author:
CHAHLtíS F. CLAIBORIIE, JUDGE.
      CHUIJES P. CLAIBCBHK, JUOH.

text:
    Charles F. Claiborne, Judge.
    SUCCESSION OF ANTONIO CAROLLO
    No. 7714.
    October 27th, 1919.
   On liotion to Dismiss.

CHAHLtíS F. CLAIBORIIE, JUDGE.

A motion has been made in this Court to dismiss the appeal herein on the two folloMng ¿rounds:

lo that no surety has si.rned the appeal bond; and

So That no citation of appeal was served until July 29th, although the appeal was granted on petition by order dated July 3d, and made returnable on July 28th.

The name of the surety is not mentioned in the body of the bond. The bond is signed by the appellant, the "Succession of Antonio Carollo by F. kanale, Administrator" . "Signed, sealfd, and delivered in the presence of (signature) Cassidy Barrett". IIo other signature appears on the face of the bond. Upon the back of the oond are the following printed words:

"Affidavit of Surety*1
George Untereiner oeing duly sviorn, soys: That he is worth over and above all his debts and obligations Fifty Dollars in assets that can be subjected to levy under execution, and that he resides in the Parish of Orleans.
Sworn to and subscribed before me this 3d day of July, 1919.
"Signed" Geo. J. Untereiner
Charlee V. kacaluso, hot. Pub.
"Affidavit of Principal"
Frank Ifenalc, Administrator of Succession of A. Carollo, being duly sworn, says that he is informed and believes that George J. Untereiner the surety on this bond, is worth over and above his debts and obli« gations in assets that can oe subjected to levy under execution, the amount for which he has hound, himself on this hond.
Sworn to and subscribed before me this 3rd day of July, 1919.
"Signed" F. Hanale
Charles V. Macaluso,
Hot. Pub.

The George J.' Untereiner and Charles V. Itacaluso, mentioned aoove, are both attorneys at law representing the appellant herein.

Section 4 of Act 112 of 1916 provides:

"That no officer of any Court shall accept any bond, unless each surety thereon shall have made oath that he is worth, over and above all his debts and obligations, in assets that can be subjected to levy binder execution the amount for which said surety has bound himself in said bond, and unless the party furnishing such bond shall have made oath that he is informed and believes that each surety on «aid bond is worth, over and above said surety*s debts and obligations, in assets that can be subjected to levy under execution, the amount for which said surety has oound himself in sai*1 bond, provided that the provisions of this Section shall not apoly to Surety Companies authorized under the laws of this State to do business in this State".

It is evident that t‘rte two affidavits above mentioned were ~ade in accordance with the requirements of the above Act, one by the Surety and t-.e other oy the principal. What other purpose could George J. Untereiner have in affixing upon that portion of tr¡e oond reserved for the "Affidavit of Surety", and where Sureties sign, hi» affidavit that he was worth Fifty Dollars, the amount of the oond? In arguing against the motion to dismiss, George J. Untereiner at the c«r of the Court solemnly asrerts that he signed t‘-~e bond as Surety. All that the law requires is the evidence that some one has «igned trie oond as a surety whom the appellee can ?iold on default of the Appellant. Wi* think it appears with sufficient certainty that Untereiner did sc «ign,

In State ex rel. Babin, 13 Ct. App., 260, this Court held that although the party named as surety in the bond did not sign the bond, it would be good as a bond if signed by another party under the signature of the principal.

This ruling was made in accordance with decision# pf the Supreme Court under similar state of facts/in 6 A., 74; 33 A., 1461; 34 A., 539; 35 A., 560; 115 La. 643 other cases quoted in the Babin case. —

In all those cases the bond was maintained upon the ground that it was patent that some one had signed the bond as surety and that no other conclusion could reasonably be reached. —

/ J- Appellant urges that the appellee cannot complain of the Y/ant of timely citation of appeal, because the appellee has come into Court to move to dismiss the appeal on a prior and different ground, thus waiving citation.

In State vs. Montegut, 7 M., 447, the attorney-general prayed the Court not to notice the appeal for two reasons:

lo That the State was not suable,and

2o That the citation of appeal had been served upon him, which was not legal.

The Court said:

"The attorney-general x x x having been served with the citation of appeal, having attended in this Court and prayed a dismissal, without pleading what he now calls an illegal or insufficient service in abatement, this Court is bound to proceed to the examination of the case on its merits".

This opinion was followed in Vallee vs. Hunsberry, 108 La., 137 where the Court said:

"the motion to dismiss sets forth several grounds, the last of which relates to the want of notice, and it has been held that this a counts to a waiver of such notice. State vs. Montegut, 7 M., 448". 21 A., 278; 26 A., 148; See also 9 M., 497; 11 M., 20; 4 N. S., 359; 5 La., 256; 10 R., 140; 20 A., 22; 28 A., 835; 35 A., 127.

The same jurisprudence applies to original citations to bring a defendant into Court.

nV/ant of citatio/i is waived by the flefendant who appears for any other purpose than to plead tlic rant hereof" . 1 L. D. p 112, IV, 61; 134 La., 290; 125 La., 222.

\7e, therefore, conclude th at byr.ahin;; the motions to t'-’o appeal for want of a smyrfcy on e oond^the appellee has waived his ¡lotion to dismiss for rant of auffi-ciant c:ito.f i Pn. chouf"h both “Zounds ■‘'or dismissal wore included ir one an.! the ss .ie notion.

-lotion to dismiss the appeal oeuied.

October 23rd, 1919.

March 22nd, 1920.

CHUIJES P. CLAIBCBHK, JUOH.

This 1* a proceeding by an «apart to tlx hla feea.

ItBk Itanala «as appolntad Administrator ot tMa succession oX Hovembar 29 th, 1918. Q» lnrantory amounted to 48778.01 ooagposad ot

Bmsahold affaots and ottloa tnrnitnra 865.00

liberty Bonda 1000.00

Opan Account 42079.19

ippraisad at 1000.00

Cash In Bank 1918.01

Baal Batata «000.00

total ‡8778.01

On December 20th, 1918. tba Administrator tllad tba following motion:

"On motion ot frank Kanala, s xAfciiaistrator of tbls Succession, x x and on showing to tba Court that Antonio carollo, tba daoadent, was marrlad twice, first to llar gara t Kanala mora than 21 years ago x x and secondly to Rosa Da jean on Karoh 16th, 1918 x x and that jntonio Carollo died on Ootobar «2nd, 1918 x x'x that the earnings of the oommunity ara found In the books of tba decadent x x x that It la naces-aary that an expart accountant be appolntad to audit daaedent’a books and ascertain tba earnings of Antanlo Carollo between tba data of Karoh 16th, 1918 and October 22nd, 1918, reporting aaoh half month’s earning separate and apart from eaoh other, It la ordered that George H. Penn, certified public Accountant be appolntad to audit tbs books of the decedent and report the earnings or profits made by Antonio Oarollo from Karoh 16th,1918 until October 22nd, 19Í8 reporting eaoh half month’s earnings or profits separately to asoartaln the cornealty rights between Antonio Carollo and Bose Deleen, his widow, and be fixed by this Court."

On January 23rd, 1919, the Administrator filed a provisional account; upon that aocount, among the list of liabilities figured the following item:

"Geo. H. Punn Auditing Books 476.00".

This account was homologated by Judgment rendered February 7th, 1919.

On May 29th, 1919, Geo.- H. Penn filed a motion in which he alleged that he had been appointed to audit the hooks of the deceased; that the hooks of the deceased had been placed in his hands on January 29th, 1919; that he had completed his report and had filed a copy of it in Court; that he had expended not less than 151 hours or 18 and 7-8th ddys upon the work, - and that a reasonable charge therefor per day is $15, making $283.12; that the account had beerf filed and homologated without his knowledge; and he prayed that the Administrator show cause why said report should not be homologated, and vdiy he should not be paid $283.12 as a privilege creditor superior to all others.

The Administrator answered this rule by averring that Penn had been appointed expert "after having agreed and contracted with this defendant to audit the books of the decedent for the price and sum of $75;"that the "account was filed, approved, and homologated with the full knowledge of George H. Penn after having been advised of the amountfor which he was placed thereon for services in auditing the books as agreed to by him and informed that he would be paid for his 'services as soon as his work was completed" that: Penn has no right to ask the homologation of his 'report for several reasons; that he should not be paid more than the sum for which he contracted to audit the books; and that the charge of $283.12 is excessive, unreasonable,and out of all proportion to the work done.

The trial judge rendered judgment in favor of Penn for $283.12 for the following reasons:

"There was some conversation between the expert and the Attorney, in which no specific agreement was reached and the expert rendered valuable service, much larger than that contemplated in the conversation, and, in my opinion, is entitled to proper compensation".

The rule was made absolute and Penn had judgment command, ing the Administrator to amend his provisional account and to plac Penn thereon as a privileged and prior creditor for $283.12, and homologating his report.

