text:
    No. 2541.
    B. O. Mesritz et al. v. H. Marks et al.
    An appeal will not: lie from an interlocutory judgment on a rule to dissolve an attachment, unless it is shown that such a judgment would worlr an irreparable injury.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      Gooley cD Phillips, for plaintiffs and appellees. Pace, Foster & F, T. Merrick, for defendants and appellants.
   Howe, J.

The motion to dismiss in this case must prevail. The appeal was taken from .a judgment dismissing a rule to dissolve an attachment. The judgment is interlocutory, and does not work an irreparable injury.

It is therefore ordered that the appeal herein be dismissed, with costs.


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 2104.
    William G. Prescott, Admr., v. Elizabeth Gordon and W. S. Bates.
    *Tke surviving widow ill community is not allowed to retain in lior bands tlie amount of her bid on the common property, at the succession sale of her deceased husband, until a final partition, oven where there are no debts to pay.
    .Articles 1265 and 2603 ot the Civil Code, which give to the heirs the right to retiin the amount of their bids until a final partition, does not give to the surviving widow that right, at the sale of the community property. In this respect she stands in no better position than that of any other purchaser.
    from Sixth District Court, parish of St. Helena. Bilis, J.

      Wilson & Bradley, for plaintiff and appellant. T. & J. Bilis, for defendants and appellees.
   Ludeling, C. J.

W. E. Gordon died intestate, leavingan estate to he divided between his widow and collateral heirs.

On the thirteenth and fourteenth of December, 1861, the personal effects belonging to the community were sold, and the widow purchased at the sale, to a largo amount. For the price of the property bought by her she gave her two notes, amounting to $3,456 68. In 1862, at the instance of the widow, a partition of all the community I>roperty was made in kind, except the proceeds of the sale of the personal effects of the succession, amounting to upwards of $8,000. The administrator instituted this suit for the recovery of the said two notes, •and two other small notes. Prescription was plead against the two small notes, and was properly sustained. As to the notes executed by the defendant for the price of her purchase at the succession sale, there was a judgment of nonsuit, and the plaintiff has appealed.

The defendant contends that “parties in interest at a sale of succession property may purchase to the amount of their portion, and are not obliged to pay until there has been a definitive partition or liquidation, unless the succession be insolvent,” etc. This pretension is based upon articles 1265 and 2603 of the Civil Code. These articles establish an exception to the general rule, which is, that purchasers at succession sales must pay the price of their purchase, and are not permitted to settle it by compensation with claims which they may happen •to hold against the succession. 3 An. 150; 10 An. 47; 18 An. 268.

These articles must then be construed strictly, and can not be extended beyond their terms by analogy. Both articles speak of heirs •only, and courts are not at liberty to extend the exception to other persons. 4 R. 37; 2 An. 412.

The defendants’ counsel rely upon the case of Dorin v. Wiltz (11 An. 517) to sustain the right of the widow in community to retain the price of her purchase. That was an action for a partition of property in which the rights of the parties were to be settled definitively. The -question raised in this case was not at issue in that case; and what is relied on by counsel as authority, even if it sustained their views, was obiter dictum. The court said in that case: “It is urged that the affirmance of tlie judgment will prejudice the appellant, by compelling her, .in the event of becoming the purchaser of the property, to deposit the purchase money into court. Wo do not understand that such will be the effect of the judgment. Either party, in becoming the purchaser of the property, will have the right to retain in his oilier hands the portion of the price coming to him or her, the defendant to retain first the amount awarded in her favor as a creditor of the community by this judgment.”

It was the duty of the administrator to collect the notes, and there should have been judgment against the defendant for the amount of the two notes given by her at the succession sale.

It is therefore ordered and adjudged that the judgment of the district court be avoided and reversed, and that there be judgment in favor of the plaintiff against the defendants in solido, for the sum of $2,691 16, with eight per cent, per annum interest from the fourteenth day of December, 1862, and for the sum of $767 52, with eight peícent. per annum interest thereon from the thirteenth day of December, 1862, and costs in both courts. It is further ordered that the plaintiff’s demand for the notes for $7 60 and $18 91 be rejected.

Rehearing refused.


text:
    No. 1722.
    Michael Dalton v. Mrs. Widow E. Viosca and Gustave Weber.
    A paity plaintiff in a rule/byalloging that a third party is an attaching creditor, and makes such party a deJendant in the rule, is estopped from donjiLg that he is a creditor; and such attaching creditor has the right to appeal irom the judgment on the rule.
    APPEAL from Sixth District Court, parish of Orleans. Divplantier, J.

      George L. Bright, for attaching creditor, appellant. Buehanan & Gilmore, for defendant and appellee. Poselms <fi Philips, for plaintiff Dalton, appellee.
   Ludeling, C. J.

On the twenty-third of January, 1863, judgment was rendered against E. Yiosca and G. Weber for $800, with interest and costs. On the sixteenth of December, 1867, Mrs. E. Yiosca took a rule on William Hartingau, tutor of the minor heir of Michael Dalton, and on Alfred Kearney, attaching creditor of Michael Dalton, to showcauso why, on Mrs. Yiosca depositing one half of said judgment in the hands of the sheriff, satisfaction of judgment shall not he entered in her favor. The proceeding is novel, and, we think, unauthorized by law. It is an attempt to have one judge interpret or construe a final judgment rendered by bis predecessor. But as no objection has been urged to the manner of proceeding, wo will pass upon the questions raised.

It is contended that as the creditor alone appealed, the judgment of the district court is final between the plaintiff in the rule and Dalton’s heir, who owns the judgment, and therefore the creditor (if a creditor) can.not maintain this appeal, aud recover more from Mrs. Viosca than she-owes to the succession.

• The plaintiff in the rule having alleged that Kearney was an attaching creditor (as having attached the judgment iu question) is estopped-from denying that he is a creditor. Besides, he is made a. party to the rule. We think Kearney has a right to maintain his-appeal.

An examination of the judgment against Mrs. Viosca and Weber, and the pleadings in the suit, leaves no room to doubt that the-judgment is against each debtor for the whole amount. 3 La. 282; 14 An. 831.

It is therefore ordered and adjudged that the judgment of the district court, in so far as it affects the appellant be avoided and reversed, and that the rule be dismissed, with costs iu both courts.


author: Howe, J.

text:
    No. 2592.
    Modeste Bernard, Admr., v. Timothe Ledet et al.
    Modeste Bernard, administrator, brought suit in his official capacity, on a promissory note ductile estate he represented. The note contained the following clause: “ with the privilege of postponing the payrüent three years after the death of the said Mrs. Bernard.” The defendant opposed the pie a of prescription. Held — That the clause authorizing the postponement, of payment did not operate) a suspension or interruption of prescription.
    APPEAL from the District Court, parish of Lafourche. Train, J-

      Taylor Beattie, for plaintiff and appellant. Knolñoch & Attain, for defendants and appellees.
   Howe, J.

The note on which this suit was brought is in the following words:

Parish oe Lafourche, February 4,1856.

Three years after date I promise to pay to the order of Widow Jean Baptiste Bernard the sum of eleven thousand eight hundred dollars,, value received, with eight per cent, per annum interest, payable annually, with the privilege of postponing the payment three years after the death of the said Mrs. Bernard.”

“ TIMOTHE LEDET.”

The last payment of interest was made April 3, 1859. Mrs. J. B-Bernard died in 1868. The suit was instituted August 20, 1869.

The plea of prescription of five years should have been maintained-The note fell due February 7, 1859; prescription was interrupted April 3, 1859, by the payment of interest, and was fully acquired in April, 1864.

The theory of plaintiff that the note was not due till three years after the death of Mrs. J. B. Bernard, cannot bo adopted. We may remark that, if it were true, the note would not yet be due, for the three: years of possible postponement will not expire till 1871.

The evidence does not establish a renunciation of this acquired prescription.

It is therefore ordered that the judgment appealed from be avoided aud reversed and tho suit dismissed, the plaintiff paying costs in both courts.

