author: Monroe, J.

text:
    No. 13,569.
    State ex rel. Joseph Conrad et als. vs. Mayor and Council, of New Orleans.
    Syllabus.
    1. Article 319 of the Constitution contemplates that the electors of the City of New Orleans shall choose the officers charged with the exercise of the police power, and with the administration of the affairs of said city, in whole or in part (subject only to such exceptions as may be found in the Constitution itself), when vacancies occur, as well as at other times, and Section 73 of Act 45 of 1896, the operation and effective force of which was, at that time suspended, “ceased” entirely, upon the adoption of the higher law, by reason of its antagonism thereto, and never, thereafter, took effect, so that Section 56 of Act 20 of 1882 remained unrepealed, and is the present law providing the mode of filling vacancies in the Council of New Orleans.
    2. A mandamus will lie to the Mayor and Council to compel the ordering of an election to fill a vacancy in the Council as provided by said section.
    APPEAL from the Civil District Court, Parish of Orleans. — ■ King, J.

      George J. Uniereiner for Plaintiffs, Appellants.

      Samuel L. Gilmore for Defendants, Appellees.
   The opinion of the court was delivered by

Monroe, J.

The relators in this case are qualified voters and taxpayers of the Tenth Ward of the City of New Orleans. They allege, that at the municipal election, held upon November 7th, 1899, councilmen were elected to represent the different wards, or representative districts, of the city, and that, among them, Ferdinand Reusch, Jr., was elected to represent the Tenth Ward; but that said Reusch was thereafter interdicted, and was, for that reason, and is now, unable to qualify, and that the Tenth Ward is, therefore, without a representative in the municipal Council. They further allege that they have presented a petition to the Mayor representing that they, and the other qualified electors of said Tenth Ward, have the right, under Articles 319 and 320 of the Constitution, to elect a representative in place of said Reusch, and that they have presented a (petition to the Mayor praying that an election be ordered for the purpose, but that the Mayor has declined to comply with said prayer, and has informed relators that a substitute for, or successor to, said Reusch would be elected by the other members of the Council, and that relators are informed and believe that such action will be taken by said members of the Council, claiming to act under the authority of Section J9 of Act 45 of 1896. Relators further allege that said section is, and always has been, without legal effect, for the reason that it was repealed and annulled by the Constitution of 1898, and is in contravention of Articles 319 and 320 of said Constitution. Relators further allege that the proposed action of said Mayor and Council will leave the Tenth Ward, which is one of the most populous in the city, without representation in the municipal legislative body which is vested! with power to levy taxes and disburse the same and otherwise administer the government thereof, and that they are entitled to the writ of mandamus, to compel the said Mayor and Council to order an election in said ward, to the end that such want may be supplied. By supplemental petition, relators aver that they were in error in alleging that Ferdinand Reusch, Jr., had been interdicted, but that the fact is that he was insane beffore the election, and has been so over since, ahd is confined in a retreat, and that proceedings for his interdiction have been filed, and a temporary curator appointed, and that a committee of the Council has reported that he is notoriously insane, and that a vacancy exists in the office to which he was elected.

The Mayor of New Orleans and the members of the City Council, for answer and return, admit that Ferdinand Reusch was elected to the Council to represent the Tenth Ward, as alleged; that he is notoriously insane; that 'a vacancy exists in the office to which he was elected; that the Tenth Ward' is without a representative in the Council, and that the vacancy should be filled. They further admit that the Council was about to fill such vacancy in the manner provided by Section 79 of Act 45 of 1896 (the charter of the city), i. e., by the election viva voce, by the other members of the Council, of a citizen having the qualifications required for the 'office. They allege that there is no law making it their ministerial duty to order an election as prayed for by the relators, but that it is made their ministerial duty by the law under which they propose to act, to fill said vacancy in the manner, contemplated; that Article 319 of the Constitution has no application to vacancies in public offices in New Orleans; that Article 171 provides that the General Assembly shall determine how all vacancies shall be filled; that Section 79 of Act 45 of 1896 makes such provision with reference to the office in question and has not been repealed or annulled; and in the absence of any other law, is continued in force by Article 325 of the Constitution. Respondents further aver that the Civil District Court is without jurisdiction rations materiac. and they pray that relators’ application be dismissed.

The facts, as thus set forth in the pleadings, are admitted, and this court is called upon to deal only with the controverted questions of law which are presented. The objection to jurisdiction does not appear to have been urged in the court a qua, is not urged here, and is, presumably, abandoned.

Section 79 of the present city charter (Act 45 of 1896) reads as follows, to-wit:

“Section 79. Vacancies occurring in the office of councilmen, or recorder shall be filled by election, viva voce, by the Council, of a citizen having the qualifications required for such office, and such person shall serve for the unexpired term of the office.”

At the time that this law was adopted (July, 1896), the affairs of the city were administered by officers who had been elected in April, 1896, agreeably to the provisions of the then existing charter (Act No. 20 of 1882), and who were to hold office for four years. Under that charter, provision was made for filling vacancies in the Council as follows:

“Section 56. Vacancies occurring among the councilmen shall be filled at once by election. In such a case, it shall be the duty of the Mayor, and, in case of failure on his part, of the Council, to at once order an election to fill the same; said vacancy to be filled in the same manner and by the same constituency that had elected the former holder of a seat in the Council.

In 1898, a vacancy occurred in the Council by reason of the resignation of one of the members, and it was proposed to fill it by viva voce election by the Council, as provided in the Act of 1896, but some of the constituents of the member who had resigned applied, as the relators in this case have done, for a mandamus to compel the ordering of an election under the Act of 1882. In considering the case, thus presented, this court found, comparing and construing the two acts together, that the provision in the act of 1896 as to the manner of filling vacancies in the office in question was not intended to apply to offices which had been originally filled by election under the Act of 1882, but that its operation was suspended until the expiration of the terms of such offices, and that vacancies occurring during such terms were to be filled in the manner prescribed by the Act of 1882, and the mandamus was made peremptory.

The language of the opinion was, in part, as follows, to-wit:

“So long, therefore, as the present Council holds office, vacancies occurring therein are to be filled pursuant to the provisions of the old law, and Section 79 of the Act of 1896, providing a different mode of filling vacancies, is held suspended in its operation until the happening of the condition that alone can give it potency and force, vie: the election of a npw Council, under the provisions of the present municipal charter.”

In reaching this conclusion, however, it was stated in the opinion that the .question of the constitutionality of the mode of filling vacancies provided by Section 79 of the Act of 1896 was pretermitted, as unnecessary to the decision of the case. State ex rel. Kinberger vs. Mayor, 51st Ann., 99.

It follows from this that the section in question, whilst a law in some sense (unless void by reason of its contravening the Constitution of 1879), was without force or effect and was condemned to remain in a condition of suspended vitality until after the election as provided by the city charter of 1896, and that election having now been held, and the vacancy which it is proposed to fill having occurred among the officers thus elected, said section must find its application, unless the question of constitutionality, which was pretermitted in the case of Kinberger, stands in the way.

The members of the present City Council, though elected in November, 1899, by virtue of the express provisions of the Constitution, Article 207, were inducted into office in May, 1900, and will hold tKe same for four years from the latter date. The Council is a body composed of one member from each of the fifteen representative districts into which the city is divided, and two additional members, elected at large from the First and Fourth Municipal Districts, respectively. The Tenth Ward, constituting the Tenth Representative District, is situated in the Fourth Municipal District, and is entitled to one representative to be elected by the qualified voters of the ward, and who must be an actual resident within its limits, and to further representation by the councilman elected at large for the Fourth Municipal District, who may be a resident of either of the three wards composing that'district. It is admitted that there is a vacancy in the office of councilman for the Tenth Ward, resulting from the inability to qualify of the person who was elected, and, as no other election has ever been held under the present law and the present subdivision and assignment of representatives, it follows that the office has never been filled; and it also follows that, if it is filled in the manner proposed by the respondents the citizens and electors of the Tenth Ward will, for the next four years, labor under the disadvantage of being governed, so far as municipal affairs are concerned, by a legislative body composed of members chosen by other constituencies, together with a member, elected by the other members, to represent them. In other words, that they will be denied the right to choose their own representative, except in so far as it may be said that they exercise that right in choosing the representative from the Fourth Municipal District. This is as much a denial of representation as though the members of the General Assembly from one parish were elected by those from the other parishes, or as though the members of Congress from one State were elected by those from the others; and it amounts to no representation at all, since no people can be said to be represented, in the sense in which the term is understood for the purposes of a Republican government, who have no voice in the selection of the person designated to represent them, and especially is this true where that person iá selected by ihose having, perhaps, conflicting interests to subserve. The question, then, is, does the legislation relied on effect this result?

