source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 12,928.
    Succession of Dr. Eugene Rabasse. Opposition of Heirs to Final Account.
    Syllabus.
    (1) A charge made against a succession representative of an amount which, he contracted to pay a guaranty company for becoming surety upon his bond, cannot be sustained in the absence of ah express provision of law authorizing same.
    ,(2) By the terms of Act 104 of 1890, an auctioneer is entitled to demand and receive as a compensation for his services on all sales of succession property made by him, a commission of not more than two per cent, on the first ten thousand dollars of proceeds, and one per centum of the excess.
    (3) Jurisprudence has settled the rule and consecrated it, that the quantum of attorney’s fees in any case where the services have been performed in the presence of the court which is called upon to decide the question, is a matter of law rather than one of fact, and that it will value same as its opinion and sound discretion dictate, rather than base its judgment upon , the opinions of witnesses.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J. ]

      Henry Qhiapella for Testamentary Executor, Appellee.

      E. J. Moral, J. Huma Augustin and Charles F. Claiborne for Mesdames Pincaut and Mcissons, Opponents, Appellants.

      Solomon Wolff and J. F. Pierson, (E. Howard McCaleb of Counsel) for Henry Chiapella, Individually, Appellee.

      E. Howard McCaleb, Felix J. Dreyfous and Solomon Wolff for David Danziger, Auctioneer, Appellee.
    Argued and submitted December 19, 1898.
    Opinion handed down January 23, 1899.
    Judgment amended and rehearing refused March 7, 1899.
   'The opinion of the court was delivered by

Watkins, J.

The collateral heirs of the deceased, opposed the final account filed by the testamentary executor on several grounds, and, on the trial of the oppositions, the district judge approved and homologated same, after having modified it in a few minor particulars; and from that judgment, the opponents have appealed — the executor having acquiesced in the amendments and modifications made.

As many of the items of the oppositions have been withdrawn, and only a few of them are now insisted upon, attention will be directed to those only.

The approximate amount of the estimated value of the estate as it is exhibited by the original inventory, is one hundred and fourteen thousand dollars ($114,000), and it is upon that basis that the discussion must primarily proceed, notwithstanding the opponent’s counsel contend that the appraisements were excessive and inflated, and in consequence thereof the amount charged for attorney’s fees is likewise excessive, and ought to be greatly reduced.

Counsel say in their brief, “if the items of the account are to remain, then we have the following charges of administration, viz.:

“Commission, Executor ....................>............$ 2,855.40

Charbonnet, Notary ................................... 550.00

Appraisers........................................... 325.00

Clerk Terrebonne ..................................... 50.00

DePoorter, Attorney ................................... 650.00

Auctioneer........................................... 2,129.37

Chretien & Suthon ..................................... 200.00

Buisson, Attorney, absent heirs.................••....... 350.00

Commission on rents................................... 170.00

Costs of Court........................................ 200.00

Stenographer ........................................ 400.00

Experts ......................................'....... 275.00

• Chiapella’s briefs...................................... 272.00

Attorney for Succession ............................... 11,421.63

Charbonnet, Notary ................................... 339.00

Keepers of Seals...................................... 100.00

Appraisers........................................... 50.00

Surety’s Commission ......................■............ 1,200.00

Total $21,527.40

“Equal to almost one-third of the total value of the property abandoned to the lieirs.”

The following is the list of items which are opposed, and with regard to which we are called upon to pass judgment, viz.:

1. The Executor’s commission.

2. A charge he made against the succession, which he agreed to pay to a third party for procuring him a bond or for signing his bond.

8. The auctioneer’s commission and lrs charges for advertisement.

4 Penalties on laxes paid by Ihe Executor, and

5. Fees charged by the attorney of the succession.

We will take them up and dispose of them seriatim, in the order stated above.

I.

The item of executor’s commissions of two and one-half per cent on the amount of the inventory, is disposed of by the following statement in the principal brief of opponent’s counsel, viz.:

“We have to submit to the executor’s commission of two and onelialf per cent upon the amount of the inventories, one hundred and fourteen thousand dollars, say two thousand, eight hundred and fifty-five dollars.”

This confession closes the controversy, in so far as that question is concerned, and leaves the account in statu quo, pro hac.

II.

With regard to the commissions of two and one-half per cent which the auctioneer charged, counsel for the opponents make the statement, that same was made upon each separate adjudication, as a distinct and separate sale, and that the judge a quo allowed them — only reducing the rate from two and one-half to two per cent.

We extract the following from the brief of opponent’s counsel, viz.:

“The commission allowed by the lower court in bills A and C, the sales being below ten thousand dollars, is correctly fixed at two per cent. But as regards bill B the sales aggregating twenty-five-thousand and thirty dollars, should be reduced as follows:

Two per cent, on $10,000 ............................. 200.00

One per cent on $15,030 ............................. 150.30

350.00-

The auctioneer charged .............................. 625.75-

An overcharge of..................................... 275.45.”

And the following is an extract from the opinion of the judge a quo) on this subject, viz.:

“The heirs oppose the auctioneer’s commission. Act 104 of 1896', provides the tariff of charges at two per cent on the first ten thousand, dollars, and one per cent on the excess. There is much in the rule settled in Van Hogan Succn., 42 An. 620, to support the claims of the auctioneer for two and one-half per cent, as virtually consented to by some of the heirs, and acquiesced in by all, in the matter of some of" the sales accounted for in a former account.

“But, as there was no express agreement by all, I fix the rute established by the set of 1894.

“I think the auction-eer is entitled to two per cent, on each adjudica- ■ tion made by him, none of them reaching ten thousand dollars.

“There were some twenty properties sold, situated, some in this city, - but most of them in the country. There were about twenty separate' adjudications to as many different purchasers; almost to each purchaser, there was a separate adjudication, a separate act of sale, a separate price paid, and for each adjudication the delay for a separate title examination.

‘“All the properties were not sold on the same day, or at the same lime.

“There was all the trouble of obtaining exact information as to each property, and its derivative title.

“They were separate sales.

“That some of them may have been grouped under one advertisement, with a separate item of description, as to each, does not make of all the adjudications one adjudication.

“As none of them exceeded ten thousand dollars, the law gives the auctioneer his two per cent on each adjudication.

“Suppose two-thirds of the appraised value was required to effect' the sale, and such was and is the law; and suppose that some of the-properties brought more than two-thirds, and some of them less than-two-thirds of the appraised value, aud that combining all the prices an average of iwo-ihirds had been realized, it seems to me, that there would be a legal adjudication of such properties only as brought the essential two-thirds, and that there would be no sale of such as failed to bring two-thirds of the appraised value. If this be true, then it must also be true that the auctioneer’s power and duties attach separately to each property, that he deals with each separately, and that, therefore, his commission is to be calculated separately, on the price brought by each adjudication.”

It thus appears, that the only controversy is with regard to bill B, .and that the only amount that is alleged to have been overcharged is two hundred and seventy-five dollars and forty-five cents. .

It further appears that the auctioneer made sales aggregating in proceeds the sum of thirty-six thousand, two hundred and eighty dollars, but having adjudicated to one of the legatees an amount equal to eleven thousand, two hundred dollars, a commission of two and one-half per cent, was charged on the residue of twenty-five thousand and thirty dollars, equal to six hundred and twenty-five dollars and seventy-five cent's.

The district judge only allowed two per cent, and thus reduced the commission to the sum of five hundred dollars and sixty cents, and opponents contend that it should have been reduced to three hundred and fifty dollars and thirty cents- — a difference of one hundred and fifty dollars and thirty cents in addition.

The contention on the part of the auctioneer is, that he made eighteen separate and distinct sales, for each of which he is entitled to •charge a separate commission.

The law which governs the auctioneer’s commission is as follows, viz.:

"No auctioneer shall demand or receive a higher compensation for his services on all sales of real estate than a commission of two and

• one-half per cent, on the amount of any sale, public or private, made ’by him; and on sales of Succession property, made pursuant to an order or decree of any court of the State, a commission of not more •than two per cent, on the first ten thousand dollars, and one per cent. • on the excess.” Act 104 of 1896, p. 153.

This statute is an amendment of Revised Statutes, Section 160, which provides that "no auctioneer’shall demand and receive a higher • compensation for his seiwices than a commission of two and a half per cent., on the amount of any sale, public or private, made by him,” etc.

It will be observed upon comparing the two statutes, that the phrase “the amount of any ¿ale” occurring in the Revised Statutes, has been so altered by the statute of 1896, as to read “on all sales;” and that his commissions “on sales of succession property” have been reduced to “two per cent, on the first ten thousand dollars, and one per cent, on the excess.”

