text:
    No. 9140.
    Volcy Amet, Wife et al. vs. J. A. Boyer, Administrator. Same vs. J. A. Boyer, Tutor. Same vs. A. L. Boyer, Tutor.
    Where parties to several suits pending submit their differences to an amicable compounder, with a stipulation that the suits are withdrawn and considered as not filed, the issues in the suits are not open to judicial determination, notwithstanding there is a provision in the act of submission for an appeal. The finding of the amicable compounder cannot be reviewed for errors of fact or law, but only when he is charged with exceeding his authority, or irregularity in his proceedings,
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Oullom, Judge ad hoc.

      Thorpe, Peterman & Thorpe; A. H. Bordelon and JE. Sabourin for Plaintiff and Appellant.

      Albert Voorhies for Defendants and Appellees.
   The opinion of the Court was delivered by

Todd, J.

These three cases have, by consent of parties, been cumu-lated and submitted as one cause.

They are closely connected and have grown out of oppositions filed by the plaintiff herein to accounts respectively of the administration of her father’s succession, to that of her former tutor and to one of the tutorship of her deceased sister, Laure Amet.

During the pendency of this litigation, the parties agreed to submit their differences to the decision of an amicable compounder.

The following is the agreement:

“ In order to dispose of all differences and disagreements between the undersigned heirs of succession of Palmyre Boyer and Eugene Amet, growing out of the settlement of said successions and the administrators and tutors of said heirs, and in order finally to settle said successions, without litigation, they hereby agree:
“ 1. That A. L. Boyer returns to said heirs the thirty-seven and one-half acres of land, bought by him in 1878, and that said sale to him is hereby annulled, reserving to A. L. Boyer all rights he had, or may have had, at the time of sale of said land.
2. In consideration of the foregoing, all matters now in dispute and in litigation between the said heirs and the said A. L. Boyer and J. A. Boyer, administrator and tutors aforesaid, shall be referred to and are hereby referred to an arbitrator, who shall be clothed with the powers of an amicable compounder, authorized to settle all accounts between them, and matters growing out of the administration of the aforesaid successions and tutorships ; it being the intent a/nd purpose of this submission that the accounts of said administration and tutorship shall be settled in a spirit of fairness and liberality to all parties; and, to this end, the arbitrator aforesaid is cmthorieed, i/n settlement of said accounts, to abate from the strictness of the law.
3. It is agreed that all suits and final tableaux growing out of or connected with said successions, shall be withd/rawn and treated as not filed.
“4. It is further agreed that the within submission shall have the effect of a transaction or compromise, entered into for the purpose of avoiding litigation; and that the matters herein, to be adjudicated upon shall be referred to Hon. A. B. Irion, who is hereby agreed upon as the party who is to act as arbitrator, from whose decision such pa/rty shall have the light to cun appeal to the Supreme Oowrt of this State.
It is further agreed that said arbitrator shall make his return at his earliest convenience, giving time and notice to the parties hereto, of the day upon which he will hear them, or their attorneys, in support of their respective claims.”

An award was made in due time by the amicable compounder or arbitrator named, the nature or substance of which it is unnecessary to state.

After the award was made plaintiff took a rule on the defendants, before the district court, to have the same homologated and made the judgment of the court.

This was opposed by the defendants on several grounds, which, on trial, were overruled and the rule made absolute, and the award ho-mologated.

Thereupon, the plaintiff took an appeal from this judgment homolo-gating the award, which is the one before us.

The counsel for the defendants and appellees opposed any review by this Court, of the merits of the original controversy between the parties, upon the ground that the finding of the amicable compounder upon all matters of fact and law submitted to him was, under the law, final and conclusive, and, for .the further reason, that the plaintiff and appellant had expressly ratified and approved the award by her petition or rule taken for its homologation, and that the only matter that could be considered by us was whether the judgment of homologation was in conformity to the award.

The contention of the plaintiff and appellant, on the other hand, is that the right of appeal to this Court was expressly provided by the terms of the agreement, and the rule taken for the homologation of the award was mainly for the purpose of procuring a judgment thereon, from which the plaintiff could ajjpeal, or in other words, as a preliminary step to the exercise of the right to appeal reserved to her in the agreement for submission.

It is certain that the person to whom the differences of the parties were submitted for settlement was expressly clothed with all the power and authority of an amicable compounder, and it is equally certain that, in the absence of any restrictive clause, his finding cannot be altered or reviewed by any court, save and except where it is charged and appears that the compounder has transcended his authority or has proceeded irregularly in the discharge of his duties. C. C. 3110; C. P. 459, 460 ; 31 A. 336, and case Board Admins, vs Riddell, recently decided but not yet reported.

It is, however, contended that such restrictive clause is found in that part of the agreement which reserves to the parties an appeal to this Court, and that the agreement for submission must be considered as a whole.

Tt might be argued that the clause or reservation in question was not intended to contravene the law, with respect to the power or authority of amicable compounders, or to lessen the effect that the law would ascribe to their award as to all questions submitted to them, but only to affirm the right to an appeal to a court where they, the com-pounders, had been charged with usurpation or irregularity in their proceedings. Without such affirmative expression, the right of appeal for such purpose and to this extent would exist and could be expected. The law concedes it without any agreement.

But a reference to another Clause in the act' of submission removes all doubt as to the intentions of the parties on this point, and affords conclusive evidence that it was not their design to limit or diminish the legal effect of the duality of the award by their agreement, as to the law or the facts, or to enlarge the scope of any judicial review or determination with respect to the award, and that clause is the third one in the act, which declares “that all suits and -final tableaux growing out of or connected with said succession shall be withdrawn and treated as not filed.”

The suits and tableaux referred to are the identical ones which are now presented to us by the appellant for our review and determination. How can we consider them or the issues they involve, when the parties themselves have, withdrawn them and treated them as not filed ?

Whatever the award might be it is manifest that the controversy between the parties, as it existed under the proceedings, suits and pleadings mentioned, had ended forever and could not be revived by the award, nor thereafter made subject of judicial determination, by appeal or otherwise. Even the amicable compounder himself in the face of this agreement, in dealing with the differences of the parties, was not bound by the proceedings nor confined to the issues therein specially raised. Besides, by an express stipulation in the agreement, the submission itself was to have the effect of a compromise or transaction which ended the controversy raised by the suits.

Under this view of the case, it is clear that we cannot proceed to the investigation of matters of controversy involved in suits and proceedings which the parties themselves have dismissed and, therefore, no longer exist.

The only question we find open for our consideration and determination is whether the judgment appealed from is in accordance with the award and whether the amicable compounder transcended the limits of his authority or was guilty of any illegality or irregularity in his proceedings.

• After an attentive examination of the record, we are brought to the conclusion that the judgment exactly conforms to the award as it simply homologates it and that the amicable compounder, in passing on and adjusting the differences of the parties, seems to have kept within the terms of the submission and the restrictions of the law.

In fact, he is not charged by either party with any dereliction in this respect, the complaints against the award being confined to alleged errors of fact.

The judgment appealed from is, therefore, affirmed, with costs.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 9159.
    Erwin & Riley vs. Hugh Carlisle.
    Tlie rulings of tlie lower court on questions of admissibility of evidence are apjn'oved. Questions of fact are involved and tlie evidence sustains the judgment.
    APPEAL from the Eighth. District Court, Parish of Madison. Delomj, J.

      J. B. Stone and A. N. Spencer for Plaintiffs and Appellees.

      J. C. Seale for Defendant and Apx>ellant.
   Tlie opinion of the Court was delivered by

Fenner, J.

This is a suit for levee work done by plaintiffs under contract with defendant.

The answer admits the contract, but denies that the work contracted for had been completed or that the amount of work claimed in the petition had been done, or that proper credits had been allowed for advances and supplies.

The evidence adduced by plaintiffs fully establishes the claim in every particular to the extent allowed by the judgment.

The defendant offers no evidence except:

1. A document purporting to be the estimate of W. H. Mitchell, signing as United States Engineer, which was objected to on the ground that the document was not proved either as to signature or capacity, and objection sustained.

2. A document purporting to be a copy of a letter alleged to be from Erwin & Riley to one Gordon; objected to on the ground that the original letter is the best evidence, and objection sustained.

3. An account of defendant against Erwin & Riley, which was admitted to the extent of the debits shown to have been admitted by plaintiffs.

Defendant excepted to these rulings of the court, but they are mani festly correct.

The defense is thus left without any support.

Judgment affirmed at appellant’s cost.


author: Manning, J.

text:
    No. 9160.
    Mechanics and Traders' Insurance Company vs. Temple S. Coons
    In a suit "by tlie payee of a check against the drawer, notice of presentment and of dishonor may he oral and verbal, but it must be proved. Presumptions and beliefs that such notices were given will not suffice. There must be certainty and exactitade of proof that they were given.
    A PPEAL from the Eighth District Court, Parish of Madison. _£ Jl JDelony, J.

      A. S. JBlaelc for Plaintiff and Appellee.

      J. H. Halsey and J. G. Seale for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The suit is upon a cheque for fifteen hundred dollars drawn upon the Louisiana National Bank by Temple S. Coons & Co. in favour of the plaintiff. The case was here last year when the plaintiff was non-suited.

The defense is want of presentment, and want of notice of dishonor.

The plaintiff took the depositions of its president and secretary to prove presentment and notice of dishonor. They do not prove either.

Mr. Coleman, the president of the Insurance Company, says: “The cheque was presented to the Louisiana National Bank by the Mutual National Bank, and I presume through the Clearing House. * * * I had a conversation soon after the refusal of payment of the cheque with Temple S. Coons and Capt. J. P. Smith, and expressed to them my regret that the cheque was not paid, and my hope that they would soon malee it good. * * * I gave notice of its non-payment to Capt. J. P. Smith, and I believe to Mr. Temple S. Coons, both of the firm of Temple S. Coons & Co., at their office in New Orleans, on the same day payment was refused.”

