text:
    No. 2435
    Second Circuit
    GIRLINGHOUSE v. ZWAHLEN
    (February 8, 1926, Opinion and Decree)
    (March 11, 1926, Rehearing Refused)

      (Syllabus by the Editor.)
    1. Louisiana Digest — Arrest—Par. 16; False Arrest—Par. 1.
    Where one does not willingly submit himself to the orders and control of another, hut does so in fear of the consequences which would follow a refusal to submit, which fear was reasonably well grounded by the conduct of the other, he is under arrest.
    2. Louisiana Digest —Arrest—Par. 21; False Arrest—Par. 3.
    The law does not permit a private citizen to deprive another óf his liberty without a warrant when the person arrested is engaged in an act which could constitute at most an element of a misdemeanor.
    3. Louisiana Digest—False Arrest—Par. 10; Appeal—Par. 625, 630.
    The quantum of damages allowed by the trial court for illegal arrest where clearly excessive are reduced.
    4. Louisiana Digest—False Arrest—Par. 7.
    Because an officer makes an illegal arrest at the complaint of another party, the other party cannot be held responsible in damages therefor.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. Leven L. Hooe, Judge.
    Action by Jesse T. Girlinghouse vs. Sam E. Zwahlen for damages for false arrest.
    A reconventional demand was filed.
    There was judgment for plaintiff rejecting the reconventional demand and defendant appealed.
    Judgment amended and affirmed.
    Peterpian, Dear & Peterman, of Alexandria, attorneys for plaintiff, appellee.
    Overton & Hunter, of Alexandria, attorneys for defendant, appellant.
   WEBB, J.

In this cause the plaintiff, Jesse T. Girlinghouse, seeks to recover judgment against defendant, Sam E. Zwahlen, in the sum of two thousand dollars, damages alleged to have been sustained by him, resulting from an alleged false arrest, assault and false imprisonment, committed against him by the defendant on August 26, 1924, and defendant, by reconventional demand, claims a like amount of plaintiff for an alleged illegal arrest and false imprisonment on the same date, alleged to have been brought about by the plaintiff in making an affidavit against defendant charging him with impersonating an officer.

The district court rendered judgment in favor of plaintiff for two hundred and fifty dollars, and rejected defendant’s re-conventional demand.

The defendant appealed, and plaintiff answered the appeal, asking that the judgment in his favor be amended so as to allow him a greater amount, and otherwise affirmed.

PLAINTIFF’S CASE

The questions presented for decision under the pleadings and evidence are:

1st. Was plaintiff arrested, assaulted and imprisoned by defendant?

2nd. If he was arrested and imprisoned, were the arrest and imprisonment illegal?

3rd. If the arrest and imprisonment were illegal, was there probable cause?

4th. The quantum of damages, if any.

Considering the evidence as it relates to the first and second questions, we find:

That the defendant, who was not an officer, lives in the city of Alexandria, and that he owns a tract of land which is not posted near Camp Beauregard, from which he knew someone was taking gravel; that on the morning of August 26, 1924, he drove out to his place in a Ford car, taking with him a revolver, for the purpose of apprehending the person who was taking the gravel, and finding plaintiff on the property with a truck, which he was loading with gravel, defendant, without a warrant, but with a show of authority, by placing his hand upon the revolver which he carried upon his person, informed him that he was going to take him to the sheriff’s office at Alexandria; following which he ordered plaintiff to get into his (defendant’s) automobile, thence took the road to Alexandria, ordering plaintiff to get out of the car on the way and ordering him back into the car, taking him by the arm, and thence to Alexandria to the sheriff’s office, where he had him remain until the sheriff came.

That plaintiff did not willingly submit himself to defendant’s orders -and control, but did so in fear of the consequences which would follow a refusal to submit, .which fear was reasonably well grounded by the conduct of defendant.

We are of the opinion that the facts show that defendant arrested plaintiff within the meaning of the law.

“An arrest is the seizing or detaining of the person of another by an act which indicates an intention to take him into custody, and which subjects the person arrested to the actual control of the person making the arrest.”

Ruling Case Law, vol. 2, pg. 449.

Considering the above finding of facts and conclusion, and assuming that the act of plaintiff would have constituted one of the elements of ap offense under the laws of this state, the questions as to whether the arrest was legal, and, if not, was there probable cause, are presented.

The defendant does not contend that the act of plaintiff could have been one of the elements of a felony under any statute of this state, but he argues that as the law clearly gives a right to the private citizen to arrest without a warrant in instances when a felony has been committed, that the same right should be given to one when he finds another injuring or appropriating his property, even though such act could only be an element of a misdemeanor. He cites no authority and we do not find any.

We are of the opinion that the right of the defendant to protect his property is offender.

Unquestionably, one who finds another very different from his right to arrest the injuring his property or appropriating it has, as an accessory of his ownership, the right to prevent such acts, using such force as may be reasonably necessary, and, if necesary, he could go so far as to detain the offender.

The defendant did not request plaintiff to unload the gravel, nor was his detention of plaintiff necessary for the purpose of preventing plaintiff from removing the gravel.

Arrest is a preliminary to a prosecution; it for the time being deprives the person arrested of his liberty; and the law does not permit a private citizen to deprive another of his liberty without a warrant when the person arrested is engaged in an act which could constitute at most an element of a misdemeanor.

Golibert vs. Sullivan, 66 N. E. 88; also Dunson vs. Baker, 144 La. 167, 80 South. 238.

We find that the arrest was illegal for the reasons stated, and conceding that the defendant may have thought that the plaintiff was removing the gravel, with consciousness of moral wrong, can this be pleaded as a defense to the action in damages?

We are of opinion that probable cause relates to a defense in those cases where the person making the arrest has reasonable grounds to assume that the person arrested has committed an offense for which he would have authority to make an arrest without warrant, but that it cannot be a defense where the person making the arrest without warrant would not be authorized to make the arrest even though the offense assumed had been or was in course of .being committed.

• As to the charges of assault ánd false imprisonment, it follows, the arrest being illegal, that any assault committed against or imprisonment of the person arrested, by the defendant would be illegal; but as we do not find that any actual physical injury was suffered by the plaintiff, and as the assault consisted merely in defendant taking plaintiff by the arm, and that the imprisonment which may have resulted from restraint of the person of plaintiff has been considered in determining whether or not there was an arrest, we are of the opinion that the matters may be properly considered on the question relating to the amount of damages.

The plaintiff contends that two hundred and fifty dolars is inadequate; citing Lange vs. Ill. Cent. R. R. Co., 107 La. 683, 31 South. 1003, where one thousand dollars was allowed in a case of malicious prosecution, while defendant claims that the allowance was too great, citing Pearson vs. Great Sou. Lumber Co., 134 La. 118, 63 South. 759, a case of false imprisonment where one hundred dollars was allowed; and Hunter vs. Laurent, 158 La. 278, 104 South. 747, where two hundred dollars .was allowed in case of false imprisonment, in which the evidence established that the defendant had been incarcerated for several hours.

The rule is, of course, that the damages allowed should be compensatory, and in keeping with amounts allowed in analogous cases, but at last the question is entirely dependent upon the facts in each case.

Had the plaintiff been consciously guilty of moral wrong in going, upon the defendant’s property (which we think the evidence completely negatives) the amount allowed would be excessive; but the evidence showing that he had obtained authority from one whom he thought was authorized, and that he had an excellent reputation in the community, we can appreciate the contention that the allowance could not compensate him for the humiliation suffered.

On the other hand, it must be conceded that defendant’s right in the immovable property was absolute, and that plaintiff, as the result, has demonstrated, was indiscreet in going upon the property, with the consent of one who claimed to be the representative of defendant, but who is not shown to have had written authority.

The plaintiff is not, therefore, in the position to claim the amount of damages as might be the case where one is illegally taken into custody by a private person without warrant.

We are of the opinion that the amount of damages allowed plaintiff should be reduced to one hundred dollars.

DEFENDANT’S CASE

The evidence shows that immediately following plaintiff’s release he made an affidavit charging defendant with having "impersonating an officer” and with "carrying concealed weapons”, upon which a warrant was issued and placed in the hands of the sheriff who telephoned defendant and had him come in to the sheriff’s office and give bond.

Subsequently the defendant was tried on the charge of carrying concealed weapons and pled guilty and was fined.

The defendant’s claim for damages is based upon the plaintiff’s having charged him with “impersonating an officer”, an offense unknown to our law.

The magistrate should not have issued the warrant for the arrest insofar as the charge of impersonating an officer was concerned. (Pillifugue vs. Judice, 134 La. 790). And plaintiff cannot be held responsible for the mistake of the officer.

We find that the judgment properly rejected defendant’s reconventional demand.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by reducing the judgment in favor of plaintiff to one hundred dollars with legal interest from judicical demand, and as thus amended the judgment be affirmed.

Plaintiff to pay the costs of appeal.


source: Caselaw Access Project

author: WEBB, J.

license: Public Domain

text:
    No. 2087.
    Second Circuit.
    BRINKERHOFF v. RUSS, ET AL.
    (March 11, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    ON MOTION TO DISSOLVE
    1. Louisiana Digest—Attachment—Par. 48.
    In an attachment under Article 242 of the Code of Practice where the amount claimed in the petition is based upon the assumption that the value of portion of the tract from which the plaintiff was evicted was proportionately equal to the value of the whole was a sufficiently certain basis to fix the amount of the debt.
    2. Louisiana Digest—Attachment—Par. 3, 69.
    In an attachment under Article 240 of the Code of Practice, if the sheriff was authorized to take possession of the defendants’ property under the writ, it would make no material difference as to what name was given to his act so long as it could be determined by references to the proceedings in the suit under which the officer was authorized to seize the defendant’s property would determine. the nature of the act of writ.
    ON THE MERITS
    3. Louisiana Digest—Evidence—Par. 58, 59.
    The burden of proof is on the defendants to show that the value of the land from which plaintiffs were evicted was less than, would appear from a comparison of the acreage sold with the price paid.
    4. Louisiana Digest—Appeal—Par. 625.
    The finding of the trial court as to the value of land, a matter of fact, being eminently correct, is affirmed.
    Appeal from the Eleventh Judicial District Court of Louisiana, Parish of Red River. Hon. J. W. Jones, Jr., Judge.
    Action in warranty by Z. K. Brinkerhoff against 'Mrs. Ella C. Russ, et al., and writ of attachment.
    Curator ad hoc appointed to represent the absentees.
    Judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    A. P. Garland and C. H. Blish, of Shreveport, attorneys for plaintiff, appellee.
    Nettles & Bethard and Stephens & Cagle, of Coushatta, attorneys for defendants, appellants.
   WEBB, J.

