text:
    No. 10,828.
    Mrs. Jessica K. Smith vs. Mrs. E. P. Smith, Guardian, etc.
    1. Although the law fixes the domicil of the wife as being that of the husband, universal jurisprudence recognizes an exception in a case where the husband’s conduct has been such as to furnish lawful ground for a divorce, and which justifies her in leaving him, and necessarily authorizes her to live elsewhere and acquire a separate domicil.
    2. If a wife who had been married in Maine, on discovering proofs of her husband’s adultery, leaves him and returns to her former home in Maine, and establishes there a bona fide domicil, her marriage status becomes subject to-the jurisdiction of that domicil, whére courts may lawfully entertain her action of divorce.
    3. If the defendant in such action have had actual or constructive notice in accordance with the statutory provision of the State, the divorce will be held valid as to both parties, by comity, in such States as have adopted the policy of such divorce proceedings by similar legislation.
    4. Article 142 of the Civil Code of Louisiana is strikingly similar to the statute of Maine, in authorizing the wife who was married in the State to return thereto, and, on re-establishing her domicil, to obtain divorce from her non-resident husband, who hasi given her lawful cause therefor. This authorizes the courts-of either State to give effect to such divorces granted in the courts of the other-in such cases.
    5. In such cases, however, bona fide residence or domicil is an essential prerequisite to jurisdiction, and the decree is not conclusive on jurisdictional facts, and the absence of jurisdiction for want of bona fide residence may be-shown in any court.
    6. This court will not recognize the validity of such foreign divorces where the-husband has maintained his Louisiana domicil, without full and conclusive-proof of the bonafides of the wife’s separate domicil.

      7. Without determining its validity vet non, the Maine divorce in this case is held to be one, presenting, on its face, no intrinsic nullity, and subject to attack only on proof of intrinsic facts destroying the jurisdiction; and, therefore, entitled to weight in determining the good faith of a second marriage contracted between the husband and a third party.
    S. The sole condition prescribed by the law to give civil effects to a putative marriage is good faith on the part of one or both the parties. Such good faith means a belief, both honest and reasonable, that the marriage is valid and in violation of no legal prohibition. The facts in this case satisfy us, beyond doubt, of the good faith of plaintiff.
    y. The law, in attributing to a putative marriage “ civil effects,” uses those words without restriction, and necessarily means all civil effects given to marriage by the law. Such a marriage, contracted in good faith, produces ail the civil effects of a valid marriage, up to the moment when its nullity is judicially pronounced.
    10. The right to the marital portion conferred by Article 2382, Rev. C. 0., is a civil effect of marriage, and arises in favor of the putative, as well as of the legitimate, spouse, when the marriage.has not been annulled during the life of the deceased. Spanish, French and Roman law on the.subject referred to.
    11. The terms “necessitous circumstances,” used in Article 2382, Rev. O. 0., are used relatively to the fortune of the deceased, and to the condition in which the claimant lived during the marriage.
    APPEAL from the Oivil District Court for the Parish of Orleans. Voorhies, J.

      Rice & Armstrong for Plaintiff and Appellant:
    1. The Legislature of a State, which was the residence of one or both parties, and where their marriage was celebrated, may prescribe the manner in which suit for divorce may he prosecuted in its courts, though only one of the parties be in, or a resident of, the State where such suit is instituted. Rev. Stat. of Maine, 1871, p. 188, Secs. 2, 4; Rev. C. O. La., Arts. 141, 142, 145; Warren vs. Inhabitants of Warren, 43 Me. 418; Cheevor vs. Wilson, 9 Wal.,U. S. S.,C. 123; 2Bish. on Mar. and Div. 475; Shouler on Husband and Wife, See. 574; Robbins vs. Martin, 43 An., not yet reported; Young vs. Upshur, 42 An. 362, and cases cited; Durrityvs. Husband, 42 An. 357; in l’ennoyer vs. Neff, 74 U. S. S. C. 734; Cooley on Const. Lim. 6th lid., p. 497.
    2. “ Substituted service,” whether by publication, as provided by law of certain States, or through an attorney appointed by the court, as in Louisiana, or by ' personal service in a foreign jurisdiction (the purpose be!ng to bring knowledge home to the defendant), is equally efficacious to give jurisdiction, as against an absentee, when the suit is in the nature of a proceeding in rem, or to determine the status of parties thereto. C. C., Arts., 141,142 and 145, and eases cited above; Harding vs. Alden, 9 Maine, 140.
    3. The court of one State having jurisdiction, full faith and credit must be given in every other State to the decrees of such court. Const, of U. S., Art. 4, Sec. 1, par. 1.

      4. Marriage by parties in good faith produces, in Louisiana, allc< civil effects; ” if one party only acted in good faith, marriage produces all “ civil effects ” in his or her favor. O. N., Arts. 201 and 202; C. C., Arts. 117 and 118; and cases cited under No. 5, below.
    0.The good faith referred to in the Civil Code is presumed. Hubbell vs. Inkstein, 7 An. 252; Succession of Navarro, 24 An. 298; McCaffrey vs. Benson, 40 An. 18,14; Olendenning vs. Clendenning, 3 N. S. 438; Sue. of Buissiere, 41 An. 220, 221; Marcadé, Vol. 1, 521, 522; Zacharie, Vol. 3,244; Marcadé, Vol. 1, p. 524; par. 695, p. 522; Zacharie, Vol. 3, p. 244.
    6. Articles 2382, 117 and 118 of the Civil Code are to he construed together; the wife referred to in Article 2382 includes the wife in good faith in Articles 117 and 118; and this irrespective of whether the Spanish law considered or not the putative wife in providing the marital portion. Duranton, Vol. 1, 322, par. 956; ‘Vol. 2, par. 569, 570; Demolombe, Vol. 14, Sec. 172; See Partidas, Vol. 2, p. 1102; Merlin, Repertoire de Jurisprudence, Vol. 26, p. 176.
    7. The “ civil effects ” of marriage, and hence of a putative marriage, are the right of repetition of dowry, right in the community, and the right of inheritance or succession in favor of children of such marriage and of putative wife. The right to the marital portion is the right of inheritance. Marcadé, Vol. 1, p. 525, par. 696; p.527. par. 698; Zacharie,Vol. 3, p.247, note; Duranton,Vol. 1,p.322,par. 956; Demolombe, Vol. 14, Sec. 172; Duranton, Vol. 2, par. 569, 570; Boileux, Vol l, p. 491; Partidas, Vol. 2, p. 1102; Abercrombie vs. Caffrey, 3 Mart. 1*4; Sue. of Piffet, 39 An. 561,562; Connor vs. Connor, 10 An. 450.
    8. The term “ necessitous circumstances,” used in Article 2382, is relative, anil as applied to the widow, relates to the conditions of the husband’s estate, his manner of living with his family, and “ la qualité de son Mari ot le rang qu’clle avaittenu avec lui en son vivant.” Merlin, Repertoire de Jurisprudence, Vol. 26, p. 177. Dunbar vs. Dunbar, 5 An. 159; Sue. Piffet, 39 An. 561; Sue. Costa, 19 An. 45; Sue. Newman, 27 An. 594; Sue. Fortier, 3 An. 104; Connor vs. Connor, 10 An. 450; Gee vs. Thompson, 11 As. 660.

      E. Howard McCaleb, for Defendant and Appellee:
    1. Plaintiff, having manned the deceased while his first wife was still living and the first marriage undissolved by a valid divorce, can not claim the marital fourth. The deceased was incapable of contracting a second marriage until after the dissolution of the first. R. C. C., Art. 93.
    2. A divorce decree obtained by a Louisiana wife against her husband in the courts of Maine, where he never resided, did not appear, and never was legally cited, is an absolute nullity. Under the divorce laws of Maine the courts of that State had no jurisdiction, because the complaining wife did not reside there. Revised Statutes of Maine, Chap. 69, Sec. 2. Residence, as used in this statute, means “ home — dwelling place.” 58 Me. 210; 43 Me. 406; 120 N. Y. 485.

    8. The intention of the wife to acquire a separate domicile for the purpose of obtaining divorce, must be manifested animo et facto, 9 Wall. 108. And she must first lose her old domicile before she can acquire a new one; and this takes a voluntary absence of two years from this State. Ilev. C. O. 46. A married woman has -no other domicile than that of her husband. Rev. O. C. 120.

      4. The libel for divorce does not show affirmatively that the libellant was residing, in Maine at the time the complaint was filed. Secs. 216,228, Stewart on Marriage* and Divorce.
    The city of New Orleans was the married domicile (32 An. ^06; 40 An. 457), and the acts of adultery set out in the bill are averred to have been committed. here. 1 An. 313.
    5. Service of summons on the defendant (issued by a Maine court) by the civil-sheriff of New Orleans, is without any effect or validity. 95 U. S. 727; 45 Hun. 63; 110 XT. S. 701.
    6. The courts of Louisiana will not dissolve a marriage between persons domiciled elsewhere, for causes originating there. 9 An. 34; 40 An. 28. The judgment of divorce in this case is an absolute nullity. 46 N. Y. 30; 76 N. Y. 78. Sucha divorce has been repudiated in the courts of Maine. 78 Maine, 187. * Our courts, look with disfavor upon second marriages. 10 An. 466.
    7. The marriage of plaintiff to deceased while his first wife was living (to her knowledge) and their marriage undissolved, was an absolute nullity. 25 An. 519 24 An. 485. Plaintiff was not even-in good faith. 39 An. 823. She did not take the precautions commanded by law, to ascertain if any impediments existed to prevent the celebration of their contemplated marriage. Duranton, T. 2, No-350; Toullier, T. 1, No. 658.
    8. The effects of good faith in putative marriages are confined to three objects,.. viz : (1) repetition of dowry; (2) rights upon the community; (3) right of inheritance to children born of this putative marriage. Toullier, T. 1, No. 660. But where the marriage is absolutely null and never existed, the question of ' good faith doesnot arise. Laurent, T. 2, No.515; Zacharie, T. 3, 243, Sec. 460.
    9. The marital fourth allowed by Article 2382, E. C. O., comes from the Spanish law, and was not extended to the putative, but only to the legitimate wife. Partidas, Yol. 2, p. 1102; 39 An. 556, This was also the Homan law in regard to the marital fourth. 53 Novel of Justinian, tit. 8, Chap. 6; 117 Novel of Justinian, tit. 18, Chap. 5' 11 An, 658.
   The opinion of the court was delivered by

Fenner, J.

