author: JONES, Justice. TORBERT, Chief Justice BEATTY, Justice

text:
    Faye M. CHURCHILL, et al. v. BOARD OF TRUSTEES OF the UNIVERSITY OF ALABAMA IN BIRMINGHAM, et al., etc. BOARD OF TRUSTEES OF the UNIVERSITY OF ALABAMA IN BIRMINGHAM, et al., etc. v. Faye M. CHURCHILL, et al.
    80-601, 80-601A.
    Supreme Court of Alabama.
    Feb. 26, 1982.

      Barry V. Hutner and Robert R. Kracke of Kracke, Woodward & Thompson, Birmingham, for appellants.
    Gene R. Smitherman, Birmingham, for appellees.
   JONES, Justice.

Plaintiffs (private hearing aid specialists/dealers and the Alabama Hearing Aid Dealers Association) sued Defendants (Board of Trustees of the University of Alabama in Birmingham and Dr. Alan W. Eisele), alleging unfair competition in the sale of hearing aids by the University's Speech and Hearing Center. A temporary restraining order was issued, perfected by bond, and renewed until judgment could be rendered. The trial court ruled in favor of Defendants, dissolved the TRO and released and discharged the sureties on the injunction bond. This appeal (and Defendants’ cross appeal) is the result of the trial court’s denial of Plaintiffs’ motion for a new trial and Defendants’ motion to amend the order with respect to the release and discharge of the principal and sureties on the bond.

We affirm as to both the appeal and the cross appeal.

The Appeal

We summarize Plaintiffs’ argument: Neither the State nor its agencies may engage in private business or in' activities which amount to unfair competition with the private business sector; neither may the State authorize any of its political subdivisions to so engage.

Plaintiffs cite numerous cases which hold that the purpose of the State is to protect its citizens in their business enterprises and not to engage in commercial enterprises itself. Plaintiffs depend heavily upon the language in the Minnesota ease of Rippe v. Becker, 56 Minn. 100, 57 N.W. 331 (1894), which holds that:

“The time was when the policy was to confine the functions of government to the limits strictly necessary to secure the enjoyment of life, liberty, and property. The old Jeffersonian maxim was that the country is governed the best that is governed the least. At present, the tendency is all the other way, and towards socialism and paternalism in government... . The wisdom of such a policy is not for the courts. The people are supreme, and, if they wish to adopt such a change in the theory of government, it is their right to do so. But in order to do it they must amend the constitution of the state. The present constitution was not framed on any such lines.”

Plaintiffs insist that the activities of the University’s Speech and Hearing Center in selling hearing aids violate § 35 of the Alabama Constitution, which states:

“That the sole object and only legitimate end of government is to protect the citizen in the enjoyment of life, liberty, and property, and when the government assumes other functions it is usurpation and oppression.”

The sale of hearing aids, contend Plaintiffs, is not a function of education or instruction of this agency of the government.

Defendants’ counter argument, in support of the trial court’s order, is summarized as follows:

This is clearly a case calling for a balancing of interests. However, because of: 1) Code 1975, § 16-47-1, which states that that Board of Trustees of the University of Alabama is a public corporation with the purpose of the administration of a seminary of learning; and 2) § 16-47-2, which authorizes the Board to exercise those powers reasonably incidental to or implied by the promotion of the above-stated purpose, the trial court did not err in concluding that UAB has the legal authority to engage in the dispensing of hearing aids, that activity being incidental to the main purpose of the complete audiology program of UAB.

The trial court was correct, insist Defendants, in concluding that the decisions of UAB as to how to conduct its educational activities should not be overturned, because the decision was not made capriciously, arbitrarily or in bad faith (the applicable standard in such cases).

In support of their cross appeal, claiming the trial court incorrectly discharged the sureties on the injunction bond upon dissolution of the TRO without permitting the recovery of damages under the bond, Defendants cite the case of Satellite Broadcasting Co. v. Tingley, 286 Ala. 571, 243 So.2d 677 (1970); and ARCP 65(c), 65.1.

The trial court’s order includes findings of fact, for which we find ample support in the evidence of record, and conclusions of law, which we adopt, to the extent of the parts quoted herein, as the opinion of this Court:

“Testimony indicates that the Plaintiffs own and represent the sales of approximately 80% of the hearing aids dispensed in the Birmingham area. Several of the Plaintiffs have more than one business location and some of these locations are in other cities in Alabama. The testimony further indicates that the useful life of a hearing aid .is approximately 3.7 years and that repeat business is very important to a hearing aid dealer.

“The sale of hearing aids in total dollars and total units has been increasing. It is noted that one of the Defendants’ witnesses, Dr. David Goldstein of Purdue University testified that approximately 77% of hearing impaired children have hearing aids while only approximately 17% of hearing impaired adults have hearing aids. Given the relatively short useful life of the hearing aids the increase in sales is logical. For whatever reason, of the Plaintiffs who testified on the subject, all reported increases in sales. Mr. Patillo simply testified that business was ‘up’ in 1980. Mrs. Churchill’s revenues rose and the unit sales increased from 113 in 1978 to 136 in 1979 and 166 in 1980. Mr. West’s unit sales increased from 250 in 1979 to 340 in 1980. While there was a great deal of speculation as to what would happen to their business if the Defendants were allowed to sell hearing aids, there was no conclusive evidence since the Temporary Restraining Order was issued less than three months after Defendants began selling the hearing aids.

“There was testimony by various Plaintiffs that a large portion of their business was derived from referrals from UAB’s speech and hearing clinic. However, Plaintiffs, Pitts, Walter, Churchill and Patillo, all testified that they have not been getting many referrals lately. Mr. Patillo hasn’t received any referrals for approximately two years and Mrs. Churchill gets approximately 95% of her business from referrals from doctors.

“Although it varies slightly from month to month, UAB’s speech and hearing clinic sees approximately 500 patients per month. Defendants estimate that the normal patient load will generate sales of 25 to 30 hearing aids per month. The number of hearing aids that might be sold per month is disputed; however, it is noted that Plaintiffs’ witness, Dr. D. R. Schumaier, testified that his business sees between 20 and 40 patients per day and that he sells between 35 and 40 hearing aids per month. Defendants’ estimates, therefore, seem to be within reasonable expectation. It is further noted that Dr. Eisele testified that if hearing aids are sold by the Defendants, the total number of patients seen each month may decrease due to the additional time required in connection with the fitting and adjustment of the hearing aids.

“A good amount of testimony concerned the changing ethics of the audiology profession as published by the American Speech, Language and Hearing Association (‘ASHA’) and other professional associations. Some testimony and argument has been directed at the method of such changes. The Court, therefore, feels that it should state at the outset, that to extent Plaintiffs’ arguments are to the effect that audiologists should not sell hearing aids, or should not be trained in the practice and procedure required to be able to correctly prescribe and fit hearing aids, the Court rejects the argument. At that point in the argument, the Plaintiffs would, be asking for protection against competition per se, not from unfair competition from state supported non-profit universities.

“It appears to the Court that the question of a properly licensed audiologist’s right to sell hearing aids has been settled and the Court rules that the properly licensed audiologist may sell hearing aids. In support of its position the Court cites the Code of Alabama, 1975, Section 34r-28A-1 et seq., and the Opinion of the Attorney General of the State of Alabama dated February 9, 1979, and addressed to the chairperson of the Alabama Board of Examiners for Speech Pathology and Audiology. The Opinion of the Attorney General was admitted into evidence as Defendants’ Exhibit # 4.

“The Opinion states in part:

“ ‘The authority granted (in the state law) for audiologists to engage in “hearing aid evaluation and application” for the purpose of ameliorating or modifying hearing disorders in individuals would clearly seem to include the fitting and dispensing of hearing aids. In fact, it would not appear possible for an audiologist to perform the functions authorized by the statute without being able to fit patients with a hearing aid.’

