A. Sohuber, attorneys for Mrs. Margaret Glese wife of Julius Wyler and the said Julius Wyler, defendants herein and on suggesting to the court that the preliminary writ of injunction herein sued out by the plaintiff was wrongfully obtained, and that said writ should be dissolved for the following reasons: That the bond herein filed by the plaintiff is wholly ineffect ual, defective, and is not such a bond as is required by law; that the allegations and averments of plaintiff's petition upon which said writ of injunction issued, are false and untrue; that in truth and in fact, the only thing that movers in tended to do was to erect a proper fence on the correct and legal line dividing the plaintiff's property from that uf defendants, and mover did not intend to encroach In any way upon any of the rights or property of the plaintiff^ It is ordered by the Court that the plaintiff herein show cause on the 4th. day of May 1917 at 11 o'clock A. U. why the writ of injunction herein sued out by the plaintiff should not be dissolved and set aside with full reservation of the right of defendants to sue hereafter for whatever damages they may have suffered on account of the wrongful issuance of said writ".

On the return day of the rule, May 4th. 1917, Mr. Theodore A. Schuber, thus testifies as to what took place:

"Both counsel for plaintiff and defendants were present In this Court, Hr. HcLougblln as attorney for plaintiff herein together with Hr. cahn and myself as attorneys for the defendants, agreed at that time that the only question before the court was whether or not tbe dividing line on which we proposed to erect this fence was the correct dividing line between the two properties and ths^followlng^>rder of court appointing an expert surveyor herein was agreed to and drawn up and written by both counsel for plaintiff and counsel for defendants".

The note of evidence shows that at this point Mr. Mclonghlln objected"to any parole evidence concerning any of these negotiations between counsel, on the ground that the only matter before the Court is whether or not Mr. Vaddlll has fixed tbe proper dividing line between the properties".

The order of May 4th. above referred to Is as follows:

"The rule for dissolution of the writ of Injunction came up this day before this court, and the Court being of the opinion that It will be unable to xwwlw rule properly on same without having the benefit of expert advice on tbe matters Involved^ It is ordered that Frank Waddell, C. E.^be appointed as expert surveyor to take Into consideration the pleadings herein, and such evidence as the parties hereto may submit to him, for the purpose of ascertaining the correct dividing line between the properties of the plaintiff and defendants; and said expert shall then report to this court his findings thereon, with a certificate of survey showing where in his opinion the correct line is. It is further ordered that both parties be entitled to be present in person or by representative at the actual making of the survey by said expert; it is further ordered that upon the filing of said report by said expert both parties be^iven ten days notice by said expert wherein to show cause before this Court why the said report should not be accepted by the court, and made the basis of its judgment herein".

Waddill was swora as expert. He notified the attorneys for both parties to meet him on November 20th.1917 at 10 o'clock A. H. at the corner of Jackson and St. Thomas Streets as the place for beginning the survey; he there met Hr. J. J. Xcloughlln, representing Mrs. A. F. Simonin, and Mr. T. A. Schuber (attorney) and Ur. W. J. Seghers, (Surveyor) ■representing Ur. & Urs. Julius Meyer; they handed him various documents including a survey made by D. E. Seghers & Son dated February 3rd. 1911 of the Wyler property and one by Edgar Pille, dated October 14th. 1910 of the Slmonin property.

Waddell made his survey, prepared an elaborate sketch and blue print in accordance therewith, wrote out a process-verbal and report of his actions and filed them all in the court which had appointed him; notice of filing of same was acknowledged by the attorneys for the plaintiff and for the defendants; ten days elapsed after said notice and no opposition to Waddlll's report or survey was made; there uponthe defendants took a rule upon the plaintiff to Show cause why the survey and report of Waddill should not be approved and homologated and made, the basis of the judgment of the Court on the rule taken for the dissolution of the injunction.

Service of the rule was accepted by James J. McLoughlin, attorney for Mrs. Slmonin.

It was tried in presence of counsel for both sides and was made absolute. Accordingly a judgment was rendered approving the report and survey of Waddlll and malting It the Judgment of the court, sstablfshing the dividing line between the properties dff plaintiff and defendants and setting aside the injunction at the cost of plaintiff.

■ Prom this Judgment the plaintiff,through new counsel, appealed.

He charges two errors in the judgment, one of form and one of substance.

1. He says that the judgment was rendered without issue Joined inasmuch as defendant had filed no answer, and that the suit was changed into an action of boundary.

It. seems to us that the defendant alone had a right to complain that judgment was rendered before she had answered. But be that as it may, the law' and the practice justify a Judgment rendered on the merits dissolving an injunction on a rule to show causé C. P. 740,741, 742, 743.

It is true that these articles apply to injunction^ issued against an order for executory process, on the theory that they are entitled to a summary trial. But the law has not said upon what pleadings the summary trial shall be based. Jurisprudence alone has given the. right to proceed by mile to set aside an injunction on the merits. All "injunction cases" are entitled to "summary" trial under Act 243 of 1910 p 407.

In the case of Williamson vs Richardson 30A 1164 the Court said:

"The law ■ expressly authorizes a party injolned to compel the party injoining to prove the truth of the facts alleged by him in a summary manner. C. P. 741. Ho delay is specified for the party Injolned in such rule. The trial must be summary. The rule is not vague. The language used is the same as that of the Code. It was hot needful for the suit to be at issue nor to have been fixed for trial nor called. It would defeat the purposes of the rule, if instead.of trying it in á summary manner, its trial should be deferred until the suit wa3 at issue, or should be reached in its regular order on the docket. The plaintiff was correctly compelled to try the xs preliminary issue on the rule summarily'1. 105 La. 130,26A 651.

But in this case the plaintiff far from objecting to the mode of procedure, acquiesded dnd assisted in it, and provoked the judgment. It has been decided that a judgment rendered on a rule is valid "if no objection to the mode of proceedings was made at any time" Genella vs Me Murray 49A 989.

2nd. Plaintiff also complains that the surveyor erred in giving the defendant 31’5"4"jt while her title calls for only SO'S"!*").

The surveyor explains that the last measurement is an error in the title which occurred in the Succession of Mrs. Harvey on October 31st. 1864 in the Sheriff's deed to At A. Pray; and that the error of one foot was repeated in every deed of sale thereafter.

Mr. Waddill was appointed as expert for the very purpose of ascertaining'the rights of each party as to their lots and for correcting any error that might have occurred to disturb the titles to each. But the plaintiff has no right to complain that the surveyor's report attributes to Mrs. Wayler more land than her title calls for, as long as the report does not deprive her of the full exteñ¿to which she is entitled by her title.

We are of opinion that the judgment of the District Court has done justice to both parties.

Interest relpublioae ut sit finis liti&ra.

Judgment affirmed

June 4th. 1918.


author: St. Paul Judge.

text:
    NO. 7348
    MISS MARY MC MANIGLE VS MILE A. BILLET

    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   O f I I 1 O I.

St. Paul Judge.

Plaintiff brings this possessor? aotion alleging that she was in physioal possession of certain immovable# property as pwnsr fow more than a year; that within a year defendant has physically taken possession of a portion thereof whioh he refuses to restore: that the value of said property is more than $100 and less than $8000.

Defendant excepted below that the petition diados#d no oause of aotion: that plaintiff's remedy was solely by aotion of boundary. The exception was maintained and plaintiff appealed.