Rehearing refused.


author: Howell, J.

text:
    No. 2719.
    In the Matter of the Minors M. M., William P., and Courtland Smith—John W. Smith, Tutor.
    The omission to name a creditor in tho citation cf appeal from a judgment homologaticg a tutor’s account will not vitiate the appeal.
    If a judgment homologating the tutor’s account, shows an indebtedness in favor of the minors with moitgage for §11,000 00, a third party has a right to appeal therefrom, if ho has a judgmont against the tutor with m irtgage lor over Ove huudred dollars. The parish court i3 competent to grant an order o«. appeal from a judgmont homo ogating a tutor’s account, although a similiv judgment may have been tendered by the clerk of the district court, under the act cf 1855, before tho organization of the parish court. In such a case both judgments must bo embodied in the record of appeal, and the parish jrdgo is the only competent authority to grant the «. rdcr.
    An acknowledgment by the husband in the form of a receipt, that he received from the wife tho amount of paraphernal funds therein expressed, is conclusive between tbo husband and wife or their heirs, and is prima facie proof as to al other parties. Such evidence will autnorize a judgment in favor of the heirs in a suit against their iather m his capacity of tutor.
    The mortgage of the minor on the property of his tutor to secure the faithful administration oí his estate, and to cover the indebtedness contracted by the tutor to the minor on account of the community and separate property of the minor, which he has acquired by purchase, attaches from and after the date of the .ippointment and qualification of the tutor.
    A third party in an opposition to tho homologation of a tutor’s account can not be heard to contest the validity of an adjudication which occurred prior to the existence of his debt.
    A tutor owes five per cent, per annum on the funds from the date of receipt, and when the accounts are liquidated, livo x^er cent, on tho aggregate amount from tho day ihc. accounts are closed*
    If the tutor charge himself with the revenues cf the minor, he is entitled to credit for the expenses of the minor to the extent of the revenues.
    A third party, a mortgage creditor, can only have the judgment of the court below corrected on appeal, in so far as it appears upon the face of the record to grant a mortgage prejudicial to his mortgage, ifo amendment or change of the judgment can be made between appellees.
    from tho Parish Court of West Feliciana. 'Riley, Parish Judge.

      Oollins <& Realce, for appellees. Winter & Butter, for appellants.
   Howell, J.

A motion is made to dismiss this appeal on the following grounds:

First — All parties interested in maintaining the judgment appealed from have not been legally cited; service on a curator ad hoe was unauthorized.

Tlie appeal is taken by W. S. Peterkin, a third person, from a judgment homologating the tutor’s account. One item of said account is for 11 expense of children seventeen years, at $50, $2550.” Nothing-shows to whom said expenses were paid, and a curator ad hoc was appointed to represent parties as unknown. Every one whose name appears in the account is cited, including the tutor and undertutor. The omission to name a creditor in the above item can not destroy the right to appeal; but the account and record justify the inference that the item is an allowance to the natural tutor, and the appointment of a curator ad hoc may be viewed as made in abundance of caution.

Second — There is no evidence in the record or before this court showing the interest of Peterkin to be over five hundred dollars, hence the court is without jurisdiction.

The judgment appealed from allows the minors over $11,000, with mortgage. Peterkin files with his petition for appeal, a judgment for over $6000, with mortgage, against the father, who is tutor, and alleges that he is aggrieved by the judgment in favor of the minors against the said tutor. There is certainly an appealable interest shown here sufficient to confer jurisdiction on this court.

Third — The parish judge was without authority to grant an appeal from a judgment of homologation, rendered by the clerk of the district court under the act of 1855.

Judgment of homologation was first rendered by the clerk of the district court, and after the record was transferred to the parish court, another judgment, upon the same demand by the same parties, was granted. It was thus made necessary by the appellees, doubtless, or a part of them, for the appellant to bring up both judgments, if there was a necessity for the two below, and we are at a loss to know by what judge or court the appeal could be granted,-if not by the court having jurisdiction of the cause and record.

The motion is therefore overruled.

On the Merits.

The appellant assigns for errors in the judgment, the following:

First — There is no proof, such as is required by law, to establish the-claim of $4000, paraphernal property of Mrs. R. G-. Smith, alleged to have been received by John W. Smith, tutor, and credited to Ms minor children in the account complained of.

The only proof in support of this item is the following entry in the-inventory of Mrs. Smith’s estate, made on the twenty-fifth of September, 1851:

“ John W. Smith acknowledges to have received the sum of four thousand dollars, separate paraphernal funds of his said deceased wife, Rebecca G. Graves — $4000.”

Appellant contends that “acknowledgments of the receipt of money by the husband from the wife, are not evidence against third persons, and a judgment rendered on them can have no more effect than the-acknowledgments themselves;” and he cites 7 N. S. 461; 10 An. 784,. and 11 An. 265.

This proposition is good in law, and supported by the authorities quoted. But it is applied in those and other similar cases to evidence-adduced contradictorily with third persons, or where the husband or wife was called on to administer proof contradictorily with them, but not in a case like this, where the proof adduced was.between the parties or their heirs, and the question is, was it sufficient to sustain the judgment rendered? As between them, slight proof is sufficient. See T N. S. 461, above cited. The acknowledgment was made at a time not suspicious, is full proof between the parties, and must be held prima facie proof as to all, until in some regular proceeding, and under proper allegations, higher proof is demanded. On appeal, the only question in such a case as this is, does the evidence authorize the judgment?. We think it does, although it may not be conclusive, if the judgment should be regularly attacked.

Second — If said indebtedness ever existed, it was not due by the said John W. Smith, as tutor of said minors, and hence the minors’ mortgage does not attach.

The record shows that John W. Smith opened the succession of his-deceased wife in 1851; caused an inventory to be made of her separate property and that of the community; that he caused the latter to be adjudicated to him, and was appointed tutor to the minors. As tutor he became possessed of all the property and rights shown by the record to have been inherited by the minors, and their mortgage attached from the date of his appointment as tutor. The price of the property adjudicated was specially secured by mortgage. This case differs from that of Woolfolk v. Woolfolk, 20 An. 513, in this, that Smith never-administered in any other capacity than as tutor, while Mrs. Woolfolk administered only as executrix.

Third — Of the item of $3975, credited as half the price of the community property adjudicated to the tutor, the sum of $2850 consists of the price of slaves, and no liability therefor exists.

The judgment of adjudication by which this action is supported, having been rendered long prior to the origin of appellant’s debt, he can not inquire into the validity thereof, and wo will not go behind it to see the cause or consideration on which it is based. We are not called on to enforce a contract for the sale of persons, but only to ascertain if there be errors to the prejudice of the appellant, a third person, in a judgment homologating a tutor’s account.

Fourth — The item of $6778 75, as interest, is not due. First— because the indebtedness had no existence; and second — -If existent, the tutor is not bound for interest on the same.

A tutor must pay five per cent, on the funds, from their receipt; and when his accounts are liquidated, five per cent, on the aggregate amount from the day the accounts are closed. C. C. 353; 5 An. 565; 14 An. 764. This rule was pursued in this ease.

Fifth — The item of $50 per annum each for expense of children is entirely inadequate; their revenues, if any ever existed, were entirely consumed by the expenses of their maintenance and education.

The grounds of this alleged error seem to neutralize each other. It appears to us that, if the tutor charges himself with the revenues, which in this case are interest, he should be allowed credit for the expense of the minors to the extent of said revenues. ■ He has not gone to this extent, but we have no means of saying that he should have done so, or that the sum allowed was inadequate to their support.

The sixth and seventh grounds of error consist of charges of fraud and collusion, said to be apparent from the failure to file an account at or since the time of Mrs. Smith’s death, showing the condition of the community; the omission to mention debts due by the community at the time of its dissolution, and from the whole account, which, on its face, is an attempt to give the children an unjust preference upon the tutor’s property, to the exclusion of appellant and other creditors.

As this is not a proceeding to annul a judgment, all that the appellant can demand or effect by his appeal is the correction of tlie judgment, in so far as it appears upon the face of the record to grant a mortgage prejudicial to his mortgage. We can not change the judgment as between the tutor and the minors, who are all appellants ; and we have already seen that the items of the account complained of are supported by at least prima facie evidence, and the mortgage recognized in favor of the minors is a legal sequence. The tutor could not give a conventional mortgage which would impair or affect the minor’s mortgage securing the amount of his indebtedness to them. And it may be remarked that the majority of one or two of the children made the rendering of an account proper, if not necessary.

We find no sufficient reason for changing the judgment appealed from, in behalf of the appellant, who is a third person to the proceeding in which it was rendered

Judgment affirmed.


text:
    No. 1884.
    Henry Lusse v. Mische & Co.
    Ttoiero tlie appellant fails to prosecute liis appeal, and tlie record discloses no grounds for tlie appeal, damages an ill be awarded tlie appellee for frivolous appeal.
    APPEAL from Fourth District Court, parish of Orleans. Théard, J.

      J. Ad. JRogier, for plaintiff and appellee. J. M. Dirhammer, for defendants and appellants.
   Ludeling, C. J.

This is an appeal from a judgment on a promissory note in favor of the plaintiff.

The appellant has not filed any brief in this case, nor has he called our attention to any error in the judgment, and we have been unable to see any.

The appellee has asked for damages for a frivolous appeal, and we think they should be awarded.

It is therefore ordered and adjudged that the judgment of the district court be affirmed, with one hundred and fifty dollars damages for a frivolous appeal, and costs of this appeal.


author: Taliaferro, J.

text:
    No. 1379.
    A. T. B. Merritt v. Ami Merle et al.—A. T. B. Merritt v. Eugenie Merle et al.
    Where the evidence shows that a purchaser of rsal estate lias at the time, and before the purchase, lull knowledge of a suit brought by the United. States for a large portion oí the land purchased, he can not set up in defense to the payment of the pnce' that he is in t auger of eviction by such suit, and obtain immunity from the enforcement of ilxo contract, * ntü fcne suit is decided. The knowledge of tlie existence - f such a suit before the ■■ purchase forms an exception to the rule laid down in article 2535 of the Civil Code.
    •An intervenor, who has purchased the land from the vendee and claims to detend the’title of his ve dor, can not uige the ex;stence of such a suit against the demand of the original vendor iortne payment of the price.
    'Ih.3 prescription of five years does not apply to an obligation to pay money contained and ex ressei in the act of sale. In such a case the prescription of ten years is applicable. C. C. 35 S; 3 An. 46; 13 An. 294.
    -Obligations given for the purchase of land and slaves can only be enforced against the land in proportion to the value oí each at the date of the purchase: and where judgment has been reuuered in the court below for the whole am) unc, the cause will be remanded for the purpose of ascertaining, by evidence, the value of each at the lime.
    PPEAL from the Second Judicial District, parish of St. Bernard. Oazabat, J..

