author: Watkins, J.

text:
    No. 10,175.
    Mary L. Davies vs. City of New Orleans.
    It is the duty of the City Council, as soon as it is practicable, to adopt some plan for draining the entire area of the city of Now Orleans, and keeping it free from rain, river and storm water; but the expense of such a system of drainage must be provided for lay a local assessment imposed on the property drained.
    Jit is also made the dnty of the Council to maintain the cleanliness and health of the city, andi to this end they are required to adopt some efficient mode of draining the streets, and of keeping them open and free from obstructions, and of keeping the canals clean and in good repair. But the expense of the same must be raised by ad valorem taxation.
    One involves a question of local improvement and assessment, and the other of the exercise of the police power in the administration of city affairs.
    APPEAL from the Civil District Court for the Parish of Orleans. Jtightor, J.

      W. 8. Benedict for Plaintiff and Appellant:
    Where a public corporation ratifies the tortious aets of its agents, it will be liable therefor - McG-ary vs. Lafayette, 4 Ann. 440; McG-ary vs. Lafayette, 12 Rob. 668; 12 Ann. 15; 13 Ann. 426.
    The right of eminent domain is limited to the actual necessities of the case. Wood's Field on Corporations, 2d edition, sec. 403.
    A municipal corporation is responsible for the damage caused by the change of grade of streets, and for its work negligently and unskilfully done, to the injury of others. Dillon on Municipal Corporations, 3d edition, vol. 22, pp. 969, 970, secs. 968, 993, 1011,1036.
    A municipal corporation cannot by its acts rendering property useless, refuse to indemnify the owner, and yet tax ihe property as if of value. Same authorities.

      Francis B. Lee, Assistant City Attorney, for Defendant and Appellee:
    1. Municipal corporations cannot he compelled by mandamus to establish throughout the corporate limits, nor in any part thereof, systems of street and sidewalk lighting and . improvement, and drainage or sewerage; nor can they he held responsible in damages for failing to establish such systems. The inauguration of such enterprises is exclusively within the judicial or quasi-jndicial or rather legislative discretion of the municipal authorities, and not subject to control. Dillon on Municipal Coiporations, secs. 686, 1046, cl seq., and notes.
    2. Municipal corporations are not responsible for the non-eqecution of their ordinances, unless there be in existence a statute declaring such liability, or unless there be a valid contract creating it. Dillon, sec. 950.
   The opinion of the Court was delivered by

Watkins, J.

Alleging herself to be the owner of several squares of ground situated in the sixth municipal district of the city of New Orleans, the plaintiff complains that same are annually assessed for taxes, notwithstanding they derive no corresponding benefits in the way of drainage, lights, police protection, sidewalks or bridges — all of which it is the duty of the defendant to furnish.

She represents that “some time since,” the city caused a ditch to be dug at the distance of one square from the front of her property, which is at all times filled with water, which overflows its banks and floods her land, and renders it valueless for any purpose whatsoever.. She further avers that the work performed in the construction of said ditch was so carelessly and unskillfully done that the damage complained of was caused, and which she estimates at $3,000.

She prays judgment for damages, and for a decree directing the city to perform her duty in the premises, and “to make the proper bridges, open the necessary canals, and do such other work, in connection with said property, as, under the law and the facts presented may be proper.”

The answer of defendant is a general denial, coupled with a plea of no cause of action. There was a judgment in favor of the city and the plaintiff has appealed.

The facts appear to be as follows, to wit:

The plaintiff became the purchaser of the squares of ground men. tioned, in July 1885, for the price of $415.50 and instituted this suit in the following December. They are unimproved and unoccupied. In 1884 they were assessed for tbe aggregate sum of $2400, and in 1885 for the sum of $2600; but no part of the taxes have been paid, by either plaintiff or her vendors. They are situated between two contiguous and parallel streets, Delachaise and Amelia, which extend at right angles with Dryades street. These squares lie, one in the rear of the other, No. 507 being in front, and fronting on St. Dennis street, it being just one square from Dryades street. The ditch of which the plaintiff complains was constructed in the street last named, and extends from General Taylor street to Louisiana Avenue. The evidence fails to disclose at what time this ditch was dug, or by whom the work was performed ; nor does it appear whether the work was skillfully or negligently performed. There is an accumulation of water from which three or four of the squares, on the front end of the column of squares, are flooded at some times, and which are, at all times, rendered wholly unsuited for the purposes of building, improvement or occupancy.

This water, in much the greater part, flows through other canals from the ice-works into the Dryades street ditch, and the remainder is rain water.

It appears that if Delachaise and Amelia streets were ditched, and the ditches kept open and free from obstructions, there would be a free passage-way for the surplus of water into the Claiborne drainage canal.

There was introduced in evidence an ordinance of the City Council which directed the opening of ditches in those streets named, with the view of establishing a connection between Dryades street ditch and the Claiborne drainage canal. But it was adopted in 1884 — nearly one year prior to plaintiff’s purchase of the property — and it does not appear why same has not been enforced.

This evidence not only does not sustain plaintiff’s demand for damages, but it clearly shows that she is not entitled to any. '

The precise condition of things existing when she brought this suit, existed at the date of her acquisition of the property, and had, theretofore, existed for many years. It is perfectly obvious that, in its present condition, plaintiff’s property requires neither banquettes, electric lighting, nor police protection. It may.well be that these vacant squares of ground are in need of drainage and bridges, quite as much as they require dwellings and inhabitants, but it is not more the duty of the defendant to furnish the former, in the manner proposed, than' it is the latter.

It may well be that the City Council should inaugurate some appropriate system of drainage, whereby those properties, and others similarly situated, might be reclaimed and made habitable.

The law provides that “it shall be the duty of the Council, as soon as practicable, to adopt a plan for the thorough draining and keeping dry, and free from river water, and the rapid carrying off of rain and storm water, for the entire area of the city of New Orleans; in adopting such plan of drainage, the Council shall impose a specific assessment for local improvements, not exceeding the increase m value of the property drained, occasioned by the drainage.” Section 43 of Act 20 of 1882, which provides a charter for the city of New Orleans.

This power is altogether different from the one that is conferred by Sec. 7 of that act; i. e., “to maintain the cleanliness and health of the city, and to this end to adopt and provide an efficient system of drainage, * * * to open and keep open and free from obstructions all streets, * * * and to keep the street crossings, bridges and canals clean and in repair.”

It is the former and not the latter power which the petitioner, infer•entially, invokes. It is a question, purely and simply, of drainage, and not of police or of administration.

Its exercise must appertain to the entire area of the city, and neces■sarily involves the adoption of some plan for the draining of rain, river and storm water. This is in the nature of a local improvement, and the expense must be borne by the property drained; and it must be apportioned by a specific assessment, which shall not exceed in amount -the increase in value given to the property. 2 Dillon Munic. Corp., sec. 596; 38 Ann. 326, Charnock vs. Levee Company.

The means must be provided by taxation to enable the city authorities to maintain the cleanliness and health of the city;”, and to do this, they are required to keep the streets free from obstructions, aDd the ■canals clean and in repair.

It is perfectly clear to our minds that the plaintiff’s pretensions are groundless. She has evidently sought the aid of the courts with the ■expectation of making a successful venture of a speculation, and has failed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 10,217.
    State of Louisiana ex rel. R. W. Schlater vs. Judge of the Twenty-third District Court, Parish of Iberville.

      JL bill of exceptions is only necessary for the purpose-of disclosing to the appellate court what the judge’s ruling was, and the grounds of objection thereto. If they appear of record, the right of the party excepting is fully preserved without the rotontion of a hill.
    A P.PLICATION for Mandamus.

      Samuel Matthews and Chas. O. Lauve for the Relator.

      Geo. Wailes, Alex. Héhert and B. W. Sims for the Respondent.
   The opinion of the Court was delivered by

Watkins, J.

During the progress of proceedings in a suit pending in the respondent’s court, in which the relatrix is plaintiff, and A. Wilbert & Sons are defendants, counsel of the former caused an amended petition to be filed, which on objection urged by counsel of the latter, was stricken from the record. To the respondent’s ruling counsel for relatrix excepted, and tendered a bill of exceptions, which the former ■declined to sign, and the latter has applied for a mandamus to compel Mm to sign said bill.

The respondent returns that there is no rule of our practice which requires him to sign a hill of exceptions in case all the proceedings are of record, and a note of them appears in the minutes of the court. He has annexed to his answer a copy of the minutes for the purpose of showing that all of the proceedings are of record, and that the rights-of the relatrix will he perfectly protected in the event of an appeal.

In thus ruling the respondent was certainly correct.

The provisions of the Code of Practice on this subject are, that “if one of the parties calls on the court to express an opinion on a point of law arising in the cause, such opinion may be excepted to.” Art. 487-

And that “the party excepting to the opinion of the court must draw a bill of exceptions in which the question of fact, or of law, on wliieh such opinion has been demanded, shall be concisely set forth, as well as the grounds of the exception so taken.” Art. 488.

In construing these articles, this Court said in State ex rel. Gaines-vs. Judge, 12 Ann. 113, that “the object of a bill of exceptions is to» place on the record, and make part thereof, something which was done under the order of the court during the progress of the cause, which would not otherwise appear, in order that the question of law arising-from the ruling of the judge, in the matter excepted to, may be reviewed by the appellate court.”

It is obvious, then, that the Code only contemplates that a bill of exceptions should be signed and filed in the record when it is necessary to disclose to the appellate tribunal what the judge’s ruling was,, and what was the ground of objection thereto. Harrison vs. Way-mouth, 3 R. 341; Commissioners vs. Yorke, 4 Ann. 138; Scott vs. Lawson, 10 Ann. 547.

In the instant case there was no necessity for a bill of exceptions to-have been retained, as it fully appears from the record what the judge’s-ruling was, and also, what was the objection thereto; hence the application of the relatrix must be refused.

