author: PIAIVUTER, Justice.

text:
    212 La. 1022
    STATE v. THEARD.
    No. 38649.
    Supreme Court of Louisiana.
    Jan. 12, 1948.
    Rehearing Denied Feb. 16, 1948.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., and Herve Raci-vitch, Dist. Atty., and Beuker F. Amann, and Edgar Corey, Asst. Dist. Attys., all of New Orleans, for appellant.
    Edward Alexander Parsons and A. G„ Williams, both of New Orleans, for appel-lee.
   PIAIVUTER, Justice.

Under a bill of information filed September 1, 1936, in cause No. 85,824 on the docket of Section “D" of the Criminal District Court of Orleans Parish, the defendant Delvaille H. Theard was charged with embezzling $45,575 from the Phoenix Building; and- Homestead Association of New Orleans. No further step was taken in the prosecution until more than ten years later wlien, on March 11, 1947, he was arraigned and pleaded not guilty.

Several days thereafter (March 25, 1947). the defendant, through his counsel, retracted his plea of not guilty and pleaded the prescription of three years under the provisions of Articles 8 and 9 of the Louisiana Code of Criminal Procedure. The plea of ■prescription was sustained, the prosecution was ordered dismissed, and, from the ruling, the State' of Louisiana appealed.

As originally enacted, and insofar as pertinent here, Article 8 of our Code of Criminal Procedure provided:

“In felony cases when six years elapse from the date of finding an indictment, or filing an information, and in all other cases when two years elapse from the date of finding an indictment, or filing an information or affidavit, it shall be the duty of the district attorney to enter a nolle prosequi if the accused has not 'been tried.
“Nothing in this Article shall apply or ■extend to an accused person who has ab; •sconded, or who is a fugitive from justice, or who has escaped trial through dilatory pleas, or continuances obtained by him or in his behalf.”

And Article 9 thereof recited: “Whenever it shall have been established to the satisfaction of'any court in which any criminal prosecution shall be pending that the prescriptive' periods as herein provided have elapsed since the last date upon which ■any steps shall have been taken by the state in such prosecution, and that the district ■attorney has not enter'ed his nolle prosequi, the court shall order the dismissal of said ■prosecution, and the same shall not thereafter be revived; provided, that the prescription established in Art. 8 hereof shall ■be interrupted by the absence of the defendant from the jurisdiction of said court without the written consent of the court first obtained and entered upon the minutes, or ■filed in the record of the cause; provided, further, that the burden of proving the accruing of the prescription herein established shall in all cases rest upon the person alleging the same.”

Article 9 has nevfer been amended. Article 8, however' was amended and re-enacted.in two separate acts of the Legislature of 1942, numbered respectively ,147 and 323. Under Act No. 323 o'f 1942, which counsel for both'the State and the accused concede is applicable to this cause, the above quoted original provisions of Article 8 were changed so as to read: “ ‘In felony cases when three years elapse from the date of finding an indictment or filing an information, and in all other cases when two years elapse from the date of finding an indictment, or filing an information,- or affidavit, it shall be the mandatory duty of the district attorney to enter a nolle prosequi, if the accused has not been tried, and if the district attorney fail or neglect to do so, the Court may on motion of the defendant or his attorney cause such nolle prosequi entered the same as if entered by the district attorney. Provided that if at any time during- said three or two year periods, respectively, the offender is a fugitive from justice, such prescriptive period shall be suspended and shall recommence to run only from the date said offender is captured or surrenders.’ ”

In opposing defendant’s plea herein, predicated on the provisions of said Article 8, as amended by Act No. 323 of 1942, and on said Article 9, the State contends that the running of the three year prescription was interrupted by an adjudication of defendant’s insanity in another criminal prosecution and that the arraignment herein was timely. In. this connection . it shows, and the record before us reveals, that on August 11, 1936, (several days prior to the filing of the information in the instant proceeding) the defendant was> charged under another bill of information, in cause No. 85,5,17 on the docket of-Section “A” of the Orleans Parish Criminal District Court, with the embezzlement of $40,000 from a Mrs. Geor-gine Denis Merrill. In that cáuse on December 13, 1937, he filed an application for the appointment of a lunacy commission, and on Aprií 20, 1938, he was held to be presently insane. ' The impediment continued until May 11, 1944, at which time he was adjudged (in said Section “A”) to be presently sane,' capable of understanding the proceedings.against him, and able to assist, in his defense. Thereafter, numerous other steps were taken in the course of the -prosecution in said cause No. 85,517 (Section “A”), including.a jury trial which resulted on February 25, 1947, in his acquittal of the charge.

It is the State’s contention that the insanity proceedings (initiated almost fifteen and one-half months after the filing of the instant information), together with the adjudication thereon, effected an interruption (not a suspension) of the accruing prescription; and that since the three year period did not commence to run anew until the accused was judicially declared presently sane on May 11, 1944, the arraignment herein on March 11, 1947, was timely and legal.

The defendant’s position, on the other hand, is that (1) no issue of insanity was ever created in this prosecution, and hence it was encumbent on the district attorney to call the accused for trial within three years from the date of the information’s- filing or before September 1,. 1939; and (2) if the insanity proceedings in cause No. 85,517 (Section “A”) are' applicable to this prosecution they provided only a suspension of the prescription, not an interruption.

Clearly the first ground urged by defense counsel is without merit. An accused against whom there is in force and effect a judgment declaring him insane cannot be brought to trial. State v. Theard, 203 La. 1026, 14 So.2d 824. And, as was correctly said by the trial judge, “If the district attorney- had moved to try Theard on the charge pending in this division [Section “D”] during his period of insanity, undoubtedly, Theard’s counsel would have pleaded his insanity as a bar to his trial. The district attorney cannot be required to do what is unnecessary and illogical.” (Brackets ours.)

This leaves for consideration the question of whether the accused’s insanity proceedings effected a suspension (a destruction of prescription only during the period of insanity) or an interruption (a destruction of the prescription that had previously accrued, as well as prescription during the period of insanity). If only a suspension resulted, as defense counsel contends, the computation' of the three years must include the time elapsing between the filing of the information and defendant’s applying for the lunacy commission (one year, three months and thirteen days) ; and when it is added tt> the time which followed the decree of sanity (May 11, 1944) necessarily the conclusion is that the prosecution became barred by prescription in the early part ot the year 1946. But if the insanity proceedings resulted in an interruption, as. the State insists occurred, the .computation, would embrace only the time elapsing from the date of the sanity decree to that of the-arraignment which was less than three-years.

To determine the question thus posed the-court, as the trial judge appropriately remarked, “must resort to logic and a sense-of justice;” for we have found no Louisiana statute and no- reported opinions, either in our jurisprudence or that of other states, to offer guidance.

In connection with the issue defense-counsel, it is true, have cited and quoted from cases and text writers to the effect that under the common law once prescription has begun to run nothing can stop it, not even the insanity of the defendant. But when read with their context the cited authorities show clearly that the mentioned doctrine was being considered with reference to prescription as it related to the-timely filing of -an indictment or an information following the commission of the crime, and not to the bringing of an accused to trial after his .being charged. They could not be applicable here, moreover, for this court in the former case of State v. Theard, supra, definitely held that insanity does stop the tolling of the prescription that runs following the filing of the information or indictment.

Counsel for the State, on the other hand, call attention to our conclusion in-cause No. 38,320 on the docket of this court wherein we refused on August '12, 1946, to grant remedial writs in the prosecution against this defendant in Section “A” to pass upon the same question presently before us. But, although it might be pursuasive here, such conclusion does not carry the effect as a precedent as it would had that case been decided after the granting of a writ or on an appeal. State v. Ardoin, 197 La. 877, 2 So.2d 633.

Resorting now to logic and our sense of justice to determine the instant is•sue, it is to be noticed that under the civil law of our state whenever the course of prescription is hindered by minority or insanity — causes beyond human design or •control — the prescription is not interrupted and made to start anew at a later date; it it merely suspended or held up while the disability exists, and in computing the term •of prescription there must be considered the time antedating the period of minority •or insanity and that which follows. Where, however, the cessation results from some ‘human activity, it is then treated usually as .an interruption. This doctrine unquestionably is just and fair, and, although we realize that the rules of civil law are not controlling in criminal prosecutions, there appears good reason why it should and will be applied in this cause. If this defendant had stopped the running of prescription through some intentional and deliberate act on his part we, unhesitatingly, would declare it an interruption. But since the cessation here occurred by reason of an unfortunate circumstance over which he had no •control, certainly it would be most unfair to impose the penalty of denying him the benefit of the almost sixteen months of prescription that accrued prior to his affliction. And this is especially true when it is remembered, as said in State v. Theard [203 La. 1026, 14 So.2d 824, 825], supra, that •the purpose of Article 8, as amended, of the 'Code of Criminal Procedure “is to enforce •the right of an accused to a speedy trial and to prevent the oppression of citizens by suspending criminal prosecutions over them for an indefinite time as well as to prevent •delays in the administration of justice by imposing on judicial tribunals an obligation of proceeding with reasonable dispatch in the trial of criminal accusations.”

For the reasons assigned the judgment appealed from is affirmed.

McCALEB, J., concurs in the decree.


source: Caselaw Access Project

author: FOURNET, Justice.

license: Public Domain

text:
    212 La. 1032
    WOULFE et al. v. MORRISON, Mayor, et al.
    No. 38749.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Rehearing Denied Feb. 16, 1948.

