author: Breaux, J.

text:
    No. 12,621.
    State of Louisiana vs. Helaire Gaubert.
    The refusal of a .continuance, involving chiefly a question of fact within the trial court’s discretion, is not reviewable in the appellate court.
    The indictment need not contain the tenor or copy of the instrument upon which the forgery was based, but may designate the instrument by name. State vs. Maas, 37 An.;292; State vs. Boasso, 38 An. 202.
    The indictment need not set forth the name of the person on whom the order was passed, or the name of the person whom the accused intended to defraud* State vs. Adams, 89 An. 288.
    It is not necessary in the indictment to set out the value of the instrument or the amount for which the forgery was committed. Ib., Rev. Stats. 1049.
    Additional evidence maybe heard before argument is begun. It is amatter largely within the court’s discretion. 29 An. 716.
    APPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Bupré, J.

      M. J. Cunningham, Attorney General, and B. Lee Garland, District Attorney, for Plaintiff, Appellee.

      John N. Ogden for Defendant, Appellant.
    Submitted on briefs December 18, 1897.
    Opinion handed down December 28, 1897.
   The opinion of the court was delivered by

Breaux, J.

The defendant was indicted for forgery in one count and for publishing and uttering a certain forged promissory note in a second count. The jury returned a verdict of guilty; he was sentenced to serve three years at hard labor. Prom the sentence and judgment he prosecutes this appeal.

The defendant in the first place complains of the ruling refusing to grant him a continuance. The narrative of the trial judge embodied in the bill of exceptions shows that one of the defendant’s witnesses had not been served with a subpoena because of an oversight. We are not of the opinion that the court should stop its proceedings to enable the officer to serve a subpoena, unless it is manifest that the defendant has been ordinarily diligent. The question was one of fact. The court a qua did not exceed the limits of its discretion.

Counsel urged in defence on appeal that the indictment is fatally defective in that it does not charge that the accused intended to ■defraud any one.

Furthermore that the promissory note alleged to have been forged was not described in the manner required. The indictment shows that the defendant, on a date stated, feloniously forged a promissory note with intent to. defraud, and in the second count that he felo-niously published and uttered a promissory note.

Recurring to the first point raised, our attention was directed to a decision of this court in which a similar ground was considered and decided — i. e., failure to set forth the name of the one to whom it was offered and the failure to name the one it was the intention of the accused to defraud, citing in support of its conclusion the case of State vs. Maas, 37 An. 292, and Section 1052 of the Revised Statutes.

In the cited case the court held that it was not needful to show that the intention was to defraud any particular person, and that the indictment was explicit enough when it charged (as in the •ease here) that the accused “ did feloniously and falsely forge a certain cheque or bill of exchange for the sum of one hundred dollars with the felonious intent thereby to defraud.” The conclusion finds ample support in the article of the Revised Statutes 1052, directing that it shall not be necessary to prove an intent on the part of the defendant to defraud any particular person, provided it is shown that the defendant did the act charged with intent to defraud.

The second ground urged by the defendant was equally untenable, in that the instrument forged was not described.

We find that upon this point also the utterances of this court in the case last cited were conclusive against the position here taken by defendant; the court in terms holds that former essentials in indictments for forgery are dispensed with, and that under the statute of the State it is only required that the instrument be named or designated in language by which it may be usually known.

The third ground relating to non-averment of value is also within the terms of the cited authority.

We quote from the decision, supra: “Neither a copy nor a facsimile, nor any description otherwise of it or of its value, is now necessary. Citing Revised Statutes, Sec. 1049.

A promissory note has a well-defined meaning, rendering it unnecessary to mention that the forgery committed was of a promissory-note for the payment of money. It necessarily follows that it was a note for money, it having been alleged that it was a promissory note.

The defendant in support of his position cited State vs. Murphy, 46 An. 415.

In the cited case it did not appear on the face of the forged instrument that it was, or that it could be, binding upon any one; it was not such an instrument as could be forged under the statute enumerating the instruments which are susceptible of being forged. The ease here charges, in the words of the statute, that a “ promissory note” had been forged, for which the accused was convicted.

The defendant also complains of the trial judge’s ruling in permitting the State to introduce in evidence the note charged to have been forged after the State had closed the examination in chief and rested, and the defendant had commenced the examination of witnesses. We gather from the record that the prosecution had produced the note; the witness had testified with reference to it. Formally it was offered before the examination had been closed. It is well settled that the court may admit additional evidence for the prosecution after the State has commenced the examination of other witnesses. State vs. Colbert, 29 An. 715; State vs. Rose, 33 An. 932.

This completes a review of the points presented on motions and bills of exceptions. We have not found any ground to set aside the verdict, and sentence.

The judgment is affirmed.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 12,620.
    State of Louisiana vs. Charles Barfield et al.
    In case an accused ascertains on the day that is fixed for his trial that his important witnesses are absent, he should urge objection to going to trial without them; and in case his objection be overruled, he should make a formal application for a continuance and reserve a bill of exceptions to the declination of tfte trial judge to grant the postponement.
    In that way alone can the question of the judge’s ruling be examined on an appeal*
    It is not proper subject matter fon a motion for new trial reviewable in this court*
    A PPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Dupré, J.

      M. J. Cunningham, Attorney General, and B. Lee Garland, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      John N. Ogden for Defendant, Appellant.
    Submitted on briefs December 18, 1897.
    Opinion handed down December 28, 1897.
   The opinion of the court was delivered by

Watkins, J.

The defendants were indicted for the crime of manslaughter, and Charles Barfield was acquitted and Calvin Bar-field was convicted — the latter having appealed from a verdict .of guilty and a sentence to ten years’ imprisonment in the penitentiary, relying for relief upon a single bill of exceptions, to the refusal of the trial judge to grant him a new trial.

After the trial and conviction of Calvin Barfield, his counsel made an application for a new trial, in extenso, in which, amongst others, he makes the following statement, viz.

“ That a great hardship was visited upon him by not allowing him a brief delay * * * in order to produce two of his principal witnesses who were easily obtainable — living not more than twenty miles from the court house,” etc.

The averment is made that he only discovered on the morning the case was fixed for trial that these witnesses were absent, and “ at once took the necessary steps to procure their attendance ” — placing an attachment for them in the hands of the sheriff.

That on account of the character of the case and the length of time counsel supposed would be consumed in empaneling the jury and in the introduction of the testimony on the part of the State, he consented to go into the trial, confidently believing that the witnesses would be produced in due and seasonable time to give in their testimony. But he represents that the jury were empaneled and the evidence was concluded sooner than he anticipated; and that consequently he requested of the court “ a brief delay to enable (him) to supplement the evidence already offered with that of the two aforesaid witnesses” and that request wal refused.

There is no doubt in our mind that the accused has met with a hardship, and perhaps sustained an injury by being deprived of the benefit of the testimony of two of his important witnesses; but there is no fault attributable to the ruling of the trial judge. As the witnesses had been personally served they were liable to attachment; but as it came to the knowledge of defendant’s counsel that they were absent on the day fixed for the trial, he should have applied for a suitable postponement until they could have been produced, and before going into the trial, or to have gained permission to introduce them when they arrived. And in the event of a refusal of that request to have made a formal application for a continuance of the case.

Under the state of facts presented we have no power to grant relief.

Judgment affirmed.


text:
    No. 12,647.
    Rose M. Dunlap vs. Joseph F. Dunlap.
    A commission was issued to a notary to take the deposition of witnesses residing in another State; there was no oath of the materiality of the evidence sought. The commission was returned and a rule was taken on the adverse party to show cause why all irregularities should not be considered cured. It was made absolute; no objection was offered. The irregularities were cured.
    The evidence made the basis of a motion for new trial does not appear to have been newly discovered and diligence required was not shown.
    Ill treatment of the child to give the mother grief, pain, and resulting in aggravating her illness, is cause enough for separation from bed and board.
    Offensive and unendurable epithets, calculated to degrade the wife, in the presence of members of her family, are .also the cause for separation from bed and board.

      The decree as relates to the partition o£ the property-worth less than two thousand dollars, presenting in this ease an independent issue, was left undisturbed.
    4PPEAL from the Twelfth Judicial District Oourt for the-Parish of Oalcasieu. Bead, J.

      Geo. H. Wells for Plaintiff, Appellee.

      Behwing & Moore for Defendant, Appellant.
    Submitted on briefs December 15, 1897.
    Opinion handed down December 28, 1897.
   The opinion of the court was delivered by

Breaux, J.

This was an action by the plaintiff wife against her husband, the defendant, for a separation from bed and board, on the ground of excesses, cruel treatment and outrages.

The specific charges are outrages committed by the husband in her regard and cruel treatment of their children. Without taking up all the details of grievances alleged, it suffices for present purposes to state that the averments of the petition were ample to admit the evidence offered in support of the complaint.

The defendant controverted each of plaintiff’s grounds for a separation from bed and board, and alleged a number of counter charges against her.

Two girls are issue of the marriage, aged respectively seven and nine years.

