author: By WILLIAM A. HELL, Judge.

text:
    KERNAGHAN & CORDILL VS LEO FELLMAN
    NO. 8462
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE.
    OCTOBER 1st, 1923.
   By WILLIAM A. HELL, Judge.

This litigation between two reputable real estate dealers . of New Orleans, ooaoerns the right or not of plaintiff to recover from defendant one-half of the commissions retained by the.Tatter as ■ Lepresentative of the vendor <?f certain real estate purchased hy the ¿eral Band Bank, through plaintiff, as Its agent. The matter is ,.;C a simple one, based solely upon issues of faot, and involves tha, determination of what in truth transpired in a business transaction, between three men of high character in this oommunity. A careful examination of the testimony oonvinoes us that plaintiff did agree,.-.... with defendant on the day of the sale, and even as far back as the month of.June preceding said date, that the eartmilUm of plaintiffs' right to reeaive half of the commissions involved, weald bé, vittr his principal(pontinuously undisclosed}-!!* had not been a party with whom defendant had previously dealt in relation to the property sold.

Disposal of the above issue of fact carries us to the determination of the only other and more important'one, as to whether the purchaser, prior to October 18th, 1919, had dealt with.the .defendant-with a view of purchasing the real estate involved.. The. whole defense to this suit is predicated upon the speo'ial averment ’ that the admitted agreement to divide the commission was coupled with the aforesaid specific condition.. We do not agree,, withthe, contention urged in defendant's brief that the burden in this ease is . upon plaintiff to establish the truth of the .negative ariaihg from the pleadings in this case,. that is',' to show by a preponderance of ;• evidence that the purchaser had dpt.dealt previously with the defendant in regard to the property. The burden is clearly upon the d*- : fondant, who has made the issue*-1o affirmatively establish that-the. condition of hie release from. the. obligation aa^toe^.^'.Mi^had act- - úally resulted,,-.and that he, in-'opnse'qnbneo, has "been -, -the performance pf a oonaatibnál'áj^?*e'ment -to,^'wyv.' ;-0areSal tion of-ta^áecision by this Court in Abington v. Red River Orleans App., 10, does not show its application in any way to the facts in this case. The cited case involved, a suit against the defendant carrier for non-delivery of merchandise, and upon conflicting testimony, in a controversy involving issues of fact only, this Court affirmed, as it should havo done, the findings of the trial Judge. But admitting defendant's contention to be sound, we are of the op- . ijjion that the office records of the defendant offered in his defense were oorrectly excluded, and that the conclusions of the trial Judge were oorreot in finding that the evidence is clearly with plaintiff, establishing that the purchaser never, at any time, had any dealings with the defendant in relation to the property ultimately purchased. The letter from the Federal Land.Bank, addressed to . plaintiff on the day of and‘prior to the aooeptanoe of offer to purchase , is, in our opinion, conclusive of the governing fact in this' case. It reads as follows:

"October 18, 1919.
"Kernaghan & Cordill,
"New Orleans, La.
"Concerning the property.Nos. 821-823-825-827 Union Street, I beg to state’ that the-only negotiations, for the purchase of this property that I have madia has been entirely through your office. I have not. spoken nor dealt with 1/5. Leo Fellman nor anyone in his office for the purchase of this property and neither h?.s Mr. Fellman nor anyone in- his office spoken to me concerning the purchase of this property.
"Yours respeotfully,
"(Signed) Federal Land Bank of N. 0.,
"By T. F. Davis, Pres."

Issues of fact being alone involved, we will not disturb the findings and conclusions of the able trial Judge, who heard and", saw the witnesses.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the , Judgment herein appealed from be and the same hereby as affirmed^ at defendant's costs in both courts..

JUDGMENT AFFIRMED.

OCTOBER 1st, 1923.


source: Caselaw Access Project

author: Dinkelspiel; J.

license: Public Domain

text:
    NO. 8463
    COURT OF APPEAL PARISH OF ORLEANS
    JULIA MATULEVITCH versus AMERICAN RAILWAY EXPRESS CO.
   Dinkelspiel; J.

The allegations of plaintiff's petition substantially allege: That on or about August 14th, 1918, the American Railway Express Company, undertook to deliver to petitioner at 116 West 73nd Street, New York City, a certain diamond pin, belonging to plaintiff, of the value of Two Thousand Dollars; and alleging further all charges having been paid, and notwithstanding amicable demand, said pin has never been delivered to plaintiff, either in New York, or elsewhere, but continues in the possession of the Express Company, which Company admits this fact. The prayer of the petition is that the Express Company be duly cited, and after due proceedings had, plaintiff have judgment either for the delivery of the pin of in default thereof, for the amount of Two Thousand Doliere.

To this petition the Express Company filed the following Anon answer:. It substantially admits that it is a common carrier, and as such received a oertain diamond pin, consigned by the Hart Jewelry Company to plaintiff at the address mentioned by her. Further averring that subsequent to delivery by the consign- or, respondent was advised that the pin shipped had not been wholly paid for, and that the consignor had a vendor's lien and privilege on said pin, with the right of stoppage in transitu, and under instructions given by the consignor, respondent did not deliver the pin to plaintiff. The prayer of the answer is to be permitted to st±*ps8K deposit the said pin in the registry of the Court end that the Hart Jewelry Company kxs be cited to appear and make any claim it may have for the possession of said pin, and that respondent be dismissed, with oosts, and for all general relief.

Subsequently the Public.Administrator filed a motion in this case, to the effect that plaintiff claimed the ownership of a diamond pin valued at Two Thousand Dollars, which had been consigned to her by the Hart Jewelry Company, and. that the Succession of the late Dino Valesi had been opened in the Civil Dis'trict Court, and further showing that the pin forms part of the Succession of the deceased; that it was purchased by him, and that the olaim ma.de bv ulaintiff, for reasono assigned, was not valid, hence praved that the pin in auestion be turned over to the Public Administrator until the further orders of Court.

Subsequently the Hart Jewelry Company filed its intervention, alleging that plaintiff has no Interest as owner or otherwise, to the diamond pin in question,, and alleging that said pin on June 1st, 1918 was sold to- Dino Valesi, for 81395.00 and there remains due and unpaid, the sum of 8333.01, on Which intervenor olaims that it has a vendor's lien and privilege. Alleging further that' on August 15th, 1918, Valesi instructed your intervenor to send the pin by express to the plaintiff, to whom he desired to give it, and giving the plaintiff's address, as heretofore stated'. That subsequently intervenor deliverer said pin to the American Railway Express Company for delivery to plaintiff, in Hew York. Valesi committed suioide in lew Orleans, and intervenor exeroised its right of stoppage in transitu, in ordeir to protect its vendor's lien for the balance due on the pin. That under the laws of this State, the intention to • donate said pin to plaintiff was never completed by manual delivery henoe plaintiff is not entitled to the pin in question,' but the estate of the deceased, under administration, after paying 8333.01, being the amount for Which tt has a vendor's lien and privilege, was the owner of the pin.

The intervention and third opposition of'the Public Ad- •• minietrator, alleging that the property in question is the property of the Succession of the deoeased, Valesi, was filed; 'that ■ plalisi tiff is not the owner, but that the heirs- of the 'deoe&séd-; áre the;owners of the pin in question ana are entitled to it, 'and-ask9d‘.;$a'C their behalf for judgment in their favor.

On the trial of this ce.se, plaintiff"'-aa;-a witness test!-fled, that, being shown, the'.diamond,'-brooch and-:-aked, wheV^WV^fti^ jliked it or not, she replied that she was crazy about it, and that . having-with her a pearl and a diamond ring, she was asked: You can have it if you want it, provided you give me the diamond and the pearl that you have got. Subsequently she testified that she gave this pearl and diamond to the deceased, Valesi, in exchange partly for the broooh in question; he ms to have given her,this This' occurred in the month of April, 1918; she testifies further that she gave the pin and the pearl to the deceased, and informed the Hart Jewelry Oompany that she would prefer to have a white stone set in the center of the broooh, for she did not like the yellow stone; and then:

Q. When was the next time you heard of it? A, Several weeks elapsed, and I think Mr. Valesi must have been in financial difficulties, beoause the pin wasn’t presented to me, and the only reason why it wasn't must have been beoause he didn't have the money to pay for it, which I didn't know.
Q. Have you seen that pin since this substitution was made for the yellow stone? A. No, X only saw it in the store with thaj: the yellow stone, but not sinoe it was sent to me.

The other portions of her testimony, including cross interrogatories, by a careful examination shows material discrepancies in parts of her testimony, but we do not oonsider it neoess^ry to quote any further at length from same,In connection with her t?s■timony telegrams and letters going to and hsxi between plaintiff and-deceased were offered and filed in evidence.

In behalf of the Hart Jewelry Store, the testimony of Miss Denekamp shows that she had been connected with the Hart •Jewelry Company prior to June, 1918, and when the sale was made •th the -deoeased} she made the sale herself, plaintiff was in New •York at the time.

State exaotly the- transaction from its beginning? A. Mr. Valesi ■báme. in .to look at she pin, and I showed him the mounting, and we {•figured how much it would cost to make up the pin; in the meantime Mrs. Bickhart and Mr. Valesi had a falling out, so he asked me to hold the pin up; whan he got to New York a month or eo after, they had a fuss, and plaintiff wrote the witness a letter of inquiry, which is annexed to this reoord.
Q. Whet wss the price of the broooh that Mr. Valesi first looked et? A. The first was $1155.00.
Q. Did he want any change made in the brooch? A. He always left anything to ma my judgment, he bxsaght bought everything from me, and I told him that the center stone didn't correspondent with the others, so he said if I could put a better stone in it, X believe it would come up to $1245,00 or $1295,00; after I had put the better stone in it, I allowed him $190.00 for the stone, snd then he paid so much for the broooh.
Q. Was delivery of the stone made in New Orleans to Mr, Valesi or Miss Bickart? A, The stone or the brooch.
Q. The Brooch? A. Never, that letter will prove that.
Q. Do you recall her saying in your establishment, if Mr. Valesiwould give her that broooh she would give him her engagement ring?
A. I don't know anything about an engagement ring.
Q. Or any other piece of jewelry? A. No I didn't, know she had any but what he gave her.
Q. Did you hear Valesi offer to give her this brooch provided she gave him her engagement ring? A. No.
Q. Or any other jewelry she had? A. No, my letter will show that too.

fit* Being shown the itemized account between the deceased and the Hart Jewelry Company she says it is correct, and the last check was for $333.00 and ha had died before the check was due it having been post dated. The brooch was finally made up and expressed, and the same kind of stone Mr. Valesi ordered, and.it was thus on the 13th of August.

