text:
    No. 9838.
    Orleans Appeal.
    STATE EX REL. LOUIS A. MAJENDIE v. CONSTABLE OF FIRST CITY COURT ET AL.
    (November 3, 1924, Rehearing Refused.)
    (December 3, 1924, Decree Supreme Court Writ of Certiorari and Review Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Courts, Par. 140; Laws, 68, 69, 72.
    The several Courts of Appeal of this State have no supervisory jurisdiction and may issue writs of mandamus, certiorari, etc., only in aid of their appellate jurisdiction.
    .In re Louis A. Majendie applying for writs of mandamus and certiorari.
    Alternate writ of mandamus heretofore issued is recalled.
    Paul W. Maloney, relator.
    Benjamin Y. Wolf, for constable.
   Relator, Louis A. Majendie, presented a petition to the Civil District Court alleging that he was the owner of a certain motor truck valued at $857.72 which had been seized by the Constable of the First City Court in execution of a fifa in the case of San-I-Baker Corp., Inc. vs. Louis A. Majendie, Jr., No. 121,200 of the docket of the said First City Court; that Relator had made affidavit as to the ownership and value of the seized property in the First City Court but that plaintiff had given the Constable an indemnity bond and the Constable was proceeding with the sale of Relator’s property. A restraining order and rule nisi was prayed for upon the ground that the amount involved exceeded the jurisdiction of the First City Court and upon the court declining to issue the order as. prayed for application was made to this court for writs of mandamus and certiorari.

Section 29 of Art. VII of the Constitution of 1921 declares that “The Courts of Appeal, except as otherwise provided in this Constitution, shall have appellate jurisdiction only”. See. 10 of Art. VII of the Constitution provides that “The Supreme Court shall have control of, and general supervision over all inferior courts.”

We can find no provision in the Constitution conferring supervisory jurisdiction upon' the Courts of Appeal. Under Section 2 of Article VII authority is given the Courts of Appeal to issue writs of man-' damus, certiorari, prohibition, etc., but only in aid of their appellate jurisdiction. See State ex rel. Hirsch vs. Judge, 39 La. Ann. 95, 1 South. 281.

Our appellate jurisdiction is not invoked in this case and we therefore conclude we have no authority to* grant the relief prayed for, consequently the alternate writ of mandamus heretofore issued is recalled and relator’s petition dismissed at his cost.


source: Caselaw Access Project

license: Public Domain

text:
    No. 8708-9244 Consolidated
    Orleans Appeal.
    SHUSHAN BROS. & CO. v. DRENNAN & HILLCOAT, ET AL., Appellants.
    (November 17, 1924, Opinion and Decree.)
    (December 15, 1924, Rehearing Refused.)
    (January 13, 1925, Writ of Certiorari and Review to Supreme Court.)
    (See 158 La. 480, 104 South. 214.)
    Appeal from Civil District Court, Division “A”, Hon. Hugh C. Cage, Judge.
    Judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    Meyer S. Driefus, Chas. J. Rivet, attorneys for plaintiff and appellant.
    T. S. Walmsley, Monroe & Lemann, attorneys for defendant and appellee.


author: WESTERFIELD, J.

text:
    No. 9244.
    Orleans Appeal
    JULIUS S. COHN & CO., Assignee, SIM MONS, COHN & CO., Appellant, v. DRENNAN & HILLCOAT, ET AL.
    (November 17, 1924, Opinion and Decree.)
    (January 13, 1925, Decree Supreme Court Writ of Certiorari and Review Granted.)
    (See 158 La. 480, 104 South. 214.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Partnership—Par. 4 19.
    An agreement to share profits creates a presumption of partnership.
    (Civil Code, Art. 2801. Editor's note.
    2. Louisiana Digest — Partnership—Par. 59, 61, 65.
    A participation as principal in the management of a joint adventure under an agreement to share profits creates, the relation of partnership and imposes' liability as such.
    Appeal from Civil District Court, Division “B”. Hon. Mark M. Boatner, Judge.
    These are suits for collection of open accounts.
    Judgment for plaintiff. Defendants appealed.
    Judgment amended.
    Meyer S. Driefus, Chas. J. Rivet, attorneys for plaintiff and appellee.-
    T. S. Walmsley, Monroe & Lemann, attorneys for defendant and appellant.
   WESTERFIELD, J.

Ralph W. Drennan and Robert W. Hillcoat were sued by Julius S. Cohn & Company, and Shushan Bros. & Company, local merchants, in separate actions on open accounts, in each of which the plaintiffs allege that the defendants are liable for the accounts sued on as commercial partners. The defense in each case is, in effect, a general denial on Hillcoat’s part. No appearance being made on Drennan’s behalf. One suit, that of Shushan Brothers & Gompany, was allotted to Division “A” of the Civil District Court and resulted in a judgment in that division recognizing the partnership relation between the defendants and holding them liable in solido. The other suit was allotted to Division “B” of the Civil District Court and in that division it was held that Drennan alone was responsible on the ground that the merchandise for the payment of which the plaintiff sued was bought by Drennan alone as his contribution to the. .joint venture, the character of which the court found it was unnecessary to determine. Both cases'‘ were appealed and in this' court consolidated. Drennan has not defended either suit, consequently we have only to consider Hill-coat’s responsibility.

We shall first consider the judgment of our learned brother of Division “A” of the Civil District Court, for if we can agree with him, we shall be spared the labor involved in the determination of the more complex question of partnership vel non.

We quote the following from the reasons for judgment given by our brother below:

“The plaintiffs argue that they have proved a partnership in fact; for they say Hillcoat agreed to furnish money to pay' the expenses of carrying on a common enterprise, and Drennan agreed to furnish the goods which were to form its stock-in-trade and his services in disposing of them, and the profits were to be divided; so making a typical case of partnership within the definition of C. C. 2801.
“However, I need not decide the point; for, granting that there was a partnership between Drennan and Hillicoat, the plaintiffs had no contract with it and furnished it nothing; they furnished to Drennan what Drennan was obligated to furnish to the partnership as his contribution to its capital; and Drennan, not the partnership, is their debto'r. This question arose in Wells vs. Seiss, 24 La. Ann. 178. There two of three partners, being bound to furnish a sum of money for their share of the capital of the partnership, borrowed it from the plaintiff, and, notwithstanding the money went into the treasury of the partnership and was used for its purposes, the partnership was held not to be liable. In Smith vs. Senecal, 2 R. 456, on similar facts the same rule was applied; and to the same effect is Nathan vs. Gardere, 11 N. S. 265.”

We are in complete accord with the .conclusions of law given in the able expression of reasons for judgment from which we have quoted but with, every disposition to credit the findings of fact under familiar principles of appellate procedure we can find no support in the record for the conclusion that Drennan agreed to furnish merchandise as his contribution to the joint adventure. In the first place no amount of merchandise is mentioned and surely Drennan would hardly agree to buy an indefinite amount and besides some of the merchandise was paid for by Hillcoat and the payment of other items guaranteed by Hillcoat. Drennan bought on his own credit very little for, as he states, he had a very limited credit. What he did agree to do was to use his credit, as far as it would go, in the interest of joint enterprise and to give- his time and talents.

Drennan testifies that merchandise was to be obtained upon the credit of both Hill-coat and himself:

Q. What arrangement did you have with Mr. Hillcoat with reference to the purchase of the merchandise and sale of same?
A. Part of the merchandise was secured on my own credit and part of the merchandise was guaranteed by Mr. Hillcoat.

And at another point in his testimony:

Q. Was there any limit in any way imposed on you as to how much goods was or was not to be paid for by Mr. Hillcoat at any time?
A. We discussed approximately the amounts of merchandise, yes.
Q. Do you mean in regard to the guarantee or in regard to everything you were taking?
A. We discussed the amount of merchandise I was taking on my own credit and the amount guaranteed on Mr. Hillcoat’s credit.

Hillcoat testifies:

Q. Did you guarantee any of the accounts of Hillcoat & Drennan?
A. I guaranteed two specific accounts, which Mr. Drennan came to me and said he could not get the’ goods, and I wrote letters guaranteeing those specific amounts of money, and no more.

We are forced to conclude that our learned brother fell into error .and we advanee to the consideration of the question of partnership vel non.

It was long the settled rule that any participation in. the profits of an enterprise constituted a partnership particularly as to liability to third persons. In the English case of Grace vs. Smith, 2 W. B. I. 998, decided in 1775, this doctrine was first announced and for nearly a hundred years was the law in England, though it was not always followed with enthusiasm, as appears from the following statement of Lord Eldon in Ex parte Harper: “It is clearly settled, though I regret it, that if a man stipulates that he shall have, as the reward of his labor, not a specific interest in the business, but a given sum of money, even in proportion to a given quantum of the profits, that will not make him a partner; but if he agrees for a part of the profits, as such, giving him a right to an account, he is, as to third persons, a partner.”

In Louisiana under the Code of 1825 (the provisions relating to partnership are not found in the Code of 1808) the same rule prevailed for many years. To quote Chief Justice Merrick:

“If we examine such Articles of the Civil Code of 1825, as seem applicable to the case, we shall find that the provisions of the common law on this subject seem to have been adopted ex industria by the Legislature. They were not contained in the Code of 1808, and would seem to have been introduced for the purpose of rendering the law of Louisiana on this subject harmonious with that of our sister States.”

