author: ODOM, J.

text:
    No. 2509
    Second Circuit
    HOLMES v. HENDRICKS
    (April 10, 1926. Opinion and Decree)
    (May 7, 1926. Rehearing Refused)

      (Syllabus 0y the Editor.)

    1.Louisiana Digest — Prescription—Par. 14, 33, 34, 46, 57.
    Under Article 3498 of the Civil Code when a person has a title to an immovable and possession conformable to it, he is presumed to possess according to the title and to the full extent Of its limits.
    2. Louisiana Digest — Prescription—Par. 20.
    In order to acquire a prescriptive title to real estate under Article 3487 of the Civil Code the possessor shall hold in fact and in right as owner.
    3. Louisiana Digest — Prescription—Par. 48.
    In view of Article 3490 of the Civil Code a religious organization does mot acquire title by prescription to the land surrounding its church by virtue of the fact that some portion of it has been used as a public or community cemetery.

      4. Louisiana Digest — Prescription—Par. 59; Petitory-and Possessory — Par. 38.
    Where plaintiff in a petitory action not only proves the partition of the real estate in question giving her title to it, but also tracing her title to her father who acquired it under a deed recorded in 1876 and proved possession under . that deed down to 1925 it is sufficient to prove her title good.
    Appeal from the First Judicial District Court of Louisiana, Parish of Caddo, Hbn. J. H. Stephens, Judge.
    Action by Mrs. Carrie L. Holmes against William N. Hendricks, et al. There was judgment for defendant and plaintiff appealed.' Judgment > reversed, decreeing plaintiff to be the owner of the land but disallowing her demand for damages.
    Long and McSween,. of Shreveport, attorneys for plaintiff, appellee.
    Herndon and Herndon, of Shreveport, attorneys for defendants, appellants.,
   ODOM, J.

Plaintiff brought this suit .to be decreed the owner of the following described triangular-shaped piece of land situated in the west half of the southeast quarter of Section four, township sixteen north, range fourteen west, in Caddo parish, Louisiana, to-wit:

* * commencing at the quarter corner on the southside of Section 4, Township 16 North, Range 14 West, which corner is marked by a Ford axle; thence north, on half Section line, 1576.32 feet to a point; thence east, 928.35 feet to the point of beginning; thence south, 40 degrees 30 minutes east, 330.6 feet; thence west, 296.41 feet; thence north, 39 degrees 22 minutes east, 426.3 feet to the point of beginning, the northwest side of which is the southeast side of' the Mansfield road, and contains 1.12 acres.”

She alleges that defendant has trespassed upon said property and has located a building thereon without any right or title to. said land, despite her repeated protests; and, further, that he has destroyed a fence which was on said property, valued at $200.00, and had destroyed a road leading through the property, worth $100.00; and she prays for damages of $300.00.

As a basis of title, plaintiff alleged that the property she now claims is a part of a large tract of land acquired by her father, Marion McMilland, at public sale from the Succession of A. J. Pickens on January 29, 1876, by deed duly recorded in the Notarial records of Caddo parish on November 21, 1876, and that all of said land was transferred by her said father to his wife, Mrs. Georgia A. McMilland, on June 28, 1881; that both her father, Marion McMilland, and mother, Georgia A. McMilland, died later, the exact date not being stated, leaving, as their sole surviving heirs four children, to-wit: petitioner and a sister, Mrs. Laura Pettaway, and two brothers, Andrew J. McMilland and Archie B. McMilland, who were, by judgment of the district court rendered on February 11, 1915, recognized as the heirs of and placed in possession of all the property belonging to their deceased father and mother; that one of the brothers, Andrew J. McMilland,. died, without issue, in 1915, whereupon petitioner and her sister, Mrs. Pettaway, and their brother, Archie B. McMilland, were, by judgment of court dated March 16, 1915, recognized as his sole heirs and sent into possession of all of his property.

She further specially alleged that her father and mother took actual, physical possession of said land as owners under said deed and continued to so occupy and possess the same until their death,- and that- subsequently thereto petitioner and her brothers and sister continued to occupy and possess the same until their death, and that subsequently thereto petitioner and her brothers and sister continued to occupy and possess said property down to the date of the filing of this suit, and that the possession of her father and mother and that of herself and sister and brothers was as owners, was continuous, peaceable, and uninterrupted to the date on which defendant took possession of that portion thereof now in dispute.

Plaintiff further alleged that the tract of land inherited by her and her sister and brothers was partitioned by notarial act in 1915, and that the particular property now in dispute was set apart to her in the act of partition.

Upon defendant’s alleging that he was a tenant of the Summer Grove Baptist Church, a religious organization, that organization was made defendant by order of court and all subsequent proceedings were carried on against it.

An exception to the citation and an exception of no cause of action were filed in limine, both of which being overruled by the court.

The substituted defendant filed answer denying plaintiff’s ownership of said' land, and especially alleged that it owned the property under “good and sufficient title” obtained from Lee A. J. Hughes by deed in 1856.

It especially averred that it had been in undisturbed adverse, notorious and peaceable possession of said property from that time to this “having a graveyard on the same, and therefore pleads the prescription of ten and thirty years”.

Subsequently defendant amended its answer by setting out a description of the land it claimed to own as follows:

“A certain tract of ground in the W1/» of the SE% of Section 4, Township 16, Range 14 Caddo parish, Louisiana, to-wit: Beginning at the northeast corner of said 80 acres, thence south to a station designated as No. 2, on the enclosed plat to point for starting point; thence south 14 chains 50 links, thence west 5 chains 50 links, thence north 4.5 degrees west 6 chains and 27 links, thence north 36.5 degrees east 10 chains and 21 links to point No. 2 said starting, being 6 chains and 96 links from the corner, of said 80 acres. All of which will be fully shown by plat and field notes filed and recorded herewith, said piece of ground being in Caddo parish, Louisiana, and known as the place where the Summer Grove Church now stands as per deed recorded in conveyance book “I”, page 737 of the Recorder’s Office of Caddo parish, Louisiana, on March 25, 1856.”

There was judgment rejecting plaintiff’s demand and recognizing defendant’s ownership of the land described in its answer and the plaintiff appealed.

OPINION

The exception to the citation and the exception of no cause of action were overruled by the district court and as no mention is made of the court’s ruling by counsel in brief we take it that they are abandoned.

The small piece of land, 1.12 acres,, in dispute, is situated in the W% of the SEji of Section 4, Township 16 North, Range 14 West.

That particular Governmental subdivision of land, according to the deeds and plats in evidence, was acquired from the United States Government by John McCaws in 1848. There is no contention that it was not properly severed from the National domain.

John McCaws, the entryman, sold to Mrs. Elizabeth Hughes in 1848, and Mrs. Hughes and her husband subsequently sold or donated the same property to their son, Lee A. J. Hughes who, in turn, sold to tlie Summer Grove Baptist Church, the defendant herein, the tract of land now claimed hy defendant, in March, 1856. However, in the deed which Hughes made to the defendant, the tract of land is described as being in the W% of the_NEI4 of Section 4. There is no doubt that the land intended to be sold is in the W% of the SE14 of that section, for the deed recites that the small tract of land sold is “known as the place where the Summer Grove Baptist Church now stands”, and it is clear from the maps and other evidence in the case that said church was situated in the wy8 of the SB% of that section.-

The land, therefore, which defendant intended to purchase and of which it took and held possession, is situated one-half mile south of the land described in the deed.

In arriving at our decision in this case, we have considered the description in the deed from Hughes to the Church as we think it was intended to read, which would place the land acquired by it in the W% of the SE%. of that section. .Therefore the error in the description need not be further discussed.

At some time prior to 1856 the Summer Grove Baptist Church built a house of worship near the Shreveport-Mansfield public road in the W% of SEy, of Section 4 on land which it did not own.

Subsequently it purchased from Hughes the land on which the church was situated, described, for practical purposes, as beginning at a point on the said Shreveport-Mansfield public road and running north 36 degrees and 30 minutes east about 670 feet along thé southeast edge of the said public road, thus giving the tract a frontage of 670 feet on that road, and running thence due south on the quarter section line a distance of 957 feet, thence west 365 feet, and thence north to said road about 413 feet, to the place of beginning.

The small triangular piece of land claimed by plaintiff and now in dispute lies west of and adjacent to the above described lo't and is enclosed by lines as follows:

Beginning on the public road at the northwest corner of the church lot, run thence north on the west line of said church lot to the southwest corner of said church lot, thence west 296 feet to the public road, thence north 30 degrees and 36 minutes east on the southeast edge of said road 426 feet to the northwest corner of the church lot.

It is therefore not included in the description of the lot purchased by the church; so that if the church owns the land in dispute its title is based upon prescription and not upon its deed.

The church building was located on, the land described in the deed. It remained there and was used by the congregation until about fifteen years ago when it was torn down and removed and the congregation after its removal held their services in the public school building not far away. Whether the church lot proper was ever enclosed or not is not clear. One witness says he recollects a fence around it, others do not recall that it Was ever fenced, and the one who recalls a fence does not know just where the fence was located. There is no testimony in the record that the land in dispute was ever enclosed as- a part of the church lot or that it was ever occupied by the congregation for any purpose. In view of the fact that the church building was on the land described in its deed, and in the absence of any testimony to the contrary, we must assume that the defendant during all the years from 1856 down to the date of the removal of the building occupied and possessed only the land within the calls of its deed.

Civil Code, Article 3498.

