author: CHARLES F. CLAIBORNE, JUD'iJE.

text:
    Charles F. Claiborne, Judge.
    OTTO F. BRIEDE, APPELLANT. VS. BYRON C. McCLELLAN.
    No. 7599.
    June 26 1919.
   CHARLES F. CLAIBORNE, JUD'iJE.

This is a suit for rent and for cost of restoration of premises to original condition.

The petition alleges that by act under private signature dated July 29th, 1915' the plaintiff leased to the Ocean Laundry Company, Cunningham Bros.,proprietors, the .two story house Ho. 529 Felicity Street for 24 months, commencing October 1st, 1915 and ending September 30£h, 1917, for the price of $40 a month, as appears by the lease annexed as part thereof; that during the early part of 1917' the said lease was assumed and taken over by the Jackson Laundry Company, B. C. McClelland, proprietor, and the rent notes up to and including the note of September, 1917 were’ paid by said McClelland; and by said assumption he became liable for all the obligations under said lease; that on October 16th, 1917 petitioner received notice from the said McClelland that said lease would be terminated, and therefore the said McClelland is liable for rent for the month of October 1917; that he left the leased premises in bad condition; plaintiff specifically alleges that

lo All the lavatories and toilets were damaged and broken;

2o that all the wiring had been removed;

3o that the defendant had left a hole in the roof of the shed where the smoke stack went through;

4o that he had failed to put back on rollers and to repair doors;

5o that he had left iron bolts in the cement floors used by him to hold the machinery in place;

6o that he had failed to remove dry rooms erected by him;

7o. he had failed to remove cinders, paper, and trash;

petitioner further alleged that the cost of reinstating said premises would amount to $394.13 according to an estimate which he had caused to be made annexed to the petition; petitioner also claimed 20$ a-ttorney’s fees.

The lease contains the following clauses:

‘■The said premises and appurtenances, including the locks, keys "and other fastenings, are delivered in good order, and the lessees obligate themselves to keep the same in like good order during the term of the lease .. The lessees bind themselves to make no alterations to said premises . , and at the end of the lease to return, without further notice, possession of waid premises and appurtenances by actual delivery of the keys to the lessor, in like good order as received, the usual decay and wear and tear only excepted ... in case of suit, the said lessees shall pay as counsel fees an additional sum of 20% on the amount so due and exigible &c . . . Should the lessees be abwent from the City any time during 50 days prior to this expiration of this lease and fail to leave keys with some representative and notify lessor where keys may be obtained to show premises to parties wishing to rent, it shall be at the option of lessor to consider this lease renewed for one year upon same terms and conditions".

The defendant denied any indebtedness to plaintiff; he admitted the lease by plaintiff to the Ocean Laundry Company as above set forth; he denied that the premises had been delivered in good condition and that any damage occurred to them during the period of his possession; he admitted that on ilay 5th, 191? he acquired the contents of the building from the Ocean Laundry Company with the consent of plaintiff herein and that he paid the rent up to September 30th, 1917, but denies that he can be made liable for any damage which may have occurred previous to the transfer to him; that on June 22d, 1917 he notified the plaintiff that he would not renew the lease and that he vacated the premises prior to October 1st, and that therefore he is not liable for the rent for the month, of October; he denies that the premises were left by him in bad condition but avers that they were left in as good a condition as they were received by him in May 1917, and he denies all the a-llegations of danage, * enumerated in plaintiff's petition.

There was judgment for defendant and the plaintiff has appealed.

/_£_ Is the-plaintiff entitled to rent for the month of October 1917?

The lease expired on September 30th, 1917. The lessee had the privilege of renewal for two years. The lease provided:

"The lessees agree to notify the lessor or his agent in writing-on or before the first day of July 1917 preceding the expiration of this lease, whether or not they wish to retain the premises for one or more years".

On June 22d, 1917, the defendant herein addressed the following letter to the plaintiff:

"Mr. Otto r. Briede.
.Dear Sir,
Complying with the terms of the lease of the Cunningham Brothers operating under the name of the Ocean laundry at 529 to 539 felicity and transferred to me now and being operated under the name of the Jackson Laundry, I herewith notify you that I do not care to renew the lease after Sept. 1917.
Thanking you for past courtesies, we are
Respectfully yours,
Jackson Laundry Co.".

The plaintiff received this letter. The plaintiff testifies that about thirty days thereafter he received a telephone from the defendant asking him if he would charge him any rent if he occupied the premises after the lease,.until he could get out-his machinery; to which the plaintiff replied that he ought to charge him twice as much, but that he would let it go at the same price* defendant said allright; that on October 10th, he got a message from the Police, that the premises were open, and that they were being robbed; the next day he rang up the defendant who was out of town; he got him on the third day, and the defendant told him that he had written him a letter in the lat.ter part of September, telling him that he would vacate; plaintiff replied it was funny, as he had received all otftjsr letters but liad not received that letter; then he took two men Uj there and found, the doors down and' the holler room full of ¿tinders; that was shout October 14th or 15th; the defendant hewer brought bach the keys; he did not receive a letter of September 27th, 1917 stating that he could get .the Keys from Ur. UoClellan either at the place or at the saloon at the comer; not did he receive them later; he thought defendant had agreed to continue the lease after September 1917; the defendant got the keys from Cunningham; he does'not know that they-were left at the comer saloon; he did not tell the defendant to leave the key there.

The defendant testifies that he did not make any contract with the plaintiff in reference to the occupancy of the building for the month of October 1917; he did not agree to pay rent if he remained in the premises; he did not occupy the premises during the month of October 1917; he notified the plaintiff in writing that he had removed the contents of the building; he cannot say what day; he sent the notice by mail; he produces a copy of it dated September 27th, 1917; after he bfifiame the transferee of the lease he received -the key of the place from the same man to whom he delivered them in the saloon at the corner of Felicity and Religious; he does not know whether there is any of his property in there now or not, or. any drying rooms; he sold them for 45 and he does not know whether the purchaser took, them out; after the machinery was moved out, he locked up the building and turned the key over to the saloon man as instructed to; he asked the plaintiff if he did not get the machinery out if he would let him have the building for another month rent; the plaintiff told him no that he would have to charge him two months’ rent; the plaintiff did not teil him he could have it at the same rent; he then told him he did not want it; he does not know whether he mailed the letter of the 27th himself, but the stenographer put it in the mail-box; he dictated the letter and signed it and sent it to the plaintiff; he is positive it was mailed because he saw it was • done, but did not see it put in the mail-box.

The letter referred -to reads as follows:

"New Orleans, La., Sept. 27th, 1917.
Mr. Otto Briede,
416 Girod Street, City.
Dear Sir,
Tfe have moved all the machinery out of the
Building at 539 Felicity and you may get the keys-from Mr. Cunningham either on the place or a-t the sallon 'at the corner.
Kindly attend to this,with kindest regards.
Yrs. Resp'y.".

It is -the duty of the lessee, under the law, to surrender the leased premises to the lessor at the termination of the lease. 105 La., 291; 30 Dalloz Rep., 368 § 340; 18 Baudry -Lac § 958.

Upon his failure so to do he is liable not only for rent for the time he occupies the premises Beyond the term of his lease But for damages Besides. 11 A., 477.478; 16 A., 244; 28 A., 892; 37 A., 904.906; 123 La., 798; 18 Baudry-Lac § 958, 968.969; 32 N. Y., 364; 84 Hun 402; 65 N. Y., 562.

In the case of improved immovables this delivery is usually accomplished-By turning over the keys of the Buildings. 18 Baudry-Lac § 920. The absence of any special provision of the law upon this subject, however, v/as supplied By the express terms of the lease under which defendant held. It provided that the lessee Bound himself "at the end of the lease to return, without further notice, possession of said premises and appurtenances By actual delivery-of the keys to the lessor, in like good order as received".

The contention of the defendant that lie delivered the keys to the plaintiff By the-letter of the 27th is! unavailing for two reasons. The first is, that he was not authorized to deliver them to Cunningham; that Cunningham was not the agent of plaintiff and that delivery to Cunningham was not delivery to the lessor;-.the second is, that plaintiff denies that he received the letter of the 27th. The Burden of proof was upon the defendant and in.this he has failed. We must therefore conclude that plaintiff was notified only when he received the message’from the Police on October 12th, 1917 -, and that defendant held possession until then.

Article 2689 (2759) of the Civil Code reads:

"If the tenant either of a house or of a room should continue in possession for a weeh after his lease has expired, without any opposition being made thereto by the lessor, the lease shall be presumed to have been continued (by the month) and he cannot be compelled to deliver up the house or room without having received the legal notice or warning directed by Article 2686".

Article 2686 (2656) says:

"The parties must abide by the agreement as fixed by 'the time of the lease. If no time for its duration has been agreed on, the party desiring to put an end to i't must give notice in writing to the other, at least fifteen days before the expiration of the month, which has begun to run".

In the case of Bowles vs. Lyon, 6 Rob. 262, the Court said that a lessee for a fixed period who continues in possession for a week after the expiration of the lease can only be expelled after a notice of fifteen days and could "quit the premises only after giving a similar notice to the landlord". Affirmed in Geheebe vs. Stanby, 1 A., 17, and in Dolese vs. Barberot, 9 A., 352, and in Marmiche vs. Roumien, 11 A., 477.

In the case of Waples vs. City, 28 A., 688, the defendant vacated and abandoned the leased premises in August 1873, but failed so notify the plaintiff lessor. The City was held liable for rent up to April 1874 when plaintiff became aware that defendant had vacated.

We are therefore of the opinion that the defendant owes the rent for the month of October 1917 or $40 - with 20$ p.ttor-neys fees.

Can the plaintiff recover the several other items chimed by him?

• The obligation is imposed upon the lessee bylaw not only to return the leased property at the expiration of the lease, but "to enjoy the thing leased as a good administrator". C. C., 2710 (2680).

C. C., 2719 (2689):

"If an inventory has been ¡nade of the premises in mhioh the situation, at the time of the lease, has teen stated, it shall he the duty of the lessoe to deliver hack everything in the same state in which it was when taken possession of hy him¡ making, however, the necessary allowance for wear and tear and for unavoidable accidentes C. C., 2720 (2690):
"If no inventory has been made, the lessee is presumed to have received the thing in good order, and he must return it in the same state, with the exceptions contained in the) preceding article". 30 Dalloz, 368 § 340; 18 Baudry § 923.

