author: MOISE, Justice.

text:
    214 La. 1046
    TENNANT v. RUSSELL et al.
    No. 38555.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    Rehearing Denied March 21, 1949.
    Porteous & Johnson, of New Orleans, for defendant and appellant.
    Charles J. Rivet, of New Orleans, for plaintiff and appellee.
   MOISE, Justice.

Sidney L. Russell is appealing from a judgment of the district court overruling certain exceptions, granting preliminary injunctions, and ordering an inventory of the property belonging to the community of acquets and gains heretofore existing between the defendants.

The petitioner alleges that by reason of a contract entered into with Mrs. Katherine O’Hara Russell, he is an owner of •the property of the community in common with Mrs. Russell and her husband; that Mrs. Russell obtained a judicial separation from her husband, and a partition of the community property; that in the separation suit, the court ordered an inventory made of the community but none was taken; that the wife was induced by her husband to go into a pretended partition; that the husband failed to disclose the mass of the community; that he concealed the truth and defrauded her of her property rights, and for these reasons, or, in the alternative, for lesion, the pretended partition should be nullified. Plaintiff prayed that the notarial partition of April 18, 1946 be declared null; that his interest in -the community be fixed, a new partition ordered, and an inventory of all of the ■community of acquets and gains heretofore existing between defendants be taken; and that restraining orders issue, followed by a temporary and, in due course, a permanent injunction.

To this action Mr. Russell filed an exception of no right or cause of action. He prayed that, as against him, the suit be •dismissed and that the temporary restrain- ■ ing oi'der be recalled and set aside. His •contention is that he is not a party to the contract made between plaintiff and Mrs. Russell; that there is no privity of contract -and whatever rights plaintiff Ras are against Mrs. Russell alone.

Upon hearing, the district court overruled the exception and issued an order for a preliminary injunction and for an inventory of the community property. Mr. Russell filed a motion for a suspensive appeal from the court’s ruling. See Tennant v. Russell, 210 La. 1092, 29 So.2d 167. The appeal was granted and the matter -is now before us on the merits. Mrs. RuSsell did not appeal and, therefore, no reference will be made to her pleadings.

The controversial agreement reads as follows:

“New Orleans, Louisiana
“July 23, 1946.
“Whereas, I, Mrs. Katherine O’Hara Russell, wife of Sidney L. Russell, have heretofore filed suit in the Civil District Court for the Parish of Orleans, State of Louisiana, in proceedings No. 161,699 in which I was successful in having a judgment of separation from bed' and board rendered in my favor and against Sidney L. Russell and
“Whereas, the said judgment decreed that the community of acquets and gains previously existing between myself and Sidney L. Russell should be dissolved and
“Whereas, in confirmation of the judgment ordering the partition of the community property, a partition agreement was entered into before F. C. Johnson, Notary Public, on April 18, 1946 and whereas I have reason to believe that the said partition was in fraud of my rights and that properties owned by the community were not included and that the said Sidney L. Russell did not make a full and complete disclosure of the community’s true worth and that he did wilfully and fraudulently deprive me -of information that should-have been made available to me before any settlement or partition was made, and, where- ■ as in the • said partition eight (8) certain promissory notes each in the sum of $5,-000.00, which said notes were payable to the order of Sidney L. Russell and were not secured by mortgage or pledge of any kind were given in the said settlement, and
“Whereas, it is now my desire to set aside the said partition entered into before F. C. Johnson, Notary Public, under date, of April 18, 1946,
“Now, therefore, I do hereby employ Samuel J. Tennant, Jr., Attorney-at-law as my attorney to set aside the said partition or to effect a further compromise and settlement of the community existing between myself and Sidney L. ■ Russell so that I may share in properties, both real and personal, that were not taken into consideration at the time the partition was made and I agree to pay to Samuel J. Tennant, Jr. one-fourth (j4) of any monies, funds or property which he may recover for me.
“It is understood that the said Samuel J. Tennant, Jr. is to be paid no- fee whatever, save and except the one-fourth (J4) of the monies or property which he may recover for me, including a one-fourth (j4) interest in new notes to be secured by a mortgage, or by cash or property to be given in lieu of the said eight (8) unsecured promissory notes above described and in the event that he is unsuccessful that I am to be charged no fee of any kind. It is further understood and agreed that the one-fourth (%) interest going to the said Samuel J. Tennant, Jr. is not to be on any of the property, funds or cash that came to me under the partition before F. C. Johnson, Notary Public, dated April 18, 1946, except on the eight (8) unsecured promissory notes in the sum of $5,000.09 each, above referred to. In other words, the said Samuel J. Tennant, -Jr. is only to share in any property or monies which he may recover over and above that por-., tion which came to- me under the partition, plus an .interest in new mortgage or secured notes or properties or money given in lieu thereof. ■,
“I agree that the employment of the' said Samuel J. Tennant, Jr. is irrevocable and he is hereby vested with a one-fourth (%) interest in my claim. It is understood, however, that he is not-to make any settlement without my written consent.
“(Signed) Mrs.' Katherine'O’Hara
Russell
“I accept the above employment under the terms and conditions set 'forth herein.
“(Signed) Samuel J. Tenriant, Jr.”

In testing the rights of the parties, we' must not set up any theoretical standards but the case must be judged by the concrete provisions imposed by the contract. Tennant contends 'that by virtue of this contract he has a vested right and that" he is a co-owner in the community property with Mrs. Russell to'the extént of a one-fourth interest or a one-eighth in the full community and -that as such owner-in com'mo-n; with' Mrs. Russell and her husband, he is entitled to invoke all of the remedies prayed for in his petition.

A -right is vested when “the right to enjoyment, present or prospective, has - become the property of some particular person or persons as a, present interest. The right must be absolute, complete, and unconditional, independent of a contingency, and a mere expectancy of future benefit, or a contingent interest in property ,* * * does not constitute; a, vested right.” 16 C.J.S., Constitutional Law, § 215, page 642. To say therefore, from the factual set up herein, that the plaintiff has a vested right or is an owner in common of the comm'únity party in question on-the contract of employment based on a contingency, is a legal syllogism that does not syllogize. Mr. Tennant is a member of the Bar in good standing. - He is actively engaged in the practice of his profession. Mrs. Russell evidently felt that she did not get all that she.should have received in the partition of April 18, 1946. She thereupon procured the services of Mr. Tennant. . The contract was one of employment and was between attorney and client. The fee was fixed in the amount therein stated. It was based on the contingency of a recovery. If there was no recovery there was to be no, fee and Mr. Tennant was- to- represent in that contract in the manner agreed upon.

It is stated -in Article 22 of the petition that Mrs. Russell had discontinued proceedings filed by Mr. Te.nnant in her behalf .to set aside the notarial partition. In an analysis of the petition and the -contract nowhere -is it shown or pleaded that it was agreed between the parti.es that neither the attorney no-r the-client should have the right, without written consent of the other, -to discontinue the suit. The presumption of law is that this provision was. intentionally left out of the contract. The maxim is “affirmatio unius exclusio est alterius.”

By reason of Article 491 of the Code of Practice, Mrs. Russell, as a matter -of express law, could at any time discontinue ■the suit before final judgment, upon payment of the co-sts. The plaintiff is assuming that by virtue of his contract, he can substitute himself for Mrs. Russell and have all these, rights and causes of action the ■same as a partner .in community when his. right claimed in the last analysis is based solely on an expectancy or a contingency. Again, the contract is silent on a stipulation-that he can place himself in Mrs. Russell’s shoes when the -contract provides that the suit must be filed for her and on her behalf. This is an assumption of a fight not conferred by the contract.

.The Succession of Carbajal, 139 La. 481, 71 So. 774, 775, should be of great weight in determining the issue herein for there -the court said ■“ * * * a contract for a contingent fee gave an attorney no interest in the subjecLmattej- of the litigation to which .the contract might relate, but entitled him only, to a privilege upon the judgment, if and when obtained, and' that, notwithstanding such contract, it was within the power of the -client to discon-tinué'the suit at will, leaving to the'attorney his right of action on quantum meruit' for services rendered.” ’■ (Italics mine.)

For the above reasons, the exception of no right or cause of action is maintained, the preliminary injunctions are annulled and set aside, the order to take an inventory is vacated and the suit is dismissed at plaintiff’s costs.

O’NIELL, C. J., does not take part.


source: Caselaw Access Project

author: PONDER, Justice.

license: Public Domain

text:
    214 La. 1055
    STATE v. COMMISSO. In re COMMISSO.
    No. 39287.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    Rehearing Denied March 21, 1949.
    Lloyd'C. Hoffmann, of New Orleans, for relator.
    Herve Racivitch, Dist. Atty. and Guy Johnson, 1st Asst; Dist. Atty., both of New Orleans, for respondent.
   PONDER, Justice.

