author: Ludbling, O. J.

text:
    No. 973.
    Phedora Girouard et al. vs. Sosthene C. Broussard, Administrator.
    This is a suit by tho heirs of the deceased to compel the administrator to render an-account ivithin ten days from service of the order. The administrator, having taken a suspensive appeal from that order and filed his bond, failed to bring up-the transcript, but the appellees did, and claim damages for a frivolous appeal. To grarft this prayer would be to punish the creditors and co-heirs of tho deceased and not the administrator, who has abandoned the appeal, and there is no money judgment.
    APPEAL from the Parish Court of Lafayette parish. Moss, J.

      Wil-Horn Iiibbe, Mouton & Debaillon, for plaintiffs and appellees.

      Eugene Mouton, for defendant and appellant.
   Ludbling, O. J.

The plaintiffs, heirs of the deceased, sued the defendant to compel him to render an account.

He was ordered to render an account within ten days from service of' the order. Having failed, another order was issued commanding the administrator to comply with the order of court; From this order he obtained a suspensive appeal and filed his bond, but failed to bring up the transcript, which has been filed by the appellee, who prays for damages for a frivolous appeal.

To grant this prayer would be to punish the creditors and co-heirs of the deceased and not the administrator, who has abandoned the appeal. There is no money judgment.

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


source: Caselaw Access Project

author: MoegaN, J.

license: Public Domain

text:
    No. 877.
    Guilbeau Bros. vs. Jos. Melancon.
    New parties may be made at any time pending the trial of a ease, provided the trial is not delayed or the issue changed. As to the right of the administrator of the deceased partner of plaintiffs to join in this suit, it is undeniable. The matter which is before this court is not of a commercial character. It involves the title to real estate. Commercial partners may own real estate, but the real estate owned by them does not enter into their commercial assets. As regards that species of property, they are joint owners. In such a suit it was not only the right, but it was the duty, of the administrator of the partner who had died to make himself a party to that suit in order that the interest of the partner in the property should come under his administration.
    That Guilbeau Brothers are the owners of the draft sued upon is evident from the fact that they hold it and that no one else claims it.
    It was optional with plaintiffs to sue on the draft given for the object purchased, or-to ask for a rescission of the sale. Compensation can not be pleaded in a case like this. The sale was made for cash; the price should have been paid in cash. The accepting of the draft in the place of cash was merely an accommodation to defendant. It never could have been contemplated by the plaintiffs that it was a mere trap by which tho defendant was to secure the payment of a debt.
    APPEAL from the Third Judicial District Court, parish of St. Martin. Train, J.

      DeBlanc & Fournet, for plaintiffs and appellees.

      Felix Voorhies, for defendant and appellant.
   MoegaN, J.

Guilbeau Bros, sold to the defendant a certain piece of property. The price was $2025. The terms cash. Instead of cash, the defendant gave a draft drawn by himself, payable to the vendors, on A.Mouton, of New Orleans. Under the sale the vendee took possession of the property. The draft, although not payable to the order of the vendors, was indorsed by them to one Brown. It was presented by Brown to the payee, who refused to accept or pay it. It was then returned to the vendors, and was by them indorsed to DeBlanc & Beer, who again presented it to Mouton, who, acting under instructions from the drawer, refused payment. Boman, however, offered to take up the draft by compensating it with a debt due by the vendors to the vendee, which was refused. The draft was then returned to the vendors. The object of this suit is to rescind the sale, to recover back the property, and for damages. The defense is—

First — That at the time of the sale the vendors owed the vendee a larger sum than the price which he agreed to-pay for the property, and that the debt was therefore compensated.

Second — That the plaintiffs, who have made no cession of their property, can not object to the plea of compensation, because the property sold by them to defendant is the common pledge of their creditors, and that this would be giving undue preference to one of their creditors over the others.

Third — Because this objection, if receivable, must be made by the creditors, and that by the action styled in law actes Pauliana, or revoca-tory action, and not otherwise.

Fourth — Because the draft on Mouton was not protested.

Fifth — Because the draft was transferred by plaintiffs, first, to Brown, who returned it to plaintiffs, and who then gave it to DeBlanc & Beer.

Sixth — Because plaintiffs have failed to make a tender of the draft to the defendant before instituting suit, and because there is nothing to show that they are the holders of the draft.

Seventh — Because if the transfers by plaintiffs to the indorsees of the draft were made without consideration, they were made in view of defrauding the defendant by endeavoring to evade the law, which operated a compensation of their respective claims; and that if for a valuable consideration, the draft was used as a medium of circulation, and acquired the value of cash as commercial paper, and, therefore, the action should not be one to cancel the sale, but an action on the draft for the amount thereof secured by their vendor’s lien and privilege.

Eighth — Because, by promising to pay cash, when in reality he understood and meant to pay with' the plaintiffs’ indebtedness, he committed no breach of confidence amounting to fraud, subjecting him to damages.

Ninth — Finally, he avers that the unjust and uncalled for imputation of fraud fixed upon him by plaintiffs has injured him in his reputation for honesty and fair dealing, and that the protest of the draft, which •he did not owe, has injured his credit as a merchant, and that he has suffered damages in the sum of one thousand dollars, for which he asks judgment.

On the trial, it appears that Placide Guilbeau, one of the plaintiffs, had died since the institution of this suit, rt also appeared, from testimony adduced by the defendant, that I. Armas Guilbeau had been appointed administrator of his estate. Thereupon, counsel for plaintiff offered to make an appearance for the administrator, which the defendant objected to on the grounds that it came too late ; and because, the action being brought by Guilbeau Bros, as a commercial firm, and the partnership being dissolved by tbe death of one of its members, no one can represent the deceased in this action, unless specially appointed by the court of probates as administrator or liquidator of his share in the partnership. It will be observed that no question is raised as to the authority of the counsel to represent the administrator.

Under the facts as stated in the bill, the ruling of the district judge was correct. New parties may be made at any time pending the trial of a cause, provided the trial is not delayed or the issue changed. As to the right of the administrator of the deceased partner to join in this suit, it is, we think, undeniable. We may admit the premises of the defendant, that matters pertaining to a commercial partnership can only be administered upon and controlled by a receiver or a liquidator when the partnership is dissolved, although we express no opinion upon this point, as it is not necessary to the decision of this cause. But the matter which was before the court was not of a commercial character. It involved the title to real estate. Commercial parties may own real estate, but the real estate owned by them does not enter into their commercial assets. As regards that species of property they are joined owners. Now this is a suit relating to property in which the partners had a joined interest. In such a suit it was not only the right, but it was the duty, of the administrator of the partner who had died to make himself a party to the suit, in order that the interest of the partner'in the property should come under his administration.

Upon the merits, the numerous defenses of the defendant are not supportable.

First — That Guilbeau Bros, are the owners of the draft is evident from the fact that they hold it, and that no one else claims it.

Second — It was optional with them to sue on the draft, or to ask for a rescission of the sale.

■ Third — Compensation can not be pleaded in a case like this. The sale was made for cash. The price should have been paid in cash. The accepting of the draft in the stead of cash was merely an accommodation to the defendant. It never could have been contemplated by the plaintiffs that it was a mere trap by which the defendant yrcts to secure the payment of a debt. We look upon the draft as nothing more than if, when the act was signed, the defendant had asked the plaintiffs to walk to a neighbor’s house to get his money, and when he got there told that cash meant some old notes and accounts that existed against them. Such conduct is not permissible, and produces no effect.

Judgment affirmed.

On APPLICATION BOR a Rehearing.

There is error in the judgment pronounced by us in affirming the j udgment of the district court in so far as it allowed damages to the plaintiff.

This can be corrected, however, without a rehearing.

It is therefore ordered, adjudged, and decreed that our former judgment be amended ; and it is now ordered, adjudged, and decreed that the judgment of the district court, in so far as it gives damages to the plaintiff in the sum of three hundred dollars, be reversed, and that in all other respects the judgment of the district court be affirmed. Defendants to pay costs in the court below; that of the appeal to be borne by the plaintiff and appellee.

Rehearing refused.


author: Moegan, J.

text:
    No. 939.
    State of Louisiana vs. Jules Guidry.
    Defendant was entitled to have a copy of the venire served upon him, and this was done. All of the persons named thereon did not answer to the summons, but that was because they were either excused or could not be found. The law was complied with when the venire was served upon him.
    The judge a quo was right when excusing several jurors who could not understand the English langua '0. This discretionary power he had under the first section of act'No. 04 of the acts of 1873.
    On the trial of the exceptions filed by defendant, he offered to prove that, in drawing the venire, ballots were placed in the box containing the names of all persons who were on the registration list, including those who had sorwed at previous terms of the court within the last three years next'preceding the present term. Admitting the fact to bo as stated, tho defendant suffered no wrong thereby, for he does not complain that they are incompetent jurors, what he urges is no cbjection to them as jurors. They might have caused themselves to be discharged. but the cause of discharge was personal to themselves.
    Tho court did not err in allowing Burleson to be sworn as a juror. He swore, it is true, on his voir dire that he had “ conversed about the matter with some of the. eye-witnesses to the killing charged against the accused in this case, and that ho had formed an opinion as to the guilt or innoconce of the accused;” but ho also said that “ his opinion was merely imaginary and was not a fixed opinion, but would yield to the evidence, and that he felt satisfied he could try the ease fairly and impartially according to tho evidence.” He was a good juror.
    The same may be said with regard to the juror Collins. He had expressed an opinion, but he said that opinion was founded upon hearsay, and that his opinion would yield to the evidence.
    There is nothing iii the exception that the talesmen had not been summoned and called to be sworn until after tho regular jury had been finally discharged. Tho talesmen could only have been summoned after the panel was exhausted, and there is no good reason why the judge, after the panel had been exhausted, should not discharge tho jury if he had no other cases for them to try without waiting until the talesmen had been summoned and sworn.
    APPEAL from the Eighth Judicial District Cóurt, parish of Calca-sieu. Morgan, J. Criminal case.