In affirmance of the law the lease reads:

"The said premises and appurtenances . . . are delivered in good order, and the lessees obligate themselves to keep the same in like good order during the term of the lease".

The French Commentators extend this obligation to the duty of washing the panes of glass. 1 Baudry-Lac on C. N., 1731; It was considered the proper thing to do, among the old inhabitants of 'Tew Orleans, to scrub the floors before vacating the leased premises.

In Payne vs. James, 42 A., 230, the Court said:

"Under a contract of lease which binds the leasee .to keep the property in good repairs, and to surrender it at the expiration of the lease-in the same good order in which he received it at the beginning of the lease, he has the option to make the required or necessary repairs at 'the end of the lease, and his lessor has no cause of action for damages for his failure to make repairs until the expiration of the lease". 18 Baudry-Lac 929.

T7e entertain no doubt that the plaintiff has a cause of action for each and every item, of his petition. But all have not been proved with sufficient certainty.

lo The evidence satisfies us that it will cost $72 to reinstate the lavatories and toilets. A witness testifies that he put in the plumbing ' at a cost of $300'.

2o The item of "Electric Wireing §75" is not proven. It does not appear whatj wireing existed at the time of the lease, nor whattit had cost. It is only the deficit for which the lessee is liable.

3o The estimate for "Repairing composition roof $54.30", cannot he wholly charged to the defendant. The evidence is that the roof was old and in bad condition, and vre are not satisfied that it was danaged by defendant. All plaintiff can claim is the cost of repairing the opening caused by the insertion and removal of the smoke stack, about four feet square. Of this there is no proof.

4o The record is barren of any proof of the cost of repairing the dcor3.

5o The estimate of $60 for repairs of schillinger is too broad. All that plaintiff can recover is the cost of removing the iron bolts and repairing the pavement there.

6o There is absolutely no evidence as to the cost of removing the dry rooms.

7o The charge os §7.50 for removing the cinders, paper, and trash, and also the items for glazing §15, and repairing drainpipes §15 are established, - but the item for miscellaneous carpenter work §59.50 is not proven.

It is contended, however, that the defendant, as transferee of the lease, cannot be charged with those items, unless it is-shown that the damage was done during the time that he was a lessee. It was admitted that the defendant became the transferee of the lease from Cunningham on Hay 8th, 1917. As transferee of the lease he acquired all the rights and incurred all the liabilities of Cunningham under the lease. In D'Aquin vs. Armant, 14 A, 219, the Court said: "the transferee (of the lease) is put in the place and stead of the transferor". 39 A., 743; 40 A., 264 (269).

"The transfer of a lease puts the transferee exactly in the place and stead of the transferor; it transmitfup-on his head the rights and obligations resulting from the original lease, so that it only continues, under the same conditions, the possession of the leíseü". 30 Dalloz Rep. Leg. p. 392 § 422 - 429 . . the transferee is held towards the lessor to all the obligations which the lea.se imposed upon the lessee". 4 Aubry & Rau p. 493; 3 Duvergier p. 368 § 389.

But this precise point was decided in Blache vs. Aleix, 15 A., 50. Blache had sold to Aleix his lease and certain articles upon the leased premises for the price of $350. Blache sued Aleix for the price.

The Court said:

"The answer admits the amount of the contract as claims ed; but pleads that plaintiff is liable to defendant for an amount paid by him (defendant) for replacing the premises, at the end of the lease, in the same situation in which they had been at its commencement, by replacing front doors which had been taken out by plaintiff for the purpose of inserting show cases of French plate glass, which constituted a portion of the articles sold by plaintiff to defendant. '-7e agree with the judge of the District Court, that the defendant has no claim upon plaintiff, for the restitution of the premises to their original condition, at the termination of the lease of which the unexpired term had been sold. The sale was made of the premises in the situation in which they existed at the time of the sale, and the purchaser of the lease took upon himself the obligations of the lessee at the same time he acquired his rights. One of these obligations was to restore the premises', at the expiration of the lease, in the same situation in which they were at its commencement, necessary wear and’tear excepted. C.C.,2697. There is no allegation that any deception was practiced by plaintiff upon defendant; and the evidence convinces us that defendant was fully apprised of the facts in relation to the original condition of the premises, when he purchased the lease and fixtures of the store".

It is therefore ordered, adjudged, and decreed that the judgment herein be reversed and annulledjand it is now ordered that there be judgment in favor of the.plaintiff, Otto F. Briede, and against the defendant,Byron C. McClellan, for the following amount, viz$

lo Forty dollars with five per cent per annum interest from Hovemher 19th, 1917 till paid and twenty per cent attorney's. fees;

2o One Hundred and nine 50/100 dollars with five per cent per annum interest frdm Hovemher 19th, 1917 till paid and all costs of suit;

And it is further ordered that all the other demands of petitioner he dismissed as in case of non-suit.

June 26, 1919.


source: Caselaw Access Project

author: St. Paul jug*.

license: Public Domain

text:
    NO. 7600
    ANTHONY CENTANHI VS JOHN R. RHODES.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPISIOI,

St. Paul jug*.

Plaintiff foreclosed upon defondant'a property under a Mortgage nade and recorded June 17th, 1918. Intervenora olalm a preference, out of the prooeede hy virtue of an alleged meohanloa lien superior in rank hut of later origin.

question is whether the privilege was recorded in tine to aoquire priority over the preexisting mortgage under C. C. 3274 reading as follows;

"xxx {A privilege) shall confer no preference on the creditor who holds it over creditors who have acquired a mortgage unless the aot or other evidenoe of indebtedness is recorded within seven days from the date of the aot or obligation of Indebtedness, ato.

The evidenoe shows that on Sec 8, 1914 the intervenora submitted to defendant a written offer to do certain plumbing work on the premises. But as this offer (when accepted) was not recorded until more than seven days after the date above given, to wit, not until January 22, 1915, intervenors offered to. prove that the offerees not accepted by defendant until January 19, or within^days of the date on whioh it was recorded. To which offer of proof plaintiff objected on the ground that it tended to vary a written instrument.

She objection was properly overruled. Even between the parties thereto it is generally permissible to show by parol the true date of a written Instrument regardless of any date it may or may not bear. Belot vs Donovan, 1 Rob 257; Kenner vs Creditors, 1 La 120; 4 An 262, 500; 14 An 793; 112 La 740; See also 17 Cyc 689. But the fact is that the rule relatdwe to parol evidence not being admissible to vary a written instrument applies only between the parties thereto and not in a controversy with a third person. Covington Lumber Co vs Stef, 12 Ct of App 237; and 19 Cyc 749.

The evidence being admissible, it was shown by the affirmative testimony of four witnesses that the defendant affixed his own signature.to the.offer, in token of his acceptance thereof, on January 19th as aforesaif.

How it ia true that the work was begun a few Saya p(taller under verbal inatruotiona from defendant to go ahead; but this la explained by defendant and one other witness as having been nsoessary because of the order of the Board of Health, and the wowk not then progressing under the oontraot; for the defendant had hoped to eliminate some part of it, and had finally signed the oontraot for a lump sum only whne he found that no part of the work oould be dispensed with. Otherwise the intervonor's claim would have been on quantum meruit and might have been reoorded only after the work had bean completed and the amount thereof become known. Greater N. O. Homestead vs Hoffman, No. 7277 of our docket; Brashear vs Copperage Co, 50 An 587.

Under the oiroumstanoe# the recordation of the claim appears to us to have been in time.

Judgment Affirmed.


author: Meat Plnkolsplel. Judge.

text:
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL
    SUCCESSION of KATHERINE ROSCHA, Widow by first marriage of Henry Thompson, and by second marriage of Martin Polke.
    No. 7604.
   0 I I I I 0 I

Meat Plnkolsplel. Judge.

KAIHERIHE BOSCHA¿ widow by first marriago of Honry Thompson and widow by sooond marriage of Martin Rolle», dio a in this city, bar domicile, on Deoember 83, 1917, loarlng a last will and toot*» moni in the nunoupatlre form by pabilo aat boforo Bollx Joooah Bair. Hotary, of data Horember 9, 1915. y) The will in quo at ion roads as follows:

" "My name is Katharine Basoha. I am tho widow by first marriage of Honry Thompson and the widow by aoeond marriage of Harbin folleo.
"dll the proparty that I now hare was bought with money acquired during the oommunlty between myself and Hart in felfee.
"I loare and bequeath to my son Honry Thompson, the sum of Six hundred Sellars.
"The balanoe of my property 1 loare and bequeath to my two ohildron William felfee and Junio felfee wife ef Henry Hoyar, oonstitutlng them my unlrersal legatees.
"I appoint Hr. See. Oasanora, exeoutor of this my last will and testament with full seisin."

In the petition filed before the Clrll Bistriot Court, amongst other allegations of tho petition for probate, was the following: "That deceased left as her sole and only legal heirs her three children, Henry Thompson, William felfee and Annie felfee, wife of Henry Heyer, all of this elty and of full age." She left In tho will B8 her testamentary oxooutor Coorgo Oasanora, Who, in due course, qualified, and subsequently prayed for an lnrentory of the suooesslon, Which lnrentory, filed, showed that the only property that deoeased left- was a certain lot of ground in this elty, appraised for the sum of $8500.00. Subsequently, through orders of the court, this property was sold and produeed the sum of $8515.00, and there was added to this sash in Hlnth Street Branoh of Commereial Trust & Savings Bank $1.00, making a total of $8316.00 as the entire gross wslme of the deeedent's property.

Subsequently an aeoount «as filad toy tha executor, oharging himself with tha fond in question, and aftar the payment of debts, funeral charges, notarial and Ian faaa and other necessary expanses, and aftar paying legacy to Henry J. H. Thompson, son of tha daeaasad, of #600.00 provided for in tha last Kill and testament, or a total of #1036.28, there was left a net toalanoe of #1379.65, which was to toe distributed to the residuary legatees SB follows: Annie Pelke, wife of Henry Meyer, daughter of the deceased, #639.82-1/2, and a like amount to William Pelke, the son of the deoeased.

