text:
    No. 11,576.
    State ex rel. Otto H. Schoenhausen vs. Fred. D. King, Judge of the Civil District Court, Division B.
    The law — Code of Practice, Art. 308 — means by punishment for contempt, punishment for the offence at the outset, to prevent its repetition; and punishment afterward for the repetition of the offence.
    If the contempt is permitted to endure for a period of days, or weeks, or months, it does not seem consistent with the law to punish for that period of disobedience by as many sentences of ten days’ imprisonment as there are days, or weeks, or hours in the period. No such theory of the power to punish for contempt can be admitted, under the law.
    y^PPLlCATION for writs of Certiorari and Prohibition.

      Lionel Adams and Thomas M. Gill for Relator.

      Lazarus, Moore & Luce for Respondents.

      Submitted on briefs November 12, 1894.
    Opinion read April 8, 1895.
   The opinion of the court was delivered by

Watkins, J.

The application of relator was presented to one of the justices of this court for examination and the allowance of an alternative writ, and upon examination thereof he found substantially the following facts, and we recapitulate them as follows, viz.:

“ The petitioner, enjoined from conducting a concert saloon in disregard of the laws and ordinances, kept his saloon open for a period and was thereupon proceeded against for contempt for violating the injunction. At one and the same time eight rules were taken to punish him for contempt, each rule assigning the violation of the injunction on a particular night of the period of the opening. Each rule was made absolute, imposing a penalty of ten days’ imprisonment, so that, beginning with the first ten days, the remaining terms of imprisonment were to be inflicted until the petitioner had been confined eighty days. The applications for the writs raise the issue, whether it was competent for the lower court to sentence the petitioner on these eight rules, the sentences all pronounced at the same time, to eighty days’ imprisonment. That issue of competency is within the power of this court to review. Constitution, Art. 90; DeBuys’ case, 32 An. 1259; State ex rel. Sinnott vs. Falls, 32 An. 555; State of Louisiana ex rel. McGee, Snowden & Violett vs. Judges, 33 An. 181.

“ When the power of the court is invoked to punish for contempt for conducting a saloon contrary to the laws and the injunction of the court, it seems to me, the court is called on. to inflict the appropriate penalty not to exceed the maximum of ten days. If it is competent to divide the offence of conducting a saloon in disregard of the law into parts corresponding with the number of nights the saloon has been opened, and thus authorize eight sentences of ten days each pronounced at the same time, on eight different rules, there would be no potency in the law fixing the maximum penalty for contempt at ten days’ imprisonment. O. P., Art. 131.

“ The same theory of dividing the offence into parts might be extended to the hours of the days of the opening, treating each hour as .a distinct offence, and thus sanction an indefinite and prolonged imprisonment, notwithstanding the limitation of ten days in the Code. It was competent at any time during the period of the opening of the saloon for the plaintiff in injunction to call on the court to inflict the penalty for contempt. The penalty thus inflicted would -doubtless have sufficed, and if the offence was repeated the penalty might be again inflicted until- the evil was checked.

“ This, it seems to me, is the theory of the law authorizing punishment for contempt and for each contempt. The law means punishment for the offence at the outset, to prevent its repetition, and -punishment afterward for the repetition. This is expressed in Art. 308 of the Code of Practice. See also The State ex rel. New Orleans Water Works Company et al. vs. Isaac Levy et al., 36 An. 941, 945. If the contempt is permitted to endure for a period of days or weeks or months, it does not seem consistent with the law to punish for that period of disobedience by as many sentences of ten days’ imprisonment as there are days, or weeks, or hours in the period. If -that were so, then if the plaintiff in injunction had deferred his añiles for even a month, the term of imprisonment would have been three hundred days. No such theory of the power to punish for ■contempt can be admitted, in my opinion. The case to-day is that ■of a saloon-keeper, but the principle involved would, if allowed, apply to every case of contempt for violation of injunctions, and sanction, in my view, the imposition of penalties never within the purview of the law.

“ The case presents the important question of the extent of the power of courts to punish for contempts. The power within the limit prescribed by the Code is absolute. There is no review here, or in any court, save on the question of the jurisdiction to impose the penalty. There is the greater reason for this court, charged with the revision of the issue of jurisdiction, to see that the penalty imposed is within the scope of the law defining and limiting the power to punish for contempt.

* ijs * rft * sfc . *

“ The penalty of ten days’ imprisonment was fully authorized. .The defendant has served an imprisonment of ten days. For any further violation of the preliminary or modified injunction, he may be punished as the occasion arises. By this method, the reservation of which will be made in order on relator’s application, the injunction can be enforced and the public fully protected against the alleged nuisance.

“ Applications of this character to this court are necessarily to a single judge, but come before the full court for final action in November. I have given the subject close attention, and my conclusion is the rule to show cause, and the discharge of the relator in the meantime, should be granted. State ex rel. Behan vs. The Judges, 35 An. 1075. If, on full discussion of the question of the power of courts to punish for contempt, the sentences of this defendant are deemed within the law, he will be remanded to serve the residue of the imprisonment. If, as I believe, the sentences are determined to be in excess of the jurisdiction of the lower court, the propriety of this order will be confirmed.”

Since the issuance of the foregoing order the respondent judge has made a return — one that is similar in character to the one he filed in the suit of same title, ante., p. 696 — and he then further states “ that on the (blank) day of June, 1894, some eight rules were taken against the relator charging him with having violated the preliminary and modified injunction issued in the case of James A. Koehl et al. vs. O. H. Schoenhausen, No. 40,999, then pending in Division B of the Civil District Court,” etc.

He further returns that there was a trial had on those rules and “that a judgment was thereon rendered,” and “that in pursuance of said finding and judgment (he) committed the relator * * * to jail for a period of ten days for the violation of said modified order of injunction committed on the 19th of June, 1894, and for a subsequent violation on the 20th of June, 1894, for a period of ten days, to commence at the expiration of the first sentence, and so on, your respondent committing the relator for a term of eighty days in all, under all of said rules, for violations aforesaid as charged therein.”

He further avers “that the violations of the said modified order of injunction, with which the said relator was charged, were distinct and separate violations, and the said Schoenhausen, having so committed distinct, specific and separate violations, your respondent, under Art. 308, C. P., punished the said relator for contempt for each of said violations of the said modified order of injunction.”

And he further avers that as there have been no adjudications by the courts of the State of Louisiana as to the interpretation to be placed upon Art. 308 of the Code of Practice; and as under said article * * * he had a right to punish the relator for each violation of said modified injunction, he was of opinion that it was his duty to so commit relator, and that it was his jurisdiction and right to do so.”

He further returns “ that while the acts were charged to have been committed on so many different days, that by reason of the nature of the business conducted by relator, his said concert saloon would be open on each day * * * and that during the opening, and until the close of said establishment, the said relator would violate the said modified order of injunction by conducting his business in violation of the laws of this State, and the ordinances of the city of New Orleans, and so as to create a nuisance; that (he) being of the opinion that he had the jurisdiction and legal right to punish relator for each violation of said modified order, did so punish and commit him.”

A careful comparison made between the statement of the foregoing return and that of the alternative order discloses no substantial difference in point of fact; and the court is of opinion that the justice granting the order entertained a proper appreciation of Art. 308 of the Code of Practice.

It provides that “if one against whom an injunction is directed violates the same, or refuses to obey, the court may * * * punish by imprisonment not exceeding ten days, but which may be repeatedly inflicted until the party obeys the mandate of the court,” etc.

As the justice very justly and correctly observed, “ if it is competent to divide the offence of conducting a saloon in disregard of the law, into parts corresponding with the number of nights the saloon has been opened, and thus authorize eight sentences of ten days each, pronounced at the same time, on eight different rules, there would be no potency in the law fixing the maximum penalty for contempt at ten day’s imprisonment. O. P., Art. 131.

“ The same theory of dividing the offence into parts might be extended to the hours of the days of. opening, treating each hour as a distinct offence and thus sanction an indefinite and prolonged imprisonment, notwithstanding the limitation of ten days in the Oode.

“ It was competent at any time during the period of the opening of the saloon for the plaintiff in injunction to call on the court to inflict the penalty for contempt. The penalty thus inflicted would doubtless have sufficed; and if the offence was repeated the penalty might again be inflicted, until the evil was checked.”

This, it seems to me, is the theory of the law authorizing punishment for contempt, and for each contempt.

“ The law means punishment for the offence at the outset, to prevent its repetition, and punishment, afterward, for the repetition.”

This is, in our opinion, a proper case for granting the relief prayed for. State ex rel. Behan vs. Judges, 35 An. 1075; State ex rel. DeBuys vs. Judges, 32 An. 1257; State ex rel. Follet vs. Judge, Id. 1182.

It is therefore ordered and decreed that the sentence and decree of the respondent be recognized as legal and valid, in so far only as it inflicted imprisonment for ten days for contempt of the modified order of injunction; and in all other particulars, annulled and vacated.

It is further ordered and decreed that, inasmuch as the record discloses that the relator has already suffered ten days’ imprisonment .under the decrees of the respondent, he is not liable to any further imprisonment thereunder, and is entitled to his liberty; and it is further ordered and decreed that all the various sentences and decrees of the respondent, except the first one, be vacated and annulled, and the alternative writs be made peremptory and perpetual.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 11,694.
    Vicksburg, Shreveport & Pacific Railroad Company vs. Lem Scott, Sheriff and Tax Collector, et al.
    This court has jurisdiction ratione materice to try a case involving the constitutionality and legality of a local assessment for levee purposes, though the amount involved is less than two thousand dollars.
    A judgment of non-suit is appealable as a final judgment.
    Physical inability to be present and manage the trial of a cause is good ground for continuance; and same being refused, and the suit of plaintiff being dismissed, it is good reason why the cause should be reinstated for trial.
    APPEAL from the Sixth Judicial District Court for the Parish of Richland. Ellis, J.