In the leading case of McDonald vs. Millaudon, 5 La. Ann. 403, decided in 1833, where the rule of law was held to be the same as the common law, the court observed:

“But this case cannot be decided alone on the provisions found in the Civil Code on partnership. That work guarded against the inference of the non-existence of other rules to which courts should recur for the decision of cases before them, by a declaration that its provisions ‘apply to commercial partnerships inasmuch only as they do not contain anything contrary to the laws and usages of commerce.’ When the tribunals of this country were first called on to interpret this, and a similar provision in our law, there was great doubt to what laws and usages of commerce, reference was thus made. It was finally concluded, though not without hesitation, that they must have had in view the usages and laws prevailing in our sister States, unless these laws and usages conflicted with the positive legislation of Spain, or were in opposition to local usages prevailing in Louisiana. Whatever difficulty attended this decision when first made, there can be none in following it now. A considerable time has elapsed since it was made public. Contracts almost innumerable have been executed in reference to it. Rights have been repeatedly adjusted under its authority; property to a large amount acquired in relation to it; and stranger than all these, the Legislature of the State by their silence on the subject, have authorized the belief that the court correctly interpreted the previous expression of their will. We must, therefore,. look to the law merchant of the United States, for the consequences attending acts such as are proved in this case, on the defendant. Then, as has been already stated, the question is not susceptible of doubt in relation to strangers contracting with the firm, though as between the parties themselves a different rule may prevail, or one at least modified in many important particulars. It is unnecessary to cite all the cases in which the doctrine has been recognized. One will suffice. The Supreme Court of the United States has lately declared the rule to be perfectly settled, that a party who shares in the profits, although his name be not in the firm, is responsible for its debts. In the present ease, the defendant contracted for these profits, and received them. 5 Peters, 561.”

Incidentally the court in the last cited case found the law of Spain to be in accord with the common law.

. It was therefore practically the universal rule that an agreement to share profits involved a liability to third persons for losses and created the relation or status of partnership. The reason for the rule was that “if any one takes part of the profit, he takes a part of that fund on which the creditor of the trader relies for his payment”. Both the reason and the rule were severely criticised though adhered to with customary British tenacity, but in 1860, in the English case of Cox vs. Hickman, 8 H. L. Cos. 268, the entire doctrine was overthrown and profit sharing as the acid test of partnership abandoned. Louisiana followed suit and in the case of Chapfraux & Ager vs. Price, Hiñe & Tupper, 29 La. Ann 176, decided in 1877, the Millauam case and others which followed it were overthrown. Whatever may be said of the old rule it was very easy of application for the sole question was profit sharing vet non. In this respect it had a great advantage • over the present situation in which each case rests upon its own facts and profit-sharing once so- decisive of the issue is now only presumptive, one element suggestive of partnership in no sense conclusive.

The rule established in the Price, Hiñe & Tupper case is thus stated by Judge Manning:

“The general principle we educe from this discussion, and which we consider control the present case, are, that a community of interest is the basis of every partnership; but it is not correct to say that every community of interest necessarily constitutes the relation of partnership. Participation in the profits will ordinarily establish the existence of a partnership, in the absence of all other opposing circumstances, between the participators in favor of third persons, but does not necessarily produce that effect. The fact that there is participation is presumptive proof that there is a partnership, but, like all presumptions, is liable to be overcome by circumstances. The rule does not outweigh or overcome or .demolish the circumstances, but the circumstances control the rule, and can repel the presumption created by it. The foundation of the rule is manifestly artificial. In adjusting it to the circumstances of each case you do not dislocate any part of the legal edifice erected' upon • it, but adapt each of them to the other so as to produce symmetry. The circumstances of each case must guide the court, and if in considering them the participation in the profits is clearly shown to be in the character of an agent or employee, the presumption of partnership is repelled.”

The partnership relation under the modern interpretation depends entirely upon the intention of the parties. This was always the rule as to partnership inter se.

Intention, however, means legal and not the expressed intention for a partnership rose by any other name will “smell as sweet”.

In Corley vs. Broad, 29 La. Ann. 355, the court said:

“The only reason for doubting the existence of the partnership arises from the express declaration of the parties that no partnership was created by the act of association. They certainly did enter into an association, furnishing thereto specified capital, agreeing to divide profits and losses in fixed proportions, and engaging to carry freights and passengers for hire. This, under our law (R. C. C. 2796), certainly constituted a ‘ commercial partnership, and made the associates liable solidarily for the debts of the association. When there exist all the conditions which, by law, create a legal relation, the effects flowing legally from such relation will follow, whether the parties íoresaw and intended them or not. Thus where a man transfers to another for a sum of money, and absolutely, the ownership of a thing belonging to him, the contract between them is that of sale, and all the legal consequences of that relation will follow, even though the parties declare it not a sale, but some other contract. The fact that the parties had made stipulations between themselves as to their liability for each other’s debts, or as to the proportion of their several responsibilities, cannot affect third persons, even had these stipulations been within the knowledge of such third persons.”

In Cameron et al. vs. Railway Co., 108 La. 83, 32 South. 208, the court held: .

“Partnership, no doubt, results from intention, but the question in any given case is, what is the intention of the parties? If, by their representations, dealings and conduct, it appears that they have agreed to everything that, as a matter of law, is necessary to constitute a partnership, and that, by reason of the rights which they have secured to, and the obligations which they have imposed upon, uiemselves, they occupy towards each other the relation of principals and really share the profits of the business in which they are engaged in that relation, and not as an employer and employee, it must follow that the business is theirs, and they are liable for the obligations incurred for its purposes for that reason, and the disclaimer, in their contract, of the intention, to enter into the partnership relation, and the assertion, thus contradicted, that they occupy, or intend to occupy, the relation of employer and employee, are not conclusive as to third persons.”

In Ruling Case Law, Vol. 20, p. 823, we find the following expression concerning the uncertainty of jurisprudence:

“No one fact or circumstance can be taken to be a conclusive criterion as to the existence of a partnership. The tests by Which its existence may be determined has long been a matter about which the courts have differed, and their views 'have undergone changes from time to time and rules formerly approved have become obsolete and new tests have been announced as a means of determining whether a particular association constitutes a partnership. A part of the confusion here appears to be due to a.lack of precision in the language of the jurists in their efforts to express in words subtle distinctions which have been compared with metaphysical abstractions. * s< * Tlte result is that the decisions in both England and the United States are so conflicting on the subject that to reconcile them is impossible.”

We deduce from the foregoing references the fact that there is no rule for measurement of the extent of participation in a joint enterprise which determines the partnership relation. The facts and circumstances of each case must decide the issue. With these general observations in mind we now approach a consideration of the facts of this case.

We premise our discussion of the facts with the statement that there was an agreement between the parties to share profits thus giving rise to the presumption of partnership. Was this presumption overcome by the special circumstances of this case is the question for consideration.

Drennan, a salesman, was. convinced that a profitable business might result from buying certain merchandise in New Orleans and selling it in Mexico. He tried to get Hillcoat to advance him some money ($1,200.00) apparently as a loan to enable him to get the merchandise for export. Hillcoat at first refused and afterwards agreed to put up the money, but insisted upon getting one-half the net profits of the venture. It was also agreed that Hillcoat was to receive his money back out of the first money realized from sales. The goods were bought, some on Drennan’s credit and some on Hillcoat’s guarantee of payment, but Drennan dealt only in his name. Every time Drennan made' a purchase he sent a copy of the invoice to Hillcoat. Hillcoat kept the books and received all the proceeds of sales which were sent by Drennan from Mexico. He paid some bills with a check on an account styled R. W. Hillcoat & Co., though there is no explanation of what partnership this account has reference to. It was suggested in argument' that since the first of these checks bears the number 303 the checks must have been drawn upon ah account belonging to another partnership of which Hillcoat was a member. This is' only a surmise and it is extremely unlikely that able counsel would have left this feature of the case to surmise if it were susceptible of proof. Be that as it may, we must take the record as we find it. Some of the sales were made on credit and notes given which were sent to Hill-coat. Hillcoat discounted these notes and when the makers of some of them failed to pay he made good the amounts to the discounting bank. There were some goods which Drennan was unable to sell after shipping to Mexico and they were turned over to Hillcoat’s agent in Mexico for sale. Counsel insists that Hillcoat was only a creditor of .Drennan for the money he put up, which, incidentally, was increased to $2,200.00 by the requirements of the enterprise and the consent of Hillcoat and an agent of Drennan in everything he did in the. interest of their joint adventure. We cannot agree with counsel, being of opinion that the presumption of partnership arising from the agreement to share profits has not been overcome by the circumstances of this case and we conclude that Hillcoat is liable as a commercial partner.

For the reasons assigned it is ordered that the judgment of the Civil District Court in the case of Shushan Brothers & Company vs. Drennan and Hillcoat et al., be affirmed at appellant’s cost.

It is further ordered that the judgment of the Civil District Court in the matter of Julius S. Cohn & Company, assignee, Simmons Cohn & Co. vs. Drennan & Hillcoat et al., be reversed in so far as it dismisses plaintiff’s suit against Ralph W. Hillcoat and it is now ordered that there be judgment in plaintiff’s favor as prayed for in this original petition with costs of both courts.


author: CLAIBORNE, J.

text:
    No. 9009.
    Orleans Appeal.
    MARKS CURRY, Appellant, v. ILLINOIS CENTRAL R. R. CO.
    (November 17, 1923, Opinion and Decree.)
    (May 19, 1924, Rehearing Granted.)
    (November 3, 1924, Opinion and Decree [On Rehearing]).

      (Syllabus by the Court.)