Now it turns out that Mr. Smith was not a member of the* firm of Temple S. Coons & Co., but only its cotton salesman, and notice to him is not notice to the firm, and he is the only person to whom the president swears with certainty that notice was given. There was so much incertitude about notice to Coons that the president, can only say he believes it was given. His deposition was taken after our dismissal of this case as of non-suit, because presentment and notice had not been satisfactorily proved.

Nor is he more positive about the presentment. The check was presented to the Louisiana National Bank by the Mutual National Bank, and he preswmes through the Clearing-house. He has no knowledge of the presentment himself and did not establish it by the Mutual National Bank who presented it.

The secretary never saw the cheque until six mouths after its date, at which time he became secretary, and knows nothing about it except what he has learned from the entries in the company’s books.

On the other hand Goons swears there never was any notice given him of the i>resentation or non-payment of this cheque, and the first knowledge he had of an indebtedness claimed by the plaintiff was the filing of the suit upon it. He says he may have had a talk with Mr. Coleman since this transaction, but not about this cheque as he can remember.

Parol proof of the presentment and notice of dishonor is sufficient when the suit is between drawee and payeev; Story Prom. Notes, § 341. But it must be made with certainty. Both are necessary, and if it be conceded that the proof of presentment may be sufficient, there is none of the notice of dishonor, and no attempt to prove that the drawer had no funds in the drawee’s hands, and had no right to expect payment of his cheque.

It is, therefore, ordered and decreed that the judgment of the lower court is reversed, and that there now be judgment in favor of defendant rejecting the demand of the plaintiff, and against the latter for costs.


author: Bekmttdez, O. J.

text:
    No. 9161.
    Marco Givanovitch and Heirs of Gallaugher vs. Hebrew Congregation of Baton Rouge.
    Unless tlie act from which the vendor’s or other privilege is claimed, as affecting real estate, he seasonably recorded in the proper mortgage book of the parish in which the property is situated, general mortgages previously registered (and even certain liens) will take precedence and be satisfied according to their respective rank.

      1 PPEAL from the Seventeenth District Court, Parish of East Baton . Kouge. Slierbwm, J.

      H. M. Fcwrot and Alfred Grima for Plaintiff and Appellant:
    The title to real estate passes absolutely, as to the whole world, by the act of sale thereof, be it recorded or not, subject to the rights of certain creditors. 35 A. 831.
    When one, by purchase, brings property into his estate, thereby increasing the common pledge of his creditors, the proceeds of a judicial sale of the said property must be applied to tlio payment of the balance owing to the vendor for the price of sale of the property before going to the satisfaction of other creditors.
    The assumption of the note of a vendor as a part consideration of the purchase price of real estate property carries a vendor’s privilege on the property. 35 A. 164; He l’lsle vs. Succession of Moss.

      O-1). Fmrot for Defendant and Appellee.
   The opinion of the Court was delivered by

Bekmttdez, O. J.

This is a contest for priority of payment out of the jiroceeds of the property of defendant, which was simultaneously sold under writs respectively issued by the contending creditors.

Marco Givanovitch claims that he is entitled to the vendor’s privilege, while the heirs of Gallaugher insist that their judicial mortgage ranks the privilege thus claimed.

From a judgment in favor of the judgment creditors, the present appeal is taken.

The following are the facts established by the record :

On the eighteenth of July, 1872, a judgment in favor of F. V. Gal-laugher stood recorded in the proper book, in the parish of East Baton Rouge, for $1330, against C. Delacroix.

On the first of October, 1875, more than three years later, Givano-vitch sold to Delacroix a piece of real estate in the same parish, part cash, part on time.

On September 12, 1876, Delacroix sold the same property to the Hebrew Congregation, who, in part consideration of the price, assumed Delacroix’ debt to his vendor.

The act of sale by Givanovitch to Delacroix was recorded in the mortgage and privilege book on the twenty-first of September, 1876.

The sale by Delacroix to the Congregation was recorded in the same book, on the sixteenth of the same month and year, (September, 1876) five days before the registry of that of Giranovitch to Delacroix. The judgment of Gallaugher was duly revived and reinstated and had full force and vitality, when the property herein was sold.

The question presented is simply: Whether the judicial mortgage securing Gallaugher’s judgment recorded on July 18,1872, shall or not take precedence over the privilege claimed by Givanovitch, whose act was recorded on September 21, 1876.

In the case of the heirs Gallaugher versus this same defendant, we had occasion to determine, after a full review of the law and jurisprudence, that a recorded judgment operates as a judicial mortgage on real estate acquired by the judgment debtor, though his act of purchase be not recorded, and that the judgment creditor could, by the hypothe-cary action, subject tbe property to the satisfaction of Ms judgment in case of the sale or transfer thereof. We also held, that the purchaser of the real estate thus burdened, liad no right to urge defenses against the judgment and mortgage which his vendor could not have set up. 35 A. 829.

In the case of Givanovitch versus this same defendant, in which the vendor’s privilege was asserted and claimed, we held, that the holder of the vendor’s note could sue directly the purchaser’s vendee, who had assumed the payment of the notes, whether the purchaser’s deed had or not been recorded. O. B. 57, fol. 188.

As no conflict had as yet arisen between the judgment creditors and the vendor, we studiously refrained from expressing any impression on the question of priority, which is now directly submitted for determination.

An attentive and thorough examination of the matter leaves no doubt in our minds, that the proceeds of sale must be first applied to the satisfaction of the judicial mortgage debt, which is first in point of time of registry, and that, whatever amount may thereafter remain, will have to be applied to the next ranking- mortgage claim.

We think it needless to review and reannounce exxflicitly the authorities, deeming a mere reference to them amply sufficient, as we have taken the pains to re-examine them separately and And them clearly decisive of the issue. ¡

They all accord that, unless the contract from which the vendor’s or other privilege is claimed to arise, was recorded seasonably in the proper book of the mortgage office of the parish in which the real estate is situated, general mortgages previously recorded, and even certain liens, will take precedence and be satisfied according to their respective rank. 6 A. 162; 7 A. 65; 12 A. 178; 18 A. 143; 20 A. 79; 23 A. 286 ; 24 A. 610; 26 A. 80; 27 A. 290, 243, 405, 461; 28 A. 305, 534; 29 A. 116, 412; 30 A. 727, 833, 1007 ; 31 A. 284; 34 A. 923, 1131: 35 A. 829.

As concerns the ruling in Rochereau vs. Colomb, 27 A. 337, to which our attention is called, we can only reiterate what we said touching it in the last case.

The authority invoked of de l’Isle vs. Moss, 35 A. 165, is well entitled to the respect which is claimed for it, but it cannot avail Givanovitch, as it recognizes in a vendor the privilege which secures payment of the price, with priority over the purchaser’s creditors, only where the act mentioning it has been seasonably and properly recorded.

We find no error in the judgment appealed from, which is affirmed, with costs.

Todd, J. takes no part.


author: Poché, J.

text:
    No. 9119.
    The State of Louisiana vs. Jackson Lawson.
    The trial judge, in a criminal case, is Tested hy law with the discretionary powers to discharge jurors already empaneled in the case and to reassign the cause for another day, if he believes that there is a necessity for such ruling, and that the ends of justice will he best subserved bv such a course.
    The belief of the judge, apparently well founded, that the jurors already selected and sworn had been illegally drawn, is manifestly a reason to justify such ruling.
    APPEAL from the Twelfth District Court, Parish of Rapides. Blackman, J.

      J. O. ligan, Attorney (4eneral, and E. G. Hunter, District Attorney, for the State, Appellee.

      W. W. Whittmgton, Jr., fox Defendant and Appellant.
   The opinion of the Court was delivered hy

Poché, J.

The defendant appeals from a conviction of murder, without capital punishment, and he seeks relief on the following grounds:

1. That the district judge erred in discharging seven jurors who had already been empanelled for his trial, and in ordering the case to he reassigned for another day.

The record shows that under the authority vested in him hy Section 7 of Act 44 of 1877, the judge had ordered the drawing of twenty additional jurors to report instanter. This trial began on the 23d of the same mouth, and proceeded to the point stated above, when the judge discovered that tlie names of the additional jurors had not been placed in the box.

Believing that the formation of the jury, without that formality, had been vitiated, the judge discharged the seven jurors already empanelled, and directed the trial to proceed after causing the names of the additional jurors to he placed in the box. The accused then objected to go on with the trial before' service on him of the list of the additional jurors. The judge, therefore, adopted the only alternative left him, and ordered the trial to he re-set for another day.

The gist of defendant’s complaint is that the judge had no power or authority to discharge the seven jurors, already empanelled, without his consent. His counsel argues that, hy the course of the judge, the accused, who had Ms witnesses present, lost his opportunity of a fair trial and was deprived of his constitutional right of a speedy trial.

The question is not entirely new in our jurisprudence; it was reviewed at great length in the case of the State vs. Costello, 11 A. 283, in which the doctrine previously recognized by this Court was reaffirmed.

The doctrine is that such a ruling is within the discretion of the trial judge, when, in his opinion, an evident necessity arises for the discharge of the jury.

Tn the case referred to, the entire jury was discharged for reasons satisfactory to the district judge and sanctioned by this Court.

Tn the present case, the circumstances stated above, not only conferred the right to the judge, but made it his duty to discharge the seven jurors already enyjanelled.

The argrunent that the accused was thus deprived of a speedy trial is without force and does not strike as being even serious. Had his present complaint prevailed, his trial would be still further procrastinated.

2. 1-Iis second objection grows out of the trial in which he was con. vieted, and charges error to the order of the judge in directing that the-names of the additional jurors, drawn under his order, be placed in the same box with the names of the regular jurors.

A similar objection was made and considered in the case of the State vs. Brooks, this day decided, and for the reasons announced in that case, the objection is overruled in this case.