      G. Lufour, for appellants. G. LeGardew and JH. A. Lucros, for appellees.
   Taliaferro, J.

This is an appeal taken from a judgment rendered by the district court in each of the above cases, dissolving, with damages, the injunctions therein taken out hy the plaintiff.

In June, 1847, A. H. Phillippon and J. Ami Merle, the latter as the natural tutor of his minor children, Ami, Eugenie, Oscar and Corinne, and as executor of Alfred Phillippon, sold to James McMasters an ■extensive body of land, embracing a large plantation, and sixty-three slaves. It was agreed that the portion of the price which accrued to the minors should be severally paid to them as they respectively attained the age of majority. This large property was sold in March, 1856, by McMasters to R. A. Stewart, who assumed the payment of the installments to the minors at the periods stipulated by McMasters. In September, 1859, Stewart sold the property to Merritt, who bound himself personally to pay the minors, at a time then fixed hy an extension •of the period of payment, as settled hy the contract with McMasters. But, before this extension of time in favor of Merritt, two of the minors, Ami and Oscar, had become of age, and they took out executory process to enforce payment of thoir shares of the purchase price of the property. This took place in April, 1858. Stewart enjoined the seizure, and the suit was undetermined at the time of the sale to Merritt. All further proceedings in the matter seem to -have been suspended by the war. In May, 1865, a motion was made in court by the defendants in injunction to have it set aside. On the fifteenth of June, before any action was taken on this motion,-Merritt intervened in. the injunction suit, alleging that. “ ho had purchased the .land in controversy from Stewart; that he is now the owner and in possession of the property. He, there!oré, prays to intervene and defend the title and claim of said Stewart, and tlie proceedings now pending herein.”

The injunction was dissolved and an alias writ issued in January, 1866. This, Merritt enjoined, as he, also, did an order of seizure and sale taken out in May following by the other two heirs. The ground taken by Stewart in the injunction sued out by him was, that a suit had been instituted by the United States for about five thousand aeres of the land bought by McMasters, and subsequently sold to him by McMasters, and that ho was in danger of eviction. Merritt set up the same ground in the injunction taken by him against the alias writ of seizure and sale issued at the instance of Ami and Oscar Merle, and, in addition, that Knapp, under a sale to him from the State, of a portion of the land embraced in the sale to McMasters, was cutting and removing wood from the land, and causing great damage to the petitioner. The same grounds were taken"in the injunction against the order of seizure and sale obtained by Eugenie and Corinnc Merle ; except, in the latter case, he set up the plea of prescription. Knapp, it appears from an injunction taken by him against Merritt, to restrain him from interfering with his operations in cutting and removing timber from a portion of the land, set out in his petition that lie had purchased from the State two thousand two hundred and forty-six acres of the land in question, and that ho had been in peaceable possession of the same from October. 1864.

The suit alleged by Merritt to have been instituted by the United States, for a largo part of the land included in the sale to McMasters, was commenced in the United States Circuit Court on the twentieth of November, 1851, and was finally decided against the United States by the court in the last resort, in December, 1866. See Wallace Report, vol. 4, p. 680.

It is shown that at and before the time of the purchase of Stewart from McMasters, Stewart was fully aware of the suit then pending by the United States claiming a portion of the lands included in the purchase he was about to make. The Phillipon grant, the landed estate convoyed by these sales, contains about twelve thousand arpents, extending from its front on the Mississippi river to Lake Borgne.

The United States claimed in the suit referred to about five thousand arpents of this large survey and which, as we infer, covered the lands claimed by Knapp under title derived from the State of Louisiana. Stewart purchasing with knowledge of the existence of this suit, could not avail himself of the provisions of article 2535 of the Civil Code. That article reads: “If the buyer is disquieted in his possession or has just reason to fear that he shall be disquieted by an action of mortgage, or by any other claim, he may suspend the payment of the price until the seller has restored him to quiet possession, unless the seller prefer to give security. There is au exception to this rule when the buyer has been informed, before the sale, of the danger of eviction.” Merritt, by intervention in the injunction suit and claiming to defend the title and claim of Stewart,” was bound by the judgment rendered in that case, and the question arises, is he not precluded by the exception- rei judicata from setting up the same ground in his application to enjoin the alias order of seizure and sale issued by Ami and Oscar Merle ? True, he adds the additional ground that he was disturbed by the claim of Knapp holding title to a part of the land from the State. We are satisfied that the validity of Knapp’s title depended upon that of the United States ; for the State could only derive title from the United States ; and that failing, the right set up by Knapp would necessarily fail as being derived from a vendor without title. There was therefore no new grounds set forth in the petitions for these injunctions obtained by Merritt. The plea of prescription is wholly groundless. The suit of Eugenie and Corinne Merle was not founded on notes as pretended, but upon the written obligation to pay, contained in the deed of sale of sixteenth September, 1859. The plea of prescription of five years is therefore not applicable. 3 An. 46; 13 An. 294.

The obligations of the plaintiffs in injunction were for the price of land and slaves. They can onlv bo enforced against the land mortgaged.

It is therefore ordered that the judgment of the district court dissolving the injunction be annulled and set aside. It is further ordered that this case be remanded to the court of the first instance, with instructions to reopen it, so far as to ascertain, by proper proceedings, to be taken for that purpose, the value of the slaves sold, at the time the contract was entered into, and which form a component part of the consideration stipulated for the entire purchase of both land and slaves. It is further ordered that when the value of the slaves shall have boon so ascertained, and the deduction thereof made as herein directed, payment of the remainder be enforced by sale of the land mortgaged and under seizure.

It is further ordered that the costs in the lower court be paid by the plaintiffs and appellants, and those of the appeal by defendants and appellees.

Mr. Justice Howe recused.


author: IIowe, J.

text:
    No. 2809.
    State, ex rel. City of New Orleans, v. The Judge of the Eighth District Court for the Parish of Orleans.
    Where an intervenor causes certificates of stock to be sequestered from the plaintiff in the action, the latter becomes practically a defendant in sequestration, and, as such, lias aright to bond the property.
    This right to bond exists whether the writhe directed against “property,” as mentioned in C. P. 271, or against “obligations and titles,” as mentioned in C. P. 272. In either case, the ownership being in dispute, the conservatory effect of the writ is to compel the -possessor, if he wishes to retain possession, to give seeurify in favor of the claimant, who •demands possession.
    APPLICATION for Writs of Mandamus aud Prohibition.

      J. It.' Beckwith, City Attorney, for relator. Henry G. Bibblc, Judge, respondent.
   IIowe, J.

This is an application by the city of New Orleans for writs of mandamus and prohibition, to compel the respondent to grant an appeal from an order permitting certain certificates of stock to he bonded by the party from whom they had been sequestered at the instance of relator. The order, from which an appeal is asked, was made in the case of McComb v. The New Orleans, Jackson and Great Northern Railroad Company, a contest in which the ownership of the stock is involved, and in which the relator intervened. Upon the allegation that there was danger that McComb might, during the pendency of the action, remove tho certificates beyond the jurisdiotiou of the court, the relator procured an order that they be sequestered. The sequestration having been made, McComb, from whose possession they had been taken, and who was thus practically a defendant in sequestration, moved to bond under the provisions of article 279 C. P. The motion was granted, the bond being fixed by the judge in the sum of $300,000.

The counsel for relator insists that the order permitting the certificates to be bonded was erroneous, and that an appeal lies therefrom. Tho first proposition might be correct and the second incorrect, for an interlocutory judgment, however erroneous, can not be appealed from, unless it works an irreparable injury. But we are constrained to think that neither proposition can he maintained. The second shows, as already stated, that tho certificates were sequestered under the provisions of the Code of Practice relative to conservatory remedies. The allegations of ownership in relator, and danger that McComb might remove them beyond the jurisdiction of the court, show that it was the ordinary writ of sequestration that was applied for, ' and the order of the judge that “the property and documents described in the foregoing petition he sequestered, as prayed for, and let the same remain ■sequestered in the possession and control of the court, and subject to its order,” confirms this view. As soon, therefore, as the certificates were taken into the custody of the court, the defendant in sequestration had a right to bond. It is urged that the certificates are not “ property,” in the sense in which that word is used in article 271 C. P., but that they are of tbe class of objects mentioned in article 272, which declares that obligations and titles may also be sequestered when their ownership is in dispute,” and that the former may bebón ded by the defendant under article 279, but not the latter. We can not assent to this proposition. In cither case the conservatory effect of the writ is to compel the possessor, if he wishes to retain possession-,, to give security in favor of the claimant who demands possession.