There was judgment for plaintiff of separation from bed and board, dissolving the community of acquets and gains, giving plaintiff custody of the children and allowing the defendant access to them, rejecting defendant’s reconventional demand, reserving to both of the parties the right in separate proceedings, to partition the community and settle their respective property claims.

From the judgment, the defendant prosecutes this appeal.

We must, in the first place, bake up for decision the error it was urged was committed by the court a qua in overruling plaintiff’s objection to the defendant’s introduction in evidence of the depositions of two of defendant’s witnesses, residents of another State, taken under commission.

The defendant in his application for the commission had made no affidavit of the materiality of the depositions of these witnesses, though they were absentees.

It appears in due time, after the commission and answers to the interrogatories had been returned, the defendant tendered a rule to show cause why the depositions should not be used in evidence.

No answer was filed to the rule, and no reason was urged at the time against the admissibility of the evidence.

The rule was made absolute.

On the trial when the depositions were offered objections were made on the ground that only such objections as were founded upon the irregularity in the execution of the commission had been cured, and that those founded upon the irregularity or illegality in obtaining the order for the commission to issue had not been cured.

In our judgment the position is not tenable.

It was a question of form, cured by the order, making the rule absolute. Execution as used in Art. 439 of the O. P. is not necessarily limited to executing the commission by the officer to whom it is directed. It may also, impliedly at least, relate to an irregularity in issuing the commission as in executing a commission. After having thus determined, without objection on the part of any one, the court could not in the order of things be expected to return to the commission to hold that there was an irregularity bearing upon the issue of the commission.

Moreover, there was acquiescence; silence gives consent in the matter of a rule, as it does in the trial of other issues at times. The defendant in rule was expressly brought into court in matter of these depositions to indicate the irregularities at or preceding the execution of the commission, having sub silentio permitted the rule to become absolute; the objection urged on the trial of the case came too late.

The next point urged by plaintiff relates to error in overruling her objection to defendant’s introduction in evidence of letters to plaintiff.

While such letters are not admissible for the purpose for which they were offered, yet if not excluded they do not affect the issues of the case one way or the other. They, with the exception of one, are not of recent date, and have no direct bearing upon the issues of the case.

Defendant, after judgment, moved for a new trial on the ground of newly discovered evidence. The judge a quo overruled this motion. With the facts before us, we must sustain his ruling. One must show that he became aware of the evidence since the trial, and that his efforts were exerted in good faith. In case of doubt, new trial is not granted.

We pass to a summary of the evidence.

It appears that in the eighties, the plaintiff, who had been a pupil for some time in a female college North, became the wife of the defendant. Not many months after the marriage differences arose between her and her husband. It is charged that they were occasioned by defendant’s repeated acts of cruelty. They left St. Paul, Minnesota, and came to Lake Side, in Oameron parish, to establish a permanent home. The difficulties and troubles followed them. Discord and discontent reigned in their humble habitation on the Lake Side. While here she sought to provide for the members of the family by keeping a boarding house; and he also worked to aid in supporting them. They met with poor success. Distresses, of all kinds were keenly felt. Quarrels brought an aversion and an enmity. They went from this place to Lake Charles. There they became active members of one of the churches; he was chorister, also superintendent of a Sunday school. The agencies and good influences of the church did not tend to lessen the anger and animosity between plaintiff and defendant.

We have noted that they are connected by children; this consideration has had, it appears, no effect.

The weight of evidence reveals that severe punishment was inflicted upon the children by the father, not, it is siid in substance by the witnesses, to make them better, but to annoy and afflict the mother.

If the evidence be true — we have no reason to question its veracity —the punishment certainly was excessive.

We will not recount the particulars of the flagellations; it is enough to say that they were at times, in the opinion of witnesses, extreme. The attending physician testifies that plaintiff was of a nervous temperament, and that there was some unknown cause to-him that aggravated her illness. Plaintiff’s mother sought to trace the cause to the alleged ill treatment of the children by the defendant. Punishment of children is not cause for separation from bed and board. It must be made evident that the ill treatment of the child in the mother’s presence was solely for the purpose of giving her grief, and that it affected her health. There was testimony offered to bring the case within the application of that principle of law relative to divorces. The mother of plaintiff testified in regard to the treatment of the children by the defendant: “ When she was sick it made her very much worse. I think she suffered more in her mind from his treatment of the children than from anything else.”

Moreover, there were reproaches, in language we will not write down, coming from the husband, which were, it is urged, unendurable.

The nature and feelings of persons greatly differ. Treatment which would cause great suffering and even sickness with one, would barely impress itself upon the mind of another.

The judgment of the District Court sought to put an end to a union which has every appearance of being miserable! He saw and heard the witnesses. We presume that he had a personal acquaintance with most of them. We have found no reason to differ from the conclusion he arrived at in regard to its weight and its preponderance.

With reference to the partition of the property referred to by the District Court to a later date. The amount included is below the lower limit of our jurisdiction. It is now an independent issue to be disposed of in the manner decreed by the District Court.

It is therefore ordered and adjudged that the judgment appealed from be affirmed.


author: Blanchard, J.

text:
    No. 12,649.
    Ed. Duncan vs. St. Louis, Iron Mountain & Southern Railway Company.
    1. Question Presented: Is this a cause removable to the United States Circuit Court as a controversy between citizens of different States?
    2. This must be determined from the face of the record — /. e.} the original petition and the one for removal.
    -3. Corporations are treated, for purposes of jurisdiction or removal, as citizens of the State under whose laws they are organized.

      4. And for such purposes the corporation of one State does not, by consolidation with another corporation of another State, become a corporation of such other State. The separate identity of each as a corporation of the State by which created, and a citizen of that State, is not lost by the consolidation.
    A PPEAL from the Fourth Judicial District Court for the Parish of Grant. Machen, J.

      Young & Whitelaw and W. O. Roberts for Plaintiff, Appellant.

      Hudson, Potts & Bernstein for Defendants, Appellees.
    Submitted on briefs December 16, 1897.
    Opinion handed down December 28, 1897.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff, a citizen of Arkansas, brings this action against defendant, alleged to be a corporation organized under the laws of the States of Arkansas and Missouri, carrying on the business of common carrier, from Little Rock, Arkansas, to Alexandria, Louisiana.

The cause of action was the killing of plaintiff’s son in the wreck of a freight train on defendant’s road within the limits of Grant parish, in April, 1897. The person killed was employed as brakeman. The suit was filed in Grant parish and damages laid at thirty thousand dollars.

Defendant immediately filed an application for removal of the cause to the Circuit Court of the United States for the Western District of Louisiana.

The petition for removal states that the controversy is wholly between citizens of different States; that defendant corporation was and still is a citizen of Missouri, while plaintiff was and is a citizen of Arkansas.

The District Judge granted the order of removal and plaintiff takes this appeal therefrom.

The question presented is: Is this a cause removable to the Circuit Court as a controversy between citizens of different States?

The case as made by the complaint, and as it stood at the time the petition for removal was filed, is the test of the right to remove. Graves vs. Corbin, 132 U. S. 571.

And on the filingof the removal petition, the only question for the State court is whether, on the face of the record, the petitioner is entitled to removal. Stone vs. South Carolina, 117 U. S. 430; 122 U. S. 513; 138 U. S. 298; 42 An. 53.

When a suit is sought to be removed by a corporation on the gx-ound of citizenship, the petition for removal, or pleadings, should show not only that the corporation is a citizen of another State, but that it is not a citizen of the State where the suit is brought, or of the State of which plaintiff is a citizen. 42 Fed. Rep. 803; 46 Fed. Rep. 577; 41 Fed. Rep. 571.

And a case is not removable on such ground unless that at the commencement of the action, and also when the removal is asked, the defendant was a citizen of another State than the one in which the plaintiff was and is a citizen. Stevens vs. Nicholls, 130 U. S. 230; Kellam vs. Keith, 144 U. S. 568; 158 U. S. 53.

Corporations are citizens and residents of the State under the laws of which they were created. 32 Fed. Rep. 673.

And they are treated, for purposes of jurisdiction or removal, as citizens of the State under whose laws they are organized. A. and E. Ency. of Law, Vol. 20, p. 993; Desty, Removal of Causes, p. 65.

The petition of complainant avers the organization of defendant corporation under the laws of both Arkansas and Missouri. No specific denial of this appears in the petition for removal, and in defendant’s brief it is stated as a fact that defendant corporation was formed'by the consolidation of companies originally chartered by the States of Louisiana, Arkansas and Missouri. This makes the consolidated company, for all purposes in the State or Federal courts, a citizen of each of those States. Fitzgerald vs. Mo. Pac. R. Co., 45 Fed. Rep. 815.

It is a matter of judicial record that the Cairo & Fulton Railroad Company was incorporated by act of the Legislature of Arkansas, in 1853; that the St. Louis & Iron Mountain Railroad Company was organized under the laws of the State of Missouri; that in 1874 a consolidation of these companies took place under the name of the St. Louis, Iron Mountain & Southern Railway Company (defendant herein), which became a new corporation; and that this consolidation was consummated under permission of the laws of both States. See case of St. Louis, Iron Mountain & Southern Ry. Co., vs. Berry, 113 U. S. 475.

