text:
    No. 6930.
    Mrs. Chatenond and Husband vs. Evariste Hebert et al.
    Where a surviving' husband, who under a judgment in a partition suit, afterwards annulled, has bought certain- community property in which he had a fourth, and his children also a fourth undivided interest, subsequently by notarial act pledges to a creditor his and their share of the notes executed by him as vendee in the partition sale, secured by mortgage and vendor’s privilege on said property — tho more fact that his children of age join in the notarial act to give their consent to tho pledge of tho Jiotes, in which they claimed an interest, will not bind them for the debt thus secured, nor will it amount to their renunciation of the previous mortgage they have on their father’s interest in said property, on account of paraphernal claims of their mother.
    Where a question of estoppel, as between certain parties to a suit, lias been expressly, or by necessary implication raised, and definitively passed on, it can not again bo put at issuo.in any subsequent suit between them.
    The nullity of the principal debt annuls tho mortgage securing it.
    APPEAL from the Fifteenth Judicial District Court, parish of Assumption. Beattie, J.

      Edward N. Pagh and L. W. Folse for defendants and appellees. Armand Pitot and J. Pi. Whittington for intervénors and appellants.
   The opinion of the court was delivered by

Spencer, J.

The facts of this case are very complicated, but it is ■necessary to state them.

, Evariste Hebert in community with his wife, and Frederick Avet in community with-his wife, were joint and equal owners of a sugar plantation in the parish of Assumption. Hebert’s wife died in 1860, leaving, by her marriage with him, ten minor children, of whom Hebert qualified as natural tutor in 1861. Frederick Avet also died, leaving a widow (now Mrs. Ballu) and a number of children, of whom plaintiff is one. After the death of Mrs. Hebert and Frederick Avet, the property belonged as follows: One fourth to Evariste Hebert and one fourth to his ten children by inheritance from their mother. One fourth to the Widow Avet (Mrs. Ballu), and one fourth to the children of Frederick Avet.

On December 24, 1867, Evariste Hebert, alleging himself to be owner of one undivided half of said plantation, brought suit in the Second District Court of New Orleans against the widow and heirs of Avet, owners of the other half, for a partition of said plantation, and praying’ for a sale thereof to effect the same.

On February 4, 1870, judgment was rendered by the Second District Court decreeing the partition and ordering the sale, fixing terms, etc., and referring the parties to Selim Magner, notary, to partition the proceeds.

At the sale the plantation was bought by Evariste Hebert for $24-000, one fifth to be paid cash, and the balance in one, two, three, and four years, to bo represented by notes secured by mortgage and vendor’s lien. The sale having been completed and ten notes executed, the parties went before the notary on twenty-eighth of June, 1870. and passed an act of partition. The mass to be divided was stated by the notary as follows:

Cash......................................................$4800 00
Four notes of twelve hundred dollars each, at one year.......$4800 00
Two notes of twenty-four hundred dollars each, at two years'.. $4800 00
Two notes of twenty-four hundred dollars each, at three years .. $4800 00
Two notes of twenty-four hundred dollars each, at four years .. $4800 00
Making.................................,.....$24,000 00

Which notes were by paraph identified with the act of partition.

He then states the “debts due by the plantation and parties interested, and to be deducted from the proceeds of the sale,” as amounting (detailing the items) to $5808 77. Leaving “amount to be divided, $18,191 23; or $9095 61J to each said Mrs. Avet and Evariste Hebert.” These debts of $5808 77 were due in nearly their entirety to one S. Oambon.

It is then stated that the cash only amounting to .$4800, and the debts beiDg $5808 77, the difference, $1008 77, will have to be made up by said Hebert and Mrs. Avet; sakl Avet now paying in cash her part, $504 38J, and said Hebert paying in cash like sum. Mrs. Avet then acknowledges to have received $2400 in cash, and'five of said notes, to wit; two for $1200 each, and three for $2400 each, and accepts the same as her and her children’s share in said plantation; and then declares that the said $2400 in cash, and the said $504 38¿- are by her “ to be applied as so much toward the payment of the afore established liabilities,” being one half thereof. Hebert then declares that although it is stated in the %>roces verbal of sale that he had paid $4800 cash, he had in truth only paid $2400 (Avet’s share), and that by agreement and arrangement time was to be granted him to-.pay his.share of the said liabilities; and, in order to carry out said agreement, it is stipulated that “in order to secure the payment on the part of him, said Evariste Hebert, first, of the sum of $2400, being the balance duo cash; second, the sum of $504 381,- ” (being the excess of his half of debts over the $2400), as stated in above account, and the further sum of $468 50 due by him individually to said Cambon, all his; said Hebert’s, share of the said notes (being five in number) representing his portion in this partition, shall remain on deposit in the Citizens’ Bank, in the joint names of Armand Pitot and Selim Magner as a pledge until final payment of his said indebtedness. It is then stated that thisi pledge shall create no novation of the debt due to said Cambon for supplies, so as to destroy his privilege on the crops, etc., but that it shall remain in force to secure said Cambon his claim or any transferee thereof, up to the amount due him, the payment of which is extended to April 1,1871, by Cambon, who intervenes and becomes party to the act.

Armand Pitot as agent of certain of Hebert’s children, to wit: Emile L., Oscar E., Aubert P., Rodolph, and Louise, wife of McNeil, annexing his power of attorney, intervenes in the act; “said constituents being interested in this partition by reason of their rights in the estate of their deceased mother,” and agrees and consents, on behalf of his constituents, to the pledging of the said notes, in which they are “interested,” “in order to secure the payment on the part of him, said Evariste Hebert,” of the debts before stated.

Evariste Hebert and Mrs. Avet then declare this partition final of the said property so “ held by undivided halves between them.” The act is signed by the agents of Evariste Hebert, widow and heirs of Avet, by S. Cambon, and by Armand Pitot, agent.

On same day, June 28, 1870, Evariste Hebert executed a special mortgage on the whole plantation in favor of his children to secure them from loss they might sustain by reason of allowing the said notes to be pledged for his debts. This mortgage was accepted by Pitot, agent, by virtue of the same power. In April, 1871. Evariste Hebert entered into a contract of antichresis of this plantation with Joseph Av.et, to which some of the children of Hebert gave their consent.

The notes given by Evariste Hebert for the price, and held by Widow Avet, not being paid, she, in 1873, took executory process to foreclose the mortgage, in the district court of Assumption. This sale was enjoined by the heirs of Hebert’s deceased wife, Eulalie Labadie, on various grounds, the most important of which were that the judgment of partition in the Second District Court of Orleans, the sale thereunder, the act of partition, and the notes and mortgage given by Evariste Hebert for the price, and all other proceedings connected therewith, were null and void, because the said court was without jurisdiction ratione materice and ratione personae, and because the heirs of Eulalie Labadie, deceased wife, who were owners of one undivided fourth of said property, were not parties thereto. All those who were parties to the partition suit and to the act of partition of June 28, 1870, and all the children of Mrs. Hebert (one of the ten having in meantime died in minority) were parties to this suit. There was a final judgment in favor of plaintiffs, declaring and decreeing “ that all the proceedings taken and had in the matter ” of the said partition suit, “ commencing with the petition filed therein December 24, 1869, and up to and including the decree of homologation of partition therein rendered on July 19, 1870, be and they are hereby adjudged and decreed' to be absolutely null, and in their entirety absolute nullities, and especially the judgment rendered in said matter on January 31,1870, and signed February 4,1870, the sale made on March 26,1870, the notes given by Evariste Hebert as adjudieatee under the sale of March 26,1870, and the partition in said matter, made before Selim Magner on June 28,1870, be and the same are hereby declared, in their entirety, absolute nullities.” The judgment then declares and establishes the joint ownership of Evariste Hebert and his children for half, and the widow and heirs of Avet for half in the plantation, as though said proceedings had never been had.

The judgment then reserves and declares not adjudicated by it ■“ any questions of the rights and obligations, as between themselves, of Evariste Hebert, Widow Avet, Gambon, and any of the heirs of Mrs. Hebert, in so far as the same are consistent with the present decree, setting the said proceedings aside as absolute nullities.” This judgment has become res adjuclicata.

In 1875 Mrs. Ghatenond, one of the heirs of Frederick Avet, instituted the suit' now before the court for a partition of the plantation. Under these proceedings the plantation has been sold and bought by Widow Avet (now Mrs. Ballu) for $10,000. The contest arises as-follows: Mrs. Ballu' (Widow Avet) files a third opposition herein, claiming .to be a creditor of Evariste Hebert and the heirs of his deceased wife for a large amount; claiming to be paid by preference out of their share of the funds, proceeds of the sale; claiming to hold as transferee the rights of Gambon, and averring that Evariste Hebert and his children, are estopped by their acts and admissions in the notarial partition of June 28,1870, and of antichresis April 3,1871, from taking any part of said funds before her claims are paid. The heirs of Mrs. Hebert answer this opposition by pleading the judgment in the injunction suit as resadjudicatct; that any admissions made by them were made in error; that they are the first mortgage creditors of their father, who had received and used during the marriage $9400 of their deceased mother’s para■phernal funds; that their legal mortgage therefor had been duly preserved and its amount fixed by the account of tutorship, etc. EvaristeHebert answered to same effect, and pleaded in compensation and reconvention the sum of $2400, paid by him to Mrs. Avet, under the-partition proceeding and sale.