It is therefore ordered and decreed that the preliminary writ be set aside, and that a peremptory mandamus be refused, at the cost of the relatrix.


author: McEnery, J.

text:
    No. 10,190.
    Bridget Curley, individually and as tutrix, vs. Illinois Central Railroad Company.
    A railroad company, running and operating its road through the streets of a populous oityv is bound to observe extraordinary precautions tor the safety of the public, particularly at street crossings.

      Where these precautions are omitted by the company, and a party is injured and there is no concurrent contributory negligence on his part, the company will be held liable.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhies, J.

      B. B. Borman for Plaintiff and Appellee :
    1. A railway company is to be held to the exercise o£ a very high degree of care in operating its road through the populous streets of a city, and will not be permitted to omit with impunity any reasonable duty that may tend to the safety of the public, which has-an equal right with the railroad company to the full use of the thoroughfares. C. P. Q.
    R. R. vs. Stumps, 69 Ills. 409.
    2. The Illinois Central railroad Company, acting as the successor of the New Orleans, Jackson and Great. Northern Railroad Compauy, is hound, while running trains over their track on St. Joseph street:

      {a) to keep the engine in front of the train while in motion ;
    (b) to place watchman with a red lantern or signal flag at each street crossing while the train is in motion, and to have similar lights attached to each side of the train when run during the night. Ordinance No. 1031, Administration Series, A. I). 1871, and OrdinanceNo. 2340.
    3. The surviving children or widow may recover the damages sustained by them by the death of the deceased father and husband, as well as the damages which he himself, could have recovered. C. O. 2315, as amended by Act No. 71 of 1884, p. 94.

      Girault Barrar for Defendant and Appellant:
    1. When one approaches a point upon the highway, where a railway track is crossed upon the same level, it is his plain duty to proceed with caution, and if he attempts to crosa the track, either on foot or in a vehicle of any description, he must use what the law-says is ordinary care under the circumstances. Beach on Contributory Negligence, p-191, and authorities; Rorer on Railroads, Yol. II, p. 1031, and authorities cited; 95TJ. S. 161, Improvement Company vs. Stead ; 33 Ann. 154, Childs vs, Railroad; 23 Ann. 264*
    2. The law prescribes the quantum of care with great exactness. In attempting to cross, the traveler must listen for signals, notice signs put up as warnings, and look atten- • tively up and down the track. Beach on Contributory Negligence, p. 192, and authorities cited; Railroad Company vs. Houston, 95 XT. S. 697; Railroad Company vs. Schofield, 114 XT. S. 615; Stubley vs. London and Northwestern Railway Company, Court of Exchequer Reports, Yol I, p. 12.
    3. He must even come to a halt for this purpose, unless it is plainly evident from his senses-of sight and hearing that there is no danger. Beacb on Contributory Negligence, pp* 192,193,195, and authorities; 10 Allen, 532; 29 N. Y. 315 ; 73 Perm. St. 504; Reynold» vs. Hudson River R. R., 58 N. Y. 248.
    4. Failure on the part of the railway company to do its duty will not excuse any one front using the senses of sight and hearing upon approaching a railway crossing. Beach on Contributory Negligence, p. 195, sec. 64; Hiuckley vs. Cape Cod R. R., 120 Mass. 257 ? Bellefontaine, etc., R. R. Co. vs. Hunter, 33 Ind. 335; 27 Barb. 534; McGrath vs. N* Y. Central and Hudson River R. R. Co., 59 N. Y. 468.
    5. The defendant was not guilty of statutory negligence in backing its train to make a-coupling, in not having red lights on the end of the train, aDd in the fact that the brake* man did not have a red lamp instead of a white lamp on the Fulton street crossing. Ordinance 8127, Jewell's Digest (ed. 1887), pp. 177,179.
    6. Ordinance 8127 defines the rights and duties of defendant and its immediate author of title, on St. Joseph street, and other streets named, in hcec verba. This ordinance con. tains the express grant to use necessary switches, sidings and turn-tables. There is no restriction forbidding the backing of trains, or requiring red lights at ordinary street crossings, in this ordinance, express or implied. See Port of Mobile vs. L. «fe N. R. R. Co. 4 South. Rep. p. 100.
    ‘7. This defendant is not bound by the restrictions contained iu the old Jackson Railroad Ordinanco 1031, Jewell’s Digest (ed. 1887), pp. 170, 177,

      (a) It never agreed-so to he bound, and has never operated St. Joseph street under that ordinance. '

      (b) The City Council never intended that, it should be so bound.
    Section 8 of Ordinance 8127 makes this defendant subject to all general rules and regulations, as to operation of trains on all streets, e. g.} ringing a bell at intervals from Claiborne street to river, and having llagmon at street car crossings.
    'Ordinance 3031 contains only special directions peculiar to St. Joseph street, and peculiar to the New Orleans, Jackson and Great Northern Railroad.
    (c) Ordinance 1031 was a mere license to the old Jackson Railroad to use steam as motive power on St. Joseph street, and hy its terms Í3 revocable at the pleasure of the City Council; while Ordinance 8127 is a binding contract, made for a consideration, and is irrevocable in terms, so far as the city is concerned. (Sec3. 10 and 4, Ordinance 8127.) By Ordinance 8127, the company might use steam or any other, appropriate motive power. {Sec. 1.)
    ;S. Defendant was not gniit-y of negligence at all, under the facts of this case. It was backing its train in a lawful manner, at slow pace, to make a coupling, as it had a lawful light to do ; the brakemanwith. his lamp was on the. crossing in advance of the train, and ho warned the plaintiff’s husband in ample time to stop; failing in that effort, ho signalled the train to stop, but it was too late.
    9. It is apparent from the evidence of plaintiff’s own witnesses that Curley’s failure to look about him, before crossing the track, was the proximate cause, if not the sole cause, of tbo collision. There was nothing to prevent his seeing the train, if he bad looked.
    10. It is a general and almost universal principio of law and common justice, that one cannot recover for an injury sustained, to the happening of which his own negligence has been the proximate cause, no matter whether the defendant bo in fault or not.. Justice Eield in Little vs. Ilackett. 116 TT. ; Judge Black, in Penn. R. R, Co. vs. Asp ell, 23 Penn. St. 147; Judge Cooley, in Xoipel .vs. Hilsendegen, 44 Mien. 461; Levy vs. Canal Co., 34 Ann. p. 180; AYeeks vs. R. R-, 32 Ann. 615; Schwartz vs. R. R., 30 Ann. 35.
    11. Absence of negligence on the part of plaintiff will never be presumed when an accident and injury occurs to him. He must show as a part of his case absence of contributory negligence. The burden is upon piaintiff. 3 Ann, 645; Mercier vs Carrollton R. R., 23 Ann. 264; 44 Mich. 461 ; 6-4 New York, 535; Beach on Contributory Negligence, pp. . 433,448. Some authorities deny this. .Beach, p. 448.
    •12. Even in those authorities which hold, that the foregoing (H) proposition is not good law, it is welL settled that if the contributory negligence of the plaintiff appears on his own showing, the court slionld direct a verdict. Beach on Contributory Negligence, p. 432, and authorities.
   The opinion of file Court was delivered by

McEnery, J.

Mrs. Bridget Curley sues tbe defendaut railroad company individually and as tutrix of her minor son, Thomas G. Curley, for damages for a train colliding with' a float driven by her husband, James Mi Curley, who was fatally injured by the collision.

The defendant peremptorily excepts to plaintiff’s action, because the petition discloses no cause of action whatever in favor of Mrs. Bridget Curley, individually.

Act No. 71, approved 10th July, 1884, is as follows :

“That Art. 2815 of the C. C. be amended and re-enacted so as to-read as follows: Every act whatever of man that causes damages to-another, obliges him by whose fault it happened to repair it. The right of this action shall survive in case of death in favor of the minor children or widow of the deceased, or either of them, and in default of these in favor of the surviving father and mother, or either of them, for the space of one year from the death. The survivors above mentioned may also recover the damages sustained by them by the death of the parent or child or husband or wife, as the case may be.”

This act gives to either the minor or the widow the right to sue for the alleged injury to the husband and father. The widow sues for her interest in her own right and for the interest of her minor child in her representative capacity. Both were on equal interest in the same cause of action, by inheritance, and there is a proper joinder of parties. The damages claimed resulted from one cause relating to one-liability on the part of defendant.

All parties in interest are before the court, and the judgment will be final and conclusive as to all.

This same question was presented in the ease of Mrs. Clairain, individually and as tutrix, vs. W. U. T. Co., 40 Ann. p. 178, and this Court held that the “ claim of the widow and children of the deceased for damages was properly presented in a single suit,” and “ that it was better to end the controversy in the one suit than to remit the plaintiffs to two different actions.” The exception was properly overruled.

The facts in this case are as follows: James M. Curley, Mike Curley, his brother, and John Welsh, were in a float, driven by James M. Curley, and when the float was going up Eulton street, and in the act of crossing St. Joseph street, it collided with a freight train of the defendant company. James M.-Curley was fatally injured and died at the Charity Hospital a short time after the accident. The collision between the float and the train occurred in the city of New Orleans, about T o’clock in the evening, on 22d September, 1887.

Counsel for plaintiffs and defendant agree upon the following facts : That the Ill. C. R. R. Co. is the lessee for 400 years of the C., St. L. & N. C. R. R., a corporation organized under the laws of Louisiana; and that the Ill. C. R. R. Co. “ stands in the shoes” of said company as to-its rights, franchises and powers within said State, and to operate a railroad along St. Joseph street in the city of New Orleans. That the rights and franchises of the defendant company were acquired from the purchase of the N. C., J. & G. N. R. R. Co , at the foreclosure sale made by the Circuit Court of the United States in New Orleans, on the 17th day of March, 1887; and by the consolidation of the purchase of •said N. O., J. & G. N. R. R. Co., with the purchase of the Miss. C. R. R. Co., and that said purchases were duly consolidated according to the laws of the State; that said consolidated company was duly char ■ tered under the terms of Act 89 of 1878, of the General Assembly of Louisiana.

