text:
    No. 7570.
    McCloskey, Bigley & Co. vs. Wingfield & Bridges. Charles J. Bush, Surety.
    Where a rule on the surety on a release-bond is made returnable in less than ten days, he-cannot complain that be was not allowed ten days to answer in, when it appears tbat he-voluntarily appeared and filed an answer two days before the return-day of the rule.
    Interrogatories on facts and articles in any case cannot be taken for confessed against a plaintiff who has actually answered, merely because his oath was not taken under a commission from the court before which the case is pending.
    Interrogatories will be taken for confessed against the plaintiff who has not answered, ® without any formal motion to that effect.
    The surety on a release-bond can set up no ground of defense to the judgment rendered against his principal, which the principal could not set up. If the judgment is goodi against the principal, it is also good against the surety.
    "Where a defendant dies, after having filed an answer, and his administratrix, is made party to the suit, it is not necessary that an answer should be made by her, or default taken against her.
    A valid judgment may be rendered against a partnership and its assets by citing the living partner, and the legal representatives of those who are dead.
    The administrator of a deceased defendant may be brought into a court of ordinary jurisdiction, and made party to a suit which was pending against the deceased at his death.
    The plea that a judgment against the principal is null because it was rendered on evidence-that was inadmissible, cannot be raised by the surety.
    In order to justify recourse on the surety it is sufficient if the sheriff’s return show that he could not after diligent search and inquiry find the principal, or any property of his; and that the plaintiff’s counsel was called on, and could give no inforiqation on either subject..
    Where one of the principals on a bond is dead, the plaintiff is dispensed from pursuing his-, succession, before moving against the surety.
    The binding effect of a second release-bond on the surety thereon is not impaired by the fact that the first release-bond had another surety, and had been canceled on account of the insufficiency of that surety.
    What is omitted in the conditions of a release-bond will he supplied by the court, and what is added to them will be ignored.
    It is the duty of the court to fix the amount of a release-bond with reference to the value of the property released.
    ^PPEAL from the Fourth District .Court, parish of Orleans. Houston*

      Bentinch Egan for plaintiffs and appellees.

      George L. Bright for surety, appellant.
    Bentinck Egan, for plaintiffs and appellees, contended:
    First — That a defense to the rule on the surety to hold him liable, setting up that defendant had not the notice he was entitled to by art. 239, O. P., should have been set up as an exception, and a judgment on it provoked, and not having done that, that defendant waived it. 31 A. 681.
    Second — A similar rule was taken on 31st August, 1875, upon which a judgment of dismissal was rendered against plaintiffs, who appealed to the Supreme Court: The judgment rendered by ihe Supreme Court has never been recorded and registered in this court, and therefore all subsequent proceedings had with a view of fixing the pretended liability of this respondent are null and void.
    Third — That said judgment of dismissal is res adjudicata.

    Fourth — That the surety is bound by the judgment against the principal. 2 R. 510 ; C. P. 259 ; 3 N. S. 575.
    . Fifth — That Wingfield was cited and made a party to this suit. C. P. 198 ; 29 A. 72 ; 17 L. 42 ; 14 A. 870.
    Sixth — That no default was necessary against the administratrix of Wingfield, who had been made party to the suit. C. P. 21.
    Seventh — -That after the administratrix of Wingfield had been made a party to the suit against Wingfield & Bridges a valid judgment could be rendered against that firm. C. P. 21, 361, 120; 9 R. 142 ; 3 A. 547.
    Eighth — A suit brought against a defendant in a court of ordinary jurisdiction may be continued in that court against the succession of the defendant. 30 A. 25 ; 29 A. 837.
    Ninth — That a final judgment cannot be attacked on the ground that it was rendered on illegal evidence. 1 A. 123 ; 2 R. 510.
    Tenth — That it is not necessary to issue execution against the succession of the principal, before proceeding against the surety. 1 A. 122; 10 A. 284; 11 A. 78 ; 20 A. 512 ; 22 A. 297 ; 21 A. 284.
    Eleventh — That assuming, for argument sake, that the bond was not in conformity to law, it would not be null. The law would re-form it, so as to make it in conformity with the conditions required by law. It has been repeatedly held by this court that, in whatever manner a party binds himself, he shall remain bound, may be true, in conventional obligations, but the rights of parties, and the effect of bonds, in judicial proceedings, are to be tested bij the law directing them to be taken. Welsh vs. Thorn, 16 L. 188; Sloeomb vs. Roberts, 13 L. 173 ; Welsh vs. Barrow, 9 R. 355 ; Baker vs. Morrison, 4 A. 373 ; 2L. 392. It has been repeatedly held that the law formed part of the contract in all judicial bonds. 12 A. 177, ib. 720 ; 20 A. 179.
    Twelfth — That the plea of the general issue made by the surety on a release-bond admits the execution of the bond. C. P. 324; 8 N. S. 300 ; 1 L. 488 ; 2 L. 420 ; 5 L. 33 ; 14 L. 361; 19 L. 86 ; ib. 88.
    George L. Bright, for the surety, contended :
    First — That the surety had'not had the ten days previous notice required by art. 259, O. P.
    Second — A similar rule was taken against him on 13th June, 1878, which was discontinued, and the plaintiffs have not paid the costs of the rule.

      The rule is on page 63. Its. discontinuance, page 66. The costs were not paid.
    Art. 492 C. P. After discontinuing the suit the plaintiff may bring his action anew, provided he has paid the costs of the first suit.
    The article is especially applicable to a suit discontinued. Howard vs. Copley, 10 An. 504.
    Third— * * ' * * *
    Fourth— * * * * *
    Fifth — The judgment rendered in favor of McCloskey, Bigley & Co., and against the firm of Wingfield & Bridges, composed of James H. Wingfield, deceased, herein represented by Mrs. Mary Ann Wing-field, administratrix, and against H. Q. Bridges, individually and in solido, is null and void because
    I. McCloskey, one of the plaintiffs, was, at the date of the institution of the suit and at the date of the judgment, dead; and there existed no such firm as McCloskey, Bigley & Co. See 1 R. 519 ; 16 A. 162 ; 22 A. 23 ; 29 A. 19 ; 29 A. 647.
    II. James H. Wingfield was never a party defendant to. this suit, and therefore the administratrix of his succession could not be made a party in his place.
    III. The administratrix having been made a party by order of court, and cited to answer the supplemental petition, no judgment could be rendered against her without issue formed by a judgment by default or answer, and respondent charges that no default was taken nor was an answer filed ; the exception filed was never dismissed.
    IV. Citation addressed as it was, to Mrs. Mary Ann Wingfield, admin-istratrix of the succession of her late husband, James H. Wing-field, issued and served after the death of Wingfield,- does not authorize a judgment against the firm of Wingfield & Bridges, nor against the succession of James H. Wingfield.
    V. That the Fourth District Court had no jurisdiction to make .the ad-ministratrix of the succession a party to the suit.
    VI. That the judgment against Wingfield & Bridges was not legally obtained, because it was rendered on inadmissible evidence, which facts the surety may plead. 2 R. 512.
    VII. The plaintiff has not complied with art. 259, C. P.: no fi, fa. ever issued against the estate of Wingfield; the writ was not issued in accordance with the judgment; no demand was made on the defendants ; and no sufficient return was made to enable the plaintiffs to proceed against the surety. See 11R. 266 ; 10 R. 138 ; 13 A. 264 ; 4 L. 301; 17 L. 416 ; 10 R. 63 ; 1 A. 123.
    VIII. The bond signed by Bush is null and void, because the sheriff had already taken the bond signed by Barbot as surety, and released the seizure, and had no authority to take the bond signed by Bush. The conditions of the bond are illegal and unauthorized by law. C. P. 259 ; 16 La. 173,188 ; 9 Rob. 535 ; 4 A. 373 ; 7 An. 539,570 ; 12 An. 68 ; 2 La. 398 ; 5 M. 629 ; 16 La. 188 ; 4 An. 3 ; 4 An.'59.
    IX. That there being no allegation of the value of the property released, the value cannot be shown.
    X. That the value must he shown. C. P. 279 ; 4 A. 373; Greiner’s C. P. art. 259 ; Revised Statutes of 1870, sec. 107.
   The opinion of the court was delivered by

Spencer, J.

