text:
    230 La. 8
    Succession of Jules LAPENE.
    No. 42858.
    Supreme Court of Louisiana.
    May 7, 1956.
    Philip P. Spencer, New Orleans, for defendant-appellant.

      Samuel J. Tennant, Jr., Michael H. Ba-got, New Orleans, for appellees.
   HAWTHORNE, Justice.

Appellees, who allege themselves to be the heirs of Jules Lapene, have moved to dismiss this appeal by the public administrator for the Parish of Orleans.

According to the record in this case, Jules Lapene died in New Orleans on April 6, 1889, leaving a will in nuncupative form by public act under which his two natural children, Jules and Anne, were to receive one-fourth of his property and his legitimate brothers and sisters the balance of his estate. Apparently his will was probated a short time after his death, and over the years his estate was administered by various public administrators for the Parish of Orleans. On August 19, 1952, W. Somer Benedict, who was then public administrator for the Parish of Orleans, was appointed dative testamentary executor of Lapene’s will, succeeding the previous public administrator in that capacity. A short time later Joseph Deynoodt was appointed attorney for absent heirs. In 1954 on petition of the dative testamentary executor an inventory was made of the property belonging to the deceased in Plaquemines Parish, and this inventory showed that 809.51 acres of land in this parish belonged to the decedent, Jules Lapene.

In due course 21 persons residing in France, Mexico, and Madagascar instituted suit alleging themselves to be direct descendants of Jean Baptiste Hyppolite La-pene, a brother of the deceased, and as such they prayed to be recognized as the sole heirs at law of Jules Lapene and sent into possession of the estate. There was also a suit filed by Jules Numa Lapene, Jr., in which he alleged that the testator has been survived by his natural children Jules and Anne; that Anne died intestate shortly after the death of her father; that Jules had married and had one child, the petitioner, and subsequently had died intestate, leaving the petitioner as his sole and only heir. Accordingly he prayed to be recognized as such and sent into possession of the estate.

To these petitions the dative testamentary executor filed among other things a plea of 30 years’ prescription under Articles 1030 and 3548 of the Louisiana Civil Code, and an answer of general denial. The exceptions were overruled. After trial on the merits there was judgment recognizing Jules Numa Lapene, Jr., as the sole legal issue of Jules Numa Lapene, and as such entitled to one-eighth of the estate under the will, and also recognizing the descendants of Jean Baptiste Hyppolite Lapene as the heirs of the testator entitled to seven-eighths of the estate in various proportions. This judgment also approved and homolo-"gated the provisional account filed by the testamentary executor, ordered him to file a final account within 15 days from the signing of the judgment, and further ordered that after approval and homologation of the account all property and funds in his hands as dative testamentary executor be turned over to the heirs and legatees of the estate in accordance with the terms of the judgment. The public administrator-dative testamentary executor appealed to this court.

Counsel for appellees have filed in this court a motion to dismiss the appeal, relying on three grounds:

(1) The public administrator-dative testamentary executor did not pray for service and citation of appeal on the attorney for absent heirs, Joseph Deynoodt, nor did the court in its order direct that he be cited.

(2) The public administrator-dative testamentary executor has no right of appeal.

(3) The public administrator-dative testamentary executor has acquiesced in the judgment by filing an account and paying some of the succession debts.

With reference to appellees’ first contention, we note at the very inception that these appellees themselves in their petitions to be recognized as the heirs of the decedent did not make the attorney for absent heirs a party to those proceedings or pray for citation on him. However, be that as it may, the attorney so appointed was present as attorney of record at the trial of the case on its merits and testified that he had made an extensive investigation, that he bad examined church records and had corresponded with various persons in France in his efforts to protect the rights of absent heirs, and that after examining various documents he had concluded that it was his duty to champion the cause of these plaintiffs, that he has done so ever since, and that he considered his work finished. In effect, the attorney for absent heirs did not oppose the claims of these plaintiffs; on the contrary, he championed them.

We recognize the general rule that all parties who are interested in main-* taining a judgment undisturbed must be made parties to any appeal from it, or the appeal will be dismissed. See Succession of Nunley, 222 La. 730, 63 So.2d 737; Krauss Co., Ltd., v. Manton, 227 La. 1, 78 So.2d 489, and authorities therein cited. However, under the peculiar facts of this case the attorney for absent heirs took the position in the lower court that these plaintiffs were the long-lost heirs, and that he no longer had any interest in the matter. Evidently he has acquiesced in the lower court’s judgment, as he has not appealed. Consequently there was no necessity for the public administrator-dative testamentary executor to pray for service and have the attorney for absent heirs cited to answer the appeal.

Appellees’ second contention, as stated above, is that the appellant here in his official capacity as dative testamentary executor is withoiit interest to contest the validity of the judgment rendered in the court below, since it is his duty under the law to see that the provisions of the will are carried out, and he cannot seek to avoid the legacies. Appellees argue that if the judgment of the lower court was incorrect in overruling the plea of prescription, the State of Louisiana was the proper party to take the appeal, and that if the court was in error in recognizing appellees as heirs of the deceased testator and sending them into possession, then the attorney for absent heirs was the proper party to take the appeal.

The succession of Jules Lapene evidently has been treated and regarded over the years as a vacant succession, and appellant here was appointed dative testamentary executor by virtue of his official position as public administrator for the Parish of Orleans under R.S. 9 ilSS#. The principal question presented by this appeal is whether these claimants are the heirs of Jules La-pene, who died in 1889 — that is, whether on the merits they have adduced legal evidence to establish their right as heirs and as such entitled to the property left by the decedent. If they have not, and if the decedent died without heirs, the succession is governed by Article 48S of the Civil Code, which provides:

“The succession of persons who die without heirs, or which are not claimed by those having a right to them, belong to the State.”

The appellant here is appealing as an officer of the State in his official capacity as public administrator to protect the interest of the State, and since the State has a real interest in this succession, there is no merit to appellees’ second contention.

The cases of Succession of King, 124 La. 805, 50 So. 735, and Succession of Boutte, 30 La.Ann. 128, are inapposite and therefore not controlling here. In the King case the curator of the intestate and vacant succession was a creditor, and not the public administrator; and in the Boutte case there was no issue as to heirship or the right of the claimants to claim the succession as heirs.

Likewise there is no merit in ap-pellees’ third contention, that the public administrator has acquiesced in the lower court’s judgment by filing an account and paying some of the succession debts. See Art. 567, La.Code Prac. The account filed here was a provisional one filed by the executor under Article 1674 of the Civil Code, which provides that an executor is bound to render an annual account of his administration. In no way can this document be considered as the final account which the judgment appealed from ordered, and consequently it cannot be regarded as an acquiescence in that judgment.

The motion to dismiss the appeal is denied. Costs of this proceeding are to await final disposition of the case.

      . The public administrator for the Parish of Orleans is appointed dative testamentary executor of all testate successions in the Parish of Orleans when from any 'cause the executor cannot discharge the duties of bis office and when there is no surviving husband or wife or heir present or represented in the state who is qualified and who claims the right to assume that office. R.S. 9:1584.


source: Caselaw Access Project

author: PONDER, Justice.

license: Public Domain

text:
    230 La. 17
    BERNARD LUMBER COMPANY, Incorporated, v. Majorie Ellen SAYRE, wife of, and Wesley J. Swigert.
    No. 42485.
    Supreme Court of Louisiana.
    May 7, 1956.
    Deutsch, Kerrigan & Stiles, New Orleans, Robert E. Leake, Jr., William S. Stone, New Orleans, of counsel, for appellant.
    Zeringer & Zeringer, Harold J. Zeringer, Jr., New Orleans, for defendants-appellees.
   PONDER, Justice.

In this suit the plaintiff lumber company is seeking to recover $2,445.67 from the defendants for the value of materials furnished to Robert Ryan, a contractor, allegedly to be delivered and used in the construction of defendants’ house. The defense to the suit is that the lumber was not delivered on the premises of the defendants or used in the construction of their house. On trial of the case, the lower court rejected the plaintiff’s demand and dismissed the suit. The plaintiff has appealed.

The case presents purely a question of fact. There seems to be no dispute as to the law governing this controversy.