Defendant, appellee here, moves to dldmlss the appeal for want of jurisdiction in the oourt, the value of the possession (whloh alone is in controversy) not being alleged or shown.

1.

On the Motion to Dismiss: The appellee assumes that the law which governs, is Article 98 of the Constitution of 1898 giving the Courts of Appeal jurisdiction of suoh controversies only as involve\ more than $100 and lesa than $8000: but by an unreported ruling of the Supreme Court the jurisdiction of the Courts of Appeal is governed by the corresponding artiole of the Constitution of 1913, under Whloh the jurisdiction of Courts of Appeal shall extend to "all oases, civil and probate, of whioh the District Courts have exdualve original jurisdiction and of whloh the Supreme Court is not given jurisdiction.”

The ruling to whioh we have reference was handed down in re State ex rel Marrero vs. Rouprioh and íortmayer, Ho. 814T8 of the docket of the Supreme Court.

The controversy involved the title to the offloe of Police Junor, an offioe to whioh no salary te emolument whatever is attached. After a decree in the District Court adverse to defendants they appealed to the Supreme Court for relief under its supervisory powers.

They pointed out to the oourt the^oonfliot between Article 98 of the Constitution Of 1913 and the same Article in the Constitution of ÜÜ# 1898, and directed the attention of the oourt to its ruling in re State vs American Sugar Refining Co (137 la 407) holding in effect that those provisions of the Constitution of 1913 which conflicted with the provisions of the Constitution of 1898 were ultra vires and therefore null and void.

/Claiming therefore that no appeal lay to any oourt, they urged 'that this was a proper case (because of the#Dubllo impórtanos thereof) OT~ for tjie exercise of the supervisory and extradinary powers of the court

And in the alternative they prayed "if the oourt is of opinion that relators (defendants) have a remedy by appeal to the Court of Appeal Under Article 98 of the Constitution of 1913. as oohstrued in Bloomfiijíd vs Thompson, 134 la 923, that you (the oourt) will say ad> at the earliest possible moment so that relators (defendants) may not be denied the right to have the decision in this case reviewed by another appellate oourt." (Italios ours).

Upon this applioation the Court without a single dissent, made the following ruling (June 25th 1915);

"Belators’ remedy is by appeal to the Court of Appeal. Applloatica therefore denied."

The Motion to dismiss is therefore Denied.

11.

On the Exception: The remddy herein sought by the plaintiff is precisely that pointed out by the Code of Practice, and the facts set forth by her are in exact accord with the requisites of that code (C. P. 46 to 53 ).

It was not for the plaintiff, afterjilawful and peaceful possession had been disturbed, to assume the burden of an Aotion of Boundary. #he í-f cMs had, and has, a right first^to be restored to and quieted in her possession.

New Orleans, La, April 8 1918.

On the ooutrary it was the defendant who, before taking the law into his own hands, should have asserted his Claims, whatever they might be, in some form of law and before a proper tribunal.

We think our learned brother of the liBtriot Court has fallen into error in maintaining the exception, and we have therefore no alternative but to reverse hiB ruling and remand the case7

She judgment appealed from is therefore reversed, and it is now ordered that the exception of no oause of- action herein filed be overruled and the oase remanded to the Court a -¿ua for further proceedings according to law; defendant to pay the costs of this appeal, and the other oosts to await the final determination of the oause.


text:
    FRED G. BIRCHMEIER VS ROBERT TEAL ROBERT TEAL JR., 3RD. OPPONENT
    NO. 7354
    CHARLES F. CLAIBORHE, JUDGE.
    June 17th. 1918.
   CHARLES F. CLAIBORNE, JUDGE.

On Ootober 28th. 1912 plaintiff obtained against the efendant Robert Teal a judgment for $130.00. On April 28th. 1916 he Issued an execution and oaused the seizure of one mare, one horse, one mule, three dump carts, one spring wagon, one furniture wagon and two sets of harness on the premises No. 818 Belleville Street. On May 16th. 1916 Robert Teal Jr., son of defendant, intervened to oppose the seizure, and claimed the ownership of all the property seized.

Robert Teal Jr., was born on July 14th. 1897; he was therefore eighteen years and ten months old on the day on which he filed his opposition. He had been emancipated by judgment. He has lived all his life with his father and mother.

He alleged that he was the owner of the property seized.which was of a value of $325.00; that he purchased the same with his own earnings from the following persons.on the following dates:

The mare from Joseph Lorenz on April 10th. 1914.

The horse from Charles Montelbano on May 1913.

The mule from Wm. Happyoross on December 24th. 1915.

The three dumpcarts from Wm. Happyoross on December 24th. 1915, from Joseph Lamana in September 1912, and from Ernest Tarleton on May 21st, 1914.

The spring wagon from Joseph Lorenz in April 1914^and the furniture wagon from Jos. Rumore in August 1911, and the harness from Happyoross on December 24th. 1915, and from Lorenz in April 1914.

It will thus be seen that, with the exception of one dumpcart and the furniture wagon, all the other articles were purchased at a date subsequent to that on which the judgment was rendered, against Robert Teale.

He further alleged that he filed with the Sheriff his affidavit of ownership; that notwithstanding said affidavit the Sheriff maintained his seizure and advertised the property for salef that he was unable to furnish security and enjoin the sale. He prayed to be recognized as the owner of the property seized and for judgment in his favor for the value of the property, say $325.00.

To this third opposition the plaintiff Birchmeier answered denying that the opponent Robert Teale Junior was the owner of the property seized and asserting that the defendant, Robert Teale, was the owner thereof; he also alleged that the property seized had been sold by the Sheriff for the price of $151.75.

There was judgment in favor of the intervenor ordering the payment to him of this sum of $151.75. Prom this judgment plaintiff has appealed.

In support of his pretentions the third opponent produces a bill of sale and receipt from Lorenz for $50.00 for one mare and one wagon, together with the testimony of Lorenz who is his uncle^that he gave him the receipt on the day of the sale, although the boy paid him only a couple of weeks afterwards.

Anothelr receipt for one bay horse for $45.00, undated signed by Montalbano. That receipt was also written some time after the payment, and is corroborated by the testimony of Montalbano.

A third receipt for one dump cart for $17.00 signed by Ernest Tarleton in favor of Robert Teal Jr. The "Jr." seems to have been added at a subsequent time. Tarleton swears he wrote the receipt. He would not swear that he wrote the "Jr." buidas he/wrote the receipt, he must have written that too.

A fourth receipt for one mule and cart for s$65.00 by Vim. Happycross Or Habighout in favor of Robert Teal Jr. The "Jr." in this receipt seems also to have been added, as there is a period mark after the word "Teal" in two places where it occurs. Habbieross is dead.

