author: "Miller, J.

text:
    No. 13,082.
    State ex rel. Columbia Debenture Company, Limited, vs. Judge Division “B,” Civil District Court, Parish of Orleans.
    Syllabus.
    \.To suspend the execution of a decree obtained by the State annulling the charter of a corporation or enjoining persons claiming to be incorporated •from acting as corporators, and appointing a receiver, a bond sufficient iu .amount to cover costs will suffice.
    QN APPLICATION for writs of mandamus and prohibition.

      E. T. Florance for Relator.
    Respondent Judge pro so.

      M. J. Gunningham, Attorney General, F. E. Eainold and Stijfi & Madison for the State of Louisiana.
    Submitted on briefs February 8, 1899.
    Opinion handed down February 20, 1899.
   'The opinion'of the court was delivered by

"Miller, J.

In the suit brought by the State to enjoin the relator from exerting its alleged corporate functions, there was judgment •decreeing the asserted charter void and null, enjoining the officers of •the alleged corporation from acting and appointing a receiver to take •charge of the property. From this judgment the relator applied for A suspensive appeal on a bond for costs, which application the court •denied, and fixed the bond at one-half the cash assets of the corporation disclosed by the testimony, the bond being thus fixed at forty--six thousand dollars.

The law prescribes the amount of the bond to be given for the suspensive appeal from the judgment condemning the appellant to pay a .specific sum, and fixes the amount of the bond for such appeal when the judgment decrees the delivery of movable or immovable property. Code of Practice, Articles 574, 575, 576 and 577. The Code .then prescribes a bond for costs to serve in other cases. Code of Practice, Article 578. There being no other rules in the Code of Practice relative to the amount of appeal bonds, our jurisprudence is .settled that in the large class of cases in which the appellant is not •condemned to pay money, or deliver property, a bond for costs will .suffice for a suspensive appeal. State of Louisiana vs. Judge of the First District, 19 La. 167; Blanchin vs. Steamer Fashion, 10 An. 345; Bank of America vs. Fortier, 27 An. 243. The relator contends the principle of these decisions governs the amount of the bond to be furnished in this case for a suspensive appeal. The precise question presented to the lower court, and to this court, on the application for the mandamus; has never hitherto arisen. Our learned brother of the lower court, after' careful examination, has reached the conclusion 'that the bond must be for the amount prescribed by Article 574. The State is the plaintiff in the suit. It asserts no money demand, nor claims any property. We find great difficulty in applying the rule for the amount of this appeal bond, that finds it natural, we do not say exclusive, application when the judgment to be suspended enforces the money demand of the plaintiff, or for the delivery of the property. On this application we must consider the relation of the ’State to the subject matter of the controversy. It is in court to procure the decree annulling the pretended charter of the corporation. ’The proceeding is by the Attorney General under the law authorizing suit by him, “when any association or number of persons shall act within this State as a corporation without being duly incorporated,” Revised Statutes, Section 2593, paragraph 3; or if the suit is to be viewed as seeking the forfeiture of a subsisting charter for ■violation of its conditions, or abuse of its privileges, then the decree ■of forfeiture is the object the suit is to accomplish. Civil Code, Article 427: Atchafalaya Bank vs. Dawson, 13 La. 497; State ex rel. Lannes vs. Attorney General, 30 An. p. 954. In the legislation of 1842 (no longer in force), for the liquidation of insolvent banks, the-decree of forfeiture was to be followed by the appointment of commissioners. We have no such legislation now, though there-is the-provision that when the charter of any corporation shall be decreed.^ forfeited, the Governor shall appoint a liquidator. Eevised Statutes,. Section 731. In our view, the State in Court, under the law, to obtain the decree enjoining the defendant from acting as corporatorsof an alleged corporation, and the decree that they have no corporate-capacity, has no interest or right to demand the bond to suspend the-decree rendered by the lower court prescribed by articles of the Code of Practice of ready application, if the judgment sought to be suspended was that in favor of a receiver suing for money or property.

If the State had any pecuniary interest in this controversy we might find room to apply the precedent furnished in an early decision, not exactly analogous, but instructive. The plaintiff in injunction in that case furnished a bond for costs to suspend the decree dissolving the injunction. The injunction thus kept in force by the bond for-costs only, prevented the defendant in injunction from enforcing a large money demand secured by mortgage. The court, on the application for the writ of prohibition to restrain the mortgage creditor from proceeding, sustained the bond for costs as sufficient for the suspensive appeal, but in view of the insufficiency of the bond given by plaintiff for the injunction, required the relator to file in this-court an additional bond to secure such damages as the mortgage creditor might sustain by the injunction. State of La. vs. Judge of the First District, 19 La. 167. The State in this case has no pecuniary interest to protect, and is not required to interpose to protect shareholders or creditors of an association claimed to be unlawful and' fully competent to protect themselves.

It is therefore ordered, adjudged and decreed, that the mandamus herein issued be made peremptory, and that the relator be allowed a. suspensive apppeal as of the date of the tender of its bond for an amount sufficient to secure costs.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 13,075.
    Mrs. Mary G. T. Stempel vs E. Fulton et als.

      Syllabus.
    "When the Judge of the District Court' has by inadvertance fixed an insufficient bond for a suspensive appeal and thereafter has dismissed the appeal, on application for a certiorari to the Circuit Court by defendant, the transcript of appeal having been filed in the Court of Appeal, that court should direct the appeal to stand as a devolutive appeal, the bond being sufficient to secure costs and being for the amount fixed by the District Court. Marshal vs. Railroad, 5th Ann. 361; 2nd Ann. 462.
    IN RE E. Fulton applying for certiorari or writ of review to the Court of Appeals, Parish of Orleans, State of Louisiana.

      Theo. Ootonio for Petitioner.

      E. Howard Mc-Oaleb for Respondents.
    Submitted February 20, 1899.
    Opinion handed down February 20, 1899.
   'The opinion of the court was delivered by

Miller, J.

The relator seeks the writ of certiorari to the Court of Appeals for the parish of Orleans, to review its action in refusing a mandamus to compel the. allowance of a suspensive apppeal by the District Court from the judgment against relator.

The judgment against relator by the District ■ Court was for one ■thousand dollars. By an inadvertance of the judge the bond for the suspensive appeal was fixed at fifty dollars, the amount being inserted by the counsel for the appellant, and the bond was furnished. Thereafter the plaintiff took a rule to set aside the suspensive appeal on the ground the surety was not good and sufficient, and because of the insufficiency of the bond in amount. The insufficiency of the bond would, with more propriety, have been addressed to the -appellate court, though the jurisdiction of the lower court has been ■affirmed to set aside an erroneous order such as to direct a suspensive appeal on a bond for costs to suspend a money judgment of one thousand dollars. State ex rel. Cieutat vs. Judge, 32 Ann. p. 816; State vs. Judge, 6 An. 548; 1st Hennen’s Digest, p. 330, No. 3. But it is clear that though the. bond fixed by the District Court was insufficient for a suspensive appeal, the bond was good for a devolufive appeal, and the District Court instead of setting aside the appeal should have maintained it as a devolutive appeal. This error, the relator sought to correct on his application to the Court of Appeal,, but his prominent ground of complaint was that because of a bond furnished for costs, the District Court could not set aside an improvident order for the suspensive appeal. In our view the District Court should have been directed to modify its order so as to maintain the relator's appeal as devolutive only, or in view of the fact that the record of appeal has been filed in the Court of Appeals, as relator brings to our notice in his application to the court that the order to be made by the Court of Apjieals is that the appeal of the relator stand as a devolutive appeal, reserving to the plaintiff in the lower court to proceed with his execution, and our learned brothers of the Court of Appeals, well advised of the law, doubtless assumed that on the bond for costs the relator would have the benefit of a devolutive appeal, and had no purpose to disturb it.