Prom this judgment the Administrator has appealed,

The testimony is very short. George J. Untereiner, attorney for the Succession, testified:

"IShen this matter came up I was looking after the Succession of Carollo and I told Mr. Penn we would have a set of hooks that we would probably have to be audited, and I asked him what he would charge to do the work, and he said $75.00, and I said "All right, I will get an order of Court and ¡-vet the books; and 1 got an order of Court and had him appointed as expert, and delivered the books to him. x x x I filed the account and told him the account was homologated. I told him of it and said to him, personally, in his office: Mr. Penn, when you are through with your work, your money is there, Now it was uoon that price that he made to ma that I had him appointed by this Court to audit the books and make' a report",

George H. Penn testifies that he had absolutely no knowledge of the account filed or that he had been placed thereon for $75; he denied thathe had ever entered into an agreement with Mr. Untereiner to perform the work for any amount; he says he worked 150 hours or 18 and seven-eighths days of eight hours each, for which he charged $10 &. day. His testimony on cross-examination is as follows:

By Mr. Untereiner:

Q. Mr. Penn, how did you come to be employed in this ease?
A. I met you on the corner of Com ¡on and Carondelet Streot? one doy, and you asked me if I would audit a set of books for an estate, and I told you I would be very glad to have the work.
Q. Vlas anything said about the cost?
A. You asked me what it would cost, and I told you it vas impossible to tell this without looking at the books. You then gave me the impression it was a very small job and would probably take several days, and I told you, then, in that case, I would charge, say $75, or basing my ideas on $25 a day, for three days, which is the usual charge for chat class of work. But I told you. of course, it would be necessary for me to see the job before making that price. You said, then, you would try to get me appointed a* expert, and I thanked you.
Q. Then, you did say it would cost about $75?
A. Based on what you said, that it would take several days' time.
Q. Did I speak to you about ary other set of books?
á. Why, no; Z don't recall it.
4. That was the only set of books I spoke to you about?
A. Yes, sir: you didn* t mention any name, but that was the only time you spoke to me about auditing books.
Q. And you stated it would cost about $75 to audit these books?
A. Based upon your statement to me, it would take two or three days’ timé.
Q. Did I say anything to you about two or three days?
A. You gave me the impression it wae a very small job, and that it would take two or three days.
Q.- You got an impression that it would -
A. You described it, and I thought you eaid it would take two or three days.
Q. Did I say anything about two or three days?
A. That is the impression you gave all the way through.
Q. And you said it would be about $75?
A. Based on what you said, it would take two or three days.
Q. Whan you got the books, did you tell me' at any time it would cost more than' $75?
A. No, sir.
Q, Did,you tell me at any time you couldn't audit those books for that price?
A. I did not.
Q. Did you at any time tell me that you would require extra compensation?
A. I did not, as no compensation was ever named. I never considered I had ever made any price to you.
Q. Did you at any time tell me the cost of auditing those books would be more than $75?
i. I thought you hod ««na* enough and knew the value of work.
Q. Maybe you art right, I haven't got m sense?
A. You forcad tha answer, air.
Q. I ask you again, did you arar tall me you would charge more than $75 for auditing those hooka?
A. I named you a quotation at $25 a day, which ia the customary charge.
Q. Bid you say $25 a day?
A. That is what I based my price on.
Q. Did you tell me it would cost $25 a day?
A. I told you, from what you said, that it was a nail job, it would cost $75, and from that impression you a gave me, 1 expected to gat $25 a day.
On re-examination, ha said:
Q. And you deny most positively you ever made a pries with him?
A. Yes, sir.
Q. Is, the price of $15 a day the usual and customary price for that class of work?
A. It is below the usual price. I have just finished one job of the same character of work, at $25 a day, for another estate.

Both witnesses apee that there was a conversation con» corning the possible charge for auditing the books. The only disagreement between them was that Unterwiner testified it was a flat prioe of $75, while Penn said it would be about $76. To are of opinion that if Penmhad intended to oharge $15 or $25 a day, he should have so informed Untereiner. His statement that it would cost about $75, was certainly not calculated to coosiunMAe that information. It meant that it would cost that much, more or less. But after the books were delivered to Penn, he was then in a position to ascertain whether the work would msount to more than $75; he should then have spoken, and should have in* formed Untereiner thatthe work would cost more, or would eoat at the rate of $15 a day; his silence at that time was equivalent to a confirmation of the probable prioe he had made. He certainly had no contract with Untereiner for $15 a day; the hast ha could claim would be the meaning of his own words, about $75. But thee» is such a distance between $75 and the amount claimed hero, $283.12, that it cannot be presumed that Untereiner would har6 originally consented to it. Penn's statement to Untereinr misled him. To allow Penn* s claim would be to put his employer at his mercy. He could with as much force haya claimed $25 a day for 50 days. There is no evidence that Untereiner was aware of the customary charge made by members of the association of Certified Public Accountants. We are therefore of opinion that even if no contract for $75 is proven, Penn is estopped from claiming a larger amount.

That much of the judgment ordering the homologation of the Auditor's report was also an error as the Auditor hád no interest in having it done.

It is therefore ordered that the judgment appealed from be reversed and annulled at plaintiff s coáfc in both _ courts.

March 22nd, 1920.


source: Caselaw Access Project

license: Public Domain

text:
    Court of Appeal----Parish of Orleans.
    No. 7729.
    L. Frank & CO. -vs-Southern Express Co. and the American Railway Express Co.
    By Dinkelsniel. J.
   Statement of Facts.

L. Frank & Co., a commercial co-partnership, doing busi-ness and domiciled in the City of Hew Orleans^, sue the defendant companies for the sum of $96.50, claiming that the Sourthern Express Co., a common carrier, did, on 13th. June, 1918, reoeive a shipment of ohiokens, shipped by H.

L. Hodge, of Finge? Tenn. That the shipment in question consisted of twenty-one coops of ohiokens, and the said ohiokens were shipped by Hodge at the place Stated to do delivered to plaintiff in this City, and when said ohiokens were shipped that the same were in healthy and good oondii--ion, but that when delivered in due course they were all dead. Claiming further that said property was not properly handled by defendants and not delivered in proper condition. That they were* responsible for said chickens for the full value of the amount olaimed together with $6.83, oost of transportation paid by plaintiff and they pray for judgment accordingly.

Defendant, the Sourthern.Express Co., deny generally all the allegations of plaintiffs petition, but admit that it received the shipment referred to, but denies chat the cnicjnonc ca.*.. liv '¿..oir -.ath tbrvuwü -.ay ra-lt of avión^rwj that, f nr tier they did not Inc.; 1.- c^nai'oion of tne enid— — OaiC j.j — "3- ->w 0.3 i.- — O- Ij. Of j_-.il CiilohCUS *iaS aUC tC./ v*. .. 1j dx-dt , cj.j"<vi -a ..j.^ 0j.»J-CO *■’«i* wi ¿ CVv* OrO'^aCO m 3.1*2 cuoys i.i /hich t.*» -.-re 3hi_.¿^- oy oo..3r_nor¿.

Ti:; facts i." - .is c-.sc -re ¿11 ir* favor of ¿intií f. Ib \;as teuti'Sf 1* the oni^yor — - chi-ct jn¿ were ^--.it in coups .v.o nad al./uys ocen u.uúw, 0. ..’it.iC-¿n-a had boon a shi^ or oí sifl.ili'ir arló cien for t iu _v-..t six yogi’s and *ol ey /.ere e.11 u)c,cU 5 u ¿jro/vi’ aba ¿ju<«1 banner; that ti -.re ñora only from lo to ¿0 ncaá to o:-, olí coop, all in ¿ood condition, ana shipment; •»;__} .i-uo cas .. v/ -¡.nú tac ijlivcry ¿noi 11 h-vr. boon male ni ti ir. toanty-focr borra bloro aftc.r íSm ¡it.ioat losa of -ay nd if ¿.ro^orly Caia,d forr The witnesses in this oase in behalf of plaintiff, Mr. Hookstein sweats positively that the ohiokena were all dead. ’ r. Alo-vorish corroborate^ t.iis fact anu ¿.ivc» it c.s his opinion, dft^r r.ar.y years of ax.^ or i snee in handling frcia.it of this chariotsr, tne-t tno chickens ’.vci'o si :oth:-.roa to death onroutc ai.d did not receive ¿.ro^-r oa*ra.

fhe fcsütif'.ony of ctu-fonáaát¿ j.o -11 to tbs effect, negative in o.a-raeter, ..nd I —m ounvincou. th-fc tac chickens did nut receive th- Ou,re tduy snould h-vo received by the dsf endaat co_ a nv,

The authorities are almost univoroal that c^rri«*y i..asS u-tisfy ana diseñaras the obligations in_.cb.5d urwa fchuia, *.nd unless they can ^revo that the los* cr had seen aunc by accident or anc-nitrolable events t.icvy cannot be released xrOit ouch chli-ation. Civil Code, Art. ¿?£-x. Lch...-nn, "tern ? Pc. . ? 1. 1 . 3 Ó. G. Co. ha. 115, 1. and tne w:t..ur¡ Si jo z i írc oit«a«

Ía.í- Court in 7 Court of ...Xau : 'wClfiO ■ . V. , icw daci-n. a virfccu.ll-18, Truxillo v-j. tw fc.i5 9U.lv CÍ’f..wt. nlsU, Y*. Z. C. V.. . li. Court of Cell, jj. 316, and in the 14 Co'fcart' 9f Appeal,' p. 5?t^, where there was a special defense set up the Court hold».* in claiming special defenses on general principles, to Bimiliar effect.

It is admitted, that the Southern Express Co. has transfer* -red all its assets to the American Railway Express Co., and therefore, in our opinion , both defendants are responsible to plaintiff in this case.

For the reasons herein assigned, the judgment of the First City Court is affirmed with cots of both courts.

Judgment Affirmed.


author: By Ms HOnor'John St. Peral.

text:
    No. 7746.
    Court of Appeal- Parish of Orleans.
    Parish of Orleans VS Abraham Burglass and Mrs. Henry Benton.
    By Dinkelspsll, Judge;
   OPINION.

By Ms HOnor'John St. Peral.

This Is an notion to abate an alleged nuisance under the provisions of Aot 47 of 1918, which provides, in suhstanoe, as follows;

I. That buildings or other places in whioh "assignation (slo) or prostitution is carried on, oonduoted, continued, permitted or exists . are deolared to be nuisances," and the owners, agents, leasees and occupants thereof guilty of "maintaining a nuisance."

2. That the District Attorney fand others) may maintain an aotion to abate said nuisance and enjoin the owners, lessees and occupants from maintaining the same or permitting the continuance thereof.

3. That a violation os such injunotion shall be a contempt of court, but of a Itind peculiar to itself, in this; that infliction of penalties vel non is not discretionary with the court, nor is the power of the court for to punish thereof merely limited (Const Art. 177); but, as in criminal statutes, a minimum as well as a maximum penalty for suoh contempt is fixed, whioh minimum fat least) 3hall be imposed.

4.That if the existence of such nuisance he established, the judgment shall inolude an order of abatement closing the building or other place against its use for any pumose whatever for one. year thereafter, unless sooner released as mentioned below; and the use of said premises during said time bjr any person in ¿ny manner is likewise made a contempt of court punishable as aforesaid.

5.That upon furnishing bond with surity for the full value of the property, conditioned that he will not permit the property to be used for prostitution for one year thereafter, and upon satisfying the judge that he is "in good faith," the owner may have the property released for other purposes; subject however to a forfeiture of $100 under said bond (in addition to the liability of the owner to punishment fo-r contempt as aforesaid) for each day the property may be used for the prohibited ^purpose; the same being revoverable summarily in the one original proceeding.

