author: Charles F.Claiborne,Judge WIDDIAU A. BEIL. JUDGE.

text:
    Atlantic Paint Co. Vs John Merkel Jr.
    No.8869
    Charlo» F.Olaibome,Judge*
    October 30th 1922
    Judge Bell dissents for reasons on file.

   Atlantic Paint Co. Vs John Merkel Jr.

No.8869

Charles F.Claiborne,Judge

This is a suit for Two Hundred and Twenty Bight 62-100 dollars filed in the First City Court of the City of New Orleans under section 91 of the Constitution of 1921.

Tho defendant .'as cited at domicile.He filed an answer pleading a general denial.”Judgment was rendered against him on August island signed on August 19" 1922.

Dofendant was absent and unrepresented at ths trial. On Osp’ o-'her 7th 1022^A. copy of the judgment was served upon him sp- person.Having filed an answer he vías not entitled to notice oyen under article 0 P.E75 I!e was ^considered duly notified b^the judgment by tho fact of its being signed by the // jfu&ge. On September 14th 1922 the defsncUnt obtained an order for a suspensive appeal,and filed tho transcript in this Court, Tho plaintiff moved to dismiss tho appeal on the ground that it was taken too late,under tho provisions of Aot 128 of 1921 This act reads as follows:

^ That the manner and fora of proceedings before the City Courts of this State in cities having over one hundred thousand inhabitants,in cases where said Court has concurredt jurisdiction with District Courts of all suits for moneyed demands above one hundred dollars and now exceeding three hundred dollars,shall be governed by the general laws regulating proceedings before the District Court.Appeals shall he allowed and be returnable to the Court of Appeals,within ten days exclusive of Sundays from the rendition of the Judgment*

The same delay and limitation are prescribed by Artlele C.P.1133 except that the Code of Practice requires a "notifi- * oafcion "to the party cast which the act of 1921 omits.

Prom the date of the rendition of the judgment In this case and the signature thereof on August 19th 1988 more than " ten days " exclusive of Sunday elapsed,to September 14th when the appeal was taken.Indeed there were full twenty two legal days exclusive of Sundays.She ten days for appealing expired with September first.The law might be different if the .defendant had been entitled to a notice of Judgment.The delay foe'appealing had .expired when the notice of judgment was served on the defendant.Under the aot of 1981 we have nothing to do but to dismiss the 'appeal.The Court must dismiss ex-offioio an appeal taken after the time fixed by law." 11 1, 252-1R 60 89A435 — 34 A 318-129 La 638-18_Ct.App.74 No.8710 Ct.App 7 R.60 Our learned brother concedes that our conclusions would be correct if the act of 1981 was law.But he argues in an able opinion that this aot is unconstitutional.The point was not■ raised in this case not even in argument.The Supreme Court has decided that they will not consider the Constitutionality of an act when this issue was not raised» in the pleadings* 26 A 754 -33 A 1222-47 A 1689-108 La 152-44 La 805-114 La 847 125 La 59 and authorities there quoted.

We consider ourselves bound by those authorities and aot accordingly.

It is therefore ordered that the appeal herein be dismissed.

October 30”1982

ATLANTIC PAINT COMPANY versus JOHN MERKEL, JR.

NO. 8869.

OH MOTION ¶0 DISMISS

DISSENTING OPINION ty

WIDDIAU A. BEIL. JUDGE.

In this cause there was judgment upon open account rendered in the lower court in favor of plaintiff, for One Hundred and Twenty-Eight Dollars and Sixty-Two Cents ($128.62) from which defendant has appealed.

The record shows that domiciliary, not personal citation, was made upon the defendant,, who, in propria persona, pleaded a general denial to plaintiff's petition, and who was absent and unrepresented hy counsel at the trial of the cause. Judgment for plaintiff was rendered on August 18th, 1922, and signed August 19th, 1922. Appeal was granted September 14th, 1922, and made returnable to this Court on September 24th, 1922. The transcript was filed here September 25th, 1922.

The case is before us on motion to dismiss the appeal, for the reason that the appeal from the aforesaid judgment was not taken by defendant until September 14th, 1922, more than ten days, exclusive of Sundays, from the rendition of the said judgment. These facts as alleged in the motion to dismiss/ are not disputed, and from the record we find them true.

It is argued, however, by counsel for defendant and appellant, that the motion to dismiss should be denied for the reason that personal service of citation was not had upon the defendant; that he was not present or represented by counsel at the trial o-f this cause or at the rendition or signing of the judgment herein; that no notice of judgment had been served upon him, and that, therefore, no delays for appeal could run against him until service of notice of judgment, according to law, had been made upon him. In support of the above contentions, Art. C.P. 1131 and its various amendments are cited.

The law applicable to the facts as presented in this case is found in the Constitution of 1921, Art. VII,, Sections 90 and 91, and also in Act 128 of 1921.

Art, VII., Sec. 91 of the Constitution of 1921 provides that the City Courts for the City of Hew Orleans

"Shall have jurisdiction .concurrently with the Civil District Court of all suits for moneyed demands above $100.00 and not exceeding ;$300.00, that such cases shall be tried and the testimony and evidence therein shall be taken in the same manner as cases tried in the Civil District Court, and the appeal in the Court of Appeal shall be tried upon the original record thus made up and shall not be tried de novo." ************

In order to regulate the practice in the City Courts for the City of Hew Orleans, and to carry into effect the foregoing section of the Constitution .of 1921, the Legislature, at its extra session following the adoption of the new Constitution, passed Act 128 of 1921, which reads in part, as follows:

"Section 1. Be it Enacted, by the legislature of Louisiana, that the manner and form of proceedings before the City' Courts of this State in Cities having over one hundred thousand inhabitants, in eases where said Court has concurrent jurisdiction with District Counts of all suits for moneyed demands above one hundred dollars, shall be governed by the general laws regulating nroceedings before the District Courts, ********* Appeals shall be allowed, and be returnable to the Court of Appeals within ten days, exclusive of Sundays, from the rendition of- the judgment, ***********

Analyzing the force and effect which the Act just quoted would have upon procedure or practice in appeals from City Courts where the moneyed demand is above $100.00 and not exceeding $300.00, it is apparent that Art. C.P. 1131^and ids various amendments relating to proceedings before justices of the pea#* as well as before the City Courts of Hew Orleans, would be entirely abrogated and superseded by Act 128 of 1921, In so far as it might oonoern moneyed demands in amounts above mentioned».

Act 97 of 1916, amending Act 214 of 1914, has amended and re-enaoted Art. 0.5, 1101 to. read as follows!

"That no appeal from a judgment before a Justice of the Peace shall stay execution unless the said appeal be tricen within ten days after the judgment. If it has been pronounced in the-presence of the parties, or when the party cast was present, or represented by counsel at the trial, or within ten days after the notification of it, if it has been rendered on default of one of. the parties; provided, that no notification shall be necessary if personal service was had on the defendant. **** Judgment shall not be final until action by the Court upon -any motion for a new trial, which may have been made within the time now authorized by law or rules of Court."

If the above law - as is urged by oounsel for defendant and appellant - can be said to apply to the facts of this case now before us, it follows that the motion for appeal herein made must be dismissed, for the reason that defendant was not cited' personally nor was the judgment pronounced in the presence of the parties, nor was defendant present or Represented by counsel at the trial. However, if Act 128 of 1921 is a valid and aon-stitutional enactment of the legislature, its language providing, that "suits for moneyed demand above $100,00 and not exceeding $000.00, .shall ber governed by the general law regulating proceedings before the District Court," necessarily supersedes the provisions of Aot 97 of 1916, with the result that Art. C.P* 675, *US3 and not Art» C.P. 1101A shall govern appeals from the' City Courts in cases like the instant one, which is for a moneyed demand oyer $100.00.

Art. C.E, 575 and its various amendments provide in substance (with certain exceptions as to country parishes) that appeals from the judgments in the district Court must be taken within ten days, not including Sundays, after the judgment has been notified to the party cast in the suit, when such notice is. required -by law t,o he given, such .service not being necessary, however, (1) if a defendant oast has had personal service and. has filed his answer, or (2) if m judgment has been rendered in a ' - case after answer filed by the defendant or his counsel. Under these too contingencies, the law provides that the party cast shall he considered duly notified of the judgment hy the fact of its being signed hy the Judge.

In respect to the above provisions of Art.0.5. 575, it may also he said that if Act 128 of 1921 he valid and constitutional, the result would follow that Art. 575 is superseded hy the latter statute which now contains no condition whatsoever under which the ten days' delay for appeal shall fail to run from the date of rendition of judgment. If such he the effect of this recent statute, then the motion to dismiss the appeal herein taken must he granted. But Art. IV., Sec. 4, of the Constitution of 1921, contains, as have previous Constitutions, the following prohibition:

"RIUITATIOHS"
"Sec. 4: The legislature shall not pass any local or special law on the following specified subjects: '*'*#*■***** regulating the practice or jurisdiction of any Court, etc."

It is to he further noted that the very preamble of Act 128 of 1921, wherein its purpose is stated, makes the Act upon its face a local statute relating only to practice in the City Courts of ITew Orleans, and attempting to so regulate this practice against the specific prohibition of the Constitution as above quoted. It is true that the body of the Act would indicate an attempt to provide for the manner and form of proceedings before City Courts of the State in cities having over. 100,000 inhabitants, but the preamble itself, in plain, unambiguous language, declares that the purpose of the Act shall be: "To regulate the practice in the City Courts for the City of Hew Orleans, and to carry into effect Sections 90,91 and 92 of Art. VII. of the Constitution." This Article and its Sections appear in the Constitution, ‘pages 64 to 66, to relate exclusively to the "City Courts for the City of Hew Orleans."

This local or special lav/, in its attempt to regulate the practice or jurisdiction of any Court, is in direct disregard <Wk the prohibition set forth in Sec. 4 of Art. IV.

