author: McCALEB, Justice.

text:
    216 La. 742
    TEXAS CO. v. STATE MINERAL BOARD et al.
    No. 39643.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Feb. 13, 1950.

      Marion J. Epley, Jr., New Orleans, Lis-kow & Lewis, Lake Charles, for plaintiff-appellant.
    .Tinsley Gilmer, New Orleans, W. P. Hardeman, Lake Charles, Simon & Carroll, Shreveport, George C. Schoenberger, Houston, Tex., Debaillon, Bailey & Mouton, Lafayette, Milling, Godchaux, Saal & Saunders, New Orleans, Liskow & Lewis, Lake (Charles, F. P. Jones, Jr., Houston, Tex., Vinson, Elkins, Weems & Francis, Houston, Tex., King, Anderson & Swift, Lake Charles, for various plaintiffs-appellants.
    Bolivar E. Kemp, Jr., Atty. Gen., Carroll Buck, 1st Asst. Atty. Gen., John L. Madden, Asst. Atty. Gen., for defendants-appellees.
   McCALEB, Justice.

This is one of several suits instituted by mineral lessees of the tidelands- of this State demanding recognition of certain rights under the mineral leases which have allegedly arisen by reason of an action filed, on December 21st, 1948, in the Supreme Court of the United States by the Federal Government against the State in which the former is claiming a’paramount right or title to the leased property. 70 S.Ct. 422. Invoking the provisions of Act 22 of the Extra. Session of 1948, plaintiff seeks a judgment against'the State Mineral Board and Register of the State Land Office declaring that a number of mineral leases for tidelands of this State, secured by it in competitive bidding, contain an implied condition that, in the event the title of the State is questioned by the Federal Government, any obligation for payment of rentals (delay or otherwise) is suspended during the pendency of litigation and do not again become effective until a final successful determination or disposition of the suit in favor of the State.

' The defendants excepted to the jurisdiction of the court ratione personae and ma-teriae on the ground that the suit was one against the State without its consent. They also filed an exception of no right or cause of action based upon the provisions of the mineral leases which were annexed to and made part of the petition. And, forasmuch as none of the allegations of fact contained in the petition was disputed, the parties entered into a stipulation that the exceptions be considered as an answer on the merits so that the judge’s action on those pleas would necessarily be a final disposition of the case.

After a hearing conformable to the agreement of the parties, the judge dismissed the suit maintaining the plea to the jurisdiction ratione materiae and the exception of no right or cause of action. Plaintiff has appealed and defendants have answered, prayi’ng for an affirmance and also .that the plea to the jurisdiction ratione personae be sustained.

The pleas to the jurisdiction ratione personae and materiae are premised on the same ground — viz., that this is essentially an unauthorized suit against the state and, therefore, not cognizable in -the courts. The doctrine that a sovereign may not be sued without its consent is not open to question. State ex rel. Cunningham v. Lazarus, 40 La.Ann. 856, 5 So. 289; State v. Liberty Oil Co., 154 La. 267, 97 So. 438; Lewis v. State, 207 La. 194, 20 So.2d 917. But it is without application where the Legislature has designated an agency to administer State property with power to sue and be sued. Louisiana Navigation Co. v. Oyster Commission, 125 La. 740, 51 So. 706; Seibert v. Conservation Commission, 181 La. 237, 159 So. 375.

The State Mineral Board was created by Act 93 óf 1936 as a body corporate with the usual powers -incident to corporations including the right to sue and be sued; it was also vested with authority to lease State lands for mineral development and production “under such terms and conditions as to the Board may seem proper” (Section 7) and was given supervision of all mineral leases granted by the State (Section 9). Since plaintiff has contracted with the State Mineral Board, it seems manifest that any cause arising under those contracts (mineral leases) would be actionable against the board — for, to say that plaintiff is bound by the leases and yet obtains no enforceable rights thereunder (because the State as the real party at interest is exempt from suit) would provide an avenue for the State to escape its just obligations even though it be contracting in its proprietary capacity. This is exactly what this Court refused to countenance in State ex rel. Shell Oil Co. v. Register of State Land Office, 193 La. 883, 192 So. 519 and in Begnaud v. Grubb & Hawkins, 209 La. 826, 25 So.2d 606, 608.

We conclude that the exceptions to the jurisdiction ratione personae and materiae should have been overruled.

The Attorney General, representing the defendants, has advanced a number of theories for the maintenance of the exception of no right or cause of action. But,, since we are convinced that the exception of no cause of action is well founded because the mineral leases furnishing the basis of., the action do not impliedly authorize a suspension of rentals, consideration of the other arguments will be prescinded.

The contracts in suit are ordinary mineral leases executed on printéd commercial forms. A cash consideration was paid for each lease by plaintiff “for the right to begin the drilling of a well on the herein leased premises at any time within one year from the date hereof, said sum also being part consideration for Lessee’s right to delay drilling operations under the conditions hereinafter provided.” Following this is the usual provision that, if the lessee fails within a year to begin the drilling of .a well, its rights may be extended for an additional twelve months by the payment of a stipulated delay rental and “In like manner and upon like payments annually, the commencement of drilling operations may be further deferred for successive periods of 12 months each during the primary term of this lease, which primary term is hereby declared to be 5 years from the date hereof.”

It is plaintiff’s contention that these mineral leases imply that, should the title of the State to the tidelands upon which the leases are granted be, -attacked by the Federal Government, the delay rentals and all other payments falling due are to be suspended during the pendency of litigation and that this Coiirt should so declare. This argument is advanced on an alleged equitable premise, the postulate being that, if the State is denied ownership of the tidelands, plaintiff could not retrieve any monies paid under the leases by ordinary suit but would be required to obtain the refund by legislative act.

We find no merit in the contention. In the first place, the application of equity to the mineral leases sought -to be reformed (although plaintiff protests vehemently that it is seeking only a declaration of its rights under the leases the effect of the plea, if granted,' would be to supplement and reform the contract) would not be appropriate as they are free from ambiguity and state explicitly the entire agreement of the parties.

Article 1901 of the -Civil -Code provides that agreements legally made have the effect of law upon the contracting parties and “ * * * can not' be revoked, unless by mutual consent of the parties, or for causes acknowledged by law. * * * ” And, as observed in Moriarty v. Weiss, 196 La. 34, 198 So. 643, 656, “It is not the province of the court to alter by construction or to make new contracts for the parties. The duty of the court is confined to the interpretation of the agreements the parties have made for themselves, and, in the absence of any ground for denying enforcement, to give effect to the agreements as made.”

Counsel, nevertheless, insist that plaintiff does not demand an amendment to the original contract but merely an interpretation and that, when properly construed, the Court should declare that there is a tacit condition in the agreement for the right of suspension in the event the State’s title is challenged by the Federal Government. In support of this argument, reliance is placed upon Articles 1761, 1764, 1903 and 1965 of the Civil Code.

An examination of the codal articles cited by .counsel readily discloses their irrelevancy to the matter at hand. Article 1761 defines a contract as an agreement by which a persoa obligates himself to give, do or permit or not to do something express or implied by such agreement and Article 1764 enumerates the rules governing contracts. It declares that it is necessary to consider in every contract “Things which, although not essential to the contract, yet are implied from the nature of such agreement, if no stipulation be made respecting them, * * * But, here, it is difficult to perceive a good reason for saying that either plaintiff or the State Mineral Board tacitly understood that the delay rentals or othei payments provided for under the mineral leases would be suspended if the title of the State was challenged by the United States or any one else.

Article 1903, which deals with the effect of contracts, declares that their obligations extend not only to those matters expressly stipulated but also to everything that by law, equity or custom is considered as incidental to the particular agreement. But there is no suggestion of custom here nor can we discern that there is any equity which demands a suspension of plaintiff’s obligations. At the time plaintiff made the contracts,, it well knew that, should' it :'be required to litigate with the State, any monied judgment it obtained could not be recovered other than by legislative act. If it felt that it needed greater protection because of this, it should have insisted that the stipulation it would now have us imply be expressed in the leases.

The equitable principle professed by plaintiff to be the governing factor in the case is that stated in Article 1965 of the ICode, which is merely a declaration of the Christian tenet to do unto 'others as we would have others do unto us. But the flaw in plaintiff’s argument is that the principle set forth in Article 1965 is restricted to cases- coming within the rule stated in Article 1964 that “Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent tip'On from a knowledge that they woiiid be supplied from one of these sources(Emphasis ours.)

We think that' 'it would be an obvious fallacy to conclude that the parties to the leases contemplated that, should the State’s title be attacked, plaintiff would be entitled to suspend any and all payments falling due for the period of the litigation.

The obligation of the State under the mineral, leases was to deliver the thing and “To cause the lessee to be in a peaceable possession of the thing during the continuance of the lease.” Article 2692 of the Civil Code. Plaintiff unquestionably has been given the right of possession and has in no way been disturbed in that right. There is no implied warranty of title by the lessor in a contract of lease. See Spence v. Lucas, 138 La. 763, 70 So. 796; Chase v. Turner, 10 La. 19; Tippet v. Jett, 10 La. 359; Nicholls v. Byrne, 11 La. 170; Dennistoun v. Walton, 8 Rob. 211 and Sientes v. Odier, 17 La.Ann. 153.

The judgment appealed from is affirmed.

      . For a full discussion of the powers of the State Mineral Board see State v. Texas Co., 205 La. 417, 17 So.2d 569.

