author: Taliaferro, J. Moegan, J. Howell, J.

text:
    No. 3575.
    Meyers and Winehill v. the Germania Insurance Company— Cochran & Co. et als., Subrogated.
    Before fclie party insured can recover on his policy, the express condition to prevent the forfeiture of tlze policy — which is — that the insured shall have the notice of other insurances taken upon tbe same property indorsed upon the instrument, or otherwise acknowledged hy the insurers in w-iting, must he shown to have been complied with.
    The propriety of such a clause in a policy of insurance is particularly apparent in this case on account of the discrepancy of testimony. Its purpose is to enable the insurance company to protect itself, and to avoid loose and unreliable evidence of notice given to them of subsequent policies being taken out on property insured by them. The rule which excludes parol evidence in such cases is well settled and strictly adhered to.
    APPEAL from tbe Sixth District Court, parish of Orleans.

      Oooley, Cotton & Levy, for plaintiffs and appellants.

      C. E. Schmidt, tor defendants and appellees.
   Taliaferro, J.

The plaintiffs, it seems, insured with the defendants on the fourth of October, 1866, a stock of ladies and gentlemen’s fancy and furnishing goods, contained in a three story brick building having a roof of slate, situated on Canal street, between Burgundy and Rampart streets, for the period of one year, to the amount of five thousand dollars. On the night of the twenty-ninth of May, 1867, the building was destroyed by fire, causing the plaintiffs a heavy loss from the destruction by fire of a large portion of their goods. After an ineffectual effort to obtain indemnity from tbe insurers under tbe policy, tbe plaintiffs brought this action.

Tbe defendants answer that they are not bound under tbe contract for the reason that tbe plaintiffs on tbe twelfth of December, 1866, effected an insurance on the same stock of goods to the amount of five thousand dollars with tbe National Marine and Fire Insurance Company, without notice thereof to the defendants until after the occurrence of the fire; that the said policy of insurance entered into between the plaintiffs and defendants in this case, contains the following express clause, viz: If the said insured or their assigns shall hereafter make ■any other insurance on the same property and shall not, with all reasonable diligence, give notice thereof to this corporation, and have the same indorsed on this instrument or otherwise acknowledged by them in writing, this policy shall cease and be of no further effect.”

In the court below there was judgment in favor of the defendants, and plaintiffs have appealed. Two bills of exceptions are found in the record relating to the admission of testimony. The plaintiffs introduced Winehill, one of the plaintiffs, to establish that he had presented the policy taken with the National Marine and Fire Insurance Company, on the same property, to the president of the G-ermania Insurance Company, and that the latter replied to him : “It is not necessary except in case of fire to send us notice.” The testimony of a brother of Wine-hill’s, was also introduced to establish that Gustave Winehill, one of the insured and a plaintiff in the case, took from a safe belonging to the witness, the policy taken by the plaintiffs with the National, and also that taken by them with the Germania, and go over to the office of the latter for the purpose of presenting them to the president of the Germania. To all this testimony the defendants objected, being inadmissible, as they averred, to establish notice of the subsequent insurance with the National by parol evidence. The objection was overruled and the testimony admitted. We think the exception was well taken. But if the testimony were admissible, it falls short when closely examined and weighed with the plaintiffs’ evidence to establish “notice with all reasonable diligence.” The witness says : “After I received the policy from the National Marine Insurance Company, I took the policy of the Germania Insurance Company and brought both policies together to the Germania Insurance Company. There I found Mr. Michel, the president of the Germania Insurance Company. I said to him here is a policy which I have effected for $5000 more in the National Marine. I said that in German, distinctly, and handed him both policies there. After he looked at them and read the policies then he said in German i . “It is not necessary except in case of fire to send us notice.” In answer to the question what was done with the policies? The witness replied: “He returned them to me.” Now on the other hand Michel, the president of the Germania Bank as a witness gave answers to the questions propounded to him as follows: State when you were first informed of the insurance in the National Marine and Eire Insurance Company effected by these plaintiffs on the stock of goods in that same store? Answer — •“ After receiving their notice, giving notice of the fire.” This notice in evidence, has date May 80, 1867, the morning after the fire. Will you please tell us if prior to that time Mr. Gustave Winehill ever called upon you to notify you of that subsequent insurance? Answer — “No.” Did you ever converse with him in regard to any subsequent insurance effected by him;or his firm on the stock of goods in that store 9 Answer — “ No.” Mr. Gustave Winehill has testified he had notified you verbally of that, and that you told him it was all right. Answer — “ No, it is not true.” You say that it is not true ? Answer — “ It is not.” You are very positive he never called upon you on that subject prior to the fire ? Answer — “ I am; he never did.”

Testimony of the conflicting character of that of these two witnesses should, at least, ceteris paribus, neutralize itself and go for nothing.

The testimony of Gustave Winehill does not pretend to fix any specific time when he went with the two policies to the president of the Germania. His counsel put no question to him to elicit the precise time at which he went to the Germania Bank to show these policies. The expression “after” I received the policy from the National Marine Insurance Company, I took the policy of the Germania Insurance Company and brought both policies together to the Germania Insurance Company, left him a large margin as to the time when he carried the policies. It may have been one day, one week, or one year after. “An express condition to prevent a forfeiture of the policy in such a case is that the insured shall have the notice of other insurances taken upon the same property indorsed upon the instrument, or otherwise acknowledged by the insurers in writing.” This plaintiff does not pretend that he required the president of the Germania to indorse such notice on the back of the policy or to acknowledge it in any other way. The propriety of such a clause in a policy of insurance is, perhaps, apparent in this case. Its purpose is to enable the insurance company to protect itself, and as well to avoid loose and unreliable evidence of notice given to them of subsequent policies being taken out on the property insured by them.

The testimony of the other witness, Morris Winehill, a brother of one of the plaintiffs, is, for the most part, hearsay, and of no weight whatever.

It was doubtless the conclusion of the judge a quo after admitting parol testimony in this case, and seeing its want of force, that judgment should be rendered for the defendants.

We think it is clearly shown by many authorities that the rule which excludes parol evidence in such cases is well settled, and strictly adhered to. See 23 An. 332 ; 3 Rob. 385; 7 Rob. 351; 16 Peters 510.

It is therefore ordered that the judgment of the district court be affirmed with costs.

Moegan, J.

Plaintiffs insured their property in the Germania Insurance Company. Their policy expressly stipulates that “if the said insured or their assigns shall hereafter make any insurance on the same property, and shall not, with all reasonable diligence, give notice thereof to this corporation, and have the same indorsed on this instrument, or otherwise acknowledged by them in writing, this policy shall cease, and be of no further effect.” They effected insurance in another company, and did not cause the same to be indorsed on the Germania policy. Now, this was the contract between the parties, and it was absolutely binding upon them. If it was not complied with, the result is that the insurance was forfeited. It was not complied with. Plaintiffs, therefore, have no right to recover.

There is the testimony of one of the plaintiffs and his brother, that the defendants were notified of the subsequent insurance, and that they said “it was all right.” This is denied by-them. It was, possibly, to avoid the chance of any such conflict of testimony that the company insisted upon the clause in the policy which has been quoted. It may be true that the company were notified of the subsequent insurance, but it was not notice alone which they stipulated should be given; it was agreed that the notice should be indorsed on the policy.

Certainly, a case might arise where the want of the indorsement would not be fatal to the insured. As for instance, if it were established that the insured had given the notice and had demanded that the indorsement be made on his policy, and the proper officer of the company had refused. In such a case the company could not shield itself for a neglect to perform its obligation. But the assured should make this refusal clear, as for instance, by putting the company in default.

I therefore concur in the decree.

Mr. Justice Wyly concurs in this opinibn.

Howell, J.

In my opinion the presentation of the second policy of insurance was written notice of the highest character of such insurance, and if there was no indorsement thereof on the policy or other written evidence that such notice had been given, it is not the fault of the insured. He did his duty, and being informed by the president of the company that it was all right, and to give notice in case of loss, he had a right to rely on such action.

To bold otherwise is simply to say, in my opinion, that the statement of the plaintiff and his brother is not believed.

I find nothing in the record to impeach their veracity beyond the denial of the president of the defendant company. They speak affirmatively and positively.

I therefore think the plaintiffs should recover.

Rehearing refused. .


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 4440.
    Elias George v. A. G. Tucker and B. F. Taylor.
    The State ox rel. Elias George instituted suit against Tucker, under the intrusion act, to recover the office of recorder of the parish of Tangipahoa. Whilst that suit was pending, George sued Tucker and injoined him from recovering the fees oí the office. The injunction was set aside on Tucker giving a release bond with sureties. There was ' ~ judgment against Tucker for the fees, George having hoen declared entitled to the office in the suit of the State u. Tucker. The plea set up by Taylor, surety on the release bond, that George could not sue for his fees of office without the interposition of the Attorney General or district attorney in his behalf, can not be maintained.
    The State having instituted proceedings to oust the intruder from the office and to install George therein, there is no good roason why George should not have taken all necessary steps to preserve his rights to the fees of the office to which he had the legal title. The Stato was interested in seeing that no one should ‘intrude into a public office, but it had no interest in the fees of the office.
    APPEAL from the Sixth Judicial District Court, parish of Tangipahoa.

      EUis, J. J>. Edwards and G. W. AT. Marr, for plaintiff and appellee.

      T. & J. Ellis, for B. P. Taylor, defendant and appellant.

      William Duncan, for Tucker, defendant and appellant.
   Ludeling, C. J.

In March, 1870, the State ex rel. Elias George instituted suit against Tucker, under the intrusion act of 1868, to recover the office of recorder of the parish of Tangipahoa.

This suit was decided in favor of George. See 23 An. 139.

While that suit was pending, George sued Tucker and injoined him from receiving the fees of the office during the pendency of the suit. The injunction was set aside by Tucker giving a release bond, with Taylor and two others as sureties.