Teal Jr. swears he bought the horses and wagons as setforth in his petition; that his father had no interest in them at all; that he bought them with his own money. He thus recited the origin of his means. Mrs. Ruprich gave him one cow in 1904; he was then seven years old; he raised this cow, and she brought him more cows, until he got five,' he sold milk; feed went so high that in 1910 (he was then 13) he sold out and bought a horse from Lamana for $100.00, $25.00 cash and $5.00 a week; he used the horse for dray work; Lamana gave him several other horses on the same terms. He produced l( a bill entitled R. J. Teal Jr. dealer in wood, coal and ice and says that that was his business in 1912. The bill is made against the Johnson Iron .Works, but is dated June 16th. 1916, one month after his third opposition herein. He went to a private school at night. He had a license for his carts in his name for each of the years from 1910 to 1916; he made the affidavit himself to get them; the Clerk wduld swear him and not the Notary; at the time of the seizure he was working at the holier trade at Johnson Iron Works; his younger brother 19 years old used the animals; his brother lives with his father and mother also; he remembers calling at the office of Mr. Rosser with his mother a few days after the seizure; the conversation wás between him and Mr. Rosser and not between his mother and Mr. Rosser; his mother was sitting on the outside of the office; he asked Mr. Rosser to come to some agreement and that he would square the bill off, and Mr. Rosser refused; he said: "Mr. Rosser, I come to see you about releasing the stock, and I am willing to give you so much on this account and make a settlement"; Mr. Rosier refused to release a horse and wagon to enable them to deliver ice/and he hired a horse whioh his brother used to deliver the ice; there were no names on the carts and wqgons; he was painting a furniture wagon and there was only one side painted, "R. Teal Jr"; he would buy his feed from Several stores for cash; he had no bank acoount at that time; his brother was in his employ for what he could get for him; no regular wages; when hi3 father had no work he would give him a jot, he would pay him in proportion to the money he iradej his father was a ship-carpenter; intervenor has been working in the foundry since 1915; when he got a good drayage job he would quit; his present occupation is holler-maker; on the day of the seizure he was in Lafayette; he was away two weeks and a half patching a boiler. He has lived with his father and mother since his birth.

On the other hand plaintiff Birchmeier produces an affidavit signed by intervenor in olarch 1S15 before Shields, Notary, reciting that lira. Teal is engaged in the business of wagons for hire at No. 818 Belleville Street and that the gross receipts for said business during the year 1914 amounted to £740.00.

He also produced an affidavit 3lgned by "ara. K. Teal" before the same tiotary in March 1914 declaring that sne is engaged In the business of two wagons for hire at 818 Belle-ville and that the gross receipts of 3aid business (for the year 1913) amount to £700.00

A third affidavit signed by intervenor before Vidrine Notary, in Februery 1913, for the license for the year 1013 In same name.

A fourth affidavit made in March 1912 by Mrs. Robert Teal for two wagons to hire at 803 Slidell Avenue.

Plaintiff also introduced in evidence a record of the Second City Court entitled HD. Frolicher vs Mr. & Mrs. Robert Teal Ho. 3489 filed in 1911 in ihlch plaintiff 3ued for repairs to a harness for £2.20 and obtained judgment.

Also a record No. 3655 of the same court entitled Robert Teal va Frank Nefas filed November 7th. 1912, in which the petition is signed by Robert Teal, the defendant herein, who was suing far £3.50 for hauling furniture.

George W. Kobalt is a deputy constable of the Second City Court for the last ten years; he knows Robert Teal Sr. and Jr.; a man by the name of Bulyhorst put a claim in his hands against Robert Teal Sr., for the price of a mule, cart, and harness for $50.00; he called on Ur. & Hrs. Robert Teal 8r,, who promised to send him $5.00 a week as he did not want a constable to call at his home; they sent him $80.00. Hablhorst died and the collection was taken out of his hands; he saw several wagons in the lot opening on Slidell Avenue with the name *R. A. Teal".Belleville Street; he did not know Robert* Seal Jr. in the transaction and never collected anything from him; neither Ur. nor Hrs. Teal said the money was due by their son.

George G. Brunssann says the name "R. Teal" was on the wagon.

lot Lahare swears he saw the name"R. Teal" on the ioe wagon; he passes in front of the house every morning.

James B. Rosser attorney for plaintiff testifies that Hrs. Teal and the intervenor called at his office a few days after the seisure; that Hrs. Teal 3at nearest to him and did all the talking; that the object of her visit was to get his consent to release the seisure and that she would pay a certain amount every month; but that the amount wa3 so small that he oould not agree to it; that the intervenor did not sev a word to him except good day.

George P. Platt a member of the bar, testified that Hrs. Robert Teal and the intervenor called upon him; Hrs. Teal had moat to say; she wanted to get one team released so as to deliver the ice; if the aosrrdid not get one of the teems he would be greatly embarrassed, he asked Hr. Rosser to allow the k release which he did; Mrs. Teal asked if something oould not be done is she did not own the stuff; after he told them what should then be done, Robert Teal jr. aeld hla mother did not own it, he owned it, and he oould preve it by receipts.

The evidence does not persuade us of the merits of intervenor’» demand. The origin and progress of his means jpe'ád like fiction. His management of a business and success while so young are out of the ordinary. The multiplication of his resources seems exagerated^if we consider that they must have been reduced in a measure by his living expenses.

If we give full faith and credit to the receipts he has exhibited, although a part of them excite suspicion, it might well be that they were taken in his name to shield the animals from the pursuit of his father's judgment creditor. However subject to doubt his claims are, he might have succeeded, had the veracity of his testimony been maintained throughout. But while he swears he took out a license in his name and made affidavits himself for each of the years 1910 to 1916 the documentary evidence establishes that the affidavits were made by and for his mother Mrs. R. Teal, and the licenses taken out in her name. Three witnesses swear that the name "R. Teal" was painted upon the wagons.

It appears conclusively also that, after the seizure the intervenor called at the office of plaintiff's attorney. H did not then set up title to the property seized and demand its release, as a matter of right, but solicited, as a favor, its release upon promise of a gradual settlement of the judgment. His visit to the attorney Platt seems to have had a similar object.

Another damaging feature of intervenor's case is his failure to have produced the testimony of Robert Teal,Senior. It is not natural that a father who sees the hard-earned property of an industrious and thrifty son seized to pay his debt should callously stand by and not raise his voice to save it, if it was in his power so to do, unless Robert Teal the father is made of material different from that of other parents, which we cannot presume; nor is Mrs. Teal heard to. expalin why the licenses were taken in her name.

It has been held that when a party fails to produce a material witness, the presumption is that he would testify against him. 35A 694; 37A 29; 38A 779; 39A 426, 880; 41A 866; 51A 320; 52A 1719; 11 Am. & E.E. Law p 503; 22nd. id p 1257.

It is the jurisprudence that where a sale is attacked as simulated the testimony of the vendee alone is not sufficient to sustain its reality unless some good reason is given for not producing the vendor. 33A 1064; 41A 735 (740) 51A 324.

For these reasons the judgment herein is reversed and set aside; and it is now ordered that there be judgment in favor of the plaintiff herein Frederieh G. Birchmeier and against the intervenor and third opponent Robert Teal, Junior, rejecting his demand at his cost in both courts.

June 17th. 1918.


text:
    PETER N. CUSELICH VS GEORGE W. HINGLE
    NO. 7356.
    CHARLES P. CLAIBORNE, JUDGE.
    June 4th. 1918.
   CHARLES F. CLAIBORNE, JUDGE.

This is a petitory aotlon.'

The issues in this case have been much simplified by the statement in plaintiff's brief that he will press only that portion of his claim which asserts the title by him acquired from Benjamin Evans on August 6th. 1918 as set forth in % XV of his petition.

