author: Levy, J.

text:
    No. 8190.
    Mrs. Matilda J. Bowie vs. Samuel M. Davis. On Rule of Thomas P. Farrar, Esq.
    On Motion to Dismiss.
    Appellant obtained an order for both a suspensive and devolutive appeal, but failed to file the Transcript on*the return day. Within the year, however, ho obtained another order for a devolutive appeal, and then filed the bond and Transcript.

      Held that this second appeal is valid and that Appellant’s failure to perfect the first appeal is not an abandonment thereof.
    On the Merits.
    ‘The Curator ad hoc appointed to represent an absent defendant, having in his Answer prayed for afee to be taxed in his favor, and, on the trial of the case, evidence having been offered to show the value of the Curator’s services, contradictorily with the plaintiff, the judgment rendered in favor of the defendant and taxing the Curator’s fee, shall be binding on the plaintiff for the payment of said fee. No special notice of the trial of the Curator’s claim, for said fee needs be given under such circumstances. •
    APPEAL from the Thirteenth Judicial District Court, Parish of Tensas. Hough, J. ,

      F. H. Farrar for the Curator ad hoc, Appellee :
    On Motion to Dismiss.
    First — Under Article 574 C. P., the motion of appeal, made in open court at the same term at which the judgmeut was rendered, operates as a citation of appeal, and is, in fact, a constructive citation. Brickell vs. Connor, 10 A. 235.
    Second — Therefore, under Art. 594, C. P., after appellant has taken an appeal by motion in-open court, he cannot withdraw it, but is bound to prosecute, or to abandon it.
    Third — Where a defendant, after obtaining in open court an order for both a suspensive and. a devolutive appeal, fails to give bond under either, and to file the transcript during the term at which it was made returnable, he will be considered as having abandoned his-appeal, and will not be allowed, after the return day and the delays thereon, even if within the year, to renew his appeal by obtaining a new order, a new return day, and the cancellation of the old order. Dozier vs. Sargent, 4 L. 41; Collins vs. Monticou, 9 A. 39;. Roberts vs. Benton, 1R. 100; Jenkins vs. Bonds, 3 A. 389; Brickell vs. Connor, 10 A. 235;. Williams vs. Leblanc, 15 A. 591; Tarltonvs. Wolford, 15 A. 592; Sue. of Andrews, 16 A. 340; see, also, Redmond vs. Mann, 24 A. 149.
    Fourth — The rule stated above, in No. 3, was the jurisprudence of this State for more than? forty years, when it was overruled, without even a reference to it, in Mortee vs. Edwards, 20 A. p. 236. This last case was by an obiter dictum referred to approvingly in 27 A. 244.
    Fifth — The ground upon which Mortee vs. Edwards proceeds, is in direct violation of Art. 574,. C. P. The one holding that, where an appeal is taken by motion in open court, the bond operates as citation, the other declaring that in such case the motion itself operates-as citation.
    Sixth — Where a conflict of jurisprudence exists, the court will determine the question. de novo.

    On the Merits.
    First — In an action to revive a judgment, no defense can be made, except one which goes to* destroy the existence of the judgment itself, such as want of citation. King vs. Pickett, 32 A. p. 1006.
    Second — All errors of law or of fact which may have been committed by the court which rendered the judgment, have passed into res adjudícala.

    Third — líes adjudicata pro veritate accipitur. It makes white black, and black white, the crooked straight, and the straight crooked.
    Fourth — A curator ad hoc's fee, taxed as costs in a suit, not an attachment suit, against a plaintiff who was cast, was, in 1869, legal under the provisions of section 2 of Act No. 108, of 1857, and the case of Taylor vs. Simpson, 12 A. p. 588.
    Fifth — Where a curator ad hoc, in his answer, filed as such, prays that a fee be taxed in his-favor against the plaintiff as part of the costs in the case, and, on the trial, testimony is-taken contradictorily to fix the value of such fee, and the court, on the face of the final judgment rendered in the cause, rejecting plaintiff’s demand, taxes the fee as costs in favor of the curator, and against the plaintiff, and the plaintiff appeals from such judgment to the Supreme Court where it is affirmed, the judgment is final and irrevocable, and cannot be attacked in any manner, whether directly or collaterally. To contend that such a judgment, as to the curator's fee, is one rendered without citation, is to trifle with the court.

      Steele & Garrett for Mrs Bowie, Appellant:
    On Motion to Dismiss.
    An appeal is made by obtaining an order and “upon offering to give such security as the court may direct,” but an order without the bond is no appeal. C. P. 573.
    Where no bond has been given there has been no appeal, and there can be no abandonment, no matter how many orders have been granted. 20 An. 236; 27 An. 244; 28 An. N. R„ Edwards vs. Ricks.

      Where an order of appeal was granted upon motion in open court, hut the appeal was not perfected by giving bond, the appellant may at any time within the year claim the right to a devolutive appeal, by a petition to the District Judge, withdrawing the previous-order and obtaining a new order of appeal. C. P. 595. The appeal under the second order will not be dismissed upon the ground that the appellant abandoned the appeal, by not filing the record within the time fixed in the first order.
    The right to appeal being constitutional, the law should be construed liberally in favor of the • appellant. 1 An. 414; 11 L. 382.
    On the Merits.
    A void judgment cannot be revived. 30 An. 363, 692; 32 An. 1006.
    In a suit to revive a judgment, the defendant may allege and prove any fact showing the nullity of the judgment. It is essential to the revival of a judgment that there should be a valid and subsisting one; which is a fact for plaintiff to establish. Conery vs. Rotchford,. Brown & Co., 30 An., 692; 32 An. 1006.
    The decree taxing as costs $1500 to be paid by plaintiff, in favor ot the curator ad hoc, representing an absentee in an ordinary suit, rendered without notice or rule upon the party condemned, is absolutely null. Cooley vs. Beauvais, 9 L. 85; Whitney & Dxvs. O’Bearne et al., 6 L., IN. S., 169 ; Pontalba vs. Pontalba, 2 L. 466.
    Where the amount of the fee as curator ad hoc, as taxed in the judgment, has been paid to • him by either plaintiff or defendant, for services in that suit, the judgment in that respect is satisfied and cannot be revived on motion of the curator ad hoc.
    Where the judgment is such that in good conscience it ought not to be executed, and the-defendant shows that he is without other remedy, a suit to revive will be controlled by those equitable principles which exist and may be enforced independently of the textual: provisions of the Code.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Levy, J.

Appellee moves to dismiss this appeal on the following-grounds:

1st. Because appellant obtained on November 5th, 1880, on motion-in open court, an order for both a suspensive and devolutive appeal,., returnable to the Supreme Court on the 2d Monday of November, 1880,. and failed to file the record in this Court on said return day, or within three judicial days thereafter, which failure operated an abandonment of said appeals, both suspensive and devolutive, and for this reason, the • second devolutive appeal, taken by petition by appellant on 10th July, 1880, was illegal and of no effect, the judgment appealed from having-become final and irrevocable by said abandonment.

2d. Diminution of record.

By consent of parties, the second ground has been abandoned.

“ The inability or the omission of the plaintiff to furnish a bond andfulfil the condition precedent on which a suspensive appeal was granted,, did not preclude the party from applying within the year for a devolutive appeal. The jurisdiction of this Court attaches only when the-bond is filed.” 2 An. Gibson vs. Selby, 630. See, also, 15 An. 592; 20 An., Mortee vs. Edwards, 236.

“ Appellant gave no bond under the order for a suspensive appeal, 'but gave bond after getting an order for a devolutive appeal. This was not an abandonment of an appeal. There is no appeal until the bond is given, it matters not how many orders of appeal have been granted.” Bank of America vs. Fortier, 27 An. 244.

The motion to dismiss is denied.

On the Merits.

This suit is one for the revival of a judgment.

In October, 1868, Mrs. M. J. Bowie brought a petitory action in the District Court of the parish of Tensas against Samuel M. Davis, a nonresident of the State, claiming the ownership of an estate, known as the “ Franklin Plantation,” valued at $50,000. She asked for the appointment of a curator ad hoc to represent the absentee, and under her prayer Thomas P. Farrar, Esq., was thus appointed.

In this capacity as curator (he being a practising attorney at law), he defended the action, filed an answer, in which he prayed that a fee of $1500 be taxed in his favor against plaintiff as costs in the case. The cause was tried, and on the trial evidence was taken, contradictorily with the plaintiff, to show the value of the services of the curator ad hoc. On November 2d, 1869, the following final judgment was rendered and duly signed: “It is therefore ordered, adjudged and decreed, that there be judgment final for defendant and against the plaintiff, quieting said defendant in his title to and possession of the Franklin Plantation in this parish, and that the plaintiff pay the costs of this suit, to be taxed, and on motion and due proof made, it is further ordered, adjudged and decreed, that the sum of fifteen hundred dollars be, and it is hereby taxed, in the costs of this suit, in favor of Thomas P. Farrar, Esq., as curator ad hoc, appointed by the Court, to represent the defendant, being the value of his professional services rendered in this suit.” From this judgment plaintiff appealed to the Supreme Court of this State, and that Court affirmed said judgment.

On April 21st, 1879, Thomas P. Farrar brought suit to revive the above judgment in his favor. On October 24th, 1879, defendant appeared and excepted that Davis was a necessary party, and on the same day Farrar made Davis’ heirs parties by supplemental proceedings-. On November 5th, Mrs. Bowie filed a plea of no cause of action and the plea of prescription of ten years. These exceptions were referred to the merits. On the same day she filed an answer in which she reiterated the grounds set forth in the exceptions, and averred among other things that the curator’s fees could not be legally taxed against her in the ■original suit; that she was not bound therefor; that the same had been paid by the defendant; that the judgment in favor of Farrar is null and void because she was not cited to answer his demand; and because no attempt had been made to execute the judgment, although both Davis and Mrs. Bowie were solvent.

There was judgment reviving the original judgment, from which Mrs. Bowie has appealed.

