text:
    No. -
    First Circuit Appeal
    MRS. JOSEPHINE E. BRUGIER v. TODD BROS. AUTO COMPANY
    (June 12, 1925, Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Appeal—Par. 625, 626.
    The finding of the trial judge as to the credibility of the witnesses on matters of fact, in this case the negligence of the employee of the defendant and lack of contributory negligence of the plaintiff, being clearly correct, is affirmed.

      2. Louisiana Digest — Evidence—Par. 343.
    A discrepancy in the amount of damages demanded by the plaintiff some time prior to the filing of suit and the amount demanded in the petition will hot affect the credibility of the plaintiff litigant as a witness.
    3. Louisiana Digest — Damages—Par. 104, 106.
    One hundred dollars for nervous shock which was not severe and $200 for damages to automobile and otherwise is considered sufficient quantum of damages.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Judicial District Court, Parish of St. Tammany, Hon. Prentiss B. Carter, Judge.
    This is a suit for damages for personal injuries and property damages to automobile arising out of collision between a bus and an automobile.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Miller & Miller, of Bogalusa, attorneys for plaintiff, appellee.
    Harvey Ellis, of Covington, attorney for defendant, appellant.
   MOUTON, J.

Plaintiff sues defendant company for damages alleged to have been caused by a bus belonging to defendant running into the rear end of a Buick auto which she was, on December 18, 1923, driving from Covington to Mandeville. The proof shows that the bus was going at the same time in the same direction plaintiff was traveling, and that it collided with the auto either on the rear end or side. Claud Todd was driving the bus for defendant company. . .

The collision occurred near the bridge on Ponchatoula creek. Plaintiff says that on approaching the bridge she saw a Ford car, with the top thrown back and sticking out on the side, coming in her direction, and that to avoid this piece which was sticking out of the Ford from scratching her auto, she slowed down the speed at which she was moving to ten or twelve miles an hour so as to .let the “Ford get off the bridge before she got on”. She says she was on the right-hand side of the road, and that all of a sudden something struck her car, that in a few minutes she saw the bus of defendant go by, and she then realized that her auto had been hit by the bus. She says the negro who was coming in the Ford from a cross the bridge had passed her by that time; that he came up to where she was and asked if. she needed any help, and that Claud Todd, the driver of the bus, also came up; that upon asking the negro where he lived, and what was his name, which she did not catch, he answered he .was afraid of courts; that Todd then said: “Beat it, negro,” and made him leave. She says she then said to Todd: “Look at the damages you have done,” and that he said: “It was better for me to have struck you on the side, otherwise you would not be here to tell about it, and that, anyway, women have no business to drive automobiles”. She says Todd said: “Why did you stop”; that she answered: “I did not stop but had to slow down to avoid the danger” she saw ahead of her, that Todd walked towards his bus which was on the other side of the bridge, and left her in the road, unassisted. Todd denies he told the negro to leave or that he said women had no business driving cars, as was testified to by Mrs. Brugier. The fact is that he impliedly denies all the statements made by plaintiff as to what he had told her on that occasion, as above stated. He also gives quite a different version from that of the plaintiff as to how the collision actually occurred. His testimony is that on his way from Covington plaintiff passed ahead of the bus at Ponchatoula orange orchard; that he allowed her to pass ahead as he knew he could not keep up with a Buick car, and that after she had passed the bus she slackened her speed to about fifteen miles an hour. He explains such a speed as that would not allow him to keep up with the schedule required of him to make connection with the trains, and that he blew his horn to have her clear the way. He says she knew he was coming behind her, and that she was keeping the highway blocked. Mrs. Brugier admits she passed the bus at the garage in Covington but denies she went ahead of it at the orange orchard. She denies positively and absolutely that she blocked the road, and says that she always kept her car on the right side of the road. She says she had at different times heard the horn of the bus, which is a loud one, and that if he had tried to signal her there was no reason why she should not have heard it. It is possible that Mrs. Brugier deliberately blocked the highway to prevent the bus from proceeding at its usual speed, but it seems to us that this is quite improbable, as we cannot see what, motive could have prompted her to have behaved in a manner so unreasonable and unjustifiable.

Todd says plaintiff suddenly stopped her car without giving any warning whatever by a movement of the hand or otherwise. This sudden stop, he explained, was not and could not he expected; that his bus was then at about 75 feet from plaintiff’s auto; that he could not stop the bus in less than 100 feet, an'd consequently did all in his power to avoid the collision, but'without avail, and that the step protruding from the side of the bus in the rear struck the hind part or side of the auto. . He says her car was then “kinder across the road on the left-hand side”. In giving a recital of the occurrence, he said plaintiff had no reason to stop and that there was nothing sticking out over the . Ford that could touch her auto.

It seems to us a little singular that plaintiff should have concocted a story to the effect that the top of the Ford was protruding from its side, and to avoid a contact therewith she had slowed down the speed of her car. It was not necessary for her to have fabricated such a story, as she could have simply said she had slackened her speed as she approached the bridge to allow the Ford to get over it before she undertook to cross the creek. If the negro who was driving the Ford had appeared as a wintess this question would have been in all probability and without trouble solved one way or the other. No doubt, if he had not vanished from the scene immediately upon the appearance of Claud Todd, he would have been summoned by plaintiff, who, it is shown, had. made inquiries as to" his name and his place of domicile, and the truth of the matter would have been reve&ied without the necessity of having to eke it out the best we can from the conflicting- testimony of plaintiff and the driver of the bus. Todd says when plaintiff passed the negroes in the Ford she was hugging the curve and was on the left side of the road. In speaking of these negroes he says: “They were down in the ditch, she was hugging the curve, and they were mighty near in the ditch; that they were actually down mighty near on the edge of the embankment”. Todd was so persistent in showing how plaintiff was attempting to sqeeze the negroes from the left side of the road that counsel for defendant company, thinking that perhaps Todd had overstepped himself, asked him the following questions:

“Q. She was not close up on the left-hand side?
“A. She was close enough to have the gravel but not off on the hank.
“Q. She was not plumb over?
“A. No, sir."

Todd therefore admitted that she was not quite off the bank, and not completely over the east side of the road.

Todd first endeavored to show that plaintiff had actually barred the highway with her auto to prevent -him from running his bus at its customary speed, and that when she reached the bridge she had the rashness to cross the center of the roadway and to thus press the Ford car on the east side almost over the embankment of the highway. The proof shows that plainr tiff had been driving automobiles for some time prior to this accident, and such driving as she is charged with by Todd, could not have been the result of inexperience on her part. It can not be believed that she would have thus acted through a spirit of mere mischief or recklessness, as there is nothing in the record to support such an inference. We have not been favored with any written reasons for the judgment rendered against defendant, but it is fair to presume that the court did not believe the statement given by Todd, and accepted the version of the occurrence as testified to by plaintiff.

In defendant’s brief, counsel says: “It the court believes the testimony of Mrs. Brugier and not that of Todd, then the case would be with plaintiff. This is a correct conclusion, as the solution of the case depends upon the credibility of the witnesses. Doubtless, the District Judge believed Mrs. Brugier, and concluded that she had given a true recital of the occurrence, which shows that she had slowed down the speed of her car before she reached the bridge; that she was on the right side of the road and had left ample room on the left to allow the bus to pass in perfect safety.

It appears that some time prior to the filing of her suit plaintiff made a demand for damages against defendant. Payment was refused. Subsequently she instituted the present suit in which she increased the amount she had originally claimed. Because of this discrepancy between the amounts so demanded, counsel for defendant argues that plaintiff should not be believed as a witness. We do hot think that such a variance in the amount claimed under the circumstances stated should be taken as affecting the credibility of a litigant. It is also pointed out by defendant’s counsel that plaintiff was contradicted in reference to her testimony as to her going and coming from New Orleans in her car and as to the time it was kept in the garage in Slidell. Because of such contradiction counsel contends that plaintiff’s recital of the accident should not be accepted as true. Obviously, the District Court did not take such a view of her testimony, and to which he gave credence in preference to the evidence of the driver of the bus, and held defendant liable in damages. We find no I'eason why we should not believe that Mrs. Brugier told the truth and gave a correct narrative of the accident. It is certainly impossible for us to say that the trial judge has fallen into a manifest error in believing Mrs. Brugier. We would have to reach this conclusion in order to authorize us to reverse the judgment as such is the rule that the Appellate Court must observe, when the solution of the cause depends on the credibility of the witnesses.

The proof shows that the repairs to plaintiff’s auto amounted to $78.15, with the exception of a fender which was returned; that the door of the auto was sprung, thrown out of line, and that, though repaired as well as could be, the auto could not be restored to its original condition. There can be no doubt that plaintiff suffered a nervous shock as the result of this collision, and was also de.prived of the use of her auto for several days.

The lower court allowed her damages in the sum of $530.00.

Her nervous shock was not severe, for which $100.00 is sufficient compensation, and $200.00 for the other damages, we find, to be a fair allowance.