The facts are as follows *

William M. Prescott was at one time the owner of a portion of Section No. 68 of Township 19 S. R. 17 East in the S. E. Land District of Louisiana, Parish of Plaquemines^ measuring one arpent more or less front on the Mississippi River by forty árpente in depth, bounded above by lands of Ootave Barrois and below by lands of Joseph Angelo whloh tract of land, had been patented to him by Patent No, 838 dated July 31st.1867, registered BK 88 p 366 during his marriage with Sarah Newman widow by first marriage of Davis Evans, and whloh was therefore community property.

Prescott died July 16th. 1884. Upon the petition of his widow his Succession was opened in the Parish of Plaque-mines under the No. 68,. She prayed for the affixing of the seals upon the efforts of the deceased. The Court appointed Franois 3. Oaro, Third Justioe of the Peaoe. The report of that offloer shows that he affixed the' seals on July 88nd. 1884.

The widow in another petition alleged that no Issue was born of her marriage with the deceased, and that he had left no ascendants nor descendants, nor collateral relations known to her, and that it was necessary that a person should be appointed to defend the interests of the absent heirs of the deoeased' in case there should be anyj that he had left movable and immovable property belonging to the community which had existed between them and an inventory of the same was also necessary.

The Court appointed James Wilkinson, attorney-at-law, to represent the absent heirs of the deceased, and D. A. Thlbaut, Clerk of Court,' to make the Inventory. The Inventory was made by Thibaut on July 25th. 1884 and filed in court.

On October 6th. 1884 the widow filed a petition in which she alleged that her husband died intestate, leaving neither ascendants nor descendants, and that she was entitled to be sent In possession of all the property left by him as owner for one-half,^as surviving widow in community^ and as usufructuary for the other half during life. Upon the same day an order was signed accordingly.

By an act dated Decomber 5th. 1884 Widow Wm. M. Prescott sold to Morgan Loar and George W. Hingle, Jr. the following property:

"The undivided one-half of the following described property and her right of usufruct to the other half of said property, to-wit: (Then follows a description similar to the one given above) Which property was acquired by said vendor in the following manner, to-wit:- The one undivided one-half as widow in community of the late Wm. E. Prescott, and the other one undivided half as usufructuary of said Wm. M. Prescott, as per order of the Honorable the 24th, Judicial District Court, in and for the Parish of Plaquemines, bearing date October 6th. 1884, issued in the matter of the Succession of the said late Wm. M. Prescott No. 58 of the docket of said court. And the said Mrs. Sarah Evans widow of the late Wm. M. Prescott, furthermore binds herself, guarantees, agrees and stipulates to give and grant an absolute and perfect title to said purchasers on the 6th. day of October 1887 of the one-half // of said described property of which she is now usufructuary.

The consideration was $300.00; $200.00 cash and one note for $100.00 payable October 6th. 1887.

This note of $100.00 wás paid and the mortgage can-celled. We gather these facts from the briéts as the act of sale in not in the record.

Sarah Newman widow Davis Evans widow Wm. M. pres» oott lastly wife of James Morris died on July 3rd. 1889; her succession was opened tinder No. 134 in the Parish of Plaque-mines; Benjamin F. Evans alleging himself her only child and heir was recognized as such and sent in possession by Judgment rendered July 23rd. 1889. Neither in the. petition nor in the Judgment was this property mentioned.

In a supplemental petition filed August 6th. 1912,-twenty-three years later, Benjamin F. Evans alleged that Vm. H. Prescott had acquired the Section 55 described above; that while Prescott had sold certain tracts of said sections, some parts of it remained, which had been inherited by his widow, petitioner's mother; thát in-thei-judgment recognizing petitioner as heir of his mother, this section 55 was not mentioned^ and he desired to be sent in possession of all the rights of Vm. U. Prescott and of his widow in the remaining parts of said section.

To this petition were annexed the affidavits of two witnesses and of petitioner himself swearing that Vm. M. Prescott died leaving no heirs except his wife Sarah Evans.

On August 6th. 1912 there was Judgment recognizing Benjamin F. Evans as the owner of all the unsold portions of Section 55, and sending him in possession.

By act dated August 6th. 1912 Benjamin F. Evan» sold to Peter Cuselich all his rights, titles, and interest in and to the remaining parts of Section 55 acquired by him by virtue of the two judgments hereinabove mentioned of July 23rd. 1889 and August 6th. 1912.

On November 26th. 1912 Peter Cuselich, through his attorney James Wilkinson, made demand from Geo. V. Single for the ownership of Section 55 and on April 5th. 1915 filed the present suit.

In his petition in this suit Cuselich sets up as his title the act of sale by Benjamin F. Evans to him dated August 6th. 1912.

To this petition George w. Hingle pleaded the exoeptions of no legal right or oause of action and the prescriptions of 3-10-20 and 30 years.

By consent of parties the exceptions were referred to the merits, without prejudice to the rights of the defendant.

For answer, defendant denied that Mrs. Evans Prescott had any further Interest in the section 55 after her sale to Morgan Loar and George W. Hingle Jr. by the act of December 5th. 1884; that the price of #300.00 paid by them to Mrs. Prescott was in full settlement for the whole property.

There was judgment maintaining the exceptions of no cause of action and prescription and dismissing plaintiff's suit. The plaintiff has appealed.

In his reasons for judgment the Judge of the District Court interprets the transfer by Widow Prescott to Loar and Hlngle as an absolute and complete sale of all her interests in the property both as widow in community and as an heir of her husband under Article 924 (918) of the Civil Code.

We do not find it necessary to give the Act of Sale such a sweeping interpretation.

To our minds the Act of Sale indicates a very clear intention on the part of Widow Prescott to divest herself of all possible interest' :in the property in favor of Loar and Hingle. She sold to -them the undivided half of the property which she had acquired as widow in community and her usufruct two of the other half, which/elements of ownership together represented all her present titles to the property;'and furthermore she bound herself and guaranteed to give an absolute and perfect title to the purchasers on October 6th. 1887 of the one-half of said -property which did not then belong to her and of whloh she was then only usufructuary. The judicial proceedings Ir the Succession of her husband Wm. M. Presoott had been prepared with skilljyad in accordance with Article 930 (924) of tha->. Civil Code^fhe seals 4lad been affixed, an inventory had been iaken^bp<t an attorney for absent heirs had been appointed, and a Judgment rendered on October 6th. 1884 recognising her ae widow in community and putting her in possession of all the property left by her husband as widow in community fa* one-half and usufructuary for the other half. She could not sell the naked ownership of the one-half belonging to her husband's succession, aa far as hi3 heirs were concerned, until after the expiration of three years from the judgment putting her in possession; therefore she bound herself to give and grant to Loar and Hingle^after the expiration of said three years f an absolute and perfect title to the one half of the property of which she then had only the usufruct; that obligation was inoluded^^the price of- $3Q0«00^and in order to put it in the power o^purohasers to compel the performance of that obligation, the credit portion of the price, $100.00,was to become exigible only at the same time that her ti-U.e jnlgjht become.perj . foot on October 6th. 1887^But in oase of^doubt the Oode provides, Article 2474 (2449) "The seller is bound to explain himself clearly respecting the extent of his obligations; any obscure or ambiguous clause is construed against him". 108 La. 662; 120La. 498; 111La. 273; 43A -213; 962; 4A 120.

