text:
    No. 6455.
    Rhoda E. White vs. Myra Clark Gaines. On Rule to traverse Answers of Garnishees.
    When the principal parties, and tho thing demanded, in two suits, are different, the judgment in one can not be pleaded as res adjudicate/, in the other suit.
    A simulated transfer of property will not protect it from tho pursuit of the real owner’s creditors.
    j^PPEAL from the Fifth District Court, parish of Orleans. Cullom,

      JR. JDe Gray, and Semmes & Mott, for plaintiff in rule.

      Finney & Millei', for garnishees.

      J. Q. A. Fellows, for defendant in rule, appellant.
   The opinion of the court was delivered by

Manning, C. J.

In 1872 the plaintiff obtained judgment against the defendant in the Fifth District Court of New Orleans for thirty thousand dollars with interest, with the right of issuing execution Lor twenty-thousand one hundred and five 20-100 dollars, being fifteen per centum' of the amount of money and property proven to have been recovered,, collected, and realized by the defendant since May 30th. 1864, as heir, daughter, and devisee of Daniel Clark, and reserving to plaintiff the' right to take out execution from time to time for fifteen dollars out of every hundred dollars that may hereafter be recovered or realized, or which may heretofore have been recovered or realized, of property of Daniel Clark’s estate, until this judgment is fully satisfied.

The defendant appealed from this judgment, J. Q. A. Fellows being the surety on her suspensive appeal bond. Some time afterwards, and before the appeal was heard, objection was made in the proper form to the-sufficiency of the surety, and upon order being made to furnish additional security, J, H. Oglesby, Louis Schneider, Patrick Irwin, and W. S. Pike became sureties on the defendant’s appeal bond. The appeal was unsuccessful. This court affirmed the judgment.

Suit was then instituted on these appeal bonds, and judgment was rendered against the five sureties — Fellows, Oglesby, Schneider, Irwin, and Pike — against Fellows for twenty thousand one hundred and five 20-100 dollars, and against the four others for the same sum, to be discharged by the payment oí the amount for which each had obligated himself. A suspensive appeal was taken from this judgment, and Oglesby and Schneider became sureties for Fellows on his. appeal bond. The appeal resulted as did the first, and the four solvent sureties paid each $5,323.20 in satisfaction of the judgment. Fellows paid nothing,

In November 1875, additional property or money having been realized by defendant, another execution was obtained by plaintiff for eighteen thousand five hundred and twelve 96-100 dollars, and process of garnishment was issued, and interrogatories were addressed to the city of New Orleans, S. M. Todd, A. Schreiber, J. Q. A. Fellows and J. H. Oglesby. The first four answered that they were not indebted, had no funds etc. Oglesby answered that he held an order of date May 26th. 1875, signed by Fellows and addressed to Todd, directing the latter to deliver to Oglesby, or hold subject to his order, a previous order of Mrs. Gaines on him (Todd), dated May 30th. 1874, in which she had transferred to Fellows the remainder of the judgment in “ Gaines vs. City of New Orleans.” Oglesby explained in his answers that this order of Fellows was to indemnify himself and Louis Schneider “ against loss or damage and liability upon, and growing out of the appeal bond signed by himself and Schneider, Irwin, and Pike as sureties of Fellows on the appeal bond furnished by him in the suit of Bhoda E. White vs. Myra Clark Gaines.”

We must go back in this narrative somewhat in order to make this reference to another judgment comprehensible. Mrs. Gaines had recovered $125,266.72 with interest, from the city of New Orleans by judgment rendered in the Circuit Court of the United States, and S. M. Todd and A. Schreiber had been appointed trustees by that court for the purpose of collecting this judgment and paying $40,000 of it to James Emmott, and the residue to Mrs. Gaines or her order. She had given several orders on this fund, in aggregate more than the amount to be paid Emmott, and finally she gave Fellows an order for all the residue. That is the order of 30th. of May 1874. A year afterwards, Fellows transferred this residuum to Oglesby for the purpose above explained.

The object of those garnishments is to subject this residuum to the satisfaction of plaintiff’s execution for over eighteen thousand dollars. The process is based upon the theory that the transfer or order of 30th. May 1874 was not real, and therefore Mrs. Gaines was owner of this residuum at the moment of seizure, and is now. The answers of the garnishees Oglesby and Fellows were traversed, and the simulation of the transfer was established to the satisfaction of the lower court. There was judgment accordingly, and hence this appeal.

The plea of res judicata is first interposed, and is based upon the following judicial proceedings.

After Mrs. Gaines had obtained the judgment against the city of New Orleans in the IT. S. Circuit Court, various parties asserted before that tribunal rights claimed by them in. and upon that judgment. Among them was the present plaintiff, who claimed an older lien than any other by virtue of a mortgage of thirtieth May, 1861, which had been given by Mrs. Gaines to plaintiff and another, whose rights plaintiff had acquired, to secure the paymennt of $30,000 with interest. The contract providing for this payment was the basis of the suit in the Fifth District Court, which resulted in a judgment.

The claim of priority in lien, urged by Rhoda White in the Circuit Court because of her mortgage, was the thing to be adjudged by that tribunal. This is apparent from the opinion of the Circuit Judge delivered in support of his decree. He says,

“To secure the performance of this contract, Mrs. Gaines conveyed by said mortgage to Mack and Mrs. White all the estate, property, rights, and interests of every kind and nature, legal and equitable, real, personal, and mixed, or of any other nature and description whatsoever in or to which Mrs. Gaines is entitled, or has any claim, right title or interest, as the heir or devisee or daughter of Daniel Clark deceased, situate in the State of Louisiana. The property conveyed by this mortgage is the property which comes to her as the heir or devisee of Daniel Clark. This would include all real estate of which Clark died seized, or in which he had any interest or estate, all personal property, and choses in action of which he was possessed, and all debts and demands due him at the time of his death of whatever nature and description.

But it seems to me. clear that the language used in this mortgage to describe the mortgaged property does not include the rents issues and profits of land which accrued long after the death of Clark, and long after title to the land had vested in his daughter. These rents are not derived from Daniel Clark’s estate, but are the fruits of the estate of Mrs. Gaines. The rents recovered in this case are rents which accrued to Mrs. Gaines after 183á, twenty one years after Mrs. Gaines’ title to the realty, out of which the rents arose, had vested in her. They are the proceeds of her own estate, and not of Daniel Clark. The rent of mortgaged property is personal property, and not capable of being mortgaged by the law of Louisiana. But even if it had been shown that the rents from real estate, devised to Mrs. Gaines by her father, was included in the terms of the mortgage, the mortgage would not have been valid as to such rents.”

The Circuit Judge, proceeding to judgment, says this mortgage is not an assignment or transEer of title to any particular fund, and concludes that Mrs. White, “having reduced her claim to judgment, stands so far as the fund to be produced on this judgment is concerned, in the position of an ordinary judgment creditor of Mrs. Gaines with the right to issue execution and seize any property belonging to her, but subject to liens and vested rights thereon existing before her levy, but she had no lien resulting from her contract and mortgage.” ,

To establish the plea of res judicata, there must be an identity of parties, of capacity, of object, and of cause of action. The party most interested in the present proceeding is Oglesby, for himself and Schneider, neither of whom were parties to that of the U. S. Circuit Court. The-thing demanded in that forum was the recognition of plaintiffs prior-lien upon a fund, arising out of a mortgage in her favor. Here it is the-right to the residuum of thatfund, arising out of its seizure under a fieri facias, to be made effective through a personal judgment against the-garnishees. Marcadé teaches — “ La cause, qui doit étre la méme dans les deux demandes pour que la seconde soit écartie comme deja jugée, o’estle principe qui engendre immédiatement le droit qu’ une partie pretend exercer et que l’autre lui conteste * * * * * du reste, 1’ óbjet se trouve par la réponse a cette question : que demande le plaideur ? et on trouve la cause par la réponse a cette autre qüestion : sur quoi le plaideur fond-t-il immédiatement sa pretention ?” Explication du Code Napoléon, tome 5. p.-152.

Ve do not sustain the exception of the thing adjudged, and proceed to the consideration of the question of simulation.

Mrs. Gaines thus testifies — “ Mr. Fellows paid me no consideration whatever for the order of 30th. May 1874, but was to hold the same for my own use and benefit, and that he would pay me every dollar after the previous orders were paid. I had no knowledge that Mr. Fellows on the 26th. of May 1875 transferred to J. H. Oglesby the remainder and residue of said judgment. * * * I had no knowledge of said transfer, and Mr. Fellows had no right to make such transfer.”

This is the version of the signer of the order. The person in whose favor the order is drawn can now be heard. His letter to Mrs. Gaines of date January 22d 1867 is as follows — “De Gray has traversed the answers of the garnishees in the Rhoda White judgment, and taken out certain proceeding against Todd and Schreiber to make them pay the whole of the Rhoda White judgment. Interrogatories for you to answer will be sent to Washington Wednesday to be used in evidence against them, and so it defeats all our claims.”

These interrogatories were answered by Mrs. Gaines on 2d of February 1876, and from them the extract first given above is taken.