On the trial of the suit between George and Tucker, there was judgment in favor of George for the fees received by him, etc. Taylor, alleging an interest in this judgment, has appealed. Tucker has not appealed.

He says that the injunction was unauthorized by law; that the proceedings under it are void; that the bond setting aside the injunction is not binding. And in support of his positions he cites Terry v. Stauffer, 17 An. 306; Voisin et als. v. Leche et als., 23 An. 25; 23 An. 61.

These cases do not support the positions for which they are cited. '

He further contends, that George could not sue for his fees of office without the interposition of the* Attorney General or district attorney in his behalf.

The State having instituted proceedings to oust the intruder from the office and to install George therein, we can perceive no good reason why George could not take all necessary steps to preserve his rights to the fees of the office to which he had the legal title. The State was interested in seeing that no one should intrude into a public office, but it had no interest in the fees of the office.

It is therefore ordered that the judgment be affirmed with costs of appeal.


author: Wtly, J.

text:
    No. 3509.
    M. N. Radovich v. Louis Frigerio Jr.
    The defendant ohjeoted to this action on the ground that the petition disclosed a partnership, and between partners only an action for the settlement of the partnership will lie.
    The court a qua erred In overruling the exception. The record discloses the fact that this demand grows out of a partnership between plaintiff and defendant for carrying freight and passengers for hire on the steamer Elia May. The objection to the form of the action should have been maintained.
    APPEAL from the Seventh District Court parish of Orleans.

      Oollens, Fergus Fuselier, JB. Fgan, for plaintiff and appellee.

      Breaux, Fermer & Ball, for defendant and appellant.
   On Motion to Dismiss

Wtly, J.

It is the duty of the appellant to bring up a correct transcript. If the record which he flies does not contain all the evidence, it is his duty to apply for a certiorari to correct it before the case is submitted on the merits.

In the case at bar the appellee moved to dismiss the appeal on the ground that the record does not contain all the evidence adduced at the trial below.

The case was submitted on this motion and also on the merits, without any application being made by the appellant to correct the record according to law. The fault is attributable to the appellant. It is, therefore, ordered that the appeal herein be dismissed at appellants costs.

On Rehearing.

On further examination we find that we erred in dismissing this appeal for diminution of the record, because the document supposed to be missing is in the record, being the account annexed to the petition, which probably by mistake was not marked C.” The identity of the document is sufficiently disclosed in the testimony of one of the witnesses, notwithstanding it was not marked “ C ” as stated. The motion to dismiss is therefore denied.

Osr the Merits.

The plaintiff alleges that on the twentieth of February, 1869, he entered into a verbal contract with the defendant, the owner of the steamer Ella May,” then lying near Madisonville in the parish of St. Tammany, by which petitioner was to superintend her repairs and fitting up and was to advance money for that purpose, to bring her round to the Mississippi river and run her in the lower coast trade; that petitioner was to act as captain and pilot of the boat and receive $250 per month for his services; also one-half of the net earnings of the boat and all advances made by petitioner for or on account of the boat were to be reimbursed to petitioner by the said Louis Frigerio Jr. Petitioner further represents that in compliance with said agreement he went to and took possession of said boat on twentieth February, 1869, brought her to the city, superintended her repairs, and after they were completed, ran her in the lower coast trade carrying freight and passengers for hire until seventeeth July, 1869, when he was, without ■ cause, removed from command of said boat by Louis Frigerio jr., etc. Further alleging that the defendant was about to dispose of the boat for the purpose of defrauding him, the petitioner prayedfor an attachment thereof and for judgment for $3163 23 the value of repairs.and wages alleged to be due him, and also for one-half the net earnings of said boat from the twentieth February, 1869, until seventeenth July, 1869, and costs.

The defendant excepted to the action on the ground that the petition disclosed a partnership, and between partners only an action for settlement of the partnership will lie.

The court overruled this exception, and the defendant, reserving the benefit thereof, answered to the merits. At the trial there was judgment for plaintiff for $2623 43 and the defendant appealed.

The record discloses the fact that this demand grows out of a partnership between plaintiff and defendant for carrying freight and passengers for hire on the steamer Ella May.” The objection urged to the form of the action should have been maintained.

It is therefore ordered that the judgment appealed from be annulled and that this suit be dismissed without prejudice to plaintiff asserting his demand in a proper form, plaintiff paying costs in both courts.

Rehearing refused.


author: Moegast, J.

text:
    No. 5474.
    Joseph Brugere v. The Heirs of John Slidell.
    Plaintiff -was the owner of the property on which he made certain improvements, repairs, etc., for the reimbursement of the value of which, he now sues. It is true that this ownership existed only during the lifetime of John Slidell, from whom it had been taken by forfeiture and confiscation. Still, during that time, it was absolute. heirs was brought
    Besides, most of the were against him. This would deprive him of his right to recover the value of the improve» ments. If the suit between them was a question of title, as soon as the suit was instituted, he could no longer Set up possession in good faith.
    APPEAL from the Forth District Court, parishof Orleans.
    J. Kennard, Howe & Prentiss, Lynch for plaintiff and appellee. Olarlce, Clarke, Bayce & Benshaw, for defendants and appellants.
   Moegast, J.

The United States, a the property of John Slidell. Joseph Brugere became the purchaser of a piece thereof.

On the death recover this property. They succeeded.

Brugere brings improvements, repairs, etc., which he put upon the property while it was in his possession.

He can improvements, etc., were made. It is true this ownership existed only during the lifetime of Slidell; still, during that time, it was absolute.

Slidell heirs was brought against him. This would deprive him of his right to recover the value of the improvements. If the suit between them was a question of title, as soon as the suit was instituted he could no longer set up possession in good faith.

It is therefore ordered, adjudged and decreed, the district court be avoided, annulled and reversed, aud that there be judgment in favor of the defendants, with costs in both courts.

Rehearing refused.


author: Morgan, J.

text:
    No. 5384.
    Henry J. Sorrell v. Victor Laurent.
    A suit instituted in a court without jurisdiction interrupts prescription.
    APPEAL from the Fifth District Court, parish of Orleans.

      Cullom, Hornor <& Benedict, for plaintiff aud appellant.

      S. P. Blanc, for defendant and appellee.
   Morgan, J.

This is a suit on a promissory note for $563 30, dated New Orleans, December 22, 1866, and payable four months after date. Citation issued on the fifth of May, 1874. The petition was served on the sixth of May, 1874.

The defense is prescription.

On the nineteenth of April, 1867, a few days before the maturity of the note, the defendant wrote to the attorneys of plaintiff, who held the note: It is impossible for me to pay my note to you before at least ninety days from and after May, 1867. I will be able to pay my .note on the first of August next, and not before.’’

This was an acknowledgment of the debt, and prescription commenced to run from that date.

Suit was brought on this note in the Seventh District Court, on the third of May, 1872, and citation was served on the defendant on the seventh of May, 1872. A default was rendered, which was confirmed. From this judgment a suspensive appeal was taken. The judgment, •was reversed and the suit dismissed, on the ground that the court was without jurisdiction.

But a suit instituted in a court without jurisdiction interrupts prescription, and prescription was not again acquired before the institution of this suit.

It is therefore ordered, adjudged and decreed that the judgment of the district coifrt be avoided, annulled and reversed, and that there be judgment in favor of the plaintiff, as claimed in his petition, with costs in both courts.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 5213.
    State of Louisiana ex rel. the Crescent City Water Works Company v. P. G. Deslonde, Secretary of State.
    Courts have no power to promulgate laws and none of course to render orders to others to promulgate them. If violation or remissness of official duty has occurred among those who are by the constitution authorized to enact and promulgate laws, the correction is to be sought within the powers of the legislative and executive departments, and none within those of the judicial.
    APPEAL from the Superior District Court, parish of Orleans. J. John Biae &

      JTaw1'«ins, J. John Bay, Biae & Whitalcer, for relator and appellant.

      A. P. Field, Attorney General, for defendant and appellee.
   Taliaferro, J.

An application was made on the part Of the relators to the judge of the Superior District Court for a writ of mandamus directed to the defendant, the Secretary of State, commanding him to promulgate as a law of the State by publishing in the official journal of the State an act which the relators allege was passed by the Legis-Iature of the State at the session which commenced on the first Monday of January, 1871, the act being entitled “ an act to incorporate the Crescent City Water Works, etc.” Upon a rule to show cause, the defendant, through the Attorney General answered, that there is not in the office of the Secretary of State any act incorporating “ The Company of the Crescent City Water Works” as set forth in the petition of the relators, and that there has not been since he came into office as Secretary of State. The rule was dismissed and the relators have appealed.

We find from the evidence in the record that a bill passed both houses of the Legislature at its session beginning first Monday of January, 1871, bearing the title set forth by the relators, that it was duly enrolled and presented to the Governor; that it failed to receive his approval; that afterwards, duringthe month of April, after the adjournment of the Legislature, at the solicitation of parties interested, the Speaker of the House of Representatives and the Lieutenant Governor*' caused to be made a duplicate enrolled bill from the engrossed bill in the hands of the clerk of the House of Representatives; that this duplicate copy was signed by them and certified to be a law by the Secretary of State in the usual manner when bills are not returned by the Governor to the Secretary of State within the time prescribed by the Constitution; that a certified copy of this duplicate enrolled bill was sent to the State printer for publication, which he refused to publish. The duplicate enrolled bill, it seems, is notnow to be found in the office of the Secretary of State. At the next session of the Legislature the Governor transmitted to the House of Representatives a message on the twenty-third of January, 1872, vetoing the bill, but the bill itself was. not returned with the message and it has not yet been found, so that both the original enrolled bill and the duplicate of it made from the engrossed bill are lost. A clerk who was engaged in the office of the Secretary of State in 1871 and 1872, who was introduced as a witness, recognized the copy now extant of the duplicate enrolled bill as the same copy which he made from that duplicate about the twenty-fourth or twenty-fifth of August, 1871, to be sent to the State printer. He testifies that, after the bill was handed to the Secretary of State, the private secretary of the Lieutenant Governor came in and requested the name of Oscar J. Dunn, Lieutenant Governor, to be erased from the bill, as the Lieutenant Governor did not care to have his name in the bill. The private secretary, making this request, claimed to be acting under directions of Governor Dunn. The witness states that the name was erased a day or two after he made the copy. The original bill presented to the Governor could not have become a part of the records of the office of the- Secretary of State except it had passed through the hands of the Clerk of the House of Representatives with his certificate that the bill had passed over the Governor’s veto.'

