text:
    No. 6526.
    Jourdain Savoie, Administrator, vs. P. A. Thibodaux.
    Where the defendant, who has been east, fails to appeal, or to join in the appeal taken by the plaintiff, and thereby acquiesces in the judgment, he can not, after this court has affirmed the judgment and the plaintiff proceeds to execute it, enjoin its execution; even though it appear that the plaintiff issued his fieri facias before the judgment of this court was filed and recorded in the court below'. 11 "
    APPEAL from the Fifteenth Judicial District Court, parish of Lafourche, Beattie, J.

      J. S. Goode, for plaintiff and appellant. 0. Knobloch, for defendant.
   The opinion of the court was delivered by

Spencer, J.

It appears from the record and statement of facts in this case that the plaintiff, as administrator, holding certain notes of defendant, secured by mortgage and vendor’s lien, proceeded via ordinaria to obtain judgment therefor and a decree of foreclosure. On the judgment thus obtained a writ of fieri facias was issued, and the mortgaged property seized and advertised for sale. Defendant sued out an injunction, claiming a credit of four hundred dollars on the judgment and execution. The court below perpetuated the injunction to the extent of the credit claimed, and dissolved it, without damages, for the balance. From this judgment the plaintiff, Savoie, alone appealed. On the fourteenth of February, 1876, the Supreme Court rendered its decision affirming the judgment of the lower court. The sheriff, pending the injunction and •appeal, of course, suspended proceedings under the writ, returning the original and retaining a copy at the end of seventy days, as the law directs. On the twenty-sixth of February, 1876, the sheriff again- advertised the property for sale on the first of April, 1876. On the morning of the thirty-first of March, 1876, the attorney of defendant in execution called at the clerk’s office and was informed that the decree of the Supreme Court had not been received or filed. At noon of that day •(thirty-first of March) the opinion and decree was received and filed in the clerk’s office. It is also admitted that the credit of four hundred dollars allowed by the district and Supreme Courts was indorsed on the execution on the thirty-first of March, 1876.

On the evening of the thirty-first of March the defendant in execution -(P. A. Thibodaux) filed another injunction, in which he alleges and recites the history of the case, and that the plaintiff, Savoie, had taken an appeal to the Supreme Court, and that the mandate and decree of said court had not been “ returned, filed, recorded, or spread upon the minutes of the clerk’s office of the district court,” and that notwithstanding this fact, the plaintiff and sheriff were proceeding to offer said property for sale again, and had advertised it for sale on the first Saturday of April, 1876.

"^made other charges of irregularity- which were abandoned in the lower court and not insisted upon here.

The sole ground upon which defendant in execution rests his injunction is;-the prematurity of the proceeding. He does not allege or pretend-that the plaintiff'was seeking to sell the property for more than, was due under the judgment of .the district court. He admits that the execution was credited'with the four hundred dollars allowed by the district court, by indorsing the same thereon.on the thirty-first of March, 1876, and as-he does not complain of any excess in the amount of the execution, it is; fair to presume that he was cognizant of the fact at the time of filing, his-injunction.

As the- defendant did not appeal, or seek to have the judgment changed in his first injunction, suit, it is perfectly clear that he had no interest-in . refusing to pay the amount of the judgment, of the district court. He-had, acquiesced in. that by seeking no relief onjappeal..-■ Th® Supreme Court, could not have reduced, the amount of the judgment of the dis- . trict court, because defendant had not appealed or asked-it. As-long-, therefore as .the plaintiff sought to recover by execution only the amount, allowed by the. district pourt, the defendant had no right to complain-. He could not hope to pay less, because the appellate court had no power or right to decree him to pay'less. What injustice, then, was done defendant-by the proceeding? He does not pretend that plaintiff.was. executing his property for more than the amount allowed by the district court, whose judgment as to him was a finality. So far from working,, him an injustice, it would have been a benefit to him if plaintiff had proceeded with the execution before the decision|of the Supreme Court, for-, then the defendant could have gone into that court and entered a plea, that plaintiff had acquiesced in the judgment of the district court by prosecuting its execution. Plaintiff couldjabandon his appeal at anytime, as no change of - the judgment was sought .by the defendant, andi the enforcement of the judgment of the district court before obtaining ad-judgment on his appeal would have been such an abandonment by acquiescence.

Plaintiff’s 'case can not surely be- worse for. his enforcing execution after the decision on appeal than it would have, been had-he sought to enforce it before the. decision on. appeal. We have seen that he had a, \ perfect right to abandon his appeal and. to acquiesce in. the judgment-, appealed from at any time, and ¡to enforce, it. By. so doing he. does de- , fendant no injury, since defendant, himself -not. appealing, acknowledges-, thereby the justice .of-the judgment, and has.no right,to complain at its-. execution, and .abuses .-the-process, of court-byenjoiningit.. This view.of ■ the case renders it unnecessary for us to-decide whether, where .the Supreme Court has simply affirmed a judgment of the court below, and’ ••the delays for rehearing have expired, and the judgment has’become .final, it is sacramental that its mandate should-be filed and recorded in •the court below before proceeding to execute, a writ of fieri 'facias that has been enjoined in the Sheriff’s hands.

It is therefore ordered, adjudged, and decreed that the judgment of the ■district court be avoided and reversed. And proceeding now to render -such judgment as should have been rendered, it is ordered, adjudged, •and decreed that the injunction sued out by the defendant be dissolved •and set aside, and that he pay costs of both courts.


source: Caselaw Access Project

author: Mare, J.

license: Public Domain

text:
    No. 6507.
    State ex rel. Hoey & O’Conner vs. J. G. Brown, Administrator of Accounts.
    'To enable an Administrator of the city of New Orleans to take a suspensive appeal from a judgment against him in his official eapaoity, he must give bond and security, as the law directs. Only the city itself is dispensed from giving an appeal bond.
    APPEAL from the Superior District Court, parish df ■ Orleans.- Lynch, J.

      Lornvr & Benedict, for' plaintiff and appellee. B. F. Jonas, City Attorney, for defendant.
   The opinion of the -court was delivered by

Mare, J.

This suit was brought against J. G. Brown, Administrator of -Accounts of the city of New Orleans, to compel him to register a certain judgment in favor of relators against the city of New Orleans, and to -issUe to relators certain cash warrants.

. Brown was the only defendant, -and the judgment was against him alone.

“On motion of B. F. Jonas, City Attorney, of counsel for the city of New Orleans, and for J. G. Brown, Administrator of Accounts,” a suspensive appeal was granted to defendants without bond.

Appellees, the relators, move to dismiss the appeal on the ground that the appellant has given no bond, and that he is not exempt by law from giving bond.

The act of 1870, called session, page 4A, section 33, provides that “in all judicial proceedings where by law bond and. security are required from litigants the city of New Orleans is dispensed with giving bond or security.”

The dispensation thus granted by express law, in derogation of -the general law which requires all appellants to give bond and security, can not be extended beyond the terms of' the law; nor can it be invoked in . any case in which the city of hTew Orleans is not a party. State ex reL George vs. Mount, 21 An. 177.

The city was not a defendant and is not an appellant in this case; and the court below had no authority to grant the appeal, without requiring appellant to give bond and security. The motion to dismiss must prevail. ....

It is therefore ordered, adjudged, and- decreed that the appeal herein taken be dismissed with'costs'.


author: Manning, C. J.

text:
    No. 6341.
    Josephine Johnson vs. Clark & Meader.
    Where the appeal bond is made in favor of the appellee instead of the clerk of the court, it will, on motion to that effect, be dismissed. Nor will any surreptitious, interlineation of the bond, made after the motion to dismiss, by which the clerk is substituted for the appellee, avail to prevent the dismissal of the appeal.
    APPEAL from the Fourth District. Court, parish of Orleans. Lynch, J.

      Gibson & Gibson, for plaintiff and appellee. J. Tharp, for defendants.
   The opinion of the court was delivered by

Manning, C. J.

This case was recently remanded to the lower court with directions to try contradictorily with the parties the question of an alleged alteration, of the transcript subsequent to its filing in this court.

A motion had been made to dismiss the appeal upon the ground that, the bond for appeal was in favor of the appellee instead of the clerk of the court from which the appeal comes. When this motion came up for-■hearing, the counsel for appellee suggested that the original appeal bond,, and also the copy in the transcript, had been altered by interlining the-name of the clerk of the court, since the motion to dismiss was filed. Sworn statements of the feounsel and others were presented verifying-this suggestion of alteration of the record. Upon this, since original evidence is not adducible in this court, and the appellee should not be-deprived of the relief to which she claims to be entitled because the-. records have been tampered with, the order to remand for the purpose of trying this question alone was made. The record of that trial is. now before us, as well as the original suit.