On 21st. of March following another letter is written by Mr. Fellows to Mrs. Gaines — “ I fear you have made De Gray certain of getting his entire judgment, and had it not been for this decision of yesterday it would have ruined me. He has recorded against me and bearing against all my property that ($20,105) judgment, and is seeking for the balance of the judgment on an execution upon his second judgment for about .$19,000. I shall in that way be left in the lurch entirely and totally ruined. He will take all I ever had from you and $20,000 more with nothing more to meet it. This will be the case unless I can contradict or explain your answers in which I think you are mistaken.”

In the previous December, a witness states that he was present at an interview between Mrs. Gaines and Mr. Eellows, when the latter read to the former his answers to the interrogatories addressed to himself, and which are on file, and added — •“ you have heard what I have sworn to, -and you will probably be called upon to answer as a witness, and it is necessary that you should answer in the same manner. You must swear that I am the owner of that judgment and that it was given to me for .services. Mrs. Gaines said, how can I do so when I am the owner. Eellows replied, well it is necessary you should do so. If you don’t you will lose every cent of it.”

The recitals of conversations between these parties by witnesses are received with circumspection, but their- conformity to the contemporaneous utterances of the parties themselves cumulates the proof of the latent design of the order, whose nature we are seeking to discover. In August succeeding the date of that order Mr. Eellows writes to Mrs. Gaines a “ strictly confidential” letter — “ On a final distribution of the judgment against the city for rents and revenues, there will be coming to you by an outside way $3500 and probably as much more.”

If the residuum of the judgment of the defendant against the city were transferred bona fide to Mr. Eellows, and for services rendered by him, it is not patent by what means any portion of that judgment can be coming to her in any way, and if it were meant that the outside way was to be the surrender either of part of his own fees, or of the trustees’ commissions, there need not have been any special confidence enjoined touching a communication covering so benevolent a purpose.

"We listened with gratification and approval to the oral comments of the counsel for the garnishees upon the pitiable spectacle presented to our view by the divulging by a client of the correspondence of her lawyer, with whom she had quarreled. However reprehensible this is, it must be remembered that in the present instance, the necessity for this disclosure was created by the correspondent himself. He had received, or was to receive, from his client $24,840.92 for fees, that being the sum assigned him on the tableau of distribution of the proceeds of the judgment against the city. When it became necessary to ascertain a consideration for the order of transfer of the residuum of that judgment, he suggested services” as a reasonable one. His preparation of matters of fact to be verified by her oath, and his direction of her conscience to ■the desired end, cannot pass from our review without an expression of condemnation, and we believe it is an unusual feature in the correspondence of our professional brethren with their clients, to find a friendly suggestion that one hopes to find some way in which the sworn statements of the other may be contradicted.

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

Rehearing refused.


source: Caselaw Access Project

author: Marr, J.

license: Public Domain

text:
    No. 6308.
    State vs. Gus Anderson.
    The act of 1874 croafcing the “ Superior Criminal Court,” for the parish of Orleans, is constitutional.
    The Legislature may establish as many district courts within the parish of Orleans as the public interests shall require.
    The omission of the word “ district" in the title of the act creating the “ Superior Criminal Court,” does not affect its character as a district court.
    The Attorney General, or District Attorney, may employ associate counsel to aid him in a case, and, being present, may entrust to his associate the exclusive conduct of the case.
    l'n criminal eases this court has jurisdiction only of questions of law, and hence can not review a verdict.
    ^PPEAL from tho Superior Criminal Court, parish of Orleans. Steele,.

      A. P. Meld, Attorney General, for the State.

      2$. G. Kelly, for defendant and appellant.
   The opinion of the court was delivered by

Marr, J.

The appellant was convicted of rape, in the Superior Criminal Court for the parish of Orleans, and sentenced to the penitentiary for life. After an ineffectual motion for a new trial, he brings the dasebefore us by appeal.

His counsel assigns for errors, apparent on the face of the record:

First — That the act of the Legislature, No. 124, approved ninth of April, 1874, creating the Superior Criminal Court, is in violation of the constitution, article seventy-three, which vests the entire judicial power in a Supreme Court, district courts, parish courts, and justices of the peace.

Second — That the prosecution was not conducted by the Attorney-General, nor by the Assistant Attorney General, nor by the district attorney for the parish of Orleans, but by S. J. N. Smith, Esq., who had no official capacity, and no authority to prosecute in the name and behalf' of the State.

First — The act of 1874, creating the Superior Criminal Court, section. one, declares that, “ there shall be and is hereby created an additional district court for the parish of Orleans to be denominated the Superior Criminal Court for the parish of Orleans.”

The constitution, article eighty-three, empowers the Legislature to establish as many district courts in the parish of Orleans as the public interest may require. The act of 1874 creating another district court', in and for the parish of Orleans, is within the power thus conferred; and the fact that the Legislature chose to call this district court the Superior Criminal Court, omitting the word “ district ” in its name and denomination, does not make it any the less a district court, or violate, in any sense, article seventy-three, of the constitution.

Second — The indictment is signed by John MoPhelin, in his capacity as district attorney. The minutes show that the district ^attorney was present in court when the accused was arraigned, and pleaded not guilty; and that he was present when he was put upon Ms trial. It appears that S. J. N. Smith, Esq., prosecuted for the State, in this behalf, by authority of the Attorney General. It also appears, by the minutes, that the district attorney was present when the motion for a new trial was made, when it was argued and submitted, when it was overruled, when the accused was sentenced, and when the appeal was taken.

It is not uncommon for the district attorney or the Attorney General to be assisted by other counsel; and if an assistant may appear, he may lead, or conduct the trial alone, by the permission of the district attorney or Attorney General. The accused has no right to complain that the Attorney General availed himself of the services of another, in the trial of this ease, nor can his rights have been in any manner thereby prejudiced.

The motion for a new trial is on the grounds:

First — -That the verdict is contrary to the law and the evidence.

Second — That since the trial accused has discovered evidence important to the cause, which he could not, with due diligence, have obtained before.

First — In criminal cases the jurisdiction of this court is limited to questions of law only; and if we had the authority to pass upon the evidence, and to decide as to its sufficiency to sustain the verdict, it would not be possible for us to do so without having the testimony before us.

Second — The affidavits filed in this case do not show that the evidence was discovered since the trial. There had been a trial before, the result of which was a conviction, and, on appeal, the case was remanded for a new trial, because of want of authority in the judge. On the second trial the accused did not ask for a continuance, but announced himself ready. It is manifest that he knew, from tho date of the alleged commission of the crime, nearly two years before the last trial, whether he could prove by Joseph the facts alleged in their affidavits. The experience of one trial had developed the exigencies of the case; and nothing is stated tending to show any effort to procure the testimony of this witness. ■

We do not think good cause for a new trial was shown; and the ends-of justice do not require us to interfere with the ruling of the judge a guo in refusing to open the case for a third trial.

The judgment appealed from is affirmed with costs.


text:
    No. 6695.
    State ex rel. Thomas Jorda vs. the Judge of the Fourth District Court.
    The bond lor a suspensive appeal from a money judgment must exceed by one half the principal, and interest due, at the date of the judgment. The court can not fix it for any Joss amount.
    The surety on an appeal bond must reside within the jurisdiction of the court, and bo amenabio to its process in case any action against him on the bond should be had, and have property over and above any incumbrances on it equal in value to the amount for which he is bound.
    j^PPLICATION for writs of mandamus and prohibition.

      G. Ii. Brauglm and John B. Kunz, for relator.

      Clarke, Bayne & Benshaw, for respondent.
   The opinion of the court was delivered by

Marr, J.

Judgment was rendered in the Fourth District Court, on -the twenty-third of May, 1877, in favor of Davis, against Thomas Jorda, on a promissory note, secured by mortgage, for $5700, with eight per cent interest from the first of September, 1876, five per cent on the ag-' grogate of principal and interest for attorney’s fees, $4 50 protest fees, and costs of suit, with privilege and special mortgage on the property described.

On the fourth of June, Jorda moved for a suspensive appeal, which was granted on his giving bond, with good and solvent security, in the sum of $9500; and on the same day a bond for that sum was filed, with four sureties, one for $4000, one for $2500, and two for $1500 each.

On the fifteenth of June counsel for Davis, the plaintiff, took a rule on Jorda to show cause why the appeal should not be set aside and dismissed, on the grounds:

First — That the bond is not good, and such as is required by law.

Second — That the sureties are not good and solvent, and are not such as are required by law.

On the trial of this rule a mass of evidence, oral and documentary, was offered. The court decided that the bond was not sufficient; and set aside the appeal. The plaintiff was proceeding to execute the judgment when Jorda applied to this court for a mandamus to compel the district judge to grant him a suspensive appeal, and for a writ of prohibition to stay proceedings in the meantime.

In answer to the rule nisi, granted by this court, the judge states that the insufficiency of some of the sureties was proven by the testimony; and that the signature of Pedro Martinez, as one of the sureties in the appeal bond, was a forgery. As each of the sureties bound himself for part only of the amount, it was necessary that all should be good and solvent.

We have carefully examined the testimony taken in the district court; and we concur -with the judge in his conclusion that the bond is not such as the law requires; and that it is wholly insufficient. The surety for $2500 owns furniture which he estimates at from $500 to $600, and real estate which he thinks may be worth from $3500 to $4000. He testifies that this property was assessed for taxation at $2000; that he applied to the Board of Assessors to have this valuation reduced; and upon the showing he made, supported by his affidavit, the valuation was reduced to $1700. He owes $1100, secured by mortgage on this property, and some $300 besides. His insufficiency, as well as that of Pon, one of the sureties for $1500, is manifest.

