text:
    No. 12,759.
    A. L. Johnson vs. City of New Orleans.
    A judgment of non-suit does not support a plea o£ ns judicata. Allinet vs. Creditors, 15 An. 180.
    Holders of claims against the city of New Orleans, by the laws and ordinances under which the claims were created, entitled to payment only from and out of the funds appropriated to payment of such claims, are not entitled to an absolute judgment against the city. Johnson vs. The Oity of New Orleans, 46 An. 714.
    Assuming that the funds applicable to the payment of claims of particular years out of the taxes of those years should have been illegally diverted and misap - plied to the payment of the claims of later years, the effect thereof would not be to transform the mass of these qualified creditors into general creditors with the right to obtain absolute, general judgments against the city — nor authorize any particular one of these creditors to obtain such a judgment giving him superior rights to which he would not be entitled.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Chas. Louque for Plaintiff, Appellant.

      James J. McLoughlin, Assistant Oity Attorney, and Sami. L. Gilmore, Oity Attorney, for Defendant, Appellee.
    Argued and submitted April ‘¿3, 1898.
    Opinion handed down May 16, 1898.
   The opinion of the court was delivered by

Nicholls, C. J.

Plaintiff avers, that he is the owner of claims due to him by the city of New Orleans, to the amount of thirty-two thousand five hundred and twenty-five dollars and ninety-eight cents.

That said claims have been recognized as due to him by said city (but no judgment has been rendered thereon) in the suit entitled A. L. Johnson vs. The City of New Orleans, No. 37,596 of the docket of the Civil District Court. '

That said claims were incurred by the city of New Orleans during the years 1879, 1880, 1881, 1882, 1884, 1886 and 1887.

That he is entitled to recover an absolute judgment against the city for the reason, that said city has diverted the funds out of which petitioner was to be paid in many ways, some of which petitioner is able to mention, to-wit: paying the running expenses of the city of New Orleans during the years 1888 to 1894 with the funds of the above named years 1880 to 1886 and 1887, out of the taxes of 1880 three thousand two hundred and forty-one dollars and ninety-nine cents ($8241.99), of

1881.............................................................................................................................. $2,206 81

1882..................................................:............................................................................... 3,947 4S

1884............................................................ 6,662 96

1886............................................... 3,109 50

1887............................................ 5,900 00

$24,068 74

That in addition the said city has remitted a large amount of interest for said years contrary to law and the Constitution of the State for years.

1880 $20,003 00

1881 13,458 33

1882 80,280 00

1884 24.036 66

1886 30,783 00

1887 30.037 00

$148,587 99

That in addition to the above diversion of funds the said City Council made contracts with W. J. Comeford as collector for the above back taxes and allowed the sum of twenty per cent, on the amount collected; that said contract was ultra vires, because it, allowed to said contractor, who was by virtue of his employment am officer of said city, a salary greatly in excess of $3500 per annum, and; if said contractor was not a city officer he could be delegated no power-to collect the taxes, the powers under the Constitution having beem delegated to the treasurer of said city.

That a similar contract was made with J. W. Gurley, who was-appointed and elected Assistant City Attorney, and in less than one year his fees amounted to more than fifty thousand dollars, all of which sums were illegally and unlawfully taken from money which should h^ve been used for the purpose of paying petitioner’s claim.

That if all the taxes collected, and which should have been collected, had been honestly and legally applied to the indebtedness of the year, his claims would have been paid long ago. In view of the premises he prayed that there be judgment in his favor and against the city of New Orleans for the sum of thirty-two thousand five hundred and twenty-five dollars with legal interesi from January, 1888, and costs. Defendant excepted that plaintiff’s petition disclosed no cause of action. It also pleaded lis pendens and res judicata and prayed that the suit be dismissed.

The District Court, considering the decision of the Supreme Court in the case of A. L. Johnson vs. The City of New Orleans (No. 11,401), 46 An. 714,” maintained the exception of no cause of action and res judicata.

Plaintiff appealed.

In the first suit of Johnson & Co. vs. The City of New Orleans, the plaintiff averred himself to be the holder and owner of the same claims on which he has based his present action. He alleged that the city of New Orleans had failed to pay said claims when due, but had ordinanced for same to be paid whenever there was money in the treasury of the city, not otherwise appropriated. His praygr was for judgment against the city for the amount of the claims with legal iuterest from judicial demand. The District Court rendered judgment in favor of the plaintiff to the extent that it recognized him as the owner of the claims against the city of New Orleans which were .annexed to his petition, and sued for, but in other respects his suit was dismissed as in case of non-suit. Plaintiff appealed, and on .appeal the judgment appealed from was affirmed. The exception of Ms pendens and of res judicata were not well founded, and should .have been overruled. The particular action then brought was ■ended by the judgments rendered. The only matter which was fully ■closed by the ¡judgment was the fact that plaintiff was the owner of the claims declared upon. What plaintiff’s rights as resulting from .ownership were, or would be, was not determined. A judgment of non-suit does not support a plea of res judicata. Allinet vs. His Creditors, 15 An. 130.

The only difference between the petition in the present, and that in the former case, consists in plaintiff’s having assigned as a reason justifying his obtaining an absolute judgment against the city as a general creditor, that his claims were payable out of the taxes of certain years; that those taxes after having been collected by the city had been diverted and misapplied by illegal payments to other parties in manner and amount set out. We have examined the various ordinances adopted by the City Council recognizing and covering the claims held by plaintiff. They are substantially to. the same effect. One of these will serve as a sample of them all.

No. 82, Counsel Series, reads as follows: “An ordinance for the payment of the several accounts therein named.

“ Be it ordained, that the following appropriations be and they are hereby made for the month of December, 1892 (out of special supply fund), and that the comptroller warrant on the treasurer in payment of the same whenever there shall be money in the city treasury to the credit of the appropriate fund for such account and not otherwise appropriated.”

(Below this follows a list of claims specifically described as to amounts and consideration for the same and as to the parties then holding them.)

In the opinion rendered by us in the former case, we said that in no sense was the holder of such claims a general creditor of the city. He is a creditor with the payment confined to a particular fund when collected. Every ordinance produced in the case to fortify plaintiff’s demand announces that the appropriations to pay the claims on which.he sues are not payable until there is money in the city treasury derived from the collection of the public revenues to the credit of the appropriate fund — i. e., that from which the creditor is entitled to be paid. Whatever the character of the obligation, whether warrant certificate or claim, original or transferred, has impressed upon it this specific and limited right of payment and, subject to that limitation, the plaintiff acquired the claim on which he sues. What occurred, and perhaps is the case now, is that there is a large amount of unpaid claims against the city, payable out of appropriations of past years. This is due to shortages in the collection of taxes and perhaps to other causes. The plaintiff doubtless is the sufferer with others from the absence of funds in the treasury to pay him. Hence his appeal to the court to change the character of his debt and give him an absolute judgment against the city with interest. It is manifest he is entitled to no such relief.” Though these remarks did not lead up to a decree which the city can invoke as res judicata, they are none the less an authoritative expression of the court’s opinion as to the status of the plaintiff as a creditor of the city. Had the corporation refused originally to recognize the existence and validity of these claims, and had the plaintiff sued the city to have the same to be decreed to be just and legal, it is obvious that a judgment to that effect would necessarily have had to contain at the same time a limitation upon a right of general payment. The judgment would have had to restrict plaintiff’s right to enforcement within the limits of the contract and of the law governing the case. The plaintiff would have been unable to enforce the judgment against the city by general seizure under a writ of fi. fa. We are not advised of any circumstances having arisen since our judgment in the case which has had the effect of changing plaintiff’s position from a qualified creditor to a general creditor. If it be true that the funds of the city applicable to the payment of claims of particular years out of the taxes of those years have been illegally diverted and misapplied to the payment of claitps of later years, there may exist some remedy by which that wrong could be rectified, but the remedy would certainly not be to transform all of these qualified creditors into general creditors, with a right to obtain absolute general judgments against the city. If this result could not be brought about in favor of the mass of the holders of such claims, still less could it be successfully sought in favor of particular creditors, thus giving them superior rights to which they would not be entitled. If plaintiff be entitled to relief, we do not see that it would be at all necessary that he should be armed with a judgment in order that it' should be made to serve as a basis for obtaining it. ■

For the reasons assigned:

It is hereby ordered, adjudged and decreed that the judgment appealed from, in so far as it sustains the plea of res adjudicata, be and the same is hereby annulled, avoided and reversed, and the judgment appealed from sustaining the exception of no cause of action be affirmed in so far as plaintiff seeks to obtain an absolute judgment upon his claim against the defendant. Costs of appeal to be borne by the appellee.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 12,787.
    The State of Louisiana vs. Moses Rollins.
    Though the law has not imposed upon courts the duty of informing accused parties, that they are entitled to counsel, and asking them whether they desire that counsel should be assigned to them — it has become almost universally the practice for them to do so ex profirió motu.