This account was opposed toy Henry J. H. Thompson, olalming, amongst other allegations of his opposition, that the ezeeutor, George Casanova, never qualified within ten days, under his appointment toy will, therefore his appointment was a nullity; that he had no right as ezeeutor to file any account or represent this estate as ezeoutor in any manner, and his acts and orders of the oourt thereon were null and void. The opposition further contended that in oaae the first opposition was overruled, then, in the alternative only, opponent opposes the distribution under the said will, as the same is null and void, and the heirs other than opponent are not entitled to any part of this estate, for the reasons stated toy opponent in the suit filed toy him on the _ day of January, 1918, and made part hereof:

1. That the said alleged last will and testament, it is therein stated that all of the property of the deoedent was purchased with the funds belonging to the community of aequets and gains existing between the deoedent and Martin Pelke and her husband pre-deoeased.
2. That the said last will and testament is null and void and of no effect, in that it was not dictated toy the deoedent nor read to her in the presence and hearing of the witnesses, nor were the other forms of law followed out in the making of said will and testament; that de-eeased was old and infirm, almost totally deaf, totally inoapahle of testamentary disposition; that she was altogether under the lnfluenoe of Mrs. Annie Pelke, wife of Henry Meyer, who undoubtedly and illegally exercised her oontrol oyer the said decedent at the time of the making of the said last will and testament; that during the making of said will William Pelke, one of the sons of the decedent, came into the house and in front of the room where decedent was making said last will created a disturbance by insisting that he should benefit to the same extent as his sister, Mrs. Annie Meyer, aforesaid, and that this was done and was suoh an interruption as is prohibited by law. In oonsequenoe of the foregoing the said last will and testament is null and void. Opponent also alleges, also in the alternative, that should the said last will and testament be held to be good and valid, in that event, that the property left by the decedent constituted her own separate estate and was no part of any community whloh heretofore existed between the said deee-dent and her late husband, Martin Pelke; that opponent should inherit as one of the forced heirs of the said decedent, in accordance with the foregoing; that of the . said other legal heirs, William Pelke and the said Annie Meyer, they were without right or authority to receive any portion of the estate as such heirs as legatees, because of the faot that they have not disclosed in the Inventory herein, but oonoealed, certain money whloh the said Mrs. Annie Pelke, wife of Henry Meyer, had in her possession at the time of the death of the deoedent, at the tifeing of the inventory, and more particularly the sum of $470.00 withdrawn from the bank by the decedent, whloh was in the house at the time of the death of said deeedent, sad the whereabouts of shirt aha was familiar with, and eartain household furniture and Jewelry belonging to said daaadant, valuad at about $860.00, and othar proparty not parsonally known to patitionar in suffioiant datail, but which is rasarvad by patitionar by supplamantal patition to be filad harain. Wherafora they pray that the parties hereunto ba oltad to appear and answer this patition, and that there be judgment in favor of patitionar and against said defendants decreeing the last will and testament to ba null, void and of no effaet; likewise the probata, registry and ezeoution thereof; and that, in the alternative, should the said last will and testament ba held to ba valid, in that event the property left by daeedant to be declared to ba frae from any claims of the second oommunlty as is sat out in the said last will and testament, and decreed to belong to the separata estate of the decedent, and the said Mrs. Annie Pelke, wife of Henry lleyer, and William Pelka, be debarred from inheriting either as foraed heirs or as legatees, and that petitioner ba recognized as the sola legal hair of daaadant and ba put in possession of her entire estate.

An azaaption was filed to opponent's olalms, on the ground that same showed no causa of action. Subsequently, and without trial of this azception * Which seems not to have been pressed - opponent disclaimed relief from all feas, law charges and other items filed by the ezeoutor, leaving the sole question at issue whether or not undue influence had been used and whether or not the faots oontended for by the opponent were true.

She authorities sited by counsel for opponent, ffhempagn, - Article 1041 R.C.C., together with the Sueeession of Gusman, found in the 36th An., 407-6, - have no application whatever to the facts as presented in this oase.

The oast finally asm» to trial, and, amongst other things, tht testimony of all the witnesses in this ease proved beyond the peradventure of a donbt 'the verity of the aooount’, as filed by the executor, There was no ooneealment of any hind or oharae-ter of either money, furniture or other property; but, on the contrary, the aooount of the executor presents absolutely, in our opinion, a truthful, honest, honorable statement of the true situ* ation in this suooesslon.

It was oontended first by the opponent that, admitting, for the sake of argument, the facts to be as stated, nevertheless, that the two helra, lira. Meyer and William Pelke, had not reoelved anything beyond their virile share as foroed heirs, just as opponent did, in this ease. The law on this subjeot is as follows:

"The cardinal objest of the oollatlo bonorum is equality in the partition, in order to prevent jealousy and bickering among heirs about property. The law would fall of its objeot if heirs were made to sollate unless upon ample proof that oollation is due."
La. Digest, Vol 2. (Citing King v. King, 107 La. Reports, 437.

Article 1231, R.C.O., under the head of "Express Exclusion of Collation," provides:

"But things given or bequeathed to children or other descendants by their ascendants, shall not be collated, if the dohor has formally expressed his will that what he thus gave was an advantage or extra part, unless the value of the objeot given exoeed the disposable portion, in whloh ease the exoess 1b subjeot to collation." (Referring to 16 An., 294).

The case of Miller v. Miller, 105 La. Reports, 257, is a full expos! of the subjeot matter of oollation as it is presented in this reoord.

Te have carefully scrutinized and olosely examined the subjeot matter Involved in this controversy, without aid la the way of brief or argument for the oppoaant in this oase, and we are unhesitatingly forced to the oonoluslon that opponent, Henry Thompson, has not in any manner presented any issue or any evldense to sustain hi» «auso; nor is thoro any law bo to 4o.

June . 1919.

JTOSUENT AFFIRMED.

H»w Orloans,


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    Mrs. MARY EGAN VS. Mrs. FLORENCE WILLARD. Appellant.
    No. 7611.
    June 19th, 1919.
   CHARLES F. CLAIBORNE, JUDGE.

This is a suit for rent. Plaintiff alleged that the defendant leased the premises 133 S. Gayoso at the rate of $35 'per month; that a balance of $13 is due for the month ending July 11th, 1917 and #35 for each of the three months ending on the 11th of August, September, and October, making a total of $118}

that on October 11th, 1917 petitioner again leased said premises to the defendant for the same price for one year for which she gave rent notSs, payable monthly; that there is now due on said notes a balance of $20 for the note due March 11th, 1918, and the whole of the three notes for the months ending on the 11th day of each of April, May, and June 1918 and $11.66 on the note falling due on July 11th, 1918, making a total of $136.66; as appeariby the notes annexed;

that the two sums together make $254.66 which the defendant fails to pay notwithstanding demand.

The defendant denied owing the plaintiff $254.66, but admitted owing her $41.50; she averred that she had the property ' screened and certain plumbing work done for which she is entitled to credit; that before making the lease on October 11th, 1917, she gave plaintiff a draft for $51 on one George R. Davis in full payment of rent due; that she tendered $41.50 to plaintiff who refused to accept it.

There was judgment for plaintiff for $80.75 and she has appealed.

The plaintiff as a witness swears the amount of $254.66 is due to her; she received from defendant a draft on George R. Davis in St. Louis, which was not paid; she agreed to pay for the material for the plumbing but not the labor; defendant was to pay the labor; she agreed to pay for the screening; the plumbing bill was around $38; there was an additional bill of $16.

Plaintiff at this time offers to allow a credit of $41.25 for screening and nlimibinar if nroof is nroduned of the payment of the bills. ¿53-*' &

Defendant was not examined as a witness, nor was there any proof of the' payment of any hills by the defendant.

The judgment of the District Court is not explained by any reasons and the defendant does not appear to us to have extablished her defense. The plaintiff swears to the correctness of the amount claimed by her* there is no testimony to contradict her; we think she is entitled to a judgment.

It is therefore ordered that the judgment ncreased from Eighty dollars to Two Hundred and £> <S ¡ffaur 66AIU0 dollars with legal interest from August 28th, 1918, till paid .and all costa of suit, and with this amendment that it be affirmed.

June 19th, 1919.


author: CHARLES CLAIBORNE, JUDGE.

text:
    Mrs. KATE HORN VS. MARYLAND CASUALTY CO.
    No. 7615.
   On application for rehearing.

CHARLES CLAIBORNE, JUDGE.

1 think a majority should he granted. According to the opinion of the majority, a widow who was not "living with her deceased husband at the time of injury and death", would never be entitled to ary compensation, for the following reason. One of the two following conditions must inevitably prevail at the time of the injury and death: either the widow was earning her own livings by working for it; or she was supported by some one; in either case, then^under the majority opinion, she was not "actually dependent upon her husband for support". This cannot be a correct interpretation because it shuts out the widow^who was ¿rot living with her husband. The Act provides for two contingencies when the-wife is entitled to compensation, viz: lo when "she is living with her husband; and 2o when she is "actually dependent" upon him. A construction which would restrict the right of the wife to 'the first contingency when she is living with her husband, and which would practically deny her right under all other circumstanees^is, in my mind, at war with the letter and spirit of the act.

Dissenting Opinion.

The proposition which has successfully controlled the opinion of the judge of the District Court and of the other judges of this Court is, that the widow in this case is not "actually dependent" upon her husband for supoort, because she has been thrown upon her own resources fop six years since her husband abandoned her, and has managed to work and earn her livelihood without his assistance, on a salary of $8 a week earned in the Lane Cotton Kills.