On cross examination.

Q. When Mr. Valesi ordered that, did he tell you for what he was ordering it? A, Well, they &bx* both looked- at the mounting together one day in the store; I happened to buy the mounting; and in the meantime, like I told you, they had a falling out and he decided not to give it to her.
Q. But didn't he originally intend to give it to her; wasn't that the original purpose? A. Yes, sir.

She testified that the brooch was sent to Hew York, consigned to Miss Bickart. Mr. Hart made the shipment.

Q, I don't know whether I understood you correotly or not; I understood you to say that there was never any actual delivery of the broooh? A. Hot.physically.
Q. Either to her or to Mr. Talesl? A. Ho, sir.

The testimony of Samuel A. Hart states that he is the President of the Hart Jewelry Company, and was so in 1918; that he was RKmsiotsnixxi present at various times when the deceased and Mrs. Bickhrt were in the store negotiating on different occassions. There was nothing said by either one about an exchange of that broooh from him to her for an engagement ring or any other piece of jewelry that she had. SMexc They were in the store á number of times, he never heard any discussion that deceased would give her the broooh if she would give him the ring; never saw a ring. He testifies further, the broooh was never delivered to Tales! or Mrs, Bickart in Hew Orleans; he swears further that Mrs. Bickart was not present et the time the selection was made, and the objection in reference to the stone and its color was made by the deceased. The deceased gave a post dated check for $315.00, the check being dated September 15th, and items, it was agreed and understood that when this check was paid the broooh belonged to the deceased, but he died whilst the brooch was in transit.

We hsve detailed the pleadings, together with the testimony of the parties connected with this case.

It Appears proven that the deceased bought the broooh in question from the Hart Jewelry Company, and had certain alterations, a white stone put in the broooh, and a yellow stone removed, at an extra cost. It appears iurmer mat whilst the plaintiff saw this brooch, her iestiflony to the effect that she^any jewelry to the deoeased in lieu or exchange in order to get possession of the broooh, is not .confirmed, but on the contrary Mr. Hart and Miss Denekamp both testified' that nothing of this ■kind ever ooourred. The deoeased bought this brooch and had the stone changed-of .his own accord, he paid a large amount during his lifetime, and gave a post dated check for the remainder, when he ordered that the broooh in question be sent to plaintiff. Dying in the meantime, the Jewelry Company stepped the Jswmlxjc delivery of this broooh in transit and the. question for our determination, is whether or not under the facts as herein recited, the brooch never reaching the possession of the donee, wss a delivery as contemplated by the law, aotually made to her.

The Civii Code, Art. 1539 provides: "The Manual Sift, that is the giving of ¡smxpxsstl oorporeal movable dm effects accompanied by a real delivery, is not subject to any formality,"

It was held in the case of Succession of Sinnot, versus the Hibernia national Bank, 105 An. p. 7Ó5: "There can be, In louislana, no legal gift causa mortis of a movable, whether it be corporeal or any- incorporeal movable,"

'"The agency of a person to deliver property to the donee thereoi xs revoked by the deamof the donor*

Where me aexxvery of property to a third person, to be delivered to the donee thereof, is not enforcable as a gift beoause of the death, of ms aonor- before actual delivery to the donee, it cannot be enforced as a declaration xn irusi xor the donee,®

Trubey vs. Pease 68 N. E. 1005.
Alexander Brother Syndic of the Creditors of Peter Conrey vs. John Saul, et al. 11 An. 223.
Elkin's heirs vs. Elkin's executor. 11 La. 224.

It is contended ori the other hand, that WtáSX Seo, 11, Article 94, of 1913, makes it the duty of the carrier to deliver the goods to the consignee. Heading the aot in questions "A carrier, in the absence of some lawful excuse is bound to deliver goods upon a demand made either by the oonsginee named lh the bill for the good3, or if the bill is negotiable by the holder thereof." And following various other causes for deliver, adds! "In case the carrier refused or fails to deliver the goods in compliance with the demand of the consignee, or holder, the burden shall be upon the carrier to establishethe existence of suoh refusal or failure."

And we find that in this c.ase the fact that thé oaxrier ■.vas notified that there was an impediment in his delivery of the article in question, first because of the death of the donor, and second because of the claims ms.de bjcxUiKxxxxtflnM of the vendor's ■ lien and privilege, we hold that under these ciroumstanoes the carrier was not bound to deliver the property in question, but on the contrary, acted wisely in doing what it has done.

We have examined the cases cited by counsel for appellant, O'Neill vs. Leinicke, 49 A. 3; Crawford vs. Puckett, 14 A. 649; Succession of Turgean, 130 La. 650; and waxiind in our opinion these authorities differentiate, and a careful reading will show that they in no wise conflict with the authorities we have cited in this esse.

The judgment decreeing that there be judgment in favor of the Hsrt Jewelry Company end against the Succession of Dino Valesi, in the full sum of $332.01, with interest from June 1st, 1918, and recognizing its vendónos lien and.privilege on the jewelry connected herein; and further decreeing that there be judgment in favor of the Public Administrator and the Consul of Italy, •-.8 representatives of Dino Valesi, and against Julia Biokart} decreeing said succession to be the owner of said Jewelry; ■_ subject to. said vendor's lien and privilege; and further rhat tne American Bailway Express Company surrender said jewelry to the Publio Administrator, as representative of the Succession of Dino Vales!, and be hence dismissed, with costs in its favor; is correct.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment of the Court a quo be and the same is hereby affirmed, costs of both Courts to be paid by the plaintiff, Mrs. Julia Bichart.

-Judgment affirmed-


text:
    NO. 8464
    COURT OF APPEAL PARISH OF ORLEANS
    J. P. FLANAGAN, PUBLIC ADMINISTRATOR, versus LAND DEVELOPEMENT COMPANY LTD.
   Dinkelspiel; J.

A motion to dismiss the appeal is filed in this case and the various grounds set up were discussed and decided by this Court in No. 8282, and we refer to that case in order to properly decide the present motion.

Mover oontends mainly that "if an appeal shall lie, the appeal should be taken to the Court whose judgment is sought to be executed."

And "that the matters and things nsniampiadMi complained of grow out of a judgment rendered by the Supreme Court of Louisiana and relate to the execution thereof, in which no appeal lies."

After an examination of the voluminous reoords presented by motions to dismiss, in this oase, we oonolude that this Court has no jurisdiction over an appeal that involves the execution of a judgment of the Supreme Court; but that qualified by the fact that no inferior Court can prevent or hinder the execution of a judgment of the Supreme Court, nevertheless it is quite a different thing when the question presented is not, whether the judgment of the Supreme Court shall or shall not be executed, but whether the method of execution aotively pursued is appropriate to the particular judgment, whether rendered by the Supreme Court or by any other Court.

In other words, whether a Fi Fa is an appropriate method of executing a money judgment against a succession or an Insolvent, and that is the question presented here, wherein the jurisdiction, original or appellate, Is governed by the amount and matter of the controversy.

The amount involved in this controversy being within the jurisdiction of this Court, we hold that this Court has jurisdiction over this matter.

All the other matters presented in referenoe to whether Division "A" or Division "E" has jurisdiction in this matter, has been determined and settled/this Court in No. 8383 and requires no further argument in support of the Judgment there pronounced.

For the reasons assigned, motion to dismiss denied.

-Motion to dismiss denied-


text:
    Charles F. Claiborne, Judge.
    PETER J. FLANAGAN, Administrator of the Succession of Emma WilliamsMartin vs LAND DEVELOPMENT CO. & al. SUCCESSION OF EMMA WILLIAMS MARTIN
    No. 8464
    No. 8282
    April 3rd, 1922.
   On Rule to Consolidate.

The defendant in the first case, No. 105,440 of the Civil District Court, Division "A", having obtained judgnent against the Succession of Enma Williams Martin issued a Fi. Fa. against the Succession. The Executor, who had succeeded the Administrator, took a rule to set aside the seizure on the ground that no fi. fa. could ísbuo against a succession. The rule was dismissed by judgnent rendered July 19th, 1920 and signed June 7th, 1921.

By an order rendered May 31st, 1920 by the same Judge of Division "A", the record in this first case No. 105,440 was consolidated with and transferred to, the Succession of Snma Williams Martin No. 105,354, Division "E".

By judgnent rendered June 25, 1920, the latter order was rescinded.

On November 15th, 1921, the present Executor appealed from both of the above judgnents of July 19th, 1920 and Juné 25th, 1920, and filed the transcript under No. 8464 of this Court.

On March 18th, 1921, the Executor proceeded in Division "E" of the Civil District Court in the case of the Succession of Emma Williams Martin, No. 105,354 and obtained' an injunction restraining the Land Development Co. from proceeding wij Fi. Fa. against the Succession issued in No. 105,440.

By a judgnent rendered April 1st, 1921, the injunction was set aside. From this judgnent-the Executor has áppeáléd. and filad the transcript under No. 8282.

In this Court the Executor moves to consolidated the transcript of the Succession of Enma Williams Martin, being No. 105,354 of the District Court, Division "E" and No. 8282 of this Court with the transcript of Peter J. Flanagan, Administrator, vs Land Development Co. being No. 105.440 of the District Court, Division "A" and No. 8464 of this Court.

The Land Development CcP. objects to this consolidation.

It is to the interest of the republic that there should be an end to litigation. The two questions involved in both cases and in both divisions and in both transcripts are whether the two cases should have been consolidated for the determination of the questions therein presented, and whether a judgnent cfeditor has the right to issue a fi. fa. against a succession to satisfy his judgnent. The same questions aret involved in the two appeals before us, and we think the interests of justice would be subserved by a consolidation of the two transcript! and by one judgnent which would settle the differences Of all parties concerned.