The grounds on which appellants rely for a reversal of the decree-are these:

1st. That the judgment sought to be revived had been paid and extinguished in so far as the same was valid, to wit: by the payment of the costs.

2d. That as to that portion of the judgment sought to be revived, viz: that which pretends to condemn plaintiff to pay to Thomas P, Parrar, Esq., curator ad hoc, for services rendered against her, the sum of $1500, the same was null and void upon the face of the record.

3d. That this decree was rendered in an ex parte proceeding, without citation, notice, or rule upon the party condemned.

1st. The payment of costs other than those taxed as fee or costs of the curator ad hoc, is not disputed, and, indeed, seems to have been admitted by all parties.

2d. As to the nullity of that portion of the judgment allowing to the curator ad hoc the sum of $1500 for services rendered in defence of the suit, we think it authorized and justified by Act No. 108 of 1857, which was in force at the date of the judgment sought to be revived. In that act, there is no limitation of the appointment of curators ad hoc and attornexjs ad hoc to cases of attachment, but it applies to all cases in which there were absent defendants. And in Sec. 2 it is declared: “ That attorneys thus appointed, as provided in the preceding section, shall be entitled to the sum of ten dollars, as a fee, to be taxed as costs, which, upon application and proof to the Court, may be increased in proportion to the services rendered.” All the requirements of law in this case seem to have been fully complied with. The appointment of Mr. Parrar as curator ad hoc of the absent defendant was asked for by the appellant herself. He in his answer to her petition specially prayed for (made application) for the allowance of the sum of $1500 for his services as such curator, to be taxed as costs, and due proof, on trial, was made as to the value of the services — Mrs. Bowie was a party to the proceedings; the answer made up the issue; the trial of the whole ease, including the application aforesaid of the curator ad hoc, was had contradictorily with her and being thus before the Court, no mere-formal service of rule or citation was necessary.

Further, we find nothing to support the allegations or position of the appellant that Davis had paid this sum of $1500. On the contrary, the evidence satisfies us that the $1500 taxed as the costs of the curator •ad hoc for his services rendered in the original suit in the lower court, have never been paid. Davis when he paid Farrar the sum of two thousand dollars did so. in consideration of services rendered on the ■appeal from the original judgment and for other services in other professional employment, and particularly declined paying that amount but ■contended that it should be paid by Mrs. Bowie.

The judgment appealed from is affirmed with costs.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 8194.
    Leon Labat & Co., in Liquidation, vs. Widow Lenfroy Décuir.
    Appeal dismissed for want of a proper certificate from the Clerk, and for the want, in the record, of a note of evidence, a statement of facts and an assignment of errors.
    APPEAL from the Fifteenth Judicial District Court, parish of Pointe Coupée. Toist, J.

      Haralson & Claiborne, and Chas. W. DuRoy for Defendant and Appellant.

      A. L. Mahondeau and O. O. Provosty for Plaintiffs and Appellees;
    The olerk should certify unqualifiedly in conformity to Art. 896, C. P., that the transcript contains all the testimony adduced. If the clerk cannot so certify, and there has been no statement of facts prepared, no bill of exception or special verdict taken, and no assignment of errors filed, the appeal must be dismissed. 16 An. 84, Watson vs. Jones; 11 An. 604.
    Where the record contains no note or memorandum of the evidence adduced on the trial, the clerk is without power to certify that the transcript contains all the evidenoe adduced and testimony heard on the trial. Cooley vs. Broad, 29 An. 71.
   Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

Plaintiffs and appellees move for the dismissal of this appeal, on the following grounds:

1st. That the record contains no written note of the evidence offered and received on the trial.

2d. That it contains no statement of the facts agreed upon by the parties or made by the judge.

3d. That it contains no bill of exceptions or assignment of errors.

4th. That it is not certified to by the clerk, as containing all the testimony adduced on the trial.

The clerk certifies in substance as follows:

“ That the foregoing twenty-four pages do contain a full, true and correct transcript of all the proceedings had and documents filed on the trial,” etc. The certificate makes no mention whatever of the evi■dence, if any was offered or admitted on the trial. In the body of the «record we find the copy of two promissory notes, and of an act of mortgage, with which they are identified, which are made part of the 'petition, and which as such were filed on the same day as the petition. But nothing in the record shows that'either the notes or the act of mortgage were admitted and considered as evidence by .the judge a quo; mor does the record show whether any evidence at all was offered and .-admitted at the trial of the cause.

We fail, also, to find in the record any statement of facts agreed -upon between the parties or made by the judge, and appellant has not ¡.attempted to supply these numerous and fatal deficiencies by an assign■ment of errors allowed under the provisions of Art. 987 of the Code of Practice. We can only exercise our jurisdiction in so far as we have knowledge of the matters argued or contested below, C. P. 895; and appellant, in this case, has utterly failed to impart or charge us with this knowledge by any of the modes pointed out by law.

As was well and tersely said by Chief Justice Manning, in the case of Cooley vs. Broad, 29 An. 75, in which the appeal was dismissed for errors less grievous than are shown in this case. “ There is nothing which can inform the court of the merits. We cannot reverse the decision of the lower court, as the appellant desires, because the record filed by him does not afford us any means of ascertaining that it is wrong. We cannot affirm it, though the legal presumption is in favor of .its correctness.” The only alternative is in the dismissal of the appeal.

It is, therefore, ordered that this appeal be dismissed at appellant’s - costs.


text:
    No. 4598.
    Mrs. Lucy L. Mann vs. Benjamin L. Mann.
    Tlie mere misunderstanding by counsel of remarks made by tlie Court, cannot afford legal reasons or excuses for not taking time by action in judicial proceedings.
    Judicial records cannot be impeached or contradicted by verbal evidence.
    APPEAL from the Sixth Judicial District Court, parish of Tangipahoa. Ellis, J.

      B. H. Marr for Plaintiff and Appellee:
    UTirst — Opposition to tlie homologation of a partition must be made in writing, within the legal delay. C. P. 1030; R. C. C. 1375.
    ;■ Second — The party aggrieved by a judgment of homologation, can be relieved only by new trial; and a new trial cannot be granted to one who has permitted a judgment of homologation to be pronounced without opposition. Lang vs. Creditors, 14 La. 240; Succession of Maoarty, 3 An. 384.

      Merrick, Bace & Foster for Defendant and Appellant:
    First — Tke court may, in its sound discretion, grant a new trial ex officio, C. P, 547• Gale vs. Kemper’s Heir, 10 La. 209.
    Second — This discretion must be a legal discretion. 3 H. S. 100; 4 H. S. 132.
    Third — Where, by use of reasonable diligence, the party could not have known that the court would take up the case, a .new trial should be granted. Biley vs. City of Louisville, 3 An. 965.
    Fourth — A new trial should always be granted to obtain the ends of justice, 1 Bob. 192 j Wilkins vs. East Baton Bouge, 10 Bob. 57.

    Fifth — A new trial must be granted when there are good reasons therefor. C. P. 558 ¡ 10 Bob. 57.
   The opinion of the court was delivered by

Levy, J.

This appeal is taken from a judgment overruling a motion of defendant to set aside a judgment homologating a partition made in the above entitled suit.

Appellant contends that the refusal to set aside the judgment, practically refusing a new trial of the homologation, works an injustice because he had prepared and was ready to file his answer or opposition, and he failed to do so, because his counsel was under the impression that the court would transact no business on the civil docket during the term at which the judgment of homologation was rendered, and this impression was created by remarks which he understood the presiding judge to make to that effect. There is conflicting testimony in regard to the matter; the judge himself declaring that he had made no such remark and given no such intimation. It appears that the notarial act of partition, made under order of court, was filed on the 5th August, 1872; and on the same day plaintiff filed a petition, on which the court granted an order, requiring defendant to show cause in ten days after service why the partition should not be homologated. Service was made on defendant, in person, by the sheriff of the parish of Orleans, the place of his residence, on 19th November, 1872. On 15th January, 1873, nearly sixty days after service, the motion to homologate was fixed for trial. There was no appearance by defendant, no answer, exception nor opposition.

The mere mistake, misunderstanding or misapprehension by counsel of remarks made by the judge cannot afford legal reasons for or excuse them for not taking timely action in urgiDg objection, oppositions, or filing answers. Besides, as to proceedings had in open court, it has been frequently held that the minutes of the court are conclusive as to the fact, and the nature thereof. Judicial records cannot be impeached or contradicted by verbal evidence. Green vs. Reagan, 32 An. 974; 3 An. 631.

The judgment appealed from is affirmed with costs.


author: Bermudez, C. J.

text:
    No. 7801.
    Succession of Antoine Mitchell.
    'The process-verbal of the family meeting advising the purchase ol' real estate for a minor, is not a sufficient warrant for the tutor, if not homologated by the Court, and the purchase, in that case, does not bind the minor.
    ‘The subsequent approval and homologation of the tutor’s account, in which the purchase is charged to the minor, cannot validate the act of the tutor done without legal authority.
    ‘The taking of possession by the minor at his majority, of the property thus purchased, is no ratification of the act of the tutor, unless an account of the tutorship with the vouchers, as required by law, has been previously rendered to him.
    'The -minor, emancipated by marriage, has only a power of administration over her property*
    '"When a tutor has been also administrator of the succession of his ward’s parent, he cannot in rendering his account of tutorship, engraft upon it the homologated account of hia administration of the succession. The latter is not binding upon the minor,
    APPEAL from the Parish Court, parish of East .Feliciana. Brame, J.

      K. A. Cross for the Appellee.

      W. F. Kernan and T. B. Lyons for the Tutrix, Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

Antoine Mitchell was murdered, in 1870. He left a widow and a minor daughter. The property, in his name, composing the community between him and his wife, was appraised at $30,644. His life was insured for $10,000 in favor of his daughter, and for $2000 for account of his wife.

His widow qualified as administratrix and as tutrix. Mitchell having left no will, his widow took possession as administratrix, and continued in such as usufructuary of his half in the community. The amounts due under the policy were paid.

She proceeded, in the capacity of administratrix, to the settlement of his succession, rendered an account, showing a condition of its affairs, which was subsequently homologated by the court. No notice was given of it to the under-tutor of the minor.