      . In the last-cited caso: the Court said: “The argument that because ordinarily the State as a sovereignty can not be sued in its courts except with its consent is untenable. It-overlooks the fact that while the State possesses legislative, public and governmental power in the exercise of which it is a sovereignty and governs its people, it also possesses proprietary and quasi private power, conferred upon it not for the purpose of governing its people but for the private advantage of the inhabitants of the State itself as a, legal personality. This distinction in the powers of the State was pointed out in the ease of State ex rel. Shell Oil Co. v. Register of State Land Office, 193 La. 883, 192 So. 519. In that case this Court hold that when the State executed a mineral lease it was acting in its proprietary or quasi private capacity and that having accepted the benefits under the lease it could .not escape its obligations — among which was the obligation of warranty. And the Court properly allowed the assignees of the lessee of the State to call their lessors in warranty to protect their possession of the leased premises.”

      .. See also Blakesley v. Ransonet, 159 La. 310, 105 So. 354, Wiley v. Davis, 164 La. 1090, 115 So. 280 and American Cotton Co-op. Ass’n v. New Orleans & Vicksburg Packet Co., 180 La. 836, 157 So. 733.

      . Since the decision of this Court in Gulf Refining Co. v. Glassell, 186 La. 190, 171 So. 846, a mineral lease has been placed in the same category as an ordinary contract of lease. See Tyson v. Surf Oil Co., 195 La. 248, 196 So. 336 and Coyle v. North American Oil Consolidated, 201 La. 99, 9 So.2d 473. Therefore, Article 2557 of the Civil Code, relied on by plaintiff in support of its contention in this case, is not pertinent.


source: Caselaw Access Project

license: Public Domain

text:
    216 La. 755
    HUMBLE OIL & REFINING COMPANY v. STATE MINERAL BOARD et al.
    No. 39648.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Feb. 13, 1950.
    Nelson Jones, Houston, Tex., Charles Janvier, Tinsley Gilmer, New Orleans, for plaintiff-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., Carroll Buck, 1st Asst. Atty. Gen., John L. Madden, Asst. Atty. Gen;, for defendant-appellee.
   McCALEB, Justice.

This case was consolidated for all purposes with the suit of The Texas Company v. State Mineral Board et al., 216 La. 742, 44 So.2d 841. The decision in that matter controls here.

The judgment appealed from is affirmed.


text:
    216 La. 756
    STANOLIND OIL & GAS COMPANY v. STATE MINERAL BOARD et al.
    No. 39649.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Feb. 13, 1950.
    Wm. P. Hardeman, Lake Charles, W. W. Heard, Tulsa, Okl., for plaintiff-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., Carroll Buck, 1st Asst. Atty. Gen., John L. Madden, Asst. Atty. Gen., for defendant-appel-lee.
   McCALEB, Justice.

This case was consolidated for all purposes with the suit of The Texas Company v. State Mineral Board et al., 216 La. 742, 44 So.2d 841. The decision in that matter controls here.

The judgment appealed from is affirmed.


text:
    216 La. 757
    MAGNOLIA PETROLEUM COMPANY v. STATE MINERAL BOARD et al.
    No. 39650.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Feb. 13, 1950.
    Boatner, Simon & Carroll, Shreveport,, for plaintiff-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., Carroll Buck, 1st Asst. Atty. Gen., John L. Madden, Asst. Atty. Gen., for defendant-appel-lee.
   McCALEB, Justice.

This case was consolidated for all purposes with the suit of The Texas Company v. State Mineral Board et al., 216 La. 742, 44 So.2d 841. The decision in that matter controls here.

The judgment appealed from is affirmed.


text:
    216 La. 758
    SHELL OIL COMPANY, Incorporated v. STATE MINERAL BOARD et al.
    No. 39651.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Deb. 13, 1950.
    George C. Schoenberger, Jr., Oliver L. Stone, Houston, Tex., for plaintiff-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., Carroll Buck, 1st Asst. Atty. Gen., John L. Madden, Asst. Atty. Gen., for defendant-appel-lee.
   McCALEB, Justice.

This case was consolidated for all purposes with the-suit of The Texas Company v. State Mineral Board et al., 216 La. 742, 44 So.2d 841. The decision in that matter controls here.

The judgment appealed from is affirmed.


text:
    216 La. 759
    PHILLIPS PETROLEUM COMPANY v. STATE MINERAL BOARD et al.
    No. 39652.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Feb. 13, 1950.
    R. K. Batten, Houston, Tex., Charles F. Bailey, Lafayette, for plaintiff-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., Carroll Buck, 1st Asst. Atty. Gen., John L. Madden, Asst. Atty. Gen., for defendant-appel-lee.
   McCALEB, Justice.

This case was consolidated for al-1 purposes with the suit of The Texas Company v. State Mineral Board et al., 216 La. 742, 44 So.2d 841. The decision in that matter controls here.

The judgment appealed from is affirmed.


text:
    216 La. 760
    KERR-McGEE OIL INDUSTRIES, Inc., et al. v. STATE MINERAL BOARD et al.
    No. 39653.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Feb. 13, 1950.
    ■ ■ R. K.. Batten, Houston, Tex., Charles F. Bailey, La'fayette, for plaintiff-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., Carroll Buck, 1st Asst. Atty. Gen., John L. Madden, Asst. Atty. Gen., for defendant-appellee.
   McCALEB, Justice.

This case was consolidated for all purposes with the suit of The Texas Company v. State Mineral Board et al., 216 La. 742, 44 So.2d 841. The decision in that matter controls here.

The judgment appealed from is affirmed.


text:
    216 La. 761
    The CALIFORNIA COMPANY v. STATE MINERAL BOARD et al.
    No. 39654.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Feb. 13, 1950.
    Milling, Godchaux, Saal & Saunders, New Orleans, for plaintiff-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., Carroll Buck, 1st Asst. Atty. Gen., John L. Madden, Asst. Atty. Gen., for defendant-appellee.
   McCALEB, Justice.

This case was consolidated for all purposes with the suit of The Texas Company v. State Mineral Board et al., 216 La. 742, 44 So.2d 841. The decision in that matter controls here.

The judgment appealed from is affirmed


text:
    216 La. 762
    SUPERIOR OIL COMPANY, v. STATE MINERAL BOARD et al.
    No. 39655.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Feb. 13, 1950.
    F. P. Jones, Jr., Houston, Tex., Liskow & Lewis, Lake Charles, for plaintiff-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen.,’ Carroll Buck, 1st Asst. Atty. Gen., John L. Madden, Asst. Atty. Gen., for defendant-appellee.
   McCALEB, Justice.

This case was consolidated for all purposes with the suit of The Texas Company v. State Mineral Board et al., 216 La. 742, 44 So.2d 841. The decision in that matter controls here.

The judgment appealed from is affirmed.


text:
    216 La. 763
    SUPERIOR OIL COMPANY et al. v. STATE MINERAL BOARD et al.
    No. 39656.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Feb. 13, 1950.
    F„ P. Jones, Jr., Houston, Tex., Liskow & Lewis, Lake Charles, for plaintiff-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., Carroll Buck, 1st Asst. Atty. Gen., John L. Madden, Asst. Atty. Gen., for defendant-appel-lee.
   McCALEB, Justice.

This case was consolidated for all purposes with the suit of The Texas Company v. State Mineral Board et al., 216 La. 742, 44 So.2d 841. The decision in' that matter controls here.

The judgment appealed from is affirmed.


text:
    216 La. 764
    CONTINENTAL OIL COMPANY et al. v. STATE MINERAL BOARD et al.
    No. 39657.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Feb. 13, 1950.
    Ward T. Jones, Houston, Tex., Liskow & .Lewis, Lake Charles, for plaintiff-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., Carroll Buck, 1st Asst. Atty. Gen., John L. Madden, Ass't. Atty. Gen., for defendant-appellee.
   McCALEB, Justice.

This case was consolidated for all purposes with the suit of The Texas Company v. State Mineral Board et al., 216 La. 742, 44 So.2d 841. The decision in that matter controls here.

The judgment appealed from is affirmed.


text:
    216 La. 765
    PAN AMERICAN PRODUCTION CO. et al. v. STATE MINERAL BOARD et al.
    No. 39658.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Feb. 13, 1950.
    Liskow & Lewis, Lake Charles, • for plaintiff-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., Carroll Buck, 1st Asst. Atty. Gen., John L.. Madden, Asst. Atty. Gen., for defendant-appellee.
   McCALEB, Justice.

This case was consolidated for all purposes with the suit of The Texas Company v. State Mineral Board et al., 216 La. 742, 44 So.2d 841. The decision in that matter controls here.

The'judgment appealed from is affirmed,.


text:
    216 La. 766
    The PURE OIL COMPANY v. STATE MINERAL BOARD et al.
    No. 39659.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Feb. 13, 1950.
    Vinson, Elkins, Weems & Francis, Houston, Tex., Liskow & Lewis, Lake Charles, 'for plaintiff-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., Carroll Buck, 1st Asst. Atty. Gen., John L. Madden, Asst. Atty. Gen., for defendant-appel-lee.
   McCALEB, Justice.

This case was consolidated for all purposes with the suit of The Texas Company v. State Mineral Board et al., 216 La. 742, 44 So.2d 841. The decision in that matter controls here.

The judgment appealed from is affirmed.


text:
    216 La. 767
    KERR-McGEE OIL INDUSTRIES, Inc. et al. v. STATE MINERAL BOARD et al.
    No. 39660.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Feb. 13, 1950.
    Dean E. Terrill, Oklahoma City, Old., Geo. L. Sneed, Madill, Okl., W. P. Harde-man, Lake Charles, W. W. Heard, Tulsa,. Okl., for plaintiff-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., Carroll Buck, 1st. Asst. Atty. Gen., John L. Madden, Asst. Atty. Gen., for defendant-appel-lee.
   McCALEB, Justice.

This case was consolidated for all purposes with the suit of The Texas Company v. State Mineral Board et al., 216 La. 842, 44 So.2d 841. The decision in that matter controls here.