Prior to the adoption of the present Constitution, the authority of the General Assembly with respect to the establishment of municipal corporations, generally, was, no doubt, very extensive, but there has been a saving clause in all the Constitutions of this State, with the exception of that of 1868, whereby certain rights have been reserved to the people of New Orleans, and that clause was distinctly broadened and made more effective by the convention which adopted the present Constitution, in which are to'be found the following provisions, to-wit:

Article 319. The electors of the City of New Orleans, and of any political corporation which may be established within the territory now, or which may hereafter be, embraced within the territorial limits of said city, shall have the right to choose the public officers who shall be charged with the exercise of the police powers, and with the administration of the affairs of said corporation, in whole, or in part.”

Article 320 excepts from the operation of the foregoing provisions, the Board of Liquidators of the Oity Debt, and Boards of Commissioners, the members of which may be elected by the Council or appointed by the Mayor, as also certain other boards. There is no exception, however, in regard to the members of the Council, and it is a significant fact that the article cited above is broader, and at the same time more specific, than that which was contained in the Constitution of 1879, in that Article 253 of the Constitution of 1879 secures to the citizens of New Orleans, the right to appoint “the officers necessary for the administration of the police of said city pursuant to the mode of election whiah shall be provided by the General Assembly ” whilst the present article provides that the "electors * * * shall have the right to choose the public officers who shall be charged with ihe exercise of the police powers and with the administration of ihe affairs of said corporation in whole or in part;” the clause reading “pursuant to the mode of election which shall be provided by the General Assembly” being omitted. A reason for these changes may readily be found in the fact that it had not been altogether settled how far the reservation of right under the terms of the preceding Constitutions extended beyond officers “necessary to the administration of the police” giving to the word “police” a restricted signification; hence, in the Constitution, the language “charged with the exercise of police powers, and with the administration of ihe affairs of said'corporation, in whole ofr in pari,” was used. Again, the last clause of Article 253 of the Constitution of 1879— “pursuant to the mode of election which shall be provided by ihe General Assembly” — led to the conclusion that what the citizens of New Orleans were reserved the right to do, could, under the authority of the General Assembly, be as well and as lawfully done, by a Council, the members of which had been elected by such citizens, and hence, it was held that the City Council could properly elect and re-elect the members of the Board of Police Commissioners (State vs. City, 41st Ann., 156). In the new Constitution, therefore, the language upon which that construction was based was omitted, so that the officers with the exceptions specifically mentioned, are to be chosen by the electors, themselves, and not by their representatives, in Council assembled.

It will be remarked that nothing appears in the article which we are considering, as to the mode of filling vacancies. It certainly will not be denied, however, that a person who goes into the Council to take the place of one who, having been legally elected, is unable to qualify, and who participates in the official action of that body, is “an officer charged with the exercises of the police powers, and with the administration of the affairs” of the corporation, within the meaning of the Constitution. And, for the purposes of the question of the right of the electors, whom he is supposed to represent, to a voice in the selection of such x>erson, it is wholly immaterial whether he goes into the office to fill a vacancy occasioned by sickness, death or resignation, or to fill a vacancy occasioned by the expiration of the term of his predecessor, or to fill an office newly created, and to which no one has ever, previously, qualified. In the instant case, the office of representative from the Tenth Ward, as created by the Act of 1896, has never yet been filled by anyone, and if it is now filled in the manner proposed by the respondents the incumbent will occupy the unique position of serving the entire term of an office which has been vacant from the beginning of its creation; of representing a! constituency who will have had no voice in his selection; and, without having' been so chosen, of participating in the administration of the affairs of a city, the electors of which have the constitutional right to choose all officers discharging such functions.

As a matter of course, there might be other articles in the Constitution, besides Article 320, which it would be necessary to interpret with Article 319. In fact we have found that to be the case. Thus, Article 167 provides that “vacancies occurring from any cause in the judicial offices in the Parish of Orleans, shall be filled by axrpointment of the Governor, by and with the advice and consent of the Senate,” etc. And, when it became necessary to reconcile this article with Article 319, it was held that it should be simply read into the latter article, as an exception to the rule, there laid down, that officers shall be chosen by the electors. Both articles relate to the same subject matter, to-wit: The manner of selecting officers in the City of New Orleans. The one is general in its terms, and embraces all officers exercising- certain general power's, as also the mode of filling the offices held by them; the other is particular and specific, and applies only to certain among the officers included in the general provisions, and only to the mode of filling the offices, held by them, in cases of vacancy. There was no difficulty, therefore, in giving to each article its proper application, the general provisions of the one being, pro Lanío, modified by the particular provisions of the other.

It is proper to say, in this connection, and in justice to our learned brother of the District Court, who has denied the application of the relators, partly, perhaps, by reason of an unguarded expression in the opinion in the matter of State vs. Grandjean, 51 Ann., 1102, that the immediate question then being considered related to the filling of a vacancy in a judicial office in the City of New Orleans, for the purposes of which Articles 157 and 319 were construed, and it was said that the sole function of Article 157 was to provide therefor, whilst Article 319 did not “deal with or mention vacancies at all.” The more correct way of stating it would, no doubt, have been to say that the application of Article 157 was particular and specific as to the question at issue, and that of Article 319 general, and hence, that the former controlled in the case then before the court.

The learned counsel for the respondents argues that these familiar rules of interpretation should be applied in construing together Articles 319 and 171, which latter article reads:

“The General Assembly may determine the mode of filling vacancies in all offices, for the filling of which provisions is not made in this Constitution.” But, in order to arrive at the conclusion upon which he insists, the rules invoked would have to be inverted. Article 171, as compared with Article 319, is general, whilst Article 319 is particular. The one refers to all vacancies throughout the State, not otherwise provided for; the other refers to the filling of offices of a certain character in the City of New Orleans alone, and is couched in'language which carries the conviction that it¡ was the intention of the framers of the Constitution to secure to the electors of the .city, themselves, the right, under any and all circumstances, to choose the persons to fill those offices. If there could be any doubt upon this subject, it would be removing by recalling the fact that the convention of 1898 studiously omitted, frdm the present Constitution, the concluding language of Article 253 of the Constitution of 1879, under which it had been held that the General Assembly might vest the power to make such choice in a Council elected by the people, and that a choice by such Council was equivolent to a choice by such electors. Ancl, also, by considering that Article 320 of the present Constitution specially provides, as exceptions to the rule laid down in Article 319, for cases in which certain officers (members of certain Boards or Commissions) may be elected by the Council, or appointed by the Mayor with the consent of the Council.

It is said that the electors of the Tenth Ward should not be allowed to choose a representative because Article 207 of the Constitution provides that “in the City of New Orleans, parochial and municipal elections shall be held on the Tuesday following the first Monday of November, 1899, and every fourth year thereafter; and that there is no authority for holding an election for municipal officers in the meanwhile. This article refers to the general parochial and municipal elections, and has no application to the filling of vacancies.

It is further argued that the vacancy must be filled agreeably to the provisions of Section 79 of the present city charter, because there would, otherwise, be no law, under which action could be taken, and, without such law, Article 319 of the Constitution would be inoperative, and we are referred to the third paragraph of Article 325 of the Constitution, which reads:

“The provisions of all laws which aré inconsistent with this Constitution shall ’cease upon its adoption, except that all laws which are inconsistent with such provisions of this Constitution as require legislation to enforce them dhall remain in full force until such legislation is haa.'

For the reasons which have been stated, Section 79 of Act 45 of 1896 is inconsistent with the present Constitution, and, therefore, “ceased” upon the adoption of that instrument, if the word “ceased” can be properly applied to a statutory provision which had never become operative; and it could now be given effect, only upon the theory that Article 319 requires legislation for its enforcement. But the conditions existing at the date of its adoption were such that Article 319 requires no such legislation. The City of New Orleans was then provided with a form of government under which the officers referred to therein were elected as contemplated by the article, and under which, as was decided in the Kinberger case, vacancies in such offices were required to be filled in the same manner. The law applicable to the latter subject, and the only law, then, actually in force, was Section 56 of Act No. 20 of 1882.