    While the fact that a prisoner does not ask the court to assign counsel to him, and he chooses to appear by himself,and he is convicted, does not entitle him to anew trial because of his wantot counsel (State vs.Kelly, 25 An. 382), it is none the less a fact to bs considered in connection with others for the purpose of ascertaining whether in any particular case he has been accorded the full opportunities for defence which it is the duty of the State to extend to its people, even those who may be ultimately and deservedly found guilty of crime.
    The right to move for a new trial is guaranteed to the defendant in the smallest civil cases. In criminal cases, the same right exists, as also the additional right of moving in arrest of judgment for defects apparent on the face of the record. These rights may be waived by theparties, but they can not be denied by the courts. The law contemplates the giving of reasonable opportunity for preparation and examination. To refuse a reasonable time for the exercise of a right is tantamount to a denial of the right itself. State vs. Gardner, 10 An. 25.
    A PPEAL from the Twenfcy-aecond Judicial District Court for the Parish of St. Bernard. Single, J.

      M. J. Cunningham, Attorney General, and Albert Estopinal, Jr. {P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      A. E. & O. S. Livaudais for Defendant., Appellant.
    Argued and submitted April 23, 1898.
    Opinion handed down May 16, 1898.
   The opinion of the court was delivered by

Nicholls, C. J.

On the 1st of March, 1897, two informations were filed against the defendant. The first charge that he had, on September 30, 1896, wilfully and maliciously and with a dangerous weapon, to-wit: a pistol, inflicted a wound less than mayhem upon one Wash Williams, with the intent him the said Wash Williams to kill. The second charge that he had on the 30th of September, 1896, carried concealed about his person a concealed weapon, to-wit: a loaded pistol.

The minutes of the court of date March the 7th, 1897, show that the accused was on that day brought to the bar in the custody of the sheriff; that being arraigned on each of the charges he pleaded “ Not Guilty.” Whereupon, on motion of the District Attorney, the case was fixed for trial for March the 6th, 1897, and the accused was released on bond. For some reason unexplained the cases were not tried on that day.

On the seventh of March of the next year, 1898, the accused having failed to answer to his name when called, a bench warrant issued for his arrest returnable March 8, 1898. On that day the eases were fixed for trial for the tenth of the month. The minutes do not show that the accused was present when they were so fixed. The minutes of the tenth recite that “ these cases regularly fixed came on their day for trial. Present: A. Estopinal, Jr., District Attorney, for State. The accused present in court and'represented in propria persona. The accused being ready for trial the following persons (naming them) were duly called, presented, accepted and sworn as the jury to try these cases.

“ The evidence being completed these cases were submitted.

“The court charged the jury in relation to each of the charges of wounding with intent to kill and carrying concealed weapons, ordered them to retire to their room to deliberate on their verdict and to appoint their own foreman.

“ After a short absence the jury returned into court and through their foreman, Francis Bourg, returned a verdict of guilty as charged on each information; whereupon the court ordered the verdicts recorded and the jury discharged from further consideration of the cases.”

Defendant, through counsel, moved for a new trial, on the ground:

1. Because the verdict of the jury was contrary to the law and the evidence.

2. Because the defendant had had no sufficient notice of the assignment of his cases for trial.

3. Because the accused, who was unprepared for trial and had no counsel to represent, him was tried and convicted solely upon the testimony of the witnesses for the prosecution and in the absence of his witnesses whose names he had furnished to the proper officer and which said witnesses could easily have been procured; they all being residents of the parish.

4. Because the accused, who is illiterate and had no means to employ counsel, had every reason to believe that his witnesses would have been summoned (he having furnished their names to the committing magistrate, who had marked their names on the back of the the affidavit) until the time when during the trial he caused the first of his witnesses to be called when he discovered for the first time that none of his witnesses had been summoned.

5. Because since the trial of the cause his friends had procured him the ¡assistance of counsel and he then invoked the right to be permitted to establish his defence by lawful evidence and to obtain the process of the court to procure the attendance of his witnesses. The motion for a new trial was overruled.

The accused was brought to the bar and sentenced. The minutes recite that “ the court on the verdict of guilty of wounding with intent to kill, considering Sec. 794 of the Revised Statutes, sentenced Moses Rollins to imprisonment in the State penitentiary at hard labor for a period of eight months and to pay a fine of one dollar, and on the verdict of guilty of carrying concealed weapons,. the court, considering See.- of the Revised Statutes, sentenced Moses Rollins to-pay a fine of fiffceen'dollars and costs, and in default thereof to suffer imprisonment in the parish jail for a period of twenty-five days.”

Defendant filed a bill of exceptions to the action of the court in refusing a new trial.

This bill recites that immediately after the verdict was rendered in the case, counsel for the accused applied for a new trial or for time to prepare application for new trial. Whereupon the court declared that this was the last day he intended to hold court in the parish for the present term, and requested counsel to state the grounds upon which would be based his said intended application, and said counsel having done so in the manner above, and as well as the short time allowed, and his knowledge of the case permitted, and the judge overruling said motion, proceeded forthwith to sentence the accused under said verdict and Sec. 794, R. S., to pay a fine of one dollar and suffer imprisonment at hard labor for eight months. Whereupon counsel for accused reserved a bill of exception to the ruling of the court.

The District Judge made the following statement upon the bill:

“The trial took place on Thursday, March 10, 1898, it being the last day of the present term of the court. The accused was indicted for the offence at a prior term of this court, and his case continued to the present term, he being released on bond for his appearance thereto. On Monday, March 7, 1898, the prisoner having failed to appear for trial, on motion of the District Attorney a bench warrant issued for his arrest, and on Tuesday, March the 8th, the following day, being brought into court, his case was fixed for trial for Thursday, March 10, 1898.
“On the day of his trial, the defendant was asked the following question by the Court: ‘Do you wish to be tried by the judge or by the jury?’ He answered: ‘By a jury.’ The sheriff was then ordered to call the names of the witnesses summoned by the State and by the defendant, which he did in the presence of the accused, and the triaj was then proceeded with without objection on the part of the defendant.”
“1. The verdict rendered was in accordance with the law and the evidence.
“2. The defendant had sufficient notice of the assignment of his case for trial.
“8. The prisoner did not ask the Court to assign an attorney to defend him and chose to appear by himself, nor did he ask for a continuance on any ground whatsoever.
“4 The names of the witnesses furnished to the sheriff by him were summoned with the exception of one who could not be found.
“These witnesses were present at the trial of the cause and their testimony was given on behalf of the defendant. The services of counsel were secured only after verdict and at the very moment that the defendant was to receive sentence. It was then their motion for a new trial was made.
“5. The defendant or his friends had ample time prior to the trial to procure the assistance of counsel.”

No assignment of error was made in the Supreme Court, nor was any brief filed on behalf of appellant. His counsel argued the case orally.

The accused in this case went to trial without the assistance of counsel. There is no pretence that the Court informed him that he was entitled to counsel or asked him whether he desired that counsel should be assigned to him. Though the giving of this information and the asking of this question have not been imposed upon courts by law, it has become almost universally the practice for them to do so ox proprio motu. While it has been held that if a prisoner does not ask the court to assign an attorney to defend him and chooses to appear by himself and he is convicted, the want of counsel is no good reason for a new trial (State vs. Kelly, 25 An. 382) it is none the less a fact to be considered in connection with others for the purpose of ascertaining whether in any particular case he has been accorded the full opportunities for defense, which it is the duty of the State to extend to its people, even those who may be ultimately and deservedly found guilty of crime.

