author: HAWTHORNE, Justice. MOISE, Justice

text:
    216 La. 587
    STATE ex rel. MARCADE et al. v. CITY OF NEW ORLEANS.
    No. 39629.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Dissenting Opinion Dec. 12, 1949.
    Rehearing Denied Jan. 9, 1950.

      Henry B. Curtis, City Atty., and Grady C. Durham, Asst. City Atty., New Orleans, for appellants.
    Henry M. Robinson, New Orleans, Lamar Polk, Alexandria, and Herbert J. Garon, New Orleans, for relators and ap-pellees.
   HAWTHORNE, Justice.

The sole question presented by this motion to dismiss the appeal is whether the three days of grace provided in Article 883 of the Code of Practice, allowed an appellant for filing the transcript or for applying for an extension of time, are calendar days or judicial days.

In the instant case the appeal was made returnable on Friday, August 5, 1949. The transcript or record from the court below was not filed on or before this date, and appellant, the City of New Orleans, on Tuesday, August 9, filed a motion requesting an extension of the return day for such filing, which was granted. Subsequently by another order of court the return day was further extended until October 6, and the transcript was filed on October 5.

Appellees, Captain John V. Marcade, Sr., et al., take the position that the three days of grace provided in Article 883 ended at midnight on August 8, 1949, and that consequently appellant’s application for an extension of time filed on Tuesday, August 9, came too late. Appellant on the other hand contends that the three days of grace provided in the article are judicial days, and that consequently the application for the extension was timely filed.

Article 883 reads in part as follows:

“If the appellant has not filed in the Supreme Court, on the day appointed by the inferior judge, the record from the court below, and was prevented from doing so by any event not under his control, he may either in person or by attorney apply to the court before the expiration of three days, after which the appellee may obtain a certificate from the clerk declaring that the record has not been filed, and may demand a further time to bring it up, which may be granted by the court if the event causing the delay be proved to its satisfaction * *

Prior to the adoption of Act No. 92 of 1900 and Act No. 106 of 1908, the days of grace provided for the filing of the tram-script in this court were judicial days, under Act No. 45 of the Extra Session of 1870, Section 4, which provided:

“ * * * If the Supreme Court shall not be in session on the day fixed for the return day of any case, it shall be sufficient for the appellant to file the record within three pidicial days at the first session of the Supreme Court thereafter.” (All italics ours.)

In State ex rel. Davis v. Judges, 48 La.Ann. 1079, 20 So. 282, this court interpreted the term “judicial day” thus: “A judicial day is distinguished from a legal day in this: the former means a day in which the court is in session, and the legal day is one in which legal and judicial business can be transacted, as distinguished from dies non.”

Black’s Law Dictionary (Deluxe Ed.), page 507, defines “judicial day” as “A day on which the court is actually in session”.

Act No. 106 of 1908 provides:

“ * * * That the Judges of all the courts throughout the State shall fix the return days in all cases, civil or criminal, appealable to the Supreme Court, provided, that the Judge shall fix the return day in the order granting the appeal which shall not be less than fifteen nor more than sixty days from the date of the order, except by consent of parties.”

This act limited the return day in all cases to a period of not less than 15 days nor more than 60 days in which to file the transcript in this court from all courts throughout the state, including the Parish of Orleans, which had been excepted in the act of 1900.

In Brooks et ux. v. Smith et al., 118 La. 758, 43 So. 399, the appeal was made returnable to this court on August 15, 1906, and the return date was extended on application by appellants by order of this court to September 15. The transcript was filed on September 20. Appellants took the position that, since the appeal was made returnable during the vacation of the court, the filing of the transcript on or before the first day of the next term was timely. The court discussed the repugnancy between Act No. 45 of the Extra Session of 1870 and Act No. 92 of 1900, thus:

“The repugnancy between the provisions of the two acts are [is] obvious. The act of 1870 provides for the return of appeals to the Supreme Court at or within its regular terms, and when the court is not in session on the return day it is provided that it shall be sufficient for the appellant to file the transcript within three judicial days at the first session thereafter. Practically the return day was governed by the actual sitting of the court.
“On the other hand, under the act of 1900, the return day is fixed regardless of the sessions of the Supreme Court, and there is no proviso or warrant for the extension of the return day until the next term of the appellate tribunal. The act requires the judge to fix a day certain for the return of the appeal, within the limitation of 60 days from the date of his order. This return day may fall as well in vacation as in term time, but cannot be extended beyond 60 days, except by consent of the parties. The statute substituted a fixed return day for sessions of court, which might or might not be held, and by so doing converted uncertainty into certainty. Under its provisions the appellant is compelled to file his transcript on the return day as fixed by the order of court, and cannot take advantage of the vacation of the Supreme Court for the purposes of delay. Moreover, the appel-lee knows when the transcript should be filed, and, if not filed, can proceed with the execution of the judgment without waiting for the next session of the appellate court. The appellant cannot be granted more than 60 days, exclusive of the usual days of grace, to file the record, without a violation of the express limitation of the statute. * * * ”

Thus in the instant case the motion for an extension of time, which was filed on Tuesday, August 9, would have been timely under the provisions of the 1870 act and under the interpretation of that act by this court. See Redmond v. Mann et ux., 23 La.Ann. 373; Farmers’ & Manufacturers’ Aid Association v. Strawbridge et al., 24 La.Ann. 126; State ex rel. Magloire v. Barbin, Sheriff, 25 La.Ann. 667; Chaffe & Sons v. McIntosh et al., 36 La.Ann. 824; Holz v. Fishel et al., 40 La.Ann. 294, 3 So. 888; Lopes v. Sahuque, 114 La. 1004, 38 So. 810.

Under this jurisprudence and the interpretation of the term “judicial day”, the appellant in this case would have had until the end of the third day after this court reconvened in October for the 1949-1950 session in which to file the transcript or to -apply for an extension of time for this purpose. All of the cases cited above, however, were decided while the 1870 act was still in effect and are not decisive of the matter presented in this case. We consider that the cases of Keplinger et al. v. Barrow, 1913, 132 La. 244, 61 So. 217, and Laiche et al. v. Martin et al., 1914, 135 La. 798, 66 So. 226, decided after the adoption of the acts of 1900 and 1908, are controlling here.

In the Keplinger case the appeal was taken on October 18, 1911, and was made returnable “according to law”, and the sixtieth day would therefore have been December 17. The transcript was filed on December 22. The appellants took the position, in opposition to a motion to dismiss the appeal, that they had three days after the return day within which to file the transcript, and that these were judicial days - — that is, days on which the court was sitting — , and that the minutes of this cpurt showed that it did not sit in the week following December 17. In answering this contention this court said:

“Prior to the adoption of Act 92, p. 150, of 1900, and Act 106, p. 163, of 1908, the three days of grace in question were judicial days, Lopes v. Sahuque, 114 La. 1004, 38 So. 810, and cases there cited; but interpreting said acts in the cases of Brooks v. Smith, 118 La. 758, 43 So. 399, Welch v. Smith, 118 La. 761, 43 So. 400, and Carrol v. Magee, 118 La. 761, 43 So. 400, this court held that under said acts they are ordinary days.
“Adhering to this interpretation, we hold that the transcript was filed in this court too late.”

In the Laiche case, supra, the appeal was granted on June 19, 1913, and made returnable to the Court of Appeal for the Parish of Orleans according to law. On October 13 the appellants obtained from that court an order for an extension of time ‘in which to file the transcript, and subsequently other orders were issued expending the time to December 1. The transcript was filed on November 26. The appellees moved to dismiss the appeal on the ground that the transcript was not timely filed within the period prescribed by law, and that the orders granting the various extensions were improvidently and illegally granted by the court. The Court of Appeal dismissed the appeal, 11 Orleans App. 96. This court granted a writ of review, and after reviewing the decision of the Court of Appeal affirmed that judgment, saying in the course of the opinion [135 La. 798, 66 So. 227]:

“ * * * defendants contend that they were entitled to three judicial days, after the more remote return day, within which to lodge their record in the appellate court, and, as that court held no session between, say, August 19th, and the day upon which the record was filed, they were in good time. But, as our learned Brethren of the Court of Appeal say, the rule on that subject has been changed, and this court, construing Acts 92 of 1900 and 106 of 1908, has held that, in view of the fact that those statutes make appeals returnable in vacation, as well as term time, the days of grace are calendar, and not judicial days. * * * ”

Under this later jurisprudence, it is clear that the three days of grace provided in Article 883 of the Code of Practice are calendar days and not judicial days; that the motions for extensions in the instant case came too late; that the orders of the court extending the time in which to file the transcript were improvidently issued and were illegal and invalid, and that the appeal must be dismissed.