It is plain that the compensation of the auctioneer under the last statute on the subject, on all sales of succession property, is fixed at .the per centum, therein designated upon the amount of proceeds realized thereby, and no; by the number of separate adjudications.

in Succession of Macarty, 32 Ann. 6, our predecessors interpreted Revised Statutés, Section 160, above quoted to mean, that, for his serlices an auctioneer is entitled to a commission of two and one-half' per cent on "the entire amount of the sale.”

And this court recently construed that provision of law to apply to *he ease of an auctioneer who had made sales of eighteen different pieces of succession real estate. Succession of Von Hoven, 48 Ann., 620.

But, since the Succession of Macarty was decided, the legislature has put its interpretation of the Revised Statutes, Section 160, beyond cavil or question by its enactment ci 1896.

We think it evident that this item of auctioneer’s fees should be further reduced, so as to award him the sum of only three hundred and fifty dollars and thirty cents, instead of six hundred and twenty-five dollars and seventy-five cents, as charged in the executor’s account.

Ill

The next item of opposition to which our attention is directed, is the charge made by the auctioneeer for advertising; and, as included with his commissions, aggregates the sum of two thousand, one hundred and twenty-nine dollars and thirty-nine cents, as stated in the account.

The counsel for opponents have made in their brief a careful compilation of the facts appearing in the record, applicable to their contention, and we have extracted same from their brief, after verifying the correctness of their quotations as follows, viz.:

“The charge of the auctioneer was for six advertisements, at seventy cents a square. It should have been for five advertisements only, at the rate of seventy cents a sauare for the first insertion, and twenty-five cents a square for each subsequent insertion, as follows:

Bill A.: Picayune:

56 squares at 70 cents.................................... .$ 39.20'

48 squares at 25 cents each, 4 times........................ 48.00

$ 87.20'

Amount charged by auctioneer.............................$217.70

Amount allowed by law.................................. 87.20

Amount ‘overcharged ................................$130.50'

Bee:

50 squares at 70 cents...................................$ 35.00

42 squares at 25 cents, 4 times............................ 42.00

$77.00

Amount charged by auctioneer .......................... 203.00

Amount allowed by law.................................. 77.00

Amount overcharged .................................$126.00

Total amount of Bill, p. 57............................$581.05

Less overcharges, printing........................$130.50

Less overcharges, printing........................ 126.00

Less overcharges, commission .................... 19.35— 275.85

As the bill should be..................................$305.20

The lower court made a reduction of...................... 128.37

There should be a further reduction of.....................$176.88

Bill B, Picayune:

90 squares at 70 cents...................................$ 63.00

90 squares at 25 cents, 4 times.......................:..... 90.00

$153.00

Amount charged by auctioneer..............................382.50

Amount allowed by law.................................. 153.50

Amount overcharged.................................$229.50

Bee:

53 squares at 70 cents.....................................$ 39.20

56 squares at 25 cents, 4 times........■.................... 56.00

$95.20

Amount charged by auctioneer...................... $224.00

Amount allowed by law.................................. 95.20

Amount overcharged.................................$128.80

Total amount of Bill, p. 58............................$1,522.43

Less overcharges, printing .......................$229.50

Less overcharges, printing........................ 128.80

Less overcharges, commission..................... 275.45— 633.75

As the bill should be......................................$888.68

The lower court made a reduction of...................... 298.45

There should be a further reduction........................$590.23

“These rates of advertisements have been maintained in Succession ■cf Von Hoven, 48 An. 620, after o. long argument.”

In support of their contention, opponent’s counsel cite the provisions •of the following statutes, viz.:

“That the costs of such advertisements shall not exceed in the Parish of Orleans the rate of seventy cents per square, or fraction ^hereof, for the first insertion, and twenty-five cents for each subse•quent insertion. * * *” Sec. 18, Act 49 of 1877, p. 62.

“That judicial advertisements shall be made by publication in a ■daily paper on three different days before the expiration of the term fixed by law, if the term be of ten days; and for those advertisements for which the term of thirty days is 'fixed, it suffices if they are published in a daily paper, once a week, during that term.” Act 104 of 1878, p. 157.

“That said publication in the French language shall be made in precisely the same maimer and for the same number of times, and on the same terms as by existing laws are required or may be required thereafter, for the publication of judicial advertisements in the Eng"lish language.” Section 2. Act 125 of 1888, p. 186.

The total amount charged for advertising in the Bee and Picayune,, aggregate one thousand, five hundred and wenty-two dollars and forty-three cents, and upon this, the judge a quo made a reduction of two hundred and ninety-eight dollars and forty-five cents; and our examination has led us to the conclusion that there should be a further reduction of sixty dollars and eighty cents — thus making a total reduction of three hundred and fifty-nine dollars and thirty cents.

In adopting this estimate, we aro following the declaration made by this court in the Von Hoven case cited supra (p. 621), as follows,. viz.:

“We think the rates charged for advertisements entirely unwarranted. The law is perfectly plain on that subject. The charge for judicial advertisements is seventy cents a square for the first insertion, and twenty-five cents for each subsequent insertion, whether made consecutively or not. There is but a single first insertion in a judicial advertisement; all others following the first, are ‘subsequent insertions.’ The doctrine of ‘alternative first insertions,’ reached by making the advertisements non-eonsecutive, and charging each first insertion of a renewal advertisement as an ‘alternate -first insertion may be satisfactory to the newspapers, but not to litigants, and is sustained by no law.”

IV.

The next item of the account opposed is the amount of twelve hundred dollars, charged against the succession, as the sum which the executor had contracted to pay a security company for furnishing surety upon his bond.

This item is opposed upon the ground that the charge is not warranted by the provisions of the code, and not sanctioned by the jurisprudence of this court; and, as establishing that proposition, counsel for opponent cite the following authorities, viz.: C. C. 1683; 1200; 1069; 1194; Succession of Milne, 1 Rob. 400; Succn. of Sprowl, 21 An. 544; Succession of Day, 3 An. 624; Succession of Poindexter, 19 An. 24; Baldwin, Ex’s. vs. Carleton, 15th La. 398; Succession of Key, 5 An. 568; City of New Orleans vs. City of Baltimore, 15 An. 625; Succ’n. of Liles, 24 An. 492; Young vs. Chancy, 3 La. 464; Succ’n. of Turnell, 34th An. 889; Succession of Boyer, 36th Ann. 515.

Upon this subject our learned brother of the District Court made an elaborate statement of the reasons which impelled him to approve this item of the account, as a just charge against the succession, and we have made the following extract therefrom as fairly illustrating the views he entertained, viz.:

“The executor credits himself with twelve hundred dollars paid, as provided by him to obtain a suret-- upon his bond, as executor. The ieirs resist the charge as an illegal one; it. is argued that no law authorizes such a charge and ergo it should he rejected.

“Prior to the Act No. 41 of 1894 the law exacted personal security, such as the Civil Code provides for. Said act authorizes surety companies, under certain guarantees, to underwrite as surety upon bonds in lieu of personal security, and authorizes such companies to charge for the service. Since then, we find said corporations have been accepted as sureties on all bonds required by law, such as official bonds, warehouse bonds, builders’ and contractors’ bonds, and bonds in succession matters.

“In the rush of modern business, suretyship has become a fixed subject matter of covenanting by the policy of the law.

“It appears in this case that, the executor, holding the power of attorney of an heir, was appointed dative executor, and he gave the bond, 'which was for a large amount, the inventory amounting to about $100,000. Several months after he had given said bond, the sureties on his bond having the legal right so to do, announced their purpose to withdraw from the bond. Litigation of a serious nature had arisen, and it had become evident that it might require several years, as has proved to be the fact, to wind up -he affairs of the succession. Thus confronted by the certainty of being left without a bond, and by the certainty that it would be difficult <ud perhaps impossible to find personal security for so large an amount, say more than $120,000, for the length of time, perhaps years, that would be required to settle the litigation pending, and close the succession, and particularly after sureties upon the bond which had been given had become alarmed and withdrawn from his bond, what recourse had the executor but to apply to a surety company, which the Act No. 41 of 1894 had legalized, and recognized as a proper and competent surety?

"He must either do this or give up the trust. Fairness must concede that this latter was a harsh condition. He had embarked on his duties, and had incurred responsibilities. He had the right to earn ]hij commission by full administration. He held the mandate of an :absent heir having a large interest. It was not a certainty that any other representative of an absent heir co uld give a bond, at least without paying for the surety, as per said Act No. 41 of 1894. The public administrator, always ready, had previously intervened in the succession and would perhaps succeed to the trust with his statutory charges of 5 per cent, commissions on the inventory, 5 per cent, more on collections, with new attorney’s fees, new costs of inventories, publications, etc. It was ergo to the evident interest of the succession vthal the dative executor should remain in office.