It is therefore ordered and decreed that the Court of Appeal for the parish of Orleans, on the application to it of the relator, do maintain his apppeal as devolutive, reserving the right of plaintiff in execution to proceed with it.


text:
    No. 13,015.
    Monroe Building and Loan Association vs. D. A. Johnston, Sheriff, et al.
    Syllabus.
    (1) When the injunction has ceased to be operative before the suit is tried and the party enjoined has by third opposition obtained the proceeds of the property he sought to subject to his execution when it was enjoined, the court in dissolving the injunction is not warranted in imposing on plaintiff in injunction the maximum of twenty per cent, damages under Article 304 of tho Code of Practice.
    (2) The unpaid vendor of machinery has the right to seize and sell the machinery, although it may have been attached to and has become part of the immovable that is mortgaged. 32nd Ann. 1285 : 40th Ann. 1044.
    ON APPEAL from tho Fifth Judicial District Court for the Parish of Ouachita. Millsaps, Judge ad hoc..

      Hudson, Potts & Bernstein, (C. J. Boatner of Counsel) for Plaintiff and Appellant.

      A. A. Gtunby for Defendants and Appellees.
    Argued and submitted January 30, 1899.
    Opinion handed down February 20, 1899.
   The opinion of the court was delivered by

Miller, J.

The appeal is by plaintiffs from the judgment condemning them to pay damages caused, it is claimed, by an injunction issued by them to restrain the sale of property under the writs of one of the defendants, the plaintiffs having a special mortgage on the property.

The defendants, the J. A. Fay & Egan Company, had furnished the Ouachita Excelsior Saw & Plaining Mills certain machinery which attached to the mill plant, became immovable by destination. The debt for the machinery being unpaid, the Egan Company obtained' judgment for the debt, with privilege on the machinery, and were about selling- the machinery under their execution as they had the-right to do. The plaintiffs, the Monroe Building and loan Association, were creditors, with a special mortgage on the mill property, the-mortgage including the machinery, subject, of course, to the privilege-of the vendor. The 'plaintiff enjoined the sale of the machinery.. Subsequently the property was seized and sold under the writ of the-Monroe National Bank, and the Egan Company on their third opposition claimed and were paid all the proceeds of sale realized from-the machinery. After all this, the injunction suit came on for trial,, and the plaintiffs’ injunction was dissolved with two hundred ana fifty dollars damages as the fee of the attorney of the defendant in-injunction, and from that judgment the plaintiffs appeal.

The basis for the injunction was that the plaintiffs, mortgage creditors of the Mill Company, apprehended that their security, i. e., the mortgage on the entire mill property, would be depreciated by a sale of the machinery separate from the plant of the mill company. But it is clear the Fay Company had the right to seize and sell the ma«hinery they had sold and on which they had a privilege for the unpaid price. Carlin vs. Gordy, 32nd Ann. 1285; Walburn-Swenson Co. vs. Darrell, 40th Ann. p. 1044. The judgment of the lower court, ■therefore, properly dissolved the injunction. Nor do plaintiffs question in this court the judgment dissolving the injunction, 'Their complaint is of the allowance of two hundred and fifty dollars damages for the attorney’s fees.

The injunction was wrongfully issued, but subsequently the defendants in injunction obtained on their third opposition, the proceeds of sale of the machinery they had sold. The injunction as an interference with defendants’ privilege and consequent right to the proceeds of the machinery, had ceased to operate when the injunction was dissolved. The third opposition had accomplished all that could have been obtained by the execution of the Egan Company enjoined by plaintiff. Damages on the dissolution of the injunction are given on the theory that the injunction has stayed the enforcement of the rights of the execution creditor, the defendant in injunction. Code ■of Practice, Article 304. In this ease the injunction stayed the defendants’ execution only for a brief time, and they waived their right to proceed on the execution by filing the third opposition, on which they obtained the proceeds of the machinery. The defendants could not claim the maximum damages permitted by the Code on the dissolution of injunctions, when before the dissolution is decreed, the right to the execution is waived and the fruits of the execution have been realized in another mode. In view of the fact that defendants were enjoined from the enforcement of a legal right and thus compelled to employ counsel, and in view of the operation of the injunction for a limited time, i. e., until defendants, resorted to the third opposition, in our opinion, an allowance of one hundred and fifty dollars for the fee of the attorney for defendant would be proper.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended so as to allow one hundred and fifty dollars attorney’s fee instead of two hundred and fifty dollars, in which respect, i. e., allowing two hundred and fifty dollars, be and is hereby reversed and avoided, and in other respects the judgment be and is hereby affirmed, with costs of the lower court to be paid by plaintiffs in injunction, those of the appeal by defendants.


author: Breaux, J.

text:
    No. 12,992.
    Mrs. Callie Appleby and Husband vs. A. Lehman & Co. and the Sheriff.
    Syllabus.
    ■On the face of the papers there was an attempt made to give an undue preference to some of the creditors of the vendor.
    A sale in which the vendor leaves it to the vendee to make a pro rata division of the price among the former’s creditors (especially as the vendor sold all his property and in other sales did not stipulate for a pro rata division among the creditors) is not binding upon creditors, so as to preclude them from suing out a writ of attachment.
    The sales of record evidence an intention to prevent and hinder the creditor from collecting, and to place thé property beyond the reach of his creditors, in violation of Article 240 of the Code of Practice.
    "The law forbids to give in payment to one creditor to the prejudice of the other, any other thing than the sum of money due.”
    A dation en paicment of all the debtor’s property is null even though in one of the sales between him and his vendee there is a stipulation for a pro rata division of the price among the creditors, the amount being much less than the sum of his debts.
    ,/NN APPEAL from the Thirteenth Judicial District Court for the vy Parish of East Feliciana. Golsan, J.

      W. F. Reman for Plaintiff and Appellant.

      Isaac D. Wall for Defendants and Appellees.
    Argued and submitted January 11, 1899.
    Opinion handed down January 23, 1899.
    Rehearing refused February 20, 1899.
   The opinion of the court was delivered by

Breaux, J.

This was a suit’for damages in the sum of three thous- •and dollars which plaintiff alleges was caused by an illegal seizure under a writ of attachment, and in addition to the claim foi damages, for an injunction restraining the sheriff and the creditor who had proceeded by attachment to recover his claim, from proceeding further runder the writ of attachment. In January, 1898, Peter W. Appleby sold to plaintiff all his stock of goods and fixtures in the store, inventoried, the act sets forth, by disinterested parties, at two thousand three hundred and twenty-four and 78-100 dollars.

The consideration for the act is made to appear by the following:. That Mrs. Callie Appleby is to credit certain judgment notes held by her against P. W. Appleby with the said amount of two thousand three hundred and twenty-four and 78-100 dollars, and Mrs. CallieAppleby further agrees to pro-rate with the creditors of P. W. Appleby out of the amount above written. We are informed by the testimony that the different conveyances made by the vendor to plaintiff included all the personal property of the vendor and all his real estate. Ilis notes and accounts he also transferred to plaintiff to be collected and the amount collected also to be divided pro-rata among all his creditors.

The real estate was conveyed to plaintiff by P. W. Appleby for cash in three deeds; two bearing the same date, viz, 19th of January, 1898, and one the 31st of January, 1898. In one it is declared the “consideration for which this sale and transfer is made and accepted is the price- of fifteen hundred dollars paid, or to be paid; fifteen hundred dollars cash in hand, the receipt of which is hereby acknowledged by vendor.”

In the other deed the consideration was four hundred and two dollars cash.

With reference to the first price, the vendor stated “that he has “ now not received it, but that, in reality, the property was conveyed “ to the vendee because it was her property.”

The other deeds set forth cash consideration, but no such cash was-paid.

The testimony refers to other transactions and indebtedness for which the conveyance was made.

