author: SIMON, Justice. HAMITER, Justice

text:
    229 La. 495
    William W. MESSERSMITH, Jr. v. Mrs. Hilda Louise St. Martin MESSERSMITH.
    No. 41947.
    Supreme Court of Louisiana.
    Feb. 20, 1956.

      James G. Schillin, New Orleans, for defendant and appellant.
    Harry P. Gamble, Jr., New Orleans, Gamble & Gamble, New Orleans, of counsel, for plaintiff and appellee.
   SIMON, Justice.

On June 5, 1947, Mrs. Hilda Louise St. Martin Messersmith filed suit for a separation from bed and board against her husband, William W. Messersmith, Jr., the temporary care, custody and control of their minor child and an award of alimony pen-dente lite for the maintenance and support of herself and ■ child. As an incident to said suit, the district judge granted the provisional care,' custody and control of said child to the plaintiff-wife and issued a re-' straining order prohibiting the husband from disposing of or alienating community assets. Rules nisi previously issued were made absolute and after due hearing the defendant-husband was condemned to pay' alimony pendente lite to plaintiff for the maintenance and support of herself and minor child in the sum of $225 per month, beginning July 1, 1947. A preliminary injunction was issued against the defendant and Woodward-Wight & Co., Ltd., restraining and enjoining either or both from disposing of the shares of stock in Woodward-Wight & Co., Ltd., bearing the name of defendant-husband, and he was further enjoined from disposing of. or encumbering other community assets.

The defendant-husband entered, in effect, a' general denial, and in assuming the position of plaintiff-in-reconvention prayed for a judgment of separation from bed and board in his favor for causes alleged. After a trial on the merits,’ judgment was rendered on March 8, 1949 and signed on March 25, 1949, dismissing plaintiff-wife’s ■demand, and awarding a separation from bed and board in favor of the husband; custody of the minor child was awarded to the husband; and no provision was made for alimony in favor of the wife.

On March 11, 1949, during the interim between the date the judgment was rendered and the date it was signed, the wife sought by motion to have the alimony pen-dente lite awarded to her by judgment of July 1, 1947, increased. The lower court denied her demand, and on appeal before us the judgment denying the relief sought by her was affirmed.

On April 8, 1949, the husband filed a separate suit for divorce on the statutory ground of two years’ separation. He alleged that the original separation of the spouses was due. to the fault of the defendant-wife and in substantiation thereof incorporated the entire record of the suit for separation from bed and board filed by his wife. He also sought the permanent care, custody and control of his minor son.

For answer the defendant-wife entered, in effect, a general denial and alleged that the fault of their separation rested solely with plaintiff. Assuming the position of plaintiff-in-reconvention she sought a judgment of divorce in her favor, custody of their child, alimony for herself and child, and an injunction prohibiting the disposal or alienation of any community assets.

On October 20, 1949, the district judge rendered judgment granting a divorce in favor of the husband. The defendant-wife’s demands were dismissed except she was awarded the custody of the child with reservation of the right to claim alimony for his support from the father. The judgment further ordered the taking of an estimative and descriptive inventory of all community assets and a partition thereof between the parties. Pending said partition the husband was enjoined from disposing of or alienating community assets in his possession or under his control until the final disposition of. the respective rights of. the parties. From this judgment no appeal was taken by either party.'

Subsequent to the final decree of divorce the parties entered into a written stipulation agreeing and consenting to an amicable liquidation and partition of a considerable part of the property forming the community of acquets and gains existing between them in lieu of a formal notarial act of partition, the contested issues being left for determination of and judgment by the district court, predicated upon a stipulation of facts and admissions. Giving full force and effect to the stipulations and agreements entered into by -the parties, the district court rendered judgment partitioning the community effects and decreeing the relief to which, in his opinion, each party was entitled. The defendant-wife has appealed, assigning specific errors to the portions of said’ judgment prejudicial to her; and the husband has answered the appeal.

Counsel for both parties, in briefs and oral arguments, having limited their appeals to the errors assigned as prejudicial to their respective interests, we shall consider these alleged errors in the order reflected by the judgment.

Under Article II of the judgment of the district court it was decreed that the 225 shares of stock of Woodward-Wight & Co., Ltd., and the 13 shares of stock of Republic Steel Corporation to be the property of the community and that said stock should be equally divided between the parties. Neither party contested the partition in kind of the Republic Steel Corporation stock. However, the husband, who is an employee of Woodward-Wight & Co., Ltd., contends that the Woodward-Wight stock should not be divided in kind, but that he should be allowed to retain all of--said stock and pay to his wife one-half of its book value and asserts, in support thereof, a provision in the charter of the Woodward-Wight & Co., Ltd., which provides that before any stockholder can sell stock he must first offer the same to his co-shareholders or to the officers of the corporation. Obviously, the purpose of this restrictive provision was to retain in the officers and employees the ownership of the stock of said company.

Under the expressed provisions of our LSA-Civil Code, “Every marriage contracted in this State, superinduces of right partnership or community of acquets or gains, * * * ” Article 2399, and “This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband'and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone, attended to, and not the person who made the purchase. * * * ” Article 2402. ■ .

There is nothing more fundamental in our law than the rule of property which declares that this community is a partner- , ship in which the husband and wife own equal shares, their title thereto vesting at the very instant such property is acquired. Dixon v. Dixon’s Ex’rs, 4 La. 188, 23 Am. Dec. 478; Theall v. Theall, 7 La. 226, 26 Am.Dec. 501; Succession of Marsal, 118 La. 212, 42 So. 778; Succession of May, 120 La. 692, 45 So. 551; Beck v. Natalie Oil Co., 143 La. 153, 154, 78 So. 430; Ramsey v. Beck, 151 La. 190, 91 So. 674; Phillips v. Phillips, 160 La. 813, 107 So. 584; Pfaff v. Bender, D.C., 38 F.2d 642; Bender v. Pfaff, 282 U.S. 127, 51 S.Ct. 64, 75 L.Ed. 252; Succession of Wiener, 203 La. 649, 14 So.2d 475.

We have repeatedly adhered to the doctrine that the half ownership of the wife in the community effects, its status not resting upon the mere gratuity of the husband, is entitled to a dignity equal to that of the husband’s; and upon its dissolution and liquidation the wife is' entitled to secure the delivery of this one-half right and ownership into her own exclusive management and control; and the courts have no discretion or- power whatever to award her less.'

Our codal laws also declare that after the marriage the spouses can do nothing to alter the effect between themselves of our community laws. LSA-C.C. 2329.

Plaintiff-appellee, however, seeks to alter our community law provisions or the status of the Woodward-Wight stock in question, asserting that the restrictive provisions in the charter prevent the recognition of the wife’s one-half right and ownership thereof and her right to be delivered in kind the interest falling to her.' His position is wholly untenable. The restriction in the charter cannot affect the status of the stock purchased during the existence of the community or the rights the wife may assert thereunder. Such a restriction cannot negative the wife’s present interest as a co-owner, and as a co-owner in community-she is clearly entitled to be recognized as such and obtain the exclusive management and control of her vested interest. Succession of Helis, 226 La. 133, 75 So.2d 221; Land v. Acadian Production Corporation of Louisiana, D.C., 57 F.Supp. 338; Henderson’s Estate v. Commissioner of Internal Revenue, 5 Cir., 155 F.2d 310, 164 A.L.R. 1030.