"It is proved by Mr. Peseud that the surety company would have ■charged 1 per cent, for the first year of administration and 1-2 of 1 per cent, for each succeeding year. The succession is not yet closed, .and we are in the third year of the administration, with the certainty • of another appeal +o the Supreme Court, just now adjourning until the late autumn, and the probability, therefore, of four years of ad■milustration, before this succession can be closed.

"In this contingency, a charge of 2 per cent, on the amount of the bond of $120,000 or upwards was a certainty if the executor followed the law and contracted under it (the Act of 1894) with a surety company. It was almost as certain that 1-2 per cent, more would have resulted as the charge, and possibly 1 per cent, more — i. e., 21-2 per cent, or 3 per cent, on the $120,000 bond.

“The alternative then was the public administrator’s commission of 5 per cent, on the inventory, and 5 per cent, on collections, etc., on the ■one side, or the surety company as a bondsman at 2 per cent, on the •amount of the bond at least on the other side, or to give up the trust •and take the chances of another representative of the absent heirs applying and giving bond.

“The chances were that any other representative of an absent heir would have equally to pay for a surety, and as the charges of the •surety company were about equal to what an executor would receive for his commissions, the chances were that no absent heir’s representative would have made the application or have given the bond.

“In this dilemma, the executor engaged a sufficient and solvent surety by contracting, as executor, to pay 1 per cent, for the surety-ship.

“This suretyship was to last during this entire administration.

“That this was the best he could do is established. That it was ■economical the figures show, for while 1 per cent, is $1200, the surety company would have charged $2400 or perhaps $3000, and the publie .administrator’s fees, by law, would have been $4000, at least.

“That it was prudent, for the interest of all, appears in the fact that to begin de novo with inventories in all the parishes, new notices, new delays, new letters, new attorneys and consequent fees, would have cut the estate (I doubt not) $1200, which is all that this executor had to agree to.

"If he had to pay this personally, it will eat up the greater part of his commission. If it be divided out among the several heirs, the charge upon each heir will not be much, and they are all, as a matter of good fortune; and not by the will of the testator, receiving amounts which in France will be regarded as large, and which, here, are very considerable. None of them have been at any trouble, and all of them are to receive, -liberally, as the result of the active executor and his attorney, who have defeated claims and saved to the estate $50,000, at least, equal to 250,000 francs in France

“The security was for the benefit of the estate. It secures creditors, and it secures the heirs. It benefits the executor only, as it enables him to earn his 2 1-2 per cent, commission, and surely he has earned it.

“It seems to me, on every view of the matter, that the succession which gets the almost entire benefit, should pay the 1 per cent, charge for the surety, and for the guarantee that the succession would suffer no loss.

“The only argument against the view is that no law approves it. The Act No. 41 of 1894 is a good reply'to this argument.

“This act authorizes the acceptance of the company or corporation as a legal surety, an-1 authorizes the company or corporation to charge a premium or commission for taking the risk, and where the law accords the right it necessarily allows all that is necessary to avail of the benefits of such rights.

•x * -x- * x * * »

“The law has announced as its policy in the Act No. 41 of 1894, that furnishing surety, on such bonds for a money consideration, as a matter of business enterprise, is legitimate business. The conclusion seems to me fair and just, that where good security, at fair and reasonable and economical rates, is obtained, that the succession which is • thus secured against the acts of the executor ought to bear the charge.

“Such was the view taken by the Wisconsin court in Hanacker vs. Commercial Bank, 70 N. W. Reporter, p. 295. But if I am wrong in •these views, I must not forget that as Mr. Cleveland said of the tariff: ‘We are not dealing here,’ under the peculiar facts of this ease, ’with a theory, hut with a condition.’ Each case has its peculiar facts and conditions. Every rule has its exceptions. In this case justice approves the charge, and equity applies when law is silent, and especially in matters of accounting, which is of chancery origin.

'T therefore overrule the opposition to this charge of $1200.”

The foregoing reasons and course of argument are cogent and persuasive, and would exercise a strong-influence on our decision, if we found any authoritative sanction therefor in either the statute or decision cited; but, in cur opinioji, there is none in either.

The title of the statute referred, to is as follows, viz.:

“An act to authorize certain 'corporations to become surety upon “bonds required to be furnished by law, and prescribing the eondir “ tions under which they may do sc ”

Section one provides, amongst ether things, “that hereafter, any “ corporation duly incorporated * * * for the purpose of trans- “ acting the business of guaranteeing the fidelity of persons holding “ places of public or private trust * * * may be accepted as sole “and sufficient surety upon any bond,” etc.

Section two provides, amongst other things, that “it shall be lawful “for any party of whom sach a bond or understanding is required, to- “ agree with such company, acting as surety for the deposit of any and “ all moneys, etc.”

Similar provisions occur, in the following sections of the act; but in concluding section (9), we find the following pertinent expression, viz:

“That this act is not intended-in any manner, except as above provided, to change existing laws on the subject of suretyship, and ex- “ cept to permit such a company to act and be accepted as a sole surety “ on all bonds, etc.” Sec. 9, Act 41 of 1894.

It is a statute appertaining to the subject of suretyship, and possessing no pertinency to the duties, powers or responsibilities of executors or administrators, or the management or the administration of’ successions; and for that reason we think it altogether inapplicable to the question under consideration.

In our view, the case stands in the same position as it would if a private person, sui juris, had made a similar engagement to become surety upon the bond of the executor for a consideration; and that the succession incurred no other or greater responsibility to the executor therefor.

The ease decided by the Wisconsin Court was under a special statute which differs widely from the Act of 1894.

For these reasons, we are of the opinion, that the succession can not be called upon to reimburse the executor the sum expended by him in procuring the guaranty company tc become surety on his bond; and in this respect the opposition must be sustained and the claim of $1200 rejected and disallowed.

V.

The next item opposed is that of ettorney’s fees which are placed on the account, at the total amount of $11,421.63.

This sum is equal to ten per cent, on the total amount of the original inventories.

It appears that the sum of $3000 was placed on the provisional account of the executor, and that same was allowed by the court a qua and paid without opposition by the heirs; but they oppose the further allowance of $6,421.63 as being excessive.

Our learned brother of the District Court made a very exhaustive examination and analysis of this question, and we make the following excerpt from his written opinion, as illustrating his views, viz:

“This succession record on file has grown into large proportions, and the official books of the executor and his vouchers and memoranda which have been called for and produced have gathered equally in volume, and these attest the constant attention that has. been required and the faithful attention that has been given to all and singular the numberless details, great and small, of the business of this succession here, and in the several other places where it had property interest.

“As I have stated, the heirs at law are collateral, not close in degree cf relationship, who live abroad, who have come to the inheritance only by the death of the legatee named in the will, prior to the death of the testator, and who were virtually strangers to the deceased.

“There are no widow, no minors, no ascendants, no brothers, no sislers here.

“All these facts impress me with the firm conviction that in this solvent and valuable estate, neither the law nor a sound public policy require at my hand'', any illiberal or narrow, or strict construction, against the executor or against his counsel.

“Judged by the volume of the estate; judged by the important and .complicated litigation that has been managed; judged by the success which has attended 'the efforts of the executor tmd his attorney in defeating claims urged with the persistence and plausibility of appearance, and by able and skillful counsel, claims amounting to more than $50,000; judged by the benefit that enures, and has enured to the collateral heirs, to whom this succession has proved a windfall or stroke ■of fortune; judged by the important questions of law that have been met and dealt with, I think that the fees of the attorney of the executor are fair and reasonable, and just.”

But, on the other hand, counsel for the opponents make this rejoinder to the argument of the district judge, viz:

“That while various suits were brought against the succession, aggregating $66,800, and that nearly all of them were defeated, that those defeated were so defeated by the mutual efforts and learning of ■other counsel in part, who were employed for their defense, and cooperated with the attorney of the executor.”

These suits and various other matters of litigation brought this . succession before this court several times, and its records attest the labor, skill and learning with which the attorney for the executor and other counsel, who co-operated wiih him successfully, protected the estate from spoliation, and hence, we are able co judge, from our own standpoint of observation, of the value of these services.

Jurisprudence has settled the ríe, and consecrated it, that the quantum, of attorneys’ fees in any case where the services have been performed in the presence of the court, which is called upon to decide the question, is a matter of law, rather than one of fact, and which the court will value as its opinion may dictate, rather than base its judgment upon the opinion of witnesses.

Counsel say in their brief:

“In the Bank of Commerce case, 49 Ann. 1060 (1074), ihis court ■quoted approvingly the decision in the Succession of McCarthy, 2 Ann. 518.

“As the services to be compensated are rendered under the eye of “the court, the taxations ought to be made on its own responsibility, “ which ought not to be shifted from the bench on the bar, as appears “ to have been done in this case, in which the decision is made on the “opinion of the attorneys, that the charge is moderate, and but reas- “ onable.” Succession of Caballero, 25 Ann. 647. The Supreme Court will fix attorneys’ fees without regard to the opinion of witnesses. Randolph, Singleton & Brown vs. Carroll, 27 Ann., 467; Dorsey vs. Creditors, 5 N. S., 399; Succession of Mayer, 12 R., 414; Uzee vs. Biron, 6 Ann., 565.