For the purpose of disposing of the $10,000 accruing to her daughter, she, in her capacity of tutrix, applied for a family meeting, which was held, and advised the investment of the money in lots and in buildings to be constructed upon them, in the town of Clinton, La. The proces verbal of deliberations was filed, but no order was rendered touching it by the judge. The tutrix, nevertheless, proceeded to the purchase of the lots and to the erection of the improvements; but not so, however, as to absorb the amount in her hands. The property was rented and yielded revenue.

The tutrix rendered, in the course of time, an account of tutorship, •showing the investment of the money, and stating the condition of the business of the minor. This account of tutorship was approved contradictorily with the under-tutor.

The minor married on December 20th, 1877. Subsequently, she called for an account of tutorship from her mother and tutrix, which was rendered to her. That account includes, by reference, the .two-accounts previously rendered by Mrs. Mitchell as administratrix and as tutrix, and mentions the investment of the amount realized under the life insurance policy. It states the rents collected, charges the taxes paid thereon, and also the items for the personal expenses of the minor,, for board and tuition, wearing apparel, etc.

This account was generally opposed by the emancipated minor, who also attacked the two previous accounts. She distinctly charges the nullity of the investment of the life policy proceeds in the lots and buildings, as having been made without legal authority, and concludes by praying that all said accounts be rejected, and that she recover from her mother and tutrix the said sum of ten thousand dollars, with legal interest from the date of her marriage.

It appears that, on the day of trial, the tutrix moved to be permitted to amend her account, so as to charge therein the sum of $7460,. which she stated her husband had received from her mother’s succession for her account. To the refusal of the judge to permit the amendment, a bill of exception was taken, and is insisted upon; but the view which we take of this case will not render a decision of the point necessary or useful.

The account asked by the married daughter was merely one of' tutorship. The tutrix had no right thus irregularly to engraft upon it her account as administratrix, which was not called for, and which can only be rendered when the usufruct determines, or when specially ordered by the court, unless the''usufructuary desires formally to render one in a direct proceeding, contradictorily with her daughter, for the purpose of establishing their respective interest in the community residue. The account, as rendered, was and is not binding upon the emancipated minor. 15 An. 121.

It is settled that it is optional with such usufructuaries either to sell the property of the community to discharge the debts, or to retain the property and pay the debts, subject to an ulterior settlement and adjustment of rights. 3 An. 489; 4 An. 385, 389.

Whatever may be the rights of the widow for having páid debts chargeable to the community, she cannot debit these to the minor, for whom the law has accepted the succession under benefit of inventory only; but the widow has a right to charge the minor with,what she may have paid after the dissolution of the community for account of the-minor, and which the latter was liable for, and realize it from her money or property.

We will not, therefore, consider the account of administration as. presently being before the Court, as whatever the judgment be which: woulcl be rendered upon it, it would be susceptible of actual enforcement,. neither against the usufructuary nor against the minor. We will, therefore, eliminate all mention of it from the account of tutorship rendered to the minor, emancipated by marriage.

The item of $3089 09, placed in that account to the credit of the minor, as due by the tutrix, as shown by the first account of tutorship, must also be stricken from that account, as it represents what the tutrix considers to be the balance in her hands after the investment of the $10,000 in the lots and buildings, and application of the revenues of the same to the payment of taxes and of the minor’s personal expenses.

The tutrix had no authority to invest the $10,000 in the manner she-did. The law is clear that a tutor cannot purchase immovable property for the minor without the authority of the judge, granted on the advice of the family meeting. R. C. C. 353; 10 L. 328. The case in 11 An. p. 593, has no parity with the present one.

It was not enough for the tutrix to deposit in court theprocés verbal of deliberations, with a petition for its approval. She should have obtained its homologation before acting. It was an essential condition precedent, to screen her from personal responsibility. 32 An. 97; 5 R. 287; 4 An. 85; 11 An. 247, 593; 6 L. 212; 1 N. S. 324; 2 L. 328; 18 An. 24; 30 An. 1131; R. C. C. 1866, ’67.

But it is claimed that the investment was ratified by the court and by the emancipated minor.

The first account of tutorship presented by the tutrix mentions, it is true, the fact of the investment, the cost of the construction of the buildings, the revenue of the property, the taxes paid thereon, and shows a balance in favor of the minor. It is approved and homologated upon the consent of the under-tutor; but this action of the court could not have the effect which the decree of homologation of the deliberations of the family meeting would have produced had it been rendered-It could have no retroactive effect to vivify and validate an act which was prohibited by law. It could serve as no shield to the tutrix, and is no estoppel to the minor.

It is likewise true that the lots and buildings were delivered to the. emancipated minor after her marriage, and that she has since collected’ the rental thereof; but this cannot be construed into a confirmation or-ratification by her, for several reasons. It is not shown that she was-made aware of the irregularities, or knew of them, when she accepted-delivery. It is not shown that before any understanding or agreement of that sort intervened, her tutrix had rendered her an account, accompanied with vouchers ten days before. It is not alleged, and still less proved, that she was fully emancipated. She is still a minor, not having as yet attained the age of majority.

Her marriage did not relieve her from the disabilities which attach to minors, and did not vest her with the power and right of doing and performing all acts as validly as if she had attained the age of twenty-one years. She could not, this day, mortgage or alienate real estate, or even accept a special mortgage from her husband, without the consent of a family meeting and the authority of the judge. Her powers are of administration only. R. O. C. 384, 373, 385, 1867, 1866, 2279, 2280; 3 L. 365,492; 9 R. 36; 9 L. 571; 5 An. 692; 8 An. 513; 14 An. 691; 15 An. 505.

Not having obtained the homologation of the deliberations of the family meeting, the tutrix has made herself responsible for the consequences attending the omission. She has acquired the property not for account of her minor daughter, but for her own. She is liable not only for the sum received, but also for interest on the same. R. C. C. 347.

The minor, however, has claimed it from the date of her marriage only. She has thereby abandoned all claim to it for the time intervening between the day the sum. was collected and that of her marriage. The amount thus waived must be considered as absorbed by the personal expenses of the minor. R. O. C. 350.

This view of the case dispenses us from passing upon the correctness of the items for such expenses charged to the minor in the accounts.

Erom the fact that the investment of the money in the lot and buildings, in the name of the minor, is not recognized as legal and valid, and that the amount is charged to the tutor, with interest from the date claimed, it follows that the rents and revenues of the property, less charges of administration paid, must be accounted for by the emancipated minor to her mother and tutrix.

The account of tutorship last rendered by the tutrix does not meet the requirements of the law. A new and entirely different one must now be rendered. She must charge herself in it with the 110,000, with legal interest since December 20th, 1877, and debit the minor with all amounts due by her for rents of the property, less charges, with legal interest from time of receipt until return of possession to the tutrix; the commission on the revenues of the minor due the tutrix; the cost of rendition of the account of tutorship; the amount due in endeavoring to bring to justice the murderer of the deceased, and the like, incurred after the death of Mitchell, and which may be due by the minor. R. O. O. 360,1398; 349, 359, 966.

The rights which the widow, individually, as administratrix, as usufructuary, may have against the property composing the community assets, her rights to her share thereof as joint owner, as well as those which the emancipated minor has, in and to the same and otherwise, as beneficiary heir, are expressly reserved, to be set forth and vindicated when a proper opportunity shall offer. 30 An. 268; 31 An. 741.

The judgment of the lower court rejects the accounts of tutorship, annuls the investment of the ten thousand dollars in the lots and buildings; condemns the tutrix to pay that sum, with legal interest from the 20th December, 1877; recognizes the minor’s mortgage; admits the administratrix as a creditor of the community, after striking from her accounts as such and as turix a number of items; reserves her rights on final settlement at the termination of the usufruct; amends the accounts in some particulars, and finally homologates the accounts as amended.

It has passed upon matters not properly before the court. It is correct in several of its parts; but how can it reject the accounts, and afterwards amend and homologate them ? If the account of tutorship is rejected, a new one should be rendered and substituted, on the basis upon which the court finds, and which the rights and obligations of both the accountant and her emancipated daughter, under the same, demand, subject, in case of conflict, to judicial investigation and adjustment.

We think that the ends of justice require that this case, on the application of Mrs. Whitaker for an account, should be remanded. It would complicate matters to affirm in part, amend in part, and reverse in part, the judgment of the lower court.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be reversed; and proceeding to render such judgment as should have been rendered by the lower court,

It is ordered, adjudged and decreed that the opposition of Mrs. Whitaker to said account be sustained, to the extent that said account be rejected, and that the petition for its homologation be dismissed.

It is further ordered, adjudged and decreed that Mrs. Mitchell, as tutrix of her said emancipated daughter, Mrs. Whitaker, do render to her another account of tutorship, in conformity with the views herein expressed and according to law; and to that end,

It is ordered that this ease be remanded to the lower court to be further proceeded with according to said views and according to law.


text:
    No. 8118.
    The State of Louisiana ex rel. Widow Harper vs. The Judges of the Court of Appeals for the Parish of Orleans.
    The Courts of Appeals are, under Article 90 of the Constitution, amenable to the supervisory authority and power of the Supreme Court, like all the other tribunals of the State, and, in that respect and for that purpose, they are inferior Courts.
    The Court of Appeals for the Parish of Orleans has jurisdiction of oases in which the amount involved is exactly $1000, exclusive of interest.
    APPLICATION for a Mandamus.

      W. 8. Benedict for the Relatrix.

      W H. Rogers and Frank McQloin, Judges of the Court of Appeals for the parish of Orleans, Respondents, for themselves.

      F. F. Moise, Amicus curice, on the side of the Respondents.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus to compel the Judges of the Court of Appeals for the parish of Orleans to entertain jurisdiction of, and determine a case in which the amount involved is exactly one thousand dollars, exclusive of interest, which was removed from this to that court, to be “ there disposed of according to law,” and which the respondents, considering that it does not appertain to their jurisdiction, have refused to try and have stricken from their docket.