6. That the net amount of the fines (and forfeiture?) collected shall be paid over to the school fund.

7. That the general reputation of the premises, or of the defendants (owner and tenant), or of the occupents and habitual visitors, shall be admissable in evidence and judgment may be based thereon.

And the aot Is entitled, "An Act, to declare houses of assignation and prostitution.a- nuisance, K o."

I.

Neither the act Itself as a whole, nor any feature thereof, is challenged on constitutional grounds, and hence re are not now concerned with any such consideration. Nevertheless, in order to interpret and applg this law, we are hound to notice the nature and extent of certain features which find themselves therein.

It will therefore he observed^ I. '¿'hat the statute is of a highly penal character, i’or instance; what the ligis-lature is pleased to terra a contempt, has in effect been made an offense, to which a fixed minuraum penalty has been attached which the court must inflict; not in its-discretion or for thepurpose of securing compliance with its mwids.te, hut as. of course and as a punishment applicable not to parties only hut even to "any person do."

2. That the penality of closure for one year, which follows as of course, is incurred by the mere fact tbrt the premises aro being used for prostitution, regardless of any faotual! knowledge thereof on the part of the owner; which closure is of course nothing else than a forfeiture of the uso or revenues of the property for one year.

5. And lastly,that these two features constitute the essence of the ststute being the only nev; matter therein, and. therefore the whole ststute; which otherwise makes no change in the law, since admittedly the purwer of the courts to abate tbr nuisance by injunction or otherwise, and punish in the usual way any violation of its mandate, exists independently of the statute. 29 Cyc 1218-1222

II.

Oonsidoring, therefore, that the statute is in its nature highly penal, these consequences flow; that the ststute itself must be strictly construed in applying these penalties, and that the facts necessary to sustain a eomplui it h r"'fU.der must be proved beyond reasonable doubt; U. S. vs. 84 Boxes of Sugar, 7 Peters 453.

III.

How the statute (section I) does not denounce a house as u nuisance and inflict the penalties merely because an act of immorality has been committed therein, hut only if "prostitution- 3.3 curried on, conducted, if continued, permitted or exists"’ therein.

Rut the term prostitution, legally and otherwise, means something more than simple immorality; it implies promiscuous / or ia.discrirAiiUr.te commerce between the seres, Z2 Oyc 731. A single immoral act, or even a series of immoral acts ■between tbc name persons does not constitute prosti-1 ntion. or tirand the house wherein they are committed a house of prostitution; State vs Irwin, 91 N. W. Rep 960 (Iowa); also 91 N. W. 760 (8 Iowa 447); Tenement Dep't vs Mc Devitt, 215 N. Y. 160. Henoe to constitute a house of prostitution, the premises must have been maintained, even if only for a brief period, for the purpose of promiscuous commerce between the sexes.

And since in the very nature of things a house oannot be maintained for such purposes without some degree of publicity, both sought and tnaought, it follow» that suoh a house and its "reputation" are inseparable.

And it is just these very features thereof (promiscuous commerce therein between the sexes, and more or less widespread knowledge of .where it may be practiced without restraint) which constitutes the real raenaoe to publio health and public morals and henoe the "nuisanoe" whioh the statute intends to repress.

llore than that; it is also ##$# this very feature (more pr less publicity) whioh breathes life into these otherwise drastic laws by fixing the owner oonstruotive, if not actual, knowledge of the use which is being made of hi3 property; thereby saving them against the speoious charge or punishing the innocent instead of the guilty and thus taking property without due prooess of law. Tenement Dep't vs Mc Devitt, 215 N. Y. 160 (Ann Cases, Am. & Eng, 1917 A 455)

IT.

Our statute Indeed seems to recognize this whole situation fully; it denounces only houses "where assignation (sic) or prostitution is oarried on, conducted, permitted or exists," and this irresistably compels the idea of a place or resort for lewd persons and promiscuous commerce between the sexes; that is to say (since the aot cannot he broader than its title, Const. Art 31), a house of assignation,pr house of prostitution, purely and simply.

And as suoh places cannot exist; without at once (or soon) acquiring a reputation for being what they are, the statute provides that the reputation of the building, its owners, tenants, occupants and habitual visitors, may suffice as to the basis for suppressing the place. The condition of the release bond (shall not permit) and the fact that the owner must satisfy the judge that he is "in good faith," also serve to confirm the idea that the reputation of the premises is to be taken into consid; ration in determining v/hat constitutes a house of assignation.or prostitution. For if the facts be there, the reputation will not be wanting; and to dispense with any inquiry into reputation will inevitably lead to an abuse of the act and the warping of its purpose to other an;’ sinister, ends.

V,

Ihese things considered, we agree with the District Judge that plaintiff has not made out a case against these defendants under the statute.

It is shown, at most, that on a certain occasion the police, acting upon a hint from some undisclosed source, watched the premia, to wit, a lodging house conducted by an /> old woman, occupied by herself, her husband and her son, and visited by her daughter and grandchildren, all of whom as well as the house itself bear a good reputation; that they saw a young man enter the .premises with a young woman known to. them as a, prostitute with whom he occupied a room for a brief while and undeniably had intercourse; that they also -found, sitting and conversing in another room another young man and two women, one-of whom resided in the premises and was in her negligee (not her underslothas); that this woman had onoe been a prostitute but for a year or more the had been earning an honest living; and othsr woman was respectable.

As to whether or not the old woman knew that her room was rented only for a passing purpose, there is a oonfliot of evidence between her and the young man, sufficient at least to throw doubt upon his testimony; especially with the unexplained failure to take the testimony of his woman companion (only two waelcs after the ocourenee), and in the absence of any suggestion as to the nature of the complaint received by the polioe and whether anonymous or- otherwise; nni flmllji unnt i~i rl nnk1 ng --*-4,vr1' -r ~nrr ~v' ilinmin Tvnt nnn nf th< nPPIssih hllfl Him silly — — hp nlfhti in pit fnirHíierlT mil i I ITI"T'_ Ini mniinirn en tlin ni 1 tninii ntunil imV n 'TirriTI inmiT-S- hewhnuTti

Henoe, we believe, the single fact on which plaintiff relies is not proved with anything like certainty; and oven if proved, falls far short of establishing that the premises in question constitute a "house of prostitution, / or house of assignation" within the meaning of this act, or in any sense.

VI.

In conclusion, it may be superfluous yet well to say, that-the principles announced abové do not apply, and arc not intended to apply, in cases of statutes and ordinances levelled at individual oases of lewdness and immorality where the penalties are visited directly upon the offenders; nor in oases where nuisances in fact may exist independently of the statute, and it is only a qusstio.i of suppressing them.

But wh- ' r> r\mu to1 : v r "'cply this; That tV purpose of this statute, passe C as a wcr measure, is to suppress in the interest of public health c*nd public morals, so called "commercialized" prostitution, «. -r. put the burden of that suppression chiefly upon the owners o4' who property used for th«?t purpose, th; statute noírn, none the less, to deal f-Jily with such o’-^ev:., he-,os to hold ^r.e.rj to account only so far us they iaio'v, or should hnovr, that they arc aiding end abetti.i¿, tho 1 nr-tasóme traffic; that unless the t-.tute is so understood and ¿-.-pniicd it tr not only harsh, but broader than its title and ohjoctioo^pie on other grounds both of h> -<.nd of policy; and ho-mo cu r conservative ifitcrorot-it'-on thereof "ut res metfip t ^uam persrt."

The judgment apir .Lod i rom is there foro sf/irraod .

New Orleans La. March 1920


author: By Dlnkelapiel, J

text:
    No. 7748
    Court of Appeal - Parish of Orleans
    Parish of Orleans versus Widow J. Barzana, Mrs. Patrick Henry Comfort, Mrs. G. Dublucet.
    By Dlnkelapiel, J.
   By Dlnkelapiel, J

This auit was Instituted by the Distriot Attorney for the Parish of Orleans in the Civil District Court on July 33nd, 1919, alleging that under act <f the Legislature of the year 1918, being Act No. 47, the owners of the prenlsee No. 1030 Orleans Street in this City, Mrs. Widow Barzana and Mrs. Patrick Henry Comfort, and also the tenant of said premises, Mrs. George Dublucet, and oocupant of same, and that in said premises assignation and prostitution was carried on, continued and permitted, and in violation of the aforesaid act of the General Assembly.

The District Attorney further xpax represents that said building and premises are used by prostitutes, for the purpose of prostitution and assignation, and others of similar character renting rooms therein and using said premises for the purposes mentioned.

The District Attorney further alleges that said premíese bear the general reputation of being a resort of prostitution end u place whore prostitution and assignation is carried u, ilnue.d or permitted, and that all the acts che r^c i crslituto a n-i sanee within the law and that a writ cf ii ¿un.-* it r. ar.-, ah .-.er.t is necessary ir. the premises.

The , ..■;ov f the . titirn, together with the affidavit annexe.i. ,:st: th- Court the iseuanoe of an order of abater, er.t. closing the prenises for one year, also that a writ of injunction issue restraining the owners and the tenant from further conducting the acts charged,above referred to, in said premises, and that in due course the injunction be made perpetual and tbs order of abatement be made permanent for one year.

The tenant, Mra. Duhluoet, admite the oooupanoy of the premises in question, averring that she has lived in the neighborhood for about IB or 80 year* and specially admit* living In tha house 1030 Orleans Street, but denies specifically the allegation that «aid house, the one she lives In, Is slther a house of prostitution or assignation frequented by persons of lewd obaraoter; on the contrary, avers that the house is an honest boarding and rooming house and that she Is a woman of good oharacter, that she has always borne a good reputation, and the house In question also bears a good general reputation for decency and morality, and that neither assignation nor prostitution is carried on, conducted, continued or permitted to exist therein, and her prayer is that plaintiff's suit be dismissed, the rule nisi discharged.

The other defendants, Mrs. Barzana and Mrs. Comfort, who are the owners of the building in question, after presenting their titles to the property No. 1030 Orleans Street, aver: that their tenant, Mrs. Eublucet, had occupied the premises foT a number of years prior to these proceedings, and that during her entire occupancy as such tenant not a single complaint had ever been made by any of the neighbors or any other party in reference to the had character of the premises . ■ or immorality said to he conducted therein, and no oharges of any kind have ever been heard, so far as these defendants are concerned, against theii’ tenant, Mrs. Dublucet, and in so far as these defendants knew she, Vrs. Eublucet, had always conducted herstlf in a highly respectable manner, borne the very best of reputation, that the premises in question were rented to her as a boarding and rooming house, and they have alwaye understood and believed that the rooms, some were furnished, others* were not, and that all of them were rented to none but respectable people, permanent as regards their stay, and oary of these living there were married, having families, and to all oharges made against the premises in question they enter a most unaquivocable denial.