The defendant was charged in an affidavit in the City of New Orleans on November 8, 1948 with being a fugitive from justice from the States of Ohio and Tennessee. tie was arrested and placed in the parish prison. Shortly thereafter, the Governor of Tennessee made requisition to the Governor of Louisianá and a warrant was issued for the arrest and delivery of the fugitive to the Tennessee authorities. The defendant refused to return to Tennessee and he was granted a hearing in the Criminal District Court of Orleans Parish on November 29, 1948. At this hearing -the district attorney sought to introduce into evidence the warrant of the governor of this state and certified copies of the requisition papers, the originals of which had been filed with the governor of this state;. On objection of counsel for the defendant, the requisition papers and the warrant were refused in evidence because the indictment accompanying the requisition papers had not been properly certified and authenticated as required by law. The court instructed the Tennessee agents to secure the correction of the requisition papers and return for a hearing to be held on December 8th. ‘ On December ’ 6th, prior to the date fixed-for the hearing, the district attorney nol-prossed the affidavit and a new affidavit charging the defendant with being a fugitive from justice was executed. The district judge granted an order authorizing the defendant to be released from prison on bond in the amount of $5,000.00 which the defendant was unable to make and he is now incarcerated in the parish prison. On December 13th, the defendant applied to this Court for a writ of habeas corpus which was denied on the ground that this Court would not entertain the application unless the defendant had exhausted his remedy in the lower court as required by Article 114 of the Code of Criminal Procedure. See State of Louisiana v. James V. Commisso, bearing docket No. 39,287 of this Court. On January 3rd, thereafter, the defendant applied to the Criminal District Court for a writ of habe-as corpus. The application was denied and the defendant has invoked our supervisory jurisdiction. Writs were granted, a rule nisi was issued and the matter is now submitted for our determination. .

The relator concedes that the State has a right under the provisions of Article 168 of the Code of Criminal Procedure to detain him for a period of thirty days. He concedes that when a proper demand has been made that he may be held for a period of six months. However, he. contends that no proper demand has been made as required by the federal laws and the laws of this state and that the lower court had no authority to' imprison him after the expiration of the thirty day period.

It appears that there are two issues involved in this controversy. First, whether a proper demand has been made and, second, whether or not a fugitive can be held to await extradition for a period exceeding thirty days by executing subsequent affidavits.

Under the provisions of Article 168 of the 'Code of Criminal Procedure, the State may detain a person accused of being a fugitive from justice for thirty days to await extradition and if no extradition proceedings are begun within that period of time the accused must be discharged.

Under the provisions of Article 160 of the Code of Criminal Procedure, the govr ernor of this state cannot issue a warrant for the arrest and return of the fugitive-unless the requisition be accompanied by ai duly certified copy of the sworn statement of the complainant, of a statement of the facts of the prosecuting attorney, and of" the indictment pending in the demanding' state.

Under the provisions of the federal statute, R.S. § 5278, 18 U.S.C.A. § 662, [now § 3182], the demanding state must produce a copy of the indictment pending in that-state certified as authentic by the governor of the state when he demands the return of the fugitive.

Under the provisions of Article 166 of’ the Code of Criminal Procedure a fugitive-from justice may refuse to return to the demanding state in which event he is granted a hearing. If upon that hearing it shall appear that a copy of the indictment accompanying the requisition papers of the-demanding state has not been certified as authentic by the governor of the demanding state, the accused must be discharged without delay. Article 167, Code of Criminal' Procedure.

In the hearing of this habea-s corpus-proceeding in the lower court the requisition papers and the warrant of the govern- or of this state were not admitted in evidence because the copy of the indictment accompanying the requisition papers hadi not- been certified as authentic by the governor of the demanding state.

The federal statutes and our statutes,, requiring the copy of the indictment to be-duly certified and authenticated, are in accord. The very basis upon which a requisition is founded is a pending charge against a fugitive in the demanding state and the basis upon which the governor of this state issues his warrant is that an accused has fled from a state where a charge is now pending against him.

We pointed out in the case of State ex rel. Covington v. Hughes, 157 La. 652, 102 So. 824, that a requisition accompanied by an indictment that had not been certified by the governor of the demanding state was. void and could not form the basis for an extradition proceeding. We cited therein ■a federal authority to support that - pronouncement.

A certified copy of the indictment must accompany the requisition of the governor of the demanding state in order to justify an order for his arrest and an in•dictment not certified by the governor of the demanding state cannot be considered. 22 Am.Juris, p. 277, par. 40; In re Reggel, 114 U.S 642, 5 S.Ct. 1148, 29 L.Ed. 250; Kurtz v. State, 22 Fla. 36, 1 Am.St.Rep. 173; State ex rel. Treseder v. Remann, 165 Wash. 92, 4 P.2d 866, 78 A.L.R. 412; State of Tennessee v. Jackson, D.C., 36 F. 258, 1 L.R.A. 370, 371; Ex parte Hart, 4 Cir., 63 F. 249, 28 L.R.A. 801, 804.

The executive making the demand must furnish evidence of the charge upon which the demand is made. He cannot make the ■charge. The requisition,'though indispensable, if not accompanied by the proper -papers, has no legal force. Scott on Interstate Rendition, p. 90, par. 64 & p. 94, par. 69.

No proper demand has been made 'for the return of the accused by the demanding state. Consequently, extradition lias not begun. The authorities of this state are not warranted in holding the accused beyond the thirty day period when no extradition proceedings have begun. The :state cannot hold the accused by successive affidavits for any time beyond the thirty day period to await extradition.

The district attorney has cited a number <of cases where corrections were allowed :in extradition proceedings, but we do not •find that any of these cases are in point ^because none of the authorities cited deal with the certification of the indictment up■on which the requisition is founded.

The federal and state statutes both set -forth the essential requirements for the demand, one of which is that the indictment must be certified by the governor of the (demanding state.

The district attorney in his brief •states that proper requisition papers have now been delivered to the governor of this ■state but that the Tennessee authorities have not taken further action on account of the granting of the writs herein. He evidently overlooks the fact that we only issued a rule in this case and did not execute a stay order. There is nothing to prevent the authorities from proceeding under a warrant of the governor of this state issued under a -proper demand. We are merely passing on the issues presented to us.

For the reasons assigned, the judgment of the lower court is reversed and set aside and the defendant is ordered discharged.

O’NIELL, C. J., does not take part.

HAWTHORNE and McCABEB, JJ., concur in the decree.


author: FOURNET, Justice.

text:
    214 La. 1062
    In re STATE in Interest of GOODWIN.
    No. 39294.
    Supreme Court of Louisiana.
    March 21, 1949.

      J. Bennett Johnston, of Shreveport, for appellant.
    Edwin L. Blewer, District Attorney, of Shreveport, for appellee.
   FOURNET, Justice.

Clydell Belgard and her husband, James E. Goodwin, alleging that on Sunday, November 14, 1948, while she was on a temporary leave from the Juvenile Detention Home of Caddo Parish, they were married by a Justice of the Peace in Bossier City, Louisiana, • sought her release in this proceeding under the holding of this court in the case of State v. Priest, 210 La. 389, 27 So.2d 173. She is appealing from the refusal of the trial judge to grant the relief sought.

Clydell, a girl of 14 who, by appearance, could have passed for 16 or 17, was taken into custody by the probation officer of the Juvenile Court of Caddo Parish on November 9, 1948, 'on a charge of having committed an act or acts of' juvenile delinquency “by being truant from school,” and, following a preliminary hearing on November 12, was ordered held pending further investigation. She was released in the custody of a friend, Mrs. Margaret Tibbetts, on Sunday, November 14, upon the friend’s representation that she would be returned to the detention home later in the day after attending church. That afternoon she was married in' Bossier-City by a Justice of the Peace after she and James E. Goodwin had obtained a license upon their representation that she was 16 and' after her mother had confirmed the fact that she had given them her consent. They returned to Shreveport immediately after the ceremony and lived together as man and' wife in the ' home of mutual friends before she reported back to the detention home. Two days later they instituted these proceedings for her release under the authority of the Priest case. The juvenile judge, although of the opinion "that a married minor could not be detained for truancy under the Priest holding, overruled the motion and proceeded .with the hearing in an effort to determine whether it was to the best interest of the subject child that she be given the care and protection of the state.

At this hearing it developed that Clydell is a good student, of good moral character, and a regular church attendant. It was shown, however, that for a number of years she was cared for by her grandmother who lived in Sikes, Louisiana, near Winnfield, due to the fact that her father had died of blood-poisoning in 1940 and her mother, giving birth to a child the next day, was confined to a sanitarium for some 14 months 'thereafter. This arrangement continued even after her mother remarried in 1943, Clydell only staying with her mother during the summer months. During these visits with' her mother, however, she found she was unable to get along with her stepfather (even voluntarily complaining to the juvenile authorities, that he was molesting her, though this, proved to be groundless), and, with her mother’s' consent, she went to live in the Genevieve' Home in Shreveport. Not being satisfied there, she left in August of 1948, and, through arrangements made by her mother, moved into the home of the Rev. D. J. Vasco and his wife, the minister of the church to which Clydell and her mother belonged and people of unimpeachable character who were life-long friends of her mother and father. This arrangement was that Clydell would help Mrs. Tibbetts and Mrs. Vasco about the house in exchange for her supper and a place to-sleep, the mother furnishing her with clothes; school, breakfast, and lunch money; spending money; and other small incidentals. The only intimation in the record that this was not a proper home for. the child is the. statement of the probation officer that “there was not sufficient room in the home where she was staying.” She was living in.this home when, on Friday, November 5, 1948, she was given permission by one of her teachers' at' the Fair Park High School to leave' because she felt ill arid had a slight fever. Mrs. Vasco immediately took her to her mother’s home, where she was’ given medicine and kept in bed. On Monday and Tuesday, still feeling unwell, she did not return to school. It was' while she was absent on Monday that she called the principal of her school advising him of her intention to marry. The principal admonished her about getting married at'her age and informed her that until she did it was compulsory that she attend school. On Tuesday, when she did pot return to school, he reported the matter of her absence as required by law. A charge was made by the probation officer that she was a truant and she was taken into custody that same afternoon. On the following Sunday afternoon she married James E. Goodwin, a young man of 20 who was a resident of Shreveport, a high school graduate, and, at the time, employed by the American News Company. This is the marriage upon which the motion fór Clydell’s release and the dismissal of the truancy charge is based.