In February, 1898, defendants sued out a writ of attachment, against the vendor charging him with having infringed upon and violated Article 240, C. P.

The sheriff, under the writ, seized the entire stock of merchandise sold as above stated which plaintiff had bought as just .stated, for the sum of two thousand three hundred and twenty-four 78-100 dollars, consisting of clothing, hardware and other property, to collect his claim for two hundred dollars and eight cents. The sheriff was-notified that plaintiff claimed as her own, the property which he was. about to seize.

After seizure, plaintiff sued for wrongful seizure of property,, claimed the property and obtained an injunction against the seizure.

Other creditors for small amounts about the same time also sued out attachments. These attachments were enjoined. The suit was-directed against all the defendants (plaintiffs in the attachment writs). The latter excepted on the grounds of misjoinder of parties. The District Oourt sustained the exception, and dismissed the injunction.

After the dismissal, she (plaintiff) sued out an injunction against each of the seizing creditors, including the present defendant, who is sued separately from the other attaching creditors.

P. W. Appleby is the half brother of F. Appleby, husband of Mrs. Oallie Appleby, the plaintiff. The latter is separate in property from her husband. In the transaction between the two brothers it appears that the husband of plaintiff, as well as plaintiff, became the debtors of their vendors. This indebtedness, they claim, was the consideration of the transfer made to the plaintiff.

As relates to delivery, the goods were left in the store previously occupied by the vendor, the same clerk remained.

P. W. Appleby’s name and sign were on the store the day of the-seizure.

On the trial of the suit before a jury the verdict and judgment of the court went against plaintiff.

From this judgment she appeals.

The contract whereby the vendor sought to sell the contents of the-store to plaintiff was not a sale. We are concerned in deciding whether there was a sale solely with the price needful to constitute a contract of sale. No one denies that under our law it is settled that there could be no sale without a price certain: nam nulla emptio sine pretio.

We have not succeeded in finding a price certain.

We have seen that the vendor conveyed all his-property. In one of the deeds he sought by its terms to stipulate for pro-rata division of the price among all the creditors, but in the other three deeds that he executed about the same time as vendor, no such attempt was made.

The sales were for cash on the face of the papers and creditors were not bound to consider them as having been made for other than cash.-

Plaintiff cannot sustain the position that she was hound under the ■terms and conditions of the sale to-make a pro-rata division of the price, and that, in consequence, she was indeted for the whole amount to the extent needful to pay the pro-rata to the other creditors.

She was not hound at all in this respect, for three of the sales were for cash and these three deeds are silent about division of the price.

With reference to the sale in which there was a stipulation sought to be imposed on vendee, it is sufficient to say that the debtor made in-

■ solvent by the different conveyances, had no right in law to restrict to a pro-rata division only part of the property.

He, the creditor, was, at least, entitled to a percentage of the whole property in part payment of his claim.

Moreover, if we were to consider the sale of the merchandise alone in our judgment the condition stipulated that the vendee should make pro-rata distribution of the price was in the nature of a condition pre-

■ cedent to the sale. The amount was to be determined upon and then paid prior to a complete sale. The property, as we take it, did not become plaintiff’s under the condition imposed upon her, prior to payment. In this view it was not an executed contract, but it was at most, solely executory. Laurent, Vol. 24, Sec, 74.

A question similar was considered in Prude vs. Morris & Lucius, 38th Ann. 767. Should the transaction be viewed as a dation en paie-

■ merit instead of a sale, the conclusion, in our judgment, should be the •same. The law is clear enough. No conveyance shall be made by the debtor to “give an unfair preference to some of the creditors.” C. P. 240.

The insolvent debtor is not at liberty to select one or more of his creditors and convey to them out of the ordinary course of business, ■property which is the common pledge of the creditors. C. 0. 2658.

But the learned counsel representing plaintiff, with great force insists that there is no evidence of record that the sale of the stock of merchandise which was enjoined in this writ was made to defraud any of the creditors of the vendor or to give plaintiff an undue and unjust preference. We, in deciding the point presented, are-not dealing with the sale of the stock of merchandise exclusively. We must consider all the deeds which resulted in a complete conveyance by debtor of all his property to the plaintiff. The debtor may no1 have intended to ■give an unfair preference to the plaintiff creditor, and both vendor •and vendee may have had in contemplation the payment of the defendant. Put no promise to pay, or the least evidence of the intention to pay, was reduced to writing in the deeds conveying the real estate and placed of record.

The state of facts appearing of record is controlling and not the unknown intention of the parties.

Lord Coke advises as follows:' “Reader, when any gift shall be made to you in satisfaction of a debt, by one who is indebted to others-also, let it be made in a public manner and before the neighbors, and-not in private.” From Benjamin on Sales, section 365. (Heading Section IV, Fraud on Creditors’ Bills of Sale.)

This court has said the insolvent is not free to give in payment to-one creditor to the prejudice of another. Queyrouse & Bois vs. Thibodeaux, 30 An. 1116.

The effect, whether considered as an intended sale, or a dation en paiment, was to hinder or delay the creditors of the plaintiff in a manner forbidden by article of the Code of Practice, already cited. 1

In the application of the article, the question for the jury of the-vicinity was whether the transaction was bona fide, or to hinder and delay creditors. The jury found the latter and we are not inclined to ■ differ with them in so far as the question was one of fact. As relates to delivery, the question is not free from difficulty. We have before noted the facts regarding the asserted delivery. They do not show that delivery which is required in a dation en paiement. The decision of this court has emphasized the necessity of actual delivery in order that the transferee may hold the property. Queyrouze & Bois vs. Thibodeaux, 30 An. 1114.

Under the facts as proven, delivery was not shown as it should have been. The plaintiff has not established when she went into possession and control of the property and business of the store. Beyond the notice that she claimed the goods at the date of the seizure, her possession and control of the property and business of the store are not, in our view, proven.

In any point of view no damages can, in our judgment, be allowed, nor should the writ of attachment be dissolved. The debtor conveyed away all his property and would have left the creditors without recourse, save, at most, to the extent of a percentage or pro rata division of the proceeds of one of the sales; i. e., price of the merchandize of his store; two thousand three hundred and twenty-four-78-100 dollars. The indebtedness of the vendor was about three times - .that amount. The sales were not made in due course of business, and, in our view, violated the provision of the Code of Practice regarding preference which debtor should not give.’

We have not discovered error in the verdict found, or in the judgment of the court. They are approved, and the judgment of the District Court is affirmed.


text:
    No. 12,974.
    Equitable Securities Co. vs. Joseph Block; Mrs. Josephine Robin, Third Opponent.
    Syllabus.
    The asserted mortgage of the wife was cancelled twice on separate rules filed, and served upon all parties concerned.-
    The court had jurisdiction over the subject matter, and passed upon questions at issue. Whether the court’s decisions on these rules were erroneous or correct, do not present grounds enough for collateral attacks of the proceedings.
    The third opponent cannot treat the judgments ordering cancellation of the mortgage as absolute nullities, and recover the proceeds of the sale of the property on which she claims she has a mortgage, (by way of a third opposition).
    Even on a confession of a married woman (if there be anything in the nature of consent in these cancellations), a direct action must be brought to annul a judgment. Bell vs. I’rank, 23rd Ann. 599.
    ON APPEAL-from the Eleventh Judicial District Court for the Parish of St. Landry. Dupre, J.

      Farrar, Jonas, Krutischnitt & Gurley, and Kenneth Baillio for Plaintiff and Appellee.

      E. North Gullom for Third Opponent and Appellant.
    Argued and submitted February 7, 1899.
    Opinion handed down February 20, 1899.
   The opinion of the court was delivered by

Breaux, J.

This was a third opposition by a married wonian who claims a mortgage superior in rank to that of the seizing creditor.