In concluding that the three days of grace are calendar days and that the appeal must be dismissed, we are mindful of the general rule to the effect that, where a statute allows a certain period of time in which to perform or do a legal act, after which time the performance or the doing of the thing would be without effect, if the time exceeds a week, intervening Sundays and holidays are to be included in the computation; if the time is less than a week, intervening Sundays and holidays are to be excluded. This rule has been recognized in the following cases, and,we think it is applicable here, although none of these cases dealt with the period of time for filing an appeal: State ex rel. State Pharm-aceutical Association et al. v. Michel, 52 La.Ann. 936, 27 So. 565, 49 L.R.A. 218, 78 Am.St. Rep. 364; Fellman v. Mercantile Fire & Marine Ins. Co., 116 La. 723, 41 So. 49; Johnson v. Murphy, 124 La. 143, 49 So. 1007; Levy v. Michon Bros., 142 La. 825, 77 So. 644; Frank v. Currie, La.App., 172 So. 843.

In the case here under consideration, although Saturday and Sunday were legal holidays and both of these days fell within the period of grace, they are to be included in computing the delay for filing the transcript or applying for an extension of time, since the period of time for filing a transcript in this court is fixed by the 1908 act at not less than 15 days nor more than 60 days, and the three days provided in Article 883 are merely an extension of this time, or, as has often been said, “days of grace”. Since the minimum time fixed by the statute for the filing of the transcript is more than a week (15 days), intervening Sundays and holidays are to be counted.

Under the well settled jurisprudence, however, if the last day of grace falls on a legal holiday, the appellant has the following day. See Kelly, Weber & Co. v. F. D. Harvey & Co., Inc., et al., 178 La. 266, 151 So. 201; Mansur v. Abraham et al., 183 La. 633, 164 So. 421, and authorities therein cited. The last day of grace in this case fell on Monday, August 8, which was not a legal holiday, and on that day appellant could have legally filed the application for an extension of time in which to lodge the transcript in this court.

In support of the contention that the three days of grace are judicial days, appellant calls our attention to Act No. 234 of 1932, in which we find the phrase “within three judicial days after the return day”. Appellant concedes that under the interpretation of this act by this court it has no application to a motion to dismiss an appeal made on the ground that the transcript was not filed by the appellant in the Supreme Court on the return day or within three days thereafter, or within ah extension of time granted by this court A reading of the act discloses that it was the Legislature’s intention to prevent the dismissal of appeals for the filing of an incomplete transcript or for the omission of an exhibit or for some purely technical reason, without first giving the appellant two days in which to correct the error. Certainly it was not the intention of the Legislature to change the well established rule that the three days of grace are not judicial days.

Appellant also cites in support of its contention the cases of Levy v. Levy et al., 52 La.Ann. 1920, 28 So. 246; Mix v. Hawkins, 115 La. 12, 38 So. 877; Hays et al. v. Mayer et al., 117 La. 1067, 42 So. 505; Roy O. Martin Lumber Co. v. Mullen, 173 La. 390, 137 So. 72. None of these cases is pertinent or factually in point, and they do not support appellant’s contention. It is true that in the Martin Lumber Co. case the expression “judicial days” is found. This expression was ill-advisedly used, and furthermore that part of the opinion was merely obiter dictum, as the transcript in that case was filed one day after the appeal was made returnable and therefore was filed within the days of grace, regardless of whether they were judicial days or otherwise. Other cases cited by appellant were decided prior to the effective dates of the 1900 and the 1908 acts, which we have discussed hereinabove.

For the reasons assigned, the orders of this court granting extensions of time in which to file the transcript, being improvidently issued, illegal, and invalid, are recalled, and it is now ordered that the appeal be dismissed; costs of these proceedings are to be paid by appellant, City of New Orleans, insofar as allowed by law.

MOISE, J., dissents and will file written reasons.

MOISE, Justice

(dissenting).

A reading of Article 883 of the Code of Practice and Act No. 234 of 1932 demonstrates the fact that our legislature was liberalizing the constitutional right of appeal. The construction placed on these legislative enactments by the majority opinion of the Court restricts the constitutional right of appeal, for the majority opinion holds that the three-day period of grace means ordinary and not judicial days.

Article 883 of the Code of Practice reads:

“If the appellant has not filed in the Supreme Court, on the day appointed by the inferior judge, the record from the court below, and was prevented from doing so by any event not under his control, he may either in person or by attorney apply to the court before the expiration of three -fays, after which the appellee may obtain a certificate from the clerk declaring that the record has not been filed, and may demand a further time to bring it up, which may be granted by the court if the event causing the delay be proved to its satisfaction; the court may even grant an injunction to the appellant, during the further time allowed, to suspend the execution on the judgment appealed from, if at the time of petitioning for such further delay, the appellee has already required of the clerk the certificate necessary for the pursuit of such execution.”

The pertinent part of Act No. 234 of 1932 reads:

“That whenever an appellant files an incomplete transcript, or files the transcript or a further application for an extension, within three judicial days after the return day * *

The issue here is the application for an extension of time in which to file a transcript in this Court. In clear and unambiguous language the last expression of the legislature used in the statute, Act No. 234 of 1932, is that the three days of grace for the filing of the transcript for a further extension of time are judicial and not ordinary days. The admonition of Article 13 of the Revised Civil Code is that “When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.” For the purposes of this dissent, I take it that the term used in the majority opinion “ordinary days” means calendar days, and the term used by the legislature in its statute, Act No. 234 of 1932, “judicial days”, referred to days that a court transacted business.

The record discloses that the return date in this appeal was fixed by the judge of Division “D” of the Civil District Court for the Parish of Orleans for Friday, August 5, 1949. On Tuesday, August 9, 1949 the City of New Orleans, appellant, filed in this Court a motion requesting an extension to September 6, 1949 for filing of the transcript of appeal, which was granted. Subsequently the return day was further extended until October 6, and the transcript was filed on October 5. The question at issue is whether the motion for an extension for filing the transcript, filed on Tuesday, August 9, 1949, was timely filed. The original return day was a Friday (August 5) ; the day following was Saturday, August 6th, a day on which the Clerk’s Office of this Court is not open. The 7th of August was a Sunday, a dies non. The 8th was a Monday, and on the next day, Tuesday, August 9th, the motion for an extension of time was filed. Under our computation this motion was filed within the three judicial days of grace, Act No. 234 of 1932, and the days of grace must of necessity be “judicial” and not “calendar” days, because the appellant has no chance of showing that he was free of fault, or be able to file the transcript other than on a judicial day.

Our Court has decided that the three days of grace are judicial days:

Roy O. Martin Lumber Company v. Mullen, 1927, 173 La. 390, 137 So. 72; Holz v. Fishel et al., 40 La.Ann. 294, 295, 3 So. 888; Redmond v. Mann, 23 La.Ann. 373; Brickell v. Conner, 10 La.Ann. 235; Farmers’ & Manufacturers’ Aid Ass’n v. Strawbridge, 24 La.Ann. 126; Vancampen v. Morris, 6 Rob. 79; Palfrey v. Winter, 8 La. 205, 206; Pond v. Horton, 7 La. 176; Rhea v. The John Simonds, 15 La.Ann. 712; Lacroix v. Bonin, 33 La.Ann. 119; Pierce v. Cushing, 33 La.Ann. 401; Police Jury of New Orleans v. Garrett, 19 La.Ann. 122; Copley v. Routh, 3 La.Ann. 189; Cousin v. Johnson, 21 La.Ann. 210; Dalton v. Viasco et al., 18 La.Ann. 651; Moriere v. Robinson & Jones, 20 La.Ann. 229; Verret v. Gaudin, 28 La.Ann. 138; French v. Harrod, 9 La.Ann. 21; Ducournau v. Levistones, 3 La.Ann. 245; Wood & Roane v. Wood, 32 La.Ann. 801, 804; Mix v. Hawkins, 115 La. 12, 38 So. 877; Levy v. Levy, 52 La.Ann. 1920, 28 So. 246; Hays v. Mayer, 117 La. 1067, 42 So. 505; Lopes v. Sahuque, 1904, 114 La. 1004, 38 So. 810; Rost v. St. Francis’ Church, 5 Mar., N.S., 191.

The last solemn expression of legislative will is that the three days of grace are judicial days, and when the majority opinion of the Court gives no effect to the language of Act No. 234 of 1932, which says they are judicial days, and under the pretext of pursuing the spirit of the law declares them to be ordinary days, that is a refinement which I do not fully understand. When the majority opinion so holds, it is not deciding a judicial controversy, but is assuming a position of authority over the governmental acts of another co-equal department of government, an authority which plainly we do not possess.