The judge of the lower court now certifies to us that the appeal bond was altered by the insertion of the name of the clerk after the bond had been filed in the lower court, and after the transcript had been filed in this court; that the transcript of the suit was also altered by the insertion of the name of’the clerk in the appeal bond as copied therein after it was filed in this court, and the judge was of opinion and so adjudged that the name of the clerk of the lower court was inserted by interline-ation both in the original appeal bond and in the transcript after thkfc. transcript had been filed in this court.

Só grave a matter' requires of us the closest examination and' tl\e> clearest elucidation. We have therefore examined the evidence in its-minutest detail, and we find that it justifies the judgment of 'tire loivinr court.

Mr. Mackinley Gibson, the attorney of the appellee, swears that ifieappeal bond was’ made in favor of the plaintiff, Josephine Johnson;' ahd no one else, on the eighth of May, 1876; that after the bond was execfited and filed he obtained the papers in- the suit, carried them to his ofitée, and there pointed out to Mr. G. L. Hall that feature of the bond; that, he retained the papers in his office until the Friday preceding the Monday which was the return' day of the appeal,'when he delivered them'to the attorney of record of the defendants upon his applying for tliiem; that before thus delivering them he again examined the bond, and again; exhibited it to Mr. Hall, both of whom saw that it was unchanged'; that' on fifteenth of same month, which was the return day, he went to the' clerk’s office of the Supreme Court and' examined the transcript whiiih. had been filed, and that it was a correct transcript of the bond as executed, being payable in favor of plaintiff only; that he called the special! attention of Mr. Julien, the deputy clerk of this court, to the form of the> bond as copied in the transcript, saying he intended to base a motion to-dismiss upon its informality; that he 'then went to the clerk’s office of' the Fourth District Court, and inspected the original bond again, and?, it was unaltered, and he then made a copy of it himself, and on the next, day filed his motion- to dismiss on the ground that the bond for appeal! is not in favor of the clerk of the lower court. ■ It was not until several! months afterward he discovered upon a re-examination of the transcript, that the name and designation of the clerk of the lower court had b'eén. interlined in the transcript of the bond, and immediately proceeding 'to-that court-room he found the same interlineation had been made in the; original bond.

Mr. Hall confirms this testimony touching the exhibition'of the bond to him, and his examination of it, and subsequently of the transcript. Mr. Julien, the deputy clerk of this court, testifies that his attention was pointedly directed to the appeal bond as copied in the transcript, ahd that the name of the clerk was not then inserted or interlined therein;; that the transcript was then on file in the clerk’s office of this court,, and the interlineation was made after the filing, and after the motion to-dismiss had been made. George Caselar, the copying ■ clerk of the-Fourth District Court, swears that after the bond was filed in that court. he made a copy of it for Mr. Gibson, and the name of the clei-k of that, court was not then in the bond, and he remembers that fact distinctly» because lie remarked it to Mr. Gibson, who replied that was the reason he wanted the copy made and certified. Mr. Palms, the minute clerk of vthat court, identifies that certified copy as a correct copy of the bond as .originally filed. Edward De Blois, the clerk of the lower court, says he certified the transcript which was brought to him for that purpose by Mr. Ohalon, who had charge of his office, without examining it, and Mr. Chalón is dead. John M. Meilleur then appears on the scene and informs us that he made the transcript, having been engaged by Mr. •Ghalon to do it. The body of the appeal bond is also in his handwriting, and so also are the interlineations both of bond and transcript. .He was thus interrogated :

“Do you remember what day you put the interlineation in?”

, Answer — “ I could not remember the day or date, but I remember very well. • I think it was the day before filing the transcript or the day after, 'I am not sure, either Friday or Saturday or Thursday,” and afterward •replying to a similar question, says the interlineation was made in the transcript either on the day of filing or the day before.

When questioned as to the time when the interlineation of the bond ¡was made, says that it may have been the day after, but afterward he .can not say it might not have been a month or two months after it was filed. He had stated that he made the transcript and wrote the bond in the office of the attorney of the appellants, and afterward corrected .himself, and said it was written in the office of- the clerk of the Fourth ¡District Court, whereupon the attorney of the appellants on cross-exami.natión called on him then to state which place was the one where he did write the whole bond, and he answers “in your office;” and finally at the conclusion of his examination avows that the interlineations were made With the knowledge, consent, and approbation of Mr. Chalón.

, Mr. W. E. Murphy then testifies to his knowledge of Mr. Chalón, and declares that he was incapable of authorizing Meilleur to alter the records as sworn to by him. He was an experienced clerk, and knew his duties — an honest man who felt his responsibilities.

. It did not require testimony of the character of the deceased Chalón pr of his business habits, or of the possibility of his acting in a certain way in certain circumstances, to convince us that the interlineations of .these records, were not made at the time and under the circumstances mentioned by Meilleur. The testimony of all the parties whose business and interest was to examine and remember the facts leaves nothing to be desired for the completion of the proof. We find that the interlineations, both in the original bond and the transcript, were made after that transcript was filed in this court, and after ■ the motion to dismiss was filed.

W<‘ should not discharge otu- whole duty while these facts are brought under our immediate cognizance, were we to omit calling the notice of the proper officers to these developments of the trial below, and we ■accordingly direct the. attention of the Attorney General to them, in order that he and others whose duty is to search out and prosecute offenders, may institute the proper proceedings to ascertain whether the acts of any of the parties implicated by these disclosures -make them amenable to the criminal laws. The sanctity of judicial-records should be vindicated, and tampe: ers be taught by example.that the integrity of these records may not be violated with impunity.

Our function now is to thwart the attempt to defeat the course of law in the.present suit. When the.-motion to dismiss was filed,-the-bond in its then condition justified it. Its subsequent alteration shall not .prejudice the rights of the appellee, and it is therefore ordered that the appeal ,be and it is hereby dismissed at the costs of appellants.


text:
    No. 5295.
    L. Heyniger & Co. vs. A. Hoffnung et al.
    ■'The whole object of, a -rule nisi,, in matters of injunction, is to enable the defendant to .show, if he can, that on the-face of the papers,'the injunction ought not to be granted. On the trial of the rule, no affidavit from either side, bearing on the truth of the allegations of the-petition, will be admitted in evidence.
    .The refusal of the court, on a rule nisi, to grant an injunction, may be appealed from.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Hace, Foster & F. T. Merrick, for plaintiffs and appellants. Labatt, Aroni & Clinton, for defendants.
   The opinion of the court was delivered by

Manning, C. J.

Plaintiffs presented a petition to the judge of-the Sixth .District Court of New Orleans, accompanied by an affidavit and bond, .praying the issuance of an injunction against the defendants. The judge ordered the clerk to issue a rule nisi., returnable in three days, upon the defendants to show cause why an injunction should not issue.

• Upon the trial of the rule defendants offered in evidence several affidavits, the object of which was to show that the allegations of the petition were not true. Plaintiffs objected to their reception, on the ground that they went to the merits of the case, which they allege were not then before the court, and, on being overruled, took their bill of exceptions in form. The court discharged the rule nisi and refused the injunction, and from that judgment plaintiffs appeal.

The decision must depend on the answer which shall be given to the question: What is the nature, purpose, and scope of the rule nisi ?

The plaintiffs insist that there is no law authorizing our .courts to issue-any rule nisi for any purpose upon an application for an injunction, and invoke serious consideration of the question whether the introduction of that practice by a rule of court is permissible. They contend that, upon filing a petition, affidavit, and bond'witli good and sufficient security for such sum as • the court shall prescribe, an injunction must be-granted, provided the petition discloses a case warranting its issuance,, which is left to the legal discretion of the court to determine.

Pretermitting the expression of an opinion upon thát point, and merely observing that no rule of a court can make obligatory- upon a. plaintiff an imperative requirement which the law has failed to impose,, we shall sufficiently respond to the issue here made by saying that the object of the rule nisi is to give an opportunity to the defendant to show that an injunction is not allowable on the face of the papers, or in other words, that the facts and allegations contained in the petition are not, sufficient to warrant the court in issuing the writ. Any examination of the merits on the trial of that rule is premature. In the present case the court had before it the petition and affidavit of plaintiffs’ attorney, his clients being absent, that their allegations were true, and opposed to-that was the affidavit of defendants’ attorney, his clients being also absent, that the allegations of the petition were not true, which last was; supported by numerous other affidavits of the same tenor. These affidavits were inadmissible, and should not have been received or considered by the court, and the bill of exception of plaintiffs was well taken-

The counsel for plaintiffs assimilate the proceeding by rule to the motion to dissolve an injunction on the face of the papers, which is in the nature of a demurrer, and admits for the purposes of the motion all the alleged facts to be true. The defendants in the rule make the distinct issue that the facts and allegations are not true. It was held that a. “ motion to dissolve an injunction on the ground that the allegations in the petition are not true must be referred to the merits-.” Williams vs. Douglass, 21 An. 468. So we think an answer to the rule nisi denying the truth of the allegations is in effect an answer to the merits, and can only be heard after the injunction has issued, and upon the trial of the merits.