There is no doubt about the 'correctness of this claim of Hebert’s-children for $9400; nor that it is secured by the first mortgage on his share of the property. Nor is it worth while to discuss the question of the liability of such of those children as were not majors and parties to the act of partition of June 2S, 1870. No part of the debt due to Carnbon or to Mrs. Avet is shown to be chargeable to them- and they are in no way affected by the act of June 28, 1870, or any other of the proceedings detailed herein.

We, therefore, find it only necessary to discuss the effect of those proceedings upon the rights of Evariste Hebert and the five children represented by Pitot in said act of June 28,1870.

In that act Evariste Hebert undoubtedly acknowledges an indebtedness to Gambon of $3372 86J; being for his half of the plantation debts, etc., and $468 50 due by him individually; which sum he and Carnbon agree shall be paid by April 1, 1871. In order to secure that debt, he, with the consent of the five children (who declare themselves interested therein, in right of their deceased mother), placed the five notes, executed by himself, and falling to himself, as his share of the proceeds of sale, in the hands of Pitot and Maguer, as a pledge. Ho does not give any mortgage to secure Cambon’s debt, but pledges notes which are-secured by vendor’s lien and mortgage, and his children are declared to-have an interest in those notes.

The children in no manner bind themselves to pay Gambon; nor do-they renounce in his favor their legal mortgage on the father’s property for paraphernal claims of their mother. If they were hold to be bound by this act, and estopped from disputing the validity of their father’s title to the whole property, by reason of having asserted an ownership in the notes given for the price, we do not see how this would help Cambon’s claim as to the father’s interest in this controversy. If the purchase by Evariste Hebert is valid as against these’eonsenting children, it is only by effect of that consent, and not by effect of a judicial proceeding. If by claiming an interest in the'notes given by the father they are estopped, it is only from denying the validity of his purchase of their share in the property. They are in no way estopped from asserting their preference as mortgage creditors on the share of their father in the property. The acquisition of the father being merely conventional, and limited to the interests of his co-proprietors in the property, did not and could not change or affect his title to his own share therein, and any mortgage granted by him in this act of purchase from his co-proprietors could not supersede or take precedence of the pre-existing mortgage of his children as to that. Nor can-we infer a renunciation of this pre-existing mortgage from the fact that these children, holding also an interest in notes secured by the second mortgage, consented to their being pledged for a debt which they did not owe or assume to pay. See Newell vs. Buckner, 24 An. 185.

But as we have said, the only estoppel that could, by any construction, be pleaded against these consenting children, as resulting from the act of June 28,1870, would be that they could not dispute the validity of their father’s purchase of their interest in the property. That estoppel could, and indeed of necessity had to bo pleaded in defense of the suit brought by these children to annul the sale to their father. If no,t then urged, it ivas waived. If pleaded in that suit, it was necessarily rejected and disallowed by the judgment which declared the sale a nullity. This judgment of nullity of the sale is utterly inconsistent with the existence'of the estoppel, and must, therefore, both by its terms, and -on legal principles, be held to be a bar to the renewal of the plea in this case. It constitutes the thing adjudged, and the question of estoppel is no longer open to discussion, and does not, and indeed could not, fall within the reservations made in the judgment decreeing the nullity of the partition and sale. That judgment declared the sale to Evariste Hebert, in its entirety, null and void. Intervenor now asks in effect that it be held not null and void, but good and valid quoad, the consenting children and Evariste Hebert. To so decree would be to destroy the previous decree as to these parties; to adjudicate .upon a matter that is res adjudicata. This view renders it unnecessary for us to enter into a discussion of the questions whether these children were or ought to have been held estopped from disputing their father’s title as against themselves, and therefore whether the share of proceeds of sale now to be distributed, coming to them as oivuers, should be applied to the Cambon debt. We have seen that their share, as first mortgage creditors of their father’s portion, was in no wise affected or renounced by the act of June 28,1870. But if the question were before us we incline to think that these "children were not .bound by their declarations and admissions in said act. That whole act rested upon the validity of the decree of partition and sale. It proceeds from beginning to end upon the hypothesis of the existence of a state of facts which did not exist, to wit: that Evariste Hebert was owner of the whole property, and that he had secured these children against loss by the mortgage he gave them on the same day, June 28, 1870, upon the whole property. The fundamental fact upon which both these acts of June 28 rested did not exist. Evariste Hebert was not the owner. When the foundation was removed, when his title was annulled, the acts of Juno 28 and the reciprocal rights and obligations of the parties thereto fell with it. The notes given for the price being all in the hands of parties to the act, were stricken with nullity, for want of a cause. The mortgage securing them, being a mere accessory of the notes, perished with them. “The accessory follows the principal.” Where then is the mortgage securing the Gambon debt, or other claims of intervenor, entitling her to be paid by preference out of the proceeds of this sale ?

Evariste Hebert may be her debtor, but she has no mortgage or privilege on his share of the proceeds of the sale. We find no sufficient proof that any part of her claim so inured to the benefit of the children of Hebert as to make them personally liable for the whole or any part thereof.

The court below decreed the proceeds to be distributed in effect as follows: one half to Evariste Hebert and his children, and one half to the widow and heirs of Frederick Avet. The share of Evariste Hebert to be paid over to his children in satisfaction %>ro tanto of their legal mortgage against him, which is recognized in their favor.

We think the judgment of the court below is correct; and it is ordered and decreed that the same be affirmed with costs.


source: Caselaw Access Project

author: Manning, C. J. DeBlanc, J.

license: Public Domain

text:
    No. 7011.
    Adam Decklar vs. D. Frankenberger.
    The parish courts have exclusive jurisdiction in ordinary suits in all eases where the amount in dispute exceeds one hundred dollars, exclusive oí interest, and does not exceed five hundred dollars, exclusive of interest.
    Thus, where the principal oi the amount in dispute is exactly $.300, the parish courts have jurisdiction, even though there be enough accrued interest demanded to make the whole amount in dispute much more than $500.
    The constitution, like legislative acts, must, if possible, be construed in such a way as to render all of its provisions operative, rather than in a way that will make some of them nug,.tory.
    PPEAL from the Parish Court of West Feliciana. Laiorason, J.

      Wiclcliffe & Fisher for plaintiff and appellant.

      W. W. Leake for defendant.
   The opinion of the court was delivered by

Manning, C. J.

This suit is upon a promissory note for five hundred dollars, bearing interest from date, and payable four years thereafter. It is instituted in the parish court.

The defendant excepts to the jurisdiction on the ground that the amount in dispute exceeds five hundred dollars.

This. question has disturbed the profession ever since the courts began to interpret the constitution of 1868. The decisions that have been rendered by our immediate predecessors are, that a District court has not jurisdiction of a suit for an amount, less than five hundred dollars principal, although the accrued interest, when added to the principal, exceeded that sum. Badeaux v. Blake, 24 Annual 184. And on the other hand, that a parish court has not jurisdiction of a suit on a claim for less than five hundred dollars principal, when the accrued interest, being added to the principal, will make a sum exceeding five hundred dollars. Parker v. Shropshire, 26 Annual 37.

It results inevitably from these rulings that there is a class of cases that no court can take cognizance of under the present constitution. This case is one of them, and if we should follow implicitly the rules thus enunciated, we must turn the plaintiff away from the portals of justice, and tell him they have been barred against him by the fiat of an autocrat, whose words admit of no explanation. We conceive our duty, to be to find a forum wherein every claimant for a right shall have audience, and to ‘question and cross-question the clauses of the constitution’’ (as Cooley says) so as to discover in them a meaning consistent with the purposes for which they were framed.

District courts have original jurisdiction in all civil cases when the amount in dispute exceeds five hundred dollars, exclusive of intei'est. Const, art. 85. The note in suit is for five hundred dollars neat, exclusive of interest. Therefore it does not exceed that sum, without the interest and the District Court is without jurisdiction.

Parish courts have exclusive original jurisdiction in civil eases when the amount in dispute exceeds one hundred dollars, and does not exceed five hundred dollars, art. 87. The amount in dispute here is that sum and several years interest upon it, and therefore exceeds it. The letter of this clause of the constitution read by itself denies the jurisdiction to the parish court.