This is an action in warranty in which the plaintiff asks to recover judgment against defendants for the value of a part of a plantation purchased by plaintiff and from which he was evicted.

The plaintiff alleges the purchase of the property, which contained 706.8 acres, and •the eviction from 80 acres; that the total consideration paid for the entire tract was eight thousand dollars, or an average price of eleven dollars per acre, and that the defendants were indebted unto him in the sum of nine hundred and four and 80-100 dollars, the value of the tract from which he was evicted.

He further alleged that the defendants were non-residents and prayed for an attachment to issue against them, and for service to be made upon a curator ad hoc to be appointed to represent the absentees.

An order was obtained for. the issuance of the writ and for the appointment of a curator ad hoc to represent the defendants, and following proper service was made, and the sheriff seized property belonging to the defendants within the jurisdiction of the court under process reading as follows:

“No. 4707.
“In Eleventh District Court.
“Red River Parish, La.
“Zach K. Brinkerhoff vs. Mrs. Ella C. Russ, Et Al.
"The State of Louisiana.
“To W. H. Elliott, the Sheriff of the Parish of Red River, Greeting:
“Whereas due proof has been made by Zach K. Brinkerhoff that Mrs. Ella C. Russ,.' W. B. Russ, Mary. Alma John, Ella C. Light, A. M. Russ, Leon F. Russ, Carlton C. Russ and Semp Russ is indebted unto said Zach K. Brinkerhoff in the sum of nine hundred and four and 80-100 dollars (8904.80) with legal interest thereon from judicial demand Until paid, and that the said Mrs. Ella C. Russ, et al., has mortgaged, assigned or disposed of or is about to mortgage, assign or dispose of their property, rights and credits, or some part thereof, with intent to defraud their creditors, or give an unfair preference to some of them, and that they have converted, or are about to convert, their property into money or evidences of debt with intent to place it beyond the reach of their creditors.
“Now, therefore, you are hereby commanded to seize and take into your possession the lands, tenements, goods, chattels, moneys, effects and credits of the said Mrs. Ella C. Russ, W. B. Russ, Mary Alma John, Ella C. Light, A. M. Russ, Leon F. Russ, Carlton C. Russ and Semp Russ, if any you find in said parish, to the .amount of what will suffice to discharge the said debt and cost of the said suit; and that you give notice of this proceeding, and make return of this writ, stating the manner in which you have executed the same before our said court, on the first day of our next term thereof.
“Witness the Honorable Jas. W. Jones, Jr., judge of our said court, this 19th day of January, 1922.
(Signed) “J. M. SGULL,
“Clerk Eleventh District Court.”

On which writ the following return was made.

“Received this original, together with a certified copy on the 19th day of January and on the 23rd day of January, 1922, executed same by seizing and taking into my official possession the following described property, to-wit: West half (W%), Section 21, Township 12, Range 10, of Red River Parish, Louisiana. I also served notice of seizure on Henry Bethard, curator ad hoc for Mrs. Ella G. Russ, et al., in person on January 25, 1922.
(Signed) “C. R. MATTHEWS,
“Deputy Sheriff.”

Sheriff’s cost:

Executing writ of attachment________________$2.00

Mileage, 4 @ .07 ________________________________________ .28

Notice of seizure ___________________________________ .50

$2.78

The defendants, through their attorneys, by motion and amendments thereto, moved to dissolve the attachment on the following grounds:

1.That plaintiff in the petition by which he obtained the writ of attachment herein contained did not demand of exceptors a certain and specific. sum of money or evidence of money equivalent thereto, nor did he state clearly and concisely that exceptors were indebted unto him in any amount, but. merely averred in paragraph “V” of his petition that he was entitled to recover of your exceptors, and each of them, the aggregate sum of $904.80, and did thereby only disclose a mere cause of action and not an absolute and certain debt as required for the issuance of attachments by Article 242 of the Code of Practice of Louisiana.

2. Further, that the proper time for plaintiff to have proceeded as he has done in this instance was at the institution of the suit * * * by which plaintiff claims he was evicted, and that by not calling exceptors in warranty plaintiff has not been vigilant, but negligent, and thereby his cause of action has been reduced to a mere personal demand for an uncertainty.

3. That the reasons and facts set forth in the so-called writ of attachment herein issued and under which said property was seized is untrue, unfounded in fact and law, and that the said writ of attachment should be dissolved.

4. That the pretended writ of attachment issued herein is null, void and without effect for the reason that the verbiage, allegations and statements therein recited and made do not show it to be a writ of attachment, and further, that no designation whatever in the said pretended writ is made to set apart and designate it as a writ of attachment or sufficient to give the sheriff authority to attach the property herein, and that any purported attachment of the property herein was made and done without authority and for no specific purpose and under no specific writ or process of law.

The defendants prayed for damages, attorney’s fees, in their motions to dissolve.

The motions were referred to the merits by the court without objection by the defendants, and following the defendants, reserving all rights in their motions to dissolve, answered, alleging that the property was not sold on an acreage basis but for a lump sum, and that the portion of the tract from which the plaintiff was evicted was of comparatively little value as compared to the balance of the tract, and that it was not worth anything approximating the amount claimed by plaintiff.

The judgment of the district0 court was in favor of the plaintiff, granting him judgment for four hundred dollars, maintaining the writ of attachment with recognition of privilege and ordering the property sold, and defendants appealed.

OPINION

MOTION TO DISSOLVE

The defendants urge in this court the motions to dissolve and that the judgment was excessive.

Considering the grounds on which the motions to dissolve were made in their order:

(1) Article 242, Code of Practice, provides that “the property of a debtor may be attached * * * in order to secure the payment of a debt, whatever may be its nature, whether amount be liquidated or not, provided the creditor * * * who prays for the attachment state expressly and positively the amount which he claims”, and it certainly cannot be said that the plaintiff has failed to state the ' amount claimed by him to be due.

While it is true that the amount claimed to be due is shown by the petition to be based upon the assumption that the value of the portion' of the tract from which plaintiff was evicted was proportionately equal to the value of the whole, yet the assumption is based on the law (Lockwood Oil Company vs. Atkins, 158 La. 612, 104 South. 386, and authorities cited), and we think that this was a sufficiently certain basis to fix the amount of the debt (Singer Mfg. Co. vs. Johnson, 134 La. 590, 64 South. 479).

(2) This appears to be based upon the same reasons as the first insofar as it may relate to the attachment, and is not urged on the merits.

(3 and 4). The grounds for the dissolution of the attachment set out here are based upon verbiage of the order issued to the sheriff under which he took into his possession the property of the defendants, the court’s attention being especially directed to the fact that the writ does not designate the order, warrant or writ as a “writ of attachment” and that the causes for issuance of the writ are those set forth in paragraphs four and five of Article 240, C. P., and not the “non-residence of defendants”, as alleged in the petition.

The defendants urge that the writ not being designated “writ of attachment” and not directing the sheriff to “attach” and the allegations contained in the writ being untrue, that the attachment fell, citing Corpus Juris, vol. 6, page 189, the following:

“A material variance between the writ, affidavit and pleadings, either as to the grounds, cause of action or description of the property, is fatal if the objection is raised.”

' The defendants having appeared in person, no question can be raised as to the jurisdiction of the court. (Mountz vs. Dyer, 158 La. 383, 104 South. 123; Dawson vs. Frazier, 150 La. 210, 90 South. 570; Elder & Davis vs. Ludeling, 50 La. Ann. 1077, 23 South. 929; and conceding that the objections were not also waived, it appears that they should be viewed as if made in an incidental attachment.

Our law does not provide the form in which the writ of attachment shall be drawn, as it may in some other jurisdictions, and it has been said, “it is dangerous to employ analogies drawn from the systerns of tlie other states in the construction of our attachment laws * * * except with the greatest caution and after thorough examination of their most remote consequences”. (Cross, Pleading, page 177.)

If the sheriff was authorized to take possession of the defendants’ property under the writ, we do not think that it would make any material difference as to what name was given to his act, or if the question of determining whether he “attached” should be material, we think that it could be determined by reference to the proceedings in the suit under which the officer was authorized to seize the defendants’ property; there is no question as to the officer having taken possession of the property, and we do not think that the failure of the clerk who issued the writ to name it or to correctly state the grounds upon which the court had granted the order for the issuance of the writ' invalidated the seizure.

As to the plaintiff, the writ of attach-, ment issued by the clerk was certainly no part of the pleadings; in a manner he had nothing whatever to do with it further than to prove on the date of the trial that the property of the defendants was under the control of the court through its officer.

MERITS

On the merits, as to the value of the land from' which the plaintiff was evicted, as compared to the value of the entire tract purchased by him, and fixed by the price paid at that time, the evidence submitted by the defendants tends to show that it had very little comparative value or a value not above two and 50-100 dollars per acre, while the evidence of the plaintiff tends to show that it was worth about eleven dollars per acre.

