author: Beiímudez, C. J.

text:
    No. 8959.
    Succession of Theresa Baumgarden.
    Heirs of ngp coming to a succession concurrently with a minor, when there are no money legacies and no debts to ho paid, and when no one demands an administration and asks security, arc entitled to take the seisin from the executors and bo pub in possession of their share of the inheritance, conjointly with the minor for whom the law has accepted under benefit of inventory. When they aro icoognized and put in possession, the oxeen, tors must, render them and the minor an account of their administration within a reason • able time, to bo fixed by the court.
    The division of a District Court having jurisdiction over the succession of a wife, cannot order the delivery and exclusive possession, to her executors, of a box containing valúa, bles belonging equally to it and to the succession of the husband, whose heirs of ag* have been, by another division, recognized and pub in possession of their share of inheri* tanco in the same.
    Heirs of age who have collected, after being judicially recognized, rents belonging to the succession of their mother, will not be ordered to return the sanio and prohibited from further collections, although tho decree recognizing them was subsequently reversed on appeal, -whore tho com t passing upon the proceeding to return and to prohibit, rccog. nizes them and puts them iu possession of their share in tho same succession.
    APPEAL from tlie Civil District Court for the Parish of Orleans. Lci-mrus, J.

      W. JB. Koontg and T. Gilmore & Sons for the executors, Appellees.

      L. L. Levy and J. Ad. Lozier for the heirs, Appellants.
   The opinion of tho Court was delivered by

Beiímudez, C. J.

The heirs of age of Theresa Banmgarden appeal from four judgments rendered in the morinaría-. They sa.y that those judgments are erroneous and operate to their injury.

The judgments are:

1.One which directs the delivery to tho executors of their mother, of a tin box containing valuables belonging, in part, to the succession of N. A. Banmgarden, their father, whose heirs they are.

2.A second judgment which orders t-lieni to pay over to the executors tho rents, etc./collected by them as heirs of their mother, under a decree recognizing them as such, but subsequently reversed.

3.A third judgment forbidding them from collecting such rents in future.

4.A fourth.and last judgment, refusing to recognize and put them in possession of their mother’s succession.

I.

We think it is preferable to consider first, the questions presented by the last judgment.

It does not seem to be disputed, nor can it be, that the appellants are the three legitimate children of age of Mrs. Banmgarden, the fourth and last child being a minor, represented by one of her executors, as dative tutor.-

Tho judgment appealed from, rendered in tho petition of the heirs of age, recognizes them, contradictorily with the executors, as such • heirs, but rejects their demand to be put in possession, accordingly, of their mother’s succession.

The appellees have not asked an amendment of the first part of the judgment. In that respect, it must, therefore, remain undisturbed.

The appellants contend that they are entitled to be put in possession of their mother’s succession, to the extent of their interest therein, concurrently with their minor co-heir.

The executors resist tlieir demand on no definite, ground going to the merit and merely pray for judgment in their favor and against the plaintiff.

They do not aver the existence of any money legacies, or of debts, and do not ask that the heirs should advance the funds wherewith to discharge the same.

There being no formal issue on that question, it is possible that, strictly speaking, there may exist no necessity of passing upon the obligation of the heirs to give security, but as, under the tenor of certain articles of the code, it is possible that the. question should bo passed upon, we deem it is better that it be done.

The record shows that Mrs. Baumgarden left a will, by which she made two legacies of property which were delivered, and that the assets of her succession were inventoried and valued at $36,461. It does not appear that she was indebted, unless possibly for some $600, claimed by one of her executors; but, it is insisted that her estate, including that debt, has, since her death, become involved to the, extent of some $8000, as is shown by an exhibit found in the, transcript.

It makes no difference, as far as the executors are, concerned, whether the succession of Mrs. Baumgarden be, or not, indebted. It is a matter which in no way concerns the executors of the. deceased. Tt is of interest to her creditors, if any exist,- and to her heirs. No creditor is heard here to oppose the demand of the heirs for possession and no one can be allowed vicariously, in the absence of any plea filed for their benefit, to champion their rights. The, heirs of age have considered the condition of the succession and have determined, at their risk, that it was to their advantage to accept it unconditionally. They have done so and now ask to be put in possession.

The law, on this subject, is explicit.

The heirs, says the article of the code, 1671, can, any time, take the seizin from the testamentary executor, on offering him a sum sufficient to pay the, movable legacies and on complying with the requirements of Article 1012.”

That last named article reads :

“ In obtaining possession of the, effects of a succession, the heirs shall not be permitted, under any pretense whatsoever, to have an actual delivery of the property of any such succession, which may be in suit, or to receive any money of the succession, where there shall be claims thereon pending in Court, unless they previously give- bond with good and sufficient security, if the. plaintiffs’ in such suits require it, which surety shall be one-fourth over and above,-” etc.

It does not appear in tills case, that there is any property in suit, or money on which there is any claim pending in Court, of which the heirs of age aslc to be. put in possession; nor does it appear that anyone demands such security.

If it be true, as it is, that heirs cannot be put in possession where security is asked, without giving it, it is equally so, that they can be put in such possession without security, where none is demanded.

So much; therefore, for the question of obligation to furnish security.

The real contention seems to arise touching the right of the three heirs 'of age to be put in possession of their mother’s estate, there being a fourth heir, who is a minor and who cannot accept the succession unconditionally.

The law governing such a case is found in Article 1047, R. C. C., which is to the effect that:

“If there be several heirs to a succession some of whom have accepted unconditionally and others claim the benefit of the term for deliberating, the judge of the place * * * shall cause an inventory to be made *' * * and shall appoint an administrator to manage until partition of the same be made among the heirs.”

This article refers to heirs of age who have accepted and to those who claim time to deliberate and who may, after deliberation, accept, also, unconditionally.

It has been construed as authorizing the taking of possession jointly by heirs of age concurrently with minors. Soye vs. Price, 30 A., 93; and as justifying an administration where one of the heirs of age demands one and there is a minor, for whom the law accepts under benefit of inventory. Blake vs. Minors, Kearney and Lake, 30 A. 389.

It applies more particularly to cases in which there are heirs of age and a minor, where there is no necessity for an administration, where the' debts, if any, compared to the bulk of the estate, are of no significance and where the heirs of age, representing three-fourths of the estate, declare themselves to be ready and willing to furnish security.

The Code of Practice, Article 1003, declares that, in such cases, if, from the examination of the testimony produced, the judge discovers that the petitioners are entitled to the succession, he shall put them in possession of it, and shall direct the curator or executor to render a,n account within a reasonable time, etc.

If such was not the intent and meaning of the article, then heirs of age in successions in which there would be minor co-heirs, and in charge of executors, could never obtain possession of and enjoy their inheritance, unless by a suit in partition and the deplorable condition revealed by the record in this case, would be one of constant and irrepressible occurrence.

Such was not the object of the law. Heirs of age can own, possess and enjoy their inheritance in common with their minor co-heirs. It is only where they are unwilling any longer thus to own, possess and enjoy the same, that theyr must sue for and obtain a partition either in kind or by sale.

When the judgment recognizing the heirs of age of N. A. Baumgar-den was before us for review, 35 A. 127, we held that they could not dispossess the execittors before an inventory had been completed and a tutor qualified to the minor heir and thus avoid an administration, which we thought was necessary, as there were special legacies to be delivered. The inventory having been made, the bequests having-been executed, the tutor of the minor having qualified and there being-no debts, the functions of the executors are at an end. The prayer of the heirs which was, at the time, premature, can no longer be so considered.

After the heirs of age herein are recognized, there being no necessity for further administration and the law having- accepted the succession under benefit of inventory for the minor, (R. C. C. 177), the succession will have been wound up and the executors under the obligation of rendering an account to the heirs of age and to the tutor of the minor.

There is error in the judgment appealed from which, though it recognizes the heirs of age, declines to put them in possession.

II.

The next judgment, which will be now reviewed, is that which orders the delivery of the tin box and contents to the executors of Mrs. Baumgarden.

That box contains valuables for a large amount, such as vendor’s notes for $30,000 in capital, etc., which constitute a large portion of the assets of both the successions of N. A. Baumgarden and of Theresa Baumgarden, his wife.'

Those assets once formed part of the property which composed the community between the husband and the wife.

At the death of the former, his heirs on the one hand and his widow on the other, became, instantly, each seized and entitled as owners to one-half of "the sainé. If the ownership by the heirs was subordinate to the rights of the widow over it, as usufructuary for instance, it has been relieved from the same, the usufruct having- determined by the death of the usufructuary.