The minutes do not show that the appellant was present when the ease was assigned for trial. Per se, standing alone, that fact might not be good ground for a new trial, but this also is a circumstance to be considered. The District Judge, in his reasons for refusing a new trial, states that appellant was present at that time,, but that is not the proper place where such fact should appear. Defective minutes are not to be eked out by statements so made by the judge. The case was tried two days after the assignment. The clerk in his minutes recites as a fact that the accused was ready for trial when the case was called, but the minutes do not declare that he was asked whether be was ready, and answered that he was. As matters stand, the statement is a mere conclusion of the clerk. If the court’s statement be taken as showing the facts of the case at that time, he was not asked that question at all, but simply “ whether he would be tried by the court or the jury,” and having answered “ by the jury,” the jury was at once called, empaneled and sworn and the case at once disposed of. The court says the services of counsel were secured only after verdict and at the very moment that the defendant was to receive sentence. “That it was then that motion for new trial was made.” That is true, but the record shows that the verdict in the case, the motion for a new trial, the sentence of the accused and the adjournment of court, all followed in rapid succession on the same day. The motion for a new trial comes before us in a very irregular manner. It is unsworn to and reaches us as part of the minutes of the court. The reason for this appears to have arisen from the fact that the court declined to grant counsel ■of accused time to write out his motion and insisted that he should state his grounds for the same at once. The reasons seem to have been assigned verbally and to have been taken down by the clerk. We see no reason for this haste. Counsel for accused could not have acted any more promptly than they did.

The judge states all this happened upon the day that he intended to adjourn the court, but this intention to adjourn should have [given way at once before the reasonable demand made for time to prepare the legal motions which the law allows to be made between verdict and sentence. There is no reason assigned by the court why this hasty adjournment should have been made on that day and we see none.

In State vs. Gardner, 10 An. 25, this court said: “The right to move for a new trial is guaranteed to the defendant in the smallest civil cases. In criminal cases the same right exists, as also the additional right of moving in arrest of judgment for defects apparent on the face of the record.

“These rights may be waived by the parties, but they can not be denied by the courts. To refuse a reasonable time for the exercise of a right is tantamount to a denial of the right itself. This is exemplified in the present case. According to Hawkins the rule in the King’s Bench'in cases of misdemeanors was that four days should elapse between the conviction and the judgment if there were so many days remaining in the term. It is said by Ohitty that the court if they granted a rule nisi will at the instance of the party applying make it a part of the rule that the defendant should have a certain time, e. g., three days, to move in arrest of judgment after they shall have given their opinion upon the motion for a new trial, or the defendant may obtain a rule m the alternative, though as the motion in arrest may be made at any time before judgment is pronounced, it would seem that such a special rule is not necessary.

“The analogy between criminal and civil proceedings in the English court in regard to these matters of practice is very striking.Our Oode of Practice relates to civil proceedings alone, but by analogy it may occasionally afford a safe guide to criminal proceedings. We are not called on to determine what a reasonable time for the preparation of the motion in question would be; we only say that the judge erred in refusing to grant any time whatever.” Those views are thoroughly correct.

It will not do to say that the motion for a new trial was, in fact,made and overruled. The law contemplates a motion made with reasonable opportunities for preparation and in this case for examination. It may be that the accused was properly found guilty and that he. should be punished. If that be true and he be not punished now, it will demonstrate that harsh proceedings in the District Court are not the surest and best methods of securing the ends of justice.

We are of the opinion that the sentence appealed from should be as prematurely rendered, set aside and the cause remanded to the District Court and there reinstated on the docket with leave to the defendant to make formal motions for a new trial and in arrest of judgment and for further' proceedings according to law, and it is hereby so ordered and decreed.


author: Nicholls, O. J.

text:
    No. 12,483.
    American Furniture Company vs. Grant-Jung Furniture Company, Limited.
    The writ of sequestration is intended as a protective and preventive, not a compulsory, remedy. Parties using it for coercive purposes to effect payment of claims due them, by threats of injury and annoyance, must be prepared if they do so, to be in the exact position necessary to enable them to claim the benefit of the legal proposition, that a person is not liable for damages if he merely exercises a legal right, even though his motives may be bad.
    Where the question before the court is, whether on the face of the papers the District Court was justified on the pleadings and affidavit in directing a writ of sequestration to issue — the appellate court will give full weight to the affidavit and take its averments to be true; but, where the question comes up on a motion to dissolve the sequestration on a direct charge that the allegations of the petition and affidavit were false, plaintiff will be required to do more than rest upon the pleadings and affidavit.^ On the trial of the sequestration as to issues of fact, plaintiff must show and sustain the grounds and facts upon which his alleged fear was made to rest.
    Where a person engaged in selling goods, wares and merchandise, to parties in a retail business, sells them on credit, there is an implied consent on his part that the latter should dispose of the goods purchased in the usual and regular course of business. If the price be not paid at maturity, the vendor may withdraw this consent and resort to legal proceedings (if called for) to enforce this withdrawal. Should he resort to writs of sequestration for that purpose he must be careful not to convey to the general public in his pleadings and affidavit (unless warranted by the facts) that he had reason to believe that defendants had concealed or were about concealing the goods. That allegation carries with it the idea of dishonesty or want of fairness, and is calculated to alarm all parties dealing with the vendees.

      A PPEAL from the Civil District Court for the Parish of Orleans. Théard, J.

      Edwin T. Merrick and B. B. Forman for Plaintiff, Appellant.

      W. S. Parkerson for Defendant, Appellee.
    Argued and submitted January 28, 1898.
    Opinion handed down March 21, 1898.
    Rehearing refused April 18, 1898.
   The opinion of the court was delivered by

Nicholls, O. J.

On the 29th of December, 1894, plaintiff insti-' tuted a suit in the Civil District Court for the parish of Orleans against defendant, asking judgment for nine hundred and forty-three dollars with vendor’s privilege on certain property which it alleged ' it had sold to defendant. With this reference to these sales, plaintiff alleged that it had on the 5th and 20th of July, and 5th of October, 1894, contracted, sold and delivered to the defendant, goods, wares and merchandise consisting of bedroom sets, bookcases desks, sideboards, china cases, etc., as would appear by a statement annexed to its petition. That the sales of certain bookcases, china closets, bedroom sets and sideboards, of goods sold which petitioner could point out, were made in New Orleans through its secretary and gave rise to a vendor’s privilege to secure payment of the price. Plaintiff’s demand was accompanied by a prayer for a sequestration based upon an allegation that defendant would conceal part with or dispose of the said movables in his position during the pendency of the suit. A writ of sequestration having issued under order of court granted on plaintiff’s petition, 'the sheriff, on . the 29th of January, 1895, sequestered and took into his possesion a small lot of furniture. Defendant bonded the property sequestered on the 31st of January, 1895.

On that day defendant ruled plaintiff to show case why the sequestration should not be set aside on the grounds:

1. That the allegation contained in plaintiff’s petition, that it feared that defendant would conceal, part with or dispose of the movable property in its possession during the pendency of the suit, was false and untrue.

2. That the allegation that the sale of certain bookcases, china closets, bedroom sets and sideboards was made through an agent in New Orleans was false and untrue; said goods having been sold in the city of Cincinnati, in the State of Ohio.

On the trial of this rule the sequestration was dissolved. Plaintiff appealed from the decision to the Court of Appeals, which court affirmed the judgment of the District Court.

On the 9th of January, 1895, defendant filed an answer pleading first a general denial. Further answering, it averred that at the institution of the suit the goods had not been delivered or completed; that the defendant did not intend to conceal or part with the goods, as was well known to plaintiff, to whom the goods were tendered by defendants; that the plaintiff did not have a vendor’s privilege on the goods, the same having been sold in the State of Ohio.

Assuming the position of plaintiffs in reconvention, defendants alleged that the American Furnishing Company, in accordance with the requirements of law, had, in taking out the sequestration, furnished bond in the sum of one thousand dollars, upon which E. T. Merrick, Jr., became the surety, and he was liable in solido with that company up to the amount of said bond.

That by reason of said wrongful, illegal and malicious sequestration, plaintiffs in reconvention were compelled to employ an attorney for the purpose of dissolving the same, and that for such services they owe their attorney the sum of two hundred and fifty dollars; that they were injured in their credit and business, many of their creditors sending their claims to attorneys for collection and demanding an immediate settlement; that they were greatly harassed and embarrassed thereby and had been injured in the sum of ten thousand dollars; that Peter Jung, vice president of the Grant-Jung Company, was compelled to go North to see their creditors as a result of said illegal, wrongful and malicious sequestration, and that the said trip forced upon them an expenditure of some three hundred dollars.

In view of the premises, defendant prayed that the sequestration be dissolved and plaintiff’s suit dismissed, and that there be judgment in reconvention in their own favor for the sum of ten thousand five hundred and fifty dollars and costs.

• The District Court rendered judmge'nt on the main demand against defendant, in favor of plaintiff, for the sum of nine hundred and forty-three dollars, with legal interest from judicial demand and costs thereof, and on the reconventional demand against plaintiffs, in favor of defendants for fifteen hundred and fifty dollars and costs of said demand.

