author: Blanchard, J.

text:
    No. 12,789.
    Morgan’s Louisiana & Texas Railroad & Steamship Company vs. Paul Pecot, Sheriff, et als.
    1. Suits relating to taxes or licenses are preference suits, triable without a jury . and at Chambers if court be not in session. Sec. 56 of Act 106 of 1890.
    2. Where there is doubt, an appeal will not be dismissed. It a bond be not sufficient for the suspensive appeal taken, it yet remains good for the devolutive appeal.
    8. A distinction is to be drawn between suits to correct an assessment, and suits which go to the inherent validity of an assessment and to the legality of the tax based thereon.
    4. Those of the first class must be instituted within the time fixed by the statute; those of the latter class are not subject to such time limit.

      APPEAL from the Twenty-fourth Judicial District Court, the Parish of St. Mary. Allen, J.

      D. Caffery & Son and Denigre, Blair & Denigre for Plaintiff, Appellant.

      M. J. Cunningham, Attorney General, and Sigur, Milling & Saunders for Defendants, Appellees.
    Argued and submitted May 3, 1898.
    Opinion handed down June 22, 1898.
    Rehearing refused June 30, 1898.
   On Motion to Dismiss Appeal.

The opinion of the court was delivered by

Blanchard, J.

Plaintiff corporation owns and operates a railway extending through the parish of St. Mary, Louisiana.

Trouble arose over the assessment of its property in said parish for taxation for the year 1897, and this suit is the sequel.

The parties litigant are as wide apart as to the nature and character of the action as they are in respect of the judgment that should be rendered.

The plaintiff insists that the complaint is not of an over-assessment, but of a void assessment; that it is not a suit to reduce an assessment, nor to correct an assessment for misdescription or other-irregularity, but one to have the assessment of certain property declared void for radical defects, and to enjoin the collection of taxes predicated on the illegal and void assessment on the ground that, being based on an illegal assessment, the taxes themselves are illegal.

Defendants, on the other hand, insist that the action is one instituted against them (to-wit: the tax collector, the assessor and the police jury of the parish of St. Mary) for the purpose of correcting or reducing the assessment made of plaintiff’s property for the year 1897.

Pursuant to the provisions of Act No. 92 of 1888, the Board of Commissioners for tne equalization of assessments of railroad, telegraph and telephone lines convened at the town of Lafayette in May, 1897, and proceeded to puta uniform valuation on the roadbed of railroads and on the telegraph and telephone lines running through the parishes the board was authorized to represent.

Having done this, the secretary of the board proceeded to apprise the assessors of the several parishes through which these lines of communication ran, of the action of the board. The letter addressed by him to the assessor of the parish of St. Mary informed the latter that the assessment fixed upon plaintiff’s line of railway was $6500 per mile, with a rate of $3500 per mile upon the branch lines thereof.

Having received this communication the assessor proceeded to place the assessment upon his roll. In doing this he first ascertained the number of miles of the main line of plaintiff’s railway in the parish, and the number of miles of its branch lines. The result of •of his labors as to the assessment of the railway mileage proper appears listed as follows, which we will call List No. 1:

5 miles main line east of Morgan City.........................................................$32,000
34 miles main line west of Morgan City...................................................... 221,000
12 miles of mainline double track................................................................. 78,000
1,784 feet spur track, Barnett’s plantation.......................................................... 1,180
3,036 feet spur track, Sorrell plantation.............................................................. 2,010
3,341 feet spur track, Adeline plantation......................................................... 2,210
1,812 feet spur track, Franklin Refinery.............................................................. 1,200
1.615 feet spur track, Alice 0. plantation................................................................. 1,070
10,918 feet spur track, Barnett’s plantation..................................................... 7,230
1,923 feet spur track, Clark’s plantation............................................................... 1,270
3,276 feet spur track, Berwick Lumber Company.................................................. 2,170
1,800 feet spur track, Bonvillain plantation, Cypremort Branch....................... 1,190
15 miles Cypremort Branch.......................................................................................... 52,500
1 mile main line track, Morgan City........................,..................................... 6,500
2,976 feet spur track, Morgan City............................................................................... 1,790
Total assessment.......................................................................................................$411,500

He, then, independently of the Board of Equalization, and acting in his capacity as local assessor for the parish, predicating his action npon Sec. 29 of Act No. 106 of 1890, proceeded to assess the depot buildings, station and section houses and the lots of ground upon which the same are located, belonging to plaintiff company and situated in the parish, together with the Morgan City bridge, and listed the same as follows, which we will call List No. 2:

Section house and lot and depot and lot at Sorrell station $509
Depot and lot at Adeline plantation.................................. 500
•Section house, depot and lot at Baldwin station ............ 1,000
Section house, depot and lot at Patout plantation.............. BOO
Depot and lot at Glencoe.................................................... 200
Section house and lot at Burguieres plantation.............. 200
Section house and lot at Franklin........................................ 500
Depot and lot at Bayou Sale station............................... 500
Section house, depot and lot at Calumet station................... 300
Section house, depot and lot at Patterson............................. 500
Section house, depot ond lot at Berwick........................... 500
TheMorgan City bridge.?...............................:........................ 250,000
Depot and lot, town of Franklin......................................... 2,000
Total assessment. $257,000

The assessor then assessed against plaintiff, on the non-resident list, the following property, which we will call List No. 3:

Lots 11,12,13 and lá, square 21, Morgan City...................................................... $‘¿00
Lots 1 to 7, square 13, Morgan City.................................................................. ‘¿ 000
Lots 1 to 7, square 23, Morgan City........................................................................ 150
Depot, wharves, etc., Morgan City.......................................................................... 6,000
Aggregating........................................................................................................ $8,350

Plaintiff makes no complaint of the action of the Board of Equali-’ zation, but does of the subsequent action of the assessor.

Shortly after the adjournment, of theformer, plaintiff company filed with the assessor the following list, as showing its mileage in the parish of St. Mary and the proper assessment thereon, according to the rate fixed by the board, to-wit:

Five miles main-line track and all appurtenances, East Morgan City, per mile..$6,500
Thirty-five miles main-line track and all appurtenances, West Morgan City,
per mile...................................................................................................... 6,500
Twelve miles new double track and all appurtenances, per mile................... 8,500
Fifteen miles Cypremorfc branch track and all appurtenances, per mile........ 8,500
One mile main-line track and all appurtenances, corporation Morgau City,
per mile................................................................................................................. 6,500

Whereupon the assessor notified the company that he did not regard the list as a correct one of the property owned by it in the parish, and served upon its agent duplicates of the lists made out by himself, showing values thereto attached.

Plaintiff thereupon filed with the assessors a protest against his listing of its property and valuation thereof, and requested a revision and correction, which application the assessor rejected.

Early in July tshe police jury of the parish met as a board of review, and plaintiff, through counsel, appeared and filed with that body a “protest against the legality and correctness of the assessment of its property in St. Mary parish for the year 1897, with a view of securing its correction.”

This protest, in substance, recites that the company had theretofore made to the parish assessor full and detailed returns of its property for assessment, etc., which returns it averred to be correct; that the assessment made by the assessor was erroneous; that he had disregarded the valuation adopted by the board of equalization, and in some instances increased such valuation; that he had so assessed some of its property that it. amounted to double assessment, and explained how this resulted, etc..; that whereas the board of equalization, in valuing the main line of the company’s road at six thou-, sand five hundred dollars per mile and the branch lines at three thousand five hnndred dollars per mile, had arrived at the same by including the value of the spur tracks as well as the value of the superstructures, stations,' section houses, etc., the assessor had taken the board’s figures for the mileage only, and then had proceeded separately to assess the spur tracks, section houses, depots, stations, superstructures, etc., and listed and returned the same for additional and independent taxation against the company; and that he had so separately and independently assessed the bridge crossing Berwick’s Bay, notwithstanding the samé is used for no other purpose than to support the rails of the road, and is, therefore, only a part of the roadbed and included in its mileage by the board of equalization in arriving at a uniform rate of valuation for the entire length of the track.