In this same article of the Constitution, it is to he further noted that Seo. 5 provides that "The legislature shall not indirectly enact special or local laws hy the partial repeal of a general law." Act 128 of 1921, having for its purpose, as directly expressed in the preamble, and hy its effect,as shown in the body of the Act, hy enacting a special or local law, to partially repeal the general lav/ found in the Code of Practice, relative to appeals, either in the District Courts or the City Courts, it must follow that in this respect another prohibition of the Constitution has been disregarded.

The Act in question provides that the manner and form of proceedings before City Courts of this State in cities having over 100,000 inhabitants, etc., shall be governed by the general laws regulating proceedings before the District Courts, and then follows a provision that "appeals shall be allowed and be returnable to the Court of Appeals, within t'en days, exclusive of Sundays, from the rendition of the judgment." ********

Prom this language, it is plain that the Act undertakes to change the general law to the extent of entirely eliminating any conditions appearing in such general law whereby the tfen days limit of appeal shall not in all cases govern, there being in both Art. C.P. 575 and Art. C.P. libl^certain conditions under which a ten days' delay for appeal shall not run until notification of judgment has been given. Thus it may be said that the prohibition of Sec. 5 of Art. IV. of the Constitution has also been disregarded. Again, if Act 128 of 1921 be a local statute, it is to be noted that such statute is violative of the provisions of Sec. 6 of Art.IV. of the Constitution in that it does not appear in the said Act that the intention to apply for Legislative enactment regarding 'this local law has been published, or that such notice by publication has been given.

For these various reasons the Act under discussion is patently unconstitutional. It might be noted, that the jurisprudence of the Supreme Court, as well as of this Court, haa- on several occasions pronounced, against the power of Courts . to declare "unconstitutional- a statutory law, when the unoonstitu-tionality.of. said, law Has'not been pleaded, hy the parties litigant, in the particular cause under consideration. People's Homestead v, Staub. 3 Orl. Appl., 101; State v. St. Romes, 26 La. Ann. 753; Hughes v. Board of Commissioners, 108 La. 152; Scovell v. St. Louis S.W. Ry. Co., 114 La. 847; State v. Michel, 125 La. 59; State v. Hennessey, 44 La. 805.

The doctrine, as above stated, is applicable, however,' to conditions.where the rights of the parties litigant alone are concerns'!. In th.e instant ease, while the ruling of this Court as to the constitutionality of the statute under consideration would naturally affect the rights of one or the other of the parties involved in the suit, the situation is presented where a greater and more important question is involved, to wit: the procedure in appeals from the City Courts over which this Court‘has appellate jurisdiction. For this latter reason, it is not only within the jurisdiction and power of this Appellate Court to determine, of its own motion, the constitutionality or not of the statute in question, hut it is our express duty, where the ■ statute in question is so patently violative of the fundamental law, to so declare it, though the,issue he not raised hy the litigants,- particularly when the result, as in this case, of disregarding the constitutionality of the law, would he to establish a different and confused method of procedure 'in tbe City Courts as between-oases tinder and those above $100.00. For these reasons, Act 128 of 1921 is violative of the provisions of the-Constitution of 1921 set forth in Art. IV. Seotionsv4,5 and 6 © X6 0 f a

It follows that this Court, in the matter- before us, cannot he governed hy the provisions for practice as s.et -forth in Act 128 of 1921; and since it appears from the record that the' defendant herein was absent- ¿t the trial of the - Y//33 cause,- it'is"plain,-under Art# C.P. 1131 and amendments to said articlef, that the delays for appeal cannot begin to run against him until notice of judgment has been served. The appeal herein taken to this Court, therefore, appears to have been taken .in time, and the motion to dismiss should be denied.

3?or the above reasons, I respectfully dissent to the majority opinion herein rendered.

October 30th, 1922


source: Caselaw Access Project

author: Dintelspiel; J

license: Public Domain

text:
    NO. 8877
    COURT OF APPEAL PARISH OF ORLEANS.
    JAMES A. GAUDET vs. JOHN BORDES.

   Dintelspiel; J

This Is a suit for possession.

Plaintiff, the owner of a certain oott&ge and stable together with the grounds adjoining thereto, situate in Jeffer-¥on Parish, complains that the premises in question were heretofore used and oooupied by the defendant under a verbal agreement and that defendant should use the same until notified to the oon-trary, after which he would oaase such use immediately. The further allegation ie made that the defendant for the use of the property during the time as your petition did not need the premises was to pay at the rate of- sixty dollars per month. Alleging that defendant beoame in default as to the payment of rent for the month of July and plaintiff being desirous of obtaining possession of the premises terminated the verbal understanding or agreement by giving to defendant on the 33rd day of August, a written notioe to vacate the premises within the five days allowed by law, and that more than five oalendar days have elapsed sinoe servioe of said notioe, and notwithstanding same, defendant fails and refuses to vacate.

Wherefore the prayer is that defendant be ordered to show oause on a day fixed, why he should not vacate the premises or in the alternative be ejeoted therefrom; and for all oosts and for general relief.

This petition was sworn to, and an order obtained, ordering defendant to show oause on the 13th day of September, 1933, why he should not vacate the premises described, or in the alternative be ejeoted therefrom. The order was signed by the Judge. Annexed to the order was the written notioe to vacate.

The answer of the defendant after pleading the general issues, goes on substantially averring that for months past he had oooupied said premises under a verbal lease with plaintiff, at a rate of sixty dollars a aontli, said lease ending on the last day of November, 1932, when defendant was to move into his own property and also procure a tenant for plaintiff; admits being in possession of the property by virtue of a verbal lease. Avers that this suit for possession is malioious and an effort to offset plaintiff's responsibility and liability to defendant by reason of having oaused him damages on said premises on or about August 23nd, 1923, when without notioe, part of said buildings were demolish'ed.

Wherefore he prays for judgment in his favor and that plaintiff's suit be dismissed, the verbal lease be reoognized and his right of oooupanoy of the premises in question at the rate of sixty dollars per month be maintained, and reserving his right to sue for damages.

On these issues the oase went to trial.

It was proven that the notioe required by law was given and served wunin the time stated in plaintiff's petition.

the testimony in this reoord, of plaintiff and his two witnesses,affirm and maintain the allegations of his petition; whilst on the other hand the testimony of the defendant asserts to the contrary.

The learned Judge of the District Court heard the testimony in this oase, and saw the witnesses, and therefore was in a better position to judge of the merits of this oase than we are; and a oareful examination of the testimony has convinced us that his judgment was oorreot. He ordered that the rule be made absolute and that defendant be given until the first of October 1933 in whioh to vacate the premises. From this judgment there was a suspensive appeal taken to this Court, and in this Court, in answer to the appeal herein taken, there is a prayer that the appeal being frivólous and without merit, hence- plaintiff is entitled to damages for a frivolous appeal, claiming the sum of Five Hundred Dollars.

Where, as in cases of this character, there is a controversy and allegations made under oath end denied, require .the judgment of Court in order to determine the issues between the parties, and there being no money demand set up, we are of the opinion that damages for a frivolous appeal will not be allowed, but we are further of the opinion that if plaintiff has suffered any damages he is entitled to be heard in a direct action and looking to that end we reserve the right of plaintiff to institute any proceeding whioh he may think best for his purpose.

Stewart vs. Levis Bros. 43 Ann. p. 40.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the Court aquo be and the same is hereby affirmed;

It is further ordered, adjudged and deoreed that plaintiff's right to sue in a direct action for such damages as he may think he is entitled to is reservedjand that defendant pay oosts of both courts, taxtfcfcKXMtifctoc

-Judgment affirmed-


author: Dinkelspiel; J.

text:
    No. 8878
    COURT OF APPEAL PARISH OF ORLEANS
    MRS. FRANCIS A. HARRELL VERSUS PERCY S. MANN.

   Dinkelspiel; J.

This suit is based on a lease, together with two rent notes of $75.00 each, being rent for months of January and February 1933, with a lien and privilege upon all the furniture and property contained in the leased premises'; an affidavit follows the petition claiming the «¡mount due, together with ten per cent attorney's fees, and that the petitioner fears that defendant will remove the furniture on Which Bhe has a, lien and privilege, out of the premises and thereby destroy the privilege.

The answer substantially admits the lease, the. rent, but. dlaims that plaintiff had no right to insist upon the rent being paid, because in a prior .suit in the Civ.il District Court between these same parties, which was an- eviction suit, the Judge in that suit in a judgment orders that through an agreement between the parties, the judgment in .that case, which is #1-40,489 of the docket of the Civil District Court, shall not go into eft-feet until February 38th, 1933 and. pleads that judgment in bar,.' because the proceedings in this case was entered a' day prior to the date named by the Judge; henoe was premature; and further in s reconvertional demand claims the sum of $300.00 as damages, baoe.use his good name had been injured, and that he suffered great mental, anguish and humiliation and that h.is business was interrupted and his home -life disturbed and broker up»

On the trial had in this case; due proof, was made of che fact that the rent of January 1933, $75.00 was past 'due dad the rent of February would not be due. .aco ording to the note in suit until the first of March. The lease amongst other things contained the provision; "That when any month's rent was due. end unpaid, that the whole amount of future rents became due1"-; and under this provision it is evident that the January rent note beo&ne having been due and unpaid, the February rerit/lHH(Xdue at the t'ifte Of the issuance of the writ of provisional seizure-» It- was further shown that defendant was on the eve and had partially removed hie furniture from the leased premises, when seeing the agent of the plaintiff, who was present at the time of the attempted removal, the furniture was taken from the wagon hack into the leased premises; and there was no denial of this fact hy the defendant on .the stand, and this in our opinion, together with other parts of this record, unnecessary to he mentioned, gave under the Codal provisions of our Statutes, the right of maintaining the writ' of provisional seizure.