      George W ■Hudspeth, district attorney, for plaintiff and appellee.

      F. A. Gallaugher and Lewis Lé-véque, for defendant and appellant.
   Moegan, J.

The accused, indicted for murder, and found guilty as ■charged in the indictment, appeals from the judgment of the court, which inflicts upon him the extreme penalty of the law.

When the case was called in the district court, the defendant,objected to going to trial — ■

First — Because the list of jurors served upon him is incorrect, and tends rather to mislead than to guide him, as it contains the names of thirty-seven jurors, seven of whom had never been summoned and could not expect to be present, and three of whom had been excused by the ■court.

Second — Because five jurors were excused and discharged by the court on the ground that they could not understand English, which, he says, was no legal objection to their competency; that they were excused without his knowledge or consent, and without allowing him an op por-tunity to examine them, and that he has good reason to believe that they would have made competent jurors, and that he did not believe that he could secure a fair and impartial jury from the remaining jurors, and that he will be thus deprived of his rights to be tried by a jury summoned from the body of the parish, as talesmen will be summoned from the vicinity of the court-house.

The statement of facts shows that seven of the jurors whose names were on the list furnished to the defendant were never summoned, as •they could not be found in the parish; that four of the jurors were excused because they did not understand English either when read or .spoken, and that they were excused without the knowledge of the defendant; that one of the jurors was excused after a copy of the venire had been served on the defendant, the juror claiming exemption because he had served within twelve months preceding the last term of court; that of the seven absent jurors domiciliary service had been made on two of them; but that of these two one owns no residence in the parish, and works wherever he can find employment, and that when the subpoena was left for him he was out of the parish.

These objections are not good. 'As to the venire, he was entitled to a copy of it, and a copy was furnished him. All of the persons named thereon did not answer to the summons, but that was because they were •either excused or could not be found. But the law was complied with when the venire was served upon him.

As to the course of the judge in excusing several of the jurors because they could neither read nor understand the English language, he was right. No man can be said to be a competent juror to sit in judgment upon a man whose life is at stake who can neither read nor understand the language in which the law is written which is to decide his fate, or the pleadings under which the crime is laid to his door. The juror might as well be deaf and dumb. Besides, the first section of the act No. of 1873 gives to the judge this discretion.

On the trial of the foregoing exception the defendant offered to prove that, in drawing the venire, ballots were placed in the box containing the names of all persons who were upon the registration list, including those who had served at previous terms of the court within the last three years next preceding the present term. Admitting the fact to be as stated, the defendant suffered no wrong thereby, for he does not complain that they are incompetent jurors. What he urges is no objection to them as jurors. They might have caused themselves to be discharged, but the cause of discharge was personal to themselves.

The court did not err in refusing to allow one of the jurors of the regular panel to sit on the trial of this case, because he could not read, or write, or understand the English language. This we have before stated with regard to other jurors. And whether he could or could not understand the language was a question of fact which it was for the district judge to determine.

Neither did he err in allowing Burleson to be sworn as a juror. He swore, it is true, on his voir dire that he had “ conversed about the matter with some of the eye-witnesses to the killing charged against the accused in this case, and that he had formed an opinion as to the guilt or innocence of the accused.” But he also said that “ his opinion was merely imaginary, and was not a fixed opinion,- but would yield to the' evidence, and that he felt satisfied he could try the case fairly and impartially according to the evidence.” He was a good juror.

The same may be said with regard to the juror Collins. He had expressed an opinion, but he said that this opinion was founded upon hearsay, and that his opinion would yield to the evidence.

The regular panel having been exhausted, the judge ordered the sheriff to summon forty-five talesmen from different portions of the parish, and then discharged the petit jury for the term. The defendant objected to being tried by the talesmen thus summoned, on the ground that the talesmen had not been summoned and called to be sworn until after the regular jury had been finally discharged.

There is nothing in this exception. The talesmen could only have been summoned after the panel was exhausted, and we see no good reason why the judge, after the panel had been exhausted, should not discharge the jury if he had no other cases for them to try, without waiting until the talesmen had been summoned and sworn.

The defendant moved for a new trial “ for the reason that the verdict is contrary to the law and the evidence, and because the verdict was occasioned by the great prejudice existing against him in the community, and of which he was ignorant, before going to trial.”

There is nothing in this application which shows that the district judge erred in his refusal to grant the new trial.

One by one we have examined and carefully considered the objections which the defendant has made to the trial the'result of which is to bring him to a sad end. One by one we have been forced to overrule them, and we see no good grounds for interfering in his behalf, averting from him the doom which a jury of his peers have said he has, by violating the laws of God and man, brought upon himself.

Judgment affirmed.


author: MoR&aít, J.

text:
    No. 963.
    Alphonse Tertrou vs. J. B. Comeau, Sheriff, et al.
    The motion to dismiss on the ground that the amount in controversy does not exceed five hundred dollars can not prevail. It is tho value oí tho property to bo sold which is the test of the amount in dispute.
    The plea that the order of sale obtained by the administrator is mill, beeauso, if the estate is solvent, notice of an application to sell must be given to the heirs, and reasonable notice must be given to the interested parties; and, if insolvent, tho administrator, being the trustee of tho creditors, his first duty is to them, and all proceedings for the sale of the property must be carried on contradictorily with them, is not well founded.
    It was tho duty of tho administrator to have the property sold if the estate was in debt, and that fact is shown by plaintiff, who claims to be a creditor thereof for a large sum. Tho orders of sale wore necessarily ex parte, and no injury can befall the plaintiff in consequence of ii. This court does not see in what other way ho could be paid.
    APPEAL from the Parish Court, parish of St. Martm. Fournet, J.

      L. J. Gary, for plaintiff and appellant.

      F. Voorhies cl; M. Voorhies, for defendants and appellees.
   MoR&aít, J.

The administrator of the estate of Charles Durand, Jr., obtained an order for the sale of real estate belonging to the succession.

Plaintiff enjoins the sale upon the grounds that ho is the holder of notes secured by mortgage on the property, and that it is advertised to be sold under his mortgage; that the order of sale obtained by the administrator is null, because, if the estate is solvent, notice of an application to sell must be given to the heirs, and reasonable notice must be given to the interested parties; because, if the succession is insolvent, the-administrator being the trustee of the creditors, his first duty is to them, and all proceedings for the sale of the property must be carried on contradictorily with them, and beeause the order which forms the basis of the advertisement and of the proposed sale is ex parte, and is contrary to the will of the creditors, and would therefore be null.

The injunction was dissolved with damages, and the plaintiff appeals.

Appellees move to dismiss the appeal on the ground that the amount in controversy does not exceed five hundred dollars.

It is the value ol the property to be sold which is the test of the amount in dispute. The value of the property largely exceeds our appellate jurisdiction. The motion is denied.

On the merits, it is evident that the injunction was properly dissolved. It was the duty of the administrator to have it sold if the estate was in debt, and that fact is shown by plaintiff, who claims to be a creditor thereof in a sum exceeding sixteen thousand dollars.

The orders of sale were necessarily ex parte, and we see no injury which can befall the plaintiff by the sale of the property. Indeed, we do not see howr else he could be paid.

Defendants ask for damages ,to be awarded by us. But as damages were awarded below we will only affirm the judgment.

Judgment affirmed.

Rehearing refused.


author: Ludeling, C. J. MosgaN, J.

text:
    No. 831.
    Richard T. Eastin vs. Alfred Dupèrier.
    On a settlement between Duperier and bis ward, Ratier, Duperier, being indebted to Ratier, assumed, in part payment ol this indebtedness, to pay a note drawn by his ward and on which ho had gone security.
    Duperier and Ratier were sued on this pote. Pending this suit, Ratier sold whatever claim he might have a ;ainst Duperier to plaintiff. Judgment was rendered iá'favor of Duperier and Ratier on the note sued on. Plaintiff, as the transferee of Ratier, sues Duperier for the amount of this note.
    The settlement between Ratier and Duperier being final in their relations of tutor and ward, Ratier, when he sold his rights against Duperier to plaintiff, sold nothing.
    Because Duperier was not condemned to pay the note which he agreed to pay is no reason why Ratier, or his alleged transferee, should claim payment of the sum which it represented, any more than if the holder of the note had given it to him, or if the payment thereof had been barred by prescription.
    APPEAL from the Third. Judicial District Court, parish of Iberia. Train, J.

      Gary & Fournet, for plaintiff and appellant.

      J. A. Breaux and A. C. Dumartrait, for defendant and appellee.
   Ludeling, C. J.

The plaintiff alleges that he purchased from one Ratier, the former ward of the defendant, whatever balance might be due by the defendant to said ward. He alleges, further, that in the rendition of his account to his ward the defendant acknowledged an indebtedness to him, which was satisfied by money, by notes which said defendant held against his said ward, and by notes on which he was bound as security for his said ward; that one of these last-named notes, for $833 33, was declared by a court of competent jurisdiction to be without consideration, and that for the amount of said notes the said defendant is still indebted to the said ward, or to petitioner, his vendee.