This court said upon that subject in the ease mentioned: “So long, therefore, as the present Council holds office, vacancies occurring therein are to be filled pursuant to the provisions of the old law, and Section 79 of the Act of 1896, providing a different mode of filling vacancies, is held suspended in its operation until the happening of the condition, that, alone, can give it potency and force, viz: The election of a new Council, under the provisions of the present municipal charter.”

Section 56 of the Act of 1882 had not, then, been repealed, and its repeal would have been effected by Section 79 of the Act of 1896 — only when the latter became operative, to-wit, after the municipal election in November, 1899. In Hay, 1898, however, the present Constitution was adopted, and said section “ceased,” by reason of its antagonism to that instrument, even assuming that it was not void, ab initio, by reason of antagonism to Article 253 of the Constitution of 1879. It has, therefore, never taken effect, and Section 56 of the Act of 1882 is still in force, and unrepealed; and, its provisions being plain and mandatory, they should be complied with.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided, and reversed, and that there now be judgment in favor of the relators, directing the issuance of a peremptory writ of mandamus, commanding the respondent, the Mayor of New Orleans, and, in the alternative, the Council of the said city, to order an election, agreeably to the provisions of Section 56 of Act 20 of 1882, to be held in the Tenth Ward of said city, to fill the existing vacancy in the office of councilman from said ward. It is further ordered, adjudged and decreed, that the respondents pay the costs of this proceeding.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,204.
    F. L. Richardson, Receiver of the American National Bank vs. Sumpter Turner and Edward Weil, Syndics of M. Schwartz & Co. et als.
    Syllabus.
    1. It is essential a judgment rendered should be read in open court, and where it does not appear from its recitals, or from the court’s minutes, that it was or had been read, it will be set aside.

      2. A receiver of an insolvent national bank may apply to a court of record of . competent jurisdiction for an order to sell stocks and bonds in pledge in bis hands.
    3. Not necessary for him to obtain formal authorization of the United States Comptroller to make the application. Nor is it essential that he should, likewise, have the formal authority of the comptroller to sell.
    4. A suit by the pledgee to obtain an order to sell the stocks and bonds pledged is properly brought agamst the syndic of the insolvent pledgor.
    D. The fact that a creditor holds in pledge certain securities or property as guarantee of his claim does not render him ineligible to attend a creditors’ meeting, nor militate against his proving his claim and voting for a syndic. And by thus taking part in the creditors’ meeting, he Coes not forfeit his right of pledge, even though he make no statement or declaration concerning the security he holds, and stipulates for no special reservation of his rights touching same.
    6. The homologation of the proceedings of a creditors’ meeting to accept the cession and elect a syndic, is not to be given the force of an adjudication on all questions of privilege and pledge as between the crditor claiming it and other creditors.
    APPEAL from the Civil District Court, Parish of Orleans — Theard,

      Wranh L. Richardson and William O. Cochran for Plaintiff and Appellee.

      Lazarus & Luce for Defendants and Appellants.
   The opinion of the court was delivered by

Blanchard, J.

When the American National Bank failed and a receiver thereof was appointed, M. Schwartz & Company, and the individual members of that firm, Moses Schwartz and Meyer G. Weil, owed it a large sum of money represented by overdrafts on the bank, and by promissory notes executed by Schwartz & Co., and by M. G. Weil to the order of, and indorsed by Schwartz & Co.

Certain shares of stock of the Schwartz Foundry Co., Limited, and of other corporations, and certain bonds of the Teche Railroad and Sugar Company had been pledged to the bank to secure the indebtedness.

The firm of M. Schwartz & Co. failed and Sumpter Turner and Edward Weil were ichosen as syndics thereof, and of the individual members of the firm.

The receiver of the American National Bank attended the meeting' of the creditors of the firm, proved the claim of the bank and voted in the insolvent proceedings to accept the cession and for the appointment of the syndics.

Finding it necessary to realize on| the collaterals pledged to the bank, the receiver brought the present action against Turner and Wiel, syndics, the object of which is to obtain an order for the sale of the pledged securities and, to this end, to have the claim judicially recognized and liquidated.

The prayer is for judgment for the amount claimed to be due, with interest, and for recognition of the bank’s rights as pledgee of the securities named in the petition, and for a decree ordering the sale of the same at auction after due advertisement, etc. — the proceeds thereof to be applied pro tanto to the extinguishment of the indebtedness.

Exceptions of no cause of action, estoppel, res judicata and other defenses interposed by the syndics were, for the greater part of the indebtedness, held not tenable.

There was judgment by the district court, in favor of the plaintiff against the defendants for sums aggregating $74,045.16, with interest, recognizing- the pledge claimed, ordering the sale at auction of the stocks and bonds pledged, and the application of the proceeds thereof to the payment of the indebtedness recognized.

With regard to another part of the indebtedness, which appeared not to be secured by pledge, the demand as to same, in the manner here presented, was dismissed, without prejudice to plaintiff’s right to assert same by due course of law in the insolvency proceedings of M. Schwartz & Oo.

Defendants appeal.

On their behalf it is contended that the judgment appealed from cannot stand because it does not appear affirmatively, either from the judgment itself or from the minutes of the court a qua, that the judgment was read in open court prior to its signature by the judge.

It is true the judgment does not recite it was read in open court. Its decretal part is followed by these words:

“Judgment rendered in open court May 1, 1899”.
“Judgment signed in open court May 5, 1899”.

Then appears the judge’s signature.

It is essential judgments should be read in open court (C. P. 543), and where it does not appear from their recitals, or from the court’s minutes, that they are, or have been, read, they will, for that reason, be set aside by the appellate court.

The minutes, however, of May 5, 1899, show that the judgment in the instant case was read in open court. That suffices.

Woodlief vs. Logan, 50 La. Ann. 438.

Another, contention of defendants, assigned as error here, is that it was necessary for the receiver to aver and prove he was authorized by the Comptroller of the Currency, U. S. Treasury Department, to institute the present action, and to sell at public auction the collaterals pledged to secure the indebetdness declared on, and that without this authorization the judgment recovered cannot stand.

This position has no sufficient basis in law to rest upon.

Section 5234 of the Revised Statutes of the United States provides that the receiver of a national banking association, “under the direction of the Comptroller, shall take possession of the books, records and assets of every description of such association, collect all debts, dues and claims belonging to it, and, upon the order of a court of record of competent jurisdiction, may sell, or compound all bad or doubtful debts, and, on a like order, may sell all the real or personal property of such association, on suclh terms as the court shall direct.”

The receiver here could not sell the collaterals in his hands without obtaining the order of a court of competent jurisdiction, and this order must fix the terms of the sale.

The object of this suit was to obtain such an order. The Civil District Court of the Parish of Orleans is a court competent to grant the order. It did so.

We do not find from the statutory law, nor from the decisions of the courts, that before applying to the Civil District Court for the order to sell the pledged stocks and bonds, the receiver must obtain the formal authorization of the Comptroller to make the application, and that in addition to the order of court, he must also have the formal authority of the Comptroller to sell.

“The language of the statute authorizing the appointment of a receiver to act under the direction of the Comptroller means no more than that the receiver shall be subject to the direction of the Comptroller. It does not mean he shall do no act without sjpecial instructions. His very appointment makes it his duty to collect the assets and debts of the association. With regard to the ordinary assets and debts no special direction is needed; no unusual exercise of judgment is required. They are to be collected, of course; that is what the receiver is appointed to do”.

This was the language of the court in Bank vs. Kennedy, 17 Wall. 19, 21, 22.

It is true a receiver cannot bring a suit to enforce a stockholder's liability until the Comptroller ascertains that it is necessary to assess the stock, fixes the amount of such assessment, and gives him authority to collect. That is because stockholders are not ordinary debtors of the bank. The distinction between a suit of that character and the one at bar is clearly pointed out in Bank vs. Kennedy, supra.