Plaintiffs appealed. Defendants moved to amend, praying that the judgment appealed from be increased so as to grant them damages for the full amount asked in their reconventional demand. After this amendment was asked for the Grant-Jung Company was dissolved and went into liquidation under liquidators, who, on motion, were made parties to the appeal.

Counsel of the Grant-Jung Company contend in their brief and argument and the members of that company declare in their testimony, that the sequestration taken out by plaintiff was utterly unjustified; that the articles sequestered were not sold in New Orleans, and the price thereof was not secured by privilege; that they formed part of orders given for goods which were not completed and the articles in han'd were not in a condition to be resold by them; that until the orders were fully filled, the price of the articles were not due and exigible and the sequestration prematurely issued; that it was not only issued illegally, but maliciously. That plaintiff’s secretary, Hildebrand, who represented them in New Orleans in the matter of the sequestration, stated before it was issued that unless plaintiff’s bill was paid he would cause it to be issued; that it would bring about “ big trouble,”, and threatened them with the injury and annoyance it would cause them. That the immediate effect of the sequestration was to produce great alarm in the minds of the parties from whom defendants were in the habit of purchasing goods, as well as those who had been in the habit of purchasing from them. That the former, in a number of instances, refused or neglected to honor orders which had been sent them and stopped extra-judicially goods which had already been forwarded to them; that various commercial credit agencies withdrew their credit from their reports; that after the sequestration they were unable to purchase goods, except for cash or on shipments with bills of lading attached, or on personal guarantee of payment by Mr. Jung, That several suits were filed against the company immediately after the sequestration which would not have been filed but for.it; that their ■creditors generally were about to follow suit and would have done so but for Mr. Jung having been sent North and East to explain to them the exact situation having induced them to forego action; that ■the credit of the company was good at the time of the sequestration and it was making money, though not much; that its stock was greatly reduced below its necessities in the interval between the sequestration and the July following;' that during that period it lost about eleven thousand dollars, which loss it attributed to the sequestration. That numbers of persons who were in the habit 'of making purchases on advance deposits of one-fourth to one-tenth of the orders, withdrew the deposits they had made, also their orders. That shortly before the sequestration defendants paid plaintiffs every dollar which was then due them and offered to return the articles which they then had on hand which they had purchased from them ;. that plaintiffs after accepting the offer refused to carry it out and brought suit; that defendants had done nothing to warrant their allegation, “ that they had reason to fear that defendants would part with, dispose of or conceal the property sequestered during the pendency of the suit.”

Plaintiffs on the other hand insist that the articles sequestered, were sold in New Orleans, and payment of the price of the same was secured by privilege; that the price was due and exigible; that defendants gave many evasive and unfounded reasons and excuses for delaying payment, and after having themselves offered to return to plaintiffs the articles in their stock, which they then had, and which remained unpaid for, declined to carry out their offer when called upon to do so, imposing upon plaintiffs as a condition for doing so the payment of a hill for freight, insurance, drayage, storage, etc., upon the goods not mentioned when they made the offer which bill was almost equal to the value of the goods to be returned and entirely unwarranted in being asked for as to amount or as to fact. Hildebrand substantially denies threatening the defendant with a sequestration. He declared that he simply referred to the consequences of a sequestration as likely to give them trouble and annoyance and declared that if he was forced to take action for the prosecution of plaintiffs’ legal rights he could not help the consequences. He said that defendant after having broken off their arrangement to plaintiffs to return the articles in stock Which they had purchased from plaintifft told him — that he might cráck his whip —that they had employed an attorney and could keep them out of their money for eight or nine m onths.

For the purposes of discussion of the rights and obligation of parties we have to accept two facts as having been conclusively established by the judgments of the District Court and the Court of Appeals: first, that the sequestration was illegally taken out; and second, that defendant was justly and truly indebted to plaintiff at the time of the judgment to the amount declared upon in their petition.

While we have to accept this first point as established, we are not advised as to the precise ground upon which the result was reached. There is evidence in the record to which the court may have given full credit to the effect that the articles in stock which were sequestered were none of them in the condition which defendant had the right to exact they should be in before being called on to make payment for the same, nor in the condition to be resold. There is conflict in the evidence as to whether all or any of the articles sequestered were purchased under a Louisiana contract. There is no evidence in the record that the defendants had concealed or were about to conceal any of the articles purchased from the plaintiffs and none that defendants were at the time of the aequestration in an embarrassed or insolvent condition.

The dissolution of the sequestration by the District Court and Court of Appeal carries with it as an unavoidable consequence a liability on the part of the plaintiffs to damages to some extent; the extent of the damages being dependent upon the facts surrounding and connected with its issuance. If the sequestration was dissolved simply bp reason of some error or mere slip of the proceedings or the pleadings, the plaintiffs would be liable for compensatory damages only; that is, to the damages resulting from it as its natural and proximate cause, but if it was issued maliciously with the motive and intention of injuring the defendants, they would be liable as for a- tort just as any other person would be liable for torts resulting from acts uncon - nected with judicial proceedings. The writ of sequestration is intended by law to be a protective and preventive, not a compulsory remedy — parties using it for coercive purposes to effect payment of claims due them by threats of injury and annoyance must be prepared if they do so to be in the exact position to claim the benefit of the legal proposition that a person is not liable for damages if he merely exercises‘a legal right, even though his motives may be bad.

We are not prepared to say that a part of the articles sequestered were not purchased in Louisiana at some date later than August, 1894. It is exceedingly difficult to fix the the identity of articles of furniture sold and delivered under different orders and we can not trace some of the articles to any order given in August, or prior thereto, but neither are we prepared to say that any portion of the, articles sequestered were complete or in salable condition.

A large part of the arguments and briefs of counsel of both sides was taken up in discussing whether certain china closets sequestésed were sold in Louisiana or in Cincinnati. A very close analysis of the testimony disclosed that the apparently irreconcilable statements of the witnesses of the plaintiffs on the one side and those of the defendant on the other sprang from a difference of opinion as to whether a certain conversation between J. G. Grant and Hildebrand evidenced a sale or not. It appears that the plaintiff company not only sells, but it manufactures articles of furniture. Grant testified that among the articles which his company was in the habid of purchasing from plaintiffs were bookcases of a particular pattern, known as “ No. 27 bookcases.” That in January, 1894, he suggested in New Orleans to Hildebrand that by a certain alteration in the pattern a very salable and popular china closet might be made, several of their customers having so expressed themselves; that Hildebrand asked him about how many persons had done so, and he replied about a dozen; that Hildebrand thought the idea a good one, and Hildebrand said his company could meet the demand; that he would communicate with his company. Up to this point both parties agree as to the conversation, but beyond that, they separate. Hildebrand says that he, at that time, fixed the prices for these new china closets, and Grant then and there purchased a dozen and ordered them forwarded. Grant says that Hildebrand did not know what the alteration would cost and was not in a position to fix prices, nor to come under any obligation to make such china closets or make sales. That he (Grant) merely made a suggestion to Hildebrand and Hildebrand merely communicated it as snch to his company; that true it was that the latter adopted it and manufactured, them, but that the defendant company never came under any obligation to buy until August of 1894, when he and Hildebrand met in; Oincinnati, when an order was, for the first time, given for them.

Plaintiffs produced and filed a letter written to them by defendant, ■dated New Orleans, 3-21-1894, in which, after referring to othe matters, they say: “Do not ship the china closets you made for us until we give you further notice, as we hope soon to move into larger quarters and do not want to put any more in our warehouse.”

Defendants say this letter referred to china closets other than those ■of this particular pattern, as their order of January, 1894 would show that the parties had dealings with reference to other kinds, but there is no evidence before us that any closets other than these particular ones were ever “made to order.” We are inclined to think that there must have been some understanding between these parties in respect to them of a more definite character than defendants believe.

There may be a difference between the rights and obligations of parties as resulting from a contract of absolute sale and those resulting from a, contract to manufacture ” or an order “ to manufacture” under a promise of purchase, but we need not go into any discussion of the question inasmuch as the testimony shows that these particular articles were not in a complete condition when sequestered and notin a condition for resale, and plaintiffs were not in position to demand the price thereof.

Each party claims that the burden of' proof was upon the other in respect to damages and the extent of the same. Plaintiffs contend that the affidavit taken by them verifying the allegations of their petition must be taken for true and protects them against damages, .and particularly punitive damages, until rebutted. They assert that they had sworn that “ they had reason to fear that defendant would part with, dispose of or conceal the goods;” that this was all that the law exacted on their part, and having complied with it they could rest secure fromjany charge of malice so long as defendants failed to prove the non-existence of their fear and of their good faith.