The evidence shows that the tract contained several hundred acres, consisting of approximately four hundred acres in cultivation and the balance in woodland and alluvion, the latter being referred to as sand-bar.

The land appears to be alluvial; the burden of proof was upon defendants to show its value, if less than that which would appear from a comparison of the acreage sold with the price paid, and we are of the opinion that under the evidence the value of five dollars per acre placed upon the property by the court was not too great.

The judgment is affirmed.


text:
    No. 2520.
    Second Circuit.
    HANLEY v. ANTHONY.
    (March 11, 1926. Opinion and Decree)
    (April 1, 1926. Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Automobiles — Par. 4 (c).
    Where one driving an automobile at a moderate rate of speed between street intersections hits a child who runs directly in front of the automobile, she will not be held liable for damages, as she could not have avoided striking the child by the use of all proper precautions.
    Appeal from the Thirteenth Judicial District Court of Louisiana, Parish of Rapides, Hon. R. C. Culpepper, Judge.
    Action by Laurence T. Hanley, appearing individually and as representative of his minor child, Marguerite Hanley, against Mary A. Anthony, for damages for physical injuries sustained by' Marguerite Hanley.
    There was judgment for defendant, and plaintiff appealed.
    Judgment affirmed.
    B. T. Dawkins and Lamar Polk, of Alexandria, attorneys for plaintiff, appellant.
    K. M. Hundley and T. A. Carter, of Alexandria, attorneys for defendant, appellee.
   WEBB, J.

The plaintiff, L. T. Hanley, appearing individually and as the representative of his minor child, Marguerite Hanley, brings this action against Marguerite Jordan and Mary A. Anthony to recover damages resulting from injuries sustained by the child, and obligations incurred by the plaintiff, such as hospital and physician’s fees, resulting from the injuries, following the child being struck by an automobile driven by Miss Jordan, major daughter of Mrs. Anthony, who was the owner of the car.

The accident occurred in the city of Alexandria on Third Street, which is thirty-three feet, seven inches in width;''this street, (which for the purpose of this statement is considered as running north and south) is intersected at right angles by Fulton and Casson Streets, the latter being one block south of Fulton.

At the time of the accident there were parked on the left (south) side of Third Street two large motor vehicles, one an “International Bus” and the other a “G. M. C. Truck.” These vehicles were in front of a building known as the Interurban Building. They were parked fronting to the. north, the bus being next to the intersection of Third and Fulton streets, and the truck to the rear of the bus at an approximate distance of two feet. Below the Interurban Building, on the same side of the street, and north of Casson Street, there was a building known as the market.

On the morning of the accident, Mrs. L. T. Hanley, who resided on Fulton Street, west of Third Street, sent her daughter Marguerite (who was past seven years of age) to the market, located as above, and when the child (presumably returning from the market) reached a point on the sidewalk near the Interurban Building, a small boy came from a nearby building and threatened her, and she, in haste, to escape from the boy, ran, and while running over Third Street was struck by an automobile which was being driven south by Miss Jordan.

The theory of plaintiff’s case, as reflected by the pleadings, and the evidence, is that Marguerite Hanley came upon the roadway of the street at the intersection of Third and Fulton Streets and had proceeded along the intersection over that part used by pedestrians -until she had reached a point beyond the center of the street, when she was struck by the automobile; and the collision is attributed to the fault of Miss Jordan, the driver of the automobile, who is alleged to have been driving at a reckless rate of speed, and to have failed to maintain a proper lookout; while the theory of the defense is that Marguerite Hanley came upon the roadway of the street south of the intersection of Third and Fulton streets at a point between the International bus and the G. M. C. truck (a distance of approximately twenty or thirty feet below the intersection) and thence ran over the street from that point until she reached a point on the right (south) of the center of the street, where she was struck by the automobile; and the accident is attributed by defendants to the suddenness of the appearance of the child upon the street and the almost instantaneous collision, it being denied that Miss Jordan was driving at a reckless rate of speed or that she was not maintaining a proper lookout, and alleged that she did all in her power to stop the car the moment she ascertained the situation of the child.

The judgment of the 'District Court rejected the plaintiff’s demands, and he appeals.

OPINION.

The preponderance of the evidence establishes that Miss Jordan was driving at a rate of speed approximated from ten to fifteen miles' per hour (which is not shown to have been excessive, ■ having regard to the law and the place), and that the view of one in an automobile going south along Third Street when approaching the intersection of the sidewalk between the Interurban Building and the motor vehicles would be obstructed by the latter; that the car driven by Miss Jordan was to the right (south) of the center of Third Street at the time the child was struck, and that the child ran over the street and was running at the time of the collision;' that as soon as Miss Jordan noted the situation she applied the brakes and that the car was stopped at a point below the intersection, at a distance estimated from twenty to thirty feet, at„ which point, the child was taken up from the pavement, where she lay underneath the bumper of the car, from which she had fallen when the car had stopped, at a point below the intersection, states that she did not see the child until practically the moment of collision.

Other facts which we deem to be material relate to the point at which the child came upon the street (whether at the intersection or below) and the position of the car at that time.

As to the first, the testimony is in conflict, and the other was practically ignored.

The parties seem to have recognized that the law makes a distinction between the degree of care which the drivers of automobiles on the streets must exercise at street intersections and between such points, and to have tried the case with this distinction in view, and with the realization of the conflict between their respective theories, and that the court, adopting either, would have to ignore practically all of the testimony in support of the other, and we are informed by counsel for plaintiff that the District Court adopted the theory of defendant, and based» its judgment on the facts found to support that theory.

The plaintiff contends that the District Court was in error as to its finding of fact, but that even under the finding of fact, as established by the defendant, it appears the defendant was liable under the doctrine of the last clear chance; this latter position being based upon the evidence of the witnesses for defendant, who were of the opinion that the car ■ was stopped within a foot or two after the application of the brakes, and that had the defendant noted the situation of the child at the moment she came upon the street, at some other instant, the car could have been stopped and the collision avoided.

We do not find from our review of the testimony of the witnesses that there is such conflict with itself or that they have made statements so inherently improbable as would indicate that they were intentionally stating facts known to them to be untrue. While the testimony of some of the witnesses does show lack of attention and discrepancies which affect the weight of their testimony, but if we consider these matters, affecting the weight of the testimony, and weigh the whole of the evidence in support of the respective contentions of the parties against the other, we cannot say that the balance would be in favor of the plaintiff, but, on the contrary, that it rather supports the version of the defen-, dants, especially as to the physical facts which were established by the preponderance of the evidence, and in such case we are bound to follow the finding of fact made by the District Court.

In support of the contention that the defendant is liable under the doctrine of the last clear chance, the plaintiff cites Burvant vs. Wolf, 126 La. 787, 52 South. 1025, in which the court said:

“Even if a boy, who, in the middle of the block, stepped into the street when four feet from the curb, was struck by an automobile coming from the rear, was negligent, the driver of the machine, who did not see the boy, having his attention on the crowd ahead, was' liable under the last clear chance doctrine, for had he been looking, as it was his duty, he would have seen the boy and realized that the boy was unaware of the danger; and this, though possibly even then it would 'have been too late to have stopped, or sufficiently changed _ the direction of the machine so as to avoid a collision."

In the case cited, the driver of the automobile was on the wrong side of the street, and the situation was such that one in the exercise of ordinary care, was bound to anticipate that persons would step from the sidewalk into the street, and we do not think the case is analogous to the facts upon which .plaintiff bases his right of recovery.

In many cases the court has said, in substance, that drivers of automobiles are not bound to anticipate the presence and use of the streets by pedestrians at points between intersections. (Mequet vs. Algiers Mfg. Co., 147 La. 364, 84 South. 904; Fernandez vs. Montz, 151 La. 299, 91 South. 742), and as the evidence shows the defendant to have been driving at a reasonable rate of speed, on the right side of the street, we are of the opinion she cannot be held bound to have anticipated the presence of the child, and in order to hold her guilty of negligence it is necessary that the evidence should show the relative positions of the child and the automobile to have been such that the defendant would be presumed to have failed to exercise ordinary care.

There is not any direct testimony in the record showing this situation, except the statement of one of the witnesses for the defendant, who seemed to be of the opinion that the distance between the automobile and the child when the latter first appeared upon the street was such that it was impossible to have stopped the automobile and to have avoided striking the child; and if we disregard this statement there is no other possible means of arriving at the situation.

While the accident was more regrettable by reason of the injury to the child, the degree of care which defendant was bound to exercise in so far as it relates to the observance of the road was the same, whether as to children or adults, and we are of the opinion that the evidence fails •to show that defendant was negligent, unless the negligence might be presumed from her admission that she did not see the child until almost the moment of collision.