It is also agreed that the N. O., J. & G. N. R. R. Co. accepted Ordinance 1031 (A. S ), adopted August 16th, 1871, by notarial act before Andrew Hero, notary, on August 30th, 1871; and that said ordinance, with the exception of the ringing of bells on St. Joseph street, measured the rights and the duties of said company as to the operation of trains on St. Joseph street, down to-the adoption of Ordinance No. 8127 (A. S.), Nov. 9th, 1882, and continued to do so, unless the latter ■ordinance repeals expressly or impliedly said Ordinance No. 1031.

The lease made by the C., St. L. & N. O. R. R. Co. to the Ill. C. R. R. Co. was executed and delivered on the 13th June, 1882, and the Illinois Central took charge of the railroad, including that part of the line on •St. Joseph street, on 1st January, 1883.

Ordinance 1031, Administration Series, 1871, permitted the N. O., J. &. G. N. R. R. Co. to run their trains over their track on St. Joseph street, to and from their depot and to the river by steam, with the following restrictions:

1st. That the engine used should be a smokeless dummy;

2d. That the engine should always be kept in front of the train while in motion;

3d. That a watchman, witli a red lantern or signal flag, should be placed at each street crossing while the train was in motion, and similar lights should be attached to each side of the train when moving at night; and it prohibited the blowing of whistles or the ringing of bells.

Ordinance 8127, which the defendant company claims measures its rights and duties on St. Joseph street, and which does not contain any restrictions peculiar to the operations of trains on St. Joseph or any other street, provides:

1st. The character of the fuel to be used by the engine;

2d. Prohibits the company from obstructing the drainage of the streets, and commanding railroad companies to protect and maintain the same to the satisfaction of the city surveyor;

3d. For the pavement of portions of the street through which the Toad runs;

4th. Regulates the rate of speed and gives the said company authority to use steam or any other appropriate motive power;

5th. The manner of constructing switches, so as not to obstruct the passage of vehicles;

6th. That the road should be subject to all general rules and regulations in existence and which thereafter might be enacted by the City ‘Council.

7. That it should maintain and have regular communication and 'means of traffic on said lines of railroad.

Ordinance No. 1031 was a special contract and agreement between the city of New Orleans and the N. O., J. & G. N. R. R. Co., accepted by ■said company in the form of a notarial act.. It was a contract that accompanied all the changes in ownership, name and management of said railroad. It bound to its requirements each successive corporation unless abrogated, changed or qualified by the parties to the agreement — the city of New Orleans and the successors and representatives of the road accepting the ordinance.

Ordinance 8127 does not repeal Ordinance No. 1031, either specially or by implication. It does not change, alter or modify the essential requirements contained in the latter ordinance, for the safety of the public. The obligations that the engine shall always be kept in front ■of the train while moving through the city, and that a watchman with ■a red lantern or signal flag shall be placed at each street crossing while the train is in motion; that red lights shall be attached to each side of the train -when run during the night, are still in force and rest upon the Illinois Central Railroad Company.

Ordinance No. 8127 is general in its character, and applies to all railroads operating trains within the city of New Orleans. Ordinance No. T031 is a contract entered into with the N. O., J. & G. N. R. R. Co. with ■special reference to the running of trains on St. Joseph street. The contract is irrevocable, until changed in some legal manner — binding «on all parties to it. We are unable to see wherein it has been changed so as to leave the defendant company free to operate its trains exclusively under the provisions of Ordinance 8127. The defendant company claims that its responsibilities are measured by this enactment— and in its construction of this statutory law it totally neglected to comply with the requirements of Ordinance 1031.

The engine was not in front of the train. It had no red lights on its train, or watchman with a red light at the crossing on St. Joseph street. There were only white lights when any were visible. No witness says he saw a red light. The witness Cary, who says he was at' the crossing and flaggod the float, states he liad a white light. The electric light was burning at the crossing, and under this light a white-one could, if seen, he scarcely recognized from the flashes of the electric light.

The train consisted of ten cars, one engine and tender. It had a-crew of three men — one brakeman, a fireman and engineer. The train was insufficiently manned. The evidence further discloses the fact-that there were usually with the crew two flag hoys, but at the time this accident occurred it does not appear that there was even one boy at the crossing, for the defendant attempts to show that Cary, the brakeman, was at the crossing and flagged the float. It was no compliance with the ordinance to place a boy at the crossing. It says a-watchman shall be stationed at each crossing. It contemplates that a man of matnre years and judgment should he charged with the responsible duty of warning the public of danger at the crossings.

We do not intend to intimate that the defendant company’s responsibility is fixed and measured exclusively by statute. It is now a well recognized doctrine that railroad companies are required to exercise-extraordinary precautions for the protection of the public in the management of their trains running through the streets of a populous city-It is negligence to omit any reasonable duty necessary for the safety of the public, particularly at crossings where there are frequent passage and traffic. Independent, therefore, of the ordinance referred to, the defendant was bound to use the same degree of precaution as is found in the provisions of that ordinance. They are reasonable, and the only excuse, as railroad companies, it is presumed, do. not inflict wanton injuries for not strictly observing them, is a false system of economy.

Was there a want of reasonable care upon the part of James M. Curley which concurred with the negligence of defendant to cause the-accident?

He was a sober, industrious, prudent and careful man. He had often crossed St. Joseph street with his float, although witnesses for defendant say sometimes they had to stop the train for him.

There were two men on the float with him. Their testimony is that-they nevfer saw the train until it was on them. The engineer states-that he stopped the train in a few seeonds. He stopped it when flagged to do so. The train pushed the float along the track for some distance —not exactly stated by witnesses. The train must have been within a very short distance of the float, within a few feet, when the engineer-received the signal to stop. It is not reasonable to suppose that any sane man would drive on a track with a train so near that to attempt to cross would inevitably result in an accident.

James Curley was going up Fulton street. He could have seen the train as it passed under the electric light and went forward on the main track. It may then have reached its destination and commenced to back about the time he reached the crossing. He had, we think, reason to believe that the track was clear; that the train had passed on, and that he could pass with safety; and he had no knowledge of its again returning on the main track. There were no lights to give warning of the approach of a train. There was no watchman or flagman at the crossing. He was bound to use his sight and hearing, and ordinary prudence. The men on the float with him were placed in the same position. Neither of them saw a train, flagman, lights, or any evidence that a train was near. Curley may have looked, but there were no lights to warn him of the proximity of the train. He may have listened, and yet not heard the train. The train was being made up. At one instant it may have been going from him, at another it may have been approaching him. The train was going slow, so was the float. It was moving noiselessly, because it approached the men on the float and was on them before they were aware of the danger.

There is no evidence that the bell was ringing continuously. John Freret, the fireman, defendant’s witness, says: “ I generally gave the bel! a tap on crossing the street.” In answer to the question whether he always rang the bell in obedience to the company’s regulations,, he says: I do; but sometimes I have to go in front, I mean out on front, of the engine.”

James Curley approached the crossing where he had been in the course of his business in the habit of crossing. There was an invitatation and inducement for him to cross, because there were no means employed by the defendant company to warn him of the vicinity of a train, and there were no indications at the time he attempted to cross that any train was approaching.

We therefore conclude that the defendant company was solely responsible for the accident, and that there was no contributory negligence on the part of the deceased, James M. Curley.

We are of the opinion that the damages allowed by the jury are excessive. It is therefore ordered and decreed that the verdict and judgment appealed from be amended by reducing the principal thereof to seven thousand dollars; and that as amended it be affirmed, and plaintiffs to pay costs of appeal.


author: Bermudez, C. J.

text:
    No. 10,250.
    The State ex rel. J. K. Levy & Son vs. T. C. W. Ellis, Judge of Civil District Court for the Parish of Orleans, Division A.
    A prohibition cannot issue to a District Judge to prevent him from doing an act which he denies to have done, which he refuses to do and which is not shown to have been done by him.
    A judgment or decree appointing a provisional syndic, in an insolvency proceeding, cannot be suspensively appealed from. It must be executed, although an appeal was granted from it and was perfected.
    A mandamus does not lie against a District Judge to direct him to annul such appointment and to cancel the letters issued to the provisional syndic, when for reasons assigned, the judge has declined to do so.
    The exercise of a legal discretion cannot be controlled by mandamus.
    Application for Mandamus.

      H. O. Oage for tlie Relators.

      Bayne, Denegre é Bayne for the Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a Prohibition and for a Mandamus.

The relators complain that the district judge has proceeded to execute a judgment after a suspensive appeal had been taken therefrom, and that he has refused to cancel what has been thus done.

The district judge returns denying emphatically having acted in the manner complained of, after the appeal had been allowed, and avers that what was done took place after the judgment had been signed, bat before the appeal had been asked.

He further returns that the reason for which, lie declined avoiding what had been thus done by him, is that, after the appeal had been granted and perfected, he ceased to have any further jurisdiction over the case, and could legally render no valid order in the premises.

It appears that the relators applied for a respite which, after due ^proceedings, was granted them; that certain creditors obtained orders requiring the applicants to furnish bond and security as concerned them, which have not been appealed fiom; that subsequently the applicants, having failed to comply with such orders, under proper proceedings, the judgment according the respite was annulled and a judgment of cession of property was rendered against the applicants, appointing a provisional syndic; that, after said judgment had been signed, letters were issued to the syndic, and that subsequently, a suspensive appeal was asked, granted and perfected from said judgment.

It also appears that-the provisional syndic thus appointed, treating his appointment as operative, entered an appearance in the United States Circuit Court, sitting in this city, in his official capacity, in a matter in which the creditors of the applicants had an interest, and that the petitioners then took a rule in the court below to rescind the letters issued to the syndic, and that the district judge declined to act, as having no further jurisdiction over the subject-matter, in consequence of the suspensive appeal.

The prohibition asked is to prevent the judge from exjcutiug the judgment appealed from, and the mandamus prayed for lias for its object to compel the judge to annul the letters issued to the syndic.

As it is clear that the district judge has not only not done any act ■after the appeal had been perfected, but has¿refused to ^do any, the Court is at a loss to perceive how the writs asked can be allowed. It would have been immaterial if the letters had issued after the appeal, ns the judgment was provisionally executory.