The elaborate, learned and argumentative return made by the respondents, in justification of their conduct, draws in question both the jurisdiction of this Court over the Court of Appeals, in the parish of Orleans, under Article 90 of the Constitution, and the correctness of the ruling -of this Court referring the cause to them for trial and decision.

I.

It is claimed that the Court of Appeals for the parish of Orleans is not an inferior court, but that it is an appellate tribunal, whose jurisdiction Is “ superior or supreme and final in all matters legitimately within its compass. It is further urged that, as this Court has no appellate jurisdiction over said Court of Appeals, it cannot issue any mandamus or other remedial writ to it.

The Constitution of 1879 expressly provides, that the judicial power shall be vested in a Supreme Court, in District Courts, in Courts of Appeals, in city courts and in justices of the peace. Art. 80.

The Constitution, Art. 90, distinctly provides, that “ the Supreme Court shall have control and general supervision over all inferior courts. They shall have power to issue writs of certiorari, prohibition, mandamus, quo warranto, and other remedial writs.”

If the Court of Appeals for the parish of Orleans, viewed from the standpoint from which the framers of the Constitution have considered Courts of Appeals generally, itself included, be not an inferior court, compared to the Supreme Court of the State, to which article 90 refers, the necessary and irresistible consequence is, that its jurisdiction surpasses or equals that of this Court.

We do not understand our learned brothers to mean that the court, which has the honor of being presided over by them, is clothed with power to review, as an appellate court, the rulings of this Court, in cases determined by it, (not even in the instant case); or to adjudicate, as a court of concurrent jurisdiction, upon matters which, under articles 81, 90 and others of the Constitution, fall within the sphere in which the authority of this Court can be exercised.

If, then, the Court of Appeals for the parish of Orleans be neither superior nor equal, the unavoidable inference is, that it is inferior to this Court. There is no middle ground to stand upon that we can discover.

That court, no doubt, is an appellate tribunal, whose jurisdiction is “ superior or supreme and final ” in all eases coming to it, on appeal from the District Courts, and in which the matter in dispute exceeds •two hundred but not one thousand dollars, exclusive of interest; but in that respect and in those cases only is it such.

It is anomalous, however, that District Courts, which can adjudicate in legal controversies in which millions may be involved, must be undisputably considered as inferior courts, while courts whose jurisdiction is limited to one thousand dollars, must be recognized as courts of “ superior or supreme and final ” jurisdiction; but this only serves to show that the superiority, or supremacy, or inferiority of said courts, is confined to themselves, and is of a purely relative character.

Courts of Appeal are undoubtedly “superior or supreme,” when they exercise their appellate jurisdiction in cases coming to them on appeal from the District Courts. They can, in aid of such jurisdiction, issue to the latter the necessary remedial writs, (Arts. 104,128); but they cannot be considered such when compared to the Supreme Court, whose .unequalled, and, therefore, unsurpassed appellate and supervisory jurisdiction extends over and embraces as well district as all the other courts known to the Constitution and to the laws of the State, which are ■ all necessarily inferior courts.

The error in which the respondents have fallen is easily accounted for, when it is considered that they lay much stress to support their position on article 839 of the Code of Practice, which provides that “ it is only the court which exercises appellate jurisdiction over an inferior court that can direct to the latter an order to perform any of the duties belonging to it.” They have evidently been misled by the assumption that this provision of law, notwithstanding article 90 of the Constitution, shackles our supervisory jurisdiction.

If it were true that this Court was not vested with supervisory jurisdiction over Courts of Appeal, because it has no appellate' jurisdiction over them, the same would be equally true, for the same reason, as to-District Courts, in cases in which the matter in dispute would be more than one hundred and less than two hundred dollars, as to city courts, as to justices of the peace, as to committing magistrates; and the supervisory control and jurisdiction of this Court, instead of being “general”' over all, would be special, and restricted to some inferior courts in those cases only in which it would have appellate jurisdiction; then it-would possess and exercise no greater powers than were held by the-Supreme Courts which preceded it; and article 90, which was designed, to expand its jurisdiction to cases over which the previous courts were-powerless to prevent denial of justice or usurpations of authority, would be a superfluity incorporated to no purpose in the organic law, and should be obliterated; then this Court would have exceeded the ■bounds of its jurisdiction in the already numerous cases, in which it has-exercised that supervisory control and general power. 32 An. 552, 549, 774, 719,

We cannot yield to such conclusions.

Although it should not be, and is not, claimed that article 839 C. P, was absolutely abrogated by the Constitution, it must nevertheless be considered as inoperative whenever it comes in conflict with article 90, to which it cannot prove obnoxious.

In an analogous case, 32 An. 552, we have considered that question, and have decided that this constitutional provision had emancipated this Court from the restraints placed upon the powers of the former Supreme Courts, which had appellate jurisdiction only, to issue remedial writs to- inferior courts, and that this Court has authority now to issue such writs in all cases covered by the Code of Practice.

Acting in the sound exercise of the general supervisory power clearly vested in us by article 90, we have in several cases, after grave-deliberation, entertained jurisdiction under it, refusing or granting remedial writs to inferior judicial officers. 32 An. 549, 553, 719, 774 and others not yet reported.

In the case of the State ex rel. Cobb vs. Judges, 32 An. 774, we have issued a mandamus directing judges of a Court of Appeals to proceed to the trial and determination of cases which they supposed were to be-decided by another tribunal, and we have the satisfaction of knowing-that our mandate was acquiesced in and has been carried out.

All doubts on the question of our control and general supervision over all inferior courts, the Courts of Appeal included, must at once-vanish on the mere reading of article 200 of the Constitution, which provides : that “ for any of the causes specified in article 196, judges of' the Courts of Appeal, of the District Courts throughout the State, and of the city courts of the parish of Orleans, may be removed from office-by judgment of the Supreme Court of this State, in a suit instituted by the Attorney General, or a district attorney, in the name of the State,, on his relation.”

If they were not inferior courts, how could the judges thefeof be-made amenable to the jurisdiction of this Court in such a case?

Act 122 of 1880.

II.

It is manifest that by articles 81, 95,128 and 129, the Constitution guarantees the right of appeal to two courts : where the matter in dispute exceeds two hundred, but not one thousand dollars, to the Court-of Appeals ; where it exceeds one thousand dollars, indefinitely, to the Supreme Court.

We have reviewed our elaborate opinion in 32 An. 597, as well as the-numerous authorities from which substantial extracts have been copiously embodied in the able.return of our learned brothers, the respondents, and which had already received our attention, together with many others, to which we have referred when we first investigated and determined the vexed question which is again agitated.

We feel, after such review, more convinced of the correctness and propriety of our ruling, and, therefore, far from departing from it, we-expressly now confirm it, trusting that the matter will henceforth be-considered as well set at rest.

We have in four different cases decided that suits of the description of that before us could not be tried in this Court, but fell within the-jurisdiction of the Court of Appeals for this parish and should be tried by it. 32 An. 597, 603 ; cases Nos. 6396, 7614 and 6299 of the docket of this Court.

Our decree transferring the cause in which the relatrix is concerned to the Court of Appeals of the parish of Orleans, “ to be there disposed of according to law,” was intentionally couched in unambiguous and comprehensive language, so as to be ample authority for further proceedings by that court in that case and in similar eases.

We can well appreciate the conscientious scruples of our learned brethren, which reflect creditably upon them: the more so, as in advance of any determination of the issue before us, they have, in that honorable spirit of conciliation and harmony which should always animate and characterize those to whom the law of the land has entrusted the-grave responsibility of the administration of justice, felicitously announced their willingness-and readiness to conform with our views without unnecessary delay. We trust that when so doing, under the express mandate of this Court, the responsibility of which rests upon us and which leaves no further discretion, the consciences of our brethren, far from disquieting, will justify them in the fulfilment of the duties thus declared to be imposed upon them.

We think that the remedy sought should be allowed.

It is, therefore, ordered that the alternative mandamus herein issued be made peremptory, and, accordingly, that the respondents do reinstate the case mentioned on their docket, and do proceed to try and determine the same in all respects as the law provides.

Levy, J., absent.


text:
    No. 8176.
    Board of Liquidators of Hart & Hébert vs. A. H. Huguet et al. F. Formento, Interventor.
    Creditors, who accept a voluntary assignment from their debtor, of the latter’s property, at a certain appraised value, much exceeding the amount of their claims, are estopped, in the absence of error or fraud, from afterwards alleging the insolvency of the debtor at the moment of the assignment.
    Such creditors are, therefore, precluded from bringing tbe Revocatory action against the said debtor and his vendee of some property not included in the assignment.
    APPEAL from the Seventeenth Judicial District Court, Parish of East Baton Rouge. Sherburne, J.

      Sami P. Or eves and PL M. Favroi for Plaintiffs and Appellants:
    The effect of the registry of a notarial act in the conveyance office, is to give notice to the world of the provisions therein contained. This effect is produced from the day the act is deposited for registry with the recorder. R. C. C. 2254, 2264.
    A counter-letter affecting the transfer of real estate has no effect against creditors or bona fide purchasers, unless registered. R. C. C. 2239; 3 R. 439; 9 An. 69; 12 An. 622.
    If the real owner of property allows it to stand recorded in the name of another by a title translative of property, and that other fails in business, it becomes the common pledge of his creditors. 29 An. 604.
    During the pendency of a revocatory action, or one in revendication of property, no alienation thereof can be made to the prejudice of the claimant. R. O. C. 2453, Act No. 3, of 1878, p. 31, re-enacting same; 13 L. 260 ; 9 An. 257; 16 An. 280.
    In a revocatory action based upon fraudulent disposition of property by the debtor, where plaintiff shows his liabilities, it is incumbent on those opposing the alienation to show property to an equal or greater amount. R. C. C. 1985; 2 N. S. 68; 4 N. S. 652; 2 L. 16.
    A preference given to one creditor, even ignorant of the debtor’s insolvency, is a fraud on the other creditors. 2 L. 18; 8L. 3C8; 14 L. 367 • 30 A. 512.
    Knowledge of the agent or attorney is knowledge of his principal. Story on Agency, 451, 140, p. 159.
    Where prescription of one year is plead against plaintiff’s 'action, it is the time within which it is brought which is the test, and not the sufficiency 'of the allegations which, support it. 27 A. 715.