All courts shall be open, says the constitution, and every person for injury done him in his land, goods, person, or reputation shall have adequate remedy by due process of law. art. 10. The judicial power shall be vested in a Supreme Court, in district courts, in parish courts, and in justices of the peace, art. 73. There is no judicial power lodged anywhere save in tlmse courts, except in the single instance provided for in art. 94. The power to hear a suit upon such an obligation as this now before us must be in one of those courts. If it is not in the District court, and it certainly is not, it must be in the parish court, since these 'are the only two that could lay claim to it.

The jurisdiction of justices of the peace in civil causes does-not exceed one hundred dollars exclusive of interest, art. 89. Parish courts have concurrent jurisdiction with justices of the peace in cases where the amount in controversy is between twenty-five and one hundred <1:liars, exclusive of interest. The jurisdiction of the justice of 'the peace ceases when the exclusivo jurisdiction of the parish court commences, and the jurisdiction of the parish court mutt cease when the exclusive jurisdiction of the district court commences, but it can not. cease before.

The difficulty lies in the absence of the words, ‘ exclusive of interest,’ from the first clause of the second sentence of art. 87. They are used in the first sentence, in defining the concurrent jurisdiction of the parish court and of justices of the peace, and also in the last clause of the second sentence, when regulating the appealable sum from the parish to the district court. But it is imperatively necessary to supply them so as to -make the first clause of the sentence read as follows, or else there is a hiatus in the provision for j urisdietion of suits, and a denial of that ‘adequate remedy’ which the bill of rights assures to • every person for injury done him in land, goods, person, or reputation’ —“They (the parish courts) shall have exclusive original jurisdiction in ordinary suits in all cases when the amount in dispute exceeds one hundred dollars exclusive of interest, and does not exceed five hundred dollars, exclusive of interest.”

A cardinal rule of interpretation of laws is, that effect must bo given, if possible, to every part thereof. Conflicting portions must be harmonized, whenever practicable, and always that construction will be adopted which renders every one of them operative rather than that which will make some of them nugatory. This rule applies to the organic law with equal force as to the statute law. It is impossible to give effect to the rights conferred in the broadest terms by art. 10, by any other construction of art. 87 than that we have adopted.

The General Assembly passed an act defining and extending the jurisdiction of the parish courts. Acts 1876 p. 52. We consider this act merely as a legislative interpretation of the real meaning of art. 87, and we felicitate ourselves and the profession on being able, independent of any suggestion from that source, to conform our judicial interpretation to that of the legislature. Therefore

It is ordered and'decreed that the judgment of-the lower court is reversed, and the cause is remanded to be proceeded in according to law, the appellee paying costs of appeal.

Dissenting Opinion.

DeBlanc, J.

This suit was brought on a note which — in principal and interest — exceeded, at the date of the institution of said suit, the sum of five hundred dollars. It was brought in, and dismissed by the parish court of West Feliciana, for want of jurisdiction ratione materia;, and, from the decision of that tribunal, plaintiff has obtained and carried ah appeal to the Supreme Court' of the State.

His counsel contend that the parish court is the only tribunal which has jurisdiction of this case — that it derives its jurisdiction from act No. 28 of the Legislature of 1876, and that said act derives its validity from a clause of the 87th article of the constitution of 1868.

The constitutional clause thus referred to, provides: “that the parish courts shall have the power of committing magistrates, and such other jurisdiction as may be conferred on them by law” — and the act relied upon, that “ they shall have exclusive original jurisdiction, in ordinary suits, in all cases when the amount in dispute exceeds one hundred dollars, exclusive of interest, and does not exceed five hundred dollars, exclusive of interest.

Under the constitution, and as to ordinary suits, what jurisdiction is specially conferred on the parish courts ? They are — as regards such suits — invested with exclusive original jurisdiction, when the amount in dispute exceeds one hundred dollars and does not exceed five hundred dollars; subject to an appeal to the District Court, in all cases when the amount in contestation exceeds one hundred dollars, exclusive of interest.

The difference between the act of 1876 and the eighty-seventh article of the constitution, consists of the addition in the act of the words “ exclusive of interest,” after the words “ one hundred ” and “ five hundred dollars.” That difference alters the plain letter, the as plain meaning of that article, and the six words thereto added constitute a manifest violation of the article itself. In other than ordinary suits, and probate matters, the Legislature may — within the specified limits fixed by the constitution, confer on them a jurisdiction not actually prescribed by that instrument; but the Legislature could not — as it attempted to do by the act of 1876 — change, in its already fixed and determinate parts — the jurisdiction of that court.

In an ordinary suit, one of those alluded to in the eighty-seventh article of the constitution, the appeal can not ascend from the parish court to this court. The constitutional channel through which those appeals are carried to the appellate jurisdiction, leads directly to and ends in the district court. The terms embraced in that article repel any adverse or different conclusion.

If — says plaintiff — the door of the parish court be closed against me, where am I to go ? In the district court; and why ? Because at the date of the institution of this suit, the matter in dispute exceeded the sum of five hundred dollars. It is true that the constitution provides that the district courts shall have original jurisdiction in all cases where the amount in dispute exceds five hundred dollars, exclusive of interest; but to give effect to every clause of that instrument, to harmonize those of its sections which seem to conflict, to reconcile the most important of its provisions, a not unreasonable suggestion is to construe it by the light of the many decisions of this court, rendered under previous and dissimilar constitutions, but which — in 1868 — had permanently settled the question raised, in this case, as to the correct interpretation of the words “ exclusive of interest.”

How was it settled ? This court held that, howsoever composed, whether of a principal without interest, or of principal and interest, the amount due at the institution of the suit constituted the matter in dispute, and that — in computing that amount, the only interest which is not to be considered, is that interest which accrues after the institution of the suit and from judicial demand.

1 N. S. 138; 12 L. 156; 1 R. 25; 5 R. 90; 9 R. 153; 2 A. 793 — 911.

Applied, as it may be, to the eighty-fifth article of the constitution, and to the terms exclusive of interest,” inserted in that article, that interpretation would reconcile it with every other clause relating to the jurisdiction of our courts, and remove the sole obstacle encumbering the principal avenue to that jurisdiction. These words do^ — not only not exclude, but justify the construction that they refer to the interest which runs after the institution of the suit, and not to the interest which has been united to and forms part of the debt. They import that meaning and bear that construction, whilst the addition of the very same words to the eighty-seventh article of the constitution, changes its letter and changes its meaning.

The constitution provides, as to appeals from the parish court, that they shall be carried to the district court; and — under the act explaining, or rather amending the constitution, they must be carried there, even when — with the interest accrued on a principal of less than five hundred dollars — that principal far exceeds the sum of five hundred dollars. With that legislative interpretation, what becomes of that part of the seventy-fourth article of the constitution which declares that the jurisdiction thus conferred on the district court belongs to, and can be exercised by exclusively the Supreme Court of the State ? The Legislature should also have amended that article — for, it ordains in terms which convey but one, a clear signification, that the jurisdiction of this court shall extend to all cases lohere the matter in dispute shall exceed five hundred dollars. Unless we presume that the matter in dispute-can be but a principal and never a principal and interest, the conclusion is unavoidable, the clause of the constitution which fixes the jurisdiction of this court is in conflict with the amendment promulgated by the Legislature, in 1876, or that amendment in conflict with the constitution-.

At the date this suit was filed, the amount in dispute exceeded the sum of five hundred dollars, and there can be no doubt that it was a contestation which could reach our jurisdiction. If so, from what court? Is it from the parish court? That can not be; for, the constitution itself and the legislative amendment expressly provide that appeals from the parish court shall be carried to the district court. Is —as to such appeals — our jurisdiction concurrent with that of the district court ? It is not, and none but those of such suits which originate in the district court, can be re-examined in this court, and no decision rendered in such suits — unless it be the decision of a district court, can be passed upon and reviewed by us.

For these reasons, I respectfully dissent from the opinion and-decree of the majority of the court.


author: Spencer, J. DeBlanc, J.

text:
    No. 6838.
    State ex rel. Victor Boutroue vs. the Judge of the Third District Court of Orleans et al.
    This court has direct and exclusive jurisdiction of appeals in all cases whether instituted in district, or justices’ courts, where the constitutionality and legality of a tax is put at issue; irrespective of the amount in dispute. And this jurisdiction will not be ousted, or impaired because there are questions of fact in the ease, distinct from that of the constitutionality of the tax. In all cases, except criminal cases, of which this court is vested of jurisdiction, it has authority to pass on all questions of fact, or of law, involved; and the appellant from a judgment of a justice’s court, involving the constitutionality of a tax, can not defeat the jurisdiction of this court by waiving- that issue, and appealing to the Third District Court on a mere issue of fact in the case.
    In order that this court may have a record before it, in those cases where appeals from a justice’s court are allowed, it is the duty of the justice whose judgment has been appealed from, to make to this court a certified statement of all the facts of the ease, and every thing on file in tho suit.
    j^PPLIOATION for writs of prohibition and mandamus.