The Judge of the Court a quo in rendering judgment in this case rendered judgment fox. the sum of |150»00, together with legal interest from February 28th, 1922 until paid, and ten p'sr oent of said principal and interest as attorney's fees, and he further ordered, that- the writ of provisional seizure be dismissed, and he further ordered that the reoonventional demand also be dismissed at the oo'St of plaintiff in reconvention»

In this judgment the Court erred»

For the reasons assigned, it is ordered, adjddged and deoreed that the judgment of -the Court aquo in so far as it rendered a judgment in favor of plaintiff, -Sire. Francis A, Harrell, an.d agáinat Percy S. Kama, in the sum of |150»00, with legal interest frisa February 28th, 1922, unt.il paid, and ten per oent of principal and interest as attorney’s fees, be affirmed; and in so far. as said judgment dismissed the writ of provisional seizure, ha annulled, reversed and 'set aside, and that there now be judgment in favor of plaintiff;' Mrs, Francis A. Harrell, and against the defendant, Percy S^'$6¿nn, ..and J. T. Prowell, Surety on the release bond -in. this oase, for the full sum of 8150*00 with legal interest thereon fxs from February 28th. 1922, and ten per cent attorney’s, fees on.'-prinolpax and interest, .and that the writ of provisional seizure be maintained.

And it is. f urther ordered that the J* judgment dismissing the y.ecpoventlonal demand of defendant be jiff irmed.

And it is further ordered that the defendant Peroy A. Mann, and J. T, Prowell,, surety on release bond, be condemned to pay costs of both Courts.

-Judgment aff irmed in part and reversed in part.


author: Charles F.Claiborne,Judge.

text:
    _# Opotowsky and Sons vs Jno W.Henderson,Appellant.
    No.8880
    Charles F.Claiborne,Judge.
    February 19th 1923

   Opotowsky and Sons vs Jno W.Henderson,Appellant.

No.8880

Charles F.Claiborne,Judge.

Plaintiff claims $152.15 balanoe due for goods sold and delivered.

Defendant failing to appear,there was judgment against him by default for1the amount claimed,with five per cent interest. The defendant has taken a suspensive appeal.

The plaintiff and appellee answered the appeal and prayed for ten per cent damages for frivolous appeal.C.P.907-890

No error in the judgment has been pointed out on Appeal and it appears to be frivolous and to have been taken for delay only.

In such cases,damages will be allowed. 1 H.D.101-1 L.D. 55-1 Taylor D.67-1 B.D. 52 -14 La 347- 16 La 565-569-17 A 77 30 A 400 -.

It is therefore ordered that the judgment herein be affirmed with ten per cent damages for a frivolous appeal.

Judgment affirmed with damages for frivolous appeal.

February 19th 1923.


author: By WIIIIASí'A. HERI, Judge.

text:
    JONAS RAUCH VS AMERICAN NATIONAL INSURANCE CO.
    NO. 8881
    COURT OF APPEAL PARISH OF ORLEANS
    WIRRIAMA. HERR, JUDGE.

    MAY 14, 1923.

   By WIIIIASí'A. HERI, Judge.

"Ibis is a.suit tor indemnity for loss of time‘under an accident insurance .policy. Plaintiff alleges that on or about July 13, 1921, .while covered bv uoliov of the defendant e’omnanv and while employed as a'night watchman at Newcomb College, he stumbled, and fell and was struok in the testicles by a plank; that though the injury was painful at the time, he. continued with his worm; that thereafter the glands became swollen and a rupture developed, compelling him to cease work during the early part of the month of April, 1922; that he was operated on at Touro Infirmary for said trouble in the month of May, 1922, and was totally disabled for work during the months of April, May and June, 1922. Upon these allegations he seeks indemnity from defendant .in the sum of |40.00 per month for three months, or a total amount of $120.00.

Defendant pleads exception of no cause of action, and further answering, admits plaintiff's insurance under the policy sued upon, but denies liability. No evidence appears 'to have been taken on the trial in the lower court nor has any reason Dean given for Judgment in favor of plaintiff, dismissing defendant's suit.

Upon the 'original hearing on appeal by only one of the Judges of this court, the judgment appealed from was reversed and plaintiff was awarded the amount prayed for.. Defendant has now been granted a re-hearing .and the matter has been re-argued and submitted-to this court sitting en pane.

It is contended by counsel "for defendant that plaintiff's petition does not support a cause of action in .that the petition recites that a period of nine months intervened between the date of the acoident and the resultant disability and that, consequently, plaintiff was not disablea — "from the date of the aocddent — " t fact necessary -to recovers under the terms of the polioy. The clause of the polioy upon which this action for monthly indemnity for total loss'of time'is predicated reads as follows:

There is no ambiguity whatever in the language of the aóo.ve-quoted provisions of the policy. The words therein contained need no judicial construction to plainly indicate the clear intention of both parties to the contract, that such indemnity should be due the insured when such injury alone shall have wholly and continuously disabled him, etc., "from the date of the accident," and from no other time. Surely it cannot be said under such a clause in the policy, considered with plaintiff's own admissions and averments iii the petition, that he has set up by the pleadings any cause of action under whioh he may hope to recover. This court in the case of Heymann v. Continental Casualty Company, (Ho. 7806 Orleans Appeal) was affirmed by the Supreme Court of Louisiana (147 La., 1077) in our refusal to follow the judgment of the district court, vhieh 'extended or amplified the plain provisions of a health insurance rider attached •to a life and accident policy. The same principle therein recognized was again approved by the Supreme Court in the case of Feltel v. Fidelity & Casualty Company, 147 La., 52, where the court ruled, though the interval between the accident and the resultant disability was but tnirteen days, as follows:

"It will be noted that by the express terms of this policy the *** disability insured against must be 'immediate' after the accident.
"An exception of no cause of action was filed, based on the ground that the petition does not allege that the disability followed the accident immediately ***.
"This exception was overruled.
"It should have been sustained."

In the case of Robinson v. Masonic Protective Assn., 87 Vt. 138. 88 Atl. 531, 47 L.R.A. (N.S.) 924, the Supreme Court of Vermont has construed and given what might be considered as the only reasonable construction to a clause identical with that now under consideration.. It uvas there said:

"We think the words 'date of the accident,'■as used in that clause, were intended to mean total disability from the day of the accident, reckoned from the time of the accident,' that is, within 24 hours .thereafter."

We have carefully examined the authorities of Meyer v. Insurance Co., 41 Ann., 1007, and also Planters lumber Co. v. Frankfort Ins. Co,, cited by counsel for appellant, but cannot find that the facts in either of these oases or the principles of law therein announced are in any manner applicable to the instant case. After the re-hearing of this oase by the whole court, we are of the opinion that the exception of no cause of action herein filed Is well pleaded and should be maintained.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the former judgment of this court be recalled and set asiue, and that the judgment appealed from be and the same hereby is affirmed at plaintiff's costs in both courts.

JUDGMENT AFFIRMED.

MAY 14, 1923.


text:
    Ernest Vicknair and Al vs A.T.Perrilloux,Appellant.
    No.8887
    Charles F.Claiborne,Judge.
    May 28th 1923.

   Ernest Vicknair Jr and Al vs A.T.Perrilloux,Appellant.

No.8887

Charles F.Claiborne,Judge.

^ ** ' This^a, damage suit against defendant for obstructing the drainage of plaintiffs' lands,and for recognition of'their right of drainage.

The plaintiffs,nine in number,allege that they are owners of portions of ground forming the front part of a traot of land,and that^by contract and by operation of lawythey are entitled to the servitude of drain over the lands of.the defendant situated below.They further allege that tíüe defendant ha ^denied this right of drainage,and haá^obstruoted the drainage to such an extent as to pause them damage.

The defendant in the lower. Court denied this right of drainage,but in this Court admitted it.The only, question is one ofl damages.These must be restricted to, compensatory damages. He further averred that if the lands of the plaintiffs have been overflowed or damaged,that it was not caused by any fault on the part of defendant,but by the fault of plaintiffs due to the lack of cross drains on their lands to carry off the water which accumulated thereon and which could not reach the main ditch running from the river to the woods.

There was Judgment of nonsuit as regards five of the plaintiffs.

There was Judgment for. the remaining four recognizing their right of servitude and the obligations of the defendant thereunder and for $100 damages in favor of each plaintiff.The defendant has appealed.

The ditch in controversy leads from the river, extends about two acres from the public road,thence going East about an acre and a quarter,thence running on to the rear down to the woods.The evidence 4s that the upper part of that ditch has not been dug out at all for several years,and that trees are growing in it;the culvert under the railroad track is mas^Cd down,and the water cannot go through; a witness testifies that he circulated a list to obtain subscriptions to dig out the ditch;all signed up except the defendant;but he consented to allow them to digjge ditch; they put a man on the job,but-the defendant stopptei him ;when the ditch was maintained there Vías no water in front;now the water stays in frontjwitness oan raise no garden;'property is depreciated in value,witness has suffered damages of |100 a year for five years past;when it rains the water cannot go into the ditch,it oovers all the land; if the canal on Perilloux land was dug out the water would run off of the front;as it is now,after a big rain,water remains on the ground five or six days until the sun evaporates it ;the the plaintiffs employed a man to dig outAcanal on defendants' land; defendant prohibited them from doing it;there was a time when cane was raised on that property;but now there would be trouble in raising ducks there;witness had to take his horse out of his yard on account of the water,ten photographs of as many places show the lands under water;the drainage five years ago was good;it has grown worse every year;chickens and hogs have died,drowned;all property has lost value owing to condition's; if the ditch ras dug out there -would be no water in front; everything planted there is ruined by the water;the water frou the ditch runs into the cross ditches;the water stays under the houses;Ur Borne,the former owner of the land in the rear annually dug out the canal that leads back into which all the properties drain;the drainage was then fine;the defendant dug out the oanal once nine years ago;never dug it out sincejhe has dammed it up with planks nailed to a post.

The question involved is only ones of fact.We are satisfied from the voluminous testimony and evidence and from h the law that the plaintiffs had the right of drain as claimed hy them and that the defendant not only refused to maintain the oanal in a fit condition to serve the purpose of drainage but actually denied the right of drainage and took steps to prevent it.We are also of opinion that his attitude in the matter has caused plaintiffs annoyance and damage,and has put them to the expense of filiiig this suit and that the judgment for flOO damages each in favor of the four successful plaintiffs is correct.The defendant .did not file a plea of prescription to the demand for five years damage.

It is therefore ordered that the judgment herein be affirmed at the cost of the defendant and appellant.