The action is brought by plaintiff, as the surviving wife of Alexander Smith, to recover the marital fourth of his estate, as provided by Art. 2882 of the Revised Civil Code, which declares : £ £ When the wife has not brought any dowry, or when what she has brought as a dowry is inconsiderable, with respect to the condition of the husband, if either the husband or wife die rich, leaving the survivor in necessitous circumstances, the latter has the right to take out of the succession of the deceased what is called the-marital portion; that is, the fourth of the succession in full property, if there be no children, and the same portion in usufruct only,, when there are but three, or a smaller number, of children; and. when there are more than three children, the surviving, whether - husband or wife, shall receive only a child’s share in usufruct, and. he is bound to include in this portion what has been left to him as a, legacy by the husband or wife who died first.”

Alexander Smith was twice married. He was first married to Elizabeth P. Sewell, in 1870, at her home in Wiscasset, Maine, but he was, at the time, a resident of Louisiana, and immediately after the marriage the pair came to Louisiana and established the conjugal domicil in this city. Here they lived together until June, 1881, and four children, still surviving, were the fruits of their union. At that time, the wife having discovered, as she charges, proofs of the husband’s adultery, abandoned the conjugal domicil, and returned to her ane-nuptial home in Wiscasset, Maine. On the 21st of September, 1881, she filed alibel of divorce against her husband, in the Supreme Judicial Court of the county of Lincoln, State of Maine, in the caption of which she describes herself as “Elizabeth P. Smith, of Wiscasset, in the county of Lincoln,” and in which she alleges the facts of her marriage, her former domicil, her children by the marriage, and the grounds for divorce. She further alleged that her husband had a large estate, and prayed for a decree granting the divorce, decreeing her entitled to the care and ■custody of the children, and a reasonable allowance for her own and their maintenance. The court made its order thereon, directing notice to appear on a day fixed, to be served on the libellee, personally, “ by any sheriff or deputy sheriff authorized to serve civil process, in the place where the respondent is found.” The record further shows that personal service was accordingly made on Alexander Smith in this city, by a deputy sheriff of the parish of Orleans. Smith did not appear, and being held in default, the cause was heard on evidence introduced by the wife,'and a decree was entered according to the prayer of libel, including a judgment against Smith for $20,000, as an allowance in lieu of alimony.(

Some two weeks after the entry of this decree, Mrs. Smith left Wiscasset and went to Nashville, Tenn., whereJ her children were •being educated, remained there until February, 1882, then returned to New Orleans, where she spent six years, and finally removed to New York, where she now resides.

From the date of the above decree of divorce, bothjparties have lived and acted, and, in all respects, assumed the character of divorced man and wife. On the demand of the wife’s attorney, Alexander Smith paid the $20,000 decreed by the judgment. Shortly afterwards he filed a suit in the Civil District Court of this city, entitled Alex. Smith vs. His Divorced Wife, E. P. Smith, in which he averred the fact of divorce, his payment of the $20,000, the dissolution of the community of acquets and gains thereby, the failure of the wife to accept the community within the prescribed delay, and asked for a decree, declaring his estate to be his separate property and free from any claim growing out of the former community. Mrs. Smith answered, admitting the validity of the divorce, and judgment was rendered as prayed for.

Both parties undoubtedly accepted the decree of divorce as valid, and undoubtedly believed it to be so.

Even after the death of Alexander Smith, in her petition filed in his mortuary proceedings for recognition as guardian of her minor ■children, she describes herself'as his divorced wife,” and in other petitions she describes herself similarly.

The evidence shows that they both assumed the status of divorced man and wife; that their most intimate friends and acquaintances regarded them as such, and that there was never in the community the slightest question as to their status.

Under these circumstances, in October, 1889, Alexander Smith married the present plaintiff, Jessica McFarland, a young girl living in his immediate vicinity, and whose mother had long known both Smith and his former wife, and who accepted, without question, the universal belief of the community, based on the actions and declarations of both, that they were divorced.

Smith died in December, 1889.

The first wife, as guardian of her minor children, has had them recognized as heirs of their father, and sent into possession of his estate; and against her, as guardian aforesaid, the present action is brought.

The guardian defends on the ground that the Maine decree of divorce was absolutely null and void for want of jurisdiction ratione personae and ratione materias; that, consequently, plaintiff’s marriage was illegal and null, that she is not the surviving wife of Alex. Smith, and has no rights, as such, upon his estate; and, further, denies that she is in necessitous circumstances.

The case presents the following questions, viz.:

1. Was the Maine decree of divorce valid?

2. If invalid, was the subsequent marriage of plaintiff contracted in good faith, and entitled to produce its civil effects?

3. If the marriage produced the civil effects, is the claim to the-marital portion one of such civil effects embraced in the law?

4. Is the plaintiff in necessitous circumstances and otherwise entitled to claim the marital portion?

I.

The validity of the Maine divorce depends upon the question of fact, whether-or not the libellant, Mrs. E. P. Smith, had, at the commencement of the proceedings, acquired a bona fide residence or domicil in Maine.

Although the law fixes the domicil of the wife as being that of her husband, universal jurisprudence recognizes an exception to the rule in the case where the husband’s conduct has been such as to furnish lawful ground for a divorce, which justifies her in leaving him, and, therefore, necessarily authorizes her to live elsewhere and to acquire a separate domicil. Cheever vs. Wilson, 9 Wall. (U. S.) 108; Barber vs. Barber, 21 How. (U. S.) 582; 2 Bishop, Mar. and Div., 475; Schouler, Hus. and Wife, Sec. 574; 5 Am. and Eng. Eneyc. of Law,, p. 756.

Where such a separate domicil, based on lawful cause, is bona fide established by the wife, her marriage status becomes subject to-the jurisdiction of the courts of that dómicil. Says Mr. Oooley: “ We conceive the true rule to be that the actual, bona fide residence of either husband or wife within a State, will give to that State authority to determine the status of such party, and to pass upon questions affecting his or her continuance in the marriage relation, irrespective of the locality, or of any alleged offence; and that any such court in that State, as the Legislature may have authorized to take cognizance of the subject, may lawfully pass upon such questions and annul the marriage. But if a party goes to a jurisdiction other than that of his domicil, for the purpose of procuring the divorce, and has residence there for that purpose only, such residence is not bona fide, and does not confer upon the courts of that State or country jurisdiction over the marriage relation, and any decree they may assume to make would be void as to the other party.” Cooley Const. Lim., 4th Ed., p. 502. See also authorities above cited, and Pennoyer vs. Neff,94 U. S. 724.

The statute of Maine provides: “A divorce from the bonds of matrimony may be decreed by the Supreme Judicial Court in the. county where either party resides at the commencement of proceedings, when the judge deems it reasonable and proper, conducive to domestic harmony, and consistent with the peace and morality of society, if the parties were married in this State or cohabited here after marriage.”

Art. 142 of the Civil Code of Louisiana provides: “Wherever a marriage shall have been contracted in this State, and the husband,, after such marriage, shall remove, or shall have removed, to a foreign country with his said wife, if said husband shall behave, or have-behaved, toward his wife in said foreign country in such a manner as would entitle her, under our laws, to demand a separation from bed and board, it shall be lawful for her, on returning to the domicil where her marriage was contracted, to institute suit there against her said husband for the purpose above mentioned, in the same manner as if they still domiciliated in said place. In such cases an attorney shall be appointed by the court to represent the absent defendant; the plaintiff shall be entitled to all the remedies and conservative measures granted by law to married women, and the judgment shall have force and effect in the same manner as if the parties had never left the State.”

It thus appears that both States have adopted a similar policy on this subject, and the comity of States authorizes us to give full effect to such decrees as to both parties, under the rule, which we find well formulated, as follows:

“ A divorce granted by the court of the defendant’s domicil, or of the complainant’s domicil, in a case in which the defendant has been summoned, or has voluntarily appeared, is probably valid as to. both parties everywhere by comity. If the defendant, though not, regularly appearing or summoned, has had actual notice, or even if' he has had only constructive notice, by publication or otherwise, the-divorce will be regarded valid as to both parties by comity, in such States as have adopted the policy of such divorces by similar legislation, or otherwise.” 5 Am. and Eng. Encyc. of Law, p. 760;. Doughty vs. Doughty, 28 N. J. Eq. 531; Van Orsdal vs. Yan Orsdal,. 67 Iowa, 39.

In this case the defendant received actual notice, and while such notice, served extra-territorially, could not subject him to the personal jurisdiction of the court, it was at least equivalent to any other-constructive service, and was made in accordance with the statute of.1 Maine, and with the direction of the court based thereon. Rev. Stat. of Maine, 1871, p. 619.

We conclude, therefore, that the only question affecting the validity of the Maine decree of divorce is the question of fact as to whether the complainant had acquired such bona fide residence or ■domicil in Maine as gave the courts of that State jurisdiction over her marriage status.

The better opinion is that the decree is not conclusive upon the jurisdictional facts essential to its maintenance, but that.its invalidity, due to want of .jurisdiction, may be shown in any court. Sewall vs. Sewall, 122 Mass. 156; People vs. Dowell, 25 Mich. 247.

The United States Supreme Court has referred to this question, but declined to decide it. Cheever vs. Wilson, 9 Wall. 108.

We conceive it to be our duty in such a ;case to require very fulj and conclusive proof of' the bona fides of the acquired domicil; and the evidence on the point here presented is not entirely satisfactory. We should hesitate, on such proof, to maintain the validity of a divorce so obtained. But we find it unnecessary now to decide this point, and have discussed it so fully mainly to show the exact status of the divorce decree, as one, presenting upon its tace, no intrinsic nullity, and subject to attack only on proof of extrinsic facts undermining the jurisdiction.

This is important as affecting the question of good faith in the subsequent marriage contracted between the plaintiff and Alex. Smith-

II.

Article 117 of the Civil Code provides:

“The marriage which has been declared null produces, nevertheless, its civil effects as it relates to the parties and their children, if it has been contracted in good faith.”

