author: Manning, J. Poché, J.

text:
    No. 9508.
    Isaac Levy vs. New Orleans Waterworks Company.
    The codal provisions of our practice touching injunctions are broader and more comprehen sive than the rules of the chancery courts and include causes for injunctions that would not be sanctioned in a common-law court. Differences in the manner of obtaining the-writs under the two systems are not less manifest than the difference in their scope. Under our system when it has been judicially determined that the writ was rightfully issued, there can be no doubt that the party who has been injured by disobedience of it may recover all damages he has suffered thereby.
    APPEAL from the Civil District Court for the Perish of Orleans. Monroe, J.

      Jonas (6 Nixon for Plaintiff and Appellee.

      J. JR. JBeclnmfh for Defendant and appellant.
   The opinion of the Court was delivered by

Manning, J.

This suit is for the recovery of damages alleged to-have been sustained because of the cutting off' water from the plaintiff’s rice-mill by the defendant company. It is a pendant to the injunction-suit between the same parties.

The items are loss of profit of sixteen days milling estimated at $2,520.20 — the expenses of the mill while idle, $439.52 — interest on the value of the mill-machinery and on the value of the rice on hand at the stoppage, $189.12 — sum expended on attempting to bore wells to-obtain water, $150 — total $3,298.84.

The lower court gave jndgment for $94.58.

The water was cut off October 5, 1884, and was restored on 21st. of same month. On the day before its restoration the parties to this suit agreed in writing that the plaintiff should pay four hundrod dollars-cash for his water supply for two years from Oct. 1, 1883 to same date 1885, reserving the question of any further sum due the defendant to the decision of the injunction suit pending, and the defendant agreed to turn on the water at once, the right of each to claim damages of the other being reserved. The money was paid and the next day the water-connection was restored.

The petition was filed w’hile the injunction-suit was ponding and therefore before it had been judicially determined whether the injunction had been rightfully or improvidently granted. This was made-the ground of an exception of no cause of action which was properly overruled.

Of course the plaintiff, in bringing his suit for damages during the pendency of the injunction, ran the risk of an adverse decision in tlie .first suit, iu which event his suit for damages would not only have fallen but his adversary, on suing him in turn for damages for the wrongful injunction, could have included the costs and expenses put upon him bv the plaintiff’s second suit. But if he chose to take the risk no harm vras done. The two suits went along pari passu, the injunction having been first, tried, and the fact that we have the two records now on appeal at the same time, each complete and with all necessary or available proof, is an answer to the objection that the present suit was premature.

It is still claimed by the defendant that the injunction was wrongfully obtained and that there is no warrant of law for it, but even if rightfully issued that it did not extend beyond Oct. 1, 1884. All contention on the duration of the writ is closed by our decision in State ex rel. Waterworks Co. v. Levy, 36 Ann. 941, and upon the plaintiff’s right to the writ it is very likely that at common law it would not be issuable, but the codal provisions for our practice are broader and more comprehensive than the rules of the chancery courts and include many causes for injunctions that would not he sanctioned in a common-law court. Differences in the manner of obtaining the writs under the two systems are not less manifest than the difference iu their scope, and there can be no doubt that when it has been determined that the writ was rightfully issued, the party who has been aggrieved by disobedience of it may recover all damages he has suffered thereby. Code Prae. art. 308.

In estimating these damages we do not find data in the record that justify us in altering the amount assessed by the lower judge. The expenses of employees would he included by us as they would have been included by him, but they were employed by the year and no loss quoad their salaries was sustained by the stoppage of the mill.

Judgment affirmed.

Dissenting.

Poché, J.

Referring to my dissenting opinion in the case of the State ex rel. Waterworks Company vs. Levy, 36 Ann. 941, and believing for the reasons therein given that there was no injunction on the ■fifth of October, 1884, restraining the Waterworks Company from cut-ting off Levy’s water supply, I hold that they cannot be mulcted in damages for disposing of their own property according to their own .judgment and in the light of their best interests.

I therefore dissent from the opinion and decree of the majority in ■.this case.

Bermudez, C. J. I concur in this opinion.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 9608.
    The State ex rel G. W. Sentell et al. vs. Judge of the Twelfth District Court, Parish of Avoyelles.
    District courts have no power to question the authority of mandates of this Court or to refuse to execute them j but the utmost effect which can be claimed for them, so far as tboir execution is concerned, is that they shall he executed according to law. When an application is made to restrain further proceedings in execution of a writ on the ground that the requirements of the law as to the mode of exocution have been violated, the district court does not exceed its powers iu granting such an injunction. "When, thereafter, it has rendered a judgment dissolving the injunction, the party cast had the right to a suspensive appeal, and in granting the same the judge only performed his legal duty.
    During the pendency of such appeal, the injunction operates as if never dissolved, and it is not the duty of the judge to proceed with the execution of a writ thus enjoined.
    -An application for mandamus directing him so to proceed cannot ho allowed.
    ^REPLICATION for Mandamus.

      Thorpe & Peterman and Tj. K. Barber, Jr., for tlie Delators.
   The opinion of the Court was delivered by

Fenner, J.

At the recent term of this Court at Opelousas, in the suit of G. W. Seutell et al. vs. Mrs. Dora L. Stark, a final judgment was rendered in favor of plaintiffs and against defendant for a certain sum claimed, with recognition of special mortgage on property described and ordering tlie enforcement thereof to pay the judgment. Onr mandate was duly recorded in the district court and a writ of fieri facias was issued in accordance therewith.

When the sheriff had made his seizure and was proceeding in execution of the fi. fa., tlie defendant filed a petition for an injunction restraining the plaintiffs and the sheriff, “from advertising, selling or proceeding any further with the seizure, advertisement and sale of her property” under said writ, until tlie final determination of tlie injunction suit. Tlie judge issued the injunction on a bond for two thousand dollars.

Thereupon Sentell et al. filed a motion to dissolve the injunction with damages.

Upon hearing of said motion, the judge rendered liis judgment dissolving the injunction and condemning Mrs. Stark and her sureties to pay damages. Within the legal delay, Mrs. Stark applied for and obtained an order for a suspensive appeal upon a bond of two thousand ■dollars.

Under this state of case, the relators make the instant application of a writ of mandamus ordering the district judge to proceed with the •execution.

Unless the judge acted beyond his powers in granting the injunction thus rendering the injunction itself an absolute nullity, or in granting a suspensive appeal from his judgment of dissolution, it clearly cannot be his duty to proceed with the execution of the writ, during the pendency of such appeal and, therefore, mandamus would not lie.

We understand relators to contend that the injunction was a nullity, because it restrained the execution of a judgment of this court, and because the district courts are without authority to arrest or suspend the execution of judgments rendered by this Court.

If the injunction issued was based on any grounds assailing the plenary authority of our judgment or its absolute title to be executed according to law, the contention might have force. But we have examined the petition for injunction and we find no such questions raised. The attack is levelled exclusively against the form of the writ and the proceedings under the writ.

Tlie utmost effect which can be claimed for our judgments, so far as their execution is concerned,’is that they shall be executed according to law. Tn this respect they stand on a plane with all other final judgments.

The [lower of the district court to restrain illegal proceedings under writs issued in execution of judgments is unquestioned; and its exercise involves no reflection upon the authority of the judgment and no denial of its title to execution.

We have examined all the cases referred to by relator’s counsel, on the subject of the power inferior courts have over the execution of mandates of this Court, viz: 11 La. 366; 6 Rob. 92; 16 Ann. 233; 20 Ann. 521; 33 Ann. 443. None of them go further than to assert the duty of inferior courts to recognize the conclusive authority of our mandates, and to award them legal execution. Not one denies or questions the right to restrain proceedings under writs issued in their execution when violative of legal requirements.

We must decline to follow counsel in his discussion of the merits of the grounds upon which the injunction was claimed. If they were as frivolous as he contends and, however, apparent, it might be that the motive ivas to procure delay, that would only consign the proceeding to the company of that huge catalogue of unjust suits with which the ears of courts are constantly vexed.

It is enough for us to find that in granting the injunction the district judge acted within his power and jurisdiction ; that in dissolving it he did the same; that in granting a suspensive appeal from the judgment of dissolution he merely accorded to appellants a settled! and constitutional right; that, during the pendency of such appeal,, the injunction operates as if never dissolved, and that it is not his duty to proceed in execution of the writ in violation of the injunction.. Hence the relief sought by relators must be denied.

It is, therefore, ordered, that the alternative writ of mandamus herein-issued be set aside, and that relator’s application be denied at his cost»


author: Bermudez, C. J.

text:
    No. 9487.
    The State of Louisiana vs. Narcisse Joseph et al.
    An appeal in a criminal case made returnable “ according to law ” and which ought to be re^ turned at the place where the court holds sessions, will be dismissed, proprio motur when the transcript is filed at an improper time and place, where the court was not sitting.
    ■When such an appeal is granted and the transcript is certified in June, from Tberville parish, the transcript should have been filed either at Monroe, or Opelousas, at which; the court was holding sessions in that and the following month and not at blew Orleans-where it was not sitting. .
    The State as well as the accused has an interest in the speedy determination of criminacases.
    APPEAL from the Tweuty third District Court Parish of Iberville. Talbot, J.

      Alex. Hebert, District Attorney, for the State, Appellees.

      Olías. O. Lawve and David H. Barrow for Defendants and Appellees»
   The opinion of the Court was delivered by

Bermudez, C. J.

The accused were convicted of conspiracy to commit murder and sentenced to hard labor. They appealed.

Watson and Johnson have abandoned formally their appeal. That taken by Narcisse Joseph is the only one before us.