In fact the defendant, in answer, does not claim to own any land except that which is described in its deed. It sets up its deed and its chain of title and avers:

“* * * that it has been in the undisturbed, adverse, notorious, and peaceable possession of said property” through all the years.

“Said property” is the property described in the deed, and the defendant apparently claims no other. The suit was defended, therefore, upon the theory that the land in dispute was part of the tract which defendant had purchased.

But the testimony of C. D. Evans, the civil engineer and surveyor, who surveyed the land, and the plat made by him and filed in evidence, show that the land claimed by plaintiff is not embraced within the calls of the church’s deed but is west of and adjacent thereto. The testimony of Evans, the surveyor, on that point is undisputed. -Therefore, confining defendant to its technical plea of ownership, a further consideraiton of the case is unnecessary.

But giving defendant the advantage of all the testimony it introduced to establish its title to the, land in dispute by prescription, it is no better off. In order to establish its title by prescription the defendant, over plaintiff’s objection, introduced testimony showing that there is now and has been since the establishment of the church a graveyard there, a portion of which is on the land purchased by it and a portion of it on land adjacent thereto.

The theory upon which, this testimony was introduced and admitted by the court is that the use of the land as a graveyard by the church establishes defendant’s title thereto by prescription of thirty years.

Conceding that under some conditions a church could acquire property in that manner, yet the conditions as disclosed by the facts in this case can afford defendant no relief. The graveyard is not confined to any particular plot of ground but the graves are found scattered promiscuously over a considerable area. The graveyard was never enclosed and there was never any formal dedication of it by the owner, for the use of the church or for the use of the public generally. It is in evidence that at one time some one erected a fence between the pasture owned and used by plaintiff and the graveyard to keep the stock off the graves. That was within recent years and was not done by defendant. There is no evidence whatever that the church as an organization ever assumed control over the graveyard or that it ever claimed to own the land on which the graves are found, except that portion of it which is on the land described in its deed. It is not a church cemetery but a community burying ground used by any and all who desire to bury their dead there.

Doctor Resser, a witness called by defendant, who was 76 years old at the time of the trial and who was reared in that neighborhood and lived there practically all of his life, was asked:

“Was every man buried there a member of that church?

and he said:

“O-h, no, not all of the members, some of them were. It wasn’t a church proposition at all, it was a sort of a public graveyard or cemetery.”

Mr. P. P. Keith, 78 years old, and who has known the church and graveyard practically all his life, said that no one had to get permission to bury there. And there is' no testimony whatever that the church ever exercised any dominion or control whatever over the graveyard.

On the other hand, plaintiff and her brother say that those who wanted space there always got permission from their father who owned the land.

We think it clear that defendant, as a religious organization, has not acquired title by prescription to the land surrounding its church by virtue of the fact that some portion of it has been used as a public or community cemetery. There is no testimony to the effect that there are any graves on the particular piece of land in controversy in this suit. The original defendant, Hendricks, has a store thereon and he testified that the nearest grave to the store is more than 100 feet away and other witnesses said that there were graves as near as 60 feet from the store.

On just what part of the triangular piece of ground the store is situated, is not shown; therefore we are not able to determine whether there are any graves on this particular- piece of land or not. The question of the rights of the individuals who have used this property as a burying ground is not here involved. The question here is whether the defendant, a religious organization, has acquired title by prescription by virtue of the fact that the land has been used as a burying ground, if, indeed, it may be said that any graves are found thereon.

When a parcel of land has been set apart by the owner thereof as a place for burial of the dead, those who use it for that purpose with the consent of the owner of the land may acquire the ownership of- the plots so used by adverse possession.

Ulverman vs. Sheppard, 88 W. Va. 315, 106 S. E. 705.

“If one enters upon, sets apart and asserts an exclusive right to a plot of land as a family burying ground for a series of years, the use of the land for such purpose constitutes an actual possession. But where the possession is not under color of title, the holding will be confined to such part of the land as is covered by the graves.”

1 Cyc. 994.

In order to acquire a prescriptive title to real estate, the possessor shall hold in. fact and in right as owner.

C. C„ Art. 3487.

The land in dispute in this case has not been held by the defendant either in fact or as owner. Defendant had title to certain described land and is presumed to have possessed according to its title.

C. C., Art. 3490.

Witnesses for defendant testified that it was their understanding that the defendant owned the small piece of land in controversy; but there is no testimony that it ever exercised any dominion or control over it and none to show that it even claimed to own it.

■As to plaintiff’s title.

The piece of land in controversy is in the WYz of SE% of Section 4, Township 16 North, Range 14 West. The whole of that subdivision was acquired by plaintiff’s father from the .Succession of A. J. Pickens at public sale in 1876. His deed was recorded in the Notarial records of Caddo parish on November 21st of that year. He took physical possession of the land under his deed at once and continued to occupy and possess it up to the date of his death in 1914. His four children, the plaintiff being one of them, were recognized as his heirs and sent into possession of his succession by judgment of the district court in 1915. On March 16, 1915, the heirs, by notarial act, partitioned the property amongst themselves, this particular property being set apart to plaintiff who has possessed it ever since. The testimony and plats filed make it clear that the land in dispute is a part of the tract described and set apart to plaintiff.

Defendant contends that plaintiff has not established her title and he cites the case of Brown vs. Brown, 15 La. Ann. 169, in which it was held that it is not sufficient for the plaintiff in a petitory action to produce merely an act of partition.

“In the petitory action the plaintiff must himself produce title, not a mere paper title but a title which is traced back to an author who had in himself the right of property in the thing sold.”

Plaintiff in this case did more than offer the act of partion. She traced her title back to her father who acquired under a deed recorded in 1876 and proved possession under that deed down to date. We think that is sufficient.

On the question of damages, we think plaintiff failed to make out her case on that point.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed from be reversed and set aside and it is now ordered, adjudged and decreed that the plaintiff is the owner of the following described property claimed by her in this suit, to-wit:

“A triangular piece of land in the W% of the SEi/i of Section 4, Township 16 North, Range 14 West, situated in Caddo parish, Louisiana, located and described as follows: Commencing at the quarter corner on the southside of Section 4, Township 16 North', Range 14 West, which corner is marked by a Ford axle, thence north on half section line, 1576.32 feet to a point; thence east 928.35 feet to the point of beginning; thence south 40 degrees 30 minutes east, 330.6 feet, thence west 296.41 feet thence north 39 degrees 22 minutes east, 426.3 feet to the point of beginning, the northwest side of which is the southeast side of the Mansfield road and contains 1.12 acres.”

It is further ordered that plaintiff’s demand for damages be rejected. Defendant to pay all costs.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No. -
    First Circuit
    STRICKLAND v. WINN
    (January 28, 1926, Opinion and Decree)
    (March 2, 1926, Rehearing Refused)
    (See George Hathaway vs. Hizekia Winn, page 467 herein.)
    Appeal from the Parish of Jefferson Davis, Hon. Thomas F. Porter, Judge.
    Action by Mrs. Dorothy Strickland against Hizekia Winn. There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    McCoy and Moss, of Lake Charles, attorneys for plaintiff, appellee.
    Modisette and Adams, of Jennings, attorneys for defendant, appellant.
    ELLIOTT, J. Dissents for written reasons.
   MOUTON, J.

This case presents practically the ' same issues which were disposed of by judgment rendered in the suit George Hathaway vs. Hizekia Winn, et al. For the reasons therein assigned, it is ordered and decreed that the judgment of the lower court be hereby increased to the sum of five hundred ($500.00) dollars and as thus amended it be affirmed with cost.

I dissent for reasons assigned in case: Hathaway vs. Winn, this day decided.

(Signed) CLAY ELLIOTT, Judge.


text:
    No. -
    First Circuit
    STRICKLAND v. WINN
    (January 28, 1926, Opinion and Decree)
    (March 2, 1926, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Sequestration — Par. 18, 24, 25, 27; Act of God — Par. 2.
    Although the obligation of a forthcoming bond in sequestration proceeding under Article 280 of the Code of Practice provides “that he will faithfully present them, after definitive judgment in case he should be decreed to restore the same to the plaintiff” nevertheless if he is prevented by a fortuitous event or irresistible force from complying with the obligation, he is exonerated from liability and cannot be held for the value of the destroyed.
    (See Civil Code, Article 1933, Paragraphs 2 and 3. Editor’s Note.)
    Appeal from the Parish of Jefferson Davis, Hon. Thomas F. Porter, Judge.
    Action by Mrs. Dorothy Strickland against Hezekia Winn, et al. There was judgment for plaintiff and defendants appealed.
    Judgment reversed.
    McCoy and Moss, of Lake Charles, attorneys for plaintiff, appellee.
    Modisette and Adams, of Jennings, attorneys for defendants, appellants.
   MOUTON, J.

Plaintiff brings this suit on the forthcoming bond against Hezekia Winn and Thomas H. Winn, surety, for the value of the animal. Judgment was rendered below against defendants in solido for $50.00 which the court found to be its true value.

Defendants appeal.

The bond was furnished under Article 280, C. P., which permits the release of movables from seizure in sequestration proceedings upon defendant furnishing the required security. His obligations under the bond are that he shall not send the movables out of the jurisdiction of the court, will not make an improper use of .them, “and that he will faithfully present them, after definitive judgment, in case he should be decreed to restore the same to the plaintiff”. It is with the proper application of the last clause of Article 280, C. P., which appears between the above quotation marks, that we are concerned in the decision of this case.

