author: Poché, J. W a tic ins, J.

text:
    No. 9602.
    Louis Bartoli vs. Virginie Huguenard, his wife.
    TLe statement, contained in the order of appeal, that there is not sufficient time to prepare the Tecord by the next regular return day for appeals from the court a qua, even if suggested by appellant’s counsel, must he held as adopted by, and as emanating from, the trial judge.

      Hence, the Court, will not consider ax parta certificates, or affidavits, or other evidence outside of the record, touching the alleged error of such a statement.
    Under Section 4 of Act 45 of 1870, Extra Session, the trial judge has the legal discretion to fix a different return day if time is required to prepare the record for appeal, and the Supreme Court will not presume that he has abused of the discretion vested in him by law.
    There can be no reckoning between the spouses inter sese as to the quantum of labor bestowed, or capital by either withdrawn, during the existence of the community.
    The distinct interest of the wife attaches at the dissolution'of the marriage,* butneithor spouse can sue for half the price of any specific thing acquired during the marriage, when the liquidation of the community does not show any gains to be divided.
    The value of improvements and ameliorations made., upon separate property of either spouse, during the marriage, is at the expense of the community, only when it is not due to the ordinary course of things, to the rise in the value of property, or the chances of trade.
    APPEAL from tlie Twenty-fourth District Court, Parish of Plaque-mines. íávcmdcvis, J'.

      F. G. Zaoharie and F. Michmard for Plaintiff and Appellant:
    1. Revenues of paraphernal property of either spouse, during marriage, form pare of the community, when the husband has had the administration of the same. R. C. C. 2386, 2402, 2406; 16 L.l; 17 L.296; 19 L.574; 3 Ann. 611; 4 Ann. 248; 6 Ann. 634.
    2. The wife and her heirs and assigns have the privilege of exonerating themselves from the debts contracted during the niarriage. by renouncing the partnership or community of gains. R.C. C.2410.
    3. The wife who renounces loses every sort of right to the effects of the partnership or community of gains. R. C. O. 2411.
    4. The wife separated from bed and board, who has not, within the delays above fixed to begin from the separation finally pronounced, accepted the community, is supposed to have renounced the same; unless, being still within the term, she has obtained a prolongation from the judge, after the hnsband was heard, or after he was duly summoned. R. C. C. 2420.
    5 She ought also to make her renunciation within the same delays which are allowed the beneficiary heirs within which to explain his intentions. R. C. C. 2414 ; t2 Ann. 76; 15 ' Ann. 416.
    6. Under R. O. C. art. 1032, the duty is -imposed upon the beneficiary heir of having au inventory of the succession made. Under Art. 1050, R. C, 0M he is given thirty days within which to deliberate whether lie will accept or reject the succession. 12 Ann, 76 ; 15 Aim. 416.

      F. Howard McOaleb for Defendant and Appellee:
    1. "Where the witness is neither dead nor absent, hut shown to be present in the parish at the time of the trial, and his attendance could have been compelled by an attachment, testimony taken in a former suit between the same parties is not admissible, if objected to. GH. S. 351; 5L.364.
    2. The renunciation of the community is presumed from the mere silence of the wife separated by judgment a mensa et thoro during the time prescribed by law. 11 Ann. 70; 12 Ann. 76; 15 Ann. 416.
    3. The separate property of the wife, not shown to have been increased or improved during the marriage, by the common labor and expense, cannot be held liable to the husband especially where the increase, if any. is attributable to the ordinary course of things. R.C. G. 2408.

      4. One-half of the enhanced value of the wife’s separate property, at the dissolution of the marriage, caused by improvements made thereon by the community, must be accounted for by her on final settlement. 4 R. 278; 6 R. 50S; 10 R. 373. The compensation due the community is regulated by the value of the improvements at the time of the dissolution of the marriage. 8 R. 182; 12 R. 389, 390; 2 Ann. 30. Here no improvements were made on the wife’s property during marriage, consequently she owed nothing at its dissolution.
    5. Tlie incroaso in the annual sales of the orange crops, due to the fertility of the soil and not proven to have been the result of the common labor of the spouses, creates no liability on the part of the wife or her separate estate. 10 Ann. 258.
    6. There is a striking analogy recognized by law between the relations of the usufructuary and the owner and the community to the wife as regards her paraphernal property. 6 Ann. 636; 10 R. 46
    7. The community cannot recover for ordinary repairs made, nor for taxes paid upon the wife’s property. For such expenditures the usufructuary, and not the owner, is liable. R. O. C. 571-578. The wife cannot be held for the fruits of her paraphernal property administered by her husband and consumed during the existence of the community.
   On Motion to Dismiss

The opinion of tlie Court was delivered by

Poché, J.

The ground of tlie motion is error in the return day, imputable to appellant.

The order of appeal bears date October 16, 1885, and the appeal is made returnable on the first Monday of December following; to the order is added the statement, “there not being time to prepare the transcript for tlie next ensuing term.”

Tt is contended,'And it is not denied, that the return day was suggested by appellant’s counsel. The question is therefore tlie alleged error of the return day.

The law of the case is Act No. 45 of the Legislature, approved March 16, 1870.

Under its first section, appeals from the parish of Plaquemines are returnable to this Court at New Orleans on the first and third Mondays of each month of tlie session here.

This appeal should therefore have been made returnable on tlie first Monday of November, 1885, unless the judge had the legal discretion or authority to select a different day.

Section 47 of the act provides in substance: That in all cases of appeal, the judge of the court from which it is taken shall make the appeal returnable to the Supreme Court at the next return day for appeals from the parish, if there shall he time enough after granting it to give the notice required by law and to prepare tlie record; if not, then lie shall fix the return day for some day within the next term after the appeal is granted.

In this case the order contains the information that the record could not be prepared in time for the ensuing term. But appellee contends that the statement is erroneous, and in support of the contention her counsel presents two certificates to which he directs our attention.

In granting the order as framed by appellant’s counsel, the judge must in law be held to have adopted the statement for the necessity of a change of the regular return day, as well as his suggestion of the return day itself. Hence, this Court is authorized to conclude and it must therefore hold, that in the opinion of the judge a quo there was not sufficient time to prepare the record by the next regular return day.

That statement is part of the record, the size of the transcript corroborates its truth, and we find nothing in. the record to contradict it.

We cannot and we shall certainly not go out of the record for evidence to contradict that which appears in the record. Hence, wre must decline to consider either the certificates annexed by appellee or the counter affidavit filed by appellant's counsel. Wooten vs. LeBlanc, 32 Ann. 695.

We cannot presume that the judge in allowing the statement to be of record, that more time was necessary to prepare the transcript, meant to say otherwise, or erred in the statement which, under the effect of his ruling, became his own.

It is not even intimated that any attempt was made to deceive him, or to obtain any undue advantage over the appellee. The appeal taken is devolutive, and it could have been brought up by petition at any time within the year.

We have considered the cases relied on by appellee; they are not applicable to the restricted issue involved in this motion.

In those cases the motion hinged upon a motion day absolutely erroneous under the law, in which the judge transgressed the law at the suggestion of appellant, whereas in the instant case the inquiry is directed to the exercise of legal discretion by the judge of the court whence the appeal was taken. Wooten vs. LeBlanc, 32 Ann. 692; State ex rel. Lee vs. Jumel, 35 Ann. 980.

Tn the present order the judge has acted within the bounds of the legal discretion vested in him, and the appeal must be sustained.

The motion to dismiss this appeal is therefore overruled, with costs.

On ti-ib Merits.

W a tic ins, J.

At the suit of the defendant a judgment was rendered, decreeing a separation from bed and board, and a separation of property, and dissohUion of the community theretofore existing between herself and plaintiff.

The plfiiutiff brings this suit for a settlement of the community between himself and wife, “from the date of their marriage, on the 3d of February, 1873, to the date of the judgment, April 25, 1885.”

He alleges that defendant has tacitly renounced all her rights in the community having failed to signify her acceptance of it within the time prescribed by law, and hence he is owner of the entire community7 property in his owm individual right.

He claims that the revenues and crops of defendant’s paraphernal property, during the existence of the community7, amounted to $17,100; and that he advanced about $1000 for the benefit of defendant’s separate property.

He claims further that the community owns a stock of goods, kept in a store on defendant’s property, worth $600, with some outstandings, of small value.

He claims further that ho “has placed repairs on said store to the amount of $80, out of Ms separate means ; and upon the defendant’s separate property7, through Ms own labor, material, bills paid, improvements in the ‘way of ditches, fences, mátiv&tion and other works, and repairs, to the amount of $7000.

He prays judgment against defendant for the $18,330, and that he be decreed the owner of all the community property7.

There was judgment for the defendant in the court below, and plaintiff has appealed.

I.