He was sentenced to five years, on the 15th of June last, and on the-same day moved for an appeal, which was instantly “granted returnable to the Supreme Court of the State of Louisiana according to law.'r

The transcript was immediately presented by the clerk, certified outlie following day, (16th) and filed in the clerk’s office, in this city, on the 29th of the same month.

The appeal allowed having been made returnable to this Court according to law, and the law requiring that appeal in all criminal cases be made returnable before this Court at its next term, wherever held, there to be tried by preference — the transcript of appeal, ready when it was, should have been filed, not in the clerk’s office at New "Orleans, where the court was not sitting, but if not at Monroe, at least at Opelousas, where the Court was holding sessions in June and July. Act 30 of 1878, Sec. 4, p. 56; Act No. 69, 1884, p. 92.

To allo-w appellants in such cases, to elect at their convenience, the place at which the transcript of appeal is to be filed, when the appeal is granted by the court, returnable “ according to late,” would be to nullify the law which requires appeals in criminal cases, to bo summarily returnable and tried, at the place at which the court sit when the appeal is taken, and practically to permit appellants to designate for themselves a return day, different from that fixed by law and to postpone, for an indefinite period, the speedy trial of cases in which .as well as the accused, the State has a deep interest.

This Court has settled, and it has become a rnle of practice, that an appeal returnable on appellant’s own motion and suggestion at a time and place other than those provided by law, will be dismissed by the court proprio motu. 27 Ann. 540; 32 Ann. 692, 542; 35 Ann. 980; Minor vs. Budd ante, p.- 36 Ann. 865, State vs. Jenkins.

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

'Todd, J., takes no part.

Rehearing refused.


author: Poché, J.

text:
    No. 9483.
    E. H. Samuels et al. vs. Isabella H. Brownlee et als.
    •Tlie appellant who presents a defective transcript, and who is shown to have had the transcript made through or under the exclusive supervision of his own counsel, outside of the clerk’s office, is legally responsible for all defects, omissions and irregularities therein, and is not entitled to any time to correct such errors or omissions. In such a case, appellee’s suggestion, without a formal motion to- dismiss, will prevail, and the appeal will be dismissed.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      B. H. Marr, John McBnerg and T. O. W. Bilis for Plaintiffs and Appellees.

      W. 8. Benedict contra.

   The opinion of the Court was delivered by

Poché, J.

In this suit, which is an action for partition between plaintiffs and defendants of certain immovable property, James Brownlee, the appellant herein, intervened for the purpose of being recognized as owner of one-fourtli of the property to be partitioned and to be entitled as such to that proportion of the proceeds of the sale.

In their brief filed on the day of trial in this Court and in their oral argument, counsel for appellees suggested that the transcript was in■complete, owiug to the absence therefrom of several important documents and pieces of evidence which were offered below and which are not to be found in the transcript.

An inspection of the record show's that their complaint is well ■founded, and that the transcript is not sufficient to apprise us of all the matters argued and contested below.

That conclusion seems to have been impressed on the mind of appellant’s counsel, for it appears from our minutes of that day that he submitted along with the merits of his case a motion for leave to complete iliis transcript.

That motion is the first matter for our consideration.

But w'e must at this time dispose of another matter which has doubtless arisen from a misapprehension in counsel’s mind of the true status •of the case.

We find in the record a motion for leave to complete the record, ■which reads as an order to that effect, rendered on 'the day of trial by this Court, and we find that acting doubtless on the authority of such .an order, appellant has prepared and has filed in the case a supplemental transcript, containing some of the documents which were found missing in the original transcript. Whereupon the whole case was handed in by our clerk on the 26th of December last past.

Appellant’s counsel has entirely misapprehended the nature of the relief which the Court undertook to grant to him on the day that the •cause was submitted.

In this connection our minutes read as follows :

“After hearing counsel and taking under advisement a motion of counsel for appellant to complete the transcript, the whole matter was submitted for consideration.”

It thus appears that the right urged by appellant to complete his avowedly defective transcript is yet under advisement, and to that ■question we shall now direct our attention.

Article 898 of the Code of Practice, which is the law of the case, provides as follows:

“If, at the time of argument, or before, the appellant perceives that the copy of the record is incomplete, either through mistakes or omis■sions, or from the clerk having failed to certify the copy as containing the testimony produced in the cause, or from any similar irregularities not arising from any act of the appellant, the court may grant him a reasonable time to correct'such errors or omissions, during which time-judgment on the appeal shall be suspended.” As stated above, we find that the evidence and the documents which had been omitted from the record were material to the issue presented in the case, and that' no correct or just conclusion could be reached in the premises without", due consideration of the same.

The next inquiry is to ascertain whether any of the omissions can be attributable to the act of appellant.

That information is furnished by the certificate of the clerk attached' to the transcript; the truth of which is not denied, bur on the contrary was admitted by appellant’s counsel in his oral argument.

Among others, the certificate contains the following statement:

"And I further certify that this transcript was made outside of this-office, and by the attorney for appellant.”

The full responsibility for the transcript is thus irrevocably fixed on the appellant himself, and under the textual provisions of the Code, as-uniformly understood and enforced by this Court, ho is not entitled to the indulgence which he now seeks to obtain.

The Court is supplied with an avowedly defective transcript, the-record shows that it was made by the appellant himself, through his attorney, the fault is therefore undi.sputably attributable to the appellant, and the legal penalty is the dismissal of the appeal. Torres vs. Falgoust, 35 Ann. 818; Hoover vs. York, 33 Ann. 652; Labat vs. Decuir, 33 Ann. 350; Cooley vs. Broad, 29 Ann. 72; Lanfear vs. Durand, 20 Ann. 161; Morton vs. Owners, 15 Ann. 708; Harris vs. Hayes, 8 Ann. 433; Jones vs. Neville, 9 Rob. 478; see also City vs. Cremonini, 35 Ann. 367.

It is therefore ordered that appellant’s motion for leave to complete the transcript in this case be denied, and that his appeal be hence dismissed at his costs.


author: Todd, J.

text:
    No. 9535.
    The State of Louisiana vs. John J. Weckerling.
    mallufa°turer of beer, or one charged as “ engaged in the business of a brewery,” is not exempt from license taxation under the State Constitution. The subject of such exemption is regulated by Art. 206 of the Constitution. Article 207 refers alone to a property tax.
    A brewer or manufacturer of beer is not one “engaged in d:stilling and rectifying alcoholic or malt liquors,” and is not therefore subject to the license tax provided by Section 9 of Act 4 of the Extra Session of 1881; but such license is governed and regulated by Section 3 of said act. Under that section, where the receipts are $30,000, and less than $40 000. such manufacturer is only liable to a license tax of ten dollars, instead of seventy-five dollars.
    APPEAL from the Second City Court, Parish of Orleans. VoorMes, J.

      John McJEnery and W. B. Sommerville for Plaintiff and Appellee.

      J. Q. A. Fellows for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant is appellant from a judgment which con■demns him to pay a license of seventy-five dollars, imposed under the provisions of Sec. 9, Act 4, of Extra Session of 1881, upon those engaged in “distilling and rectifying alcoholic or malt liquors.”

1-Iis contention is that he is exempt from the payment of a license by the State Constitution, and that the act imposing the license in question is unconstitutional, because violative of the exemptions' therein ■declared in favor of manufactures; and that in any event he, defendant, is not liable for a greater license than ten dollars, imposed by .section 3 of said act on the manufacturers of beer, he being such a manufacturer.

1. The first question to be determined is whether the defendant is liable to a license tax under the Constitution.

Article 206 of that instrument exempts from the payment of it, quoting: “Manufacturers, other than those of distilled, alcoholic or malt liquors, tobacco and cigars, and cotton seed oil.”

We have heretofore held that “the Constitution clearly exempts (from license tax) all manufacturers not excepted.” Ernst vs. City, 35 Ann. 746. It would be impossible to hold otherwise under the express terms of this article (206). Article 207 obviously applies exclusively to property taxation, and although its language is “there shall be exempt from taxation and license, * * * the capital, machinery and other property employed in certain designated manufactures,” it is clear that the exemption applies only'- to property and has nothing to do with license taxation on persons pursuing any trade, profession or calling. That subject was covered aud exhausted by Art. 206.

Hence defendant, as a manufacturer, is exempt from license taxation, unless he is within the'exception of Art. 206, as being a manufacturer ■of distilled, alcoholic or malt liquors. It is contended that the term •“distilled” applies to malt liquors as well as to alcoholic liquors, and that as beer is not a distilled malt liquor it is not subject to license taxation, It was obviously intended to exclude from the exemption manufacturers of malt liquors ns well as of distilled alcoholic liquors.. Such is the natural meaning of the words, independent of artificial' grammatical niceties. We thus construed it ourselves, when we. said in the Ernst case, “t-Jie excepted ones are those who manufacture alcoholic or malt liquors,” and we cite this not as a decision on the point, but as showing the plain meaning conveyed to our minds by the words, when not confused by grammatical refinements.

Hence we conclude that the defendant is liable to license taxation.

2. The next question is as to tho amount of the license tax he is subject to under the statute above referred to.

The first paragraph of sec. 3 of said act, which is under the caption of “ Manufactures,” provides:

“That for carrying on each business of manufacturing, not expressly exempted by Articles 206 and 207 of the Constitution, the license shall be based on gross annual receipts, as follows, viz: * * * *

“Twenty-third Class. When said receipts are thirty thousand dollars or more, and less than forty thousand dollars, the license shall he ten dollars.”

Thebusiness ofmanufacturingmaltliquors,which, as stated, includes-beer, is expressly excepted from the exemptions declared by that article, and therefore it would seem clear that the amount of license-due by the defendant as manufacturer of beer, under this section— granting his receipts to be under $40,000 — would he only ten dollars. There would be no doubt on this point but for the language of see. 9 of the statute, which provides, “that for carrying on the business of distilling and rectifying alcoholic or malt liquors,” the license to he paid where the receipts are $37,500 or more, and less than $50,000, shall he seventy-five dollars — which is the amount of the license sought, to he collected in this case.