By giving tlie seizin of lier property to the executors appointed by bet will, Mrs. Baumgarden bad no right to extend it over property not belonging to her succession and the Court was powerless to do so.

Tt appears that, while the box containing those, effects was deposited in bank, subject to the order of the Court, the key of the box was left in the keeping and custody of a representative of the heirs of age. By the judgment rendered, the key was ordered to be delivered to the executors, with the box.

The exclusive possession of the box belonged to neither the executors, nor the heirs of age. It was a possession in common. Its character and extent could not be changed, as was attempted to be done.

The appellees have asked no amendment of the judgment. It must, therefore be reversed in its entirety, leaving matters in the condition in which they stood previous to its rendition.

IIT and IY.

The remaining two judgments may well be considered together, as they constitute one judicial act only and are, the one a corrollary of the other.

It appears that the heirs of Mrs. Theresa Baumgarden having had themselves recognized and put in possession of their interest in their mother’s succession, by an ex parte order, took upon themselves to collect and appropriate to themselves the rents and revenues of the estate in the proportion in which they thought themselves entitled to the same..

This judgment, recognizing them and putting them in possession, having been appealed, was reversed. It was prematurely rendered and had not been pronounced contradictorily with the executors. 35 A. 127.

Subsequently, under the assumption that the heirs of age had made those collections without authority and, considering that they had not been again judicially put in possession of their iuterest in their mother’s succession, the executors took proceedings to compel them to return the amounts they collected and to prohibit them from making further collections and there was judgment accordingly.

If it be true, that it was necessary that the heirs should have been legally put in possession, as a condition precedent to the exercise of their right of collection, it is no less true, that when they did so, they had some judicial authority in hand, to justify them and that, although it may be that there are some debts against their mother’s estate, they have collected moneys which, in reality, well belong to them.

The heir who purchases at the sale of property belonging to the succession in which he inherits, is authorized'to retain the price, until his portion has been definitively fixed. R. C. C. 1343.

Why then, should an heir who has, under apparent judicial authority from the competent court, collected moneys to which he will bo ultimately entitled, be condemned now to pay the same over to executors, to be by them returned to him shortly afterwards? We see no reason to justify such an order.

As we held that the heirs of age are entitled to be put in possession of their share in the succession of their mother, and that they will be considered as being in such possession when this judgment shall become final and executory, we do not feel authorized to forbid them from hereafter collecting the rents and revenues of the property composing the assets of the mother’s succession. They are already in possession of their share in their father’s succession. They will then be in possession of their interest in both estates.

Por those reasons:

It is ordered and decreed that the several judgments appealed from, namely: that, refusing to place the heirs of age in possession of their mother’s succession; that directing the delivery of the tin box and contents and .the key to the executors of Mrs. Baumgarden; that ordering the heirs of age to reimburse rents and moneys collected and prohibiting them from further collections, be and the same are hereby reversed.

.And, it is now ordered, adjudged and decreed that the petitioners be and they are hereby recognized as the legitimate heirs of their deceased mother, Mrs. Theresa Baumgarden, each to the extent of one undivided fourth thereof and that as such heirs and to that extent, they be and are hereby put in possession thereof.

And, it is further ordered and decreed that the executors of the deceased, Mrs. Theresa Baumgarden, do, in said capacity, render to said heirs and to the minor, Lilly, contradictorily with her undertutor, a true and correct account of their administration of the succession in their charge according to law, within thirty days after the judgment herein rendered shall have become final and executory.

It is further ordered and decreed that the proceedings for the delivery of the box and key and contents of said box to said executors and those to force the return of the moneys collected by the heirs of age and to prohibit them from further collections, be and the same are hereby dismissed, the whole, with costs in both courts.

Rehearing refused.


source: Caselaw Access Project

author: Poci-ié, J. Bermudez, C. J.

license: Public Domain

text:
    No. 8960.
    Succession of John Geddes.
    The rules relative to tlie time of payment of debts, delivery of legacies and the separation of patrimony find no application in cases of thoroughly solvent successions.
    The appellate court does not sit to revise the reasons assigned by the judge of the lower court in support of a judgment which is affirmed. It surely cannot do so where the reasons were “orally assigned,” and therefore do not come up with the transcript. This Court reviews and passes upon the correctness of the judgment appealed from. The reasons assigned by it for the affirmance of such judgment are to be taken as those justifying the judgment of the lower court. '
    "Where tlie lower court orders, without giving written reasons, the delivery to a surviving wife in community, of the legacies made to her by her deceased husband, of property once forming part of the community assets, aud this Court, affirming that judgment, decides that the bequests made consist of the half of the deceased in such property, tlie reasons of this Court must be deemed as those 'which wore or should have been given by the com t of first instance
    Rehearing refused.
    PPEAL from the Civil District Court for the Parish of Orleans. A Monroe, J.

      T. Gilnnore & Sons for the widow in community, Appellee.

      J. Ad. Boeier for the executors, Appellants.
   The opinion of the Court was delivered by

Poci-ié, J.

Tlie executors of the last will of John G-eddes have taken this appeal from a judgment ordering them to deliver to the widow of tlie deceased certain specified objects bequeathed to her by her husband in his will, which has been duly probated.

The defense which they urged against the widow’s demand is in substance : That her demand was premature and could not be entertained before a settlement of the community which had existed between the spouses, and before the expiration of the delay allowed by law to the executors for the payment of debts, to be preceded by a sale of the property for that purpose, if necessary.

The record shows that the property, which all belonged to the community, amounted to $147,910 84, and that the succession owed no debts beyond tlie expenses of the last illness and funeral charges, which have already been settled out of the cash assets of the succession. The legacies, to tlie widow consist of the dwelling-hoiise occupied by the two spouses, and of bonds, stock, etc. The other legacies contained in the will are moneyed bequests. The deceased left no issue of the marriage, and no forced heirs.

The mere statement of the foregoing facts appears to us a sufficient answer to the defense urged by the executors.

After a careful study and grave reflection on the subject, we are entirely at a loss to appreciate the strength of the position which they have assumed in their resistance to the just and legal demand of Mrs. G-eddes for the execution of the last will entrusted to them by the deceased.

We have followed the argument of their learned counsel, and have considered all the authorities which he quotes in support of the well known rule of succession law under which the widow can claim nothing from the community previous to a settlement of the same and to the payment of the debts, and under which it is settled that her interest in the community is merely residuary. But the issue presented herein cannot be affected by these principles, as invoked and applied by appellants.

In the present proceeding, the widow is not pressing any of her rights as surviving partner in community, but she simply seeks to enforce her rights as a legatee under the will.

As her legacies are specific objects, her claim thereto cannot be affected by the other legacies which are for money. The latter are subordinate to her claim and should be reduced if the assets of the succession should be insufficient to cover all the legacies. C. C. art. 1635.

Bxxt no such contingency is presented in this case, in which it appears that the executors have in hand funds left by' the testator, and since collected as revenues of the succession property, in an amount nearly sufficient to discharge all the moneyed legacies provided for in the will of the deceased.

Under our law, at the death of Geddes his widow became the absolute owner of one-half of all the property comprised in the inventory as belonging to the succession and community, subject only to the payment of community debts, if any existed. Tugwell vs. Tugwell, 32 A. 848; Glasscock vs. Clark, 33 A. 584.

She is therefore owner in her own right of surviving partner in community of one-half of all the property bequeathed to her in her husband’s will. Her ownership and seizin of that portion of the property result from the operation of law, and of her own will in accepting the community; and neither could be affected, increased or restricted by any testamentary dispositions of her husband.

Her demand in this proceeding is, therefore, for the delivery and possession of the other half of said property; of the only portion thereof which accrues to her under the effect of the will.

Under tlie circumstances of this succession, the resistance of the executors is unjustifiable and illegal, and is in direct opposition to the will of the testator, from whom they have received and accepted the solemn trust of executors.

We, therefore, find no error in the conclusions of our brother of the District Court.

Judgment affirmed.

On Application eor a Rehearing.

Bermudez, C. J.

The executors contend that the Court erred in not rejecting, as premature, the' demand of widow G-eddes for the delivery to her, by them, of the specific property bequeathed to her by her late husband.

The universal legatees complain that the judgment appealed from and which was affirmed, was not explained by this Court so as to leave no doubt as to its meaning.

I.

It is perfectly true, as a rule, that executors are prohibited from paying the debts, with some exceptions, until after three months from the opening of the succession and unless upon compliance with the forms of law. It is likewise so, that legacies can be satisfied only after payment of the debts and of contributions for the legitimate portion when there are forced heirs.