And Article 118:

“ If only one of the parties acted in good faith, the marriage produces its civil effects only in his or her favor, and in favor of the children born of the marriage.”

The sole condition prescribed by the law to give civil effects to a putative marriage is good faith on the part of one or both the parties. Without assuming to legislate, we can not add to the requirements of the law. 1 Marcadé, p. 522; 1 Baudry LaCantinerie, p. 329.

The good faith referred to, means an honest and reasonable belief that the. marriage was valid and that there existed no legal impediment thereto. Suc. Taylor, 39 An. 823; Barfield’s Case, 30 An. 1397; Navarro’s Case, 24 An. 298; Aleston’s Case, 15 An. 157; Patton vs. Phila, 1 An. 98.

The party alleging good faith can not close her ears to information or her eyes to suspicions circumstances. She must not act blindly or without reasonable precautions. In Taylor’s case we had before us a woman who acted simply on the statement of the man, that he was divorced, although he was not so in fact, and although she knew his living wife, by whom she had been informed there was no divorce, and had been warned by others that there was none. We held that good faith could not be credited under such circumstances. The facts of that case are in such pointed contrast with those of the instant one that they need no comment.

We have already detailed the facts, which show conclusively that plaintiff’s belief in the validity of her marriage was shared by both the former husband and wife, accepted by their friends and by the community generally, and, in point of fact, supported by a decree of divorce valid upon its face, never questioned by any one, and which could only have been annulled on proof of extrinsic facts, destroying the jurisdiction of the court. A stronger ease of good faith could not be presented.

III.

The Code provides, as we have seen, that the putative marriage produces its “ civil effects,” as it relates to the parties in good faith.

The words civil effects ” are used without restriction, and necessarily embrace all civil effects given to marriage by the law; or, in the language of Marcadé, in commenting on the identical article in the French Code, such a marriage, “ although actually null, has the same effects as if it were not null, the ordinary effects of a valid marriage. * * Every marriage, though invalid, if contracted in

good faith, produces the effects of a valid marriage in the interval between the' celebration and the judicial declaration of nullity; when once such declaration intervenes, the marriage produces no further effect; but, be it understood, the effects produced remain forever.” 1 Marcadé, 525.

The marriage of plaintiff was never declared null during the life of Alexander Smith; it existed as a putative marriage at the instant of his death, and the civil effects resulting therefrom were then complete and indestructible.

. That the right to the marital fourth, under the circumstances defined in the law, is one of the civil effects of the marriage, does not, as it seems to us, admit of dispute. If not such an effect, what kind of effect is it? It is true that the article of our Code, allowing the marital fourth, is directly derived from the Spanish law, being taken from Partida VI., Title xiii., Law 7. It is equally true that under the Spanish law only the legitimate wife, under a valid marriage, . could claim it, and not a merely putative wife. But why? The answer is self-evident. Because the Spanish law contains no general provision, giving all civil effects to putative marriages. The only civil effects allowed by that law to the putative marriage are such as are sanctioned by special provisions, and the right to the marital fourth received no such sanction. Partida IV., Title xiii., Law 1.

White’s New Recop. B. 1, T. 7, Sec. 6; Patton vs. Philadelphia, 1 An. 105; and Spanish authorities there cited.

So, the commentators on the French Code, in enumerating the civil effects produced by the putative' marriage, do not include the marital portion, for the very simple reason that the French Code does not recognize or provide for any such portion. Reference to those systems is, therefore, futile.

Differing from both of them, our Code embodies both provisions, viz.: That of the French law giving to putative marriages all the civil effects of a valid marriage; and that of the Spanish law authorizing the claim of the marital portion as one of the civil effects of a marriage.

We may add that, while the Roman law established the marital portion, in the 53d and 117th Novels of Justinian, we are not advised that the civil effects of marriage were, under that system, given to putative marriages, and, therefore, the authorities under that system are equally inapplicable. We are bound to hold that the right to the marital portion is one of the civil effects of marriage, and that it was produced by the marriage of plaintiff, even conceding that it was only putative, although we do not decide against its validity.

IV.

The final question is, whether the plaintiff’s case presents the conditions entitling her to the marital portion! She brought no dowry. Smith died rich. The only question is whether he left plaintiff “ in necessitous circumstances.” It is well settled in our jurisprudence that the terms ‘1 necessitous circumstances” are used relatively to the fortune of her husband and to the condition in which she lived duringthe marriage. As said in one case, “ in estimating her necessities, the law requires that we should take into consideration the condition of her husband and the habits of life which his ample fortune must have engendered in his family. The rule derived from the Roman and Spanish law in such cases is, that the surviving wife is entitled to the marital portion, unless she has the means bene et ■honeste vivere, according to the condition of her husband.” Dunbar vs. Heirs, 5 An. 159.

The evidence satisfies that she has net such means. She has nothing except certain donations made to her by him, consisting of a painting, valued at §800; some furniture, valued at §500; and a house, stated to be worth §8750. In her prayer for judgment, she allows that proper and reasonable deductions shall be made on account of said donations.

We think she is entitled to the judgment prayed for.

It is, therefore, adjudged and decreed that the judgment appealed from be avoided and reversed, and that there be now judgment in favor of plaintiff and against the defendant guardian, declaring plaintiff to be entitled to, and to have and receive out of the succession of Alexander Smith, deceased, and from his said heirs in possession thereof by their said guardian, a child’s share or one-fifth part or share thereof in usufruct, less such deductions on account of certain donations made to plaintiff by said Smith during his lifetime, as may be just and reasonable, and that she be put in possession of the same, defendant to pay costs in both courts.

Rehearing refused.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 10,860.
    Succession of Mrs. Carmelite Carcagno, Widow of Bertrand Saloy.
    1. Art. 1213 C. O. authorizes the attorney of absent heirs, in the interval between the opening of the succession and the appointment of an administrator, to perform conservatory acts, the delay of which may injure the succession; and when advised that certain effects, in the possession of a third person, door may belong to the succession, he is authorized to inform the court, and to invite such action as may secure the noting of such effects upon the inventory.'

      2. The law commands the probate judge to cause an inventory of succession property, and prescribes that such inventory shall embrace a proper description of all effects of the succession.
    8. In the confection of an inventory, neither the judge nor the notary decides questions of title or possession But when particular effects are pointed out, even in the possession of a third person, as claimed to belong to the succession, it is proper to have such effects noted and properly described in the in ventory, though without prejudice to the rights of the third possessor.
    4. Finding that the orders of the judge complained of had no other purpose or effect except to secure a proper inventory, and did not divest either the title or right of possession of appellant, and in absence of any showing of injury or reason why they should be reversed, we decline to interfere with them.
    APPEAL from the Civil District Court, Parish of Orleans. Bightor, J.

      Charles Lougue for Appellant.

      Benjamin C. Elliott, ¿ ttorney for Absent Heirs, Appellee.
   The opinion of the Court was delivered by

Fenner, J.

The succession of Mrs. Bertrand Saloy was opened upon the petition of one who represented herself as a resident heir of deceased, who stated in her petition that certain of the heirs were absent, who prayed for the appointment of an attorney of absent heirs, and for an inventory of the property of the succession, and who also prayed for her own appointment as administratrix.

The judge entered his order directing that the petitioner’s application for appointment as administratrix be advertised according to law — ordering an inventory of all the ■ property and effects left by deceased to be taken by Chas. T. Soniat, notary public — and appointing B. O. Elliott, Esq., as attorney of absent heirs.

After qualifying according to law, the attorney of absent heirs presented to the court the following petition:

“The petition of B. C. Elliott, duly appointed and sworn as attorney to represent the absent heirs of the deceased in this succession, shows: That he is informed and believes that a bank box containing a very large amount of valuables, lately belonging to the deceased, is now in the vault of the Whitney National Bank, deposited in the name of Mrs. Louque, or her husband, Louque or Victor Pedelahore, tinder the claim or allegation that said box and its contents were received as a manual gift from deceased, and that it is necessary for the preservation of the rights of the absent heirs that said 'box and contents should be included or noted in the inventory.

“ Wherefore, he prays that said Whitney National Bankbe ordered •to retain said box in its possession until the same shall be examined, by the notary ordered to take the inventory herein, and its contents ■duly noted, or until further orders of this court, without prejudice to ithe rights of any one claiming said box, and for general relief,” etc. 'On this petition the judge entered the following order:

“ Let the Whitney National Bank be and it is ordered to retain 'possession of the box herein described and its contents until the ¡same shall have been examined and noted by the notary, Charles T. •Soniat, Esq., and until further orders of court.

“New Orleans, April 11, 1891. ■
“ (Signed) N. H. Rightor, Judge.”
Thereupon Mrs. Louque appeared by a rule upon the attorney of absent heirs, in which she set up her claim as owner of the box and contents under a manual gift from deceased, made some days before her death, and called on him to show cause why the above order “should not be quashed and set aside, and why your mover should not be recognized as sole owner of said box and contents.”

To this rule certain heirs of Mrs. Saloy personally intervened, 'Specifically denying the title of Mrs. Louque,,averring that the property belonged to the succession, and praying for an order directing •that the box and its contents be turned over to the succession to be ■distributed among the heirs according to law.

These intervenors also filed another petition for an order directing the Whitney National Bank to produce the bank box in open court on a day fixed; to which the bank filed answer that the box was deposited in a steel compartment of its deposit vault, of which Mr. and Mrs. Louque held the key, and which could not be opened without the production of that key.

Thereupon it appears that the judge, of his own motion, entered the following ordei or direction to the notary as supplementary to his original order:

“Mem: Mr. Chas. T. Soniat, the notary designated to take the inventory of this succession, will communicate the within order to the Whitney National Bank; and if the officers of said bank should seem unable to give access to the box and contents in question, by reason of the key of said box not being in their possession, or under their control, then the notary having informed himself as to the person who may have possession or control of said box, whether it be Mrs. Geo. A. Louque, nee Carmelite Pons, or other .person, and shall demand and receive said key, and having completed the inventory of said box and contents, according to law, shall, without unnecessary delay, report his action to this court.
“ (Signed) N. H. Rightor, Judge.”

The prooes verbal of the notary shows that, under this direction, he demanded the key of Mrs. Geo. A. Louque, who admitted its. possession, but declined to deliver it.

