author: Breaux, J. Breaux, J.

text:
    No. 1297.
    Charles H. Ross vs. L. Enaut et al.
    On Motion to Dismiss the Appeal.
    This case is within the jurisdiction of this court, being a suit against different persons who are interested in maintaining the title to a tract of land. A decree of nullity would affect the title of each. They are, therefore, interested alike without regard to the extent of their respective claims.

      On the Merits.
    A mortgage was flue to tlie “Consolidated Association of the Planters of Louisiana.”
    The tutrix sued out an injunction against the foreclosure of the mortgage. The issues raised were decided against her. She had the right to stand in judgment. Her wards are concluded by the judgment, and at their majority are without right to reopen questions finally settled.

      Status reipublicce máxime judicatis rebus coniinelur.

    Informalities of a sale are cured by the prescription of five years.
    On Application eor a Rehearing.
    Proof establishing that plaintiff was divested of his title, subsequent to the sale of his property by another, whose right to- sell he disputed, having been admitted without objection, he can not recover the property, to which he no longer has title.
    The value of the land involved, the revenues and the improvements 'to be partitioned in case of judgment for plaintiff, enter into consideration in determining jurisdiction.

      Newton, J., ad hoc. PPEAL from the Fifth District Court, Parish of Ouachita.

      Ounby & Sholars for Plaintiff and Appellee.

      Boatner & Lamkin and Potts & Hudson for Defendants and Appellants.
   The opinion of the court was delivered by

Breaux, J.

The action was instituted to recover one-fourth interest in a square of land in the city of Monroe. The late James Hart bequeathed this square to the plaintiff, his mother and his two sisters.

Plaintiff alleges that on the 20th of January, 1881, his mother individually sold to Annie E. Livingston a part of the square; that on the 5th day of February, 1893, the sheriff sold the remainder of the land to the Consolidated Association of the Planters of Louisiana” under an order of seizure and sale issued on a pre - tended twelve months’ bond, executed by his mother in the suit of the Consolidated Association et al. vs. James W. Mason et al., filed November 23, 1870, to enforce a mortgage against the entire property left by James Hart, which proceedings were enjoined by Ben Hart and J. W. Locke, executors of James Hart; that on the 17th June,-1876, by way of compromise, the executors and his mother as principals executed this pretended twelve months’ bond in favor of the “Consolidated Association of the Planters.” That there was no advertisement and no adjudication of the property and the bond was a conventional agreement on which process of law could not issue so as to bind third persons. That on 30th April, 1881, the “ Consolidated Association ” caused an order of seizure and sale to issue as if it had been a twelve months’ bond with vendor’s lien, under which the sheriff seized the property and finally sold it to that association on February 5, 1883; and that subsequently the association sold the land to Richard Sinnott.

The defendants interposed peremptory exception of res judicata and estoppel, in which they allege that the questions and issues raised had been decided in the suit of p aintiff acting through his tutrix and legal representative in the suit No. 800 of the docket of the District Court of Ouachita parish, and in other suits instituted before that court.

This exception was referred to the merits.

In their answers they set forth their grounds of defence and especially plead that the action to annul the sale in contest is barred by the prescription of five years.

The facts are that on the 17th day of April, 1830, the “Consolidated Association of the Planters ” secured a 1 an by mortgage on a tract of land adjacent to Monroe containing the pact de non alienando.

In course of time it became the property of Dr. John Calderwood, who sold to James Hart, subject to the mortgage.

The “ Consolidated Association ” brought suit against the original mortgagor and against James Hart, the possessor, to enforce the mortgage.

This defendant, Hart, filed a peremptory exception in that suit on the following grounds:

That the land was not accurately described; that the mortgage was in the French language and therefore not the notice required.

Hart having died, his executors were made parties to the suit and contradictorily with them a judgment was obtained for the sum due, and recognizing the mortgage. The judgment was affirmed on appeal.

In execution of this judgment the property was seized. It failed to. sell for cash and was readvertised for sale on twelve- months’ credit.

When about Co be sold the sale was enjoined by the executors of James Hart’s estate and by Mrs. Bracey, the tutrix of plaintiff.

The injunction was dissolved. The evidence that a sale followed the dissolution of an injunction consists principally of recitals on a twelve months’ bond given by these parties for the price.

After the statement in the bond that the price is one'thousand eight hundred and ninety-six dollars and ninety-seven cents, with legal interest, it is declared that the purchasers were the last and highest bidders of the property mortgaged, and that the property was seized to satisfy an execution issued in the suit entitled the “ Consolidated Association of the Planters” vs. J. W. Mason et al., No. 800, “ which, after complying with all the forms of law, was, on the 17th day of June, 1874, offered for sale on a credit of twelve months and adjudicated to said Locke and Hart, executors, and Louisa C. Bracey, wife of S. L. Bracey.” This bond is dated the 17th day of June, 1876. This property was seized.

The sale was enjoined by plaintiff’s mother and tutrix, who alleged in her petition for the injunction that personally and as tutrix, she owned the property under the terms of the will of the late James Hart.

That the bond was not a twelve months’ bond, but a mere conventional agreement. That preceding the execution of the bond no sale had been made.

The sheriff and the bank answered. After trial judgment was pronounced for the latter. Prom the judgment, plaintiff having appealed, this court decided “that a party signing a twelve months’ bond is not permitted when execution issues thereon, under Article 720, C. P., to arrest the writ, on the ground that there was no seizure, advertisement and sale of the property in the case in which the bond was furnished, the bond reciting that all the requirements of the law had been complied with. By signing the bond such party has cured all the irregularities, if any existed,” citing authorities. Mrs. Louisa Bracey and Husband vs. S. E. McGuire, Sheriff, et al., 34 An. 997.

The property, on the 3d day of February, 1883, offered for sale under the bond, was adjudicated to the “Consolidated Association” in satisfaction of its mortgage, and possession was taken by the purchaser. In February, 1883, Mrs. Bracey, individually and as tutrix of plaintiff, sued the warrantor of her title and obtained judgment against her for five thousand dollars.

She alleged that she had been evicted from the property. A compromise was effected between plaintiff in the case and her warrantor; the latter paid two thousand dollars, and the judgment obtained by the plaintiff against the warrantor was transferred in acordanee with the terms of the compromise.

The plaintiff in this case denies the signature to a letter of transfer of this judgment, purporting to be his.

Motion to Dismiss the Appeal.

The square involved in this suit has been divided into lots belonging at this time to separate owners.

As to two of the defendants, plaintiff and appellee moves to dismiss the appeal on the ground that the amount in dispute as to them does not exceed two thousand dollars.

Each of these defendants traces his title to one author and is interested in maintaining the sale attacked by the plaintiff. If nullity be decreed it will have the effect of absolutely destroying each title. The validity of the mesne conveyances under which each holds is not at all at issue. All interest centres in the deeds assailed. The value of the property involved determines the jurisdiction of the court. That property involved in this case in which each of the defendants is interested in maintaining the title is of a value within this court’s jurisdiction. A similar question was determined in Derbes vs. Romero, 28 An. 645. Multifariousness of suits is to be avoided if consistent with reasonable interpretation of the laws conferring jurisdiction.

FORECLOSURE OF MORTGAGE.

The plaintiff and his co-legatees received the property burdened with a mortgage. In the first suit filed to foreclose, the testator was the party defendant, and at his death the executors of his estate became his defendants.

Contradictorily with them the consolidated association obtained a judgment decreeing that the property was sufficiently described and the registry legal.

INJUNCTION.

Subsequently the executors and plaintiff’s tutrix, in an injunction, assailed the mortgage and alleged the irregularity of the proceedings.

This injunction was dissolved and judgment pronounced for plaintiff maintaining the mortgage and ordering the property to be sold.

SALE.

At the offering that followed, plaintiff’s mother and the executors became the adjudicatees.

The property was not sold when offered for cash; it was readvertised for sale on twelve months’ bond, and it was at this sale that they, plaintiff’s mother and the executors, became adjudicatees.

TWELVE MONTHS’ BOND.

Some time after the year had elapsed execution was issued on the twelve months’ bond for the purchase price.

The mother of plaintiff, individually and as tutrix of her minor children, Charles EL, Hattie and Katie, sued out an injunction on grounds pleaded by plaintiff in the present action.

This court, on appeal, maintained the legality of the twelve months’ bond and of the proceedings preceding the bond, and specially decreed that the adjudication under which the property passed from the ownership and possession of the bank’s mortgage debtor to the purchasers, Mrs. Bracey and the executors, was legal. All the points now presented have been previously decided in suits of record. After the several decisions that must be held as conclusive upon those who were parties, the “Planters’ Association” became the purchaser, and the defendants now trace their titles to that purchase.

MIINORS’ INTEREST.

It only remains for us to determine whether the 'proceedings bind the minors at their majority; in other words, whether the tutrix had authority to appear and plead in their behalf.

It does not admit of question that a minor can be represented in judicial proceedings by a tutor acting for and in his name.