It is equally true that creditors have the right to sue for the separation of patrimony within three months from the acceptance of the heirs.

But, it is no less certain that those rules do not obtain in a case like the present one, where there are no debts, no forced heirs and where no separation of patrimony has been asked or can be asked by anyone.

If the petition of the widow, as legatee, asking to be put in possession of the bequests made to her by her husband, could have been assailed on the ground of prematurity, the objection has surely ceased to have any foundation to stand upon, by the lapse of time which has gone by since it was made, without any opposition on the part of any creditor or legatee. The judgment appealed from was rendered more than four months after the death of the testator and there was no suggestion made of any impediment thrown in the way of its execution by anyone claiming any adverse interest.

No just or plausible reason can be found on which to base the resistance of the executors.

II.

The District Judge decreed that the executors deliver to widow G-ed-des all the legacies bequeathed to her by the deceased * * * * together with the rents aud revenues thereof from * * * the date of her demand for the same.”

The petition states what those legacies consist of.

It is true that the District Judge gave no reasons explanatory of his decree, other than such as wore orally assigned. No doubt, it would be preferable if judges were to give a written and condensed opinion, in justification of their decree, for that would sometimes assist in better understanding the judgment, but however that be, this was not done in this case.

This Court has given the reasons for which the decree rendered, was pronounced, on review, to be correct. It does not sit to revise reasons for judgment, but to reconsider the judgment itself and when it affirms a judgment, its reasons must be considered as those justifying the judgment.

In the present case, we have distinctly held that the legacies the testator intended to bequeath and which his widow has inherited, could and did consist of his half of the property and effects mentioned in his will, for it is evident that he could make to his wife no bequest of that which, at the dissolution of the community by Ms death, would be hers in full property, burdened as it might eventually have been, but was not, by claims of creditors of the community.

Because his widow accepted that community under benefit of inventory under the provisions of a recent law, it cannot be charged that her half in the community property did not anyhow vest in her, in full property. This sort of an acceptance is assimilated to that of the heir, who succeeds the deceased at'the moment of death and who, by taking-time, only seeks to protect himself from liability, in case of absorption of the assets by the debts.

Rehearing refused.


author: Todd, J.

text:
    No. 8614.
    In the Matter of the Cancellation of the Bonds of A. H. Isaacson et al., Ex-Administrators of City of New Orleans.
    Members of tbe City Council of New Orleans incur no personal liability to a judgment creditor of the city for a failure to levy a tax or provide in the annual budget for payment of the judgment, where, at the time, there exists a legal limitation on the taxing power of the city, by the effect of which a designated portion of the taxes authorized to "bo levied, is to bo applied towards pajino; certain bonded indebtedness of the city, and the residue within the limitation, is appropriated by the Council to the alimony of the city, oxcept a small amount reserved for judgments, which amount was exhausted by judgments prior in registry to the suiug creditor, and whore the creditor has not resorted to a mandamus before or after the a [option of the budget to compel the municipal authorities to provide for the payment of his judgment The Council in such case was not bound to trench upon the funds reserved for (ho alimony of the city to pay said judgment. The making of tho estimate for the necessary expenses of the city government involves a legislative discretion, with which courts will not, unless under exceptional conditions, interfere.*
    Judgment affirmed.
    PPEAL from tlie Civil District Court for tire Parish of Orleans. A Monroe, J.
    (?. L. Bright for Opponent and Appellant.

      B. II. MeOaleh and 8. B. Blanc, contra.

   The opinion of the Court was delivered by

Todd, J.

A. H. Isaacson, Administrator of Finance ; John Glynn, Jr., Administrator of Accounts ; Washington Marks, Administrator of Assessments; J. Henry Behan, Administrator of Commerce; Patrick Mealey, Administrator of Police; and E. K. Chevalley, Administrator of Waterworks and Public Buildings, of the city of New Orleans; their terms of office dating from November, 1878, to November 15,1880, applied to the Governor of the State for the cancellation of their official bonds, under the provisions of Act No. 15, approved February 24, 1877.

L. F. Barrett, a judgment creditor of the city of New Orleans, opposed the cancellation of the bonds and the discharge of the parties, oh grounds and for reasons substantially as follows:

He alleges that Oka fifth section of the Act Wo. 7, JBxtra Session of 1870, j>. 31, provides that every administrator of the city of New Orleans, shall give bond; and section Wo. 29, that lie shall give bond in the sum of $25,000, for the faithful performance of his duties.' And section No. 19 of the same act directs that the Council composed of said administrators, shall, once in every twelve months, before passing and deciding upon the amount of taxes and licenses to be assessed for the following year, cause to be made out a detail estimate, exhibiting the various items of the liabilities and expenditures, and to impose a tax not exceeding $1 75 on every $100 of valuation, which, together with the revenues of the city, shall be used to meet the estimated liabilities and expenditures of the city, as aforesaid; that section 2 of Act Wo. 5 of 1870, Bxtra Session, p. 11, provides that hereafter, no writ of execution or fieri facias shall issue from any of the courts against the city of New Orleans, to enforce the payment of any judgment for money against the city of New Orleans, hut final judgment against the city of NewOrleans, condemning said corporation to pay any sums in money when the same shall become execu-tory, shall have the effect in law of establishing and fixing the amount of the plaintiffs demand against said corporation, and the plaintiff may cause a certified copy of the said judgment, together with a copy of plaintiff’s petition, and the defendant’s answer in the cause in which such judgment is rendered, together with the certificate of the clerk of said court, that such judgment is final and executory, to be filed in the office of the Comptroller of said city; and it shall be the duty of the Comptroller or auditing officer of said corporation, to receive the same, and cause the same to be registered in his office of the date on which the same shall have been presented, and when so registered, it shall be the duty of the Comptroller to draw warrants on the Treasurer, or disbursing officer of the corporation, for the amount due therein, without any special appropriation of money therefor by the Common Council; and section 3 of the same act provides that in case the amount of money designated in the annual budget, for the payment of judgments against the city of New Orleans, at the date when any judgment against said corporation shall have been final and executory, shall have been exhausted, the Common Council shall have power, if they deem it proper, to appropriate from the money set apart in the budget or annual estimate for contingent expenses, a sufficient sum of money to pay said judgment or judgments; but if no such appropriation be made by the Common Council, then all judgments shall be paid in the order in which they shall be filed and registered in the office of the Comptroller, from the first money next annually set apart for that purpose.

Barrett alleges, that notwithstanding he caused his judgments to be registered, the said administrators have negligently, wilfully and wrongfully failed to comply with the law, and to provide for the payment of his judgments; that Ms judgments have ever since remained unpaid, and he has been damaged by the administrators to the amount of Ms judgments. He prays for judgment against them for the full amounts of the judgments he owns against the city of New Orleans.

From a judgment dismissing his opi>osition, Barrett has appealed.

Barrett’s demands are resisted by the ex-officials named on several grounds, the most material of which is the following:

That during their incumbency of the offices mentioned and at the dates when the annual budgets for the city expenditures for the years included in their term of office were made up, there was a limitation of the taxing power of the city to fifteen' mills by Act 31 of 1876. That five mills, by the terms of this act, were required to pay certain bonded indebtedness of the city, and the balance necessary for the alimony and current expenses of the city, except a small amount that was appropriated towards paying the judgments against the city, but which were absorbed by judgments preceding the opponent’s, in the order of their registry.

The evidence on this point in the record shows that for the years mentioned, there was a general reduction of the expenses of the city, amounting according to the estimates of the witnesses to thirty per cent, and that the appropriation made for the maintenance of the city government was really inadequate for that purpose, leaving the irresistible inference that there was nothing left beyond the amount so provided to be applied to the payment of the judgments. Such being the law and the situation at the. time, we are at a loss to discover any ground upon which the members of the Council can be held personally responsible for a failure to provide for the payment of the judgment creditors. There was a limitation on their taxing power imposed by law, -which, in the absence of any judicial mandate compelling a different course, they were bound to respect. The question whether such a limitation should be obeyed, even with respect to contract creditors, was a judicial question with the solution of which they were not charged. 34 A. 476. In this instance though the failure to make a sufficient provision for the payment of judgments against the city was apjwent from an inspection of the budget, yet this creditor and opponent did not seek to compel the administrators by mandamus to supply the alleged omission. 34 A. 1093. Besides, even had such attempts been made, his success would have depended upon his ability to show that his judgments were founded on contracts made before the legislative limitation on the taxing power referred to was imposed; proof of which fact he has failed to make in the opposition we are now considering. 32 A. 709; lb. 884.