I cannot agree to that proposition. Every case must be governed by the facts and the law peculiar to it. In my opinion, a widow is "actually dependent" upon her husband for support at the time of his death, when sher has no^evenues of her own securing to.her the necessaries of life, independent of the fact that she is working and living off of her wages. It might perhaps be contended that a widow who is earning a large salary is independent of her husband; but certainly not of one who earns $8 a week. The husband owes his wife support, and under the law she is of right actually dependent upon him for it. The husband has no right to require of his wife to go out and work and earn her own living, though she may be physically able to do so; when he does so, he does her an injustice; all he may require of her is to perform such labor as is necessary to accomplish her household or domestic duties. The Saployers' Liability Act was intended to take the place of the natural and legal provider at his death; just as the husband could not have defended an action from his wife for alimony, on the ground that she was able to earn and was actually earning a living; just so in my mind,the employer, cannot make the illegal act of the husband in refusing to assist his wife and forcing her to support herself, a means of defense.

IJhat is true of the widow is not true of the widower; because the wife owes no duty of support to her husband except in cases when he is unable to support himself. The widower is in the sane position as the child to his parents, and the parents to their major children. The duty of support exists with them only in case of inability of the parent or major child to support himself; it is only in those oases that they a,re "actually dependents". But the wife is always an "actual dependent" because her husband owes her support, whether or not she can nake one for herself; and she has a right to depend upon it. 43 A., 347.

That such is the meaning of the law appears to me to J&r shine out from the second part of section

The section roads:

"Ho compensation shall be payable under this schedule to a widow unless she be living with her deceased husband at the time of injury and death, or be then actually dependent upon him for support. Ho compensation shall be payable under this schedule to a widower unless he be living with his deceased wife at the tine of injury and death or be at such time incapable of self-supoort and actually dependent upon her for support".

Thus the legislator has said that the husband was "actually dopendent" upon his wife for support only when he was incapable of self-support; but no such exception was made in the case of the widow.

In the third paragraph thereafter (0) p. 56, we read:

"Should any dependent of a. deceased employee die, or should the widow or widower remerry, or should the widower become capable of self-support, or should any dependent not physically or mentally incapacitated from earning a living pass beyond the age of IS years, the payments of the portion of the compensation theretofore due such dependent or widow or widower shall cease".

Ho mention is ns.de in the case of the widow "becoming capable of self support", because it never was in the tion of the legislator that her rights to the coBroensationdepend-upon her inability to work or to earn a livelihood: or that she would lose the c ation^sgoon as sh^ oould^^^ support herself. PÁ^Sw- í^oNf-flKi^gác able-trc 3<^TO».ia-aXOffiLp9ayatio»i if ¿htw ability-eeasod i« the future^ - . *1 therefore respectfully dissent. ^ ^ '


author: Max Dlnkelsplel. Judge.

text:
    STATE OF LOUISIANA PARISH OF ORLEANS COURT OF APPEAL
    MRS. KATIE HORN versus MARYLAND CASUALTY COMPANY
    No. 7615.

   opiiioi

Max Dlnkelsplel. Judge.

This suit is filed under the Workmen's Compensation Act of this state, and alleges that plaintiff is the widow of Joseph Horn, a resident of this city, who, at the time of his death, was married to petitioner and petitioner was dependent upon him for her support and the support of her minor child; that at the date of his death and prior thereto the deceased husband was in the employ of George Clover, a general contractor doing business in the City of Hew Orleans; that he was employed by said contractor as a piledriver at the plant of the American Can Company; that on or about the 6th day of September, 1918, in due course of his employment, and when performing services in the regular course of his employer's business, as a piledriver on a pile driver at the plant of the. American Can Company, a pile-cap or steel plate used for capping piles fell from a hiight of about sixty feet, striking deceased, fracturing his scull, and as a result of said injury and other injuries due to said accident her said husband died three days later in the Charity Hospital of this city; that at the time of his death her husband was earning $6.00 per day, equivalent to $36.00 per week; that the Maryland Casualty Company, a corporation doing business as an insurer in this state, with offices in this city, did, by a contract of insurance entered into by and between itself and George Glover, agree to assume all liability arising out of injuries or damages resulting to any of the employees of the said George Glover, or as the result of damages arising out of and due to the death of any of said Glover’s employees during the regular course of their employment, as set forth and specified in what is known as the Employers' liability Act, being Act 20 of 1914, and amendments thereto, by which policy said insurer binds itself and agrees to pay promptly to the person or persons entitled thereto all installments of compensation which may become due to them as provided in Act 20 of 1914 of the State of Louisiana, and amendments thereto, and the same is a direct obligation on the part of said insurer to your petitioner for the compensation due her for the injuries and loss inflicted upon her as hereinabove detailed, under said act and the amendments, and so plaintiff has a right of action against said insurer to enforce the'payment to her of the comepnsation past due and such compensation as shall become due to her from week to week, as provided by the act and as fixed by Act 243 of 1916 and Act 08 of 1918; that under the circumstances said insurance company and George Glover are Indebted to her under said acts aforesaid for compensation for the death of her said husband in the sum of $106.80, as weekly compensation of $5.34 due her for the twenty weeks which have expired from September 6, 1918, to January 24, 1919, with legal interest thereon from judicial demand, and in the further sum of $1498,20, payable in weekly installments of $5.04, said pyaments to be made from week to week for two hundred and eighty weeks from January 24, 1919; that under the provisions of Section 8 of Act 38 of the General Assembly of the State of Louisiana of the year 1918, under Paragraph marked B, the following provision is made: "If widow or widower and ont'ehild, then to such widow or widower and child, for their joint benefit, 40 per centum of wages." Under Paragraph marked D: "If one child alone fltt^uo widow or widower, then to such child 25 per centum of wages." Ihat the insurance company, defendants herein, have recognized the rights of your petitioner’s minor child, Estelle, and have paid 20 weeks compensation at $8.91 per week, and have agreed to pay, as the payments mature, to said minor the sum of $8.91 per week for 280 weeks. Plaintiff further represents that she is poor and without means, and unable to give costs as they accrue, or to give bond, and annexes her oath.

Finally, and in conclusion, she prays to be permitted and authorized to prosecute this suit without the payment of costs, ana that sala Maryland. Casualty Company he cited hereto, served with a copy of this petition within four aays from filing thereof, and ordered to file its answer within seven days from service thereof. Further prays that the said Maryland Casualty Company and George Clover he duly cited hereto, served with-copies of this petition within four dayB from the filing thereof, and ordered to file their answer thereto seven days after the service thereof, and that after all legal delays defendants he condemned in solido to pay to your petitioner the sum of §106.80 as weekly compensation past due her from the 6th day of September, 1918, to the 24th day of January, 1919, with legal interest thereon from date of Judicial demand, and the further sum of §1498.20 payable in weekly installments of §5.34 from week to week from January 24, 1919, for 280 weeks, in satisfaction and as provided by Act 20 of 1914 and amendments thereto, and for all general and equitable relief.

The answer .of the Maryland Basulaty Company substantially is that they had no information sufficient to justify them to aoknowl edge the legal status of plaintiff, and calls for strict proof. Further answering, they deny that plaintiff was dependent upon her husband, Joseph Horn, for support. They deny, further, that they are Indebted in any sum whatsoever to the plaintiff, but, on the contrary, that plaintiff well knew that under the Act 38 of 1918, amending Act 20 of 1914 and Act 243 of 1916, and particularly Section 8, Paragraph Jt, it is provided: "Ho compensation shall be payable under this schedule to a widow unless she be living with her deceased husband at the time of ifc* injury and death, or be then actually dependent/i?n him for support;" and they aver further, on information and belief, that the said plaintiff had not been living with her husband for six or seven years prior to the time of injury and death, and. that she had been earning her own living for four or five years antedating said injury and death, by working at the lane Cotton Kills and other places. Chey admit that they haws recognized the rights of decedent's minor child and have paid compensation to said child under Act 38 of 1918, but have declined to pay compensation to the petitioner^ because no compensation is due her under the facts and circumstances of this case, which will be shown on the trial hereof.

Wherefore .they pray that plaintiff’s suit be dismissed, at her cost.

It is satisfactorily.proven, and not denied, that plaintiff was the legal wife of the deceased, and that she was earning a livelihood for self and child for quite a time, when she was compelled to place the child in an orphan asylum, but, so far as she was concerned, she worked at the Kaginniss Cotton Kills, earning, from the time of separation, some six years prior to the filing of this suit, from $8.00 to $11.00 weekly, and was so engaged in working and earning compensation at the time of her husband's death.

Section E of the Workmen's Compensation Act, being Act Ho. 20 of 1914, provides:

"Eor injury causing death within one year after the accident, there shall be paid to the legal dependents of the employee wholly dependent upon his earnings for support at the time of the injury, a weekly sum as hereinafter provided Qxr not to exceed one-half of the average weekly wages of the employee as herein defined, but not more than $10.00 nor less than $3.00 a week, for a period of 300 weeks.
"If the employee leaves legal dependents only partly dependent upon his eranings for support at the time of the injury, the weekly compensation to be paid as aforesaid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partialSy dependents in the year prtot .to his death.beárs to the annual earnings of the deceased at the time of his injury.
"When weekly myments have been paid to an employee before his aeathfubmpensation to dependents shall begin on the date of the last of such payments, but shall not continue for more than 300 weeks from the date of the injury."

The amendatory act, being Act 243 of the acts of the State of louisiana of 1916, Section 12 thereof, provides:

"Ho compensation shall he payable under this section to a widow unless she is living with her deceased husband at the time of his death, or was then actually dependent upon him for support."

Again, Section 1 of Act Ho. 38 of the Exti-a Session of the General Assembly of 1918, reads:

"3o compensation shall be payable under this schedule to a widow unless she be living with her deceased husband at the time of injury and death, or be then actually dependent upon him for support."

yru".

And at page 56 of the same act, .paragraph^**

"In all cases provided for in this schedule the relation of dependency must exist at the time of injury and at the time of death."

notwithstanding the legislature of our state was cognizant of Article 120 of the Civil Code, reading:

"-The wife is bound to live with her husband and to follow him wherever he chooses to reside; the husband is obliged to receive her and to furnish her with whatever is required for the convenience of life, in proportion to his means and condition.”

There have been no adjudications on this particular question in the annals of the decisions of our Supreme Court, and we are called upon for the first time to decide whether, notwithstanding the Civil Code provisions heretofore referred to, the legislature, tinder its power, have or have not .the right to make the exception which it has made in the several acts of the legislature of 1914, 1916 and 1918 referred to.