Under Article IV of the lower court’s judgment, a certain Woodward-Wight & Co., Ltd., group annuity certificate was declared to be valueless, and for that reason was held to form no part of the assets of the community existing between the spouses.

■ The descriptive and estimative inventory of the community shows that on December 1, 1942, during the marriage of the litigants, the Equitable Life Assurance Society issued to plaintiff an individual employee certificate, being identified with a group annuity plan of Woodward-Wight & Co., Ltd., It is conceded that payment of the premiums of the retirement plan in the sum of $543.50 were made from community funds. Plaintiff admits that he should account for the cash surrender value of certain other policies listed on the inventory, but contends that the group annuity certificate had no cash or loan value on the date of dissolution of the community and would never have a cash or loan value at any time except upon his resignation or retirement as an employee of Woodward-Wight & Co., Ltd., or upon his death.

The defendant-wife contends that this individual certificate of insurance having been taken out during the marriage and being an asset of the community she is entitled to be recognized as the owner of an undivided one-half interest therein, even though at the present time it has no value. Alternatively, she contends that the community should be credited in the final accounting for the amount -of .community funds contributed to the annuity plan for the benefit of the husband.

At the outset it must be recognized that life insurance-policies made payable to the insured, or to his executors, administrators, or assigns, are community property if taken out during the marriage. Estate of Moseman, 38 La.Ann. 219; Succession of Buddig, 108 La. 406, 32 So. 361; Succession of Verneuille, 120 La. 605, 45 So. 520; and Succession of LeBlanc, 142 La. 27, 76 So. 223, L.R.A. 1917F, 1137.

Group annuity policies, such as the one here involved, have no reserve or cash surrender value before the happening of the event on which the insurance becomes payable. Consequently, the individual certificate under the annuity plan had no value as a tangible asset on March 25, 1949, the date of dissolution of the community by judgment of separation from bed and board. However, irrespective of its value or lack thereof, it is an asset to be inventoried and ultimately subject to partition between the spouses to the extent of their respective interests and rights.

Article 460 of the Revised Civil Code provides:

“Things are divided, in the second place, into corporeal and incorporeal.
******
“Incorporeal things are such as are not manifest to the senses, and which are conceived only by the understanding; such as the rights of inheritance, servitudes and obligations.” (Emphasis ours.)

Under Article 470 of the Code, “Incorporeal things, consisting only in a right, are not of themselves strictly susceptible of the quality of movables or immova-bles; nevertheless they are placed in one or the other of these classes, according to the object to which they apply and the rules hereinafter established.”

Under Article 475, “All things corporeal or incorporeal, which have not the character of immovables by their nature or by the disposition of the law, according to the rules laid down in this title, are considered as movables.”

Under Article 870, “The ownership of things or property is acquired by inheritance either legal or testamentary, by the effect of obligations, and by the operation of law.”

Under these definitions, we are of the opinion that the individual certificate of insurance under the group annuity plan was an incorporeal, movable thing acquired by the husband during his marriage with appellant and therefore constituted an asset of the community. This certificate, irrespective of its value or its lack of value at the time of the dissolution of the community, being an incorporeal, movable thing, is property as defined by our law, from which benefits necessarily flow in favor of the wife as a community partner. Furthermore, it is stamped as property because it includes contract fights and obligations to receive money or other benefits to become due in the future, even though contingent upon the happening of an event at an uncertain time. The right to these benefits, however, is a community asset to be inventoried as such, entitling the wife to recognition of a one-half interest therein as of the date of its dissolution.

Article V of the lower court’s judgment decrees that cash dividends on stock certificates issued by Woodward-Wight & Co., Ltd., amounting to $31,500 and that c.ash dividends on stock certificates issued by Republic Steel Corporation amounting to $300.12, or cash dividends totalling $31,-800.12, are assets of the community and as such are to be charged and debited with the sum of $9,090, the sum representing alimony paid by plaintiff to defendant, leaving a balance of $22,710.12 to be equally divided between the parties.

Plaintiff contends that the conclusion reached by the lower court in this respect should be affirmed. He further contends that said alimony was paid from the dividend income from the Woodward-Wight and Republic Steel stock certificates, thus requiring him to account for the balance of $22,710.12. On the other hand, the wife contends that the said alimony is a debt for which the husband alone is responsible.

Even though the parties have stipulated that the husband paid “alimony” in the amount of $9,090 from June 5, 1947 to October 23, 1950, there arises a dispute between them as to whether the alimony so paid should be levied against the community estate or against the estate of the husband. Though the judgment of separation did not award alimony in favor of the wife, it cannot be disputed that alimony paid at the rate of $225 per month from July 1, 1947 until March 25, 1949, a total sum of $4,725, was alimony pendente lite. The balance in the sum of $4,365, or any other sum paid after the date of this judgment of ■separation, cannot be construed to be alimony pendente lite.

The law governing alimony pen-dente lite is as follows:

“ 'Article 148 of the (Revised) Civil Code declares that, in a suit for separation from bed and board, or for divorce, if the wife, 'whether she be plaintiff or defendant, has not a sufficient income for her maintenance during the pen-dency of the suit, the judge shall allow her a sum for her support, proportioned to her needs and to the means of her husband. That is the authority for the courts to allow alimony pendente lite in this state. The right of the wife to such alimony does not depend at all up,on the merits of the suit for separation from bed and board, or for divorce, or upon the actual or prospective outcome of the suit. The reason for that is that an order to pay alimony pendente lite is merely an enforcement of the obligation of the husband to support his wife as long as the marriage remains undissolved. LeBeau v. Trudeau, 1 Mart., N.S., 93; Holbrook v. Holbrook, 32 La.Ann. 13; Suberville v. Adams, 46 La.Ann. 119, 14 So. 518; State ex rel. Huber v. King, Judge, 49 La.Ann. 1503, 22 So. 887; State ex rel. Hill v. Judge, 114 La. 44, 38 So. 14; Nissen v. Farquhar, 121 La. 642, 46 So. 679; Donnels v. Bouillion, 165 La. 145, 115 So. 439; Brouilette v. Mallet, 180 La. 787, 157 So. 594; Anzalone v. Anzalone, 182 La. 234, 161 So. 594; Arnold v. Arnold, 186 La. 323, 172 So. 172; Cotton v. Wright, 189 La. 686, 180 So. 487.’ Grisamore v. Grisamore, 191 La. 770, 773, 774, 186 So. 98.” Eals v. Swan, 221 La. 329, 59 So.2d 409, 411. See, also, St. Martin v. Messersmith, supra.