The judge, after a hearing during which all of the above stated facts were brought to light, found as a fact that Clydell was not a delinquent on account of truancy. He concluded, however, that this evidence disclosed she was, at the time the charge was made, a neglected child in that she was without proper guardianship and, as such, in need of the care and protection of the state in order that she might be prevented from assuming the duties and responsibilities of married life. He therefore ordered her committed for an indefinite period to the State Industrial School for Girls at Alexandria, Louisiana. He was also of the opinion that inasmuch as the subject child in the Priest case was not actually in the custody of the court at the time of her marriage, as was Clydell, the case was not controlling-

While this marriage: was consummated, in violation of Article 92 of the Revised Civil Code, as amended .by, Act No. 140 of 1934, which prohibits ministers and magistrates from marrying any female under the 'age of 16, and also in- violation of Article 99, as amended by Act No. 312 of 1948, which fixes a waiting period of 72 hoprs after the issuance of the license during which such ministers and magistrates are prohibited from performing a marriage, there being no other impediment to the marriage, it is, nevertheless, a valid marriage under the jurisprudence of this state. State v. Golden, 210 La. 347, 26 So. 2d 837; State v. Priest, supra. The redactors of our code and the legislature in amending these articles did not provide for the nullity of the marriages performed in violation thereof, but, instead, provided in the former case for the removal from office of the magistrate performing a ceremony in violation thereof arid for the suspension forever of the minister’s right to-perform such ceremonies, and, in the latter case, for the revocation of the right to perform a marriage for one year. Consequently, Clydell is irrevocably emancipated by this marriage as a matter, of right. Articles 379 and 383. And although until she reaches the age of 18 she is not relieved of all of the disabilities that attach to minority by this emancipation, she- is relieved of parental control and, as was held in, the Priest case, is no longer amenable to the compulsory, school attendance law of this state. Furthermore, having acquired the status of a wife, it is not only her right but also her duty to live with her husband at their matrimonial domicile and to follow him wherever he chooses to reside. Article 120.

It is our opinion, therefore, that inasmuch as Clydell Belgard’s marriage to James E. Goodwin is valid, of necessity, the juvenile court is without authority to prevent her from assuming the duties and. responsibilties of a .married woman.

While we view with sympathy the trial judge’s deep convictions of the tragedy inherent in the marriage of girls of tender years and his skepticism of any ultimate good resulting therefrom, we recognize the basic fact that under our system of •government the matter of fixing the public policy of' this state' with respect to the age at which people may or may not marry as well as fixing the status of marriages solemnized in violation thereof lies exclusively within the province of the legislative branch.

For the reasons assigned, the judgment appealed from is annulled and set aside and it is now ordered that the relator Cly-dell Belgard Goodwin be released.

O’NEILL, C. J., takes no part.


text:
    214 La. 1069
    HAUSLER v. NUCCIO et al.
    No. 38801.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    Rehearing Denied March 21, 1949.
    Lenfant & Villere, Howard W. Lenfant and Francis P. Bijrns, all of New Orleans, for plaintiff-appellee.
    Baldwin, Haspel & Molony and Emile A. Wagner, Jr., all of New Orleans, for defendant-appellant.
   FOURNET, Justice.

The plaintiff, Mrs. Mildred K. Hausler, claiming that there was an outstanding title in the City of New Orleans to nearly half of Lot 22 of Square 18 of the Edgewood Park Subdivision in New Orleans which she acquired from Luke J. Nuccio through the Pelican Homestead Association, seeks to have the entire transaction set a-side, including the $2,000 vendor’s lien and special mortgage note given by her in favor of the homestead, and to recover judgment against the homestead for payments made to it in connection with the transaction and against Nuccio for the amount received by him on the purchase price, plus the amount expended by her in good faith in improving the property.

The allegations of the petition are, substantially, that the plaintiff entered into an agreement with Luke J. Nuccio on April 17, 1946, to purchase the property in question for $3,500 in cash, provided she could secure a homestead loan; that through the ■assistance and intervention of the real estate broker who was handling the sale she applied to the defendant homestead for a loan and in order to qualify to receive such loan she made application for membership in the association, agreeing to subscribe for 20 mortgage loan monthly reduction shares having a par value of $100 each, the association agreeing to ultimately make her a loan of $2,000 at 5% interest, payable in accordance with the provisions of its charter and by-laws, one of the conditions of the transaction being that the homestead association would have the property surveyed -and the title thereto' examined by their own attorney and a surveyor of their choice at plaintiff’s expense; that in purchasing the property she relied on the representation of the attorney. of the association that the title was good when in fact 14' 7%" of the full depth thereof abutting on Peoples Avenue is vested in the City of New Orleans; that she became apprised of this only after she had moved into the building on the property and was in the process of making extensive repairs.

The defendants' pleaded in limine exceptions of vagueness, misjoinder of parties, ■and of no cause and no right of action. After these exceptions had been overruled and the plaintiff was ordered to amend, both defendants filed answers denying the plaintiff’s, right to the relief sought, the association contending it was not plaintiff’s vendor, she having purchased the property from Nuccio with the association acting as nothing more than an instrumentality for lending her the $2,000 in order that she might be able to pay the purchase price demanded by -Nuccio; that it was only in consummating the sale and in securing the loan that Nuccio. transferred the property to it and it, in turn, transferred the property to the plaintiff. without warranty, but substituting and subrogating her to .all actions in warranty that it had against all previous owners; and that their attorney in examining the title to the property and approving the same acted solely for its own account and .not for the account of the plaintiff. In the alternative, the homestead contends the City of New Orleans has no right or title to the property and is not claiming any interest therein. Nuccio was called in warranty.

There was judgment in the lower court in favor of the plaintiff as prayed for, as well as judgment in favor of the Pelican Homestead Association on its call in warranty against Luke J. Nuccio in the sum of $2,000, with interest and costs. The homestead association prosecutes this appeal.

The appellant is réurging' here its exceptions of no right and no cause of action. The former is based'on the contention that the plaintiff, as a married woman, was without right to maintain an action involving community property, arguing that although there is contained a stipulation in’ the deed that the property is being purchased with the plaintiff’s personal and paraphernal funds, it also reveals the fact that at the time the plaintiff acquired the property she was married to Leo J. Haus-ler and there is nothing to show> either in the deed or in the petition, that the funds were her separate and paraphernal funds, hence her action must be dismissed. The latter exception is based on the assumption that the plaintiff’s case is grounded solely on the supposition that her title to this property is defective because of the decision of the Court of Appeal for the Parish of Orleans in the case of Faunce v. City of New Orleans, 148 So. 57.

The first exception is clearly without merit. While it is true the petition contains the statement that the suit is being brought by “Mrs. Mildred Keaton, widow by first marriage of Thomas Parisy, and wife by second marriage of Leo A. Hausler,” this allegation must be considered together with those stipulations' contained in the act of 'sale and mortgage from the association to the plaintiff — which act is annexed to and made a part of the petition ánd the provisions and stipulations of which must, for the purpose of disposing of this exception, be accepted as true— wherein it is declared that “the herein con-' vayed property is being purchased with her separate cmd paraphernal funds” (Italics ours.)

The other exception is equally without merit for the allegations of the petition do not support the conclusions of the pleader that this suit is based on the Faunce case. The petition contains the specific allegation that the plaintiff was 'informed by the attorney for the homestead on July 11, 1946, while in the process of making extensive repairs on the property, that there was a serious and important defect in the title to the property which indicated that approximately half of the lot in width, from front to rear, was located in Peoples Avenue, a publicly dedicated street of the City of New, Orleans, and, in the next paragraph, she alleges she subsequently learned that the judgment rendered in the case of Faunce v. City of New Orleans held that Peoples Avenue was a public street and that the eastern tier of lots fronting on this avenue and forming a part of the Edgewood Park Subdivision, of- which .tier the plaintiff’s lot forms a part, lies within the limits of. this public street to a. depth of approximately 14' 7%".

The association’s contention that the transaction whereby it purchased this property from Nuccio and resold it to the plaintiff was not a sale of the property, but, instead, a loan, is untenable. Section 9 of Act No. 280 of 1916, regulating building and loan associations, provides that "such contract and agreement shall not be considered or dealt. with as a toan, but as a purchase .or acquisition by the association, and then as a sale by the association to such member” (this identical provision is to be found in Section SO of Act No. 140 of 1932, being the act codifying the statutes of this State with respect to building and loan associations). In interpreting this provision this court, in the case of Mayre v. Pierson, 171 La. 1077, 133 So. 163, 165, declared that “the sale and resale to and from a building and loan association quoad the parties to the transaction, or to parties claiming under them, must be considered ■and dealt with as a sale and not as a loan, so as to preserve in favor of the association a vendor’s lien and privilege on the property conveyed and reconveyed.” To the same effect are the following cases: American Homestead Co. v. Karstendiek, 111 La. 884, 35 So. 964; Holloman v. Alexandria & Pineville Building & Loan Ass’n, 137 La. 970, 69 So. 764; Hutts v. Crowley Building & Loan Ass’n, 146 La. 85, 83 So. 417; Barnes v. Thompson, 154 La. 1036, 98 So. 657; Liquidators of Prudential Savings & Homestead Society v. Langermann, 156 La. 76, 100 So. 55. (Italics and brackets ours.)