No such record is found in the Secretary’s office or elsewhere. The original bill duly certified by the Clerk of the House of Representatives and of record in the Secretary of State’s office would constitute the best evidence that the act of the Legislature in question had become a law. As it is, its authenticity and condition to become a law is a matter of grave doubt.

But courts have no power to promulgate laws and none of course to render orders to others to promulgate them. If violation or remissness of official duty has occurred among those by the constitution authorized to enact and promulgate laws, the corrective is to be sought within the powers of the legislative and executive departments, not within those of the judicial.

The order of the lower court refusing the mandamus was properly rendered.

Judgment affirmed.

Rehearing refused.


author: Wyly, J.

text:
    No. 3881.
    M. A. Dockham and Husband v. Jonathan Potter.
    This is a suit by plaintiff to annul a judgment, set aside the sale thereunder, and recover the property sold.
    The marriage of the plaintiff vacated the authority conferred in the deed of mandate executed before marriage to her father, P. S. Nugent, empowering him to represent her in all suits in this State. P. S. Nugent had, therefore, no authority to confess judgement as attorney in fact for the plaintiff, at the time he did so.
    But the judgment complained of was rendered also on the written consent of Prank Haynes her attorney. His authority to consent to the judgment with a stay of execution until a certain specified time has not been denied under oath by the plaintiff, and until thus denied the defendant was not required to prove it.
    The attorney was a sworn officer bound by his oath to act correctly in the pursuits of his profession. Thus situated, it is not to be presumed that he acted without proper-authority. On the contrary, overy presumption is in favor of his having pursued the proper course of conduct, unless the contrary should be suggested on affidavit.
    .in regard to the error in the advertisement about the exact number of feet the property possessed fronting on the street, it is an irregularity which ought not to vitiate the sale, the proceedings appearing to be regular.
    APPEAL from the Fifth District Court, parish of Orleans.

      Leaumont, J. Hornor & Benedict, T. A. Bartlette, G. Schmidt, W. B. Lancaster, for plaintiff and appellee.

      Boselius & Bhilips, Eennard, Howe <& Brentiss, for defendant and appellant.
   Wyly, J.

On the seventeenth May, 1866, Mrs. Josephine Lacoste sued out an order of seizure and sale on the mortgage note of the plaintiff for $3000, which was subsequently changed to a proceeding via ordi noria. On the twenty-second June, 1866, judgment was rendered for the amount of the note with recognition of the mortgage and with stay of execution until the first November, 1866, on the confession of judgment signed by P. S. Nugent, the father of plaintiff, as her attorney in fact, and also on the written consent signed by Prank Haynes attorney for defendants.

After the stay of execution had elapsed and the further delay caused by an injunction, which was dissolved, the mortgaged property was sold to the defendant who had previously become the owner of the judgment and regularly subrogated to the rights of the plaintiff therein.

The plaintiff now sues to annul the judgment, set aside the sale thereunder and to recover the property, on the ground that said judgment and sale are “ absolutely null and void for the following causes specially

First — That the petitioner was at the time as now, a married woman, residing in the State of California; that she had no legal representative in Louisiana and “no one legally authorized to represent her in court or bind her in the course of any litigation, compromise or c.onsent ;n that she was not cited; “that she has never been authorized or assisted in said suit or any of the aforesaid proceedings by her said husband nor by ol der of court.”

Second — That the advertisement under which the property was sold was materially erroneous in that it described lot No. 1, as having a front of thirty-four feet two inches, instead of forty-four feet two inches, by means whereof, or otherwise, the appraisers were misled into appraising the property at not half its value.

The court gave judgment for plaintiff and the defendant appealed.

The marriage of the plaintiff previous to the suit, vacated the authority conferred in the contract of mandate executed before marriage to her father P. S. Nugent, empowering him to represent her in all suits in this State. P. S. Nugent had, therefore, no authority to confess judgment as attorney in fact for the plaintiff. But the judgment complained of was rendered also on the written consent of Prank Haynes, attorney for defendants. His authority to consent to the judgment on the mortgage note with a stay of execution until the following November, has not been denied under oath by the plaintiff, and until thus deniedthe defendant was not required to prove it. “He, the attorney, was a sworn officer, bound by his oath as well as by the principles of integrity and honor which ought to characterize the profession of which he was a member, to act correctly in its pursuits. Thus situated, it is not to be presumed, that he acted in the present case without proper authority. On the contrary, every presumption is in favor of his having pursued a proper course of conduct, unless the contrary should be suggested by the opposite party on affidavit. It is true that an attorney of court may be deceived by the conduct of others, so as to undertake to represent a person, from whom there is no authority to that effect, and on a suggestion of an error- of this kind upon affidavit, it would become the duty of the court to ascertain the truth.” Hays v. Cuny, 9 M. 88. And this has been the uniform doctrine of this court since that decision; 10 M. 639: 8 N. S. 233; 4 Rob. 23; 12 Rob. 95; 1 J.*. 398; 3 An. 558 ; 5 An. 118 ; 10 An. 67 ; 24 An. 233.

That an attorney at law who consents to a judgment, as was done by Haynes in this case, is presumed to have authority to do so, was expressly decided in the case of Dangerfield v. Thurston’s heirs, 8 N. S. 235, and nothing to the contrary has ever been held by this court. If the plaintiff desired this court to notice the suggestion that the attorney at law who consented to the judgment now complained of, in her behalf, had no authority to do so from herself and her husband, she should have alleged the fact under oath, which has not been done.

In regard to the error in the advertisement in regard to the exact number of feet the property fronted on the street, we will remark that it is an irregularity which ought not to vitiate the sale. The proceedings appear to be regular.

It is therefore ordered that the judgment herein in favor of plaintiff be annulled and it is now decreed that there be judgment for the defendant rejecting this demand at plaintiff’s costs in both courts.

Rehearing refused.


text:
    No. 4436.
    Rhoda E. White v. Myra Clarke Gaines.
    The answer to an appeal which asks to have the judgment amended, filed after the motion to dismiss, without reservation of the same, waives the application to dismiss.
    APPEAL from the Fifth District Court, parish of Orleans.'

      Lecmmont, J. DeQray, Semmes <& Mott, for plaintiff and appellee.
    JFeZZows (& Mills, for defendant and appellant.
   Morgan, J.

From a judgment rendered against her the defendant took a suspensive appeal returnable to this court ou the first Monday of November, 1872.

The sufficiency of the security on the appeal bond was tested, and the district judge decided in favor of the bond.

The transcript of appeal was filed here. To the appeal the plaintiff answered, claiming an amendment of the judgment in her favor.

Subsequently plaintiff moved the district judge to order the defendant to furnish additional security, alleging that the surety on the bond first given had become insolvent. The motion was granted, and the delay in which the additional security was to be given was fixed at ten days. After the ten days had elapsed, defendant, under an application to us for a writ of prohibition, sought to have the judgment of the district court, which decided adversely to the solvency of her surety, corrected. This we declined.

The additional bond ordered by the judge was furnished.

On the sixth November, 1874, motion was filed to dismiss the appeal.

On the eleventh November, plaintiff filed a supplemental and amended answer to the appeal.

In our opinion the answer to an appeal which asks to have the judgment amended, filed after the motion to dismiss, without reservation of the same, waives the application to dismiss. Hoffman v. Atkins, 11 An. 172; 13 An. 433.

On the Merits.

The object of this suit is to enforce a'contract entered into between the parties and one John Mack, whose interest is now in plaintiff, entered into on the thirtieth May, 1864, by which the defendant agreed to pay to plaintiffs fifteen dollars out of every one hundred dollars which might be realized out of the estate of the defendant’s father.

The defense is that the agreement was without consideration, and was obtained through fraud.

No one can read the voluminous testimony to be found in this record without, in our opinion, being satisfied,

First — That the defendant knew precisely what she was doing when she signed the contract sued upon.

Second — That it was intended to be, and was, a compromise of the claims which the plaintiff asserted he had against her.

Third — That neither error, force, threats or fraud was practiced upon or against her in order to obtain her consent thereto.

Fourth — That it was entered into by her upon the advice of the counsel to whom she had submitted the protection of her interests, and who was informed of all the circumstances from herself, and under whose suspervision, if not by whose hand, the instrument was drawn.

Fifth — That months after the compromise was entered into, she acknowledged having executed it, and declared that she did not wish to retract the same.

Under these circumstances, the defense has none of the elements out of which the right to repudiate the contract can be framed.

It is ordered that the judgment of the district court be amended to read as follows:

It is ordered adjudged and decreed, that there he judgment in favor of plaintiff, Mrs. Rhoda E. White, and against the defendant, Myra Clarke Gaines, for the sum of thirty thousand dollars, with interest at the rate of seven per cent, from May 30,1865, until paid, with mortgage on the property described in the agreement and act of mortgage, dated May 30, 1864, and recorded in the mortgage office for the parish of Orleans, in Book 80 of mortgages, folios 140, 141, and 142, and annexed to plaintiffs petition and made part thereof, w.ith the right to take out execution for the sum of twenty thousand, one hundred and five dollars and twenty cents, being fifteen per cent, of the amount of money and property which is proven to have been recovered, collected and realized by the defendant since May 30, 1864, as heir, daughter and devisee of Daniel Clarke, deceased, reserving to the plaintiff the right to take out execution from time to time for fifteen dollars out of each and every one hundred dollars that may hereafter be recovered, collected or realized, by the defendant, or which she may heretofore have recovered, collected or realized, and of which no proof has been made, upon proof of said recovery being given and produced of, from or out of the property and estate formerly of the said Daniel Clarke, deceased, until the amount recovered from the defendant by the plaintiff shall amount to the sum of thirty thousand dollars, with interest at the rate of seven per cent, from May 30, 1865, until paid.