A careful reading and study of all the testimony in this cause satisfies us that there was quite a number of unfriendly neighbors who for years back had in many ways attempted to fasten upon the defendant, Mrs. Dublucet, and upon the house in question a very bad charaoter, and some years baok some of these same witnesses who presented themselves in this oase made affidavit appearing in one of the RecordeS's Courts of this City and there testified to the immoral character both of the house in question and the defendant, Mrs. Dublucet. The Judge in that case decided Such to be the faot, but an appeal was taken from his deoision and that deoision was reversed by the Judge of the Criminal Distriot Court, and thus that matter'in so far as the house and Mrs. Dubluoet waee ooncerned was settled;- but, nevertheless, it is apparent that the feeling of ill will and doubtless of enmity between some of these good people and the defendant, Mrs. Dubluoet, continued, and continuous complaints were made by -these same parties to the members of the Police Department, to the Governmental and State authorities, sad who from time to time had the. house in question watohed, but nothing ever came of these investigations. Testimony of members of the Folios Department, testimony of other witnesses who have appeared in this oase is in evldenoe in thlB record, together with that of the various inmates of the hoos e in question, all of them white people, many of them married, some of them with ohildren, who ocoupi.ed various rooms in this house, many of them who lived there for years, and some of these people, working people, left their ohildren under the oare, guidance and protection of Mrs. Dubluoet, and it is evident that she must have taken the very best oare of them, no complaints having ever been made as regards the rearing and taking oare of.these children, and not only that, but on Investigation nade by the proper authorities, It was ascertained by an examination of the premises, questioning the inmates and others familiar with the house, and with the tenant, Mrs. Dubluoet, that she had kept a rooming hous e and boarding house for permanenoe where ladles and gentlemen frequently established their homes, some taking their meals there and others residing in the place, and all testified, not only to the good charaoter of the house in question, but also gave lire. Dubluoet the very best moral character.

It will therefore serve no good purpose in prolonging this opinion or entering into a minute disoussionf of the svldenoe in this oase, pro and con, and nothing would be gained thereby. As his Honor, the judge a quo, saw and heard the. witnesses, and for several days patiently and olosely heard the evidenoe, and he having been for years prior to his present oooupanoy of the bench of the Civil Dlstrlot Court a Judge of the First City Criminal Court of this City, was in a far better position to analyze, sorut-inlse, weigh and finally decldd the question presented than we are. He doubtless noted the character of the witnesses, he knew and heard and saw everything in reference to the matters presented, and finally oaroe to the coneluslon that the rule nisi and the injunction, together with the abatement suit, should be dismissed, and in thhs, his opinion, we concur.

For the reasons assigned herein, it is ordered, adjudged a$d deoreed that the judgment of the District Court be and it is hereby affirmed.

Judgment Affirmed.


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charleo F. Claiborne, Jddge.
    PARISH OF ORLEANS VS MRS. FRED FRANZ & AL, APPELLANT.

      No. 7750.
    March 22d, 1920.
   CHARLES F. CLAIBORNE, JUDGE.

This is a suit under the injunction and abatement Act No. 47 of 1918 p. 67. The suit was filed on July 23rd, 1919 in the name of the District Attorney. He alleged that Mrs. Fred Franz was the owner of the property No. 228 North Rampart Street in the City of New Orleans; that A. Richman and Mrs. Jack Richman were the tenants of said premises; that prostitution wap carried on in said premises in violation of Act 47 of 1918; that said building tos used for said purpose on or about July 5th, 1919; that said premises bear the general reputation of be in#: a place, where prostitution is carried on, and that all the acts charged in this petition constitute a nuisance within the law^He prayed for an injunction enjoining Mrs. Fred Franz and A. Richman and Mrs. Jack Richman from further continuing prostitution on said premises, and for an order of abatement closing up the premises a-jp.inst their use for one year.

.The defendant, Mrs. Franz, excepted that she was a married woman and could not be sued without the authorization of her husband. This exception was overruled.

This defendant then answered. She admitted that she was the owner of the property 228 Rampart; that she had been told that one A. Richman and his wife occupied said premises; that for lack of information she denied the allegations that said premises were used for prostitution, or that said premises bore the reputation of being a resort for prostitutes; she further alleged that she Had purchased said premises on July. 5th, 1919; that the former owner had collected the rent for the month of July in advance; that she had visited said premises only once and that was on the day before this suit wasfiled, for the purpose of notifying the tenants to vacate on August 1st, 1919, as it was her intention to convert the building into a atore for commercial purposes.

There «as judgment against all three defendants; lira. Franz alone has appealed.

1

The exception of Mrs. Franz "that she is a married «ornan and cannot be sued without the authorization of her husband" is not veil taken at this date. It is true, as stated by her counsel, that Article 118 of the Code of Practice and Article 121 of the Oixil Code of 1870 proTide that a suit against a married woman "must be brought both against her and her husband", and that "the wife cannot appear in Court without the authority of her husband"; but Act 244 of 1918 p 435, as we interpret it, has removed these disabilities. The act reads as follows:

"Section 1. Be it enacted &c "That a married womaq, whether a resident of this State or not, shall be competent to contract debts, purchase, sell and mortgage, and to bind and obligate herself personally with reference to her separate and paraphernal property, and to appear in courts and to me and be sued, to the same extent and in the same manner as though she «ere a feme sole."

Under that statute, although her ability^Jta wife^to contract as a feme sole is restricted to her separate property, her power to appear in courts to sue and be sued is general and unlimited, and dispenses with the necessity of joining the husband as defendant or of obtaining his authorisation,

II ..

The law under which this suit iA prosecuted is in the following words:

"Sec. 1. Be it enacted he: That any building,structure, land or other place in this State, in or upon thioh, or in or upon any part of which, assignation or prostitution is carried on, conducted, oontinned or permitted, or exists, and the furniture, fixtures, equipment and musical instruments therein and other contents thereof are declared to be nuisances, and shall be enjoined and abated as herein provided; and the owner of any building structure, land, or other place in this State, and the officers of any corporation which is the 'owner, and the agent, representative and employe* of any owner, and the lass**, sublessee or oth*r oooupants of any building, structur*, land or oth*r plac* on or upon which, or in or upon any part of which, assignation, or prostitution is carried on, conducted, continued or permitted, or exists shall be guilty of maintaining a nuisance, and shall be enjoined as herein provided".
"Sec 4j That if the existence of the nuisance be established in an action under the provisions of this let, an order of Abatement shall be entered as a part of the judgment in the case, which order shall direct the effectual closing of the building, structure, land or other place against its use for any purpose for the period of on* year, unless sooher released &c."
"Sec. 7: That on hearing in any action filed under the provisions of this act evidence of the general reputation of the building, structure, land or other place, or of the defendant or of the occupants thereof or habitual visitors thereto shall be admissible and judgment may be based on the general reputation so proven*.

Upon the trial of the case four members of the Detective department of the Police force of the City were examined as witnesses. They all testified that the property 228 North Rampart Street had the reputation of being, and was a house of prostitution; that it had been raided three or fourmtimes within the last eight months; that the defendant, Mrs. Richman, had been arrested, convicted, and fined by the United States Court, for operating an immoral house; that on the night of July 5th, 1919 they had the houseunder surveillance; they saw a notorious prostitute enter the house in company with a man; they entered the house and arrested the woman; they went into another room where they found a man in scant garments in company with another woman idiom they knew to be also a prostitute, and whom they arrested also; they had also seen them enter the house.

The man arrested with one of the woman testified that he had been solicited by one of the women and went up to the house with her.

$Ms avldan0* *•* sufílolant to establish conclusively that the house No. 228 North Rampart street ves om Min which prostitution, was carried on" at least up to and imluding «Toly 5th, 1919 the day upon uhioh the act of sale to the' defendant was passed*

The defendant's answer to this proof is twofold, following the lines of her answer: lo gbat she had visited said house only once, and that was the day before this suit was filed, for the purpose of notifying the tenants to vacate, and that she intended to remodel the building and convert it into a store| and she denied that the house was conducted for Inmoral purposes at any time,hat if it was, she argusd, that she oould not be made liable for the illegal acts of the previous owner*

As to the first part of this defense, there is not a partióle of tes» tlmony upon the subjeot of lira* Sana's visit to the house at any time, or that she aver, at any time, notified the tenants to vacate, or that she intended or had taken any steps to remodel the building* It does not appear from the transcript that ura* Franz appeared as a witness or testified in the case at all* 2ha only evidence offered in her -behalf was the act of sale to her, and the testimony of her husband. He testified that they bought the house at auction a day or so before the act of sale; that he had never been in the plaoe; that he did not know its reputation and never made any effort to find out; that jack Riohman and his wife had moved out on July 29 or 20th* This is not sufficient to prove that no inmorallty was oomnlttad in that house after July 5th* and up to July 23rd when this suit was filed* When certain conditions are proven to have existed upon a oertaln date, the presumption is that those condition have continued normally, and the/burden of proof is upon the party who alleges tXr- ¡ro¿l-S~S7— .!/■ that they Save changed, 1 Greeiyy&41; 1 H. D., 490 (JBran* h»a produced no evidence of . ohonge of conditions, nor of an intention to change than, Hrs. Biobaan and her husband may hare left of their on tocord, or Impelled by this suit .gainst them. Bat on the oontrory there 1. positire evl-denoe of oontlamlng lunarnilty after July 6th and op to » fen days before the trial oí thla oase. feo of the detootire* testify that since July 6th they had nan the tenant., Mr. and Vre. Blohnen, In the earns hone, and np to a few (ay. before the trl.l, and that they had aleo seen one of the prostitutee mentioned ahora aomlng oat of the hoaee sinos July 6th, and aoooit men on the I (treat, and Ohat they laid aleo arrested her since that time, and that she aontlnuad { to give her real dance os Bo, 228 north Rampart street. Bill eatabllabst eon-olnalrely that the law was continuously violated up to July ESrd, 1919 the j day Hila anlt woe filed, Indeed every oontlnuanae of a —es 1. held to 1 a fraah era. 8 llaokatoa.»**»

