text:
    No. 12,900.
    State ex rel Annie Williams vs. Hon. F. A. Monroe, Judge, etc.
    Syllabus.
    1st. Orders appointing receivers that arrest the execution creditor and take from the sheriff the property seized to satisfy the creditor’s debt, are appealable. C. P. Art. 566; 16th Ann. 83 ; 46th Ann. 1107; In re Moss Cigar Co., 50th Ann. N. R.
    2nd. Where the appeal applied for from such an order to the Court of Appeals is refused by the District Court, this court, in a proper case in the exercise of its supervisory jurisdiction, will stay proceedings in the District Court until the judges of the Court of Appeals, absent from the State when the application is made to this court, can act on the demand for the mandamus to compel the allowance of the appeal. Const. Art. 94.
    QN APPLICATION for a writ of mandamus.

      Dinkelspiel & Dart for Relatrix.

      Benjamin Bice Forman for Respondent Judges, F, A. Monroe and N. H. Rightor.
    Submitted on briefs November 7, 1898.
    Opinion handed down December 5, 1898.
    Rehearing refused January 23, 1899.
   The opinion of the court was delivered by

Miller, J.

The Relatrix, a judgment creditor of a corporation, seized its property under execution. Subsequently the lower court, on an ex parte application of an alleged stockholder of the corporation, made the appointment of a “provisional receiver” for the corporation. The seizing' creditor thus arrested in the execution of his judgment, applied for a suspensive appeal from the order appointing' the receiver, which was refused on the ground the order was not calculated to work irreparable injury, and, hence, was not appealable. The relatrix applied for the axjpeal to the Court of Appeals; the judges of that court, it was shown, were not in the State when the ax^ea! was refused, and in that con'dition the application was made to one of the justices of this court, during our recess, for a writ of mandamus, to cornxicl the allowance of the apx>eal. As the relatrix had sought an axixJeal to the ‘Court of Appeals, to that court should the application have been made for the mandamus, and our order directed the proceedings to be stayed until the Court, of Appeals, the judges of which court being then absent, acted on the apxfiication.

The petitibn for the writ showed that the Relatrix, with xu'operty of the coipioration seized under her judgment for one hundred and fifty-five dollars, ax:>x>lied for the order of axipeal from an order that putting the property of the corporation in the hands of a receiver arrested relatrix in the execution of her judgment, and took from the sheriff the property she had seized under her execution. Such orders under our jurisprudence are appealable. C. P. Art. 566; Martin vs. Blanchin, 16th Ann. 83; State ex rel Brewing Co. vs. Judge, 46th Ann. 101; State ex rel Gaiser vs. Judge, 46th Ann. 112; In re Moss Cigar Co. 50th Ann. not yet reported. Under our supervisory power it is competent for us to stay x>roceedings in the District Court under an order which is appealable, until the action of the Court of Appeals ■can lie had, when the litigant applies for the appeal to the Court of Appeals, which the District Court refuses to grant. On the allegation in rclatrix’s petition, we deemed it a proper case for this order staying proceedings. Constitution, Art. 04. We are informed by the returns to our preliminary order that the Relatrix has made the application to the Court of Apipoals for the mandamus, and in these returns we find other questions raised as to the jurisdiction of that court. These questions, we think, must be xiassed on by that court and not by this court, in the present phase of the controversy.

It is therefore ordered and adjudged that our preliminary order be maintained in so far as it stays proceeding's until the action of the Court of Appeals on rclatrix’s apxffication for a mandamus.


source: Caselaw Access Project

author: MIller. J.

license: Public Domain

text:
    No. 12,907.
    The State of Louisiana vs. James C. Harper.
    -(1.) The general rule that the incompetency oí the juror arising from preadjudication of the case or other cause, is not available to set aside the verdict, is subject to the tpialification that the juror's incompetency is discovered after the trial, and that he was interrogated as to his competency of the voh- dire examination and.answered falsely. Thompson & Meriam on Juries, ¡3. 302; 43rd Ann. 3G3 ; 43th Ann. p. 1181.
    .(2.) The court again affirms its jurisdiction to review the rulings of the trial judge, on application lor new .trial, when the testimony on which such rulings are based, is made part of the bii 1. Gth Robinson, p. D2Í); 32nd Ann. p. 844; 41st Ann. 143.
    ON APPEAL from the Twenty-First Judieial District Court for the Parish of St. John the Baptist. Rost, J.

      M. J. Cunningham, Attorney General and Robert J. Perkins, District Attorney, (II. N. Gautier, of counsel), for the Plaintiff and Appellee.

      James 1). Seguin, Gauclei & Edrington and R. N. Sims for Defendant and Appellant.
    Argued and submitted December 10, 1898.
    Opinion handed down December 19, 1898.
    Rehearing refused January 23, 1899.
   The opinion of the court was delivered by

MIller. J.

The accused, indicted for murder, prosecutes this ap-' peal from the sentence of death.

The Questions submitted to us arise on the bill of exceptions re1 served to the refusal of the new trial, applied for on behalf of the accused. The prominent ground assigned for the new trial is: that one of the jurors was incompetent to serve, because he had formed and. avowed his opinion of the guilt of the accused; had besides expressed his purpose to get on the jury to convict the accused, and that notwithstanding this opinion of the defendant’s guilt, the juror, on the voir dire examination, had answered in the negative to the questions, whether he had formed or expressed any opinion as to the guilt of the' prisoner. The rule for the new trial particularizes the occasions of the expressions of the juror by giving the dates, places and persons to whom the expressions were addressed, or who heard the juror. On the trial of the rule, the testimony was taken of the parties named in the bill as well as others offered by the State as well as on behalf of the accused. The bill of exceptions to the refusal of the new trial makes part of the bill the rule for the new trial sworn to by the accused and all the testimony produced in support of the rule.

The contention of the State that the incompetency of one of the jurors who tried the accused, cannot be urged after the verdict to set it aside, is well founded, with this qualification; that the disqualification of the juror was not known to the accused, when the juror was-presented, and could not then have been ascertained by due diligence. The diligence exacted is, that the accused should have examined the juror on his voir dire, the time and mode for testing the juror’s competency, and that the juror should have answered falsely as to his competency. The qualification is quite as well settled as the rule itself invoked by the State. Thompson & Meriam on Juries, S. 302; State vs. Garig 43rd Ann. 365; State vs. Nash, 45th Ann. 974; State vs. Button, 50th Ann. not yet reported. Were it otherwise, there would be no relief for the accused deceived by the false anwsers of the juror on his voir dire examination, and the accused would suffer the penalty for crime of which he had never been convicted by a jury constituted' in accordance with the constitution and laws. The further contention of the State, that when the accused seeks to set aside the verdict for the incompetency of the juror developed after the trial, the burden is on the accused to show the juror was examined on his voir ‘dire, and gave false answers. It is distinctly stated in the rule made part of the bill, and signed by the judge without qualification, that the juror was-questioned whether he had formed or expressed any opinion as to the guilt of the accused, answered in the negative, avowing his freedom. from bias or prejudice, and his competency to try the accused according to the testimony and the law. We must accept as conclusive, the signature of the trial judge to the bill as certifying to this court this voir dire examination and the answers of the juror to his competency, incidents of a trial, occurring' under the eye of the trial judge, and explicitly stated in the rule, part of the bill signed by the trial judge.