Jose Martinez testifies that he was present when his brother, Pedro, signed the bond; and he swears that Pedro is worth more than the $1500 for which he bound himself. Other witnesses prove that judgments for small amounts, against Pedro, remain unsatisfied, notwithstanding the efforts of constable and sheriff. His judgment creditors do not know where to find property to satisfy their claims.

Pedro Martinez is a dealer in tobacco and cigars; and he has had occasion, more than once, to give bond for his appearance to answer for violations of the internal revenue laws. His signatures to these bonds, and to papers filed in the State courts were produced; and they have been brought up for our inspection. We do not undertake to sit as experts in handwriting; but no great skill is required to perceive the wide difference between the several signatures proven to be genuine, and that which is affixed to the appeal bond in this case; and the comparison confirms the. testimony of the professed experts.

In January, 1876, Pedro Martinez was indicted in the United States Circuit Court, for feloniously removing internal revenue stamps from cigar boxes, and having them in his possession with intent to defraud the government. He was arrested and admitted to bail; and was afterward surrendered by his surety. He was again admitted to bail; and, on the fifteenth of May, 1877, Thomas Jorda became surety, in the sum of $1000, for his appearance. On the sixth of June, Pedro was called, and on his-failure to appear, his surety, Jorda, was called to produce him, which Jorda failed to do; and, thereupon, the recognizance was forfeited.

Jose Martinez says his brother, Pedro, has gone to New York, to sell some cigars. No witness gave the date, of his departure; but it is evident that he is a fugitive from justice; and the application of Jorda for a continuance of the rule to enable him to procure his testimony was properly denied, as it was not indicated when or where he could be found.

Whether Pedro Martinez signed this bond or not, the proof shows his-want of sufficiency. But if he had ample means, he would not be good security. The good security required by law, must reside within the-jurisdiction of the court, and be amenable to its process, in the event of a resort to the appeal bond.

The law requires that a suspensive appeal bond, in case of a money judgment, shall exceed by one halt the amount of the judgment. C. P. article 575; and jurisprudence and long uniform practice have settled the interpretation that the amount is the total sum due, at the date of rendering the judgment, including interest, and excluding the costs of suit. Ross vs. Pargoud, 2 La. 85; Brown vs. Brown, 9 An. 310. An accurate calculation will show that the bond is not sufficient in amount; and the fact that the amount was fixed in the order of appeal is without effect or significance. It is not the province of the judge to fix the amount of the bond, for a suspensive appeal, from a money judgment, because the law fixes it.

Judgment rendered twenty-tifiad of May, 1877................$5700- 00

Interest from first of September, 1876, eight months and twenty-three days, at eight per cent..........'................... 332 19

Eive per cent on aggregate, $6032 19, for attorney’s fees....... 301 61

Protest fees................................................. 4 50

Total at date of judgment, twenty-third of May, 1877.. .$6338 30'

One half.............................................. 3169 15

Amount of bond required for suspensive appeal..............$9507 45

The maxim de minimis does not apply; because there can be no suspensive appeal, where there is not a bond, with good and solvent security, residing within the jurisdiction of the court, exceeding by one half the amount for which the judgment was given, if it be for a specific sum. The law attaches equal importance to each and to all of these conditions; and if one of - them be wanting the defect is fatal.

The relator is not entitled to the relief which he seeks at our hands; and it is therefore ordered, adjudged, and decreed that the rule nisi, granted in this ease, be discharged, and that the relator, Thomas Jorda, pay the costs of this proceeding.


author: Marr, J. Egan, J.

text:
    No. 6614.
    State vs. William Williams.
    The Legislature may, within constitutional limits, make any changes in the boundaries of parishes, and of judicial districts. It may, in forming j udicial districts, divide the territory of a parish into two, or more districts.
    The act of 1870, making the Sixth and Seventh Municipal Districts of the parish of Orleans a part of the Second Judicial District, is constitutional.
    The Seventh Municipal District of the parish of Orleans being a part of the territory of the Second Judicial District, the Superior Criminal Court for the parish of Orleans has no jurisdiction of any offense committed in said municipal district.
    APPEAL from the Superior Criminal Court, parish of Orleans. Whitaker, J.

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

      J. N. Hagins, for defendant and appellant.
   The opinion of the court was delivered by

Marr, J.

The accused was convicted of burglary and grand larceny in the Superior Criminal Court for the parish of Orleans, and was sentenced to the penitentiary for four years on the first charge, and two years on the second. On. the refusal of the court to grant him a new trial he appealed.

The offenses were committed in the Seventh' Municipal District of the parish of Orleans, on the twenty-eighth of May, 1876. The information was filed on the seventeenth of October, and the accused was tried and convicted on the twenty-first of February, 1877. The sole question is as to the juisdiction of the Superior Criminal Court for the parish of Orleans.

The Seventh Municipal District was the city of Carrollton, in the parish of Jefferson, part of the Second Judicial District of the State, established by the act of 1860. By act No. 71, of 1874, approved March 23, this territory was detached from the parish of Jefferson, and annexed to the parish of Orleans and city of New Orleans, as the Seventh Municipal District. By the second section of this act this territory was to “be and remain and constitute a part of the Second Judicial District of the State.”

In our opinion this provision of the act was within the power of the Legislature. The jurisdiction of the courts of a parish extends to all the territory and all the inhabitants within the limits of the parish, where no law otherwise provides. Article eighty-three of the constitution of 1868 requires that the judicial districts shall remain unchanged for four years ; and in the Remmers case, just decided, we held that the four years have reference to the judicial term, which expires at each general election, counting from the month of November, 1868. It was within the power of the Legislature to detach this territory at any time, and to annex it to the parish of Orleans, but it was not competent to detach it from the judicial district to which it belonged, and to place it in another judicial district until the general election in November, 1876, at which time the j udicial term expired.

By act No. 45, of 1876, approved eighteenth March, it is declared that the Second Judicial District shall be composed of the parishes of St. Bernard, Plaquemines, Jefferson, and the Sixth and Seventh Municipal Districts of the parish of Orleans. In the Remmers case we held that the effect of this act was suspended, so far as the Sixth District was concerned, until the expiration of the tez’m of the judge of the Second J udicial District, that is, until the general election, in November, 1876. The Sixth Municipal District, which was annexed to the parish of Orleans, was clearly under the jurisdiction of the First Judicial District from and after the genez’al election of 1872; and we held that it necessarily so continued until the general election in November, 1876. The Seventh Municipal District, by the express tei'zns of the act of 1874, No. 71, remained a part of the Second Judicial District until the expiration of the term of the judge of that district, November, 1876 ; and this act of 1876 simply left these two districts in the precise condition in which they were at the date of its passage, until the general election of November, 1876.

If the act of 1876 be a legitimate exercise of legislative power, the Sixth and Seventh Municipal Districts are subject to the exclusive jurisdiction of the court of the Second Judicial District, for the Sixth and Seventh Municipal Districts. The Seventh Municipal District has never been subject to the jurisdiction of the courts of the First Judicial District; and the Sixth Municipal District ceased to be part of the First Judicial District, from and after the general election in November, 1876.

We must refer here to the opinion just pronounced in the Remmers’ case, for a full discussion of these questions; and we might content ourselves with what is said in that case, but for the fact that the accused was tried in February, 1877, when the entire territory and all the inhabitants of the parish of Orleans were subject to the jurisdiction of the courts of the First Judicial District, unless some law otherwise provided. The act of 1876 does otherwise provide; but it is urged that this act is in violation of the constitution; and it becomes necessary for us to pass upon and determine that.question.

We premise that the Legislature, without any special grant of power, may change the boundaries of the parishes; and may change the judicial districts so far as the constitution has not imposed restrictions on the exercise of this power. The constitution of 1868 has limited this power:

First — By providing that the number of judicial districts shall not be less than twelve, nor more than twenty.

Second — By requiring that the judicial districts shall remain unchanged for four years.

In determining whether the Legislature has power, under the constitution to do any act, the argumentum ah inconvenienti is entitled to but little weight. In all such cases the question is one of power, not of convenience, not of public policy, not of wisdom. If the power exists, the judicial tribunals have nothing, to do with questions of the propriety or the policy of the exercise of that power.

It is supposed, and argued, that the Legislature has no power to divide a parish in the formation of judicial districts. The constitution, article twenty-nine, provides that no parish shall be divided in the formation of a senatorial district, the parish of Orleans excepted. There is no such prohibition with respect to judicial districts; and the argument is one of inference and deduction only, and of the supposed inconvenience of subjecting the territory and inhabitants of a portion of the parish to the jurisdiction of one judicial district, and the territory and inhabitants of another portion to the jurisdiction of another judicial district. It is worthy of note that this prohibition is applicable to the power to form senatorial districts alone; and as the power to divide the State into judicial districts is not subject to any such limitation, it would seem to have been the intention of the constitution to leave it witJiin the discretion of the Legislature to divide parishes, in the formation of judicial districts, if the public convenience should so require.

The parish of Orleans has not been actually divided; that is, it remains in its integrity, composed of its seven municipal districts, five of which are part of the First Judicial District, and two, the sixth and seventh, are made parts of the Second Judicial District by the act of 1876.