As to the right to an appeal, the question has been settled adversely to the clrims of the relator by the decision in the case of State v. Judge,, 14 La. 590, a decision which is founded on sound reason, and has been-uniformly adhered to. The case of Comstock v. Paie, 15 La. 481, does not conflict with this view. That decision was rendered before the enactment of the law of 1842, by which a plaintiff in sequestration was permitted to bond, in case the defendant declined the privilege. The court thought that the order permitting the plaintiff to bond was unauthorized by law (as it was at that time), and that it wrought-an injury, and so entertained the appeal, but the decision in 14 La. was not overruled or affected in principle. In fact, if the plaintiff in sequestration were allowed to take property from the defendant, and then appeal suspensively from an order allowing the defendant to bond, the article 279 would be nullified, and , the. condition of the defendant rendered miserable indeed.

For the reasons given, it is ordered that the rule granted herein be-dismissed, with costs.


author: Wyly, J.

text:
    No. 1896.
    Isaac Bloom v. Fred Schonekas.
    Where a case involves only questions of fact and the testimony is conflicting, judgment will be given in favor of the party having the weight and preponderance of evidence, and in a case where the plaintiff has tailed to establish his allegations of fact by evidence, judgment will he given for the defendant.
    APPEAL from the Sixth District Court of New Orleans. Fmerson, Judge of the Third District Court, presiding.

      .Face, Foster & F. T. Merriclc, for plaintiff and appellant. T. J. Scmmes, for defendant and appellee.
   Wyly, J.

The plaintiff alleges that his lot, on which his residence is situated, fronting on Melpomene street, is contiguous in its rear to the rear of the lot of the defendant, fronting on Camp street; that formerly the waters falling on the defendant’s lot flowed from rear to front, on Camp street; but that he has so raised and elevated the grade thereof, that the front part is higher than the rear, and failing to construct gutters to drain the rear' of his said lot,'the waters falling thereon flow into and upon the adjoining lot of the plaintiff, causing him great damage, not only to the shrubbery and flowers of his garden* but also to Ms dwelling house, the foundation thereof being greatly injured by the dampness and water thus flowing under it. He prays that tho defendant be compelled to construct proper drainage on his said lot, so as to turn the flow of the waters falling thereon to its natural course over his own property to Camp street, or otherwise prevent its flow on the premises of the plaintiff. He also prays for one thousand dollars damages, with interest from judicial demand.

Tho defendant pleaded the general denial. There was judgment for tho defendant, dismissing tho suit, and the plaintiff has appealed. The questions presented are only of fact. We have examined the evidence, and agree with tho district judge that tho decay of tho foundation of plaintiff’s dwelling was the natural consequence of old ago, and not owing to the drainage complained of, and that the plaintiff has failed to make out his case.

The evidence, though somewhat conflicting, in our opinion, decidedly preponderates in favor of the defendant.

Let tho judgment be affirmed, with costs.

Rehearing refused.


text:
    No. 2760.
    State, ex. rel. J. H. Wilson, v. Judge of the Seventh District Court for the Parish of Orleans.

      WIigvg separate appeals are taken by tbo principal and surety on tlie bond from a jndcmenfc in solido dissolving an iujunction, the principal in injunction, if solvent, is a good and legal surety on tho appeal bond given by the surety in the injunction. As a general rule the only question to be considered in determining the sufficiency of the bond is the solvency of the surety.
    A suspensive appeal taken by the principal in injunction will not suspend execution of the judgment against the surety on the injunction bond.
    APPLICATIONfor Writ of Prohibition.

      Augustine & Michel, for relator. IS. Howard MeOaleh, for plaintiff in injunction. Gollens, Judge, respondent.
   Howell, J.

This is au application for a writ of prohibition, in which two questions are presented:

First — Is the principal in an injunction bond a good and legal surety, if solvent, for his surety thereon in an appeal bond given by the latter, when each lias taken a separate appeal from a judgment against them in solido, tho said principal having given other surety on his appeal bond ?

Second — Does the suspensive appeal, taken by the principal, suspend the judgment as to the surety who does not join in said appeal ?

In support of the negative of the first question the judge a quo cites the cases iu 18 An. 659 and 12 La. 383

In the first of these cases, there appears to have been only one appeal, which was taken by the principal, and his surety on the injunction bond, who was also condemned by the judgment, was tlie surety on the appeal bond. No question seems to have been raised as to the sufficiency of the surety to answer to both bonds, but the appeal was dismissed on the ground, which we deem too broadly stated, that “judgment having been rendered against the surety as a party, he is rendered incompetent to become surety on the appeal bond, in the same case,” and the case in 12 La. 383 is cited as authority. This latter-case does not, however, in our opinion, sustain the position to its full extent, but recognizes the true doctrine that the conditions of the two bonds being different, the same person may well sign both, if otherwise unexceptionable, and the qualifying remark at the close was unnecessary to the decision, and may be regarded as oUter. This doctrine is more clearly and fully stated in the case of Greiner v. Prondergast, 2 E. 235, where it was held that the surety in an injunction bond may be surety for his principal on an appeal by the latter from a judgment against both, in solido, to pay damages and costs, provided the surety would be such as would indemnify his adversary against all the consequences which might result from the appeal, as in the case of an increase of the sum recovered.

This is consonant with the articles of the Code prescribing the qualifications of a surety, which are, that he must be able to contract, of property sufficient to answer for the amount of the obligation, and resides within the jurisdiction. C. C. 3011, 3033. He may be on several bonds, but if his property be sufficient to answer for all of them, he is a good surety as to this qualification. It is an error to say that no additional security is given the appellee, because the surety on the appeal bond is a party to and liable for the judgment or part of it, from which the appeal is taken, if his property is sufficient to meet the liability for both. It is his ability to respond, rather than the manner in which he is bound, that is to be considered in this respect. In this case the surety was shown to be good for the appeal bond as well as the injunction bond, and the court below erred in rejecting him on the ground that he was a party to the suit. Had he joined his principal in the same appeal, and in one and the same bond, he would not have been a security, but a principal, and the two, as one principal, would have to give a surety on their bond. This case is different.

Upon the second point, it is well settled that an appeal, by the principal will not suspend the judgment as to the surety. See 3 An. 319; 4 An. 514; 11 An. 707; 15 An. 433; 19 An. 291.

It is therefore ordered that the inhibition herein be made perpetual.


author: - Taliaferro, J.

text:
    No. 2793.
    State, ex rel. Wm. Malady, v. The Judge of the Seventh District Court of New Orleans.
    In a suit for separation from lied and board by the wife against her husband, tlie jurisdiction of tbe court a qua is not lost over tbe case in matters not passed upon m tbe decree of separation, and the judge a quo may pronounce on tbe right of tbe wife to receive alimony pending tbe litigation, notwithstanding a suspensive appeal has been taken by tbe Husband from tbe judgment of separation.
    The husband ’can not be made to pay counsel fees of tbe wife in a suit for separation from bed and board, oven though she may be in necessitous circumstances, and entitled to alimony, ponding the proceedings for separation.
    APPLICATION for a Writ of Prohibition.

      Face, Foster & F. Ti Merrick, for relator. Gollens, Judge, respondent.
   - Taliaferro, J.

The relator complains of the action taken by tbe judge of tbe Seventh District Court of New Orleans, in regard to a rule applied for against tbe relator by Ills wife, to show cause why he should not be decreed to pay her alimony pending proceedings by her to obtain against her husband a decree of separation from bed and board, and also to furnish her with the means to pay her attorney’s fees for the prosecution of her suit.

The usual order was rendered by this court, aud tlie judge of tbe Seventh District Court filed, with Ms answer, copies of tbe proceedings bad in his court in reference to the matters complained of.

It appears that the wife of the relator obtained a judgment against her husband on tbe third of February, 1870, .decreeing a separation from bed and board, a settlement and partition of the community of acquets and gains previously existing between tbe parties, and that tbe husband account for the revenues of certain real estate in the city of New Orleans, which have accrued since the institution of the wife’s suit..

On the seventh of March following, and after a suspensive appeal from the judgment had been taken by tlie husband, it was suggested,, ou motion of tbe plaintiff’s counsel, that she was in destitute circumstances, without money to procure tlie necessaries of life, in feeble health, and dependent upon the charity of her friends for maintenance and comfort, and therefore the husband was ordered to show cause, on the nineteenth of the current month, why he should not be condemned to pay the plaintiff, during tlie pendency of tbe suit, $150 per month as alimony, and tbe sum of $300 to defray her counsel fees.

Tlie defendant appeared, and excepted, on the grounds:

First — That, there being a suspensive appeal from tbe judgment rendered in tlie case against him, tbe court is without jurisdiction to. inquire into the matters set forth in the rule.

Second — That, even if possessed of jurisdiction, defendant is not-liable for tbe plaintiff’s counsel fees.