The protest concluded by asking the police jury, sitting as a board of review, to correct .the assessment of its property in the parish so as to conform to the valuation certified to the assessor by the board of equalization, thus reducing the assessment on its main line from seventy-eight thonsand dollars to forty-two thousand dollars, deducting and canceling entirely the separate assessment of the spur tracks, as well as of its section houses, stations, depots and super-, structures, including the bridge at Berwick’s Bay.

To this protest and prayer for correction and reduction the assessor made answer in the form of a written objection filed with the police jury against its consideration for the reason that the formalities of law had not been complied with by the agents of the company, they having failed to file a duplicate list of property, sworn to, as required by act 106 of 1890, within the time prescribed by law.

The jury proceeded to hear counsel representing the respective parties and then adopted a resolution sustaining the assessor’s objection to consideration of the company’s demand for correction, on the ground of failure to seasonably comply with the law.

This was on the seventh of July, 1897. Nothing further was. done by the company until about six months later when one of its agents appeared in the office of the tax collector of the parish, stating he desired to pay the taxes of the company, announcing that the same amounted to a certain sum (naming the figure, something a little over one-half of the sum the tax collector claimed to be due), being the exact amount levied against the company the preceding year. The tax collector replied that the sum named would not cover the amount due by the company, and that he would accept it only as a partial payment of the taxes owing. Saying that he desired to make-a legal tender of the amount claimed by the company to be due, the agent proceeded to count out the • money in the presence of two witnesses and offered the same to che collector, who refused it, except as a partial payment.

Defendants filed a peremptory exception in bar of plaintiff’s demand, setting up two grounds: (1) That the company failed to make out a proper list of its property for assessment for the year 1897, failed to make oath to the list that was presented, as the law requires, and that because of such default whatever right the law gave for contesting the correctness or legality of the assessment was forfeited; (2) that the suit comes too late, the same not having been filed and service thereof made within the time prescribed by law for such suits, to-wit: the first day of November of the year in which the assessment is made.

With the prayer for dismissal of the suit and dissolution of the injunction, is one for ten per cent, on the aggregate amount of the taxes and penalties due as attorney’s fees, and two per cent, interest per month from January 1, 1898, upon the amount of taxes due.

This exception was called for trial at chambers, whereupon counsel for plaintiff objected to proceedings at chambers, and upon the objection being overruled, excepted and reserved a bill. We find no error in this ruling. Sec. 56 of Act No. 106 of 1890 authorizes such causes as the present one to be tried at chambers.

The exception was sustained, the action dismissed and the injunction dissolved, with judgment against plaintiff for the special costs provided by law, as stated above.

Plaintiff appeals suspensively and devolutively, and is met here by a motion to dismiss the suspensive appeal on the ground of the insufficiency of the amount of the bond.

The order of appeal fixes the amount of the devolutive appeal bond at one hundred dollars, that of the suspensive appeal “ according to law.” The amount of the bond is ten thousand eight hundred dollars. Whether it be insufficient in amount for a suspensive appeal depends on the amount of taxes due, and that is the very issue this suit is brought to determine. The judgment of the court on the exception fixes no amount of taxes as owing — the percentage allowed as counsel fees being predicated in general terms “on the amount of taxes due by plaintiff.” The latter, figuring by one process, arrived at an amount of taxes it thinks due, and gave a suspensive appeal bond accordingly. The defendants, figuring by another process, arrive at a different and larger amount, and finding the bond not given according,to its arithmetic, moves to dismiss.

It would seem to have been a proper case for the court to have fixed the amount of both bonds, since no moneyed judgment was rendered, nor exact amount of taxes due stated. However, we do not find it necessary to enter into a calculation to determine what is the precise amount the suspensive appeal bond should have been given for. Where there is doubt the appeal will not be dismissed. Besides, if the bond be not sufficient' for a suspensive appeal, it yet remains good for the devolutive appeal. Ohaffe vs. -Oarroll, 3á La. An. 122.

The motion to dismiss is denied.

On the Merits.

A distinction is to be drawn between suits to correct an assessment, and suits which go to the inherent validity of an assessment and to the legality of the tax based thereon.

In the first class are to be put those suits in which an assessment is complained of and attacked for over-valuation and misdescription of the property listed, involving merely the regularity or correctness of the assessment.

In the second .class are to be enumerated those actions attacking an assessment as void on account of radical defects, and drawing into question not the correctness merely of an assessment, but the existence itself of any valid assessment.

In the first class of cases the attack, if successful, results not in destroying but in reducing or correcting the assessment, whereas in the second class of cases the radical defects made the basis of attack, if found to exist, render the assessment null.

It follows that in suits coming within the second class of cases there is involved not only the legality of the taxes based on the assessment attacked, but the right to collect any taxes at all predicated on the illegal or void assessment, for the existence of a valid assessment is essential to the collection of taxes.

The time limit invoked in defendant’s exception applies to the first class of cases only. Such suits must be brought before the beginning of November of the year in which the assessment complained of is made,, first, it would seem, complying with the provisions of Secs. 19, 23 and 26 of Act No. 106 of 1890. Shattuck & Hoffman vs. City, 39 La. An. 206; Union Oil Co. vs. Campbell, Assessor, 48 La. An. 1351; Kansas City, S. & G. R. W. Company vs. Davis, Tax Collector, 50 La. An. —, Acts .of 1890, p. 132, Sec. 26. The action in this class of cases (to test the correctness as to description and value of an assessment) is in the nature of an appeal from the decision of the Board of Review in the country parishes, or the committee on assessments in the city of New Orleans.

But such time limit has no applicability to the second class of cases. In Oteri vs. Parker, Tax Collector, 42 La. An. 376, this court said: “ The statutes invoked by counsel, which prescribe a limit of time for the action of taxpayers, in the courts, touching the assessment of their property, have reference to suits to ‘ test the correctness of such assessments,’ and, hence, they can not be construed as applying the same limit or restriction to actions or suits presenting questions of alleged radical defects in the assessments, sufficient to operate the absolute nullity of the same.”

The want of a legal assessment, one bringing into contestation the legality of the taxes based thereon, the right itself to collect any taxes thereon, is a radical defect which may be urged at any time in opposition to the attempted collection of taxes imposed under such assessment. In Gills vs. Clayton, Assessor, 33 La. An. 286, the court declared the legality of a tax to be in contestation when it is claimed that the tax was originally imposed or assessed in violation of some provision of law, or by one without legal authority to make such assessment. See also Adler, Goldman & Co. vs. Assessors, 37 La. An. 507; State vs. Lundie, 47 La. An. 1596.

The “ want of a legal assessment ” was said in Hickman vs. Dawson, 35 La. An. 1087, to be a radical defect.”

The case at bar comes within both classes of cases we have been considering. That is to say, as to part of the listing and valuation of plaintiff’s property it is undoubtedly an ordinary action “ contesting the correctness ” of the same and subject to the time limit; while as to another part it must be viewed as an action bringing into question the inherent validity of the assessment and contesting the legality of the tax — not subject to the time limit.

So far as Lists Nos. 1 and 3, hereinbefore set forth, are concerned, we hold this to be a suit “ contesting the correctness ” only of the assessments there shown, while as to the property appearing on list number two-it must be regarded as an action putting at issue the legality and validity of the assessment and tax sought to be collected.