It is therefore ordered and decreed that the judgment be amended by reducing it to the sum of three hundred ($300.00) dollars; and as thus amended it be affirmed, appellee to - pay the cost of appeal, those of the lower court to be paid by defendant.


source: Caselaw Access Project

author: MOUTON, J.

license: Public Domain

text:
    No.-.
    First Circuit Appeal.
    MRS. M. BECKER v. ILLINIOS CENTRAL R. R. CO.
    (June 12, 1925, Opinion and Decree.)
    (June 30, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625, 626.
    The finding of the trial Judge as to the credibility of the witness and the finding on matters of fact; namely, as to the negligence of the agents of the railway company, being clearly correct, is affirmed.
    2. Louisiana Digest — Damages—Par. 104.
    $300 is considered sufficient quantum of damages for a sprained ankle which caused the plaintiff to limp for some time.
    (Civil Code, Art. 2315, Editor’s note.)
    Appeal from the Judicial District Court of Louisiana, Parish of Tangipahoa, Hon. Columbus Reid, Judge.
    This is a suit for damages for personal injuries caused by the falling of the passenger, while alighting from a train. There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    A. L. Ponder, of Amite, attorney for plaintiff, ■ appellee.
    Kemp & Buck, of Amite, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff sues defendant company in damages for injury to her ankle which she alleges was caused by the negligent act of the flagman of said company while she was alighting from one of its passenger trains at Independence, Louisisana, on the 6th day of October, 1922. She testifies that when she got on the last step of the train coming down, she looked towards the flagman and said: “Will you please let me down”, and, that before she had time to step down, the flagman jerked her grip out of her hand, that she then stepped on the stool provided for passengers to alight, and fell down, resulting in the injuries of which she complains.

Jacques Rhoden, a clerk in plaintiff’s store, testifies that he had gone to the depot to meet plaintiff, and saw when the accident occurred. He says, he saw plaintiff bend over to say something to the flagman who was standing with his back to the train, and that the latter without turning his face, reached over, grabbed plaintiff’s suit case, swung it out of her hand, jerked it, and as she tried to regain her balance she stepped on the little stool which fell over, and that plaintiff “liked” to have fallen down. The flagman testifies that he took plaintiff by the arm when she was coming down the steps of the train, treated her courteously and never jerked the grip or suit case from her hand. Lebarron, an employee of defendant, testifies practically to the same effect, Ralph Pin-ton, not connected with defendant company, says he was in the waiting room when the train came in, happened to look out of the window, saw the suit case when it toppled over, and paid no more attention to what occurred. Upon being asked if he had seen' plaintiff when she stepped on the stool, he answered, “I never paid any attention to it.” ' It’ is obvious that such testimony as that of Pintón is of little value to what occurred on that occasion in reference to the accident. The solution of the case must therefore depend on the testimony of the two witnesses for plaintiff and the two for defendant, hereinabove referred to. As their statements are entirely contradictory, a proper decision of the case must rest on the credence to be given to their testimony.

No doubt, the district judge believed the witnesses for the plaintiff and concluded that plaintiff’s grip had been wrenched from her hands by the flagman, thus causing the damages, and that defendant was therefore at fault. We can not say that the judge was wrong in reaching this conclusion, as there are not tacts or circumstances of record to show that he has fallen into an error in reference thereto. Such being the case, this court will not interfere with this finding of fact below. The defendant endeavored to prove that after plaintiff had alighted from the train she had walked to the depot, and later to her home without showing by her walk or demeanor that she had received any injury to her foot. If this contention of defendant had been supported by proof, evidently there would be good ground to presume or infer that plaintiff had in reality suffered no injury and had not been the victim of the accident upon which her demand is grounded. The record is, however, to the contrary, and shows that she was treated by a physician for the injury to her ankle, that it was bandaged for some time, and that' she was seen to limp after the occurrence. This evidence and other facts of record leave no doubt that plaintiff was injured when she alighted from that train, and that she suffered damages resulting from that injury which were caused by the fault of defendant company.

The lower court allowed $300.00 to plaintiff, which we find to be a just award.


author: ELLIOTT, J.

text:
    No. -
    First Circuit Appeal
    MRS. MAY CHESNUT, ET AL., v. O. C. SNELL, ET AL.
    (June 20, 1925, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Mandate—Par. 29, 34.
    Under Articles 21 and 2295 of the Civil Code, where one undertakes to manage the affairs of another, .he incurs all the obligations which would result from an express agency with which he might have been invested by the owners. Therefore, he must return to the owner all rents collected by him as manager.
    2. Louisiana Digest — Fraudulent Conveyances — Par. 18.
    Where, while attorneys were employed by an agent for the owner to perfect the owner’s title so that she could sell the agent the property, a tax sale occurs in which attorney employed by the agent purchases the property, it is a simulation and therefore null and void.
    3. Louisiana Digest — Taxation—Par. 330, 331.
    Notice of tax delinquency addressed to the owner at Hammond, La., after the owner had been a resident of the State of Oklahoma continuously for several years, was equivalent to no notice at all and therefore the tax sale Was null and void.
    4. Louisiana Digest — Taxation—Par. 381.
    A petition which alleges that “the tax title is a simulation; that it stands on record as a violation of Mr. Snell’s duty to Mrs. Chesnut, etc.; that it should be cancelled as null and void,” are allegations that the title has no actual existence but merely serves as a cloud on the title of the owner, and states a cause of action because, under the circumstances tke title does not have to be directly attacked.

      5. Louisiana Digest — Taxation—Par. 375, 381.
    It is not necessary for the plaintiff to complain that the tax title of the defendants has no actual existence to directly attack a tax title in order to get judgment declaring it null and void.
    Appeal from the Twenty-fifth Judicial District, Parish -of Tangipahoa. Hon. Robert S. Ellis, Judge.
    This is a suit for a tax sale to be decreed a simulation and as such null and void.
    There was a demand for the return of rents collected by one of the defendants.
    There was judgment for plaintiff and • the defendant, Snell, appealed.
    Judgment affirmed.
    A. W. Spiller, of Amite, attorney for plaintiff, appellee.
    W. S. Rownd, of Hammond, attorney for . defendant, appellant.
   ELLIOTT, J.

This is a suit by Mrs. May Chesnut and other plaintiffs, her coheirs and co-owners, suing as owners and possessors, to have a tax sale of the property described in their petition decreed to be a simulation, and as such null an,d void on the ground that it was made without notice to her that her taxes were delinquent; and also because the party who purchased the property at the tax sale had no right to permit it to be sold for taxes.

That the purchaser had the tax sale title placed in the name of another party in order to screen the fact that he had himself purchased it. And the plaintiffs claim that the defendant, Snell, should account to Mrs. Chesnut for sums. collected as rents. Plaintiffs, referring to a previous judgment in the suit, in which O. C. Snell, one of the defendants in the present suit, was the plaintiff, and Mrs. May Chesnut, one of the present plaintiffs, was the defendant, alleged compliance on her part with the requirements of the judgment in the matter of returning double the earnest money mentioned in the previous judgment.

Plaintiffs allege that the money was tendered to Judge W. S. Rownd, attorney for O. C. Snell, and that Judge Rownd declined to receive the amount; it was then tendered to Mr. Snell.

Defendants O. C. Snell and W. S. Rownd for answer deny that plaintiffs are the owners and possessors; deny that the tender made wa,s sufficient in amount; also deny that it was made within the time fixed by the judgment, ■ and allege that it had no effect on that account.

They allege that the tax title vested in Judge Rownd was a good and valid tax title, and deny that it was a simulation and had been made for the purpose of screening an illegal act, and deny that .plaintiffs were entitled to the sums claimed collected by Mr. Snell, as rent for the property.

The District Judge rendered judgment in. favor of the plaintiffs as prayed for.

Defendant Snell appealed.

The record of the previous suit offered in evidence requires some notice in the present case.

Mr. Snell was a real estate agent in Hammond, La., and became the agent of Mrs. Chesnut for the purpose of looking after, collecting rents, paying taxes on and in trying to sell for her the property described in her petition.

As her agent, he for some time looked after the property for her, made efforts to collect rent, and on one occasion paid taxes for her. He subsequently wrote her' that he might buy the property for himself. This led to the agreement to sell, the recall of which caused the former suit. This agreement to sell was called off by Mrs. Chesnut soon after it was entered into; she states in her. letter revoking her promise that she was informed that he had not acted right toward her in the matter .of price and declined to have further dealings with him of any kind. During an exchange of letters on the subject the property was assessed to Mrs. Chesnut for the year 1922. The taxes were not paid and on June 23, 1923, the property was adjudicated to Mr. Snell for delinquent state and parish taxes assessed against Mrs. Chesnut for the year 1922, but the title was taken in the name of .W. S. Rownd. This title was recorded July 12, 1923.

The firm of Rownd & Hungate had been employed by Mr. Snell for Mrs. Chesnut to perfect her title so she could sell, him the ■property and make him a good title, and while they were so ostensibly engaged the above mentioned assessment and sale was made.

After Mrs. Chesnut agreed to sell' the property to Mr. Snell, she- wrote him, authorizing him to take possession. So. Mr. Snell collected the rent, but, as a witness, he claims that the rent collected belongs to him because of her promise to sell him and authority to take possession pending the execution of the promise.

We are satisfied from the evidence that' Mrs. Chesnut complied with the judgment in the previous suit in the matter of returning double the earnest money and tendered a proper amount and within the limit prescribed; first to Judge Rownd " and then to Mr. Snell.