Plaintiffs, alleging themselves to be a commercial firm composed of Peter G. Bigley & N. J. Bigley, doing business under name and style of McCloskey, Bigley & Co., sued the defendants, Wingfleld & Bridges, another firm, on an account, and attached a lot of coal, mules, carts, etc.

The defendants got an order of release of said attachment, conditioned upon their giving bond with good security, in the sum of $1500. They gave bond, with one Barbot as surety, and the sheriff turned over the property to them, and returned the bond into court. On the day following, the sheriff representing to the court that the defendants had deceived him and furnished an insolvent surety, the court ordered the bond to be canceled and returned to the sheriff, and directed him to reseize the property under the writ of attachment, which was still in his hands. The sheriff thereupon again took possession of the property, and the defendants, without objection on their part, or on that of the plaintiffs, came forward and executed another bond of release with Bush as surety, and the property was again delivered to them.

After filing a motion to dissolve the attachment, the defendants filed their answer. On trial of the rule to dissolve it was sustained, and plaintiffs appealed to this Court, by whose decree the attachment was reinstated. Afterward, on 21st May, 1875, judgment was rendered in favor of plaintiffs against the firm of Wingfield & Bridges, and against the partners, in solido, for $976. Defendants appealed, and this court declared the judgment a nullity, because Wingfield had died before its rendition and his representatives had not been made parties. Wingfield died after answer, but before judgment. On returning and filing this decree, plaintiffs caused Mrs. Wingfield, the administratrix of her husband’s estate, to be made party defendant, and she was accordingly cited. The administratrix excepted to the jurisdiction of the court, claiming that the’Second District Court alone had jurisdiction. This was overruled. She filed no further answer, and no default was entered against her. The case was tried again, and resulted in a judgment for' plaintiffs against the firm, and against the estate of Wingfield, and against Bridges, in solido, with lien and privilege, etc. No appeal was taken from, this judgment, which was rendered 8th May, 1878. On 15th July, 1878, plaintiffs caused execution to issue on this judgment; and on 21st September, thereafter, the sheriff returned the same, nulla bona, certifying that “after diligent search and inquiry, defendants herein could not be found; was credibly informed that they were non-residents of this city. H. H. Walsh, representing B. Egan, plaintiffs.’ attorney, was unable to give any information as to defendants, and failed to point out property for seizure, and the sheriff could not find any property belonging to the defendants herein,” etc.

On 6th November, thereafter, plaintiffs took this rule against Bush, the surety, to make him liable on the release-bond. The rule was made returnable on the 18th November, and was served on the 8th. On the 16th November, two days before the return-day, Bush filed his answer, setting up numerous defenses, which we will of necessity have to consider at length and in their order:

First. He complains that there were not ten days given him to answer. We have seen that he answered two days before the return-day. Besides, the case was on the return-clay continued till 16th December. He certainty had abundance of time, and suffered no possible injury.

Second. The costs of a previous rule dismissed by plaintiffs have not been paid. Of this there is no proof.

Third. The judgment of plaintiffs against the firm of Wingfield & Bridges, composed of Wingfield, deceased, and Bridges, is null and void, because

1. McCloskey, one of the plaintiffs, was at the date of the institution of the suit, and at date of judgment, dead ; and there existed no such firm as McOloskey, Bigley & Oo.

2. James H. Wingfield was never a .party defendant to the suit, and, therefore, the administratrix of his succession could mot be made a party in his place.

3. No judgment could be rendered against the administratrix until a default was entered, or answer filed by her.

4. Citation of the administratrix of Wingfield does not authorize a judgment against the firm of Wingfield & Bridges, nor against the succession of Wingfield.

In order to substantiate the first above ground of nullity, the defendant annexed to his answer interrogatories to be answered by each and every of the plaintiffs; and the court ordered them to be so answered. Peter G-. Bigley answered before a Louisiana commissioner in Memphis, where he then resided. N. J. Bigley did not answer. On the-trial, Bush moved to take the interrogatories for confessed, because one of the plaintiffs had neglected to answer, and because the answers of the other were taken before a Louisiana commissioner, but not under a commission from the court. The judge a quo refused the motion, without assigning of record any reasons. It is manifest that the interrogatories could not be taken for confessed against the plaintiff who did answer. The fact that the oath was taken before a commissioner of this State, but not under a commission from the court, is not, under the Code-of Practice, a ground for taking the interrogatories for confessed. It might be a good ground to refuse them admission in evidence for plaintiff. There is no doubt of the right of defendant to have the answers of both defendants. See 3 M. 503 ; 14 L. 297.

And there is no doubt of his right to have the interrogatories taken as confessed against the party failing to answer, and this without any formal motion, and on the trial. See 7 L. 522 ; 10 L. 713.

The difficulty is in determining the effect of so taking them as against one partner, and not as against the other. We incline to think that under the Code of Practice as it now exists (art. 354), when the answers of one establishes a state of fact different from that implied from the silence of the other, it would be necessary to treat it as we would the conflicting evidence of two plaintiffs sworn as witnesses, and,, therefore, decide according to the weight of evidence.

But we are dispensed from meeting this difficult question in this case. The suit was brought by Peter G-. & N. J. Bigley, as being the persons owning the claim and composing the firm of McCloskey, Bigley & Co. The judgment so recognized them, and decreed them to be entitled to the amount sued for. That judgment, plaintiffs’ counsel correctly maintains, is conclusive on the defendants’ security, because it is conclusive on them. It is clear that the defendants could not set up such a defense, neither can the surety. See Quine vs. Mayes, 2 R. 510 ; Alley vs. Hawthorn, 1 A. 122,126. The surety’s obligation is to satisfy the judgment against his principal. C. P. 259. If that judgment is-good against the principal, the surety cannot dispute its validity.

The question, therefore, whether P. G-. & N. J. Bigley were the rightful holders and owners of the claim sued upon, could not be raised by Bush, and the interrogatories propounded in that regard were immaterial and irrelevant. We will remark, however, that as a matter of fact, there is abundance of evidence in the record, outside of the answers of P. G. Bigley, to show that the two Bigleys were the true owners of the debt.

The second ground of nullity is directly contradicted by the record.. Wingfield was a party defendant, and filed his answer as such, and,. therefore, upon his death, his administratrix was properly made a party to represent him.

The third ground is not good. Where a party dies after answer, the .suit does not abate. There was no necessity of an answer by the admin-istratrix or of a default against her.

The fourth ground is equally untenable. The plaintiffs’ prayer was for a judgment in solido against the firm and each of its members. We .see no reason why a judgment may not be rendered against a partner•ship and its assets by citing the living partners and the legal representatives of those who may be dead.