Judgment affirmed.

May 28th 1923


author: BY: hlELIAU -1. 5311,,. JUDG3:

text:
    CONSOLIDATED FUEL COMPANY, INC. versus PUBLIC BELT RAILROAD COMMISSION
    NO. 8889
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL , 'JUDGE;
    December 11, 1922.

   BY: hlELIAU -1. 5311,,. JUDG3:

OR ilOTIOR go BI3LIISS ¿BR3ÁL.

Motion is made by appellee to dismiss the 'appeal herein taken, upon the contention that no citation of appeal was issued to, or served upon, the appellee, and that this omission is attributable to the appellant.

Vie find from the record that on the 19th day of September, 192", the trial court rendered Judgment dissolving a temporary injunction obtained by the plaintiff against the defendant and appellee herein. On September 22, 1922, the plaintiff and appellant petitioned the court for suspensive appeal from said judgment, and prayed that citation of appeal be made upon the defendant through its proper officers, the appeal being made returnable to this court on October 20, 1922. From these dates, it is evident that the appeal was made in vacation, and therefore should have been taken, as it was, by petition and citation rather than by motion, all of which was done in accordance with the law. ! S L ¿ f} /2-J £*-- /

It appears from the written motion to dismiss appeal filed in this court November 9, 1922, that the allegation is made that defendant and appellee has not been served with a citation of appeal, and that said failure was entirely due to the fault and negligence of plaintiff and appellant, in that appellant failed to order or pay for a copy of petition of sp-péal or order of citation of appeal. In support of this fact, there is ynnered to the motion for appeal v/hat is termed a "detailed list of all docket entries in chronological order" of the docket of the Civil District Court in relation to this cause, under filing number 145524. The certificate of the clerk in respect to this docket reads as follows:

"I hereby certify that the above is a true and correct copy of all docket entries in the above numbered and entitled cause.
fSigned) F.S.Buckley, Deputy Clerk."

Heither from the above certificate nor from any other source are we advised affirmatively that the plaintiff and appellant herein failed to pay in the clerk's office in the Civil District Court,if requested to do so, such costs as were necessary for the issuance of a copy of petition of appeal, the order thereon, or the copy of the citation of appeal. 'He cannot conclude from the record before us that the failure to issue these necessary documents or to serve the same upon the defendant and appellee herein was due to any fault of the plaintiff and appellant. ^rom a long line of jurisprudence consistent with reason and equity, it has been well established that an appellant cannot be prejudiced by the failure of the clerk of court to issue citation of appeal, unless it appears that the omission is attributable to the appellant, and where the matter is left in doubt as to Whether the alleged fault for failure of citation is that of the appellant, the appeal taken will not be dismissed on that ground, for it must be affirmatively proven that the fault is that of the appellant or his counsel.

Ho other authority for this ruling need be cited than that so clearly set forth in the case of Gagneaux v. Desonier, 109 La., p.460. In this case, as in that, the motion to dismiss will be denied, and proper time given to the appellant within which to obviate the defect by having a copy of the petition of appeal and order thereon, and the citation of appeal, duly served as required by law. In such a case as the one now before us, the practice should prevail and orders remedial should be issued/as was done in the case above cited, and as finds approval in the more recent case of Toca v. Rogas, 152 La. p. - - (95 Sou.,p.108). See also, Taylor v. Allen, 151 La. p. — (91 Sou. p. 635); 144 La. 282; 115 La. 432; 113 La. 787; 37 Ann.701; 55 Ann. 455; 32 Ann. 655.

upon examination of the authorities cited by mover and appellee herein, Succession of LeSage, 112 La.,857; McCutcheon et al. v. Hudson, 152 la. 177, we find that these authorities are not applicable to the facts before us, in both of said oases the prayer for service and citation of appeal having been omitted - facts ijuite contrary to those in the instant case- - where the petition of appeal was predicated upon the prayer and order for citation of appeal.

It is therefore ordered that the motion to dismiss the appeal for want of citation of appeal he denied, and that this cause he continued, to the end that citation he issued and he served upon- the appellee, and that fifteen days' time from the date of this order he granted the appellant for this purpose.

UOIIOff FOR ARPEAS DISMISSED.

December 11, 1922.


author: By WllEIAM A. BEIR, Judge.

text:
    WALTER TURLEY ET ALS VS MR. & MRS. BURNELL H. GOINS
    NO. 8890
    COURT OF APPEAL PARISH OF ORLEANS
    WIIIIAM A. BEES, JUDOS
    FEBRUARY 19, 1923.

   By WllEIAM A. BEIR, Judge.

This is a suit upon, an open account for groceries alleged to have teen sold and delivered by plaintiffs to defendants in ¡he sum of $281.39. There was judgment against one of the defendants (¿k- — in the trial court for the full amount claimed, suit as against his fe having Been dismissed. Appellees have not prayed for any amendment of the judgment, from which, only the defendant cast,has appealed.

The record does not disclose any rulings hy the trial oourt upon the exceptions of vagueness, misjoinder and no cause of action, all of which exceptions are hereby overruled, the only serious defense being that of payment, which necessarily renders the aforesaid exceptions frivolous and inconsistent.

Appellants testimony is to the effect that after some dispute between him and plaintiffs concerning the correctness of the bill, it was finally agreed between them that the amount due was only $97.00, and that he ultimately paid this amount by a check directly given to plaintiff for the sum of $6.00, and by a cash payment of $26.00, followed by certain other cash payments of $67.00, the latter having been made from time to time to one of plaintiffs' ag-^i£oj^rtrThav ents or collectors. The total amount of groceries sold,appear to have been $301.39, against vhich plaintiffs swear there was paid the sum of $6.00 in cash and $26.00 by check, or a total oredit of $30.00, leaving a balance due of $281.39. Ho checks of any kind have been produced by appellant to *ow these payments,.and when asked by the Court if receipts were given by either plaintiffs or their agent for payments on account, he answers "Yes," olaiming, however, that said receipts were burned. In the next breath he denies that any receipts were given.

Under such, and no better evidence than this, it is con-elusive that appellant has wholly failed to establish with certainty, as the law requires him to do, the plea of payment herein urged.

II IS, THEREFORE, ORDERED, ADJUDGED AID DECHEED that the judgment herein appealed from he and the same hereby is affirmed at defendant’s costs in both courts.

JUDGMEIT AFFIRMED

FEBRUARY 19 , 1983.


author: Charles F.Claiborne,Judge. "’illia:.: a. bell, judge

text:
    Lonzo Brooks, vs Board of Commissioners of the Port of New Orleans.Appellant.
    No.8891
    Charles F.Claiborne,Judge.
    April 2nd 1923.

   Lonzo Brooks vs Board of Commissioners of the Port of New Orleans,Appellant.

No.8891

Charles F.Claiborne,Judge.

This is a suit for $4968 under the Employer’s Liability Act.

The plaintiff averred that for five years,more or less,preceding April 1921 he had been employed by the defendant, generally known as the Dock Board,as a laborer at the wages of 40 cents aeUiour for nine hours each day^making S3.60 a day, and |21.60 a w.eek;that in the month of April 1921 he was working at the Industrial Canal;that in the course of his employment he fell from a plankway erected over the Canal and was precipitated to the bottom of the Canal,a distance of eleven feet; that by said fall he broke six ribs and was otherwise badly hurt;that he was taken to the Charity Hospital where he remained for two weeks;that after leaving the Hospital he was treated at his home by Dr Breaux for a period of four months and a half; that for the five months during which he was under treatment he received half pay from the Dock Board or $216-; that after these five months he tried to work without avail;that his injuries have produued permanent total disability to do work of any kind and have oaused permanent blindness of his left eye , Plaintiff prayed for sixty per cent of.$21.60 per week for a total of 400 weeks,or for $5184 subject to a credit of $268 or $4968 with five per cent per annum interest from judicial demand till paid.

The defendant admitted that the■plaintiff,at the time of the accident to him,was employed at the wages alleged by him;that he was treated by Dr Breaux,the defendant's physi-oiansthat he was discharged by the physician,and told to go baok to work;that he returned tó work,but came late and made no effort to work and was finally discharged; and it denied all the other allegations of the petition.

There was judgment for the plaintiff for compensation at the rate of $12.96 per week payable weekly for 400 weeks beginning April 1st 1921 ,less a credit of $216 . The defendant appealed.

The contention of the defendant is that the incapacity for work of the plaintiff arose from two causes having no connection with the accident to him l

First; Senile changes incapacitating him from work,as he was seventy years old at the' time,and

Second: Total blindness of the left eye due to glaucoma, having no casual relationship with his fall.

The evidence is that prior to his accident the plaintiff was employed as a laborer on the Industrial Canal handling and lifting timber,rolling dirt,and doing other manual labor.A fellow-laborer thus described him:" Well,at that time that old gentleman was weighing about 196 pounds,good and heavy and he could get around as good as some of these young fellows", The same witness testifies:" Well his ability now,compared to’ the time before he' got hurt,he is no more than a child now tc what he was,because he couldn't give no man an honest day's work now,to save fels life."There is no contradiction of that testimony; on the contrary it is corroborated throughout.

Another colored witness says that since $e was.hurt his condition has changed powerfully-he cant stand no work."

Dr Randolph Lyons,who was appointed by the Court, to examine the plaintiff says,as a part of his report;

" His fall is therefore only indirectly responsible for his present disability xxx But the shock might liave accelerated the condition which was due to aome in the course of time It brought on a senile condition which might not have occurred immediately.I mean by that he might have continued to work for several months,or probably a year,had this shock not occurred.

The snook simply brought on the senile changes which would make it practically impossible for him to work any more. In other words,the man was able to work until he got this shock, and while the injury was not a severe injury,ho was unable to do any work thereafter m The fact that ho was able to work, and worked oontinnously SeBore the fall,and the fact that the changes which he showed at the examination occurred or were present after the fall,leads me to believe that the fall,or shook as a result of the fatl,had brought on the condition of marked senility.xxx I think it ( the accident ) is responsible for the present condition in this manner,that if it had not occurred,he might still be working now with the same job that he had;but his physical condition showed that he could not work oontinnously for any length of time."