C. P. 422: "When the parties have instituted against each other several suits, either as principal or incidental demands, before the same tribunal, the Court may, at the request of one of the parties, order that the same be consolidated, if, from their nature, they may be compensated, in order that they may be all dpaided by one singLe judgnent". See also C. P. 423. Every reason would dictate that two suits before the-same Court, between the same parties, and involving the same issues, should be consolidated. If the Code has not made any express provision to that effect, it is simply because such a provision was unnecessary". 124 La. 820 (828); 47 A. 1601; 47 A. 302; 11 R. 164; 6 M 7; 2 H. D. 1142.

It íb therefore ordered that the transaript of the case of Peter J. Flanagan, Administrator, vs Land Development Co. being the No. 105,440 of the District Court, Division *A", and No. 8464 of this Court be consolidated with the transcript of the Succession of Emma, Wiliams Martin being No. 105,354 of the District Court, Division "E", and No. 8282 of this Court.


text:
    NO. 8465
    COURT OF APPEAL PARISH OF ORLEANS
    PETER BIVONA versus JULES or GIULIANO FONTANA.
   Dinkelspiel; J.

The issues presented in this osse have been before this Court twice before the present appeal. The substance of the allegations of the petition are that plaintiff, a creditor of the deceased, had departed this life and that a brother .residing in Italy had accepted the Succession and taken possession of its assets both here and in the Kingdom of Italy, which constituted life insurance policy amounting to about 1500.00, and now the present issues are khs solely whether or not plaintiff can take the testimony of the defendant and another witness residing in the Kingdom of Italty, in an end deavor to enforce the .collection of his claim, and it is the sole question presented in this reoord.

Under a proper affidavit to take testimony of Jules Fontana, together with another witnesses, both residing in Italy, and under a commission issued by the Civil District Court, reading, "To any Ambassador, Minister, Charge d'Affairs, Consul, Vice Consul, or Consular Agent, or any other representative of the United States, residing in Ite.ly and authorized to administer oaths", oounsel for Jules Fontana objected and insists upon his objection to the form, manner and method of issuing these interrogatories, and to the service thereof, and with the interrogatories and the commission before him, he propounded oross-interrogatories to the parties sort to testify in this case.

This matter was tried by the Civil District Court and without entering into the proceedings there, the objection to issuanoe of the commission was maintained, the Court holding:

"The facts are that this matter was submitted to the Court and taken under advisement in order to afford counsel opportunity for filing briefs; counsel for the present defendant filed his brief, but counsel for the plaintiff never filed a brief and was requested several times by the Court to file a brief, but stated that the matter was ih Court of Appeal and. it was not neoessary. The Court remembers at this time very well the arguments advanced at the time the matter for disposition was before the Court, and now disposes of the matter by sustaining the present objection and refusing to allow the commission", and from that judgment there is this appeal.

The Civil Code, Art. 1013. "The effeot of the simple acceptance of the Succession, whether express or tacit, is suoh, that when made by an heir of age, it binds him to the payment of all debts of the succession, not only out -of the effects whioh have fallen- to him from the succession, but even personally, • and out of his own property, as if he had himself oontrao'ted the debts or as if he was the deceased himself; unless, before acting as heir, he made a true and faithful inventory of the effeots of the succession, as here above established, or has taken the benefit treated of hereafter,"

This reoord alleges that Jules Fontana,-brother of •the deoeased'had aooepted the sucoéssion, and hence being an heir of age, if that be a fact, in aooordahoe with our Civil Code he is bound for the payment of all debts of the succession, not only that but he is bound personally even out of his own property, unless as the Code provides, he has made a true on d faithful txxxxxrtiq; inventory of the effeots of the succession, and has tácen ¿he benefit ax thereof, -There was no Inventory of this suooession taken;3he heir took possession of the effects as alleged,both here and in Italy, and if that be under bo,-then/our law hx there oan-be no question as to his liability for debts due by the suooession.

It has been’urged that Article 4t3?¥ 437* C. P, reading: "Commissions to examine witnesses out of the State may be dlreoted to any Judge, Justioe of the Peaoe, Magistrate or any other person residing at the plaoe where suoh'witnesses live, or to any commissioner appointed by the Governor of the State"; and it is urged both in brief and in the argument of the defendant's .counsel in this case that the commission in question not being, direoted as required by the Code of Prqotioe, fails, and the judge so held.

We are compelled under the circumstances to differ, with the Judge in his opinion ss to the meaning of the Artiole in question, together with our Civil Code, the Artiole of whioh was heretofore quoted, and to express the opinion, "or eay other person residing st the place where such witnesses live" means any proper offioer who has the authority to aot.

The authorities quoted, after an examination, do not in our opinion maintain the /^¡¡Sesfoaieer advanced by counself for defendant. We are satisfied th»t the provisions of the Code of Praotioe and the Civil Code apply in this case, and hence judgment of the Court a qjia, in our opinion must be amended.

For the reasons assigned, it is ordered, adjudged and deoreed that the judgment of the Court a qua, annulling and rejeoting plaintiff's appliction for $ commission to tahe testimony of witnesses in Italy pertinent to the issu.-o in this case, together with the cross interrogatories applied for by the in this oese, he and is hereby annulled, and avoidedyyand it is further ^ifdered, that the commission in this case as applied fox, together with the cross inter-led ai rogatories, be issued, and the order refusing be annu tbe^oost of defendant^

-Judgment reversed and amended-


text:
    NO. 8466
    COURT OF APPEAL PARISH OF ORLEANS
    HARRY L. HEYMAN versus MR. AND MRS. JOHN E. CALVIN.
   Dinkelspiel; J.

This litigation is based on the following fact's:

In a settlement of prior obligations between the parties to this suit, and on an application for a.further loan by plaintiff to defendant of $280.00, by error $135«00 to have been paid by defendant to plaintiff and. not oredited, leaving the amount of the obligation nixi whioh was originally $380.00 reduoed to $135.00¿ and the obligation itself destroyed by error.

The answer admits the obligation in question, but claims that same was made up adding usurious interest, and henos the amount of $125.00 note destroyed by oonsent of both parties, oonoluded plaintiff in demanding the amount in Question.

We have oarefully examined this reoord, all a question of foot. The witnesses on both sides were heard by the. Judge a quo, and he therefore hading the parties before him, was in a better position to judge than we are, and we are.convinced .that after hearing the parties Interest, the Judge concluded that an error had been committed in destroying .the ob--ligation unintentionally and that’ the amount claimed .to .be ¿hit was due, and he so decided, and we see no reason to distrulfc his judgment.

For the reasons assigned, it is Ordered,"! adjudged and decreed, that the judgment of the Court aquo be- and th«> same is hereby aff irmed, costs of both Courts, to be paid by defendant.

-Judgment affirmed-


author: Charles F.Claiborne,Judge.

text:
    STATE OF LOUISIANA VS JORDY BROS.SLATE COMPANY
    NO.8468
    CHARLES F. CLAIBORNE, Judge.
    December 11th 1922
   Charles F.Claiborne,Judge.

This is a suit for a license as ■contractor in the slating business for the years 1919,1920,1921,«ttfefendants den$ that they are oontraotors}they allege that they are engaged in the retail »v. // business of selling Blates,and also as suboontraotors for laying slates on the roofs of buildings)that they have paid their license as retail dealers for the years 1919,1920,1921)they admit that they have never paid 1¿senses as oontraotors or suboontraotors/that the lioense on the amounts earned by them as sub-oontraotors have been paid by the general oontraotors on the amounts of the suboontraots made by them^among Ahom are Clover,Petty,and Heinrichs,and that to oolilect again from the defendants would amount to double taxation^}and that they are mot liable to any lioense except that of retail dealers.

The learned Judge of the trial court decided in favor of the State and against the defendants,and they ahe have appealed.

In the briefs filed by the defendants in this Court^ they admit that (/the question*/ is narrowed down to the point as to whether they owe a lioense as sub-contractors).

They reply in the negative for two reasonssFlrst that they are net in fact ("oontraotors ) in any sense of the(word), H •and that the revenue law makes no provision for(sub-oontraotors) H // that it is a case of casus omissus whioh oannot be supplied by the Courtbs And second,that sinoe general contractors pay their licenses on the total grÓBB annual reoeipts of theta business they include the amounts paid by them to their suboontraotors and to license the latter would amount to double taxation,- and that the State cannot oolilect from oontraotors and suboontraotors for one and the same thing.

Section 14 of act 17.1 of 1898 page 415 reads as follows! 'That the annual license for the kinds of business herein after named shall be graduated in thirteen classes,as follows,vi

" That f<r every company carry on/the business of master-builders, contraotors^the license for said occupation shall be £ seventh class ,Vrhen said gross annual receipts -are JteOOO are or more ^.nd less than $6000 the license shall be $60 **

Act 62 of 1906 page, 95 is in practically the same language.-

Section 25 of aot Ho.253 of , 1920 page, 433 mentions only the(contractor) \

The error of^tha defendants ks to style themselves sub-oontraotors-ithey are such as regards the owner and others; but as between themselves and the builder they are"contractors"/ for they made a contract directly with the builder,and as suoh are"contractors";and it is upon their reoeipts,as such"contrae* tors " .that the State grades their license,If they make contracts*"" with builders it does not appear that they do not make ttay with owners alsoVif defendants’construction was correct^the result *” would be that no retailer of merchandise would be liable for any license,for the price reoalvaj. by them has already been included in the" receipts" for, merchandise sold by t! A. them *o "TfcalTaru ,. is not the merchandise sold that is taxed in either case;it is the reoeipts for the merchandise sold,which are different in the hands oí eaoh.These reoeipts suppose on the part of eaoh ave oertain amount of profits,and those ara the things taxed.lt is evident that the reoeipts and profits of the one are different from the reoeipts and^ppofys of the othej and belong to different persons .Hor is tiulr double. taxatlon.In one oase the lioense is levied upon the contracts made by the owner with the master builder,and in the other oase it is levied on the contracts made between the master builder &SP- others- Av8 see no error in the judgment.lt is therefore ordered that the judgment herein he affirmed-

Decemher 11th 1922


author: PER CURIAM:

text:
    HERMAN PERLOFF, versus CRESCENT MOTOR COMPANY
    NO. 8470
    April 10, 1922.
    COURT OF APPEAL PARISH OF ORLEANS
    HON. HY. HENSHAW, JUDGE.
   PER CURIAM:

The above entitled cause having come on before this Court for trial on the 30th day of March, 1922, and counsel for plaintiff and appellee herein being present, but counsel for defendant and appellant, though absent at said trial, having advised the Court through his representative that defendant and appellant did not desire to further prosecute this appeal, and that the affirmation of the Judgment of the Lower Court was not opposed;

On motion of counsel for plaintiff and appellee, it is ordered adjudged and decreed that the Judgment herein appealed from be, and the same is hereby affirmed, appellant to pay costs of both courts.


text:
    No. 8478
    Court of Appeals Parish of Orleans.
    Mary Benjamin, widow of Levy Browder versus Standard Accident Insurance Company of Detroit.
   Dinkelspiel; J.