It is, however, urged in argument by the counsel for the opponent, that it was the duty of the Coiiricil to provide for the judgments even out of the amount appropriated or reserved for the alimony of the city.

This question we have before had occasion to consider and have held that, the making the estimate and appropriation for the necessary expenses of the city was a legislative function on the part of the Council, with which the courts would not interfere, so long as legal or constitutional provisions and limitations were observed. 33 A. 79. In this instance the record shows that this discretion was not abused.

We are strongly supported in our views on the question touching the jjersonal liability of ex-officers for acts or omissions charged against them in their official capacities, by the decision of the Supreme Court of the United States, in the case of Dow vs. Humbert, 91 U. S. R. (Otto) 294. In that case it was held that the supervisors of a town which had failed to register a judgment and levy a tax for its payment as provided by a statute of the State, were not responsible to the creditor for the amount of the judgment, but only to nominal damages.

There were other considerations presented by the record which would support the consideration reached by us touching the personal liability of these parties, but the point above discussed is, in our view, decisive of the whole case, and renders the consideration of other questions raised by the pleading or argument unnecessary.

For these reasons we see no cause to disturb the judgment of the lower court, which is affirmed with costs.

Rehearing refused.


author: Fenher, J.

text:
    No. 9000.
    Mrs. O. A. Fairex vs. The New Orleans City Railroad Co.
    Plaintiff, two co-heirs and her mother, became joint owners of 200 snares of stock belonging to the community between the last named and her deceased husband, John "B. Schiller, in the proportion of one-half to the mother and one-sixtli to each of the heirs. Defend_ ant corporation permitted the mother to dispose of 134 shares of said stock, and plain_ tiff brings this suit to recover one-sixth of said 131 shares. Held, that the mother’s transfer must bo hold valid to the extent of her entire interest in the stock, viz: One hundred shares, and that the sixty-six shares undisposed of belonged entirely to the heirs, ami that plaintiff could recover only her share, one-third, of the thirty-four shares unlawfully transferred. Held, that the dividends paid to the mother while tutrix of her minor children, and even afterwards during the existence of a judgment recognizing her as legal usufructuary of the interest of her children in the community estato cannot be recovered. The subsequent judgment of this court, in an action to annul this latter judgment, only had effect as to third persons, from the date of its rendition, and only authorized tho recovery of dividends paid thereafter.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      W. S. Benedict for Plaintiff and Appellant.

      Braughn, BueJc c6 DinJcelspiel for Defendant and Appellee.
   The opinion of the court was delivered by

Fenher, J.

The petition of plaintiff herein represents that she is one of the three heirs of her father, John B. Schiller, who died in 1869, leaving a large community estate, including, amongst other property, two hundred shares of stock of the defendant company, of one-sixth of which, by virtue of her heirship, she became owner, and entitled to the interest and dividends therein; that her mother, Mrs. Schiller, qualified as executrix and as natural tutrix of petitioner, that she has recovered judgment against her mother, as late tutrix and executrix, for @30,000 'due as her share of the rents and revenues of the property left by her said father, not including her share of the stock aforesaid, upon which judgment execution has been issued and returned milla bona; that she has applied to her mother for possession of her share of said stock, without effect; that she is informed that the defendant company has unlawfully and without authority permitted one hundred and thirty-four shares of said stock to.be transferred by her mother to parties unknown, which transfers, as to peiitioner’s one-sixth thereof, are null and void, wherefore she prays to be recognized to have been owner of one-sixth of said one hundred and thirty-four, shares, together with the dividends accrued thereon, and foi; judgment for the market value of the same and for said dividends.

The defendant answers, in substance, admitting the ownership of two hundred shares of stock in John B. Schiller at his death, of which plaintiff, as heir, became entitled to thirty-three and one-third shares, while Mrs. Schiller, as surviving partner in community, became owner of one hundred shares, or one-lialf of the whole, and was recognized and put in possession thereof by competent judgment of the probate court; that of the thirty-three and one-thiril shares owned by plaintiff, she has actually received twenty-two shares, and that she had sanctioned the transfers made by her mother of her remaining interest; and that the dividends were properly paid to her mother, or her transfer-rees, as legal usufructuary of the entire property. As to the stock, it is unquestionably true that plaintiff never owned and does not pretend to ha.Ve ever owned but thirty-three and one-third shares. It is equally true that she has received twenty-two shares thereof. The attempt of defendant to establish her consent to the transfer by her mother of her remaining interest, has not, in our judgment, been successful, and she is therefore entitled to the remaining eleven and one-third shares, or their value.

We have nothing to do in this case with the disposition made by her mother of the other property of the estate and of its revenues, nor with the judgment which she obtained against her mother on that account. This is not an action for partition of the community, nor to subject property to the judgment rendered against her mother. It is a simple claim to ownership, as heir, of her portion of particular community property, and the very claim admits like ownership in her co-heirs and her mother to their shares thereof. The alienation by her mother mast he considered as the alienation of her own share to the extent thereof, and to that extent valid. No formal partition of property of this character was necessary. Being- composed of numerical units, each necessarily and absolutely equal in value to the other, it partitioned itself, and the sale of one hundred shares was the entire equivalent, of the sale of an undivided one-half of two hundred shares. The remaining sixty-six shares belonged to the three heirs solely, being twenty-two shares to each, and each one of them had a claim for the rest of their respective shares, viz: eleven and one-tliird shares each against the company, if it had permitted their unauthorized transfer.

Plaintiff having received twenty-two shares, the limit of her claim is for eleven and one-third shares, or their value.

As to the dividends, by judgment of the probate court, competent, final and never appealed from, the mother was recognized and sent into possession, not only as owner of one-half of the entire community estate, but also as usufructuary of the other half inherited by the children.

It is true that long afterwards, plaintiff on reaching her majority brought suit to annul this judgment, and in January, 1881, this Court rendered its decree annulling the same.

This, however, did not destroy the validity of the payments of dividends made to the mother by the defendant duringthe existence of the judgment; and even independently of the judgment, the payments during minority of plaintiff were properly made to the mother in her capacity as natural tutrix. The judge a quo gave plaintiff judgment for the value of eleven and one-third shares of stock and for the dividends accruing after January, 1881. Although both parties complain of his decree, we think he did exact justice.

The plea of prescription of one year, interposed by defendant, is without merit.

The action is not one sounding in damages for a quasi offense, but one for. the property or its value. As to the relation of the corporation to the stockholder, we recently had occasion to enunciate the well established doctrine that the corporation is the custodian and trustee of the corporate property, funds and stock, for the stockholder.” The law would be in strange case if such a custodian and tmstce, when called upon for the property entrusted to him, could say to the owner, “you cannot get the property, because I have disposed of it, and you cannot get its value because my wrongful disposition was made more than a year ago and your action is prescribed.”

Judgment affirmed at appellant’s cost.

Behearing refused.


author: Manning, J.

text:
    No. 8925.
    Stoddard Howell vs. The Butchers’ Union Slaughterhouse and Live Stock Landing Company.
    Tli© constitutional prohibition of monopolies is absolute and effective, and therefore abro . gated tbe exclusive nrivilego of slaughtering animals for food, given by the legislature of 1869 to the Crescent City Stock Landing and Slaughterhouse Company, and invested the municipal authorities of the city with power to regulate the matter, subject to tbe approval of the Hoard of Health.
    A slaughterhouse is prima fade a nuisance, and therefore until the municipal authorities regulated the location of such buildings by fixing the limits within which they should not he placed, no|one could lawfully locate one within the city boundaries.
    After those authorities had thus regulated the matter, a company may locate its abattoir and appurtenances in conformity thereto, and an injunction will not lie to restrain it in the absence of proof of nuisance.
    APPEAL from the CM District Court for the Parish of- Orleans, Lazarus, J.

      B. B. Forman for Plaintiff and Appellee.

      Bober t Mott and T. J. Semmes for Defendant and Appellant.
   The opinion of the Court was delivered, by

Manning, J.

The suit is an injunction by a resident of New Orleans to restrain and prevent the erection of a slaughterhouse and its adjuncts, hog pens, stock yards, etc., for the reason that they would be nuisances, and would destroy the health of the neighborhood, and impair the value of his property, and also to prohibit the cutting of the levee, which he alleges the defendant was about doing for purposes connected with its slaughtering.

The answer denies that a slaughterhouse at that particular spot would be prejudicial to health or hurtful to property, and avers that the plaintiff has all along encouraged and invited its location there, and continued acquiescent up to and during the time the .buildings were erecting.