      Maurice R. Woulfe and Richard A. Dowling, both of New Orleans, for petitioners and appellants.
    James C. Henriques, Baldwin, Haspel & Malony and Conrad Meyer, III, all of New Orleans, amici curise.
    Henry G. McCall, City Atty., Henry B. Curtis and James O’Niell, Asst. City Attys., all of New Orleans, for defendants and appellees.
   FOURNET, Justice.

The plaintiffs, twenty-five resident property owners and taxpayers of the City of New Orleans, are appealing from a judgment dismissing their suit against the Mayor and the Commission Council of the City of New Orleans and instituted by them for the purpose of having declared null the election held on April IS, 1947, in pursuance to Ordinance No. 17549, adopted qn February 28, 1947, authorizing the issuance of bonds aggregating $23,500,000 and being (Purpose A) $12,000,000 for the payment of the city’s portion of the cost of eliminating grade-crossings in the city by the construction of over and underpasses; (Purpose B) $10,500,000 for surfacing, resurfacing, blacktopping, repairing, and improving the streets of the city; and (Purpose C) $1,000,000 for the acquisition of the necessary lands and improvements for the civic center proposed for the city; and for the further purpose of enjoining the issuance of the bonds or the execution of any contract relative to or for the construction of these proposed improvements.

Because of the public importance of the matter the defendants, after filing an answer within the delays allowed by law,' obtained an order fixing the trial of the cáse for July 9, 1947. On that day the plaintiffs objected to going to trial, filing a motion for a continuance wherein they averred that, being an ordinary suit, the case could not be fixed without their consent; they also asked that the trial be deferred for a period of three months in order that they might have sufficient time to fully prepare the proof to support. the allegations of their petition.

In overruling this motion, the trial judge declared the nature and importance of the case required an early trial and disposition thereof, but he did order the case continued until July 16 to afford the petitioners, sufficient .time within which to apply for writs to the Supreme Court to determine whether he had abused his discretion in refusing the same. This court refused the writ when it was applied for, assigning as its reason the lack of a showing on the part of the applicants that the judge had abused his discretion.

On the day the trial of the case was resumed, the petitioners filed another written motion for a continuance until the regular term of court in October, suggesting that because the regular 'term of court had ended the day previous, July 15, at midnight, the court was without authority to try the .case during the vacation that began at midnight. This motion was also overruled and the case, after trial on the merits, was dismissed.

In this court the plaintiffs are contending that because of the provisions of Section 43 of Article VII of the constitution of 1921, and Section 1 of Rule 4 of the Rules of the ' Civil District Court, the latter declaring the court shall remain in continuous session during the period beginning October 1 of each calendar year and ending on July IS following, when the court shall adjourn for an annual vacation that commences on July 16 and ends on September 16 following, the judgment appealed from is null and void and the case must, therefore, be remanded for retrial. They cite as authority the case of Teacle v. Hughes, 146 La. 195, 83 So. 457, and the authorities therein cited.

Courts are those instrumentalities of government to which the public administration of justice is delegated. They are created by the people of the sovereignty and function solely to insure that the fundamental rights of life, liberty, and the peaceful possession of property guaranteed to each and every person under our form of government are protected and our civilized society preserved, so that we may live in the peace and happiness intended by our founding fathers. To that end our constitution declares that “All courts •shall be open, and every person for injury done Mm in his rights, lands, goods, person or reputation shall have adequate remedy by due process of law and justice administered without denial, partiality, or unreasonable delay.” Section 6 of Article I of the Constitution of 1921. (Italics ours.)

While under Section 43 of Article VII of the constitution it is made the mandatory duty of the Civil District Court of the Parish of Orleans to hold continuous sessions during nine and a half months of the year, there is no prohibition in this provision against the holding of court during the so-called vacation period. The provision is that the court “shall hold continuous sessions during nine and a half months of the year,” and when the public business demands it, the court not only has the right to try cases of importance to the public during the vacation period, but it is the court’s duty to do so. State v. Thompson, 121 La. 1051, 46 So. 1013; Lawrason v. Swartz, 132 La. 511, 61 So. 554; State v. Bradford, 164 La. 423, 114 So. 83. And in ■ adopting its rules, the court never intended to deviate from this policy of public service and expediency but intended, instead, that the rules should be used for the court’s own guidance in regulating the orderly procedure to be followed before it in the transaction of the public’s business.

The election, and the proposed bond issue it was to authorize, was called for only one purpose — to secure the necessary funds for the construction, expansion, and improvement of facilities vital to the city. Under our law a contest of such an election must be filed within 60 days after the election is held' and its contest should be tried as expeditiously as possible, without any unreasonable or unnecessary delays. Notwithstanding this, the plaintiffs, arguing both orally and in brief, stated they purposely filed this suit via ordinaria to avoid its summary or expeditious trial. The relief sought by them, however, is injunctive, and the fact that they did not proceed by rule is immaterial. The matter is controlled by the injunctive statute and this act specifically provides that any hearing under the act “may be had in chambers or at term time.” Section 5 of Act No. 29 of 1924. It. is such a procedure, therefore, that must, under Rule 4 of the Rules of the Civil District Court (relied on by the appellants), be tried during vacation under our existing laws.

Counsel strenuously argue, however, that they were unable to ascertain what certificates showing the assessment valuation of the voter’s property were-allegedly fraudulently withheld, making it impossible for them to adequately prepare for the trial of the case on the date set, because they were not allowed to look at the records at the City Hall until June 25, two days after the answer of the city was filed.

It seems to us, as it did to our learned brother below, that the plaintiffs when they filed their suit — two days before the prescriptive period had elapsed and 58 days after the election they are attacking was held — should have had at least some evidence to support their numerous allegations, among which is the allegation that some 35,000 people were deprived of their right to vote because the required certificates were not mailed to them by those interested in the favorable outcome of the election. Furthermore, although the case was not actually tried until July 16, some three months after the election and more than a month after the suit was filed (the actual trial consumed some three days), the record shows the plaintiffs offered no evidence that would indicate-fraud was practiced by the proponents of the bond issue in the issuance of these assessment certificates, as they alleged. Obviously, the only purpose the requested continuance could have served, other than to unnecessarily prolong the litigation and thereby unduly delay the sale of the bonds and the ultimate completion of the improvements for which the funds derived therefrom were intended, would have been to give the plaintiffs an opportunity to enter into an expedition for the discovery of evidence that would support the allegations of their petition and that they did not have when they filed their suit, a procedure that is not only not favored by the courts of this state, but one that would be in violation of the public policy with respect to the expeditious contest of bond issue elections.

The authorities cited by the appellants in support of their contention that they should have been granted a continuance are neither apposite nor controlling here and, therefore, no Useful purpose could be served in analyzing them.

It is' our opinion, therefore, that the trial judge correctly overruled the motion for a continuance.

The petition itself is somewhat lengthy and contains numerous statements and conclusions, many of them without facts upon which they are based being given and others based on facts not borne out by the records. As it is drawn it is confusing, but we think that all of its 29 allegations are either an attack on (1) the legality of the ordinance, (2) the legality, of the election, or (3) form a part of an alleged fraudulent scheme purportedly entered into by the proponents of the bond issue to secure its favorable passage. A simplified analysis of these allegations, which the court must dispose of, is as follows:

(A) The ordinance calling the election is illegal, null, and void in that (1) such an election is prohibited under the Constitution of 1921; (2) the ordinance was not approved by three-fourths of the members of the Board of Liquidation, City Debt, as required by the constitution; (3) the $12, 000,000 proposed under Purpose A is insufficient to cover the city’s share of constructing the over and underpasses needed to eliminate grade-crossings; and (4) the ordinance is so indefinite it not only fails to insure that the city and not the Public Belt Railroad will have the control and expenditure of the funds derived from the sale of the bonds but also to insure that these funds will actually be spent for the purposes intended and not for other purposes, such as the construction’ of a railroad passenger or terminal station.

(B) The election was illegal, null, and void in that (1) the use of voting machines in the conduct of such an election is not authorized by the Voting Machine Law and, in the alternative, if so authorized, then the law is unconstitutional; in any event, in addition to the fáilure to follow the provisions o'f the act in conducting the election, many other illegal practices were perpetrated which vitiate the same, viz.: (a) the list of commissioners selected to serve at the election was not submitted to the Commission Council and these commissioners were not appointed by the council within the 35-day period provided by law; (b) the voters were deprived of the secrecy of the ballot by the manner in which the voting machines were used; (c) the machines were so fixed in some precincts that they would not register a vote against the bond issue, (d) some of the commissioners serving in the special election were absent from the polls until they put in an appearance at closing time to certify and sign the poll sheets, and (e) the commissioners serving in the general election, being of the opinion that the commissioners selected to supervise the special' election were unauthorized,' refused ter allow such commissioners to serve in many instances until compelled to do so by intimidation and force on the part, of the city police.

(C) That the favorable vote secured was the result of a general scheme on the part of the Commission Council to confuse' and mislead the voters, the council, as a part of such scheme, (1) fraudulently withholding some 35,000 of the 160,000 assessment certificates prepared for mailing to the prospective voters, and, by means of an opinion rendered by the city attorney, led the voters to believe only those holding assessment certificates would be allowed to vote, contrary to the provisions of the ordinance permitting those not' possessing certificates to vote by making out an affidavit as to their assessment, with the result that many voters were deprived of their right to vote; and (2) ordering the election held at the same time a general election to select a Justice of the Supreme Court was being conducted, the same polling places being used but with different sets of commissioners to supervise the two elections.