On the same day, Mrs. Louque discontinued the rule which she-had taken; and, on the following day, she applied for and obtained a suspensive appeal from both the orders above referred to.

We have thus fully stated the proceedings, because they are violently assailed, in this court, as operating an unwarranted and usurpatory divestiture of plaintiff’s title and possession, without due process of law.

Her counsel has referred us to the following authorities, which we have carefully examined, and which substantially hold that the adverse possession and title of third persons of property claimed also by a succession, cannot be divested under summary proceedings (and still less by ex parte orders) in the mortuary proceedings, but that the succession, like any other person, must assert its rights in the appropriate ordinary action. Lavigne vs. Ohalambert, 11 La. 18; Sue. McKinney, 5 An. 748; Sue. Mielke, 8 An. 11; Sue. Moore, 18 An. 512.

The correctness of these decisions is too obvious to admit of dispute, and we are quite sure the learned district judge would never have violated the principles therein announced.

The orders complained of did not purport either to determine, the-title or to transfer the possession of the property.

Their sole and evident object was to subject the property, in the-possession in which it stood, to the view of the notary charged with taking the inventory, in order that he might inspect the same, ascertain its nature and value, and make a note thereof on the inventory, as property in the adverse possession of a third person, to which the succession had or might have a claim.

This clearly appears from the terms of the original petition and order, and the supplemental order must be construed in accordance therewith. The order only directed the bank to retain possession of the box and contents “ until the same shall have been examined and noted by the notary.” The concluding words, “ and until further orders of the court,” could only have been intended to hold the order in force until the court, having first satisfied itself that the purpose of the order had been accomplished, should revoke it.

If Mrs. Louque had complied with the order by exhibiting the contents of the box to the notary, to be noted on the inventory, we can not doubt that the order would have been cancelled, and her possession relieved from all restraint. If, indeed, after such action, she had demanded the discontinuance of the order, and it had been refused, she would have had grave cause of complaint, which would have justified redress at the hands of the court.

But she chose to pursue a different course. Without applying for any explanation or modification of the order, she simply declined to permit access to the box, and filed a rule in the case, in which she, herself, put her title at issue and asked for a judgment recognizing her as owner. It was only after the other alleged heirs had intervened, accepting this issue, denying her' title and asserting title in the succession, that she hastily discontinued her rule, and took the present appeal.

The action of the attorney of absent heirs, in calling the court’s attention to the situation of this property and in inviting some action in order to ascertain its nature and value, in order that it might be noted on the inventory, as a basis for the assertion of any claim the succession might prove to have thereto, was certainly proper and ..within the line of his duties, as prescribed by Art. 1213 C. C.

Nor do we think that, in these orders, as we construe them, the judge exceeded the broad powers conferred upon him in the exercise of his probate jurisdiction.

The law makes it his duty to have an inventory taken. O. O. 1035, 1036, 1039, 316.

The same articles prescribe that the inventory shall include all the effects of the succession, or, in the language of Mr. Cross, “ an exact . -and particular description of all the effects, movable and immovable, of the succession.” Cross on Succession, p. 9.

In the confection of an inventory, neither the judge nor the notary -determines questions of title or possession. But when particular effects are pointed out, even in the possession of a third person, which are claimed to belong to the succession, it is proper to note ■such claim upon the inventory, and to give a proper description of the effects so claimed, without prejudice, of course, to the rights of -the third possessor, otherwise it might turn out that all the effects -of the succession were not included in the inventory, and the mandate of the law would be violated.

The only way„of giving a description of these effects, or of arriving at any estimate of their value, was by opening the box and ex■amining them.

The order of' the judge was, therefore, natural and proper, and, presumably, not injurious to the rights of any one.

We are not to be construed as authorizing anything like aright of •search, as to which, under the facts of this case, we express no opinion. Non constat, that the judge would have enforced the opening of the box against the will of the possessor.

Under the terms of the order, its only effect was to hold the box where it was until its contents were ascertained, and when the possessor prevented its opening, the box simply remained in the custody of the bank, until further order of the court. The effect, in that case, would have been simply that of a judicial sequestration, which we think, in such a case, would have been authorized under Article 273 of the Code of Practice, at least until the succession could be represented by the appointment of an administrator, who could invoke the proper conservatory process to protect the interest of the succession.

Appellant has suggested no injury suffered by her from these ■orders, and no reason why they should now be interfered with. On the contrary, her counsel admitted in argument that she had voluntarily exposed the contents of the box, and that the title thereto was now regularly at issue in pending litigation.

Judgment affirmed.


author: Watkíns, J.

text:
    No. 10,850.
    Mrs. Mary A. Kelly vs. Joseph D. Taylor.
    1. A wall of brick, which is used in common as the wall of two adjacent properties-in a city or town, is a party-wall, if erected partly on the soil of each, and has - been so used for many years, without question or complaint by either.
    2. When each of said parties, by actual measurement, appears to possess a little-beyond the boundaries fixed in his title, neither is at liberty to question the encroachment of the other, in order to disturb the status quo between them.
    3. In such case the acts, conduct and apparent acquiescence of the parties re spectively, serve to interpret questions of doubt between them, and* courts of justice will not readily interfere therewith.
    PPEAL from the Civil District Court for the Parish.of Orleans. Monroe, J.

      Henry P. Dart for Plaintiff and Appellee.

      J, Q. A. Fellows and J. B. Rosser, Jr., for Defendant and Appellant r
    1. Band sold in parcels by the owner of the whole, by fixed measurements, the first purchasers take only what their titles call for, and the last purchaser ták es-tile remainder of the tract, more or less. Savage vs. Foy, 7. An. 573; Lacour vs-Watson, 12 An. 214; C. C. 841, 843, 844, 845, 846, 847, 854.
    2. There is no prescription to the action of boundary. Arcenaux vs. Benoit, 21 An. 973; C. 0.825.
    3. Where it is found, on survey, that the wall of a house has- encroached on the adjoining lot more than half its thickness, and the party desiring to make ifa. wall in common consents to make the centre of the wall the division line, the presumption, in the absence of proof, after thirty years has elapsed,, is, that the-portion thus surrendered was in consideration of half the cost of the wall, and is added to the lot of the one who constructed the wall. O. C. 2285 (2), 2288; 12’ B. 471. \

    4. A wall, only thirteen inches thipk, of a brick building constructed forty or fifty years ago, wholly or within one-fourth of an inch on the lot of the bu-ilder, and no brick or other substantial building has ever been built alongside of it, by which the wall is used as a part of a new building, the presumption is that it was not a wall in common; that such wall is the property of the builder, and he has the right to make openings therein and keep them open, until the owner of the adjoining lot shall make it a wall in common by paying half its cost and the value of the ground on which it stands, and for such as may be outside the wall of the lot of the original builder. Murrell Fowler, 3 An. 165; Durel vs. Boisblane 1 An. 408, 197; Jeannin vs. DeBlane, 11 An. 465; Costa vs. Whitehead, 20 An. 342; CC. 676, 696.
    5. In absence of later titles, the description of the last title in evidence, of the plaintiff’s chain of titles, will bind him, and he can take no more tbam that title calls for.
   The opinion of the court was delivered by

Watkíns, J.

The litigants are proprietors of adjoining premises

situated on Oarondelet street, in the' City of New Orleans, which are indicated as numbers one (1) and two (2), on the sketch of the locus in quo, which we have extracted from the brief of defendant’s counsel, as a means of enabling us to give a clearer and more exact expression of our views.

On the sketch, plaintiff’s property is indicated by the figures 47 as having a front measurement on Oarondelet street of forty-seven feet; and that of the adjoining premises is indicated by the figures 25, as having a front of twenty-five feet on said street:

Lafayette Street. 160 o CO o CO ó CO 160 60 to Ol 80 CO 00 Girod Street-.

Bnqueterie or Oarondelet Street.

The sketch shows the front of the square between Girod and Lafayette streets.

The houses of each of the proprietors are built of brick, are of two and one-half stories in height, with a single wall separating their properties. Recently the defendant opened windows or openings in this intervening wall, and this suit is to compel him to close them.

The salient and leading averment of the plaintiff’s petition is that the wall in question is a party wall, or a wall in common, and has been so established, recognized and used by the occupants of said two adjoining premises for more than thirty years, and thát “no one has ever claimed or exercised the right to make openings in the same.”

She charges that* said openings overlook the bedrooms in her house, and destroy its renting value.

Defendant, in answer, claims ownership of the adjoining lot to plaintiff’s and the buildings thereon, and the exclusive ownership of the said intervening wall; and he also claims four (4) inches of the soil beyond said wall, and avers that said wall was constructed and now stands on his lot and property, and hence it is not a party wall, and plaintiff is without right of action, or ground of complaint.

On the trial there was judgment in favor of the plaintiff, and the defendant has appealed.

The case was tried in the court below, upon expert testimony; and the experts consisted of three skilled and competent surveyors, Pilie, Grandjean and'Brosnau, who seem, from their testimony, profiles, maps, etc., to have gone into the question thoroughly.

The testimony leaves no doubt of the fact that the defendant’s building was erected on the lot (the municipal number of which is No. 157 Carondelet street) something like thirty years ago — perhaps longer.

Plaintiff traces title through Benjamin Kendig, who purchased from Charles Gardiner and heirs of A. Babcock, on the 4th of June, 1835, and by the following description, viz.:

“All that lot of ground situated in the suburb St. Mary, * * * measuring forty-seven (47) feet front on Carondelet street, by eighty-two (82) feet in depth (opening about three feet in said depth), and giving about fifty feet, French measure, in the rear line; bounded on the side next to Hevia street by the property now, or formerly, belonging to Widow Brogard; and on the side next to Girod street by that now, or formerly, belonging to Edward Colesward; this lot of ground is sold by the boundaries, be the advertisement more or less than is above specified,” etc.

This is the same description by which Babcock and Gardner purchased on the 18th of March, 1833, from the estate of Robert Lewis; and the same description is given in the deed of Louis Robert, to. Robert Lewis, on the 22d of September, 1831.

In 1818 this lot was conveyed by Jean Laurent to J. P. L’Aubry,. as having a front of forty-seven (47) feet, French measure, or fifty (50) feet one (1) inch, American measure; and Jean Laurent seems. to have derived title from his father Jean Louis Laurent subsequent to 1804 — date not specified.