The facts, as relates to the mortgage right and its foreclosure by the plaintiff, are that it sued out executory process against Joseph Block, and seized his plantation in the parish of St. Landry, and in -due course of proceedings it was adjudicated to it for the price of .nine thousand nine hundred and five dollars.

The following is a recital of the right claimed by plaintiff:

Lehman, Abraham & Co., judgment creditors of Ludger and Lueien Xastrapes, owners of the property, had their judgment executed and the property sold. Vincent Boagni was the adjudicatee at the sale.

As the certificate of the recorder of mortgages, which was read to the public at the sheriff’s sale, made known that there was of record, •a statement of a general mortgage, bearing on all properties of Ludger .and Lueien Lastrapes, in favor of Josephine Robin, his wife, resulting from inscription of a receipt purporting to have been signed by Lastrapes for money advanced to his wife by her father and mother; Boagni, the buyer, deposited the amount due to the seizing creditors, Lehman, Abraham & Go., in the hands of the sheriff, and filed proceedings against the sheriff, against the recorder of mortgages, and .against Josephine Robin, wife of Lastrapes, to regulate the distribution of the proceeds of the sale, and to bring about a cancellation of all mortgages on the books of the recorder of mortgages.

Due notice of the application to cancel the mortgage was given to Mrs. Robin and her husband, Lastrapes.

For reasons stated in the judgment, the court decreed the cancellation of the mortgage, evidenced it was claimed by a receipt under private signature, in which Mrs. Robin’s husband acknowledged to have received from her father and her mother, living at the time, the sum of six thousand dollars on account, as an advance of the portion she was to receive at their death.

The court in the judgment authorized the sheriff to pay the proceeds of the sale to the seizing creditors, Lehman, Abraham & Go.

Sometime afterward, Vincent Boagni sold the property he had bought at this sale to Joseph Block, and on the same day, the vendee of Boagni, Block, sold it to Ludger, Francois and Gabriel Lastrapes for the sum of seventeen thousand eight hundred and ninety-seven dollars and forty cents. Ludger bought one-half, and the others one-fourth each of the property.

About two years after their purchase, they retroceded the property -to Block, their vendor. They declared in the deed of retrocession, that they had paid no portion of the price, and that they retroceded, the property on condition of a return of their notes which repre.sented the price.

After this íetrocession, Block brought suit, setting forth in his: petition that the retrocession operated a resolution of the sale, and that, consequently, all mortgages acquired against the Lastrapes, hisvendees, during their ownership, were cancelled and extinguished. He mentioned in his petition, among others, the claim of Mrs. Josephine Eobin, wife of • Lastrapes, for the amount of six thousand dollars, which had been previously cancelled in the suit of Boagni against Duson, sheriff, to which we'have already referred. Judgment upon his petition was rendered, cancelling and erasing all the mortgages described in this petition. It is in place to state here that Mrs, Eobin obtained, in 1892, a judgment of separation of property from her husband; a fi fa, issued, and was returned nulla bona; that the judgment was rendered for the amount paid by her father to her husband; i. e., the sum of six thousand dollars, as evidenced by a receipt recorded in the office of the recorder in 1871, at which time the father and mother of Mrs. Eobin were alive.

In opposition to plaintiff’s claim, as just stated, opponents pleaded' that her paraphernal funds were secured by a mortgage which primed plaintiff’s.

To this intervention and third opposition, plaintiff filed an exception of no cause of action. Intervenor and opponent prayed to amend her petition so as to cite Vincent Boagni to show cause why the judgment rendered in 1890 should not be cancelled.

The exception was referred to the merits. The amendment was not allowed.

The answer of plaintiff to the intervention admits that intervenor and third opponent obtained a judgment against her husband, and sought to have it executed, and that as she alleges she did have the receipt inscribed; but plaintiff avers that the registry of the receipt and the mortgage claimed by the intervenor were cancelled in the first proceedings for cancellation, in ease of Vincent Boagni vs. C. C. Duson, Sheriff, No. 13,553, to which we have referred, in which plaintiff avers the wife was authorized to stand in judgment.

Plaintiff sets forth, aleo, that after the cancellation and annullment of her mortgage in accordance with the judgment rendered on the-first application to cancel her mortgage, Mrs. Eobin had a second inscription of her mortgage made, which was also cancelled in the suit above referred to, of J oseph Block vs. 0. M. Thompson, after due citation of all parties concerned, and that in this suit Mrs. Robin duly authorized, filed an answer, in which she averred that she had no objection to the cancellation of the mortgage, as prayed for by plaintiff, being satisfied that the mortgage she now claims did not bear on the property seized by plaintiff in the case before us for decision.

Plaintiff averred that these judgments were final, and could not be collaterally attacked in the proceedings by intervention and third opposition; that Mrs. Robin’s answer was a judicial admission that legally concluded her demands; that at the date of_ registry of plaintiff’s mortgage, intervenor had no recorded claim , on the property.

From a judgment dismissing her demand, Mrs. Robin appeals. The mortgage of the wife to secure the payment of her separate rights, is well defined, and whenever it is first in rank, and unaffected by any proceedings, it must, in law, be recognized and given effect, but if she has consented to the cancellation and erasures of her mortgage, or has been cast in a suit which resulted in the cancellation and erasure of her mortgage, she is bound by the rules of practice applying in such cases. The remedies which the law gives must be kept distinct. The ordinary mortgagee, whose mortgage is twice cancelled, in accordance with a decree of a competent court, is left without-right to ignore the cancellation and claim as third opponent.

As relates to the proceeds of the sale of the property on which her mortgage was extant prior to the cancellation, Mrs. Robin is not, under the law, permitted to recover them in a third opposition.

She is precluded from asserting any right she may have collaterally, and by third opposition; she must bring a direct action to avoid the judgment of cancellation. The truth of the judgment ordering the cancellation can not be collaterally questioned. .

Counsel seeks to avoid the difficulty by urging that the judgment ordering the cancellation was null ab initio, and requires no annulling action.

There is here a petitio principii. Of course, if the position assumed, that the judgment is an absolute nullity, were correct in law, its non effects would follow.

This leads us to the inquiry: Is it an absolute nullity? Should, we, in these proceedings, deny it all validity?

The court had jurisdiction to decree a cancellation and erasure. The question was considered. Whether it was decided correctly or incorrectly, it is not for us to determine in this case, and not contradictorily with the parties in whose interest the cancellation was made.

'Such judgments are considered invulnerable against collateral . attacks.

The third opponent sets forth a number of grounds to sustain her • contention that the judgment is an absolute nullity. Such as, that .the consent of the wife to a cancellation of the mortgage renders the judgment based upon the consent an absolute nullity.

This court has decided in Bell vs. Francke & Danneel, 23 An. 599, that where the wife is separated in property from her husband, “if a judgment be so illegal as to be a nullity, resort should be had to an action of nullity and not an injunction.”

Judge Martin, as the organ of the court, in Cook vs. State, 16 La. 288, said:

'“And if the judgment is so illegal that it ought to be set aside by an •action of nullity, such an action ought to have been brought, and may still be instituted.”

We think the principle laid down in those decisions, applies here.

We think that the orderly conduct of judicial proceedings, as well as the public interest, requires that we adhere to the rule cf the Code of Practice and of jurisprudence.

Tn another case, this court said:

“Daily experience teaches us that justice can not be administered •unless the different remedies which the law gives are kept distinct from each other.” Jones vs. Lawrence, 4 An. 280.

Moreover the property had passed out of the possession and owner- ■ ship of her debtor. Block was, as to this claim, a third person. Her executory title, if she had one, would be against the third possessor, ■and not personally against the seizing creditor to compel him to pay ’■from the proceeds of the sale under seizure. Block received only ,such title as the seizing creditor had acquired.

