text:
    No. 1078.
    Jean Granger vs. Nancy Singleton.
    A judgment dismissing Plaintiff’s demand, without any qualification of language or reserva,., lion such as the ordinary phrase “as in case of nonsuit”, when such a judgment has been rendered after trial on the issues made in the case, will he considered final and de « finitive and form the basis of the Exception of Res judicata in a second suit botween the same parties on the same subject matter.
    APPEAL from the Twenty-First Judicial District Court, parish of Iberia. Fontelieu,J.

    Jo3. A Breaux and P. L. Benoudet for Plaintiff and Appellant.
    B. S. Perry for Defendant and Appellee :
    A judgment dismissing a suit after trial on the merits is a definitive judgment, and is conclusive and final as between the parties; if rendered for matters not involving the merits, or if it be qualified and not absolute, it is not final. Such a judgment is presumed to be on the merits unless it be accompanied by words of qualification, such as “without prejudice,” or “in case of nonsuit.” 3 Wall. Oir. K. 28; 7 Wall. 107 ; Bigelow on Estoppel, p. 108 ; 8 La. 186 ; 1 An. 46 ; 23 An. 618 ; 27 An. 284.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff, by the petitory action, seeks for the recovery of a tract of land situated at a place named Ooteau, in the parish of Iberia, which he alleges to be his lawful property, in the wrongful possession of defendant, and concludes by asking damages from defendant for her wrongful possession of the land in controversy.

A.t the threshold of the case he is met by an exception of res judi-cata, interposed by the defendant, who urges that in a suit instituted in the late parish court of Iberia, and finally decided on appeal by the district court of that parish, between the same parties, for the same tract of land, and on the same issues, the matters in controversy in this case were therein finally adjudicated and settled.

The lower court sustained the plea, and plaintiff appeals.

An- inspection of the record discloses that in both suits the parties are the same, the land claimed is the same, the claim of titles set up by plaintiff the same, the defense is the same, and the judgment rendered by the district court on appeal reads as follows:

“ This case having been regularly fixed for trial, tried on the day fixed, and taken under advisement, and the law and the evidence being in favor of Nancy Singleton, it is therefore ordered, adjudged, and decreed that the demand of Jean Granger, plaintiff, against said N. Singleton, be and the same is hereby dismissed.”

Plaintiff resists the plea on the grounds that having sued for damages in the second suit, and not in the first, the cause of action is - not identical in both actions ; and that the judgment of the court in the first case is not definitive, but merely of dismissal. The gist and primary object of the action in both eases being the recovery of the same property, the issue presented is merely one of title and lawful ownership, and is therefore the same in both cases ; the demand for damages in the second case is merely a corollary of the main proposition, which is a contest for the ownership of the property, and can in no way alter or modify the issue.

Plaintiff further holds, that the judgment set up in bar, by its own tenor purports to do nothing more than to dismiss the action, and that to dismiss an action it is not necessary that the issues of the case should be considered.

But a mere perusal of the judgment satisfies us that the issues were considered by the judge a quo, who distinctly states that the law and the evidence were in favor of Nancy Singleton, the defendant. Tte case Lad been tried under the allegations of title and ownership set up by plaintiff, met by a general denial and special defenses set up by the defendant, who urged her own title to the property, and disputed that of her opponent. No exception had been filed, and no other issue presented. And after trial of the cause on these direct issues, the judge concludes that the law and the evidence were in favor of the defendant.

It is certainly not a violent presumption on our part to conclude that the law which the judge referred to was that which applied to the ease at bar under the issues presented, and that the evidence which he had considered was that which had been offered under the issues presented in the pleadings by the parties in support of their respective allegations. No other conclusion can be -invoked or justified, and it therefore follows that the case had been tried fully on the issues shown in the record, and that the judgment of the court predicated'upon such a trial is final and definitive against plaintiff. It is true that in so many words the judge merely dismisses the action, but then words must be construed with other expressions used in the judgment, and which conclusively indicate the intention of the judge for whose loose and inartistic language in the decree the defendant cannot be held responsible and unjustly made to suffer.

The case was tried on the merits ; under the evidence adduced and considered by the court, no reservation, as in case of nonsuit, or in any way tending to show intention of the judge to leave any point raised by the pleadings untouched or undecided, is made or even hinted at; and we conclude-that the case was finally adjudicated, and that the plea of res judicata was proper, and should be sustained.

It is therefore ordered, adjudged, and decreed that the judgment o£ the lower court be affirmed with costs.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 1070.
    Charles N. Ealer, President, et al. vs. Abraham Millspaugh et al.
    A public officer, to -whom the law prescribes a specific mode of payment of the official monies in liis hands, is not allowed to account for the same by any other disposition and in any other mode of payment than as specifically provided for by law.
    APPEAL from the Thirteenth Judicial District Court, parish of St. Landry. Hudspeth, J.
    John N. Ogden and Kenneth Baillio for Plaintiffs and Appellees :
    The best evidence, in all cases, must be produced,
    The Treasurer of a local Board of School Directors for the years 1870 and 1871 could only disburse the funds confided to him upon the-written official warrant of the President of the Board; and then only for the debts of the ward to which the funds were apportioned. Sec. 23 of Act No. 6, extra session of 1870, and par. 10 of said act.
    The funds apportioned to one ward cannot be applied to the payments of the debts of another ward.
    Secondary evidence is inadmissible until the absence of better be accounted for. Thus: he, who has lost his titles, without being able to show their loss or an overpowering force, cannot establish their existence and-contents by parol. 6 N. S. 208-2G6 ; 8 N. S. 288 ; 4 R. 95 ; 5 R. 163 ; 5 A. 690.
    Lewis & Bro. for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

The board of school directors of the town of Washington claim from the defendant, Millspaugh, as treasurer of said board, and from Elbert Gantt, his surety, the sum of fourteen hundred and twenty-nine dollars and fifty-six cents ($1429 56), received by him in that capacity from the State Treasurer for the use of the public schools of that town.

The answer of Millspaugh does not deny the receipt of the money, but avers that it was paid out by him “ strictly in accordance with the requirements of the la,w.”

The answer of the surety denies any indebtedness.

The evidence shows that the money was received by Millspaugh, and that warrants were drawn by the president of the board on the treasurer against it, amounting to eight h undred and sixty dollars, which were paid by him. On the trial the warrants so paid were not produced, but the non-producticn was sufficiently accounted for. The defendant says that he placed them in the drawer in which he habitually kept his vouchers, and that some time afterward he found that all the papers so put aside had been destroyed by rats. He further states that it was customary with him, on paying such warrants, to indorse them as paid, mentioning the dates of payment and the names of parties to whom paid, and that he did so under his signature in relation to the warrants in question. The warrants were issued in 1871, and by this time must be considered as having been paid. It is not proved, or even alleged, that any one has, since the time of their issuance, presented them for payment. They would, then, be prescribed.

The balance to be accounted for by the defendant would be five hundred and sixty-nine dollars ($569). He attempted to prove how it had been applied. Part of the evidence offered by him was admitted, and the remaining part was refused. Bills of exceptions were reserved both to the admission and to the rejection of the testimony so offered.

We think that the testimony received should have been rejected, and that the evidence refused was properly declined.

Under section 23 of act 6 of 1870, extra session, the president of the board is alone authorized to draw drafts on the treasurer of the parish for money apportioned to the district, to sign all orders on the district treasury, specifying in the order the fund on which they are drawn and the use for which the money is assigned, and under paragraph 10 of the same section, it is provided that the treasurer “ shall pay out the same on the order of the president,” and “ shall pay no order which does not specify the fund on which it is drawn, and the specific use to which it is applied.”

The money in the hands of the defendant, as treasurer, was a public fund, which was by law appropriated for specific purposes and was to be applied in a specific manner after compliance with specific rules. The law contains provisions prohibitory of a different distribution. The treasurer was a salaried public functionary, clothed with specified powers, to be exercised under special rules. He had no right to use the funds in his hands in a manner different from that prescribed by law. A special agent cannot go beyond the limits of his procuration. Whatever he does exceeding his power, is null and void, with regard to the principal, unless ratified by the latter. B. O. C. 3010. If it be true that the amount remaining to be accounted for was applied to the payment of debts due by the School Board, the defendant may have an ordinary action against them for a re-imbursement, but such a claim cannot be asserted or established in the present case, first, because the treasurer has averred that he had applied the funds in strict conformity with law, and, next, because he cannot be permitted to offer testimony contradictory of his pleadings. Even had he made a distinct averment, which he has not, justifying the admission of the evidence offered, the evidence should have been, as it was, refused, inasmuch as its object would have been to prove, as a justification, a distribution of public moneys in direct contravention of a prohibitory law. Such a rule is to be observed ■and enforced particularly in cases like the present one, in which a late public functionary, sought to be made to pay back moneys in his hands, or to account for the same, seeks to show an application of the same in a manner expressly forbidden. Depositaries of public moneys, entrusted with them for specific purposes, and which are to be drawn against in particular forms, and not to be distributed or applied differently, cannot, in exoneration of their liability to account, set up a distribution or application, authorized by themselves, even where the amount did actually extinguish a valid obligation of the depositor. The Board, and not the treasurer, was to determine what application of the funds should be made. A different rule would throw public affairs in a most lamentable state of confusion, ending, possibly, in the great injury of all parties concerned.