The tutor has authority to sue and protect the interest entrusted to him.

RES JUDICATA.

It necessarily follows that the effect of res judicata extends to the minor thus represented.

Ordinarily, if a tutor acts injudiciously in litigation in which his ward is interested, he is responsible and must indemnify him for the loss thereby occasioned.

If fraud and downright wrong are committed, to the minor’s prejudice, they would vitiate the proceedings and possibly not prove a protection to any title.

Neither error nor fraud is suggested in the case at bar as having been committed by the tutrix, who sought to protect her minor children, by invoking the aid of the courts to prevent the sale of property in which they had an interest.

The court in Beard, Tutor, vs. Morancy, 3 Robinson, 121, summarily disposes of the question in a petitory action: “We lay out of view the exception to the want of authority in the tutor to institute this suit.”

The law regarding res judicata makes no distinction; the minor himself, “when represented, is equally bound by the authority of the thing adjudged, the sanction of which is founded on the safety of society itself. ’ ’

Status reipublicse máxime judicatis rebus eontinetur.

Louisiana State Bank vs. Orleans Navigation Company, 3 An. 313.

THE TUTRIX HAD THE RIGHT TO PURCHASE.

With reference to possible prejudice resulting to the minor’s interest in these proceedings, it was argued that the tutrix was without right personally to buy the property at the sale made in 1876.

This on the part of plaintiff assumes that the tutrix personally had no interest in the property, an error of fact, for she was a co-legatee of the plaintiff and one of the joint owners.

By Act 26th February, 1841, No. 30, a tutor may purchase in the same cases as an executor, curator or an administrator; that is, when she is a partner in community, or an heir or legatee. There was no conflict of interest.

It is also urged in argument that the plaintiff is not concluded by the appearance of his tutrix in these suits for the reason that there was a conflict of interest, and that action should have.been left to the under-tutor.

There was a joint and not an antagonistic interest between the tutrix and the minors.

She, as a debtor personally and as tutrix, defended the cases and sought to escape from payment of the debt, in their interest and in her own.

Her interest and duty were not at all at variance.

SUIT AFTER EVICTION FOR VALUE OF PROPERTY.

Having been evicted, after judgment she accepted the inevitable and instituted suit against the warrantor to recover the amount due her and her children because of the eviction.

It was her right and duty to thus seek to protect their interest.

She obtained a judgment against the warrantor for the value of the property from which they had been evicted, in April, 1884, a few months prior to the majority of plaintiff.

In her petition for the judgment she admitted the legality of the proceedings for eviction.

The judgment obtained remained unquestioned as to its legality.

COMPROMISE.

Propositions of compromise between the creditor and judgment debtor were considered, and finally resulted in the acceptance by plaintiff’s mother of an amount less than the face of the judgment obtained.

The attorney who represented the warrantor testifies that in the settlement made he required that all the heirs who were minors at the time the suit was brought, who had arrived at the age of majority, should be parties to the settlement; that in consequence powers of attorney were obtained from the heirs absent and the compromise effected.

These powers of attorney are lost and witnesses could not prove the full scope of the power conferred.

Oareful and reputable attorneys at the time thought it was sufficient and the compromise was made.

The name of plaintiff, with the names of his co-legatees, is signed to a transfer of the judgment obtained, made, the receipt states, for a valid consideration. The plaintiff as a witness denies the genuineness of the signature purporting to be his, and he adds that he does not think that it was written by his mother, who held his power of attorney. The mother was not called upon to testify in the case.

We do not question the truthfulness of plaintiff’s testimony regarding his signature to this receipt. The fact remains that it may have been signed by some one empowered to sign; that during many years the transaction was unquestioned.'

Third persons who are purchasers can not be affected by these latent defects. They had the right to presume that the receipt was signed by the plaintiff. Granted all that is claimed in b’ehalf of plaintiff in reference to the receipt and leaving it out of consideration entirely, the plaintiff is confronted by the judgment obtained by his tutrix, and which she, after his majority, collected for his and co-creditors’ account, and by the proceedings which led to the judgment — all admitting the validity of the action to which he had been subjected.

IE ERROR WAS COMMITTED TUTRIX WAS RESPONSIBLE.

If the tutrix has committed an error, it would be at most one of judgment, for which she would become responsible to the heirs for whom she acted, in compromising a judgment obtained in her name, and which,in so far as third persons are concerned, has all the characteristics of unqualified acquiescence by the heirs.

PRESCRIPTION.

The defendants plead the prescription of five years as curing all informalities connected with, or growing out of, any public sale made by any person authorized, as applying “whether against minors, married women or interdicted persons.” C. C. 3543.

Contradictorily with the tutrix, authorized to represent her minor children, regarding the very property involved and the title now assailed on the grounds now alleged by plaintiff, this court held, “besides,” it would seem, that the lapse of five years has ratified what irregularities may have existed. 34 An. 997 (already cited).

The twelve months’ bond in question contains the declaration that the proceedings upon which it was based were regular. These declarations have been accepted as correct in a decision of this-court.

Subsequent to that decision, the tutrix, in her suit against theWarrantor, judicially admitted—

That the property had been seized, advertised and regularly sold.

If there were irregularities, they are barred by the prescription pleaded.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that plaintiff’s demand be rejected at his cost in both courts.

On the Application for a Rehearing.

Breaux, J.

Impressed by the earnest application of counsel for a rehearing, and the commendable zeal it manifests in behalf of his clients, we have re-examined the voluminous transcript from cover to cover, and laid it aside convinced of the correctness of our decision, upon the points urged, on the previous hearing.

When the property in question was inherited by plaintiff’s mother* sisters and himself, it was subject to a mortgage, and a suit to foreclose that mortgage had-been instituted against their testator, James. Hart, who was in possession as owner.

As one of the adjudicatees of the prtiperty, in these proceedings-foreclosing the mortgage, the mother of plaintiff, with the executors, executed a twelve months’ bond, and thereby each acknowledged his ownership in the proportion of one-third — i. e., plaintiff’smother one-third, and the remainder for the estate.

A writ of fi. fa. having issued on the twelve months’ bond, the tutrix sued out an injunction, in which she alleged all the defencespleaded by the plaintiff in the suit at bar. The demand of thetutrix in the injunction proceedings was rejected. It was decreed that she was bound by the proceedings, and that the irregularities, pleaded were closed by the bond.

The property was sold contradictorily with the executors and the tutrix, and adjudicated to the Planters’ Association, thereby completely divesting the executors and the tutrix from their ownership.

If the executors had any claims in the property prior to this last sale, they were transferred to the adjudicatee. They were parties to the proceedings, and are bound by the adjudication. Since that sale Mrs. Bracey, personally and as tutrix, and the executors have no right to the property. The property passed out of their possession and ownership.

John Oalderwood, the vendor of James Hart, being dead, suit was; instituted by plaintiff’s tutrix against the legal representatives of his succession (warrantors of the title transferred by Oalderwood to-Hart to the property involved in this ease).

The plaintiff in that case recovered judgment against them as warrantors of the title.

In a compromise an amount was. received in satisfaction of the-judgment.

The plaintiff executed a power of attorney, which was lost. He-was of age at the date of the compromise. Prom the evidence it is fair to infer that it was sent to his mother to sign as his agent, transferring the judgment obtained by her, as tutrix and personally,, against the warrantor.

The power of attorney was considered at the time as giving ample; authority to the agent to effect the compromise.

Regarding the signature to the transfer still extant, the attorney representing plaintiff’s mother testifies that he made a written memorandum at the time of the fact that, Mrs. Bracey had signed plaintiff’s signature.

There is sufficient affirmative proof of a power of attorney. The ■evidence relating to the signature was sufficiently direct as to render it incumbent upon him to introduce his mother as a witness to disprove that she signed his name as a witness.

If she signed plaintiff’s name, as we have every reason to believe from the evidence that she did, the testimony admitted to prove the authority given in the power of attorney satisfies us that she was •duly authorized.

It therefore is proved that with his consent, his (plaintiff’s) mother and tutrix received the value of the property claimed by her for him when he was a minor — in other words, through her he accepted the eviction as legal and binding.

It is urged that in any event, as to one of the defendants, Hardin, we should change our decree; that he bought from Mrs. Bracey personally, prior to the last sheriff’s sale and before her divestiture of title at that sale, and that he has not interposed the pleas of res judicata and estoppel in his separate defence in this case, and, therefore, can not be benefited by those pleas filed by his co-defendants.

As a proposition of law we agree with plaintiff’s counsel in so far as relates to the plea of res judicata. It must be specially pleaded.

As to the plea of estoppel, though not specially made, the defendant, in objecting to the admissibility of testimony, did urge the grounds against admission that plaintiff was estopped.

It is argued that Mrs. Bracey sold the lot to him prior to the last sale, and that in consequence she sold it at a time that there was an interest remaining in the estate of James Hart, testator.