If the question',before the court was simply whether, on the face of the papers, the District Court was justified on the pleadings and affidavit in directing the writ of sequestration to issue, if the regularity of the proceedings were simply at issue we would give full weight to the affidavit, but where the question comes up on a motion to dissolve the sequestration on a direct charge that the allegations of the petition and affidavit were false, we think plaintiff would be required to do more than rest upon his pleadings and affidavit. The law contemplated that on the trial of the sequestration as to issues of fact that the plaintiff should be able to show the grounds'and iacts upon which his alleged fear was made to rest. The only facts disclosed in this record are the fact itself of indebtedness (which is controverted as to its being exigible though due) — its non-payment and the refusal of defendants after they had proposed to return to plaintiffs the articles which they bad purchased from them and ■which they then held in stock to make the delivery, unless coupled ■with new and unreasonable demands. We find no evidence of concealment or attempted concealment of those goods on the part of defendant and no evidence of insolvency or embarrassment on their part. The conduct of the defendants in refusing to carry out their agreement with plaintiffs unless they complied with new and unreasonable conditions attached was certainly calculated to irritate them .and to do away with any indulgence which they might have otherwise intended to extend to defendants, but it did not do away with the necessity when they did act of keeping within preciselegal limits.

■ When a company engaged in such business as the plaintiffs are in, sells goods on credit to parties engaged in business, such as the defendants are in, it must be necessarily in the contemplation of both parties that the goods sold should be “ disposed of and parted with.” The consent of the seller to such disposition is necessarily implied. The lessor, under our law, has not only a right of privilege, but of pledge for the payment of the price of the lease, but Mareadé, under Art. 2102, referring to the fruits of the farm, says that they can unquestionably be sold by the lessor, notwithstanding the express terms of the law, for the reason that from the very nature of the subject-matter, the lessor had given an implied'anticipated consent to the sale. The mere fact of selling or disposing of the goods by the defendants showed no bad faith on their part; that fact had to be one of other facts to make the selling a just cause for sequestration. It is true that if the price of a sale becomes exigible, and it be not paid according to promise, the vendor may have the right to withdraw this anticipated consent and insist that thereafter the objects upon which his privilege rests may be placed in a position such as that they be not sold and the privilege upon them lost. This right may be independent of any bad faith on the part of the-vendee, and when a vendor avails himself of his right so to do, he should be careful not to convey to the general public by his pleadings or affidavit that he had reason to believe that the vendee Was about “ concealing ” .the articles sold. That particular dec.laration conveys and carries with it the idea of dishonesty or want of fairness, and if made by responsible parties would be calculated to alarm all parties dealing with the vendee. If not true it should be left out of the affidavit; it is. not harmless but very injurious surplusage.

We do not think plaintiffs were justified in making this charge against the defendants, particularly when there was nothing to indi - cate that defendants were in failing circumstances.

The District Oourt rendered a judgment for fifteen hundred and' fifty dollars, without any attempc to show on what particular items of damage it was grounded. The testimony of Grant, Jung and Metaye (the secretary of the defendant company) undoubtedly show just and probable elements for damages, but their statements are of the most general character and they do not descend to particulars. Why the court fixed upon that particular sum we do not know.While we do not feel warranted in setting aside the judgment, we certainly would not be warranted in increasing the amount of damages as appellant suggests.

The judgment is affirmed.


text:
    No. 12,625.
    Edward Talle et als. vs. Mrs. Widow N. Antonio de Monasterio et als.
    Plaintiff in a petitory action asserting his own title, attacked defendant’s title as being based upon an absolutely null tax sale, and prayed for rent and also for damages. Defendant answered, averring that being a creditor of the plaintiff, the latter had suggested to him that the property he permitted to be sold for taxes, and that defendant should purchase it, and that plaintiff’s indebtedness to defendant be then canceled; that this was accordingly done, and plaintiff was estopped from attacking the tax sale. He set up no demands in reconven - tion or compensation. The District Court set aside the tax sale, rejected plaintiff’s demand for damages, and was silent as to the demand for rent. Plaintiff appealed. Defendant made no demand for an amendment.
    The Supreme Court decreed that the judgment of the District Court in so far only as it dismissed and rejected plaintiff’s demand for fruits and revenues be annulled; that in so far as it decreed plaintiff the ownership of the property and dismissed defendant’s reconventional demand, it be left in full force; that the right be reserved to plaintiff to claim the fruits and revenues of said property, and the cause be remanded to the lower court for further proceedings according to law. On the return of the cause to the District Court, defendant filed a supplemental answer setting up, by way of defence through compensation, a number of claims against the plaintiffs. Plaintiff resisted proof of these claims on a plea of res judicata under the decree of the Supreme Court. The plea was overruled, the District Court stating it understood the decree of the Supreme Court to have remanded the cause to enable plaintiff to claim fruits, and revenues, the fruits and revenues of the property. That this included, also, the right of defendant to plead de novo whatever she might have compensation. Held: That the District Court in holding that the judgment of the Supreme Court did not cut off defendant’s right of resisting demands, though a plea of “compensation” was correct. The purpose and intention of the judgment was to force defendants, by reason of their having acquiesced in the judgment of the District Court, to occupy on the return of the cause a purely defensive position, cutting them off from setting up reeonventional demands, but not pleas in compensation.
    When by the consent of the owner of property, the legal title thereto has been placed in the name of one of his creditors, under an agreement, that he should hold the same until the amount due him should be paid, the owner has no right to ignore the latter’s right of detention until a balancing of accounts had been had, and by and through a petitory action recover both the property and the rents, leaving her own debts unpaid.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Theo. Gotonio f.or Plaintiffs, Appellants.

      Horace E. Upton and Anatole A. Ker for Defendants, Appellee^.
    Argued and submitted February 26, 1898.
    Opinion handed down April 4, 1898.
    Rehearing refused May 16, 1898.
   The opinion of the court was delivered by

Nicholls, C. J.

This case was, by judgment of this court, rendered in 1896, and found reported in 48 An., p. 1282, remanded to the District Court for further proceedings.

The plaintiffs in the suit claimed to be the owners of certain property described in their petition which they alleged was in illegal possession of the defendants under an unwarranted and unjustifiable claim of ownership based upon a tax sale to N. Antonio de Monasterio on the 25bh of February, 1876. They averred that notwithstanding the illegal adjudication of the property at tax sale, they, within six months of the same, made a legal tender to the purchaser of the price paid by him with fifty per cent, and all costs added, bu^ that he refused the tender and declined retransferring the property for any amount less than two thousand dollars. That De Monasterio had died, that he and his wife and his heirs had held the property in bad faith ever since February, 1876; that Monasterio had in the month of February, 1876, illegally and forcibly and maliciously ejected and dispossessed them of the possession of the property, and by reason of said acts had come under a liability to plaintiffs for rental, and also for actual and exemplary damages — the damages being fixed at over eight thousand dollars and the rental at the rate of fifteen dollars per month, from the date of taking possession, February 25, 1876. They prayed judgment for the ownership and possession of the property with rents and damages as declared upon in the petition. Defendants answered that at the date of the purchase at the tax sale, Edward Talle and the community .between him and his wife, Teresa Loren (the said wife being then living), were indebted to Monasterio for groceries sold him in the sum of five hundred dollars; that he also owed him about two hundred dollars for city and State taxes paid by him at his request; that he had also acquired from one Dr. Lott, a note of Talle’s for four hundred dollars; that the whole of this indebtedness amounting to eleven hundred dollars was recognized by Talle as being due by him to Monasterio at the time of the sale. That just before and at the time of said tax sale, Talle asked him to purchase said property, giving as a reason that he was heavily in debt, and was unable to pay the taxes, and he, Monasterio, was his creditor and he desired him to become the purchaser.

That in consequence of said special request he purchased the property, and as a consideration therefor canceled Talle’s indebtedness to him of eleven hundred dollars.

That after he had so purchased the property Talle entered into a contract of lease with him and for a period of about eighteen months actually paid him rent for the property. That thereafter he failed to pay the monthly rent, and Monasterio sued and recovered judgment against him therefor. That failing to pay the judgment Monasterio brought suit to recover the possession of the property and obtained a judgment against him under which he was legally ejected and evicted from the premises.

That Talle set up no right or claim to said property in any of said judicial proceedings, but as in duty bound acquiesced therein, and he was estopped from setting up any title to the property. That since the sale Monasterio had paid taxes on the property to an amount of about twelve hundred dollars.