We do not consider that the defendant, Millspaugh, has justified the disbursement of the sum of $569, which he was bound to account for as the balance in his hands after payment of the $860 warrants drawn and paid as already stated. His surety, Gantt, is liable with him in solido for the payment to the plaintiff of said sum.

The plaintiff has prayed for judgment against Millspaugh with mortgage, and judgment was accordingly rendered. The bond furnished by him was duly recorded, and operates as a mortgage on his property. The plaintiff and appellee has moved for an amendment of •the judgment, and for allowance of the whole amount claimed in his petition, and for damages. The judgment of the lower court was for five hundred and forty-eight dollars and thirty-one cents, the judge having allowed small items, amounting to the difference between that •sum and five hundred and sixty-nine dollars. The judgment should be Increased by this difference. Ve think it is due to the defendant, Millspaugh, to reserve to him what right of action he may have, if any, to claim in a different proceeding from the plaintiffs this sum of five hundred and sixty-nine dollars. We do not think that damages should 'be allowed for further appeal.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended by allowing plaintiff to recover from the defendants the sum of five hundred and sixty-nine dollars in solido, and that so amended, it be affirmed, with the reservation aforesaid in favor •of Millspaugh, and that atipellants pay costs in both suits.


author: Levy, J.

text:
    No. 1080.
    Catherine E. Randlett et al. vs. M. T. Gordy, Sheriff, et al.
    Minors are not ‘bound for debts contracted by their tutors, even under tbe authority of the-Probate Court and advice of family meetings, ^vlien they arise from purchases made for them on credit and which their means did not justify. They are only bound by investments made by their tutors of the surplus of their revenues, after providing for their maintenance, education or support. Neither the letter nor the spirit of our laws authorizes the involving of min or s'in speculative purchases.
    A confession of judgment will not be avoided and annulled on account of an error of law.
    APPEAL.from the Nineteenth Judicial District Court, parish of St. Mary. Goode, J.
    D. Caffery for Plaintiffs and Appellees :
    First — Where it is shown that minors have no available means, a purchase on credit by their tutor, though sanctioned by a family meeting, whose proceedings are duly homologated, will not bind them. 11 An. 247 ; 5 Rob. 287 ; 4 An. 85.
    Second — A tutor is without authority, by a confession of judgment for and in the name of his wards, to give any force to a transaction not authorized by law.
    Third — When one is sued as a minor, though she is of age when suit is. brought, her consent that judgment be rendered as prayed for, and it is prayed for against her tutor, is not a judicial confession of a debt, and is avoidable for error of law.
    Fourth — When one thus sued, and consenting to such a j udgnient, alleges error of law and fact, relief will be granted on both grounds.
    Rob’t S. Perry for Defendants and Appellants :
    First — A minor being a co-proprietor of a sugar plantation under cultivation, and so inherited from his mother, his whole capital being invested therein, his co-owner’s share being leased, and the co-owner not being interested in the cultivation, can a valid purchase for the minor, through the tutor of the co-owner’s interest, be made to avoid a disastrous judicial sale to effect a partition threatened by such co-owner, on reasonable terms of credit, the annual installments, of which are but comparatively more than the annual rent to that day paid, on the recommendation of a family meeting and authority of court?
    Second — A judicial confession of a debt cannot be avoided on ground of error of law.
    Third — In alternative, if such a sale be declared null, the vendee can recover a reasonable amount for use of his property during the time it was in possession of the tutor and used for the benefit of the minor.
    N. B. Catherine M. appears to have been sometimes called Catherine E.
   The opinion of the Court was delivered by

Levy, J.

This- is an appeal from a judgment of the District Court of the parish of St. Mary perpetuating an injunction prohibiting the sale of certain property seized under an execution under a judgment against the appellees rendered in suit No. 6984- in said District Court, annulling the judgment in said suit and the sale of 29th January, 1872, from Mrs. Frances Barnes to Samuel B. Bandlett, tutor of his minor children.

The. facts disclosed in the record are these: The minors, Catherine, Eleonora, Alice, Samuel, and Warren Bandlett, were owners of the undivided half of a plantation in the parish of St. Mary, inherited by them from their deceased mother; the other undivided half belonged to Mrs. Frances Barnes. Acting under the authority of an order of court ho-mologating the proceedings of a family meeting which recommended the purchase of Mrs. Barnes’ half of the plantation, they became the purchasers of Mrs. Barnes’ half-interest by act of sale of- 29th January, 1872, for the price of ten thousand dollars, of which purchase price one thousand dollars payable on 1st March, 1872, $1500 on 1st March, 1873, and the balance of $7500 in four equal installments of $1875, •each, falling due respectively on 1st of March, 1874, 1875, 1876, and 1877, and bearing eight per cent per' annum interest from the 1st of March, 1872. Six promissory notes were given by the tutor for the several sums. To secure the purchase price vendor’s privilege was retained and special mortgage granted on the property sold. The first payment of $1000 was made by the tutor, who borrowed the amount for that purpose; none of the other notes were paid; and the vendor instituted suit, and obtained judgment on 23d April, 1875, on the notes over-due, and the property was seized under-execution to satisfy by sale for cash to the extent of the overdue notes, and on credit terms corresponding with the maturity of the notes not then due. This suit was brought against Samuel L. Bandlett, natural .tutor of the minors Catherine M., Eleonora V., Alice, Samuel L., and Warren L. Bandlett. There was acceptance of service of the petition, waiver of citation, and confession of judgment by the tutor, in these written words : I confess judgment as therein prayed for, having no defense to make to the demand.” The following acceptance and confession was signed by Catherine E. Band-lett: “I, Catherine M. Bandlett, having reached the age of majority, hereby accept service of the foregoing petition, and waive citation, and consent that the judgment therein prayed for be rendered.” The judgment is against Catherine M. Bandlett and the tutor representing the minors Eleonora, Alice, Samuel, and Warren, jointly, for the amount claimed in the petition, and sets forth: “ By reason of the written confession of judgment of Samuel L. Randlett, natural tutor of Eleonora V.„ Alice, Samuel L., and Warren L. Randlett, and by reason of the written consent judgment of Miss Catherine M. Randlett, and the law and evidence being, furthermore, in favor of plaintiff and against the defendant, it is ordered, adjudged, and decreed,” etc. In their injunction the ap-pellees aver that the judgment rendered in suit No. 6981 against them “ is absolutely null and void; that the law does not permit tutors, whether acting under the authority of .a family meeting or not, to imperil the inheritance of their wards by disastrous speculations in, sugar culture they aver, also, that “ the sale of the undivided half to them is null and void, and the amount, $1000, paid out of their funds on account of said sale, should be refunded, and the property returned to Mrs. Barnes.”

Defendants, in their answer, allege that the sale of 29th January» 1879, was made pursuant to the requirements of and is binding in law ; that the judgment in suit No. 6984 was rendered after due trial and upon due proof, and is of full legal force and effect against the minors and against Catherine E. Randlett, who was of age at the'time she confessed judgment and at the time judgment was rendered against her. The plea of prescription is also made as against the action to annul the judgment and sale. They also demand, in solido against plaintiff in injunction, in reconvention, $600 damages for the wrongful injunction, and $1000 as further special damages; they deny that there was error in law or in fact on the part of Miss Catherine E. Randlett in her confession of judgment. In an amended answer they claim that the sale from Mrs , Barnes to the tutor of minors was for the minors’ interest; and that the use of the undivided half of the plantation by plaintiffs in injunction is worth the sum of $1200 per annum, and that if the Court decides that the sale and judgment are null and void Mrs. Barnes is entitled to recover a yearly sum of that amount from the plaintiffs from 1st of January, 1872, to 1st January, 1881, making a total of $10,800. It is proven that the undivided half of the plantation inherited from their deceased mother constituted all the property and means of the minors, and that it barely sufficed for their maintenance and support. The jurisprudence of this State, settled by decisions of this Court, has. fully establishedi the doctrine that minors’ estates cannot be burdened by purchases made-for them on credit. 11 An. 247 ; 5 Rob. 287 ; 4 An. 85. In the case of Darse vs. Leaumont, 5 Rob. 287, the Court decided to the effect that a. minor is not bound by a purchase which, though ratified by a family-meeting whose deliberations are homologated, exceeds his available-means, and instead of being an investment, is a speculation which may involve him in debt and difficulty. In Williams vs. Chotard, 11 An. 247, it is enunciated that art. 348, O. 0., authorizing purchases for the minor under restrictions to guard against an injudicious investment, must be construed with arts. 341-3. Our whole system of administration of minors’ estates is opposed to an anticipation of their means only purchases on credits.