See also Morse on Banks, § 150; Boone on Law of Banking, § 433; Morrison vs. Lee, 24 Blatchf., 291, 294; Hayden vs. Thompson, 71 Fed. Rep. 60, 64, 65, 66.

The cases respecting the authority of a president of a police jury to bring actions have no bearing on the instant case.

Another contention of the defense is that a creditor of an insolvent cannot bring, singly and separately, a distinct and independent suit to fix his indebtedness and have his lien, privilege or pledge recognized against the syndic; that the syndic represents the mass of the creditors and is without right or capacity to stand in judgment in a proceeding such as the present one.

It is quite true that a suit against the syndic of an insolvent to establish a privilege on the property of a ceding debtor can have no effect against the other creditors, who are the real parties in interest, as was held in State ex rel. Simmons & Cohn vs. Judge, 50 La. Ann. 624. And that the question of the existence and rank of privileges must be settled contradictorily with all the creditors in contest over the tableau of distribution filed, as was held in Tenny vs. Provosty, 14 La. Ann. 218, and other cases.

But this is not a suit to establish the existence of a privilege, nor to rate the rank of a privilege assented on the' proceeds of property which had passed into the hands of the syndics and been administered by them. Here the) stocks and bonds pledged to secure the indebtedness of Schwartz & Co. to the American National Bank never passed into the hands of the syndics of the insolvent firm, and, of course, were not and could not be administered by them.

Clark vs. His Creditors, 43 La. Ann. 737; Denis on Contracts of Pledge, § 260.

They were in the possession of the pledgee and passed under the control of the receiver appointed to the pledgee. The syndics of the insolvent pledgors had no right or interest in same save as to the residuum, if any, which might be left over after satisfaction of the indebtedness due the pledgee.

The syndics could not sell the collaterals pledged, and the proceeds of same when sold by the pledgee had no place upon any tableau of distribution which the syndics might file in the insolvent proceedings, except as to the residuum aforesaid. It is true, in order to get at this residuum, to ascertain if there were or would be a residuum, it were competent for the syndics to take action to compel the sale by the pledgee of the collaterals. 11 La. 225; 40 La. Ann. 37; 43 La. Ann. 737; Denis on Contracts of Pledge, § 260.

Put since there would be nothing for the syndics to administer or deal with on their tableau of distribution, save this residuum, it is clear a contestation between the creditors of the insolvent firm over the tableau of distribution could not properly embrace or involve the pledgee’s right to dispose of the property pledged in order to realize the indebtedness due it.

Yet, since under the statutes of the United States regulating the action of receivers appointed to insolvent national banks, the receivei herein could not sell the collaterals in question in his hands except upon the order of a court of record of competent jurisdiction, it were necessary for him to take proceedings to obtain such order.

He could not be compelled to wait such time as the syndics of Schwartz & Co. might see proper to take before filing a tableau of distribution, even if the question here arising could properly be determined in a contest over such tableau.

The receiver was entitled to take action at any time, the claim of his principal being due, to realize on the pledged stocks and bonds.

He could not be expected to make parties to his suit, to obtain the order to sell, all the creditors of Schwartz & Co.

I-Ie was not obliged to litigate with them his right to obtain such order.

His suit is not even one to establish a pledge claimed. He tells the court the insolvent firm of Schwartz & Oo. owes him, in his official ca-pa city, an indebtedness, and to secure it he has in pledge certain stocks and bonds which he wants to sell in order to realize payment of the indebtedness. He asks an order to sell. As incidental to his right to obtain this order he must establish the indebtedness he claims, and he does so.

Were Schwartz & Co. not commercially dead, were they still a going concern and not in the insolvent court, the receiver would proceed against them as parties defendant to this his suit to obtain the order to sell. But since they are insolvent and their affairs in the hands of syndics appointed to administer the same, it is obvious that the legal representatives of the insolvent estate, the syndics, are properly made parties defendant in this action to obtain the order to sell the property pledged.

They have an interest to represent — the eventual right to the residuum. As we have seen, they could, themselves, sue to enforce the ascertainment and realization of this residuum. They could be parties plaintiff, yet we are told they may not be parties defendant.

This is met by the express terms of the law which authorizes a syndic to sue and he sued in everything which respects the rights and actions pertaining to the insolvent debtor. R. S. 1811.

A further contention advanced by the defence is, that the receiver has forfeited his rights as pledgee by proving his claim as creditor and participating in the meeting of creditors called to accept the cession made by the insolvent firm of M. Schwartz & Co., elect syndics and fix the terms of sale of the property ceded, without expressly declaring and reserving his rights as pledgee in the stocks and bonds which the bank held. It is on this that the exception of estoppel is predicated.

It is also contended that when the proceedings of the creditors’ meeting were homologated without opposition on his part, his claim as pledgee was adjudicated against him. Hence, the plea of res judicata.

The fact that a creditor holds in pledge certain securities or property as guarantee of his claim does not render him ineligible to attend a creditors’ meeting, nor militate against his proving his claim and voting for a syndic.

Enet vs. His Creditors, 4 M. 404; Jones on Pledges, § 587.

In short, he may still take part in the insolvent proceedings, and by doing so, if he have a pledge, privilege or mortgage, he does not forfeit same. This is so, even though he make no statement or declaration concerning' the security he holds, and stipulates no special reservation of his rights touching the same. There appears to be no requirement of the insolvent law that he should state what security he has and that he must specifically reserve his right of pledge at the creditors’ meeting on penalty of forfeiting the same.

And where the creditor with a pledge appears at the meeting and participates therein, making no mention of his pledge and no reservation of rights thereunder, and subsequently the prooes verbal of the meeting is homologated without opposition on his part, we do not find the insolvent law of the State to be that such homologation has the force of an adjudication on all questions of privilege and pledge as between the creditor claiming it and other creditors.

See Spear vs. His Creditors, 40 La. Ann. 650; Chaffe, Syndic, vs. Scheen, 34 La. Ann. 687; Prevost, Syndic, vs. Walther, 48 La. Ann. 221; Pinsky vs. Resweber, 49 La. Ann. 246.

Judgment affirmed.

Rehearing refused.


text:
    No. 13,494.
    State ex rel. William Hutchinson vs. Keete Lockett, Sheriff and Tax Collector.
    Syllabus.
    1. Mandamus will not lie against a public officer, where there is no law requiring him to act.
    2. Police juries are required to adopt estimates of expenses for one year at a time, and each ordinance fixing licenses must be based upon the estimate for the year for which the license is fixed.
    APPEAL from the Ninth Judicial District, Parish of Red River— Hall, J.

      John D. Willcinson for Plaintiff, Appellant.

      James O. Egan, Sr., for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

It appears from the record in this ease, that the Police Jury of the parish of Red River, after adopting an estimate of expenses for the year 1899, as required by law, passed an ordinance, fixing the parish licenses, and, among them, the retail liquor dealers’ license, which was fixed at $250 for the year. In November, 1899, the same body adopted an estimate of expenses for the year 1900, and, allowing something more than the thirty days required by R. S. 2745, on January 3rd, Í900, passed the ordinance fixing the licenses for the year, and raising that of the retail liquor dealers to two thousand dollars. In the meanwhile, on January 2nd, the relator applied to the( sheriff, and ex-officio tax collector, for parish and State licenses for the year 1900, tendering-two hundred and fifty dollars for the one, and one hundred dollars for the other. But that officer denied the application, on the ground that it was not his duty to deliver the parish license, since the Police Jury had not fixed the same, and had turned none over to him; and that it was not his duty to deliver the State license, because, as he claimed, the right to such license depended upon the action of the parish authorities with reference to parish licenses. The relator then applied to the president of the Police Jury to issue the desired parish license, and this request was, also, refused, on the ground that there was no ordinance authorizing the issuing- of such license. Whereupon, the relator brought the present suit, being a proceeding by mandamus to compel the president of the Police Jury and the ex-officio tax collector, in their respective capacities, to execute and deliver to him, and to certain others, whom he speaks of as “similarly situated”, “license” to sell liquor at retail during the year 1900. The respondents, by way of return, set up, substantially, the grounds which have been stated; there was judgment in the court a qua rejecting the relator’s demand, and he has appealed.