III»

9a next eontftntion of kr«. Itai 1» that ftla lad no knowladge that tla So. 886 Xorth Bsapert strait «aa conducted aa a house of prostitution. XU do not find It nioftaaary to deoide toa maoh varad nusetion wfceth»r auoh know 1ftdgft uaa an aaaantlal pr«rft<lu4»tt« to • Judgrant against bar, as wa hava cor* to tla donolnslon, iron tko trida»»», that ftht bad snob knowledge. It sbould la not uaoftiaary that tba rast el knowltdgt ba proven oonoluslvaly on aooount ol tha osoult and ayatarlous ebaraoter ol tha occupation,and tba difficulty of procuring «ltnaaaaa, and aa such a rula would tand to destroy tbs usalulnaas of tba law knowladgt masaba lnfarrad from all tba clroumatanoas of tha ossa,

t\ 9a notorious raputatlon of tba bouse, tba obaraotar of tba Inmates and ^ Tisltora, gira risa to tba ¡r* sumption that any ona, and particularly ana lnrast-/^\ log bar nonay la tha purche»a of tba house, knew or could or should hate known tba rial foot a about tha bouse, shift ¡ara snap tl on Is msdt conclusive by tbs fallar* of tba defendant to taatify and deny knowledge of any Imaoral reputation vv or oandnet, olearly alleged In the petition and testified to by five witnesses ^ upon tha trial of the osatrfaranamfly In bar ¡areaenoe, and certainly In tba pra- ^ senes of bar attorney. If tba absanoa of knowladge on tha part of bis ellent was . , considered by bin a raterial iaaua, tba ¡rtsumption Is that ha would hsva taken ^ bar testimony, it la a rule of law that whan a party to a suit falla to testify ^ as to certain faota known to him and Important to tba determination of a ault _[ _ tba jrasuaption la that his testimony upon this point would have been against ^ him. 117 La., 286 (283); 118 La., 611; 106 La., 587; 52 La., 1719.

Iban It la a wall established fiat that a bout baa bean usad oontlxnoualjr far purposea of prostitution tba Statute sbould ba liberally construed. 149 N.W., 418.

Proof at tha ill reputation of a house, or of tba Inmates, or Of parsons resorting tharw^onatituts preauiqitlva avldasoa that tha bouse la ao used with tin knowledge of tba ownar. 155 Pac., 581; 149 N.W., 942; 126 Minn., 95; 147 N.W., 953; Burglaas vs. Boyd No. 7556 Ct. App.

9m Jud grant of tba trial Court was In favor of plaintiff and wa cannot ■ay that ha errad.

Judgmtnt Ifflrrad.

Karoh 22nd, 1920.


text:
    Court of Appeal---Parish of Orleans.
    No. 7751.
    W. H. Hodges. -vs-F. Nabos.
    By Dlnkelsplel, J.
   Appellee, Nabos, has made a motion in t-is case to dismiss the appeal which is denied because same has not been filed within the time required by law ana under Rule 9 of this Couri This appeal was filed on the 39th, of September, 1919, and mo.tion to dismiss'was filed on February 10th. 1930, there fore the motion- to dismiss is denied.


author: By Pinkelspiel, J

text:
    No. 7760
    Court of Appeal — Parish of Orleans.
    Parish of Orleans vs. Salvadoro Garaflo, Anthony Garaflo and Rosalie Woodman.
    By Dlnltelsplel ■ J.
   By Pinkelspiel, J

The District Attorney for the Parish of Orleans instituted the present suit against the owners and tenant of the premises 318 South Liberty Street, same being under act of the Legislature No. 47 of 1918, and charges "that the premises in question was a house of prostitution and assignation, conducted, continued, or permitted, or exists in violation of the lav/."

And he further avers that the said building and premises are used by prostitutes for the purpose of prostitution and assignation and others of like character who rent rooms therein and use said rooms for the purpose of prostitution and assignation; that said premises were used on or about August 2, 1919; that bore said premises/the general reputation of being a resort of prostitutes and a place where prostitution and assignation was permitted, carried, conducted or exists, and that all acts charged ir: the petition constitute a nuisance frith in the law, and that a writ of injunction and abatement is neocsSsiry and should is..ue herein.

A rule nisi issued directing the defendants to show cause why the writ prayed for should not iasue and for judgment of abatement closing the house for one year beinv, rendered.

The answer of the owners. Pulvadoro and Anthony Curaflc, admit t'~e ■.v'norship of the property in question and deny all other allegations contained therein, particularly in reference to the immorality of the 1eard of it; house in question or that they ever/that their tenant, Rosalie ’foodr.-an, who had occupied the place for eight years, had always borne a good reputation and as far c.~. they, the owners, kaaw, the premises in question vero u*sól as * roer. ing and eo.-irdir.,. house, had had r.'-,.-eot..tle „-:c,,li?. aa tenants thereof, and if same '•'a« used for immoral purposes, which they deny, same •■•na Us.ed without theirt knowledge or consent o,nd‘with their di¡approval.

The other dsfeiaU-rt, the occupant of the 5re.1r.ioes, in her answer adr.itj the occupancy of the premises, eh she h-d occupied for sore than loot years in the past and ivas ad fay. conducted 'ey her as a rooming and hoarding house, and that she had always conducted same in ar- orderly -..unrer, cor.lied v.ith all the li’.a and regulations ir afreet, and that sh.e "’as living in »-iin ..roriscs about the time in ouestiar. and never had rented said rooi*for any such purpose eit'“sr for ¿.restitution or ao-tignaticr..

°l..irtirf introduced in the court a -vuo several vritnessss, one Charles re':'!-'., -..ho cubit:- nti-illy stat.o1»: That he had never beer, in the house in question at any tine, except on the night of August 7, ISIS; that he •rent there in company with a friend of his and tiro girls; that he saw the defendant, Rosalie “ccdra-in. had little or no conversation with her, enraged a reem, did not knew the reputation of the house, had never heard it discussed did not commit any act of ¿.restitution, end -did not see any act of prostitution committed; did not say to Rosalie Woodman why he wanted the room; was not a paid investigator of vice nor a detective, nor was he investigating; to aseettain whether or not this was an immoral house; does not know how the police got information about the house; had been in the service of the United States, but not at the time; was not in uniform, his occupation at that time being that of a salesman.

Sergeant Martin R. Push was the next 'witness examined on behalf of plaintiff and he testifies that he knows the premises in question, 318 South'liberty Street; never knew who kept these rooms until the night of August 7th, above referred to; describes the condition on the night in question and the people he found there, three men and three women; also describes the character of clothes they wore; disclaims any knowledge that he knew the reputation of the house in question for morality or immorality; arrested the various parsons found in the house; the women were sent to the Isolation Hospital; he had beer, in the Hirst Precinct since the 1st of March, 1S18; never had occasion to arrest Rosalie v,'oodman, nor investigate her premises; knew nothing about the premises at all, other than what occurred on the night in question; and what he did was under the instructions of Captain Healy, who was in command of the First Precinct, and that was to watoh this house; had never investigated the premises himself; only acted upon instructions received from his superior officer; knew nothing of his own knowledge about the character of the house in question, nor the circumstances under which the rooms were rented; and'he was asked the question, "Do you know whether prostitution is permitted, carried on, continued or existed in that house?"- And he answered, "No sir, I don’t." Had been investigating the house for three weeks and saw no act which would justify making any arrest; passed the place often, and did not see anything out of tlpte way during his tours.

The court asked this witness: "Did you inquire of parties living in the neighborhood?" And he answered: "No sir, I made no investigation; received no complaint of the house; only under the instructions from the Captain, and that is why I had the house under surveillance for three weeks"; and during those three weeks he was asked if he inquired anything from the neighbors about the house, and his answer was "!Io sir".

Andrew Arnold, a. witness for plaintiff, states: He was working in plain clothes in the First Precinct on the 7th of August, 191S, and went into the premises in question; had been in that neighborhood at that time several hours; he described all parties going in there about midnight and informed Officer Fitzpatrick about it; had never watched the house in question at any time previous to the occasion referred to, and was only called upon to watch it on this particular occasion, and he described it as the other witnesses had, the rooms, the people, and other particulars in reference to clothing or want of clothing of the people found in the premises; he had made no investigation of the character of the people in question; knew nothing about the circumstances under which they rehted the rooms; had been in that particular precinct since the middle of June; never investigated the house prior to the present ocoasion; knew nothing of the reputation prior to that night; ¡loes not knovi whether prostitution is permitted, carried on, or exists in the premises, except as to the night, in question; never knew that the parties had ever been arrested before, nor whether the defendant, Rosalie Woodman, had ever been arrested; knew nothing about the general reputation of the house; never heard one v;ay or the other anything about it.

Corporal A. G. Giraud testifies that he found .three women in the house on that evening, who gave their names: had 'been on the police force for 19 years and in the precinct on different occasions possibly for a year and a half; does not know the defendant, Rosalie Goodman; personally, simply by sight; never had an occasion to investigate that house at any time prior to this night, and on this night had some one else investigating the plao6; and in answer to the question whether prostitution is permitted, carried on, or exists in the premises, he answered, "'tell, they did that night", and beyond that he knows nothing; never arrested any women from that house'before; never had a complaint before; and the only night a complaint was made was on the night in ijuestion.

Rosalie Woodman testifies: She was one of the defendants; that she lived in the premises 318 South Liberty Street from childhood; that she was now £8 years old; that her mother had lived there prior to her death; had never during the whole period of her life been arrested; had nevar kept a house of prostitution and assignation, but si::g.ly rented rooms, conducted a boarding house, and generally people boarded there by the week; she gave the names of several of her boarders, the prices charged for board and lodging; and she testified further that on the night of August 7th several ladies came and wanted room., ana she Uskea the question whether for room and beard, and they answered in the affirmative. She then described the entrance of the police, who arrested her and the other inmates of the house. Testifying in reference to a gentleman named Elino Thiot, who had several times ranted rooms in this particular house, she says that he m — de arrangements with her for room and board; that she did not know that ha was living at 1317 Baronne Street and she knew nothing more than what she had testified to; that he had been through her ho’-use several tines; that she had lived in this house with her mothef some 15 years and she lived in it prior to the ownership of the other defendants, and at the time that she and her mother rented it, it was owned by Mr. Jim Douglas.