In 31 An. 1131, Guerin vs. Corlin, the Court said : “Even when the forms of law have been complied with, courts will look behind them to protect minors from loss in matters of contract, C. C. 1866 and 1867. Those who deal with minors must, at their peril, be prepared to vindicate the bona fieles and justice of their demands,” The reasons for the rule in regard to the right of the wife to invest by the acquisition of property beyond her means, may, we think, be well applied to minors, and is to a great extent analogous, as married women, not separate in property, and minors, are both persons not under their own control. In regard to the former, this Court held in Bouligny vs. Fortier, 16 An. 214 : “We have searched in vain in our reports for a case where the right of a wife to invest beyond her means was sanctioned by this Court, but we have, on the contrary, found numerous decisions either setting aside conveyances made to the wife on her failure to show adequate means, or maintaining similar conveyance by reason of such adequate means.”

We are therefore of opinion that minors are not bound for debts contracted by their tutors, even when acting under the advice of homo-logated family meetings, where they arise from purchases or investments made on credit, and where the means of the minors do not justify the contraction of such debts, or where such investments are not of the surplus of their revenues not required for their maintenance, education or support. Such involvement of minors is not authorized by the letter, or spirit of our laws, and should be treated as dangerous speculations, actually prohibited rather than encouraged, the authority to enter into and subsequent ratification of which, by the members of a family meeting, are ultra vires.

The question as to the binding effect or nullity of the judgment against Miss Oatherine E. Bandlett, based upon the written consent or (as it is claimed) confession of judgment made by her in the suit No. 6984 is next to be considered.

The appellee, Miss Bandlett, alleges that' “ she signed the confession of judgment in error of law and fact;” appellants “ deny that there was error either of law or fact, and they conclude that had there been the same, it cannot be a good reason for setting aside and defeating her confession of judgment.” With this conclusion and deduction of the appellants we do not agree. An error of fact will avoid consent and annul a contract, if such error is of the character described in the Code as for instance in arts. 1820-3, C. 0. In this case, the existence or nonexistence of the error which would annul or avoid the confession of judgment must be ascertained by the evidence in the record. Art. 1846, ’ C. C., reads: “A judicial confession of a debt shall not be avoided by an allegation of an error of law, though it may be by showing an error of fact.” Was her confession of judgment made in error of law or of fact? In her amended petition she alleges that “when she signed the confession of judgment,” etc., and “that this error of law and fact was the sole motion that caused her to sign the aforesaid confessed judgment ; ” that “ she did so in ignorance of her rights, and was then induced to believe she was bound by the purchase of the property by her tutor and father.” In her testimony she says: “ When I signed the confession of judgment, I did it through ignorance; when I signed the confession my motive was that I thought I was bound by the notes signed by my father.” Again she says: “ The petition was presented to me by my father for my signature to the confession of judgment. I did not know the full import of the document I signed. I knew it was a ’ confession of judgment.” Thus we have her distinct admissions and acknowledgments that she knew and intended that what she signed was a confession of judgment. We think this formed a judicial confession of a debt contemplated in art. 1846, O. C. The technical distinction contended for by counsel of appellee in his brief does not in our opinion destroy the admissions'and acknowledgments just mentioned. The suit was against the tutor who represented the minors, and was really against them. It is true she was erroneously included among the minors, but she corrected this error by voluntarily making herself a party to the suit, declaring that she who had been thus erroneously made a party had reached her majority, and voluntarily assumed, as a major, the character of defendant in the action. She evidently made the confession in error of her legal rights, and there was “ error of law.” Her statement that she “ was then induced to believe that she was bound by the purchase of the property by her father and tutor,” is too vague, wholly unsupported as it is by any evidence whatever as to what the inducement was to establish an error of fact, such as false representations, deceitful circumstances, etc. The tenderness of the law in regard to minors cannot be successfully invoked for the protection of majors, who, unless disqualified by interdiction, or who are not under their own control, cannot set aside their solemn acts, and relieve themselves from their consequences. Ignorantia legis neminem excusat.

The sale being validated as to Miss Randlett, the re-imbursement Of her proportion of the $1000 paid on account of the purchase price should not be allowed. The testimony, however, satisfies us that this is a just compensation for the rents claimed by appellants, and their re-conventional demand is therefore disallowed.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended in 'so far as it decrees the nullity of the judgment rendered in suit No. 6984, District Court of the parish of St. Mary, and the nullity of the sale of 29th January, 1872, from Mrs. Frances Barnes to Samuel L. Bandlett, tutor, and the perpetuation of the injunction, as to Catherine E. Bandlett, and in these respects it be reversed; and that as to Catherine E. Bandlett the injunction be dissolved, and the appellees have the right to sell her undivided fifth interest in the property seized, and in all other respects, the said judgment of the lower court be affirmed, and that the appellee, Catherine E. Bandlett, do pay one fifth, and the appellants four fifths of the costs of both courts.


author: Poché, J.

text:
    No. 1086.
    W. A. Guilbeau vs. Emile Détiège.
    A late sheriff, still acting until his successor is qualified, has not, in that capacity, sucha legally pecuniary interest in the suit of contestants for the office, as to entitle him to the right of Appeal from the judgment therein rendered.
    APPEAL from the Twenty-Eirst Judicial District Court, parish of St. Martin. Fontelieu, J.
    C. H. Mouton and B. S. Perry for Plaintiff and Appellee:
    First — The court will of its own motion dismiss an appeal for want of pecuniary interest in the appellant. 28 A. pp. 89 and 90.
    Second — The interest which entitles a party to an appeal must be a real existing interest in a particular cause, and not a conjectural one, contingent on the happening of an uncertain event. The State ex rel. A. Agusti vs. J. D. Houston, sheriff, 30 A. 1174; Arrowsmith vs. Bappelge et al. 19 A. 327.
    Edward Simon for the Ex-Sheriff, Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

At the December election of 1879, W. A. Guilbeau and Emile Dótiége were competing candidates for the office of Sheriff of the parish of St. Martin, and Dótiége was returned as elected. Whereupon Guilbeau instituted suit, contesting the validity of his opponent's election on various grounds of nullity, all of which wore subsequently abandoned, and on the following:

That on the day of said election, the commissioners illegally removed the polling place of the 3d ward from the premises of Edouard Guidry, where it had been fixed according to law by ordinance of the police jury, to Mrs. Cornelius Voorhies’ plantation, at a considerable distance from the designated premises, thus invalidating the returns from such ward, which should be thrown out, by which operation plaintiff would be shown to have received the majority of the votes legally cast and returned for sheriff.

The case was tried by a jury, who found is favor of plaintiff Guil-beau, on which verdict judgment of the court was rendered in his favor, decreeing him to have been legally elected sheriff of the parish of St. Martin.

Defendant has not appealed, but an appeal from said judgment has been taken by Charles Gueriniere, Jr., the late sheriff of that parish, and now acting as such until his successor is duly qualified. In his petition for appeal, supported by affidavit, he alleges that he has a pecuniary interest in this suit, and complaining of irregularities in the trial of the case in the lower court, he asks to be allowed to prosecute his appeal as a third party in interest.

Plaintiff and appellee moves to dismiss this appeal on the following grounds:

First. Because appellant has no pecuniary interest in the judgment appealed from, as he has set up no adverse claim to the office in con-testation.

Second. Because appellant’s term of office as sheriff having expired, he must make way for his successor, and it is immaterial to him who that successor is or may be.

Third. Because one not a party to a suit cannot appeal from the judgment therein rendered, unless he has a real, existing, direct pecuniary interest in'that particular suit, or a right to the thing or object forming the subject matter of said suit. No imaginary or conjectural interest is sufficient to maintain an appeal.

Fourth. Because the appeal was not made returnable ten days from the date of the judgment appealed from.

Fifth. For want of citation of appeal on the defendant Détiége.

Sixth. Because appellant in his petition of appeal prays for no judgment that can be rendered.

The question raised by this appeal is purely elementary, and offers no difficulty for its speedy solution.

The rule of law which grants to a third party the right of appeal from a judgment rendered in a suit to which he was not a party, requires him to allege and show a direct pecuniary interest in the controversy ; he must be interested in the defeat of either plaintiff or defendant, or of both ; he must show such an interest as would justify him in law to intervene in the suit before trial and judgment.

Testing appellant’s position under this simple rule, we are at a loss to see or conceive the remotest pecuniary interest which he may have in the contest between plaintiff and defendant.

This suit is to determine who shall be his successor to the office which he holds ad interim, until he is replaced in due course of law. If the judgment appealed from is affirmed, the result is that plaintiff becomes sheriff to the exclusion of appellant. If on the other hand the judgment should be reversed, the consequence would 'be the induction into office of the defendant Détiége, or, in default of him, of the Governor’s appointee. The defeat of both would create a vacancy to be filled by appointment by the Governor. In no possible emergency could appellant derive any advantage, pecuniary or otherwise, from the definitive judgment which could be rendered on this appeal.