Referring to this consolidation the Supreme Court of the United States in that case declared that when the new corporation came into existence it did so as a corporation of Arkansas, in pursuance of its Constitution and laws, and subject in all respects to' their restrictions and limitations.”

In the Fitzgerald case, supra, it was said of the consolidation of the companies therein mentioned that “ by the consolidation the corporation of one State did not become a corporation of another, nor was either merged in the other.. The corporation of each State had a distinct legislative paternity, and the separate identity of each as a corporation of the State by which it was created, and as a citizen of that State, was not lost by the consolidation.” And it was held that the consolidated company was conclusively presumed to be a citizen of each of the States whose laws contributed to its formation, must answer to the courts and be amenable to the laws of each State respectively as a corporation thereof. See also Chicago, etc., R. R. Co. vs. Lake Shore, etc., R. R. Co., 10 Biss. (U. S.) 122; Pacific R. R. Co. vs. Mo. Pac. R. R. Co., 5 McCrary (U. S.), 373; Cohn vs. Louisville R. R. Co., 39 Fed. Rep. 227; Home vs. Boston & M. R. R. Co., 62 N. H. 454; Paul vs. Baltimore, etc., R. R. Co., 44 Fed. Rep. 513; Guinault vs. L. & N. R. R. Co., 41 La. An. 571; 136 U. S. 356; 18 Fed. Rep. 50; 22 Fed. Rep. 561; 94 U. S. 444; 13 Wall. 271; 1 Black. (U. S.) 286.

Defendant corporation may be a citizen of the State of Missouri as set forth in the petition for removal, but it appears that it is not a corporation of that State only. It is a corporation likewise of Arkansas, and, as the plaintiff is a citizen also of Arkansas, removal can not take place. Martin’s Admr. vs. B. & O. R. R. Co., 151 U. S. 673; 119 U. S. 240; 107 U. S. 581.

It is therefore adjudged and decreed that the order of removal be vacated, the case reinstated on the docket of the court a qua and be proceeded with according to law — costs of appeal to be borne by defendant and appellee.


text:
    No. 12,650.
    Wm. Schlater vs. Charles A. Brusle et als.
    A revocatory action for the annulment of a judicial sale, on the ground that com - petition in bidding for the property sold was prevented and defeated through fraud and collusion on the part of the purchaser and his attorney, imposes upon the plaintiff the burden of making that charge clear by a fair preponderance of evidence.
    In case the sale complained of is made under fi. fa. and executory process, contemporaneously executed, informalities in the executory proceedings alone will not vitiate a sale to a third person if the proceedings under the execution are not alleged to have been in any manner irregular or illegal.
    A PEAL from the Fourteenth Judicial District Court for the Parish ^ of Iberville. Talbot, J.

      Sholars & Sehreiber, Guy Hébert and O. K. Sehwing for Plaintiff, Appellant.

      Louis Lozano for Defendants, Appellees.
    Argued and submitted December 17, 1897.
    Opinion handed down December 28, 1897.
   The opinion of the court was delivered by

Watkins, J.

This is a revocatory action, the object of which is to annul a judicial sale of a sugar plantation on a charge of fraud and collusion.

The claim of the plaintiff is, that the Star plantation situated a few miles from Plaquemine, containing about thirteen hundred acres, and cultivated as a sugar plantation, was purchased by the plaintiff in 1891 for eighteen thousand dollars — part of -the price having been paid in cash and part represented by notes secured by mortgage and vendor’s lien.

That Mrs. Elizabeth Dupuy, holding one of said notes for three thousand dollars, brought suit thereon and obtained judgment; and Charles Brusle, one of the defendants, having purchased same, . caused a writ of fi. fa. to issue thereon and said mortgage property to be seized and advertised for sale. That concurrently with said proceedings, Mrs. Lelia Sherborne, holder of another of said mortgage notes, obtained an order of seizure and sale and caused said property to be seized; and under said two writs the entire property was sold and adjudicated to the defendant for the price of six thousand six hundred and seventy-five dollars.

Conceiving that his property had been sacrificed, as the result of a fraudulent conspiracy, which was devised and consummated by said purchaser and his attorney, plaintiff brought this suit; and from an adverse judgment he prosecutes this appeal.

While in the petition a number of avérments and specifications of fraud are made, the following is the only one mentioned in the briefs, others being simply referred to in the argument, viz.:

“The plaintiff charges that an unlawful combination was entered into by the defendants, having for its object the preventing of a fair appraisement of his property and the silencing of all competition at the building, with the result that his property, which was well worth twelve thousand dollars, was adjudicated to Ohas. Brusle, one of the defendants, for six thousand six hundred and seventy-five dollars, He also charges that Louis Lozano, the attorney for the defendant Brusle, illegally acted as sheriff, performing judicial functions in making the sale complained of, and that same should be annulled for that reason.
Other charges of nullity are set out in his petition herein, which will be noticed later.”

This charge is thus epitomized in the brief:

“For quite a number of years J. M. Halloway had been anxious to buy the property, was prepared to pay eight thousand dollars cash for it on Saturday, the day of sale, yet he stood by and saw it sell for six thousand six and seventy-five dollars to Oharles Brusle, and on the following Monday bought the same property from Brusle' for ten thousand dollars ” (p. 3).

The claim of the defendant, Brusle, is, that there was neither a combination or collusion in the sale, nor the antecedent proceeding leading up thereto; and the averment is made in his answer that . the plaintiff participated actively in all proceedings for sale and solicited and appointed an appraiser and thus consented to and acquiesced in the sale.

The other defendants made like defences.

The record shows that on the 14th of March, 1891, Nancy Dodd, widow of John Schlater, made a sale of Star plantation in the parish of Iberville, consisting of one thousand three hundred and seventy-four acres, and all the stock and working cattle thereon, and all the agricultural implements and movable effects thereon, in globo, to William Sehlater and Harriet Sehlater, jointly and in indivisión, for the price of eighteen thousand dollars; and that of this sum only three thousand dollars was paid in cash, and the remaining balance was represented by five notes of three thousand dollars each — maturing in one, two, three, four and five years after date, and bearing six per cent, per annum interest.

It appears from the act of sale that the two notes first maturing were secured by special mortgage on the lower half of the plantation —the portion thereof thus burdened being particularly described — and the third and fourth notes maturing were secured by like special mortgage on the upper half thereof — said portion being likewise designated therein.

The fifth instalment was likewise secured by special mortgage on ■the upper half; though the act is not quite clear as to same being represented by a note.

The act of sale was notarial in form and the notes were paraphed ne varietur in order to identify them therewith; aud they are written “we promise to pay to the order of ourselves,” and signed and ■endorsed in blank, by the two vendees, Wm. Sehlater and Harriet Dupuy.

The executory proceedings of Lelia Sherborne were directed against the upper half of the mortgaged premises alone, based upon the note for three thousand dollars, which fell due four years after date; and the suit and judgment of Elizabeth Dupuy vs. Wm. Schlater and Harriet Dupuy was predicated upon the note, which fell due three years after date — both notes being secured by mortgage upon the upper half of the plantation, exclusively, and which was seized under both writs, and no other property.

All of the notices, advertisements, writs of sale, certificates of mortgage, sheriff’s returns, appraisements and proees verbals of sale describe the upper half of the plantation alone; and the appraisement was ten thousand dollars, and the adjudication was to Charles A. Brusle, plaintiff in execution, for six thousand six hundred and seventy-five dollars, two-thirds of the appraisement, having purchased the suit and judgment of Elizabeth Dupuy vs. Wm. Schlater and Harriet Dupuy, pending advertisement and sale.

And the following extract from the prooes verbal shows the man ner in which the proceeds of the sale were applied, viz.:

To Mrs. Lelia Sherborne, her pro rata in suit No. 454, the sum of. $2,296 57
To the purchaser herein in suit No. 80S. 1,842 57
And to the holder of the balance of said mortgage. 2,100 76

the sum of four hundred and thirty-five dollars and twenty cents having been applied to the payment of costs and attorney’s fees in executory proceedings.

It thus appears by ineontestible evidence that at the date of sale the adjudicatee was owner of a judgment on the third note of the series, on which execution had been issued and the property mortgaged had been seized; and it likewise appears that, contemporaneously with said seizure under fi. fa., a seizure was made by execu-tory process in favor of Mrs. Sherborne, the sale having been made under both writs at one and the same time.

With regard to the sale thus consummated the principal points of the parol evidence are substantially as follows, viz.:

That both of the Messrs. Halloway were present on the day of sale, but neither of them made a bid for the property. That Charles A. Brusle was the only bidder; or rather the property was bid in for Brusle as purchaser, by the attorney at law who was representing him in the proceedings. That Mr. James Halloway stated to one of the witnesses that he had been to New Orleans and seen some of his friends, and had made arrangements to get the money to buy the Star plantation.

