source: Caselaw Access Project

author: Nicholls, O. J.

license: Public Domain

text:
    No. 13,168.
    First Natchez Bank of Natchez, Mississippi, vs. Hartwigg Moss, Janvier & Moss, Limited, and Mrs. Rosa Rose Moss, Garnishee.
    Syllabus.
    3. The fact that a judgment creditor causes garnishment proceedings to issue and interrogatories to be propounded to two different parties on the prayer contained in one single petition, does not take away from the proceedings their character as separate and distinct proceedings. The service of petition and interrogatories upon each garnishee does not bring him into court and make hiñi a party to any proceeding other than his own.
    2. The original interrogatories propounded by a judgment creditor under garnishment proceedings to a garnishee are limited to questions concerning the indebtedness of the garnishee to the judgment debtor and to the fact of his holding property or effects of such debtor in his possession; his relation with third parties can not be enquired into.
    The garnishee has sufficient concern personally in the restricting of the enquiry within this limit to entitle him on his own behalf to insist upon this being done.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Boainer & Dodds for Defendant, Appellee.

      Lazarus & Luce for Plaintiff, Appellant.
   The opinion of the court was delivered by

Nicholls, O. J.

The plaintiff alleged that it was the owner of a judgment rendered by the District Court for the parish of Tensas, on the 20th of Juno, 1890, for the sum of seventy-three hundred dollars, and interest, against Charles Moss & Co., and the individual members, Charles Moss and Hartwigg Moss.

That under said judgment it had caused to be issued a fi. fa. against said defendants, including Hartwigg Moss, for the amount of said judgment, which writ had been placed and was then in the hands of the civil sheriff of the parish of Orleans.

That it had good reasons to believe that Janvier & Moss, a limited corporation, and Mrs. Rosa Rose Moss, had in their possession, or under their control, property, or effects, belonging to one of the defendants, Ilartwigg Moss, or were indebted to said TIartwigg Moss, and that it was necessary to make Janvier & Moss, and Mrs. Rosa. Rose Moss, parties garnishee.

Plaintiff annexed interrogatories to be addressed to the garnishees.

They prayed that the parties be cited to appear and to answer the petition; that they be made garnishees and ordered to answer under oath the accompanying interrogatories, and, after due and legal proceedings had, they be condemned to'pay the amount of said judgment.

The garnishees were ordered to answer as prayed for.

The same interrogatories were asked of each of the garnishees, and they were as follows:

First. — Had you in your hands, or under your control, at the time of the service of these interrogatories, or at any time since, moneys, rights, credits, or other property whatever, belonging or due to the said defendant in writ, or to his wife, Rosa Rose Moss, or in which he or she has or had any interest for the whole or for a part, and if yes, what is the nature, description and amount thereof, and is the same sufficient to pay, or to satisfy, the full amount of said writ, or, if less, to what amount? You being asked and required to make a full disclosure in relation to the same.

Second. — Were you not at the time of service upon you of these interrogatories, or since, directly or indirectly indebted or obligated unto the said defendant in writ, or his said wife, for anything, or for any sum, whatever, whether for your self alone or together with others, in consequence of any sale, or exchange, or transaction, of any kind whatever, whether the same be due or to become due, and whether the interests of said defendant in writ, or his said wife, be direct or indirect, or be for the whole or a part only, or whether it be by bill, note, or otherwise, and, if yea, what is the nature, description, and amount thereof, and is the same sufficient to pay, or satisfy, the full amount of said writ and costs, or, if less, what amount? You being-asked and required to make a full and detailed disclosure in relation to the same.

Third. — Have yon, at any time since the service of notice of seizure in your hands, herein made, directly or indirectly, unto or with the said defendant in writ, or his said wife, any payment or novation or compromise, or arrangement, or given him or her any note or written obligation, or received from him or her directly, or indirectly, any receipt or acquittance? And, if yea, state the nature, description, and amount thereof, and the time, place, and circumstances of the same.

Janvier and Moss filed the following' exceptions:

Janvier and Moss, Limited, made parties hereto as garnishees, except to the interrogatories propounded to the plaintiff in so far as said interrogatories relate to the affairs and property of Mrs. Rosa Rose Moss, and inquire as to the property of said Mrs. Rosa Rost' Moss, held by this company, and its indebtedness to her, on the ground that the plaintiff is not a judgment creditor of said Mrs. Rosa Rose Moss; that it has obtained no execution or seizure against her property and can not, under garnishment proceeding directed against II. Moss, require this garnishee to disclose its relations with any other person than the debtor and defendant in such garnishment process.