Plaintiff institutes this suit under Act No. 30 of 1914 of the Legislature of the State of Louisiana, known as the Workman's Compensation Act, alleging that certain injuries were received by her during her employment by the firm of Groomes and Elson,.which firm She also alleges no longer does business in thin State and has left no agent in this State upon whom oitation oan be served, and that under Seotions 33 and 34 of the Workman's Compensation Aot defendant insuranoe Company being the Insurer of Qroomes and Elson for the injufies alleged to have been suffered to her, is directly liable to plaintiff, she files this suit, olalming judgment ilreotly against said Insuranoe Company.

In the answer of the defendant, amongst other things admit that it was the insurer of Qroomes and Elson at the time plaintiff was Injured, but denies for laok of information the averments of paragraph thirteen of plaintiff's petition, whioh paragraph oontalned the allegations relied upon by plaintiff authorizing her to bring this notion against the Insuranoe Company defendant herein. From a judgment in favor of plaintiff, defendeni ¡ insuranoe Oo,appells

We are met at the threshhold of this allegation and its denial with what the Compensation Aot, in oases of this oharaoter requires as an essential before an Insuranoe Company oan be sued by an employee of an employer who has taken out insuranoe of this oharaoter.

Section 35 provides: "That if any employer shall carry Insurance against liability under this ACt and said employer shall be or become Insolvent or any execution upon a judgment for compensation is returned unsatisfied an employee of suoh employer or the dependants of the deoeased employee «trnrtrMyhywTif» who shall be entitled to payments under this Aot may enforoe their olalm to payments against the insurer of said employer to the same extent that the employer osuld have enforoed his olalm against said insurer had he made suoh payments, any provision contained In any policy ox agreement of insurance written after th« date of the promolgation of this aot to the oontrary notwithstanding and the making of aoorued payments to the person entitled thereto in accordance with the provisions of this Act shall relieve suoh insurer from liability."

It is elementary he, who affirms, must prove, unless the plea involved a negative.

Art. 313 C. P.

"It is a well settled rule that the burden of proof lies on the person who wishes to support his case by particular fact which lies more peculiarly within his knowledge, or of whiol. he is supposed to be cognizant,"

R. R. Co. vs. Fairex, 40 Ann. 748.

"A judgment by default could act be confirmed against the defendants, without proof of the endorsement of the payee, and of his signature to the transfer At written on the note. Proof of plaintiff's demand is required in all oases when not admitted by the defendants,"

Young vs. Talbot et al. 13 Rob. 518.

There is no evidence in this record to prove as is. alleged in paragraph 13 of plaintiff's petition, that the employers of plaintiff are no longer in business in this State and her > no Agent in this State tqpon whom cltatlop oould bo served.

Nor ec are any of the grounds which,under Section 38 of the Compensation Act of 1914 wentitle plaintiff to bring an notion of this character been alleged in plaintiff' s petition or any proof thereof made.

We are therefore of the opinion that plaintiff has failed to make out her case under the allegations of her petition, henoe this suit as Instituted must fall, and her suit dismissed as in case of non suit.

For the reasons assigned it is ordered, adjudged and decreed that the judgment of the lower Court be and the saq*;j.O;;': hereby annulled,. avoided and reversed and that plaintiff's’suit be dismissed as in case of non sult.


text:
    NO. 8478
    COURT OF APPEAL PARISH OF ORLEANS.
    MARY BENJAMIN, widow of LEVI BROWDER versus STANDARD ACCIDENT INSURANCE COMPANY OF DETROIT.
   ON REHEARING.

Dinkelspiel; J.

In the original opinion filed in thia case, we decided that under the Workmen's Compensation Aot, that no suit could be brought against the Insuranos Company under Section 35 of the Aot without literally complying thereto and we have oome to the oonolusion that in that opinion we were in error; but in the petition of plaintiff, after stating the injuries received by her, she claims compensation on the further ground that defendants were liable to her for iksmakásat the accident in question; thst notwithstanding the admission made in the brief end the argument of her oounsel, that the trade, business or occupation carried on by defendants, Grommes & El son, who were her employers, was thet of manufacturing cigars by hand; that in said trade, business or oooupatlon no mechanical power ’was ;ueed and that said trade, business or oooupatlon was not hazardous and was not subjsot to the compensation laws of Louisians,, claiming that under Section 1, paragraph three of the Workmen's Compensation Law, the question of whether or not the trade, business or occupation, not named therein, is hazardous, may be determined by an agreement between the employer and the employee and that defendants have admitted through signs placed on different parts in their building .that they were acting under the Workmentfe Compensation Aote and further s.dmitted through the testimony of their Agent, this fact, hence liable for the injuries inflicted.

ThiP question has been presented to this Court in the matter of Eddie Dejen vs. Deo Ujffy, whioh case is to be found ■ in the 14th Court o'f Appeal Reports, at page 330 'and there it was held amongst other things:

— "Every person performing services arising out of or incidental to his employment in-the course of his employer's trade, business or oocupaiion in-the following'hazardous trades, business and occupation."

And the Court goes on in its decision to deny this statement-and assert to the contrary end finally says:

"We do hot overlook the fact that this clause added to '-Seotion 5, gives that section the same meaning as that oonveyed by Seotion 4, -and without that last clause it might be that the seotion would have to be interpreted as contended .for by plaintiff; but the olauhe has been inserted, and we have nothing ■to do but to give it effeot."

And in a recent,case decided by this Court, Ella Anderson vs. Tharp, Sontheimer Co. Mo. 7373 of the Docket of this Court, the Court holds in the syllabus:

"Carriage-driving is not a "hazardous occupation" enumerated'by Aot 30 of- 1914, the Workmen's Compensation Aot, and- therefore, a oárriage-driver who is injured while driving for hie employer has no recourse for compensation against him under the--act. * .

And in the body of the opinion the Court goes on to State:

"Where the'statute is confined to hazardous employments, tto^employment' oan be-trested as suoh,„. unless it is, by a fai* ^Sap^t^'Pf the'aqtia:dseS*'red-so to be.» .

Citing numerous .authorities.

And the Court goes on further:

"The express mention of a number o? occupations as "Jia.zar&ous" necessarily excludes those not mentioned."

Quoting num-.reus authorities.

And further quoting fiom th--t opinion:

"Keither oen the plaintiff find relief in 3 or 4 of Section 1 of the Act which rst.de as follows:
"3 If there he or arise any h.-zr-rdcus trade, business or occupation or work other then these herein?hove emmer'-'tsd, it shall oome und“r the pj-'ovieions of this. Act. The question of whether or not e. trade, business, or' occupation not named is hazardous may be determined by agreement between the emnlover and employee, or by submission at the Ínstenos of either employer or employee to the Judge of ths Court which shall have jurisdiction over the employer in a. civil oe.se. The decision of the Court shall not be retroactive in its effect."
"4. An employer and any employee in a trade, business or oooupation not specified in paragraph of this Section, and .any one engaged in a trade, business or occupation .that may not be determined to be hazardous under the operation of paragraph 3 of this Section, may, prior to the accident, voluntarily contract in writing to oome under the benefit s.nd protection of the provisions of this sot with the same force and sffeot.as though 'they had been specifioally included instead of omitted."

The plaintiff did not allege that', under 3; he had agreed with the defendants, or that either he or hie employer had submitted, at any time, to any-competent judge, the question of whether or nc+- his occupation '.vas hazardous.. The learned judge of the Distriof Court was of opinion that thi's agreement s.nd this submission must take place prior to the accident. He 3S.id:

"That-the agreement must "be effected prior to the accident 'or-injury for which compensation is sought is plainly required by Section 3. And' that the' submission to the Cc-urt must also-proceed the accident results ols-rly from the provision that .the'.deoisioh'of. .the Court shall not be retroactive. This ms-°ns vtli'a-t. the'.Court .'a -judgment .3.3 to whether or not the contract comes ^'ith.iq -the-provisione of the act affeota the relations of the . parales' in ,the future, and doje-.nct determine what their relation were, in the-'past."

This point was also decided in the same sense by us in the case, already quoted of Dejan vs. Ujffy, and a writ of review-denied.

Hor doés the plaintiff allege th-;-t v.t any tivtó he lua contreoted with his employer "to come under the benefit end protection" of the-Act of 1914".

Cinder the authorities above quoted we construe that s. blge-r manufacturing company worked entirely by hand is not a hazardous occupation under the terms of the Workmen's Compensation Act, therefore plaintiff cannot recover under this act.

For the reasons assigned, it is ordered, .--.djudged and decreed that plaintiff's suit be dismissed and the judgment of the lower Court reversed.

-Judgment reversed and plaintiff's action dismissed-


author: Charles F. Claiborne, Judge.

text:
    NO. 8478
    COURT OF APPEAL PARISH OF ORLEANS.
    MARY BENJAMIN, widow of LEVI BROWDER versus STANDARD ACCIDENT INSURANCE COMPANY OF DETROIT.
   ON REHEARING.

Concurring opinion of

Charles F. Claiborne, Judge.

Under the Employerc Liability Act, there are two cla'-isee of cccuptione that are protected. They are those th.-1 arc Isncminatsd ss "k..z-.rdi.-u3" in Section 1, p. 2 (a) of the Act; and those th-- c ¿-re ¡p-cle 30 by agreement of the p-'-rtiee or J»y judgment of Court, in both cases. prior to the accident. Court of Appeal, 230, Dejan vs. Ujffy and

•ploy/e in :-.n oooup tion not haz-r-.rdous, because, in the ab.senos of danger, they needed no protection.