The record shows that the defendant has had a fair and impartial trial, hence, we shall not disturb the verdict.

Judgment affirmed.


author: Todd, J.

text:
    No. 9153.
    Isaac Friedler vs. Mrs. S. M. Chotard and Husband.
    "Where a contract stipulates, in substance, that one of the parties may remain on and cultivate a plantation named therein, and pay annually for certain designated years, in lies of rent, a sum equal to the interest or the property, the obligee may recover said amount, but is not entitled to the lessor’s privilege.
    The determination of the question of the obligor’s liability therefor, does not necessarily involve the determination as to the character of che entire contract, or whether it is a vente a remaré or a common law mortgage.
    APPEAL fuom the Ninth District Court, Parish of Concordia. Sough, J.

      E. S. White and Steele & Qwrett for Plaintiff and Appellant.

      James G. Leach for Defendant and Appellee.

      Wade B. Young as Amicus Ourice.

   The opinion of the Court was delivered by

Todd, J.

This is an action to recover eleven hundred and sixty-seven dollars and sixty cents alleged to be due for the rent of a plantation, described in the petition and for a recognition of tbe lessor’s privilege and right of pledge on all the effects found on the leased premises.

The defendant denies the lease and resists payment on many grounds unnecessary here to enumerate, and sets up a reconventioual demand for a large sum.

The reconventional demand was dismissed in the court below and judgment rendered for the debt with ñve per cent interest thereon, rejecting the claim for a recognition of the lessor’s privilege and pledge.

From this judgment the plaintiff has appealed. The defendant has not asked an amendment of the judgment touching her reconven-tional demand, and this demand and all the matters urged in the answer in support of it are, therefore, eliminated from the case

Tn supx>ort of his pretensions, the plaintiff offered in evidence an instrument which he claimed evidenced a sale to him of the plantation by the defendant, with the right of redemption, but which the defendant contends is only a common law mortgage, given as security for the loan of money.

Considering the nature of the demand, and that it is confined solely to the recovery of the alleged rent and a recognition of the privilege and pledge stated, and that these constitute the sole issues proper for determination, we do not feel called on in this case to pronounce on the character of this instrument, or decide the various questions discussed in the pleadings and arguments with reference thereto.

We find a clause in the writing mentioned to the following effect:

“It is further understood between the parties of the first part and the party [of the third part] that the said Mrs. Chotard shall be permitted to remain on the said plantation and cultivate the same, that she shall keep the same in good repair and pay all the taxes due or to become due thereon, as long as she shall remain on said premises. That she shall pay annually on the first days of January, 1883, 1884, 1885 and 1886, respectively in lieu of rent, an amount in cash equal to eight per cent per annum interest on the purchase price hereof.'”

Tt is very certain that, whatever may have been the nature of the contract between the parties under the entire instrument, this part obliges the defendant in unmistakable terms to pay to the plaintiff certain amounts annually during the years named, but not as rent, but in lieu of rent, and these amounts to equal eight per cent interest on the sum named in the contract as the price of the property. By reference to that sum stated elsewhere in the instrument, the amount claimed in this suit is the amount of the interest due on that sum when the suit was instituted.

The clause above quoted forms a complete obligation or contract in itself, and may be considered independently and apart from its context or the entire instrument, for whether that instrument imports a vente a remere, or a mortgage, there is nothing in the stipulation that is necessarily destructive of the one character or the other imputed to it respectively by the parties.

We, therefore, concur with the district judge, that the plaintiff under the express terms of the contract, is entitled to recover this amount, hut has no just claim to a privilege or pledge.

Judgment affirmed, with costs.


text:
    No. 9130.
    R. T. Scott, Administrator vs. T. Warren Briscoe et al.
    ■Where an heir, who is administrator, joins with his co-heirs in mortgaging the property of the ancestor, this operates an unconditional acceptance of the succession. Whatever may he the rights of creditors, such an heir cannot thereafter, on his own motion, resume the capacity of administrator and oppose the title of the mortgage creditors, derived from a sale, under foreclosure, of the mortgage against the heirs. He is estopped.
    APPEAL from the Eighth District Court, Parish of Madison. Delowy, J.

      J. G. Hwwlces for Plaintiff and Appellant.

      J. H. Stone for Defendant and Apjmllee.
   The opinion of the Court was delivered by

Fenner, J.

Upon the death of Robert M. Scott, his son, the present plaintiff, qualified as administrator in March, 1873.

In June, 1873, the plaintiff, together with all the other heirs of R. M. Scott, borrowed from the defendant, T. Warren Briscoe, who was then a minor and under the tutorship of the very plaintiff, $5000, and secured the same by mortgage upon the Scotland plantation belonging to R. M. Scott’s succession.

Subsequently, Briscoe brought suit and recovered judgment against the heirs with recognition of the mortgage, under which the Scotland l>lantation was seized and sold and bought in by the present defendants

Now, R. T. Scott, in the alleged capacity of administrator of R. M. Scott, brings this suit to annul the said sale upon the grounds, amongst others, that the property belonged to the succession and that the proceedings, under which the sale was made, were had without making the administrator a party.

The defendants interposed the exception of no cause of action and the plea of estoppel, which were sustained by the judge a quo.

The act of the heirs in granting the mortgage was an unequivocal and unconditional acceptance of the succession, the validity of which cannot be disputed by them. C. C. arts. 988, 1009.

On such acceptance, they had the right to take possession of the property, subject to the provisions of art. 1012. C. C. arts. 874, 3671.

There were no “movable legacies,” provided for in art. 1671; nor does it appear that the property of the succession was “in suit,” or that there were “ any claims pending thereon or in court,” or that any creditor has ever called on them to give bond, as indicated in art. 1012, and creditors have not demanded a separation of patrimony under arts. 1444 to 1456.

No obstacle, therefore, existed to the administrator’s giving and to their receiving possession of the property.

The act of the person who was administrator, in joining in the act of mortgage, was a waiver of all objections on his part and an acknowledgment of the title and possession of Hie heirs. He might have demanded, but did not demand judicial order before delivering possession. He was himself an heir and was himself one of those who accepted. He could not hold both, as heir and administrator. Duplossis vs. White, 6 A. 514; Sanford vs. Toadvine, 15 A. 170; Fowler vs. Suc. Gordon, 24 A. 270; Wells Admr. vs. Wells, 30 A. 937; Suc. of Frazier, 35 A. 381.

The effect of this acceptance and possession was to terminate his administration and to transfer the claims of creditors over against the heirs.

He can no longer claim to represent the creditors. They must now act in their own behalf. Their complaints against these proceedings will be considered when they are urged by them.

The act of Robt. T. Scott, in assuming still to be administrator, and, upon his own motion, bringing this suit as such, is in direct contradiction of his own acceptance of the succession and of his acknowledgment of the title and possession of his co-heirs by the joint act of mortgage; and he is estopped Irom setting up such contradictory pretensions. The principle, quoted from Bigelow on estoppel, p. 274, that one suing as administrator is not estopped by Ms acts as an individual, does not apply.

The plaintiff is estopped from claiming to be administrator.

Wo wish to be very guarded in resting this opinion on the facts of this particular case, without determining that in all cases and to the prejudice of valid rights, an heir, qualified as administrator, can, by extra-judicial acts of unconditional heirship, terminate the succession.

Judgment affirmed.


text:
    No. 8964.
    La Compagnie Commerciale de Transports à Vapeur Français vs. G mila & Co.
    "Where suit is brought upon a contract of affreightment for a part of a ship’s load, to be delivered on or about a given day, and the ship’s arrival at port is delayed by an accident to her machinery so that the shipper has to employ another vessel, he will be released from his 9bligation to comply with the contract, unless he has voluntarily continued it, and has waived his right to a release by demanding compliance therewith by the ship.
    PPEAL from the Civil District Court for the Parish of Orleans Monroe, J.

      Henry Denis for Plaintiff and Appellant.

      J. Ward Gwrley, Jr., for Defendants and Appellees.
   The opinion of the Court was delivered by

Manning, J.

This suit is for the recovery of the difference between the rate on 2500 quarters of grain, agreed upon by the parties, i. e., 6s. Hd., and the rate obtained from others, 4s. 6d., on the defendants’ default, and for two days’ demurrage. The sum claimed is £376 11s. lid, in our currency $1832 69.

A verbal contract was made in July, 1882, by which the defendants engaged freight-room for 4000 quarters of wheat in plaintiff's steamship. “Dupuy de Lóme,” to be delivered when required by the steamer, which was expected here about September 30. The sliip broke her machinery while en route from Havre to New York, and went into Queenstown for repairs. She had not left New York for this port at the time she was due here. The plaintiff’s agents here notified the defendants on October 3, that the steamer left New York Saturday, and will (we expect) require the 4000 quarters of grain engaged from you next week, probably the last two or three days of it.” On the same day tlie defendants replied, “we beg to say that our buyer has compelled us to give him shipment by the “ Humbert,” after learning that the “Dupuy de L6me” had met with an accident which detained her so long. We, therefore, will not need the room, and you are at liberty to dispose of it.” The plaintiffs’ agents rejoined of same date: “We understand from your letter of this date, that you wish us to dispose of the room engaged by you per steamship “Dupuy de Lome” to Havre, for your account, the accident to this steamer’s machinery having necessitated your shipping the grain intended for her by the steamship “Humbert.” We shall do our best to get offers for the room, and submit them to you for approval. Naturally your engagement with your buyer can in nowise affect your engagement to supply 32,-000 bushels wheat to our steamer at 6s. lürd per quarter, delivery to be made as required by the steamer, and in case we should be unable to obtain grain to fill your room, we shall have to look to you to furnish the quantity called for.”

On the following day the defendants answer: “You do not quite understand our letter regarding the engagement per “Dupuy de Lome.” We consider ourselves released by her accident and non-arrival.”