That that occurrence took place about “ a month or perhaps more before the sale.” That “he said be would bid as high as eight thousand dollars for it.”

One of the witnesses says that he “ found out that Mr. Halloway had made a bid of eight thousand dollars cash, and (he) did not propose to pay that much for the place.” That “ he came there with a view of looking at the place, but when he heard that Mr. Halloway had offered eight thousand dollars cash (he), would not go (any further).”

That he “ did not intend to pay eight thousand dollars cash for the place. From what (he) heard of the place, and what he saw from the papers, (he) was not willing or prepared to pay eight thousand dollars cash for the place.”

Another witness states that he offered the defendant, Brusle, six thousand dollars for the Star plantation; and he thinks it was the best offer he ever made for it.

He says it is not true that the defendant’s attorney ever attempted to influence him in any way about fixing the appraisement of the property, or that he ever spoke to him about it. This witness was the appraiser who was selected by .Brusle. Said he was a man of means, and was well able to buy the property if he had desired; and that no one attempted to influence him not to bid on the property. On the contrary, Captain Brusle had spoken to him about buying it, and said that he hoped he would; but that he told him he would not pay him seven thousand dollars for it. That conversation took place at least one year before the sale; but he did not renew that request after the property was advertised for sale.

The appraiser who was chosen by the defendant in execution — the plaintiff in this suit — denied that Brusle or his counsel attempted to influence him in making the appraisement on that property, as neither “ ever spoke a word to him about it.”

. Another witness puts an estimate of nine thousand dollars on the upper half of the plantation which was sold.

The foregoing is a synopsis of the testimony of the plaintiff’s witnesses :

The defendant, Brusle, says he “never committed an act or deed whereby the rights or interests of the plaintiff in this suit were affected; on the contrary (he) did everything in his power to further the interest of the plaintiff.”

The attorney for the defendant, Brusle, says he “ never, throughout the whole of those proceedings, committed a single act or deed by which the interests of the plaintiff would have been affected or injured; but on the contrary (he) did all he could to further his interests. That he never had other than the friendliest and kindest feelings toward him, and would have been glad if the property would have sold for enough to cover all his indebtedness.”

J. M. Halloway says “ that when Captain Brusle bought the judgment of Mrs. Dupuy he decided then not to bid on the property.

* * * That he would not bid on the property after Oaptain Brusle bought the judgment of Mrs. Dupuy, because he considered that that gave him the advantage,” etc.

He admits going to Brusle’s attorney to see about purchasing the property subsequent to the sale; and on the Monday evening following the sale he bought the property — but only by a verbal agreement. That the price agreed on was four thousand dollars cash, and the balance of the ten thousand dollars in five equal annual payments, with interest and mortgage retained.

This witness made the further statement, that he' “ had made up (his) mind not to bid against Oaptain Brusle after he had bought that judgment. One of the reasons that (he) did not bid eight thousand dollars after having made arrangements to borrow the money was, that (he) would rather be in the hands of Oaptain Brusle than in the hands of a commission merchant.”

This is the substance of the defendant’s.testimony.

In rebuttal, both the plaintiff and his daughter testify, that James Halloway said, after the sale, that the reason he did not bid at the sale was, that Brusle’s counsel would not let him, stating “ that if he did bid against Oharles A. Brusle he would have to pay * * * more than ten thousand dollars for the property.”

Without considering the objections to this statement, but on the contrary giving it full weight and effect, we are of opinion that there is enough evidence in the record to sustain the sale; or rather an insufficiency of proof to successfully assail and destroy it.

The plaintiff bears the burden of showing by a fair preponderance of the evidence that the judicial sale to the defendant was either fraudulent or simulated; that is to say, that the said defendant, by himself or through his counsel, caused or procured bidders not to compete with him for the purchase of the property at the judicial sale thereof. Whereby its adjudication to him was procured at a price much less than its real and true value.

Prom the testimony we have cited and other testimony in the record, it is quite clear that he has not discharged that burden.

Quite the reverse is true, for the proof shows that the whole of the Star plantation in its entirety, with work stock, farming implements and other immovables by destination, constituting a complete sugar plantation outfit, was sold to the plaintiff in 1891 for eighteen thousand dollars, and of this only three thousand dollars in cash, and the remainder on one, two, three, four and five years’ time; and that in 1896, the upper half of said plantation, without any of said aecesories, was appraised at ten thousand dollars, an advance in valuation of more than one thousand dollars.

Id further shows that the plaintiff, as the defendant in execution, selected and appointed an appraiser, who participated in said ap-praisement, and as a witness testified to the impartiality thereof.

It further shows that at the sale the property was adjudicated to the defendant, Brusle, at two-thirds of the appraisement, in default of another and higher bid; and that he and his attorney both testify that no inducement was offered or effort made to prevent competition in bidding therefor.

Prom this statement our conclusion is, that on this branch of the case the decision of the court below was correct.

We have not failed to note the fact that many objections were made, and bills of exception reserved to the rulings of the judge, by counsel for the plaintiff; and we are not prepared to say that many of them were not well taken, abstractly considered; but in view of the facts we have selected from the testimony of the witnesses, it is evident that the rejected testimony could not exercise any material bearing on the result.

There are several grounds of complaint raised in the plaintiff’s petition which appertain to certain radical defects and informalities in the executory proceedings preceding the sale, such as the want of due notice of the order of seizure and sale, and that the plaintiff’s attorney in the executory proceedings was at the same time the deputy sheriff who executed all of the orders of the court in connection therewith.

But, in view of the fact that the sale was made under and by vir - tue of a fl. fa. as well as executory process, the sale to a third person could not be successfully attacked, as no complaint is made of the proceedings and sale under the execution — the proof failing to show that the charge against the defendant’s attorney was well grounded.

Judgment affirmed.


text:
    No. 12,653.
    William B. Collins vs. Margaret Ryan.
    The proof disclosing that the relations of the defendant insisted upon the plaintiff marrying her, believing that he had seduced and ruined her, and that to marry her was his duty under the circumstances; and further, that the plaintiff upon due consideration of the pressure which was brought to bear upon him, and of his duty to repair a wrong he had done the girl, yielded a reluctant and passive consent to the performance of a marriage ceremony — held that a case is not presented which justifies a court of justice in annulling the marriage which was thus* brought about. Lacoste vs. G-uidrez, 47 An. 295, affirmed.
    A PPEAL from the Twelfth Judicial District Court for the Parish of Calcasieu. Bead, J.

      Schwing & Moore for Plaintiff, Appellant.

      B. L. Belden for Defendant, Appellee.
    Submitted on briefs December 16, 1897.
    Opinion handed down December 28, 1897.
   The opinion of the court was delivered by

Watkins, J.

The object of this suit is to obtain a judgment decreeing the ceremony of marriage between the plaintiff and defendant ab initio null and void, and that they were never married to each other; and further decreeing that no community or other marital rights ever resulted from the ceremony of marriage which was performed between them — their legal status of unmarried persons never-having been thereby changed or affected.

The allegation of the petitioner is, “That on the 10th of June, 1897,. he was compelled by force and threats to procure a (marriage) license and go before John L. Wasey, justice of the peace, at Lake Charles, La., and there, under threats, to go through the ceremony of marriage with (the defendant).”

He avers that he had never promised said Margaret Ryan to marry her, and that she had no legal or just ground to demand of him that he should marry her; and that one George W. Ryan, an uncle of the defendant, commanded him to marry her under penalty of death— said Ryan being aided, abetted and assisted by several other male relatives of the said defendant, while petitioner was at the same time protesting against this exercise of force and duress. And he further avers that notwithstanding his unwillingness to marry her and repugnance to said marriage, and his protestations to them that Margaret Ryan had no claims upon him whatever, said George W. Ryan and his associates forced him, under fear of death, to go to the clerk’s office and take out a marriage license to marry her, and forced him to go before said justice of the peace and there in the presence of said persons to go through the marriage ceremony — said justice of the peace and the said Margaret Ryan being at the time fully aware that he was acting under duress and violence and altogether against his will in submitting to said marriage ceremony.

He further alleges, that immediately after the completion of said marriage ceremony he withdrew as soon as he was released from said coercion and duress, without saying one word to Margaret Ryan — protesting that said ceremony and proceedings were against his will, without his consent and under duress and fear of instant death — and has ever since continually remained away from her and refused to consummate the marriage by cohabiting with her.

Therefore petitioner avers that said marriage ceremony and other proceedings were violations of law, against his consent under force, duress and compulsion, and can not in law produce any legal results.

The answer of the defendant is a general denial.

After due proceedings and trial there was a judgment pronounced against the plaintiff, rejecting his demands, and he prosecutes this appeal therefrom.

One of the plaintiff’s witnesses testified that about three hours previous to the marriage he told the plaintiff that he had seduced defendant, his niece, and had to marry her; and that his reply was “ to give him a little time and he would do what was honorable by her.” That two or three hours afterward he happened to meet the plaintiff at the railroad depot, just as he was about to board the train, and “ stopped him and told him to come back to town and fulfil the promise he had made me.”

