text:
    No. 10,173.
    State of Louisiana vs. George C. Wright.
    In criminal cases the cross-examination of a witness must be confined to the matters stated by him in his direct examination, or closely connected therewith.
    Where, in a prosecution for murder, it was proved that the accused went into the room where the killing occurred with a drawn pistol, he (the accused) may be asked when on the stand as a witness what his intention was at the time he entered the room.
    Where, upon the trial, there was testimony to the effect that the killing was accidental, the trial judge is not justified in refusing to charge the jury on the subject of accidental killing, and of negligence or non-negligence connected therewith upon the ground that he did not believe the evidence. State vs. Tucker, 38 Ann. 536, reaffirmed.
    APPEAL from the Criminal District Court, Parish of Orleans. Boman, J.

      M. J. Oimninglmm, Attorney General, for the State.
    On cross-examination a witness for the defense may be interrogated upon any question incidental to the facts and circumstances testified to on his direct examination. 35 Ann. 1015; 36 Amu. 573.

      W. L. Evans for Defendant and Appellant:
    A witness called by defendant was cross-examined on matternot connected with the matter stated in her direct examination; notwithstanding the timely objection of defendant’s counsel. This was error. State vs. Swayzie, 30 Ann. 1327.
    “A party, when examined as a witness, may be asked as to his motives or intentions, when these are material.” Whart, Cr. Ev., 8th Ed., § 431 and authorities there cited. Whart. Cr, Ev., § 456.

    “ It is the judge’s duty to charge the law applicable to any state of facts supported by evidence, whether he believes or attaches value to such evidence or not.” State vs. Tucker. 38 Ann. 540, 791.
    The sufficiency or insufficiency of the evidence is for the jury alone. State vs. White, 35 Ann. 97; State vs. Breckinbridge, 33 Ann. 312.
   The opinion of the Court was delivered by

Todd, J.

The defendant appeals from a sentence of ten years’ imprisonment at hard labor, imposed after conviction of manslaughter on an indictment for murder.

The grounds npon which he rests his appeal are presented by several bills of exception found in the record.

I.

The first exception was taken to the ruling of the court permitting the Attorney General to interrogate a witness for the defense, on his cross-examination, touching a matter about which he had not been asked nor testified in his direct examination.

We gather from the bill of exceptions and the reasons assigned by the trial judge the following facts connected with the ruling complained of.

The witness, Mrs- Dehan, had testified, on her direct examination, that on the day the homicide occurred she was employed as a servant at the house wherein the killing took place; that in the house there was a bar-room; in the rear of the bar-room a hall, and in the rear of the hall a dining-room.

■ That she was standing at the door leading from the hall into the bar-room; that she saw the deceased open that door, cross the hall, knock three times at the dining-room door, which was opened to him by his sister, the wife of the accused.

That harsh words passed between the deceased and his sister ¡ he abused her, and told her he had come for some pictures. That the accused, who was at breakfast, rose from his seat, asked the accused to be more guarded in his language towards his (accused’s) wife, and sharp words were then exchanged between them.

That the wife of the accused then said to the deceased, “ Stop that fuss and I will get the pictures.” That she left the dining-room and went up stairs, leaving the parties in the dining-roam. From there she passed into the yard, and on her return to the hall she saw the accused going to the bar-room with a pistol in his hand.

There the direct examination stopped. On the cross-examination she was asked, substantially, to state what occurred then in the barroom between the accused and the deceased — whether she heard the report of a pistol , and who fired it.

Thereupon counsel for the accused objected to the questions, his objection being (quoting):

“ That the State attorney has no right to cross-examine any witness for the defendant except as +o facts and circumstances connected with the matters stated in the direct examination.”

The objection was overruled and the answers of the witness admitted, for reasons assigned by the judge, to the effect that the questions and answers of the witness were closely connected with the facts stated on her direct examination, and, “ further, that the ends of justice would be subserved by allowing the witness to state fully all she knew in relation to the case.”

It is an elementary principle of the criminal law, and one often recognized in our jurisprudence, that a witness can only be cross-examined on the subject matter of his examination in chief, or on something closely connected therewith, or, as stated by G-reenlief:

“The rule is now considered by the Supreme Court of the United States, to be well established, that a party has no right to cross-examine any witness except as to facts and circumstances connected with the matters stated in his direct examination.”

This dictum, though not now applicable to civil cases, still rules in criminal cases. Roscoe, Crim. Ev. 173; Archibald, Crim. Pleadings, 157; State vs. Lacombe, 12 Ann. 196; State vs. Denis, 19 Ann. 119; State vs. Swayzie, 1323.

One of the reasons assigned by the trial judge for his ruling admitting the evidence was (quoting): “ That the ends of justóse could be best subserved by allowing the witness to state fully all she knew in relation to the case before us.” An apt reply to this is to be found in the decisions cited above, 19 Ann. 119, from which we quote:

“ The discretion which is claimed for courts to relax, to change or to utterly disregard the rules of criminal evidence which the Legislature has decreed obligatory, would effectually make the law a dead letter. Cases might occur wherein a relaxation of the rule might serve to advance the course of justice, but this is no reason why the general rules of evidence should not be observed, and until the law of evidence in criminal proceedings is changed, our courts are not justified in disregarding rules of evidence. It was well said by Lord Kenyon that Eules of evidence are of vast importance to all orders and degrees of men, and that our lives, our liberty and our property are concerned in support of them.”

The only remaining question on this point is whether the questions to the witness, allowed by the judge, are obnoxious to this rule — in other words, were they closely “ connected with the facts stated in the direct examination,” which is the test of their admissibility under the rule quoted.

We note that the witness in the direct examination testified exclusively to what occurred before the killing, in the hall and dining-room, to-wit:

That the deceased came from the bar-room into the hall, passed through the hall, knocked at the door of the dining-room, abused his sister, who opened the door for him, was remonstrated with by the accused, and after sharp words had passed, and after she had left the halla moment, and returned to it, saw the accused with a pistol going into the bar-room. Not a word was she asked as to what passed-in the bar-room, or about any conflict or struggle between the parties or about the firing of a pistol or anything, in short, about the killing.

The vital points in the prosecution were, of course, the fact of the killing and shooting, and the person who did it. These vital facts upon which the witness and the defendant’s attorney had been wholly silent, the State’s counsel attempted to prove by her — i. e., to establish the crime charged against the prisoner by the cross-examination of his own witness, who had not uttered a word about the commission of the deed. This was utterly unwarranted. It was giving a latitude to a cross-examination which the law does not tolerate.

II.

The accused, sworn as a witness in his own behalf, was asked “what his intention was at the time he entered the bar-room,” where the killing took place. ■

The question was objected to substantially on the ground that it was not competent for the accused to show his intention at that time, and that he had stated his intention, or the intention actuating him, at the moment the firing took place. The objection was sustained and the witness not permitted to answer.

It had been shown by the the testimony of a previous witness that the accused had mossed the hall and entered the door of the bai-room with a pistol in his hand. Of course, therefore, the inquiry as to intention actuating the accused when he entered that'room where the-shot was fired and the killing done, was a vital one. In truth, the intent is the very essence of the offense. Before an accused was made a competent witness, the intent was left to be inferred from acts committed and proved, but the intent — the actual intent — with which an act is done is no less a fact than the act itself, but he alone who commits it, knows and- can tell the intent with which it was committed. When an accused was made a competent witness his competency was as unrestricted as that of any other witness, and we know of no law or legal principle that would debar an accused from testifying to his intent or motive, where such intent or motive was material and altogether a proper subject of enquiry.

It frequently becomes important in criminal trials to ascertain the state of feeling — the partiality or prejudice of a witness — and the usual way of ascertaining this is by direct inquiry to the witness and his answer to such inquiry. This course is just as free from objection when applied to the accused as a witness. The judge, therefore, was in error in refusing to permit the question to be answered. Wharton, Crim. Ev., 8th Ed., Sec. 431.

III.

The counsel for the accused asked the court to give the jury several special charges concerning the right of self-defense. This the-court refused to do, one of the reasons for such refusal being that in bis written charge to the jury be had already charged the jury substantially to the same effect as asked in the special charges requested.

Prom an examination of the record we are satisfied the reason of the judge’s refusal to give the special charges requested was well founded.

IY.

Another charge was asked, couched in the words following:

A person who unintentionally and non-negligently, when doing a lawful act, kills another is to be acquitted.”

This is a correct enunciation of the law. Wharton on Homicide, Sec. 470.

The trial judge, however, refused to give it because it was inapplicable under the real facts of the case.

In the assigning of the reasons for his refusal to so change, he states that there was evidence adduced at the trial that the accused had not discharged the pistol at-the deceased, but that it had gone off by accident and unintentionally,” hut that he (judge) did not believe it.

If there was such evidence, and whether the judge believed it or not, under the rule laid down by the present court in the case of State vs. Tucker, 38 Ann. 536, 791, the refusal to give the charge was error.

These, conclusions reached upon the several questions above presented compelled us to remand the ease.