In the recent case of Tanner v. Tanner, 229 La. 399, 86 So.2d 80 (Hamiter, J.) in a well-reasoned and rather exhaustive opinion, we held, and it is now settled, that the community of acquets and gains existing between the spouses is dissolved, not as of the date of filing of the suit for separation or divorce, but on the date of the judgment of separation from bed and board or divorce. It follows, therefore, that in the instant case the husband is accountable to the community for the cash dividends received by him until the date of the dissolution of the said community by the decree of separation from bed and board rendered on March 25, 1949.

The order to pay alimony pendente lite, being merely an enforcement of the obligation of the husband to support his wife as long as the marriage remains undissolved and the community between these litigants having valuable assets from which the charges of alimony pendente lite might be acquitted, we conclude that the payments of alimony pendente lite at the rate of $225 per month made by the husband from June 5, 1947 until March 25, 1949, or the sum of $4,725, are chargeable against the husband as.head and master of the community and made payable out of community funds.

In regard to the balance of $4,365 paid at the rate of $225 per month (from March 25, 1949 until October 23, 1950), we conclude that these payments having been made after the dissolution of the community by judgment of separation are not chargeable against the community nor the husband’s separate estate. We are aware of the law that the husband may be called upon to support his wife following judgment of separation from bed and board. However, such relief can only be granted by order or judgment of court invoking our pertinent codal provisions. In the instant case, the wife’s demand for alimony subsequent to the judgment of separation was denied by the court below.

It follows, therefore, that the cash dividends received by the husband subsequent to the dissolution of the community were owned in indivisión by plaintiff and defendant, and the husband is accountable to the wife for her one-half undivided share thereof. Hence, the alimony payments made subsequent to the dissolution of the community should be levied against the wife’s one-half undivided and separate share of the cash dividends so received by him. We consider such payments to be merely advancements made to her from her undivided one-half share in said cash dividends.

Article VII of the lower court’s judgment decrees the respective liabilities of the spouses’ relative federal and state income taxes. It appears that from the date of the filing of the suit for separation from bed and board the husband received annual cash dividends from certificates of stock issued by Woodward-Wight & Co., Ltd., and Republic Steel Corporation. It also appears that the husband and wife filed separate income tax returns, but payment thereof actually being made by the husband, this during the taxable years beginning June 5, 1947 and ending October 20, 1950.

Without ascertaining or computing the indebtedness of one to the other or fixing the specific amount to which reimbursement may be due, as previously observed, the community of acquets and gains remains in existence for all intents and purposes until its dissolution, namely, the date of the rendition of judgment of separation from bed and board.

Hence, all sums expended for income tax prior to the rendition of judgment of separation from bed and board, March 25, 1949, must be held to be debts of the community and to be payable out of community funds. And it logically follows that once the community became dissolved, in the instant case on March 25, 1949, any sum expended by the husband for tax due on revenue belonging to him and his wife cannot be held chargeable against the community but is dischargeable by both in proportion to their undivided rights and interest in the taxable income.

Article VIII of the lower court’s judgment decreed that plaintiff be declared the owner of a 1940 Chevrolet 2-door Sedan automobile and that he be charged and the community credited with its appraised value of $500, which appraisal plaintiff complains is excessive and should be reduced to $275.

The original purchase price of the car was $815, and the use thereof was enjoyed exclusively by plaintiff from 1947 until 1950 when in purchasing a new. automobile he received a trade-in credit of $500. The findings of fact by the court below relative to this item are fully supported, by the record, and we find no reason to disturb same. See White v. White, supra.

Article X of the trial -court’s judgment rejected plaintiff’s demand for a credit of $875.24 allegedly brought by him into the marriage. Plaintiff and defendant were married on June 18, 1930. Plaintiff’s bank book reflects that on June, 5, 1930 he had a balance of $875.24; on June 17, 1930, a balance of $575.24; and on June 18, 1930, a balance of $325.24. The record discloses that subsequent deposits and withdrawals were indiscriminately made, which in effect constitute a commingling of the funds. On May 20, 1933 there was a balance of $112.05; which sum was subsequently paid out in liquidating dividends to the depositor.

Plaintiff contends that the funds in said account were expended for the enhancement of the community, therefore entitling his separate estate to a reimbursement for that amount. The record is barren of any proof whatever that the community was enhanced in value or that it received any specific benefit by the use of separate funds of the husband. In order-for him to recover separate funds brought into the community, he must not only show that he had such separate funds but that they were actually used for the benefit of the community. This alleged separate fund having been indiscriminately commingled with community funds so as to make it impossible to segregate them, there can be no indebtedness therefor levied against the community. Succession of Provost, 190 La. 30, 181 So. 802.

In the Succession of Bell, 194 La. 274, 193 So. 645, 647, on rehearing we held:

“There is no fixed rule or standard of proof required to establish that the contribution of the separate funds of the husband has been used to benefit the community. To establish such a claim it must be shown with reasonable certainty that the community still had the .benefit of the contribution at the time of its dissolution, and that the separate funds were- not wasted by the husband or disposed of for his separate benefit. Munchow v. Munchow, 136 La. 753, 67 So. 819; Succession of Ferguson, 146 La. 1010, 84 So. 338; Succession of Provost, 190 La. 30, 181 So. 802.”

Plaintiff’s demand for credit of $875.24, the sum brought into they community by him, was correctly rejected.

Defendant-appellant complains that the trial court’s judgment inadvertently fails to provide interest from the date of judgment rendered herein on the net amount found to be due to her by plaintiff in these partition proceedings.

As previously observed, to an end to expedite this protracted litigation, the parties, on Juiie 22, 1953, entered into and filed stipulations upon which predicated the final judgment of partition dated May 17, 1954, fixing the- respective rights and liabilities of the-spouses to each other and ordering distribution of the community assets as therein; detailed, and resolving the mutual moneyed demands of the parties, resulting in a net money judgment in favor of the wife ior $4,893.17."

It appears that the pleadings filed by the wife failed to specifically demand interest, or to pray therefor, on any amount to be ultimately adjudged due her by the husband. However, prior to the rendition of this final judgment, defendant-wife filed a motion- on March 1, ..1954, .seeking authority to file an appropriate supplemental demand for interest from date of judgment. This motion was overruled on March 19, 1954.

The husband contends that no interest is due because (1) he has not had the enjoyment of the. community assets since as a result of the injunction originally issued and in force; and (2) that since the wife provoked and perfected the appeal she has thus prevented the execution of;the judgment, and her demand for interest would, therefore, be inequitable.

These contentions are untenable. The wife has a legal right to demand that injunctions issue to protect her rights and interest in and to community property in the control of her husband; and she has a right to provoke and perfect an appeal from the judgment she believes detrimental to her .rights. No penalty can be imposed for the exercise of such rights.

Our law is well settled that amendments to pleadings should be permitted where they tend to further justice, cause no injury and are without prejudice to the right of the other party. Should the other party plead surprise, he may obtain time to prepare adequate defense. Our modern-day tendency is to relax the technical rules of pleading in order to arrive at the truth, afford a litigant his day in court and avoid a miscarriage of justice. Ruiz v. American Trading Co., 167 La. 28, 118 So. 597; Seale v. Stephens, 210 La. 1068, 29 So.2d 65.