“On the other hand, it is the opinion of the Court that UAB may not engage in the sale of hearing aids solely for the purpose of raising revenues. Plaintiffs’ Reply Brief contains numerous cases supporting this general proposition. Although most of the cases are old and some have either been distinguished in other cases or had contrary opinions rendered in similar fact situations in their own jurisdiction, the general proposition of law still seems to be appropriate. The funds which UAB uses would, at least in the first instance, be derived from taxes and/or tax exemptions. Tax revenues are to be used for public, not private, purposes. It is not easy to determine in every case whether a benefit conferred upon many individuals in a community can be called a public service within the meaning as applied to tax revenues. However, in general it may be said that the promotion by taxation of the private interests of many individuals is not a public service within that meaning as applied to tax revenues. (Opinion of the Justices (1892) 155 Mass. 598, 15 L.R.A. 809, 30 N.E. 1142.) In Mackey v. Reeves (1919) 42 S.D. [340] 347, 175 N.W. 359, the Court in interpreting a constitutional provision stating:

“ ‘Taxes_shall be levied and collected for public purposes only;’

stated:

“ ‘An appropriation of public moneys to be constitutional must be for some use or object which, directly or indirectly, in some degree or manner will materially aid in the proper functioning of some governmental agency, and in so doing will serve a public purpose.’

“Further, in Rippe v. Becker (1894) 56 Minn. 100, 22 L.R.A. 857, 57 N.W. 331, the Court said:

“ ‘The police power of the state to regulate a business does not include the power to engage in carrying it on.’

“Section 35 of the Alabama Constitution of 1901 states:

“ ‘That the sole object and only legitimate end of government is to protect the citizens in the enjoyment of life, liberty, and property, and when the government assumes other functions it is usurpation and oppression.’

“While the Court has not found a case which specifically deals with this language, two other cases cited by Plaintiffs may be mentioned. In Opinion of the Justices (1919) 118 Me. 503, 106 A. 865, the Court stated:

“ ‘The State cannot enter upon a commercial enterprise, however alluring the prospect, and tax the people for its promotion _ In other words, a state is singly a political unit, and not a business corporation, except incidentally to further its political purposes.’

“And in McCullough v. Brown (1894) 41 S.C. 220, 23 L.R.A. 410, 19 S.E. 458, this question was discussed as follows:

“ ‘Although there may be no express restrictions contained in a state Constitution forbidding the imposition of taxes for any other purpose than a public purpose, yet such a restriction must necessarily be implied from the very nature of civil government; and hence the legislative department, under the general power of taxation conferred upon it, cannot impose any tax except for some public purpose. Upon the same principle it seems to us clear that any act of the legislature which is designed to, or has the effect of, embarking the state in any trade which involves the purchase and sale of any article of commerce for profit, is outside and altogether beyond the legislative power conferred upon the general assembly by the Constitution, even though there may be no express provision in the Constitution forbidding such an exercise of legislative power. Trade is not, and cannot properly be, regarded as one of the functions of government. On the contrary, its function is to protect the citizen in the exercise of any lawful employment, the right to which is guaranteed to the citizen by the terms of the Constitution, and certainly has never been delegated to any department of the government.’

“While it is the opinion of the Court that UAB may not engage in the sale of hearing aids solely for the purpose of raising revenues, UAB does have the right, authority and duty to provide an educational opportunity for its students and it is granted a wide latitude in the establishment of the type of curriculum it offers and the requirements thereof. Code of Alabama 1975, Section 16-47-1, states:

“ ‘The governor and the state superintendent of education, by virtue of their respective offices, the trustees heretofore appointed from the different congressional districts of the state under the provisions of section 264 of the Constitution and such other members as may be from time to time added to the board of trustees and their successors in office are constituted a body corporate under the name of “the board of trustees of the University of Alabama,” to carry into effect the purposes and intent of the congress of the United States in the grant of lands by the act of April 20, 1818, and of the act of March 2, 1819, to this state, to be by it held and administered for the benefit of a seminary of learning.’

“Section 16-47-2 then says:

“ ‘Such corporation shall have all the rights, powers and franchises necessary to or promotive of the end of its creation and shall be charged with all the corresponding duties, liabilities and responsibilities.’

“As will be noted later, it is important that the University of Alabama System is a corporation with the requisite power of a corporation. Section 16-47-34 refers to the powers of the university’s board of trustees and says:

“ ‘The board of trustees has the power to organize the university by appointing a corps of instructors, who shall be styled the faculty of the university, and such other officers as the interest of the university may require; ... to fix their salaries or compensation, ... to institute, regulate, alter or modify the government of the university, as it may deem advisable; to prescribe courses of instruction, rates of tuition and price of board and regulate the necessary expenses of students; and to confer such degrees as are usually conferred by similar institutions. It may delegate to the faculty of the university, or other officers, such powers and functions in the government of the students and in the administration of the affairs of the university as it may deem proper; . . . ’

“Since the Department of Biocommunication is a joint department of the schools of dentistry and medicine, the Court also references the authority of the board of trustees of the University of Alabama to maintain and operate the schools of dentistry and medicine and to set, establish and maintain standards of scholarship and teaching in accordance with certain national standards (Section 16-47-54 and Section 16-47-94.).

“Counsel for the Plaintiffs introduced UAB’s 1980-82 Graduate School Bulletin (Plaintiffs’ Exhibit # 4) to show that ‘the Department of Biocommunication does not currently offer a graduate degree program.’ (p. 64) The Bulletin goes on to state: ‘However, it does offer several graduate level courses of interest to students in other degree programs, and available to any qualified student.’ (p. 64) Furthermore, the testimony of Dr. Fletcher and Dr. Eisele indicated that UAB intended to create a graduate level program which would instruct approximately 18 students at one time in various levels of graduate work. Dr. Eisele was hired because of his expertise in the area of teaching and research in the dispensing of hearing aids and his ability to develop such a program at UAB.

“[I]t is the opinion of the Court that UAB has the authority to establish educational programs related to audiology and to set the standards and course curriculum in connection therewith. Since the practice of audiology includes the dispensing of hearing aids, the Court finds that UAB may instruct its students in the various aspects of testing, fitting, and dispensing of hearing aids.

“It is therefore apparent, from the testimony of experts of both parties, that if patients are sent to private hearing aid dealers, they do not generally return to the university clinics for follow-up evaluations and rehabilitation.

“The failure of the patients to return to the university clinic has several negative impacts on the educational program offered by a clinic. The student loses the opportunity to engage in the hearing aid fitting process and in the post-hearing aid fitting rehabilitation and management of patients in order to observe the consequence of their work and receive feed-back from the patients.

“An additional consideration is the research aspect of a university’s program. Dr. Fletcher holds several patents on hearing aid and related devices and is engaged in on-going research in this field. The follow-up aspects of patient care were shown to be important parts of a research program.

“The Court finds that, from the testimony and evidence given in this case, there were ample reasons for the Defendants to change their procedure and methods of dispensing hearing aids and therefore the Defendants did not act in an arbitrary or capricious manner, or in bad faith, in beginning to dispense hearing aids to the patients of the university clinic.

“The argument by which Plaintiffs wish to limit the Defendants’ dispensing of hearing aids to indigent patients reaches the final point for determination in this case. If the Defendants have a right to dispense hearing aids in the university clinic as a proper exercise of the teaching curriculum, may the hearing aids be sold to patients, thus bringing the Defendants into competition with the Plaintiffs? It is noted that the Plaintiffs and Defendants are already in some form of competition for the services rendered in connection with the initial testing of the patient to determine the nature and extent of the hearing impairment and that fees are charged for such services. The Plaintiffs, however, have not challenged this practice or service.”

After an extensive discussion of the authorities relating to the issue presented, the decree continues:

“The Court concludes that the sale of hearing aids by the Defendants is incident to the education program of UAB and that the Temporary Restraining Order which was granted on the 26th day of November, 1980, and continued to date, is due to be dissolved. It should be noted that the Court, at the beginning of this opinion, stated that, in its opinion, UAB could not engage in the sale of hearing aids, solely for the purpose of raising revenues, and therefore, it is the opinion of the Court that UAB may only engage in the dispensing and sale of hearing aids so long as it remains incident to its educational program and is not a purely revenue generating program.”

Admittedly, Plaintiffs’ constitutional attack is highly persuasive. The prohibition of § 35 is not to be taken lightly. The “compelling need” criterion for governmental involvement in profit-making ventures mandates that each challenged activity undergo careful scrutiny on a case by case basis to avoid the constitutional “usurpation and oppression” admonition.

We emphasize that had the trial court found that the commercial aspect, rather than the instructional aspect, was the principal factor in the sale of the hearing aids, and if the evidence supported such a finding, then we should not hesitate to embrace Plaintiffs’ constitutional challenge.

We believe the evidence before us, however, amply supports the conclusion that the dispensing of hearing aids, although in the broadest sense it is in competition with private enterprise, is a function which is reasonably related to and promo-tive of the educational, research, and service mission of a modern university.