Tbe court sustained tbe exception, so far as relates to the claim of $300 to pay counsel fees, but overruled it as to the claim for alimony,. and fixed a day for trying the rule on hearing evidence.

The relator thereupon applied to this court for a writ of prohibition, to stay further proceedings in the lower court.

Article 146 of the Civil Code provides that: “ If the wife has not a-sufficient income for her maintenance during the suit for separation,, the judge shall allow her a sum for her support proportioned to the means of the husband.”

This right is incident to the action for separation from bed and board. It.may or may not arise. Where it does arise, no rule of practice requires that it shall be set up in the original suit for separation. In this case, it seems it was done, but it was not passed upon by the lower court. It constitutes no part of the judgment appealed from, and is therefore not a subject matter over which the district court lost jurisdiction by the appeal. 7 M. 2; 10 Rob. 152.

The wife, having the right to claim, under the conditions stated, a. maintenance during the suit for separation,” may interpose this claim at any time before a final decree of the appellate court. We see no. reason why, in the present case, where the district court has not passed upon the question, the wife should be debarred the right of prosecuting this incidental demand after the rendition of the judgment. Her manner-of proceeding by rule was not objected to in the lower court. The final termination of the suit may be protracted for some time to come.

The counsel of the relator argue that the decree of the lower court granted the wife revenues of certain property in lieu of the alimony claimed, and that she is estopped thereby. We do.not so understand tbe judgment of tbe district court. It directs that the husband and one Mary B. Caldwell account for the rent of certain described property since the institution of the suit for separation. This accounting for rents is intended to be brought into the general settlement and partition ordered by tbe court to be made between tbe parties. It makes-no provision for relieving tbe immediate necessities of the wife.

We think it will best comport with law and equity to permit the-wife to establish, by competent evidence, her right to the maintenance she claims, if she is entitled to it, and to this end, it is ordered that the-rule taken in this ease by the relator be discharged, at his costs:


author: Howe, J. Howe, J.

text:
    No. 2330.
    Succession of Nicholas Markey.—On Opposition to Account.
    The vendor of an immovable, in the settlement of the succession of the vendee, is entitled to ■ be paid in preference to every other claim, except those charges which have been necessary to procure the sale of tho thing. Oí these charges attorneys’ fees form no part
    from the Second District Court, parish of Orleans. JDwoigneaud, J.

      Charles Louque, for administratrix, appellee. Hornoré Benedict, for opponent, appellant.
   Howe, J.

This case is related to that of Graham v. Succession of Markey, just decided. Tlio sale attempted to bo made under executory process, having been prevented by the suspensive appeal taken from the order dissolving the injunction, a rule was taken by creditors •on the administratrix, 'and a regular probate sale Was made. An account was filed, showing ni> assets save the proceeds of this sale of the land, which was subject to Graham’s mortgage and vendor’s privilege. Graham opposed the account on several grounds, claiming that he should be allowed a larger sum for interest; that he should bo allowed his costs and attorney’s fees in the executory process above mentioned, and that he should be paid by preference to all other creditors. He also opposed other items, but in the view we have taken of the case, we do not deem it necessary to pass on these. As vendor, the appellant, Graham, is entitled to be paid in preference to every ■other claim, except those charges which are necessary to procure the sale of the thing. 13 La. 8 ; 2 R. 280, 527; 11 An. 469. He is entitled to interest, as stipulated in the note, at eight per cent, per annum, from May 21, 1867. He is not, however, entitled to costs of his executory process, it having been decided that it was issued improperly.

The judgment of the court below must be modified. It is therefore ordered that the judgment appealed from, so far as it dismisses the opposition of James Graham, be avoided and reversed; that said opponent be placed upon the account forthc sum oí $600, with interest •at eight per cent, per annum from May 21, 1867, and paid in preference to all other items of said account, except law charges proper (ot which •attorneys’ fees form no part), commissions of administratrix, and actual expenses of sale, and that, as thus amended, the said judgment bo •affirmed, the costs of appeal to be borne by the succession.

On Application for Rehearing

Howe, J.

There is a clerical error in our judgment, which wo may ■correct without granting a rehearing, It is therefore ordered that the said judgment be corrected, so as to allow to the opponent, Graham, interest only from November 24, 1868, at tlio rate of eight per cent, pier annum till paid, and that the rehearing bo refused.


text:
    No. 2065.
    James Graham v. Succession of Nicholas Markey.
    .A court of probates, as such, lias no jurisdiction to issue an order of seizure and sale in executory proceedings for the collection of a mortgage note.
    APPEAL from the Second District .Court, parish of Orleans.

      Dimigneand, J. Charles Louqne, for plaintiff and appellant. Hornor & Benedict, for defendant and appellee.
   Howe, J.

The plaintiff proceeded via exeentiva in this case to collect ■a note secured by mortgage and vendor’s privilege, and notice of the proceeding was served on the administratrix. The latter enjoined, on the ground that the court, as a probate court, was without jurisdiction. This injunction was afterwards dissolved, and the administratrix has appealed.

The objection urged by the appellant that the Second District Court of New Orleans, as a court of probates, is without authority to issue an. order of seizure and sale is technically correct. It can no more do this than it can issue a writ of fieri facias. The object of the order of seizure and sale is to put money in the hands of the sheriff, to be by him paid over to tlie seizing creditor. The proper object, on tho other hand, of the process issued by a probate court is to put money in the hands of the administrator, to bo by him applied, under the orders of tho court, in due course of administration. Bank v. Marigny, 11 Rob. 211 ; State v. Third District Court, 20 An. 311.

For these reasons, it is ordered that tho judgment appealed from be avoided and reversed, and the injunction perpetuated, with costs in both courts.


text:
    No. 1878.
    Barbara Hoffman v. John Steib.
    Executory xu'ccess can not be issued except upon authentic evidence that tbe debt is due.
    Where, therefore, it was issued to enforce a debt ?greed to be jaid at tho majority of the Xdaintiff, and the petition alleged that the plaintiff was emancipated by mc*T.age, and the deb. was, therefor-1, exigible; but there was no authentic evidence of tho f cfc that she had become of age. Held — That the process w»s illegal and must be annulled.
    APPEAL from the District Court, parish of Jefferson. Pardee, J.

      A. Gasabat and P. & II. Marr, for plaintiff and appellee. P. 0. Labatt, for defendant and appellant.
   IIowe, J.

Tlie defendant has appealed from an order of seizure and sale rendered in executory proceedings for the enforcement of a mortgage granted by Joseph Hoffman in favor of his minor children (of whom the plaintiff is one), and assumed by the deiendant in his purchase of the property directed to he seized and sold. It appears from the act that the principal amount secured in this way is not duo until the majorities of tho minors respectively. The plaintiff alleges in her petition that the debt is exigible, she being emancipated by marriage; ” but while this allegation makes it clear that she had not .arrived at the age of twenty-one when she was marrieu, it dees not declaro her to ho of age when the order was obtained. And if the petition had so declared, there is no authentic evidence of tlie fact. Tim net of salo shows that the plaintiff was a minor in I860. It does not show, as it might easily have done by proper recitals, that she must have became of age on or before July 18, 1863, when the order appealed from was granted. That the debt is due is not, therefore, established by such evidence as the law requires as a foundation for the executory process.

It is therefore decreed .that tho order of seizure and sale appealed from he avoided and annulled, and that the plaintiff pay tho costs-of both courts.


author: Wtlt, J. Ludeling, C. J. Wn,r, J.,

text:
    No. 1859.
    J. Pinckney Smith v. J. A. B. Williams.—Mrs. M. E. Dorsey, Intervenor.
    A and B entered into a written contract of partnership to carry on tlie planting business in the parish of Morehouse. A, one of the partners, made a contract in his own name with Smiih & Carr, commission merchants in the city of New Orleans, to furnish supplies, etc;, for the plantation in the parish of Morehouse. Smith & Carr took the individual note of' Ar m tho name of Smith, in settlement ofc tho account. A and B settled their partnership at th i close of tlic year, and divided the cotton made on the place. B shipped her part of the cotcon to her own merchant. Smith, as holder of tho note given by A, brought suit, and sequestered the cotton of B, in tho hands of her merchant in New Orleans, alleging that he had a privilege on the cotton for tho supplies iurnished, which were used to make it B intervened in this suit, and claimed tho cotton as her individual property, and denied that it was subject to the privilege of Smith for supplies furnished. Held — That A, having contracted for tho supplies in his own name and given his individual note in settlement of tho account, no privilege existed on tho crop made in partnorshix). That the dent being against an individual, property belonging to a partnership could not be mado liable therefor. That the crop having been divided between the partners, that which belonged to audhadbeen taken liossession of and shipped by one partner; was not liable for the debts of the other partner; evon though it were shown that the supplies furnished by the creditor for which the debt was contracted was used in making the crop.
    It would seem that where a plantation has been worked in partnership, no privilege exists iu favor of the commission merchant, who has made advances and furnished supplier to one of the iiartners, on the portion oí the crop which belongs to the other partners. To hold tl e interest of the other partners in the crop liable for the supplies, they must have been furnished to the partnership, and not to an individual, although he be a partner.
    APPEAL from Fourth District Court of New Orleans. Théard, J.