The Board of Equalization which met at Lafayette officially communicated to the assessor only the rate per mile for the main line of plaintiff’s railway, and the rate per mile for all branches thereof, concluding its communication with the following direction: “Note above and assess whatever portion of said lines there may be in your parish accordingly.”

This communication, which was the official notification of the action of the board, did not attempt to state the mileage of the main lines and that of the branches of the several railways running through the parishes the board represented, nor did the board undertake to say' what tracks were to be considered main line and what branches. All that was left to the several parish assessors. The board merely established a uniform mileage rate. It would seem that only was the extent of its authority under Act 92 of 1888.

Receiving the communication of the board, the assessor of St. Mary parish proceeded to ascertain the mileage of the main line and branches of plaintiff’s railway in his parish. He assessed what he considered the main line at $6500 per mile and what he considered branches at $3500 per mile. These were the board’s figures. In estimating the mileage of the main line he added twelve miles of double track, considering that it came under the head of “ main line.” If this be erroneous it is nothing but an overvaluation, which should have been the subject of a suit for corrections seasonably brought.

So, too, with the branch lines listed. If he made the mileage of such branch lines greater than they should be, or added spur tracks as branch lines which should not have been added, these are rather disputes “ concerning the descriptions of the property listed and the valuation of the same as assessed,” in the language of the statute, and suit to test the correctness of the assessment should bave been instituted on or before the 1st of November of the year.

Some parts, at least, of such assessments were proper, and if this be so, the assessment was not void, and the errors complained of are not “radical defects,” to be taken advantage of by suit filed any time prior to collection of the taxes based thereon.

As to List No. 3, the property included therein appears to be lots of ground in certain squares in Morgan City and wharves there, which are the proper subject of assessment and taxation independant of the assessment of trackage of the railway. With regard to the assessment of such property, contests before the courts over its description and valuation must surely be by suit instituted within the time fixed in the statute.

But as to property included in List No. 2 the situation is entirely different. The question raised is one striking at the existence itself of the right of independent or separate assessment of such property apart from the roadbed or line of railway of which it is claimed to be part. Plaintiff’s contention is that section houses, depot buildings, bridges, superstructures, substructures and all erections on its right of way, as well as all parts of the land forming its right of way, are necessarily and legally included in the assessment placed upon its roadbed or trackage, and there is no authority in law for its separate assessment. If this be so, its inclusion in plaintiff’s assessment as independent subjects of assessment and taxation is a “ radical defect,” not subject to the time limit heretofore referred to, and the collection of the tax thereon may be resisted, as is sought to be done in the present action.

The peremptory exception filed by defendants is good and must be maintained, and the suit dismissed so far as the same affects the property and its assessment embraced in Lists Nos. 1 and 3.

But, as to the property and its assessment included in List No.'2, the exception must be overruled and the suit reinstated.

No sufficient tender of payment of taxes due on the property mentioned in Lists 1 and 3 was made, and, therefore, the statutory penalty, of two per cent, per month thereon from the first of January, 1898, as well as the ten per cent, on the amount of such taxes as attorney’s fees, must be enforced.

It is therefore ordered, adjudged and .decreed that the judgment appealed from, in so far as it sustains defendant’s exception and dismisses plaintiff’s action in its bearing upon the property and the assessment thereof included in Lists Nos. 1 and 3, hereinbefore mentioned, be affirmed, and that the special costs — two per cent, per month interest from January 1, 1898, and ten per cent, as attorney’s fees, mentioned in said judgment — be reduced so as to apply only on the taxes due on the property included in said Lists 1 and 3.

It is further ordered, etc., that the judgment appealed from, in so far as it sustains said exception and dismisses plaintiff’s suit and dissolves its injunction in its bearing on the property and the assessment thereof included in List No. 2, hereinbefore mentioned, be annulled, avoided and reversed, and that to this extent said exception be overruled and the suit and injunction reinstated, to be proceeded with according to the views herein expressed, and the law-costs of appeal to be borne by defendants and appellees.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 12,784.
    Succession of Dr. Eugene Rabasse.
    Any party in interest may obtain the judgment homologating the account of the
    executor. The affidavit of the executor to the correctness of the account suffices for the judgment of homologation. O. C. 1172, 1173; 29 An. 521, 327; 21 An. 511.
    Thejudgmentof homologation, whenfinal, precludes subsequent oppositions, and entitles the parties placed on the account to the distribution fixed by the account and judgment. 0. 0., Art. 1065; 12 La. 121; 4 An. 450; 1 Hennen’s Digest, p. 759, No. 2.
    Reserving enough to cover oppositions, the executor may be required, when the account is homologated, to pay the amounts to the parties placed on the account as entitled to such amounts.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      E. J. Meral, J. N. Augustin and Chas. E. Claiborne for Heirs, Plaintiffs in rule, Appellees.

      Henry Chiapella and Solomon Wolff for Executor, Defendant in rule, Appellant.
    Argued and submitted April 23, 1898.
    Opinion handed down May 16, 1898.
    Rehearing refused June 24, 1898.
   The opinion of the court was delivered by

Miller, J.

The appeal is by the executor of the deceased from the judgment directing the payment to the heirs of the deceased of the amount shown by the executor’s account homologated to be in his hands accruing to the heirs, the judgment providing that the executor should, however, retain a sufficient sum to cover oppositions to the account.

The executor’s account, exhibiting a large sum over the debts of the deceased, was homologated on the application of the heirs. They had previously opposed some of the charges on the account, and oppositions had been made by parties claiming to be creditors. The demand of the heirs on the rule now before us on this appeal is that the executor, retaining enough to cover the oppositions, pay to the heirs the residue in his hand and the lower court made the rule absolute.

The executor’s resistance to this judgment is placed substantially, on the grounds that the heirs could not apply for the homologation of the account; that the judgment of homologation was obtained on no evidence, but it is conceded the executor appended the usual affidavit of the correctness of the account when he filed it; that the heirs had opposed the account, and finally that the succession is not closed.

When the legal notices of the filing of an executor’s' account have been given, as required by law, and the legal delays for oppositions have expired, it is settled that any party in interest may require the account to be homologated. The objection that the account was not proved if the executor could be deemed entitled to take that ground, is answered by his affidavit to the correctness of the account, the usual evidence required by our jurisprudence, and for many years it was considered the codes exacted no evidence to homologate the-account. C. C., Arts. 1172, 1173; Succession of Planchet, 29 'An. 521; Succession of Cloney, 29 An. 327; Succession of Ross, 21 An. 511; Succession of Dougart, 30 An. 270. We do not understand that the opposition of. the heirs to some of the charges in the account, which, if sustained, would increase the amount coming to them, precludes them from demanding payment from the executor of the amount shown by the homologated account to be in his hands, over and above every debt he places on the tableau; provided, enough is retained by him to cover oppositions filed by creditors. Lastly, the judgment of homologation precludes any demand in respect to the fund the account proposed to be distributed, not made by oppositions when the judgment is rendered, and that judgment, when final, closes litigation as to the fund and entitles the parties placed on the tableau to the distribution the account proposes. C. C. 1065; Franklin vs. The Syndics of Warfield, 2 La. 127; West vs. Creditors, 4 An. 450; Ory vs. His Creditors, 12 La. 121.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed at appellant’s costs.


text:
    12,893.
    In re A. J. Ingersoll, Applying for Writ of Review to the Court of Appeals, First Circuit, in Case J. O. Toole vs. C. H. Minge.
    Discretionary with this court, on the case as presented, to grant or withhold the writ of certiorari, or review, contemplated by the latter clause of Art. 101 of Constitution o£ 1898.
    Not intended by the power there granted to make of the Supreme Court a sort of superior court of appeals over the Circuit Courts, to take jurisdiction of, and hear and determine any and all eases decided by the latter courts.
    Nor that the Courts of Appeal should be made merely a stopping place for causes on theirway from the District Courts to the Supreme Court.
    It was, rather, the intention that the power thus lodged in the Supreme Court should be exercised only in special or extreme eases, whose peculiar circuni stances, as to facts or law, justify, in the opinion of this court, a resort to it.
    AT CHAMBERS.