It is further ordered that the property in said mortgage described he sold to satisfy the foregoing judgment, and that defendant pay all costs of suit.

It is further ordered that as amended said judgment be affirmed, costs. to he paid by tbe defendant.

Rehearing refused.


author: Wyly, J. Morgan, J.,

text:
    No. 4034.
    Cohen & Wilson v. William Golding and Francois Lacroix.
    This suit is brought against th© sureties of a late sheriff to recover the amount of a judgment rendered against him. The main defense is the prescription of two years, pleaded under section 3546, of the He vised Statutes.
    It is true that the defendants were not sued within two years from the day of the commission of the act complained of, but their principal,, the sheriff, was, and this interrupted prescription as to them.
    Judicial pursuit as to the principal interrupts prescription as to the surety, and suit against the surety interrupts it as to the principal.
    APPEAL

      Beaumont, J. Sornor <& Benedict, for plaintiffs and appellees.

      Bice <& Whitaker, M. JE. Mvaudais, for defendants and appellants.
   Wyly, J.

The defendants, the sureties of George W. Avery, late sheriff of the parish of Orleans, appeal from the judgment against them for $941 85, the amount of a judgment against their principal for illegally releasing the seizure, pending an injunction, in the case of these plaintiffs v. Joseph Canall, No. 18,768 on the docket of the Fifth District Court.

The seizure was released on twenty-fifth June, 1868, and within two years thereafter, to wit: On twentieth June, 1870, suit was brought againt Avery for the damages resulting therefrom; and there was judgment against him on twenty-fourth January, 1871, for $941 85. Failing to make the money on execution against Avery this suit has been brought for the amount thereof against the defendants, the sureties on his official bond.

The main defense is the prescription of two years pleaded under section 3546 of the Revised Statutes, which declares that: The sheriffs and their securities shall be able to prescribe against their acts of misfeasance, nonfeasance, costs, offenses, and quasi offenses, after the lapse of two years from the day of the omission or commission of the act complained of.”

It is true the defendants were not sued within two years from the day of the commission of the act complained of, but their principal, Avery, the sheriff, was, and this interrupted prescription as to them.

Judicial pursuit as to the principal interrupts prescription as to the surety, and suit against the surety interrupts it as to the principal. Mellen v. Scott, 9 An. 174; Ferguson v. Glaze, 12 An. 667; 2 An. 916, 970; 5 An. 551; 14 An. 144; Revised Code, 2097, 3553.

Judgment affirmed.

Morgan, J.,

dissenting. Plaintiffs obtained a judgment on the twenty-fourth January, 1871, against Avery, late sheriff, and one Mora, in solido, for $941 85. The ground of the action arose out of certain alleged tortious and illegal acts of Avery and his deputies. The fieri facias issued on that judgment was returned nulla bona. The object of this suit is to recover the amount of that judgment from the defendants, who were sureties on Avery’s official bond.

They plead the prescription of two years.

This suit was instituted on the seventh October, 1872.

The illegal act complained of in the suit against Avery and Mora was done on the twenty-fifth June, 1870.

Section 3546 of the Revised Statutes provides that, Sheriffs and their securities shall be able to prescribe against their acts of misfeasance, nonfeasance, costs, offenses and quasi offenses, after the lapse of two years from the day of the omission or commission of the act complained of.”

The act complained of was committed more than two years before this suit was instituted. The proceedings against Avery, which resulted in a judgment against him, interrupted prescription as to him, but has no effect upon the ‘defendants, his sureties, who were not parties to that suit.

I therefore dissent from the opinion just rendered.


text:
    No. 5403.
    Powhatan Wooldridge, Joseph A. Cire, Subrogated v. E. Monteuse, M. S. Hedrick, Intervenor.
    Cire, the subrogee of Powhatan 'Wooldridge to a judgment obtained by the same v. E. Monteuse — which judgment was transferred from P. Wooldridge to E. Wooldridge, and by E. Wooldridge to Cire, caused a fi. fa. to issue in said judgment. Hedrick, the intervenor, took a rule against him to quash the writ, on the ground that he, the intervenor, was the real owner of the judgment, seized in the suit of Hedrick v. E. Wooldridge, and purchased by him at sheriff’s sale. Hedrick had proceeded by attachment against E. Wooldridge, absontee. In this attachment case several citations were made, but it seems that in every instance the returns of the sheriff were simply that service of petition and citation was made on the curator ad hoe in person, mentioning the name of the curator. It appears from the returns of the sheriff, that in neither of the instances werecopies of the attachment and citation ctifixod to the door of the room whore the court in which the suit was pending is held.
    Proof of service of citation is not a matter in pais, but must appear by the sheriff’s return. A court can presume nothing with regard to a party being cited.
    The failure to serve the proper citation is iatal to the intervenor’s claim to be the owner of the judgment forming the object of this litigation. Therefore the rule was properly discharged.
    Subsequently to a decision of the lower court, that the order granted for a suspensive appeal on the part of tho intervenor, plaintiff in the rule, did not suspend execution on the fi. fa., said intervenor filed a petition of third opposition and prayed for an injunction which was issued. To this proceeding an exception was filed, on the allegation that the grounds of action of the rule and of the petition for injunction were the same, and that the pendency of appeal on the rule supported the plea of Us pendens which was presented. This exception was properly maintained by the judge a quo.

    from the Sixth District Court, parish of Orleans. Sander, J.

      Henry B. Kelly, for plaintiff and appellee. H. Howard Me Caleb, for intervenor and appellant.
   Taliaferro, J.

There are two appeals in this case growing out of a contest between the plaintiff, or rather Ms subrogee, J. A. Cire, and the intervenor, for the ownership of a judgment obtained by Powhatan Wooldridge against the defendant, E. Monteuse. In both proceedings Cire was successful. The intervenor has appealed from both judgments. Cire having caused a fi. fa. to issue on the judgment against Monteuse, Hedrick, the intervenor, took a rule against him to show cause why the writ should not be quashed, on the ground that he, the intervenor, and not Cire, was the real owner of the judgment against Monteuse. The intervenor claims title by virtue of an alleged purchase by him of the judgment at a sheriff’s sale, made under fi. fa. in the suit of M. S. Hedrick v. E. Wooldridge, No. 42,345 of the docket of the Fourth District Court of New Orleans. It appears that Powhatan Wooldridge transferred the judgment he obtained against Monteuse to Edmund Wooldridge, a resident of the'State of Kentucky, and that Edmund Wooldridge, by his agent, E. R. Hogan, transferred it to Cire. Hedrick having claims against Edmund Wooldridge instituted proceedings against him as an absentee, by attaching the judgment against Monteuse as the property of his debtor, and having a curator ad hoc, appointed to represent him. Obtaining judgment in this suit he caused execution to issue, and the judgment to be seized and sold, and at the sheriff’s sale became the purchaser. The averments of the rule on Cire not only assert title in "Hedrick but attack that of Cire, on the alleged grounds that' E. R. Hogan, by whom, as agent of Edmund Wooldridge, the transfer and assignment to Cire was executed, was without authority to execute it; that prior to service of notice of the transfer to Cire, on Monteuse, the judgment debtor, notice of attachment of the judgment had been served upon him, in the suit of Hedrick v. Edmund Wooldridge, in the Fourth District Court; that Cire gave no consideration for the transfer, and that it was simulated and fraudulent; that at the time of the transfer Edmund Wooldridge was insolvent, was a resident of Kentucky, and that the judgment in this case was the only property he had in this State, and that therefore the judgment to Cire was of no avail, even if made to pay an existing debt.

In answer to the rule Cire sets forth—

First — That the alleged judgment, execution and sheriff’s sale under which Hedrick claims title are all absolute nullities, for the reason that it appears on the face of the proceedings in the suit No. 42,345, of the Fourth District Court, and of the sheriff’s returns therein, that no service of either citation or attachment was ever made on Edmund Wooldridge, he being absent from the State as alleged in the petition and affidavit, and no copy either of the citation or of the attachment was ever posted, as required by law, at the door of the room where the court was held.

Second — That the court was without jurisdiction of the cause, and its judgment a nullity, not only by reason of the want of service of the attachment or the citation, but for the further reason that it does not appear from the return of the sheriff on the writ of attachment, or otherwise, in said suit in the Fourth District Court, that any property, right or credit of Edmund Wooldridge was ever levied upon under said writ.

Third — That prior to the pretended levy under said writ, all the right of Edmund Wooldridge in and to the judgment of Powhatan Wooldridge against E. Monteuse, had been transferred to Cire ; that E. R. Hogan, by whom, as agent of Edmund Wooldridge, the assignment was executed, was fully empowered to execute it; that the consideration of the assignment was money actually loaned or deposited with Edmund Wooldridge, amounting in principal to $1200, and together with interest to the date of assignment to about $1431; that the whole transaction was in perfect good faith, and all the averments in the rule of fraud, collusion and want of consideration, false in every particular.

Fourth — That if .the averments of the rule were true, instead of being false, they would not entitle the plaintiff in rule, by summary proceeding of that character and without affidavit and bond, to correct the execution of a ft- fa.

Fifth — That the assignment from Edmund Wooldridge to Cire can not be attacked by allegations of the insolvency of Wooldridge, of fraud and collusion, in a summary proceeding by,rule, but only in .a regular revocatory action.

Upon a trial of the rule, evidence at large was gone into by both parties on the merits of their respective titles.