Considering that the rule in tins case shows expressly by its language-that the, defendant is proceeded against and charged as carrying on a. “brewery,” which, as we construe it, is a manufacture oi beer, and-inasmuch as this last provision fixing the license at $75 is to be found under the head of “Miscellaneous,” and not under- that of “Manufactures,” which calls for the smaller license; anil considering, moreover, that the defendant is strictly a brewer, a manufacturer of beer, and cannot by any reasonable rule of construction be held to he engaged in “distilling and rectifying” alcoholic or malt liquors, we conclude that he is liable only for a license of ten dollars. He was adjudged to pay a license of seventy-five dollars, which was erroneous.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended by striking out the words “seventy-five” and! substituting therefor the word “ten,” and as thus amended it beaffiimed; appellee to pay costs of appeal.


author: Manning, J.

text:
    No. 9536.
    J. C. Denis, President New Orleans Cotton Press Association, vs. James D. Houston, State Tax Collector.
    A suit enjoining the collection of taxes in amount leas than two thousand dollars on the-ground that the property has "been sold at a prohate sale and the inscription of the taxes-has been erased and the lien and privilege for them has been transferred to the proceeds-of sale, is not within the jurisdiction of the Supreme Court-, and cannot he put within its jurisdiction hy a letter from the appellee’s attorney to the appellant’s attorney,'writ* ten after the appeal has been talcen and perfected, informing him that the taxes due are-really more than weie injoined and that they exceed two thousand dollars.
    If more taxes were due than were injoined there was no hindrance to the collection of the-excess over those injoined. *
    APPEAL from the Civil District Court, for the Parish of Orleans. Lamms, J.

      F. W. Huntington, Joseph P. Hornor and F. W. Halter for Plaintiff and Appellant:
    X. Municipal taxes not recorded, do nut affect real estate in the hands of a third person-26 Ann. 592; 30 Ann. 296; 28 Ann. 496; 25 Ann. 334; 30 Ann. 1365; 36 Ann. 765 ; Constitution, Art. 176.
    2.Even if properlv recorded the privilege against real estate is prescribed in three years ► Constitution, Art. 176.
    3.Municipal taxes are prescribed in ten years. 30 Ann. 3260.
    4.Taxes not assessed or recoided in the name of the true owner, do not affect real estate in the hands of third persons. 15 Ann. 35; 28 Ann, 537 ; 29 Ann. 509; 30 Ann. 176,
    5.Where property is sold under order of court in a succession to pay debts and all claims for taxes are by order uf court transferred to the proceeds of sale, the property passes to* the purchaser free from such taxes. 30 Ann. 1261; 33 Ann. 258 ; 23 Ann. 298.

      Blanc di; Butler for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

This is an injunction restraining the defendant fromi selling a square of ground in New Orleans for taxes.

The petition alleges ownership and that the collector has advertised the property for sale to enforce payment of taxes due. the State for 1876 amounting to $290, and City taxes for 1870 and 1877 amounting to $1,000. The ground of injunction is that the property was sold in 1878 at the succession-sale of Henry Passman, its then owner, and all liens and privileges were shortly thereafter cancelled on the mortgage books and among them, these tax inscriptions, and that the defendant must look to the proceeds of that sale for payment.

The answer is a general denial with an averment that the taxes set out in the plaintiff’s petition are legal, due and exigible, and concludes with a prayer for the dissolution of the injunction.

Obviously the sum involved is below our jurisdiction, and there is not such question of the legality or constitutionality of the tax as would attract our jurisdiction independent of the amount in controversy. Adler v. Bd. Assessors, 37 Ann. 507.

There was judgment for dissolution on May 14,1885, and an appeal was taken which was perfected by a bond executed and filed June 10.

Two days after, a letter was written by the defendant’s attorneys to those of the plaintiff which has found its way into the transcript and appears at the close of it. It is as follows :

New Orleans, June 12, 1885.

Brank W. Baker, Bsg.:

Dear Sir — Mr. Houston has just sent us a statement of amount due for State and City taxes on property described in petition filed in suit .J. C. Denis, President New Orleans Cotton Press Association vs. J. D.

Houston, tax collector, as follows:

State tax 1876 interest and costs to date....................$ 537 58

City tax 1870 “ “ .................... 2,676 85

$3,214 43

We therefore admit that the amount involved in said suit is upwards of three thousand dollars.

Very truly yours,

BLANC & BUTLER,

Atty. for J. D. Houston, tax col.

It is very clear that only $1,290 of taxes were injoined. If more were due there was no hindrance to the collection of the excess over that sum, and therefore such excess is not in controversy. There was nothing before the lower court altering or increasing the sum set out in the pleadings, and that sum cannot be increased to attract our jurisdiction by a letter written after judgment and appeal correcting an error made by the draftsman of the petition. The case belongs to the Circuit Court.

We must therefore dismiss the appeal and it is accordingly so ordered.


author: Eenner, J.

text:
    No. 9591.
    The State of Louisiana vs. Philogène Simmons.
    Alleged errors in rulings of the judge affirming the competency of jurors who were objected to by accused, have no weight when the jurors were peremptoiily challenged and did not serve on the jury, and when it does not appear that accused’s peremptory challenges were exhausted before the jury was empanneled.
    "Where it appears from the statement of the evidence attached to a bill of exception that the laws, touching which a charge was asked of the judge, had no application to the •case, he did not err in refusing the charge on the ground that it had no such application.
    APPEAL from the Twenty-first District Court, Parish of St. Martin. Gates, J.

      M. J. Ounningham, Attorney General, and O. H. Mouton, District Attorney, for the State, Appellee.

      Felix Voorhies and Mouton & Martin for Defendant and Appellant.
   The opinion of the Court was delivered by

Eenner, J.

The bills of exception taken to the ruling of the court touching the qualifications of jurors, may be summarily disposed of by the statement that the jurors referred to did not serve upon the jury, but were peremptorily challenged by accused, and that the record • does not show that the peremptory challenges allowed by law to the .accused were exhausted. This has been decided so often that it is no longer open to question.

There remain two bills of exception based on substantially the same .grounds, one to the denial of a motion for a new trial, the other to the refusal of the judge to give a chaige requested by counsel for accused.

We will consider the one affecting the new trial first.

The motion for new trial was based on the grounds substantially that the indictment charged the accused with larceny of a cow belonging to unknown, while the evidence showed that it belonged either to the parish of St. Martin by reason of forfeiture under the provisions of Act 236 of 1855, or to Césaire Delahoussaye by prescription acquired under Articles 3454 and 3509 of the Civil Code. Attached to the bill of exception is a statement of the evidence on the subject, from which it appears that neither of the laws cited had the slightest application to the facts. The Act of 1855 only applies to stray cattle “not owned by any citizen or resident of this State or owner and cultivator of a farm within the State.” The evidence does not suggest such non-resident ownership in the remotest manner; nor does it appear that the parish had ever claimed or enforced the forfeiture, as provided in the statute.

So far as Delahoussaye is concerned, the statement of the evidence,, as given by himself, conclusively shows that he does not claim to be-the owner, and advances no title whatever by prescription or otherwise.

The sole effect of the evidence is to establish conclusively that the-cow is the property of an 1umlcnown person, as charged in the indictment.

The court did not err in refusing the new trial.

What we have just said equally disposes of the exception to the refusal of the judge to give certain charges touching the laws above referred to. He refused on the ground that said laws “had nothing to-do with the cause on trial”; and he was clearly right.

Judgment affirmed.


text:
    No. 9566.
    The State of Louisiana vs. Samuel Cohn.
    An order of appeal in a criminal case, mailing an erroneous return both as to time and place, when suggested by appellant, is illegal and will not sustain the appeal.
    An appeal lodged by appellant at a place different from that designated in the order, cannot be considered by the Supreme Court, and on motion will be dismissed.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Burgess, J.

      M. J. Cunningham, Attorney General, JO. I>. Beale, District Attorney, for the State, Appellee.

      H. N. Sherburne for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

This appeal was taken on July 3, 1S85, and on motion of counsel for the accused it was made returnable to this Court, at Shreveport, on the second Monday of October, 1885. As this Court held a 'session at Opelousas, which begun on the first Monday of July, tlie appeal should have been made returnable at that place within ten days after the order granting the appeal. Act No. 30 of 1878, sec.. 4j Act No. 69 of 1884, sec. 4.

The erroneous return was made on appellant’s own suggestion, hence the error which is fatal to his appeal must be attributed to him. State vs. Jenkins, 36 Ann. 865.

But it appears further that the transcript was not filed in this Court,, at Shreveport, in compliance with the order of the district court, and that it was filed in this Court, at New Orleans, on the fourth of November, 1885.

This error is, if possible, still more palpable and fatal than the en-oneous order of return both as to time and place.

In the recent case of the State vs. Narcisse Joseph, not yet reported,, the order of appeal rendered in June made the appeal returnable according to law, and the transcript was filed in this Court, at New Orleans, within ten days, and we held that the appeal should have been lodged at Opelousas in order to comply with the law, and that it was a. fatal error to have selected another place for the return.

The irregularity in the instant case is yet more glaring, hence the motion of the Attorney General to dismiss this appeal must prevail.