There was judgment of nonsuit, and plaintiff has appealed.

It appears from the record that subsequent to the judgment in favor of Eatier and Duperier on the note for $833 33, Eatier sued his former ■tutor for matters connected with his tutorship, and there was judgment in reconvention against Eatier for $120. It may be that by not claiming in that suit the sum now claimed in this suit, he is estopped from suing on it afterward. The pleadings have been negligently made, and we think the ends of justice will be subserved by affirming the judgment of nonsuit.

It is therefore ordered that the judgment appealed from bo affirmed with costs.

Orr Eehearing.

MosgaN, J.

Duperier settled bis account as tutor with his ward, Eatier. The parties were competent to settle at the time of the adjustment. Duperier was indebted to his ward. In part payment of this indebtedness he assumed to pay a note drawn by his ward, to secure which Duperier was surety. Duperier and Eatier were sued on this note. Pending tne suit, Eatier sold whatever cl,aim he might have against Du-perier to the plaintiff. Judgment was rendered in favor of Duperier and Eatier on the note sued on. Eastin, as the transferee of Eatier, sues Duperier for the amount of this note.

• The settlement between Duperier and Eatier was a final settlement of their accounts. These settled, Eatier had no claim against him. Eatier had no rights against him growing out of their relation of tutor and ward. When, therefore, Eatier sold to Eastin his rights against Dupe-rier, he sold him nothing. The settlement between Eatier and Duperier was unconditional and ‘final. Because he was not condemned to pay the note which he agreed to pay is no reason why Eatier could claim payment of the sum which it represented, any more than if the holder of the note had given it to him, or if the payment thereof had been barred by prescription. The contract was conclusive between Eatier and Duperier. It is conclusive against those who represent either of them. Eatier certainly could not sue. Neither, therefore, can Eastin.

It is therefore ordered, adjudged, and decreed that the former judgment rendered by us be set aside. And it is now ordered, adjudged,' and decreed that the judgment of the district court be avoided, annulled, and reversed, and that there be judgment in favor of the defendant;with costs in both courts.


author: Taliaeerro, J.

text:
    No. 906.
    State of Louisiana vs. J. Walker et al.
    A license-tax is demanded of the defendant, Walker, under act No. 14 of tlio acts of 1872. The third clause of the first section of that act reauires a liconse-tax of fifty dollars to he paid to the State by “ each keeper of a wareh« use, cotton or lumber yard, or other place of public storage for hire,”
    It is shown by the evidence that the defendant has tho usual appendage of all sawmills doing any considerable amount of business, a scope of ground commonly called a lumber-yard, upon which the lumber sawed by the mill is stacked or piled in lots or parcels for sale, or for delivery of such parcels, whero they have been sawed to fill bills previously furnished by customers. But it is also shown that the defendant does not keep lumber on storage for hire.
    The construction placed by plaintiff upon the third clause of tho first section of the act referred to is inadmissible. The expressions employed in tho connection in which they aro placed relatively to each other plainly indicate that the warehouse, cotton-yard, or lumber-yard to be subject to tho license-tax must bo “ a place of public storage for hire.”
    APPEAL from the Parish Court, parish of Iberia. Fontelieu, J.

      B. Z. Belden, District Attorney, for plaintiff and appellee.

      J. A. Breaux, for defendant and appellant.'
   Taliaeerro, J.

In this case the district attorney of tho district, upon the relation of the tax-collector of the parish, proceeded by injunction against the defendants on the alleged ground that they failed and refused to pay when demanded from them the flfty-dollar-license-tax due the State and imposed by law upon the keepers of lumber-yards, tho defendants being owners of a saw-mill and carrying on a large business in the lumber trade.

The defendants excepted to the right of the plaintiffs to seize and advertise for sale their property, which it seems was done to enforce payment of the license demanded from them. They answered at considerable length, averring the illegality of the proceedings taken against them, denying that they are liable for the license-tax claimed from them, and allege damages suffered by them from the seizure of their property, the suspension of their business, and the expense incurred in attorney’s fees to defend them. They pray a dissolution of the injunction, and for one hundred and seventy dollars damages, to be decreed in solido against the parties — the district attorney, tax-collector, and sheriff — officially and personally.

The judgment of the court below was rendered in favor of tho State for fifty dollars license-tax against the defendant "Walker, and costs of suit, with privilege on the property, and twenty per cent special damages and five per cent attorney’s fees. The suit was dismissed at the costs of the State as to the other defendant.

The defendant, Walker, has appealed.

We think the judgment erroneous. The license-tax is demanded of the defendant under the act (No. 14, acts of 1872, page 49) entitled an act to provide a revenue and grant and collect licenses, etc., approved fifth of March, 1872. The third clause of the first section of that act requires a license-tax of fifty dollars to be paid to the State by “ each keeper of a warehouse, cotton or lumber yard, or other place of public storage for hire.”

It is shown by the evidence that the defendant has the usual appendage of all saw-mills doing any considerable amount of business, a scope of ground usually called a lumber-yard, upon which the lumber sawed on the mill is stacked or piled in lots or parcels for sale, or for delivery of such parcels where they have been sawed to fill bills previously furnished by customers. But it is also shown that the defendant does not keep lumber on storage for hire. Nobody deposits in his lumber-yard lumber of their own to be kept on storage by him for hire or compensation. The construction placed by plaintiff upon the terms used in the third clause of the first section of the act are inadmissible. The expressions employed in the connection in which they are placed relatively to each other plainly indicate that the warehouse, cotton yard, or lumberyard, to be subject to the license-tax must “ be a place of public storage for hire.”

It is therefore ordered that the judgment appealed from be annulled and reversed, that the injunction be dissolved, that there be judgment in favor of defendant, the plaintiff paying costs in both courts.


author: Wyly, J.

text:
    No. 928.
    Succession of Pierre Cabrol. Opposition of Marie Nezat and Husband to the Tableau of Debts and Distribution.
    •On tlie trial of this remanded ease, the parish judge called in an attorney at law to try it, he being put down as one of tho creditors whose claim was contested in said opposition. The judge erred. Tho trial of the ease should have been referred to the district judge, whose duty it is to try all eases in which the parish judge is personally interested.
    APPEAL from tho Parish Court, parish of Yermilion. Kibbe, J.
    F Ii. King, for Labit, dative testamentary executor, and C. H. Bemick, ap-■pellees.

      Monton & Debaillon, for opponents and appellants.
   Wyly, J.

This case was before this court in June, 1874, and it was remanded for trial of the issues raised in the supplemental petition of opposition to the account filed on ninth August, 1873.

At the trial on the remandment the parish judge called in an attorney at law to try the case, he being put down as one of the creditors whose ■claim was contested in said opposition. 'The judge erred. The trial of the case should have been referred to the district judge, whose duty it is-to try all cases in which the parish judge is personally interested. Constitution, article ninety.

It is therefore ordered that the judgment herein of an attorney at law acting as judge be annulled, and the cause remanded to be tried according to law, appellee paying costs of appeal.


author: Ludeling, C. J.

text:
    No. 936.
    Succession of Paulin Fontelieu. Opposition to Homologation of Tableau.
    It is unimportant to tho opponents whether certain privileged debts be paid or not; if they exist they are properly on tho tableau.
    Tho administrator is only entitled to his commissions on the amount collected and to be distributed.
    A judicial sale can not bo annulled in a collateral proceeding in which the vendee is not a party.
    The vendee in this instance is protected by the order of the court under which the sale was mado, even if the exparte order rescinding tho first order could be construed to forbid the sale absolutely, because the vendee had no knowledge of the-fact. But the second order was conditional, and the administrator complied, with the condition, so that, even if it had boon rendered contradictorily with the administrator and valid, it would not have had the effect of annulling the first order.
    It is now well settled that a sale of succession property to pay debts may be validly made for less than two thirds of the appraisement.
    The claim of the widow and children of the deceased, who were- and are in necessitous circumstances, is correctly placed on the tableau as a privileged one. They are entitled to the one thousand dollars allowed, with a privilege according to law, less tho value of tho furniture received by her and such sums as have been collected by her'while acting as administratrix.
    APPEAL from the Parish Court, parish of Yermilion. Kibbe, J.

      Joseph A. Breaux, for administrator, appellant.

      Frank JR. King, for-opponents and appellees.
   Ludeling, C. J.

The administrator filed a provisional account and tableau of distribution, which was opposed by Herrmann & Yignes and others, claiming to be creditors of the estate, on the following grounds: That the account represents that certain privilege debts have been paid, whereas they are unpaid. It is unimportant to the opponents whether those debts be paid or not; if they exist, they are properly on the tableau. They oppose the commissions of the administrator, on the ground that the administrator is only allowed a commission on the property administered, bad debts deducted, and that it is impossible to know now what his commissions are, and the demand is premature. C. C., article 1200. Tho administrator was only entitled to his commissions on tho amount collected and to be distributed. C. C. 1200.

They nest oppose the account because the administrator has failed to account for moneys collected by nim, but the opposition does not designate the amounts or from whom collected. This is too vague to be noticed. They charged that the administrator should account for moneys collected by the natural tutrix. It is probable he will when he collects it; it is not alleged that he has collected any thing from the natural tutrix.