We are of the opinion, from an examination of the evidence, that the consideration of the transfer of the judgment from Edmund Wooldridge to Cire, was money owing to the latter by Wooldridge. The power of Hogan, the attorney in fact, to make the transfer is ample. As a witness, he testifies that prior to his transfer of the judgment he had not received notice of Hedrick’s seizure of it.

The objections to the title of the intervenor are of a graver character. Wooldridge being an absentee, he could only bring him before the courts of this State by attaching his property within the State. The mode of citation in such cases is marked out by the 254th article of the Code of Practice. If, on the contrary, the defendant has no known place of residence, conceal his person, be absent, or reside out of the State, in such case the sheriff shall serve the attachment and citation by affixing copies of the same on the door of the room where the court in which the suit is pending is held.”

In this case there was four citations and returns made. The curator ad hoe first appointed having died pending the suit, another was appointed. The first citation was issued on the twentieth of May, 1873. The sheriff’s return recites “ that after search and inquiry I was unable to find E. Wooldridge, or any one to represent him, and I am credibly informed he resides out of the State. Returned same day.” . The other citations were served upon curators ad hoc. The returns in each of these cases are simply that service of the petition and citation were made on the eiwator ad hoe in person, mentioning the name of the curator. It appears from the returns of the sheriff that in neither of the eases were copies of the attachment and citation affixed to the door of the room where the court in which the suit was pending is held. Proof of service of citation is not a matter in pais, but must appear by the sheriff’s return. 21 An. 26. A court can presume nothing with regard tea party being cited. 5 N. S. 429; 1 Rob. 30 ; 13 An. 374. In the case of Patterson v. R. R. Coy, 3 R. 232, the court said: “We have repeatedly held that the formalities prescribed by article 254 of the Code of Practice stand in lieu of citation, and that they form the basis on which all subsequent proceedings in the case must rest, and that their omission was a radical defect which rendered null and void all that had been done in the case after the filing of the petition.” Also to the same effect are the cases 9 An. 552; 23 An. 772 ; 24 An. 512.

We must regard the failure to serve the proper citation as fatal to the intervenor’s claim to be the owner of the judgment forming the object of this litigation. The judgment of the lower court discharging the rule, we think, was properly rendered. Subsequently to the taking of an order for a suspensive appeal, on the part of the intervenor, it was decided by the court below that the appeal did not suspend execution on the fi■ fa. The intervenor then filed a petition of third opposition praying for an injunction. Upon this petition, affidavit being made and bond given, an injunction was issued. Cire, thereupon, excepted to the proceeding on the ground that the petition on its face does not allege a state of facts, which if true, would entitle Hedrick to proceed against Cire by way of third opposition in this suit; that all the causes of action averred in the petition were before averred in the rule; that Cire joined issue upon all of them, and moreover averred in his answer, among other grounds of defense, the nullity of the judgment in the suit No. 42,345 of the Fourth District Court, then set up in the rule, and now again set up in the petition, as the source of Hedrick’s title; that upon all these issues trial was had, and judgment rendered declaring the nullity of the judgment set up by Hedrick; that from the judgment discharging the rule Hedrick has taken an appeal, which is still pending; that the grounds of action of the rule and of the petition are the same, and the pendency of appeal supports the plea of lis pendens, which is pleaded; and if Hedrick elects to abandon the appeal, then the judgment discharging the rule will support the plea of res judicata, which may be interposed at any time. The judgment on the third opposition maintained the exception and dismissed the opposition with costs.

We think the decree of the lower court was properly rendered.

Judgment affirmed.

Rehearing refused.


author: Taliaferro, J. Howell, J.,

text:
    No. 3660.
    Jean B. Letorey v. Edmond J. Forstall et als.
    This is a suit brought against defendants and various other persons named in the petition, who, as the plaintiff alleges, composed a partnership entered into for the purpose of purchasing and owning the Mississippi Cotton Tress and the Branch Tress, forming part of the same, which property was bought by Felix J. Forstall, now deceased, but then one of the copartners, acting as the representative bf said copartnership and using his name as a firm namo to represent the same.
    The notarial act by which the plaintiff conveyed title to the property, shows simply that the ■ plaintiff sold to Felix CF. Forstall. There is nothing that shows privity between the plaintiff and these defendants. If between Felix J*. Forstall and the defendants there existed an agreement by which the property was to be paid fbr and owned in common by them, the plaintiff shows nothing authorizing the conclusion that he considered the defendants hound to pay him any thing on this contract. He seems by the terms of the sale to have looked only to Felix J. Forstall, and the mortgage and vendor’s privilege upon the property sold. The act of sale contains nothing that warrants the belief that Felix ¿T. Forstall acted as an agent for any person.
    APPEAL from the.Seventh District Court, parish of Orleans.

      Col-lens J. Semmes & Mott, G. Schmidt, for plaintiff and appellee.

      O. Poselius & A. Philips, William S. Hunt, Saucier Miehinard, Alfred Grima, for defendants and appellants.
   Taliaferro, J.

This suit is brought against the defendant and various other persons named in the petition, who, as the plaintiff alleges, composed a partnership, entered into for the purpose of purchasing and owning the property known as the Mississippi Cotton Press and the Branch Press, forming part of the same; that Felix J. Forstall, now deceased, one of the copartners acting as the representative of said copartnership, and using his name as a firm name to represent said partnership, did on the first of November, 1859, purchase from the'plaintiff the said press and property for the sum and price of one hundred and thirty-two thousand dollars; that this copartnership, through the management and in the name of the said Felix J. Forstall, paid up from time to time portions of the price of said property, leaving due and unpaid on the twenty-ninth of April, 1868, thirty-eight thousand nine hundred and thirty-three dollars and eighty cents, for which sum with eight per cent, interest thereon from the twenty-ninth of April, 1868, this suit is brought.

The defendants filed separate answers, all pleading the general issue. Judgment was rendered against the defendants each for his share of the debt. A remittitur was afterwards entered for a portion of the amount recovered. The defendants, unable to obtain a new trial, have appealed.

We are unable to conclude that the evidence establishes the copartnership which the plaintiff alleges. He annexes to his petition an instrument signed by the parties, which recites that “the undersigned agree to join in the purchase of the Mississippi Press to the extent of the amount affixed to their names.” This instrument is dated New Orleans, nineteenth of October, 1859, and against each signature is placed the amount each one is to contribute. This instrument does not show that the parties to it intended to purchase from the plaintiff, or that they had made or intended to make any contract with him. The plaintiff is not a party to the act.

The notarial act by which the plaintiff conveyed title to the property shows simply that the plaintiff sold “ the Mississippi Cotton Press” to Felix J. Forstall for $132,500, whereof $20,000 were paid in cash, and for the remainder Felix J. Forstall executed four several promissory notes, dated on the first day of November, 1859, drawn payable to his own order, and indorsed by him, stipulating interest at six per cent, per annum from date until maturity, and eight per cent, per annum thereafter until paid. The first note was for $15,250, made payable one year after date, and the other three respectively- at two, three and four years after date, each for the sum of twenty-eight thousand two hundred and fifty dollars. The payment of these notes was specially secured by mortgage and vendor’s privilege upon the property. There is nothing that shows privity between the plaintiff and these defendants. One of them testifying as a witness, says that he never made any contract, either directly or indirectly, with the plaintiff; even now I don’t know him; no contract of partnership was formed by us.” If, between Felix J. Forstall and the defendants, there existed an agreement by which the property was to be paid for and owned in common by them, the plaintiff shows nothing authorizing the conclusion that he considered the defendants bound to pay him anything on this contract. He seems, by the terms of the sale, to have looked only to Felix J. Forstall and the mortgage and vendor’s privilege upon this valuable property. The act of sale contains nothing that warrants the belief that Felix J. Forstall acted as an agent for any person. No power of attorney is shown authorizing him to bind others or to contract with the plaintiff in any manner.

The defendants plead against the notes the prescription of five years.

The view we take that the plaintiff has failed to show any contract between himself and the defendants renders it unnecessary for us to pass on the plea of prescription.

It is therefore ordered that the judgment appealed from be annulled and avoided. It is further ordered that there be judgment in favor of the defendants, the plaintiff paying costs in both courts.

Howell, J.,

dissenting. In my opinion the fact that the sale was made to Felix J. Forstall, does not debar the plaintiff from showing that the purchaser had partners who were, or became interested in the purchase.

T think there is sufficient evidence to show that the defendants were the partners of E. J. Por&tall, and that judgment should be affirmed.

Rehearing refused.


author: Morgan, J,

text:
    No. 3897.
    James S. Rogers v. Robert Roberts.
    Tlie plaintiff sues defendant for a certain sum. of money on a contract of affreightment concerning the transportation of staves, for which he signed a hill of lading. After signing, he protested against it. This was too late. If his allegations are true, he should not have signed the hill of lading, or if he did, ho should have protested at the time.
    APPEAL from the Fourth District Court, parish of Orleans.

      Théard, J. A. Pitot, Hornor & Benedict, for plaintiff and appellant.

      J. 8. Tissot, for defendant and appellee.
   Morgan, J,

Plaintiff sues the defendant for $1385 62 on a contract of affreightment.

The allegations are that he agreed to carry single claret staves for the defendant, the staves to be about one and a half inches thick, five inches wide, and from thirty-six to forty inches long, at fifty-eight dollars per thousand; that during his absence from his vessel, the defendant caused staves of much larger dimensions to be stored in the vesel, by which he was enabled to carry only 66,110 staves instead of 90,000, as he would have done in case the defendant had complied with his contract; that while the loading was going on he frequently remonstrated with him, and that he only permitted it to proceed after having been assured that it would be made all right.

Upon these questions of fact, plaintiff, and defendant, and their ' respective agents, all testified.

As usual, they contradict each other flatly. There is in the record the testimony of a witness in Bordeaux, who measured the staves as they were taken from the vessel, who says that they were one and six-eighths inches in thickness, but he does not give their length or breadth.