The defendants entered into a contract with one Robert Ryan, a contractor, on September 12, 1953 for the construction of a house on their property at 460 Jefferson Highway in the Marsiglia Park Subdivision of Harahan. No bond was furnished by the contractor and none was required by the defendants. The plaintiff, the alleged fur-nisher of materials, timely filed a material-man’s lien. It is incumbent upon the plaintiff to prove that the materials were delivered to the site of the construction and upon such proof the burden then rests on the defendants to show that the materials so delivered were not used in the construction of their house. Laney Co. v. Airline Apartments, 223 La. 1000, 67 So.2d 570.

It appears that the contractor hás absconded and was not available at the time the case was tried. There is confusion as to where the lumber was delivered because Ryan was engaged in the construction of other houses in the immediate vicinity or subdivision. The plaintiff is seeking to recover for lumber listed in eight separate invoices alleged to have been delivered on the premises of the defendants. Three of the invoices amounting to $711.10 bear a date prior to the date of the contract for the construction of defendants’ house. There is no satisfactory proof that the lumber listed in these invoices was delivered on the premises of the defendants. Of the other five invoices, amounting to $1,734.57, the materials listed in only two of these were satisfactorily proved to have been delivered on the premises of the defendants. The amount of these two invoices is $553.62 and they are both dated September 16, 1953 and show that the lumber was delivered by Cleveland Samuel. His testimony is corroborated by Henry Epps, a carpenter employed by Ryan, who testified that the materials were delivered to the premises and used in the construction of defendants’ house. The testimony of Samuel and Epps has not been successfully refuted. The other three invoices bearing dates of September 15, 1953, September 18, 1953 and September 30, 1953, do not show with any degree of certainty that the material listed therein was to be delivered to the premises of the defendants and there was no satisfactory evidence produced to show that they were so delivered. The invoice of September 15, 1953 states that the lumber was to be delivered to Elaine Street and not at 460 Jefferson Highway, the premises of the defendants. The invoice of September 18, 1953 calls for the lumber to be delivered to Elaine Street but there is a notation on this invoice which seems to have been added, stating “460 Jefferson Highway.” A witness for the plaintiff testified that this was added by the contractor Ryan at a later date when he was called in about his past due account. The man who delivered the materials testified that he delivered the materials on Elaine Street at the corner of Jefferson. Ryan was constructing another house for other parties on the corner of Elaine Street. The invoice of September 30, 1953 shows that the delivery was to be made to Jefferson. This invoice is illegible but it seems that a notation was made on the 'bottom of this invoice, “460 Jefferson Highway.” Like the invoice of September 15, 1953 this notation was placed on this invoice at a later date when Ryan was accosted by the plaintiff about his overdue account. From the evidence we cannot say that the lumber called for in these three invoices was ever delivered on defendants’ premises or used in the construction of their house.

For the reasons assigned, the judgment of the lower court is reversed and set aside and there is now judgment in favor of the plaintiff, Bernard Lumber Company, and against the defendants, Mr. and Mrs. Wesley F. Swigert, for the sum of $553.62 with 5% interest from judicial demand until paid. All costs to be paid by the defendants.


text:
    230 La. 21
    Henry C. VOSBEIN v. Walter Joseph LEOPOLD.
    No. 42419.
    Supreme Court of Louisiana.
    May 7, 1956.
    Sam Monk Zelden, Max Zelden, New Orleans, for defendant-appellant.
    Weiss & Weiss, S. Paul Weiss, Jr., New Orleans, for plaintiffi-appelle.eC
   PONDER, Justice.

The plaintiff is seeking to recover on two negotiable promissory notes, one dated March 19, 1953, calling for $4,200, and the other dated January 7, 1954, for the sum of $1,943, interest and attorney’s fees. The defense to the suit is that the notes are void for lack of lawful consideration because they represent a large sum of usurious interest imposed on a prior obligation. On trial the lower court gave judgment in favor of the plaintiff and the defendant has appealed. The plaintiff has answered the appeal asking for ten per cent damages' for frivolous appeal.

It'appears that the plaintiff made a loan to the defendant some years ago in the sum of $16,000. This loan was represented by a promissory note secured by a mortgage. The note and mortgage were cancelled and a new note was given in the amount of $3,800, the indebtedness having been reduced to that amount. Thereafter, on March 19, 1953,- a new note was executed by the defendant payable to the plaintiff in the amount of $4,200, representing the $3,800 and a $400 cash loan made to the defendant by the plaintiff. Another note was executed by the defendant in favor of the plaintiff in the amount of $1,943 on January 7, 1954, representing $675 legal fees due the plaintiff on another transaction (the plaintiff being an attorney at law) and $1,368 interest on the $3,800 included in the first note. It is admitted by the parties that due to a miscalculation this note was made for $1,943 instead of $2,043.

The appellant contends that the $4,200 note, dated March 19, 1953, was composed of a cash loan of $4,200 and $3,800 usurious interest charged on the previous loan of. $16,000. While there is considerable conflict in the testimony in this case, it is apparent that the $3,800 represents a portion of the principal and the interest due thereon. The evidence shows that the defendant on the original $16,000 loan paid interest at the rate of 18% per annum and in some instances mor.e than that amount of interest. Undoubtedly a portion of the $3,800 included in the $4,200 note represented usurious interest, but since this usurious interest was capitalized with a portion of the principal obligation no relief can be granted the defendant. The pertinent provisions of Article 2924 of' the LSA-Civil Code, as amended, provides as follows:

“The amount of the conventional interest cannot exceed eight per cent. The same must be fixed in writing; testimonial proof of it is not admitted in any case.
■ “Except in the cases herein provided, if any persons shall pay on ahy contract a higher rate of interest than the above, as discount or otherwise, the same may be sued for and recovered within two years from the time of such payment. * * *
“The owner of any promissory note, bond or other written evidence of debt for the payment of money to order or bearer or transferrable by assignment shall have the right to collect the whole amount of such promissory note, bond or other written evidence of debt for the payment of money, notwithstanding such promissory note, bond or other written evidence of debt for the payment of money may include a greater rate of interest or discount than eight per cent per annum; provided such obligation shall not bear more than eight per cent per annum after maturity until paid.
“Provided however where usury- is a defense to a suit on a promissory note or other contract of similar character, that it is permissible for the defendant to show said usury whether same was given by way of discount or otherwise, by any competent evidence.”

It appears from the jurisprudence, after the- amendment of Article 2924 of the Civil Code in 1908, that where interest and principal is capitalized in a new note, even though the interest included was usurious, recovery could be had in full on the note. Turregano v. Barnett, 127 La. 620, 53 So. 884; General Securities Co. v. Jumonville, 216 La. 681, 44 So.2d 702.

The second note calling for $1,943 admittedly represents $675 legal fees due the plaintiff on another transaction, and interest on the $3,800 due under the prior loan as a portion of the $16,000 obligation. From the 'evidence it is apparent the amount of interest included in the second note was usurious interest and that no part of the principal was included.

The appellee admits that the interest was usurious but contends that he is entitled to recover on this note because the interest was capitalized in the new note. We cannot accept this contention because this second note, with the exception of $675 for legal fees due on another transaction, was made up entirely of interest due on the prior obligation at a rate in excess of that allowed by law. No part of the principal of the prior obligation is included in this second note, therefore, it could not under the jurisprudence be considered as capitalization within the meáning of the law.

We do not feel justified in extending the doctrine of capitalization in regard to usurious interest with an entirely different transaction; otherwise parties would be permitted to recover usurious interest by merely capitalizing it with transactions foreign to the principal obligation and by this means circumvent the law.

The appellee takes the further position that his promise to forbear on the collection of the first note is a valid consideration. We find no merit in this contention. Weaver v. Kearny & Blois, 17 La.Ann. 326; Walker v. Villavaso, 18 La.Ann. 712; Chadwick v. Menard, 104 La. 38, 28 So. 933; Huntington v. Westerfield, 119 La. 615, 44 So. 317. In the case of Robinson Lumber Co. v. Tracka & Boudreau, 173 La. 461, 137 So. 853, 854, although this Court held that the forbearance to foreclose on a timber mortgage was a valid consideration, the Court said:

“It is well settled, as contended by relator, that a note given as a mere bonus for the extension of time of payment of the original note or obligation cannot be recovered by the lender,. when in excess of the conventional rate of interest; that such bonus is excessive and usurious, and is not considered a legal consideration: Chadwick v. Menard, 104 La. 38, 28 So. 933; Huntington v. Westerfield, 119 La. 615, 44 So. 317.”