“In the Bank of Commerce case, the amount distributed by them upon their account was $189,746.31. Yet the commissioners were allowed only $2000, and the attorneys $5000; and this court said it was 'more than we should allow if the allowance was open to review.’ ”

Per contra we have this statement from the counsel of the executor’s attorney, viz:

“If your Honors ere with us on the proposition that the $5000 fee was for services allowed on the provisional account, and being unopposed, it should not be considered in fixing the value of services subsequently rendered, then we present to the court a unaramity of opinion which is seldom equaled. For all the attorneys called as witnesses agreed as to the correctness of the amount for which our client is placed on the final account, the judge a quo agrees, and counsel for opponents practically do so. It therefore unnecessary to go into details; it is unnecessary 1 o show that the percentage of the value of an estate which it cost to save it from a horde of forgers and dishonest claimants is not necessarily an indication that the charges are excessive.

“Before closing, we quote from the syllabus in the opinion in the Succession of Richards, 49 Ann. 1115.

“ ‘The estimation of the value of professional services of an attorney-at-law is only a question of law, and one that comes peculiarly within the province of the judge a quo who superintended the making up of the record upon which same must necessarily depend, giving him a very intimate acquaintance with all of its details, as well as knowledge of the kind and value of what services were nerformed. In such a case, this court will accept his estimation as a correct and proper one, in the absence of any manifest error of judgment on his part.’ ”

In each of these cases — Succession of Richards and Bank of Com-

merce — we affirmed the judgment < f the lower court for reasons as assigned in the foregoing quotation,: therefrom, that is to say, that the litigation in which the services of the attorneys were rendered was solely conducted before the district ;udge, who was called upon to estimate their value. •

But the instant case is different, m that the litigation in which the attorneys’ services were rendered was conducted, in great part, before this court, finally.

Applying this test to the question before us, it is our deliberate conviction, that the amount placed upon the account, and allowed by the judge a quo, is excessive, and should be reduced to the sum of six thousand dollars, in full for all attorney’s fees, and that as thus reduced this item of the account is approved and allowed.

VL

I he remaining question is, whether the executor is entitled to the commission he has placed upon ths executor’s account, for the collection of rents, amounting to the sun. of $170.

The judge a quo approved this item, and rested his decision, mainly, upon Succession of Robertson, 49 th Ann. 80, and the cases therein - cited, and on Hale vs. Salter, 25 Ann. 323, and Succession of Hopkins, 23 Ann. 1166.

The case presented in the Succession of Robertson, was exceptional, the surviving widow and executrix having by her unaided exertions increased the sale value of the estate from $12,000 to $41,000, and in addition, she had accumulated over $6000 of nci earnings for the succession, within the brief period of eight months. Under these circumstances, we thoaght her equitably entitled to five per cent., but upon this last amount only. But in so deciding that case, we did not propose to establish any new precedent, nor to depart from the pre- ■ cepts of the Code and our jurisprudence, which were therein quoted and approved; hut merely to apply the maxim of equity to a ease we regarded as sui generis, as those cited and relied upon Were.

But the instant one is not such a casé, and it finds neither support nor application in the Robertson ease. Hence the opposition to this item is well grounded, and must be sustained.

After a careful examination of this record, and the various conten•tions of counsel pro and con, we have reached the conclusion that the

. account of the executor should be amended and restated in conform.ity with the views herein expressed.

It is therefore ordered and decreed, that the opposition of the heirs . be sustained in the amounts and particulars hereinabove set forth, and tha i the cause be reinstated and remanded to the District Court with - directions to the effect that the testamentary executor restate and correct his final account so as to conform to the law and the views herein expressed; and that costs of appeal be taxed against the several appellees personally and proportionately.

On Application foe Rehearing.

Watkins, J. The reduction which the court intended to make in the original decree, and which the court did make in the matter of fee of attorneys for the succession was, from $11,421.63., to $6000; and this was intended to include all services rendered by the attorneys for ■the succession of any and every kind.

However, the court, having reconsidered its original decree in this respect, has concluded to increase the amount heretofore allowed for attorney’s fees from $6000 to $7500; this to include all fees inclusive of the $5000 which were allowed and placed upon the executor’s provisional account, and since paid.

We do this, only because counsel representing opponents, in argument and brief, express themselves as satisfied if the court would re-

• duce the fee of the attorney of the executor from $11,421.63 to $7500.

With reference to the payment of Mistress Hippolite Bossu, one of the legal heirs of the deceased, counsel claim, that she is bound by a

• contract entered into by her agent with Danziger & Stern, to the •extent of her interest in the succession of Rabasse; and that she is accordingly bound for the sum of $600, same being one-half of the •amount paid to the sureties on the executor’s bond.

This contract has not, heretofore, been pressed upon the court’s at-tention, and we, therefore, think it unnecessary to re-open the decree in so far as relates to this claim. But we will reserve to Danziger & Stern all rights they may have under their contract in respect to Mistress Bossu.

It is a question which can well be settled' between them, and which .-need not enter as one of the factors in our present opinion.

It is therefore ordered, adjudged and decreed that our original decree be and the same is hereby amended so as to increase the amount of attorney’s fees for all purposes, from $6000, the amount allowed in the original decree, to $7500: and ro reserve the rights of Danziger & Stern under their alleged contract with Mistress Bossu, or her agent, for any amount they may be entitled to recover thereunder.

It is further ordered that our original judgment, as thus amended, remain undisturbed, and that a rehearing be refused.


author: Breaux, J.

text:
    No. 13,050.
    State of Louisiana vs. Albert Dennie.
    _Syllabus.
    The owner of a liquor saloon on board a steamer, running on navigable streams, between the city of New Orleans and Madisonville, Old Landing and other points, cannot be compelled by the local authorities, other than those of the home port, to pay p license tax for selling spirituous liquors.
    The license payer, for the business of retailing liquors, owes one license to the State and license taxes to the local authorities of the home port of the steamer, and not a license at every other landing in the course of the voyage.
    ON APPEAL from the Sixteenth Judicial District Court for the Parish of St. Tammany. Reid, J.

      M. J. Ounninghanm, Attorney General, and D. 8. Kemp, District Attorney, for Plaintiff, Appellee.

      Horace E. Upton and Benjamin M. Miller (W. 8. Benedict, of Counsel,) for Defendant, Appellant.
    Argued and submitted February 25, 1899.
    Opinion handed down March 7, 1899.
   The opinion of the court was delivered by

Breaux, J.

The defendant was indicted in the parish of St. Tammany for selling and retailing spiritous and intoxicating liquors-without his having previously taken out a license from the police jury,.. town or city authorities.

It appears that the defendant was the owner of the bar on board the steamboat “New Camelia,” plying regularly between New Orleans- and ports in the parish of St. Tammany. The record discloses that defendant sold liquor by the glass, at the bar, while the boat was-landed, to persons who came on board; that he paid no license except the United States Internal Revenue License as retail liquor dealer;, that a license as retail liquor dealer was assessed against him by the: assessor of St. Tammany parish; that in case of accident to the bridge of the L. & N. R. R., the boat, when called, carried passengers between points in Louisiana and points in Mississippi; that she had not performed such service within the past fifteen months, and since the defendant had been engaged in business on her.

During the trial, plaintiff offered in evidence, the license, issued to the steamer by the United States Collector of Customs of the Port of New Orleans to engage in the “coasting trade” for one year, from April 2, 1898, together with certificate from the Oollector of Customs setting forth that a vessel licensed for the coasting trade is entitled,, by law, to employment in any of the navigable waters of the United. States.

The District Court refused to admit the evidence, stating that thf boat was engaged in trade between ports in Louisiana; that, in cons ■ quence, it was insolvant to show a license to navigate in any of .i& navigable waters of the United States; that there was no quesion raised as to the boat being licensed by the United States to engage in trade on the water’s in different States.

Defendant states, as a fact, that there was no evidence introduced to show that the police jury of St. Tammany parish had adopted an ordinance requiring the payment of a license to retail liquor.

In the application for a new trial, no mention is made of the want of proof of license issued by the parish of St. Tammany. Among the grounds urged in the application for the new trial were: that no parish license is, by the law, required for the sale of liquor on board a vessel engaged in trade between different points in different parishes of Louisiana, and that no parish license is, by law, required for the sale of liquors on board a vessel licensed by the laws of the United States to engage in commerce between the ports of the different States.

It appears of record that defendant had paid an Internal Revenue license to the general government to carry on the business in which he was engaged.