The defendant testified that she was maintaining a lookout, and the evidence indicating that the time passing between the appearance of the child upon the street and the collision was barely appreciable, we are of the opinion that we cannot by reason of the admission presume that the defendant was negligent.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed.


author: REYNOLDS, J.

text:
    No. 2449.
    Second Circuit.
    MOORE v. LOUISIANA & ARKANSAS RAILWAY COMPANY.
    (April 10, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Appeal—Par. 625, 628.
    A finding of fact by a jury in favor of a railroad company and against a private citizen, approved by the trial judge, who refused a new trial, will not be disturbed by the Court of Appeal unless clearly erroneous.
    Jahncke Service, Inc., vs. Hewson, 1 La. App. 22.
    Irwin & Co. vs. Warner & Co., 1 La. App. 23.
    Elston, Prince and McDade vs. Economy Cash Store, 1 La. App. 36.
    Brenard Mfg. Co. vs. Allen, 1 La. App. 44.
    Keller vs. Jos. Reid Gas Engine Co., 1 La. App. 67.
    Miles vs. Reclamation Oil Producing Assn., 1 La. App. 94.
    Snell vs. Kearny & Sons, 1 La. App. 106.
    Bourgb vs. Hester, 1 La. App. 152.
    Brunswick-Balke-Collender Co. vs. Aitkens, 1 La. App. 217.
    Billaudeaux vs. Manuel, et al., 1 La. App. 219.
    People’s Bank & Trust Co. vs. Racca, 1 La. App. 222.
    Boutin vs. Bradley, 1 La. App. 260.
    Miller vs. Morgan’s La. & T. R. R. and S. S. Co., et al., 1 La. App. 267.
    Reliance Homestead Assn. vs. McMahon & Sons Undertaking Co., Inc., 1 La. App. 279.
    Bianchi vs. Mussaehi, 1 La. App. 291.
    Graham Paper Company vs. Lewis, 1 La. App. 317.
    2. Louisiana Digest—Evidence—Par. 54.
    Where one charges another with culpable omission of or breach of duty, he who makes the charge is bound to .prove it, even though it involves proving a negative.
    Leonce Laborde vs. La. Ry. & Nav. Co., 2 La. App. 331.
    State vs. Nicolosi, 128 La. 842, 55 South. 475.
    Yinton Oil & Sulphur Co. vs. Gray, 135 La. 1062, 66 South. 357.
    Frost-Johnson Lumber Co. vs. Sailings Heirs, 150 La. 763,' 91 South. 207.
    (Civil Code, Art. 2315. Editor’s Note.)
    Appeal from the Second Judicial District Court of Louisiana, Parish of Webster, Hon. John S. Richardson, Judge.
    Action by W. A. Moore against Louisiana & Arkansas Railway Co., for damages for personal injuries.
    Judgment for defendant.
    Plaintiff appealed.
    Judgment affirmed.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for plaintiff, appellant.
    White, Holloman and White, of Alexandria, attorneys for defendant, appellee.
    STATEMENT 0F THE CASE.
    Plaintiff sued to recover $26,900.00 damages for injuries alleged to have been sustained by him in falling from the steps of defendant’s train at Sarepta, Louisiana, on December 22, 1923.
    The defendant denied liability.
    The case was tried by a jury and there was judgment for the defendant rejecting plaintiff’s demand.
    A new trial having been applied for and denied, the plaintiff appealed.
   REYNOLDS, J.

OPINION.

Plaintiff says that he sprained his saero iliac joint in stepping from defendant’s train at Sarepta, Louisiana, on December 22, 1923.

Dr. J. B. Benton testified, pages 90, 93, that such a sprain would necessarily immediately cause excruciating pain.

“Q. Now, doctor, doesn’t it require a pretty severe blow to cause a dislocation of the sacro iliac joint or separation there ?
“A. It was held up a long while among the profession that you could not have a dislocation of the sacro iliac joint without fracture; it was hound together so tight, it was constructed in such a way, that it was practically impossible to dislocate it without a fracture of the hone.”
“Q. I say it would take some sudden tremendous blow or force to cause this separation, would it not?
“A.' Strong.
“Q. Yes.
“A. Yes, I am sure it would.
“Q. And just to cause a sprain would take considerable force or strain, would it not?
“A. It would take some force, no doubt.
“Q. Would it not take considerable?
“A. Yes.
“Q. Because otherwise everybody would have them, if just from an ordinary jar they could get one. ’That is correct, is it not?
“A. Yes, sir.
“Q. Now, when the sprain or separation occurs, is it not always accompanied with violent pain and suffering?
“A. Yes, sir.”

At the time plaintiff stepped from defendant train and is alleged to have suffered a sprain of the sacro iliac joint, there was no outcry by him whereby any of the train crew or passengers on the train or persons about the depot might have learned that he had suffered an injury. In fact, Mr. G-. R. Best, the auditor on the train, whose duty it was to assist passengers on and off the train, did not learn of the alleged accident until the filing of this suit, November 19, 1924, nearly a year afterward.

Immediately after plaintiff alighted from the train he was carried in an automobile by Mr. W. W. Dean to his (plaintiff’s) father’s house, about six miles distant, and during the trip he did not say a word about having received a sprain or other injury while alighting from the train. See evidence of Mr. Dean, pages 229 and 230.

“Q. Were you at Sarepta on the night of December 22, 1923, when Mr. Moore says he got off the train there?
“A. I was.
“Q. Did you hear any complaint or outcries when he got off?
“A. No. sir.
“Q. Who took Mr. Moore home?
“A. I did.
“Q. What did he say during the trip or while you were with him about having been hurt in a railroad accident or having been hurt while getting off the train?
' “A. He did not say anything to me about being hurt.
“Q. Did you hear him mention it at all?
“A. No, sir.
“Q. Hear him make any complaint at all?
“A. No, sir.
“Q.. Hear him say anything about falling when he got off the train?
“A. No, sir; I didn’t hear him say anything about falling. Of course, he was complaining some; he was sick.
“Q. Did you know that he had had an operation recently?
“A. I had heard it, yes, sir.
“Q. Did he say anything about there being no step box there and no one there to help him off the train?
“A. No, sir.
“Q. Did he say anything about having hurt his hip when he got off the train?
“A. No, sir.
“Q. Where did you take Mr. Moore?
“A. To his father’s.
“Q. Did you help him get out of the car?
“A. Yes, sir.
“Q. Who else, that you remember?
“A. I helped him out of the car and helped him in the house and put him to bed.
“Q. During that time did you hear him say anything about having slipped or fallen out of the train as he got off?
“A. He did not.”
Charles T. Deloach testified, page 211, et seq.:
“Q. Mr. Moore has testified that he slipped or fell when he got off that train. Were you looking at him as he got off?
“A. Yes, sir.
“Q. What have you to say as to his falling?
“A. Well, if he fell I didn’t detect it.
“Q. You did not see it?
“A. No, sir.
“Q. How close did he pass to you after he got off the train?
“A. Six or eight feet.
“Q. Did he say anything to you?
“A. No, sir.
“Q. What complaints, if any, did you hear him make?
“A. I don’t know that Mr. Moore knew that I was out there.
“Q. What complaints, if any, did you hear him make in regard' to having fallen?
"A. I never heard him make any.
“Q. What exclamations or outcries did he make when he fell and hurt himself so severely, as he said that he did?
“A. If he made any, I didn’t hear them.
“Q. How close were you to him?
“A. Prom six to eight feet; I don’t think he was closer to me than six feet.”

We cannot reconcile plaintiff’s silence on alighting from the train and afterwards as to having sprained his sacro iliac joint in alighting from the train with his contention here.

It is clear that he had sprained, fractured or displaced his sacro iliac joint at some previous time, for he had had three X-ray pictures made of his lower spine and hip bone and each of these pictures showed a slight widening of the sacro iliac joint. One of these radiographs was made on October 28, 1923—almost two months before the date on which the plaintiff claims his sacro iliac joint was sprained in alighting from the train.

Dr. S. G. Barrow testified, pages 3, 4 and 5:

“Q. How many X-rays have you made of Mr. Moore?
“A. We have examined him three times; the date just mentioned, then on January 25, 1924, and again on March 24, 1924.
“Q. Of what part of the body?
“A. That examination was made at the request of Dr. Benton. The examination made at that time was of his pelvis— that is, his lower spine and hip bones and all the bones in that section of the body.
“Q. Have you that picture?
“A. I have.
“Q. Just explain, doctor, what it discloses?
“A. The examination at that time is registered on plate number 12250 and our report read thus: Radiograph examination shows slight widening or separation of the sacro iliac line.”

We are unable to harmonize the fact of the widening or separation of plaintiff’s sacro iliac line on October 28, 1923, with his contention in this suit that he sprained his sacro iliac in stepping or falling from defendant’s train on December 22, 1928.

There are three hundred and fifteen pages of testimony in the record, but in our opinion it is not necessary for us to comment on all of it, for plaintiff in his petition alleges three acts of omission on the part of the defendant as the proximate cause of his alleged injuries.

That defendant negligently failed and omitted to have lighted its station and depot grounds at Sarepta, it being night and very dark when the train on which plaintiff was riding as a passenger arrived at said station.

That it negligently failed and omitted to assist plaintiff in alighting from said train, well knowing that he was ill and feeble.

That it negligently failed and omitted to provide and furnish a foot-stool or step box for plaintiff to use in alighting from said train.

The first ground of complaint, that defendant failed to have its station and depot grounds lighted, as an independent proposition, is not relevant to a decision of this case for the reason that plaintiff does not claim to have received his injury in the depot or on the depot grounds, but in stepping from the car. Hence the only question to be decided as to the lights is, whether or not defendant provided sufficient light at the step of the car to enable plaintiff to step from the car to the platform in safety.

The jury that tried the case evidently thought that the light that shone through the windows and vestibule of the car from which plaintiff alighted and from the car just in front of it together with the light from the lanterns of the auditor and brakeman was sufficient to enable plaintiff to see how to alight from the car with safety, and the evidence, we think, sustains this conclusion.

The second and third alleged acts of negligence may be considered together.

Besides his own testimony and that of his wife, plaintiff introduced that of Mr. and Mrs. O. S. Downer, Miss Argin .Herrick, Jewel Nations and Prank Slack, all of whom testified, in substance, that the auditor, Mr. G. R. Best, was not at the door of the passenger coach as the passengers alighted from defendant’s train at Sarepta on the night of December 22, 1923, no step-box for the passengers to step on as they stepped from the coach, and no lighted lanterns to enable passengers to guide their steps in alighting from the coach.

Defendant introduced S. G. Norton, the conductor, G. R. Best, the auditor, Robert Dowdle, brakeman of the train in question, and Clyde Smith and J. L. Smith, all of whom testified directly to the contrary.

We are convinced that the testimony of these five witnesses is true. We are also satisfied that the seven witnesses who testified for plaintiff were honest and believed the facts to be as testified to by them; but in the last analyses the question at issue was one of fact, and the jury who saw and heard the witnesses testify decided the case in favor of the defendant, and the District Judge, in refusing a new trial, approved their verdict. .