The opponents further oppose the account, and insist that the amount charged against himself as the proceeds of the sale of certain real property should be stricken from the account, because—

First — The sale was illegal and was made without authority.

Second — The order of the court to sue had been rescinded before the sale.

Third — The sale was not made by the sheriff, but by the administrator, without any authority or commission.

Fourth — Because it was not advertised according to law and did not sell for two thirds of its appraisement.

Fifth — If the sale be maintained the estate will be insolvent.

Sixth — The sale was made in opposition of opponents’ protests, and in violation of the decree of the probate court.

This is an attempt to annul a judicial sale in a collateral proceeding in which the vendee is not a party.

It appears that the administrator was appointed and qualified according to law. He obtained an order from the probate court to sell property to pay debts. This order was directed to sheriff or administrator, and the property advertised for sale. Thereupon the opponents represented to the parish judge that the bond was not a legal bond, and on the ex parte application of said creditors the judge made an ex parte order rescinding the order to sell in the following words: “ The court rescinded the orders granting the sale until the administrator furnish a sufficient bond, as required by law.” This order was served on the administrator on the twenty-first of October, 1875, who furnished another bond as required. The sale was made, and the property was adjudicated to the highest bidder, who paid the price.

This vendee is protected by the order of the court under which the sale was made, even if the ex parte order rescinding the first order could be construed to forbid the sale absolutely, because the vendee had no knowledge of the fact. 11 La. 156; 2 An. 466; 21 An. 425, 514; 25 An. 630. But we think the second order was conditional, and the administrator complied with the condition, so that oven if it had been rendered contradictorily with the administrator and valid, it would not have had the effect of annulling the first order.

It is now well settled that a sale of succession property to pay debts may be validly made for less than two thirds of the appraisement. 10 R. 398; 9. R. 508; 13 La. 431; 5 An. 437; 27 An., not reported.

The administrator filed an amended account and tableau, on which ho placed the claim of the widow and children of the deceased, who were and are in necessitous circumstances, as a privileged claim. This claim is opposed by the creditors.

The evidence shows that they are entitled to the one thousand dollars, with a privilege, according to law, less the value of the furniture received by her and such sums as have been collected by her while acting as ad-ministratrix. The evidence in this record is not sufficiently definite to enable us to fix the amount collected or the value of the furniture.

The claims of the opposing creditors appear to be established.

It is therefore ordered and adjudged that the judgment of the lower court be reversed. It is further ordered that the opposition to the account and tableau and amended account and tableau be rejected in regard to the following items, to wit: The proceeds of the sale of the land charged against the administrator, the privileged claim of the widow and children, less the value of the furniture and the sums collected by the widow from the assets of the succession, and to so much of the administrator’s commissions as exceeds two and a half per cent on the amount to be distributed, and that in other respects it be confirmed and homologated. It is further ordered that the opponents pay costs of this appeal.

Rehearing refused.


text:
    No. 830.
    F. E. Dartez vs. F. D. Légé, Administrator, et al.
    This court will notice that the amount in dispute exceeds five hundred dollars and that the suit is a petitory action. Therefore the parish court was without jurisdiction r alione materia;, and the suit must be dismissed.
    APPEAL from the Parish Court, parish of Vermilion. Kibbe, I.

      F. B. King, for plaintiff and appellant.

      B. P. O’Bryan, for defendant and appellee.
   Ludeling, C. J.

The plaintiff claims to be the owner of property, real and personal, exceeding in value five hundred dollars, which was advertised for sale, under an order of the probate court, as the property of the succession of Julien Dartez, and he enjoined the sale thereof. The1, injunction was dissolved, and the plaintiff has appealed. In this court the appellee has alleged that the matter in controversy is ordinary and not probate in its character, and therefore that no appeal could be taken from the parish to the Supreme Court. We will notice that the amount in dispute exceeds five hundred dollars, and that the suit is a petitory action, therefore the parish court was without jurisdiction ratione mate-rice, and the suit must-be dismissed.

It is therefore ordered that the judgment of the lower court be declared null, and that the suit be dismissed at the costs of the plaintiff.


text:
    No. 967.
    Henry Clay Ray vs. Egbert O. Hayes, Sheriff, et al.
    Plaintiff has enjoined the sale of certain property, which he alleges is exempt from seizure and sale by law. The defendant joined issue without exception to the jurisdiction of the court, and said court dissolved the injunction. The motion to dismiss the appeal for want of jurisdiction in this court ratione material can not prevail.
    If the district court had jurisdiction, this court has also, for the jurisdiction of district courts is in matters wher° the value in dispute exceeds five hundred dollars; and if this court is without jurisdiction, so was the lower court, and its judgment would be an absolute nullity.
    But there is no evidence that the property is not worth over five hundred dollars. On the contrary, it would seem that the property seized is worth more than five hundred dollars.
    The plaintiff was a farmer, having a wife and children, and the corn and fodder seized were necessary for the current year. Because he could not go on farming on his own r-esponsibility during the year following the seizure, in consequence of said seizure, is not a reason why he should be regarded as not a farmer. He was a farmer in 1874, and made the corn and fodder seized in the fall of that year, and his occupation at the time of the seizure is the test to determine if he be entitled to the exemption.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. T. H, Lewis, Acting Judge.

      Martel & Hudspeth and Bayley, for plaintiff and appellant.

      Henry L. Garland, for defendants and ap-pellees.
   Ludeling, C. J.

Plaintiff alleging that he is a farmer, having a wife and children dependent upon' him for a support, and that his wife does not own property worth one thousand dollars, enjoined the sale of certain property, which he alleges is exempt from seizure and sale by law. The property seized is a mule, three hundred bushels of corn, and three thousand bundles of fodder; the value of this property is neither alleged nor proved. The defendant joined issue without excepting to the jurisdiction of the court, and the court a qua dissolved the injunction with damages.

In this court a motion to dismiss the appeal has been made by the defendant for want of jurisdiction of this court ratione materice. If the district court harl jurisdiction this court has also, for the jurisdiction of district courts is in matters' where the value in dispute exceeds five hundred dollars; and if this court is without jurisdiction, so was the lower court, and its judgment would be an absolute nullity. But there is no evidence that the property is not worth over five hundred dollars. On the contrary, it would seem that the property seized is worth more than five hundred dollars. The motion to dismiss is overruled.

On the merits, the evidence proves that the plaintiff was a farmer, having a wife and children dependent upon him, and the corn and fodder seized was necessary for the current year. The articles seized are exempt under the a,ct of 1865. C. P. 645.

Because he could not farm on his own responsibility during the year following the seizure, in consequence of said seizure, is not a reason why he should be regarded as not a farmer. He was a farmer in 1874, and made the corn and fodder seized in the fall of that year, and his occupation at the time of the seizure is the test to determine if he be entitled to the exemption.

It is therefore ordered that the judgment of the lower court be reversed, and that there be judgment perpetuating the injunction, with costs in both courts.


author: Morgan, J.

text:
    No. 892.
    Lalanne Brothers vs. Kinchen W. McKinney.
    Where, between certain laborers and their employer, it is agreed to give them in lieu ol wages one half of the proceeds of the cotton crop and other produce, there was plainly no partnership in this.
    The property sequestered and attached was released upon bond. Proceedings were taken against the surety. The district judge was of opinion that the surety was bound to the amount of the property released. In this there was error. The surety was bound for the amount of the judgment to the extent of his bond. Now, the judgment was for $687 30. Therefore the surety should have been condemned to pay, not the value of the property released, but the amount of tho judgment. Plaintiffs entered a remittitur for the difference between the judgment and the amount really due. But this was done after the appeal was applied for and the bond given; it came too late. The result is that the judgment must be amended.
    On the trial below certain exceptions were taken to the ruling of tho judge, who allowed the plaintiffs to introduce in evidence the bond sued upon. The judge a quo correctly overruled these exceptions on the grounds that the bond being taken in a judicial proceeding, referred to in the body of the bond, is binding on the parties as they intended it; that, as the bond had been in the possession of the officers of the law since its execution, tho presumption is, that it was signed by tho parties with the erasures and interlineations previously made, and that a bond taken in a judicial proceeding is not required to be stamped.
    APPEAL from the Eighth District Court, parish of St. Landry. Henry L. Garland, Acting Judge.

      Joseph M. Moore & Morgan, for plaintiffs and appellees.

      Martel & Hudspeth, for defendant and appellant.
   Morgan, J.

Plaintiffs instituted suit against the defendants, proceeding first by sequestration and secondly by attachment. The property sequestered and attached was released upon bond, upon which T. 0. Anderson and Elbert Gantt were sureties. Judgment was rendered in favor of the plaintiffs. On appeal the judgment of the district court was affirmed. Execution issued, which was returned nulla hona, and proceedings were taken against the sureties. Gantt is alone before us, and from a judgment against him he has appealed.

In his reasons for judgment the district judge says:

“ The sureties, in their defense, claim that they are not bound because the property replevined did not belong, to their principal, but to certain freedmen who work upon the McKinney plantation.
“ Admitting that they could successfully relieve themselves by making proof of these facts, this proof is wanting. The testimony of the laborers shows that the contract between them and McKinney was that they were hirelings, to be paid by the half of the proceeds of the cotton and by receiving the half of the other produce. This contract was exactly like the one between the Cowans and their laborers, reported in 22 An. p. 438, where it was said: ‘ The plantation in question was owned by the defendants in 1867 and cultivated by them in cotton. The defendants employed certain laborers, and agreed to give them, in lieu of wages, one third of the gross products of the cotton. There was plainly no partnership in this. The plantation was the Cowans’, the cotton as it grew was theirs; the supplies were furnished to them for the crop; and every fibre of the cotton as it matured was affected by the privilege.’ ”

The district judge was of the opinion that the surety was bound to the amount of the property released, which was $727 90.