      Hays c6 New and O. F. Bemiss, for plaintiff and appellant. Breaux & Fenner, for intervenor and appellee. Defendant not represented.
   Wtlt, J.

In 1866 the defendant, Williams, and the intervenor, Mrs. Dorsey, cultivated iu partnership a plantation, owned by the latter, in the parish of Morehouse. It was under the management and supervision of Williams. The terms of the partnership were that half the expenses of supplies and labor should be Iurnished by each partner, and that in consideration of Williams’ services as manager, Mrs. Dorsey was to furnish the land free of rent.

It appears that Mrs. Dorsey furnished her part of the supplies according to contract, and a -partnership settlement was had in which Mrs. Dorsey received the twelve bales, the subject of tho present litigation, as her share of the cotton produced ou the place.

It, also, appears that Williams obtained advances from the plaintiff, J. Pinckney Smith, a cotton factor of this city, to make the crop, and that the settlement occurred between the partners without paying Smith. Mrs. Dorsey shipped the twelve bales, her share of the products of the crop, to Messrs. Payne, Huntington & Co., cotton factors of this city, for sale, and J. Pinckney Smith sued out a writ of sequestration and caused the same to be seized, at the same time suing Williams, alleging his indebtedness to him, and, also, that he had a privilege as furnisher of supplies on said consignment.

The court a qua gave judgment for plaintiff for the amount claimed, against Williams, but maintained the intervention of Mrs. Dorsey, recognizing her as the owner of the twelve bales of cotton, and .dismissed. the sequestration of plaintiff. Plaintiff has appealed.

Smith was not a party, nor was he aware of the terras of the partnership formed between Williams and Mrs. Dorsey. He simply furnished supplies to make a crop, which was .under .the supervision of his debtor, Williams. His supplies contributed to make the crop, of which the twelve bales, involved in this litigation, were part. The question is : Has ho lost the privilege which the law gave him on this cotton by tho division of tho products of tho predial estate by the partners to which he was not privy. We think not. The law is quite clear that no partition by the joint owners or partners can defeat the creditors of the partnership or destroy their privilege upon the tiling-held in common.

The privilege granted by law to factors ior the supplies furnished to produce a crop, would be vain and nugatory if parties were thus permitted to shuffle off tho rights of creditors attached to the thing produced. The plaintiff contributed to produce the crop, the common interest of the partnership, and; in our view of the law, his rights therein, are superior to that of cither of tho partners, as well after the division as before.

It appears, however, that the indebtedness of Williams occurred prior to tho act of 18G7, giving the factor a lien for money advanced as well as the supplies. Under the law existing- at the time, the factor had only a privilege for the supplies. It appears from the evidence that about half tho indebtedness of Williams was for cash advanced, for which the plaintiff, by the law then in force, had no privilege. We think that Smith’s privilege should he recognized lor one-half of tho one thousand and thirty-eight dollars and four cents, and. interest, for which he had judgment against the defendant, Williams.

It is, therefore, ordered that, tho judgment appealed from be amended by recognizing- and allowing the privilege of plaintiff on the cotton seized, to the amount of five hundred and nineteen dollars and two cents, with legal interest from judicial demand ; that his sequestration to that extent be maintained, and, as thus amended, that the judgment of the court below he affirmed. It is further ordered that the intervenor pay costs of this appeal

On Rehearing,

Ludeling, C. J.

Mrs. M. E. Dorsey agreed to plant in partnership with J. A. B. Williams, during the year 1866, on the terms following:

Each was to furnish one-half of the mules, farming implements, supplies, and labor neces.-ary to make the crop; and Mrs. Dorsey was to furnish her lands, and Williams his personal services on the place. Mrs, Dorsey complied with her engagement — so did Williams. In order to enable him to fulfill his contract, however, he was obliged to obtain credit from, others, in the city of New Orleans and elsewhere.. It appears that Thomas M. Scott & Co., and Smith & Carr made advances to him in moneys and supplies.

In 1867 the partners settled, and divided the cotton raised on the place cultivated in partnership, and Mrs. Dorsey received her portion thereof, and shipped it to her agents in New Orleans.

Then, J. P. Smith, alleging that J. A. 33. Williams owed him one thousand and thirty-eight dollars and four cents for supplies furnished by him, as factor and commission merchant, to the said Williams to carry on a plantation in the parish of Morehouse, had the cotton allotted to Mrs. Dorsey sequestered as the property of Williams.

As the evidence of his debt against J. A. B. Williams, the plaintiff annexed to his petition the individual note of J. A. B. Williams in favor of J. P. Smith.

The evidence does not show that J. P. Smith furnished supplies to Williams or to the partnership. It does not show that either Thomas M. Scott & Co. or Smith & Carr furnished any supplies to the partnership, existing between Mrs. Dorsey and Williams, or that they even knew of the existence of such a partnership. Smith & Carr gave credit to J. A. B. Williams; their advances in moneys and supplies were to him individually. Under the circumstances of this case, the parties who made advances to Williams acquired no privilege on the portion of the crop belonging to Mrs. Dorsey, even if it had been proved that the supplies were used on the place. It is clear J. P. Smith lias no privilege on her cotton. The note sued on is in favor of J. P. Smith, and it is signed by J. B. Williams. This shows that neither Smith & Carr nor J. P. Smith looked to the partnership or to Mrs. Dorsey for payment for the advances made.

On the trial the plaintiff introduced in evidence an account in favor of Smith & Carr against J. A. B. Williams for supplies, money, commissions, interest, etc., corresponding in amount with the note sued on ; and it is proved that the note was given for this account. Although this evidence contradicts the plaintiff’s own allegation in his petition, that he furnished the supplies, we will give it full weight, as it was not objected to. .

It does not, however, establish a privilege against the intervenor or against the partnership, of which she was a member — nay, it is not even alleged in the petition that there exists a privilege against her or the partnership. The allegation is that plaintiff has a privilege debt against J. A. B. Williams, and the cotton is sequestered as his cotton. It, is proved positively that the moneys advanced were for Williams’ personal use; and it is not clearly proved where the supplies went to —the evidence, creates, at the most, only a inobability that they may have been used on the plantation, cultivated in partnership. This is-not sufficient, even if Williams could have created a privileged debt against her — “ Adore non probante ábsolvitur reus.” Tho property sequestered belongs to the intervenor.

It is therefore ordered and adjudged that the judgment of this court rendered on the thirteenth of December, 1869, be set aside, and that-tho judgment of the district court .be affirmed, with costs of appeal.

Wn,r, J.,

dissenting. I still adhere to the opinion of this court rendered in this case on thirteenth of December, 1869.

The lien of the furnisher of supplies attaches, to the products as-well after division thereof by tho planting partners as when they were held by them in indivisión.

The privilege springs from tho nature of the debt-; it is an accessory to the principal obligation and accompanies it without a written transfer. The note on which this suit is founded, has for its consideration the items stated in the account of Smith & Carr against the defendant, J. A. B. Williams; it represents that debt.

The witness Walden, the clerk of Smith & Carr, who took the note from the maker, swears positively that the account in evidence, “ is a statement of Williams’ account and for which the note was given, being the note sued upon.”

It matters not how the clerk of Smith. & Carr drew-the note m closing their account with the defendant, Williams, whether it was-made payable to the firm or to J. Pinckney Smith, it remains, nevertheless, as- an evidence of that debt. Whether tho name of the firm who furnished the supplies was mentioned in tho note or not, in no-manner affected the question of privilege.

The note before us evidences the debt and the privilege resulted from its character, regardless of the form of the instrument.

If the debt was for supplies furnished to make the crop which the defendant and intervenor were raising in partnership, a lien on that crop arose, it matters not in whoso name they were furnished,'or whether .credit was given to the partnership or to one of the partners only. If the debt was for supplies it is a matter of no importance in whose name they were furnished, whether in the name of Smith & Carr or in the name of J. Pinckney Smith.

. Plaintiff being- the holder of the note is presumed to be the owneiof the debt and also of the privilege accompanying it, if the consideration was for supplies to make tho cotton sequestered.

It is no defense to set up that the plaintiff is not the owner of the-note — that it evidences a debt to Smith & Carr, and not to J. Pinckney Smith, the payee. This would not concern the defendant, nor any one else, unless he had equities to plead against the party in whom tlie alleged ownership.is invested. It is not pretended'that there any equities to plead in bar of this demand as against Smith & Carr.

I repeat, whether the supplies furnished to make the cotton sequestered, were by Smith & Carr, or by J. Pinckney Smith, in no manner concerns the intervenor,-Mrs. Dorsey. If the debt evidenced by the note was for supplies the privilege is attached to the cotton, it matters not who owns the note, or who advanced the supplies. I think the evidence in the record shows beyond doubt that the supplies were furnished by Smith & Carr to make the crop, and that the note in suit evidences that debt which has not been paid.