We have carefully read all the evidence in the case and the able and earnest brief of counsel for plaintiff, and are convinced that the preponderance of the evidence sustains the verdict of. the jury and the judgment of the court.

It .is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


author: CLAIBORNE, J.

text:
    No. 9806.
    Orleans
    WELSCH v. STANDARD OIL COMPANY, Appellant
    (March 1, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Automobiles—Par. 4, 4 (a), 4 (c).
    The owner of a truck who negligently collides with another automobile driving it against a person and thus injuring him is liable in damages.
    (Civil Code, Art. 2315. Editor’s Note.)
    Appeal from the Civil District Court for the Parish of Orleans, Division “C”, Hon. E. K. Skinner, Judge.

      Action, by Isadore Welsch against Standard Oil Company of Louisiana for damages for physical injuries.
    There was judgment for plaintiff, and defendant appealed.
    Judgment affirmed.
    Meyer and Mitchell, of New Orleans, attorneys for plaintiff, appellee.
    P. M. Milner, of New Orleans, attorney for defendant, appellant.
   OPINION.

CLAIBORNE, J.

This is a damage suit resulting from a collision of automobiles.

The plaintiff alleged that on May 11, 1923, at 5:30 p. m., he alighted from a street car at the intersection of Napoleon Avenue and Magnolia Street; that a truck owned by the defendant company, while crossing Napoleon Avenue at said intersection going down town, negligently ran into a Packard automobile running on Napoleon towards Washington Avenue, causing said automobile to swerve in the direction of the street car, which had stopped to permit the plaintiff to alight, causing said automobile to strike plaintiff forcibly and injuring the thumb of his right hand and other portions of his body, and spoiling his suit of clothes with oil and causing him to spend $20 for a doctor and $15 for an X-ray, and to suffer physical pain to the extent of $1,500.

The defendant denied any liability. It alleged that its driver was crossing the intersection of Napoleon Avenue at a very low speed; that a Packard automobile was running at a very high speed in the direction of the lake; that defendant’s driver, in order to avoid the Packard car, swerved his truck towards the lake just in front of a Clio Street car standing hear the intersection; that» the Packard car ran into the left front of the street car and into the right rear of defendant’s truck; that the injury suffered by the plaintiff was due to the fault of the Packard car.

There was judgment for plaintiff for $500, and defendant has appealed.

The facts of the case are as follows:

The plaintiff was driving up Magnolia Street in a Clio Street car. The car stopped on the down town side of Napoleon Avenue. Plaintiff got out with a bundle in his hand, from the front right hand door of the car, and turned and passed around in front of the car in the direction of the river. While still in front of the car, a Packard automobile was driving on the lower side of Napoleon Avenue, going towards the lake. When it reached the intersection of Magnolia Street, an automobile truck, belonging to the defendant, was running on the upper side of Napoleon Avenue in the direction of the river. When it reached Magnolia Street it turned to cross Napoleon Avenue going down town. It did so only partially, for before it had crossed it ran against the Packard automobile, which in its turn was shoved, and jammed the plaintiff against the street car, knocking the package out of his hand, injuring his hand, and otherwise bruised him.

The trial judge was of the opinion that the fault of the accident was attributable to the defendant, and we cannot say that he erred. „

The only question remaining is the character of the injury to plaintiff and the amount of the damage to which he may be entitled. They are thus stated by Dr. Daniel J. Murphy, who treated him.

Q. What was the exact -nature of the illness that you treated Mr. Welsch for?
A. Lacerations and contusions.
■Q. What part of his body, doctor?
A. Of both hands. The palm of the hand, lacerations and contusion of both knees, slight contusion of the forehead, and contusion of the thumb of the right hand.
Q. Doctor, what was the more serious injury?
A. The most serious injury was the contusion of the thumb. The others were minor.
Q. Were you the doctor that ordered an X-ray of the thumb to be taken?
A. .Yes, sir.
Q. How long did you treat Mr. Welsch?
A. In all, about a month.
At home I visited him from the 11th to the 16th of the month, and then he visited me at the office until the 6th of the following month, June.
Q. The injuries that Mr. Welsch was suffering from, were they very painful and cause inconvenience?
A. Yes, sir, they would cause inconvenience; they were' painful; * * * there was swelling, bruising, blackening, and the thumb in itself was decidedly purple; there were no marks left, no fracture, no dislocation, merely a sprain; the effect of the injury was the soreness or tenderness, and the inability to use the thumb; it was bandaged and splinted; the pain lasted about a week; it was not very serious.

Damages must be restricted to strict compensation against .persons vicariously liable as an employer for the acts of his employee. Terrell vs. Babcock, Gardiner & Co., 8 La. 25; Keene vs. Lizardi, 8 La. 33, quoted in 147 U. S. 101; Hill vs. New Orleans, O. & G. W. R. Co., 11 La. Ann. 292; Graham vs. St. Charles Street R. Co., 47 La. Ann. 1656, 18 South. 707; Rutherford vs. Shreveport & H. R. Co., 41 La. Ann. 793, 6 South. 644; brief, Vincent vs. Morgan’s Louisiana & T. R. & S. S. Co., 140 La. 1044, 74 South 541.

The suit is exclusively for suffering; no loss of time or other damage.

The plaintiff’s suit of clothes was damaged to the extent of $30; he paid $5 for an X-ray, and possibly $20 to his doctor.

1. In Maher vs. Louisville, N. O. & T. Ry. Co., 40 La. Ann. 64, 3 South. 462, the court reduced a judgment of $750 to $300 for slight injuries.

2. In Rutherford vs. Shreveport & H. R. Co., 41 La. Ann. 793, 6 South. 644, the judgment was for $200 where “the injuries were not grievous, the sufferings not intense and the consequent loss of time and of business slight and not of long duration. Harkness vs. Louisiana & N. W. R. Co., 110 La. 822, 34 South. 791.

3. In Nash vs. Canal & C. R. Co., 52 La. Ann. 1199, 27 South. 661, where “the injuries were not severe,” the plaintiff recovered $100.

4. In Dixon vs. Pittsburg & G. Lumber Co., 52 La. Ann. 1114, 27 South. 654, rifle ball wound $150.

5. In Thompson vs. Dotterer, 105 La. 37, 29 South. 483, where the plaintiff “was seriously injured”, the jury awarded $250.

6. In La. Grove vs. City of New Orleans, 114 La. 253, 38 South. 160, the plaintiff was seriously injured. She alleged that she was treated at the Touro Infirmary, and that she was confined to the bed for seven weeks. The Court refused to increase a judgment of $300.

7. In Oxendine vs. Louisiana Ry. & Nav. Co., 119 La. 191, 43 South. 1003, the plaintiff received “a cut across the eyebrow and some slight bruises.” He obtained a judgment for $100.

8. In Allen vs. Town of Minden, 127 La. 403, 53 South. 666, a lady was slightly injured by falling into an excavation in the street. She received $100, same on page 407.

9 In Cartwright vs. New Orleans Ry. & Light Company, 131 La. 210, 59 South. 124, $700 for a sprained shoulder was reduced to $350.

We think that two hundred dollars for suffering, thirty dollars for clothes, twenty dollars for doctor, and five dollars for an X-ray will be full compensation to the plaintiff.

It is therefore ordered that the judgment herein be reduced from five hundred dollars to two hundred and fifty-five dollars, and as thus amended the same is affirmed.


text:
    No. 9901.
    Orleans
    SUCCESSION OF WILLIAMS v. LAND DEVELOPMENT COMPANY, Appellant
    (February 15, 1926. Opinion and Decree.)
    (March 15, 1926. Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest—¡Execution—Par. 25— Executors and Administrators—Par. 326.
    A judgment creditor of a succession under administration has no right to issue a writ of fieri facias against the succession and to seize and sell its property under said writ.
    2. Louisiana Digest—Executors and Administrators—Par. 230, 260.
    The executor is without right by his consent to give validity to a sale made under such a writ.
    Appeal from Civil District Court, Division “E”, Hon. Wm. H. Byrnes, Jr., Judge.
    Action by succession of Emma Williams, widow of Jonas V. Martin, against Land Development Company.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    F. R. Richardson, of New Orleans, attorney for plaintiff, appellee.
    Theo Cotonio, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

The facts of this case are related in the opinion of this Court rendered June 19, 1922, in suits Nos. 8282-8464 consolidated.

Succinctly stated, they are as follows:

The present plaintiff, the succession of Williams, sued the present defendant, the Land Development Company, to annul a tax sale to it of certain property owned by Emma Williams. There was judgment in 1920 in favor of the succession of Williams annulling the tax sale, and in favor of the Land Development Company against the succession of Williams for the price paid by the company at the tax sale and for all other taxes paid by it (Flanagan vs. Land Development Company of Louisiana, 145 La. 843, 83 South. 39), amounting to $1,371.73, reserving “the right of both plaintiff and defendant to sue upon all other claims and counterclaims.”

By consent of the administrator of the succession a rule was made absolute ordering a fieri facias to issue against the succession to pay the amount of that judgment. The writ issued November 17, 1919. The property was sold for a price insufficient to satisfy the writ, leaving a balance unpaid of $171.73.

Thereupon Flanagan, administrator of the succession of Emma Williams, filed suit against the Land Company to recover from it the rents and revenues of the property collected by the Land Development Company during its possession of the property alleged to amount to $2,970 under No. 131,319 of the Civil District Court. The Land Company then issued an alias fi fa against the succession to satisfy the balance of its claim, of ■ $171.73, and caused to be seized all tbe rights, title and interest of the succession of Williams in its suit, 131,319, against the Land Company.