In point of fact or of law, his only possible advantage is in procrastination, or in the prolongation of this controversy, pending which he performs the duties and receives the emoluments of the office of sheriff; such a precarious interest cannot be entertained as conferring the right of appeal on a third party.

Feeling, doubtless, the sharp edges of the dilemma on which he is placed, appellant fails to inform us of the grievances caused him by the judgment, and to suggest what judgment we should render, so as to redress his grievances.

He is not interested either in the success of plaintiff or of defendant or in the defeat of both, and between the two he seems to occupy the delectable position of indifference of the ancient matron whose recreant husband was engaged in a deadly conflict with a ferocious bear. His position is clearly defined by the following terse language in plaintiff’s brief:

The only interest Charles Guériniére, Jr., has, consists in preventing both Guilbeau and Détiége, or either of them, from qualifying as sheriff, to continue to receive the fees and emoluments of the office, as acting sheriff, during an indefinite period. This is not an interest in this suit, but an interest to disturb the working of the.State government.

We are clear that appellant has no real personal pecuniary interest in this suit; that his interest, if he has any, is flimsy, contingent, conjectural, and not sufficiently tangible to be adjudicated upon, and that his appeal is a persistent effort to cling to office. 19 A. 328 ; 21 A. 743 ; 27 A. 90.

It is therefore ordered that the appeal herein taken by Charles Guériniére, Jr., be dismissed at his costs.


text:
    No. 1082.
    Letitia Lague, Widow, vs. Vincent Boagni et al.
    A tax-sale of property assessed in the name of another person than the true owner, preceded by notices given to the party assessed and not to the true owner, is absolutely null and void.
    Prescription of two and three years, under the statutes, in such eases, does not bar the claim of the owner for the recovery of the property.
    APPEAL from the Thirteenth Judicial District Court, parish of St Landry. Hudspeth, J.
    E. D. Estilette for Plaintiff and Appellant:

      Prescription — ■
    The prescription of two years (Act No. 101, Legislature 1873,) specially applies to purchasers of real estate sold in satisfaction of judgment for State, parish; or municipal taxes, and who had judicial possession of such real estate for two years preceding the passage of the act. It cures only informalities, not absolute nullities.
    The prescription of three years (Act No. 105, Legislature 1874.) is contained in a paragraph violative ofr art. 10 of Constitution of 1868. If not itself unconstitutional, it does not apply to absolute nullities. A title absolutely null cannot be the basis of prescription. xO L. pp. 552 and 547 ; 7 M, pp. 379 and 406 ; 3 B. p. 223 ; IY. B. p. 201; IV. N. S. p. 224.

      Estoppel — ■
    The acquiescence in a sale under execution, which would prevent a party from claiming his immovable, ought to be very clearly shown. 23 A. p. 138.
    Lewis & Bro. for Defendant and Appellee :
    Any action to invalide a tax-sale is prescribed by three years.
    He who induces another to purchase his property at a tax-sale, or who consents to and ratifies such á sale after it is made, either expressly or tacitly, is estopped from contesting its validity.
    Such a one may bring an action of redemption, but cannot sue to annul the sale.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action to annul a tax-.sale, on the following main grounds:

First. The property was not assessed in plaintiffs name, but in the name of other persons to whom it did not belong.

Second. The assessment rolls were not made in the manner specified by law.

Third. The proceedings coercive of the payment of the taxes said to be due and conducive to the sale, were not carried on contradictorily with the plaintiff, but against other parties, not representing her.

Fourth. The taxes claimed were illegally assessed ; they exceed the limit fixed by law, and are oppressive.

In bar the defendant first pleads the prescription of two and of three years, and next urges that plaintiff is estopped from attacking the sale, because she induced him to purchase the property, and subsequently ratified the sale. The defendant further avers that plaintiff’s action, if any she have, is one of redemption.

The case was tried on those preliminary defenses. The lower court overruled the plea of prescription, and sustained the estoppel. The case-was dismissed with a reservation of plaintiff’s right to institute an action of redemption. From such judgment, the plaintiff appeals.

The plea of prescription is predicated first upon, sec. 2 of act 101 of 1873, and next upon sec. 5 of act 105 of 1874

From the terms of the last enactment, the plaintiff was authorized to consider, if she was aware of the expropriation proceedings, that she could not arrest the sale, being expressly prohibited from doing so, and that her sole relief or remedy was an action to invalidate the sale.

The plaintiff was justified, taking her allegations for true, as they must, in this proceeding, in ignoring the steps taken for the sale of the property said to be liable for the taxes in question. She avers that it stood in her name on the proper public records, whereon conveyances and transfers of real estate are entered. It was the duty of the assessors to place it in her name on the rolls which the law requires them to prepare, and which are to contain the names,of the true owners of real estate, upon which taxes are to be levied. In case of non-payment of taxes legally assessed and due, it was incumbent on the tax-collector to proceed against the true owner of the land so assessed.

The assessment of the property in question in the name of P. A. Nezat & Co., and the proceedings against them to enforce payment of the taxes alleged to be due, are not only irregular, but absolutely null, and, therefore, not binding on the plaintiff, the real owner. 15 A. 15 : 19 A. 185; 26 A. 730; 28 A. 537 ; 6 ST. S. 348; 7 L. 50; 10 L. 283 ; 13 L. 205 ; 4 A. 248 ; 6 A. 542 ; 8 A. 19 ; 10 A. 329 ; 14 A. 210.

The title of the plaintiff could not be divested in such a manner.

The provisions of the law relative to expropriation, on account of non-payment of taxes, have always been strictly construed. It has ' never been held that one could be deprived of his title to property, unless he were constructively or actually notified of proceedings for that purpose. It may well be that a notification in person or at domicile can be dispensed with, and that a mere advertisement may be deemed sufficient to convey proper information, but it is essentially necessary, whatever the form or the mode of issuing or serving the notice be, that it be directed to the real owner of the property, and not to parties who have no title to it. If the property was improperly assessed to whom it does not belong, instead of being so, to the true owner, the irregularity is imputable to the officers representing the government, whether State, parochial, or municipal. The validity of proceedings to coerce payment of taxes levied upon property assessed in that manner are contingent upon the sufficiency of such assessment.

The act relied upon, as justifying the defense of prescription, has the same features and the same object as that relative to monitions in cases of judicial sales, is subject to the same constructions, and cannot be accepted as intended to perfect titles in ■ cases like the one at bar, in which the gravest irregularities and absolute nullities have been propounded, and were known to the party claiming title under the tax-sale.

It is a matter of serious doubt whether the defense of estoppel set up by the defendant can stand on its face as amplified by the evidence. Its object is to exclude from the revendication of her property one who charges that her title to the same was never legally divested from her. The facts upon which this defense is based are said to be that the plaintiff has, previous to the sale, induced the defendant to purchase the property, and has subsequently ratified the sale: The evidence offered in support of that plea is not in writing. It consists merely of oral testimony. It does not appear to have been objected to, and might, therefore, be entitled to effect, were it sufficient in itself. We have given it a careful attention. It is vague, conflicting, unsatisfactory, and certainly not such as should be required to substantiate such a defense. Parol testimony, if admissible, in such a case, for such a purpose, must be at least as precise and convincing as written evidence itself should be, otherwise it does not supply it.

It is worthy of notice that, these defenses, termed “ exceptions ” were expressly advanced as an “ answer.” Were we to consider them such, we should, in strict pleading, now end this litigation with a judgment for the plaintiff as prayed for ; but, as we apprehend that the word was used by inadvertence, and as it is possible that the defendant may have, rights which may thereby- be set at nought, we make it our duty, in furtherance of the ends of justice, to dispose of the case before us otherwise.

It is therefore ordered that the judgment of the lower court, overruling the plea of prescription, be affirmed, and that in other respects it foe reversed.

It is further ordered that the plea of estoppel be overruled, and that the case be remanded to the lower court for further proceedings according to law ; the defendant to pay costs in both courts, from the filing of the exceptions.


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    No. 1108.
    Board of Liquidation of the City Debt vs. the City of New Orleans.
    Under the laws, 'which mate it the duty of the City Council of New Orleans to turn oyer to the Board of Liquidation of the City Debt, all the property, real and personal, of the City, to be by said Board sold or disposed of, and the proceeds applied to the payment of the City Debt, — the City Council cannot sell or grant the right of way through any of its streets to a Railroad Company, unless it is for a consideration in Cash or otherwise, which can be realized, and turned over to the Board of Liquidation and by them applied to the payment of the City Debt.
    The power of granting this right of way or franchise, is inherent in the City itself and not susceptible of transmission to the Board of Liquidation; but when the power lias been exercised hy the City, the result of it, the franchise, then becomes property in the legal sense of the word, and the price, consideration or proceeds of the same should, under the statutes, be transferred to the Board of Liquidation.
    ^ PPEAL from the Third District Court, parish of Orleans. Monroe,

    Henry C. Miller and Branch K Miller for Plaintiffs and Appellees.
    E. Howard MoOaleb, City Attorney, and E. H. Earrar, for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

The Court is called upon to determine in the present controversy, in whom is vested the power of disposing of the right of way through certain streets in the city of New Orleans.