    1. Louisiana Digest, Railroads, Par. 63, 64.
    Where the testimony shows- that the accident occurred through the carelessness and negligence of the plaintiff himself, he cannot recover even though the defendant might have been guilty of a failure to perform his duty, unless the defendant, by the exercise of reasonable care, could have avoided the accident.
    (Civil Code, Art. 2315 — Editor’s Note.)
    Appeal from Civil District Court, Division “C”, Hon. E. K. Skinner, Judge.
    This is a damage suit growing out of a collision accident. There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    On a rehearing the Court of Appeal reversed its former judgment and affirmed the judgment of the District Court.
    Judgment affirmed.
    Raymond Gauche, attorney for plaintiff and appellant.
    Lemle, Moreno & Lemle, attorneys for defendant and appellee.
   CLAIBORNE, J.

The law of this case is correctly set forth by plaintiff in his brief as follows:

“The cause of the accident, as the court said in the similar case of Taylor vs. Railway, 123 La. 768, 49 South. 518, was the failure to have the flagman stationed there to stop the train. The emergency would not have arisen had there been a flagman as required.”

But the facts of this case are- different and are against the plaintiff.

Although there was no flagman, eo nominee, there was an employee of the defendant who acted as flagman on this occasion.

- 1st. C. L. Tellbtte says he was Engine Foreman for the defendant. He was present at the accident. He saw _ plaintiff's truck coming over about forty feet from the crossing, and -he whistled and yelled at him, but he never stopped; he kept on crossing and the engine bells were ringing; his duties were to attend to the trains; he was at the crossing, watching it, it gives the best view of the crossing; plaintiff did not stop; he was coming 15 or 20 miles an hour; there is no permanent flagman at that station; he gave the signal to the engine to stop.

2nd. C. Kenny, engineer of the train, says he received the signal to stop, the hell was ringing.

3rd. J. V. Maloney, fireman on the locomotive, says he was ringing the bell.

4th. John A. Bock, driver for the American Railway Express, says: “When I saw the truck coming I jumped in the middle of the road and put up my hands and whistled; I knew that the fellow could not beat it across, he was going about 15 or 20 miles an hour and he never stopped or nothing, he came right on the track, and the train was coming and it hit him,” etc.; plaintiff must have been 35 or 40 feet from the track upon which the train was coming.

5th. E. J. Plaisant was switchman and engine foreman for defendant; he was riding on the rear end of the baggage car that hit the plaintiff; it was his business to ride there to see that the train did not “shove into anything”; he saw the plaintiff coming and he jumped off and hollered at him, and flagged Weinberger, the head man; the bell was ringing.

6th. William Taylor, a train porter on the defendant’s cars, was standing on the uptown river side of Franklin and Calliope; he saw the truck coming; it did not stop; he ran' out in the street and hollered; the man at the end of the car, Pleasant, hollered and threw up his hands; the bell was ringing; there were three or four hollering and Mr. Tellotte also.

7th. Oscar Celestine is a musician and is not connected with the defendant; he was standing at the corner of Franklin and Calliope with Taylor; he saw the accident and heard the flagman halloa; the bell was ringing.

The plaintiff testified that when he approached the track his wheels were barely turning; that he did not see the train coming upon him until it was too late either to go forward or to back; that; he did not hear any bell; that he did not see anyone around there; the switchman hollered when he was right up upon him; he sees well and hears well.

The only witness for plaintiff who saw the accident was George Simmons. He does not contradict the defendant’s witnesses.

The trial judge gave the following reasons for judgment:

“The preponderance of evidence is that the plaintiff did not stop, look and listen before attempting to cross the switchtraek on which a train was backing and this despite the signalling by the crew and yelling by independent persons not in the employ of the railroad. He contributed to the accident to an important extent and is therefore not entitled to damages. Suit dismissed.” Deikman vs. Morgan’s L. & T. R. & S. S. Co., 40 La. Ann. 787, 5 So. 76.

There is no doubt that if the seven witnesses who testified for the defendant speak the truth, then testimony establishes the fact that plaintiff brought the accident upon himself by his gross want of care and absolute negligence.

These witnesses were not impeached. The District Judge, who saw and heard them, believed them, and under the law and the jurisprudence, we must believe them also. The fact that the defendant itself may have been negligent does not invest the plaintiff with the right of action. McKernan vs. New Orleans Ry. & Light Co., 144 La. 999, 81 South. 601; Young vs. Louisiana Western R. Co., 153 La. 129, 95 South. 511; Jefferson Planting Co. vs. R. R., No. 7520 Ct. of App., 99 South. 203; Vernon vs. Illinois Cent. R. Co., 154 La. 370, 97 South. 493; Gannon vs. New Orleans Ry. & Light Co., 154 La. 436, 97 South. 601; Tucker vs. Illinois Cent. R. Co., 141 La. 1096, 76 South. 212; 95 U. S. 697 (702); Friedman vs. New Orleans Ry. & Light Co., et al., 153 La. 951, 96 South. 821; McCarthy vs. Whitney Iron Works Co., 48 La. Ann. 978, 20 South. 171.

The case of Tank vs. R. R., No. 9323, decided by this court was different as to the facts. The accident occurred at night and there was no evidence that the plaintiff was warned in time to stop.

Our previous decree must therefore be reversed and set aside and it is now ordered ithat the judgment appealed from be affirmed at the cost of plaintiff and appellant in both courts.


text:
    No. 9523.
    Orleans Appeal.
    LILLIAN GULLUNG, Appellant, v. DALGARN CONSTRUCTION CO.
    (November 17, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Bastards and Natural Children, Par. 18.
    An .adulterous child cannot be acknowledged for the purposes of inheritance nór for the benefits of the Employer’s Liability Act.
    (Civil Code, Art. 206 and 1488; Art. 20 of 1914, Sec. 8, Sub-Sec. 2 (k) and 2 (m) —Editor’s Note.)
    2, . Louisiana Digest, Laws, Par., 72.
    None but an “acknowledged illegitimate child” can reap the benefits of said act.
    3.Louisiana Digest, Master and Servant, Par. 160; Bastards and Natural Children, Par. 7.
    The incapacity of the parents of an adulterous child,, to acknowledge him does not cease by the dissolution of their marriage; but the incapacity exists as long as the law remains in force.
    (Civil Code, Art. 203, 204 — Editor’s Note.)
    Appeal from Civil District Court, Hon. Percy Saint, Judge.
    This is a suit under the Employer’s Liability Act No. 20 of 1914, p. 44. There was judgment for the defendant and the plaintiff has appealed.
    Judgment affirmed.
    George Piazza, attorney for plaintiff and appellant.
    John May, attorney for defendant and appellee.
   CLAIBORNE, J.

The facts of this case are as follows: The plaintiff, Lillian Gullung, loved, not wisely but too well, - one Ignatius Kruppenbaeher, the husband of Barbara Bendix; on January 16, 1915, a son was born unto her, who on the same day w'as baptized in the. Holy Trinity Church and given the name of William Kruppenbacher; that for several years prior thereto the said plaintiff had been cohabiting with Ignatius Kruppenbaeher as man and wife and' continued to do so up to the time of his death on November 29, 1922; that from the time of the birth of said child to the date of his death Ignatius Kruppenbaeher openly and publicly proclaimed and acknowledged the said child William Krup-. penbacher to be his own; and helped in his support; that on the day of his death Ignatius Kruppenbaeher was employed as a laborer by the defendant, the Dalgarn Construction Co., at $15 per week; that he was engaged on November 29, Í922, in carrying second-hand planks from one place to another; that in dropping a plank the end flew up and struck him in the neck severing the jugular vein and causing death within p,n hour afterwards. Petitioner, as the natural mother of her child and on his behalf, claims of the defendants thirty per cent of $15 a week for 300 weeks, or $1,350, and $100 for funeral expenses.

The defendant admitted that the deceased Ignatius Kruppenbacher was employed by it at the wages stated in the' petition, that on the day he met his death he was working within the scope of his employment, and that the child was baptized. But it denies all the other allegations of the petition and specially pleads:

. “10th. The allegations of Article 10 are denied and defendant says further that at the time of the conception and birth of the minor William Kruppenbacher the said Ignatius Kruppenbacher was married to Barbara Bendix, the marriage having taken place in January, 1909, a judgment of divorce being rendered on the petition of the 'said Barbara Bendix on June 27, 1922, and that by reason of such existing marriage, no legal acknowledgment would have in any event been possible.”

The reasons for judgment were as follows:

“This is a suit for compensation. The only question to be determined is whether or not plaintiff is entitled to compensation under the Act, as all the other allegations of the petition are admitted, the real test being the status of the minor child, William Kruppenbacher, as provided by the Compensation Act. The record shows that the said child was born to plaintiff, Lillian Gullung, and William Kruppenbacher, while Kruppenbacher was married to another woman, which made the child an adulterous bastard. Plaintiff claims that just prior to Kruppenbacher’s death, he had secured a divorce from his wife, which fact relieved the illegitimate son of his. status as an adulterous bastard. I do not agree with this contention for the reason that the child •was conceived and born at a time when the mother and father could not have contracted marriage, and under the plain Article of the Code, the child was an adulterous bastard,' and the mere fact that the 'father of the child subsequently secured a divorce from his wife, could not reihové the prohibition fixed by the Article of thé Code. Plaintiff further contends that the recognition of Kruppenbacher of this son after he had secured the divorce from his wife, is a sufficient legitimation of the boy- to relieve him of the status of adulterpus bastard. I do not agree with that contention, either, for the reason that the Article of the Code is very plain and specific. I do not think that the subsequent diVorce together with the recognition of the child could relieve him of the status of adulterous bastard; and the Workmen’s Compensation LaW gives compensation only to legitimate or legitimated children, and this precludes' plaintiff from recovering in this case. There should be judgment in. ;favor of defendant dismissing this suit, and.it is so ordered.”