It is also apparent that, if the execution of the judgment decreeing a ■cession could have been suspended by appeal, such is not the case however as to the appointment of the provisional syndic, which was made under Art. R. C. C. 3093, and Act 134 of 1888.

The Code of Practice distinctly provides that some judgments are executed provisionally, although an appeal has been taken from the same, within the delay prescribed and the necessity surety given. Such judgments relate:

1st. To the appointment of tutors, etc. ;

¿d. To the appointment of syndics, -where the Courtj orders that that they shall administer provisionally. C. P. 580. The jurisprudence is in accord.

The relators seem to act under the theory that the judgment appointing the provisional syndic could be suspensively'appealed from, but this is a manifest error.

It is therefore ordered that the restraining order herein made in limine be rescinded, and that the applications for writs of prohibition and mandamus herein be refused, at cost of relators.


author: Pocilio, J.

text:
    No. 9984.
    F. M. Fisk et al. vs. Germania National Bank et als.
    This case hinges mainly on questions of fact.
    It was sought to hold the defendant bank liable for the contents of a bank-box for wrongfully delivering the box, and to recover from Ringrose and Washburn the contents of said box, amounting to §100,000, which they are charged with having appropriated.

      Held: the bank, having delivered the box to the bearer of the ticket or card which called for the delivery of the box to “Bearer,” had legally complied with the contract, and was-therefore exonerated from all responsibility in the premises.

      Held: as to Ringrose and ‘Washburn, the evidence having entirely failed to show that the box in suit contained any money or values, as alleged by plaintiffs, or to connect either of these two defendants with any spoliation of that or any other box belonging to the succession of Risk, no recovery could be had as against them.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Gits. A. Breaux, Posey & Her and W.[B. Richardson for Plaintiffs and Appellants.

      Braughn, Buck, Bmlcelspiel & Hart, H. H. Upton and A. J. Murphy for Defendants and Appellees.
   The opinion of the Court was delivered by

Pocilio, J.

Plaintiffs in this case are the widow and the son of F* M. Risk, who died in this city in December, 1874.

They instituted this suit in December, 1884, for the recovery of the contents of a bank-box, which, they alleged, had been deposited by the deceased in the Germania Bank, whence it was taken out by two of the defendants, Anne Conery and W. B. Ringrose, and rifled of its contents, which were appropriated by Ringrose and the other eo-defendant, W. W. Washburn.

They alleged that the contents of said box consisted of money and of securities worth in the aggregate one hundred thousand dollars, for which they asked judgment against the four defendants in solido.

They appeal from a judgment which rejected their demand.

The defendants interposed numerous pleas in defense, which may be summarized into a general denial arid the plea of prescription of one and ten years.

Plaintiffs’ theory of their case is substantially as follows: The deceased, Fisk, who was a thrifty and wealthy man, was divorced from his wife, who obtained in the same proceedings a judgment against him for her share of the community property, which amounted in 1871 to more than $150,000, consisting mainly of immovable property.

To avert the seizure of any of that property by his wife, Fisk proceeded to remove it beyond her reach through various devices, one of which was to convert most of it into cash and negotiable securities. He kept but a small bank account, and enclosed the bulk of his money and valuables in a bank-box, which was deposited in the defendant bank, and which was marked in the name of Anne Conery, one of the defendants herein, with whom lie lived in open concubinage, occupying the same house, for nearly twenty years. As the greater part of his moneyed transactions were carried on in the name of ‘‘Anne Conery,” he held her general and special power of attorney, under which he dealt with all matters, property, money and values which stood in her name, and by virtue of which, together with the deposit ticket or card, he called for and took out of the bank as often as he desired the box therein deposited in her name, and as her property.

It is then contended that, at the time of his death, the box contained •some $70,000 in currency, $35,000 in bonds and other negotiable securities, besides jewelry and other small effects of value; and that with the ticket of deposit which Anne Conery abstracted from the person of Fisk, as he lay unconscious at the approach of death, on the day before his demise, the box was taken out of the bank by Ringrose, who stole the money which it contained; the bonds being appropriated by Wash-burn, one of the conspirators, who had been appointed executor of Fisk’s estate through, an olographic will which had been taken out of the bank-box by Ringrose, and by the latter handed to Anne Conery the universal legatee under the will, which she delivered to Washburn.

Washburn’s administration of the estate was soon brought to an end through a subsequent will of the deceased, under the offset of which •one of Ms daughters became executrix, and thereafter administered the succession through Washburn as her instituted agent.

The succession, thus administered, amounted to something over $46,000, of which the widow and heirs were in due course placed in possession. Thus fire controversy is restricted to the alleged contents ■of the bank-box.

It is argued that the difference between the inventoried value of the ■community in 1871, and the amount of property left by Fisk at his death, was represented by the money and bonds which the bank-box contained at the time of his death; and which were appropriated by Ringrose and Washburn a few days after his death.

As could be naturally expected in a trial which took place some twelve years after the occurrence of the alleged events and incidents •which form the basis of the suit, the evidence, which fills up an immense record, is decidedly conflicting, having imposed on, the Court tedious and painful labor to reach a satisfactory’ analysis thereof.

And we leave the record with the clear conviction that the case is entirely with the defendants.

As it turned out during the trial that the testimony of Anne Conery was the main prop of plaintiffs’ case, it follows naturally that they do not press their claim, and that they are not clamorous for a judgment, against her.

Their attack will therefore be considered as being levelled exclusively against the three other defendants.

I.

Their right of recovery against the bank is predicated on its alleged' violation of a contract of deposit. But, according to plaintiffs’ own evidence, it appears conclusively that there was no contract of deposit between the bank and Fisk, in his own right. Avowedly, the box which is the subject-matter of this litigation bore the name and was deposited as the property of “Anne Conery, 157 Camp street, N. O.,”' and the card which evidenced the contract entitled the bearer thereof to call for, and to obtain possession of, the box deposited in the bank in the name of “Anne Conery.” And the record shows that Fisk always obtained the box on presentation, and as the bearer, of the card in question, which was always kept by the bank until the box was-returned.

■ Now, it is conceded that the last and final delivery of the box was obtained by the bearer, and on presentation, of that identical card.

Wherein, then, did the bank violate its contract touching that boxf

The avowed object of the device or scheme was to hold out Anne Conery as the true owner of the box and contents, so as to screen either from the reach and action of the divorced wife. And if it had happened that in any proceeding by the wife the bank had delivered the box as the property of Fisk, how clamorous would Anne Conery, instigated by him, have been in holding the bank responsible for a violation of its contract by an illegal and wrongful delivery of the box. ■

Article 2949 of the Civil Code, which plaintiffs invoke as fixing the liability of the bank, reads as follows:

“The depositary must restore the thing deposited only to him -who delivered it, or in whose name the deposit was made, or who was-pointed out to receive it.”

This is precisely what was done by the bank in the premises. The box, had been deposited in the name of “Anne Conery,” and the party pointed out to receive it was the bearer of the card issued in her name-As often as Fisk obtained possession of the box, and the record shows that it occurred almost every day for four years, it was in that capacity that he obtained it; the same means which Ringrose used in December, 1874. The fact that between Fisk and Anne Conery the box was truly and exclusively the property of Fisk, and that in point of fact he always held and constantly carried on his person the card which evidenced the contract of deposit, was of no concern to the bank, and cannot alter, vary, modify or increase the responsibility the bank touching the box, which it was bound to deliver to the bearer on presentation of the card. The bank, therefore, stands entirely exonerated from any liability in the premises. That conclusion is practically conceded by one of the plaintiffs, who says in one part of his testimony: “As far as the bank is concerned, I did not think there was any conspiracy. I don’t see why there should be.”

II.

The theory as to the liability of the defendant Washburn is predicated on three circumstances:

1st. That the box marked “Anne Conery,” and numbered as “33,” alleged to contain $100,000 in money and values, was found in his possession some ten years later, when it was returned and delivered by him to one of the plaintiffs herein.

2d. That a short time after the death of Fisk, he converted city gold bonds, of the kind alleged to be in the box, amounting to some $35,-000, into premium bonds.

3d. That as executor, and as the agent of the executrix, he entirely failed to make any effort, or to institute any search for the recovery of the box, the previous existence and the missing of which had been made known to him at the time.

Before entering into a discussion of these three grounds of suspicion, and which at most amount to nothing else, it is but fair and proper to premise here the declaration of the entire failure of plaintiffs to have shown that Fisk had possession, at the time of his death, of money or securities, contained in the box in question, or anywhere else, in an amount equal to or approximating the sum which plaintiffs claim in this suit.

. It would serve no useful purpose, either in justice or in jurisprudence, to analyze, in this opinion, the testimony which bears on this noiut. It is sufficient to announce our conclusions on the subject, and it is better to omit the publication of our views as to the insufficiency of any part of the testimony, or touching the veracity vel non of aDy of the witnesses in the case.

But conceding, arguendo, that there was such a box containing the great values which plaintiffs describe, we find no reason in the record to justify the assertion that Washburn had any knowledge thereof, or any connection therewith.

1st. The evidence shows tliat'the trunk and tiff boxes which Wash-burn turned over to P. M. Pisk, Jr., in 1884, had been brought to liis place of business some ten years before, when he represented the executrix, and that neither of them contained the values in question. And on the point that “Box 83,” described by some of the witnesses as containing Fisk’s treasures, was handled by Washburn, the evidence is not satisfactory that the identical box had ever been in Washburn’s possession. Can it be supposed for one moment that he would at any time be so stupid as to turn over to one of the heirs the identical box which he had participated in despoiling ten years before, and for which diligent search had been instituted, including the arrest of Anne Connery — and in the absence of any demand for the same1?

Much more natural and much easier and safer would it have been to have destroyed it, or to have made it' otherwise disappear forever.

2d. The record shows Washburn to be, and to have been at the time, a man of means, and to have then speculated in city securities, which he first converted into gold bonds and subsequently into premium bonds. There is nothing in' the coincidence that he converted his bonds at about the time that the succession of Pisk was in course of settlement. ‘

3d. As executor, or as the agent of the executrix, he was under no obligation to do more than to administer the property which was inventoried in the succession. And it was no part of his duty to institute detective researches for any missing money or paper, unless some tangible clue had been furnished him by the heirs or other interested parties. This is hardly as much as a reasonable ground of suspicion.