In view of the premises, they prayed that said interrogatories,, so far as they relate to the property and indebtedness of the said Mrs. Rosa Rose Moss, be stricken out and this exceptor relieved from answering same.

Janvier and Moss, however, filed on the 18th January, 1899, answers as follows: v

“Answering, subject to the exceptions, to the interrogatories herein filed, Janvier and Moss make answers to the interrogatories propounded as follows: To the first interrogatory, they answer — The defendant Company did not have in its hands, or under its control, directly or indirectly, at the time of the service of these interrogatories, or at any time since, any money, rights, credits, or property, belonging to the defendant, II. Moss, except that the defendant, II. Moss, is the owner of one share of the defendant company’s stock of the par value of one hundred dollars, which the company was notified prior to the service of garnishment in this case, is held in pledge by a creditor of the said Moss.

To the second interrogatory, they answered — Janvier & Moss. Limited, were not, at the time of the service of these interrogatories, or since, indebted to the defendant, II. Moss, in any manner whatsoever. To the third interrogatory, they answered — No, we have not made' any payment, novation, or - compromise, or arrangement, with the said II. Moss, or given him any note or written obligation, or received from him, directly or indirectly, any receipt or acquittance.

On the same day (January 18, 1899), Mrs. Rosa Rose Moss answered all the interrogatories propounded to her in the negative.

On the 2nd of February, 1899, plaintiff filed the following traverse:

“Now comes, plaintiff herein and traverses generally and specially all the answers of garnishees herein, and alleges generally that all the answers of the garnishee, Janvier & Moss, Limited, are untrue.

Traversing1 the answer of said Janvier and Moss, Limited, to the first interrogatory, specially, plaintiff avers that said Janvier & Moss, Limited, had in their hands, or under their control, directly or indirectly, at the time of service of these interrogatories, and since, seventy-three shares of the capital stock of Janvier.and Moss, Limited, and all accumulations, dividends and earnings, arising or resulting therefrom, directly or indirectly, as well as moneys, credits and obligations in its hands, or under its control, or upon the books to the credit, of, or in the name, of Mrs. Rosa Rose Moss (or Mrs. Ilart-wigg Moss); that said seventy-three shares of stock, with all the earnings, accumulations and dividends thereon, and all property or money standing in the name of Mrs. Rosa Rose Moss, or Mrs. Hartwigg1 Moss, are the property of Hartwigg Moss, acquired by his services or industry, and with his money, means and earnings, and are not the property of said Mrs. Rosa Rose Moss, were not acquired with her means and funds, and are liable to the seizure and garnishment herein; and plaintiff specially denies that the share of stock standing in the name of Hartwigg Moss was pledged prior to the service of the garnishment herein, or that said company received notice thereof.

To the answers of said Janvier and Moss to the second interrogatory, plaintiff repeats and makes the same special traverse as to its answer to the first interrogatory.

Plaintiff specially traverses the answer of said Janvier and Moss, Limited, to the third interrogatory, and alleges that any settlement, payment, novation, compromise, or arrangement, made by it since the service of the interrogatories herein, is null and void.

Wherefore plaintiff prays that this traverse be filed and sustained; that-said Janvier and Moss, Limited, be given notice thereof; that on the trial of this traverse, plaintiff have and recover judgment against said Janvier and Moss, Limited, in the sum of $7350, with legal interest, as. stated in the petition herein, and all costs, the said judgment decreeing all the' property, assets, moneys and effects standing in the name of Mrs. Rosa Rose Moss, or Mrs. Hartwigg' Moss, in the hands, or on the books, or under the control of said Janvier and Moss,, Limited, to be the,property of Hartwigg Moss and subject to petitioner’s judgipeut, garnishment and fieri facias and seizure herein,, and ordering the same to be delivered to the civil sheriff, to be sold to pay and satisfy the judgment and writ herein proceeded upon, with recognition of the lien and privilege of plaintiff arising from the seizure and garnishment, and for all costs and full and general relief.”