It will be noted that the learnqd Judge speaks of “legitimation” and of “legitimated children”. This is obviously a careless expression, as there was no question óf “legitimating” involved in the case; it was a mere question of acknowledgment.” The two, while having some resemblance, are quite different and governed by different Articles.

The question at issue in this case is what “children are beneficiaries under the ‘Liability Act’, and is plaintiff’s child one of them?”

Sec. 8, sub-sec. 2 (k), of Act 243 of 1916, p. 516, reads as follows:

Sec. 8, sub-sec. 2 (k). “Compensation shall be payable under this schedule to or on account of any child, or brother, .or sister, or other dependant member of the family not otherwise specifically provided for, only if and while such child, brother,“sister or other dependent member of the'’family not otherwise specifically provided"' for is under' the age of eighteen years (unless such child, brother, sister, or other dependent member of the family is mentally or physically incapacitated from earning a living). * * * The term ‘child’ and ‘bhildren’ shall cover only legitimate children or acknowledged illegitimate children, etci’?

Sec. 8, sub-sec. 2 (m). The contention of the defendant is that the term “acknowledged illegitimate children” does not mean children who have been merely recognized, admitted and treated as children by the party injured; but that these “children” must have been “acknowledged” in the manner provided by the Civil Code under Articles 202 to 213 and that such “acknowledgment” cannot be made in any manner “in favor of children whose parents were incapable of contracting marriage at the time of conception” as provided by Article C. C. 204.

This Article reads as follows:

“Suc-h acknowledgment shall not be made in favor of children whose parents were incapable of contracting marriage at the time of conception.”

In the case of the Succession of Fletcher, 11 La. Ann. 59, the Supreme Court, in passing upon the claims of an adulterous daughter who claimed the succession of her father as heir for having been acknowledged by him as his daughter in a notarial act, said that the act was a nullity, “made in contravention of a prohibitory law established in the interest of public morals.” If a notarial act of acknowledgment is a nullity, how much more null and of no effect are mere declarations and other acts?

This decision was quoted approvingly in Succession of Lacost, 142 La. 689; 77 So. 497.

In Succession of Gravier, 125 La. 735; 51 So. 704, the Court said in speaking of white and colored parents: “Had they attempted to acknowledge these children, the act of acknowledgment would have been a nullity beyond all question, etc.” See also Compton vs. Prescott, 12 Rob. 71; City of New Orleans vs. Hall, 21 La. Ann. 437.

The meaningmf the wprd “acknowledged” i as applicable to illegitimate heirs, was ap-' plied- to illegitimate parents claiming compensation under the Employer’s Liability Act. This is equivalent to saying that illegitimate relations who cannot inherit- cannot claim under said Act. In Perkins vs. Brownell, 147 La. 337, the Court said:

“Plaintiffs sue under the Employer’s Liability Act of 1914 in damages as heirs of their, child Who was killed in the course of his employment at defendants’ sawmill. The defense is that the child was illegitimate, and had never been acknowledged by either of the plaintiffs. Article 203 C. C. provides:
“ ‘The acknowledgment of an illegitimate child shall be made by a declaration executed before a Notary Public, in presence' of two witnesses, by the father and mother, or either of them, whenever it shall not have been made in the registering of the birth or baptism of such child.’
“Defendant contends that the modes of .acknowledgment here specified are exclusive; and plaintiff contends that they are not but that .a baptism of the child in the presence of the parents as their child, and a declaration of the parents' of the federal census, taken of their parentage of the child, is the equivalent of a ‘registering of the birth or baptism’ of the child. For so holding this Court would have, not to interpret, but to amend, the said Article by recognizing an additional mode of acknowledgment.”

, The Court denied that acknowledgment .and. rejected - plaintiff’s claim.

We therefore conclude that the father and mother of William Kruppenbacher having been, in the language of Article 204 (222) “incapable of contracting marriage at the time of his conception had no right to ‘acknowledge’ their child within the meaning of Article 202 (220) either for the purposes of inheritance or to claim the benefits of the Employer’s Liability Act”..

.But the plaintiff argues that while it is true that Article C. C. 204 prohibits the acknowledgment of children whose parents were incapable of contracting marriage at the time of conception, the moment the incapacity of the parents to marry ceases, from that moment they could legally acknowledge their illegitimate offspring; and that from the time Ignatius Kruppenbacher Was divorced from his wife Barbara Bendix, he acquired the capacity to marry Lillian Gullung, and as a consequence he could acknowledge their son and that he did so from that time up to the date of his death.

In support of this proposition he relies upon the decision in the Succession of Melame Hebert, 33 La. Ann. 1099. But that case was entirely different from the one under consideration.

Melasie Hebert was a white woman, deaf and dumb. In 1854 she had a child from a colored man. In 1879 she died. The Court held that the child had been acknowledged by its mother and the Court recognized it as her heir on two grounds: 1st, that at the time of the conception of the child the Civil Code, Article 222, read as follows: “Such acknowledgment shall not be made in favor of the children produced by an incestuous or adulterous connec tion.”

It contained, therefore, no prohibition against the acknowledgment by a White woman of her offspring from a man of color, although the marriage between them was forbidden.

But the same Article 222, reproduced in the Code of 1870 under the Article 204, contained a broader prohibition as follows:

Art. 204 (2.22). “Such acknowledgment shall not be made in favor of children whose parents were incapable of contracting marriage at the time of conception.”

The Court said on p. 1107:

“There can be no doubt that, had Article 221 of the Code of 1825 read as does Article 204 of the R. C. C. (Code of 1870) quite a different question would have presented itself.”

The second reason given by the Court was that the last paragraph of Article 221 of the Code of 1825 providing that “No other proof of acknowledgment shall be admitted in favor of children of color” was expressly eliminated from the Revised Code of 1870, in which the first part of Article 221 was embodied as Article 203. The consequence of the repeal had been to confer on children of color, whatever be their descent, the same rights to prove their acknowledgment, as have always been enjoyed by children wholly of white parentage.

But in the case before us the Article 222 of the Code of 1825 has not been repealed; on the contrary its provisions have been made more drastic and sweeping by the revision of the Article in 1870 under No. 204 which prohibits the acknowledgment not only of incestuous and adulterous children, but of “all children whose parents were incapable of contracting marriage at the time of conception”.

That Article was law at the time of the conception of the child and up to the time of the death of the father. So that, under Article 204, if another Melanie Hebert should have issue of a man of color, she could not acknowledge her child in any manner whatever for the purposes of inheritance, unless the Article itself was repealed.

Article 222 of the Code of 1825 was a law of public order to -insure the sanctity of the marriage state and to protect it from invasion, by taking away from the guilty party all hope of condonation. “Lasciate ogni speranza, voi ch’entrate.”

The French commentators of C. N. 335 say, to prevent the scandal accompanying such investigations. 5 Demol. S 563, 582-587, 2 Marc. p. 54, S. 62.

.The industrious attorney for the plaintiff quotes a number of eases from other States where illegitimate children were adjudged entitled to the benefits of the Employers’ Liability Act. But it does not appear that on those States the Liability Act contained the restrictive words “acknowledgment illegitimate children”, nor a judicial interpretation of the word “acknowledge” as in this State.

The writer of this opinion, pursuant to the spirit of the Employer’s Liability Act, was inclined to believe that the Act might be considered as a separate and independent legislation, not to be interpreted by the Civil Code, and that the words “acknowledged illegitimate children” might be construed simply as “recognized” or established children entitled to alimony, C. C. 920 (914); Bennett vs. Cane, 18 La. Ann. 590; or in default of such construction that the “adulterous child” might be treated as a “dependent”. But the decision in the Perkins case, 147 La. 337, does not permit him to entertain the possibility of such a construction.


text:
    No. 9634.
    Orleans Appeal.
    SECRETARY OF WAR, Operating Mississippi-Warrior Service, Appellant, v. T. O. J. COLLINS, Etc.
    (November 17, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Obligations, Par. 44.
    A threat to exercise a legal right does not amount to duress justifying the rescission of an agreement.
    (Civil Code, Art. 1856 — Editor’s Note.)
    Appeal from First City Court, Hon. Leon L. Labatt, Judge.
    This is a suit for a balance due.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed.
    Dart, Kernan and Dart, Louis C. Guidry, attorneys for plaintiff and appellant.
    Walter G. Weidig, attorney for defendant and appellee.
   WESTERFIELD, J.

A controversy arose between the plaintiff and defendant as to defendant’s liability to plaintiff in the sum of $237.63 under circumstances which -in the view we take of the case it is unnecessary to discuss.

The defendant, after consulting with bis attorney, wrote the plaintiff the following letter:

“November 22, 1921.
Mr. J. S. Powell, Auditor,
Mississippi-Warrior Service,
321 Custom House Bldg.,
New Orleans, La.
Dear Mr. Powell:
Confirming conversation with you of Saturday, regarding claim of $237.63 for nine (9) bales of rags, I wish to state that I will pay this claim to your Company at the rate of’ $25.00 a week, which $25.00 is to be deducted from my voucher every week. ,
Also your company is to give me an assignment of all of their rights in the said claim against the Texas Transport & Terminal Company and to assist me in every manner possible to make out my claim against the said T'exas Transport & Terminal Company, and if necessary, that your Company would turn over to me your complete file for my information and use if necessary.
Yours very truly,
(Signed) T. O. J. COLLINS,
Collins Transfer Co.
A/C MR. W. H. COOK,
Bienville Street Walk,
New Orleans, La.

and subsequently paid to plaintiff five weekly installments or a total of $125.00 in execution of the agreement embodied in the letter. This suit is for the balance of $112.63 which defendant agreed to pay.