■ A slaughterhouse is prima fade a nuisance, but it does not follow that it is a nuisance to all the world. To those who are remote from it, or not near enough to be affected by it, it is as if it did not exist The spot selected for this building is on the verge of the city limits. Its location has been approved by the .Board of Health, and the plaintiff welcomed it to his neighborhood.

The main ground of contest on the trial seems to be that the location was within the city limits, which the plaintiff claims is prohibited by the Act of 1869, Sess. Acts, p. 170. The prohibition in that Act of slaughtering animals for food within New Orleans is coupled with the permission to the company mentioned therein to do it. It was but a form of expression by which a monopoly of that business was given to the Crescent City Stock Landing and Slaughterhouse Company. Since then, the Constitution has interposed a prohibition of monopolies, and delegated the regulation of this particular business to the municipal authorities of this city. This was an abrogation of the exclusive privilege heretofore granted, and a conferring upon the local government the right to say how and where it should be exercised in future. This right was legally conferred. Cres. City L. S. L. Co. vs. New Orleans, 33 A. 934.

The city authorities had not acted on the matter when this injunction was obtained, but since then and before the trial they enacted ordinances that liad been approved by the Board of Health, under which the location of a slaughterhouse at this point is permitted. The plaintiff anticipated the Board of Health in the permission he gave, and the City Council, in fixing the limits beyond which a slaughterhouse might be placed, only confirmed the opinion already expressed by the plaintiff upon the appropriateness of this spot.

The supplemental answer charges that he does not now apprehend a nuisance, or believe that the location of a slaughterhouse will create one, but is lending his name to the Company which has long exercised the exclusive xrrivilego of slaughtering animals for food under the Act of 1869, to assist it in continuing the enjoyment of that monopoly. The boundary of his property is four hundred and eighty feet distant from the boundary of the tract or parcel of land upon which the defendant was erecting its buildings, and it does not yet appear, that this is not sufficiently remote to avoid any annoyance from the business the defendant, proposes to conduct in them.

The second ground of injunction is that the defendant intended to cut the levee, which would exqmse the plaintiff’s property to danger from inundation. The record is barren of proof to sustain the charge, except that a ditch or drain was digging from the buildings to the river, and a discharge pipe was to be inserted through the base of the levee, both to serve as a vent for the liquid from the abattoir. This is one of the appliances designed by the defendant to prevent the creation of a nuisance, and is similar to that used by the company now engaged in slaughtering. An experienced engineer is employed by the defendant to construct this necessary outlet for impure liquids, and every precaution- is taken to avert the consequences suggested by the plaintiff. It seems inconsistent and querulous for him to complain of an apprehended nuisance, and in the same breath to try to prevent the precautions that are taken to prevent the nuisance.

The lower court dissolved the injunction as to the slaughterhouse, and perpetuated it as to cutting the levee, at the defendant’s costs. The defendant was without authority to place the slaughterhouse at this spot until the city authorities had exercised the power delegated to them in the matter, but after they had acted, the company should not be mulcted in costs for availing itself of the permission granted, in the absence of proof that any damage has resulted therefrom.

It is therefore ordered and decreed that the judgment of the lower. court is set aside, and the injunction of plaintiff is dissolved, the defendant to pay all costs incurred before the passage of the city ordinances in the record, and the plaintiff to pay those incurred thereafter.


author: Behmudez, C. J.

text:
    No. 8963.
    C. Zimmermann et al., Executors, vs. Justin J. Langles
    A purchaser of real estate and other property, on time, is relieved from the obligation of making ft tender and consignment, to relieve himself from interest after maturity, •where the vendor himself brings, before maturity of .the notes, an action to annul the sale; but owes such interest from the finality of the judgment rejecting the demand in nullity in default of a tender and consignment. Article 2559, Ü. C.C,, applies to cases in which the suit to evict is not brought by the vendor, hut by others.
    The executors of a surviving wife have no right to sue for the recovery of the whole amount, of notes belonging equally fo her succession and to that of her husband, whose heirs of age are recognized and put in possession. They can sue only to recover the half of the notes accruing to her succession.
    The purchaser failing to pay at the termination of the «suit to annul the sale, a suit became necessary to coerce payment.
    In the event of such suit, the fees of the attorneys employed must be paid by tbe imrohaser at the rate agreed upon in the aggregate of the capital .and interest due at the timo of the filing ot the petition and due the succession represented by the executors.
    PPEAL from tbe Civil District Court for tbe Bightor J. Parish of Orleans,

      W. JB. Koontz and T. Gilmore & Sons for Plaintiffs and Appellees:'

      Henry Denis and A. B. PhilKps for Defendant and Appellant.
   The opinion of the court was delivered by

Behmudez, C. J.

The defendant appeals from a judgment against him on two notes, drawn by himself, to Ms own order and by him indorsed, in blank, secured by vendor’s privilege and special mortgage bearing eight per cent interest from date to payment. The judgment allows ñve per cent attorneys fees, on the amount sued for and costs of suit.

The defendant contends that, while he does not dispute, nay admits, owing the capital of the notes with interest from date to maturity, he cannot be condemned to pay the same to the plaintiffs, who have no title to them and that, under no contingency, can he be subjected to pay interest from maturity, and, besides, attorneys fees, under the exceptional limitations of the case.

The. notes were furnished in settlement of the purchase price of the half interest of N. A. Baumgarden in certain real estate and other property, sold to defendant on December 31, 1877. The notes bear that date and are payable one and two years afterwards, at the Union National Bank in this city.

On the day of maturity of the first note, the defendant went, with a notary and witnesses, to the bank to iniy the same; on being informed that the notes had not been left there for collection, he deposited the amount with the bank. After a while, the note not having been presented, the deposit was withdrawn. When the second note matured, a year later, the defendant again i>ro eeeed to the same bank, with the means in hand to pajr it, inquired for it, and was told that it had not been deposited there for collection. \

Several months after the sale by Baumgarden to Langles, viz: on May 21, 1878, Baumgarden haying been interdicted, his wife was appointed his ouratrix. In that capacity, previous to the maturity of the first note, viz: on the 30th December, 1877, she brought suit against Langles, on several grounds, to have the sale annulled. The judgment rejecting her demand was affirmed by this court, in April, 1883. 35 A'. 442.

Shortly after, Langles published an advertisement calling on the holders of the notes to produce them and expressing his willingness to pay them in capital with interest to maturity.

Prior to the final decision of the case, viz: April 23, 1879, Baumgar-den died, leaving a widow and four children, three of age and one a minor, the issue of their marriage.

Ilis widow died on February 5, 1882, leaving as her only heirs the same four children; she left a will, appointing the plaintiffs herein, her executors and one of tliein tutor of the minor, Lilly, both of whom qualified in said capacities.

The heirs of age of N. A. Baumgarden have been recognized as entitled to three-fourths of Ms estate and were ordered to be put in possession.

An inventory was taken of the property left by Mrs. Baumgarden. It shows the same to consist of her half of the property, once composing the community between her and husband, appraised at $31,911 12£; the notes sued on forming part thereof, her share therein, valued at $19,450.

Those notes having been found in a tin box in the possession of Mrs.' Baumgarden, continued to be kept therein deposited, in a bank subject to the order of the Civil District Court, Division B, before which her succession had been opened.

They are the notes sued on in the present action brought by the executors of Mrs Baumgarden, shortly after the final decision of the suit for the nullity of the sale, April 24, 1883.

Under such a state of facts, several questions present themselves :

1. Was the defendant bound, at the maturity of the notes, to have made a tender and- deposit of the face and interest to date, of each note ?

2. Was he bound previous to the institutkm of this suit, on the notes, to have made a tender in whole or in part ?

3. Is he liable for interest from date to payment"?

4. Is he chargeable with attorney’s fees for. the prosecution of the suit.

I.

The suit to annul the sale, was brought by Mrs. Baumgarden, as civratrtx, on December 30, 1878, before, the maturity of the first note. Tire petition and citation were served on the same day on the defendant. After the death of Mrs. Baumgarden, the suit was prosecuted by her executors.

The suit was equivolent to a formal notice by the vendor, to Langles, that payment of the notes would not be received and would be refused if offered to be made.

Indeed, how could the curatrix have consistently received the price of a sale, the invalidity and nullity of which she had alleged and sought judicially.

The law does not require the idle ceremony of a tender, where the creditor refuses payment, such refusal implying a waiver of it. 27 A. 111. Teutonia Bk. vs. Loeb.

Neither does the law make it essential that where a tender lias been made or waived, the debtor should consign the amount tendered, or which, without the waiver, would have been tendered. It leaves it optional with the debtor to do so or not at his pleasure. C. P. 412 ; R. C. C., 2167.