      Leonard & Randolph for Petitioner.

      D. T. Land for Respondent-.
    Petition filed June 30, 1898.
   The opinion of the court was delivered by

Blanchard, J.

On application of the State of Louisiana on the relation of A. J. Ingersoll, one of defendants, for a writ of certiorari or of review, to the Oourt of Appeals, First Circuit, State of Louisiana.

At Chambers.

Plaintiff, on a state of facts alleged in a petition addressed to the District Oourt in and for the parish of Caddo, recovered a moneyed judgment against A. J. Ingersoll, a member of defendant’s ñrm. On appeal this judgment was affirmed by the Court of Appeals of the First Circuit.

The opinion of the latter court was handed down on the 20th of June, 1898.

On the 80th óf June application was filed in this court, praying that a writ of certiorari or review do issue to the Court of Appeals, directing it to send up the record of the case to the end that the decision may be reviewed and passed upon here.

It is averred that a ease is presented for the action of this court under Art. 101 of the Constitution of 1898, and it is asked that meanwhile all proceedings in execution of the judgment be stayed.

It nowhere appears that any notice of intention to apply for the writ was given either to the Court of Appeals or to the plaintiff in whose favor the judgment was affirmed.

The first part of Art. 101 of the Constitution authorizes the Courts of Appeal to certify to this court any question or proposition of law arising in any cause pending before them, concerning which they desire instructions for its proper decision.

The pending application does not come within that provision. The Court of Appeals does not certify any proposition of law to us and asks for no instructions for its guidance in determining the cause submitted to it on appeal.

The latter part of Art. 101 vests in this court the power to require, by certiorari or otherwise, any case to be sent up to it by the Courts-of Appeal for review and determination here, provided the application be made within thirty days after the decision of the Court of’ Appeals has been rendered.

It is under this clause that the present application is made.

It is clearly the intention of this part of the article of the Constitution referred to that it should be entirely discretionary with this court, on the ease as presented, to grant or withhold the writ. This is demonstrated by the fact that no particular kind or class of cases is specified as to which the application may be made.

It was not intended by a resort to the power here granted to make of the Supreme Court a sort of superior court of appeals over the Circuit Courts, to take jurisdiction of, and hear and determine any and all cases that may have been decided by the latter courts in the exercise of their legitimate, constitutional jurisdiction. In other words, it was not intended that the Circuit Courts of Appeal should be made merely a stopping place for causes between one hundred dollars and two thousand dollars on their way from the District Courts to the Supreme Court. '

It was, rather, intended that the power thus lodged in the Supreme Court should be exercised only in special or extreme cases, whose peculiar circumstances as to the facts or the law governing the same justify, in the opinion of this court, a resort to it.

For example, where the Court of Appeals refuses to be guided, in a clear ease, by the well established jurisprudence as defined and laid down by this court, a case would be presented warranting this court in sending down its writ of review to bring up such cause for review and determination. This might be necessary to enforce uniformity of jurisprudence throughout the State in the courts thereof.

Other cases for other reasons may arise justifying a resort to the writ — care being always taken against its abuse, to the impairment of the dignity and power and usefulness of the Courts of Appeal, and protracting litigation and deferring the final enforcement of just rights.

The application now before us presents no such special or extreme case. An ordinary cause of action was prosecuted to judgment in the District Court and this judgment on appeal to the Court of Appeals is affirmed. The party cast seeks to bring the case here for review, taking the chance offered, hoping for its consideration and reversal by this court — evidently regarding it in the light of a further and additional right of appeal. Neither the facts nor the law as presented in the application and accompanying papers make out a case coming within the intendment of the constitutional provision, and the writ sought is denied.


author: Breaux, J.

text:
    No. 12,841.
    Norman F. Thompson vs. S. Levy, Jr.
    Plaintiff claimed a special mortgage prior in date on property adjudicated to defendant.
    He claimed also that by the adjudication and the fact that by operation of law he, defendant and adjudicatee. was authorized to retain the price, he thereby became personally indebted for the amount of the special mortgage.

      Held: that the special mortgagee holding the first mortgage on property has no cause of action to hold the purchaser personally responsible for the amount of the first mortgage.
    The purchaser not having assumed the first mortgage is responsible as a third possessor and the property was transferred to him cum onere.

    The question was passed upon in Bacas vs. Hernandez, 3L An. 86; Trondle vs. DeBouchel, 88 An. 759. It was decided in these cases that the special mortgagee had no personal claims. The fact that a purchaser, who, for purposes of his own, delays payment, may be held personally for interest accruing from date of the sale, as in 29 An. 88á, on the special mortgage, first in rank, is not ground upon which it can be held that he is liable personally on the mortgage with interest to the day of sale.
    ON APPEAL from the First Judicial District Court for the Parish of Caddo. J. Henry Shepherd, Judge ad hoe.

      Wise & Herndon for Plaintiff and Appellant.

      T. Alexander for Defendant, Appellee.
    Submitted on briefs June 3, 1898.
    Opinion handed down June 22, 1898.
   The opinion of the court was delivered by

Breaux, J.

This'is a suit brought by plaintiff, a mortgagee, for a judgment against the defendant, the adjudicatee of the property on which plaintiff’s conventional mortgage rested. The purchaser at sheriff’s sale, by foreclosure, held a mortgage, second in rank. His bid on the property was for a small amount above the sum total secured as to its payment by the first mortgage. The claim of plaintiff is that by the effect of the adjudication defendant became personally responsible for the debt. Plaintiff does not affirm that the defendant ever by any act or utterance assumed payment of the first mortgage debt. He substantially confined ■ the right he claims as having arisen under the operation of the purchase.

The defendant interposed an exception of no cause of action. The exception was sustained and plaintiff’s suit dismissed. He appeals!

The statement of the facts discloses that the only question at issue is whether the defendant is entitled to the position of third possessor in this litigation. The principle that he is a third possessor has been, in our judgment, decided in a large number of cases-

Able and energetic counsel for plaintiff, in substance contend, if the property is adjudicated only subject to the prior encumbrance without any liability on the part of the purchaser, there would be no reason in precluding an adjudication, unless the highest bid is large enough to pay their prior encumbrances.

Counsel further argue: if the purchaser under the circumstances of this case takes the property subject to pre-existing mortgages, and does not incur personal liability for the price, then in case the apparent prior mortgages do not really exist he would get the property without paying the full amount of his bid.

With reference to the second proposition advanced by plaintiff, that in case the apparent prior mortgage does not exist, the purchaser would get property without paying the full amount of his bid.

We think the proposition is answered by the statement, that in any and all contingencies the purchaser is bound for the full amount of his bid. Whatever takes place after the sale he remains bound for the whole of the purchase price.

Recurring to the first proposition: the extent of the adjudícateos’ obligation under the effect of the law. We think it sufficient in answer, to give the definition of a third possessor: One who buys the mortgaged property without assuming to pay the mortgage. If one buys real estate by notarial or other act and does not assume the payment of the first mortgage, he is bound only as a third possessor. He must either give up the property or pay the amount for which it was .mortgaged. He is limited to one or the other alternative. This is the full extent of his responsibility as a purchaser.