      Frank P. Stubbs for Plaintiffs, Appellants.

      Robert Whetstone for Defendants, Appellees.

      Argued and submitted March 25, 1895.
    Decided April 8, 1895.
   Motion to Dismiss Appeal.

The opinion of the court was delivered by

Watkins, J.

The motion to dismiss is placed on the grounds: 1, that this court is without jurisdiction ratione materise because the amount involved is less than two thousand dollars; 2, because, under Art. 536 of the Oode of Practice “ a judgment dismissing plaintiff’s demands ” is not an appealable judgment; 3, because the judgment appealed from is one of non-suit as to the principal cause of action, and one adjudging the plaintiff to pay to the d fendant seventy-five dollars on his reeonventional demand.

(1) Looking to the plaintiffs’ petition we find it to be an opposi • tion to a proceeding by seizure and sale coupled with an injunction restraining sale of its road-bed and twenty-six and one-tenth miles of its track, for the purpose of collecting the sum of one thousand seven hundred and seventy-two dollars, as the total amount of a certain alleged forced contribution — by the petition denominated a “tax” — which was levied under Act 103 of 1892, for the year 1893.

The averment of the petition is that said tax or contribution was not legally assessed by the Tensas Basin Levee Board, by whom said proceedings were originated and directed.

Petitioner alleges that said legislative act, and the acts preceding it, upon the same subject, are illegal, unconstitutional, null and void, in that it discriminates against individual objects of taxation in the same class, and compels a contribution from some railroads double the amount that is required from others. Further, in that they violate the provisions of Art. 209 of the Constitution in providing for exactions of contributions on real estate not subject to inundation. “That if the assessment sought (to be enforced) is not justified or supported by benefits actually or presumptively received by the property subjected to it, that said contribution manifestly exceeds any possible benefit that may be conferred by said board.”

He further alleges that Act 103 of 1892, Act 59 of 1886 and Act No. 26 of 1884 — all on the same subject — are unconstitutional, null and void, as violative of Arts. 6, 48, 156, 203, 209 and 214 of the Constitution of the State of Louisiana in the particulars above recited inter alios.

The jurisdiction of this court is ful] and complete.

The purport of our opinion in State ex rel. Hill vs. Judges of the Court of Appeals, 46 An. 1292, was that, notwithstanding forced contributions for levee purposes are treated as local assessments not subject to the rule of constitutional uniformity applicable to general taxation, they are taxes under Art. 81 of the Constitution conferring on this court appellate jurisdiction in all cases involving the constitutionality or legality of any tax, impost or duty whatsoever.

■ (2) It has been frequently decided that a judgment of non-suit is an appealable judgment in the sense of Art. 565 of the Code of Practice.

It declares that “ one may appeal from all final judgments,” etc.

In State ex rel. Ikerd vs. Judge, 35 An. 212, we said:

“ The judgment sustaining an exception and dismissing the petition and prayer is not an interlocutory order. It is a judgment which has the character of finality, as it severs and dismisses from the action a part of the demand. Whether, under that judgment, the plaintiff in the suit be debarred from bringing or not a new suit, it is unnecessary to determine. It is enough that the judgment be a final judgment to ent;tle the relator to an appeal.” Code of Practice, 536, does not relate to an appeal, but appertains to the rendition of judgments by default.

In Davis vs. Young, 35 An. 740, a similar motion was made to dismiss an appeal, but it was refused by the court in these words, viz:

“ The motion to dismiss can not prevail.

“The appeal is from a judgment of non-suit, which'disposes of the case, and is such as can be appealed from.”

This court has no jurisdiction of the judgment for seventy-four dollars rendered in favor of defendant on hisreconventional demand, because the amount claimed in the demand in his answer is only three hundred dollars — an amount far below the lower limit of our jurisdiction.

Consequently defendants and appellees’ motion will prevail as to the judgment on his demand in reeonvention; but in respect to the principal demand it must be overruled.

On the Merits.

It appears from the record that this cause was set down on the 13th of September, 1894, for trial on the following day, the 14th of said month, defendants’ answer having been filed on the 12th of that month’. That on the 14th, the day_set for the trial, the- suit was dismissed at plaintiff’s cost, both the plaintiff and his counsel having been previously called at the court house door and failed to appear or answer.

Subsequently, plaintiff, represented by. counsel, approved and filed a motion in writing, praying that the cause be reinstated and continued, because:

1. The case was set for trial without any notice to plaintiff or his attorney and out of its regular order.

2. That it was absolutely impossible for his attorney to be present, on the 14th of September, owing to his physical inability, and these facts were made known to the defendants’ counsel previous to the trial and communicated to the court. Also,

3. That on account of its counsel’s physical inability to attend court, the case and counsel were called, and at the request of defendants’ counsel the case was dismissed, and hence the judgment' rendered was and is contrary to law.

This motion was fixed for trial.

The testimony of one witness is to the effect that Mr. F. B. Stubbs, the principal counsel for the plaintiff, was sick at the time. His statement is:

“Mr. Stubbs, I know, has been sick from a day prior to his trip to Virginia until now. He has rheumatism, or some kindred disease, which seems to be very painful to him, and he has fixed several dates for leaving for Hot Springs, but has been prevented from leaving until this morning. Any other person in his condition would have gone long ago. I am not employed by the railroad company in its general litigation, and am under no obligation to look after its general business of this character.”

This witness was Mr. Russell, of the law firm of Stubbs & Russell. He further says:

“It is by arrangement with Mr. Stubbs that (he) attended to matters outside the line of (his) special employment. This case does not belong to a matter of professional business in which (he) is employed to act by the plaintiff.”

On this and other testimony the judge a quo trie! the motion and overruled it; and to his ruling plaintiff reserved a bill of exceptions.

In our opinion the record shows that the plaintiff is entitled to relief, as it is evident that its counsel was physically unable to attend and conduct the trial of the cause, at the time it was set down for trial.

What we have premised in our views on the motion to dismiss, with regard to the character of the controversy, clearly evidences the importance of the controversy, demanding care and skill in its management. And the company was entitled to the best efforts of its counsel in the prosecution of their suit, and his sickness was ample warrant for its continuance for the term.

In Patin vs. Poydras, 5 N. S. 639, an appeal was presented upon a single bill of exceptions taken by the plaintiff to th -, refusal of the judge a quo “ to continue the case in consequence of the indisposition of (his) counsel ” — an affidavit setting forth the facts having been tendered and refused.

The court say :

“ We are of opinion that the court erred in refusing the continuance. It appears that the counsel who had the principal charge of the case, and on whom plaintiff placed his greatest reliance, was unable to attend from illness. This was a good reason for postponing the trial. The contrary doctrine would lead to intolerable hardships.”

The judgment appealed from was reversed and the cause remanded.

To the same effect are the following decisions, viz.: Barry vs. Louisiana Insurance Company, 12 M. 484; Baillio vs. Wilson, 6 N. S. 335; Marrero vs. Nunez, 3 An. 54.

On the law and evidence, our conclusion is that the judgment appealed from should be annulled and reversed, and the cause remanded and reinstated for trial.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the cause be remanded and reinstated for trial, and that the defendant and appellee be taxed with the cost of appeal.


text:
    No. 11,750.
    Standard Cotton Seed Oil Company vs. Peter Mathison.
    Mention in tlie caption of a writ of attachment of an improper judicial district, in one of the country parishes of the State, is not such a radical error as will authorize the dissolution of the writ on the motion of defendant.

      APPEAL from the Seventh Judicial District Court, Parish of East Carroll. Montgomery, J.

      Charles S. Wyly and Gus A. Breaux for Plaintiffs, Appellants.

      Leonard K. Barber and C. F. Davis for Defendant, Appellee.
    Argued and submitted March 29, 1895.
    Decided April 8, 1895.
   The opinion of the court was delivered by

Watkins, J.

From a judgment dissolving plaintiffs’ attachment the company has appealed.

From the record, it appears that plaintiff filed suit against defendant on open account for two thousand nine hundred and eleven dollars and eighty-eight cents on the 7th of November, 1893, accompanied by a writ of attachment, and also apon a note and mortgage securing two thousand dollars of that amount, less a credit of two hundred and fifty dollars.

That under the petition, oath and bond, a writ of attachment was issued on the following day, the 8th of November, 1893, and defendant’s property was attached. On the 20th of December, 1893, defendant’s counsel filed a motion to dissolve the attachment on grounds it is needless to enumerate. This motion remaining undis-posed of until the 5th of April following, defendant supplemented his motion to dissolve on the new and additional ground that it purported to have issued from the Eighth Judicial District, of which the parish of East Carroll formed no part, said parish forming a part of the Seventh Judicial District.

That upon the same day (April 5, 1893), during the pendency of said supplemental and original motions to dissolve, another writ of attachment was issued, and thereunder the same property was attached.

That the original and supplemental motions were set down for trial, and upon the trial thereof judgment was rendered dissolving the original writ of attachment.