After this tender was made and declined Mr. Snell ceased to have any further right or interest in and to the property, and the sums he had collected as rent belonged to Mrs. Chesnut, the owner of the property:

As for the tax title set up against plaintiff by Judge Rownd, the notice of.idelinquency was addressed to Mrs. Chesnut at Hammond, La., wherea's Mrs. Chesnut had been a resident of Chickasha, Grady County, Oklahoma, continuously since. 1919; therefore the notice sent to her at, ..Hammond, La., was equivalent to no notice at all. Her residence in Oklahoma was shown by a title or agreement covering ■the property in question signed by her coheirs and duly recorded in the conveyance records of the parish of Tangipahoa .in the year 1919 and by an assessment made previous to the one in question. •

We. do not' think the tax 'title -can be supported as legal for the reason stated; but there is another reason why the plaintiff is entitled to have it cancelled.-

The evidence shows that Mr. Snell" should not have permitted the property to be sold for delinquent taxes. He had collected rent on the property which justly belonged to Mrs. Chesnut as above stated and had same in his possession at the time, more than sufficient to pay all the taxes due thereon. It is true he claimed this money, because of her promise to sell and authorization to take possession pending. the execution of the promise, but the judgment heretofore rendered recognizing her right to recede from the promise upo.n paying back to him double the sum received and her tender and his refusal left him .without any further interest in the property and under the duty of accounting to the owner for the sums collected as rent.

Mr. Snell, having permitted the property to be sold for taxes for the purpose of buying it in for himself, his purchase will be regarded as a mere payment of the 'taxes due thereon and not as divesting the title of Mrs. Chesnut. ...

The allegations of the plaintiff: that the tax title was a simulation, in that Mr. Snell bought 'in the property for himself but had the title placed in the name of his attorney, Judge Rownd, though denied | in the answer, was admitted on the trial' in open'court. The fact that Mr. Snell had' the title placed in- the .name of Judge Rownd instead of taking it in his own. name is proof that he felt that he had no : right to permit it to be sold for taxes or right to buy it in.

The judgment appealed from ordering the cancellation of the tax title and the return to Mrs. Chesnut of the sums which Mr. Snell had collected as rent, subject to the credits allowed in the lower court, appears to us to be an equitable decision and meets with our approval. C. C. Arts. 21 and 2295.

The defendants contend in their answer that the tax title is not directly attacked, etc.

The plaintiffs allege that they are the owners and possessors of the property; that the tax title is a simulation in the way stated; that it stands on record as a violation of Mr. Snell’s duty to Mrs. Chesnut, etc.; that it was taken in the name of Judge Rownd for .the purpose of screening the fact; that it should be cancelled as null and void and the plaintiffs pray to be recognized as the owners, etc.

Generally speaking, a tax title not null and void on its face should be directly attacked-, But where the allegation is that the title has no actual existence; that it was in fact a mere payment of the taxes and only serves as a cloud on the-title of the owners, we think it may be ordered cancelled under ’ allegations^ and prayer such as we find in this case. Such a title, set up by defendants as a muniment of title, is open to every objection of law and fact which shows that it is not a title and .had no actual existence as such. Telle vs. Fish, 34 A. 1243; Willis vs. Cypress Co., 108 La. 255, 32 South. 386.

We find no error in the judgment appealed from.

Por the above reasons the judgment appealed from must be affirmed.

■ Judgment affirmed. Defendant and appellant to pay the cost in both courts.


author: CARVER, J.

text:
    No. 2325
    Second Circuit Appeal
    W. T. NETTLES v. DR. F. A. BLANCHARD
    (June 23, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625, 626, 627.
    Where the credibility of 'witnesses and the preponderance of evidence is in favor of the defendant in a suit for damages for assault and battery, the judgment of the lower court being correct is affirmed.
    Appeal from Ninth Judicial District Court of Louisiana, Parish of Rapides, Hon. L. L. Hooe, Judge.
    This is a suit for damages to plaintiff’s minor son by assault and battery. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Peterman, Dear and Peterman, of Alexan-' dria, attorneys for plaintiff, appellant.
    Overton and Hunter, of Alexandria, attorneys for defendant, appellee.
   CARVER, J.

Plaintiff sues on behalf óf his minor son, Luther Nettles, for damages alleged to have been inflicted on him in three assaults and batteries, two by Dr. P. A. Blanchard and his employee, Arthur A. Gremillion, and the other one by Dr. P. A. Blanchard alone.

According to the averments of plaintiff’s petition,. Luther climbed over a fence separating the backyard of defendant’s theatre from an .alleyway, for the purpose of getting his cap which had been thrown there by a playmate, and while in the act of climbing back over the fence to the street he was assaulted by Dr. Blanchard and Gremillion who struck him with sticks, beating him in the face, .threw him to the ground and kicked him. That then he was roughly grabbed by Blanchard and. Gremillion and carried to the theatre through which he was dragged over the seats, being kicked while going through the theatre hy both Blanchard and Gremillion, and slapped in the face while going through, then pushed and kicked through the front door. And afterwards, when' Luther was some distance away, on 'premises not belonging to defendant, defendant Blanchard struck him on the nose, causing it to bleed, and shoved or kicked him into the street.

Doctor Blanchard’s version of the affair is that while sitting in his office, which is upstairs in the back part of the building containing a moving picture show, he heard a noise in the back yard, went, to the window and walked on the roof, where he saw Luther Nettles, Phillips and Tassin at the gate trying to push it open; that the Nettles boy climbed the wall, whereupon he went downstairs, got Gremillion and together went into the picture show and he and Gremillion took seats in the front row next to the screen, from which place they saw the boys open the door of the theatre and come in. That when the boys saw him and Gremillion they started to go out, when he and Gremillion followed them into the the yard, and Phillips began to climb the wall to go out, Nettles waiting until he got over. That he remonstrated with Nettles for coming in the way he did, and not wishing the boy to climb the wall and not having any key to the gate he took Nettles by the arm and led him through' the theatre, accompanying him only about half way, when he returned to see if the the boys had broken or damaged the door, and Nettles went out. Further, that about fifteen or twenty minutes afterwards when near a drug store a short distance away from the theatre building, he came upon Luther and upon Luther’s making some remark he put his hand on his shoulder, telling him if he did not stop that talk and behave himself he would turn him over to an officer.

He denies that either he or Gremillion struck Luther either with sticks, their hands or anything else, or that tliey kicked him or abused him in any way whatever.

Luther gave testimony substantially in accord with the allegations of the petition.

The alleged assault in the backyard and also what may be regarded as the third alleged assault, that near the drug store, is testified to also by Louis Tassin, age 14, and Thomas Phillips, whose age is not given but who is evidently a boy in his teens.

Luther’s testimony as to his being dragged through the picture show over the benches .is not corroborated by any one, except as to the statement that he was kicked out of the front door.

If these witnesses are telling the truth, the plaintiff is entitled to recover.

On the other hand, Doctor Blanchard’s version of what occurred in the backyard is corroborated by Patrick Lorens, a colored porter at the Rapides Olub, who claims to have seen that part of it from the roof garden of the club, and also by Arthur A. Gremillion, an employee of Dr. Blanchard.

Doctor Blanchard’s version as to what occurred going through the theatre is corroborated by Gremillion and E. E. Bordelon a carpenter who is sometimes employed by Doctor Blanchard. His version of that part of the affair taking place near the the drug store is corroborated by Ferdinand Ingouf, collector and salesman for Pollock & Company, who is not shown to have any relation with either party to the suit.

No weight can be given to the testimony of Tassin. His statements, both in and out of court, contradict each other.

The testimony of Luther, Nettles is weakened not only by the fact of his interest in the case but also by the fact that Baillio, probation officer and police officer, testified that his reputation for truth and veracity was bad, and no effort was made to contradict this testimony.

The case turns largely on the weight to be accorded to the testimony of the various witnesses, and this depends chiefly on their credibility. It is not a case of witnesses being honestly mistaken but of telling the truth or deliberately telling an untruth.

The District Judge who heard and saw them adopted the version given by defendant and his witnesses. In this court the plaintiff carries the burden of proof which is made heavier by the judgment of the lower court being against him as well as a numerical preponderance of witnesses. His counsel recognizes the weight of the burden thus resting on him but claims that Luther’s version is borne out by the physical facts and is besides inherently more reasonable and probable than that of defendant.

The physical facts are Luther’s torn clothes, his bleeding from the nose, and leg, and stripes on his back, arms and shoulder.

These marks on Luther’s person were proven by the testimony of his mother, father, brother and, to some, extent, by City Judge Nachman.

As to the bleeding from the leg, it is admitted that he had a sore leg before the affair and he might well have made it bleed afresh by some accident. So with his bleeding at the nose; this might have been caused in a fight or in play with other boys. . ■

It is not pretended that there was any bleeding from the stripes on the back, arms or shoulder but only that they were black and blue. This, too, might have been caused by some one else than Blanchard.

Neither Luther’s father, mother, brother nor the judge pretends to have known how any of these wounds were received or how his clothes were torn.

In the face of Doctor Blanchard’s positive denial that he inflicted any of the wounds, corroborated as it is by so many witnesses and evidently believed by the District Judge, we cannot accept the testimony of Luther, discredited as he is by Baillio’s testimony and his interest in the case without more corroboration than we find in the record.

It does not seem to us that plaintiff’s version of the affair is the more reasonable.

If defendant had mistreated Luther to the extent alleged we think it likely that of the fifty or more people in the show, the several outside of the show, and those at the drug store when the third alleged assault was committed, some would have protested or at least would have offered their services to plaintiff as witnesses.