In view of the law’s silence upon the subject, we think it not permissible to difference the case of one who buys property at sheriff’s sale in foreclosure proceeding from the case of one who buys by a conventional sale.

The purchaser, beyond question, is entitled to retain the amount out of the price for which the property was adjudicated. But he retains it as a third possessor, not as one who has assumed the payment of the debt. The amount retained, as we take it, is not an amount which the purchaser assumed to pay. The mortgagee, with special mortgage, is not referred to the amount realized as being in the hands of the purchaser. His claim is secured by special mortgage and not by any personal obligation of the purchaser. The-language used in the Code of Practice, in so far as relates to the mortgage, does not suggest any responsibility further than before stated. We are not at liberty to supply the hiatus, if hiatus it is. We do not think it is. The articles of the Code of Practice as we read them, look to the payment of the special mortgages prior in rank to the seizing creditor; if it be not paid it is subject to sale.

The question is not one of first impression.

In a well considered case, this court held, that the purchaser at sheriff’s sale is a third person, and cited Art. 709 in connection with Article 68 et seq. as applying, and that the proper action was against the purchaser of the property seized as a third purchaser of mortgaged property. Troendle vs. De Bouchel, 33 An. 759.

If the purchaser refuses to pay the price, the mortgagee has immediate recourse against the purchaser, against whom as a third person the hypothecary action lies. Bacas vs. Hernandez, 31 An. 86; Duncan vs. Elam, 1 Rob. 135.

The learned member of the bar, before whom the ease before us for decision was tried as Judge ad hoe, with more than usual industry, gave clear and elegantly written reasons for his judgment. He, in addition, quoted from Millard’s Equity; a quotation we insert-here, as applying: “A purchaser who takes a conveyance of land without agreeing to pay such mortgage, only takes the land subject to the charge and if he neglects to pay off the charge, he will lose his land by the foreclosure and sale, or will only be permitted to take the surplus, if any, after paying the mortgage debt, and the expense of foreclosure. But the mortgagee can not have any personal claim against him for the deficiency unless he has made an agreement to pay the mortgage debt either with the mortgagee himself or with some one who is legally or equitably bound to pay such debt to the mortgagee.”

Plaintiff’s counsel in support of plaintiff’s position, refers to Perry vs. Holloway, 10 Rob. 107, holding: “if a special mortgage certified to exist on the property had been extinguished, the alleged debtor might recover of the purchaser the amount thus erroneously certified,” and with some force he propounds the question: How could recovery be made of the purchaser if his only liability as purchaser was that he took the property subject to the mortgage?

We willingly agree with the following,, quoted from the last cited decision, supra: Equity prohibits the purchaser who has not paid the price from taking the property. He must pay the whole price to some one before the property is completely his.

But in the last cited case the sale was decreed null, and, in consequence, the original owner remained the owner, and it was not adjudged that the purchaser of a title annulled, was responsible personally for the amount of the mortgage. As we interpret the principle applying, had the adjudicatee become the owner under a valid .title, the certificate of mortgage of his indebtedness, being in part false, the property would have been encumbered in favor of the original owner for the amount and not the purchaser personally. The purchaser is not bound for any amount over and above his bid.

We take it that this conclusion is an answer to the question propounded.

There is perhaps an expression hastily written in the case (Suecesion of Triche, 29 An. 384), to which our attention is invited by plaintiff’s counsel; the amount due on a prior special mortgage, the court holds, was assumed as to its payment, by the purchaser.

We think we may fairly infer that the purchaser would not have been held bound in a direct action against him for the price, but that it would have been held that the property was in his possession cum onere had the direct issue arisen.

In the last cited case, Succession of Triche, 29 An. 384, there was a question of ihterest involved. The purchaser, it was held, became personally bound for the interest. He had, for his own benefit, delayed payment of the mortgage. It was in our judgment but just for him to pay for the use of the amount secured by mortgage.

It was, in view of his delays in payment, made his special personal obligation to pay. Otherwise,” said the court, “ it would be to the advantage of the purchaser to delay the payment of the portion of the price left in his hands as long as possible and the debtor would be deprived of his property, whilst interest would be constantly accumulating.” Yeatman vs. Erwin, 14 An. 147. We think in that case there was a different question from the one here involved. Before us there is no issue regarding interest growing out of delays for the benefit of the purchaser.

But taking up again the merits of the question all will admit that no purchaser is bound for the mortgages on the property he buys unless he assumes the payment.

The purchaser has not assumed the payment, nor does the law contain the declaration that he shall be considered as one who has assumed payment of the prior mortgage.

Again it is settled that a purchaser takes the place of the seized debtor. He, as relates to the property, stands in his stead. His responsibilities are not greater.

Yet, under plaintiff’s theory, if the seized debtor is a third possessor, the purchaser by the mere operation of law would not be a third possessor as relates to the mortgage, but the debtor for its amount. Again, if the purchaser under that theory is made to assume the debt he becomes personally the debtor, and is not entitled to the same subrogation arising from payment that a third possessor would have; and, finally, why should the purchaser be placed in the attitude of having to settle or fix amount due on a mortgage when that is an act which the debtor himself should see to.

For the reason that the law and the evidence are in favor of the defendant we have concluded to affirm the judgment in this case.

It is affirmed.

Nicholls, 0. J., dissents.


text:
    No. 12,831.
    The Middlesex Banking Company vs. Niemeyer & Darragh.
    The truth of plaintiff’s averments being admitted by the exception of no cause of action, to warrant a dismissal of the action it must appear that the allegations admitted true are all disposed of by the effect of the plea.
    He, defendant, for the hearing having admitted certain alleged rights (without passing upon the question of their validity at this 'time) the court holds, that the trial of the asserted rights of plaintiff, as against defendants’ title, may be had under the pleadings.
    The deed annexed by plaintiff to its petition, setting forth defendants’ rights of servitude (disputed by plaintiff), gives rise to question which may be determined in this litigation. If defendants have a servitude, it is to the interest of all concerned that it be localized; its character determined and limit fixed. This can be as well done now under the pleading, as at another time under other pleading,
    The multiplicity of actions are not favored. It is even a maxim that interest reipublicos nt sit finis litium.

    ON APPEAL from the Fifth Judicial District Court for the Parish of Morehouse. Potts, J.

      H. B. Boyd for Plaintiff, Appellant.

      James Bussey (Howe, Spencer & Cocke of Counsel) for Defendants, Appellees.
    Argued and submitted June 1, 1898.
    Opinion handed down June 13, 1898.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff appealed from a judgment sustaining an exception of no cause of action.

Appellant, the Middlesex Banking Company, enjoined the defendants, from building levees, dams, ditches, and from thereby flooding the lands adjacent, upon which plaintiff has a mortgage.

Appellant alleged that some time prior to the twentieth day of January, 1891, a Mistress Peterkin was the owner of the “Line Place,” embracing a large area of cultivated lands and a large “ cypress brake.”

At different times, after she became the owner of the plantation, she executed mortgages upon the place to secure the payment of borrowed money. Newton and Cason obtained a judgment against Mrs. Peterkin, in November, 1888, which plaintiff alleged became a judicial mortgage against the plantation; Levy & Sons also obtained a judgment, and C. Newton, also which became judicial mortgages.

With these mortgages resting against the property, she sold the “cypress brake” to the defendants and appellees on the 20th of January, 1891.

The deed contained the stipulation that the vendees, the defendants here, in order to enable them to remove the cypress timber from the land were to have the right to construct and maintain dams and levees on the land, or on vendor’s land adjacent; also the right to flood the land, and do such other acts and make such improvements needful in removing their timber, or in operating their mills.