The witness said he did not threaten plaintiff with violence, but that “he insisted upon his going back with him.” He said he stayed with him' until he married the defendant; that he stayed with him for the purpose of seeing that he married her.

He said that he used no force, but told him he had to marry the defendant. That it was his privilege to marry her or not; but that he intended to do everything (he could) to make him marry her.” He states that he accompanied him to the clerk’s office to procure a marriage license. That plaintiff asked him “ to go and get John "Wasey ” (the justice of the peace), and he went to Wasey’s boarding house after him.

He states that “ after he told me he would do what was honorable-by (the defendant), he did not stay with him; but it was several-hours afterward before he saw him again.”

There were only five present at the ceremony in addition to the parties and the justice of the peace.

On cross-examination the following occurred, viz.:

“ Q. Did Oollins at any time refuse to marry this girl?
“ A. No, sir?
********
“ Q. When you went to the house of Mr. Stoddard — the place where the ceremony took place — were there any threats (made) against him?
A. No, sir.
“ Q,. Did he not go through the marriage ceremony willingly?
A. I was not in the house when it went on.
“ Q. You did not see any violence toward him, did you?
A. No, sir.
" Q. If he had persisted in not marrying her could he not have done as he wanted to ?
“ A. I think he could.
Q,. Did he appear to be frightened?
“ A. He did not seem so.
*******
“ Q. Did Oollins call for a marriage license?
“A. Yes, sir; he asked Mr. Oollins to issue it.
Q. At the time Mr. Gosset was issuing the license was there any trouble between Oollins and you?
“ A. No, sir; I did not go into the court house until afterward.”

Another witness of the plaintiff states that after the parties had assembled at the place where the wedding was to take place “ the lady walked in and sat down, and nobody said a word for perhaps half a minute. Then Mr. Wasey motioned to Ben (the plaintiff) to know if that was the lady, and he said, or motioned, that it was. Then Wasey told them to get up and join hands and go through the ceremony.” That he does not think anything at all was said after the ceremony.”

That immediately after the ceremony the plaintiff accompanied witness and others down town; and if any conversation took place after the ceremony he did not hear it.

On cross-examination the following occurred, viz.:

Q,. You say you were present at that marriage — did plaintiff answer any of the questions put to him during the ceremony by Mr. Wasey?
" A. Yes, sir.
“ Q. Answer them without any objections?
“ A. He simply said ‘ I do when asked if he would take the lady for his wife. He did not state any objections during the ceremony.”

Another witness made a statement similar to that of the first one interrogated, and confirmed his testimony to the effect that plaintiff professed a willingness to do what was right by the girl. Aside from the testimony we have quoted, there are a great many details of similar character and import; and all of them taken together have given us the impression that, originally, it was neither the purpose or expectation of the plaintiff to marry the defendant. But the relations of the defendant insisted upon the plaintiff marrying the girl, believing that he had seduced and ruined her; and that to marry her was his duty under the circumstances. That upon due consideration of the pressure which was brought to bear upon him, and of his duty to repair a wrong he had confessedly done the girl, he yielded a reluctant and passive con-ent to the performance of a marriage ceremony. We are of opinion that he has not presented a case which entitles him to relief.

Judgment affirmed.


author: Miller, J.

text:
    No. 12,660.
    Carlton N. Ogden, Husband, vs. Lynda Hebert, Wife.
    The separation from bed and board preliminary under our law of the decree dissolving the marriage can not be based on the mere general statement of witnesses that the defendant spouse has ill treated the other, or that their living together is insupportable. It is for the court, on proof of the acts or conduct of the defendant spouse constituting the alleged ill treatment, to determine whether the cause for the separation exists.
    Want of congeniality of the spouses is not a cause for separation from bed and board or divorce. The law supposes that with proper efforts of husband and wife the harmony appropriate to that relation can be secured.

      APPEAL from the Eleventh Judicial District Oourt for the Parish of St. Landry. Dupré, J.

      John N. Ogden for Plaintiff, Appellant.
    Submitted on briefs December 14, 1897.
    Opinion handed down December 28, 1897.
   'The opinion of the court was delivered by

Miller, J.

The plaintiff appeals from the judgment dismissing his demand for a separation from bed and board from his wife.

The petition alleges “ the dispositions of plaintiff and his wife to be not congenial;” that their living together is insupportable; that her ill treatment of plaintiff is partly manifested by her submission to the control of her relatives, and that she thus ignores the marital deference and authority.

The testimony to support the demand is of the same general character as the petitioner’s allegations, and the witnesses are the father and brother-in-law of the defendant and the parents of the plaintiff. The statements of the witnesses are in effect that the dispositions of the spouses are not congenial, and as a result their living together is insupportable; that the wife has ill treated the husband, and that this perpetual ill treatment has caused their separation, and all the witnesses announce they are satisfied the spouses can not live together. The service of the petition was accepted. No answer was filed. There seems to have been no cross-examination of the witnesses and there has been no appearance on behalf of the wife in this court.

If the causes for the separation are alleged and proved, the absence of any opposition by the defendant will not in the least affect the validity of the judgment. But as marriage can not be dissolved by consent, it is especially obligatory on courts in a case like this, when no defence is made, to exact proof of the causes for the separation. Mere want of congeniality of husband and wife is not among these eases specified in the Code to authorize the judgment of separation (Oivil Code, Art. 188). Nor in our jurisprudence. The contract the Code declares is designed to endure till the death of one of the spouses, and the law supposes their mutual efforts will produce the harmony that should exist be - tween man and wife. Hence in the causes for separation the prominent ground of the petition finds no place and can exert no influence unless it leads to the grievances for which the Code declares the contract of marriage may be dissolved (Code, Art. 138).

Apart from the alleged dissimilarity of disposition of the spouses we have the general allegation of the ill treatment of the husband. The adequacy of this alleged cause can only be ascertained by the specification and proof of the acts or conduct of the wife. The general statement of the witnesses of all ill treatment announces merely the conclusion without disclosing the basis on which that conclusion rests. There must be allegation and proof of the facts constituting the ill treatment to authorize the decree dissolving the marriage. We have besides the expression of opinion from the witnesses that the spouses can not live together as man and wife. But that question is for the courts, not for the witnesses. In an early case affirming the necessity for proof of the cause for the separation, in rejecting the admission of the spouse as testimony t the citation from Pothier is introduced in the decision, that the judgment must rest on la grande eonnaissanee de cause, and in the same opinion the court declares the facts must be shown to authorize the judicial dissolution of the marriage tie. Harman vs. McLelland, 16 La., p. 26.

It is urged that in suits for separation from bed and board the testimony required is less stringent than that exacted in suits for divorce. The law will grant a divorce in the first instance for grave causes. Amendment acts 1877, No. 122. For causes less serious the law supposes a reconciliation possible, and to afford that opportunity allows a year to elapse before granting a divorce, and then requires proof of no reconciliation. 0. 0., Acts 139-162. The decree for divorce when there is no reconciliation is the sequel of the decree for separation. The policy of the law that the marriage can not be dissolved without allegation and proof of one or more of the causes specified by the Code is more imperative in enacting proof for the cause for separation because the final decree for divorce without any such proof follows the preliminary judgment of separation.

In our opinion the lower court properly dismissed the suit, and the decision of the lower court is affirmed.


author: Nicholls, C. J.

text:
    No. 12,673.
    State ex rel. Joseph Alcide Babin vs. Hon. Felix Voorhies, Judge.
    When an inferior court, acting within what it claims to be its exclusive jurisdiction. in the enforcement and ascertainment of rights of litigants before it, finds itself paralyzed in its action by writs of certiorari or prohibition from a superior court based on a claim of the latter that its appellate jurisdiction extended over it touching the matters before it, and when such inferior court, through its judge, is alone made party defendant to the writs, the judge of such court is justified and authorized in calling to the judicial attention of the Supreme Court the facts and issues raised, to the end that the latter may take such action in the premises as will, while safeguarding the rights of private litigants, insure the performance of their respective duties by the different judicial tribunals of the State, and the observance by them of the limitations upon their respective powers.
    The Supreme Court has repeatedly exercised its powers over the manner of executing judgments which it had passed on upon appeal and of seeing that their provisions were carried out.
    District courts have power to send writs of certiorari and prohibition to justices of the peace in certain classes of cases, and when their jurisdiction to that end has been invoked In a particular case as being one of that character, they are entitled to issue tentative writs and to primarily determ ne whether their jurisdiction legally extends to the ultimate affording of the relief asked.
    Justices of the peace ordered by such writs to send up their records for examination should obey the order.
    QN APPLICATION for Writs of Certiorari and Prohibition.

      Foster & Broussard and J. L. Haase for Relator.