      'The plea of discussion cannot be renewed after defendant bas not only suffered but provoked a trial on the merits oí a revocatory action. B. C. 0.1973.
    A donation inter vivos, cannot be made by proxy, particularly where it does not appear that the power of attorney is executed in authentic iorm. Such a donation confers no title to donee of immovable property. B. O. C. 2996,1540, 1542,1543.

      A. S. Herron, Head & Goodale, for Defendants and Appellees; and Head & Goodale for Intervenor:
    In order to sustain a revocatory action it is necessary to prove: 1. Insolvency; 2. Fraud; 3. Injury; 4. Knowledge.
    It is the value of the debtor’s property at the date of the sale complained of, and not its subsequent value, that determines the question of solvency.
    Where creditors accept the property of a debtor at fixed values, the aggregate of which exceeds the entire indebtedness, and discharge the debtor, reserving the right to attempt to recover certain property transferred previously by such debtor, such reservation is invalid on its face.
    ■While the XT. S. bankrupt law was in operation the State insolvent laws were suspended, and conventions between debtors and creditors, looking to the discharge of the former, were not ipso facto proof of insolvency, but must be judged on their merits.
    In cases analogous to a cessio bonorum creditors must show that they have exacted from the debtor all the property allowed by law before they can pursue property previously transferred by the debtor. Liberality in such a oase is fatal.
    'The true test of insolvency .is not the immediate inability of the debtor to pay his debts in cash, but it is the comparative value of his debts and assets, whenever the alleged insolvency is said to have taken place.
    Good faith is always presumed. The burden of proof is on him who alleges bad faith. JBridgeford & Oo. vs. Simonds et al., 18 A. 123.
    The names of all the principals must be disclosed as plaintiffs by one bringing suit as agent for several parties. 24 A. p. 18- An amended petition, setting forth the names of the principals, is too late if filed after prescription is acquired.

      u When the mortgageor holds by a title apparently legal and valid, which is properly inscribed in the public records, the mortgagee in good faith is not affected by fraud, - or simulation, or want of consideration between the mortgageor and his vendor.” 32 A. 420; 11 La. 408; 26 A. 467. ,
    ’There is ho notice to the world of any rights reserved by notarial act against real estate by record of same in the conveyance book of the parish. Such reservation, in order to affect third parties, must be recorded in the book of mortgages and privileges.
   The opinion of the Court was delivered by

Poché, J.

This is a revocatory action, instituted by Sam’l P. Greves, Henry Bodly, I. D. Blouin, John O’Connor and B. Duchein, claiming to be the members of a Board of Liquidators of the creditors of Hart & Hébert, a late banking firm in Baton Kouge, composed of S. M. Hart, E. E. Hébert and A. H. Huguet, who are alleged to have made a voluntary surrender and transfer of their property to their creditors by -authentic act, under date of December 7th, 1875.

Plaintiffs, alleging that they were appointed to compose said board at ■a meeting of said creditors, on the 18th of December, 1875, bring this suit against A. H. Huguet, a member of the banking firm aforesaid, and against John S. Huguet, with the double object of obtaining against A. H. Huguet, and in favor of the creditors of Hart & Hebert, a moneyed' judgment of $118,000, it being the amount of the liabilities of the firm,, and also of annulling a transfer of a certain plantation made by A. H. Huguet to John S. Huguet, on the 29th of September, 1875, as in fraud of the creditors of said firm.

Defendants first excepted to plaintiffs’ petition on the ground that it failed to disclose the names of the creditors of said firm, who were the real party plaintiffs in the suit, and that said board had no authority or power to stand in judgment.

This was followed by another exception urging that the petition' failed to allege any injury as a result of the illegal transfer complained of, and pleading the right of discussion.

The plea of discussion was maintained by the court, but was subsequently waived by the defendants, who, however, reserved the right to renew the same.

With leave of the court, plaintiffs filed an amended petition, in which they disclosed the names of the creditors whom they claimed to represent, and made specific allegation of the injury to their principals-as a result of the alleged illegal transfer of the Highlands plantation, thus curing the two defects in their petition pointed out in defendants’ exceptions.

Defendants then pleaded to the merits in separate answers, in which they denied the alleged insolvency of A. H. Huguet at the time of the transfer of the plantation, and maintained the legality and binding effect of the transaction attacked by plaintiffs.

An intervention was then filed by Dr. Eelix Eormento, who claimed the ownership in himself of the plantation in.suit, which had been sold by John S. Huguet to W. P. Huguet, and that in execution of the latter’s mortgage notes the plantation had been adjudicated to intervenor at a sheriff’s sale. '

To this petition plaintiffs filed a general denial.

At this stage defendants filed another exception, pleading the prescription of one year, to reckon from the date of the transfer to the date of the filing of the amended petition, disclosing the names of the proper parties.

The judgment of the lower court was in favor of defendants and of the intervenor, and plaintiffs appeal.

The pleadings in this case are very complicated and the record quite voluminous, but the view which we take of the cause allows us to dispose of it without solving the numerous legal problems and intricate questions of fact raised in the pleadings and discussed in the briefs of counsel.

The first and essential element of success for plaintiff in a revocatory action is the proof of the insolvency of his debtor at the time of performing the act or executing the contract sought to be revoked or annulled.

On, or within a few days of, the date of the alleged fraudulent transfer by A. H. Huguet to his brother John S. Huguet of the Highlands Plantation, the former joined his copartners, Hart and Hebert, in a voluntary surrender to a committee appointed by the very creditors ■who are now prosecuting this suit, of considerable property owned by ■the firm and by the individual members thereof, for the purpose of meet■ing the liabilities of the banking firm.

The record shows that the committee thus selected and empowered by these creditors was entrusted with full and absolute power in their ■behalf-to accept such transfer, and to bind their principals in the matter ■ of such surrender.

The record further shows that the act of surrender was preceded by a full and detailed statement of the liabilities of the firm, showing its indebtedness to amount to $118,000, and this statement was followed by a detailed enumeration and description of all the property surrendered by the firm and individual members to their creditors, the plaintiffs in this case, acting through the agency of the committee appointed and ■ accredited by them as above set forth.

The record shows that outside of several items or pieces of property embraced in the schedule and not appraised therein, property appraised by the debtors and by the committee of creditors, and described in said schedule, amounting in value to $159,011 13, was on that day surrendered by the firm of Hart & Hébert to their creditors, the plaintiffs in this case.

Now, these parties, having through their authorized agents, participated in this evaluation, having received said property at the stipulated appraisement, having not alleged error or fraud in said surrender and appraisement, or that, after realizing from the sale of said property the same did not have the value attributed to it in the surrender, they are now estopped from denying the legal effect of such surrender and accompanying appraisement; and, besides, they have utterly failed to prove that the property thus surrendered and accepted by themselves was not sufficient in value at the time of the surrender to fully discharge the entire indebtedness of the firm.

It is, therefore, safe to conclude that A. H. Huguet, a member of said firm, entitled to full credit out of the proceeds of the property thus surrendered, was not in a state of insolvency, and in consequence of . such insolvency debarred of the right of disposing of his own separate property as seemed fit to him, or advantageous to his interest.

By the acceptance of the surrender, under its term's and stipulations, these plaintiffs ceased to be the creditors of Hart & Hébert in the sum of $118,000, and could, therefore, lay no claim to the individual property of A. H. Huguet as a member of said firm.

The attempt to prove the insolvency of Huguet having failed, the whole revocatory action is paralyzed and fails also.

The record further shows that some twenty-two creditors of the firm refused or neglected to participate in the act of surrender, or in the selection of a committee or board authorized to accept the surrender, and to liquidate the affairs of the firm. They have not joined in this suit, and their rights are, therefore, not before us for adjudication in this-case; and hence the self-styled board of liquidators have no authority to ask or sue for them in this or any other judicial proceeding.

Therefore, they cannot recover against this defendant, or even against the whole firm, a judgment for the full amount of indebtedness of the firm to all their creditors collectively.

Having received vast and valuable property from their debtors, with power and instruction to apply the same to the firm’s indebtedness, they clearly cannot recover judgment for the full amount of such debt, as though nothing had been given to meet its payment or satisfaction, at least in part.

Had these creditors disposed of the property thus surrendered to them, and had they alleged and proved that the'proceeds had been insufficient to discharge the firm’s indebtedness, they might be entitled to recover judgment against this defendant for such difference, and we shall amend the judgment so as to protect the creditors in that right.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be amended so as to reject plaintiffs’ demand for a moneyed judgment against A. H. Huguet, as in case of nonsuit; and that said judgment be affirmed in all other respects; and it is further ordered that the costs incurred in the lower court be paid by plaintiffs,, and costs of this appeal by the defendant, A. H. Huguet.


author: Fenner, J.

text:
    No. 8134.
    Charles Andrew Johnson vs. The Town of Donaldsonville.
    This case is the same in principle as that of Oubre vs. same defendant, previonsly decided-
    The plea of Bes judicata, based upon the judgment of this Court in a previous suit between . the same parties, has no application.
    A PPEAL from the Twenty-Second Judicial District Court, parish of XX Ascension. Duffel, J.

      B. W. Sims for Plaintiff and Appellee.

      Mcholls & Pugh for Defendant and Appellant.
   The opinion oí the Oourt was delivered by

Fenner, J.

The bonds here sued on are of the same series with those involved in the cases of Oubre, Dugas and Maurin against the same defendant, recently decided by us.

Attempt is made to show that the rights of plaintiff as a creditor of the defendant have already been judicially established, in a suit on these same bonds, by a decree of this Oourt rendered in the unreported case between the same parties, No. 6129, on the docket of this Court.