October 6th. 1887 came and went by; Loar and Hingle paid their note of $100.00, but Widow WM. M. Prescott took no steps to have herself recognized as the heir of her husband nor to complete the title to Loar and Hingle. But if she had taken such steps and had herself recognized as heir she could not have sold that new title to the undivided half because her obligation to transfer that title to Loar and Hingle had been incurred and had been regi3tered^and because any subsequent title she might acquire to that property would enure to the benefit of her purchasers Loar and Hingle. What she could not sell, she could not transfer by inheritance to hag son Evans, and what Evans could not acquirS^he could not sell to Cuselich, the plaintiff herein.

C. C. 2475 (2450) The seller is bound to two principal obligations, that of delivering and that of warranting the thing which he sells".

C. C. 871 (867) "Succession is the transmission of the rights and obligations of the deceased to the heirs".

C. C. 1013 (1006) "Thfe effect of the simple acceptance of the succession xxx is such that when made by an heir of age, it binds him to the payment of all debts of the Succession &en, Also C. C. 1423 (1372)

C.C. 3144 (3111) "If at the time of the contract the debtor had not the ownership of the:thing pledged, but has acquired it since by wrhat title soever, his ownership shall relate back to the time of the contract, and thepledge shall stand good".

C.C. 3304 (3271) "If a person contracting an obligation towards another, grants a mortgage on property of which he is not the owner, this mortgage shall be valid if the debtor should ever after acquire the ownership of the property, by whatever right".

Any title acquired by the vendor subsequent to the sale Inures to the benefit of the vendee and his (subsequent sale to another person transfers nothing. 50A 869; 49A 9S5; 43A 859; 39A 359; 33A 283; 25A 159; 18A 321; 16A 96; 5A 533; 121*170; 9 La. 1 lidity of the Judgments in favor of Widow Prescott or of her son Evans, nor of their titles, nor do we pass upon them. All We decide is that Widow Prescott sold a portion of Section 55 to Loar and Hingis^and that she was bound to warrant the title to it; that a like obligation rested upon her son and heir; that any title she or her son subsequently acquired to that land Inured to the benefit of Loar and Hingle.and that neither she nor her son^disclose a cause of action against them in a petitory action alleging a better title. <7 >; 9 La. 100; 5 N. S. 246; 1 Oreenl Ev £ 24»_ &m~u.s.. 7¿ 2t<s- S/y~¿dz^SklA An heir Is bound to warrant and defend a title granted by the one from whom he inherits. 12La. 170; 9R 3; 2 Pothler Venta, p 77_ UJkzdfv?, ¿ünúu ¿fast. A-/3S — 16£; 43 Dallo# Rep^ Leg. p 241 £ 939¿ 940, _ t3 ^ ‘T% ^ ^ ~ / 'á - /are not concerned/ with the question of the va-

judgment affirmed

June 4th. 1918.


author: Per Curiam;

text:
    NO. 6929-7360.(Consolidated)
    MRS. J. H. ELLIOTT VS SOPHIE WEINSTOCK.
    New Orleans, La, May 23rd, 1918.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OH APPLICATI’OH POR REHEARIH S.

Per Curiam;

On the merits we have nothing to add to our original opinion. As to the point made that this court oannot hear appeals from Distriot Courts unless all three judges serve at the hearing, we refer

1.To the uniform practice of this court since its organization in 1898.

2. To the following Articles of the Constitution of 1898, to wit, Original Article 102, and Artioles 99 and 100 (last paragraph) as amended under Act 137 of 1906.

3. To Article 102 of the Constitution of 1913, particularly the last paragraph (nothing especially the word serve).

Rehearing Refused.


author: CHARLES P. CLAIBORNE, JUDGE

text:
    MRS. J. H. ELLIOTT VS SOPHIE WEINSHENK
    NOS. 6929 and 7360
    CHARLES F. CLAIBORNE, JUDGE.
    May 6th. 1918.
   CHARLES P. CLAIBORNE, JUDGE

The question involved in this case is the ownership of property seized for rent, and its liability to the lessor's privilege.

day Wilson and her husband John H, Elliott filed this suit July 6th, 1916; they alleged that on January 1916 Mrs. Elliott had leased to Sophie Weinshenk the house Ho. 3381 Prytania Street for a term commencing January 88th. 1916 and ending September 30th. 1916, for which the lessee furnished her eight notes, each for $65.00 payable on the first day of eaoh month, with the stipulation that should the lessee fail to pay the rent punctually, the rent for' the whole unexpired term should become due, and in case of suit, that |^ie lessee should pay attorney's fees of ten per cent upon the amount due and eight per cent per annum interest; that there was a balance due of $30.00 on the note due June 1st., and the note due July 1st. was unpaid, fty reason whereof the other three rent notes had become due, making a total amount due of $890.00 with - interest and attorney's fees; she further alleged that she had good reason to believe that her lessee would remove the furniture upon which she had a lessor's privilege and she prayed for a provisional selsure and for judgment recognising her privilege upon the property and effects in said premises contained.

The writ issued and the furniture was seised.

Luolle Weinshenk widow Evan B. Egbert intervened in the suit and alleged: that the Sheriff had seised in this case furniture and household effeots fully worth $500.00 belonging to her; that she was an undertenant of the defendant and was not indebted to her; that she was unable to advance the oosts of court and desired to avail herself of Act 166 of 1918 authoris ing litigants who are unable to pay costs to litigate without édvanoing costs; and she prayed for judgment releasing her property from seizure.

The plaintiff thereupon took a rule against the defendant and against the intervenor, in which she alleged that the furniture seized was in the Sheriff's warehouse and was deteriorating in value, and she prayed for an order to sell the same.

Defendant, Sophie Weinshenk^resisted the motion for sale. The intervenor, Lucille Weinshenk,for return to the rule alleged that it disclosed no cause or right of action; that she could not be proceeded against by rule, and that plaintiff could not proceed to the sale of her furniture before a final judgment

The rule was tried on July 20th. 1916 and taken under advisement.

On November 3th. 1916 the following order was entered on the bottom of the rule.

"The opposition thereto having been overruled October 13th. 1916, the Oivil Sheriff is ordered to proceed with the sale of the property seized herein".

"Signed" Porter Parker,

Judge.

Prom this order the Intervenor appealed suspensively. Her transcript has come up to this court under the No. 6929.

Thereupon the defendant Sophie Weinshenk filed a general denial; she admitted that she had signed the notes sued on, but denied having signed the lease.

The plaintifl answered the intervention. She admitted the seizure but denied all the other allegations of her invervenor. She further alleged that the' intervenor,Lucille Weinshenk is the daughter of the defendant Sophie Weinshenk; that Intervenor first rented the property 3321 Prytania Street from the plaintiff for the prupose of conducting a boarding-house with her mother; that she stated to plaintiff that the furniture to be placed in the property belonged to her mother, and■at ' .her suggestion the lease was changed and made in the name of ner mother; that the Intervenor and her mother have been jointly operating a boarding house In the leased premises from the date of the lease up to the time of the seizure; that the furniture claimed by intervenor is subject to the lessor's privilege; that the lease contains a prohibition against subleasing without the written consent of the lessor^ which was never given, and that the intervenor was aware of said clause.

There was judgment in favor of the plaintiff Mary Wilson wife of John Elliott and against the defendant Sophie Weinshenk, as paryed for, for $890.00 with interest and attorney's fees _ md lessor's privilege upon the property seized and ordering the sale of the same to pay the judgment; there was also judgment against the intervenor Lucille Weinshenk rejecting her demand.

