author: PONDER, Justice. FOURNET, Chief Justice

text:
    228 La. 773
    Mrs. Laura C. BUUCK, Widow of Albert G. Brown, v. Mrs. Genevieve FOS, wife of Raymond L. Williams, and Raymond L. Williams.
    No. 42040.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dec. 12, 1955.

      Nicaud & Brister, René R. Nicaud, Hugh H. Brister, New 'Orleans, for appellant,
    Charles G. Merritt, New Orleans, for ap-pellees.
   PONDER, Justice.

The plaintiff, Mrs. Laura C. Buuck Brown, brought suit on September 14, 1953, against the defendants, Mr. and Mrs. Raymond L. Williams, to set aside a transfer of property to defendants on the ground that the property was obtained from her through fraud and in the alternative that the purported sale was a donation omnium bonor-um. The plaintiff died on October 15, 1953, before any pleadings had been filed by ,the defendants in the case. Her testamentary executrix was substituted plaintiff. Thereafter, the defendants filed a plea of abatement and, in the alternative, an exception of no cause or right of action. The trial judge, after submission of the plea and the exception, sustained the plea of abatement and the exception of no cause or right of action and dismissed plaintiff’s suit. The judgment dismissing the suit was signed on July 15, 1954. The plaintiff has appealed.

The appellant contends that the action did not abate even though answer was not filed or issue joined. Appellant relies on the holdings in Todd v. Young, 16 La.Ann. 162 and McCord v. West Feliciana R. Co., 1 Rob. 519. Appellant also contends that Article 21 of the Code of Practice has been amended by Act 57 of 1954 specifically providing that an action would not abate at the death of one of the parties after suit was filed; that Act 59 of 1954 amending Section 3349 of Title 13 of the LSA-Revised Statutes provides that there are no exceptions to the rule that an action does not abate by the death of one of the parties after suit has been filed; and that this applies to all actions "now pending as well as those which may be hereafter instituted.”

The amendments to the article of the Code of Practice and the section of the Revised Statutes, aforementioned, became effective on July 28, 1954, after judgment in this case had been rendered by the district court, after the order of appeal had been granted, and after the appeal bond had been posted on July 26, 1954.

’We have examined the authorities cited by the appellant and find they are not applicable because, in both, suit was brought . by partners, one of whom died, and the court held that his legal representative could be made a party to the suit. These cases did not present the situation where an only plaintiff was involved.

The appellant contends that the amendment to Article 21 of the Code of Practice and the amendment to LSA-R.S. 13:3349 is procedural and should be given a retrospective effect. While, on the other hand, the appellees take the position that these procedural provisions of the law cannot be given retrospective effect because appellees had a final judgment at the time these provisions became effective and, if they were given retrospective effect, it would deprive them of a vested right in violation of Article 4, § 15 of the LSA-Constitution of Louisiana.

Under the provisions of Article 539 of the Code of Practice a final or definitive judgment is one which decides all of the points in controversy. Article 565 of the Code of Practice authorizes an appeal from suck judgments. The appeal merely suspends the execution of the judgment pending review. Castelluccio v. Cloverland Dairy Products Co., 165 La. 606, 115 So. 796. Article 548 of the Code of Practice provides that “A judgment when once rendered, becomes the property of him in whose favor it has been given; and the judge cannot alter the same, except in the mode provided by law.” Therefore, the amendments to the Code of Practice and the Revised Statutes, relied upon by the appellant, cannot be given a retrospective effect in this case because to do so would deprive the ap-pellees of a vested right in violation of the Constitution.

Article 21 of the Code of Practice, before the amendment of 1954, provided: “Actions do not abate by the death of one of the parties after answer filed.” This provision of the law contemplates the abatement of actions prior to the filing of an answer. Article 361 of the Code of Practice provides: “If after issue joined either the plaintiff or defendant die, it is not necessary to recommence the action * * This provision of the Code of Practice recognizes that it is necessary to recommence the action if death occurs prior to the joining of issue. These articles of the Code of Practice were controlling at the time the judgment was rendered in the district court and must therefore be applied in this case.

While the suit appears to present a heritable action it is not necessary for us to pass on this question because' it can be raised if and when the suit is recommenced.

For the reasons assigned the judgment of the lower court is amended by setting aside that part of the judgment sustaining the exception of no cause or right of action, and as thus amended the judgment is affirmed at appellant’s cost.

SIMON, J., dissents.

FOURNET, Chief Justice

(dissenting).

I cannot subscribe to the majority view that a heritable action abates upon the death o »-H a o o a a 9-.S 2 d Jjj t> •a in | !§ p p a4 n* ii p g | ft o> 3 £ 9 V & a* o cn tr. c-b a* vi ° a P o 9* 3 a *<D >■* J3 two 3 2 o G G ° O V o -3 ,<l> .a ta ^ o u <D <V 2 cS o o ft ft O jj g-1 ft 3' O (TC? % 'g a S


source: Caselaw Access Project

author: FOURNET, Chief Justice.

license: Public Domain

text:
    228 La. 779
    Mrs. Lettie B. BARCLAY v. DEPARTMENT OF COMMERCE AND INDUSTRY.
    No. 42070.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dee. 12, 1955.

      Cadwallader & Dameron, Baton Rouge, Mary Bird Perkins, Baton Rouge, of counsel, for appellant.
    Fred S. LeBlanc, Atty. Gen., W. C. Per-rault, 1st Asst. Atty. Gen., W. D. Atkins, Asst. Atty. Gen., for appellee.
   FOURNET, Chief Justice.

The plaintiff, Mrs. Lettie B. Barclay, a classified employee of the Department of Commerce and Industry prior to April 20, 1954, having appealed to the State Civil Service Commission from the action of Elmer D. Conner, Executive Director of the Department, in dismissing her from her position as Building Guide Supervisor at the State Capitol, Baton Rouge, is now appealing from the Commission’s ruling dismissing her appeal — her contention being that the said ruling was based on reasons other than the written reasons upon which the hearing was had and therefore should be reversed.

The reasons given for the appellant’s dismissal, incorporated in a letter to her dated March 29, 1954, were those of: “(1) Insubordination to an immediate superior; (2) Health conditions that prevented the fulfillment of the requirements of this position; (3) Lack of adaptability.” Subsequent letters, dated April 15 and April 20, 1954, identical in content, supplemented the reasons by giving certain detailed information under each of the causes above enumerated. The Commission, following a hearing on the merits, found “Appellant has established that the second and third reasons given by the Department in its letter of April 15, 1954, were without foundation;” it is therefore unnecessary that the details supporting these reasons be included herein.

The particulars supplied by the Department in support of the first cause for dismissal, that of insubordination to an immediate superior, were that "On Thursday, March 25, and on Friday, March 26, you advised Mr. Edwin L. Reed, your immediate superior, of your intentions of exerting influence otitside the Department of Commerce and Industry to reverse his decision to describe your work performance as unsatisfactory. On these days, contrary to warning by Mr. Reed, you approached persons outside the employ of the Department of Commerce and Industry, soliciting their assistance in exerting influence to reverse Mr. Reed’s action. On Friday morning, March 26, you were disrespectful and insubordinate to Mr. Reed when this action was called to your attention. ' You advised Mr. Reed that you intended going ‘over your head;’ you told him that there were many individuals in the state ‘more influential’ than he; you also told Mr. Reed, T have no more fear of you than I would a jackass’.” (Italics ours.)

The words italicized above, i. e., the first and second sentences of the reasons supporting cause of dismissal No. 1, were deleted before the case went to trial as a result of argument by counsel for the appellant that even assuming all charges were proved to be true, there was still not shown sufficient grounds to justify the dismissal of appellant. The Commission decided, after consultation among the members, that it would hear the case on the merits as to all three reasons for dismissal but that the specification under item 1 would consist only of the portion which was not deleted.

Following the trial, the Commission found “that appellant did solicit the assistance of individuals not in the employ of the Department in an effort to exert influence to reverse a service rating and that she did have an argument with Mr. Reed, her immediate superior, concerning this action and also concerning her service rating. Appellant admitted that during the course of this argument she had called Mr. Reed a ‘rat’. * * * She had the right to discuss her service rating with her immediate superior, but her disrespectful conduct and antagonistic attitude cannot be condoned and was sufficient cause for disciplinary action,” and dismissed her appeal.

Counsel for the appellant contends here that the decision of the Commission should be reversed because (1) an affirmative finding was made on the accusation that •appellant had solicited the assistance of persons outside the Department to exert influence on Reed, notwithstanding that proof thereof was inadmissible because of the deletion of the first two sentences in specification No. 1; (2) the last two sentences of the first specification, all that remained of the charge of insubordination, failed to allege facts which, even if proved, would support the charge, i. e., failed to state that the appellant had refused to obey Reed or that she had disregarded any orders or instructions given by him — this being the only way in which she could have been insubordinate; and (3) the Commission had affirmed the appellant’s dismissal on grounds of disrespectful conduct and an antagonistic attitude, which cannot be classified as insubordination.