The election in contest here was held under the authority of Act No. 4 of 1916, as amended, which act was adopted as an amendment to the Constitution of 1913 and was specifically maintained and preserved in the Constitution of 1921, the only difference being that the Constitution of 1921 amended Section 8 of the act. See Section 24 of Article XIV of the Constitution of 1921. Under Section 4 of this act the City of New Orleans is empowered— when authorized by a vote of a majority in number and amount of the property taxpayers qualified to vote at an election held ■after due notice has been published for 30 ■days in the official journal, pursuant to a call for that purpose in an ordinance adopted by two-thirds of the members of the Commis.sion Council and approved by three-fourths ■of the members of the Board of Liquidation, City Debt — to issite and negotiate its bonds. The only limitation placed on the city’s authority and power in this respect is to be found in Section 13 of the act, which declares that the total issue of bonds by the City of New Orleans for all purposes shall ’ never exceed 10% of the assessed valuation of the property in the city. But in computing the indebtedness of the city for 'this purpose, bonds issued under the special acts enumerated in Section 13 (Nos. 6 of 1899, 19 of 1906, and 179 of 1908) or those that might thereafter be issued for water, sewerage, and drainage purposes, for new public improvements, for the Public Belt Railroad, or for the acquisition or construction of any revenue producing public utility, as well as those paving certificates that ' are primarily chargeable against special assessments for street paving are not included.

■ The record shows that in adopting the ordinance calling this election the city fully complied with all of these requirements, including the approval of the ordinance by three-fourths of the members of the Board of Liquidation, City Debt, before the election was ordered, the allegations of the petition to the contrary notwithstanding, and it- also shows that the 10% limitation placed on the city’s -power to issue these bonds was not exceeded. Clearly, therefore, the contention of the plaintiffs that this election was unauthorized is without merit.

We think, as did the trial judge, that the further argument of counsel for plaintiffs that the bonds are illegal because the provisions of Section 8 of the act of 1916, as amended by - the Constitution of 1921, prohibit any further dedication of the -funds derived from the tax levies authorized in Acts No. 110 of 1890 and No. 6 of the Extra Session of 1899 (and referred to in the constitutional provision) after 1950, is also without merit. The fallacy of this argument is clearly demonstrated in the following excerpt from the able opinion of the trial judge:
“These bonds that were issued under Act No. 4 of 1916 are serial bonds, and the interest on said bonds and the principal of the bonds as they mature are payable out of one-half of the surplus of the 1% Debt Tax, which was originally levied by Act No. 110 of 1890, and kept in force by Act No. 6 of the Extra Session of 1899 and other constitutional provisions, up to and inclusive of the year 1950.
“The full faith and credit of the City of New Orleans are pledged to the payment of the principal and interest of these bonds, and if the one-half of the surplus of the 1% Debt Tax should not be sufficient to pay the interest and .principal of any of these bonds as they mature, then the City is required to levy additional taxes necessary to pay the principal and interest on said bonds.
“After the year 1950, when the Public Improvement Bonds issued under Act No. 6 of 1899 shall have been all retired and paid, the City of New Orleans is required to levy a sufficient tax upon all the taxable property of the City of New Orleans necessary to pay the principal and interest of all bonds outstanding, including all bonds that have been or may be issued under Act No. 4 of 1916. If the City of New Orleans should fail to levy said tax, then it becomes the duty of the Board of Liquidation, City Debt, to levy said tax.
“An examination of Section 14 of Act No. 4 of 1916 shows that the Board of Liquidation, City Debt, as now organized and created, with all the powers, duties and functions described by existing laws and by this amendment, shall be continued while bonds authorized by this amendment are outstanding and unpaid.
“The Court will examine Section 7 of Act No. 110 of 1890, which is also a part of the Constitution and which was a constitutional provision that was in force when Act No. 4 of 1916 was adopted by the people, you will find that this section provides that in case the City should fail to levy a tax sufficient to pay the interest and principal of said bonds, then Board of Liquidation, City Debt, ‘shall itself, by proper resolution, have power to levy said tax, and to collect the same; and, in said levy and collection, to use any and all the machinery, rights, powers and authority established by the State for the levy and collection of the State taxes.’
“In other words, Section 14 of Act No. 4 of 1916 vests in the Board of Liquidation, City Debt, all 'the powers, duties and functions prescribed by existing' laws,’ and as Act No. 110 of 1890 gave it the powers above enumerated, it has the same powers in relation to the levy and collection of taxes to pay the interest and principal of bonds issued under Act No. 4 of 1916 that it had under the provisions of -Act No. 110 of 1890 for the payment of, bonds issued under said latter act.”

Plaintiffs’ contention that the $12,000,000 proposed to be raised for the accomplishment of Purpose A of the ordinance is insufficient to pay the city’s share of the cost of constructing the under and overpasses necessary for the elimination of grade-crossings, and their further contention that the ordinance fails to insure the city’s control of the expenditure of the funds derived from the bonds, are both untenable.

Any fear the plaintiffs may have that the identity of these funds will be lost by being commingled with other funds of the city, or that they will bé handled by the Public Belt Railroad rather than by the Commission Council, and for purposes other than those intended, is groundless. These are all matters that are specifically regulated by statute. Act -No. 4 of 1916. Under this law the issuance and sale of these bonds is placed under the jurisdiction of the Board of Liquidation, City Debt, and in this respect neither the Public Belt Railroad nor the Commission Council has any jurisdiction over the bonds. The taxes that are levied and collected for the retirement of these bonds must be paid over to the Board of Liquidation, City Debt, day by day, as they are collected and to this board is given the exclusive jurisdiction of applying these monies toward the retirement of the bonds. Sections 10, 11, and 14.

The funds derived from the sale of these bonds can never be used for purposes other than “that stated in the submission of the proposition to said taxpayers,” (Section 4) and the ordinance specifically provides that “the proceeds of this bond issue shall be deposited in special trust fund accounts in the depository banks of the City of New Orleans, and shall be secured by the banks receiving said deposits and shall only be expended or withdrawn therefrom as herein provided. The expenditure of the proceeds of this bond issue shall be under the supervision of the Commission Council- of the City of New Orleans, and said proceeds of said bond issue so deposited as aforesaid shall be expended only upon vouchers or checks drawn against said fund's by the Commissioner of Public Finances, upon the approval of the Commission Council of the City of New Orleans.” Section S of Ordinance No. 17549. If and when an attempt is made to use these funds for a purpose other than the elimination of grade-crossings by the construction of under and overpasses, and if and when the Public Belt Railroad and not the Commission Council of the City .of New Orleans attempts to disburse these funds, it will be time enough for interested taxpayers to seek the appropriate relief to prevent the misapplication of such funds and their mishandling.

We now pass to the attack that is being made on the legality of the election itself.

It is the argument of the plaintiffs that the election was rendered null and void when, instead of the vote being cast legally and regularly, in accordance with law, this was done through the use of voting machines, since these machines, under the Voting Machine Law, are confined to primary and general elections and not to special taxpayer elections; in the alternative they contend that if the use of these machines is authorized in such elections by the act, that the same is unconstitutional in that the body of the act is broader than its title.

While it is true that the object of the act is to make it mandatory that voting machines be used in all primary and general elections, the fact that in the body of the act the use of the machines is also authorized for the determination of amendments, propositions, or other questions that may be submitted to the vote of the people does not necessarily render the act unconstitutional. Peck v. City of New Orleans, 199 La. 76, 5 So.2d 508. Nor does the use of these machines in the special election strike the same with nullity for under the express provisions of Act No. 4 of 1916, authorizing the issuance of the bonds, it is declared that “The provisions hereof are self-operative, and’ the City of New Orleans and the several boards and bodies herein referred to shall carry the same into effect.” Section 21. No restriction is placed upon the city's right to choose whatever medium it feels is best for recording the vote cast in 'such an election and it makes no difference, therefore, whether the city chooses to have the voter’s choice marked on a ballot and dropped into a box or to have such choice registered and marked on the ballot as fixed in the voting machine. The city has the unqualified right to set up whatever machinery it deems most expedient for registering the votes in such an election and it was well within its rights when it made provision in the ordinance that the, official ballot to be used in the election was to be printed and set up in the voting machines so that every voter, in registering his vote, could make his mark on the ballot as so fixed in the machine to show that he was either for or against the stated proposition.

It is our opinion, therefore, that the Commission Council was not only authorized to use these machines in the election but that, in choosing this medium for recording the votes, it followed the public policy established ■ in this state to insure honest elections when the legislature adopted the'Voting Machine Law (Act No. 84 of 1940, as amended and re-enacted by Act No. 138 of 1942). The fact that these machines were not so constructed as to tabulate the results is immaterial, for this function was delegated to the election commissioners by the ordinance and it has not been suggested or shown that the returns made by these officials were not honest and fair.

The many irregularities alleged to have occurred during the course of the election (and above set out in detail) merit no further consideration than the statement that they are not supported by the evidence. We may add, also, that even if they had been established by the evidence, there is no allegation in the petition that the results of the election were in any way altered by their occurrence and no efforts were made to show that such was the case when the trial took place. See East Jefferson Water Works District v. Caldwell & Company, 170 La. 326, 127 So. 739; McCann v. Mayor and Councilmen of Morgan City, 173 La. 1063, 139 So. 481; 5 Mc-Quillen on Municipal Corporations, 2d Ed., 1431 and 1437, Sections 2361 and 2361.2; 44 C.J. 1206, Section 4180.

The allegations that are intended to establish a scheme on the part of the proponents of the bond issue to confuse and mislead the voters so that a favorable vote might be secured, like so many of the other allegations contained in the petition, are not supported by the record.