A reference to the decree rendered in that case shows that plaintiff recovered judgment only for the sum of $320, past due interest, an amount clearly within the provision made, and that as to the balance of his claim for $2011 05, it was dismissed as of nonsuit; and that the court directed the collection of the annual tax for the years 1871 and 1872, and the payment out of the same of the judgment rendered in his favor.

The opinion of the Oourt shows that the defenses maintained by us, if then set up at all, were not passed bn. It is doubtful if they would have been maintainable against the demand for the interest then clue which, as before stated, was clearly within the amount of the provision made.

Bes judicata has no application, and the claim- of plaintiff must fall under the principles announced in the Oubre and other cases decided by us.

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 the following be recognized and declared to be the amount remaining unpaid upon the bonds held by plaintiff and sued on herein, to wit: $2493 70 1-5, with flvé per cent per annum interest on $160 88 2-5 from 1st April, 1874, on $160 88 2-5 from April 1st, 1875, on $160 88 2-5 from April 1st, 1876, and with eight per cent per annum interest on $2011 05 from April 1st, 1876, that plaintiff be recognized and declared to be creditor of the. defendant for his ratable share of the six thousand dollars remaining unpaid out of the provision made for the redemption of the principal and interest of the bonds issued under the resolution of the Mayor and Board of Selectmen of defendant, dated March 20,1866, said ratable share to be the proportion of said six thousand dollars which the amount remaining unpaid on plaintiff’s bonds as above settled, shall bear to the amount remaining unpaid on all the bonds issued in pursuance of said resolution; and that the defendant be condemned to pay the amount of said ratable share.

It is further ordered that the collector proceed forthwith to collect the special tax of one thousand dollars levied by the ordinance of March 20, 1866, on the assessment rolls of 1871, 1872, 1873, 1874, 1875 •and 1876, and to turn the proceeds over to the treasurer or proper authorities o£ the town of Donaldsonville, to be applied to the satisfaction of the debt due plaintiff according to the principles stated in this decree, •and subject to the orders of the court a qua in execution thereof. And that the costs of this appeal be paid by plaintiff and appellee, and those •of the lower court by defendant.


text:
      No. 8181.

    Succession of Adrien Lopez.
    'The controversy ia on the proof of an olographic will, between the universal legatee and the heirs at law. The lower Court gave judgment against the legatee for want of legal proof of the will, decreeing that there was no olographic will of the deceased.

      Held that the proof was insufficient, but that the judgmeut should have been one of non-suit only, as the legatee may still discover and produce proper evidence of the will.
    APPEAL from the Seventeenth Judicial District Court, parish of East •Baton Rouge. Sherburne, J.

      Favrot & Lamon for the Universal Legatee, Appellant.

      B. W. Kniclcerboclcer for the Heirs, Appellees.
   The opinion of the Court was delivered by •

Bermudez, C. J.

Adrien Lopez died leaving a widow, collateral •relatives, and property valued at $1500.

Mrs. Lopez presented for probate a document purporting to be the olographic last will of her husband, and an institution of herself as his universal legatee.

The proceeding was conducted contradictorily with the presumptive heirs, who emphatically denied that the instrument had been dated, written and signed by Lopez.

The trial resulted.in a judgment against the petitioner, and in favor of the heirs, declaring that no olographic will and testament exists in •the succession of Adrien Lopez.” This judgment is before us for review.

It it clear that the denial of the relatives had the effect of requiring no less evidence than the judge should have exacted in an ex parte proceeding.

We do not understand the widow as claiming that she has produced 'in the lower court two credible witnesses who have attested that they recognized the document exhibited to them as being entirely written, dated and signed in the handwriting of Lopez, as having often seen him write and sign. R. C. 0.1655. She affirms that she has testified in that manner; that she has proved the genuineness of his writing by a witness who saw him write once, and of his signature by other witnesses who •saw Mm write Ms name more than onee; that she endeavored to complete the evidence by a comparison of writings. The proposition is that her testimony can be supplemented and strengthened by evidence •which is not that mentioned in article R. C. C. 1655, which has several times already been the subject of judicial examination and exposition. 12 M. 639; 2 R, 433; 9 An. 147; 11 An. 124; 18 An. 444; 23 An. 117; 25 .An. 85; 31 An. 315.

No bill of exception was taken to the evidence by comparison of •handwriting.

It is, therefore, unnecessary for us to express an opinion on a question which has not even recently been uniformly dealt with.

After a close analysis of the evidence, we do not find, conceding, arguendo, the theory of plaintiff, that the document produced and ■claimed to be the last will of Adrien Lopez, is satisfactorily proved to have been dated, written and signed by him. It cannot now be probated and executed as his will.

We think that the District Judge should not have ruled as absolutely -as he has done. It may well happen that the plaintiff may hereafter ■ discover and produce evidence actually unknown to her.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be reversed, and that plaintiff’s demand be dismissed as in case of nonsuit; the costs of appeal to be paid by the appellees, and •those of the lower court by the appellant.


author: Todd, J.

text:
    No. 8189.
    Succession of S. O. Rhea.
    An exeoutor sold some property of the estate by order of court, and with the proceeds paid the first mortgage creditor, before filing an Account and Tableau of distribution and without authority from the court. The second mortgage creditor called for an Account and as, by the time that it was filed, the inscription of the first mortgage had perempted and the debt it secured was prescribed, he opposed the Account, on the ground that the payment made by the executor without authority was not valid, and that, at the time the Account was filed, the only time when payment could be made, his second mortgage had become the first by peremption of the latter and prescription of the debt.

      Sold that, inasmuch as by the fact of the judicial sale, the first mortgage had been transferred to the proceeds, no re-inscription was necessary; and that, though payment by executors without authority should be deprecated, as, in this instance, the first mortgage creditor was the party entitled to the proceeds of the sale, at the moment they were paid to him, the executor should be credited with the amount paid and could not be condemned to pay it twice; and that an executor is entitled to credit tor an irregular payment, if made to the proper party, whether the opposition is made by the heirs or creditors.
    APPEAL from, the Sixteenth Judicial District Court, parish of East Feliciana. T. A. Moore, special judge.

      Stone & Brame for Opponent and Appellant.

      J. G. Kilbourne for Executor and Appellee:
    First — The probate sale of succession property relieves the real estate of the mortgages created by the deceased, O. O. , and the rights of mortgagees attach to the proceeds of the sale-in the hands of the executor. 8 An. 505; H. 150, RTo. 1; 13 An. 558; 24 An. 483.
    Second — In this case the ranking mortgage was paid, whilst in full force, out of the proceeds of a probate sale of property, which had been decreed to be sold to pay his claim. See Records, p. 6.
    Third — The payment liberated the estate from a valid claim that had been recognized by the court and ordered to be paid. The executor did nothing more than he could have been forced to do or more than the court bad decreed. 11 An. 74.
    Fourth — Though a painty have no authority to receive the funds of an estate or pay its debts, yet, if the funds have been applied as the law would have directed, the heir would be bound by such payment, and the party paying is entitled to a credit. 4 An. 74; 7 R. 46.
    Fifth — A creditor has no cause of complaint against an executor for an act that causes hinr no injury.
   The opinion of the Court was delivered by

Todd, J.

The facts out of which the controversy has grown in this case are substantially these:

On the 8th November, 1866, S. O. Rhea executed a special mortgage in favor of D. R. Carroll & Co. for $8211 82, which was duly recorded in the parish of East Feliciana, where the property mortgaged was situated.

On the 7th of June, 1869, Rhea mortgaged the same property toW. R. McKowen for $1712 83.

Rhea died in said parish in the year 1872, and D. C. Hardee was confirmed as testamentary executor of his estate.

On the 3rd February, 1873, judgment was rendered in favor of D. R. Carroll & Co', for the amount of their debt, with a recognition of their special mortgage, and ordering the sale of the mortgaged property to pay the same.

On the.21st of February, 1873, and 18th March following, the entire property subject to this mortgage and the mortgage in favor of Mc-Kowen, was sold at two offerings, on the respective days mentioned, on the application of the executor, and the proceeds of sale paid into his hands.

On the 1st of April, 1873, the executor paid over the proceeds of this sale, $5680, first to satisfy the vendor’s privilege on the property, outranking all the mortgages as conceded, and the balance was applied to the payment of the mortgage debt of D. R. Carroll & Co.

On the 6th of October, 1875, McKowen, whose debt had been acknowledged by the executor, took a rule on him to file an account of his administration, which account was filed, but not until the 20th December, 1878.

The account showed the sale of the property in question and the exhaustion of the funds derived therefrom, by the payments made at the date mentioned; of the vendor’s privilege on the land, and the special mortgage in favor of D. B. Oarroll & Co., mentioned above.

McKowen opposed the-account, alleging that the mortgage in favor of Oarroll & Oo. had perempted for want of reinscription, and the debt prescribed, and by reason thereof he, McKowen, by virtue of his mortgage, was entitled to be paid by preference out of the proceeds of the property.

There was judgment dismissing the opposition and homologating the account, from which judgment McKowen has appealed.

The appellant claims the reversal of the judgment, on the ground that the executor had no authority to pay the debt of Oarroll & Oo. without an order of the court, and in the absence of any tableau filed and judgment distributing the funds, prior to and warranting such payment; and that the rights of the creditors are to be determined solely with reference to the account or tableau filed by the executor and the date of the same, the succession being insolvent. And the legal question thus presented is the only one for our solution.

At the time of the payment to D. B. Oarroll & Oo., on the 1st of April, 1873, neither the debt was prescribed nor the mortgage perempted. When the mortgaged property was sold and the price paid to the executor, all the mortgages thereon were extinguished by the sale, and the rights of the creditors transferred to the proceeds; and there was after that no necessary nor legal object to be subserved by reinscribing the mortgages. Shepherd vs. Cotton Press, 2 An. 110; Suc. Dejean, 8 An. 505; Suc. Ynogoso, 13 An. 559.