I respectfully dissent.


source: Caselaw Access Project

author: LeBLANC, Justice.

license: Public Domain

text:
    216 La. 603
    BANK OF BATON ROUGE v. HART ESTATE, Inc.
    No. 39592.
    Supreme Court of Louisiana.
    Jan. 9, 1950.
    Brumfield, Hebert & Rush, Baton Rouge, for opponent-appellant.
    Odom & Belanger, Baton Rouge, for State Bank Commissioner.
    Borron, Owen, Borron & Delahaye, G. T. Owen, Jr., Baton Rouge, for Stockholders’ Committee.
   LeBLANC, Justice.

On February 19, 1932, Robert A. Hart, now deceased, purchased from the Bank of Baton Rouge, fifty (50) certificates of deposit in the amount of One Thousand ($1000.00) Dollars each. These certificates were all in printed form and were signed by W. T. Palfrey, Cashier. They were' all made payable six months after date, “only on return of the certificate” and on each there appears an added stipulation in typewritten form that they each bear four (4%) per cent interest from date and that accrued interest was to be allowed if the amount of the principal was left on deposit four months.

On February 18, 1933, or exactly one year from the date of each certificate, the Bank issued to R. A. Hart, and he evidently accepted, two additional certificates of like tenor and import, each in the sum of One Thousand ($1000.00) Dollars, the only difference being that accrued interest was to be allowed from date until payment. It may here be stated that the last two certificates were issued and accepted in payment of the interest due for one year on the original fifty certificates.

On July 24, 1933, following the general bank crisis throughout the country, the Bank of Baton Rouge went into liquidation and-all of its business and affairs were taken over and administered by State Bank Commissioner, all in accordance with the laws of this State, and more particularly, Act 300 of 1910.

In the course of liquidation various payments referred to as liquidating payments and liquidating dividends were made over a period beginning February 16, 1938 and ending July 14, 1947, and the face value of the certificates mentioned was paid in full and payments were acknowledged and receipted 'by the holder. None of the interest due on any of them, however, was paid.

The liquidating payments and the liquidating dividends were all paid in accordance with provisional accounts and tableaux of distribution, filed at the time in the liquidation proceedings in Court, after due advertisement and upon homologation and approval of same by judgment of the Court. No opposition was filed by any one to any of these accounts nor was an appeal taken from any of the judgments of homologation.

On November 16, 1948, the State Bank Commissioner filed his final account in court to which Hart Estate, Inc., the present owner of the certificates of deposit, filed an opposition demanding interest in the sum of Eight Thousand and Five Hundred, Forty-six ($8546.92) and 92/100 Dollars. This opposition was met with an exception of no cause or right of action and a plea of res adjudicata filed on behalf of the State Bank Commissioner. The day following the filing of these pleas, certain parties styling themselves the “Stockholders Committee” and allegedly representing the stockholders of the Bank, intervened to contest the opposition filed by Hart Estate, Inc., and joined the State Bank Commissioner in his exception of no cause or right of action and plea of res adjudicata.

These pleas were tried and submitted to the district Court on an agreed stipulation of fact. They were both sustained by the district judge, who then entered judgment rejecting the demand made by the opponent and dismissing the opposition at its cost. The appeal is from a judgment so decreeing.

The resume of the pleadings and the statement of facts so far made reveal that we are confronted with issues which are similar in almost every respect to those which appeared before this Court in the the case of Liquidation of Canal Bank & Trust Co., 211 La. 803, 30 So.2d 841, 851. The question presented relates to the right of a depositor of money in a state bank to claim interest on his deposited funds during the liquidation of the bank by the State Bank Commissioner. The matter was thoroughly discussed in the opinion in the Canal Bank case, cited, in which it was clearly held that such depositor was not entitled to interest on that part of his claim which had been paid under a tableau of distribution that had been approved and ho-mologated by a judgment of Court, all in accordance with the provisions of law relating to such matters. Pointing out the procedure that has to be followed, the opinion states as follows: “In the performance of his duty in distributing the available cash assets of the bank to its creditors, the bank commissioner must, as in judicial liquidations, obtain a judgment of court homolo-gating the account and this judgment is only obtained after the commissioner has filed a tableau of distribution with the clerk of court and it has been duly advertised so that all persons having an interest therein may oppose it. It is only in the event of no opposition or after an opposition that is filed has been disposed of by the court that the tableau is homologated by judgment of the court and this judgment, as above pointed out, settles once and for all the matters that are therein disposed of and they can never again be inquired into. Woodward, Wight & Co., Ltd., v. National Box Co., Inc. (168 La. 701, 123 So. 296); In re Phoenix Building & Homestead Association, supra (203 La. 565, 14 So.2d 447).”

It was mainly on that authority that the trial judge sustained the exceptions in the present case.

But, counsel for opponent contend that the issue here is different for the reason that in this case we are dealing with interest that is provided for and fixed by contract between the parties whereas in the Canal Bank case, the Court was dealing with legal interest. They urge that the interest is not only provided for 'by the terms of the certificates of deposit themselves and thus became an integral part of the contract or agreement under which the Bank agreed to pay the certificates but beyond that, the Cashier of the Bank, acting in his capacity as such and as its agent, acknowledged by letter written to Mr. Hart that the certificates would bear interest as stipulated. They do not stress the point, however, that this added very much to the contract created by the certificates themselves.

Whilst it is true that there is that difference in the kind of interest that is claimed in the two cases, the fact remains that there is no difference with respect to the issue that is here presented and it is immaterial in view of the holding in the Canal Bank case. What operates as an insurmountable barrier to the opponent’s claim is the waiver or release of interest as established by the terms of article 2925 of the Revised Civil Code, which reads as follows: “The release of the principal, without any reserve as to interest, raises the presumption that it also has been paid, and operates a release of it”. That presumption, the Court held in the Canal Bank case, is “A legal or conclusive presumption of law which under the provisions of Article 2287 of the Revised Civil Code dispenses with all other proof in favor of the person for whom it exists.”

In connection with Article 2925 -of the Civil Code, counsel for opponent, whilst conceding that its terms operate as a release of interest, still maintain that the release is not effective in this case because there was the reservation also provided for by its terms which negated the release. However, counsel point to no specific reservation. To the contrary, the agreed stipulation of facts signed by them and in which it is shown that the principal due on all the certificates of deposit had been paid in full, no where indicates any reservation as to the interest now claimed.

Counsel argue further that the reservation provided for in Article 2925 of the Civil Code is intended to apply only to legal interest, or interest ex mora, and does not apply to interest which a party has bound himself to pay by contract. But this contention also is answered in the Canal Bank case wherein the case of Grennon v. New Orleans Public Service, Inc., 17 La.App. 700, 136 So. 309, is cited and referred to with approval, and in which it is presua-sively shown that the distinction sought to be made, even though existing in the common law jurisdictions, does not exist in this State in view of the express provisions of Article 2925 of the Civil Code.

The lower Court correctly sustained the exceptions and dismissed the opposition and the judgment appealed from is accordingly affirmed at the costs of the opponent, appellant herein.


author: HAWTHORNE, Justice. PONDER, Justice

text:
    216 La. 610
    STATE v. HONEYCUTT.
    No. 39460.
    Supreme Court of Louisiana.
    Jan. 9, 1950.

      Leon S. Haas, Jr., Robert F. De Jean, L. Austin Fontenot, Jr., Opelousas, for appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Ass’t. Atty. Gen., J. Y. Fontenot, District Attorney, Opelousas, for appellee.
   HAWTHORNE, Justice.

Defendant, Edward (W. T.)- Honeycutt, charged in a bill of indictment with the crime of aggravated rape, tried, convicted, and sentenced to death, has appealed to this court. For reversal of the conviction and sentence he relies on six bills of exception. We find merit in Bill of Exception No. 3, which was reserved to a ruling of the court admitting in evidence a written confession made by the accused.

The indictment charges that the crime was committed on December 1, 1948, and the record discloses that the accused was arrested on the same day and was incarcerated in the parish jail at about 6:30 p. m. The confession was made by the accused to a deputy sheriff in the presence of three other individuals in the radio room of the sheriff’s office about 7:00 o’clock in the morning of December 2. In laying the foundation for the admission of the confession, the State offered evidence and proved by all parties present at the time the confession was given that at that time no promises were made and the accused was not threatened or harmed in any way. Counsel for defendant concede this to be true, and the defendant himself admitted it in his testimony relating to the admissibility of the confession. If the evidence of what occurred in the sheriff’s office was all that we had before us, there would be-no question that the confession was admissible.