That immediately after the rendition of the judgment dissolving he original writ of attachment the defendant filed a motion to summarily dissolve the second writ, on the ground that it issued without bond and affidavit, and on the trial, on the following day, judgment was rendered dissolving it also, the attachment bond being held to be applicable only to the first writ issued.

The plaintiff appealed from both judgments.

In this situation of the case, the defendant filed a motion to dismiss the appeal from the first judgment, on the ground that the plaintiff and appellant had acquiesced therein by abandoning the first writ of attachment by causing the second one to issue pendente lite, the statement of the motion being, substantially, that on the same day that the supplemental motion to dissolve was filed, and before the trial thereof, plaintiff abandoned the old writ by causing the new one to be issued and same property to be attached.

The further statement is that upon the following day the aforesaid judgment was rendered dissolving the writ. The motion further states, viz.:

Now your appearer respectfully submits that by taking out the second writ of atttachment in the manner aforesaid, plaintiff abandoned the first writ, and acquiesced in the pro forma judgment dissolving the same. ’ ’ <

In the alternative the attorney for the appellee requests this court to dismiss the appeal, for the reason that the two judgments are embraced in one order of appeal, and are covered by a single appeal bond.

In our opinion the motion can not prevail; as on appellee’s own showing the alleged acquiescence preceded the judgment by one day; and that is no acquiescence at all. Taking appellee at his own appreciation of the issuance of the second writ, it was good reason why he should have withdrawn his motion before trial and judgment. But after a formal trial on evidence adduced, and a judgment is pronounced in his favor, it comes with but indifferent grace from him to insist upon the dismissal of the plaintiffs’ appeal, on the ground that the writ was withdrawn and the seizure abandoned the day before judgment was rendered in his favor.

We can not perceive any good reason why the single order could not appropriately embrace the two interlocutory decrees; or why it' was necessary that plaintiff should furnish two appeal bonds. The two writs, as well as the two rules and the two judgments, are germane, if not synonymous and simultaneous.

In our opinion there is much stronger reason for the application of ' the rule of acquiescence to the defendant, because of his having originally moved to dissolve the atfachment, on the ground that the sureties were insolvent and the affidavit untrue, and having long subsequently urged complaint of a clerical error in the writ of attachment.

On the merits the appellants’ contention is that on the heading of the writ of attachment which was issued on the 8th of November, 1893, the number of the judicial district is mentioned as the eighth, an incorrect, number while the number given in the writ which issued on the 5th of April, 1894, is the seventh district, the correct number; and that this mistake is purely elerieal and the fault, if any, was imputable to the clerk of the court who issued the writ. That as soon as attention was attracted to this elerieal error by the filing of defendant’s motion on the 5th of April, 1894, the clerk issued another writ in which same is corrected, and this was served personally on the defendant. That .as the suit was filed in the court of the parish of East Carroll, and accompanied by proper bond and affidavit, the error was apparent at a glance and perfectly innocent in itself.

This error appears in the heading or caption of the writ thus, viz.: .

“State oe Louisiana.

“Seventh Judicial District Court,

“ Parish of East Carroll, La.

“ Standard Cotton Seed Oil Co. vs. “ Peter Mathison.”

The only evidence we have upon the question is that afforded by the two writs which were offered on the trial.

In our opinion the theory of the plaintiff is correct, and the pleadings, affidavit, order and citation must control and govern the phraseology which is employed in the caption of the writ of attachment.

If any estoppel or apparent acquiescence is raised on the fact that a supplemental writ was filed, it is met and neutralized by the fact that the plaintiff went into court on a motion to dissolve, which made no mention of the error, from which alike estoppel and acquiescence can, with equal propriety, be inferred, thus leaving the matter at large.

For the purpose of the discussion the second writ may be left entirely out of view, as nothing is claimed on that score. It was an unauthorized proceeding exclusively upon the motion of the clerk, more for his own protection than otherwise, we infer. And the fact that same was not preceded, and is wholly unaccompanied by any supplementary proceedings of any kind serves to strengthen this inference.

Defendant’s counsel refer to the fact that the plaintiff appealed from both of the judgments, as. evidence that he had acquiesced in the first judgment. If this were correct reasoning, the plaintiff occupied the unfortunate situation of being bound whether he appealed or not.

It is our understanding that an appeal is anything other than abandonment or acquiescence.

Of course, if there had been two different and distinct judgments rendered upon the merits of the case, or two judgments rendered at different country terms of court, which had the effect of dismissing the suit, one order of appeal would not answer. Indeed the renewal of the suit, after it had once been dismissed as of non-suit, is a plain acquiescence in the dismissal of the first on exception.

This is the meaning of the ruling of the court in Priestly vs. Shaughnessy, 10 An. 455, cited by defendant’s counsel.

We are of the opinion that this comes within the principle announced in Driggs vs. Morgan, 10 R. 124, in which the court held that a citation issued from the District Court of the parish of Point Coupee requiring the defendant to file his answer in the office of “ the court of the parish,” was good and sufficient notwithstanding there was a parish as well as a district court in that parish at the time. Certainly the confection of a citation — the body of it — is of far more importance than the caption of a writ of attachment.

The Code of Practice points out and defines the essentials of citation, and amongst them it declares that it must mention * * * the name or the title of the court before which the defendant is cited to appear.” Art. 179.

But it makes no provision of any formula for the writ of attachment. It merely says that “ an attachment * * * is a mandate which a creditor obtains from a competent judge,” etc. Art. 239.

It has been held that a bond made payable to a person not the clerk of the court is good. Schlieder vs. Martinez, 38 An. 849; Scooler vs. Alstrom, 38 An. 907; Thorp vs. Waggner, 26 An. 318.

In the recent case of Dinkelspiel Sons vs. Woolen Mills, 46 An. 576, we reversed a judgment dissolving an attachment on the ground that the affidavit was defective, and in our opinion we said:

“ The word itself is not used, but that which constitutes knowledge is distinctly stated and embraced in the affidavit. The Code does not exact that identical words used in it shall be inserted in the affidavit. If the affiant uses language equivalent to that of the Code the law is satisfied.”

Considering the foregoing constructions which this court has placed upon the phraseology of citation, bond and affidavit for attachment, we feel instructed to give a like liberal interpretation to phraseology of the writ of attachment for a stronger reason.

Our conclusion is to reverse the judgment and reinstate the case.

It is therefore ordered and decreed that the interlocutory decree dissolving plaintiffs’ original writ of attachment be annulled and reversed ; and it is further ordered and decreed that the said writ of attachment be and the same is reinstated, and the proceedings are remanded to the lower court to be prosecuted according to law and the views herein expressed, the cost of appeal to be taxed against the defendant and appellee.


author: McEnery, J.

text:
    No. 11,721.
    D. L. Northrup vs. E. J. Sullivan et als.
    It is no ground for the dismissal of an appeal that the bond does not set out the residence of the surety. This is a matter for the consideration of the court granting the appeal. It is not necessary in an appeal bond to state that the surety will be responsiule in default of the principal. This legal obligation he incurs by signing the bond.
    Letters signed A. per B. are admissible in evidence to show what representations were made to a vendee by A. to induce him to purchase, when B. holds title to the land merely for the accommodation of A., or the party he represents as agent.
    The thing sold is regarded in its entirety in estimating its value in relation to the price. Therefore it is error to exclude evidence as to the diminution of the number of acres sold in a suit to set aside the sale for this account. In such a case the rules of settiug aside and annulling a sale on account of lesion do not apply.

      APPEAL from the Tenth Judicial District Court for the Parish of Rapides. Andrews, J.

      H. H. White for Plaintiff, Appellant.

      Andrew Thorpe and T. H. Thorpe for Defendant, Appellee.
    Argued and submitted March’ll, 1895.
    Decided March 25, 1895.
    Rehearing refused April 22, 1895.
   The opinion of the court was delivered by

McEnery, J.

The appellee has filed a motion to dismiss the appeal on the grounds:

1. That the appeal bond does not state that the surety thereon resided within the jurisdiction of the court which granted the appeal.

2. The condition in the bond is not such as the law reouires.

The matter of complaint on the first ground is for the consideration of the lower court. If the surety is not a resident within the jurisdiction of the court granting the appeal, the attention of the court should have been called to the fact.

As no objection was made to the qualification of the surety in the court below, we will presume that he was a good and sufficient surety, both as to solvency and residence.

On the second ground, the objection urged- is that the bond omits, after stating that the principal should respond to it, that the surety, on his default, shall be liable in his place.

This is the legal obligation the surety incurs in signing the bond, and we see no reason why it should be incorporated in the bond. It is true the Oode of Practice prescribes this as a part of the form of the bonds, but it is only the assertion of the legal obligation of the surety.

The bond, in all respects, substantially complies with the law.

The motion to dismiss is denied.

Merits.

The defendant sold to the plaintiff several tracts of land for the price of $11,800. This suit was brought to rescind the sale on account of fraud and misrepresentation as to the character and value of the land, and that there was a deficiency in acreage of 480 acres, and the defendant paid $11,800 for 1180 acres of land, and only received seven hundred and fifty acres. It is alleged that the lands to which he received no title are the most valuable and the others are overflowed lands, timberless and valueless.

A motion was made to strike out parts of the petition; a plea of estoppel and a plea of no cause of action were filed. These were referred to the merits. We will not pass upon these pleadings, as the view we take of the case will make any special attention to them unnecessary.

The answer denies the allegations of the plaintiff, specially with reference to fraud and misrepresentation, and that one Strous,' who negotiated the sale, was the agent of the defendant, but affirms he was in fact the agent of the plaintiff.