The claim that the writ should issue to the ex-officio tax collector with respect to the parish license has been, virtually, .abandoned, as there appears to be no law making it his duty to deliver parish licenses which have not been turned over to him for that purpose. With respect to the State license, we understand from the admissions in the record, and also from the prayer of the petition, that the demand was, and is, for “license”, that is to say, for effective permission to sell liquor at retail, and not for the permission from one source, with an existing prohibition from another. In other words, that the relator did not, and does not, demand that the State license shall issue whether the parish license issues or not, but that it was, and is, one demand for both licenses. This being the case, and ’our deductions, from the pleadings and admissions, being that he would not have paid the State license in view of the non-delivery of the parish license, we are of opinion that the demand, as to the sheriff and ex-officio collector, was properly rejected.

The proposition in support of the claim as against the president of the Police Jury is as follows, to-wit:—

That the law requires (under penalty) a retailer of liquor to obtain a license before going) into' business, but that such business is nevertheless lawful as to those who comply, or who are willing to comply, with the conditions imposed, 'and that it is incompetent for the Police Jury, by failing to fix the amount of the license for 1900, to place such persons in a position where they are obliged to choose between the alternatives of not doing business at all, or of conducting their business without license, and in violation of a penal statute. From which it is deduced that the ordinance fixing the license for 1900 not having been adopted on the 2nd of January, aud the State law (Act 171 of 1898) requiring the collector to begin the collection of licenses on that day, it must be held, either that the license was to be collected under the pre-existing ordinance, whereby it was fixed at two hundred and fifty dollars, or that a suspension of the law would result from the inaction of the Police Jury, which, it is said, is inadmissible.

If, as a matter of law, the ordinance passed in January, 1899, fixing the licenses for that year, and undertaking to fix them for the succeeding years, upon the basis of the estimate, previously adopted, for the year 1899, was competent legislation, in so far as it undertook to fix the licenses for .1900, the argument of the learned counsel would be difficult, perhaps impossible, to answer. But, under both the law and the jurisprudence, the Police Jury is required to estimate for one year at a time, and the ordinance fixing the licenses for a particular year must be based upon the estimate for that year, so that the ordinance under which the relator demands a license for 1900 did not, and could not, fix the amount of the license for that year. R. S. 2475; Parish of Lincoln vs. Huey, 80 Ann., 1244; Police Jury vs. Bouanchaud et als., 51 Ann., 866. If, then, there was no law, undeif which the president of the Police Jury could issue a license, when the relator demanded it, this case is at an end, for a mandamus will not' issue to a public officer under such circumstances. And what might happen, if the relator, claiming that he could not be denied the right to carry on his business) should conduct it without a license, ini face of the statute imposing a penalty for so doing, is another question, which does not present itself in these proceedings. It may be remarked, however, that the law does not expect impossibilities, and that the books will probably be searched in vain for an instance where a citizen, who has paid his license as soon as it was possible to dd so, has been punished for doing a business, otherwise lawful, without a license.

Judgment affirmed.

Rehearing refused.


author: Blanchard, J. Nicholls, C. J.

text:
    No. 13,446.
    Jean Miramon vs. City of New Orleans.
    Syllabus.
    On Application for Whit of Review.
    Where the decision of a cause in the Court of Appeals turns on a point at issue with reference to which the preceding jurisprudence of this court, as established by the adjudicated cases, is clearly conflicting, the writ of review will be granted.
    On the Merits.
    The privileges and mortgages securing the payment of city taxes are prescriptible, but the taxes themselves are imprescriptible. (Leeds and Company vs. I-Iardy, 43rd Ann., 810).
    IN RE Jean Miramon Applying for Certiorari, or Writ of Review, to the Court of Appeals, Parish of Orleans,! State of Louisiana.

      Albert Yoorhies for Petitioner.

      Samuel L. Gilmore, City Attorney, and James J. McLoughlin, • Assistant City Attorney, for Defendant.
   The opinion of the court was delivered by

Blanchard, J.

The question raised herein is whether or not taxes due the City of New Orleans for the years 1891, 1892 and 1894 are subject to the prescription of three years.

The contention of plaintiff is that the city taxes, as well as tax mortgages and tax privileges, are prescribed by that length of time, and the second clause of section 34 of Act 98 of 1886 is pointed to as sustaining the same.

This clause, or that portion of it pertinent hereto, is as follows:

“All taxes, tax mortgages and tax privileges shall be prescribed by three years from the date of filing of the tax roll.”

This law is found in an act bearing this title:

“An act to provide an annual revenue for the State of Louisiana by the levying of annual taxes upon all property not exempted by the Constitution from taxation, and by prescribing the method of assessing and collecting- the same, and of enforcing payment thereof.”

The clause of the act of 1886, as quoted, is found also in the revenue acts of 1880 (Sec. 24 of Act 77) and in that of 1882 (Sec. 34 of Act 96), except that in the act of 1882 the prescriptive term is fixed at five years instead of three. The titles of the acts of 1880 and 1882 are the same as that of the act of 1886.

The question is, did the prescription) of taxes as declared in the aforesaid acts of 1880 and 1882, and does the prescription of taxes as declared in the act of 1886 apply to taxes levied in' favor of the City of New Orleans as well as to taxes levied on behalf of the State ?

If the prescription established by the law of 1886 is applicable to city taxes, then is plaintiff entitled to the relief he seeks, in the absence of any showing of the interruption of prescription.

If the prescription of thte law of 1886 was intended to apply only to taxes levied by the State, then is plaintiff without a ease.

On the precise point there does not appear to have been any direct decision of this court. There are, however, adjudications coming very near to it, and in these a conflict appears.

In the Succession of Stewart, 41'La. Ann. 130, decided several years after the adoption of the revenue acts of 1880, 1882 and 1886, the court said:

“Act No. 26 of 1886 is the only law enacted since the adoption of the Constitution of 1879, which fixes the period in which State, Parish and municipal tax mortgages, liens and privileges shall prescribe.” This Act 26 of 1886 was approved June 23, 1886.

Yet at that very time, passed by the same Legislature, and approved July 8, 1886, was Act 98 of 1886, from which we have quoted that “all taxes, tax mortgages and tax privileges shall be prescribed by three years * * *”

The earlier act passed in 1886 (No. 26) refers in express terms to “State, Parish or municipal” taxation, and ordains the prescription of tax privileges and, mortgages (not the tax itself) in three years.

The later act (No. 98), purporting to be a State revenue law, does not use the words “State, Parish, or municipal” in connection with the declaration that taxes, tax mortgages and tax privileges shall be prescribed in three years; but says, as did the two preceding revenue acts, those of 1880 and 1882, that “all taxes, tax mortgages and privileges shall be prescribed by three years.”

Yet this act was in force as law when the decision in the Succession of Stewart, supra, was rendered, though that decision seems to ignore the prescription accorded by it ajs having any relation to municipal taxation, whether as to the taxes themselves, or the mortgages and privileges given to secure the same.

The ease of the Succession of Mercier, 42 La. Ann. 1149, followed, in which it was declared that:' — “the taxes assessed (meaning city taxes) from 1871 to 1888, both inclusive, are imprescriptible.”

Yet, so far as the taxes from 1880 to 1888 were concerned, there were the revenue acts of 1880, 1882 and 1886, ordaining, two of them, the prescription of three years, the other of five years, against “all taxes, tax mortgages and tax privileges.”

The following year the case of Leeds & Co. vs. Treasurer was before the court — 43 La. Ann. 801 — and there it was broadly held that :• — “The privileges and mortgages securing the payment of city taxes are prescriptible, but the taxes themselves imprescriptible.”

This decision was rendered in 1891. It had to do with the city taxes for the years 1880, 1884, 1886 and 1887, and during that period there were in full force the aforesaid State revenue acts of 1880, 1882 and 3886, all declaring the prescription of three and five years against “all taxes, tax mortgages and tax privileges.”

From these repeated decisions it would seem that the intention had been to hold that the prescriptions accorded by the revenue acts of 1880, 1882 and 1886 were not applicable to city taxes, though it was nowhere so stated in those eases.

This view of it would, however, be now taken but for the later decision of the court in State ex rel. Powers vs. Recorder of Mortgages, 45 La. Ann. 511, decided in 1893, where the contrary was held.