While it is true that in the early stages of the hearing appellant’s counsel sought to restrict testimony concerning the claimed insubordination to the events of Friday morning, March 26, this proved to be difficult — not only because the happenings of the previous day were a part of the same occurrence but also because the case was being heard on the merits of the other two reasons for dismissal (condition of health and lack of adaptability). Much of the evidence upon which the Commission based its conclusion was admitted without objection, and in examining his own witness counsel for appellant opened the door to testimony which he now claims was inadmissible.

We agree with the Commission that appellant had a right to defend herself and to discuss her service rating with her immediate superior; additionally, she had a remedy by appeal as fixed by civil service rules, to seek a modification of the unsatisfactory report. While on trial of the case she denied categorically that she had called Reed a jackass and had threatened to go over his head, she admitted that she had called him a rat, terminating her discussion with what might be termed disrespectful language to her immediate superior, as well as insubordination by disregarding orders. These are matters which we cannot review.

For the reasons assigned, the ruling of the Commission is affirmed.

      . Although the dismissal was originally to have been effective as of date of the first letter, appellant’s immediate appeal to the Commission resulted in a ruling, on April 20, 1954, that the first notice did not conform to its rules and had not been cured by the second, of April 15th, whereupon appellant was ordered restored with full pay up to noon of April 20, 1954. It was then agreed, by stipulation of counsel for both parties, that the letter of April 15 would be considered as notice of discharge effective April 20, 1954, and that the Commission might proceed to hear the case instanter.

      . It appears that the situation arose when Edwin L. Reed, Director of Advertising and Promotion for the Department, and appellant's immediate superior, advised her of an unsatisfactory service rating he had prepared concerning her work.

      . By provisions of LSA-Const. of 1921, Art, 14, Sec. 15(0) (1), and Rule XXII, Revised Rules of the Supreme Court of Louisiana, the appeal is limited to a review of questions of law.


text:
    228 La. 785
    SUCCESSION of Mrs. Eloise McFarland Weitner BROWER.
    No. 42455.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dec. 12, 1955.

      Fred S. LeBlanc, Atty. Gen., Carey J. Ellis, Sp. Atty., Rayville, for Inheritance Tax Collector.
    McIntosh, Hester & Gilfoil, Lake Providence, for plaintiffs, appellees and respondents.
   FOURNET, Chief Justice.

These consolidated cases are before us on certiorari granted the state in order that we might review the judgments of the Court of Appeal for the Second Circuit reversing the lower court and holding that the claim of the state for inheritance taxes levied against the forced heirs of Mrs. Eloise McFarland Weltner Brower (who died in 1925) and her husband, David McCoy Brower (who died in 1928), prescribed under the 1938 amendment to Section 19 of Article XIX of the Constitution of 1921, LSA, providing that “all taxes and licenses, other than real property taxes, shall prescribe in three years from the 31st day of December in the year in which such taxes or licenses are due.”

The trial judge, in overruling the plea of prescription, expressed the opinion this provision governed taxes payable on a fixed date and could, therefore, have no application to inheritance taxes since they are not payable on a fixed date but only after proper proceedings and judgment of court. The appellate court reversed this ruling and sustained the plea on the theory that, applying and attaching to the word “due” its ordinary meaning, the inheritance taxes became due at the date of death, even though the amount was then unknown, since it was, at that moment, “owed or owing as a debt.” See, 80 So.2d 217 and 222.

We disagree with the conclusion of the learned trial judge that the 1938 amendment applies only to those taxes that are currently due without the necessity of court procedure, for the amendment specifically provides that “all taxes * * * shall prescribe,” and there is only one exception, i. e., real property taxes. This leaves for our consideration the sole question of when inheritance taxes become due.

The heirs contend the inheritance tax, if any, was due immediately upon the death of their mother and father, and, accordingly, that all claims of the state therefor prescribed under the 1938 amendment three years from December 31 of the year in which they died. They contend, alternatively, that these taxes became due six months after death inasmuch as Act 127 of 1921, LSA-R.S. 47:2401 et seq., authorized the tax collector to institute proceedings to have the tax fixed by court upon the failure of the executor, administrator, or heir to do so within six months of death, and also provided that any tax found to be due should bear interest beginning six months after death.

The state, on the other hand, contends the word “due” in this amendment must be considered and construed in connection with the particular type of tax under review and the statutory provisions relative thereto, and, consequently, that the prescriptive period did not begin to run at the moment of death, or six months thereafter, but, instead, from the opening of the succession in 1949 under Act 82 of 1924, the act in effect at the time of the death of Mr. and Mrs. Brower, and that the 1938 amendment merely had the effect of reducing the prescriptive period from five to three years. The state argued, further, and alternatively, that the tax could not be due at the moment of death, and/or six months thereafter, for the reason that an inheritance tax, unlike an estate tax, is a tax on the privilege of the heir to take the legacy or donation left him, and the amount of the tax cannot be due until the value of the property he is to receive has been judicially determined and the tax computed after allowance for all legal exemptions and deductions; further, that the heir is not entitled to take such property* until he has accepted the legacy or succession and been legally put in possession I thereof by order of court after he has paid the tax as thus judicially fixed.

The legislature of 1921, pursuant to Section 7 of Article X of the 1921 constitutional provision that “Taxes upon inheritances, legacies and donations, or gifts made' in contemplation of death, may be graduated, classified or progressive”, adopted Act 127 imposing such a tax upon the heir, donee, or legatee, as the case may be, predicated upon the value, as of the time of death or donation, of the inheritance, legacy, or donation, and upon the relationship or want of relationship of the particular recipient to the decedent or donor. This act also details the procedure to be followed in having the amount of the tax judicially determined.

While the act implies the succession must be opened by the proper parties (executor, administrator, or heir) within six months from the date of death, failing which the tax collector is authorized to file the proceedings to have the tax fixed, a study and analysis of this entire legislation leaves the inescapable conclusion that until the amount the legatee, heir or donee is to receive is judicially determined and the tax thereon fixed after due consideration to the deductions and exemptions allowed by law (which are dependent upon the relationship of the recipient to the benefactor), the tax is not due and payable, because until then it is not known if the tax is, in fact, due, or the amount thereof.

The act makes it unlawful for any heir to be in possession, or to dispose, of any part of the inheritance until he shall have, secured authority from the court for such possession, Section 3, -R.S. 47:2413, and no legacy shall be delivered “until the tax thereon shall have been fixed and paid”. Section 10, -R.S. 47:2408. Moreover, once the tax: has been fixed by the court, the heir is given 30 days within which to pay it, the tax collector being authorized, thereafter, to obtain court order for the sale of the property so that the proceeds may be applied to the payment of the tax so fixed. Section 9, -R.S. 47:2408.

The mere fact that in Section 24, -R.S. 47:2420, provision is made for the payment by the heir,, donee, or legatee of one per cent per month on the tax levied, beginning six months after death, and two per cent per month beginning twelve months after death, does not have the effect of fixing the date upon which- the inheritance tax is due, but¡ is merely a penalty imposed upon the heir, donee, or legatee for failing to promptly institute proceedings to have the exact - amount due judicially fixed and to pay the same. This is evidenced by the further provisions in this same section to the effect that (1) the heir, donee, or legatee may stop “the running of interest against him by paying the amount of his tax with accrued interest, estimated or ascertained, or by tendering the same to the tax collector in the manner prescribed by the general law”; (2) the interest will be remitted in those cases in which the settlement of the succession is bona fide contested, and when it is shown that the beneficiary was ignorant' of the inheritance. (Emphasis supplied.)

It is our conclusion, therefore, that all inheritance taxes imposed by Act 127 of 1921 under the constitutional authorization of that year, were not due until final judgment of court fixing the amount payable.

The record shows, that Mrs. Brow-er died November 17, 1925, and that her husband died July 9, 1928. But. the heirs did not institute these proceedings until September 16, 1949, at which time they ruled the sheriff to show cause “why the inheritance taxes, if any there be, owing by the” heirs “should not be fixed by the court.” They did not file -their prescriptive plea until June 8, 1951, after the tax collector questioned the value placed on the property in the succession by the heirs in the affidavit filed by them. Clearly, therefore, the plea of prescription is without merit, as the judgment rendered by the district court on June 24, 1954, has never become final, due to the appeal to the Court of Appeal for the Second Circuit, which is now before us for review. -

Under the plain provisions of Section 11 of Article VII of the Constitution of 1921, as contended by the state, we are, in a case ordered up on a writ of cer-tiorari to the courts of appeals, given the same power and authority in the case “as if it had been carried directly by appeal” to this court. However, as pointed out in Mataya v. Delta Life Ins. Co., 222 La. 509, 62 So.2d 817, we deem it the better practice in those cases ordered up for the determination of a matter of law, to remand it to the appellate court where that court has not had the opportunity, or has found it unnecessary, to review the merits of the case while before it. The case will, therefore, be remanded for the purpose of having the Court of Appeal for the Second Circuit review the findings of the district court as to the amount of inheritance tax due and render such judgment as is found to be appropriate. ,

For the reasons assigned, the judgment of the Court, of Appeal for the Second Circuit is reversed, the plea of prescription is overruled, and the case is remanded to the Court of Appeal for the Second Circuit for further proceedings consistent with the views herein expressed. The costs in this court are to be taxed against the defendant heirs, the respondents in this court.