The proof shows that the horse, Lena, died of a disease known as Blindstaggers and without any negligence or fault whatsoever on the part of Hezekia Winn, the principal on the release bond, in whose possession she was at the time of her death. The obligation of the defendant under the clause before mentioned is to restore the movable or movables to plaintiff if he obtains definitive judgment in the sequestration suit. The article is absolutely silent as to the payment of the value of the article or articles in case of loss or destruction. The following Article 281, which permits the release of immovables, provides that in case of the waste or loss of the fruits of the property, the party on the bond shall pay for their value. It seems to us if the law had intended to require the payment of the value of the movables released under Article 280, a provision similar to the one found in Article 281 would have been inserted in that article of the code.

Counsel for plaintiff contends that Hezekia Winn, principal on the bond, received the animal in bad faith, and that although the loss of Lena was caused by a fortuitous event, he is nevertheless liable for its value under provisions of Article 2312, Civil Code. The possession of the defendant with which we are concerned in the determination of this suit, was obtained under a release bond, his possession was allowed by judicial authority, was legal, was not in bad faith, and is not controlled by Article 2312, Civil Code.

The obligation of the defendant was contractural. His obligation was to restore Lena to the plaintiff. This is what he was specifically obligated to do under his bond or contract. The general rule in such cases is, if the obligor fails to execute his obligation, he becomes responsible for the inexecution of his contract. When he is, however, prevented by a fortuitous event or irresisitible force from complying with it, he is exonerated from liability and cannot be held for the value of the thing destroyed. C. C., 1933, paragraph 2-3.

In the decisions of our courts on this subject, no consideration is given to the articles of the Civil Code above referred to by us, and- seem altogether restricted to the provisions of Article 280, C. P. We shall therefore direct our attention to an analysis of the decisions of our courts which are pertinent to the issue presented under that Article of the Code of Practice.

Counsel for plaintiff refers us to thé ease of Segassie vs. Piernas, 26 La. Ann. 742, as being decisive of this vexed question. In that cases the defendant was held responsible for the .value of the fruits and revenues of movable property. Article 280, is certainly entirely silent insofar as impos: ing any liability on a release bond for either the fruits or revenues of movables'. Such a liability is provided for under Article 281, for the fruits or revenues derived from landed property. That decision does not enter into a full discussion of the proposition in question, throws little light on the subject, and is somewhat unsatisfactory.

In Clapp vs. Seibrecht, 11 La. Ann. 528, the subject under discussion was fully threshed out by a divided court, two of the justices dissenting. In that case, Lefort was running a confectionery store in which some of his furniture was burdened with a vendor’s privilege in favor of Clapp, the plaintiff in the suit. Blondeau, Lefort’s lessor, had a lessor’s privilege on the movable effects he had in the store including the furniture. This furniture was seized by Clapp and was released on bond by Lefort and Seibrecht as his surety. Blondeau, feeling perfectly secure as lessor, suffered his rent to run until it had accumulated into a large sum. Blondeau obtained judgment for his rent and had the furniture sold. Later, Clapp got judgment on his vendor’s privilege, but when the fi. fa. was issued on his judgment the furniture had already been sold by Blondeau, and the fi. fa. was returned nulla bonna.

The court found that it was an act of nonfeasance on the part of Lefort the principal on the bond to have allowed the rent to increase in favor of his lessor. It also found that the surety, Seibrecht, was anxious to keep Lefort in business to secure a claim he had against him and with co-managers, was conducting the Lefort business for themselves and other creditors.

Under that state of facts, and by reason of the strong equities which existed in favor of the plaintiff, Clapp, Seibrecht, the surety, was held liable to ;.him> for amount of the judgment he had obtained against' Lefort. In that case the majority of the court,, in .referring ■ to Seibrecht, surety on' the sequestration bond, said: that' he was- responsible, “unless he shows that the principal on the obligation had complied with it or was prevented by overpowering force or a fortuitous, event”. The court said, the latter is not pretended. This is certainly not the case here, as it is clearly shown that Hezekia Winn, the principal on the bond, was clearly unable ■ to comply with it, because of the death of the animal released, which was caused by an overpowering or irresistible force.

In a later case; LaBarre vs. Burton-Swartz Cypress Co., 133 La. 862, 63 South. 380, the property released on bond was subsequently seized under a tax lien, and was sold. It was there held that the surety on the. bond was not liable because the tax privilege was superior to any other claim or lien on the property. The court in that case made special reference to the suit of Clapp vs. Seibrecht, 11 La. Ann. 528, and took occasion to remark that the court had in that case, based its finding on equitable considerations to which we have hereinabove alluded to. In the LaBarre vs. Burton-Swartz Cypress Co., 133 La. 862, 63 South. 380, above referred to, the court said that a number of authorities from other states held that it was a sufficient defense in a suit on a forthcoming bond to show that the property had been taken from the obligor under a paramount title or legal process. The expression of the court in that case shows that it was inclined to adopt the views of the courts of other jurisdictions on this subject. In view of this apparent disposition of the court to rely on common law jurisprudence in solving this question, we think, it is not inappropriate to' quote from R. C. L., vol. 17, p. 246, par. 128, where it is said:

“It seems that if the property is lost or destroyed without the fault of the obligors, as in the case of fire, such obligors will be ■ held to be discharged, their liability resting wholly on a contract, the performance of which has been rendered impossible.”

Here, the obligors were certainly not insurers, and we can not see how they can be held when the property has been destroyed by a superior force. The performance-of the contract has been made impossible and they should be discharged from their obligations thereunder.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and that the demand of the plaintiff be rejected at her cost.


author: MOUTON, J. ELLIOTT, J.

text:
    No. -.
    First Circuit
    SUCCESSION OF SIMONETTE REASON FALLS
    (December 8, 1925, Opinion and Decree)
    (January 28, 1925, Rehearing Refused)
    (Original Opinion in 2 La. App. 759)

      (Syllabus by the Editor.)
    ON REHEARING
    1. Louisiana Digest — Bastards and Natural Children — Par. 7, 21.
    If there is no compliance with the requirements of acknowledgments as prescribed by Article 203 of the Civil Code, even though the mother has raised the child as her own child, the mother of an illegitimate child cannot inherit from such child under the provisions of Article 922 of the Civil Code.
    2. Louisiana Digest — Bastards and Natural Children — Par. 21.
    If the mother of an illegitimate child has not complied with the requirements prescribed by Article 203 of the Civil Code, the natural brothers and sisters of this child can inherit from her only to the exclusion of the state and not to the exclusion of her surviviflg husband.

      (See original opinion of this case published in 2 La. App. 759. Editor’s note.)
    Paul Kramer, of Franklinton, attorney for plaintiff.
    Chas. J. Mundy, of ' Thibodaux, attorney for opponent.
   MOUTON, J.

Simonette Reason Falls, the illegitimate daughter of Mary Bingham and Washington Reason, died in June, 1913, intestate and without issue of her marriage with Joseph Falls, her surviving husband. At her death she left an estate in community with her husband, and some separate property. In an ex parte proceeding, Mary Bingham, the mother of deceased, and her children born of her marriage with Robert Bingham, now deceased, were placed in possession of the succession of Simonette Reason Falls.

The lower court, on the opposition of Joseph Falls, surviving husband of Simonette Reason, and opponent herein, rescinded the decree putting Mary Bingham and her children in possession, and decreed that Joseph Falls was entitled to inherit, as surviving husband, the entire succession of his wife in the community and also all of her separate estate.

From this judgment plaintiffs appeal.

It is not disputed that the deceased was born out of wedlock, and was the natural illegitimate child of Mary Bingham, her surviving mother, and Washington Reason, now deceased. The proof shows that Simonette Reason was the child of Mary Bingham, was recognized by her mother as her child and was generally known as such in the community where they lived. It is equally well established that Simonette Reason, deceased, was never acknowledged by her mother, Mary Bingham, either by a declaration in a notarial act or by baptismal registry, as provided for in Article 203, Civil Code. The question presented for decision is as to whether or not the rearing of Simonette Reason as her child by Mary Bingham was such an acknowledgment as to entitle her to be called or classed as a natural child; and, upon her death, without posterity, whether her mother was vested with the right of inheritance, entitling her to claim the estate of her. deceased daughter under Civil Code, Article 922. This presents the vital issue in the case.

As it has been shown by the evidence that Simonette Reason was the child of Mary Bingham and had always been recognized as such by the mother, such proof would have been sufficient to show an acknowledgment by her mother, and would have entitled her to inherit from her mother, without proof of an acknowledgment by a notarial act or baptism, as prescribed by Article 203, Civil Code. This is now settled by our courts! Briggs vs. McLaughlin, 134 La. 133, 63 South. 851; Taylor vs. Allen, 151 La. 82, 91 South. 635, Murdock vs. Potter, 155 La. 145, 99 South 18.

Here, however, it is the mother who, claiming by way of inheritance from the child, and not the child. from the mother, as was the situation in the decisions above cited.

In the Succession of Lacoste, 142 La. 673, 77 South. 497, where, as in this case, the mother was the claimant of the succession of an illegitimate child, the court said:

“The mother of an illegitimate son who has died without posterity does not inherit his estate unless the child was legally acknowledged by her, either in the registering of the birth or baptism of the child, or by a declaration made before a notary public in presence of two witnesses, as required by Article 203 of the Civil Code.”