From said judgment the defendant Sophie Weinshenk took a devolutive appeal, without bond, under the Act of 1918.

Lucille Weinshenk took a suspensive appeal^also without bond, under the provisions of the same act.

Their appeal comes up under the transcript No. 7360, which has been consolidated with the previous transcript No.6989.

The lease filed with the petition is only a copy. It is made by "Mrs. J. H. Elliott" to "Sophie Weinshenk" and contains a type-written copy of her signature in full.

The lease filed November 3rd. 1916, under sprayer for oyer, is made by "Mr. John H. Elliott" to "Mrs. S, Weinshenk".

It is signed "S. Weinshenk", and by "Edgar E. Smith Agt." The lease contains the following clause:

"The lessee binds herself xxx to make no Sub-lease, nor transfer said lease in whole or in part xxx without the written consent of the lessor." The notes are all signed "Sophie Weinshenk". It is immaterial in whose name the lease was made as Mr. & Mrs.. Elliott appear as plaintiffs.

On the trial of the case, the plaintiff offered in evi dence the lease filed November 3rd. 1916, and proved the signature by the testimony of Edgar E. Smith. Counsel for defendant objected "to the use of said lease as not being the lease upon // which the suit was filed and predicated.

The decision of the court overruling the objection was evidently correct. Under Article 175 of the Code of Praetioe, plalntlff had a right to sue upon the lease without producing the original or by simply annexing a copy; she was bound to produce the original only upon defendant's prayer for oyer^which she did more than a year before.the trial of the oase.

The defendant Mrs. Sophie Welnshenk did not testify herself, nor did any one in her'behalf and she offered no evldenoe. The judgment against her Is evidently correct.

From the view that ne have taken of this case, It Is Immaterial whether the furniture that was contained in the leased premises and which was seized herein belonged to the defendant, the lessee, or to the lntervenor.

Artlole 8707 (8677) of the Civil Code provides that the right of pledge of the lessor "affects not only the movables of the lessee and under-lessee, but also those belonging to third persons, when their goods are contained In the house or store, by their own oonsent, express or Implied."

In this case the lntervenor and her children lived In the leased premises with ner mother. She brought the furniture Into the house, and it was therefore In the house with her express consent.

But the lntervenor contends that her furniture was not liable because she occupied the premises as an under-tenant of her mother.

Article 8706 (8676) subjects the property of the under-tenant to the lessor’s privilege only In so far as the former "Is Indebted to the prlnlcpal lessee at the time when the proprietor chooses to exercise his right".

The lntervenor attempts to establish her relation of under-tenant to her mother by her testimony, as follows:

(ft) Do you ow£ any rent or any money to your mother?
(A) Yes, 1 do, since this came up.
(ft) Do you owe rent to your mother?
(A) No, I don’t owe rent with the exception that my livelihood was out out, and I had to put these children in an orphan hbme.
(4) fell, did you lease from your mother? That Is what I went to know? Did you rent from-your mother?
(A) Ho, X did not,
(q) Whet did you mean by saying that you owed money? Did you mean then—
(A) Well, she was to receive the orofits of ) >• In boarding house,
(Q) Well, how would that make you owe money to your mother?
(A) Well, X don't know that X veally owe It to her If everything.
W Well, the question Is you either underatand what J eald or you did not. X ask ou if you owed any rent to your mother, and you said yes.
(A) No, X do not ows her any rent, because x paid her rent, X gave her my services for the home of my children and myself. X owe her no rent,

later on she saysi "and that Is why X dld'nt pay any rent to my mother, having my furniture In that house and giving my services".

i'irs. Sophie weinshenlc did not testify on that issue either.

She first relation employes vague *m indefinite^ and not sufficient to establish the rights of a sub-tenant.

0, 0, 8069 (8659) "lease or,hire is a synallagmatic contract te wnloh consent alone is sufficient,, and by whioh one party gives, to the other the enjoyment of a thing, or his labor, at a fixed price",

9, 9, 8679 (§e49) "®e the contract of lease, as to that of sale, three things are absolutely necessary, to-witi- the thing, the prioe, and the consent",

9, Q, 8071 (8041) "the price should be certain and determinate, and should consist of money, However, it may eonslst in a certain qusntity of eommodltlee, or even in a portion of the fruits yielded by the thing leased",

18 la. 410) 15 la, 574) lih 879) 8A 701) 7A 0B4) 14A 10® (176) 17A IS] 19A 101) 80A 800) 81A 745) 68A §49) 54A 60S) 1964) 56A §70) 41A 908) 1961a §09) 119 la, 881) le laudry lac p 412 ¡í 832, 844 Á Ó~-

There is no pretense and no evidence that Sophie Weinshenk had subleased any particular part or the. premises to her daughter Lucille for any fixed price, nor that they had fixed any particular sum as the value of her services, or as the value of the premises occupied by her.

If the other consideration suggested by Lucille Weinshenk is considered, that is the undetermined value of the use of her furniture to her mother, then it was a lease by her to her mother of her-furniture, which subjected her furniture to the lessor's privilege.

It has. been decided that mules leased to a lessee are subject to the lessor's privilege. 23A 453.

As Lucille Weinshenk has failed to establish that she was an undertenant in her mother's house, her furniture placed in that house with her consent must be liable to the lessor's privilege for the payment of the rent due.

Having concluded that the furniture claimed by Lucille Weinshenk the intervenor was liable to be siezed and sold to satisfy plaintiff's claim for rent, it follows that the District Court had the right to entertain the motion to sell it as perishable and to so order under Article 261-of the Code of Practice, Act 94 of 1900 p 151, and the constant practice of the Courts.

The seizure and sale of that furniture was a proceeding in rem by which Sophie Weinshenk the defendant, could not be Injured and of which she could not complain. 11 M 242, 28A 847; 26A 644.

The two judgments appealed from are therefore affirmed at the cost of the appellants.

Kay 6th. 1918*


text:
    UNITED STATES TIRE CO., For account or &c VS WELLS, FARGO EXPRESS CO.
    June 28th. 1918.
    NO. 7365.
    CHARLES' F. CLAIBORNE, JUDGE.
   CHARLES F. CLAIBORNE, JUDGE.

Plaintiff aaaka to raoovar damagaa from tha dafandant for da.lvorlng gooda to a paraon othar than tha onaignaa.

Plaintiff allagaa that^in tha amploy of tha Elaotrio Appiianoa Oompany, aaaumlng to aot in tha nama of aaid Company, hut without authority ao to do, and without intant to dafraud it, gava an ordar to patitionar to ahlp by axpraaa to ona Jamaa Murray at Donaldaonvllla a oortain numhar of automohila tiraa and tuhaa valuad at |5S7,60, and to oharga tha aama to aaid Elaotrio Appiianoa Oompany; that tha plaintiff dalivarad aaid tiraa to tha dafandant tha Walla Fargo Expraaa oonalgnad to Jamaa Murray, Donaldaonvllla) that thara waa in raallty no auoh paraon aa Jamaa Murray) that tha amployaa of tha Elaotrio Oompany had oonaplrad with anothar to dafraud aaid oompany and to imparaonata Jamaa Murray and to aaauma that nama; that tha Expraaa Oompany raoaivad tha tiraa and nagllgantly dalivarad tham to that othar paraon who aaaumad tha nama of Jamaa Murray) that it waa tha duty of tha Expraaa Oompany to dallvar tha aaid tiraa to Jamaa Murray, tha oonaignaa, and that if it had axarolaad dua oara, it oould aaally hava aaoartainad that tha paraon to whom it aotually dalivarad tha tiraa waa not jamaa Murray, tha oonaignaa. Plaintiff tharafora olalma from dafandant tha valúa of tha tiraa dalivarad to Jamaa Murray.