The defendant was tried by the court and condemned to pay a tine of three hundred and five dollars and costs, and, in default of payment, to imprisonment for a period of three months.

From the verdict and sentence the defendant presents this appeal.

With reference to the ruling, excluding the license and certificates issued by the Collector of Customs, we agree with our brother of the District Court; it was not, as correctly held by him, the trade for which license had been obtained, which fixed the status, but the traffic in whieh she had been engaged within the limits of the State, exclu.sively, during more than twelve months prior to the finding of the indictment.

To illustrate: Permission to do an act is not equal to the deed 'itself. One may have a license to practice has profession in different places, and yet it would not be evidence of his practising in those places, particularly, in presence of the positive evidence to the contrary.

The steamer was running regularly between New Orleans and ports in St. Tammany parish. Extent of trade, to which the license and certificate issued by the United States officer, would not have added anything, had they been admitted, as relates to the issues here, but, for reasons hereafter stated, the license was admissible on another ground; that is, to prove the home port of the steamer.

This brings us to the ground, urged by defendant, of the want of proof of a license to sustain the conviction.

The record on appeal does not disclose that evidence showed that the police jury had ever adopted an ordinance requiring the payment •of a license.

No note of evidence was taken in this ease. It does not appear in the statements, forming part of the bills of exception, that any objection was urged on the ground that no ordinance had been adopted requiring the payment of a license of retail liquor dealer. The question is settled by repeated decisions in the absence of a note of -evidence or objection properly certified; the court will presume that the judge proceeded on proper evidence. Harrison vs. Creditors, 43rd Ann., 91, and authorities therein cited.

We quote from Black on Judgments:

'“Where nothing whatever is shown, if evidence were necessary to have authorized the particular decision complained of, it will be presumed that the evidence was before the court and that it fully justified the conclusion reached. If a party rely upon the fact that there was no evidence in a ease, where evidence was necessary, he must .establish it by a proper bill of exceptions, or he will fail.” Black on .Judgments, Sec. 211.

This being a criminal case the facts are not before us, unless brought up in the manner required by the rules of appeal governing .such eases.

We take up for decision, defendant’s next ground of defense; the ■license law makes no provision for a license tax for the sale of liquor ■on board a vessel.

The fine was imposed under Section 910 of the Revised Statutes, 'in which a penalty is fixed against those who retail spiritous or intoxicating liquors without previously obtaining a license from the police .jury.

The statute is, in terms, general, and is broad enough, we think, to include those who sell liquor on board of vessels within the territorial limits of the taxing power.

The business is specifically named, whether conducted on land or on .a boat.

The fact that the business of selling or retailing liquors is not carried on in a particular place, does not change the nature of the business. It does not, when carried on on board of a vessel, essentially ■differ from similar business on land.

We all know that a barroom on a water craft is similar, as relates to its business, to a barroom on land; and we can conceive of no good reasons for holding that one is subject to a license tax while the other is not, if there is no law exempting either.

It is quite true that no occupation is licensed unless specifically ■enumerated by law. Here, no distinction is made in the statute as relates to the place where the liquor is retailed. It embraces all retailers of liquors.

But, in argument, defendant asserted that the home port of the ■steamer “New Camelia” is in New Orleans, and that only one license can be exacted for carrying on his business, and that it can be collected only at the domicil or home port of the vessel.

As relates to the vessel’s home, it was not, in our judgment, in the parish of St. Tammany. The testimony shows that she carried freight and passengers between New Orleans and different points in St. Tammany.

There are no ports in St. Tammany at which officers of the general government are stationed to issue license and register vessels, and she was neither registered in that parish, nor had a situs within its-limits.

While, in our judgment, a license can be exacted of all retailers of liquor on boats plying exclusively on the streams of this State (we purposely avoid expressing our opinion in cases of the business of bar-keeping on boats running to points out of the State), only one State and one parochial, or municipal, license can be exacted; for the controlling reason that the State is limited to- one; the subordinate political divisions are without power to exact more than one license for any one occupation. From the necessity of things, payment of a license at the domicil of a steamer to the State, and to the local authority, must operate as a protection against the exaction at any other place, otherwise the license law would have the effect of a prohibition, which was not contemplated when the license statute was enacted.

Our view, in this matter, relates to the business of conducting a barroom on steamers engaged in carrying freight and passengers in good faith, and on which refreshments for the passengers and employees are usually deemed proper.

Now, it is evident that defendant’s business was not carried on by him within the limits of the parish of St. Tammany, and that this parish is without right to collect a license on business having its situs in New Orleans, the domicil of the steamer, and of necessity of defendant’s business.

These being our views, we have not found it necessary to pursue the subject further, and pass upon decisions bearing upon other points not needful to a decision of the case.

It is therefore ordered, adjudged and decreed, that the verdict, sentence, and judgment, of the court appealed from are annulled, reversed, and avoided, and the demand made of the defendant for a fine and penalty rejected.


author: Breaux, J. Breaux, J.

text:
    No. 13,026.
    J. A. Fay & Egan Company et als. vs. Monroe National Bank et als.
    Syllabus.
    The contest was among creditors over the proceeds of the sale.
    The mortgage creditor whose mortgage was foreclosed was not a director of the corporation debtor, and was not concerned in so far as related to the payment by the latter of !ts indebtedness.
    The mortgage creditor, holder of notes deposited as collateral security, had the right to foreclose and to have the property sold. The testimony does not disclose as between the two corporations that the property was sold In the proceedings of foreclosure for the purpose of defrauding creditors by change of title. There was no collusive agreement between the two.
    ON APPEAL from the Fifth Judicial District Oourt for the Parish of Ouachita. Potts, J.

      A. A. Quniy for Plaintiffs, Appellants.
    Hudson, Potts & Bernstein for Defendants, Appellees.
    Argued and submitted January 30, 1899.
    Opinion handed down February 6, 1899.
    Rehearing refused, for reasons assigned, March 7, 1899.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs, judgment creditors of the Ouachita Excel■sior Saw and Planing Mills, Limited, ^brought an injunction suit against the defendant to enjoin it from foreclosing its mortgage, and to annul the mortgage the latter was seeking to foreclose.

The injunction was bonded by the defendant, and it proceeded with the foreclosure of its mortgage, and had the property mortgaged sold. The property was bought for the bank 'and at the request of the bank it was afterwards transferred to the West Monroe Lumber Company. The property thus sold was all the property owned by the Ouachita 'Excelsior Saw and Planing Mills.

The notes upon which the bank foreclosed were held as collateral security to secure the payment of the amount of its claim against the Ouachita Excelsior Saw and Planing Mill. One of plaintiffs’ contentions is that the mortgage was executed in favor of L. D. McLain; that he was not a creditor of the Ouachita Excelsior Saw and Planing Mill, and that he had no right to dispose of the notes. The mortgage securing those notes as to their payment is attacked on a number of grounds, chiefly that the Saw Mill Company did not owe the bank anything, and that it neither owned nor possessed the notes, the basis-of the proceedings of foreclosure.

Plaintiff charges, in argument, that the sale was a consent sale, a mere simulation, whereby a number of creditors, including plaintiffs,, lost their claims.

The indebtedness of the mill to the Building and Loan Association was thirteen thousand four hundred and fifty-six 60-100 dollars, and the bank six thousand eight hundred and sixty-one 02-100 dollars. There does not seem to be any serious question about the indebtedness to the former. As to the latter, Flournoy, the cashier of the-bank, swears that it was due by tho Ouachita Excelsior Saw and' Planing Mill to the bank.

With reference to the notes deposited as collateral security to-secure this last stated sum, the cashier swore:

“Q. Were they delivered to you, then, as collateral for the indebtedness of L. D. McLain, or for the Ouachita Excelsior Saw and Planing Mill ?

“A. For the mill, as that receipt states.

“Q. Not for any indebtedness to Capt. McLain?

“A. No, sir.”

Further testifying, he said: “Our interest was to get our debt of six thousand eight hundred and sixty-one 02-100 dollars.”

The president of the bank testified that the debt was contracted before the creation of the debt due plaintiff.'

In the District Court plaintiffs’ demand was rejected. From the judgment, plaintiffs prosecute this appeal.

It was shown, by sufficient testimony, that the Ouachita National Bank was a creditor in the amount before mentioned; as such, it had a right to accept notes as collateral security, and at their maturity to-foreclose the mortgage by which they were secured.

We take it that the Mill Company was indebted, beyond question,, in the amounts before stated, but we understand that the complaint is directed against L. D. McLain, who was one of the directors of the Mill Company, and against the method followed, which resulted in a transfer of the mill property of the Ouachita Excelsior Saw and Planing Mill Company to another company known as the West Monroe Mill, organized, plaintiff charges, for the purposes of succeeding to the business of the former company, and thereby enable it to escape the execution -of its creditors.