      Labatt & Clinton and J. Buisson for relator.

      Sam. P. Blanc and Jas. U. Grover for respondents.
   The opinion-of the court on the original hearing was delivered hy Spencer, J., and on the rehearing by DeBlanc, J.

Spencer, J.

Relator instituted suit before the Seventh Justice of the Peace for the parish of Orleans against the city of New Orleans to recover the sum of thirty dollars which he alleged the city had exacted of him, under a certain ordinance which he alleged to be unconstitional and void. The city answered denying the unconstitutionality of said ordinance, and denying' that plaintiff had ever paid the license in question. On these issues the case was tried, and there was judgment in favor of plaintiff for the amount claimed. The city thereupon took a suspensive appeal to the Third District Court. Relator appeared in the Third District Court, and moved to dismiss the appeal on the ground that the appeal from said judgment-must be taken to the Supreme Court direct from the magistrate’s court, since the question involved the legality and constitutionality of a license tax levied by said city. The judge of the Third District Court overruled the motion to dismiss, and the j ustice of the peace refuses to issue execution, or rather to afford the necessary remedy to enable plaintiff to register and budget his judgment against the city.

Relator claims that the justice of the peace is guilty of a denial of justice, and that the Third District Court has usurped a jurisdiction belonging to this court. He therefore prays for a mandamus to the former, and a prohibition to the latter. The justice of the peace makes no answer. The judge of the Third District Court shows as causo why the-writ prayed for against him should not issue, as follows:

That the plaintiff in said suit demanded the repayment of thirty dollars from the city, because, as alleged, the ordinance levying it was unconstitutional. That the city for answer, while denying the unconstitutionality of the ordinance, also denied that plaintiff ever paid the thirty dollars as alleged. That the question of payment vel non, as well as that of the constitutionality of the ordinance ■was involved, and that defendant has a right to have an appeal as to both questions. That by article eighty-two of the constitution, and laws passed thereunder, all appeals in the parish of Orleans from justices of the peace are returnable to the Third District Court, when the amount in dispute exceeds ten dollars except in cases provided by article seventy-four of the constitution. That article'seventy-four confers appellate jurisdiction on the Supreme Court when the constitutionality of any tax is in question, regardless of amount, with a view to the proper determination of questions of constitutional law, and not with a view to the revision of judgments upon mere questions of fact in cases involving less than §500.

That the defendant may waive the question of constitutional law, and appeal only for a revision of the judgment upon questions of fact. That the proceedings before justices of the peace being verbal, there was no evidence in the record in question enabling the Supreme Court to pass upon the facts, and that in effect, by appealing to the Third District Court, the defendant had waived the question of constitutionality of the ordinance, and limited itself to that of fact; to wit: paijment vel non, a question of which the judge thinks this court has no cognizancet These reasons of the judge a quo are certainly plausible, but are not, we think, maintainable under the language of article seventy-four. That article declares that the appellate jurisdiction of this court extends “to all cases in which the constitutionality or legality of any tax * * is in question, whatever be the amount thereof; and in such cases the appeal shall be direct from the court in which the case originated to the Supreme Court; and in criminal matters, on questions of law only, whenever,” etc. It is manifest that it is in criminal cases only that our jurisdiction is confined to questions of layo. In all other eases it extends to the laxo and the facts. And if this court is vested with appellate jurisdiction of the law ancl facts, in “ all cases in which the constitutionality and legality” of a tax is drawn into question, that jurisdiction is necessarily exclusive, and we think the constitution so declares it, when it provides that “the appeal shall be direct ” to this court. It is admitted that the suit in the Seventh justice’s Court did involve the constitutionality and legality of the city ordinance imposing the tax- in question.' That being the fact, there was no appeal except to this court, which alone has jurisdiction of the law and the facts.

It is therefore ordered and decreed that the preliminary writ of mandamus directed to the Seventh Justice of the Peace of the parish of Orleans, and of prohibition directed to the judge of the Third District Court of said parish, be made peremptory, and that respondents pay costs.

On Rehearing.

DeBlanc, J.

When, of our own motion, we granted a rehearing of this cause, we did so not that we had discovered any error of law or fact in our first decision, but because of the averred and acknowledged-importance of that decision to the city of New Orleans and its taxable inhabitants.

The relator brought suit against the-city, to recover from it the sum of thirty dollars, which he alleges he was compelled to pay and which he did pay, in error and without any obligation on his part, for a license to carry on his business as a retail merchant. That suit originated in and was tried and decided in favor of plaintiff by the Seventh Justice Court for the parish of Orleans. From that decision the city appealed to the Third District Court»

Has that court appellate jurisdiction of that suit, or of any branch of that suit? The seventy-fourth article of the constitution of 1868 provides, in terms which, have but one meaning and from which no inference adverse to that meaning can be drawn, that the appellate jurisdiction of the Supreme Court shall extend to all cases in which the legality and constitutionality of any tax shall be in contestation, and we have before us the indisputable evidence that the actual contestation between the city and relator does involve the legality and constitutionality of a tax.

If we have jurisdiction, is it limited — as contended by the judge of the lower court and the city’s counsel — to exclusively the questions of either the legality or constitutionality of the tax ? We believe not: under our legislation, no appeal can ascend by fractions from an inferior jurisdiction to both an intermediate and the highest jurisdiction. The constitution does not provide that we shall have jurisdiction only as to the legality or constitutionality of a disputed tax, but that our jurisdiction shall extend to such a case “ whatever may be the amount of the tax imposed — even, of course, if that amount were so insignificant as not to authorize an appeal from the justice’s court.to the Third District Court. The form and indeed every syllable of article seventy-four of the constitution repels the exceptional interpretation urged by defendants.

The party cast is entitled to but one appeal; that appeal can not be divided, and returned — as to the facts in one jurisdiction, and in another as to the law applicable to those facts. What — otherwise—might be the result? This-court, to pass upon and determine the questions of constitutionality and legality, would — of necessity — have to assume the existence of facts, which — in the other court — might be absolutely contradicted by the evidence; and then how execute the fractional j adgments hatched in two distinct jurisdictions ?

Were we to merely pronounce the illegality or unconstitutionality of a tax, without reversing the judgment already rendered to enforce its levy or payment, what would be — to any one of the litigants — the value of our decision? Were we to reverse the judgment appealed from, we might be told — under defendant’s interpretation of two clauses of the State constitution: your court has exceeded its power, for that power was exhausted as soon as the illegality or unconstitutionality of the tax was by you discovered and declared. If so, what — after that discovery and declaration — shall we do with the balance of the case ? To which court remand it ? Shall it be to the court in which it originated, or to an intermediate one which alone — it is urged — has appellate jurisdiction of the questions of facts ?

The constitution provides — it is true — that the “ Third District Court shall have exclusive jurisdiction of appeals from justices of the peace;” not including — there can be no doubt about this — those appeals which, regardless of the amount involved, are to be sent — in obedience to the seventy-fourth article of the same constitution — from the court in which the cases originated, to the Supreme Court.

The article of the Constitution of 1868 differs, in regard to the appellate jurisdiction of this court, from that of the Constitution of 1845; by •the latter, its appellate jurisdiction was limited to questions of law alone In criminal matters and in matters of fines, forfeitures and penalties imposed by municipal corporations — whilst under the former, that of 1868, its jurisdiction — except in criminal cases — extends to both the law and the facts.

Const, of 1845, art. 63 — Const, of 1868, art. 74.

There is — between the two articles cited — another, a marked, an Important difference: the constitution of 1868 provides that, in such cases, the appeal shall be direct from the court in which they originated to the Supreme Court: no such provision is to be found in the constitution of 1845, and, considering the differences which exist between the constitution referred to, the opinion delivered, in 1846, by the eminent jurist who was then the president of this court, is not applicable to this controversy ■and in no way sustains the construction placed by defendants’ counsel on the article of the constitution of 1868.

The Third District Court has not a concurrent appellate jurisdiction with this Court: if it has jurisdiction of plaintiff’s ease, or. of any of its branches, we have not: if we have, the jurisdiction of the Third District 'Court can not partly attach where ours does, and extends to every branch of the litigation. It was and still is our conviction that we alone -can hear and determine the appeal when — as plainly written in the Constitution — the matter in dispute exceeds $500, and — besides—in any a,nd every case wherein the constitutionality or legality of a tax is contested, whatever may be the amount involved in said case: otherwise, in a suit involving less than ten dollars and the constitutionality or legality ■of a tax — howsoever evident it is that the parties would be entitled to an ■appeal, every avenue to a higher jurisdiction would be effectually closed by defendant’s interpretation, as under the law the appeal could not be taken to the Third District Court, and much less to ours under said Interpretation, unless we conclude that our jurisdiction embraces and reaches only that class of cases, which can not rise to and reach that of •■the Third District Court.