In the course of the opinion in the case from which the above is quoted the court said: •

“The fact of an informal recognition by the mother of an illegitimate child as her own could not have the effect of converting the:-status of a bastard into that of a natural child, thus conferring ,on the mother the • right of inheritance from such child under the' provisions of Article' 922, Civil Code.”

In the instant case there was an informal recognition of the deceased as her child by Mary Bingham, and, as before stated, there was no compliance by her with the requirements exacted by Article 203, Civil Code. Simonette Reason Falls was, therefore, never legally acknowledged by her mother to entitle the latter to inherit her estate.

The other claimants are the children born of the marriage of Mary Bingham to Robert Bingham, subsequent to the birth of Simonette Reason Falls, who, being an illegitimate child, could have no relatives in a legal sense in the ascending or collateral line. C. C. 328; Madame Felix Montegut vs. Bacas, 42 La. Ann. 158, 7 South. 449.

The children of Mary Bingham, issue of her marriage with Robert Bingham, are the natural brothers and sisters of Simonette Reason Falls, and could inherit from her only to the exclusion of the state.

tier surviving husband, Joseph Falls, has the right to inherit her estate to the exclusion of these claimants. Succession of Duclosange, 2 La. Ann. 98, cited approvingly in Madame Felix Montegut vs. Bacas, 42 La. Ann. 158, 7 South. 449. As surviving husband he is entitled to recover the entire estate of his deceased wife. We are in error in holding otherwise in our original opinion.

It is therefore ordered and decreed that our original judgment be reversed and annulled; and it is further decreed that the judgment appealed from be reinstated .and affirmed with cost.

DISSENTING OPINION OF

ELLIOTT, J.

As above stated we first held, by a majority opinion, that Mary Bingham had been called by the law ■ to the succession of Simonette Reason Falls, her natural child, to the exclusion of Joseph Falls, her husband.

That acknowledgment’ by “a declaration executed before a notary public in the presence of two witnesses” was not necessary; and that acknowledgment by the registration of the birth or baptism of her child was not necessary.

The opinion was based on the belief that Taylor vs. Allen, 151 La. 82, 91 South. 635, and Murdock vs. Potter, 155 La. 145, 99 South. 18, had overruled Succession of Lacoste, 142 La. 676, 77 South. 497 and Perkins vs. Brownell-Drews Lumber Co., 147 La. 337, 84 South. 894; Minor vs. Young, 148 La. 610, 87 South. 472; and that the Supreme Court intended to adhere to the former jurisprudence on the subject, as stated in Succession of Vance, 110 La. 760, 34 South. 767, in which it was said:

“We adhere to the jurisprudence authorizing methods of acknowledgment of illegitimate children, otherwise than as laid down in C. C., Article 203.”

This court now holds that our first view as to the scope and result of the decisions, Taylor vs. Allen, 151 La. 82, 91 South. 635, and Murdock vs. Potter, 155 La. 145, 99 South. 18, were erroneous.

That Succession of Lacoste and Perkins vs. Brownell-Drews Lumber Company had not been overruled as supposed, and were different from Taylor vs. Allen and Murdock vs. Potter in this: That in Succession of Lacoste and Perkins vs. Brownell-Drews Lumber Company, as in the present case, a mother by inheritance from her child, while in Taylor vs. Allen and Murdock vs. Potter, a child was claimed from its mother. Mary Shepherd vs. Robert Elfert, appealed from the Parish of Assumption and decided by this court in May, 1923, is in line with Succession of Lacoste, 142 La. 676, 77 South. 497, and Perkins vs. Brownell-Drews Lumber Company, 147 La. 337, 84 South. 894.

I was not a member of this court at the time the Shepherd case was decided, and was not aware of the decision until it was called to my attention on this rehearing.

In the Shepherd case and in Succession of Lacoste, 142 La. 676, 77 South. 497, and Perkins vs. Brownell-Drews Lumber Company, 147 La. 337, 84 South. 894, the court holds that under the law C. C., Article 922, when a mother claims by inheritance from her child, she must show an acknowledgment of her child in one of the ways required by C. C., Article 203, on the subject of legitimation.

I am reluctant to hold that the Civil Code, Articles 918 and 922, contemplates a difference to be observed between the method of acknowledgment necessary to enable a child to inherit from its mother, and that necessary to enable a mother to inherit from her child; because, in my opinion, no difference is contemplated by the Code. And I am not clear that the Supreme Court means for the inferior courts and practitioners to understand that the child claims by inheritance from its mother, Taylor vs. Allen and Murdock vs. Potter must be looked to as guiding decisions on the subject; but when the mother claims by inheritance from her child, then Succession of Lacoste, 142 La. 676, 77 South. 497, and Perkins vs. Brownell-Drews Lumber Company, 147 La. 337, 84 South. 894, shall be such, because it is not so expressly held.

The Articles 918 and 922 are in pari materia. The subject matter with which each deals is the same: “Inheritance by irregular heirs.”

It seems to me that the two articles contemplate the same method cf acknowledgment; the language, of each is similar. Article 918 reads: “Natural children are called to the legal succession of their natural mother when they have been duly acknowledged by her”; and Article 922: “The estate of a natural child belongs to the mother — who has acknowledged him,” etc.

The difference in the wording does not, to my mind, intend a distinction between the method of acknowledgment to the extent that if it is a mother claiming to inherit from her child, then Article 203 on the subject of legitimation governs the method of acknowledgment; but if it be a child claiming to inherit from its mother, then acknowledgment such as was shown by Mary Bingham in this case is sufficient.

The fact that the mother can make an acknowledgment such as the Article C. C. 203 provides for, and the child cannot, does not appear to me to be contemplated by the Code as ground for such a fundamental difference in method.

As soon as the intention of the Supreme Court is clear as to whether or not the two lines of decision are inconsistent, my adherence is ready; but as the latter cases, Taylor vs. Allen, 151 La. 82, 91 South. 635, and Murdock vs. Potter, 155 La. 145, 99 South. 18, appear to me to be just as applicable, whether a mother is claimant from her child, or a child from its mother, it is proper that I should dissent until such time as the Supreme Court shall leave no room for doubt on the subject.

I therefore dissent, and contend that our first opinion herein is correct and should be reinstated ■ and -made the final judgment of this court.


author: LECHE, J.

text:
    No. -.
    First Circuit
    VEILLON v. ESTATE OF PREVAL LAFLEUR
    (December 22, 1925, Opinion and Decree)
    (January 28, 1926, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Laws—Par. 85.
    Article 2382 and Article 3252 of the Civil Code are laws in pari materia and controlled by the same rules of interpretations.
    2. Louisiana Digest — Executors and Administrators — Par. 117.
    A wife who has abandoned her husband for several years, absolutely ignoring him and forgetting him, is not entitled to the homestead allowance provided by Article 3252 of the Civil Code, even though she is in necessitous circumstances.
    Appeal from the Parish of Evangeline. Hon. B. H. Pavy, Judge.
    Suit by Mrs. Bridget Veillon against Estate of Preval LaEleur.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed.
    H. L. Garland, of Ville Platte, attorney for plaintiff, appellee.
    J. H. Dore, of Ville Platte, attorney for defendant, appellant.
   LECHE, J.

Plaintiff was lawfully married to the deceased, Preval Lafleur. They were, at the time of their marriage, over sixty years of age, and had- long previously passed the halfway post in the course of average human life, the husband being somewhat older than the wife. They lived together after their marriage for about two years, the evidence as to the length of their cohabitation, as well as to many other important facts, being vague and uncertain. About eighteen months after the marriage, Mrs. Lula Lafleur, a daughter by Preval Lafleur by a previous marriage, a young woman, possibly twenty-five years of age, came to live with her father and stepmother. Some six or eight months thereafter, while Mrs. Lula Lafleur was a member of the household, plaintiff departed from the matrimonial domicile, abandoned her husband, and severed all relations with him, although the friends to whose house she removed lived only some four or five miles from her husband’s home. The evidence is to the effect that she thus lived apart from her husband for about four years, when he became ill and died. Under these circumstances she makes demand for the one-thousand-dollar homestead, allowed out of the husband’s estate to the surviving widow left in necessitous circumstances, under Article 3252, C. C.

The plaintiff is shown to be penniless and both her memory and her eyesight have become impaired, and, as described by her counsel, she is truly an object of pity. Yet there is little doubt that she abandoned her husband voluntarily, deliberately and without justification, remained away from him during the four last years of his life, absolutely ignoring him and forgetting him, until the occasion presented itself when she could make claim to part of his estate,- said to be worth about two thousand dollars.

In justification of her departure, she says that her husband once threatened to strike her, and that he wanted her to leave. There is no evidence of any assault upon her by her husband, and it is shown by several witnesses that when she left the matrimonial home she did so of her own free will, her husband telling her that he was not driving her away, that if she left him she would lose her rights. She admits elsewhere in her testimony that she does not remember clearly the circumstances under which she left her husband. Again she intimates that the reason she went away was that Mrs. Lula Lafleur, her stepdaughter, had caused disagreement between herself and her husband, but she also says that she and Lula were on cordial and friendly terms when she left. Her testimony is replete with apparent contradictions and varies materially from that' of three other witnesses who were present when she separated from her husband. She accounts for this by acknowledging that her memory is defective.

We have no doubt, after considering all the testimony, that plaintiff left her husband because of trivial differences and petty quarrels that arise frequently between husband and wife in the best regulated households. We are further convinced that no grounds are shown in the record to justify plaintiff in her conduct.