      . Act 82 of 1924, which was not repealed until the adoption of the LSA-Itovised Statutes in 1950, provided that “all actions for the recovery of inheritance taxes due the State * * * shall prescribe by the lapse of * * * five years against the heirs of any deceased persons, starting from the date of the opening of the Succession of said deceased person in one of the Courts of this State.”

      . It is interesting to note that prior legislation on this subject had a long and a troubled history. . Act 95 of 1828, the first statute levying an inheritance tax in Louisiana, was repealed by the acts of 1830 (page 76), revived by the acts of 1836 (page 146), and, in slightly altered language, incorporated in acts 154 of 1842, 194 of 1850, and 315 of 1855. The provisions remained in this condition until preserved in Articles 1221, 1222, and 1223 of the Civil Code of 1870 and incorporated in the Revised Statutes of 1870 as Sections 13, 1113, 1470, 3345, 3346, 3683, and 3684. Without mention of the other sections of this revision, Act 86 of 1877 specifically repealed Sections 3683 and 3684 as well as the codal articles, the latter being re-enacted by Act 130 of 1894 only to be held unconstitutional in 1897, Succession of Givanovich, 50 La.Ann. 625, 24 So, 679, and Succession of Sala, 50 La.Ann. 1009, 24 So. 674, because, although a revenue measure, the act had originated in the senate and not in the house. These provisions were never thereafter reenacted, all subsequent legislation on the subject, prior to the 1921 constitution and act, being in conformity .with Sections 235 and 236 of the Constitution of 1898, i. e., Acts 45 of 1904, 109 of 1906, 42 of 1912, and 51 of 1918. See, Succession of Rixner, 48 La.Ann. 552, 19 So. 597, 32 L.R.A. 177.

      . The sheriff had discovered the property was listed at an amount less than the assessed value at the time of death, as reflected by the rolls.

      . In all of the cases relied on by the state, Pipes v. Gallman, 174 La. 257, 140 So. 40; Wylie v. Shreveport Railways Co., 176 La. 193, 145 So. 513; and Robichaux v. Realty Operators, 195 La. 70, 196 So. 23, the appellate court had reviewed the merits of the case on the facts before the writ was granted.


text:
    228 La. 795
    SUCCESSION of David McCoy BROWER.
    No. 42456.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dec. 12, 1955.
    Fred S. LeBlanc, Atty. Gen., Carey J. Ellis, Sp. Atty., Rayville, for Inheritance Tax Collector.
    McIntosh, Hester & Gilfoil, Lake Providence, for plaintiffs, appellees and respondents.
   FOURNET, Chief Justice.

The issues presented for our determination in this case are identical with those raised in the companion case of Succession of Brower, La., 84 So.2d 191,* No. 42455, with which it was consolidated for trial, and the decision in that case is, therefore, controlling here.

For the reasons assigned in Succession of Brower, La., 84 So.2d 191,* No. 42455, handed down this day, the judgment of the Court of Appeal for the Second Circuit is reversed, the plea of prescription is overruled, and the case is remanded to the Court of Appeal for the Second Circuit for further proceedings consistent with the views herein expressed. The costs in this court are to be taxed against the defendant heirs, the respondents in this court.


author: McCALEB, Justice.

text:
    228 La. 796
    STATE of Louisiana v. Horace PEREZ.
    No. 42334.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dec. 12, 1955.
    Robert S. Link, Jr., New Orleans, Jimmie R. Major, Baton Rouge, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., J. St. Clair Favrot, Dist. Atty., Scallan E. Walsh, 2nd Asst. Dist. Atty., Baton Rouge, for appellee.
   McCALEB, Justice.

Appellant was convicted of public bribery as denounced by Article 118 of the Criminal Code, R.S. 14:118, and sentenced to pay a fine of $1,000 and serve five years at hard labor in the State Penitentiary. During the proceedings below, appellant reserved two bills of exceptions which were taken to the overruling of a motion for a new trial and a motion in arrest of judgment. On this appeal, he relies solely on these bills for a reversal of his conviction.

The transcript shows that, after sentence was pronounced on January 25, 1955, appellant moved for and was granted an order of appeal to this Court. On March 28, 1955, some 63 days thereafter, his counsel presented to the trial judge the two bills of exceptions reserved to the overruling of the motions for a new trial and in arrest of judgment. The Judge signed the bills but did not date them nor did he attach a per curiam or a certificate that a per curiam was not necessary.

The failure of, appellant to present his' bills for the judge’s signature prior to the taking of the appeal renders them fatally defective. Thé perfection of the appeal divested the judge of jurisdiction, save for ministerial matters not in controversy on appeal (see Article S45 of the Code of Criminal' Procedure, R.S. 15:545) and his signature to the bills thereafter obtained could not cure their invalidity. State v. Dartez, 222 La. 9, 62 So.2d 83 and Authorities there cited; State v. Scott, 227 La. 198, 78 So.2d 832 and State v. Parker, 227 La. 916, 80 So.2d 863.

Accordingly, since the bills may not be considered and there being no errors patent on the 'face of the record, the conviction and sentence are affirmed.

      . The judge suspended the imprisonment portion of the sentence and placed appellant on probation.

      . See Articles 499 and 564 of the Code of Criminal Procedure, R.S. 15:499, 15.564.


text:
    228 La. 799
    Succession of Simmie Eugene PIGG.
    No. 40162.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Morgan, Baker & Skeels, Shreveport, for defendant-appellant.
    A. C. David, Shreveport, for plaintiff-appellee.
   McCALEB, Justice.

Mabel Wright Pigg, defendant herein,, has prosecuted this appeal from a judgment denying recognition of her claim as putative wife of the late Simmie E. Pigg, with whom she was living at the time of his death on June 5, 1947 at his domicile in Shreveport, Louisiana. The salient facts of the case are not disputed and we find them to be as follows:

Decedent, Simmie ,E. Pigg, married Nona May Pigg on March 17, 1917 and of this marriage four children were' born, who are plaintiffs herein. On June 19, 1929, Mrs. Pigg, having become mentally ill, was committed to the Central Louisiana State Hospital located at Pineville, Louisiana. She is still confined there and is represented herein by her curator, Charles Monroe Pigg, a brother of decedent, who, with decedent’s children, is seeking to obtain the entire estate from defendant.

In 1937, defendant began living with the deceased in open concubinage, this relationship continuing until April 28, 1945, when the parties were married. Prior to the marriage, decedent had filed suit in the First Judicial District Court for the Parish of Caddo for a divorce from his first wife under the Two Year Separation Law, R.S, 9:301-9:303, in which he had a curator-ad-hoc appointed to represent her by falsely stating that her whereabouts were unknown, and, on November 2, 1944, secured a judgment by default founded on this substituted citation and service.

Plaintiffs claim that this judgment of divorce is null. Defendant takes no issue with that contention but maintains that she is a putative wife. Consequently, the only question presented for our determination is the correctness of the ruling of the trial judge that defendant was in bad faith at the time of her marriage to decedent and, therefore, did not acquire this status.

Article 117 of the Civil Code provides that a null marriage nevertheless produces civil effects “ * * * if it has been contracted in good faith * *” and Article 118 declares “If only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor * * It is "well settled that the good faith referred to in these Articles means an honest and reasonable belief that the marriage was a valid one at the time of its confection. Good faith is presumed and the burden of proving the contrary rests on the party who alleges it. Succession of Navarro, 24 La.Ann. 298; Smith v. Smith, 43 La.Ann. 1140, 10 So. 248; Succession of Marinoni, 183 La. 776, 164 So. 797; Succession of Chavis, 211 La. 313, 29 So.2d 860 and Funderburk v. Funderburk, 214 La. 717, 38 So.2d 502. Furthermore, if there is any doubt on the is.sue, it is to be resolved in favor of good faith. Jones v. Squire, 137 La. 883, 69 So. 733 and Funderburk v. Funderburk, supra.

With these principles in mind, we address our attention to the facts of the case. It appears from the evidence that, when the decedent began living with defendant, she was aware that his wife was in an insane asylum and that he could not marry her unless and until he obtained a divorce. Decedent’s family, his children, mother and brother (the curator of the first Mrs. Pigg) were much concerned as to the social consequences resulting from this relationship and, while they did not outwardly disapprove of decedent and defendant living together as man and wife as they visited decedent’s home frequently, they would on these occasions urge decedent to marry defendant. After the divorce and marriage none of these relatives suggested to defendant that the divorce was legally questionable or that decedent was not her lawful husband. Indeed, they, as well as other members of the community, considered them as husband and wife and treated them accordingly.