I think the brief of the intervenor, in effect, admits that the supplies were furnished by Smith & Carr. In it I find the following statements: “If the court can find in the record a word of evidence to show any supplies furnished except those stated in the account current -of Williams with ‘ Smith & Garr,’ and which were furnished by Smith cO Carr, we will depart satisfied. We will do the same if the court can find in the pleadings or evidence any allegation or proof that J. Pinkney Smith has the right to assert a privilege for supplies furnished by Smith & Garr." ■

Smith declared upon a note which, on its face, shows that the consideration was “ supplies iurnished to carry on the planting of the Iliaco known as Mrs. Dorsey’s.”

The evidence shows that that note was given in settlement of the account of Smith & Carr and it evidences that debt. As the holder of the debt to Smith & Carr, J. Pinckney Smith undoubtedly had the right to assert the privilege accessory to that debt without a written transfer from its original owners.

Por these reasons and those assigned in the original opinion of this court, I feel it my duty to dissent from the opinion of the majority of the court just rendered.


text:
    No. 2675.
    John B. Slawson v. John Meggett et al.
    'The Supreme Courfc has no jurisdiction of a possessory action in wiiich (the ownership of the property nofc being in dispute), the value of the possession is neither alleged nor proved to exceed $500.
    APPEAL from Seventh District Court, parish of Orleans. Collens, J.

      JE. H. McCaleb, for plaintiff and appellee, llandolph, Singleton <£• Browne, for defendants and appellants.
   Howe, J.

A motion has been made to dismiss this appeal on the ground that the amount in dispute does not exceed the sum of five hundred dollars.

The suit is a possessory action, brought to recover firstly, possession of certain immovable property, and secondly, rent of the same from November 15, 1868, to the time of restoration, at the rate of thirty •dollars a month. The ownership of the property is not in dispute, and the value of the possession, which is in controversy, is neither alleged nor proved to exceed $500. The claim for rent, at the utmost, is $420, and the judgment, therefor, was $40.

For these reasons it is ordered that the appeal herein be dismissed, with costs.

Rehearing refused.


author: Howe, J. Lodeling, C. J.,

text:
    No. 2854.
    The State v. William E. Brewer.
    'Tb.e decisions of this court being matters of record and publication, it will be presumed that the Legislature had them in view in using a repealing clause of a peculiar character which had been, by those decisions, repeatedly interpreted; and, even if the correctness of the interpretation be doubted, the interests of society in a case where the release of a convict is claimed in virtue of an alleged repeal of a criminal statute, demand an obedience to the rule, stare decisis.

    If a criminal statute be repealed, the prisoner who is being prosecuted under it must be discharged, even after judgment in the interior court; but this rule is founded on the presumption of a legislative pardon, and does not exist where there is no room, for such presumption.
    As the revisory legislation of 1870 contained a repealing clause identical in effect with that of 1855, and as the latter was repeatedly decided not to have repealed the provisions contained in the statute ifcselfj but, on the contrary, to have continued them in iorce, it follows, on precedent, that the former did not repeal a pre-existing statute relative to the crime of manslaughter, but, on the contrary, continued it in force.
    APPEAL from the District Court, parish of Tensas. Hough, J.

      William J. Duncan, District Attorney, for the State. Farrar & Beeves, for defendant and appellant.
   Howe, J.

The defendant was indicted in October, 1869, for manslaughter, under the third section of the act of March 15,1855, relative to crimes and offenses.

On the twenty-first of April, 1870, he moved to quash the indictment, on the ground that the statute under which the indictment was found had been repealed, and that this repeal operated his discharge and legislative pardon.”

The motion was overruled; the prisoner pleaded not guilty, and was tried and convicted. He then moved in arrest of judgment, assigning the same reasons as those on which the motion to quash was based.

This motion was denied, and, having been sentenced to imprisonment at hard labor, he has appealed to this court.

The question presented for our decision is, whether section third of the act of 1855, relative to crimes and offenses, was, on the first day of April, 1870, repealed by the act of the Legislature, No. 96 of the laws of 1870, which went into effect on the day last named.

The revisory legislation, which we are thus called upon to interpret, was initiated by the Act No. 31, of 1868, entitled An Act to provide for the revision of the statutes of the State of a general character,’’ •and the objects to be attained are therein stated to be these:

“ That the qrablic statutes of this State should be revised, their language simplified, their incongruities corrected, their deficiencies supplied, and the whole arranged in order, and reduced to one connected 'text, with a view to their adoption as the revised statutes of this State,'to the end that all may know the law.”

The work thus provided for, appears-to have been completed during the present year, and was approved by the Legislature in "the Act No. 96, already referred to, which act contained the following repealing clause:

“That all laws, or parts of laws, contrary to or in conflict with the imovisions of this act, and all laws, or parts of laws, on the same subject matter, except what may be contained in the revised Civil Code and Code of Practice of the present session, be, and the same are hereby repealed, except the thirty-third section of an act entitled ‘ An Act for the punishment of crimes and misdemeanors,’ approved May fourth, eighteen hundred and five; and that, in so fair as there may be any conflict between the provisions of this act and any provision of the said revised Civil Code and Code of Practice, that said Code shall be held and' taken as' the law governing, and that this act take effect on the first day of April, A. D. eighteen hundred and seventy.”

It will at once appear that this revisory legislation is, so far as this case is concerned, identical in character with that wlflch was set on foot in 1854, and completed in 1855, and'we naturally inquire, what were the decisions of this court in reference to the peculiar repealing clause, so often repeated in the system of 1855?

In the case of Holmes v. Wiltz, 11 An. 439, it was decided by a majority of the court that an interpretation of a statute which must lead to consequences mischievous and absurd, is inadmissible, if the statute is susceptible of another interpretation whereby such consequences may be avoided; that the legislative intention must be honestly-sought after, and faithfully' executed, if not in conflict with a paramount law; and, in cases like this, the meaning must be sought, not merely in the words of the statute itself, but in its subject matter, in the history of the legislation thereupon, in the purpose of the law, the reason of its enactment, and the evil it sought to remedy.

It was further held that the statute under consideration in that case, containing the following repealing clause, “ that all laws contrary to the provisions of this act, and all laws on the same subject matter, except what is contained in the Civil Code and Code of Practice, be repealed,” did not repeal the provisions contained in the statute itself, but, on the contrary, continued them; that the statute was, in fact, but a grouping together in one act of parts of pre-existing laws, and that by it the Legislature merely said: “ Here is a condensed statement of all the law now in force relative to the mode of appointment, term of service, amount and condition of the bond, etc., of the recorder of mortgages for the parish of Orleans; all else, upon these specified imatters, is repealed.”

In the ease of Stafford v. His Creditors, 11 An. 470, in which the opinion of the court wuis delivered by the member who had dissented in the case of Holmes, the question was more closely related to the one at bar, for it concerned a statute highly penal, and the imprisonment of the appellant. The court said: “In the case of the State, on the relation of Holmes, v. Wiltz, we lately held that the repealing clause appended to the revisory acts of 1855, did not repeal such pre-existing statutory provisions as were re-enacted in the revisory statute.”

In the case of the State v. Clay, 12 An. 431, a criminal case, the court said: “An examination of the act of 1855 on this subject (burnings), and a comparison of it with the former laws will show that it was the intention of the Legislature to arrange under the head offenses to-habitations,’ all the laws which it intended to continue in force on the subject of setting fire to buildings,” etc.

In the case of Levois v. Gerke, 12 An. 832, Mr. Justice Spofford, who concurred in the opinion which finally prevailed on rehearing, said: “ In the case of Holmes v. Wiltz, we held that the repealing clause (of revisory legislation of 1855) only swept away such anterior legislation upon the matter specifically treated of in the new legislation as was not retained in the latter. In Stafford v. His Creditors, the new law treated specifically of the penalty for a fraudulent bankruptcy, and we held that so much of the old law concerning this penally as was-not retained in the new was repealed.” And Mr. Justice Buchanan concurred in this view of the effect of the repealing clause.

These decisions and opinions were matters of record aud publication,, and formed an important chapter in the jurisprudence of the State when the Legislature of 1870 adopted the revisory laws which we are-now considering. Wo must presume that the Legislature had them in view when they made use of the repealing clause which had been so-fully interpreted; and even if we doubt the correctness of the interpretation, we can hardly imagine a case in which the interests of society more loudly demand an obedience to the rule stare deccsis.

There is no doubt that, if a criminal statute be repealed, the prisoner who is being prosecuted under it must be discharged, but we must decide, on precedent, that the statute now under view has not been repealed, but only continued in force as a portion of a revisory system. We may properly quote, in this connection, the language of Chief Justice Shaw, in the case of Wright v. Oakley, 5 Metcalf (Mass.), 406:

“In construing the revised statutes, and the connected acts of amendment and repeal, it is necessary to observe great caution to avoid giving an effect to these acts which was never contemplated by the Legislature. In terms, the whole body of the statute law was repealed;, but these repeals went into operation simultaneously with the revised statutes, which were substituted for them, and were intended to replace them, with such modifications as were intended to be made by that revision. There was no moment in which the repealing act stood in force without being replaced by the corresponding provisions of the revised statutes. In practical operation and effect, therefore, they are rather to be considered as a continuance and modification of old laws, than as an abrogation of those old, and the re-enactment of new ones. In order to construe them correctly, we must take the whole of the revised statutes, together with the act of amendment and the repealing act, and consider them in reference to the known purposes which the Legislature had in view in making the revision.”