It is admitted that the plaintiff who worked in a handur.de oigor faotcry, was not employed in any of the hazardous occny-. fcions denominated in Seotion '1, p. 3 (a) of the Em llovsre' Liability Act of 1314.

.. Nor is it contended that her ocon-.y-tion was a-haze-r-ious/Jf6ne'*r" Other then those .'.-íentioned in said section .aa, provided in 3 of said Seotion 1, for there was np judg-v ment of Court rendered -,ri-:-r to the Bccident nor any agree- //' ment between her and her employer as -provided by p. 4, ape i;/Ti>';-.rgu?d that the plaintiff^by "express or implied*! agraement between herself and her employer^has placed herself under.' the provisions of said Aot according to Section 3 p. l9l namely: the "express or implied" agreement resulting from the fact that, the employer had posted in his premises the notices required b^ Section 13 of said Act.

notioe an agreement between the parties. The notioe -has another object in view. It takes the oonsent of both parties- to make a oontrs-ot. It is not in the power of the employer to abridge his own liability nor the rights of hie employee by posting suoh a notioe. It hsakss has been held that a lessor cannot reoover an lnoreaeed rent, whioh he notifies his lessee he-will demand if he holds over, unless- the lessee oonsehts'.-tc suoh inorea.se. There ie nothing in the law that constitutes this

6 Martin 275; 2 La. 157; 6 Ann. 450; 11 Ann. 253+477, 51 Ann. 77.

plied" agreement resulte from the provisions of Section.3 p. 1 of said Aot which reads as follows: It' is contended,' however, that suoh "express or lm-

•this Aot, except Seotlons 4 and 5, relating to defenses, shall not apply to any employer or employee engaged in .the trades, businesses, and ooovg>r.tions speoifled in paragraph 3’ Section 1, nor to those that may be determined to be hazardous under the operation of paragraph 3 of Section 1, unless, prior to the-, injury, they shall .have so elsoted by agreement, either express or implied, as. hereinafter .provided. " "Seotion 3 P, 1. "Be it xurther -enacted, etc. That

It is evident, as provided hy the very words ,of this law, that 'this seotion relatee to the relations of' employer ■and employee.in "hezardous""occupations^hereinafter provided" in ps. 3 anti to 6, and not to the' non-hazardous .occupations mentioned in-the "prior pa 3.

of hiring, verbal, written or implied, b.etween i^yvoiqjlcyex..-■ or employee engaged in the trades, busi; ’ ’ specified in p^-rs graph 3 of Section 1, or engaged in the trades, oueineesea or ocoupiticns that may be determined to be hazardous under-thi op-.ration of paragraph 3 of Section 1, made subsequent to the time provided for this aot to take effeot, shall be presumed to heve been made subject to ths provisions of this Aot, unless there be as a part of ss-id oontraot an express statement in writing not lesa thr-n thirty ie.ys prior to the aooident, either in the ooncraot isself cr by written notioe by either porty to the other, tlvvt the provisions of this Aot other than Sections 4 and 5 are not intended to apply, and it shall be presumed th^t the parties have eleotsd to be subjeot to the provisions of this Aot -'nd to be bound thereby..#

The "express" agreement mentioned in Seotlon 3 p. 1, is the repudiation "in writing" of the Aot; and the "implied" greement i3 the silence of employer or employee, by which it is "presumed that the parties have eleoted to be subjeot to be bound thereby."

But it is ¿impossible to esoape from th8 olear and unambiguuous l.nruage of p. 4 of Section 1, page 46 that the only way in -which an employer or an employee enegsged in an occupation not specified as "hazardous" by the Aot itself, nor adjudged to be so by a judgment -of the Court prior to the accident, can ocme under the operation of this Aot is, in the language prior of the law, for them "pxJcxizx to the accident to voluntarily contract, in writing, to come, under the benefit and protection of the provisions of this Aot with the same force and effect as tóame though they hid been speoifioally included instead of omitted. "

It is conceded in this case that plaintiff’s employment was not hazardous; it is not contended that a judgment of Court declared it to be hazardous, nor that the plaintiff and defendant "voluntarily' contracted in writing to oome under the .- til". benefit and proteotion'of said aot; therefore she oanhot-'re-. cover, ‘-and there mustVbe judgment foa? -defendants-. - -A- " "


text:
    NO. 8479
    COURT OF APPEAL PARISH OF ORLEANS.
    WILLIAM CROMILLER versus HAYDEL TRANSFER COMPANY INC.
   Dinkelspiel; J.

This is a damage suit.

Plaintiff sues, alleging that on or about August 7th, 1921, a truok owned by the defendant Company, operated by An employee of said oonipany, negligently run into the automobile of plaintiff, while the wane was parked in front of the premises No. 1730 Napoleon Avenue of this City.

Alleges further that his automobile was parked on the right side of the Avenue, in striot compliance with the Traffio Law of this City. Alleging further ths.t the damage was oaused solely by the gross fault, negligence and oarelessness of the driver who operated said gruok at an unlawful. rate of speed, in violation of the Trafilo Laws of this Oity, and in failing to turn to the left in passing petitioner's automobile, whioh was parked on the right side of the said Avenue, running into and demerging petitioner's automobile, without fault on plaintiff's part.

Alleging further that plaintiff was compelled to have the automobile repaired, whioh ooet the sum of í339.50, for whioh amount Ska he prays judgment with legal, interest.

She answer first wan a general denial; subsequently there was filed a supplemental and amended answer, wherein it is alleged that if a collision happened as charged by plaintiff, the same was the result of an aooident, over whioh defendant had no oontrol either at the tias of the happening nr at any time previous thereto.

Alleging that a oottex pin, holding a nut on part of the steering wheel sxxtóuu&g broke during the operation of defendant's truok, whioh oaused the nut that said pin held, to fall off and as the result of the falling of this particular nut, the steering gear or wheel became useless and your respondent’s driver was unable to stop hie said truok and that defendant employs a mechanic, whose duties were that the truoks of defendant were kept In first olass oondition; that the said truoks were given a thorough inspection and that the particular truok had been inspeoted a few days before the happening of the falling of the nut, whioh was in proper oondition and therefore, under the oiroumstanoes, defendant oould not be held responsible, and prayed judgment for dismissal of plaintiff's suit and costs.

And from a judgment in favor of plaintiff there is this appeal.

An examination of the testimony in this oase, both for plaintiff and defendant, satisfies us that plaintiff's automobile, under the oity ordinances was parked on the right side of Napoleon Avenue, and the defendant'a truok, drivsn at a rapid rate of speed, whether racing or not, with another ■automobile, driven in a reokless, careless manner,, by its ahacip ohvuffeur, ran into plaintiff's automobile, whioh was parked as stated before, where it should be, was standing ip. a proper position, had the right to do so, and the ohaffeur of the truck without reason or right, ran into and oaused the damages olaimed .

We further find that plaintiff was without fault of any kind or oharaoter and that defendant, through its driver, oarelessly and negligently ran into and oaused the damages to plaintiff's automobile, and for whioh he paid, and for whioh he now olaims damages, and without going fxx into the testimony either pro or oen, but after oareful consideration, we have oome to the oonoluslon that the defendant's claim that the Injury was oaused from defects which o.ould not have been avoided by the exerolse of the greatest oars and diligence on the part of the persons employed in the construction and maintenance, hence defendant not liable, and the authorities there cited by defendant's counsel, are inapplicable.

The Judge of the Court aqua having seen and heard the witnesses in this case, was in a better position than we, to determine this case, which depends in its solution, entirely upon facts.

For the reasons assigned, it is ordered, adjudged and deoreed. that the judgment of the Court aqua be and the same is hereby affirmed, with costs of both Courts against the defendant.

-Judgment affirmed-


author: By WILLIAM A. BELL, Judge.

text:
    JEFF. D. MATHEWS & BEN. B. MATHEWS, doing Business under trade name of Mathews Brothers, VS S. CORNEMAN
    NO. 8481
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE.
    APRIL 30, 1923.
   By WILLIAM A. BELL, Judge.

Plaintiffs, doing Business as a real estate firm under the name of Mathews Brothers, sue defendant for $300.00, an amount for which, they claim to have suffered damages By defendant's alleged Breach of a certain-contract or offer to purchase improved real estate in the city of New Orleans, designated as Bos. 1824-26 Terusichore Street.

Defendant answers By admitting that on Friday, September 9, 1921, he signed the alleged offer to purchase which is annexed to plaintiffs' petition, But claims that he was induced to do so By plaintiffs' representations to the effect that the tenement property in question rented for $60.00 per month, or the sum of $30.00 instead of $26.00 per month for each side; that said representations were false and made with the intent to deceive and did deceive defendant, who. Because of such fraud, cannot Be held liable under the contract.

There was judgment for defendant dismissing plaintiffs' suit

The facts in this case are simple and we find them to Be as follows:

Defendant noticing plaintiffs' "For Sale" signs on the property Bos. 1824-26 Terpsichore Street, had his daughter telephone this firm on Friday, September 9, 1921 to inquire about the property. Plaintiffs sent one of their employees or representatives to Interview defendant, who then And there signed the offer of purchase, in which it was agreed that defendant would pay $6400.00 cash for the property and would immediately deposit with plaintiffs ten per cent, of the purchase price upon the owner' s (wr it ten acceptance of the offer. The testimony of Both defendant and his daughter is to the effect that the defendant, Before signing, made immediate and oareful inquiry of plaintiffs' representative as to the rental value of the property and was told By him that same was then renting for $30.00 per month for each side. The day upon which- this occurred being a I'riday, defendant refused to make the required deposit on what he observed as the Sabbath day, but agreed to do so at his lawyer's office on the following Monday afternoon. Upon defendant's failure to keep this appointment, plaintiffs sent their same representative to defendant's house, where defendant then told him that he would not purchase the property because ’-c had been deceived as to the amount of the rentals, and had le;- -;->d on the in9 tervening Saturday from his neig’-bor, one of the tenants of the property, that it was renting per side for only $26.00 per month. Plaintiffs' agent denies that he ever made any such representation to defendant or that he ever discussed with defendant the subject of rents prior to the signing of the contract of purchase. He further states that this subject was only brought up when he went later, on the following Monday, to defendant's house to collect the deposit. He admits, however, that he knew 03.3 side of the house was renting under a written lease for $26.00 per month, and that he did in fact represent to defendant that by the time defendant would take possession on or by September 30th, the rent would be $30.00 per month per side. These admissions, coupled with his unsatisfactory explanations to the court as to why he subsequently wen. with defendant to call on the tenant who had disclosed the real facts about the rent, lead us to believe that the defense urged in this case is well founded and that the testimony of both the defendant and his daughter constitute a preponderance of evidence to which full credence should be given. Under Irticle 2547, H. 0. 0., the parole evidence offered by defendant in support of his defense was, under the circumstances, presented in this suit, fully admissable. The ruling in Great Eastern uil and Refining Ooinpsny v. Bullock, 151 la., 210, eited by counsel for plaintiffs, has no application to the facts in this case. It was the duty of plaintiffs'agent, upon inquiry made of him. to give fall and truthful information about the rents and not to mislead defendant, as we believe was done in this case. We find no error in the ruling of the trial court.