The salient facts are these :

When defendant married the plaintiff she was Widow Virginia Rogas, and as such, the owner, in her own right, of one-half of the community7 theretofore existing between herself and Felix Rogas; and the half inherited by the children of the marriage was adjudicated to her, upon an order of court, on July 30, 1874, thereby investing her with full and complete title.

The property consisted of two pieces of improved real estate, situated in parish of Plaquemines, valued at $10,000, and movable effects valued at $4,725 82. There were, also, two pieces of property in New Orleans valued at $12,500.

The value of the entiie amount of her separate estate aggregated $27,275 82.

Atthe time of the marriage, the plaintiff was possessed of no means or property of any kind.

The defendant was the mother of four children by her former marriage. two of them minors.

After the marriage with plaintiff, she settled with her children by making sales of her separate estate.

The whole of the defendant’s separate property passed under her husband’s administration, and the fruits wnd revenues thereof fell into the new community.

Defendant does not deny that she lias renounced and abandoned tho community; and avers that she owes the plaintiff'nothing; and that her separate property has been in no way benefited, or improved by the community, or its value enhanced.

At the dissolution of the community, by the judgment, there was ■no community property on hand, except the claims enumerated against defendant, as assets.

A quantity of testimony -was introduced in the court below, for the purpose of proving that the plaintiff was a sober, industrious, hardworking man ; and that the value of the orange crops produced annually, on defendant’s separate property, had greatly increased, under his management, and were sold for more money than theretofore.

But the fruits of the paraphernal property were not in esse at the dissolution of the community. They had been used and eonsu/med during the husband’s administration, and, presumably, for the account of the community. They were absolutely at the plaintiff’s disposal. R. C. C. 2404.

II.

The matrimonial community is not a partnership. R. C. C. 2807; 32 Ann. 792, Succession of Cason.

Therefore, there can be had no reckoning, as between the members, inter seso, as to the quantum of labor bestowed, or capital, by either withdrawn. The legal import of the words community property ” is a community of property.

R. C. C. 3401 declares that the community consists of “ the profits of all the effects of which the husband has the administration, and enjoyment, either of right or in fact, of the produce of their reciprocal labor and industry of both husband and wife, etc.”

Tn the same manner, the debts contracted during- the marriage outer into the community, and must be acquitted out of the common property. R. C. C. 2403.

At the dissolution of the community, “ all effects which both husband and wife reciprocally possess, are presumed common effects, or gains,” until the contrary is shown. R. C. C. 2405.

It is provided by R. C. C. 2406, that “the effects which compose the * * community of gains, are divided into two equal portions between the husband and wife, or between the heirs, at the dissolution of the marriage; and it is the same with respect to the profits arising from the effects which both husband and wife brought reciprocally in marriage, and which have been administered by the husband, or by the husband and wife conjointly, although what has thus been brought m marriage, by either the husband or wife, be more considerable Hum what has been brought by the other, or even although one of the two did not bring anything at all.

When the effects of the community arc partitioned, the husband and wife are equally liable for the debts contracted during the marriage. R. C. C. 2409.

But the wife may exonerate herself from them by renouncing the community. R. C. C. 2410.

She thereby loses all right to the community assets ; but sbe may retake her paraphernal property. R. C. C. 2411.

The wife, separated from bed and hoard, who has not evinced her intention to accept the community, within the time allowed to beneficiary heirs for deliberating, is presumed to have renounced it. R. C. C. 2414, 2420; 12 Ann. 76.

•( The distinct interests of the parties attach at the dissolution of the marriage, subject to the right of the rvife, or her heirs to renounce, and he exonerated from community debts.” 9 La. 583, German vs. Gay; 4 O. S. 652, Gale vs. Davis.

Although the distinct interests of the rvife or her representatives attach at the dissolution of the marriage, subject to tlie right to renounce, they can claim nothing- until the debts be paid. They cannot sue for half the price of any specific property acquired during the marriage, where the liquidation of the community does not shoio any gains lo be divided.” 1 R. 378; 7 R. 378; 2 Ann. 30.

“Jn settling a community between a surviving partner and the heirs of the deceased, particular reference must be had to its affairs at the. dissolution.” 16 La. 40, Thibodeaux vs. Thibodeaux.

“ The property, found at the dissolution of the marriage, constitutes the body of acquets and gains.”

Reduced to this last analysis, this suit is for the recovery from the wife of oue half of the alleged profits of her separate property, while under the administration of the plamtijf, and which he had the right to use at pleasure, and his alienation and enjoyment thereof could not have been prevented by the wife; and the whole of which have been consumed by the community, and not one tithe of which is now in existence.

Tlie- effect of liis recovery would be to entitle him to take from the wife’s separate property enough to reimburse him, and thus confiscate her estate.

If such an interpretation be placed upon the provisions of the Code in relation to the community of acquets and gains, the paraphernal property of the wife would be completely at the mercy of the husband. By his administration its fruits and revenues become subjected to his absolute control; and the wife is powerless to restrain either his use or abuse of them.

But when used and consumed — according to plaintiff’s theory — he is entitled to east up all accounts, for the value of his labor, material employed, bills paid, cost of cultivation of crops and the value of crops produced and sold during the community, and charge up to the wife’s debit one half and collect it out of her separate estate.

In our view of the law, it is subject to no such construction.

The partition and settlement of the community must he predicated upon the condition of things at the date of Us dissolution. Whatever property there is remaining at that date, is subject to the payment of community debts and the residue may be divided between the spouses. If the debts exceed the value of the property, or there he a likelihood of it, the wife may relieve herself from responsibility by making a renunciation. But, in no event, can any part of the expenses or expenditures of the community he charged against the wife’s separate property.

To permit this to be done would be to violate a prohibitory law.

“The wife, whether separate in property by control or judgment, or not separated, cannot hind herself for her husband, or conjointly with him, for debts contracted by him before or during the marriage.” R. C. C. 2398.

The law could contradict itself by denying the. wife the power to bind herself for debts contracted by the husband, and yet authorize the husband to use. and consume the property of the community and charge her separate, property, without her cousent, for its value.

This view of the law dispenses us from the necessity of passing upon plaintiff’s bill of exceptions, reserved to the rejection by the court of the evidence of his witness, Antonio Piaggini, which had been taken on a former trial and which comes up with the record annexed to the bill. It would be of no avail.

III.

With respect (o (he plaintiff’s claim for improvements placed, during the existence of the community, upon the, wife’s separate property, whereby its value became enhanced; and for debts of the wife paid by the community, the proof is desultory and unsatisfactory.

The Code provides that when the separate property of either spouse has been increased or improved during the marriage, the other shall be entitled to one half the value of the increase, but there shall be no reward due if it be proved that the increase is due only to the ordinary course of things, to the rise in the value of property, or the chances of trade.” R. C. C. 2408. 2 Ann. 30, Depas vs. Ruz; 6 R. 514; 4 R. R. 236; 33 Ann. 540, Succession of Roth; 38 Ann. 700, Succession of Foreman; 38 Ann. 728, Succession of Beaux.

The evidence fails to establish plaintiff’s demands.

Judgment affirmed.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 9851.
    The State of Louisiana vs. John E. Duffy.
    Continuance on the ground oí absence of witnesses, who are out of tbe State and beyond the process of the Court, will only be enforced in strong and clear oases in which three elements must concur: (1) Materiality end admissibility of the evidence: (2) due diligence; (3) affirmative showing that the absent witnesses can and will'beproduced at the future term.
    The judge a quo, having exhibited strong reasons, showing that these requirements have not been complied with, and having concluded that the application was made for delay, his ruling will not be interfered with.
    The proces verbal of the coroner’s inquest is admissible for the restricted purposed’showing the fact and cause of death.
    The Constitution authorizing the appointment of an assistant coroner, his authority to hold inquests is recognized, the holding of such inquests being the main and nearly solo purpose for which the office of coroner exists.
    Where the procos verbal is signed by the assistant coroner, it will be presumed that he was the officer who held the inquest, although there had been a failure to correct the formal recital that the inquest was held before the coroner.
    It appearing that no hurt to justice resulted to the prisoner, technicalities wilt not bo strained to avoid a trial and sentence.
    APPEAL from the Criminal District Court for tbe parish of Orleans. Balcer, J.

      M. J. Ounningham, Attorney General, and Lionel Adams, District Attorney, for tbe State, Appellee.

      Walter FT. Rogers for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The record presents three bills of exceptions which we will consider in the following order :

1st. A bill was taken to the refusal of a motion for continuance, based on the absence of material witnesses and supported by affidavits.