Without any objection whatever on the part of plaintiff, the defendant proved that subsequent to her sale to him the tutrix and her co-owners were completely divested of all title.

The plaintiff is confronted with the last deed, which we can not overlook, having been admitted in evidence without the least objection. An owner who allows proof admitted is bound by that proof. Plaintiff can not recover property of which he has been divested, be the date of divestiture what it may.

The plaintiff reiterates that the court is without jurisdiction in so far as relates to the defendant Hardin; that he held a title distinct and separate from that of his co-defendant.

His title is as dependent upon the regularity of the proceedings as those of his co-defendants.

It is the same, save that he purchased prior to the last sale made-—i. e., prior to the sale to the Louisiana Association of Planters.

After the divestiture by the effect of the last sale was proved, it was in all respects the same. He is therefore interested in all the proceedings from commencement to end. If this court had annulled the proceedings his title would have been annulled.

Moreover, this defendant claims his improvements, amounting in value to more than two thousand dollars.

The plaintiff claims the revenues and the land, of which the improvements are a part by destination.

The value of thése improvements and the rental value of the property are admitted. The pleading limits the claim for improvements to one fourth. Had the judgment been affirmed and the decree rendered in conformity with the pleading, a partition of these improvements would have been ordered of property of value within the jurisdiction of this court.

Rehearing refused.

McEnery, J., recuses himself, having been of counsel.


source: Caselaw Access Project

author: Breaux, J. Watkins, J.

license: Public Domain

text:
    No. 1286.
    Jno. W. Crawford et al. vs. Robert L. Binion.
    The court where the property is situated has jurisdiction oí a suit to have prop - erty sold to effect a partition of property of which minors, who are absentees-, are eo-proprietors with major heirs who are present, and the surviving wife. 31 An. 572.
    In the suit minors who are absentees are properly represented by a curator ad hoc. Purchasers at judicial sales are protected by the judgment decreeing the sale.
    APPEAL from the Sixth District Court, Parish of Richland. Cary J. Ellis, J.

      J. W. Willis and Gunby & Sholars for Plaintiffs, Appellants.

      Potts & Eubson, and E. P. Wells for Defendant and Warrantor, Appellee.
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs sue for the recovery of a three-fourth interest in lands described in their petition.

Their father, the late T. S. Orawford, resided in Oaldwell parish, and left a wife and four children, minors at the date of his death.

Their mother qualified as their tutrix and shortly afterward removed to Texas, and married, in 1878, one J. P. McGuire, from whom she obtained a divorce in 1878.

In 1880 the tutrix visited relatives in Madison parish, and while in that parish on a visit, a family meeting was held and recommended her appointment as tutrix without bond. The tutrix qualified, also an under-tutor.

The tutrix never resided in that parish and owned no property situate within its limits.

On the 15th day of December, 1882, one of the heirs, Mary Ris-Inger, joined by her husband to authorize her, brought suit in the District Court of Richland parish to partition a plantation containing four hundred and ten acres, the property of the late T. S. Orawford.

In her petition for the partition she alleged the interest she claims .and the interests of her mother and co-heirs. She averred that they were absentees; also that it was necessary to appoint a curator ad hoc to represent her mother and her mother’s husband, individually and as tutrix and co-tutor of the absentee; also to represent each of the minors.

The prayer of the petition is that a curator ad hoc be appointed to represent Mrs. Alice A. McGuire and her husband, individually and as co-tutor. The minors are not personally named nor referred to as absentees to be represented.

Upon consideration of the petition the clerk of the District Court issued an order appointing an attorney at law to represent the parties, including the minors personally.

The court subsequently pronounced a judgment of partition, decreeing a sale of the plantation to effect a partition upon terms to be fixed by a family meeting, and ordering that a family meeting be held to recommend the terms.

In March, 1884, the property, under this judgment, was offered for sale, and adjudicated to John A. Hernler, the warrantor.

On the 27th November, 1888, Hernler sold the property to R. L. Binion.

The records do not contain a copy of proceedings of any family meeting in the interest of the minors to fix the terms of the partition sale, as decreed in the judgment for a partition.

This is urged as one of plaintiff’s grounds to annul the proceedings of partition; the plaintiffs also aver that the defendants in the suit for partition, plaintiffs in the present suit, were minors and riot rep. resented in the proceedings; that their mother had lost her natural tutorship by her second marriage, and that the appointment of a curator ad hoe to represent their mother personally and as tutrix, and appointing the same curator to represent each of the minors, who had conflicting interests, was an absolute nullity; that the curator ad hoe never was cited and never answered; that the court of Rich-land parish was without jurisdiction to settle the succession of T. S. Crawford, whose last place of domicile was the parish of Caldwell, where his succession was opened.

The plaintiffs claim rent at the rate of four hundred dollars per annum, and that the defendant and warrantor were in bad faith.

JURISDICTION IN PARTITION.

Primarily the inquiry suggests itself, was the court of Franklin parish vested with jurisdiction?

The property was owned in indivisión. No administrator nor executor opposed the application to make a partition at the situs of the property. It does not appear that there were debts or that there was the least necessity of establishing a residuum, of interest owned by the heirs.

The property was owned by the surviving widow and the heirs, who were parties to the proceedings. This being the condition, the court had jurisdiction; not an exclusive jurisdiction, for th,e court of the domicile may issue similar orders and pronounce similar decrees in the course of the settlement of the succession.

The jurisdiction of the court of the domicile does not necessarily ■exclude the jurisdiction of the court of the situs of the property. Co-heirs made defendants who are cited to appear before the court where the property is situated, and make no defence, but submit themselves to the court’s jurisdiction by offering no defence, can not be heard to question the validity of the title of the purchaser at the partition sale who bought it in good faith.

The property was not owned exclusively by the succession. The surviving widow had an interest in the land. Buddecke vs. Buddecke, 31 An. 572.

APPOINTMENT OF CURATOR AD HOC TO REPRESENT MINORS.

It is a-rgued for plaintiff that the defendants in the partition proceedings were absentees, and that they were not legally made parties to the suit; that they were not cited.

To sustain the arguments they allege that the appointment of the curator ad hoc was an absolute nullity in that it was ultra petitum^ that the petition did not make them parties individually, nor as absentees, but simply as minors represented by one who was no longer tutrix.

In the body of the petition it is asserted that an appointment, should be made to represent the minors personally. The omission in the prayer is cured by the order appointing the curator ad hoc. The officer sets forth in the order of appointment that after having considered the petition he made the appointment of the curator ad hoc to represent the minors personally, as well as their tutrix.

The plaintiffs themselves did not consider it a fatal irregularity, for in their petition in this case they allege:

“ 4. The appointment of a curator ad hoc to repfesent Mrs. A. McGuire individually and as tutrix, and appointing the same curator to represent each of the minors who had conflicting interests, was and is an absolute nullity.”

In the face of this allegation, the objection urged in argument only, that the prayer does not include the minors personally, has no merit.

THE MINORS PROPERLY REPRESENTED.

This brings us to the second point presented in plaintiff's petition to annul the petition, that the minors who had conflicting interests could not be represented by one curator; that each absent minor-must be represented by a curator ad hoc.

The law’s provision upon the subject is, that the several minors who have opposite interests in the partition, and who have the same-tutor, “there shall be appointed to each of them a special tutor ad hoc whose functions shall cease after the partition has been effected.” O. O. 1369.

The sale made to effect a partition is merely one of the acts of the partition. Hooke vs. Hooke, 14 L. 23.

In establishing the shares of the minors in the partition who have opposite interests, special tutors must be appointed also'in forming lots in a partition in kind, for in forming these lots the minor absolutely parts with an interest and becomes the absolute owner of the interest allotted to him.

The necessity of such an appointment does not arise in the matter of the sale of the property to effect the partition.

The rights of the defendants inter se remained as if no sale had been made. Their rights attach to the proceeds. In definitely settling those rights, a conflict of interest may arise rendering it necessary to appoint a special tutor to each minor.

The proceedings to sell do not suggest the necessity of appointing a different curator ad hoe to represent each party in interest.

The functions of the curator are not of such a character as require such separate representation at the sale.

In Succession of Pinniger, 25 An. 55, a similar question was considered, and the court in that case announced that the fact that there were not special tutors ad hoe appointed for the minors at the sale did not concern the purchaser; that the duty of such tutors begins at the partition before th enotary, and if not appointed at the time of the sale they may be appointed afterward, before the notary begins the partition.

In Emnor vs. Kelly, 23 An. 764, the court said: “ In the ulterior proceedings — that is, after the sale — especially in the act making the partition, separate tutors were severally appointed by the minors.”

• In the Rev. Oivil Oode the article requiring such appointments — viz., Art. 1369 — is found under the rubriques: “How the notary is bound to proceed in judicial partition,” and relates more particularly to the forming of lots and the method to be followed in the partition proper.

The plaintiffs also plead, as a ground to annul the sale, that the curator ad hoe was never cited and did not file an answer.