The defendant, however, was called to the witness stand after the State had shown the facts and circumstances surrounding the giving of the confession in the sheriff’s office at 7:00 o’clock in the morning, and he testified that on the afternoon of his arrest, and at the time he was placed in the parish jail by several officers, an attempt was made to have him confess; that at this time in an effort to obtain a confession the deputy sheriff to whom he gave the confession on the following morning beat and whipped him, and threatened to hand him over to the people of the community where the rape had been committed; that he confessed because he was afraid that he would be whipped again, and that he was again told on the morning of December 2, prior to being taken down to the sheriff’s office, that, if he did not tell the truth, he would be taken back to the community where the rape occurred. In reply to a question on cross-examination as to whether he had 'been whipped into giving the confession in the sheriff’s office, he stated: “No, I had already been whipped. If I had got down there and told them that I wasn’t —if I had tried to change, I was scared they would whip me again. I just repeated it over again.” In other words, the accused testified that he confessed on the night of his arrest because of physical mistreatment and threats, and that this confession was simply reduced to writing in the sheriff’s office the next morning.

The sole question before us is whether the evidence adduced by the State is sufficient to prove that this confession was freely and voluntarily made, or whether the State has discharged the burden of proving the admissibilty of the confession.

The testimony introduced by the State discloses that at about 6:30 on the night of December 1 the sheriff of a neighboring parish, accompanied by one of his deputies, by Troopers Dunbar and Lafieur, and by Deputy Sheriff Bourque of St. Landry Parish, brought the accused to the parish seat of St. Landry Parish and turned him over to the deputy sheriff to whom the written confession was given on the following morning. All of these officers went into the jail w-ith the prisoner and the deputy into whose custody he 'had been given, and remained with them for about 20 or 30 minutes. According to the testimony of the accused, it was at this time that he was whipped and threatened. At the end of this interview, the deputy sheriff who had charge of the prisoner and all the other officers left the jail together. The deputy sheriff, according to his own testimony, did not again see or talk to the prisoner until the following morning, when he went to escort him to the sheriff’s office for the purpose of obtaining the confession.

The evidence of the State shows conclusively that all of these other officers were present at the time the defendant states he was whipped and threatened by the deputy sheriff, and the State actually summoned Troopers Dunbar and Lafleur, Deputy Bourque, and the deputy from the neighboring parish, who was present during the trial and testified in the case on the merits. Nevertheless, not one of these officers was called to rebut the accused’s testimony or to corroborate that of the deputy sheriff, who had testified, when called as a witness by the State in laying the foundation for the admission of the confession, that the accused was not threatened or harmed in any way on the evening of his arrest.

The Bill of Rights found in our Constitution provides that no person under arrest shall be subjected to any treatment designed by effect on body or mind to compel confession of crime, and that no confession shall be used against any person accused of crime unless freely and voluntarily made. La.’Const. of 1921, Art. 1, Sec. 11. The rights guaranteed by these provisions of the Constitution of our state are of paramount importance to an accused to 'insure that he has a fair and impartial trial, and our oath of office compels us to enforce these provisions.

The provisions guaranteeing these rights are reiterated in Articles 451 and 452 of the Code of Criminal Procedure, which provide that, before what purposes to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises, and that no person under arrest shall be subjected to any treatment designed by effect on body or mind to compel a confession of crime. Moreover, in the Criminal Code the securing of a confession by any officer by threats, violence, or any means of inhuman treatment is made a crime and punished by fine and imprisonment. La. Criminal Code of 1942, Art. 40.

Under these provisions of our law, for a confession to be admissible in evidence against an accused in any criminal case, the burden of proof is on the State to show that such confession was freely and voluntarily given and not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. In numerous cases this court has gone so far as to hold that, before what purports to be a confession can be introduced in evidence, it must be shown, not only affirmatively but by proof beyond a reasonable doubt, that it was free and voluntary. See State v. Henry, 196 La. 217, 198 So. 910; State v. Graffam, 202 La. 869, 13 So.2d 249; State v. Ellis, 207 La. 812, 22 So.2d 181; State v. Ross, 212 La. 405, 31 So.2d 842; State v. Wilson, 214 La. 317, 37 So.2d 804. It is not necessary, however, for us to go so far as to apply that rule here because in this case the State has not even sustained the burden of showing affirmatively that the confession was freely and voluntarily given.

The only evidence offered by the State relating to the interview at the time when the defendant says he was mistreated and threatened is the testimony of the deputy sheriff who the defendant says mistreated and threatened him. Under the facts and circumstances of this case, we think it was incumbent upon the State to call other witnesses to corroborate the testimony of the deputy who took the confession and to rebut defendant’s own testimony with reference to his mistreatment. The State could have called for this purpose some or all of the five other officers who were with the deputy and the prisoner on the night of December 1. What was said in State v. Robinson, 215 La. 974, 41 So.2d 848, 854 (on rehearing), is pertinent here, that is:

“ * * * We think that after the accused testified in detail about the mistreatment he received and the inducements offered him at the time he confessed, the jailer should have been recalled and reexamined with respect to the particulars testified to by the accused in order that the trial judge might have been afforded a better opportunity to weigh and decide this very important issue.”

We think that, after the accused here had testified as to the mistreatment he received and the threats made against him in order to induce him to confess, the five officers present at the time, or any of them available, should have been called and examined with respect to the particulars to which the accused had testified, in order that the trial judge might have been afforded a better opportunity to weigh and decide the very important issue of whether the confession was freely and voluntarily given.

The trial judge permitted the confession to be introduced in evidence because he concluded, according to his per curiam, that the testimony of the accused was unworthy of belief. The admission of the confession in evidence against the accused, for this reason only, deprived him of the protection guaranteed to him by the Constitution and laws of this state and denied to him a fair and impartial trial, since other witnesses were available to testify concerning the matter. The burden was on the State to show affirmatively that the confession was free and voluntary.

In the instant case, we are not called upon to decide whether the confession was obtained by means of threats or physical mistreatment as contended by the accused, and as to this we express no opinion ; but we do conclude that there was not sufficient proof on the part of the State of its voluntary character for its admission under the constitutional and statutory provisions, since there was no testimony on the part of the various officers who were present in the jail with the deputy sheriff and the prisoner on the night of his arrest to rebut his specific charges of threats and mistreatment.

For the reasons assigned, the conviction and sentence are reversed and set aside, and the case is ordered remanded for a new trial.

PONDER, dissents.

PONDER, Justice

(dissenting).

It appears that the majority opinion is predicated on a statement made in the case of State v. Robinson, 215 La. 974, 41 So.2d 848, 854, to this effect: “We think that after the accused testified in detail about the mistreatment he received and the inducements offered him at the time he confessed, the jailer should, have been recalled and re-examined with respect to the particulars testified to by the accused in order that the trial judge might have been afforded a better opportunity to weigh and decide this very important issue.” The majority opinion overlooks the law laid down in that case and relies on a statement made relative to the testimony of an accused which had not been contradicted. The factual situation in this case is entirely different. The law laid down in the Robinson case is to this effect:

“It therefore follows that the admissibility of a confession in evidence is predicated upon the state’s establishing its free and voluntary character by proof that is direct and positive, and, under our jurisprudence, this fact must not only be established to the satisfaction of the trial judge out of the hearing of the jury but his ruling with respect thereto will not be disturbed on appeal unless clearly not supported by the evidence. Once in evidence, of course, it is for the jury to say what weight shall be accorded a confession.”

There were two confessions introduced which were proved to have been freely and voluntarily made. The defense does not contend that there was any thing irregular at the time the confessions were made, but contends that the accused was whipped the night before the first confession was made and that the accused was laboring under fear at the time he made the confessions. The contention is based solely upon the testimony of the accused. His testimony is very contradictory and unsatisfactory. He stated in one instance that he did not know who whipped him and in another instance that Deputy Sheriff Richards whipped him. He testified that there were other persons present but did not identify them. When asked who the parties were he stated that he did not remember.

It is stated in the majority opinion to the effect that the five officers present at the time the accused was placed in jail or any of them available should have been called and examined with respect to the particulars to which the accused had testified. These five witnesses testified on the merits of the case and were available to the accused. Deputy Sheriff Richards and Trooper Lafleur testified that the first confession was freely and voluntarily made when the admissibility of the confession was inquired into. While Richards was on the stand he was asked under cross examination, after placing him on his guard, if he had whipped the accused or told him that if he did not confess that he would turn him over to the people of Eunice to be dealt with. Richards denied having whipped him or having made any such statement. It would have served no useful purpose to recall Richards to reiterate his testimony. Immediately after Richards had testified that the confession was voluntarily made, the state called Trooper Lafleur, who testified to the same effect and counsel for the defendant did not interrogate him as to what happened the night before even though the witness was supposed to have been present.