Our attention has been directed by the defendants’ counsel to the case of Newgass vs. the Judge of the Superior District Court, very recently decided, as sustaining their position, assumed in oral -argument, that no appeal lies from a refusal of the lower court to grant- the injunction,, but that decision does not go so far as that.

The court, after remarking that the case of the State vs. Lewis, 7 Martin, 457, is the only instance in our reports in which an appeal from a refusal to grant an injunction was declare! to be allowable, say that in N.ewgass’s case the judge had simply refused to graift an ex parte order upon an ex parte showing, and therefore there was nothing for this, court to.revise. The judge rendered' no judgment and made no order* and hence there was no ground for an appeal. And further on, at the conclusion of the opinion, it is said: “Had'what is called a rule nisi been taken, and after the healing the judge'had refused the injunction, * * * a different question would be perhaps presented.” 27 An. 672.

That is the question presented in this case. The judge of the lower-court erred in receiving testimony' which was applicable only to the-merits of the case, and -which can only- be 'heard on the trial of the merits. In overruling his decision we can-not order that an injunction be granted, because that would be to. assume original jurisdiction, but it is. our duty to remand the case in-order that he may consider and determine whether the facts and allegations contained in the petition, and the affidavit and bond, are sufficient to justify the issuance of the writ, prayed for. Should he then refuse the injunction, his action can be reviewed by this court.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and the suit be remanded thereto for further proceedings according to law, the appellees to pay-costs of this court.


author: by Marr, J.

text:
    No. 6523.
    State ex rel. P. Bouron vs. Judge of the Fifth District Court.
    A judgment was rendered in concurso, without fixing the amount due to each claimant. Afterward, one of the creditors, on a rule for that purpose, obtained a decree-fixing the sum due him, which was over five hundred dollars. One of the parties in interest applied for a suspensive appeal. It was refused, on the ground that-, the decree was an interlocutory one.
    Held — That the decree was final, and that from all final decrees, where the sum involved is over five hundred dollars, a suspensive appeal lies.
    APPEAL from the Fifth District Court, parish of Orleans. Cullvm, J.

      H. D. & Charles G. Ogden, for relator. Hornor & Benedict, for respondent.
   The opinion of the court was delivered

by Marr, J.

In the suits .of Samuel Lee vs. F. F. Kendall, No. 4815, and Philip Bouron vs. the same, No. 4816, certain property wa-s seized and soldi, under executory process, and the proceeds were in the hands 'of -the-civil sheriff for distribution. Interventions and third oppositions were filed by several persons, among others, Peter Markey, claiming privileges on the proceeds. The suits were consolidated, and, in June, 1876* a judgment was rendered, fixing the rank in which the creditors were to be,paid, from which judgment a devolutive appeal- was taken.

This judgment, rendered in concurso, did nofrfix the amount to be paid to Markey, and on the twenty-first of July, his counsel, suggesting to the court that the judgment in his favor Was- final and executory, and that he had demanded of the civil sheriff payment of the amount due him out of the proceeds in his hands, which "Steisheriff refused, and to which the plaintiffs in the suits refused to consent, moved a rule on Bouron, Lee, and the sheriff, to show cause why the costs should not be .fixed according to law, “and why the sheriff-should-not be ordered to ■pay the intervenor the sum of six hundred and fifty dollars out of .the proceeds of sale herein with costs of this rule.”

On the twelfth of September judgment was rendered on this rule, ¡signed on the twelfth of October, by which “ it is ordered that the said rule be -made absolute, and, accordingly, that the costs herein be .taxed according to law, and that the sheriff be ordered to pay to Peter Markey, intervenor herein, the sum of $610 76 out of the-proceeds -of sale herein with costs of this rule.”

Bouron, by petition, took a suspensive appeal from this judgment, and Markey moved to set it aside, which was done on the grounds that the judgment was interlocutory and not final, and that judgment having been rendered on the merits in favor of Markey, and plaintiff not having appealed suspensively from that judgment, can not stay and prevent the execution of the fieri facias upon that judgment by an appeal as attempted. Bouron prays this court to grant a writ of mandamus, requiring the judge of the Fifth District Court to recognize and a-llow the -suspensive appeal taken by him and a writ of prohibition forbidding the said judge from further proceeding in the cause and from causing the execution of the judgment appealed from.

It is manifest that something remained to be-done after the judgment in concurso before Markey could demand of the sheriff any precise amount, and the judgment on the rule of the twenty-first of July, the judgment appealed from, did that which no other judgment in the cause has done — it not only fixed the amount, but ordered the sheriff to pay that amount, $610 76, out of the proceeds in his hands. This judgment is final between the parties, and it disposes of the whole controversy.

In determining whether a party is entitled to appeal from a judgment no inquiry can be made as to what may be the effect of that appeal upon -another judgment, rendered at a different time, between the parties In the same cause. The questions are: First — -Is the judgment from which an appeal is demanded final ? Second — Is the amount in controversy above the sum of five hundred dollars.

First — -We have here a judgment which terminates the controversy,, and it is signed by the judge. It is therefore a final judgment in every sense of the term.

Second — This judgment is for $610 76, which is above the appealableamount. .....

All that the constitution requires for the complete jurisdiction of this' court is realized and exists in this case, and the relator is entitled to the relief which .he asks at-our hands.

It; is-therefore ordered, adjudged, and- deoreed that the writs of mandamus and prohibition herein issued be made-peremptory as prayed for,, and that the respondent pay the costs of this proceeding.


text:
    No. 5425.
    R. N. Ogden vs. A. Marchand.
    The holder of a negotiable note, who hasboughtit in goodfaith, and before its matu--! rity, acquires a valid title to it, though it be shown that the vendor of the note was not its'owner, and had fraudulently disposed of it.
    Where an agent lujs fraudulently sold his principals property,and embezzled its pro- " eeeds, and the principal afterward accepts from the agent something in compensation for the embezzled proceeds, he thereby ratifies the sale made by the agent, and estops himself from any recourse against the innocent purchaser of his property.
    1 APPEAL,from the Fifth District Court, parish of Orleans. • Cullani, J.

      8, P. Blanc, for plaintiff and appellant. Homor & Benedict, for-defendant.
   The opinion of the court was delivered by

Manning, C. J.

Plaintiff sues to recover a note for eight thousand dollars, dated November 4,1872, and payable one year thereafter to his own order and by' li-im indorsed, which was secured by mortgage executed simultaneous with the note by E. B. Livaudais, and which, says the act of mortgage, was “ handed over to said Livaudais, present and acknowledging receipt thereof.” He alleges that this note is in the possession of the defend- ■ ant, who obtained it in bad -faith, and under circumstances in themselves suspicious, and calculated to'put him on his guard; that the note had-been left by Mm in the possession of the - notary who drafted the act of' mortgage, for sale and- delivery- through petitioner’s brokers to one Rochereau, but that A. D. Yoisin illegally and-wrongfully took possession of the note, used it-for his- own purposes, and ■ fraudulently delivered it to the defendant, whom he charges with knowledge of Yoisin’s ■ condition, and of his purpose to defraud plaintiff.

Defendant pleads the general issue,' and specially avers that the note is-negotiable commercial paper, transferable by delivery, and that-he-purchased it for a valuable consideration, in good faith and without suspicion of any defect -of title, before maturity. He also avers that plaintiff has received a consideration for the note.

, It appears that the, purpose of plaintiff in executing the note and mortgage was to take up a note of two thousand dollars which was secured by mortgage on his lots; and also to obtain' a- loan, and his im tention was to have that note and the mortgage which secured it canceled before the mortgage now before us was recorded. Yoisin & Livaudais, a firm of brokers, were employed by him to carry out this .purpose. The mortgage was executed in favor of and accepted .by E. B. Livaudais, one of the members of that firm, and the note went into their hands. Two days afterward, viz.: on the sixth of December, the firm was known to be ruined, and Yoisin had disappeared. Shortly .after, plaintiff learned that his note for eight thousand dollars was in possession of the defendant, and his note for two thousand dollars was unpaid and outstanding against him.