Stated another way, the trial court’s finding that “Defendants did not act in an arbitrary or capricious manner, or in bad faith, in beginning to dispense hearing aids to the patients of the university clinic,” is sustainable as having an ample evidentiary basis in the record. Therefore, the judgment with respect to the issue presented on appeal is affirmed.

The Cross Appeal

Taken literally, the language of ARCP 65.1 seems to support the Cross Appellants’ position. It is true that the trial judge dissolved the injunction and discharged the principal and sureties on the injunction bond in a single decree adjudging the issues as framed and presented on the merits. That is to say, the prevailing party — the party against whom the injunction was imposed for slightly less than four months— was not given an opportunity to proceed by motion to establish and enforce the principal’s and/or sureties’ liability on the injunction bond.

Upon due-consideration, however, we believe the particular circumstances require our affirmance of the trial court’s action with regard to the bond.

Ordinarily, a petition for a temporary restraining order or a preliminary injunction addresses itself to the sound discretion of the trial court, and its grant preserves the status quo between the affected parties, pending the adjudication of the issues on the merits. While the injunction, in a technical sense, cannot be termed an ancillary proceeding, it partakes of the nature of a proceeding which is outside or beyond the main case and the issues presented for adjudication therein. In such cases, the post-adjudication procedure prescribed by ARCP 65.1 is obligatory and is a matter of right of the moving party.

But this ordinary situation contemplated by the Rule is not the situation now before us. The only ultimate relief sought by Plaintiffs in the instant declaratory judgment action is one for injunction. The issue of injunction is the issue for adjudication on the merits. We hold that, under the court’s equity jurisdiction, its discretionary power with regard to the awarding of damages pursuant to an injunction bond has been exercised in substantial compliance with the spirit of Rule 65.1.

Although Plaintiffs effectively prevented operation of an incidental portion of Defendants’ activities for almost four months, it certainly was not an abuse of discretion for the court to find, as is implicit from the tenor of the court’s final judgment, that the suit, including the prayer for injunctive relief, had been brought in good faith. Moreover, a consideration of the totality of the circumstances and a balancing of the equities may justifiably have led the court to the informal conclusion that a relatively brief cessation in the dispensing of hearing devices did not so materially encumber the clinic’s overall operation as to warrant an award of damages under the bond. H & R Block, Inc. v. McCaslin, 541 F.2d 1098 (5th Cir. 1976).

Furthermore, the presumption of correctness accorded the trial court’s exercise of discretion in such matters is strengthened by its order denying the motion to modify that portion of its final decree.

AFFIRMED AS TO THE APPEAL.

TORBERT, C. J., and MADDOX, FAULKNER and SHORES, JJ., concur.

ALMON and BEATTY, JJ., dissent.

EMBRY, J., recuses himself.

ADAMS, J., not sitting.

AFFIRMED AS TO THE CROSS-APPEAL.

MADDOX and FAULKNER, JJ., concur.

ALMON, SHORES and BEATTY, JJ., concur in the result.

TORBERT, C. J., dissents.

EMBRY, J., recuses himself.

ADAMS, J., not sitting.

TORBERT, Chief Justice

(concurring as to the appeal; dissenting as to the cross appeal).

I agree with the majority as far as its decision pertains to the affirmance of the lower court’s decision that “Defendants did not act in an arbitrary or capricious manner, or in bad faith, in beginning to dispense hearing aids to the patients of the university clinic.” I do not agree, however, with the majority’s decision in the cross appeal. The discharge of the principal and sureties on the injunction bond prevents cross appellants from pursuing an action for damages against the bond.

ARCP 65.1 gives the trial court the authority to determine liability on the bond, if any, by motion without the necessity of an independent action. “On the other hand, the rule is permissive and does not prohibit the bringing of an independent action against the surety .... ” 11 Wright & Miller, Federal Practice and Procedure, § 2971 (1973). “While the rule creates a motion procedure for enforcement of the liability of surety, the right to an independent action continues.” 2 Lyons, Alabama Practice 65.1.2 (1973). This means that the trial court may go ahead and have a hearing on the liability of the party who requested the ex parte injunction, if it so desires, but if the court does not wish to go ahead and consider this issue, the party against whom the injunction was issued may still seek damages against the bond through an independent action. The discharge of the principal and sureties by the trial court denies the cross appellants this right.

As the record shows, the injunction was dissolved by the trial court. “For an injunction to be dissolved, it must be established there is no equity, in effect, that the action is without merit.” Satellite Broadcasting Co. v. Tingley, 286 Ala. 571, 577, 243 So.2d 677 (1971). “The [injunction] is obtained upon an ex parte hearing and the bond is required as a protection against the abuse of this extraordinary process and to prevent oppression by its use. The bond is the contract of the parties executing it, the statute prescribes its terms and conditions, and the right of action arises immediately upon its breach.” Miller v. Wood, 257 Ala. 594, 60 So.2d 353 (1952).

Our courts have stated:

“By filing the application and the required bond the applicant takes his chance that there may be dissolution upon motion. He has, by making the bond, entered into a contract that in the event there is dissolution the bond becomes due for damages resulting from the issuance of the injunction. Upon breach of the condition of the bond a right of action thereon arises immediately. In requesting the extraordinary relief of a temporary injunction and making the bond the applicant in colloquial language ‘pays his money and takes his chances.’ There is no right of defense on the ‘merits’ to the action for damages on the bond after ‘dissolution’ of the injunction.”

Union Springs Telephone Co. v. Green, 47 Ala.App. 427, 255 So.2d 896 (1971) (citations omitted). See, National Surety Co. v. Citizens’ Light, Heat, & Power Co., 201 Ala. 456, 78 So. 834 (1918).

Therefore, the trial court should have recognized the right of the cross appellants to seek damages under the bond. While the trial court could have found that no damages were warranted, I believe the trial court had to give the cross appellants the opportunity to prove their damages, if any, incurred by the imposition of the injunction. The trial court could have given the cross appellants the opportunity by motion under ARCP 65.1 or could have required an independent action. Therefore, I believe the release of the principal and sureties was improper because it denies cross appellants a cause of action which they are entitled to pursue. Consequently, I would reverse as to the cross appeal and give cross appellants the opportunity to entertain an action to prove any damages incurred during the period that the injunction was in force.

BEATTY, Justice

(dissenting as to the appeal (80-601)).

This decision gives a blank check to a public institution of learning to engage in a commercial enterprise under the guise that it is “incidental” to the educational process, in violation of the Alabama Constitution, Section 35.

ALMON, J., concurs.

      . Among the treatises reviewed are 14 C.J.S., Colleges and Universities, § 6 (1939); and 15A Am.Jur.2d, Colleges and Universities, § 9 (1976). Also referenced is the case of Iowa Hotel Assoc. v. State Board of Regents, 253 Iowa 870, 114 N.W.2d 539 (Iowa 1962).


source: Caselaw Access Project

author: MOISE, Justice.

license: Public Domain

text:
    215 La. 485
    STATE ex rel. CODE v. CODE.
    No. 38838.
    Supreme Court of Louisiana.
    April 25, 1949.
    Rehearing Denied May 31, 1949.
    Edward J. McShane, Claude J. DeBaron-celli, Arthur C. Reuter, New Orleans, for appellant.
    Joseph M. Bowab, New Orleans, Waverly A. Henning, Gretna, for appellee.
   MOISE, Justice.

This is a mandamus proceeding to compel the Clerk of Court and Ex-officio Recorder of Mortgages and Registrar of Conveyances for the Parish of Jefferson, to cancel the inscription of a $4,000 homestead exemption, recorded at the instance of Harry E. Code, the respondent, the day before certain real property owned by him was seized by his ex-wife, the relatrix, under a writ of fieri facias, to satisfy judgments in the sum of $2,065, representing past due alimony for the support of herself and their minor child. The property was adjudicated to a third person for the sum of $7,500, and the sheriff now holds these funds and refuses to pay to relatrix any portion thereof, because of an outstanding recorded mortgage in the sum of $4,000, etc., in favor of respondent’s mother, and the claimed homestead exemption.

The district judge, having made the mandamus peremptory, the respondent has appealed.

The relatrix brought this proceeding on the ground that the inscription of the homestead exemption is null and void and was recorded with the intent to defraud her and her minor child; and that the respondent is not entitled to the homestead exemption claimed because he is not the head of a family and his mother is riot his dependent.