It is therefore ordered that the appeal herein be dismissed.


author: Todd, J. Funner, J. Bermudez, C. J. Poché, J.

text:
    No. 9510.
    The State ex rel. E. Bauman et al. vs. Judge of Civil District Court for the Parish of Orleans, Division D.
    A mandamus properly lies to compel the city council to provide for the payment of an acknowledged claim against the city. If such mandamus is disobeyed, the judge issuing it can punish for contempt those guilty of the disobedience.
    In such case the process for contempt should not he directed against the entire city council1 hut against those only who have refused to obey the writ.
    Disobedience to a mandamus, ordering the city council to provide for the payment of a city debt, is shown by those members of the council who, after the debt is budgeted on the-report of the finance committee, vote against an ordinance for its payment.

      ^ PPLICATION for Certiorari and Prohibition.

      Walter II. Sogers, City Attorney, for the Relators.
   The opinion of the Court was delivered by

Todd, J.

On the Stli of June, 1885, Herman Newgass, a creditor of' tbo city of New Orleans, applied for and obtained a- peremptory mandamus against the city council and the members thereof to provide fertile payment of his claim.

Eight members of the council refused to obey the writ. The claim had been placed on the budget, and the finance committee bad reported an ordinance directing its payment, but the eight members above referred to, voted against the ordinance for its payment and by their vote defeated its passage, and at the same time signified their-disobedience of the order requiring provision to be made for its payment.

Thereupon under a rule taken, the members of the council, thus refusing obedience to the mandamus, were adjudged guilty of contempt by the judge who issued the writ, and were each sentenced to pay a fine of fifty dollars and to be imprisoned in the parish jail for ten days.

They complain of this action of the judge, and have applied to this •Court for writs of habeas corpus, certiorari and prohibition, under which they seek to have the sentence set aside and annulled.

It is almost needless to say that the writ of habeas corpus — being-only authorized in aid of the appellate jurisdiction of this Court — we cannot consider it, and must confine our attention to the other relief sought.

1. The relators first contend that the proceeding for contempt was wholly unauthorized in this case, and that the party aggrieved by the non-action of the relators in the premises, had his remedy under Art. -636 of the Code of Practice, providing- in certain cases for the enforcement of judgments by writs of distringas.

In our opinion, that article is wholly inapplicable to the matter in hand. It relates to judgments and decrees rendered in the ordinary •course of judicial proceedings, and not to peremptory'orders issued in summary proceedings requiring or prohibiting the performance of •some specific act,

The thing ordered to be done by the relators in this instance, was the performance of a purely ministerial duty imposed upon them by law, that is, to provide for the payment of a just claim against the city, •and already placed as such on the budget of city expenditures.

Under the, law and the peremptory terms of the mandate addressed to them by a judge clothed with full jurisdiction over the subject, they were vested with no discretion in the matter — their plain duty was to obey the law and the writ.

Courts would indeed be comparatively powerless, and the administration of the law and of justice utterly inefficient and worthless, if .judges possessed not the authority to enforce obedience to their legitimate orders by the process and means herein complained of.

2. The second contention of the relators is, that the process for con tempt should not have been levelled alone against the members refusing obedience to the mandamus, but directed against the city of New Orleans or all the members- of the council.

There is no force in this proposition. Dillon in his able work on Municipal Corporations, 2 vols, p. 876, in discussing the identical subject now before us says : “The writ, although directed to the corporation, is enforced through the members or officers whose duty it is to-obey its commands, and if part of the officers or members have done all within their power to comply with the writ, the court will punish only those who are actually guilty of disobedience; ” and this doctrine is placed beyond controversy by the decision of the Supreme Court of the United States in the case of Board Commissioners of Leavenworth vs. Sellew, 99 U. S. 623, 624. This decision is in accord with several others rendered by the State courts. 2 Metcalf, (Ky.) 156; 15 Wis. 37; 65 N. C. 114; 19 Wend. (N. Y.) 68; 13 Fla. 451.

It is, therefore, ordered, adjudged and decreed, that the restraining order heretofore rendered be set aside, and the application for the relief herein sought be dismissed at the costs of the relators.

Concurring Opinion.

Funner, J.

I rest my concurrence in this decree upon the absence-of any ground for the exercise of our supervisory jurisdiction.

This is not an appeal, and a proceeding for contempt is not appeal-able. Mere errors of law or fact afford no ground for the relief sought.. We have but three inquiries to make, which are :

1st. Was the order, for the disobedience of which the relators were arraigned, such as the court had the power to make It is not denied-that it was.

2d. Was the order of a kind such as to authorize proceedings for contempt for disobedience thereto ? Confessedly it was.

3d. Was the proceeding regular ? It is only in cases where the proceedings are absolutely null and void, such as in the examples given in the Code. “When the inferior judge has refused to hear the party or his witnesses, or has pronounced sentence without having cited-them to appear,” C. P. 857, that our supervisory jurisdiction can be invoked.

Improper joinder or non-joinder of parties, are n.ot defects of the character referred to in the Code. It is sufficient that relators had due aotice and hearing and had the opportunity of setting up this and all other legal defenses against the contempt alleged. If the judge has-heard and determined such defenses in due course of proceeding, mere-error in his decision does not justify our interferance.

Without suggesting that the course of the district judge was not perfectly proper in all respects, I rest my concurrence on the foregoing; grounds.

Dissenting Opinion.

Bermudez, C. J.

The complaint of the relators is that they were •committed for contempt by an incompetent court, without observance of the rule of proceedings in such cases.

It cannot be doubted that the court had jurisdiction to make peremptory the mandamus addressed to the council directing the budgetting, ■etc., of the claim of the complainant, and had authority to enfoi'ce obedience to its absolute mandate, in the mode provided by law.

The mandamus was directed to the board of councilman and to the members composing it. The failure of the members is the failure of the board. All the members should have met and should have complied with the order of court. No discretion was left them in the matter. For such failure, they are, as the component parts of the board, amenable for contempt as the board itself could be and would be, if it were a tangible or natural person.

The mandate not having been complied with by tlie board, all the members are delinquent and the aggrieved party lias no right to judge and determine which of those members are or not guilty of contravening the peremptory command.

The proceeding should be directed, not agaiust certain members singled out, but against each and all, in order that they respectively might show cause why they should not be punished for contempt.-

The councilmen who abstained from attendance may be as guilty as those who obstructed obedience, for it was their duty to be present and carry out the instructions of the court.

It is by their appearance on the rule for contempt and their defense, that the guilt or innocence of each and all is to be determined by the court.

If, in the course of the proceedings, it appear that some members -have done all in their power to comply with the judicial command, they must be exonerated; but, if on the other hand, it is established that other members whose concurrence was indispensable, have not .given it, either by acting in direct opposition or by omitting to act, the penalty attached to disobedience should be visited alike upon all who are recreant, for they were left no alternative. They are not -called upon to determine whether the thing ordered shall or not be •done ; but they are commanded to do it, unconditionally.

In the present instance, it appears that the concurrence of one more ■member would have carried out the order of the court.

If the relator in whose favor the mandamus was made peremptory, .had a right to leave out the members wlio did not appear at the meeting, he had an equal right to do the same as to seven of the councilmen who were brought to the bar for contempt.

Surely he could do neither without gross and crying injustice.

The proceeding against all the members guilty or not, is required by logic and is indispensable in the interest of public order, to prevent reprehensible discrimination.

While under the application for a prohibition, the question of jurisdiction has come up and been decided, under that for a certiorari, the proceeding by rule against certain of the members only, is submitted for consideration, that its validity in point of form may be ascertained.

Although the court had jurisdiction to make the mandamus peremptory and to enforce obedience to it, it was without authority to proceed ■ against a few ; but should have done so against the body represented by all the members, reserving its action to exonerate and to punish according as each member would or not purge himself by his conduct.

Dissenting Opinion.

Poché, J.

Eight members of the council of the city of New Orleans, in an application for relief by certiorari, complain that they have been illegally held for contempt for having voted a'nay” on a contemplated ordinance of the council, the passage of which had been ordered ■by the court through a peremptory writ of mandamus. Their complaint embraces two points of alleged error ; one of which is sufficient to entitle them to relief at the hands of this Court.

As the writ of mandamus had been directed to the city of New Orleans and the council thereof, the court was without power or legal authority to direct its process for contempt against eight individuals forming part of a council composed of thirty members.

The fact that eight negative votes were sufficient to defeat the passage of the ordinance shows conclusively that several members of the council were absent; for if all the members had been present and had voted, the result would have showed twenty-two affirmative votes, .and the ordinance would thus have been passed, and the relator in the mandamus case would have had no right to- complain. Under that ■state of the case, the court would have been powerless to proceed against the members who have cast negative votes. The purpose of its mandate would have been accomplished, and its power over the •subject-matter would have been exhausted.

Whence does the judiciary department derive its power to single out & few' comiionent parts of a legislative functionary, and to hold them in contempt for their votes'? Conceding the power of courts to punish a board of commissioners or a municipal council for disobedience of' the mandates of a competent tribunal, it is plain that the proceeding or mandamus cannot be directed to the i>ersous composing the board or council, but the process must be addressed to the body as a unit. Such was the course pursued in this case in reference to the mandamus.. But when the court was met with a disobedience of its mandate, the rule for contempt was not levelled at the disobedient body, the only defendant or respondent in the mandamus proceeding, but was taken against a component or fractional part of the body only. This was-manifestly error, and it involved the court in the exercise of a power not conferred by law and not inherent in the court.

This proposition is not met or answered by the argument that the error complained of is at most one of form. It involves a question of right, and puts at issue the assumed power of the court to proceed against individuals for acts of alleged disobedience of a body corporate.

Under a correct proceeding, the absent members might have been found as much in contempt as the members present who had voted in the negative on the contemplated ordinance; and the obedient members of the body, the true and only respondent, could easily have purged themselves of the alleged contempt of the authority of the court.

These views are supported not only by reason and logic, but by most respectable authority. State of Iowa ex rel. Rice vs. Smith, 19 Iowa, Reports, p. 334; Board of County Commissioners of Leavenworth Co. vs. Sellow, U. S. 624.