■Were it conceded that — in such cases — our court alone can pass upon the question of legality and unconstitutionality of the tax — and that the decree of the justice’s court is based on the twin facts, that the tax levied was unconstitutional, and that — though not due — that tax was paid under compulsion and protest, the Third District Court could neither reverse, nor affirm the decree — for its authority would end with a decision of the facts as to the payment of the tax and the circumstances under which, it was made, and ours commence where the other ended— but, how take and carry the appeal from the district court? That could be done only by ignoring that clause of the constitution which commands that the appeal shall be direct from the court in which the case-originated, to the Supreme Court — or by trying in the district courts the facts which — according to the defence — are triable there, to afterwardsremand the case to the justice’s court, and to then carry it from that, original jurisdiction to ours. If so, the constitutional route leading to the constitutional remedy would be discouragingly long.

As the court in which this case originated is not one of record, it can not avail defendants that, in the petition filed in said court, the ordinance attacked as being unconstitutional, and the article of the constitution alleged to have been violated, are not specially described and designated. In a case like this one, the law expressly provides, that it shall be the duty of the justice — upon application of either of the parties — to make out a record containing — not merely what may be on file in the suit, but a complete statement of the facts which happened during the trial and certify the same to the Supreme Cour-t.

Rev. Statutes of 1870. Sect. 2086.

In that instance, those who represented the city in the lower court-could not have been taken by surprise — for, though plaintiff might have proceeded in the justice’s court without a written petition, he did file-one in which he indicates as the unconstitutional ordinance attacked by him, that under which the tax of thirty dollars was imposed, and we are-bound to presume that he completed — by the production of the assailed ordinance — the perhaps too vague and too general averments of his-pleading.

This, however, is a defence which could be considered, only on the trial of an appeal actually returned in this court, on an exception to-the pleading for its pretended vagueness and duplicity, and not on, it may be, an incomplete record improperly returned to a court wherein the cases brought on appeal from the justice’s court are tried de novo, in the last resort, and without a statement of facts. Besides, that defence, now urged in argument, was not made in the answer to plaintiff’s, action filed by the city in the lower court, nor in that of the district, judge to the writ of prohibition.

Defendants contend that even if plaintiff paid a license without being bound to do so, it was paid under a natural obligation to contribute to the support of the city government, and he can not recover back the amount of said license. If — through error or compulsion — plaintiff paid to the city a license which the city had no right to claim from him —if what he was thus compelled to pay was in excess of the contribution which could have been constitutionally or legally required of him„ ■the city would certainly be bound to restitute what it may have so received in violation of the constitution and laws of the State; but the •ease in which that defence was presented is not before us — and we are not called upon to decide whether plaintiff has paid and the city received the amount of the license.

It is ordered that our previous decree remain undisturbed.


author: Egan, J.

text:
    No. 6839.
    State ex rel. C. C. Hartwell vs. Allen Jumel, Auditor.
    The signature oí the judge to any final decree rendered by him, is absolutely necessary to constitute it a judgment. Mere entries of judgment on the minutes of a court, unsigned by the judge of the court, are not judgments.
    In order to recover judgment the plaintiff must prove his ease.
    APPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      T. A. Flanagan for relator.

      H. N. Ogclen, Attorney General, for respondent and appellant.
   The opinion of the court was delivered by

Egan, J.

The relator proceeded by mandamus to compel the Auditor to issue warrants in his favor for the payment of certain vouchers against the contingent expense fund of the Senate and House of Representatives of Louisiana, provided by Act 17, of 1875, approved April 5, 1875. He alleges due approval of his claims; that their payment was enjoined by the former Attorney General, Field, in a suit in the name of the State vs. Charles Clinton, then Auditor; that he intervened in said suit, and that the injunction was dissolved as to his claims; that there are sufficient funds to meet them, but that the Auditor, Jumel, refuses to warrant for their amount. The vouchers were not filed in evidence, nor is there any evidence as to their nature, consideration, or present existence, or of any demand upon the defendant; all of which were put in issue. The only evidence offered was certificates from the Auditor and Treasurer showing a sufficiency of funds to meet plaintiff’s demand, and two copies of entries upon the minutes of the late Superior District Court, showing the dissolution of injunction as to certain claims of the present plaintiff in the before mentioned suit of the State vs. Clinton, Auditor. These entries bear date September 24, 1876; are mere entries of judgments having been rendered, and not the judgments themselves signed by the judge, and come to us authenticated only by the certificates of the present custodian of the records of that court. They are not sufficient to show the existence of such a judgment, which was in its nature final, and required to be signed by the judge of the-, court which rendered it. Non constat but that there may have been some other proceedings in the cause subsequent to said entries. At all events, giving them full force, they do not dispense with the production of the formal, signed judgments in the cause, if such there were. Having before us, then, neither proof of the validity of the claim, in any shape, nor of default on the part of the defendant, the demand of the* plaintiff must fail.’

It is therefore ordered, adjudged, and decreed that the judgment of the court below be and it is avoided and reversed; that the provisional writ of mandamus be dissolved and set aside, and the peremptory mandamus prayed for be refused. It is further ordered and adjudged that-the relator pay costs of both courts.


author: DeBlanc, J.

text:
    No. 6887.
    Succession of Francois Bougère. On Opposition of Mrs. Amélie Richard.
    An administrator oí a succession who receives from his predecessor in office a certain sum oí succession money, which the former administrator had collected,, and taken his full commission from, is not entitled to commission on said sum, merely because he divides the money among those to whom it belongs. Such a. division does not amount to a new administration of tho money.
    A second administrator, whether he be a public administrator or not. is not entitled’ to a commission on any asset of tho succession, evon though he may have collected it, if the asset appeared in the inventory of, and paid a commission to-the former administrator.
    Parol ovidenee is admissible to prove tho transfer to a third pers'on of a legatee’s-, interest in a succession.
    Runds of the deceased deposited in a bank of a foreign State are a part of his succession, and should be taken into account by tho executor in distributing the-assets of the succession.
    A public administrator, as such, is not entitled to administer as dative testamentary-executor a succession of which the testamentary executor has died, and one or-more of the heirs are present in the State.
    Where a public administrator, who is one of the heirs of a succession, is appointed dative testamentary executor of tho same, it will be assumed, if the contrary is-not shown, that he was appointed, not as public administrator, but as heir, under the general law, and his commission will be fixed at two and a half percent.
    j^PPEAL from the Parish Court of St. Charles. Harper, J.

      Charles F. Claiborne and J. D. Augustin for executor and appellant.

      Breaux, Fenner & Hall for opponent and appellee.
   The opinion of the court was delivered by

DeBlanc, J.

Frangois Bougere died in the State of Louisiana. His» legal representatives reside, some here,- others in France. E. Filleul, the executor appointed by said deceased’s will died, and Aehille L>. Bougére, the public administrator of the parish of St. Charles was — in his stead — appointed as dative testamentary executor. In that capacity, he filed a tableau of proposed distribution, which was homologated on the 19th of July 1876, so far as not opposed.

Mrs. Amélie Richard, as assignee of one of the heirs of Frangois Bougére, disputes the correctness and opposes the allowance of the clauses hereafter mentioned and carried in the tableau filed by said executor.

1. The rate and amount of the commission which he charges against the succession. ,

2. McLeran’s account as surveyor.

3. A draft of E. Filleul, the former executor, in favor of Levois & Jamison.

The opponent also asks that — in the proposed distribution, funds of the succession, which are deposited in a bank in France, be taken into consideration.

I. •

In case of successive administrations, the commission to which each of the incumbents is entitled, must be reckoned on the portion of the estate which — at the date of each appointment — is, or remains to be administered.

When Aehille D. Bougére was appointed as executor, what portion of Francois’ estate was still subject to administration? He, then, caused an inventory to be made, and we are informed — by that inventory — that the remainder of the estate in Louisiana, was compose.d of abalance of funds deposited in the State National Bank, and which — with the interest thereon' — aggregated the sum of.......................$12,707 49 and of notes, including one for which the last executor is

liable, amounting, together, to......................... 12,467 46 J-
Total...........................................$25,174 95J

on which Aehille D. Bougére claims a commission of five per cent.

The money deposited in bank was collected by the first executor, and he alone was entitled to and received a commission thereon. That money passed under the control of the second executor, subject to only a division of the same between those to whom it belonged, and the mere division of funds collected by one of the executors, and on which that one has taken the whole of his commission, does not constitute an additional administration of those funds, and justify an additional compensation to his successor.

When Aehille D. Bougére was appointed dative testamentary executor of'the last will of Frangois Bougére, he was indebted unto the sue-cession of said deceased for $2062 92§, and opponent contends that he should be allowed no commission for the collection of that amount from himself. The amount then due was evidenced by a note, and the note was one of the unrealized effects which passed under the administration of the second executor. It is included in the inventory on which a commission is charged, and no further commission can be charged for its collection.