The answer further avers that the contract was one of exchange of movable for immovable property, and plaintiff can not demand a rescission of the sale on account of lesion; and also that plaintiff is estopped from alleging misrepresentation, as there was an exchange, and the deed from the defendant to plaintiff was only the consummation of the exchange agreed upon, and that the length of time between the two acts was sufficient for plaintiff to inform himself as to the character and value of the land given in exchange for the movable property.

There were several calls in warranty, which were dismissed.

The case was tried by jury, and there was a verdict for defendants, upon which judgment was rendered, from which plaintiff appealed.

In Mrs. Schmalinski’s answer to acall in warranty she asserted title to the property sold by defendant to plaintiff, in consequence of the decree of this court in the case of Ashley vs. Schmalinski, 46 An. 499.

A part of the lands in controversy in that case and in this, were the lands given to Strous for negotiating the fraudulent sale with Mrs. Ashley. While that case does not control this in all its phases it is so closely allied to it that some of the facts recited in the opinion may be referred to in the elucidation of this case.

In that case we ascertained that Strous and Loomer were confederates in the fraud practised upon Mrs. Aghley. The lands transferred to this plaintiff were those given to him for negotiating the sale with Mrs. Ashley, and were by him transferred to Loomer, who transferred them to the defendant, who sold them to, or, as defend - ant claims, exchanged them with the plaintiff. The transfers from Strous to Loomer, and from him to Sullivan, were in quick succession. Sullivan, in his testimony, says he was only nominally the vendee of Loomer, and that he took title to the property only for his convenience. But he vigorously defends the suit as a real party in interest.

The evidence satisfies us that Strous was the' agent of Loomer, or of Sullivan, or more likely he was the principal in negotiating the sale with the plaintiff. He was plaintiff’s agent only in accepting title.

Letters written to the plaintiff and signed “ Strous per Sullivan” were offered for the purpose of showing the false assertions made to plaintiff in relation to the lands. They were objected to on the ground that Sullivan’s connection with them had not been shown. The objection was sustained and the letters were rejected.

The letters ought to have gone to the jury. Sullivan, if his statement is true, had no interest in excluding them from the case.

Strous, according to the record, represented somebody. It only could have been Loomer or Sullivan. If Sullivan held the lands only for Loomer’s convenience, Strous represented Loomer, and as Loomer’s agent, the letters were admissible, as to what representations he made in reference to the sale that he was authorized to make. Neither Sullivan nor Loomer deny the agency of Strous in negotiating the sale, except the averment that he was the agent of plaintiff, which was not the fact. The close relationship of the parties in this transaction, and the attendant circumstances relating to the sale of the lands, are so suspicious that we are inclined to believe that the act of one was the act of all, and at least, between Loomer and Strous, the sale was a joint venture.

On the theory of plaintiff that the transaction was an exchange, no evidence as to the diminution of acreage was permitted to go to the jury. This was error. Lesion has reference to the relative value of the thing sold to the price given. The thing sold is regarded as an entirety in estimating its value. In this ease there is no place for the application of the article of the Code for avoiding a sale-on account of a lesion.

The plaintiff, as one of the grounds for rescinding the sale, alleges that he did not get what he bought, the vendee having no title to the thing sold. Arts. 2662, 2667, C. C.

It is immaterial, however, whether there was a sale of the land or an exchange. The law applicable to the issues presented is the same under either contract.

We will remand the case.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and it is now ordered that this case be remanded to be proceeded with in due course of law, and with reference to the views herein expressed; all costs to abide the final determination of the cause.


text:
    No. 11,712.
    Reinhardt Martin vs. Mrs. Michael Delaney.
    The intrinsic value of the land at the time of sale, and the nature of the title, should be examined and inquired into, as matters put expressly at issue in an action for rescission on account of lesion. 16 La. 380.
    In a sale of a precarious title to land, without warranty, it is a proper subject on inquiry what were the vendor’s pretensions worth, rather than what was the intrinsic value of the land. In a sale of land acquired at tax title and again sold by the purchaser, the vendee assuming all taxes due, and some of which were not paid by the vendor, if the amount of the taxes assumed, added to the price, exceed the limit that would justify the action for leáion, the plaintiff can not recover. The value of the land must be fixed at the time of the sale, and within fixed limits. If the witnesses state the land was worth from one thousand to twelve hundred or fifteen hundred dollars, the fixed amount of one thousand dollars will be taken as its true value. The amounts above this are conjectural and speculative.
    PPEA.L from the Civil District Court for the Parish of Orleans. Rightor, J.
    J. Zaeh. Spearing and Gurley & Mellen for Plaintiff, Appellant.

      Andrew H. Wilson for Defendant, Appellee.

      Submitted on briefs March 30, 1895.
    Decided April 8, 1895.
   The'opinion of the court was delivered by

McEnery, J.

This suit was instituted to rescind, on account of lesion beyond moiety, the sale of a square of ground, in the Sixth District of New Orleans, by plaintiff to defendant.

The plaintiff purchased the property at tax sale, in 1885, for twenty dollars. In the act of sale there was the usual assumption by the purchaser to pay State and municipal taxes, with interest, on the property for the year 1880 and subsequent years.

In 1890 the plaintiff sold to the defendant the property for the price of one hundred and fifty dollars.

The defendant assumed the payment of all State and city taxes due on said property, although it was declared in the deed by both vendor and vendee that there were no taxes against the property. There were, however, taxes against it. The plaintiff never paid any taxes on it after his purchase. The property was worth between one thousand and twelve or fifteen hundred dollars at the time of the sale to defendant, according to the opinion of the witnesses. The evidence does not satisfy us that there was any fraud or misrepresentation practised by defendant on plaintiff to. induce the sale at the price of one hundred and fifty dollars. The plaintiff evidently had experience in purchasing at tax sales, and knew the uncertainty of titles under such sales.

We are induced to believe that he speculated in such titles. Independent, however, of this opinion, it is manifest from the evidence that the plaintiff sold the property more with reference to his title to it than to its intrinsic value. This is made more apparent by the fact that the plaintiff did not pay the taxes for 1880. That his title was subject to legal inquiry and investigation is shown by a suit against the defendant after his purchase of the property. To perfect his title he had to purchase a quit-claim deed from the plaintiff in the suit against him. The taxes and interest and cost assumed by defendant in the deed to him amounted to some six hundred dollars, which, with the price added, would make the actual amount paid for the property more than half the value of one thousand dollars placed upon it by the lowest estimate. We accept this lowest estimate because all above that is conjectural. Its value must be shown within a certain range. Parker vs. Talbot, 37 An. 22.

The facts here bring the case within the doctrine annouuced in Copley vs. Flint, 16 La. 380, and Copley vs. Flint, 1 Rob. 125, in both of which it was said the intrinsic value of the land at the time •of the sale, and the plaintiff’s pretensions and the nature of his title, should be examined in and inquired into as matters put expressly at issue in an action for rescission of a sale on account of lesion. But in a sale of a precarious claim to land without warranty it is a proper subject of inquiry what were the vendor’s pretensions worth, rather ■than what was the intrinsic value of the land in an action of lesion.

And in the case of Copley vs. Flint, 1 Rob. 125, it was shown that the plaintiff had purchased under circumstances that clouded his title, and that he afterward sold it at a profit of one thousand dollars. In such a case the court said the law affords no relief on the score of lesion, as no presumption could arise that the vendee had been forced into a bad bargain by necessitous conditions. “ If we were to tolerate this,” the court said, “ we should sanction a resort to an action of rescission, intended for the protection of weakness or improvidence, when presumed to have been overreached in a hard bargain, in a case in which it is evident the plaintiff’s sole object is a further gain and speculation.”

This property has considerably advanced in value since its sale to defendant, and we think the plaintiff’s sole purpose is for further gain and speculation. Whether we regard the facts as showing that the plaintiff sold only with a speculative intent with reference to the tax title he held, or that he sold to defendant to get rid of the burden of paying the taxes, which he assumed, in either case his demand is without merit.

Judgment affirmed.


author: Breaux, J.

text:
    No. 11,748.
    James M. Bollinger and Wife vs. Texas & Pacific Railway Company.
    Railway companies owe 210 duties to a person on a private switch, who crosses from one platform to another on a car that is coupled to a locomotive about to start, or actually moving. If he remains on the freight train, without the knowledge of the employes of the defendant, and is injured by an accident caused by a defective track, the railway company is not liable for damages.

      The risk of passing through the cars, likely to get on the way at any moment, or in the act of moving, was apparent, and should not have been taken.
    It not appearing that the switch, on the day of the accident, was impassably blocked by standing cars, the railway company is not liable.
    If it was usual to pass from one platform to another through the standing cars (without any objection on the part of the. defendant’s employes), it does not follow that one hasremedy for injuries suffered by the starting of the train after warning by the bell of the locomotive. The imprudence of the lad is the proximate cause of the fatal injury, and not the defective track, which is remote.
    A PPEAL from the Fourteenth Judicial District Court, Parish of Iberville. Talbot, J.

      Samuel Matthews and Gus A. Breaux for Plaintiffs, Appellants.

      Howe & Prentiss and L. DePoorter for Defendants and Appellees.
    Argued and submitted March 28, 1895.
    Decided April 8, 1895.
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs, appellants, claim ten thousand dollars damages from the defendant, sustained in consequence of the death of their son, caused by the violent closing of a sliding door of one of the freight cars of the defendant company.