The absolute illegality of the process for contempt against the relators herein, is further demonstrated by the following consideration : the rule is settled that courts cannot take judicial cognizance of municipal ordinances, which must be alleged and proved in order to be judicially considered or enforced, a fortiori courts cannot take judicial notice of the particular votes cast in a council meeting by each individual member of the body. The manner of their voting can only be proved or considered in contradictory proceedings, and not ex parte.

Hence the process must of necessity issue against the whole body, as the only mode by which the individual members who have refused obedience to the mandamus, can be reached and properly dealt with.

In this very case the writ was directed against nine members and, on investigation, it was discovered that only eight had cast negative votes.

I therefore dissent from the opinion and decree of the majority.


text:
    No. 9586.
    The State ex rel. C. N. Roth vs. Judge of the District Court for Iberville.
    The dissolution of an injunction on bond is an exercise of the discretionary power vested expressly in the judge by the terms of the Code of Practice. When refused, a mandamus will not lie to compel a dissolution. The remedy is by appeal.
    Where partnership property has been sequestered by one of the partners to prevent elevas" tation and irreparable injury by the other partner, and the property remains in judicial custody, this other partner cannot have the sequestration set aside on bond under Art. 279 of the Code of Practice. He is not such defendant as is contemplated by that article. The sequestration is not of his property but of the property of the partnership in wnichi he has only an interest.
    A sequestration is indivisible so long as the property to he seized is undivided. The release on bond of one half of each piece of property would leave the other half of each piece in the sheriff’s hands, and as that officer could permit no interference with that the release would be a vain act.
    When acts oí preservation axe necessary to be done at once on sequestrated property and. the judge has issued an order for their performance, a writ of prohibition will not issue-commanding him not to execute that order. The judge’s first duty is to preserve property in judicial custody.
    A PPLICATION for Mandamus and Prohibition.

      David N. Barrow and Geo. L. Bright for the Relator.
   Tne opinion of the Court was delivered by

Manning, J.

The relator alleges that John E. Neely has filed a suit ■against him in the Iberville court for the settlement of an alleged planting partnership in which Neeley has obtained writs of injunction and sequestration, the first prohibiting the relator and the sheriff from removing or selling any part of the partnership property, and the last sequestering the whole of that property — that ho applied to the judge-to bond botli the injunction and the sequestration and was refused,, and hence applies for a mandamus to compel the judge to grant these orders.

He further alleges that in the course of these proceedings the judgelias ordered the sheriff to take off or use certain parts of the sequestered property, and that the relator applied for a suspensive appeal1 from that order and was refused, and hence he applies for a writ of prohibition to prevent the execution of that order.

The partnership is of the Upper Eirnea plantation, upon which cañéis cultivated, and these writs were issued in October, a time of the year when measures must he taken to manufacture the cane into sugar or the crop will he lost.

The’respondent judge justified his action in refusing to dissolve the injunction ou bond on the ground that it was au exercise of discretionary power vested in him in such cases, and the remedy was by appeal. This ruling was doubtless based on State ex rel. Morgan Railroad v. Judge, 36 Ann. 394, and antecedent cases, and its correctness does not seem to be questioned by the counsel for the relator.

But the counsel maintains that no such discretion is vested in the judge in setting aside sequestrations on bond, but that the relator’s right to that remedy is absolute.

The terms of the article would seem to favour that construction — a defendant against whom a mandate of sequestration has been obtained, except in cases of failure, may have the same set aside by executing his obligation, etc. Code Prac., Art. 279. But the respondent judge denies that the relator, strictly speaking, is a defendant within the meaning and intent of that article.

The suit of Neeley v. Roth was for the dissolution and settlement •of a planting partnership, and the sequestration was of the whole i>artnership property, embracing the crop and all the implements and appurtenances. It was undivided, was owned jointly by Neeley and Roth, .and each was half owner of every piece and part thereof. The sequestration was indivisible so long as the property was undivided. If Roth had been permitted to bond his moiety of each piece of the sequestered property, the other moiety must have remained in the sheriff’s hands, and that officer could not have permitted any interference with that, ¡so that setting aside the. sequestration of Roth’s moiety would have .been an idle act.

Besides, the sequestration was not of .Roth’s property but of the property of a partnership in which he had only an interest, and theiefore the judge was quite correct in sayiDg Roth was not such defendant as the Code of Practice contemplated in the article. The execution of the bond under that, article would not have entitled him to the x>ossession .of Neeley’s half of the partnership effects, so that to have granted the order demanded would have beeu to maintain the sequestration in part .and to set it aside in part in relation to each several piece of property. .And as granting the order would not have entitled Roth to the possession of the whole partnership property, the only alternative was to refuse it in its entirety.

Besides, and wc emphasize this feature, the ultimate object of this suit was to compel a judicial liquidation of the partnership. The appointment, of a receiver wasprayed, and thus the¡partnership effects were to be taken out of the hands of either partner and put directly in the control of an officer of tlie court. It does not appear that the property was in Roth’s sole possession, his partner Neeley being also on the premises.

Another consideration applicable to this case enforces this view. The petition for a sequestration charges Roth with acts of vandalism on the Upper Eimea plantation, among which are the wanton and malicious destruction of ornamental and shade trees, thus exhibiting a fixed and malicious purpose to irreparably injure his co-owner.

The object of the sequestration, or one of its objects, was to prevent ■this devastation, whereby not only particular pieces of property were •destroyed but the whole property was irretrievably deteriorated and its value as a whole was lessened. The sequestration was therefore an ■auxiliary writ to the injunction, and both were necessary to complete Neeley’s remedy. The refusal to dissolve the injunction on bond would have been useless to him if the sequestration had been set aside, and the judge saw that if he had refused the one order and granted the ■other he would have been holding to the applicant fruit that instantly •turned to bitter ashes.

The refusal of a suspensive appeal from the order directing the sheriff to take off the crop was simply a refusal to permit interference with •the custodian of the property in doing what was absolutely essential to its preservation. ‘

The time u’ithin which a crop of cane can be converted into sugar is ■short in our climate. The manufacture of sugar is subject to manifold interruptions and accidents, and is precarious under the most favourable circumstances. The whole of the cane crop on this plantation was in the legal custody of the sheriff in October, and the order to that •officer to do what must be done then or could not be done at all, was .simply a command to him to preserve what was perishable in the only way in which that particular perishable thing could be preserved. To have granted a suspensive appeal from such order would have paralyzed the authority of the sheriff, destroyed the property of the applicant for the writs and of the partnership and its creditors, and given over the whole subject of litigation to the caprice of the appellant. It was preeminently the duty of the court to require its executive officer to preserve the property in his custody, and which the court had required to stay in his custody when it refused to dissolve the one writ ■and set- aside the other on bond. The object of the writ of prohibition was to prevent the execution of an order that the court was bound to make and have executed.

The application for the writs is refused at the costs of the relator.


text:
    No. 9537.
    Mrs. Frances C. Moore vs. Junius Hart.
    This case involves questions of fact alone, and the conclusions of the judge ft quo are approved.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Thos. J. Semmes, W. B. Lancaster and J. J. O'Connor for Plaintiff' and Appellant.

      G. H. Lusenbery and JET. JH. CEpton for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff in her petition alleges that her son, Charles-Moore, died in this city on January 15, 1884, and that his succession was opened in the Civil District Court of this parish on January 17,. 1884. That her said son, on the day of his death, liad in his possession $0000 belonging to her, and which he held as her depositary ; that at the time of his death, said sum of $6000 was in the iron safe of her said son, set apart as a package, or in packages of National Bank notes or United States Treasury notes, and marked with her name as-the owner thereof; that said safe was in the office of her said son, which office was in the premises occupied by defendant, Junius Hart,, ou Canal near Rampart street in this city. That immediately after the death of her said son, and on the day that he died, the defendant,. Junius Hart, applied to her for the keys of said iron safe, where said money belonging to her was deposited, stating it was necessary to obtain the title papers of the grave lot which her deceased son owned,, in order that preparations for the burial of his remains might be made. That, induced by said representations, she delivered to said Hart the keys of said iron safe; two days afterwards said Hart returned the keys, stating that he had taken possession of said packages-of said money for her account, inasmuch as they were her property, And further avers in her petition that said Hart was aware of the fact-because of her son’s occupancy of the office aforesaid on the premises of said Hart, and from intimacy with her son, had obtained from him in his lifetime information as to the ownership of said money thus specially deposited and set apart as the property of plaintiff. She further alleges that said Hart refuses to deliver said sum of money toiler or recognize her ownership therein, and prays that said Iiart be condemned to deliver to her said packages of money, or in lieu thereof,, the sum of $6000, with interest from January 15, 1884, and costs.

Such are the material averments contained in plaintiff’s petition.

The answer of defendant is a general denial.

The law establishes, as applicable to human relations as well as in physics, a certain passive principle of vis inertiw, under which the existing status is permitted to persist unless overcome by some contrary force of superior power. The judiciary, when called upon to apply such contrary force, refuses to do so unless the grounds of law and fact upon which the interference is claimed be established with such reasonable clearness and certainty as to satisfy the judicial mind of the necessity of interfering.

This doctrine has been crystallized in the hackneyed and somewhat •exaggerated aphorism that “ the burden of proof is upon the plaintiff, and that to recover he must make his claim certain ; to make it only probable is not enough.”