Since the plaintiff deraigned her title from one Dennis Sheen, who with Gustave Seeghers, joined in an act before a notary in 1891 formally dedicating Peoples Avenue and fixing the boundaries thereof in accordance with a survey made by Grand-jean in 1886 at the behest of Sheen and the New Orleans & Northeastern Railroad Company, we think a brief historical statement and background of the events in connection therewith, as reflected by the decision in the Faunce case and in the case under consideration, is necessary to properly understand and dispose of the issues here presented.

It appears that in 1845 the large tract of land comprising the Hopkins plantation, lying in what is known as the Gentilly section of New Orleans, was purchased by Charles W. Hopkins. At that time the plantation was divided into two portions by Gentilly road, which ran along the banks of Bayou Sauvage in an easterly and westerly direction. In 1872 the city dug a drainage canal, known as Peoples or Peoples Avenue Canal, on this property. This canal, crossing the bayou and Gen-tilly road approximately at right angles, had the effect of further dividing the tract into four unequal sections. At that time there was in existence a map made by one D’Hemecourt showing that the land on which this drainage canal was dug was a public street, although there had apparently been no official dedication of this strip to public use by the private owners. From this time on, however, the city treated the property as though it belonged to the public, even authorizing the New Orleans & Northeastern Railroad Company in 1881 to construct its tracks thereon along the canal and to deepen Peoples Avenue canal and to use the earth so removed as the foundation for its tracks, all with the apparent acquiescence of the private owners.

When Hopkins died the tract was divided into S parts in order that a partition might be effected among the heirs in accordance with a plan made for that purpose by John F. Braun on May 15, 1886, Dennis Sheen, the common ancestor in title of both Faunce and Mrs. Hausler, purchasing Lots 2, 3, and 4 as shown on this plan. The drainage canal does not appear thereon nor does the plan show the width in figures of the right of way as dedicated by the sale of the property to Sheen by the Hopkins heirs, there being merely an indication that there is an open strip running in a northerly and southerly direction across the land which separates Lots 1 and 3 and Lots 2 and 4. For this reason Sheen and the railroad company, in 1886, employed George H. Grandjean, civil engineer and deputy city surveyor, to make a detailed survey and sketch of the property purchased by' Sheen under the Braun plan for the purpose of fixing the exact lines, boundaries, and width of the right-of-way of the railroad. Sheen subsequently sold Lot No. 3 to Gustav Seeger and, together with Seeger, appeared before a notary public in 1891 for the purpose of formally fixing the boundaries of the right-of-way of the railroad as surveyed and fixed by the Gran'djean survey, Grandjean’-s sketch thereof being attached to the act so that it might be perpetuated. The notorial act with attached sketch was duly recorded in the conveyance office. This Grandjean plan shows that Peoples Avenue is 200' wide, that along its east side are the tracks of the railroad company, that near the center is the drainage canal, which is 60' wide, and that along the edge of this canal is an open space between the bank of the canal and the eastern boundary of Lot No'. 2.

In 1909 Sheen sold Lot No. 2 to the Edge-wood Improvement Association, through which association Fáunce claimed title, as does Nuccio in this case. In the act of sale to the improvement association reference is made to the Grandjean survey and sketch and Lot No. 2 was sold as designated on that plan; also, contained in the act is a reference to another plan made by Warrén B. Reed on April 29, 1909, which plan makes no reference to Peoples Avenue and shows only what seems to be a railroad right-of-way and a canal, omitting the land lying on the west bank of the canal between the water’s edge and the boundary of Lot No. 2. When the Edge-wood Improvement Association laid out and subdivided Lot No. 2 as Edgewood Park, it showed on its plan alongside the canal a narrow' strip of land that it designated • as Primrose Walk. This strip is not wide enough to accommodate the original dimensions of Peoples Avenue as ■shown on the Grandjean plan. The association sold the lot in controversy in this suit * * * Lot No. 22 of Square 18 of Edgewood Park Subdivision * * * to Grover Lehman Co. in 1918, from which company Luke J. Nuccio purchased it on July 31, 1923. In 1927, at the request of a homestead association on Nuccio’s behalf, Gilbert & Kelly drew a sketch of this lot, using as the basis thereof the Reed survey of 1909. This Gilbert & Kelly survey is the same one that was used to sketch plaintiff’s lot at the time she took title thereto.

In support of her allegation that title to almost half of the lot sold her by Nuccio through the homestead was outstanding, the plaintiff offered the testimony of Harry E. Sutch who stated that at the time of the Faunce decision he surveyed the Faunce lot; that following the decision he, as the city surveyor, was ordered to survey the entire length of Peoples Avenue; and that in doing so he platted it. This plat is in the record and shows that Peoples Avenue as it was originally platted and surveyed by Grandjean in 1886 runs almost through the center of plaintiff’s lot. Sutch pointed out just where the

Reed survey projected this property into Peoples Avenue. He also pointed out that the purported survey made for the plaintiff at the time she purchased the lot was nothing more than a drawing or sketch of the Gilbert & Kelly survey of the property in 1929 that had been based on the erroneous Reed survey plat. He also stated that the property involved in this litigation is in the same category as the Faunce property since the Grandjean line runs through the center of all of the lots forming the eastern tier of the Edgewood Park Subdivision abutting on Peoples Avenue.

The attorney and notary representing the homestead in the transaction, and who is also the vice-president of the homestead association, testified that as he appreciates the Faunce decision, it is correct. In explaining his reason for failing to take the Faunce decision into consideration when running down the title he approved at the time plaintiff purchased Lot 22 he stated the decision was recorded in the name of Faunce and did not, therefore, show on the conveyance certificate in the name of Nuc-cio, but he gave no explanation of his failure in abstracting the Nuccio title, which was necessary before he could examine the same and render a legal opinion as to its merchantability, to take into consideration the notarial act of Sheen and Seeger in 1891 adopting the Grandjean survey, which was recorded and formed a part of the abstract of the Sheen title as it eventually passed to Nuccio. Nor did the defendant homestead offer any testimony to show why the property had not actually been surveyed in accordance with the Grandjean plat, particularly since the attorney admitted that had it been so surveyed the defect in the title would have been apparent, for it showed up when he had the adjoining lot owned by Nuccio surveyed in connection with a later sale, which caused him to run into the Faunce decision.

Clearly, therefore, there is an outstanding title to that portion of plaintiff’s lot extending into Peoples Avenue; consequently, it is not necessary that she should have been actually evicted before bringing this suit for the recision of the sale. Articles 2452, 2500, 2501 of the Revised Civil Code; McDonold & Coon v. Vaughan, 14 La.Ann. 716; Hale v. City of New Orleans, 18 La.Ann. 321; De St. Romes v. City of New Orleans, 34 La.Ann. 1201; Robbins v. Martin, 43 La.Ann. 488, 9 So. 108; Bonvillain v. Bodenheimer, 117 La. 793, 42 So. 273; Kuhn v. Breard, 151 La. 546, 92 So. 52; Bickham v. Kelly, 162 La. 421, 110 So. 637; Tennent v. Caffery, 163 La. 976, 113 So. 167; Abney v. Levy, 169 La. 159, 124 So. 766; and Bologna Bros. v. Stephens, 206 La. 112, 18 So.2d 914. And since it appears from the evidence that this shortage will leave plaintiff with a lot approximately only 15' wide and with more than half of the house on the lot lying in Peoples Avenue and that she would not have purchased the property without that part from which she is evicted, she has the right to have the sale cancelled, [Article 2511 of the Revised Civil Code; Daquin v. Coiron, 3 La. 387; McCollom v. McCollom, 6 Rob. 506; Robbins v. Martin, supra; Jennings-Heywood Oil Syndicate v. Home Oil & Development Co., 113 La. 383, 37 So. 1], and to a restitution of the price, despite the stipulation by the association that the sale was without warranty, as the record affirmatively shows she was not aware at the time of the sale of the danger of the eviction. Article 2505 of the Revised Civil Code; Bowles v. Alfred, 5 La.Ann. 667; Sewall v. Roach, 5 La.Ann. 683; Bach v. Miller, 16 La.Ann. 44; New Orleans & Carrollton Railroad Co. v. Jourdain’s Heirs, 34 La.Ann. 648; Citizens’ Bank v. Freitag, 37 La.Ann. 271.

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

O’NIELL, C. J., does not take part.

MOISE, J., recused.


text:
    214 La. 1083
    HOLMES v. TRIGGS.
    No. 38929.
    Supreme Court of Louisiana.
    March 21, 1949.
    Waverly A. Henning, of Gretna, for plaintiff and appellant.
    Alvin F. Higgins, of Gretna, and Herman & Herman, of New Orleans, for defendant and appellee.
   MOISE, Justice.

The matters of substance alleged by petitioner are that he and the defendant were married on October 29, 1942; that defend^ant mislead him by declaring that she was not married at the time of the ceremony; that they lived together as man and wife until June 16, 1946, when he learned that his wife had been married to another, without being divorced.

The defendant answered by asserting that at the time of her marriage to the petitioner, she believed she was divorced fro-m her husband; that her previous marriage was known to him and at the time of the alleged bigamous marriage, she was not aware of any legal impediments; that during the time of their living together, certain property was acquired and she is entitled to a partition thereof or, in the alternative, she prays for a judgment in her favor for $850 representing contributions she made towards the acquisition of the property during the marriage.

The judgment of the district court was for an annulment of the marriage and for a partition of the property acquired during the time that the parties lived together as man and wife. Plaintiff appeals.