Whatever mortgage claim Mrs. Robin may have, remained on the property; her claim was not transferred to the proceeds.

The law and the evidence being for plaintiff, and against defendants, it is ordered, adjudged and decreed that the judgment appealed from is affirmed.


text:
    No. 12,938.
    D. E. Brown, Jr. vs. George Washington; Jacobs & Co. Third Opponents. In re D. E. Brown, Jr., applying for certiorari or writ of review to the Court of Appeal, First Circuit, State of Louisiana; and for a writ of prohibition to the Honorable J. T. Watkins, Judge of the District Court for the Parish of Bienville, and to the opponents in the same case.
    Syllabus.
    The claim of the third opponent was not liquidated, and he was prevented by its amount from going before a justice of the peace court to assert the claim and the privilege by which it was secured against another creditor, who was having judgment rendered in his favor by a justice of the peace court, executed to satisfy the privilege recognized by the judgment on the property to which oppenent also claimed a privilege.
    .Held : That the third opponent can compel his adversary to come into the District Court to litigate his right to a privilege.

      B. A. Bennolds for Relator.
    Respondent Judges for themselves.
    Submitted on briefs November 21, 1898.
    Opinion handed down January 23, 1899.
    Rehearing refused February 20, 1899.
   Watkins, J., dissenting, handed down a separate opinion.

The opinion of the court was delivered by

Breaux, J.

Relator Brown, under his judgment, caused to be seized in the justice of the peace court the products of the defendant’s, (Washington) farm, of the year 1897, valued at more than one hundred dollars.

The third opposition of J. B. Jacobs to the seizure was filed in the District Court against Brown and Brice, constables, setting forth, that Washington was indebted to them in the sum of one hundred and •fifty-four dollars for farming supplies furnished to him in 1897, and that the farm products seized were subject to the-privilege accorded to the furnisher of supplies.

They prayed to have their privilege recognized, and to be paid, in. preference, from the proceeds of the sale.

An order was issued to the constable to retain the funds subject to the further order of the court.

Plaintiff, Brown, relator here, filed a plea to the jurisdiction, alleging that Jacobs & Co.’s'suit was for the distribution of funds, in possession of the constable, collected on an execution issued by the justice of the peace court, and for the recognition of a privilege.

That the District Court had no jurisdiction to pass upon the issue and direct the manner of distributing funds realized in that court.

The plea of the jurisdiction was sustained, and the third opposition dismissed for a want of jurisdiction ratione maieriae. On appeal to the Court of Appeals, the judgment was reversed, and Brown’s plea to the jurisdiction was overruled.

The case was remanded to the District Court to be there heard and decided.

The relator also alleges, that after the filing of the third opposition, about March, 1898, the third opponents, J. B. Jacobs & Co., had dissolved and transferred their assets to M. Jacobs, and that in consequence, the parties really in interest were not before the court, as M. Jacob, transferree, had not been made a party.

Returning to the first and serious question involved, the jurisdiction vel non of the District Court, we are confronted in the first place-with the article of the C. P. 397, and a decision of this court in State ex rel. McLeod vs. Potts, Judge, 50 Ann. 109.

With reference to the first proposition that the opposition must be made before the court in which the seizure was made under C. P.,. 397, we can only say that, in an early ease, this court held that from the necessity of things, one claiming a privilege to secure the payment of an amount could compel his adversary to come into a higher-court to litigate his claim — “otherwise,” said the court, “our jurisprudence would present the absurdity of a wrong without a remedy, or a denial of justice in a matter clearly cognizable before our courts.” Terry vs. Terry, 10 La. 78; Amato et als. vs. Faniann & Cahn, 47 An. 973.

A similar question regarding jurisdiction arose in another case to which our attention is invited.

Shiff & Co. vs. Carprette & Quirk, 14 An. 813, in which the court ■affirmed the decision cited supra,. and held that the creditor, in .an amount exceeding the jurisdiction of the justice of the peace court, could protect himself by a suit in the District Court, compelling the creditor who had obtained a judgment and a recognition of a privilege in the justice court, and had had the property seized, to appear in the District Court to sustain his claim. Hagan vs. Hart, 6 Rob. 427; State ex rel Osborn vs. Judge, 35 An. 539.

As to the privilege claimed, it is obvious that that court can have no jurisdiction in so far as it conflicts with a privilege recognized in ■another court for an amount exceeding its jurisdiction.

The District Court has jurisdiction to determine as to superiority •of privilege and to distribute the fund.

In that court the creditor who had obtained a judgment before the justice of the peace court may have his privilege recognized.

Different it would be before a Justice of the Peace Court as relates' to the creditor with an unliquidated claim in amount of more than one hundred dollars.

He would have to stand by and let the property seized he sold, without the possibility of obtaining before the justice of the peace court, a judgment recognizing his privilege on the property in the hands of the constable, under seizure.

This court has, sometime since, determined, in substance, that the article of the Code of Practice here cited, should not be so construed as to impair the constitutional right to a hearing on a claim before a court of competent jurisdiction.

We are satisfied that the decisions just cited.have properly settled the question as between a creditor with an unliquidated claim, and one who has obtained a judgment before a justice of the peace court, and that the jurisprudence in this respect should continue unchanged.

The relator, with confidence, cites the case of McLeod vs. Potts, Judge, 50 Ann. 109.

The .facts are not exactly similar to the facts of the case now before us for decision.

In the cited case, the third opponent filed his opposition after he had obtained a judgment for the amount of his claim, and his privilege for its amount had been recognized.

We said in that case, “as matter of fact, the debt and privilege of third opponent had been previously liquidated and established by a’ final judgment in his court; and that in disregard of his rights the-relator had caused same to be seized under a /¿. fa. issued out in the-magistrate court.”

The right of a third opponent to g'o into justice of the peace court (on a judgment decreeing that there was a privilege) to assert the priority in rank of his privilege was declared to exist.

Here the claim had not been liquidated, and the justice of the peace court did not have the jurisdiction to pass upon its validity at all.

We are dealing exclusively with the case of a creditor whose claims-were unliquidated, and not with questions involved between the creditors with judgments recognizing privileges.

That- presents a question different from the question decided in McLeod vs. Judge.

It is not imperative to pass upon that question at this time.

It will be time enough to give it further consideration in a case involving similar facts.

The second ground urged by the relator is not before us for decision, as we do not find that the asserted facts are sustained by any evidence of record.

It is true that.tbe relator alleged that the firm of Jacobs & Co. had' dissolved and transferred their assets to M. Jacobs, and that no-proper parties had been made to the Court of Appeals.

This is not admitted by respondent in the record, nor is there any evidence of record (of which it would be proper for us to taire notice)' showing a transfer.

For reasons assigned, it is ordered, adjudged and decreed, that the relator’s demand be rejected; the restraining order be set aside at his-cost.


author: Blanchard, J.

text:
    No. 12,977.

    Charles H. Willett vs. M. D. Andrews, Et Als.
    Syllabus.
    1. In petitory action plaintiff must recover on the strength of his own titter not on the weakness of his adversary’s.

      2. If tbe case fails on tbe weakness and insufficiency of bis showing title, it ought to end there and then, and consideration of tbe title presented by defendant, and of tbe special defenses urged, becomes unnecessary.
    3. A son claiming inheritance from father alleged to be dead, must prove bis death, or make out a ease from which death may be legally presumed, else he fails on the issue raised as to his acquisition by inheritance.
    4. The death of an absentee who is less than one hundred years old, is not to be presumed.
    ON APPEAL from the Fourth Judicial District Court for the Parish of Grant. Machen, J.

      'Robert P. Hunter for Plaintiff and Appellant.

      H. H. White and W. Q. Roberts for Defendants and Appellees:
    Argued and submitted December 23, 1898.
    Opinion handed down February 20, 1899.
   The opinion of the court was delivered by

Blanchard, J.