Although a rule for a new trial is the appropriate remedy, when the conviction has been procured from an illegal jury, i. e. not constituted as required by the Constitution, securing to the accused the “historical .jury” of twelve impartial men, and although the accused has brought himself within the rule of diligence that he must have examined the juror whose competency is now sought to be impeached, on his voir dire, and that the juror answered he was competent, still, it is contended, this court cannot review the testimony the accused claims exists, the incompetency of the juror and the falsity of his answers on the voir dire examination that he bad formed no opinion of the guilt of the accused. If this contention is sustained there is then no relief to be had in this court, when the accused claims the jury that convicted him was composed in violation of his Constitutional right to an impartial jury. According to the argument addressed to us the -decision of the trial judge is final. The general rule is invoked of the weight due to the decision of the lower court on application for new trials in criminal cases, and in the brief of the State we have a copious citation of authority from the other States as well as our own, in sup■port of that asserted to be the discretion of the trial judge, not subject to revision in this court. Our courts, however, have carefully dis■criminated decisions of the trial judge on applications for new trial refused by the trial judge with no basis exhibited to this court on which the trial judge acted, from cases like the present, when the facts on which the trial judge refused the new trial are brought up by the bill of exceptions. The question arising on the facts thus spread before this court in the record, cannot be dismissed by us as one resting in the discretion of the trial judge, but is one of law, or, at least,, as it is sometimes expressed, of law blended with fact, so as to make it ■a legal question within the jurisdiction of this court to review, under the grant to this court of appellate jurisdiction in criminal cases on questions of law. Constitutions of 1879, Art. 81; and Art. 85 of 1898. Here the accused insists he has been deprived of his Constitutional rights of a jury trial without which there can be no conviction of the offence for which, he was indicted. The facts on which this deprivation of right is predicated are certified to us by the trial judge. We are not at liberty to decline the determination of the question thus arising. It is a question of law on the state of facts exhibited by the record. At an early period the jurisdiction of this court was affirmed and is now to be deemed settled to review the rulings of the lower court in criminal cases on applications for new trial when the bill of exceptions exhibited the facts on which the ruling- was based. State vs. Charlot, 8th Rob. 529; State vs. Nelson, 32nd Ann. 844; State vs. Trivas, 32nd Ann. 1086; State vs. Seiley, 41st Ann. 143; State vs. Nash, 45th Ann. 1148. It is our conclusion, therefore, that the bill of exceptions submits to us, whether, under the facts brought up by the bill, the juror whose competency is called in question was qualified to-try the accused, and whether the disqualification of the juror, if it existed when he was called to take his-place on the panel, was not masked by the answers he then gave that he had not preadjudieated the case. Under the mandate of the Constitution, we have, therefore,, examined the testimony before us deeply impressd with the importance of maintaining- convictions for crime against applications of the character of that before us, often expedients without basis and availed of as the last resort to escape punishment, and, on the other hand, we-have been equally sensible of the protection to which the accused is entitled. If the testimony adduced in support of his appeal is convincing- there has been no trial or conviction required by the laws and the Constitution to support the sentence that consigns him to the scaffold.

One of the witnesses on the rule for the new trial testifies in the-most emphatic terms, that on the day the case was tried before the jury was empanelled, the juror stated, in effect, he did not think he-would be accepted, for the counsel for the accused knew the opinion then avowed by the juror, “I am for conviction.” To this testimony is opposed the denial of the juror called as a witness; and there is also-the testimony of two others that they did not hear any statement though present in the skiff crossing- the river, when the statement is imputed to the juror. There is testimony that on another occasion, about a week before the trial, the, juror stated he thought both the accused and the other indicted with him, guilty, that witnesses bad' for both would be produced; in the course of the cross-examination, extremely searching, 1he juror was questioned wiili persistency whether the juror had not qualified his expression by if the proof was at hand claimed to exist, but- the witness, with equal persistency, adhered to his statement that the juror had not accompanied the expression of his opinion of guilt with any qualification; again there is the denial of the juror and the testimony of another who was present, that the juror’s expression was the opinion qualified by “if the matter was as the public had it,” but on the cross examination this witness stated he could not recollect the exact words of the juror, though he, the witness, could give, in his words, the expression of the juror, dud in the further cross examination, the witness stated, in effect, he rer membered part only what was said on the occasion. We have, therefore, the positive testimony of a conversation in which there is attributed to the juror, the strongest expression of opinion of the guilt of the accused. The contrast of the persuasive force of this positive testimony is marked, we think, as opposed to that of the State’s witness, who stating he cannot give the juror’s exact words, adds further that he does not remember all that was said. Then, too, along with the juror’s denial of the expression of opinion, we have his answers on cross examination that impress us as detracting from that denial. Even the qualification of opinion the State’s witness attributes to the juror he himself does not recollect, and responding to the question: “Did you not say soemthing about the guilt of ITarper and Grover?” the juror stated: “Not that I remember; don’t think I did.” The testimony, in reference to the juror’s expression on this occasion, has left on our minds the natural impression produced by positive testimony of what was said, when weighed with that of a witness questioned in reference to his own statements, the subject of the positive testimony, answers to the general effect he does not remember. Then there is the testimony of the juror’s expression on another occasion, of opinion of the guilt of the accused, and the testifying witness imputes to the juror a disqualification more serious than that of preadjudication. In the clearest language the witness gives, the statement from the juror he would try to serve on the jury, if accepted would send both to the pen, and on the same line we have the repetition testified to by the witness that the juror stated, if asked whether •he had formed an opinion, he would say “no.” From another witness present we have the statement the juror qualified his statement by, “if the case is as the public has it, both were guilty and should be hanged,” but the other words attributed to the juror find no eontradic.tion unless it lias escaped our attention. The juror’s testimony disclaiming with emphasis, that he desired to serve, that he did not express any such desire; does not remember between whom the conversation arose, that he did not advance the question, and someone else was speaking about the case, does not strike us as marked by that positiveness of the defence witness, that on that occasion the juror said, if accepted “he would send both to the pen,” a peculiarity of expression which, if not used, it seems to us would have elicited añore than the deaiial of the expression of opinion as we find it in the record. Finally, we have the testimony, that on still another occasion, on the suggestioai his name was oai the jury list, the juror stated he did not believe he would serve, his opinioai was formed, was known to the counsel for the accused, that if asked if he had formed an opinion, would say no, .and if he served would hang both. The testimony as to what the juror said in this last conversation is in unambiguous, positive terms, neither varied or weakeaied, in our opinion, by the cross examinatioai. There is some negative testimony to the contrary produced by the State, but not of a character to impress us against the positive testimony of the defence’s witness. Nor can we fail to appreciate that the testimony for the accused derives greater force from the testimony of the juror himself to the effect he remeanbers no such conversation and he repeats “aaot a word of it.” The effect that the law and reasoai give to testimony so strongly contrasted is too obvious to aieed commeait. The text books aamounee the reasons, and all authority eoaicurs iai giving persuasive control to the affirmative testimony. Starkie on Evidence, S. p. 828.

It is true the juror testifies he had formed aio opinioai, could try the •case impartially oai the law and testimony, and the State addresses to us the argument that opinions not fixed of the accuseds guilt, do not .disqualify the juror. We cannot suppose that if the testimony of the ■condition of the juror’s mind had been put before the trial judge that rthe juror would have gone oai the panel. However, we cannot determine his fitness as a juror by his answers given after verdict when his competency has been questioned to pass sentence on the accused, and in solving that issue gives greater weight to such answers, weighed with the testimony of his declarations before the trial, testified to by four witnesses to as many occasions, to the general effect his mind was .made up for conviction, and, if accepted, he would hang both.

We cannot resist the force of the testimony of four different witnesses to expressions of the juror on separate occasions of his conviction of the guilt of the accused, two of these witnesses testifying to other expressions of the juror denoting the condition of his mind unfitting him for service on the jury. Least of all, can we perceive that the positive testimony of the defence’s witnesses is weakened by sucli denials from the juror as we find in the record. Starkie S. p. 828.

With the most patient examination of the testimony, it is our conclusion that the juror was not qualified to serve on the jury that convicted the accused, and for this cause the sentence must be set aside and a new trial awarded.

It is, therefore, ordered, adjudged and decreed that the sentence of the lower court be reversd and set aside and a new trial granted the accused, that to that end the cause be remanded and that he be held in custody to stand said new trial according to law on the indictment preferred against him.

Nicuolls, C. L, absent.


author: Millkr, J.

text:
    No. 12,941.
    The State of Louisiana vs. Theodule Ardoin.
    Syllabus.
    ■ (1.) Tile Article 116 of the Constitution of 1898, substituting the concurrence of nine of the jury for the unanimity of the jury of twelve, required prior to the adoption of our Constitution to convict for crime, is ex post facto legislation in so far as it applies to offences committed prior to the Constitution of 1898, and in conflict with the provisions in the Constitution of the United States securing the trial by jury to all prosecuted for crime, and prohibiting ex post facto legislation by the States. Constitution U. S., Art. 1st, S. 10 : 170 U. S. 343.
    >(2.) "Stare decisis" based on the decisions of this court of the question federal in its nature presented in this case, must yield to the determination of such a question by the United States Supreme Court vested with the power by the writ of error to compel conformance of the decisions of this court, with the jurisprudence settled by the higher tribunal. Constitution U. S., Art. 3rd Rev. Statutes, S. 709.
    ON APPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Dupre, J.

      ill. J. Ounningham, Attorney General, and B. Lee Garland, District Attorney, (i?. P. Veazie, of counsel) for Plaintiff and Appellee.

      E. B. Dubuisson and John N. Ogden for Defendant and Appellant.
    Argued and submitted January 34, 1899.
    Opinion handed down January 23, 1899.
   The opinion of the court was delivered by

Millkr, J.