It is in the fifth place urged that after Wingfield’s death his admin-istratrix could not be brought into the Fourth District Court, where the suit was pending. After great consideration, we have decided this •question to the contrary in Bussey & Co. vs. Nelson, 31 A., not reported.

It is urged in the sixth place that the judgment against Wingfield & Bridges was not legally obtained, because on the trial there was introduced in evidence by plaintiffs the testimony of certain witnesses, including that of one of the defendants, taken on the trial of the rule to dissolve the attachment. Without saying whether that testimony was properly or improperly admitted, its admission is no ground of nullity in favor of the surety. The case of Quine vs. Mayes, 2 B. 510, •cited by counsel, decides that it is absolute nullities that the surety may urge.

It is next urged that proper effort has not been made to obtain payment from the principals ; that the sheriffs return is insufficient. We have quoted that return. He says he could not after diligent search and inquiry find the defendants or any property of theirs ; that the plaintiffs’ ■counsel was called upon, and could give no information on either subject. We think the return sufficient, especially where there is no effort to show that defendants had any property. As to Wingfield’s estate, his death dispensed the plaintiff from pursuing that. See Alley vs. Hawthorn, 1 A. 122 ; 10 A. 284, and 543 ; 11 A. 78, 271.

It is further urged that the bond signed by Bush is null and void, because there had been a previous bond given with Barbot as surety. We have stated the facts in this regard, and need not repeat them. The Barbot bond was canceled by the order of the court and returned to the -sheriff, and the new bond given without objection. And why should not a defendant who has given an insufficient or fraudulent bond be permitted to give another, to make good his security ? The fact that the law makes the sheriff liable also, if he takes an insufficient bond, does not prevent defendant giving further security. It is his duty to do so. No law prevents it or ought to prevent it.

So far as relates to the conditions of the bond, there is no difficulty. What is omitted we will supply, and what is added we will retrench. This is well settled. The plaintiffs in the rule allege that the bond was given for $1500, under order of the court. The law makes it the duty-of the court to fix the bond with reference to value, and the averment was sufficient to authorize proof of the value of the property, which is shown by abundant evidence to be as much or more than the amount of the bond.

We thus, at great length, reach the conclusion that of the multitude of defenses made by defendant in the rule none of them can avail him. This was the result reached by the judge a quo, and he condemned the surety to pay the judgment up to the amount of his bond.

The judgment is correct, and it is affirmed with costs.

Rehearing refused.


source: Caselaw Access Project

author: DeBlanc, J.

license: Public Domain

text:
    No. 6052.
    A. Rochereau vs. Mrs. Jules Maignan et al.
    "Where several persons as heirs and legal representatives of a succession under administration are the owners in indivisión of a judgment from which a devolutive appeal is pending, the sale of the judgment will not he ordered to effect a partition, on the application of one of the co-owners opposed hy the others, when it does not appear that the administrator of the succession has made any effort to execute the judgment; especiallyin a case where the sale would inure to the benefit of one only of the coproprietors, and to the detriment of the others.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      Charles F. Claiborne for plaintiff and appellee.

      John & W. S. Finney for defendant and appellant.
    Charles F. Claiborne, for plaintiff and appellee, contended :
    First — That no one can be compelled to hold property in common with another. C. C. 1284. Each coproprietor has a right to a partition* which is made either in kind, when the property is susceptible of a division into parts, or by licitation, when the thing cannot be divided.
    Second — That a judgment is not1 susceptible of division. One of the first principles we learn is: that a judgment is one and indivisible. Succession Bougére, 28 A. not yet reported; 10 A. 455 ; 12 A. 346 ; 14 A. 329 ; 23 A. 26 ; 25 A. 476, 495.
    Finney and Miller, contra, contended:
    First — That the sale of a judgment by licitation for the purpose of a partition amoDg heirs is unwarranted. C. C. 1260, 1262, 1287.
    Second — That although a judgment for money is not susceptible of actual partition, it is of division. Raohal et. al. vs. Racbal’s Héirs, 10 L. R. 458.
    An obligation is divisible where it has for its object a thing which is divisible. 0. 0. 2104.
    Nothing is more susceptible of division than a sum of money, which is the object of the judgment against Maignan. A sum in simple division will accomplish it. C. C. Art. 2107 ; Code Napoleon, 1220.
    'Third — That there was no opinion of experts nor testimony of witnesses to show that the judgment was indivisible in kind, or that a division would be prejudicial. Lecarpentier vs. Lecarpentier, 5 An. 497 ; 6 An. 754; 7 An. 477.
    Fourth — That there is no provision in the judgment for an appraisement, as required by Art. 1247, O. C., nor family meeting to fix’'the terms of sale. C. C. 1263. In re Michael Dickson, 6 An. 754.,
   The opinion of the court was delivered by

DeBlanc, J.

Mrs. Lobit died, leaving as her legal representatives •three children who have attained their majority, and two grandchildren, who both are under age. Her daughter Nellie, and John Pemberton, 4he husband of said Nellie, were appointed as joint administrators of her succession, and — as such — obtained against Jules Maignan, a son-in-law of the deceased, a judgment for ten thousand dollars in principal.

Henry, one of the legal representatives of Mrs. Lobit, transferred to A. Rochereau — for two hundred and fifty deliars — his interest in that .judgment; and Rochereau — as his transferee — alleges that said judgment is not suseéptible of a division in kind, and prays that it be sold, •to effect a partition of the same.

His demand is resisted by the mother and tutrix of the minors, who ■denies the necessity and legality of the intended sale, and charges that its sole object is to procure a sacrifice of the judgment, to the detriment ■of her wards.

As the parties’ counsel, we have diligently searched, but in vain, for •a precedent which might assist us in deciding this peculiar controversy, and — to decide it — we have to follow the imperishable landmarks which lead to justice and right.

The Code does provide, as contended by Roohereau’s counsel, that ■no one can be compelled to hold property in common with another, but it does also provide that equality is the base of partition, and that it must be naturally observed between children and lawful descendants, when they divide among them the succession of their parents.

C. C. 1229 (1307) — 1398 (1436).

The first of those enactments grants an absolute right — the other guarantees a legitimate protection against the abuse of that right: and — in order to give effect to both, it seems not unreasonable to conclude, that a sale which would be entirely unavailing to any one of the coheirs or coproprietors, and inevitably detrimental to all, ought — if opposed by any one of them — tp be allowed by the court but as a last resort.

In matters of partition, the sale of the common property is generally ordered to prevent a diminution of its value, or to avoid to any one of the owners the loss and inconvenience which would result from its division in kind. C. C. 1339,1340 (1261, 1262). Could we, under that equitable rule, justly hold that a sale, the inevitable result of which would be to reduce the value of the common property, to divest a title for exclusively the benefit of one of the joint owners, to the detriment of the others, cannot be reasonably postponed, though it were evident that — if untimely made — it would destroy the equality of the partition, and entail on all, but one of the interested parties, loss and inconvenience? This seems doubtful.

Mrs. Lobit’s estate is still under administration, and it does not appear, and — to justify the intended sale — it must appear, that those who are administering upon that estate have made an effort to enforce the judgment held in common, and that the debtor has no property out of which it may be satisfied. If he has any, plaintiff can — without purchasing the entire judgment — fully exercise the right which he has acquired from one of the heirs, by compelling the administrators to cause to be seized and sold whatever said debtor may own and which is not exempt from seizure. If he possesses no property which can be reached by a writ, how can plaintiff’s interest be affected by continuing to be the joint owner of a barren judgment, the sale of which — unless intended for an unfair speculation, which we would not encourage and sanction — might entail on himself and the defendants useless costs and unproductive expenses ?