It appears from the profile and exhibits executed by Pilie and Grandjean jointly, that since 1833 the titles of plaintiff and of her-authors call for a front measurement on Carondelet of fifty (50). feet and one (1) inch, American measure — just the same as that called for n/the deeds of the Laurents in 1810-1818.

It also appears, from the ' same evidence, that in 1814, when the-property of the defendant was owned by Genevieve Metoyer, her-deed called for twenty-five (25) feet, French measure, or twenty-six (26) feet seven (7) inches and Ar> American measure.

The measurement is just the same in the deed of Euphrosine Durvieux in 1817.

And, in the deeds of the defendant, and his intermediate authors, the same American measurement is pursued, viz.: “ 26' 7" 6'" fixed.”'

Thus it appears, irresistibly, to our minds, that the ancient boundaries of these two properties have been well and faithfully preserved.

While it is true that the said exhibits do show that the plaintiff possesses some seven (7) inches over and above the calls of her title, i. e., 50feet Sinches,” instead of “ 50 feet 1 inch,” “more or less,”' yet they do not show that same was absorbed from the property of the defendant. For said exhibits show that, while defendant’s titles, call for twenty-six (26) feet seven (7) inches and A, he has in possession twenty-six (26) feet ten (10) inches and A" — an excess above the calls of his title, of two (2) inches and seven-tenths (A) of an inch.

They also show that Fannie Chotard, on corner of Girod and Carondelet, occupies two (2) inches and three-tenths (A) less than her titles call for; and that the M. E. Church (which adjoins the plaintiff on the Canal street side) is in possession of one (1) foot and three inchesand A'ths less than the calls of its title. But, as there is an alleyway intervening between the plaintiff and the church edifice, that may be easily adjusted. The defence set up is not good.

In addition to the foregoing argument, we incline to the belief that the title of the plaintiff’s authors was one per aversionem, being a designated space within fixed boundaries that have never been, changed.

In relation to the actual situs of the wall in controversy, the evidence satisfies us that it only impinges on the plaintiff’s premises to-the extent of about -ftths of an inch — i. e., the superstructure; but-having about two feet of basement or foundation thereon.

There was a good deal of proof adduced to show that the wall in> controversy, and which was anciently an outer wall, gave evidences, of its having been used as a party wall; but, as our opinion, is.that-the facts stated constitute it in law a party wall, it is needless,to discuss this question. R. C. C. 677, 685.

The acts, conduct and apparent acquiescence of the parties andl their authors are in keeping with the view we entertain of the testimony. It seems to have impressed the judge of the court below as: it has impressed us. There is no reason apparent why we should! alter his finding.

Judgment affirmed.

Rehearing refused.


author: McEnery, J.

text:
    No. 10,717.
    P. R. Angelovich vs. His Creditors..
    A mandate to represent creditors at a meeting of creditors in an insolvent proceeding. which authorizes the agent or proxy to vote for an extension of time;, or that he vote for a settlement of the indebtedness in such manner as two-thirds in number and amount of the creditors may, determine, or to vote for the sale of the assets surrendered for cash or on terms of credit, or “for such, other matters as may come before the meeting of creditors as may bendflt him, the insolvent, or the creditors, and as may be proper and necessary,” will not authorize the vote for the dis, narge of the insolvent.
    In order to discharge the insolvent there- must be, in accordance with Article 2177 of the Civil Code, a vote of a majority of all the creditors, who are also creditors-for more than half of the whole sum due by the insolvent.
    PPEAL from the Civil District Court for the Parish of Orleans.. Monroe, J.

      Aug. Bernau for Appellant.

      James B. Guthrie and E. H. McOaleb-foil Appellees..
   The opinion of the court was delivered by

McEnery, J.

The plaintiff, on January 11, 1890, filed his petition in the Civil District Court for the Parish of Orleans for a surrender of his property for the benefit of his creditors.

The cession of his property was accepted and a syndic appointed.

At a meeting of the creditors the insolvent was discharged from all his debts.

At this meeting the insolvent, under a power of attorney, voted for the discharge.

The bilan shows 102 creditors, and the schedule shows debts aggregating $28,117. At the meeting of the creditors there were fifty-four votes, the insolvent voting by proxy for forty-six creditors, representing an indebtedness of $4617.58. The fifty-four creditors voting represented $12,169.12, less than one-half of the amount of the debts shown by the schedule. Dean & Co. and A. M. & J. Solari opposed the homologation of the meeting of creditors.

The ground of this opposition is that the votes cast by the insolvent, discharging himself from debt, were illegal, as the power of attorney under which he acted gave no such authority.

The power of attorney is as follows:

P. R. Angelovich versus His Creditors.
Civil District Court, No. 29,004 — Division “C.”
“ We, the undersigned creditors of Peter R. Angelovich, insolvent, do hereby authorize the said Peter R. Angelovich, to himself, or by substitution, represent us at the meeting of his creditors, to be held before Ferdinand Kirchner, notary public, on February 15, 1890, or at any subsequent meetings, to, in our name and behalf, vote that nine, eighteen and twenty-four months be given him within which to pay his debts in full in equal instalments, or if all the creditors do not agree thereto, that he vote for a settlement of his indebtedness to his creditors in such manner as two-thirds in number and amount of his creditors may determine, or to vote for the election of a syndic for the sale of the assets surrendered for cash or on terms of credit, for such other matters as may come up before said meeting of the creditors as may benefit him or the creditors, and as may be proper and necessary.”

It is very plain that the above instrument only authorized the insolvent to vote for a certain time in which his debts should be paid in full, and for a general settlement of his debts with his creditors for his and their benefit. There is nothing said about the discharge of the debtor, and from the context of the power of attorney, it is evident that this was excluded and was never contemplated by the creditors who executed it.

Conceding that these votes were legally cast, there is still wanting a majority of creditors in number, and who are also creditors for more than the half of the whole sum due by the insolvent. Civil ‘Code, Article 2177.

The insolvent urges that Article 2177 Civil Code should have the same interpretation placed upon it as has been given to Article 3086, in 33 An. 1155, and 36 An. 760. This last article was amended by Act No. 83 of 1843, now Section 1822 Revised Statutes. Article 2177 was not in any way affected by said act.

The two articles of the Code, 3086 and 2177, relate to subjects distinct from each other — the one, 3086, has reference to the respite to be granted to debtors, and not to the absolute discharge of the debtor, and the other article, 2177, to his absolute discharge from the debts appearing on his schedule. It is very plain that the creditors cannot have their debts cancelled, except on a strict compliance with the law, and with their consent made manifest by their participation in the proceedings, and expressed by a majority of the creditors in amount, who are also creditors for more than half of the whole sum due by the insolvent.

There is no question raised as to the appointment of a syndic. The judge a quo maintained the opposition so far as to order another meeting of creditors, to which the dischage of the insolvent should be referred.

Under the circumstances of the case, we do not think he erred in thus giving an opportunity for further proceedings in relation to the discharge of the insolvent.

Judgment affirmed.


author: Watkins, J.

text:
    No. 10,935.
    The State ex rel. D. C. Scarborough, District Attorney of Eleventh Judicial District vs. The Judges of Circuit Court of Appeals, etc.
    Act 118 of 1890, which requires all railroad companies throughout the State of Louisiana to put up bulletin boards in a conspicuous place, at all regular or way stations where they have a telegraph operator, and to keep posted thereon, for the information of the traveling public, or people generally, the time of the arrival and departure of all regular trains, on pain of afine of not less than one hundred, and not more than five hundred dollars, for each violation of its provisions, “without just cause,” “to berecovered in any court of competent jurisdiction within the parish where said violation may take place,” is not a criminal statute in the sense of the jurisdictional articles of the Constitution relative to the Appellate Courts of the State; and the procedure indicated for the recovery of the fine thereunder to be imposed is civil and not criminal in character.
    Of such a proceeding the Circuit Courts of Appeal have appellate jurisdiction, and prohibition will not lie to restrain the judges thereof from hearing and adjudging such a cause.
    y^PPLICATION for Prohibition.
    Relator in person.

      Howe & Prentiss for Respondents.
   The opinion of the court was delivered by

Watkins, J.

Relator seeks to restrain further action on the part of respondents in the suit depending in their court, entitled State ex rel. D. C. Scarborough, District Attorney of the Eleventh Judicial District, vs. Texas & Pacific Railroad Company, on the ground that said suit is a criminal and not a civil proceeding, over which class of cases the organic law has given the circuit courts of appeal no jurisdiction; and, therefore, they can exercise none in that case; and any attempt on their part to exercise jurisdiction in the premises, would be, in effect, an usurpation of power on their part.

In respondent’s brief we note a suggestion to the effect that relator had proceeded somewhat irregularly in the court below, by appearing in their court to try the said cause on appeal therein, and only urging complaint after it had been unfavorably decided, and first presenting objection to the jurisdiction thereof on the rule taken for a rehearing.

As, in our opinion, that makes no essential difference — consent not conferring jurisdiction rations materise — we will go to the main question at once. State ex rel. City vs. Judge, 41 An. 540.

Referring to the Constitution, we find that courts .of appeal are declared to ‘ ‘ have appellate jurisdiction only, which jurisdiction shall extend to all cases, civil or probate, when the matter in dispute * * * shall exceed two hundred dollars,” etc. Art. 95.

We find further that “the Supreme Court * * * shall have appellate jurisdiction only, which jurisdiction shall extend to * * * ¡ criminal eases on questions of law alone, whenever * * * a fine exceeding three hundred dollars ($300) is actually imposed.” Art. 81.

If, as claimed by relator, the suit, or proceeding referred to, be 11 a criminal case,” in the sense of the constitutional article last referred to, respondents are without jurisdiction, and the alternative writ must be made peremptory; not otherwise.

From the record, it appears that relator inaugurated the proceeding in question, against the railroad company, under and in pursuance of the provisions of Act 118 of 1890, for the purpose of recovering therefrom the pecuniary penalty denounced in the act against “any railroad company violating the* provisions thereof.” Sec. 2, Act 118 of 1890, p. 160.