The statute of 1870 provides that “ the public administrator shall receive five per cent on all collections &c.; but this clause must be construed as applying to the collection of claims not carried in the inventory, or which — if carried — are therein classed as bad debts, and on which no commission has once been levied. "When debts so classed are subsequently collected, the executor — on such collections — is entitled to the per centage allowed by law. If otherwise, then on the day the inventory is made, the executor might commence his administration by taking a commission measured to the amount of the inventory, take on the appraised value of notes and property, and again on the proceeds realized from the recovery of the same notes, from the sale of the same property. Such a charge is authorized neither by the Code, nor by the statute of 1870.

II.

The opposition to McLeran’s account, as surveyor, though mentioned on the first page of the- appellee’s brief as one of the only four oppositions to be urged in this court, is not referred to in any other portion of said brief ; and — wore it otherwise — the disputed account is sustained by the evidence and was properly allowed.

III.

The excluded testimony of Charles E. Claiborne Esq., tending to show that Elie Bougere has no longer any interest in the funds in France — that, in 1874, he sold his interest therein to Levois & Jamison, and thus to substantiate the latter’s claim and j ustify its acknowledgment by the executor, should have been admitted. That testimony, judging from the tenor of the bill of exception taken by the executor’s counsel, was not offered to prove the existence of a debt created by either the first or the second executor, but a transfer by one of the legatees of his share of funds deposited in a bank in France. If its correctness be hereafter established by the admission of the excluded evidence, or otherwise, that claim should not be classed among the liabilities of the succession, but as a payment made to Elie Bougere and in deduction of his share.

IV.

The funds deposited in France are a part of the succession and should — by the executor — be taken into account, in the settlement of said succession: if practicable, the legatees who are in France should be paid out of exclusively the funds deposited with the French bankers, and the legatees residing in Louisiana out of the funds in this State.

As said by this court, in Hepp et al. vs. Lafon et al., executors, “ the obligations we owe to our own citizens would prevent us from sending one of them to seek in foreign tribunals for that justice which we perceive he is entitled to and we have the means of extending to him, etc.”

2 N. S. 447 ; 13th L. R. 298; 6 A. 152 ; Story on the Conflict of Laws § 513 ; 3 Pickering 128.

V.

The last questions raised by appellee’s counsel, one in his brief, the other in his pleadings, are:

1. “That this was pot a case in which the public administrator could have been appointed, in his official capacity, as executor of the last will of Frangois Bougere.”
2. “That having filed his account as dative testamentary executor, he can not now gainsay what he has so alleged for the iniquitable purpose of charging extortionate commissions.”

Under the law, the public administrator can be called upon or claim to administer intestate successions when there is no surviving husband or'wife, or heir present or represented in the State, and testate successions when — from any cause — the executor can not discharge the duties of his office.

In this case, the executor appointed by the will was dead, some of the heirs — the second executor is one of them — were and are present in the State, and the puhlic administrator could not have been — as such — legally appointed as dative testamentary executor of the will of Frangois Bougere. The only evidence in the record of his appointment is a certificate from the clerk, which is in these words: “ Now, know ye that Achille D. Bougere, public administrator of the parish of St. Charles, has been and he is hereby appointed dative testamentary executor to the said succession.”

The qualification of “ public administrator” is attached to his name, and does in no way qualify, his appointment as executor. In his application to obtain that appointment, he expressly relied on the third section of act No. 87 of the regular session of the Legislature, in 1870 — and that section — it is evident — provides for only those cases when — though living — the executor, from any'cause, can not discharge the duties of his office. The original appointment not being in the transcript, we must presume that, though Achille D. Bougere applied for the executorship in a capacity and under a law which did not entitle him to it, that executorship was conferred upon him as ah heir and under the general law. His commission was properly reduced from four to two and a half per cent. His right to defray out of the succession the necessary expenses to be incurred for the distribution of the funds which are in France, and for his settlement — in regard to these funds — with all the interested parties, is specially reserved. R. C. C. 1682.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be partly reversed and partly amended as follows, to wit;

1. It is ordered that, in the settlement of the succession of Francois Bougere, the dative testamentary executor take into consideration the funds thereto belonging and deposited in France — and, as far as practicable, that the legatees there residing be paid out of said funds— and the legatees residing in Louisiana out of the funds in this S tate.

2. It is further ordered that said executor levy, for his own benefit, a commission of two and a half per cent on all of the assets of tlie succession included and described in the inventory of the same, made by Charles Theodore Soniat, a notary public, on the 18th of April, 1876, except the funds deposited in the State National Bank.

3. -It is also ordered that, as concerns the question of costs incurred in the lower court, the rejection of the claim of Levois & Jamison and the order consequent on that rejection, commanding the executor to credit opponent with the four forty-eighth part of the funds in France, the judgment of the lower court is avoided and reversed, and in this case remanded for a new trial of only these two last mentioned branches of this controversy and as to the costs.

4. It is lastly ordered that, in all other respects, the judgment appealed from is affirmed,' and that it is so partly affirmed, amended, ■ and reversed, and a new trial granted, as between exclusively the parties to this appeal: the costs of the appeal to be paid by opponent.


author: Sebncer, J. DeBlanc, J.

text:
    No. 6819.
    William L. Cushing et al. vs. Sambola & Ducros et al.
    aotiions to annul, and enjoin judgment, as between the parties thereto, the jurisdiction of this court depends on tho amount of the judgment sought to bo annulled, and not ou the value of property seized under it, or the amount of damages claimed by the appellant. Thus if the judgment sought to be annulled is under §500, the appellant can not give jurisdiction to this court by setting up a claim of damages for more than $500.
    A PFEAL from the Fifth District Court, parish of Orleans. Bogers, J.

      R. King Cutler and A'. T. Steele for plaintiffs and appellants.

      Sambola & Bucros and II. N. Ogden for defendants and appellees.
   The opinion of the court was delivered by

Sebncer, J.

Sambola & Ducros, attorneys at law, obtained for one O’Donnell a judgment against plaintiffs, in the Fifth District Court of Orleans.

They .recorded in the mortgage office, as a privilege upon said judgment, their claim for fees, amounting to one hundred and fifty dollars.

A year or two after this recordation the plaintiffs paid the amount of the judgment in favor of O’Donnell to J. W. Gurley, another attorney of O’Donnell. Still a year or two later Sambola & Dueros took a rule on plaintiffs, as judgment debtors in the O’Donnell suit, to show cause, on seventeenth-May, 1877, why a judgment should not be rendered against them in solido for said fee of $150, because the law allowed them a privilege on the said judgment, etc. That rule was tried and made absolute by a decree of the Fifth District Court. Thereupon, Sambola and Dueros took out a writ of ft. fa. and served garnishment process on the Mechanics’ and Traders’ Insurance Company, and others. Garnishees, however, answered that they owed Cushing et al. nothing, and nothing was seized. The present suit is brought to annul, or have declared null, the judgment on said rule, and for $1000 damages caused by issuance of said writ of ¡ft. fa., particularly to William L. Cushing, who alleges that he has been “ annoyed, harassed, and vexed” thereby, and that his “ credit and standing in the mercantile community ” have been injured, and “his feelings wounded,” etc. Plaintiffs also prayed for an injunction against the writ pending the suit, which upon trial of a rule nisi the court refused to grant. Thereupon, alleging irreparable injury to an amount-exceeding- $500, plaintiffs appeal.

We are met at the threshold with the objection that this court has no jurisdiction. Wo think the objection well taken. The very basis and foundation of this whole suit is the demand in nullity of the judgment for $150. Eliminate that, and there is no suit; for if that judgment is valid and lawful, then however much plaintiffs may have been “annoyed, harassed, and vexed,” and however much their “credit” and “feelings” may have been injured, there may be loss but there is no damage. The damages claimed are the mere consequences, the incidents of the attempt to execute the judgment, and there is no other basis or cause of damage alleged. The principal demand is that of nullity.

If this court has jurisdiction in this case, one can hardly conceive of a case in which jurisdiction can not be given it. Every judgment for $100 or $200 will be enjoined on the ground that it is null and void, coupled with a claim for over $500 damages, as resulting from attempts to execute it.

The rule is well-settled that in actions to annul and enjoin judgments,- betiueen the parties thereto, the jurisdiction of this court depends upon the amount of the judgment, and not upon the value of property' seized under it.

As a corollary of this, the amount of damages alleged as resulting from the execution of such judgment is not an element of jurisdiction in this court; for the amount of damage is generally proportioned to and dependent upon the amount of property seized; and as the amount and value of the property seized can not give jurisdiction, the amount of the damages claimed as resulting from the seizure of that property can not. See 12 A. 784; 14 A. 73. Besides, the claim for damages of $1000 is manifestly fictitious. It is incredible that such heavy damages could result from an abortive attempt to seize by garnishment $150.