Articles 3078 and 3079, Revised Civil Code, read as follows:

“Art. 3078. Compromise in Bes Adjudicata: Error: Lesion. Transactions have, between the interested parties, a force equal to the authority of things adjudged. They cannot be attacked on account of any error in law or any lesion. But an error in calculation may always be corrected.”
“Art. 3079. Rescission: Grounds for. A transaction may be rescinded notwithstanding, whenever there exists an error in the person or on the matter in dispute. It may likewise be rescinded in the cases where there exists fraud or violence.”

The contention in this case is that the compromise as set forth in the letter was agreed to and the letter signed under duress, the duress consisting of a threat on the part of plaintiff to withhold certain sums of money due defendant. This cpntention is, we think, without merit. See R. C. C. Articles 1851 and 1856.

For the reasons assigned we are unable to agree with our brother of the First City Court and the judgment appealed from must be reversed.

It is now ordered that there be judgment in favor of plaintiff herein and against defendant in the full sum of $112.63 with legal interest thereon from judicial demand until paid and all costs.


text:
    No. 9713.
    Orleans Appeal.
    MRS. MAMIE BOURGH v. MRS. GEORGIA E. HESTER, Appellant.
    (November 17, 1924, Opinion and Decree.)
    (January 5, 1925, Rehearing Refused.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Appeal, Par. 484.
    No days¡ of- grace are allowable upon an extended .return day. . - .
    2. Louisiana Digest, Appeal, Par. 483, 484.
    Since the adoption of Act 92 of 1900, in Parishes other than Orleans, and since the adoption of Act 106 of 1908, throughout the State, all transcripts of appeal must be lodged on or before the return day or within three calendar days thereafter if no extension has been granted whether the return day be in vacation or term time, except by consent of parties.
    (Code of Practice. Art. 883, modified by Act No. 106 of 1908 — -Editor’s Note.)
    Appeal from verdict and judgment of the Civil District Court, Parish of Orleans, Division “G”.
    Appeal dismissed.
    Eugene S. Hayford, attorney for defendant and appellant.
    Wiess, Yarrut & Stich, attorneys for plaintiff and appellee.
   WESTERFIELD, J.

Plaintiff and appellee move -to dismiss this appeal upon the ground that the transcript was filed too late.

The original return day, June 23, 1924, was upon timely application extended to July 23, 1924. The transcript was not filed until July 26, 1924, three days thereafter. No days of grace are allowable upon an extended return day. Sampite vs. Desloucha, 135 La. 330.

Appellant contends that where, as in this case, the appeal is made returnable to a day not in term time, the transcript may be filed on the first day of the next ensuing term, citing Hoke vs. Lee, 104 La. 124, 28 South. 922. The law. has been changed since Hoke vs. Lee and transcripts must now be filed and appeals lodged in this court within three days of the original return day, or on or before the date of extended return day, which cannot be less than fifteen or more than sixty days from the-, date of the order granting the appeal, whether the return day be in term time or vacation. We can add nothing to what we said on this subject in Laiche et al. vs. Martin, XI Orl. App. 96, affirmed in Laiche vs. Martin, 135 La. 798, 66 So. 226.

For the reasons assigned, the appeal herein taken is dismissed.


author: BELL, J.

text:
    No. 9766.
    Orleans Appeal.
    REIMANN MANUFACTURING CO., LTD., v. A. PUCCIO, Jr., Appellant.
    (November 17, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Appeal, Par. 625; Evidence, Par. 53, 59.
    When the payee of a check sues the maker, who admits its execution and the consideration for which it was given, and who fails to prove as the only defense to the suit that the payee agreed to withhold presentation of the check for payment until the happening of a certain event, judgment in favor of payee will be affirmed.
    Appeal from First City Court for the City of 'New Orleans, Section “B”, Hon. Val J. Stentz, Judge.
    This is a suit for collection of check-judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    Clancy A. Latham, attorney for plaintiff and appellee.
    J. L. Brent Bodfish, attorney for defendant and appellant.
   BELL, J.

This is a suit on a claim for $114.00, ‘ with interest, etc., represented by a check signed by defendant in favor of plaintiff and alleged in the petition to have been given for valuable consideration.

The defendant excepts to the petition, pleading vagueness .and that the petition discloses no cause of action.

Answering to the merits of the suit, defendant admits the giving of the check and pleads no defense to the indebtedness sued upon, except that it was given in payment of a judgment obtained by plaintiff against defendant’s father. Defendant’s purpose in assuming this debt or attempting to discharge the same, was that certain real estate previously owned by his father and transferred by the father to a third party, had in turn been bought by defendant from the third party, and it was necessary, in order to obtain a clear title, to discharge the judgment against the father recorded against the property. It is alleged in the answer that the check was given to plaintiff with the instruction that plaintiff should hold it until defendant could ascertain the truth or not of the existence of the outstanding lien.

We find from the record a preponderance of evidence to the effect that the check was not given by defendant with any such condition, and that it was defendant’s expressed purpose to pay the debt of his father and to relieve the' property of the lien in question. It is therefore, plain that a valid consideration for the indebtedness existed, and we find from the record no valid defense upon which the liability therefor can be avoided.

The exceptions ‘ filed in this case were properly overruled, and there is no' error in the judgment on the merits.

It is, therefore, ordered that the judgment appealed from be and the same is hereby affirmed, at defendant’s costs in both courts.


text:
    No. 9773.
    Orleans Appeal.
    UTLEY PAINT CO., INC., v. RICHARD MACKENROTH, ET AL., Appellant.
    (November 17, 1924, Opinion and Decree.)
    (December 1, 1924, Rehearing Refused.)

      (Syllabus by the Court.)

    I. Louisiana Digest, Appeal, Par. 594, 598.
    The judgment of a trial court upon a question of fact is presumptively correct.
    Appeal from First City Court, Hon. Yal J. Stentz, Judge.
    This is a suit for the price of a quantity of paint sold the defendant. Judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    Haspel, Sanders, Baldwin & Viosca, attorneys for' plaintiff and appellee.
    Mrs. W. -Pelee, H. M. Ansley, attorneys for defendant and appellant.
   WESTERFIELD, J.

This is a suit for $130.92, the price of a quantity of paint sold the defendant Mackenroth and alleged to have • been used in painting certain houses belonging‘to Mrs. Wilhelmina Pelke, the co-defendant. Mackenroth had a contract with Mrs. Pelke to paint her houses, which he did not execute, having been prevented from doing so by Mrs. Pelke because of her dissatisfaction with his work. He had done some work, however, and used some paint, which he purchased from plaintiff. The liability of Mrs. Pelke as owner, she having neglected to comply with the provisions of Act 139 of 1922 relative to recording her contract and obtaining bond, is not disputed. She contends, however, that there is no satisfactory proof in the record to show that any of plaintiff’s paint was actually used on her property.

There was judgment below as prayed for against Mackenroth and against Mrs. Wilhelmina Pelke in the sum of Sixty-one and 50/100 ($61.50) Dollars, in solido, with recognition of a lien and privilege upon her property.

Mrs. Pelke has appealed and plaintiff has answered asking for an increase of the judgment against Mrs. Pelke to $130.92, the amount sued for.

There can be no question of the defendant Mackenroth having bought the materials for the price of which this suit is brought. The only thing we have to consider is whether they were used on the property of his co-defendant. It seems that Mackenroth was painting the building next door to Mrs. Pelke’s place at the same time and was mixing his paints in a room in the house next door for both jobs. Under the circumstances it was difficult to say how much paint was used upon each of the houses' he was painting. The trial court reached the conclusion that only sixty dollars’ worth of the $130.92 sued for was used on Mrs. Pelke’s house. This conclusion was doubtless based upon the estimate given by a witness sworn in Mrs. Pelke’s behalf. Plaintiff’s witnesses were unable to give definite statements as, to the amount of .paint used and were unwilling to swear that the entire amount af paint for the price of which this suit is brought was placed upon Mrs. Pelke’s property. It is a question of fact in the solution of which we are unable to say the trial court-erred.

For the reasons assigned the judgment appealed from is affirmed.


text:
    No. 9774.
    Orleans Appeal.
    THEODORE BRODERICK v. LANE COTTON MILLS, Appellant.
    (November 17, 1924, Opinion and Decree.)
    (December 1, 1924, Rehearing Refused.)

      (Syllabus by the Gotirt.)

    1. Louisiana Digest, Automobiles, Par. 4 d.
    The driver of an automobile who violates the Traffic Ordinance and in consequence thereof causes injury to another is liable in damages. .
    (Civil Code, Art. 2315 — Editor’s Note.)
    Appeal from First City Court, Hon.. Henry Renshaw, Judge.
    This is a damage suit resulting from a collision of automobiles. Judgment for plaintiff. Defendant appealed.
    Judgment affirmed.
    R. E.- Milling, Jr., attorneys for plaintiff and appellee.
    Eraste Vidrine, attorney for defendant and appellant.
   CLAIBORNE, J.

This is a damage suit resulting from a collision of automobiles.

The plaintiff alleges that he was driving his automobile out Marengo Street in the direction of the lake; that, upon approaching Prytania Street, there was a street car going downtown stopped at the lower side of Marengo Street for the purpose of taking in passengers; that back of said street car there was a wagon also stopped to allow the passengers to get on; that plaintiff brought his auto to a full stop until the street car and wagon had moved on; that when they had passed, plaintiff proceeded to cross the river side of Prytania ' Street and started to turn up Prytania Street on the woods side; that an automobile truck owned and operated by the defendant, proceeding down Prytania Street in the direction of Canal Street, suddenly swerved across Prytania Street in the path of plaintiff’s auto and struck the front of it, causing damages to the amount of $117.95; that the accident was caused by the negligence of defendant’s driver in attempting to drive on the wrong side of 'the street in an effort to pass the wagon and street car; that the plaintiff’s auto was laid up for repairs for one week and that his auto was used by him in his business and was worth to him $10 a day while he was deprived of its use. He prays for judgment for $187.95.