      Andrew Thorpe and T. H. Thorpe for Respondent.
    Submitted on briefs November 30, 1897.
    Opinion handed down December 28, 1897.
    Application fob Wbits of Oebtiobabi and Pbohibition.
    The relator is a justice of the peace in the parish of Iberia, in whose court R. F. and J. 0. Broussard instituted a suit against and obtained judgment against Adrien Gonsoulin for the sum of seventy-six dollars. Defendant having appealed to the District Court, that court rendered a judgment in the following words: *■ Reserving to plaintiffs their right of action in law, it is ordered, adjudged and decreed that the judgment of the lower court be avoided, reversed and set aside at plaintiffs’ costs, and that the judgment be remanded to the lower court for execution.”
    On application for a new trial, or rehearing, this judgment was modified as follows: “The court is of the opinion that its former decree is too sweeping. While still adhering to its opinion, regarding the liability of Adrien Gonsoulin, the court is of the opinion that justice demands that this case be remanded to the lower court to allow plaintiffs to make the cane growers who refuse to pay the two per cent, parties to this suit, contradictorily with whom these proceedings must be carried on. The court, therefore, grants the new trial for the purpose merely of remanding the case to the lower court for further proceedings.
    On the return of the case to the justice’s court, the plaintiffs dismissed the suit, and immediately instituted one hundred and forty-three suits before the same justice of the peace, in each of which Adrien Gonsoulin was made a co-defendant with one of the “ cane growers ” ordered by the District Court to be made parties to the remanded suit.
    The amount in controversy in each of these suits was below the amount which was necessary to authorize any judgment which might be rendered therein to be appealed to the District Court. In each of the suits an absolute judgment for money was rendered against the defendants.
    Gonsoulin applied to the District Court for writs of certiorari and prohibition, which were ordered to be, and were, in fact, issued and served. In his petition for the writs, after reciting the facts above stated, he averred that disregarding the positive mandate of the District Court, R. F. & J. O. Broussard had sued and obtained judgments against him in the said one hundred and forty-three suits, involving the same matters passed upon by the District Court. That in one of these suits, viz.: Suit No. 90, on the docket of the justice of the peace, the plaintiff had in order to satisfy the judgment therein, which was for thirty-five cents, seized, under a writ of -fieri facias, a mule belonging to relator worth one hundred dollars.
    That to protect himself he enjoined such seizure, which injunction, upon trial before the said justice of the peace, was dissolved.
    That by the judgment of the District Court on appeal, it was. decreed “ that no personal judgment could be rendered against him” (Gonsoulin) and the ease was remanded to the justice’s court solely for the purpose of making sundry cane growers parties to plaintiffs’ demand, with whom the (plaintiffs) therein were ordered to try contradictorily the issue involved in their claim.
    That the suits, judgment, seizure and all the proceedings before the justice of the peace were null, void and of no effect and in defiance of a mandate issued out of a superior court. That the causes of action and demands made therein were res judicata, and a further “ instance ” would work to him irreparable injury.
    It was in view of these premises that writs of prohibition were applied for, to be directed to the justice of the peace, prohibiting, commanding and directing him to desist and refrain from interfering in any manner with his (G-onsoulin’s) property in matters growing out of the controversies above related, and commanding him to send up all the records pertaining to such suits and controversies, and to entertain no. further jurisdiction until so ordered by the District Court. He prayed for all such further orders and decrees as the nature of the case might require and for general relief.
    The justice of the peace filed an exception to the proceedings to the fr-ffect that the District Court was without power under the Constitution of the State to try the writs, and reserviug his right to file an answer and to appeal directly to the Supreme Court under the Constitution in the event of the overruling of the exception, he prayed that the writs be dismissed and he be allowed to proceed in the eases mentioned in the petition for the writs without further interference from that court.
    The respondent judge assigning as reason that the law authorized no such pleadings; that Art. 861 of the Code of Practice required that the inferior judge to whom this “ mandate” (of certiorari) was directed should send to the superior court a certified copy of the record called for, which copy should be sealed with the seal of the court if it had one; that Arts. 864 and 865, Code of.Practice, provided for the manner of proceedings in such eases, assigning as reason that it was on examinations of the papers ordered to be produced that the court could decide as to the legality or irregularity of the proceedings complained of, or whether it had jurisdiction of the question involved, or whether the writ, must be made absolute or vacated; that the questions raised in this exception could only be reviewed by the District Court, after the respondent should have complied with the order of court, ordered that respondent comply with the orders issued for the District Court, under the writs of cer-tiorari, and that the hearing of the same be fixed for the 16th of November, the second day of the next term of the District Court at New Iberia, Louisiana.
    On the day assigned the justice, through his counsel, alleged that, on the return day of the writs, he had offered in court and filed the books of his office appertaining in the cases referred to, and at the same time protested against any decision on the merits of the writs, pending the decision on exception, to the jurisdiction, which he had then filed, he averred that he again produced said books of his office, and again protested against any decision on the merits of the writs, until the matter was taken to the Supreme Court to have it pass upon the question of the jurisdiction of the District Court in the matter, because if he allowed the case to be proceeded with further, he would lose his rights in the premises; that the District Court would exceed its jurisdiction in the matter as defined by the Constitution of the State, if it proceeded to determine upon the merits of the writs herein.
    He renewed his protest against any further action in the proceedings by the District Court, and served notice that he would apply for writs of certiorari and prohibition before the Supreme Court to enforce his rights in the premises.
    Babin, the justice of the peace, followed up this protest by an application to the Supreme Court for writs of certiorari and prohibition on the grounds stated therein.
    The statement of facts set forth in this last application does not materially vary from the statement made by Gonsoulin in his petition to the District Court.
    Relator alleges that judgment was rendered against the defendants in solido in the one hundred and forty-three cases referred to, and that in none of the judgments was there a sufficient amount involved to justify an appeal to the District Court. That Gonsoulin had so alleged in his pleadings.
    Relator prayed that writs of prohibition and certiorari issue directed to the judge of the Nineteenth Judicial District Court “ prohibiting, commanding and directing him to desist and refrain from interfering in any manner with relator in enforcing the collection of the said judgments rendered in his court, and commanding him to send to the Supreme Oourb all the records pertaining to the writs, and to entertain no further jurisdiction until so ordered by that court.
    Upon the filing of relator’s petition alternative writs issued, and the District Judge made return as follows:
    That in obedience to the mandate of the Supreme Oourb the respondent filed and produced copies of the proceedings had before him in the matter of State ex rel. Gonsoulin vs. J. A. Babin, Justice of the Peace, et al., the petition of Gonsoulin for writs of eertiorari, etc., the order of the court — the exceptions filed by the respondent Babin, and the written reasons of respondent when overruling the exceptions in the judgments in case of Broussard vs. Gonsoulin.
    That these were the only proceedings which were had before him, inasmuch as the said relator, Babin, had nob complied with the order of court when he notified respondent of his intention to apply to this court for writs of eertiorari, etc.
    That in December, 1896, the case of Broussard vs. Gonsoulin came on appeal betore his court' from the Third Justice Oourb, relator, Babin, being the judge of that court.
    That the judgment in that case was reversed; that the District Court decreed that the appellant, Gonsoulin, was not personally, liable, being a mere stakeholder of funds belonging to a number of-cane growers of Iberia parish, who were, in fact and in reality, the only parties interested in the matters involved in said suit. That the case was remanded to the lower court in order that these cane growers alone be made parties to the suit, in order that the whole litigation might be settled by a single judgment.
    That on the third of May, 1897, Adrien Gonsoulin filed a complaint-in his court, in which he set forth that the relator in this case, J. A. Babin, disregarding the decree of the Nineteenth Judicial District Oourb had parceled out the case thus remanded to his court for specified purposes recited as above into one hundred and forty-three cases in order to divest the District Oourt of jurisdiction, and had rendered judgment against him personally in all these cases when the District Oourb had decreed (the decree being a finality) that he was not personally bound to Broussard et «is., and he prayed for writs of eertiorari, etc.
    That the writs were issued and made returnable on the first day of the September term. That on the return day thereof, respondent Babin, instead of complying with the order, filed exceptions, which were overruled.
    That up to that date he had not complied with the order.
    That respondent had been informed of these facts concerning the parceling out of the original suit of Broussard vs. Gonsoulin, into one hundred and forty-three eases, by the sworn petition of Adrien Gonsoulin.
    That he had not, even at that hour, assumed jurisdiction over this matter, as the ruling on the exceptions would clearly demonstrate.
    That while it was true that writs of certiorari and prohibition can issue only from the Supreme Court in the exercise of its supervisory powers over inferior courts in cases when powers not granted have been usurped by those courts; or when they refuse to perform some duty plainly imposed by law, and which they have no discretion to withhold; or where there is an absence of other adequate remedy by appeal or otherwise, it is also true that the District Court has the power to issue those writs in aid of its appellate jurisdiction and to enforce its decrees. C. P. 130, 131, 877.
    That Arts. 855 and 860 of the Code of Practice were not repealed by Art. 90 of the Constitution; nor did he think that this constitutional provision was meant to infringe on the right and powers of courts of justice to enforce obedience to their decrees and to elimi-uate the powers necessary for the exercise of their respective jurisdictions, even though the same should be not expressly given by law. O. P. 877.
    That if this power were denied to the court over which fie presided, as judge he would be unable to uphold his jurisdiction when interests of the highest magnitude were to be settled by his decisions. That the exercise of this power would be neutralized, unless respondent could (as in this instance) order the judge of the lower court, who is charged with treating with such contempt the mandates and decrees of respondent’s court, to produce his records that the matter be examined into and sifted. How (he asked) could this be done unless by rule for contempt or by writs of certiorari and prohibition?
    That the jurisdiction of the court of which he was the presiding judge had certainly attached in the case of Broussard vs. Gonsoulin.
    That a decree had been rendered in that case in favor of Gon-soulin, exonerating him from all personal liability toward Broussard. That it was unquestionable that that ease was remanded to the court presided over by relator, Babin, for the sole purpose of making parties to the suit the very same parties who had since been made defendants in the one hundred and forty-three suits into which the original suit was parceled out to divest the District Oourt of its jurisdiction.
    That if the sworn'allegations of Gonsoulin were true, and so far he stood uncontradieted, then the disregard of relator, Babin, to the mandate of the District Oourt; his contempt of the mandate of the court shown by doing the very reverse of which he was ordered to do; his rendering personal judgments against Gonsoulin when the District Oourt had decreed that he was not personally bound; all of' these illegal and arbitrary acts of the relator, Babin, could certainly not divest the District Oourt of its appellate jurisdiction.
    That he had overruled the exceptions of the relator, Babin, because Art. 861 of the Oode of Practice admitted of no exception, and because respondent could not pass on the question of jurisdiction without an inspection of. the records of the justice’s court. And because, if the averments of Gonsoulin were true, grave injustice had been done, not only to Gonsoulin, who would remain without redress (should the court make the writs absolute), but also to one hundred and forty-three parties who would be unnecessarily and wantonly mulcted in heavy costs, without being able to appeal; and because the decree of the court over which respondent presided would have been most flagrantly violated and spurned by the relator without the means left to the court to have its authority respected.
    That the relator disclosed in himself no interest to sue out the writs of certiorari and prohibition.
    That from the nature of the cause he could have no interest therein; he being neither plaintiff nor defendant in the suits before-him, and neither his right to his office, or the emoluments thereof' being involved.
   The opinion of the court was delivered by