The defendant did not testify that these witnesses were present at the time he claims the whipping was administered and there is no proof in this record to show that they were present on such an occasion. The sheriff of the adjoining parish and the other officers who accompanied Richards left immediately after the accused was placed in jail. While Richards was on the stand he was asked by counsel for the accused how he reconciled his statement, that these officers remained about 20 or 30 minutes after they arrived at the jail, with the testimony of one of these officers who had testified on the previous day that they had turned the defendant over to Richards and left. Richards explanation was to the effect that as soon as the accused was placed in jail they walked to the automobile -in front.

There is no proof in this record that these five officers were present at the time that the accused claims he was whipped and the accused himself does not testify that they were. In absence of any evidence to show that they were present, I believe that the majority opinion is in error in stating that they should have been called to rebut the testimony of the accused. Moreover, counsel for the accused had ample opportunity to question Richards and Trooper Lafleur when they testified on the inquiry into the admissibility of the first confession. The other witnesses were available to the defendant as well as the state because they testified on the merits of the case.

The ruling of the trial judge on the admissibility of the confessions should not be disturbed on this appeal because it is supported by the evidence. The only evidence to show that the accused was subjected to any violence or threats was his own testimony which the trial judge stated in his opinion was unworthy of belief. A mere reading of his testimony in this record amply justifies the trial judge in his conclusion. The accused’s testimony is vague,, uncertain, contradictory and he made no effort to identify the number of people present at the time he claimed he was whipped or who they were. When pressed on this point, his answer was that he did not remember. I do not see how the state could rebut this testimony or what witnesses should be called for that purpose. Richards testified that no violence or threats were made on that night and Trooper Lafleur when he was asked a general question, on inquiry as to the admissibility of the first confession, “Was Honeycutt, in your presence, put under duress or fear by threats or intimidations of any kind?” replied, “No, Sir.”

For the above reason, I, respectfully, dissent.


author: MOISE, Justice.

text:
    216 La. 622
    STATE v. NICHOLS.
    No. 39588.
    Supreme Court of Louisiana.
    Jan. 9, 1950.
    Earl Edwards, John P. Laborde, Marks-ville, for defendant and appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Chas. A. Riddle, Jr., Dis. Atty., Marksville, for ap-pellee.
   MOISE, Justice.

The defendant Allan Nichols, was indicted, tried and convicted of “the crime of Manslaughter” and was sentenced to serve 4 years and 10 months in the penitentiary. From this conviction and sentence he appeals.

The record reveals that the indictment was returned against the defendant on May 21, 1949. He was arraigned on May 25, 1949, and entered a plea of “not guilty”, which he later withdrew for the purpose of filing a motion to quash the indictment and to quash and set aside the petit jury venire. The case was fixed for trial on June 15, 1949, the term of court having opened on June 6, 1949. On June 14, 1949, the court gave the defendant permission to withdraw his plea of “not guilty” so that he might file a motion to quash the indictment. This motion was taken up, tried and overruled on June 15, 1949, and immediately thereafter the accused was placed on trial and found guilty as charged and sentenced.

The motion to quash the indictment and set aside the petit jury venire is based on six grounds:

First, that the indictment charging the accused “* * * does not set forth any crime or the violation of any criminal statute of this state”. We have held in the case of State v. Iseringhausen, 204 La. 593, 16 So.2d 65, 69, that such an indictment does set forth the crime of manslaughter : “* * * It is sufficient to charge the accused in the language of the statute, and he would need no further information to put him on his guard in the preparation of his defense.”

Second, that “* * * Article 31 of the Criminal Code, covering the crime of manslaughter * * * is unconstitutional in that the crime intended to be denounced thereby is inadequately and improperly defined”. To our mind, Article 31 of the Criminal Code, defining the crime of manslaughter, makes clearly manifest the offense intended to be defined.

Third, that Article 235 of the Code of Criminal Procedure, as amended, authorizing the short form indictment, is unconstitutional, in that the crime of manslaughter merely charges the defendant with “unlawful killing”, and that the accused is not sufficiently informed of the nature of the charge against him, as required by the Constitution of the State. The weight of our jurisprudence upholds the constitutionality of Article 235 of the Code of Criminal Procedure and the short form of indictment set forth therein.

In State v. Capaci, 179 La. 462, 154 So. 419, 423, in considering Articles 235 and 248 of the Code of Criminal Procedure, this Court held that these articles dealt “* * * exclusively with the confection of indictments, a matter of pleading, and do not change the substantive law as to the essential elements of the crime charged.”

In State v. White, 172 La. 1045, 136 So. 47, we stated: “The indictment, as con-fected, does not, in our opinion, deprive defendant of due process of law, nor deny to him his constitutional right to be informed of the nature and cause of the accusation against him.”

Finally, our Court has completely put at rest, and the jurisprudence is now settled (although some may contend not theoretically correct) that in the codal article providing the short form of indictment the provision to the effect that the district attorney may be required to furnish a bill of particulars setting forth more specifically the nature of the offense charged amply protects the defendant’s constitutional guarantee that he shall be fully informed of the nature and character of the accusation. State v. Chanet, 209 La. 410, 24 So.2d 670; State v. Davis, 208 La. 954, 23 So.2d 801, and State v. Iseringhausen, supra.

The fourth, fifth and sixth grounds urged, relating respectively to the im-panelling of the Grand Jury, the alleged “systematic exclusion” of the negro race on the Grand Jury service and Petit Jury service are, in relation to cases of this nature, like Banquo’s Ghost, continually popping up. Nevertheless, these grounds have merit.

It is alleged in the motion to quash that there were no Grand Jurors who were Negroes in the regular panel of twenty names from which this particular Grand Jury was drawn. It is further alleged that no negro Grand Juror has served in the Parish of Avoyelles in the last 40 years and that in the entire three hundred names comprising the General Venire, there were only two or three names which were the names of Negroes on the entire panel. The same charge is made as against the Petit Jury which tried this defendant — that in the Petit Jury names drawn, and in fact, in the entire 300 names comprising the General Venire, there were only two or three names included therein of Negroes, and in the Petit Jury for the week during which this defendant was tried, there was only one name of a Negro included thereon and he could not have been accepted because of his relation with the deceased by marriage.

Evidence was taken in which the Sheriff of Avoyelles Parish, the Clerk of Court of the Parish and several members of the Jury Commission were called to testify. The Clerk of Court, who is Ex-officio member of the Jury Commission, testified that he had not placed the names of any Negroes in the Venire and he gave his personal feeling as being of the opinion that Negroes should not serve on juries. He further stated that he had been in public life for some 15 years or more and had never known of a Negro to serve either on a Grand or a Petit Jury. Two members of the Jury Commission were called by the defendant. Both of these testified that they had not placed the names of any Negroes in the Jury Venire. One of these Commissioners testified that he did not know of any Negro jurors at his end of the ward who were qualified to serve.

In connection with the evidence taken by the defendant, exhibits from the 16th Census of the United States of 1940 were produced showing a compilation of the Negro population of the State of Louisiana and the educational status of this population. From this document, which was admitted as evidence, it is contended by defendant that there were some 10,556 Negroes in the Parish of Avoyelles in a total population of 39,256. Of course, percentages are not complete criteria for determining these questions but the defendant in this case alleged that there were only about 12% of the Negro population in Avoyelles Parish who were illiterate and incompetent to serve and there is proof in the record dealing with those of the ages from 25 years and over, and that possibly only about 25% thereof are illiterate. On the trial of this particular issue, the defendant further introduced the testimony of the Sheriff of the Parish of Avoyelles, who testified that he had closely examined the names of the entire three hundred names comprising the General Venire and to his personal knowledge there were not more than three names therein which were names of members of the Negro race.

The State offered no evidence to contradict the allegations of the defendant, and these allegations are substantiated by the Sheriff of the Parish, who testified that no Negroes had served as Grand Jurors in the Parish of Avoyelles in the past forty years, nor had it ever been known that one had served as a Petit Juror in any case, and that on a few occasions which were known to him one or two Negroes had been placed upon the venire, but either had not been called or had not served.