This language was again cited with approval in the case of Church v. Winship, 175 La. 816, 144 So. 585. In the general field of usury, a note given merely to secure an extension of an existing note is usurious. See 5 T.L.R. 211; 7 T.L.R. 124; 23 T.L.R., at page 66.

The appellee also contends that the defendant in his answer denied his signature on the notes and that the lower court erred in permitting the defendant to set up any special defenses over the objection of the plaintiff. We have examined the plaintiff’s answer and it is apparent after reading all of the allegations therein that the defendant did not deny his signature on the note. All of the allegations of the answer must be considered as a whole and it clearly shows that the defendant was opposing the suit, not on the ground that he did not sign, the note, but on the ground that the plaintiff had charged him usurious interest.

It was held in Osborne v. Mossler Acceptance Co., 214 La. 503, 38 So.2d 151, that, in accordance with Article 2924, R.C. C., as amended by Act No. 68 of 1908, where usurious interest is charged in a contract, the rate of interest is properly reduced to the highest rate allowed for conventional interest by our law, which is eight per cent.

If the $4,200 note had called for more than 8% interest, it would have to be reduced to 8% under the Osborne decision, but in the case under consideration the parties fixed the interest in that note at 6% and the usurious interest included in the second note was an additional 18% per annum for two years for forbearance which under the decisions, heretofore cited, is not a legal consideration and recovery must be denied on this portion of the note.

For the reasons assigned, the judgment of the lower court is ..amended by reducing the amount of the judgment from $6,143 to $4,875 with interest at the rate of 6% on $675 from January 7, 1954, until paid and 20% attorney’s fees thereon and, as thus amended, the judgment is affirmed. All costs to be paid by the plaintiff-appellee.


author: MOISE, Justice.

text:
    230 La. 30
    James O. BRUNEY v. Carole R. BRUNEY.
    No. 42627.
    Supreme Court of Louisiana.
    May 7, 1956.
    Bass & Nichols, Lake Charles, for defendant-appellant.
    George J. Ginsberg, Alexandria, for plaintiff-appellee.
   MOISE, Justice.

The defendant-wife has appealed sus-pensively to this Court from a judgment of divorce granted on the grounds of living two years separate and apart. In advance of the hearing on the merits, she has applied for an order remanding the case to the court below for the purpose of introducing certain evidence. The plaintiff has filed a motion to dismiss the motion to remand.

We feel that the application made to remand prior to hearing, for the purpose of receiving and considering certain new evidence, was premature. See, Article 906 of the Code of Practice.

We consider it a condition precedent to the exercise of such authority to remand that we should first determine that it is not possible to pronounce definitely on the cause in the state in which it is— meaning, of course, by “definitely”, a judgment according to conscience and the requirements of justice. It is plain that we cannot determine this question without first examining into the merits of the cause.

It might well be that we may conclude, on examining the merits on the suspensive appeal, that the evidence already submitted was sufficient, or that the evidence now suggested, even if admitted, could not affect our conclusion, or that, for some other reason, we could decide the cause to our satisfaction in the state in which it is. In such case, of course, the remanding would be unnecessary.

See, L. A. Frey & Sons, Inc., v. Town of Slidell, 173 La. 397, 137 So. 193.

For the reasons assigned, it is ordered: that the application to remand be, at the present time, refused, and that the subject matter thereof be referred to the merits of the cause to be considered and determined when said merits shall be heard and submitted.


author: McCALEB, Justice.

text:
    230 La. 33
    Succession of Katie ROTH, Widow of Frederick Franz, and Succession of Mrs. Katie (Katy) Roth, Widow of Fred Franz.
    No. 42875.
    Supreme Court of Louisiana.
    May 7, 1956.
    See also, 227 La. 1058, 81 So.2d 394.
    Piazza & Gulotta; Simon & Wicker; Curtis, Foster & Dillon; Felix W. Gaudin, New Orleans, for appellants.
    Prowell, Viosca & Reuter; Joseph V. Ferguson, II, New Orleans, for appellees.
   McCALEB, Justice.

Following the death of Mrs. Katie Roth Franz on October 22, 1953, the rival claimants to her succession caused it to be opened in the Civil District Court for the Parish of Orleans and presented for probate two wills purportedly executed by the decedent. The first of these was a nuncupative will by public act executed on October 22, 1947, which was offered for probate by the late August H. Grimaldi, Sr., a legatee under the will. The other was an olographic will, dated March 17, 1948, which appellee, Mark J. Falgoust, sought to have probated. Simultaneously appellants, John W. Thomas and William Kleis, Kate Burgwardt and the late Pauline Roth Denniston (presently represented by the testamentary executrix of her estate), filed a petition in the succession proceedings attacking the validity of the two wills on numerous grounds and specially pleaded that the olographic will was a forgery. The heirs of August H. Grimaldi joined the Kleis group in assailing the olographic will.

The trial court, realizing that the litigation would he protracted, appointed the National American Bank in New Orleans as administrator pro tempore of the estate “until such time as the validity of the wills shall have been determined finally by the courts of this State”.

In due course, the case was fixed for hearing and the taking of evidence begun. After testimony had been heard for more than ten days but before the parties had submitted the matter for decision, the judge announced that he would admit the will for probate. Thereupon, appellants notified him that they would apply to this court for remedial writs. The writs were applied for, granted and made peremptory upon appellee’s acquiescence in the prayer of appellants’ application, this court ordering that the case be remanded to the lower court to be proceeded with according to law, that is, that all the testimony be heard before disposition be made of appellants’ demands. See Succession of Mrs. Katie Roth Franz, No. 42,130 of the docket (not reported).

Conformably with the order of this court, the trial judge completed the hearing of all evidence in the case and rendered judgment on January 12, 1956 (which was signed on January 20, 1956) dismissing the oppositions of the appellants to the olographic will and further providing that “when this judgment shall become final, the probate of decedent’s will on November 4, 1954, which was interrupted by the application for remedial writs, be completed, and that in due course. Mark J. Falgoust be permitted to qualify as Testamentary Executor of decedent’s estate upon taking the oath and complying with the requisites of the law”.

In due time all opponents adversely affected by this judgment applied for and were granted suspensive and devolutive appeals upon each set of appellants (Kleis and Grimaldi) furnishing bond in the amount of $3,000. The appeals were perfected by the giving of the bonds and the timely filing of the transcript in this court.

Appellee now moves to dismiss the appeals. The primary basis of the motion is that the judgment sought to be reviewed is nothing more than an interlocutory decree and that, being tantamount to an order probating the will and confirming the appointment of the testamentary executor appointed therein, it cannot suspend the execution of the judgment in view of Articles 580 and 1059 of the Code of Practice.

There is no merit in the contention. The judgment herein, which disposes of the issue in controversy between the parties, i. e., the validity of the olographic will of March 17, 1948, is a final appealable judgment within the contemplation of Article 565 of the Code of Practice. Since appellants were vested with the right of appeal, the law itself regulates the effect to be given to such appeal. Young v. Village of Bossier City, 152 La. 18, 92 So. 719. Article 575 of the Code of Practice provides for the suspensive appeal which is allowable, save in exceptional cases, when it is taken within ten days and security is furnished in monied judgments for a sum exceeding by one-half the amount for which the judgment was given and, in other cases, in such amount as is fixed by the trial judge. Article 574, Code of Practice; Layman v. Succession of Woulfe, 136 La. 767, 67 So. 823 and Ruppert v. Fontenot, 138 La. 375, 70 So. 331.

Appellee’s complaint that the judge erred in granting suspensive appeals is founded on the theory that this is one of the exceptional cases in which a suspensive appeal is not permitted.