It is therefore ordered, adju’dged and decreed that the verdict of the jury and the sentence thoreon appealed from he annulled and set aside and the case he remanded to the lower court to he proceeded with according to law.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 10,146.
    Succession of Johanna Vollmer. On Petition for Nullity of Will, etc.
    Au act of adoption executed since 1872, before a notary public, by husband and wife, with the consent of the widowed mother of the child, is valid, though not authorized by judicial sanction.
    The Act of 1872, No. 31, providing for the manner of adopting children, dispenses with the judicial permission, previously, required by the Act of 1865, No. 48. A notarial act is the only act now required.^
    The recital, in a nuncupative will by public act, that the officiating witnesses are competent, does not satisfy the exigency of the law, which requires the statement in the act that they are residents of the place wherein the will is executed.
    The act must, on its face, make full proof of the facts constituting the competency of the witnesses in that respect, and show tho observance of all the essential formalities required to be fulfilled.

      The notary is not authorized to judge of the competency of the witnesses and dispense himself from stating the facts constituting that competency. He must state those facts and express in what manner the required formalities were fulfil led.
    The omission to declare those facts cannot be supplemented and renders the will invalid.
    Husbands and wives cannot prescribe against each other.
    APPEAL from the Civil District Court, Parish of Orleans. Houston, J.

      Jos. H. & J. Zach. Spearing for Tobias Vollmer, Defendant and Appellant:
    In order for a person to be legally adopted, it is necessary that tho authority of the court should first be obtained. The execution of an act of adoption before a notary without other formality does not constitute a legal adoption. Act Ho. 48 of X865: R. S., Secs. 2322 to 2328; Article 2X4 of R. C, C.; Succession of Hosser, 37 Ann. 840.
    A wife who renounces the community, loses all sort of right thereto. R. C. O. 24X1.
    Unless a divorced wife applies within ten days from the rendition of the judgment of divorce for an inventory of the community property and formally accepts the community within thirty days, she is presumed to have renounced the same. The presumption of law is against the wife accepting tho community, unless it affirmatively appears that she accepted the same. R. 0 . O. 2420, (2489), 25X9, (2388); Herman vs. Theurer, XX Ann. 70 to 72; Audrich vs. Lamothe, X2 Ann. 77; Succession of Ewing vs. Altmeyer, X5 Ann. 416.
    A judgment of divorce dissolves the community then existing, and a subsequent marriage of the divorced spouses creates a new community and is not a continuation of the community which was dissolved by the judgment of divorce.
    The declaration of the notary in a will by public act that the will was executed, etc., in the presence of A, B and C, “ competent witnesses,” is a compliance with the law, and such a testament will not be annulled because the notary failed also to state that the said “competent witnesses resided in tho parish.” State vs. Martin, 2 Ann. 715; Sterlin vs. Gros, 5 L. 105; Chardon’s Heirs vs. Bongue, 9* L. 458, 468; Thibodeaux vs. Voorliies, 25 Ann. 480.

      Braughn, Buck, Binkelspiel & Hart for Plaintiff and Appellee.
    Ho syllabus, but quoted the following authorities: Buddig vs. Baldwin. 38 Ann. 395; Iiilienthal vs. Succession of Hosser, 35 Ann. 839 ; LeBlanc vs. Burras, 16 L. 80, and Swift vs. Swift, 9 Ann. 118.
   The opinion of the Court was delivered by

Bermudez, C. J.

The object of this suit is to recover the entirety of the Succession of the deceased.

To that end, the plaintiff alleges that she was legally adopted by the deceased and her husband, Tobias Vollmer, and thus acquired all the rights vested by law in legitimate descendants; that Johanna Vollmer has departed this life, without issue, or forced heirs, leaving a will by public act, by which she institutes her husband her universal legatee; that said will is a nullity, in not stating that the officiating witnesses are residents of the place; that she is consequently entitled to all the property of which Johanna Vollmer.died possessed.

The defenses are: That the plaintiff has no stain ding in court in this, that the act whereby she claims to have been adopted, is a nullity, for the reason that it was executed without judicial authority, which was an essential condition precedent; that the will is valid, as it recites that tire witnesses to it are competent and that the plaintiff has no greater rights than the deceased, through whom she claims, and who had forfeited all claims against the community, for reasons which it is needless to state.

Prom an adverse judgment, Tobias Yollmer appeals.

It appears that on August 11th, 1875, by authentic act, Tobias Voilmer and Johanna Brestinchiner, his wife, adopted Magaret Ann Kelly, born on July 15, 1867, conferring expressly upon her, all the rights of a legitimate child in their respective successions, subject to the rights of forced heirs, and that the mother of the child, Widow Michael Kelly, consented.

The act does not recite that judicial authority was previously obtained for its execution, and hence, it is charged, that the failure to have procured the permission is destructive of the adoption.

I.

The question therefore arises: Was this omission fatal to the validity of the act; or, in other words, has the Act of 1865, No. 48, which stipulated that such authorization should be obtained, been or not repealed in that respect.

Several acts were subsequently passed on the subject of adoption, before and after the Revised Code, which itself contains legislation on the matter.

The Act of 1865 was expressly amended by Act 17 of 1867, which provides that persons’ having legitimate children may adopt any other child, provided the adoption shall not interfere with the rights of the forced heirs.

It was again expressly amended by Act 64 of 1868, to confer exclusive jurisdiction on parish courts outside of the parish of Orleans and to authorize, when the person adopted is a minor, the surrender of the entire paternal authority to the adoptor.

This act of 1865, with its amendments, was incorporated in the Revised Statutes as Sections 2323 to 2328, both inclusive.

The Revised Code contains supplemental provisions. R. C. C. 214,

It prohibits the adoption of illegitimate children, whose acknowledgment it forbids; such adoption not to interfere with the rights of forced heirs.

It provides, that the person adopting shall be at least forty years of age, and at least fifteen years older than the person adopted.

It confers on the person adopted all the rights of a legitimate child in the estate of the person adopting him, except as above stated.

It requires the concurrence of married persons to adopt a child, saying that one cannot adopt without the consent of the other.

Id 1872, by Act No. 81, it was provided, that any person above the age of twenty-one years shall have the right, by act to be passed before any parish recorder or notary public, to adopt any child under the age of twenty-one, provided that, if such child have a parent, or parents, or tutor, the concurrence of such shall be obtained, who, and as evidence, shall be required to sign the act.

It is apparent, from an inspection of those various laws that, at the date of the last act, there must have existed some confusion in the mind, touching th® forms to be followed in cases of adoption, and it must have been for the purpose of dispelling all doubt on the subject that the Legislature passed the just mentioned act.

That act surely had some object in view, otherwise it would not have been passed.

It evidently contemplated a change of the provisions in the Revised Code, Art. 214, in this, that it does away with the conditions that the adopting person should be at least forty years of age and fifteen years older than the adopted one, by providing that any person above twenty-one years may adopt any one under that age.

It further contemplated some legislation on the subject of consent, to be given by the parents, parent, or tutor of the minor to be adopted.

That act consists of one section only, and does not contain any repealing clause of anterior laws, in conflict with it, or on the same subject matter.

• The absence of such clause is easily accounted for. The Legislature did not intend to modify anterior laws on adoption in all respects. It proposed to leave intact all that portion of the legislation concerning the substance, such as the rights of the adopted persons and the qualifications of the adoptors, except as the question of age, and designed, beyond this, to simplify the matters of form to be gone through, by requiring merely a notarial act and dispensing with the judicial sanction previously exacted, as indispensable.

The Constitution of 1868 required that the object or objects of an act should be expressed in its title.

Hence it is natural enough, in order to ascertain what the object of the act of 1872 was, to consider its title, which is “ An act providing for the manner of adopting children.;”

The word “ manner ” is ciearly demonstrative that the purpose of the law was to provide for the form to he used for the adoption of minors.

It is then apparent that, as the act does not allude to the judicial authority previously demanded, that ceremony was abandoned and suppressed, and another one, plainer and less expensive, was substituted -to it.

In the case presented in the Succession of Hosser, 37 Ann. 840, there was no issue as to the form of the act. It was passed in 1866, in the year following the act of 1865, which required judicial sanction. If obtained since 1872, judicial authority would be surplusage.

The act of adoption levelled against here must, therefore, stand.

II.

The second question presented relates to the validity of the will, which is in the nuncupative form by public act.

The charge against it, is, that it does not set forth that the three witnesses are residents of the parish of Orleans, but that they are competent witnesses.

The omission is fatal. The notary is requiied by law, under pain of nullity of the act, to express specifically every material fact consti-tuting the competency of himself and of the officiating witnesses under the law, in that respect, and also every formality observed in the execution of the will. The act must make full proof on its face of every element necessary to its validity, as no evidence is admissible to supply any deficiency. The notary is not constituted a judge of the legal fulfillment of these formalities, otherwise it would suffice for him to state that the will was executed after observance of all legal exigencies, but this would be a plain violation of the law. R. C. C. 1578, 1595; Leblanc vs. Burras, 16 L. 80; Swift vs. Swift, 9 Ann. 118; Shannon vs. Shannon, 16 Ann. 9; Succession of Whittington, 26 Ann. 89; Succession of Carroll, 28 Ann. 388; Devoll vs. Balms, 20 Ann. 203; Succession of Wilkin, 21 Ann. 115; Thibodeaux vs. Voorhies, 25 Ann. 480; Laurent 23, p. 262; Duranton 9, 112; Merlin Tem. Instr.; Toullier 5, p. 451.