In this there was error. The surety was bound for the amount of the judgment to the extent of his bond. Now, the judgment-was for $687 30. Therefore the surety should have been condemned to pay, not the value of the property released, but the amount of the judgment.

Plaintiff entered a remittitur on the twelfth of March, 1875, for the difference between the judgment and the amount really duo. But this was done after the appeal was applied for and the bond given. It came too late. 25 An. p. 507. The result is that the judgment must be amended by us.

No objection was taken to the form of this proceeding, but on the trial the defendants excepted to the ruling of the judge, which allowed the plaintiffs to introduce in evidence the bond sued on. The objection rested on the grounds:

First — Because the bond was defective in form, being really a forthcoming or release bond in sequestration, while plaintiffs in their petition declared it to be a forthcoming or release bond in attachment.

Second — Because of the mutilated condition of the bond and the many erasures and interlineations therein.

Third — Because the bond is not stamped with the United States internal revenue stamps as required by the laws of the United States.

The judge overruled the objections for the reasons: “That the bond being taken in a judicial proceeding, referred to in the body of the bond, is binding on the parties as they intended it; that as the bond had been in the possession of the officers of the law since its execution, the presumption is that it was signed by the parties with the erasures and in-terlineations previously made, and that a bond taken in a judicial proceeding is not required to be stamped.” These reasons justify his rulings.

It is therefore ordered, adjudged] and decreed that the judgment of the district court be amended by reducing the same from $727 90 to $687 30, with interest as therein stated on the latter amount, and that as thus amended it be affirmed, defendant to pay the costs in the district court, those of the appeal to be paid by the plaintiffs.


author: Wvly, J.

text:
    No. 938.
    Baptistine Derbes et al. vs. Duplessis Romero et al.
    This is a petitory action against the defendants, who are alleged to he in possession as trespassers of a tract of land in the parish of Iberia, measuring more than thirty-seven arpents in front by forty in depth. Defendants except on several grounds to the action, the most important of which being that they each own distinct lots of the land in controversy, and therefore can not be sued collectively, and also for the additional reason that the value of the lots owned separately was less than five hundred dollars. The judge a quo erred in declining jurisdiction ratione material. The land claimed by plaintiffs is worth more than five hundred dollars. The value of the property thus claimed determines the jurisdiction of the court. This is a auestion of title. Kor the settlement of this question defendants are interested alike, regardless of the extont of their respective , claims to the property in dispute. The case is remanded.
    APPEAL from the Third Judicial District Court, parish of Iberia. Train, J.

      M. Voorhies & F. Voorhies, for plaintiffs and appellants.

      FeBlanc & Fournet, for defendants and appellees.
   Wvly, J.

Plaintiffs, the heirs of Jean Baptiste Derbes, bring this peti-tory action against the defendants, who, they allege, are in possession as trespassers of a tract of land in the parish of Iberia, measuring thirty-seven and two thirds arpents front by a depth of forty arpents, which the ancestors of plaintiffs purchased in 1836 from Miss Estelle Eontenette, the deed being duly recorded.

Defendants excepted to the suit on several grounds, the most important being that they each own separate and distinct lots of the land in controversy, and can not be sued collectively.

The court maintained this exception; and for the additional reason that the value of the lots, separately, was less than ñve hundred dollars, the judge concluded the court was withou jurisdiction ratione materice.

In support of their pretensions that they are owners of separate lots of this land, the defendants adduced at the trial of the exception a deed purporting to he made by an attorney in fact of Estelle Eontenette to them on the fifteenth of October, 1870; but this deed does not appear to have been signed by the agent of the vendor, nor is there any evidence of the agency. But, whether it was signed or not, we think the court erred in dismissing the petitory action of plaintiffs for the recovery of the tract of land worth over five hundred dollars which their ancestor acquired from Estelle Eontenette in 1836. The value of the property they claim determines the jurisdiction of the court. Defendants, if they are owners of separate lots acquired from Miss Estelle Eontenette in 1870, occupy no better position than their vendor. The primary question is, did their vendor in 1870 have any title whatever to the tract of land which she in 1836 sold to the ancestor of plaintiffs ? Eor the settlement of this question defendants are interested alike, regardless of the extent of their respective claims to the property in dispute. 2 Howard, 643 and 644. The objection that Mrs. Oscar Eazende, one of the heirs, was not authorized by her husband, is not well founded. The objection that the administratrix of the succession of Derbes was not made party, is likewise of no avail. She is not a necessary party.

It is therefore ordered that the judgment herein be annulled, and that the exceptions of defendants be overruled and the case remanded for trial on the merits, appellees paying costs of appeal.


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    No. 940.
    State ex rel. T. L. Winder, District Attorney, vs. Mayer Cahen et al.
    Mayor Gallon was appointed to tho office of tax-collector, parish of Assumption, his commission being dated tho fifth of March, 1875. Drury was appointed by tho samo authority to the samo office in tho place of Mayer Cahen, and his eommis • sion bears dato March 23. 1870. The Governor having the power to remove for cause, the exorcise of the power rests within his sound discretion, over which tho courts have no control. This is not now an open Question.
    The objection of Cahen to the reception in evidence of the bond of Drury on tho ground that there is no evidence that the sureties had, at tho time of signing, sworn that they were worth enough to respond for the amount for which, they obligated themselves, was not well founded. The presumption omnia rite acta would apply if it were a matter in which ho had an interest.
    As to the objection that the sureties did not reside in the parish, it was properly overruled. A statute of the State expressly permits a person residing in a different parish from that in which the officer is to exercise his functions, to bo surety on his official bond. There is no conflict between this law and article 3012 of the Revised Civil Code.
    APPEAL from the Eifteenth Judicial District Court, parish of Assumption. Beattie, J. Jury trial.

      Henry O. Dibble, Assistant Attorney General, for relator and appellee.

      Leblanc & Guión, for Mayor Cahen, defendant and appellant.
   Ludeling, C. J.

This is an action under the intrusion act against both defendants, to test their rights to the office of tax-collector of the parish of Assumption. See R. S., section 1158.

The facts show that Mayer Cahen was appointed to the office by the Governor. His commission is dated fifth of March, 1875. Drury was appointed in the place of Cahen, and his commission is dated twenty-third March, 1876. The Governor having the power to remove for cause, the exercise of the power rests within his sound discretion, over which the courts have no control. This is not now an open question. 25 An. 119, 396; 26 An. 537.

On the trial Cahen objected to the reception of the bond of Drury in evidence, on the grounds that there was no evidence that the sureties had, at the time of signing, sworn that they were worth enough to respond for the amount for which they obligated themselves; and that said sureties did not reside in the parish of Assumption. These objections were property overruled. The presumption omnia rite esse acta would apply to the first objection, if it were a matter in which he had an interest, and the statute of the State expressly permitted a person residing in a different parish from that in which the officer is to exercise his functions, to be surety on his official bond. R. S. section 351. Nor is there any conflict between this law and article 3042 of the Revised Civil Code. The charges asked for from the judge were properly refused. ' .

It is therefore ordered that the judgment of the lower court bo affirmed with costs of appeal.


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    No. 917.
    Celestine Delhomme, Wife, et al., vs. C. C. Duson, Sheriff, et al.
    Plaintiff can assert no greater rights than Alexander Stelly, under whom she claims, and who sold a small tract of land to Stanville Projean for one thousand and fifty dollars, which amount said Prejean hound himself to pay to Bienvenu Stelly in discharge of a certain mortgage hearing on said land for $906 20. Bion-venu Stolly foreclosed, via execu&iua.tho mortgage to secure this debt of one thousand and fifty dollars. Plaintiff, as transferee of Alexander Stolly, brought this suit by third opposition, claiming the proceeds of the sale of the mortgaged property, on the ground that the mortgage debt of $906 20, in settlement of which Bienvenu Stelly acquired the claim in question was for Confederate treasury-notes ; wherefore plaintiff alleges that the claim of one thousand and fifty dol- - lars sought to be enforced by Bienvenu Stelly belongs to her as transferee of , Alexander Stolly, who sold the land to Prejean.

      The oourt a qua erred in maintaining this opposition. Bionvonu Stelly is the owner ot the claim oí one thousand and flity dollars sought to be enforced. Land was the consideration thereof, not Confederate notes. Alexander Stelly, under whom plaintiff claims, could notreeovor from Bienvenu Stelly the claim against Prejean for one thousand and fifty dollars, which he gave in settlement of his own debt of $906 20, secured by mortgage, admitting this to have been for Confederate notes. It was an executed contract, and it can not bo annulled on account of Confederate money consideration. The policy of the law is to allow neither party to recover on an immoral contract.
    APPEAL from tlie Judicial District Court, parish of St. Landry. Morgan, J.

      John N. Ogden and F. Perrodin, for plaintiffs and appel-lees.

      Henry L: Garland, for defendants and appellants.
   Wyly, J.