The respondent argues that the remedy invoked by the relatrix is improper and cannot he taken where one has another remedy at law; and that the relatrix is seeking by way of a summary proceeding, directed against a public officer, to try an issue of law and fact (respondent’s right to claim the homestead exemption) with respondent, against whom no relief is requested. An exception of no right or cause of action was filed by respondent in this Court.

In support of his argument, the respondent, relies upon the case of Raymond v. Villere et al., 42 La.Ann. 488, 7 So. 900. In that case, relator sought by mandamus to compel the Recorder of Conveyances for Orleans Parish to cancel from his records the inscription showing ownership of real estate in the persons made co-defendants. Relator’s contention was that he had formerly owned the property but had transferred it to the City of New Orleans, which property the municipality still owned; that certain judgment creditors of the relator had seized the property and had become the adjudicatees, and that they were in possession and enjoying the revenues therefrom; that the sales made to the parties co-defendant were absolute nullities, since the property sought was publicly recorded in the -name of the City of New Orleans. The Court stated:

“It is manifest that, from his own statements, the plaintiff has no interest, and discloses no cause of action, as he had ceased to be the owner, and is vested with no mandate to champion the rights of the city, which, if they be trodden upon, will have the privilege of revendication.”

The Court further stated that, even if the relator had some interest, his action was palpably one in disguise, to cancel the title standing in the name of others to real estate upon which the court would necessarily have to pass, for the inscription could not be cancelled unless the titles were previously pronounced bad, and held that

“Ingrafting ordinary suits, in-which titles to real estate are involved, on a summary proceeding against an officer to require the execution of a ministerial duty, is not allowable. * * * ”

The foregoing case has no application to the one presently being considered by us because the title to real estate is not involved, and the wife and child, as seizing creditors, have a real interest in the suit— the cancellation of the inscription against the property — as it is because of the re-cordation of the claimed homestead exemption their rights as seizing creditors would be defeated because the remaining proceeds from the sale of the property would not be sufficient to satisfy their judgments.

The question presented appears to be res nova — may a divorced wife, a judgment creditor of her husband (for past due alimony for support of herself and their minor child), invoke mandamus proceedings against the Clerk of Court and Ex-officio Recorder of Mortgages and Registrar of Conveyances, and her former husband, attacking the validity of a homestead declaration filed by her ex-husband (the inscription of which was allegedly made to prevent her recovery of a part of the proceeds of the sale of the husband’s property in satisfaction of her judgment) on the ground that the divorced husband was not entitled to the homestead exemption.

Article 841 of the Code of Practice reads:

“The court to which the complaint is addressed, if it thinks there is ground for interposing its authority, shall issue an order, addressed to the party or to the inferior judge against whom the complaint is made, by which he shall be directed to do what has been demanded of him, or show cause to the contrary, within a certain time after the service of the order, to be fixed by the court.” :

The district court, in this instance, ordered the ■ recorder and the respondent to cancel the inscription of the declaration of homestead, or to show cause why it should not be cancelled. If respondent or the re-corderer gave sufficient reasons why the inscription should not have been cancelled, the relatrix’- complaint should have been dismissed, according to the provisions of Article 842 of the Code of Practice, which provides:

“If, on the ■ day-assigned for answering the'order, the party or judge' to whom it is directed answers and states sufficient reason to justify his conduct,' the complaint shall be dismissed, and the petitioner sentenced to pay costs.”

The value of the remedy of mandamus in the instant case is wholly dependent upon the fact of the granting of the relief where the codal provisions'are fairly interpreted, and justly, with an even hand, fully and fearlessly enforced.

Article 830 of the Cpde of Practice provides, in part:

“The object of this order is to prevent a denial of justice, * * * and it should therefore be issued in all cases where the law has assigned no relief by the ordinary means, and where justice and reason require that some mode should exist of redressing a wrong, or .an abuse of any nature whatever.”

From this article of the Code, it would seem that the lawwriters had in mind cases of the identical factual situation as we have here.

Article 831 of the Code of Practice provides, in substance, that the judge may, in his discretion, issue a writ of mandamus, even when the complainant hás other means of relief, “if' the slowness of ordinary legal procedure .would be likely to cause such delay as to hamper the administration of justice.” If these proceedings had to follow the course of an ordinary suit, wrong and injustice might be perpetrated upon the minor child and her mother.

In reviewing prior jurisprudence established by this Court, we find State ex rel. Brenner v. Noe, 186 La. 102, 171 So. 708, 712, where- a mandamus proceeding, was taken to compel the Governor to cancel two certain mineral - leases executed and covering the water bottoms of ■ lands in Caddo and Bossier .Parishes, and also,, to -execute a mineral lease of the lands of the relator. Coupled with the mandamus proceeding was an action of nullity, whereby the relator sought to have the two leases declared null. The Court sustained the exception of improper cumulation of actions; the writ-'óf mandamus “being summary in its nature, no citation issues and the litigant must file his answer with his exceptions on the return day fixed by the court, unless granted further time to plead. Shaw v. Howell et al. 18 La.Ann. 195; State ex rel. Louisiana Trust & Savings Bank v. Board of Liquidation of State Debt et al., 135 La. 571, 65 So. 745. On the other hand, the suit to .cancel.a contract affecting realty, as in the case at bar, must be by the ordinary action, necessitating citation and service of process and the ordinary legal delays. Calcasieu Building & Loan Ass’n v. Goudeau et al., 182 La. 247, 161 So. 599, and cases therein cited.”

In State ex rel. Macheca v. Dunn, Recorder of Mortgages, et al., 148 La. 460, 87 So. 236, 241, an uncertified copy of a New York judgment for alimony had been recorded by Mrs. Macheca, accompanied by her affidavit alleging that the judgment had been rendered. Mr. Macheca, by mandamus, sought to compel the recorder, of mortgages to cancel the inscription of this instrument from the records of that office, which inscription operated as a judicial mortgage against him. In holding that the appellant was entitled to the relief prayed for, the Court stated:

“It is well settled that mandamus is the proper remedy for compelling the recorder to cancel an illegal or unauthorized inscription purporting to operate as a mortgage. Savage v. Holmes, 15 La.Ann. 334; State ex rel. Deblieux v. Recorder, 25 La.Ann. 61; Lanaux v. Recorder of Mortgages, 36 La.Ann. 974; State ex rel. Busha’s Heirs v. Register, 113 La. [93] 98, 36 So. 900.

In Savage v. Holmes, Recorder of Mortgages, et al., 15 La.Ann. 334, plaintiff had entered into a written contract with -a builder for the erection of a house. Upon the completion of half the work (installment payments having been made as the work progressed) the builder defaulted and left the State. The plaintiff, being without means to pay for the additional cost of completing the building, applied to the Recorder of Mortgages to cancel and erase the inscription of the building contract, so she could effect a loan by mortgaging the property. Judgment was rendered ordering the erasure of the building contract but appellants (who evidently were creditors) sought its reversal on numerous grounds. In holding that mandamus was the proper remedy to compel a ministerial officer to perform a purely ministerial act, the Court stated:

“Numerous cases in this court, as well as the daily practice of the District Courts, might be referred to in support of the summary remedy by rule or mandamus, ,to compel the Recorder of Mortgages to erase inscriptions. All that the courts require in such cases is, that the parties in interest should have notice of the application, in order that their rights, may be protected.
“The plaintiff, by her petition, asks for nothing but the erasure of the inscription of the contract. Her remedy is against the Recorder of Mortgages to compel that officer to perform a purely ministerial duty. True, she gives notice of the application to all those who have, or pretend to have, an adverse interest, but she makes no demand of them, and asks for no judgment against them.
“Mandamus is the proper remedy to compel a ministerial officer to perform a purely ministerial act.”

It is observed that in most cases under our jurisprudence where mandamus is sought for the erasure of an inscription, the inscription operates as a cloud on the title to the property involved. While this is not true in the case under consideration, nevertheless, mandamus is the proper remedy to compel the ministerial officer to perform a purely ministerial act. However, in order for the Court, in this case, to order this purely ministerial act performed, we must first determine whether respondent is entitled to the homestead exemption.

The pertinent language of Article 11, Section 1 of the Constitution of 1921, relating to “homestead exemptions,” provides that “ * * * every head of a family, or person having a mother or father or a person or persons dependent on him or her for support,” is entitled to the right to claim the benefits thereof.