Nicholls, C. J.

The question which meets us at the threshold is whether the relator occupies such a position and has such a legal interest in the matter submitted to us herein as to ask a decision upon the same at our hands and to call into exercise the supervisory powers conferred upon us by Article 90 of the Constitution.

It is claimed “that he had no legal personal interest in the original suit of R. F. & J. C. Broussard vs. Adrien Gonsoulin instituted in his court, and that he has none now in the one hundred and forty - three eases which were brought by those same plaintiffs [after the remanding of the original suit and its continuance] against Gonsoulin and the different cane growers interested in the funds in his hands.

“ That the effect of the writs of certiorari and prohibition which issued from the District Oourt though directed to the justice of the peace was to tie up the plaintiffs in the one hundred and forty-three suits in the enforcement of their rights — that they were the real parties in interest and it was for them and not the present relator to complain if their rights were illegally interfered with; that he is improperly championing their rights of third parties.” It is certainly a very unusual proceeding for the judge of a court whose jurisdiction and authority in certain proceedings before him have been called in question by writs of certiorari and prohibition issuing from a court claiming to have appellate jurisdiction over him in the matters complained of in the writs, to have recourse himself to the Supreme Oourt for relief from such writs by counter writs of certio-rari and prohibition from the latter court. Ordinarily the parties to the suit or suits in which the proceedings are stayed take action themselves.

The reasons assigned by the justice for his course is “ that he is interested officially as a State officer in having his legal jurisdiction, when illegally interfered with, maintained; that the method of proceeding resorted to will avoid the bringing of a multiplicity of suits, and that he has a personal interest in the matter of the costs in the various suits in his court.” Article 90 of the Constitution declares that “ the Supreme Oourt shall have control and general supervision over all inferior courts. They shall have power to issue writs of certiorari, prohibition, mandamus, quo warranto, and other remedial wrjts.”

The grant of power for the purposes indicated, could scarcely have been conveyed in broader or more sweeping language. Excluding the provisions of the Constitution relative to the original jurisdiction of the Supreme Oourt, and those limiting its appellate jurisdiction, the right and power of supervision over other courts comes to this court untrameled by restrictions.

It is our province and duty under this delegation of authority to prevent the clashing of courts touching their respective jurisdiction by settling disputed questions in respect thereto, and to keep the different courts though acting inside of their general jurisdiction from acting outside or beyond the law.

The circumstances or conditions under which our powers in those matters should be called into exercise were not fixed by the Constitution, but left to be determined by this court in such manner as would best, in its opinion, subserve the object and purposes of the grant.

We are of the opinion that when an inferior court, acting within what it claims to be its exclusive jurisdiction in the enforcement and ascertainment of rights of litigants before it, finds itself paralyzed in its action by writs of certiorari or prohibition from a superior court based on the claim of the latter that it has appellate or supervisory jurisdiction over it touching the matters before it, and when as in this instance it through its judge is alone made a party defendant in the writs, itis justified and authorized in calling to the judicial attention of this court the facts and the issues raised, to the end that it take such action in the premises as will, while safeguarding the rights of private litigants, ensure the performance of their respective duties by the different judicial tribunals of the State and the observance by them of the limitations upon their respective powers. Had the relator in this case made answer to the writs of certiorari and prohibition which issued to him from the District Court, but none the less the writs had been made absolute, and had the matter been susceptible of an appeal [as seems in a qualified degree to be the practice in California (26 Pac.)], we are of the opinion that the present relator as the party and the sole party to the record would have had sufficient legal interest in the subject-matter to have taken such appeal. Having been called into court as a defendant the party who called him in could scarcely be heard to dispute or deny his power to defend. His interest ,to “ appeal ” would be neither greater nor less than his interest to have tested through the present proceeding the matter submitted to us. The issues before the court would be identical though presented in a different form. If the justice of the peace asserting his right of exclusive jurisdiction had ignored the writs (as it was intimated in the case of State ex rel. Hirsch vs. Judge, 39 An. 98, he would be authorized to do if his pretensions were well founded), had been declared in contempt for so doing by the superior court and sentenced to be punished he would have been authorized, in his own name, to have the issues raised tested by this court, though collaterally. Situated as is this court under the Constitution, we see no reason for forcing matters to take such a form to obtain a judicial decision.

The status of the courts with respect to writs of certiorari and prohibition is not identical with that which they occupy under writs of injunction.

The latter writ runs to the parties litigant, while the former are directed against the courts themselves.

We appreciate that the relator does not stand charged with representing directly, in his official capacity, the private rights of the plaintiffs in the one hundred and forty-three cases which were instituted in his court, and that he may not as fully and fairly present as they might do themselves their legal rights, and that any judgment we might render adverse to them might not in their absence ■conclude them, but the conclusions we have reached in this particular case obviate those objections on the present occasion. We think we have a sufficient basis on which to rest judicial notice of and on which take judicial action upon relator’s allegations and prayer.

We understand the contention of the District Judge to be that the matter in dispute in the original suit of R. F. and J. C. Broussard brought in relator’s court, being seventy-seven dollars, brought it within the appellate jurisdiction of the District Oourt. That when there on appeal it was Anally decided, so far as Gonsouiin was concerned, in his favor. That the latter was entitled in the justice’s court to the benefit of that judgment, and the plea of res judicata, whether set up in the original suit after it had been remanded, or in any new suit which might be subsequently instituted in that court on the same claim after the plaintiffs had on the remanding of the cause to .the justice’s court discontinued the first suit. That the District Oourt having rendered, on appeal, the final decision which it had in Gonsoulin’s favor, its appellate jurisdiction with respect thereto did not terminate with the rendition of the same, but continued over it for supervisory purposes until its final execution. That the justice of the peace, in view of that judgment, was not authorized nor justified in allowing the plaintiffs to split up the same claim from which Gonsouiin had been declared not liable by the judgment of the District Oourt into one hundred and forty-three different claims against him and to render itself that number of personal judgments against him aggregating precisely the original amount demanded of him. That this was by indirection to destroy the judgment of the District Oourt in Gonsoulin’s favor and to defy the authority of the District Oourt.

He maintains that under Arts. 130, 617 et seq. and 629 of the Code of Practice the “appellate” jurisdiction of the District Oourt remains in full force over the judgment rendered in favor of Gonsoulin so as to see that it is not violated or disregarded though the powers to be exerted in that respect might be “ supervisory ” as to form. He maintains that the District Oourt is vested with power and authority, in aid of its appellate jurisdiction, to issue writs of certiorari and prohibition to justices of the peace, and that his action in the premises was in aid of such jurisdiction.

He denies that he has ever passed upon the merits of Gonsoulin’s application for relief through the writs which had issued, and asserts that the writs had issued simply to examine into with a view of determining after examination and return what his powers in the particular case under its circumstances would be.