Now, the plaintiff signed a bill of lading for the staves. It is true he protested against it, but this was after it had been signed. If his allegations are true he should not have signed the bill of lading, or if he did he should have protested at the time of signing; at all events, he should have shown their incorrectness affirmatively.

The district judge gave a judgment of nonsuit. We can not say from the testimony before us that the plaintiff has made out his case.

Judgment affirmed.

Rehearing refused.


text:
    No. 3557.
    William Golding v. John Petit.
    The two sections 2125 and 2153 of the Revised Statutes must he construed together, and the section 2153, allowing in certain cases a special jury, or requiring jurors to possess information peculiar to some trade or occupation, means, of course, that they are otherwise competent jurors, possessing the qualifications prescribed in the other section 2125.
    APPEAL from the Fifth District Court, parish of Orleans.

      Beaumont, J. Special jury trial.

      JR. JBJ, Marr, O. Hunt, Clarloe, Bayne & Iienshaw, for plaintiff and appellee.

      Budd, Grover, and IE. Bermudez, for defendant and appellant.
   Wyly, J.

The defendant appeals from a judgment, on the verdict of a special jury, for $1900 rendered against him for breach of contract made by him with the plaintiff, whereby he employed the latter in January, 1866, at the price of $4200, to furnish an engine, repair two boilers, supply certain materials, aud erect certain machinery to be used in a steam saw mill at the Bay of St. Louis.

The repairs were made and all the materials and machinery were delivered, except the engine, which was not delivered, because in violation of the contract the defendant failed to indicate the place of delivery, and to pay the installment of $2100 dne when the delivery should occur.

The first objection urged in this court is that the special jury was not composed of qualified voters and persons of the occupation or trade necessary for the proper decision of the case. It appears in the bills of exception taken by the defendant that two of the jurors were not registered voters, and one was not a citizen of the United States.

Section 2125 of the Revised Statutes declares that: The qualifications of a juror to serve in any of the courts of this State shall be the following: To be a duly qualified elector, without regard to race, color, or previous condition, of the State of Louisiana.”

Section 2153 provides that: “In the courts of the First Judicial District special juries may be directed to be summoned, whenever the judge shall be of opinion that the matters to be submitted to the decision of a jury are of such a nature as to require information peculiar to certain occupations or professions; in such case the judge is empowered, at the request of' either party, to direct to be summoned a sufficient number of jurors of the occupation, profession, or trade necessary for the proper decision of the case.”

The occupation of the jurors objected to, was such as to show they had sufficient information for a proper decision of the case, but not being qualified electors, under section 2125 of the Revised Statutes, they were not competent jurors in any of the courts of this State.

The two sections of the Revised Statutes quoted, must be construed together; and the section allowing in certain cases a special jury, or •requiring jurors to possess information peculiar to some trade or occupation, means, of course, that they are otherwise competent jurors, possessing the qualifications prescribed in the other section, to wit, section 2125.

Finding that the case was not tried by a legal jury it becomes necessary to remand it for new trial.

It is therefore ordered that the judgment herein be set aside, and it is decreed that this cause be remanded for new trial, and to be pro•ceeded in according to law and the views herein expressed, appellee paying cost of appeal..


text:
    No. 3652.
    E. T. Merrick, Race & Foster v. Emile La Hache—St. Louis Piano Manufacturing Company, Intervenors.
    'The effects of a third person equally with those of the lessee are, by article 2707 of the Civil Code, made subject to the lessor’s privilege, when they are by his consent contained in the lions e or store of tlie lessor. By analogy it would seem tliat tlie privilege would continue to attach like those oí the lessee, and on the same conditions, for fifteen days after removal. But, by the well established rule that privileges are stricti juris, this court is precluded from assuming that the effects of a third person are affected by the lessor’s privilege after their removal from his house or store. The law declares a privilege in favor of the lessor on the property of third persons only on the conditions imposed in article 2707 of the Code, and to those conditions it is thought that the privilege must be restricted.
    APPEAL from the Fourth District Court, parish of Orleans. Théard J.

      E. T. Merrick, Race & Foster, personally. Braughn & Buck, for defendant. Randolph, Singleton <& Browne, for intervenors and appellees.
   Taliaferro, J.

The plaintiffs leased to the defendant for the term •of two years, commencing on the first of October, 1870, the storehouse No. 142, Canal street. New Orleans, at the rate of $400 per month. After occupying the premises about a month the defendant abandoned the store and gave up business. The plaintiffs brought suit against •him and took out a writ of provisional seizure, and caused to be seized by the sheriff a stock of merchandise in the store and three pianos which had been removed from the house within fifteen days from the time of the seizure; the pianos, however, were the property of the intervenors, who had placed them in charge of the defendant to be sold bn commission on their account, and who intervened, claiming them as their property. Judgment was rendered against the defendant as prayed for, but in favor of the intervenors, and the plaintiffs have appealed.

La Hache, in May, 1870, was keeping a piano and music store in Baronne street. While there an agent of the intervenors engaged La Hache to sell pianos for them on commission, and within the course of a few months afterwards shipped to him seven pianos, which were placed in the store then occupied by La Hache, on Baronne street. When he removed.to the store he had leased from the plaintiffs he carried with him the three pianos of the intervenors, which remained unsold on the first of October. Before they were provisionally seized by the plaintiffs they had been removed from the store of plaintiffs and deposited with A. E. Blackmar, a dealer in articles of that kind.

The plaintiffs claim the lessor’s privilege on the pianos according to article 2707 of the Civil Code, which provides, “That this right of pledge affects not only the movables of the lessee and under lessee, but also those belonging to third persons when their goods are contained in the house or store, by their own consent, express or implied.”

The intervenors allege that the pianos were not in the plaintiffs* store- with their knowledge and consent; and that the pianos being goods consigned for sale on commission, and only transiently in the plaintiffs’ store, the provisions of article 2708 of the Code protects them.

The proper inquiry appears to be in this case, are the movables of a third person which have been in the house or store of a lessor, and while there subject to his privilege, to be considered when removed, as being m pari oasu with those of a lessee if seized by the lessor within fifteen days of the removal, provided the property continues to belong to the third person and can be identified ? The article 2709 of the Civil Code is express on the subject, that in such a case the movables of a lessee may be seized, but is silent as to whether those of a third person may be seized after removal. The effects of a third person, equally with those of the lessee are, by article 2707, made subject to the lessor’s privilege, when they are by his consent contained in the house or store of the lessor. By analogy, it would seem, the privilege would continue to attach like those of the lessee, and on the same conditions for fifteen days after removal. But by the well established rule that privileges are stricti juris, we are precluded from assuming that the effects of a third person are affected by the lessor’s privilege after their removal from his house or store. The law declares, a privilege in favor of the lessor on the property of third persons, only on the conditions expressed in article 2707 of the Code, and to those conditions we think the privilege must be restricted. Entertaining these views, we conclude the decree of the district court is correct.

Judgment affirmed.


text:
    No. 4738.
    Block, Britton & Co. v. Barton, Miller & Co., and Peet, Yale & Bowling v. The Same—J. M. Lewis & Co., and Charles Clinton, Intervenors—Consolidated.
    This court will, of its own motion, dismiss an appeal for want of pecuniary interest in the appellant.
    This is a controversy between the creditors of Barton, Miller & Co., íor a certain sum of monuey attached by plaintiffs in the possession of the Home Mutual Insurance Company.
    The fact that the president of the Home Mutual Insurance Company lrnew that the defendants, Barton, Miller & Co , had given J\ M. Lewis & Co., intervenors in this case, an order or draft on their agent, Charles Clinton, which he agreed to pay out of the funds of the drawers when collected from the Home Mutual Insurance Company, did not divest the legal title of Barton, Miller & Co., in and to said funds, nor place them heyond the reach of their attaching creditors, the plaintiffs herein. If the Home Mutual Insurance Company had been the drawers (instead of Charles Clinton, the agent of the drawers, or it the funds had been attached in the hands of Charles Clinton, the case would have been different, and the authorities cited by counsel would have been applicable.
    APPEAL from the Sixth District Court parish of Orleans. Sander, J.

      Byams & Jonas, for Block, Britton & Co., plantiffs and appellees. Austin, curator ad hoc, for defendants. Semmes & Mott, for Peet, Yale & Bowling, plaintiffs and appellees. Clarice, Bayne <& Benshaw, for J. M. Lewis and Charles Clinton, intervenors.
   Wyly, J.

This is a controversy between the creditors of Barton Miller & Co. for the sum of $43, 692, attached in the possession of the Home Mutual Insurance Company, being the net amount of an adjusted loss incurred by said company on a policy of insurance issued to Charles Clinton for account of Barton, Miller & Co.

Block, Britton & Co. claim under an attachment for $1048 42 levied on twenty-eighth March, 1872. Peet, Yale & Bowling claim under an attachment levied two days later for $4222 76. J. M. Lewis &. Co. found their claim on a draft of Barton. Miller & Co. for $1478 93, drawn on Charles Clinton, dated March, 22,1872, which Clinton promised to pay out of the funds he was authorized to collect for Barton, Miller & Co. from the Home Mutual Insurance Company, the president of said company being notified thereof.

The court gave judgment recognizing the preference of Block, Brit-ton & Co. as first attaching creditors and afterwards the preference of Peet,, Yale & Bowling under their subsequent attachment. The demand of the intervenors, J. M. Lewis & Co., was rejected.

Prom this judgment J. M. Lewis & Co. have appealed; Charles Clinton has also taken an appeal.

As to Charles Clinton, we are at a loss to perceive that he has any pecuniary interest in this litigation. He sets up no adverse claim to the funds in dispute. He is not personally bound to J. M. Lewis & Co., because he only agreed to pay the draft provided he should collect the drawers’ funds from the Home Mutual Insurance Company, which he has not done.

Of our own motion we must dismiss this appeal for want of pecuniary interest by the appellant in these consolidated suits. We think the court did not err in distributing the funds in controversy.