The defendant denies all the allegations of the petition. It admits the collision but avers that it had the right of way down Prytania Street under Section 7 of Article I of the Traffic Ordinance No. 7490 C. C. S., adopted August 7, 1923, and avers that there was contributory negligence on the part of the plaintiff, who violated Section 4 of Article I of said ordinance.

There was judgment in favor of plaintiff for $117.95 and defendant has appealed.

Sections 4 and 7 of Article I of Traffic Ordinance No. 7490 read as follows:

“4. Turning Corners. (b) A vehicle turning into another street to the left shall turn around the intersection of the center lines of the two streets.”
“7. Right of Way. (a) Vehicles traveling on the following streets have the right of way approaching on intersecting streets, namely: All streets with street car tracks. The right of way given applies only where two vehicles approaching intersecting streets arrive at the intersection at approximately the same time, and does not authorize the vehicle traveling on the right of way streets to disregard the rights of vehicles which have already entered the intersection from an intersecting street.”

Only three witnesses testified in the case, the plaintiff and his wife and the defendant’s chauffeur.

The plaintiff substantiates the pivotal allegations of his petition, namely: that he had crossed from Marengo Street into Prytania going uptown; that he had driven beyond Marengo Street, and had reached about ten feet up the woods side of Prytania Street in a diagonal direction, when the defendants’ truck, driving down Prytania Street on the woods or left side track ran into him in front and injured his auto.

Article I, Sec. 1 of the above ordinance provides:

“Keep to the Right. A vehicle, except when passing a vehicle going in the same direction, shall keep to the right and as near the righthand curb as possible.”
“Sec. 3 (e). A vehicle approaching another vehicle coming from the opposite direction .shall pass it to the right.”

The defendant’s chauffeur, on the other hand, swears that he was driving at a slow speed down Prytania Street on'the right or river side track; that when he had reached the intersection of Prytania and Marengo Streets, and while in the intersection he swerved to the left to avoid the plaintiff, who then ran into him.

But the plaintiff’s wife testified that they live on Marengo Street near Prytania; that on the morning of the accident she watched her husband drive away from home; that she followed him with her eyes until he had turned up into Prytania Street when she saw him no more.

On the other hand defendant’s chauffeur says that at the moment of the collision “there was a colored fellow in the truck” with him.

This colored fellow was not produced as a witness.

The Judge of the trial court saw and heard the witnesses, and decided in favor of the plaintiff. We cannot say that he erred. 8622 and 9238, Ct. App.


text:
    No. 9802.
    Orleans Appeal.
    SOPHIE CARTER, ETC., v. MOSE CAMBRICE, ET AL.
    (November 17, 1924, Opinion and Decree.)
    (December 15, 1924, Rehearing Refused.)
    (February 3, 1925, Decree Supreme Court. Writ of Certiorari and Review Refused.)

      (Syllabus by. the Gourt.)

    1. Louisiana Digest, Laws, Par. 68, 69, 70.
    In order to justify the proceedings authorized by Act 49 of 1918, p. 71, the relation of landlord and tenant must exist between the plaintiff and the defendant.-
    2. Louisiana Digest, Executors and Administrators, Par. 9.
    The Court of the Parish in which the deceased had his domicile at the time of his death has exclusive jurisdiction of his succession. The appointment, of an Administrator by a Court in another Parish is a nullity which may be averred collaterally as a defense at any time under all circumstances by any one in interest.
    (Code of Practice, Art. 929; Civil Code, Art. 935 — Editor’s Note'.)
    Appeal from Civil District Court, Hon. E. K. Skinner, Judge.
    Judgment maintaining the exception of no cause of action and dismissing plaintiff’s demand. Plaintiff appealed.
    •Judgment affirmed.
    Chas. J. Mundy, attorney for plaintiff and appellant.
    W. J. Hennessey, attorney for defendant and appellee.
   CLAIBORNE, J.

On November 28, 1923, Sophie Carter, of the Parish of Terrebonne, opened the succession of Ethel Burns, wife of Gilbert ■ C. Fleming, in the City of New Orleans under No. 150,110. She alleged that her niece Ethel Burns, was married in New Orleans to Gilbert C. Fleming on October 3, 1911; that he died some time after, leaving one son, issue of his marriage, William Gilbert Fleming, born September 17, 1912; that Ethel Burns Fleming, her said niece, died in Thibodaux on November 8, 1923, intestate, leaving one legitimate child, William Gilbert Fleming, above mentioned, only issue of her marriage with her deceased husband Gilbert C. Fleming, and one illegitimate child named Cornelius Eugene Watldns, born October 23, 1922, now in the care of petitioner; that the said Ethel Burns Fleming left a separate property in Algiers worth about $1,500, $25 in bank, and household furniture worth about $75; that the deceased left debts, •some of which consist of funeral expenses and a doctor’s bill; and petitioner prayed to be appointed administratrix.

Affidavits, annexed to the petition, attest the truth of all the allegations of the petition and further state that the deceased “was' buried in Algiers from her home at 832 Yallette Street”.

Rosetta Fleming, wife of Moses Cambrice, and Samuel Fleming, the sister and brother of Gilbert C. Fleming, opposed the application of Sophie Carter to be appointed administratrix “on the ground that no administration is necessary because there are no debts and if there are debts that petitioners are willing and ready to pay whatever debts are due by the deceased or by his succession and that said application should be dismissed”; they further allege that if the Court should decide that an administration is necessary that they are entitled to be appointed in preference to the applicant because they are residents of this Parish and ■they deny that the applicant is related to the deceased; and they' aver that deceased died' in Thibodaux while there on a visit or wdrking”.

Sophie Carter filed an answer to this opposition in which she denied all the allegations of the opponents entitling them to a preference.

On December 28, 1923, Rosetta Fleming, wife of Moses Cambrice, filed a petition in which she alleged that the deceased was domiciled in the City of New Orleans; that the minor William Gilbert Fleming was without a tutor; she prayed for an inventory and for the, convocation of a family meeting on behalf of said minor to recommend some person or bank as tutor for said minor, and an undertutor. An order was rendered accordingly.

An inventory was taken comprising the above mentioned property, 832 Vallette Street, appraised at $1,200, and some cash and household furniture at $37.25.

A family meeting was convoked and recommended the Algiers Trust and Savings Bank as tutor for the property of the minor, and Rosetta Fleming, wife of Moses Cambrice, as tutrix to his person, and Samuel Fleming as under tutor. ' They were accordingly appointed and sworn on January 18, 1924. •

On January 29, 1924, the Algiers Trust and Savings Bank also filed an opposition to the application of Sophie Carter to be appointed Administratrix of this succession “on the ground that no administration is necessary because there are no debts, as all of the known debts due and owing by the deceased for funeral and other expenses have been paid”; but if there was any neceásity for any administration that “opponent in its capacity as dative tutor of .said minor should administer this estate”.

On March 21, 1924, on motion of the attorney for Sophie Carter,, the following order was rendered:

..“It is ordered by'the Court that all proceedings filed by Sophie Carter in this matter, be and the same are hereby dismissed at her cost.”

But while these proceedings were pursuing the even tenor of their ways, the applicant for Administration, “Sophie Carter”, had betaken herself to other fields more free of opponents.

On June 18, 1924, she filed a suit in the Civil District Court for the Parish of Orleans under No. 153,155, entitled “Sophie Carter, Administratrix of. the Succession of Ethel Burns Fleming, deceased, vs. Moses Cambrice and Rosetta Cambrice, which is the present suit, 'in which she alleged that she was the duly qualified administratrix of the Succession of Ethel Burns Fleming, having been appointed by the 20th Judicial District Court for the Parish of Lafourche, and letters as such issued to her on March 22,. 1924; that the defendants, Mose Cambrice and Rosetta Fleming Cambrice, during the life of Ethel Burns Fleming, were occupying the premises No. 832 Yallette Street as tenants; that said defendants have paid no rent since November 8, 1923, that demand has been made upon said defendants to vacate said premises which they have refused to do; that the fair rental value of said property is not less than $20 per month; that “it is necessary for petitioner to secure possession of said premises in order that some revenue may be secured from said property wherewith debts may be paid”; that the defendants who were the tenants of the deceased, became the tenants of petitioner as administratrix under appointment of the District Court for the Parish of Lafourche, which this Court must recognize until the appointment is set aside. She prayed for a rule upon the defendants for possession and for judgment for $140.00. The rule issued as prayed for.-

To this rule the defendants filed the following exceptions: 1st, that it disclosed no cause or right of action; 2nd, that plaintiff is estopped from prosecuting this suit because the plaintiff cannot be the administratrix, as she withdrew her application to be appointed as such by the Court for the Parish of Orleans; 3rd, that the Algiers Trust and Savings Bank was duly appointed tutor of the minor William Gilbert Fleming, and the said Bank in said capacity is now administering the succession and collecting the rents of the property No. 832 Vallette Street, and the said Bank in said capacity rented said property to defendants who have paid the rent to it which alone had authority to rent said property and collect the rents, and 4th, that the deceased was domiciled in this Parish and the Courts thereof were alone vested with jurisdiction of her succession.

There was judgment maintaining the exception of no cause or right of action and dismissing plaintiff’s demand.