Most of the testimony is directed to the attempted proof by the plaintiff of bad faith on the part of the defendant, and of the latter’s knowledge of the fraud perpetrated by Yoisin, and of the precarious •condition of the firm of Yoisin & Livaudais, but it is manifest that the defendant had not ceased to believe in their solvency and fair dealing, as he was about to enter into a new transaction with them, and the plaintiff evinces his own confidence in them by trusting them with a negotiation of his own mortgage note.

The defendant rebuts the. charge that this note was received by him from Yoisin in part payment of an indebtedness by the latter of twenty - seven thousand dollars or thereabouts, by the proof that he paid for the note, and produces the check for sixty-five hundred dollars on the Citizens’Bank, dated December 5,1872, in favor of Yoisin & Livaudais, Which conforms both in date and amount to the other proof of the negotiation and purchase. But it is not necessary to apply here the universally recognized doctrine that the purchaser of negotiable paper before maturity acquires a good title, because, admitting all that the plaintiff alleges, he subsequently treated the defendant as the Iona fide holder of the note by accepting from Livaudais a composition of the claim he had against the firm of Yoisin & Livaudais by reason of this sale or transfer of the note to defendant. Livaudais gave plaintiff pledges from which he realized twenty-six hundred dollars, and mortgage notes upon two pieces of property for the residue of his claim against the firm. This was a condonation, so to speak, of Yoisin’s alleged fraud, and a settlement of the indebtedness occasioned by his illicit act, and this receipt and sale of pledges, and of the transfer of the mortgage securities, precludes the idea that the note held by Marchand was expected at that time to be recovered, and is in fact and in law a bar to that recovery.

It is true it turned out afterward that the securities thus received were worthless, because the mortgage securing them was primed by others for the full value of the property. . But that should have been ascertained by plaintiff at or before his acceptance of them. He can not confirm and ratify Yoisin’s act by making a settlement with the firm, in which it appears he was assisted by Marchand, and afterward disown the settlement and proceed against the latter. Besides, if that settlement was merely provisional, as plaintiff attempts to show, he should have returned the money and securities received by him from Livaudais before or at the instant of renewing his claim against Marchand for the note. He did offer to give Marchand the securities, but we find no mention of any offer to give him the money received from the sale of the pledges.

It is not' equitable that the defendant should suffer from the misplaced confidence of the plaintiff in the brokers to whom he had intrusted the negotiation of his paper, and the plaintiff has no cause to complain, since he voluntarily treated the brokers as his debtors for the amount realized by them from the negotiation.

It is therefore .ordered, adjudged, and decreed that the judgment of the lower court is affirmed with costs in both courts.


author: Spencer, J.

text:
    No. 5141.
    Paul Mack vs. C. E. Fortier et al.
    'Tlie maker, and the indorser oí a promissory note, although not technically debtors in solido, are yet liable, each, ior the whole debt.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      J. H. Grover, for plaintiff and appellee. Ar. H. BUjhtor, for defendant.
   The opinion of the court was delivered by

Spencer, J.

This is a suit against Charles E. Fortier as maker and John Sbisa as indorser of a*promissory note. The defense is a general denial by both defendants.'

’ Upon trial there was judgment for plaintiff against both defendants in solido.

Defendants moved for a new trial, on the ground that the 'judgment •erroneously condemned them in solidó. The motion was refused, and defendants took this suspensive appeal. , . , ' .

The maker and indorser each owe the whole amount of a negotiable promissory note to the holder, and he may pursue either or both for the whole. This may not be technically a solidary, obligation, but plain-’ tiff was entitled to a judgment against each of them for the entire debt,, and that end is secured and expressed by the words ‘‘ judgment insólido.”

No damages are asked for frivolous appeal.

The judgment is affirmed with costs in both courts.


text:
    No. 6114.
    P. E. Briant vs. G. Lyons, Sheriff, et al.
    Idle homestead act, which exempts one hundred and sixty acres oí land, etc., irom seizure and sale, is in favor of a debtor who owns the land, and who has a family, dependent on him for support. The benefit it confers is strictly personal.- It is likewise'in derogation of common right and, hence, does not descend from the-debtor in favor of his widow, or his children.
    APPEAL from the Fifteenth Judicial District Court, parish of Terrebonne. Beattie, J.

      N. FT. Bight.or, for plaintiff and appellant. G00Ü& & Winder, for defendants.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff executed a mortgage on the twelfth of April, 1873, to'secure' Nalle & Cammack, and other parties, the payment of four notes, each for 12222 22, with interest. The property mortgaged is the sugar plantation of plaintiff in the parish of Terrebonne, and contains 417 acres of land. After the maturity of the notes, and upon their non-payment, executory process-was issued at the instance of Nalle & Cammack, who had become the holders of all of the notes, and on the seventh of March, 1874, Briant, the debtor and mortgagor, enjoined the sale of a' part of the mortgaged property, viz.: 158 acres, upon which is situated his residence, upon the ground that he is “ a married man and the father of a family dependent upon him for support; that he occupies as a’resi-' dence and bona fide owns the dwelling-house and out-buildings and' residence appurtenances upon the lower portion of the plantation,”' which does not exceed two thousand dollars in value, and that such part, hnd quantity of his property is exempt from seizure and sale. ‘

Defendants answer that the property, the sale or which is enjoined/ exceeds in value the sum above mentioned, and that Briant specially, and expressly waived,and renounced any and all exemptions in favor of' debtors under'the homestead laws, and prays a dissolution of the injunction with" damages.

When the litigation had reachéd this point, the plaintiff died, and on Ipril 19,1875, his widow, as administratrix of his succession, filed á supplemental petition, making herself a party to the suit in her representative capacity, and renewing the prayer of the original petition, to wlpcli defendants reply, that if the debtor had any right to the exemption claimed, it did not survive him in favor of the representative of his succession.

The act of 1865, called in common parlance the homestead law, exempts from seizure and sale under execution one hundred and sixty acres of ground and the buildings and improvements thereon, occupied as a residence and bona fide owned by the debtor, having a family * * * dependent upon him for support.” Acts of 1865, p. 52; Revised Statutes of 1870, section 1691.

The debtor in this case is Paul E. Briant, who is dead, and who no longer fulfills, or can fulfill, the requirements of the act. The property exempted must be owned by the debtor and occupied as a.residence, and he must have a family dependent on him for support. It can be plausibly urged that the intention of the act was to provide a home for the debtor and his family, with sufficient land to insure them against want, and that this beneficence of the Legislature will be defeated and will.be inoperative if, his death occurring during the pendency of the litigation touching the homestead exemption, no right survives to his representative to continue that litigation, and enforce, in behalf of those who were dependent on him for support, the law provided for himself. The family will thus be left homeless when a home is most needed, and the fruit offered by the lawgiver to the poor debtor will be turned into bitter ashes before his poorer family.

Such an appeal would be addressed to our compassion and benevolence. It is our judgment that is invoked in legal contestations. It'is a well-settled principle that laws of the nature of this homestead act are in derogation of common right, and can not be enlarged by construction. It may well be doubted whether such laws, like most indiscriminate charities, are beneficial to the general public, or even to those for whose relief they are specially designed. However that may be, we can not apply the act to any other than those designated descriptively in it, and the representative of Briant’s succession does not come within its terms.

In Calvit vs. Hoy, decided in 1874, and not reported, the plaintiff was a woman who during her widowhood had acquired by purchase the land the exemption of which was claimed, and who was the head of her family with two children, alleged and held to be dependent on her fqr support. Her claim of the benefit of the exemption was sustained. Opinion Book No. 43, p. 358.

That case is easily distinguishable from the one at bar, for here the widow does not own the property, neither is she suing in her personal capacity, but as representative of a succession to enforce a personal and’ inchoate right of the decedent, which was imperfect and unestablished at the moment of his death.

Another law makes another provision for the widow of a decedent who is in necessitous circumstances. Another forum than that from which this appeal comes must hear that claim, and if we may assume that the mortgaged property is all that enters into the effects of the succession, such claim could not be satisfied without its sale, nor until the proceeds are ready for distribution.

The judgment of the lower court was that the injunction be dissolved without damages, and it is now ordered, adjudged, and decreed that the judgment of that court be and it is hereby affirmed with costs.

¡De Blanc, J. — On account of affinity, I recused myself in this case.


author: De Blanc, J.

text:
    No. 5354.
    J. Wallis vs. the New Orleans and Carrollton Railroad Company.
    A1 party can not be held in damages tor allegations set up by lxim in his pleadings In a suit, which assail the character of the other party, when it appears that the circumstances were such that he might reasonably have believed that the allegations were true.
    APPEAL from the Superior'District Court, parish oS Orleans. HawIcins, J. Jury trial.