For these reasons the judgment of the lower court is affirmed.


author: ODOM, J.

text:
    No. 2033
    Second Circuit Appeal
    LUCKETT & HUNTER v. TEXAS AND PACIFIC RAILWAY COMPANY
    (October 21, 1925, Opinion and Decree on Rehearing.)
    (Original Decree may be found in 1 La. App. 434.)
    (March 1, 1926, Decision Supreme Court judgment first rendered by Court of Appeal, which affirms judgment District Court, reinstated.)
    (ON REHEARING)

      (Syllabus by the Editor)
    1. ' Louisiana Digest — Railroads—Par. 41.
    The director general of railroads cannot be held liable for acts or omissions of those of other railroad systems than that of whose agents the negligent act is alleged or proved. He can only be held liable for such negligence as ' might have been adjudged against such railroad before federal control.
    •Appeal from Thirteenth Judicial District Court of Louisiana, Parish of Rapides. Hon. J. A. Williams, Judge.
    Provosty & West, of Alexandria, attorneys for plaintiffs, appellees.
    Peterman, Dear & Peterman, of Alexandria, attorneys for defendant, appellant.
   ODOM, J.

In our opinion in this case written on application for rehearing, we went into the facts fully and found that the mule was not injured through any. fault or negligence on the part of the servants or agents of the Texas and Pacific Railway Company but through the fault and negligence of the employees of the New Orleans and Northeastern Railroad Company, whose connection with., the shipment was fully stated in that opinion.; but we held that the suit was in reality against the director general of railroads, who was, at the time this cause of action arose, in charge of and operating both the. New Orleans and Northeastern and the Texas and Pacific Railroads; and we said. “We think, though, that the director general was negligent in loading the mule on a car which was defective.”

Therefore, in effect, at least, we held that, although the employees of the Texas and Pacific Railway were guilty of no negligence in the handling of the mule and were in no way connected with the injury to it, yet the director general is liable inasmuch as he is'the “same entity” that is operating the New Orleans and Northeastern railroad and that the plaintiffs “need look only to the director general as the party to respond for damage caused by negligence on the part of any of the railroads which he was operating under the federal control statute”.

Since that opinion was written, however, our attention has been called to a decision of the Supreme Court of the United States holding directly to the contrary.

We refer to the case of Davis, Director General of Railroads, vs. Donovan et al., 265 U. S. 257, the syllabus of which is as follows:

“Under Federal Control Act, Sec. 10 (Comp. St. Ann. Supp. 1919, Sec. 3115% j), Director General of Railroads, when sued for negligence, of his servants operating particular railroad, could not be held liable for acts and omissions of those of another railroad system, since, as Director General of certain railroads, no liability could be adjudged against him, except such as might have been adjudged against such railroad before federal control.”

Under the law as laid down in that decision, and under the facts as found by us, the defendant, the Texas and Pacific. Railway Company, is not liable.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed and avoided, and that plaintiffs’ demand be rejected and their suit dismissed at their costs.


author: ELLIOTT, J. LECHE, J.

text:
    No. 23,139
    First Circuit Appeal
    J. POSEY CAMPBELL AND WIFE v. LEON S. HAAS
    (June 30, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Automobiles—Par. 4; Pleading — Par. 62.
    A petition which states that the automobile of the plaintiffs was standing on the left side of the road with the headlights burning bright while its tire was being fixed, when the defendant negligently ran into it, thus, killing the plaintiff’s daughter; states a cause of action, as it does not show the plaintiffs to have necessarily been negligent (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Sixteenth Judicial District Court, Parish of St. Landry, 1-Ion. B! H. Pavy, Judge.
    This is a suit brought by a man and his wife for the death of their daughter, as the result of an automobile accident. The defendants filed an exception no cause of action which was sustained and the suit dismissed. Plaintiffs appealed.
    Judgment reversed, the exception no cause of action overruled, and the case remanded to the lower court for further proceedings according to law.
    White, Holloman and White, of Alexandria, attorney for plaintiffs, appellants.
    Dubuisson, Perrault and Burleigh, of Opelousas, attorneys for defendant, appellee.
   ELLIOTT, J.

J. Posey Campbell and Mrs. Henrietta Campbell, his wife, alleging that their daughter Miss Lucy Louise Campbell had lost her life as the result of the gross fault and negligence of the defendant Leon S. Haas, claims of him damages on said account to the amount of $25,000.00.

Defendant excepted to plaintiffs’ petition on the ground that it set' forth no cause of action.

The exception was sustained and the suit dismissed.

The plaintiff appealed.

The plaintiffs allege that Miss Meginley invited their daughter to go riding with her; that their daughter accepted her invitation and went riding with her, as her companion and guest; that on their return toward the City of Opelousas, some half-mile or more outside of the city limits and about 8 or 8:30 p. m., on December 29, 1923, and near the residence of E. P. Smiley, the left rear tire on Miss Meginley’s automobile was punctured, upon which Miss Meginley “drove her car in front of Mr. Smiley’s residence, putting the left side of the car as close as possible to the ditch and called for assistance”.

That the left side of the car was put as close to the ditch as possible, so that persons working on it would be on the side away from and out of danger from passing automobiles.

That the front and rear lights were left burning in order to show any passing vehicle that the car was standing on the extreme side of the road at the place where the repairs were being made; that the road at this place is about twenty-five feet wide and gravelled; that the car was within two feet of the ditch “on the left hand side” of the road facing Opelousas; the right side of the car within seven feet of the ditch, leaving about eighteen feet of clear road between the car and the ditch on the opposite side of the road; more than sufficient room for two cars to pass abreast between the car and the ditch on the opposite side of the road.

That the road at the place where the car was standing is straight for a long distance both ways; the straight road toward Opelousas from the place where the car was standing being approximately or nearly a quarter of a mile, at which distance the road makes a slight bend.

That one driving from Opelousas would have seen the rays from the headlights on the car before rounding the curve above referred to, and the car itself would come into view before rounding the curve.

That the “automobile was under the sole control and care of • Miss Meginley, the driver”; that while Mr. Smiley was engaged in removing the punctured tire and putting on another in its place, their daughter in the rear of the car, defendant, without warning bore down upon them with gross and wanton carelessness, indifference and negligence from the direction of Opelousas, at a reckless, highly excessive and dangerous speed, as high or exceeding sixty miles an hour, covering as much as eighty feet of ground per second and “before anyone could move from one’s tracks” swerving somewhat to the right, crashed into Miss Meginley’s car with terrible force; the blow propelling it down the road against their daughter, striking and knocking her down, injuring her so that she died as a result of the blow.

That said Haas knew the road was used by. a great many automobiles and other vehicles and that it was the grossest negligence for him to be driving at such a rate of speed,, without a proper lookout and watch upon the road before him, and without having his car under control, so that he could stop it. and avoid striking Miss Meginley’s car: that his gross and inexcusable negligence in striking Miss Meginley’s car was solely responsible for the death of their daughter resulting therefrom.

Defendant states in his brief: “At the outset we may as well state that we do not contend that the petition fails to state facts which, if true, would convict defendant of. negligence. What we do contend is that the petition, does show a condition of things which demonstrates that Miss Campbell’s own negligence .contributed as a proximate cause to her injuries and death, and that this fact debars plaintiffs from a right to recover, “and argue that as plaintiffs’ petition alleges that their daughter was in the rear of Miss Meginley’s car, stopped on the left hand side of the road .with front lights burning, and near enough to be struck by it as a result of defendant’s propelling blow against it, that it appears therefrom that their daughter was guilty of negligence which contributed in a proximate way to her injury; with the result that the petition discloses n,o cause of action.

The allegation that the automobile in which their daughter went riding “was under the sole control of Miss Meginley, the driver,” negatives the idea that Miss Campbell was in any way responsible for the position of the Meginley car. ’ When Miss Campbell got out of it and into the road, she ceased to be Miss Meginley’s. riding guest, and occupied the same position as any person on foot in the road. .

Defendant contends that Miss Campbell, by being in the rear of the Meginley car while a tire was being changed was negligent. The law required her, after getting in the road, to exercise due -care and prudence of her safety, and the rights of others; but there is no law of the road or customs that required her to take herself out of the road or over to the righthand side of it. Therefore negligence is not, as a matter of law to be imputed to her simply because she remained on the left-hand side of the road and in the rear of the Meginley car while a tire .was being changed.

It is contended that it results from her alleged position in the rear of the Meginley car that she could not see “defendant’s approaching car, but that is not more - evident than that she saw it approaching and supposed That it was being driven at a rate of speed and under such control that the driver must see the Meginley car in time to' stoS or turn to the left of it in the ample leeway left for the purpose, and avoid striking it.

All the facts and circumstances bearing on the matter should be before the court in order that the question of “fault” “neg-' ligence”- “imprudence” or want of skill may” be property determined.

Contributory negligence can, of course, appear on the face of a petition; but plaintiffs’ petition does not present such a situation.

Contributory negligence as a rule is a defense on the merits and must be plead and proved, accordingly.

In Southall vs. Smith, 151 La. 967, 92 South. 402, an automobile had stopped in the street — Southall got out to examine it and while so engaged Smith ran into him, Striking his automobile and injuring South-all. The Supreme Court speaking of Smith says:

“An automobile driver can not put himself in a position where, in order to save himself, he must run into somebody else and then plead that he can not help it and therefore is not liable. Defendant was familiar with the situation as he approached this corner; he was aware that a car might suddenly appear around the corner, as he says one did. At this corner was a large barn which cut off from sight any automobile or other vehicle about to come into Middle street from that direction. This impossibility of knowing whether a car was or was not approaching from that direction, and might not suddenly appear, as defendant says one did, made it necessary for defendant to be doubly careful.”