This statement of facts tracks the first case of Pierre v. State, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757, where it was held that the evidence was sufficient to show that there had been a deliberate and systematic exclusion of Negroes from jury service because of race, in violation of the laws and the Constitutions of Louisiana and the United States, since in that case there were only two Negroes included in the Jury list of 300, and only one Negro had served as a Juror in more than forty years in the Parish with a large Negro population. The case was reversed and remanded to our Court on a writ of cer-tiorari granted by the United States Supreme Court. Following the decision of the United States Supreme Court, the defendant was again tried and convicted and he again appealed. We found that since (in this second case) the authorities had in some measure corrected some of the complaints made during the original trial, and there had been placed in the Venire of 300 names some 52 Negroes, and 5 Negroes were on the Grand Jury panel of 20 and 2 Negroes on the Grand Jury of 12, and further, one Negro actually sat on the jury that tried and convicted the defendant, there had been no “systematic exclusion” of members of the Negro race from the Grand or Petit Juries; and we therefore affirmed the conviction. 198 La. 619, 3 So.2d 895. This second case also went to the United States Supreme Court, where the application for a writ of cer-tiorari was denied. 314 U.S. 676, 62 S.Ct. 186, 86 L.Ed. 541.

The State relying on Article 202 of the Louisiana Code of Criminal Procedure contends that the motion to quash the indictment and set aside the petit jury venire comes too late. Clearly, the State is in error in this contention for Article 202 of the Code specifically provides: “All objections to the manner of selecting or drawing any juror or jury or to any defect or irregularity that can be pleaded against any array or venire must be filed, pleaded, heard or urged before the expiration of the third judicial day of the term for which said jury shall have been drawn, or before entering upon the. trial of the case if it be begun sooner; otherwise, all such objections shall be considered as waived and shall not afterwards be urged or heard.”

The sequence of events in this case clearly shows that the motion was timely filed within the contemplation of this Article. The indictment was returned on May 21, 1949, the defendant was arraigned on May 25, 1949, and the case was fixed for trial on June 15, 1949. The term of court began on June 6, 1949 and on the 14th day of June, 1949, defendant was granted permission to withdraw the plea of not guilty for the purpose of filing a motion to quash the indictment, and, on the next day the motion was overruled and the case called for trial. The Grand Jury adjourned its term, after the defendant was convicted. See State v. Wilson, 204 La. 24, 27, 14 So.2d 873.

Having reached the above conclusion, it is not necessary for us to discuss any of the other bills of exception reserved during the course of the trial.

With a disclosure of circumstances in the present case similar to these in the first Pierre case, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757, namely, the exclusion (whether systematic or inadvertent) from both Grand and Petit Jury service of members of the Negro race, we are duty bound to arrive at the same decision as announced by the United States Supreme Court in its findings in the first Pierre case supra. There, we find both precedent and authority. We have no doubt that the jury selected in the instant case gave to the accused a fair trial and that the State officials were in good faith and well-intending, but our United States Supreme Court is a judicial planet whose orbit draws into its vortex the findings of all State courts involving all federal constitutional questions which must be obeyed in order to maintain the law in its majesty of final decision.

For these reasons, the conviction and sentence are annulled and set aside, the indictment is quashed and the accused is ordered discharged.


author: FOURNET, Chief Justice.

text:
    216 La. 633
    BOARD OF TRUSTEES OF COLUMBIA ROAD METHODIST EPISCOPAL CHURCH OF BOGALUSA, et al. v. RICHARDSON.
    No. 38995.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Jan. 9, 1950.

      Fred G. Benton, R. C. Cadwallader, Glehn S. Darsey, Baton Rouge, L. A. Himes, Baton Rouge, and Talley & Anthony, Bogalusa, for plaintiff-appellee.
    Richardson & Richardson, Bogalusa, and Lansing L. Mitchell, New Orleans, for defendant-appellant.
    Paul B. Habans, Louis C. Guidry, Henry Grady Price, Taylor Caffery, New Orleans, T. W. Holloman, Alexandria, Clement M. Moss, Lake Charles, 1C. A. Barnett, Ruston, John B. Smullin, Allison R. Kolb, Baton Rouge, amicus curiae.
   FOURNET, Chief Justice.

This jactitation or slander of title suit instituted by the Board of Trustees of the Columbia Road Methodist Church of Boga-lusa, Louisiana, Baton Rouge District, and two of the trustees, against William P. “Pink” Richardson, who had donated the property allegedly slandered to the church, is before us for consideration of the appeal taken by the defendant from a judgment in favor of the plaintiffs, decreeing them to be the true and lawful owners of the property and as such entitled to full and undisturbed possession thereof.

According to the record William Pinkney Richardson, on May 28, 1938, appeared before a notary public and executed an act donating to the Columbia Road Methodist Episcopal 'Church, South, of Bogalusa, Louisiana, a strip of land 60' x 160' fronting on the main street in Bogalusa, Louisiana. In this deed were contained the following stipulations:

“The said William Pinkney Richardson further declared that this donation is made for the purpose and sole consideration of erecting a Methodist Church for a place of worship and that it is hereby understood and agreed between the parties hereto, and the said donee specially obligates itself to erect a church building upon the said above described property within one year from this date, otherwise, and in this event only, this said act of donation to become null and void and of no effect without the necessity of putting in default or any action on the part of the donor whatsoever, and the said above described parcel or lot of land to revert back immediately, with full rights of possession to the donor, William Pinkney Richardson, his heirs or assigns, free from all encumbrances whatsoever.
“It is further understood and agreed by the parties hereto that this act of donation is made in trust, that said premises shall be used, kept, maintained and disposed of, as a place of divine worship for the use of the ministry and membership of the Methodist church, South, subject to the discipline, usage and ministerial appointments of said Church, as from time to time authorized and declared by the General Conference of said Church, and by the Annual Conference within whose bounds the said premises are situated.”

Subsequently, it becoming apparent that the building on this donated land could not be completed within the year stipulated in the act and that the Board of Church Extension would not lend or donate any money to assist in its completion so long as the provision remained requiring its construction within this time to prevent the reversion of the land to the donor, and upon the importuning on the part of the then pastor and the then district superintendent, as well as the members of the congregation, Richardson appeared before another notary on December 27, 1938, and executed an act amending the act of donation by expressly deleting therefrom the first above quoted paragraph.

While all of the money promised the church by the Board of Church Extension was never actually received, with such money as the board did give and as was raised by the congregation, the building, though never completed and finished, progressed to a point where it could be used for church purposes and the record does show that services were held in the building for a number of years. The war intervened, making it difficult to secure labor and materials, but the congregation continued its efforts to raise the necessary funds to finish the church and it appears that a considerable sum had been raised toward this end when the Board of Trustees of the church, without notice to the congregation, purchased another lot two blocks from the property in controversy, using the money that had been accumulated by the members who were anxious to have the church completed. It also appears that the trustees then undertook to sell the property donated by Richardson, inserting the following advertisement in a local newspaper:

“For Sale — Excellent business location, brick building, 40 x 90 ft. on lot with 60 ft. frontage on Columbia Street, and 160 feet on St. Louis Street, suitable with slight alterations for practically any business use. Property at present occupied by Columbia Road Methodist 'Church. Negotiations are to be by sealed bids only; stating price offered and proposed use of building. The right' of inspection of property and title will be granted upon request. All bids will be subject to approval by the Board of Extension of the Methodist Church, with the right reserved to reject any or all bids submitted. Address all communications to: Mr. Louis Mitchell, secretary, property committee, 729 Avenue B, Bogalusa, La.”

The defendant offered prompt objection, claiming that the sole consideration for the donation of this lot was the erection and maintenance of a church thereon and that if the committee persisted in its effort to sell the property for business purposes, the title would revert to him. As a warning to the public, he caused to be inserted in the same paper the following advertisement:

“Notice To The Public — Before you buy Columbia Road Methodist Church, see W. P. ‘Pink’ Richardson, the man who donated the ground for the church site and religious worship and get some information. Phone 193 W. W. P. ‘Pink’ Richardson.”

The Board of Trustees of the church, meeting thereafter in closed session, authorized the institution of this suit, in which they pray that the defendant be ordered to desist from slandering their title or set up title in himself. Answering, the defendant prays that an injunction issue maintaining the property as a place of divine worship, and, in the alternative, that the donation be revoked and dissolved by-reason of the, donee’s failure to fulfill the conditions of the donation.

It is the contention of the plaintiffs that when the defendant executed the instrument of December 27, 1938, amending the original donation by deleting therefrom the first above quoted paragraph, he thereby relinquished his reversionary rights and the property became vested in the church in absolute ownership, and that the second paragraph above quoted is not a charge or condition on the property, but a trust clause that was placed in the act under church regulations; that such clause is for the personal benefit and interest of the church and merely indicates the purpose for making the donation.

On the other hand, the defendant contends the donation was charged with the condition that a church be built and maintained on the premises and that he was entitled to have this status maintained, or, in the alternative, to have the deed revoked for the nonperformance of the condition.