      B. King Cutler and A. J. Steele, for plaintiff and appellee. L. JS. Simonds, for defendants.
   The opinion of the court was delivered by

De Blanc, J.

Plaintiff was one of three drivers of car No. 52, belonging to defendant. He was discharged as such in October, 1872, and on the fourteenth óf said month brought suit in the Seventh Justice’s Court for the wages then due him. In the answer to said suit the company alleged that plaintiff had violated his duty, in collecting fares and appropriating them to himself. That answer was filed, but was not read in said court.

' The case was tried, and decided against defendant. It appealed from that decision to the Third District Court, and in the last-mentioned court, and for the first time since it had been filed, the answer already referred to was read, in presence — the plaintiff says — of from seventy to one hundred persons, many of whom were his friends.

^ On the twenty-seventh of November, 1872, the justice’s decree was affirmed by the Third District Court, and nearly one year after, on the fifteenth of September, 1873,. Joseph Wallis brought suit against defendant for five thousand dollars, on the ground that, without probable cause, it had published or caused to be published, in two courts and elsewhere, what plaintiff terms a false and malicious charge.

’ ’This case was tried by a jury, and they returned against defendant a verdict for one thousand dollars. From the judgment based on that verdict the company has appealed. It contends that said verdict and judgment are contrary to law, as there was no proof that those who represent it ever entertained any malice toward plaintiff, and none can •toe inferred from any of their acts.

Plaintiff testified ip substance that “ he knows — he did not say how— he was injured and could not get employment in consequence of the •charge thus made against him. He heard — he does not say from "whom — that said charge was communicated to the other railroad companies. He applied, but in vain, to them and to several parties. No one told him he was a thief, but merely that they did not want to employ him.”

In his cross-examination he said: '• I am out of employment about, three days (meaning, we presume, since about three days); I was, after my discharge, engaged during five months as a carriage driver, and as a stage driver during one month and a half. I did not take a nickel belonging to the company; no witness swore that I did.' Kinly, on whose report I was discharged, declared in court that I am not the man who received and appropriated the fare. The slander was not circulated generally, but only to -railroad companies.”

H. A. Harding, a witness of plaintiff, testified that “ he knows him ; that he is an honest man; and that the accusation made against him has been circulated throughout the city, among the owners .of hacks and carriages.” How he learned that; whether directly from these-persons, or otherwise; what influence and effect the report had or may have, had; whether it was believed, and injured plaintiff, or disbelieved and denied, he does not say.

Plaintiff alleges that the charge made against him has prevented him from obtaining a position; he did not ¿rove either by his own declaration, or that of others, how long he was without employment. From his own lips we have the acknowledgment that, after his discharge, he was — during more than six months — engaged as a driver, and the most •of the time in this city, at the veryjspot where, as he pretends, he could find no employment on account of the slanders published and circulated •against him.

If railroad officers and owners of hacks and carriages were warned against him; if that warning was the cause that he could not procure a position, why is it that these officers and owners were not summoned ? They might have sworn to the verity of the facts alleged by him, while • he and the only witness who appeared in his behalf testified as to mere impressions, contradicted by his- own declaration on the trial, that “ he was about three days out of employment.” -

When and where — for the first — and, so far as we can ascertain, for the last time — was the denounced charge published against him ? In the Third District Court, in November, 1872; not before, not elsewhere-He was then' surrounded by strangers, who, perhaps, did not know his-name, and by friends who, no doubt, were favorably disposed toward him. They heard the alleged slander; they heard its contradiction; and that slander fell harmless at their feet, a few moments after it was published.

As long as he does not expose it, a man’s character is sacred, and he who 'assails it without'cause should suffer; but a court can not look either out or beyond the record, and when, in that record, it finds but vague and unsupported opinions, testified to by an interested party and a friend of that party, a court can not justly punish. Were we to decide on impressions, might we not pause and inquire how it occurred that the date of the imagined wrong and that of his action for redress are so ' distant from one another ?

As to any express or implied malice on the part of defendant toward plaintiff, when and where was it shown? In this great and impoverished city, where so many are daily seeking employment, the compan/ selected plaintiff out of the many, gave him a position which, to be accepted, had but to be tendered, never addressed him a word of reproach, and only discharged him on the imparted information that he had been unfaithful ' and had violated his duty. Is there any company or any agent who ' would have acted otherwise ?

Who informed against plaintiff? Was it a rival, an enemy, an applicant for the position he held ? It was not, for that position was vacated and he did not take it. The fact that he was called as a witness and swore, as declared by plaintiff, that he was not the driver who received and retained the fare, shows that he was not prejudiced hgainst him, but does not offset the legal effect of his previous declaration, when— without promise of reward, without hostility toward plaintiff — he pointed him out to defendant’s agent and told him: “ There is the man who took the nickel.”

The cases referred to by plaintiff’s counsel and reported in the sixth and eleventh Annuals are different from that presented to this court. In the first, the captain of a vessel was accused of having stolen and attempted' to sell freight intrusted to his care. This accusation was unwarranted, had not even a pretext to stand upon. In the other case, a newspaper reporter had not merely alluded, as was his right, to' plaintiff’s arrest and the circumstances of that arrest, but had assumed and asserted his guilt, and accused him of other crimes, without the least foundation or excuse.

The doctrine which should govern the court in such controversies is as simple as sound. Was there a probable cause to justify the charge ? Was the charge made under the honest-and reasonable belief that it was true ? If so, no damages can be recovered. Applying.that doctrine to this case, we can not maintain the verdict of the jury, for it is evident that the company acted upon-an- honest'and reasonable belief, and not through that wanton and wicked disposition, grossly negligent of the rights, reputation, and feelings of others. .

It is therefore ordered, adjudged, and' decreed that the verdict of the jury be and is hereby set aside, the judgment thereon based annulled, avoided, and reversed, and' that there be judgment, in favor of defendant; the costs of both courts to be paid by plaintiff and appellee.


text:
    No. 5332.
    Nelson McStea vs. Rotchford, Brown & Co.
    In a suit brought to revive a judgment uo plea will be entertained, and no evidence considered, which assails the validity of the judgment sought to be revived.
    APPEAL from the Fourth District Court, 'parish of Orleans. Lynch, J.

      T. Gilmore & Sons, for plaintiff and appellant. T. S. McCoy,and G. A. Breaux, for defendants.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff seeks to revive a judgment rendered in his favor in 1861 against the defendants, and they resist the revival Upon the ground that the original judgment is null for want of proper citation.

Prior to the passage of the act of 1853 judgments weje''imprescriptible. They never died. That act imparted to them the quality of mortality, -and eo instante prescribed the mode of averting extinction — •“ provided, however,” the act reads, “that any party interested in any judgment may have the same revived at any time before it is prescribed by having a citation issued according to law to the defendant or his representative from the court which rendered the judgment, * * * * upon whom the citation shall be served, unless the defendant or his representative shows good cause why the judgment should not be revived.” Revised Statutes of 1870, sec. 2813.

Without that act no petition to revive was necessary. The judgment existed, subject to attack at, the times and for the defects specified in the laws pertaining to that subject. The act did not.profess to provide, nor was it intended to provide, a new mode of attack, because of alleged nullities. Its title is “ an act relative to the prescription of judgments.” Acts 1853, p. 250. Its purpose was to assign a limit to the duration of judgments, and to provide for the prolongation of them existence on condition of certain proceedings being taken. It was not intended to establish a new mode of revising, setting aside, or reversing judgments-Article 556 of the Code of Practice had designated tlie four modes by which this was to be done.

It has been held that the act of 1853 is not a statute authorizing a proceeding to annul a judgment on the ground that it was rendered on insufficient evidence. Drogre vs. Moreau, 23 An. 173. In that case the defendant urged that the petition for revival is insufficient because it does not mention the parish of ;her domicil, nor allege that the indebtedness upon which was based the original judgment inured to her benefit, she being-a married woman, and because it does not contain aprayer that she be authorized to stand in judgment. After remarking that these objections, if of any weight, should have been urged before the joinder of issue, the court say: “We do not think, however, that averments of that kind are essential on a simple application to revive a judgment. The law simply provides the mode of interrupting the prescription of a judgment. It does not require the production of the same evidence upon which the judgment was originally obtained.”