The court then quotes part of Ruling Case Law, Vol. 2, p. 1184. We will quote the entire section:

“Anticipation of the presence of others: -It is part of the duty of an operator of a motor vehicle to keep his machine always under control, so as to avoid collisions with pedestrians and others using the highway. He has' no right to assume that the road is clear, but under all circumstances . and at all times he must be vigilant and must anticipate and expect the presence of others. Accordingly, the fact that he did not know that anyone was on the highway is no excuse for conduct that would have amounted to recklessness if he had known that another vehicle or person was approaching.
“Drivers of motor vehicles must be especially watchful in anticipation of the presence of others at places where other vehicles are constantly passing, and where men, women and children are liable to be crossing corners, at intersections of streets or near street cars from which passengers may have alighted, or may be about to alight, or in other similar places or situations where people are. likely to fail to observe an approaching automobile. Accordingly, it is the duty of drivers of automobiles, when he has occasion to turn the corner of a street, to slow down the machine in anticipation of the presence of persons in .the highway at street crossings, and if a person is standing on the highway a driver must notice him and take care not to injure him, and a failure to see a pedestrian in the street may amount to negligence.
“When a car is traveling áilently on the wtong side of the road, close to the curb, the person in control of the car should be observant of pedestrians who are traveling on the sidewalk, and who may step into the street in front of the car. The duty to anticipate the presence of others applies to private lanes which are open to the public, and reasonable care must be taken in operating in .such lane, not to injure a person who as a mere licensee may be driving a horse and carriage through the lane or a short cut between highways.
“It is negligence to drive into a vehicle while it is standing still on the side of the roadway, when there is room to pass without colliding with it. If there is not room to pass it is the duty of.the driver of the approaching vehicle to stop and call out to the driver of the other vehicle to move out of the way.” Odom vs. Schmidt 52 La. Ann. 2129, 28 South. 350.
“He should proceed slowly and cautiously and at first appearance of danger he should take proper steps to avoid it, and if necessary to stop his machine and even the motor when it is necessary and practicable. He will be presumed, in case of accident, to have seen what he shohld have seen in the performance of his duty. Kelly vs. Schmidt & Ziegler, 142 La. 91, 76 south. 250, and see Blackburn vs. Louisiana Ry. & Nav. Co., 144 La. 520, 80 South, 708; State vs. Vige, 137 La. 131, 68 South. 383, cited by plaintiffs:
“ ‘And every person operating a motor vehicle on any highway or road in this State shall run it at a fate of speed at no time greater than is reasonably proper, having regard to the traffic and the use of the highway or road and the safety of the public.’ ” Act 1921, No. 120, Sec. 19.

The case Bragdon vs. Kellog, 6 L. R. A., 669, cited by defendant was not decided on a question of no cause of action. The exception of no cause of action should have been overruled.

For the above reasons the judgment appealed from is annulled, avoided and set aside. The exception of no cause of action is overruled and the case remanded to the lower court for further proceedings, as required by law. The defendant to pay the cost of his exception in both courts and the cost of the appeal.

DISSENTING OPINION.

LECHE, J.

I do not believe, under the facts stated in the petition, that defendant was at fault.

When defendant rounded the curve alleged to be about a quarter of a mile ahead of the Ford, and saw two glaring headlights on the road, it was only reasonable and logical for him to assume that the automobile with full lights on, was coming towards him. It is impossible, at night, for the occupants of a rapidly moving automobile, on seeing ahead two headlights glaring at full strength and focussed upon them, to know or to realize that' the automobile to which they are attached, is standing still, the presumption is irresistible that such an automobile is moving, otherwise why should it have full lights on? This being conceded, defendant was then bound under the custom, which is the rule of the road, to meet such a car oil the right. But when he got near enough to ascertain that the Ford was stopped on the left side of the road, it was too late for him to avoid it and hence the collision.


text:
    No. 1955
    Second Circuit Appeal
    N. MUROV v. MARKS MEYER
    (March 17, 1925, Opinion and Decree)

      (Syllabus by the Editor)

    1. Louisiana Digest — Chattel Mortgages— Par. 4, 5.
    A chattel mortgage executed three days prior to the removal of the furniture into the leased premises, but not recorded until a day after this removal will be primed by the lessor’s lien because, under Section 2 of Act 198 of 1918, chattel mortgages have effect against third persons from the date they are recorded in the parish where the property shall then be situated and also in the parish in which the mortgagor is a resident.
    Appeal from the City Court of Shreveport. Hon. C. V. Prothro, judge ad hoc.
    This is a suit by the owner of a chattel mortgage on furniture, against the landlord who had seized and sold the furniture for the rent, to compel him to pay the balance due by the former tenant for the furniture.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Abe Freyer and Edward Barnette, of Shreveport, attorneys for plaintiff, appellant.
    Cook & Cook, of Shreveport, attorneys for defendant, appellee.
   ODOM, J.

Plaintiff sues the defendant for the sum $119.50 and interest from June 13, 1921, until paid, and 10% attorney’s, fees, and sets up as a cause of action that lie sold and delivered to one Ike Thomas; a hill of goods and merchandise on .which he owed a balance of the above amount.

He alleges that he had a vendor’s privilege and a chattel mortgage on the goods sold to secure the payment of the balance due thereon, and that Marks Meyer, the defendant, by means of “frontier process” took possession of the said goods and “has thus frustrated” plaintiff in the exercise of his rights as vendor and holder of the chattel mortgage, and that defendant “fails and refuses to cause the production of such goods, wares and merchandise in order that they may be subjected to your petitioner’s claims”.

And he prays for judgment against the defendant in the sum of ¡¡>118.50 and interest and attorneys’ fees, and asks that defendant be afforded the privilege of satisfying the judgment against him by delivering to the plaintiff the goods and merchandise taken by him in order that same may be sold under the orders of the court to satisfy petitioner’s claim against Ike Thomas.

Defendant tendered an exception of no cause of action, which was overruled by the court; and with reservation of his rights under this exception he answered denying all the allegations of the petition

The case was tried on the merits and there was judgment rejecting the plain tiff’s demands at his cost, from which judg ment he appeals.

OPINION.

Counsel for appellant say in brief tha there are only two points involved in the case, the first being the question of the respective rank of the chattel- mortgage of the plaintiff and the defendant’s lessor’s privilege; and the. second, the validity of the chattel mortgage itself.

Assuming that this is true, the case is easily disposed of.

We will assume, without so holding, that the chattel mortgage involved was properly executed by the debtor Ike Thomas before a Notary and two witnesses as the law required. We find that chattel mortgage is dated June 13, 1921, the day on which plaintiff sold the furniture to the said Ike Thomas. The furniture was moved by said Ike Thomas, the debtor, into defendant’s house on June 16, 1921, three days after the execution of the chattel mortgage.

Under the authority of the case of Youree vs. Limerick, 157 La. 39, 101 South. 864, counsel say that plaintiff’s privilege under this chattel mortgage primes the lessor’s privilege by virtue of the fact that the chattel mortgage was executed three days prior to the date on which defendant’s lessor’s privilege arose; the mortgaged furniture not having been moved into defendant’s home until June 16, 1921.

This- would undoubtedly be true if plaintiff’s chattel mortgage had been filed and recorded prior to the date on which the furniture went into defendant’s house. But according to the certificate of the deputy recorded the chattel mortgage was filed and recorded on June 17, 1921 — the day after the furniture was carried into the leased premises.

The chattel mortgage law, page 372 of Act 198 of 1918, provides in section 2:

“In order to affect third persons without notice, said instrument must be passed by Notarial act and the original or a certified copy thereof shall he recorded in the office of the Recorder of Mortgages in the parish where the property shall then be situated, and also in the parish in which the mortgagor is a resident”.

And further provides, in section 4:

“That every mortgage shall be a lien on the property mortgaged from the time the same is filed for recordation, which filing be notice to all parties of the existence' of the mortgage, and said lien shall be superior in rank to any privilege or lien arising subsequently thereto”.

Plaintiff’s chattel mortgage was filed and recorded on June 17, 1921. It did not affect third persons and in fact was not a lien on the property until that date, according to the plain language of the statute.

The chattels were moved into defendant’s premises on June 16, 1921, and on that date the lessor’s privilege took effect, and according to the Youree case, cited supra, that is true whether there was any part of the rent due or not.

Ike Thomas, the owner of the furniture, had leased the premises from defendant and moved the furniture therein on June 16, 1921. On that date there was no lien on the property, because the chattel mortgage had not- been filed and recorded. The lessor’s lien attached at the beginning of the tenancy to secure whatever rent- might become due.

Ike Thomas defaulted on his rent until he was due $80.00. The-lessor, defendant in this case, had the furniture seized and sold as we understand it to satisfy this rent claim.

Plaintiff grounds his action upon the proposition that his lien and privilege upon this personal property was superior to that of defendant and that inasmuch as defendant had caused said property to be subjected to his lessor’s privilege he should pay plaintiff the balance of his debt.

We think plaintiff has failed to make out his case.