In the matter of the Succession of Kunemann, to be found in the Lousiana Annual Reports, Volume 115, at pages 606 et seq., where the question was as to the marital fourth, the Supreme Court (p.610) says:

"It has been held that a widow, to succeed in her claim for the marital fourth, must be in necessitous circumstances at the time of the death of her husband." (Quoting Succession of Robertson, 28 La., 832.

And in this same connection the court, at page 514, goes on to say:

May 1919.

"We cannot, however, overlook the fact that the source of the right to the marital fourth is derived from the law itself, and that the will of the law-maker as to the terms or conditions under which it should he exercised is to he looked for and ascertained hy the c'ourts and not the will of the spouses themselves. She courts are bound to confine the exercise of the right to the class of eases proper for the execution of the purpose which the lawmaker' had in view."

We have been referred hy the able counsel for plaintiff in this case to numbers of authorities quoted from the courts of Eassachusetts, the English courts, and other authorities equally as good and as well considered, but vjhether the statutes of the different states and those of England are as -ours Tie have not examined into carefully, but from quotations in counsel's brief we note marked differences, and we aro bound by the statutes of our own state and must follow them, as we do the decisions of our Supreme Court.

5he question of dependency, or dependence, is defined in the Century Dictionary as follows: "Saborcinaie; subject to, under the control of, or needing aid from some extraneous source; as, the dependent condition of childhood; all men are largely dependent upon one another. In law, conditioned on something else. One who depends on or looks to another ior support or favor." And in Worcester's Dictionary, on the same subject, the author goes on to define the word "dependent" thus: "The state of being dependent; subordinate or subject to with or on the class of cases proper for the execution of the purposes which the law-maker hau in view."

We have carefully examined and considered the briefs, the testimony and the law, and we have come to the conclusion that thi judgment of the court a quo is correct; and it is therefore affirmed.

Hew Orleans,


author: Bv Dlnkelsplel. J ■>

text:
    NO. 7619
    COURT OF APPEAL PARISH OF ORLEANS.
    ASTEC LAND COMPANY LIMITED versus JOHN F. DUPUY.
   Bv Dlnkelsplel. J ■>

SYLLABUS.

Aot No. 107 of the year 1898, whioh is an aot to amend and re-enaot Artlole 3519 of the Reglsed Civil Code of 1870.

Article 3519. "If the plaintiff, having made his demand, abandons or discontinues it, the interruption, shall he considered as having never happened. When the plaintiff having made his demand at any time.before obtaining final

Judgment allowes five years to elapse without having taken any steps to. the proseoutlon thereof, he shall be considered as having abandoned same."

In the case of the City of New Orleans vs the New Orleans Jockey Club, 129 La. P. 64, at page 65, the syllabus reads:

"Under aot 107 of 1898, a suit, is oonsldered abandoned when, at any time before obtaining final Judgment, the plaintiff allows five years to elapse without taking any steps towards its proseoutlon, and when suoh suit pending is in this Court on appeal-may be dismissed."

At pages 73 and 74, same oase, on motion to dismiss, the Court goes on to sayi

"In July 1304 the City of flew Orleans, Instituted the above entitled suit in the Civil Distriot Court, praying for the expropriation .of said property, and obtained an in~ junction part} and thereafter, there was a judgment for defendant maintaining an exception of no oause of action, and dismissing the suit* Plaintiff appealed.

The transorlpt was filed In this Court on aovemher 9, 1904.

On December S, 1904 there was judgment overrulling a motion filed hy the defendant to dismiss the appeal and on Haroh 31, 1905 the oase was oalled and continued indefinitely; slnohe whloh time nothing further has been done. Defendant now moves that the appeal be dismissed on the ground that under aot 107 of 1898, the case is considered as having been legal abandoned. The/representatives of the defendant have appealed and give this Court to know and be Informed that they do not consent, but on the oontrary objeot to, and protest against the dismissal of the appeal herein, on the ground alleged.

The statute referred to in the motion amends and re-enacts 0. C. 3519, so as to make it reads Art. 3519. If the plaintiff in this case, after having made his demand abandons or discontinues it, the interruption shall be considered as never having happened. When the plaintiff having made his demand, shall, at any time before obtaining final judgment, allow five years to elapse without taking any steps towards the preseoution of his suit, he shall be considered as having abandoned same and at the order of x¡ut representative of the defendant, suit oan be dismissed.

In the case of Lockhart vs. Lockhart, to be found in the 113 La. P. 872, the syllabus reads:

"Under Act 107, P. 155, of 1898, amending and reenacting article 3519, Civil Code 1870, a suit is considered abandoned when, at any time before obtaining final j udgment plaintiff allowes five years to elapse without taking any steps in its proseoution, and on instructions from defendant oan te strloken from the docket or dismissed,

Also see same oase at page 874.

In the 11 Court of Appeal page 288, State ex rel Yazoo & Mississippi Valley Railroad vs. Edrington, Judge, Court holds the same dootrine.

And In the oase of Teutonia L. &. B..Company vs Connell}:, the Court reiterates what had been heretofore decided in the like oases.

In the 130 La. page 791, Howcott vs/ Petit, the same doctrine was reiterated by the Court.

In the case of Barton vs. Burbank, the syllabus reads:

*fflf aot 107 of 1898, which provides that a plaintiff is to be considered to have abandoned suit when he allowes five years to elapse without taking any steps in its prose-oution could properly be applied in a oase where a seizure under executory prooess is stayed by injunction and the judg* delays his deoision for five years after the submission of the matter, such application would result in a judgment to the effeot that plaintiff in injunction had abandoned his suit, and hot plaintiff in seizure, the execution of whose judgment was enjoined, but in suoh oase the statute mentioned is inapplicable to either litigant, slnoe, having submitted their oase to the judge, they should not' be held responsible for his delay in the discharge of his duty} the idea of the statute being to hold a plaintiff responsible for dalay, attributable to his nonaotion in and failure to prosecute his suit up to the point at which the oourt is placed in a position to render judgment.¡[Authorities noted.). Judgment reversed.

The issues involved, in this case present the following facts: The Aztec Land Company, Limited, asserts, that on October , 30th. 1903, they purchased with the right to he sent into possession thereof, by esparte writ of seizure and possession from the State of- Louisiana, thru 15. S. Frasee, State Auditor, acting by virtue and pursuant to the provisions of Act Ho. 80 of 1888, as amended by Aot 136 of 1896, the fol-lowing deso ripbed property. Then follows a description of the property which consists of four oertain lots of ground, in the Second District-of the City of Eew Orleans, square Ko.569, bounded by Bayou St. John, Dumaine, St. Philip and Genois Streets, the last lots measuring'131 feet front on Bayou St. John, by 150 feet in depth; more fully described in the Auditor's Deed, annexed to and made part of the petition.

That they desire to be sent into possession of said prop-erty by exparte writ of seizure and possession as provided by Section 5 of Act Fc. 80 of 1888; claiming the value of the property in question to be worth two hundred dclls-rs. Their prayer is that the ex parte writ of seizure end possession may be issued herein, direoted to the Civil Sheriff, commanding'-him to seize and place petitioner in possession of said property in pursuance to the provisions Of Section 5 of Aot Ho. 80 of 1888, and also prays for costs and general relief.

The deed of the Auditor is annexed to and made part of the petition.

This suit was filed May 34th, 1904. On the 14th of June of the same year, one John F. Dupuy alleges that he was served with a written notice notifying him that by virtue of a writ of seizure and possession directed by the Honorable, the Civil District Court for the Parish of Orleans, he would."within the legal delays seise and take possession of the property aforesaid, claiming and alleging that he is not in possession of sny euoh lots, he is not in possession of any property in any such square as bounded by Eayou’St, John, Bumaine, St. Philip and Genois Streets, that there is no such square in Hew Orleans, and there is no street at St. Philip and Genois Streets. That he avers that he does own a certain piece of property front ing on Eayou St. John on the North west open bank adjoing-ing the property of Arthur Blanc, which property measures 11S feet on said Eayou St. John front, and 170 feet in depth on the side nearest the property of Arthur Blanc and 150 feet more or less also in depth on the other side,said piece of property forming a perfect triangle, but that said property is not bounded by any of the streets mentioned in the Sheriff's notice, and averring further that if for any reason which he does net at present ascertain it should he decided that the property of petitioner which he has described as the same 1,0 that claimed by the Aztec Land Company, then the same does not belong to the Aztec Land Company for the reason that the State-of Louisiana never had s title to it, that none óf the formalities prescribed by law ever having been fulfilled in. the seizure,, notice and advertisement and sale to the" State of Louisiana by the Tax Collector in 188E, and-for the 'further reason that said property was sold by-the Tax. Ccllect.br on the 13 th of May 1887, adjudicated to L,.S'. Hammond, whose titie is still of record, and he annexes notice of seizure, plan of the property claimed by him, his prayer is that an injunction issue herein prohibiting the Civil Sheriff from seizing and taking possession of a certain lot of ground situated in the Parish of Orleans on the northwest bank of Bayou St, John adjoining the property of Arthur Blanc, measuring US feet front on said Bayou, 170 feet in depth on the aide nearest the property of said Arthur Blano and 150feet or more in depth on the other aide; that the Land Coup any through J.G.Emanuel, its President, he cited after due proceedings, the injunction he made perpetual, for costs ana for general relief.

The petition was sworn to hy Dupuy on the 11th of June, 1904, and the order of the Judge follows:-

"Let as within prayed for, the writ of injunction issue herein, on petitioner giving hond, conditioned, as the law directs, in the sum of one hundred dollars. New Orleans, June 14th, 1904. Signed: Bred B.- King Judge •acting for T.C.V'.Ellis, Judge.*

The hond for the amount required tsj the Court was duly executed on the same day and the injunction issued as prayed for.

On October 17th, 1204, the Aztec Land Co., Ltd., made defendants in the injunction suit filed by John F. Dupuy excepts to the petition in said suit, and shows that the same discloses no cause of action against exceptor, therefore prays the exception he maintained, suit dismissed, with costs, and for general relief.