In Carondelet Navigation Company vs. St. Romes, idem 437, the application for revival was resisted on the ground of insufficient process, not', that the process in the suit for revival, but the process in the original suit, was insufficient. The averment was that the defendant “ was not legally-cited, and that she never signed, nor authorized anyone to sign for her, the obligation sued upon,” and upon which the original judgment was based. The court rejected the plea, saying “ the object of this proceeding is merely to keep in force the judgment rendered heretofore by interrupting prescription.” The defense in the case at bar is of the same character, and must be disposed of in the same manner.-

The sole purpose of the act under review is to provide for the extinction of judgments by lapse of time, and to enable parties holding them to avert this consequence by proceeding in the manner prescribed in it. The prescription of conventional mortgages is averted by their reinscription. The prescription of judgments must be averted by a suit for revival with service of citación. The j adgment of revival rendered in such suit does not cure any defect in the original judgment. It does not validate a judgment which was or is subject to attack because rendered on insufficient evidence or insufficient process, nor does it affirm or ratify the original judgment. It can not be pleaded in-bar of an-action of nullity for any defect in the original judgment. Unquestionably the plea of payment could be heard in this action, because that„ like the plea of prescription, if successfully maintained, would show that the judgment is extinct. Perhaps a total and entire absence of citation upon any one might be pleaded, if we can suppose a judgment to have been rendered without any process whatever, but a defense, the object of which is to impugn the validity of the original judgment, can not be, heard in this proceeding, which is taken solely because of the statutory declaration that unless it is taken the judgment will expire.'

The testimony of plaintiff on the trial of this suit shows that the original judgment is entitled to a credit.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court is avoided and reversed, and that the judgment of plain-’ tiff against defendants, described in the pleadings as having been rendered by the Second District Court of New Orleans on tenth of February,’ 1864, and signed on seventeenth of same month and year, is hereby revived, subject to the credit of four thousand three hundred ánd; sixty-eight dollars on the twenty-third of December, 1862, and that the defendants pay costs in both courts.


author: Spencer, J. Manning, C. J.

text:
    No. 6477.
    Stoughton Cooley vs. H. H. Broad et al.
    When the l-eeoi'd of appeal contains no note of the evidence offered and rceeived.in, the court below; and no statement of facts agreed on by the parties, or made by the inferior judge; and no bill of exception, or assignment of error, the appeal will be dismissed. And the usual certificate of the clerk of the lower court, that such a record contains a copy of all the evidence, etc., offered and filed in the lower court, is not sufficient to maintain the appeal. '
    APPEAL from the Fifth District Court, parish of Orleans. Onllom, J.

      JZornor c& Benedict, for plaintiff and appellee. F. D. King, for appellant.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff moves to dismiss this appeal of defendants, on the following' grounds;

First — That the record does not contain any written note of the evidence offered and received on the trial.

Second — That it does not contain any statement of the facts agreed upon by the parties, or made by the judge.

Third — That it does not contain any bill of exceptions, or assignment of errors.

“ The Supreme Court can only exercise its jurisdiction in so far as it shall have knowledge of the matters argued or contested below.” C. P.895.

The Code of Practice has provided carefully for all the phases which a trial below may assume, and has provided the means of bringing to the notice of this court all questions of law and fact in appealable cases.

Article 601 provides that “ either party may require the clerk to take dawn the testimony in writing, which shall serve as a statement of facts, ¿ the parties should hot agree to one.”

’ Article 602 provides: “ When the depositions of witnesses have not been taken in writing in the inferior court, the party intending to appeal, or His advocate, must require the adverse party, or ¿is advocate, to draw up, jointly with him, a statement of the facts proved in the cause, and this statement thus drawn up and signed, either by the parties or their advocates, shall be annexed to the record or transcript of the same transmitted to the Supreme Court.”

Article 603: “ If the adverse party, when required to do so, refuse to jóin in making- out the statement of facts, or if the parties can not agree as to the. manner of drawing the same, the courts, at the request of either, shall make such statement, according to their recollection of the facts, or from the notes they have taken of the evidence.”

Article 896 : “ If, therefore, the copy of the record brought up be not duly certified by the clerk of the lower court, as containing all the testimony adduced, the Supreme Court can only judge of such cause on a statement of facts, prepared and signed in the manner directed above, or on a written exception to the opinion of the judge, or on a special verdict, and in the absence of all these, it shall reject the appeal with cbsts; but this is to be understood with such modifications as are contained in the following articles. ”

Article 897: “ The appellant who does not rely, wholly or in part on a statement- of facts, an exception to the judge’s opinion, or special verdict to sustain his appeal, but on an error of law appearing on the face of the record, shall be allowed to allege such error, if within ten days after the record is brought up he files in the Supreme Court a written paper, stating specially such errors as he alleges; otherwise his appeal shall be rejected.”

The record in the case at bar has the usual certificate of the clerk appended.to it, in which he certifies “that the foregoing fifty-six pages contain a true copy and transcript of all the documents filed, proceedings had, and evidence adduced, etc.”

If the motion in this case to dismiss rested upon the insufficiency of the clerk’s certificate, it certainly could not prevail. That certificate certifies that the transcript is complete; that all the pleadings, proceedings, and evidence.are contained in it. But when we open the record to examine it, as we are bound to do under that certificate, we find nothing which “ gives us knowledge of the matters argued or contested belosv.” We find therein certain pleadings and copies of contracts, notes, pro-. tests, notices of protest, and other papers. But v7e find no note or memorandum showing which, if any, of these various documents were offered as evidence on the trial below7, or received or considered by the court. We find no “ statement of the facts proved in the cause,” mádé either by the parties, their advocates,.or the judge. We find no-special-verdict, bill- of exceptions, or, assignment of errors. How can- this court undertake to decide whether the judge a quo made a wrong judgment or not unless it have before it a- statement, in some form, of the facté.proven or considered by him ? Are we to presume that all the documents, etc., appearing in the record were offered in evidence,.and- received- and considered by the court ? Every lawyer knows- that records are largely filled up with papers which are not offered; or if offered, not received in evidence. Every paper annexed to a plaintiff’s petition, or defendant’s answer, is necessarily copied into the record, but this is no, proof that such paper was either offered or received in evidence.

The clerk’s certificate that a record contain® “ all the evidence adduced” in a cause, even if literally true, would- not enable1 this court'to" review the judgment of the lower court, in the absence of a note of evidence, or statement of facts, or some memorandum in writing as- to what was submitted to the judgment of the court, for while it might be true-that the record contained “ all the evidence adduced,” it might be equally true that it contains many papers and documents which were either not offered, or being offered were not received in evidence. Such a certificate by the clerk does not enable this court to know the precise facts upon which the lower court acted, and without such knowledge this court' can not proceed. It is clear, therefore, that such a certificate can not supply the place of a note of evidence or statement of facts.

Under our law it is well settled that the clerk can only certify copies of his records, and that his certificate of any fact, not appearing by the record, is of no. avail. He can not certify, that a plaintiff’s petition contains certain allegations, but he can certify a copy of" that petition. As to what it contains, the petition must speak for itself. So a clerk’s certificate that a record contains “ all the evidence adduced ” is ineffective, if that record does not of itself show what evidence was adduced. In' our opinion the clerk can not “ duly certify ” a record “ as containing all the evidence adduced ” as contemplated by article 896 of the Code of Practice, unless there is in that record some proper note or memorandum of the evidence offered and received. If there is such note in the record, then the clerk may well certify that the record contains copies of the instruments of evidence named in it. To hold otherwise would, it seems to us, put litigants at the mercy of the memory of clerks, and abandon all certainty in judicial proceedings. These' certificates which clerks append to transcripts are most frequently written weeks, often months, after the case is tried. Now, there being no note, or memorandum, of the evidence offered and received, to be found in the record, does not the clerk, of necessity, when he certifies that record as containing “aE the evidence adduced,” do so from mere memory? Suppose witnesses to have testified orally in court, and that their testimony was not reduced to writing, might not the clerk, after the lapse of weeks or months, forget this, and innocently certify .the record as containing “ all' the evidence adduced.” But if there is in the record, as part of it, a-writing made at the time of trial and under the supervision of the parties and the court, showing what evidence was offered, then the clerk certifies what the record shows of itself. If the testimony has not been noted in writing, its place can only be supplied by a statement of facts made by the parties or the judge. The clerk has no power, either directly, or by his certificate, to supply this statement.

We therefore conclude, that as an examination of the record in tins case does not give us “ knowledge of the matters argued or contested below,” and does not put us in possession of the facts upon which the judge a quo based his decree, we are obliged to dismiss this appeal.

It is therefore ordered that this appeal be dismissed at the cost of appellants.

Concurring- Opinion.

Manning, C. J.