This is a petitory action. Plaintiff sues to be declared the owner of 161.63 acres of land on Big Creek in the parish-of Grant. A part of the town of Pollock is situated on the land, and' on a tract immediately adjoining is located an extensive saw milling-plant, giving employment to hundreds of people and being the seat of one of the largest lumber manufacturing industries in the State. It is as the result of the location of the mill at this point that the town of Pollock has sprung into existence.

In the olden time, before the building of the railroad on the line of which the mill is established, and before Pollock became a town,, the land in controversy had very little market value. It was of the-character known as “long-leaf” pine lands, with fine timber upon invaluable if accessible to a mill, almost valueless if not.

In consequence of a part of the town being upon it, the land is-alleged and shown to be now worth several thousand dollars, whereas in the former time there is testimony to show it was once traded for a-pistol, and on another accasion for a pony.

The enhancement of its value, while a source of profit to its holders, is, it would seem, the origin likewise of something in the nature of trial and tribulation, as this suit demonstrates.

Plaintiffs case is that he purchased the land from Elias 33. Parker ■on the 10th of April, 1893; that some errors in this act of sale were, later, in the same year, duly corrected by another writing executed .between the parties; that Elias 33. Parker inherited the land from his father, Peter D. Parker, who is alleged to be deceased and of whom, it is averred, Elias was the sole and only heir; that Peter D. Parker inherited it from his father, Levi 33. Parker, deceased, whose sole and ■only heir he is averred to have been; and that Levi 33. Parker entered the land from the government of the United States and became the patentee thereof.

Due registry and inscription of all these muniments of title is alleged.

Certain of defendants, to-wit: — Malvina Dawden, Wiley Walker, J. Emmet Walker, James B. Wilmot, Thomas J. Walker, T. R. McDowell, B. Marras, James M. Rucker, John II McNeely, Arthur ■Guinn and James Bennett, appeared in the case and by answer, after ■denying plaintiffs pretensions, set up title in themselves as follows:

That Levi B. Parker, deceased, entered the land from the United States government in 1860; that patent issued to him in 1861; that after the death of Levi B. Parker, his surviving widow, Sarah Parker, and his son, Peter D. Parker, sold the land about the year 1862 to Howard McKnight; that McKnight, on January 22, 1880, sold it to Mrs. Malvina Riley (now Dawden); that an error of description in this act of sale was afterwards corrected; that J. II. McNeely acquired a portion of the land on August 9, 1890, at sheriffs sale, in the suit of G. W. Bolton vs. Uriah Riley, who was the former husband of Mrs. Malvina Riley (now Dawden) ; and that, later, to-wit: — on April 30, 3891, the said McNeely acquired from the then Mrs. Uriah Riley a certain interest in the land which is described.

After this sale from Mrs. Riley (now Dawden) to McNeely, the latter sold part of his holding to certain of the defendants herein, to-wit: — J. B„ Wilmot, and Wiley Walker, and Mrs. Riley sold to the other defendants, or to those from whom they acquired their holdings.

These defendants averred possession through themselves and the authors of their titles for more than thirty years, and pleaded the prescriptions of ten and thirty years.

Certain of defendants who were cited, to-wit: — Dan White, Thomas Shafer, M. D. Andrews, Sim Thomas, John W. McClure, Dan Mead, ■Oscar Hammock and John Williams, made no appearance and filed no answer.

The case went to trial as to them on default duly entered.

The judgment of the court a qua rejected plaintiffs demand outright as to those defendants who had set up title, and rejected it as in case of non-suit as to those who, while cited, had filed no appearance and set up no title. In other words, plaintiffs title as presented was decreed deficient, and that set up by certain of the defendants sufficient. The pleas of prescription were not passed upon.

Plaintiff appeals.

If a plaintiff in a petitory action succeeds, it must be upon the strength of his own title, not upon the weakness of his adversary’s.

Has the plaintiff herein made out such a showing of ownership as entitles him to recover, unless defendant’s title prove the stronger and better ?

We do not think he has.

That part of his case relating to his vendor Elias B. Parker’s acquisition of the land sued for by inheritance from his father, Peter D. Parker, fails of proof.

Peter D. Parker’s death is not shown.

Not only is it not shown, but no sufficient facts and circumstances .are exhibited warranting even the presumption of his death.

But, if dead, it is by no means certain that he, Peter D. Parker, was at the time of his death the sole surviving heir of Levi B. Parker, his predeceased father.

Levi B. Parker had, in 1860, acquired the land by entry, followed, in 1861, by patent, from the United States.

He took possession, made some improvements and lived upon it with his family until 1863 or 1864, when he removed to Concordia Parish, opposite Natchez, Mississippi, taking his family with him. He and three of his children died there on Lake Concordia in 1864, and another son appears to have died about that time in Natchez. This left, surviving, his widow, Sinah Parker, a son, Peter D. Parker, then about 22 years of age, another son, Marr Parker, and a daughter, Elmira, then 10 or 12 years of age.

These four returned to Big Creek, near their old home, where the ■son, Marr Parker, died.

The mother, with Peter D. Parker, and the girl, Elmira, then, about the year 1865, removed to the State of Texas.

Before the family removed to Concordia parish, Peter D. Parker, then a youth of about 20 years, contracted marriage with Mary Blackman, a girl living in the same neighborhood, and the couple lived together as man and wife from the date of their marriage, May 14th, 1862, until October, 1863. About the latter date the husband seems to have left her permanently.

Considering herself abandoned, hearing nothing from her husband and believing him to be dead, the wife, a number of years later, contracted a second marriage with a man named Cooper.

She still survives and was a witness in the case.

After Peter D. Parker abandoned his wife in October, 1863, a son was born to her in January, 1864. This son is the Elias B. Parker from whom plaintiff claims to have derived title.

When Peter D. Parker left his wife in 1863, he is supposed to have gone with his father and the family to Concordia, though the wife, in her testimony, speaks in one place of his having gone off to the war, and, in another, of his having “just went off to the Yankees and left me.”

But the evidence otherwise establishes that it was about this time Levi B. Parker removed to Concordia, and it is shown that the son, Peter D. Parker, went along with the family.

There is nothing to show the wife ever saw Peter D. Parker after he left her in October, 1863, though he returned to the same neighborhood from Concordia parish and remained there some little time before emigrating, with his mother and sister, to Texas.

The record discloses nothing of a positive character concerning the Parkers after they left for Texas. What became of them is not known. Peter D. Parker, at the time of the emigration, was not over 23 years of age, and his sister Elmira not over 12 years. There is nothing to indicate the age of the mother, Mrs. Sarah Parker.

At the time this case was decided in the court below, June, 1898, thirty-three years had elapsed since Peter D. Parker removed to Texas.

But adding these to the 23 years of his age when he left, would show him, if living, to be now only 56 years old, an age at which death, as the district judge properly held, could not be presumed under any ordinary circumstances.

A similar calculation shows his sister, Elmira, if living, to be only 45 years of age at this time, and the non-presumption of death applies with even more force as to her.

The land in controversy having been acquired by Levi B. Parker during his marriage with Sinak Parker, the same fell into the community of acquets and gains, so that as widow in community she owned an undivided one-half interest in the land.

This interest, it is claimed by defendants, she conveyed, as did Peter D. Parker his interest, to Howard McKnig'ht, just prior to their departure for Texas. As to this there is vigorous opposition on part of plaintiff. But leaving this phase of the controversy out of consideration for the time being, if Mrs.' Parker did not dispose of her interest to McKnig'ht, then she owned it at the time of her departure for Texas. There is no proof of her death, as there is none of the death of Peter D. Parker, or the daughter Elmira.

If Mrs. Parker, the mother, be still alive, she, of course, owns (unless the conveyance to McKnig'ht be held good) her half interest in the property, and no part of it has descended by inheritance to either Peter D. Parker, or his son Elias B. Parker.