Both litigants seem to have acquiesced in that part of the judgment as to the annulment of the marriage. The contest, therefore, is on that part of the judgment which directs a partition of the property acquired while the parties lived together as man and wife.

The controlling element for a determination of the issue is one of fact. The object of every judicial investigation is the ascertainment of the truth. The evidence offered is the means by which that is effected. It variously adjusts itself to perform its task in most certain and direct ways. Some things to a district judge are self-evident, others will be proved by his senses; but there are other subj ects which address themselves to no palpable standard of truth but to human experiences. There are many things in the trial of a suit in a district court that are not susceptible of being taken down by the court stenographer but come under the observing eye of a district judge. The district judge has contact with the witnesses and observes their course of conduct, the manner of giving testimony, and he is in a better position to determine the credibility of the witnesses and to determine the proof of the fact's from the evidence, than ourselves. We have not the direct contact with the witnesses in person. We have only a paper record and, therefore, the credibility of the witnesses and the weight to be given the evidence is not reflected to the same extent and the same certainty of proof as in a summary by the district, judge. We have, therefore, established a rule of common sense that on all appeals based on a question of fact, the judgment of a district court will not be disturbed unless it is manifestly "erroneous.

To set aside the judgment in the instant case, the burden is on this Court to point out from the record that the judgment of the district court is manifestly erroneous.

The pertinent facts of record are that the defendant married Hayward Jones on June 25, 1940; and that they lived together a short time before she moved to Marrero. Jones “took up” with another woman soon thereafter, and the defendant swears that she called on him for the purpose of getting half of the furniture and that he told her “ * * * he couldn’t give me (her) half because he had got (gotten) married and his wife was going to have a baby.” (Parenthesis mine.) This statement is corroborated 'by the physical fact, to-wit, that the woman did have a baby. Jones thereafter went into the Armed Forces of the United States and Mercedes Triggs, the defendant did not receive any allotment from the Government as his legal wife but this child received an allotment. (The record is not clear whether the mother of the child received any allotment.)

As evidence of bad faith", the plaintiff points out that at the time the defendant married him, October 29, 1942, she married under her maiden name, Mercedes Triggs. If the court knows almost what every district judge knows, then the judges of this Court should have knowledge that in most all instances where a woman is divorced and there is forever a dissolution of the marriage ties, that woman does not know whether she is entitled to use her marriage name or whether she must revert to her maiden name. And SO', this fact of record can be given, two constructions: The one placed on it by the plaintiff and (2) the one evidently placed on it by the trial judge. " Good faith is always presumed and we can conclude with equal force that she used her maiden name in place of her marriage name “Jones” because she thought there had been a dissolution of her marriage with Jones. As further evidence of the so-called bad faith, attention is directed to defendant’s answers when under questioning relating to the time of taking out the license, concerning a former husband. The witness’ answer, considering the fact of her limitation in education, rings as clear as a bell. She said that she thought she was being asked about a “farmer” husband and answered the question the way she did because Jones was not a “farmer” but at the time she married him he was a mechanic. She likewise states that she had received a letter from her husband telling her that he had married again and that she could not locate'the whereabouts of this letter.. There was offered to the court a witness on her behalf, Rev. William Her, and the evidence is significant from the following question and answer:

“Q. Did she (meaning Mercedes Triggs) ever, on any occasion, show you any letters from her relatives? A. She showed me a letter from her husband saying — (interrupted * * *)
“Mr. Henning: I object to any testimony about what her husband told her, unless he knows it himself or was there.”

This objection was sustained. Of course, the foundation had not been properly established to offer the contents of the lost document and for that reason the objection to the evidence at that particular time was properly sustained. We concur in the correctness of the exclusion of the evidence.

Article 117 of the Revised Civil Code provides: “The marriage, which has been declared null, produces nevertheless its civil effects as it relates to the parties and their children, if it has been contracted in good faith.”

The district judge sounded the plummets of his heart in his reasons for judgment when he expressed his views thusly:

“ * * * when it comes to the question as to whether the defendant was in good faith when she entered into the said marriage, the Court is of the opinion that she was and did act in good faith, and I base my opinion from observing the manner in which the defendant acted while on the stand. As a witness she reminded me of one of those real downright plantation negroes easily lead to believe anything one tells them, good natured in her language while testifying; no display of vindictiveness or acrimony whatsoever on her part; 5(S

On the record as made up, we canr not say with good conscience that the conclusion reached by the district judge was manifestly erroneous.

Judgment affirmed at plaintiff’s costs.

McCALEB, J concurs in the decree.

O’NIELL, C. J., takes no part. •


author: HAMITER, Justice.

text:
    214 La. 1090
    SCOTT v. MOORE.
    No. 38860.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    Rehearing Denied March 21, 1949.
    Henican, James & Cleveland and Murray F. Cleveland, all of New Orleans, for plaintiff.
    A. B. Granzin, Jr., of New Orleans, for defendant.
   HAMITER, Justice.

In this summary proceeding, commenced by a motion in the First City Court of New Orleans, plaintiff seeks possession of certain premises owned by him and occupied by the defendant under a verbal lease of $40 per month. To the motion, under which a rule issued, defendant tendered an exception of no cause of action, the basis therefor being that plaintiff failed to allege that he is acting in good faith.

The City Court, without considering the merits, sustained the exception and recalled the rule for possession. Plaintiff thereupon appealed to the Court of Appeal for the Parish of Orleans.

The latter court, after a hearing on the exception, of no cause of action and a trial of the merits, reversed the ruling of the City Court and rendered judgment for plaintiff as prayed for.

On defendant’s application we issued the writ of' certiorari for the purpose of reviewing the Court of Appeal’s action in (1) overruling the exception of no cause of action and (2) passing upon the merits of the case, the City Court not having done that.

The Housing and Rent Act of 1947, 50 U.S.C.A.Appendix, § 1881 et seq., provides that the landlord must seek in good faith the recovery of possession of his premises. In his motion this plaintiff did not specifically aver, as pointed out by defendant in the exception of no cause of action, that he was acting in good faith. The motion did contain, however, the following allegations: “* * * that mover desires possession of the said apartment for occupancy by himself and his wife; that mover’s need for the said apartment occupied.by Crestón C. Moore is immediate and compelling for the reason that mover and his wife are advanced in years, and the condition of their health is such that they need more space and better living quarters than those afforded in the apartment which they are presently occupying; that mover has been advised by his doctor to obtain more adequate living quarters; that mover and his said wife formerly occupied the apartment presently occupied by Crestón C. Moore; and that said defendant in rule has been regularly notified to vacate, according •to law, a copy of the said notice being attached hereto and made part hereof.”

Good faith is always presumed. Antoine Lumber Company, Ltd., v. Southern Bag & Paper Company, Inc., 171 La. 696, 131 So. 852, Skannal v. Hespeth, 196 La. 87, 198 So. 661. Consonant with that presumption are the factual allegations (above quoted) of plaintiff’s motion; at least, there is nothing therein contained destructive of it. Moreover, to allege good faith in just those words is to plead merely a conclusion, and that is never required. From all of which it follows that the attributing of bad faith to this plaintiff could only be done by way of defense on the trial of the merits. The exception of no cause of action was correctly overruled.

As to the mentioned second proposition appeals in cases of this kind are tried de novo by the Court of Appeal. Article 7, Section 91, Louisiana Constitution of 1921. A -trial de novo means a trial anew, from the beginning; the whole case is open for decision. Town of Rayville v. Mann, 136 La. 237, 66 So. 957. At such a trial the appellate court may pass upon all questions in the case, including those pertaining to the merits, even though the decision of the court of original jurisdiction was predicated only on an exception. State ex rel. Matt v. Rightor, Judge, 37 La.Ann. 843 and In re Theriot, 117 La. 532, 42 So. 93.

Rule XII of the Court of Appeal of the Parish of Orleans, to which our attention is directed by defense counsel, in no manner militates against that doctrine. It provides :

“In appeals to this Court in cases involving $100.00, or less, the transcript shall show affirmatively the names of the witnesses sworn, and the documentary evidence offered, on behalf of the respective parties.
“No witness shall be heard to testify in this Court in such appeals, who shall not have appeared as a witness in the court below, unless upon affidavit or other satisfactory showing to the Court that such witness ought not to have been, or could not by the exercise of reasonable diligence be produced in the lower court, or that, in the exercise of due diligence, such witness became known to the party producing him only after the trial. of the case in the lower court. The same rule shall apply to documentary evidence.
“This rule shall be so construed as to effectuate the purpose of requiring all cases to be fully and fairly tried in the Court of first instance.
“No provision of the rules of this Court shall have application to trials de novo, unless special reference is made thereto.” (Italics ours.)

A careful reading of the quoted rule discloses that it is applicable only when and if the appealed case has been heard and decided on its merits by the -court of first instance ; a case previously disposed of on an exception is not thereby contemplated. Especially supporting this conclusion are the emphasized portions of the rule.

We hold, therefore, that the Court of Appeal was fully authorized to pass upon the merits of this case as it did.

For the reasons assigned the judgment is affirmed.

O’NIELL, C. J., and HAWTHORNE, J., do not take part.


text:
    214 La. 1095
    HARREL v. WINN PARISH SCHOOL BOARD.
    No. 39360.
    Supreme Court of Louisiana.
    March 21, 1949.
    Harry Fuller, of Winnfield, for plaintiff-appellant.
    Saín L. Wells, of Colfax, for defendant-appellee.
   FOURNET, Justice.

