text:
    No. 11,405
    Orleans
    SOUTHERN DEVELOPMENT CO. v. GRECO
    (April 23, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 320, 583; Prohibition — Par. 8.
    Because appellee objects to tbe validity of tbe appeal bond, appellant is not obliged to furnish another bond, he may stand upon the original bond and appeal from a judgment adverse to its validity. (In this case by writ of prohibition.)
    2. Louisiana Digest — Appeal—Par. 310, 311.
    A surety on an appeal bond for $3100 meets the requirements of the law if he owns a home worth $5500 mortgaged for $2100, and $5000 of shares of stock in a hotel company, and earns a salary of $175 a month.
    Appeal from Civil District Court. Hon. Mark M. Boatner, Judge.
    Action by the Southern Development Company against Constant Greco.
    There was judgment for plaintiff and defendant appealed.
    Appeal dismissed by District Court for insufficient bond. Defendant applied for writ of prohibition.
    Judgment dismissing appeal reversed and set aside and prohibition made perpetual.
    Bernard Titche, Jr., of New Orleans, attorney for respondent.
    E. S. Hayford, of New Orleans, attorney for relator.
   CLAIBORNE, J.

The plaintiff obtained a judgment against the defendant for one thousand nine hundred and nineteen dollars-Prom that judgment the defendant obtained a suspensive and devolutive appeal upon his furnishing bond for a suspensive appeal in the amount fixed by law, and for a devolutive appeal in the sum of fifty dollars.

Accordingly the defendant furnished a bond of three thousand one hundred dollars, and filed the transcript of appeal in this court under the No. 11,340.

The bond for $3100 furnished by the defendant and appellant was signed by Prank Roques as surety.

Thereupon plaintiff and appellee took a rule on defendant and aippellant to show cause why his appeal should not be dismissed “because the surety thereon was not good and solvent.”

Evidence concerning the solvency of Prank Roques, the surety, was taken and, after hearing, the rule to dismiss the appeal was made absolute, the trial judge holding that it was made certain that the surety was not possessed of property liable to seizure to an amount of $3100.

Although the judgment appears nowhere in the record, it is admitted that the rule was absolute and that the appeal was dismissed.

The appellant has applied to this court for a writ of prohibition maintaining the sufficiency of the surety and (prohibiting the execution of the judgment.

Appellee objects that under Act 112 of 1916, page 243, appellant’s only remedy was to file another bond within 48 hours. This is an error. Section 2 of said Act confers on the appellant a delay of 48 hours, after notice, to furnish additional bond in case the original bond is insufficient for any error in the amount thereof, or insolvency of the surety, or for any error in the language of the bond; but it does not preclude the appellant from standing upon his original bond and appealing from a judgment adverse to its validity.

The surety testified that his property consisted of the following assets:

He owns the property No. 1670 North White Street in this City in which he lives with his wife and two children; he bought it through the Conservative Homestead for $4700; he has paid upon it all but $2100 upon which he must pay $42 every 4 weeks; he values his property at $6000; it is assessed $3500; he rents out one-half of it for $25 per month and occupies the other half.

He also owns 50 shares of the Planters’ Hotel Company, for which he paid $5000; he holds the certificate of stock and keeps it in the safe of the Planters’ Hotel; the capital of the Planters’ Hotel, Inc., is $25,000; it does not own the hotel, it only runs it; it declared 15% dividend last year; it may declare a dividend this year, though the business has not been so good; he is manager of the hotel, secretary-treasurer and receives a salary of $175 per month.

Charles Kohlmeyer is vice-president of the Interstate Trust and Banking Company; about a year ago he owned five shares of the Planters’ Hotel Co. which he sold for $150 per share.

N. J. Clesi is vice-president and appraiser of the Italian Homestead Association; he investigated the property of Roques, the surety; and says it is worth between $5500 and $6000.

Albert S. Nunez is a real estate broker; he has visited the property 1670 North White Street; it is bounded by Paul Morphy, Derbigny and Broad and Onzaga Streets; it is worth at least $5500.

Fred Demoruelle operates in real estate and in building materials; he has visited the property and values it at $5500.

Constant Greco is owner of Planters’ Hotel Company stock; he paid $150 per share for it; he sold the stock to Roques; Roques paid him first $3000 and last $2000; he obtained it from a person by the name of Almanach.

The qualifications of a surety on an appeal bond are governed by Article 575 of the Code of Practice and its amendments. The original Article 575 required “a good and solvent security.”

The Supreme Court in the years 1870-1873 in Sampson vs. Gillis & Ferguson, 22 La. Ann. 591; State ex rel. Lynch vs. Judge of Second Judicial Court, 23 La. Ann. 714; and State of La. ex rel. Hays vs. Judge of Fifth District Court, 25 La. Ann. 616, decided that the burden was upon the appellee to prove the insolvency • of the surety. In order to reverse this ‘‘offensive jurisprudence” (State ex rel. Menge vs. Rightor, 36 La. Ann. 712) the legislature in 1876 adopted Act 24, page 49, providing that appellant must give his obligation, with good and solvent security, residing within the jurisdiction of the court, and having property “liable to seizure” to the amount of the obligation within the State * * * provided further that the party furnishing the security shall prove his solvency to the satisfaction of the cburt whenever it is questioned by any party interested in the appeal.-

In the same year, 1876, Act 67, page 109 was passed providing that:

“The debtor obliged to furnish security must offer a person able to contract, having property ‘liable to seizure’ within the State sufficient to answer for the amount of the obligation, and whose domicile is in the jurisdiction of the court where it is to be given.” Act 225 of 1908, p. 342.

Act 45 of 1890, page 38, again amended Article 575. The terms are the same as those in Act 24 of 1896 with the exception of the words “liable to seizure” which are omitted. We are not concerned with that difference inasmuch as it is not disputed that all the property of the surety is “liable to seizure” in the sense that it is not “exempted.” State ex rel. Favore vs. Judge, 28 La. Ann. 884.

In the case of Vredenburg vs. Behan, 32 La. Ann. 475, Judge Spencer, on p. 480, said:

“When the law requires .a surety to be given, it does not intend a mere formality to be gone through. It intends that the creditor shall have pledged for his debt something that may be made available for its payment.” Also 36 A.

The only question therefore remaining is whether the surety has “property within the State sufficient to answer, for the amount of the obligation.”

The bond is for $3100.

It is not alleged that the amount is insufficient.

The testimony is that the surety owns the property in which he resides, No. 1670 North White Street; that he purchased it from a homestead company, for $4700 and remains owing upon it $2100; that it is a double cottage; he rents one side of it for $25 and lives on the other side; he has improved the property since he purchased it; three expert witnesses, uncontradicted, testify that the property is worth today $5500 or $6000; -this would leave an equity or margin of $3400. Under the authority of. State ex rel. Shropshire, 23 A. 491, the surety is sufficient.

Besides this immovable the surety owns fifty shares of the Planters’ Hotel Com- . pany. The district judge disregarded this asset on the ground that it was a (precarious investment, of doubtful value, easily disposed of, and difficult, if not impossible, to seize the certificates.

The reasons of the learned judge are very forcible, but not sufficient under the jurisprudence.

In State ex rel. Kane vs. Judge, 23 La. Ann. 279, the bond was for $200; the property of the surety was all movable and estimated by him at $600. The court said:

“This seems to answer the requirements of the law. A surety is not required, to own immovable property but to have property sufficient, at the time of signing the bond,, to answer for the amount of the obligation assumed by him. There is nothing in the record which leads us to suppose or conclude that his property, as described by him, is insufficient in value iand amount to meet the obligation signed ■by him. The theory that the property may deteriorate or be disposed of before the termination of the litigation would render most sureties doubtful,' at least, it made the test qf sufficiency. The law rather presumes that every man will endeavor to increase than lessen his possessions.”

In State ex rel. N. O. Item Co. vs. Judge, 6 Orl. App. 173, the surety signed a bond for $1000. Over and above shares of stock in the Item Co., the surety owned bonds of a publishing company in Virginia to the extent of $7000 worth par. The surety was held sufficient.

In the case of State ex rel. Favre vs. Judge, 28 La. Ann. 884, the bond was for $1500. The surety held and owned two promissory notes amounting to $5600 upon which the interest was regularly paid by the makers. The Court said:

“We know of no law, and we have been referred to none which exempts promissory notes from seizure. The records of our courts and reports of decisions present not a few cases where they have been seized, and we cannot say that the difficulty and inconvenience of seizing them, so much discussed by the counsel, will authorize us in declaring them not liable to seizure.”

We think that under the law and the jurisprudence of this State the surety in this case is sufficient.

In the case of State ex rel Lynne vs. Judge, 24 La. Ann. 328, the surety’s bond was for $2000. He swore he was worth $7000. The fact that one piece of real estate was assessed for a smaller amount than that which he paid for it, and that it was advertised for sale under foreclosure was not sufficient to (defeat his estimate.

The case of State ex rel Menge vs. Judge, 36 La. Ann. 711, decided in 1884, is not in conflict with these opinions. In that case the able Chief Justice Bermudez interpreted the words of the statute of 1876 “liable to seizure” to mean “susceptible of seizure.” But Act 45 of 1890 has omitted those words perhaps in consequence of that decision thus rendering the decision in the Menge case inapplicable.

In the case of Stores vs. Judge, 21 A. 735, the surety signed a bond of $2000 his property consisted of stock in trade money in bank and in pocket, and $6000 outstanding loans; he had two stores; the stock of both was about $6000; he owed $2200; he owned a judgment against solvent parties for which he had been offered $10,000; he was worth in all $20,000.

The court held the surety sufficient.

In State ex rel Pontchartrain Rrd. vs. Judge, 27 A. 697, the bond was for $16,050. The surety’s property was all personal which he valued at $35,000. He owed $10,000. Much of his property was pledged to secure $8,000; he was also surety on another bond of $5000. The court said:

“The property of the surety on the bond is all [personal property; but this is no objection.”

Nor do we believe that the authority of the above decisions is affected by Section 4 of Act 112' of 1916, p. 242.