The accused, convicted of burning a vacant dwelling, punishable with imprisonment at hard labor, takes this appeal from the sentence.

lie assigns as error patent- on the record, that the offence of which he was convicted, was committed prior to the adoption of the present Constitution, authorizing1 convictions on the concurrence of nine of the jury, that the constitutional provision in this respect as applied to offences before the Constitution was adopted, is ex post facto legislation, and hence the sentence based on the verdict concurred in by nine only of the jury that tried him cannot stand. The argument is that when the offence was committed there could be no conviction without the concurrence of the jury of twelve, and that the Constitution of the State in dispensing with that unanimity, substituting1 the concurrence of nine only of the jury, violates the article of the Constitution of the United States prohibiting ex post facto legislation by the State. If the change made by the Constitution in respect to convictions for crime, is to be deemed ex post facto in character when sought to be applied to the trial for offences committed prior to the adoption of the Constitution of the State, it is manifest the assignment must prevail. Revised Statutes, Ss. 843, 976; Constitution of’ the State, Article 116; Constitution of the United States, Article 3, S. 9, section 3.

The definitions of the ex post facto law, as it is often found in the text books and decisions, that it is legislation constituting that a crime not an offence when the act was done; or that increases the punishment beyond that affixed to the act when committed; or that changes ■ the rule of evidence by requiring a less degree of proof to acquit than necessary by the law when the offence occurred, do not exclude other" illustrations of ex post facto laws. Cooley’s Constitutional Limitations, IXtli Chapter, p. 38. In the recent exposition of the ex post facto law by the Supreme Court of the United States the question was whether a conviction for crime obtained in Utah based on the verdict of eight jurors, that being- the number provided by the Constitution of that State, could be sustained in view of the fact that the offence was committed before the adoption of the Constitution and while Utah was a"territory. In defining the ex post facto law the court thus expressed itself: “The crime when committed was punishable by the territory of Utah, proceeding in all its legislation in subordination to the authority of the United States. The court below substituted as the basis of its sentence the verdict of eight jurors in place of the unanimous verdict of twelve required to convict when the of-fence was committed. It cannot, therefore, be said that the Constitution of Utah did not deprive the accused of a substantial right, and did not materially alter the situation of the accused to his disadvantage.” In another part of the opinion the court gives the approved definition of the ex post facto law thus: “Any statute which in its relation to the offence or its consequences, alters the situation of the accused to his disadvantage,” and the court held that the provision under discussion in the Constitution of Utah was repugnant to the-prohibition of ex post facto legislation. Thompson vs. Utah, 170 U. S. p. 343.

The change made by the Constitution of Utah was the provision of’ a j ury of eight, in courts of general jurisdiction except in capital cases, but required unanimity of the jury in rendering their verdict. Our Constitution, in so far as it bears on this controversy, provides for a jury of twelve in prosecutions for offences necessarily punishable with imprisonment at hard labor, but authorizes the verdict by nine concurring- jurors. In the Utah case the verdict was found by the eight composing- the jury. In this case the verdict found is by eleven jurors. In each case the conviction is by less than what the Supreme-Court of the United States terms the “historical” Constitutional jury of twelve.

The distinction between legislative changes from time to time in methods of proceedure and ex post facto laws, is distinctly recognized’ in text books and decisions. Cooley’s Constitutional Limitations, p. 264, Ch. 9th. On our first examination of this question we reached the conclusion that, our recent Constitution, introducing the concurrenee of nine jurors, to convict, instead of the unanimous jury, kept within the limits of legislative control over legal procedure. State ex rel Sherburne vs. Judge, 50th Ann., not yet reported; State vs. Caldwell, 50th Ann. 670. Our predecessors held a like view in State vs. Carter, 33rd, Ann. p. 1214. When our decisions were made we were not aware of the recent decision of the Supreme Court of the United States.

We have had an elaborate argument on behalf of the State to maintain our own decisions, and in that connection it is urged that on the question presented, the decisions of the Supreme Court of the United States are not binding on this court. We should certainly follow our own decisions, if that of the Supreme Court of the United States did not, in our view, exert controlling influence. The argument supposes a distinction between the question in this case and that determined in the Utah case. In that case the offence was committed when Utah was a territory, and the trial occurred after the territory became a State. The decision maintained that the provisions of the Constitution of the United States guaranteeing the trial by jury, applied to prosecutions for crime in the territories as well as in the states, and held that the trial thus secured was by the “historical” jury of twelve. The Constitution of Utah, under which the accused was tried, in authorizing the conviction by a jury of eight, in the view of the court, deprived the accused of a substantial right, and hence was ex post facto legislation prohibited by the Constitution. Article 3rd S. 3, 6th Amendment; Thompson vs. Utah, 70 U. S. pp. 344-350. The same course of reasoning applies with equal, if not greater force in this case, in which both the offence and the trial occur in the State of Louisiana, subordinated in all its legislation to the provisions of Constitution of the United States, guaranteeing the right of trial by jury construed in Thompson vs. Utah, 170th U. S. 344, and it may be added, sub■ordinated to that other limitation on the legislative power, both State and Federal, that no State shall pass any ex post facto law. Articles 1st, 9th and 10th. It is the conclusion of the United States Supreme Court that the substitution of the jury of eight for the jury of twelve is ex post facto, and we cannot maintain the view of our own in this respect, different from the deliberate judgment of the highest tribunal with the jurisdiction to review and reverse the decision of this court denying to the accused the right in the view of that tribunal, secured to him by the Constitution of the United States. Any weight we might attach to stare decisis would, avail nothing in a case presenting to the Supreme Court of the United States the denial of a right of the nature under discussion. That court would feel itself bound to enforce the protection of the federal Constitution, and the decision in the Utah case gives us the interpretation of that tribunal. Revised. Statutes of the United States, S. 709. The argument supposes, too,, that the provision in the Utah Constitution construed in 170th U. S.,. differs from that of our Constitution under discussion. The difference is supposed to be in the fact that under the Constitution of Utah a jury of eight only was provided, while our Constitution provides for the jury of twelve, but authorizes the verdict by the concurrence of nine. It is claimed this gives the accused the chance of an acquittal by nine. This chance of acquittal under the exposition of the Supreme Court oí the United States, cannot be deemed to answer the requirement there can be no conviction at all, unless by the verdict of twelve, the only jury recognized in determining the question in this case. All the other aspects discussed in the trial and argument for the State had our attention. We think the decision of the Supreme Court of the United States makes it imperative to hold that Article 116 of the Constitution cannot be applied to offences committed prior to the adoption of that instrument.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be reversed and set aside and the accused held for another trial according to the laws in force when the offence is charged to have been committed and to abide the result of that trial.


author: MiUjHr, J. Blanchard, J.

text:
    No. 12,825.
    Succession of Mrs. Mary A. McDermott. In the Matter of Mrs. Mary Cronan Rebler, et als., vs. Lawrence Cronan, Executor, et als. On Proceedings to Annul Will.
    Syllabus.
    (1.) The action of the heirs to set aside the sale by the executor, if the grounds exist, is not suspended because of the will of the deceased, the heirs attack as void.
    (2.) The judicial sale is within the principle that avoids auction sales, for fraudulent (.ombinations to prevent bidding or other fraudulent practices ot the executor or administrator and the purchaser, but consistently with, tlie protection the law gives the dona fldo purchaser at the sale made by the competent court for the payment of the succession debts, the allegations directed against the title of the adjudicatee should be distinct of the fraudulent practices claimed to annul the sale.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Righior, J.

      Pierson, Montgomery & Pierson for Plaintiffs, Appellants.

      Felix J. Dreyfous for E. Rith, Defendant, Apj)ollee.
    Argued and submitted November 551, 1898.
    Opinion handed down December 19, 1898.
    Judgment amended and Rehearing refused January 23, 1899.
   'The opinion of the court was delivered by

MiUjHr, J.

This appeal is by plaintiffs from the judgment of the lower court, sustaining the exceptions of the defendants, and dismissing the suit.

The suit is by the sole heir of Cronan, directed against liis executor, and the purchaser of the property of the succession at a sale made under the order of the court; the petition, in effect, avers that the indebtedness of the succession was small; that the heirs wore making .arrangements to pay it; that the sale was at a period of the prevalence of fever in this city and of quarantine regulations; that the sale was precipitate, without petitioner's knowledge, and purposely for concealment from petitioners, and 1o defeat their rights, 1hat the executor ■avoided interviews with petitioners, sought by them to obtain possession of the property; that at the sale the purchaser made repeated bids, as petitioners believe, to make it appear there was competitive bidding; that when petitioners, on the day of the sale, reached the place where the property was being offered, they were informed by the executor they could not bid; it is finally averred that at the offering of the property, a short time previous to the sale, a bid of thirty-nine [hundred dollars was refused, and the subsequent adjudication to the purchaser, one' of the defendants herein, it is .charged, was accomplished by collusion between him and the executor. The pietition also attacked the will of the deceased in nuncupative form by public act, on the grounds that it was not dictated by the testator to the notary, or read by the notary to the testator, or received in the presence of the witnesses required by law, and that, in other respects, the will was invalid and the probate void. The prayer of the petition is that the will be annulled, the probate set aside, that- petitioners be recognized ,as sole heirs or the deceased, that the sale to the defendant, the purchaser, at the succession sale, be set aside, and plaintiffs be adjudged •owners, and put in the possession of the property.