It appears that on the 9th of June, 1880, the Council of said city passed ordinance No. 6523, authorizing the Administrator of Commerce to advertise in the official journal for sealed proposals for the extension of any one of the railroad lines above Canal street, through certain streets, below Canal street, the extension to be made under and according to specifications on file in the office of said Administrator.

Belying upon Act No. 133 of 1880, the object of which is to liquidate the indebtedness of the city of New Orleans, and to apply its assets to the satisfaction thereof by the agency of a syndicate, and grounding themselves more particularly upon sec. 5 of that law, as also upon sec. 10 of act 31 of 1876, the plaintiffs, constituting the Board of Liquidation created by the act of 1880, claim that they alone, and not the city, have the power of disposing of the right of way in question, and this on such terms as they may deem favorable. For the preservation of this power, they have applied for and obtained an injunction forbidding the city and the administrators thereof from carrying out the provisions of the ordinance above. The prayer of their petition concludes by asking : “ that it be decreed that said City Council have no power to sell or dispose of said franchise, and that the power is exclusively in this Board.”

The city has filed an appearance denying the pretensions of the plaintiffs, contending that she alone has the power of disposing of such rights, and that she can do so in the mode proposed by the ordinance, which does not contemplate payment of money.

The lower court, for reasons orally assigned, rendered judgment perpetuating the injunction, so as to prohibit the city “from selling or disposing of the franchise to run a railroad through Chartres street, and other streets named, as contemplated in the ordinance No. 6523, except on the condition that the sale be made for cash, and the cash turned over to the Board of Liquidation of the City Debt, to be applied as directed in Act No. 133 of 1880.”

Oñ appeal by the city that judgment is now before us for revision; claiming to represent the bonded debt of the city, the plaintiffs say, that by section 10 of Act 31 of 1876, known as the “ Premium-Bond law,” it is provided that “ no city property, of any kind, shall hereafter be sold or conveyed in any manner, except the proceeds thereof be applied to the reduction of the bonded or floating debt; ” that by act 74 of 1880 provision is made for this last debt; that by section 5 of Act 133 of 1880, it is provided “ that it shall be the duty of the city authorities, as soon as possible after the organization of the Board of Liquidation of the City Debt, to turn over and transfer to the said board all the property of the city of New Orleans, both real and personal, not dedicated to public use, and the Board of Liquidation shall be and is empowered and authorized to dispose of said property on such terms and conditions as may be deemed favorable, the proceeds of such sale or sales to be deposited with the fiscal agent of the Board, at credit of “ city debt fund.”

The theory upon which the plaintiffs proceed is :

First. That the power of disposing of the right of way which the city proposes to exercise, is property;

Second. That it is property within the meaning of Acts 31 of 1876 and 133 of 1880 :

Third. That being such, they have the exclusive power of disposing of such right.

I. Is the power to dispose of the right in question property?

The city of New Orleans is a political corporation, a State functionary, susceptible of acquiring rights and of incurring obligations. It can own and acquire property. It can incur debts and liabilities. In 1870 all the rights of the previous city were transferred to, and all the obligations of that corporation were fastened upon, the new organization then created. The rights so conveyed emanate from the State, which, in the exercise of its sovereignty, has delegated them. They have not on that account lost their character, which, on the contrary, was preserved in its integrity. Among the rights thus delegated and conferred, is found that of regulating and making improvements to the streets, public squares, wharves, and other public property, and of regulating the proper government of locomotive, passenger, and street cars which run within the limits of the city, in other words, the power of regulating the police of said city, in all its departments, particularly as concerns the streets and avenues within corporate boundaries, which is an attribute of sovereignty which it alone can exercise.

Streets, public walks, and quays are things which belong in common to all the inhabitants of cities and other places, and to the use of which all the inhabitants of a city or other place, and even strangers, are entitled in common. R. C. C. 453, 454, 458; Brown vs. Duplessis, 14 A. 854-7.

State ex rel. Gas Light Co. vs. New Orleans, not reported, No. 7661, Docket Supreme Court in New Orleans.

The power of granting the right of way, in embryo, is valuable. It could not be transferred by the city, unless the city herself could have exercised it. Nemo plus juris ad alienum transferre potest, quamipse habet.

It is true that it cannot be the object of any appraisement, because, in itself, it is absolutely barren and unproductive. It is only when it has been exercised and consummated, and when it has become the object of a contract, that the privilege transferred acquired a value susceptible of appreciation.

The mere right to grant the privilege, as long as it lias not been exercised and transferred, has never had, and never can, acquire an intrinsic value. It is only the result of the exercise of the right which, upon'springing into existence, becomes property, and hence acquired a value nominal or real. It then becomes what is known and termed a franchise, which has an incontestable value, and is property even subject to taxation.

State ex rel. Gas Light Co., already cited; Gas Light Co. vs. Board of Assessors, 31 A. 475; Burroughs on Tax. 113, 167; Cooley’s Const. Lim. 281; 2 Wall. 209 ; 1 Redfield, 330 ; 45 Barb. 138 ; U. S. Digest, vol 5, p. 247 ; No. 33-; 6 Howard, 534.

To make the exercise o£ such, power valuable, it requires that the privilege be actually transferred, and that the rights which it confers be accepted; it demands the concurrent and consummated action of both transferrer and transferee, precisely as it takes the double action of heat and water to produce or create steam, which is only the result, the creature, of such action.

The power to dispose of a franchise, being an attribute of sovereignty, is one which no intrinsic authority can put in motion, and which requires as a primum mobile the volition of the being in whom it was vested, which is, in the present instance, the city of New Orleans. It is not susceptible of transfer. It is a delegated power, which, under no circumstance, can be delegated in embryo, without express and special authority from the grantor. Delégala liceopotestas non poiest delegari.

II. The exercise of such power, when consummated, can create property, which, when so engendered, forms part of the property, the nature and extent of which was in legislative contemplation when Acts 31 of 1876 and 133 of 1880 were framed and adopted.

Considering the financial embarrassment of the city, its inability to meet its bonded debt, the Legislature first, in 1876, placed a restraint upon the powers of alienation of the city, to prevent it from disposing of any of its property susceptible of valid conveyance, and that body, in 1880, next determined and fixed the character of that property, when it enacted that the city authorities should transfer to the Board all the real and personal property of the city not dedicated to public use, to be disposed of by that Board, with the restriction, however, that under the spirit and letter of those two laws what proceeds may be realized, if any, shall be applied to the entire bonded debt of the city, whether evidenced by premium or other unfunded bonds. •

The language used in section 10 of Act 31 of 1876 was intended to comprehend not only property in esse, but also property in posse, of all and any description, not dedicated to public use, accruing to the city of New Orleans, susceptible of alienation.

III. The power of disposing of the right of way in question was in ■iesse at the adoption of those acts, but it is not such as can be transferred to the syndicate, under the operation of the fifth section of Act 133 of 1880.

Had the city authorities, anxious to carry out the provisions of section 5 of Act 133 of 1880, actually, by authentic act, transferred to the Board of Liquidation the power of granting rights of ways, and the Board had accepted the transfer, can it be claimed that the Board under that transfer would have had the right of disposing of the rights •of way? No sane mind would answer in the affirmative. Why? Because, as the right is inherent in the corporation exclusively, it is intransmis-sible. If it could not be transferred, it remained with the city, which is still clothed with it, to the absolute exclusion of the plaintiffs, and it retains a character of alienability.

These acts, it is true,. are apparently couched in verbis presentí, but must be construed keeping in view the condition of things at their adoption. The Legislature must have had the intention, by using the broad language found in them, of including the result of the exercise of ■such powers, granting such rights, as property. This intention has already been the object of judicial comment.

In the case of the State, on the relation of the Gas Light Co. vs. New Orleans, above cited and not yet reported, the city has so construed Act 31 of 1876, section ten, and our immediate predecessors have viewed the matter in the same light. We do not feel authorized to differ with them in their conclusion, particularly as it is based on the judicial declaration of the city herself. It can, therefore, well be claimed that such powers were included among the property which the city was prohibited from conveying, unless the proceeds were applied to its entire bonded debt.

The city authorities, therefore, seek unduly to dispose of the right •of way in question by fixing terms and conditions which are not money, or obligations susceptible of being reiucei to money, and of being applied to the extinction of the entire city’s bonded indebtedness. We therefore feel justified in interfering with their action.

An examination of Act 74 of 1880 satisfies us that provision having been made for the payment of the floating debt, which was, incidentally only, embodied in section 10 of Act 31 of 1876, the plaintiffs represent the bonded debt under Act 133 of 1880.