But these appeals are not governed by Article 1059 of the Code of Practice. That article, declaring that an appeal from a judgment appointing or removing a tutor or curator or an administrator shall not suspend the execution of the judgment, is clearly inappropriate here as the appeals have not been taken from such a judgment as described therein. No doubt the judgment herein clears the way for the probate of the will and the confirmation of appellee as executor, but the fact remains that it does not install him as such.

Furthermore, Article 1059 of the Code of Practice was never intended to apply to an appeal of this sort. The reason for that Article and the complementary Article 580 of the Code of Practice is the necessity for having certain judgments take effect immediately so as to prevent injury to a minor, interdict, absentee or succession for want of a tutor, curator or administrator, as the case may be. State ex rel. Pearson’s Widow v. Parish Judge, 22 La.Ann. 61 and Succession of Tyler, 192 La. 365, 188 So. 31. Since the succession in the instant case is being administered by an administrator pro tempore, no injury could result from the allowance of the suspensive appeals. Consequently, Article 1059 of the Code of Practice is without pertinence.

Appellee additionally asserts in his motion to dismiss that there are various irregularities of form in the appeal bonds and further that the bonds are insufficient in amount and not fixed in accordance with law.

These objections may not he considered by this court on a motion to dismiss. R.S. 13:4579. The court of original jurisdiction is the proper forum, in which all errors in appeal bonds, or matters pertaining to their sufficiency, may he corrected. R.S. 13 :4572; Hand v. Harper, 171 La. 47, 129 So. 664; Blaize v. Cazezu, 208 La. 1081, 24 So.2d 147 and Governor Claiborne Apartments v. Attaldo, 227 La. 39, 78 So.2d 502.

It appears in this case that appellee did file a rule in the trial court assailing the sufficiency of the amount of the appeal bonds and contending that they were not fixed according to law. However, after a hearing, appellee’s rule was dismissed and he neither appealed nor made application for remedial writs from the judgment of dismissal. Appellee cannot have the judgment reviewed on a motion to dismiss for, as above stated, this Court may not dismiss an appeal because of an alleged insufficiency of the appeal bond. R.S. 13:4579; cf. Irish Levy Electric Co. v. Moss, 176 La. 882, 147 So. 22.

The motion to dismiss is denied.

      . He died subsequently and his heirs were substituted as parties in his place and stead. They are appellants herein.

      . This Court has consistently ruled that Articles 580 and 1059 of the Code of Practice apply only in cases where injury would result if no appointment were made of the tutor, curator or administrator. In State ex rel. Marin v. Judge, 22 La.Ann. 23, the court held that it was proper to grant a suspensive appeal from a judgment dismissing an opposition to the appointment of a dative testamentary executor and administrator, the basis of the opposition being that there was no estate to be administered. To the same effect are State ex rel. Pearson’s Widow v. Parish Judge, 22 La.Ann. 61, where the court made peremptory a writ of prohibition ordering the trial court to grant a suspensive appeal from a judgment appointing a dative testamentary executor; State ex rel. Byrnes v. Sommerville, 110 La. 734, 34 So. 757, holding that a judgment removing a definitive syndic from office was appealable suspensively; Succession of Tyler, 192 La. 365, 188 So. 31, holding that a testamentary executrix was entitled to appeal suspensively from a judgment annulling the testament and Succession of Tullier, 216 La. 821, 44 So.2d 880, where, after a review of the entire jurisprudence, a suspensive appeal was permitted from a judgment dismissing appellant’s application for letters of administration.


text:
    230 La. 41
    JUMONVILLE PIPE AND MACHINERY CO., Inc. v. The FEDERAL LAND BANK OF NEW ORLEANS et al.
    No. 42119.
    Supreme Court of Louisiana.
    March 26, 1956.
    Rehearing Denied May 7, 1956.

      Harold Moses, Doyle, Smith & Doyle, Donald W. Doyle, New Orleans, for defendants-appellants.
    Obier & Middleton, Plaquemine, for ap-pellee.
   MOISE, Justice.

This case is on appeal by the mineral and royalty owners from the judgment of the district court cancelling certain instruments from the Conveyance Records of the Parish of Iberville, Louisiana, to the extent that they evidence the right and interest of defendant-appellants in the property in dispute.

The case is presented on an agreed statement of facts, supported by exhibits. There is no dispute between plaintiff and defendants as to the facts.

The following question is presented to the Court, to which we must apply the law:

“Is the ten year prescription provided by Article 789 of the Revised Civil Code interrupted as to the entirety of plaintiff’s lands, on which there had been no production and on which defendant Federal Land Bank of New Orleans reserved one-half of the minerals, by production not on plaintiff’s lands but within a unitized forced pooling area established by the Commissioner of Conservation which included parts of plaintiff’s acreage? ”

In his judgment, the trial judge said:

“ * * * it is the opinion of the Court that judgment should be rendered in favor of Plaintiff Jumonville Pipe and Machinery Company, Inc., and against the Defendants, The Federal Land Bank of New Orleans, Humble Oil and Refining Company, George H. Echols, I. R. Price, J. B. Ferguson, Jr., Ford M. Graham and W. V. Conover, decreeing that the mineral rights and servitudes reserved by The Federal Land Bank of New Orleans in the sales to said Jumonville Pipe and Machinery Company, Inc. on January 20, 1938 of the property described in Article 8 of the petition herein have prescribed for nonuse as to all lands lying outside of said drilling or pooling Units No. 3 and No. 5 and fully described in Article 35 of the petition herein and that said servitudes have been extinguished and lost to Defendants by prescription liber-andi causa resulting from nonuse of same for ten years and have reverted to Plaintiff as the owner of said land; and ordering the cancellation from the Conveyance Records of Iberville Parish as purporting to affect the property lying outside of said Units 3 and 5 and described as follows: ”

A description of the property then follows in the judgment of the trial judge.

From that judgment, the Federal Land Bank of New Orleans, I. R. Price, Ford Graham, Geeorge H. Echols, J. B. Ferguson, Jr. and W. V. Conover prosecute to this Court a suspensive appeal.

The trial judge has presented an able and well analyzed opinion. His findings correctly portray, in our opinion, the law and the evidence on the subject. In the stipulation agreed upon by the parties, we find the following facts germane to the subject:

On January 20, 1938, the Federal Land Bank of New Orleans sold to Jumonville Pipe and Machinery Co., Inc. seven tracts of land located in Iberville Parish, by seven separate deeds. The Bank reserved to itself one-half of the minerals. At the time of suit the property was, after transfer and re-transfer, owned by the original vendee. Humble Oil and Refining Company was the assignee of leases executed by the Federal Land Bank. The other defendants were royalty owners. No development had been secured on plaintiff’s seven tracts.

On January 15, 1944, Humble Oil and Refining Company received a permit to drill in the Laurel Ridge Field. Adam Hymel No. 1 was brought in and has been continuously producing gas and distillate in paying quantities since' October 21, 1946. This well was not on plaintiff’s property, but it was within the same field.

On July 15, 1944, Humble Oil and Refining Company received a second permit to drill. C. G. Robinson No. 1 was brought in and has been producing gas and distillate in paying quantities since November 21, 1946. This well was in the Laurel Ridge Field, but it was not on plaintiff’s land.

On April 29, 1947, under and in accordance with the authority granted him by Act No. 157 of 1940, LSA-R.S. 30:1 et seq., the Conservation Commissioner issued Orders No. 131-3 and No. 131-5. These were integrating forced pool orders which included Units No. 3 and No. 5 of the Laurel Ridge Field in Iberville Parish. Unit No. 3 contained a portion of each of plaintiff’s seven tracts of land, and Adam Hymel No. 1 was located on it. Unit No. 5 contained a portion of six tracts belonging to plaintiff, and C. G. Robinson No. 1 was located on it.

Plaintiff contends that there has been a division of the advantages of servitude as it affects his lands, and that while prescription was interrupted on the mineral rights covering the land inside the units prescription was not interrupted as it bore on the land outside of the forced units, ten years having elapsed since the reservation of 1938.

Defendants argue that production from a well located in a pooled unit created by an integration order of the Commissioner of Conservation constitutes production from all property within the unit, including property subject to a mineral servitude under the provisions of Act 157 of 1940, LSA-R.S. 30:10, subd. A(l) (b), and constitutes user of the mineral servitude as to the property subject thereto, both inside and outside of the unitized area; and, that this is true whether the well be located on the property subject to said mineral servitude or not.