It is also clear that defendant, who was undoubtedly devoted and loyal to decedent, was satisfied with her station in life as his concubine and did not press upon him the matter of marriage. She simply says that they discussed the question between themselves many times and that decedent told her that he was going to get a divorce and marry her; that she had nothing whatever to do with the securing of the divorce and that, after he obtained it, she contracted marriage with him.

The district judge ruled defendant’s testimony, that she believed decedent could legally marry her, was not acceptable because she evidently knew that he could not obtain a valid divorce from his wife while she was in an insane asylum and that she was “not greatly concerned about her social status” having lived with decedent as his concubine for eight years. This opinion is also predicated in part upon statements attributed to decedent which were purportedly made in the presence of defendant, that he could not marry while his first wife was confined in an insane asylum and a critical appraisal of an assertion of defendant that she and decedent did not know that he could obtain a divorce but that later he found out that it was possible. From this, the judge draws the conclusion that defendant must, of necessity, have known that the divorce obtained by decedent was fraudulent.

We do not think that the inferences drawn by the judge are justified by the evidence. The fact that defendant lived in concubinage with decedent or was not greatly concerned about her social status does not, of itself, make her unworthy of belief or provide a ground for holding that she was in bad faith when she contracted marriage with decedent. Nor is the circumstance that she might have believed that decedent could not have obtained a divorce from his first wife, as long as she was confined to an insane asylum, detract from defendant’s good faith in view of the fact that a divorce was actually granted by a court of competent jurisdiction — in which judgment she was entitled to place reliance in the absence of personal knowledge that it was procured through fraud. The record is not only bare of any evidence indicating that defendant had knowledge that the judgment was obtained through misrepresentation, but proof produced by the defendant corroborates her statement that she was without any inkling of the grounds or the circumstances under which the divorce decree was secured.

In the strikingly similar case of Funderburk v. Funderburk, supra [214 La. 717, 38 So.2d 504], it was said:

“There is not a scintilla of evidence in the record, unless we are to resort to conjecture as suggested by counsel for defendant, to show that the plaintiff had any knowledge of the nullity of the purported divorce decree. To assume, as also suggested by counsel, that bad faith can be imputed to the plaintiff because on the face of the decree it shows it was rendered by the Twelfth Judicial District Court for the Parish of Avoyelles (a court which did not have jurisdiction of the parties), could only result in the further assumption that the plaintiff was well versed in the law on this subject matter.” (Words in parenthesis ours.)

So we observe here that to conclude, in the absence of evidence, that defendant knew or should have known that the divorce obtained by decedent was based on fraudulent grounds is to deal in the realm of conjecture and to supply an inference, founded on disbelief of a witness, in place of proof for the purpose of rebutting a presumption of good faith. This will not do. We hold that the record supports the view that defendant is a putative wife as defined by law and entitled to the civil effects of her marriage with Simmie E. Pig'g-

Since the trial judge, by reason of his ruling herein, did not pass upon defendant’s rights as a putative wife, the case will be remanded to him for the purpose of determining the respective rights of thé parties and making such disposition of the property of the estate as may seem meet.

The judgment appealed from is annulled and reversed and the case is remanded to the district court for further proceedings in accordance with law and consistent with the views herein expressed.

      . It is the established jurisprudence that mere disbelief of a defendant’s testimony cannot be considered as affirmative proof when none exists upon which a judgment for plaintiffs could be based. New Orleans & N. E. R.. Co. v. Redmann, La. App., 28 So.2d 303; Pelican Well Tool & Supply Co. v. Sebastian, 212 La. 217, 31 So.2d 745 and Keller v. Summers, 192 La. 103, 187 So. 69. Cf. Ellis v. Kolb, La.App., 196 So. 89.


text:
    228 La. 807
    Mrs. Emma Lou Joffrion DORE v. A. P. TUGWELL, Treasurer of the State of Louisiana et al. Mrs. Lettie Horn BURGESS v. Allison R. KOLB, Auditor of the State of Louisiana et al.
    Nos. 42426, 42427.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dec. 12, 1955.

      Fred S. LeBlanc, Atty. Gen., W. C. Perrault, ■ First Asst. Atty. Gen., Carroll Buck, Second Asst. Atty. Gen., Percy J. Landry, Jr., Sp. Asst. Atty. Gen., for defendants-appellants.
    Frank S. 'Craig, Jr., White & May, Benton & Moseley, Baton Rouge, for plaintiffs-appellees.
   McCALEB, Justice.

The widows of two judges are seeking in these proceedings the issuance of writs of mandamus ordering the State Auditor and State Treasurer to approve their applications for, and to pay to each of them, a widow’s pension to which they assert they are entitled under the provisions of Act 697 of 1954, R.S. 13:5.

Judge Hugo Dore died on April 28, 1953, at the age of 63. At that time, he was Senior Judge of the Court of Appeal/First Circuit, having served continuously as a member of that court since 1935. The term he was serving at the time of his death does not expire until 1962'and, if he had lived, he would have been eligible in 1955 for retirement under the,provisions of Section 8 of Article VII of the Constitution, as he would have reached the age of 65 and would have completed more than 20 years of service as a Judge of a court of record. Judge Dore’s widow, was married to her late husband in 1914 and resided with him continuously until his death.

Judge Hal A. Burgess died on January Í9, 1947, while serving as a Judge of the-Eleventh Judicial District -Court. He had been elected to that office in 1924 and served continuously until the time of his death. Had he lived to the end of. the term for which he was elected in 1942, he .would have been eligible for retirement under Section 8 of Article VII of the Constitution since he would have then completed more than 23 years of continuous service as a Judge of a court of record. Mrs. Burgess married her late husband in 1914 and lived with him continuously until his death.

Following the enactment of Act 697 of' 1954, which provides for the payment of a pension to the spouses of deceased judges possessing certain qualifications for eligibility, petitioners filed applications with the proper state officials for the benefits therein provided. The applications were refused on the ground that petitioners were ineligible under the terms of the Act. Hence these suits.

The respondents concede the facts, as above stated, but assert that they should not be required to recognize the claim- of petitioners for two reasons: (1) that Act 697 of 1954 is unconstitutional, being viola-tive of Sections 3 and 12 of Article IV and Section 8 of Article VII of the State Constitution, as amended, and (2), alternatively, should it be held otherwise, petitioners are ineligible under the provisions of the Act for the benefits therein granted.

After a hearing in the district court, where the cases were consolidated for purposes of trial, the alternative writs of mandamus theretofore issued were made peremptory and respondents were ordered to comply with petitioners’ demands. Respondents have appealed from the adverse-judgments, reasserting in this court the contentions made below.

Before scrutinizing respondents’ plea of unconstitutionality, we must initially determine whether these State Officers, charged merely with the performance of ministerial duties in relation to the statute, have any interest or right to challenge its validity. Petitioners objected in the district court to the consideration of the plea of unconstitutionality, citing State ex rel. New Orleans Canal & Banking Co. v. Heard, 47 La.Ann. 1679, 18 So. 746, 47 L.R.A. 512, as authority for their position. The Judge thought the point well taken but, nevertheless, as a matter of precaution, examined respondents’ contentions and held the statute constitutional,

The Heard case, which represents the majority view in this country, enunciates the general rule that a public officer, charged with statutory duties of ai-ministerial character, is without interest or right to question the constitutionality of the statute affecting or prescribing such duties as a defense to a mandamus proceeding to compel their performance. See Annotation 129 A.L.R. 941, supplementing 30 A.L.R. 378, and cases there cited. This doctrine is founded in the basic tenet that, forasmuch as legislative acts are entitled to great respect and are presumptively constitutional, it would be inimical to public policy to allow a party without interest in a statute, and who is not injuriously affected by its enforcement, to assail its validity. City of New Orleans v. Dameron, 149 La. 535, 89 So. 685.

The respondents profess that the holding in the. Heard case was prompted by the peculiar facts therein • under consideration and, hence, is inapplicable here. Furthermore, they declare that that decision has not been approved in the later jurisprudence on the subject, the case of State ex rel. Huggett v. Montgomery, La.App., 167 So. 147, being cited in support of this proposition.

There is no substance in the contention that there is a material difference between the instant suits and the Heard case, which was a mandamus proceeding to compel the State Auditor and State Treasurer to warrant and pay certain cláims as directed by an Act of the Legislature. The respondents there, as here, assailed the constitutionality of . the statute but the court held that they were without interest to- do so.

Nor do we find merit in the argument that the doctrine of the Heard case has not been followed in the later jurisprudence as we know of no pronouncement by this ■Court wherein the soundness of that decision has been questioned.