If Peter D. Parker be alive, his inherited interest in the property (unless conveyed to McKnight or some other vendee) is still in himself, and his son Elias B. Parker has as yet no inherited interest in and to the same, and having none could convey none to plaintiff.

As to the daughter Elmira, if alive, she, of course, holds her interest. She was a minor when the conveyance to McKnig'ht is said to have been made, and did not join in the same.

If she is dead, when did she die; had she married and borne children before her death; if dead, did she die before or after her mother’s death, supposing the latter to be dead?

These are pertinent questions to ask and they arc not answered by the record. Mrs. Elizabeth McKnight, a reputable witness, widow of Howard McKnight, to whom it is claimed by defendants the Parkers sold the land before going to Texas, testifies that some six or eight years after they went to Texas her husband received a letter from a man claiming to be the husband of Elmira Parker, making enquiry about the land, its value, etc.

There is no sufficient proof warranting the court in holding any of these parties dead, and we must necessarily so hold before we could decree plaintiff entitled to recover, if he be otherwise entitled to recover, as to which we express no opinion, none being necessary to the ■determination of the case as presented, in the view we take of it.

Nothing beyond rumored reports of the death of Mrs. Sinah Parker, Peter D. and Elmira is disclosed by the evidence.

The wife of Peter D. Parker had heard these reports, and believing them, and justifying herself by the lapse of time and the non-appearance of her husband, and no information from him or concerning him, she married again. But this circumstance adds nothing to the weight of the rumors relative to his death. She simply “believed he was dead strong enough to marry again.” This is her language. She “took what she heard to be true and never heard anything to the contrary.”

There was one witness, Mrs. L. A. Bryan, who testified the family all had chronic diarrhoea when they left for Texas, and that the members of the family who had died at or near Natchez succumbed to that disease. But it by no means follows that because Mrs. Parker, her son Peter and her daughter Elmira were suffering from the ailment mentioned when they left for Texas, that they died of it. Mrs. Bryan testifies to reports she heard of the death of these parties after reaching Texas. But whence came these reports, how originated, through what channels disseminated, etc., she, as well as all other witnesses examined touching the fact of death, could say nothing.

A witness by the name of Cotton, the brother of Elias B. Parker’s mother, says he heard the reports relative to the death in Texas of Peter D. Parker. Further than this knew nothing whatever about his death.

Willett, the plaintiff, testifies to going himself to Texas; went into three or four counties; went “where they said he had gone (meaning Peter D. Parker) in Shelby county.”

Who “they” were who said this, he does not enlighten us.

Continuing he says: — “I went to the place where they said Peter Parker was and where they said he died. This was Cherokee county. This was in 1884. I did not find Peter Parker there. I saw a cousin, •or said to be a cousin, of his. I enquired for Peter Parker. He told me that Peter Parker had come in there and his mother along, I understood him to say, in 1864 or I860. He said they both died there. He told me that Peter Parker had told him the little girl had died before they got to Texas. The man’s name was Mitchell, a cousin on the mother’s side.”

The foregoing is all the testimony the record contains relative to the death of the three members of the Parker family who emigrated to Texas. From it we are asked to assume their deaths. To do so would be to give effect to rumors and reports, vague and uncertain, and to testimony purely hearsay.

The man Mitchell, the cousin in Texas, was not called as a witness,, nor was any effort made to take his testimony. If Peter D. Parker died in Cherokee county it would seem that some one might have been found there who could testify to his death positively.

Mitchell, the cousin, did not tell plaintiff he personally knew of the death of Parker, confining himself, merely, to saying he and his> mother had died out there.

How he knew this does not appear, and we can not supply it by conjecture.

In Martinez vs. Succession of Vives, 32 La. Ann. 305, it was held the death of an absentee who is less than one hundred years old is not to be presumed. It must be legally established. This doctrine is fully borne out by the authorities there cited.

We must hold the evidence fails to establish the death of these parties, and with this failure plaintiff’s ease falls.

It would appear that in “the sixties” two Peter Parkers figured in that section of the country now comprising the parishes of Grant and Catahoula — another besides the Peter D. Parker whose life we have-been tracing.

This other one seems to have lived and died in Catahoula parish. That he is dead is fully established by the testimony. He appears to have developed too great a propensity for “gathering where he had not sown,” and on this account, he was, soon thereafter, called upon to make his exit by the hempen process, from this terrestrial life. He was hanged for horse-stealing, just after the close of the war, on Funny Louis Creek in Catahoula parish. “Judge Lynch” seems to-have issued the warrant. ,

But beyond doubt he was not the Peter D. Parker who married Mary Blackman in 1862, and whose son Elias B. Parker, plaintiff's vendor, is.

In Rowson vs. Barbe, a petitory action very recently decided and not yet reported, it was said “plaintiffs advancing to the attack on defendant’s possession as owner find themselves repulsed and beaten back at the threshhold by the weakness of their own line. They retire-discomfited without having developed the weakness, if any, of defendant’s position. They must show before the possessor can be put on his defense, a legal title to the premises in dispute. In this view of the case it is unnecessary to consider the various objections urged' against defendant’s showing of title, and equally unnecessary to review the several grounds, including prescription, urged in support of her title.”

It was then held that plaintiffs having failed because of the weakness and insufficiency of the title they presented, it ended the case, and it was error for the trial judge to go further and pass judgment rejecting the defense of prescription set up in the answer — this on the ground'that the case fell before consideration of the defense began.

The doctrine and ruling of the court in that ease are approved and as far as applicable will be permitted to govern the instant case.

The District J udge properly held the ease to be against the plaintiff on the issue of the inheritance of the property by his vendor from Peter D. Parker; that the latter not having been shown to be dead, it could not be determined that the son, Elias B. Parker, had acquired anything from him. by inheritance.

The case should have ended there and then by a judgment of non-suit against plaintiff, and without passing upon the special defenses set up in defendants’ answer.

Indeed, while defendants, on whose behalf answer was filed, set up title in themselves and invoked the law of prescription in support thereof, they did not pray for the judgment of the court on the title thus presented, nor on their plea of prescription. They merely asked rejection of plaintiff’s demand and for judgment for the value of improvements erected on the property, and for the taxes paid by them, in case of eviction.

It, therefore, becomes necessary to amend the judgment of the court a qua.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be so amended as to reject plaintiff’s demand, as in case of non-suit, as to all the defendants, and to dismiss his action with costs of the lower court.

It is further ordered, etc., that in other respects the aforesaid judgment be avoided and reversed, and that there be judgment of non-suit •on the remaining demands of defendants set up in their answer, in-eluding prescription, costs of appeal to be borne by those appellees in respect of whom the judgment is amended in part and reversed in part.


author: Nicholls, C. J.

text:
    No. 13,000.
    Mrs. Angele Coudroy, Widow, et al. vs. Ernest Pecot, et als.
    Syllabus.
    1. An order for an appeal suspensive or devolutive, returnable according to law, is returnable at tlie first return day for the parish after the order. The appeal under that particular order is abandoned if not perfected by that time. (Mortee vs. Edwards, 20th Ann. 236.)
    2. The filing of a transcript after an appeal has been abandoned is without effect, and appellee is entitled at any time to have the lapsing of the appeal declared.
    ON APPEAL from the Twenty-fourth Judicial District Court for the Parish of St. Mary. Allen, J.

      Walter J. Burke & Bro. for Plaintiff and Appellee.

      I). Oaffery & Son for Defendants and Appellants.
    Submitted on briefs January 13, 1899.
    Opinion handed down February 6, 1899.
    Rehearing refused March 7, 1899.
   The opinion of the court was delivered by

Nicholls, C. J.