That section provides:

“That no officer of any court shall accept any bond, unless each surety thereon shall have made oath that he is worth over and above all his debts and obligations, in assets that can be subjected to levy under execution the amount for which said surety has bound himself in said bond.”

We are of the opinion that this language conveys the same meaning as “liable to seizure,” that is, not exempt from seizure, “but that can be, or may be, subjected to levy under execution.” The difficulty of subjecting to execution not being an element of solvency under the decisions above quoted.

It is therefore ordered that the preliminary writ herein issued be made perpetual; that the plaintiff herein, the Southern Development Company, Inc., and the respondent Judge of the District Court be prohibited from executing the judgment in the case of the Southern Development Company, Inc., vs. Constant Greco, No. 171,677 of the Civil District Court for the Parish of Orleans, and that the judgment of said court dismissing the appeal taken from said judgment be and is hereby reversed and set aside, the said Southern Development Co., Inc., to pay the costs of this proceeding.

Judgment dismissing appeal reversed and set aside, and prohibition made perpetual.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    No. 11,031
    Orleans
    CANOVSKY v. GEHRSEN
    (November 28, 1927. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Evidence—Par. 58, 351.
    Where defendant fails to sustain his special defense of alteration by a preponderance of the evidence, plaintiff is entitled to judgment.
    Appeal from the First City Court, Division “A.” Hon. Wm. A. Bahns, Judge.
    Action by David Canovsky against Samuel Gehrsen.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Sidney G. Roos, of New Orleans, attorney for plaintiff, appellee.
    Joseph Rosenberg, of New Orleans, attorney for defendant, appellant.
   JONES, J.

This is a suit for one hundred fifty dollars ($150.00) alleged to be due as a commission of four per cent (4%) on sale of real estate.

The contract, which is on the ordinary printed real estate broker’s form, consists of an offer to purchase within sixty days, signed by one Victor Cefalu, on April 23, 1926, and the acceptance signed by defendant on the same date. Offer was to hold until April 24, 1926, at five p. m. In other words, twenty-four hours was given for execution of contract. In the body of the printed part the word “cash” is marked out and the word “note” is written in ink above it. Also the word “title” is marked out in ink.

Defendant, after denying that plaintiff had furnished a purchaser able and willing to buy at stipulated price, avers that the’ purchaser failed to deposit ten percent (10%) of the purchase price in cash upon acceptance of the offer, “it being well understood that said ten percent deposit was to be represented by cash only and respondent avers that the agreement was silent as to any note before signing, that plaintiff failed to secure any cash,” that at the time plaintiff well knew defendant was in the process of purchasing the property, but had not then secured title.

It will be noted that alteration while implied is not clearly pleaded.

The trial judge found in favor of plaintiff and defendant has appealed.

As defendant contends in this Court that the agreement of sale was altered after he signed it, the burden of proof is on him to prove this by a preponderance of the evidence.

Defendant swears that he signed the acceptance before the owner signed the offer to sell and that the contract then did not provide for a note, but had been altered later, that he had subsequently compromised the matter with the owner, Cefalu, but had not paid a cent to any one, that three days after the contract, on his way to Notary Riftenberg’s office to deliver the property, he had been told by plaintiff there was a note, for the first time, and had protested.

Cefalu, the prospective purchaser, swears that he signed the document before Gehrsen and that the word “note” was then in the document;, that Gehrsen, who had been unable to make title to the property, had agreed to pay Notary Rittenberg for his certificates and examination of title and he had agreed not to hold him for damages; that no .complaint had ever been made about the note until after suit was filed and that he had been ready and willing to take over property, but Gehrsen couldn’t get' title to it.

On cross-examination he says that he did not remember when the word “cash” was marked out and the word “note” written in, but later says, “I am positive I gave the note at the date we closed the deal.”

Notary Rittenberg swears that Gehrsen and Cefalu came to his office to pass the act, but Gehrsen couldn’t get title to the property; that the matter was then compromised by Gehrsen’s agreement to pay his fees and .Cefalu’s agreeing to drop it; that subsequently Gehrsen did pay him about thirty or forty dollars.

Plaintiff swears that when the offer to buy was signed by Cefalu, before defendant had accepted, Cefalu marked out the word “title;” that the word “cash” was stricken out and the word “note” written in before defendant signed it and that he had (phoned and written defendant immediately stating that the offer had been accepted and the note signed and delivered tq him; that no objection had been made; that the word “note,” which was in Cefalu’s handwriting, had been put in before Gehrsen signed.

It is thus seen that defendant is contradicted by, Gehrsen, Cefalu and Attorney Rittenberg on important points. We agree with the judge below that he has failed to prove his special defense of alteration.

for these reasons the judgment is affirmed;


author: REYNOLDS, J.

text:
    No. 3199
    Second Circuit
    STATE EX REL. GRUNER v. DREW, Judge
    (February 1, 1928. Opinion and Decree.)

      (Syllabus by the Court)
    I. Louisiana Digest — Appeal—Par. 191, 246, 379.
    Under an order granting both a suspensive and a devolutive appeal, the appellant does not waive his right to perfect the suspensive appeal within the legal delays by perfecting first and separately the devolutive appeal.
    On petition of State ex rel L. A. Gruner and wife for writs of prohibition, certiorari and mandamus directed to H. C. Drew, as judge, etc., and others, alternative writs of prohibition, certiorari and mandamus made peremptory.
   STATEMENT OF THE CASE.

REYNOLDS, J.

On the petition of L. A. Gruner, and his wife, Mrs. Gladys Gruner, alternative writs of prohibition, certiorari and mandamus were issued by this Court directed to the Honorable H. C. Drew, as judge of the Twenty-Sixth Judicial District Court of Louisiana, in and for the parish of Webster, and A. H. Phillips, as sheriff of said parish, and C. D. Lites and J. A. Lites, as plaintiffs in a suit on the docket of said Court numbered 6124, wherein relators are defendants, prohibiting them, until the further orders of this Court, from proceeding with the execution of the judgment in said cause, ordering the record therein sent up to this Court for inspection, and them to show cause why the judgment of the District Court therein, on rule, ordering said sheriff to proceed with the execution of said judgment, should not bé annulled.

Relators allege that on. November 4, 1927, an order for executory ¡process to issue in said cause was signed by said Judge and that notice to pay was served on them on November 5, 1927. That on November 8, 1927, orders of appeal, both suspensive and devolutive, were granted them, the bond for the devolutive appeal being fixed at $50.00 and that for the suspensive appeal according to law; that within the legal delays they executed and the clerk of the court approved and filed a bond for the devolutive appeal and thereafter and also within the légal delays they executed and the clerk approved and filed a bond for the suspensive appeal; that thereupon they were ruled to show cause why it should not be adjudged that their suspensive appeal had not been perfected and the sheriff ordered to proceed' with the execution of the - judgment and on hearing of the rule it was made absolute.

And they prayed for alternative writs of. prohibition, certiorari and mandamus prohibiting respondents from proceeding with the execution of the judgment, annulling the judgment making the rule to show cause absolute, and ordering the record sent up for the inspection of the Court, and that after hearing the writ of .prohibition be made peremptory and the judgment on the rule to show cause annulled.

Respondents answered admitting these allegations of the petition and alleged—

1. That the filing of the devolutive appeal bond as "equired by law divested the District Court of jurisdiction as to the granting of further orders or receiving further bonds and the case was - then and there transferred to this Court.
2. That the filing of the devolutive appeal bond waived the right to file a suspensive appeal bond, and as the property was under seizure and advertised for sale the filing of the suspensive appeal bond could not affect the proceedings in execution of the judgment.
3.That there was only one order of appeal issued, that it called for a devolutive or suspensive appeal, that only one appeal could be taken thereunder, and that when the devolutive appeal was perfected the right to a devolutive appeal was lost and could only be regained by a new order therefor.

OPINION.

We find in the record on appeal in the suit of C. D. Lites and J. A. Lites vs. L. A. Gruner and Mrs. Gladys Gruner, No. 6124 on the docket of the Twenty-sixth Judicial District Court of Louisiana in and for the parish of Webster and No. 3190 on the docket of this Court, the following order:

“In this cause, by reason of the law and the above petition and affidavit being in favor thereof, the appeals prayed for, both devolutive and suspensive,. are granted, and bond for suspensive appeal according to law and devolutive in the sum of fifty ($50.00) dollars; appeal to be made returnable to the Honorable Court of Appeal holding sessions in Shreveport, Caddo parish, Louisiana, returnable Thursday, December 1st, 1927.
“Signed officially this November 8th, 1927.
“(Signed) H. C. DREW.
“26th District Court, Webster parish, Louisiana.”
(Italics our.)

It appears, then, that relators were granted orders of appeal both suspensive and devolutive, and' therefore the only question presented for our decision is whether relators by perfecting their devolutive appeal within the legal delays thereby waived the right to perfect their suspensive appeal.

This is an interesting question and one which we do not find has been directly adjudicated by our Supreme Court.

In the case of Legget & Brothers vs. Potter, 9 La. Ann. 309, it was said:

“The question presented is, whether (the case being appealable) plaintiffs were warranted in issuing execution until after the expiration of ten days from the notification of judgment? The act was manifestly irregular, unless by taking a devolutive appeal, defendant is to be regarded as having waived the delay. The object of the delay is, that the party against whom judgment has been rendered, may have time to consider whether or not he will take a suspensive appeal, and, in case he shall do so, to allow him a reasonable time to procure his security, and do such other acts as may be necessary. This reasonable time is ten days. It is for the benefit of the judgment debtor; but like any other privilege, may be waived,; and this waiver, together with the waiver of a suspensive appeal, we think was virtually made, when defendant obtained hie devolutive appeal.”

This language, taken literally, might well 'be construed to mean that the perfecting of a devolutive appeal under an order granting both a devolutive and a suspensive appeal waives the right to perfect the suspensive appeal; but that question was not at issue in that case and we regard the language of the Court quoted as obiter dicta insofar as it affects the question at issue here. The question before the Court there was whether an execution issued upon a judgment within ten days after the judgment was rendered was prematurely issued.