The appeal is before us on the defendants’ exception, sustained by the judgment of the lower court, of prematurity and of no cause of action; that plaintiffs have made no tender of the price paid by the purchaser and that the sale cannot be attacked collaterally.

The exception of. prematurity is not, we presume, directed against the action, in so far as it seeks to set aside the will, but it is contended, if we correctly appreciate the argument that the sale to one of the defendants cannot be attacked until the will is -annulled. We do not understand that the right of the legal heir to the property of the deceased is suspended by a void will of the deceased. The principle of the code is, that the legal heir succeeds to the property of the deceased by the fact of the death: Le mart natsit le vif. Civil Code, Articles 872, 873, 940, 941; Womack vs. Womack, 2nd Ann. 339; Addison vs. New Orleans Savings Bank, 15th Ann. 527; 2nd Hennen’s Digest, p. 1461, No. 7. It results, we think, that the right of action of these plaintiffs, as legal heirs, to have set aside a salé of the succession proXierty, they claim to be illegal, was not suspended by the will of the deceased, we must assume for the purposes' of the excoxition to be void. The exception that the judicial sale cannot be collaterally attacked asserts a correct principle, but, in our opinion, this suit is a direct attack. True, the x^ctition bears the number of the succession, but, nevertheless, the question presented is raised, not incidentally, in a suit brought for some other purpose, but this suit is brought to annul the sale, and by petition in the form prescribed by the Code for the -ordinary action. C. P. Arts. 170 et seq.; Brosnaham vs. Turner, 16th La. 433; Derbigny vs. Peirce, 138th La. 551. Nor do we think the exception, that plaintiffs have not tendered to the purchaser the xirice the exccx>tion assumes to have been paid, entitled to more favorable consideration. The payment of the price, if there has been any payment, would be a matter of defence on the merits. The exception of no cause of action directs attention to the allegations in the petition designed to show a oasis to annul the sale. In this connection, the argument for the defendant invokes the protection the law affords the purchaser at the judicial sale. See the line of cases collected in 2nd Hennens’s Digest, p. 1494, No. 5. It is quite true that this general rule does not place judicial sales beyond that redress due to the injured parties, when the sale is the result of fraudulent practices of the purchaser or representative of the succession, but when that redress is sought there should be the distinct specification of the frauds that taint the judicial sale with nullity. The alleged precipitancy of the sale; that the heirs were not apprised of the day of the sale by the executor, and that the heirs were arranging to pay the succession debt, small in amount, cannot'be deemed to furnish any ground to set asido the adjudication ordered by the competent court and preceded by advertisements, deemed by the law adequate notice to all interested. That the heirs were told they could not bid, a right secured to them by law, and of which they are presumed to know, would he but a slender basis to disturb a judicial sale, least of all, when it is not averred they were prepared to bid and were deterred by the alleged statement of the executor. The petition contains no allegation there was any combination to prevent bidding unless we can infer it from the averment that the purchaser prompted bids to give the appearance of competitive bidding, an averment that does not carry the significance of the exclusion of any disposed to bid. The order of the court required the adjudication to the highest bidder and the previous bid of three thousand nine hundred dollars, alleged in the petition, would not annul the adjudication for seventeen hundred and fifty dollars, if bidding was open to all, and no more was bid. We find in the petition no allegation of the value of the property, and that it was sacrificed, unless we can deem this value and sacrifice implied by the averment of a higher offer not renewed when the sale took place. All these allegations are followed by the averment of collusion between the executor and the purchaser, but interpreted by the allegations on which the collusion seems to be based, the averment adds but little, if any strength to the case made by the petition. We reach the conclusion that the allegations of the petition do not exhibit the fraudulent acts of the. adjudicatee and purchaser; the value of the property and its sacrifice, and other causes, if any, of that sacrifice, imputable to these-parties, pertinent to this controversy and requisite to the relief sought in respect to the sale. In maintaining the exceptions on this branch of the ease, we will reserve, though hardly necessary, the plaintiff’s-right to amend their pleadings.

The plaintiffs’ suit to annul the will based on the non-observance of the legal.requisites of the nuncupative will by public act is properly directed against the executor by the sole heirs of the deceased and exhibits a cause of action. If the grounds exist to avoid the sale the purchaser may be joined as defendant. The exceptions directed against the suit to annul the will should, in our opinion, have been overruled.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and it is now ordered and decreed that the exception of no cause of action to the suit against the adjudicatee be maintained with leave to plaintiffs to amend their pleadings, the other exceptions be and they are hereby overruled, the cause remanded for trial and that defendants pay costs.

Mr. Justice Breaux dissents.

On Application por Rehearing.

Blanchard, J.

In the decree handed down herein, the judgment of the lower court, maintaining the exception of no cause of action as to - the suit against F. Roth, the adjudicatee, was sustained.

In remanding the ease, however, which was necessary in consequence of our judgment on ihe other branch, we gave plaintiffs the right to amend their pleadings in reference to the demand against Roth. But no costs should have been adjudged against him as was the ease in our former decree. In this particular it must be changed, and, accordingly, it is now ordered that so far as the costs of this appeal chargeable to said Roth are concerned, the same must be borne ■ by the plaintiffs.


author: Blanchard, J.

text:
    No. 12,626.
    Katherine Ferris (Divorced Wipe of Geo. Hennings) vs. S. Hernsheim Bros. & Co., Et Als.
    Syllabus.
    1. It is the duty oí factory owners to keep the flights of stairs in their establishments in good condition for the easy and safe passage up and clown of their employees, whose duties require them to use the staircases.
    2. Not doing so and accidents occurring in consequence thereof, they are responsible for injuries received.
    cS. If men, regularly employed to make repairs where and when needed, neglect such duty, their fault is imputable to the master and he is held accountable i therefor.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      A. E. Blaclemar and Benjamin Bice Forman for Plaintiff and Appellant.

      Dinhelspiel & Hart for Defendants and Appellees.
    Argued and submitted March 8, 1898.
    Opinion handed down June 13, 1898.
    Rehearing refused January 23, 1899.
   'The opinion of the court was delivered by

Blanchard, J.

Defendants were proprietors of a cigar and tobacco manufactory in the city of New Orleans.

Plaintiff was an employee therein as stripper of tobacco, and alleges that, while engaged in the discharge of her duties, in descending a stair case from one stray of the building to another, with her arms laden with working boards and leaf tobacco, her foot was caught by the broken and upturned zinc covering on the stairs and she was precipitated headlong down the stair case, inflicting severe personal injuries, rendering her unconscious for days, confining her in the hospital for months and causing her great suffering, pain and anguish. She represents that her leg was broken in several places and in consequeuce the limb is crippled, and deformed; that several of her ribs were broken, her right arm and shoulder bone broken and dislocated; .and that she is rendered by these injuries physically incapacitated from performing the labor necessary to the earning of her subsistence.

She charges the unsafe and dangerous condition of the stair case, .that the same was unknown to her at the time, and that the accident from which she suffered was the result of the gross carelessness and .negligence of the defendants.

She brings this action for compensation and lays her damages at ten .thousand dollars.

Defendants individually excepted that they are not members of any firm known as S. ITernsheim Bros. & Co., and that no such firm is in .existence, which exception the court ordered referred to the merits. 'They then filed an exception of no cause of action, and, reserving the .benefit of all exceptions, answered pleading the general issue, denying injury and damage to plaintiff as alleged by her, denying their liability, and charging contributory negligence and fault on part of plaintiff.

There was judgment rejecting her demand and she appeals. The case was tried without a jury and we have not been favored with the reasons of the trial judge for the decree rendered.

Plaintiff worked on the fourth floor of the factory building. A stair case communicated with the floor above, where boards were kept used by the tobacco strippers in their work. These boards were made from seasoned lumber, were, from three and a half to four feet long, and varied from six inches to about twelve inches wide. When the •leaf tobacco is stripped of its stems it is spread upon these boards. As the boards are needed by the women and girls in their work they are required to ascend by the stair case to the fifth floor and procure them. They are brought down the steps in their arms. These were the methods observed at the factory when the accident complained of occurred. About ten ocloek on the morning of the accident, plaintiff, a young woman, about twenty-seven years of age, ascended the stair case to obtain a supply of boards. She procured them and started with them in her arms down the flight of steps. When a few steps from the top she tripped and fell headlong down to the bottom. She was severely injured, was removed to the dressing room of the fourth floor and thence to the Charity Hospital, where she received' surgical -.treatment.