Article 789 of the LSA-Civil Code provides :

“A right to servitude is extinguished by the non-usage of the same during ten years.”

LSA-Civil Code, Article 656, states:

“The rights of servitudes, considered in themselves, are not susceptible of division, either real or imaginary. It is impossible that an estate should have upon another estate part of a right of way, or of view, or any other right of servitude, and also that an estate be charged with a part of a servitude.
******
“From thence it follows that a servitude existing in favor of a piece of land, is due to the whole of it, and to all the parts of it, so that if the land be sold in parts, every purchaser of a part has the right of using the servitude in toto.”

In Article 657 of the LSA-Civil Code, we find:

“Though the right of servitude be indivisible, and must be established for the whole, and not for a part, nothing prevents the advantage resulting from it from being divided, if it be susceptible of division; as, for example, the right of taking a certain number of loads of earth from the land of another, or of sending to pasture a certain number of animals on the land of another.” (Italics ours.)

In Spears v. Nesbitt, 197 La. 931, 2 So. 2d 650, we held that the parties themselves had in effect divided a servitude for the purpose of development.

Again, in Ohio Oil Co. v. Ferguson, 213 La. 183, 34 So.2d 746, we held that there was nothing so sacramental in the doctrine of indivisibility of servitudes as to prevent the division of the advantage of a servitude, if it be susceptible of division, by agreement of the interested parties. We further held that where acreage covered by a servitude is parceled and owned by different parties, each party has the right to explore, but that if any party does not exercise his right on his parcel within ten years, the right is lost to him.

Act 157 of 1940 had for its purpose the conservation of the oil and gas resources of the State of Louisiana and the prevention of waste and depletion thereof. In Hunter Co., Inc., v. McHugh, 202 La. 97, 11 So.2d 495, this act was declared constitutional. To accomplish the purpose of the act, the Commissioner of Conservation is permitted to establish drilling units, unitize acreage, and control and allocate production. These orders become mandatory after notice is given and the necessity thereof is shown. If, as in the present case, the landowner does not consent to the arrangement, there is forced pooling. In the case of Le Blanc v. Danciger Oil & Refining Co., 218 La. 463, 49 So.2d 855, 857, this Court made the following pronouncement:

“ * * * The lawmakers in adopting Act No. 157 of 1940 as a conservation measure never intended that the orders of the Commissioner of Conservation creating pooling units pursuant thereto should ever have any effect beyond the limits of such Units, and the Commissioner, in issuing Order No. 93-1 on May 18, 1945, creating the 40-acre pooling unit involved in this case not only never intended that it should, but he has not, in fact, endeavored to exercise any jurisdiction- beyond the limits of this unitized area. * * * ”

In the unitization orders herein involved, we find the f olllowing stipulation:

“ * * * the separately owned property interests embraced therein are hereby pooled, unitized, and consolidated into one unit for all purposes of lease and sublease contracts covering said unit, which shall be treated, developed, and operated as one lease, one unit, one property, and one tract for the production of gas and condensate from the 10,600-Foot Sand of the Laurel Ridge Field; and drilling operations, drilling, and production on any of the tracts included within said unit shall constitute drilling operations, drilling, and production under the terms of each and every one of said lease or sublease contracts affecting the property included within said unit. All royalties accruing under lease and sublease contracts on all production of gas and condensate from the 10,600-Foot Sand shall be treated as an entirety and shall be divided among and paid to the separate owners thereof in the proportion that the acreage (mineral rights subject to lease' or sublease of each royalty or overriding royalty owner in said unit) bears to the total acreage in said unit.” (Italics ours.)

The above pronouncement is that the provision applied only to those parts of plaintiff’s tracts within Unit No. 3 and Unit No. 5. By its wording it cannot apply to plaintiff’s acreage outside its area. As stated by the trial judge, the issuance of the orders by the Commissioner of Conservation did not result — (1) in .the creation of any ob-. stacle which prevented the Federal Land Bank of New Orleans, or any other interested party, from using in the area lying outside the drilling units the servitude in the manner contemplated by the reservation, or (2) have the slightest effect upon their right to do so.

Defendants’ lessee, Humble Oil and Refining Company, applied to the Commissioner of Conservation for establishment of Units No. 3 and Ño. 5 (stated in brief). The only objection raised was by the owner of the land, who feared interrupting prescription. There was no objection on the part of the other defendants.

Therefore, the orders of the Commissioner of Conservation had the effect of reducing the acreage covered by the original mineral reservation by the Federal Reserve Bank and extending the prescription as to the portions of the seven tracts included within Pooling Units No. 3 and No. 5; However, the prescription provided by the articles of the Revised Civil Code, cited supra, is applicable to the mineral servitude existing on the portions of plaintiff’s seven tracts located outside of the pooling units. See, Ohio Oil Co. v. Kennedy, La.App., 28 So.2d 504, certiorari denied, which held that Act No. 157 of 1940 did not repeal the articles of the Civil Code with respect to prescription.

The facts in the case of Childs v. Washington, 229 La. 869, 87 So.2d 111, are similar to those in the instant matter. In an ably reasoned decision, Chief Justice Four-net stated:

“It logically follows, therefore, that if the landowner and the mineral owner can by agreement extend the servitude as to a portion only of the acreage without by such act interrupting the tolling of prescription as to the servitude on the remainder of the tract, as held in Elson v. Mathewes [224 La. 417, 69 So.2d 734], and if the mineral owner can divide the advantages of a servitude by assigning to a third person all of his interest in a designated portion of the land affected by the servitude and create a situation whereby-user of a portion would not hold the remainder, as held in Ohio Oil Co. v. Ferguson [213 La. 183, 34 So.2d 746], and Byrd v. Forgotson [213 La. 276, 34 So.2d 777], then clearly when the Commissioner of "Conservation, acting for the State in the exercise of i'ts police power, by his orders and after due hearing, included within a unit or units portions -of a tract as to which owners had failed -to agree to pool their interests for development purposes, his act produced the same result as if the parties had formed a drilling unit by convention and for development purposes had reduced the servitude to that extent.”

In the case of Elson v. Mathewes, 224 La. 417, 69 So.2d 734, 735, we held:

“Here, plaintiffs and the defendant, in the unitization and pooling contract, agreed to an interruption of prescription as.to the 40-acre tract, within the Dowling Unit, thereby extending the servitude as to it. However, the agreement made no mention of, and did not relate to, the remaining 51 acres (involved in this suit); and this omission along with the failure to drill on or otherwise use the 91 acres during the prescriptive period, resulted in 1947 in an extinguishment of the servitude to such extent. * * *”

Therefore, it should logically follow that the mineral servitude on the portions of the seven tracts included in Orders Nos. 131-3 and 131-5 has been extended by production and kept alive. The servitude on the portions of the seven tracts not included in the orders have become extinguished because of non-use during ten years.

The case of Hunter Co., Inc., v. Shell Oil Co., Inc., 211 La. 893, 31 So.2d 10, relied on by the defendants, is not applicable. The orders of the Conservation Commissioner were similar to those in the present controversy, but the case involved the indivisibility of the obligation of drilling under a contract of lease, not a reduction of acreage covered by a mineral servitude.

For the reasons assigned, the judgment of the trial court is affirmed at defendants’ costs.

McCALEB, J., concurs for the reasons assigned in Childs v. Washington, 229 La. 869, 87 So.2d 111.


author: HAWTHORNE, Justice.

text:
    230 La. 52
    Luciel Turner Brown HOWARD v. Theodore HOWARD.
    No. 42067.
    Supreme Court of Louisiana.
    May 7, 1956.
    Eugene J. Coen, Shreveport, for plaintiff-appellant.
    Seals & Robinson, Homer, for defendant-appellee. ,
   HAWTHORNE, Justice.