On thirtieth September, 1866, Alexander Stelly sold a small tract of land to Stanville Prejean for $1050, “which amount (the deed recites) said purchaser promises and binds himself to pay to Bienvenu Stelly in one and two years from this day, with eight per cent per annum interest from the present date, in payment of a certain mortgage hearing on said land for the sum of nine hundred and six dollars and twenty cents, bearing eight per cent interest from twenty-sixth July, 1865.”

Bienvenu Stelly foreclosed, via executiva, the mortgage given to secure this debt of $1050. Plaintiff, as transferee of Alexander Stelly, brought this suit by way of third opposition, claiming the proceeds of the sale of the mortgaged property. The ground for action is the mortgage debt of $906 20, in settlement of which Bienvenu Stelly acquired the claim in question, was for Confederate treasury notes; therefore the claim of $1050, sought to be enforced, belongs to her as transferee of Alexander Stelly, who sold the land to Prejean.

The court maintained this opposition, and Bienvenu Stelly has appealed. The court erred.

Appellant is the owner of the claim of $1050 sought to be enforced, and the consideration thereof was for land; it was not for Confederate notes. The consideration of the mortgage of $906 20 may have been for Confederate notes; and if that obligation were sought to be enforced, the court, under the settled jurisprudence of the State, would refuse to allow any relief.

Plaintiff can assert no greater rights than Alexander Stelly, under whom she claims. Alexander Stelly could not recover from Bienvenu Stelly the claim against Prejean for $1050, which he gave in settlement of his own debt of $906 20, secured by mortgage; it was an executed contract; and it can not be annulled on account of Confederate .money consideration. The policy of the law is to allow neither party to recover on an immoral contract.

It is therefore ordered that the judgment herein be annulled, and that plaintiff’s demand be rejected with costs of both courts.


text:
    No. 893.
    Wm. C. Bee & Co. vs. Carlin & Leslie.
    Carlin & Leslie, being planting partners, borrowed of plaintiffs a certain sum of money to carry on their plantation and executed a written obligation which was duly recorded in 1872. In January, 1878, other parties claiming privileges upon the crop of said Carlin & Leslie sequestered a certain quantity of sugar, which sugar was released on bonds by the seizing creditors. Whereupon Carlin & Leslie compromised with said creditors who had caused the sale of the sugar. Subsequently, the plaintiffs in this present instance intervened in the suits aforesaid, claiming a privilege upon the property sequestered. The suits were dismissed in consequence, of the compromise, and tlie.intorvention followed the fate of the principal suits. Long afterward, Bee & Go. instituted the present suit against Carlin & Leslie, who were then absentees, and sequestered the delivery bonds executed by the plaintiffs in the former suits as the property of the absent defendants, claiming a privilege on said bonds.
    The more statement of the ease shows that the plaintiffs’ pretensions are untenable, whon they intervened in the original suits, those suits, in fact, did not exist, having been previously settled by the debtors. Consequently, the bonds were virtually canceled by the settlement, and the defendants, Carlin & Leslie, have no right or title to them.
    APPEAL from the Third. Judicial District Court, parish of St. Mary. Train, J.

      Fred. Gates, for plaintiffs and appellants.

      A. G. Allen, representing absent defendants and appellees.
   Ludeling, C. J.

Carlin & Leslie, planters in St. Mary, procured a loan of three thousand dollars from W. C: Bee & Co. to carry on their plantation, and executed a written obligation for the same, which was duly recorded in 1872. In January, 1873, creditors of the defendants, holding privileged claims against them, sequestrated about seventy-five hogsheads of sugar belonging to them, and, subsequently, the plaintiffs in said suits bonded the sequestrated property. 'Whereupon, during the; same month, Carlin & Leslie compromised with said creditors, who had caused the sale of the sugar, by acknowledging their claims, and consenting to their payment out of the proceeds of the sale of the sugar, and received the surplus of the price. After this, the plaintiffs in the pending suit intervened in the suit aforesaid, claiming a privilege upon the property sequestered. The suits wore dismissed by judgment of the court on motion of plaintiffs; and the intervenors also followed the fate of the principal suits. The intervenors did not appeal, but long afterward instituted the present suit against Carlin & Leslie, who were then absentees, and sequestered the delivery bonds executed by the plaintiffs in the former suits, as the property of the absent defendants, claiming to have a privilege upon said bonds. The mere statement of the case shows that the plaintiffs’ pretensions are untenable. When they intervened in the original suits, in fact, the suits did not exist, having been previously settled by the debtors. Consequently, the bonds given by the plaintiffs for the delivery of the property were virtually canceled by the settlement, and the defendants Carlin & Leslie have no right or title-to them.

■ The defendants, being absentees; and having no property in the State, could not be properly sued here. But whether they could be-sued or not, obviously they had no rights in the forthcoming bonds aforesaid, and the plaintiffs could have no privilege upon said ■ bonds, and no grounds existed for a sequestration. The case in 9 An.- 422- is- not in point.

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


text:
    No. 965.
    Thomas C. Anderson, Administrator and Agent, et al. vs. Benjamin A. Smith, Administrator.
    Plaintiffs instituted proceedings to compel defendant to give additional security as administrator of the estate of the deceased, whose heirs they allege to be, because the sureties on his bond had become insolvent and had enjoined him from acting further in that capacity until his furnishing the rectuired security. The injunction was released on a bond of three thousand dollars by the judge who issued it. Prom this interlocutory order plaintiff has appealed.
    The motion to dismiss the appeal because the value of the succession is not stated in tho petition, and, because there is nothing to show that the matter in dispute exceeds five hundred dollars, can nbt prevail. The judge fixed the injunction bond at three thousand dollars. This is satisfactory proof that the matter in dispute must exceed five hundred dollars. Besides, appellants have filed in this court an affidavit showing that the value of the succession is largely in excess of that sum.
    The motion, however, to dismiss the appeal because the order appealed from can not work an irreparable injury to appellants is well taken. There is nothing to show that the value of the succession exceeds the amount of the release-bond. It will amply protect appellants from loss resulting from tho release of the injunction.
    It is the evident interest of the succession that the administrator should be in a. position to discharge his duties pending the litigation, and the judge a quo exercised a wise discretion in releasing on bond the injunction restraining the performance of such duties.
    APPEAl from the Parish Court, parish of St. Landry. Garrigues, J.

      John JS. King & B. A. Martel, for plaintiffs and appellants.

      Henry L. Garland, for defendant and appellee.
   Wyly, J.

Plaintiffs, claiming to be heirs of the succession of Theresa A. Hardy, of which defendant has been administrator since 1864, instituted proceedings to compel, him to give additional security, the sureties on his bond having become insolvent; they also enjoined him from acting further in said capacity until he gives the required security.

• This injunction, was released on a bond of three thousand dollars; fixed by the judge who issued it.

From this interlocutory order setting aside the injunction on bond the plaintiffs appeal. Appellee moves to dismiss the appeal because the value of the succession is not stated in the petition, and there is nothing to show the matter in dispute exceeds five hundred dollars.

That the judge fixed the injunction bond at three thousand dollars satisfies us that the matter in dispute must exceed five hundred dollars. Besides, appellants have filed in this court an affidavit showing that the value of the succession is largely in excess-of five hundred dollars. Ap-pellee also moves to dismiss the appeal because the order appealed from can not work an irreparable injury to appellants. This motion is well taken. There is nothing to show that the value of the succession exceeds the amount of the release bond; it will amply protect appellants from loss resulting from the release of the injunction. It is the evident interest of the succession that the administrator should be in a position to discharge his duties pending the litigation, and it occurs to us the judge exercised a wise discretion in releasing on bond the injunction restraining the performance of such duties.

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


text:
    No. 960.
    Mrs. Margaret E. Winter and Husband vs. John J. Atkinson.
    Defendant excepts to plaintiff’s suit to annul a sale, on the ground that plaintiff has not tendered or offered to pay to defendant the whole of the taxes for which the property was sold, but only her pro rata thereof. Plaintiff was not required to tender the whole amount of the taxes paid by defendant. Her pro rata share thereof was quite sufficient.
    It is not necessary that plaintiff should show title to all the property in a suit to recover her share thereof; besides, this is no cause to dismiss the suit. The. question as to tho validity or the extent of plaintiff’s title will arise on the merits.
    The fact that defendant held a tax-title did not preclude tho succession sale of the share of the succession of Moss in the land in question.
    A party in possession can not prevent a party holding an adverse title from selling it if he desires. Possession is not essential in the contract of sale.
    Tho objection that defendant holds a deed from tho Auditor, which is alleged to be a bar to this petitory action, is manifestly unfounded.
    Tho evidence of a title, whatever it may be, can not be a cause to dismiss a petitory action.. A trial of the rights of property can not be avoided by such a pretext.
    A tax-title, if regular, is prima facie valid, under thd present constitution : but this • will not prevent the owner from showing the invalidity thereof. If the sale by the tax-collector was radically defective, as alleged by plaintiff, tho deed of tho Auditor did not give validity to it. The case is remanded to bo tried on its merits.

      APPEAL from the Third Judicial District Court, parish of St. Mary! Train, J.

      Ii. S. Perry, for plaintiff and appellant.

      P. Caffery, for defendant and appellee.
   Wyly, J.

Plaintiff and defendant are co-proprietors'of a tract of land. Defendant took possession of the whole tract on the ground he purchased at tax-sale on the thirtieth of November, 1872, the shares of plaintiff in said' land. Plaintiff now sues to annul this sale for infor-malities, alleging that the forms of law have not been complied with, and the tax-title is void. Defendant excepted to the suit on the following grounds:

First — Plaintiff has not tendered or offered to pay to defendant the whole of the taxes for which the property was sold, but only her pro rata thereof.