The theory of her side of the case is that the steps of the stair case were in bad and unsafe condition, the zinc covering on the same broken and torn, that in descending with the boards (her arms and hands occupied in holding them) her foot was caught in one of the torn places of the zinc covering, she lost her balance and was precipitated, boards and all, to the floor below.

The theory of the defence is that the steps were not in an unsafe condition, that plaintiff’s foot did not get caught in a torn place of the zinc covering, but that it was either caught in the folds of her dress, or she trod upon her dress, was tripped and her fall occasioned in this way, or otherwise, by the want of care and prudence on her part.

The question presented is mainly one of fact. If plaintiff’s fall down the flight of steps was occasioned by the fact that the stair pase was not maintained in a reasonably safe condition, if ordinary care and prudence in this regard had not been observed by the owners of the factory, she is entitled to recover for injuries received, unless by her own fault or negligence she has contributed to the accident. What is “contributory negligence” has been the prolific subject of definition by the courts and text writers. It has been aptly stated to be “a want of ordinary care upon the part of a person injured by the actionable negligence of another, combining and concurring with that negligence, and contributing to the injury as a proximate cause thereof without which the injury would not have occurred.”

A. & E. Ency, of Law, Yol. 4, p. 17.

A mass of testimony was taken. As usual in such cases, it is conflicting — so much so that it is no easy task to determine, as to some of the facts, on which side the preponderance rests.

We find the plaintiff’s theory of the case sustained by her own testimony, by that of Anita Moore, Marie Brown and Mrs. Roland' Cobb, all of whom were working women employed at the factory when the accident occurred, occupying the same floor and engaged in same-kind of work the plaintiff was.

Miss Moore, a girl of fourteen, testifies she was ascending the stairs as plaintiff was descending, had just passed the latter when she fell. While this witness was considerably “shaken up” on cross-examination and made some contradictory statements, her evidence is not' without its weight. She was young and inexperienced, and had never' been in court before, and appeared a second time to correct a mis-statement which she says she had made through excitement when first on the stand.

All these witnesses testify to the bad condition of the steps, the broken and torn zinc near the top, from which point plaintiff fell.

Miss Brown, who had worked there for ten years, says her dress was caught in the torn zinc three or four times on the same steps, causing her to fall, and that the zinc covering was pretty badly torn near the top of the steps at the time of the accident. She had occasion to note the fact particularly because of her dress getting- caught in it, and once or twice her foot was caught.

Mrs. Cobb testifies that the steps wore in bad condition, had tripped several times on them herself. She says the zinc was broken on the steps near the top. The tripping which had befallen her was occasioned by the broken zinc, and she had complained of it to her fellow-working- women. On the very morning of the accident she had tripped on the stair case near the top. Had at the time gone to the floor above after boards. She saw plaintiff when she fell.

A Mr. Powers, an engineer, who had long- worked at the factory as such, could not state his recollection, after the long lapse of time, as to this particular flight of steps, but testified he had discovered torn zinc on the stairs in the factory on several occasions. He was engaged at the factory at the time of the accident.

On the other hand, defendant’s theory of the case, so far as the ■condition of the stair case is concerned, appears to be sustained by the witness Finke, who was foreman of the lower floor at the time of the accident, and is still employed there. He states, to the best of his recollection, that while there were some torn places in the zinc on the flight of steps in question, viz.: at the bottom, near the middle and at the extreme top, the second, third and fourth steps from the top were in good condition. So also were other steps immediately below those. He described the zinc, when broken, as “merely worn out and cracked,” and did not recollect any pieces “turned up.” ITe says he examined the steps after the accident.

He is corroborated by the witness Farr, who was and is employed as a “handy man” at the factory. Some time before the accident this witness had repaired one of the steps on this flight. There had been no other repairs. Pie was not at the factory at the time of the accident; was at the residence of one of defendants, working, and had been for several days.

Several other witnesses- — women who worked at the factory then, and now, two of them colored — also corroborated Mr. Finke as to the-condition of the steps. But in the main they confine themselves to declaring' they saw no holes, or torn iflaces, in the zinc on the steps, and do not say they had examined the steps to ascertain their condition.

We are not impressed with this corroborative testimony sufficiently" to give it the weight necessary to turn the scale, on this branch of the-case, against the plaintiff, who adduced positive and affirmative evidence of the out-of-repair condition of the stair case. And we are-confirmed in this view by a significant circumstance or two noted in the testimony.

For instance, Mr. Finke, who seems to have been in charge of that part of the building at the time of the accident, says Ee had given orders to Farr, whose duty it was to do repairs, to repair the steps in question, and that this was some three or four days before the accident. Farr had not obeyed this direction, but, instead, had gone up to-do work of repairing at the residence of one of defendants.

Another circumstance militating- against defendant’s theory is-found in the haste with which the zinc was torn up from the entire-flight of steps immediately following the accident. Mr. Finke was cabed as soon as plaintiff had fallen, and having made provision for her removal to the hospital, proceeded to make an examination of the-steps. While minimizing, on the stand, the defects he discovered in the way of broken zinc, and confining- the same to a very few of the iteps, he immediately ordered the whole of the zinc covering removed and it was done that day. No time seems to have been given the-friends of the lady to make an examination on her behalf.

On the whole we conclude the weight of the evidence sustains plaintiff’s contention that the stairway was not in good condition and' was unsafe.

She fell from one of the steps near the top. It is not material which one, and we attach no importance to the dispute or conflict off evidence as to the particular step where she tripped.

Now, what caused her to trip? As against the contention of plaintiff that her foot was caught in the torn zinc defendants produce two-colored women, who were then and are now employees of the factory, and they testify to the effect that plaintiff’s fall was occasioned by her foot getting caught in her dress, stepping upon her dress, etc. These-women were sitting near the head of the flight of steps and claim to-have been looking at plaintiff when she fell. They were engaged in conversation with each other. One of them was at work stripping tobacco, the other was doing nothing'.

They took such particular notice of the plaintiff that they actually counted the number of boards in her arms, one of them fixing the number definitely at seven, and the other more discreetly saying five or six. Plaintiff testifies she had four.

The statement of these witnesses that plaintiff's fall was caused by stepping on her dress as she went down the stairs is disproved by a piece of physical evidence disclosed by the record. Plaintiff, on one of the days she appeared on the stand, was dressed in the identical dress or wrapper she wore at the time of the accident. She was required to stand up and the distance from the bottom of the skirt to the floor was measured. It was found to be four inches. A dress four inches short from the floor might be trod upon by the woman wearing it ascending a stair case, but descending a stair case, the steps of which are seven and three-quarter inches high, she could not possibly tread upon her dress. Standing on one step the bottom of her dress would be eleven and three-quarter inches to the floor of the step below her. How could she tread upon it in taking the downward step ?

We cannot accept this theory that plaintiff is chargeable with carelessness in treading upon her dress and precipitating her own fall.

■ Nor will it do to say she knew of the defects of the steps, and, knowing them, was guilty of contributory negligence in going- up and down the stair case. There is evidence in the record that for four or five days preceding her fall she had not used them, and, besides, with her arms full of boards, held in front of her, she could not, in descending, see each step. But, be that as it may, it was made her duty to use the stair case.

The boards upon which she was required to spread the tobacco-stemmed were kept on the upper floor. They were essential in her work. They were not brought to her on the floor upon which she worked. She was expected and required to go after them. There was' no way to obtain them except by going up and down that flight of steps. Nor is she chargeable with recklessness or carelessness in descending them with four of the boards in her arms. She could well' carry that many down a flight of steps that were safe, and there was no way to get them down except to carry them. All through each-' working day the factory girls carried down the boards in a similar way.

The fact that they, as well as plaintiff, passed safely down on numer-ous occasions, does not relieve defendants of liability for the accident that at last occurred by reason of the bad condition of the stairway. Existing dangers are more often escaped than otherwise, but because this is so it does not follow that when it is not escaped and injury results, the party directly responsible for the existence of the danger goes free -of liability.

It was the duty of the factory owners to keep this flight of steps in good condition for the easy and safe passage of their employees up and .down.

Not doing so and-accident occurring, they are responsible in damages for injuries received. Clairain vs. Telegraph Co. 40 La. Ann. 178; Bailey on Master’s Liability for Injuries to Servant, p. 35.

Defendants, be it said to their credit, did have men employed to keep the stairways and other parts of the building in repair and safe for the employees. The evidence, indeed, discloses unusual care in this regard. But if these men neglected their duty their fault is imputable to the master and he is responsible therefor.

Faren vs. Sellers, 39th La. Ann. 1011.