Section one of that act declares, “that all railroad companies, throughout the State of Louisiana, are hereby required to put up bulletin boards in a conspicuous place, at all regular and way stations, whereThey have a telegraph operator, * * and to keep them up continuously, and keep posted thereon, for the information of the traveling public, * * the time of the arrival and departure of all regular trains,” etc.

Section two declares, “that any railroad company violating the provisions of this act, without just cause, shall, for each offence, pay a fine of not less than.one hundred ($100) dollars, nor more than five hundred dollars, to be recovered in any court of competent jurisdiction within the parish where said violation may take place.”

On the face of the statute, we are of opinion that the law-giver did not contemplate the collection, or recovery, of the fine thereby imposed by means of a criminal proceeding.

It provides that any railroad company violating the provisions, “ without just cause,” shall pay a fine. That phrase is not of the essence of a criminal statute, as it appears to involve judgment and discretion, on the part of the railroad company, in determining the justness of the “ cause” of its neglect in the premises.

It further provides that, in case of non-payment by the railroad company, such fine maybe “recovered” from said company; and that 'must mean by execution against the company’s property. It further provides that such fine may “ be recovered in any court of competent jurisdiction within the parish where said violation may take place;” and that provision leads irresistibly to the conclusion that there is more than one court in each parish of the State competent to test the justness of the company’s cause of dereliction, and to assess the fine, in case the cause assigned is not found just; and which fine shall be “not less than one hundred ($100) dollars, and not more than five hundred ($500) dollars.”

In country parishes, like Natchitoches is, the only courts possessing the necessary civil jurisdiction to award such recovery, are the District Courts (Const., Art. 109) and justices of the peace (Art. 125).

And the only courts possessing the necessary criminal jurisdiction to assess such fines, are the District Courts, as they “have unlimited original jnvis&iehion in all criminal * * * matters” (Const.,

Art. 109), justices of the peace therein being given only “ criminal jurisdiction as committing magistrates.” Art. 126.

It is manifest that, as a committing magistrate in a criminal proceeding, a justice of the peace could not assess a fine of $100; and it is equally clear that, as exercising civil functions, he could both hear and determine the “ cause ” assigned, and fix the amount and assess the fine. He could, also, award process for its recovery.

To construe the act in question as a criminal statute, would be to negative its provisions; or to effectually read out of it the phrase-, “ any court of competent jurisdiction within the parish,” etc.

But, if it be accepted and treated as a criminal statute, it would seem to follow, logically and necessarily, that the District Attorney should have initiated proceedings by way of information or indictment; for the Constitution declares that “ prosecutions shall be by indictment or information ” (Art. 5) ; and “in all criminal prosecutions, the accused shall enjoy the right to a speedy trial by an impartial jury ” (Art. 7).

And just here another formidable obstacle presents itself, and that is, the serious difficulty there appears to be in proceeding criminally, by indictment or information, against a corporation. The statute under consideration deals with “railroad companies.” The duties that are specified in the act are imposed on the companies, and not upon their officers or employés. It declares that any railroad company violating the provisions of this act * * - * shall pay a fine,” etc.

Our Code, in treating of corporations, declares that “a corporation can not commit the crime of treason, or any other offence, in its corporate capacity, although its members may be guilty of those crimes in their individual and respective capacities.” R. 0; C. 443.

Our Constitution, in treating of criminal prosecutions, appears to contemplate only natural persons. Articles 5, 6, 7, 8, 9, 10 and 11.

In the case referred to, relator commenced proceedings against the railroad company, by petition and citation, in the ordinary form. His petition concludes with a prayer for citation and judgment against the Texas & Pacific Railroad Company, in the sum of $1950, with 5 per cent, interest thereon, from judicial demand, and costs.

The judgment therein pronounced decrees, inter alios, the State of Louisiana to have and recover from the Texas & Pacific Railroad Company the sum of $600, and 5 per cent, per annum interest thereon from the date of decree^ and costs of suit.”

From this judgment the defendant company prosecuted an appeal to the respondent’s court, and, by it, said judgment was amended and affirmed.

Said suit and judgment, like the statute authorizing same, possess all the incidents and elements of an ordinary civil action and decree against a railroad corporation, for the assessment and recovery of the fine contemplated therein for its violation. The statute seems rather to comprehend quasi offences, the gravamen of which'is fault or negligence, for the consequences of which railroad corporations may be compelled to respond civilly, than to offences for the commission of which natural persons may be criminally punished by fine. Vide, Code of Practice, 31, 32; R. C. C. 2316; Insurance Company vs. Werlein, 42 An. 1047; Knoop, Hanneman & Co. vs. Blaffer, 39 An. 23.

The following decisions are gei’mane to the question under consideration, and support our conclusion that the statute provides a civil and not a criminal proceeding for the recovery of the fine therein provided for in case of violation. Adams vs. Woods, 2 Cranch, 386; State vs. Williams, 7 R. 266; State vs. Linton, 3 R. 55; State vs. Thomas, 12 R. 48; State vs. Thompson, 10 An. 122; State vs. Hallen, 12 An. 677.

It is, therefore, ordered and decreed that relator’s application be .denied, at his cost.


text:
    No. 10,877.
    The State of Louisiana vs. Philip Baker.
    The only error assigned on this record relates to the ruling of the judge in permitting the State, on cross-examination of the accused as a witness, to ask a question objected to on the ground that the matter thereof was not referred to in the direct examination. The statement of the judge negatives the ground of objection by showing that the matter of the question was directly and closely -connected with matters testified about on the examination in chief. The rule restraining the State on cross-examination never went further than to exclude questions on matters not connected with those referred to on the direct examination.
    APPEAL from the Criminal District Court for the Parish of Orleans. Baker, J.

      W. H. Rogers, Attorney General, C. H. Luzenberg, District Attorney, and James C. Walker, for the State, Appellee.

      Lionel Adams for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The only complaint brought to our notice by this record arises under a bill of exceptions taken to the ruling of the court in permitting a question propounded to the accused on his cross-examination by the State, which was objected to on the ground that the question related to matter about which he had not been asked and had not testified in his direct examination.

The statement of the judge, appended to the bill, clearly shows that the question related to a subject closely connected with the matters testified about in the direct examination, and this is suffl■cient. State vs. Paynier, 36 An. 573; State vs Stuart, 35 An. 1015.

The rule never went further than to restrain the State from cross-examining defendant’s witnesses on matters not connected with matters' statéd’óri:thb'examination in 'chief.' "’1 Green]eaf 'Ev.,' p. 521, No. 445; State vs. Swayze, 30 An. 1323;- State' vs. Thomas, 32 An. 349; State vs.'Willingham, 33 An. 538*. ' '

The case hereW entirely without the inhibition. '

Judgment affirmed.


text:
    No. 10,933.
    The State of Louisiana ex rel. Samuel Vignes vs. Judge of Civil District Court.
    A judgment which lias been signed can not be altered, amended or revised by the judge wlio rendered the same, except in the manner provided by law. He can not, on Iris own motion, change a judgment which has been so signed, notwithstanding it was signed in error, and .w.as net'the judgment orally given.
    RPPLICATION for Certiorari and-Prohibition.

      Ker & Duvigneaud for the Relator-.

      J. N. Wolfson for Respondent.
   The opinion of the court was delivered fey

McEnery, J.

The relator applies for a'writ of certiorari and prohibition to arrest the execution of, a writ of fi. fa. issued under a judgment which he alleges was never rendered by the court, in the suit of Legendre vs. Vignes, on the docket of the Civil District Court for the parish of Orleans. *' '

In said case the District Judge, on the final trial thereof, orally gave judgment for the plaintiff. , ,

The minutes showed this fact.

The judgment which was signed by the judge in said case is as follows: ' '

“The court considering the law and the evidence to be in favor of defendant, and for the reasons -Wally., assigned, it is ordered, adjudged and decreed that there be judgment in favor of the defendant and against plaintiff, with costs.”

This judgment is not in áccordance with the minutes, and is not the judgment orally given.

The judge, several days after signing the decree, on his own motion, canceled the same, and signed another judgment or decree, in accordance with the minutes of the court.

Article 546 of the Code of Practice requires the judge to sign all final decrees or judgments. This is absolutely essential to constitute a judgment.

The minutes of the court, even if signed by the judge, are not sufficient to make the entries therein of decrees final and definitive. Hartwell vs. Jumel, 30 An. 421.

Article 547 Code of Practice allows the court to make certain amendments, which aré enumerated, before the judgment is signed. The judge can ex officio order a new trial to revise the judgment.

Article 548 provides that “a judgment when once rendered becomes the property of him in whose favor it has been given; and the judge can not alter same except in the mode provided by law.”

The judge a quo was therefore without power to cancel the judgment, ex proprio motu, first signed by him in favor of defendant, and substitute another thereafter in favor of the plaintiff. Balio vs. Wilson, 12 Martin, 368; Flint vs. Cuny, 6 La. 69; Whipple vs. Hartzberger, 11 An. 476; Insurance Co. vs. Harbor Protection Co., 39 An. 583; 7 Robertson, 447.

It is, therefore, ordered, adjudged and decreed that the relief prayed for by relator be granted, and the rule herein be made absolute.


text:
    No. 10,861.
    Jacob Von Hoven vs. Elizabeth Von Hoven and Husband.
    When the return day for filing' the record has been extended, and the transcript is filed after the expiration of the extension, the appeal will be dismissed, as the appellant is not entitled to three days’ grace which follow the return day, thus extended.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      B. R. Forman for Plaintiff and Appellee.

      Henry P. Dart for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the court was. delivered by

McEnery, J.

This appeal was made returnable on the first Monday of May, 1891.

On the 6th day of May a motion was: made for an extension of itime to file transcript. Fifteen days wefe granted. The transcript was not filed until the 23d May.

The record not having been filed within the time allowed by law, nor within the further time granted by the court, the appeal must be considered as having been abandoned'. The appellant is not entitled to the three days of grace following the return day, which has been extended. Code Practice, Article-590; Bienvenue vs. Factors •and Traders Insurance Co., 28 An. 901; .Sun Mutual Insurance Co. vs. Bynum, 32 An. 28; Lacroix" vs. Bonin, 33 An. 119; Pierce vs. •Cushing, 33 An. 401; Succession of Gast, 42 An. 91.