Second — Plaintiff has not disclosed sufficient title to recover the whole of the property, and defendant can not be compelled to litigate his title in separate suits, there being another co-proprietor, who is not made party.

Third — Plaintiff discloses no sufficient title to the share claimed, by her, the adjudication to her of the share owned by the estate of Moss being invalid because at the time defendant was in possession under his ■tax-title.

Fourth — The title which he holds from the Auditor is a complete bar to the suit, and covers all defects in the conveyance made by the tax-collector.

The court maintained this exception and dismissed the suit. Plaintiff appeals.

We think the court erred. Plaintiff was not required to tender the whole amount of the taxes paid by defendant; her pro.rata share thereof was quite sufficient. •

It is not necessary that plaintiff should show title to all of the property in a suit to recover her share thereof; besides, this is no cause to dismiss the suit; the question as ’to the validity or the extent of plaintiff’s title will arise on the merits. The fact that defendant held a tax-title did not preclude the succession sale of the share of the succession of Moss in the land in question. A party in possession can not prevent a party holding an adverse title from selling it if he desires. Possession is not essential in the contract of sale.

Thelast objection, to wit: that defendant holds a deed from the Auditor, and that is a bar to this petitory action, is manifestly unfounded. The evidence of a title, whatever it may be, can not be a cause to dismiss a petitory action; a trial of the rights of property can not be evaded by such a pretext. A tax-title, if regular, is prima facie valid, under the present constitution; but this will not deprive the owner from showing the invalidity thereof. If the sale by the tax-collector was radically defective, as alleged by plaintiff, the deed of the Auditor did not give vitality to it. The exception must be overruled and the case remanded for trial on the merits.

It is therefore ordered that the judgment appealed from be annulled, that the exception be dismissed, and the cause remanded for trial on the merits according to law, appellee paying costs of appeal. .


author: Ludelinu, C. J.

text:
    No. 931.
    St. Germain and Maraist vs. Darcourt Landry and Wife.
    Tile prescription oí one year is pleaded against the plaintiffs’ action to set aside a daMori enpaiement and to annul a judgment in favor of the wife against the husband. This suit having been instituted on the seventh of March, 1871, the plea is good as to the dation enpaiement, which was executed on the fifteenth of February, 1872, but was untenable as to the judgment which was obtained on the twenty-nintli of' November, 1873.
    Article 1987 of the .Civil Code applies exclusively when the alleged nullity is an. undue preference given to one creditor over another, and the action must then be brought within a year from the contract or judgment, while article 1991 applies to all contracts or judgments by which creditors are injured, and then is prescribed in one year, to date, if brought by a creditor individually, from his judgment against the debtor; and if by the syndic or representative of creditors, from his appointment. In this case article 1991 governs.
    The position assumed by the plaintiffs that certain deductions from the amounts received by the husband on account of his wife should be made, because they were for the price of slaves, is erroneous.
    APPEAL from the Third Judicial District Court, parish of St. Martin. Train, J.

      Felix Voorhies & M. Voorhies for plaintiffs and appellants.

      L. J. Oanj, for defendants and appellees.
   Ludelinu, C. J.

This is an action instituted by the plaintiffs against fhe defendants to set aside a dctiion en paiement from the husband to the wife, and to annul a judgment in favor of the wife against the husband.

The prescription of one year against the plaintiffs’ action is pleaded.

The dation en paiement was executed on the fifteenth of February, 1872, and the judgment in favor of the wife was obtained on the twenty-ninth of November, 1873. This suit was instituted on the seventh of March, 1874, more than one year after the dation en paiement and less than one year after the rendition of the wife’s judgment.

The plea is, therefore, good as regards the dation en paiement, but untenable as to the judgment.

Article 1987 of the Civil Code applies exclusively when the alleged nullity is an undue preference given to one creditor over another, and the action must then be brought within a year from the contract' or judgment, while article 1994 applies to all contracts or judgments by which creditors are injured, and then the action is prescribed in one' year, to date, if brought by a creditor individually, from his judgment against the debtor, and if by the syndic or representative of creditors, from his appointment. In this case article 1994 governs.

But the evidence satisfies us that the wife’s judgment is substantially correct. The position assumed by the plaintiffs that certain deductions’ from the amounts received by the husband on account of his wife should be made, because they were for the price of slaves, is erroneous. 5 An. 688; 25 An. 287.

It is therefore ordered and adjudged that the judgment of the lower •court be affirmed with costs of appeal. ' f


text:
    No. 955.
    The State of Louisiana vs. George Robinson.
    'The objection to the ruling of the court refusing to quash the indictment and permitting the district attorney to amend it by ¡inserting after the words grand jurors “ of the parish of Rapides,” is not well .founded., This amendment was not necessary, and the indictment was sufficiently explicit without it, because the name of the parish was stated in a previous part of the indictment, and it need not be repeated in every sentence thereof.
    ‘The other objection relied upon is that the judge a quo refused to allow a witness, who had stated in behalf of the State an! admission of the accused to give all the conversation occurring at the time when cross-examined by the defendant’s counsel. The defendant clearly had the right to draw from the witness all the conversation occurring at the time of the alleged admission made by him; but he has, however, no cause to complain, because, after the district attorney had objected and the court was called to rule on the point, the bill of exception shows the district attorney waived his objection, and the counsel for the accused was requested to interrogate the witness as desired, but he refused to do so, and declared he would not examine the witness further unless the point' was ruled on by the judge. There was no cause for this objection.
    APPEAL from the Ninth Judicial District Court, parish of, Bapides. Orsborn, J.

      JS. G-. Hunter, District Attorney, for plaintiff and ap-pellee.

      Bobert P. Hunter, for defendant and appellant.
   Wyly, J.

Defendant, who was convicted of the crime of petty larceny and sentenced to the Penitentiary for' one year, appeals from the judgment against him.

There are several bills of exceptions in the transcript, but no assignment of errors and no argument, written or oral. "We will notice the objections presented in the-bills of exceptions.

The first is to the ruling of the court refusing to quash the indictment and .permitting the district attorney to amend it by inserting after thp-words grand jurors the words i: of the parish of Bapides.” This amendment was not necessary, and the indictment was sufficiently explicit., without it, because the name, of the parish was stated in a previous part of the indictment, and it need not be repeated in every sentence thereof,.

The next objection is to' the ruling of the court permitting the district, attorney to ask a witness “ whether or not he had been a witness in several cases at the last term of the district court,” the defendant’s counsel contending that this interrogation tended to discredit said witness in a mode not provided by law. This objection was frivolous.

The objection in the last bill of exception is that the judge refused to,allow a witness who had stated in behalf of the State an admission of' the accused to give all the conversation occurring at the time when, cross-examined by the counsel of defendant. The defendant clearly had the right to draw from the witness all the conversation occurring at the time of the alleged admission made by him; but he has no cause to complain, because, after the district attorney had objected, and the court was called to rule on the point, the bill of exception shows the district attorney waived his objection, and the counsel for the accused was requested to interrogate the witness as desired, but he refused to do so, and declared he would not examine the witness further unless the point was ruled on by the ¡jtídge. There was no cause for this objection. .

■Judgment affirmed.


author: Howell, J.

text:
    No. 921.
    State of Louisiana and Parish of St. Landry vs. Ferdinand Wikoff.
    The defendant was condemned by a judgment of á justice of the peace to pay a fine of twenty dollars and costs for refusing to work on the public roads. Execution issued thereon, and, being returned nulla bona, he was indicted by the g’f ^nd jury, tried before'a petty jury, found guilty, and sentenced in the district court to imprisonment in the parish jaii under a provision of llie Revised Statutes and an ordinance of the police jury for thirty days. Erom this judgment he ..appealed. . . . . :
    The motion to dismiss this appeal must prevail on the plea of want of jurisdiction 'as it is a criminal ease where' the 'punishment is n« t death, imprisonment at hard labor, or a.fine, exceeding three hundred dollars.
    That this is a criminal case can not be doubted. There was an indictment by a grand jury'and a verdict by a petty jury. By the constitution this court has jurisdiction in criminal cases “on'questions of law,only, whenever the punishment of death or imprisonment at hard labor or a fine exceeding threehundred dollars is actually imposed.” There is no such punishment here.
    There is no'forbó in theUIlégation that; becáú'só the ordinance of the police jury under which the defendant was condemned by the justice of the peace to. pay a fine or penalty, for the non-payment of which ho was indicted and sentenced in the district court, is attacked as unconstitutional, therefore the' case, being dual--' ' ■ both civil and criminal — is appealabje, . , ,

      The fallacy of-.this position is that, if the ease he dual, the only branch of it before-this court is the criminal part — the indictment and the conviction thereunder,. which began where the civil part ended — the penalty or line in money imposed by the justice. This latter part of the proceedings against the defendant is not in this case, except as the cause for or basis of the prosecution, and as evidence ■ 'upon which conviction is founded. This court can not'revise that proceeding, it not being before it; nor can this court consider it in determining the question of jurisdiction, of the branch of the proceeding brought up op appeal.
    If it be ednCeded that the clause of the ordinance of the police jury which author- - ized the defendant to be fined by the'justice of the peace is unconstitutional, it will not give this court jurisdiction in the criminal proceeding in which he was indicted, convicted, and sentenced to imprisonment, because the issues in this last proceeding alone control the jurisdiction thereof. The issues or questions in one ease do not affect jurisdiction of another. The clause of the constitution invoked as giving jurisdiction in this instance refers to civil eases only.. . .
    APPEAL -fr,om the Eighth Jufiicial District Court, parish of St. Landry; Ifudspeth, J; Criminal case.