' This act creates a court, the “Second Judicial District Court for the sixth and seventh municipal districts of the parish of Orleans;” the sessions of which are to be held in the seventh district. In every sense this is a district court of the parish of Orleans. It has no jurisdiction out of the parish of Orleans, it sits in the parish of Orleans, its executive officers are the civil and criminal sheriffs of the parish of Orleans, its clerk is elected by the qualified voters of the sixth and seventh municipal districts of the parish of Orleans, and its jurors are the registered voters of the sixth and seventh municipal districts of the parish of Orleans. Article eighty-three of the constitution empowers the Legislature to establish as many district courts in the parish of Orleans as the public interests may require; and nothing in the constitution limits the power of the Legislature to confer upon such courts such jurisdiction as it may choose, except that the amount in controversy must be above one hundred dollars. It is nowhere provided that all the district courts or any of the district courts which the Legislature may establish in the parish of Orleans shall have jurisdiction throughout the parish; and there is no good reason why a district court might not be established in each municipal district, having no jurisdiction beyond the limits of that district, if the Legislature should think the public interests so required.

The constitution requires that the clerks of the district courts shall be elected by the qualified voters of their respective parishes : the district judges are also to be elected by the qualified voters of their respective districts, article eighty-three; and article six declares that “ a party accused shall bo entitled to a speedy public trial, by an impartial jury of the parish in which the offense was committed.” Does it thence follow that the jurors must betaken from the entire parish; or that the clerk must be elected by the voters of the entire parish? As to the judge, the constitution simply requires that he shall be elected by the qualified voters of his district. As to the sheriffs, there is no difficulty, because they are elected by the qualified voters of the entire parish, and they exercise their functions and authority throughout the parish.

By the constitution of 1845, article eighty-one, it was provided that the justices of the peace should “be elected by the qualified voters of each parish.” The act of 1846, No. 103, required that the justices in the country parishes should be elected in each ward of the several parishes by the qualified voters and residents of that ward.

The act No. 106, of 1846, provided that the justices in the city of New Orleans, six in number, should be elected by the qualified voters of the representative districts respectively. Their jurisdiction was concurrent throughout the parish, except that portion lying on the right bank of the river.

In Schmidt’s case, 1 An. 387, it was urged that this act was in violation of article eighty-one of the constitution; and that the justices must be elected by the qualified voters of the entire parish. The court held that this division of the country parishes into wards, and the city into districts, and the election of the justices by the qualified voters of the wards and districts respectively, “ according to all reasonable principles of construction, can not be held to be contrary to the text of the constitution, and it is certainly in accordance with the sense of a large majority of those who framed it.”

The act of 1876 does not deprive any voter of the right to vote for the judge having jurisdiction over him. The qualified voters of the Sixth and Seventh Municipal Districts had the right and the opportunity to vote for the judge of the Second Judicial District for the Sixth and Seventh Municipal Districts of the parish of Orleans ; for that judge is elective by the qualified voters of his entire district; they had the right and the opportunity to vote for the clerk of that court, because he is elective by the voters of those two districts exclusively; they had the right and. the opportunity to vote for the-executive officers of that court, the civil and the criminal sheriffs of the parish of Orleans, because-they .are elective by the qualified voters of the entire parish of Orleans ; and they have the right and privilege of being tried by jurors selected from the entire number of the registered voters of those two districts, who . are also j urors of the parish of Orleans, although they are exempt from jury duty in any other court.

The inhabitants of these districts thus have the right to vote for every elective officer, having authority over them ; and the right to be tried by jurors of their own parish. Their rights are not diminished in any respect. The object of the trial by jury in criminal cases is to secure the accused against punishment except by the judgment of his peers of the vicinage: and these citizens of the parish of Orleans are more favored in this respect than the inhabitants-of the other districts of the city, because the jurors upon whose verdicts their lives, their liberty, and their property may depend are not drawn from the parish at large, but from these two districts alone, from the vicinage, the immediate neighborhood.

The act of 1876 violates no clause or feature of the constitution ; it impairs, in no respect, the rights of the citizen. It is, in point of fact, not merely not inconvenient to them, but most convenient — giving them, besides ail the other advantages, a court near to them, and in exempting them from the jurisdiction of other courts, civil and criminal, except in matters of probate.

This act confers exclusive and unlimited jurisdiction, civil and criminal, on the court of these two districts; and it was perfectly competent for the Legislature to create that court, and to organize it precisely as provided by the act.

The Legislature of 1877, by act eighty-five, repealed this law; but it expressly suspends this effect until the expiration of the term of the judge of the Second Judicial District in November, 1880.

We have read with care and with pleasure the able arguments submit-, ted to us in this and in the Remmers case; and our conclusion is that the Sixth Municipal District became a apart of the Second Judicial District in November, 1876 ; that the Seventh Municipal District has never, since the act of 1860, been part of any other judicial district than that to which it belonged, as a component part of the parish of Jefferson ; and that both these districts are now parts of the Second Judicial District, subject to the exclusive jurisdiction, except in matters of probate, of the Second Judicial District Court of the Sixth and Seventh Municipal Districts of the parish of Orleans.

The consequence is that the Superior Criminal Court was without jurisdiction of the offenses committed in the Seventh Municipal District, on the twenty-eighth of May, 1876 ; that it was without jurisdiction when the information was filed, on the seventeenth of October, 1876; and without jurisdiction when the accused was tried and- convicted, on the twenty-first of February, 1877. The whole proceeding against the accused was corarm non judice and void; and the judgment and sentence are mere nullities.

The accused, having been tried by a tribunal wholly without jurisdiction, has not thereby been put in jeopardy in the sense of the law; and he should be held to answer before the Second Judicial District Court, of the Sixth and Seventh Municipal Districts of the parish of Orleans.

It is therefore ordered, adjudged, and decreed that the judgment and sentence appealed from be annulled, avoided, and reversed; that the information be dismissed, and that the accused be held by the criminal sheriff of the parish of Orleans to answer for the offenses of burglary and grand larceny, with which he is charged, before the Second Judicial District Court, of the Sixth and Seventh Municipal Districts of the parish of Orleans.

Dissenting Opinion.

Egan, J.

I dissent from the decree in this' case, and adhere to the opinion expressed in the Remmers case, that the division of parishes in the formation of judicial districts should not be sanctioned. I can not see how it is possible to give full effect to the provisions of the constitution in regard to the trial by an impartial j ury of the parish and those in regard to the election of clerks and sheriffs by the qualified voters of the parish, which in my opinion means the whole parish, and not any part of it. How can the right of trial by an impartial jury of the parish be said to exist when the juries are drawn from only part of the parish, and if it is competent to say that the jury may be drawn from the part of the parish nearest ? Why not from that most distant from the accused or where the crime was committed? All these provisions must be considered in conjunction with the power to create judicial districts. This case and the act of 1876 afford an illustration of the difficulties growing out of an attempted violation of this principle. Neither can I assent to the division of the parish of Orleans, especially under the provision of the constitution which specially excepts that parish from the general rule as to division into judicial districts, etc., applicable to other parts of the State.

As to the argument that the Legislature had power to create the Second J udicial District Court for the Sixth and Seventh Districts under the general power conferred by article eighty-three, constitution of Louisiana, it is sufficient to say that act —• of 1876 was not even an attempt at the exercise of that power, but was an attempt to divide the parish of Orleans for the formation of a judicial district not within the parish of Orleans, but partly within and partly without that parish, and in violation of the constitution to permit voters outside the parish of Orleans to have a voice in the selection of a judge exercising functions and presiding within its limits. It is clear from the title and terms of the act that the intention was to define and extend the limits of the Second Judicial District of the State, and not to create another district court in the parish of Orleans. This I think can not be done, and if attempted is fraught with'inconveniencies and difficulties so serious that they should in future deter from such legislation for that reason alone if the constitutional objection did not attach. Imagine, for instance, the clerk of the parish of Livingston called upon to act as such under authority as clerk of two different district courts sitting, in the same parish at -the same time, with different judges presiding by reason of a division of the parish in the formation of a judicial district. Until the legislation, the effect of which we are now reviewing, the uniform practical interpretation of the power given by the constitution to create additional district courts for the parish of Orleans had been in accordance with the views herein expressed.


author: Manning, C. J.

text:
    No. 6742.
    State ex rel. E. G. Hunter, District Attorney, vs. Judges of the Ninth and Seventeenth Judicial Districts.
    The application for a mandamus to compel a district judge to presido at the trial of a criminal ease in an adjoining district, does not bring the ease before this court, and hence the law limiting the jurisdiction of this court in criminal cases does not apply.
    Section 1068 of the Revised Statutes of 1870, providing for the interchange of two. neighboring district judges, when one of them is recused, is unconstitutional.
    When a judge is recused in a case in which he is not personally interested, lie must select a lawyer, of proper Qualifications to try it. When he -is personally interested, the parish judge must preside in his stead.
    QN application for a mandamus.

      JE. G. Hunter, District Attorney for the Ninth Judicial District, for relator.
    Bespondents for themselves.
   The opinion of the court was delivered by

Manning, C. J.