The will being deficient in an essential particular, is a nullity and must be so regarded and treated.

HI.

The plaintiff having established that she was legally adopted by Mrs. Yollmer, and that the will left by her is a nullity, it follóws that she has inherited all the property which she died owning, as completely as if born of her body. 37 Ann. 840.

. IV.

QnestioD s have been raised antagonistical to the rights of the deceased in the community which existed between her and her husband, to the effect ‘’that she did not, within the time fixed by law (thirty or sixty days), accept that community, and that, by such failure, she has forfeited all claims to what might have been her share therein, otherwise.

It appears that Tobias Vollmer and Johanna Brestinchiner (the deceased) first contracted marriage'in December, 1858 ; that they were subsequently divorced, June 10, 1885; and that shortly afterwards, in July following, but within thirty days, they married again, the wife dying some time later, without having, before her second marriage, accepted the community.

We deem it unnecessary to pass upon those questions to any considerable extent.

It suffices to say that the second marriage, having been contracted within the time during -which, it is claimed, that the community should have been accepted, after the judgment of divorce, it has suspended all prescription, as, husbands and wifes cannot prescribe against eacli other. R. C. C. 3523.

Judgment affirmed.


author: Todd, J.

text:
    No. 10,182.
    State ex rel. W. I. O’Donnell vs. Hon. A. L. Tissot and W. T. Houston, Judges Civil District Court.
    The Constitution of the State makes each house of the General Assembly the sole judge of the qualifications, election and return of its members. Consequently, the district courts are without jurisdiction to determine contested elections touching the right to seats or membership in tho Legislature.
    Nor have they the power to take the depositions of witnesses relating to such contest, nor the authority to cause the ballot-boxes to be produced in court and the seals placed thereon by the commissioners of election, to remove the boxes and have the ballots recounted.
    Judges can exercise other than s rictly judicial powers. They cannot combine with such powers those that properly pertain only to the duties of a commissioner to examine witnesses and take in writing their depositions for the purpose of forwarding them to another tribunal.

      APPLICATION for Certiorari and Prohibition.

      Aug. JBernan for Relator :
    Cited fbe following authorities. Art. 23 Conet. 1879 ; 31 Ann. 122, Redon vs. Spearing; Barbin vs. Secretary of State, 32 Ann. 579; Art. 92 Const. 1879; Elliott vs. Peeraol, 1 Peters, 341; United States vs. Terrena., 13 Howard, 40; McCrary on Eleotions, 257, 382, 383.

      A. Goldtlvwaite for Respondents :
    Cited tbe following authorities : R. S. Secs. 1385, 1431, 1432, 1433 and 1434; State ex rel. Eord vs, Miltenberger, 33 Ann. 2G6; Act 57 of 1877, and Art. 440, C. P.
   The opinion of the Court was delivered by

Todd, J.

This is an application for writs of certiorari and prohibition.

The relator represents, substantially :

That he'was a candidate at the recent election for the Legislature (House of Representatives) from the Third Ward of the city of New Orleans, on the regular Democratic ticket, and was elected over his opponents,' Otto Helman, William Mehle and Charles B. Wilson, the two first-named the candidates of the “ Young Men’s Democratic Association,” and the latter on the Republican ticket.

That he was declared elected by the commissioners of election and returns to the election promulgated by the returning officer showed his election.

That the said defeated candidates have filed petitions in the Civil District Court contesting relator’s election. That the suits of Mehle and Wilson were allotted to Division B of said court and of Helman to Division A.

That the-said contestants admit the election of relator in the face of the returns, but insist that a recount of the votes would show a different result; that they have cited relator into said court and have asked that the returns, showing relator’s election, be revoked, and that they (contestants) be declared elected.

The relator further avers that he filed a plea to the jurisdiction of the court or its power to entertaiu said suits, but the respondent judges overruled the plea, have takén jurisdiction, have appointed a day for taking testimony in the suits, have issued subpeenas duces tecum., commanding the clerk of the Criminal District Court, the custodian of the ballot-boxes, to produce the boxes, returns, tally-sheets, etc., in open court, and that it is the intention to break the seals placed on said ballot-boxes by the commissioners of election, to have the ballots again counted by those not authorized to do so. It was charged that such action on the part of the judges was arbitraryj and involved usurpation of authority, and was in contravention of the Constitution and laws of the State.

The respondent judges, in their answer, whilst admitting that the exclusive power is vested in the General Assembly to judge of the qualifications, election and returns of its members, allege that these proceedings before them do not infringe upon this legislative prerogative, that it is a proceeding such as is known as a proceeding to perpetuate testimony and to assist the Legislature to dispose of these election contests more speedily, and that it is not their purpose to interfere with the custody of the ballot-boxes.

Article 23 of the present State Constitution provides that “each House shall judge of the qualifications, election and return of its own members.”

In the face of this provision it requires no argument to show that the courts have no power to judge or determine with regard to these essentials.

That is, that it is manifest that in so far as the judges have been asked by these contestants to determine the contests and annul the returns already made in favor of relator, and declare the contestants duly and legally elected, they have not the shadow of authority to do so.

Therefore, that part of the petition of these contestants that invokes the exercise of judicial authority in these respects must be eliminated from the controversy. The respondents do not, in fact, claim such power; but, as intimated before, they seem to limit their authority to the production of the ballot-boxes, the removal of the seals therefrom, the recounting of the ballots, and the examination of witnesses for the purpose of assisting the Legislature in the final determination of these contests ; and we do not understand the counsel of the contestants, in their oral and written arguments before this Court, to claim more than this.

But have these judges authority to go even this far? In these contested election suits instituted and pending before them, does their power and jurisdiction extend over any matter pertaining to such suits, such, for instance, as is claimed, of compelling the custodian of the ballot-boxes to bring the boxes into court ¡ to have seals, placed thereon by prescribed authority, removed, the boxes opened, and the ballots manipulated and counted by persons other than the law has designated and depositions taken with respect to these matters ? That is the question we have to determine.

The provision, quoted from the present Constitution, “that each House shall judge of the qualifications, election and returns of its members,” appears in every State Constitution that precedes the present one. But in these preceding Constitutions this provision is followed by the words (quoting) : “ but a contested election shall be determined in such manner as shall be described by law.”

The suppression of these words in the present Constitution is not without meaning and significance. What is the inference to be drawn from it?

Evidently, it was to give emphasis to the declaration that each House was to judge of the qualifications, election and returns of its members by stripping it of any restriction or condition that could limit its scope or impair its full force, and to make each House, in truth and in fact, in all cases and under all' circumstances, the judge and the sole judge of all matters pertaining to the election of its members.

Those qualifying words found in the previous Constitutions were the sole warrants for contests before the courts relating to elections for members of the General Assembly.

In 1814 an act was passed, the provisions of which are embodied in Sections 1431, 1432 and 1433 of the Revised Statutes, which authorized pleadings before the courts, inaugurating, as it were, contests to be subsequently conducted and determined by the Legislature, and providing for the taking of depositions of witnesses, to be used in such contests, etc. It is under these provisions, and also under a proviso in See. 1386, it is to be presumed, that this proceeding before us for review was instituted. It was legislation that could not be deemed objectionable under the former Constitutions, but, on the contrary, might be construed as necessary to a strict conformity with the provision referred to, looking to contested elections relating to membership in the General Assembly.

But these provisions, and none others that we can find, confer power or authority on the judges to determine the contests and adjudge and declare the result of the elections contested. Nor is such power claimed by the judges in the instant case, as we have seen from their answers, although formally invoked by the contestants. The only law cited by counsel for contestants that would seemingly authorize such contests before the courts and give power to the judges to determine them, is the proviso in Sec. 1386, R. S., quoted by the counsel in his brief, and which, in our opinion, has no reference to contests for the Legislature, but exclusively relates to contested elections for other State offices.

If, then, as it seems plain and even conceded by all parties, there is no power or jurisdiction in the courts to judge and decide these contests, but the duties of the judges in such cases as the one before us is to be directed and confined to the taking of depositions, or, as the judges themselves term it, a proceeding simply looking to the perpetuation of evidence, what will be the character of the functions they are to exercise in this instance? Evidently, not judicial. This has been expressly decided. Redon vs. Spearing, 31 Ann. 122; United States vs. Ferreira, 13 Howard, 40; Elliott vs. Piersal, 1st Peters, 341.

If the services or acts in question are not judicial, such as do not strictly belong to their office or duties as judges, then, in rendering the service required, they could be viewed in no other light than simply as commissioners. See same authorities. But under Act 92 of the present Constitution, judges are forbidden from exercising any functions but such as are strictly judicial.

In the face of this prohibition, their contemplated acts, even in the respected sense in which they are viewed by themselves, are in contravention of the Constitution, and are, therefore, void.

We hold, also, that the law invoked as justifying this proceeding is absolute, in view of the Constitution, as it now stands unfettered by any restrictive condition touching the power expressly conferred on the Legislature to judge of the election of its members.