These affidavits contain all proper allegations as to diligence and good faith on the part of accused; but they disclose that the witnesses required are absent in the State of Mississippi, and out of the process of the Court. It further appears from the statements of the judge that, at a former trial of the case, the same witnesses had been summoned, and that it then appeared that all of them, except one, were returned by the sheriff as not found, or out of the city, and that the one, who then appeared in answer to the summons, was not, at that trial, put on the stand. No showing is made in the affidavits of any reasonable certainty that, if the case were continued, the attendance of the witnesses could and would be procured. The only statement on tlio subject is the following: “that the witnesses are laboring men, and your deponent is informed that they have procu red work across the lake, in the State of Mississippi, which will occupy them some time, but not more than a month; that they are residents of this city, which is their homo, and won’t return before the next term of court,” coupled with the additional statement that “the presence of said witnesses can be had at the next, term of court.” It, moreover, appears on the face of the affidavits that the defendant had long been aware of the transient character of these witnesses and of their liability to be absent, for he wrote to the District Attorney more than a month before requesting a trial on the ground that “his witnesses were laboring men, and were liable to take work whenever offered;” yet he took no steps to secure their attendance, or to guard against their probable absence. R. S., 1014. Moreover, the affidavits make no showing than the evidence expected would have been admissible. Four of the witnesses were exjmeted to prove previous threats of the deceased against the life of the accused; and the fifth was expected to prove not only the making of such threats, but that he communicated them to the accused.

Another element is essential to make such evidence admissible, viz: proof of an overt attack or hostile demonstration by accused against the deceased. 33 Ann. 1087; 34 Ann. 1078; 37 Ann. 443, 491, 644, 782, 896.

The affidavits make no suggestion of the intention -or ability to tender such proof. The judge states that the evidence taken on the former trial satisfied him that no such proof could be made; and it further appears, from the judge’s statement in refusing the motion for a new trial on the samo ground, that no such foundation was laid for tlie admissibility of the evidence, even had the witnesses been present.

The authorities positively, and with great reason, discountenance continuances on the ground of absence of witnesses who are not within the process of the court. As said in one case: “If trials for capital offenses could be postponed on affidavits of this sort very few oases would ever be tried at all, and none at the first, court after the arrest of the offender, unless he were willing. * ? No compulsory process can issue to obtain their testimony. The presumption is that they would not attend at another court, or they would have attended at the trial when the life of the defendant -was in jeopardy.” State vs. Files, 3 Brev. S. C. 304.

The rule is that three things must concur to support such a. continuance: “ (1) That the witness is really material (including, of course, admissibility of his expected evidence), and appears to the court so to be ; (2) that the defendant has been guilty of no neglect; Í3) that the witness can be had at the time to which the trial is deferred.” King vs. D’Eon, 1 Wm. Bl. 510; Mull’s case, 8 Gratt. 695; 3 Whart. Cr. L. § 3022, et seq.; 1 Bishop Cr. Proc. §951 (a); Wharton’s Cr. P. & P. 589.

The judge a quo concluded that none of these requisites sufficiently appeared in the affidavits and facts of this case and expresses his conviction that the application was made for delay.

We fail to discover any such manifest error or injustice as would alone authorize us to interfere with the discretion of a trial judge in a question of continuance. 36 Ann. 86, 853; 37 Ann. 129, 787.

2d. A bill was reserved to the overruling of the objections of defendant to the admissibility of the proces-verbal of the coroner’s inquest to prove the fact and cause of the death of deceased. The objections are of two classes, viz: First, general, to the admissibility of the coroner’s inquest at all, under any circumstances or for any purpose; second, special, to the admissibility of this particular procesverbal on the grounds of its irregularity and defectiveness.

.So far as the general objections are concerned, we consider them precluded by the jurisprudence of the State.

In Parker’s case, the same general objections were considered, and it very deliberately ruled that the proces-verbal of the coroner’s inquest was admissible for the restricted purpose of establishing the fact and cause of the death.

It was then contended that the existence of a special statute authorizing the introduction of the inquest as evidence before the grand jury, impliedly excluded it as evidence before the petit jury; but the court said : “The direction of idle statute, that the coroner’s inquest is to be used as evidence before the grand jury, is not an exclusion of its use before the petit jury.”

The special statute above referred to has not been included in the revised statutes and is claimed to have been repealed under the general repealing clause; and it is now contended that the fact of such repeal prevents the admission of the inquest before the petit jury. There is less force in the latter than in the earlier position. The decision in Parker’s case rests on reason and authority, independent of statute. ít has been since followed and we adhere, to it. State vs. Parker, 7 Ann., 84; State vs. Melville, 10 Ann., 457; State vs. Roland, 38 Ann., 19.

The. special objection urged to this particular proees-verbal, is that, while reciting in its body that the. inquest was held “Before me, Ur. J. J. Finney, coronel for the, parish of Orleans,” and purporting to be signed “by said coroner and jurors,” the same is not signed Ur. Finney, but by “Stanhope Jones, M. D., assistant coroner.” The, Art. 147 of the Constitution authorizes the coroner of this parish to appoint an assistant at a salary not exceeding $3000. Such a provision would seem to be self-operative. As, under the provisions of law requlating the office of coroner (R. S. Sec. 649, et seq) there seem to be no substantial duties except those connected with the holding of inquests, it might be inferred that the object in having an assistant was to hold inquests when the coroner himself was otherwise engaged. Moreover, independent of this provision, the, Sec. 667 of the R. S. authorized the coroner to appoint a deputy to perform his duties “in case of sickness or ueeessary absence.” Faulkner’s case settles the principle that where the appointment of an assistant or deputy is authorized by law and is made, it will be presumed that the conditions existed under which the law authorized the appointment. State vs. Faulkner, 32 Ann. 725.

We are, authorized to assume that Dr. Jones was regularly appointed and acted within the limits of his authority.

We are not disposed to attach importance to the recitals in the act as showing that the assistant coroner, who certified the proees-verbal) did not hold the inquest.

It is a suggestion too powerful to be resisted, that the discrepancy is the result of a mere clerical omission to alter a recital in a printed form of proees-verbal, and it is nowhere asserted as a fact that Dr. Jones did not actually hold the inquest. But, in every event, the judge in liis reasons says: “I)r. Jones, the assistant coroner, being absent from the State, the proces-verbal was admitted solely to prove the cause of death. The accused has never denied that he killed Gardner, but claims that he acted in self-defense. Counsel does not even pretend that there is any dispute as to the cause of death. Expert testimony was not necessary to prove the cause of death ; death was almost instantaneous as a result of knife-wounds.”

Under such circumstances, it would be straining technicalities beyond all reasonable limits, to remand this case for so immaterial a matter, which would not advance, but only hinder, justice. Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 9805.
    Widow Patrick Dwyer vs. James J. Woulfe et als.
    Want of consideration and knowledge of circumstances of relief, under which a note was issued and a mortgage consented to secure ics judgment, may be pleaded against a third part}’, but cannot exonerate the drawer and mortgager, unless fully established against such party whose presumed innocence is always implied.
    Representations of indebtedness and of ownership by one and acted upon by another, in good faith, conclude the former and protect the latter.
    APPEAL from the Civil District Court for the parish of Orleans. Bightor, J.

      JPosey & Ker for Plaintiff and Appellee.

      Sam. L. Gilnnore for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

This suit was originally brought against the present named defendant and as co-defendant against the succession of W. J. Castell and the surety of the latter as a notary public in this city.

The substantial allegations were that the plaintiff is the holder of a certain note for $5000 of Woulfe, to his own order and by him endorsed, secured by mortgage on real estate, described in the act which was executed before Castell, as notary; that said act was not seasonably recorded in the mortgage office; that shortly after the execution of this act, Woulfe issued another note of $1500, which was secured on the same property, and that this act was recorded ; that it was only some time afterwards that the plaintiff had her act recorded in the mortgage office; that for whatever damage may result to her from the non-registry of said act of mortgage, she is entitled to indemnity by Woulfe, Castell and Ms surety.

Exceptions were filed by Woulfe and the succession of Castell and the surety, which were sustained in part, dismissing the action, except as against Woulfe, and reserving plaintiff’s rights on the notes against the defendant, Woulfe.

The defendant then answered, pleading non-liability not only for want of consideration, but also because the property mortgaged did not belong to him; that the note issued by him was executed for Castell’s benefit, and that plaintiff Ic-new of those material facts.

Prom a judgment in favor of plaintiff, defendant appeals.

As no appeal was taken by |>laintiff from the judgment on exceptions, ■which dismissed the suit as against Castell’s succession and the surety, the only controversy before us presently involves the liability of the defendant to plaintiff on the $5000 note issued by him and secured by mortgage, as already stated.

The record contains notes of objections from both parties, designed to serve as bills of exceptions taken to rulings touching evidence admitted or rejected. There was no mention made of them here, either in the oral or in the printed argument. As they appear to have no force, it must be presumed that the jiarties against whom they were made have abandoned them.

The plaintiff has introduced in evidence the note sued on and the act of mortgage by which it is secured, and also certificates of registry in the mortgage office.

Interrogatories on facts and articles having been propounded to the plaintiff, she answered, and her answers were filed in evidence. She, herself, was sworn as a general witness in her own behalf. She testified in chief and "was cross-examined.

The defendant did not testify.