The prayer of the answer was that plaintiff’s demand be rejected . with costs; that the property referred to be decreed to belong, legally to the succession of Monasterio; that plaintiffs be decreed estopped from setting up the nullity and invalidity of the title for the reasons stated. Defendants, reserving the right to answer (further) if need be, prayed that the title to the property be decreed good and valid and for general relief.

On the 25th of March, 1895, the District Court rendered judgment in favor of the plaintiffs, setting aside the tax sale under which the defendants claimed the ownership of the property and decreeing plaintiffs to be the owners of the same. It also rendered judgment dismissing plaintiffs’ demand for damages and decreed that defendants pay the costs.

Plaintiffs appealed from this judgment.

Defendants did not appeal, nor did they on appeal pray for any amendment or modification of the same.

On appeal the Supreme Court reversed the judgment of the District Court, setting aside the tax sale and decreed that plaintiffs’ demands be rejected at their costs.

In the body of its opinion this court, referring to the judgment of the District Court appealed from, said that it annulled the sale and “ decreed the plaintiffs to be the owners of the property — rejecting their demand for damages — that it made no disposition of defendants’ pleas of prescription — the claims for revenues being compensated doubtless by taxes paid,” etc.

On application for a rehearing appellants called to the attention of the court that defendants had not appealed from the judgment, nor prayed any amendment or modification of the same, and insisted that in view of that fact the only matters before the court for review was plaintiffs’ demand for damages, which had been rejected, and for revenues, as to which the judgment appealed from was silent. That the correctness of the judgment as to the legality of the tax sale and the ownership of the property was not, under the circumstances, before the court.

This court, considering this contention to be well founded, set aside the judgment it had first rendered, substituting in its place (Talle vs. Monasterio et als., 48 An. 1232) the following judgment: “It is ordered, adjudged and decreed that the judgment of this court previously rendered in this case be set aside and annulled. It is further ordered, adjudged and decreed that the judgment of the lower ■court, in so far only as it dismisses and rejects plaintiffs’ demands for fruits and revenues, be annulled; said judgment, in so far as it decrees plaintiffs the ownership of the property, and dismisses defendants’ reconventional demand, being left in full force and untouched by this decree, and it is further ordered and decreed that as to fruits and revenues of said property, the right to claim which is reserved to plaintiffs, that this case be remanded to the lower court for further proceedings and another trial, and that defendant pay ■costs.’.’

Upon the return of the case to the District Court the defendants filed an amended or supplemental answer, in which they alleged that in addition to the indebtedness of plaintiffs to defendants as set forth in their original answer and as further offsetting any claim which plaintiffs might have for rents and revenue-, they had, since their purchase at tax sale of the property, paid for the preservation of the same at least one hundred and forty-four dollars insurance premiums, two hundred dollars for repairs, and two hundred dollars or thereabout for taxes due at the date of purchase, this being an indebtedness due by plaintiffs in addition to the eleven hundred dollars detailed in their original answer. That the city and State taxes paid by them since their purchase, with legal interest thereon, aggregate fully six hundred and fifty dollars, which they were also entitled to plead as an additional offset against any claim which plaintiffs might have for rents and revenues, respondents having been possessors in good faith. They prayed that plaintiffs’ suit be dismissed and their plea of compensation of two thousand three hundred and eighty-nine dollars be maintained against any claim which plaintiffs might establish as due them for fruits and revenues.

Plaintiffs objected to the filing of this answer, on the ground first, that it came too late, that no supplemental or amended answer could be filed at that stage of the proceedings, because the cause had been remanded by the Supreme Court on a particular issue and on the papers and pleadings on file; that it set up a counter claim or set-off in addition to the one in the original answer; that this claim for taxes, insurance and repairs was disallowed by the Supreme Court and its judgment had the forcé of res judicata; that if defendants had had any additional claim it should have been urged when the original claim was urged and it was now too late to do so.

The court overruled the objections. It stated it considered that it had the right to permit the amended answer under its discretionary powers; that it did not place the same interpretation upon the decision of the Supreme Court which counsel did.

To this ruling plaintiffs excepted.

Upon the trial of the ease plaintiffs objected to any evidence going to support defendants’ claim in compensation on the ground that that issue was not before the court, the claim of the defendants having been dismissed by the District Court and affirmed by the Supreme Court on appeal. The court overruled the objection. The testimony was admitted and plaintiffs excepted.

The District Court rendered judgment in which it declared that “ on the second trial the court finds the amount of rents and revenues to be sixteen hundred and sixty-one dollars; that defendant is entitled to plead in compensation the following amounts paid by them:

Not© clue by plaintiffs to defendants.................................. $400 00

Groceries, etc............................................................................ 500 00

Repairs of property................................................... 300 00

Insurance ................... 144 00

States taxes............................................................................ 252 38

City taxes.................................................................................. 723 53

Total.....................................................................................$2,319 58

That “ defendants’ supplemental answer and plea in compensation is therefore maintained and plaintiffs’ suit for the fruits and revenues is dismissed, plaintiff to pay all costs.”

In its reasons for judgment it said: “ The court understands that this case has been remanded by the Supreme Court to claim the fruits and revenues of the property decreed by this and the Supreme Court to belong to the plaintiff. This included also the right of defendant to plead de novo whatever claim she may have in reconvention or set-off.

The court understands the Supreme Court to have affirmed the-judgment of this court in so far as the real estate and plaintiffs’ claim for damages are concerned, the only questions before them on appeal.”

The plaintiffs appealed.

The first question we are called on to consider is the correctness» or incorrectness of the action of- the District Oourt in permitting defendants over plaintiffs’ objection to support their plea in compensation by testimony.

Plaintiffs’ objections were that the District Oourt, in its original judgment, had dismissed all claims which defendants had set up, and that the Supreme Oourt, on plaintiffs’ appeal, had affirmed the judgment of the lower court to that effect. In this proposition, plaintiffs are in error. Plaintiffs, in their petition, claimed to be the owners of the property, contending that their ownership had never been divested through a certain tax sale, under which they averred defendants were in possession and under which they claimed title; that defendants obtained possession of the property in bad faith and through force and their possession had continued such; that plaintiffs were entitled not only to the property and its possession, but to damages for the forcible taking possession of the property and for fruits and revenues ever since it was taken possession of.

Defendants met the attack by jihe general issue. They then contended that Talle, being heavily indebted to Monasterio (the defendant) and to other parties and unable to meet his obligations, suggested to Monasterio that as he could not meet his obligations nor pay the taxes on the property, that it be sent to sale, and that he buy it and cancel the indebtedness which plaintiff was under to him; that Monasterio agreed to this and bought the property at tax sale. That he canceled Talle’s debt, as he had agreed to do, and that after his purchase he had paid the taxes on the property and made various outlays upon the same which he detailed. That after his purchase, Talle agreed to hold possession as lessee and pay rent and did so for for some time, but failing Anally to pay rent, he was evicted from the premises and defendants took and had held actual possession ever since. Defendants, in their answer, claimed the ownership of the property, and contended that under the circumstances stated plaintiffs were estopped from raising any question as to the legality of the tax sale, which, quoad the plaintiffs, was a sale proposed by .and acquiesced by themselves.

On the trial of the cause defendants do not appear to have made out to the satisfaction of the court the circumstances of the tax sale -to have been such as to estop the plaintiffs from contesting its legality. Applying legal tests to that sale, the court was of opinion It could not stand, and, therefore, set it aside and decreed plaintiffs be still the owners of the property. It rejected plaintiffs’ demand for damages, and was silent as to plaintiffs’ demand for fruits .and revenues, and also silent as to any right of possession.

It will be seen that defendants filed no plea either in reconvenlion or in compensation, but relied upon being declared to be the owners of the property under the peculiar circumstances under which they took possession of the property.

It was only after the court had determined to set aside and had set aside the tax sale itself, and by so doing had deprived defendants of the ownership claimed, that the question of the attitude of the plaintiffs and the defendants relatively to each other by reason of the claim for fruits and revenues on the one hand and the indebtedness of the plaintiffs to the defen dánts and the fact of the disbursements made by defendants on the property, on the other hand, came to be considered and disposed of by the court not under any plea of recowuention or compensation made, but evidently under defendants’ prayer for general relief, and as equitable conditions attached by the court to the granting of plaintiffs’ demand for ownership. This court was clearly right in the view taken by it in its first opinion, that the failure of the District Oourt to give plaintiffs judgment for fruits .and revenues was obviously, because whatever claims plaintiffs might have had to the same were met and compensated by just claims for offsets.