The judgment appealed from is affirmed.


text:
    216 La. 768
    SUN OIL COMPANY v. STATE MINERAL BOARD et al.
    No. 39661.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Feb. 13, 1950.
    King, Anderson & Swift, Lake Charles, for plaintiff-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., Carroll Buck, 1st Asst. Atty. Gen., John L. Madden, Asst. Atty. Gen., for defendant-appel-lee.
   McCALEB, Justice.

This case was consolidated for all'purposes with the suit of The Texas Company v. State Mineral Board et al., 216 La. 842, 44 So.2d 841. The decision in that matter controls here.

The judgment appealed from is affirmed.


author: FOURNET, Chief Justice. HAMITER, Justice

text:
    216 La. 769
    SALTER v. ZODER. In re SALTER.
    No. 39261.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Thomas M. Comegys, Jr., Shreveport, for plaintiff-applicant.
    Morgan, Baker & Skeels, Shreveport, for defendant-appellee.
   FOURNET, Chief Justice.

This suit is before us on certiorari to review the judgment -of the Court of Appeal, Second Circuit, which affirmed the judgment of the -lower court dismissing plaintiff’s- suit for the use and benefit' of his six-year-old minor daughter, who was injured while playing in the paved driveway leading - to the garage- apartment occupied by ■ the plaintiff and his -family under a sub-lease, caused by the alleged negligent -act of the defendant, owner of the premises, in having placed on a portion of this driveway a stack of -lumber and having same covered with galvanized iron extending beyond the edges on all side-s, in disregard of plaintiff’s rights and the safety of his child; and in his individual capacity ■for the medical expenses incurred in treating the child. See 37 So.2d 464.

It appears that on October 1, 1946, the defendant Harry L. Zoder purchased from Mrs. L. E. Bankson certain .property located at the -corner of Line Avenue and College Street in the city of Shreveport, being lot 16, all of lot 15 except the south 40 feet of the east 35 feet, and the north 105 -feet of lots 13 and 14 of Block K of the Thorn-hill Subdivision. At the time, the property (with the exception of lot 16, a vacant lot west of the garage and the concrete driveway) was under oral lease to and occupied by L. E. Plitt, and by t-he plaintiff James F. Salter, to whom Plitt had subleased the garage apartment. By this sublease plaintiff and his family were to have the use of the driveway and that part of the yard which adjoined the same. The garage apartment is located 7 from the south boundary of lots 15 and 16, facing a graveled alley running east to Line Avenue, and at the rear of the apartm'ent is a concrete driveway which runs due north to College Street.

The defendant, having -purchased t-he property with a -view to converting it to an apartment building, immediately -sought to obtain possession of the premises -by -giving- Plitt the required six-months notice to vacate the -property under the' rules established by the Office of Pri-ce Administration, and, after obtaining permission from Plit-t, began to accumulate and h-aul lumber to the premises which he -caused to -be stacked on a portion of the driveway to a height of about three -feet, later -covering it with -galvanized iron. This ‘ extended for several inches beyond the lumber on all sides. On March 23, plaintiff’s daughter, Frieda, aged six years, while playing with her twin brother on the driveway, fell and struck her -face on the metal sheeting, lacerating her left cheek and requiring several -stitches to close the wound, wit-h the result that she -has been left with a permanent scar.

The 'basis of plaintiff’s action is that the defendant was negligent “by reason of his failure to maintain the premises owned by him and occupied under sublease * * * particularly said driveway, in a safe -and unobstructed condition” and in -stacking the lumber on the driveway and covering the same with the sheet metal having edges which extended on all sides, thereby creating a condition highly dangerous to children, particularly -since he knew that -plaintiff’s small children, as well as neighboring children, used this driveway and t-he adjoining property -daily -for a playground.

The defense is that there was no landlord and tenant relationship between the plaintiff and defendant; and that the accident in question was not occasioned by the decay or the ruin of the building, nor t-he neglect to repair; nor was it the result of a vice in the original construction; and -further, that the plaintiff and members of his family, under their sublease, had no right to use the driveway, since the only entrance they were entitled to use was the -alley on which the apartment faced; and consequently, the -subject child was a trespasser at the time of the accident.

The Court df Appeal -found that it was contemplated -between plaintiff-and Mr. Plitt that plaintiff was to have the use of the driveway for himself and members of -his -family, limited only by the right -of Mr. Plitt’s brother-in-law to u-se a portion thereof for parking purposes; -and that the driveway, as well as the adjoining lot (not included in Plitt’s lease), were -generally used by t-he plaintiff’s two children and the '-children of the neighbors -as a playground until ■ the defendant bought the property, erected fences, and planted the lot with grass, at which time the children were requested 'by the defendant to refrain from playing on the-lot; and -from these facts concluded (and we think correctly) that the subject child was not a trespasser' upon the driveway; but (we think erroneously) concluded that the -child was merely -a licensee and 'therefore occupied a position somewhere -between that of -a trespasser and that of an invitee, and that consequently the defendant, as the property owner, -owed plaintiff and his family only the duty of refraining from injuring them wilfully, or through active negligence — which the Court did not find existed in this -case and therefore absolved the defendant of liability. The conclusion that the -child was merely a licensee was based on the appellate court’s finding of fact that the relationship of landlord and tenant and/or subtenant did not exist as between the defendant and Plitt or as between the defendant and the plaintiff, inasmuch as the record was barren of proof that the defendant ever received rent from Plitt, or did anything, expressly or tacitly, to assume the status of landlord either to-Plit or to'plaintiff.

Although the payment or non-payment of rent by Plitt to the defendant wa-s not at issue in this case, t-he Court of Appeal -had an erroneous appreciation of the testimony, ■for the record does show that when the defendant acquired the property he was ful-ly informed of Plitt’s -possession under the lease and was told to call on Plitt to get his rent. It is therefore clear that when the defendant acquired the premises and accepted rent from Plitt from month to. month (as shbwn by Plitt’s affidavit at-la-ched to application for rehearing), the .status of landlord and tenant existed between the two. Revised Civil Code, arts. .2674, 2676 et seq.; Knapp v. Guerin, 144 La. 754, 81 So. 302, and since under the express provisions of Article 2725 of the Revised Civil Code the lessee can always .sublease unless he is expressly prohibited from doing so in his contract of lease, if} necessarily follows that whatever duties and Obligations defendant owed to Plitt’s family as well as to those - who had a right to be on the premises by Plitt’s invitation or otherwise, existed equally as to the plaintiff, the members of his family, and those who had a -right to be on the premises by his invitation or otherwise. See Wise v. Lavigne, 138 La. 218, 70 So. 103; Allain v. Frigola, 140 La. 982, 74 So. 404; Ciaccio v. Carbajal, 142 La. 125, 76 So. 583; Badie v. Columbia Brewing Co., 142 La. 853, 77 So. 768; Breen v. Walters, 150 La. 578, 91 So. 50; Davis v. Hochfelder, 153 La. 183, 95 So. 598. It is immaterial that the plaintiff did not pay rent to the defendant but instead paid directly to Plitt, for when the defendant acquired the prop-erty he knew that the plaintiff and his family were occupying the premises.under a sublease from Plitt. Defendant not only recognized Plitt as a tenant, iby collecting the rent, but also recognized the right of Plitt -and his subtenant, for before placing the lumber on the premises he -sought Plitt’s consent and inquired of the extent of plaintiff’s rights as subtenant. Clearly, under these circumstances, -subject child was not .a licensee. She had the undisputed -right to the use and. possession of the premises sublet to her parent, the plaintiff, to the exclusion of the -owner until the time arrived for them to -vacate.

The law applicable to the facts of this case is -found in the Revised Civil Code, Book III, Title V, Chapter 2, under the heading “Of Offenses and Quasi Offenses,” where appears the provision that “Every .act whatever of man that causes damage •to another, obliges him by whose fault it happened to repair it; * * * ” Art. .2315, and, in the following article, the provision that “Every person is -responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.” Art. 2316, That the defendant recognized the dangerous condition created by -his act in stacking the lumber and covering the same with sheet metal which extended for several inches all around is clearly demonstrated by his testimony when asked the specific question with respect to this pile of -lumber and its -covering: “Didn’t you realize that that was a'very dangerous condition where young children were playing?” to. which he ■answered: “If the young children were permitted to play there, yes.” and to the further question: “It would be if they were permitted to play?” again answered: “Yes, sir.” In answer to the question of whether he asked the children who generally played on and about the. lot adjoining the premises to stay off t-he driveway, he again by his ■answer strongly -showed his recognition of the dangerous character of the situation he -had' created by stacking the lumber and covering it in this -case: “I don’t know. I might have asked them. I always tell children to get off the premises before they get hurt.” Although defendant contends that he did not know that the plaintiff’s -children played there, the testimony unmistakably shows, that he did have such' knowledge.

It is our opinion, therefore, that t-he defendant, by placing the lumber on the driveway and covering the same with the sheet metal extending several inches, not only disregarded t-he right of plaintiff -and his -family to the unobstructed use thereof, but, having placed the same in a spot where he knew the subject child as well as other children of tender years were accustomed to play, created a -condition which he knew was highly dangerous to children and he should have foreseen and anticipated what happened; and for this negligent and imprudent act he is answerable for the damage suffered as a result thereof. On the quantum of damages, however, we have concluded to remand the -case to the Court of Appeal -for a final decision.

For the reasons assigned, the judgments of the lower -court and of the Court of Appeal are annulled and -set aside, -and it is now -adjudged and decreed that there be judgment in favor of the 'plaintiff and against the defendant for such sum as the Court of Appeal may find the facts of the case warrant; all costs to be paid by the defendant.

HAMITER, J., dissenting.

HAMITER, Justice

(dissenting).