And after such event no illegal act or negligence on the part of the executor not approved or ratified expressly or tacitly by a creditor, could affect the rights of such creditor. D. B. Carroll & Co., under their prior mortgage, had a right on the proceeds of the 'sale in question superior to McKowen, the junior mortgagee, and'were entitled to demand payment from the executor in preference to him. If the exeoutor paid the creditor having the better claim to the funds, of course the creditor having an inferior claim or privilege could not recover the amount thus paid from the creditor who outranked him; nor could the mere fact that the executor paid it irregularly and without an order of court, entitle the junior mortgagee to recover from the executor what he had no right to receive from the estate, for the reason that the act of the executor in making the payment, though unwarranted, caused him no loss or injury. An executor or administrator has no right, unless in exceptional cases, to pay a debt of a succession without an order of court, rendered according to law. If he does so, he assumes the burden of showing that the payment was made in strict accordance with the rights of the creditor receiving it, and without prejudice to the claims of other creditors or the heirs; but though such acts may evince a disregard of the legal provisions regulating the duties of such fiduciary officers, there is no law imposing a penalty on an executor or administrator of paying a debt twice on account of such irregularity, where he is able to show that the payment made was correct, and such as the court would have directed as in strict accord with the rights of the creditor. 3 L. 523; 11 R. 78; 2 An. 30; 4 An. 74; 11 An. 74. And this ruléis applicable whether the irregular payment be opposed by heirs or creditors. Such departures, however, from the plain provisions of the law regulating the administration of successions and prescribing the duties of executors and administrators, are to be deprecated, since they often produce unnecessary delay, expense and vexatious litigation, and at the same time entail losses on such fiduciaries, who are legally liable for and should be compelled to indemnify creditors'and heirs for all damages suffered from their illegal acts in this respect.

We see no error in the judgment appealed from, and it is, therefore, affirmed with costs.


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    No. 6822.
    E. Conery et al. vs. Temple S. Coons et al.
    There is elo improper joinder of actions and of parties, in a snit for actnal and punitory damages, against the principal and the surety on an injunction "bond.
    Punitory or vindictive damages on account of a suit by injunction alleged to have been brought through malice and without probable cause, shall not be granted without clear and positive proof of the malice and want of probable cause.
    The dissolution of an injunction is prima facie evidence of an injury sustained by the party enjoined, and entitles him to actual damages.
    j^PPEAL from the Fifth District Court, parish of Orleans. Rogers,

      Bentinelc Egan and Singleton & Browne for Plaintiffs and Appellees.

      Thos. Hunton for Defendants and Appellants.
   The opinion of the Court was delivered by

Levy, J.

The plaintiffs in this case brought suit against the defendants for the recovery in solido against Coons as principal and Zunts and Venables as sureties, on an injunction bond, of one thousand dollars, the amount of said bond, and of $11,793 76 against Coons individually as damages caused by the institution of a" suit and issuance of an injunction thereon by said Coons, which suit, they aver, was brought maliciously and without probable cause, and thereby plaintiffs herein were subjected to loss and damages, amounting in all to the sum of $12,793 76. The injunction suit brought by Coons was tried and there was judgment against him, dissolving the injunction and dismissing his action. In the present case there was judgment, in favor of the plaintiffs against Coons, Zuntz and Venables in solido for the sum of one thousand dollars, with ñve per cent, interest from judicial demand, and against Coons, individually, for the further sum of four hundred and thirty-six dollars with like interest; and Coons and Zuntz have taken this suspensive appeal.

The only question which is to be decided in this case is, whether the suit was instituted by Coons and the injunction applied for and obtained through malice and without probable cause, as we cannot sustain the objection to the suit on the ground set forth in the exception of improper joinder of actions and parties. The suit is for damages alleged to have been caused by the wrongful institution and prosecution of the suit, with malice and without probable cause, the damages claimed against the sureties on the injunction bond being limited, of course, to the responsibility incurred to the amount of the injunction bond, the injunction being averred as one of the causes of the damages, Where it is clearly shown that a plaintiff has been actuated by malice, and that there existed no probable cause for the action, this Court has repeatedly inflicted damages upon the plaintiff; but, in all cases in which it has done so, it has required strong proof of malice and want of probable cause, and a showing of facts and circumstances in support of such averments to be positively established.

In the case of Décuir vs. Lieux, recently decided by us, and not yet reported, we have fully discussed and elaborated these views and given our conclusions as to the law applicable to suits for malicious prosecutions, which principles may be applied to such actions as the present.

There was judgment in the original suit in favor of defendants, dissolving the injunction and dismissing plaintiffs’ action as in case of non-suit. In the present suit there was judgment in favor of Oonery et al., plaintiffs, allowing $1000 damages (that being the amount of the bond) against the principal* and sureties on the injunction bond and against Coons, individually, for $436.

The statement of damages claimed by plaintiffs, which statement is annexed to their petition, embraces the following items :

Insurance premium paid for insurance on steamboat Katie, from 13th February to 13th March, 1875, say twenty-nine days, at $10 per day.................................. $290 00

Keepers’ wages (3) from 13th February to 13th March, 1875, twenty-nine days...................................... 101 00

Wharfage, from 13th February to 13th March, twenty-nine days, at $5 per day.................................... 145 00

Interest on $20,000 for twenty-nine days, at eight per cent.... 128 88

Interest on $20,000 for twenty-nine days, at eight per cent... . 128 88

Attorneys’ fees............................................ 2,000 00

Damages............................'...................... 10,000 00

Aggregating...........................................$12,793 76

These items of damages are alleged to have been caused by reason of the institution of the suit and the wrongful injunction therein, whereby the sale of the steamer was prevented and the expenses enumerated were rendered necessary and the $10,000 damages resulted.

It appears that the writ of inj unction was served on the plaintiffs herein on the 5th of February, 1875, and it is alleged that, having advertised that they would receive proposals for the purchase of the boat up to the 13th February, 1875, they caused a proposal for her purchase from Mrs. Mary W. Tobin (the only one made) to be opened. The proposal being to pay the sum of $40,000, of which $20,000 was to be paid in cash and the balance on time, with eight per cent, per annum interest from date; that by reason of the pendency of Coons’ suit, the value of the boat was greatly depreciated, competition prevented by the cloud thrown upon the title, etc., which compelled them to accept said bid, which was much less than the real value of the boat; and that only after the dissolution of the injunction were they able to sell and deliver the boat to Mrs. Tobin, on the 13th March, 1875; the expenses mentioned accruing between the date of service of the injunction and the sale and delivery aforesaid.

The plea of no cause of action was sustained by the court below and the injunction dissolved,- and Coons’ action dismissed at bis costs, as in case of nonsuit. We are not called upon, nor have we the right, in this case, to pass upon the correctness of that judgment, which has become res adjudicata. We are only to consider the judgment herein appealed from and decide whether the suit was brought with malicious intent and without probable cause.

The evidence shows that Coons consulted attorneys before the institution of the suit, and submitted to them the papers, agreements, etc., on which his claim was based. We do not think that his being himself one of the agents of the creditors, prevented him from enjoining the sale of the boat by his co-agents and claiming from them a settlement of accounts and the enforcement of his claim to a fixed interest in the boat. He, as the lower court decided, had not in his petition disclosed a cause of action in such manner as would sustain his suit, but this fact alone, in the absence of any proof as to malice, did not ñx upon him want of probable cause. These views are expressed •in relation to the claim for damages growing out of the mere institution of the suit from malicious motives and without probable cause. The authorities in regard to the right of recovery of. actual damages growing out of the issuance and service of the inj unction are numerous, and our jurisprudence is settled on that point. The dissolution of an injunction must be regarded as conclusive of its improper or wrongful issuance, and those who resort to the harsh and extraordinary remedies of •oonservatory process, such as attachment, sequestration, arrest and injunction, do so at their peril, and if not sustained are liable for actual damages resulting from or growing out of the proceedings. “ The dissolution of an injunction is prima facie evidence of the plaintiff in execution having sustained injury.” Florance vs. Nixon, 3 La. 292; 4 La. 526; 23 An. 436, 800; 12 An. 785; 11 La. 486; 2 An. 360; 5 An. 155; Barymore vs. McFeely, and Byrne So Co. vs. Gardner, not yet reported.

In this ease, we think the damages claimed should be confined to those actually sustained by reason of the injunction, and that it is not -one which calls for the infliction of punitory or vindictive damages.

The amount allowed in the judgment of the lower court seems to have been based upon sufficient and satisfactory proof, and we do not leel j ustified in disturbing it. '

The judgment appealed from is, therefore, affirmed with costs


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    No. 7765.
    Henry Buddig vs. Mrs. Louisa Simpson. E. C. Palmer, Garnishee.
    "Whether or not a garnishee bad the legal control of the funds of the debtor in attachment, he is liable to the seizing creditor, if in point of fact, he did control such funds and disposed of them after notice of the garnishment.
    . iSemble that property of the debtor in attachment, coining into the hands of a garnishee afto notice of garnishment, is affected by the seizure. -
    APPEAL from the Sixth District Court for the parish of Orleans . Rightor, J.

      Braughn, Buck & Dinkelspiel for Plaintiff and Appellee.

      Singleton & Browne and J. H. Ferguson for the Garnishee, Appellant:
    'The levy of an attachment in the hands of a garnishee by a simultaneous seizure with service of interrogatories, copy of petition and citation to answer, only affects or attaches the property, rights, credits and effects belonging to the defendant in the possession and control of the garnishee, or the indebtedness of the garnishee to the defendant at the • moment the attachment was levied. Such attachment can have no prospective or rete speotiv© effect. The levy of such a writ crystallizes the state of affairs existing at the moment the levy was made; and nothing els© past or future can be included within that crystallization. To attach any effects belonging to the defendant that may come into the possession or under the control of the garnishee, or any indebtedness of the garnishee to-defendant, that may accrue subsequent to the levy of the writ, an entirely new levy or attachment must he made under the same writ of attachment, or a new writ.
    A garnishee’s answers cannot be traversed and contradicted and he be made liable except by positive written proof, or by the oaths of two witnesses worthy of belief, and then only to the amount of property in nis possession or under his control belonging to the defendant, and the indebtedness he may bounder to the defendant, but the garnishee cannot be made liable for the judgment against co-defendants having no interest in the effects attached, in his hands.