Tha dafandant axoaptad to th'ia patitlon on tha ground that it diaoloaad no oauao of aotion. Tha argumant waa that although tha nama of tha paraon who raoalvad tha tiraa waa hot Jamaa Murray, yat tha tiraa wara dalivarad to tha pa rao» intaadad aa tha oonaignaa and daaignatad aa Jamaa Murray for tha purpose* of the consignment? in other words that the tires had reaohed the person by nam* to whom they were intended to be assigned, whatever was hla real nam*.

Th* exception waa maintainad and th* suit waa dismissed.

Reduoed to its simplest expression the oaus* of aotlon Intended to be aetforth by the plaintiff is, that th* oarrier delivered the goods to th* wrong parson without exorcising due oar* and dlligeno* to asoertaln the identity of th* oonaIgnea,

Th* duty of oarriera upon this subjeot is thua epitomised!

"There la said to be absolutely no exoua* for the oarrier'a delivery to th* wrong person, and he is under th* duty of being absolutely oertaln aa to th* person. No oiroumstanoe of fraud, imposition, or mistake will exouse him. If he has any doubt as to a person who applies for the goods, he should require positive proof of hla identity x x x. Delivery to the wrong person is a conversion even though mad* by inno» oent mistake or through fraud praotioed on tha oarrier x x, A delivery to on* who ordors in a fictitious name or assumes th* nam* of another is a misdelivery". 4 Elliott on contracts $ 3881.

.In 10 C. J. $ 377, 378 the rule is thua stated!

"In oases of delivery to wrong person "no question of oar* arises, for in auoh oos* the carrier aota at its peril and is liable regardless of negllgenoe." "on the question of th* oarrier*a liability for a delivery to the wrong person, it is^SShateriai that the' delivery was aeaured by auoh person through miatake or fraud, even though th* oarrier acting in good faith, was imposed on by auoh person. Th* question is not one of due oara, for tho oarrier, like any other bailee, aota at his peril in making delivery. The law exacta of the oarrier absolute oertainty that the person to whom delivery lo made is rightfully entitled to the goods and plaoos on it the entire risk of mistake x x x ji 878, The rule applies with full force and effect, although the consignee to whom the goods are billed is a fictitious person or-firm in whose name the goods have been fraudulently ordered.n 58 N. E. 560; 133 Mass. 156,

And in I Michie on Carriers Sec. 858 p 551:

"Khere a carrier delivers goods to the wrong person, it is liable for conversion, x x Neither fraud, imposition, nor mistake, will exouse the carrier for delivering goods to the wrong, person. The carrier is liable without regard to the question of due care or negligenoe".

Angell on Carriers $ 324. Wood's Brown on Carriers p 319. Hutchinson on Carriers 344. 6 Cyc p 472. 123 U. S. 727 37 L. R. A. 177. Story on Bail Sec. 540.

Thus in Sword vs Young 14 S. W. 481(Tennessee) Olllenwaters over the assumed and fictitious name of Charles G. Magrander wrote to Sword & Son of Cleveland to send (representing Magrander as a firm name) a brick machine. The machine was shipped and came to Knoxville on the cars of defendant railroad. Olllenwaters presented a bill of lading in the name of "Charles G. Magrander'' and received the machine for which h$ receipted in the same name. The Court held the carrier .liable for misdelivery; "It made no differenoe^said the Court, it' ■ / . that beoause Olllenwaters had the bill of lading^that he was Magrander. It was ..the duty of the carrier to have required him to identify.himself as the consignee. By its failure to do so, Gillenwatera was .enabled to practice a fraud. There is.'no difference between this case and one in which a consignment has been .made to si actual person and the goods delivered by accident, mistake or carelessness to a cheat who represents himself as the real consignee. It is necessary •in both to have proof of identity".

On application for rehearing the court cites with approval Price vs Rrd. 50 N.Y. 213; and refuses a rehearing.

In Price vs RRd. 50 N. Y. 213; 10 Ann Rep 475, the facts were as follows:

Tho plaintiff at Syracuse received a letter signed "S. H. Wilson & Co.," Oswego, directing the shipment to them of a lot of bags. The plaintiff shipped the bags by the defendant railroad. The defendant delivered them at Oswego to a man representing himself as the agent of S. H. Wilson & Co., The ffict was that there was no such person or firm in Oswego, and the letter signed "S. H. Wilson & Co., was only a part of a scheme to defraud the plaintiff. The defense was, as in this case, that the person to whom the bags were delivered was the person who wrote the letter and was the consignee. The Judgment was against the. carrier. The Court said: "But as there was no suoh firm x x delivery could not be made to the consignees ", reversing 58 Barbour 599^and quoting Ward vs Vermont RRd. Duff vs Budd 7 Eng. Corn Law 399; 4 id 540; 4 Bing 476 Stepherson vs Hart.

The case of Winslow vs The Vermont RRd. 42 Vt. 700-, I Am Rep 365-is very similar to the one under consideration. It is thus stated: "They (the goods) were directed to J. F. Roberts, Roxbury, Mass. There was no such person as J. P. Roberts, and no person who was known or passed by that name. Collins, whom the plaintiff well knew as Collins, had represented that there was such a person as J. P. Roberts, in Roxbury, and had induced the plaintiff to consign the goods to that address. Collins then went to. Boston, and awaited the arrival of the goods, and claimed them wider the name of J. F. Roberts, víiich name he assumed for the purpose of getting the goods. The windle was successful". It was claimed in that case^ as in this^one^ "that there was no misdelivery; that the goods were delivered to the very party to whom they were sent, the only J. F. Roberts there was, and that the defendants have therefore fulfilled their contract". But the Court held that J. F. Roberts was the consignee^ and that delivery to any other person was a misdelivery and that if there was no such person, "the goods were for the consignors", and held the defendant company liable^'quoting Stepherson vs Hart. 4 Bing 476 and other.

In American Express Co., vs Fletcher, 25 Ind. 492, the defendants pleaded that "a person pretending to be J. O. Riley dispatched through said operator to the plaintiff* a telegram requesting them to send him #1900.00 by express) that In due time the same agent reoelved by express a paokage purporting to oontaln valuables, addressed to J. O. Riley, whereupon the same person who had dlspatohed the telegram demanded said paokage, and It was thereupon delivered to him". The Oourt said» "without oonslderlng whether the faot* pleaded In the seoond and third paragraph* of the answer would have been admissible In evldenoe under the general denial we are of opinion that those paragraphs were justly held bad on demurrer, x x The. express undertaking of the appellant was to deliver the paokage to j. 0> Riley In person. The utmost that the answer alleged was that the delivery was to another person who pretended to be Riley." See also 29 Ind, 27/.