If 18, THEREFORE, ORDERED, ADJUDGED AHD DECREED that the Judgment appealed from be and the same hereby is affirmed, at .plaintiff's oosts in both courts.

JUDGMENT AFFIRMED. APRIL 30, 1923.


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    SUCCESSION OF EMMA WILLIAMS MARTIN and P. J. FLANAGAN vs LAND DEVELOPMENT CO.
    Nos. 8282 and 8464 Consolidated
    June 19th, 1922.
   CHARLES F. CLAIBORNE, JUDGE.

The Succession of Emma Williams Martin nas opened in 2EEe Civil District Court, ’under the No. 105,354, and was allotted to Division E. P. J. Flanagan was appointed Administrator.

Flanagan brought suit against the Land Development' Company.to annul a tax sale of certain property owned by Etana Williams. This suit was allotted to División A of the Civil District Court and bore No. 105,440. There tos a judgment in favor of the Succession of Williams annulling the tax sale, and in favor of the Land Development Co. against the Succession of. Williams, for the price paid by the Company at the tax sale and for all other taxes paid by it. See 145 La. 843. This judgment tos recorded in the District Court, and by consent, a rule was made absolute on November 7th, 1919 ordering

"execution to issue in favor of defendant (the Land Development CompanY) for each and all of said items of taxes, interest, and costs".

Under this judgment the property recovered by the Sue- . cession of Williams was sold under a Fi.Fa. issued November 17th, 1919, The price of sale' tos insufficient to satisfy the writ, leaving a balance unpaid of $171.73.

Thereafter Flanagan, Administrator, filed suit against the Land Company to recover from it the rents and revenues of the property collected by the Land Development. Company during its possession of the property alleged to amount to $2,970.00, bearing No. 131,319 Division®, The Land. Company then issued an alias Fi.Fa-. and caused to be seized all the rights, title and interest of the Succession in the suit agai.nst it above mentioned.

On May 31st, 1920 by order of the Judge of Division A, the suit of Flanagan vs Land Co. No. 105,440 was transferred to, and consolidated with, the Succession of Suma Williams No. 105, 354 Division E, on an ex parte application of the Administrator of said- Succession.

I.On June 25th, 1920,the Judge of Division A rescinded the above order.

From this judgment the Succession appealed on November 15th, 1921.

II On June 29th, 1920, the Succession filed in No. 105.440, Division A, a rule to set aside the seizure of its suit against the Land Company, No. 131,319, on the ground

"that the issuance of a writ of Fi.Fa. on an ordinary judgment against a Succession is illegal, null, and void".

The Land Company excepted that the proceeding by rule was not authorized by law,' and that the judgment heretofore rendered on November 7th, 1919 ordering the execution of the Judgment of the Supreme Court was res judicata.

The Court by judgnent rendered July 19th, 1920 maintained the exception of res judicata and dismissed the rule. From this judgnent the Succession appealed on November 15th, 1921.

III. On March 18th, 1921, the Succession filed in No. 105.440, Division E, a petition praying for a judgnent adjoining the Land Company from prodeeding under the alias Fi. Fa. issued from Division A to sell the rights, title, and interest of the Succession in its suit No. 131,319 against the Land Company. A preliminary writ was issued as prayed for. The Land Company then took a rule to set aside the injunction on the ground that. Division A alone was seized, of jurisdiction .of the suit of the Succession of Williams vs the Land Company; that it had set aside its order transferring the case 48 Division E, and that therefore Division E had no jurisdiction of the injunction. By judgment rendered April 1st, 1921, the judge of Division E made the rule absolute to the extent of setting aside the preliminary order of injunction rendered March 18th* 1921.

From this judgnent the Succession appealed.

I.

Counsel for appellee argues that no appeal can be taken from an order setting aside a previous order, to transfer a case from one division of the Civil District Court to"another. In this he is right, 34 A. 1216, If the appeal from that or dear, was the only appeal in the case, we would have to dismiss it. But in the same case another judgnent was suDse.quently rendered maintaining an exception of res' judicata, and di smi'ssing-.plaintiff's suit. This was a final judgnent ás it was the last one which oould have been rendered in the -casá by^bhej^fstrict Judge. 117 La. 221. Plaintiff appealed from the^judgneno and his appeal carried with it appeals from all previous interr looutory judgnents. 143 La. 480. Shroeder vs Conner Ct. Appeal.

The seizure of plaintiff's suit was made-May 25,1920.' The order to consolidate, was rendered May 31, and cancelled ' June 25, 1920 and signed November. 10th, 192Í. The motion .to set aside the seizure was made June l.stj 1920,

It is settled law that when a Court is seized of jurisdiction. of'a subject mattéá or of property; no other court may assume jurisdiction of the same matter, and that,-.all quesn' ti-ons of amership of-the property, in the control Of-:the Court, or of privileges upon said property.and its proceeds, must-be determined.by the Court.in possession of.the property.

C. P., 126 5 5 provides -tlgats

fWhenever-'a. .corifiLct- of privileges, arises. between'--'different rcr.e'dito,rs,-;;;all.''the suits'and'qiaims bé-' tr#síehxed.tp.the C.qprifbf whose>má#af<í ty-.on-.^hfch' tbe: ^riyflege. b'rr ii tq be:.;;eaeibi'sed, m'a.'-firsf served^n^esbe pfqcess, .otó • definitive bmibutiopf a# sa-i'd-.-Cburt «ball probe# 'ólÉBft.and.fi,'^bts: of, mortgage ftrfty ihgi. tb, theif -f dnK\ aM;::;dighi'ty, ’in a suitenery" •after notifying all parties interested".

Sec. 10 of Rule Vlll of the Rules of the Civil District Court adopted June 22,1915 reads:

"Whenever, by reason.of the institution or pendency of two or more suits, by creditors claiming as against a common debtor, Conflicts may arise as between such creditors, whether as to the validity of their claims, or to the legality of the seizure levied, or as to the Order in which they shall be paid, and there is a common fund, which is the subject of such controversy, all such suits shall be assigned to the division first acquiring jurisdiction quoad such funds".

This section has bee^repeated in the Rules adopted October 15th, 1921,

In the case under consideration,the suit seized is in Division K and so is the Succession to which the fund will belong if realized.

In 10 La. 587 the Court said that the Court of Probates was the proper tribunal to apply to to prevent funds of a succession from being diverted.

As we said in our opinion on the motion to consolidate the two transcripts for the purposes of the appeal, the question involved before both divisions is whether a judgment creditor has the right to issue a iffifa against a succession and seize ther assfets in the hands of the Administrator. It is to the interest of justice that this question should be referred to the judge of one Di vision,> and it is more in-accordance with the rules of &JÍ. law^jjhat the question be decided by the Judge of the Court" having. jurisdiction over the Succession and its property;

II.

We do not think that the exception .of res judicata, should have been sustained. One of the elements of the plea is wanting* The thing demandpd-must be the same. In consenting that execution of the judgment' of the. Supreme'-Court take place and that V&hir.claims ¡?J:--botjj/ parties,, the Administrator of the Succession of Williams cannot be considered as having consented that a suit which he had not then filed should be seized under an alias fifa against the Succession-, or that the order of execution should extend to that asset.. C. C. 2286 (2265).

The right to issue the fifa or to seize the assets of the Succession was never raised nor passed upon. 12 R. 327; 35 A. 298; 38 A. 854; 50 A. 637.

"A decree of res judicata applies only to natters directly adjudicated". 50 A. 637 (640); 116 La. 507; 119 La. 555.— 3 2~ C2-

III.

As we have just decided that the case of Flanagan vs Land Company No. 105,440 Division A was properly transferred to Division E, the judgnent of said Division E setting aside its preliminary injunction must itself, be set aside.

It is therefore ordered that the following judgnents be reversed and annulled, to-wit:

lo The judgnent- of Division A in No. 105,440 entitled Flanagan vs Land Co. rendered June 25th, 1520

2o The judgnent of Division A in same No. 105,44C rendered July 19th, 1920

3o The judgnent of Division E in the Succession of Emma Williams No. 105,354 and Flanagan vs Land Development Co. No. 105,440 rendered April 1st, 1921.

And it is now ordered that the suit of Peter if. Flanagan, Admtor. vs The Land Development Co. No. 105,440 of the Civil District Court, Division A be transferred to Division E of said Court and be consolidated with the Succession of Emma Williams Martin No. 105,354 of the Civil District Court, Division and that these cases be remanded to be tried according to law and to the views herein expressed - the costs of appeal to be paid by the Land Development Company, and costsof the District Court to await the final determination of the suits.

Judgments reversed and cases remanded.