State ex rel. Huggett v. Montgomery, supra, relied on by respondents, was a mandamus proceeding to compel the tax collector of the City of New Orleans to cancel certain taxes in conformity with Act 161 of 1934, as amended, which entitled relator to a cancellation of all assessments for taxes, State and City, except those for nonpayment of which adjudication had been made to the State and City respectively. The respondent Tax Collector refused to cancel the taxes, until ordered to do so by a court of competent jurisdiction, on the ground that the City Attorney had advised him that the Act upon which relator relied was unconstitutional. There was judgment in favor of relator in the district court, from which the City of New Orleans and Orleans Parish School Board (not the respondent tax collector) appealed, alleging that they were adversely affected thereby. On motion to dismiss the appeal, relator contended, inter alia, that the appellants were without right or interest to raise the constitutionality of the Act in question. This motion was overruled on the authority of City of Gretna v. Bailey, 141 La. 625, 75 So. 491 and, in its discussion, the Court observed that there was uncertainty in the jurisprudence of this Court on the subject.

Although the decision in the Huggett case is correct as the City of New Orleans and the parish school board, having a real interest, were entitled to assert the unconstitutionality of the Act, the remark of the Court concerning the uncertainty of our jurisprudence in these matters was not appropriate. This statement undoubtedly emanated from the failure of the Court to recognize the difference between cases wherein political subdivisions have been permitted to raise the constitutionality of a legislative act which adversely affects them, City of Gretna v. Bailey, supra, State ex rel. Nicholls v. Shakespeare, 41 La.Ann. 156, 6 So. 592 and State ex rel. Board of School Directors v. City of New Orleans, 42 La.Ann. 92, 7 So. 674 and those matters, State ex rel. New Orleans Canal & Banking Co. v. Heard, supra; Basset v. Barbin, 11 La.Ann. 672 and see Hommerich v. Hunter, 14 La.Ann. 225, in which it is held that an executive officer cannot defend, on the ground of unconstitutionality, a proceeding brought against him to require his performance of pure ministerial duties under a legislative act.

The instant cases fall squarely within the doctrine of the Heard case and we consequently conclude that respondents are without right to question the constitutionality of Act 697 of 1954.

Respondents also contend that petitioners are not entitled to the pension provided by Act 697 of 1954. Sections 1 and 2 of the statute, which are pertinent to this point, read as follows:

“Section 1. Be it enacted by the-Legislature of Louisiana that upon the death of any retired judge of a Court of Record of the State of Louisiana, now or hereafter eligible for a pension or retirement pay under the laws of the State of Louisiana, regardless of whether or not such judge has actually retired that the spouse of said judge shall receive as a pension one-half 0Á) of the pension or retirement pay previously paid to the said retired judge of a Court of Record, or for which such judge would be eligible if he had retired immediately before death so long as said spouse shall remain alive and unmarried provided that this pension shall also be paid to the surviving widow of any judge who had retired or who would have been eligible for retirement at the end of the term of office for which he had already been elected and who died before the effective date of this act. [Italics ours.]
“Section 2. This act shall be applicable only to spouses of Judges of Courts of Record who have been married to the said judges at the date of death for a period of ten years prior to the retirement of such judge or ten years prior to the date on which said judge became eligible for retirement.”

It is the position of respondents that, whereas petitioners fall within the classification of surviving widows entitled to the pension under the proviso contained in the first section of the Act, which we have above italicized, they are nonetheless ineligible as they are unable to fulfill the additional qualifications prescribed by Section 2, since neither Judge Dore nor Judge Burgess were retired or eligible for retirement at the dates of their death, and, therefore, petitioners could not have been married to them for ten years prior thereto.

It is shown by the Legislative Journals, which were admitted in evidence, that Senate Bill No. 239 (which later became Act 697) as amended after its introduction, provided pensions for the spouses of judges within three classifications, (1) judges presently living who had 'retired either before or after the passage of the Act, (2) judges presently living who were then eligible for retirement, but who had not retired, and (3) to all other judges upon their becoming eligible for retirement after the passage of the Act.

Section 2 of the Act, as originally drawn and enacted, was sufficient in its verbiage to include the qualified widows of the judges in the categories above mentioned because it made the surviving widow’s right to a pension dependent upon her having been married to the judge at the date of his death for ten years either prior to his retirement or ten years prior to his eligibility for retirement. When the Bill reached the House of Representatives, following its passage by the Senate, it was amended on the floor by the insertion, in Section 1, of the proviso which we have above italicized and, as thus amended, was ■finally enacted as Act 697. This added provision created two new classifications of judges, whose widows were to be accorded pension rights — that is, to the surviving widow (otherwise qualified) of (1) any retired judge who had died before the effective date of the Act, and (2) of any judge “who would have been eligible for retirement at the end of the term of office for which he had already been elected and who died before the effective date of this act.”

Unfortunately, Section 2 of the Statute was not amended before its final passage so as to clearly cover and embrace with appropriate language this second classification of widows of judges, provided for by the floor amendment to the Act. As a result, under a literal reading of Section 2, providing only for the additional qualifications for spouses of the judges coming within the classifications originally contained in the bill, there is no way by which petitioners, who are otherwise eligible, could meet the qualifications prescribed by that Section.

In this situation, the question arises as to the duty of the court in construing the statute. It has been many times said that it is the function of the courts to interpret the laws so as to give them the connotation the lawmaker obviously intended and not to construe them so rigidly as to give them preposterous or odd meanings. State ex rel. Womack v. Jones, 201 La. 637, 10 So.2d 213; Berteau v. Police Jury of Parish of Ascension, 214 La. 1003, 39 So.2d 594 and Webb v. Parish Council of Parish of E. Baton Rouge, 217 La. 926, 47 So.2d 718. The object of the court in construing a statute is to ascertain the legislative intent and, where a literal interpretation would produce absurd consequences, the letter must give way to the spirit of the law and the statute construed so as to produce a reasonable result. Bradford v. Louisiana Public Service Commission, 189 La. 327, 179 So. 442; See also City of Shreveport v. Gregory, 186 La. 407, 172 So. 435.

Sutherland, “Statutory Construction”, 3rd Ed., Vol. 2, Section 4703, states:

“A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently each part or section should be construed in connection with every other part or section so as to produce a harmonious whole.”

Applying the foregoing canons of construction to the cases at bar, it is manifest that, since the Legislature has evinced in clear and unmistakable language its intention in Section 1 of the Act to grant pensions to the wives of judges who died before the passage of the Act, if those judges would have become eligible for a pension during the term they were serving at the time of their death, it is pur duty to' give effect, if possible, to that paramount design.

As stated above, the only basis upon which the petitioners’ eligibility for, the benefits of the Act could be denied is that a literal reading of the language of Section 2 makes it impossible for them to qualify. However, if we consider Section 2 in a broader aspect, it is plain that the legislative purpose in providing the additional qualifications therein stated of marriage for ten years prior to the retirement of the judge at the time of death or ten years prior to the judge’s eligibility for retirement, was to insure that the spouse had lived with the judge during a substantial part of his judicial tenure and thus, to some extent, had contributed to the public service. It would therefore seem conformable with this objective to construe Section 2 of the Act to mean that, if the applicant, otherwise eligible for the pension, had lived with the deceased judge for a period of ten years prior to his retirement, or ten ■ years prior to the time the judge became eligible for retirement, or ten years prior to the time the judge would have become eligible for retirement in case he died before the passage of the statute, she qualifies to receive the benefits of the Act. In this manner, the legislative intent can be given effect and we conceive it our obligation to adopt such a construction as any other would necessarily defeat the purpose of the provisions added to Section 1, which extends the pension rights to the spouses of those judges who passed on before the effective date of the law and who ¡would have been eligible for retirement before the expiration of their term of office.

Since the petitioners had lived with their respective spouses for almost 40 years prior to their deaths, the judge was correct in hplding that they are qualified for the pensions for which they applied.

The judgments appealed from are affirmed.

      . Sometimes called the Louisiana doctrine. See Note 42 L.R.A. at page 513.

      . This case specifically overruled the decision rendered in Mayor & Council of the City of Carrollton v. Board of Metropolitan Police, 21 La.Ann. 447.

      . It was pointed out in the opinion in that matter that, although the Court in State ex rel. Nicholls v. Shakespeare, 41 Ann. 156, 6 So. 592, questioned the propriety of the defendants’ challenge of the validity of the act, it nevertheless considered that defense and sustained the statute’s constitutionality.

      . See also State ex rel. Hall v. Judge of the Tenth Judicial District, 33 La.Ann. 1222 and Crespo v. Viola, 152 La. 1088, 95 So. 256, wherein it is held that a Judge is without interest in raising the constitutionality of a statute.

      . The doctrine of these cases should not be confused with the decisions holding that a public officer, as defendant in a mandamus proceeding, may claim that the interpretation placed on a statute by a particular relator, seeking performance, would be unconstitutional if construed to cover such relator. The latter ruling is distinguishable since the public officer does not contend that the statute is unconstitutional, but merely opposes the interpretation sought by the relator as unconstitutional. If the court rules in favor of the defendant in such an instance, it does not hold that the statute is unconstitutional but merely that the interpretation sought to be placed on the statute by the relator would not be in harmony with the Constitution. This was recognized by the Court in State ex rel. Tulane Homestead Ass’n v. Montgomery, 185 La. 777, 171 So. 28. However, it is to be noted that in that case the inter-vonors, City of New Orleans and Orleans Parish School Board, had a direct interest in assailing the constitutionality of the statute and therefore the court likewise properly upheld their right to do so under authority of City of Gretna v. Bailey, 141 La. 625, 75 So. 491.