Conceding that the child 'in question enjoyed the status of an invitee on the premises, I do not find that the stack of lumber (with its galvanized iron covering) was a proximate cause of the accident and injury. The record discloses that during play the child tripped on some other and disconnected object, and, while falling, struck her face on the metal covering. Had 'an ordinary iron chair occupied the- space at the-time, rather than the lumber, the sáme injury might well have been sustained.'

I respectfully dissent.


author: HAWTHORNE, Justice.

text:
    216 La. 778
    KELLY et al. v. OZONE TUNG COOPERATIVE.
    No. 39539.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Hugh Morrison, New Orleans, and Benj. W. Miller, Bogalusa, for appellants.
    Deutsch, Kerrigan & Stiles, New Orleans, Dalton J. Barranger, Covington, , for defendant-appellee. - ■ ,. . '
   HAWTHORNE, Justice.

James E.' Kelly, -Mrs. Sarah Schwartz Kelly;-’ and Francis E. Bickford instituted this proceeding in the Twenty-second Judicial District Court of St. Tammany Parish for a writ of- mandamus directed to John E. Brewster, clerk of that court, commanding him “to issue execution-to enforce the payment”- of- all-the cbsts in a certain suit styled “Kelly et - al. V. Ozone Tung Cooperative”. In this proceeding these parties prayed that the Ozone Tung Cooperative, defendant in that suit, be ordered to pay all costs or to show cause to the contrary,' but the ■ defendant was never cited . and made ño appearance herein. The'clerk of court answered, pleading want of interest. On trial óf the rule the district Court rendered judgment dismissing plaintiffs’ proceeding at their costs, and writs were granted by this, court to review that judgment. .

In suit No. 9456 on the docket of the Twenty-second Judicial District Court, a judgment was rendered against the defendant, Ozone Ttmg Cooperative, awarding to plaintiff James E. Kelly $200, to plaintiff Mrs. Sarah Schwartz Kelly $150, and to plaintiff - Francis E. Bickford $75, and ordering defendant to pay all costs. - After judgment, one of the attorneys for plaintiffs moved in open court for a devolutive appeal to -the Court of Appeal, First' Circuit, and the district court granted the appeal to plaintiffs, conditioned on the plaintiffs’ furnishing bond. "The appeal bond was filed, naming all three plaintiffs as principals and Herman O. Bertoniere as surety. This appeal bond was signed by two of the plaintiffs, Kelly and Mrs. Kelly, and by the surety, but was not signed by the plaintiff Bickford.

Ón October S, 1948, the Court of Appeal, 36 So.2d 837, affirmed the judgment as to the Kellys but reversed the judgment awarding the sum of $75 to the plaintiff Bickford, and further decreed that all costs in the district court he paid by the defendant, Ozone Tung Cooperative, and the plaintiff- Bickford, in the proportion of two-thirds by the defendant and one-third by Bickford. An application for a rehearing was timely made by all plaintiffs. Thereafter, on November 4, all plaintiffs filed a supplemental and amended application for a rehearing, and in this application plaintiff Bickford prayed that a rehearing be granted, and prayed, for the first time, that the judgment- of the district court as to him be reinstated for the reason that he had not perfected his appeal to the. Court of Appeal. The Court of Appeal, 38 So. 2d 232, refused to grant a rehearing and refused to consider the allegations of the supplemental application because it was filed too late.

Plaintiffs then applied to this court for certiorari or writ of review, which was refused. In refusing this writ this court stated that “If plaintiff Bickford did not perfect his appeal as contended in the application [for the writ] the judgment of the Court of Appeal reversing the lower court’s judgment in his favor is without effect and can be ignored by the plaintiff”. Plaintiffs then instituted the proceeding in the district court for the writ of mandamus, and, when this proceeding was dismissed by judgment of that court, they applied for, and were granted, the writs in the instant case.

Plaintiff Bickford takes the position that he never perfected his appeal to the Cotirt of. Appeal and never -furnished any bond, and that therefore that court did not have jurisdiction, and that, when it took jurisdiction, it did so erroneously and rendered a judgment which was null due to the fact that his rights and claims -were not before the court. In support of his contention that the appeal as to him was never perfected, he relies mainly on the fact that he did not sign the appeal bond as one of the principals.

Motion was made in the district court by one of the attorneys for plaintiffs for a devolutive appeal to-the Court of Appeal, First Circuit, and all plaintiffs by order of the court were granted an.appeal. The appeal bond filed pursuant to this order named all three plaintiffs as principals and was signed by two of the plaintiffs' and the surety, as set out hereinabove. In brief filed in the Court of Appeal counsel for plaintiffs, among other things, urged that the judgment of the district court in favor of plaintiff Bickford in the sum of $75 should be substantially increased. It was only after the Court of Appeal had reversed the judgment of the district court as to Bickford and ordered him to pay one-third of the costs that he took the position, in a supplemental and amended application for a rehearing which was not timely filed, that the appeal as to him had not been perfected.

If the Court of Appeal had substantially increased the award to Bickford as urged by him in brief filed in that court, the defendant, Ozone Tung Cooperative, could not successfully urge that the appellate court was without jurisdiction for the reason that Bickford by his failure to sign the appeal bond had not perfected the appeal. Likewise such a position would not avail the plaintiff Bickford. This plaintiff was named in the appeal bond as one of the -principals along with the other two plaintiffs, who signed the bond with the surety. It is well established in our jurisprudence that his failure to sign the bond under such circumstances did not affect its validity as to him, and there is no merit in his contention. Williams, Administrator etc. v. Hood, 11 La.Ann. 113; Lafrance v. Martin, 17 La.Ann. 77; Murrell et al. v. Murrell. et al., 33 La.Ann. 1233; Pasley v. McConnell et al., 38 La.Ann. 470; Frankel et al. v. Morse Timber Co., Ltd., et al., 140 La. 448, 73 So. 263; Fontini et al. v. Pine Grove Land Co., Inc., 167 La. 137, 118 So. 865; United Railway Men’s Oil Ass’n v. Dupuy et al., 173 La. 392, 137 So. 73; Blaize v. Cazezu, 208 La. 1081, 24 So.2d 147.

For the reasons assigned, the writs issued herein are now recalled,, and the judgment of the district court is affirmed; rélator Bickford to pay all costs of these proceedings.

PONDER, J., dissents.

LE BLANC, J., takes no part.


author: MOISE, Justice. McCALEB, Justice, HAWTHORNE, Justice,

text:
    216 La. 784
    WREYFORD v. WREYFORD.
    No. 38456.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Joseph C. Brocato, Shreveport, for plaintiff-appellant.
    Russell E. Gahagan, Natchitoches, - for defendant-appellee.
   MOISE, Justice.

This, suit for divorce, based on the grounds established by Act No. 269 of 1916, as amended by Act No. 31 of 1932, as amended by Act No. 430 of 1938, the living separate and apart for a period of two years continuously by married parties, was brought by a resident of Caddo Parish (the wife) against a resident’ of Red River Parish (the husband) in the Tenth Judicial District Court in-and for Red River Parish, which had also been the -last matrimonial domicile. The defendant’s exceptions, to the.jurisdiction of the Tenth Judicial District Court either ratione materiae or rations personae were sustained, and plaintiff’s suit was dismissed by that Court. She has appealed..

The Legislative -act under which this proceeding was instituted provides in part as follows: “Be it enacted by the Legislature of Louisianá, That - when married persons have been living separate and apart for a period of two years or more, either party to the marriage contract may sue, in the Courts of his or her residence within this state;' provided such residence shall have been continuous for the period of two years, for an absolute divorce, which shall be granted -bn • proof of the continuous living separate and- apart of the spouses, during said period of two years or more.”

The sole question before us is whether a plaintiff, whose cause of action is predicated ■ on the ground established 'by 'the aforesaid act' of . the Legislature,'- ■ must initiate his (her) suit in the court of his (her) residence; or, whether that plaintiff has a ■choice of instituting suit in the court of' his (her) residence, with the alternative choice of initiating suit in the court of the defendants domicile (which would be the proper forum for a personal action) or in the court of the matrimonial domicile (which would have jurisdiction of the res).

The District Court apparently interpreted the language of the statute to mean that a plaintiff proceeding thereunder must sue in the court of his (her) residence.

Articles 17 and 18 of the Revised Civil Code provide:

“17. Laws in pari materia, or upon the same subject matter, must be construed .with a reference to each other; what is clear in one statute may be called in aid to explain what is doubtful in another.
. “18. The universal and most,,effectual way of discovering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit, of it, or the cause which induced the Legislature to enact it.”

There.are three ways in which divorces may be obtained in Louisiana; two are established by Articles' 138 and 139 "of the Revised Civil Code, and an additional-remedy -has-been established by Act No. 269 •of 1916, as amended by Act No. 31 of 1932, as amended by. Act No. 430 of 1938. The codal articles permit an- absolute divorce in two instances: (1) where there.has been an antecedent judgment of separation from .bed and board, predicated on a cause set forth in Article 138, R.C.C., and'no reconciliation of the judicially separated spouses during a period of one year subsequent to the judgment; (2) where one of the parties has been guilty of adultery, or shall have been sentenced to an infamous punishment. The above-mentioned Legislative acts have created an additional ground for securing .a divorce — the dwelling separate and apart for a certain period of time, which was arbitrarily fixed by the Legislature, first at seven years, Act No. 269 of 191.6, then at four years, Act No. 31 of 1932, and presently, at two- years, Act No. 430 of 1938. In adding to the. pre-existing substantive law on the subject a further basis for obtaining a divqrce, th.e Legislature foresaw that there might be some question as to the proper forum, by the very nature of the substantive remedy it was according, and it specifically conferred on a plaintiff predicating his (her) action on the new, statutorily-established ground the privilege of adjudication in .the forum of his (her) residence.