The Board of Liquidation cannot claim any control over the propriety of the exercise of a legislative discretion on the part of the City Council to dispose or not of such rights of way, and can exercise none themselves. They have a standing in Court to prevent the exercise of that power to the injury of the bondel debt.

The decretal of the judgment under revision does not express fully 'our views, and requires an amendment, which modifies its form, but does not strictly a-lter its substance.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be amended so as to read as follows:

It is ordered, adjudged; and decreed that the injunction herein issued be made perpetual, to the extent of forbidding the city of New Orleans from carrying out ordinance No. 6523, but without prejudice to.the right of the city of' disposing of the right bf way in question in cash, or otherwise, the proceeds of such disposal, if any, to be deposited with the fiscal agent of the Board, at credit of the “ city debt fund,” to be applied to the extinction of the bonded debt of the city, whether evidenced by funded or unfunded bonds of said city.

It is further ordered and adjudged, that the petition of the plaintiffs praying that it be decreed that the power of disposing of such’ right of way is exclusively in them, be rejected, with judgment in favor of the defendants.

It is further ordered that the costs in both courts be paid by the plaintiffs and appellees.


author: Todd, J.

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    No. 1105.
    Vincent Boagni vs. T. C. Anderson et al.
    An amendment alleging a want or failure of consideration, cannot be allowed, after tbe general issue. Stare decisis.
    A second amended Answer pleading Compensation,' should, be allowed to be filed, if the debts pleaded in compensation, are described with sufficient precision.
    A stipulation by the maker of a note, that he will pay such Counsel fees as is customary, in case of legal proceedings, etc., is not an unconditionalfobligation to pay a specific sum of money, which deprives him of his right to a trial by jury.
    APPEAL from the Thirteenth Judicial District Court, parish of St. Landry. Hudspeih, J.
    Henry L. Garland for Plaintiff and Appellee:
    1. When sued on a note, one having filed a general denial, cannot amend by pleading want of consideration, nor compensation. 23 An. 142,
    2. When plea in compensation is made, it must|be made according to the same provisions oE law as govern in drawing petitions. 28 An. 109.
    Lewis & Bro. and A. Yoorhies for Defendants and Appellants :
    1. Plaintiff suing for attorney’s fees,?as customary in case of law proceedings, the demand is unliquidated and not for an unconditional obligation to pay a specific sum of money: defendants are entitled to trial by jury, without affidavit and without special defenses.
    2. Defendants having pleaded error in the contract for a part, and payment and compensation supporting these special defenses, with affidavit, they are entitled to jury trial.
    3. Defenses of error, payment, and compensation can be filed at any stage of the proceedings, being peremptory exceptions, founded on law. They can be coupled in the original answer, with the general issue, or interposed subsequently in an amended answer.
    4. Sureties cannot be held, by mere implication, beyond the stipulations made by themselves.
    O. P. 345-6; 19 An. 207 ; 6 La. 458 ; 1 La. 318.
   The opinion of the Court was delivered by

Todd, J.

This is a suit on two promissory notes for $1846 19 each, signed by the defendant, payable to the order of the plaintiff, and for ten per cent on the amount of said notes, claimed as the attorney’s fee under the stipulations of a written contract set forth in the petition.

The defendants first pleaded the general issue.

They subsequently offered an amended answer which alleged a par- ■ tial want and failure of consideration. This want and failure of consideration was alleged to result from the fact that at the time of the execution of the notes, the plaintiff was indebted to one of the defendants, Thomas 0. Anderson, in several sums, which are set forth in the answer, paid out to different persons on the written orders of the plaintiff.

It was also averred that plaintiff was indebted to said Anderson $1200 on account of mortgage paper of the said Anderson which the plaintiff had in his possession, and was further indebted to him in a further amount not stated, for rents collected by him and not accounted for, which alleged indebtedness was pleaded in compensation.

In this amended answer, which was sworn to, the defendant prayed for trial by jury. It was objected to by plaintiff’s counsel, and disallowed by the court.

The next day after its rejection, the defendants offered another amended answer containing the same allegations of indebtedness on the part of the plaintiff to the defendant T. C. Anderson, and pleading all these same in compensation.

This, too, was objected to by plaintiff’s counsel, the objections sustained, and the amendment disallowed.

There was judgment for the plaintiff, and the defendants have appealed.

They assign as errors before this Court the several rulings of the judge a quo mentioned, and his refusal to grant a trial by jury.

In the refusal to allow the first amended answer offered, we do not think the court erred.

If the question was an open one, we might hesitate before declaring that an amendment alleging a want or failure of consideration could not be allowed after a plea of the general issue or answer of general denial, but it has been expressly so decided in several cases, and upon the principle of stare decisis we cannot disturb these repeated rulings. 2 L. 207 ; 11 L. 74; 28 A. 109.

In regard to the second amended answer offered, which contained only pleas in compensation, we think the judge erred in refusing it in toto. It should have been allowed to the extent of the amounts pleaded in compensation, where the claims thus pleaded were described with sufficient accuracy as to amount, dates, and cause of action, etc., and the rest disallowed. The claim mentioned as resulting from plaintiff’s-possession of the mortgage paper of the defendant amounting to $1200» and that growing out of the alleged collection of rents, amount $200, are not sufficiently set forth and described, and should be excluded from the amended answer, unless the palpable defects respecting them are cured by the proper proceeding. It is true that this may restrict the amended answer to those items of indebtedness which were alleged to exist anterior to the execution of the notes, which fact might subject them to a reasonable suspicion ; still this fact alone is not sufficient to reject them from the answer, and preclude any inquiry into them, as the judge a quo seems to have concluded.

¥e think, too, that the defendants were entitled to a trial by jury.

Apart from any thing contained in the amended answers, there was> one part of the plaintiff’s demand which was not fixed in amount, supported by an unconditional obligation to pay. We refer to the attorney’s, fee claimed. The written contract, which we find in the record, under which this claim is made, stipulates not that the defendant is to pay a certain specified commission on the amount sued for, or any fixed sum whatever, as attorney’s fee, but merely recites, in the language of the act, that “ Mr. Anderson promised to pay lawyers’ fees, as customary in case of law proceedings to enforce the payment of his indebtedness.”' And we find that upon the trial of the case parol evidence was introduced to show what was a reasonable and customary fee. We think that this presented an issue which the defendants were entitled to have tried by jury.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided, and reversed, and that this case be remanded to be proceeded with according to law and the views we have herein expressed, plaintiff to pay costs of appeal.


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    No. 1079.
    Board of Trustees of New Iberia vs. E. D. Migues.
    The town of ITew Iberia cannot impose a license-tax on draymen, because tbe power to do so was not granted to it by the Legislature,
    APPEAL from the Second Justice Court, Sixth Ward, parish of Iberia. JZaclcer, J.
    C. O. Delahoussaye for Plaintiffs and Appellants.
    W. B. Merchant for Defendant and Appellee :
    A municipal corporation can impose no tax on any occupation, unless authorized to do so by its charter. 29 An. 261; Cooley’s Const. Limit. 193 and 387 ; 29 An. 261.
   The opinion of the Court was delivered by

Todd, J.

Suit was brought by the Board of Trustees of New Iberia before a justice of the peace of said town, to recover of the defendant seven dollars and fifty cents as a license-tax on his occupation as dray-man within the corporate limits of said town during the year 1879.

The defendant excepted to the action, substantially on the ground that the occupation of drayman was not included in the objects of taxation enumerated in the act of the Legislature incorporating said town, and that, therefore, the ordinance imposing said tax or license was illegal.

There was judgment for the defendant and sustaining the exception, and plaintiffs have appealed. Act 107 of the acts of 1868, being an amendment of the original act of incorporation, provides :

That the trustees “ shall have power to raise money by taxation on all property, movable and immovable, provided the same be equal and uniform in value, and by taxing merchants, retailers, grog-shops, billiard-tables, hawkers, peddlers, shows, circuses, menageries, concerts,' etc.”

It is a well-settled principle of law that the power of a municipal corporation relating to the imposition of taxes and licenses must be exercised within the clear scope of the language of the charter by which this power is conferred.

On this subject, Cooley, in his work on Taxation, page 387, says :

“ The general rule that the powers of a municipal corporation are to be construed with strictness, is peculiarly applicable to the case of taxes on occupations. It is presumed the Legislature has granted in plain terms all it has intended to grant at all. If it is not manifest that there has been a purpose by the Legislature to give authority for collecting a revenue by taxes on specified occupations, any exaction for that purpose will be illegal.”

Our immediate predecessors in the case of the Mayor et al. vs. Gustave Roth, 29 A. 261, have expressly sanctioned this doctrine. In that case the Court says:

“ The charters or acts of incorporation of municipal corporations within the State are the measure as well as the source of their powers.

“No general power to tax occupations, trades, and professions is conferred by the act, and neither the keeping a warehouse or running a dray is“among the objects of taxation enumerated in the charter.”