This suit was instituted on February 11, 1949, by a citizen and taxpayer of the Town of Winnfield, Louisiana, to have declared null and void the action taken by the Winn Parish School Board on May 2, 1947, in adopting a resolution enlarging the Winn-field School District so as to embrace and overlap an existing school district (in contravention of Act No. 152 of 1920, as amended by Act No. 190 of 1936) having an outstanding bonded indebtedness of $98,-000, with the result that the district as previously constituted will be subject to an ad valorem tax in excess of 10% of its assessed valuation, in violation of Section 14(f) of' Article XIV of the Constitution of 1921, and also to enjoin the issuance and sale of the bonds authorized by the taxpayers of the district in an election held on May 18, 1948. It is now before us on an appeal taken from the judgment of the lower court maintaining -the defendant’s plea in bar of the action under the provisions of Section 14(n) of Article XIV of the constitution and denying the relief sought.

The framers of our constitution by incorporating Section 14(n) of Article XIV made it plain that they intended to fix 60 days from the date of the promulgation of -the returns from any election held under the provisions of Section 14 as . a reasonable time within which taxpayers or any interested persons could contest the legality of any election held under Section 14, the bond issue provided for, or the tax assessed, after which their legality is conclusively presumed and not subject to contest in the courts “for any cause whatsoever.” Brock v. Police Jury, Parish of St. Landry, 159 La. 66, 105 So. 227; Fontenot v. Miller Gravity Drainage District No. 3 of Evangeline Parish, 159 La. 302, 105 So. 351; Covington Bank & Trust Co. v. Town of Covington, 159 La. 389, 105 So. 382, 383; Chiara et al. v. Lafourche-Terrebonne Drainage District et al., 159 La. 422, 105 So. 418; Henderson Land, Timber & Investment Co. v. Police Jury of Vernon Parish, 159 La. 733, 106 So. 285; Brown v. Chataignier Gravity Drainage District No. 2 of Evangeline & St. Landry Parishes, 161 La. 309, 108 So. 548; Cleaver, Vass & Co. v. Consolidated Road District A, 166 La. 711, 117 So. 783; Roy et al v. City of Lafayette, 168 La. 1081, 123 So. 720; Charles Webster Realty Company, Inc., v. Police Jury of Parish of Washington, 170 La. 562, 128 So. 516; Gravity Drainage District No. 2, Tangipahoa Parish, v. Caldwell & Co., 171 La. 58, 129 So. 668; McGuffie v. Police Jury of Catahoula Parish, 183 La. 391, 163 So. 841; Miller v. Town of Bernice, 186 La. 742, 173 So. 192; Henning v. Town of Sulphur, 191 La. 979, 186 So. 845; Houssiere v. City of Jennings, 195 La. 1042, 197 So. 750; Nanney v. Town of Leesville, 198 La. 773, 4 So.2d 825; Carnahan v. Police Jury of Calcasieu Parish, 199 La. 262, 5 So.2d 766; Thistlethwaite v. Mayor and Board of Aldermen, 199 La. 890, 7 So.2d 175; Gough v. LaSalle Parish School Board, 210 La. 554, 27 So.2d 330; Sansing v. Rapides Parish School Board, 211 La. 936, 31 So.2d 169; Browning v. Webster Parish School Board, 212 La. 139, 31 So.2d 621.

The record shows that the returns of the bond election' held on May 18, 1948, were promulgated on May 22, 1948, some nine months prior to the institution of this suit (February 11, 1949). Plaintiff is, therefore, without right to question the legality of this election or the validity of the bond issue and tax assessment authorized thereby.

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

O’NIELL, C. J., takes no part.


author: ' PONDER, Justice.

text:
    214 La. 1099
    DOUGLAS v. HARO et al.
    No. 38843.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    Rehearing Denied March 21, 1949.
    Pat F. Bass and Lemle, Moreno & Lemle, all of New Orleans, for petitioner-appellant.
    Vic Choppin, Jr., of New Orleans, for defendant-appellee. '
   ' PONDER, Justice.

This case comes to us on review from the Court of Appeals for the Parish of Orleans. The Court of Appeals affirmed the judgment of the trial court sustaining exceptions of no right and no cause of action on the ground that the plaintiff’s petition did not disclose an interest to prosecute the action and dismissed the, plaintiff’s suit.

The plaintiff brought an action in. ex delicto against the defendant, Julian L. Haro. It is alleged in the plaintiff’s petition that he owns and operates a garage for the purpose of parking and storing automobiles for a stipulated consideration; that during the month of November, 1945 he had a contract with the New Orleans Bank for Cooperatives to park its Buick automobile for a stipulated consideration; that an employee of the plaintiff wrongfully took the automobile from the garage where it was parked and used it on a. mission of his own without the knowledge and consent of the plaintiff; that, while the employee was using the automobile, a collision occurred between it and another automobile belonging to the defendant, Julian L. Haro; that at the time of the collision the Buick automobile was worth $938.50; that after the collision the automobile was so badly damaged that it was not feasible to have it repaired and the wreck was sold for $275; that the loss to plaintiff was $663.50; arid that the damages resulted from the negligent operation of the defendant’s automobile.

The plaintiff takes the position that he, being responsible for the return of the deposit or to make restitution to the depositor, has an interest to recover from the tort feasor the damages resulting from the injury or destruction of the deposit. The defendant contends that the plaintiff has no interest to sue because he has suffered no loss and has alleged no demand from the depositor' for' restitution. The appellate court distinguishes this case-from previous decisions holding that a depositary has sufficient interest to maintain an action-for the possession of a deposit wrongfully taken from him. It is not necessary to express an opinion in this respect for the reason that the depositor is a necessary party to the suit in order to determine the rights of all the interested parties and to avoid a multiplicity of suits.

Under the provisions of our Civil Code, a deposit is defined as an ■ act by which a person receives the property of -another,' binding himself to preserve it and return it in kind. The depositary must use the saíne diligence in preserving the deposit as he does in preserving 'his ■ own property- and the deposit must be restored on demand in the state in which it is in at the moment of restitution subject to deteriorations not affected by an act of the depositary. Articles 2926, 2937, 2945, 2955, Revised Civil Code.

The depositor has a right to pursue an action against the depositary under the contract -of deposit any- -time within ten years, Article 3544, Revised Civil Code. The right of action to recover damages from the defendants is one in ex delicto which prescribes in one year, Article 3536, Revised Civil Code. If the depositor did not pursue the action in ex .delicto within one year and the depositary was deemed to have no interest to .bring such.-action,, the depositary would -be in the position where he could be made to make restitution for. the. loss of the deposit without any remedy.

The modern trend of liberality in' upholding substantive rights instead of subtle technicalities is to allow amendments to petitions that fail to state a' cause of action due to insufficient allegations. Reeves v. Globe Indemnity Co. of New York, 185 La. 42, 168 So. 488. Since the opinion in that case wás handed down, this' Court has on many occasions adhered to the rulé in order to rende'r substantive justice.

We have heretofore remanded cases to the lower court in order" that necessary parties may be impleaded where no exception .of non-joinder was interposed in order to render substantive justice and to avoid a multiplicity óf suits. Succession of Todd, 165 La. 453, 115 So. 653; De Hart v. Continental Land & Fur Co., 196 La. 701, 200 So. 9, and Bologna Brothers v. Stephens, 206 La. 112, 18 So.2d 914.

For the reasons assigned, the judgment is reversed and set aside and the 'case is remanded to the lower court' in- Order that the New Orleans Bank for Cooperatives, the depositor, may be impleaded with the right of all parties at interest to file whatever pleadings they deem appropriate. All costs to await the final disposition of this cause.

O’NIELL, Ci J., and HAWTHORNE, J., do not take part.


author: McCALEB, Justice.

text:
    215 La. 1
    JONES v. WILLIAMS.
    No. 38916.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    Rehearing Denied March 21, 1949.

      Thos. M. Comegys, Jr., of Shreveport, for plaintiff-applicant.
    Wellborn Jack and Ashley J. Gold, both of Shreveport, for defendant-respondent.
   McCALEB, Justice.

On August 28, 1945, plaintiff received injuries in an accident while performing work required of him as an employee of Althea Williams, who was engaged in the operation of a general trucking and transfer business in Shreveport. Alleging that his employer’s occupation was hazardous and that he was totally and permanently disabled as a result of the accident, he sued for compensation under the Employers Liability Act, Act No. 20 of 1914, as amended, at the rate of $20 per week for 400 weeks. In the alternative, he asserted that, if it should be held that the compensation law was inapplicable, he was entitled to recover damages as the accident resulted solely from the negligence of the defendant.

In due course, the defendant answered and denied that plaintiff was her employee. She averred that she was an employee of Peterson Sales Company of Shreveport; that she was authorized by it to employ helpers- and that it was only by yirtue of. this authority that she hired plaintiff.

Because of the allegations contained in defendant’s answer, plaintiff filed a supplemental petition in which he joined Peterson Sales Company as a party. He alleged that Peterson Sales Company, in the course of - conducting its business and as part thereof, contracted with Althea Williams to' perform services for it as an independent contractor and that it was- therefore liable to him under Section 6 of the Employers Liability Act, as amended, Act No. 85 of 1926. He further averred, in the alternative, that, if the sworn statements- contained in the answer of Althea Williams were found to be true, Peterson Sales Company be adjudged liable for compensation as his employer.

Peterson Sales' Company answered asserting that it had nothing whatever to do with Althea Williams and that, in reality, Peterson Motors, Inc. was the party at interest by reason of an arrangement it had made with her to perform certain hauling services.