However, the defendant-appellant’s demand for interest from date of judgment does not necessitate an amendment of pleadings. The case of Hill v. Hill, 115 La. 489, 39 So. 503, 506, involved-in part the partition of community effects between the parties, and we allowed interest from date of judgment, saying, on rehearing:

“We find that there is no .allegation. by -the plaintiff that interest is due, and no prayer that it be allowed.
'■ “It is therefore ordered and adjudged that the rehearing applied for be refused, that the decree heretofore handed down be amended with respect to interest allowed, and that the judgment appealed from, allowing interest from the date of said judgment, * * t- be affirmed.”

Both our Civil Code and our Code of Practice provide in almost identical language that interest at the rate of 5% per annum shall be allowed on all debts from the time they become due unless otherwise stipulated. The judgment in this instance having.recognized an indebtedness in favor of the wife, and, accordingly, under the prevailing law hereinabove referred to, this indebtedness is now held to bear interest at 5% per annum from the date of the judgment, May 17, 1954, until paid.

Accordingly, for the reasons assigned, Article IV of the judgment of the district court herein appealed from insofar as it relates to a certain Woodward-Wight group annuity certificate is reversed and set aside, and said certificate is hereby declared to be community property entitling defendant-appellant to her one-half undivided interest and right therein;

Article V of the judgment insofar as it relates to alimony payments and the funds used therefor is set aside and amended so as to coincide with the view's herein expressed;

Article VII of the judgment insofar as it relates to liability for income taxes paid for and on behalf of both parties is set aside and .amended so as to coincide with the views herein expressed;

The judgment herein appealed from is amended so as to include legal interest from date of rendition of. judgment, May 17, 1954, on the net amount, if any, found to be due to defendant-appellant by plaintiff-ap-pellee. .

Article XIII of the judgment insofar as it recaps the respective charges to plaintiff and defendant is set aside and amended so as to coincide with the views and opinion rendered herein;

In all other respects the judgment appealed from is affirmed, and this cause is now remanded to the trial court.for proper computations and amendments as to the respective rights and liabilities of the parties hereto, not inconsistent with the views herein expressed.

HAMITER, J., concurs in part and dissents in part assigning written reasons.

MÓÍSE, J., concurs.

FOURNET, C. J., absent.

HAMITER, Justice

(concurring in part and dissenting in part).

With reference to the Woodward-Wight group annuity certificate (Article IV), I am of the opinion that the wife’s alternative contention should be sustained, it being that “the community should be credited in the final accounting for the amount of community funds contributed to the annuity plan for the benefit of the husband.” Otherwise, I concur in the decree.

      . St. Martin v. Messersmith, 218 La. 239, 48 So.2d 909.

      . Relying on Hill v. Hill, 115 La. 489, 39 So. 503; White v. White, 159 La. 1065, 106 So. 567; Uchello v. Uchello, 220 La. 1061, 58 So.2d 385.

      . Relying on Talbert v. Talbert, 199 La. 882, 7 So.2d 173.

      . LSA-Civil Code Article 1938; Code of Practice Article 554.


source: Caselaw Access Project

author: SIMON, Justice.

license: Public Domain

text:
    229 La. 524
    Patrick M. ALLISON v. Tilden PICK and Edward Pick.
    No. 41639.
    Supreme Court of Louisiana.
    Feb. 20, 1956.
    M. C. Scharff, New Orleans, for plaintiff-appellant.
    Arthur L. B allin, New Orleans, for defendants-appellees.
   SIMON, Justice.

Plaintiff-appellant instituted this suit to recover professional fees for services rendered as a licensed architect under an alleged contract entered into by plaintiff and defendants. Defendants deny that they entered into any agreement as set forth by plaintiff.

After a trial on the merits, the lower court concluded that the contract sued on totally lacked one of the basic elements of enforcible contracts in that there was no meeting of the minds by the litigants and, accordingly, dismissed plaintiff’s suit.

On appeal to this court, plaintiff-appellant contends that-the trial court committed manifest error in its .finding of fact, thus presenting only an issue of fact for determination by us.

Plaintiff’s version of the transaction is that during the early part of 1949, at a time when he was not a licensed architect, he was retained by defendants to draw architectural plans for an apartment house to be erected by them. Plaintiff delivered certain preliminary plans to defendants, who submitted thém to R. P. Farnsworth & Company, a building contractor, for an estimated cost,, which construction company submitted ,a bid in the amount of $125,000. Defendants rejected the Farns-worth bid, it being in excess of the amount they wanted to expend; and they further instructed plaintiff to draw permanent plans and specifications so as to meet their requirements. Plaintiff contends that when the permanent plans' were ordered drawn there was an oral understanding and agreement that his fee would be ¿4 oí 5% on the amount of the contract price to erect the building. Plaintiff delivered a single copy of the permanent plans to defendants, accompanied by a written contract of employment signed by him, incorporating the alleged fee arrangement. - The defendants refused to sign the written, contract of employment, and plaintiff refused to deliver any additional copies of the permanent plans so as to enable the defendants to submit them to the construction contractors for their respective estimates of cost.

Defendants’ version of the transaction had between the parties is that on several occasions and at informal meetings they discussed with plaintiff their idea and contemplated plan to build an apartment house at a cost not to exceed $70,000; that plaintiff agreed to draw plans to obtain bids from construction contractors within that cost limit. Defendants did not bind themselves to pay any specific amount for the architectural plans, but there was an agreement that plaintiff would receive compensation for his architectural plans only in the event their requirements were met and the building constructed.

It is self-evident that plaintiff not having submitted the permanent plans, defendants were unable to obtain estimates from various construction contractors and thus determine whether said plans met their requirement that the cost of the building not exceed the sum of $70,000.

Defendants’ version of the transaction had between the parties was favorably received by the trial judge, who, in his written reasons for judgment, stated that the written agreement of employment filed in evidence by plaintiff not having been signed by the parties was corroborative of his conclusion that,there was no actual meeting, of the minds between plaintiff and defendants. ,

We necessarily observe that this is not a suit seeking recovery on a basis of quantum meruit for services rendered but is one predicated solely upon an alleged contract entered into between the parties.

LSA-Civil Code, Article 1798 provides:

“As there must be two parties at least to every contract, so there must be something proposed by one and accepted and agreed to by another to form the matter of such contract; the will of both parties must unite on the same point.”

We find nothing in the record to show that the parties hereto entered into or intended that there should be a binding contract of employment for architectural plans drawn. No contract can arise where both parties thereto have not agreed to its terms. Colgin v. Security Storage & Van Co., 208 La. 173, 23 So.2d 36, 160 A.L.R. 1107.

We are convinced of the correctness of the findings of fact resolved by the district judge, and we adhere to the well-stabilized jurisprudence of this court that the conclusions reached by him, and his judgment on the facts, should not be disturbed unless manifestly erroneous. Nalty v. Nalty, 222 La. 911, 64 So.2d 216; Rosenthal v. Gauthier, 224 La. 341, 69 So.2d 367; Olivier v. Abunza, 226 La. 456, 76 So.2d 528; McMahon v. Manufacturers Casualty Ins. Co., 227 La. 777, 80 So.2d 405; Sunseri v. Westbank Motors, 228 La. 370, 82 So.2d 43.