The plaintiff was not blind of one eye or did no know he was blind,prior to the accident.He ascertained it only many months after.Glancoma was the cause of the loss of his oyeJbut it had no casual connection with his fall. Whether it had or not,is not necessary to determine since' Dr Xyons'opinion as to plaintiff’s ability to work and the effect of the fall is based upon tne plaintiff’s physical condition independently of his sense of sight.

The /law of the oaB^^a^^t^he^i^irait^s^nd^^.^^. diseases with which the employee may have been,afflicted do - «not affect his right of recovery.The test is,did the aGcidént i bring about the condition of disability which it is th& iftteri-. ■ tion of the Workmen's Compensation Aot to relieve t If it did ' i .i ' 'the employer is liable.

Our Supreme Court in Behan vs Honor Co. 143 La 348 said; " The fact that an employee was-already afflicted with a' dormant disease that might some day have produced physioal disability is no,reason why the employee should not be allowed compensation under the Workmen's Compensation Act for the injury which.added to the disease,superinduced physical disa-I bility-Also 147 La 865,Advance Sheets of C.J. No.60 p.76 . f

The schedule of payments under Compensation Act No.20 of 1914 is fixed by Section 8 (d) P.51 as follows:

"For injury producing permanent total disability to do work of any character,fifty per centum of the average weekly wages,but not more than $10,nor less than $3 per week fcr a period nor exceeding 400 weeks ."

The same compensation is repeated in Act 243 of «48 1915 (e.) p.515 .

Section 8 S 1 p.53 of Act 38 of 1918 again amends these acts.

ACt 247 of 1920 p.467 is the law of this case.

Sec 8 S 1 ( ") reads as follows :For xxx any injury producing permanent total disability to do work of any 'reasonable character,sixty per centum of wages during the period of disability,not however,beyond 400 weeks."

Under this paragraph the Judgment appealed from allowed the plaintiff 60 per cent of his weekly wages or $12.96 during 400 weeks.

The defendant argues that the Judgment should be reduoed to 30U weeks under the following paragraph 0 which reads as follows :

" For injury producing partial disability to do work of any reasonable character,sixty per oebt of difference between wages at the time of the injury,and wages which the injured employee is able to earn thereafter during the period of disability,not however beyond 300 weeks."

The evidence satisfies us that plaintiff's disabll-r; ity is of a " permanent total" character and not only partial.

An injury rendering the "ability of the employee to do any renumerativo labor more than doubtful constitutes, permanent total disability within the Workmen's Compensation act -146 La 383 .

" Where one loses his only eye and it does not appear that he is able to do remunerative work of any reasonable character,the disability will be considered to tal and he will be allowed compensation as for permanent total disability." 151 La 59 (62 ) .

But even then the record does not show what was the difference between plaintiff's wage earning capacity before and after the accident,and we are not able to make a computation under the law.145 La 829 .

The defendant has answered the appeal by praying H for interest at five per cent on each past due payment from the time the same became due."He is entitled to the amendment under Article C.C.1938 (1932) which provides:

"■ All debts shall bear interest at the rate of five per centum per annum from the time they become due,unless otherwise stipulated,"

It is therefore ordered that the judgment of the District Court be affirmed with five per cent per annum interest on each past due payment from the time the same became due,and that defendants pay costs in both Courts.

Judgment affirmed with interest,

April 2nd 1923.

LONZO BROOKS vs. BOARD OF COMMISSIONERS OF THE PORT OF NEW ORLEANS.

NO. 8891.

COURT OF APPEAL PARISH OF ORLEANS.

On Motion of Appellee to Dismiss Appeal

"’illia:.: a. bell, judge

Appellee troves to dismiss the appeal herein taken by-appellant on the ground that the order of appeal was not signed by the Judge of the Trial Court having authority or jurisdiction to grant said order of appeal. The records shows that the judgment appealed from was rendered by the judge of Division "P" of the District Court for the Parish of Orleans which judge was duly appointed to act for and in place of the judge of Division ."C" of said District Court, all in compliance with two certain orders of the Supreme Court of Louisiana dated and reading as follows:

November 4, 1921.

"It having been made known to this Court that the Honorable E. K. Skinner, Judge of Division "C", has owing to ill-health, applied for a leave of absence for sixty days; it is ordered that the Honorable Percy Saint, Judge of Division "F" of the Civil District Court be and he is hei'eby assigned to take charge of Division "C" of the Civil District Court in place and stead of the Honorable E. R. Skinner and to try and determine all matters end causes allotted to this division according to law and until further orders of this Honorable Court".

June £3, 1922.

"It is ordered that for the proper dispatch of the business of the said Civil District Court for the Parish of Orleans that all the cases that shall be pending before Division "C" of the Civil District Court for the Parish of Orleans on the 1st. day of August, 1922, and which have been tried in whole or in part and which are still undecided, or the judgment rendered therein unexecuted shall he assigned to Bivision "F" for full trial and for execution of judgment rendered".-

It is contended that the order granting the appeal herein having been signed by the Judge of Division "C" when the cause had already been transferred to Division "F" and to the Judge presiding over the said latter Division of the said Court, that the said order was null and void and of no effect with the result that no order of appeal has been legally entered and that therefore the appeal herein taken is also null and void and should accordingly be dismissed.

Rule eight of the Civil District Court for the Parish of Orleans revised, adopted and effective from August 16, 1921 reads as follows:

Section 4. In case of absence or disability of the Judge to whose division a cause has been allotted, or in case of vacancy in his office, any other Judge of the Court shall be empowered to act in said cause as fully as if it had been originally allotted to the division over which he presides,' runtil the absenoe or disability shall have ceased, or the vacancy shall have been filled.

Even though there were no such rule as just above quoted and even though under the Constitution of 1921 the Civil District Court for the Parish of Orleans might be said not to have authority to adopt such rule, we are satisfied upon the authority cited below, that there is no merit in the motion herein made for the dismissal of the appeal. It has been held that where a Judge of a District Court of the Parish of Orleans is absent, another District Judge of the Parish can grant an appeal from a judgment rendered by the absent Judge.

BOLDEN v. BARNES, 118 La. 274; BRIGOT v. BRIGOT, 49 La. Ann. 1442; AUSTIN v. SCOVILL, 34 La. Ann. 484; BUISSON v. LAZARUS, 33 La. Ann. 1434; DE ST. ROMES v. LEVEE STEAM & CO., 31 La. Ann. 224.

MOTION TO DISMISS APPEAD IS DENIED.

ríinúajy .22, 1923.


author: Dinkelspisl; J.

text:
    NO. 8892
    COURT OF APPEAL PARISH OF ORLEANS
    THE AMERICAN PAINT STORES versus H. SCHILL.

   Dinkelspisl; J.

Plaintiff institutes this suit alleging the defendant is" indebted to them in the am of ¡$159.16, for goods sold and delivered to defendant, and an itemized statement tf accounts is. annexed to the petition

Defendant* Defendant's only epoe^rence, is prsying on motion that plaintiff furnish a bond for costs in the sum of ten dollars, which bond w&s furnished in due course.

There is no evidence exhibited or filed in this record-, but we have the judgment rendered by the Court, which states*

"Defendant failing to appear and answer, and the legal delays in which to answer having lapsed, s.nd plaintiff making due proof of' olslm,

It is ordered, adjudged snd ddoreed, thst plaintiff have judgment and recover from defendant, E. Sohill, in the sum of $159.16, with legcl interest from judicial, demand, and costs. Judgment rendered Oct. 5, 1932, signed Oct. 6,, 1933.

Hy, Henshaw, Judge."

It has b*en frequently decided in cases of similar nature, thst "In the achantad absence of proof, when a judgment was rendered, our courts will give the same effect to the judgment that would be given when like demand is set up in our oourts."

13 Ann. 394, McFerland vs. White.

There are numerous deoisions by our Supreme Court to the same effect.

•A money judgment rendered by A Court of original jurisdiction is oonolusivé as to its verity.

Where for the first time in the brief filed by plaintiff's counsel, but not prayed for in this Court as required by its rules and the laws governing practice for damage for frivllous appeal, same will not be allowed.

For the reason? assigned, it is ordered, adjudged and decreed, that the judgment of the- Court aquo he and the same is hereby affirmed, defendant .to pay'costs of .both'courts.

Feb. 10, 1923.

Judgment affirmed


author: Dink el spiel; J»

text:
    NO. 8895.
    COURT OF APPEAL PARISH OF ORLEANS
    CATHERINE GERMANN versus F. W. KELLER

   Dink el spiel; J»

This is a suit for rent. A provisional seizure was issued and the contents of the property, 1133 Beronne Street seized for two months rent end the further ol&im, counsel's fees, together with interest, costs and charges and other expenses. The amount involved was rents for the months of August and September, Sixty cellars per month.

The answer asserts that it had always been customary for defendant to pay rent in arrears and that the plaintiff obtained his writ of provisional seizure without first properly notifying defendant that rent was to be actually paid in the future.

SSbxx Under the oontract of les.se in this case, independent of the ordinery terms usually used in the execution of a contract, there appears this: "Failure to strictly and promptly enforce these conditions shs.ll not operate as a waiver of lessor's rights, lessor expressly reserving the right to. always enforce prompt payment of rent or cancel this lease regardless of any indulgences or extensions previously granted. Failure to comply with any conditions or obligations of this lease will make lessee liable for sny damage sustained by lessor."

From the testimony.in this case it appears that the defendant from time to time was backward in.the payment of his rent, in-other words the rent notes became due on the end of each and every month and were payable at plaintiffs house, but instead of being paid there it was customary for the plaintiff to visit de?» fendant at his pl-aee of business and' then at timee when defendant apparently would claim indulgence for a short period sometimes for • a few days and sometimes for a little longer time; plaintiff protested but-on promise of defendant to’pay'would gr&ht these re-maésts .but' without Sn any way waiving the rights that she had under, the lease-as heretofore quoted and defendant's contention that On Jfrequent oocassipns these; extensions, were;.'granted, does not .h'eUb^fciá.casev -The-ponditióna- of 'the'lease' itself as quoted gives that right, -to plaintiff»

March 5, 1923.