An indictment for murder is awaiting trial in the parish of Bapides. P. M. Bichardson, is the party accused, and he is the brother in. law of the judge of the district in which is that parish. The district attorney, proceeding under sec. 1068 of the Eevised Statutes, gave notice to the presiding judge that he was recused in that case, and also that the judge of the seventeenth district, which adjoins the ninth, Will be called on to hold the next term of court in the latter. He also gave notice to thio judge of the seventeenth district that he would be required to hold that term. The two judges refuse to interchange, and the prosecuting officer has taken this proceeding by mandamus to compel them to comply with the requirement of that statute which is, that it shall be the duty of the judges thus, notified to interchange accordingly.

The judges answer that the law requiring their interchange is unconstitutional, and the judge of the ninth district also pleads want of jurisdiction, in this to wit, that this court can issue a mandamus only in aid of its appellate jurisdiction, and that jurisdiction is restricted to those cases in- which the punishment of death, or imprisonment at hard labor, or a fine exceeding three hundred dollars, is actually imposed. •

The criminal proceeding is not before us now, but an original process, the object of which is to ascertain whether a judge wrongfully refuses to perform what is alleged to be his duty, and to compel its performance if that refusal is wrongful. The alleged duty is to interchange with the judge of an adjoining district for the purpose of trying, or having tried .a prosecution for murder, and our inquiry is confined to the question of whether the law which imposes that duty upon him is constitutional. "The exception to the jurisdiction is overruled.

The constitution prescribes that a judge shall select a lawyer to try refused cases in which he is not personally interested, and when he is thus •interested the parish judge must be called on to try the case if it be in ;the district court, art. 90. All the cases in which a judge may be refused are thus divided into two classes, the ingredient of personal interest being the distinctive feature of the one, and the want of it that of the • other. It seems to have been the special object of that article to con•trive a mode by which the cases, in which a judge is recused, might be ¡speedily tried and without the delay and inconvenience consequent upon .an interchange of judges.. There is a careful omission of any provision touching such interchange, although it had been of frequent practice .under the constitution of >1852. The revisal of the statutes, made in 1870, reproduces the law of 1858 which dictated to the district attorney the •course followed in the present instance, and it is argued by him that the .insertion of that law in the revisal, with article 90 of the constitution of T868 in force, shews that a conflict between them was not then supposed to exist.

Nevertheless we think they are in conflict, and that section 1068 of the .Eevised Statutes must therefore be declared null.

The criminal prosecution of the judge’s brother-in-law is not a case in which that officer is personally interested, in the sense in which those words are used by the constitution, and therefore he must select a lawyer, who has the qualifications required for a judge of his court, to try the case. The district attorney very aptly inquires, if pecuniary interest is a sufficient and proper reason for depriving a judge of the liberty of selecting a lawyer to try a case, can it be possible that the framers of the constitution intended to confer that power upon him when the case is a criminal prosecution in which the life of a near relative is involved, or when disgrace to some member of his family would be the consequence of conviction.

We are very sensible of the grave omission to provide for such cases, and of the danger which.might sometimes attend the exercise of the power to appoint a lawyer, where the prosecution, if successful, would entail painful consequences upon the judge. Our only answer to this appeal to our perception of the unfitness of entrusting this power to the judge is ita lex scripta est, and we must assume that a judge, in exercising this delicate function, will be more than ordinarily careful to select a lawyer whose ability and impartiality is both unquestioned and unquestionable so that the administration of the lp,w may be above reproach.

It is therefore ordered that the provisional writ heretofore granted he set aside, and the peremptory mandamus is refused at the costs of the relator.


author: Spencer, J.

text:
    No. 6371.
    State ex rel. John Klein & Co. vs. Ed. Pilsbury, Administrator of Finance, etc.
    Any third person, who demands no subrogation, may tender to a creditor, either in his own name, or in that ol the debtor, the debt due by the latter, in whatever species of property the debt is payable, and compel the creditor to accept the payment in that property.
    In a mandamus proceeding to compel a public officer to receive warrants in payment of a debt, the issue of the genuineness of the warrants may be passed on.
    Warrants issued by a police board, which are not in the form required bv law, in order to bo received for taxes, will be rejected.
    A PPEAL from the Superior District Court, parish of Orleans. Lynch, J.

      John Bay, for plaintiffs and appellees.

      Sam. P. Blanc, Assistant City Attorney, for defendant.
   The opinion of the court was delivered by

Spencer, J.

Plaintiffs are brokers of said city. They allege that as such they were employed by a number of firms of New Orleans named in their petition, to pay for and obtain their several licenses from said city. That in pursuance of their said employment, relators had applied to defendant, Ed. Pilsbury, Administrator of Finance, for said licenses, and had tendered to him in payment therefor, certain Metropolitan Police warrants described in relators’ petition. That although said warrants are by express law made receivable by the city for such licenses, yet the said Administrator in disregard of his plain duty refuses to receive them, and issue said licenses. Wherefore he prays for mandamus which was granted nisi.

The defendant filed various exceptions — insisting in this court however only on the third one, which was in substance, that relators have no real interest in the matter; theirs are not the licenses to be paid, and they have no right to maintain an action to require the city officer to receive for the licenses of others, the warrants belonging to the relators.

This exception was not well taken. C. C. (old) art. 2130 — “An obligation may be dischargedby any person concerned in it, such as a co-obligee or surety. It may even bo discharged by a third person no way concerned in it, provided that person act in the name and for the discharge of the debtor, or that, if he act in his own name, he be not subrogated to the rights of the creditor.”

Art. 2131 — A third person may for the advantage of the obligor, put the obligee in default by offering to perform the obligation on the part of the debtor, even without his knowledge; but it must be for the advantage of the obligor, not merely to change the creditor.”

In the case before us it is alleged and proved that relators acted as the- employees, or at least at the request of the debtors, and we think they have the right, under the above articles to compel the creditor to accept payment — and it is not material whether they are acting in their own names or those of the debtors, as they do not seek or demand a subrogation, but a discharge of the debtor.

Defendant further denies the right of relators to proceed by mandamus, and sets up in defense that the warrants tendered are of doubtful authenticity and legality, and that he believes many of them are spurious and not genuine. Ho insists that the relators must first sue and establish the validity and genuineness of the warrants, before proceeding by mandamus.

We do not think so. Act No. 33 of the Legislature of 1874, declares in so many words that these police warrants shall be received “for all licenses * * * due or to become due ” the city. The right to pay licenses therefore with these warrants is indisputable, unless said act be unconstitutional, of which we find no evidence. Our predecessors we think correctly held these warrants to be so receivable in the case of “ the State ex rel. Ed. Lubie vs. the Administrator of Finance,” not yet reported. This law does not require that these warrants be recognized by judgment, before being legal tender for such license-taxes. It requires the city to receive them in payment. True if the administrator has doubts of their genuineness he may refuse and ought to refuse them, until there is proof thereof — just as he ought to refuse to take United States currency tendered, if he doubt its genuineness, if the holder of these warrants can not compel their receipt, until he has put them in judgment against the city, the law would be a dead letter; for it does not authorize the payment of licenses, in judgments, but in warrants, which would in the ease supposed, be merged in the judgment and therefore not within the terms of the law. The fact that the city disputes the genuineness of-these warrants, is a mere incidental issue, which courts must and can determine, when arising in proceedings by mandamus. 'Thus when a public officer is proceeding by mandamus for possession of the records-of his office, if denied, it must be made to appear that he is the person exercising the functions of that office. And so of other collateral issues without number, which inevitably arise. If it were held that in a proceeding by mandamus incidental questions of this kind could not be determined, then indeed would the process be an empty form. If relators or those in whose interest they act, were tendering United States currency or coin, instead of warrants, in payment of the licenses, such a rule would leave them remediless, if the Administrator •saw fit to dispute the genuineness of the bills or coin tendered. Yet we presume there can be no question of the right of the debtor of a license to proceed by mandamus, to compel the Administrator to receive currency in payment. Police warrants are as much legal tender for 'that purpose as currency. The remedy of the debtor is the same in both cases.

On the Merits.

It seems that a large number of the warrants tendered in payment, were signed by the “ chief clerk ” and “ accepted ” by the “ treasurer ” of the Police Board — and issued early in the year 1869, for fiscal year 'of 1868. The only law then in existence authorizing the issuance of •these warrants was the act creating the Board of Metropolitan Police, -page eighty-five acts of 1868. By its thirtieth section it requires said warrants to be signed by the president and any two other members of the board, attested by the chief clerk.”

A board, such as that of the police, is a mere creature of the law, possessing no powers not conferred by statute, and when, without authority by legislative enactment to issue a warrant or note, all such paper when issued, is null in the hands of whomsoever it falls. 5 Denio, 517; 4 Denio, 520; McClure vs. Bennett, 1 Black, f. 189, and Mears vs. Graham, 8 ib., 144. A fortiori, where the form of warrant is-prescribed, any other kind of warrant is null and void; no paper, except that specially permitted, Can possess the least effect. Little Rock vs. State Bank, 3 Eng. (Ark.) 227; Damon vs. Grauly, 2 Pick. 345; Randall vs. Vanbechten, 19 Johns, 60; 7 Cranch. 229; 2 ib., 127.

The warrants therefore issued by the chief clerk and accepted by the treasurer, were not issued as required by law, and are not such warrants as the law requires the city to receive for license-taxes.