Accordingly, for the reasons assigned, the judgment of the Civil District Court is affirmed.

      . There is no argument as to the agreement with regard to the preliminary drawings for which plaintiff was paid the sum' of $300. '

      . Throughout the trial, it was shown that defendants’ requirements were for plans for an apartment house at a cost not to exceed $70,000.


text:
    229 La. 529
    Emile J. THOMAN, individually and d/b/a Othom Sales Company, v. Col. Francis C. GREVEMBERG, Supt. of State Police, et al.
    No. 42530.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    Rehearing Denied Feb. 20, 1956.
    Gordon Goodbee, Covington; for appellant.
    E. Drew McKinnis, C. Wayne Hays, Baton Rouge, for defendants-appellees.
   SIMON, Justice.

On May 31, 1954, Emile J. Thoman filed this suit for a declaratory judgment to have certain console model'coin amusement machines declared free from seizure and destruction, their not being “slot machines” or gambling devices reprobatéd by law.

On November 4, 1953, 69 machines admittedly owned by plaintiff were confiscated from various places of storage in the Parish of St. Tammany by officers of the Louisiana State Police Department acting under order of the Superintendent of State Police, Francis C. Grevemberg, and stored in a warehouse in Covington, Louisiana, for evidentiary purposes. The key to said warehouse was delivered to John E. Brewster, clerk of the Twenty-second Judicial District Court.

Plaintiff alleges that these machines are not gambling devices of such a character as to be included in.the intent of Act 231 of 1928, LSA-R.S. 15:26.1, but are merely amusement devices. Defendants Grevem-berg and Brewster contend that said machines are gambling devices and therefore subject to confiscation and destruction made mandatory by said statute which provides as follows: ‘ '

“All officers of the state of Louisiana are hereby authorized and empowered, and it is made mandatory and compulsory on their part, to confiscate and immediately destroy all gambling devices known as slot machines that may come to their attention, or that they may find in operation.”

At the trial, in order to determine the issue whether the machines seized fall under the condemnation of this statute and are contraband, subject to destruction by the seizing authorities, the trial court received evidence that the machines were so manufactured, designed and constructed as to be capable of use as gambling devices.

The record discloses that plaintiff purchased 69 second-hand machines, and he generally described them as amusement devices without automatic ejection of money or tokens redeemable in money or property.

The evidence further shows that 14 of these machin.es were what is commonly termed as “horse race machines”, capable of being used as automatic pay-off machines without free-play attachments, and the remainder were free-play machines without automatic pay-off attachments. Some of these machines bore federal gambling tax stamps issued for the year 1952, authorizing their use and operation. These machines had all the physical characteristics of slot machines, having a slot for the insertion of coins and a drawer for the payoff. Each machine was • so manufactured that it could be converted from a free-play machine to an; automatic pay-off machine within a short time. This conversion entailed merely the insertion of a tube for the conveyance of the coins paid off, the removal of a plug to allow passage of the coins and the removal of a small pin securing the pay-off drawer. The time required for the conversion is approximately from two to five minutes.

The district court rendered judgment in favor of defendants and declared the electrical console machines forming the subject matter of this cause to be slot machines within the intendment of LSA-R.S. 15:-26.1; and plaintiff perfected this devolutive appeal.

In plaintiff’s brief and his counsel’s oral argument, the only error assigned is the admitting by the district judge of experimental or demonstrative evidence without the laying of the proper foundation for its admission. There is no complaint leveled against the judgment of the lower court holding said machines to fall under the terms of the statute and therefore contraband and subject to mandatory seizure and destruction.

During the trial defendants’ counsel, having first qualified William H. Nunn as an expert witness, offered to produce in court one or' more of the machines and there have its operation demonstrated by said witness. Counsel for plaintiff objected to the demonstration prior to his right to cross-examine the witness to ascertain whether or not the condition of the' machines had been'altered or changed during the interim from the date of seizure to the date of trial. The trial judge overruled the objection, expressing the belief that plaintiff’s rights would be amply protected by cross-examination of the witness when he was tendered and reserving unto him whatever merits his objection would warrant. Manifestly, the trial judge felt that a physical and visual demonstration would afford the means of more intelligently determining whether or not these machines were gambling devices, notwithstanding the-previous testimony of witnesses as to their design and mechanism. Counsel for plaintiff cross-examined this witness at length and at no time thereafter urged any further-objection, having, as disclosed by the record, previously acceded to the court’s ruling. Under these conditions, in this, a civil proceeding, the mere deferment of the cross-examination of the witness by plaintiff, bearing upon the tampering, if any,, with the machines during the period of.' their custody, cannot be held to be prejudicial to plaintiff’s rights.

We are convinced that even without the demonstration there is ample and convincing proof that these machines may be converted into automatic pay-off machines for gambling purposes within a short time by a qualified mechanic.

Plaintiff’s effort to convince the court that the design and mechanism of these machines are per se for amusement purposes only is eloquently answered in our recent holding in the case of State v. Ricks, 215 La. 602, 41 So.2d 232, 233. The argument was therein raised that the machines were not fixed to pay off automatically and therefore were not slot machines as condemned by our law. We held:

“The first point that the slot machine is not of the type described by Act No. 231 of 1928 is predicated upon the notion that, because the machine is mechanically arranged so that it does not automatically eject the prizes that may be won by the player, it is not per se a gambling device.
“The argument cannot be sustained. The evidence shows that the machine was used for gambling; that it has all of the characteristics of a slot machine, other than the automatic ejection of money or tokens redeemable in money or property, or rather, it has been so fixed that it cannot pay off automatically (but it may be converted into an automatic pay-off machine within a .short space of time by a qualified mechanic). The statute has for its purpose the immediate confiscation of ‘all gambling devices known as slot machines * * * ’. It is difficult to discern that the plugging of the automatic pay off has the magical effect of placing the machine beyond the pale of the law.”

In the more recent case of Killian v. Craft, 226 La. 374, 76 So.2d 401, we held that the fact that the machines were not in operation at the time of their seizure did not prevent their falling within the provisions of the above statute. We said:

“At the time the sheriff seized the slot machines they were stored in a warehouse in the Town of Leesville, Vernon Parish, having been in storage for two years or more awaiting the permission of the authorities to ship them to the State of Nevada. They were not being operated as gambling devices or otherwise in use at the time they were seized and had not been in use or operated for more than two years. They were so manufactured, designed and constructed as to be capable of being used as gambling devices, if in proper state of repair and working order, and are what are commonly called slot machines. * *

Accordingly, for the reasons assigned, the judgment appealed from is affirmed.

      . This statute has been construed to embrace the destruction of all gambling slot machines whether they are found to be in operation or not. Schimpf v. Thomas, 204 La. 541, 15 So.2d 880, 882.


text:
    229 La. 536
    Hurb HICKS v. ROYAL INDEMNITY COMPANY. In re Hurb Hicks applying for certiorari to the Court of Appeal, Parish of Orleans.
    No. 42516.
    Supreme Court of Louisiana.
    Feb. 20, 1956.