We are not passing on the exception of no cause of action filed by defendant, as we think the case is with the defendant on the merits.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed; the plaintiff to pay the costs of both courts.


text:
    No. 2059.
    Second Circuit Appeal
    W. G. BURT v. MRS. S. M. SMISSON, ET AL.
    (March 17, 1925. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 511.
    Where the amount in dispute is less than the lower limit of the Court of Appeal’s jurisdiction, the appeal will be dismissed.
    2. Louisiana Digest — Appeal—Par. 518.
    Where there is no evidence or statement of facts on which to base an opinion the appeal will be dismissed.
    Appeal from Second Judicial District Court of Louisiana, Parish of Bossier, Hon. Robert Roberts, Jr., Judge.'
    Suit dismissed for want of jurisdiction of Court of Appeal.
    Murff, Mabry & Perkins, of Shreveport, attorneys for plaintiff-in-rule, appellee.
    Thomas W. Robertson, of Shreveport, attorney for defendant-in-rule, appellant.
   ON RULE BY DEFENDANTS TO TAX COSTS.

CARVER, J.

Defendants in the above entitled and numbered cause took a rule on plaintiff to tax as costs the suit the fees of one W. E. Martin amounting to $50.00.

From a judgment rendered in their favor against plaintiff, taxing said amount as costs, plaintiff appeals.

Defendants (plaintiff-in-rule) moved to dismiss the appeal on the ground that the •amount in dispute is less than the lower -limit of this court’s jurisdiction, and also because the record contains no evidence or statement of facts; and they also ask for 20% on the amount of the judgment as damages for frivolous appeal.

No appeal was taken in the main suit.

The motion to dismiss is well founded on hoth grounds. .

See State, ex rel. Mut. Bldg. & H. Assn. vs. Judges, 106 La. 241, 30 South. 697.

As to the claim for damages for frivolous appeal, it was held in the cases of Allen vs. Arnouil, 18 La. 437, and New Orleans Imp., etc., Co., vs. Walker, 1 La. Ann. 180, that damages could not be allowed where dismissal is claimed.

The appeal is therefore dismissed, but without damages.


author: MOUTON, J. LECHE, J.,

text:
    No. -
    First Circuit Appeal
    SUCCESSION OF SIMONETTE REASON FALLS; JOSEPH FALLS, Opponent
    (February 18, 1925, Opinion and Decree.)
    (May 15, 1925, Rehearing Refused.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Bastards and Natural Children — Par. 7.
    The modes of acknowledgment prescribed by Article 203 of the Civil Code are-not exclusive. Therefore the mother may acknowledge her illegitimate child by raising her and treating her as her child.

      2. Louisiana Digest — Bastards and Natural Children — Par. 20.
    The mother who has acknowledged her illegitimate child merely by raising her and treating her as 'her child, though not complying with Article 203 of the Civil Code, can inherit from the child under Article 922 of the Civil Code. ■
    . Appeal - from the Parish of St. Mary, Hon. James Simon, Judge.
    This is. a suit involving the distribution of the estate of an illegitimate child. The mother -claimed to be the .heir but the succession. was opposed by the 'husband. There was judgment for the husband, opponent and • the mother appealed.
    Judgment reversed.
    Paul Kramer, of Franklin, attorney for plaintiff, appellant.
    Charles J. Mundy, of Franklin, attorney for opponent.
    LECHE, J., dissents and hands down written reasons.
   MOUTON, J.

Simonette Reason Falls, the illegitimate daughter of Mary Bingham and Washington Reason, died June, 1913, intestate and without issue of her marriage .with Joseph Falls, her surviving husband. At her death she left an estate in community with her husband, - and -some separate property. In an ex parte proceeding-,, Mary Bingham, mother of deceased, and;, her children born of her marriage with; Robert Bingham, now deceased, were placed in possession of the succession of Simonette Reason Falls. The lower court, on the opposition of Joseph Falls, surviving husband of -Simonette Reason, rescinded the decree putting Mary Bingham and her children in possession, and decreed that Joseph Falls was entitled to- inherit, as surviving husband, the entire share of the wife in the community, and also her separate estate. From this judgment plaintiffs appeal.

Simonette Reason Falls was, as before stated, the illegitimate child of- Mary. Bingham and Washington Reason, deceased. She never was acknowledged by her mother, Mary Bingham, either by a declaration in a notarial act or by baptismal registry, as provided for by Article 203, Civil Code. The proof shows, however, that she. was the child of Mary Bingham, was reared by her and was acknowledged as such by her in every way except in one of the modes pointed out in the article ' of the. Coqle above mentioned. This acknowledgment, though not by notarial act or in the register of birth or baptism, was a leggal acknowledgment by the mother. The court has so. held in the following cases: Briggs vs. McLaughlin, 134 La. 133, 63 South. 851; Taylor vs. Allen, 151 La. 82, 91 South. 635; Murdock vs. Potter, 155 La. 145, 99 South. 18. The jurisprudence may now be considered settled on this subject. The next question is as to whether this acknowledgment by the mother entitled Simonette Reason to be called or classed as a natural child; and, upon her death, without posterity, conferring on her mother the right to claim her estate under Article 922, Civil Code. This presents the vital issue in the case.

Civil Code, Article 202, in part, reads:

“Illegitimate children who have been acknowledged by their father are called natural children; those who have not been acknowledged by their father are contra-distinguished by the appellation of bastards.”

Counsel for the opponent contends, if we appreciate his position correctly, that the acknowledgment by the mother alone can not change the status of an illegitimate offspring into that of a natural child; which is not thereby taken out of the’ classification of Article 202, Civil Code, and is therefore contradistinguished by the appellation of bastard.

In Briggs vs. McLaughlin, 134 La. 133, 63 South. 851, the court said: “Children acknowledged by both, or either of their parents, are called natural children.” In that case the illegitimate offspring had not been acknowledged in a notarial act or in the baptismal records. It was shown there, as appears in this case, that the mother had, from its birth to the time of its death, recognized the child openly and publicly as her own child. It was held, however, that the child so acknowledged was a “natural child”; and as far as we are aware, this decision has not been directly overruled.

In the Succession of Lacosst, 142 La. 682, 77 South. 497, the court said that, though a child be legally acknowledged by the mother, unless the father also acknowledged him, the mother could not inherit from that child under Article 922 C. C., as he would be a bastard according to the provisions of Article 202, Civil Code. In. reaching this conclusion, if we correctly appreciate that decision, the court held that Article 202 controlled the meaning of “natural child” as used in Article 922; that the child still remained a bastard under the classification fixed by Article 202, and the mother could not therefore inherit from such child. In a later case, Murdock vs. Potter, 155 La. 146, 99 South. 18, the court has expressed different and contrary views on this proposition. In that case the court said:

“The definition of the word ‘bastard’, found in Article 202 of the Civil Code, is qualified by Articles 203 and' 922, quoted above. When the three articles are construed together, it is clear that a mother may acknowledge her illegitimate child whether or not the father is willing to acknowledge or has acknowledged the child.”

It is clear from the reasoning in this later decision that the “bastardy” attaching to the child is removed when he has been acknowledged by the mother alone, and when the father has not acknowledged him in any manner whatsoever. From the language used in the Succession of Lacosst, 142 La. 682, 77 South. 497,, if the court had there reached the conclusion as to the articles of the Civil Code which control on this subject to which it subsequently arrived in the later case above cited, we have no doubt it would have held in the Lacosst succession, though it was the mother who was claiming the estate, that she was entitled to inherit from her son under the provisions of Article 922. Counsel for opponent relies mainly on this decision, 142 La. 682, in support of the judgment rendered below in favor of Joseph Falls, the surviving husband. In the light of the more recent decisions on this vexed question, it is now recognized by our Supreme Court that the mother - who has acknowledged her child, and independently of the father, is entitled to inherit his estate under Article 922, when he dies without posterity, because when so acknowledged the status of the illegitimate offspring has been converted into that of a “natural child” by the effect of such acknowledgment. We therefore hold that the deceased, having died intestate and without issue, her estate reverted to her mother by whom she' had been legally acknowledged. The lower court was therefore in error in holding that the share of the deceased wife in the community property passed by inheritance to Joseph Falls, her surviving husband, under Acts 57 of 1910, 80 of 1916. The court was also clearly in error in decreeing the separate estate of the wife to Joseph Falls, as under the provisions of said acts he had no right whatever of inheritance to her separate property. Succession of Greenlaugh, 148 La. 255, 86 South. 786.

It is therefore ordered and decreed that the judgment appealed from be avoided and reversed, and that plaintiff, Mary Bingham, have judgment decreeing her the owner and entitled to the possession of the share of Simonette Reason Falls in the community heretofore existing between her and Joseph Falls, surviving husband, or to an undivided one-half thereof, and to the ownership and possession of all of the separate estate left by said deceased, Simonette Reason Falls, and that opponent pay all cost of this suit.

LECHE, J.,

dissenting:

In this case as in the Lacosst case, 142 La. 673, 77 South. 497, it is the mother who is claiming the inheritance and I am not aware of any law authorizing the mother to inherit from her illegitimate child unless she had, during such child’s lifetime, acknowledged the same in the formal manner provided by Article 203 of the Civil Code. It is true that under Article 193 et seq., C. C., providing for proof of filiation, other modes of acknowledgment are permitted, but such acknowledgment is for the benefit of the child as against its parents, and 'not for the purpose of benefiting the parent. The child is helpless to force a formal acknowledgment in its behalf by its parents.