III.

In so far as Ringrose is connected with the alleged appropriation of money, we refer to what was said .above as to the. absence of legal or satisfactory proof of the existence of the money at all, as the property of Pisk, and this is the essential prerequisite to any recovery against him.

It appears from the record that his only connection with the succession, or with any property belonging thereto, or connected therewith, was as the messenger or friend of Anne Conery, at whose request he called for and withdrew a certain bank-box which, had been deposited at the bank in her name; but the evidence entirely fails to show that ■filie particular box in question contained any money or valuables belonging to Fisk or anybody else. The box was claimed as her property by Anne Conery, who subsequently pledged its contents, some .•silver-ware and other like effects, to secure a loan of money. At her request he placed the box in the custody of Father Allen, a near neighbor, from whom he brought it back to Anne Conery a few days later. But, we repeat, the record is barren of evidence showing that the box •contained money or securities such as plaintiffs’ claim covers. We have carefully weighed all the testimony on this point, and we find no grounds to justify even a suspicion that the defendant Ringrose committed the crime of larceny, which is practically'the substance of the charge herein made against him.

We therefore conclude, with the district judge, that' the defense is •clearly made out.

Under these views we see no necessity to discuss the plea of prescription.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,201.
    Richard J. Lowden vs. Richard L. Robertson, Jr.
    Jn sequestration of movable property based on a vendor’s privilege, an affidavit to tbe debt, to tbe privilege, and to tbe fear that “tbe defendant will conceal, part with or dispose of tbe movable in bis possession daring tbe pendency of tbe suit,” fills all tbe requirements of tbe law; and tbe party is not bound to swear to, or to prove, any other grounds of fear than tbe simple facts that be has a privilege and that it lies in the power of tbe defendant to defeat or destroy it by doing some of tbe acts which be swears he fears be may do.
    *Xhe case is still stronger where the purchaser of tbe movable has failed to pay tbe price when due; which default would be a sufficient reason for tbe.foar, even if tbe law required tbe creditor to swear and to prove that be has good cause to fear, which it does not.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Hornor & Lee for Plaintiff and Appellant.

      Sam'l L. Gilmore for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

The appeal is from an interlocutory judgment dissolving a sequestration.

The sequestration issued upon an affidavit of plaintiff that the debt claimed is due and owing; that he has a vendor’s privilege upon the movable sequestered; and that he “fears that the defendant will conceal, part with or dispose of the same during the pendency of the suit.”*

The grounds assigned in the rule to dissolve are:

1st. That the statements contained in plaintiff’s affidavit are entirely unfounded and untrue.

2d. That the bond herein furnished is insufficient.

The ground first above stated is the one on which the judge a que» acted, and the only one urged before us. Recurring to the affidavit, the statements contained in which are charged to be untrue, we find no statements therein except those above recited.

It is not pretended that, under his rule to dissolve, the defendant has established the non-existence of either the debt or the privilege, or that the debt is not overdue.

The only remaining allegation is the one that plaintiff fears that-defendant will conceal, part with or dispose of the property during thependency of the suit. It would certainly be difficult to establish that, such an allegation is untrue. Fear is a subjective mental condition, the existence or non-existence of which can hardly be the subject of extrinsic proof. If a man says and swears that he fears, it is, to say the least, difficult to contradict him.

But the contention is that it is not sufficient that a party has a privilege and that he fears it may be lost by some disposition of the property during the pendency of the suit, but that he is bound to establish in addition that his fear is based on such acts or declarations of defendant as would justify the fear.

If this were correct, we should not hesitate to hold that where a man has sold movable property for a price payable in notes at a fixed day, and when the purchaser fails to pay them when due, the mere fact of non-payment, coupled with the additional fact that it lies in the power of the purchaser to defeat the vendor’s privilege by the alienation or removal of the thing sold, constitutes ample cause for a just and reasonable fear that his privilege may be thus defeated.

In the case of provisional seizure, the lessor is required to make affidavit “that he has good reasons to ielieve that the lessee will remove the furniture,” etc. (C. P. 287); yet this Court has repeatedly held that the failure of the tenant to pay the rent when due constitutes a sufficient basis for the affidavit. Heirs of Lalaurie vs. Woods, 8 Ann. 366; Wallace vs. Smith, Id. 376; Shiff vs. Ezekiel, 23 Ann. 383; Fox vs. McKee, 31 Ann. 71; Dillon vs. Porier, 34 Ann. 1100.

'Die same principle applies with equal force to a vendor’s privilege-where the purchaser fails to pay the price when due.

Til tlie case of sequestration, moreover, the plaintiff is not required to swear that he lias qoocl reasons to fear, but simply that he fears. C. P. 275, No. 8.

In some earlier cases there were dieta to the effect that a party must not only establish his privilege and his fear that it may be lost, hut also good grounds for the fear.

But in Wells vs. St. Dizier, 9 Ann. 119, the Court held a simple-affidavit in the terms of No. 8 of Art. 275, C. P., to be sufficient; and in a later case the Court followed the same rule, makiug the following significant reference: “We are aware that there are other decisions which are inconsistent with the decision in Wells vs. St. Dizier, hut prefer to abide by the doctrine of the last named case as being, in our opinion, more in conformity to the letter of the Code of Practice.”' Mabry vs. Tally, 15 Ann. 563.

Still later, it was held that an affidavit to the privilege, coupled with a statement of the fear in accordance with No. 8 of 275, C. P., was sufficient basis for sequestration. Blanc vs. Wallace, 26 Ann. 492.

And in the latest case, it was treated as coneeded that had the affidavit set forth the fear of a removal of the cotton (in addition to the privilege) it would have followed the exigencies of the law.” Gumbel vs. Beer, 36 Ann. 487.

We treat it, therefore, as fully settled, in accordance with the uniform practice, that in sequestration based on a privilege (at least when-the debt secured is due), an affidavit to the debt, to the privilege, and to the fear stated in No. 8 of Art. 275, C. P., is sufficient. The party is not bound to swear to or to prove any other grounds of fear than the simple facts that he has a privilege and that it lies in the power of the defendant to defeat or destroy it by doing some of the acts which lie-swears he fears he may do. Where the debt is not due, possibly different considerations might arise. '

It is, therefore, ordered, adjudged and decreed that the judgment-appealed from be annulled and reveised; and it is now ordered and decreed that the motion to dissolve the sequestration be denied and overruled, at defendant’s cost in both courts.


author: Todd, J. Watkins, J. Pociié, J.

text:
    No. 10,070.
    Succession of Henry Cassidy.
    Where, on the opposition to an executor’s account, the same has been amended by placing-the opponent thereon, as a creditor of the succession then under administration, the executor in his representative'eapacity has an appealable interest in the judgment on the-opposition, and if bo deems it unjust has not only the right to appeal but it is his duty to do so.
    If the succession funds shown by the account for distribution exceed 82,000, this Court has jurisdiction, whatever be the amount claimed by the opponent.
    A suit by an evicted purchaser against his vendor, or against the latter’s vendor, for indemnity on account of flic breach of the covenant of warranty, is not a real action. If the suit is brought against the succession of the vendor, the testamentary executor aloue is competent to defend the action ; hence it is not necessary that absent heirs be made parties.
    At common law and under the laws of the State of Texas, an evicted purchaser may sue a remote vendor for recovery of his purchase price, without first exercising his recourse against his immediate vendor. Under that system “a covenant of warranty runs with the land.”
    Jin Texas a purchaser may sue his vendor for a breach of the covenant of warranty without showing eviction under legal process, but in that case the purchaser must under proper averments establish the validity of the title which he recognizes as paramount to that transferred to him by his vendor, and must show an actual dispossession by virtue thereof. The rights and obligations of the parties to a sale executed in one State, of real estate situated in another, must be determined under the laws of the State in which the property is situated.
    APPEAL from the Civil District Court for the Parish of. Orleans. Houston, J.

      <T. O. Nixon, Jr , for the executor, Appellant:

      ■1. Ho action can be brought; by’a second vendor against a vendor upon a warranty, except the intermediate vendor be a party ; this results from the general rule providing that all persons through whom relief is sought be made parties. See Soixas vs King, 39 Ann. ; Hyde vs. CraAdick, 10 E. 387
    ■2. The second vendee has no action of warranty against the first vendor, except there be an express subrogation. Van Horght vs. Foreman, 1H. S. 352; Davison vs. Charbre’s Heirs, G H. S. 321; Smith vs. Wilson, 11 E. 522 ; Chambliss vs. Miller, 15 Ann. 713.
    .3. The preponderance of evidence is that the opponents have never been evicted from the property in question; as up to the time the testimony was taken in this cause, by the admission of one of the opponents they were still rendering the land for taxation.

      Farrar, Jonas <& Kruttsclmitt on die same side.

      MerHcIc c6 MerrioJc for Opponents and Appellees:
    ‘The rights and obligations arising under an act passed in one State to be executed in another respecting the transfer of real estate in the latter, are regulated in point of form, substance uná validity by the laws of the State in which such acts are to have effect. 39 Ann. 952, Succession of Larendon.
    A party purchasing laud in Texas is entitled to recover against a remote warrantor where his title has failed. Where the Supreme Court of Texas has decided that the land sold was not within a certain tract, and therefore that title thereto was in the State ; and whore the State surveyed the land for school and homestead purposes and sold the same to third persons, this constitutes an eviction.
    Actual eviction is not necessary where superior title is shown to be in the State and the land is abandoned under the title in question. 36 Ann. 792, Filliiol vs. Cobb; 9 Wall900.
    Warranty runs with the lands under the laws of Texas. 20 Texas, 623, Peck vs. Hinsley ; 51 Texas,'178, Westhope vs. Chambers.’
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

This is an appeal taken by an executor of a succession from a judgment rendered maintaining an opposition to his account.