June 19th, 1922/


author: BY: WILLIAM A. BELL, JUDGE:

text:
    SUCESSION Of MRS. STELLA WHITEHURST, Wife of CHARLES A. TESSIER, SR.
    No. 8482
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE
   BY: WILLIAM A. BELL, JUDGE:

Liquidators of the Prudential savings and Homestead Society, have moved for dismissal of the Appeal taken to this Court by the Administrator herein from a Judgment in mover's favor recognizing it as a creditor in the amount of Fourteen Hundred Dollars, with interest, etc., against the Succession of Mrs. Stella Whitehurst, wife of Chas. A. Tess.ler, Sr. The record shows that the amount to be distributed, that is the inventory value of the estate, to be Five Thousand, .seven Hundred and twenty-five Dollars (§5735.00). Because of the facts, the motion to dismiss the appeal taken to this court is well founded, but under Act 56 of 1904,

IT IS ORDERED:

That this cause be and the same is hereby transferred from the docket of this Court to the supreme Court of Louisiana, the Clerk of this Court being directed to lodge the transcript in this case together with a certified copy of this order with the Clerk of the Supreme Court, provided that on or before the 10th day of February 1923, the appellant herein, or his attorney of record, shall have made oath, duly filed before this Court, that the appeal herein was not made for purpose of delay..

It is further ordered that the costs of appeal to this Court be borne by Appellant herein.

January 30th, 1922.


text:
    NO. 8487.
    COURT OF APPEAL PARISH OF ORLEANS
    EDWARD J. KESSLER, EXECUTOR et als versus NEW ORLEANS GAS LIGHT COMPANY.
   Dinkelspiel; J.

Plaintiff instituted this suit in hie capacity as Executor of the estate of .his deceased wife, Jasmine Hawthorn and also in his capacity as natural tutor of his minor children, Edward J. and George Stoppered Kessler, xndxihxit plaintiff is joined by his daughter, Merthyr Edwina Kessler, who is an emancipated minor, alleging that on or about July 9th, 1917, oertain agents and employees of defendant Company aoting under the orders of their superiors,broke into, and entered the dwelling house No. 3433 Mars,is Street, in this oity, being the property of the ohildren of his deoeased wife, end-took from said premises, a oertain water heater and other fixtures, all the property of the ohildren of his deoeased wife. Alleging further that this trespass and taking of property was done without the knowledge or consent of plaintiff, and that he was compelled to employ counsel to recover possession of said property, after repeated demands’ the defendants restored the water heater but failed to restore oertain pipes leading to the roof and oertain other pipes necessary to permit water to escape, hence the heater was useless. Alleging further that it has been difficult to rent the dwelling house because of the water not heater/being in good condition for use and that a large e-mount of rent has been lost and stating in his petition that in oonsequenoe of the trespass and illegal removal of the said water heater and fixtures was the cause of mortificetion and humiliation to plaintiff and impaired their credit and good name in their community and among those who knew them. Further alleging that it will require about Fifty Dollars to restore the piping and place the heater in good order and that they have suffered in loss and rent about $350.00 and they are entitled to recover from defendant for attorney's fees, $300.00, snd fox the humiliation, loss of credit f.nd good name they are entitled to recover One Thousand Dollars; they pray for judgment against the defendant in the sum of §1500-. 00 and for general relief.

To this petition there were filed several exceptions; first, that said plaintiffs were without legal right to sue or stand in judgment; seoond, that there was a misjoinder end a nonjoinder of parties plaintiffs; third, ths.t said petition is too vague, uncertain and indefinite to enable defendant to safely answer thereto; fourth, that the petition disoloses no l-egal cause or right of action.

Save and except the third exception, that is, that said petition is too vague, uncertain and indefinite to enable defendant to safely answer thereto, the rest of the exceptions were overruled.

Subsequently plaintiff filed a supplemental petition setting out more specifically the place where the house on Marais Street was entered, and the property heretofore described taken into the possession of the defendant corporation, and further stating specifically the employment of counsel in an endeavor to regain their said property, for several months after the removal of the heater, thereby losing twenty dollars per month, making a total loss of rent, §79.60 and alleging further in this supplemental petition that a oopper coil was broken and replaced by plaintiff at a oost Stated in his original petition; this supplemental petition was sworn to by George B. Smart, the attorney of plaintiff and the judgment prayed for is the same as prayed for in the original petition.

The answer admits that on July 9th, 1917, its employees did enter the dwelling and removed a certain water heater, boiler and vent pipe, but denies that its employees broke into the said dwelling house, denies that plaintiffs were obliged to employ counsel to regain possession of their property, admits that it restored seid wafer heater, and further denies a.ll the material allegations .of plaintiff's petition, and prays for a judgment in its favor.

The testimony in this case both for plaintiff and defendant is in the main portions thereof, admitted, but when thus stated, the testimony in pa.rt, particularly, as to how this heater was taken from the premises, whether the doors were open, os closed, ?nd whet portion of same was taken, under what oirbumstanoes, is contradictory, but the eviaenoe on' the whole satisfies us thet the defendants through their agents entered the prem ises of plaintiff and did take therefrom the heater in question and a part of the pipe attaohed thereto, and subsequently through an agreement between the company end'the Executor of the Succession, Edward J. Kessler finding that there was a small balanoe due by the deoeased wife, the owner of the property, on the promise of the Executor to pay same, whioh he did, the property in question was to have been returned; it is further proven that notwithstanding repeated letters and' frequent calls by. the Ex-eoutor on offioers of the Company, the heater was not returned for a long time, about the beginning of November, 1917, after having been kept by the Company from July 9th, of the same year; it is further proven that.during this time it was very difficult for plaintiff to rent these premises, and when he did so, he did it for a muoh smaller sum than it had been rented for prior to this occurrence, and when finally the heater was replaced, whioh was several months thereafter, at one time, being rented for about sixteen dollars per month, subsequently when•everything was satisfactorily replaoed, it rented for twenty dollars per month; it was admitted in the argument in this oe.se that there wee a loss of rent during the time mentioned of about thlrtv four dollars, that the installation and other oosts connected-with this heater amounted to something-like eighteen dollars, whilst on the othér hend plaintiff asserts and swears that the loss of rent was much larger, and It cost him thirty dollars simply to replace coils, in order to have matters properly adjusted and get this heater in perfeot shape.

It would serve no useful purpose to quote testimony of both plaintiff and defendant, but we are of the opinion that the entering into this plaoe in an illegal manner, and keeping this heater for the time thev did, after positively agreeing to return it from time to time and not complying therewith, gave rise to a loss of rent end to other expenses in connection therewith. There are numerous deoisions in the reports of both our Supreme Court and in our own Court,- whloh’ maintain the faot that in a- suit for damages, on. aooount qf a trespass, the trouble, and expenses the plaintiff has been illegally put to, have to be considered in estimating damages.

Cooper vs. Coppell, 39 Ann. 218.
Hamilton vs. Soloman, 137 La. 240.
Greenlee vs. Singer Sewing Machine Co. 10 Ct.App.271.
Bettis vs. Singer Sewing Machine Co. 10 Ct.App.273.
Lalonier vs. Werlein Co. 13 Ct. App. 225.

On the question of attorney's. fees:

It has been frequently decided that, unless in an extraordinary proceeding, such as an attachment, or injunction, attorney's fees oannot be. recovered and in one of the oases- cited in the brief of-plaintiffs, Chappius vs. Waterman, 34 An. 61, that question was determined, and so we might' multiply deoisions to the same effect without serving any useful purpose.

In so far as the exceptions are oonqerned, to this petition, filed by defendant, we are o'onvinoed that both under the Civil Code and the authorities, same were properly overruled.

C. C. 235.
Black vs. Carrollton Ry. Co. 10 An. 33.

There can be no doubt at this late date but that the father of minors, together with the emancipated minor, have a legal right to institute and prosecute suits in the interest and protection of their wards, and it requires no citation of authorities to prove this fact.

Tie are of the opinion that defendants violated the rights of plaintiff, when they entered these premises, without permission to take possession of the heater in question, they did so without the oonsent of the owner, without any authority from him so to do, and without his knowledge, but more than this, after through a letter from the defendant oompemy, the bal&noe due for- this heater being announoed, $3.50, which under the agreement made between Mr. Kessler, and one of the offioers of the company, was to have been paid, and was paid, they should have restored the fixtures in question without further to do, and not give cause for plaintiff to have been disturbed in any. manner in the possession of the property together with the heater in question, but defendants did not do this, although frequently requested and promising to return the heater and during the time oomplained of there was an admitted loss of thirty four dollars for rent, it was proven that thirty dollars was expended by plaintiff to replaoe the oo.il, end we believe that under the admitted and undisputed facts of this record, plaintiff is entitled to damages in tie sum of Fifty Dollars for the trespass on his property and the taking possession of the watplaintiff er heater and other fixtures of the/dafasdsni and putting them into such a position that tksx* their friends and neighbors and others who knew them would get the Impression they were not worthy of the oredit end respect which they otherwise had and whilst there is no evidence in the record of any kind or character effecting the standing of plaintiffs or. their family,- yet we think they'are entitled to the amount allowed.

For the reasons assigned, it is now ordered, adjudged and decreed-that the judgment of the Qoürt aquá be amended and the amount allowed originally, $353.75, with legal interest from November 14th¿ 1931, be reduced to the sum of $114.00 with legal interest from the date specified to wit: November 7th, 1931 until pa^dan¿ as thusamegcted the judgBMnt ipaffirmed^^oats of -•pipeee}: hi U*e lo>Vtfk~,"Oóürt 'tg^bg-pgirdr-by -eteTendiw&t.

-Judgment amended and affirmed-


author: By Dinkelspiel; J.

text:
    NO. 8488
    COURT OF APPEAL PARISH OF ORLEANS.
    LAND DEVELOPEMENT COMPANY OF LA. LTD. versus CENTRAL LAUNDRY COMPANY LTD.
   By Dinkelspiel; J.

This action instituted by the plaintiff olaiming to be the owner of a oertain lot of ground, giving its boundaries, situated in the City of New Orleans in the first dlstriot, designated by the No. 16 in square No. 387, and olaiming that the defendants illegally and without km* oause, had no rights whatever to said property and olaiming that the Oivil Sheriff for the Parish of prays Orleans put petitioner in possession thereof and/slitim* judgment against said defendant for use and occupancy of said property at the rate of (15.00 per month from the 1st of June 1919 to ttaaiMB Aeiimemlx final delivery.

Exception of no cause of aotion being overruled an answer was filed whloh finally winds up with a prayer for a dismissal of plaintiff's suit and that defendants having actual, physioal and oorporeal possession of the property in question and denial of plaintiff's oase.