It is obvious that where, as in this case, the plaintiff’s claim rests ■upon a charge of crime against the defendant, the principle above stated is reinforced by the powerful presumption of innocence and •thus demands the strictest application. To establish her claim, it was .absolutely necessary for plaintiff to prove two things, viz:

1. That, at her soil’s death, there was in the safe referred to a sum •of money belonging to her and not to her son.

2. That defendant unlawfully took possession of iaid money and refused to deliver it to her.

If the money, whatever its amount, remained the property of her •son, and if he was a mere debtor of the mother, in whatever amount plaintiff has no case. For the evidence is uucontradicted that the •son’s succession was regularly opened and administered; that an inventory was duly taken; that the heirs, including plaintiff, concurred in a notarial act of sale by which they sold to Junius Hart, with full subrogation, all their rights as heirs in and to said succession, he assuming all its liabilities; that before signing the act, plaintiff was distinctly asked whether she had any claim against the succession, had matters fully explained to her, was warned not to sign if she had •any such claims; and signed the acts.

Thus, under the facts of the case, as well as under the pleadings, •she has no standing in court as heir or as creditor of Charles Moore, but must stand or fall by her proof of ownership of the money claimed.

Now it appears that Charles Moore was a broker in public school ■teachers’ certificates, and that several years before his death he had received $1700 or $1800 of his mother’s money, which he employed in liis business and liad never repaid. Of course, lie was a mere debtor of bis mother for the amount.

What the terms of the loan were does not appear, but it is possible he considered that he would account to her for the profits made on it,, and that, in liis lucrative business, the sum might have swelled to $6000 at the time of his death.

It maybe that he did tell his mother, as she swears, before his death,, that he had $6000 belonging to her, and even offered to turn it over to her, and advised her to take it; but, if this be so and had she accepted this offer, the likelihood is that he would have handed her $6000-of the large amount of school certificates which were found in the safe at his death.

Upon this slender foundation, with feminine inexactness of comprehension in business affairs and haste to jump at conclusions, this good lady has, no doubt, honestly built up her belief that her son had told her that lie had in the safe six thousand dollars in bank notes put up-in a package and marked with her name, and thus set aside as her property.

If he had told her so, the insufficiency of such a statement as a basis-for such a claim against tlie defendant, would be apparent. But the reading of her own testimony does not establish that he ever made-such a statement in the distinct terms above mentioned.

None of the surrounding circumstances support the theory that her son had any such sum of money in the safe. He kept books in his-business and they exhibited no indication of it; and it is shown that he was, at the time, in need of money for his business.

It is needless to say that tlie allegatiou made in the petition that defendant had acknowledged having found and taken the package of money, is entirely unsupported by tlie evidence.

We conclude, therefore, that there is no proof that Charles Moore-left in his safe, at his death, $6000 or any sum of money placed in a package marked with her name and set apart as her property; and while ho may have told her that he had $6000 for her in his safe, her own testimony does not convince us that he made such statements with regard to its setting apait as would change tlie relation of debtor and creditor and transfer to her the property in such a sum. Her original statement of what he said conveyed no such idea and it was only on cross-examination that she strengthened and added to her first account.

This leaves no foundation for plaintiff’s case and dispenses us from tlie necessity of discussing the singular conflict of evidence touching-defendant’s obtention of the keys. Even if defendant did get the keys and has falsely denied the fact, while this might excite a suspicion of some sinister motive and conduct, it would, by no means, establish that he took $6000 belonging to plaintiff, when there is no proof that the safe contained anything belonging to her.

But the judge a quo, who heard aud saw the witnesses, evidently gave his belief to those of defendant, and we see no reason to differ from his conclusion.

Judgment affirmed.


text:
    No. 9534.
    Succession of Jacob Strauss.
    A testamentary disposition by which tlie testator bequeaths all his property to his grand children, on condition that the legacy should remain under the administration of histestaraontary executor until the legatees shall have reached the age of majority, does not create a fidei commissiim, and has not the character of a condition which is impossible or reprobated by law. Under such a disposition the executor is not made a legatee with instruction to preserve for and turn over the property to another person.
    A disposition whereby the testator bequeaths his whole property to his minor grand-children, on condition of their reaching the age of majority, but tbat in default thereof, the property shall pass to certain designated charitable institutions, is not amenable to the objection tbat it is a substitution as prohibited by the civil code.
    That feature of a will presents a double institution of heirs depending upon a suspensive condition, hut not a double testamentary disposition of the same property, first in favor of one person, and at his death to another person. In this case if the legacy ever vests in the grandchildren, it cannot never reach the asylums, under the effect of the will.
    Legatees, whether of age or under age, cannot accept a testamentary succession in part or on conditions different from those imposed by the testator.
    APPEAL from the Civil District Court for tlie Parish of Orleans, Houston, J.

      J. Q. A. Fellows and John Hassieh, Jr. for tlie Natural Tutor, Appellant :
    1. The will of Jacob Strauss contained the following clauses: “I give all I may die possessed of to my grandchildren, Charles E. S. Cass and Isabella A. Cass. The giving to them to be conditioned on their attaining the age of majority. In case either of them die before attaining tbe age of majority, then the part or portion given as above conditioned to accrue to the survivor likewise conditioned on such survivor attaining the age of majority. The true intent being to make my said grandchildren ray universal legatees upon condition tbat they reach majority. I desire that during tlie minority of my said grandchildren, the sum above given them conditionally he administered by my friend Judge E. D. White, of this city, without security. He to administer same for their benefit and pay over same to them on tbe happening of tbe conditions on which my gift is based. I expressly exact as a condition that none of the property be ever, in any way. during tbe minority, administered by their fattier. In the event of my said. grandchildren dying before reaching the age of majority, then Iinstitute as my universal legatee the Jewish Widows and Orphans Asylum, the Little Sisters of the Poor, etc., “share and share aliko.”
    Contended that the above will and its clauses is a prohibited substitution and fidei commissa, as such a nullity and must be considered as not written. And said will is further null because it divests the seizin given by law in favor of said minors, who are legal and forced heirs of their deceased grandfather’s estate. Said will further imposing an illegal condition on their legitime. “The giving to them being conditioned on their attaining majority.” Lev. Civil Code, Arts. 1519 and 1520 ; Lomat Civil Law, Cushing edd., vol. 2, Art. 3823; Laurent, vol. 14, sec. 402, p. 440, De la fiducie; Clague vs. Clague, 13 Lou., O. S., p. 1.
    “A disposition by will, in which the property of the estate is to remain in the hands of the executors, until the testator’s children or heirs arrive at the age of majority, cannot be distinguished from one that would authorize the executors to keep it and preserve .ic for and return the estate to them, which is a fidei commissa, or trust, and is forbidden by law.” Succession Foucher, 30 La. An,, p. 1017; Succession Cochrane, 29 An., p. 235; Succession Will. Steven, 36 An., p. 755.
    ■“Whenever the disposition is made in such terms as necessarily to comprehend a charge to keep for and transmit to a third person, it contains a substitution, although not litterally expressed. In every substitution or fidei commissa the agency of three persons is required, viz: the donor or testator, the person who receives ¡for a certain time and the one to whom is bound to transmit it. Farrarvs. Outcbon, 4Mar., FT. S. p.48; Arnaud vs. Torbe, 4 Lou., p. 502; Harper vs. Stanbrough. 2 Lou. An. p. 377.
    Oode Hapoleon, article 896, corresponding with article 1507 of our Lev. Civil Code, prohibits substitutions only, while our Code prohibits fidei commissa also. Any disposition mortis causa or inter vivos, by which a person is requested to preserve for and return a certain thing to another person is null, being & fidei commissa. the charge derendre appears to be the distinctive characteristic of the fidei commissa. The prohibition of the Code is so general that no particular class of fidei commissa is excepted from it. Lucloslange vs. Loss. 3 An., p.433; 5 Toullier, p.28, 30 An., pp. 1020, 1021: 1 Lob. p. 117.
    Those who lend their names to fidei commissa are viewed, in all cases, as spoliators, and so far from being bound to return the property placed in their hands to the incapable legatee, they contract no other obligation than to restore it to the heirs at law, with the fruits and interests accrued even before demand. “Badillo vs. Tio, 6 An.,p. 129 and 136, citing Lomat and other authorities.
    The nomination by the grandfather in his will of a tutor to his minor grandchildren legatees, (or an executor or special administrator to administer the legacy) to the prejudice of their survjviag father and mother, is illegal and the disposition null and mast be reputed as not written: 10 La.A-n , p. 169, Hoggatt vs. Moraucy; Succession Foucher, 30 An., pp. 1020-1 ; Laurent,-sec. 403, pp. ¿41, 442; Lev. Civil Code, 250, 253, 256, 257; 13 La., 1; 10 An., p. 169, and 12 An., p 767. ’ '
    When the testament of a grandfather, in favor of-his minor grandchildren, is a ftdei commissa or substitution and null as such, the grandchildren being legal heirs ad intestatio (no one having a greater right) are entitled not only to their legitime but to the grandfather’s entire estate, the same to be at once delivered over to their father, their natural tutor, to he administered for their benefit as above shown. Lev. Civil Code, articles 886, 887, 940 and 941; Chabot des Successions, vol. 1, pp. 52 and 53; Marcad é Code Civil, vol. 3, p. 33; Logron Code Civil, p. 150, art. 724; 15 An., Perin vs. McMicken, p. 158.
    The legitime goes to the forced heirs by operation of law, unaffected by any restrictions, modifications or conditions imposed by the ancestor, and dispositions imposing such restrictions modifications or conditions must he reputed as not written. Lev Civil Code, articles 1710,1493 to 1501 and 1687; Rogron C. Civil, art. 915, p. 192; Laurent, vol. 12 pp. 197-199, sec. 149; Demolomb6 des Donations, vol. 2, p. 38; Merlin Question, Yerbo Legitime, vol. 17, p. 150, sec. 7; 13 Lou., O. S., p. 9, and Succession of John Turned, 32 La., p. 1218; 3 Mar. 485.