Before even an attempt to execute it, the saje of that judgment— which has been devolutively appealed from' — its execution cannot be detrimental to the parties, or to either of them. By its execution, the whole amount due may be realized and divided. By the sale, if not provoked to secure an illicit advantage, and this we are not authorized to presume, the interest of every one of the coproprietors in the judgment may be sacrificed, and — if not actually sacrificed — cannot, this is manifest, be subserved or promoted.

Considering — as we do — under the exceptional circumstances of this exceptional controversy,

1. That the succession of Mrs. Lobit- is still under administration, and the appeal alluded to still pending ;

2. That the administrators of her succession may be compelled to issue execution on the judgment, as it is, and for the joint benefit of all;

3. That, without the sale of the judgment, the parties’ rights under it may be enforced — not only more rapidly — but with less costs and expenses than otherwise;

4. That any sale of the judgment, before an attempt to execute it, must necessarily be prejudicial to the parties, and can but impair or destroy the equality of the contemplated partition — and

5. That the application to sell — with the certainty of reducing its value — a claim thus judicially acknowledged, and which — on demand, or by seizure — may be converted into money, is at least premature ;

It is ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed, and plaintiff’s demand dismissed as in case of nonsuit, at his costs in both courts.


author: Marr, J.

text:
    No. 7667.
    W. N. Rogers vs. W. F. Goldthwaite.
    This court will notice ex proprio motu that tlie amount in dispute is not sufficient to give it jurisdiction..
    The matter in dispute, on which the jurisdiction of this court depends, is the thing demanded in the petition.
    In determining the amount in dispute, the interest which has accrued up to the date of "bringing the suit must be added to the principal. Interest subsequently accruing is not to be estimated.
    Where this court has not jurisdiction of a case, it can make no order except to dismiss the appeal.
    QN Rule to Show Cause.

      W. W. Handlin for plaintiff in rule.

      J. Q. A. Fellows for defendant in rule..
    W. W. Handlin, for plaintiff in rule, contended :
    The decision was rendered in this case January 5,1880, five days after the new constitution went into force: An extension had been granted of thirty days to bring up the appeal, and the original papers defacto were filed with the rule, which was somewhat similar to a motion to dismiss, or to see if the appeal could be brought up on the following grounds :
    Eirst — That though the money demand was only $498, the real question was as to the title to the whole of the party wall belonging to the house of plaintiff and appellant, which was worth more than $500 dollars, and even more than $1000 dollars.

      ¡Second — That as appellant could not get a statement of facts, he was entitled to a review of the case for- error on the face of the record and opinion of the lower court without any statement of facts, as it was apparent that the court erred in considering it a personal action, barred by ten years, without title by the defendant and appellee. The authority for this ground was Winter vs. Reynolds, 24 An. 113, and other cases cited in the last ground of the rule.
    J. Q. A. Fellows, for defendant in rule, contended :
    'The plaintiff now seeks, in failure of the court to furnish a statement of facts, applied for over three months after the judgment was-signed and the appeal asked for, to have the original record, or a transcript thereof, and which does not include a word of the mass of oral testimony produced on the trial of the case, to stand as a statement of the facts of this case, and be placed on the docket, etc., for trial.
    First — The facts upon which the judgment was based can not be thus made up. He should have applied for a statement from the judge who tried the case before the judgment was signed and before the appeal was granted. Logan vs. Winder, 20 A. 253 ; Union Bank vs. Williams, 16 L. 236.
    'Second — The case, from the inspection of the petition and supplemental petition of the plaintiff, is unappealable, and of this the court would take notice, and dismiss the appeal on its own motion. Reynaud vs. G-usman, 28 An., not reported; Halpin & Moran vs. Maxwell, 24 An. 94.
    'Third — The affidavit is not sufficient to give the court jurisdiction. It does not state that the matter in dispute and his interest therein exceeds $500. His interest can only be what he claims, to wit: $498 57. State ex rel. Hero vs. Pitot, 21 An. 336.
   The opinion of the court was delivered by

Marr, J.

On the 2d January, 1879, plaintiff brought suit in the Fourth District Court, to recover of defendant $498 57, with interest from judicial demand, for half the cost of a boundary wall, $240 35, ■and legal interest from the 23d July, 1856. On the 14th January plaintiff filed an amended petition in which he stated that the interest would be something more than the sum demanded,' but “the overplus of which interest petitioner remits on account of the delays consequent to appeals in ordinary suits to the Supreme Court.”

The ease was tried ; and judgment was rendered 19th June, signed ' 1st July, 1879, in favor of defendant. Plaintiff obtained an order of appeal, on the 12th July, returnable on the first Monday of November,, on the affidavit of his attorney that his property, to which the boundary wall in question belongs, exceeds in value the sum of $500.

More than a month after the return-day, that is, on the 8th December, plaintiff filed a motion, in this court, stating that there was no minute of the evidence offered on the trial; that he had requested the advocate of defendant to join him in a statement of facts, which he-refused to do ; and that he applied to the judge, who refused to make any statement. On this showing a rule was granted, requiring the judge- and the defendant to show cause why the original record, submitted with the motion, “or a transcript thereof, should not stand as a statement of the facts of the case.”

This whole proceeding is anomalous; but we are arrested at the threshold by the want of jurisdiction, which was not disclosed in the-motion, but which is apparent from the original record, and which we are compelled to notice ex proprio motu. The value of the property to-which the wall belongs is not in controversy; nor is the title to that property in any way disputed. The plaintiff seeks to recover $498 57, .with interest from judicial demand; and the three cases relied upon to support the right of appeal have no application to this case. In the succession of Benneberg, 15 An. 661, the title to a lot of ground was in dispute ; in the State vs. Judge, 25 An. 621, the right of relator to erect, a wall od her property was contested ; and in Slaughterhouse Company vs. Larrieux, 30 An. 798, the rights and privileges of the corporation, under its charter, were involved.

The jurisdiction of this court, in ordinary civil suits, is limited to cases in which the matter in dispute shall exceed $500 ; and the matter in dispute is the thing demanded in the petition. It is well settled that the interest which has accrued up to the date of the bringing of the suit must be added to the principal; but the interest which may accrue after judicial demand cannot be considered in order to determine-whether the amount in dispute is sufficient to give this court jurisdiction. C. P. 91; Pujol vs. Correjolles, 5 Rob. 90 ; Mason vs. Oglesby, 2 An. 793. It is the amount due and demanded which determines the right of appeal.

This court is clearly without jurisdiction of a demand for $498 57 with interest from judicial demand. We have no authority to proceed further on the motion of plaintiff, except to dismiss it for want of jurisdiction, as we shall do, without expressing any opinion on its merits.