The lad, aged about eleven year3, was leaning against the door casing of the car; when it reached a sunken part of the switch the car lurched to the lower side of the track, collided with a platform erected near the spur track or switch, and in the sudden and violent shutting of the door the boy’s head was caught between it and the post of the door. He died about twenty-four hours after the accident.

The spur track in question is not for public traffic. It was constructed for the Whitecastle Lumber and Shingle Company, at the town of Whitecastle, and is operated by the agents and other employés of the defendant company in hauling the mill’s products of the lumber company to the main trunk of the defendant road.

The spur track measures about one thousand feet in length, and begins at the east line of the main trunk, and runs in a westerly direction through the mill yard of the lumber company to a point across a street known as Cypress.

Platforms at places are erected about the level of the floors of the cars, on either side of the spur, and a space of about one foot was left on each side, between the platform and the car.

Frequently during the day the railway company hauls loaded cars from the spur to be coupled with the passing freight trains. Cars are also left on this track to be loaded by the laborers in the service of the Whitecastle Lumber and Shingle Company. There are quite a number of laborers and other employés of this company who dwell in houses near this track. It is stated that when there are a number of freight cars standing on the spur the employés quite often pass through the cars from one side of the track to the other, as it is quite convenient. The water supply of the company was on the south side of the track. The dwelling house of the plaintiff on the north.

On the 14th of August, 1893, the plaintiff sent his son, a bright lad, for water to the artesian well, on the south side of the track.

There were two ways — one, the convenient, through the cars, or the other around the cars. Boylike naturally he chose the former. As he entered the ear a locomotive began to pull the ears toward the main track.

A witness, the only witness who was present when the accident occurred, stepped on the car from the platform. The boy was at the time in the car leaning against the door casing. He did not see the boy get in; nor did any one else. The car in which they were was partly loaded with laths. It was a stock car, not a close box car. Having just commenced to pull out, the movement of the cars was not rapid when this witness stepped on to the train. It was a moment after the witness stepped in that the car touched the platform, where there was a defect in the track, and pressed against the sliding door and closed it violently against the head of the boy. The oscillation converted the sliding door and its post into an improvised trap, which would seize and did seize the lad’s head. The employés of the defendant, who were operating the locomotive and the ears, testify that the usual warning was given to give notice that they were coupling the cars and about to move. That at the time of leaving for the main track they did not see any one on the stock car in question.

The foregoing are the facts disclosed by the evidence.

The chief contention in behalf of plaintiff is that it was common for the employés and members of their families to cross the spur track through the cars when they are open.

Conceding that it was usual, it none the less devolved upon those crossing to exercise due care and prudence.

It was, at most, customary to cross. This did not involve a ride of some distance on the moving train.

It is not our impression that he could not have stepped across immediately after he had stepped into the car. He must have known that the engine was coupled to the car, and that unless he hastened to pass, he would be carried away with the moving train. He did not, after the car was hauled away, become a passenger, entitled to the protection due a passenger, or to one who is invited on the train, and therefore whatever negligence on the part of the defendant there may have been in not repairing the track was not legal cause for complaint on the part of any one who thus continued on the train. He did not come within the measure of the duty of the carrier to his passenger, or of the employer to his employé.

The risk of passing through the cars likely to get on the way at any moment, or in the act of moving, was apparent, and should not have been taken.

We have thus far assumed that he was not negligent in attempting to cross as he did, but it is not in proof that the spur track was filled with cars at the time and that it was not possible to pass at some other point without the greatest inconvenience.

There were four or five cars, as we understand from the evidence, standing on this track. There was, we judge, very little difference in the distance to the well to which it was his intention to go for water.

The injury might have been avoided by walking a few yards further. In view of the fact that cars were being moved it was imprudent to attempt to pass through the open doors of one of the number.

Where a boy climbed in play into an open freight car, standing and was injured by the falling upon him of the door of the car which was insecurely hung, the court considered that “the fact that the defendant knew that the car was left upon the track where it would be an enticing, attractive and inviting object to children, and that the children were and had been accustomed in and about such cars, upon the defendant’s side track, was not an invitation or induce-menfc held out by the plaintiff to the defendant, and that the defendant owed no duty to the plaintiff, he being a trespasser.” Law of Personal Injuries, Boswell, p. 104, par 78; see also Beach on Contributory Negligence, p. 274, par. 212, 2d Ed.

“But that there has grown up a habit on the part of individuals, or of the public generally, to travel over the track on foot, and that no measures have been taken to prevent it, does not change the relafch e rights and obligations of the public and the company. It is not the less a trespass in that it is repeated or that there are many trespassers.” Beach, Contributory Negligence, Sec. 212.

In the light of doctrine and authorities we are of opinion that plaintiffs can not recover damages for the loss and severe affliction sustained.

Our brother of the District Court excluded the testimony offered to prove the habit alleged of passing through the car. We have none the less given due weight to the facts alleged upon that point.

It is therefore ordered, adjudged and decreed that the verdict of the jury and the judgment of the court based thereon are affirmed at appellant’s costs.


author: Miller, J. Watkins, J.

text:
    No. 11,652.
    Leon Lavedan vs. Miss Ida Jenkins.
    Donations between the spouses are revocable; the revocation may be tacit; is accomplished by the mortgage, donation, sale and other act o£ the donor evincing the intention to revoke, and the revocation and subsequent disposition of the property may he by the same act. Civil Code, Art. 1749; Napoleon Code, Art 1096; Laurent XV, par. 381, 332; 4 Boilleux, 280.
    The sale by the wife of the property donated by the husband, made with his authorization through an agent with power to consent to and authorize the sale; the power describing the property as standing in his wife’s name, is in legal effect the same as if made by the 1ms band, he havingthepower to revoke the donation and sell; and treating the property in the act as that of the wife, is a mere formnot detracting from the effect of the act as a sale by the husband, being both a revocation and a sale by him.
    Nor could the husband, consenting to the sale and thus inviting the payment of th s price, afterward claim the property on the ground the donation was not canceled by the sale, was still subject to revocation reinstating the ownership of the husband; such pretension by him would be deemed an attempted fraud on the purchaser, and the sale would be maintained as conveying fall title to the purchaser. Bigelow on Estoppel, 641.

      While the heirs may sue to reduce donations by the father in excess of the disposable portion, they can not attack a bona fide sale made by him; and that sale canceling any previous donation, there is no basis for the action to reduce. Civil Code, Art. 1502; 6 Martin, 529; Radial vs. Radial, 44 An. 501.
    .When the donation is revoked, the ownership of the donor is reinstated, the same as if there had been no donation. Civil Code, Art. 1749; Scudder vs. Howe, 44 An. 1204; Abes vs. Davis, 46 An. 819.

      Benjamin Ory for Plaintiff, Appellee:
    All donations made between married persons, during the marriage, though termed inter vivos, shall always be revocable. Civil Code, 1749.
    The sale of property by the husband revokes the donation thereof made by him to his wife, during marriage, by donation inter vivos. Pothier on Donations, Testamentary Chapter 6, p. 310; Grenier, Vol. 3, No. 345; Demolombe, Vol. 23, No. 480; Aubry and Rau, Vol. 8, p. 114, par. 744; Laurent, Vol. 15, No. 332; Troplong, Donations et Testaments, Vol. 4, p. 855, No. 2667.
    A conveyance of the right, title and interest of the vendor in the thing is a conveyance of the thing itself. Durell vs. N. O., 13 An. 335; Davis vs. Carroll, 11 An. 705.
    It can be revoked even after the death of the donee. Journal du Palais, 1842, Vol. 1, p. 637.
    The revocation of a donation results by implication from the act by which the donor ratifies and confirms the sale which a third person has made of the property donated. Boschat vs. Gaascht, Journal du Palais of 1812, p. 119.
    Plaintiff, revoking the donation which he made to his wife of a certain piece of property, seeks to recover possession of said property from defendant, whose title is derived from plaintiff’s wife under the donation aforesaid.
    It appears that Mrs. Wade desired to donate the property in question, thus donated by her, to her daughter, Mrs. Eames, “as an extra portion over and above her legitimate share in the succession of the donor,” estimating it at |7000, and to secure the title it was specially stipulated in the act “thatsaid donor binds herself and her heirs to warrant and forever defend the said property against all lawful claims and demands whatsoever.” To this act the plaintiff was a party, approving of it and authorizing his wife. He is therefore estopped from disputing the title of defendant.

      Besides the prescription of ten years invoked by defendant is a complete bar to the action. Wade vs. Eames, 26 An. 449.
    If a man knowingly, though passively, by looking on, suffer another to purchase land for valuable consideration, under an erroneous impression of title, without making known his claim, he will not be permitted thereafter co exercise his legal right against such person. Bigelow on Estoppel, 586; 96 U. S. 720.
    When the owner of an immovable is present at a public sale of the same and tacitly assents to its being sold as the property of another, he is thereby estopped from subsequently disputing the title and possession of the bona fide purchaser. Lippmins vs. McCranie, 30 An. 1251; Alexander vs. Bourdier, 43 An. 321; Marsh vs. Smith, 5 R. 518; Moss vs. McCall, 13 An. 217.
    The heir is bound by his ancestor’s warranty and estoppel. Smith vs. Elliott, 9 R. 3; Blanchard vs. Allain, 5 An. 368; Armorer vs. Case, 9 An. 242; Stokes vs. Shackelford, 12 La. 170; Jenkins vs. Collard, 145 U. S. 546.