We have substantially quoted from such parts of the testimony in this case, both for plaintiff and defendant, in order to asoertalh whether or not plaintiff was entitled under tfye law to the relief sought and the Judgment prayed for.

Several oases of like character have been beforothi* Court, and we have decided ir. the case of this plaintiff against A. Burglass aikl others, quoting from the syllabus of that case: "A single immoral act or even a series of immoral acts between the same persons does not constitute prostitution or brand the house, wherein they are permitted, a house of prostitution."

"To constitute a house of prostitution or assignation, the premises must be maintained either,if only for a brief period, for the purpose of promiscuous commerce between the sexes."

In the 215 N. Y. page 167, Tenement House vs. McDavitt, the syllabus reads: "We hold that an owner is not liable for a penalty because of a single act of vice, undiscovered either by himself cr his agent. The penalty is imposed when the building has been kept or maintained by the occupant for the purpose of prostitution; if, however, the occupant has used it for indiscriminate intercourse tilth men, the intelligent owner will'^artBnt be obliged to know of the offense and must prevent it at his peril."

"The penalty i» recoverable without -knowledge or negligence of the owner. The Imposition of such a penalty assumes, however, a condition of permanence sufficient to constitute a use, and that an act of vice on a single day, followed at once by the eviction of the tenants, is insufficient of itself to «how that the building has been used for prostitution within the meaning of the law." «ame authority, pare 173.

"Freaking of disorderly houses, bawdy house, 14 Cyc. 484. "A bawdy house or a house of ill fane is a house or place kept fcr the shelter and defense of persons practicing unlawful sexual intercourse and in which such intercourse is practiced." And from the same author: "A bu niy house vu.., . public nuisance under common law because it gmm- together lewd and debauche-1 persons, thus attempting f: disturb the peace and to inore.se .lity among the ¿.eople."

The statute 1-, cuestión being hi. hlv penal, must i be otnictly con»trueu, unless find that the nuisance is carried donductel. continued or permitted, or exists, a.- definei by the act.

He.ving -pu.-te 1 sub.: to-dial ? y from the testimony of policemen, both in uniform and un ^lain clothes, we find only that cn the night i' question, notwithstanding some of the officers vad been or. the force for many yc-rs, r.cti.-itlvita'Viing that ,'cr several weeks a constant and continuous ion iras made as to the c'-'-ruoter of thio houoa uni its inmate», there is no evidence produced to ¿.rove there hod b3sn anything '."'■or.g ■■:'bh these premise; at all, except on the night in gur.stioa.

The da'"end lint, Rosalie "h r imfn, -/ho had occupied these r.re-z.i-.?:; with her mother, who had died about a year prior to the institution of this suit, who had resided in the premises for about 15 or 16 years, in fact, since childhood, who had never been arrested, had never been molested in any manner, shape or form, who had always conducted a boarding hnd lodging house without question, and only on the night referred to had there ever bean the slightest Impropriety shown so far as these premises were oonoernsd, or as against the character of the defendant, so that under these circumstances it would not be proper to hold that this was a house of prostitution, where prostitution existed, was conducted, continued or carried on, and ifcatxjuenaJt ml fllthout proof of this character, certainly a determination to that effect would be utterly impossible, and flo hold the premises in question such an Immoral house as to cause it to be closed for one year and for an injunction as the aot commands would not,in our opinion, be justified.

Determining whether or not the defendants, the owners of the premises in question, s hould suffer the-consequences that flow from the act, we must be absolutely oonvinoed that the house in question was a house of prostitution and that prostitution was carried on, and it bore the reputation of suoh a house, and whatever doubts there may be must, in our opinion, be given to the owners of the premises.

In this oase the only appellants are the owners. The woman, Rosalie Woodman, has not appealed and, there-"ore, her case is not before us.

Careful investigation of all the evidence in this record satisfies that the' plaintiff has not made Its eertain, tha .burden of proof being upon the plaintiff, whloh ít hae failed to maintain.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the court a ^uo he and the seme is here'oy annulled, reversed and set aside and that there now be judgment in favor of the defendants, Salvadoro ?.nd AnthonyOSraflo, dec! >.rir.g the house in question not to be a nuisance and that the injunction, together with the judgment premises in cuestión,, be/i annulled. / // -r~, abatement of the

Judgment reversed. Judgment for defendants.1


author: St. Paul, J.

text:
    NO. 7768.
    SUCCESSION OF PAUL PIZZINI.
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS
   opimos.

St. Paul, J.

This appeal involves only a claim for an inheritance fax. fhe oaae a thus stated (in anbetanoe) by the Counsel for the fax Colleotor.

_ "Paul Pixxini, before he died, made a binding agreement to sell a piece of real estate to the Order of Elks for $18000. After hla death his administrator (acting under an order of oourt) exeouted the usual (formal) aot of Sals transferring the property, fhe fax Colleotor oontended that at the time of hla death Pizslni no longer owned the real estate (on whioh taxes had regularly beeh paid) but had merely a claim for $18000 against the Rika, purchasers of the property; whioh being personal property (and haring# previously paid no taxes) was subject to the Inheritance fax.” Sea Art 235, 236, Const. of 1898.

fhe Bistriot Judge, thought otherwise; and the fax Colleotor has appealed.

fhe trial judge did not err. "Under the jurisprudence, a promise of sale amounts to a sale only In the sense that It entitles either party to enforce specific performance; but a promise of sale Is not translative of property, and does not change the ownership of, or dominion over, the thing e**n as between the parties, or put the thing at the risk of the promisees." Caire vs Mutual Bldg Assn, (on rehearing) 15 Orleans Appeals Rep p. (7315), citing 17 La. #### 449, 10 An ### 160, 13 An 361, 14 An 606, 15 An 583, 29 An 663, 34 An 677, 40 An 712, 41 An 1107, 45 An 108.

And where the deoeased, at the time of his death, owned property whioh had borne its Just proportion of taxes, the mere oiroumstanoe# that, as the result of administration, that property was turned over to the heirs and legatees in more liquid shape, does not alter the faot that "the property donated or inherited", was the very property whioh the deoeased owned, and no other; since "Remo dat quod non habet." Succ. of Becker, 118 La 1056.

fhe ruling In Etta Construction Co vs Bruning, 134 La 58, has no application here, ^'hat was the oase of a sale jgt auction follow#! by a foxaal tranafar; and tho aoaxt h#ld that aa to wnhlla l.a. auotlon aalas, tho rulo waa tiff#rant Xxwa th* ahora atatad aa to off aat of a pronlaa of aala prlrataly oontraotad; that tha a&ludloatlon by tha auotlonear waa not a mora proalaa of aala, hut waa ltaalf tranalatir» of tho proparty without tha naad of any othar aot- But In thla oaaa wa ara oonoarnad only with a proalaa of aala prlrataly oontraotad, and not with an adjudication at auotlon.

Tha judgaant appaalad from la tharafora afflmad.

JUdgoont Afflraad.

New Orleans, La, December 1919.


author: SI o Paul, Judge.

text:
    NO. 7773
    SUCCESSION OF R. B. JOHNSON VS GRAND LODGE OF ODD FELLOWS (COL)
    STATE OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.
   OPINION

SI o Paul, Judge.

The deceased was a widower with only one son who 'was above the age of majority. Being a member of the defendant benevolent and Fraternal Association, he obtained therein a certificate of endowment payable to his estste; and for reasons satisfactory to himself the endowment was subsequently made payable to a third person, to whom the defendant paid the benefit.

The son, as administrator of his father’s succession, and ultimate beneficiary if successful herein (for the estate is solvent) seeks to recover the amount of said benefit from the defendant on the ground that the change of beneficiary was ultra vires and the payment thereunder void.

In Widow lebray against the same defendant (No. 7122) v/q held, that as the chartored purpose of this defendant was "to provide relief for the widow and orphans of its deceased members by endowment or otherwise," a by-law allowing members to name other beneficiaries was in conflict with tho charter and therefore ultra vires.

On the first hearing, however, wexheld that the charter provisions were not self operative and "did not ex proprio vigore entitle the widow and orphans of a deceased member to the proceeds of an endowment talcen out bv him in xavor of another person under the by laws permitting him to do so, (that) they must point ot some law, regulation or contract giving them the endowment, or they were without interest." And in support of their want of right to complain because of their want of interest in the fund, we cited 29 Cyo and authorities)

But on rehearing we held, that the charter provisions were self operative; and hence as the widow had a right to the benefit under those provisions, she was to be preferred to a stranger who claimed under a by law in conflict therewith.

But nothing in the opinion on rehearing conflicts with the main principle laid down in the first opinion that one unable to show a right in himself is without interest to question acts done between other parties.

I.

The question then arises whether this plaintiff has, as administrator or individually, an^such right to the benefit as to give him an interest to complain of the payment made by the defendant to the third person as aforesaid.

As administrator, if suing only for the benefit of creditors, he ceratinly has not. 29 Cyc 162; Rules and Regulations of jSndowment Bureau, Art 2 Sec 9.

II

It remains therefore to examine whether plaintiff individually, who in this instance would ultimately ta'ce the benefit, has any Interest in the fund* If so it is only because he is an orphan within the meaning of the charter.

III.

The word "orphan" is derived from the Greet, and means primarily "hereft". As a noun it is used to aesorihe a child bereft of parents (Lexicographers generally)

Row the word child certainly means progeny, but it also has another meaning; thus we have childhood, childish, ehildlihe, etc.

It has a sense narrower than the word "person" and limits the idea which that word alone would convey by distinguishing between persons either on account of generation (parent , e®gba)Aor on account of age (a man, a child).

But as the Lexicographers, whose purpose is accuracy, in defining an orphan deacrlbe#him as'a"ohild" instead of merely a "person" they certainly mean to limit the definition in some way; and no othet limitation than that of age is susceptible of reasonable explanation.

Hence in common speech orphan applies only to an infant or minor.

As a law term it is the same; An orphan is a minor or infant who has lost both parents (or only one). Bouvier Law Dictionary; 29 Cyc 1531; Chicago Society vs Wheeler, 79 Ill. App. 241, 244. An orphan is a minor who has lost one or both parents.Heiss vs Murphy, 40 Wisconsin 276, 291. The term orphan children does not include adults, i. e. persons of full age. Hammerstein vs Parsons, 29 Mo. App. 509.