The motion is therefore dismissed ; and the rule returnable on the 15th December, 1879, is discharged, at the costs of the mover.


author: White, J.

text:
    No. 7582.
    Mrs. Catherine Grant et al. vs. Mrs. Catherine Maier, Administratrix, and Wm. A. Moore, Tutor.
    A natural tutrix who remarries without convoking a family meeting to advise as to her continuance as tutrix ipso facto ceases to "be tutrix, and thenceforth she is without power to hind the minor by any acknowledgment express or implied. She cannot, for example,, interrupt the prescription of a note on which the minor is hound, by paying interest on and obtaining renewals of the note.
    The payment of interest on anote binding on minors, made by their tutrix, does not suspend prescription for the term of her gestión.
    "Where one as tutrix of her minor children, and after she ceases to be tutrix, makes renewals of a note on which the minors, and she as widow in community, are bound, the renewals will interrupt prescription as to her.
    The authority of the husband is not required to enable the wife to pay interest on the debt ' due by her separate estate.
    A PPEAL from the Fourth District Court, parish of Orleans. J. Houston*

      Horace L. Dufour for plaintiffs and appellees.

      Dalton & Walker for defendants and appellants.
    H. L. Dufour, for plaintiffs and'appellees, contended:
    First — That there is no law preventing an administrator from renewing-notes considered by him as valid, if he deems it the best policy in the course of a prudent administration. The only prohibition is. against changing the nature of an obligation, or creating a new re-sponsibilty. 12 R. 16 ; 9 R. 276.
    Second — That if the renewals previous to Catherine Maier’s second; marriage (March 12, 1873,) were made by her as administratrix of" her first husband’s succession, then the property is bound for such,, though her official capacity does not appear from the signature.. If, on the contrary, she signed the note in her personal capacity as-widow in community, her share is still liable for one half of the-debt.
    Third — That the interests of minors might be lost through the action of one who had been tutrix, but who had ceased to be such when the! act was consummated. 31 A. 52.
    Dalton & Walker, for defendants and appellants, contended:
    First — That at no time before her second marriage did .Catherine Maier,. in her capacity as tutrix, interrupt the prescription of the note that she was the widow in community, and every renewal previous to that time is in her own name. She was never authorized by the court to renew the note as tutrix ; and she never did so of her own volition. She acted for herself, individually, as widow in community. Minors are not to be bound by conjectures and implications, when the mother was plainly acting in her own behalf.
    Second — That when the widow in community renewed the note, after she became the wife of Schadele, she was no longer tutrix, or adminis-tratrix, and hence her renewals of the note, as such, were not binding on the minors.
    Third — That even if she had renewed the note, in her capacity as tutrix, previous to her second marriage, the most that can be said is, that in such a case the note would have been subject to the same prescription that attends the renewal of every other promissory note. 9 A. 15; 12 B. 511; 16 A. 422 ; 20 A. 345.
    Fourth — That a married woman cannot renew a note without the authority of her husband. 17 A. 299 ; O. 0. 3462 ; 0. O. 1782.
   'The opinion of the court was delivered by

White, J.

The plaintiffs seek to enforce the payment of a note of 'Christoph Maier, deceased, which became due March 30, 1870. Mrs. Maier, formerly widow in community of Maier, now the wife of Schadele, ■and Wm. A. Moore, tutor of the minors Maier, oppose the prescription •of five years. The case is twofold. We will first determine it as to Moore, tutor. Maier, the maker, died in January, 1870. His widow -qualified as tutrix of her minor children. As such she paid the interest ón the note April 2,1870,1871, and April, 1872, the note when the last payment was made having been extended to 30th March, 1873. In June, 1872, she filed, as tutrix and administratrix, an account in which she debited herself with the payment of interest made in April, 1871, and 1872. The note then, as we have seen, was by the last payment extended to March 30, 1873. In March, 1873, the Widow Maier married Schadele without convoking a family meeting to advise as to whether •■she be continued iu the tutorship. In April, 1873, she paid interest and ¡renewed the no te for one year, signing the renewal as Catherine Maier. In 1874 she did the same thing, signing, however, as Catherine Maier, tutrix ¡and administratrix. She renewed in like manner in 1875, and paid interest, obtaining renewals for 1876 and 1877. The maturity of the note •having thus been brought to March 30,1878, it was clearly not prescribed when the present suit was brought, on the 23d March, 1879, if the renewals operated as interruptions of prescription quoad the minors. It .is contended that those made after the marriage did not, because, owing to the failure to convoke a family meeting, the tutrix ipso facto ceased to be such, and as a consequence ceased to have power to represent the ¡minors, or to bind them by any acknowledgment, express or implied. We are reluctlantly compelled to give our adhesion to the proposition. We say reluctantly, not with reference to the abstract legal proposition,, but to the consequences of its present application; for the evidence-shows that the indulgent creditor was unaware of the second marriage while the various renewals were being made, and by which he was deluded. That a natural tutrix who remarries without convoking a family-meeting is ipso facto removed, results from the unambiguous text which has been often applied. C. C. 254.

If, then, the remarriage under the facts disclosed here operated by the sole legal force of things the vacation of the tutorship, Mrs. Maier was-not the tutrix. If she was not, she was without power to bind the-minors by an acknowledgment. If without power, no interruption resulted quoad the minors. The deduction seems inevitable from the-premise, which is the text of the Code. It said, relying on Eenshaw vs. Stafford, 30 A. p. 853, that as Mrs. Maier was tutrix administering, and as in her account she acknowledged having paid interest on the note in. 1871 and 1872, the prescription thereagainst became suspended until the-termination of her gestión.

The admission of this proposition would entail as a legal conclusion-that debts could never prescribe against minors during tutelage. The doctrine iu Eenshaw’s case proceeded upon the theory that property under administration was in gremio legis, impressed with the seal of the court, and held by a common agent of all for the benefit of all. Such is not the case with a tutrix, who holds for the minors. True, a tutrix may administer, if the creditors are silent; but her possession is none the less that of the beneficiary heirs, whose right to possession does not depend on a previous administration. Soye vs. Price, 30 A. 93.

As to Mrs. Widow Maier, wife of Schadele, we are clear that the renewals operated an interruption of course for her half as widow in community only. It is said that as without the payments or renewals made after the second marriage prescription has accrued, and as the payments of interest after the second marriage are not shown to have-been made by the authority of the husband, therefore they are null hence the note is prescribed. The authority of the husband was not required to enable the wife to pay interest on the debt due by her separate estate. Brooks vs. Wigginton, 14 A. 676. Of course the renunciation of prescription is an act of alienation. • But not so with interruption.

The judgment below is reversed as to the opposition of W. M-Moore, tutor, and affirmed as to Mrs. Widow Catherine.Maier, now wife of Schadele. That the right of plaintiff to enforce one half of the note upon one undivided half of the mortgaged premises be and the same is-hereby recognized. The costs below to be equally divided, as also those of the appeal, between the plaintiffs and Mrs. Catherine Schadele.


text:
    No. 7593.
    Succession of Frederick Hautau.
    Tbo executrix: cannot bo held Hablo for tbo difference in value between tbo first appraisement of succession property in tbe inventory thereof, and tbo price for which it sold under a second and third appraisement, ordered by the court, in the absence of all proof of fraud, or evidence of unfairness of price.
    An account of an executrix cannot be opposed on the ground that she has not sold the succession movables, when it appears that she has debited herself with their value.
    "When it appears that it was necessary to employ a surveyor to make plans of succession property in order to effect their sale, the executrix will be allowed a reasonable charge for the work.
    ‘The executrix is not authorized to advertise the sale of succession property in more than one newspaper.
    The fees of experts who appraise succession property at a second or third appraisement ordered by the court cannot be larger than is allowed bylaw to the appraisers appointed to take the inventory.
    The fee-bill of the clerk of court allowed by the lower court will not be disturbed by this court when nothing is said to indicate to this court what items of the bill are excessive.
    The costs of an executory proceeding against mortgaged property of succession, commenced in a court of ordinary jurisdiction before the appointment of a tutor of the minor heirs of the succession, constitute a privilege debt of the succession.
    "When it becomes necessary in an insolvent succession for the mortgage creditors to contribute to pay the privilege debts of the succession, the burden of the contribution falls on the junior mortgage, even in cases where the creditors have different mortgages on different properties. ,,
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      A J. Villeré for administratrix, appellee.