      Hugh C. Cage for Defendant, Appellant:
    Donations between married persons, during marriage, always revocable. C. C. 1749; C. C. 1516; C. N. 1096.
    Any disposal of property, whether inter vivos or mortis causa, exceeding the quantum of which a person may legally dispose to the-prejudice of the forced heirs, is not null, but only reducible to that quantum. C. C. 1502.
    Where a husband makes a transfer to his wife without any valid consideration, and such transfer exceeds the disposable portion of his estate, his forced heirs, after his death, may by suit demand that the transfer be annulled in excess of the disposable portion, even though the property has passed into the hands of third persons, and it can be brought back into the succession of the transferror or donor, free from all charges created by the transferee or donee. 38 An. 813; 41 An. 474; 44 An. 1109.
    A person who has agreed to purchase from a third possessor property which has been thus donated, while the donee is yet living and having legitimate descendants and presumptive forced heirs, would be liable to eviction by the latter at the death of the donor under the conditions stated and can not be compelled to accept so perilous a title. 41 An. 474.

      Where the donee has afterward sold the property donated, to a third person, and the donor has intervened in the act of sale ratifying it, and expressly promising for himself and his heirs to warrant the purchaser against eviction, such purchaser could not oppose even this express warranty to the forced heirs in their suit for reduction. Cass. Journal du Palais 1868, p. 934.
    One can not renounce the succession of an estate not yet devolved, nor can any stipulation be made with regard to such a succession, even with the consent of him whose succession is in question. C. C. 1887; C. N. 1130; 3 R. 99; 12 An. 436.
    The approval or confirmation during the life of the donor,, by his children, of the acts which work prejudice to them, is no estop-pel to a suit in reduction brought by them after the death of the father. Toullier, Vol. 5, No. 163; Troplong, Vol. 2, No. 938; Demalombe, T. 19, No. 229; Laurent, T. 12, No. 163; Aubry and Rau, Vol. 7, No. 229, Sec. 586.
    There was no attempt made to revoke the donation; it remained one of the deeds in the line of titles, not revoked, but confirmed by subsequent proceedings. 44 An. 1109.
    In the deed of May 19, 1893, Edward Owen did not revoke the donation to his wife. • On the contrary, he ratified and confirmed it.
    The law which makes donations between spouses during marriage always and essentially revocable is a law made for the preservation of public order and good morals, and is in the interest of public policy. Mourlon, Rep. Ecrites, Vol. 2, p. 519, Sec. 1001.
    Individuals can not by their conventions derogate from the force of laws made for the preservation of public order or good morals. C. C., Art. 11.
    Therefore, if Edward Owen intended by the deed of May 19, 1893, to derogate from or renounce his right to revoke his donation to' his wife, his act was null and void, and the right still exists in him in full force and effect.
    If, thereby, he intended to transfer this right to plaintiff, his act was null and void, for the right is inalienable and personal to-him, and can not be transferred by him and can not be exercised by his creditors or any third person. Mourlon, Rep. Ecrites, Vol. 2, p. 321, Sec. 1005.

      Argued and submitted March 26, 1895.
    Decided April 8, 1895.
   The opinion of the court was delivered by

Miller, J.

This suit is brought by plaintiff to compel compliance with an agreement of defendant to purchase property. The defence is plaintiff has no title to the property he tenders defendant. From- a judgment against defendant she appeals. In 1867 Edward Owen made a donation inter vivos of this property to his wife. With the authorization of her husband, the donor, the wife sold it. From her vendee by successive conveyances the property was acquired by plaintiff, and by him agreed to be sold to defendant binding herself for the payment of the price. The objection to the title urged by defendant is, that the donation subject to revocation by the terms of the Oode is still liable to be revoked by Owen, the donor, yet living, or subjected to reduction if in excess of the disposable portion by his heirs. The defence supposes the concurrence of Owen, the donor, in the sale made by his wife, and his joining in that sale is no impediment to a recovery by him or his heirs hereafter from those who bought the property and paid the price on the faith of that sale.

Under our law donations between the spouses are revocable, and if not revoked, are subject to reduction, if at the donor’s death they are found to be in excess of the disposable portion. Hence, if the title to the property involved in this controversy depended simply and only on the donation by Owen to his wife, the defendant would have the basis to refuse payment of the price stipulated for a good title; Civil Code, Arts. 1749, 1750, 1502. But if this donation has been revoked and defendant’s title is based on a sale in legal effect by the donor, the objection fails. Under the Code there is no form prescribed for the revocation of a donation. The jurisprudence under the Napoleon Code, containing the same article on the subject of the revocability of donations is: that the revocation may be deduced from the act of the donor manifesting the intention. The revocation may be tacit: “ Quand a la revocation tacite elle est susceptible de se manif ester par toute act manifestant Vintention du testa-teur de revenir sur ce qui avant faite en faveur de son conjoint.” Napoleon Code, Art. 1096; Laurent 15, par. 331, 332; 4 Boilleux, p. 280; Code Civil Annoté, Fuzier Herman 2, p. 940, Nos. 35, 39. Thus a subsequent donation, mortgage, sale or other act of the donor inconsistent with the donation, annuls it. The revocation and subsequent disposition by the donor may be by the same act. If the donor sells, the sale itself is a revocation of the thing previously donated. Our Code has l’ecognized the tacit revocation presented by the commentators on the Napoleon Code. Succession of Hale, 26 An. 260.

It is claimed here that no revocation of the donation of Owen to his wife can be deduced from his joining her in the act of sale to the author of defendant’s title. It is urged that sale was of her property, hence conveyed only the property subject to his right of revocation, and the action of reduction of the forced heirs. As to him it will hardly be contended he could join his wife in selling and obtaining the money of a purchaser and then wrest from him the property on the ground the wife had no title to convey, or rather a title the husband could destroy at his pleasure. The sale by the wife was under the authority of the husband to his agent, “ to consent to and authorize in the' husband’s name his wife to sell the property recorded in her name.” The agent intervenes in the act, the sale is made, and the purchaser pays the price with the confidence he gets a perfect title. The acts and conduct of a man on which another has acted in acquiring or parting with property are to be interpreted, and bind according to their natural import. It is obvious the purchaser in this case paid his money on the implicit faith he was getting a full title for all time to the property; that was the faith authorized and invited by the husband and by that he is bound. We can conceive of no clearer case of an estoppel than that which is opposed to any claim of the husband to this property.

If the husband, with full power to revoke the donation and sell the property free from any claim of the heirs, has concurred in a sale which he is estopped from disputing, will not that sale be held equally conclusive on his heirs? Will they be admitted to urge that the sale was only of the wife’s interest, that is, passed a title the husband could destroy at the moment after the purchaser paid his money, or at any time; and, of course, a title which no sane man would buy for a full price, or indeed at any price. If Owen, the father, could not in this case with one hand authorize the sale and thus invite the purchaser to pay his money and with the other possess himself of the property, on the ground that the sale passed to the purchaser but the shadow of a title, it is not easy to see that the heir could set up a pretension that would be viewed as an attempted fraud on the purchaser if advanced by the father. Aside from this aspect of the case, it must be borne in mind that Owen had the right to sell free from any claim of the heirs. At any moment he could revoke the donation, and a sale by him was a revocation. It was not necessary to introduce his wife in the act of sale. Hers was but a nominal ownership; that is, susceptible of termination at the husband’s pleasure. In his power to the agent to concur in and consent to the sale the property is described as that standing in his wife’s name. The language is that appropriate to a mere paper title. In this view we have the case of a man with power to sell free from any claim of the wife or her heirs, authorizing that sale by his wife, and by his agent concurring in that sale. It certainly seems difficult to distinguish between a sale made by Owen himself and that to which he consents, made by his wife, of property which he had the right to sell and his wife could not sell without his participation. Ordinarily, any assent by the owner to the sale by another of his property, as, for instance, if the owner signs the act as a witness, protects the purchaser against any claim by the owner. In this view the authorization by Owen to that sale is the same as if he sold himself, and his sale, it must be conceded, would be a complete effacement of the previous donation to his wife, and of all claims she or her heirs could rest on it. It is urged we can not hold this sale to be made by Owen, because made in the wife’s name by his authority. That is the form of the act. That form is consistent with the purpose of Owen to sell and of the purchaser to buy the property as that of Owen. He had the right to sell. But as his wife stood on the records as owner, it was deemed proper to have her sell with his consent. It is as certain as any conclusion can be predicted on human conduct that Owen designed to sell and the purchaser designed to buy the property in the usual sense; that is, not property that Owen could take back in the same breath that he consented to the sale. We think the act carried out that intent, and to hold otherwise would be to make mere form subserve a purpose never intended, and the opposite to the actual intentions of the parties. We view the act as in legal effect a sale by Owen, and upheld besides as such by an estoppel which binds him and his heirs. In our conclusion we threw out of view the paper executed by Owen and his child affirming the sale. It denotes his appreciation of the force which, in our view, attaches, to the sale itself.

The heirs are creditors of the ancestors in a certain sense for their legitime. Civil Code, Art. 1502; Croizet’s Heirs vs. Gaudet, 6 Martin, 529; Rachal vs. Rachal, 4 An. 501. As such they can attack any donation of their father in excess of their disposable portion. They can not contest sales made by their ancestor. Owen had a perfect right to sell without invading their rights. To suppose they can question the sale of the property, made in this case with the authority of the father, is, in our view, to disregard the purpose and effect of the act, and any such pretensions on their part could succeed on the theory only that their father had perpetrated a fraud and they can profit by it.