There are decisions of this court which seem to assert a doctrine different from that we have here adopted — the cases of State v. King, 12 An. 593; State v. Morgan, 12 An. 712; and State v. O’Connor, 13 An. 486. But of all these cases, it may be remarked, that they do not involve the question of revisory legislation, its intention and effect. The two last are based on the first, and in the first, one member of the court, at least, recognized this distinction, and stated it as one of the reasons of his concurrence. We do not think these decisions affect, or were intended to affect, those before quoted. i

For the reasons given, it is ordered that the judgment appealed from bo affirmed, with costs.

Lodeling, C. J.,

concurring. Judge Martin correctly states the law hi the case of the State v. Johnson, 12 La. 552, thus: “When an act, creating an offense, is repealed, even after judgment in the inferior court, the judgment must be reversed, if it has not been affirmed before the repeal. The reason is, that a legislative pardon is presumed to have been intended.'1

In the cases of the State v. King, and the State v. Kiltz, this principle of jurisprudence was recognized; and in these cases the court hold that the repeal of a penal statute, pending a prosecution under it, without a saving clause, puts an end to the prosecution, although the penal statute may, in the same act, be substantially re-enacted.

To the latter proposition I can not give my assent. The reason of the rule is stated by Judge Martin; it is, because a legislative pardon is presumed to have been intended. When the intention of the Legislature is manifested to the contrary, by the express terms of the statute, there can be no room for presumptions. And this is admitted by all, to be true, when this intention is shown by “a saving clause” in the act.

I think, if the intention of the lawmakers not to abrogate the old law, be clearly manifested in tlio act, in whatever mode it may be done, it will be equally efficacious in preserving the life or vitality of the law. In this case, that intention is clearly manifested by the re-enactment of the whole law — it is the same now that it was when the accused was tried and convicted in tho district court; and, at no time since the commission of the offense, has it been different.

The repealing clause was not intended, and can not fairly or reasonably be held, to apply to laws re-enacted in the statute of 1870. AÍ1 laws, not contained in the statute, on the same subject matter, are abrogated; but, nothing contained in the body of the statute itself is destioyed. In the ease of Stafford v. His Creditors, Mr. Justice Lea, as the organ of the court, said:

“In the case of the State, ex rel. Holmes, v. Wiltz, we lately held, that the repealing clause appended to the revisory acts of 1855, did not repeal such pre-existing statutory provisions as were re-enacted in the revisory statute.” 11 An. 470; 11 An. 439; 14 An. 840.

And, in Wright v. Oakley, 5 Metcalf 406, Mr. Chief Justice Shaw said: “In construing the revised statutes, and the connected acts oí amendment and repeal, it is necessary to observe great caution to avoid giving an effect to these acts which was never contemplated by the Legislature. In terms, tho whole body of the statute law was repealed; but these repeals went into operation simultaneously with the revised statutes, which wore substituted for them, and were intended to replace them, with such modifications as were intended to be made by that revision. Thero was no moment in which the repealing act stood in force, without being replaced by the corresponding provisions of the revised statutes. In practical operation and effect, therefore, they are rather to be considered as a continuance and a modification of old laws, than as an abrogation of those old, and the re-enactment of the new ones.” 2 Wallace, 458.

In interpreting laws, courts should, if possible, construe them so as to avoid making them absurd or mischievous. I do not conceive that tho act of 1870 repealed the statute under which the accused was indicted; it continued the operation and effect of the old law. 21 An. 482, State v. Kreider.

For these reasons, I concur in the decree rendered by Mr. Justice Howe.

Rehearing refused.


text:
    No. 2678.
    Mary Frances Taylor et al. v. Henry A. Ealer.
    The mortgage allowed bylaw, prior to the adoption of the constitution of 1868, on the property of tutors to secure the minor against an improper disposition of his estate during minority, can only be preserved by the registry of the bond cf the tutor in the mortgage office, or by the registry of an abstract of the inventory, certified to by the cleric of the court of tho parish where the succession is opened. This record must have been made prior to the first of January, 1870. Article 123 constitution of 1838; act of eighth of March, 1869, sections 10 and 11.
    The institution of suit on the tacit mortgage prior to the first of January, 1870, does not dispense with the inscription required by the act of 1869. The legal mortgage can only be preserved on the property cf the tutor by registry in the mortgage office in the manner and in accordance with the forms prescribed by the act of March 8, 1809, sec. 10 and 11.
    APPEAL from Fifth District Court, parish of East Feliciana. Posey, J.

      Dupree & Wedtje, for plaintiff and appellant. Kerman <& Lyons, for defendant and appellee.
   Ludeling, C. J.

The plaintiff is proceeding against a third possessor to enforce a tacit mortgage against certain immovable property, formerly belonging to lier mother and tutrix.

The claim is evidenced by a judgment of twenty-six thousand eight hundred and sixty-three dollars and fifty cents, obtained by Mrs. Taylor against her mother and tutrix, in the Second District Court of tho parish of Orleans, on August 12, 1869. The judgment was recorded in the general mortgage book for tho parish of East Feliciana, on the twenty-second of September, 1869.

This suit was filed on the eleventh of October, 1869. On tlie first day of February, 1870, the defendant filed an exception, alleging that the tacit mortgage (if any ever existed) had not been duly recorded prior to the first of January, 1870; that it had ceased to have effect as to the defendant, and praying for the dismissal of the action.

Tiie exception was sustained. The plaintiff has appealed.

The only effort made to register the alleged tacit mortgage, was the recordation of the judgment obtained in the Second District Court of the parish of Orleans, above mentioned.

Was this sufficient to preserve the tacit mortgage against the property of the defendant ?

The plaintiff contends that it is a substantial compliance with the requirements of the act of eighth of March, 1869.

The defendant, on the other hand, insists that tho act of eighth of March, 1869, provides only two modes of registering a minor’s mortgage against Ms tutor, by the registry of tho bond, when tho tutor is required to give one; and by the registry of a certificate or abstract, by tbe clerk of the district court of the amount of the property of the minor, according to the inventory on file in his office. Sections 2 and 11.

It is clear that the plaintiff has not caused to be recorded the tacit mortgage in the manner pointed out iu sections ten or eleven of the act ni 1869. It is not necessary, in this case, to decide whether or not the recording of a judgment, which recognizes a tacit mortgage, and fixes the amount and date thereof, would be a compliance with the requirements of the constitution and of the acts of 1869, because the judgment recorded in this case is not such a judgment; it does not mention the date of the mortgage; it is in the words following: “It is, therefore, ordered and decreed that the plaintiff, Mrs. Mary Frances Taylor, wife of Frank Wheaton, do recover from Mrs. Louisa Jane Nolan, as her natural tutrix, with privilege and mortgage resulting from said tutorship, the sum of twenty-six thousand eight hundred and sixty-three dollars and fifty cents, the said sum having been received by the tutrix for account of the plaintiff, with legal interest from judicial demand, and costs.” It is manifest that the registry of this jrrdgment did not inform the public at what period the tacit mortgage attached to the property of the tutrix. The plaintiff refers to the case of Drake v. Drake, 7 An. 546, to support the position that the amount of the mortgage having been fixed by the payment, the date can be ascertained aliunde.

The case of Drake «. Drake, simply announces that the minor’s right to a legal mortgage having been recognized, the date thereof was established by law. There was no question of registry in that case, for it was not essential then to record the minor’s legal mortgages. C. C. 3333. In Ford v. Ford, 7 An. 535, the same court said: “We aro not aware that we have ever sustained an inscription which was not in itself complete; and we fear that if we should depart from a reasonable exactness in such matters, and permit defective inscriptions to be eked out by evidence aliuncle, the salutary law of registry would soon lapse into uncertainty and confusion.” 4 R. 7; 2 An. 112, 610; 21 An. 204. So far as third persons are concerned the inscription is, in fact, the mortgage. C. C. 3314. Constitution of 1868, art. 123.

By the operation of the constitution and the act of 1869, the tacit mortgage may be preserved, if recorded, before the first day of January, 1870, in the manner directed by the law. A failure to inscribe it is fatal. The inscription was within the power of the plaintiff, whoso interest it was to make it; and she has no just ground of complaint, if, through negligence or ignorance, she has failed to preserve a preference conferred on her by law, in derogation of common right.

The institution of this suit before 1870 did not dispense with the inscription required bylaw. Hyde v. Bennett, et al., 2 An. 799; 520, 100; 6 An, 321; 16 An. 280.

We think the exception was properly sustained.

It is therefore ordered and adjudged that the judgment of the district court be affirmed, with costs of appeal.

Rehearing refused.