He charges that the justice of the peace though ordered to produce his records had failed to do so, and asserts that matters are still in abeyance in and undecided by the District Oourt as to whether the writs could and should be made absolute or not.

Relator asserts as a fact that he had obeyed the orders of the District Oourt and produced his records as directed — that he had excepted to the jurisdiction of the District Oourt in the premises — that his exception had been overruled, and that he had done everything on his part required by the court as a condition precedent to invoking its supervisory powers.

Relator may have taken the records which the District Court ordered to be produced to the court house, but it is evident, we think, that he never delivered them to the clerk of the court or submitted them for examination as required to do. On the contrary he met the proceedings directed against him by an exception calling into question the right and power of the District Court “ to try the writs.” He made no return or answer to the writs, but simply reserved his right to file an answer should his exception be overruled. Instead of doing so, when overruled, he instituted the present proceeding in this court, the very object of which, it seems to us, is to justify him in declining to submit his records to the District Court. His records come to us not from the District Court, but through certified copies attached to relator’s application. The District Court has not as yet made the writs absolute, as having been issued in a case legally calling for such action from it. It is true the pleadings filed here by the District Judge indicate what probably would have been its ruling had relator complied with the order to produce his records, but the fact remains that no final action has been taken by that court on Gonsoulin’s application for relief. Non constat that the District Court might not have reached (and may not yet reach) a different conclusion had matters been presented to the District Judge in a different manner, and with written reasons assigned and authorities cited. Relator has evidently construed the decisions of this court in the cases of State ex rel. Gas Light Company vs. Judge, 37 An. 287; State ex rel. Hirsch vs. Judge, 39 An. 98, and State ex rel. Sweeney vs. Judge, 39 An. 621, to mean that in no class of cases and under no circumstances are District Courts vested with authority to issue writs of certiorari and prohibition to justices of the peace, but that the Supreme Court had exclusive authority to pass upon all disputed questions between the District Courts and justices of the peace, for which such writs are to be availed of as the proper method for relief.

The decisions in question affirm the power of this court to issue such writs under its supervisory powers, whether cases be appealable or wow-appealable, and that that power is exclusive in a certain class of cases or under certain circumstances, but they did not intend to declare that the powers granted by Arts. 130, 617, et seq., and 629 of the Code of Practice did not refer to Districts Courts in their relations with the proceedings of justices in proper cases. Art. 130 of the Code of Practice declares that all judges possess the powers necessary for the exercise of their respective jurisdictions though the same be not expressly given by law, while Arts. 617, 618, 629 are to the effect that the execution of judgments belongs to the courts by which the cases have been tried in the first instance, whether such judgments have been affirmed or reversed on appeal. Therefore the Court of Appeals whether it affirm or reverse the judgment, or whether it has rendered another definitive judgment in the cause, must send the same to the inferior court in order that it may be •executed. It is for the court, whether appellate or inferior, which has rendered the judgment to take cognizance of the manner of the execution when the proper 'manner of executing it is to be determined.”

This court has repeatedly exercised its powers over the manner of executing the judgments which it had passed on upon appeal and of seeing that the provisions were carried into effect. State ex rel. Construction Company vs. Tax Collector, 48 An. 32.

We are of the opinion that such action, though taken after a judgment has been rendered on appeal, may well be referred to as “matter connected with appellate jurisdiction having a tendency to aid it or make it effectual.” State of Louisiana vs. Judge of the First District, 19 La. 180.

In State ex rel. Hirsch vs. Judge, 39 An. 98, this court said:

“Article 90 of the present Constitution vests this court with control and general supervision over all inferior courts, and with power to issue writs of certiorari, prohibition, mandamus, quo warranto and other remedial writs. The Constitution does not confer similar supervisory jurisdiction on any other court, whether it be a District Court or a Circuit Court, although it vests the other appellate courts with the power tó issue like writs in aid of their appellate jurisdiction. These courts have, therefore, no power to issue any of those writs when notin aid of their appellate jurisdiction.”

The District Court having the power to supervise its own judgments, and the case of F. F. & J. C. Broussard vs. Adrien Gonsoulin having been before it, and a judgment therein rendered, we think it was within the competency of that court on the application to it of the defendant Gonsoulin, declaring that the judgment in question was being executed in a manner different from its terms, or that it was being actively violated by the justice’s court, where it originated, and to which it was remanded, to order the justice of the court to send up his records for examination with a view of ascertaining what the legal situation was, to the end that such action should be taken as the law and the facts of the case authorized, and that it was the duty of the justice to comply with that order. Whether the District Court would be justified or warranted, after examination, in making writs of certiorari or prohibition, which it •caused to issue to the justice, peremptory in a particular case is a different question from whether it had the jurisdiction to simply make inquiry through such writs into the subject matters complained of. Jurisdiction is the power to judge — it includes the power to judge wrongly as well as rightly.

We do not think relator warranted in asking relief at our hands in the present situation of affairs. The District Oourt having power to-send writs of certiorari and prohibition to justices of the peace in a certain class of cases, when its jurisdiction to that end has been invoked in a particular case as being one of that character they are-entitled to issue tentative writs and to primarily determine whether that jurisdiction legally extends to the ultimate affording of the relief asked. Relator had the right to raise the issue he did as to the power of the District Oourt, and to have that court pass on that exception, but none the less he should have produced and submitted his records as ordered and made his return or answer, and enabled the issues raised to be determined.

Should the justice reach an illegal conclusion as to his powers and duties in the particular ease it will be time enough to have recourse to this court (State ex rel. Kirsch vs. Judge, 45 An. 1206). It may well be, as we have said, that the District Oourt, on examination, may reach the conclusion that though he may have intended on appeal to render a final judgment in favor of the defendant, Gon-soulin, that intention was not carried out in the decretal part of his-judgment; that the plaintiffs had the right to discontinue the suit after it was remanded, and that when afterward the one hundred and forty-three suits, to which reference has been made, were insti-ituted, matters were not then in such a condition as to authorize any other than the Supreme Oourt to take adverse action in the premises.

It has not been claimed on behalf of the cane growers made co-defendants with Gonsoulin in the different suits that the proceedings against them were illegal. The controversy is limited to the proceedings against Gonsoulin. In order that all parties concerned be heard, we think R. P. & J. C. Broussard, the plaintiffs in the suits, should be made parties to the proceedings in the District Oourt. After full consideration, we are of the opinion that the orders-heretofore given here should be set aside, and that relator’s application be denied, but without prejudice, and it is so ordered and decreed.

Mr. Justice Miller — I dissent.


text:
    No. 12,659.
    Thomas Hansen & Son vs. Their Creditors.
    The agreement as to payment o£ the tees of the attorney of the mortgage creditor-may be gathered from the act of mortgage and the mortgage note.
    The stipulation that the fees of the attorneys of the mortgage creditors shall be-due in ease the note after maturity is put into the hands of the attorney, is valid.
    APPEAL from the Twelfth Judicial District Court for the Parish y of Calcasieu. Bead, J.

      G. D. Moss and Edw. L. Wells for Mrs. J. Muller Marx and Mrs-Josma M. Oordsen, Appellants. ■

      Sehwing & Moore for Opponent, Appellee.
    Argued and submitted December 16, 1897.
    Opinion handed down December 28, 1897.
   The opinion of the court was delivered by

Miller, J.

This appeal is by the mortgage creditors placed on the-syndic’s account for their debts and attorney’s fees, from the judgment maintaining the opposition to the fees filed by the second mortgage creditor of the insolvents.

The acts of mortgage stipulate the mortgage is given to secure the debt, interest and the attorney’s fees of the mortgage creditor, and in the notes identified with the act there is the recital in case the notes are placed in the attorney’s hands for collection, the fees fixed at ten per cent, are to be paid. These fees are singly and in the aggregate below the amount necessary to give the court jurisdiction, of appeals. The motion to dismiss the appeals is on the ground that the fees are under two thousand dollars. The proceeds in the-hands of the syndic it is conceded exceed two thousand dollars, and that amount is the test of our jurisdiction.

It is claimed that no attorney’s fees should be allowed, because suits to foreclose the mortgages were not actually brought. But. besides the stipulation in the act for the payment of the fees óf the-attorney of the mortgage creditor, there is the agreement incorporated in the notes referred to and for all practical purposes part of the act that the fees shall be paid in case the notes are placed in the hands of the attorney for suit. The proof is that these notes after their maturity were placed in the attorney’s hands for suit, and foreclosures were deferred only because of the debtor’s appeal for indulgence. His cession of property afterward became necessary, the notes being still in the hands of the attorneys. In our opinion the fees were due and secured by the mortgage.

The amount of these fees was placed on the syndic’s account as accruing to the mortgage creditors as part of their debt, and the appeal from the judgment disallowing the fees by the creditors it is urged should be by the attorneys, one of whom is attorney for the syndic. The creditors were liable to the attorney for these "fees and we think had the right to appeal from the judgment.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed and that the oppositions to the fees of the attorneys of the mortgage creditors be dismissed, the costs to be paid by the opponent.