The plaintiffs on the trial “ admitted that the original suit, No. 841, Mrs. M. E. Risinger vs. Mrs. A. A. McGuire et al., has been lost or mislaid, after diligent search, except the original appraisement of the property made by B. E. Newberry and M. O. Williams — appraisement being one thousand eight hundred dollars to effect a partition ; except also the original order of sale directed to the sheriff of the parish of Richland, giving the terms of the sale as agreed to by a family meeting.”

We are not informed whether or no a citation was among the lost documents.

The minutes show that “ in this case there.was an answer filed.”

The documents being lost, this extract from the minutes supplies the loss, as it shows that an appearance was made on behalf of the defendants in the partition proceedings.

Granted that the tutrix had forfeited her trust as tutrix by permanently leaving the State, her minor children, who were with her and absentees, were represented by a curator ad hoc.

‘ ‘ If the minor against whom one intends to institute a suit has no tutor, the plaintiff must demand that a curator ad hoc be named to defend the suit.” Art. 116, C. P.

Interpreting that article in Buddecke vs. Buddecke, 31 An. 574, this court held that “the minors, being absentees, were properly represented by curators ad hoc.”

In Zuberbier vs. Prudhomme, 34 An. 1048: Minors may be made parties through a curator ad hoc.

The plaintiffs also allege that “no family meeting was ever held in the interest of said minors to fix the terms of said partition sale.”

In the admission made relative to lost documents, the record discloses that there is an order of sale extant giving the terms of the sale as agreed to by a family meeting.

Whatever may have Been the informalities and irregularities of the meeting are not before us; only the admission is of record. There may have been grave irregularities, but the admission made to supply lost records is an answer to the allegation that no such meeting was held fixing the terms of the sale.

Moreover, in an action of partition against minors the terms need not be fixed by a family meeting. C. C. 1237.

In Shaffet vs. Jackson, 14 An. 157, it was decided that “ where minors are sued for a partition a family meeting is not necessary to authorize the suit, or to fix the terms of the sale.”

THE INNOCENT PURCHASER.

As to strangers, there is no good reason to hold them bound because of informality, however great, or because no family meeting at all was held.

The principle is now well established that a probate sale to effect a partition is a judicial sale, and the purchaser is protected by the decree, beyond which, if the court have jurisdiction, he need not look. Lalanne’s Heirs vs. Moreau, 13 La. 431.

“The order of sale, it has been held, is a judgment, and that the purchasers under it are protected.” Graham Heirs vs. Gibson, 14 La. 150; Shaffet vs. Jackson, 14 An. 155.

The court, we have determined, had jurisdiction, and the heirs were parties to the proceedings.

The irregularities are not jurisdictional, and the rights of strangers to the proceedings resulting in a sale are not affected by them.

clerical error.

We note that in the brief it is stated that the judgment in the partition suit is fatally defective in another respect.

That it does not mention two of the plaintiffs.

It is not made a ground in plaintiff’s petition. We do not feel at liberty to annul a partition upon a ground not judicially alleged. The District Judge says it was a clerical error.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed at appellant’s costs.

Application eor a Rehearing.

Watkins, J.

The point is made that “ two important questions were not noticed by the court:” (1) that the judgment ordering the partition did not fix the shares of the co-proprietors; (2) that the property was the separate estate of plaintiff’s father, and not that held in community betw een him and his wife.

This proposition is coupled with the averment that the judge a quo improperly refused plaintiffs a new trial on the ground assigned of newly discovered evidence to the effect that Crawford entered the land in controversy prior to his marriage; and the contention of their counsel is that if they are not allowed a new trial, for the purpose of introducing the evidence newly discovered, the evidence should be considered in determining the status of the property.

On this hypothesis the argument and insistence of plaintiff’s counsel is that — taking the property to be separate and not community— the judgment of the court a qua must be reversed and the partition sale declared an absolute nullity. For, say they, if the surviving Mrs. Orawford had no community half-interest in the property, there was a one-half interest in the property that was not represented in the partition suit and sale. That this question is jurisdictional, and the fact a fundamental, radical defect, because a judgment against an absentee can have no effect beyond the property interest of the absentee, which is before the court rendering the decree — the court possessing no jurisdiction in personam quoad hoc.

While still insisting on all the grounds assigned in the petition for the nullity of the partition suit and sale, there have not been any specific reasons assigned for a rehearing in other respects than those enumerated; and we are not, for that reason, authorized to review them.

I.

On the first proposition, that the judgment of partition did not fix the shares of the respective co-proprietors, we find the statement of our opinion to be, that “the court pronounced a judgment of partition decreeing the sale of plantation to effect a partition upon terms to be fixed by a family meeting, and ordering that a family meeting be held to recommend the terms;” and, in treating of the nullity of the appointment of a curator ad hoc to represent the absentee defendants in the suit, the opinion draws a clear distinction between the proceedings antecedent to the act of partition and the proceedings in the matter of the partition; and held that one curator ad hoc was sufficient to represent all the defendants in the former, but that “in establishing the shares of the minors in the partition who had opposite interests, special tutors must be appointed; also in forming lots in a partition in kind — for in forming the lots the minors absolutely part with an interest and become the owners of an interest.”

The conclusion is clear and irresistible that there is a marked distinction between the essential requisites of a partition suit and the proceedings in effectuating a partition, under the judgment ordering a partition. Recognizing this clear distinction, the judgment did not fix the shares of the heirs; and this is the effect of our opinion. In fact, this is the only basis of it.

II.

On the second proposition our opinion simply states, without any discussion, “that the property was owned in indivisión,” without specifying it as separate or community property.

An inspection of the record discloses no record proof as to the date or dates at which the deceased, T. S. Orawford, acquired the property in dispute, exc. pt of one tract of eighty acres, which was adjudicated to him at sheriff’s sale on the 1st of April, 1854; and, inasmuch as his marriage occurred on the 28th of December, 1854, it was evidently not an asset of the Orawford community.

With regard to the remaining three hundred and thirty acres there is no proof, except that furnished by the evidence of the widow Orawford, that her deceased husband had purchased all of the lands and made all of the improvements thereon prior to their marriage. The judge a quo did not regard that testimony sufficient to justify the annulment of the defendant’s title, derived, as it was, through a judicial partition of the property, proceedings in which had been taken on the theory that same was community. As there is only one-half interest in eighty acres affected by this ground of complaint, we are of opinion that the rule de minimis should apply — it being only ten per centum of the total amount of land claimed. We think his decision was correct.

III.

After judgment had been rendered against them, plaintiffs made an unavailing application for a new trial in order to introduce in evidence a certified abstract of land entries found in the recorder’s office, parish of Richland, showing that T. S. Orawford did enter the remaining three hundred and thirty acres of land on July 31, 1854, and September 21, 1854, respectively, to show his separate ownership. Their motion was formal, timely, and adequate in terms; but it is manifest that it does not evidence due diligence. The evidence was important, but it was as easily obtainable before trial as it was afterwards. Its rejection was not error on the part of the judge.

Rehearing refused.


author: Miller, J.

text:
    No. 1299.
    The State vs. Bill Tyler.
    The error assigned in the indictment under Sec¡. 790 of the Revised Statutes for stabbing -with intent tomurder while lying in wait, or in the perpetration or attempt to perpetrate a robbery, etc., that the essentials of the robbery are not set out, will not be sustained when rejecting as surplusage all words relating to robbery, and the perpetration or attempt to perpetrate that crime, there is the complete offence charged of lying in wait and stabbing with intent to commit murder. R. S., Sec. 790; 21 An. 748; State vs. Humphries, 35 An. 966,

      The summoning of the witnesses who testified on the preliminary examination of the accused and the returns of the sheriff not found, unless it is made to appear the witnesses are in fact within reach of the process of the court, is sufficient to authorize the introduction of their testimony on the examination. R. S. 1010.
    PPEAL from the Twentieth District Court, Parish of Ascension. Guión, J.

      R. McOulloh for Defendant and Appellant.
    J. P. Madison, District Attorney, for the State, Appellee.
   The opinion of the court was delivered by

Miller, J.

This appeal is from the sentence of the lower court on defendant of imprisonment for life on his conviction for lying in wait a d cutting with a dangerous weapon, with intent to commit murder, the persons named in the indictment.

There was a motion to quash the indictment for irregularities in drawing the jury, the same as are alleged in the case of State vs. White, 46 An. 1273, decided at this term, and for the reasons given in the decision in that case our conclusion is there is no merit in the motion.