It is certain that the language of the charter in this case, which we have quoted above, does not specify or mention expressly the occupation in question, nor can the grant of authority be implied from the words et cetera, with which the enumeration in the act closes. If such power could be conferred by implication, from the terms referred to, it could not be reasonably implied that the power to tax extends to all occupations indiscriminately, but only to those of a like nature with those" expressly enumerated. But the authorities referred to . negative the idea that the power in municipal corporations to tax occupations can exist or be conferred by implication, and in this we concur.

It is therefore ordered that the judgment appealed from be affirmed with'.costs.


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    No. 1084.
    Mrs. Edmond Guidry vs. James E. Broussard.
    Tlie tax sale of tlio separate property of the wife, erroneously assessed in the name of the husband, is null and void, and she may recover it without tendering to the purchaser the amount of the taxes, costs and damages; hut he is entitled to recover from her the amount paid by him on account of taxes due on the property, and by which payment she has been benefited.
    APPEAL from the Twenty-Fifth Judicial District Court, parish of Lafayette. Mouton, J.
    John Clegg for Plaintiff and Appellant.
    M. E. Girard for Defendant and Appellee.
   The opinion of the Court was delivered by

Todd, J.

This is a suit to annul a tax-sale.

The grounds of nullity alleged are substantially these:

First. That there was no assessment of the property in the name of the plaintiff, the true owner, but it was assessed in the name of another.

Second. That there was no sufficient description of the property.

Third. That no demand for the payment of the taxes was ever made, nor notice of seizure of the property given.

Fourth. That there was no division of the land into lots before its sale.

The defendant in his answer admitted the sale, but denied the nul-lities alleged, and excepted to plaintiff’s right of action, because no tender had been made to the defendant of the taxes, costs, etc., due on the land before the institution of the suit.

There was judgment for defendant, and plaintiff has appealed.

The property sold at the tax-sale was acquired by the plaintiff in 1855, by virtue of an adjudication made under the advice of a family meeting, it having belonged to the community that existed between her and her first husband, Edouard Brasseux. This property she continued to possess as owner from the date of its acquisition to the institution of this suit, May 17,1877.

The property having been indisputably the plaintiff’s, the question we have to determine is whether she was divested of the ownership of it by the tax-sale relied on by the defendant. No one can be deprived of their property except by due process of law. A long line of decisions of this Court has established the doctrine, so often asserted, that even its mention seems trite, and its re-assertion unnecessary, that the validity of a tax-sale must rest upon a strict and rigid compliance with all the requirements and formalities of law relating to the assessments, and all other proceedings pertaining to such sale.

The question arises, does the evidence in the record show such compliance in this case ? It has been held that the assessment is the very basis or foundation of the proceedings relating to tax-sales, and has been very properly likened to a judgment which must precede a sheriff’s sale ; and that a proper and legal assessment was just as essential to the validity of the one as the existence of a judgment was to the validity of the other. 30 A. 176; 15 A. 15; 19 A. 184.

In this ease, although the plaintiff was the undisputed owner of the land, yet it is shown that it was not assessed in her name, but assessed as the property of her second husband, Edmond Guidry, now, also, deceased, who had no title or claim to the land, whatever. Was such an assessment a proper or legal one ?

In the case of Delaroderie vs. Mrs. Anna Hillen, 28 A. 537, the Court said: “It is not in the power of an assessor to vest title in any one by simply •entering land in the assessment roll in the name of such person. A tax collector’s deed of sale is prima facie evidence of title; but the property must have-belonged to the person to whom it was assessed.”

In the case of Thibodaux vs. Keller, 29 A. 508, the property was-assessed and sold as that of J. N. Keller; it was showii to have belonged to Keller & Oo., of which ñrm J. N. Keller was a partner, and the sale was annulled on this account.

When we look at the deeds, first to the State, to which the property was adjudicated, and from the Auditor to the defendant, conveying the-title that the State purports to have acquired at the first adjudication* we find that they only purport to convey all the right, title, and interest of Edmond Guidry in and to the property in question, and these deeds* contain a description differing from the very meagre description mad© in the assessments.

It is, however, urged that the adjudication to the State was conclusive against the plaintiff, and left her the right only to redeem the property within the time prescribed by law. We cannot assent to this doctrine. If the adjudication to the State was not preceded by a strict complianc© with the law necessary to divest the ownership of the plaintiff in the land, the State acquired nothing by the adjudication as relates to the-right or title of the plaintiff in the property, and it could convey to the defendant no better right or title than it acquired, and that only purported to be the right and title of Edmond Guidry, which we have shown was no right whatever.

This want of a proper and legal assessment of the property was* then, a fatal defect in the proceeding, sufficientto render the adjudication and sale null and void. See, also, case of Letitia Lague vs. Vincent Boagni, recently decided.

It is, however, urged that the failure on the part of the plaintiff to tender to the defendant the amount paid by him for the taxes, costs*, and damages, is an obstacle to her right of recovery, and we are cited, to many authorities in support of this proposition.

We have reviewed these authorities thoroughly, and we are satisfied' that the principle invoked has been in some cases pushed too far. It is-based on the equitable principle, that no one should be permitted to enrich himself at the expense of another, and that he who seeks equity must, do equity. We fail to see in this ease what principle of equity would require the plaintiff to offer to return an amount which she has never-been adjudged or assessed to pay, for which payment had never been demanded of her, and a large portion of which accrued and was charged against her as damages caused by proceedings conducted in utter disregard of her rights and the requirements of the law.

But we find an adequate reason why the exception of the defendant invoking this principle fails to hold good in this case. By referring te» the assessments in the record, we ñnd that this property was assessed to Edmond Guidry, together with other land and personal property belonging to him, and the sale purports to have been made to pay all the taxes assessed against the entire property.

If a tender was necessary, it would have been difficult, if not impossible, to tell the precise sum that was to be tendered. To entitle a party to insist on a tender, the amount must, in legal contemplation, be made to appear definite and certain, so that the act to be done and the duty.performed, if required, might be intelligently performed. We had occasion to pass upon this point in the case of Miller vs. Montagne, recently decided, in which we held that under a state of facts relating 'to the want of certainty and confusion in an assessment, and the consequent uncertainty in the amount, if any, to be tendered, similar to those here presented, that a tender was not necessary.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be annulled, avoided, and reversed, and there be judgment in favor of the plaintiff annulling the adjudication to the State, and the sale to the defendant complained of, and decreeing plaintiff to be the owner of the land in controversy, reserving to the defendant the right of action to be re-imbursed any amount he may have paid on account of the taxes against said land inuring to the benefit of the plaintiff, defendants to pay costs of both courts.


text:
    No. 1102.
    B. Derbes et al. vs. D. Romero et al.
    An unrecorded act of sale of lands cannot affect third persons. '
    APPEAL from - the Twenty-First Judicial District Court, parish of Iberia. Fontelieu, J.
    Jos. A. Breaux, Martin Voorhies and Félix Voorhies for Plaintiffs and Appellants.
    DeBlanc, Perry & Simon for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiffs allege that on the 15th of August, 1836, Antoine Bruno, as the duly constituted agent of Miss Estelle Fon-tenelle, as per power of attorney dated 21st July of the same year, sold unto J. B. Derbes, whose heirs and representatives they claim to be, certain real estate described in their petition; that their author has never disposed of said land, which is now in the possession of the defendants, who are twelve in number, and they pray to be recognized as owners of that property, contradictorily with the defendants.

The defendants answer, that they have acquired the real estate in question, after cantlement, at different dates in August, October, December, 1870, and January, 1871, from Alcibiades DeBlanc, as the duly constituted agent of said same Miss Estelle Fontenelle, as per power of attorney dated 27th June, 1870. As a matter of precaution, they called Miss Estelle Fontenelle in warranty. She has appeared pleading special defenses, among which, one of “ knowledge and consent ” on the part of plaintiffs, which is set up as tantamount to a ratification by them of the sales made by her agent to the defendants of the real estate in dispute by receiving the proceeds.

The plaintiffs have offered in proof the authentic act of sale to J. B. Derbes by Bruno, agent of Estelle Fontenelle, on the 15th August, 1836, to which the power of attorney is said to be annexed. The certificate attached to the copy in evidence shows that the act was properly recorded on the 28th of April, 1874, in the office of the parish recorder of the parish in which the property sold is situated.

The defendants have each and all offered in evidence the acts of sale made to them by DeBlanc in August, October, and December, 1870, and in January, 1871, as also the power of attorney given him by Miss Estelle Fontenelle on the 27th of June, 1870. To those acts are severally attached certificates showing the registry of each and all of them in 1870 and 1871, at specific dates, which it is superfluous to mention.

The act under which plaintiffs claim, though executed in 1836, was not recorded until 1874. It was in 1870 and in 1871 that Judge DeBlanc, as the agent of Miss Estelle Fontenelle, sold to the defendants the property in contest. The unrecorded sale in 1836 to Derbes was not binding on the defendants, who were not parties to it, and who could well ignore the same as fully as if it had never been passed. They could, there! ire, acquire, as they, did, a valid title to the property sold them. The proper recording of their sales entitled them to a preference over the plaintiffs.