Had they stopped there, there can be little doubt their position would have been impregnable. They could not be expected or required to hold the grain which the “Dupuy de Lome” was to take about the thirtieth of September, until such time as she could repair her machinery, and complete her voyage. News of the accident which befel her had reached here at once. The probability was that she could not reach this port at or near the time stipulated, and the defendants were justified in looking for another vessel for their shipment. This is not a grain market. Arrangements for procuring the grain, and provision for its shipment, have to be made in advance. They had been made by the defendants, and the accident to the “Dupuy de Lóme” was of such kind as to put them as prudent business men in quest of another vessel to take their grain which, pursuant to their contract, they had collected here ready for use.

But they did not stop there. Their letter proceeds : “We consider ourselves released by her accident 'and non-arrival, but if we are wrong in this view, we have no desire that you should for our account dispose of the room as we will, in this event, order more grain to fill the space. Should you, however, be able to find a shipper without loss to us, we give you liberty to accept.”

That was a distinct and unequivocal waiver of the right to terminate their contract with the “ Dupuy de Lóme,” in consequence of her delay in arriving. They were under no obligation to wait until the twelfth of October, (the ship was not ready until then), and when they were advised on the third by the ship’s agents that she would not be ready to take their grain before the last of the next week, they could lawfully abandon a contract which had been broken by her default. Deshon vs. Fosdick, 1 Woods, 287; Lowber vs. Bangs, 2 Wall. 728.

The correspondence went on. The plaintiff replied to the last letter on same day: “We beg to say that we do not consider the delay to the “Dupuy de Lóme” sufficiently serious to warrant your view of the matter, and cannot, therefore, see our way to release you from the engagement. As we cannot replace the grain from the parties on same terms, we ask you to propose some means of ascertaining without delay whether your views or ours are correct. Should we prove correct and it is more convenient to you for us to procure other cargo than grain, we shall be pleased to afford any facility to that end which will not prejudice the steamer’s interest.”

This was on the fourth. To this letter the defendants made no reply whatever. The plaintiff was justified, therefore, in believing that they acquiesced in his view, and did not desire that their room should be disposed of, but would order grain to fill the space.

A week passed, and on the eleventh the ship’s agents notified the defendants.that she would be ready to take in the grain the next morning, and again oh same day that she would have a clear side for an elevator at noon. They were silent. On the twelfth they were notified that the grain was required at once, which notification was repeated later in the day, and on the thirteenth complaint was made that no answers were received and no grain was sent. “We, therefore, beg to notify you herewith, reads the letter, that we shall at once proceed to secure the necessary amount of heavy cargo for the steamer on the best terms that can be obtained for immediate delivery, and we shall hold you responsible for all the loss of whatever nature that may be incurred by the steamer through your failure to fulfill your engagement.”

This extorted notice, and the answer was made on same day, an answer which is simply amazing when read by the light of the defense set up on the trial. It reads:

“On our engagement with the steamship “Dupuy de Lóme,” we have now in elevator part of same, and we request you to send the steamer alongside to receive them,” to which the plaintiff replied that the want of dead weight in the steamer prevented moving her to the elevator, and that it was no part of the engagement to do so. On the fourteenth the agents inform the defendants that in consequence of their failure to furnish the grain, they have been obliged to engage from Eugster & Co about 20,000 bushels at 4s. 6d. per quarter, and will secure more if they can, but notify them that the agents hold them responsible, and shall expect to collect from them the difference of freight, and the regular compensation for delay to, the steamer. And to this the defendants reply, that the engagement with Eugster & Co. cannot possibly concern them, and they will pay no such claims, for that the steamer is large and has capacity to take both. Then follows a recapitulation of the occurrences, more it should seem for the purpose of showing that they had been very considerate and non-exacting than anything else, and concluding with a last and final assertion of the present existence and binding force of their contract: “As soon as our grain arrives we shall expect the steamer to receive it, regardless of your ballast engagement with Eugster & Co.”

There can be but one conclusion from this. The defendants hold the plaintiff to the contract to the last moment, and then broke it themselves. They are liable for its violation.

We do not feel the same certainty of conviction, however, touching the claim for demurrage, which the captain of the ship testifies was for two days. It is contended on the part of the defendants that de-murrage cannot be claimed except where there is a charter party and express stipulation therefor, and that demurrage for the whole ship is not allowable for the delay in furnishing cargo for a part. One of the witnesses says it is not the custom of this port to charge demurrage in the latter case. Without entering upon the consideration of these defenses, it is sufficient to say we do not think demurrage should be allowed under the circumstances of this case, which have already been detailed. Therefore,

It is ordered and decreed that the judgment of the lower court is avoided and reversed, and that there be judgment now in favor of the plaintiff for nine hundred and seventy-one dollars and twenty-nine cents with five per cent interest from judicial demand, and for costs in both courts.

Rehearing refused.


author: Bermudez, C. J.

text:
    No. 9151.
    George M. Klein vs. Dennis, Sheriff, et al.
    One, who alleges himself to be the owner of a judgment, who charges that the title to the same, in another party, is a simulation and who asks to be recognized as owner, contradictorily with that party, does not attack the title collaterally, but directly. Evidence to prove simulation of the title attacked is well admissible.
    Simulation having been proved, plaintiff is entitled to relief.
    APPEAL from the Eighth District Court, Parish of Madison. Belong, J.

      J. B. Stone and A. N. Spencer for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an injunction proceeding, by which the plaintiff has arrested the execution of a judgment, which he claims to own and which one W. F. Long was about to enforce against the judgment debtor, John A. Klein.

From kn adverse judgment, the defendant, Long, appeals.

The allegations of the petition are, substantially : that, at a judicial sale made on the 17th of June, 1882, in furtherance of a fi. fa. issued by him, against Jas. H. Goodman, the plaintiff has acquired all the rights, titles and interest of the latter, to a certain judgment, in his favor, against John A. Klein.

That W. F. Long claims to have acquired the same judgment from Goodman, on the 14th of June, 1881, but that the transfer on which he relies is a pure simulation.

That Long has no right to enforce the execution of that judgment.

The prayer is that the petitioner have judgment recognizing him as the true and legal owner of all the rights of Goodman, in the case in which the payment was rendered; that the sale of the property seized under that judgment be enjoined and that the injunction be perpetuated. The petition concludes by a prayer for a general relief.

The defense was: first, an exception of no cause of action, which was overruled; next, a general denial; further, want of interest in plaintiff to attack, and, finally, a claim for damages sustaind by the wrongful issuance of the injunction.

On the trial, objection was made to the introduction of certain evidence by plaintiff, on the ground that the petition contained no charge of fraud and injury and that the transfer could not be attacked collaterally. The objection having been overruled and the evidence admitted, exceptions were taken to the ruling of the court.

After trial of tlie merits, tlie court considered tliat the transfer, by Goodman to Long, was a simulation and annulled it, perpetuating the injunction.

The evidence was not offered to prove fraud and injury, hut only to show simulation, which had been broadly alleged, coupled with aver-ments of the circumstances, showing want of reality. It was, therefore, properly received.

The attach cannot be said to have been made collaterally. The plaintiff alleges ownership of the judgment in himself and the simulation of Long’s apparent title. He concludes by ashing to be recognized as the owner of the judgment. Such a prayer virtually implies one, that Long’s alleged title to the judgment be annulled, as both the plaintiff and Long could not, at the same time, own each, absolutely and entirely, the same judgment.

Even were it otherwise, it is settled, by unassailable authority, that a simulated transfer may be altogether ignored and that the property apjrarently conveyed may be seized and sold directly, without the necessity of an action to annul the apparent transfer.

This is precisely what the plaintiff did. He ignored the conveyance, seized, sold and bought the judgment which he now claims to own, contradictorily with the simulated transferree.

The testimony of the witnesses, Majors and Kuy Kendall, as well as that of the defendant, Long, who could have well proved the reality of the transfer, if it was valid, has satisfied the district judge that the transaction was a'simulation. An examination of the same evidence drives us to the similar conclusion, that no consideration actually passed from Long to Goodman, and that the check of Majors, borrowed for the occasion, never was used, but was, afterwards, returned to him.

It was in the power of the defendant to have proved, conclusively, the sincerity of the transfer, if it was an honest one; but, instead of doing so, he persistently declined to answer certain pertinent and important questions put to him while he was on the stand, in his own behalf.

We attach no importance to the admission “that John A. Klein had notice of the transfer from Goodman to Long, through Geo. M. Klein, a few days before it was made.”

The transfer is claimed to have taken place on the 14th of June, 1881 and it is not until the 23d of November, following, that Geo. M. Klein became a creditor of Goodman, by the purchase of the judgment, in execution of which he seized the latter’s interest in the judgment against Jolin A. Klein, which, Long seeks now to enforce. Geo. M. Klein had, at that time, no interest to oppose the notice, or to question the validity of the transfer. His interest arose only on the 17th of June, 1882, when he acquired Goodman’s rights to the judgment against Jno. A. Klein.

Judgment affirmed, with costs.


text:
    No. 9097.
    The State ex rel. H. J. Rivet vs. H. L. Lazarus, Judge of Civil District Court, Division E.
    The question of tlie constitutionality or legality of the interest imposed by the Legislature upon delinquent municipal taxes, does not involve the legality or constitutionality of the tax; nor is it a penalty imposed by a municipal corporation, being imposed, even if a penalty, within the meaning of the Constitution, by the Legislature of the State.
    The case does not, therefore, fall within our appellate jurisdiction.
    PPLICATION for Mandamus.

      F. J). Ohréüen for the Relator.

      Olías. F. Buelc for the Respondent.
   The opinion of the Court was delivered by

Fenner, J.