There is a bill of exceptions to the admissibility of the testimony on the preliminary examination; the objection being that there was not sufficient diligence to obtain the presence of the witnesses on that examination at the trial. Under the statute the witnesses should be produced when their attendance can be secured. R. S., Sec. 1010. We find tha; the witnesses were summoned, and there is the return of the sheriff that they could not be found. There is, besides, his testimony of fruitless inquiries made by him for the witnesses. In the course of the examination of the witnesses, one testified he had heard the absent witnesses state, when before the committing magistrate, that they were non-residents. The defendant took a bill of exceptions to the testimony of the statements of the absent witnesses. Without the testimony of their statements, we think the State exhibited due dilligence to obtain their presence, and a foundation was thus laid for the introduction of their depositions on the preliminary examinations. It can not be expected the State should send its subpcenas into other parishes with no reasonable cause to suppose the absent witnesses could be found. Subpoenas were issued and the witnesses were sought in Ascension, and the sheriff’s efforts extended to the adjoining parish, Assumption, and all was done that could be reasonably demanded in the premises.

The assignment of error is: that the indictment under Sec. 790 of the Revised Statutes is defective, because charging attempting to perpetrate and perpetrating a robbery, and cutting with intent to murder; the ingredients of robbery and murder and the particulars of their crimes are not stated. But the disjunctive in the section makes the crime complete without the perpetration or attempt to perpetrate the robbery. So any supposed defect in respect to describing the robbery may be rejected as surplusage, and there remains the offence of lying in wait and cutting Albert Lincoln and Michael Oooney with a dangerous weapon with intent then and there feloniously, wilfully and of malice aforethought to kill and murder said Albert Lincoln and Michael Cooney. The conviction stands for this offence, sufficiently charged.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed.


author: Mtt.t.br, J.

text:
    No. 1287.
    Jacob Marx vs. His Creditors.
    Under the Act No. 131 of July 12,1888, the creditor seeking to set aside the respite granted his debtor must prove his failure to make the payments required by the respite, and such proof is not dispensed with because the debtor ruled to show cause why the respite should not be set aside fails to show cause or files a frivolous exception.
    APPEAL from the Third District Court, Parish of Union. Barksdale, J.

      Gnnby & Sholars for Plaintiff and Appellant.

      Everett & Thomas for Defendants and Appellees.
   The opinion of the court was delivered by

Mtt.t.br, J.

The plaintiff, Jacob Marx, obtained a respite from his creditors. Subsequently, some of bis creditors instituted proceedings by rule to set aside the respite on the ground that the debtor had not made the payments under the terms of the respite, and other grounds were assigned. To this rule the debtor excepted and the exceptions were overruled. Thereupon the court, without any proof of the allegations in the rule of the creditors, made the rule absolute, annulling the respite and appointing a syndic to administer the debtor’s property, the court conceiving the debtor called on by the rule to show cause and having shown no cause against annulling the respite, that the judgment making the rule absolute was authorized without any proof of the creditors’ demand. Prom that judgment the debtor appeals.

The Act No. 134 of 1888 is the basis of the demand of the creditors. That act provides that the creditors of the respited debtor shall have the right to cause the respite to be set aside and a syndic appointed, if the debtor fails to comply with the terms of the respite. The proceeding under the act is to be summary. We are asked in this case to hold that the act, besides providing a summary proceeding, dispenses the creditor from making any proof of the default of the respited debtor, on which default the right of the creditor to the relief sought by him depends. All will concede the general rule that the plaintiff, whether in the suit or in rule, must prove his demand. When the appeal comes to this court the record must exhibit the testimony, or the statement of facts, or admissions on which the judgment rests. O. P. Arts. 585, 586, 603.

The judgment in this case rests on no basis, except the rule against the debtor to show cause why judgment should not be pronounced against him and his failure to show cause. The creditors, plain iffs in rule, were not in our view dispensed from the burden of proving the allegations of their rule merely and only because the debtor did not exhibit cause. The burden was not upon him to show the creditors had no ground, but on the creditors to show the grounds existed on which they relied. The defendant in the suit who fails to appear when cited, or flies a frivolous exception, which is overruled, is not therefore presumed to admit plaintiff’s demand. The plaintiff in the ordinary suit, notwithstanding the failure to answer or the frivolous exception of the defendant, must still prove his demand. So it is with the plaintiff in rule, that is, although the defendant in the rule does not show cause, or at least any adequate case, still the plaintiff in the rule must prove his demand.

It is urged on us that rules to erase mortgages and against garnishees are made absolute without proof. Such rules' taken by administrators or syndics in the course of their administrations before the court having jurisdiction of the succession or insolvency, are made absolute because the law directs such erasure as the incident of such administration. Judgments go against garnishees because the legal consequence of the mere lapse of ten days without answer. But proceedings to erase mortgages or against garnishees furnish no warrant for a judgment annulling a respite without any proof of the facts on which, under the act of 1888, the right to annul depends. It deserves consideration, too, that respites concern all the creditors of the debtor.^ On the theory that respites may be set aside without any proof of the default of the debtor, the rights of all the creditors could be displaced or affected by the collusion of the debtor with any one of his creditors, not to show cause when proceeded against to annul the respite. We think the consequence itself illustrates the fallacy of the argument in support of the judgment.

The presumption in some cases is invoked that judgments are based on testimony. But any such presumption is excluded by the showing on the record that no testimony was produced.

The manifest justice of the case, and the fact that the lower court conceived the act of 1888 authorized the judgment without proof, determines us to remand the case to enable the creditors to make that proof.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed and the case be remanded to the lower court for proceedings in conformity to this opinion, the costs to be paid by thejappellee.


text:
    No. 1298.
    The State vs. Charles White.
    Tlie venire of jurors will not be set aside and tbe indictment quashed merely because one of the commissioners wrote the names of the jurors on a portion of the ballots in the jury box, or because there is a number on the ballots manifestly intended to designate the ward of the residence of the juror, it appearing the names were so written by one of the commissioners in the presence of his co-commissioners and clerk; and although the clerk is required by the act to write the names, and although the act requires the ballot should express the residence as well as the names of the jurors; the irregularities indicated being within the provisions of the act maintaining the venire and indictment, unless it is shown the irregularities caused great wrong to the accused. Act No. 44 of 1877.

      No foundation for the introduction of the testimony on the preliminary examination of the accused is required, other than that afforded by the certificate of the committing magistrate, save when it is claimed the witnesses are within reach of process and should be produced, then diligence to obtain their pres - ence is an issue. R. S., See. 1010.
    It is presumable that ballots in the jury box bear names of jurors written by clerks of the District Court who have passed out of office, and the testimony of the incumbent clerk, on the motion to quash the venire, that he did not recognize the handwriting on three of the ballots drawn from the box, does not authorize the conclusion that others than the clerk wrote the names on the ballots so drawn, but the inference is the names were written by the predecessors, or some of them, of the incumbent clerk, and of whose handwriting he had no knowledge. Acts 1877, No. U.

    A PPBAL from the Twentieth District Oourt, Parish of Ascension, i* Guión, J.

      J. P. Madison, District Attorney, for the State, Appellee.

      G. A. Gondran and R. MoCulloh for Defendant and Appellant.
   The opinion of the court was delivered by

Miller, J.

The defendant appeals from the sentence of ten years imprisonment for manslaughter.

It is urged the court erred in overruling the motion to quash the indictment. The grounds of the motion to quash were that the ballots or slips of paper were not written by the clerk, and did not contain the number of the ward or place of residence of the jurors. The testimony is that the names of three of the jurors on the ballots drawn from the box to form the petit jury were in handwriting not known to the clerk of the court, and from this the conclusion is deduced that the ballots were not written by the clerk as urged in the motion to quash. A portion of the ballots were written by one of the commissioners, but in the presence of the clerk and the other commissioners. It further appears that the ballots have only the name of the juror and a number, and this is the basis of the objection that the residence of the juror is not on the ballot as the law requires.

Under the law three hundred ballots bearing the names of jurors were required to be put in the jury box at the outset, and the box is to be replenished from time to time, so that the standard of three hundred names shall at all times be maintained. It is a fair inference that the box contdns ballots bearing names written by the clerks, or at least some of them, who have at different periods filled the office, the duty of writing the names being imposed on the clerk as one of the jury commissioners. Act No. 44 of 1877.

The presumption that the ballots were placed in the box and the names written on them by the clerk is not at all displaced by the testimony of the present clerk of his want of knowledge of the handwriting on three of the ballots. The inference is authorized the handwriting was one of his predecessors in office.

The number on the ballot could ha > e been placed upon it for no other purpose than to indicate the ward of the juror’s residence. Of course it would have been better to add word “ ward,” but still the significance of the number is, that residence is intended, so as to meet the requisite of the law that the ballot shall bear the residence as well as name of the juror.

When we are asked to quash this indictment on the ground that others than the clerk wrote the names on the ballots, the answer is, there is no proof to sustain that ground. To call on this court to quash the indictment because the ballots bearing numbers, manifestly referring to the jurors’ residence, do not contain the word “ward,” is to insist, we think, on an exactitude as to details not ordinarily attainable or to be expected. The law directs the clerk shall write the names. In this case some w. re written by one of the commissioners, but in the presence of his co-commissioners and of the clerk. This was a deviation from the law. But the law has wisely provided that no venire of jurors shall be set aside and indictments quashed for any irregularity in drawing juries, unless it appears that some great wrong or injury has resulted to the prisoner. No such wrong is suggested in this case, and we think this saving provision in the jury law is in itself a sufficient answer to the objection the ballots were not written by the clerk and did not express the jurors’1 residence. The decision cited by the prisoner’s counsel from 29 An. 825; 48 An. 1131; 35 An. 350, maintains the nullity of venires, drawn without the presence of the clerk, clothed as he is with important functions in the jury drawings; they also'hold that the assumption by strangers of the functions of jury commissioners, vitiates the venire. We can-not appreciate the application of those decisions to this case.