      Nicltolls <& Carroll for the Executor, Appellee.
   'The opinion of the Court was delivered by

Poché, J.

The controversy presented by the pleadings in this case involves the question of the validity of the olographic will of the late Jacob Strauss, which is of the following tenor:

This is my last will and testament, entirely written, dated and signed by me, New Orleans, September 20, 1882:

“I give all I may die possessed of to my two grandchildren, Charles Edward Stanislaus Cass and Isabella Amanda Cass, the children of my deceased daughter, Marie Louise Cass. The giving to them to be conditioned on their attaining the age of majority. In case either of them die before attaining the age of majority, then the part or portion given as above conditioned to accrue to the survivor, likewise conditioned on such survivor attaining the age of majority. The true intent being to make my said grandchildren my universal legatees upon the condition that they reach majority. I desire that during the minority of my said grandchildren, the sum above given them conditionally be administered by my friend, Judge E. D. White, of this city— without security — he to invest said amount in good securities and apply the proceeds to the education and support of said grandchildren. He is to administer the same for the benefit of said grandchildren, and pay over the same to them on the happening of the conditions on which my gift to them is based. I expressly exact as a condition that none of the property given by me to my grandchildren be ever, in any way, during their minority, administered by their father. In the ■event of my said grandchildren dying before the happening of the condition by me above mentioned — that is, they or either of them reaching the age of majority, then I institute as my universal legatee the Touro Infirmary, the Jewish Widows and Orphans’ Asylum, the Little Sisters of the Poor, the St. Mary’s Catholic Orphan Asylum— share and share alike to each of said institutions. I institute and appoint Judge E.-D. White my testamentary executor, with seizin and without security. This entirely written, dated and signed by me at New Orleans, this 20th September, 1882.”

J. Strauss.

The nullity of the will is propounded by C. L. C. Cass, the father .and natural tutor of the two grandchildren of the deceased appellant .herein on substantially the following grounds:

L That the will contains a fidei eommissum and a substitution, which are both prohibited by our laws.

2. That it divests the minors of the seizin of one-third of their grandfather’s estate, to which they are entitled under the law as forced’ heirs.

I.

The charge of a. fidei eommissum refers to that disposition in the will which subjects the property of the testator to the administration of' the testamentary executor until the minors’ legatee shall have reached' the age of majority.

Under the provisions of our code, a fidei eommissum is understood to be “ a disposition by which the donee, the heir, or legatee is charged to preserve for or to return a thing to a third person.” C. C. 1520.

Now under the terms of this will, the executor is neither a donee/t. an heir or a legatee. No part of the property of the testator is bequeathed to him, to be preserved for or turned over to another person or succeeding legatee, and it is clear that no right of ownership, either1 in trust or otherwise, is intended to be vested in him. The only power or right with which he is clothed by the will is one of administration,, and under the circumstances it partakes more of the character of an1 onerous duty than of an enviable right. The practical effect of that feature of the will is to vest the usufruct or right of enjoyment of the testator’s estate in his grandchildren, subject to the executor’s administration, until they shall have reached the age of majority, and’ bequeath to them the naked ownership of the same at the time that they shall reach that age. C. C. art 1522.

Such a disposition is not amenable to the reprobation of our law.

The identical question came up and was exhaustively considered by our immediate predecessors in the case of the succession of Macias, 31 Ann. 127. That precise condition was found in the will of Mrs. Macias, and the court held that it was not impossible or reprobated by law. We therefore hold that the will of Jacob Strauss, is not invalidated by reason of that condition.

But it is charged that the disposition by which the testator bequeaths the whole of his property to one of his grandchildren in case of the-death of the other before the latter reaches the age of majority, and’ by which he directs that his propertv shall pass in equal shares to four designated charitable institutions, in case both of the minors should die before they have reached their respective ages of majority, contains a forbidden substitution.

As we have already shown, it appears from a consideration of the will, that it bequeaths no part of the testator’s property in full ownership to his grandchildren before they reach the age of majority.

If that condition does not happen, the property of the testator passes-at once and in full ownership to the designated asylums. But in case that both minors, or one of them, shall reach the age of majority, the-condition under which the asylums could become legatees under the will does not happen, and from that moment their connection with the-will is forever severed.

The testator does not pretend to make two testamentary dispositions of the same property, by making it descend as a legacy to one person, and at the death of that legatee, to pass it to a subsequent legatee, independently of the will power of the first legatee, or of the existence of forced heirs to his succession.

It follows therefore that that feature of the will cannot be assimilated to the prohibited substitution referred to in our code.

These views have always prevailed in the jurisprudence of France,, from whose code we have derived the provision of our own code on this subject. Code Civil, art 896; Marcadé, vol. 3, p. 364 et seq.

The Court of Cassation and other French tribunals have uniformly and correctly ruled that a double institution of heirs, depending upon a suspensive condition, which is the case with the will in hand, does-not present the features of a prohibited substitution Its essential characteristic is that both of the instituted heirs should in turn, and under the effect of the will, become the absolute owners of the property, or that one should succeed the other as legatee of the saíne thing,, under the expressed will and directions of the testator. Journal du Palais, 1885, p. 520, Gildan vs. Phillippon.

II.

We shall now consider the objection to the will on the ground tnatit imposes illegal conditions on the legitimate portion of the forced heirs. At the threshold of that inquiry we are confronted with the following provisions 0f our code:

Article 986: “He who has the power of accepting the entire succession c-annot divide and only accept a part.”

Article 1016: “A succession can neither be' accepted nor rejected conditionally.”

It is conceded that the testator’s grandchildren have no forced legal claim to more than one-third of his estate, and that he had the perfect, legal option to dispose by will of the remaining two-thirds of his estate to another or different person. Hence in the case of a will by their grandfather, they had no absolute legal right to that portion of his estate.

It is equally clear that ho could legally impose any condition; provided it was not impossible or reprobated by law on any person whom he selected as the object of his bounty for that proportion of his estate.

Now in commenting on these provisions of law, which apply as well to testamentary as to intestate successions, (C. C. 975) this Court used the following language in the Succession of Macias :

“A conditional legacy — when the conditions imposed by the testator are neither impossible nor reprobated by law — must and can be accepted by or for the legatee but in accordance with the terms of the will. Whether of age or under age, the legatee cannot be allowed to divide his acceptance to take the donation and repudiate the conditions on which it was made, or take it on conditions which differ from those fixed by the donor. lie must accept it as it is or reject it.”

Following in the same train of thought on the same subject, the present court, in the succession of Turnell, 32 Ann. 1218, said :

“We think it clear, ou both reason and authority, that where the will bequeaths to the forced heir more than his legitimate portion, the testator may attach to the bequest any lawful conditions, and in such case the forcod heir must exercise the option of either accepting the bequest as a whole, with the conditions attached, or of renouncing all testamentary advantage and claiming his legitime only as secured to him by the law independent of the testament,”

Having shown hereinabove that the conditions attached to his bequest by Strauss were neither impossible or reprobated by law, it follows that the will must either be accepted in whole or renounced entirely. The conditions imposed by the testator were not intended and must not be coustrued as imposed on the legitimate portion of his forced heirs, but for the balance of the estate which he would doubtless have disposed of to the exclusion of his grandchildren, had he for a moment supposed that they could have obtained it independently of his will and of the conditions which he attached thereto.

If these, grandchildren were of age and were in court in their own right they could not claim one portion of the estate as forced heirs, and the remainder as beneficiaries under the will. The law would compel them to elect whether they would as forced heirs take their legitime without conditions, or accept the whole estate under the conditions imposed by the testator. But their tutor, who now acts in their behalf, has no authority to exercise that option, the law elects for them to accept the most advantageous position in their behalf.

Hence we have no other alternative but to enforce the execution of' the will as a whole and all in its parts. These were the conclusions reached by the district judge, his decree must therefore be sustained-

judgment affirmed.


text:
    No. 9580.
    The State of Louisiana vs. Adolphe Fontenette.
    Whom the blank for the year in an indictment is unfilled, the State may amend by inserting-the proper year even after the evidence has closed.
    In charging the crime of an assault with intent to commit a rape, it is not duplex pleading to charge a battery as well as an assault. The assault is a component part of the ciime. an ingredient of it, and the battery is only an aggravation of the assault, both being the acts of the accused while endeavoring to carry out his intent to commit the more-heinous crime.
    A PPEAL from the Twenty-fifth District Court, Parish of Lafayette. DeJBaillon, J.

      M. J. Cunningham, Attorney General, and Tí. C. timedes, District Attorney, for the State, Appellee.

      Mouton & Martin for Defendant and Appellant.
   The opinion of tlio Court was delivered by

Manning, J.

The defendant was convicted of an assault with intent to commit a rape and was sentenced to twenty-tliree months’ confinement at hard labour.

After the evidence was closed the District Attorney moved to amend the indictment by inserting the year 1884 in the blank, thus conforming the indictment to the proof,'to which the defendant reserved a bill.

Among the many beneficial amendments of criminal practice made by our statutes is that which enacts that no indictment for any of-fence shall be held insufficient for omitting to state the time at which the offence was committed unless time he of its essence, nor for stating-the time imperfectly or on a day subsequent to the date of the indictment or an impossible day. Rev. Stats, sec. 1063. And when objection is made to any defect in the indictment apparent on its face the court is autorized to amend it forthwith. Ibid. sec. 1064.

The provisions amply justify the amendment complained of. State v. Williams, 31 Ann. 146; State v. Johnson, 35 Ann. 842.

The motion in arrest is for duplicity in that two separate and distinct offences are charged in one count. The charge is that the defen■dant “violently, maliciously and feloniously did make an assault upon the person of one Althea Dubois with the intention her, the said Althea Dubois, then and there violently, maliciously and against her will, to ravish aud carnally to know, and further that said Fouteuette, her, the -said Althea Dubois, then and there did beat aud illtreat aud other wrong to her did, contrary, etc.”