The same is true of the case of Hatch vs. English, 12 Rob. 135, the syllabus in which reads as follows:

“Where a fi. fa. has been issued against a defendant before notice of judgment served on Jum as required by law, he may require that the fi. fa. be quashed, and a suspensive appeal allowed. But where he contents himself with taking a devolutive appeal only, he cannot afterwards complain.”

We are of the opinion 'that relators were entitled to perfect their suspensive appeal within the legal delays notwithstanding they had already perfected their devolutive appeal and they having done so the judgment making absolute the rule to show cause why the sheriff should not be ordered to proceed with the execution of the judgment was erroneous.

It is therefore ordered, adjudged and decreed that the alternative writs of prohibition, certiorari and mandamus heretofore issued here be made peremptory.


author: REYNOLDS, J. By the Court:

text:
    No. 3269
    Second Circuit
    CARTER v. MARTIN
    (March 20, 1928. Opinion and Decree.)
    (March 22, 1928. Rehearing Refused.)

      (Syllabus by the Editor)

    1. Louisiana Digest — Elections by the People — Par. 73, 78, 80.

    Although under Constitution 1921, Art. 8, Section 5, and Act 122 of 1921 direct proceedings to purge registration rolls were provided, the question whether voter at primary election had no right to vote because not legally registered or not entitled to register, could not be raised by collateral attack; this, however, does not apply to registration less than the 30 days’ time limit before election, because parties interested would not have time to remove the names from the rolls before the election took place.
    2. Louisiana Digest — Election by the People — Par. 85; Appeal — Par. 552, 553.
    Under Section 27 of Act 97 of 1922 “No application of rehearing shall be entertained, but the Courts may correct manifest errors to which their attention may be called upon their own motion in contests of elections.”

      Appeal from the Eighth Judicial District Court of Louisiana, Parish of Winn. Hon. F. E. Jones, Judge.
    Action by R. B. Carter against C. M. C. Martin.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    E. E. Kidd; Harry Fuller, of Winnfield, attorneys for plaintiff, appellee.
    Moss & Moss, of Winnfield, attorneys for defendant, appellant.
   REYNOLDS, J.

Plaintiff sues defendant to have himself rather than defendant declared the nominee of the Democratic Party for the office of police juror of ward eight of the parish of Winn, State of Louisiana, at the primary election held on February 28, 1928. The facts appear in the opinion. There was judgment for the plaintiff and defendant appealed.

OPINION.

Our learned brother of the District Court in a written opinion in the case summed up the facts therein and the law applicable thereto as follows:

“This is a contest suit as to who shall be the Democratic nominee for police juror in ward eight of the parish of Winn. The plaintiff alleges that he received eighty-six (86) and the defendant eighty-seven (87) votes according to the returns promulgated by the Parish Democratic Executive Committee. He alleges that two (2) of the votes cast for the defendant were illegal, null and void and were cast by Mr. and Mrs. Roy Sanders. He alleges as the reason of the illegality of these votes, that both were registered voters of ward seven (7) and that they voted and participated in the ward election of ward seven (7) on the seventeenth of January, 1928, and that they had fraudulently had their voting precinct changed from ward seven (7) to the Calvin precinct in ward eight (8) and that the manner of change was illegal and not according to law. The defendant files an exception of prescription and no right and cause of action, and filed his answer denying the contention of plaintiff, and then alleging that the plaintiff received six (6) illegal votes which should be deducted from the number that the plaintiff received in the election.
“The exceptions were referred by the Court to the merits. The Court is of thi. opinion that the exceptions are not well taken.
“The Democratic Executive Committee met at noon on the first day of March, 1928, and about twenty (20) minutes before one (1) p. m. promulgated the returns.
“This lawsuit was filed ■ at twelve ten (12:10) p. m. on March 3rd.
“The law provides that the suit must be brought within two (2) days, and the plaintiff has complied with this requirement.
“The exception of no cause of action is not well taken, as the Court is of the opinion that the petition states a cause of action.
“Evidence was offered to show that the political residence of Mr. and Mrs. Roy Sanders was not in ward eight (8), but was in ward seven (7). These two witnesses had lived in ward seven (7) their entire lives. Their parents lived in this ward and the two had registered and paid their poll tax in ward seven (7) and had voted there on the 17th day of January, 1928, for the father and father-in-law of these two voters. He having no opposition in the second primary, on the 25th day of February, 1928, they requested the registrar to change their registration to Calvin precinct in ward eight (8). They made no written application or affidavit but merely gave a verbal order.
“This testimony was objected to by defendant and was. admitted subject to the objection. There is no question that Mr. and Mrs. Roy Sanders had no legal right to a political domicile at Calvin, if this Court has authority to pass upon the subject matter.
“The defendant offered similar testimony as to the political residence of the witnesses, O. B. Bice, Mr. and Mrs. W. H. Carter, and Mr. and Mrs. B. R. Carter, 'an'd abandoned" tbeir inquiry as to Miss Bertha Machen.
“The evidence showed that Mr. and Mrs. B. R. Carter had not lived in ward eight (8) for eight (8) years but they had never voted at any other precinct.
“Mr. and Mrs. W. H. Carter had not lived in ward eight (8) since the 29th day of May, 1926, but they had never voted at' any other precinct and had always voted at Calvin, and that Mr. O. B. Bice had lived. in Winnfield, ward one (1), since August, 1927.
“It is clear that these voters are illegal voters if the Court is authorized to inquire into same.
“The testimony was timely objected to ■ by the plaintiff, and was admitted subject to the objection.
“The Court is of the opinion that the objections urged by both the plaintiff and defendant on this point are good, and that the Court is not authorized to pass upon the political domicile of these voters or as to what place was their political domicile.
“The constitution and registration laws place the question of a voter’s political domicile in the hands of a jury when same is in question, and the registration laws make provision for the registration of voters and the removal of same from the registration.
“In the event that the Registrar fails, to dischage his duty, the law gives to any voter the right to apply to the Court and direct action to have the illegal voters removed from the registration.
“In a contest case, the question of whether a person who has duly registered according to law, has a right to vote since he does not reside in the place he votes, the time required by law, cannot be gone into. This would be a collateral attack upon the registration, which is prohibited both by the constitution and by the law.
“This matter was settled in the case of Perez vs. Cognevich, 156 La. 331, and Turregana vs. Whittington, 132 La. 454.
“This being the case, the defendant cannot question the right of Mr. and Mrs. W. H. Carter, O'. B. Bice, and Mr. and Mrs. B. R. Carter to vote in the election held at Calvin on the ground that they did not reside in that ward; neither can the plaintiff question the right of Mr. and Mrs. Roy Sanders had a political domicile in Calvin, but the Court can pass upon the subject as to' whether they changed their political domicile timely and in the manner prescribed by law.
“The evidence shows that this change in the registration from ward sevfen (7) to ward eight (8) was made on the 24th day of February, 1928, on the mere verbal requests of Mr. and Mrs. Roy Sanders at their home. The law states that they shall make affidavit showing the time of the change of their residence, and upon making such affidavit the Registrar shall make the change. There was no affidavit or even application made for the change, and it seems that the voters did not make an honest effort to comply with the law, in having their registration changed from ward seven (7) to ward eight (8).
“The primary election law, section ten (10), especially provides: ‘Any voter moving from one election ward or precinct to another in the same parish and therein continuously residing for three months, shall, by making affidavit' of such change of residence, giving date of such removal, to the Registrar Or his chief deputy, have the registration records changed accordingly to correspond with the new residence.’
“It further provides as follows: ‘It is especially provided that no change of residence as above mentioned shall be made on the registration books during the thirty days’ period next preceding the election.’
“Mr. and Mrs. Roy Sanders did not make the affidavit as required by the above section, and the Registrar made the change just four days . prior to the election, when the law specifically provides that they cannot be made within thirty (30) days.
“It is contended by defendant’s attorneys that this law is in conflict with section sixteen (16) of Article eight (8) of the Constitution of 1921, which provides as follows:
“ ‘Electors shall not be registered within thirty days next preceding any election at which they may offer to vote, but application to the Courts, and appeals, provided for in this constitution, may be heard and determined, and revision and transfer from precinct to precinct in the same parish may take place at any time prior to the election.’
“If section sixteen (16) of Article eight (8) of the constitution is construed to mean that the voter may transfer from one precinct to another precinct at any time, before election, then the primary law is superseded by that section of the constitution; but it can hardly be contended that the framers of the constitution intended to give the Registrar of Voters the right to change the registration of any voter from one precinct to another precinct, at any time before the election, especially when the voters do not make an affidavit as to. their date of change of residence. If this was intended, and could be done, a Registrar of voters, by changing the registration of several voters on the day before election to a certain ward, could control the election in any ward in a parish, and by such maneuvering could elect the candidates of his choice. The logical and reasonable intention of the framers of the constitution as expressed in section sixteen (16) of Article eight (8) of the constitution means that Court proceedings might be had within this thirty days and after the Court had acted any revision and transfer the Court saw fit to make, could be entered on the registration books.
“Section four (4) of Article eight (8) of the Constitution of 1921 provides that the legislature shall make laws to secure fairness in any primary election, etc., and as a result of this section the legislature has enacted the Democratic Primary Election Law for the state, and that law provides that no one can change his voting precinct unless he makes an affidavit stating the day of the change of his political residence, and this change must be done in thirty (30) days prior to the election.
“The Democratic primary law also requires the Registrar of Voters seven (7) days before election day to make a certified list of all voters and certify to' same as being complete, and must turn it over to the Democratic Executive Committee within three days of the election.
“If a voter can change from precinct to precinct at any time before the election, then the Registrar of voters cannot make a complete list of the registered voters as required by law, and the candidates would have no opportunity of knowing who are the registered voters in- their ward or precinct, and would have no opportunity to bring an action to purge the registration of illegal voters.
“Mr. and Mrs. Roy Sanders having not complied with this formality of the law of making an affidavit, and their rog-stration being changed four (4) days before the election, is not timely, and for these reasons they were not entitled to vote in the primary election held in ward eight (8) on the 28th day of February, 1928, and their votes should be stricken from the number that the defendant received, and the plaintiff should be declared the Democratic nominee for police juror of ward eight (8).!’