On the eleventh day of July, 1891, the “ Line Place,” the part remaining, was sold at sheriff’s sale, and was adjudicated to 0. Newton, June 20, 1892. He, Newton, mortgaged the same property to appellant to secure a loan.

The “ Line Place’.’ (except the “ cypress brake,” the property of defendant), is now in the hands of the sheriff, under a writ of seizure and sale, issued in accordance with plaintiff’s petition to foreclose their mortgage.

The sale has not yet been made, nevertheless plaintiff, alleged that the sale toNewton under a fi. fa. relieved the land from tbeservitude granted to enable vendees to remove the timber imposed upon it by Mrs. Peterkin in the sale to the defendants’ vendees on January 20, 1891, and that defendants have no right under the deed to build any levees, dams, tramways, or to make any other improvement in any manner affecting the adjacent land mortgaged to theirs; that the works defendants are making preparations to carry out will obstruct the drainage of the plantation mortgaged, and lessen its value.

Plaintiff further alleged that the property mortgaged was insufficient in value to pay the amount of the debt of the Midlesex Banking Company, amounting to about ten thousand seven hundred dollars, and that the debtor, Newton, is insolvent.

The court a qua dissolved the injuetion, dismissed plaintiff’s petition, and fixed the fee of defendants’ attorney for services in matter of dissolving the injunction at fifty dollars. From the judgment the plaintiffs prosecute this appeal.

In this court the defendants answered the appeal and asked for an increase of the judgment allowing damages.

We will not enter upon a discussion of the right a mortgagee has to restrain a mortgagor from committing any act depreciating the value of the property mortgaged,' and decreasing the value of his mortgage. The right is too manifest to admit of discussion. It is also evident that cases may arise to justify an injunction in protecting the rights of the mortgagee against acts damaging to him as a mortgagee.

It is, in our judgment, equally as plain, with reference to the right of servitude, that it may be protected by' injunction, if acquired prior .to the date of the mortgage; but that injunction will not lie to protect the right, if of a date subsequent to the date the mortgage was given.

We are well satisfied of the correctness of our position. If plaintiff dates its asserted right against the servitude from the day the owner (Newton) purchased at sheriff’s sale, that is on the 11th of July, 1891, it has no case. Prior to that time, Mrs. Peterkin, Newton’s author, sold to the defendants part of the place with the servitude they now claim. From the date they became owners of the property entitled to a servitude, appellees are not third persons, and therefore they have an absolute' right as against all claims of origin since their purchase.

This brings us to a consideration of plaintiff’s averments in its petition regarding the dates to which plaintiff traces its right in opposition to the servitude claimed by defendants.

Plaintiff sets forth a number of mortgages bearing on the property, recorded át a daté anterior to defendants’ title; it also alleges, that the mortgagor to it, C. Newton, obtained a judgment against Mrs. Peterkin, whoso property he purchased, and plaintiff avers it (the judgment), “ became a judicial mortgage.”

Plaintiff describes in its petition the part of the property which was bought by Newton, on which it has a mortgage; pleads the Newton title, and avers that he bought under aft. fa.

These facts are admitted for the time being.

Plaintiff annexed to its petition a copy of defendants’ title, ia which is set forth the stipulation to the right of servitude, which it, plaintiff, declares is not due by the adjacent property on which its mortgage bears.

Defendants contend that these stipulations regarding the servitude claimed by them have, by the annexing of the copy, become an affirmative allegation of plaintiff’s petition, and that if the specifications and stipulations are contrary to plaintiff’s averments they destroy his cause of action.

The judicial mortgage of the owner, Newton, prior to his becoming the ownef, is temporarily admitted, as well as all the allegations of fact of plaintiff’s petition. The fl. fa. is before us, and the title under it are all admitted.

If the document annexed, the deed to yhich we have already alluded, had not been annexed there would not be the least grounds for an exception of no cause of action.

The issues would be sufficient to require some action on the part of the court.

As we interpret the deed of sale annexed to the petition, it does not have the effect of completely destroying all cause of action.

Conceding for the discussion that a servitude is due, its nature and extent may be established under the pleas presented. To that end, at least, the issues may be heard.

We deem it, in the interest of all concerned, to allow plantiff and defendants to be heard in order that their differences may be settled.

The statements are clear and concise enough to pass upon the claims presented. Even where there is a probability that the demand will be very much reduced there is a cause of action. *

We pass to the next ground argued by defendant: Remote are probable damages. They will not justify an injnnction.

On this branch of the case, plaintiff’s allegations are plain and direct enough to sustain its action.

If defendants’ position is erroneous, plaintiff set forth grounds enough for an injunction. The lands on which the servitude is claimed will, by it, be rendered worthless, and the debtor is insolvent, is in substance the allegations made and which we consider as relates to damages ample enough to sustain the action.

We do not infer that they are, if plaintiff is damaged at all, remote and prospective, but actual and present.

It is therefore ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed, and that this case be remanded to be tried in accordance with the views above expressed. Appellee to pay the costs of appeal.


text:
    No. 12,824.
    State of Louisiana vs. Israel Rogers.
    No bill of exceptions was reserved necessary to attest the supposed error.
    There was no error apparent on the face of the record. In the absence of any bill of exceptions or assignment of error of any sort, or error apparent on the face of the papers, the verdict and decision of the trial court are not reviewable.
    AN APPEAL from the Sixteenth Judicial District Court for the Parish of Livingston. Reid, J.

      M. J. Cunningham,, Attorney General, and D. S. Kemp, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.
    Defendant, Appellant, unrepresented by counsel in tbe Supreme Court.
    Submitted on briefs June 3, 1898.
    Opinion handed down June 13, 1898.
   The opinion of the court was delivered by

Breaux, J.

A bill of indictment was found against the defendant charging him with cutting with a dangerous weapon, with intent to kill and murder.

The indictment sets forth all the elements needful to constitute the crime.

So far as the record discloses it was found by a grand jury that had been regularly empaneled.

The accused was arraigned. He plead not guilty.

The case was assigned, and on the day he was tried by jury he was found guilty as charged.

He applied to the court for a new trial on a number of grounds.

The motion was overruled. He was sentenced to the State penitentiary for a period of twelve months. He appealed from the verdict and sentence. The accused reserved no bills of exceptions. There was no evidence taken in support of his grounds for a new trial which required evidence to sustain them.

On appeal no assignment of errors was filed. He is not here represented by counsel.

It is settled by numerous decisions, where there is not of record a bill of exceptions or assignment of error, the judgment will be affirmed.

We have read over the record carefully and have found no ground upon which the accused is entitled to relief.

It is. ordered, adjudged and decreed that the judgment appealed from in this case is affirmed.


text:
    No. 12,815.
    The State of Louisiana vs. Cornelius Keasley.
    Act44 of 1890 is not unconstitutional on the ground that under its terms, one not guilty of an offence might be convicted.
    It would be the duty of the court to see that no judgmentbe rendered which would convict an innocent person whose act of carrying arms for legitimate purposes the statute never intended to denounce.
    The word “ wilful ” contained in the title of the act, but not contained in the body of the statute, was not an illegality rendering it proper or lawful to annul and avoid the statute. The court may refuse to receive a verdict not responsive to the charge.
    A verdict finding the accused guilty, following the language of the statute is not defective.
    The information charged the defendant with shooting with a dangerous weapon to kill and murder.
    The verdict returned, that the accused was guilty of shooting “ with intent to kill.” Under Art. 44 of 1890, an offence of the same generic class is the offence with which he was charged.
    “ Whatever conveys the idea to the common understanding will suffice and all fair intendment of the verdict will be made to support it.” Bishop, Sec. 1005; 4th Edition.
    ON APPEAL from the Twentieth Judicial District Court for the Parish of Assumption. Guión, J.