The decree of the court below was therefore erroneous, so far as it-compelled the Administrator to accept these warrants in payment. They are of numbers and amounts following:

No. 1969..............'.....$91 67

2807................... 91 66

1970..................-. 83 33

1945.................... 83 33

1946................... 83 33

1944................... 83 33

1953................... 83 33

2294................... 72 33

1974................... 83'33

1981................... 72 33

190................... 45 12

669...................' 13 92

302........... 100 00

140........ 30 25

303....... -.100 00

572...................200 00

556...................100 00

304...................100 00

530................... 15 00

6923................... 67 20

6924.................'.. 77 96

671................... 14 40

508...................300 00

567...................300 00

562.......‘............300 00

559...................100 00

558...................100 00

553...................100 00

No. 1959.....:.............$91 67'

1971................... 83 3$

1965................... 83 33.

1942................... 83 33-

1976................... 83 33-

2812................... 77 77

1984................... 72 33-

1962................... 83 33:

1978................... 83 33:

6721................... 83 33-

191................... 45 14

670................... 12 00

120................... 66 66

21................... 32 00'

300...................100 00

557...................100 00

124................. 4 00)

5867.......■..........79 33'

6922................... 77 96-

6924................... 80 65

672................... 13 92.

666.................... 15 00'

573...................200 00‘

580...................200 00*

7878....................250 00-

560...................100 00'

'555...................100 00-

It is therefore ordered adjudged and decreed that the judgment of the court below be so amended as to include among the rejected warrants,.those above described, and as thus amended that said judgment be affirmed — relators paying costs of appeal and defendants those o£ the court below.


text:
    No. 5449.
    Catherine Riley, Tutrix, vs. State Line Steamship Company.
    The owners of a vessel are not liable to the employee of a stevedore' who has full' charge of the unloading of the vessel, for inj ury to the employee caused by defective tackle furnished by the vessel, when it is shown that the tackle had no apparent defect and that the stevedore was an experienced, and competent one, who had the exclusive employment of his laborers, and control of the work. The owners are not liable for any injury caused b.y a defect in the tackle, arising from the ordinary wear and tear, unless a knowledge of such defect is brought home to them.
    A PPEAL from the Sixth Bistrict Court, parish of Orleans. Saucier, J. O. Trial by jury.

      Frank MoGloin and J. O. Nixon, Jr., for plaintiff and appellee.

      U. H. Briján, Jr., for defendants.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff brings this suit to recover $25,000 damages, caused by the death of John Moriarty, her husband; $10,000 of the sum claimed is damage done to the plaintiff and her children themselves; $15,000 for damage done to John Moriarty, the right to which was transmitted to them at his death.

The facts are that while the steamship “ Alabama,” of the defendants’1 line, was being loaded at New Orleans, in May, 1873, an iron wheel, over which worked the rope for raising and lowering freights into.the hold of the ship, and which was of course suspended above the hatch, broke or bursted into two pieces — one of .which, descending, fell upon the head of John Moriarty who was at the time, employed in the hold, assisting in stowing the cargo, from the effects of which blow he died very shortly after.

The contract for loading and unloading the vessel on that trip was. taken by Joseph Oooper, an experienced stevedore, and he had full and entire control of the work. The vessel, as. customary, furnished “ the', gins,” as this hoisting apparatus .was called. Oooper employed and controlled absolutely his own laborers. Among others, he employed Brook-man,'a boss screwman, who in his turn employed the said Moriarty, and it was as such employee that he was working at the time-of the injury..

The vessel was a very fine one, entirely new, and this her first voyage. It is shown that the vessel was well supplied with tackle of all sorts, having no less than three of those gins or pully wheels on board.

The plaintiff asserts the liability of the steamship company on two grounds;

First — That as the vessel furnished this gin, the company-is responsible for any loss or damage resulting from its defects, and that in point of fact said gin was old, worn out and unfit for its uses.

Second — That Cooper being an employee of the company, it is responsible for his neglect, in not having the gin properly oiled from time to time, while using it.

The principal issue of fact is about the state or condition of this gin, and the oiling of it.

As might be expected, there is a good deal of contradictory swearing. Brookman, the head screwman, especially, swears stoutly that the hole through the wheel (or sheave as it is called), was worn to nearly twice its .ordinary or original diameter, and that the pin on which- it revolved was also much worn, and that they were not kept properly oiled. Other witnesses, co-laborers of Brookman, speak with more or. less positiveness to the same purport. Per contra, the defendants prove by witnesses that this gin was oiled; that they oiled it. Maginnis, the foreman of Stevedore Cooper, swears that he himself “ rigged” the gin — i. e., he put it up and prepared it for unloading the vessel on her arrival at the bar. He says this gin was new when he fixed it and suspended it for work. It was suspended about twenty feet above the" decks. His statements are strengthened by the proof, not contradicted, that this was a new vessel, and her tackle generally new. At all events, Cooper and Maginnis, who were both men of long experience, thought the gin good and sufficient, and could have had it replaced at any moment, if they had thought differently.

There is no proof that there was any apparent defect in this gin, at the time the company furnished 'it to Cooper and Maginnis, a few days only before, for unloading the vessel. On the contrary, at that time it is •shown directly and by the probabilities of the ease, that it was apparently good, sound and new. It is very true that the gin was in point of fact, either defective or insufficient, for had it not been so, it would not have broken; but it was apparently good and sufficient, in the opinion of men of experience and competency to judge.

Under our law, article 2320 C. C., the responsibility of masters or employers only attaches when they “might have prevented the act which caused the damage, and have not done it.”

- In a case like this, we think the utmost extent of the liability of the company would be, that they should employ a stevedore of experience and good repute, and that the tackle furnished on his requisition should be apparently good, satisfactory to the stevedore, and such as is usually furnished for like purposes. For non apparent defects, of which the company know nothing, and which perhaps were inherent in the metal itself, out of which the wheel was cast, it would be unreasonable and unjust to hold it responsible, as well as unlawful. We all know that defects may and often do exist in metal, and especially in castings, which no human care and foresight can detect.

It was sufficient, and the company discharged its full obligation when it furnished to an experienced stevedore, a tackle apparently good and sufficient and satisfactory. The company had nothing to do with the working or running of this machinery. It had no control of that. Cooper was an independent contractor, employing his oion labor, and pursuing his own methods of doing his job. The company was under no obligation to look after the tackle further than to see that it was apparently good when delivered. If by wear and tear it became insufficient, on information and demand to that effect, it was its duty to furnish other tackle. We see no lack of care in the conduct of the company in this case. Men are but mortals, and are not expected to have the prescience of gods. Whether the wheel and axle became weakened by .wear and tear, and for want of oiling, are disputed questions; but in our opinion are matters of no moment in the decision of this cause; for we hold that unless notified thereof, or at least knowing the facts, the company is not liable for such defects as were produced by the working of the tackle. As a matter of fact, however, we are not disposed to believe that the breaking of this wheel was from the wear of the sheave, which it seems, even by Brookman’s testimony, was increased in diameter only from one-half to one inch.

In conclusion, we see nothing in the law or facts of this case justifying a judgment against the defendants.

It is therefore ordered, adjudged, and decreed by the court, that the verdict of the jury and judgment appealed from be annulled and avoided, and that plaintiff’s demand be rejected with costs of both courts.

Marr, J., recused.


author: Manning, O. J.

text:
    No. 6719.
    F. C. Malain et al. vs. the Judge of the Third Judicial District, et al.
    The bond for a suspensive appeal from a judgment dissolving an injunction, need only be for an amount that shall exceed by one half the damages decreed by the judgment of dissolution, and costs.
    An application for a mandamus should be made in the name of the State, but it is not absolutely necessary to do it, when the petition contains substantially what the law requires.
    REPLICATION for a mandamus.

      Z. T. Fournet and JR. Be Blanc, for relators.

      Jos. A. Breaux, for respondents.
   The opinion of the court was delivered by

Manning, O. J.

E. C. Malain and Jasper Gall allege that the first named had obtained an injunction, restraining the execution of a writ of' fieri facias against his property, upon a judgment for seven thousand dollars in favor of I. C. Cade, which injunction' was dissolved with two ■ hundred dollars damages. Gall was the surety on the injunction bond,. and its amount is one thousand dollars.

A suspensive appeal was prayed from this judgment, which was refused by the district judge unless the parties executed an appeal bond exceeding by one half the amount of the original judgment. Afterwardson an allegation, supported by oath, of the absence of the district judge, application was made to the parish judge for the order, which was-granted upon the appellants furnishing a bond for fifteen thousand dollars. They refused to give bpnd for this sum, and applied for a mandamus to compel the judges, or either of them, to grant them a suspensive appeal upon a bond exceeding by- one half the judgment for-damages and costs. This was granted in the alternative form, and we have now the answers and exceptions of the respondents to the petition of the appellants.

In this petition, it is alleged that a bond for twelve thousand dollars-was furnished when the injunction was obtained. This is not true, if the certified copy of the injunction bond, produced by the relators, is a correct one. The amount of that bond is only one thousand dollars. If' proper and timely action had been taken by the creditor, whose process-was injoined, to set aside the injunction because of the insufficiency in amount of that bond, we should not have refused him relief. But that-question is not before us. The, creditor submitted without complaint to-the issuance of the restraining writ on a bond wholly inadequate to his protection, and went into trial of the injunction. The question now to-be answered is, whether the appellant from a judgment dissolving his injunction must give a bond apportioned to the judgment, the execution of which was injoined, or the judgment dissolving the injunction. The injoined judgment was for seven thousand dollars. The judgment of dissolution was for two hundred dollars and costs.