All expressions of the Court on “homestead exemptions” are to the effect that the exemption is granted not so much in favor of the head of the family as in favor of the dependent members thereof. The exemption of homestead rests upon the obligation to support the person to whom support is due and that is a higher obligation on the part of the debtor than the payment of his debts. The object is to secure a home beyond the reach of financial misfortune, around which gathers the affection of the family, the greatest incentive to virtue, to honor, and to industry. Hebert v. Mayer and Sheriff, 48 La.Ann. 938, 20 So. 170. “The exemption of the homestead from seizure is a law of public policy in our Constitution. * * * If the constitutional requirements could be obviated by disguising an act of mortgage in the form of a sale with the right of redemption, these provisions enacted for the protection of the dependents of every head of a family might as well have been omitted from the Constitution.” Becker v. Hampton, 137 La. 323, 68 So. 626, 628.

An examination of the evidence herein is conclusive as to the finding of fact by the district judge that “Respondent, Harry E. Code, sets out that his mother is residing with him and is depending upon him for support. All of the evidence tends to show the contrary. He was depending upon his mother for support rather than he supporting her.”

The summary method by which the district judge disposed of this case was proper and in accordance with law.

Judgment affirmed; respondent-appellant to pay all costs.

O’NIELL, C. J., takes no part.


author: McCALEB, Justice.

text:
    215 La. 497
    DONNELL v. GRAY.
    No. 38997.
    Supreme Court of Louisiana.
    April 25, 1949.
    Rehearing Denied May 31, 1949.
    W. M. Phillips, T. B. Wilson, Shreveport (W. S. Waller, Shreveport, of counsel), for plaintiff.
    John B. Files, Shreveport, for defendant-appellee.
   McCALEB, Justice.

This contest involves the ownership of certain oil well equipment, consisting of two five-hundred barrel steel oil tanks, one two-hundred barrel gun barrel and one Ideco pumping unit, of a total value of $1200. The property was purchased by plaintiff on February 21st 1947 from one A. Paul Gilbert, an oil operator, who had left it on the land of defendant during 1946 when an oil well, which he had drilled under a lease with defendant, was abandoned.

Defendant resisted the demand on the ground that he acquired ownership of the property in 1946, when Gilbert abandoned the oil well and he further alleged, in the alternative, that, in any case, he has a lien and privilege upon it to secure payment of $750 damages sustained to his land resulting from Gilbert’s negligent operation of the oil well.

A writ of sequestration was issued in the District Court and, after a hearing on the issues, there was judgment recognizing plaintiff’s claim to the property. Defendant brought the case to the Court of Appeal for the Second Circuit where the judgment was reversed, see 34 So.2d 648, a majority of that court holding that defendant had acquired ownership of the property as Gilbert had abandoned it by permitting it to remain on defendant’s land for over a year after the expiration of the oil lease. We granted certiorari.

At the outset, we notice that defendant, contending that the case presents solely questions of fact, asserts that the writ of review was improvidently granted and should not be considered.

There is no merit in this proposition. The writ was granted because we doubted the correctness of the legal conclusion of the Court of Appeal and not primarily to review its finding of fact. Moreover, it is settled that, where a writ of review has been granted, the court will consider the entire case just as though it was on an original appeal; our power of review is unlimited and questions of fact will be investigated as well as matters of law. Article VII, Section 11 of the Constitution; Stieffel v. Valentine Sugars, Inc., 188 La. 1091, 179 So. 6, Robichaux v. Realty Operators, Inc., 195 La. 70, 196 So. 23 and Madison Lumber Co. v. Helm, 202 La. 1061, 13 So.2d 349.

There is no substantial dispute over the facts of the case. In 1941, the defendant granted to A. Paul Gilbert an oil and gas lease upon land in Caddo Parish which contained a provision giving lessee the right, at any time during or after the expiration of the contract, to remove from the land all property and fixtures placed thereon by him. In due course, operations were begun and Gilbert was successful in bringing in a well which produced in paying quantities until some time prior to May 1946 (the exact date upon which production ceased is somewhat indefinite 'but it is a matter of little importance; it was either during the latter part of 1945 or early1 part of 1946). At any rate, Gilbert acknowledged, during the month of May 1946, that the well was no longer a producer because, at that time, he pulled the casing and removed all of his equipment except the two tanks and pumping unit involved in this suit. Thereafter, on June 1st 1946, defendant wrote to one Findley, whom he addressed as “Pumper for A. Paul Gilbert”, notifying him to vacate his property within fifteen days as the lease “heretofore executed to A. Paul Gilbert has expired and is abandoned” and advised him that, upon his failure to vacate, the necessary legal steps would be taken to effect his removal. Findley complied with the demand but Gilbert did not at any time thereafter attempt to remove the equipment from the land. However, on February 21st 1947, he transferred the disputed property, together with other equipment, to plaintiff for a stated consideration of $2750 in the form of a cash sale executed in Smith County, Texas.

The evidence shows that the real consideration for the sale was an advance by plaintiff to Gilbert of the sum of $2750 and that the latter was orally given ninety days in which to redeem the property. After the expiration of the period of redemption, plaintiff considered himself the owner of the equipment and, accordingly, in May 1947, went to defendant’s premises in Caddo Parish for the purpose of removing it. On his arrival, he found that the equipment had been fenced in and locked by defendant, and he was informed that the latter was holding it as security for damage to his land allegedly caused by the operations of Gilbert. Plaintiff left at that time without interviewing defendant. However, he returned in July or August and made demand on defendant for permission to remove the equipment, which was refused by the latter, who took the position that he would not turn over the property unless plaintiff paid him $500 to cover the alleged damage to his land. Defendant did not claim at that time, nor at any time prior to the filing of his answer to this suit, that he was holding the property as owner by virtue of Gilbert’s alleged abandonment.

The Court of Appeal was of the view that, inasmuch as the notice to vacate, which plaintiff sent to Gilbert’s pumper, “implied the demand to remove the equipment remaining” and inasmuch as Gilbert made no attempt whatsoever to claim ownership or remove his equipment thereafter,” there was an actual abandonment, coupled with an intent to abandon, which endured for a period of not less than fourteen months after the partial removal of equipment from the lease by the lessee”. In support of this conclusion, the court relied upon the jurisprudence of other states, which this Court approved in Standard Oil Co. of Louisiana v. Barlow, 141 La. 52, 74 So. 627, that provisions in an oil and gas lease conferring upon the lessee the right to remove machinery and fixtures placed on the leased premises “at any time” allows the lessee a reasonable time after the termination of the lease to effect the removal.

While we approve the interpretation placed on the removal provision of the lease by the Court of Appeal, we are not in accord with the ruling that Gilbert abandoned the equipment either in fact or in law. A fortiori, we believe that the Court erred in not taking into account the fact that defendant did not, prior to the filing of his answer, ever claim that he possessed the equipment as owner in consequence of Gilbert’s alleged abandonment—:for it is only in cases where a party possesses as owner that he is permitted to claim title by occupancy under the appropriate articles of the Civil Code.

Primarily, we doubt that the facts of the case justify a holding that Gilbert’s silence, coupled with his failure to remove all of the equipment from defendant’s land in May of 1946, constituted an abandonment of the equipment which had a value of over $1200. The finding of the Court of Appeal that the abandonment endured for a period of not less than fourteen months, after the partial removal of equipment from the leased premises 'by Gilbert, is not correct—indeed, it fails to give recognition to Gilbert’s sale of the equipment to plaintiff in February 1947 as an act of ownership, negating any presumption of abandonment which might have theretofore existed. Therefore, the period of Gilbert’s silence (from which the inference of abandonment is drawn) extended from May 1946 to February 1947 or less than nine months.

But, even though it be generously conceded that Gilbert’s failure to remove the equipment in May 1946 plus his subsequent inaction until February 1947 might be sufficient to warrant a presumption of abandonment, it does not follow that defendant became the owner during the period that the presumption subsisted. On the contrary, it is manifest that defendant did not acquire a title as he did not occupy and possess the equipment as owner but was admittedly holding it to secure the alleged damage he had sustained as a result of Gilbert’s operations.

As above stated, if a presumption of abandonment ever existed, it was conclusively rebutted by Gilbert’s sale to plaintiff in February of 1947. This sale was valid as Gilbert had the right to reclaim the equipment, even if inferentially abandoned, as long as his title thereto had not been lost by virtue of defendant’s adverse occupancy—the only method of acquisition by which defendant claims title.