The last point urged against the verdict is that the lower court erred in admitting in evidence the testimony of witnesses on the preliminary examination. The objection is: no foundation was laid for the introduction of the testimony. It is urged in the brief that the preliminary examinations were not attested by the magistrate. The bill of exceptions does not show that objection. The bill states “the papers were not in proper shape.” That objection is too vague. We must conclude the preliminary examinations were properly certified and the depositions reduced to writing by the trial judge. No foundation was requisite to be laid other than that afforded by the papers themselves. R. S., Sec. 1010.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed.


text:
    No. 1301.
    The State ex rel. Reynolds & Henry Construction Company vs. The Mayor and Council of Monroe.
    The promulgation of the returns of election of the votes of tax-payers to determine whether a tax is to be imposed in aid of railroad enterprises, is a ministerial duty, obedience to which will be compelled by mandamus. The officials charged with the duty, when called on to make promulgation of theresult, can raise no question of fraudulent voting or other objection to the validity of the tax; nor have such officials any discretion or power to withhold or refuse that promulgation. Act No. 35 of 1886; High on Extraordinary Remedies, 6 An. 68; 11 An. 672; 14 An. 249, passim. See decision between these parties in 45 An. 1024.
    APPEAL from the Fifth District Court, Parish of Ouachita. Richardson, J.

      JBoatner & Lamkin for Relators and Appellants.

      Thomas O. Benton, City Attorney, for Respondent and Appellee.
   The opinion of the court was delivered by

Miller, J.

This is an application for a mandamus to compel the defendants, the Mayor and Council of Monroe, to promulgate the result of an election held in Monroe on the 10th of April, 1888, to determine whether a tax should be levied in aid of the construction of the Houston, Central Arkansas & Northern Railroad Company, the relators acquiring by assignment from the railroad company the right to such taxes.

The defendants resist the application on various grounds: that no demand has beenmade for the promulgation and there has been no refusal of promulgation; that relators had not used due diligence to secure the returns, and their demand is stale; that more than five years have elapsed since the election during -which the relators have had it in their power to compel the commissioners of the election to make their return; that no returns have been made and all data of the election, except as shown, has been lost, and the fault of the relators is charged to have been the cause the law was not complied with•, that it is beyond defendants’ power to comply with the mandamus; that they never had possession of the returns. The answer further assails the election itself, and the returns claimed to have been filed with the clerk of the court as false and fraudulent, the fraud in respect to the election being in the alleged fraudulent votes cast, and the answer asserts a discretionary power in the Council in respect to promulgating the returns, of which discretion it is charged the issue of the writ would deprive defendants.

The Act No. 35 of 1886 provides for elections to determine the question of taxing the property of cities, towns and parishes in aid of railway enterprises. Constitution, Art. 242. If such tax is approved by a majority of the tax-payers at the election to be conducted in accordance with the general election law, the act makes it the duty of the municipal authorities of the town, city or parish to levy the tax. Act, Secs. 1, 2, 3, 4. This court, in its previous opinion between these parties, held that the preliminary step to claiming the imposition of the tax was to obtain the promulgation of the returns, and reserved the relators’ rights to compel that promulgation.

We gather from the brief and argument of defendants that the discretionary power, asserted for them in respect to the election under consideration, relates to fraudulent votes claimed to have been east, for reference is made in the brief to defendant’s efforts in the lower court to show fraudulent and illegal voting, and it is claimed that this discretion also exists in the council to. determine .whether there shall be any promulgation at all. This theory of a discretionary power runs through the entire defence in this court. We are at a loss to conceive whence it is derived. If it exists, the power to vote the tax which the Constitution and legislation vests in the property tax-payer, is controlled by the discretion of the municipal authorities, to be exerted after the votes of the tax-payers have been cast. The power claimed for the municipal authorities assumes they shall determine whether illegal votes have been cast, and for this cause, or because they deem the returns illegal, they shall have the discretion to make no promulgation of the result and refuse to give effect to the election. In our view no such power exists in the Council and Mayor. Their functions in all respects are ministerial, save thatthey must ascertain if the petitionof the tax-payers is signed by the requisite number prescribed by the first section of the act, and their determination on this point is, of course, subject to judicial control. On the presentation of the petition, properly signed, the election must be ordered and the result proclaimed. If in favor of the tax, it must be levied and applied as directed by the act. From first to last the writ of mandamus is available to any and all parties in interest to compel obedience to duties purely ministerial. High on Extraordinary Remedies.

If frauds are committed in the election of a character to vitiate the tax, or other causes exist to oppose it, the remedy is not to be sought in any discretion of the Council. Instances are not infrequent of taxes of this character being resisted, nor has there been the least difficulty in finding suitable remedies where there is ground for their application, but remedy and relief is not by the refusal of the municipal authorities to perform ministerial acts. There is, in our view, no place in this discussion for questions of fraudulent voting, or other defences intimated against the tax itself. Such issues can have no determination to bind anybody on the mere issue whether the result of an election shall be announced by those charged with the duty. Hence, while we have given due attention to all these defences, we are clear they are foreign to the issue here and need no other comment.

On the issue that the defendant can not perform the duty, we must be controlled by the proof and the nature of the duty to be performed. It is, as we appreciate the testimony, proved that the returning officer handed the returns of the election to the secretary and treasurer of the Common Council at the meeting of the Council itself. Copy of the returns doubtless can be found in the proper custody. The previous litigation has been conducted on no such ground as inability to make the returns, and the present defence on that ground is hardly consistent with the other positions assumed by defendants.

As to the lapse of time no prescription has accrued, nor are de - fendants in any position to urge delays imputable to them alone.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and that the writ of mandamus issue as prayed for in the petition of relator, and that defendants pay costs.

Rehearing refused.


author: Nicholls, O. J.

text:
    No. 1460.
    Harry B. Hewes et als. vs. John P. Baxter et al.
    1. Where the wife of one of three joint owners of property dies, leaving a will in which she admits that the interest in that property standing in her name belongs to the community of acquets and gains, there is no necessity, in a suit brought by the other joint owners to effect a partition, that the surviving husband should be made a party in his capacity as testamentary executor of his wife as well as personally and as tutor of his minor children, the wife’s half of the property being left exclusively to the children,
    2. Where the community is dissolved by the death of the wife her testamentary executor has not the right to take possession and control of the property of the community on the ground that the settlement and liquidation of the community is to be conducted in the wife’s succession by and through the administration of the executor.
    APPEAL from the Nineteenth Judicial District Oonrt, Parish of Iberia. Voorhies, J.

      L. T. Dulany and Foster & Broussard Attorneys for Plaintiffs and Appellees.

      Philip II. Mentz and Walter J. Burhe Attorneys for Defendants and Appellants.
   The opinion of the court was delivered by

Nicholls, O. J.

This is the second time that this case has come before us on appeal. In the July term of 1893 we reversed the judgment which had been pronounced in the District Court and remanded the cause for further proceedings according to law without preju - dice to the rights of any one, and with leave granted to all parties to so reform their pleadings and proceedings as to conform to the law and the views expressed in our opinion. The case will be found reported in the 45th Annual 1049, where the facts and pleadings are stated at length.

At the same term, we made a similar disposition of a second suit between the same parties, which had been instituted in and gone to judgment in the parish of St. Martin, 45 An. 1065. The two suits sought a partition between joint owners of certain property, part of which was situated in the parish of Iberia and part in the parish of St. Martin. The suits were brought in different parishes by reason of this fact. In the pleadings in those cases it was alleged that the property to be partitioned had been acquired by a partnership known as Milmo, Stokoe & Co., composed of Mrs. Mattie J. Stokoe, wife of J. W. Stokoe, Bernard B. Milmo and Harry B. Hewes. That the partnership had become dissolved by the death of Mrs. Mattie J. Stokoe and Bernard B. Milmo; that Milmo had left as his heirs several minor children, and that J. P. Baxter had been appointed and qualified as tutor of these children and as executor of their father’s estate. That Mrs. Stokoe had left as her heirs two children, one by a former marriage, who had been relieved from the disabilities of minority by judgment of court (Rose Mary Leitch), and one a minor, to whom his father (J. W. Stokoe) had been confirmed and qualified as tutor. That Mrs. Stokoe had left a last will and testament in and by which her husband, J. W. Stokoe, was appointed executor and that he had qualified as such.