The “vexata quaestio” in the case is whether a court of justice moved by sympathy and in a spirit of benevolence should place the stamp of approval upon the conduct of this unfortunate woman by acceding to her request, or coldly track the law as interpreted in the jurisprudence and refuse the same. It is truly said that the province of a court of justice is “jus dicere, non jus dare”.

It was held in the Succession of Justus, 44 La. Ann. 725, 11 South. 95, involving a claim for the marital fourth under Article C. C. 2382, and in Richard vs. Lazard, 108 La. 544, 32 South. 559, wherein there was a demand for the $1000.00 homestead allowed by Article C. C. 3252, that these laws are in pari materia and controlled by the same rules of interpretation. In the latter case a wife who had abandoned her husband for several years and who had been guilty of gross misconduct towards him, was refused the benefit of the widow’s homestead. In the Succession of Rogge, 50 La. Ann. 1228, 23 South. 933, the surviving husband had left the wife without cause or reason and had parted from her for eight years when she died. His demand for the • marital fourth was refused in an elaborate and logical opinion by Mr. Justice Blanchard. The facts as they appear in the present record are very similar to those in the Succession of Rogge and the reasons for judgment, as therein stated, apply with equal force in the present case.

The leaving was not caused by the husband’s death, as contemplated in the statute, but it was the result of plaintiff’s own deliberate and unjustifiable act.

We are of the opinion that the judgment herein appealed should be reversed and plaintiff’s demand refused at her costs, and it is so ordered.


text:
    No. -.
    First Circuit
    AUTO TIRE COMPANY v. WADE E. PLAUCHE CO., INC., ET AL.
    (December 22, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Obligations — Par. 76.
    One who purchases chattel mortgage notes made to secure the purchase price of automobiles under an agreement with the selling agency but with no special agreement to purchase all the notes contracted by that agency, is under no obligation to insure the automobiles sold until he has purchased the notes secured by that automobile.
    Appeal from the Parish of Calcasieu. Hon. Thomas E. Porter, Judge.
    Suit by Auto Tire Company, Inc., against Wade E. Plauche Co., et al.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    McCoy & Moss, of Lake Charles, attorneys for plaintiff, appellant.
    Cline & Plauche, of Lake Charles, attorneys for defendant, appellee.
   LECHE, J.

Plaintiff is engaged in business in the city of Alexandria, and part of its business consists in selling automobiles on time. In the present suit it alleges, in' substance, that it entered into a contract with defendant whereby it was to sell to defendant, and defendant was to buy from it, all the notes secured by vendor’s lien and chattel mortgage, which it might receive in the eourse of its business. It alleges many ' other details and stipulations to be observed in the performance of the contract, which was made verbally, and that it had complied with all of such stipulations. It further alleges that in compliance with said agreement it had sold an automobile in part payment of which it had received a note secured by vendor’s lien and privilege and chattel mortgage, which it forwarded in the manner provided in the agreement, to the defendant company doing business and domiciled at Lake Charles, and that in violation of the agreement defendant refused to take up and buy said note. It further alleges that one of the conditions of the agreement was that defendant would insure or cause to be insured every automobile thus sold on time, from the moment plaintiff would deposit the notes in a bank at Alexandria, for transmission to defendant at Lake Charles. Plaintiff further avers that after it had deposited said note in the bank, in Alexandria, and complied with all the stipulations in the agreement with defendant, the automobile was destroyed by fire, and defendant, . having failed to insure the same as it had obligated itself to do, refused to take up said note, thereby causing plaintiff a loss equal to the amount of said note, for which it presently sues. That defendant had been told and informed that plaintiff carried insurance on all automobiles sold by it until such time as the deferred installments for the price thereof were fully paid, and that relying upon the agreement on the part of defendant, that defendant would effect such insurance as soon as the sales had been executed and the notes were drawn secured by vendor’s lien and chattel mortgage, it had cancelled its own insurance policy, and that the automobile securing the note forwarded to defendant was uninsured when destroyed by fire, and that the loss should be borne by defendant.

To this action several defenses were interposed, only one of which it is necessary to discuss in this opinion.

On the trial of the case, plaintiff was unable to prove the alleged conditions of the contract. H. J. Powers, manager, secretary and treasurer of plaintiff company and principal witness on its behalf, frankly admits that, under the terms of the contract, plaintiff was under no obligation to sell all of its automobile paper to defendant, and that there was no obligation on the part of defendant to take all the paper or any paper that might be offered to it by plaintiff. This testimony is fatal to plaintiff’s right of recovery. The trial judge so found and we agree with him.


text:
    No. -.
    First Circuit
    POSTELL v. FERRIS
    (April 1, 1926, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Automobiles—Par. 4.
    A person driving an automobile at night with glaring headlights should exercise the greatest care and vigilance when approaching or about to meet another vehicle.
    2. Louisiana Digest — Automobiles — Par. 4 (d).
    For an automobile to drive at the rate of speed of thirty-five miles per hour either on the left side or in the center of the road indicates lack of care and diligence.
    (Civil Code, Article 2315. Editor’s note.)
    Appeal from the Parish of Ascension. Hon. Samuel A. LeBIanc, Judge.
    Action by Charles E. Postell against N. Ferris.
    There was judgment dismissing the suit and plaintiff has appealed.
    Judgment affirmed.
    Schwing & Obier, of Plaquemine, and John Martin, of Lake Charles, attorneys for plaintiff, appellant.
    Jos. Nicolosi, of Plaquemine, and Howell & Wortham, of Donaldsonville, attorneys for defendant, appellee.
   LECHE, J.

This suit is for damages from an automobile collision. The district judge refused both demands and dismissed the suit. Plaintiff has appealed.

Postell, driving a Buick touring automobile, was on his way from White Castle to Plaquemine, and Ferris, driving a Ford, was going from Baton Rouge to Donaldsonville. They met between 11 and 12 o’clock at night two or three miles below Plaquemine, and the front wheels of the two cars interlocked. Each one claims he was on the right side of the road, which is an impossibility, for, if so,' there would have been no collision. The road was straight and the evidence is overwhelming that the headlights of the Buick were focused directly on the Ford. There were four persons in defendant’s automobile and all of them testify that the Ford was on the extreme right of the road and that they were blinded by the headlights of the Buick. The evidence also shows that Postell was running at thirty-five (35) miles and Ferris at fifteen (15) miles per hour. After the collision the Buick was in an oblique position with the right front wheel in the ditch at the base of the levee and the right rear wheel about three or four feet from the edge of the same ditch. The Ford was extricated from under the left front fender of the Buick and shoved to the right side of the road to clear the passageway.

A Buick is about double the weight of a Ford, and its position after the collision, considering the momentum from its weight and speed, indicates that it came from the left and dragged the Ford into the ditch near the levee. This seems to support the theory of defendant that Postell was either on the left or in the center of the road, and does not sustain the claim of Postell as to his having followed a course on his right near the levee. We believe that the facts and circumstances, shown by the evidence, justify the conclusion that plaintiff was at fault and, while defendant may also have been at fault, that question is not involved in this appeal, as defendant has neither asked for an appeal nor made answer to that taken by plaintiff. A person driving an automobile at night with glaring headlights should exercise the greatest care and vigilance when approaching and about to meet other vehicles. To drive at a speed of thirty-five miles an hour, either on the left side or in the center of the road indicates lack of care and diligence.

We believe the trial judge has correctly decided the issues herein and his judgment is therefore affirmed.

      Right side or left side of the road, as used, are relative terms indicating the right or left of a person or object in the road, facing the direction in which such person or object is moving.


author: ELLIOTT, J.

text:
    No. -.
    First Circuit
    SAMUEL v. GULF LUMBER COMPANY
    (December 22, 1925, Opinion and Decree)
    (January 28, 1926, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Master and Servant —Par. 159, 159 (a).
    An employee injured while at work can recover sixty per cent of his wages if permanently totally disabled, compensation, however, to be paid during disability not beyond four hundred weeks under Section 8, Subsection 1 (b), of the Workmen’s Compensation Act No. 20 of 1914, as amended by Act No. 43 of 1922.
    (The recent amendment of Section 8 of Act No. 20 of 1914 is Act 216 of 1924, which grants sixty-five per cent of wages as compensation. Editor’s note.)
    Appeal from the Eleventh Judicial District Court, Parish of Yernon. Hon. Hal A. -Burgess, Judge.
    Suit by Fred Samuel against Gulf Lumber Company.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.

      Fern. M. Wood, of Leesville, attorney for plaintiff, appellant.
    Thompson & Ferguson, of Leesville, attorneys for defendant, appellee.
   ELLIOTT, J.

Plaintiff, Fred Samuel, alleges that while in the employ of the defendant, Gulf Lumber Company, and in the performance of his work, sawing down trees and cutting them into saw-logs on June 14, 1924, he was violently struck by a log in his back and severely injured, sustaining a partial paralysis of the back, permanent injury to his kidney and bladder, rendering him unable to do work of any reasonable character. He claims 60 per cent of a daily wage of $5.00 for four hundred weeks.

The Gulf Lumber Company in its answer admits that plaintiff was employed and received injury while at work as alleged, but avers that he recovered therefrom. Defendant denies that plaintiff’s present incapacity was caused by the injury received while engaged in its work, or is due thereto, and denies liability on said account.

The district judge rejected plaintiff’s demand and he has appealed. The evidence shows that plaintiff’s condition is at present a total disability, and nothing appears from the evidence indicating whether plaintiff will improve or not; nor what the result will eventually be.