With respect to the injuries sustained by plaintiff, her case is greatly exaggerated in the petition filed. If she were rendered unconscious at all by the fall it was but momentary. She was poiiscious •while in the dressing room, to which she was immediately conveyed, .and the physicians testify she was not unconscious at the hospital. 'She was in the hospital only twenty-six days. Instead of her leg ;being broken in several places it was not broken at all. Its only injury was a sprain and wrench of the knee, which neither crippled it, nor deformed- it, nor shortened it as charged, and it is entirely cured. None of her ribs were broken; neither was her arm broken. Her •worst hurt was in the right shoulder, the blade of which was dislocated, and which, the evidence seems to disclose, will never be perman- • ently restored. The shoulder droops a little in consequence of it. It disables her to a certain but limited- extent, and that can be rectified 'by her submission to an operation suggested. She wag in a charity ward at the hospital and had nothing to pay, and if there had been charges her employers had notified the hospital officials they stood -responsible therefor and wished her given every reasonable attention. Besides this, they paid her wages, what she was earning- at the factory when injured, continuously for nine weeks. Whatever judgment she is entitled to, its amount should be mitigated by the kindness and ■care bestowed upon her by the defendants following- the accident.

We think eight hundred dollars sufficient compensation under these circumstances, and, accordingly, it is ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered and decreed that plaintiff do have and recover of defendants, Isadore ITernsheim, Joseph ITernsheim, and the heirs of Simon Ilernsheim, deceased, in solido, the sum of eight hundred dollars, with legal interest from this date, together with costs of both •courts.


text:
    No. 12,851.
    Mrs. E. J. Williams et al vs. Pope Manufacturing Company.
    Syllabus.
    1. Deception of misjoinder of parties plaintiff, and improper cumulation of actions sustained by lower court. Reversed.
    2. Not improper for a mother to sue in the same action for damages accruing to her individually, and for damages accruing to her minor child, as the result of one and the same act of defendant.
    .3. The fact t^at in the same individual, in- two capacities, the right to sue resides, ccl pled with the fact of the common origin of the cause of action, determines the question presented in favor of that view which makes one suit suffice for both claims.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      ■J. F. Pierson, Rogers & Dodds for Plaintiffs, Appellants.

      William 0. McLeod, Buck, Walshe & Buck for Defendant, Appellee.
    Argued and submitted November 22, 1898.
    Opinion handed down December 19, 1898.
    Rehearing refused January 23, 1899.
   The opinion of the court was delivered by

Blanchard, J.

This is an action by a mother and minor daughter-for damages growing out of the arrest and imprisonment of both, at., the instance of the agents of defendant company, on a charge of-breach of trust and embezzlement.

The accusation is averred to have been wholly false, wanton and. malicious.

Mrs. Williams sues individually for ten thousand dollars, and then: in her capacity as mother of Florence Williams, aged fourteen years,, and for the use and benefit of the said Florence, she sues for ten. thousand dollars.

She avers her residence to be in'the State of Mississippi, that she is the wife of Charles H. Williams of that State, that her husband abandoned her and the six children of their marriage in 1893, and has since absented himself from the matrimonial domicile, and she is not now aware of the precise locality in Mississippi in which he may be found.

She asked to be authorized by the court to institute the suit and-stand in judgment therein, and was, accordingly, so authorized.

Plaintiffs appear to have been temporarily in the city of New-Orleans when subjected to the charge and arrest aforesaid.

Defendant, the day following their arrest, caused the charge to be dismissed, the plaintiffs were released from custody, and subsequently brought this action.

Defendant company excepted on various grounds, one of which was-that there is an improper and illegal joinder of parties plaintiff, there being two distinct actions and demands prosecuted by and for two-different plaintiffs cumulated in the same petition.

This ground of exception was sustained and the suit dismissed.

The judge a quo appears hot to have passed upon the other grounds of exception, though all were embodied in the same plea and tried' together.

Plaintiffs appealed.

For the purpose of the trial of the exception of misjoinder and improper cumulation the. capacity of Mrs. Williams to sue individually and on behalf of her minor daughter must be admitted.

This leaves to be determined the plain question whether a cause of’ action arising in behalf of Mrs. Williams, growing out of the tort of" defendant, and a cause of action arising in behalf of her daughter,. growing out of the same tort, may be cumulated in one and the same suit.

We think they may.

For the purpose of the suit the mother is assimilated to the character of tutrix of her daughter.

A common wrong is represented to have been inflicted on the two at one and the same time. The mother alleges she individually was-damaged by it, and that her daughter, with her at the time and under her care and control, was damaged by it.

In Clairain vs. Telegraph Company, 40 La. Ann. 178, it was held-that the claims of the widow and minors for damages were properly presented in the same suit.

The widow sued in her own right individually for $5,000.00 and on behalf of her minor children, as tutrix, for $5,000.00.

Defendant company, there as here, excepted upon the ground of improper joinder of parties upon distinct causes of action, and that the widow and children could not in the same suit claim the damages-which each had separately sustained.

In approving the ruling of the trial judge denying the exception,, this court said: “We think the ruling * * * proper, considering that all the damages claimed resulted from one cause, and all parties-in interest were before the court, and that the widow was suing both in her individual and representative capacities, and since a judgment final and conclusive as to all parties could be rendered in the suit pending. It were better to end the controversy in the one suit than to-remit the plaintiffs to two different actions.” t

In Curley vs. Railroad Co. 40 La. Ann. 812, the plaintiff sued' claiming damages for herself individually and on behalf of her minor-son, appearing in the same suit for him in her capacity as tutrix.

Denying defendant’s exception, this court said: “The widow sues-for her interest in her own right and for the interest of her minor child in her representative capacity. Both have an equal interest in the same cause of action * * * and there is a proper joinder of' parties. The damages claimed resulted from one cause, relating to one liability on the part of defendant. All parties in interest are-before the court and the judgment will be final and conclusive as to-all.”

Undoubtedly, if Mrs. Williams has capacity to institute this action-for herself individually, and as the representative of her daughter,. .the judgment to be herein rendered will form res judicata. So, this contention cannot be raised.

The two claims trace their origin to a common source; they sprang from the same act of defendant; they arose at the same moment of .time.

Why should she be driven to bring two suits, one in her own name and for .herself individually, the other as mother for the use and benefit of her minor child ?

If she recovers judgment for her daughter’s account, the same capacity which authorized her to stand in judgment in the suit would authorize her to collect and receipt for the payment of the judgment. This could be done as well in the joint action as in a separate suit. The law abhors a multiplicity of actions. Interest reipublicae ut sit finis litium.

The fact that there may be defenses to be urged good against the mother but not available as to the daughter, or vice versa, does not present a controlling opposition view to that discussed. It may well be that, notwithstanding the claims of mother and daughter are based upon the samo and a single act of defendant, and are in this sense cognate, separate defenses arc available. If so they may bo set up and proven, and if the evidence warrants it a judgment may be rendered in favor' of one of the claimants and against the other. But the fact that in-the same individual, in two capacities, the right to sue resides, coupled with the fact of the common origin of the cause ■of action, determines the question presented in favor of that view which makes one suit suffice for the two claims.

Wo will not pass upon the other grounds of the exception further than to remark that, in view of the allegations of plaintiffs’ petition, much that is urged by way of exception is properly referable to the merits.

For the reasons assigned, it is ordered, adjudged and decreed that •the judgment appealed from is annulled, avoided and reversed, and it is now ordered that the exception of misjoinder and improper ■cumulation of actions be overruled, and that this cause be reinstated •on the docket of the court a qua to be proceeded with according to the views herein expressed and the law, costs of both courts in this behalf •expended to be borne by defendant and appellee.

Ntohorls, C. J., takes no part, being absent, ill.


text:
    No. 12,869.
    James Wilkinson et als. and P. F. Herwig, vs. William Langridge, Sheriff, Et Al. (Consolidated).
    Syllabus.
    1. Grand Isle and Grand Terre Island, lying in tile waters of the Gulf of Mexico, held not included within the limits of the Lafourche Levee District.
    2. Had the Legislature so intended it would have evinced its purpose clearly and unmistakably.
    3. Not the intention of this decision to establish a precedent under which exemption of all islands from levee taxes may be claimed.
    4. Cases arising involving the question of exemption as affecting, other islands will be dealt with upon the situation and on the facts and circumstances as then presented.
    ON APPEAL from the Twenty-First Judicial District Court for the Parish of Jefferson. Rost, J.

      James WilkinsonJ E. Howard McCaleb, Edwin H. McCaleb, Jr., and' John Dymond, Jr., for Plaintiffs and Appellants.

      Robert J. Perkins, District Attorney, for Tax Collector, Defendant, Appellee.