The fact that the president of the Home Mutual Insurance Company knew that Barton, Miller & Co. had given J. M. Lewis & Co. an order or draft on their agent Charles Clinton which he agreed to pay out of the funds of the drawers when collected from the Home Mutual Insurance Company, did not divest the legal title of Barton, Miller & Co. in and to said funds, nor place them beyond the reach of their attaching creditors, the plaintiffs herein.

If the Home Mutual Insurance Company had been the drawees, instead of Charles Clinton, the case would have been different and the authorities cited by appellants would have applied. Or if the funds had been attached in thehands of Charles Clinton, the authorities cited would be applicable.

It is therefore ordered that the appeal of Charles Clinton be dismissed at his cost and that the judgment herein be affirmed, J. M. Lewis ■& Co. appellants, paying costs of their appeal.

Rehearing refused.


text:
    No. 3424.
    Mrs. Ellen Yznaga Del Valle and Husband v. Steamboat Richmond and Owners.
    The rule seems to be generally adopted and sanctioned, that in order to render the carrier liable for losses of baggage or goods shipped as freight, they must be delivered and entrusted to the carrier; and in regard to baggage the liability of the carrier does not extend beyond the value of reasonable articles of apparel or convenience according lo the passenger’s condition in life and the journey undertaken by him, and for such sum as might be deemed necessary for his expenses.
    APPEAL from the Fifth District Court, parish of Orleans. Beaumont, J. Jury trial.

      George B. Bright, for plaintiff and appellant. B. H. Nrn-r, and Thomas Bunton, for defendants aud appellees.
   Taliaferro, J.

The plaintiffs seek to render the defendants responsible for the value of a set of jewels lost by Mrs. Yznaga while on board the steamer as a passenger, and of which she alleges she was robbed by thieves, who opened and entered her state room in the night time. This loss she avers was caused by the fault, negligence, and want of care of the officers of the boat in not guarding with sufficient diligence against the occurrence of such acts; that during the trip, on which this theft or robbery was committed, there were professional thieves allowed by the officers to come on board and take passage and travel on the boat; that a large number of immigrants or deck passengers were on board, who, contrary to custom and propriety, were permitted to sleep upon the floors around her rooms, endangering the safety of her property, baggage, etc., and rendering her position on board most disagreeable and uncomfortable.

She avers that she was denied suitable rooms for herself and daughters in the ladies’ cabin, but was required to occupy rooms in the gentlemen’s cabin, where she was more exposed to the danger of theft. She alleges the value of the stolen property to be $6015, and prays judgment for that amount with interest from judicial demand and costs of suit, with lien and privilege on the boat, etc.

The answer specially denies every allegation of the plaintiff, tending to charge defendants with liability for the alleged loss; and avers that ii’.any such loss did occur on board their boat, it arose from want of prudence and care on the part of the plaintiff, and not by the fault of the defendants.

The case was tried before a jury. A verdict was rendered in favor of the defendants, and from the judgment in pursuance of the verdict the plaintiffs have appealed.

It seems that Mrs. Yznaga with her three children, in returning from a summer tour in 1869, took passage at Memphis in November of that year for Waterproof, in the parish of Concordia, in this State, on board the steamer Richmond. During the voyage, Mrs. Yznaga discovered one morning on rising from bed, that the pocket of her dress, which had hung during the night in her state room, had been cut and her jewels enclosed in a small box, left in the pocket on retiring to rest, had been abstracted. Notice was soon given, and by general consent of all the passengers on board, a search was made of their persons and baggage, but without success.

The allegation that there were professional thieves on board the boat, and that to the knowledge of the officers of the boat, we do not find sustained by the evidence. Two men who took passage at Memphis for Helena, and paid their passage to that place, did not leave the boat on arriving there, and this aroused the suspicion of one of the clerks that the men were dishonestly intending to 'reach some point lower down the river without paying the additional fare. One of these men paid the additional sum required, but was severely beaten by the clerk and put on shore at some way landing above Yicksburg. The other also, by the clerk’s testimony, was “thrashed,” as he termed it, and discharged. These were the only persons on board shown to be of exceptional conduct. Nobody, it seems, suspected them of being thieves. On one occasion only, it appears, were immigrants allowed to sleep in a different place from that assigned them, and that was a case where a family that had'known better days, were allowed for one night only a more comfortable place for lodging, an accommodation granted at the solicitation of a number of the cabin passengers who paid by contribution the charges made for the accommodation. But the place assigned this family was at a considerable distance, from the plaintiff’s rooms. The family left the boat the next day and before the robbery took place.

The large number of female passengers on that trip of the boat placed it out of the power of the officers to furnish the plaintiff and her daughters state rooms in the ladies’ cabin, a fact of which Mrs. Yznaga was distinctly informed before she came on board. She was shown comfortable rooms in the gentlemen’s cabin, which she accepted and expressd herself satisfied with. The evidence shows that the plaintiff and her family were not placed in a situation more exposed to depredations of the kind she complained of, than were the other passengers. The same efforts appear to have been made by the captain and clerks for the security and comfort of the plaintiff and family that were made for others.

The rule seems to be generally adopted and sanctioned, that in order to render the carrier liable for losses of baggage or goods shipped as freight, they must be delivered and entrusted to the carrier; and in regard to baggage the liability of the carrier does not extend beyond the value of reasonable articles of apparel or convenience, and for such sum as might be deemed necessary for his expenses according to the passenger’s condition in life and the journey undertaken by him. 7 An. 362; Simon v. Miller and 5 An. 604; M. & T. Bank v. Gordon; 18 An. 664; 20 An. 402; 1 Martin, 196.

Mrs. Yznaga, it appears from the evidence, isa lady who has traveled in Europe as well as in the United States and other countries, and is not without knowledge of the caution which a person of prudence should use when traveling, to avoid losses from sharpers and thieves found in all countries along the principal lines of travel. She says in her own testimony that while at the Galt House in Louisville, she was in the habit of depositing her jewelry in the safe of the hotel whenever she went out. On her trip down the river from Memphis she was unaccompanied by her husband or any male friend, having with her three children, the eldest a girl of about twelve years of age. The jewels were carried constantly in the pocket of her dress, and left in it at night when she retired to rest. Frequently during the day she went forward in the cabin among the large number of passengers; and on one occasion, when her sympathies were excited in behalf of the passOnger whom tlie-elerk was beating and about to put ashore, for the reason, as she supposed, that he was unable to pay his passage, she rushed down to the lower deck among a large and promiscuous crowd of men, and offered to pay the man’s passage.

The evidence clearly establishes in our minds that there was on her parta great want of circumspection and care in reference to the security of the valuables which she lost, and that the loss may, to some extent, be attributed to her own lack of precaution, and not to any fault of the officers of the boat who had never had the jewels in their custody for safe keeping, and who doubtless were entirely ignorant that she had such articles until their loss was announced.

The case was before a jury, and we are satisfied they made the proper disposal of it.

It is therefore ordered that the judgment of the district court be affirmed with costs.

Rehearing refused.


text:
    No. 3541.
    Flash & Co. v. A. W. Norris—Reynolds, Dowling & Co., garnishees.
    The plaintiffs contend that the garnishees having admitted that they owed Norris, the defendant,- the sum of $2933, it is incumbent upon them to prove the correctness of every item of the sum they claim the right to retain, which plaintiffs aver the garnishees have failed to do. There is no evidence introduced by the plaintiffs to disprove the truth of the answers of the garnishees. The extent of the liability of garnishees is to be tested by their answers to interrogatories, when the truth of those interrogatories has not been disproved.
    APPEAL from the Sixth District Court, parish, of Orleans. Oooley,J.

      Hudson <& Fearn, B. B. Forman, for plaintiffs and appellants. John H. llsley, for garnishees and appellees.
   Taliaferro, J.

The plaintiffs alleging that the defendant, an absentee, owes them forty-one hundred dollars proceeded against him by attachment and took out garnishment process against Reynolds, Dowling & Co. In answer to interrogatories propounded to them they said they had in their hands subject to plaintiffs’ claim against Norris $1563 10, and no more. ' Their exhibit is that they owe Norris $2935, subject to a credit of $278. 55, paid.Cantrell & Brother, and that they retain the sum Of $1092 to pay laborers, for teams etc. and acknowledge a balance due of $1563 10. Reynolds, Dowling & Co. it seems, had contracted .to do certain work for the New Orleans, Mobile and Chattanooga Railroad Company in the construction of their road between New Orleans and Donaldsonville. Norris was a sub-contractor under Reynolds, Dowling & Co. In the contract between Norris and the garnishees it was agreed that “payments shall be made on the tenth of each month of ninety per cent, of the amount of the work done in the preceding month and, that A. W. Norris shall pay all laborers in his employ, and for all materials delivered on his contract monthly. And in case of the failure of Norris to do so, Reynolds, Dowling & Co. shall have authority to retain in their hands for the payment of workmen employed, etc. such an amount of any monthly or other estimate as they may deem proper, and may adopt such measures for the disbursement of such money retained as they may consider most judicious for the interests of all parties concerned.”

Judgment was rendered against Norris for $2887, and against the garnishees for $1563 10. On the same day a rule was taken against the garnishees to show cause why they should not be compelled to pay the balance in their hands after deducting the amount of the judgment against them, viz: the sum of $1371.

The plaintiffs contend that the garnishees having admitted that they owed Norris the sum of $2933, it is incumbent upon them to prove the correctness of every item of the sum they claim the right to retain which plaintiffs aver the garnishees have failed to do.

On the other hand the garnishees hold that their answers never having been disproved or contradicted by the plaintiffs must be taken to be true; and as Norris could not under his contract with them have claimed any sum retained by them as shown by their answers to the interrogatories, the attaching creditors have no greater rights than Norris. A rule was taken by the plaintiffs against the garnishees to show cause why their answers should not be traversed. No answer to the rule was filed, but the rule was tried contradictorily between the parties and the rule was dismissed. Prom this judgment the plaintiffs have appealed.