' Tire failure to make the consignment does not- defeat the benefit to be derived from a tender, or from one which has been waived. 27 A. 210. Alter vs. Shepperd.

When the consignment has not taken place, the debtor continues to be answerable for the amount tendered. It would be no excuse to him that he has lost or was robbed the amount, or that the bank with which he did business and in which the amount was on deposit, to his own credit, has become insolvent, or the like.

When the consignment has been legally made, the dedtor is exonerated from further liability. The money or property remaining' on deposit, at the charge and risk of the creditor. Should it perish, or be spoiled, or its value diminished without the fault of the debtor, the loss would fall on the creditor.

When the tender has been made or waived, it is immaterial who is the custodian of the money or the property, the bank or the creditor; as in the case of money, the bank would not j)ay interest on it to the creditor, provided in either case, such money be forthcoming on the demand of the creditor. The debtor, in either case, would not be responsible for interest, between the time the tender was made or waived and that of the demand for payment.

The case might be different had the suit in eviction been brought by a third person, by no agency of the vendor, and the latter being unable to furnish security.

The law on that subject and the adjudications of courts expounding it, find their application in such instances, but have no effect in cases in which, like the present one, abstention from payment is the direct consequence of the positive act of the vendor himself. R. C. C. 2559. The principle is, in such cases, that the purchaser, being thereby authorized by the vendor, is justified in withholding the price and is not liable for interest as long as the act continues, but is so after the danger of eviction has ceased, liis title quieted and he has failed to pay. Potthier, Vol. 28, 286; 13 L. 338; 1 L. 70.

II.

While it is true that the purchaser cannot be charged with interest from the maturity of the notes and during the continuance of the action to annul the sale, it cannot be claimed, with any plausibility, that he is not liable for interest from the termination of that suit.

The defendant’s theory, that tender and consignment cannot be required from a debtor who does not know his creditor, surely does not obtain in a case like this, where he knew that the notes belonged to Baumgarden, or his representatives. The information conveyed him on that subject was complete in the suit to annul the sale. The judgment in that case by this Court became final and executory on the 16th of April, 1883, when the last judicial day expired. From that date must the defendant again pay interest.

The half owned by the succession of Mrs. Baumgarden could and should have then been paid, and not having been acquitted, the executors had a right to demand payment of it judicially. Amicable demand was not denied and not at issue. The defense urged shows that it would have beeu unnecessary.

As the executors of Mrs. Baumgarden did not represent the succession of her husband, and as his heirs have not joined them in this suit, judgment could not be rendered against défendant for the whole amount of the two notes, with interest even from judicial demand. Judgment could have gone only for the half of the notes belonging to the succession of Mrs. Baumgarden, with interest from the termination of the suit to annul.

It is no excuse for the defendant to say that the other half of the notes belong to the heirs of N. A. Baumgarden. Three of those heirs are of age, the other is a minor, represented by a qualified tutor. Payment of half of the notes to the plaintiffs can in no way affect their interest as co-owners. The notes were, and are still, under the control of the Civil District Court, Division B. That court could have ordered the executors to receive payment of the half they represented, and to credit the notes accordingly. Payment thus made and interest would have extinguished half of the debt and authorized a cancellation of the mortgage inscription juu tanto and thus have completely protected and benefited the defendants to that extent in every respect.

III.

The last question which remains to be determined concerns the liability of the defendant for attorney’s fees.

We have settled that one-half of the notes belong to the succession of Mrs. Baumgarden, which is legally represented by her executors, plaintiffs herein; that the defendant was in default in not tendering the amount due previous to the institution of this suit to that succession. The institution ancl prosecution of the proceeding to compel payment became a necessity, brought on himself by the defendant. Under the terms and conditions of the- sale, it was agreed that the purchaser would, in case of suit, pay the fees of the attorney employed, at the rate of five per cent. For such fees he is therefore liable, but only on the amount claimed and accruing to the succession of Mrs. Baum-garden.

The. district judge erred in rendering judgment for the plaintiff for the whole amount of the notes, with interest thereon from date to payment, and attorney’s fees thereon. He should have rendered judgment for one-half of the notes, with interest from date to maturity, and from the termination of the suit to annul till paid, and attorney’s fees on the same. To that extent the judgment-should be modified.

It is therefore ordered and decreed that the judgment appealed from be amended so as to read as follows:

It is ordered and adjudged that the ifiaintiff, the executors of Theresa Baumgarden, recover from the defendant, J. J. Langles and for her succession, the following amounts:

1. Seven thousand five hundred dollars ($7500), with eight per cent interest thereon per annum from the 31st of December, 1877, to the 31st of December, 1878; and on the same amount from the 16th of April, 1883, till paid.

2. A similar Sum ($7500), with similar interest from December 31, 1877, to December 31, 1879, and on a similar amount from April 16, 1883, till j>aid.

3. Five per cent attorney’s fees on the aggregate of said sums in capital and interest at the dato of filing of petition herein.

It is further ordered and decreed that the rights of the heirs of age and of the minor, Lilly, representing the succession of N. A. Baumgar-den, be reserved for future action.

It is further ordered that the defendant pay costs in the lower court, and the xfiaintiffs and appellees those of the apx>eal in this Court.

Rehearing refused.


author: Poci-ié, J.

text:
    No. 8952.
    James W. Gahn vs. Eliza Darby, his Wife.
    The wife is bound to live with her husband and to follow him wherever he ehoses to reside, O. C. Art. 120.
    If, therefore, the husband decides to change the matrimonial domicile from one place to another, for reasons of his own, the wife must follow him to his new abode. Her refusal, without lawful cause, will he construed as an abandonment within the meaning of the law, and will justify his demand for a,judgment ordering her to comply with his request.
    The facts that he is poor, with a scanty means to supply her wants and tastes, that he has an irascible temper, a cool and distant disposition, has treated her harshly, in conse-
    1 quenco of which they had been previously separated, do not operate a lawful cause for such refusal, when it appears that they had been reconciled and had exchanged pardon.
    Pending the litigation, the father is ^titled to the legal custody of the child, unless strong reasons exist to the contrary.
    APPEAL from the Civil District Court for the Parish of Orleans. Eightor, J.

      H. M. Bkjams and F. Kerncm for Plaintiff and Appellant.

      Egan & MeEnery for Defendant and Appellee.
   The opinion of the court was delivered by

Poci-ié, J.

Plaintiff seeks to obtain a judgment of separation from bed and board against his wife on the ground of abandonment, and has obtained service on her of three reiterated summonses prescribed in such cases by Article 145 of the Civil Code.

The defendant alleges, in justification of her refusal to follow her husband, that since their marriage in the year 1877, in the parish of Union, where they resided until September, 1882, he had been guilty of unpardonable negligence and coolness, and of cruel and outrageous conduct, towards her, to such an extent as to render their living together insupportable, and that by means of a suit for separation from bed and board which he had filed against her in Union parish, in October, 1882, he had publicly defamed her good name and character. Her answer concludes with a reconventional demand for separation from him, predicated on her foregoing allegations of ill conduct and harsh treatment and defamation. Both parties pray for the legal custody, pending the litigation and after final judgment, of a boy, born in July, 1879, of their marriage, who has been in the actual or physical custody of the mother since the separation of the spouses.

The district judge rejected plaintiff’s demand and dismissed defendant’s reconventional demand as in case of non-suit. Both parties have appealed.

Our law on the subject of this litigation is very plain and unambiguous and is well settled in our jrrasprudence. The question involved is, therefore, mainly a question of fact.

The evidence is very conflicting and the record contains a mass of irrelevant testimony, so that the investigation of the case has not been free of difficulty. Our brother of the District Court has not favored us with the reasons of his conclusions. But, under the pleadings, his judgment appears, to us, hardly reconcilable with the evidence and not responsive to the issue in the case.

The only defense which could defeat the husband’s demand, which is at this stage, for a judgment sentencingáRhe wife to comply with his request to join him in the matrimonial domicile which he proposed to establish in the city of New Orleans, in lieu of their former domicile in Union parish, must rest on proof on the part of the wife, of a lawful cause for her refusal to further co-habit with her husband. Now, under the pleadings in this case, such a cause was alleged to be formed in the cruel and outrageous conduct of the husband and in the public defamation of his wife By him, through the injurious action for separation which he had filed against her in Union parish and which he is alleged to have abandoned for the reason that he feared to meet her on the proof.