It has been the subject of some discussion whether, when the donation is subjected to the legal or conventional return, the property became that of the donor, freed from the action of the heirs to reduce donations. Our courts have held the return effaced the donation, and hence the heirs would have no action to reduce in respect to the property. Civil Code, Art. 1559, par. 4; Scudder vs. Howe, 44 An. 1103. There can be no question the revocation of the donation by one to. the other spouse brought the property back to the donor the same as he had made no donation. In this case the revocation and sale by the donor was by the same act. Civil Code, 1749; Abes vs. Davis, 46 An. 819.

it is therefore ordered, adjudged and decreed that the judgment, of the lower court be affirmed, with costs.

Dissenting Opinion.

Watkins, J.

Edward Owen conveyed the property in controversy to his wife, Hattie Bryan Owen, by a donation inter vivos in due form, on the 3d of December, 1876, and she conveyed same to W. M. Owen, by an authentic title in due form, on the 7th of July, 1870. At a.public sale made in the bankruptcy proceedings of W. M. Owen this property was adjudicated to C. E. Alter, and this adjudication was evidenced by an authentic act, bearing date 7th of June, 1873, and. he conveyed same to the present plaintiff on May 5, 1893.

On the 11th of August, 1894, plaintiff entered into an agreement with the defendant to sell her the property at the price of three thousand three hundred and fifty dollars, and the latter having declined to accept the title tendered her, this suit was brought to compel a specific performance.

The decision of the question as to the validity turns upon the title Mrs. Hattie Bryan Owen made to W. M. Owen in 1870 — the defendant’s contention being that as it depended upon the donation previously made to her by her husband it was necessarily subject to the claim of the forced heirs of thé donor, Edward Owen.

In my opinion the defendant’s contention is correct and her objection well grounded in law, and that it is supported by the following authorities: R. C. C. 1502, 1504, 1505, 1510; Fossier vs. Herries, 1 La. 506; Carroll vs. Cockerham, 38 An. 813; Succession of Moore, 40 An. 531; Tessier vs. Roussel, 41 An. 474.

All donations inter vivos between married persons are revocable during the marriage. R. C. C. 1749.

The contention on the part of the plaintiff is that the act of the husband in appearing and joining his wife in the conveyance, though that act was only for the purpose of authorizing her to make the contract, operated as a revocation of his prior donation to his wife, and impressed upon the act of sale to W. M. Owen the character of a conveyance from the husband, Edward Owen, and divested it of its character as the sale of separate property of the wife. And, founded on this theory, the argument is that the property passed by the act was thereby disembarrassed by the future claim of the husband’s forced heirs for their legitime.

In my view the law is just the other way.

If this contention be a proper interpretation to be placed upon the act of the husband, in simply authorizing his wife to sign an act of sale of her separate property, what is to be the fate of a married woman’s separate and paraphernal estate?

Being under coverture she can not alienate same without the authorization of her husband or the judge; and if the husband joins in the act to authorize her to sell, it is divested of its separate and paraphernal character; and if the husband’s consent is not first sought and refused, the judge is not empowered to act.

For the Code declares that “the wife, even when separate in estate from her husband, can not alienate, grant, mortgage, or acquire, either by gratuitous or encumbered title, unless her husband concurs in the act, or yield his consent in writing.'” R. C. C. 122.

And it further provides that “ if the husband refuses to empower his wife to contract, the judge may authorize her to make such contract,” etc. R. C. C. 125.

In my view, it can be affirmed with as much reason that the effect of a husband’s authorization would be just the same in case of a sale by the wife of any separate property of hers, as in the instant case.

And the Oode declares in terms that “separate property is that which either party * * * acquires during the marriage by inheritance or by donation made to him or her particularly.” R. C. C. 2334.

Against such a title the law does not even raise a presumption of it being community; for that presumption is alone raised against the estates which either of the spouses acquire during the marriage “by donation made jointly to them both during the marriage,” etc. R. C. C. 2402.

To my mind the proposition that the title Mrs. Owens, the wife, conveyed was that of her separate estate is too obvious for serious discussion.

I can well understand that if she had made an actual restoration of the property to her husband, and he had sold or hypothecated it; or had she permitted him to openly, publicly and notoriously use and treat it as his own, with her knowledge or concurrence, the donation would have been of no avail.

This is the purport of the decision in the succession of Hale, 26 An. 195.

In this case there is no act of the wife pointed out as indicative of her intention to make a restoration of the property to her husband; on the contrary, that it was her clearly expressed intention to sell the property to W. M. Owen for a stipulated price, which was paid to her.

In that act, the husband concurred, and it is to that act which he gave his sanction.

In my opinion the property was sold and the tiUe accepted as the separate property of the wife; and in the hands of the plaintiff it is subject to the legitime of the forced heirs of the donor.

Eor these reasons I dissent.

The Ohief Justice concurs in this opinion.


author: Miller, J.

text:
    No. 11,749.
    Allen M. Brashear vs. The Houston Central, Arkansas and Northern Railroad Company.
    This case is distinguished from those in which it is held that the passenger on a railroad, carried beyond’his station, can not recover damages caused by jumping from a moving train. 9 An. 441; 41 An. 796; 37 An. 708; 45 An. 1201.
    The passenger on a railroad train, with a ticket for a station at which it is customary for the train not to stop, but to slow its mo vement, so as to allow passengers to alight, will be entitled to damages if, called to the platform by the announcement of the station, he is thrown from the steps of the car and injured, his fall being caused by the sudden increase of the speed of the train, when it should have been slowed or stopped. Wharton on Negligence, Secs. 371, 375, 377.
    Nor will it make any difference in the liability of the railroad company, that the passenger is thus thrown from the car on the side opposite to his station; the train having passed the station without affording him an opportunity to alight, and he having crossed to the other side, under the reasonable expectation the train would be slowed at his destination a few feet beyond the station.
    APPEAL from the Fourth Judicial District Court, for the Parish of Grant. Wear, J.

      H. II. White for Plaintiff, Appellee.
    ON THE LIABILITY OF DEFENDANT.
    C. C., Art. 2315 et seq.; 45 An. 1201; 41 An. 795; Abbott’s Law of Corporations, Vol. 2, p. 598; 37 An. 705; Sedgwick on Damages, Vol. 2, p. 359; Am. and Eng. Ency. of Law, Vol. 4, Tit. Contributory Neg., p. 15 et seq.; 38 An. 111-185; 40 An. 661.
    “ If a passenger directs his course, whether entering or leaving a train, by the direction, or express or implied invitation of the corporation * * * he is injured, the corporation will be responsible for such injury.” Buswell on Personal Injuries, Secs. 124, 136, 137.
    “ It is apprehended that in the United States the stopping of a train and the announcement of a trainman of the name of a station will be taken to be an invitation to the passenger to alight.” 31 Indiana, 408.
    WEIGHT ATTACHED TO THE VERDICT OF A JURY.
    20 An. 455, 458; 22 An. 31; 6 La. 31, 492; 31 An. 430; 45 An. 381.

      CONTRIBUTORY NEGLIGENCE.
    23 An. 462; 38 An. 116; 44 An. 806; 40 An. 420; 82 U. S. 401; 95 U. S. 161; 100 U. S. 213; 59 Penn. St. 374; 15 Atl. Rep. 624; 34 Cal. 153; 134 Ill. 57; 28 Mo. 657; 89 Mo. 650.
    QUANTUM OF DAMAGES.
    37 An. 705; 38 An. 111; 40 An. 661; C. C. 1928; 17 An. 19.

      Frederick O. Hudson for Defendant, Appellant:
    A railroad company is not liable to a passenger for an accident which he might have prevented by ordinary attention to his safety. Even though the agents in charge of the train are also remiss in their duty. 34 An. 1087, 1088.
    Although the defendant’s negligence may have been the primary cause of the injury, yet an action for such injury can not be maintained, if the proximate and immediate cause can be traced to the want of ordinary care and caution of the person injured. 144 U. S. 429; 139 U. S. 551, 558, and cases cited. Thompson on Negligence, 115, 117; Cooley on Torts (1st Ed.) 675; 4th Am. and Eng. Eric, of Law, Tit. lt Contributory Negligence,” 30, and authorities cited in Note 1; Patterson’s Railway Accident Law, pp. 51, 55 and 61.
    While it is the duty of a railroad company to stop its train at the station to which it has contracted to carry a passenger, and to • land him safely and conveniently, yet the fact that the company neglects this duty, and the train passes the station without stopping, does not justify a passenger in jumping from the moving train, unless expressly or impliedly invited to do so by the employés of the company. Voluntarily jumping from a moving train, uninfluenced by any invitation expressed or intended by the employés of the company, was imprudent and dangerous.
    In such a case no action for resultant injury can be sustained on account of the contributory negligence of the person injured. 41 An. 796, and authorities there cited.
    Persons injured while attempting to board a moving train, if injured in so doing, can not recover damages from the railroad company therefor, on account of their own contributory negligence, even though it be shown that employés of the company were in fault.. 9 An. 441; 26 An. 462.

      In order to enable tbe plaintiff to recover, it must appear that there was no want of care, and no imprudence on the part of the plaintiff, by which the injury was in any manner directly brought about. Hill vs. R. R. Co., 11 An. 292.
    To recover, plaintiff must show affirmatively that he was guilty of no negligence which resulted in the injury complained of. He alleges in his petition that he was in no manner guilty of negli-' gence — the onus is upon him to establish such fact affirmatively. 11 An. 292; Cooley on Torts, 659, 661; Pierce on Railroads, 320; Whar. on Neg., See. 427; 4 Am. and Eng. Ency. Law, p. 92; 23 An. 264; 40 An. 787; 44 An. 692, 806; see also Woods’ Railway Law, p. 1262.
    Submitted on briefs March 28, 1895.
    Decided April 8, 1895.
   The opinion of the court was delivered by

Miller, J.