      Robert N. Sims for Board of Levee Commissioners Lafourche Basin Levee District, Defendant and Appellee.
    Argued and submitted January 13, 1899.
    Opinion handed down January 23, 1899.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiffs are owners of parts of Grande Isle and Grande Terre Island lying in- the waters' of the Gulf of Mexico. Where these islands are situated there is an extensive inlet or arm of the Gulf, part of which is called Barataría Bay, part Bay Des llettes, .and part Caminado Bay.

At the entrance to these bays from the gulf lie the islands named. .So that on one side they are washed by the waters of the gulf proper, on the' other by the waters of the bays.

The islands pertain to the territorial jurisdiction of the parish of ■Jefferson.

Tile question raised in these suits is whether the islands are subject .to the levee taxes authorized by Act No. 13 of the Acts of 1892, especially by Sections 8 and 9 of said act.

The act referred to is the one creating “the Lafourche Basin Levee District.” By Act No. 100 of the Acts of 1892, which redefines its limits making a slight change in the same, it is styled “the Lafourche Levee District.”

The tax-collector and the Board of Levee Commissioneis insist that the islands are within the limits of the Levee District and the .property thereon subject to payment of levee taxes.

The contention of the plaintiffs, property holders and tax-payers, is the reverse. They declined to pay the levee taxes, and were proceeded against by the tax-collector, who, pursuant to law, advertised ■the property for sale.

Whereupon plaintiffs brought the present suits, enjoining the sale .and praying that their property on the islands be decreed not subject to the imposition of levee taxes.

The judgment below was against them, holding the islands subject to the levee taxes, and dissolving the injunction restraining collection ■of same.

Plaintiffs appeal.

The first question naturally arising is: Are the islands included within the limits of the Lafourche Levee District?

While the pleadings may not present this question as an issue with clearness and precision, there was testimony relating to the same, received without objection, and it was insisted on by plaintiff’s counsel in argument. It is considered to be properly before the court for its ■determination.

Act No. 100 of the Acts of 1892 defines the limits of the District.

There are embraced within it all the parishes and parts of parishes, except the parish of Orleans, lying in the district of country between •the Bayou Lafourche, the Mississippi River and the Gulf of Mexico. As thus defined, the Levee District includes, the statute declares, a portion of the following parishes, viz.: Ascension, ¡át. J ames, St. John, St. Charles, Jefferson, Plaquemine to the lower line of Riceland plantation, Assumption and Lafourche, as far down as the lower limits of Ilarrang Canal on Bayou Lafourche.

The intention of the statute is to place within the district the country between the Bayou Lafourche, the Mississippi River and the Gulf of Mexico, subject to the later and succeeding' modification as to certain parishes or parts of parishes. It was not the intention to include islands, like these under consideration, lying in the Gulf of Mexico.

Grande Isle and Grande Terre Island, bounded on one side by the gulf proper and surrounded by its waters, must be held to lie in the Gulf and, hence, not included in the. description, “district (of country) between the Bayou Lafourche, the Mississippi River and the Gulf of Mexico.”

Had the General Assembly, in enacting the Levee District act, intended the islands in the Gulf to be within the limits of the District and subject to levee taxes, it would have evinced its purpose clearly and unmistakably.

There may be islands, within the ordinary definition of that term, surrounded by interior waters only, that are within the limits of the Levee District.

We are concerned now with Grande Isle and Grande Terre Island only, and are not to be considered as establishing a precedent under which exemption of all islands from levee taxes may .be claimed. Should cases arise involving the question of exemption as affecting other islands, we will deal with the same upon the situation and on facts and circumstances as then presented.

For the reasons assigned it is ordered, adjudged and decreed that the judgment appealed from decreeing the property of plaintiffs situated on Grande Isle and Grande Terre Island, Parish of Jefferson, subject to the levee taxes claimed by the commissioners of the Lafourche Levee District for the year 1893, under the provisions of Act No. 13, of 1892, be annulled, avoided and reversed, and it is now ordered and adjudged that their said property on the islands named be held not included within the limits of the Lafourche Levee District and not subject'to the taxation authorized by the act creating the Levee District.

It is further ordered, etc., that the writ of injunction herein sued out be sustained and perpetuated, and that costs of both courts be taxed against defendant and appellee.


text:
    No. 12,878.
    Lee R. Hall et als. vs. Succession of John P. Richardson.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Righlor, J.

      Andrew II. Wilson for Plaintiff and Appellees.

      H. 71. Price and Thos. J. Semmes for Defendant, Appellant.
    Argued and submitted December 9, 1898.
    Opinion handed down January 26, 1899.
   The opinion of the court was delivered by

Blanchard, J.

The parties to this suit having agreed upon a compromise, and for that purpose to have a judgment embodying the compromise entered in the District Court, and considering the stipulation entered into between counsel, now on file:

It is ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and that the cause be remanded to that court for further proceedings pursuant to the-agreement of compromise.


author: Nicholls, C. J.

text:
    No. 13,068.
    Kelly-Goodfellow Shoe Company vs. Ben. K. Fluker et al., Certified from the Court of Appeals, Second Circuit, by the Judges. Thereof Applying for Instructions.
    Syllabus.
    The expiration of the period *'or which a respite has peen granted, authorizes-parties whom; right of action has been stayed by the order of respite, and whose claims have not been paid, to proceed separately in their individual behalf against their debtor. There is no obligation- or duty on their part to foiee him to a oessio honor um.

      Stubbs & Bussell for Plaintiff.

      E. T. Lamkin and W. F. Millsaps for Defendants.
    Submitted January 23, 1899.
    Opinion handed down February 6, 1899.
   The opinion of the court was delivered by

Nicholls, C. J.

The judges of the Court of Appeals for the Second! Circuit have submitted to this court, for its opinion, under Article 101 of the Constitution, the following question of law, the determination of which they declare is necessary and proper for a decision by the Court of Appeals, of the case of the Kelly-Goodfellow Shoe Company vs. Ben. K. Fluker et al., pending before it on appeal.

“After the full term of a respite has elapsed, and no payments have been made by the debtor, can a creditor who participated in the meeting of creditors, and voted for the respite, proceed against the debtor by direct action for the recovery of his debt alone without first resorting to judicial process to annul or vacate the judgment homologating the proceedings of the creditors, or proceeding to force a cessio bo noruin

They state that the question arose under the following facts :

The defendant, Ben. K. Fluker, in March, 1895, was granted a respite for three years for the payment of his debts. The judgment homologating the proceedings of the creditors was signed March 2, 1890, and the terms of the respite were that the debts should be paid in three equal annual installments from that date.

The plaintiffs were creditors, participated in the proceedings and voted for the respite. The respited debtor failed to pay any part of plaintiffs’ claim during the term of the respite, and on October 25, 1898, the plaintiffs brought an ordinary action against him to recover the same, coupling an attachment thereto.

'■ The defendant, Eluker, pleaded the respite in bar of the suit, alleging that the judgment of March 2, 1895, had never been revoked or annulled, but was still in full force and effect, and therefore the suit ought not to be entertained.

The district judge, in a written opinion filed in the cause, while maintaining that the plea should be overruled, yet maintained it contrary to his own views, because the Court of Appeals for the First Circuit, in. the First Circuit, in the case of Mrs. M. L. Bennett vs. Meredith, Sheriff, decided by that court in October, 1890, in the parish of Caldwell, maintained an injunction presenting the same issue.

The judges of the Court of Appeals for the Second Circuit, in their application, state that they differed from the views expressed in that case, and thought that the respite presented no bar to plaintiffs’ suit, because the period for which it was granted has expired, and submitted the question to the Supreme Court in the interest of uniformity in the jurisprudence of the State for a proper decision of the cause.

We know of no legal reason why individual creditors, whose action has been stayed by an order of respite, may not proceed at once after the expiration of the delay fixed by the order to enforce their rights (if not then satisfied) by ordinary proceedings as if the respite had not been granted.