Thereupon on March 18, 1921, the executor of the succession of Emma Williams enjoined the execution of the writ. He alleged all the facts above and further alleged “that the property under seizure under said writ of alias fieri facias was the property of the succession under administration in this court, and that the property of the succession could not be seized under .such a writ, nor could the orderly administration of a succession under administration be thus interfered with or taken away from the hands of an officer of the court appointed to administer same,” and that the act of seizing the claim was a palpable attempt of the Land Company to defeat the collection of the debt due by it. The executor prayed that the Land Company and the Sheriff be forever enjoined from proceeding under the writ of fieri facias and from advertising or selling the right, title and- interest of the succession of Williams in its suit against the Land Company, No. 131,319.

For answer the Land Company averred that the succession of Williams acquiesced in the execution of the judgment in favor of the Land Company and made no opposition to the original writ of fieri facias, that the alias writ is merely ancillary to the original writ, and that the succession was now estopped from contesting the right to issue the alias writ.

There was judgment March 20, 1924, in favor of the succession of Williams, perpetually enjoining the execution of the writ of alias fieri facias.

The Land Company appealed.

The case has been submitted in this court without brief or argument on either side.

We see no error in the judgment.

It has been decided that no execution or writ of fieri facias can issue against a succession and that its property must be sold in the succession, C. P. 924, S. 5-13-983, Bertin vs. Phillips, 1 La. Ann. 173; Pooley, Nichols and Company vs. Snow, 12 La. Ann. 814; McCoy vs. Sanson-Estate of Carasco, 13 La. Ann. 456; State vs. Judge of Second District Court, 21 La. Ann. 44; Levy and Sugar vs. Cowan and Mayo, 27 La. Ann. 556; Hall and Lisle vs. Belden, 29 La. Ann. 118; Morgan vs. LaLanne, 32 La. Ann. 1301; Fontelieu vs. Fontelieu, 116 La. 882, 41 South. 120; Succession of Irwin, 33 La. Ann. 65.

The District Court has no jurisdiction to issue a writ of fi fa against property belonging to a succession under administration. Houston vs. Childers, 24 La. Ann. 472; Succession of Patrick, 25 A. 154.

“Nothing is better settled than that succession property cannot be sold under a writ of fi fa.” Levy vs. Lehman, 38 La. Ann. 9, quoting Bertin vs. Phillips, 1 A. 173; Williams, Jr., vs. Hunter, 13 A. 476, and Succession of Patrick, 25 A. 154.

In State ex rel. Hasson, 21 La. Ann. 43, the Court said, on page 44:

“A judgment recognizing a claim against °a succession has generally no greater force in law than an acknowledgment of the claims by an executor or administrator. C. P.. 985, 986. In either case the creditor can only obtain the payment of it concurrently with the other creditors.” C. P. 986, 1054.
“Whether a claim against a succession is recognized judicially in a direct action, or by opposition to a tableau of distribution, Succession of McCalop, 10 La. Ann. 224, in either event, whatever may be the amount of a creditor’s judgment, he can only recover on it such amount as may be awarded to him in such tableau when dulyhomologated,” quoted in Simpson vs. Buckley, 140 La. 599, 73 South. 691, Succession of Irwin, 33 La. Ann. 65.
“It is to be observed from the foregoing decisions that it had been repeatedly held, as contended by the plaintiff’s counsel, that a creditor holding a judgment against a succession under adminstration has no right to have the property of the succession seized and sold under a writ of fieri facias, but must obtain an order of Court to sell the property to pay the debts of the succession in the ordinary course of administration.”
“That rule being largely to maintain an orderly and equitable administration of succession, etc.” Simpson vs. Bulkley, 140 La. 602, 73 South. 691.

The executor is without right, by his consent, to give validity to a sale made under such a writ; therefore he is not estopped by any previous consent he may have given. Bertin vs. Philips, 1 La. Ann. 173; Houston vs. Childers, 24 La. Ann. 472; Hall and Lisle vs. Belden, 29 La. Ann. 118.

Judgment affirmed.


text:
    No. 10,093.
    Orleans
    DUNN, Appellant, v. RIGAUD
    (March 29, 1926. Opinion and Decree.)

      (Syllabus by the Oourt.)

    1. Louisiana Digest — Appeal — Par. 625— Master and Servant—Par. 160(1).
    The judgment of the trial court will be affirmed unless it appears manifestly erroneous.
    Appeal from Civil District Court, Division “D”, Hon. Porter Parker, Judge.
    Action by Robert Dunn against Jules Rigaud for compensation under the Workmen’s Compensation Act No. 20 of 1914.
    There was judgment for defendant, and plaintiff appealed.
    Judgment affirmed.
    Lazarus, Weil and Lazarus, of New Orleans, attorneys for plaintiff, appellant.
    Bernard T'itche, Jr., of New Orleans, attorney for defendant, appellee.
   CLAIBORNE, J.

This is a suit under the Employers’ Liability Act.

Plaintiff alleged that about August 16, 1923, he was employed by Jules Rigaud as a plasterer’s helper, which is a hazardous occupation, in the repair of a building at Breaux Bridge; that while engaged in his work he fell from a “stairway” which he was climbing with buckets of mortar in his 'hands; that in falling “from said ladder” he struck his head, which caused him to become partially paralyzed, and also struck his shoulder, fracturing it; that at the time of the accident he was earning $45 a week. . He. prays for judgment for $27 a week for 300 weeks and for $150 medical services.

Defendant admitted that he had a contract to repair a building at Breaux Bridge, but denied all the other allegations of the petition.

There was judgment for defendant, and plaintiff has appealed.

The plaintiff contends, as he alleges, that he fell down the steps within the building and thus was hurt. The defendant, on the contrary, argues that the testimony shows that plaintiff fell in the street at some considerable distance from the building and received the wound he complains of.

. The sole question therefore is one of fact: Did the plaintiff fall within the building or. did he fall in the street? If the latter, the judgment appealed from is correct.

The plaintiff testified that he was 54 years old; that by occupation he was a mortar-mixer and hod-carrier; that on August 16 he was, in the employ .of the defendant in Breaux Bridge mixing mortar and carrying it up to the second floor, where his employer was plastering rooms; he started work at 7 in the morning; at 10 minutes to 12 o’clock he was carrying two buckets of mortar up the stairway to the two plasterers working on the third floor; as the buckets were heavy, they caused him to lose his balance, and near the second floor he fell backward and rolled down the steps upon the mortar box upon the basement and “knocked a hole into his head”; he bled profusely and his face was covered with blood, which blinded his eyes; when he recovered his senses he “commenced” to find a doctor and went in search of a drug store to stop the bleeding; on his way he stepped down in a ditch and fell again; he could not see, his face was so full of' blood; two men picked him up, a policeman and a doctor; he told them that he fell in the building, that he was going to the drug store to get something to stop the blood; that he fell against the mortar box in the building; the buckets rolled down with him and the mortar in them spilled out; he bled at the foot of the stairway; he did not get to the drug store; he cannot be mistaken about that.

There was no other witness to the alleged fall down the stairs.

The only other witness for the plaintiff was Dr. Alvin J. Smith, who saw him in New Orleans 36 hours after the accident. He knew nothing of the details of it, except what plaintiff told him, which, .of course, was inadmissible.

Defendant introduced the following witnesses:

First: L. M. Pellerin, druggist at Breaux Bridge, was at his drug store at about 12:30 on August 16, 1923; he sold the plaintiff aspirin tablets at that time; the plaintiff did not show any cut over his eye or on his face; there was no blood on his face or on his clothes; saw him leave the store to recross the street.

Second: Clerfet Patín, a butcher, at 12:30 p. m. on August 16th, was on his wagon, corner of Bridge and Main Streets; he saw Robert Dunn walking across the street; he began staggering and fell on his face; when he first saw him he had no cut on his face nor any blood on his face or clothing.

Third: Brognier Guidroz, Town Marshal, was standing in front of B. M. Perlerini’s Drug Store; he saw Robert Dunn leave Perlerini’s drug store; he had neither cut nor blood upon his face or upon his clothes; he saw Dunn attempt to. cross the street; whilst in the middle of the crossing he stumbled and began falling, and fell on the cement walk in front of Dupuy’s store.

Fourth: Dr. D. J. Gragon, physician and surgeon at Breaux Bridge; graduate of Tulane University; was called upon to treat plaintiff at Breaux Bridge; found him on August 16, 1923, at 12:30 p. m„ at the corner of Main and Bridge Streets; diagnosed his case as cerebral embolism; made a written report of the case to Lionel Favrot of New Orleans as follows: Paraly'sis of one side, a cut on forehead over left eye, with blood flowing from cut onto walk and no blood on clothes; the place where he fell was one and one-half blocks from Convent Building; there was no trail of blood; there being no blood on his white jumper and plenty on cement walk shows he bled only after falling; the drug store was across the opposite corner; neither the fall nor the cut on plaintiff could have .produced the. paralysis; after he treated Dunn on the street he was taken to Joe Martin’s home, where the doctor saw him again at about 6 p. m. of the same day; quoting the doctor: “He (plaintiff) told me that he was feeling dizzy and had gone to Mr. L. M. Pellerin’s drug store for some medicine, and whilst crossing the corner he lost control of his legs and fell on edge of cement walk.”

Fifth: Walter Hall was a plasterer; he was working for Jules Rigaud, the defendant, on August 16, 1923, at Breaux Bridge at the Convent on the second floor; Joe Rigaud and Robert Dunn were there also; Dunn was mixing cement and carrying it up stairs in buckets; the stairs were about ten feet from the place where he was working; at about 12, witness asked Dunn: “Is that the last bucket?” And he said: “That’s all for 12,” and he went off; he heard no noise of any one falling down the steps; the buckets were of galvanized iron; he walked down the steps into the mixing room; he saw no evidence of mortar buckets or mortar spilled upon the steps, nor blood near the mortar box; the buckets were in order, and empty, ready for 1 o’clock; witness went with another man and picked up Dunn on the street, right across from the drug store, two blocks from the convent; saw no blood on his clothes. In the evening plaintiff told him: “I was feeling dizzy and I was trying to make it to the drug store”; the mixing box at the convent was about ten feet from the bottom of the steps; there was a hall about ten feet wide between the stairway and the mixing room; the buckets were standing alongside of one another, and his hod and shovel were clean.