After considering Act No. 430 of 1938 in the light of the entire body of Louisiana divorce law, we conclude that it is illogical . to prohibit a plaintiff whose cause of action arises under a- ground established, or created, by statute from employing the procedure which is employed where the ground for the divorce has been established and created by the Civil Code, when it is in the plaintiff’s.power,to so employ that general procedure and there is no necessity for him to avail himself of the additional procedure permitted by Act No. 430 of 1938. We hold that, where the domicile of the defendant, as well' as the last matrimonial domicile, is in the State of Louisiana, then the plaintiff has the choice of instituting her action for divorce at either place, where that action is grounded on Act No) 430 of 1938, ór in accordance with the fiat of the Legislature, at the forum of her own residence.

For the reasons above set forth, the judgment appealed from sustaining the exceptions of defendant is reversed, annulled and set aside, the exceptions of jurisdiction to the Court are hereby overruled, and this -matter remanded to the District, Court for further proceedings in accordance with law and not inconsistent with the views herein expressed.

' HAWTHORNE and McCALEB, JJ., dissent and assign written reasons.

McCALEB, Justice,

(dissenting).

The statute under consideration, Act No. '269'of 1916, as last amended by Act No. 430 of 1938, is'a special law. It provides in substance that when married persons have been • living separate and apart for two years or more “either party to the marriage contract may sue, in the Courts of his or her .residence within this state, provided * * I think that this language clearly fixes the -place in which such actions shall be brought and that the jurisdiction of the court of plaintiff’s residence is exclusive, , notwithstanding the • general law, (Article 162 of the Code of Practice) .'that suits must be brought at the domicile of the defendant. ‘ '

The majority take the position that the auxiliary verb “may” as used in the statute is permissive and that, while it authorizes suits to be brought at plaintiff’s domicile, it does not prohibit the institution of such actions at the domicile of the defendant', or at the matrimonial domicile. My answer to this is that the verb “may” refers exclusively to the circumstances under which an action is allowable, i. e., when the spouses have lived separate and apart for two years or more, and has no relation to the place where the suit is to be brought, which is definitely fixed in the statute to be the domicile of the plaintiff. If the Legislature had the intention of permitting the suit to be brought at the' defendant’s domicile, or the last matrimonial domicile, it would have been so easy to say so. Indeed, the decision herein has the effect of amending the statute so that it will now read that, when-spouses have been living separate and apart for a period of two years or more, either party may sue for an absolute divorce in the courts of his or her residence within this state, or at the defendant’s residence,. or at the last matrimonial domicile.

Furthermore, it is to be noted that the statute, after providing that the suit may be instituted in the court of plaintiff’s residence within the state, declares “provided such residence shall have been continuous for the period of two years, * Thus, it is seen that one of the conditions precedent for obtaining the divorce is that the plaintiff prove that he or she has been residing within the jurisdiction of the court for a period of two years. In the case at bar, this proof will be impossible as plaintiff is admittedly a resident of the Parish of Caddo.

I respectfully dissent.

HAWTHORNE, Justice,

(dissenting).

This is a special statute, the .purpose of which is to provide another ground for divorce in addition -to thosé' set forth in the'Civil Codé, and for a person to avail himself of' the provisions of' the statute he must' bring himself within- its terms. It provides that “ * * * either party to the marriage contract may sue,' in the Courts of his or her residence within this State, provided such residence shall hávé been' continuous for the’period of twci. years, for an absolute divorce, which shall be. granted on proof, of the continuous living separate and apart of the-spouses, during said period.of two years or more.” . To-, me this .simply means that the parties' to the marriage contract must live separate and apart, for a period of two years, and that the party instituting the suit must bring-the action in the' court of his residence within this state, provided such residence has been continuous within the jurisdiction of that court for a period of two years.

The. statute is not ambiguous, and to give it the interpretation placed upon it -by the majority is, in effect, legislating under the guise of interpreting. As-'a matter' of policy, it might be to the best interest of society to permit the suit to be brought at the residence of either the plaintiff or the defendant,- but this addresses itself to the sound discretion of the Legislature. ■

I am therefore of the opinion that the judgment of the lower court sustaining the 'exception to the jurisdiction was well founded and should be sustained.

I respectfully dissent.


author: PONDER, Justice.

text:
    216 La. 791
    LATHAM v. LATHAM (two cases).
    Nos. 38675, 38676.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Love & Bailey, James T. Adams, Shreveport, for defendant-appellant.
    Thompson, Thompson & Sparks, Monroe, for appellee'.
   PONDER, Justice.

These two cases are consolidated and treated as one because only one issue is involved, viz.: whether or not a judgment for separation should be annulled. This question was unsuccessfully raised in the first suit by way of answer to a demand for divorce on the ground -that more than one year had elapsed and no reconciliation had taken place. The question was raised in the second suit by direct action to annul the judgment. In both instances the lower court rejected the demands to, annul the judgment and the wife, who was unsuccessful in these suits, has appealed.

It appears from the pleadings and evidence in the suit for separation that the spouses acquired a home and established á matrimonial domicile at Monroe, Louisiana. After they had acquired the home and established the domicile, they became estranged and the wife refused to live with the husband. She ordered him to leave the matrimonial domicile and informed him that she would depart if he returned to it. The husband then moved to Vicksburg, Mississippi, and endeavored to persuade his wife to accompany him to that place. She refused to accompany him and to live with him. He had provided a place for her to live but when she refused to accompany him he secured accommodations at a hotel; where he is 'now residing.

All the proceedings in the separation suit are regular. The wife appeared and answered the suit and her attorney was present at the time of the trial but offered no evidence to contradict the testimony produced by her husband. A judgment of separation was granted'to the husband and no appeal was taken from it. It was only after the filing .of the suit for final divorce that the wife sought to attack the judgment of separation by way of answer to the divorce suit. The court refused to consider the collateral attack on the judgment after an objection had been made. A final divorce was granted and the wife appealed. The wife then brought a direct action to annul, the judgment which was dismissed on exceptions of no right and no cause of action interposed on behalf of the husband. She has appealed from this judgment. The two suits are consolidated and treated as one.

Counsel for the appellant contends that the lower court was without jurisdiction ra-tione personae and ratione materiae to grant the separation from bed and board. His contention is based on the grounds that the husband' had alleged in his petition that he was a resident of Vicksburg, Mississippi, and had secured an order from the lower court commanding the wife to return to the matrimonial domicile in a hotel in Vicksburg, Mississippi. The position is taken that the domicile of the husband is the domicile of the wife and that the husband having established a new matrimonial domicile at Vicksburg, Mississippi, that only the court of that place would have jurisdiction to entertain the cause.

The matrimonial domicile was established at Monroe. The husband attempted to establish a matrimonial domicile in Vicksburg but was unsuccessful because his wife would not accompany him to that place. Consequently, no new matrimonial domicile was established.

In Barrow v. Barrow, 160 La. 91, 106 So. 705, 706, this court said:

“It is true that 'a married woman has no other domicile than that, of her husband.’ R.C.C.Art. 39. But when a husband establishes a matrjijionial 'domicile, and habitually resides, there, with his wife, the matrimonial domicile becomes his and ‘the wife’s domicile for the purpose of suits for separation from bed and board, although he may have acquired a residence elsewhere, to be used by him or, his family during occasional visits, or while looking after his business or planting interests.”

The refusal of the wife to live with her husband and her refusal to live at the' matrimonial domicile if her husband should return tb it constitutes an abandonment on her part. Parrish v. Parrish, 164 La. 62, 113 So. 764; State v. Kay, 176 La. 294, 145 So. 544; Armentor v. Gondron, 184 La. 922, 168 So. 102. As was stated in the Armentor case, an unwilling wife cannot be compelled to live with -her husband and all that the law does is to denounce the refusal of the wife to live with the husband as an abandonment and to allow a separation from bed and board on that ground.

The matrimonial domicile being situated at Monroe and the abandonment having taken place there the trial court had jurisdiction to entertain the suit. It is of no moment that the husband subsequently moved to Vicksburg and endeavored to persuade his wife to accompany him there with the view of establishing a new domicile.

Counsel for the appellant contends that the judgment in the separation suit was obtained through fraud and ill practices.

The allegations in the petition that the judgment was obtained through fraud and ill practices are mere conclusions of the pleader. No facts are alleged upon which the conclusion can be based. The mere conclusion of the'pleader unsupported by facts does not set forth a cause or right of action. In re Phoenix Building & Homestead Association, 203 La. 565, 14 So.2d 447.

The cases relied on by the appellant, Daspit v. Ehringer, 32 La.Ann. 1174 and O’Rourke v. Lawrence, 132 La. 710, 61 So. 764, involve entirely different factual situations. In the Daspit case the defendant excepted to the petition on the grounds that it disdlosed no cause of action in that it did not set forth that the plaintiff ever attempted to effect a reconciliation. The lower court refused to permit the defendant to introduce 'evidence to this effect and this court held that the suit should have been nonsuited because the plaintiff failed to prove th'e averments set forth in the petition. In the O’Rourke case the wife was imposed upon and not represented in the separation proceedings. The husband led the wife to believe that the proceedings were taken to effect a separation of property which had become a necessity, The judgment in that case was .taken by default. It is apparent, that neither of these cases conflict with the views herein expressed.

For the reasons assigned, the judgments of the lower court in both of these cases are affirmed. All costs to be paid by appellant., .... - ..- . .


author: PONDER, Justice. ,

text:
    216 La. 798
    BONNABEL v. POLICE JURY, PARISH OF JEFFERSON.
    No. 39150.
    Supreme Court of Louisiana.
    Feb. 13, 1950.