      . In Hibernia National Bank v. Louisiana Tax Commission, 195 La. 43, 196 So. 15, 18, it was stated: “It is a recognized rule of statutory construction that the act as a whole ought to be interpreted so that no clause,, .sentence, or word shall be superfluous, or meaningless, if that result can be avoided.” Copious citations are given as authority for the rule.


text:
    228 La. 823
    Mrs. Jennie Hobbs BARBOUR v. Clyde A. BARBOUR, III.
    No. 42128.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Reed, Reed & Reed, New Orleans (Floyd J. Re'ed, New Orleans, of counsel), for defendant-appellant.
    Helm, Simon & Gordy, New Iberia, for plaintiff-appellee.
   McCALEB, Justice.

Mrs. Jennie Hobbs Barbour brought this suit to dissolve, for failure of consideration, the transfer of 249 shares of the corporate stock of Oaklawn Manor to her grandson, Clyde A. Barbour III, an emancipated minor. The facts and circumstances which give rise to the controversy are not seriously disputed and we find them to be as follows:

Plaintiff, a widow 76 years of age, has made her home on the antebellum estate in St. Mary Parish, known as Oaklawn Man- or, for some ■27 years, where she reared, supported , and cared for defendant, until the latter part of 1952. The estate, which is and has been operated as a tourist attraction, was transferred in 1926 to a non-trading corporation organized pursuant to Act 254 of 1914. This corporation issued 250 shares of stock and, in 1950, plaintiff, who was its president, owned 249 of the outstanding shares and defendant, the Secretary-Treasurer, owned the other.

Over a period of years, the grounds and buildings of Oaklawn Manor had become run down and were in dire need of repairs. To rehabilitate the property, the corporation borrowed, in December of 1950, the sum of $15,000, payment of which was secured by a mortgage upon the estate. This loan was payable in quarterly installments of $375, commencing April 1, 1951.

On January 19, 1951, plaintiff transferred to defendant by notarial act her entire stock interest in Oaklawn Manor Corporation, evidenced by two certificates, one for 240 shares and the other for nine shares, for the stated consideration of the assumption by defendant of the $15,000 mortgage bearing on the estate. Contemporaneously, the parties orally agreed that defendant would care for and support his grandmother for the rest of her life.

On November 19, 1952, the original agreement was modified so as to vest in plaintiff the usufruct of the stock she had transferred to defendant. In this agreement, which was also in authentic form, defendant’s oral obligation to support and care for plaintiff for the rest of her life was specifically confirmed, it being declared that defendant had complied with this obligation since the transfer of the stock.

From the time of the transfer of the stock to the defendant until the latter part of 1952, when plaintiff caused defendant to be ejected from the property, the corporation received some $31,000 in cash in which was included practically all of the proceeds of the $15,000 mortgage loan. During that period, defendant used these funds for making the quarterly payments falling due on the mortgage note and also withdrew much of the remaining funds for various other purposes. As a result, the corporation’s bank balance was depleted to such an extent that by the end of 1952 there was only ten cents left in its account and yet no appreciable repairs had been made on the premises.

It is the contention of plaintiff that defendant assumed personal responsibility for the payment of the mortgage and that his payment of the installments with the corporate funds was in violation of his obligation.

The defendant, on the other hand, maintains that, whereas he was personally responsible for the payment of the mortgage, plaintiff knew at the time she made the contract that he had no money of his own and that she could not have possibly expected that he would pay the installments coming due except out of the corporate funds. He further says that there can be no doubt that he has performed his promise to support his grandmother, as she admitted that he had complied with this obligation in the agreement dated November 19, 1952, wherein he conveyed to her the usufruct of the stock.

After a hearing in the district court there was judgment for plaintiff as prayed for. Defendant has appealed and, in this court, his counsel assign as ground for reversal the following errors attributable to the district judge:

(a) In holding that defendant violated his agreement to assume the mortgage by using corporate funds for payment of the quarterly installments ;
(b) In ruling that defendant had not discharged his obligation to care for plaintiff, in spite of her admission in the agreement of November 19th 1952 that this obligation had been previously met;
(c) In ruling in favor of plaintiff notwithstanding her failure to discharge the burden of proof resting upon her, and
(d) In refusing a new trial.

After considering the agreement and the evidence submitted by the parties, we are fully satisfied of the correctness of the judgment of the district court, which is fortified by a well-reasoned opinion of the judge.

To begin with, we think that the contract clearly imposed on the defendant the obligation of paying the mortgage with his own funds and not with those of the corporation. The only consideration (other than defendant’s promise of support) flowing to plaintiff under the contract was defendant’s assumption of the corporation’s obligation on the mortgage, which meant that he was to pay this indebtedness as it matured out of his personal funds for and on behalf and in the place and stead of the corporation. If the corporate funds were used for this purpose, it, and not the defendant, was discharging the obligation which he personally assumed and his assumption would have ultimately amounted to naught. As a matter of fact, the record shows that defendant did not pay the installments on the mortgage with corporate funds but, rather, that the Corporation itself paid them by checks drawn on its bank by defendant acting in his official capacity as Secretary-Treasurer. The circumstance that defendant owned all of the stock in the corporation does not change the status' of the payments made by it forasmuch as it is a legal entity separate and apart from defendant. Neal v. Daniels, 217 La. 679, 47 So.2d 44. Accordingly, there has been a complete failure on defendant’s part to comply with his obligation.

And defendant cannot escape the consequences of his breach by asserting that his grandmother expected that he would use the corporate funds to discharge his obligation because she was well aware that he was penniless and could not .obtain funds from any other source. Liability for nonperformance of contractual obligations is not to be gauged “by the means or ability of the party to fulfill his agreement, but by the nature of the thing which forms the object . of it”. Article 1891, Civil Code. Poverty or lack of means with which to perform a contract is not a legal excuse. Christine v. Chaney, 5 La.Ann. 219 and Forsman v. Mace, 111 La. 28, 35 So. 372.

Moreover, were we to concede the validity of defendant’s contention that plaintiff did not expect him to personally perform the obligations imposed by the contract, the result would be the same— for if it was not the intention of the parties that defendant was to pay the corporate obligation, there was no consideration for the transfer by plaintiff of her stock. “An obligation without a cause, or with a false or unlawful cause, can have no effect.” Article 1893, Civil Code.

The evidence also makes it manifest that defendant did not comply with his promise to support his grandmother and, therefore, that consideration, which was sufficient ■ to sustain the agreement, likewise ' failed. Indeed, defendant readily admitted on the witness stand that he did not at any time personally contribute towards his grandmother’s support, maintenance and welfare.

Defense counsel, pointing to the agreement of November 19, 1952 wherein the parties declare that defendant had cared for plaintiff since the date of the transfer of the stock, assert that this acknowledgment of support by plaintiff is not subject to contradiction by affirmative evidence to the contrary. However, we think it plain that defendant is in no position to rely on that statement in view of his voluntary judicial confession that he was unable to and did not support plaintiff at any time. This admission of defendant, which is full proof against him, Civil Code, Article 2291, precludes his dependence on the contractual statement and also furnishes a complete answer to the complaint of his counsel that plaintiff ,has failed to discharge the burden of proof resting upon her.

Finally, counsel say that the trial judge should have granted a new trial for the reason that, notwithstanding the numerous affirmative allegations of fact contained in the answer ' and reconventional demand of ■ defendant, his' former attorneys, who handled his case in the trial court, made no attempt to adduce evidence in support thereof.

It is difficult for us to perceive how or why the failure of counsel to offer testimony, to, sustain allegations made in a pleading furnishes any basis for a new trial of a cáse in the absence of a showing that evidence was available and that the attorneys deliberately of unjustifiably neglected to make use of it. It appears that defendant, was represented " in the trial court by able counsel, all reputable members of the bar, and wé presume that the reason why they did not offer proof in support of the allegations of defendant’s answer was due to the fact that there was no evidence available.

The judgment appealed from is affirmed.

SIMON, J., recused.

      . The agreement to support plaintiff was, of course, a consideration but that consideration failed as we hereinafter demonstrate.


author:
MOISE, Justice.
      McCALEB, Justice

text:
    228 La. 832
    Valeria Bertha COTTON v. John J. WASHBURN.
    No. 42064.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dec. 12, 1955.
    Love & Rigby, Shreveport, for defendant-appellant.
    Ferdinand A. Cashio, Shreveport, for plaintiff-appellee.
   MOISE, Justice.

Defendant, John J. Washburn, appeals from a judgment decreeing a partition by licitation.

The factual design is different from any previous adjudications made by this Court. Therefore, we must look at the influences which have surrounded both litigants and then sound their hearts by the plummets which we apply to our own.