We have carefully read the evidence and briefs of counsel and being satisfied that the findings of fact and conclusions of law Qf the district judge are correct, adopt them as our own.

Defendant insists that he has the right to contest the legality of the five votes that he contends were illegally cast for plaintiff, since plaintiff was permitted to contest the legality of the two votes he claims were illegally cast for defendant.

We do not think so.

The difference in the qualifications to vote of the two votes cast for defendant and alleged by plaintiff to have been illegally cast and the five votes cast for plaintiff and alleged by defendant to have been illegally cast, is that the five voters were duly registered as such and their names appeared on the poll lists a sufficient length of time before the 28th day of February, 1928, for defendant to have them erased therefrom in the manner prescribed by law for purging the poll lists of names illegally appearing thereon.

“Since Constitution of 1921, Article 8, section 5, and Act No. 122 of 1921, sections 8, 9, 11, 12 and 13, provide direct proceedings to {purge registration rolls, that voters at primary election had no right to vote because not legally registered or not entitled to registration, could not be raised by collateral attack on registration in primary election contest.”

Perez vs. Cognevich, 156 La. 331, 100 South. 444.

Whereas, as to the two votes claimed by plaintiff to have been illegally cast were not put on the registration rolls until four days before day of election, which time was entirely inadequate for plaintiff to have had them removed therefrom in the manner provided by law for purging the registration rolls before the day of election. Had plaintiff resorted to this method of having the names of Mr. and Mrs. Roy Sanders removed from the registration rolls the election must necessarily have taken place before the rolls could have been purged of their names.

'We therefore think that plaintiff had the right to contest their right to vote on the grounds set up and by pursuing the method he did in this action.

For the reasons assigned, it is therefore ordered, adjudged and .decreed that the judgment appealed from be affirmed.

ON APPLICATION FOR REHEARING.

By the Court:

The rehearing applied for cannot be entertained, under section 27 of Act No. 97 of 1922, which specifically provides:

“That no application for rehearing shall be entertained.”

And we decline to consider the case further, for the reason that- there are no manifest errors in the judgment to which our attention has been called.


author: WESTERFIELD, J.

text:
    No. 9977
    Orleans
    ARONSON v. TAYLOR DEMORUELLE AND SONS, Third Opponents
    (January 16, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Sheriffs and Constables — Par. 58; Executory Process— Par. 77; Judicial Sales — Par. 27.
    The sheriff is not authorized to collect from the adjudicatee of a judicial sale, the amount of privileged debts which outrank the claim of the seizing creditor, hence an intervenor, claiming a prior lien, is not entitled to participate in the proceeds of the adjudication when it appears that the proceeds are less than the sum due the seizing creditor.
    Appeal from Civil District Court. Hon. Porter Parker, Judge.
    Action by Morritz Aronson, original plaintiff in executory process and appellant, against Allen B. Taylor, defendant and appellant, and James Demoruelle and Sons, Inc., third. opponent and appellee.
    There was judgment for third opponent and plaintiff and defendant appealed.
    Judgment reversed.
    W. O. Hart; Legier, McEnerny & Waguespack, of New Orleans, attorneys for plaintiff and appellant.
    Emile Pomes, Chas. J. McCaleb, of New Orleans, attorneys for defendant and appellee.
   WESTERFIELD, J.

Morritz Aronson, by executory process, caused a certain piece of real estate owned by Allen B. Taylor, his mortgage debtor, to be sold by the Sheriff to J. A. Morales for $3250.00, a sum less by $250.00 than the principal of Aronson’s claim. The Sheriff retained his costs and obtained the receipt of Aron-son’s counsel for the remainder of the price of adjudication. It appears that the purchaser paid in cash the amount due the Sheriff and gave the mortgage creditor his note secured by mortgage on the property for thq balance.

At this stage of the proceedings Jas. Demoruelle & Sons, Inc., intervened by rule and asked to be recognized as the holder of a building lien superior in rank to the mortgage of the seizing creditor and that the Sheriff be ordered to pay over to it the sum of $625.28 out of the proceeds of sale “to the exclusion, of all other creditors of said property.” Among other defenses to this rule the seizing creditor pleaded the exception of no cause of action.

This defense the trial court believed ineffectual, but we are not in accord with that view.

The Sheriff did not and should not collect the amount of any prior liens upon the property. As a matter of fact he received less than was due the mortgage creditor.

In Milliken and Farwell vs. Taft Mercantile Co., 7 La. App. 150, we discussed the appropriate provisions of the Code of Practice, Arts. 679, 683 and 706, and quoted from the leading case of Bacas vs. Hernandez, 31 La. Ann. 85, the following:

“The Sheriff is not authorized to receive from the purchaser of property at a judicial sale the amount of the mortgage or privilege debts which rank the claim of the seizing creditor, and hence the sureties of the Sheriff cannot be held for the amount of such 'debts received and not accounted for by the Sheriff.”

It follows that, if the Sheriff not only was under no obligation to collect the amount of plaintiff’s claim, but, on the contrary, was not authorized to do so, if as a matter o,f fact, he did not collect any amount in excess of, but, on the contrary, less than thq sum due the seizing creditor, we cannot see where plaintiff in rule has any standing to complain of his action or to participate in the proceeds which were insufficient 'to pay the seizing creditor. Whatever rights intervenor may have as against the purchaser of the property are not pertinent to this case and we express no opinion ther'eon.

For the reasons assigned the rule herein taken by James Demoruelle & Sons must be dismissed at its cost.


text:
    No. 10,083
    Orleans
    LIDDELL v. LEX
    (February 13, 1928. Opinion and Decree.)
    (March 12, 1928. Rehearing Refused.)

      (Syllabus hy the Court)

    1. Louisiana Digest — Landlord and Tenant —Par. 59.
    The lessee is liable only for such repairs to the leased premises as are set forth in Article 2716 of the Civil Code.
    2. Louisiana Digest — Landlord and Tenant —Par. 65, 66.
    Under Civil Code Arts. 2692, 2693, lessor is liable to lessee for injuries to lessee, because of failure to keep building safe.

      3-. Louisiana Digest — Damages—Par. 104; Appeal — Par. 625.
    A judgment for two hundred fifty ($250.00) dollars for damages -to plaintiff caused by plaster falling from the ceiling will be affirmed where the -plaintiff was confined to bed. three weeks and continued to suffer from time to time thereafter.
    - Appeal from Civil District Court, Division “C.” Hon. E. K. Skinner, Judge.
    [ Action by Mrs. John W. Liddell against Louis M. Lex.
    There was judgment for the plaintiff and the defendant appealed.
    Judgment affirmed.
    H. W. Robinsqn, of New Orleans, attorney for plaintiff, appellee.
    Dart' & Dart, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

Plaintiff, a tenant under a verbal lease by the month, sues defendant, her landlord, for -five thousand ($5,000.00) dollars, damages for injuries received when plastering fell, on May, 23-, 1923, from the ceiling of dining room in house 1030 Annunciation Street.

Plaintiff avers that she was put to bed immediately after the accident, expectorated blood, suffered acute pain and great nervous shock and was under medical treatment from May 24th to August 1, 1923; that defendant was guilty of gross carelessness and negligence in not keeping the premises in repair and particularly in not having the plaster in the ceiling of the dining room maintained in reasonably sound condition.

Defendant’s answer admits lease, but denies the fall of plaster and all damages with special plea of "contributory negligence under averment that if the plaster fell as alleged, plaintiff was responsible therefor, because she refused to allow respondent to make repairs of any character to the premises during her occupancy.

Both parties prayed for a jury trial.

On the issues thus presented, the jury returned a verdict in favor of plaintiff for the sum of two hundred fifty ($2'50.00) dollars and defendant has appealed.

We give a brief synopsis of the voluminous testimony.

Plaintiff, her two daughters, Mrs. Grace Richardson and Miss E’tturia Liddell, her friend, Mrs. Keenan, and her boarder, Mr. N. R. Peart, all testify substantially as follows:

They were at supper about seven p. m. on May 23, 1923, when plaster fell from the ceiling, striking Mrs. Richardson and Mrs. Liddell, who was knocked to the floor, rendered unconscious by the blow; plaintiff was put to bed at once and was kept there by her physician for three weeks; although a small [piece of plaster had fallen from the ceiling in February, 1923, and the surrounding plaster had sagged a little, defendant had proved obdurate to all demands for repairs to the ceiling, either by flat refusals or illusory promises to attend to it laten, meanwhile assuring them he considered it safe; on the night of the accident he had been called in to see the condition of the room, but had made light of the entire matter; the physician swears he was summoned on the morning of May 24, 1923,' to see Mrs. Lid-dell, whom he found in bed suffering from hemoptysis, the technical term for spitting blood; he saw no contusions on her body and prescribed narcotics and rest; she was an elderly lady, about seventy years old, who had suffered from “bronchitis”, a disease akin to tuberculosis, and the falling of plaster from the ceiling on her back and head would cause this “hemop-tysis”; he visited plaintiff every day for about five or six times and afterwards' every three or four days for about two; months; her nervous system was “shocked” by the impact and the condition due to such “shock” lasts longer in old people; “once in a. while she still (namely on March 26, 1925), spits up blood, but very little”; this condition might be permanent; that she had a weak heart and weak lungs before the accident, which predis-' posed her to hemoptysis, but she did not have this trouble before and the deduction is that it resulted from the injury.

The testimony of plaintiff, her daughter, friend and boarder is confirmed by a photograph taken shortly after the accident, showing the broken place in the ceiling whence the plaster had fallen.