The defendant, in making the donation of this property to the church, had the right to “impose on the donee any charges or conditions he” pleased, provided they contained “nothing contrary to law or good morals”, Article 1527 of the Revised Civil Code, and such donation was subject to revocation and dissolution by the donor on account of the “nonperformance of the conditions imposed on the donee”, Article 1559, in which case “the property shall return to the donor free from all encumbrances.” Article 1568. See, also, Voinche v. Town of Marksville, 124 La. 712, 50 So. 662, and Segura Realty Co. v. Segura Sugar Co., 145 La. 510, 82 So. 684.

As pointed out in the Voinche case [124 La. 712, 50 So. 663], “It is a principle of civil-law jurisprudence that the donee is bound to execute the charges or obligations imposed on him by the act of donation in the same manner and to the same extent as the debtor in any ordinary contract.”

We think the record unmistakably shows that the motive or consideration for Richardson’s donation of this property was, as stated in the original deed, “for the purpose and sole consideration of erecting a Methodist Church for a place of worship," and while the condition in the deed that this church had to be completed in a year under penalty of the donation .becoming ipso facto null was deleted for the reasons hereinabove stated, a mere reference to the document by which this deletion was accomplished will show that the motive for the donation and the conditions imposed upon the donee were never relinquished, but remained the sole consideration for the donation, for in that instrument is contained the following stipulation: . “ * * * it being the object and intention of this donation or correction or deed of correction to eliminate the aforesaid paragraph that was objectionable to the Board of Church Extension and the authorities of the Methodist Episcopal Church, South, and it being the desire of the said William Pinkney Richardson that thei'e be nothing in the title that mould hinder the forward movement af the church and the building of the said church.” (Italics ours.)

In fact, it is our opinion that the so-called trust clause that was placed in the deed, and which the plaintiffs claim was for the sole benefit of the church, supports this view, for in this clause it is not only specifically agreed and understood between the parties that the act of donation is made in trust, but “that said premises shall be used, kept, maintained and disposed of, as a place ,of divine worship for the use of the ministry and membership of the Methodist Church, South * * The clause qualifying this, i. e., “subject to the discipline, usage and ministerial appointments of said church, as from time to time authorized and declared by the General Conference of said Church, and by the Annual Conference within whose bounds the said premises are situated,” can only be interpreted as a guide to the ministers and membership of the church in the use of the premises as a place of worship, and does not have the effect contended for by the plaintiffs. (Italics ours.)

It is true the Discipline of the Methodist Church requires that “All deeds by which premises are hereafter acquired for use as a place of divine worship shall contain the following trust clause: In trust, that said premises shall he used, kept, and maintained as a place of divine worship of the Methodist ministry and members of The Methodist Church; subject to the Discipline, usage and ministerial appointments of said church as from time to time authorized and declared by the General Conference and by the Annual Conference within whose bounds the said premises are situated. This provision is solely for the benefit of the grantee, and the grantor reserves no right or interest in said premises.” But even if this provision could be interpreted as having the effect contended for by the plaintiffs, it could not prevail in the face of the positive principles and provisions of our civil law. Besides, it does not appear that the plaintiffs complied with the stipulation that immediately follows this clause, i. e., that “Premises so acquired may be disposed of in conformity with the provisions of the Discipline of The Methodist Church when the use of such property as a place of divine worship has been terminated,” for it was not shown that the use of the donated property as a place of worship was terminated in accordance with the procedure set out in the Discipline or that the provisions relative to its disposition were complied with. It is, moreover, interesting to note that the one preparing the deed for the donor eliminated the sentence in the so-called trust clause providing:' “This provision is solely for the benefit of the grantee, and the grantor reserves no right or interest in said premises.”

In the case of Board of Trustees of Ruston Circuit, M. E. Church, South v. Rudy, 192 La. 200, 187 So. 549, 550, the court, relying on the cases of Wilkie v. Walmsley, 173 La. 141, 136 So. 296, and Jaenke v. Taylor, 160 La. 109, 106 So. 711, observed: “It has been held that where the donor does not place such a reservation in the act of donation, the donee is granted a complete title”, and concluded that inasmuch as the act whereby Rudy donated certain property to the church did not contain such a rever-sionary clause, the title was completely vested in the church by the first deed and that the stipulation that it was “to be used for religious purposes” was merely indicative of the 'motive for making the donation. This holding is not only at variance with our civil law, as hereinabove demonstrated, but it is also not supported by the authorities relied on by the author of the opinion and we'will not, therefore, follow it.

It is our opinion that the plaintiffs are without right to dispose of tite property as contemplated in their advertisement, or for any other purpose than that stated in the act of donation. And, inasmuch as it appears the property is still being used for the purposes for which it was donated and that its use as such has not been terminated, the defendant is not entitled to have the act of donation revoked.

For the reasons assigned, the judgment of the lower court is annulled and set aside and the suit of the plaintiffs is dismissed, at their cost.


author: LE BLANC, Justice.

text:
    216 La. 645
    JENNINGS v. PREJEAN et al.
    No. 38984.
    Supreme Court of Louisiana.
    Jan. 9, 1950.

      A. V. Pavy, Opelousas, for appellant.
    Voorhies & Labbe, Lafayette, for defendants-appellees.
   LE BLANC, Justice.

This is a suit brought by Kavannaugh Jennings to recover a balance alleged to be due on an open account. The original demand was for the sum of Three Thousand, Ninety-two* ($3092.46) and 46/100 Dollars, the amount shown to be due as the balance on a statement annexed to the plaintiff’s petition. The statement is one of debits and credits from January 1, 1940, carrying a balance of Six Hundred, Ninety-seven ($697.71) and 71/100 Dollars as of that date and extending over a period through May 6, 1944, showing the amount of the balance claimed.

The defendants, a commercial partnership composed of Bernard Prejean and Ralph Prejean, filed a plea for oyer of the original bills or an itemized statement showing each article bought by them from the plaintiff, the price per pound, the weight and the amount paid for each article from January 1, 1940 to May 6, 1944, and also for a statement showing how the balance of $697.71 as of January 1, 1940, was arrived at.

Plaintiff complied with the order of Court granting the prayer for oyer bjr filing a statement purporting to show how the balance of $697.71 was reached and also five volumes of invoices showing details of all articles sold with the weight and price of each being given.

He also filed a supplemental and amended petition in which he alleged an error in his original petition with reference to a credit shown in the statement annexed thereto as of December 31, 1942. He alleges that whereas a credit of $3022.74 appears, the truth and fact of the matter is that the same was a profit and loss item or charge off listed in his books of account as of that date. He filed, with this supplemental petition, a statement showing what he claims to be the correct balance due him, which statement, he alleges, also makes adjustments for minor errors in listing invoices and including credits allowed defendants for items where invoices were not available, the whole resulting in an increase in the amount of his demand to a balance of $5575.46 from the original balance claimed of $3092.46.

The statement showing how the balance of $697.71 as of January 1, 1949 was arrived at consists of a list of debits and credits beginning April 27, 1939. The total charges amount to $7600.27 and the credits to $6902.56.

Defendant next filed an exception of vagueness in which they alleged that the documents filed in answer to their prayer for oyer failed to show what articles are alleged to have been sold at the various dates stated. Plaintiff then filed another supplemental petition in which he shows that all transactions between him and the defendants related to the purchase of live stock consisting of cattle which they bought from him in their wholesale and retail meat business and that all invoices filed represented purchases of cattle except in a few instances where they bought hogs and goats, in which the invoices so indicated.

Defendants then filed an answer in which they denied any indebtedness due by them to the plaintiff. Further answering they alleged that in addition to the payments shown as credits on the statement incorporated in plaintiff’s suit, they paid him by check, between the dates of April 1, 1941 and March 30, 1944, certain amounts listed by them and totalling the sum of $5265.11. Otherwise, in answering the supplemental petitions, they admit having dealt with the plaintiff in buying large quantities of cattle, goats and hogs from him, but deny that they are indebted to him.

At the trial of the case in the Court below, when counsel for plaintiff attempted to prove the correctness of the two statements annexed as exhibits to his original and his supplemental petitions and that these reflected all the charges made against the defendants and all the credits to which they were entitled, counsel for defendants objected to any testimony tending to prove the correctness of any items not incorporated or represented by bills and invoices furnished in answer to the prayer for oyer. The Court reserved its ruling on the objection which was ordered to be considered as a general objection to all testimony of a similar nature. Counsel, however, protected their objection at every instance it became necessary, throughout the trial.

When he came to decide the case, the district judge concluded that the objection was good and that all testimony of the nature complained of should have been excluded. In as much as under the limited proof as shown by the invoices and the admitted credits, the amount of credits was in excess of the amount plaintiff could prove by the invoices, that naturally resulted in a rejection of plaintiff’s demand.