The appeal is therefore dismissed.


text:
    No. 10,866.
    Ottilie Bertron et al. vs. Wm. R. Stuart and J. R. Powell.
    1. While it is true that in the absence oí any statute authorizing it, the authorities deny any efficacy to an appointment of an executor outside of the territorial jurisdiction within which it was granted;.and that if such executor desires to prosecute a suit in another State, he must first obtain a grant of administration therein, in accordance with its, laws, yet exception must be therein taken to such executor’s want o’f capacity, otherwise the court' will be presumed to have acted on proper evidence of his capacity, and its judgment will not be annulled for want of jurisdiction of the court to render it.
    2. In ease the judgment debtor resides in a State different from that in which the decree was rendered, and it becomes necessary to institute proceedings for its revival, it is competent for the court of the State in which suit for revival is brought, to appoint a curator ad hoc, upon whom service can be made, and contradictorily with whom a judgment can bArendered. Such a suit is not an action in personam, but one quasiin ran, and. the judgment therein pronounced will be binding upon the absentees.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Moise & Titche for Plaintiffs and Appellees:
    1. No defences short of absolute nullity in the original judgment can be pleaded in an action to revive the judgment. Si An. 840; 33 An. 342; 31 An. 326; 30 An, 1330; 29 An. 69; 23 An. 173; 31 An. 325.

      2. Two days after a default has been seasonably entered, the plaintiff may obtain a definitive judgment by proving his demand. The only, requirement is that the judgment must express the ground on which it was rendered. O. P. 310-315.
    8. In deciding upon the validity of a judgment reviving a judgment, the law'of the State in which the judgment was rendered must prevail. Seudder vs. Union National-Bank, 91 U. S. 411; Wharton on the Conflict of Laws, Sec. 401 (lid. 1881).
    4. By answering, when the court has jurisdiction ratione materia?, the objections to the jurisdiction ratione persona’ are waived. 29 An.194.
    The exceptions to the capacity of the executor, curator, etc., should be pleaded in limine litis, and they are considered waived by the general and special defences to the merits. See authorities in the body of the brief.
    5. The question of the identity of the party suing in a representative capacity must.be pleaded specially, in limme litis. Beyris vs. Spor, 22 An. 16.
    6. A general denial admits the representative capacity of plaintiff. Silbernagle vs. Pluker, 21 An. 188.
    7. Plaintiff’s want of authority to institute suit must be specially urged by way of exception, or it'will not prevail. Heirs of Mason vs. Layton, 38 An. 675.
    8. And such exception eqmes too late after default. Parish vs. Chexnayder, 34 An. 850; Legendre vs. Seligman, 85 An. 113.
    9. Any person interested in the revival of a judgment may petitioned* its revival. C. C. 3547 (Revised Statutes, Sec. 2813); Watts vs. Hendry, 23 An. 594; 32 An. 305; Marbury vs. Pace, 80 An. 1331.

      Carroll & Carroll and H. JEC. Bryan, Curator ad hoc, for Defendants and Appellants:
    One of several joint executors of a deceased person has no power;to revive in his name alone, as executor, a judgment obtained by the deceased in'-his lifetime, and such revival is absolutely null.
    The citation required by O. 0., Article 3547, in a suit to renew a judgment, is of the same kind and character as that required by law in an original action, and, except in actions and judgments in rem, that part of O. O. Article 3547 which provides for substituted service on absent defendants, is null and of no effect being contrary to the Constitutions of this State and of the United States.
    A revival of judgment in the name of one of several joint executors can not itself be revived in the name of all the executors. The variance is fatal.
    A judgment of revival obtained contradictorily with a curator ad hoc, appointed to represent a non-resident judgment debtor, after the judgment debtor has been personally cited and served and against whom a default was entered, is a nullity.
    After a default has been'entered a judgment can be rendered only after the default has been regularly confirmed, upon motion made for that purpose.
    An administrator or executor appointed in one State can not, by virtue of such appointment, maintain an action in another State, without first obtaining a grant of administration in the State in which he wishes to sue. Noonan vs. Bradley, 9Wallace, 399.
   The opinion of the court was delivered by

Watkins, J.

The object of this suit is to revive and continue the life of an antecedent judgment, in which Ottilie Bertron, widow of Samuel R. Bertron, deceased, and Wm. Hughes and Clara Purnell, widow, appear as the co-executors of the last will of the deceased, as plaintiffs therein.

The judgment sought to be revived is alleged to be one that was rendered in the late Sixth District Court, of the Parish of Orleans, and styled and entitled Samuel R. Bertron vs. Wm. R. Stuart and J. R. Powell, numbered 2605 on the docket thereof.

It is averred in the petition that said judgment was therein rendered in plaintiff’s favor, and against the two defendants in solido for the capital sum of $7892.07, with 8 per cent, per annum interest thereon from the 7th of March, 1871 — said judgment having been signed on the 22d of November, 1871, and that same, in principal and interest, remains unpaid.

It is further averred, that said suit was transferred to the docket of the Civil District Court for the Parish of Orleans, and was therein given the number 3810, and therein said original judgment was duly and legally revived, by a decree of revival, duly signed, on the 27th of March, 1882.

It is further averred that plaintiffs are desirous of again having said original judgment revived and its life prolonged; and, alleging that the two judgment debtors are citizens, at this time, of the State of Mississippi, they pray for due citation and the appointment of a curator ad hoc to represent said absentee?s, and for a decree of revival against them.

This suit was filed on the 3d of February, 1890, and, on the day , following, the defendant, William R. Stuart, was personally cited and served in the city of New Orleans, and on the 5th of same month, an order was obtained appointing a curator ad hoo to represent both, of the defendants. One citation was served on the curator ad hoe on the 6th of March, 1890, and another omthe 17th of that month.

On the last named date a judgment by default was entered up against the defendant, Wm. R. Stuart.

On the 28th of same month the curator,' ad hoe, representing both defendants, appeared and filed an answer,' in which he plead a general denial, and the prescription of., ten years, against the original judgment.

On the 16th of April, 1890, the court, a quo, rendered a judgment decreeing the revival of the judgment originally rendered on the 17th of November, 1871, and signed on the 22d of November, 1871; and also, the judgment reviving same, rendered on the 14th of March, 1882, and signed on the 27th of March, 1882. This judgment was duly signed on the 22d of April, 1890.

Matters remained in statu quo until 16th of August, 1890, when the plaintiffs sued out a garnishment proceeding against the New. Orleans National Bank, accompanied by a fi. fa., whereunder they realized the sum of $485.12, as the property of William R. Stuart.

On the 20th of April, 1891 — just within one year after the rendition of said final judgment — the curator ad hoc applied for and obtained an order of appeal therefrom, and filed a bond of appeal.

On the next day the defendant, Wm. R. Stuart — who had been personally cited and served, as stated, and against whom a judgment by default had been rendered — appeared, by counsel, and moved to set aside said default and file an answer, and he was permitted to do so.

The averments of the answer, of course, are impertinent to the issues that are presented in this appeal; and so are those of the re-conventional demand which is therein incorporated.

In this court, same counsel for Stuart, joined by the curator ad hoc — who, in the court below, represented both of the defendants, and from the judgment rendered appealed for both of them — filed an assignment of errors, upon which they jointly demanded the reversal of the said judgment of revival; as to Stuart.

The errors assigned are the following, viz.:

1. Because, as to Powell, the plea of prescription should have been maintained.

2. Because, as to Stuart, the said judgment is null and void, same having been rendered contradictorily with a curator ad hoc, notwithstanding he had been, therptofore, personally served, and a tacit issue had been joined with him on a judgment by default.

8. Because the appointment of a curator ad hoc, service on Stuart through such curator ad hoc, a trial had contradictorily with such curator ad hoc subsequently to said personal service on Stuart, render same, and also the judgment of revival thereon based, absolutely null and void.

Thus, as to Powell, the case stands on the plea of ten years prescription, which is urged by the curator ad hoc; and in respect to Stuart, it stands on the assignment of errors enumerated above.

I.

As the plea of prescription turns upon the efficacy of the former judgment of revival, which was rendered and signed on the 27th of March, 1882, it will be necessary to examine it first.

The record shows that the original judgment was signed on the 22d of November, 1871. The suit for its revival was filed on the 2d of July, 1881, and on the same date an order was granted, appointing a curator ad hoc to represent the two defendants, who were alleged to be, at that time, absentees, residing in the State of Mississippi ; and service was regularly made upon the curator ad hoc on the 5th of same month and year. On the 14th of December, 1881, the curator ad hoc appeared and filed an answer, pleading the general issue. All of these proceedings appear regular and legal on their face.

The suit for revival was filed and the service regularly made on the 5th of July, 1881, within the period of ten years after the signing of the original judgment, on 22d of November, 1871, and thereby the prescription of the statute was interrupted, quoad hoc.

The present suit having been filed and service thereof made on the 4th of February, 1890, within ten years after the signing of the former judgment of revival, on the 27th of March, 1882, the life of the original judgment was preserved and prolonged for an additional period of ten years, from the 22d of April,'1890.

On the face of the papers the curator’s plea of prescription was correctly overruled.

We quote, below, Art. 8547 C. C., providing for revival of judgments :

£ ‘All judgments for money, whether rendered within or without the State, shall be prescribed by the lapse of ten years from the rendition of such judgment. Provided, however, that any party interested in any judgment may have the same revived at anytime before it is prescribed, by having a citation issued according to law to the defendant or his representative, etc., and if such defendant be absent and not represented, the -court may appoint a curator ad hoc, to represent him in the proceedings, upon which curator ad hoc the citation shall be served.”

The suits for revival appear -to have been brought in strict conformity with the provisions of that article, and thereby the prescription thereof was interrupted.

II.

In the printed argument several different causes of nullity in the two judgments of revival are assigned, which are not embraced in the answer of the curator ad hoe, nor in the assignment of errors.

They are as follows, viz.: .

1. The absolute nullity of the former judgment of revival, which was signed on the 21st of March, 1882.

(a) The want of capacity of the plaintiff to institute and prosecute that suit, and stand in judgment.