Judgment was rendered in this ease by the District Court on the 30th of June, 1897, in favor of the plaintiff. On the same day, counsel for defendants, by motion, applied for and obtained an order of appeal, returnable to the Supreme Court according to law, the order being in the alternative for a suspensive or a devolutive appeal. In ease of a devolutive appeal the court fixed the appeal bond at fifty dollars; in ease of a suspensive appeal, it ordered bond to be given for the amount required by law.

No bond was furnished by the defendants until 22nd June, 189S, when an appeal bond for fifty dollars was furnished — the condition ef the bond reciting' that it was given under an order of the District. Court granting- defendants a devolutive appeal. The transcript in the case was filed in the Supremel Court on December 1st, 1898. No new order of appeal was asked for or granted, nor was there any application made for delay, or for an extension of the return day.

Appeals from the parish of St. Mary were returnable at that time on. the fourth Mondays- of March and November (Act 69, of 1894), and since under Act No. 76 of 1898, on the fourth Mondays of January, March, June and November.

Plaintiffs have moved to dismiss the appeal on the ground that when the bond was furnished and the transcript was lodged in the Supreme Court, the appeal had lapsed by abandonment — that no notice had ever been served upon him that the appeal would be or was being prosecuted — and he had only learned casually of the filing of the transcript — that he had never consented to an extension of time.

We are of the opinion that the appeal should be dismissed. Defendants having failed to furnish bond either for a devolutive or a suspensive appeal under the order of appeal granted 30th June, 1897, within the return day, and having failed to obtain an extension of the return day, the effect of that particular order terminated. If they were entitled to an appeal it would be an appeal under a new order of appeal and bond given under it, and after proper citation to appellees. (Mortee vs. Edwards, 20th Ann. 236.)

Appellant maintains that, assuming the grounds urged for dismissal to have been well founded, they could only have been urged within three days from the filing of the transcript at any one of the return days for the parish of St. Mary during the year in which devolutive appeal could be taken.

If the appeal was abandoned under the order of appeal as taken (as we hold it was) the effect was self-acting, needing no order of court to make it operative. An order of court on that subject would be merely declaratory of an existing fact. The first return day having passed without the filing of the transcript, appellee was not called upon to be in court upon any subsequent return day for the parish, to ascertain whether the transcript would be filed, and if so, at what time. There would be no fixed period to which the three days rule-could be made to apply.

The appeal is dismissed.


author: Blanohard, J.

text:
    No. 13,067.
    State of Louisiana vs. Richard J. Devall.
    Syllabus.
    1. It is competent for constables to act for the sheriff, on his designation, is-executing the orders that official is directed to carry into effect. C. P. 765. ■
    2. And, in such case, they have authority to act throughout the extent o£ their' respective parishes. C. P. 1160; R. S. 638; 31 An. 189.
    3. Thus acting, they may legally summon tales jurors and are competent officers of the court to have in charge a jury in a criminal ease pending consideration of the verdict.
    4. Lodging jurors over-night in three communicating rooms, doors between-open, other doors locked, the officer in charge present in the rooms, no outside communication with the. jury, is not a separation in the legal sense vitiating the verdict.
    5. Besides citizens discharging important public functions, jurors are human • beings, entitled to have their wants, necessities, comfort and well-being consulted and provided for.
    ON APPEAL from the Fifteenth Judicial District Court for the-Parish of East Baton Rouge. Brunot, J. •

      M. J. Cunningham, Attorney General, and H. N. Sherburne, District Attorney, for Plaintiff' and Appellee.

      L. D. Beale and G. K. Favroi for Defendant, Appellant.
    Submitted on briefs February 11, 1899.
    Opinion handed down February 20, 1899.
   The opinion of the court was delivered by

Blanohard, J.

This was an indictment for murder, followed by &• conviction for manslaughter and a sentence of twenty years at hard-labor.

Defendant appeals.

The grounds for reversal, set forth in a bill of exceptions taken." • to the ruling of the trial judge denying a motion for a new trial, are:

1. That Y. M. Moran, who acted as deputy sheriff in summoning • the tales jurors, was not a sworn deputy sheriff of the court.

2. That the said Moran and A. A. Miller, who had charge of the - jury after the case was submitted to them, were not sworn officers of the court.

8. That there was a separation of the jury after submission of the case to them and before the verdict was returned.

The testimony adduced on trial of the motion is annexed to and made part of the bill of exceptions.

Moran and Miller were both duly elected, commissioned and qualified constables of the Parish of East Baton Rouge, and both had been ■ designated as deputy sheriffs and employed for some time in that capacity by the sheriff of the parish. It does not appear that the oath ■ of office as regular deputy sheriffs had been administered to them; ■ but it does appear that such oaths as special deputies at election pre■■cincts had been administered to them the preceding November.

In their capacity as constables of the parish it was competent for them to act for the sheriff in executing the orders that official was directed to carry into effect. C. P. 765.

Constables have authority to act throughout the extent of their respective parishes, and are empowered to execute all orders, decrees and judgments which judges and justices of the peace may direct to them. C. P. 1160; R. S. 633.

They may, in their official capacity, or with the sheriff’s delegated authority, act for the sheriff within the limits of the parishes in and for which they are elected as constables. State vs. Boitreaux, 31 La. Ann. 189.

Constable Moran, therefore, acting as deputy sheriff, was a competent officer of the court to summon the tales jurors in .this case, and he and Constable Miller, also acting as deputy sheriff, were competent ■officers to have the jury in charge pending their consideration of the verdict to be returned.

After a criminal case is submitted to the jury, they are to be kept together, under the charge of an officer, in such a way as to be secluded from all communication with other parties, until they have agreed on si verdict, or it appear that it is impossible for them to agree. Wharton Crim. Plead. & Prae. 8th Ed., Section 727.

In this statement of the law three essentials appear :

1. The jury to be kept together.

2. Under charge of an officer.

3. Secluded from all outside communication.

Were these essentials observed in the instant case ?

We find they were.

The jury was kept together. They were, over-night, locked in three communicating rooms — communicating with each other, and the doors between, open; other and outside doors locked. They were in charge of a sworn officer, a constable of the parish, who was acting as deputy sheriff and had been deputed by the sheriff to take and have them in charge, and who remained with them all the time. Where they were thus kept in the custody of the officer was a convenient place, and the testimony shows no outside influence reached them. Hence, it must be held, for the purposes of this trial, that they were .beyond the reach of outside influence.

The case of the State vs. Foster, 45 La. Ann. 1176, cited by defendant, is not in point. There the jury "did actually separate, and no officer was with either of the two separated sets of jurors during the night. The rooms occupied by the two sets, ten in one room, two in another, were not communicating, nor were the doors affording ingress and egress, to and from such rooms, locked.

Neither is State vs. Warren, 48 La. 828, in point. There four of the jurors were conducted out of the building by the sheriff, leaving the other eight in the jury room unattended by any officer in charge. And so with State vs. Costello, 11 La. Ann. 283, and the other authorities relied on by defendant. They are not apposite. There was actual, undoubted, undisputed separation of the jury in those cases and, properly, the verdicts were held vitiated.

We do not think lodging the jurors, in the instant case, in the three communicating rooms, doors between open, a separation of them in the legal seirse, vitiating this verdict. They had access to one another and were in easy reach and hearing all the time. It was a keeping of them, together in the purview of the law. Besides, citizens discharging important public functions, jurors are human beings, entitled to have their wants, necessities, comfort and well being consulted and provided for, and the recognition of this furnishes alike the reason and motive of the sheriff in providing the accommodations supplied by the three communicating rooms, with supper and breakfast at the restaurant below.

In the absence of any showing of communication with them by outside parties, we decline to hold that'what he did in this respect merits the judicial condemnation which would result from setting :aside this verdict because of it.

It is not a case justifying the presumption of misconduct and. abuse.

Judgment affirmed.