It has'been long held that the amount of the judgment of dissolution regulates the amount of the appeal bond. State vs. Judge of 1st District, 19 La. 167. Stackhouse’s case, 21 Annual, 152. The relator is therefore entitled to a suspensive appeal from the judgment dissolving his injunction upon executing a bond exceeding by one half the amount of damages adjudged against him and the costs.

The respondents excepted to the form of the application for a mandamus, that it was not made in the name of the State. That would have been more regular, but is not absolutely essential. The writ must necessarily run in that form, and since the petition contains the substantial requisites for obtaining the relief sought, we have concluded' after some hesitation to grant it.

It -is ordered that the mandamus be made peremptory at the costs of the respondents.

Mr. Justice DeBlane recuses himself in this case.


text:
    No. 6545.
    Marie L. Beebe vs. James P. Guinault et al.
    The service of citation of appeal before the filing of the appeal bond, is not ground for dismissing the appeal.
    The decree of the lower court granting, or refusing to grant an injunction, may be suspensively appealed from.
    The plea of res adjudicata will not be considered, on a motion to dismiss. It must be referred to the merits.
    A party applying for a writ of injunction, who has complied with all the conditions prescribed by law for its -issuance, has a right to it, and courts have no legal power to refuse it.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      J. Q. A. Felloios and B. Shackelford, for plaintiff arid appellee.

      W. F. Murphy, for defendant.
   On Motion to Dismiss.

The opinion of the court was delivered by

Manning, C. J.

The motion to dismiss is based upon several grounds;

. 1. That at the time of service of citation of appeal, no bond had been filed.

It appears that the clerk issued the citation before the appeal bond! was filed. This would be a good reason for asking for time to make a. new citation, but is not for a dismissal. Irregularities of that kind, not imputable to the appellant, are not good cause for dismissing an appeal-Ratliff vs. his Creditors, 14 La. 292. Comstock v. Paie 17 La. 515. Grove v. Harvey 3 Rob. 271.

2. That no appeal lies from the exercise of discretion by the judge in either granting or refusing an injunction.

. It has long and often been held otherwise. This court will not interfere by anticipation with the exercise of that discretion by the inferior-court, but it will revise the judgment in order to ascertain whether the-discretion has been properly exercised. In every case in which the law leaves anything to the discretion of a court, a sound and legal discretion is understood, and not an arbitrary one. Broussard v. Trahan 4 Martin 503, Sorrel v. St. Julien, Idem, 509, Girod’s case, 18 La. 394. State ex rel. Bebee v. Judge of 6th. Dist. Court, Opinion book 45 p. 625.

3. That no suspensive appeal can be granted from a judgment on a rule nisi.

Appeals lie from final judgments. The judgment in this case refused the injunction. It will be difficult to find, a judgment possessing a stronger element of finality than that.

4. That the executory process issued in this case was executed before an appeal was taken.

We find no evidence of such execution in the record.

5. That all the issues made in this appeal were made in another suit, and were passed upon by this court.

That is a matter to be heard on the trial, and determined thereafter, and cannot be a ground for dismissal,

The motion to dismiss cannot prevail.

The plaintiff applied to the lower court for an injunction, restraining the enforcement of an order of seizure and sale, alleging that she was under age when she executed the note and act of mortgage upon which the order was issued, and that the consideration of the note was not for her benefit, and that she was induced to execute them by the fraudulent representations of the defendant. These representations are then set forth in detail, and she made the required oath to the truth of her allegations.

An order was thereupon made by the judge, requiring the defendant to shew cause why the injunction should not be granted.- Upon its trial the defendant’s affidavit was permitted to be introduced in evidence, in which he denies the truth of the plaintiff’s allegations, and sets forth with amplitude equal to her own his version of the 'causes of the litigation. Other testimony, offered by the defendant, was received, and upon considering the case as thus presented, the injunction was refused. The plaintiff appeals from this order or judgment.

The practice of issuing these rules nisi has become frequent, and is sanctioned by certain Buies adopted by the judges of the District courts of this city, which appear to have been generally acquiesced in. It would seem that some preliminary inquiry, assimilated in some degree to that prescribed by these rules, is both necessary and proper to be instituted, before a court should be required to order the issuance of a writ which inhibits a party from prosecuting an apparently just claim, and effectually and peremptorily clogs the advance of a creditor in its enforcement. Doubtless the necessity of such inquiry prompted the courts to attempt to provide the means for instituting it through the instrumen-. tality of these rules, but the authority for such provision must emanate from a different source. The legislature alone can amend the Code of Practice, and it is to the articles of that code which treat of injunctions that we must look for guidance as to the prerequisites for obtaining them.

These prescribe that in order to obtain an injunction the party applying for it-must present a petition to that effect to a competent judge, stating under oath the facts which, according to his belief, render an injunction necessary, annexing to his petition his obligation in favor of the defendant for such sum as the court may determine, with the surety of one good and solvent person residing within the jurisdiction of the court, to secure the payment of such damages as may be sustained by the defendant, in case it should be decided that the injunction had been wrongfully obtained, art. 304. Other articles have reference to specific circumstances under which the writ may issue, and provide for dispensation with the surety, and also accord to the party injoined the right to require proof in a summary manner of the truth of the facts upon which the writ is demanded, arts. 738 — 741.

If these requirements of the Code are complied with, the party applying for the writ is entitled to it as a matter of right. The penalty for obtaining it without sufficient cause is- prescribed in the same article that imposes the conditions under which it is to be obtained.

The writ of injunction has been invoked of late years with afrequency that requires discouragement, but in the present state of the law, the remedy for these invocations, when made on frivolous pretenses or for coveted delays, rests with the courts. And when the penalties shall have been rigorously enforced through the medium of judgments for damages which the Code not only allows, but commands, it will not require a very long series of examples to attest the determination of the tribunals to deter litigants from converting a conservatory process, which was intended to be a beneficent shield, into a weapon of obstruction and oppression. Therefore

It is ordered, adjudged, and decreed that the order and judgment of the lower court is avoided and reversed, and the cause is remanded to be proceeded with according to law, the defendant paying the costs of appeal.


author: DeBlanc, J.

text:
    No. 6583.
    Clement & Tremoulet vs. Achille Sigur and Mrs. L. J. Sigur.
    Going into the Confederate lines, and remaining there during the late war, by the tutor of a minor, did not forfeit his tutorship.
    The consideration, of a negotiable note given by the tutor of the minor, as such, on the advice of a family meeting, may be inquired into in the hands of the payee, or of any third person who has taken.it after maturity.
    The tutor can not revive a debt against a minor which is prescribed.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Dewing,. J.

      Samuel Matthews and E. D. White, for plaintiffs and appellees.

      T. E. Grace and Barrow & Bope, for defendants.
   The opinion of the court was delivered by

DeBlanc, J.

The appellant, Achille Sigur, was born on the first of October, 1853. When his parents died, he was a child and remained with Mrs. Laurent J. Sigur until he was emancipated, on the sixth of March, 1872. John Adolphe Sigur was appointed as his tutor in the month of December, 1858.

On the fifth of March 1869, by virtue of an order from the probate court of the parish of Iberville, a meeting of the family of Achille Sigur was held before a notary public of said parish, and authorized John Adolphe Sigur, as tutor of said minor, to execute, in the latter’s name, and to secure by mortgage on his property, three promissory notes, one in favor of Zalina Halphen, wife of Albert Gaillard, one to Charles Oscar Lauve,.and one to Mrs. Laurent J. Sigur; said notes to bear eight per cent interest from date, and not to exceed, in the aggregate and exclusive of interest, the sum of $15,000.

The deliberations of that meeting were approved and homologated by the court on the sixth of March 1869, and, on the thirteenth of March 1869, in accordance with the advice of said meeting and the order of the court, John Adolphe Siguí’, as tutor of Achille, subscribed and delivered three notes, one to Mrs. Gaillard for $1122 20, another to Mr. Lauve for $950, and a third to Mrs. Sigur for $7880 53, payable one year after date, at the Bank of America, in the city of New Orleans, with interest as therein stipulated.

The note in favor of Mrs. Sigur is now held by John B. Clement & Antoine C. Tremoulet. They have sued on it and allege that it was transferred to them for a valuable consideration and before maturity.

In his answer to that suit, defendant, after a general denial, admits the genuineness of the signature of John Adolphe Sigur to the note, but avers that he alone is liable for its amount, because:

1. To the knowledge of the payee of said note, and at'the date it was •delivered, lie (respondent) had large sums of money in the hands of his tutor:

2. The family meeting which authorized the execution of said note was not composed as the law requires, and his tutor was, therefore, without authority to sign and deliver the same.

3. The proceedings by which he became the purchaser of the property .mortgaged to secure said note are utterly null and void.

4. The family meeting then convened by his tutor was imposed upon by false representations and fraudulent combinations.

5. At the date of his appointment as respondent’s tutor, John Adolphe Sigur was his debtor, and said appointment an absolute nullity.

6. If John Adolphe Sigur ever was his legal tutor, he became functus officio; in 1862, by his refusal to take the oath of allegiance to the United States, and by removing to and remaining within the Confederate lines, in disregard of general order No. 41.