Defendants were evidently satisfied with the judgment of the Dts•trict Oourt and the disposition made by it of the question of revenues as well as that of ownership, for they did not appeal, nor did they pray on plaintiffs’ appeal for an amendment of judgment.

When this court, in its original judgment on appeal, overlooking the latter fact, examined the question of the legality of the tax sale and declared the sale legal — as a matter of course no mention was made of revenues, as the conclusion reached caused that question to disappear.

When on rehearing it was brought to our attention that defendants had substantially acquiesced in the judgment, we were forced by reason of that fact, and that fact alone, to set aside our judgment and leave matters on the question of ownership, as the judgment of the District Oourt left them. That result necessitated a consideration by us of the demands of the plaintiffs for damages and fruits and revenues to which it had not been necessary before to discuss or examine. . We came to the conclusion from this examination that the judgment of the District Court, rejecting plaintiffs’ claim for damages, was correct, but not being satisfied as to the state of the evidence on the subject of fruits and revenues, we reversed the judgment of the District Court, which, on that issue, was substantially and practically one adverse to plaintiffs, and remanded the case for further proceedings, but in view of the fact that defendant had acquiesced in the judgment, it was our intention to send the case back under circumstances such as not to permit defendant on the second trial to take or to gain any position which would be inconsistent with such acquiescence on their part. It was our purpose and intention to force defendants on the return of the cause to occupy a purely defensive position and cut them off from pleading any reconventional demand, by and through which a judgment over against plaintiffs could be obtained. We said nothing by which defendants’ right of resistance, offset or compensation to plaintiffs’ clsims for fruits and revenues, was to be cut off. It was only in so far as claims held by defendants might be sought to be made the basis for affirmative relief by defendants that we interposed a bar. Defendants and the District Court understood that matter correctly, for defendants did not attempt, on the second trial, to advance upon the plaintiffs, but simply resisted attack. This they were clearly entitled to do. The very question of ascertaining whether plaintiffs had a right to fruits and revenues involved an examination of any good reason which might exist for the non-existence of such right.

When the case went to trial after the tax sale had been finally disposed of, and the ownership of the property could no longer be reopened, the plaintiff Talle admitted as a witness on the stand that this tax sale which he had successfully attacked as being illegal had really been made use of by an arrangement between himself and De Monasterio to relieve the plaintiff from pecuniary embarrassments-which threatened him with a loss of the property from other parties. That De Monasterio bought the property at the tax sale under this arrangement and with his consent, though he denied that De Monasterio himself was his creditor at that time.

Seymour, a witness who seems to have been a friend of both parties and to have been well advised of the relations between them, testified that it was he himself who suggested to them that a tax sale be utilized for the protection of the plaintiff. He said that at the time of the sale Talle was indebted to De Monasterio, and he suggested that the latter buy the property and hold it until the debt due to him should be paid off. On this particular point he differs from the claim made by defendant, which is not that the property should be held in order to “ work out” the debt or as security, but that the purchase was absolute and not with a power of redemption. De Monasterio being dead the exact facts of the case are left in some doubt, but we are satisfied that Talle was indebted to De Monasterio at the time of the sale and acquired the legal title by reason of that fact with Talle’s approbation and consent. We are satisfied also that it was expected that De Monasterio should restore the property to Talle at some future time, but under what precise circumstances we do not know. Whether the return was conditional upon payment to be made within a given time, or whether De Monasterio was himself to “ work out ” the debt through his possession under the legal title acquired, does not clearly appear. A notice was given by Monasterio to Talle after the sale, on the 26th of April, 1876, informing him that the six months given by law for redemption of the property having elapsed and his title having become fixed, he would exact rent from him thereafter at the rate of fifteen dollars per month, commencing on the 1st of May, 1876; that if he did not wish to pay said rent he should consider the notice .as a landlord’s notice to vacate the premises by the first of June next following.

Talle remained for some time after the tax sale in possession of the property.

On the 6th of June, 1876, De Monasterio brought suit in the Fifth Justice Court for possession of the property. On tne 9th of the same month the case was indefinitely continued at plaintiff’s request, costs of court being paid.

In January, 1878, De Monasterio brought a second suit in the same .court for possession of the property and judgment was rendered in plaintiff’s favor against defeudant on the 14th of January, 1878, and .a writ of possession issued on the 23d of January, 1878, and plaintiff in that suit was placed in possession under the judgment; that judgment has never been reversed or' annulled or sought to be annulled or reversed.

Seymour explains the continuance of the first of these suits by saying that the parties had come to an arrangement by which Talle was to make monthly payments to De Monasterio, and that the second suit was by reason of the fact that Talle failed to make payments as he bad agreed to do.

In November, 1878, Talle brought a suit against De Monasterio (No. 2350), in which he alleged that he was the owner of the property that Monasterio'claimed to be the owner of, and was then in possession of the same under a tax sale; that he had no title to said prop- . erty, and could not, to petitioner’s annoyance, exercise ownership,, and that unless restrained and enjoined, he would interfere with petitioner in his right of ownership and enjoyment thereof.- He prayed for an injunction restraining Monasterio from interfering with him in any manner in the enjoyment and possession of the property or doing anything which interfered with him in the ownership and possession thereof, and that he be decreed the owner of the property. An injunction was ordered to',issue. He subsequently filed a supplemental petition, in which he alleged that Monasterio had been in the full enjoyment of the revenues of the property since the tax sale and was bound to account to him for the revenues at the rate of fifteen dollars per month. He prayed for judgment for such revenues. This suit was dismissed on the 26fch March, 1881.

Ip May, 1881, he brought another suit (No. 3404) against defendant for the ownership and possession of the property and for revenues at the rate of fifteen dollars per month from the date of the tax sale. He also alleged that he had been illegally and forcibly dispossessed of the property in February, 1877, and prayed for damages by reason thereof in the sum of eight thousand three hundred and seventy-four dollars.

This suit was dismissed on February 28, 1882, by reason of plaintiffs’ failure to give security for costs.

In June, 1882, plaintiff brought a third suit (No. 6312) against defendant, with allegations similar to those of No. 3404.

Talle’s daughter intervened therein, making herself a co-plaintiff - in November, 1882. In November, 1890, defendant excepted that whatever rights plaintiff Talle might have had in the premises had been seized and sold in the suit of a Mrs. Means against Talle, and had been purchased by R. C. Stockton and Talle had no further' interest in the suit.

On January 31, 1884, this suit was, on Talle’s motion, discontinued,, so far as he was concerned.

Plaintiffs subsequently brought another suit (No. 30926) against defendants wiih allegations similar to those in No. 3404 and 6312. The date of the filing of his suit is not given, but it must have been some time in 1890. Defendants pleaded "‘Ms pendens” by way of exception the pending suit referred to being suit No. 6312, which defendants averred had been illegally and ineffectually sought to be discontinued. The exception was sustained and this suit was dismissed in November, 1890.

In the meantime in suit No. 6312, which had been discontinued in so far as Talle was concerned, several proceedings took place notwithstanding the discontinuance, but in December 1893, on defendant’s exception that it should be dismissed as it had been discontinued, it was dismissed, the court assigning as a reason that it had been discontinued.

In September, 1893, the present suit was brought.

In none of these suits was there any allusion by Talle to the facts and circumstances under which Monasterio purchased the property or took possession. There was no allusion to any indebtedness as due by him to Monasterio — there was no demand for the transfer of the legal title and the surrender of possession under a tender of payment of any amount which he might owe him; there was no call for an accounting and a comparison as to how the parties might stand, but a direct attack simply upon the tax title, precisely as if it had been held by a third person having no anterior relations with him. Had Talle, on the trial of the suit which terminated in the District Court in setting aside the tax title, given the same testimony which he did after that decision had become final and the question of ownership could no longer be called in question, we have no idea that the court would have given the judgment it did. If defendants acquiesced in it, it must have been because they were satisfied to have the title returned to the plaintiffs under that portion of the court’s obvious decree that on the question of fruits and revenues there had been compensation to the extent of balancing the claims which plaintiffs and defenfants held against each. Had defendants appealed or prayed for an amendment of the judgment they would have obtained a reversal of the judgment as to the legality of the tax title as our original judgment shows. We are of the opinion that under the circumstances under which De Monasterio bought the property, he was entitled to hold possession of the same until the amount of Talle’s indebtedness to him and all amount which he was called on to pay by reason of his holding the legal title which enured to Talle’s benefit as amounts which he would have been forced to pay had he himself held the 'title should be tendered to him, or should have been acquitted. That Talle had no right to ignore defendants’ right of detention until a balancing of accounts had been had and to recover both the property and its fruits, leaving his debts unpaid. The District Court, both in its original judgment and in the judgment now appealed from, was of the opinion that any claims which plaintiffs might have had for rents was met and balanced by offsets and claims legally advanced by the defendants; in fact, it recognized claims as due by plaintiffs to defendants which were cut off only by reason of defendants’ pleadings and the judgment of this court holding defendant to a purely defensive position. We see no reason for decreeing that there was error jn the judgment appealed from, and it is hereby affirmed.


author: Nicholls, 0. J.

text:
    No. 12,630.
    The State vs. Albert Faber.
    The appellate jurisdiction of the Supreme Court in cases in which the constitutionality or legality of the fine, forfeiture or penalty imposed by a municipality was in contestation, is limited to a determination of the constitutionality ■ of the fine, forfeiture or penalty and to an examination of the particular facts necessary to be considered, in order to reach a conclusion on that subject.
    Proceedings directed against parties for violations of city ordinances should be in the name of the city, not that of the State.
    A PPEAL from the Fifth Recorder’s Orleans. Harper, J. Court of the City of New

      James J. MeLoughlin, Assistant City Attorney, and SamH L. Oil-more, City Attorney, for Plaintiff, Appellee.