There is not a scintilla of evidence to show that the voters, or any one of them, were deprived of their right to vote by the withholding of their assessment certificates, or that any fraud resulted from the conduct of the election in conjunction with the general election at which a member of this court was selected, and we cannot assume that any did. On the contrary, the presumption is that those officiating at the election will follow and perform their duties as the law directs.

For the reasons assigned, the judgment appealed from is affirmed.

O’NIELL, C. J„ absent.


author: IíAMITER, Justice.

text:
    212 La. 1055
    KIRBY LUMBER CORPORATION v. CAIN et al. ANDERSON-POST HARDWOOD LBR. CO., Inc. v. KIRBY LUMBER CORPORATION.
    No. 36949.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Thompson, Lawes & Cavanaugh, of Lake Charles, for plaintiff, defendant, appellant Kirby Lumber Corp.
    J. R. Ferguson, of Leesville, for defendant, plaintiff, appellee Anderson-Post Hardwood Lumber Co., Inc.
    Kay & Kay, of De Ridder, for defendant, appellee Henry Day Cain.
   IíAMITER, Justice.

These two cases, consolidated in the district court and in this court, and docketed here under one number, involve a dispute over timber on a certain tract of land located in Vernon Parish.

The Kirby Lumber Corporation initiated the litigation by instituting suit No. 11,415, on the docket of the District Court of Vernon Parish, against Henry Day Cain, the Anderson-Post Hardwood Lumber Company, Inc., and others. The petitions (an original and two supplemental) alleged plaintiff's ownership of the disputed timber under and by reason of a timber deed executed by ITenry Day Cain on October 30, 1929, and they further set forth that ‘the defendants were cutting and removing the timber without any right to do sol

In connection with that suit, and as prayed for by the Kirby Lumber Corporation, the court directed the issuance of temporary restraining orders and further decreed that defendants be ruled to show cause why preliminary writs of injunction should not issue. Also, there was obtained by such plaintiff a writ of sequestration under which numerous logs already cut were seized; and thereafter these logs were released to it upon the furnishing of a bond.

Meanwhile, the Anderson-Post Hardwood Lumber Company, Inc., brought suit No. 11,436, on the-docket of the District Court of Vernon Parish, in which it asserted ownership of the disputed timber, under a contract of sale from Henry Day Cain, and sought injunctive relief against the Kirby Lumber Corporation. As prayed for, it obtained a temporary restraining order and the issuance of a rule nisi for a preliminary writ of injunction.

The several rules to show cause, issued in the respective suits, were- consolidated and in- due course heard together. At the hearing considerable evidence was introduced, much of which concerned the merits of the litigation; but, as shown by the record, it was understood and agreed by all counsel that the two suits were not to be submitted at that time for adjudication on their merits.

Notwithstanding this agreement of counsel, the court, at the conclusion of the hearing on the rules nisi, passed upon the merits of the litigation, holding that Kirby Lumber Corporation had never acquired title to the disputed timber. Consequently, there was judgment rendered and signed dismissing the suit of that litigant, dissolving its temporary restraining orders and writ of sequestration, and recalling and setting aside its rules to show cause. There was further judgment directing that, upon the furnishing of bond in the sum of $500, a preliminary writ of injunction be granted in suit No. 11,436 to the Anderson-Post Hardwood Lumber Company, Inc. Additionally, the court awarded to the latter and to Henry Day Cain certain damages against the Kirby Lumber Corporation for the wrongful issuance of the temporary restraining orders and the writ of sequestration.

Thereafter, on the application of Kirby Lumber Corporation, the district court granted this suspensive appeal, and it ordered all proceedings in the two cases stayed during the pendency of the appeal.

The first complaint offered here by appellant is that the court erred: “In rendering a final judgment on the merits and deciding the ownership of the timber when the hearing was limited and the cases were only submitted on rules to show cause why preliminary'writs of injunction should not issue.”

And in support of this complaint it is stated by appellant's counsel: “Counsel for appellant and counsel for appellee advised the court at the time the evidence was about concluded that the cases were only being submitted on rules to show cause why preliminary writs of injunction should not issue, when the court inquired and suggested that the cases be submitted on the merits. Counsel for appellant advised the court that appellant could not submit the case on the merits, because there were certain phases of it on which Kirby Lumber Corporation, appellant, had offered no evidence, and that the case was only being submitted on whether or not the preliminary writs of injunction should issue (see statement of court and counsel, Tr. vol. 1, pages 236-237).”

This statement is fully borne out by the record and also by the brief of counsel for Anderson-Post Hardwood Lumber Company, Inc., from which we quote the following: “The matter was not then tried on the merits and has not yet been tried on the merits, even though the attorney for Kirby Lumber Corporation contends that it was. In fact, when the Judge later made a suggestion that the whole thing be submitted on the merits, the Kirby Lumber Corporation’s attorney refused to do so (Tr. 236 and 237).”

Since these cases were not submitted for a decision on their merits the district court was without authority to hold (as was done) that the Kirby Lumber Corporation had no title to the timber and, as a consequence, to dismiss the suit of that litigant and dissolve its writ of sequestration. The only question actually presented by the rules nisi (consolidated for the hearing) was whether or not each of the claimants had made a showing sufficient to entitle it to injunctive relief pending a consideration of the issue of ownership of the timber, a matter that can be determined only on a trial of the merits. Succession of Levins, 184 La. 825, 167 So. 454; Ridge Park, Inc., Police Jury of Jefferson Parish et al., 210 La. 351, 27 So.2d 128.

In the two suits each of the plaintiffs alleged both a right and a cause of action. And the evidence adduced on the hearing of the rules, together with the allegations of the respective petitions, was sufficient to justify the protecting of each by a preliminary writ of injunction until the merits of the cases could be tried and the issue of ownership properly presented and determined. Accordingly, we conclude that the district court erred with respect to the demands of Kirby Lumber Corporation in suit No. 11,415; it correctly ordered, however, the issuance of the preliminary writ of injunction in favor of the Anderson-Post Hardwood Lumber Company, Inc., in suit No. 11,436.

For the reasons assigned, with respect to suit No. 11,415, on the docket of the District Court of Vernon Parish, the judgment is reversed and set aside, the motions to dismiss the temporary restraining orders and the exceptions of no right and no cause of action are overruled, the motion to dissolve the writ of sequestration is referred to the merits, and the district judge is directed to cause the issuance of preliminary writs of injunction in favor of Kirby Lumber Corporation, as prayed for, on its furnishing bond to be fixed by him. With respect to suit No. 11,436, on the docket of the mentioned court, the judgment ordering the issuance of a preliminary writ of injunction in favor of Anderson-Post Hardwood Lumber Company, Inc., is affirmed. And the cases are remanded to the district court to be proceeded with according to law and in a manner not inconsistent with the views herein expressed.

The costs of this appeal shall be paid by appellees. All other costs shall await the final determination of the litigation.

O’NIELL, C. J., absent.


author: HAMITER, Justice.

text:
    212 La. 1062
    STATE v. AMBROSE.
    No. 38719.
    Supreme Court of Louisiana.
    Feb. 16, 1948.

      Chandler C. Luzenberg, Jr., of New Orleans, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty, Gen., Herve Racivitch, Dist. Atty., Guy Johnson, 1st Asst. Dist. Atty., and Joseph F. Monie, Asst. Dist. Atty., all of New Orleans, for appellee.
   HAMITER, Justice.

On June 17, 1947, the defendant, Robert Ambrose, was tried by a jury for the offense of attempted armed robbery and found guilty as charged. Thereafter he was convicted by the court as a fourth offender, under the provisions of Act No. 45 of 1942, and was sentenced to serve a term at hard labor in the State Penitentiary for the rest of his natural life. From the latter conviction and sentence he appealed, presenting for our consideration one bill of exceptions taken to the court’s action in overruling a motion in arrest of judgment.

Insofar as pertinent here, Act No. 45 of 1942 provides:

“Section 1. Be it enacted by the Legislature of Louisiana, That any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state, would be a felony, commits any felony within this state, upon conviction of such felony, shall be punished as follows:
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“(3) If the fourth or subsequent felony is such that, upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life, then such person must be sentenced to imprisonment for such fourth subsequent felony for a determinate term not less than the longest term prescribed for a first conviction and not more than his natural life and in no case less than twenty-years-.”

Among the convictions with which the defendant was charged as a fourth offender was one occurring on November 16, 1938, in the Criminal District. Court of Orleans Parish. On that date he entered a plea of guilty to larceny from the person of $2.53, a crime declared by Act No. 40 of 1914, the bill of information filed against him having alleged an offense of assault and robbery committed on August 27, 1938. A violation of that 1914 statute constituted a felony, for the penalty prescribed was imprisonment with or without hard labor.

Under the motion in arrest of judgment, to the overruling of which the instant bill of exceptions was reserved, defendant contends that although the offense he committed in 1938 was a felony under Act No. 40 of 1914 it cannot be considered in his present prosecution (for being an habitual offender) because under the Louisiana Criminal Code, Act No. 43 of 1942, which repealed the 1914 statute that offense today would be only a misdemeanor. His position, in other words, is that for a prior conviction to be applicable under Act No. 45 of 1942 the crime committed must be a felony under our present criminal statutes. Thus, his counsel argues: “As it exists today larceny from the person in the value of $2.53 is a misdemeanor and not a felony and should not be considered as a felony in establishing the status of the defendant as an habitual criminal.”