We are of opinion that the judgment is correct for the following reasons:

1st. As far as the demand for possession of the premises is concerned the plaintiff derives his right to proceed by rule exclusively upon Act 49 of 1918, p. 71. In order to proceed under said Act, the relation of landlord and tenant must exist between the plaintiff and the defendant. It is evident that no such relation existed in this case. The Algiers Bank was appointed tutor in January, 1924, and as such administered the succession and its property and collected the rents due to it. The plaintiff was appointed only on March 22, 1924. At that time the Bank was in possession of the property of the succession, and the defendants in this case held possession only for account of the Bank. It is evident, therefore, that the defendants could not be sued by this plaintiff in a possessory action or in an ejectment suit under the Act above quoted.

As far as the money demand is concerned it was filed only in June, 1924. The Bank had been in possession and the defendants had been tenants of the Bank for more than six months, and had paid their rents to it.

2nd. It appears from the record in this case by affidavits sworn to by the plaintiff in this "case and by several witnesses and by other facts of the case, that the deceased, Ethel Burns Fleming, was domiciled at the City of New Orleans at the time of her death, and it is nowhere contradicted. Article C. C. 935 (929) provides:

“The place of the opening of successions is fixed as follows: In the parish where the deceased resided if he had a fixed domicile or residence in the State. In the Parish where the deceased owned immovable property, if he had neither domicile nor residence in this State, or in the Parish in which it appears by the inventory, his principal effects are if he has effects in different parishes. In the Parish in which the deceased had died, if he had no fixed residence, nor any immovable effects within the State, at the time of his death.” C. P. 929.

In the Succession of Williamson, 3 La. Ann. 261, the Court said:

“The Court of the Parish in which the deceased had his domicile at the time of his death has exclusive jurisdiction of his succession. The appointment of an administrator by a Court in another Parish is a nullity." Saul vs. His Creditors, 5 M. 571.
“The Probate Court of Madison Parish, where the deceased had his domicile at the time of his death, had exclusive jurisdiction, of his succession. Everything done in that succession in the Parish of Tensas was therefore null and void. C. C. 935, C. P. 929; Succession of Williamson, 3 La. Ann. 261; Miltenberger vs. Knox, 21 La. Ann. 399; Clemens vs. Comfort, 26 La. Ann. 269. Especially is this true as against a party who as in this ease, has himself opened a succession in one Parish, and afterwards without notice proceeds in another Parish to secure the orders he desires.
“It, would be subversive of all propriety of legal proceedings if she could, by a flank-movement of this sort, conclude the right of the appellants and confirm irrevocably her title to the land.” Scott vs. The World, 26 La. Ann. 285.
“The opening of a succession and the appointment of an Administrator in a Parish where the deceased never has resided, nor owns property therein at the time of his death, are absolute nullities; and any and all proceedings had and all judgments rendered against the succession are void. Code of Practice, Art. 929; Succession of Williamson, 3 La. Ann. 261, and any creditor or party interested may oppose any process of Court resulting from them which may affect their interests.” Miltenberger vs. Knox, 21 La. Ann. 399.
“Where a succession has been opened in one Parish the presumption is that the Court had jurisdiction until it is conclusively shown that it had not.” Gary vs. Sandoz, 16 La. 11.

In Alter v. Pickett, 24 La. Ann. 515, the Supreme Court said:

“It is a well settled rule of jurisprudence founded upon justice and common sense, that the absolute nullity of a judgment may be invoked before the tribunal where an attempt is made to enforce it, and by any person whose interests may be affected by the judgment. Citing 1 N. S. 8; Quine vs. Mayes, 2 Rob. 510; Williams vs. Clark, 11 La. Ann. 761; Jas. A. Simpson vs. J. J. Hope, 23 La. Ann. 557. Adopted in Andrews vs. Sheehy, 122 La. 470, 47 South. 771. See also Piernas vs. Milliet, 10 La. Ann. 286; Michie vs. Armat, 15 La. Ann. 226; Alter vs. Pickett, 24 La. Ann. 515; Bush & Goode vs. Ewing Chapman-John B. Murison, 24 La. Ann. 277; Edwards vs. Whited, 29 La. Ann. 647.”

In Flanagan vs. Land Co., 145 La. 843, the Court said on p. 848:

“The first question to be disposed of herein is that of jurisdiction in the Court below; for, if it was without jurisdiction to appoint the plaintiff administrator in the first instance, or later as dative testamentary executor, the entire proceedings by which he attempted to acquire the capacity to represent the estate of deceased were null, and may be attacked at any time and under all circumstances. 11 R. C. L. 74 et seq. Vo. Extors. and Admtors.”

The judgment is therefore affirmed.


text:
    No. 9846.
    Orleans Appeal.
    ESTATE OF L. R. SASSINOT v. A. S. DEMOURELLE, Appellant.
    (November 17, 1924, Opinion and Decree.)

      (Syllabus by the Court.)

    1. Louisiana Digest, Appeal, Par. 49.
    When a third person enjoins the seizure and sale of a. claim reduced to final judgment in a suit other than that in which the injunction has issued, it is the value of the seized judgment at time of the seizure, which determines the appellate jurisdiction over questions raised on appeal, and not the .litigated amounts involved in either the suit under which the seizure was made or the suit from which the seized judgment arose.
    2. Louisiana Digest, Laws, Par. 16, 17.
    That portion of Act 128 of 1921 which relates to the practice in the City Courts of New Orleans, is not a local or special legislation withi-n the purview of Article IV, Section 4, of the Constitution of 1921, and, moreover, the statute having been enacted in response to express power or authority conferred by Article VII, Section 27, of the Constitution, it is not amenable to the restrictions imposed by Article IV, Section 4.
    3. Louisiana Digest, Laws, Par. 27, 43.
    Nor is this a statute violative of Article III, Section 16, of the Constitution of 1921, which provides that every law shall embrace but one object and that shall be expressed in its title. If a part of the statute be broader than the single object expressed in its title, as to that object at least, it is constitutional.
    Appeal from the First City Court of New Orleans, Division “A”, Hon. Leon L. Labatt, Judge.
    ON MOTION TO DISMISS APPEAL
    Judgment for plaintiff. Defendant appealed.
    Appeal dismissed.
    F. F. Tessier, attorney for plaintiff and appellee.
    J. Olin Chamberlain, attorney for defendant and appellant.
   STATEMENT OF FACTS.

BELL, J.

This case is before the court on appellee’s timely motions to dismiss the appeal herein taken for the following reasons:

1. That said appeal has been taken more than ten days from the rendition of the judgment, in contravention to the provisions of Act 128 of 1921.

2. That appellant has acquiesced in the judgment from which he has appealed devolutively.

If the first of these grounds for dismissal be maintained, the second may be disregarded.

The intricate facts pertaining to the issues raised under the motions to dismiss we find to be as follows:

The Estate of I,. R. Sassinot sued, in this present proceeding, A. S. Demourelle, on a note for One Hundred and Ninety-five and 80/100 Dollars ($195.80), with interest and attorney’s fees. After service upon Demourelle, judgment was obtained against him by default. In executing this judgment, Sassinot caused to be seized all of the right, title and interest of Demourelle in the suit entitled Demourelle vs. Gussoni, No. 93,018 of the docket of the First City Court of New Orleans. On May 21, 1924, J. Olin Chamberlain, appellant in the proceeding now .before us,, claiming to own an. assignment from Demourelle of the latter’s rights in said judgment, prayed for and obtained an injunction stopping the sale of the judgment seized.

On May 23, 1924, the Estate of Sassinot, in answering the petition for injunction, pleaded certain reasons for dismissal of the. injunction, which need not be here noted. On the same day, by the same party, a motion by rule for recall of the injunction was filed upon the following grounds:

1. That the surety on the injunction bond was insufficient.

2. That the petition for injunction disclosed no right or cause of action.

Mover accordingly prayed to recover damages as for attorney’s fees to the extent of twenty per cent, on the value of the judgment in the proceedings under which execution had issued, to-wit: twenty per cent, on $235.01, or the sum of $47.00.

The first of the above exceptions does not appear by the record to have been passed upon by the trial court.

On June 11, 1924, the judgment now appealed from, and of which Chamberlain seems not to have been notified, was rendered as follows:

“JUDGMENT ON RULE TO DISSOLVE INJUNCTION.
“This matter' having been argued, submitted and taken under advisement by the court, for the reasons this day orally assigned,
“It is ordered, adjudged and decreed that the rule filed herein by the Estate of Louis R. Sassinot to dissolve the injunction herein issued at the instance of J. Olin Chamberlain, be and it is hereby made absolute, and accordingly said injunction be and it is hereby dissolved, at the costs of the said J. Olin Chamberlain, with twenty per cent, damages on $235.01, or Forty-seven Dollars ($47.00), in solido, against J. Olin Chamberlain and Clancy A. Latham, surety on the injunction bond, in solido.”

On June 18, 1924, another judgment on the second of the above exceptions was rendered as follows:

“The exception of no cause of action submitted to the court and taken under advisement. The court consider the exception to be well taken.
“It is ordered, adjudged and decreed that the exception of no cause of action filed by the defendant herein, Estate of Louis R. Sassinot, on May 23, 1924, be maintained, dismissing the suit of J. Olin Chamberlain as of non-suit. J. Olin Chamberlain to pay costs of suit.”

On September 23, 1924, Chamberlain filed a new petition for injunction on the same allegations as those set out in the first injunction proceeding and on additional allegations.