Sixth: Joseph Rigaud, 15 years old, son of defendant, says he was working about five feet from the stairs; he saw Dunn going down stairs; he followed him for about five flights; he did not see him slip, nor did he hear any noise; he knocked off at 12 and went down the stairs and saw no evidence of mortar spilled; he saw the piaintiff on the pavement across the drug store; they all picked him up and brought him to the boarding house.

We think the testimony of these six witnesses is sufficient, if not to destroy the unsupported testimony of the plaintiff, at least to deprive his testimony of that degree of certainty required to entitle him to judgment.

As we said in the case of Furlow vs. Maison Blanche, 2 La. App. 351 (354), quoting:

“In questions, therefore, respecting the credit of a witness, the want of assent is not founded upon an assurance that his testimony is false, but from the want of an adequate assurance that it is true.”

We believe the judgment appealed from is correct, and it is therefore affirmed.


author: WESTERFIELD, J.

text:
    No. 10,208.
    Orleans
    UNITED MOTOR CAR COMPANY, INC., v. DRUMM, Appellant
    (January 18, 1926. Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest—Sales—Par. 219, 232.
    A purchaser of a second-hand, five-year-old automobile must expect the automobile to require such frequent repairs as its use and age suggests.

      2. Louisiana Digest—Sales—Par. 218.
    The clause “as is” ■when, employed in a contract of sale of an automobile does not relieve the vendor of all warranty. But if the auutomobile is fit for the use for which it was intended and will run, the fact that frequent repairs are necessary and new parts required to keep it running does not void the sale upon the ground of failure of consideration, particularly when the automobile is sold as a second-hand, five-year-old • machine.
    Appeal from the Civil District Court, Division “A”, Hon. Hugh C. Cage, Judge.
    Action by United Motor Car Company, Ino., against Edward T. Drumm.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    M.' R. DeReyna, Carbajal and Gaudin, of New Orleans, attorneys for plaintiff, appellee.
    James L. Landry, Puneky and Barrios, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

Plaintiff, defendant in injunction and appellee herein, seized under executory process a second-hand Peerless automobile belonging to the defendant, Edward T. Drumm, alleging an indebtedness of $501.01, with interest from. June 9, 1923, at the rate of 8 per cent per annum until paid.

Drumm obtained an injunction without bond under C. P. 739 enjoining the seizure on the ground “that the United Motor Car Company, Inc., has not acquired a good, full, valid and lawful title to said notes, because the chattel mortgage executed had failed of fulfillment; that the representa^ tions and warranties were false and have not been fulfilled, and that the United Motor Car Company, Inc., became the owner and holder of said notes without a valuable consideration, through fraud or other fraudulent representations.” It was further alleged that the chattel mortgage was not properly executed and that consequently there was no authentic evidence to justify the issuance of the executory process. On these issues the case was decided against the defendant Drumm, and, on appeal to this court, we held, under the number 9698 of the docket of this court, that an injunction could only issue without bond under C. P. 739 upon one of the grounds mentioned in that article and no other ground would be considered and that fraud was the only ground mentioned by defendant enumerated in C. P. 739, and as to that defendant had failed to establish it, consequently the injunction must be dissolved and the judgment appealed from affirmed. On rehearing we held in conformity with Phillips vs. Adams Machinery Company, 52 La. Ann. 445, that the allegation of failure of consideration for which the mortgage was given was comprehended by the terms of the third paragraph of Art. 739, which provides that the debtor can prevent the sale of the thing seized if the debt be “extinguished by transaction, novation or some other legal manner.” We found, however, that defendant, the plaintiff in injunction, had been prevented from making proof "of failure of consideration when he attempted to do so by the trial court and remanded the case to afford the defendant the opportunity to establish this defense.

The case was revived on this issue, and was again decided against the defendant, Drumm, and he has again appealed.

The sole question now before us is whether the notes sued on failed of consideration under the evidence presented on the second hearing.

Warranty is an implied condition in all sales. But the automobile in this case was, under express stipulation of the parties, purchased by the defendant “As is.”

, The use of these woMs in a contract of sale means, we take it, “as it is,” and as applied to the automobile sold by plaintiff it was purchased “as it was.” We would not wish to be understood as holding that the presence of these words in a contract of sale would amount to a waiver of all warranty by the purchaser. But, certainly, the phrase modifies the warranty implied. If, however, the thing -sold, the automobile in this case is not fit for the use for which it was intended; for example, if it would not run, the fact that it was sold “as is” would not prevent a rescission of the sale for one of the characteristics of an automobile, as its name suggests, is the ability to run on its own power. In this case the automobile sold was five years old and second-hand. It has been proven that it required considerable mechanical attention to keep it going, but a five-year-old secondhand automobile usually does. As was well said by the learned judge a quo: “The fact that it is second-hand and has been used for several years carries with it the implication, like an old man 75 or 80 years of age, that the machinery is worn out and that the party buying it agrees to take a practically defective machine in order to get it for a very small price.”

The automobile in this case did run, albeit with difficulty. It ran to Lafayette, La., and from there to New Iberia and back to New Orleans.

Mr. Drumm was mistaken in saying that he had the car not more than thirty days, for the evidence shows he had it several months before surrendering it to the plaintiff, or we should say abandoning it at the plaintiff’s place of business. It had to be repaired frequently during that time, but we can not say that there was anything extraordinary in the condition of the car as delivered to defendant. It was simply an old car displaying the usual symptoms of approaching dissolution. A mechanic testifying in defendant’s behalf, says: “The

pump was leaking, the shaft was oblong and the liners were scoofed in.” We are unable to entirely comprehend the significance of these automobile ailments, but they seem to be natural concomitants of age:

Our conclusions are that defendant has failed to prove failure of consideration of the notes sued and that consequently the judgment appealed from must be and it is hereby affirmed.


text:
    No. 1942.
    Second Circuit.
    KENDRICK, ET AL., v. CARROLL.
    (April 10, 1926. Opinion and Decree)

      (Syllabus by the Court.)

    1. Louisiana Digest—Appeal—Par. 625.
    The finding of the trial court on a question of fact will not be disturbed by this court unless manifestly erroneous.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hon. E. P. Mills, Judge.
    Action by J. D. Kendrick, et al., against Colon C. Carroll to be recognized as heirs and placed in position of a succession.
    There was judgment for defendant and plaintiffs appealed.
    Judgment affirmed.

      Murff and Mabry, of Shreveport, attorneys for plaintiffs, appellants.
    John B. Piles, of- Shreveport, attorney for defendant, appellee.
    STATEMENT OP THE CASE.
    In this case the plaintiffs, brothers and sister of Mrs. Emma Kendrick Carroll,' deceased wife of the defendant, Colon C. Carroll, sue to be recognized as her sole heirs and to be placed in possession of her succession, consisting of an undivided half of all property belonging to the community between her and her husband, the defendant, Colon C. Carroll.
    Defendant resisted the demand of the plaintiffs on the ground that his wife, by last will and testament, bequeathed to him all of her property.
    The plaintiff on the trial sought to show that the will was a forgery.
    On these issues the case was tried and there was judgment sustaining the validity of the will, and the plaintiffs appealed.
   REYNOLDS, J.

OPINION.

The question to be decided is whether or not the purported will of Mrs. Emma Kendrick Carroll, relied on by defendant in support of his title to the property in controversy, is genuine or a forgery.

There are certain technical issues presented by both plaintiffs and defendant as to the effect that shohld be given to the judgment of the District Court of Caddo Parish, Louisiana, probating the purported will of Mrs. Emma Kendrick Carroll, but it is not necessary for us to pass on these questions, as the evidence introduced on the merits of the case makes it clear to our mind that the judgment rendered by the lower court is correct.

The evidence on the question of the genuineness of the will is:

Colon C. Carroll testified, pages 12 and 13:

“Q. I will ask you whether or not you are familiar with your wife’s handwriting?
“A. Yes, sir, I think that I should be as much so as any one.
“Q. You have often seen her write her name?
“A. Yes, sir.
“Q. I will ask you if .that is entirely written, dated and signed by your wife?
“A. Yes, sir.
* * * *
“Q. Who dictated the -will, do you know?
“A. Well, she had a form to write the will from, from Mr. Fred Leonard.
“Q. When did she write that?
“A. In August, nineteen and ten.
* * * *
“Q. You didn’t see her write that?
“A. No, sir, I couldn’t say that I seen her write all of it. I seen her write parts of it, and when she finished it, I saw it, of course. I remember the time that she was writing it, but I didn’t see her write everything on there. There was no one else on the place except me and her.
“Q. Did you ever show the family that will before it was written?
“A. No, sir, not before it was written.
“Q. Did you ever show the family the will?
“A. Yes, sir.”
L. A. Waltern testified, pages 20 and 21.
* * * ❖

Counsel for defendant now offers in evidence the document marked defendant-B, showing four signatures of Mary E. Carroll, which were taken from the minute book of the Woodman Circle No. 37, Myrtis, of the minutes of date, one signed May 8, 1907; two, May 22, 1910; three, June 6, 1907, and four, August 28, 1907.