The; "authorities quoted* in both plaintiff s.E-nd defend--pht'-'a'briefs-would :be applioabl^ in this case,' Wit thp lease itself its v.etjf/tayms avoids the.'.'indulgerioe claimed'by defendant in-this-; pase, -'so -the pase of Brunning versus Grlnnage. 4th Ct. of App. 433, and Bacas vs. Mandot, 3rd Ct. of App. 234 are therefore net in point and, cannot.help defendant's ease*.

In .this Court plaintiff ha's ashed for damages for f.riv-ilóus- appeal. We do not-'consider that sne is entitled to -same for, ,the\reason .this .was. a .very spirited, oonte.st over the question as'to the extension of.'.time.-and-we .are', satisfied from reading the testimony and-.from-all;the.- circumstances surrounding, tnat derena-int .believed that he had a ve,lid defense and therefore plaintiff is. hot entitled to-damages-as prayed for»

For the reasons- assigned it is ordered, adjudged and deoreed, that the judgment, of- the Court aquo be and the same- is hereby affirmed^ ..posts of both Courts to oe paid; by defendant,,

-Judgment hffirmed-


author: By WILLIAM A. BELL, Judge.

text:
    ELIJAH PINE VS TAFT A. HAIK
    NO. 9898
    COURT OF APPEAL PARISH OF ORLEANS
    WIDDIAH A. BBDD, JUDGE
    FEBRUARY 19, 1923.

   By WILLIAM A. BELL, Judge.

This is a suit for damages which plaintiff claims to have suffered to the extent of $260.00 for injury to his horse and huggy arising from a collision with defendant's automobile. The trial Court found for the plaintiff in the sum of $166.00, from vfcich judgment defendant has appealed.

The accident occurred on the wood-side of Burgundy Street, about 40 feet from the corner of Burgundy and St. Ferdinand Streets, in this City. It appears that about 8:30 o'clock on the night of April 29, 1928, while plaintiff's buggy and horse were standing at the above locality and during a heavy rainstorm, defendant's automobile struok the buggy on its rear left side, completely destroying the rear left wheel. The evidence is conflicting as to the nature or extent of damages to the horse, and the judgment of the trial Court does not show, except inferentially from the amount awarded, that the Court found both the animal and the buggy to have been injured. The horse and buggy wereeach valued by plaintiff at $125.00, while the judgment, as above stated, was for $166.00. The plaintiff and one of his witnesses are the only parties who testified that the horse was injured, the plaintiff swearing that one of the horse's legs was injured and that he was never able to use the horse from the time of the accident until its death four months thereafter. The plaintiff was not in his buggy when the accident occurred, but had taken shelter under a gallery or shed, to the post of which he had tied his horse. We are satisfied from the evidence that there was no light on the rear of the buggy. There was considerable argument before us over the evidence concerning the lantern on the dash-board of plaintiff's buggy and whether same was lighted at the moment of the accident or extinguished by either the rain or by tho impact of tho oolliaeion. Tho determination of these questions is immaterial for the reason that no traffic ordinances have been pleaded or offered by either litigant, and for the farther reason that we are convinced from a careful ex** amlnatlon of the entire record that the place- of the aooident mas well lighted by the publio or manioipal electric light shewn to have been homing near the place and at the time of the aooi-dent. We also find that both headlights on defendant's automobile were burning. Defendant testifies that eren-under these conditions he did not see the buggy at any time until his oar collided with it. and that he was not going more than eight miles an hour when approaching the buggy, under all these circumstances and notwithstanding that there was a henry, rain-stem which might hare partially obscured his eutlesk, we are of the eplnlon that the defendant oould and should.hare avoided the aooident.

There is evidence in the record to the effeot that the total repairs to plaintiff's buggy would oost him §00.00. He has net claimed nor proven any damage for deprivation of its uso, and we think this amount should be allowed him for repairs. We do net think, however, from the nature of the evidence before us that plaintiff has satisfactorily proven that the aooident resulted in either injury to his horse or that it ultimately caused the animal's death. Plaintiff first swears, in describing the aooident, that the collision with his buggy threw the horse en. the curbing and that he ran to the animal and made him itand up, wnioh he oould hardly do. When asked by his Counsel what happened to his horse, he answered: "He died from breaking the leg; it gave him the look-jaw." immediately after this positive statement .made under oath, he relates the. story on the next page of his testimony that »ftor the aooident, ho rodo tho herse towards homo for a dis-tónos of two bleaks, hut that finding tho horse was unahle to carry him, he then walked the animal from ton o’clock until nearly one o’eloek that night from St. Claude Street to his home, as far a distpnee as flood Street and florida Walk. Only one other wit-noss^adTthe plaintiff testifies that the horse showed the slightest oral deuce of even limping, while none of the several other eye witnesses to the aooident testified that the horse was even thrown to the street or ourbing, hut, on the contrary, all of them swear that the horse was standing all the while after the aooi-dent. On oross-exsminatien of the plaintiff he gives farther and more startling oontradiotory evidence in stating that he took the animal to a veterinary "when he oould get him to walk," and then he immediately says that he did not take him to the veterinary because the horse oould not walk, hut that he a (maulted a veterinary, who, without seeing the animal, prescribed a liniment for the horse’s bruised (not broken) leg, which was all swollen above and bwiew the knee. He finally swears the horse's knee oap was kneoked out of piaos and that he died in August, four months after the aooident. Although plaintiff's petition speolfioally names the veterinarian alleged, to have treated the injured horse, no sueh witness was produced in oorroboration of plaintiff’s story, nor has any evidence been offered to confirm the death of the animal nor the cause of the death if sueh has occurred.

In the light of this oontradiotory ana unaatiafaotory ovidonoo, aa abova diaouoood, we are net able te oonolude that the plaintiff has establishad, by any oonvinoing faots, sd that the horse wae in any way injurad or that damages from the aooident have been suffered by the plaintiff in this respeot.

It is, therefore. ordered, adjudged and deoreed that the judgment herein appealed from he and the same is hereby amended so as to reduce said judgment from the sum of $165.00 to the sum of $40.00, The judgment, as thus amended, is hereby affirmed at defendant's costs in both oourts.

JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED.

February 19, 1983.


author: Charlee F,Claiborne,Judge,

text:
    J.H.Tucker,Appellant. vs Mehle Live Stock Commission Co.
    No.8900
    Charles F.Qlaibome,Judge,
    April 16th 1923

   J.H.Tucker,Appellant. vs Mehle Live Stock Commission Co.

»o*8900

Charlee F,Claiborne,Judge,

This is a suit on a draft drawn against a consignment' of cattle.

The plaintiff Tucker alleged that he sold to J.D. Seeley certain cattle for the price of #698.10 ; that the said Heeley gave him In payment of said cattle a draft drain* by himself on the Mehle Live Stock commission Company for a like amount of #690.10 payable to the order of petitioner,Tucker } .that the said Seeley shipped Bald cattle to the Mehle Live Stock Commission Company for sale} with Instructions to pay th-aboye mentioned 4»vwF* draft of #696.10 out of the proceeds of the Bale of said cattlejthat the Mehle Live Stock Commission Company sold sala cattle ror account of Heeley;bot,in disregard' of his instructions to them,credited the proceeds of sale to a debt due to them by Heeley,and refused to pay the draft} that the Mehle Live Stock commission Company knew before It sold said eattie that the draft of $696.10 had been executed in payment of the cattle purchased by Heeley from petitioner Tucker,and that It would be presented to them for payment.

The plaintiff prays for judgment against, the depen-dan • lor tls amount af the draft.

The defendant file _ plea of no cause of action, whioh was sustained and the plaintiff has appealed.

A commission merchant or factor is an agent te sell a k! must execute his mandate as a whole as he is instructed 4 t 1licit p.W* S 2908 Story Agency S. 189-190-1SP . He eau&vl acre, it a part and .reject another.Such has long since, been th - Juris q ««dance of this State*

Our leamsd brother of the City Court has evidently overlooked the allegation in the petition that Neeley shipped the cattle to the defendants with Instructions to pay the draft sued on out of the proceeds of sale of the cattle,and that the defendants had notico of said draft.

In Farmers * Bank vs Franklin 1 A 393,(1846) the Supreme Court said s

"Vihere merchandise is shipped to a factor,with directions to sell it,and apply the proceeds to the payment of a hill drawn by the owner in favor of the shipper,the factor who receives the consignment is bound to comply with the conditions upon which it was delivered to him.He cannot apply the proceeds to the payment of any debt due to himself by the owner.*

In 2 A 572 s" Consignees,who accept a sonslgnment, are bound to obey the directions of the consignor,made at a time when the property was under his control,as to the appropriation of the» proceeds.*

In 10 A 783i * We consider it well settled,under our Jurisprudence,that a factor in accepting a consignment Is bound to comply with the conditions imposed upon him by his principal In relation to the appropriation of the proceeds."

Zn 13 A 661 I * There are two classes of eases in which-cerditors of a consignor cannot attach merchandise oto its proceeds In the hands of the consignee.In the first the consignments are made with express instructions to pay the proceeds to a third party,and the stipulation in favor of the Bra party is CC0Í4*2. aceepted by him xxx In the first oates of oases,the obligation to pay is a part of the original oontraot,and gires to the third party a right of action against the consignee for the proceeds of cale.* 0.0.1890^1884 )

In 14 A 494 t* If the consignor inserts in the bill of lading forwarded to his factor that he has drawn a Mil aginet the shipment,the factor receives the consignment with notice,and is obliged to pay tha Mil to tha transferee thereof), eren if the consignor la indebted to the factor for a larger amount than tha proceeds of the goods consigned.*

In SO A 9 46 rífhera oan be no doubt of the correct** ness of the general proposition that a consignee who acoopts a oonaigaBient with the advise and notice that the consignor had drawn on him for a stated amount against the goods consigned impliedly promises to aooept and pay the draft,and on refusal may be sued'as for breach of-contract.*

See Also 18 M,702-4 N.S.557-18 La 321-4 R 440-3 A 47-85-7 A 335 10 A 377-351-11 A 333-410 —18 A 282-512-25. C.J. p.412 S 144-14 S.E.387-29 S.E. 2.