7. The claim of Mrs. Laurent J. Sigur, when acknowledged by his tutor, was not due; if due, was barred by the prescription of three, five and ten years.

The first four grounds urged by appellant are untenable. To sustain either of them, we would have to look beyond and reverse decrees of court, which have not been appealed from, the parties to which are not all before us, and which can not be collaterally attacked. 15 An. 27. 23 An. 175. 24 An. 224.

The sixth ground is as untenable as the others. In 1862, Sigur was a member of the Confederate Legislature, and he simply discharged his duty in following that Legislature to Shreveport. If, in so doing, he forfeited his trust, then hundreds of tutors were released during the war, and in hundreds of cases, not they, but their wards would suffer from the effects of the alleged forfeiture. Would that be just ? Assuredly not. . As did the people he represented, when his cause was lost, Sigur returned to the United States an unrestricted and sincere allegianee, and the order relied upon, left unimpaired the rights and liabilities attached to his trust.

In the palmiest days of our jurisprudence, the highest court of the Republic said: rtIt may not be unworthy of remark that it is very unusual, even in cases of conquest, for the conquerer to do more than displace the sovereign and assume dominion over the country. The actual usage of nations, which has become law, would otherwise be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private rights should be annulled. 7 Peters p. 87.

What is the doctrine taught by Vattel ? “ Though one of the parties may have been to blame in breaking the unity of a State, and resisting the lawful authority, they are not the less divided in fact. Besides, who shall judge them ? Who shall pronounce on which side lies the right or the wrong. On earth they have no common superior. They stand, therefore, in precisely the same predicament as two nations who engage in a contest, and, notwithstanding the belligerent occupation of a portion of a State, its municipal or private laws remain unchanged.”

The vitality of the decree of a court can be destroyed but by a court, and, as the tutorship springs from the law and a decree, no military order could, can, or ever did vacate a tutorship.

The seventh ground urged by the defense has arrested our attention. The note sued upon was signed by John Adolphe Sigur, as tutor of Achille. In that capacity he has granted the mortgage now sought to be enforced. The emancipated minor has attained the age of majority, and he is before us contending:

1. That the claim of Mrs.,Sigur, when acknowledged by his tutor, was not due.

2. That, if due, it was prescribed at the date of the acknowledgment.

What proof have plaintiffs introduced of defendant’s indebtedness to Mrs. L. J. Sigur ? Henry Tremoulet testified “ that the origin of said indebtedness was the expenses incurred for rearing and educating him, for back taxes and costs. From the college bills which he saw, he judges that Achille was indebted to Mrs. Sigur for much more than she claimed. They were both wealthy.”

To his declaration no amount is attached, no date fixed. Howsoever respectable the witness, can a court, on that naked declaration, condemn the defendant to pay over $12,000 ? The minor was wealthy, he was interested in two plantations, entitled to considerable revenues, and, nevertheless, his expenses were not paid and, to-day, threaten to wrest from him the scanty remnants of a large fortune.

On the tenth of June 1866, Mrs. L. J. Sigur wrote from New York, to John Adolphe Sigur, and, in that letter, she states; “ J usqu’á present je ne t’ai pas présente le compte de mon fils adoptif, Achille; ma position ayant changó, je suis forcée de le soumettre, afin que comme tuteur tu l’approuves et aie l’obligeance do l’envoyer á Mr. Bernard Turpin. Tu verras, par le compte que je t’envoie, que les premiers années no sont pas comprises etc.”

When was that account sent, when acknowledged by the tutor? We find on the margin of said account, from Mr. Turpin, who, it is probable, knew nothing about it, a declaration in the following words and figures “ Certifió correct, Nile. Orleans, le 14 fóvrier 1868.” In 'the petition presented by the tutor to convene a family meeting, for the purpose of authorizing him to furnish a note to Mrs. Sigur, the latter’s account is mentioned as oneclaimed ” by her, and its first acknowledgement is evidenced by the note itself, in 1869.

The balance alleged to be due Mrs. L. J. Sigur, on the sixth of May 1866, was, according to the account filed on the sixteenth of July 1869, $4320 53, From the evidence of Henry Tremoulet, a witness of plaintiff, Achille’s indebtedness to Mrs. Sigur was composed of that balance, Of sheriff’s, clerk’s and attorney’s fees and of back taxes due on the Rich-land and Old Hickory places.

There seems to be an error in this statement, as further on he said: “ The origin of the note sued on in this case was for the fees of Oscar Lauve as counsel for the minor Achille; as well as he could recollect, a part of those fees was for services rendered to the minor in the proceedings by which the property was sold and the mortgage given to secure the note mentioned in the family meeting.”

One reason to believe that this is an error is that Oscar Lauve testified that “the note sued upon in case No. 1610, another and a different suit, was given to him for professional services rendered to the minor Achille Sigur, in the matter of his father’s estate, and in conformity with the deliberations of the family meeting held on the fifth of March, 1869.” We can not and do not presume that these fees were included in the note furnished to Mrs. Sigur, as, otherwise, they would have been twice charged against the minor. It is probable that Tremoulet’s evidence referred to the note furnished to Mr. Lauve and sued upon by Mrs. Gaillard.

From the tenor of Mrs. Sigur’s letter, it seems evident that it was only in 1866, after the disasters of the war, that she determined to claim what she spent for Achille Sigur, her adopted son, from 1858 to 1865. That supposition is strengthened by the fact that she, the minor,.and his tutor were rich — and that, from the date of his parents’ death, until the emancipation of the slaves, the minor could have been amply provided for with his own and his tutor’s means. His circumstances at that time, not only did not justify, but precluded the contracting of any debt in his name, for his rearing and education. His revenues should have been applied to that object. Mrs. Sigur’s right to charge for that object commenced in 1866, from the date of her letter, not before.

Gould Achille Sigur inquire into the consideration of the note signed and delivered by his tutor, and which had passed in the hands of third parties ? He certainly could, and for two reasons. 1st: the plaintiffs themselves, in attempting to prove the consideration of the note, had opened the door to the evidence adduced by defendant to repel the presumption of consideration growing out of the execution and delivery of said note by his tutor. 2d: at the maturity of said note, as shown by the protest, it was in the hands of Mrs. Sigur’s agent, belonged to her, and was protested in her name. It was, therefore, transferred after maturity, after it was dishonored, and affected by all the equities between the original parties.

In the petition filed by John A. Sigur, as tutor, on March 3d, 1869, he stated “that the costs incurred for the sale of the two plantations and the taxes thereon due amounted to about $1600; that said taxes and •costs were paid by Mrs. L. J. Sigur, and thereby she became the credit- or of the minor Achille for $560.” These plantations were sold under writs of fieri facias issued out of two judgments against John A. Sigur, executor, and an order from the probate court in the matter of the estate of Theodore Sigur, and there is nothing in the transcript to show the amount of either the taxes or costs. It .can hardly be expected that, under such evidence, the appellant can be held liable for .an amount of eosts-mentioned, but not fixed even in the sheriff’s return.

The family meeting — it may be said — has acknowledged Mrs. Sigur’s claim. On what evidence ? The unsworn allegations of the tutor’s petition. Her claim is not supported by her own affidavit or that of her agent, and — though we are convinced that neither of these parties was guilty of the fraud - charged against, them, we can not — without proof— or in disregard, of the only proof we have before us, allow the whole of the claim transferred to plaintiff by Mrs. L. J. Sigur. That a portion of that claim is due, we do not deny, but what is that portion ?

Defendant,' in addition to the other grounds of defense, has filed, in bar of plaintiff’s action, the plea of prescription, and that plea must prevail as to seven of the items in the account or statement of Mrs. L. J. Sigur, filed on the sixteenth of July, 1869. Those items are the following : $1500, $2400, $500, $350, $41 25, $86 10, $40 03. . These claims were prescribed at the date of their acknowledgment by the tutor, and he was without authority to renounce an acquired prescription. Rev. C. C. 3462. Old O. 3425.

Howsoever reluctant we feel to reopen and continue a controversy submitted to us, we are — nevertheless—constrained to remand this case, in order to give plaintiffs an opportunity to prove what Mrs. L. J. Sigur has or may have paid for the minor Achille Sigur, from the (6th) sixth of May (1866) eighteen hundred and sixty-six, inclusively, and up to the sixth (6th) of March (1869) and which may have been included in the note furnished to the said Mrs. L. J. Sigur, on the thirteenth of March (1869), eighteen hundred and sixty nine, by John Adolphe Sigur, as tutor of said Achille Sigur.

This decision renders unnecessary an examination of the bills of exception filed by the parties in the district court and not urged by them in-this court, or of the objection made by defendant to the filing of the amended answer. In that amendment, the only important ground is the denial of the minor’s indebtedness to Mrs. Sigur, and it was but the rehearsal of one of the averments of the original answer.

It is, therefore, ordered, adjudged and decreed that, as concerns the ■appellant, Achille Sigur, the judgment of the lower court be, and it is hereby annulled, avoided and reversed at plaintiffs’ costs, and their demand rejected for all the items in Mrs. L. J. Sigur’s account, charged before the sixth of May, 1866, and included in the note of the thirteenth of March 1869, sued upon by plaintiffs.

It is further ordered, adjudged and decreed that, in other respects, this case be remanded to the district court to be proceeded with according to law and this decision, reserving to the parties their rights of action and defense, against each other, from and including the sixth of May 1866.