The bank had the right to foreclose its mortgage. The notes that had passed through the hands of one of the directors of the Mill Company to facilitate the transaction, as we take it, and not with the view of benefitting the director, became its notes in due course of business. The intervention of the director in the negotiation which resulted in the bank becoming owner of these notes in good faith, did not affect its right to collect them.

The insistence is that no money was paid by the bank, but this is-not sustained by the testimony. It is true that the bank claimed the-face value of the notes it held, and obtained an order of seizure for the whole, while, in reality, the principal was considerably less, a claim, it is true, which should not have been made, yet a demand for a larger amount than should have been claimed does not affect the right to collect the sum actually due.

After the injunction had been bonded the property was offered for sale by public auction in accordance with the terms of the advertisement, made in the foreclosure proceedings, and it was adjudicated to an attorney, as we take it, acting for the bank. We do not understand that the right to bond vel non is before us for decision.

The attorney, shortly after, in accordance with the direction of his principal, sold the property to the West Monroe Mill Company.

In argument ,at bar, -and in the brief, complaint was directed against their adjudication and subsequent sale to the West Monroe Lumber Company.

The judge of the District Court states, in his reasons for judgment, that he refused to admit testimony to show -a collusive agreement to sell this property and have it purchased by the West Monroe Lumber Company for the purpose -of defrauding creditors of the Ouachita Excelsior Mill Company, as nothing of this sort was mentioned in the allegations. We agree with onr learned brother of the District Court, it was not an issue of the case.

As to pleadings, of course, plaintiffs must specifically set forth the grounds upon which they base their action, but if we should take it ■that the- testimony received, without objection, reformed the pleadings, it, the testimony admitted, does not sustain a cause against the West Monroe Lumber Company, a corporation not responsible for individual acts of a director.

This company bought the property virtually from the bank, and in the light of the evidence before us the corporation itself has committed no wrong for which it can be held in these proceedings. We have not found ground to annul the act of sale made to the West Monroe Lumber Company. By means of its purchase, the price, part of which went toward paying a portion of the claim o-f one of the plaintiffs, was paid or a settlement equivalent to payment was entered into with the creditor, the bank. The following may serve to illustrate : A proposes to B to buy C’s property mortgaged to B, provided in case of purchase at public auction B will assist him, A, in paying the price. The transaction is not condemn able under the law even though it may have the affect of reducing C to a condition of absolute insolvency. The manoeuvers of others can not affect the rights of A, who becomes the owner.

Here, the West Monroe Lumber Company may be said to be in the position of A.

If there had been a predetermination to wreck the Ouachita Excelsior Saw and Planing Company, with the evidence before us, and under the pleadings, it would not be possible to hold the West Monroe Lumber Company, an independent organization, responsible for the wreckage. It stood for the price at which the property was adjudicated. It was divided among the creditors, prior in rank of claims, and among them, to an amount stated, was one of the plaintiffs. There was, to that extent, so far as we have found, no offending against the law; no collusive agreement.

The directors, as we understand, are not claiming anything in opposition to creditors. It is a contest among creditors over the proceeds of a sale made in foreclosure proceedings. The case does not come within the application of the rule laid down in Cahill vs. People’s Slaughter House Company, 47 Ann., 1483.

We well understand that a president has no right in the interest of the bank he represents, and much less in his own, to form corporations to defeat creditors. Such combinations do not meet with the law’s sanction, but in this case in which the purpose was to have annulled a mortgage in face of the fact that all the evidence proves the reality of the mortgage, we have not found it possible, on allegations made, in law, to hold that the combination charged was entered into; besides, the new company is not such a corpus sine animus as it would have to be, in order not to take it into account at all — to ignore it .altogether. It is an “intellectual body, created by law, composed of individuals united under a common name, and as such entitled to citation and to stand in judgment in all matters affecting its rights,” and .as such entitled to hold the property it bought.

There is a question about three hundred and sixty-three dollars ■of the price, as to how it was credited, if at all. As to this amount, plaintiff’s rights are reserved as in the case of non-suit.

For reasons assigned it is ordered, adjudged and decreed, that the .judgment appealed from is affirmed, save as to three hundred and .sixty-three dollars, the right to which is reserved as just stated.

On Application for a Rehearing.

Breaux, J.

We have re-examined this case, and reconsidered the law and the facts involved.

We are convinced that our decree is correct, particularly for the ■reason that the company, West Monroe Mill, owner of the property, whose title is attacked, is not a party.

We have not changed our views, as heretofore expressed, save in an unimport ant particular.

The Code of Practice directs:

“If the judgment be reversed, in whatever degree it may be, the •appellee shall pay the costs.”

Having disturbed the judgment below in matter involving three hundred and sixty-three dollars, and reserved to each party (plaintiff and defendant) his right as to claim, we think the change is enough to carry costs.

The question being plain enough, without further hearing;, the •change as relates to costs is ordered.

Our decree remains; the defendant and appellee to pay the costs.

Rehearing refused.


author: Breaux, J. Watkins, J.

text:
    No. 12,925.

      W. G. Dunning vs. Walter O. West.
    Syllabus.
    All persons not expressly disqualified may testify. Effect may be given to a statute repealing a disqualifying statute immediately after it becomes a law.
    When the law abolishing the disqualification of certain witnesses was enacted (Statute No. 190, enacted in 1898), it went into effect and applies to pending cases. Hennen’s Digest, Vol. 1, p. 789, §5.
    Justice between the parties demands that the ease be remanded.
    ON APPEAL from the Civil District Court for the- Parish of Orleans. King, J.

      D. M. Sholars (Benjamin Bice Forman, of Counsel,) for Plaintiff and Appellant.

      Horace B. Upton and Robert J. Maloney for Defendant, Appellee.
    Argued and submitted December 9, 1898.
    Opinion handed down January 23, 1899.
    Rehearing refused, reasons assigned, March 7, 1899.
   Breaux, J.

Plaintiff sued the defendant for damages in the sum of twenty-five thousand dollars, caused by the negligence and want of' skill of defendant’s employee, who* as a dentist, extracted two teeth of plaintiff’s wife.

Plaintiff’s petition sets forth that, on calling at defendant’s office,, she was received by him. She complained of an aching tooth. The-defendant, without having examined her teeth, placed her under the care of an assistant. Thereupon, he, plaintiff avers, the assistant, without any examination or diagnosis to 'make certain that the-pulling of a tooth was necessary, extracted two of the teeth of her lower jaw.

It was charged that it was,wilful negligence and malpractice; that the pulling of her teeth was unnecessary, and that they were pulled in an awkward and unskillful manner. That a few minutes after, believing that her jaw bone was fractured, she returned to his office- and earnestly complained of. her affliction, but the assistant, to whom she complained, assured her that she was mistaken; that from the time the teeth were extracted she suffered pain in the bone from which the teeth had been extracted, and twelve days after the piece of the jaw bone had been detached in extracting the teeth; that spicula worked through her gums and was-taken from her mouth by her; that this detached bone in the gums, which defendant’s assistant had failed to take out, .caused inflamation of the periosteum, which inflamation extended to the remaining teeth of the lower jaw. That other teeth were extracted under the advice of a skillful dentist and physicians, without affording her any relief.

It is contended by plaintiff the injury was occasioned by the unskillfulness of defendant’s assistant, which he alleges resulted in necrosis, or decay, of the lower jaw, for which she had to undergo a most painful operation, which resulted, he avers, in disclosing not only periostitis, but also the presence of a lower portion of the detached jaw bone brought about by the unskillful extraction of a tooth; that a piece of the jaw bone had to be removed, and that it broke near the centre, and to preserve its continuity the ends were tied with silver wire, and the pain and suffering have undermined her health, and ha avers -she is a physical wreck and has a permanent scar on her face.

The testimony elicited, on the part of the defense, shows that she was riding a bicycle on St. Charles street about two weeks later, and that a piece of tooth, or spicula of the bone, came out of her gum.

Two weeks after this first ride she fell from her bicycle while again riding.

The defendant pleaded a general denial.

The evidence -shows that previous to the 16th of October, 1896, Mrs. Dunning’s health was very good, and that she has never been in a healthy condition since, and still suffers.

The physician found, a short time after the teeth had been extracted, that she was suffering from diseases of the jaw bone, shown by the signs of inflammatory disturbance about the jaw. One of the witnesses, who had been the physician of plaintiff’s wife, testified that he found no other cause for the trouble except the extraction of the teeth, and added, that he did not know whether they were pulled unskillfully or skillfully, and another of plaintiff’s witnesses, a physidan, also, testified that it was a possibility that her illness was exclusively the result of unskillful extraction of the teeth.