IT.

It is quite true however that the word orphan, by reason of its derivation, may be strained to include any person beroft of parents, and it is equally true that it has been so strained, at times to accomplish some purpose. Thus in Fischer vs Mal chow, 101 N. W. Rep 602 (Minn) where a mother had designated as beneficiary her son of full age the policy v;co maintained because the word orphan had been used by "mothers" unfamiliar with legal terns and not intended in a strictly legal sense. And again in Renner vs Supreme Lodge 92 N. W. Rep 80 (Wis) where the policy was in favor of a man’s daughter, the policy was maintained because as she was during life his stepdaughter it followed that by his death she became his orphan. Her age was not involved.

Klee vs Klee, 93 N. Y. Sup. 590; and Berdon vs Insc Co, 99 N. W. Rep 411 (Mich), are other examples of strained construction, though in neither case was the question of age involved or even the word orphan itself.

But this much is certain that in all these ea'sos the construction was forced in order to uphold the beneficiary under the policy and thus carry out the will (wishes) of the deceased; not for the purpose of defeating that will, as we are here asked to do.

Under the eirournstanoes we think it safe to follow the common and legal acceptance ot the term.

The judgment appealed ts tTte^rtore reversed and it is now ordered that plaintiffs demand te rejeoted at his cost .in "both courts.

New Orleans, La, March 1920.


author: CHAHI.ES ¶. CLAIBORNE, JUDGE.

text:
    Char1es F. C1aiborne, Judge.
    JOSEPH TOMSANY VS. JOHN D. ABADIE
    No. 7774
    April 19th, 1920.
   CHAHI.ES ¶. CLAIBORNE, JUDGE.

This suit has a bwo-fold object, first, to annul two tax sales of the same property to the defendant, and, second, in the alternative, to compel the defendant to permit the plaintiff to redeem the property.

The plaintiff, a resident of Pennsylvania, alleged that he was the owner of tract of land situated in the Parish of Jefferson for having purchased the same on August 30th, 1910 by act of E. K. Henrlqjies, Notary, Registered Book 29 p. 648; that John D, Abadie claims to have acquired one undivided half of said property at 8 sale for taxes of 1913 made on June 26th, 1914, and the other undivided half at a sale for the taxes of 1914 made on August 26th, 1915; that both of said tax -sales are null for-the rC&oo-n that no notice was served on petitioner prior to either tale; that on 'December 3d, 1917 petitioner, by notarial act, tend¿red the said Abadie a sum sufficient to redeem said property from both of said tax sales, which Abadie refused to accept; and he prayed for.judgment annulling said two tax sales, and, in the site-motive, recognizing his right to redeem, and his ovjnership of the property.

Defendant Abadie pleaded a gou-iral denial; he averred that he had'hoúght the undivided half of the game at a tax sale made June 20th, 1914, and that he had o-en in possession of the same since his purchase; and that on August 7th, 1915, at another tax sale, he had bought the other undivided half of the sane property, and that he had been in possession of the whole since his purchase; he pleaded the prescription of one and three years; he further averred that he paid taxes on the same ahd built fences, and ploughed and drained it, and planted trees upon it; he prayed to be qui^ed in his title, and in the alternative to be reimbursed his taxes and expenses.

There was judgment for the plaintiff annulling the fcwc' 8»l«e for wont of notice on plalntlffy^elmburslng the .defendant #72.68 tho amount paid fey him at tho two tax sales.

ThO defendant has appealed.

Upon the trial of the caee the plaintiff introduced evidence to ehow, and upon the argument in thie Court, urged, that the defendant had agreed to permit the plaintiff to.redeem; and had extended the time allowed fey law to redeem^- .and that, therefore, the tender made in December 1917 was timely, fe will take up thie point- first.

Article 233 of the Constitution of 1898 provides that S

•the property sold (for taxes) shall be redeemable at any time for the space of one year &c" -

and Section 63 of Act 170 of 1898 p 346 (376) provides

•that said property shall be redeemable at any time for the space of one year beginning on the day when the said deed is filed for record in the Conveyance Office ftc*

This Statute has been upheld in 139 La., 354; 119 La., 662; 142 La 743, and in State ex rel Curtis vs Ross, 144 La., 898 (912). The sale made in June 1914 was registered in the Conveyance Office on June 26th, 1914; and the sale made in August 1915 was registered in the Conveyance Office on September 3rd, 1915.

Joseph W. Sheldon testifies that in March 1916, one year and three months after the registry of the first dale, he received a- letter from the plaintiff herein, Joseph Tomsany, a resident of Pennsylvania^in the following words:

"Please pay the taxes for the 8 acres of my land at Crown Point too";

that he called upon the defendant, John fi. Abadie, and informed him of the letter he had received, and told him he came to see him with a view of repurchasing the land for Tomsany by paying him his costs; that, at the first interview, Abadie dLd not appear willing; but that, at a subsequent Interview, Abadie said he had speri-t considerable money in improving the property and that he was not going to lose the money; but that he did not want the man's land, and that he could'have it if he paid him his expenses; in a personal interview he had with Tomsany in New Orleans, he believes in July 1916, Tomsany.told him.he would take legal steps to recovdf his land; - witness told Abadie repeatedly that he was waiting for his account in order to make him a tender, and Abadie promised to make it^but never did.

Edward P. Henri que^C-testified that on January 18th, 1917 he received a letter from the plaintiff who wrote:

"You know I bou/£ 8-3/4 acres of land >f or $800.00 from Hr. Glisson at Crown Point; it has been sold for taxes, lir. Sheldon promised me that he would get it transferred hack on my name. Please help Hr. Sheldon to do it";

that he telephoned to Abadie and told him that Tomsany had requested him to attend to redeeming his property from the tax sale; that, as he recollected it, Abadie had told him that he-had promised Hr. Sheldon to redeem the land, that he would carry out his. word as soon as he was ready; but that he was displeased because he had heard that Tomsany had come to town and had not come to see him.

Plaintiff also offered in evidence a notarial act dated December 3rd, 1917 tendering to Abadie the purchase price of the two 'tax sales. This tender, morethan one year aftf.r the registry of the tax sales, cannot avail the plaintiff, unless we hold that defendant had agreed to allow the redemption and had extended the time to do it.

The defendant, Abadie, denied that he had agreed to the redemption of the property. He testifies as follows:

Q. Did you evqr promise him (Sheldon) that the property could and you would let the property be redeemed?
A. Ho., I refuwed to have any dealing at all with Hr. Sheldon in the matter".

He denied also .that he had ever had-any conversation with Hr. Henriques; well he might, as the conversation was over the telephone, and.it appears that he did not know Hr. Henriques; he refused to accept the notarial tender.

Richard Bragne swears that about three months after the first sp]e, vi*5 p2ace of busir.es?: in this City, he notified plaintiff of tYfi tax sale.

Edv-rrd 7. Henriques testifie- that to his personal knowledge the plaintiff was r.ot in the City of Hew Orleans between the years 1913 and up to the summer of 1916 - and that during that time he was in Pennsylvania.

At the time the matter of redeeming the lands was taken up by Sheldon, some time after March 1916, the delay-for redemption from the first cale (June 1914) had expired; hut- the delay had not expired as to the second sale, September 1915. We cannot easily presume that the defendant waited an acquired right as to the first sale, and it does not appear, that he did. His consent to‘the redemption of the fir«t sal* and his promise to furnish a statement, did not change plaintiff's position, nor lure him into inaction until the delay for redemption had eixpired, as in the case of the Succession of Spotorno. It ms i,,ithout consideration and could oe withdrawn by him at any time. The most favorable conclusion for the plaintiff that we can draw from the vague and unsatisfactory testimony on this point is that the defendant consented to allow the plaintiff to redeem tb** second sale or so ranch of the property as he h?d the rioht, at that tim«, to redeem under the law. Whether by that consent he had agreed to extend the time within -which the plaintiff was bound to redeem the second sale is immaterial as we shall see hereafter. The fc.cts of this case are not similar to tho**'» in Succession of Spotorno vs Howcott, 119 La., 1032. In that case the Court found that Kowcott, in writing, ha$l recognized the right of plaintiff to redeem, and said that he would dispense with a regular t^nd^r, *»n<3 would let plaintiff know later what the amount required was; all this before the expiration of the period of redemption. The Court held that the effect of the letter wa.* to extend the delay for redemption..

II. Was the plaintiff notified by the tax collector that the property would be advertised for sale? The learned Judge of the District Court annulled both tax sales for the want of a legal notice. His reasons were rs follows:

"This is a suit to annul an alleged tax-title by which defendant clsi.n? to hold plaintiff's property situated in Jefferson Parish. The plaintiff alleges non service of the notice required by Article 233 of the Constitution. It appears that the only notice attempted to be served was by registered lotf.er freí the tax-collector to the tax debtor. This or t^ese registered letters were returned undeiiv«redy»nd¿ without investigating tbf kind' ofhotioe, It. la eertainr-that no kind TO served, ge ee-lrequired. Sha' "notlsa^ la made a condition precedent to a tax sale; banca I infer tba nullity of the alleged «ale hereln.Vnder tba Article In question the method of sorvlee may he- directed hy the Legislature; hut the formality of serving notice is fixed and must be compiled with, not abrogated by the Legislature. A self-operative provision of the Constitution cannot be changed or abrogated by the legislature. The defendant claims in recon-vention if the nullity is upheld his rights as provided in Article Constitution 233. He claims more; but is entitled to the price paid, all taxes and costs paid, with ten per cent per annum & c. This is figured by plaintiff at #72.58 and Was tnede.red prior to suit. Judgment annulling tax sales on paymfent of #72.58 and costs herein to follow against defendant".

Article 233 of the Constitution provides that;

"There shall be no forfeiture of property for the nonpayment of taxes, State, levee district, parochial, or municipal, but at the expiration of the year in which said taxes are due the collector shall, without suit, and after giving notice to the delinquent in the manner to be provided bjr law, advertise for sale in the official journal of the parish &c".

Section 50 of Act 170 of p 370 provides:

"That on the second day of January 1899 and each subsequent year, or as soon thereafter as possible, the tax collector or sheriff shall address to each tax-payer who has not paid all the taxes which have been assessed to him on immovable property, written -or orinted notice in the manner provided for in Section 51 that his taxes on immovable property must be paid within twenty days after the service or mailing of said notice, or that said property will ot «old according to law & c".