Relator, owing the city of New Orleans taxes to the amount of one hundred and twenty dollars, for the year 1883, tendered that amount, acceptance of which was refused by the city, without payment of ten per cent interest from the date when said tax became delinquent, under the terms of Act of the General Assembly, No. 109, of 1882. Thereupon, he applied to the Civil District Court for a mandamus ordering and compelling the city to receive the said principal sum, in full satisfaction.

After due trial, judgment was rendered refusing the mandamus. From that judgment, he applied for an appeal to this Court, which was refused.

The present application is for a mandamus ordering the respondent judge to grant the appeal.

His right depends upon the question whether his case falls within our appellate jurisdiction. Of course, the amount in dispute, of itself, is insufficient.

He claims, however, that his case is appealable under Art. 81 of the Constitution, on two grounds:

1. That it envolves “tlie constitutionality or legality of a tax imposed by a municipal corporation.” We And no contestation to the constitutionality or legality of the tax. On the contrary, relator admits that it is due and offers to pay it.' The only question is as to the interest.

The Legislature of the State has clear power to fix the rate of interest upon taxes as well as upon other debts and to determine when it shall begin to run, and the constitutionality of such a law does not involve the constitutionality of a “ tax imposed by a municipal corporation.” Gillis vs. Clayton, 33 A. 286; 9 A. 64, 305; 4 A. 83, 407; 1 A. 385.

2. He claims that the case involves “ the constitutionality of a penalty imposed by a municipal corporation.”

It seems almost needless to say that interest is not a, ¡penalty of the kind referred to by the Constitution. But, if it were, it is imposed not by the municipal corporation, but by the State Legislature.

The mandamus is denied, at relator’s cost.


text:
    No. 9121.
    Leonora A. March, Tutrix, vs. Ludlow McNeely et al.
    Where the original petition is for an unappealable sum, and an amended petition is filed for the sole purpose of inflating the demand so that our jurisdiction may embrace it, the appeal will be dismissed. It is not more permissible to endeavor to compel jurisdiction by averments of fictitious values than by averments of fictitious claims.
    \ PPEAL from the Twelfth District Court, Parish of Avoyelles. ¿A. Barb in, J.
    if. I). Daigre, W. L. Richardson and B. P. Mwnter for Plaintiff and Appellant.

      J. O. WieMiffe for Defendants and Appellees.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Manning, J.

The plaintiff sues to recover property alleged to be worth five hundred dollars — to recover the rents of it, alleged to be worth twenty-five dollars a month, and two hundred dollars as attorney’s fees. The prayer is that she have judgment decreeing her to be the owner of the property — for rents at the above rate from April 1, 1883, and for the attorney’s fees.

The rents accruing up to the trial below (the judgment was signed November 28, 1883,) would be a fraction less than two hundred dollars, and the three items together do not quite aggregate, nine hundred dollars, even if attorney’s fees were claimable. Obviously they form no part of the plaintiff’s legitimate demand.

After answer had been filed and the case had been fixed for trial, an amended petition was presented, to which the defendant objected on the ground that it changed the substance of the demand, which the court overruled, and the amendment was filed, the defendant reserving a bill thereto.

The sole allegation of the. amended petition is that the property is worth twelve hundred dollars, and the plaintiff's brief •with commendable candor informs us the sole purpose in filing it was to make certain the jurisdiction of this Court.

The general rule determining jurisdiction is that it is tested by the sum claimed, but fictitious claims are not permitted to be tacked on or added to the real claim for the mere purpose of inflating the. amount so as to attain jurisdiction. Copley vs. Ross, 1 A. 310; Hagenberger vs. Wild, 9 A. 3, Pritchard vs. Parker, 21 A. 745. There is no separate claim made here independent of the main demand, but the main demand itself is increased for the sole purpose that our jurisdiction may embrace it. This is an attempt to accomplish the same end by different means — travelling to the same goal by different roads. It is not more permissible to endeavor to compel jurisdiction by averments of fictitious values than by averments of fictitious claims.

If we turn to the evidence, the, preponderance will not swell the value of the property up to our jurisdiction.

The appeal is disndssed.


text:
    No. 9118.
    N. P. Phillips vs. Cassidy & Powell.—O. H. Courtney, Intervenor.
    TIio only judgment which can he rendered, in the absence of a plaintiff, when no ^conventional demand, or one equivalent thereto, has been formed, is one of non suit.

    APPEAL from the Fifteenth District Court, Parish of Pointe Coupee. Toist, J.

      W. W. & H. C. Leake, and Farrar & Montgomery for Plaintiff and Appellee.
    O. O. Provosty for Intervenor and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit on a mortgage note, via ordinaria.

0. H. Courtney intervened, claiming the ownership of the land, and the plaintiff joined issue, by answer purely defensive.

The defendants having failed to appear, after citation and expiration of delay allowed to answer, a judgment by default was duly entered against them.

The case was fixed for trial. The intervenor was neither present, nor represented. The defendants were also absent.

The plaintiff offered evidence in support of Ids demand and adverse to that of the intervenor.

There was judgement in favor of plaintiff, against the defendants, for the amount claimed with the mortgage asked, dismissing the intervention as in case of non suit.

The intervenor alone appeals. The plaintiff asks no amendment of the judgment.

We are not, therefore, called upon to review the judgment as between the plaintiff and the defendants, but only so far as the intervenor is concerned.

On the trial, the intervenor offered no evidence. Ho complains, however, that, on that introduced by the plaintiff, (defendant on his intervention), the court should have rendered judgment in his favor, recognizing him as tiro owner of the real estate sought to be seized and sold.

This position, if permissible, would at best place the intervenor in the attitude which he would have occupied had he actually submitted that evidence in support of his claim.

That evidence cannot be considered at all, for the defendant in intervention, in the absence of any formal prayer for a judgment recognizing title to the land in the defendants, could not have taken up and tried the case in the absence of the intervenor. 34 A. 628; 33 A. 415; 11 A. 287; 5 A. 298; 21 A. 814.

The only judgment which could have been rendered, under the circumstances, was one of non-suit.

Judgment affirmed.


author: Boché, J.

text:
    No. 9152.
    J. O. Poole vs. John Chaffe & Sons et als.
    A bond of fifty dollars cannot support a suspensive appeal predicated on an order for a bond of one hundred and fifty dollars.
    An agreement between parties consenting to a decision of cause at chambers, reserving appeal to either party, on a bond of §100 for a suspensive, and $50 for a devolutivo apjieal, is necessarily superseded and revoked by a different and subsequent agreement, fixing no amount for a suspensive appeal and containing no reference to a devolutive appeal. In sucli a case, the amount of the bond for either mode of appeal must be fixed by the court and the bond unvusti comply -with the order of appeal.
    A PPEAL from the Eighteenth District Court, Parish of St. Tam-.jLJL many. Thompson, J.

      E. D. Saunders for Plaintiff and Appellant.

      Jos. A. Reid for Defendants and Appellees.
   Motion to Dismiss.

The opinion of the Court was delivered by

Boché, J.

Plaintiff’s object in this suit was to maintain his possession of an immovable property by means of the writ of injunction so as to restrain the defendants from carrying into effect their threatened intention of ejecting him therefrom.

He has taken this appeal from a judgment dissolving the preliminary injunction which he had obtained in the premises.

Among ot! er grounds, the motion to dismiss urges the insufficiency of the appeal bond, the same being for an amount different from that fixed in the order of appeal.

The order of appeal was rendered on appellant’s petition praying for a suspensive appeal and fixed the amount of the bond at $150. The bond furnished was for $50.

But appellant contends that his appeal is only devolutive and that he furnished Ms bond for tire sum agreed upon by the parties, who had consented that the cause could be decided at chambers with the same effect as if the judgment had been rendered in open court, and that either party had the right of appealing by furnishing a bond of one hundred dollars, if suspensive, and of fifty dollars, if devolutive. Under a writ of certiorari issued from this Court the clerk of the lower court has added to the transcript an agreement to that effect.

His omission to transcribe it in the first place was doubtless owing to the fact that the agreement which had been entered into on the 14th of October, 1882, had been virtually cancelled by the parties and had been superseded by another and a different agreement on the same subject-matter, under date of the 19th of December, following. The latter agreement stipulated that plaintiff was allowed time to January 5,1883, to present Ms brief, that judgment might be rendered at vacation, and that either party could take a suspensive appeal within ten days after the filing of the judgment in the clerk’s office.

Under tlie law which fixes the delay for a devolutive appeal, it was useless to stipulate any condition touching that mode of appeal. • It is clear that the latter agreement had entirely superseded the former and it alono was the guide to the parties concerning their right to a sus-pensive appeal.

Within the delay, appellant applied for and obtained an order of suspensive appeal; no reference being made to a devolutive appeal, either in the petition or in tho order. The latter conformed with the relief prayed for in the petition. Tho bond does not comply with tho order and is, therefore, fatally defective.

To appellant’s argument that his appeal is devolutive, because the judgment decreed nothing that could be suspended by appeal, tho ready answer is that, under a suspensive appeal, the preliminary injunction would bo maintained, otherwise if the appeal is devolutive, in which case the defendants could go and accomplish the very acts which he sought to prevent.

Again, if ax>pelhmt predicates his appeal upon the agreement of October 24,1882, he falls for want of an order of appeal under it. If he desires to stand, as he manifestly does, on the agreement, of December 19, his bond does not comply with the order predicated on that agreement. Both horns of the dilemma are fatal to his appeal. 35 A. 935; Phillips vs. Creditors, 23 A. 543; Dupré vs. Mouton.

This appeal is, therefore, dismissed at appellant’s costs.


author: Toud, J.

text:
    No. 8980.
    The State of Louisiana vs. Paul Coudier.
    A challenge to the array must 1)0 made upon the first day of tho term, under tho requirements of Act 44, of 1879. This not is operative in the parish of Jefferson and superseded previous acts upon tho same subject-matter relating to said parish, special and general.
    Where ampio opportunity is afforded tho accused to procuro tho attendance of a witness and ho fails to liavo issued a subpoena for him, and there is otherwise a lacle of diligence, a continuance should not ho granted. That tho witness is summoned by tho State makes no difference.
    Where a witness cannot bo found at his usual placo of residence, and the search and inquiries for him lead tho officer to tho conclusion that ho has left the State, the deposition at the preliminary trial was properly admitted.
    APPEAL from the Twenty-sixth District Court, Parish of Jefferson. Halm, J.