      M. J. Cunningham, Attorney General, and G. A. Gondran, District Attorney, for Plaintiff, Appellee.

      John Marks for Defendant, Appellant, Beattie & Beattie, amici eurise.

    Argued and submitted May 7, 1898.
    Opinion handed down June 22, 1898.
   The opinion of the court was delivered by

Breaux, J.

The information filed against the defendant charged him with having wilfully, feloniously and of his malice aforethought, shot Joseph Antoine with a dangerous weapon (a pistol), with intent the said Joseph Antoine then and there feloniously, wilfully and of his malice aforethought- to kill and murder.

The jury returned a verdict of guilty of shooting with a dangerous weapon with intent to kill. Upon this verdict he was sentencep to six months’ imprisonment.

He appealed.

Four bills of exception were reserved by him during the trial.

In the first bill he sets forth, that he objected to the judge’s charge in which he instructed the jury, that a verdict of guilty of shooting with a dangerous weapon could be found under Act 44 of 1890.

The objections were, that this act is unconstitutional, as it infringes upon the right to bear arms and upon the freedom and liberty to protect one’s rights.

Further: That the body of the statute made no provision against wilfully shooting.

In the second bill of exceptions he complained of the court’s action in having ordered the jury to change the form of the verdict.

The first verdict read: Guilty of shooting “at ” with a dangerous weapon with intent to kill. The word “ at V italicized by us was not inserted in the second verdict returned by the jury.

Accused through counsel contends, that the first verdict, though not responsive, was one which illustrated the fact that there was merely a shooting at, and that the court was without authority to give the instruction which was given.

The third bill of exceptions relates to the action of the court in overruling defendant’s motion for a new trial.

The fourth bill of exceptions, we take it, is closely related to the second bill of exceptions; it was directed against the second verdict after the change had been made under the instructions of the court.

The motions made for a new trial and in arrest of judgment, and the grounds urged as contained of record, are substantially similar to the grounds narrated in the bills of exceptions.

In our judgment, Act 44 of 1890 is not unconstitutional on the ground that the law-making power attempted to denounce as a crime an act which might be consistent with innocence.

Conceding the fact asserted, the only effect of an act of that character would be to impose the duty upon those charged with its enforcement and interpretation of reading out of the law as not intended to be covered by it, all acts not criminal in their nature.

In State vs. Voss, 49 An. 446, we had occasion to consider a similar point and to arrive at the same conclusion as here.

With reference to the absence of the word “wilful” in the body of the law. In our view, the law is not thereby made defective. The General Assembly has the power to omit that word and denounce as a crime the act here denounced.

Besides the presence of the word “wilful ” in the title could not be ignored in the proceedings.

Indictments as to the character of the act charged would have to be made to conform with the requirements of the statute under the title.

We pass to the objection urged to the instruction given by the court regarding the form of the verdict.

Counsel for the accused does not controvert the proposition that a court may decline to receive an illegal or imperfect verdict.

He contends that the result was after the court had given its instructions regarding their power to make a change, the jury instead of making correction and change resumed its deliberations and changed a finding previously announced. That the first verdict showed that the jury had concluded that though defendant had shot at Antoine he had missed him. That this finding was changed in consequence of the court’s instructions regarding their first finding.

The following from Bishop’s Criminal Procedure directly applies:

“When the jury comes in with a verdict it is not as of course to be immediately received in the form in which it is rendered. And it is probably the correct doctrine that the judge may require the' jury to pass on the verdict upon the whole indictment in such form of words as shall constitute a sufficient finding in point of law, or if they refuse decline altogether to accept the verdict. It seems quite plain that in every case of a verdict rendered the judge or prosecuting officer or both should look after its form and its substance so as to prevent a doubtful or insufficient finding from passing into the-record of the court.” Vol. 1, Sec. 1004.

It was proper for the court to give additional instructions to. the jury in order that they might bring in a verdict in accordance with their finding. We did not discover that the court directed the jury what should be their verdict. Hypothetically, as is usual in giving-instructions to juries, he gave them the information that they might render a verdict in another form if their finding of the facts warranted such a finding. We do not infer that there was an intimation thrown out by the court to the jury as to the kind of verdict to be returned.

A court may instruct a jury as to the form of the verdict, without trenching upon questions relating to the substance.

It is settled by repeated decisions, where the jury returns an incomplete verdict, or one not responsive to any charge in the indictment, the court may direct them to retire and bring in a proper verdict. It follows, that the court may inform the jury — without'necessarily suggesting what should be the verdict — why it is that the verdict is incomplete, or not responsive to the charge.

In support of the position, that the first return of the jury should have remained unchanged and should have been entered as the verdict in the case, the accused assumed, that it was the intention Of the jury to find him guilty of shooting at, and not of shooting; in other words, that while he had shot at,” he had not actually shot and wounded the prosecuting witness.

He concedes, that the first verdict was not responsive to the charge. This admission, we take it, disposes of the point.

The courts have repeatedly held, that it was proper in the trial judge not to receive a verdict not responsive to the charge.

The defendant is without right to control the verdict by assuming that the unresponsive verdict was really the verdict intended and no other; that it contained a true ac.count or statement of the facts it was the jury’s intention to find.

We pass to a consideration of defendant’s objection grounded on the illegality of the verdict. It reads, “ Guilty with a dangerous weapon with intent to kill.”

The verdict is in the language of the statute. It follows, we think, that it was a legal verdict. They found the defendant guilty of the act which the statute denounces. “The verdict being in the language of lay people, need not follow the strict rules oí pleadings or be otherwise technical. Bishop Grim. Pro., Vol. 1, Sec. 1005.

Here the jury followed the very words of the statute. While in view of the title of the statute it is proper that the indictment or information should set forth the wilful intent, the verdict which does not contain the words is not, in our view, thereby made defective. The information charged the accused with the intent to kill and murder; they found him guilty of the lesser offence of the same generic class: Intent to kill. To that extent they limited their verdict. It was a partial verdict completely covering the crime, the jury intended to find.

It is therefore ordered, adjudged and decreed that the verdict of the jury and sentence of the court be and they are affirmed.

Nicholls, O. J., dissents.


text:
    No. 12,802.
    Bickham & Son vs. W. P. Hutchinson and C. H. Bailey.

      On Motion to Dismiss. — There were substantially two decrees and in consequence, properly, two appeal bonds were furnished, instead of one.
    Nothing in the law required the appellants to join in one bond of appeal.
    The erroneous substitution oE “ or” to “ and” in the condition of the bond was not cause to dismiss. There was a substantial compliance with the forms required.

      On the Merits. — The item of damages set forth may be covered by one amount alleged.
    A gross sum may be claimed embracing each item. Hernsheim vs. Levy, 32 An. 340.
    The writ of attachment had been dissolved, and the only question remaining for decision was the amount of damages claimed in reeonvention by defendants in attachment.
    The court considered the question of actual, pecuniary loss, and the different causes constituting damages, and all injury to business and credit.
    In view of the limited business of the defendants and their failure to do anything toward minimizing damages, that they might in part have minimized, the court materially reduced the amount of damages allowed each defendant.

      \ PPEAL from the .Sixteenth Judicial District Oourt for the Parish of Tangipahoa. Reid, J.

      P. B. Garter, Ellis & Ellis, Glay Elliott for Plaintiffs, Appellants.

      B. M. Miller and W. B. Kemp for Defendants, Appellants.
    Argued and submitted May 4, 1898.
    Opinion handed down May 16, 1898.
    Rehearing refused June 28, 1898.
   The opinion of the court was delivered by

Breaux, J.