      Sidney G. Roos, New Orleans, for plaintiff-appellant.
    P. M. Flanagan, New Orleans, for in-tervenor.
    Frederic. C. Querens, Guy L. Deano, Jr., New. Orleans, for intervenors-appellees.
    Frank H. Langridge, District Atty., L. Julian Samuel,: Asst. District Atty., Gretna, for defendant-appellee.
   PONDER, Justice. ,

Alfred 'E. Bonnabel, as administrator of the successions of Alfred Bonnabel-and Laura Brockenbraugh Rapeleye Bonnabel, brought suit against the Police Jury of Jefferson Parish seeking to be decreed in his administrative-capacity the owner of a narrow strip- of land located in Jefferson, Parish and to enjoin the police jury from tres-' passing on the property. The strip of land is described as follows:

“A Strip Of Land , situated in Jefferson Parish Louisiana, thirty (30) feet wide, running in an, easterly and westerly direction, and constituting the front thirty (30) feet of Lot A and one-half of Lot B of Ba-th #2 and that portion of Bath #1, which thirty (30) foot strip is parallel and adjacent to the Metairie Road, all as per plan made by D’Hemecourt;
“The said strip of land commences at the division line of the, property of Charles Persigo and the Bonnable Tract 1,419-feet to the line of the Bertucci property, through the Bonnabel property 1,100 feet, or as is more fully shown on the plan made by Alfred E. Bonnabel, Parish Surveyor, January 6, 1913, a copy of which is on file in proceedings No. 13,999, 24th Judicial Court, Parish of Jefferson, Louisiana, which plan is identified as Plaintiff 4 in said proceedings.”

In defense to the suit the police jury claims the ownership of the property by virtue of a deed to it from the New Orleans Public Service, Incorporated, .dated November 28, 1939. The police jury urges in the alternative, should it not be decreed the ownér of the property, that the public has obtained a right or servitude of passage along and over the property by the construction and use of a sidewalk that has been in use for over ten years. There was another alternative demand urged' by the police jury which has passed .out of the case -because the parties, in an agreed stipulation filed in the record, concede that the extension of Elmeer Avenue, Brocken-braugh Court,' Oak Avenue, Codifer Boulevard, Homestead Avenue, Bonnabel Boulér vard and Helois Avenue across this strip otf land, claimed by the police jury, is public property and remain in the public as they are constructed'and presently exist.

Mrs.' Julia McCarthy Bonnabel Rolling, St.. Catherine of Sienna Roman Catholic Church, Metairie Ridge ■ Presbyterian Church, Roland C. Lawes, W. Rapeleye Lawes, Robert L. Lawes, Bonnabel Land Company, Inc., Mrs. Elizabeth Nicolay and Bonnie W. Rolling intervened arid opposed the demands of plaintiff and set forth that they are the owners of the portions of this 'strip of land ádjoining their property by virtue of certain deeds executed in their favor by the plaintiff’s ancestor in title. On trial of the case, the lower court gave judgment in favor of the Bonnabel Land Company, Inc., intervenor, recognizing' it as the record owner of the thirty foot Strip of' land, subject to a servitude of passage for the benefit of the public over the concrete sidewalk and a like servitude in favor of the public of any portion of the property covered by the act of dedication of June 9, 1916, reserving the rights of the public with respect to the sub-surface drains and sewer pipes. The other intervenors were recognized as the owners of the portions of the strip of land adjoining their property subject to the sidewalk, sewers and drains. The demands of the plaintiff were rejected and the strip of land Was decreed to be public property and the property of the police jury. The plaintiff has appealed.

We have entertained some difficulty in determining the nature and character of this action. The plaintiff asked for and obtained a temporary restraining order which was set aside when the case was tried on its merits. If the suit was characterized as an injunction suit, title to the property could not be inquired into. The plaintiff sets up his title but does not allege who is in possession of the property. The answer of the police jury is to the effect that it was a record title to the property from the New Orleans Public Service, Incorporated and in the alternative that a portion of the property has been used by the public for more than ten years and that-thereby a servitude was created. Since .neither of the parties have alleged or claimed possession of the entire property, it appears that the lower court treated the action as one to establish title where neither of the parties are in possession under the -provisions of Act No. '38 of 1908. Such being the case, we will treat the action as being brought under the provisions of Act No. 38 of 1908 to establish title.

There is no dispute between the -parties as to the effect that Alfred Bonnabel originally owned the property. The police jury contends that Alfred Bonnabel conveyed the property to Johnson & Company, Inc., by act dated January 25, 1915; that Johnson' & Company, Inc., assigned all of its rights in -the property to the New Orleans Public Service, Inc., and that the New Orleans Public Service, Inc., transferred its rights in the property to'the police jury on November 28, 1939. Under such circumstances, it is'necessary to inquire into the deed from Bonnabel to Johnson & Company, Inc., to determine the extent of the title of the police jury. The question is raised whether or not this title conveys a servitude or the fee title.to the property. The pertinent portion of the deed reads as follows:

“Be It Known By These Presents, That A. Bonnabel of the Parish of Jefferson, State of Louisiana, declares that he does hereby sell, transfer, convey, assign, set over and deliver unto Johnson & Company, Incorporated, of New Orleans; Louisiana, its assigns or transferees, a right-of-way thirty (30') feet wide running in an easterly and westerly direction, over and across that certain tract of land situated in the Parish of Jefferson, State -of Louisiana, described as follows, to-wit:
“Lot A, and one-half of Lot B, of Bath #2 and that portion of Bath #1 parallel and adjacent to the Metairie Road, on a plan made by D’Hemecourt. The land conveyed being adjacent and parallel to the Metairie Ridge Road. Which right of way is hereby conveyed, transferred, assigned and delivered unto the said grantee, its assigns or transferees, in perpetuity to have and retain the absolute title to same, and to have the right of free ingress and egress in and upon said right of way, to construct, maintain, operate and manage a line of railway and such tracks, switches, spurs, turntables, transmission lines, and all other appurtenances as may be necessary or convenient for the purpose of construction, maintenance, operation and management of said railway.
“The consideration of this transfer and conveyance is $1.00 cash in hand paid, receipt of which is hereby acknowledged, and the many benefits, advantages and conveniences that will accrue to the said A. Bon-nabel, and the enhancement in value of adjacent lands by virtue of the building of the railroad through said lands.
“The said grantee hereby accepts this transfer and conveyance, and agrees to construct or cause to be constructed a line of railway, in, over and across, or along the right of way described, and have same completed on or before the first day of July, 1915, and further agrees to maintain and construct the proper crossing over said railway tract at grade; to leave and maintain the proper openings in all drains and ditches now existing on said right-of-way.
“It is distinctly understood that the failure to complete said line of railway by the said grantee or its assigns over the said right of way on or before the first day of July, 1915, shall work a forfeiture of all rights of said grantee or its assigns in and to the said right-of-way, except that in the event of delays caused by litigation or any character regarding the circumstances beyond the control of said company, there shall be added to the said time mentioned a further delay equal to the time said construction was retarded; but if said line of railway shall be completed through and over this property on or before said date or extended date, then said right of way above described shall be the property of said grantee and its assigns forever.”

In the suit of Persigo v. Johnson & Company, Inc., et al., La.App., 18 So.2d 186, involving a transfer similar and practically identical with the one presented here, the Court of Appeal held that the transfer or deed conveyed merely a servitude. The tract of land conveyed by Persigo adjoined and was á continuation of the strip of land involved in this suit. It was conveyed to Johnson & Company, Inc., in order to construct the same railroad. In that case the court held that only a servitude was conveyed and it had prescribed because the railroad had been discontinued for more than ten years. It was pointed out in that case that the conveyance of a right-of-way to a railroad company for railway purposes merely granted a servitude which was lost by prescription for non-use for a period exceeding ten years, citing Noel Estate, Inc., v. Kansas City Southern & Gulf Railway Company et al., 187 La. 717; 175 So. 468; Knox v. Louisiana Railroad & Navigation Co., 157 La. 602, 102 So. 685; Parish of Jefferson v. Texas Company, 192 La. 934, 189 So. 580. It was further pointed out therein that it was stated in Texas & Pacific Railway Company v. Ellerbe, 199 La. 489, 6 So.2d 556:

“The jurisprudence is well settled that the conveyance of a right of way is to be regarded as a mere servitude and not as a transfer of a fee-simple title of the land unless the deed itself evidences that the parties intended otherwise. See John T. Moore Planting Company v. Morgan’s Louisiana & T. R. & S. S. Co., 126 La. 840, 53 So. 22; Louisiana Sulphur Mining Co. v. Brimstone R. & Canal Co., 143 La. 743, 79 So. 324; Leader Realty Co. v. Taylor, 147 La. 256, 84 So. 648; Knox v. Louisiana Ry. & Nav. Co., 157 La. 602, 102 So. 685; and Bond v. Texas & P. R. Co., 181 La. 763, 160 So. 406.
“In John T. Moore Planting Co. v. Morgan’s Louisiana & T. R. & S. S. Co., supra, 126 La. 840, 53 So. 22, we said: ‘A right of way may consist either of the fee, or merely of a right of passage and use, or servitude. Whether the one or the other is meant in any particular instrument must be gathered from the instrument as a whole. As a general rule, only a servitude is meant.’ (Italics ours.)” [18 So.2d 188.]

From a mere reading of the deed involved in this case, it is apparent that only a right of way was conveyed and that there was no intention on the part of Bonnabel to convey anything more than a right of way or a servitude and Johnson '& Company, Inc., 'undoubtedly knew from the wording of the' deed that it was only acquiring a se’rvitude. ' The Persigo case and the authorities cited therein support the conclusion that only a right of way or servitude was granted'in this case.

The authority relied on by the defendant, Askew v. Vicksburg S. & P. Ry. Co., 171 La. 947, 132 So. 510, is not applicable because in that case two acres of land were conveyed for the purpose of a railroad depot to be measured in the manner described in the deed. In the present case we are dealing with the conveyance of a right of way and not the conveyance of the land.