There the court used this language: “Taking the date of the service of the writ of mandamus, November 30, 1892, as that from, which the computation of time is to be made, and we find that all tax mortgages and tax privileges securing the payment of municipal taxes of the years antecedent to 1889 are prescribed by the terms of 'the revenue laws of 1886, which are as follows: “All taxes, tax mortgages and tax privileges shall be prescribed by three years from the date of the filing of the tax roll.” (Italics ours).

This is the exact language hereinbefore quoted from the revenue act of 1886- — Act No. 98 of that year.

And the court, in the Powers case, goes on further to say that all taxes, tax mortgages and tax privileges (meaning city taxes and tax mortgages and privileges) are prescriptible by three and five years “under prior revenue laws” — meaning those of 1880 -and 1882, herein-before referred to.

Thus, we have here a ruling apparently in conflict with earlier rulnigs.

It shows an unsettled jurisprudence as to whether the prescriptions accorded by the revenue acts of 1880, 1882 and 1886 apply to city taxes, vel non, and while in Hood vs. City, 49 La. Ann. 1465, the court said: “With reference to' prescription it only remains to say that it did not run in favor of the tax debtor” — thus apparently going back to the earlier rulings — we think it wise, to the end of authoritatively settling the point at issue, whibh is likely to arise in other cases, to grant the writ applied for.

It is, therefore, ordered that the writ of review do issue; that the Court of Appeals send up the record of the case; that counsel for plaintiff and defendant be notified-; and that a delay of twenty days from this date be allowed for the filing of briefs.

On ti-ie Merits.

The opinion of the court was delivered by

Nicholls, C. J.

The judgment of the Court of Appeals which has been brought up for review in this case was as follows:

“ This case is presented to us on the following statement of facts:
“ Plaintiff owns the four lots of ground, described in his petition, the same being made part of this statement for the purpose of describing-same.
“ The same was properly assessed for the years 1891, 1892 and 1894, during which years it was owned by Jean Miramon, who paid the State taxes for those years.
“ On August 5th, 1898, he obtained the injunction filed in the record, restraining the city from selling- the property for taxes, which the city would have done on August 29th, 1898, had she not been prevented by this injunction.
“ By mutual consent the question submitted to the court for decision is narrowed down to the plea of prescription of two, three and five years, all other claims in bar of the city’s collecting taxes being waived or abandoned by the plaintiff. The court a qua sustained the plea of prescription ¡a[.id perpetuated the injunction and from this judgment this appeal is taken.
“This judgment is clearly erroneous for, since the other decision in Succession of Stewart, it has has been the settled jurisprudence of the Supreme Court that city taxes are imprescriptible. The language of the court in Leeds vs. Treasurer;, 43 Ann. 813, is decisive of the present controversy:—

‘In Succession of Stewart, 41 Ann. 128, all of the statutes cited and the constitutional provisions relied upon, were thoroughly examined and analysed, and we decided that city taxes were imprescriptible, though the liens, privileges and mortgages sécuring same are prescriptible. But notwithstanding the tax privileges and mortgages have become prescribed, the city has the right to proceed against the property assessed for the purpose of realizing the taxes themselves.’

“And in Succession of Hood it was said: ‘With reference to prescription it only remains to say that it did not run in favor of the tax debtor. It is settled that the tax debtor, who was personally indebted for the amount had no right of defence growing out of whatever prescription applies when third persons are concerned’. 46 Ann. 1465.

See also, Succ. of Mercier, 42 Ann. 1135; Rivers vs. City, 42 Ann. 1201.

“ The plaintiff’s claim has neither law nor equity to recommend it.

“ The judgment appealed from is reversed, and it is now ordered, adjudged and. decreed that the injunction herein issued be dissolved and set aside and plaintiff’s demand rejected at his costs in both courts.”

An examination of the different statutes referred to and the decisions bearing upon the subject matter, satisfies us that the conclusion reached by the Court of Appeals is correct.

The title of Act No. 26 of 1886 to which we are referred by plaintiff’s counsel is “an Act to prescribe tax -mortgages and privileges”. Counsel says that ill its first section it refers to “State, P'arish or Municipal taxes”. So it does, but it merely declares “that all tax privileges and t(ax mortgages securing the payment of taxes, whether State, P'arish of Municipal,” shall be prescribed by three years. Counsel admits this but says the omission is supplied by the express terms of section 34 of Act No. 98 of 1886, that “all taxes, tax mortgages and tax privileges shall be prescribed in three years,” but the title of the Act evidently restricts its effect to providing an annual revenue for 'State purposes.’

Expressions in the body of the Act going beyond this make the body broader than the title and must be disregarded.

Our attention is directed to Art. 247 of the Constitution of 1898 to the effect that “all the articles and 'provisions of this Constitution regulating and relating to the collection of State taxes and tax sales, shall also apply to and regulate the collection of parish, district, municipal, board and parish taxes.”

This article refers obviously to the method of the collection of taxes and not to the prescription to be applied to them.

Seeing no error in the judgment of the Court of Appeals it is hereby affirmed.


text:
    No. 13,355.
    State Bank of New Iberia vs. James F. Martin.
    Syllabus.
    1. Where the disposition or proposed disposition of produce from farm or factory is in the usual course of business — i. e., to commission merchants from whom advances had been procured and a pledge antecedently given, no grounds for attachment appear.
    2. An attachment based upon the averment of a fraudulent disposition, or proposed disposition of property or unfair preference, must be supported by proof of some act or declaration of purpose from which the fraudulent intent of the debtor may reasonably be gathered.
    3. If the credit and good fame of the debtor have been lessened and the same is attributable rather to his own conduct than to the act of his creditor in attaching his property, small grounds for damages exist.
    4. Under the circumstances of this ease, while the attachment is dissolved, damages, except for attorney's fees and actual expenses, are disallowed.
    APPEAL from the Nineteenth Judicial District, Parish of Iberia— Yoorhies, J.

      Anthony N. Muller, Andrew Thorpe and Thomas H. Thorpe for Plaintiff, Appellee.

      Foster & Broussard and L. T. Dulaney for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

This action was brought to recover $3,000.00 with interest and protest fees. Defendant, a manufacturer of sugar from cane, drew a sight draft for that amount on Levert, Burguierres & Co., commission merchants in New Orleans, with whom he was doing business, carried the draft to the plaintiff bank where it was cashed or discounted. The commission merchants declined payment and the draft was duly protested for dishonor and non-payment.

Whereupon the cashier of the bank immediately visited the defendant at his sugar refinery, informed him of the dishonor of the draft, and requested that the matter be arranged and the draft protected. Nothing coming of this, and not satisfied with the situation, the bank, the following day, instituted this suit and invoked the writ of attachment in aid thereof.

The grounds of attachment are that the petitioner “verily believes and fears the defendant has disposed of, or is \about to dispose of, his property, or some part thereof, with intent to give an unfair preference to others of Ms creditors, and that he has just cause to fear he is about to convert his property into money or other evidences of debt with intent to place it beyond the reach of his creditors.”

The sheriff seized, under the writ, a lot of sugar in barrels, packed and ready for shipment, a. lot of sugar not yet packed in barrels, and twenty-five car-loads of cáne — all of the probable value of $5.000.00.

This property was seized at the sugar refinery of the defendant. The refinery itself was not seized, nor was any of its realty, plant, machinery, or paraphernalia.

Defendant does not resist the indebtedness charged, but contests the attachment and in the trial court moved its dissolution, averring no sufficient grounds therefor, falsity of the allegations upon which based, and charged malicious motive on part of the plaintiff in procuring the same.

He avers damages suffered by reason of the wrongful issuance of the writ, grouping the same under various heads, the amount aggregating $75,000.00, and prays judgment therefor in reconvention.

The judgment below was m lavor of the plaintiff for the amount claimed, maintaining the attachment, and rejecting and dismissing defendant’s demand in reconvention. He appeals.

The questions here presented for determination are (1) the legality of the issuance of the writ of attachment; (2) if found to have been unwarrantably issued, the damages, if any, defendant is entitled to judgment for.

I.

Did the plaintiff bank have grounds sufficient in fact and in law to warrant recourse to the writ?

We are constrained to hold that it did not.