There is a motion to dismiss the appeal—

1st. On the ground that the appellant (the executor) has no appeal-able interest;

2d. That the court has no jurisdiction ratione materia.

I.

The opposition to the account is in the nature of a suit against the-succession; that is, it is a demand on the part of the opponents to compel the executor to place them on the account as creditors of the succession for a designated sum. Their demand was recognized by the court as a just one, and the account amended by placing the claim on the account and ordering its payment.

Under this state of facts the executor, as the representative of the succession under administration, had certainly, in his representative capacity, an interest to appeal in behalf of the succession; and if was-his duty to do so if he believed the judgment was wrong. An executor has an interest to appeal whenever it is sought to wrest from him property belonging to the succession, or to impose a debt upon it which will diminish its assets in the fund to be distributed among the heirs or creditors; and his right to appeal exists independently of the heirs or creditors. Succession of McKenna, 23 Ann. 370; Succession of Chambury, 34 Ann. 25; Coyle vs. Succession of Creevy, Ib. 541.

The cases referred to in support of the motion only apply to the case of a contest of creditors over a fund in the hands of an executor or administrator for distribution, and the determination of which cannot add to or diminish the assets of the succession; as where the litigation only concerns the rights of opposing creditors to a certain fund or the right to be paid by preference out of it. In such case it is a matter of indifference to the executor which creditor succeeds, and he has no interest whatever in the judgment determining tjbe question.

II.

The amount shown by the account to be in the hands of the executor for distribution exceeds $2000, and this gives the Court jurisdiction.

Motion to dismiss is therefore refused.

On this Merits.

Watkins, J.

The present controversy arises in the testate, and apparently solvent, succession of Henry Cassidy, a citizen and resident of tills State, and which was opened in October, 1884. It is raised by way of an opposition to a final account. The opponents are Arthur E. Spohn and Catherine Hamilton, administratrix of the estate of Alexander Hamilton, citizens of the State of Texas.

The following are the grounds of their opposition, substantially, viz:

That on the 9th of December, 1875, the deceased, in consideration of the price of two thousand dollars, sold to Horace Wright Cassidy a tract of land situated in Neuces county, Texas, with full warranty of title to said purchaser, his heirs and assigns; and on the 11th day of ■July, 1878, said vendee, for and in consideration of the price of $1822.50, sold said tract of laud to Arthur E. Spohn and Dr. Alexander Hamilton, opponents herein, with like warranty of title.

That by a decision of-the Supreme Court of the State of Texas, rende: ed in March, 1884, opponents’ title to said land was declared null; ■and State patents have been issued to other parties, and they have been compelled to abandon it.

They aver that they were in effect subrogated, by their vendor, Horace Wright Cassidy, to the warranty of Henry Cassidy, ‘‘whose covenant of warranty runs witii the land, under the law of the State of 'Texas, and should protect petitioners;” and that the succession of Henry Cassidy' is liable to them under the law of the State of Texas, against which opponents are entitled to recover on said obligation of warranty.

That, notwithstanding their right to have their claim placed upon the final account of, and paid out of the assets of said succession, the executor has neglected and omitted same, and proposes to surrender the assets thereof to the heirs.

Wherefore they pray for an appropriate amendment of the account and judgment conformably thereto.

Horace Wright Cassidy was not made a party to the opposition; nor was the attorney' for absent heirs, appointed to represent thein, cited.

The defenses set up to this claim are as follows:

1st. That this claim and suit cannot be prosecuted against the succession of Cassidy without making Horace Wright Cassidy a party thereto.

2d. That there is no cause of action at all by these opponents against the succession of Henry Cassidy, because there is no privity of contract between the succession of Cassidy and these opponents, Spohn and Hamilton; and because Spohn and Hamilton were never subrogated by Horace Wright Cassidy to liis action, whatever it might be, against the succession of Henry Cassidy.

3d. That no such dispossession of the land in queslion, and no such «conclusive conflicting title to the land in controversy, is shown as would create a legal eviction.

I.

The first question to be determined is whether this is a personal or weal action.

Strictty speaking it is neither; because an opposition to an executor’s account is an answer, and has for its object to test its conectness. The executor has not admitted or approved of opponents’ claim. It would have been more regular and formal for opponents to have brought a direct action against the executor for the recognition and establishment of his. demand. But no objection lias been raised on that account. Yet, if we should And their opposition to be of the nature of a real action which “must be brought against the testament•ary executor and the heirs” (O. P. 123), there would be a stronger reason why the heirs should be cited to answer it.

For if this is not a personal action, the executor has no authority to represent the heirs, and a judgment against him alone would not bind them. Hart vs. Bone. 5 La. 97; Bird, executor, vs. Dufour, executor, 34 Ann. 322; Cronan vs. McDonough’s Executor, 9 Ann. 302.

The Code of Practice provides that “the obligation which one contracts to defend another in some action which maybe instituted against 3iim, is termed warranty.” Art. 378.

It further declares that “warranty may be of two kinds, real or personal. Real warranty is that which arises in recol or hypothecary actions; as when a purchaser is sued in eviction of an immovable property which has been sold him.” Art. 379.

This opposition — treated as an action — is undoubtedly a reed action; and, hence, the heirs of Henry Cassidy, whether present or represented, should have been cited.

The fact of the attorney for absent heirs having joined the executor’s eounsel.in making objections to the introduction of testimony, and in insisting on his plea of no cause of action, cannot amount to such a ■waiver as would confer the power on the executor to stand in judgment alone.

II.

Notwithstanding the views we have expressed will necessitate the -remanding the case, we feel it our duty to examine and pass upon the plea of no cause of action — the contention of the executor’s counsel being that there is no privity of contract between the succession of Henry Cassidy and the opponents, they never having been subrogated by Horace Wrigbt Cassidy to his right of action in warranty against Henry Cassidy.

His argument is, that unless there had been an express subrogation by Horace Wright Cassidy to Spohn and Hamilton of his action of warranty against Henry Cassidy, no action against the latter is maintainable in favor of opponents against Henry Cassidy’s succession and heirs.

The Code of Practice provides that “when one is sued in eviction of an immovable property' sold to him * * s' he shall be entitled to-a delay', in order to have his warrantor made a party to the suit,” etc. Arts. 380, 387.

It further provides that “if the defendant is cast in the action, the judge, when he gives judgment against defendant, must render, at the-same time, a judgment in favor of the defendant against his warrantor for whatever indemnity my be due to such defendant.” Art. 385.

Hence, it would seem to be necessary, in order to avoid a circuity of" action, that the vendee should be subrogated to his vendor’s right of action in warranty against 1ns vendor.

This principle has been recognized and applied in the following-cases, viz: Van Norghton vs. Foreman, 1 N. S. 352; Davidson vs. Charber’s Heirs, 6 N. S. 323; Smit vs. Wilson, 11 R. 522; Chambliss vs. Miller, 15 Ann. 713; Filhiol vs. Cobb, 36 Ann. 793.

In each of those cases it was substantially decided that the vendeewho has not taken an express subrogation of his vendor’s right of action in warranty, on the person from whom he bought, cannot, in case of eviction, maintain an action against the first seller.

The application of this principle in the instant case does not interfere with the control over contracts given to the lex rei slice, which was-so clearly expounded in the Succession of Larendon, 39 Ann. 952.

The question here is one relating to the form and effect of an aetionT and not one relating to the law governing the contract. C. P. 33.

Such a question a court of this State has the unmistakable right to-decide.

We are of the opinion that opponents have no right of action against the succession of Henry Cassidy, primarily. That the opponents! should have litigated the question of liability witn their own warrantor, Henry Wright Cassidy, and contradictorily with him established their demands, under their contract with him.

But inasmuch as the parties concerned are all heirs of the succession of Henry Cassidy, we can see no objection to its final settlement therein, after due citation, and on competent and sufficient evidence-

It is therefore ordered, adjudged and decreed that the judgment appealed from he annulled, avoided and reversed; and it is further ordered, adjudged and decreed that the cause he remanded to the •court a qua, with leave to opponents to make proper parties, and that same may he, thereafter, proceeded with according to law and the views herein expressed; the cost of appeal to he taxed against the opponents and appellees, and the cost of the lower court to await final judgment thereon.

On Rehearing.

Pociié, J.

Our reasons for re-opening this case originated from doubts which we entertained of the correctness of our conclusions in determining the nature of the action presented in the pleadings of the opposition of Spohn and Hamilton, appellees herein.

A second examination of the question constrains us to reconsider the •conclusions announced in onr previous opinion.

By way of opposition to the final account of the succession of Henry Cassidy, Spohn and Hamilton, the latter therein represented by his widow and surviving partner in community, instituted an action for the recovery of the purchase money of a tract of land which they had bought from Horace Wright Cassidy in 1878, it being the same land which their said vendor had acquired from Henry Cassidy, (since •deceased) in 1875; from which property they claim to have been evicted under the effect of a decision of the Supreme Court of the State of Texas, in which said lands are situated, rendered in March, 1884.

Their right of recovery -was resisted on the grounds substantially:

1st. That Horace Wright Cassidy should have been made a party to their action;

2d. That opponents had no cause of action against Ilenrv Cassidy, who was not their immediate vendor, and was not their warrantor;

3d. That opponents had not he.cn legally evicted from the lauds.

Treating the opposition as a real action, we had remanded the cause for the purpose of allowing opponents to make proper parties as contemplated'by the provisions of the the last paragraph of Article 123 of the Code of Practice.

And therein lies the error of our previous decree.

Opponents’ right of action being grounded on an alleged previous eviction, their demand cannot he treated as a call in warranty within the purview of Articles 378 and 379 of tlio Code of.Practice-.

It is in the nature of a demand for compensatory damages arising out of an eviction from property which they had purchased from the vendee of the deceased) hence it cannot b6 treated otherwise than as-an action for the recovery of a sum of money, growing out of an alleged contract of warranty. The proper definition of its nature must therefore be controlled by the provisions of Article 12 of the Code of Practice, which are to the effect that “Actions tending to recover an immovable, or a real right, or an universality of things, such as an inheritance, are considered real; while actions for the recovery of a movable or of a sum of money, though accompanied with a mortgage,, are not real actions.”