      John O. WieJcliffe for Defendant, Appellant.
    Argued and submitted April 18, 1898.
    Opinion handed down May, 2, 1898.
   The opinion of the court was delivered by

Nicholls, 0. J.

An affidavit to the following effect was made before the fifth recorder of New Orleans:

“ On information received and belief, deponent charges that one Albert Faber, on Monday, September 13, 1897, between 12 and 12:30 o’clock, on Tuesday, September 21, 1897, between 9 and 9:15 o’clock A. m., and Monday, September 27, 1897, between 8 and 8:30 o’clock p. m. , at corner of Oherokee and Mississippi streets, and within the jurisdiction of this Honorable Court, then and there did wilfully and unlawfully sell liquors by the glass, etc., in violation of City Ordinance No. 7012, C. S., amended by City Ordinance No. 7199, O. S., contrary to the form of the statute in such case made and provided, and all against the peace and dignity of the State. Wherefore deponent charges accused with V. C. 0. No. 7012, C. S., amended by City Ordinance No. 7199, C. S., and prays that he be arrested and dealt with according to law.

The record shows that after trial “ the court, after considering the law and the evidence, fined accused twenty-five dollars or thirty .days parish prison, on each offence of the thirteenth, twenty-first and twenty-seventh days of September, 1897, or in total seventy - five dollars or ninety days parish prison in default of said fine.” .

Defendant appealed.

Article .7012, Council Series, is as follows:

Resolved, That it shall hereafter not be lawful for any one to set up or establish any drinking house, coffee house, beer house or place where liquors of any kind are sold at retail by the glass to be there consumed, without having first petitioned the Mayor and City Council; said petition to be published for ten days in the official journal at the expense of the petitioner.

“Be it further resolved, That after the expiration of the said ten days’ publication, there being no protest uttered against the petition, same shall be granted. Provided, however, that if any person or persons protesting against the opening of a saloon or drinking house, etc., they shall be heard before the Committee on Public Order of the City Council, and if there be any valid objections in the judgment of said.committee, said petition will not be granted.

“ Be it further resolved, That any violation of the foregoing ordinance will be punished by a fine of not more than twenty-five dollars •or not.more than thirty days’ imprisonment.”

On February 7, 1893, the City Oouncil passed Ordinance No. 7199, which reads as follows:

“ Be it ordained that Ordinance No. 7012, O. S., be and the same is hereby amended so as to read after the word published in line seven: Three times in ten days in such form as the Committee on Public Order may designate. In line eleven, after the word ‘said,’ strike out the words ‘ten days.’
“ Be it further ordained that all ordinances or parts of ordinances, conflicting with the provisions of this ordinance be and the same are hereby repealed.”

Defendant appeared and demurred to the affidavit, alleging that same was not sufficient in law and set forth no offence against any law of the State of Louisiana, or any ordinance of the city of New Orleans. That the acts therein set up do not constitute a violation of the ordinances Nos. 7912 and 7199, Oouueil Series, as therein set forth.

For further demurrer he alleged that Ordinance No. 7012, Council Series, and Ordinance No. 7199, Council Series, and all ordinances amendatory adopted prior to July 7,1896, have been and are repealed by Act No. 45 of the General Assembly of Louisiana, approved July 7, 1896, being the act providing a charter for the city of New Orleans, and specially by Sec. 21 of said act.

Wherefore he prayed that the affidavit be quashed and the prosecution dismissed.

The demurrer was overruled and defendant ordered to plead. To which action he reserved a bill of exception.

Defendant, under reservation, pleaded “Not guilty” — further pleading, he averred that neither the State of Louisiana nor the city of New Orleans could or should prosecute the charge made for the reason that on the twenty-second day of June, 1897, he was arrested, prosecuted, tried and convicted for the same offence in the affidavit set forth, to-wit: setting up and establishing a drinking house, coffee house, beer house or place where liquors are sold by retail by the glass to be there consumed at Mississippi and Cherokee streets, without a permission granted therefor by the Mayor and City Oouncil of the city of New Orleans, said arrest, trial, prosecution and conviction being in the cause styled State of Louisiana vs. Albert Faber, No. 4863 on the docket of the Fifth Recorder’s Court. Wherefore, he pleaded “ autrefois convict.”

The defences set up in the lower court were:

1. That the ordinances for the violation of which defendant was onx trial had been repealed.

2. That the complaint against him. was insufficient in law and set' forth no offence against any ordinance of the city.

S. That the acts set up therein did not constitute a violation of the, ordinance.

4. That he had already been convicted and sentenced for the same* offence.

The ease is before us on appeal. Our appellate jurisdiction in matters of this character is, as we have repeatedly had occasion to say, exceedingly limited. In State vs. Zurich, 49 An. 456, we stated that in order that a casé should be properly before us we should be able to declare, and should in fact declare, that the ordinance whose violation was sought to be punished was or was not legal and constitutional. It is the constitutionality or legality of the imposition by the Common Council, not the legality or constitutionality of the imposition by the Recorder, of a fine or’penality, that we are called to pass on. Applying these tests to this case, it will be at once seen that we have no jurisdiction in the case. Appellant urges upon us not the illegality or unconstitutionality of the ordinances which he is charged with having violated, but their non-existence. That is not a matter of which we can take cognizance under the special remedy sought. If the ordinances have been repealed as claimed, the Recorder was acting without authority of any law; he was without power or jurisdiction in the premises, and his action should be attacked by certiorari and prohibition. The, same thing could be said if the Recorder sought to apply the ordinances to a state of facts to which they were not applicable. If it, be true as alleged that the complaint filed against defendant was so radically defective as to be violative of constitutional or legal rights as to be an absolute nullity, or if the proceedings taken under the ordinances, or the fine or penalty imposed by the Recorder, were, as alleged, radically wrong and in excess of his jurisdiction, the wrong can not be righted by appeal, unless the wrong is traceable to, and! resting upon,' the illegality or unconstitutionality of the ordinance, itself, which the Recorder is seeking to enforce. If, for instance, a. common council being without power to declare the doing of a particular act to be a misdemeanor, triable by criminal proceedings,.. should undertake so to do, declaring that any person “convicted” of a violation of the ordinance should be punished by imprisonment, a case would be presented where the council would have enacted as part of the ordinance an illegal methodjof procedure, which could not be detached from it. The ordinance defining and fixing the mode of procedure and making the infliction of punishments dependent upon “ conviction” a Recorder called on to enforce such an ordinance would be forced to conform to its terms and to proceed against any party violating it through criminal proceedings. In such a case a party “convicted” and sentenced to be punished, could complain of a method of procedure which would cut off an examination of the facts of the case by an appellate tribunal, and he would be entitled to an appeal from a conviction under such a proceeding, if in the lower court he had contested the legality of the proceedings, urging the illegality of the ordinance in attempting to ■impose and in imposing such a method of procedure. The illegality of the proceedings in such a case would go back to the illegality of the ordinance authorizing it, and not merely rest upon the illegality of the proceedings themselves as taken by the Recorder.

We take occasion to say that the acts complained of are not violative of the statutes of the State, as declared and should not have been so charged, and that proceedings of this character should be in the name of the City of New Orleans, and not of the State of Louisiana. They are not prosecutions of the kind referred to in Art. 86 of the Constitution.

The appeal must be and it is hereby dismissed.

Mr. Justice Miller — I concur in the decree.