Section 51 próvidos:

"That the tax collector or Sheriff shall either deliver to each tax-payer in person or shall leave at his-residence or placa of business in the Parish of Orleans one of said notices, and a return or statement in writing of the mode of such service shall be made by the officer serving the same and be filed in the offi.ce of the tax-collector or sheriff and shall be received by the court» as prima facie evidence of notice. In the country parishes this notice shall be sent by registered mail. After the Sheriff shall have completed the mailing of the notices herein required, he shall /aalce out a proces-verbal, stating therein the names of delinquents so notified, their post-office address, brief description of the property, amount of taxes due, which proces-verbal shall be by him signed officially in the presence of two witnesses ana by hi a filed in the office of the Clerk of Court for record and pr?ssrvation. Said proces-verbal shall be received by thu Courts as evidence".

Section 52;

"That the tax-collector or Sheriff shall publish once a week for two weeks, in one newspaper published in his district or parish, if thers be one, or in the manner provided for judicial safes if there be none published in this parish, one general notice, substantial]y in the foregoing form, addressed to oil unknown ownc-rs, and non-residents whose post-office address is unknown of asses .ed immovable property situated in hi.s parish or district, in *"hich he shall describe th* property as described in tax roll. &c". The tax-collector’s act of sale to Abadic recite?Í "I made out and mailt'1 to said Joseph Tomsany by registered letter a notice in conformity with said Act No. 170 of 1898 & c".

The presumption is that this recital is true. Const.Art. 233; 37 A., 417; 47 A., 1605; 131 La., 541 (553).

Besides, it is ad~itt*d as to the tax of 1913,

"that on the 1st day of April 1914, a delinquent tax notice was mailed to Joseph Tomsany by registered mail to Crown Point, the address of said Tomanny last known, out that said notice was mailed back to the Sheriff and ex-officio tax-collector of s&id Parish unol^iméd";

the afi'ft* admission wats made aw to the notice for the tax of 1914,

In the case of Hoyle vs Southern Athletic Club, 48 A. 879 the Court said on p 883;

"It might well be that in point of fact no notices w*re actually received by any of *ch* parties nnd yet the sales could stand, for if th* as*?***•; i'.-nta w«re properly made and th«* tax-collector in giving the notices conformed to the requirements of the statute und of the law, it would not follow that fch^y would bo ineffectual oecausc they did not reach the parties th»?y wore intended bo reach. It frequently happens that citations *v'ds through service at the domicile ar« :isluid or are not handed to t'*t p *rron bo j« cited - none the less the citations - arc -re'l mode. Ago in, in matters of notice of dishonor of notes, if the requirements of a statute be followed, as to time, place, and mode of service, as for instance by placing a letter oroporly addressed and prepaid in the postoffice within the time fixed by law, it has been held that it is not necessary to prove that the letter was received and th=> t ^iscarring» would not prejudice the party giving notice. t^(Ve are therefore to inquire whether there be evidence before us going to show that notice was properly sent". See 51 A., 972 (979) In Baum vs Smith, 127 La., 1089 the Court sj^id on p 1091,

1092:

"Allowing him, however, the full benefit of his positive statement tkax he did not receive the notice, the fact remains that the notice was regularly mailed to him in the manner required by l.--,',r, rnd the ru-íc-tio-* is prAs<totsd whether, where all th& f or'ia] ities prescriusd by law have oeen observed in the proceedings for the «nforce.unt of the payment of delinquent taxes, the tax sale i* to o* set asids, simply becau-e th*. tax doctor is able or willir*c. to testify that as r. matter of fact he never received the delinquency notice . We think not". 144 La., 934.

The crs«j of Mc Crory in 130 La., 212 is not in conflict with these cases, because the Sheriff was informed of the tax-payer's correct addrés$ and yet failed to notify him.

But if these notices by registered letters addressed to the plaintiff under 8ection 51 can be considered insufficient, 'the defendant offered in evidence four copien of ’'The Jeffcr-on Democrat,w doted May 2d end 9th, 1914 rud May 8th md 15th, 1915 containing, in accordance with Section 52 of Act of 1898 quoted above, a "Special Notice to unknown own ero of i.naovpul& property in the Pariah of Jefferson", notifying them of their delinquency for taxes and notifying them that if thay were not p\id within twenty days the Tax Collsctor would sell the property assessed to pay the taxes; in the*« adv?.rtissn«*nts appear, in raised letters, the name of "Joseph To'msany" and the description of cue property claimed herein.

Thes« advertisements appear to us to meet the requirements of Section 52 at to the notice to be "addresi-esd to all unknown owners •-nd non-residents whose post-offico address is unknown" . The Sheriff had complied with Section 51 by mailing to the plaintiff a registered notice addressed to th* place where the property was situated, and where it was presumed the plaintiff had hie reticence, or place of business, or an a^&nt; uhe notice wan mailed back to him; the Sheriff for lack of better information, followed the course dicatud by Section 52; The evidence is that plaintiff was a non-resident.

3'ut the plaintiff objected to th**. introduction of these advertisements upon the ground that it wa*

"an attempt to vary the declaration in the tax deftds, to the effect that notice of delinquency was made by service of registered mail"•

We do not think that the objection was well mad*. The evidence did not vary or contradict the tax deed. It merely proved a service in addition to the one mentioned in the deed, and went to show that the notice required by law hc-d b * *n given.

In the case of Harvey vs Gulf States Co.,. 108 La., 550, the Court said on p 552;

"Plaintiffs objeet-d to the admission in evidence of the official written return of the officer who had served the notice, and also to parol showing the manner of th*: >-.rvice, on the ground t/st "the act of sale declares that S'-vice was made on Clarence J, Harvey and others, and d ^«ndrnt cannot contradict this declaration in that act". We think this evidence was admissible. The recital of the deed was an error, and such errors in Sheriff’s deeds may be shown by parol, 46 A., 1571; 35 A., 560; 36 A., 549; 12 A., 142; 41 A,, 15; 42 A., 918".

The cas* of th« Succession of Williams, 112 La., 1075 is not in conflict. In that case the aeed recited that the notic* had been served on tb« tax payer in person, or left at his residence or place of "business, and that it had bet*n addressed to Williams. The defendant attempted to show that the notice had Veen addressed to an * owner unknown” and that the property had been advertised and sold as such. The Court properly said that such evidence would make a different case from that presented by the deed and properly excluded the evidence.

In the case of Adams vs Basile, 35 A., 101, the Court said: °it may be that the service was good. It is the return which is bad. x x x In such a case the Sheriff would be authorized to make a proper return be?amendment or otherwise conforming with the facts and t^ie law. 21 A., 27; 10 M., 91; 2 R., 485; 8 R., 236; 3 N. S., 489; 5 La., 287”.

But the rules governing notices in tax matters do not partake of the strictness applicable to citations. Mohr. vs Marks, 39 A., 579; 108 La., 551.

In Webre vs Lutcher, 45 A., 574, the Court said:

”The question presented is whether or not the plaintiff was an unknown Owner of assessed immovable property? If so, it is not pretended that the notice by publication is not legal and valid, x x x If the tax payer fails in his duty in furnishing information as to his residence, he has himself to blame if he finds himself in the list of un-knovm owners of property, x x x He (the Sheriff) could not comply with Sec. 50 because he did not know the absent owner. He did not live in the parish and had ho agent there, therefore he could not make wither a personal or domiciliary service. He could not serve notice by mail because he did not know th4 absent owner's address. There was but one mode of making service, which was by publication, as prescribed, in Art. 210 of the Constitution end Sec. 51 of Act 96, for service on unknown owner of assessed immovable property. The plaintiff wqs to all intents and purposes and within th* meaning of Art. 210 of th'* Constitution and Act 96 of 1882 an unknown owner ~of th* property asse to J. M. Webre".

Th* J^ct of 1898 is broader than th* Act of 1882. Whil* the latter speaks only of ’’unknown owners”, th* former governs "non-residents whose post-office address is unknown" by th* same rules which apply to unknown owners; and plaintiff was a non-resi•dent whose post-hffic« address was unkn&wn.

III. Service of citation in this case was mad* on defendant on December 11th, 1917. Ths first sale to him was r*cord*d on June 26th 1914. More than three years therefore had elapsed "between th* date of the recordation of the tax d«*d and the filing of this suit, and under Artici* 233 of the Constitution prescription had accrued in favor of th* defendant as regards the first sale. Th* interpretation of that Article by th* Suprema Court is, that legal possession b£ tax titl* during three years is sufficient to base the prescription of three years in the absence of corporeal possession by the tax-debtor. 109 La., 641 (650, 657); 138 La., 398, 507.

IV. But, at the time of th* second adjudication to th* defendant, the plaintiff was owner of one undivided half of th* property and the def*ndant of the other undivided half. They wer* owners in common. In Williams vs Harrell, 132 La., 1 it was decided that

"a co-owner who purchases property held in common at a, sal* for taxes acquires no greater interest in the property than he held before, *xc*pt that he has a claim against •his‘co-owners for reimbursement for taxes and expenses paid by him",

quoting numerous authorities.

V. Defendant cannot recover for improvements on th* land.

"It is well settled that a co-proprictor cannot erect improvements on th# common property and compel th* other joint owner to contribute to pay for thr same, without the consent of the latter". 26 A., 255; 23 A., 502; 43 A., 867.

It is otherwise as to taxes paid by the co-proprietor.

It is therefore ordered that the judgment of the District Court herein be reversed and amended; and it is now ordered that there be judgment in favor of the plaintiff and against the defendant annulling and setting aside the sale made by the Sheriff to the defendant, Idhn D. Abadie, of the undivided half of a portion of the Ida Plantation more fully described in the act of sale dated August 26th, 1915 for the taxes of 1914 assessed in the name of Joseph Tomsany, registered on September 3d, 1915, and that the inscription ^hereof in Book 36 p 605 be cancelled; ¿Wv*'

It is further ordered that this judgment shall take effect only after the plaintiff herein shall ha-* reimbursed the defendant herein the price of/vsale and all taxes and costs paid with ten per cent per annum interest on the amount of the price and taxes paid from date of respective payments as provided by the constitution;

It is further ordered that in other respects the recon-V fln a 1 rl ee vi <-? <r> v-i + r\ A we i eof e/^

Judgwiant ravarsad and ámandad,

April 19th, 1920.