In view of this development, plaintiff filed another supplemental petition reiterating all of his previous allegations and substituting Peterson Motors, Inc. as defendant in the place of Peterson Sales Company. Thereafter, Peterson Motors, Inc. appeared and resisted the demand by exception and answer. Subsequently, however, it settled its liability with plaintiff by paying him $1,-000 in compromise which was confected in accordance with Section 17 of the Employers Liability Act, as amended, Act No. 96 of 1942, by a joint petition and with the approval of the court. In the agreement, plaintiff reserved all of his rights and causes of action against Althea Williams and was subrogated to any right that Peterson Motors, Inc. might have against her by virtue of the provisions of Section 6 of the Act.

After the compromise judgment had been entered, Althea Williams filed a plea of es-toppel in which she contended that plaintiff, by settling with Peterson Motors, Inc., tacitly acknowledged that he was its employee; that he was thereby estopped from asserting thát he was employed by her and that, at all events, the compromise settlement should be declared res adjudicata as. to his, entire demand.

These pleas were overruled by the trial judge- and, following a hearing on the merits of the case, .there was judgment in plaintiff’s, favor for compensation at the rate .of $19.50 per week for the period of his, disability, not exceeding 400 weeks, less a credit of $1,000 (received in the compromise settlement with Peterson Motors, -Inc.) with ' interest and costs. Althea Williams appealed to the Court of Appeal for the Second . Circuit .and plaintiff answered, praying, that the judgment be amended so as to disallow defendant credit for the $1,-.000 paid him in the settlement.

After a hearing in the Court of Appeal, the plea of estoppel was maintained and plaintiff’s suit dismissed, See La.App., 33 So.2d 580. Plaintiff applied for a rehearing which was granted but limited to a consideration of whether defendant was liable in tort under . plaintiff’s alternative demand. The rehearing on this question resulted in a, judgment in defendant’s favor and plaintiff then applied here, for a writ of certio-rari. The writ was granted and the matter is now before us for decision.

.Counsel .for. Althea Williams have filed a,motion to recall the writ asserting that it was improvidently granted because application therefor was not made within thirty days after a rehearing was refused by the Court of Appeal on the demand for compensation,,

On November 10, 1947, plaintiff applied to the Court of Appeal for a rehearing and on November 26th the Court entered the following order : “The rehearing ■ applied for by the plaintiff, appellee, is granted, but restricted to the alternative demand, the tort action; in all other respects a rehearing is denied.”

The final judgment of the Court of'Appeal on rehearing was entered on February 2,1948 and within thirty days thereof, viz., February 26, 1948, plaintiff applied to this court for a writ of review.

The contention of defense counsel is that, since the Court of Appeal refused a rehearing on the compensation claim on November 26, 1947, plaintiff .was required by Section 11 of Article VII of the Constitution -to file his application within thirty days after that date.- ' . . ...

We see no merit in the proposition. Section 11 of Article VII of the Constitution provides, in substance, that it is competent for this court to require, by certiorari or otherwise, “ány case to be certified from the 'Courts of Appeal to it for review” but that this court “shall in no case exercise the power conferred by this Article unless the application shall have been made * * * within thirty days after 'a rehearing shall have been refused by the Court of Appeal; - ■

'A consideration of the language of the constitutional provision makes manifest to us an intention to predicate the right to apply for a writ of review upon final action ■of the. Court of Appeal in “any case” as distinguished from a demand. In the instant matter, while -it is true that the action of the Court of Appeal on November 26, 1947 (in limiting the rehearing applied for to a consideration of the’demand in tort) was final insofar as the compensation demand was concerned, it was not a final disposition of the cause as the Court still retained the right to grant plaintiff the relief alternatively prayed, for. Accordingly, plaintiff was not required to file his application within thirty days after that order was entered as it is not until there is a final, judgment of the Court of Appeal in “any case” that the time for applying to this court for writs of ■review begins to run. The motion to recall the writ is therefore denied.

■The principal'matter presented for discussion on the merits of the case is whether the compromise by plaintiff of his claim against Peterson Motors, Inc. is res adjudi-cata as to Althea Williams or has estopped him from pursuing his cause of action against her. There is apparently no dispute between the parties respecting the accident, the injuries, the employment and Althea Williams’ ensuing'responsibility for compensation under ordinary circumstances. But it is professed that, because plaintiff settled with Peterson Motors, Inc. its liability for compensation on the same cause of action, the compromise judgment effectively adjudicates all of his rights and that he has thereby estopped himself from continuing to claim compensation from Althea Williams.

The argument for res adjudicata is without substance, as Althea Williams is not a party to the compromise judgment. The plea is sustainable only where the demand adjudicated is between the same, parties and formed by them against each other in the same quality. Article 2286 of the Civil Code.

However, the Court of Appeal thought that plaintiff was estopped, holding that he had elected to pursue an inconsistent course by compromising the claim with Peterson Motors, Inc. It observed [33 So.2d 583] : "“But when he elected to settle with one party as the employer we believe that by such a free and independent election he has estopped himself from the continuance of the assertion of his claim against the other. Obviously there is a vast distinction between alternative pleading and the election of a remedy.”

We find this conclusion to be erroneous for a number of reasons. In the first place, estoppel is an equitable remedy and, whether it be judicial or otherwise, it cannot be successfully invoked unless the party pleading it exhibits that- he was damaged by the act sought- to serve as "a basis for the estoppel. Farley et al. v. Frost-Johnson Lumber Co., 133 La. 497, 63 So. 122, L.R.A.1915A, 200, Ann.Cas.1915C, 717; Tyler v. Walt et al., 184 La. 659, 167 So. 182; Sanderson v. Frost, 198 La. 295, 3. So.2d 626; Robinson v. Hunt et al., 211 La. 1019, 31 So.2d 197; Janney v. Calmes, 212 La. 756, 33 So.2d 510 and Slaton v. King, 214 La. 89, 36 So.2d 648.

Nor do we think that the court enhanced the soundness of its resolution by founding it on.plaintiff’s alleged election of a remedy. Indeed, the rules pertaining to election of remedies are without pertinence to the case at bar, as that doctrine of procedure applies only where the remedies pursued against different persons are repugnant and inconsistent. See 28 C.J.S., Election of Remedies, § 8, page 1073; Idem 18 Am.Jur. Sections 11, 12, and 13. Here, the remedies invoked by plaintiff are pleaded in the alternative and this fact alone renders them- incapable of being inconsistent.

In Haas v. McCain, 161 La. 114, 108 So. 305, 306, it was said: “Two demands that would be inconsistent if both were insisted upon are no.t at all inconsistent when made alternatively; that is, when the demand urged secondly is made only on the condition that the demand first made should not be granted.”

See also Templet v. Babbitt, 198 La. 810, 5 So.2d 13 and cases there cited.

Since the- remedies are not repugnant, there is no valid reason why plaintiff should not have, settled with one defendant and re-serve his right as to the other. ■ As a matter of fact, Althea Williams, far from suffering prejudice as a consequence of the settlement, is better off to the extent of $1,000, as the judge of the district court credited that amount against the total 'compensation due by her. ■

Plaintiff, however, complains that the district court should not have permitted the credit of $1,000 and he answered the appeal of Althea Williams praying that the judgment be amended in that respect-.- This contention is not well founded because plaintiff is entitled,to recover no more than the weekly compensation due him under the Employers Liability Act for -the period of his disability, not exceeding 400 weeks. Hence, any payment, that he receives, whether in compromise or not, must be deducted from the total compensation due.

The judgment of the Court of Appeals is annulled and the judgment of the district court is reinstated and affirmed. All costs are to be paid by Althea Williams.

O’NIELL, C. J., does not take part


author: FOURNET, Justice. PER CURIAM.

text:
    215 La. 13
    Succession of DUGAS. In re BREAUX.
    No. 38920.
    Supreme Court of Louisiana.
    Feb. 14, 1949.
    Rehearing Denied March 21, 1949.
    C. Arthur Provost, of New Iberia, for exceptor, opponent, appellant, and applicant.
    Mestayer & Mestayer, of New Iberia, for administratrix, appellee, and respondent.
   FOURNET, Justice.

This case was previously before us on an appeal taken from the judgment of the district court dismissing the appellant’s opposition to the final account filed in the Succession of Erazie Dugas, as well as the opponent’s claim as an heir to a fourth of the decedent’s estate, but the amount involved being- less than $2,000 we transferred the matter to the court of appropriate jurisdiction, the Court of Appeal for the First Circuit. Succession of Dugas, 211 La. 544, 30 So.2d 425. The matter is now before us for a review oí that court’s affirmation of the lower court judgment, Succession of Dugas, La.App., 33 So.2d 133, on a writ of certiorari granted the opponent.

It appears that Erazie Dugas, a deaf mute, died intestate on April 10, 1943,' leaving an estate consisting of a small tract of land that was appraised at $1,200 but brought $1,500 at the subsequent sale ordered by the court. She left surviving her as heirs the children of two pre-deceased brothers and two sisters, Mrs. Cecile D. Dugas and Mrs. Amelie Dugas Breaux. The former, as administratrix of the succession, filed a final account showing as the only asset the $1,500 received from the sale of the property, which amount she proposed to dispose of by paying funeral debts amounting to $95.32 and legal charges of $212, with the remainder to herself as a creditor of the succession in the amount of $4,291, compensation due for the care, maintenance, and custody of the decedent, all in accordance with the statement filed when she obtained the court’s order for the sale of the property, which statement shows the claim covers the period from March 1, 1926, to April 10, 1943, at the rate of $1 per day, or a total of $6,246. To this amount she added a claim for $170. for taxes and maintenance of the property for 17 years, aggregating -in all a sum of $6,-416, less a credit of $2,125.