Article 3412 of the Civil Code defines occupancy as a mode of acquiring property “by which a thing which belongs to nobody, becomes the property of the person who took possession of it, with the intention of acquiring a right of ownership upon it.” And Article 3413 declares that occupancy can only be a lawful mode of acquiring property so long as the thing in occupancy has no owner and “when it is retained by the acquirer with the intention of keeping it as his own property.”

Thus, it is clear that defendant never acquired a title as he did not possess the equipment as owner and never made claim as such until answer was filed in the suit. And then it was too late, as Gilbert had already reclaimed the property and had transferred it to plaintiff for valuable consideration.

Counsel for defendant further maintains that plaintiff should not prevail because the evidence shows that the purported sale of the equipment is really a mortgage and that, therefore, he is without title.

This contention is without merit for two reasons. In the first place, defendant, with no legal claim of ownership, is without right to question the validity of plaintiff’s title which is evidenced by a deed from Gilbert, the immediate owner. See Wolf v. Wolf, 12 La.Ann. 529, Long v. Klein, 35 La.Ann. 384 and Chronos Land Co. v. Crichton, 150 La. 963, 91 So. 408.

In addition, the evidence shows that plaintiff acquired title by purchase from Gilbert and that the latter was merely given a right to redeem the property within ninety days by returning the price. It was not a pignorative contract but a sale with the right of redemption, which is given specific recognition in our law. See Articles 2567 through 2575 of the Civil Code.

Finally, defendant contends that the sale is unenforceable as to him under Article 1922 of the Civil Code, since there was no delivery of the equipment.

Article 1922 of the Civil Code is wholly without application as defendant is not in the category of the third persons mentioned therein; he has neither title to nor a lien or privilege on the equipment.

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

O’NIELL, C. J., takes no part


text:
    215 La. 507
    STATE v. WILLSON.
    No. 39317.
    Supreme Court of Louisiana.
    April 25, 1949.
    Rehearing Denied May 31, 1949.
    Warren Hunt, Rayville, and Wedon T. Smith, Jonesville, for appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., D. W. Gibson, Dist. Atty., Harrisonburg, S. R. Thomas, Special Counsel Natchitoches, for ap-pellee.
   McCALEB, Justice.

Ccrinne Willson was indicted and tried for the murder of her husband. She was convicted of manslaughter and sentenced to serve four years in the penitentiary. Pier appeal embraces nine bills of exception.

The first bill was taken to the overruling of a motion to quash the indictment. This motion is founded on the theory that, since the indictment is not drawn in the short form authorized by Article 235 of the Code of Criminal Procedure and charges that the defendant “did feloniously, wilfully, unlawfully and of her malice aforethought did kill and murder * * * ”, it does not state the offense of murder as now defined by Article 30 of the Criminal Code.

The complaint is without merit. The forms outlined in Article 235 are permissive, not exclusive. The indictment contains all the essential ingredients of the crime of murder.

The other bills of exception are based mainly on the refusal of the court to hear evidence on a motion for a new trial pertaining to alleged prejudicial matters of which no complaint had been made at the time of their occurrence. For example, bills 2, 3 and 4 were taken to the court’s rejection of testimony on the motion for a new trial relative to the intoxication of two defense witnesses.

The trial judge was correct in declining, on the hearing of the motion, to notice alleged irregularities or admit evidence respecting complaints which should have been made at the trial. Article 510 of the Code of Criminal Procedure declares:

“To avail as ground for a new trial, any irregularity in the proceedings, not patent on the face of the record, must be objected to at the time of its occurrence and a bill of exceptions be reserved to the adverse ruling of the court upon such objection. Failure to reserve a bill at the time of the ruling operates as a waiver of the objection and as an acquiescence in the ruling.”

It appears that defense counsel were well aware of the intoxication of the two witnesses; yet no complaint or motion for continuance was made at the time the alleged injury occurred. The motion for a new trial cannot be employed as a substitute for objections which should have been made during the course of the trial. State v. Franks, 199 La. 259, 5 So.2d 765, and State v. Augusta, 199 La. 896, 7 So.2d 177.

Counsel for defendant, however, maintain that a new trial should be ordered under the fifth paragraph of Article 509 of the Code of Criminal Procedure, which sets forth the instances in which a new trial should be granted, viz.:

“5. Whenever, though as a matter of legal right the accused may not be entitled to a new trial, yet the judge is of the opinion that the ends of justice would be served by the granting of a new trial.”

Obviously, this provision pertains solely to the trial judge. It does not and cannot vest discretionary powers in this Court to order a new trial in the absence of legal error — as our jurisdiction in criminal cases extends to questions of law alone. Article VII, Section 10 of the Constitution. Additionally, Article 516 of the Code of Criminal Procedure restricts our appellate and supervisory jurisdiction, in reviewing the refusal of a new trial, to a consideration of matters of law.

Bill of exception No. 5 is a belated complaint respecting the length and schedule of the trial and falls in the same category as the bills above discussed.

Bills 6 and 7 are based on the purported objectionable remarks of counsel for the state in his closing argument to the jury. As no complaint was registered at the time the statements were made and since the remarks were not of the type constituting reversible error even though objection be not made, i.e., appeals to racial prejudice or comments relative to the failure of the accused to take the stand, they cannot be considered on the motion for a new trial.

Bills 8 and 9 were taken to the overruling of the motion for a new trial and in arrest of judgment. They present nothing for further discussion as they are founded on the propositions heretofore considered. The conviction and sentence are affirmed.

O’NIELL, C. J., takes no part.

       See also Article 502, Code of Criminal Procedure, which declares: “No error, not patent on the face of the record, can be availed of after verdict, unless objection shall have been made at the time of the happening of such error and unless at the time of the ruling on the objection a bill of exceptions shall have been reserved to such adverse ruling.'


author: MOISE, Justice. PER CURIAM.

text:
    215 La. 513
    TARVER v. ALLAUN.
    No. 38999.
    Supreme Court of Louisiana.
    April 25, 1949.
    Rehearing Denied May 31, 1949.
    Bullock & Bullock, Shreveport, for plaintiff.
    Malcolm W. Feist, Shreveport, curator ad hoc, for respondent.
   MOISE, Justice.

We granted a writ of certiorari to review the judgment of the Court of Appeal, Second Circuit, affirming the judgment of the district court of the Parish of Caddo, which sustained an exception of no cause or right of action filed on behalf of the defendant.

The facts disclosed are that the plaintiff granted to defendant an option to purchase two oil and gas leases on lands located in the State of Texas; that the option expired September 22, 1947; that the sum of $500.00 cash was deposited in escrow; and that this amount was to be returned to defendant upon his purchasing the said leases, otherwise the plaintiff was entitled to the said sum. The agreement reads:

“1st. First Party hereby sells to Second Party, for the consideration of Five Hundred Dollars cash an option to purchase the following two oil and gas leases covering lands in Hutchinson County, State of Texas, viz:
“(a) The Unphries lease covering 120 acres identified as the south 120 acres of Section 14, Book 5, Hedgecoke Survey; and
“(b) The Herring lease consisting of the west one-third of the east half of the J. P. Price Survey, embracing 160 acres.
“2nd. The Second Party shall have until midnight of Monday the 22nd day of September A.D., 1947, in which to exercise his right of purchase of the said two leases, upon the terms of the agreement verbally arrived at in the office of the said Notary Public, in the presence of the said Notary Public, the said First and Second Parties and G. L. Blaxton, on this the 5th day of September, A.D., 1947.
“3rd. If the said Second Party concludes to exercise his right of option for the purchase of the said two leases, then •the said first party obligates himself to thereupon convey to Second Party a merchantable title to the said leases, and in which event the said Second Party shall have ten days -immediately thereafter to have First Party’s title to the said leases examined and should it be revealed that First Party can not deliver to Second Party a merchantable title to. the said leases, then, and then only, shall Second Party recover the said sum of Five Hundred Dollars paid for the said option; otherwise, and for no other reason, Second Party shall have no right in the said money paid for this option, but the said sum shall immediately become the unconditional property of the said First Party.
“4th. Should Second Party exercise his right of option to purchase the said two leases, upon so advising First Party that he is then ready to close the deal, then and thereupon First Party shall execute proper assignment of the said two leases, upon Second Party entering into a written contract with First Party covering the real consideration of the sale or assignments of the said two leases, in accordance with the verbal understanding between the parties hereto, as hereinabove referred to, which assignments and contract as specifically referred to in this paragraph shall be placed in escrow with James G. Palmer, to be held by him until Second Party advises him, and within the period herein specified for examination of the titles, that he accepts the said titles to the said leases as being merchantable, whereupon the said escrow agent shall deliver the said assignments to Second Party and the contract forming the real consideration of the purchase price of the said two assignments to First Party.”