A witness was heard for plaintiff to show how it happens that the act of mortgage was recorded by plaintiff after Castell’s death, namely, that plaintiff having ascertained then only that it had not been registered at the time it ought to have been, had it recorded.

Tlie only defenses set up by Woulfe are, 1st, want of consideration ; 2d, knowledge in plaintiff that the property mortgaged belonged to Castell, and that the note issued by him was uttered for Castell’s benefit.

To prove want of consideration, the burden being on him, as the note is for value received, and as the act of mortgage confesses a loan, the defendant relies on the evidence of the plaintiff, which is to the effect, that she never gave Mm any money.

If this statement was to stand alone, the defendant would have made some showing; but the plaintiff did not stop there. She gave the history of tlje whole matter in a way which explains the discrepancy between her counsels’ avormcnt in the petition and her testimony on the stand.

She, substantially, says that she had given $5000 to Castell to be invested by him for her; that he gave her his note therefor, accompanying it with several small mortgage notes ; that some while after, he suggested to her that it would be preferable for her to have, instead of these small notes, a large mortgage note; that he offered the note of Woulfe secured on his (Castell’s) residence, which was amply worth the amount: that this note was issued and the mortgage was executed, and that Castell gave her his note-and Woulfe’s mortgage note pinned together.

She says she does not know what Castell did with the money, or what passed between him and the defendant; that all she knows is that Castell got her money, gave her his note and Woulfe’s note pinned together in place of it.

It maybe that Castell invested her money in Wonlfe’s note and secured its payment by giving his note in pledge; or it may be that he. invested the money in his own note and gave Wonlfe’s note as collateral security.

Castell is dead, and there is no evidence on the subject, save that of plaintiff, defendant, Woulfe, not having testified.

In the first case she became the owner of Woulfe’s note; in the second she acquired Castell’s note.

It is true that being asked, whether Castell had given the mortgage note to her in pledge, she announced in the negative.

This proves nothing to relieve defendant; she could have sued, either as owner or as pledgee of the note, as she wished; and it was a matter of the utmost indifference to the defendant in what capacity be was sued by her. He owed his note, whether the. plaintiff had a title to it one way or the other.

The facts speak louder than plaintiff’s words, particularly when it is not shown that she hneio the meaning of the technical term pledge.

It was an unnecessary — nay idle work — to aver in the petition that the pi aintiff had loaned any money to the defendant. It would have been sufficient to allege possession of the note and the granting of the mortgage without setting forth ownership. 3 A. 268.

This averment was controlled by the act of mortgage, copy of which was annexed to'the petition as part, which showed that the defendant bad issued the note for value received and had given a mortgage in favor of another party, named in tiie. act-, on property of which he claimed to be. the owner.

As to the defense that plaintiff knew that the property mortgaged was Castell’s and that the note sued on had been issued for his benefit, it should suffice to say that such knowledge has not been shown.

The plaintiff testifies to the reverse and states that Castell several times told her he had no property.

It is true that the defendant attempted to introduce a counter letter given by him to Castell, but that document could not be received, as it had not been recorded previous to the date of the mortgage in question and was therefore in no way binding on third parties, plaintiff being viewed in that light.

The circumstance that Castell told the plaintiff that Woulfe’s note would be secured on his (Castell’s) residence cannot be construed so as to infer from it that Castell thereby declared that the property belonged to him and not to Woulfe.

Numerous indeed are the parties who occupy as their residences, the property of other persons.

At that rate, how lucky would tenants be, who could by one word transform themselves into landlords.

If the facts were as defendant represents them to have been, it was his privilege and interest to have had himself heard in his own behalf, as a witness, but he has selected not to do so.

Prom this version, the court cannot do less than infer that he kept silent either because he could not by himself establish his own defence, or that, if heard, he would testify adversely to himself.

The fact is that in the act of mortgage he has acknowledged an indebtedness for the amount of the note and has consented a mortgage to secure its payment on real estate which he held out to the world not only by his act of purchase, but in the act of mortgage, as belonging to him.

After admitting such indebtedness represented by the note issued for value received and after claiming ownership and exercising rights inherent thereto, and thus inducing an innocent third party to act on such representations, he cannot be permitted now to deny the truth of them or charge their falsity, so as to affect rights which may have been acquired by such, third party acting on them.

The defendant finally contends that, if plaintiff did not have actual she had constructive knowledge of the double fact that the property belonged to Castell and that the note had been issued for his convenience.

To establish that circumstance, he urges that all that which tho agent has notice of, must be imputed to the principal.

The rule, however well founded it be, can be enforced in snob cases only in which the law allows it to be applied and is not without exceptions, which it is unnecessary to enumerate.

It is more than enough to say , that it has no bearing whatever in the instant controversy which is removed from its operation for the dazzling reason that there is not the remotest shadow of proof, that the property in qnestion was Castell’s property and that the note was issued for his accommodation.

The plaintiff says she did not know it, the defendant has not testified and the act of mortgage shows that the property mortgaged was acquired by defendant from Castell.

How can it, be pretended that an agent knew of a certain fact and that this knowledge binds his principal, where it is not proved that the fact existed, or what is worse, where it is established by evidence concluding the party making the defence, that the fact did not exist.

We, therefore, conclude that the District Court has correctly determined the issue.

Judgment affirmed.


author: Pochb, J.

text:
    No. 9346.
    Townsend Lawrence vs. Morgan’s Louisiana and Texas Railroad and Steamship Company.
    The owner of lands, who allows a railroad company to occupy and use the same for the construction of its road and other appurtenances necessary to the operation of a railroad, without remonstrance or complaint, will be held to have acquiesced therein and sucb a waiver will bar his action to dispossess the company.
    Bat such a waiver will not defeat his right of action for damages or for the value of the lands thus taken by him. Affirming St. Julien vs. Railroad, 35 Ann. 924.
    The franchises of a railroad corporation are rights or privileges which are essential to the operations of the corporation, and without which its roads and works would he of little value, such as the franchise to run cars, to take tolls, to appropriate earth and gravel for the beds of its road, or water for its engines, and the like. Morgan ya. Louisiana, 93 U. S. 217.
    Such franchise includes the right of appropriating lands for the construction of necessary appurtenances, without which the road could not be successfully operated.
    Sucb a franchise is transferred in a marshal’s sale of a railroad and all its franchises to the purchaser, even if he is a natural person.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      B. Ti. Forman and FJdward Simon for Plaintiff and Appellant.

      Ijeovy ds'Leovy, ,T. T. Flair and Farrar cfe Kruttschnitt for Defendant and Appellee.
   The opinion of the Court was delivered by

Pochb, J.

Plaintiff appeals from a judgment rejecting his demand in a petitory action for the recovery of several tracts and strips of land, situated in Morgan City, in the possession of the defendant company, and on which it has erected depots for freight and passengers, several railroad tracks, switches, workshops, coal yards, cattle pens and steamboat landings and wharves, all used for. the purposes of a common carrier, both by land and water.

Both parties claim title under Robert B. and Thomas T. Brash ear, who once owned the plantation from which Morgan City was carved out, and which included the lands now in controversy. In addition to the plea of ownership through an alleged claim of title, the defendant company urges numerous other grounds of defense, among which is the averment that the present claimant and his alleged authors witnessed the possession of defendant of the several tracts of land in suit, were cognizant of the structures which the company placed thereon, from the year 1859 to the date of the suit, as the needs of the business required; that none of them ever objected to the company’s possession and use of the lands aforesaid for the purposes of the company’s business as a common carrier, and that such acquiescence is a bar to plaintiff’s action to dispossess the present corporation, which has lawfully acquired all the rights of its predecessors and authors.

Although we have considered all the other features and bearings of the case, we reach the conclusion that this defense finds ample support in the record, as well as in the law governing the case, and we shall rest our decision on that plea.

The principle which underlies that ground of resistance was discussed before this Court, and it received the serious attention which was commensurate with the importance of the results likely to flow therefrom, in the case of St. Julien vs. Railroad Company, 35 Ann. 924.

In that case, under the guidance of a most respectable authority, this Court crystalized the principle into the following rule : “One who permits a railroad company to occupy and use his land and construct its road (a quasi public work) thereon, without remonstrance or Complaint, cannot afterwards reclaim it free from the servitude he has permitted to bo imposed upon it. His acquiescence in the company’s taking possession and constructing its works under circumstances which made imperative his resistance, if lie ever intended to set up illegality, will be considered a waiver. But while this presumed waiver is a bar to his action to dispossess the company, lie is not deprived of his action for damages for the value of the land, or for injuries done him by the construction or operation of the road.”

Prom the record we gather the following facts which have a bearing on this branch of the defense : * ■

The lands in suit are situated at the point which was for many years the actual terminus of the railroad which had been built by the original incorporators, the New Orleans, Opelousas and Great Western Railroad Company, under a charter granted by the Legislature of Louisiana in 1853, and under the obligation to continue the construction of the road west of that point, namely, Berwick’s Bay to the Sabine river.