In support of his denial of the fall of the plaster and consequent injury to plaintiff, defendant offers no positive testimony to contradict the positive affirmative statement of the above named witnesses, but seeks to show by various slight discrepancies in the statements of the above witnesses that the whole charge was trumped up to satisfy the personal spite of plaintiff and her family against defendant and his daughters, between whom there had been a violent row, followed by a libel suit.

In his argument defendant' relies mainly upon two contentions, as follows:

(1) A suit against defendant similar to this, which had been simultaneously filed by Mrs. Grace Richardson, plaintiff’s daughter, for physical injuries caused by the same fall of plaster and had been tried along with this case by the same jury, had been dismissed and no appeal had been taken therefrom.
. (2) Defendant testifies that no demand was made and he knew nothing of the fall of this plaster until he received a letter from plaintiff’s attorney five months later, although he lived and conducted his baker’s shop next door to plaintiff and both she and her daughters constantly bought bread from his daughters, who handled his sales for him. In this statement defendant is partly confirmed by his daughters, who swear they had never heard of any demand on their father or any talk of plaster falling.

As the record shows that Mrs. Richardson suffered only minor injuries compared with those of her mother and as two witnesses testify that Miss Etturia Liddell had boasted to them during August, 1928, that they intended to make defendant pay, although Mrs. Richardson was not hurt, we cannot agree with the contention that the jury’s verdict for plaintiff was based entirely on sympathy for her age and infirmities. We think on the contrary that plaintiff has abundantly proved her injury as alleged.

In support of his plea of contributory negligence, plaintiff and his carpenter testify that when they called during December, 1922, at the residence of plaintiff and offered to make all needed repairs,' plaintiff said she did not need any. Plaintiff and her daughters deny this positively and certainly if she did this, plaintiff was a most unusual tenant, for it is generally taken for granted, as a foregone conclusion, that tenants want all they can get and still more from a landlord. Even if we take the statements of defendant and his carpenter on this point as true, the refusal to have a carpenter make repairs in December can hardly be said to have contributed to the fall of plaster the following May.

Defendant cites decisions in two cases, Rapon vs. Pays, 144 La. 285, 80 So. 539, and Clay vs. Parsons, 144 La. 985, 81 So. 597, but they are not applicable. In the first case the tenant, without the consent of the owner and against his express instructions, took possession of the premises, which had been seriously injured by the storm of 1915 and were at the time being repaired. In the second case the tenant had expressly agreed to repair the broken steps, which caused the injury.

In the case of Klein vs. Young, 163 La. 59, 111 So. 495, and Lasyone vs. Zenoria Lumber Co., 163 La. 185, 111 So. 670, the Supreme Court has recently held the lessor liable for injuries to lessee because of failure to keep building safe, though defect complained of was not known to the lessor.

Furthermore, the tenant is not required to make repairs to the plaster of the ceiling.

See C. C. Art. 2716.

Butte vs. N. O. Terminal Co., 139 La. 945, 72 So. 513.

Ciaccio vs. Carbajal, 145 La., 886, 83 So. 73.

For above reasons the judgment will be affirmed, but as the defendant has died since the appeal was taken and his heirs have been made parties defendant in this Court, it will be necessary to rewrite the judgment.

It is ordered, adjudged and decreed that there be judgment in favor of plaintiff, Mrs. John W. Liddell, and against Anna Leo Lex, wife of John S. Lytle, Mamie Lex, wife of Malcolm C. Pierpont, Sophie Lex, widow by first marriage of Wm. R. Smith, now the wife of Robert L. Heintz, and Wm. F. Lex, jointly as the sole and only heirs of defendant, Louis M. Lex, in the sum of two hundred and fifty dollars ($250.00), with legal interest from judicial demand until paid and all costs.


text:
    No. 10,157
    Orleans
    MURPHY IRON WORKS v. MARX AND SONS, INC.
    (March 12, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Evidence—Par. 350, 352. (Refer to Louisiana Digest — Executors and Administrators — Par. 145.)
    Stale claims long withheld from prosecution or presentation are regarded with disfavor and must be established with more than reasonable certainty.
    Appeal from the Civil District Court, Division “E.” Hon. M. M. Boatner, Judge.
    Action by John H. Murphy Iron Works, Inc., against A. Marx and Sons, Inc.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Nicholas Callan, of New Orleans, attorney for plaintiff, appellee.
    Lemle, Moreno & Lemle, of New Orleans, attorneys for defendant, appellant.
   JONES, J.

The plaintiff sues defendant for $943.67, the price of certain scrap iron which it had sold and delivered. Defendant admitted the sale and the amount due but pleaded as an offset a claim for two certain Niles filter presses received from the Nutriline Milling Company of Crowley, Louisiana, which it alleges it delivered to the plaintiff, over eleven years previous to the time that the present suit was brought. The claim of A. Marx & Sons, Incorporated, based upon this transaction, was denied by the lower court and judgment was rendered in favor of the John H. Murphy Iron Works, Inc., for the full amount prayed for.

The circumstances under which the claim of A. Marx & Sons, Inc., was brought against John H. Murphy Iron Works, Inc., for the value of two Niles filter presses from the Nutriline Milling Company of Crowley, Louisiana, are such as to require strict proof. The Marx Company, as a defense to an uncontested claim for materials sold and delivered, has sought to establish an offset for the value of two certain filter presses which it alleges were delivered to that Company in 1913. The testimony shows for eight years the Marx Company never claimed that the Murphy Company was indebted to it for these filter presses, and it was not until 1921, over eight years after the alleged transaction, that a claim was made against the Murphy Company. The claim was then rejected because no records of the Murphy Company showed a delivery of the filters. The Marx Company then did nothing for more than three years until this suit was brought against it for an admitted debt.

The negro, Alex. Mobley, who had been assistant foreman of the defendant, was the only witness who pretended to possess any independent recollection. He testified that he had gone' to Crowley and loaded the presses on the car; that he had unloaded them in New Orleans, had taken them to defendant’s place and had then carried them to Murphy’s and had seen the dray receipt signed and taken it back to the Marx Company but it was not produced.

E. J. Ponder, the Marx Company’s yard superintendent, George Irvine, the Marx Company’s bookkeeper and Isaaé Marx himself, admitted that they had no independent recollection, and were compelled to rely upon the entries in the books, which they believed to be correct. These books show that the two presses were placed on a dray and sent to defendant’s place of business on the alleged date but there are no proofs they were delivered.

The evidence shows that between 1913 and 1916 or 1917 the Murphy Company bought several filter presses from the Marx Company, all of which had been paid for. That two filter presses around the time which the Marx Company claims to have delivered the two Niles filter presses from the Nutriline Milling Company of Crowley, Louisiana, were in fact, sent' to the Murphy Company, but were examined and returned because defective', without being unloaded from the drays which brought them.

Hall, a former employee of the defendant a witness for the Marx Company, testified that he definitely' recalled that two filter presses were delivered by the Marx Company to the Murphy Company and stored on the second floor, and that these two filter presses were received during the World War. He did not recall the type of these filters nor their character, but plaintiff’s witnesses state that these two filters were not two Niles filter presses from the Nutriline Milling Company of Crowley, Louisiana, but were two Allbright presses which were sold to someone in Porto Rico. Hall further states that' prior to the delivery of the two Allbright presses two other presses, the brand of which he did not know, had come to the Murphy Company on drays, but, upon a mere slight inspection, had been rejected and ordered returned to the Marx Company without being unloaded.

Although, the evidence is conflicting, we agree with the lower court that it is not sufficient to establish the claimed set-off.

Stale claims alleged under the circumstances that the Marx Company has advanced must be supported by. strict and convincing proof.

“Stale claims, long withheld from prosecution or presentation, are regarded with disfavor, and must be established with more than reasonable certainty. (1855) Wilder vs. Franklin, 10 La. Ann. 279; (1878) Succession of Woods, 30 La. Ann. 1002; (1883) Bodenheimer vs. Bodenheimer, 35 La. Ann. 1005; (1889) Downey vs. Henderson, 41 La. Ann. 489, 6 So. 811; (1898) Succession of Rogge, 50 La. Ann. 1220, 23 So. 933; (1906) Kreumpel vs. McGraw, 4 Orleans App. 8.” (3 La. Dig. 145.)

For above reason the judgment is affirmed.


text:
    No. 3192
    Second Circuit
    MORGAN PLAN CO. v. ATES, ET AL.
    (February 3, 1928. Opinion and Decree.)

      {Syllabus by the Court)

    1. Louisiana Digest — Garnishment—Par. 86; Courts — Par. 128.
    In garnishment proceedings under an execution, the real demand in contest is the claim of the plaintiff against the defendant and garnishee.
    Gustine vs. N. O. Oil Mfg. Co., 13 La. Ann. 510.
    Buisson vs. Staats, 9 La. Ann. 236.
    Leverich vs. Dulin, 23 La. Ann. 505.
    Appeal from the City Court, Alexandria Ward, Rapides Parish. Hon. J. B. Nachman, Judge.
    Action by Morgan Plan Co., Inc., against W. C. Ates, et al.
    There was judgment for defendant and plaintiff appealed.
    Motion to dismiss appeal denied.
    F. B. Caippel of Alexandria, attorney for plaintiff, appellant.
    B. T. Dawkins, of Alexandria, attorney for defendant, appellee.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff, Morgan Plan Company, Inc., obtained judgment against defendant, W. C. Ates, in the City Court, Alexandria Ward, Rapides Parish, Louisiana, on August 26, 1927, for $109.25 with 8% per annum interest thereon from October 1, 1926, until paid, and 10% additional as attorney’s fees, and all costs of suit.

Under allegation that the Missouri Pacific Railroad Company was indebted to the defendant, W. C. Ates, in a sum not less than $200.00, plaintiff, Morgan Plan Company, Inc., procured the issuance of a fi. fa. upon its judgment and garnisheed the Missouri Pacific Railroad Company.

In answer to the garnishment the Missouri Pacific Railroad Company admitted that it was indebted to defendant, W. C. Ates, in the sum of $98.70.