Plaintiff testified without contradiction of any kind that he had been engaged in the work of sawing logs for defendant continuously since 1318, about six years, until he was injured as above stated, and that he has never been able to do any work since. He claims as a witness in his own behalf that his present ailment results from and grew out of the injury he received in his back, kidney and bladder while sawing for defendant.

The evidence shows that when plaintiff was injured defendant sent him to its hospital at Fullerton for treatment. He remained there three or four months under the treatment of the physician in charge who was in the employ of defendant, and the physician there finally discharged him as well; but he was not well. The evidence establishes his physically broken down condition at the time and its continuance ever since.

We know that sawing down trees and cutting them into saw logs is hard work. That such labor requires endurance, manual strength and is trying on the small of the back. A man cannot do such work regularly for six years unless he is in strong robust health.

The’ evidence in the case does not indicate that plaintiff ever failed in his work or showed evidence of any weakness or disease until he received the injury of which he complains.

According to plaintiff’s testimony, and there is nothing to the contrary, his present trouble commenced gradually following his injury, and has continued to grow worse ever since.

Plaintiff admits that he had gonorrhea nine or ten years ago, having reference to the time of the trial; but, so far as he knew, contends that he got well of it. Our conclusion is that plaintiff .got well of it and was entirely well at the time he was engaged in sawing, because if he had not, and the disease tended to develop into the trouble which he now has, it would have done so before he was injured. It would have developed under the exertion in which he was engaged every day, sawing down and cutting trees into logs. It would not have remained dormant under such exertion, only to manifest itself as soon as he was at ease and rest, as it were, in the hospital. The facts satisfy us that plaintiff was a sound, healthy man and not subject to any dormant disease of which his present condition is the outcome; but that his present condition is the direct outgrowth and result of the injury he received while at work for defendant as alleged in his petition.

A number of physicians were sworn as witnesses in the case and expressed the opinion that plaintiff’s present condition was not the result of his injury; while one who had been engaged in treating plaintiff for his ailment, since he left the hospital, expressed the opinion that plaintiff’s condition was the result of his injury received as alleged in his petition, and gives /easons which do not depend on conjecture; but on what appears to be very natural conclusions. The cases cited in plaintiff’s brief, Behan vs. John B. Honor Co., 143 La. 348, 78 South. 589; Fox vs. United Chemical & Organic Products Co., 147 La. 865, 86 South. 311, and Johnson vs. Vernon Parish Lumber Co., 151 La. 664, 92 South. 219, are in line with the facts in the present case.

The plaintiff is entitled to compensation. We find from the evidence that plaintiff earned $4.50 a day and that 60 per cent of his weekly wages will fairly amount to $15.00 per week and will fix his compensation accordingly. Payments to commence from June 14, 1924, and continue for four hundred weeks, subject to credits for the payments already made.

The judgment appealed from is annulled, avoided and set aside and the plaintiff, Fred Samuel, is now given judgment on account of his injuries, against defendant, Gulf Lumber Company, for weekly compensation at the rate of $15.00 per week, commencing from June 14, 1924, and continuing for four hundred weeks, with 5 per cent per annum interest on deferred payments until paid; 'of which time all weekly dues up to December 14, 1924, are to be regarded as paid.

That defendant and appellee pay the cost in both courts.


text:
    No. -
    First Circuit
    WHITE v. EDGERLY PETROLEUM COMPANY
    (December 22, 1925, Opinion and Decree)

      .(Syllabus by the Editor.)

    1. Louisiana Digest — Waters—Par. 10.
    An oil company which negligently permits salt water to flow from where it was operating an oil well into the drains, thus killing the rice on an adjoining plantation, is negligent and must pay the damages done to the owner of the rice field.
    (Civil Code, Art. 2315. Editor’s note.)
    2. Louisiana Digest — Appeal—Par. 626.
    The finding of the trial court as to the credibility of the witnesses, being clearly correct, is affirmed.
    Appeal from Calcasieu Parish. Hon. Thomas F. Porter, Judge.
    Suit by William S. White against Edgerly Petroleum Company.
    There was judgment for plaintiff and defendant appealed.

      Judgment affirmed.
    M. R. Stewart, of Lake Charles, attorney for plaintiff, appellee.
    McCoy & Moqs, of Lake Charles, attorneys for defendant, appellant.
   MOUTON, J.

In 1922 plaintiff planted a rice crop on a 42-acre tract of land adjoining Bayou Choupique in Calcasieu parish. He pumped water from the hayou to irrigate his rice field. Most of his rice died in the month of July, 1922. He claims that the loss of his crop, with the exception of 124 sacks, was caused hy salt water which defendant company negligently permitted to flow from where it was operating an oil well into drains which emptied into Bayou Choupique.

It is shown that the rice of the plaintiff was killed by the salt water which had been permitted to mingle with the fresh water of the bayou. This fact is well established by the evidence. About the 20th of July plaintiff found salt water on his rice, had it tested, and soon after stopped his pumps. There are three ditches by which salt water could have entered the bayou. Plaintiff made an investigation of these ditches to locate the source of the trouble. In two of the ditches there was no trace of salt water. In the other, however, the Robicheaux ditch, he found strong salt water with traces of oil. He walked along this ditch to where it connects with the oil field of defendant company. He says the ditch ceased to run at about a mile and a half from the • bayou, but the water in it was salty, and showed traces of oil. Caruthers, who is shown to have been a salt water inspector for several years, says tie saw salt water at the Choqpique Bayou bridge, about the 19th or 20th of Jiine, which was the time plaintiff discovered that his crop was being injured by salt water. He tasted the water in a ditch at that point and found it was very salty. He says the ditch “goes into the Robicheaux ditch”. He notified plaintiff of what he had found. Jasper Stine, manager of the Houston Canal Company, also testified in the case. He says the Robicheaux ditch had salt water in it frequently.

It is therefore well shown that plaintiff’s rice was killed by salt water; that the Robicheaux ditch, which was a connecting drain between Choupique Bayou and defendant’s oil field, had salt water in it with traces of oil at the time plaintiff’s crop was destroyed, and that the salt water could not have entered the bayou so as to affect plaintiff’s crop through any other ditch or channel. On the 25th of August, plaintiff found a bleeder on a reservoir in defendant’s oil ■field which was down, and from which salt water was pouring into a drain that connected with the Robicheaux ditch. The district judge said that plaintiff, after making a sincere effort to find and stop the source of the contamination of his water supply, found this “bleeder” on the earthen oil tank of the defendant “down” and salt water flowing from it into a ditch which led to Choupique Bayou. Plaintiff says he found salt water in this ditch not far from where it connects with Choupique Bayou. In this statement he is corroborated by the testimony of Caruthers, and Stine, the manager of the Houston Canal Company. These witnesses, as far as this record discloses, were disinterested, and we cannot see why it should not be accepted as a fact that the Robicheaux ditch had salt water in it at a long distance from where this “bleeder” was located. It also appears that there was no other channel from which this Salt water could have reached the bayou. •Speaking of the salt water that had contaminated the bayou water, and of the “bleeder” from which it flowed into the ditch, the district judge said: “Since no, other probable source of contamination ,is pointed out, fixes upon the defendant, with reasonable certainty, the responsibility for such contamination". As the record is barren of any proof showing any other source of contamination, we do not see how it is possible to reach a conclusion different from the one arrived at by the trial judge, notwithstanding all the facts and circumstances referred to by counsel for defendant in opposition thereto.

Counsel for defendant say that defendant became the victim of plaintiff’s quest for evidence which prompted him to turn the bleeder down to allow the wanton flow of the salt water from defendant’s separating tank. Such an inference as that cannot possibly account for the presence of salt water in the Robicheaux ditch, which was seen there first by Caruthers, who notified plaintiff thereof in July, long prior to the turning down of the bleeder, which had also been seen thereby Stine, the other witness. It is impossible to believe that plaintiff had engaged in such a performance for over a month prior to the 25th of August, when he reported to the sheriff and others that the salt water was pouring from the bleeder into a' drain that led through the Robicheaux ditch to Choupique Bayou. The evidence is clear that the salt water could not have gotten into the bayou from any other source than from the Robicheaux ditch, as- before stated. There is no proof that •it -could have entered into this ditch ex-,eept; through this bleeder. The lower .court, was therefore correct .in finding that this was the only source of contamination, no other having been pointed out. Under such a state of facts it cannot be said that the court has fallen into an error in not accepting the theory of plaintiff, to the effect that plaintiff had turned down this bleeder for the purpose of - manufacturing evidence and victimizing defendant company. The court below had reasonable grounds to believe plaintiff as a witness, and we cannot, as an appellate court, repudiate his testimony and conclude that he is unworthy of belief.

We find that the lower court 'has properly held defendant liable in damages, which counsel for plaintiff claims should be increased. The amount allowed is, under the evidence, grounded on a just and fair estimate. The increase 'asked for is refused.


text:
    No. -
    First Circuit
    WOOD v. K. C. SOUTHERN RAILROAD COMPANY
    (December 22, 1925, Opinion and Decree)

      (Syllabus by the Editor)
    1. Louisiana Digest — Appeal—Par. 19, 356.
    If the first appeal was not perfected by the filing of a bond, the trial court was not divested of jurisdiction .and, therefore, a second appeal granted by motion in open court at the same term and within a year of the rendition of the judgment was valid, even though ' there was no citation of .the defendant.
    2. Louisiana Digest — Appeal—Par. 325. •
    Appellants’ failure to furbish bond Under tíie first order of appeal is not' an : abandonment of the.' appeal? if .another appeal is perfected in time.