This view of the case dispenses us from passing upon the motion to dismiss the bill of exceptions and the special defenses presented by the defendants and warrantor.

It is therefore ordered that the judgment appealed from be affirmed with costs.

Mr. Justice Poché recuses himself, having been of counsel.


text:
    No. 1071.
    Robert S. Wilkins vs. Elbert Gantt.
    Under Article 81 of tlie Constitution of 1879, this Court will dismiss the Appeal when the real amount in dispute, exclusive of interest, is less than $1,000, as shown hy the Becord, though the Plaintiff's Petition claims more than that sum.
    ÁPPEAL from the Thirteenth Landry. Hudspeth, J. Judicial District Court, parish of St.
    John N. Ogden and M. D. Kavanagn for Plaintiffs and Appellees.
    Lewis & Bro. for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

Plaintiff moves that this appeal be dismissed, on the ground that we have no jurisdiction rattone materice, for the reason that the matter in dispute does not exceed one thousand dollars, exclusive of interest.

He sues on an open account and on a promissory note, both of which are annexed to his petition, and made part thereof. •

He alleges that his account amounts to $677 68, and his note to $347 89, which amounts added together make up the total sum of $1025 57.

But by inspection of the account annexed to his petition we find that the principal of plaintiff’s account is in the. sum of $593 62 ; and that to make it reach the sum of $677 68 claimed by plaintiff, interest on said sum of $593 62 at the rate of five per cent for two years and ten months, amounting to $84 06, ig added thereto.

Leaving aside the interest of two years, inadvertently or erroneously inserted in the capital of his demand by plaintiff, we find that the action is based on a balance of account in the sum of $593 62, and on a promissory note for $347 89, which two items, exclusive of interest, sum up together the aggregate of $941 51, which is not sufficient to vest jurisdiction in this Court.

Now, article 81 of our Constitution is clear and unambiguous, and unequivocally confines our jurisdiction to cases where the matter in dispute exceeds one thousand dollars, exclusive of interest; and tested by that article this case involves a claim or a matter in which the amount in dispute, exclusive of interest, is the balance of account of $593 62, and a promissory note for the sum of $347 51, which added together do not exceed one thousand dollars, but is less than that amount.

In an able and elaborate brief appellant strenuously urges that plaintiff must be held to his allegation wherein he declares on an account of $677 68 as binding upon him in this case; but this brief indirectly ignores article 81 of the Constitution and the rules which should guide this Court in questions of j urisdietion.

In a case 'where the amount in dispute, exclusive óf interest, is insufficient to give us jurisdiction, we cannot assume it, even if plaintiff alleges a greater amount, not even if both parties should join in asking us to exercise jurisdiction not granted to us by the organic law of the land.

The real amount in dispute, whether the same can be legally ascertained from the pleadings and documents annexed, and not the allegations of parties, is to be the test of our jurisdiction, and shall be our rule in determining all such questions.

Being clear that this case does not come within our jurisdiction, we therefore order, adjudge, and decree that the appeal taken by defendant be dismissed at his costs.


text:
    No. 1092.
    A. D. Guilbeau vs. Julie Cormier, Administratrix.
    The acts of a judge adhoc, appointed under the law which provides for such appointments, are valid and binding, like those of other defacto officers; and the qualifications of snob a judge ad hoc cannot be enquired into collaterally.
    4 PPEAL from the Twenty-Fifth Judicial District Court, parish of Lafayette. Mouiuii, J.
    John Clegg for Plaintiff and Appellee.
    M. E. Girard for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

In the suit entitled Julie Cormier, administratrix, vs. Alexander Guilbeau, in the District Court of Lafayette parish, at the April term of the year 1871, Judge Mouton, having recused himself, appointed as judge ad hoc Conrad Debaillon, Esq., who had been admitted to practice as an attorney-at-law by this Court in June, 1870, or less than two years before the time of his appointment as judge ad hoc.

The object of this suit is to annul the judgment rendered and signed by the judge ad hoc on the 25th April, 1871, on the ground that Debaillon having not the qualifications required for a district judge at ■the time of his appointment the same was illegal and null, and the judgment rendered by him also a nullity.

The judgment of the lower court was in favor of plaintiff, annulling ■fche judgment rendered by the judge ad hoc, and defendant appeals.

She urges that the inquiry in the qualification of the judge ad hoc •comes too late after judgment, and that the objection for want of •capacity or eligibility of the judge ad hoc should have been urged before •going to trial.

It is a well-settled rule of jurisprudence that acts performed by «is facto officers have binding effect when the power of appointing, or the act of appointment, was not in violation of the Constitution or laws ■of the State.

The district judge had the unquestioned power to appoint a judge nmd hoc to try the cause; and his error consisted in selecting an attorney who did not possess all the qualifications presented by the Constitution. Does it follow that the acts performed by the appointee are absolutely mull?

Public policy has dictated a different ruling, which has been uniformly adopted by our courts. 26 A. 274, and cases there cited; 22 A. 629.

In the case of Braughn, 27 A. 563, this Court held that the Judge of fche Superior Criminal Court had no' authority in law to appoint any one without reference to his personal, professional, or specific qualifications, as judge ad hoc of his court, during his illness or absence, and that the appointment having been made in violation of the Constitution it was absolutely null and void, and could have no legal effect.

■ The qualifications of the appointee were not at issue in that case, tout the question turned upon the very foundation or essence of the .sight to appoint in the premises. ,

In this ease the issue is exclusively as to the qualifications of the •appointee, who, in this light, stands in the attitude of a party elected ■or appointed as district judge, who should lack some of the essential •qualifications for the office, but whose acts are binding until his ineligi-ibility is judicially ascertained and the office declared vacant according to law.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be annulled, avoided, and reversed, and that plaintiff’s ■action for the nullity of the judgment rendered on April 25th, 1871, in -the suit of Julie Cormier, administratrix, vs. Alexander Guilbeau, be rejected and dismissed at his costs in both courts.


author: Todd, J,

text:
    No. 1091.
    James M. Thompson vs. Ludger Lemelle et al.
    "WTien tlie value of the property, of which, the seizure and sale is enjoined hy a third person, is less than, the appealable amount, the claim for damages on the dissolution of the Injunction, by the Execution plaintiff and Injunction defendant, cannot make up the amount and give this Court jurisdiction of the case.
    APPEAL from the Thirteenth Judicial District Court, parish of St. Landry. Hudspeth, J.
    John E. King and John N. Ogden for plaintiff and appejlee :
    The value of property seized under execution, the sale of which is enjoined by a third person claiming to be the owner, and not the amount of the writ, determines the right to appeal. Hennen’s Digest, p. 19, No. 18.
    The jurisdiction of the Supreme Court must be apparent from the pleadings. 25 An. 286.
    In this case there is no allegation in the pleadings to show that the Supreme Court is vested with jurisdiction, and for this reason the appeal should be dismissed.
    Richardson & Magruder, Jos. A. Breaux, and Kenneth Bailiio for Defendants and Appellants.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J,

The plaintiff, as third possessor of a tract of land, enjoins

the execution of an order of seizure and sale directed against the property, claiming to be owner of the same, and denying the existence of ¿the mortgage under which it is sought to sell the property.

There .is a motion to dismiss the appeal, on the ground that the amount in dispute, or the value of the property claimed, doesfnot exceed one thousand dollars, and this Court is, therefore, without jurisdiction ratione materia.

There is no averment in the pleadings in regard to the value of the property in controversy.

We find in the record an act of sale of the land, showing that in June, 1878, it was sold for $900, on a credit of one, two, and three years. This we must accept as the value of the land, and if this constitutes the amount in dispute, this Court is clearly without jurisdiction.

The value of the property, the sale of which is enjoined by a thiid person claiming to be owner, and not the amount of the writ, determines the light of appeal. 12 A. 48.

It is, however, urged that to this we must add the amount of the damages claimed by the defendants in the event of the dissolution of the injunction, and this addition would increase the amount in dispute to a sum within the jurisdiction of the Court.

We cannot entertain this demand for damages, or give it consideration, for the reason that this Court has recently held that where an order of seizure and sale is enjoined no damages can be allowed in the dissolution of the injunction, but the parties must be left to their recourse on the injunction bond. 31 A. 729.

The demand for damages in this suit cannot, therefore, be regarded as a real demand, and it is only a real demand, a legal demand, that can be considered in determining this question of jurisdiction. 16 L. 182; 17 L. 102; 3 E. 143; 1 A. 310; 4 A. 213; 6 A. 735; 7 A. 492; 10 A. 282; 15 A. 135.

It is therefore ordered that the appeal be dismissed without prejudice to the rights of the applicant to appeal within the time prescribed by law to the court having jurisdiction of the case.