Luciel Turner Brown Howard instituted this suit to have declared null and void the sale of a lot in the Town of Homer, Claiborne Parish, Louisiana. The property was sold by one of the defendants, Theodore Howard, from whom plaintiff is now divorced, to the other defendant, his sister, May O. Roberts. Plaintiff alleges that this property belonged to the community of acquets and gains which existed between her and her husband, that the sale was made during the existence of their marriage as a result of a conspiracy between her husband and the vendee to defraud her of her interest in this community property, and that the transaction was simulated. After trial on the merits there was judgment rejecting plaintiff’s demands and dismissing her suit, and she appealed to this court.

The act of sale which plaintiff seeks to have set aside recites a consideration of $2,800. If we accept this amount as the value of the property described in the deed, under the facts of this case the most that the plaintiff could recover, even if she should succeed in having the sale set aside, would be an undivided one-half interest in the property, worth approximately $1,400. Consequently $1,400 is the only amount in dispute in this cause and is far below the amount necessary for the appellate jurisdiction of this court. See Angelette v. Hardie, 223 La. 167, 65 So.2d 126. Accordingly this appeal will be transferred to the proper Court of Appeal.

It is ordered that this appeal be transferred to the Court of Appeal, Second Circuit, provided that the record be filed in that court within 30 days from the date this judgment becomes final; otherwise the appeal will be dismissed. Costs in this court are to be paid by appellant.

      . Under the jurisprudence if a conveyance is a pure simulation it is without legal effect and has no existence in fact, and the sale is set aside in its entirety. See Radovich v. Jenkins, 123 La. 355, 48 So. 988; Citizens’ Bank & Trust Co. v. Willis, 183 La. 127, 162 So. 822. See also Thompson v. Thompson, 211 La. 468, 30 So.2d 321.


author: MOISE, Justice. HAWTHORNE, Justice McCALEB, Justice HAMITER, Justice

text:
    230 La. 55
    STATE of Louisiana v. Everett McQUEEN.
    No. 42417.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Rehearing Denied May 7, 1956.
    Vincent Hazleton, Alexandria, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., Ben F. Thompson, Dist. Atty., A. M. D’Angelo, Asst. Dist. Atty., Edwin O. Ware, Asst. Dist. Atty., Alexandria, for appellee.
   MOISE, Justice.

E. R. McQueen appeals from a judgment of conviction and sentence'—

(a) To pay a fine of $350 and cost, and in default thereof to serve six months in the parish jail;
(b) In addition thereto, to serve six months in the parish jail.

Innumerable bills of exception were perfected during the trial. In our opinion, bill of exception #2 is decisive of the issue in this case. It was taken to the trial court’s overruling the motion to quash a defective information charging—

“that Everett R. McQueen on or about the 22nd day of July A.D, 1954, in the Parish, District and State aforesaid * * * did wilfully, maliciously and feloniously commit gambling as denounced by Louisiana Revised Statutes, Title 14, Sec. 90.”

In Section 90 of Title 14 of the LSA-Revised Statutes, gambling is defined as the intentional conducting, or directly assisting in the conducting, as a business, of any game, contest, lottery, or contrivance whereby a person risks the loss of anything of value in order to realize a profit.

The above information has not been amended by the district attorney, although he has filed an answer to a bill of particulars. The accused asserts that such answer forms no part of the information, nor does it amend the information charging the crime, and that its sole purpose is to restrict the State’s proof, Appellant urges that this bill of information is fatally defective for the cause and reason herein set forth and moves that the same be quashed, annulled and set aside for the following reasons:

“1. That the bill of information does not charge particularly whether the accused was intentionally conducting or whether he was directly assisting in the conducting of any game, contest or contrivance.
“2. That the bill of information does not name or define any particular game, contest, lottery or contrivance, as set forth in the statute, of which defendant is accused of conducting.
“3. That it does not name any person who risked the loss of anything of value in order to realize a profit.
“4. That it does not specifically name anything of value which might have been risked.
“5. That it does not name ‘what profit was sought to be realized.’
“6. That the bill of information is fatally defective in that it fails to inform the accused of the nature and cause of. the accusation against him as required by, Section 10 of Article I of the Constitution of Louisiana of the year 1921.
“7. That the bill of information merely states a conclusion of law, without detailing, the facts and circumstances upon which the conclusion is based, contrary to the mandatory provisions of law and the constitution of Louisiana and particularly Article 227 of the Code of Criminal Procedure of Louisiana [LSA-R.S. IS :227] and 'Section 10, Article I of the Constitution of Louisiana for the year 1921.
“8. That said bill of information does not set out any offense as denounced by any law of the State of Louisiana but merely sets out a conclusion of law.
“9. That said bill of information does not set out the time, place and manner or device or contrivance in which it is claimed that the alleged offense was committed.
“10. That said bill of information is too vague and indefinite to permit the mover to prepare his defense to the alleged offenses therein charged against him.
“11. That the offenses charged are so vague and indefinite that it is not sufficient to inform the court of the offense charged so that, the court may properly regulate evidence sought to be introduced.
“12. That said bill of information is so vague and indefinite it is not sufficient on its face to sustain a plea of former jeopardy in an attempt to try the defendant more than once for the same offense.
“13. That the information in the case at bar does not allege a single fact or circumstance upon which the offense is based and there is nothing in it from which the accused can tell definitely, or even guess, what acts he is charged with having done.”

In overruling the motion to quash, the trial judge stated that he was governed by the pronouncement of this Court in the case of State v. Davis, 208 La. 954, 23 So.2d 801, 802. The information in that case reads:

“* * * defendant, J. L. Davis, on or about the 2d day of August, 1944, in the named parish, ‘did commit the crime of gambling as defined by Article 90 of the Louisiana Criminal Code.’ ”

In the present case the State contends that the information, if defective, was cured by the answer filed by the district attorney pursuant to defendant’s motion for a bill of particulars. This, we believe, is an erroneous assumption. On November 7, 1955, Justice Simon, as organ of the Court in the case of State of Louisiana v. Dabbs, 228 La. 960, 84 So.2d 601, 602, stated:-

“Irrespective of what may be contained or set forth in the bill of particulars relied on by the defendant to support his contention presented by these bills, we are not concerned therewith. * * * There can be no prosecution on a bill of particulars. Nor can the contents of a bill of particulars, whatsoever is set forth therein, alter, change, amend or affect the bill of information. A bill of particulars can neither create a defect in a bill of information nor remedy a defective one. * * *”

The answer to a bill of particulars cannot alter nor change a faulty information, and it is inconceivable to even think that the defendant could prepare his defense tinder the present information that he “did wilfully, maliciously and feloniously commit gambling as denounced by Louisiana Revised Statutes, Title 14, sec. 90.”

The proviso relied on by the State reads:

“* * * that in all cases of crimes included in the Criminal Code but not covered by the short forms hereinbe-fore set forth, it shall be sufficient to charge the defendant by using the name and article number of the offense committed.” LSA-R.S. 15:235.

The crime of gambling has been omitted in the enumerations made in the statute, and this omission constitutes a presumption in law. The old legal maxim, “Ex-pressio unius est exclusio alterius — the express mention of one thing implies the exclusion of another”, is applicable here.

The Constitution ordains, in Article 19, § 8, LSA, that gambling is a vice and that the Legislature shall pass laws to suppress it. That article is not self-operative. It takes an enabling act to bring about the suppression of gambling. The Legislature passed laws suppressing various forms of gambling, and the enumerations are so numerous that we tire in the repetition thereof.

In this case the information is based on conclusions of law, which are legal abstractions affording no protection. The United States Supreme Court has spoken and provided a test in such instances. It stated that the test is not whether it (the information) could have been more definite or certain, but whether the information contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. See, Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 630, 39 L.Ed. 704; Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 435, 480, 40 L.Ed. 606. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861.

Then again, in Bartell v. United States, 227 U.S. 427, 33 S.Ct. 383, 384, 57 L.Ed. 583, the Supreme Court said:

“It is elementary that an indictment, in order to be good under the Federal Constitution and laws, shall advise the accused of the nature and cause of the accusation against him, in order that he may meet the accusation and prepare for his trial, and that, after judgment, he may be able to plead the record and judgment in bar of further prosecution for the same offense.”

See, United States v. Debrow (United States v. Wilkinson, United States v. Brashier, United States v. Rogers, United States v. Jackson), 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92.