On the same day the plaintiff filed substantially the same traverse to the answers made by Mrs. Rosa Rose Moss, as follows:

“Traversing the answer of Mrs. Rosa Rose Moss to the first interrogatory specially, plaintiff avers that she had in her hands, or under her control, directly or indirectly, at the time of service of interrogatories herein, and sipce, moneys, rights and credits, or other property, belonging, or due, to the defendant, Hartwigg Moss; that she has, or had, in her hands, or under her control specially, seventy-three shares of the capital stock of Janvier and Moss, Limited, belonging to said Hartwigg Moss, and likewise all dividends, accumulations and earnings arising, flowing or resulting from said seventy-three shares of stock, and all credits, assets, moneys, or funds whatsoever in the hands of Janvier and Moss, Limited, or on their books in the name of said Mrs. Rosa Rose Moss; that she has other property, moneys, rights, or credits, in her possession, or' under her control, belonging to said Hartwigg Moss; that any claim or ownership, or right, that she asserts thereto is a simulation; that said seventy-three shares of stock and all accumulations or dividends thereon, and all moneys and assets of said Hartwigg Moss held in.her hands, or. control, were acquired with the earnings and by the industry and services of said Hartwigg Moss, and not with any means or funds of said Mrs. Moss, and that all of the same are the property of said Hartwigg Moss.

To the answers of Mrs. Rosa Rose Moss to the second interrogatory plaintiff repeats and makes the same special traverse as to her answer to the first interrogatory.

Plaintiff specially traverses the answer of said Mrs. Rosa Rose Moss to the third interrogatory, and alleges that any settlement, payment, novation, compromise, or arrangement, made by her since the service of the interrogatories herein, is null and void.

Wherefore plaintiff prays that this traverse be filed and sustained, 'that said Mrs. Rosa Rose Moss be given notice hereof; that on the trial of this traverse, plaintiff have and recover judgment against said Mrs. Rosa Rose Moss, wife of Iiartwigg Moss, in the sum of $7350, with judgment decreeing all the property, assets, moneys, and effects standing in the name of said Mrs. Rosa Rose Moss, to be the property of Iiartwigg Moss, and subject to petitioner’s judgment, garnishment and fieri facias and seizure herein, and ordering the same to be delivered to the civil sherifE, to be sold to pay and satisfy the judgment and writ herein proceeded upon with recognition of the lien and privileges of plaintiff arising from the seizure and garnishment, and for all costs and for full and general relief.”

The plaintiff, with leave of court, amended its original traverse to the answers of the garnishee, Janvier & Moss, Limited, as follows:

“Plaintiff, by amendment, traversing the answer of said garnishee to the first interrogatory, would specially aver that the said Iiartwigg Moss, at the time of his acquisition of said seventy-three shares of the capital stock of Janvier & Moss, Limited, standing in his wife’s name, was insolvent and to the knowledge of said garnishee, and that plaintiff was, at that time, a creditor of said Iiartwigg Moss; that there is no other property out of which plaintiff can make its debt.

“Plaintiff repeats this traverse to the answer of said garnishee to the second interrogatory, and generally, and reiterates all the aver-ments of its original traverse.

“Wherefore .plaintiff prays that this amendment be allowed and filed, and as in its original traverse, and for costs and general relief.”

Plaintiff at the same time, with leave of court, amended its original traverse to the answers of the garnisheé, Mrs. Rosa Rose Moss, as follows:

“Plaintiff, by amendment, traversing the answer of said garnishee to the first interrogatory, would specially aver that the said Iiartwigg Moss, at the time of his acquisition of said seventy-three shares of the capital stock of Janvier & Moss, Limited, standing in his wife’s name, was insolvent and to the knowledge of said garnishee, and that plaintiff was, at that time, a creditor of said iiartwigg Moss; that there is no other property out of which plaintiffs can make their judgment.

“Plaintiff repeats this traverse to the answer of said garnishee to the second interrogatory, and generally, and reiterates all the aver-ments of its original traverse.

“Wherefore plaintiff prays that this amendment be allowed and filed, and, as in its originál traverse, for costs and general relief.”