In divers transactions, some in 1853, others in 3856, and others in 1857, that corporation obtained grants of lands for the construction of tracks, switches, depots, and other railroad appurtenances from R. B. and T. T. Brasliear, the then owners of these'lands, and from their legal representatives.

As the State of Texas soon became, in its trade with New Orleans, one of the principle feeders of the traffic of that road, it was found necessary', in view of the unfinished condition of the road, to reach Texas ports by steamers plying between the terminus of the road and Berwick’s Bay and sundry points in Texas.

The needs of that kind of transportation soon required landing facilities at the Bay for freight, live cattle and passengers to and from the steamers, which resulted in additional grants of land, in order to meet the exigencies of the newly developed purposes from the then owners of the adjacent lands.

In July, 1869, the road, with all its branches and franchises, was bought at a United States marshal’s sale by Charles Morgan, who owned and operated it as the “Morgan’s Louisiana and Texas Railroad” until April, 1878, when the whole was acquired by the defendant corporation by' purchase from him.

During Morgan’s ownership many additions and improvements were made and erected, in order to supply' means necessary to a double transportation, by' land and water, and some additions have been made since the purchase of the present defendant.

Many of these improvements called for additional appropriations of land, although many works were erected on water and some railroad tracks were laid on portions of the public streets, with permission of the municipal authorities of Morgan City.

Now plaintiff rests his claims of ownership under a probate sale made in the successions of R. B. and T. T. Brashear, in May, 1871, and many of the improvements and works for which additional tracks or strips of the lands which lie claims were used, have been erected since the date of his purchase. And although he was all that time a resident of the place, the-record is barren of any proof of the'slightest remonstrance or complaint on his part against any of the acts of the company, either under Morgan or under the present corporation.

As to his predecessors, the proof of their acquiescence in every act of either the old company or of Morgan, in occupying portions of their lands for the purposes of their quasi public works which thus were, almost continuously erecting, is still more affirmatively shown. Such an acquiescence dates as far back as 1857, when the owners of the Brashear plantation, laid out a town at that point, which in time became Brashear City, the name being afterwards changed to Morgan City.

On their sale maps, they marked out and specially designated tiie various portions of their lands which they then and there dedicated to the use of the railroad company.

Their express consent, which is more than an acquiescence, to the occupation by the company of the far greater portion of the lands now in suit, is contained in the various acts of transfer and grants which we have herein above referred to.

We note that these transfers are alleged by plaintiff to be null and void, for many reasons not necessary to be herein mentioned. For che purposes of the present discussion we are not required to pass upon that contention, as our consideration of them has been specially restricted to their effect as indicia of acquiescence, or absence of remonstrance or complaint; and not as muniments of title.

Plaintiff also contends that the acquiescence of his authors and of himself cannot benefit the alleged encroachments of Morgan during his ownership, because a natural person cannot exercise corporate rights. But this argument has already been met and answered in several adjudications of this court, and of the .Supreme' Court of the United States, in suits involving the discussion of the veiy rights which Morgan had acquired under his purchase of the Opelousas railroad in 1869. In the case of Morgan vs. Louisiana 93, U. S. 217, the Supreme Court in defining what wore. the. franchises of which the, purchaser of the road liad acquired at the marshal's sale, said: “But the term must always he considered in connection with the corporation or property to which it is alleged to appertain. The franchises of a railroad corporation arc rights or privileges which are essential to the operations of the corporation, and without which its road and works would he of little value; such as the franchise to run cars, to take tolls, to appropriate earth and gravel for the bed of its road, or water for its engines, and the like. They are positive rights or privileges, without the possession of which the road of the company could not he successfully worked.”

It takes no argument to show that the foregoing description impliedly includes the right of appropriating strips of land necessary to the construction of depots, cattle pens, coal bins, sheds and the like, without which this road could not have been successfully operated. State vs. Morgan, 28 Ann. 482; Fazende vs. Morgan, 31 Ann. 549; St. Julien’s case, 35 Ann. 924.

Under the face of those authorities, we hold that, as one of the rights acquited by Morgan under his purchase, he became vested with all the franchises of the Opelousas railroad corporation, whose road was a quasi public work, for the successful operation of which was included the right of appropriating lands necessary for the construction of indispensable works.

Under the conclusions which we have reached, the defendant company is left in the occupation of the lands in suit, and plaintiff is not stripped of his right to urge such claims as he may have for the damages which may have been inflicted on him, or for the value of the Lands which may have been taken from him.

Judgment affirmed.

Mr. Justice Todd recuses himself.


author: Podrá J. Bermudez, C. J. Fenner, J.

text:
    No. 9372.
    C. Paul Bertrand vs. N. King Knox et als.

      A citation judicially held to be absolutely null is not sufficient to interrupt prescription running in favor of a defendant.
    Hence, the citation served on a married woman, under a petition in which she is sued as a . single woman, caDnot subsequently, after the defendant is sued as a married woman and duly cited, be invoked as a citation sufficient to interrupt prescription.
    'Plirough such a citation the married woman was not made a party to the suit, and if the service of the legal citation is made after prescription has acquired, the defendant having been cited too late, the plea of prescription is good, and it will defeat the action

      APPEAL from tlio Seventeenth District Court, Parish of East Baton Rouge. (¿-reeves, Special Judge.

      Favroi <ff Lama'll for Plaintiff and Appellant.

      I). K. Burrow and Knox ds Laycoek for Defendants and Appellees.
   The opinion cf the Court was delivered by

Podrá J.

Plaintiff as a judgment and mortgage creditor of Mrs. Adele Bory, brought this suit for the purpose of annulling and setting aside a judgment obtained by the defendant, Knox, against Mrs. Bory, his co-defendant, on the 38th of November, 1882, on the grounds, substantially, that said judgment was rendered by a court without jurisdiction, and that it was fraudulent and collusive between the parties thereto, at a time when the defendant therein was insolvent (o her knowledge as well as to that of the plaintiff, Knox, to whom Mrs. Bory was not indebted at the time that the judgment was rendered.

The judgment of the District Court rejected plaintiff’s demand, and he prosecutes this appeal.

This case was before us last year, and it was then remanded for the purpose of bringing into court Mrs. Bory, who was found to bo a necessary party in the case. The defect pointed out in plaintiff’s proceedings was, in substance, as follows:

Tn his first and supplemental petitions he has omitted or failed to state that Mrs. Bory was a married woman, and, hence, citation was served on her as though she was a single woman, without joining her husband therein, and without an order of court authorizing her to stand in judgment. Subsequently, more than a year after the suit had been pending, on an amended petition by plaintiff, stating that Mrs. Bory was married and that her husband was absent and in France, an order was made by the District. Court, authorizing her to stand in judgment in the suit. The order was not served on her, but immediately after its rendition a default, was entered against her and the trial proceeded to judgment.

On appeal, this Court set aside the judgment as null and void for want, of allegations making Mrs. Bory a party, and it was then held that by the mode of proceeding against her, she had not been made a parly to the suit. When the case reached the District Court, Mrs. Bory was served with the order authorizing her to appear and defend the suit. She is now legally a party in the ease.

Bui the delay incurred by the plaintiff in reaching that line of attack, which was accomplisiied in July, 1886, has allowed the defendant, Knox, time to seek shelter behind another intrenchment.

We note here that Mrs. Bory has never made any defense or appearance whatever during the whole contest.

Iler co-defendant, Knox, lias interposed the plea of prescription of one year under the provisions of Article 1994 of the Code, which reads as follows :

“The action given by this section is limited to one year, if brought by a creditor individually, to be counted from the time he has obtained judgment against the debtor, if brought by syndics or other representatives of the creditors collectively, from the day of their appointment.”

The right of Knox to plead this proscription derives from Article 3466 of the Civil Code, which provides, in substance, that all persons who may have an interest which can be subserved by prescription, have the right to make the plea even when they from whom they desire this right or title should renounce it. Giddens vs. Mobly, 37 Ann. 900, and authorities therein quoted. In this case Mrs. Bory has not renounced prescription, but her silence is equivalent thereto. Having in our previous opinion sustained Knox’s plea that Mrs. Bory was a necessary party, we must consistently recognize his plea of prescription as to her.

It appears from the record that the two judgments which plaintiff holds against Mrs. Bory were, rendered respectively on the 13th of December, 1883, and the 4th of January, 1884; lien'ce, more than one year had elapsed in J uly, 1886, when the citation on Mrs. Bory was legally perfected.

But plaintiff’s contention is that the service of citation on his original petition made on Mrs. Bory, on the 28th of February, 1883, and of his supplemental petition on the 12th of February, 1884, was sufficient in law to interrupt inscription, although confessedly insfffficient to bring Mrs. Bory into court as a defendant.