      J. 0. Egan, Attorney General, for the State, Appellee.

      H. N. Gautier and E. 0. Oastellanos for Defendant and Appellant.
   The opinion of the Court was delivered by

Toud, J.

Tho defendant appeals from a sentence for manslaughter, condemning him to four years’ imprisonment at hard labor and to pay a fine of five dollars.

1. His first ground of complaint is tlie overruling of his challenge to the array of jurors.

The challenge was not made on the first day of term, as regulated by Act 44, of 1879, but the counsel for the accused contends that that act was not operative in the parish of Jefferson, but that a special act, being Act 37, of 1870, governed in criminal proceedings in that parish.

We think the Act of 1877, mentioned, was in force in the parish of Jefferson, and superseded the special act referred to, if that act had not already been repealed by Act 94, of 1873. The Act of 1877 was, by its very terms, enacted to have effect in all the parishes of the State, the parish of Orleans excepted. Tt must necessarily, therefore, have included the parish of Jefferson.

Under the special requirements of that act, the challenge was made too late. The bill was found on the — day of April, the court was adjourned to the 10th of September, and the challenge was made on the 17th of that month.

2. The next complaint is to the refusal of the judge to grant a continuance applied for on account of the absence of a witness. The application was refused because there was a want of diligence to procure the attendance of the witness. The case had been continued twice, and several postponements of the trial been made, yet there was no effort by the accused to procure the witness, and he had not even caused a subpoena to issue for Mm. That a subpoena had issued for the State did not excuse this omission on his part. In refusing the continuance, we cannot conclude that the judge abused his discretion.

3. A bill of exceptions was taken to the admission at the trial of the deposition of a witness taken before a justice of the peace on a preliminary trial, the objection being that the witness should have been produced in person. This witness once resided on Toulouse street, New Orleans, a subpoena had issued for him, and the officer did not find him at his designated place of residence, nor elsewhere in the city, after search made; and the' only information lie could obtain of him in answer to his inquiries was, that the witness had left the State. We think the objection was correctly overruled and the deposition properly admitted. The further objection that all the testimony taken at the preliminary trial was not reduced to writing amounts to nothing.

4. Another bill was taken to the exclusion of the declarations of the accused made after the commission of the offense and after his arrest.

The declarations were not part of the res gestrn, nor shown to be connected with the confession of the defendant testified to by another witness; and they came under no exception to the general rule that the declarations of the accused in his own favor are inadmissible.

This completes the review of the case, and finding no error in the proceedings the sentence is affirmed, with costs.

Rehearing refused.


author: Poci-xé, J.

text:
    No. 9135.
    Alphonse B. Coco vs. Barthélemy Guyral.
    In a suit between residents of the same parish, in which plaintiff proceeded by attachment of his debtor’s property, the defendant is not entitled to institute a demand in reconvention for damages growing out of the attachment.
    Such a demand is not only different from the main action, but is not necessarily connected •with and incidental to the same. In such cases the reconventional demand will be dismissed as in case of non-suit.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. . Bcvrhm, J.

      Oullom & Oooo for Plaintiff and Appellee.

      JE!. J. Joffrion and Thorpe, Peterman & Thorpe for Defendant and Appellant.
   The opinion of the Court was delivered by

Poci-xé, J.

Plaintiff brought this suit on a note of $400 and attached the debtor’s property on the ground that he was about to dispose of the same in fraud of his creditors.

The defence was mainly levelled at the attachment proceedings and ended with a demand in reconvention for damages in the sum of $5000.

The case was tried by a jury, who found a verdict in favor of plaintiff for the amount of his claim, but dissolved his attachment and allowed damages on defendant’s - reconventional demand in the sum of fifty dollars.

Defendant has appealed with a view to an increase of damages, and plaintiff prays for an amendment for the reinstatement of his attachment and for the rejection of all damages.

In the district court plaintiff excepted to the reconventional demand, and on being overruled therein, he reserved all his rights under his exception. We must first premise that, as the amount of plaintiff’s claim is not within our jurisdiction, we have no authority to review tlie finding of the jury in dissolving Ms attachment; our jurisdiction is therefore restricted to the reeonventional demand. Lamorere vs. Avery, 32 A. 1008, and authorities therein cited.

Plaintiff’s exception to the reeonventional demand is the pivotal question in the case, and, in our opinion, it should have been sustained.

The demand for damages is predicated on the injury alleged to have been done to the defendant by means of the illegal attachment of his property. It is not only different from the main action, but it is not necessarily connected with and incidental to the same. C. P. art. 375.

The record shows that the parties are both residents of the same parish, hence the defendant was not entitled in.law to institute his re-conventional demand for damages alleged to have been suffered by him through the writ of attachment. To allow such a reeonventional demand, under the circumstances of this case, would obliterate the distinction made by our code of practice between suits pending between residents of the same parish and suits brought by residents of a parish against non-residents and residents of different parishes, and would open the door to reeonventional demands by all defendants who wordd feel damaged in their credit or reputation by any suit for debt or other cause of action, with or without a conservatory writ.

These views have been uniformly enforced in our jurisprudence, and the rule can now bo considered as firmly settled in that sense. Morgan vs. Driggs et al., 17 La. 176; Knox vs. Thompson, 12 A. 114; Nuzum vs. Gore, 24 A. 208; Teal vs. Lyons, 30 A. 1140.

It is therefore ordered, adjudged and decreed that the judgment rendered on defendant’s reeonventional demand be annulled and set aside, that plaintiff’s exception to said demand be maintained, and that defendant’s demand for damages be dismissed as in case of non-suit, at his costs on this appeal and his costs incurred below on said demand.


text:
    No. 8975.
    The State of Louisiana vs Perry Ryder.
    The assistant district attorney of tlie parish of Orleans lias authority to prepare, sign and filo an information regardless of the presence or absence of tho district attorney, or his inability from sickness.
    Where a statute declares that the punishment for a certain offense shall not exceed a stated number of years, with or without hard labor, and also authorizes tho imposition of a fine, and the accused is sentenced to imprisonment at hard labor for the entire term declared and to tlie payment of aline, there is no warrant in law for the infliction of the additional punishment at hard labor for another year in default of paying the fine.
    A P'PE AL from the Criminal District Court for the Parish of Orleans. íTl. Homan, J.

      J. 0. Egan, Attorney General, for the State, Appellee.

      W. L. Evans for Defendant and Appellant.
   Tine opinion of the Court was delivered by ■

Todd, J.

The defendant was convicted of inflicting a wound less than mayhem and sentenced (quoting): “ to pay a fine of five hundred dollars, inclusive of costs of prosecution, and to suffer imprisonment at hard labor, in the State penitentiary, for the term of two years, and in default of payment of said fine at the expiration of said sentence, to suffer additional imprisonment at hard labor, in the State penitentiary, for one year, and to pay costs of prosecution.”

The conviction was on an information signed by the assistant district attorney and filed in court by the district attorney.

1. The first complaint is that the assistant district attorney had no authority to prepare and sign the information and initiate the prosecution, except where the district attorney was sick or absent.

The law on this point is as follows :

“ There shall be a district attorney for the parish of Orleans, who shall possess the same qualifications and be elected in the same manner and for the same period of time as the district attorneys for other parishes, as provided by this Constitution.
“ He shall receive a salary of one thousand dollars per annum and sucli fees as may be allowed by law; but no fee shall be allowed in criminal cases except on conviction.
“ He may appoint an assistant at a salary not to exceed fifteen hundred dollars per annum.” Art. 134, Constitution, p. 35.
“That it shall be the duty of the district attorney and assistant district attorney, of the parish of Orleans, to conduct the prosecution of all criminal eases coming before the criminal courts of said pcmsh. Sec. 2, Act No. 96, p. 122, of 1880.

We are satisfied that under these provisions the authority of the officer in question, was ample, whether the district attorney was present or absent, or unable from sickness to perform the duty.

2. The legality of the sentence quoted above is denied.

Section 794, R. S., provides: “Whoever shall, with a dangerous weapon or with intent to kill,.inflict a wound less than mayhem upon another person, shall, on conviction, be imprisoned not exceeding two years nor less than six months, with or without hard labor, and be fined not exceeding one thousand dollars.”

Section 980, R. S., provides that every person being adjudged to pay a fine, shall, in default of payment or recovery thereof, be sentenced to be imprisoned for a period not exceeding one year.”

The first section limits the term of imprisonment within two years and leaves it discretionary with the judge to make it with or without hard labor.

Of course, if this section stood alone, the sentence in question would be excessive and unwarranted.

Is there anything in the last section that authorizes the judge to inflict a punishment, for this offense and for non-payment of the fine, of more than two years’ imprisonment at hard labor 9 Unless the last provision furnishes a clear warrant for such punishment, beyond two years — the extreme limit declared in the first section mentioned — it cannot prevail against the positive declaration of the first. Criminal statutes, esjiecially those providing or declaring the penalties of the law, must be strictly construed.

The penalty for the offense charged in this case, inflicting a wound less than mayhem, as seen from section 794, is imprisonment with or without hard labor, but, touching the further and conditional iranish-mcnt provided, for not paying the fine imposed, the alternative made, with or without hard labor, is not expressed.