      G. JS. Schmidt for Monoski, appellee.

      W. S. Benedict for opponent and appellant.
    A. J. Villeré, for administratrix, contended :
    First — That the administratrix therefore submits that she cannot be held liable for the original appraised value of the said property, when the appraisement under which it was sold was ordered by the court, after a public crying had satisfied the lower court that the original appraisements were incorrect. Besides, the opponent has failed to show that the property was worth any more than it was sold for.
    Second — That the administratrix not being liable for the original appraised value of the property adjudicated to strangers, she should not certainly be held liable for said appraisement for the property purchased by her for her homestead.
    'Third — That the appraised value of the furniture is accounted for by the administratrix in her account; a sale of said furniture would have occasioned unnecessary costs. The opponent has not proved that it was worth more than the appraisement.
    'Fourth — That the law does not limit the publication of judicial advertisements in any particular newspaper, nor does the law designate any official newspaper for judicial advertisements.
    Fifth — That the experts’ fees are not governed by the act of 1870, p. 66, as contended for by the opponent. This act establishes a fixed and determinate compensation for appraisers assisting the notary at the taking of inventories, without regard to the duties more or less difficult or onerous which they have to perform. It is an act which is in derogation of common right, and should be strictly construed, and not extended to cases not falling within its letter.
    'Sixth — That the costs placed on the account have not been proved in the lower court to be overcharged.
    'Seventh — That the administratrix is entitled, at least, to the amount allowed her by the lower court for her commission, say two and one half per cent on the amount distributed; no mismanagement is shown ; she has accounted for every cent of the succession.
    It is charged that the administratrix did not deposit the moneys of the estate in bank. Her testimony (T. p. 165) shows that she has not seen a cent of the proceeds of the sales.
    W. S. Benedict, for opponent and appellant, contended :
    First — An administratrix has no right to credit herself with inventoried value of property ; the same must be sold.
    'Second — An administratrix has no right to have plans made of succession property at the expense of the estate.
    ‘Third — An auctioneer making sale under order of court cannot be allowed any more for advertisements than the price he actually pays for such advertisement, once a week for thirty days, in one newspaper.
    Fourth — The law makes no distinction between appraisers and experts in estimating succession property under inventory or otherwise. The allowance cannot exceed four dollars for each full day’s time necessarily incurred.
    C. E. Schmidt, for Monoski, the creditor holding the oldest mortgage, -contended: '
    "That the loss resulting from the payment of the general privileges in this case must be borne by the creditor holding thé youngest or most recent mortgage, although the competing mortgages bear on different pieces of property, and even if the propérty last mortgaged had not been acquired by the mortgagor until after he had granted the mortgage first in date.

      That the doctrine under the old French law, as well as under the Code Napoleon, had always been “qui prior est tempore, potior est jure."' That the framers of the Code of 1825 had inserted in it the article-3236 (3269), for the very purpose of making our jurisprudence harmonize with that of France, owing to the erroneous doctrine which had been laid down by our Supreme Court in 1818, in the case of Delor vs. Montegut, 5 M. 468.-
    As to the costs incurred in the suit of Monoski, in the Third District Court, they were taxed costs, and as such, under the rulings in Rousseau vs. Creditors, 17 L. 206, and Barkley vs. Creditors, 11 R.. 28, must be classed as privileged law charges on the tableau.
   The opinion of the court was delivered by

White, J.

The account of the executrix was opposed by various creditors, the principal opposition being that of Mrs. Widow Le Franz. Some of the opponents withdrew their complaints before trial, which resulted in a judgment rejecting in the main the pretensions of Mrs-Le Franz, from which she appeals.

We will notice only those questions, twelve in number, urged in the-brief of counsel:

First. That the executrix is liable for the difference in value between the first appraisement of the property and the price for which it sold. The succession was opened in the month of December, 1878, and by the inventory, which was taken on the sixteenth of that month, the appraised value of the real estate was $11,300. Subsequently, in March,, upon representing that there was a mistake in the first inventory,, caused by the lines of the lots being erroneously mentioned, the court ordered a new appraisement and appointed experts for that purpose.. The property, it seems, was before this new appraisement examined by a surveyor, who made plans of it, by which it was redescribed and revalued on the 3d March, 1879, for $9800. This re-appraisement was-made pending an advertisement of the property for sale, the terms as-fixed by the order of court being one half cash, and the remainder at one and two years credit. In accordance with the advertisement, the-property was offered on the 11th March, and only one piece was sold,, in consequence of the inadequacy of the bids; the one sold having been bid in by the executrix for her own account at the price fixed by the second appraisement, which was two hundred dollars less than the first valuation. The executrix then prayed a second appraisement, averring ythat the valuation was so high that the property could not be sold under it. The property was under order re-appraised at $4200, and was re-advertised, the terms being one third cash, and the balance at one and two - years, and was sold on the 19th April for $5535. We are at a loss to-understand under this state of facts upon what principle the opponent expects to recover from the executrix the difference between the amount of the sales and the sum of the first appraisement. The second ap-praisement was rendered necessary by the error of description in the first inventory. Even granting the irregularity of the third, such state of things would not make the executrix personally liable in the absence of all proof of fraud or evidence of unfairness of price. The opponent does not attack the sales; on the contrary, ratifies them, and yet seeks to recover more than the price, upon the theory that the property did not ’ bring an adequate price, although the price equaled the estimated value of the last appraisement.

Second. That the executrix should be charged with 8412 47 rent collected, or which should have been collected. The court below found that the sum of 822 ought to be debited under this item, and a careful scrutiny of the testimony satisfies us as to the correctness of its conclusions.

Third. That the executrix has not sold the movables, but has charged herself with their inventoried value, 899. The court below finding that there was no proof of the inadequacy of the valuation in the inventory, and considering that this item had not been insisted on, overruled it. We think with the court below that there is no proof that the valuation in the inventory was unfair. We do not, however, consider that the executrix could become the owner by simply debiting herself with the price.

Fourth. De Armas’ plans, forty dollars, claimed as improperly allowed. The second description and re-appraisement was made on plans drawn by this surveyor. They were averred to be necessary in consequence of the irregularity of the lines ; by them the property was redescribed, re-appraised, advertised, and adjudicated. Under this condition of things, whatever may be ordinarily the right of an executor to incur the expense of making plans, we think the charge, which is shown to be reasonable, was properly allowed.