      James O. Manning, New Orleans, for applicant.
    Bienvenu & Culver, New Orleans, for respondent.
   SIMON, Justice.

Plaintiff filed suit alleging permanent and total disability as a result of an injury suffered by him in the course of his employment on April 2, 1951, and sought compensation under our Louisiana Workmen’s 'Compensation Act. LSA-R.S. 23:1021 et seq. Defendant' resisted the demand, denying the disability complained of. After a trial on -the merits in the district court, judgment was rendered in favor of plaintiff for workmen’s compensation in the sum of $30 per week fqr a period not exceeding 400 weeks, or $12,000, less compensation heretofore paid.

The district 'court’s judgment was reversed on appeal' by the ■ Orleans Circuit Court of Appeal, and plaintiff’s suit was dismissed at his cost. Whereupon plaintiff applied to this court for writs to review the final holding of the Court of Appeal. '

We found no manifest error in the judgment so reyiewed, both on the facts and on the law applicable. However, we observed that the judgment of the Court of Appeal condemned plaintiff to pay the court costs, notwithstanding that plaintiff had instituted and prosecuted His suit under the provisions of LSA-R.S. 13:452i>, the Louisiana forma pauperis statute; and accordingly we granted writs of certiorari restricted to the issue of costs.

Under LSA-R.S. 13:4525 any citizen of this state may prosecute and defend in all trial and appellate courts all actions to which he may be a party, whether as plaintiff, intervenor, third opponent or defendant, without the payment of cost or giving bond therefor, inclusive of the right of prosecuting appeals. This salutary statute is amenable to any citizen, and in the exercise of the privilege herein granted he. is only required to file with his petition his. own affidavit declaring his poverty which, prevents him from paying the costs or giving bond, together with a supporting affidavit of a third person who personally knows the financial condition of the applicant. After inquiry, the judge is authorized to enter an order permitting the-relief applied for.

The record shows that plaintiff fully-complied with the requirements of the statute, and that the district judge ordered the-filing and prosecution of the suit thereunder.

In Causey v. Opelousas-St. Landry Securities Co., 192 La. 677, 188 So. 739, on application for rehearing we appended a per curiam holding that since plaintiff had instituted the suits in forma pauperis, the original judgment should be amended to the-extent that plaintiff should not be condemned to- pay the cost. Stringer v. Brown Paper Mill Co., 224 La. 964, 71 So.2d 343; Hicks v. Continental Casualty Co., La.App., 1955, 75 So.2d 522; Bigham v. Swift & Co., La.App.1955, 81 So.2d 28.

We necessarily conclude that the Orleans. Circuit Court of Appeal was in error, and: we therefore amend the judgment rendered' by it so as to relieve the plaintiff from the payment of costs.

• Accordingly, for the reasons assigned, the-judgment of the Court of Appeal is hereby amended, relieving plaintiff of paying; the costs taxed in this suit.


author: PER CURIAM.

text:
    In re Roy J. ASHLEY. STATE ex rel. Roy J. ASHLEY v. Or. L. F. MAGRUDER, Superintendent, East Louisiana State Hospital, Jackson, Louisiana.
    No. 4211.
    Court of Appeal of Louisiana. First Circuit.
    March 20, 1956.
    Roy J. Ashley in pro. per. '
   PER CURIAM.

By petition filed in this Court, relator applies to our original jurisdiction to issue writs of -habeas corpus, A.rt. 7, Section 2, La.Constitution, LSA. Relator is confined at the East Louisiana State Hospital for the mentally ill at Jackson, Louisiana pursuant (according to the allegations of his petition) to a letter of the Attorney General of the United States, arising from a commitment in a United States District Court criminal proceeding which subsequently has been dismissed. According to the allegations of relator’s petition, a staff conference at the East Louisiana State Hospital has found relator presently sane.

The petition was originally presented to the Twentieth Judicial District Court, which has jurisdiction over the East Louisiana State Hospital. It refused to issue the writ of habeas corpus prayed for by relator’s petition.

The allegations of the petition apparently justify issuance of a writ of habeas corpus. However, as stated by us, In re Ingram, La.App., 82 So.2d 788, this and other appellate courts may decline to issue the writ, in view of their primary appellate function, referring the matter to the district court or courts with original jurisdiction. However, wé do not have supervisory jurisdiction as does the Supreme Court to mandamus the appropriate district court to issue a writ of habeas corpus, see Ex parte Ryan, 124 La. 356, 369, 50 So. 385.

For these reasons we are denying relator’s application for the writ of habeas corpus, without prejudice to his reapplication to the Twentieth Judicial District Court, or to the supervisory jurisdiction of the Supreme Court of the State of Louisiana.

Application for writ of habeas corpus refused.


author: McCALEB, Justice. HAWTHORNE, Justice

text:
    229 La. 539
    STATE of Louisiana v. Gaston MARCOTTE.
    No. 42553.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    Rehearing Denied Feb. 20, 1956.

      Earl Edwards, Marksville, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., Charles A. Riddle, Jr., Dist. Atty., Marksville, for appellee.
   McCALEB, Justice.

The criminal charges in this case arose out of an altercation occurring at a polling place in Avoyelles Parish between appellant, a constable of said Parish, and Judge Francis J. Gremillion, the prosecuting witness, who was a candidate for the. office of District Judge during the Democratic Primary Election held on July 27, 1954. It appears from the record that the prosecuting witness, while visiting the polls, encountered appellant and remonstrated with him for remaining at or near the polling place. A scuffle ensued in which Judge Gremillion suffered two or three broken ribs while being forcibly ejected from the polling place by appellant. Thereafter, he filed an affidavit against appellant and, on February 14, 1955, the Avoyelles Parish Grand Jury indicted him on three counts for (1) assault, (2) simple battery, and (3) violation of R.S. 18:377, which makes it an offense for any person employed by the State or any of its political subdivisions, who has authority to make arrests and carry arms, or who performs duties and functions usually performed by police officers, to remain or be stationed at or attempt to exercise any authority at a polling place in any primary election.

The case did not come up for trial until after Judge Gremillion took office. He recused himself and Judge Walter M. Hunt-ter of the Ninth Judicial District Court was called to preside in the case. Following a trial, appellant was found guilty of committing a battery and of violating R.S. 18 :- 377. He was sentenced to serve one year in the parish jail on Count No. 2 (the battery charge) and, on Count No. 3 (violating R.S. 18:377), to pay a fine of $250 and costs and to serve six months in the parish jail and, in default of the payment of the fine and costs, six months additional in the parish jail, all of the sentences under Count No. 3 of the indictment being suspended. He has appealed, relying on five bills of exceptions for reversal of the conviction.