Defendant’s position, in our opinion, is without merit. The habitual commission of felonies is not made a crime by Act No. 45 of 1942. That statute merely prescribes a heavier penalty for the repetition of criminal conduct by a person who lias been previously convicted of a felony. State v. Dreaux, 205 La. 387, 17 So.2d 559, 561. In its Section 1 there is set forth the punishment to be imposed upon a person found guilty of a felony “after having been' convicted * * * of a felony,” the severity of the punishment being dependent on the number of the felonies committed.

A crime is defined as an act or conduct for the commission of which a penalty is denounced by our substantive criminal law. State v. Bischoff, 146 La. 748, 84 So. 41, and State v. Rodosta, 173 La. 623, 138 So. 124. The act to which defendant pleaded guilty on November 16, 1938, was larceny from the person, admittedly a crime and a felony under the then effective provisions of Act No. 40 of 1914.

Of course that statute was repealed by Act No. 43 of 1942, Louisiana Criminal Code. But the repeal in no manner affected defendant’s conviction under such statute or the penalty prescribed by it for the crime that he committed. In Article 142 of Section 1 of the Louisiana Criminal Code it is stated: “This Code shall not apply to any crimes committed before it becomes effective. Crimes committed before that time shall be governed by the law existing at the time the crime was committed.”

And Section 2 of such Code provides in part:

“Section 2. The following statutes or parts of statutes are hereby repealed and shall have no application1 to crimes committed after the effective date of this Code; however, crimes committed before the effective date of this Code shall be prosecuted and punished under such statutes as were in effect at the time of the commission of the crime, and, to the extent of such application only, such statutes or parts of statutes are preserved.
******
“Act 40 of 1914 (stealing from another person when such theft is not a robbery or an attempt where same does not amount to an assault with intent to rob).”

Further, Act No. 35 of 1942, a general saving clause statute, recites, insofar as pertinent here, that: “Section 1. Be it enacted by the Legislature of Louisiana, That the repeal of any statute shall not have the effect of releasing or extinguishing any penalty, forfeiture or liability, civil or criminal, incurred under such statute unless the repealing act shall expressly so provide,. and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.”

With respect to this recitation, it is to be noted that the Criminal Code, when repealing Act No. 40 of 1914, did not expressly provide for the releasing or extinguishing of the penalty (which showed that the offense was a felony) incurred under that statute; to the contrary, it specifically announced as before shown that the entire statute, including the penalty provision, would continue to be applicable to the crimes that were committed during the effectiveness thereof.

It is our holding, therefore, that the district court properly overruled the motion in arrest of judgment and correctly concluded that defendant’s conviction in 1938 was for the commission of a felony within the meaning and intendment of Act No. 45 of 1942. And, in fortification of this holding, the observation is offered that had the 1914 statute constituted larceny from the person a misdemeanor and the Criminal Code of 1942 made it a felony, the defendant undoubtedly would not contend, as he does now, that his crime of 1938 is governed by the latter law.

The conviction and sentenct are affirmed.

O’NIELL, C J., not participating.


author: McBRIDE, Judge.

text:
    MICHELLI v. RHEEM MFG. CO. et al.
    No. 18781.
    Court of Appeal of Louisiana. Orleans.
    March 1, 1948.
    Rehearing Denied March 15, 1948.
    Writ of Certiorari Denied April 26, 1948.

      Miazza & Drury, of New Orleans, for plaintiff and appellee.
    Gordon Boswell and Stanley E. Loeb, both of New Orleans, for defendants and appellants.
   McBRIDE, Judge.

This is a suit brought by plaintiff, Joseph T. Michelli, against Rheem Manufacturing Company and its liability insurance carrier, American Automobile Insurance Company, seeking to recover for personal injuries, for damage to his automobile, and for certain medical and other expenses, resulting from an automobile accident. The amount sued for is $3,581.88.

This case was consolidated with two other suits arising out of the same accident, so as to avoid repetitious trials. The other suits are entitled: Middleton v. Rheem Manufacturing Company and American Automobile Insurance Company, 34 So.2d 271, and Brousseau versus the same defendants, 34 So.2d 273, both decided by us this day.

After a trial on the merits there was judgment in favor of plaintiff and against both defendants for the sum of $1,831.88. Defendants have appealed.

The undisputed facts are that on October 9, 1939, at about 7:30 o’clock, A. M., a truck and semi-trailer of the Rheem Manufacturing Company, having an over-all length of 31 feet, weighing 8,400 pounds, and loaded with 168 steel drums, was being driven by Joseph P. Smith, the employee of said defendant, on his company’s business, in a northerly direction, or towards Baton Rouge, Louisiana, on its right-hand side of Airline Highway (U. S. No. 65), a two-lane, paved highway, within the corporate limits of the Town of Kenner, Louisiana. An automobile driven by Joseph S. Middleton was following the truck. Another automobile, owned and being driven by plaintiff, Joseph T. Michelli, was proceeding south, on its right-hand side of the highway, or toward New Orleans, at a speed of between 50 and 60 miles an hour. The truck’s driver, upon reaching Lyons Street, which is a gravelled or shelled street, made a left turn to leave the highway and enter the said Lyons Street. This street runs at a right angle to the highway, and enters it from the west or river side, but does not cross the highway. When the cab of the truck had entered Lyons Street, and. the semi-trailer had cleared the east traffic lane of the highway, Michelli, to avoid a collision with the truck, swerved his vehicle to the left to pass behind the trailer, and collided head-on with the Middleton automobile which had been following the trailer. The weather was clear, the visibility good and the roadway was dry.

Plaintiff attributes the accident to the negligence of the truck driver, alleging that had due prudence and care been exercised in the operation of the truck, its driver would have permitted plaintiff’s automobile to pass before attempting the left turn, as he saw or should have seen plaintiff’s oncoming car. The truck driver is also charged with failing to keep a proper lookout.

The suit is defended upon the grounds that Michelli was driving his automobile at a high and excessive rate of speed; that he failed to heed the highway signs warning traffic that the speed limit in the Town of Kenner was 25 miles an hour; in failing to observe and heed the hand signal given by the driver of the truck before the turn was made; in failing to have his car under proper control, and in not stopping or slowing his speed so that the truck and trailer could complete the turn. Defendants disclaim any responsibility, and in the alternative charge that Michelli was guilty of contributory hegligence.

Joseph C. Brousseau, Lieutenant (senior grade), United States Naval Reserve, was a passenger in the Michelli car, and was sitting on the front beside the driver. Called as a witness for plaintiff, he testified that he and Michelli had left Baton Rouge at about 5:30 o’clock that morning to go to New Orleans. Near Gonzales, Louisiana, they gave a lift to two young men, who rode in the rear seat of the car. As they neared the locus of the accident the truck made a left turn and cut across the lane in which they were travelling, and that it was impossible for Michelli to stop, because the truck was “right on top of us” when the turn was made; that Michelli had the alternative of either running into the truck or swerving to the left to get behind it. This witness stated that the truck was entirely blocking Michelli’s side of the highway, the front part being on the shoulder of Michelli’s traffic lane, and the rear wheels being on the black or center line of the highway. That when the truck started the turn, Michelli’s automobile was between 75 and 100 feet from it, and that Michelli applied his brakes, but it was impossible to stop in that short distance. That when the Mi-chelli car swerved, the rear wheels of the trailer were still on the black line, but the left-hand side of the roadway was open, and just as Michelli drove his car around the rear of the trailer it collided with the Middleton automobile, which was proceeding in the opposite direction.

Joseph S. Middleton, who is one of the plaintiffs in the three consolidated suits, testified in substance as follows: That he was driving on the highway in the direction of Baton Rouge; that just as he drove across the overpass north of Kenner there was a large trailer-truck ahead of him travelling in the -same direction, which he attempted to pass; after pulling out from behind the truck and straddling the black line dividing the traffic lanes, he observed the Michelli car, which was 1200 to 1500 feet away, approaching from the opposite direction. Just then the truck driver sig-nalled for a left turn, and he reduced his speed and fell in behind the truck. The truck proceeded to make the turn and was engaged in that maneuver when the Michel-li car came from around the rear of the trailer and ran head-on into the Middleton car. Middleton states that the left turn had been made toward the Mississippi River, and that the cab of the truck had cleared the highway entirely, but the trailer blocked -the river lane of the highway, that is to say to the left of Middleton. After falling in behind the Rheem truck, which he continued to follow, the next time he saw the Michelli car was at the moment of the collision. The witness states that the truck had been proceeding at about 20 to 25 miles an hour, but on the turn its speed was reduced to about 10 to 12 miles an hour, and that it continued to make the left turn at that speed without having to a stop. The truck made a wide, sweeping turn “like transcribing a half circle or arc.”