The parents are in an entirely different position and it is solely in their power, and within the free exercise of their volition and discretion, to legitimate their illegitimate offspring. It would be unjust to penalize the child for a wrong committed by its parents, and of which it is only the innocent victim. Hence the purpose of the lawmaker in enacting the provisions in the Civil Code permitting other than formal proof to establish filiation, and in limiting this mode of acknowledgment for the benefit of the child.

It is my understanding of the law and of the jurisprudence that in order to inherit from an illegitimate child, the mother must ‘first have made, during the child’s lifetime, a formal acknowledgment, but that other modes of acknowledgment may be resorted to, when the illegitimate child claims the right of inheritance from its mother. To this effect is the decision in the Lacoste case as well as in the case of Briggs vs. McLaughlin, 134 La. 133, 63 South. 851. The case of Murdock vs. Potter, 155 La. 146, 99 South. 18, in no manner conflicts with this view.

I therefore dissent.


author: MOUTON, J. LECHE, J.

text:
    No.—
    First Circuit Appeal
    J. SIMIUS GUILLORY v. OLEPHUS L. FUSELIER
    (June 30, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest^Evidence — Par. 58, 59.
    The burden of proof is on the defendant to show his special defense that he shipped rice. to New Orleans at the instance and direction of the party who had deposited it in his warehouse without causing the surrender of the warehouse receipts.
    2. Louisiana Digest — Appeal—Par. 625.
    The finding of the trial judge, which is amply supported by the testimony, facts, and circumstances, being eminently correct, is affirmed.
    Appeal from the Parish of Evangeline, Hon. B. H. Pavy, Judge.
    This is á suit in which the plaintiff as assignee ■ of warehouse receipts of the defendant sues for the value of the rice represented by these receipts. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Dubuisson,. Perrault and Burleigh, of Opelousas, attorneys for plaintiff, -appellant.
    L. A. Fontenot, of Opelousas, attorney for defendant, appellee.
    ELLIOTT, J. Dissents with reasons.
    LECHE, J., Concurs with reasons.
   MOUTON, J.

Theovide Guillory deposited in September, 1920, 103 sacks of rice in the warehouse of Fuselier, defendant, situated in Mamou; and, in November, 1920, Oscar Ledoux deposited there, ■ 155 sacks. Defendant issued receipts for the rice to the depositors. Plaintiff, as assignee of these receipts, sues defendant .warehouseman, for the value of the rice so deposited by his assignors, Guillory and Ledoux, alleging that ’defendant had refused to make delivery of the rice, claiming that it had been sold at the request of Guillory and Ledoux. The demand of the plaintiff was rejected and he appeals.

The receipts not being marked across their face “not negotiable” or “non negotiable”, plaintiff alleging that .he bought them in good faith, supposing they were negotiable, claims that he, may, at his option, treat them as imposing on the warehouseman • the • same liabilities . he would have incurred had the receipts been negotiable.

Counsel for plaintiff say in part, quoting “The receipts in this case were ignored by the warehouseman, who delivered the goods, or rather, shipped them ■ out without causing the surrender of the. receipts. His defense is that he shipped the rice to a mill in New Orleans at the instance and direction of the parties who bad deposited the rice in the warehouse and who had negotiated the receipts, to plaintiff. As to that defense, the burden of proof is on the defendant”.

This presents the vital issue in-the case.

Hilaire Guillory, a witness for defendant, says, that he sent wagons to Theovide Guillory’ to take his rice to the defendant’s warehouse.' He says,' Theovide knew the rice was to be shipped to the mill,' because he told him so, and that when' he so informed him, Guillory said “it was all right”. True, this witness says he did not see the rice carried to the warehouse, but he is certain Theovide was willing to have it taken there, and thereafter to have it shipped to the mill.

Dolsay Guillory, a brother to” Hilaire, above named witness, says, he had told Hilaire to tell Theovide to haul his rice to town from where it could be shipped, as he had no place to put It under shelter. This testimony of Dolsay explains the reason of the message delivered to Theovide by Hilaire. Meance Vidrine, another witness fpr defendant, says, Theovide Guillory had authorized him to say to defendant he was -willing to have his rice shipped. He says, ten or twelve days thereafter, defendant asked him if he could ship Theovide Guillory’s rice, to which he then answere.d he was without authority to say that he could, hut he. says that Guillory had not, however, countermanded 'his first order. Defendant is positive that Theovide Guillory told him to do the best he could with his rice; and that shortly before the rice was shipped, he met Guillory on the road, and..there got his permission to ship the rice. From the testimony of Hilaire Guillory and Meance Vidrine it is apparent that Theovide Guillory desired to have his rice shipped as he was not in a position to take care of it for lack of shelter. It is also well established by the record that at that time there was an abundance of rice for which there was no sale on the market. This condition of affairs had brought on a situation which made it extremely difficult for the planters to dispose of their rice. In order to assist the planters to dispose of their crop, it is shown that the rice was pooled, and was sent to the mills where it was cleaned, and sold for their benefit. After deducting the necessary expenses, returns of the sales were made and the balance distributed to the respective owners of the rice.

As there was no way of selling rice at that time in Mamou or vicinity at any reasonable figures, it can be reasonably inferred that the planters, including Guillory and Ledoux, were more than willing to have their rice shipped and sold at the mill .on the pooling arrangement which gave them a chance to realize a decent price for their ricé. As this condition of affairs existed, we fail to see why the statement of defendant and the two other witnesses in reference to the willingness of Guillory and Ledoux to have the rice shipped to the mill, should not be believed. Defendant is postive that Ledoux gave him orders to ship the rice he had deposited at his warehouse. L. M. Couvillon, cashier of the Farmer’s State Bank of Mamou, says, Ledoux cashed a check at his bank for $232.75, drawn against the proceeds of the rice which defendant. had shipped for him to the mill and sold. This amount, he says, was drawn after the account of sales had been turned over to Ledoux. This check was drawn by the cashier, and which, Ledoux, not knowing how to write, endorsed ,by making his cross-mark. Rougeau signed the check as a witness to the endorsement. He says, he saw when Ledoux signed, and tfiat the amount was paid over to him in money, by the cashier. Guillory and Ledoux deny that they ever consented to have the rice shipped, and Ledoux denies that he ever signed the check or received a cent from the bank.

Obviously, the district judge found that the rice had been shipped and sold, with their consent or permission, and that Ledoux had also received payment for the amount which had been, realized from the sale of his rice. We find that this conclusion of the trial judge is amply supported by the testimony, facts and circumstances of the case, which justified the rejection of the demand.

Affirmed.

LECHE, J.

Concurring:

According to the decision of Brock vs. Atteberry, 153 La. 649, 96 South. 505, the plaintiff in this case, holding a non-negotiable warehouse receipt, stood, when he made demand upon defendant, in the shoes of his transferrers, Guillory and Ledoux.

The question of fact, whether defendant had delivered or returned the rice to Guillory and Ledoux, or accounted to them for its value, was decided in the affirmative by the trial judge and I see no error in that finding. If then, defendant could not be held liable towards Guillory and Ledoux when plaintiff made demand, neither could he under the cited decision, be held liable towards plaintiff.

I therefore concur in the decree written by my associate, Judge Mouton.


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    No. 5772
    First Circuit Appeal
    CASS FRANKLIN v. ERNEST ROGER CO., LTD., (In Receivership)
    (June 30, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest-r-Master and Servant —Par. 159.
    A very serious injury to an employee’s hip, back, leg, knee and foot which required a plaster cast for sixty days which resulted in a permanent injury to the hip which required a hip brace, will justify a judgment under Section 8, Subsection 1 (b) of the Workmen’s Compensation Act No. 20 of 1914, during the period of disability, not exceeding four hundred weeks.
    2. Louisiana Digest — Master and Servant —Par. 159.
    An injury to an employee who was a laborer but since the accident, will only be able to do very light work of a different kind than he was accustomed to doing, is sufficient injury to be considered a permanent total disability within the meaning of Section 8, Subsection 1 (b) Act No. 20 of 1914.
    (The recent amendment of Section 8 of Act 20 of 1914 is Act 216 of 1924. Editor's note.)
    3. Louisiana Digest — Master and Servant —Par. 160 (e).
    Under Section 20 of the Workmen’s Compensation Act No. 20 of 1914 as amended by Act 38 of 1918 a judgment granting compensation may be reviewed if the condition of the injured party justifies it.
    Appeal from the Twentieth Judicial District Court of Louisiana, Parish of Lafourche, Hon. Robert P. Butler, Judge.
    This is a suit by an injured employee for compensation under the Workmen’s Compensation Act No. 20 of 1914. There was judgment for plaintiff and defendant appealed.
    Judgment amended and affirmed.
    H. Pelletier, of Thibodaux, Feitel and Feitel and N. H. Polmer, of New Orleans, attorneys for plaintiff, appellee.
    Howell, Wortham and Howell, of Thibodaux, attorneys for defendant, appellant.
   ELLIOTT, J.

Cass Franklin, an employee of Ernest Roger Co., Ltd., now in the hands of a receiver, alleges that while in the employment of the defendant he received an injury which permanently and totally disabled him from doing work of any reasonable character. He claims of them compensation at $6.30 per week, for four hundred weeks, subject to a credit of sixty-two weeks, which has been paid.

Defendant for answer admits that plaintiff met with an accident on November 24, 1923, and after receiving medical attention at Thibodaux, was sent to a hospital in New Orleans, where he remained for sixty days with his hip in plaster cast and was afterwards provided with a hip brace.