This suggests the inquiry as to where the judge finds his warrant for naming imprisonment at hard labor as the kind of imprisonment meant for this further punishment. The statute is silent as to the kind to be imposed in such contingency. Where then is the authority to supply the omission and resolve the doubt by designating the harsher penalty? Can wo readily suppose that the law-maker intended that any officer or tribunal in the State should possess the power to doom a man to hard labor in the penitentiary, unless the law declared and fixed this severe and infamous punishment in terms that could not be misunderstood 9

Yet the law in this instance does not so expressly declare, and the power to inflict this mode of punishment can only result from implication, and implication in a matter of this kind is not allowable. Even if it were, it cannot be fairly or reasonably implied that the word or term “imprisonment” meant imprisonment at hard labor. In truth, in criminal matters and in criminal parlance, so to speak, there is a recognized distinction between the terms imprisonment and imprisonment at hard labor, and the accepted meaning of the former is imprisonment without hard labor, almost as fully so as if the qualifying words were attached or expressed.

We, therefore, conclude that there is no clear warrant in law for that part of the sentence in the instant case jthat inflicts the penalty of imprisonment at hard labor for non-payment of the fine.

Under established precedents, we could correct the sentence in this respect, leaving intact that part of it which is unassailed, but, after due reflection, we deem it preferable in this instance to set aside the entire sentence and remand the case for the purpose that the judge a quo may re-sentence the accused under the restriction herein announced.

It is, therefore, ordered, adjudged and decreed that the sentence appealed from is annulled and set. aside and the case remanded to the lower court for the purpose hereinbefore stated, to be proceeded with according to law, in conformity to the views herein expressed.


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    No. 9116.
    Mrs. C. H. Gibson and Husband vs. Bennett F. Hitchcock et al. Mrs. Carrie F. Hitchcock et al. vs. John Mackin et al.
    Consolidated.
    Exceptors have no interest to question the validity of the judgment of the parish court of Concordia recognizing their opponents as widow and heir of Hitchcock and putting them in possession of his estate. They exhibit nothing throwing doubt upon the sole heirship oí the heir or indicating any other person having rights as such, and whether the mother be surviving widow in community or not, she is recognized as such by the heir, who has accepted unconditionally and joins her in these proceedings, by which she is fully bound.
    PPEAL fnom the Ninth District Court, Parish of Concordia. JTJl. Hough, J.

      Wade B. Yoxmg for the Appellants.

      J. S. Boatner and JDagg <& Mason for the Appellees.
   The opinion of the Court was delivered by

Fenner, J.

Hitchcock, defendant in the first above mentioned suit, died in 1878, leaving all or most of his estate in the parish of Concor-dia. His succession was opened in that parish, his will constituting his daughter, Laura A. Hitchcock, his sole and universal legatee, was probated, and upon regular proceedings, Mrs. Caroline F. Hitchcock and the said daughter were recognized and sent into possession as widow in community and sole heir. They entered and have remained in undisturbed possession.

In those capacities they voluntarily appeared and filed answer as representatives of the deceased defendant in the first suit and brought the second suit, above mentioned. • Mrs. Gibson and. her husband put the last cause at issue by filing an answer to the merits, and the two causes were consolidated.

When they came on for trial, Mrs. Gibson filed a motion for continuance and an exception denying that Mrs. and Miss Hitchcock were the widow and heir of Bennett Hitchcock, and setting up nullity of the judgment recognizing them as such, on the ground that at the time of Ms death he was a resident of the city of New Orleans.

The continuance was granted and the exception was tried and maintained.

Waiving the question of the timeliness of the exception, we think the exceptors had not the least interest in setting up the nullity of the judgment of the parish court of Concordia, upon a ground not appearing upon the face of the proceedings, but dependent on extrinsic evidence of matter in pais. Especially is this true when the record does not suggest the slightest doubt as to the sole heirship of Miss Hitchcock, or indicate any other person having an interest in the estate.

Whether the judgment be valid or not, she has gone into possession and accepted unconditionally and has the right to stand in judgment. It matters not to exceptors whether the mother be really surviving widow in community or not She is recognized as such by the heir, who acts with her in these proceedings and is fully bound by them.

It is, therefore, ordered and decreed that the judgment appealed from be annulled, avoided and reversed; and it is now ordered and decreed that the exception be overruled and the case remanded, to be proceeded with according to law, appellees to pay costs of the exception in the court below and of this appeal.


author: MANNING, J.

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    No. 9102.
    Succession of Theo. Gusman. On Application for Dative Executorship.
    A beneficiary lioir, of ago and present, is entitled to the dative executorship to the exclusion of all others.
    If the beneficiary heir bo a minor with both parents living, they are entitled to the execu-torship as representing him.
    The term, beneficiary heir, includes one who may accept the succession equally with one who has accepted it.
    PPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherbimi, J.

      K. A. Oross for the Applicant, Appellant.

      Tlws. B. Dupree for the Opponent, Appellee.
   The opinion of the Court was delivered by

MANNING, J.

The testatrix, Mrs. Gusman, failed to name an executor of her will, and her daughter Zuime, wife of William Hearsey, applied for the appointment, her husband joining and praying to be appointed co-executor, and was opposed by William Garig, the husband of another daughter, who prayed in turn that he be appointed, and the court so decreed.

The testatrix was a woman of advanced age, and left three children —a son beside the daughters just mentioned — all majors. She left a' hundred dollars to each of them, and beside that, a benison to one and a malediction to the others. The favored child was Mrs. Hearsey, but the testatrix had no faith in her husband’s competency, and said so with the frank brusqueness that characterizes the whole will.

To Mrs. Garig’s child she gave a house and lot in Baton Rouge, and made Airs. Hearsoy’s children legatees of the residuum. There appear no debts.

The grounds of Garig’s opposition to Mrs. Hearsey’s application are stated to be her physical disability and litigious character. .

The physical disability is not stated. She is not alleged to be halt or blind, and she certainly can talk, and as the record shows, very sensibly. The proofs of litigious proclivities rather indicate promptitude in action, and a vigorous will in conserving her rights, which ought not to be imputed as blame to her if her mother’s judgment of her husband’s want of business capacity be correct.

The Code has not indicated this as a disqualification for executor-ship, but it has affirmed that the beneficiary heir, of age and present, shall be preferred to every other person for that office. Rev. Civil Code, art. -1042. And though in general a woman may not be appointed, yet the rule of exclusion does not hold if she be heir or legatee. Sue. Block, 6 A. 810. And if she be married, her husband can act conjointly with her. Sue. Williamson, 3 A. 202; Sue. Pexmey, 10 A. 290. If there is but one beneficiary heir, he or she is entitled to the exclusive appointment, Sue. Briscoe, 2 A. 268, and that term applies to one who may accept the succession as well as to one who has accepted. Sue. Sloane, 12 A. 610.

The beneficiary heir here is not Mrs. Hearsey, but her children are residuary legatees, and she is their tutrix or rather she and her husband are their natural protectors. As there are no debts, it would seem the only duty an executor will have to perform will be to pay the moneyed legacies, to deliver the house and lot over to young Garig’s proper representative,, and the residuum to the Hearsey children’s parents. There is every reason why che applicants shall be appointed, and the law commands it as against one not a beneficiary heir.

It is therefore ordered and decreed that the judgment of the lower court is reversed, and that Mrs. líearsey and her husband be and they are hereby appointed dative executrix and executor of the will of the testatrix Theo. Gusman upon giving bond and security according to law, and thereupon they are ordered to be qualified accordingly, the opponent George Garig to pay the costs of his opposition in the lower court and the costs of appeal.


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    No. 9101.
    Zulme Hearsey and Husband vs. j. W. Bates, Sheriff, et al.
    "Where the deceased owed no debts, and the claims against the succession are small and not urgent, an injunction by the beneficiary heirs or their representatives, restraining the instant sale of the property, will be maintained, if such heirs offer to pay the debts and legacies, or tender a sum sufficient to cover them.
    A PPEAL from the Seventeenth District Court, Parish of East Baton J_"A. Rouge. Sherburn, J.

      K. A. Gross for Plaintiffs and Appellants.

      Thos. B. Dupree for Defendants and Appellees.
   The opinion of the Court was delivered by

MANNING, J.

After Mrs. Hearsey had appealed from the judgment appointing Garig dative executor of Mrs. Gusman’s will, Garig applied for leave to sell certain property for tlie payment of debts, and obtained it. Tlie property tlms designated for sale is tlie movables and three improved lots, tlie appraised value of which is near two thousand dollars.

There were no debts of the deceased. The claims against the succession were for funeral expenses, and of others not large amount, and not pressing. None of the holders of the claims appear to have presented them to the acting- executor, and to have had them approved or recognized.

The application to .sell proi>¡erty under these circumstances was premature, and exhibits an absence of prudent administration which properly provoked the interposition of Mrs. Hearsey and her husband, the parents of the residuary legatees. They enjoined the sale and avow their readiness to advance such sum as may be needful to pay these debts and charges.

The lower judge dissolved their injunction, but we shall maintain it.

The holders of claims against-the succession hád not taken the preliminary stcjis to the collection of them, and although they say they wanted payment, they had not put themselves in a position to enforce it. Code Prae. arts. 984-6. The legatees were not demanding payment. With no urgent claims requiring or necessitating an immediate sale of property, the executor might and should have deferred his application for the sale until the necessity for it arose, and this the more as his tenure of office might he cut short by the success of that opposition to Ms appointment, which was already prepared for the revision of this Court.

Tt is therefore ordered and decreed that the judgment of .the lower court is reversed, and the injunction of the plaintiffs is maintained and perpetuated, and that they have judgment against the defendant George G-arig for their costs in both courts.


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    No. 9167.
    The State ex rel. Caroline H. Geddes vs. Judge of Civil District Court for the Parish of Orleans, Division C.
    A mandamus lies to compel the granting of a suspensive appeal from a .judgment decreeing a liquidation oí a community of acquets and gains, although, it refuses a partition ashed. Such judgment, having passed on the entire demand, isa final judgment, from which the law does not ptovido that there shall "bo allowed no appeal.