In support of Ms contention plaintiff relies on a line of authorities in our reports which have “established a distinction between the technical sufficiency of a citation as a basis for the maintenance of proceedings and judgments, and its sufficiency for the purpose of interrupting- prescription,” and he confidently argues that his case is covered by the decisions which have held that a defective citation is sufficient to interrupt prescription.

But the conclusions announced in our opinion remanding- his cause do not simply qualify the defect of his proceeding as an imperfect citation, but they reach much further, and amply justify the-inference that there was a total want of citation.

The fundamental error which the opinion discloses is that Mrs. Bory had not been made a parly at all, and that, therefore, the, paper served upon her, purporting to be a citation, was, in law and in fact, an absolute nullity.

The practical effect of the decision is that a petition asking for process on Mrs. Bory (apparently) a single woman, in her own rights, could not bring into court Mrs. Adele Bory, wife of Dr. Adolph Bory' a person absolutely incapacitated to become a party to a suit without the authorization of her husband, or in default thereof, that of the court.

After reciting the salient facts connected with the attempt to bring .Mrs. Bory into court, the opinion contains tlxe following language:

“We think a recital of the above facts sufficiently answers the question as to whether she was made a party to the suit. It could not be claimed that the, judgment rendered l>y default had any validity or had any effect against her. And why ? Because by any straining of the law it could not he reasonably asserted that she was ever a party to the suit. The proposition is not maintainable by law or reason that she was legally brought into court by the order of the tenth of March, 1884, more than a year after she had been served with a citation and of which order she was totally ignorant. * * * In the petition it was not stated that Mrs. Bory’s husband was absent nor oven that she was a married woman, and there was no prayer of course for her authorization. She was sued as a single woman. . * * *

We conclude therefore that Mrs. Bory was never legally a party to the suit, and we have shown that she was a necessary party. ”

The necessities of the present discussion required the foregoing copious quotation from our opinion, mainly for the reason that the ease is reported only by syllabus. 38 Ann., P. 350; Bertrand vs. Knox, et al.

From the tenor of that opinion it appears clear to the legal mind that the question which concerned the court was an issue much more serious and more vital to the legality of the proceedings than the question involving merely the technical sufficiency of the citation. As already stated the court was called on to decide whether under the allegations and the prayers of plaintiff’s three, petitions, the process which had issued against, and had been served on Mrs. Bory, was sufficient tinder any circumstances to make her a party to a suit in which she was an indispensable or necessary party.

Hence, the court ruled that because she liad been sued as a siugle woman, because the order predicated on the amended petition filed in .March, 1884, did not allow her any delay for answering or for making lior defence, and because the order of authorization in question had not yet been served on her, she had not yet been made a party to the suit at all, or in other words, that she had not been cited. Now such service was confessedly not made before the mouth of July, 1886, and it was therefore only at that time that she became a party to the suit, more than two years after the latest of the two judgments held against her by plaintiff. Hence the plea of prescription is good. Although that plea had been made before our previous decision was rendered it is plain that we were powerless then to entertain it. Holding as we did that Mrs. Rory was not before the court, a ruling on any other question would have been an idle and meaningless ceremony, and a ruling which would have been binding on uo one.

It is that feature of the case, as determined in the language herein above quoted from our previous opinion, which removes the discussion beyond the scope of Article 3518 of the. Civil Code, and clearly distinguishes the plea herein made from the issues decided in the cases on which plaintiff rests his greatest reliance.

In the case of Bush vs. Margaret Decuir and Husband, 11 Ann. 503, the court held that citation served on tire wife, and not on the husband, was sufficient to interrupt prescription. But it appears that the defendant was sued as a married woman, that her husband was made her co-defendant, hence the plaintiff was not legally responsible for the neglect or omission of the clerk to issue citation for the husband. The service of the citation on the wife was lawful, and although incomplete, it was the beginning of a legally sufficient citation as the basis of a valid judgment, and as such sufficient to iuterrupt prescription.

The ease of Satterley vs. Morgan, 33 Ann. 846, involved a plea of prescription in a suit for damages. The defect of the citation consisted in its being addressed to Charles Morgan, New Orleans,” the-Sheriff’s return showing service on “Charles Morgan, through A. C. Hutchinson, agent in person.” On exception the suit was dismissed, with right reserved to plaintiff to obtain- legal citation. When properly cited the defendant pleaded prescription, but this court held the previous defective citation as sufficient to interrupt prescription. It was shown in that case that A. C. Hutchinson was the agent of Morgan with authority to receive citation, it had been served on him ; and the only error in the pleadings was to treat Morgan as a resident, and to liave omitted to state in tlic petition that Hutchinson was his attorney-in-fact.

This imperfect statement is sufficient to demonstrate (he material difference between that class of cases and the issue now under discussion.

Our conclusions may operate a hardship on plaintiff, but they are the unavoidable results of his own laches — and through them we make a similar disposition of the case which was done by the District Judge, although we reach it through a different process of reasoning.

Judgment affirmed.

Concurring Opinion.

I.

Bermudez, C. J.

The right of Knox to set up the defense of prescription, to protect himself and not Mrs. Bory, appears unquestionable.

The law accords to all creditors and persons, who have an interest in the extinguishment of an allegation, the right to plead prescription for themselves, even if the person bound by the obligation should renounce such prescription. R. C. C. 3466; C. N. 2225.

“Ce serait une erreur de croire que la prescription n’a d’effet qYantan t qu’elle est opposóe par celui qui a prescrit et que c’est au profit de ce dernier une faculté persounelle. * * Les créanciers peuvent ex-ercer les droits de leurs débiteurs. Bigot Préameneu Disc, et Motifs, 8 Mars, 1804.”

“Cette régleest unedes consequences déla régle genérale qui réprouve, soit les dispositions et les arrangements frauduleux, conpus pour éluder des obligations, soit méme des actes qui ne sont que le produit d’nn penchant trop liberal, ou d’un faux caleul, lorsqu’ils tournent au detriment de personnes envers lesquelles on s’est oblige. Dans tons les temps, cette classe d’individns a excité toute la solicitude des législateurs et des tribunaux. Que deviendraient lours droits, le plus sou-vent, s’ils étaient livrés a la discrétiou des débiteurs? Vazeille Pres. No. 353.

“II n’est pas d’un liomme juste, de laerifier ses obligations los plus étroites a celles qui out moins de faveur et de forcé.” Troplong Prese. V. I. No. 100, Duranion V. 21, No. 152.

See, also, Larthet vs. Hogan, 1 Ann. 330; Succession of Gill, 6 Ann. 342; 2 Ann. 546, 367; 8 Ann. 505; 12 Ann. 661.

TT.

There can be no doubt that prescription may be interrupted by whoever has an interest to keep a claim alive, whether the debtor wishes or not, and that the presumption of remission or abandonment of the right may be rebutted and removed by showing and proving such interruption.

It is not, however, any act of the creditor that can produce that effect. The law requires that the debtor shall have been cited. This means that the creditor shall sue the debtor, and have the process of law properly and seasonably served on him.

If the debtor be an incapacitated person, such as a minor or a married woman, the creditor must, as a condition precedent to the service of the citation, put that debtor in a legal position to appear and defend himself, by making him legally a party to the suit, even where the saméis brought before an incompetent court. C. P. 115, 118; R. C. C. 121, 124, 125, 3518.

If a suit is brought against a minor instead of being instituted against the tutor directly, or against a married woman, without joining her husband, neither the minor nor the woman being made a party and put in a condition to appear and defend the suit, it is evident that service on them of the process of court will not justify a default and confirmation of it, or a judgment rendered after appearance and answer. This is so, because the person cited had no capacity as such to appear or plead.

“Tout écrit de forme propre a faire annuler une assignation, est de nature á empecher l’iuterruption de la prescription, sans qu’il y ait á rechercher s’il vient d’une faute grossiére, ou s’il tientit l’inobservation de formalités trop minutieuses.” Vazeille, No. 107.

“II faudrait également regarder l’iuterruption comme non avenue, si la citation était donnée á une personue incapable de se défendre, ou a tout autre qu’a l’administrateur légal de ses biens.” Duranton, V. 21, No. 266.

In the present instance, this Court, between the same parties, in this same suit, has decided that Mrs. Bory had never been made a party. It annulled the judgment rendered against her and remanded the case for the purpose of enabling the plaintiff to malee her a party and serve the process of court.

This decision is not only authority, but constitutes res judicata.

Had the plaintiff originally asked that Mrs. Bory and her husband be cited, a service on her would have interrupted prescription (C. P. 192; Bush vs. Decuir, 11 Ann. 503); but this was not done. The omission is fatal. Hence, Mrs. Bory, not being a party to 'the suit originally, could not be legally served with .a citation so as to interrupt prescription. This is so, for the plain reason that a mere citation served on one who is not a party to the suit, does not interrupt prescription.