Bill No. 1 was taken to the overruling of a motion to recuse the district attorney. The substance of this motion is that the district attorney has a personal animosity .against appellant, stemming originally from quarrels and altercations between appellant and the father of the district attorney; that he and the district attorney have been politically opposed to each other for: many years ; that during the second primary in which the district attorney was a successful candidate, appellant supported his opponent and was threatened and warned during the campaign by one of the district attorney’s cohorts that, unless he changed his political activities and supported the candidacy of the district attorney, he “would have to suffer the consequences of a vigorous prosecution and conviction immediately after the election * * * ”; that he was told that, if he were to change his political support to the district attorney, the charges would be dropped or nolle prosequied and that these threats and propositions were made with the knowledge and consent of the district attorney.

The district attorney, in his answer to the motion to recuse, vehemently denied the salient allegations thereof and affirmatively stated that he held no animosity toward appellant, did not regard him as a personal enemy, and that, on the day of the election and since, informed appellant that he would deal with him fairly.

After considering the allegations of the motion to recuse and the answer thereto, the judge took the position that, in view of tire sworn statement of the district attorney that he was unbiased, impartial and harbored no animus against appellant, the talcing of evidence would be unwarranted as such proof that might be adduced would merely rehash the political campaign and set a bad precedent for similar motions in the future.

In this court appellant urges, in effect, that the judge has deprived him of a substantial right by accepting the affidavit of the district attorney as correct without subjecting him. to cross-examination and by not allowing the production of proof in support of his charges. And, relying on the broad construction given the third paragraph of Article 310 of the Code of Criminal Procedure, R.S. 15:310, by this court in State v. Tate, 185 La. 1006, 171 So. 108, defense counsel contends that the allegations of the motion for recusation, if taken as true, show sufficient cause for recusation under the statute.

In State v. Tate, the recusation of a district attorney was sought on the ground that he had a personal interest. adverse to the prosecution in that he was employed as one of the attorneys in a series of civil suits brought against the defendant, the outcome of which depended upon his success in having defendant .convicted. It was argued that the third paragraph of Article 310 of the Code of Criminal Procedure, providing the causes for recusation of a district attorney, reading “If said district attorney shall have a personal interest adverse to that of the prosecution” was equally as applicable to cases where the district attorney had a personal interest in convicting the accused as it was to cases where he had a personal interest in having him acquitted. The court sustained this contention, resolving that, when the district attorney is personally interested in gaining a conviction, his interest is adverse to that of the State, as the State demands no victims, seeking equal and impartial justice only, it being just as much the duty of the prosecution to see that no innocent man suffers as it is to see that no guilty one escapes.

In view of this decision, it was improper for the trial judge to refuse to hear evidence on the motion as the allegations thereof are sufficient, if sustained by preponderating evidence, to require the rec-usation of the district attorney on the ground that he has a personal interest, adverse to that of the prosecution.

Since a new trial will have to be granted appellant, it would ordinarily be unnecessary to consider the points raised under the other bills. However, it is imperative that we pass on Bill of Exceptions No. 2, which was taken to the overruling of a motion to quash the third count of the indictment on the ground that R.S. 18:377 ig unconstitutional. It is contended that R.S. 18:377 is so indefinite that it denies due process and does not inform appellant of the nature and cause of the accusation against him.

The statute provides in substance as follows :

.“Except as provided in this Part, no person employed by the state or any of its political subdivisions, boards, or commissions, who has power and authority-to make arrests or carry arms or who performs the duties and functions usually performed by police officers shall go to or remain at or be stationed at or exercise or attempt to-exercise any authority at a polling place or in'- the immediate vicinity of a polling place, in any primary held under this Part.”

It is said by counsel for appellant that the words “go to”, “remain at”, “in the immediate vicinity” and “exercise or. attempt to exercise any authority at a polling place” are terms so uncertain and indefinite as to reasonably admit' of different constructions and that, accordingly, the offense is not defined with the precision required in order to afford one charged thereunder with due process. State v. Truby, 211 La. 178, 29 So.2d 758; State v. Vallery, 212 La. 1095, 34 So.2d 329 and State v. Penniman, 224 La. 95, 68 So.2d 770 are cited in support of the argument.

We find no merit in the plea. The object of the Act is to prevent peace officers, having authority to make arrests and carry arms, from exerting their powers at or within the vicinity of a polling place, unless specially commissioned to do so and the prohibited offense is set forth in precise and understandable language. Hence, the cases relied on are clearly inapplicable as they dealt with statutes defining crime in conjectural terms. The words “go to” “remain at” are simple words which convey but one meaning and likewise are the terms “polling place” “or in the immediate vicinity of a polling place.”

The third bill of exceptions also pertains to the overruling of the motion to quash in that it was taken to the action of the trial judge in permitting the district attorney to amend the indictment.

The bill is without substance. The indictment, which was: couched in the language of the statute, is adequate' to inform appellant of the nature and cause of the accusation. Moreover, the judge had the authority to allow the indictment to be amended prior to the commencement of the trial. Article 253, Code of Criminal Procedure, R.S. 15:253.

The conviction and. sentence are set aside and the case remanded to the district court for a new trial.

FOURNET, C. J., absent.

HAWTHORNE, Justice

(dissenting).

The causes for recusation of a district attorney are set forth in Article 310 of the Code of Criminal Procedure, and it has .been said by this court that a district attorney cannot recuse himself or be recused except for the causes provided by law. See State v. Boasberg, 124 La. 289, 50 So. 162. The allegations of defendant’s motion to recuse the district attorney in the instant case do not fall within any of the causes of recusation enumerated in Article 310, and consequently I think the trial judge was correct in overruling the motion to recuse. Furthermore, I do not subscribe to the holding of this court in State v. Tate, 185 La. 1006, 171 So. 108.

I therefore respectfully dissent.

      . The author of this opinion is impelled to state that he is not in accord with the ruling in State v. Tate, 185 La. 1006, 171 So. 108; believing that it is contrary to the plain language of the third paragraph of Article 310 of the Code of Criminal Procedure and that it overlooks the reason which undoubtedly prompted the Legislature of 1928 to add this provision, to the other two théretofore existing grounds for recusation of a district attorney. However, since the correctness of the decision has not been assailed by the prosecution herein, he feels obliged to follow it as the established jurisprudence of this State.

      . This statute was recently considered by us in State v. Mayeux, 228 La. 6, 81 So.2d 426 and its validity upheld. The attack of appellant herein is pitched on a different basis.


author: SIMON, Justice. McCALEB, Justice

text:
    229 La. 549
    STATE ex rel. Fred S. LE BLANC v. DEMOCRATIC STATE CENTRAL COMMITTEE et al.
    No. 42804.
    Supreme Court of Louisiana.
    Feb. 7, 1956.
    See also 229 La. 556, 86 So.2d 192.
    Fred S. LeBlanc, Atty. Gen., pro se, and A. Leon Hebert, Ashton L. Stewart, Baton Rotige,, for relators.
    Rufus D. Hayes, Jack P. F. Gremillion, Baton'Rouge, Camille F. Gravel, Jr., Alexandria, Edmund M. Reggie, Crowley, G. Dupre Litton, N. Cleburn Dalton, William C. Bradley, Baton Rouge, for respondents.
   SIMON, Justice.