The evidence shows that the defendant had been engaged for years in the sugar making business and that hd was so engaged in the season of 1898-9. He was not a grower of cane, but relied upon the surrounding cane growers for the cane manufactured into sugar at his mill. He was a purchaser of cane from them. His manufacturing plant was estimated to be worth about $70,000.00. His mill was running regularly at the time of the attachment and for weeks before. His credit was reasonably good. He owed debts, but was not insolvent. His reputation and character in the community and the business world were good. Levert, Burguierres’ & Co. were his merchants; he shipped his sugar to them for sale. He relied on them for advances of money in his business. They held a mortgage on his sugar refinery for $10,000.00. Besides, he had executed in their favor a -contract of pledge on the sugar and molasses he was to manufacture in the season of 1898-9, as additional security for the indebtedness, engaging himself not to sell, encumber or dispose of the same, or any part thereof, toi their prejudice, and to ship and consign the same to them in due course — the proceeds thereof to be applied by preference to the payment of the mortgage note.

This act was placed on record in May, 1898. The attachment took place late in December of that year. ITe had been in the habit of drawing drafts on his commission merchants. Plaintiff bank had, that season, cashed other drafts of his on them.

ITe had, from time to time, made shipments of sugar and molasses to them, and about the time the draft sued on was drawn he had shipped them quite a lot of sugar. It is true he had no funds to his credit with them and was still in their debt, but the fact that others drafts of his had been paid by them shows he was not entirely without warrant in drawing the draft in question.

When the draft was not paid and the cashier called upon him in reference thereto, the cashier’s statement of what occurred is, substantially, as follows: When he was asked in what way he could arrange the matter, he replied he did not understand why Levert, Burguierres & Co. refused to pay his draft as he had three days previously made them a shipment of sugar, the value of which was more than sufficient to pay the draft; that he thought they would pay it after he saw them; that possibly the sugar last shipped had not reached them, etc. The cashier answered, that may be, but the bill of lading had, and that upon this bill of lading the draft should have been paid. Asked in what manner he could arrange the matter, he replied, by making another shipment of sugar to the firm. But the cashier thought this unsatisfactory since the firm, just in receipt of a bill of lading for sufficient sugar to meet the draft, had not met it, and there was no good ground for believing that they would meet it upon a still further shipment of sugar, but would, rather, do as they were doing with the last shipment — apply its proceeds to the shipper’s own indebtedness to them. Asked what security or collateral he had to offer to tide matters over until he could arrange to meet the draft, he replied he had none.

Asked on cross-examination for a re-statement of the reasons which justified, in his behalf, the attachment, the cashier answered: “My fears were these: As Mr. Martin had told me he had shipped sufficient sugar on the 23rd of December to more than cover the draft given us, and that draft had not been paid, it occurred to me then that Martin must be heavily indebted to the firm of Levert, Burguierres & Co., and that if further sugars were shipped them they would apply the proceeds thereof to partly liquidating whatever indebtedness was due them by him, and in that event we could have recourse on nothing else.”

The bank knew at the time it received the draft that the defendant was shipping his sugar to the firm in New Orleans on whom the draft in question, and other previous ones which they had discounted, were drawn.

Defendant’s ^version of the interview between himself and the cashier the night before the attachment is, in substance, as follows: Does not recollect anything said about the shipment of sugar; told him there was sufficient sugar shipped to meet the draft; that if he would wait I would go the next day to New Orleans and endeavor to arrange matters so as to have the draft paid; he did not say whether he would wait or not, but next day as defendant was on his way to New Orleans, he met the sheriff on the road who served legal process upon him and then proceeded on to the factory and executed the attachment. Plis intention in going to New Orleans was to see his merchants and endeavor to arrange the trouble that had arisen.

While the record is burdened with much testimony, sifted down to its last analysis, it is found that Ithe only ground existing for the attachment was the fear that defendant would make other shipments of sugar to his merchants, who would apply the proceeds to the payment of what he owed them, and still refuse to meet the draft plaintiff held.

Considering the attitude of these parties to one another in a business way, this did not suffice to warrant the attachment.

The disposition and the proposed disposition of the sugar and molasses was in the usual course of business. It was consigned and to be consigned to defendant’s commission merchants, to whom it was pledged by act of public record long prior to the attachment, as was well known to plaintiff’s attorney at the!'time he advised the attachment. The bank knew all the time the sugar was going forward to Levert, Burguierres & Oo. It had repeatedly cashed other drafts for defendant on the firm, and when, in the conversation with the cashier after the protest, he expressed a purpose of sending forward other consignments of sugars to them, it evidenced no intent to give an unfair preference to them, nor intent to defraud his other creditors.

It gave no sufficient ground for the affidavit that he was disposing of, or about to dispose of, his property with intent to give an unfair preference ta others of his creditors, or that he was about to convert his property into money or other evidences of debt with intent to place it beyond the reach of his creditors.

The case lacks the essentials to sustain the writ invoked. An attachment based upon grounds such as those here alleged must be supported by proof of an act or acts showing the fraudulent intent of the debtor to place his property beyond the reach of his creditors, or to give the unfair preference charged. Winter vs. Davis, 48 La. Ann. 260 .

This is not a parallel case to that of Bowling vs. Colvin, 49 La. Ann. 1340, which seems to be relied upon by the trial judge as sustaining his view.

The distinguishing feature of that case was an unfair preference, evidencing a fraudulent intent on part of the debtor to favor certain tírteditbtB and exclude the plaintiff. He was under no greater obligation to do for the others what was done, than he was to the plaintiff. Ho favored certain of his ordinary creditors by confessing judgment in their favor — court being in session, thereby enabling them to forthwith prove the same, obtain judgment, record the .judgments in the mortgage book and thus acquire the status of mortgage creditors. He was applied to to do the same for the plaintiff, also an ordinary creditor. He refused. This court properly held it laid the defendant open to the chalrge that he had mortgaged his property, or was about to mortgage same, with intent to give an unfair .preference to some of his creditors, and that was ground for attachment by the very letter of the Code. The unfair preference there was glaring.

Here it fails altogether. Defendant did not alter the situation to the detriment of the plaintiff. In shipping and proposing to ship his sugar and molasses to his merchants he was only doing a duty which he had long prior thereto engaged to do, to the knowledge of plaintiff — certainly to the knowledge of its attorney who was consulted.

II.

The attachment not being maintainable, what damages, if any, is defendant entitled to ?

We do not find that the attachment originated in any malicious’ motive to injure defendant. It was merely a mistaken invocation of one of the conservatory writs of the la,w in the honest purpose -to collect a debt incurred under circumstances showing' the defendant, himself, not blameless.

Drawing' and cashing a large draft, like the one sued on, and another the same day for an equal amount in favor of another bank in the same town, without knowing for a certainty that the drafts would be honored, is not calculated to commend him to judicial sympathy. It greatly detracts from his “pose” as an injured and oppressed debtor.

The plaintiff is no ruthless creditor carrying things with a high hand and in reckless disregard of the rights of its debtor.

This debtor obtained plaintiff’s money on representations that were wot true, for when he tendered the draft for discount he is to be held as having represented it as good commercial paper.

He has not returned this money, nor has he sought to save the bank from loss by giving it security for the debt.

Under tire circumstances his exhorbitant dmand for $15,000.00 damages has much of the grotesque about it.

We do not find that the attachment closed down his factory; the protest of his two drafts discounted by the two banks did this.

The factory was not seized — only movable property in it was seized.

His credit was likely as much injured by the protests as it was by the attachment which followed.

The closing down of the factory was ordered by him from New Orleans. He had gone there to arrange with his merchants to carry him further, to lift the tar sinister of the dishonor of his paper, but had failed. Realizing this, he wired his son to stop operations.

Drawing bills which he should have known would not be honored had produced this dire result. If his credit and good fame have been lessened, the same is attributable rather to his own conduct than, to the act of his creditor.

With his credit gone, no money in possession and no place to get it, he could no longer purchase cane, and without cane his factory could not operate.

■ We do not find that this condition of affairs is altogether chargeable to the seizing creditor, nor even enough so to hold it responsible in damages to the defendant as here sought to be on that ground.

The grounds for attachment were not sufficient, but defendant can, under the circumstances of this case, recover nothing beyond the actual damage he has sustained as the result of the attachment.