      Ferreol. Perrodin, District Attorney, and John N. Ogden, District Attorney pro tern., for plaintiff and appellee.

      Kenpeth Baillio., for defendant and appellant.
   Howell, J.

, A, motion is made to dismiss this appeal for the want pf .jurisdiction, as-it is in a criminal case where the punishment is not-death, imprisonment at hard labor, or,a fine exceeding three hundred clpllhrs;

The defendant was .condemned by a judgment of a justice .of the peace to pay a-fine, of twenty dollars and costs for refusing to work on, the. public roads. Execution, issued thereon, and, being returned nulla honat he was indicted by the .grand jury, tried before a petty jury, found guilty,- and sentenced in thp.district court to imprisonment in the parish jail,-for thirty days, under a provision of the Devised Statutes and an ordinance of the police jury.- • From the judgnient imposing this punishment hq has appealed.. -

That this is a criminal proceeding can not be doubted. An indictment was found by the grand jury, against the defendant, and, upon-trial, the following verdict was found ■ by the petit jury: “We, thp - jury, find the prisoner at the bar guilty in manner and. form as charged against him ip the bill of indictment filed.against him.” , - ....

It is only .on criminal charges that, the grand jury can find an indict-, ment, and only of a crime or .offense can a person be found guilty, when so indicted. By. the constitution this court has jurisdiction in criminal cases “ on questions of law only, whenever the punishment ,of death, °P imprisonment at hard labor, pr a fine exceeding three hundred dollars is, actually imposed.” No such punishment is imposed here. .The.only punishment imposed in this proceeding is imprisonment in the parish jail for thirty dpys, and,hence we have no jurisdiction under the above provision of the constitution. , . • - . -

It. is contended, however, that jurisdiction is conferred in the preceding elause-of the-same article of the constitution, to wit:. “To all cases in which the constitutionality or legality of any tax, toll, or impost of. any ldnd or nature whatsoever, or any fine, forfeiture, orpeiialty imposed by a municipal corporation shall be in contestation, whatever may be the amount thereof,” and (it is said) because the ordinance of the police jury under which the defendant was condemned by the justice of tne peace to pay a fine or penalty, and for the non-payment of that penalty he was indicted and sentenced in the district court, is attacked as unconstitutional, therefore, the case being dual'in its nature (both civil and criminal), is applicable. The fallacy of this position is, that if the case be dual, the only branch of it before us is the criminal part — the indictment and the conviction thereunder, which began where the civil part ended — the penalty or fine in money imposed by the justice of the peace. This latter part of the proceedings against defendant is not in this case, except as the cause for or basis of the prosecution and as evidence upon which conviction is founded. We can not revise that proceeding, it not being before us; nor can we consider it in determining the question of jurisdiction of the branch of the proceeding brought up on appeal. If it be conceded that the clause of the ordinance of the police jury which authorized the defendant to be fined by the justice of the peace is unconstitutional, it will not give this court jurisdiction in the criminal proceeding, in which he was indicted, convicted, and sentenced to imprisonment, because the issues in this last proceeding alone control the jurisdiction thereof. The issues or questions in one case do not affect the jurisdiction of another. The .clause of the constitution invoked as giving jurisdiction of this case refers to civil cases only. This is evident from its terms and from its juxtaposition with the other. All the clauses of article seventy-four on this subject, except the last, relate to the civil jurisdiction of this tribunal. It says “the jurisdiction shall extend to all cases where the matter in dispute shall exceed five hundred dollars, and to all cases in which the constitutionality or legality of any tax, toll, or impost of any- kind or nature whatsoever, or any fine, forfeiture, or penalty imposed by a municipal corporation shall be in contestation, whatever may be the amount thereof, and in such cases the appeal shall be direct-from the court in which the case originated to the Supreme Court.” Now, if the last class of cases here mentioned was intended to embrace other than purely civil cases, the subsequent and last clause would have been unnecessary, or very different in its construction. But the subject of appellate jurisdiction was not exhausted; all the cases in which appeals were to be had were not disposed of by this portion of the article, and it was added, with marked distinction, “ and in criminal cases, on questions of law only, whenever the punishment of death, or imprisonment at hard labor,- or a fine exceeding three hundred dollars is actually imposed.” In this clause is embraced all the criminal jurisdiction conferred on this court. The expression “ and in criminal cases,” as it is used here, is in contradistinction with the preceding clauses, which conferred jurisdiction in all cases involving money or value.

In the first part of the article it is extended to all cases over five hundred dollars, and to all cases involving the constitutionality or legality of any tax, toll, or impost, or of any fine, forfeiture, or penalty imposed by a municipal corporation, and yet it was deemed necessary to define the appellate jurisdiction in criminal cases, and the language used confines it to very narrow limits, which do not include or embrace this case. We, have only such jurisdiction as is expressly conferred.

We are very clear in our conyiction that we,have no jurisdiction of this appeal.

It is therefore ordered that this appeal be dismissed with costs.


author: Taliaeerko, J.

text:
    No. 941.
    State of Louisiana vs. Alexis Frugé.
    The accused, in support o£ a motion for a new trial, offered one of the jurors who sat on the trial of his case as a witness to prove that, after the jury had received the charge of the judge and had retired for consultation, they were divided in their opinion as to-the verdict to .be rendered, and that it was then and there urged upon the jurymen unwilling to convict by those who were in favor of conviction that the accused had no defense because his counsel had submitted his caseto the jury without argument, and that this testimony was offered to show that the jury did not eome.to their verdict by considering the law and evidence. The introduetion of this evidence was properly rejected by the court.
    Toa bill of exception founded on the allegation of misconduct on the part of one of the jurors and separation of the jury before rendition of their verdict, the judge a quo appended the following: “ The j uror, without permission of the court or consent of the accused, left his seat in the jury-box and advanced to where the district attorney was sitting and whispered something in his ear. The district attorney made no reply, but merely shook his head; whereupon the juryman immediately returned to his seat. All this occurred in open court, in presence of the accused, the officers of the court, counsel of the accused, and the other j urymen.” The court a Qua was of the opinion; “There was neither a separation of the jury nor misconduct on their part, and that the verdict of the jury was strictly in accordance with the law and the evidence.” This ruling is correct.
    APPEAL from the Eighth Judicial District Court, parish of St. Landry. Hudspeth, J. Criminal case.

      Ferreol Perrodin, District Attorney; for plaintiff and appellee.

      Lewis & Brother, for defendant and appellant.
   Taliaeerko, J.

The defendant was convicted of the crime of rape and sentenced to the Penitentiary during life. He appeals from the sentence.

The record contains three bills of exceptions, embodying the reasons stated by defendant why he should be allowed a new trial, which was refused:

First — The accused, in support of his motion for a new trial, offered one Alexandre Lepine, one of the jurors who sat on the trial of the case, as a witness to prove that after the jury had received the charge of the judge and had retired for consultation the jury was divided in their opinion as to the verdict to be rendered, and that it was then and there urged.upon the jurymen unwilling to convict by those who were in favor of conviction that the accused had no defense because his counsel had submitted his caketo-the jury without argument, and that this testimony was offered to show that the jury did not come to their verdict by considering the law and the evidence. . '

The introduction of this evidence was objected to by the district attorney and rejected by the judge. The testimony was utterly inadmissible, and was properly refused by the court.-

Second — That upon the impaneling of the jury, and before rendition of their judgment, there was misconduct on the part of one of the jurors in this, and a separation of the jury in this, viz.: that the juror, after the jury had been impaneled and sworn, and while they were yet in the jury-box, left his seat and held- a whispered conversation with the district attorney.

The court overruled this objection, and appended to the bill of exceptions the following: The-juror, without permission of the court or consent of the accused, left his seat in the jury-box and advanced to where the district attorney was sitting and whispered something in his ear. The district attorney made no answer, but merely shook his head, whereupon the juryman immediately .returned to his s.eat. All this occurred in open court, in presence of the¡ accused, the officers of the court, counsel of the accused, and the other jurymen.” The court was of the opinion “ there was neither a separation of the jurynor misconduct on their part, and that the verdict of . the jury was strictly in accordance with the law and the evidence.” The ruling of the judge we think correct. i- . .

Third — The district attorney offered the evidence of himself and the juror whose act-was complained' of to establish what it was that passed at the time the juror whispered in the ear of the district attorney, and to explain it. Objections were made to the. comiietoncy of these witnesses. .

The court overruled the objections for the reason that “ it is well established that however improper the conduct of the juror may have been, yet if it does not appear that it was «occasioned by the prevailing party or any one else -in his behalf, if it does not indicate an improper, bias upon the juror’s mind, and the court can not see that it either-had,-or might have had, an effect unfavorable to the party moving for a new trial, the yerdict ought not to be set aside.” Archbold’s Criminal Practice and Pleadings vol. 1, page 638. 'We see no error in this ruling.

The defense we regard as having no force.

It is therefore ordered that the judgment appealed from be affirmed with costs.