The parties herein were engaged to be married, and on June 6, 1952 defendant bought the property herein involved, which is situated in Oak Grove Subdivision; Shreveport, Louisiana. By authentic act the property was placed in the names of plaintiff and defendant as co-owners, both parties contemplating such to be their home. They.were married on July 15, 1952, within five or six weeks after this act of sale was passed. Neither of them signed the authentic act (the vendors did), and they moved in the premises and occupied it as. their home. This constituted an acceptance of the property.

Plaintiff and defendant remained in the premises until the defendant left the premises on April 11, 1953. Plaintiff obtained a divorce from the defendant on statutory grounds on March 10, 1954, and, thereafter, filed this suit for a partition.

• In answer, the defendant contends that since the property was purchased before his marriage to plaintiff and was admittedly paid for with his separate funds, the partition should be denied and the deed reformed. Alternatively, he prays for a judgment in reconvention against the plaintiff, in the sum of $5,425 (one-half of the amount paid), and recognition as the owner of the other half interest in the property — the result being that he would receive when we include his interest and the cash demanded, the entire payment of the purchase price.

Defendant then attempts to show by parole evidence that his intentions were to sell the property to a third party after'his marriage and then buy it back so as to make it a part of the community. He had the idea that his separate estate would have a claim against the community at his death for the advance of the purchase price. This contention is merely a brutum fulman,’ because these intentions were never carried out. Even if his conclusion was correct as to the law, it could not have an effect here.

Vigorous objection is made that parole proof cannot be offered to alter or change the authentic act.

Under Article 1740 of the LSA-Civil Code, every donation made in favor of marriage falls if the marriage does not take place. The provisions of Article 1897 of the Revised Civil Code are to the same effect. These articles cannot be applied in this instance, because the marriage was consummated. It follows as á corollary that if the marriage does take place,. the donation must stand.

It is jrrged by the defendant that there was not an acceptance of the donation. It is true that Article 1540 of the LSA-Civil Code requires that there must be an acceptance of the donation of an immovable. However, we are not limited and restricted to this one Article of the Code. We must give full effect to all Articles of the Code directly bearing on this subject.

Article 1541 of the LSA-Civil Code provides :

’■“* * * if the donation has been executed, that is, if the donee has been put by the donor into corporeal possession of the effects given, the donation, though not accepted in express terms, has full effect.”

Since the wife moved into the house, it constituted an act of .corporeal possession. This is manifest from the record that the wife was in the home when the husband left the premises on April 11, 1953.

The next contention is that a donation must be made by an authentic act. An authentic act is full proof of itself. An authentic act must be passed before a Notary and two witnesses. In the instant case, the authentic act shows that one-half of the property was for plaintiff and the other half was for defendant. We have been presented with no antecedent contract nor proof of mutual error of the parties in entering into the Act of Sale. Poor v. Hemenway, 221 La. 770, 60 So.2d 310; Standard Oil Co. of Louisiana v. Futral, 204 La. 215, 15 So.2d 65; Magee v. Booty, La.App., 47 So.2d 379.

The Act of Sale declares that the property was purchased by plaintiff, a femme sole, and John J. Washburn, a single man; that the consideration was cash.

We believe that the circumstances sur rounding this case and the application of the law warrants the affirmation of the judgment of the district court.

Judgment affirmed.

. -McCALEB, J., Concurs with written reasons.

McCALEB, Justice

(concurring).

Since the defendant admits in his testimony that, at the time he and plaintiff purchased the property herein, he intended to give her title to one-half and that it was his desire to make it community property, it is clear that this was a donation in contemplation of marriage. In view of this, defendant’s claim for reformation of the deed is without basis and his alternative demand for recovery of one-half of the funds supplied by him for the purchase of the property is not sustainable. Article 2291, Civil Code.

I therefore concur in the decree.


text:
    228 La. 837
    Roland DOBSON v. STANDARD ACCIDENT INSURANCE COMPANY.
    No. 42322.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dec. 12, 1955.

      Gerard F. Thomas, Jr., Natchitoches, for plaintiff-appellee and relator.
    Cook, Clark, Egan, Yancey & King, Shreveport, for defendant-respondent.
   McCALEB, Justice.

This is a suit for workmen’s compensation arising out of an accident occurring on September 4, 1953, when plaintiff cut this foot with an axe while assisting certain laborers in removing a fence surrounding the residence of his employer. Plaintiff was totally disabled for 16 weeks and incurred medical expenses in the sum of $342.88. He seeks recovery of these expenses and compensation at the rate of $30 per week for the period of his disability.

At the time of the accident, plaintiff was employed as a truck driver, bookkeeper and general handyman by his father, E. P. Dob-son, who is engaged in the wholesale oil and gasoline distribution business in Chestnut, Louisiana. This enterprise is admittedly hazardous within the meaning of the Workmen’s Compensation Law, R.S. 23:1035, and the defendant insurance carrier issued to Mr. Dobson its policy covering his legal liability for workmen’s compensation to all of his employees.

The insurer, sole defendant in this suit, does not deny the accident, ensuing injuries, the expense incurred and that plaintiff was an employee covered by the provisions of the Workmen’s Compensation Statute. It resists liability on the ground that, since plaintiff was injured while engaged in the demolition of a fence around his father’s private residence, the accident did not arise out of and in the course of his employer’s trade, business or occupation. Alternatively, it asserts that, even if plaintiff’s father-employer were responsible for workmen’s compensation, the claim herein is not covered by its policy. And, again alternatively, it contends that no compensation is due because plaintiff collected his wages from his father-employer during the period of his disability and that the amounts received were gratuities which are to be regarded as compensation payments under the jurisprudence.

In the district court, there was judgment for plaintiff as prayed for but on appeal the decision was reversed, the Court of Appeal ruling that the accident did not arise out of plaintiff’s employment in the wholesale oil and gasoline distribution business. See La.App., 78 So.2d 258. We granted certiorari believing this holding to be inconsistent with the decision of this court in Kern v. Southport Mill, 174 La. 432, 141 So. 19, 20.

In order to entitle an employee to workmen’s compensation, it is essential, under R.S. 23:1035, that the injuries be sustained while he is “performing services arising out of and incidental to his employment in the course of his employer’s trade, business, or occupation * * * The accident in the instant case was in the course of plaintiff’s employment as it happened during his usual hours of work. It remains, then, only to ascertain whether it arose out of the employment.

In Kern v. Southport Mill, supra, plaintiff, who was employed by the defendant corporation as a pipe fitter, was directed by his superior during the course of his employment to go to the residence of one of the mill’s officers to perform services for the latter. After completion of these tasks and, while returning to the mill, Kern was struck and injured by an automobile. In his- suit for recovery of compensation, the question for decision, as here, was whether Kern" was performing services arising out of his employment at the time of the accident; The answer was in the affirmative, - the court reasoning that:

“Services ‘arise out of’ and are ‘incidental to’ an employment, whenever the employment calls for just such services. And whenever the employer calls upon the employee to render any particular service, he, at least (that is to say, the employer himself), is in no position any longer to deny that the services thus requested arise out of and are incidental to the employment. Otherwise, by zvhat right has the employee been called upon to perform them ?
“Accordingly, the- question whether or not the services being'rendered by the employee, at the time when he is injured, arise out of and are incidental to his employment, cannot be raised when the employee has been given special instructions to perform the particular services in which he was engaged at the time he was injured, but only when the employee has undertaken such service on his own initiative as being actually or presumably within the scope of his duties.” (Emphasis ours.)

It is manifest that the above-stated principle controls the case at bar and it follows that, had this suit been brought against plaintiff’s father-employer, he would not have been in a position to assert that, the services rendered by his son at his request were disconnected from and not incidental to the employment.

Counsel for the insurance company would have us make a distinction between this and the Kern case on the basis of plaintiff’s employment by his father, it being contended that the filial relationship affords a predicate for denying responsibility. Cases from other States are cited 'to support the proposition.

A reading of these authorities will reveal that they are in direct conflict with the views expressed by this Court in the Kern case. Furthermore, we find nothing in our compensation law which would authorize us in discriminating against plaintiff in this case because his employer happened to be his father.

Defendant urges that, even though plaintiff’s father-employer is liable for compensation, it nonetheless is, not responsible because the coverage of its policy extends only to the activities of the assured in the wholesale oil and gasoline business.

This contention, which was also upheld by the Court of Appeal, is not well founded. The policy provides that the insurer

“Does Hereby Agree with this Employer, * * * as respects personal injuries sustained by employees, * * * as follows:
‘‘Compensation * * * One (a). To Pay Promptly to any person entitled thereto, under the Workmen’s Compensation Law and in the manner therein provided, the entire amount of any sum due, and all installments thereof as they become due,
“(1) To such person because of the obligation for compensation for any such injury imposed upon or accepted by this Employer under such of certain statutes, as may be applicable thereto, * * * each of which statutes is herein referred to .as the Workmen’s Compensation Law, * * * ”.