The defendant’s contention is that with the more serious charge there is coupled another of assault and batteiy.

The objection is not well taken. Our statute is very succinct — whoever shall assault another * * with intent to commit rape shall, etc. Rev. Stats, sec. 792. The crime has to be construed according to the common-law and we look to the common-law for the form of the indictment unless our own statutes have otherwise ordered. Rev. Stats, sec. 976. The common-law form usually charges the assault with the addendum of “beat and ill-treat” before the charge of rape aud is the better way, 1 Archbold Cr. Pr. and Pl. 1011, though it is sometimes charged as in this indictment. Wharton’s Precedents, 127-8.

The crime charged is not committing a rape, which is a distinct of-fence punishable with death. Rev. Stats, sec. 787. It is an assault with intent to commit the more heinous crime and the assault must therefore be charged. Even if a battery be charged as well as an assault, as was done in this indictment, it is not bad for duplicity because ■the battery is part of the assault. I.t is the act or one of the acts of -the accused done at the moment he was endeavoring to carry out his .intent to commit the rape.

Judgment affirmed.


text:
    No 9514.
    John Taylor vs. Bertrand Saloy.
    ‘Where, at the moment when the debtor acquired an immovable, there stood i ecorded against him in the parish a judgment, the judicial mortgage resulting from such record attached to the property eo instanti with the ownership, and he could not acquire a homestead in said property to the prejudice of such mortgage.
    'The jurisprudence is constantand uniform that privileges, mortgages and real rights attaching to property cannot be disturbed or affected by homestead rights which did not exist at the moment when they attached.
    "The rule covers judicial as well as conventional mortgages.
    A PPEAL from the Twenty-fourth District Court, Parish of Plaque- : \. mines. Monroe, judge ad hoc.

      James Willdnson for Plaintiff and Appellee:
    •Act 52 of 1865 (B. S. sec. 1691) created homestead exemptions in Louisiana.
    -Articles 219, 220, of the Constitution of 1879, did not repeal, but extended the provisions of this law. 34 Ann. 339. Neither has, nor can, the Legislature modify said law regulating rights to homesteads existing before the adoption of the Constitution, or enlarge the remedy on judgments arising from debts contracted prior to that time. Art. 220, Const. 1879. The right to the homestead is a matter of public policy, not susceptible of conventional waiver or of mortgage. Art, 222. The Act of 1865 was read into defendant’s judgment. 37 Ann. 17.
    • One owing a judgment rendered in 1876 and recorded in 1877, may acquire a homestead in 1881, unincumbered by mortgage, and as against such judgment debt no registry of the homestead is necessary, 35 Ann. p. 927, and authorities there cited.
    Even if registry be necessary to protect plaintiff’s homestead as against judgments rendered prior to the Constitution of 1879 and Act 114 of 1880, registry herein was made within a reasonable time, and before any intervening rights had accrued. 34 Ann. 337.

      B. T. Beauregard for Defendant and Appellant:
    Under the homestead provisions of the Constitution of 1879, the exemptions therein provided take effect only from the date of registry, and are inoperative against debts contracted and judicially recognized prior to such registry. 34 Ann. 10L3; 35 Ann. 929.
    Hence, a judgment obtained and recorded in 1877, foundod on an indebtedness existing in 1876, is executory against property acquired by the judgment debtor m 1881, the homestead as to which was declared only six months after his acquisition of same. The judgment debtor is not then shielded by the Homestead Act of 1865, nor the established jurisprudence, which does not embrace tbe case at bar. 32 Aim. 805, 979 ; 33 Ann. 240, 320; 34 Ann. 331; 37 Ann. 162, 263.
    For, in the interval between the judgment debtor’s acquisition of property in 1881 and his declaration of homestead relating thereto six months after such acquisition, the judgment creditor’s judicial mortgage extends and attaches to said property, and cannot he defeated by such ex post facto homestead declaration. R. C. C. 3328; 35 Ann. 829; R. C. G. 1338; 21 Anil. 253; 32 Ann. 983.
    On the dissolution of an injunction staying execution of a money judgment, damages are allowable, less the credit, on the amount due. 27 Ann. 173; 15 Ann. 70; C. P. 304 ; 32 Ann. 974, 773, 718.
   The opinion of the Court was delivered by

Fenner, J.

This case is submitted upon au agreed statement of facts aud ou questions of law arising thereupon, which are also formulated in the agreement.

The facts are briefly as follows:

Saloy is the holder of a judgment against Taylor, rendered and recorded in 1877.

Taylor inherited certain real estate from Julia Lampton, who died in May, 1881, and was recognized and put in possession thereof by order of court in July, 1881.

He has a wife and eight children, and has occupied the property as a home since March, 1881.

He declared and registered the property as a homestead in December, 1881.

In 1885, Saloy caused execution to issue on his judgment and seized the property; whereupon Taylor filed this suit for an injunction, ou tiie ground that the property was exemptfrom seizure as his homestead.

The first question of law submitted is: “Whether the execution of a. judgment rendered and recorded in 1877, and the homestead exemption asserted against seizure and sale in 1885, is to be tested by the provisions of the Homestead Act of 1865, which was in force at the time when the judgment was rendered V1

This question has already been considered in the case of Gerson vs. Gayle, 34 Ann. 337, which was a case where the property claimed as-homestead was acquired after the adoption of the Constitution of 1879,: and the debt under which it was seized arose prior thereto. We then-construed the clause of the Constitution declaring that “rights to homesteads or exemptions under laws or contracts, or for debts existing at the time of the adoption of this Constitution, shall not be impaired,, repealed or affected by any provisions of this Constitution or any laws passed in pursuance thereof,” and we held that “the right to avail of the provisions of the Act of I860, in our opinion, continued under this clause, and was only affected as to the manner in which it could be claimed or asserted when the Legislature, in obedience to the constitutional mandate, enacted tire necessary laws as to its registration,” etc..

We thus intimated the opinion that homesteads, acquired after the adoption of the legislation directed by the Constitution with reference to their setting apart and registry, must conform to the requirements, of such legislation in order to be effective even against debts originating prior to the Constitution.

But-, in this case, the question as to whether the Act of 1865 or the Constitution of 1879 governs, is of no practical importance.

Conceding that the former act controls, we have twice very distinctly decided that a homestead under it cannot be acquired in property to which a mortgage had attached prior to the acquisition of the homestead.

In one case, the debtor owned and mortgaged the undivided three-fourths of an immovable which, by reason of the indivisión, -was not subject to the homestead claim.. He subsequently acquired the remaining fourth and then claimed the homestead, which we denied, on the ground that the mortgage having attached at a- time when the homestead right did not exist, it could not be affected by subsequent facts. Bramim vs. Womble, 32 Ann. 805.

In the other case, the debtor had .granted a mortgage on property on which he did not at the time reside. He subsequently established his home, on the property and set up ins homestead right against the mortgage, and we held that as the property had come under the mortgage free from any homestead right, the debtor could not impair the effect of tlie mortgage by subsequently moving on the property and claiming: an ex post facto homestead. Gilmer vs. O’Neal, 32 Ann. 983.

Both of these decisions interpreted the Act of 1865.

The jurisprudence of this Court, as organized under the Constitution! of 1868, bad given effect to homestead lights under the Act of 1865 as-against previously existing debts and even judgments, when not secured by privileges or mortgages antedating the homestead. Robert vs. Coco, 25 Ann. 199; Doughty vs. Sheriff, 27 Ann. 355.

But, in both the cases, it will be observed that the judgments, as-against which the subsequently acquired homestead right was allowed, had not been recorded and, therefore, were not secured by judicial mortgage on the property. The Court distinctly stated that anterior privileges, mortgages or real rights could not be affected.

So, in the case of Gerson vs. Gayle, 34 Ann. 337, although the record, of the judgment antedated the registry of the homestead, yet the property was acquired and the homestead existed before the judgment bad-been recorded, and thus took effect before any judicial mortgage had attached.

We discover no reason to make a distinction between a judicial and' a conventional mortgage. The principle is constant and universal' that privileges, mortgages and real rights which have attached to property free from homestead right at the time, cannot be affected by any such right thereafter arising.

Now, in the instant case, the judgment of plaintiff stood of record in the parish where the immovable in controversy was situated, prior to< and at the moment when plaintiff acquired the ownership thereof; and: the judicial mortgage resulting therefrom attached at the very instant of ownership. Hence, as the homestead right could only arise in property owned by the debtor, and as the ownership carried with it the-attendant mortgage, the latter could not be divested or affected by the homestead.

This disposes of the second question of law submitted, viz:

“Where a judgment rendered prior to the Constitution of 1879 has: been duly recorded against the debtor, can said debtor acquire and occupy an unencumbered homestead subsequent to the passage of said constitutional and legal provisions in 1879 and 1880, upon recording his declaration of homestead before the seizure of said property, or within a reasonable time thereafter!”

We have no hesitation in saying that a homestead cannot be acquired-in an immovable which, at the moment of its acquisition by the debtor, ■became subject to a judicial mortgage resulting from the record of a prior judgment, to the prejudice, at least, of such judicial mortgage.

Tlie third question, “Was the declaration of homestead made within a reasonable time in the present case?” thus loses all importance and need not be considered.

Our interpretation of the agreement is that the parties are in accord ■as to the credits 'which are to be placed on the jft. fa., aud that the homestead exemption is the only question submitted to us. Should we be in error on this point, our decree may be corrected on proper .showing.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed; and it is now adjudged and decreed that there be judgment in favor of defendant dissolving the injunction issued herein, and rejecting plaintiff’s demand at the latter’s cost in both courts.