Defendant alleges that plaintiff has recovered from his injuries and is now able to do work of a reasonable character, and has been since February 13, 1924. That no further compensation is due the plaintiff; that all compensation to which he w;as entitled under the law has been paid to him.

The district judge, giving reasons, awarded plaintiff compensation for three hundred weeks, subject to credit of sixty-two weeks received. Defendant appealed.

The plaintiff in answer to the appeal prays that the judgment appealed from be amended, by allowing him compensation for four hundred weeks, under Section 8 of Act 20 of 1914, paragraph (b) of said Section, which provides: “For injury producing permanent total disability to do work of any reasonable character, 60 per cent of wages during the period of disability, not however, beyond four hundred weeks”.

Defendant contends on appeal as per letter in the record of September 27, 1923', that plaintiff’s compensation should be fixed as if he had lost a leg; under Act No. 43 of 1922,- which provides: “The permanent total loss of the use of a member shall be equivalent to the amputation of the member”. The Act provides that for the loss of a leg the compensation shall be for one hundred and seventy-five weeks.

The averment in defendant’s answer that plaintiff has received all the compensation to which he is entitled, is untenable and we do not give it further notice.

The district judge in his reasons for judgment, states that plaintiff is an ordinary manual laborer; that it was admitted or fairly established that because of his deficiency of education and lack of training, he is unfitted and unqualified to earn wages other than by unskilled manual labor. He was satisfied that plaintiff’s leg was worse than useless to him; that plaintiff would be better off -physically if he were not encumbered with it; that the necessity of caring for and handling his crippled limb could not but hamper him in the performance of any manual labor that he might undertake; that plaintiff was a total disability as to manual labor; that his disability might not prove to be permanent, but at present it is total. Time may prove it to be otherwise. That plaintiff’s present chief trouble is in the hip joint, he complains of pain in his hip and back; that the honesty of the claim was not challenged by the physician.

That so long as plaintiff’s condition persisted he not only suffered substruction of the use of his leg, but was in addition,' burdened with a hip or back discomfort which would not be taken into account were he regarded as having only lost a leg.

Th.e evidence shows that plaintiff was injured November 21, 1922. The case was not tried in the lower court until January 6, 1925, more than two years after-wards.

At the time plaintiff was injured he was employed by defendant as a brakeman on a plantation locomotive, pulling cars loaded with cane.

The plaintiff, as a witness in his own behalf, says that he has not tried to work since his injury because he was not able to work. That he is not able to bend because it hurts his back and hip; that he was fitted with a hip brace but could not use it because it pained him; that he can not raise his knee. He can bend his leg with help, but .can not tie his shoe.

Plaintiff’s contention that his hip is injured is supported by the averments in defendant’s answer that he “remained for sixty days with his hip in plaster cast and was afterwards provided with a hip brace” and by defendant’s letter to him of March 13, 1924, which says: “Dear Sir: Under date of February 19, 1924, the Union Indemnity Company of Louisiana advised us that their medical unit finds that with a properly fitted Caliper Brace to your limb you would be able to do some work of a light nature, and as we have no work of that nature for you, we would advise you to try to find some. We understand that this brace has already been purchased for you, therefore we think it is perfectly fair for you to get some kind of light employment”.

The averments in defendant’s answer and statement in the letter quoted is supported by the testimony of Dr. Barker, who examined, plaintiff at the time he was injured and found apparent injury to his hip, back, leg, knee and foot. He was then sent to the hospital and his hip was placed in'plaster cast for sixty days. His hip was permanently injured, because he was fitted at the hospital . with a hip brace.

Defendant’s letter of March 13, 1924, admits the permanent injury to plaintiff’s hip. It states that by using a Caliper Brace properly fitted, he will be able to do light work of some nature. Dr. Barker examined plaintiff again .the day before the trial, and states that as more than two years have elapsed and the fractures not having united, they are not going to unite; that plaintiff is a permanent total disability insofar' as concerns manual labor; that for the future he will have to learn something he can do, sitting down.

Dr. Geismar examined plaintiff before the trial and pronounced the injury to his hip and leg as permanent total disability insofar as concerns manual labor of any reasonable nature. He says that the Caliper Brace will not help him.

Dr. Menendez physician for Union Indemnity Company and receiving from them a salary, examined plaintiff in 1924. He does not think plaintiff so badly injured; thinks he could use his hip and can resume work.

We regard the admission of serious injury to plaintiff’s hip, in defendant’s answer and letter, and the testimony of Drs. Barker' and Geismar supported by the personal observations of the district judge, as conclusive proof of permanent injury to plaintiff’s hip and leg. Sec. 18, Clause 4, Act 20 of 1914 (amended Act 234 of 1920) provides that: “The judges shall decide the merits of the partnership as equitable as may. be” and Sec. 20 (amended Act 38 of 1918) provides that judgments of compensation may be reviewed by the courts on the application of either employer or employee, if the incapacity of the injured party changes.

The language “Permanent total disability to do work of any reasonable character during period of disability” in the legislation in question does not mean ■ that the party must be unable to do any kind of work, but means permanent total disability to do work of any reasonable character that the party knows how to do and is capable of doing, which will afford him a support for himself and family.

In this case we do not know plaintiff’s age, nor whether he has a family, but due to his station in life, his work in the past has required him to stand, to walk forward and backward, stoop, bend his knee, leg, lift, push, use his leg, hip and back; and we are satisfied from the evidence that in all probability he will never be able to do that kind of work again.

He may some time in 'the' future learn to do some other kind of work, which can be done sitting down, and obtain employment and earn something at it, but accomplishment along any new line of labor of this kind is uncertain. The evidence does not indicate anything in that direction. At the present time his capacity for work in any line in which he is capable of working and earning a support for himself and family,, if he has one, is a permanent total disability, within the sense and meaning of the law.

In Myers vs. R. R., 140 La. 937, 74 South. 256, there is considerable appropriate language: In one part of the opinion the court says: “We have to hold therefore, that the disability of a workman who has lost the use of one of his legs from the hip joint down, is not necessarily total, since within the meaning of our said statute many lines of work are open to a man in that condition. Inasmuch, however, as up to the time of the trial the plaintiff had been unable to do work of any kind, he was up to that time totally incapacitated, and this incapacity will continue as long as healing process of nature shall not have been so far accomplished as will enable him to do manual labor of some kind”.

The court gave judgment as for total disability. We shall affirm that judgment.

The court further cited Sec. 20 (amended Act 88 of 1918) compensation law according to which judgment may be reviewed at the instance of either party, if the condition of the injured party justifies the same.

The case we have in hand is a much more serious injury than was sustained by the party in the case cited. In that case it does not appear from the opinion that the hip was injured. In this case the evidence shows a permanent injury to the hip, which will remain even, if the leg is amputated, and satisfies us that plaintiff's injury should be classed as permanent total disability to do work of any reasonable character; and that he is entitled to 60 per cent of the wages he was receiving at the time of his injury, during the period of disability, not, however, beyond four hundred weeks.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended, by fixing plaintiff’s compensation at $6.30 per week, for a period not exceeding four hundred weeks, from November 24, 1922, subject to a credit for sixty-two weeks already paid, and that each weekly payment past due, bear legal interest; and that each over due future payment bear legal interest as fixed by the district judge.

And as amended, the judgment appealed from is affirmed; that defendant and appellant pay the cost in both courts.

LECHE, J. Is of the opinion that the judgment appealed from should be affirmed.


text:
    No. 6968
    First Circuit Appeal
    ABRAHAM DAVIS v. SAM FIGARO
    (June 12, 1925, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 429, 430, 594.
    On the appeal by the defendant of a judgment taken by default there was no suggestion of error nor any note of evidence. The court of appeal therefore presumes the judgment of the lower court to be correct and affirmed the judgment of the lower court, dismissing the appeal.
    Appeal from the Twenty-fifth Judicial District, Parish of Tangipahoa, Hon. Columbus Reid, Judge.
    This is an' appeal from a judgment on an injunction enjoining a sale under a judgment by default. The record is incomplete.
    Therefore the judgment appealed from is affirmed.
    Joe Rosenberg, of New Orleans, and W. H. Houghton, of Kentwood, attorneys for plaintiff, appellant.
    Kemp & Buck, of Amite, attorneys for defendant, appellee.
   ELLIOTT, J.

The plaintiff, Abraham Davis, instituted executory proceedings against defendant, Sam Figaro, the object and purpose of which was to have the tract of land with the buildings and improvements thereon described in plaintiff’s .petition seized and sold to pay three mortgage notes described in the petition and annexed .thereto, amounting in the aggregate to $500.00 with interest and attorney’s fees and said to be accrued by mortgage on said property.

The defendant, Figaro, enjoined the sale alleging in his petition that Davis did not own the notes sued on; was a possessor of same in bad faith and holder in collusion from A. Becker; that the notes had been paid and Becker had no right nor title thereto and therefore could not convey any right to Davis. The record shows that Davis was duly- cited to answer the petition of said Figaro; that no answer was filed by said Davis and a judgment by default was entered in favor of Figaro and confirmed and signed by the judge.

Davis appealed, but has not filed a brief, nor suggested any error and the record contains rio note of evidence.

We have examined the record and do not, find any error by which it can be said that the judgment should not have been rendered.

In such cases we are unable to do more than affirm the judgment appealed from.

For the above reasons the judgment appealed from is affirmed, the said Davis to pay the cost of both courts.