Answer was filed following the .exceptions on the 31st of Hay, 1905, wherein the Land Company made defend ant in injunction denies all and singular the allegations thereof, except insofar as same may be admitted. Further answering avers that it purchased from the state of Louisiana, througK Frazee, Auditor of Public Accounts, acting by virtue of and pursuant to the provisions of Act No. 80 of 1888, as amended by Act No. 1S6 of 1896, on October 30th,' 1903, with theta SbíbSbx & rightto be sent in possession thereof by an ex parte writ of seizure and possession from this court; then follows the description of the property claimed in the original proceeding.

Going on further answering, the Lund Company, alleges that said property was hid in and adjudicated to the State pff Louisiana for the deliquent state tax for the yearl883, with interest, penalties and costs, assessed in the name of Robert Simon, by Charles Cavanao, State Tax Collector for the Seoond or lower distriot of the City of Eew Orleans, on January 31st, 1885, at an offering thereof by said Tax Collector under acta Ho, 16 of 1888. The sale toot place at the front door of the building in which the Civil Distriot Court for the Parish of Orleans was held, and on February 4th, 1885, said tax collector appeared before A.A,Kerr, then a notary public of this oity, and executed an act of sale of said property to the State of Louisiana in the notarial form, which act of sale was registered in the Conveyance Office on May 38th, 1885, in book 133, folio 519.

That said property was forfeited to the State of Louisiana for the delinquent state taxes for the years'1871 to 1877 inclusive under the revenue laws of the years 1871 to 1877 respectively, and having been separate forfeitures for each of said years from 1871 to 1877 inclusive, as will appear from the lists of delinquent State tax payers, on file in the offioe of the auditor of Public accounts, Register of Conveyances and the Recorder of Mortgages, And that 'the taxesfor said years, or any of them, were not paid prior to said forfeitures, not has said property ever been redeemed from said forfeitures or dny of them. That respondent and its author in title had possession of said title for thirty years, under and by virtue of said tax sale and forfeiture, and that its title thereto has been quieted by the prescription of three years, as provided under Article 333 of the State Constitution of- 1888, And that respondent pleads said prescription in bar of said action. Prays that suit may be dismissed and the injunction dissolved, for. costs and for general relief.

This matter rested from that time until June, 8th. 1915, when Pupuy. allege.s in his .supplemental and amended petition, " that at the time of his purchase of the property claimed by him herein, , he took possesion of the triangular piece of ground having a greater length on two of the line of the triangle, and a smaller amount on the other line, decribed in sale to petitioner. That said triangle is enolosed betv/een the fence exisiting at the time was transferred to him by the heirs of Robert Simon \r.d wife as the property described in the deed of sale, and your petitioner has been in contineous, uniterrupted and unequivocal possession thereof, ever since his purchase thereof, Ap-ril 30th. 1900. That his vendor has been in the same qualified possession-t thereof since 8th. September, 1859.

That in addition to the nullities avered to the title-of the Aztec Land Company and to the fact that your petition -er does not believe the Aztec Land Company's title to be to the same property, your petitioner avers, that said Land Company's title is null and void giving the following reasons.

1- That it was not in the power of the State Auditor to have sold said property unless same Vías readvertissd for sale by the State Tc.x Collector under Act 80 of 18da¿ that said advertisements and offer for sale never took place,

3- That it was the duty of the State Tax Collector if he had authority to make said sale to have sold the same to any person offering to pay the prioe fixed by the Legislature, and that your petitioner in order to avoid any possi-ble dispute and litigation, and simply for the purpose of protecting himself against litigation, did on the 18th. day of Pecember, 1899, deposit with John Brewster the sum of ^43,13, for the purchase of said property, and on the 14th. day of February 1900, said Brewster returned the amount so deposited to petitionerbecause no deed could, be obtained from the Auditor; that previous to the said deposit in the hands of Brewster, your petitioner had agreed to purchase the property from the heirs of Robert Simon and wifee.

The prayer is that the supplemental and amended petition be. filed, that the Aztec Land Co. Limited, be cited hereto, and after due proceeding had that the Injuno tion herein issued he made perpetual so as to include the triangular space of ground measuring 341 - 5 - 4- front on Bayou St. John, 116-1-5- at the base of the triangle and 346--8-10- on the third line of the triangle, and for all general relief. The petition was sworn to on the 5th. of da June, 1905.

On the 8th. of November, following, 1905/ pro tunc, the Asteo Land Co. Limited, mc.de defendant in the Injunction herein filed an exoeption to the supplemental and amended petition of John F. Dupuy, plaintiff in injunction, and showed; that Duimy was estopped from questioning an exceptors title to the property in c ontest hy reason, of his conduct as setforth in the original and supplemental petition. That said supplemental and amended petition taken in conjunction witt the original petition discloses no cause of action against exceptor.

The prayer was, that the suit of John F. Dupuy be dismi seed at his costs and for general relief.

Following, October, 37th. 1905; motion was filed by the Attorney for the Company and Vfilliam H. Howoott, defendants in the injunction suit herein, and on suggesting to the Court, that the default agaist said Howoott taken herein, on October 35th. 1905. was wrongfully taken, as there was pending at the time and exoeption to the supplemental and amended petition of the plaintiff in injunction wbioh has never been tried or otherwise disposed of. Servio e was made on the 38th. October, 1905.

In the same suit between the seme parties, prayomg for a confirmation , Dupuy represents-, that the Astee Land Co. on the 34th, of Kay, 1904*, obtained a writ of seizure and possession against the property owned by petitioner, that said cause was partialily tried, but no final judgment vías ever rendered on the merits of said cause. That petitioner remaining in possession of said property has been paying state and city 'faxes thereto regularly.

That on the 10th. October, 1913, the Aztec Land Co. thru its Attorney moved the Court to dismiss the injunction suit, on the ground that five yearB had expired and that the said suit had been abandoned which was not ¡true, that said judgment was signed on the same day, Ootober, 10th. 1913, That this judgment is null and void having.been rendered during vaoation of the Court. Further, that it was rendered without notice to your petitioner, and that same should be set aside and annulled. That in law the fiv e years of prese ription averred does not apply to this case it is only a matter of defenoe to the writ of seizure and possession; that the pres oriptibn does not begin to run as long as the writ of seizure'and possession remains in Court; that your petitioner has been in actual, corporal possesion of the property sought to be taken away from him and as long as his possession continues prese ript-ion is interrupted.

Alleging further,, that he acquired said property by Act under priv ate signature from Palmyra Simeon and oth-ers on the 30th. April,1900, that the property involv ed in the writ is described as four squares, lots o f ground and improvements thereto, in the second distriot of this City, in qquare 469, bounded by Bayou St. John, Dumaine, St. Philip and Genois Streets, the lots measuring, 131 feet on Bayou St. John, by 150 in depth. And further alleging, that the stress named Genois and St. Philip »»#-set-4pen7-a«d-4# are not open, and if St. Philip andi/enoie Streets were open there was not as much depth as 150feet; alleging further, that even if the property as above set forth is intended to be Hoovered by the description mentioned^ in the writ of seizure and possession, then he avers that the State of Louisiana never had a title to same, none of the formalities prescribed by law having been fulfilled in the notice of sezure, advertisement and sale of the State by the State Tax Colieotofr in 1885.

He further avers, that said property, never belonged to Robert Simon to whom it was assessed, no proper noticed was ever served, ana the post offioe notice never gave originally that designation, and that the petition for injunction and the supplemental and amended petition are made part hereof. He pata prays that the original injunct -ion issued, prohibiting and enjoining the Civil Sheriff-from proceeding any further with the execution of the writ of seizure and possession issued by the Aztec Land Co,, that they be cited, and after due proceedings the exparte judgment rendered on 10th.' October, 1913, be declared null and void , that the title of the State of Louisiana to the property owned by petitioner be set aside and annul-led, and he prays for general .relief,.

This petition was sworn to on the 15th. day of January, 1915, by John F. Dupuy, and an order issued, as followa;-"Let as prayed for a writ of. injunction issue on petitioner giving bond in the sum of $100.00." Signed, T. C. V;. Ellis, Judge..

The bond was executed on 15th. January, Í915, and the writ of injunction, restraining and enjoining plaintiff was issued on the same day.

On the 35th. January, 1915, the Aztec Land Co. made defendant in the injunction suit filed herein by Dupuy, on January, 15th. 1915, answered the petition, and shoéd, first, a general denial, then asserting, that on the 10th, October, 1913, the Aztec hand Co, thru its Attorney moved the Court to dismiss the injunction suit pending at the iiai e time between Bupuy and the .land Company, on the ground, that five years had expired , that nthis suit had been abandoned, and judgment was signed on the same day,October, 10th. 1913.

Further answering, respondent avers, that the injunoti -ion suit dismissed by said judgment disoloses the same cause of aotion as setforth in' the injunction suit filed January, 15th. 1915; the judgment in the former is con-clusive evidence of the abandonment of the oause, and said plaintiff in injunction has no longer any right of action in the premises, as to whioh fact said judgment is pleaded as res ajjudicata. Then goes on the reiterate, as in its original petition, all the ailegatione set forth, and finally, that this injunotion be vaoated, set aside, and the suit of Dupuy be dismissed at his cost, and that petitioner have judgment reoognizing it as the sole owner of the said herein above described property, in perfect ownership, and for costs and general relief. This petition was sworn to on the 33nd. January, 1915,

Again, we fihd a supplemental and amended petition of John F. Qipuy, filed 6th. January, 1916, under the same title. Alleging that on the 34th. May, 1914, judgment was rendered and signed by this Honorable Court, ordering a writ of seizure and possession to- issue against petitioner; that on the 14th. June, 1904, your petitioner enjoined the execution of said judgment; that on 10th. October, 1913, by exparte motion, judgment was rendered dismissing the injunction suit as abandoned. Then goes on to recite that ten years has elapsed since the rendition of said judgment, the same was not revived, therefore prescription of ten years having been aoqjiired, the writ of possession fell fell with the prescription of the judgment. That the sue--pension of prescription ceased on the 34th. May, 1914. Alleging further, that the second injunction was sued out on 15th. January, 1915 after the acquisition of prescription, and he pleads the prescription of ten years.