I concur in the judgment dismissing the appeal. The certificate of the clerk is in the usual form; i. e., that the foregoing pages contain a true and complete transcript of all the proceedings had, evidence adduced, and all the documents filed upon the trial of the case. In the absence of any allegation impeaching its truth the certificate is-conclusive — pro vertíate accipitwr. Neither party questions its truth. There is no suggestion of diminution of the record, nor application for a writ of certiorari.

In Reeves vs. Adams, 5 La. 288, it was said, the Supreme Court will consider the entire case, and decide on its merits, if either the clerk or judge a quo certifies that the record contains all the documents and evidence on which the cause has been heard and determined.

In Erwin vs. Orillion, 6 La. 205, this doctrine was repeated, the form of the dictum there being, that the certificate of the clerk alone that the record contains a copy of all the documents on file, a transcript of all the proceedings had, and all the testimony adduced, authorizes the Supreme Court to examine a case on the merits. See, also, Cammack vs. Gordon, 20 An. 213, and Louisiana State Bank vs. Cammack, 21 An. 133.

I recognize the correctness and binding force of these decisions,-and am prepared to examine this case on its merits. But when I turn to the record, I find no note of the evidence that was offered. There is a mass of documents copied in the transcript, but nothing to indicate that they are a part of the testimony. The appellate court will not notice documents that are copied in the transcript, if not referred to and indicated' in the note of evidence, although they may be annexed to the answer.. McAuliffe vs. Destiehan, 9 Rob. 466.

It is the duty of the appellant' to see that the record contains all the evidence on which the case was tried. Magloire vs. Barbin, 25 An. 667. And it is not the duty of the clerk to take it in writing, unless required, by one of the parties to the suit. O. P., art. 601; Bowman vs. Janes, 6 La. 124. There is no statement of facts, which can alone supply the-want of the evidence as received, nor is there any assignment of errors* nor bill of exceptions. There is nothing which can inform the court of' the merits. We can not reverse the decision of the lower court, as the-appellant desires, because the record filed by him does not afford us any means of ascertaining that it is wrong. We can not affirm it, though the legal presumption is in favor of its correctness. When there is no note of evidence in the record of appeal, it will be presumed that the judgment of the court a qua was properly rendered, and upon evidence properly before it. Graham vs. Rice, 23 An. 393; Simmons vs. Howard, idem, 504; Smith vs. New Orleans, 24 An. 20.

The party who desires to have a judgment, of which he complains, reversed, should have the testimony reduced to writing, or a statement of facts made; otherwise the presumption is that appellees fully made out their case below. Johnson vs. Spearing, 15 La. 232.

Dismissal of the appeal is the only action the court can take, and it has. been already so adjudged. In every appeal the evidence on which the judge acted must be brought up, or the appeal will be dismissed. Jones vs. Neville, 9 Rob. 478.


author: Marr, J.

text:
    No. 5292.
    Mrs. M. W. Graham vs. Mrs. Z. A. Thayer.
    Where a note is executed by a married woman authorized by her husband for property bought by her, during marriage, and it is not shown that she is sepai’ate in property, nor that she administered her paraphernal property, nor that she was. a public merchant, nor that the property inured to her separate benefit, she can not be held liable on the note. Such a note is a debt of the community, inasmuch as the property, the consideration of the note, belongs to the community. For-such a debt, a wife, such as is sued herein, is incapable of binding herself. The-husband alone is liable.
    APPEAL from the Fifth District Court, parish of Orleans. Oullom, J..

      Hunton & Grover, for plaintiff and appellee. H. D. Ogclen, for defendant.
   The opinion of the court was delivered by

Marr, J.

This is a suit against a married woman on a promissory note made byr her to her own order, and by her indorsed in blank, with the authorization of her husband.

Defendant, after pleading the general denial, answered that the note •sued on, and a similar note, were given for real property purchased by her from plaintiff. That finding she could not meet the notes, she con.-sented to abandon the property in full payment; that the property was «old with her consent; that she received no part of the price; that the proceeds were applied to the payment of the two notes, and that this arrangement, as she believed and intended, was in full satisfaction and payment of the whole indebtedness.

Defendant was not present and was not represented at the trial in the court below, and no evidence was offered except the note itself. There was judgment in favor of plaintiff, and the case is before us on the appeal taken by defendant.

The note shows on its face that it was made and indorsed by a married woman, and it is not alleged in the petition, nor does it otherwise appear, that she was separate in property, nor that she administered her paraphernal property, nor that she was a public merchant, nor that the consideration for which the note was given inured to her separate advantage.

The law presumes a community of acquests and gains in every marriage. C. C. 2899 (2369.) Whatever may be purchased during the marriage by husband and wife, or by either, falls into this community or conjugal partnership, except where the separate means of one of the •spouses are used with the intention to make a separate acquisition. C. C. 2402 (2371); Dominguez vs. Lee, 17 La. 296.

The debts contracted during the marriage also enter into the community, except such as are contracted for the separate benefit of one of the -spouses. C. C. 2403 (2372). The debts of the community must be paid by the husband, the head and master of the conjugal partnership. C. C. 2404 (2373). And the wife is forbidden to bind herself for the debts of her husband or of the community. C. C. 2398 (2412). ,

In general, where property is purchased during the marriage, the fact "that it is conveyed to the wife does not create even a presumption in her favor. The property belongs to the community, and she is not bound for the price. Davidson vs. Stuart, 10 La. 148; Beatie vs. Walker, 1 Rob. 431; Smalley vs. Lawrence, 9 Rob. 211.

Property purchased by the wife is presumed to belong to the community, and to be liable for its debts unless the contrary be shown. Webb vs. Peet, 7 An. 92; Clarke vs. Norwood, 12 An. Debts contracted during the marriage are presumed to be debts of the community, and the wife will not be bound unless it be proven that the consideration inured to her separate benefit. Thomson vs. Chick, 19 An. 206; Suris vs. Hima, 20 An. 229.

No proof would be admissible under the allegations of the petition in this case which would charge the wife with liability. The fact that she-purchased the property for which the note was given does not create a. presumption that she was the owner, nor rebut the legal presumption that it was an acquisition of the community, for which she is not permitted by law to bind herself. • ' ^

The judgment of the court below is clearly erroneous, and it would be useless to remand the ease, since there are no allegations in the petition under which proof of liability could be made. We will not conclude the appellee, however, but will afford her the opportunity to establish the liability of the defendant, appellant, if she can do do so, in another suite.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be avoided and reversed, and that there be judgment of non-suit against plaintiff, appellee, with costs in both comts.


text:
    No. 6405.
    State of Louisiana ex rel. T. J. Durant vs. the Board of Liquidators.
    The aot of the Legislature No. 81 of the year 1872, which abolished the free-school fund, and which ordered the bonds composing that fund to be sold by the Auditor and Treasurer of the State, is unconstitutional, and no property in any of those-bonds has been acijuired by any purchaser of the bonds, who may have bought them at a sale made under said act No. 81.
    A PPEAL from the Superior District Court, parish of Orleans. Lynch. J.

      Hcmior & Benedict, for relator and appellant. H. (1 Dibble, Acting Attorney General, for appellee.
   The opinion of the court was delivered by

Spencer, J.

Relator alleges that he is the owner of three free-school- und bonds,”" issued under act (No. 182) of the nineteenth of March, 1857, and of twelve coupons due thereon; that he acquired said bonds by purchase from the State, at a sale thereof made by the Auditor and Treasurer under section six of act No. 81 of 1872, and paid for them with a tlireethousand-dollar “ certificate of indebtedness,” issued to him for professional services, and duly registered as provided in said act; that on the twenty-fourth of January, 1874, the funding act was passed, providing for the funding of the outstanding obligations of the State; that said three bonds and coupons are part of the obligations of the State funda,ble under said act; that the said bonds are of the class designated' as doubtful by the supplemental funding bill, act No. 11 of 1875, page 110; that the Board of Liquidation refuses to fund them; wherefore he prays for a mandamus, which was directed to issue nisi.

The Funding Board, as cause why said bonds should not be" funded for, answer:

First — Generally deny relator’s allegations.

Second — Say the oonds sued upon are not valid obligations of the State in the hands of relator; that the act No. 81 of 1872 is, so far as it -authorized the reissuance of the said bonds, void.

Third — That the State received no valid or sufficient consideration for said bonds, and that the relator is the first holder from the State With full notice.

Upon these issues the case was tried. The court discharged the rule and refused the mandamus, and the relator prosecutes this, appeal.

The testimony shows that the relator purchased these bonds at the sale of the “ free-school-fund ” bonds, made by the Auditor and Treasurer under section six of act No. 81 of 1872, and paid ior them by a certificate of ihdeb:edness ” for three thousand dollars, issued for professional services rendered the State at Washington, and duly registered -according to the first section of said act.