Joseph T. Michelli, plaintiff, testified substantially as follows: He admits that he was driving between 50 and 60 miles an hour, and that when he first saw the Rheem truck it was approaching from the opposite direction on its proper side of the road. He did not notice the side road (Lyons street) and was under the impression that the truck intended to travel straight toward Baton Rouge. That he did not observe the driver giving a signal of any kind, and had no prior indication that the truck would make a turn until it actually started to cross the highway. When the truck turned, his car was about 50 feet away and he applied the brakes, but could not stop within that distance; that he endeavored to avoid striking- the truck by swerving left to pass behind the trailer. He did not see the Middleton automobile until after he had swerved, and he'tried to avoid crashing into it by pulling farther left toward the canal on the side of the highway, but was unsuccessful and the cars collided approximately head-on. Michelli states that the highway at that point is about 18 feet wide, and that the rear of the trailer was at about the middle black line and blocked the west traffic lane, and the cab was resting on the shoulder of the road. . •

Clinton Charles Gautreaux, one of the young men picked up by Michelli at Gonzales, and who rode on the rear seat, testified for plaintiff as follows: On the date of the accident, he and Beauman Gautreaux, who was killed in a subsequent automobile accident, were passengers in the Michelli automobile. The accident occurred, on the outskirts of Kenner, Louisiana, on the Baton Rouge side of the overpass; the road into •which the truck attempted to turn is a shelled road and .does not entirely cross the highway. He further stated that as the Michelli car neared the place where the accident occurred, he observed the truck approaching from the opposite direction, and that it made a left turn; that he did not observe any signal given by the driver. That when the truck turned, Michelli applied his brakes; that the rear end of the truck was covering Michelli’s lane and the front of it was located upon the shoulder of the road on Michelli’s right-hand side; that Michelli swerved left to go behind the trailer, and a collision with the Middleton car occurred. The witness stated that it was impossible to pull to the right, because there would have been a collision with the truck. Gautreaux was unable to estimate the distance between Michelli’s car and the truck when the turn was made.

Defendants’ only witness was Joseph P. Smith, the driver of the Rheem truck, who stated that it was carrying a top-heavy load and was proceeding from New Orleans to St. Rose, Louisiana. That he drove at a speed of 25 miles an hour, and when he neared Lyons Street he slowed down to about 10 or 12 miles an hour, to facilitate his making a left turn. That about 75 yards before reaching Lyons Street, into which he intended to turn, he extended his left hand as a signal and kept it in this position until the truck was entering Lyons Street, when he heard the impact of a collision, and then pulled his hand back into the cab of the truck. Smith observed the Michelli car when he started the turn, and he estimated it to be about four blocks away. His statements regarding distances are amazing. His opinion was that there were about 200 yards to a block, and that the Michelli car was 800 yards away. Later he estimated that 2000 yards constituted a block. He further stated that there is a fifth wheel on the trailer which permits a sharp turn to be made, and that the turn into Lyons Street was sudden and was made without the truck having come to a stop beforehand. According to Smith, he first saw the Michelli car when the truck was 600 yards away from the side road, and when he reached a point about 100 yards from this road he slowed down the speed of his truck preparatory to making the turn.

It is readily apparent that the pivotal point in this case involves a question of fact. Just how far away from the truck was the Michelli automobile when the truck driver attempted to make the left turn? The responsibility for the accident must be placed upon either the driver of the Rheem truck or upon Michelli, for there is no evidence to indicate that Middleton was in any wise negligent. If the Michelli car was from 50 to 75 feet away, the conclusion is inevitable that Smith was guilty of gross negligence and carelessness in attempting to maneuver the truck into a left turn across the highway directly in the path of an oncoming car. . On the other hand, if the Michelli car was 2400 feet away when the turn was attempted, as testified to by Smith, the truck driver must be absolved of all responsibility for the occurrence.

The court below gave written reasons for judgment, and its appreciation of the testimony is expressed as follows: “In this case the only believable and credible testimony indicates that when the Rheem Manufacturing truck was approximately 200 to 250 feet from the gravel road, the Michelli car was then 1200 to 1500 feet away and travelling at a speed estimated at between 50 and 60 miles per hour. The truck at first was travelling at the rate of about 25 miles per hour but as it neared the intersection it slowed down to a speed estimated at between 8 to 12 miles per hour. This, according to the witnesses in a position to know, placed the Michelli car at between 75 to 100 feet from the side road, when it first became apparent to Michelli that the truck driver intended making a left turn. The entire testimony of Smith, the Rheem driver, as to the distance of the Michelli car from the side road when the truck was within a hundred feet from this road, is so inaccurate and- confused as to make it worthless on this most important point. Smith maintains that Michelli’s car was 800 yards from the road, and in one part of his testimony 'on cross-examination he makes the ridiculous statement that the car was 8000 yards away. Smith’s testimony indicates and the Court believes that Smith, did not, in fact, notice the Michelli car at all, and does not know 'the position of that car when he started to make the left turn with a thirty-one foot vehicle. Had Smith noticed Michelli’s approaching car, he could not but have realized' that it was not possible for him to clear Michel-li’s side of the highway. By attempting the turn, he forced Michelli to choose either to run into the side of the truck, for it blocked not only the west half of the highway, but also the west shoulder, or to attempt to avoid a collision with the truck by going around the back of the truck. Michelli chose the latter, whch involved the Middleton car in a collision. Regardless of the choice, the truck driver’s action in making the left turn when he did, resulted in creating a situation whereby Michelli could not avoid a collision. Had the truck driver noticed the Michelli car and had kept in mind the extra duty placed on him because of the type of vehicle he was operating, and had deferred making a left turn for a very brief interval of time, the accident would not have occurred. That conclusion is supported by Middleton’s action, who, in attempting to pass the truck, saw the Michelli car, and even at that time realized that it was not safe for him to attempt to pass the truck because of the approaching automobile. From the facts as disclosed- by the testimony, it is the Court’s opinion that the accident resulted solely from ,the gross fault and negligence of the Rheem driver, and that the speed of the Michelli car was not a proximate contributing cause of the accident.”

Middleton was interrogated as- to how long he followed the truck after the attempt to pass it, and the testimony is as follows:

“Q. Can you tell us how long you followed that truck before it commenced to turn? A. You mean in the point of time or distance.?
“Q. Time and distance. A. My estimate would be approximately 30 seconds.
“Q. And how far in distance? A. Maybe about 100 to 150 feet.”

Middleton first noticed the Michelli car when he pulled out from behind the truck, and it was then about 1200 to 1500 feet away. While the truck and the Middleton car travelled 100 to 150 feet, or for the 30 seconds, it is obvious that Michelli trav-elled quite some distance in the interim, for an automobile driven at 55 miles an hour will travel, in 30 seconds, a distance of 2420 feet.

It is well settled in Louisiana that the operator of a motor vehicle who desires to make a left turn, carries the responsibility of being certain that the turn can be made without danger to normal overtaking or oncoming traffic, and he must yield the right of way to such vehicles.

Act No. 286 of 1938 (Highway Regulatory Act), Sec. 3, Rule 9(a), provides as follows: “The driver of any vehicle on the public roads, highways and bridges of this State shall ascertain, before turning around upon any such road, highway or bridge, that there is no traffic, vehicular or pedestrian, approaching from either direction which will be unduly or unnecessarily delayed and shall yield right-of-way to such approaching traffic and shall not attempt to make a turn unless and until the said way is clear.”

In Bonstaff v. Hawkins, La.App., 30 So.2d 781, 782, the facts were very similar to those in the instant case. Our brothers of the Second Circuit said: “Louisiana courts have uniformly held that one may not make a left turn across a highway unless that turn can be made without danger to normal overtaking and oncoming traffic. One of the late cases in point is that of Home Ins. Co. v. Warren et al., La.App., 29 So.2d 551.”

It was said in Home Insurance Company v. Warren et al., La.App., 29 So.2d 551, 552:

“The law as has been so frequently cited in different cases, makes it incumbent upon the driver of a motor vehicle attempting to execute a lefthand turn on a public highway to take such precautions and to be so careful'that it would hardly seem necessary for the courts to have to make .any further statement beyond what. is contained in the statute itself. We had occasion to cite it very recently in the case of Lane v. Bourgeois, La.App., 28 So.2d 91, and in which we referred to other recent cases. The rule as laid down in the statute, Dart’s Sec. 5214, Act No. 286 of 1938, § 3, Rule 9, makes it the duty of the driver in such cases to yield the right of way to approaching traffic and prescribes that he ‘shall not attempt to make a turn unless and until the said way is clear.’
“In this case the driver was operating a truck, and although its dimensions are not given, we imply from the fact that it was a gasoline truck that it was a rather long and heavy one. Its length and size imposed an additional duty on his part because obviously it is not as easy to handle such a vehicle in executing a left hand turn on the highway as it is a lighter and shorter one.”

In discussing the extreme care required of drivers making left-hand turns, in Seale v. Stephens, La.App., 24 So.2d 651, 653, the court said: “It is well established in our jurisprudence and in our law that the making of a left turn on a much travelled highway is a very dangerous operation, requiring great care and caution. The responsibility for seeing that such a left turn can be made in safety is placed upon the driver desiring to make such left turn. The law, Highway Regulatory Act of 1938 (Rule 9, Section 3 of Act 286), requires a driver to ascertain before making such a left turn that there is no traffic -approaching from either direction which will be unduly or unnecessarily delayed and requires him to yield the right of way to such approaching traffic.”

The facts in Grasser v. Cunningham et al., La.App., 200 So. 658, 660, were much similar to the present case. It was there said: “The evidence convinces us that Miss Watson was guilty of negligence in attempting to make a left-hand turn into this gravel road in the face of this on-coming Grasser car. . Making a left turn on a much-traveled highway is a very dangerous -operation, requiring great care and caution. 'The responsibility for seeing that such a left turn can be made in safety is placed -upon the driver desiring to make such a •turn. The law requires a driver to ascertain before making such a turn that there is no traffic approaching from either direction which will be unduly or unnecessarily delayed and requires him to yield the right of way to such approaching traffic. And when a driver intends to turn to his left to enter an intersecting road, he shall approach the intersection in the lane for traffic to the right of and nearest the center of the highway, and in turning shall pass beyond the center of the intersection, passing as closely to the right thereof as practicable before turning the vehicle to the left. Act No. 286 of 1938, Section 3, Rule 9, paragraphs (a) and (b), Dart’s Gen.Stat. § 5214.”