The appeal is dismissed at costs of appellant.

Dissenting Opinion.

DeBlanc, J.

Plaintiffs allege that, on the second of July, 1870, a judgment was rendered in favor of Charles J. O’Donnell against William Durbridge for $1091. On the seventeenth of May, 1873, said judgment was affirmed by this court, and — on the tenth of May 1875, was paid in full, including interest and costs.

Messrs. Sambola & Ducros were the attorneys of O’Donnell in the Fifth District Court and in the Supreme Court. The payment of the judgment obtained by them was made to J. W. Gurley Esquire, then acting as attorney for O’Donnell. On the third of May, 1873, defendants caused to be recorded in the mortgage office their bill of fees for services rendered to O’Donnell, and — if necessary as 'to them, this recording was a notice to the judgment debtors, the surety on the appeal bond furnished by them, and to O’Donnell, of the existence of a special privilege in favor of said attorneys on the judgment obtained by them. Rev. St. Sect. 2897.

In May 1877, Messrs. Sambola & Ducros took a rule on Durbridge — ■ O’Donnell’s debtor — and on Cushing — Durbridge’s surety on the appeal bond — to show cause why they should not ‘be condemned in solido to pay them — for their professional services — a fee of one hundred and fifty dollars. This rule was taken in the suit of O’Donnell against Durbridge, and made absolute more than two years after the judgment obtained by defendants had been paid in full. However evident the right,'was that the proper remedy? Plaintiffs, contend that it was not, and defendants that this court can not entertain the appeal for want of jurisdiction ratione material.

What appears to be the object of plaintiffs’ suit ? To have declared absolutely void the judgment for $150, obtained against them in the rule — to recover $1000 damages already suffered, to prevent an additional and irreparable injury of over $500, and to enjoin the execution of a writ of ft. fa. issued on defendants’ judgment.

Is this not but one, a principal action — an action 'for damages ? It may be examined without annulling any judgment; it may be decided without decreeing the nullity of what the defendants are attempting to execute as a judgment. The prayer that the decision sought to be executed as a regular judgment, be declared to be an absoluto nullity, is a mere surplusage: without it, the action, the only one of which we can take cognizance, would have been as oomplete as it is with it;

On the part of plaintiffs, it would have been sufficient to allege that —acting under the instructions of defendants and a writ issued from a proceeding which has but the form of a judgment, and which — as a judgment never had any legal existence — the sheriff — by his attempt to execute said writ, and defendants by their instructions to said officer, have already impaired and now threaten to destroy their credit, and that — unless restrained by an injunction, they — the said sheriff and defendants — would cause them — the said plaintiffs — an irreparable injury; and to then conclude their petition by merely praying to be allowed the damages already suffered by them, and for the maintenance of the injunction suspending the unlawful execution. They have done that and more: they have — without necessity — asked a declaration of the nullity of a proceeding, to the introduction of which, as evidence, they could have successfully objected on the trial, and which — if introduced — would have been, not decreed to be a nullity, but treated as a nullity, for the reason that, having been obtained without a previous citation, it has only the form, not the substance of a j udgment. Whatever may be the nature or the insignificance of an act about to be or already accomplished, we are to look to its effects, and if those effects do threaten to cause to any one an irreparable injury and damage which would amount to more than $500, the party who has already suffered and is again exposed to suffer from the effects of the act, may appeal to this court.

Was the proceeding by rule a proper, a legal proceeding ? On this point, we have been referred to several decisions of the courts of Kentucky, Georgia, New York and Maine, in which it was held, in substance, “that the attorney who obtains a judgment has a lien upon it for the amount of his costs, and that the payment of such a judgment, in disregard of the attorney’s claim, is equivalent to paying to the assignor, a debt which has been assigned, after notice of the assignment.”

These decisions are as just as correct; but — to enforce their claim— could defendants have legally proceeded by rule ? They could not, and for two reasons:

1. Summary proceedings being departures from the rules which govern actions generally, can not be extended beyond .the cases expressly authorized by. law, and defendants’ action is not one of those which could have been pursued by such a proceeding.

2. The right to proceed by rule or on motion implies the pendency of a suit between the parties, and is confined to incidental matters which may arise in the progress of the contestation, except in the cases expressly allowed by law.

C. P. 98 — 170—754—756. 6. R. R. 437; 3 A. 434; 12 A. 182 — 799.

In the case of Nolan vs. Taylor, this court held “ that the fees for the services of an attorney at law, although he has acted in the relation of a tutor ad, litem, under an appointment by the court, can not be recovered in a proceeding by rule, after the determination by a final judgment of the litigation in which he was employed.

12 A. 202.

Defendants’ judgment for their fees having been rendered on a rule taken in a case which — long before — had been finally decided, and rendered without citation to, appearance or answer of the parties, that judgment was and remains an absolute nullity.

Defendants invoke the settled doctrine that an injunction can not issue to stay the execution of a judgment, on grounds which might have been pleaded in defence of a suit and before judgment. This is true, but that doctrine applies to only the cases wherein there has been a defence, and can not be extended to those in which the essential formalities prescribed by law have not been complied with.

It may be, as they allege, that plaintiffs’ demand for damages is a fictitious one. That claim is supported by the affidavit required to obtain the injunction, and — until contradicted by proper evidence — the legal effect of that affidavit can not be disregarded. Had the injunction been granted and tried, and had the trial established that the action in damages is but a mask used to gain admission into this jurisdiction, we would have dismissed the appeal.

The refusal to grant the injunction leaves us in presence of the serious and as yet uncontradicted facts that plaintiffs have already been injured in the sum of one thousand dollars — that they are threatened with additional damages which, unless prevented by injunction, shall amount to more than five hundred dollars, and all this on account of an attempt, on the 'part of defendants, to execute a judgment which has no legal existence. To avert what they consider as an impending and irreparable injury, plaintiffs have tendered bond as required by law and applied for writs of injunction. Their application should have been granted.

' Were we called upon to affirm, amend or reverse the judgment obtained by defendants, to decree, instead of declaring its nullity, this court would be without jurisdiction in the matter: but this is not the case presented by the pleadings. We are called upon to decide whether plaintiffs have suffered damages in the sum of $1000, and whether— unless they be allowed the injunction applied for — they shall suffer an irreparable injury and other damages. If any part of the demand could have been dismissed by the lower court, or can be dismissed by this court, on the ground relied upon by the defendants, it could have been or can be but that branch of the demand which relates to the declaration in nullity ? Curtail the action of that branch, and there would still remain before us — ia substance and in terms — a complete action in damages, one exceeding $500.

The rule is well settled, and I adhere to it, that no appeal lies from the decree dissolving an- injunction taken to -arrest the execution of a writ, when a merely voidable judgment on which said writ issued is for less than five hundred dollars, although the value of any property seized, and the amount of damages claimed, be each more than that sum — -and this, for the very plain reason that, to relieve the property from seizure, and to determine the party’s liability for damages, this' court would be compelled, not merely to enquire into the validity of the judgment sought to be executed, but — in reality — to indirectly affirm or reverse that judgment.

The rule invoked is the invariable rule applicable to every case wherein there is a judgment, though it be one of those which may be annulled for any of the causes prescribed by law, when those who seek to appeal from the decree dissolving the injunction were parties to the suit in which the original judgment was obtained.

In the case now pending in this court, taking as true, as we must— the allegations of plaintiff’s injunction, he is not resisting the execution of any decree, but the unlawful acts of parties acting under a judicial order, which has but tlie form and none of the elements of a decree, and-the nullity of which can be urged by any interested party, in a direct action or otherwise.

Had plaintiffs’ demand been allowed and defendants condemned to pay them the amount which they claim as damages, can there be any doubt that said defendants would have been entitled to an appeal, not because of the amount specified in the judgment, but because of that specified in the pleadings? Is this an appealable case, but only so far as defendants are concerned ? I believe not — and, on that account, respectfully dissent from the opinion read.


author: Spencer, J.

text:
    No. 7006.
    Sarah F. Bradford vs. A. D. Lafargue, Collector, et al.
    The purchase by the State of property sold on account of unpaid taxes, extinguishes the debt and all liens arising from those taxes.
    Jiands belonging to the State are exempt from taxation, and hence one who purchases lands from the State takes .them free from all liens and -obligations springing from taxation.
    APPEAL from the Seventh Judicial District Court, parish of Avoyelles. Toist, J.

      Irion & Thorpe and Henry C. Miller for plaintiff and appellee.

      L. J. Ducotó and A. & W Voorhies for defendants and appellants.
   The opinion of the court was delivered by

Spencer, J.