There was no evidence introduced by the plaintiffs to disprove the truth of the answers of the garnishees. In the case of Oakey et ais. v. the Mississippi and Alabama Railroad Company, 13 L. R. 570, it was held that the extent of the liability of garnishees is to be tested by their answers to interrogatories, when the truth of these interrogatories has not been disproved. Subsequent decisions are to the same effect. 16 An. 137; Ibidem 253 j 25 An. 365.

We think the decree of the court a qua correct.

Judgment affirmed,

Rehearing refused.


author: Howell, J.

text:
    No. 5369.
    Mrs. Mary Hardy v. John A. Stevenson.
    The judgment in this case having been rendered at a different time from that at which the appeal was applied for, the appeal could be taken only by petition and citation. Therefore the motion to dismiss must prevail.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      Muse & Philips, Barrote é Pope, for plaintiff and appellant. Breaux, Fenner & Hall, for defendant and appellee.
   Howell, J.

The judgment appealed from was signed on the twenty-fourth May, 1873, and on twenty-third May, 1874, an appeal was taken on motion in open court. Appellee now moves to dismiss the appeal on the ground that it was taken on motion at a different time from that at which it was rendered and no citation has been issued or served.

The motion must prevail, the judgment having been rendered at a different time from, that which the appeal was applied for; the appeal could be taken only hy petition and citation. C. P.

It is therefore ordered that the appeal herein be dismissed at appellant’s costs.


text:
    No. 5387.
    W. B. Scott & Co. v. A. B. Seelye.
    The rule is that want or failure of consideration will be no defense or bar to the title of a bona fide holder of a not© for a valuable consideration, at or before it becomes due, without notice of any infirmity therein.
    A valuable consideration is one having value or worth, and it is not measured by any particular degree or amount. There must be value, but not necessarily fall value, which is not always easily determined. The agreement of the parties must fix the value. A small price is value, and where it is not clearly a sham, mast be accepted as valid. In this instance, this court can not say that the willingness of the holder of the notes before maturity to take one hundred dollars for said notes, which were each for §2500, was, of itself alone, notice to the purchaser of a want of consideration.
    APPEAL from the Fifth District Court, parish of Orleans. Oullom, J.

      Hornor & Benedict, for plaintiffs and appellants. Ogden & Hill and O. N. Ogden, for defendant and appellee.
   Howell, J.

This is a suit on two promissory notes of $2500 each, the answer to which alleges that plaintiffs obtained'them after maturity and subject to equities between the maker and the first holder. When the answers of one of the plaintiffs to interrogatories were filed showing that the notes were purchased before maturity for the price of one hundred dollars, an amended answer was filed showing that the notes were not received hy plaintiffs in the usual course of business nor for a valuable consideration, and the contract by w«hich plaintiffs obtained them is tainted with usury and is therefore absolutely null by the laws of New York where it was made.

The laws of New York are not in evidence and there is nothing in the record which shows any bad faith in the plaintiffs and nothing to impeacli their title to the notes, except the smallness of the price paid for them, and the proof does not make it clear that this price was merely nominal.

The rule is that want or failure of consideration will be no defense or bar to the title of a Iona fide holder of a note for a valuable consideration, at or before it becomes due, without notice of any infirmity therein. Story on notes, §§. 191, 192. A valuable consideration is one having value or worth, and is not measured by any. particular degree or amount. There must be value hut not necessarily full value, which is not always easily determined. The agreement of the parties must fix the valne, A small price is value and when it is not clearly a sham, must he accepted as valid. We can not say that the willingness of the holder before maturity to take one hundred dollars in this instance was, of itself alone, notice to the purchaser of a want of consideration. The notes were offered at that price and the plaintiffs, who are dealers in New York in such instruments, said they were willing to give it and did so. Whatever may be the responsibility of the first holders to the maker, we think under the commercial law and the authorities, plaintiffs must recover.

It is therefore ordered that the judgment appealed from be reversed and that plaintiffs recover of defendants the sum of five thousand dollars with eight per cent, on $2500 fxom first October, 1872, and on like sum from first November, 1872, and costs.

Rehearing refused.


text:
    No. 3926.
    Francis C. Mahan, Liquidator, et al. v. Frederick Michel and Wife.
    When an appellee asks for an amendment of tlie judgment, lie will not be allowed damages for a frivolous’appeal.
    APPEAL from the Fifth District Court, parish of Orleans. Beaumont, J.

      Braughn, Bucle and Binlcelsjnel, for plaintiff and appellee. Wench <& Hufft, for defendants and appellants.
   Howell, J.

The defendant, Michel, has appealed from a judgment against him for a portion of the claim of plaintiff. The latter has asked for an amendment of the judgment, allowing him the whole amount claimed, and for damages for a frivolous appeal.

An examination of the record satisfies us that the judge a quo did not err.

When an appellee asks for an amendment of the judgment, he will not be allowed damages. 6 R. 450; 8 An. 73.

Judgment affirmed.


text:
    No. 5447.
    Albert B. Edgerly, Executor of John Marshall, deceased, v. W. G. Smith.
    'Where the minutes of the court below do not show that the order was allowed on the motion for an appeal, but where it is stated elsewhere in the record by the judge that he did grant tho order, this court will not bo disposed to make an appellant suifer for such neglect of duty by the clerk of the court a qua.

    "Where a suspensive appeal was allowed, hut the bond was not filed until more than ten judicial days after the judgment was signed;
    Held — That the "bond being for the amount fixed by the judge, tho only penalty incurred by the appellant was the right of the appellee to issue execution, the appeal operating simply as a devolutive one. The ex parte order setting aside the appeal, under the circumstances, did not divest this court of jurisdiction.
    APPEAL from the Fifth District Court, parish of Orleans. Cullorn, APPEAL J.

      E. E. Craig, for plaintiff and appellee. F. McGloin, for defendant and appellant. ■
   Howell, J.

We are asked to dismiss this appeal on the grounds:

First — That there is no order of appeal or return day fixed by the court below.

The motion for an appeal with the usual order appended is in the record and we might consider this insufficient, as we have before held, because the minutes of the court below should show that the order was allowed ; but in this case we find it stated elsewhere in the record by tbe judge, that he did grant the order, and we are not disposed to make an appellant suffer for such neglect of duty by the clerk of the district court.

Second — -The suspensive appeal taken by the appellant was dismissed by the lower court and no subsequent appeal has been taken.

A suspensive appeal was allowed, but the bond was not filed until more than ten judicial days afterthe judgment was signed. The bond being for the amount fixed by the judge, the only penalty incurred by the appellant was the right of the appellee to issue execution and the appeal to operate simply as a devolutive one. The ex parte order setting aside the appeal, under the circumstances, did not divest this court of jurisdiction.

The third ground is the corollary of the others and is of no avail.

The motion is refused.

On the merits we see no reason for disturbing the judgment. It was rendered on default and we think the evidence sustains the confirmation thereof. The court a qua did not err in refusing the evidence o.ffered on the hearing of the rule for a new trial.

Judgment affirmed.


author: Howell,J.

text:
    No. 4902.
    Thomas E. M. Smith v. Patrick Donnelly.
    The demand in tliis case being in the alternative, there was therefore no ground for the order to elect. Having forced the plaintiff to elect between a demand for a judgment homologating the award of amicable compounders, which was alleged to be a final liquidation of the partnership, and a demand for a judgment on the notes given to plaintiff for half the alleged value of the property put in the partnership, the defendant could not consistently except to the latter demand on the ground that the notes were a part of the partnership assets, or alleged to be a part thereof, when in truth, they were not so alleged to be.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      L. II. McOaleb, for plaintiff and appellant. L. O. Mix, for defendant and appellee.
   Howell,J.

The plaintiff setting out a partnership between himself and defendant, and a disagreement between them and a submission of their differences to amicable compounders, brought this suit to homologate and enforce the award which was made by said amicable compounders under the stipulation, in reference thereto, in the act of co-partnership, or in the alternative, for judgment on two notes given to him by defendant for one-half the value of the property put into the partnership by plaintiff. The defendant excepted that the demands of the plaintiff were inconsistent and prayed that he be ordered to elect on which he would proceed. The judge sustained the exception and oidered the plaintiff to elect accordingly. The plaintiff in obedience to this order, but reserving all his rights, elected to proceed on the notes and prayed judgment thereon. The defendant then filed what he called a peiemptory exception, alleging that plaintiff’s petition set out no cause of action, because the said notes are alleged to be a part of the assets of the late firm and said partnership has not been settled and liquidated. He also filed an answer setting up the defenses which it appears were made before the amicable compounders. This exception was maintained and plaintiff’s suit dismissed, reserving his right to sue for any amount that may be due on liquidation of the partnership, from which plaintiff has appealed.

We think the judge a quo erred in each of his rulings. The demands were in the alternative, and there was therefore no ground for the order to elect. Having forced the plaintiff to elect between a demand for a judgment homologating the award of amicable compounders, which was alleged to be a final liquidation of the partnership, and a demand for a judgment on the notes given to plaintiff for half the alleged value of the property put in the partnership, the defendant could not consistently except to the latter demand on the ground that the notes were a part of the partnership assets or alleged to be a part thereof. The truth is they were not so alleged to be.

But we are unable to dispose of the case and render a judgment in favor of plaintiff as he asks us to do, because no issue was joined on the demand for the homologation of the award of the amicable compounders and because the case was not tried and no evidence offered on the merits on the demand for judgment on the notes. We have no original jurisdiction of these demands.

It is therefore ordered that the judgment appealed from and the order of fifteenth May, 1873, maintaining the exception and directing the plaintiff to elect, be reversed and set aside and said exceptions be overruled, and that this cause be remanded to the lower court to be proceeded with according to law. Defendant to pay costs of appeal.