We have, on several occasions, declared, while the respite was still in force, individual creditors would not be permitted to institute suits in their separate interest under and through which the property of the. debtor, the common pledge of the creditors, should be appropriated to their own particular benefit. That the order for the respite, and the respite proceedings themselves, could not bo ignored by direct action of individual creditors, acting exclusively in their own behalf, even though the debtor may have failed to have carried out the duties imposed upon him by the respite. That their remedy was either to proceed contradictorily with the debtor and all the creditors to have ’the respite set aside, or to take action such as would enure to the benefit of all the creditors. Without intimating under what circumstances and by what method it should or could be done, we intimated that a forced cessio bonorum would be the action of that character. The expiration of the time granted for the respite carries with it ipso facto a complete change in the attitude of the creditors towards the debtor and relatively to each other. Separate action for individual benefit, prosecuted during the respite, would enable particular creditors to utilize the respite proceedings for their own good to the prejudice of the others resting upon them in security, and to take advantage of facts known only to themselves and possibly coming to that knowledge by collusion with the debtor. All parties, however, are equally advised as to the extent of the delay granted, and when it does expire all stand upon an equality as to freedom of action. In Anderson vs. Duson, 35 An. 917, and Vicksburg Liquor Company vs. Jefferies, 45 An. 630, and other later cases speaking of the order of respite, we said: “The effect of the order was to create a judicial contract between the debtor and all his creditors by which the debtor was allowed a delay for the payment of the sum which he owed them, and that this contract gave rise to reciprocal obligations not only as between each creditor and the debtor, but between each creditor and all the others, which obligations they were bound to respect,” but the courts are not authorized to broaden the effect of these obligations beyond the exact terms of the contract between the parties. Article 3084 defines a respite to be an act by which a debtor, who is unable to satisfy his debts at the moment, transacts with his creditors and obtains from them time or delay for the payment of the sums which he owes them, and Article 3085 the voluntary respite as being that when all the creditors consent to the proposal which the debtor makes to pay in a limited time the whole or a part of his debt. The forced respite is declared to be that when a part of the creditors refuse to accept the debtor’s proposal, and when the latter is obliged to compel them, by judicial authority, to consent to what the others have determined in the cases directed by lawc Though differing from each other in the respects "stated, voluntary and forced respite are identical as being contracts limited in their scope and effect to a limited period fixed and defined — terminating ipso facto -by expiration of this time.

Article 3096 declares that the time allowed to a debtor in a forced respite can not exceed three years, and if the majority of the creditors-in number and amount have granted him more time, the creditors who are opposed to the respite may cause this delay to be reduced to the legal time, saving to the debtor the right when it shall be expired to call these creditors again in order to obtain a new delay which, in the lase ease, shall be granted only if all these creditors unanimously consent to it.

It is obvious that the restriction upon the action of creditors is limited to the period fixed in the order of respite, and that the contract of respite terminating ipso facto by expiration of time, all parties are released from the restrictions imposed by it, and fall back upon their original rights which have remained all the time intact and unimpaired, though temporarily held in abeyance (St. Louis National Bank vs. Block, 44 An. 893).

Erom that time forward the various creditors owe no duty to each other, and none to the debtor under the respite. Individual creditors,by placing themselves in the situation which would authorize them to-exact a cessio honorunij may have recourse to that remedy^ but they are under no legal obligation or duty to do so. Act No. 133 of 1888, if it applies at all to proceedings to be taken after the expiration of the respite delay, is permissive, not mandatory.

The objections urged in this case are not advanced by á creditor, but by the debtor himself in his own interest. His pretensions are utterly without foundation (Dyson vs. Brandt, 9 M. 498.) If he desires to make a voluntary surrender, he is at liberty to make an application to the court to that end, but he can neither gain additional time under the respite, nor force his creditors to throw him into a surrender under a supposed right which he holds against them to do-so. The right to force a surrender upon the debtor is a rigm held by creditors adversely to their debtor, and not one which the debtor can coerce them into exercising.

We answer in the affirmative the question submitted to us herein.

The decision of the Court of Appeals for the Eirst Circuit in the-case of Mrs. M. L. Bennett vs. Meredith, Sheriff, referred to by the judges of the Second Circuit, is erroneous, and should not he followed.


author: Nioiiolls, C. J.

text:
    No. 13,043.
    State ex rel. Thelesmar Marceaux vs. Judge C. DeBaillon, of the Seventeenth Judicial District Court.
    Syllabus.
    .Motions to quash and rulings thereon in the court below are reviewable only on appeal. Cases are not to be tried piece-meal, and issues ol that character are to be determined and passed on under the appellate jurisdiction, and not under the supervisory jurisdiction of the Supreme Court. State ex rel. Crozier vs. Host, 49 An. 1451.
    Prescription is a plea to be presented to the court of first instance and passed on by it in criminal cases. The ruling of the court on the plea comes up for review, on appeal from final judgment in the cause. The Supreme Court is not authorized under its supervisory jurisdiction to take up the question of prescription as an original proposition, and deal with it as such.
    Q N APPLICATION for writs of certiorari and prohibition.

      L. L. Bourges for Relator.
    Respondent Judge pro se.

    Submitted on briefs January 18, 1899.
    Opinion handed down January 23, 1899.
    Rehearing refused February 6, 1899.
   The opinion of the court was delivered by

Nioiiolls, C. J.

In relator’s application for prohibition he avers that he is about to he tried in the parish of Vermillion upon five papers purporting to be indictments found against him by what is claimed to have been a grand jury for that parish, but in reality by one which had ceased to have any legal existence. That it was empaneled •on May 9, 1896, and went out of existence on the 12th of May, 1898 (date of the going into effect of the Constitution of 1898), by the terms of Article 117 of the Constitution of 1898- That said indictments were null and void, and the District Court had no jurisdiction ■of the said five cases, because the grand jury was composed of Sixteen jurors instead of twelve, as Article 117 of the Constitution required. That immediately after said indictments were found, relator filed motions to quash the said indictments on the grounds aforesaid, which motions were overruled, and relator reserved bills to the ruling.

That, furthermore, prosecution for the acts for which he was about to be tried was barred by prescription, and relator was entitled to be discharged, the court having no jurisdiction, by reason of the effect, of said prescription. On these grounds relator prayed that the records in the five cases be ordered to be sent up under a writ of certiorari; that a writ of prohibition be directed to the judge of the District Oourt for Vermillion'parish, forbidding him from proceeding any further in said cases; that, after due proceedings, the said writ be made perpetual, and a decree rendered annulling said pretended indictments, and maintaining the prescription of one year, and discharging relator from the charges. In his return to the writ served on him, the district judge answered that the indictments found against relator were returned by a grand jury legally organized on May 10, 1898, under the then existing Constitution and laws, and before the Constitution of 1898 went into, operation; that said grand jury had immense labors before them, and it had not completed its labors when the Constitution of 1898 went into operation.

That on May 17, 1898, it returned four bills of indictment against relator, and on May 20th (the day on which it completed its labors, and was discharged), it returned a fifth bill against him. That the framers of the Constitution did not intend .to stop the whole machinery of a court which,- on the day of the adjournment of the convention, was in full operation, and quash all trials and proceedings not at that moment completed, and to begin over again by drawing another grand jury for service at a session begun before the Constitution became operative. That the proceedings attacked were protected by Article 325 of the Constitution of 1898, to the effect that all informations and indictments which had been found or filed, or should thereafter be found or filed, for any crime or offence committed before the adoption of that Constitution, might be prosecuted as if no change had been made.

That relator raised the same complaints against these indictments' which he is now urging in the case against him of the State of Louisiana vs. Thelesmar Marceaux (12,365), in June, 1898, when that ease was on appeal before the Supreme Court, and that he (the judge) had been reliably informed that relator’s counsel had formally waived and abandoned the same in open court.

We are of the opinion that the orders heretofore issued in this matter should be set aside, and relator’s application for a prohibition, and for his discharge, should be refused.

If true it 'be, as relator alleges, that the indictments returned against him are null and void, that fact can and will be passed upon and so decreed in due course on appeal taken by relator from an adverse verdict and judgment, should one be rendered against him, unless he should have been found to have cut himself off from the right to urge such objections.

Motions to quash, and rulings of court thereon, come up for review' in the Supreme Court on the appeal taken from the final judgment in' the cases in which they are made. These motions, and the rulings thereon, can not be detached from the eases themselves and made the subject matter of review by the Supreme Court in the exercise of its supervisory jurisdiction.

Cases are not to be tried piece meal in that manner, and issues of that character are to be determined and passed on under our appellate,, not our supervisory jurisdiction. State ax rel. Crozier vs. Rost, 49 An. 1451. Relator’s application to have this court declare that prosecutions against him for the acts with which he is charged are barred by prescription, and to have us order him discharged, is so utterly without foundation, as to call for no special mention.

Prescription is a plea to be presented to and determined by the court of the first instance. The ruling of the court on the plea comes up for review on appeal from the final judgment in the cause.

It is not pretended that such plea has ever been presented or acted' on by the District Court. We are not authorized, under our supervisory jurisdiction, to take up the question of prescription as an original proposition and deal with it as such. Had the plea been made and overruled, the same reasons which we have giveii for not detaching the ruling of the District Court, on a motion to quash from the main case, and reviewing it under our supervisory jurisdiction, would apply.

For the reasons assigned it is hereby ordered, adjudged and decreed, that the order heretofore issued be set aside, and relator’s application made herein be, and the same is refused, and his application dismissed.