We hold that the only actual damages shown, directly traceable to the attachment and to it alone, is an amount sufficient to coyer the fees of counsel employed to dissolve the attachment and the expenses incident to defendant’s attendance on the trial court for the purpose.

Three hundred dollars, we think, an ample allowance for this purpose.

Eor the reasons assigned, it is ordered, .adjudged and decreed that the judgment appealed from, in so< far as it maintains the attachment herein sued out, be avoided and reversed, and it is now adjudged and decreed that there be judgment on that branch of the case in favor of defendant, dissolving the attachment, and sustaining his reconventional demand to the extent of awarding him judgment against plaintiff for three hundred dollars damages.

It is further ordered, etc., that in all other respects the judgment appealed from be affirmed — costs of both courts pertaining to the attachment and its dissolution to be borne by plaintiff; the other costs, by defendant.

Breaux, J., takes no part.

Rehearing refused.


text:
    No. 13,406.
    Nelson LeBlanc et al. vs. Albert Lemaire et als.
    Syllabus.
    1. "Where the clerk of the trial court is unable to complete a transcript by the return day of the appeal, application for an extension of time should be made. And, if necessary, on proper showing made, additional extensions of time will be granted. .
    2. An appeal filed after the expiration of the extended return day will be dismissed, it not appearing that additional time was seasonably asked.
    3. Again reiterated that a motion to dismiss an appeal because not filed seasonably may be made after the expiration of three days from its filing.
    4. An appeal from a judgment not signed is premature and will be dismissed.
    APPEAL from the Seventeenth Judicial District, Parish of Vermilion.— DeBaillon, J.

      S. P. Wails and W. B. White for Plaintiffs, Appellants.

      Gus. A. Breaux for Defendants, Appellees.
    On Motion to Dismiss Appeal.
   The opinion of the court was delivered by

Blanchard, J.

The ground for the motion is that the transcript of appeal was not seasonably filed.

The record discloses that pláintiffs moved in open court on October 10, 1899, for an appeal to this court, returnable according- to law. This was granted and the bond for a devolutive appeal was fixed at $100.00.

The first legal return day for appeals from the Parish of Vermilion, following- the taking of the order of appeal, was the second Monday of November, 1899.

On October 25th, 1899, the clerk of the trial court certified to the judge of that court his inability to complete the transcipt by the return day, assigning as the reason therefor the quantity of work in his office. Whereupon the judge — stating he did so ex proprio moiu — made an order that the return day of the appeial be changed to the 2nd Monday of January, 1900.

Appellants did not file their appeal bond until January 6, 1900, which was only three days before the extended return day.

On the same day the bond was filed', the deputy clerk of the trial court prepared and signed an affidavit setting forth he had been unable to prepare the transcript in time for filing in this court on the 2nd M.onday of January, because of the pressure of work in his office and because of the delay on part of the appellants ¿n furnishing the appeal bond. He asked an extension of time for thirty days.

This affidavit was enclosed to the clerk of this court in a letter addressed to him by counsel for appellant.

Based on this affidavit and letter of counsel, this entry was made on the minutes of this court on January 9, 1900:

“On motion of S. P. Watts, Esq., of counsel for the appellants, and the affidavit of the clerk of the lower court on file being considered, it is ordered by the court that the appellant be granted a delay of thirty days from this date to have the transcript of appeal in this case completed and to lodge it in this court.”

The transcript was not filed here until March 26, 1900 — long after this extension of time had expired. No further extension was sought or obtained.

On April 27, 1900, the appellees moved to dismiss on the grounds stated.

Appellants resist this, claiming that the motion to dismiss, to .be effective, must have been filed within three days following the filing of the transcript here.

The point here raised is no longer an open question. Repeated decisions of this court have affirmed that where an appellant fails to file his transcript within three judicial days following the return day or extended return day thereof, he is to be considered as having abandoned his appeal, and a motion to dismiss on this ground is not limited to three days following the filing of the transcript. Coudroy vs. Pecot, 51 La. Ann. 495; Mutual Loan Association vs. Church, 48 La Ann. 1458; Dwight vs. McMillen, 4 La. Ann. 350; 10 La. Ann. 75; 9 La. Ann. 21.

Appellants next resist the motion to dismiss on the ground that the failure to file the transcript in time was not occasioned through any fault of theirs, and the reason given why it was not seasonably filed is its non-completion by the clerk.

They present an affidavit of that official in which he asserts he was retarded in making out the transcript by the large volume of work in his office, and because of the fact that he suffered with a bone felon upon one of the fingers of his right hand, incapacitating him from doing manual labor.

None of these reasons suffice. It was the duty of both the appellants and the clerk, when they found the transcript could not be completed in time to meet the extended return day, to apply for a further extension. The volume of business in the clerk’s office could have been met by employing additional assistants, and it is not shown, or attempted to be shown, that other clerks could not be engaged. It was during the months of January and February that the deputy clerk suffered from the bone felon. The extended! return day of this appeal was the early part of January — the 8th of that month. Besides, another could doubtless have been engaged to do the writing in place of the deputy thus incapacitated.

Another ground urged by the appellants against the dismissal of the appeal is that their counsel labored under a misapprehension as to the purport and meaning of the letter of the clerk of this court, acknowledging receipt of the affidavit for extension of time.

It is stated that on reading the letter aforesaid counsel were of the opinion “the case would go over to the April term of this court.” They present the letter in question and ask that it be considered in connection with their insistence of the motion to dismiss.

The letter of the clerk is dated January 9, 1900. It was in reply to the letter of one of the counsel for plaintiffs dated January 8, 1900, in which he says: “I enclose affidavit of the deputy clerk of court in the matter of Nelson LeBlanc et al. vs. Albert Lemaire et als. This document speaks for itself. Please have the case continued 30 days.”

By asking the case to be “continued 30 days,” he evidently meant that an extension of time for 30 days in which to complete and file the transcript be granted. The deputy clerk’s affidavit, which he included in the letter, asked this extension of 30 days.

The clerk answered as follows:

“I am in receipt of your letter of the 8th of January instant, enelos- “ ing the affidavit of the deputy clerk of court in the matter of LeBlanc “ vs. Albert Lemaire.
“As soon as the court meets, the matter will be submitted and the “ delay asked will be granted.
“This will operate a continuance of the trial of the ease until the next “ term of this court sitting for the trial of appeals from the Parish of “ Vermilion, I fear.”

This letter was a proper reply, clear and precise. It acknowledged receipt of the affidavit asking an extension of 30 days, stated the motion would be presented to the court, and that the delay would be granted.

It was stated further the probability that the granting of the extension would operate « continuance of the trial of the case until the next term of the court sitting to hear appeals from Vermilion Parish. It is impossible for this to have reasonably produced on the mind of the recipient of the letter an impression that he had until the next term of court, sitting to hear appeals from this parish, in which to file his transcript. There is a great difference between granting an extension of 30 days in which to file a transcript, and the expression of belief on part of the clerk that the granting of the extension would operate the continuance of the trial of the cause.

The court is always reluctant to dismiss appeals, but in this instance the case is too plain a one, favoring tho motion to dismiss, to avoid it.

After the case had been argued and submitted here, and after the opinion of the court dismissing the appeal because not seasonably filed had been prepared, it is brought to the attention of the court by counsel for appellants that the judgment from which the appeal was prosecuted only appeared by entry upon the minutes of the court a qua and had not been formally drawn up and signed.

This being so the appeal was premature, to say the least of it, and it is well settled that this court will not entertain an appeal from a judg; ment not signed. 9 La. 275; 18 La. 30; 4 R. 47; 7 R. 451; 9 La. Ann. 42; 12 La. Ann. 756.

It further appears, from papers sent here, that the judge a quo signed the judgment as of date May 14, 1900, which was after the case had been argued and submitted here, and that a new order of appeal had been taken in tho ease

The appeal we have been considering is liable to dismissal on both grounds discussed, i. e., because the transcript was not seasonably filed, and because prematurely taken.

We prefer to place its dismissal on the latter ground.

It is, therefore, ordered that the appeal first taken be dismissed at the cost of appellants, without prejudice to whatever rights of appeal appellants may have under the second order of appeal taken, and without prejudice to whatever rights the appellees may have to resist said appeal by motion to dismiss or otherwise.

Rehearing refused.