Counsel for the police jury contends that there has been a dedication of the sidewalk which it had constructed along and over the property under the provisions of Revised Statutes, Sec. 3368 and Act No. 220 of 1914. The position is taken that the sidewalk is a servitude because the police jury has maintained it and the public has used it for more than ten years. To support their contention they cite Elliott v. Police Jury, 15 La.App. 542, 132 So. 368 and Bordelon v. Heard, La.App., 33 So.2d 88.

Section 3368 of the Revised Statutes and Act No. 220 of 1914 apply to roads and there is nothing in the provisions of these statutes to. indicate that they are to be extended to sidewalks. Under the provisions of Article 727, Revised Civil Code, a right of passage is a discontinuous servitude. A discontinuous servitude can be established only by title, except in the instances. provided for in Article 699' et seq. See Article 766, Revised Civil Code. This case does not present one of the exceptions mentioned in Article 699 et seq. of the code. The right, of passage is a discontinuous servitude which can be established only by title and such a servitude cannot be acquired or established even by immemorial possession. Larcade v. Iseringhausen, 153 La. 976, 96 So. 830; Burgas v. Stoutz, 174 La. 586, 141 So. 67; Mallet v. Thibault, 212 La. 79, 31 So.2d 601. The Elliott and Bordelon cases, cited by the defendant, are hot applicable because they deal with 'public roads. Counsel also cites Soileau v. Soileau, 206 La. 243, 19 So.2d 124 which deals with public roads'and is therefore not pertinent. He cites Ford v. Shreveport, 204 La. 618, 16 So.2d 127 which is not applicable because in that case the previous owners of the property where the street was laid acquiesced in its use by the public and did not appear or raise any objection to its use.

Counsel also contends that the police jury and the public has a servitude of drains, sewer and water lines. He does not favor us with any authorities to support this contention. “The right of drain consists in the servitude of passing water collected in pipes or canals through the estate of one’s neighbor.” Article 714, Revised Civil Code. This is a continuous and apparent servitude which can only be acquired by title or by a possession of ten years. Article 765, Revised Civil Code. The evidence regarding the possession of this servitude is very indefinite. It appears that in the trial of this case that more stress was laid on the use of the sidewalk and the evidence offered regarding the drainage was meager and indicates that the drainage has not been in use for a period of ten years. From a mere reading of the evidence, it is apparent that the defendant has failed to prove the possession necessary to acquire the servitude of drainage.

The interventions interposed in this suit should be dismissed as of nonsuit. The intervenors in this case are claiming title in themselves in opposition to both the plaintiff and the defendant. They rely on different deeds. The record is not sufficient to intelligently pass on these questions. Moreover, in an action to establish title, brought under the provisions of Act No. 38 of 1908, a petition of intervention setting up title and possession in an inter-venor, and asking for judgment against plaintiff and defendant, decreeing the inter-venor to be the owner in possession of the property, discloses no cause of action; the act providing for that action thereunder shall not conflict or interfere with the peti-tory or possessory actions. Fortner’s Heirs v. Good Pine Lumber Co., 146 La. 11, 83 So. 319. See 170 A.L.R. 151, wherein this case, is quoted. Furthermore, an intervenor must take the suit as he finds it without raising issues between the defendant and the plaintiff which they have not themselves raised and must have recourse to a separate suit if he wishes to inject new issues. Code of Practice, Article 391; State ex rel. Temple v. Vernon Parish School Board, La.App., 178 So. 176; followed in State ex rel. Winfree v. Vernon Parish School Board, La.App., 178 So. 180; State ex rel. Johnson v. Vernon Parish School Board, La.App., 178 So. 180; State ex rel. Merchant v. Vernon Parish School Board, La. App., 178 So. 180; State ex rel. Haight v. Vernon Parish School Board, La.App., 178 So. 181 and State ex rel. Brown v. Vernon Parish School Board, La.App., 178 So. 181.

It is not necessary to inquire into whether an injunction should issue because we cannot assume that the police jury, after it has been decided that they do not own the property or have a servitude over it, will trespass on the property.

For the reasons assigned, the judgment of the lower court is reversed and set aside, the demands of the intervenors are dismissed as of nonsuit and it is decreed that the Successions of Alfred Bonnabel and Laura Brockenbraugh Rapeleye Bonnabel are the owners of the following described tract of land, viz:

“A Strip Of Land situated in Jefferson Parish, Louisiana, .thirty (30) feet wide, running in an easterly and westerly direction, and constituting the front thirty (30) feet of Lot A and one-half of Lot B of Bath #2 and that portion of Bath #1, which thirty (30) foot strip is parallel and adjacent to the Metairie Road, all as per plan made by D’Hemecourt;
“The said strip of land commences at 'the division line of the property of Charles Persigo and the Bonnabel Tract 1,419 feet to the line of the Bertucci property, through the Bonnable property 1,100 feet, or as is more fully shown on the plan made by Alfred E. Bonnabel, Parish Surveyor, January 6, 1913, a copy of which is on filé in proceedings No. 13,999, 24th Judicial Court, Parish of Jefferson, Louisiana, which plan is identified as Plaintiff 4 in said proceedings.”

It is'further decreed that the extension of Elineer Avenue, Brockenbraugh Court, Oák Avenue, Codifer Boulevard, Homestead Avenue Bonnabel Boulevard and Helois Avenue across this strip of land is a servitude vested in the public. All legal costs to be paid by the defendant.


text:
    216 La. 813
    AUTO-LEC STORES, Inc. v. OUACHITA VALLEY CAMP NO. 10, W.O.W.
    No. 36874.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Lemle, Moreno & Lemle, New Orleans, Irion & Switzer, Sheveport, for plaintiff-appellant.
    Sholars & Gunby, B. D. Allbritton, Monroe, for appellee.
   HAWTHORNE, Justice.

Plaintiff, Auto-Lec Stores, Inc., instituted this suit to recover damages allegedly re-suiting from the failure of the defendant, Ouachita Valley Camp Na 10, Woodmen of the World, to sign a contract of lease of certain real estate -situated in the City of Monroe.

This is the second time this case has been before this court. Upon the first occasion the lower court had rendered judgment sustaining an exception of no cause or right of action filed by the defendant, which was reversed by this court on appeal, and the case was remanded to be proceeded with according to law. The allegations of plaintiff’s petition are fully set out in our previous opinion, which is reported in 185 La. 876, 171 So. 62. That opinion enunciates the law applicable to the case. Upon being remanded to the lower court, the case was tried on the merits, judgment.was rendered in favor of defendant, and plaintiff -has appealed.

According to our previous opinion, under the allegations of the petition, which were taken as true, defendant prepared the lease, which was presented to, and signed by, the plaintiff, and all rent notes were executed according to its terms; defendant placed plaintiff in possession of the premises and accepted monthly rentals as provided in the lease, but the defendant never signed the lease and refused to do so. Under these allegations this court found that the agreement to lease was complete, carried out to the letter, and thereby became an executed contract, and that the petition therefore stated a cause of action for damages.

The present appeal presents for our consideration only a question of fact, and this was conceded by plaintiff in argument before this court. The trial judge concluded that plaintiff had failed to prove by a preponderance of the evidence the existence of any contract of lease between the parties, and we must determine only whether, from all the facts ’in the case, he committed manifest error in arriving at this conclusion.

Contrary to the allegations of the petition, the evidence discloses that plaintiff was placed in possession of the premises described in the lease, which defendant allegedly failed to sign or execute, in the latter part 'of August or the early part of September, 1928, by the Standard Office Supply Company, which was in possession of the premises by virtue of a lease from the defendant which was to expire on March 1, 1929. Prior to taking possession of the premises the plaintiff had approached the defendant for the purpose of-negotiating a lease on the premises, to begin at the expiration of the lease held by the Standard Office Supply Company. After negotiations defendant’s attorney prepared a written lease, together with rent notes, and submitted the lease and the notes in August of 1928 to an officer of the plaintiff corporation for signature and return This lease as prepared was for a term of five years beginning March 1, 1929, and ending February 29, 1934. The consideration named therein was $22,500.00, represented by 60-notes of $375.00 each, payable on the first day of each month. Some of the terms and provisions of the lease were not acceptable to plaintiff, and, again contrary to the allegations of the petition, no lease contract was in existence at the time the plaintiff occupied the premises or at any time prior to March 1, 1929, as plaintiff did not sign the lease contract or execute the notes.

Furthermore, on May 23, 1929, approximately nine months after the original lease prepared by defendant had been submitted to plaintiff, the president of the plaintiff corporation sent to defendant a check in the sum of $750.00 which covered the rent for the months of March and April, 1929. (This check, however, was returned to the plaintiff because it was incorrectly marked as payment for rent for the months of April and May.). Accompanying the check was a letter signed by the president of the plaintiff corporation which set forth-that this rent was being paid with the distinct understanding that no lease would be' signed until the terms thereof were satisfactory to both parties; that the plaintiff was unwilling to bind itself to the terms of the lease which was submitted in August of 1928, and, further, that, if these parties were unable to negotiate a contract, the plaintiff had other property in mind which it desired to lease. Under these facts and circumstances, it is clear that no lease was in existence at this time, as defendant’s offer was not acceptable to plaintiff, and def endánt was therefore in no way bound by its offer. ■ ■ . .