Entertaining these views, we conclude that the acts and proceedings of the respondent judges complained of by the relator are unwarranted and illegal, and that the same should be annulled and set aside, and the prohibition he made peremptory.


author: Bermudez, C. J. Poché, J.

text:
    No. 10,142.
    Nellie Folger et al. vs. Henry Roos.
    A decree for executory process is not a judgment in the strict sense of the term. It decides nothing, but may be appealed from.
    It is an expw'te order which may be rendered at chambers as well during vacation as during term time.
    Act BTo. 86 of 1866 was not designed to prohibit the granting of such orders. It proxiosed to continue in the courts the power of hearing and determiniog contradictorily, during vacation, motions to quash conservatory and other writs on the face of papers and not on the merits and suits to eject tenants.

      Act 86 of 1866, -which purported to enlarge ihe powers of thecourts of New Orleans, as then composed, so as to authorize the hearing, during vacation, of motions to quash certain writs and orders, which are issued ex parte, has no reference to orders of seizure and sale, which are regulated exclusively by Art. 63 and Articles 732, et seq. of the Code of Practice.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      W. W. Handlin for Plaintiff and Appellant.

      Jas. McConnell for Defendant and Appellee.
   The opinion of che Court was delivered by

Bermudez, C. J.

This is a petitory action by the widow and heirs of Antonio Palacio to be recognized as the owners of certain real estate and allowed the rents and revenues thereof from December 26, 1879, when, it is charged, the defendant took wrongful possession.

The main defense is, that the property was acquired by the defendant at a judicial sale, made on that day, which divested Antonio Palacio and passed his title to the defendant.

The plaintiff retorting, charges that the sale in question is a nullity, having been made in furtherance of an order for executory process, signed on September 4, 1879, by the judge of a district court, in New Orleans, during vacation, when, under the law, no such order could have been then validly granted.

The District Court heard the evidence adduced by the litigants in support of their conflicting claims and dismissed the suit. Prom this judgment the plaintiff appeals.

In order to establish that the decree for executory process could not have been signed during vacation and so is a nullify. The plaintiff relies on Act No. 86 of 1866 and on the rulings made in 21 Ann. 306 and in 23 Ann. 483.

The act declares that the district courts of New Orleans shall be open from the first Monday of November to the fourth of July, ant shall remain open all the year for criminal and probate causes, for granting interlocutory orders and writs of arrest, habeas corpus, injunctions, sequestrations, attachments, mandamus and provisional seizures on motions to quash and not in their merits, and for proceedings to eject tenants.

The rulings in the two cases relied on are to the effect that the signing of a judgment is a judicial act and cannot validly take place without the consent of parties out of term time — i. e., during vacation.

The judgments thus signed were judgments rendered after a contradictory trial.

A decree for executory process is not a judgment in any sense of the word, within the meaning of the authorities cited, for it decides nothing, no more than an order for a conservatory writ of any description. It has been held to be a judgment only, so far that an appeal lies from it in a proper case.

It is known to both the Spanish and French systems. See Escriche, Diccionario de legis lacion y jurisprudencia, pp. 770, 819, 899, 979, and Merlin vol. execution parée.

In the case of Mitchell vs. Logan, 34 Ann. 998 (1003), we took pains to show that it lacks the elements of an ordinary judgment, saying substantially:

It is not preceded by a citation; it is rendered on no issue; it adjudicates to plaintiff no right not secured by his notarial act; itcreates no judicial mortgage by registry; it authorizes no writ for the differences in case of deficiencies between the net proceeds of the sale of the mortgaged property and the amount of the debt.

Numerous authorities were quoted in support of those views, one which is to the effect that an executory proceeding is not properly a suit, but merely the aid of judicial power to give force and effect to, what is equivalent to a judgment confessed. Rousseau vs. Bourgeois, 28 Ann. 186.

It is therefore strictly no judgment. It is simply an ex parte order m rein, granted at chambers, without any previous hearing, or notice to the ostensible owner of the property, directed to be seized and sold, to satisfy the debt acknowledged in the authentic form,

In the case of Russ vs. Faust, 15 Ann. 477, the court declared that the uniform practice is to issue executory process, or decrees rendered and signed at chambers.

The learned, counsel for the plaintiffs concedes such to be the practice and the jurisprudence; but he distinguishes, saying, that the practice is legal when the decrees are rendered and signed at chambers, provided this is done in term time, and that such decrees cannot be thus made, out of term, during vacation, because of the provisions of the act of 1866, No. 86, which does not specify that such decrees may be granted between the day of the adjournment and that of the reopening of a New Orleans district court, and which enumerates what judicial proceedings may take place contradictorily during vacation.

This is a fallacy resulting from a confusion of ideas touching the purport of the act relied ou and from a too narrow conception of its meaning and object.

The purpose in view was to enable litigants to try contradictorily with adverse parties, during vacation, motions to quash, on the face of the papers, and not on their merits and suits to eject tenants, which otherwise could not have been then entertained; but the act never was intended to abridge the rights of parties to any ex parte or interlocutory decrees to which they would have been entitled during term, time.

Articles 63, C. P., has an immediate bearing on the subject.

It provides that where the hypothecated property is in the hand of the debtor, and when the creditors, besides his hypothecary right, has against his debtor, a title importing a confession of judgment, he shall be entitled to have the hypothecated property seized immediately and sold for the payment of the debt, etc.

The word immediately was not inserted in the law for a useless purpose. It means instantly, without delay, at any time, whether within or without term, and must receive its effect.

The Code of Practice calls the fiat in cases of executory process an “ order of seizure.” C. P. 735.

Ear from shutting out the defendant from adequate relief, when the claim or mortgage cannot be enforced, the law leaves to the debtor a door wide open to urge, after the order has been rendered, defenses which he might have pressed in ordinary cases,.only before judgment.

This identical question of the' validity of an order for executory process made during vacation, was raised some sixteen years ago and was very summarily treated by the then Court.

See Thompson vs. Storrs, No. 2545, unreported, and found in O. B. 42, fol. 81, decided December 16, 1872.

In that case, the very authorities relied on (21 and 23 Ann.) were declared to be wholly inapplicable.

The order attacked having been seasonably made, the objection to its validity falls.

This conclusion is in perfect consonance with the spirit and letter-of the law and the practice and is eminently conservative.

Construing the judgment of dismissal rendered below, as one rejecting plaintiffs’ demand.

It is affirmed with costs.

On Application por Rehearing.

Poché, J.

Plaintiffs’ counsel makes an earnest effort to induce us to reconsider our opinion in this case.

The confusion in Ids mind evidently arises from a misapprehension of the true meaning of the statute under which he has rested his case.

According to his construction, the law is read to mean, that in the absence of that legislation, the district courts for the city of New Orleans were at that time powerless to issue, in vacation, any writs of arrest, habeas corpus, injunction, sequestration, attachment, mandamus and provisional seizure, and hence he argues that the omission of the law-maker to include orders of seizure and sale in the enumeration of the orders or writs which those courts were authorized to grant during vacation, must be construed as a legislative intent to prohibit the issuance of such orders, at any time between the fourth of July and the first Monday of November.

But such is not the purport of the law. It nowhere appears, either in the title or the body of the statute, that the Legislature thereby intended to amend or otherwise alter the articles of the Code of Practice which treat of the manner of issuing the various writs and orders hereinabove enumerated, and under which such writs have always been issued by all the courts in this State, including those of the city of New Orleans, in chambers and out of term time, from the very beginning of our judicial history.

The statute reads as follows: “The courts shall be opened from the first Monday of November to the fourth day of July, and for criminal and probate causes, for granting interlocutory orders and writs of arrest, habeas corpus, injunctions, sequestrations, attachments, mandamus and provisional seizures, on a motion to quash, and not upon their merits, they shall remain open the whole year.” * * [Italics ours.]

Its title is “An act to amend an act entitled ‘An act relative to district courts for the parish and city of New Orleans, approved March 29, 1865.’ ”

By reference to the latter act, it appears that the only amendment which was proposed by the amending act was to add to the orders enumerated the two writs of attachment and mandamus, and the power of trying proceedings instituted by a landlord for the possession of leased property, which features were not contained in the amended act, and also to shorten the session of the courts.

The manifest purpose of the legislation, as evidenced by both acts, was not to restrict, but, on the contrary, to enlarge, the powers of the courts referred to. Under the rules of the Code of Practice, as uniformly construed in jurisprudence, it is clear that all the conservatory writs enumerated in the apt were issued ex parte at chambers and at any time of the year. Hence the act could not purport to grant a power already in legal existence and which had been exercised for more than half a century. But, without special legislative authority, the courts of New Orleans were without power to try and dispose, in. vacation, of a motion to quash any of the writs enumerated, which they might have granted during such vacation.

The ends of justice required that the defendant, under any of said writs, which might have been wrongfully issued, shall be empowered to submit the question to judicial test, without, the hardship of waiting until November following.

The sole object of the legislation under consideration was to remedy that evil, and under it the courts were authorized to hold sessions, in order to hear such writs on a motion■ to quash, and not upon their merits. Such is the true meaning of that statute, and it follows that it can have no possible reference to orders of seizure and sale, which are regulated exclusively by Arts. 63 and 732, et seq., of the Code of Practice. They aie, essentially, exparte orders, which are admittedly issued at Chambers, and unquestionably in or out of term time. Cumming vs. Archinard, 1 Ann. 279.

We, therefore, conclude that we bad committed no error in our previous opinion.