Thereupon defendant, W. C. Ates, filed a (petition in the suit setting forth that the money seized in the hands of the garnishee was owing to him by it for services rendered by bim to it in the capacity of fireman and that under Article 644 of the Constitution and Act No. 184 of 1918 the money was exempt from seizure.

Defendant W. C. Ates further alleged that the seizure was illegal and that in consequence of the seizure he had been damaged in the sum of $75.00 and he reconvened against plaintiff for that amount.

And he prayed that the money garnisheed be declared exempt from seizure and the garnishment released and for judgment against plaintiff on his reconventional demand for the sum of $75.00.

On trial of the garnishment proceedings judgment was rendered declaring the money seized in the hands of the garnishee exempt and dissolving the garnishment and ordering the garnishee to pay over to the defendant the amount in its possession belonging to defendant, and reserving to defendant the right to proceed by independent action against plaintiff, to recover any damages he may have sustained by reason of the garnishment.

From this judgment the plaintiff appealed.

In this Court the defendant filed a motion to dismiss the appeal on the ground the amount in controversy or value involved in the suit is below the minimum jurisdiction of this Court.

OPINION.

The only question presented for our determination is whether in garnishment proceedings under execution the jurisdiction of the appellate court is to be determined by the amount of the claim of the plaintiff against the defendant and garnishee or by the amount that the garnishee admits having in its possession belonging to the defendant.

In Gustave vs. New Orleans Oil Manufacturing Co., 13 La. Ann. 510, our Supreme Court held, in effect, that:

“The question of jurisdiction must' be tested by the demand: in garnishment proceedings, the real demand in contestation is the claim against the debtor, and, for the like amount, over against the garnishee.
“The demand in garnishment is not to take from the garnishee any particular thing, but to discover in his hands something of sufficient value to pay a debt, the amount of which determines the jurisdiction.”

This authority, insofar as we have been able to find, has never been questioned or overruled, and it is fully sustained by the decisions in Buisson vs. Staats, 9 La. Ann. 236 and Leverich vs. Dulin, 23 La. Ann. 505.

Under these decisions this Court has jurisdiction of plaintiff’s appeal, and the motion to dismiss the appeal for want of jurisdiction rationae materiae must be denied.


text:
    No. 3129
    Second Circuit
    REDLINE v. SNODGRASS
    (March 14, 1928. Opinion and Decree.)

      (Syllabus Tyy the Court)

    1. Louisiana Digest — Landlord and Tenant —Par. 96, 97.
    Where one leases an apartment for the use of another and fails to pay the rent when due and the person for whom the apartment was rented abandons it, the lessor has just ground to fear that he may lose his privilege on the contents of the apartment and. is justified in suing out a writ of provisional seizure.
    Lalaurie vs. Woods, 8 La. Ann. 366.
    Wallace vs. Smith, 8 La. Ann. 374.
    2. Louisiana Digest — Landlord and Tenant —Par. 74, 84, 87.
    Where property is leased for a year for a definite sum payable in twelve monthly installments, and it is stipulated in the lease that if the lessee fail to pay any installment of rent at its maturity all unmatured installments shall become due and exigible if the lessee fail to liquidate the amount within ten days after receipt of written notice to do so, the lessee’s failure to pay an installment of rent at its maturity and to liquidate the amount within ten days after receipt of written notice to do so (precipitates the maturity of all unm.atured installments of rent and entitles the lessor to sue at once therefor.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. Robert Roberts, Judge.
    Action by Mrs. E. B. Redline against Thomas H. Snodgrass.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Pugh, Grimmet & Boatner, of Shreveport, attorneys for plaintiff, appellee.
    Dickson & Denny, of Shreveport, attorneys for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff sued defendant to recover the sum of $495.00, with interest thereon at the rate of 8% per annum on $55.00 thereof from April 1, 1927, and like interest on a like amount from the first day of each of the next succeeding eight months, and 10% on the amount of principal and interest, as attorney’s fees, with recognition - of an asserted lessor’s (privilege on all property to be found on certain premises in the city of Shreveport, Louisiana, leased by plaintiff to defendant for the year beginning January 1, 1927, and ending December 31, 1927, at the price of $660.00 payable in monthly installments of $55.00 each on the first day of each month during the life of the lease, being the installments of rent falling due April 1, 1927, and on the first days of the next succeeding eight months; and on making affidavit as required by law he procured a writ of provisional seizure to be issued under which the sheriff seized certain property found on the leased premises.

The lease, which is in writing, contains the following clauses among others, to-wit:

“* * * it is further agreed that if the lessee fail to pay any one month’s rent at maturity, all the unmatured rent shall become due and exigible, * * * if the lessee fail to liquidate the amount delinquent within ten days after written notice.
“It is agreed and understood that if the lessee is transferred from Shreveport, that the said lessor will release him from this lease.”

Plaintiff alleged that defendant had failed to pay the installment of rent due April 1, 1927, at maturity, or to liquidate the amount delinquent notwithstanding he had been notified in writing to do so more than ten days [prior to the institution of the suit, in consequence of which all the unmatured installments of rent had become due and exigible.

Defendant filed an exception of no cause of action, which was tried and overruled.

He then filed a plea of prematurity, which also was tried and overruled.

He then filed a motion to dissolve the writ of provisional seizure on the ground that it was improvidently issued, and he also filed an answer in which he denied receiving notice of delinquency in payment of rent until about April 23, 1927, and alleged that he had been transferred from Shreveport by his employer and under the terms of the lease was entitled to be released from his obligations thereon, and that he had paid plaintiff the rent for the month of April and tendered her a sufficient amount of money to cover the costs she had incurred in bringing this suit and had notified her that he had been transferred from Shreveport and that he intended to vacate the leased premises.

On these issues the case was tried and there was judgment in favor of the plaintiff and against the defendant as prayed for and defendant appealed.

OPINION.

It is not denied that defendant did not pay the rent for the month of April, 1927, when due, and under the unconditional terms of the lease the rent for the remainder of the lease term immediately became due and payable. The fact that defendant subsequently paid the rent for that month did not waive the breach of contract.

On April 20, 1927, plaintiff’s agents sent defendant a, written notice as follows:

“Shreveport, La., April 20, 1927.
“Mr. Thomas Snodgrass,
“Shreveport, La.
“Dear Sir:
“You are hereby notified that unless you pay the monthly rental, within ten days, which was due on April 1, 1927, pursuant to the terms of a lease from Mrs. E. B. Redline on an apartment on Coty Street, that all of the remaining monthly rentals will become due and payable.
“Yours very truly,
“MRS. E. B. REDLINE,
“By Pugh, Qrimmet & Boatner, Attorneys for Mrs. E. B. Redline.”

But defendant contends that he paid the rent for the month of April, 1927, within ten days after the demand, and thereby prevented precipitation of maturity of rent for the remainder of the term and that therefore there was- nothing due plaintiff by him and no grounds existed justifying the suit and seizure.

E. B. Redline, called by defendant as on cross-examination, testified:

“Q. Mr. Redline, didn’t Mr. Snodgrass come to your place of business and offer 1 to pay you all that he owed?
“A. Mr. Snodgrass came to my office and after the suit had been filed offered thirty-seven and 50-100 dollars, which would 'be $27.50 to finish the rent for this month and $10.00 additional as Court costs for suit which had been filed, if I would tear up the lease, and I refused it.”

It therefore appears that defendant did not make an unconditional tender of the rent due and plaintiff properly refused it, unless defendant had been transferred by his employer from Shreveport, as to which Mr. A. F. Whiting, who like defendant, was employed by the Louisiana Oil Refining Corporation and was defendant’s superior, testified that at the time of the trial as well as at the time defendant claimed he had been transferred from Shreveport by his employer he was employed in the capacity of travelling auditor with his main office in Shreveport and making his reports to his employer there.

“Q. (By the Court.) When you say he is transferred, you don’t mean transferred to another jurisdiction but transferred from one job to another?
“A. Yes, sir.
“Q. Has lie been transferred to a job which makes it more qonvenient for the company and for him to reside elsewhere than here?
“A. No.
“Q. As a matter of fact, where does he live now, in Shreveport?
‘‘A. I understand he lives in Shreveport.”

This evidence shows that the transfer relied on by defendant as entitling him to a cancellation of the lease is not such a transfer as was contemplated by that instrument, and he having failed to pay or even, to make a legal tender of the rent due within ten days after written demand was made upon him for it the rent for the remainder of the lease period thereby became exigible.

The rent was past due and the occupant ■ of the premises had abandoned it and therefore plaintiff had legal reason to fear that she might be deprived of her lessor’s privilege on the contents of the premises and was justified in obtaining the issuance of the writ of ¡provisional seizure.

Under the law and the evidence the judgment appealed from is correct and accordingly it is affirmed.


text:
    No. 2814
    Second Circuit
    GRAHAM v. McCRORY
    (March 14, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par, 625; Assault and Battery — Par. 12.
    Where the issue involved is one of fact, whether plaintiff provoked the difficulty in which he lost his eye,' the judgment of the trial court will not be disturbed, unless manifestly erroneous.
    Johns vs. Brinker, 30 Ann. 241. 2. Louisiana Digest — Assault and Battery —Par. 4. .
    An adult who is at fault in provoking a difficulty with a 12-year-old boy wherein he is injured, cannot recover damages for the acts of the boy, even though the boy was not justified in law in his conduct.
    Miller vs. Meche, 111 La. 143, 35 So. 491.
    Lide vs. Parker, 6 La. App. 648.
    Appeal from the Tenth Judicial District Court of Louisiana, Parish of Natchitoches. Hon. John. F. Stephens, Judge.
    Action by Sidney Graham against Sony McCrory.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    James W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellant.
    J. O.- Gunter, of Natchitoches, attorney for defendant, appellee.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Defendant denied liability and alleged that plaintiff was the aggressor in a difficulty provoked by himself with defendant’s son and therein received the injury complained of and for that reason could not recover.

On these issues the case was tried and there was judgment rejecting (plaintiff’s demand and dismissing his suit and he has appealed.

OPINION.