There does not now seem to be any dispute'as‘to these facts, but the evidence is conflicting' as to what' occurred at a meeting in the City of Monroe at the office of the attorney for the defendant organization on- June 27, 1929. At this meeting were the president and the vice-president of -the plaintiff corporation, and an officer and the attorney for the defendant, and the attorney’s son, who was himself a practicing attorney. According to plaintiff’s witnesses, at this meeting all of plaintiff’s previous objections to the lease as prepared by defendant’s attorney were waived, and the lease, together .with the notes, was signed by the plaintiff’s vice-president. This lease was not signed by any representative.of the defendant, because, according to plaintiff, certain officers who were required to sign on defendant’s behalf were not present at the meeting, and, again according to plaintiff,-the lease was left with the attorney to be signed later by these officers.' According to defendant’s witnesses, its attorney refused to enter into any negotiations with the plaintiff at this meeting of June 27, because plaintiff, although occupying the premises, had paid no rent to defendant. He refused to discuss any negotiations for a lease until plaintiff had paid the past due monthly rent, and informed plaintiff’s officers that he did not consider it a desirable tenant. Defendant's witnesses testified that plaintiff desired to execute non-negotiable promissory notes for the monthly rent, and even at this time objected to certain provisions, of the lease, and that the lease was not executed at this meeting, nor were the rent notes signed .at this time. According to the testimony of defendant’s witnesses, although the original lease called for negotiable notes, on the •same day, after the meeting, plaintiff through its attorney mailed to defendant remittance for the rent past due for the months of March, April, and May, and enclosed a series of 57 non-negotiable notes, on each of which had been written “Rent Note”, and these notes were payable to the defendant instead- of- to its order, as called for'- in the 'lease prepared by defendant’s attorney.

The' lease was never executed by the defendant, although its execution was requested by plaintiff’s'h'tforney on" numerous occasions, defendant informing plaintiff that there was no lease in existence between the parties. On'or about January 1, 1931, plaintiff vacated the premises, and instituted the present damage suit on March'21, 1931:

It is significant that plaintiff’s president in his testimony admitted that he wrote the words “Rent Note” on the notes which had been prepared -by defendant’s attorney and described in the lease, and, further, that he scratched something out thereon, although the record does not disclose what words he marked out on the notes.' It is also significant that, although according to plaintiff the lease which its witnesses testified was executed and left with defendant at the meeting of June 27 for the purpose of being signed by certain officers of the defendant who were not present at the meeting, the record discloses that the lease as prepared by defendant’s attorney was to be signed by the consul commander of the defendant organization, who had full authority to do so by a resolution of the organization, and who was present at the meeting of June 27, and that it was not necessary for any other official of the defendant organization to execute the lease.

In our opinion, from an analysis of all the testimony, the plaintiff itself fully realized that it was not occupying the premises under the terms of the lease drafted by defendant’s attorney, but was merely occupying the premises on a month-to-month basis.

The district judge, after hearing the witnesses, was of the opinion' that no contract was ever entered into by the plaintiff and the defendant, that they never came to a complete understanding in regard to the lease, and that the plaintiff had failed in its proof. The judge appears to- have been correct in his interpretation of the testimony, and the record does not disclose that he was manifestly erroneous in his appreciation of the facts of this case.'

In this court plaintiff contends that the defendant had the lease in its possession and remained silent to repeated demajids that it execute the lease and by such silence assented to it. The testimony of plaintiff’s own attorney shows that the defendant was not silent, as to the lease. This attorney had numerous conferences with defendant’s attorney as to why the defendant did not execute the lease, and no agreement was ever reached by the two attorneys. Plaintiff’s argument as to assent by .silence therefore has no merit.

For the reasons assigned, the judgment appealed from is affirmed; plaintiff to pay all costs.


author: FOURNET, Chief Justice.

text:
    216 La. 821
    Succession of TULLIER.
    No. 39595.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Jack P. F. Gremillion, Baton Rouge, for plaintiffs-appellants.
    Brumfield, Hebert & Rush, Baton Rouge, for mover-appellee.
   FOURNET, Chief Justice.

The appellee, Benjamin J. Tullier, whose opposition was sustained to the petition of six of his eight children to have one of them, Ira J. Tullier, appointed administrator of the succession of their mother, Mrs. Anna Mary Tullier, now moves to have the appeal, taken from the judgment maintaining the opposition, dismissed insofar as it is suspensive, and to have it declared devolutive.

. Mrs. Anna Mary Tullier died on March 27, 1943, leaving a surviving husband, Benjamin J. Tullier (appellee), and eight children born of that union (Clarence J. Tullier, Ira J. Tullier, Artemus J. Tullier, Elliott J. Tullier, Herman C. Tullier, Mrs. Hazel T. Meliet, nee Tullier, John H. Tullier, and Warren J. Tullier — the first six named instituted .these proceedings), her estate consisting of -her half interest in the property acquired during the community existing during her marriage to ap-pellee. Benjamin J. Tullier remarried on August 25, 1945. The appellants allege in their petition that an administration of the estate is necessary since the assets are being dissipated, and pray that letters of administration issue to Ira J. Tullier, after inventory and appraisement of the succession. The appellee filed an opposition to these proceedings, claiming that no ad- ' ministration of the estate is necessary inasmuch as there are no debts due by the estate of the decedent, that he has been at all times ready and willing to effect a division of the property, and that on the day before proceedings were filed in this matter a tentative agreement had been reached between him and the petitioners to the effect that the succession would be opened without provoking an administration and that after appraisement a division would be made. In the alternative he asked that, as surviving spouse, he be appointed administrator by preference. The trial judge decreed that there was no necessity for an administration of the estate, maintained the opposition and accordingly dismissed the application of Ira J. Tullier for letters of administration. After judgment was rendered, three of the petitioners joined in a motion for rehearing, which was denied, then perfected a suspensive appeal. On motion, the appellee , now urges that the appeal should .be dismissed insofar as it is suspensive, and that it should be declared devolutive.

Appeals are favored and aided by the courts. State ex rel. Durand v. Parish Judge, 30 La.Ann. 282; First Nat’l Bank of Ruston v. Lagrone, 164 La. 907, 114 So. 832; Pool v. Gaudin, 207 La. 403, 21 So.2d 424. One against whom a final judgment has been rendered in a cause in which an appeal is given by law, is entitled to- an appeal as a matter of right. La.Code of Practice, Art. 565. Having a right of appeal, the law itself regulates- the effect to be given such appeal. Young v. Village of Bossier City, 152 La. 18, 92 So. 719. When an appeal is perfected within the time required by law (10 days), and upon furnishing security, “it shall stay execution and all .further proceedings, until definitive judgment be rendered on appeal;” but if the appeal be not taken within the ten days-allowed, or if the appellant fail to furnish the security required under Article 575 C.P., such is a devolutive appeal in that it shall not stay execution of the judgment, for in that case “no surety shall be required, except to such an amount as the court may determine as sufficient to secure the payment of, the costs.” Art. 578, C.P. There are certain ,exceptions to the provision- that timely-perfected appeals stay • execution of the judgment, these being: Judgments relating “to.the nomination of tutors and curators of minors, of persons absent or interdicted, and of vacant successions. To the appointment of syndics of creditors, when the court orders that they shall administer provisionally”, Art. 580, C.P.; and judgments “appointing or removing a tutor or curator of a minor, interdicted or absent person, or of a vacant succession of absent heirs, or other administrators of successions”,. Art. 1059, C.P., in which cases the judgments are executed provisionally. When appealable, a judgment may always be appealed from su-s-pensively, unless it come within one of the excepted classes. Young v. Village of Bossier City, supra.

The primary issue in this case is the question of whether or not an administration is necessary. A judgment on this point does not fall under any classification of the judgments which are to be executed provisionally notwithstanding the timely perfection of an appeal, and there is no sound reason advanced why these exceptions should be extended; nor do we know of such reason. However, counsel for ap-pellee rely on Succession of Wintz, 111 La. 40, 35 So. 377, as being decisive of the issue presented here. It cannot be gainsaid that the court, in that cáse, held that a judgment refusing to appoint an administrator was appealable not-suspens-ively, but devolutively, giving .the following reason: “No suspensive appeal lies from a judgment dismissing a succession representative., and for the same reason, it. occurs to -us, that no suspensive appeal li.es from-a judgment refusing to appoint á representative.-” 111 La. at page 44, 35 So. at page 379. ' No- authorities' are offered in support of this statement nor did the opinion distinguish earlier authorities to the -contrary; and not only has ths case never been cited on the point since date of its rendition in 1902, but the reasoning is contrary- to numerous holdings of this Court to the effect that the exceptions may not 'be broadened or extended by judicial construction. See State ex rel. Marin v. Judge, 22 La.Ann. 23; State ex rel. Pearson v. Judge, 22 La.Ann. 61; State ex rel. Bachet v. Sommerville, 110 La. 734, 34 So. 757; Succession of Illg, 180 La. 207, 156 So. 224; Succession of Tyler, 192 La. 365, 188 So. 31. This Court, in the early case of State ex rel. Marin v. Judge, supra, when considering Articles 580 and 1059 of the Code of Practice and Article 1-1-13 of the Civil Code, said this : “These articles ' of the Codes- are applied when successions are opened to be administered, and the controversy is'between two or more persons- for the right of preference to the appointment of administrator, but not, as in this case, where the principal question is, succession or no succession; or whether - an administration is necessary, or legally possible. The demand made by one of the relators as heir, to be appointed in preference to the creditor applying, was only incidental, and dependent on the necessity for an .administration. From a judgment .on the issues in this controversy a suspen-sive appeal was properly, granted * * *.” - JEmphasis supplied.) This case has not only been cited -as authority in several -cases and as “most appropriate” in the recent case of Succession of Tyler, supra, but the views therein expressed were .quoted with approval in Succession of Illg, supra. We are therefore unable to follow the rule of the case of Succession of Wintz, since it is not supported by the jurisprudence and is violative of the statutory rule that exceptions should not be extended by construction.

For the reasons assigned, the motion .to -dismiss the appeal insofar as it is suspen-sive, and to have the appeal declared' devolutive, is denied.