The point made in argument under this head is, that Ottilie Bertron alone instituted and prosecuted that suit to final judgment, in her capacity of testamentary executrix of the last will of her deceased husband, the judgment creditor of the two defendants; that there were two other joint co-executors of that deceased person, and all three of them had been thus appointed under the will of the deceased, which was duly admitted to probate in the proper court of the State of Mississippi, ,wke:l-’© the testator resided at date of his death — hence, being a foreign executrix, she was without right or authority to appear in the courts of the State of Louisiana for any purpose, under the authority of Noonan vs. Bradley, 9 Wallace, 899.

Concerning the force and correctness of the views entertained by the Supreme Court in that case, and which were to the effect that “in the absence of any statute, * * * all the authorities deny any efficacy to the appointment outside the territorial jurisdiction of the State within which it was granted; and * * * if he desires to prosecute suit in another State, he must first obtain a grant of administration therein, in-accordance with its laws,” and yet we can not perceive how this doctrine is to avail the defendants at this time.

In the court which had jurisdiction in that case, ratione materise et personse, no objection to the plaintiff’s capacity was taken then, and objection can not be entertained now. Had such exception been formally tendered to .the court on the hearing of the cause, the plaintiff could, in all likelihood, have exhibited her authority. From all. that appears on the face of the record she was authorized, and there is noching to induce us to doubt the judge’s authority to render judgment on the averments of her petition.

, (6) The fact that the defendants were not, in that case, personally served with citation, the court being without jurisdiction to try the cause and render judgment thereon contradictorily with a curator ad hoc, alone. The point made on the argument is that, for the purposes of such suit and judgment, substituted service was not due process of law, and unavailing so far as defendants were concerned.

The judge, in appointing a curator ad hoc to represent the absentees in that case, acted on the express authority of Article 3547 of the Civil Codo, above quoted, which declares that “if such defendant be absent and not represented, the court may appoint a curator ad hoc to represent him in the proceedings, upon which curator ad hoc the citation shall be served.”

Reliance is placed on Pennoyer vs. Neff, 95 U. S., and Laughlin vs. Ice Company, 35 An. 1184.

In our opinion, this contention is erroneous. In Sproul vs. Hammitt, 31 An. 327, our predecessors ..held that it was exclusively within the power of the court rendering the judgment “ to enforce and to revive it; ” and they further held that “ a proceeding to revive a judgment [is] not a new suit, but simply a proceeding in the same suit to continue and keep alive' a judgment rendered therein, and to furnish proof that it has not been satisfied or extinguished.” To the same effect is their opinion in Succession of Patrick, 30 An 1071, in which a suit to revive is denominated “the peculiar statutory action” provided for the continuation of judgments beyond the term of ten years. Vide Lalane vs. Payne, 42 An. 152.

We had occasion to recently examine the question here presented, and decided it adversely to the contention of the defendant’s counsel. Vide Young vs. Upshur, 42 An. 362. In that case the controversy was in reference to the ownership of an undivided interest or share in a certain judgment rendered by this court, on appeal from the parish of Tensas in this State, the plaintiffs therein being citizens of the District of Columbia, and the case at the time being still pending and undecided in the Supreme Court on writ of error, and the suit in which the claim of an interest was made having been brought in the parish of Tensas, wherein the plaintiffs in the original suit were cited through a curator ad hoc.

To that suit the exception was made that such service as was made on the curator ad hoc. was not due process of law, and failed to confer on the court jurisdiction thereof; but, we held that the jurisdiction of the court was complete, and the judgment binding on the absentees, on the ground that the proceeding was not one in personam, but one quasi in rem, “its object being to obtain judicial) recognition and enforcement of a specific interest in tangible property-in the parish of Tensas, in this State,” etc.

. In several similar cases we have recently maintained the jurisdiction of district, courts, as grounded on like service. Notably, in Duruty vs. Musachia, 42 An. 357; McKenzie vs. Bacon, 38 An. 765; and Robbins vs. Martin, 43 An. 488.

And one remark that was made, in our' opinion, in the last cited case, that “ if indeed a non-resident can not be brought into a court of this State, in such a case, such a cause of complaint as that propounded by the plaintiff, though well grounded in our law, would be-, pz’actieally z-emediless,” is strictly applicable to the exception taken in the case at bar.

The grounds of nullity assigned are not well taken.

2. The nullity of the judgment of revival, from which the present appeal is prosecuted.

(а) Because of the variance between the party plaintiff in the former suit for revival, and the parties plaintiff in the instant suit, and the incapacity of the present plaintiffs to recover judgment.

Certainly, if Ottilie Bertron, executrix, was alone capacitated to-institute suit, and stand in judgment in the former revival suit, the then joint co-executors are likewise capacitated to be joined in the instant one. The .variance that is suggested is of no consequence whatever. It can not fatally affect the judgment. What was said of the want of capacity in a foreign executor to bring suits in the courts of this State, in the preceding part of this paragraph, as appertaining to the foz’mer revival suit, is strictly applicable to the-instant case.

Neither objection is good.

(б) Because the judgment by default, that'was entered up against the defendant, Stuart, was ziever subsequently confirmed.

That there was a judgment regularly rendered and signed, there is. no doubt. That the defendant, Stuart, was personally cited, and that there was also appointed a curator ad hoe to represent him as. an absentee, on whom service was made, can not be denied. It is true that the judgment does not formally state that, by reason of' said default having been made final, it was rendered and signed.

.. But it is impossible for us to conceive the ground of defendant’s, complaint, on that account, or to appreciate his objection of absolute-nullity of the judgment. Eor if the judgment by default was, in effect, made final, he is without cause of complaint. And, if it was not made final, it was evidently abandoned, and judgment was rendered on the issue joined between the plaintiff and the curator ad- hoc on his answer. This, to our thinking, is the true state of the case.

In either event the judgment is, to all appearances, valid-

ill.

It is not correct to say that the instant suit is one to revive the former judgment of revival. A suit to revive, as said in Hammitfc vs. Sproul, is not a new suit, but a new proceeding in the original suit. Its sole object is to- legally and judicially interrupt prescription. Once the revival suit is brought to a termination by a judgment, its object is accomplished, and aten years’ lease of life is given to the original judgment. At the expiration of this lease, a new revival suit must be brought in order to interrupt prescription, and give to the original judgment another ten years’ lease of life.

These two revival proceedings are separate and independent of each other, though having same object in view. Hence it was matter of no consequence that the former suit was brought in the name of one executrix and the latter was brought in the name of three joint co-executors. • The Code says expressly “ that any party interested in any judgment may have the same revived at anytime before it is prescribed.” R. C. C. 8547.

Under the authority of this article this court held in Martinez vs. Succession of Vives, 82 An. 305, that an attorney at law entitled to only a contingent interest in a judgment for the payment of his fee, had sufficient interest in it to authorize him to bring suit for its revival, and to revive the whole judgment, and not merely a restricted and limited interest in it.

Our conclusion is that it was of no consequence to the defendant that one revival suit was brought by one executor and the other by-three co-executors.

After a thorough study of this case and a full examination of all its details, we are satisfied that the original judgment has been legally and properly revived and kept alive; that the defences of prescription and nullity are not well grounded in law, and that the judgment appealed from is correct, and it is therefore affirmed.


author: Breaux, J.

text:
    No. 10,837.
    City of New Orleans vs. A. Lagman & Son.
    1. A mechanic who constructs and shapes materials with his own hands is engaged in a mechanical pursuit.
    2. He will he exempt, although he employs other mechanics who yrork with him, and, like him, follow a mechanical pursuit.
    A PPBAL from the Second City Court of New Orleans. Lavillebeuvre, J.

      W. B. Sommerville, Assistant City Attorney, and Oarleton Hunt, City Attorney, for Plaintiff and Appellant.

      B. R. Forman for Defendants and Appellee.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sued defendants to enforce the payment of a license tax for the years 1888, 1889 and 1890, and claims that they are liable as master builders.

The licenses are claimed under Section 12 of Ordinance 2661, C. S.

Defendants in their answer denied the allegations of plaintiff, and alleged that they are carpenters, and were engaged during the years 1888, 1889 and 1890 in a mechanical pursuit, building and repairing houses.

They also alleged that they are exempt from a license tax under Article 206 of the Constitution.

From a judgment in favor of defendants, plaintiff appeals.

The record discloses that the defendants are carpenters. They build houses and other structures. Their labor was manual, and in its performance they used the spirit level, the square, the saw, hammer and other carpenters’ tools. They manipulated and gave shape -to the material in building.

The witness, Lagman, testifies “he contracted for buildings in 1888 and 1889; it was pretty near all day’s work.” “ I followed the carpenter’s trade all along.” “I performed manual labor on the buildings myself, from the first piece of timber, in framing, in finishing, to the very completion of the house.”

The testimony is not disputed. The plaintiff states in the brief:

“These defendants, unless it may be A. Lagman & Co., are not engaged in a mechanical pursuit.”

They employed the carpenters who worked with them and under their direction in constructing houses.

The phrase, “those engaged in mechanical pursuit,” as incorporated in Article 206 of the Constitution, has -been interpreted in several decisions.

In City of New Orleans vs. Timothy Bayley, 85 An. 545, the defendant worked at his trade with his own hands.' In the performance of a contract he employed other plasterers to assist him.

The court decided that the superior law prohibited the imposition of a license tax on a plasterer, and that the employment of assistance did not exclude him from,the exemption.

This interpretation was affirmed in Theabold, Tax Collector, vs. Connor, 42 An. 787, from which we copy:

“ Undoubtedly that opinion is correct, for Bayley was a plasterer, and worked at his trade with his own hands.”

The attempt to hold the defendants responsible for the payment of a license as master builders must fail.

The undisputed evidence before us establishes that they were engaged as carpenters, and as the house was constructed “ continued to use the tools and appliances of that mechanical pursuit.”

The fact that others assisted can not exclude them from the exemption.

As in the Bailey case, they worked at their trade with their own hands, and were therefore engaged in mechanical pursuit.

A mechanic is any skilled worker with tools, a workman who shapes and applies materials in the construction of houses.

As interpreted by our court, one actually engaged with his own hands in constructive work.

The defendant having testified in answer to a question propounded, that he did perform manual labor in building, from the first piece of timber to the last. This evidence being undisputed, we conclude:, that he is exempt.

The cases of the other defendants being different, in -so far as relates to occupation followed by them, will be hereafter decided.

The judgment appealed from is affirmed in so far as A. Lawman & Son are concerned, at plaintiff’s costs.