The foregoing clause fixes the liability of defendant to plaintiff in clear and explicit language, providing that the insurer contracts to pay to the injured employee the compensation due such employee “because of the obligation for compensation for any such injury imposed upon * * * ” the employer (assured) by the Workmen’s Compensation Law.

Finally, defendant contends that, since the record shows that plaintiff’s father-employer continued his wages during the period of his disability, it is not liable for compensation because it is well established that, where the employer pays to an injured employee wages which are in the nature of a gratuity or beneficence, such wages will be considered as payments of compensation.

Plaintiff and his father readily admitted that the former received his salary during the sixteen weeks he was disabled but they denied that it was paid as wages. They testified that the money was advanced as a loan by the father to plaintiff, who was without funds to support his family during the period that he was incapacitated.

By his award of compensation, the trial judge was evidently satisfied with the explanation given by plaintiff and his father. A review 'of the record does not disclose error in his resolution on this question of fact.

The judgment of the Court of Appeal is set aside and annulled and it' is now ordered that the judgment of the District Court be affirmed and reinstated. Defendant is to pay all costs.

      . The Court of Appeal in a Per Curiam opinion on an application for a rehearing attemped, unsuccessfully we think, to differentiate the Kern case from this one and also intimated that that decision might be in conflict with our recent holding in Story v. Globe Indemnity Co., 223 La. 689, 66 So.2d 611. Suffice it to say that the facts of this and the Kern case bear little resemblance to those appearing in the Story case, where we expressed doubt that the deceased was ever hired to perform services for the employer in his regular business. It was not a case, as here, where the employee was ordered during working hours to do ‘ a task beyond his normal duties in his employer's business.

      . Elliott v. Elliott Bros., 165 Tenn. 23, 52 S.W.2d 144 and Thompson v. George E. Thompson & Co., 189 Minn. 547, 270 N. W. 594.

      . The Court of Appeal did not consider this phase of the case in view of its ■ ruling that the injury was not com-pensable.


author: AYRES, Judge.

text:
    Venetta JOHNSON, Plaintiff-Appellant, v. W. W. MONTGOMERY, Sr., Defendant-Appellee.
    No. 8348.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.
    James Sharp, Jr., Monroe, for appellant.
    Berry & Lee, Winnsboro, for appellee.
   AYRES, Judge.

. Appellant did not appear either in person or through counsel when this case was called for. argument. Having failed to appear or to file a brief in support of her case, it is therefore presumed that the appeal has been abandoned, and it will accordingly be dismissed. Falcon v. Falcon, 224 La. 938, 71 So.2d 334; Peace v. Love, 223 La. 772, 66 So.2d 803, and authorities therein cited; Normand v. Avoyelles Parish School Board, La.App., 11 So.2d 713.

Therefore, the appeal is dismissed at appellant’s costs.

Appeal dismissed.


author: HARDY, Judge.

text:
    ASSOCIATES INVESTMENT COMPANY, Plaintiff-Appellant, v. J. D. ALEWINE et al., Defendants-Appellees.
    No. 8435.
    Court of Appeal of Louisiana. Second Circuit.
    Nov. 29, 1955.
    Hayes, Harkey & Smith, Monroe, for appellant.
    Kent Breard, McHenry, Lamkin, Snell-ings & Breard, Monroe, for appellees.
   HARDY, Judge.

Plaintiff, alleging itself to be the holder and owner, for value and before maturity, under the laws of the State of Texas, of a note in the principal sum of $4,247.75, an installment investment certificate for an identical amount and a chattel mortgage, all of said instruments being executed by defendants, instituted this suit praying for judgment in the principal sum of $1,702.75,. ■with interest, attorney’s fees, etc., and for recognition and enforcement of the chattel mortgage. To this action defendants interposed an exception of no cause and no right of action which, after hearing, was sustained and judgment rendered dismissing plaintiff’s suit, from which judgment plaintiff brings this appeal.

The pertinent allegations of plaintiff’s petition, which must be accepted as established for the purpose of considering the exception, in addition to the basis of the suit as above set forth, discloses that .after default by defendants in payment of the installment investment certificate which thereupon became due and exigible, plaintiff seized and sold at private sale two motor vehicles described in the chattel mortgage, the proceeds of which sale were credited against the principal balance of defendant’s obligation; that the plaintiff is entitled to have recognized and rendered ex-ecutory its chattel mortgage with respect to the remaining property of defendants, particularly described in said instrument.

The chattel mortgage in question, which was executed in the State of Texas, contained a description of two motor vehicles .and a number of articles of household furnishings, all of which property was pledged as security for defendant’s indebtedness. As above stated, plaintiff has heretofore caused the motor vehicles described in the mortgage to be seized and .sold under the laws of the State of Texas and now seeks by this proceeding to enforce its rights upon the remaining property against the defendants who are now alleged to be residents of the Parish of Ouachita, State of Louisiana.

The basis upon which defendant’s exception is urged is clearly set forth in counsel’s brief. It is contended that the Louisiana •statute, LSA-R.S. 13:4106-13:4107, ordinarily identified as the Deficiency Judgment Act, provides for the complete extinguishment and discharge of a mortgagor's debt in those instances where the mortgagee proceeds to seize and sell, without appraisement, the property covered by the chattel mortgage given as security for the debt. It is further urged that this statute is a declaration of public policy and that contracts, although enforceable under the law of the place where executed, cannot be enforced in this state in violation of the statutory restriction.

We observe that there is nothing in ■plaintiff’s petition which indicates that the motor vehicles constituting a portion of the security pledged in the chattel mortgage were sold without appraisement. The only allegation in connection with this sale recites the fact that

“ * * * petitioner seized and sold at private sale the two motor vehicles * * * »

We think this in itself, in the absence of the establishment as a fact of the sale of the vehicles without appraisement, would be sufficient to destroy the validity of defendant’s exception. However, inasmuch as counsel for all parties involved have chosen to interpret the sale as having been consummated without appraisement, we prefer not to predicate our conclusion upon this ground.

We are completely in accord with the position taken by learned counsel for defendants that the question here presented is governed by the provisions of the Deficiency Judgment Act. However, we think counsel is in error in relying upon Section 4106 which he quoted in his brief as follows :

“4106. Deficiency judgment prohibited if sale without appraisement
“In any case where any mortgagee or other creditor takes advantage of the waiver of appraisement of the debtor and provokes a judicial sale, without the benefit of appraisement, of the encumbered property, whether real or personal, or of both characters, and the proceeds of such sale are insufficient to satisfy the debt for which the property is sold, the debt nevertheless shall stand fully satisfied and discharged, and such mortgagee or other creditor shall not thereafter have the right to proceed against the debtor or any other of his property for such deficiency, in any manner whatsoever.”

The above is an accurate quotation of the enumerated section as originally adopted by Act 28 of 1934 and incorporated in the LSA-Revised Statutes of 1950. But this section of the Revised Statutes was amended by Act 20 of 1952 and now reads as quoted below, the changes from the original provision being outlined by emphasis which we have supplied:

“4106. Deficiency judgment prohibited if sale without appraisement; preservation of rights under other mortgage or pledge
“In any case where any mortgagee of other creditor takes advantage of the waiver of appraisement of the debtor and provokes a judicial sale, without the benefit of appraisement, of the encumbered property, whether real or personal, or of both characters, and the proceeds of such sale are insufficient to satisfy the debt for which the property is sold, the debt nevertheless' shall stand fully satisfied and discharged, insofar as said debt constitutes a personal obligation against the debtor or debtors, and such mortgagee or other creditor shall not thereafter have the right to proceed against the debtor or any other of his property for such deficiency, in any manner whatsoever, provided, however, that in cases in which .such debt or other obligation is secured by the mortgage or pledge of other property either real or personal (in addition to that foreclosed against), then such mortgagee or creditor shall ■ lose no rights under such mortgage or pledge by virtue of a sale without appraisal as set forth above, and suck mortgagor or creditor may, concurrently with such foreclosure proceeding, or thereafter, proceed to foreclosure' in such mortgage or pledge resting on other property to the same extent as if such sale, without appraisement, had' not taken place except that there shall be no right to a deficiency judgment• against said debtor.”

The above amendment was effective prior to the date of the execution of the note and chattel mortgage involved in the instant case.

We think it is obvious that the-above section, as amended, specifically grants a creditor the right to execution upon all properties covered by a chattel mortgage, regardless of whether a partial execution had resulted in seizure and sale of a portion of the mortgaged property-without appraisement. It follows, therefore, that plaintiff’s petition adequately sets forth a cause and right of action and clearly it is entitled to trial on the merits-Defendant’s rights to object and to present their objections on other points are, of course, preserved to them.

For the reasons assigned the judgment appealed from is reversed and set aside, the exception of no cause and no right of action is overruled and the case is remanded to the Honorable .the Fourth Judicial District Court in and for Ouachita Parish,, Louisiana, for further proceedings. Costs of this appeal are taxed against defendants,, and all other costs shall await final determination hereof.