The plaintiffs in each of the two suits were Harry B. Hewes, one of the former partners, and Rose Mary Leitch and J. W. Stokoe, personally, and as tutor of his minor son, Neil W. Stokoe, as representing the interest formerly apparently held by Mattie J. Stokoe. The defendants were the succession and minor children of Milmo, represented by Baxter, as tutor and executor. The judgments in both cases ordered a sale of the property described in plaintiff’s petition in order to effect the partition. The judgments were reversed by us for the reason, that it appeared from the record that the law had not been complied with in the matter of the tutorship of the minor, Neil W. Stokoe, in that prior to the appointment of a tutor, no recording had been made of the minor’s property, so as to secure a mortgage in his favor for the acts of the tutorship. We held that the District Judge should have sustained the exception taken by defendant to the right of J. W. Stokoe, .as tutor, to represent the minor Neil W. Stokoe, and to stand in judgment for him therein and that he should have dismissed the said Stokoe, a co-plaintiff representing the said minor as tutor.

On the return of the eases, Stokoe was appointed and duly qualified as tutor, and letters issued to him as such. Having been authorized by a family meeting, whose recommendations to that effect were homologated, to institute, on behalf of the minor, proceedings for the partition of the property hereinbefore referred to, he, with the leave of the court, intervened in the pending proceedings, joining Hewes as a co-plaintiff, and asking a judgment against the defendants. One of the minor heirs, Milmo, having reached the age of majority, was made a defendant. After several exceptions taken and overruled, the defendants answered and the case went to trial, resulting in a judgment in favor of the plaintiffs and intervenors and against the defendants, and decreeing a sale of the property to effect a partition among the joint owners. Defendants have appealed. The case was submitted to us on briefs. The objections urged are two. The first is that, urged in the answer, in which defendants declare that they deny that John W. Stokoe has any right or title to any part of the property named in the petition; that the succession of the wife has ever been settled, but is still under administration, and that he has possession of said property only as executor; that legatees are named in the will, and Stokoe has never filed account of his gestión and the property has never been distributed among the heirs and legatees as directed.”

This position is thus alluded to in defendant’s brief: “ J. W. Stokoe was appointed and qualified as the executor of the last will and testament of his deceased wife, Mrs. Mattie J. Stokoe. Save that he did qualify, he has never performed a single act in his capacity as executor; he has never filed an account or asked for an order or provoked a judgment of any kind. The will declares that the property left by the decedent is community property, so that one-half, after due administration, belonged to the husband; the other half of such residuum would be the property of Neil W. Stokoe, a minor, and of Rose Leitch, an emancipated minor, the child of the deceased by a previous marriage. These suits were brought by J. W. Stokoe in his own name, as owner of half the property left by his wife, and as tutor to the minor owning one-fourth. After the suit in the parish of Iberia was decided, and before the last trial, in the parish of St. Martin, but long after that suit had been remanded by this Honorable Court, these parties applied to have themselves put into possession of the estate of Mrs. Mattie J. Stokoe, and the usual order was rendered by the District Court upon that petitio u Still the executor has never filed an account or performed a single act as executor; nor is there any evidence to show that there has been a gestión of any kind. In short, the act by which the executor sought to have himself put in possession was an abandonment of his trust, without the performance of a single duty which this trust imposed upon him. But the palpable fact is the absence of having accounted, as executor, to the court for the property which passed into his hands, or of being discharged by the court from this trust.”

We understand defendant to call in question the right of the children and heirs of Mattie Stokoe and the right of J. W. Stokoe to stand in judgment on partition proceedings, so long as the estate of Mrs. Stokoe is in charge of an executor. Waiving any discussion of what would have been the force of such a contention had this property belonged in its entirety to the succession of Mrs. Mattie J. Stokoe, or. had not belonged to the community between herself and husband, we think it clear it has no weight under the actual facts of the case. We may here say that the only legacy left by the deceased was certain furniture to Rose Mary Leitch, who is herself, in proper person, one of the plaintiffs in this suit.

Defendant’s theory that when the community of acquets and gains is dissolved by the death of a wife, and her succession has been opened and a testamentary executor appointed thereto, that the community property passes into the possession of and under the control of this executor, and the community has to be settled and liquidated in the wife’s succession by and through an administration of the executor, is not correct. All parties interested in the community of acquets and gains which existed between Stokoe and his wife, are before the court and would be bound by the proceedings herein. There is another feature in the case which should be referred to, and that is the fact, that the suit as brought was brought not only by Stokoe personally, and as tutor and Rose Mary Leitch, but also by Hewes, one of the partners. The right of the latter to institute a partition suit against the other joint owners, was not dependent upon the condition of the succession of Mrs. Mattie J. Stokoe. Instead of directing the proceedings against all the other oint owners and their representatives as defendants, he was joined by Stokoe personally, and as tutor of Neil W. Stokoe and Miss Leitch as co-plaintiffs, the views of these parties in relation to their respective interests being, it seems, in accord. When upon ascertaining that Stokoe, though he had been appointed tutor and had taken an oath as such, had never caused an abstract of the inventory of the minor’s property to be recorded, we annulled the judgment for a sale of the property and a partition among the parties in interest. We did not dismiss the suit, but remanded the cause for further proceedings, the principal object of such remanding being to afford an opportunity to bring the minor regularly before the court as a party. It was not necessary under the circumstances of this case that the testamentary executor of Mrs. Stokoe should be made a party. We are not advised of there being creditors of her separate estate, but if such there be there are ample remedies by which they can protect themselves.

The second objection urged to the judgment of the District Court, is as to the mode in which the partition should be made. Defendants contend that it should be made in kind; the other parties interested, that it should be made by lieitation. The court on the evidence adduced adopted the views taken by the appellees, and ordered a sale of the property to effect a partition. We have examined the testimony and we can not say there is any error in the judgment in this respect. It is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.

On Application for Rehearing.

In the judgment'rendered by us in this case we simply affirmed the judgment appealed from. While the litigants raised several issues on appeal, no allusion was made by either side as to any error in the lower court upon the question of costs. The case was submitted in briefs which covered, we supposed, all points in controversy. Our attention is called, on an application for a rehearing, to the fact that though the suit is one in partition between joint owners, the District Oourt improperly threw the entire costs upon them. The judgment below is erroneous in the matter complained of, but the error can be corrected without a rehearing. It is ordered, adjudged and decreed that the judgment rendered by us in this'case be so amended as to annul, avoid and reverse that portion of the judgment appealed from which condemns the present appellants to pay all the costs in the District Oourt; and it is now ordered, adjudged and decreed as to costs, that the appellees pay the costs of this appeal, and that those of the District Oourt be paid by the different parties according to their respective interests. This correction made, the application for a rehearing is refused.

In this case W. O. Perrault, District Judge, was called in.

McEnery, J., absent this term.

Breaux, J., recused.


text:
    No. 1459.
    Harry B. Hewes et al. vs. John P. Baxter, Tutor and Executor et al.; J. W. Stokoe, Tutor and Intervenor.
    The issues involved are the same as those in case of Harry B. Hewes eí al. vs. Jno. P. Baxter, No. 1460, cmte p. 1281.
    APPEAL from the Nineteenth Judicial District Court, Parish of Iberia. Voorhies, J.

   The opinion of the court affirming judgment of District Court was delivered by

Nicholls, O. J.

In this case W. O. Perrault, District Judge, was called in.

McEnery, J., absent this term.

Breaux, J., recused.


text:
    No. 1465.
    Harry B. Hewes vs. John P. Baxter et al.
    The refusal by a District Judge to grant an order applied for by one of three joint owners of movable property who, pending his suit for a partition of the same, had caused it to be sequestered, for a sale of the property as perishable, was within his sound legal discretion.
    The order sought being interlocutory was not subject to appeal, unless shown to work irreparable injury.
    APPEAL from the Nineteenth Judicial District Court, Parish of Iberia. Voorhies, J.

      Beattie & Beattie Attorneys for Plaintiff and Appellant.

      P. H. Mentz and Walter J. Burke Attorneys for Defendants and Appellees.
   The opinion of the court was delivered by

Nicholls, O. J.

Plaintiff, in a petition to the District Court for Iberia, alleged himself to be a co-owner in indivisión, of certain movable property described therein, and that his interest arose as a member of the late partnership of Milmo, Stokoe & Co. That the partnership was dissolved and the affairs settled and liquidated, but that all of the described movable, as well as the immovable property, was still in indivisión, and that he had brought suit for the partition of said property belonging to the joint owners, which suit was still pending in the District Court. That he feared and believed that, pending the final decision of said suit, his co-owners might and would make use of their possession as co-owners, to dilapidate and waste said property and the revenue thereof, and w;ould part with, conceal and dispose of said property during the pendency of the above mentioned proceedings. That all of said property was perishable and was fast going to ruin and destruction, and he prayed for a writ of sequestration, which, being granted, the property was taken possession of by the sheriff in execution of the order.