On the same lines are Southern Express vs van Meter 17 Fla 783; 35 Am Rep 107,and Pacific Ex Co., vs. Shearer. 43 N. E. 816) 160 Ill 215) 37 L. R. A. 177 American Express vs Fletcher 25 Inc. 492 and differentiating Dunbar vs RRd 110 Mass, 26 and Edmunds vs Transportation Co. 156 Mass 885 and dissenting from Samuel vs Chenes 155 Mass 278.

The case of Oskamp vs southern Express Co. 56 N. E. 13 (Ohio 1699) Is as follows:

There resided In the town of Hopkinsville on* T, M. Jones of the highest business rating. The plaintiff, of Olnolnnatl, reoelved a written order purporting to be signed by T, M. Jones for the shipment of a lot of Jewelry, The plaintiffs filled the order and shipped the jewelry In « paokage dlreoted to T. M. Jones, The genuine T. M. Jones had not ordered the goods) but the order had bean written by on* Rothschild who had been In Hopkinsville only a few days, The Express company delivered the jewelry to Rothschild upon his representation that he was T. M. Jones, but Without any further Identification by any on*. The Express Company mi held liable.

In Samuel vs Chenez 136 Mass 278; 46 An Rep 467 It la said, on p 470( that the above oases "differ widely In their faota from the oaae at bar and are distinguishable from it".

there are, however, a number of deolslons not In aooord with the principles laid down In the above oases. They exonerate the oarrler when the fraud has been praotloed primarily upon the eonslgnor. They are compiled in 1 Miche & 858 p 553 and In 37 L. R. A. p 180 note, and In 10 C. J. p 826 note 79.

Hlohle thus states that view H 859:

"Ihen the oarrler delivers gooda to the peraon to whom the gooda wore sent, although by false and fraudulent devloes that peraon Impersonates another, to whom the oonalgnor believed he waa sending the gooda, the oarrler la not liable".

But the oonaervatlve opinion aeema to be that the oarrler la liable when In delivering the gooda It falls to exerolae proper ears to Identify the party olalmlng them, and when the exerolae of that oare might have led to the dlaoovery of the fraud or prevented Its consummation. 43 Mo. App 659 (663);42 S. W. 786; 1017; 10 C. J. $ 379 p 266; 267 note 80; 37 L. R. A. 177 (184 last $ of note.)

The petition In thla oaae distinctly avers that the defendant had "oareleasly and negligently delivered the said tires and tubes to some person other than James Hurray, the oonalgnee" and "that If defendant had exercised due oare and dlllganoe and had duly performed the duties so plaoed upon It, it oould easily have ascertained that the person to whom It aotually delivered the tires and tubes was not James Hurray, the oonalgnee". Thla la tantamount to alleging that the exerolae of the oare required by law of the defendant to Identify the oonalgnee would have led to the dlaoovery of the fraud and that the failure to exerolae that oare rendered the defendant liable for the loss that resulted from It. The question of liability is therefore one of fact as well as of law.

For the reasons above Stated we think that the petition heiv_n did state a cause of action.

It is therefore ordered that the judgment herein maintaining the exception of no cause of action be reversed and set aside, and it is now ordered that said exception be overruled and that this case be remanded for further trial according to law.

June 28th. 1918.


author: St. Paul. Judge.

text:
    NO. 7374.
    STATE EX REL WM V. SEEBER VS PHEONIX BLDG & HOMESTEAD ASS'N.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.
   OPINION.

St. Paul. Judge.

Phis Is a proceeding to oompell the Respondent, a private oorporation, to reoognise the Relator as a member of Its Board of Blreotors. Ikon a Judgment against It, the Respondent appeals*

Relator was one of respondent's dlreotors, but In a moment of irritation at not being otyoeen to some offioe, he wrote out and tendered his resignation to the full board, then in session. She resignation was not aooopted or aoted upon, but a oonnlttei was appointed-to oall upon relator and ask him to reoonsider it* Phis, at first, he refused to do, but afterwards and on the very day the board met to oonslder gis resignation,- he reoonsldered his aotlon and notified the hoard that he desired to withdraw 11* But the board deollned to allow the withdrawal; and thereupon aooopted the resignation notwithstanding the notloe of its withdrawel¡ and then "by aoolamatlon" invited relator to beoome again a oandidate to suooeed himself.

It is olear from the above that the forties to this lltigetion are, or were, at oross purposes with eaoh other simply as to the route by whloh the relator should return to the offioe whioh he olalms.

But we take the oase as we find it. Relator olalms that he had a right to withdraw his resignation before it was aooopted and aoted upon; and respondent olalms that the resignation beosme effeotlve as soon as delivered, and needed no aooeptanoe to malee it do; so that respondent now refuses to reoognise relator as one of its dlreotors, and henoe this suit.

Z^ We take it as elementary that sinoe tho adoption of the Phlrteenth Amendment to the Constitution of the United States, no person within their Jurisdlotlon oan be oompelled to render Involuntary personal servios of any kind except as a punishment for orlme.

It is therefore olsar that a person who shooses to resign or ley down an offioe of any kind osnnot be oompelled to keep it by any refusal of some.other peraon to aooept hla resignation thereof; and we shall therefore waste no time on that phase of the case.

But that is not the question. She question is whether a resignation heoomes so far effective by mere delivery that it or whether cannot thereafter be withdrawn; a resignation once tendered may be withdrawn before it is accepted'or aoted upon*

We find a long line of decisions holding, quite properly, that a resignation need not be accepted formally , and any acceptance thereof however informal, or any aotlon thereon whatever, suffices to make the resignation effective.

We may endorse this unqualifiedly.

But there are only two cases reported whioh hold that a resignation once delivered cannot be withdrawn even before its acceptance or before any action has been taken thereon.

One of these cases is from Alabama send one from Indiana, Viz;

State ex rel Williams vs Fitts, 49 Ala. 402
State ex rel Lockhart vs Hauss, 43 Ind. 105

Both of these cases were oalled to the attention of the Supreme Court of the United States in the case of Edwards vs United States, 103 U. S. 473, But that august tribunal refused to follow them, and declared that in the absenoe of decisions to the same effect in another jurisdiction, they would in a case from that other jurisdiction follow the general law which required that a resignation to become effective must either be accepted or otherwise aoted upon.

We ourselves will do likewise. It is a matter of common knowledge that such is the general understanding among all classes of people. Beslgnations are tendered daily and withdrawn before acceptance, either with or without persuasion; and it is uniformly considered that a resignation tendered and withdrawn is as if it had never been tendered at all. Indeed the faots in this very case, as recited above, show that the directors of the respondent corporation themselves so considered; for they appointed a com* mittao to persuade relator to reconsider his resignation.

new Orleans, la, June 4th, 1918.

We ourselves decline to become pioneers in upsetting in this State, a praotioe and an understanding so consonant with common sense, and thereby throwing confusion and doubt over the standing end-authority of Soores, perhaps hundreds, holding office both publlo and private under these precise conditions*

It is said that the Supreme Court of the United States has in a later case, Briggs vs Spaulding, 141 U. S. 132, decided, that a resignation becomes effective on delivery and without need of acceptance*

We do not read the case that way; the court held simply that no formal acceptance was necessary;' but it found as a fact that the resignation was orally tendered and orally aooppted, the resignation being that of a director .in a national Bank who had resigned orally upon disposing of his stock thus disqualifying himself to sit longer as a director.

We think the judgment appealed from is correct and should be affirmed.

Judgment Affirmed,