Concerning the location of the Michelli car when the truck turned, there is on the one side the testimony of Brous-seau and Michelli, which would indicate that it was from 50 to 100 feet away, and the testimony of those witnesses is largely corroborated by Middleton’s statements. There appears to be no conflict in the testimony of these three witnesses as to'that important detail, and we'believe that Mi-chelli’s car was very close to the truck when the turn was made. Smith’s testimony is highly confused and inconsistent. He insists that Michelli’s car was 800 yards away when he commenced to turn, and to us it is inconceivable hotv Michelli could have travelled 2400 feet, or nearly one-half mile, during the short time consumed in making the sudden, partial-turn. It would have taken but a few seconds at the most to maneuver the truck into the turn, and this being so we cannot see how Michelli could have travelled that distance in that short period. It is our opinion that the accident was caused solely through the imprudence and carelessness of Smith in making the left turn with t-he long, heavily laden truck and trailer, which is a most dangerous movement, in the face of oncoming traffic. We agree with the trial court that Smith did not in fact notice the Michelli car at all, for had he noticed it he could not but have realized that it was not possible to cross the highway with safety.

When the truck turned, Michelli was faced with the alternative of either driving into the front part thereof, or swerving to the left in the hope of passing safely around the rear of the truck. In the sudden emergency created by the negligence of the truck driver, he 1 chose ' the latter course, which seems consistent with the reaction of a prudent person, under the circumstances, and we do not see where he was negligent in taking the course he pursued.

Defendant’s counsel also argue that Michelli was negligent in not seeing Smith’s signal of his intention to turn. Under the circumstances, if necessary, a motorist must give the proper warning and come to a full stop, and await a favorable opportunity to turn when- he will not interfere with traffic in either direction. The duty of not interfering with or impeding traffic in either direction is placed upon the motorist by law, and he must not be content with merely holding out his hand. This is particularly true in this case, where the oncoming car was in close proximity to the truck intending to make the turn.

The speed of vehicles travelling at the locale of the accident is conceded to be restricted to 25 miles an hour, by virtue of the provisions of Ordinance 200 of the Town of Kenner,' -and it is admitted that there are signs along the road, one of which is located just north of Lyons Street, reading “Kenner * * * Speed Limit 25 Miles.”

Counsel for defendants argue that Michelli, in travelling at the admitted speed of 50 to 60 miles an hour, violated this ordinance, and that the responsibility for the accident rests squarely upon his shoulders. We believe, however, that the speed of the Michelli car was not a contributing cause of the accident, as the collision could well have happened if it had been going 25 miles an hour, just the same as it was going 50 to 60 miles an hour.

In Grasser v. Cunningham, supra, the cpurt said: “The fact that an automobile was going at a greater rate of speed than allowed by law at the time of a collision will not bar a recovery for injuries sustained in the collision if such excessive speed was not a proximate cause of the accident. 4 Blashfield, Cyclopedia of Automobile Law and Practice, Perm.Ed. § 2611, >}c % a

Defendant’s counsel have cited several cases which they maintain support their .contention, but we believe that each of the cited cases can be distinguished from the instant one. In each, the oncoming vehicle was a sufficient distance away to warrant the driver of the car attempting to turn believing that there was sufficient time to negotiate the turn with safety. Plere, however, the Michelli car was in close proximity to the truck, and the driver should have yielded the right of way.

That the Rheem truck did not actually collide with plaintiff’s car is of no importance. It is a well defined rule of law that he who by his negligence creates a dangerous situation is liable to one who-, acting as a reasonably prudent person would act, is injured while attempting to avoid the created danger. See Conners v. Houma Packing Co., Inc., et al., 12 La.App. 167, 125 So. 294.

There seems to be no dispute as to the amount awarded plaintiff by the trial court, as counsel for defendants made no reference thereto in brief or in oral argument. Plaintiff was allowed $581.88 for costs, wages lost, medical expenses and damages to his automobile, all of which items appear adequately proven. For his-personal injuries the award was $1,250.00. Plaintiff was attended by Dr. J. T. Nix, who died prior to the trial of this case; however, there was offered in evidence by agreement of counsel a letter from Dr. Nix’s office, stating that he had treated plaintiff from October 9, 1939, to October 27, 1939. Michelli sustained a brain concussion and was cut on the chin, and there remains a scar which the trial court stated was under the chin and about the size of a fingernail. He further sustained á hemp-toma of the right leg, bruises of the chest, and injuries to both legs, and still bears a scar on his right leg about 1^4 inches long. He remained in the hospital for a period of 19 days.

It appears to us that the award is not excessive, and for the reasons assigned the judgment appealed from is affirmed.

Affirmed.


text:
    MIDDLETON v. RHEEM MFG. CO. et al.
    No. 18782.
    Court of Appeal of Louisiana. Orleans.
    March 1, 1948.
    Rehearing Denied March 15, 1948.
    Writ of Certiorari Denied April 26, 1948.
    Frank T. Doyle and Nicholas Masters, both.of New Orleans, for plaintiff and ap-pellee.
    Gordon Boswell and Stanley E. Loeb, both of New Orleans, for defendants and appellants.
   McBRIDE, Judge.

This suit, brought by Joseph S. Middleton, plaintiff, for $3,060.00 to compensate him for personal injuries and medical expenses arising out of an automobile accident which occurred on October 9, 1939, at Kenner, Louisiana, against Rheem Manufacturing Company and its liability insurance carrier, American Automobile Insurance Company, was consolidated for trial with the action of Michelli versus these same defendants, 34 So.2d 264, in which an opinion and decree was handed down by us this day. We held therein that the accident resulted from the negligence of the truck driver of the Rheem Manufacturing Company.

The facts and issues presented are the same in both suits, with the exception that the defendants, as an additional defense in this matter, pleaded that * * * immediately after the collision, plaintiff made demand upon the Hartford Indemnity Insurance Company, the insurance carrier of the Michelli car; that the said insurance company, recognizing the negligence of the driver of that car, settled or compromised yvith plaintiff; and that therefore, in the alternative, respondents aver that the settlement by plaintiff with the Hartford Indemnity Insurance Company is a bar to any claim against respondents!.”

In the alternative, defendants further prayed that if the truck driver was guilty of negligence, which they deny, and that if the release executed by the plaintiff is not a complete ba.r to his claim, then the amount of the settlement should be credited against any judgment rendered in favor of plaintiff.

There was judgment in the lower court for $910.00 in favor of plaintiff and against both defendants, subject to a credit of $500.-00 already “collected by him from another source.”

Defendants have taken this appeal from the judgment, and plaintiff has answered the appeal praying that the credit of $500.00 be disallowed.'

The evidence shows that after the accident Middleton made demand upon Joseph T. Michelli and Hartford Accident and Indemnity Company, for payment of his damages, and the insurance company compromised for $500.00 any claim which Middleton had against Michelli and Hartford Accident and Indemnity Company.

In the release which Middleton executed, there appears the following language: “It is further agreed and understood that the undersigned hereby expressly reserves all of his rights, causes of action, claims and demands against Rheem Mfg. Co. and its insurer, American Automobile Ins. Co., to claim and sue for damages for personal injuries and expenses sustained by him in this accident, and releasing and discharging only Hartford Accident and Indemnity Co., Burroughs Adding Machine Co. and J. T. Mi-chelli.”

In the lower court the defendants contended that the reservation is inadequate, and that Rheem Manufacturing Company and American Automobile Insurance Company were fully released from any liability to Middleton.

There is no merit in this contention, as Middleton specifically reserved his rights against the defendants. The Supreme Court said, in the case of Landry v. New Orleans Public Service, Inc., et al., 177 La. 105, 147 So. 698, 700:

“Irrespective of whether under article 2203 of the Civil Code the discharge of one joint tort-feasor discharges his cotort-feasors, or whether under the facts Gumbel and Mrs. Moses and the defendants are solidarily liable to plaintiff, we think that plaintiff in receiving the payment of $2,500 from the insurance company did reserve his rights against the city of New Orleans and the New Orleans Public Service, Inc.
“It must be remembered that there' is nothing sacramental about the form in which such' a reservation shall be made. No one is presumed to renounce a right unless it clearly appears that he intended to do so. And the intention to reserve a right against codebtors may be inferred from any expression in the release of one co-debtor negativing the intent to release the other codebtors. Cusimano v. Ferrara, 170 La. 1044, 129 So. 630.
“We are unable to agree with the Court of Appeal that under the agreement with the insurance company, Landry divested himself of all rights and claims against the other debtors, subrogating the insurance company to such rights and claims.”

The injuries sustained by Middleton were described by Dr. John Redding, in a written report of his examination of plaintiff, as follows: “External injuries consisted of: multiple lacerations about the left eye, discoloration of the left orbit, multiple contusions and abrasions of both knees, and a laceration of the left knee. The lacerations ■ about the left eye were located on the upper lid, in the eyebrow, and on the side of the bridge of the nose. 'There were three separate cuts which ran in a transverse direction, and were roughly parallel. The laceration on the upper eye lid was about three quarters of an inch in length. There was a shorter laceration above this in the left eyebrow,, and there was a longer one which began in the eyebrow and extended down on to the side of the nose. It did not extend lower than the upper third of the nose. ' All of these wounds had been sutured, but they were all healing without any evidence of infection or other complication. There was a moderate amount of discoloration and swelling of both the upper and lower eye lids. * * * I feel that the lacerations will leave permanent scars. One of these on the eye lid will be visible only when the eye is closed. The shorter one and a good part of the top laceration are within the eyebrow, and should not be greatly disfiguring. The medial end of the top laceration, however, will be visible on the lateral surface of the upper part of the nose. * * * ”

Defendants have not disputed the amount awarded by the lower court, and we do not find that it is excessive.