The plaintiff sues to recover the sum of $500.00, the amount deposited in escrow, impleading as defendants, W. E. Allaun, the grantee, and James G. Palmer, the escrow agent, alleging that defendant Al-laun failed to purchase said mineral leases within the term of the agreement; and that defendant objected to the escrow agent paying to plaintiff this sum of money.

The defendant filed an exception of no cause or right of action, which the district court sustained, and dismissed plaintiff’s suit. The Court of Appeal affirmed said judgment, holding as did the district court that “ * * * the agreement to sell is subject to the rule that where it is agreed that a contract will be reduced to writing, it is not enforceable until the written instrument is executed.”

This conclusion is not applicable because under Article 1934, R.C.C., Section 5, “ * * * where the parties, by their contract, have determined the sum that shall be paid as damages for its breach, the creditor must recover that sum, but is not entitled to more. * * * ”

This is not a suit for specific performance or damages on an executed contract. It is a suit on a contract entered into by the parties in which a sum of money was deposited in escrow as the measurement of damages for the failure to perform. The petition does disclose a cause and a right of action.

For these reasons, the judgment appealed from is annulled and set aside, the exception of no cause or right of action is overruled, and the case is now ordered remanded to the district court for further consideration, consistent with the views herein expressed. All costs are to await the final determination of this litigation.

O’NIELL, C. J., takes no part.

On Application for Rehearing.

PER CURIAM.

After careful consideration of the whole record in this case, and the contentions of counsel on application for rehearing, we are of the opinion that the decree rendered on original hearing is correct. The application for rehearing is therefore denied.


author: HAWTHORNE, Justice.

text:
    215 La. 518
    CONTINENTAL OIL CO. v. LANDRY et al.
    No. 39000.
    Supreme Court of Louisiana.
    April 25, 1949.
    Rehearing Denied May 31, 1949.
    Lestage .& Arnette, Jennings, Herold, Cousin & Herold, Shreveport, for defendant and appellant.
    J. Frank Smith, Joseph Onebane, Lafayette, amici curiae.
    Thompson, Lawes & Cavanaugh, Lake Charles, for defendants-appellees.
   HAWTHORNE, Justice.

This is a concursus proceeding provoked by the Continental Oil Company, an oil purchaser, and involves a 1/32 royalty. The company deposited in the registry of the court funds representing the purchase of the royalty oil in question and cited the adverse claimants thereto to appear and assert their respective ownerships to. the royalty and to the funds so deposited.

The pertinent facts necessary for our decision in the instant case are as follows:

On August 21, 1935, Frank Eloi Landry, the then as well as the present owner of three distinct, non-contiguous tracts of land situated in Jefferson -Davis Parish, by one act of conveyance sold, conveyed, and transferred to William D. Jaenke and Earl C. Miller “One Thirty-second (l/32nd) of the: whole of -any oil, gas or other minerals, except sulphur, on and under and to be-produced from said lands, delivery of said royalties to 'be made to the purchaser herein in the same manner as is provided for the delivery of royalties by any present or future mineral lease affecting said lands”. The property is described in this royalty deed as follows:

“Northeast Quarter of Northwest Quarter (NEJ4 of NWV4) °f Fractional Section Thirty-six (36), Township Seven (7) South, Range Three (3) West, Louisiana Meridian, containing Forty (40) acres, more or Jess. Also Lots Six (6), Seven (7), and Ten (10) of East half (E¡/j) of Fractional Section Twenty-five (25), Township Seven (7) South, Range Three (3) West, Louisi-ána Meridian, each of said lots containing Ten (10) acres.”

The three separate, distinct, noncon-tiguous tracts as described in this instrument are these:

(1) NE}4 of NW(4 of Fractional Section 36, Township 7 South, Range 3 West;

(2) Lots 6 and 7 of Ei/^ of Fractional Section 25, Township 7 South, Range 3 West, and

(3) Lot 10 of the same section, township, and range.

On May 24, 1943, Frank Eloi Landry, a5 owner of these tracts, granted a mineral lease on these lands, as well as on other property, to Mordelo L. Vincent, Jr., and L. L. Welch. At the time this lease was granted, appellees, Lloyd Noble, W. A. Grapes, D. R. Snow, Earl C. Miller, and William D. Jaenke, were the owners of a 1/32 mineral royalty interest which had been acquired by them or their authors in title from Frank E. Landry on August 21, 1935.

• Barnsdall Oil Company, operating under this lease, obtained the production of oil and gas in paying quantities prior to August 21, 1945, or within 10 years from the date on which the royalty deed to Miller and Jaenke was executed, by the completion of a producing oil we'1'1 upon one of the non-contiguous tracts, that is, Lot 6 of the Ey£ of Fractional Section 25, Township 7 South, Range 3 West.

Thereafter, in September or October, 1945, more than 10 years after the execution of the royalty deed, Barnsdall Oil Company obtained the .production of oil in 'paying quantities by drilling a well on one of the other non-continguous tracts, described in the royalty deed as the NE% of the NW% of Fractional Section 36, Township 7 South, Range 3 West.

Appellant, the 'landowner Landry, contends that the 1/32 mineral royalty, insofar as it relates to and affects the NE1/^ of the NWi/4 of Fractional Section 36, Township 7 South, Range 3 West, one of the non-contiguous tracts described in the royalty deed, on which the second producing well was drilled, expii-ed and terminated on August 21, 1945, as more than 10 years had elapsed since the execution of the royalty deed on August 21, 1935, without any production of oil, gas, or other minerals from this tract, and pleads in bar of all rights, claims, and demands of Earl C. Miller and the other adverse claimants to the 1/32 royalty interest insofar as it relates to this tract, or to the funds produced from said interest, the prescription of 10 years liberandi causa.

Appellees, Earl C. Miller et ah, contend that the 1/32 royalty acquired from the ■landowner, Landry, on August 21, 1935, is still in effect for the reason that “The obligation created by the royalty deed in favor of Earl C. Miller, et al., being conditioned upon the production of oil, gas, or other minerals from the lands covered thereby, and such production having been obtained from a portion of said lands prior to the expiration of ten (10) years from the date of said deed, the rights created thereby have never been terminated, but on the contrary have become absolute.”

The lower court overruled the plea of prescription of 10 years liberandi causa filed by the landowner Landry, and decreed that the funds deposited in the court belonged to Jaenke, Miller, Noble, Grapes, and Snow, and that these parties were the owners of the 1/32 royalty interest in dispute.

From this judgment Frank Eloi Landry has appealed to this court.

The question presented by this appeal, res nova in this state, is a question of law, that is: Under a royalty deed executed by the landowner conveying royalty rights in non-contiguous tracts, does the production of minerals on one of the tracts within 10 years from the date of the deed prevent the running of the liberative prescription of 10 years as to the royalty rights on the other tracts?

In Vincent et al. v. Bullock et al., 192 La. 1, 187 So. 35, this court held that the reservation of a royalty right to the oi'l, gas, and other minerals in a tract of land imposes upon the property a real obligation and is a species of real right running with the land, subject to the prescription of 10 years liberandi causa.

It is also well settled that this right is merely one to share in the production of oil, gas, and other minerals if and when they are produced from the property subj ect to the right. It is passive in its nature, and there is no obligation on the royalty owner to develop the property, nor does he have this right. All that he acquires is a right attached to the land, the right to receive his share of the minerals if and when they are produced. St. Martin Land Co. v. Pinckney et al., 212 La. 605, 33 So.2d 169; Union Sulphur Co., Inc., v. Lognion et al, 212 La. 632, 33 So.2d 178; Humble Oil & Refining Co. v. Guillory et al., 212 La. 646, 33 So.2d 182. His share of the minerals when they are produced is royalty. At the moment of the execution of the royalty sale, under our holding in Vincent et al. v. Bullock et al., supra, a species of real right is created, imposing a burden up-, on the land, which is subject to the prescription of 10 years liberandi causa. It is therefore from the land that the royalty owner receives his royalty, and, if there are several distinct, non-contiguous tracts of land, he receives the royalty separately from each of them. Production from one of the tracts is not production from the other non-contiguous tracts, and by such production the royalty owner would not receive royalty from them. Our conclusion in this case, therefore, is that the event — production— which would prevent the running of prescription under the Bullock case did not happen within 10 years as to the tract in controversy in this case, the NE]4 of the NW% of Fractional Section 36; therefore the royalty right has prescribed as to it.