On the twenty-ninth of October, 1873, a plantation, the property of George Wilson, was sold by the tax-collector of Avoyelles for taxes assessed against Wilson. The plantation was bid in by the collector for the State, under the act of March 14,1873. In December, 1875, the collector sold the same by authentic act to J. A. Boyer, under the first section of Act No. 105 of 1874, which provides “that the tax-collectors throughout this State are hereby authorized and required to sell and transfer by public act, passed before a notary and two witnesses, any property which shall have been purchased by the State at tax-sale to any person who shall tender and pay to said collector the amount of the State and parish taxes due on said property, with all penalties and costs.”

Boyer sold to the present plaintiff. From October, 1873, to December, 1875, the ownership of this property was vested in the State, and therefore not liable to be assessed for taxes. R. S. 3233. Notwithstanding these proceedings, the property was, during this time, continued od the rolls and assessed in the name of Wilson, the former owner.

By this transfer to the State all taxes existing on the property ar the time were extinguished by confusion, and the sale by the State to Boyer passed the property to him unincumbered by any tax-liens. The present collector finding these taxes assessed in the name of Wilson upon this property, unpaid and delinquent, proceeded to seize the plantation in plaintiffs possession to satisfy them. Plaintiff enjoins the sale, and demands that the property be decreed exempt from said thxes and that the mortgages resulting from the registry of the delinquent rolls be decreed null and void and that the recorder be directed to cancel them. There was judgment accordingly, and defendants appeal. .

There is no error in the judgment. Property of the State is exempt from taxation, and the act of 1874 above referred to authorized the sale by the collector “ to any person who shall tender and pay to said collector the amount of the State and parish taxes due on said property, with all penalties and costs.” These words can only refer, therefore, to taxes levied before the State bought. This view is strengthened by the fact that by the revenue act of 1877 it is specially provided, for the first time, that lands sold'to the State can only be redeemed by paying in addition to those named in the act of 1874 all taxes on the land for the years that the State owned it.

The judgment is affirmed with costs.


text:
    No. 6844.
    The State vs. John G. Briscoe.
    The mere fact that the prosecuting attorney in a trial for murder, read to tho jury a definition of malice, from a manuscript ho refused to allow the attorney for tho accused to see, will not authorize a verdict to be set aside, when the accused does not allege that the said definition of malice was incorrect, and when it appears that the judge instructed tho jury not to regard what was thus read from the manuscript.-
    When it is shown that a wound which might bo fatal has been inflicted by the accused with a murderous intent, then the burden of proof is on him to show that the death of- the deceased resulted from malpractice, or culpable neglect of tho attending surgeon, or from some other cause other than that of tho wound.
    APPEAL from the Fifth Judicial District Court, parish of East Feliciana. Me Vea, J. Jury trial.

      H. N. Ogden, Attorney General, for the State.

      W. F. Kernan and T. J. Kernan for defendant.
   The opinion of the court was delivered by

Egan, J.

The accused was indicted for murder, found guilty of manslaughter, and sentenced to ten years imprisonment at hard labor in the Penitentiary. The case conies before us upon an assignment of errors upon grounds presented in two bills of exception taken on the trial. The first is to the reading on the trial by the counsel for the State from manuscript what purported to be a definition of malice by Judge Story, “to which counsel for the accused objected and asked the court to instruct the jury not to consider said manuscript authority. The court so instructed the jury, but the counsel for the accused objected that this proceeding was wholly irregular; yet the court ruled that, having instructed the jury they were not to consider said manuscript opinion unless the authority was shown to the counsel for the accused, which was not done, he excepted.”

It was certainly very improper for the attorney for the State to withhold from the counsel for the accused any authority he might refer to or use in the argument or on the trial of the cause, and we should without hesitation set aside the verdict and sentence and remand the cause if it were even stated in the bill that the definition of malice so read to the jury was incorrect, as however it does not; while it does appear from the bill that the judge complied with the request of counsel, and instructed the jury not to consider the manuscript authority; and it does not appear that he asked that the trial be suspended and the jury discharged, or that any thing else be done which ought to have been and was not done. We can not, therefore, sustain this ground of error. In overruling it, however, we must remark that the State wishes no unfair advantage taken, even in the smallest matter, of any one prosecuted for crime in her courts. The remedy in such matters as that here complained of is in the hands of the district judge, and should be promptly applied. We do not understand this to be a case of the mere reference to a memorandum of counsel as to an authority not produced. Nor do we wish to be understood as expressing the opinion that an attorney is required to produce and read every authority upon which he relies in argument; to do so would be a great abuse of the patience of intelligent courts.

The second ground of error assigned is, that the judge charged the jury “'that if death ensues from a wound given in malice but which being neglected or mismanaged the party died, this will not excuse the prisoner who gave it, but he will be held guilty of murder unless he can make it clearly and certainly appear that the maltreatment of the wound or the medicine administered to the patient, or his own misconduct, and not the wound itself, which was the sole cause of his death.”

The judge says the above is only a part of the charge given by the court and extracted from the decision of Justice Spofford in State vs. Scott, 12 A. 274, and that the court quoted in his charge all that portion of the decision found on page 275, which reads as follows:

“ It is sometimes impossible to procure skillful surgical aid. If a person dies from a wound inflicted with murderous intent, whose life might have been saved by the skill of a surgeon, whom it was impossible to procure, the crime is none the less murder. The true point is, did the party die of the wounds inflicted by the accused ? If he did, the facts that he had no surgeon or an unskillful one, or a nurse whose ill-appliances may have aggravated the original hurt, can not mitigate the crime of the person whose malice caused the death. To do that it must plainly appear that the death was caused not by the wound but only by misconduct, malpractice, or ill-treatment on the part of other persons than the accused.” In support of this view the opinion then cites 1 Hale’s P. G. * 428; Wharton’s Law of Homicide, 241; 1 Russel, 505; and Greenleaf’s Evidence, vol. 3, sec. 139, which is in almost the exact language of the charge complained of, with the addition “for if the wound had not been given the party had not died. So if the deceased were ill of a disease apparently mortal, and his death was hastened by injuries maliciously inflicted by the prisoner, this proof will support an indictment against him for murder; for an offender shall not apportion his own wrong.” We understand the court to mean that when a wound from which death might ensue has been inflicted with murderous intent, and has been followed by death, the burden of proof is upon the party inflicting the wound to make it appear to the satisfaction of the jury that the death resulted not from the wound but from some other cause, such as malpractice, want of skill, misconduct, or culpable neglect, without which death would not have resulted. In other words, that the State having first shown the existence, through the act of the accused, of a sufficient cause of death, followed by death, the death is presumed to have resulted from the injury or wound inflicted, unless the accused can rebut that presumption by showing that the death was reasonably attributable to another cause and not to this wound so inflicted by him.

It is difficult, indeed impossible, to lay down a general principle on this subject which shall be equally applicable to the facts of each case, varying as they are. Hence much discretion is necessarily left to the judge before whom the case is tried in expounding those principles of law which will enable the jury to arrive at a correct verdict. Those facts are not before us, and with them we have nothing to do. It is not therefore our province to determine whether the law given in charge by the court below was applicable to the facts proved in the particular case. We can only determine whether what the judge does charge is good law. Eor this purpose it must be remembered that from the very nature of the duties assigned to him the district judge must necessarily consider the facts proved in his hearing in order that he may give an appropriate charge. It is not correct then to say that he has nothing to do with the facts -because he is restrained from charging upon them. Neither is it true to say that because the judge charged that “ if death ensued from a wound given in malice,” as stated in the bill of exceptions, it results that he in effect charges either that a wound has been inflicted by the accused or that it was given in malice, any more than it can be said that he assumes the existence in the particular case of sufficient proof of any other state of facts pertinent to the crime charged, because he finds it proper in his judgment and in the- exercise of the discretion and function assigned him to charge the law applicable to. them if proven. The charge given in the present case was certainly a^igorous one, but it seems to be supported by eminent authority, and it'is not for us to say that it ought not to have been given under the facts of this particular case. Nor does it appear that the charge complained of stood alone; on the contrary, it was qualified by the other language quoted from the Twelfth Annual case, and that part of it in relation to giving a wound, in malice does not seem to have affected the verdict of the jury unfavorably to the accused, as notwithstanding the charge they brought in a verdict for manslaughter only. While the enunciation of the law embodied in the charge complained of is certainly a very strong one, and goes to the extreme limit of the law in this country, it is too well supported by authority to be pronounced error, when qualified, as it was in the case at bar, by other portions of the charge given. Neither- do we consider it as thus qualified as militating against the general doctrine of the presumption of innocence and of reasonable doubt in favor of the accused, and still less of that in relation to the presumption of malice from an act deliberately committed with a deadly weapon, and of the intent to be drawn from all the evidence in the case as laid down fn the standard modern authors and in the current decisions of other States to which we have been copiously referred in the able argument of the counsel for the accused.

It is therefore ordered that the verdict and sentence appealed from be affirmed.