The law relieves a creditor from defects in a citation served when they are not the results of his own acts, or not attributable to him ; but it holds him responsible for any omission occurring by his fault or negligence. The iienalty is the loss of his claim when the plea is set up.

As the plaintiff ought to have put Mrs. Bory, when he first sued on, in a condition to appear and defend herself, either by asking that her husband be cited, or by having her authorized by the court to do so during his absence (as was subsequently done), she was not a party; she was not in court; she had no right to protect herself judicially, and he must stand the consequences of his derelictions.

It is true, that the plea of prescription now insisted upon was previously before us; but we would not even consider it, as Mrs. Bory ■was not then a party to the suit, her presence, being necessary.

The original citation did not interrupt prescription, and the plea set up is well maintained.

Dissenting Opinion.

Fenner, J.

I dissent from the opinion and decree herein.

1st. The same prescription was vehemently urged by Knox when the case was here before, and, if the views now taken are sound, should they have been maintained? It was useless to remand the case to perfect the citation of Mrs. Bory, if the prescription pleaded by Knox was then a bar to the further prosecution of the suit under any subsequent proceedings.

2d. The citation of Mrs. Bory, though she was not, at the time of service, authorized either by the Court or her husband, even if not valid as a basis for proceedings and judgment, was, under well established jurisprudence, sufficient to interrupt prescription. Bush vs. Decuir, 11 Ann. 503; Satterlee vs. Morgan, 33 Ann. 846, and authorities there cited, in not one of which was the citation sufficient to make the. defendant a party, or to bring him into court.

3d. The suit is one by a creditor to annul a judgment obtained by Knox vs. Mrs, Bory. There is no dispute that Knox was cited in time, and even if Mrs. Bory was not, she is now cited, and does not plead prescription. There is no principle or authority supporting the right of Knox to interpose the plea for his co-defendant.

Art. 3466 C. C. and the decisions based thereon apply to a class of cases too different from this to give them the slightest application.

Todd, J., concurs in this opinion.


text:
    No. 9935.
    The State of Louisiana vs. J. Natal, et als.
    A change in the charter of a municipal corporation, or o substitution of a new charter to the old one, will not be deemed, in the absence of express legislative declaration otherwise. to affect the identity of the corporation.
    The city of New Orleans, founded by Bienville in 1718, is identically the city of New Orleans in 1887.
    Its present charter, 1882, repeals all laws in conflict or inconsistent with, or contrary toils provisions, and by irresistible implication maintains all special laws, not at such variance with them.
    Act 100 of 1878, relative to private markets, in furtherance of which ordinance No. 4798 A S. has been adopted, forbidding private markets within six squares of a public market, is a special law and is not in conflict with the charter of 1882 and has not been repealed, neither has been said ordinance, which being legal, justifies the infliction of fine, etc., in cases of violation of its prohibitions.
    APPEAL from the First Recorder’s Court. Dewey, J.

      W. II. Boyers, City Attorney; I. O'Donnell, Assistant City Attorney ; and Blanc & Butler for Plaintiff and Appellee.

      Belclen <£ Armbmster and S. J. B. Smith for Defendants and Appellants. ■
   The.opinion of the Court was delivered by

Bermudez, C. J.

The defendants appeal from judgments rendered against them for the payment of a fine and in default of payment sentencing them to imprisonment for the violation of ordinance No. 4798 A. S., which forbids the keeping of private markets within six squares of a public marker within the limits of the City of New Orleans.

The facts are admitted.

Several defences are set up, the main of which is that the law in furtherance of which the ordinance was adopted, as well as the ordinance itself, have, been abrogated, annulled and repealed and are'no longer in force j that, therefore, the line imposed under the authority of the ordinance, is illegal for want of a law and that this court has consequently jurisdiction over the causes.

It is claimed that this repeal results from the adoption of the pres-sent city charter, in 1882, with which the law conf icts.

The defendants further urge that the laws of 1878, under the provisions of which the ordinance was passed, contemplated a monopoly and was abrogated by the present charter, and is in violation of the Constitution of the United States.

We consider that these and other objections to the constitutionality or legality of the ordinance in question and others similar to it, have been already considered and judicially determined in favor of the regulation.

Besides, the defendants in the instant cases have not urged them on appeal and may be considered as having abandoned all resistance on those grounds. Dillon on Mun. Corp. 380, 3 La. 217; 4 Ann. 335; 27 Ann. 417; 31 Ann. 544; 36 Ann. 986; No. 8603 of the docket of this court, not reported in full; also in cases Nos. 9582, 9583, 9584 not yet reported.

So that, the only question now to be solved is whether the ordinance was or not repealed.

The ordinance in question, No. 4798 A. S., was adopted in 1878, under the provisions of act No. 100 of the Legislature previously adopted in the same year, the object of which was the regulation of private markets in the city of New Orleans. From that time to the present day, it has uniformly been enforced ; what resistance was ever made to its application, having been judicially pronounced groundless and unauthorized.

The defendants in the present controversy however, argue that the city of New Orleans in existence at the date of the passage of the law and of the adoption of the. ordinance, has ceased to exist as such, under the operation of act 20 of 1882, which is the charter of the city now in existence ; that said law and said ordinance were not perpetuated, but were ignored and abrogated by the last charter, and that the present prosecutions are attempts to enforce a defunct municipal regulation, in violation of constitutional and statutory law and of the personal rights of the defendants.

The theory thus advanced rests upon the assumed proposition that the city of New Orleans in existence in 1878, is not the city of New Orleans existing in 1887.

This is a fallacy arising from a misconception and a-confusion of ideas on the subject.

The city of New Orleans, founded by Bienville about 1718 lias never ceased to exist as an agglomeration of human beings for social, commercial and industrial purposes.

It is a growing fact, which no legislation has ever blotted out and which no power can annihilate in a free country, although it be true that the form of government to which its inhabitants have been remitted, or the mode in which it may exercise its rights and powers, has from time to time been modified or changed. It is the emitas or polis of ancient- times.

The inhabitants had a right to congregate and to establish a city for their greater comfort and welfare. In the absence of any charter incorporating them, they are like the rest of citizens in the country ruled by the general laws enacted for the government of all throughout the territory.

In 1805 those inhabitants- were given a charter, for the first time since the cession of 1803, and that charter has been altered or amended some way or other, in subsequent years, viz: 1812, .1818, 1833, 1835, 1837, 1846, 1850, 1852, 1870 and 1882, but the city, the existence of which was generally recognized by the various constitutions, has retained its identity, not only as a matter of fact, but also as a matter of legal necessity.

Whatever rights it originally possessed, whether because expressly conferred by the sovereign or because indispensably inherent to its nature and existence, it has continued to possess, unless where such rights have been recalled or denied by the properly constituted authority.

The present Constitution, Art. 254, gave authority to the General Assembly to cancel its charter and to remit its inhabitants to another form of government, if necessary.

The Legislature did not, however, formally cancel its previous although it changed the form of the municipal government.

This is apparent from the reading- of the last section of the charter of 1882, which merely repeals the laws in conflict, inconsistent with or contrary to the provisions of the act.

By irresistible and clear implication, this section contemplates in effect the maintenance and continuation in favor of special1 laws not falling within the purview of the act, namely not conflicting with it.

Tt will not do to say that, in the beginning- of the act, it is declared that the inhabitants of the Parish of Orleans were created a body corporate and established as a political corporation by the name of the City of New Orleans, for the fact is, that the Legislature did not and could not create the city of New Orleans which had existed long before the act of 1882.

To create is to bring to life, to animate, to vivify, that which never existed before.

What the Legislature did was to continue the City of New Orleans as a municipal corporation, and to invest it with powers which it did not previously possess, or to impose on it obligations to which it had not been subjected. The charter is the machinery whereby the city is put in motion and operates.

This is so true that the charter of 1882 transfers to the actual city all the rights, of any nature whatever, which the city then in existence possessed and enjoyed. Sec. 28.

The laws which, from time to time, have been specially framed for the government and administration of the municipal affairs of the City of New Orleans, have, therefore, continued in force, except such as may have been modified or repealed, expressly or impliedly.

The same may be said of such ordinances and regulations as the city may have passed in furtherance of these laws. Hence, -when the laws are modified or repealed, the municipal legislation, in pursuance thereof, is altered or recalled; but when those laws remain unchanged, as in the present case, that municipal legislation continues in full force and effect while it remains subject itself to modification by its framers.

This proposition is so palpably evident that it is upon it that the defendants have built up the theory that the act of 1878, under the authority of which the ordinance in question was adopted, having been repealed, the ordinance in question, which is an outgrowth of it, has died away with it.

The city charter of 1882 does not purport to have repealed, in any manner, express or implied, the act of 1878, which is a special law. On the contrary, as that act is in no way in conflict, or inconsistent with, or contrary to the provisions of the new charter, the irresistible inference is that it has continued in full force, and that the ordinance passed in execution of it, to regulate the distance at which private markets shall be kept from public markets, has likewise continued in effect, and must be enforced in all proper cases.