The defendant also examined witnesses, among them a well known dentist with an experience of fifty' years, who said that all dentista who extract many teeth know that it sometimes happens that in extracting a tooth, a portion of the alveola process is broken, especially in pulling, that a little fracture is of no importance; it is a common occurrence; that it would be impossible for a physician, even a dentist, to tell three or four months after teeth had been extracted, whether they have been skillfully or improperly extracted; that, under ordinary conditions, a skillful dentist will not fracture the jaw bone in pulling a tooth, with the exception of possibly a small fracture of the socket, or alveolus, 'at the curvical part of the tooth; that if such an accident should happen, as the breaking off of a part of the jaw bone, ordinary prudence would suggest that the bone should be immediately removed, but that he had never heard of any dentist breaking a jaw bone in extracting an inferior bicusped. The two lower bicuspeds were the teeth extracted.

In answer to a question, this witness testified that if the lower bicuspeds had been extracted with the roots attached, it would be very good evidence of a careful and skillful extraction of those teeth.

Another dentist, an expert witness, testified that it is impossible almost to extract a tooth without some light fracture of the alveola process. lie expressed the opinion that even sometimes after a tooth has been extracted, it is possible to tell whether the teeth have been properly or improperly extracted.

The dentist by whom the teeth were extracted, and the defendant, both testified, denying the charge brought by plaintiff. The former was a graduate of a dental college. He is a dentist since 1890, and has pulled many teeth, as an employee of the defendant, and prior to his employment by him he was engaged in work of that profession. In matter of the facts, we note that the teeth were pulled out October 16, 1896. Some ten or fifteen days after she called on another dentist and had teeth extracted. She consulted her physician on the first of November, 1896. She consulted a specialist, first, in the latter part of October, and again in January following. About the 9th of .February, 1897, a surgical operation was performed.

The District Court rejected plaintiff’s demand.

From the judgment the plaintiff prosecutes the appeal.

The first objection now before us for determination comes on a bill of exceptions to the court’s ruling excluding the evidence of Mrs. Dunning, for the reason that the suit was brought in the name cf the husband alone, and that if any damages should be recovered they would fall into the community.

The bill sets forth that the witness was offered to prove her agency, that she made the contract, as the representative of her husband, for services to her personally; and that she being alone cognizant of what she did, and what she suffered, she is a necessary witness within the rule of competency of witnesses where they are the only persons having knowledge of the fact. We will, later, refer to the grounds of the bill of exceptions which are urged by plaintiffs in support of their application to have the case remanded.

On the Merits.

The testimony shows that plaintiff, who was suffering with toothache, called upon defendant to extract the aching teeth. He placed her in charge of his assistant. The latter testified that he made the usual examination, and found the teeth, that he afterward extracted,, inflamed. He, also, as a witness, stated that he administered an anasthetic; i. e., that he applied nitrous oxide, or gas, and took them out as teeth are usually extracted; they were not broken in extracting them; no accident happened.

A short time (a few moments) after the operation, plaintiff’s wife returned to defendant’s office and complained to the assistant, by whom her teeth had been extracted, of a piece of bone of the jaw, or of the tooth, she said was left in her mouth. His reply was, after examination, that the little bone that she felt would disappear. She subsequently suffered great pain, from which she sought relief by having the teeth extracted, but this did not afford relief. The dentist who pulled her teeth, after the two bicuspeds had been pulled, noticed nothing unusual about the gums of the teeth that had already been extracted. The gum was healing.

The operations by the physicians revealed that there was enlargement of the jaw, in all probability depending upon a necrosis or dead portion of the jaw.

At this point we conclude that justice demands that the case be remanded for a new trial.

The evidence, in our view, is not absolutely sufficient to do justice between the parties. Although the testimony before us leaves scarcely .a doubt upon the merits, yet we are unwilling to deny a hearing to witnesses who may, under the present law, be heard.

We have not found it possible to concur in the decree in the present condition of the ease.

It is doubtful whether we should affirm the judgment. We think, under the circumstances, the proper course is to remand the case. It may be, indeed it is probable, that the result will bo the same as if we were to finally decide at this time, yet, in our judgment, further testimony should be heard. The admitted testimony will remain as admitted, without the necessity of re-offering it, so that only new ■ evidence need be offered.

There is no question here of a new fact, or of new discovered evidences; the only question really is whether the law enacted after the ruling in the court below should be considered as now applying. We think it does apply.

The law is entirely remedial and affects none of the vested rights of , any one. This corut said in Baldwin vs. Bennett, 6th Robinson, 309: “Under the constitutional provisions relied on, no acquired rights and pre-existing contracts can be effected by subsequent legislation. But it is otherwise with regard to remedies and forms of proceedings. Whatever relates to the manner of conducting and trying a suit (litis ordinatio) is always within the control of the legislature, who can, at .any time, make any change or modification they may think condusive to the public good and proper administration of justice in our courts.”

It is ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and that this case be remanded to hear any other testimony admissible at this time, and for a decision by the District Court, after the testimony will have been heard, and altogether to be proceeded with according to law in such ■cases. The costs to abide the final determination of the case.

On Application for Rehearing.

The opinion of the court was delivered by

Watkins, J.

Our decree reversed the judgment rejecting plaintiff’s demand for damages, and remanded the cause to the lower court, with directions, that it admit and consider the evidence of the plaintiff’s wife, which had been rejected on the ground that same was inadmissible in view of the fact that the suit was brought by the husband— the wife having been the one for injury to whom the suit was insti.tuted.

The point of objection made and sustained in the District Oourt was that, under Revised Oivil Code, 2281, the wife was not competent to testify for or against her husband.

But the legislature of 1898 so amended that article as to make it ■ conclude as follows, viz.:

“Provided, further, that in all civil suits for damages, instituted by '“the husband for, or on account of personal injuries sustained or ' “suffered by his wife, the wife shall be a competent witness.”

Section 1 of Act 190 of 1898.

Our opinion held that that “law is entirely remedial, and affects none of the vested rights of any one.” Citing Baldwin vs. Bennett, 6th Rob., 309.

This conclusion was not hastily reached, but after the most mature ■deliberation.

The present contention of defendant’s counsel is that, as the statute was enacted subsequent to the rendition of judgment in his favor in the District Court, the interpretation now given it has the effect of divesting a vested right of property he acquired therein.

But the accepted canon of construction of retroactive laws, or those to which a retrospective effect is given, is that “whatever relates to the '“manner of conducting and trying a suit is always within the control “of the legislature, who can, at any time, malee any change or modification they may think conducive to the public good, and a proper “administration of justice in our courts,” etc.

In our opinion this statute furnishes an apt illustration of that .rule, and that our decree was a proper one.

Rehearing refused.


author: Blanchard, J.

text:
    No. 13,056.
    State of Louisiana vs. William C. Picton.
    Syllabus.
    1. Defense sought to exclude certain testimony on the ground that it involved a confession of guilt by accused. Exclusion was claimed on the ground that the confession was brought about by threat of prosecution if settlement of moneys embezzled was not made. Held : Not a case of confession of guilt admitted to the jury without proof of.its voluntary character.
    2. There is a broad distinction between the mere admission of inculpatory facts and a confession of guilt.
    3. ’ Acknowledgement of facts tending to establish guilt differentiated from confession. A damaging fact may be admitted without any intention 1o confess guilt.
    4. Where a person only admits certain facts from which the jury may or may not infer guilt, there is no confession.
    ON APPEAL from the Crimianl District Court for the Parish of Orleans. Baker, J.

      M. J. Cunningham, Attorney General, and Robert H. Marr, District Attorney, (Chandler 0. Luzenberg, of Counsel) for Plaintiff and Appellee.

      J. II. Ferguson and Henriques & Dunn for Defendant, Appellant.
    Submitted on briefs February 25, 1899.
    Opinion handed down March 7, 1899.
   The.opinion of the court was delivered by

Blanchard, J.

From a conviction for embezzlement and a sentence-of eighteen months at hard labor, defendant appeals.

. At the time of the commission of the offense with which' he igcharged, the accused was rate clerk of the Southern Pacific Railway-Company.

As such it was part of his duty to receive money for freight sent' over the lines of the company prepaid, and the averment of the bill' of information is that he embezzled certain funds so received, placing; the amount at seven dollars and thirty-nine cents.

He relies for reversal upon what is claimed to he an erroneous1 ruling of the trial judge in admitting the testimony of Fay, Pettigrew-' and Wermuth, witnesses -for the prosecution, who testified to certain! conduct and statements of the accused after the shortage in his accounts was discovered, but before any formal charge of violation of law had been preferred against him.

The contention of defendant is that the object, intent and scope of this testimony was to show that defendant had confessed and admitted his fault to Fay, assistant manager of the Southern Pacific Company, and therefore “one in authority.”