The real warranty, as contemplated in Article 379 of the Code of Practice, arises only in the cases therein enumerated, in which the call in warranty partakes of the nature of a real action only in so far as it is an incident to the main demand.

But in an action to recover a sum of money iu connection with a covenant of warranty after an alleged eviction of the party claiming, the immovable which was the subject-matter of the sale and of the eviction then ceases to be a factor in the controversy, and such a demand must be considered as a personal action. To that effect was the ruling of this Court in a case of great, if not absolute, similarity to the statu» of the present controversy. Bracey vs. Calderwood, 36 Ann. 796.

The authority of that case also affords an answer to the contention that Horace Wright Cassidy should have been made a party as the immediate vendor of opponents. The record shows that he is a resident of Texas, and it is clear that no valid judgment could have been rendered against him as a warrantor in the present action by the courts of Louisiana. And moreover, under the views hereinafter expressed, he was not a necessary party in the issues which opponents tender to the succession of Henry Cassidy.

The deceased was his vendor, and as such the latter could not urge any demand in warranty or for indemnity against his vendee. Hence it follows that for the purposes of opponents' demand against the succession of Henry Cassidy, all necessary parties were before the court, and that a valid final judgment may under the pleadings be rendered in the case. It was not necessary to that end that Horace Wright. Cassidy, the absent heir, should have been made a party. The testamentary executor was competent to represent the succession in the present action. Article 123 of the Code of Practice provides as follows:

“ Testamentary executors may appear and defend all the actions brought against the successions they administer, when none of the heirs are present or represented in the State; but if all the heirs, or any one of them, be present or represented, none but personal actions can be brought against the testamentary executor alone.”

We therefore conclude that this ease, although presented in a very unusual form, is in such a shape as to justify us in considering its merits. This brings us to the discussion of the contested right of the opponents to sue as warrantor a remote vendor in the chain of titles without first exercising their recourse against their immediate vendor.

The sale by Henry Cassidy to Horace Wright Cassidy was executed in this State, and the deed of the latter to Spohn and Hamilton was executed in the State of Texas, and as already stated, the lands which were the subject-matter of both contracts are situated in Texas.

Hence it follows that the rights and' obligations of the parties under both contracts are to be governed by the laws of Texas. This question was discussed and maturely considered in the case of the succession of Mrs. Charles A. Larendon, 39 Ann. 952, in which the rule was formulated in the following language : The rights and obligations arising under acts passed in one State to be executed in another, respecting the transfer of real estate in the latter, are regulated in point of form, substance and validity by the laws of the State in which such acts are to have effect.”

Now, under the laws and according to the jurisprudence of the State of Texas, a grantee may maintain an action aud recover for breach of covenant of warranty against his immediate or remote vendor. Under that system “ a covenant of warranty runs with the land.” The existence and recognition of that principle in the laws aud jurisprudence of Texas, in which the coihmon law prevails,-is shown by the testimony of eminent practitioners in that State, who support their conclusions by reference to authorities in point. Hobby’s Texas Land Law, Sec. 37, B; Peck vs. Housley, 20 Texas Reports, p. 677. See also, Hunt vs. Anvidon, 4 Hill N. Y. p. 347; 42 Mich., Port vs. Campau; Stony vs. N. Y. Elev. R. R., 163.

We therefore hold that in this case opponents could maintain their action against Henry Cassidy their remote vendor, or his succession, without first exercising their recourse against their immediate vendor, Horace Wright Cassidy. And this was one of the reasons for which we held, in another part of this opinion, that as vendor or warrantor, the latter was not a necessary party in these proceedings.

We must now discuss the question as to whether opponents have been legally evicted or not-, and that involves the consideration of two-propositions:

1st. One of law, and that is whether such an eviction must necessarily result from direct judicial process against tlie alleged evicted vendee;

2d. Whether, if evicted in law, those opponents have actually abandoned the property.

I.

The negative of this proposition not only flows from competent authority on the laws and jurisprudence of Texas, but the principle is conceded in brief by the present counsel of the testamentary executor, who say: “The Texas authorities referred to by opponents * * * undoubtedly establish the fact that a purchaser may sue his vendor for a breach of the covenant of warranty without showing eviction under legal process; but they also show that, in order to recover in such action, the purchaser must plead, prove and establish the validity of the adverse title which he admits and claims to be paramount to that transferred to him by his vendor, and must show an actual dispossession by virtue thereof.”

We understand both of the foregoing propositions to be correct, and to precisely express the law which governs this point of the case.

Hence, we shall now turn our attention to the question of the alleged eviction which underlies opponents’ right of recovery.

II.

On this, which is the pivotal, point in the case the record discloses the following facts, substantially :

The lands which Henry Cassidy sold to his son, and which the latter subsequently transferred to Spohn and Hamilton, were represented, and are now held, as forming a part of a larger tract of land known as the Enrique Villareal grant, obtained by the latter from the Mexican •State of Tamaulipas. It subsequently appeared from official surveys made under the authority of the State of Texas, that tlie Villareal grant did not extend as far west as the location of the Cassidy lands and of other lands held by the grantee of Villareal, and that the State authorities proceeded to survey and to dispose of those lands as belonging to the State.

A suit was then instituted by the administrator of II. L. Kinney, who owned the grant in question, against certain parties who held under the State of Texas. That litigation was settled by the Supreme Court of Texas in May, 1884, in a decision which defined the proper limits and boundaries of the Villareal grant; and which adjudicated that all lands situated west of a certain line, which was held to be the western boundary of the grant, were not embraced in, or covered by, the Villareal grant.

That litigation is entitled Schæffer vs. Berry, executor, et al., and reported in the 62d vol. of Texas Reports, p. 705.

It is in proof in this record that the lands sold by the Cassidys are situated west of the western boundary of the Villareal grant, established by that decision; hence, they are not a part of the grant, and it follows that the title of the State of Texas and of its vendees and assignees is paramount to the title held by these opponents by means of their purchase from the Cassidys as vendees of H. L. Kinney. That state of things must be held as a legal eviction of Cassidy’s purchasers.

These facts are gathered from a voluminous record, to which it is unnecessary to refer in detail.

On the question of actual abandonment, the testimony is conflicting, but the preponderance of the evidence shows that opponents have been dispossessed of, and that they have actually abandoned, tlie lands under the title which they had acquired from Cassidy.

The judicial declarations made by them- in this action would of themselves estop them from hereafter claiming either the ownership or tiie possession of the lands in question as the grantees of Horace W. Cassidy.

These considerations lead us to the affirmance of the judgment rendered below, which was in favor of opponents for the amount of their purchase price paid to Horace Wright Cassidy, with interest of 5 per cent per annum from January 1, 1885. We are not disposed, and we find do reason, to favor appellees’ motion for an increase of the-rate of interest, and we are satisfied that the district judge has done substan - tial justice to the parties.

It is therefore ordered that our previous decree rendered herein be cancelled and set aside, and that the judgment appealed from be affirmed with costs.


text:
    No. 10,243.
    The State ex rel. D. A. Mayer vs. N. H. Rightor, Judge of Division D, of Civil District Court for the Parish of Orleans.
    Our supervisory power will be exercised only in cases where there has been a flagrant usurpation of authority, or when serious injury may occur to parties to whom no other remedies are afforded, or when the intermediate courts are without power to grant relief.
    This Court will respect the independence of inferior courts in the determination of questions confided to their judicial discretion, and will not usurp merely appellate jurisdiction not conferred upon it by the Constitution.

      If tho case in which relief is sought he appealable, the relator has adequate remedy by appeal and is not entitled to the prohibitive authority of this Court.
    A mere apprehension of injuryisnot, of itself, sufficient to justify the interference of this Court with the proceedings of inferior tribunals acting within the general scope of their powers.
    ^^PPLICATJON for Prohibition.

      Braitghn, Buck, Dinkelspicl <& Hart for the Relator.

      Leonard, Maries c6 Bruenn for the Respondent.
   The opinion of the. Court was delivered by

Watkins, J.

In an attachment suit entitled H. Wallach’s Sons vs. Dan A. Ma'yer, pending in tho respondent’s court, demand is made for ■the sum of $1,352. In a supplemental petition, subsequently filed, the plaintiffs prayed for, and obtained from the respondent a writ of sequestrationfor the seizure and detention of all the commercial books of the defendant. The defendant moved to set aside this writ on several grounds, but the motion did not prevail, though the respondent'granted the defendant a rule on the plaintiffs to show cause why tho order granting the writ should not bé vacated. ' This rule was tried, argued, submitted and discharged’by tho court.

On this substantial statement of facts the defendant, as relator here, comxilaiiis that the respondent, “in ordering said writ of sequestration, exceeded the bounds of his jurisdiction, inasmuch as the cause in which tho writ issued was not one contemplated, authorized, or allowed by law. That petitioner’s books are not subject to seizure but are expressly exempted therefrom, not only by the general laws on the subject of exemptions from seizure, but also under Article 2 of the Constitution; that the law prescribes methods by which books and papers may be brought before tho court, and said methods had been resorted to in the cause aforesaid.”

That, moreover, said judge had exceeded the bounds of his jurisdiction in thus ignoring the issue made by a rule to show causo why a writ of sequestration should not issue for his commercial books and papers, which was quoted on a previous supplemental petition, and which still remains undisposed of.

The respondent returns that tho averments of tho relator’s petition ■do not authorize this court to grant tho relief prayed for ; that it appears therefrom that he complains of an interlocutory order made by Mm in a cause of which he has full jurisdiction, and after a judicial hearing, and from which, if his complaints be well founded, he can only be relieved by an appeal; that when snch remedy exists, a writ'' of prohibition should not be granted.

He further returns that the relator did riot, at any time, except to-bis jurisdiction in the premises, and in trie absence of such plea, and * decree overruling same, the'writ of prohibition cannot properly issue.

He further shows that the original suit in which sa'id interlocutory ■order was granted lias not been tried, hut stands on answer, pending trial.