Rehearing refused.


text:
    No. 10,189.
    State ex rel. J. A. Shakespeare, Mayor, et al. vs. Judge Civil District Court, Division E.
    An application for a prohibition, asked to issue to a court which, is charged with usurpation of jurisdiction, or exceeding its powers, will not be entertained unless an exception has been made to its jurisdiction and lias been overruled.

      Mandamus does not lie to compel a suspensive appeal from an order in limine, granting an injunction, unless after exhaustion of adequate means to dissolvo and the act enjoined, if committed, would cause irreparable injury.

      APPLICATION for Prohibition and Mandamus.

      Oarleton Hunt, City Attorney, for the Relator :
    Cites tlio following authorities: Art. C. P. 846; State ex rel. Logan vs. Third District Court of NewOrlean, 16 Ann. 186; State ex rel. Michaud vs. Judge JTourtli District Court, 20 Ann. 239; Actl8ofl886, State ex rel. Walker vs. Judge, 39 Ann. 136; Livessey’s case, 34 Ann. 741; 39 Ann. 540 ; R, R. Co. vs. Mayor and Council, 39 Ann. 13"1 ; Marrero vs. Barker, 23 Ann. 302; Al’t. 566, C. P.; 14 Ann. 5i); 16 Ann. 396 ; Brotlssard vs. Judge, 39 Ann. 225.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a prohibition and for a mandamus, coupled with a prayer for a certiorari, for the transmissior to this Court of the proceedings below.

The complaint is that the district judge has usurped jurisdiction in issuing against the relator and his executive subordinates an injunction to prevent him from executing Act No. 18 of 1886, known as the “Sunday law,” at a public entertainment proposed to be had on Sunday, the 20th of May, instant, at the “ Fair 6rounds,” in this city; that relator moved to set the injunction aside on the ground that the court had no jurisdiction ratione materice to entertain the application on which the writ was allowed; that said motion was denied hearing, and the injunction remains in full force and effect.

The relator further charges that he applied for a suspensive appeal from the order of injunction, and that the same was denied.

Hence, the relator prays that the district judge be prohibited from taking cognizance of the case, and in the alternative, that a mandamus issue to him to grant the appeal asked.

The district judge makes return to justify his action in the premises.

It appears that, before granting the injunction complained of, the district judge caused a rule to be taken, by the parties asking it, on the defendants in the case, the Mayor et als., to show cause why the injunction should not be granted; that the Mayor made a written answer, in which it is not charged that the court had no jurisdiction ; that after hearing, the court, for reasons assigned, granted the order prayed for, and that under it the writ issued.

It also appears after this was done, the defendant took a rule to dissolve the injunction on the ground of want of jurisdiction ratione materice, asking that the matter be submitted and determined at once.

The district judge declined taking immediate action, and made the rule returnable on the 13th, three days after the application for relief, now under consideration, had been filed here.

When the present application was argued and submitted, the objection to the jurisdiction had not been acted upon. It is established by the jurisprudence of this Court that no application for a prohibition can be entertained until after a plea to the jurisdiction of the lower conrt has been urged and overruled.

The cases in which this has been held are so numerous that it would be cumbersome to enumerate them all. V. 29 Ann. 306; 37 Ann. 845; 38 Ann. 569, 920.

I.

Tlie next question to be considered is : Whether a mandamus lies to compel a judge to grant a suspensive appeal from an order made by him in limine directing the writ to issue.

There is no doubt that such appeal lies, iu au appealable case, from any interlocutory «decree therein rendered, the execution of which may cause the party affected thereby an irreparable injury; bnt we were not informed of any case in which it has been held that an order in limine, granting an injunction, belongs to that class of decrees. On the contrary, it has been pointedly held that the suspensive appeal will not lie directly from such an order, at least, without clear showing that such decree must of itself work an irreparable injury. State ex rel. Doullut vs. Judge, 29 Ann. 869.

It must be admitted that an appeal on the merits of the case would afford no adequate remedy, as the controversy can be decided only after the 20th of May shall have passed; but it is apparent that the complainant has not exhausted bis opportunities for prompter relief in the lower court.-

He was entitled to move for the dissolution of the injunction, and be has actually made a motion to that effect which was pending and undetermined in the lower court when he applied for relief here.

Won constat that the district judge has not, or will not, on hearing, dissolve the injunction, and thus leave relator without any ground of complaint.

We cannot, under such circumstances, listen to the premature appeal to our supervisory jurisdiction.

It is, therefore, ordered and decreed that the application herein be dismissed, with costs.


author: Poché, J. Bermudez, C. J.

text:
    No. 10,068.
    John Pasley vs. Ann McConnell.—Ann McConnell vs. John Pasley.
    (Cumulated.)
    Inaccuracies in a motion of appeal, in the bond and in the certificate of the clerk, amounting at most to clerical errors, are not sufficient to justify the dismissal of an appeal, if the proceedings are otherwise sufficient to identify the appeal with the judgment complained of, with legal certainty.
    The rights of litigants cannot be jeopardized by «slight inaccuracies of their counsel, or by the incompetency of clerks.

      In furtherance of the ends of justice, a case will he remanded to enable a plaintiff to amend so as to set forth more explicitly his cause of action.
    A judgment in a case in which a cause of action was not set forth, because it had then no existence, cannot constitute res judicata*

    APPEAL from the Civil District Court, Parish of Orleans. Voorhies J.

      W. 8. Benedict, E. O. Cage and B. B. H. Chaffe for Plaintiff and Appellant.

      J. Timomj and J. Magoni for Defendant and Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

The grounds of the motion will he better understood by a reference to the proceedings which preceded and led up to the judgment appealed from.

Pending a devolutive appeal to this Court from a large moneyed judgment rendered against the defendant in the suit entitled “ Ann McConnell vs. John Pasley,” execution was issued, and the plaintiff in suit became the adjudicatee of considerable property seized in said execution. On trial of the appeal, the final judgment of this Court reduced very materially the amount of the judgment appealed from, in fact to a sum less than one-half of the price of adjudication of the property of the seized debtor to the seizing creditor.

John Pasley then brought a suit for the nullity of the sale in execution of his property as hereinabove stated, but he was defeated. 38 Ann. 470.

He then had recourse to another action, with the object of enjoining Mrs. McConnell as purchaser, and her transferees, of the property in question, from interfering with said property, which he therein claimed as his own, and from taking possession thereof.

This is the suit hereinabove, entitled “John Pasley vs. Aun McConnell,” No. 18,001, Division “ B,” to which it had been allotted as an original suit.

In that court, the cause was on an exception to the jurisdiction of the court, transferred to Division “ C,” where the original suit was pending, and of which the present action was held to have been an incident; a proceeding to regulate the execution of the judgment. Tn the latter court it was cumulated with the original suit, and it was dismissed on an exception of res adjudieata.

The present appeal was taken from that judgment.

I.

In drawing their motion of appeal, counsel for appellant headed it with the title of the suit entitled and numbered,John Pasley vs. Ann McConnell, No. 18,001,” only; and that incident furnished the first ground of appellee’s motion to dismiss.

It would unquestionably have been safer and more regular for counsel to have adopted the identical title which headed the judgment appealed from, and which heads the opinion; but that irregularity is not sufficient to vitiate the motion or the order of appeal, as both leave no doubt as to the precise judgment from which the appeal was intended.

Both titles appear defective and illogical. Either the new proceeding was a part or an incident of the main or original suit, or it was an independent original action. If the former, then the new title should have been dropped or merged in the original suit; if the latter, then the cumulation, as it is called, was erroneous. But neither error could in justice be attributed to appellant.

His motion conveys all the information necessary to identify his appeal with the judgment complained of.

II.

Prom appellant’s petition it appears that there were several defendants in his proceeding, and henoe in some parts of the record his action is entitled "John Pasley vs. Ann McConnell et als.," whereas, in his motion, he omitted the words et ah. That is the subject of the second ground of the motion to dismiss, whence it is argued that all the defendants have not been cited.

But the motion was made in open court, and therefore no citation was needed; and all parties to the proceeding, who were not appellants, became appellees, if there was an appeal at all; and we have already shown that the motion was substantially sufficient to bring up • the appeal. It cannot be destroyed by a clerical error.

III.

It is next contended that the appeal bond is radically defective, because it recites that the appeal is taken from the judgment in the suit of John Pasley vs. Ann McConnell, No. 2452, an entirely different suit from that described in the motion and in the order of appeal.

In this assertion appellees are mistaken ; the recital is as follows : Whereas, the above bounden John Pasley has this day filed a motion of appeal from a final judgment rendered against Mm, in the suit of John Pasley vs. Ann McConnell et als., No. 2452, Civil District Court, cumulated with No. 18,001 of the Civil District Court, for the parish of Orleans, on the 30th day of May, 1887, and signed on the 3d day of June, 1887.”

Hence it appears that the only error of the recital consists in transposing the numbers of the two proceedings. But otherwise the bond is fully identified with the motion of appeal and with the judgment appealed from. The irregularity is not of such gravity as to defeat appellees in an action on the bond.

IV.

The fourth and last ground of the motion rests on a complaint levelled at the clerk’s certificate, in which he erroneously makes “John McConnell defendant in the suit in which “Ann McConnell!’ is plaintiff; but the certificate recites that the transcript refers to a judgment rendered in matters numbered respectively Nos. 18,001 and 2452.