This was a suit for damages growing out of a writ of attachment obtained by plaintiffs on the allegation that the defendants had mortgaged, assigned or disposed of, or were about to mortgage, assign or dispose of their property, rights and credits with intent to defraud their creditors.

Defendant’s motion to dissolve the attachment was sustained by the District Oourt.

On appeal to the Circuit Oourt of Appeals, the judgment was affirmed.

The case was tried on its merits after the attachment had been dissolved, and judgment was rendered in solido in favor of the plaintiffs and against the defendants for the sum of four hundred and eighty dollars, with interest.

On the reconvention of one of the defendants, W. P. Hutchinson, he recovered judgment for damages against plaintiffs in the sum of two thousand seven hundred and fifty dollars, with interest.

On the reconventional demand of the other defendant, O. H. Bailey, he recovered judgment for damages against plaintiffs in the sum of twelve hundred dollars, with interest.

Plaintiffs appealed.

The appellees moved this court to dismiss the appeal and urge in support of their motion, that the amount of the appeal bond does not exceed by one-half the amount of the judgment rendered against the appellants and besides that the appeal bond does not contain the condition that the appellant shall prosecute his appeal.

Plaintiffs have furnished two bonds, one in favor of W. P. Hutchinson for the sum of four thousand one hundred and twenty-five dollars, and the other in favor of C. H. Bailey, the other appellee, for the sum of one thousand eight hundred and seventy-five doliars.

The conditions of each bond were that the“ appellants shall prosecute their said appeal with effect, or shall pay and perform such judgment that may be rendered against them.”

With reference to the amount of the bond, it is true that only one judgment was rendered in the suit, but it decreed the amount each defendant was entitled to in the opinion of the court a qua. The defendants had severed in their defence,each claiming an amount part of which was allowed. There was nothing informal in executing two bonds. There was in favor of each defendant a bond for an amount exceeding by one-half the amount for which the decree was rendered in his favor.

The requirement of Art. 57, C. P., was met by giving two bonds. One appeal bond for the two amounts would not have been greater security.

Now with reference to the conditions of the bond. The erroneous substitution of “or” to. “and ” is not, in our judgment an error fatal to the appeal. It may be that the words “or” and “and” are not, strictly speaking, interchangeable, and yet in construing statutory enactments even in criminal cases they are sometimes used as convertible words. We will not stop to consider atlength the difference or similarity in meaning of these words. We are satisfied that the mere substitution of the word “ or ” in the condition of a bond under the jurisprudence of this court regarding the forms of bonds should be adjudged to have the effect for which plaintiffs contend.

In mattor of appeal bonds this court has adopted a liberal construction in order that principals and securities may be held bound as intended when the bonds were executed. That construction we are justifiable, we think, in following. Sedgwick on the Construction of Statutory Law, p. 871; Sutherland on the Construction of Statutory Law, p. 881.

The motion to dismiss the appeal is denied.

On the Merits.

The admissibility vel non of testimony offered by defendants to prove damages in support of their reconventional demand presents the first question for decision.

Plaintiffs objected to all of defendants’ testimony on the ground that their answer and demand in reconvention were too vague and general, in that a specified amount is not demanded for each item of damage to admit proof. The court overruled the exception.

We have reason to consider it the better practice to itemize the damages, but it is not always adhered to. This court has in repeated adjudications sanctioned pleading in suits for damages in which specific and separate amounts were not claimed for each particular and definite damages. In accordance with these decisions, in our view, it was permissible for the defendants to prove loss of credit and other injuries to their business, amounting they allege to a gross sum, covering each item of damages complained of.

This was the view clearly expressed in Hernsheim vs. Levy, 32 An. 340. It has since been adhered to in other decisions. Western Assurance Co. vs. Uhlhorn, 41 An. 885; Barthe vs. New Orleans, 42 An. 43; Randell vs. Railroad Co., 45 An. 778; Warner vs. Clark & Co., 45 An. 863; Lester vs. Corley, 45 An. 1006; Goldberg vs. Dobberton, 46 An. 1303; Armstrong vs. Railroad Co., 46 An. 1448.

We are not inclined to á change in a matter of pleading as well settled as this is.

DAMAGES.

There were no grounds for the attachment. This was settled by the decision of the court to which we have already alluded. ■ The nature and extent of the damages give rise to the questions for our determination.

Plaintiffs were actuated by a desire (excessive it may have been) to collect the amount due them by defendants and reconvenors. But we have not discovered, after an attentive consideration of the evidence, that they were prompted by a desire to injure the defendants.

They were greatly disappointed, more than the occasion warranted, by their failure to collect a draft for four hundred and eighty dollars, which they had accepted from one of the. defendants, endorsed by the other. Plaintiffs were not ordinarily prudent. They were careless in resorting to the harsh remedy of attachment in view of the facts, or they were too eager to collect the amount due them. One of the defendants was a successful business mao ; both conducted their business without having given occasion, reasonably, to any one to suspect them of fraud, in the management of their coinmercial affairs, with the view- of defeating creditors of their claims. It is true that one of these defendants was in embarrassed circumstances, and that a writ of attachment had been sued out against him. This was not cause in itself for suing out another writ of attachment, though it may be reason sufficient to lessen the amount of damages he claims.

This fact did nob give grounds sufficient for attaching the other who was prosperous enough, and had only failed to properly exert himself to have his paper honored at maturity. This may have been worthy of blame, but not a cause for suing out a writ of attachment.

The attachment here may well be designated as one which issued without cause. It is, to some extent at least, within the reach of the principles of Byrne vs. Gardner, 33 An. 6; McDaniel vs. Gardner, 34 An. 341, and other cases in pari materias where writs of attachment were issued.

Looking to the results, as testified to by the witnesses, it may be that the business credit of one of the defendants was injured to a small extent, although there is conflicting testimony on the point; as to the other we did not discover that he had any great degree of credit to be injured.

While we do not think that the grounds were sufficient to warrant a suit for attachment, we can not overlook the fact that the defendants made no attempt to minimize the damages. They allowed the attachment to remain undissolved some ten days and made no attempt to dissolve on bond.

The District Oourt was in • session and a motion to dissolve was heard and granted in that time. It appears that both defendants here could have executed required bonds to dissolve had they chosen so to do. It is true one is not bound to furnish bond to dissolve an attachment. But it affords a reason in our judgment to base the decree as relates to the amount only upon abundant proof. In selecting as relates to bonding, to let their property remain ire gremio legis, they, to some extent, at least, infringed upon the rule which requires that the one injured should reasonably seek to minimize the damages.

THE AMOUNT OP DAMAGES.

Plaintiffs are none the less liable to an amount in damages. The fact of itself that the attachment was dissolved as having been issued without sufficient cause, must be held as having the effect of establishing their claim to some damages.

Part of the damages .claimed are speculative, and are not, besides, supported by sufficient evidence. There is no proof, other than general assertions, of the daily gross revenues. They might have been large during the attachment, or small, even less than expenses. It is enough to say that with the evidence before us they can not be ascertained with certainty. It is fair to presume, from the evidence before us, that defendant would have realized some profit, not as much, however, as some of their witnesses seem to think. We have also considered the injury to credit charged, and other items of damages set up. Taking them and deciding them as a whole as pleaded, we conclude that three hundred dollars is an amount sufficient to one of the defendants, and one hundred dollars to the other.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be, and it is hereby amended, by reducing the amount of the judgment in favor of W. P. Hutchinson, from two thousand seven hundred and fifty dollars to three hundred dollars, and by reducing the amount of the judgment in favor of C. H. Bailey, from one thousand two hundred and fifty dollars to one hundred dollars.

As amended, the amount- of the judgment rendered upon the demand in reconvention is affirmed.

In every other respect the judgment is affirmed at appellee’s costs.