If the judge found such facts from the evidence, that conclusion should have prompted him to allow the defendant’s reconventinal demand, and he would thus have put an end to the painful uncertainty and suspense which must cause mutual suffering and great misery to both spouses and which doubtless operates a denial of justice to the injured party. If, on the other hand, the evidence failed, in his opinion, to support the justification relied on by the wife, the plaintiff was entitled to the first relief provided for by law in such cases. But his judgment disposes of neither issue.

A careful study of the record has led us to the conclusion that the defendant has failed to prove a legal justification of her refusal to follow her husband to the new matrimonial domicile.

In default of such justification she was bound to live with-her husband and to follow him wherever he choose to reside and this obligation implied the duty to leave the parish of Union and to join her husband in the city of New Orleans, when he requested her in January, 1883, to come to him at the domicile which he had established in that city. C. C. Art. 120; 5 U. S. 61, Chrétene vs. Husband; 1 A. 315, Neal vs. Husband.

From the record we gather the following as the main substantial facts which bear on the issue presented by the wife’s alleged justification to live separated from her husband.

He is shown to be a man of irritable and irascible character, of a cool and distant disposition and somewhat exacting of the duties and regards which are dire to him by his wife. As a consequence of such a disposition, he was harsh and, perhaps, indecorous in speech, in the reinimands which he frequently inflicted on his wife, and, on two occasions, he. became very violent and abusive to her. Once he actually attempted to beat and strike her, when he was checked by the presence of her father: and, on another occasion he pushed her away from him with violence. These ebullitions of temper and scenes of anger and violence were followed by a separation of the spouses. But, yielding to the entreaties of the wife’s father and of other friends, the husband consented to return to her and they were then fully reconciled and reunited. Hence, under the law, these scenes are no longer a factor in this ease and must be eliminated from its discussion. C. C. Art. 152.

The evidence fails to show the repetition of any such scenes after the reconciliation, although the latter was of short duration. The spouses had then ceased to board at a public hotel, where the first separation had taken place and they had established their home at the house of the wife’s parents.

New and irritating causes soon affected the harmony of their conjugal relations and interrupted once more the peace of their lives together.

They weighed heavily on the mind of the husband, who resolved to leave a place in which local influences combined to mar his conjugal union and to destroy his happiness. He then came to this city, where his wife refuses to follow him.

The record shows that his reputation as a citizen, as a man of honor and as a husband and father, was good in. the locality where he lived and where he was known. He was poor and plain in Ms tastes and mode of life, but he was steady and industrious, and he supplied his wife and child in all their wants to the full extent of his means, wMch were, limited to his salary as a clerk.

She had been well educated, and was accomplished in music and she loved the prominence which that circumstance brought to her. Her tastes were ambitious, and they engendered wants and aspirations wMch would have required extensive means for their gratification. His means were inadequate to fill the measure. Hence flowed disappointment, discontent, quarrels and consequent coolness.

But the law affords no remedy for such troubles, which must be met and overcome by the spouses themselves, through a spirit of mutual forbearance and of affectionate resignation characteristic of all lasting unions, whethei of matrimony or of friendship.

The law lends its power only in extreme cases, only to the injured party and only in instances of grievous wrongs and of unbearable oppression.

Our law looks with great favor on marriage and gives no encouragement to divorces and separation, which should bo resorted to when all endeavors to secure harmony and peace in the married life have failed on the part of the injured spouse, Who is free of wrong on his or her part.

The defendant further relies for justification, and for relief on the attack made on her good name and character by her husband by means of an injurious and defamatory action alleged "to have been brought against her by him.

But she has faded to introduce in evidence the record of that suit, and that allegation stands also without support in the record.

•Some allusions are made by several witnesses to such a proceeding, but in the absence of the only legal proof of such a suit, if it was ever filed at all, the Court must ignore everything connected therewith. Hence, this allegation must also share the fate of other means of justification invoked by the defendant.

The record therefore presents the bare question of the wife’s obligation to follow her husband to the new matrimonial domicile which he had the right to establish, and of her refusal, without lawful cause, to comply with his request. He is therefore entitled to the judgment contemplated in article 145 of our Code. And as the record shows no strong reasons against his claim for the legal custody of the child, he is likewise entitled to that relief under the provisions of article 146, Civil Code.

The judgment of the lower court, in so far as it rejects plaintiff’s demand, is therefore reversed. And it is now ordered and decreed that plaintiff do have and recover judgment against the defendant, sentencing her to join him in the matrimonial domicile established by him in New Orleans; and allowing to plaintiff, pending this litigation, the legal custody of the child, Willie A. Gahn, issue of his marriage with defendant; and it is ordered that this cause be remanded to the lower court, to be further proceeded with according to law; and that the judgment of the court a qud, in so far as it dismisses defendant’s recon-ventional demand, as in case of non-suit, be affirmed, costs of this apj)eal to be paid by the defendant, those of the lower court to abide the final decision of the cause.


text:
    No. 8957.
    Charles Prager vs. V. Micas & Co.
    Plaintiff obtained a respite from liis creditors under the insolvent laws of the State. In Ms schedule he reported certain notes as owing on o V. M., on whom the usual notices were served, but who did not attend tlie meeting of the creditors or participate in the proceedings. Y. M, & Co. had sued the plaintiff — the insolvent debtor — on the notes before the District Court of hfew Orleans, before the respite was applied for, but after the same was granted withdrew the suit and instituted attachment proceedings on the notes in the State of Mississippi.
    The notes, though executed in favor of Y. M., purported to have been transferred to Y. M. & Co., a firm of which he was a member. Judgment was rendered by default against' plaintiff — the debtor — in the State of Mississippi, and immovable property in that State, which was included in the schedule of the insolvent, was seized thereunder and advertised for sale. The parties all resided in Xew Orleans

      Held, that an injunction against the sale properly issued from the District Court of ISTew Orleans, and was properly perpetuated.
    PPEAL from the Ciyil District Court for the Parish of Orleans. -FN Lamms, J.

      JB. G. Elliott for Plaintiff and Appellee.
    IF. 8. Benedict for Defendant and Appellant.
   The opinion of the Court was delivered hy

Todd, J.

The plaintiff applied under the State insolvent laws for a respite, and after a meeting of his creditors and said proceedings had, a judgment was rendered granting the respite prayed for. Subsequently to the rendition of such judgment, the defendants, who had instituted suit against the plaintiff on certain promissory notes before the Civil District Court of New Orleans prior to the proceeding for the respite was commenced, withdrew the suit, and proceeding to Hancock county, Mississippi, sued out an attachment against the plaintiff on the notes in question and caused certain immovable property in that county to be seized thereunder, and finally obtained judgment upon their demand, which they were proceeding to execute hy the sale of the - property attached. Thereupon the plaintiff applied for and obtained an injunction against tbe said proceedings of the defendants, which injunction was upon trial perpetuated, and it is from this judgment perpetuating the injunction that this appeal is taken hy Micas & Co., the attaching creditors and the defendants herein.

The grounds of -the injunction were, substantially, that plaintiff, the debtor, had made a surrender under the insolvent laws of this State and applied for a respite, that the property attached was included in Ms schedule and the notes in question duly place 1 thereon, and the proper notices given of the. respite proceedings, and a judgment rendered granting the respite, and that the defendants ivere therefore precluded from talcing any separate action against hint or his property.

To this action several defenses were urged, hut the only ones insisted on before this Court are briefly that they, defendants, were not placed on the schedule as'creditors; that Y. Micas, one of their firm, alone had been placed on said schedule for a certain sum; that they, Micas & Co., had acquired the debt in question from V. Micas, and that he, said Micas, had taken no part in the respite proceedings.

No question is raised as to the identity of the debt reported in the schedule as the Y. Micas notes,” and the one proceeded on by attachment in Mississippi. They are the same. It also a.pi)ears from the pleadings and evidence that the notes were executed in favor of V. Micas, and subsequently purport to have been acquired from him by the firm to which he belonged.

It is also shown that, besides including the notes and their amount in the schedule as the Y. Micas notes, notice of the surrender and the meeting of the creditors was duly served on V. M icas, the original creditor, and Micas & Co. were also notified of the judgment of the court granting the respite. All the parties are residents of this city.