That is sufficient to show that there was merely a clerical error in one of the titles, especially as one of the suits is correctly described. The whole record is a bungle, in which one error is engrafted on another, but none sufficient to justify the dismissal of the appeal. Courts can and must deplore such careless and inartistic work emanating from officers whose labors should be characterized by neatness and precision, but they are forbidden by a sense of justice to deny the rights of an appellant, on account of the inaccuracies of his counsel, or of the unpardonable negligence or ignorance of a ministerial officer. Eschert vs. Harrison, 29 Ann. 860; Granger vs. Reid, 36 Ann. 845.

It is, therefore, ordered that the motion to dismiss this appeal be overruled at the costs of appellees.

Todd, J., absent.

On the Merits.

Bermudez, C. J.

The only question to be decided in this controversy is, whether the adjudication made by the sheriff to Mrs. McConnell of certain property in the name of John, Pasley, in 1883, shall or not be rescinded, on account of non-payment of the price, $9500.

Mrs. McConnell contends that John Pasley’s petition discloses no' cause of action, and that his right to ask the nullity of the sale, was finally adjudicated upon adversely to him, and that the matter is forever finally set at rest.

From a judgment sustaining those defenses, Pasley has appealed.

It is unnecessary to state the nature of the differences of the parties. They are of long standing and may be gathered from the opinions of this court to be found in 36 Ann. 703, 986; 37 Ann. 552, and in 39 Ann. p. -.

For the purposes of the present litigation it will suffice to make the following statement:

In 1882,while Mrs. McConnell held a judgment for $14,660.59 against Pasley, and whil6 the case was pending in this court on a devolutive appeal, Mrs. McConnell caused property of Pasley to be seized and offered for sale and became the adjudicates thereof for $9500.

Subsequently the judgment, to satisfy which the sale had been made, was reduced to $2980 by this court.

Taking advantage of the word reversed, found in the decretal part of the judgment making this reduction and actiug on the theory that by the reversal of the judgment for $14,660.59, the adjudication made in execution of it was a nullity, Pasley brought suit to have that adjudication annulled, but failed in his attempt. This Court maintained the adjudication, but recognized Pasley’s rights to recover eventually the excess of the price over the amount of Mrs. McConnell’s reduced judgment.

The concluding portion of the opinion reads:

As this action presents no feature of a claim for the price, or of the resolutory action for its non-payment, but seeks solely the nullity of the adjudication, we have no occasion to discuss such question now, or the rights of Mrs. McConnell’s transferrees. We simply determine that the present action cannot be maintained.” 38 Ann. 476.

In the course of other controversy between the same parties, this Couit subsequently said, alluding to the decision just mentioned :

There was no express reservation to plaintiff (Pasley) of the right to sue for the rescission of the sale for non-payment of the price of adjudication of the property or for the surplus of the proceeds of sale; but there is, in our opinion, a clear intimation to the effect that suit of either character might be brought.” 39 Ann. p. —.

Grounding himself upon what had thus been said, Pasley brought the present proceeding for the rescission of the sale for the non-payment of the price of adjudication.

He has joined as parties to the suit certain persons, the children of Mrs. McConnell, to whom he alleges that, for the purpose of preventing him from recovering the property, Mrs. McConnell has made a simulated title.

It is to this action that Mrs. McConnell and her co-defendants have set up the exceptions of no' cause of action and of res judicata.

I.

There is no doubt that the petition does not set forth expressly, so ■as to repel any misconstruction, what is really the cause upon which the relief sought is demanded ■, but, from the circumstance that the plaintiff has averred the judgment invoked as res judicata and has annexed a copy of it to his petition, it may be inferred that the cause of action is, that the'plaintiff has called upon the defendant for the payment of the excess of the price of adjudication and that the defendant has refused to pay it.

Under the opinion and decree in the case alluded to, this was the only relief left the plaintiff.

II'.

The suit resting on such a cause of action, it is clear that as this cause had not previously been averred, it could not be and was not passed upon by the judgment invoked to constitute res judicata.

UndeFthe circumstances, we think that, in furtherance of the ends of justice, the case ought to be remanded to enable the plaintiff to state specifically that payment of the excess of the price of adjudication has been demanded and declined.

It is therefore ordered and decreed that the judgment appealed from be reversed; and it is now ordered .'and decreed that the exceptions be"overruled, and that_this case be remanded, with leave to plaintiff to amend’his petition in accordance with the views herein expressed and to be further proceeded with according to law, appellees to pay costs, from the filing of the exceptions including those of appeal, future costs to abide the final determination of the suit.


text:
    No. 1199.
    Succession of L. M. Osborn. On Opposition to Account of Administrator.
    Advances clearly proved to have been used for to other than plantation purposes, cannot be allowed a privilege.
    Por services rendered by counsel in the settlement of a succession in which there was little or no litigation, the assets realizing some $6000, an allowance of $300 is ample, and will not be increased.
    A vendor of real estate is entitled to a privilege for the payment of the unpaid .[price, which exists until it has been relinquished, or the debt satisfied, or prescription has run
    The abandonment need not be in absolute terms. It is enough if it can be inferred from the acts of the parties that the vendor intended to waive his rank in favor of another » and subordinate his claims, in order to secure payment of the latter by preference over himself. What surplus, if any, remains thereafter accrues to the vendor.
    Mr. Justice Poché was absent during the term op accou'pt of illness,

      APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      O. J. & J. 8. Boatner for the Administrator, Appellant.

      Stubbs & Russell for Opponent and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

In the distribution of the funds of this succession the District Court disallowed certain advances which the administrator, in his individual capacity, claims to have made for the working of the plantation of the deceased. The court reduced the amount claimed by the counsel of the administrator for their services in settling the succession, and ordered a mortgage creditor to be first paid out of the proceeds of the property. It, besides, admitted the claim of an opponent, which is conceded to be due.

The parties aggrieved by this judgment now appear and complain that it is erroneous.

I.

The first complainant is the administrator, in his own name, lie charges that the district judge has erred in rejecting his claims for $244.35, which he had advanced Osborn for taxes, insurance and notarial fees.

The district judge considered ihat the amount disbursed was not advanced for purposes connected with the cultivation of the crop, and, therefore, was not secured by privilege.

It is not claimed that it is not so, but it is alleged that although the advances were not used for such purposes, they are secured by privilege, as the party advancing cannot be expected to control the disposition of the cash advanced by him for that object.

Pretermitting the question as to what extent the advancer of supplies and cash is bound to follow the actual application in order to preserve his privilege, it is sufficient to say that the judge a quo disallowed all such as were”clearl,y proved to have been diverted to other than plantation purposes, and that we see no reason to interfere with his finding.

IL

The next matter to be considered is the fee of counsel. There was no evidence adduced in support of the amount placed on the account. Possibly none was necessary under the circumstances of the case.

On this subject the district judge says that it appears to have been no litigation, except what has arisen on the opposition to their account, which has been provoked by ignoring the Brooks’ claim and appropriating proceeds of the plantation to the Scottish American Mortgage Company.

The net amount realized and proposed to be distributed is $5975.71. He accordingly reduced the allowance to $300.

The services rendered in the litigation, touching the distribution, did not necessarily enure to the benefit of the estate, for of what concern was it to the succession that the mortgage company ranked or not Brooks, the vendor, or that McLain, individually, was or not entitled to a privilege for the amount of advances which he claimed to have made.

We find no error in the conclusion of the district judge.

III.

The subject now to be considered is whether Brooks, an opponent, is entitled to be paid the amount which he claims'is "due him 3S vendor, by preference over the mortgage company before alluded to.

It appears that Brooks had sold to Osborn the plantation in question for $6000, one-third cash and the rest equally at one and two years; and that, when part of the debt or credit matured, Osborn undertook to borrow from the company a certain sum of money.

The company would not agree to make the loan, unless payment of it was secured by first rank on the property.

Hence, a notarial act was executed, in which it is’ declared that, in order to assist Osborn in raising the money, Brooks authorizes the recorder to cancel and erase his mortgage to the extent of $2,500, and to enter on his records his waiver of rank in favor of the mortgage company, it being his intention to cancel the same so far as the payment is made, and to waive the ránlc of his mortgage for the balance only in favor of said company and the owners and holders of the notes.

The money raised by the loan was received by Brooks, and the notes which he held credited for as much.

The contention now is that, while he waived his mortgage, he did not abandon his privilege as vendor, which exists by operation of law so long as it has not been formally relinquished, and that, as he has done so as to his mortgage only, he ranks as such with the company.

No doubt the authorities are in that sense; but the issue is not one of law, but one of fuel, on this subject.

It is manifest to our minds, as it was to that of the district judge, that the intention of Brooks was to forego, and that he did give up, whatever encumbrance secured his debt on the property, in order to induce the company to loan the amount which it loaned and which he received.

It is no defense to say that he was not paid the $2500, but that he received only $2289.50. The record shows that he has acknowledged, in writing, to have received the $2500. There is neither charge nor proof that the receipt was fraudulently procured, and it appears to be his voluntary act. Had he chosen, he might still have received less, and, even without any consideration, have yielded altogether the security in his favor for the payment of his claim.

However, as the waiver and subordination were made exclusively in favor of the moitgage company, Brooks would be entitled to receive what would remain of the proceeds after paying what privileged claims are to be satisfied out of them, superadding thereto that of the mortgage company.