In the answer to the appeal plaintiff complains of the credit of $500.00, representing the amount received in the compromise, and we are urged to amend the judgment to the extent that the credit be disallowed.

We notice that the answer to the appeal was filed on December 1, 1547, and the matter was argued and submitted to us on the following day. It is our opinion that we cannot take any notice of or give any consideration to the answer, for it was not timely filed—in the Court of Appeal for the Parish oí Orleans the answer to an appeal should be filed at least three days before the date fixed for the argument, otherwise the answer shall not be received.

Code of Practice, Art. 890, provides as follows: “If the appellee neglect to answer to the appeal within the time allowed him the appellant may have the cause set down for argument, but the appellee shall be allowed to file his answer until the day of argument if he only prays for confirmation of the judgment with costs; but if he demand the reversal of any part, or damag'e against the appellant he shall file his answer at least three days before that fixed for the argument otherwise it shall not be received provided, that in the courts of appeal for the several circuits of the State such answers to appeal shall be allowed filed before argument within the first three days of the actual sittings of any regular session of said courts of appeal.”

In the Succession of Solis, 10 La.App. 109, 119 So. 768, 770, we said:

“Appellee filed an answer to the appeal on December 12, 1928. The case was fixed for and argument was had on the day following. Objection was made that the answer came too late, because, under the provisions of article 890 of thé Code of Practice, an answer to an appeal, must be filed at least three dhys before the date of argument. The contention is made by appellee that, by the amendment of Act 103 of 1908, the answer may be filed at any time within three days of the actual sittings of the court. Unlike the Courts of Appeal of the First and Second Districts, this court sits only in the parish of Orleans, and its sittings are fixed by the Constitution, article 7, § 76, p. 59, as beginning not later than the first Monday in October and ending not later than the 30th day of June in the year following.
“In view of the foregoing, this proviso can have no application to this court, except perhaps in so far as the case is fixed within the first three days of the sittings beginning in October are concerned, but, under any circumstances, it cannot possibly apply to the case at bar. The answer can therefore receive no consideration at our hinds.”

We cannot revise a judgment in favor of one who has not himself appealed and who has not made timely answer to the appeal of his adversary.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.


text:
    BROUSSEAU v. RHEEM MFG. CO. et al.
    No. 18780.
    Court of Appeal of Louisiana. Orleans.
    March 1, 1948.
    Rehearing Denied March 15, 1948.
    Writ of Certiorari Denied April 26, 1948.

      Frank T. Doyle and Nicholas Masters, both of New Orleans, for plaintiff and ap-pellee.
    Gordon Boswell and Stanley E. Loeb, both of New Orleans, for defendants and appellants.
   McBRIDE, Judge.

The plaintiff, James C. Brousseau, brought this suit for $15,498.97 for personal injuries and expenses arising out of an automobile accident, against Rheem Manufacturing Company and American Automobile Insurance Company, and it was consolidated for trial with the case of Michelli versus the same defendants, 34 So.2d 264, an opinion and decree in which was handed down by us this day.

This demand grew out of the same accident, and the facts and issues respecting the accident are the same as presented in the Michelli case. Brousseau was a guest in Michelli’s car.

This suit is defended upon the ground that Michelli’s negligence was solely responsible for the accident. Defendants further claimed that Brousseau was negligent in that he acquiesced in Michelli’s driving at a highly excessive rate of speed, and that he failed to warn Michelli that the Rheem Manufacturing Company truck and trailer had started to turn into the side road at a time when Michelli could have stopped his car and avoided the accident.

The defendants further averred that Brousseau made demand for his damages upon Michelli and the Flartford Accident and Indemnity Company, his insurance carrier, and that the claim against them was settled and compromised, and that the release executed by plaintiff is a complete b'ar to his recovery against defendants. In ‘the alternative defendants plead that if the release is not 'a complete bar against plaintiff, then the amount received by him should be credited upon any judgment which he may obtain.

In the Michelli case we held that the accident was caused solely through the fault and negligence of the operator of the Rheem Manufacturing Company truck, and there is nothing in the record to indicate that the plaintiff herein, Brousseau, was in anywise negligent or acquiesced in any negligent acts of Michelli.

Also, for the reasons stated in the opinion and decree handed down this day in the case of Joseph S. Middleton versus these defendants, Middleton v. Rheem Mfg. Co. et al., La.App., 34 So.2d 271, the release executed by Brousseau in favor of Joseph T. Michelli and his insurance carrier does not constitute a bar to plaintiff’s action herein.

In the lower court plaintiff recovered a judgment for $6,273.97, subject to a credit of $1,000 “already collected by him from another source.”

The evidence shows that plaintiff sustained serious, painful and permanent injuries as a result of the accident. A review of the evidence discloses the following injuries :

(a) Loosening of four lower anterior teeth, centrals and laterals, which had to be removed and replaced with a bridge. This injury was accompanied by clinical and X-ray evidence of fractured alveolar bone with overlying tissues contused and adherent.

(b) Extensive lacerations of the scalp and face resulting in permanent and disfiguring scars.

(c) Cerebral concussion resulting in unconsciousness.

(d) Contusions of the left chest; abrasion of the left leg; general contusions.

(e) Hives resulting from the administration of anti-tetanus serum.

Brousseau was confined to the hospital from October 9, 1939, to October 18, 1939. He is a dentist by profession, and was in active service with the Navy when the necessity for removing' the deadened teeth arose, and no other dentists being available he was compelled to make the extractions himself. He lost six weeks from his studies at the Loyola University Dental School, which had to be made up at the summer school sessions.

Defendants have made no complaint regarding the amount allowed plaintiff, and considering the seriousness of his injuries, his stay in the hospital, the accompanying pain and suffering, the loss of teeth, and the scars and disfigurement, we do not believe that the amount awarded is excessive.

Plaintiff in his answer to this appeal prayed that the $1,000 credit be disallowed, but the answer was filed only the day before the matter was argued and submitted to us, and for the reasons stated in our opinion this day handed down in the case of Joseph S. Middleton, plaintiff’s answer to the appeal came too late and we are powerless to give it any consideration.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.


author: HARDY, Judge.

text:
    CURRY v. CURRY (JONES, Intervener).
    No. 7128.
    Court of Appeal of Louisiana, Second Circuit.
    March 8, 1948.
    James W. Jones, Jr., of Natchitoches, for appellant.
    John L. Curry, of Natchitoches, in pro. per.
   HARDY, Judge.

This is a suit originally instituted by plaintiff to secure a separation from bed and board and to dissolve the community existing between herself and her husband, defendant. The prayer for relief also comprehended sequestration of an automobile, fixing of alimony, etc.

Plaintiff’s original petition was filed on February 3, 1947, and a rule against defendant was fixed for February 10th, subsequently continued to February 13th, and on the latter date continued indefinitely.

On April 8, 1947, James W. Jones, Jr., resigned as counsel for plaintiff and filed a petition of intervention praying for a rule upon both plaintiff and defendant directing them to show cause why intervener should not recover the sum of $150 as attorney’s fees, less a credit of $15 acknowledged to have been paid. The petition of intervention also prayed for judgment in the sum of $150, less the said credit, and the recognition of intervener’s lien and privilege on the automobile originally sequestered in these proceedings.

The rule invoked by intervener was fixed and called for hearing on April 24, 1947, at which time both intervener and defendant appeared in propria persona. Without hearing, and on the face of the papers, the Judge of the District Court ordered the rule dismissed at intervener’s cost, from which ruling, and judgment pursuant thereto, in-tervener brings this appeal.

Intervener’s petition itself shows that after filing of this suit for separation from bed and board the same was abandoned at the request of plaintiff, who was intervener’s client; that thereafter intervener’s said client requested the re-urging of her suit, in consequence whereof intervener prepared supplemental proceedings which, however, were never filed; that plaintiff employed other counsel and procured a judgment of divorce against her husband, defendant in this suit. Whereupon intervener formally withdrew as counsel for plaintiff and entered these proceedings by way of intervention, in which he sought the issuance of the rule above detailed.

Intervener-appellant complains that he should have been permitted to introduce evidence for the purpose of supporting the allegations of his petition of intervention, including the substantiation of his claim for attorney’s fees, and that he is entitled to a lien and privilege on the sequestered automobile to the extent of his fees.

We must confess that the present proceeding is without parallel in our experience. No issue was joined in the suit which is before us as between plaintiff and defendant, and we know of no precedent for the character of action which , is being urged by intervener.

We concede that the sometimes inconsistent demands made upon attorneys at law by parties to separation and divorce proceedings who are uncertain of their own minds are exceedingly wearing upon members of the bar. Nonetheless, it is the right of litigants to hold in abeyance or to dismiss litigation which they have initiated, and, particularly, it is the undeniable right of women to change their minds.

Conceding the harassment and inconvenience suffered by intervener, we still fail to find any basis upon which his right ■ to proceed in the manner attempted might be sustained.

And while we know that our brethren of the bar on many occasions devoutly desire the protection which would be accorded by the recognition of attorney’s fees in the light of preferred claims constituting liens, as yet there is no legislative authority for súch a contention.

We know of no law, nor have we been cited to any by zealous intervener, which would justify the granting of his claims in this proceeding.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.