After the exceptions of vagueness to the claim of the administratrix had been overruled, Mrs. Amelie Dugas Breaux, byway of opposition, sought to recover a fourth of the estate, that is, the sum of $298.17, claiming the amount listed by the adminis-tratrix was not due and owing. Before judgment was rendered the claimafit died and she was succeeded in this litigation by Dumas A. Dugas, appointed by the court as the administrator of her estate and against whom the proceedings were continued. There was judgment in the lower court dismissing the opposition.

Counsel for the opponent, invoking the rule of law relative to services rendered pursuant to a procuration or mandate as set out in Article 2991 of the Revised Civil Code, argued -in the courts below, as he does here, that providing a person with board, lodging, and -maintenance, without any contract either express or implied, is presumed to be gratuitous; in any event, that the claim was not legally proved as required by Act 207 of 1906, as amended by Act 11 of 1926.

The learned trial judge in disposing of the first issue in a carefully considered and well-reasoned opinion concluded ■ the ad-ministratrix was entitled to recover in quantum meruit for the services she rendered the decedent. It was his opinion that one in- penurious circumstances, as was the claimant, barely eking an existence from the soil in a section frequently subjected to overflow, in assuming the additional burden of caring for a sister who was not only a deaf mute but was, during the major portion of the 17 years she lived with the claimant, totally blind, requiring constant supervision and care and calling for a devotion seldom encountered between sisters, was entitled to compensation for such services out of the estate of the decedent. He divided the claim into two categories, the first for the personal services rendered the decedent and the second for her board and lodging. Finding the former subject to the prescription of one year under Article 3534 of the Revised Civil Code and the latter subject to the prescription of ten years under Article 3544, he allowed recovery accordingly and, after fixing their value at 25^ a day for services and 50^ a day for board and lodging, he reduced the claim from $4,291 to $1,916.25. However, even as reduced, the estate of the décedent was insufficient to liquidate this amount and there was, therefore, nothing to be divided with the opponent. In disposing of the second issue, he concluded the law requiring proof of claims of this nature against a deceased person,. when such claims are filed more than a year after death, had no application because “it should be considered that the claim was filed December 10, 1943, when the administratrix attached a list of debts to her petition seeking an order for the sale of the property of the succession. This was less than one year from the death of the deceased, as she died April 10, 1943.” He therefore dismissed the opposition.

The Court of Appeal in affirming this judgment reasoned that the law of procuration and mandate as found in Article 2991 of the Revised Civil Code has no application in this case since the condition under which the services were rendered in the several cases relied on by the opponent were not similar to the one now being considered but were, rather, more of the same nature as those rendered in the case of Muse v. Muse, La.App., 33 So.2d 128, and concluded the principle of. law announced by this court in the case of Latour v. Guillory, 134 La. 332, 64 So. 130, is more appropriate to the facts of the case. In that case, although the court refused the claim on the facts — the son-in-law advancing the claim was actually residing with the deceased father-in-law who had been. enjoying the usufruct of the family homestead through the common consent of all of the children — pointed out that the plaintiff, one of. the children against whom the claim for board and lodging for the deceased was made, was under no greater obligation to support his father than any of the other five children, observing: “Where there are a number of children, the obligation to maintain the father is solidary. The richest is not obliged to contribute more than the others to the discharge of the common debt.” [33 So.2d 131] The'Court of Appeal, applying this principle of law to the facts of this case, reasoned that “Where one of them is afflicted as was the decedent in this case and there are more than one of the others who can render the services required, the obligation should not fall on the shoulders of only one of them. If the others let one discharge it alone that one should have recourse against the es-táte of the decedent if the estate is shown’ to be solvent.” [33 So.2d 135]

While an examination of the jurisprudence on. this 'subject shows that ■ claims made by children of a deceased parent for services rendered the parent during his lifetime are presumed to be gratuitous unless rendered pursuant to a contract, express or implied, and recovery therefore cannot be had — particularly when the claim is for furnishing these services to parents in necessitous circumstances — as the children are only fulfilling the obligation imposed upon them by the express provisions of Article 229 of the Revised Civil Code. Succession of Guidry, 40 La.Ann. 671, 4 So. 893. But where there is more than one child, this court has held that inasmuch as this Obligation is imposed upon all of the children equally, recovery may be had for the services rendered the parent by one of the children against the other children, who can be made to contribute their share rata-bly, and the claimant may recover this amount from the succession of the deceased parent. In re Estate of Olivier, 18 La.Ann. 594; Succession of Newton, 33 La.Ann. 621; Succession of Guidry, supra; Latour v. Guillory, 134 La. 332, 64 So. 130; Succession of Templeman, 134 La. 798, 64 So. 718.

But this principle of law does not obtain between brothers ánd sisters, for the law does not impose an obligation of support among collaterals. From our examination of the cases and jurisprudence touching upon the services furnished by collaterals in such instances we find that the court,.either in granting or refusing the claim, decided the case on its particular facts.

This is in accord with the general law on the subject as reflected by a reference to 71 C.J. 76, Section 37, where it is stated that “The mere existence of the relation of brother and brother, brother and sister, or sister and sister, is not sufficient per se to authorize a presumption that services rendered or board and the like furnished by the one to or for the other are gratuitous, nor does such relationship alone rebut the prima facie implication of a right to compensation arising from rendition and acceptance.of valuable services, and where the circumstances repel the inference of a gift of services or support, none will be implied merely because of the blood relationship of brother and sister.” See, also, 28 R.C.L. 682, Section 17.

Our examination of the record convinces us of the correctness of the conclusion reached in both of- the courts below. The evidence is very meagre, consisting of' approximately only four pages of the claimant’s testimony. She states her sister came to live with her at the age of SI after the death of their mother and that she did so “Because the others did not want to take her.” Her sister and her then living brother are the “others” referred to. Under examination of the trial judge it was revealed the deceased became blind shortly after the claimant took charge of her and that during the remaining 17 years of her life she required constant care, attention, and supervision, it being impossible to leave her alone at any time. ' The evidence further reveals that the brother and sister not only did not want to take the responsibility of caring for the decedent, but that the claimant was led to believe she would be entitled to either compensation or assistance in assuming this burden for upon the death of the mother she was handed $100 by the brother and sister and it was agreed the claimant should have the stock and cattle that admittedly belonged to the deceased. We think, therefore, that instead of claimant’s claim coming “with poor grace,” as contended by counsel for the opponent, it comes with poor grace for this opponent, who refused to help her afflicted sister during these many years, to oppose the claim of the sister who was willing to do so and who, in this way, relieved the opponent of any responsibility in the matter.

Counsel has apparently abandoned the pleas of prescription, except for the alternative suggestion that if the claim is for board and lodging as an innkeeper or for nursing the prescription of one year should be applied, but since the claims do not fall into these categories, this contention is without merit.

We now pass to the opponent’s further contention that the claim was not proved as required by Act 207 of 1906 as amended by Act 11 of 1926.

In White v. Succession of Candebat, 210 La. 995, 29 So.2d 39, 40, we pointed out that “ * * * a claim against a deceased person, unlike ordinary cases requiring the plaintiff to prove his claim if more- than $500 ‘at least by one credible witness, and other, corroborative circumstances’ (Article 2277 of the Revised Civil Code), * * * can only be established by the ‘testimony of at least one credible witness of good moral character, besides the plaintiff,’ that is, if such action has been brought zvithin 12 months after the death of the decedent, otherwise parol evidence is not admissible to prove the claim.” Citing Act 207 of 1906, as amended by Act 11 of 1926. (Italics ours.)

Section 1 of that act provides “That parol evidence shall be incompetent and inadmissible to prove any debt or liability upon the part of a party deceased, if a suit upon the asserted indebtedness or liability shall have been brought more than twelve (12) months after the death of the deceased.”

When the administratrix filed her final account on March 15, 1944, in which account she included the claim for her services to the decedent, she filed a suit within 12 months following the decedent’s death within the meaning and contemplation- of Section 1 of this act as that account, when duly homologated by the trial judge,' became res judicata as to- all interested parties who did not timely oppose it and will also become res judicata as to the claimant and the opponent here when this judgment becomes final.

Although we are convinced from the record that the services were rendered and that the value placed thereon by the trial judge is fair and reasonable, it appears that the claimant has failed to prove her claim precisely as required by Section 2 of the act, that is, by the testimony of at least one credible witness of good moral character, besides the claimant. This being so, we are powerless to consider the testimony of the plaintiff in this case until it has been corroborated. ' We will, therefore, in the interest of justice remand the case- in order that- the. claimant may be afforded the opportunity to supplement this deficiency.

For the reasons assigned the case is remanded to the lower court for the sole purpose of hearing further evidence in substantiation of the claim that Mrs. Cecile Dugas rendered the services claimed to the decedent for which she seeks compensation. All costs of this opposition are to be borne by the opponent.

O’NIELL, C. J., does not take part.

On Application for Rehearing.

PER CURIAM.

Appellant, Amelie Dugas Breaux, in her application for rehearing contends that our decree in this case denies to her the right to introduce evidence to contradict, rebut, or offset the evidence to be offered by Mrs. Cecile Dugas in support of her claim for services rendered, and further denies to appellant the right to modify or explain her position.

Our decree does not, nor was it intended to, deny to appellant any such right.

A rehearing is denied.