We understand that the district judge has thus ruled.

IV.

The claim of Chambliss, an opponent, was allowed below and is recognized here. It must so remain.

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


text:
    No. 1191
    The State of Louisiana vs. John Cloud, alias Clark.
    An appeal made returnable on tlie suggestion of„tlie appellant at an improper place and at an improper time, will be dismissed.
    APPEAL from the Fourteenth District Court, Parish of Calcasieu. Head, J.

      J. G. Gibbs, District Attorney, for the State, Appellee.

      A. H. Mitchell for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant appeals from a sentence of nine months’ imprisonment at hard labor, having been convicted of inflicting a wound lees than mayhem upon one Narcisse Ilulin,

There is a motion on the part of the State to dismiss the appeal on the ground :

“ That the appeal was not made return able with in the time nor to the place required by law.”

The order granting the appeal was rendered on the 15th of May, 1888, and the appeal made returnable to Monroe on the first Monday in June, and at the suggestion of the defendant’s counsel.

The law prescribes (quoting): “All appeals shall be made returnable to the Supreme Court within ten days after granting the order of appeal, wherever the Court may be in session on return day.” Sec. 4, Act 30 of 1878.

At the date of said order of appeal and more than ten days thereafter, this Court was in-session in the city of New Orleans.

The order was, therefore, rendered in contravention of law. 32 Ann. 363; 36 Ann. 865; 38 Ann. 33.

It is, therefore, ordered that the appeal be dismissed.


text:
    No. 1192.
    The State of Louisiana vs. Martin Granger.
    An appeal mado returnable on the suggestion of tlie appellant at an improper place and at an improper time, will be dismissed.
    APPEAL from tlie Fourteenth District Court, Parish of Calcasieu. Head, J.

      J. O. Gibbs, District Attorney, for the State, Appellee.

      H, L. Beldeniox Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant appeals from a sentence of twelve months’ imprisonment at hard labor, imposed under the conviction of the larceny of a cow.

There is a motion to dismiss the appeal on the same ground urged in the case 1191, just decided. That case is identical with this, and for the reasons assigned for the dismissal of the appeal in that case, the motion to dismiss must also prevail in the instant case. The appeal is, therefore, dismissed, .


author: Fenner, J.

text:
    No. 1196.
    Lehman, Abraham & Co. vs. A. T. Worley, Administrator.
    The law makes ib the imperative duty of administrators of successions to see to and provide for the payment of succession debts, and, when necessary, to provoke the sale of the property, movable and immovable, for that purpose.
    This duty cannot be paralyzed by the mere judicial denial by an heir that the dobts ao. knowledged by the administrator are truly due.
    Tn older to restrain the execution of an order of sale provoked to pay debts, an lieir must nob merely allege, but prove, that the dobts do nob exist.
    The law does not forbid the sale of succession property in tbo summer timo, and the probate judge having, in the exercise of his discretion ordered the sale, we liavo no authority, on such ground, to interfere,
    A PPEAL from the Sixth District'Court, Parish of Morehouse. AjL Bilis, J.

      li. B, Todd, Jr., for Plaintiffs aud Appellants.

      Bussey & Naff for Defendant and Appellee:
    1. 'When a succession owes debts and there is no cash with which to pay them, it is proper for the administrator to present a list of allowed debts to the Court and obtain an order to sell property to pay debts. 15 Ann. 641; 28 Ann. 296, 633; 33 Ann. 344 ; 33 Ann. 466 ; C. C. 1668, 1670.
    5. Money being scarce, or the market being dull, is no legal reason why a sale of succession property to pay debts should be enjoined by a residuary heir'; the sale must bo made when the necessity for it occurs, regardless of the condition of the market.
    3. Whan a succession undergoing admioistration is appraised at $6000, and owes debts to near, if not exceeding its value, and a residuary heir to ono-fourth of this estate owes it $4500 and has nothing with which to pay it, he (or the purchaser of his residuary interest) has, in fact, no pecuniary interest in the estate and is not justified in enjoining a sale of the estate propeity to pay debts, because the market is dull or money is scarce, or because he alleges that the estate owes no debts, and when on trial of such an injunction the evidence is conclusive that the debts exist, he is not justified in taking a suspensive appeal from the judgment dissolving the injunction, and should be mulct in ten per cent damages for a frivolous appeal. O'. P. 907; 14 Ann. 287; 10 Ann. 641; 35 Ann-83,927.
    4. The residuary heir who appeals from a judgment dissolving such an injunction occupies the same position as the appellaut from a moneyed judgment, and must pay the «state damages for a frivolous appeal.
   The opinion of the Court was delivered by

Fenner, J.

The defendant, administrator of the succession of T. C. Worley, alleging that the succession owed debts of large amount, a full statement of which he embodied in his petition, and that the sale of the property, movable and immovable, was necessary in order to pay them, applied for and obtained an order of court for such sale.

Subsequently, and while the advertisement of said sale was pending, he filed a provisional account of his administration to date, and appended thereto a tableau of the debts due by the succession corresponding to the statement embodied in his petition for the sale.

The plaintiffs, who had become the owners of the share of one of the heirs in the succession, filed an opposition to this account, in which, amongst numerous other objections, they disputed the debts set down as due by the succession, and denied that the succession owed them. They then filed the present suit for an injunction restraining the administrator from proceeding with the sale which had been ordered until further orders of the Court. The preliminary injunction was granted, the case went to issue and trial, and final judgment was rendered dissolving theinjunction,from which the present appeal is taken.

The grounds of the injunction are three :

1. That inasmuch as plaintiffs in their opposition had put at issue the existence of any clebis due by the succession, the sale should not proceed until that issue liad been determined.

2. That the succession owed no debts which required or justified the sale of its property and, therefore, the sale could not lawfully be made.

3. That the season of the year at which the sale was to take place was one when money was scarce and when the property could not find bidders for its value.

The first ground, by itself, has no merit.

As said by us in a former case, “it is the first and paramount duty of executors and administrators to watch over the interests of creditors and to see to, and provide for, the payment of their just claims against the successions which they represent, and to that end they are vested by law with full power to provoke the sale of the personal and, if need be, the immovable property of the succession.” Succession of Tabor, 33 Ann. 344.

The law made it the imperative duty of this administrator to apply for the sale of the property in case he found such sale to be necessary for the payment of debts which he has ascertained to be due. C. C. 1164, 1165, 1668, 1670.

This is a duty which he owes to the creditors, and of which, in his default, they can compel the performance.

This duty cannot be paralyzed by the mere judicial denial by an heir that the debts, which have been ascertained and acknowledged by the administrator, are actually due. If an heir may restrain the execution of an order of sale obtained to pay debts acknowledged by the administrator, it must be, not because he has denied the existence of such debts, but because, in point of fact, they do not exist. Iu this injunction suit, he carried the burden of establishing that the debts did not exist, and tliat, therefore, the sale of the property for their payment was unnecessary ana unauthorized by law.

The presumption in favor of the validity of the debts resulting from the administrator’s acknowledgment cannot bo overcome by the mere denial of the heir, which did not, therefore, vacate the order or furnish a cause for suspending the sale.

The second ground, if sustained by proof, would have been proper ground for the injunction; but it is not sustained. We need not discuss it further in this case, because the opposition itself, involving this issue, has been tried and is this day decided on appeal, rejecting the opposition and affirming the existence of the debts.

The third ground has no merit. The law is not a respecter of seasons any more than of persons, and her writs and orders operate as effectively in summer as in winter.

Judgment affirmed.

Todd, J., takes no part.


author: Watkins, J.

text:
    No. 1197.
    Succession of T. C. Worley—Opposition of Lehman, Abraham & Co., to Provisional Account or Administrator.
    In case a deceased person leaves amongst his assets a plantation on which, there is a growing crop at the time of his death, his heirs may prosecute the cultivation thereof and incur the necessary expense therefor, as an act of legitimate administration.
    Once an administrator is appointed to said succession, he may continue the said planting operations, iC conducted with the skill and care of a prudent owner, and the necessary costs of same is a proper charge against the estate and may he paid out of the proceeds of the crop.
    If such venture proves successful and a profit is realized, neither an heir nor creditor can take the proceeds of the crop as an asset of the estate, and at the same time reject and disallow the cost and expense of production.
    APPEAL from the Sixth District Court, Parish of Morehouse. Ellis, J.