Defendant’s son, Elzy, a hoy 12 years old, was on his way home from school and he and plaintiff met and stopped at a place where an automobile was being repaired. Oma McCrory, a school-boy companion of Elzy, gave Elzy a cigarette and Elzy started to put it in his coat pocket, whereupon plaintiff said to Elzy in an offensive manner: “I am going to tell the teacher on you.” The teacher boarded at his, plaintiff’s, house.

The boy, Elzy, testified:

“He (meaning plaintiff) commenced teasing me, and he asked me how come I didn’t smoke it (the cigarette) and I told him I didn’t want to * * * He said he was going to tell the school teacher and make her whip me, and ‘get’ me for having the cigarette, and he said he was going to tell my father on me, and make the school teacher whip me * * * He kept on and I shook the stick' — I didn’t intend to throw it at mm, but it slipped out of my hand* * * He made a move and I shook the stick at him, and I didn’t intend to throw it, and it slipped out of my hand.”

The plaintiff testified:

“Q. What was the reason, if you know, that the boy struck you?
“A. I don’t know.
“Q. You had not teased him?
“A. Never did. As I came up, Oma McCrory went into Richard’s store to get a package of Chesterfield cigarettes, and he came out and walked over and gave Elzy one and he went to put it in his pocket, in his coat pocket, and I said ‘Son, why don’t you smoke the cigarette instead of putting it in your pocket’ and he said it was none of my God damned business if I do smoke it or I put it in my pocket.
“Q. What did you tell him about the cigarette?
“A. I said T am going to tell the teacher;’ I said T am going to tell the teachet’; that was about all.
“Q. About the cigarette?
“A. I said T am going to tell the teacher on you’ and he put it in his pocket.
“Q. Where did the teacher board?
“A. At my house. Of course I wasn’t going to tell it.”

Evidently Elzy thought plaintiff was endeavoring to humiliate him in the eyes of his companions and intended to have him punished by his teacher and this (provoked him to strike plaintiff in the eye. The affair was deplorable and much to be regretted, but plaintiff provoked the act by interfering in a matter that did not concern him. He was aggressor and his case falls within the doctrine that he who. is at fault and sues for damages ’resulting therefrom, cannot recover for the injuries inflicted on him, although the perpetrator was not justified in law in his conduct.

Massett vs. Keff, 116 La. 1107, 41 So. 330.

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


text:
    No. 3098
    Second Circuit
    MEYER v. REID
    (February 3, 1928. Opinion and Decree.)
    (March 14, 1928. Rehearing Refused.)

      (Syllabus by the Court)

    1. Louisiana Digest — Judgment—Par. 132, 134; Execution — Par. 168; Intervention —Par. 5.
    The judgment of a Court of competent jurisdiction must stand with all its legal consequences until set aside in a direct action. It cannot be annulled on the petition of a third opponent in the action claiming the proceeds of a sale made under a fi. fa. issued upon the judgment in the action by preference over tb,e plaintiff.
    Livaudais vs. Livaudais, 3 La. Ann. 454.
    Peychaud vs. Citizens Bank, 21 La. Ann. 262.
    Tarleton vs. Kennedy, 21 La. Ann. 500.
    Cahn vs. Ford, 42 La. Ann. 965, 8 So. 477.
    Layman vs. Succession of Woulfe, 136 La. 767, 67 South. 823.
    Asher vs. Friedenstein, 19 La. Ann. 256.
    Howe vs. Whited, 21 La. Ann. 495.
    Appeal from the Ninth Judicial District Court of Louisiana, Parish of Rapides. Hon. R. C. Culpepper, Judge.
    Action by A. H. Meyer against W. E. Reid and First State Bank & Trust Company of Leesville, intervenor, third opponent.
    There was judgment for plaintiff and third opponent appealed.
    Judgment amended and affirmed.
    Isaac Wahlder, of Alexandria, attorney for plaintiff, appellee.
    S. I. Foster, of Leesville, attorney for defendant, appellant'.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff sued defendant seeking a personal judgment against him on a promissory note for the sum of $800.00, dated March 3, 1926, payable to plaintiff’s order six months after its date, bearing 8% per annum interest after maturity until paid, and stipulating payment of 10% attorney’s fees, and paraphed “Ne Varietur” under date of March 3, 1926, by Hal T. Dulany, a notary public of Rapides parish, to identify it with a mortgage granted by defendant to plaintiff on that date on a certain automobile to secure its payment, and also seeking to have the mortgage foreclosed and the automobile sold for the satisfaction of the judgment.

And alleging that the defendant had left the state of Louisiana and was now a resident of the State of Texas, plaintiff asked that a curator ad hoc be appoined to represent the defendant.

The prayer of the petition is for a personal judgment against the defendant for the debt and for recognition of the mortgage on the automobile and ordering the latter sold for the satisfaction of the judgment.

J. B. Nachman was appointed curator ad hoc and accepted the appointment and he also accepted service of the petition and waived citation.

The curator ad hoc filed an answer putting thq allegations of the petition at isstie and on trial a personal judgment was rendered in favor of the plaintiff and against the defendant for the amount of principal and interest of the note and 10% additional as attorney’s fees, less certain credits, and also recognizing plaintiff’s mortgage on “one Studebaker Special Six Brough car, 1925, model, serial number 3138526” and ordering it to be sold for the satisfaction of the judgment.

Intervenor and third opponent, First State Bank & Trust Company of Leesville, filed a petition of intervention and third opposition in the suit, alleging that on or about January 15, 1927, the Exchange State Bank had instituted suit against the defendant, W. E. Reid, to recover judgment against him on a promissory note for $4000.00 and had procured a writ of attachment against his property to be issued therein under which the sheriff had seized the automobile described in plaintiff’s judgment; that intervenor and third opponent became the owner of the suit and was substituted as plaintiff therein and on March 3, 1927, judgment was rendered in its- favor and against W. E. Reid for $4000.00 with 8% interest thereon from March 25, 1926, until paid, and 10% thereon as attorney’s fees, and sustaining its writ of attachment.

And intervenor and third opponent further alleges that at the time the writ of attachment was sustained the automobile in question was in the possession of the sheriff in virtue of the writ, and that on the day the judgment was rendered it caused a fi. fa. to issue upon the judgment directing the sheriff to sell the seized property, but that owing to the fact that defendant, W. E. Reid, had permanently left the State of Louisiana the fi. fa. could not then be executed, and that on April 2, 1927, a curator ad hoc was appointed to represent the absentee and on that day the sheriff was instructed to proceed with the execution of the fi. fa. issued on intervenor and third opponent’s judgment, and that intervenor and third opponent then learned of the existence of plaintiff’s judgment and that the sheriff had also seized the automobile under the fi. fa. issued thereon.

And intervenor and third opponent further alleges the sheriff declared his intention to sell the automobile under the fi. fa. issued upon plaintiff’s judgment and not to sell it under that one issued upon intervenor and third opponent’s judgment.

And it alleged that the mortgage granted by defendant to plaintiff on the automobile and the judgment in favor of plaintiff and against defendant were null and void because (1) the mortgage does not describe the automobile seized; (2) intervenor and third opponent was not a party to the suit; and (3) the defendant was at the time the suit was begun and is still an absentee.

It prayed judgment annulling plaintiff’s judgment against defendant insofar as it might conflict with that of intervenor and third opponent and ordering payment of its judgment out of the proceeds of the sale of the automobile by preference over plaintiff.

By order of Court the proceeds of the sale were impounded in the sheriff’s hands to await the result of the trial of the intervention and third opposition.

Plaintiff filed an exception of no cause of action and also a plea of estoppel to the petition of intervention and third opposition. On trial the exception of no cause of action was overruled and the' plea of estoppel sustained and the petition of intervention and third opposition dismissed and the sheriff ordered to pay plaintiff’s judgment out of the proceeds of the sale of the automobile in his hands in preference to intervenor and third opponent. Intervenor and third opponent has appealed.

OPINION.

It is intervenor and third opponent’s contention that the District Court was without jurisdiction to render the judgment in favor of plaintiff and against defendant for the reason that a personal judgment cannot be based upon service upon a curator ad hoc and that the judgment is not valid even as one in rem because there was no previous seizure of the automobile to give the Court jurisdiction; that in any event the description of the automobile in the mortgage was insufficient to create a valid lien quo ad third persons; that if plaintiff acquired any lien thereon 'it was only by and dated from the levy of his fi. fa., at which time the automobile was already under seizure under intervenor and third opponent’s writ of attachment; that on the sustaining of the writ its lien related back to the date of its levy, entitling intervenor and third opponent to the proceeds of its sale in ¡preference to plaintiff anyhow.

We find it unnecessary to go into the interesting questions raised by intervenor and third opponent, for the reason that it is the settled jurisprudence of Louisiana that they cannot be urged by way of intervention and third opposition.

One cannot assail a judgment as null and also ask to be paid the proceeds of a sale of property made thereunder.

“A party cannot claim the nullity of a judicial sale and the fruits of the sale in one and the same action.”
Tarleton vs. Kennedy, 21 Ann. 500.
“A third opponent cannot be permitted to aver the nullity of the judgment under which property has been seized, and at the same time claim the proceeds of the sale made under that judgment.”
Provosty vs. Carmouche, 22 Ann. 135.
“It is settled beyond dispute that an intervenor must take the suit as he finds it, and cannot complain of the form of action, or of informalities or defects in the proceedings between the original parties.”

Intervenor and third opponent complains that notwithstanding its writ of attachment was levied on the automobile before plaintiff’s fi. fa. was levied thereon the sheriff refused to sell it under its writ and declared his intention to sell it under plaintiff’s fi. fa. and assigns this as rendering it necessary that he assert its rights by means of intervention and third opposition in plaintiff’s suit.

We do not think intervenor and third opponent was without other remedy in the premises. Mulling vs. Jones, 164 La. ( — ); 114 Southern Reporter 725 (Advance Sheets, No. 13, January 14, 1928).

But be that as it may, we know of no exception to the rule that you may not at the time assail the validity of a judicial proceeding and claim a benefit under that proceeding, as intervenor and third opponent is seeking to do by its third opposition.