Subsequently to this, plaintiff presented a petition for’ an order for the sale of the property sequestered, upon the ground that it was perishable and fast being lost by natural decay and deterioration. The application was refused, and from this refusal of the District Judge the present appeal was taken.

Appellant is one of the plaintiffs in the suits of Hewes et al. vs. Baxter, Tutor, et al., ante p. 1281, just decided by us, and the property sought to be sold under this order, was part of the property the sale of which was ordered to be made on the judgments in those cases in order to effect a partition, but which sale was held up at the time of this application by a suspensive appeal taken by the defendants.

The order prayed for was not sought to be obtained contradictorily with the other joint owners, but ex parte from the judge upon affidavits submitted to him. The co-owners, all living in the parish of Iberia, were completely ignored in the matter. The District Judge expressed no opinion and made no ruling upon the merits of the application, but denied it, stating that were he to grant it he would usurp authority belonging exclusively to the appellate court. He said that the court would nullify the suspensive appeal taken from its own decree, which orders the sale of this identical property; that it would ignore the rights of the parties concerned in the ownership of that property, by giving ex parte, and without a hearing an order depriving them of their rights and property.

The order prayed for was interlocutory, and of a character such as fell under the sound judicial discretion of the District Court. That decision this court would not undertake to interfere with, unless under circumstances evidently leading up to irreparable injury. This case presents no feature of that kind. The course pursued, of not acting ex pdrte in the premises, was eminently right and proper, independently of any question as to the effect of the pendency of the suspensive appeal, upon the powers of the District Judge.

The judgment of the District Court in the partition suits having been just affirmed by us, this property can now be sold without delay. The co-owners of the plaintiff, made parties to this proceeding only on appeal, have moved for the dismissal of the appeal. The motion is well founded and the appeal is dismissed at appellant’s costs.

In this case W. C. Perrault, District Judge, was called in.

McEnery, J., absent this term.

Bbeaux, J., recused.


text:
    No. 1457.
    State of Louisiana ex rel. Eliza Comeau, Administratrix, vs. The Clerk of the Eleventh Judicial District Court, Parish of Acadia.
    1. It is the duty of the appellant, not that of the clerk of the District Court, to file the transcript of appeal.
    2. An appellant has the right immediately after the perfection of an appeal to demand a transcript of the case from the clerk, and the clerk must lurnish i? within a reasonable time after demand, otherwise he can be compelled to do so by mandamus. If, however, being in default, he, before a mandamus is taken out, tenders to the appellant a transcript duly certified, the appellant can not decline to receive it and mandamus the clerk as if he had refused absolutely to furnish it, on the ground tliat the transcript tendered was so defective that appellant’s appeal might be dismissed on account of its imperfections. It is the duty of the appellant to receive and file the certified record and protect his appeal by easy and familiar methods. Appellant can not collaterally raise and have determined on a mandamus the correctness of the transcript so-tendered. Questions of that character must be raised and determined under different circumstances and conditions. When the clerk, under the circumstances stated, being ordered to file a transcript on the first day of the term of this court, or show cause to the contrary, does so on the day named, an application for a mandamus based upon the contingency of a refusal must be dismissed at relator’s costs.
    y^PPLIOATION for a Mandamus.

      Henry L. Garland for the Relator.

      E. L. Wells and E. P. Veazie for the Respondent.
   The opinion of the court was delivered by

Nicholls, O. J.

Relator avers that a judgment was rendered against her in the suit of C. Comeau vs. Gottlieb Miller and Mary J. Eischer (Widow Miller and A. Adler & Co. third opponents) in the District Court of Acadia, on the 16th June, 1893; that an appeal was granted to her, returnable on the first Monday of July, 1894, instead of the July term, 1893, as the transcript could not be prepared in time for the latter term. That she perfected the appeal by giving bond. That at the time of furnishing her bond she requested the clerk of the District Court to make out the transcript of the case during the summer months of 1893, and she has on many occasions since requested him so to do. That in the month of June, 1894, she was urgent in her requests to have said transcript completed and delivered to her. That on the 22d June, 1894, she received by express the transcript, which was so confused and imperfect that she would not take the responsibility of filing it in the Supreme Court for fear of dismissal of her appeal. That through her attorney she has remonstrated with the clerk as to the informalities and imperfections of this transcript, made up at the eleventh hour, and exhibited to him the rules of the Supreme Court in regard to the preparation of transcripts. That should the record not be filed in the Supreme Court within the legal delays by reason of the district clerk failing to make a new transcript it would not be her fault. In view of the premises, she prayed for further time to bring up the record, for a restraining order suspending the execution of the judgment appealed from, and for a mandamus commanding the clerk of the District Court of Acadia to make a legal transcript of the pleadings filed, proceedings had, evidence adduced, judgment rendered and appeal granted, and bond of appeal in the above mentioned case, and for an order and rule to issue from this court commanding the clerk and the parties to the suit, to show cause why the prayers of relator’s petition should not be granted.

An alternative writ of mandamus, with a temporary restraining order, was granted upon this petition, without prejudice to the other side to move for a dismissal of the appeal.

On the first day of the present term the district clerk filed an answer or return in which, after denying generally all the allegations of the petition, he averred that the appeal referred to was made returnable to this court on the first Monday of July, 1894. That with his answer or return he presented to be filed, a full and complete transcript of all the documents filed, proceedings had, and evidence adduced in the above mentioned cause. He prayed that the writs asked for be denied at relator’s costs..

The court ordered the transcript to be filed without prejudice to ihe right of appellees to move for a dismissal of appeal in the main suit. The district clerk having filed a transcript with his return there is no occasion for a writ of mandamus to issue. Relator, however, insists that the costs of the present application should be cast upon the clerk.

Article 585 of the Oode, of Practice declares, that “ after' the appeal is allowed and the surety given, the clerk of the court from whose judgment the appeal is taken, shall make a transcript of all the proceedings, as well as of all documents filed in the suit, and annex to the same the petition of appeal in order that it may be delivered to the appellee when demanded.”

The appellant has the right at any moment after the appeal has been perfected, to call upon the clerk to make out and deliver to him the transcript referred to, and it is the duty of the latter to comply within a reasonable time thereafter with the demand so made. He is not justified in postponing to the last moment the making out and delivering of the record. It is the duty of the appellant, not the clerk, to file the transcript in the appellate court. C. P. 587.

Article 780 of the Oode of Practice declares that if any clerk shall neglect, fail or refuse to issue any copy, paper, citation, writ, or other process, when so required to do so by any party, or their counsel, authorized to require such service, who has made the proper deposit and complied with the requirements of law authorizing them to require such service from the clerk, such clerk shall, on such facts being brought to the attention of the court in writing, sworn to by the party making it, which shall be served with the order made thereon by the clerk fixing the time for trial thereof, not exceeding two days from the date of the order, be brought to trial, which trial shall be summary without a jury, and if such clerk shall be found guilty of the charge he shall be considered in contempt of court, and be fined in a sum not exceeding one hundred dollars, or imprisoned not exceeding thirty days, or suspended from office, either one or all, and the clerk and his securities on his official bond shall be responsible to any party for any damage that may result from his failure, refusal or neglect to perform any duty required of him by law.

The next article (Art. 781) declares that if any clerk of court fails to comply with any legal formality in issuing citations, petitions, or other process, or if the same be not a true copy or legal in form or substance, no fee shall be charged by the clerk for issuing any such copy or process.

In addition to the protection given to litigants through the above provisions of the law, the clerk may be compelled in proper cases, by writ of mandamus, to fulfil any of the duties of his office which may be legally required of him.

If in the case at bar the clerk of the District Court, after having been asked to make out a transcript of appeal by the appellant, failed to do so in a reasonable time, appellant could unquestionably have forced him to do so by mandamus; but if before such remedy was resorted to the clerk, who had been before in default, complied (though tardily) with his duty, it was too late to have recourse to that particular proceeding. In the case before us, assuming that the clerk failed to have made out the transcript within the time in which it should have been made, he none the less, before relator took action in the matter, tendered the relator a record of the case. Relator says that she would not receive it on account of its utter insufficiency, which might endanger her appeal, and that she would be held responsible for filing such a record.

We think appellant should have received and filed the transcript herself. If there were defects in the transcript, she could have saved herself from any damages in the premises by easy and familiar methods. It would not be proper for us on an application for a mandamus to enter into an examination as to whether a record which had been tendered by the clerk of court as a correct and proper transcript was such or not. Questions as to the sufficiency of the transcript would have to be raised and determined under different circumstances and conditions. Finding, by relator’s pleadings, that, prior to the petition herein, the clerk of the court had tendered to her what he claimed to be a proper transcript in the case, which relator declined to receive; finding that upon being ordered by this court to make a legal transcript in the matter of the suit referred to •on the first day of the present term, or show cause to the contrary, he had, on the day named, filed what he declares to be such a transcript as was ordered, we are of the opinion, as we have said, that there is no occasion for issuing the writ of mandamus asked for and it is hereby refused at relator’s costs.