We fail to find in the respite proceedings and in the alleged omissions and irregularities charged, any attempt at concealment or fraud, or in short anything that would cast the slightest imputation on the entire good faith of the debtor. The objections of the defendants are purely technical. There was a substantial compliance with the law in all material respects. The main objects of its requirements are that the assets and debts shall be faithfully reported in the schedule and the creditors notified, and notified in such manner as not to be left in ignorance of the proceedings. These objects were fully subserved. The debt was accurately reported and in such way as not to leave room for mistake. The party with whom the debt was originally contracted was personally notified. The other member of the firm of V. Micas & Co. was shown to be the book-keeper or employee of Micas at the time the notes were executed, and to have been continuously associated in business with him in some capacity from that date to the service of the notice. Besides, both members of this alleged firm must have known of these proceedings on the part of their debtor. Micas, as stated, was personally served with notice, and the fact of the discontinuance of their suit pending before the Civil District Court of this city and the attachment suit instituted in Mississippi under the personal direction of the other partner inmiediately after the judgment granting the respite, shows that hot-li members of the partnership were fully apprised of the proceedings. This was sufficient. Fourchy vs. Bayley & Pond, 33 A. 778; Anderson vs. His Creditors, 33 A. 1155.

We see no reason to disturb the judgment of the lower court, which is therefore affirmed, with oJ.s.


author: Fenner, J.

text:
    No. 9016.
    Carolina M. Schiller vs. The New Orleans City Railroad Co.
    The principles aim*»»* . cd in tlie decision of Fairox. vs. same defendant, are applied in this case.
    The authority oí a tutrix to sell movables of minor ward, under administration, mint be exercised under judicial authorization and at public sale, Articles 338 and 5J41. llov. C. C. being construed together.
    PPEAL from the Civil District Court for the Parish of Orleans. -Ol Monroe, J.

      Charles 8. Bice for Plaintiff and Appellee.

      Brauglm, Buck & Binkélspiél and W. 0. Hcvrt, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The cause of action herein is identical with that presented in the case of Mrs. 0. A. Fairox vs. the same defendant.

The principles announced by us in the decision of the last mentioned case, are accepted by all parties as correct and as applicable here.

The only distinction urged between the cases, is that in the instant case, the transfers complained of were made during the minority of the present plaintiff, and that Mrs. Schiller, in her capacity as tutrix, had the right to make them. This pretention is based on Article 338, Rev. C. C.; hut it is obvious that this article must he construed with Article 341; and from the two it is clearly apparent that the tutrix can sell neither the movables nor immovables of her ward, except under judicial authorization.

Complaint is also made that the value of the stock recovered should be assessed according to the market price at the date of its illegal transfer; whereas, in the Fairex case, the judgment affirmed, allowed its value at the date when, by the termination of the tutorship and the annulment of the widow’s usufruct, plaintiff acquired the right to enter into possession of her stock. In the eye of the law and as regards the. defendant, plaintiff remained the owner of the stock and was entitled to the increment in its value at least to the date mentioned.

The judgment appealed from in this case does not conform to these views, and must he reversed.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from he annulled, avoided and reversed; and proceeding to render such judgment as should have been rendered below, it is now ordered, adjudged and decreed that i>laintiff, Carolina Mathilda .Schiller, do have and recover judgment against the New Orleans City Railroad Company, defendant, decreeing said plaintiff to be the owner of eleven and one-tliird shares of the capital stock of said company, with the dividends declared thereon since the twenty-eighth day of January, 1871, and, in default of issuance of said certificate, then she do have judgment for the value thereof, to-wit, $1269 33|, with the dividends thereof, of one and a half per cent on March 25, June 24, September 30, and December 30, 1881; March 17, June 16, 1882 respectively, and any other dividends subsequently declared; defendant to pay costs of the lower court, and plaintiff and appellee to pay costs of this appeal.


text:
    No. 8647.
    Martin Dunsee & Co. vs. A. Norden & Co.
    In an action for damages, alleged to have "been suffered from tlie publication of a libel, where the published matter appears not to be a libel, but a privileged communication, no damages can be awarded.

      Merrick, Foster & Merrielc, for Plaintiffs and Appellants.
    Under the general issue in an action of libel the defendant canot give in evidence, by way of justification, facts tending to show that the words were privileged communications-The special defense should he pleaded. 10 A., 231. 28 A., 239.
    A party who has published a libol, after being informed of its falsity, cannot defend himself under the plea that the libel was a privileged communication. The law does not favor the circulation of lies and slandors, nor grant an immunity to any one for so doing. Odgers on Slander, marginal, page 199. C. C., 2315, 2316.
    “All persons concerned in the publication are guilty to the same extent.” Cade vs. Dedditt, 15 A., 493.

      E. W. Jhmtmigton and IT. L. JDufour, for Defendants aud Appellees.
   The opinion of the Court was delivered by

Manning, J.

The plaintiffs are commission merchants of Mobile, and bring this suit to recover fifty thousand dollars as damages suffered by a libel, alleged to have been published by the defendants, which ruined the plaintiffs’ credit and destroyed their business. The defendants pleaded the general issue alone.

The libel is a private letter written from Mobile to A. Norden & Co. of this city of date September 29, 1880, and one of the latter firm to Morton; Bliss & Co. of New York, dated October 15, 1880, as follows:

“M. D. & Co., are people of no standing oit credit whatsoever. Neither have they any means. Up to last July and August, they were dealers in chickens, eggs, etc. Since that time they have been buying-cotton quite freely, to the general astonishment of the community, and to the great satisfaction of our factors, who obtained about an -J- advance more from them than anybody else; only one bank takes their exchange; none, of the others want to have anything to do with them. Under these circumstances, of course we cancelled the purchase, giving as our reason the above report, and telling them that we could' never touch their bills again unless they wrote us a letter stating them• means, and. which we would ¡forward to your good selves, subject to your approval. They were furious enough, but up to now we never received that promised letter ! ”

The language used in the letter to A. Norden & Co. from Mobile is substantially the same as that used by-Norden to his New York correspondents, from which latter this extract is taken.

Wernecke of the Norden firm told Yuille, an exchange broker of this city, of the contents of this letter, and Yuille told Cucullu another broker. Thos. P. Miller & Co. of Mobile learned of it, and it said so did Morton, Rose & Co. of London, the branch house of Morton, Bliss & Co.

There was much learned discusión at the bar, as there is in the briefs, of the legal principles which it is said enter into this case. It is denied that justification can be heard unless it is specially pleaded, and that all evidence tending to support that plea must be excluded where the defense is the general issue alone — and that the lower court, in sustaining the defense, that the libellous words were a privileged communication, went beyond the pleadings.

We do not find it necessary to enter into these discussions, much less to follow the plaintiff’s counsel in his earnest presentation of the enormity of the defendants’ offense in stigmatizing the plaintiffs as quondam “chicken-peddlers.” No business man, and no sensible man in any sphere of life, would refuse to entrust his business to a man of affairs of credit and character, because Ms occupation had once been humble. It is the boast of our country that of all the world, it contains the largest proportion of men, who from insignificant beginnings have risen to wealth, consideration, and honor by force of character, and by rectitude in dealing. Good credit and high character, won by right dealing and unblemished honorable conduct, cannot be lost by sneers at one’s origin, or reminders of one’s former lowly occupation. The lofty rebuke of Lord Thurlow to the Duke of Grafton, who taunted him in the House of Lords with his humble origin, does but give voice to a sentiment as universal as it is commendable; — “ I can say that as a peer of parliament, as Speaker of this House, as Keeper of the Great Seal, as Guardian of His Majesty’s conscience, as Lord High Chancellor of England, nay even in that character alone in which the noble Duke would think it an affront to be considered — as a man — I am at this moment as respectable — I beg leave to add I am at this moment as respected — as the proudest peer I now look down upon.”

The plaintiffs’ own witnesses repel the idea that the business in which they were said to have been formerly engaged would have any effect on their credit. Oucullu, replying to the direct question of that tenor, says, “ no, if a man has a good character, his bill would be just as good, even if he had formerly engaged in that business,” and that so far as he could judge the utterance of the contents of the letter had not damaged the plaintiffs’ credit. Yuille’s impression of it was that the statements in the letter were rather derogatory but not serious, and being questioned what would have been the effect of these statements upon the commercial standing of the plaintiffs, answered, “the truth would have been looked into,” and whatever was wrong would have been corrected. The testimony of the plaintiffs themselves fails to impress us with the conviction that they suffered in any other way than delay in getting their authority to draw confirmed, which however annoying, could have a temporary effect only, for so soon as it was seen that their bills were uniformity paid, confidence would be restored. It would require testimony of the strongest kind to convince us that a firm having the business the plaintiffs allege, had lost it because a single letter from some obscure person had cast the aspersions upon them charged as a libel in this case, and we certainly do not find in this record evidence either of the kind or weight requisite to warrant a judgment in the, plaintiffs’ favor.

Judgment affirmed.

Rehearing refused.