The conclusions which we have reached are supported by good authority. Dillon on Mun. Corp., 3d Ed., Nos. 171, 172; City of Maysville vs. Schultz, 3 Dana Ky. 11; City of Olney vs. Harvey, Ill. Rep. 50, 454; Trustees Erie Academy vs. City of Erie, Pa. R. 31, 517; Frank vs. City of San Francisco, 21 Cal. 668; Girard Heirs vs. Philadelphia, 7. Wall 1, and Broughton vs. Pensacola, 93 U. S., p. 266.

In this last case the highest tribunal in the land distinctly held that a change in tlie charter of a municipal corporation, or the substitution of a new charter in place of the old one, will not be deemed, in the absence of express 1 egislative declaration otherwise, to affect the identity of the corporation.

See, also : Toullier Dr. Cir. Fr., i, i, t, i, No. 202; Henry de Pansey, Pourin Municipal, pp. 36, 37; also, 2 Woods 632, Milners’ Admrs. vs. Pensacola.

It is, therefore, ordered and decreed that the judgments appealed from be affirmed, with costs.


text:
    No. 9830.
    Succession of Alexander Harris.
    A party is not estopped by judicial declarations made for the purpose of simplifying proceedings and for the common interest and convenience of all parties concerned, and which have neither misled nor damaged anyone.
    Heirs who intervene in a succession proceeding as opponents to an account filed by the executor and ask therein for an order directing the executor to pay over the money to them, thereby recognize the existence and validity of the succession proceeding, and cannot sot up its nullity as a ground for relief.
    Taxes levied on the business of a partnership form part of the expenses of the business, and, when recovered back from the government, are to be distributed among the jiarfcners according to the terms by which the expenses were shared.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Ohas. V. Olaiborm for the Executor, Appellee.

      Jonas <& Nixon on the same side.
    IF. H. Bogers and Bayne <& Denegre for Opponents and Appellants.
   The, opinion of the, Court was delivered by

Fenner, J.

From' 1860 io 1869 three brothers, Alexander, Aaron and Levi J. Harris were members of a commercial partnership, engaged in the exchange and brokerage business, under the firm name of Alexander Harris. The firm was dissolved in 1869 by the death of the. two brothers, Alexander and Aaron Harris.

Alexander left a will appointing his widow and his brother, Levi J. Harris, testamentary executors, who qualified and fulfilled their trust and were duly discharged, after what was supposed to be a full settlement of the estate in 1870.

Subsequently, it was discovered that certain internal revenue taxes which had been paid to the United States Government by the firm of Alexander Harris, might be recovered, and Levi J. Harris employed Judge William R. Whitaker as his attorney to prosecute the claim.

Although it was well known to all parties concerned that the claim belonged to the Arm, yet as it was necessary, in any event, that there should be a legal representative of Alexander Harris, and as the payment and receipts had all been made in his exclusive name, the attorney deemed it best to prosecute the claim in his sole name and account, without disclosing the other parties in interest.

Accordingly the attorney prepared and filed a petition in the Civil District Court, in the name of Levi J. Harris, setting forth his prior appointment and discharge and the subsequent discovery of this claim in favor of the succession and the necessity that “some one should be authorized to further prosecute said claim and administer the proceeds thereof on behalf of said succession,” and praying to be reappointed as executor. The appointment was made, and, thereafter, a petition was filed in the United States Court of Claims, in the name of L. J. Harris, as executor of Alexander Harris, containing the allegations that the taxes had been paid by Alexander Harris, and praying for judgment for the amount thereof. The sum of $6606.08 was recovered and collected by L. J. Harris, executor, and, in 1885, he filed, in the succession of Alexander Harris, his account, proposing the following distribution thereof:

Amount paid J. G. Kimball and.Wm. R. Whitaker, attorneys to prosecute and collect the claim against the United

States Government, 25 per cent thereof................$1,658 15 Commission of executor, 2-1- per cent....................... 165 15

Attorney of succession.................................... 75 00

Reserved for future costs.................................. 50 00

$1,948 30

Balance............................................. 4,657 78

$6,606 08

To be equally divided in the proportion of one-third each between the members of the late firm of Alexander Harris or their heirs, or each the sum of $1552.59.

The heirs of Alexander Harris- oppose this account, claiming that the whole amount collected should be paid over to them.

1st. They claim that Levi J. Harris is estopped, by his judicial declarations and conduct, from disputing that this fund was recovered for, and belongs to, the succession of Alexander Harris.

We think the estoppel pleaded has no foundation in law or justice.

The general doctrine that a party is bound by his judicial declarations aud is estopped from subsequently denying them is well established and supported by the numerous authorities cited by the learned counsel for opponents. But, as we very recently said in reference to a like plea of judicial estoppel: “The doctrine of estoppel, however apparently emphatic, is full of exceptions, which vary according to circumstances, and was never designed to apply to a case like the instant one, in which the declaration made has led no one astray and occasioned damage to nobody.” Stockmeyer vs. Oertling, 38 Ann. 102.

The Supreme Court of the United States has said : “The primary ground of the doctrine is that it would be a fraud in a party to assert what his previous conduct had denied, when, in the faith of that denial, others have acted. The element of fraud is essential either in the intention of the party estopped, or in the effect of the evidence which he attempts to set up.” Brant vs. Virginia, 93 U. S. 335.

There is no dispute that this tax was paid by the firm, aud the repayment was due to the firm, and that Judge Whitaker was employed to prosecute and recover the claim for the benefit of the parties interested in the firm. The proceeding in the name of Alexander Harris solely was taken under his advice and direction, and for convenience merely, and all the pleadings were framed by him for the purpose of forwarding this end.

As said by Mr. Greenleaf, in discussing estoppels : “It is, however, in such cases material to consider whether the admission is made independently and because it is true, or is merely conventional, entered into between the parties from other causes than a conviction of its truth and only as a convenient assumption for the particular purpose in hand.” 1 Greenleaf Ev., § 204.

It is obvious that the declarations made in the proceedings here were so made for the purpose of advancing the convenience and interest of all parties in interest, and have subserved that purpose. The heirs,of Alexander Harris have been in no manner injured or prejudiced thereby, and it would be the grossest injustice to allow them, on such technical grounds, to defraud their associates of their fail' share of this partnership fund.

2d. Opponents claim that the re-opening- of the succession of Alexander Harris, after the same had been fully closed, and the re-appointment of Levi J. Harris as executor, are nullities, and that L. J. Harris, thus stripped of the quality of executor, has nothing to do but to turn this money over to the heirs of Alexander Harris, as whose agent lie received it, leaving himself and the heirs of Aaron Harris to their personal action against said heirs for the recovery of any claim they have in the funds. Whatever may be the propriety and validity of those proceedings under the circumstances of this case, the fact remains that L. J. Harris was actually appointed, qualified and confirmed as executor, that he collected money as such, and that he is bound to account therefor to the court which appointed him. Opponents might have ignored these proceedings or might have taken action to annul them, and might have relied on a personal action against L. J. Harris to enforce their rights; but when they intervene in these proceedings as opponents to the account of the executor, and ask for an order directing him to pay over these funds to them, they necessarily recognize his executorship, in which capacity alone is lie before the court or subject to its orders and direction. The case presents no feature of a personal action against- L. J. Harris, individually ; and, even if it did, the principles governing the distribution would not be different.

3d. We think the court did not err in dividing this fund equally between the three partners in the concern of Alexander Harris.

Although the interest of the parties in the profits was not equal until the last two years of the partnership, yet the junior partners, Aaron and Levi J., never bore less than one-third each of the expenses, a,nd, as the taxes on the business were part of the expenses, they aic entitled to an equal share in this sum paid on that account and now recovered.

For two years prior to the dissolution, the three parties shared equally in expenses and profits.

We are referred.to a dictum of Mr. Lindley in his work on partnership, to the effect that “'under ordinary circumstances and in the absence of any agreement to the contrary, money earned ought to be treated as profits of the year in which they are paid, and not as profits of the year in which they are earned.” If this rule were applied, then even if this collection were treated as profits, its division would be properly governed by the interests of the partners as existing at. the close of the partnership. We doubt, however, if this rule would be applicable to cases in which there had been a change in the respective interests of the partners. Rut wo think there is no doubt that tho taxes paid were pioperly expenses and as such should bo shared.

4th. We can perceive no íelevancy in the suggestion that these taxes had been charged by the firm to its customers. The (ax was levied on the firm, collected from the firm, and recoverable only by the firm or for its account.. Whatever may be the rights of the customers, the partners stand on an equal plane in regard to each other and the heirs of Alexander have no greater rights than those of Aaron or than Levi J. Harris. If the funds are to be received at all by auy or all of the partners, each must receive bis proper share.

We find no error in the judgment appealed from.

Judgment affirmed.