      3. Louisiana., Digest — Appeal—Par. 625.
    The finding of the trial court on the question of fact, namely, the lack of negligence of the defendant railroad company in a crossing accident, being cleany correct, is affirmed.
    Appeal from the Parish of Beauregard. Hon. Thomas F. Porter, Judge.
    Suit by Chas. D. Wood against K. C. Southern R. R. Company.
    There was judgment for defendant and plaintiff appealed but failed to file transcript in time.
    Another appeal was taken at the same term of court.
    Judgment affirmed.
    R. L. Stewart, of De Ridder, attorney for plaintiff, appellant.
    Pujo & Bell, of Lake Charles, attorneys for defendant, appellee.
   LECHE, J.

' Plaintiff’s auto truck was struck and demolished by a train of defendant company at a crossing, and, alleging that the collision was the result of defendant’s negligence, plaintiff sues for the value of his truck. From a judgment refusing his demand, plaintiff has taken the present appeal. Defendant moves to dismiss on the ground that plaintiff first appealed on January 19, 1925, and the return day having been fixed for February 15, 1925, he failed to file the transcript in time and that, therefore, said appeal was abandoned; that on March 11, 1925, he obtained another order of appeal which was then made returnable bn May 1, 1925; that the second order of appeal is null and void for want of service and citation upon defendant and for want of power and jurisdiction in the trial court.

It appears that the appeals thus taken by plaintiff were both merely devolutive; that having failed to furnish bond as required in the first order plaintiff applied for another order under which the proper bond was given, and the appeal is before this court by.virtue of the last, order.

The first appeal not having been perfected by the filing of a bond, the trial court was not thereby divested of jurisdiction over the case. The second appeal was granted by motion in open court at-the same term during which the judgment had been rendered and within a .year ■;of its rendition; there was, therefore, ,no necessity of citing the defendant and. appellee. The plaintiff’s failure to furnish bond under the first order was not an abandoment of the appeal.

See Hyman vs. Veith, 142 La. 933, 77 South. 854; Frankel vs. Morse Timber Co., 140 La. 448, 73 South. 263; Neely vs. T. & P. Ry., 145 La. 671, 82 South. 745.

We are, therefore, of the opinion that plaintiff’s appeal should be maintained, and it is ordered that defendant’s motion to dismiss be overruled.

The facts are substantially that plaintiff attempted to drive his automobile truck across the tracks of the defendant at a private crossing. He saw that the depression between the rails was rather deep, that there were no floor boards across the ties, between the rails, and in order to minimize the shock to his truck he slowed down so much that his motor, lacking : the power to propel the truck over the rails, suddenly stopped and, in automobile parlance, the engine died. While his truck was in the helpless position straddling the track, plaintiff saw a train approaching just beyond a near curve; he leaped off and attempted to flag the train but in vain. The truck was run into and corn; pletely demolished and wrecked by the locomotive.

Plaintiff charges defendant with negligence in not planking the ties between the rai.s and raising the roadway even with' the top of the rails, in not heeding his signals to stop its train before reaching the crossing, and he argues that defendant, having pleaded contributory negligence in its answer thereby admits its own negligence.

The crossing where the accident occurred is a private crossing, and we know of no law imposing upon railroads the duty of maintaining private crossings in a safe condition for vehicles. Whenever such an obligation exists it arises from a conventional agreement, and none has been shown in this case.

The testimony shows beyond doubt that when plaintiff attempted to signal the engineer to stop the train the distance was not sufficient to enable the engineer to bring his train to a full stop before reaching the crossing.

The allegation in Article 24 of defendant’s answer, in which it is said the defendant pleaded contributory negligence, simply denies that defendant was guilty of carelessness, recklessness or negligence, and charges that the collision was due entirely to the fault and want of care of plaintiff. We fail to see therein any plea of contributory negligence. There is,, however, such a plea, in the alternative, in Article 33 of the answer. That plea is hot an admission of the pleader’s own negligence. See Robertson vs. Town of Jennings, 128 La. 796, 55 South. 375.

It is admitted, and the evidence shows, that plaintiff was quite familiar with this crossing and its unsafe condition, for having frequently driven his truck over it just previous to the accident. But it matters little whether the plaintiff was negligent, imprudent dr iihfortunate in stalling his automobile truck across defendant’s track; the controlling condition of the case is that defendant is not shown to have been negligent or able to have avoided the collision.

We believe the judgment of the district court is correct and should be affirmed, and it is so ordered.


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    No. -
    First Circuit
    PERTITTA BROTHERS v. SHIELDS
    (December 22, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Attachment—Par. 76.
    The posting of a certified copy of a writ of attachment and citation on a billboard at a¡n entrance leading to the door of the courtroom, for instance the front door of the courthouse is a substantial compliance with Article 254 of the Code of Practice. It does not necessarily have to be posted on the door of the courtroom.
    Appeal from the Parish of Vernon. Hon. Hal A. Burgess, Judge.
    Suit by Pertitta Brothers against Belmont L. Shields.'
    There was judgment for plaintiff and defendant, absentee, through his curator ad hoc, appealed.
    Judgment affirmed.
    P. L. Ferguson, of Leesville, attorney for plaintiff, appellee.

      A. B. Cavanaugh, of Leesville, attorney for defendant, appellant.
   LECHE, J.

The present suit is against an absentee and the only, question therein presented to this court for decision is the defense made by the curator ad hoc, to the effect that “no copy of the writ of attachment herein sued out was affixed to the door of the room where the court in which this suit is pending is held, that no legal seizure was made”. Plaintiff, in order to recover a claim against the defendant, resorted to a writ of attachment under which the defendant’s property was seized and brought into the custody and jurisdiction of the court in order that it might be sold in satisfaction of the claim.

The sheriff’s return on the writ of attachment shows that service was made by “tacking certified copy hereof with petition on front door of courthouse”. His return on the citation shows service “by posting a certified copy hereof on courthouse door”. The handwriting in the return on the citation is not very legible, but we are satisfied that we have it properly deciphered.

On the trial of the ease the evidence shows that O. E. Morris gave the papers, including a copy of the writ of attachment, to Brown Cain, and .that Brown Cain posted the papers which Morris had given him by nailing them on the door. The record shows that the returns were signed by Brown Cain as deputy sheriff, and while the evidence does not show in what capacity Morris was acting, we presume that he was either clerk of court or sheriff, but that is not questioned. If Cain affixed all the papers handed to him by Morris and a copy of the writ was included in those papers, it follows that a copy of the writ of attachment was affixed as required by law and as stated in the return.

Article 254 of the Code of Práe'tibe requires that copies of the áttáchment be affixed to the door of the room where the court in which the suit is pending is held. In the case of Irving vs. Edrington, 41 La. Ann. 672, 6 South. 177, the court says:

“The courthouse is a two-story building with four public entrances. The returns on the writs show that .they were posted at the courthouse door, and, as it is not contradicted, it is presumed they were posted at the usual place where such notices are posted by the sheriff.”

Both from the return and the evidence the service in this case was made by affixing a copy of the writ of attachment and a copy of the citation to the courthouse door or the front door of the courthouse. The record does not show how many rooms are contained in the courthouse, nor how many doors there aré in the building, and for aught we know there may be blit one room and one door. There . are several decisions quoted in Louque’S Digest holding that a posting on the door of the courthouse is not valid and that such posting must be on the door of the room in which the court is held, but in the latest decision quoted in that Digest, Connell vs. Meddock, 25 La. Ann. 590, the court departed from, this highly technical and literal construction of Article 254 of the Code of Practice, and held that a. posting on a bulletin board at an entrance leading to the door of the courtroom was sufficient. So that, admitting there • are several rooms in the courthouse and that there are several entrances to the building, wé believe that the return of -service in this case is a substantial compliance with Article 254, C. P., as construed’ in the Irving and Connell cases. We Were not favored with oral argument or brief on behalf of the plaintiff, but our own examination of the law satisfies us that the. district judge properly maintained the regularity of the proceedings in the case, and his judgment is therefore affirmed.


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    No. ---
    First Circuit
    GOODNIGHT v. DR. WILLIS
    (December 22, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest—Automobiles—Par. 4 (a).
    One who drives to the left side of the road' in order to pass another automobile going in the same direction is negligent if he collides with another car approaching at a moderate rate of speed going in the opposite direction while so doing.
    (Civil Code, Art. 2315. Editor's note.)
    2. Louisiana Digest—Appeal—Par. 625.
    The finding of the trial court on a matter of fact, namely, the amount of damages sustained by the plaintiff, being clearly correct, is affirmed.
    Appeal from the parish of Vernon. Hon. Hal A. Burgess, Judge.
    Suit by M. P. Goodnight against Dr. D. o: wiiiis.
    There whs judgment for plaintiff and defendant- appealed.
    Judgment affirmed.
    S. I. Foster, of Leesville, attorney for plaintiff, appellee.-
    Hardin & Cavanaugh, of Leesville, attorneys for defendant, appellant.
   LECHE, J.

Defendant appeals from a judgment condemning him to pay damages in the sum of $162.73 with legal interest from judicial demand, resulting from an automobile collision.