He goes on further to allege, that he is in possession, a tax payer of the City of Hew Orleans and the State of Louisiana, and that the title executed by the State Auditor was in violation of the Act 136 of 1896, and if this is maintained the State of Louisiana would loose her taxes on the property sought to be recovered, which will tend to increase the burdens of your petitioner. That therefore he is entitled to set up the nullity of the deed made by the State Auditor to the Astee Land Company, Limited, being in direct violation of the terms of Act 136 of 1896, which requires the payment of all of the taxes, interest and costs due to the State of Louisiana as the fixed purchase price to be paidby the purchaser. Further, that the Auditor was without power to sell property adjudicated to the State unless same had been readvertised and no bid obtained. He therefore prays, that this supplemental petition be filed, the prescription of ten years be maintained, the Auditors title to the Aztec tend Company, Limited, to the property ic in litigation be declared null and wold, and further prays for general relief. This wes sworn to by Dupuy on the 5th. January, iSBB 1916.

We have thus detailed all the pleadings in this cause pending since 1904, both by way of petition for possession and the various writs of injunction which have issued.

The Court &† quo set aside the judgment by default in fevor of the Aztec Land Company, Limited, and we are mot at the threshold wit', the question, whether or not, under the Act of the Legislature of 1998, being Act iso. 107 of ifc .timt jcar, which Aot is an Act to ejaend esud reenact Article 3519 of the Revisea Civil node of 1870.

Article 3519;-

" If the ple.ir.tiff, after bavin, -.lie his "demand, abandons or discontinues it, the "interruption shall be considered as hav-"-ina sever happened.. V.hen the ¿.laintiff "having made his demand shall at any tine "before obtaining final judgment allow five "years to elapse without having taken any "steps in the prosecution thereof he shall "she be considered as having abandoned the "same".

This question has been adjudicated and passed upon by our Supreme Court in various oases, amongst them the case of the City of New Orleans -vs- New Orleans Jockey Club to be found in 129 La. page 64. At page 65 the syllabus reads;

" Under Act 107 of 1898 a suit is considered abandoned when, at any time before obtaining final judgment, the plaintiff allows five years to elapse without taking any steps in its prosecution, and, where sex such suit pending is in this Court on appeal may be dis--miused".

Ait pages 73 and 74, same case, On motion to dismiss, the Court goes on to say;-

" In July, 1904, the City of Eew Orleans inatufad instituted the above entitled suit in the Civil District Court, psaying for the expropriation of certain property, for park purposes, and obtained an injunction wtaxxshyx whereby the defendant company, which was alleged to be in possession, was inhibited from laying off race courses, destroying trees, digging wells, etc. thereon.The judge a quo made an or.der permitting the defendant to bond the injunction in part; and thereafter, there was a judgment for defendant, maintaining an exception of nc cause of action and dismissing the suit, and plaintiff appealed. The transcript was filed in this court on November 9,1904. On Deoember 5, 1904, there w-s judgment, overruling a motion, filed by defendant, to dismiss the’ appealjand on March 31, 1905, the case was called and continued indefin-ately, since which nothing further has been done..

"Defendant now moves that the appeal be dismissed on the ground that under Act 107 of 1898 the cause is consider -ed as having been abandoned. The legal, representatives of the defendant have appeared and "give this bourt to know and be informed that they do not consent, but, on ’’ .e contrary, object to, and protest against, the dismissal of the appeal herein on the ¿round alleged.

The Statute referred to in the motion amends and re-enacts C. C, .55.12, sc as tc make it read:

" /’.rt. 3519. If the plaintiff in this case, after having made his demand, abandons or discontinues it, the interruption shall he considered as never h aving happened. Shsnever the plaintiff, having made his demand, shall, at s any time oefore obtaining final judgment, allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same", "ppe-.l dismissed.

In the case of Lockhart vs. Lockhart, to be found in 113 La. Rep. p. 872, the syllabus reads." -

"Under act 107, p. 155, of 18SS, amending and re-enact ■30/rf -ing article 3§i5, Civ. Code 1370', a suit is considered abandoned when, at any time before obtaining final judg-ment, the plaintiff allows five years to elapee without taking any steps in it3 prosecution, and, at- the suggestion of any party in interest, it may properly be stricken from the doc ket ox dismissed."

At page 374, in the body of the. decision, the court goes on to say;-

" The amendment, therefore, consists of a distinct clauos declaring under what circumstances a suit shall be considered abandoned. It iras, unnecessary to deolare under what oiroumstanceg a suit should be considered discontinued, beoause it Is oommonly under stood that suoh a «result is accomplished when the plaintiff appears in oourt and rxai voluntarily withdraws it;but the matter of abandonment was one of interruption, depending upon o'lroumstanaese and oonduot, and subjaot to no fised rule. It was therefore», as we think, the purpose of the General Assembly to substitute oertainty for uno ertainty, and, It being known when a suit-Is no longer pending In a oourt beoause of Its having been discontinued, to make it known when it is no longer pending in oourt because of its having been abandoned."

This oourt, in the 11th Oourt of Appeal, paga 388, in State ex rel Yazoo & Mississippi Valley Railroad versus Edrington, Judge, in its syllabus, says:-

"A step in the proseoution of a suit, within the meaning of Aot 107 of 1898, requires some formal move before the oourt intended to hasten judgment,"

Quoting the case of the City of New Orleans versus Jockey Club and Teutonia vs. Connelly, 133 La., and 63 Southern Reporter, page 63 . The Court goes on to say:-

"It is perfeotly olear that there oan be no uncertainty whatever, that a plaintiff had no intention of ah&x abondoning hie suit, if he had actually taken some formal steps before the court in oonneotion therewith, it follows that the whole uncertainty grew out'of things done informally and out of oourt. Hence it was, this species of uncertainty is what the Legislature meant to eliminate."

The case referred to by the Court of Appeal, Teutonia L & B C.o,, versus Connelly, the court reiterates what was previously decided in oases referred to in this opinion and affirms the same doctrine, qupting numerous authorities. In the 130 Louisiana, Howcott vs. Petit, the same doctrine was announced.

The plea of prescription of five years under Act 107 of 1898, on the ground that after obtaining his order for possession the Aztec Land Company taking further steps in his suit is not well founded. The Act has no application to this case.

The order he has obtained was the equivalent of final judgment, just as the order of seizure issues in a petition for executory process. The Act applies to a plaintiff who having filed a suit and prays for judgment remains quiescent for five years before £k obtaining final judgment . The dcores for executory procesa Í3 30 far a judgment that an appeal lies from it. The only plaintiff in the case was the Aztec Land Company, whose petition was equivalent to an action to set a-’ide a tax sale for previous illegalities. In the 2nd Annual, page 490, Chambliss, Executor, vs. Atchison, the court goes on in the following language:

’’Interventions take place in suits but as an order of seizure is not a suit. All the proceedings allowed under it are summary, and parties are not permitted to emba -rass the ndministrati on of summary justice with matters enpui3 having no connection with the main issue; nor oan they inthat manner deprive the parties of the order of seizure x'rcri* to the right to contest their claims in the ordinary forum -vnd to have them tried before a jury. Courts of justice are open to t.ie intervenors in this case for the enforcement of their rights in a direct action, but this unusual complication of suits should be discouraged as tending to create endless confusion"

^ £0 that the motion of prescription of^can years in behalf of Eupuy and against the Aztec Land Co, to dismiss the Com--panv's case fbr the reasons given and the authorities cited, u an net p-revail; on the contrary, v-e decide, that the injunction suit filed in 1904 originally lying dormant over ten years under the Aot 107 of 1898 must prevail. More than five years having elapsed from the time of the issuance of the original injunction and the trial of this cause in the court a quo. Also see the case of Barton vs. Burbank, 138 La. pages 997-999.

We have most carefully examined and. re-examined this cause; it was argued and briefed in this court in the latter part of the term; vacation ensued; t'he case was re-fixed, re-argued and elaborate and able briefs were filed in behalf of both parties in this contest.

If we decide on the merits of this controversy there can be no doubt that plaintiff in injunction has not made out his case; on the contrary all the facts and the la w are with the Aztec Land Co., Ltd.

It is therefore ordered adjudged and decreed that the judgment of the lower oourt maintaining the injunction and dismissing the suit of the Azteo Land Co., Ltd., is annulled, avoided and reversed,and that there now be judgment in favor of the Azteo Land Co., Ltd., as prayed for,' dismissing the injunction and quieting said oompany in its title to the land in question, with oosts.

Judgment reversed.


author: St. Paul, Judge.

text:
    NO. 7620
    MRS KATE PATTERSON HAAG ADMINISTRATRIX, ETC VS E. Z. OPENER BAG CO, ET AL
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   0 I I H I O H,

St. Paul, Judge.

This action arlass under the Hnployer’s Liability Act (Workman’s Compensation Statute) Ho 20 of 1914, amended by Ho 243 of 1916.

v_3 It involves the interpretation of the terms "family of the deoeased” as used in Seotion 8, of Paragraph "f" subsection 8 (page 615), reading as follows;

(8) If there be neither widow nor widower, nor child nor dependent parent xm then (compensation shall be paid) to the brothers and sisters and other dependent members of the family if of the deoeased not hereinabove specifically provided for.^x x x Actually dependent upon the deoeased for support to any extent at the tine of the aooldent, etc”

She claim for compensation herein made tot on behalf of a nephew and nieoe of the deoeased employee, who though dependent upon him for support, at least at ÜWftUé to some extent, yet were not under his authority, either legal or actual, and did not reside with him.

We say that the nephew and nieoe were dependent on their nnole at least to some extent, because the evidence shows that although their father lived, yet he had long abandoned them and their mother, and contributed nothing to their support; that their mother could barely provide for herself; and that the deceased was the principal contributor towards their support, nevertheless they were not under his authority beoauae their father (not then divorced nor legally separated from their mother) was legally in authority over them, tlie actual authority over them was exercised byftheir mother who had placed them under the roof of her sister and the latter's husband; the deoeased residing elsewhere and pretending to no authority whatever over them.

On behalf of the claimants it is contended that the statute uses the tense "family of the deceased” in the sense of blood relations, or descendants from a common root; whilst on the other hand defendants urge that the terna are UBed in the sense of a household preaided over hy the deceased, meaning those who live under his authority.