Fundamentally, courts should be for the man, his life, his liberty and his property. The only sure and safe guard for the courts is a strict adherence to the constitutional provisions of law. The habit of mind which consents to the perpetuation of a mistake when some temporary good in a prosecution may be accomplished should be avoided. It is against such inadvertent mistakes that our courts and the people should indulge all of their jealousies and exhaust all of their precautions.

In State v. Varnado, 208 La. 319, 23 So. 2d 106, 124, our own Court expressed a contrary view to that expressed in the Davis case, supra. The information in that case was—

“That Varnado and Blackwell, on July 8, 1944, did intentionally conduct and directly assist in the conducting, as a business, of a game, contest and contrivance whereby a person risked money and things of value in order to realize a profit, contrary to the form of the statutes of the State of Louisiana, in such cases made and provided $ * ‡ »

In setting aside a conviction and sentence and sustaining a motion to quash in that case, this Court stated:

“The information in the case at bar does not allege a single fact or circumstance upon which the offense is based. There is nothing in it from which the accused can tell definitely, or even guess, what acts they are charged with having done. All that appears from the information is that, in the opinion of the district attorney, the accused were guilty of intentionally conducting and directly assisting in the conducting, as a business, of a game, contest, and contrivance whereby a person risked money and things of value in order to realize a profit. There is certainly nothing in this information that informs the accused or the court on just what acts allegedly committed by the accused the prosecuting attorney bases his conclusion that they have been guilty of the offense sought to be charged. This information, therefore, lacks the two essential requirements that give it life. It does not give the accused enough information to enable them to prepare their defense and it is, in no sense of the word, sufficiently definite to be of any value as a bar to further prosecution.
******
“It is elementary that an indictment or information lacking the averments necessary to apprise the accused of the nature and cause of the offense with which he is sought to be charged constitutes no indictment at all and that such a defective indictment or information cannot form the basis of a prosecution, and while the legislature may authorize changes in the form of indictments or informations * * * as it did more recently when it adopted the Code of Criminal Procedure, wherein the forms of indictments and informations in certain cases have been further simplified by eliminating the unnecessary and complicated verbosity of those common law forms,— we do not find anywhere in the Code of Criminal Procedure provision that an accused charged in an indictment or information that totally fails to apprise him of the acts on which the offense with which he is sought to be charged is based must probe the innermost recesses of the prosecuting attorney’s mind in an effort to ascertain just what acts of his the attorney thinks constitute a crime.”

In the recent case of State of Louisiana v. Blanchard, 226 La. 1082, 78 So.2d 181, we stated:

“As a general rule where an indictment follows the language of the statute it is sufficient, but this rule is without application where the words of the statute do not sufficiently describe or legally characterize the offense denounced. Where a statute characterizes the offense in general or generic terms, an information charging an offense in the words of the statute is insufficient and the specific facts on which the charge is based must be set out in the information. State v. Varnado, on rehearing, 208 La. 319, 368, 23 So.2d 106. See also State v. Holmes, 223 La. 397, 65 So.2d 890; United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588.”

Again we quote from the Varnado case, •supra:

“In any event, we find no provision in the Code of Criminal Procedure requiring that an accused ask for a bill of particulars except when the form of the indictment or information used is as prescribed in Article 235 (the short form of indictments and informations) in certain cases, gambling not being one of these. In this article it is made discretionary with the trial judge to require the district attorney to furnish a bill of particulars if it has been requested by the accused prior to arraignment. On the contrary, the code specifically declares that ‘Defects in indictments can be urged before verdict only by demurrer or a motion to quash, and the accused is not entitled to any bill of particulars as to the subject-matter charged in the indictment, but the trial judge may, in his discretion, require the district attorney to file in the case such data as, in the opinion of the judge, may be sufficient.’ Article 288. Articles 284 and 286 are to the same effect. Title XX of the Code of Criminal Procedure deals with the ‘Pleadings and Proceedings After Indictment and Before Trial,’ and articles 284 — 288 are to be found in Chapter 6 of this title under the heading ‘Demurrers and Motions to Quash,’ wherein the remedies of an accused who feels the indictment is not sufficient to properly apprise him of the nature and cause of the offense are specifically set out.”

In State v. Pettifield, 210 La. 609, 27 So.2d 424, 427, we stated:

“The information voluntarily furnished by the district attorney in response to the bill of particulars previously filed by counsel for the relator merely giving the name and age of the child and the dates on which he failed to attend school cannot cure a fatally defective indictment for, ‘A bill of particulars cannot * * * in any way aid an indictment or information fundamentally bad.’ State v. Bienvenu, 207 La. 859, 22 So.2d 196, 198. The author of the opinion in that case very aptly pointed out that 'The sole office of a bill of particulars is to give the adverse party information which the pleadings by reason of their generality do not give and to compel the State to observe certain limitations in offering evidence.’ See, also, 31 C.J. 752, Section 310; 42 C.J.S., Indictments and Informations § 156; and 27 Am.Jur. 672, Section 112. -And the observation by the court in the Bienvenu case that the ‘defendant is not being prosecuted on the bills of particulars, but solely on the informations,’ is also applicable here.” See also, State v. Espinosa, 223 La. 520, 66 So.2d 323.

It is easier .to find fault with remedies proposed (as in the Davis case, supra) than to propose remedies that are faultless; nevertheless, the view now taken crystallizes the jurisprudence in conformity with the mandate of the Constitution, and we hold that the information in the instant case does not meet the requirements of the law.

For the reasons assigned, the conviction and sentence are set aside, and the motion to quash is sustained.

HAWTHORNE, Justice

(dissenting).

In this case the defendant was charged with the crime of gambling as denounced by R.S. 14:90 in an information using merely the name and article number of the offense committed as authorized by R.S. 15 :235. He filed a motion for a bill of particulars, and the State prior to trial informed him that the offense was committed on July 22, 1954, in Alexandria, an incorporated municipality, at the Melody Grill, which was owned and operated by him, and that he intentionally conducted or directly assisted in conducting as a business a gambling game whereby bets were taken on baseball games and persons risked the loss of something of value in order to realize a profit. Under these facts I do not think that defendant in this case can successfully urge that he had not been informed of the nature and cause of the accusation against him.

Article 1, § 10, of the Louisiana Constitution requires that “In all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him * * * Thus, in every criminal case the accused prior to trial is entitled to this information as a constitutional right. The Constitution, however, does not require that the indictment furnish him with this information, nor is there any prohibition in the Constitution against informing him of the nature and cause of the accusation by means of a bill of particulars. Consequently, if the bill of particulars furnished to the accused at his request prior to trial furnishes him with such information, how can he be heard to say that he has not been informed of the nature and cause of the accusation against him, or that his constitutional right has not been fully protected ?

The holding of the majority in the instant case is contrary to, and in direct conflict with, the holding of this court in State v. Davis, 208 La. 954, 23 So.2d 801. In that case, as in this one, the defendant was charged with the crime of gambling as denounced by Article 90 of the Criminal Code in a short form of information using merely the name and article number of the offense committed, as authorized by Article 235 of the Code of Criminal Procedure. In answer to defendant’s motion for a bill of particulars the State gave him full information as to the offense. In the Davis case we held that a short form of indictment or information, when amplified by an answer to a motion for a bill of particulars, fully complies with the constitutional requirement that the accused shall have the right to be informed of the nature and cause of the accusation against him.

The decision of the majority in the instant case also seems to me to be in conflict with the holding of this court in State v. Nichols, 216 La. 622, 44 So.2d 318, 319, in which this court said:

“Finally, our Court has completely put at rest, and the jurisprudence is now settled (although some may contend not theoretically correct) that in the codal article providing the short form of indictment the provision to the effect that the district attorney may be required to furnish a bill of particulars setting forth more specifically the nature of the offense charged amply protects the defendant’s constitutional guarantee that he shall be fully informed of the nature and character of the accusation. State v. Chanet, 209 La. 410, 24 So.2d 670; State v. Davis, 208 La. 954, 23 So.2d 801, and State v. Iseringhausen, supra [204 La. 593, 16 So.2d 65, 69].” See also State v. Holmes, 223 La. 397, 65 So.2d 890, and authorities therein cited.