Mrs. Goodnight, wife of plaintiff, was driving a Durant coupe belonging to her husband along one of the main thoroughfares in the town of Glenmora. She was traveling on her right-hand side of the road at a speed estimated fifteen miles an hour, when she met several automobiles going in an opposite direction and closely following one ahother, the last or rear automobile being under the control of and driven by Dr. D. O. Willis, the defendant. Dr. Willis, wishing to pass ahead of the automobiles in front of him, turned to the left, ran into and collided with the automobile of plaintiff, shoving the same into the ditch. and causing the damage which is the object of the demand in the present suit. Defendant was driving an Oldsmobile which is said to have weighed some 1200 pounds more than the Durant coupe, and while neither of the automobiles was being' driven at an excessive speed, the momentum from the greater weight of defendant’s automohile accounts for the side impulsion of and the damage done to' plaintiff’s coupe.

Immediately after the accident defendant stepped out of his automobile, came to Mrs. Goodnight and confessed that he was at fault, offering to pay for necessary repairs to her automobile. Plaintiff’s automobile was taken to a service garage and defendant, finding that the cost of repairs was far in excess of what he expected, refused to pay, and the present suit resulted from his refusal to carry out the offer which he had made to Mrs. ; Goodnight.

Defendant, as a witness in his own behalf, acknowledges that he offered to reimburse plaintiff, saying he would pay the bill “rather than have an argument about it”. He appears to be candid in his testimony and, while he attempts to excuse himself and to palliate his conduct, lack of care and prudence amounting in law to negligence is clearly deducible from his own recital of the occurrence. Defendant was not reckless and wanton, but, in the words of Judge Cooley, he is guilty of “the failure to observe, for the protection and interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury”.

The amount of the repair bill paid by plaintiff is $127.73 for parts and $60.25 for labor. The trial judge believed from the evidence and especially from the testimony of R. A. Copeland, an automobile mechanic, that the labor on plaintiff’s car, for repairs, was fairly worth only $35.00, and he accordingly deducted $25.25 from the bill. The judge also refused all other claims for damages, and as plaintiff neither appealed nor answered defendant’s appeal, these matters are concluded by the judgment.

The proof fully sustains the findings of the trial judge. The evidence shows that the repairs were made necessary by the collision, and there is no reason to presume that plaintiff’s car had already been damaged in previous collisions. The charges for parts were according to standard prices and the charge.,fox. labor, as allowed in the judgment, is .based, upon the testimony of defendant’s .own witness.

We believe the judgment appealed "from does full justice and should bri affirmed, and it is so ordered. *'


author: LECHE; J.

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    No. -
    First Circuit
    SHEHEE-JONES FURNITURE AND HARDWARE CO. v. E. G. POWELL
    (December 22, 1925. Opinion and Decree)

      (.Syllabus by the Editor;.)

    1. Louisiana Digest — Appeal—Par. 694.
    Where a counsel for appellant has made no appearance in this court, either" by brief or argument, arid no error is found in the judgment of the trial court to the detriment of the appellant, the judgment will be affirmed.
    Appeal from the Parish of Vernon. Hon. Hal A. Burgess, Judge.
    Suit by Shehee-Jones Furniture and Hardware Company against E. G. Powell.
    There was judgment for pla'intiff against defendants and intervenor.
    Defendant Dr. F. P. Jones alone appealed.
    Judgment affirmed.
    P. L. Ferguson, of Leesville, ■ attorney for plaintiff, appellee!
    S. I. Foster, of Leesville, attorney for defendant, .appellant. ■ ...
   LECHE; J.

Plaintiff sues E. G. Powell to recover two claims, one amounting to $247.98, and the other amounting to $600.00, both together aggregating $847.98. Plaintiff alleges that it has a vendor’s lien aii(i privilege on certain movables in the possession of Powell for the purchase price thereof, and it further alleges that it has a lien upon work which defendant had performed under a contract to build a highway, for advances which it made to said Powell in order to enable him to carry out his contract in constructing the highway. Plaintiff obtained a writ of sequestration to enforce its liens and privileges, and it also obtained a writ' of attachment under which it garnished funds in the hands of W. H. Smith, Jr., original holder of the highway contract, and of Dr. E. P. Jones, assignee of that part of the highway contract which had been sublet by Smith to .defendant. . The suit was filed September 17, 1924. The writs prayed for were issued and executed the same day.

On October 9, 1924, a written agreement was entered into between the plaintiff, the defendant and the two garnishees, whereby the sum of $1105.33 was deposited in court by Smith, on condition that such deposit shall relieve (release) the garnishment as against Smith and Jones and that the proceeding, insofar as any prayer for judgment against the said Smith and Jones, as garnishees, is thereby dismissed. The agreement is signed by counsel for plaintiff and by counsel for defendant and the two garnishees.

On October 14, 1924, J. W. Sanderson intervened, in these proceedings, claiming the sum of $649.40 for labor performed by him in the execution of the road contract. He- alleges that the sum of $1105.33 deposited in court by the garnishees represents the estimates paid to Smith for work done by intervenor as an employee of the defendant, Powell, in the building of said road. He further alleges a lien and privilege on said fund and prays that his claim be paid out of the same, together with 10 per cent attorney’s fees by privilege and preference.

The district court rendered judgment recognizing the claims of plaintiff, recognizing the sum of $1105.33 as belonging to Dr. E. P. Jones, subject, however, to the payment of intervenor Sanderson’s claim in the sum of $649.40, with the ten per cent attorney’s fees, and also subject to the payment of the claim of $247.98 sued on by 'plaintiff, " all costs of suit to be paid by Powell and Jones.

Prom that judgment Dr. P. P. Jones alone has appealed and no answer to the appeal or prayer for amendment has been filed by any of the appellees. The appeal is thus limited to the question as to whether said judgment should be changed, altered or amended to the advantage of Dr. Jones. But counsel for appellant has made no appearance in this court, either by brief or by oral argument, and we fail to find any error and none is pointed out to us in the judgment detrimental to appellant.

The judgment of the district court recognizes the privileges claimed in favor of plaintiff and in favor of intervenor on the fund of $1105.33 deposited in court, and this finding seems to be amply supported by the law and the evidence. After satisfying these privileges, there may remain a balance which is recognized in the judgment as belonging to. appellant. We can't say how much that balance, if any, will amount to, as we have not calculated the interest and we do not know the amount of co.urt costs. Plaintiff earnestly contends in argument that it is entitled to that balance as a result of the agreement signed by the appellant on October 9, 1924. But plaintiff has neither appealed nor answered the appeal of Dr. Jones, and the judgment cannot be amended in its favor.

We see no other alternative but that the judgment of the district court should be affirmed, and it is so ordered.


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    No. -
    First Circuit
    MOORE v. HEBERT
    (December 22, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 729, 747.
    Where the shorthand notes of the evidence have been stolen due to no fault of the appellant, the case will be remanded to the lower court for a trial de novo.
    Appeal from the Fourteenth Judicial District Court, Parish of Calcasieu. Hon. Thomas F. Porter, Judge.
    Suit by Jules Moore and wife against Felix Hebert.
    There was judgment for plaintiff and defendant appealed.
    Case remanded for trial de novo.
    E. F. Gayle, of Lake Charles, attorney for plaintiff, appellee.
    Cline & Plauche, of Lake Charles, attorneys for defendant, appellant.
   ELLIOTT, J.

The note of evidence pn which the judgment in this case was founded is not in the record. We. cannot review the case without the evidence.

The amount claimed in the petition, after certain items had been stricken out by the district court, is $2250.00.

The plaintiff and appellee moves to dismiss the appeal, because we have no jurisdiction, due to the amount claimed.

In another motion plaintiff and appellee moves to dismiss the appeal because the record is not complete, due to the fact that the evidence, on which the judgment appealed from is based, is not in the record. In another motion plaintiff and appellee answerá the appeal and prays that the amount allowed them be increased.

The defendant and appellant contends that the appeal was properly brought to this court, and informs us, in a motion and declaration under the oath of his attorneys, that after the appeal had been granted, bond filed, appeal perfected and lodged in this court, that he discovered that the testimony was not in the record; and learned that the shorthand notes of the evidence, on which the judgment appealed from was based, had been stolen from the stenographer before they were transcribed.. That, as a result, the evidence taken on the trial cannot be produced. That same cannot be reproduced. That it occurred without his fault and is in no way due to any neglect on the part of defendant and appellant.

He moves that the judgment appealed from be annulled, avoided and set aside for the reason stated in his motion, and that the case be remanded to the lower court for a trial de novo.

After considering these motions, and the absence of the evidence, we conclude 'that' the judgment appealed from will have to be annulled and set aside, and the case remanded for a trial de novo, as ' prayed for by defendant and appellant. Barton vs. Burbank, 119 La. 224, 43 South. 1014.

If the case is returned to us, after we have read the evidence, we will be better able to act on the question of jurisdiction due to the amount claimed by the plaintiff.

Action on the motion of plaintiff and appellant" to dismiss the appeal for . want of jurisdiction because of the amount claimed is, therefore reserved until the case is returned to this court, with the evidence on' which the judgment appealed from is based.

We suggest, as a precautionary measure, that three notes of evidence be made, as required for appeal to the Supreme Court, to serve for that purpose in the event we conclude that the appeal should go to the Supreme Court.

For these reasons the judgment appealed from is annulled, avoided and set aside, and the case is remanded to the lower court for a trial de novo.

That all cost abide the result on the final appeal, unless payment is sooner required in the lower court, as the law provides in such cases.