Inasmuch as the provisions of LSA-R.S. 18:364, Par. E, requiring a decision in cases of this character within 24 hours after submission, and the exigencies of the case under consideration requiring immediate action, we herewith haiid down our decree in this matter — the reasons for which will follow in due course:

For the reasons to he hereafter assigned, the alternative writs of prohibition and mandamus issued by this court in these proceedings are now made peremptory; and, accordingly, the temporary restraining order and the rule nisi issuecl in this matter by the trial judge below is hereby set áside; the exception of no cause of action filed by respondents, Rufus D. Hayes, Chairman Democratic State Central Committee, Wade O. Martin, Jr., Secretary of State, Jesse L. Webb, Sr., Secretary Democratic State Central Committee, and Jack P. F. Gremillion, is sustained, and relator’s suit is hereby dismissed at his cost.

McCALEB, Justice

(dissenting from the issuance of writs).

Relator seeks to have this court exercise its supervisory jurisdiction, without his first having exhausted his remedy in the district court, by the issuance of a rule nisi for the respondents, Democratic State Central Committee, Wade O. Martin, Jr., Secretary of State and Jack P. F. Gremillion, to show cause why a preliminary injunction should not be granted prohibiting each of them from acting upon a i-esolution of the Democratic State ■ Central Committee of February 1, 1956, dispensing with the holding of a second primary to elect a nominee of the Democratic Party for the office of Attorney General of the State of Louisiana.

The facts are that relator has filed a suit against respondents in the 'Nineteenth Judicial District Court praying for the same relief as presently sought in this court and that the district court has issued a rule nisi for respondents to show cause on February 7, 1956 and has also temporarily restrained the ■ Democratic State Central Committee and the Secretary of State from complying with the resolution of the Democratic State Central Committee pending the hearing on relator’s application for a preliminary injunction.

In other words, at the time of the filing of this application for remedial writs, relator had obtained all of the relief prayed for in his petition which the trial court could possibly give him in advance of a hearing. Hence, the application to this court for remedial writs under our supervisory jurisdiction actually presents nothing for this court to supervise as there is no adverse order of the district court of which relator is complaining. In reality, relator is not invoking our supervisory jurisdiction but is seeking to have this court exercise original jurisdiction of the case which we are without authority to do as our original jurisdiction is confined by the Constitution to disbarment 'cases, involving misconduct of members of the bar, and suits for the removal from office of judges of courts of record. Section 10 of Article 7 of the Constitution.

The case of Long v. Martin, 194 La. 797, 194 So. 896, does not sustain relator’s position as that case presents the reverse of the situation here. There, the trial court, like here, had granted Long a rule nisi for a preliminary injunction, coupled with a temporary restraining order. But, unlike this case, it was the respondents, Chairman of the Democratic State Central Committee and the Secretary of State, who applied to this court for remedial writs complaining of the temporary restraining order issued against them and alleging that, unless this court granted immediate relief, none could be obtained as the official ballots had to be delivered to the many precincts throughout the State by a certain date. Here, as I have above pointed out, relator has no complaint as to the court order temporarily restraining respondents, in accordance with the prayer of his petition.

Nor does the other case relied on by relator, State ex rel. Rosenstock v. Democratic Municipal Executive Committee, 197 La. 469, 1 So.2d 697, support the contention that this court has authority to grant him the relief prayed for at this time. That decision merely upholds the right of this court to issue writs and consider any case under our supervisory powers where the remedy by appeal is inadequate because there is not ample time within which to have the case decided on appeal. It is apt to point out' in this connection that the case of State ex rel. Rosenstock v. Democratic Municipal Executive Committee was decided prior to the time when this court adopted the policy of refusing to accept jurisdiction in cases properly appealable to the Courts of Appeal, see Grace v. Boggs, 220 La. 22, 55 So.2d 768 and, whereas this court will not hesitate to accept and consider cases under its supervisory jurisdiction upon a showing that the remedy afforded by an appeal is inadequate, it should not exercise supervisory jurisdiction in cases in which the appeal lies to one of the Courts of Appeal. Those courts are vested by Section 2 of Article 7 of the Constitution with supervisory powers in aid of their own appellate jurisdiction.

Since the filing of this application, respondents have presented a motion in which they join with relator in requesting that this court exercise its supervisory jurisdiction in the case. Of course, the joinder by respondents cannot confer jurisdiction, as jurisdiction cannot be conferred by consent of the parties.

On the other hand, if this motion is treated as a petition for writs, the case would fall in the same category as that of Long v. Martin, supra, and it must he admitted that that decision would he authority for the granting of writs. However, it is my opinion that the premise on which Long v. Martin was decided is incorrect and the holding should not be perpetuated by this court. Orderly proceedings in a district court should not be restrained on the basis of expediency and the jurisdiction of a court shohld not be dusted on the theory that the exigencies of time do not permit a trial. Nothing new has arisen in this case that was not known at the time suit was filed. Hence, the transfer of the case to this court for decision constitutes 'a'usurpation of power and the assumption by this court of original jurisdiction (which it does not possess) no different from'the-situation which would exist if the case had been filed here in the first instance.

I respectfully dissent from the granting of the writs.

      . Under Section 7 of Rule XIII of the Rules of this Court, every petition for a writ of certiorari, prohibition or mandamus must be accompanied by a certified copy of the order or ruling complained of.

      . The court also has original jurisdiction for determination of questions of fact affecting its own appellate jurisdiction in any case pending before it.


text:
    229 La. 555
    STATE ex rel. Dave L. PEARCE v. DEMOCRATIC STATE CENTRAL COMMITTEE et al.
    No. 42805.
    Supreme Court of Louisiana.
    Feb. 7, 1956.
    See also 229 La. 556, 86 So.2d 192.
    Fred S. LeBlanc, Atty. Gen., pro se, and A. Leon Hebert, A.shton L. Stewart, Baton Rouge, for relators.
    Rufus D. Hayes, Jack P. F. Gremillion, Baton Rouge, Camille F. Gravel, Jr., Alexandria, Edmund M. Reggie, Crowley, G. Dupre Litton, N. Cleburn Dalton, William C. Bradley, Baton Rouge, for respondents.
   SIMON, Justice.

Inasmuch as the provisions of LSA-R.S. 18:364,- Par. E, requiring a decision in cases of this character within 24 hours after submission, and the exigencies of the case under consideration requiring immediate action, we herewith hand down our decree in this matter — the reasons for which will follow in due course.

For the reasons to be hereafter assigned, the alternative writs of prohibition and mandamus issued by this court in these proceedings are now made peremptory; and, accordingly, the temporary restraining order and the rule nisi issued in this matter by the trial judge below is hereby set aside; the exception of no cause of action filed by respondents, Rufus ,D. Hayes, Chairman Democratic State Central Committee, Wade O. Martin, Jr., Secretary of State, Jesse L. Webb, Sr., Secretary Democratic State Central Committee, and Sidney J. Mc-Crory, is sustained, and relator’s suit is hereby dismissed at his cost.