The learned district judge nevertheless took the trouble to consider and analyze all the testimony produced in the record and was of the opinion that plaintiff had failed to support his claim with sufficient proof. He, accordingly, rendered judgment in favor of defendants and plaintiff now prosecutes this appeal.

As we have concluded that the objection to all testimony by which plaintiff sought to prove charges for items beyond- those contained in the invoices filed in compliance with the prayer for oyer was well taken, we will limit our discussion of the case to that point.

It is elementary in the rules of pleading that where an exhibit in the form of some instrument or document is attached to a petition, the recitals or contents of the exhibit govern and control the allegation of the petition itself. See American Jurisprudence, Vol. 41, page 329, par. 57, Title, Pleading. The rule is well established and recognized in this State. See Sladovich v. Glaser, 150 La. 918, 91 So. 297, 298, wherein it is tersely stated: “This instrument, being annexed to and made part of the petition, controls the allegations of the petition itself.” It is also the rule, as recognized in Louisiana, that where, in response to a prayer for oyer, a plaintiff produces and files in Court a document or documents on which his cause of action is based, the document or documents forming part of his demand, “are controlling wherever they are at variance with the allegations of the petition.” See Noble v. Plouf, 154 La. 429, 430, 97 So. 599. See also Rawleigh Co. v. Trasher, La.App., 153 So. 719, 720, in which the defendant prayed for oyer of an itemized account, the same as was prayed for by the defendants in this case, and it was held that “when it was filed, it became part of the proceedings and controlled the allegations of the petition.”

In the present case, plaintiff declared in an open account on which he claimed a certain balance was due him by the defendants. The statement he annexed to his petition began with an unidentified balance of $697.71 as of January 1, 1940. Through ten closely typewritten pages, the statement carried a list of credits and debits through May 6, 1944, on which date, the balance claimed was struck. Finding themselves without sufficient information concerning the items of debit and credit of which the account producing the balance was composed, to answer the demand made against them, the defendants filed their prayer for oyer of all the invoices covering the various transactions they had had over a long period of years with the plaintiff. This information they were clearly entitled to. See Ledoux et al. v. Goza, 2 La.Ann. 395. When, in response to the prayer for oyer, plaintiff produced the five bound volumes of invoices beginning with the one of June 8, 1939 when the transactions between them first started, these became a part of the proceedings and controlled the allegations contained in the petition. In other words, in case of a variance between the charges appearing in the invoices and those listed in the statement annexed to' plaintiff’s petition, the charges as contained in the invoices controlled.

When all the charges, according to the invoices produced, were added, they were found to total the sum of $200,458.85. In the statement of account annexed to plaintiff’s original petition, the credits listed in favor of the defendants aggregate the sum of $211,529.61. Obviously, in order to arrive at the balance claimed to be due, the charges have to be in excess of that amount and are therefore at variance with the invoices produced in answer to the demand for oyer. Under the circumstances presented, and under the rules of pleading as established, the amount as shown by the invoices controlled, and plaintiff thus became limited in the proof of his demand. His counsel seems to have conceded as much for at one stage of the proceedings when counsel for defendants was pressing his objection, he dictated the following statement for the transcript: “Counsel for plaintiff accepts the objection and only the debits in exhibit ‘A’ which are supported by the bills are introduced in evidence.”

He now contends, however, that the defense, being in the nature of a plea of payment, the burden rested on the defendants to make the necessary proof. But again plaintiff is confronted in this contention with the rule that the credits listed in the sworn statement attached to his petition constituted judicial admissions of payments by which he was bound. In the early case of Marr v. Hyde, 8 Rob. 13, the Court stated: “It is now well settled, that where a party is bound to furnish an account, his adversary may use that part of it which is against him, without being compelled to admit the items in it that are in his favor.” As correctly stated by the trial judge in the present case, “When a statement of account is presented in the form used by the plaintiff, the ‘debits’ listed thereon represent charges against defendants which the plaintiff is bound to support with competent, legal evidence; while on the other hand the 'credits’ listed on such statement of account, which represent amounts paid to the plaintiff, are judicial admissions against the plaintiff’s interest; and accordingly when the plaintiff admits a fact, such as the credits in this case, it is not necessary for the defendant to offer proof thereof.”

The case was properly disposed of by the ruling of the trial judge on the question of proof, and the judgment appealed from is accordingly affirmed at the costs of the plaintiff, appellant.


author: REGAN, Judge.

text:
    DE MONTLUZIN v. AJAX MACHINE WORKS.
    No. 19332.
    Court of Appeal of Louisiana. Orleans.
    Jan. 30, 1950.
    George W. Miller, Jr. and George E. Weigel, New Orleans, for appellant.
    Felix W. Gaudin and J. J. Grevemberg Jr., New Orleans, for appellee.
   REGAN, Judge.

Plaintiff, R. E. Edgar deMontluzin, Jr., filed suit against the defendant, Ajax Machine Works, for the sum of $215.76, alleging that this amount was due by virtue of a commission earned on the sale of an oil distributor to the 'City of New Orleans.

Defendant answered admitting that the oil distributor in question was sold to the City of New Orleans, but denying that plaintiff was entitled to a commission emanating from the said sale because, the sale to the City had not been consummated while the plaintiff was in defendant’s employ.

From a judgment in favor of defendant dismissing plaintiff’s suit as of non-suit, the plaintiff prosecutes this appeal.

The record discloses that on December 19, 1947, plaintiff and defendant entered into a written contract wherein it was agreed that the plaintiff was to receive a commission of 35.7% on the gross profits realized by the defendant from the sale of certain equipment. The contract, in all other respects, as it might logically relate to this case, is silent. Plaintiff, sometime after entering into this agreement with defendant, learned, through the City Engineer’s Office, that the City was interested in acquiring an oil distributor and, in due course and according to the prescribed law, the City advertised for bids. Defendant submitted the lowest bid as was revealed by the opening thereof on February 20, 1948. On March 12, 1948, the Commission Council of the City of New Orleans adopted an ordinance accepting the low bid of the defendant for the oil distributor and authorized the Mayor to enter into a notarial contract with defendant for the purchase of the said equipment. On March 15, 1948, the defendant, through Mr. Abaunza, one of the partners of the defendant company, advised plaintiff by office memorandum that his services were no longer required as of that date. On April 5, 1948, a notarial contract between the City of New Orleans and the defendant for the purchase of the oil distributor was executed by act passed before the City Notary. The gross profit on the sale inuring to the defendant amounted to $604.40, therefore, if plaintiff is entitled to a commission, it would amount to $215.-76, the sum sued for herein.

The only question posed by virtue of the pleadings and testimony herein is whether plaintiff had earned the commission in dispute while he was actually in the employ of the defendant. In our opinion plaintiff’s commission, in the instant case, was not limited in time to the duration of his actual employment by the defendant.

Defendant contends that plaintiff's “commission could only be earned when a formal contract was entered into for the sale of equipment and payment actually made. When these two conditions took place, deMontluzin was no longer an employee of Ajax.”

A thorough analysis of the record convinces us that it was through the medium of plaintiff’s initial idea and effort that the defendant’s bid for the sale of the oil distributor was submitted to the City, accepted by the City on March 12, 1948, and subsequently consummated through a notarial contract on April 5, 1948.

Our conception of the problem presented here by the respective litigants together with the conclusion that we have reached, obviously makes it an immaterial factor that plaintiff was discharged on March 15, 1948, which was after the acceptance of the bid by the City but prior to the actual consummation of the formal notarial contract between the City of New Orleans and the defendant.

The record reveals that the evidence' preponderates to the effect that the sale to the City of the oil distributor was, in the final anaylsis, a culmination of plaintiffs idea, initiative and effort and that he did all that was expected or anticipated with respect to effecting this sale. This was admitted by Mr. Abaunza, as reflected from the following testimony:

“Q. How did you first know about this particular bid being submitted by the City, did Mr. deMontluzin call that to your attention? A. I don’t know if he did before I read it; being in that type of business I have a habit of reading everyone of the notices that are advertised in the papers, and whether he handed me a clipping the day it came out or I noticed it I don’t know, but he probably did hand me the clipping.
“Q. But he did exert some effort in try'ing to obtain information concerning the specifications that was ultimately submitted to the City? A. None, other than suggest that we write to the Lull Equipment Company asking if they handled the distributor.
“Q. That’s about all he could do anyway, was it not? A. That’s about all.”

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that there be judgment herein in favor of the plaintiff, R. E. Edgar deMontluzin, Jr., and against the defendant, Ajax Machine Works, in the full sum of $215.76 with legal interest and for all costs.

Reversed.