      A PPL1CATION for Mandamus.

      T. Gilmore t& Sons for the Kelatrix.

      J. Ad. Hosier and W. B. Lancaster for the Respondent.
   The opinion of the Court was delivered b.v

Bermudez, C. J.

This is an application for a mandamus to compel the district judge to grant the relatrix a suspensive appeal from certain decrees or judgments rendered by him, the motion therefor having been seasonably offered, accompanied by a proper bond.

The district judge returns that the rulings made by him and complained of are not final judgments, but simply interlocutory decrees, tire execution of which can work no irreparable injury.

Our learned brother labors next to establish the correctness of the rulings in question.

With this last part of the return this Court cannot presently be concerned. The difficulty now to be solved consists in determining whether the rulings sought to be brought up for review can or not be suspen-sively aqipealed from; in other words, whether they are final judgments or mere interlocutory decrees, which can work no ii reparable injury.

We will proceed to examine them seriatim.

I.

It appears that the executors of John Geddes have instituted an action in which, after certain averments, they pray that Widow Geddes, as also the universal legatee of the deceased and the attorney for absent heirs, bo cited; that the said Mrs. Geddes be forced to make her decision whether she elects to accept the community or to renounce the same; and in case she elects to accept, then that a liquidation and partition of said community be ordered and adjudged to take place, according to law. The executors ask for all further orders and pray for all other relief as maybe required in the premises.

Widow Geddes excepted to the petition, on the ground that it discloses no right, of action. Her exception having been overruled, she appeared accepting the community, under benefit of inventory, and further answered, praying to bo dismissed with her costs.

After trial the court rendered a judgment in favor of the executors and against the widow in community, decreeing that there be a liquidation of said community, in order to determine the respective rights of said widow and of the heirs of the deceased, and dismissing the demand for a partition, without prejudice to any right which the plaintiffs, or any of them, may have to sue for such partition, should the same hereafter he deemed necessary or advisable.

The judgment was rendered on February 4th, and signed on February 8, 1884. •

The petition had two objects: a liquidation of the community and a partition of its assets.

The judgment decreed the liquidation and declined the partition, with a reserve.

Tt has effectually passed upon the only two questions or issues presented and has set the controversy at rest. It is no longer open to review b3>- the court which rendered it, and if erroneous, can be reformed on appeal only, the caso being appealable.

It has certainly the substance and the form of a final judgment which can acquire the force of res judicata and thus become definitive or sov-% e,reign..

All final judgments, where the matter in dispute is within the jurisdiction of this Court, can be suspensively appealed from, to it, whore they order anything to bo done, or where, they would in some way produce an effect, unless the law declares otherwise. C. P. 565.

The judgment complained of does not belong to tho class of those from which the Code of Practice declares that no suspensive appeal shall lie and which shall he executed provisionally. C. P. 580; 20 A. 574, 529; 35 A. 507.

II.

Tho second ruling is one dismissing a rule taken by tho relatrix on the executors to compel them to pay certain legacies to oilier partios and to erect a tomb for the deceased.

The decree was signed as final judgments usually arc. C. P. 546. Tt is itself a final judgment. It is difficult to perceive, how such a judgment of dismissal can be executed and how its effects can bo suspended. The relatrix lias thrown no light on this question and possibly sho was not bound to do so. If, however, the judgment be susceptible of an effoc-t, she wishes to suspend its execution. The suspensive appeal which slie seeks may or not suspend, as there may or not exist an effect or execution to be suspended. It is not such judgment as tho law provides shall not be suspensively appealed from. C. P. 580, 575.

III.

The last action of tile judge complained of is an ex parte order made at the instance of the executors to take testimony under commission, “in the matter of tho order and judgment * * * rendered on the 4th of February, 1884,” and directing the widow to be notified thereof.

The order is evidently in furtherance of the judgment first above considered and from which it is determined that a suspensive appeal lies. If the relatrix be entitled to suspend that judgment, she can, as a matter of course, likewise arrest whatever is sought to bo done in furtherance of it.

It is, therefore, ordered and decreed that the alternative mandamus herein issued be made peremptory and that the restraining order made in limine be made absolute.


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    No. 8914.
    Succession of William Florance.—On Opposition of Meyer Gutheim and Joseph Brewer, Jr.
    The fees of an attorney of absent heirs are chargeable to the portions of the heirs whom he represents.
    An exception will apply to cases where the services of such attorney have proved valuable and beneficial to the succession, in which cases he will be allowed a reasonable compensation out of the mass of the succession.
    In a contest for the administration of a succession, the attorney of the defeated applicant has no claim for his services against the succession. Butin a case where the defeated applicant is named as an alternate executor in the will of the deceased, his attorney will he entitled to a reasonable compensation from the succession for such of his services as were beneficial to the estate, such as procuring an inventory and the appointment of an attorney of absent heirs and the like.
    PPEAL from the Civil District Court for the Parish of Orleans. Rujhtor, J.

      E. R. Farrar, and Joseph Brewer for Opponents and Appellants.

      F. T. Flora/nee and B. Florance for the Executor, Appellee.
   The opinion of the Court was delivered by

Poché, J.

This appeal presents two oppositions to the .provisional account of the executor:

1. Joseph Brewer, the attorney of absent heirs, complains that the. ' sum of two hundred and fifty dollars which is allowed him in the account is not an adequate compensation for his services in his said capacity, for which he claims one thousand dollars.

He appeals from the judgment rejecting his opposition.

The general rule under our jurisprudence, is that the fees of the attorney of absent heirs should be charged to the portions accruing to the heirs whom he represents, but in cases where his services have proven actually valuable to the succession, the rule has been relaxed in Ms favor, and Ms fees have been sometimes charged to the mass of the succession. 8 La. 44, Aubry vs. Cojus; 19 La. 425, Hisem vs. Lemel’s Curator; 29 A. 746, Succession of Harris.

The executor in this case recognized that a portion of opponent Brewer’s services had proved valuable to the succession, and guided by the exception to the general rule, he placed Mm on the tableau as a privileged creditor of the succession in the sum of two hundred and fifty dollars. The district judge has correctly refused to increase ,the allowance. The record discloses a great deal of labor, and valuable services zealously rendered by the attorney of absent heirs, but he is allowed all that he is entitled to out of the mass of the succession. As the succession is manifestly solvent, he will have the opportunity on the distribution to the heirs and legatees, to press his claim for reasonable compensation against the heirs whom he represents, under the order of the court, and for whom he has so zealously and persistently labored.

2. Meyer Gutheim, who claims to have rendered legal services to the succession, opposed the tableau on the ground that his claim, which he fixes at seven hundred and fifty dollars, was entirely ignored by the executor. He has appealed from a dismissal of his opposition. The record shows that when the testator died in New York, his last will was filed in the proper court of that State, but not probated when Ms succession was opened in this State on a certified copy.

The testator had appointed Benjamin Florance the executor of Ms succession in Louisiana, and in case of his death or inability to act, the duty and the trust were to devolve on Edwin I. Kursheedt.

As Benj. Florance was then absent from this State on a trip to Europe, Kursheed applied for the temporary administration of the estate, for an inventory and for the appointment of an attorney of absent heirs.

Before he had had time to qualify and to take possession of the succession property, Benj. Florance, who had returned home, presented his superior claim to the position, and was forthwith appointed, and qualified as executor of the succession in Louisiana. All the legal proceedings instituted by Kursheedt were conducted by the opponent, Meyer Gutheim, whom he had retained as his counsel for that purpose.

On the accession of Florance to the executorship, Gutheim was not retained as the attorney of the succession, but a different attorney was employed. The question presented involves the right of Gutheim to claim compensation for his services from the succession.

The general rule, supported by reason as well as sanctioned by law and abundant authority, is that the attorney employed by a party to secure his appointment to the administration of a succession, has no claim against the succession if his client is defeated.

Generally suoli proceedings are injurious and not beneiicial to the succession, the speedy settlement of which is usually embarrassed and often impeded by such a contest.'

But the present case is a fair illustration of an exception to that ru le. Rursheedt had been named as an alternate executor under the will, and it became Ins duty during the known absence and consequent inability of the preferred executor, to institute preliminary proceedings for the administration of the succession. At his instance an inventory was made and homologated and an attorney of absent heirs was. appointed.

These conservatory measures enured to the benefit of the succession and through their adoption by the present executor, they have actually served as a legal basis and a proper foundation for all the subsequent proceedings which the executor has provoked and conducted.

Hence we think that in law and justice, the opponent Gutheim is legally entitled to a reasonable compensation for his services in causing an inventory to be made, and in securing the appointment of an attorney of absent heirs, and we shall fix his compensation at one hundred dollars.

We pretermit a discussion of charges of irregularity in some of Gutheim’s proceedings, from which has flowed some acrimony between him and the executor. Such a discussion is not necessary to a proper solution of the question presented under the issue, and would not sub-serve the ends of justice.

The judgment dismissing Meyer Gutheim’s opposition, is, therefore, reversed. His opposition is maintained and his claim thereunder is fixed at one hundred dollars, for which purpose the tableau of distribution is hereby amended at the cost of the succession in both courts.

The judgment dismissing Joseph Brewer’s opposition is affirmed at his cost as to his said opposition in both courts.


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    No. 9056.
    The State of Louisiana vs. Pinkney Johnson.
    An appeal will not 1)6 entertained in a criminal case whoro no sentence has beon passed or where the record contains no evidenoe of any sentence.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburn, J.
    •J. O. JSfjmi, Attorney General, for the State, Appellee.

      T. J. Oross for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

We gather from the record in this ease that the defendant was prosecuted for inflicting a wound less than mayhem with intent to kill. He was not sentenced to any punishment for that or any other offense, or, if he was, the record contains no evidence of it.

The' appeal, therefore, was premature and in the absence of any application to complete the record, the case is ordered to be stricken from the docket.