Xt As therefore ordered -that the judgaeat'Of the District Court maintaining «he exceptions of.no cause or right of action be reversed ana set aolde**ad that «lile ease be rim ded to the District Court for trial on the merits and in aocor danés with the views herein expressed)costs of ,appeal to be pad paid by the defendant and appellee,and oosta of- tha1 Dtstrlefc Court to await the final decision of the ease,

Judgment reversed and remanded*

April 16th 1986 .


author: Bjr WILLIAM A. HERI, Judge.

text:
    CLARENCE SMITH VS RAPHAEL DE LOS REYES
    NO. 8905
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL. JUDGE.
    APRIL 2, 1923.

   Bjr WILLIAM A. HERI, Judge.

She defendant has appealed from a Judgment awarding plaintiff damages as prayed for in the sum of $172.00, for injuries te plaintiff's automobile. There is no dispute as to the extent of the damages, the sole question for determination being one of faat going to establish the negligenoe of plaintiff or defendant. She suit arises from a collision between defendant's Perd Sedan and plaintiff's Soripps-Booth Coupe, which ooourred en Sunday noon, August 13, 1921, at the corner of Bourbon and St. Ann Streets. She weather was raining and the street wet. Each of the litigants claims that the other negligently oellided with his ear and that each was guilty of violating the oity ordinance by exoeodlng the speed limit. Plaintiff also charges defendant with additional negligenoe in that ne failed to oome to a full stop before continuing out St. Ann Street and across Bour-ben Street, the latter street being a one-way, right-of-way street.

She evidence is most conflicting except in respect to the location of the oars after the collision. All parties agree that after the collision plaintiff's oar continued in an .angular direction striking a post on the lower, wood corner of Bourbon and. st. Ann Streets, and the defendant's car was headed around into and oont-imiad • down Bourbon Street for a distance of nearly a third of a block. One of the defendant's witnesses swears that after the collision she' saw plaintiff s oar with its radiator against the post. Both of plaintiff's witnesses oonfirn this fact and none of defendant's witnesses .have denied it. The nature of the damages to plaintiff's oar dearly indicate that it either oollided with .or was struok by two different objeots. It is most apparent that the object which, caused the damage to the right'siav or plaintiff's oar could not have been the same objeot iwhlch 'damagea. plaintiff's radiator, and-since the radiator is shown to Rave teen resting head-on against the post, it must he plainly seen that the post and not defendant's oar caused this particular damage, There is no doubt that the two oars collided, hence the image, that is, the damage to the right side of plaintiff's ear, is hound to have been caused by defendant's collision with plaintiff's ear. The damage to the left side of defendant's oar and its ultimate direction down Bourbon Street, convinces us that it was defendant's car which ran into plaintiff's car while the latter was taking a left oblique direction in its effort to avoid a collision with defendant's oar. Moreover, one of defendant's witnesses who was seated alongside of the driver and in the front of defendant's car, swears that at the moment of the collision she almost went through the front glass and that she hit he.r head. This could not have been the case if defendant's car had been hit on the side by plaintiff's on-coming oar.

This brings us to the consideration of the proximate cause of the accident and.also to the question as to which of the litigants', if either, negligence may be attributed. The defendant in his answer as well as in the evidence offered on his behalf,. admits that his oar was not brought to a full stop on St. Ann Street before crossing Bourbon Street. This was clearly a violation of the city ordinance offered in evidence, and unless defendant can show plaintiff was in other ways also negligent or failed, when able, to avoid the accident, plaintiff must recover. See Brooklyn Cooperage Co. v. Paul Piazzo, No. 8820 Orleans Appeal. (Decided January 22, 1923).

The only Manner in whion defendant attempts to fix the responsibility on plaintiff is by alleging and attempting to prove that plaintiff's oar was travelling down Bourbon Street at a terrific speed of some thirty or thirty-five miles an hour. Both of plaintiff's witnesses swear that his oar was not going over twelve to fifteen miles an hour. There is contrary evidenoe in the record' given by defendants witnesses, all of whom were occupants of defendant's car and all being young girls, inexperienced in driving automobiles, each of them admitting that they were more or less excited at the time of the aooident. We are not inoliied to give much weight to their testimony as to- the speed of plaintiff's oar. The plaintiff also charges that defendant's oar was exceeding the speed limit, but we do not believe that either oar was violating the ordinance in this respeot. We do not find from the record before us that plaintiff was in any manner guilty of contributory negligence or that he could have avoided the accident, despite the evident negligence of defendant. Shore is nothing before us which would Justify conclusions oontrary to those of the trial court.

II IS, IHEREFORE, ORDERED, ADJUDGED ARD DECREED that the Judgment herein appealed from be and the same hereby is affirmed, at defendant's costs in both '"urts.

JUDGMEHI AFFIRMED.

AERIL 2, 1923.


author: Dintelspiel; J.

text:
    NO. 8906
    COURT OF APPEAL PARISH OF ORLEANS
    JAMES A. ROSS versus HARRY SELLERS.

   Dintelspiel; J.

Plaintiff institutes this suit, t-il^ing that defendant is indebted to him in the sum of i.MD.98, balance due on notes.

The defendant answered admitting- the giving of the notes for a consideration, but averring that he -ad the plaintiff had various business dealings together, whereby each had incurred obligations to the other, and that they virtually agreed in settlement of the claims that the defendant was to remit certein olaims against plaintiff and that plaintiff was to return to him the notes in suit.

Subsequently defendant filed a supplemental answer one and plead that ^st Despard had sued plaintiff for the sum of $4350.00 on notes, in the Civil Dlstriot Court, and defendant had been sued also as an accomodation endorser on these notes, and that he had pleaded in answer to the Despard suit, hie liability as accomodation endorser, and that if the Court in this case found that any m spite of his settlement with plaintiff, which had been previously plead, there was any indebtedness due by him to Ross, he plead in set off his responsibility to Despard as accomodation endorser for plaintiff.

On the trial of this case defendant admitted his signature to the notes in question! henoe there is no question be-fo re the Court as to the correctness of the indebtedness sued on, but defendant in his answer as a special defense set up oer-tain compromises between himself and plaintiff. Subsequently filing supplemental answer on filing motion by plaintiffe counsel stating virtually that the amended and supplemental answer were directly and antagonistically opposed to plaintiff's petition, and defendant's admission, and were matters that oould not be inquired into by the Court, because amongst other thingé the agreement was not in writing, henoe testimony sought to be elioited .oould not be entertained,

Civil Code, Art, 3071.- "A transaction or compromise is an agreement between two or more persons who, for prevention or putting an end to a law suit, adjust their differences by mutual consent m the manner which they agree on and which every one of them prefers to the gaining of the balance by danger of losing. This oontract must be reduced into writing."

The Supreme Court of our State has affirmed this question in Orr & Lindsley vs. Hamilton, 36 An. 790:

Doubtless the intention of the lawmaker made xax±s a distinction between a claim in set off where there necessarily must be something of the same nature exchanged between the parties and this was done to prevent unnecessary litigation. In other words when the matters involved are of identically the same character set off may be pleaded, but on the other hand when they are not one whene matters are settled between the parties, it must be in writing.

Civil Code. Art. 3209» Compensation takes place only between two debts having equally for their object a sum of money or a certain quantify of consumable things of one and. the' same kind and which are equally liquidated and demandable.

An unliquidated claim cannot be plead in compensation against the note.

The answer and the supplemental answer are in our opinion, in direct opposition; hence the Judge aquo in refusing to admit testimony as was shown in this record, on these demands was justified, and whilst there are possibly some immaterial questions and answers which would not be effective to this case one way or the other and whioh may have been admitted,- yet there ip no error, and no injustice was done to either party by the refusal of the testimony thus attempted to be elicited.

When as in ex this case it was not 3hown by the krxkcx original or the supplemental answer that the facts contained in the supplemental answer were unknown to the defendant at the time of the fillr.-r cf the flint answer ae In? ai* cS lomaras, the supplement! 1 answer will he stricken and he is hound by his original answer.

April 2nd, 1923.

Jamieson vs. Cullom & Co. et al. 110 La. 781.

We find’ that the items plead in the supplemental answer or certainly not equally liquidated with the notes sued on/

Admitting that the allegations of the answer and the supplemental answer should have been permitted to have been filed in this case, then on objection to the proof of same the debts not being-equally liquidated, hence, not equally demandable, objection to testimony would be correctly abixixmi maintained.

Case, Receiver, vs. Marchand, et als. 23 An. 61.

Bell vs. Powell 23 An. 797.98.

The reoord satisfies us further that whatever view we may take of this case the supplemental answer in no manner, shows an indebtedness by plaintiff to defendant, hence the set off olaimed not being demandable, the Judge of the Court aquo was correct in maintaining the objections made to the various questions of this character, and his judgment as a whole condemning the defendant for the amount admitted to be due, was correct.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment of the Court aquo be and the same is hereby affirmed, defendant to pay oosts in both Courts.

-Judgment affirmed.


text:
    NO. 8908
    COURT OF APPEAL PARISH OF ORLEANS.

    VIRGINIA JONES HINTON versus NEW ORLEANS RY. & LGT. CO.
   Dinkelspiel; J.