The plaintiff, a passenger on defendants’ train, alleges he was thrown with violence to the ground by the movement of the cars while he was endeavoring to alight at his place of destination. The defence is the general issue and contributory negligence. The judgment of the lower court, based on the verdict of a jury, was against the defendant for three thousand dollars, and defendant appeals.

The plaintiff’s ticket on the train was for a flag station, at which the trains made no stop unless flagged or to put out passengers, and the testimony is that, for the last purpose, it was customary to slow the train instead of coming to a full stop. It is in proof that as the train approached the station was called by the train officials, and accordingly plaintiff went to the platform to And that the train had passed his station. He supposed the purpose was to put him off at the mill where he was working, a short distance from the station, and with that idea he stood on the steps of the car, but instead of slowing, the train, as the petition alleges, “gave a sudden jerk,” which threw him to the ground. If not this jerk, it is in proof, the speed of the train was increased, so that there was no slowing either at the plaintiff’s station or after it was passed to enable plaintiff to alight. The plaintiff’s testimony is he was thrown from the train, nor is there any testimony that he made the attempt to alight from the moving train. We note the reference in the brief of the defendant to the petition, and the inference from the petition, it is claimed, is that plaintiff’s fall was due to his stepping or jumping from the train. The allegations were: The custom of the trains to slow and not to stop at the station; that plaintiff was familiar -with the cust. m and had on several occasions got off while the train was in motion; that as the station was neared the usual stopping signals were given, that plaintiff went to the platform, and when about to step off there was the jerk and increased speed,-throwing him to the ground. We do not think there is any sensible variance between the petition and the plaintiff’s testimony that he was thrown from the train, and, as stated, he is not contradicted on that point.

In our appreciation of the testimony, the defence that the passenger, carried beyond his station, can not recover for injuries ensuing from attempting to leave a train in motion,' has no application. That defence is recognized in the text-books and adjudicated cases. 1 Thompson on Negligence, 115; Damont vs. Railroad Company, 9 An. 441, citing the leading Pennsylvania decision of Aspell vs. Railroad Company; Walker vs. Railroad Company, 41 An. 796. If, indeed, under the impulse of the moment due to the signal of the train official, and the custom not to come to a stop, the plaintiff had jumped, his imprudence might, perhaps, be deemed attributable to the implied direction of the company. It has been held that where the imprudence of the passenger under such circumstances is due to the error or fault of the train official, he will not be disentitled to recover for injuries. Wharton on Negligence, Secs. 375, 377; 2 Redfield on Railways, Sec. 194; 2 Thompson on Negligence, 1174; Lehman vs. Railroad Company, 37 An. 708; Odom vs. Railroad, 45 An. 1201. The plaintiff was invited by the train -signal to leave his seat and go to the platform. Under the natural expectation the train would slow, if not stop, to enable him to alight, it can not be deemed negligence that he stood on the steps of the car. -It is urged on us that his station was passed, and he went from one, i. e., the station side, go the other, and was standing on the steps on that side when the accident occurred. This was because he supposed, as he states, noii putting him out at the station, it was intended to slow up at the mill a few feet beyond. We can not hold this change in his position, induced by the natural expectation of a. chance to alight, the company owes to its passengers, charges the plaintiff with negligence. Called to the platform and to the steps of the car, for that is the significance of the whistle, and the announcement of the station by the train official, the train is neither slowed or stopped,' passes the station and the mill with a speed accelerated, when it should have been diminished, and the result the plaintiff is thrown to the ground and injured. We think the record shows a case of responsibility of the defendant.

We have given very careful attention to the question of damages. The plaintiff describes himself as a handy laboring man, had followed blacksmithing, repairing machinery and had followed farming; when working he received two dollars and fifty cents per day, and when the accident occurred was engaged in making a “slab conveyer,” for which he was to get fifty dollars. The fall bruised him in his back, ribs and shoulders. He testifies his arm was disabled, his leg shortened, and other resulting injuries are stated by him. There is in the record the testimony of a number of physicians. Two called by plaintiff testify to the injuries, but the statement from one as to the result of the injuries is that his sufferings may be serious, accompanied with the qualification he may recover. Another physician who called on the plaintiff with his family physician negatives any serious injuries to plaintiff. Two physicians, experts, appointed by the court to examine plaintiff, report no injuries to shoulders, hip, back or legs; no difference in the length of the legs, and ascribe plaintiff’s pains to some nervous trouble. We can not find in the record any satisfactory basis for damages on the theory of permanent diminution of the plaintiff’s working capacity.

It weighs with us, too, that the plaintiff, after the accident, worked at his job with no diminution of his physical ability apparent to his fellow workmen; but, of course, the effects of the fall might not then have been developed. Indeed, we think it proved the plaintiff was made sick later from the effects of the fall. The jury gave three thousand dollars. We can not perceive the basis for this verdict. We think the damages should cover the expenses of his sickness and loss of time, and some allowance should be made for his suffering. But from the examination of the record we are brought to the conclusion the judgment should be reduced.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and it is now ordered, adjudged and decreed that the plaintiff recover from defendant five hundred dollars, with interest from date of judgment of the lower court, and the costs of the lower court; those of the appeal to be paid by him.


text:
    No. 11,772.
    State ex rel. Scooler vs. The Court of Appeals.
    An intervenor claiming property seized under the writ of provisional seizure, and releasing the property under a bond to produce it, if decreed liable to the seizing creditor, is entitled to appeal to the Circuit Oourt of Appeals from the judgment of the District Court against him for an amount within the jurisdiction of the Oourt of Appeals, rendered on a rule to distribute proceeds to which he makes no claim and derived from the sheriffs sale of property other than that claimed by him; in such case the test of jurisdiction on the appeal is not the amount of the proceeds, but the amount of the judgment against the intervenor. Constitution, Article 95, as amended by constitutional amendment of 1882; Revised Statutes Sec. 2914; Jennings vs. McConnico, 25 An. 651.
    ^PPLICATION for writ of Mandamus and Certiorari.

      Benjamin B,iee Forman for Relator.

      Dinkelspiel & Hart for Respondents.
    Submitted on briefs March 25, 1895.
    Decided April 8, 1895.
   On Application for Writs of Mandamus and Certiorari.

The opinion of the court was delivered by

Miller, J.

In a suit for rent against the Athletic Olub the effects in the leased premises were seized under a provisional seizure. The relator, Scooler, intervened, claiming some of the property, which was delivered to him on his forthcoming bond. Judgment was recovered by the lessor in his suit for the rent. There was another seizure of the property on the leased premises by an ordinary creditor. The sale by the sheriff, under the writs, produced a fund for distribution, and a rule was taken to distribute that fund. The relator accepted service of the rule, but intervening only to claim his property and holding it under the forthcoming bond, conceived he had no interest whatever in the fund and gave the rule no further attention. On that rule the fund was distributed, and the court also gave judgment against the relator. for two hundred and seventeen dollars on the theory, we suppose, he was liable on bis bond, and the court was proceeding to enforce payment of the judgment by a rule for contempt. In this condition the relator took an appeal from the money judgment on the rule, and conceiving he was entitled to have his intervention tried in the rent suit, in which it was filed, he also appealed from the judgment in favor of the lessor, rendered without disposing of the intervention. When these appeals reached the Court of Appeals they were dismissed, because, in the view of that court, the fund distributed fixed the jurisdiction, and that fund exceeded two thousand dollars, the limit of the jurisdiction of this court.

An intervenor who releases, under a forthcoming bond, property claimed by him, is not to be viewed as a party claiming a share in the funds derived from the sheriff sale of the property in the leased premises. The amount of this fund is not the test of jurisdiction, applicable to an appeal by the intervenor from a money judgment rendered against him. The test is the amount of that judgment. The intervenor appears only to assert a claim of ownership, and to maintain that the property he claims is not subject to the lessor’s claim. Revised Statutes, Sec. 2914; Jennings vs. McConnico, 25 An. 651. It would be, perhaps, going beyond the issue to be determined on this application to say more than that he is entitled to have the issue tried. Whether it has ever been tried is for the Court of Appeals to determine. The judgment against the inter-venor, it seems, was rendered on a rule to distribute funds in the sheriff’s hands. Nor are we called on for any conclusion as to the asserted liability for the lessor’s demand of the property held by the intervenor. The Code will doubtless be found ample to determine that which, with other issues, we remit to the Court of Appeals. All that the case requires is the determination that a money judgment against the relator for two hundred .and seventeen dollars, and that of the lessor against his tenant for one thousand dollars, are each within the appellate jurisdiction of the Court of Appeals, not excluded because of the amount of a fund to which the relator asserted no claim. Constitution, Art. 95, as amended. Act No. 125, 1882; Code of Practice, Arts. 829, 837; Matranga vs. Judge, 42 An. 1088.

The relator also appealed from the judgment of the Civil District Court in favor of the landlord. It is presumed the appeal from the money judgment against him will serve all purposes.

It is therefore ordered, adjudged and decreed that the rule nisi be made absolute, and a writ of mandamus issue commanding the Court of Appeals to hear and determine the appeal of the relator from the judgment against him of the Civil District Court.