On September 26, 1924, a devolutive appeal from the judgment of June 11, 1924, was granted, on motion of J. Olin Chamberlain, returnable to this court on October 6, 1924. '

Appellee, Estate of L. R. Sassinot, has moved the dismissal of this appeal in two separate motions, wherein it is set forth as grounds for the dismissal, first, that the amount involved is over one hundred dollars, and that this fact is so, whether the judgment in this case be taken as a basis, or whether the judgment obtained by Demourelle against Gussoni, subsequently assigned to Chamberlain, be taken as a basis. It is, therefore, urged that inasmuch as the udgment appealed from involves an amount >ver one hundred dollars and not more than three hundred dollars, Act No. 128 of the General Assembly (Extra Session) of 1921 will govern, and that consequently the appeal is taken too late.

The second motion alleges acquiescence as the ground for dismissal.

Appellant, Chamberlain, answers the motions to dismiss by denying that he acquiesced in the judgment of June 11, 1924, especially that part of the judgment awarding damages to appellee in the sum of $47.00. He further answers, denying that the devolutive appeal as herein taken has been taken too late. By way of exception, appellant pleads that neither the motion to dismiss on the ground that the appeal has been taken beyond the time allowed under Act 128 of 1921, nor the motion to dismiss on the ground of acquiescence, discloses any right or cause of action. It is further pleaded by way of exception that Act 128 of 1921 is violative of Article III, Section 16, and Article IV, Section 4, of the Constitution of 1921.

OPINION.

In considering the first motion herein filed for dismissal of this appeal, in which it is contended by mover or appellee, that the appeal has been taken too late, within the provisions of Act 128 of 1921, it is necessary at the outset to determine whether the appeal herein taken is from a judgment exceeding one hundred dollars and not more than three hundred dollars.

The judgment of June 11, 1924, dismisses the injunction proceedings which sought to enjoin the seizure of the assigned judgment in the case of Demourelle vs. Gussoni. The value of this assigned judgment, at the time of the seizure, amounted to $132.00, and we are of the opinion that the value of this seized judgment at the time of the seizure, as well as at the time of the injunction proceedings herein filed, determines the appellate jurisdiction of this court over the questions now raised by the motions to dismiss the appeal. Our conclusions on this point are based upon the following authorities :

Testart vs. Belot, 32 Ann. 604.
Meyer, Weis & Co. vs. Logan et al., 33 La. Ann. 1055.
Wickham & Pendleton vs. Nalty, 42 Ann. 423.
Causin vs. St. Tammany Bank and Trust Co., 146 La. 396.

In the first of the above cited authorities, Testart vs. Belot, the following ruling was made on motion to dismiss appeal:

“It is well settled that, where a third person enjoins the seizure under writs of fi-fa or seizure and sale issued against another, on the ground that the property belongs to him, the matter in dispute is the property and the ownership thereof, and the right to appeal is regulated by the value thereof.”

It follows, therefore, that Act 128 of 1921 is properly pleaded by mover herein, as the law applicable to the contention that the appeal has been taken too late, that is, more than' ten days, exclusive of Sundays, from the rendition of the judgment. The statute in question reads as follows:

“An Act to regulate the practice in the City Courts for the City of New Orleans, and to carry into effect Sections 90, 91 and 92 of Article VII of the Constitution.
“Section 1. Be it enacted by the Legislature of Louisiana, that the manner and form of proceedings before the City Courts of this State in cities having over one hundred thousand inhabitants, in cases where said court has concurrent jurisdiction with District Courts of all suits for moneyed demands above one hundred dollars, and not exceeding three hundred dollars, shall be governed by the general laws regulating proceedings before the District Courts, providing that delays for answering shall be three days only, Sundays and holidays excluded, that all exceptions and answers must be filed at the same time, that no preliminary default shall be necessary prior to judgment, and that judgments may. be signed immediately after rendition, and that there shall be no right to trial by jury in such cases before said City Courts. Appeals shall be allowed, and be returnable to the Court of Appeal, within ten days, exclusive of Sundays, from the rendition of the judgment, on giving bond, according to law, in a sum exceeding by one-half the amount of money judgments, in case of suspensive appeal, and in a sum-, to 'be fixed by the judge in case of devolutive appeal, and other than money judgments; the affidavit of the surety shall be sufficient, without that of the principal as to his solvency and residence.
“Section 2. That all laws or parts of laws .in conflict herewith, he, and they are hereby repealed.”

The record shows that the judgment appealed from was rendered on June 11, 1924, and that the devolutive appeal herein was taken on September 16, 1924.

Appellant pleads by way of exception to the motion to dismiss that the foregoing Act ,is unconstitutional, for the reason that it is violative of Article IV, Section 4, and Article III, Section 16, of the Constitution of 1921, and contends, if this be so, that the devolutive appeal herein could have been, taken at any time within one year from ’ the rendition of the judgment or its notification to him.

In our opinion, Act 128 of 1921 has restricted the time for all appeals, whether devolutive or suspensive, in cases mentioned in the Act, to ten days, exclusive of Sundays, from the rendition of the judgment.

Article IV,. Section 4, of the Constitution of 1921 provides, as have previous Constitutions of this State, that the Legislature shall not pass any local or special law regulating the practice or jurisdiction of any court. It is contended by appellant that the. statute in question is plainly a local - ¡or special law undertaking to regulate the practice to be observed in regard to cases arising in the City Courts of the City of New Orleans, and that to this extent it is violative of the Constitutional Article just noted. The question raised need not be further considered by us than to cite as our reasons for a contrary opinion against such contention, the case of Abry Brothers vs. E. M. Reynes et al., 8 Orl. App., page 140. The citations therein made of cases decided by the Supreme Court of this State in support of the ruling made by this court in Abry Bros. vs. Reynes, furnish full authority for our adherence in the instant case to our previous jurisprudence. It should be also noted that in the Abry case a writ was applied for and denied by the Supreme Court on March 1, 1911.

Article III, Section 16, of the Constitution of 1921 provides, as have previous Constitutions of this State, that every law enacted by the Legislature shall embrace but one object and shall have a title indicative of such object. It is contended by appellant that this prohibition nullifies the statute under consideration, for the reason that the title of Act 128 of 1921, while expressing as its single object the regulation of the practice in the City Courts for the City of New Orleans, it appears in the body of the Act to have an additional object, as expressed in Section 1 of the Act, to-wit:

“Section 1. Be it enacted by the Legislature of Louisiana, that the manner and form of proceedings before the City .Courts of this State in cities having over one hundred thousand inhabitants, etc., * * * shall be governed by the general laws regulating proceedings before the District Court, etc. * * *”

In other words, that the Act, contrary to its title, has an object additional to that expressed in the title, to-wit: The regulation of practice in any City Courts of the State in cities having over one hundred thousand inhabitants.

It has been repeatedly held by the Supreme Court of the State that if a part of a statute be broader than the single object expressed in its title, such fact does not nullify the statute in toto, and that to the extent, at least, in which the single object is expressed in the title and set forth in the body of the Act, that said Act is constitutional.

-In State of Louisiana vs. Crowley et al., .33 La. Ann. 783, it was held that a law may be broader than its title and not be unconstitutional; that' such portions of the law as are not expressed in the title, are null and void, and that the rest of the statute is valid. In the cited case, it appears that Act 98 of 1880 provided for the establishment of a Criminal District Court for the Parish of Orleans, and in this Act one of its sections also provided for the selection and drawing of jurors for the trying of cases in the Civil District Courts. Because of this additional purpose of the Act, expressed in its body and not provided in its title, it was contended that the Act was in violation of Article 29 of the Constitution of 1879, an Article similar, in fact, identical, to that of Article III, Section 16, of the present Constitution. The court held that this would not render the entire Act unconstitutional, inasmuch as every other part or Section of the Act was covered by the title; that the only effect would be that .this provision or Section, being foreign to the object expressed in the title, would be considered as not writen and void, but that the balance of the Act would stand impaired. The court said:

“The charge is substantially that the Act itself is broader than its title. This of itself does not destroy the entire Act. Cooley announces the rule of construction in such case to be as follows: ‘But if the Act is broader than the title, it may happen that one part of it can stand, because indicated by the title, while as to the object not indicated by the title, it must fail. * * * If by striking from the Act all that relates to the object not indicated by the 'title, that which is left is complete .in itself, sensible, capable of being executed and wholly independent -of that which is rejected; it must be sustained as constitutional.’ Cooley Constitutional Limitations, p. 181; 22 La. Ann. 779.”

In State vs. Ackerman, 51 La. Ann. 1217, 26 South. 80, the court held that Act 94 of 1896 did not embrace more than one object, within the meaning of Article 29 of 1879, and refused to hold said act unconstitutional because of the contention that the act embraced more than one object. Montgomery vs. Wood, 4 La. Ann. 298; State vs Harrison, 11 La. Ann. 722; Williams vs. Payson, 14 La. Ann. 7; State vs. Exnicios, 33 La. Ann. 253; State vs. Beeder, 44 La. Ann. 1013, 11 So. 816; State vs. Read, 49 La. Ann. 1535, 22 So. 761.

We are of the opinion that Act 128 of 1921 applies and governs the appeal herein taken, and that said Act is not unconstitutional for either of the reasons urged by appellant.

We are further of the opinion that applying the Act to the facts of this case, governing the practice regarding a devolutive appeal as herein taken, that said appeal has been lodged more than ten days from the rendition of the judgment appealed from, and for this reason the motions to dismiss the. appeal should be maintained.

It is not necessary to consider the question of appellee’s acquiescence in the judgment or any part of the judgment herein appealed from.

It is, therefore, ordered that the motion be maintained and that the appeal herein taken be dismissed at appellant’s costs.