      Miller, Finney & Miller on the same side :
    The seizure by garnishment acts only on the conditions existing when the service of interrogatories is made.
    The debt due by a bank to its depositors is not seized by process served on its president individually.
    The garnishee is liable when his answers are disproved only to the amount he is shown by proof to have been indebted, or to have in possession of property.
   The opinion of the Court was delivered by

Levy, J.

Henry Buddig, the plaintiff, holds a note drawn by Jeremiah Simpson, deceased, for twenty-five hundred dollars, on which there was a balance due on the 18th of November, 1878, of the sum of one thousand eight hundred and fifty-one dollars and fifty-five cents, bearing interest at eight per cent per annum from that date. Jeremiah Simpson, died in this State on the 22d of August, 1878, leaving his widow in community, Louisa Simpson, and two minor children. His property was inventoried as of the value of $13,745 76, of which the widow was entitled to one-half in community; and although he had executed a will, making her his universal legatee, she acquired under this will only one-half of his-interest in the community, the other half thereof vesting in his forced heirs, the two minor children. Mrs. Simpson made an unconditional acceptance of the-succession, and having been confirmed as natural tutrix of her minor children, was on the 12th of October, 1878, by judgment of the Second District Court of Orleans Parish, put in possession of the estate in her own right as to her interest and as tutrix as to that-of her minor children. On the 6th of March, 1879, she executed a power of attorney, constituting Edward O. Palmer, of New Orleans, her attorney in fact, and clothing him with powers to receive and disburse moneys due or which might become due to her, “ depositing money in her name and checking upon the same.” On the 25th of June, 1879, Buddig instituted suit on- the note held by him against Mrs. Simpson individually and as tutrix, and in said suit attached certain property of defendants, and issued garnishment process against Edward O. Palmer,. 1 ropounding interrogatories to him as to Ms having in his hands or-under his control, directly or indirectly, at the time of the service of the said interrogatories or at any time since, any monies, rights, credits or other property whatsoever belonging to or due to the said defendants or either of them, in attachment, or in which they have or had any interest in whole or in part, and also as to the existence of any indebtedness or obligation on his part to the defendants, and whether or not “ he was obligated, either alone, or together with others in consequence of any sale or exchange or transaction of any kind whatever ; ” and whether since service of notice of seizure he had any payment, novation or compromise with the defendants or either of them. Service of the interrogatories was made on Palmer on the 25th of June, 1879,. and on the 7th of July, he filed in court his answer, in which he replied in the negative to each of the interrogatories. These answers of the garnishee were traversed by the plaintiff, and on the trial of the rule it was disclosed that on the day on which the interrogatories were served on him there was deposited in the Louisiana Savings Bank to the credit of Mrs. Simpson $4427 50, and on that day, after service of the interrogatories and before answer thereto, Palmer drew a draft on the bank or a receipt for the balance of the money ($4427 57) which was to the credit of Mrs. Simpson and transferred it to the credit of E. A. Gibbs, his partner and brother-in-law. This draft, or receipt, was made by Palmer as agent of Mrs. Simpson, It also appears from the evidence that Palmer at that time had, under his control, property belonging to the defendants valued at about $2500, and that he was indebted to her on an account for lumber in the sum of $221 93.

We do not think the attempt of Palmer, in changing on the books of the bank the amount deposited to the credit of Mrs. Simpson to that of Gibbs, can be regarded as justifying Palmer’s answers. The interposition of Gibbs was a fraudulent attempt to screen the fund from the just pursuit of creditors. It matters not that he was without authority, under his power of attorney, to check upon or dispose of monies in the bank in the name of Mrs. Simpson, which had not been deposited by himself. He chose to represent himself as agent, he controlled the money as such, and the question as to his right to do so, is one to be settled between Mrs. Simpson and himself. After service of the interrogatories he had the fund under his control and, if for one instant of time, it became affected in his hands by the service of notice. Whether E. O. Palmer was influenced by excess of zeal, by ignorance or wilful design, the suggestions in the traverse, that the answers of the garnishee to all the interrogatories are “ evasive, false and untrue,” are fully sustained.

The judgment appealed from is affirmed at appellant’s cost.

Rehearing refused.


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    No. 8236.
    The State of Louisiana ex rel. J. Markey vs. E. K. Skinner, City Judge.
    Writ of Certiorari refused by this Court on the ground that, under the supervisory power, granted by Article 90 of the Constitution, it cannot pass upon the correctness of the judgment of an inferior Court, in an unappealable case, when said judgment appears on its face to have been legally rendered.
    ApPLIOATION for a Writ of Certiorari.

      JS. IS. Moise for the Relator :
    First — The prohibitory mandate issued under C. P. 866 is not the writ defined by C. P. 845, but is an injunction ancillary to the writ of certiorari. C. P. 862, 856, 866.
    Second — Where, proceedings are absolutely null, or a party has been condemned without being cited, an injunction is not the only remedy. C. P. 857.
    Third — Under such circumstances, the judge and the constable are parties. The one at whose instance the wrong has been done, not being an officer, or the judge of a tribunal, is not a necessary party. C. P. 855-861.
    Fourth — An exception to the jurisdiction of the court is not necessary, in order to maintain a certiorari and prohibitory mandate. 26 How. (N. Y.,) Pr. 90.
    Fifth — A certioraA'i is well taken where rights have been adjudicated without notice. 15 Johns. (N. Y.,) 537; 2 Mass. 170; 4 Mass. 627; 2 Mass. 489; 3 Mass. 229-188; 8 Me., (8 G-reenl.) 135-137.
    Sixth — No court need respect a sentence which has been pronounced ex parte. Its nullity is absolute, and is therefore within the provisions of O. P. 857. 1 Dev. & Bat. E^. 576.
    Seventh — A suit must be conducted according to the forms and solemnities of law, and if not so conducted is obnoxious to the constitutional provision of due process of law. 4 Hill, 140; ION. Y. 374.
    Eighth — What a legislature could not authorize a court to do, a court cannot do. A legislative act allowing a decree against any one without notice would be void. 12 N. Y. 209.
    Ninth — A record which has been destroyed should he proven in all its parts, and contradictorily with the party whose interests are to he effected. Freeman on Judgments, Chap, v, § 89, and authorities cited therein.
    'Tenth — An affidavit to a proposition of law, does not make the proposition of law correct, i. e., that a judgment is final.
    Eleventh — Where a court having appellate jurisdiction is succeeded by another court, which also succeeds to the court from which an appeal was taken, and whore a writ of mandamus to the defunct inferior court to send up the record would have been made absolute in a case where the appeal had been dismissed, then the succeeding court should try the cause de novo, as if standing on appeal — viz: transferred from the defunct apj>ellate court.

      W. B. Bichardson and J. Paris Childress for the Respondent:
    First — A writ of certiorari cannot take the place of the writ of injunction. 32 An. 814, 816.
    Second — A judgment cannot ho annulled, except by a direct action. 16 La. 288; 23 An. 599, a fortiori, can it be collaterally annulled by a writ of certiorari and prohibition ?
    Third — While a judgment exists it is a warrant for the execution which cannot be restrained for irregularities, inherent in the judgment itself, a direct action to annul is the remedy. 23 An. 599.
    Fourth — Relator’s remedy is in the First City, and not in this Court. The First City Court possesses all powers necessary to afford, relief to relator. Acts 1880, Nos. 8 and 45; 32 . An. 816, 817, and authorities there cited.

      Hffeh. — Where proceedings, are sucli as those here involved, the maxim “ omnia rite ” applies.
    Sixth — An execution cannot be arrested, except by an injunction. 19 An. 188; 27 An. 666.
    'Seventh — If the judgment is null, an action of nullity in the proper court is the proceeding. If a fi.fa. -wrongfully issues, a writ of injunction is the remedy, a writ of certiorari cannot be made to take the place of that writ. 32 An. 816.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a certiorari for the purpose of ascertaining the validity of certain judicial proceedings in the First City Court.

The relator complains that in the absence of any valid judgment against him, the defendant has assumed on an ex parte showing to issue . execution against him, and that the constable of his court has proceeded to levy the same under garnishment process, by seizure in the hands of a third person indebted to him or supposed to be so ; and that by judgment of said court against such person, payment of the money thus arrested was ordered to be made by the garnishee into court. He further avers that he has applied by motion for relief in the premises, and that the city judge, after granting a restraining order, has dissolved it on the ground that he had mistaken his remedy. - The relator prays for a certiorari. The preliminary orders asked were issued for temporary protection.

The defendant has made a satisfactory return.

An examination of the proceedings brought up, of the pleadings and of the briefs filed in this Court, fails to satisfy us that the proceeding complained of is invalid. The city judge may have erred, but with the intrinsic correctness- of his judgment in the proceeding we have nothing to do. The question presented to our consideration simply is : Is the proceeding legal and valid in its form ? When we say the proceeding, we mean the motion and the restraining order which were dismissed for the reason stated. We do not, and cannot, go behind the motion or the judgment upon it.

The city judge did not refuse absolutely to inquire into the validity or invalidity of the judgment assailed ; he has not said that it was legal and binding ; he has not at all passed upon the merits of the case presented by the motion. He merely decided that the relator had mistaken his remedy. He had a judicial discretion to exercise in the matter, and has done so.

In the case of Piernas vs. Millet, 10 An, 286, the proceeding by motion, without affidavit and bond, to arrest an execution in certain rare cases, was expressly sanctioned, the Court going so far as to say that it could even,proprio motu, thus arrest unlawful proceedings of the character referred to. Whether the case presented on such motion by the relator to the city court was one covered by that ruling, was a question which that court had legal authority to determine, and one the solution of which this Court cannot review, devoid as it is of any appellate jurisdiction over said court. Const. 81, 90.

We find that the forms of law in the matter presented and considered were observed, and that the proceedings complained of are valid on their face.

It is, therefore, ordered that the restraining order herein made be set aside, and that the application for a certiorari and prohibition be-refused at relator’s cost.