However, we think the District Court erred in not sustaining plaintiff’s exception- of no cause of action filed to the petition of intervention and third opposition, and for this reason the judgment appealed from must be modified.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be amended and that the plea of no cause of action filed by plaintiff to intervenor and third opponent’s petition of intervention and third opposition be sustained and that in all other respects the judgment appealed from be affirmed.

The District Court erred in not sustaining the exception of no cause of action, and for this reason the judgment must be reversed.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the exception of no cause of action filed by plaintiff, A. H. Meyer, to the petition of intervention and third opposition of the First State Bank & Trust Company of Leesville be sustained and the petition dismissed; the costs of the District Court to be paid by intervenor and third opponent and those of this Court by plaintiff, for the reason that in directing the sheriff what disposition to make of the proceeds of the sale of the automobile the judgment appealed from was on the merits.


text:
    No. 3084
    Second Circuit
    DAVIS v. HERRIN TRANSFER & WAREHOUSE CO.
    (March 14, 1928. Opinion and Decree.)

      (Syllabus by the Court)

    1. Louisiana Digest — Appeal—Par. 521, 625; Warehousemen and Warehouse Receipts — Par. 11.
    In a suit by a bailor against a bailee for the value of goods alleged to have been converted to its own use by the latter and the bailee reconvenes against the bailor for storage charges and the evidence adduced on trial was insufficient to enable the Court to render a judgment on the merits that would do justice to both parties, a judgment dismissing, as in case of non-suit, the demands of both parties, will be affirmed on appeal.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo. Hon. T. F. Bell, Judge.
    Action by John W. Davis against Herrin Transfer & Warehouse Company, Inc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Looney & Logan, of Shreveport, attorneys for plaintiff, appellant.
    Robert L. Garrett, of Shreveport, attorney for defendant, appellee.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff, John W. Davis, sued defendant, Herrin Transfer & Warehouse Company, Inc., for $776.00, as the value of certain household goods alleged to have been delivered to it by him to be stored and which, he alleged, it refused to return to him on demand, and for $150.00 for alleged wrongful detention of the property.

Defendant filed a plea of vagueness and on trial it was sustained and plaintiff ordered to make his petition more certain.

Plaintiff thereupon filed an amended petition.

Defendant filed an exception of no cause of action to the original and amended petition and on trial the exception was overruled.

Reserving its rights under its exception defendant filed an answer denying the allegations of the petition and alleging that it leased a certain warehouse formerly leased and occupied by the Interstate Transfer & Warehouse Company and found therein certain household goods, the ownership of which was unknown to it .at the time and that it subsequently learned they belonged to the plaintiff; that it kept the goods in storage in its warehouse from April 1, 1923; that a reasonable charge for the storage is $10.00 a month; that plaintiff was indebted to it for such storage charges for the time from April 1, 1923, to May 15, 1926, in the sum of $375.00, and at the rate of $10.00 pet month for each month thereafter until the termination of the suit. Defendant admitted that plaintiff had demanded the return to him of certain of the stored articles and alleged that plaintiff did not pay or offer to pay in cash or make a legal tender of the storage charges.

And defendant reconvened against plaintiff for $375.00, storage charges from April 1, 1923, to May .15, 1926, and. for storage charges at the rate of $10.00 per month from May 15, 1926, until the termination of the suit, with legal interest from judicial demand and recognition of its privilege as warehouseman on the goods.

On these issues the case was tried and there was judgment dismissing, as in case of non-suit, both the demand of plaintiff and the reconventional demand of defendant, and the plaintiff appealed and defendant has answered the appeal.

OPINION.

The Interstate Transfer & Warehouse Company, had on storage in its warehouse, certain household goods belonging to plaintiff. It became defunct and vacated the premises occupied as a warehouse. Defendant leased the premises and found therein unclaimed, the household goods whose owner was unknown to it. This was on or about April 1, 1923. It subsequently learned that the goods were the property of plaintiff. The goods remained in storage, and on or about January 9, 1926, plaintiff demanded the return of the goods or some of them without paying or offering to pay in cash or making a legal tender of the storage charges, and, failing to get them, brought this suit for their alleged value and defendant reconvened for storage charges.

The evidence adduced on the trial was too vague and insufficient to enable the Court to render judgment on the merits that would do justice to both parties and he dismissed both plaintiff’s demand and defendant’s reconventional demand as in case of non-suit. After reading the record we are of the opinion of the district judge, that it is insufficient to enable a judgment on the merits of the case that would do justice to both parties to be rendered thereon. The record does not show with any degree of certainty exactly what property belonging to plaintiff came into the possession of the defendant when it took over the former warehouse of the defunct Interstate Transfer & Warehouse Company or the value at that time or at the time of the trial in the Court below of the goods claimed by plaintiff to have been so received by defendant. We are therefore of the opinion that the judgment dismissing as in case of non-suit the demands of both plaintiff and defendant in reconvention is right and accordingly it is affirmed.


author: ELLIOTT, J.

text:
    No.-
    First Circuit
    FERTILIZER WORKS v. KITTREDGE
    (January 5, 1928. Opinion and Decree.)
    (February 15, 1928. Rehearing Refused)
    (April 9, 1928. Writs of Certiorari and Review Denied by Supreme Court.)

      (Syllabus 6y the Editor)

    1. Louisiana Digest — Appeal—Par. 625; Obligations — Par. 183; Bills and Notes —Par. 243.
    The finding of the trial court that “ground tankage” had been delivered in execution of a contract for which the promissory note had been given within the meaning of the. contract and Act 136 of 1898, being clearly correct is affirmed.
    2. Louisiana Digest — Obligations—Par. 50, 67.
    An agreement between the parties as to the time objections might be urged to the fertilizer, cannot set at naught the positive enactment of the law, Act 136 of 1898.
    Appeal from the District Court, Parish of Assumption. Hon. Sam E. LeBlane, Judge.
    Action by Armour Fertilizer Works, Inc., against W. E. Kittredge.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Walter Lemann, of Donaldsonville, attorney for plaintiff, appellee.
    Ivy G. Kittredge and Geo. S. Guión, of New Orleans, attorneys for defendant, appellant.
   ELLIOTT, J.

Armour Fertilizer Works, Inc., instituted suit against Dr. W. E. Kittredge on a promissory note for $1227.25 executed by him in its favor.

The defense is that the note is without consideration; that it was executed in compliance with an agreement that it be given in consideration of a shipment of fertilizer called “Ground Tankage” which was to contain eight percent ammonium and fifteen percent bone phosphate. That plaintiff delivered the quantity stipulated, but not the fertilizer ordered and purchased, and which the plaintiff undertook to furnish him.

That the shipment was not “ground tankage” but a mixture of tankage and acid phosphate, ammonium, sulphate and sand, the same containing about sixty percent sand. That the shipment was in violation of the agreement; that defendant thought and believed in signing the note, that he had received ground tankage, the article ordered. That the shipment was “fraudulent fertilizer” within the sense and meaning of Act 126' of 1898; that defendant is therefore not bound to pay for same.

The note sued on is for fertilizer shipped in December, 1912, in pursuance of a written agreement. This agreement' states the amount of ammonium and bone phosphate which the tankage is to contain. It provides that plaintiff is to sign and send a note in payment. The fertilizer was put down on plaintiff's plantation as a fertilizer for cane and thereafter he executed the note sued on, and sent it to plaintiff. While the fertilizer was being put down and before the note was given, Mr. Reed, defendant’s overseer, testifies that he grew suspicious of the fertilizer. He held back a sack, and subsequently took out of it about a gallon of its contents and washed it. He testified that in quantity it was about half sand. He reported this to defendant but defendant did not credit his statement. Defendant says that he did not credit his overseer’s report, because of his confidence in plaintiff as a manufacturer of fertilizer, and his reliance in the State officials at Baton Rouge. He believed that these officers had inspected the fertilizer, and would not have passed it, if it had not been all right.

But some months afterwards he says that he heard complaints by other planters and became uneasy. He took a portion of the contents of the sack that had been kept by Mr. Reed and washed it himself, and found that the contents were about half sand. He then took two more parcels out of the sack and sent one to Dr. Metz of New Orleans, and the other to Dr. Dodson of Baton Rouge, requesting that same be analysed. He admits in his testimony that they each sent him a certificate showing the result of their analysis of the packages sent them. This was before this suit was filed and several years before it was tried.

The plaintiff, on the trial, offered the note sued on; the defendant then offered the testimony of himself and that of Mr. Reed, and established that “ground tank-age” was a product which does not contain sand, but he did not offer in evidence the certificates which he admits that he received from Doctors Dodson and Metz showing the chemical analysis of the fertilizer in question nor show the result of their examination; nor did he explain why it was not done.

The defense presents a strong argument on the law of Act 136 of 1898 and the Constitution of 1898, Art. 306.

We hold with the defendant, that his averments, that the fertilizer delivered to him was not “ground tankage” nor what he had stipulated for, nor what plaintiff had represented it to be, but fraudulent fertilizer within the meaning of Act 136 of 1898, was sufficient to justify the admissibility of evidence to show that the shipment was, in fact, fraudulent fertilizer, within the meaning and intent of the law referred to.

The estoppel, pleaded by the plaintiff, based on the fact that the contract signed by plaintiff and defendant stipulated that objections to the fertilizer were to be made within ten days, is not good in this case, because of the effect of the law, Act 136 of 1898.

The agreement of the parties as to the time when objections might be urged to the fertilizer, can not set at naught the positive enactment of the law, which intends that evidence shall be admissible in the interest of the public welfare and ‘ good, for the purpose of showing defensively under proper averments that the fertilizer is fraudulent within the sense and meaning of the law.

But after considering the evidence in the case and the various facts and circumstances disclosed by the record we are not satisfied that the district judge erred in rendering judgment in favor of plaintiff as prayed for on the theory that the fertilizer was “ground tankage” within the sense and meaning of the contract and of the law, Act 136 of 1898.