On trial of this oase before the Oourt aqua, the judgment amongst other things "When, after hearing the pleadings and the evidence, the Oourt considering the law and the .'evidence to be in favor of plaintiff, for the reasons orally assigned renders judgment in favor of plaintiff as prayed for/

A motion to dismiss was made, alleging that the appellant failed to bring with the transcript of appeal, the testimony adduoed in the lower Court and without such testimony the oase oaj not be heard and decided by this Court on its merits.

The seoond ground, that the appeal bond is defeotive beoause signed by L. x; Oonrad, a party in interest.

The Code of Practice, Art. 898, together with decisions of this Court govern matters of this character and we find in the ase of Harris vs. Hays, 8 La. An. p. 433, the court saysl We are unable to reverse this decision, inasmuoh as the reoord oontains no part of the evidence on whioh it was rendered, notwithstanding the certificate of the olerlc that it le a oomplete trsnsoript of all the documents filed, of all the evidence adduoed, and of all the proceedings had on trial. Again quoting from the same decision: "It may further be remarked that the plaintiff has offered no explanation of the faot of hie having filed a record, which, though certified to be complete, appears by his own averments, to be iraperfeot — being content as it would eeem, to rest hie hopes for a reversal of the judgment on an irregularity, not of his opponent, but imputable rather to himself. He oannot profit by his own wrong. It was hie duty to bring up the evidence on whioh the oase Was tried. Not having done so, the Court hae not the means of reversing the judgment appealed from; but must presume that it was rightly rendered and on sufficient eviaenoe."

In the case of Hoover against York et al, 33 La. An. p. 652, in the syllabus of that oase, the Court held:

"The fault is attributable to Appellant, in oase of an incomplete Transcript, when it is by his directions that the Olejrk has omitted some of the documents offered in evidence."

And in the body of the opinion at page 654 the Court says: .

"Neither at nor before the time for argument was application made for time to correot errors as allowed by Art. 898 C. P. No application was made for mandamus to compel the clerk to grant a proper certificate, if he had illegally refused so to do, as allowed by C. P. 899. No oertiorari was asked to perfect the traneoript if incomplete."

Again at page 6S5 the Court goes on to say:

"It has been the oonstant praotioe of this Court, from the date of the adoption of that aot, to dismiss appeals for thifc oause under such clroumstances." Citing numerous authorities.

For the reasons assigned it is ordered, adjudged and decreed that this appeal be dismissed at appellant's costs.

Motion to dismiss maintained.

Claiborne J, not having heard the argument takes no part.


text:
    Charles F. Claiborne, Judge.
    LAND DEVELOPMENT CO. of LA., LTD. VS CENTRAL LAUNDRY CO.
    No. 8488.
    April 10th, 1922.
   CHARLES F. CLAIBORNE, JUDGE.

On Motion to Dismiss the Appeal.

From a judgment conde; Ang .Am to deliver possession of certain premises to plaintifi. the defendant has appealed.

The plaintiff and appellee has moved to dismiss the appeal on the following grounds:

lo "That the appellant fails to bring with the transcript of appeal the tss-.niony adduced in the lower Court, and without such testi.:..ay, the case cannot be heard or decided by this Court on its merits", llo "That there is no -ppoal bond filed. That what appears to be an appeal bond is signed by L. E. Konrad, as surety; that the said L. E. Konrad is the rea^party in interest in these iroceedings and is the lessor of the defendant, and i.; wrefore concluded by the judgment rendered in this ca >, which judgment is res judicata as to said L. E. Konrad, and therefore, being the party cast in the suit, is not competent to sign the appeal bond a3 surety, and the appeal therefore comes up wit}> out an appeal bond". ’ ;

On the original trial of the motion to dismiss submitted! without argument or briefs, the appeal,was^dismissed upon the first ground based upon .....111 m iní iiw anterior to Act 229 of 1910. On an application for a rehearing, the appeallant called the attention of the Court to said Act and to the decision in Quaker Realty Co. vs Posey, 130 La. 941.

Upon the authority of that case, the rehearing was granted, and the appellant given fifteen days to bring up the missing testimony. In pursuance of said decree this Court i ssued a certiorari ordering the Clerk of the District Court to transmit to this Court all the testimony, exhibits, and documents on file in this cause. The same have since been brought up.

le The author!tJTquoted, and relied on, by appellee in support of hÜJ motion are all anterior to the year 1910, the most reoent being 38 A, 34 in the year 1886, Buttjie Act of 1910 brushed away the technicalities preireiehBg anterior thereto. It reads as follows?

An Act.
"In relation to the taking of appeals in Civil suits and the taxation of costs thereon."
Be it enacted & o: That the appeallant may, on taking Ms appeal, or witMn three current days thereafter, file with the Clerk of Court, a written list of the portions of the record to constitute the transcript of appeal. The appellee may, within five days after such notice by appellant to the Clewk, designate in the same manner such other portions as he deems necessary. The Clerk»shall prepare the transcript as so directed, and when so prepared the appeal shall not be dismissed on the ground of the transcript being defective, but the parties and the Court shall have the right to cause to be filed thereafter any omitted portion of the record as a supplemental transcript. In the absence of such direction by appellant, the transcript shall be prepared as the law now directs".

This statute was amended by Act No. 265 of 1918 p 487, by striking out the words

"after such notice by appeallant to the Clerk" and inserting
"after servioe of a copy of such.notice".

In interpreting the Act of 1910 the Supreme Court said in Quaker Realty Co. vs Posey, 130 La. 941 (943):

"Under the law as it stood prior to the enactment of the statute thus quoted, the dismissal of the appeal would probably have been authorized (quoting 38 A. 34 and anterior decisions). As matters now stand, the remedy is for the Court to cause to be filed the omitted portion of the transcript as a supplemental transcript". This decision was affirmed in Brown vs Staples 138 La. 604 and in Twomey vs Rapalia 142 La. 624.

But appellee contends that these decisions interpret the practice before the Supreme Court and have no application to the Courts of .Appeal. There is no foundation for this contention^ The Aw relates

"to the taking of appeals in civil suits".

In the absence of a restriction to the Supreme Court alone, it must extend to all appeals in all Courts, including the Courts of Appeal.

But even if the Act had specifically mentioned the taking of appeals to the Supreme Court, t&-woul«6iave applied to Courts of Appeal/. Section 27 of Article 7 of the Constitution of 1921 p 45 provides that:

"The rules of practice regulating appeals to and proceedings in the Supreme Court shall apply to appeals and proceedings in the Courts of Appeal, so far as they may be applicable, until otherwise provided". 120 La. 509; 126 La. 168; 119 La. 959.

Nor is there any force in the argument that because' the rgcord in the lower Court is copied to make up the transcéipt for the Supreme Court, while

"all cases on appeal to the Courts of Appeal shall be tried on the original record, pleadings, and evidence", that the Act of 1910 cannot apply to the Courts of Appeal. In appeals to both Courts the record goes up; the only difference is, that in the Supreme Court it goes up in a copy, while in the Court of Appeal it is taken up intSlje original. But in both cases it is in the power of the parties to

"f Ü6 with the Clerk a written list of the portions of the record to constitute the transcript of appeal".

But the Acts of 1910 and 1918 merely amplified the law and jurisprudence which had existed long prior thereto.

C. P. 898: "If, at the time of argument, or before, the appellant perceives that the copy of the record is incomplete, either through mistakes or omissions, or from the Clerk having failed to certify the copy as containing all the testimony produced in the cause, or from any similar irregularities^not arising from any act of the appellant, the Court may grant him a reasonable time to correct such errors or omissions, during which time judgment on the appeal shall be suspended.

And in 1839 the statute of jeofail was passed (Act 52 p 162 (170) Sec. 19) which provided:

"And no appeal to the Supreme Court shall be dismissed on account of any defect, error, or irregularity in the petition or order of appeal, or in the certificate of the Clerk or Judge, or in the citation of appeal or service thereof, or because the appeal was not made returnable at the next tern of the Supreme Court, whenever it shall not appear that such defect, error, or irregularitj is imputable to the appelllant; but in all such cases the Court shall grant a reasonable time to correct such errors or irregularities (in case uney are not waived by the appellee), and may impose upon the appellant such tenas and conditions as, in their discretion, they may deem necessary for the attainment of justice - and may also impose such fines on the officer who nVw.il have caused, such irregularities as they may deem proportioned to the offenses". In 15 La. 500 the Court said: "The Act of Legislature, approved March 20th, 1839 Section 19 makes it the duty of this Court, in a case like this, to refrain from dismissing the appeal, and to grant a reasonable time to have the record perfected".

When the•transcript is deficient through no fault of appellant, he may move to complete it by certiorari. 5 M. 668; 9 M. 185; 3 R. 1; 13 A. 288; 27 A. 444; 38 A. 836; 134 La. 467; 136 La. 531.

Certiorari may issue even after submission of the case. 15 A. 717, 37 A. 295; 39 A. 780; 42 A. 381, 799; 44 A. 82.

A oertiorari will be useless if the documents are filed. 25 A. 335; 29 A. 822; 33 A. 873; 45 A. 733, 935.

The law favors appeals and in doubtful cases the appeal will be maintained. 1 La. Dig. p 523.

"The facility for dismissing appeals that formerly existed and of which parties constantly availed themselve: to the great detriment of substantial justice has been restricted by the wise" (legislation) & o 29 A. 823; 33 A. 875.
"The rankest injustice had been so often done by the dismissal of appeals for all manner of technicalities and informalities, that provision was then made (Act of 1839) saving parties appellants from dismissal for defects or irregularities not imputable to them". 31 A. 595.

II. It is only the party cast by the judgment who cannot siga the appeal bond as surety. In this case, it is true that the defendant was bound to notify his-lessor, of this suit, if he would present his right to claim damages from him. But he did not make Konrad a party to the suit. There was no judgnent I against Konrad nor was he bound by the judguent against, defendant. But the record shows that Konrad was acting as the agent of - other parties claiming to be owners of said property. 32 A. 718.

"The surety in injunction is a competent surety on the appeal bond in the same suit, unless he has been condemned by the judgment appealed from as a party under Act 1831 No. 48". 12 L. 383; 25 A. 36; 36 A. 390.
"He who has no interest in a suit and is a party thereto only as agent for one of the litigants, is a competent surety". 12 A. 175.

The motion to dismiss the appeal is denied.

April 10th, 1922.