      Hussey aud Waff for the Administrator, Appellee :
    When the deceased had planted a crop and was furnishing the laborers, it is not only lawful, but the duty of the administrator to cultivate, gather and market the crop, to create all debts and pay same necessary to accomplishing that end, including purchasing and iurnishing goods to the laho5 era, and it is also his duty to preserve and protect tlio property at the cost of the estate. 19 Ann. 494; 30 Ann. 133; 22 Ann. 316.
    When the father is heir to one-fourth of a son’s estate, and is tutor of.fhe other heir, and the estate owes debts and he was helping his son to manage the farm, it is not only lawful, but bis duty to preseive the property and see that the crop is worked pending the time that ensues between when he applies to administer and when he is appointed, and if this interval should be prolonged by an opposition, he is justified in going to such ex. pense as may be necessary to protect the property, furnish the laborers and work the crops, until tlio opposition can be tried and overruled and the administrator appointed , and the estate nmat reimburse him in the amounts expended by him before he qualified as administrator, the same as if such expenditures had accrued after his confirmation. 15 Ann. 625; C. O. 2299, 2300.
    The administrator can pay debts without an order of court, but iu so doing he runs the risk of their being approved by the court as jnsb debts. 33 Ann. 369; 4 Ann. 74; 7 31. 46.

      li. B. Todd, Jr., for Opponents and Appellants:
    An administrator is required to prove every item of bis account under a general opposition; should make strict proof of every item. 29 Ann. 711; 4 Ann. 579; 12 Ann. 537 ; 18 Ann. 272.
    An administrator has no power to create liabilities against estates they represent, change its 'obligations, or increase its reponsibilibies. 8 3ST. S. 451; 2 La. 185; 1 'll. 119; 17 Ann. 17; 21 Ann. 236; 23 Ann. 428; 24 Ann. 83; 39 Ann. 696; Succession of Sparrow.
    If it should be necessary to conduct a plantation for the benefit of a succession during the time necessary for settling it up, special authoHty must be obtained from the Court to do so, in order to bind the estate for current expenses. 23 Ann. 428.
    An administrator is limited in expenses to the amount necessary to preserve the property left in his care.
    In order to complete a contract of lease three things must concur, to-wit: The price, the thing and the consent. The price must be certain and deteirainate, or else there is no lease. Arts. C. C. 2670,2673 and 2672.
   The opinion of the Court was delivered by

Watkins, J.

The succession of T. C. Worley was opened by his death on the 27th of April, 1886, and his property, real and personal, was appraised at about $7000. He died intestate, and his father and one sister were his only heirs, "and by operation of law the latter inherited three-fourths and the former one-fourth thereof.

In May following, opponents caused an execution to issue under a judgment they had previously obtained against A. T. Worley, the father, and thereunder to be seized, the undivided one-fourth interest he had inherited in the succession of J. C. Worley, the son, and, at execution sale made in the month of November following, they became the adjudicatees thereof.

During the pendency of these proceedings, A. T. Worley applied for and obtained the appointment of administrator of his son’s succession, and ¿te was qualified as such on the 6th of July, 1886. On the 11th of July following he filed a provisional account, which was opposed by the purchasers, and their opposition having been rejected in ioto, they have appealed.

At the time of his death, T. C. Worley owned aud operated a cotton plantation. It had been planted, but the cro}) was so immature that it was valued in the inventory as worth nothing. There was opposition made to the appointment of A. T. Worley as administrator, and during the pendency of the opposition tho applicant continued to manage the plantation and superintend the cultivation of the crops thereon, and furnished the laborers who were working on the share system.'

After Ms qualification he continued to buy goods and supplies for these purposes upon terms of credit and had the same charged to his account as tutor, notwithstanding they weie used on the plantation. He gathered the crops, and marketed them. He closed the accounts of laborers by accepting cotton in settlement. He assumed the responsibility of applying the proceeds of the crop to the satisfaction of certain privileged and ordinary debts. On his provisional account he charges himself with the amount of the inventory, the net proceeds of the cotton crop, $5,661.46, and the proceeds of the sale of corn — the whole aggregating the sum of $13,524.82.

He credits himself with the value of the real and personal property on hand, unsold. He shows that he disbursed the proceeds of the crop in payment of bills for supplies, bagging and ties, shop and freight bills, and, in fine, bills of every nature applicable to the cultivation of a cotton crop. He shows that, in addition, he paid individual debts of the deceased to the amount of $3,931.77.

On this showing it appears that the amount of the debts remaining unpaid is only $4,045 52, and that, by virtue of the administrator’s planting operations, the condition of the estate has been improved to the extent of $2,960.31 within less than one year after he had qualified.

The position assumed by the opponent’s counsel is that the status of a succession is fixed at the date it is opened, and its liabilities cannot be augmented afterwards by any act of the representatives of the deceased.

He then formulates this proposition, viz:

“ At the death of T. C. Worley his property was inventoried at ‘‘$7,085.50. The crop of five hundred acres, not inventoried, was well worth $5,000.00. Then, according to the inventory on file, and “ a fair estimate of the crop, Worley’s succession at the time of his “ death was worth $12,085.50.” , *

With this assumption as the basis of his client’s case, he undertakes to show that all the debts that were contracted by A. T. Worley, as tutor and administrator, for the account of the succession in the course of his planting operations in 1886, should be entirely eliminated from the account. The only items of indebtedness which he intimates a willingness to allow, are the supply account of John Phelps & Co., of $2,500, and the amount the administrator paid on the mortgage of Moses Wolf of $793.90. This allowance would result in a balance of $2,568.42, for which the administrator should account.

The opponents specially resist the allowance of the claims of Handy, Davenport, Andrews and Miss Alma Worley. The only objection urged in oral and printed argument against the first three is, that they were contracted by A. T. Worley, either in his capacity of tutor or administrator, after the succession of T. C. Worley was opened, and that he did not have the power or rightful authority to bind his succession therefor. But the one that is urged against the claim of Miss Alma Worley is that the deceased was not indebted to her for rent of the years 1885 and 1886, because there was no contract of lease during those years; and because the deceased had expended for her account, in 1884, more than the amount of the rent. There was nothing due for that year.

II.

In this controversy, it may be conceded arguendo, that Lehman, Abraham & Co.., as the purchasers of the undivided share of A. T , Worley in the succession of the deceased, occupy identically the same position that he did as an heir. They purchased cum onere and subject to the payment of his proportion of the debts of the deceased. When T. C. Worley died, A. T. Worley, his father, was the only living male heir. He was the only person capable of taking charge of the plantation and of administering its affairs. The deceased had planted a crop, and his death occurred in the month of April, that particular season when it most needed attention and care. His application to administer was opposed by them, and his qualification was delayed, on that account, until July. It seems to us needless to cite authority to demonstrate his right to act in the premises as he did. In our opinion he would have proven himself a recreant father and heir, and an unfaithful administrator, if he had not.

It appears to us to be unreasonable and unjust to treat the proceeds of the crop as an asset of the succession, and, at the same time, to refuse to allow credit to the administrator for the amounts he expended, necessarily, in its cultivation and preparation for market. It seems to us equally unreasonable to treat it as an individual adventure of A. T. Worley, when it manifestly yielded a large profit for the estate.

Evidently there is involved in these transactions no question of maladministration. It is manifestly improper for us to grant opponents’ request, when we take into consideration the fact that they purchased the interest of A. T. Worley in November, 1886, when the crop was fully matured, and without protest; and considering the further fact, that they were fully advised by the account, of the large profit the venture had yielded, when, in July 1887, they filed their opposition and made pretension to it.

We have no hesitancy in approving the acts of A. T. Worley, tutor and administrator, as legitimate and proper acts of administration. This case is easily distinguishable from that of the Succession of Sparrow, 39 Annual. For in that case, in discussing the identical question under consideration here, we employed this language, viz :

"The rule is not absolutely inflexible to the extent of annulling or defeating a debt incurred by an administrator in meeting the expenses necessary to save and harvest a crop already begun, or hanging by the roots at the elate of his appointment. * * * *

Miltenberger vs. Elam, 11 Ann. 668; Succession of Decuir, 22 Ann. 372; Miltenberger vs. Taylor, 23 Ann. 189; Carroll vs. Davidson, 23 Ann. 428; Forsheim vs. Holt, 32 Ann. 133.” Ibid, p. 702.

This succession occupied just that situation at the date of T. C. Worley’s death and that of A. T. Worley’s appointment, and that doctrine is strictly applicable to the debts and obligations which A. T. Worley contracted for its account, and disbursed from the proceeds of the crop that was grown and gathered during the ensuing season. They were undoubtedly proper charges against the crop, if not debts of the succession, strictly speaking.

III.

It appears from the evidence that Miss Alma Worley owned a small plantation of 250 acres, which T. C. Worley cultivated during the years 1884, 1885 and 1886. In 1884 he contracted to pay for her land five dollars per acre; that is $1,250 00 for the whole. During that year he purchased of her $800 worth of corn. This contract of lease was renewed in 1885, and again in 1886, by a verbal agreement, or tacit reconduction.

The following settlement was made of the mutual accounts of the parties, viz:

She charged him with note for corn and rent in 1884....... $2,000 00

Rent of 1885 and 1886.................................... 2,400 00

Total.................................................. $4,400 00

Credit by schooling, clothing and general maintenance, two and one-third years............. $1,400 00

By possible amount of taxes.................... 300 00

By 1,000 barrels of corn received of administrator 500 00 — 2,200 00

Balance due............................................ $2,200 00

This statement was accepted by the judge of the vicinage, who knew the witnesses and heard them testify; and our examination of the record justifies the conclusion he reached.

We have no doubt of the fact that opponents’ counsel acted in their interest, with the lights he liad upon the question involved, and as he would not have done had he been possessed of the facts that were elicited upon the trial.

Tire administration of the estate has been delayed, and possibly embarrassed by this litigation, but that is a misfortune common to all litigants. This is not a case which would justify us in assessing damages against the opponents for the prosecution of a frivolous appeal.

Judgment affirmed.

Mr. Justice Todd takes no part in this opinion.-