The objection was to any such statement, or admission, or confession, on the ground that, if made, the same was occasioned and brought about by undue influences and through threats or promises made by said Fay, by means of which defendant was induced to admit a shortage in his accounts, and to agree to settle same in order to avoid publicity and escape prosecution.

All of the testimony relating to this feature of the case was taken down in writing, and comes up in the record as part of the bill of exceptions.

From it we learn that the accused had been for some years in the employment of the Southern Pacific Company; that within a day or two of the end of October, 1897, he suddenly left his position, and for several days his whereabouts were unknown to his employers; that an investigation of his accounts followed, and a shortage was discovered; that -this becoming known, Mr. Givens, a brother-in-law of his, called to see Fay, manager of the company, and stating he understood defendant was in some trouble, asked that the matter be kept quiet until it could be investigated, and enquired if defendant would be given an opportunity to go over the accounts, to which Fay replied he-would; that shortly afterwards, Givens, Ferguson and Kingston (the-two latter, friends of the accused), called to see Fay, who had had some-conversation over the telephone with Ferguson about the matter; that the object of this visit was to arrange an amicable settlement of the1 shortage, to the end of satisfying the claim of the company and relieving the defendant of the apprehension of prosecution; that several interviews on the subject were had by these parties with Fay; that the latter insisted the entire shortage, amounting to something like two thousand dollars, should be made good, and that if it were, so far a» he and the company were concerned, the prosecution- would not be-pushed; that if it were not settled a vigorous prosecution would follow ; that the matter was talked over between these parties and defendant and his wife; and that defendant, at his wife’s insistance, and accompanied by her, and upon the advice of his brother-in-law, Givens, called upon Fay at his office on two occasions.

' Defendant’s version of what took place when he called to see Fay is, in substance, as follows: That he had been informed of the threat of prosecution if the matter was not settled; that to avoid publicity and for the sake of his family he went to see Fay; that he told the latter he was innocent and not guilty and that the shortage was the :result of a series of mistakes; that he asked to see the list of items •of the alleged shortage and the same was shown him; that Fay suggested the terms of a settlement which were that he (defendant) should pay one thousand dollars cash and give his notes, secured, for •the balance, payable in monthly installments of $25.00; that he told Fay he would look into the matter and let him know; that there was no understanding between him and Fay as to immunity from prosecution in the event of settling the shortage, but the conversation with Fay was induced by the threat of prosecution which had been communicated to him, together with the promise of no steps being taken to prosecute if settlement were made; that when he had these conversations with Fay he (the accused) was not under the authority of Fay, nor in the employ of the Southern Pacific Company, and had not been for over two months, and was in the service of a Mr. McGuire; and that while neither Fay, nor other parties representing the company, had told him they could stop the prosecution, he (defendant) knew things had been hushed up before.

Manager Fay’s version of what took place- between defendant and himself is, in effect, as follows: That defendant and his wife came to his office as the result of a previous appointment made by his (defendant’s) brother-in-law; that he (Fay) sent for Wermuth (in the employ of the company) and Pettigrew, who was agent of the security company that had gone on defendant’s bond; that these parties came and defendant asked Wermuth to show him the statement of the shortage, which he did, and he and Wermuth had some conversation about the shortage; that since defendant claimed the shortage was due to mistakes, it was offered him to go over the accounts and point out the mistakes and the services of a man to assist in the investigation were tendered him; and that he did not avail himself of the offer to ■examine the accounts, nor did he offer any explanation as to how the mistake occurred, but did aver at both the interviews his innocence of the charge of taking' the company’s money.

The witnesses Wermuth and Pettigrew testify substantially as did Fay, with more or less of detail.

As laying a foundation for the objection to the evidence of Fay, Pettigrew and Wermuth, the defense put Givens, the brother-in-law, and Ferguson and Kingston, friends of the accused, on the stand before the judge (the jury having been retired at request of counsel for defendant) to prove their conversations with Manager Fay relative to the shortage, the threat of prosecution if not settled, their efforts to arrange for a settlement, etc., and the fact that they communicated these things to the defendant.

The trial judge ruled the testimony of Fay, Pettigrew and Wermuth to be admissible, on the grounds: That the objection went rather to its effect than to its admissibility; that the real question presented was whether any such threat or promise had been made to the accused as would be likely to cause him to tell an untruth-for fear of the threat, or from hope of profit from the promise; and that if what had taken place could in any sense be regarded as a confession, then, necessarily, its admissability as evidence would depend upon the circumstances under which it was made.

He then goes on to say the testimony objected to did not, Lo his mind, suggest that at the time the accused saw Fay, anything he said there was caused either by threat or inducement; that defendant went voluntarily to get a statement of his shortage and to go over his accounts; that Fay not only consented to his going over the accounts, but offered him assistance in the work; that that portion of defendant’s testimony in which he speaks of an offer to compromise by the payment of $1,000.00 in cash, and balance in notes, did not go to the jury; that the testimony of the defendant, made part of the bill of exceptions, corroborates Fay as to what was said between them; and that, thus, the objection is not as to the truth of the statements, but on the ground that defendant’s visit to Fay was caused by threats of prosecution.

“I was asked,” he says, “to exclude this evidence because it was induced by threats and, therefore, likely to be untrue, when at the same time, and as a basis for its exclusion, the defendant testifies that it was true, and but repeats Fay’s statement as to what took place. As this interview was sought by defendant, all that occurred, and not detached parts, was, in my opinion, evidence proper for the consideration of the jury, when the facts showed that the defendant was in a. position to speak, and when opportunity was offered and assistance tendered him to show where he had made the errors claimed.”

■ While we may not concur in all the judge says in support of his-ruling, we agree with him in the main.

The testimony sought to be excluded was properly received.

Wp do not regard this as a case of confession of guilt admitted to the jury without proof of its voluntary character.

We look in vain in the narrative of what took, place for a confession or admission of his guilt by defendant. On the contrary, he-steadfastly asserted he was innocent of the charge.

A statement or declaration to amount to a confession must be inculpatory, and not exculpatory in its nature. A. & E. Ency. of Law, 2nd Ed. Vol. 6, 521, 522.

A confession is limited in its precise scope and meaning to the criminal act itself. It does not apply to' acknowledgements of facts merely tending to establish guilt, since a damaging fact may be admitted without any intention to confess guilt. These are criminating admissions rather than confessions. Ib.

There is a broad distinction between the mere admission of inculpatory facts and a confession of guilt. Where a person only admits certain facts from which the jury may or may not infer guilt there is no confession. Covington vs. State, 79 Ga., 690.

The acts and conduct of a party at or about the time when he is charged to have committed a crime are receivable as evidence of a guilty mind, and while, in weighing such evidence, ordinary caution is required, such inferences are to be drawn from them as experience indicates is warranted. Rice on Evidence, Vol. 3, p. 503; also 500, 501, 502, section 318; Bishop New Crim. Proc. sections 1253, 1254; Clark’s Crim. Proc. 511; Wharton’s Crim. Ev. Sec. 679; A. & E. Ency. of Law, Vol. 6, 557.

There was no confession of defendant, and being none there was no basis for urging exclusion of the testimony because brought about by threats of prosecution on the one hand, or immunity from prosecution on the other.

That defendant’s conduct, demeanor, silence in some things, acqui•eseenee in others, in his interviews with Fay, was damaging to his ■case, there can he no doubt.

But the facts showing this were competent to go to the jury, from which it was their province to draw such inferences, or make such deductions, as they thought proper.

It has been held that the rule of inadmissibility of a confession procured by threat or promise, does not apply to admissions not involving the existence of a criminal intent.

In People vs. Parton, 49 Cal., 632, it was said: “An admission of a fact, not in itself involving criminal intent, is not to be rejected as evidence (without preliminary proof) merely because it may, when connected with other facts, tend to establish guilt.”

In People vs. LeRoy, 65 Cal., 613, this language appears: “The point most relied on by counsel is that the court below erroneously admitted in evidence certain statements made by the defendant to the witness Lees. It is claimed that those statements were not voluntarily made, but were extorted from the defendant by means of threats ■or promises. * * * However this may be, it is a sufficient answer to say that the statements made by defendant, concerning which the witness for the prosecution was permitted to testify, did not constitute :0 confession admissable only after proof that it was made voluntarily. A confession is a person’s declaration of his agency or participation in ■a crime. The term is restricted to acknowledgements of guilt. The statements of defendant given in evidence were not acknowledgements ■of his guilt; on the contrary, in his statements he all the time denied his guilt. The matters admitted by him, however, while not in them■selves involving his guilt, did, when connected with other facts, tend to prove it. But proof of such was competent.”

This ruling of the California court seems peculiarly applicable to the case at bar.

See also People vs. Heckman, 133 Cal., 80, and McLain vs. State, 18 Neb., 154.

"We are constrained to hold defendant was properly convicted, and ■the judgment appealed from is, accordingly, affirmed.