The counsel for the board insist in their brief that this suit is premature, since the supplemental funding act declares that the board shall not fund these bonds until a final decree of the Supre lie Court has established their validity and legality; that tnis decree of the Supreme Court is a condition precedent to the relator’s right to proceed by mandamus; tnat the relator should have first brought a regular suit against tne board and established the validity of his bonds, and then have pro•ceeded by mandamus if the ooard refused to fund them.

. Had this objection been pleaded in limine there might have be n more force in it.. But the defendants chose to go to trial on an answer which put the validity and fundability cf the bonds in relator’s hands at issue. 'The court must try the issues presented, whether in the petition or answer. The law abhors litigation and multiplici'y of actions. As an original proposition we see no good reason why the question of validity of the bonds should not be cumulated with a proceeding for mandamus. .It would at least save costs, diminish litigation, and hasten results.

But there is a more serious defense interposed to relator’s demands. The board alleges that the act No. 81 of 1872, directing, the sale of the free-school bonds is void, as violative of the act of Congress of the fifteenth of February, 1843, and of article 139 of the constitution of the State. The act of Congress above referred to provides (see act of February 15,1843, 5 Stat. at Large, page 600):

“ That the Legislatures of Louisiana and certain other States be, and they are hereby, authorized to provide by law for the sale and conveyance in fee simple of all or any part of the lands heretofore reserved and appropriated by Congress for the use of schools within said States, and to invest the money arising from the sale thereof in some productive fund, the proceeds of which shall be forever applied, under the direction of said Legislatures, to the use and support of schools within the several townships and districts of country for which they were originally reserved and set apart, and for no other use or purpose whatever; provided said land or any part thereof shall in no wise be sold without the consept of the inhabitants of suclj township or district, to be obtained in such manner as the Legisla'ures of said States shall by law direct; and in the apportionment of the proceeds of said fund, each township and district shall be entitled to such part theréof, and no more, •as shall have accrued from the sum or sums of money arising from the ■sale of the school lands belonging to such township or district.”

Section two authorizes Legislatures to protect school lands from waste and for leasing them when deemed inexpedient to sell.

Section three provides that “in case the proceeds acciuing to any township or district from said fund shall be insufficient for tbe support of schools therein, the Legislature is to invest the same in the most secure and productive manner, until the fund becomes adequate to. the permanent maintenance and support of schools within the same,” etc.

The Legislature, by act No. 321 of 1855, created the “free-school fund,” and declared that the same “ shall be held by the State as a loan, and shall be and remain a perpetual fund to be called the ‘ free-school fund.’ ” The act by its thirty-second, thirty-third, and thirty-fourth sections provides for the sale of sixteenth sohool sections, and for paying the proceeds into the treasury, and for paying thereon to the townships six per cent interest according to the act of Congress. Section thirty-six provides that “ all moneys received or to be received as proceeds of sales of sixteenth sections and the interest thereon shall be placed to the credit of the townships and the interest be paid out as the people thereof direct.”

The act of the Legislature No. 182 of 1857 further provided by its first and second sections for the ascertainment of the debt due by the State to the free-school fund, and directs the issue of bonds of the State therefor by the Governor, payable in forty years, and bearing six per cent interest, payable semi-annually, said bonds to be of the denomination of one thousand dollars. The fourth section pledges certain other bonds and the interest to accumulate thereon as a special trust fund for redemption of these school-fund bonds. Section eight declares that the assets of this free-school fund “ shall be a perpetual fund in trust, never to be diverted to any other purpose than that for which it-was and is pledged. The interest accruing on said bonds shall first be applied to the payment of the annual interest due to the various townships in the State, to be ascertained as provided in section nine of this act. The balance of the interest collected shall be placed in the current school fund and applied to current school expenses.” Section nine provides for ascertaining the amount due the several townships, and the mode of calculating and paying the interest thereon. Section twelve provides, that all the bonds belonging to the “ free-school fund,” or which may hereafter belong to it, shall be delivered to the Secretary of State and State Treasurer) , and be by them held in joint custody, and by them delivered to their successors, who shall execute duplicate receipts therefor,, one of which shall be delivered to the Governor and-filed in the executive office. -

The constitution of 1868, article 139, provides tliat the assets of this, “•free-school fund [foilowmg almost exactly the language of the act of 1855 (No. 321)-creating the fund] shall be held by the State as a loan,, 'and shall be and remain a perpetual fund, bn which the State shall pay an annual interest of six per cent, which interest * * * shall be -applied to the support of public schools, and this appropriation shall remain inviolate.''’

lloes the act No. 81 of 1872 violate this provision of the constitution! . and the provisions of the act. of Congress of the fifteenth of February, 1843, as carried into effect by acts Nos. 321 of 1855 and 182 of 1857, of 'the Legislature ?

The relator contends that there is no force in the objection raised 'under article 139 of the constitution, that that article in no way forbids the sale of the particular bonds mentioned in act No. 81 of 1872. That article must be construed with reference to the act of Congress and pre'vious acts of the Legislature above referred to. The act of Congress directs the Legislature to invest the proceeds of these school lands in • sóme “ productive fund, the proceeds of which shall be forever applied, under the direction of the Legislature, to the use and support of schools 'and'for no other-purpose.”

• ‘ The act of the Legislature of 1855 organized the free-school fund and -provided for the sale of the school lands and the payment of the proceeds into the treasury, and declared it “ shall be and remain a perpetual -fund‘to-be called the free-school fund.”

The act of 1857 provided for the ascertainment of the amount due by the State to this fund, and directed the issue of State bonds therefor by the' Governor, payable in forty years, with six per cent'interest, payable semi-annually. The fourth section pledges certain bonds for the redemption of these free-school bonds, and the eighth section declares that the assets of this free-school fund “ shall be a perpetual fund in trust, never to be diverted to any other purpose,” and “ that the interest on these .bonds shall first be applied to the payment of the annual interest due to the various townships'in the State.” Finally, section twelve provides special depositaries for these bonds, to-wit: the Secretary of State and the Treasureiy.who are to hold them “in joint custody.” Now. the constitution repeating, in almost the identical words, the act of 1855, creating this “ free-school fund,” provides that the assets composing said fund “shall be held by the State as a loan, and shall be and, remain a perpetual fund * * * the interest of which shall be applied to the support of public schools, and this appropriation shall be inviolate.”

Does the act No. 81 of 1872 violate this act of Congress and the constitution of the State ? The act of Congress directs an investment, in some “ productive fund.” The Legislatures of 1855 and 1857' carried into effect the act of Congress by creating and organizing the free-school fund. The constitution in substance says tins fund “ shall be and-remain a perpetual fund.” The act 81 of 1872 by its third section “ abolishes” this free-school fund, and transfers its assets to a special, fund created by it for. “ redemption of the floating debt.” By its sixth section it directs the Auditor and Treasurer (the Secretary of State, and. Treasurer being the lawful joint custodians) to sell the bonds belonging. to this fund to the highest bidder for currency or State warrants or certificates of indebtedness. . ¡,-.

In our opinion this act 81 of 1872 not only violates the act of Congress and the legislation thereunder and the constitution, but was an act of spoliation, intended and designed to deplete the treasury of every available asset or fund in it. These school bonds, were supposed to be more salable than Auditor’s warrants and certificates of indebtedness with which the State had been deluged; hence some device to-get hold of them had to be concocted, and act 81 was the result. Some of these bonds were, it appears, not even negotiable; hence act 81 provides and directs that in such case the .Auditor should indorse them with words to the effect that they were hereafter payable to bearer.

The interest of these school-fund bonds was pledged for the payment of the interest annually- due to the several townships for school lands sold. The third section of act 81, directing the Auditor to annually estríñate what would have been due to the free-school fund, if the same had not been abolished, and to levy and collect a tax to pay interest thereon, is not a compliance with the act of Congress, nor does it relieve the measure of the character we have already given it. We regard act. 81 as violating the faith and solemn pledges of the State, that th.e State quoad those bonds was and is a mere trustee, and that the acts of Congress and the legislative action thereunder created obligations on the part of the State, in favor of the inhabitants of the various townships, and other beneficiaries, which the State is not at liberty “to abolish” at its pleasure.

We therefore regard the sale of these “free-school bonds”-held by thei relator to be null and void, and that he acquired no title to the® by-virtue of the pretended sale under section six of said act 81.

The judgment of the lower court discharging the rule-nisi, and refusing the mandamus is affirmed, with costs in both courts.