Fifth. The following items are objected to : Advertising, Times, $71 40 ; Picayune, 871 40 ; German Gazette, 826 60 ; posters and posting, 810. The court below reduced the amount as follows: Times, $35 70 ; German Gazette, 13 30 ; Picayune, 835 70 ; the charge for posting was allowed. There is before us no prayer for the amendment of the judgment, and the only question is, were the amounts properly allowed. The proof shows that the expenses for posting is usual, and was actually incurred. For the advertisements, the sum allowed by the lower court is less than the legal rate, the complaint before us being that the advertisements were inserted in more than one newspaper. The proof is that the advertisements were actually inserted by the auctioneer by order of the executrix, and the sums allowed were by him disbursed. It may well be that the insertion in more than one paper was of advantage to the estate. The law has, however, pointed out that legal advertisements are to be inserted in a " daily paper.” Acts of 1878, p. 157. "We cannot, therefore, allow for the publication in more than one daily paper. These items should, therefore, have been reduced to $85 70, for which sum the executrix was entitled to credit.

Sixth. Four charges of twenty dollars each were allowed as fees to the experts who made the second and third appraisements. The lower court sustained the charges, on the theory that as the parties were not the appraisers appointed to take the inventory, their fees were not, therefore, governed by the law regulating those to be charged by appraisers. We are unable to grasp the distinction. The parties were certainly appraisers of succession property, and were appointed as such. The law fixes such fees at four dollars per vacation; there was one vacation, as is shown by the inventory, and one in making the re-ap-praisements. The sum of eighty dollars should be reduced to sixteen; that is four dollars for each of the appraisers for each appraisement.

Seventh. Clerk’s costs, $45 05, is opposed as being illegal. Counsel in their brief say that an examination of the fee-bill will disclose that this item is excessive. Nothing is said to indicate what items are excessive, and as the judge below allowed the amount, and no particular items are called to our attention, we will not disturb the judgment below. We cannot be expected to analyze and examine each and every item of a fee-bill where the parties or their counsel have not thought proper to do so.

Eighth, ninth, and tenth. Clerk’s costs, Third District Court, $22. C-authreaux, sheriff, $9 50 ; J. Meunier, $15. These items result as follows : Monoski, a mortgage creditor of the deceased, before the appointment of a tutor to the minors commenced proceedings via executiva to enforce his claim. The minors being unrepresented, a tutor ad hoc was appointed, and his fees, as well as the costs above mentioned, after being taxed were placed on the account as a privilege debt of the estate. They were correctly so placed. Rousseau vs. Creditors, 17 L. 206 ; Barkley vs His Creditors, 11R. 28. So far as the amount of the clerk’s bill is concerned, it is covered by what we have previously said.

Eleventh. The claim of the executrix for commissions, $284 97, was opposed as excessive, and because no commissions were due her, in consequence of maladministration. The court below, considering that no maladministration had been shown, did not reject the claim in toto but reduced it to $163 37, the reduction having been brought about by calculating the commission on the amount of the last appraisement. 'Whether the reduction was or not correctly made, is not before us for . review, no amendment of the judgment having been asked. We agree with the court below in thinking that the charged maladministration has not been proven. The charge of failure to deposit money in bank is, we think, removed by the fact that no money came into the hands ■of the executrix, unless it be the small sum collected for rent, to which we have previously adverted.

Twelfth. There were three mortgage creditors; the succession was insolvent, and it was necessary that one of them contribute to pay the privileges. The account placed the burden of so doing on the junior mortgage. It was properly so placed. Devron vs. His Creditors, 11 A. 482 ; Deverges vs. His Creditors, 18 A. 169 ; Succession of O’Laughlin, 18 A. 142 ; Ventress vs. Creditors, 20 A. 359 ; Succession of Rousseau, 23 A. 3; Succession of Marc, 29 A. 414. It is now said that the rule enunciated by the current of authority does not apply, because the creditors had different mortgages on different properties ; the argument is answered by the authorities quoted. True, Devron’s case was decided by a divided court, but the doctrine taught by it has been followed by too long a line of precedents to render a re-examination either necessary or proper. It is urged that this case does not fall within the rule, because the property upon which the junior mortgage rests did not belong to the debtor at the time the other property was mortgaged. ' The fact upon which the distinction is predicated is not sustained by the record; if it were, it would not be sufficient to take this case out of the rule first applied in Devron’s case, and since uniformly followed. That rule results from applying the maxim “ Qui prior esi tempore, potior est jure.” The test is not the date of the acquisitions, but of the mortgages. The reasoning of the court in the succession of Rousseau seems to us conclusive of this issue. ' *

It is therefore ordered, that in so far as the judgment below allowed for advertisements the sum of $84 70, it be reduced to $35 70 ; and that the amount allowed the experts be reduced from $80 to $16 ; -that the credit of $99 for the furniture be disallowed, and the executrix toe ordered to sell the furniture as required by law. That in all other gespects the judgment be affirmed, with costs in both courts, in favor of ■opponent.


author: DeBlanc, J. White, J.

text:
    No. 7633.
    State ex rel. Board of School Directors of the Parish of Tensas vs. Allen Jumel, Auditor.
    The Auditor of the State can not be compelled by a mandamus to levy a certain tax, even though, an act of the Legislature has made it his express duty to do so, when it appears-that his doing so would be in disregard of a final decision of the Supreme Court pronouncing the act to be unconstitutional and in direct contravention of a subsequent act of the Legislature.
    APPEAL from the Third District Court, parish of Orleans. Monroe,

      E. Howard Farrar for relators and intervenors, appellees.

      H. N. Ogden, Attorney-General, for defendant and appellant.
    E. EC. Farrar, for relators and intervenors, appellees, contended:
    First — Art. 831 of the Code of Practice declares that the writ “ may be directed to public officers to compel them to fulfil any of the duties attached to their office, or which may be legally required of them.” See, also, High on Extraordinary Remedies, chap. 2, subdivision vii. and ix.; Moses on Mandamus, chap. xi. p. 84.
    Second — The State, which was not a party on the record below, intervened after judgment and took this appeal. The Auditor did not appeal. In this court the State attempts to raise in argument the constitutionality of the law upon which the proceeding is based. The Auditor-did not raise such a question in his pleadings; the State has filed no-assignment of errors here. This was the only possible way that an error of law appearing on the face of the record could be urged in. this court.
    Third — The unconstitutionality of a law cannot be urged under the plea-, of the general issue. Such a defense is strictly special, and the party who urges it must make it out beyond question. 2 Overton,. 168!
    Fourth — The State is estopped from setting up the unconstitutionality of Act No. 81 of 1872. Bigelow on Estoppel, p. 276; Hermann, sec.. 219; 8 Pickering 224; 4 Peters 187; 4 Benn. 231; 7 Oal. 527; 22 Ala. 699; 13 An. 302; 3 Marsh 515; 5 Bush (Ky.) 230; Cooley, p. 215; 25 An.. 68; 28 An. 462.
    H. N. Ogden, Attorney-General, contra, contended:
    That Act 81 of the year 1872, having been declared unconstitutional by-a final decree of the Supreme Court, the Auditor could not be compelled by a writ of mandamus to carry out any of its provisions.
   The opinion of the court was delivered by

DeBlanc, J.

In 1843, the Congress of the United States authorized the Legislature of Louisiana to provide — by law — f or the sale of the lands which, previously, had been reserved and appropriated for the use of schools, and to invest — in some productive fund — the price of the authorized sale.

In pursuance of that Congressional enactment, the Legislature of Louisiana created and organized the free-school fund, and directed the issuance of State bonds, for an amount equal to that of its indebtedness to that fund, the assets of which — according to legislative and constitutional provisions — were to be perpetually held in trust, and never diverted to any other purpose than that for which the lands had originally been reserved and appropriated.