Upon due consideration we think the statute uses the terms J.n the latter rather than in the former sense; and we think so for these reasons.

I.

Subsection 8 aforesaid unquestionably uses the terms in the same sense as used in the following provision taken from subsection 18 of the same section and paragraph, viz;

"Compensation shall be payable x x x on account of any child or brother or Bister or other dependent member of the family not otherwise provided for, only if and while x x x under the age of 18 years, etc," (p. 516)

And that provision undoubtedly uses the terms in the same sense as in the following provision taken from the same subsection, viz;

" x x x The term child or children shall cover only legitimate children or acknowledged illegitimate children, but shall Include step children and adopted children members of decedent's family at the time of hi3 death, eto." (p.516)

But it is dear that in the latter provision the terms cannot refer to blood relationship, since blodd relationship cannot cease and a provision which would require that same should continue until death would be meaningless. Hence the word family is there used in some other sense; and its broadest meaning when otherwise used is that contended for by defendant. C. C. 3556 #12.

II.

likewise the word family in#f*ytg##$$# subsection 8 aforesaid, is of course used in the same sense as used in the original section of the main act, H/S 80 of 1914 (Section 8, paragraph C, page 58) reading as follows;

" x : x Ko pe rao■ te considered dependent unices a member of tie family of the deceased employee, or hearing to him the relation of husband or wife, or deseoendant or ascendant, or brother or sister, or legally adopted child."

But here also the word family cannot have been meant in the sense of blood relationship, since it is followed by the words "descendant or ascendant, or brother or sister," put in the alternative although included within that word if used in the sense of relationship; and henoe was evidently meant in some other sense, the broadest possible being that contended for by defendant as aforesaid.

III.

The Employers Liability Aot (Workmens Compensation Statute) is neither peonliar to, nor original within this Jurisdiction; it is derived from and intended to accomplish the same pprpose as statutes of a similar nature previously in force in the New England States; so that the terms of our act must have been meant in the same sense as similar terms used in the statutesof those states.

Now the statute of Massaohussetts provides that"dependents shall mean, members of the employees family or next of kin, who are wholly or partially dependent upon his earnings." See In re Kelly, 111 N. E. Rep. 395.

And the Supreme Court of Massachussetts has four times interpreted the word family as used in that statute to mean membership in a household presided over by the deceased and subjeot to his authority.

In re Kelly, 111 N. E. Rep 395

In re Murphy, 113 N. E. Rep 285

In re Cowden, 113 N. E. Rep 1036

In re Murphy, 117 N. E. Rep 794

June 1919.

Under the circumstances we think our statute uae^the word* "family of the deceased employee", not In the sense of hlood relat-lonahlp, hut In the sense of membership in hla household or subjection to hla authority.

She Judgment appealed from is therefore afflimed.

New Orleans, la,


author: St. Paul. Judge.

text:
    NO. 7655.
    EDWIN VIRGIN VS EMILE PORKERT.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   opinion.

St. Paul. Judge.

Plaintiff wae injurad whilst in defendant a employ and recovered judgment for six months compensation. The injury still continuing plaintiff then sued again for an additional six months compensation.

Defendant pleads prescription under section 31 of the Employer's liability Act (No. 20 of 1914) whioh in.effect provides that cttlms for compensation shall be barred unlesssued for within one year after the accident (or death) or from the time when a payment was last made on account thereof.

As the additional olaim was filed more than a year after the accident but within a year after defendant paid the judgment against him the question is whether a payment must be purely voluntary in order to interrupt prescription under seotlon 31 of said aot.

The trial judge thought not, md we agree with him.

Section 31 must be read in oonneotion with seotion 20, whioh in effect provides that no agreement between the parties or judgment of court oan remain final for more than one year quoad the extent of the injury or the amount of compensation due; whioh latter may be increased as well as diminished should the ocoasion warrant doing so.

Under the oiroumatahoes it is olear that the prescription of one year oannot as to said increase begin from the time of the accident; from whioh it follows that the prescription must in such case begin only from the time when the last iHiétit payment was made.

But such payments are never voluntary, in as much as under sections 17 and 18 they must always be made pursuant to some.judgment of Court; for even the agreements between the parties must be reduced to the form and subatanos of Judgments of Court.

1919

fio» in tlio out before na, whatever be the form In whloh this oíala may originally have been made, it le In substance and effeo* nothing more than a proceeding under aeetlon 20 of the aet to have the mount of the ooapenaatlon lnereaaed In accordance with the terns of that section, and was properly referred to and passed upon by the Judge who rendered the first judgment.

She plea of prescription herein filed la not well founded, and that la the only defense aet up.

Judgipent Affirmed.

Hew Orleans ha,


author: CHARLES E. CLAIBORNE, JUDGE.

text:
    Charles 3?. Claiborne, Judge,
    SIMPSON J. KING VS. EDMUND F. LAMBERT.
    No. 7673.
    June 27th, 1919.
   CHARLES E. CLAIBORNE, JUDGE.

Under the authority of Act 16 of 1386 p. 24, plaintiff sued the defendant in the Parish of St. John the Baptist for the price of a lot of peas sold hy plaintiff to defendant, Defendant alleged that the defendant was domiciled' in the Parish of Livingston, hut that the peas were supplies furnished to a plantation situated in the Parish of St. John the Baptist cultivated hy the defendant for his own account. The peas were sequestered under-a writ subsequently issued addressed to the Sheriff of the Parish of Orleans where the peas are in storage. The Sheriff of this'Parish now has them in his possession.

The defendant excepted to the jurisdiction of the Court alleging that he was not the owner of the plantation for which, the peas had heen purchased, nor was he cultivating the plantation for his own account, hut that the plantation was the property of his wife, and that he was cultivating it for her account, and that the peas had heen bought hy him as the agent of his wife and as such managing the plantation;- that he was not domiciled in the Parish of St. John the Baptist, hut that he was domiciled in the Parish of Livingston, and he therefore pleaded commorancy.

The District Judge referred the exception to the merits. Subsequently he ordered the .Sheriff to sell the peas as perishable under Article Code of Practice-261 and Act 94 of 1900 p. 151. The Sheriff has advertised the peas for sale and he will proceed with the sale unless restrained hy this Court.

The defendant thereupon prayed for a .Prohibition forbidding the plaintiff and the Judge of the District Court from, proceeding any further in this matter and for a decree setting aside the order of sale and enjoining the Sheriff from making the sale;

Act 16 of 1S86 p. 24 reads as follows:

"That parties holding claims against any citiaen of this State for labor performed, or for supplies or material furnished, or for improvements made upon any farm or plantation, or real estate, are hereby authorized . to institute suit for the recovery of such claims before any competent court having territorial jurisdiction of- the property, whether ‘the owner be domiciled or not la the parish where the property is situated".

The judgment of a Court refusing to maintain a plea to its jurisdiction is subject to review on appeal from the final judgment on the merits. The jurisprudence is that in ordinary cases where there is a remedy by appeal, prohibition will not issue. 4 A., 11; 11 A., 696; 15 A., 34; 8 A., 92; 21 A., 123; 25 A., 381; 27 A., 158; 32 A., 1092; 1182; 33 A., 923; 39 A., 132; 40 A., 838; 42 A., 1182; 43 A., 380; 44 A., 298, 567, 1102; 45 A., 243, 943, 1322; 47 A., 1602; 48 A., 27, 1348; 49 A., 1454, 1211; 50 A., 19; 112 La., 429; 113 A., 1; 115 La., 615, 471; 119 La., 468; 122 La., 83 (86); 134 La., 944; 127 La., 116; 128 La., 836; 131 La., 367; 134 La., 348; 135 La., 973; 571; 136 La., 1030; 138 La., 371; 139 La., 643, 983; 140 La., 363; High Ex. Rem. § 765.770.771.

But an exception has been made of late where want of jurisdiction has been pleaded and overruled. Then a Prohibition may issue in order that the parties might not be put to the trouble and expense of a long litigation idiich might be of no avail. 45 A., 243; 104 La., 6; 129 La., 495; 135 La., 571 (577); 140 La., 366.

The ruling referring the exception to the merits was tantamount to a dismissal in so-far as the reasons for granting » Prohibition were concerned; for it forcea the defendant to a trial of the case, and thus puts him to the trouble and expense intended to be avoided by the Prohibition, and, justifies us in examining relator's right to the writ.

The authorities are that where the allegations of the petition show a prima facie case of jurisdiction the wiit will not issue- 11 A., 187; 13 A., 89; 20 A., 239; 29 A., 360; High on Ex. Rem. § 780.

Prohibition will not issue tdien the very question of fact on which the application is grounded, is denied. 10 R., 169; 35 A., 1110; High on Ex Rem. § 788.

risdiction under the Act of 1886. The question oT Jurisdiction depends upon the fact whether the defendant was managing the plantation for his own account or for account of his wife,• If for his own account, the Court had jurisdiction; if for aocount of his wife, it might not have it, and because she was not made a defendant and no judgment was' ashed against her. The detprmi-nation of those questions of law and fact involved the merits of the ease, and the District Judge was correct therefore in referring the exception to the merits.

Besides, ties Prohibition is not a writ of right; it is within the sound discretion of the tribunal to which the application is made. The party who applies for it must satisfy the Court that he has no other adequate remedy to vindicate his legal rights. 19 La., 167; (173), 183; 21 A., 123; 27 A., 336; 26 A., 146; 32 A., 1182 (1186); 33 A., 923, 1285; 35 A., 538; 44 A., 298 (301); 45 A., 943; 115 La., 471; 117 La., 643; 122 La, 46.

Relator has not explained to our satisfaction how his. interests or those of the plaintiff can be promoted by arresting the sale of the peas by the' Sheriff, or how they can be injuriously affected by the order of the District Court directing the sale. But we can easily see how much damage may ensue by arresting the sale. To set aside the order of sale means that tus peas will continue in storage during the coming hot months for an indefinite time, perhaps to be eaten there by weevils and certainly to be absorbed by the storage charges. . It is our duty 'to protect the interests of all parties and to minimize the loss.

It is therefore ordered that the application for a Prohibition be denied.

June 27th, 1919.