“Q. Now, Mr. Waltern, I will ask you if you recognize those as the genuine signatures of Mrs. Mary E. Carroll?
“A. Yes, sir.
“Q. Now, she signed her name to those documents?
“A. Yes, sir.
“Q. In your presence?
“A. Yes, sir.
“Q. Do you know that she signed those?
“A. Yes, sir; I saw her sign them.
“Q. You saw her sign each one of those?
“A. Yes, sir.
“Q. Mr. Waltern, I will show you the document attached to the petition in proceedings number 33620, entitled ‘Succession of Mary Emma Carroll', purporting to be the last will and testament of Mrs. Mary Emma Carroll, and I will ask you to examine that and state whether or not you recognize it as having been wholly dated, written and signed by her? (Handing witness document.)
“A. Yes, sir, I have seen that before; that’s her handwriting.
“Q. You have frequently seen her sign documents ?
“A. Yes, sir.
“Q. In your opinion, this is entirely written, dated and signed by her?
“A. Yes, sir.”
L. H. Baker testified, pages ---------
“Q. Mr. Baker, what is your business?
“A. I am cashier of the City Savings Bank and Trust Company.
“Q. Now, in that capacity do you have to examine signatures on documents, checks and so forth?
“A. Yes, sir, frequently.
“Q. Mr. Baker, I will show you the document attached to the petition in the succession of Mrs. Mary Emma Carroll, 33620, purporting to be the last will and testament of Mrs. Mary Emma Carroll, and I will show you for comparison four signatures which have been testified by witnesses that they had seen her sign her name, and I will ask you to compare the signatures of that document with this will and state whether or not in your opinion they were written by the same party?

(Witness examines will and the four signatures referred to.)

“A. Yes, sir, there would not be any doubt in my mind if I had to pay a check on it.
“Q. Mr. Baker, did you examine the whole document?
“A. No, sir, just the signatures.
“Q. Now I will ask you to examine the whole statement and compare the handwriting and state whether the whole document is wholly written, dated and signed, and what do you say to the signature of that? (Witness compares same.)
“A. Yes, sir, I think that it is the same handwriting, compares the same as the signature, and compares with the ‘Carroll’ written in this document and the ‘Carroll’ written in the signature; they are the same.
“Q. How about the rest of it?
“A. The rest looks to be the same handwriting to me.”
A. C. Braunig, assistant cashier of the City Savings Bank and Trust Company, testified, in substance, to the same state of facts.

Mrs. Mary Waltern testified, page 37:

“Q. Now, we have cut out four signatures from this book, Mrs. Waltern, by permission of Mr. Waltern, and I will ask you if she signed those in your presence, if you saw her sign them? (Witness examines same.)
“A. Yes, sir, we had the desk there, and she would come to my desk and sign the book there at my desk.
“Q. You both would sign the minutes there, of the meeting?
“A. Yes, sir.
“Q. You were" the clerk and she was the guardian?
“A. Yes, sir.
“Q. Mrs. Waltern, having often seen Mrs. Carroll sign her name, I will show you the document attached to proceedings number 33620, succession of Mrs. Mary E. Carroll, purporting to be her last will and testament, and I will ask you to examine that and see in your opinion, whether or not she wrote that document, whether it is entirely written, dated and signed by her? (Witness examines same.)
“A. While, of course, I didn’t see her, but to my opinion she did it, seems like she did it; while I’m no expert or anything like that, of course, I know that.
“Q. Judging from what you have seen her write, her handwriting—-in your opinion, you would say she wrote that document?
“A. Yes, sir.”

Mr. A. T. Kahn, a hanker, called as a witness for plaintiff, testified, page 46:

“Q. Would you say that the four signatures on the document marked defendant-B were written by one and the same person?
“A. Yes, sir.
“Q. You say that that is the handwriting of the same person?
“A. Yes, sir.
“Q. Now, compare that with the will and state in your opinion whether the party who wrote those signatures also wrote that will and signed it? (Witness examines and compares same.)
“A. It looks to me like that is all the same writing.”

Mrs. S. A. Hall, Mrs. S. A. Dees,, and C. L. Kendrick, plaintiffs, sisters and brother of Mrs. Emma Kendrick Carroll, each testified that in her or his opinion the signature of Mrs. Emma Kendrick Carroll on the purported will is a forgery.

These three witnesses were all directly interested in thé result of the suit, and while we are impressed by their testimony that they tried to be fair, yet it is well known that self-interest is difficult to overcome.

“When self the wavering balance shakes, it’s rarely right adjusted.”

We are convinced that the testimony of the plaintiffs themselves cannot outweigh that of the above mentioned disinterested witnesses.

With all the testimony in the case before him, the District Judge who tried the case and saw the witnesses and heard them testify rendered judgment rejecting plaintiffs’ demand. We find his judgment correct.

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed with costs.


author: ODOM, J.

text:
    No. 1778.
    Second Circuit.
    MILES v. RECLAMATION OIL PRODUCING ASSOCIATION.
    (December 10, 1925. Opinion and Decree.)
    (February 9, 1926. Rehearing Refused.)
    (Original Opinion, November 21, 1924, May Be Found at 1 La. App. 94.)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Appeal—Par. 139.
    No judgment can be rendered except as between litigants having capacity to stand in judgment.
    2. Louisiana Digest—Judgment—Par. 8.
    A judgment rendered by the Court of Appeal where a defendant died pending the appeal is void in so far as it affects that defendant.
    Appeal from First'Judicial District Court of Louisiana, Parish of Caddo, Hon. E. P. Mills, Judge.
    Action by R. P. Miles against the Reclamation Oil Producing Association.
    A defendant, G-. R. Murrell, having died pending the appeal, this case was reopened merely for the purpose of making proper parties defendant.
    Cook and Cook, of Shreveport, attorneys for plaintiff, appellee.
    Wilkinson, Lewis and Wilkinson, of Shreveport, attorneys for defendants, appellants.
   ODOM, J.

The appeal in this case was filed in this court on July 31, 1922.

A final decree therein was handed down by this court on November 21, 1924. (See 1 La. App. 94.)

On April 6, 1923, after said decree had become final, plaintiff, appellee, appeared in this court through counsel and suggested to the court that pending the appeal, to-wit, on April 18, 1923, G. R. Murrell, one of the defendants, had died, and asked that our final decree be set aside and that Mrs. Margaret Gwinn Murrell, administrator of the succession of G. R. Murrell, be made a party to the proceeding.

On April 11 following this court entered an order on the minutes setting aside its said judgment and ordering that the administrator be made a party.

On April 20 counsel for some of the defendants filed an exception to the jurisdiction of this court, setting up that this court is without jurisdiction to entertain any plea or motion to substitute new parties in this case after the case had been remanded to the lower court for execution.

After the decree of this court had been handed down, the plaintiff, appellee, sought to have the judgment executed through the District Court, whereupon defendants, appellants, brought suit in the District Court to have the judgment of this court set aside on the ground, as we understand it, that G. R. Murrell died pending the appeal, and that therefore the judgment as to him was an absolute nullity.

So far as this court is informed, that suit has not been disposed of.

The appearance of appellee in this court on April 6, 1925, subsequent to the rendition of our final decree, suggesting to the court that one of the appellants had died pending the appeal and that his • representative had not been made a party, amounted to no more than to call the court’s attention to the fact that it had never in fact-finally disposed of the case, and that the case was still pending on appeal.

All parties agree that Murrell died pending the appeal. Our judgment of November 21, 1924, was, therefore, an absolute nullity as to him. There was no one before the court for whom or against whom a judgment could be rendered. That being true, the case was not disposed of by that decree, for the reason that the court had no power to proceed.

The case not having been disposed of, then what became of the appeal? Necessarily it is still pending and must be disposed of in due course.

In the case of Edwards vs. Whited, 29 La. Ann. 647, a similar question was involved, and the Supreme Court said:

“We take occasion to say that counselors of this court should, when they have knowledge of the death of a client, party to a cause pending, inform the court, and have the suggestion of death made of record, so that the court may not do so vain a thing as to pronounce a void decree. If no such suggestion is made, the court, ignorant of the death, will proceed of course; and there may be delays, and confusion, and much useless litigation, which a prompt suggestion of death would avoid. We do not hesitate to say that a decree of this court for or against a person no longer in existence is an absolute nullity; and that the nullity may be shown by any person against whom the attempt is made to enforce it.
“The court below should have allowed the proof of the death of Edwards, and of the failure to make his legal representative a party in his stead; and, if it were necessary, we should remand the case to enable the defendant to make this proof.
“But we know, from the entries in the minutes, that the appeal was pending, on rehearing, at the end of the July term, 1872; and that the final decree was rendered at the July term, 1873. It was admitted on the trial that Edwards died in September, 1872; and no steps were taken to have his legal representative made a party. In reality, the case is still pending, on the rehearing, because the court had no power to proceed after the death of Edwards. The decree of July, 1873, is an absolute nullity; and the judgment appealed from is suspended, and cannot be enforced, until the appeal is disposed of, contradictorily with the legal representative of Edwards, the deceased appellee.

In the case of Roe vs. Caldwell, 138 La. 652, 70 South. 548, the court said:

“No judgment can be rendered except as between litigants having capacity to stand in judgment."

In the case of succession of Pickett vs. Pickett, 41 Ann. 882, the court held that an account filed for an administrator who had previously died was an absolute nullity, and said:

“It never had any existence and can be given none by any judicial proceeding. No judicial proceeding can be carried on in the name of a deceased person.”

Many other decisions to the same effect might be cited.

Our holding, therefore, is that the decree handed down by us on November 21, 1924, is in law no decree at all, .and that the case has not been disposed of by us.

The case is now pending on appeal before this court. It is in the same situation as it was on the day of the date of the death of G. R. Murrell, which was prior to the setting of the case for hearing in this court.

We understand that the administratrix of G. R. Murrell has voluntarily come into court and made herself a party to the proceeding. There remáins nothing to be done, therefore, but to have the case disposed of along with other appeals.

It is therefore ordered that the case be set for hearing in this court in due course, as though no action had ever been taken.

Carver, Judge, recused.