Although all members of this court subscribed to the holding in the Nichols case, supra, we evidently were in error when we stated in the opinion in that case that this court had completely put at rest the question there presented, and presented again in the instant case.

I respectfully dissent.

McCALEB, Justice

(dissenting).

Article 235 of the Code of Criminal Procedure, as amended by Act 223 of 1944, R.S. 15:235, after setting forth the short forms of indictments which may be used in certain specified offenses, declares:

“Provided that in all cases of crimes included in the Criminal Code but not covered by the short forms hereinbe-fore set forth, it shall be sufficient to charge the defendant by using the name and article number of the offense committed.”

Since gambling is not included in the list of crimes for which special short forms are provided by the statute, the prosecution in this case adopted the prerogative accorded it by the above quoted provision and simply alleged in the bill of information that defendant did commit gambling as denounced by the Criminal Code. The charge as thus made is clearly sanctioned by R.S. 15:235 and has heretofore been approved by this court under identical allegations and circumstances in State v. Davis, 208 La. 954, 23 So.2d 801.

The majority opinion, denying the State its statutory right to charge the crime of gambling, Article 90, Criminal Code, in the manner set forth by the proviso of R.S. 15:235, is based partially on an elimination of gambling from the effect of the statute under the maxim “expressio unius est ex-clusio alteráis” which is applied on the theory that gambling must be omitted because a special short form has not been enumerated for it.

It suffices to say that this deletion of gambling from the scope of R.S. 15:235 obviously ignores the fact that gambling, being an offense set forth in the Criminal Code, is necessarily included in the proviso of the statute. Accordingly, forasmuch as the proviso of Article 235, in plain and explicit terms, authorizes the charge as drawn in the instant case, the majority ruling would appear to be without substantial foundation unless it be, as also determined by the prevailing opinion, that prosecution by the procedure employed herein deprives the defendant of his constitutional right to be informed of the nature and cause of the accusation, vouchsafed by Section 10 of Article 1 of the Constitution.

In approaching a discussion of this question, it is to be borne in mind that the above quoted provision is just as much a part of Article 235 of the Code of Criminal Procedure as the special short forms thferein set forth for certain designated offenses. Indeed, by the unequivocal language of the provision, an omnibus short form is supplied for all offenses included in the Criminal Code which are not otherwise covered by the Article. This being so, there is plainly no basis for the conclusion that defendant is shorn of his constitutional rights by the short form employed herein as it has been many times decided by this Court that the short forms provided by Article 235 for specific crimes are not violative of a defendant’s right to be apprised of the nature and cause of the accusation.

The rationale of the many cases decreeing the validity of the short forms is that the provision contained in Article 235, that the district attorney may be required to furnish a bill of particulars “setting up more specifically the nature of the offense charged”, safeguards the rights of the accused and affords adequate protection to him for fulfillment of the constitutional guarantee that he shall be apprised of the nature and cause of the accusation.

The majority, in overruling the Davis case, indicates that that decision is contrary to State v. Varnado, 208 La. 319, 23 So.2d 106; State v. Pettifield, 210 La. 609, 27 So.2d 424 and State v. Blanchard, 226 La. 1082, 78 So.2d 181. In thus concluding, it seems to me that the majority opinion fails to discern that the Varnado, Pettifield and Blanchard cases are clearly distinguishable from the Davis case and the instant one in which bills of information were drawn pursuant to the short forms authorized by Article 235.

The prevailing opinion on rehearing in State v. Varnado may be justified on the ground that the bill of information there considered was not brought under the short form provided by Article 235, as amended. Had it been otherwise, it is only reasonable to assume that the Court would have decided cómformably with State v. Davis, which was adjudicated less than a month after the Yarnado case became final.

In State v. Pettifield, supra, the defendant was charged with violating the compulsory attendance school law, Act 239 of 1944. As the offense is not one included in the Criminal Code, R.S. 14:1-14:140, the short form provided by Article 235 was not available to the prosecution and, therefore, the ruling in the Varnado case was applicable. In the same category is our recent decision in the Blanchard case wherein defendants were charged under a special statute, R.S. 56:366, making it unlawful to possess a mechanical device for the purpose of taking commercial fish.

The ruling in the case at bar produces an odd result. The defendant initially came into court requesting a bill of particulars so that he could be advised of all of the facts and circumstances on which the gambling charge was based. He was furnished the necessary information by the answer of the State. Despite this, he now claims effectively that he has been denied a constitutional right because the data that has already been furnished at his request is not stated in the bill of information. The Constitution guaranteed defendant the right to be apprised of the nature and cause of the accusation; it did not specify that the prosecution shall be abated if the necessary information is not stated in the bill of information or indictment. On the contrary, as above pointed out, all of the cases upholding the short forms provided by Article 235 are predicated upon the premise that the bill of particulars, which is available to defendant under specific provisions, sufficiently protects him in his constitutional rights.

The majority opinion cites the Varnado and Pettifield cases as authority for the proposition that a bill of particulars cannot amend an indictment or information. Conceding that this is the prevailing rule in Louisiana, it does not follow that the information given in a bill of particulars may not be considered in determining whether the constitutional rights of an accused to be informed of the nature and cause of the accusation have been violated.

I respectfully dissent.

HAMITER, Justice

(dissenting).

This court has variously remarked that a bill of indictment is amended, State v. Brooks, 173 La. 9, 136 So. 71, State v. Lemoine, 178 La. 1070, 152 So. 907, State v. Smith, 179 La. 614, 154 So. 625, or is amplified, State v. Miller, 170 La. 51, 127 So. 361, State v. Davis, 208 La. 954, 23 So. 2d 801, by the filing of a bill of particulars which furnishes to the accused details of the offense needed in the preparation of his defense. In all other cases the observation has been made that a bill of particulars does not become and cannot be considered as a part of the indictment.

But whether or not an indictment is amended, amplified, reformed or otherwise changed by a bill of particulars is a question of no particular significance here. Greatly important in deciding this cause are our uniform holdings that the necessary details furnished by means of the bill of particulars effectively satisfy the constitutional requirement of informing the accused of the nature and cause of the accusation lodged against him under a simplified form listed and described in LSA-R.S. 15:235. State v. Pete, 206 La. 1078, 20 So.2d 368, State v. Chanet, 209 La. 410, 24 So.2d 670, State v. Nichols, 216 La. 622, 44 So.2d 318, State v. Holmes, 223 La. 397, 65 So.2d 890 (and cases therein cited). If these holdings be correct (I consider them so) it must necessarily follow that with respect to a charge made by using the codal name and article number of the offense committed, as was done in this cause under a specific authorization contained in the above mentioned statutory provisions, such constitutional requirement is likewise satisfied by a bill of particulars which furnishes to the accused the pertinent and necessary details. The effect of a contrary conclusion is to overrule the cases mentioned above and nullify LSA-R.S. 15 :235 in its entirety.

I respectfully dissent.

      . See State v. Miller, 170 La. 51, 127 So. 361 (larceny); State v. White, 172 La. 1045, 136 So. 47 (murder); State v. Capaci, 179 La. 462, 154 So. 419 (murder); State v. Pete, 206 La. 1078, 20 So.2d 368 (theft) ; State v. Ward, 208 La. 56, 22 So.2d 740 (negligent homicide); State v. Chanet, 209 La. 410, 24 So.2d 670 (aggravated rape) and State v. Nichols, 216 La. 622, 44 So.2d 318 (manslaughter).

      . Also cited and quoted from is State v. Dabbs, 228 La. 960, 84 So.2d 601, wherein it is again observed, on authority of the Yarnado and Pettifield cases, that a bill of particulars cannot amend an indictment. It was because of this statement, which I do not believe reflects the settled jurisprudence of this Court as shown by the decisions to the contrary cited by me in footnote No. 3 herein, that I did not sign the opinion in the Dabbs case and merely concurred in the decree,

      . But see State v. Miller, 170 La. 51, 127 So. 361; State v. Lemoine, 178 La. 1070, 152 So. 907; State v. Brooks, 173 La. 9, 136 So. 71; State v. Davis, 208 La. 954, 23 So.2d 801 and State v. Smith, 179 La. 614, 154 So. 625.