This 4s a damage suit. Plaintiff avers that she was a passenger on ohe of defendant's oars on the 6th day Si. August, 1931, and that about eight or nine o'do ok of that night when the oar reaohed Felioity and Annunciation Streets she pressed the button in order to get off at the oorner of St. Mary g,feand tnat when the oar reaohed the max point between Felioity and St. Mary Streets, she again pressed the eleotrio. bell notifying the oonduotor thus of her intention to alight at the oorner1 of St. Mary and Annunoiation Streets and that as said oar neared the oorner aforesaid she arose from her seat, went to the baok platform to await the stopping of the oar, in order to alight, and that said oar did stop at the comer of St. Mary Street; that just as- soon as it stopped another passenger getting on the oar blooked plaintiff's exit and that as soon as her path was olear enough to allow her to alight sksxKttsmpsd she attempted to do so and whilst in the aot of passing one foot from the platform to the step in leaving the oar, the said oar started and threw your petitioner from the platform to the groudd; she further alleges that when in the aot of stepping from the platform to the step that the oar started off without notioe or warning and that the jolt said oar gave when it smarted threw her off her balanoe and she was precipitated to the ground in a very violent matter. Averring further that as a result of the aforementioned aooident she was terribly bruised all over her body, suffered severe jnixi injuries, was oonflned to her bed atan* for quite a while;and for the Injury suffered and the aatcrmxxa mental anguish attached thereto, she was entitled to the sum of Mine Hundred Dollars and for Doctor's bills and medical services $100.00, claiming judgment In the sum of $1000.00.

The answer, after pleading, the general Issue, avejM that plaintiff nereeii was -one cause of whatever Injury she sustained, because of her Impatient and negligent oonduot in getting off the oar at the time alleged.

The evidence, as usual in oases of thle character, is conflicting*

Plaintiff relies on her own testimony and that of another witnesses. This witness, Julia Burnside, testified that she was standing at the corner of the Street and saw the aooident in question; she saw plaintiff fall from the step just as testified,to by plaintiff herself; in other words thaxa they substantially testified, both plaintiff and this witness, that m art spring attempting to alight from the steps of the oar and as the other passenger/got on the oar, plaintiff, when the oar started suddenly and gave a Jerk and jolt, was thrown to the grouna. Relative to the injuries sustained by plaintiff, the dootor who attend, ed plaintiff was never oallea to testify, and the nature of the injuries suffered Dy plaintiff, exoept through her own testimony and that of her witness is nowehre to be found in this record.

On the other hand, it is testified to by the motor, man, the oonduotor, and a passenger, a disinterested party, by the name of Hyber, who all testified substantially to about the same effeot, that is, that when the bell was rung in order for the oar to stop to permit plaintiff to alight it oameto a stop and as she got on the step, for some oause or other, she fell; the oonduotor immediately went to her assistanoe and asaited her to her feet, he asked her if she was hurt, the first said "no", and subsequently amended tbl* answer and said her baok hurt her; he further testified, sad he was borne out by the other witnesses,to the fact that after he raised the woman and pun her on her feet she walked away. Plaintiff claimed that she wae aeeited from the ground where she had fallen , by some friend, that she had loot con-oiousnese entirely for about ten minutes and she further te»~ tifiad that this friend had since died, hone she was untóle to produce him In Court*

We therefore have her testimony, unsupported save sad except by her friend previously referred,to, Julia Burnside, and we have the unoontradiote.d testimony of the oonduotor, motorman and a disinterested witness, absolutely to the contrary.

Whether plaintiff was seriously injured or incon-venienoed or not, the fact that she got off this oar when it had stopped to permit her to do so, is in our opinion be* yond peradventure, and under the facts in this ease viewing it in every way, we conclude that whatever injury *f any this plaintiff sustained, Bhe has failed to make her oase oertaln, and under the law, as deoided by the Supreme Court of this State, and our own Court, she are cannot xmmsmx reoover.

The decisions on this point/»* olear and our reports are full of them, amdxnx and amongst them, we oite the following oases:

*Where the motomeer of a street oar, in answer to a signal, is slowing down his oar, m order to stop it with the rear platform over the proper oroeslng, and a passenger has taken his position on the lower step of the patform, preparatory to getting off, the fact that the passenger loses his balance and falls to ghe ground, it being olaimed that suoh fall resulted from the sudden jerking of the oar, ana from the passenger eatohing his shoe in a defective step, will not justify the oonclueion that suoh fall Should he at* tributed to the negligence of the carrier, when %% appears that the irregularity of motion ooaplained of wae not great-*r than is usual in the stppping of street oars and that the step wae of an approved pattern and without diaooverable defeota. *

Philips vs. St. Charles St. Railroad Co. 106 La. 593.

'Passengers .on eleotrlo street oars assume the risk of injury from ordinary jars and jolts incident to the operation of suoh oars, with due oar, in the usual manner* w>.-t a lady passenger left her seat and stepped into the aisle, while the oar was in motion, and then fell down and injured one of her k* knees, held, that she cannot raoover damages from the railroad company, where the preponderance of the evidence shows that the motorman operated the oar with due care , and that it came to a stop, with no unusual jar or Jolt.»

Vincent vs. N. O. Ry. & Light Co. 134 La. 654.

And to the same effect Is the decision in Massicot vs. New Orleans Railway & Light Co. 141 La. 622.

It has been frequently decided that where the Judge of the lower Court heard and saw the witnesses he had a butter opportunity of Judging their veracity than we have and unless his Judgment is manifestly erroneous same will not be disturbed.

We have given this case oareful end' considerate attention and we are convinced that the Judgment of the Court aquo is oorreot.

For the reasone assigned it is ordered, adjudged and decreed, that the Judgment of the Court aquo be and the same is hereby affirmed.

-Judgment affirmed-


author: By WILLIAM A. BELL, Judge

text:
    G. H. A. THOMAS COMPANY VS MRS. MAMIE EVANS & ARTHUR EVANS, HER HUSBAND
    NO. 8911
    COURT OF APPEAL FOR THE PARISH OF ORLEANS
    WILLIAM A. BELL. JUDGE
    MARCH 5, 1923.

   By WILLIAM A. BELL, Judge

Hill is a suit by plaintiff for tne valúa of oartain mataríais furnished and usad in repair of a oartain building. The action is brought against the alleged owners of the building, from jrhom plaintiff seeks to reoover the sum of $144.46. Thera was Judgment for this amount in favor of plaintiff and defendants have appealed.

We find from the evidence that the plaintiff sold and delivered certain lumber to one H. Rhodes, as appears from an itemized statement filed in the reoord, deliveries of said lumber having bean made between July 8, 1921, and August 5, 1921, and used in the repair of a building belonging to the defendants, who had contracted with the said Rhodes to repair their residence for the total sum of ‡400.00, all in aooordanoo with the written oontraot between the defendants and the said Rhodes, also in the reoord of this case. It appears that the entire prioe of the oontraot between defendants and the purchase of this lumber was paid by the defendants to the said oon-traotor under six oartain installment payments, receipts for which are also found in the record, and the last receipt of which declares that the full amount of the oontraot has been paid, this last receipt bearing date August 9, 1921.

On April 24, 1922, eight-and-one-half months after the completion of the work by Rhodes, the plaintiff in this suit served an attested aooount on defendants, and on the seme data recalled in the Mortgage Office of the Parish of Orleans a copy of the attested aooount, duly sworn to, and bearing on the property of the defendants herein. This aooount showed a total of $142.96, and, in addition to this amount the oust of recording said attested aooount, in the sum of $1.50, is prayed for in plaintiff's petition. There is no prayer in the petition for recognition of waafiy' lien and privilege.

Defendants have answered this salt, pleading that the plaintiff’s petition dlsolosea no oansa of notion; that H. Rhodos, the contractor, should have hoen nado a party thereto, and, on the merits, denying oertain allegations or the petition. It is alleged that they apeoially deny ever having bought any lumber or building material from the plaintiff, but that they did have a oontraot with the said Rhodes for repaira to their property, and that said oontraot having been fully performed, they made full payment of the oontraot pries to the said Rhodes, and never knew that Rhodes was Indebted to the plaintiff until April 24, 1922, the date upon whioh the attested aooount was served end filed. It is further averred in defendants' answer that they were duly served with said attested aooount and that a copy of ■ame was recorded in the Mortgage Offloe oü(April 24, 1922, but that they deny the right of plaintiff to serve said attested aooount after the delays allowed by law had expired; and it is further averred that the attested aeeeunt was not seasonably served, and that there should be an order entered directing plaintiff to oanoel seme at plaintiff’s expense, thus relieving defendants’ property of the oloud resting on the title to their property.

Shore was judgment for the plaintiff in the amount prayed for without reoognition of any lien and privilege.

Shore is a letter in the record addressed to the plaintiff by defendants' attorney, bearing date April 21, 1922, three days before the reoerdatien of the attested aooount. Shis letter is in response to one addressed to the defendants by the plaintiff, and it is argued by plaintiff that defendants, through their counsel, have admitted in this letter- their liability to the plaintiff. We have examined the oontents of this letter with oare/ and find there is nothing in it by whioh the liability of Rhodes, the oontraotor, to the said plaintiff has in any manner been assumed by the defendants, nor is there anything in the sai a letter which could have induced the plaintiff to delay in the assertion of it's lien, as provided hy law. The period for recording the lien had ¿Lapsed hy many months at the time of the writing of said letter, and it's contents may, therefore, he wholly disregarded, the same being immaterial to the issues in this case.

We find the facts in this case square in every respect with those which we have heretofore considered in the case of Roca Lumber Co. v. Price & Chambers, No. 8741 of the docket of this court, and decided hy us on February 5, 1923. The same law applies to this case as was observed in the oa3e just cited, and the plea of prescription now urged by the defendants in the instant case must be maintained

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the judgment herein appealed from be and the same hereby is reversed, and IT IS HOW ORDERED, ADJUDGED AHD DECREED that there be judgment in favor of the defendants, Mrs. Mamie Evans and Arthur Evans, her husband, dismissing plaintiff's suit at plaintiff's coats in both courts.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the lien and privilege recorded in the Mortgage Offioe of the Parish of Orleans in favor of G. H. A. Thomas Company, in the sum of $142.96, be duly cancelled and annulled, the same appearing in Mortgage Offioe Book 1270, Folio 163, and bearing against the following described property:

"Ho. 1732 Constantinople Street, in the square bounded by Constantinople, Marengo, Baronne and Carondelet Streets, being Square Ho. 433."

The cost of said cancellation to be borne by the plaintiff herein, the G.H.A. Thomas Company, and being hereby taxed against said plaintiff as part of the judgment herein rendered.

JUDGMEHT REVERSED.

MARCH 6, 1923.