In 1872, the Legislature — disregarding those constitutional and legislative provisions — abolished the free-school fund, ordered the sale of the State bonds belonging to it, and directed a flagrant diversion of its .assets.

The bonds were sold, the proceeds of the sale misapplied, and the ■schools divested of a fund which had thrice been declared inviolable. In order to palliate what we have already denounced, and still consider -as an act of spoliation, the Legislature by which it was perpetrated, •evinced, and — it may be — feigned—by an usual enactment — an intention to retrieve a manifest iniquity, and to repair the injury which — otherwise — was to result therefrom.

That enactment is as follows: “It is hereby made the duty of the Auditor of Public Accounts to ascertain annually the aggregate amount which luould be due the several parishes, from the free-school fund, if it were retained in the form in which it was prior to the passage of this .act, and to levy and collect a special tax to provide for the payment of the same to the several parishes, when due — as if the free-school fund Jiad not been abolished.”

Third section, Act No. 81, of 1872, p. 135.

Is the duty thus imposed a purely ministerial duty, unconnected with the exercise of any discretion ?

The Auditor is the head of one of the executive departments of the ^government, and — as such — the general accountant of the State. That he may be compelled, by mandamus, to perform a peremptory and .absolute duty, there can be no doubt — but there is as little doubt that, by the very nature of his functions, he is often required to exercise discretion. In this instance, and under the power delegated to him by the ■statute of 1872, what is he commanded to do ?

1st. To ascertain annually the aggregate amount which would be clue the several parishes, from the free-sohool fund, if it had not been abolished; and

2d. To levy and collect a special tax to pay to the parishes that aggregate amount, as if that fund had not been abolished.

When the relator’s application was filed, the Auditor had, staring him in the face, Act No. 8 of the Legislature of 1878, fixing at thirteen mills on the dollar, the annual ad valorem, tax levied for the purpose of supporting the government, to pay the public debt, and repealing all parts of laws in conflict with its provisions. He had too the decision in “Durant vs. the Board of Liquidation,” in which we held “ that the-statute relied upon by the relators violated the faith of the State, the-conditions of the Congressional bounty, the legislation by which it was-carried into effect, and the constitution of Louisiana — that the State’ could not, at its pleasure, abolish the obligations created by the act of' Congress, ratified by its own legislation, and that the injunction to the-Auditor to levy and collect a tax to pay interest on the diverted fund,, was not a compliance with the Congressional act.”

To do, as the Legislature commanded, the Auditor would have to disregard that decision, to assume that it is erroneous and the law constitutional, and to levs’- — under the act of 1872 — a tax which, necessarily, would have increased and exceeded the rate of taxation fixed by that of 1878. His obedience to the first, the invalidity of which had been judicially pronounced, would have amounted to a disobedience of the latter* Ho had to select between a condemned statute, and the decision by which it had been condemned.

Pretermitting any discussion as to the constitutionality or unconstitutionality of the act of 1872, or any of its sections — pretermitting any opinion as to whether the act of 1878 was or was not an insuperable-impediment to the levy and collection of the tax herein referred to— pretermitting any adhesion to the views expressed in the Durant case— they, that law and that decision, stood — at the date of the relator’s, application — unrepealed and unreversed, and — by that law — the rate of taxation was limited to thirteen mills, and — by that decision — the act of 1872, a compliance with which would have increased that rate, had been pronounced unconstitutional.

Were we to hold that the Auditor should have disregarded our construction of the statute of 1872, and disregarded a law, which — apparently at least’ — was an obstacle to the execution of that under which we are asked to compel him to proceed, would it — on our part — be less-than an acknowledgment that he is not to be guided by our adjudications, and that he is bound to comply with the provisions of an enactment, which — according to our own decision — has never legally existed ?

• Placed — as he was — between the law, which commanded the performance of an important task, and the judicial construction which negatived the very existence of that law, the Auditor — guided by that construction — refused to perform the required task. He had to pause, to reflect, to consider, to compare, to choose; and this plainly shows that he was not called upon to discharge a purely ministerial and incontestable duty, or to execute an evidently constitutional and valid enactment.

The claim on which the relators have based their action, is a just and a sacred claim, one due by the State to her own people, one which could not — honorably—be ignored or repudiated, and which — it seems— could be successfully urged in a memorial to the General Assembly, to the immediate representatives of the creditors of that diverted fund. To them and them alone, those creditors can look for another, a proper enactment, which would effectually compensate the loss which they have sustained. Here, they cannot be relieved; for it is now settled that “ the writ of mandamus will not issue, in any event, to compel a ministerial officer to perform a duty required of him by a statute which was declared void.” High, Ext. Rem. p. 77, No. 96.

In “ McCurdy vs. Tappan,” the Supreme Court of Wisconsin said : The only remaining point argued by counsel for the relator, which requires particular notice is that, conceding the act of 1869 to be void, still the town clerk, who is a mere ministerial officer, had no power to pass upon its validity, and that it was his duty to levy the tax to pay the award, unless restrained at the suit of some person competent to raise the question of validity. We do not think that position tenable. The act being void, it binds no one, and any person may assert its true character and refuse to obey it. Besides” — the court added — “there can be no doubt that the taxpayers of the town could have maintained an action to enjoin the levy of the tax, and the town clerk, by refusing to levy the same, acted — in a certain sense — as their representative.”

29 Wisconsin, p. 686.

It has been held that a law, and even one of the sections of a law, may contain provisions which are, and others which are not constitutional, but this happens when those provisions are “ perfectly distinct and separable, so that one may stand though the others fall.”

6th Gray’s Reports, 485.

It would be, as justly remarked by Mr. Cooley, “inconsistent with all the principles of constitutional law to adjudge that enactments are void, because they are associated in the same act, though not connected with or dependent on others which are unconstitutional” — and he adds: “ Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning, that it cannot be presumed the Legislature would have passed the one without the other.”

Cooley’s Const. Lim., 3d ed. p. 177.

“And if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the Legislature intended them as a whole, and if all could not be carried into effect the Legislature would not pass the residue independently, then if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them.”

Cooley’s Const. Lim., 3d ed. pp. 178 and 179.

The third section of the act of 1872 embraces three germane clauses enacted but for one purpose: to reach the free-school fund and dispose of the same. By the first, that fund was abolished — as a compensation for the injury inflicted by the first, the second ordered the levy of a tax, and the last, without which the others would not have been thought of and enacted, transferred to a fund created by said act, whatever then belonged to that which had been abolished.

The unlawful purpose which produced two of those clauses, is the unlawful tie by which they are all linked the one to the other, and — that tie unfastened — they must share a common destiny, and fall as they were conceived and enacted — together.

Were we to prop with technicalities the too isolated fraction of an entirely tainted statute, we would — by as timid as useless a decision— but postpone a general attack, by the taxpayers, on that indefensible fraction, and hundred of controversies would inevitably retard a restitution which, otherwise, may soon be demanded, and granted as soon as demanded.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is annulled, avoided and reversed, and the relators’ application and intervention discharged at their costs in both courts.

Rehearing refused.

Dissenting Opinion.

White, J.

I dissented from the conclusion of the court in this case, but further reflection has caused me to conclude that I should have given my adhesion to the opinion and decree. The difficulty in my mind lay beyond the Durant and Sun Mutual Insurance Company cases —was engendered by a doubt as to the' correctness of the rulings there made, but, as I now think, these doubts should not have influenced me, under the rule of stare decisis. I put of record not the reasons for my dissent, but my adhesion to the decree of the court.