In support of the opposite conclusion the appellees contend that, since the obligation created by the royalty deed in favor of Earl C. Miller et al. was conditioned upon the production of oil, gas, or other minerals from the lands covered thereby, and since such production was obtained from a portion of the lands prior to the expiration of 10 years from the date of the deed, the rights created thereby have never terminated, but on the contrary have become absolute. After careful consideration of this contention, we are of the opinion that the conclusion which we have reached better effectuates the principle of Vincent v. Bullock. The conclusion urged by appellees would produce an unnatural result in regard to the relative status of mineral rights and royalty rights in this state.

In the past this court has observed and stated that a mineral right is necessarily superior to a royalty right. The owner of the mineral right has the right of ingress to, and egress from, the land, the right to produce the minerals, the right to participate in the bonuses and delay rentals paid under the terms of any lease. On the other hand, the owner of a royalty right has none of these rights, nor is his consent even necessary for the execution of a lease by the mineral owner, his right being to share in production if and when it is had. Of these two rights it has been correctly said by one of the authorities on the oil and gas law of this state that the royalty right is but an appendage of the right of the mineral owner, and depends upon the continued existence of the right to which it is an appendage. It cannot have a life of its own, any more than could interest exist apart from the note or debt to which it is-attached. See Daggett, Mineral Rights in Louisiana (1939), p. 173.

In the instant case, -if these appellees had also -acquired, in the same instrument in which they acquired the 1/32 royalty, one-fourth of the minerals in addition thereto, under the authority of Lee et al. v. Giauque, 154 La. 491, 97 So. 669, production alone on Lots 6 and 7 would not have interrupted the running of the liberative prescription o-f 10 years as to the NE]4 of the NW1^ of Fractional Section 36, a non-contiguous tract, insofar as the mineral right or servitude was concerned. To hold that production on these lots prevented the running of such prescription where a royalty right is involved is, in effect, holding a royalty right to be greater than, or superior to, a mineral right, and this, as we have pointed out hereinabove, is not so. Moreover, in such case, mineral rights as to the NE1^ of the NWÍ4 of Fractional Section 36 would revert to the landowner by liberative prescription subject to an outstanding 1/32 royalty.

Furthermore, in the instant case to hold that the prescription of 10 years liberandi causa has not accrued because production was had on one of the non-contiguous tracts within 10 years from the date of the execution of the royalty deed, in our opinion, would be contrary to the land policy of this state, and such a holding might well serve as a basis for numerous methods of circumvention of that policy.

For the reasons assigned, the judgment of the district court, insofar as it recognized Lloyd Noble, W. A. Grapes, D. R. Snow, Earl C. Miller and William D. Jaenlce to be the owners of 1/32 royalty interest, is reversed, and it is ordered, adjudged and decreed that there be judgment herein in favor of Frank Eloi Landry, rejecting the demands of Lloyd Noble, W. A. Grapes, D. R. Snow, Earl C. Miller, and William D. Jaenke, and recognizing Frank Eloi Landry to be the owner of 1/32 royalty interest in the oil, gas, or other minerals except sul-. phur, and a royalty interest equal to 12^2% per long ton as to sulphur, in the following described property, situated in the Parish of Jefferson Davis, State of Louisiana, to-wit:

Northeast Quarter (NEj/L) of Northwest Quarter (NW}4) of Fractional Section Thirty-six (36), Township Seven (7) South, Range Three (3) West, Louisiana Meridian, containing forty (40) acres more or less.

It is further ordered, adjudged, and decreed that the funds resulting from the purchase of oil, gas, and other minerals produced from the hereinabove described property and deposited in the registry of the Fourteenth Juicial District Court, Parish of Jefferson Davis, be, and they are hereby, decreed to be the property of Frank Eloi Landry, and ordered paid to him by the clerk of the said district court.

In all other respects the judgment is affirmed.

Costs of this appeal are to be paid by the appellees.

HAMITER, J., concurs in the decree.

O’NIELL, C. J., takes no part.


author: FOURNET, Justice.

text:
    215 La. 529
    STATE v. WRIGHT.
    No. 39358.
    Supreme Court of Louisiana.
    April 25, 1949.
    Rehearing Denied May 31, 1949.

      Joseph C. Brocato, Shreveport, for defendant-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. É. Culligan, Asst. Atty. Gen., Edwin L. Blew-er, Dist. Atty., and Albert S. Lutz, Jr., Asst. Dist. Atty., Shreveport, for plaintiff-ap-pellee.
   FOURNET, Justice.

The defendant, Willie Wright, after his conviction but before sentence was imposed filed a motion in arrest of judgment, contending that the bill of information charging him with having on or about August 19, 1948, “committed simple burglary of the store and building located at 316 Strand Street, Shreveport, Louisiana, belonging to Tri-State Wholesale Produce Company, Inc.” is defective in that it fails to set out any offense known to law, and, more particularly, fails to state the facts necessary to bring the act with which he is charged within the definition of the crime of burglary as set out in Article 62 of Act No. 43 of 1942, The Louisiana Criminal Code, since it is not charged that the entering was with the intention of committing a forcible felony or theft. Inasmuch as he reserved no bills of exceptions during the trial of his case, he relies for the reversal of his conviction and sentence on his appeal here on the trial judge's adverse ruling in denying this motion in arrest of judgment.

This court has on numerous occasions been called upon to pass upon indictments and informations drawn in conformity with the short forms prescribed in Article 235 of the Code of Criminal Procedure and,' in each instance where they were found to be sufficient to properly inform the accused of the nature of the accusation- lodged against him within the meaning and contemplation of Section 10 of Article I of the Constitution of 1921 and Article 227 of the Code of Criminal Procedure, they have been upheld. State v. Abeny, 168 La. 1135, 123 So. 807; State v. Miller, 170 La. 51, 127 So. 361; State v. Eisenhardt, 185 La. 308, 169 So. 417; State v. Digilormo, 200 La. 895, 9 So.2d 221; State v. Iseringhausen, 204 La. 593, 16 So.2d 65; State v. Young, 206 La. 202, 19 So.2d 48; State v. Pete, 206 La. 1078, 20 So.2d 368; State v. Ward, 208 La. 56, 22 So.2d 740; State v. Frazier, 209 La. 373. 24 So.2d 620; State v. Chanet, 209 La. 410. 24 So.2d 670; State v. Pizzolotto, 209 La. 644, 25 So.2d 292.

The test to. be applied in such cases was very succinctly set out in the Ward case as follows [208 La. 56, 22 So.2d 741]:

“1. Is the indictment or information sufficient to inform the court- what offense is being charged in order that the court might properly regulate the evidence sought to be introduced?
“2. Does the indictment or information inform the accused of the nature and cause of the offense with which he is being charged ?
“3. Is the indictment sufficient on its face to support a plea of former jeopardy in event there is an attempt to try the defendant more than once for the same offense?”

The crime of simple burglary is defined in the Criminal Code to be “the unauthorized entering of any vehicle, water-craft, dwelling or other structure, movable or immovable, with' the intent to commit any forcible felony or any theft therein, other than as set forth in Articles 60 and 61 (burglary in the nighttime, burglary in the daytime).” Article 62. The information returned against the accused in this case conforms precisely with the form set out in Article 235 of the Code of Criminal Procedure, as amended by Act No. 147 of 1942, and, in our opinion, meets the above test for it is clearly sufficient on its face to support a plea of former jeopardy and to permit the judge to regulate the introduction of evidence; and while at common law burglary was formerly limited to the breaking and entering of a dwelling house in the nighttime with the intent to commit a felony therein, this definition has been broadened by legislative act in all jurisdictions to include the breaking and entering of other types of premises at any time of the day or night, with the result that the term “burglary” is today universally understood to connote the unlawful entry into the type of premise or structure described in the act with the intent to commit a felony. Consequently, the accused could not have failed to appreciate the nature of the charge lodged against him.

For the reasons assigned the conviction and sentence are affirmed.

O’NIELL, C. J., takes no part.