I-Iis answer concludes by stating that “ in the interest of justice and' to perpetuate evidence” he made the order complained of, and that in ■so doing he acted in his judicial capacity and, as he believes and avers, in the proper exercise of the powers vested in him by law.

We are of the opinion that the relator has not presented a case enti-. tling him to relief at our hands.

This Court has frequently decided that it would exorcise the supervisory power conferred upon it “ only in cases where there has been a flagrant usurpation of authority, or when serious injury may occur to parties to whom no other remedies are afforded, or when the intermediate courts are without power to grant relief.” State ex rel. Sinnott vs. Falls, 32 Ann. 555; State ex rel. City of New Orleans vs. Judge, 32 Ann. 552; State ex rel. Follet vs. Judge, 32 Ann. 1184.

We have said that “in the exercise of this power * * * we wish it distinctly understood that we will respect the independence of inferior courts in the determination of all questions confided to their judicial discretion, and shall not usurp merely appellate jurisdiction not> conferred upon us by the Constitution.” State ex rel. City vs. Judge, 32 Ann. 552.

We have decided that “ tire case being appealable, the relators have an adequate remedy by appeal, and are not entitled to the interposition of the prohibitive authority of this Court.” State ex rel. Follet vs. Judge, 32 Ann. 1184; State ex rel. Hernandez vs. Judge, 33 Ann. 925; State ex rel. Berthoud vs. Judge, 34 Ann. 783.

It has been held that notwithstanding the relator’s complaint may justly “cause an apprehension of injury, admitting that the court was without any authority iu the premises, as alleged, yet a mere apprehension of injury is not of itself sufficient to justify the interference of this Court with the x>roceedings of an inferior tribunal, acting within' the general scope of its powers and exercised in an apx>eaial>le case.” State ex rel. Hernandez vs. Judge, 33 Ann. 925.

As if-to summarize the principles announced in all of the cases preceding, the Court said in State ex rel. Berthoud vs. Judge, 34 Ann. 783: “ It may well be that the judgment is m flagrant violation of law, will work irreparable injury and visit a great hardship on the corporation affected by it, but under our well defined jurisdiction we are powerless to relieve the relator; and we have no more authority to revise tliat judgment than any other judgment in an unappealable case, falling, as this case undoubtedly does, witlun the jurisdiction of the court which rendered the judgment.”

These decisions cover the instant case, in every possible view that can be taken of it. The order for the issuance of the writ of sequestration was made by the respondent in a cause depending in his court,, over which he had undoubted juiisdiction. It was an interlocutory decree that he thought would subserve the ends of justice and perpetuate evidence material to said cause. Though it was granted ex parte,. he gave to the relator permission to traverse it on a rule to show cause why same should not be set aside.

A trial of this rule was held, and the rule was discharged and the writ maintained.

The principal suit stands on answer, and has not been tried or decided. The amount involved therein is below the lower limit of our jurisdiction, and hence an appeal taken from such final judgment as may be rendered therein would be returnable to the Circuit Court of Appeals. If the relator has sustained any injury by the act of the respondent, in granting said interlocutory order, it is clear that he has-adequate remedy by appeal, and it excludes the relief he has sought at our hands.

In quite a similar case the old Court entertained quite a like view of' its prohibitive power over the judge of an inferior court. In that case the relators complained that under an execution of a judgment the plaintiffs had taken a rule on them to show cause why they should not-produce their books of account, and which'had been made absolute,, notwithstanding their opposition. Of this application the Court said:-

“It does not appear to us that the present case is one in which we are legally authorized to interfere. If the defendants have sustained an irreparable injury by the order for the production of their books, or if, in the ulterior proceedings they apprehend such an injury, they may be entitled to relief at our hands by an appeal. The State vs. Judge, 2 R. 566.

The relator specially invokes the Bill of Rights as protecting his-commercial books and papers from seizure. Const., Art. 2.

It provides that “ the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and' seizures shall not be violated, and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” . .

We fail to see in what way this constitutional provision applies to-this case. Tjie one under consideration was an order for the sequestration of the relator’s commercial books and papers. It was made upon the sworn petition of the plaintiffs in a pending cimil suit in the-respondent’s court. It was made in order to perpetuate certain testimony and to further the ends of justice. It was, in no proper sense,, an order for such an “ unreasonable seizure” as is contemplated in the cited article of the Constitution, and the relator’s demand for prohibitive relief, on this ground must be denied, also.

It is therefore ordered that the alternative writ herein issued be rescinded, and that a peremptory writ of prohibition be refused, at relator’s cost.


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    No. 10,246.
    The State ex rel. Hugh Cain and David Burke vs. F. D. King, Judge of Civil District Court for the Parish of Orleans, Division B.
    "When an injunction suit is dismissed and the injunction dissolved without damages, a bond for costs is all that the plaintiff and appellant can be required to furnish to entitle him to the appeal.
    When the injunction bond has been fixed at an amount not sufficient to cover probable damages, the bond for appoal cannot be increased so as to make up the deficiency. Injunction and appeal bonds are distinct obligations, each conditioned for different purposes.
    It is neoessary, in order to ascertain the amount of a suspensive appeal bond, to consider what would be the effect of the judgment of the appellate court.
    APPLICATION for Mandamus.

      Henry L. Lazarus for the Relators.
    <7. McConnell and W. W. Vance for the Respondent.
   The opinion of the Court was delivered by

McEnery, J.

Relators, plaintiffs in the district court, filed a suit against Dennis McCarthy and L. W. Read, in which they alleged that they had been duly commissioned as harbor-masters for the port of New Orleans; and when in the exercise of the duties of said office and enjoying the emoluments of the same, the defendants asserted claim to-said office and that they were without right or authority to assume the duties or to discharge the functions of said office. That ponding an inquiry into petitioners’ title to said office they'were entitled to a writ •of injunction to prevent the defendants from interfering with them in tho exercise of tho functions of said office, etc.

An injunction issued as prayed for, on plaintiffs furnishing a bond in the sum of eight hundred dollars.

Defendants excepted to tho petition on the ground that the State alone could institute the suit. The exception- was maintained and the suit dismissed.

Plaintiffs moved for a suspensive appeal, which was granted, but the amount of the bond was not fixed. The-judge’» pao asked for argument from counsel, and took evidence as to the value of the office in •dispute. Plaintiffs took no part in this proceeding. The judge fixed the amount of the bond at $5,000.

Eel a tors pray for a peremptory mandamus directing the respondent judge to grant an appeal on a bond for costs.

The error of the district judge in fixing the amount in the bond was the attempt to make the appeal bond supplement tho deficiency of the injunction bond. They are distinct obligations, each conditioned for different purposes.

We are referred to several cases to support the position of respondent. In State ex rel. Cain vs. Judge Sixth District Court, 20 Ann. 374, there was an application for a mandamus to compel the granting of a suspensive appeal from a judgment determining the title to the office of Chief- of Police of the city of New Orleans. ■ The answer of the respondent was that a suspensive appeal was refused because the record did not show what tho bond should be. Tho judgment of the court was that a suspensive appeal bond could be framed payable to tho appellee in such an amount as tho judge should determine, and that the amount should be fixed with a reasonable regard to (lie rights of appellee, particularly where tho contest was one for office for which tho salary was easily ascertained.

In Blanchin vs. Fashion, 10 Ann. 345, the sole question before the Court was whether an appeal from a judgment distributing $3(>00, when the appeal bond was fixed at $150, operated as a supersedeas. The fund was in tho hands of an executive officer of the conit. Tho judgment Was-that tho appeal was suspensive'and that-the sheriff should have retained an amount to satisfy the claims of plaintiff.

In Coons vs. Judge, 27 Ann. 334, there' is some confusion resulting probably from not a very clear statement of tlic issues involved. We are constrained to say that the opinion therein rendered is not in -accordance with the well established jurisprudence of this State. Referring to Hickey vs. Judge, 20 Ann. 108, the Conrt said: “Under the authority of this case we feel justified in saying that the relator is ■entitled to a suspensive appeal, and the bond which he should be required to give is not the value of the property in dispute but the damages which may result from the improper issuance of the injunction.”

The appeal was from a judgment of non-suit. It is difficult to see -how the appellate court could have given any judgment for damages for the wrongful issuance of the injunction. The only judgment, the •most adverse to appellant, would have been to have affirmed the judgment, in which case the sureties on the appeal bond would only have been responsible for costs. Courts are not permitted to add conditions to bonds not authorized by law. A condition was added to the appeal bond which belonged to another bond given for a different ■object.

In Hart vs. Lazarus, judge, 34 Ann. 1210, this Court emphatically stated that the general rule is, when an injunction is dissolved without damages, the party cast is bound to give bond for appeal only for costs. As stated by the Court, there is no reason for a bond for damages other than the one given when the injunction was obtained, and that the judge has no authority to require other conditions than those prescribed by law, that the party may enjoy the constitutional right -of appeal. It is true in this case a bond was required in addition to the injunction bond for reasons assigned by the. court, but the appeal bond was fixed in an amount to cover costs only.

In the instant case there is no question raised as to the sufficiency of the injunction bond. The judgment appealed from dismissed the suit and dissolved the injunction without damages. The obligation of the surety on the bond is to satisfy whatever judgment may be rendered against the appellant on his failure to do so. Hence it is necessary, in order to ascertain the amount of a suspensive appeal bond, to consider what effect the judgment of the appellate court would'produce.

There was no judgment for the payment of money, no property was ordered to be delivered, or any special act done the non-performance of which could work an injury. If appellants were cast in the appeal, the sureties on their default could not be called upon to pay any sum of money, to deliver any property or to do any act.

Tiie only judgment that the appellate court could render against the -appellants on the appeal, would be to affirm the judgment with cost, and the liability of the sureties would be restricted exclusively to the payment of the costs of appeal. As plaintiffs and appellants could only on appeal be subjected to the payment of costs, we conclude that the amount fixed'by the district judge was excessive.

It is therefore ordered that the mandamus be made peremptory, directing the district judge to reduce the amount fixed by him for a. suspensive appeal for costs only, to be fixed by said respondent judge,, and that the parties in interest pay costs.