Mrs. Rosa Rose Moss excepted to the traverse of her answers as garnishee herein filed; excepted to the amended traverse heretofore filed, on the ground that the same issues ought to be raised by the said traverse, and by. the said amended traverse, is now pending in this Honorable Court in suit No. 58,283, in which plaintiff herein has brought suit against this defendant, alleging that her title to the stock of Janvier & Moss, Limited, is fraudulent and void, and that the same is, in reality, the property of her husband, ITartwigg Moss.

'She showed that she could not be required to litigate the same cause- of action in two causes at the same time, and that the aforesaid suit, numbered and entitled as above, was pending in your Honorable Court at the time of the filing of the said traverse, and amended traverse, and she, therefore, pleaded said cause, No. 58,283, as lis pen-dens, against the issue sought to be raised in the present action, which she averred must be confined to the truth, or falsity, of this garnishee’s answer to the interrogatories.

She prayed that the said traverse, and amended traverse, be stricken from the record.

On the 30th of June, 1899, the court decreed (as would appear from the transcript) that the exception of Janvier & Moss, Limited, to the answering, by Mrs. Rosa Rose Moss, of the interrogatories propounded to her, in so far as said interrogatories relate to the property and indebtedness of said Mrs. Rosa Rose Moss, be sustained, and said exceptions are maintained.

There was obviously either an error in this decree, or in the copying of the decree, for it is evident from the whole proceedings, and from plaintiff’s application for an appeal, that the court’s judgment (as stated in said application) was that Janvier & Moss’ exception be sustained so as “to hold that they (Janvier & Moss) do not have to answer the interrogatories in said garnishment as to what property, effects, moneys, pr assets, they might have in their hands, or under their control, belonging to said Mrs. Rosa Rose Moss.”

The transcript ervls with this decree, from which decree plaintiff appealed.

OPINION.

The plaintiff having- obtained judgment against Charles Moss & Oo., and Charles Moss and Hartwig Moss, the individual liembers of the corporation, caused a fi. fa. to issue in! execution thereof, and caused Janvier & Moss, Limited, and Mrs. Rosa Rose Mosis (wife of Hartwigg- Moss), to he garnisheed.

Interrogatories were propounded to the garnishees.

Mrs. Rosa Rose Moss answered the interogatories propounded to her in the negative. Plaintiff traversed her answers and, in and by the traverse, sought to raise an issue as to the ownership of seventy-three shares of the stock of Janvier & Moss, Limited, standing in her name, urging- that the title in her name was a simulation, the stock really belonging- to Hartwigg- Moss, her husband.

Mrs. Rosa Rose Moss met this traverse by an exception of lis pen-dens, alleging the existence of a direct action by the plaintiff against her in the Civil District Court on that same issue.

This exception, and, of course, the traverse itself, has not yet been disposed of.

In the interrogatories propounded to Janvier & Moss, Limited, they were interrogated not only as to whether they were indebted to Hart-wigg Moss, the judgment debtor, or had property and effects of his in their possession, and under their control, but whether they were indebted to Mrs. Rosa Rose Moss, or' had property of hers in their possession, or under their control.

They answered the questions touching the fact of their being-indebted to Hartwigg1 Moss, or having property of his in their possession, or under their control, hut excepted to the right of plaintiff to propound interrogatories to them touching- the situation as between themselves and Mrs. Rosa Rose Moss.

Before the exception was disposed of, plaintiff traversed the answers of Janvier fe'Moss and, in and by the traverse, sought to raise an issue between itself and the former as to the ownership of seventy-throe shares of their stock standing- in the name of Mrs. Rosa Rose Moss.

That. traverse has not yet gone to trial, and what the rights of the parties may be under it is not before us.

The District Court sustained Janvier & Moss’ exception to plaintiff’s right to propound interrogatories to them as to any indebtedness they might be under to Mrs. Rosa Rose Moss, or as to having property or effects of hers in their possession, and from this judgment the plaintiff appealed.

It will bo seen that'the issue'before us is a very narrow one. We are not called on to say whether, when Janvier & Moss answered that they had no property of Hartwigg Moss in their possession, the plaintiff was authorized and entitled to raise,, by traverse of those answers, an issue between itself and Janvier & Moss as to whether the seventy-three shares of their stock, standing in the name of Mrs. Rosa Rose Moss, belonged to her or to her husband.

That question will arise when the traverse made by the plaintiff to the answers, as actually made, is brought to trial.

All that we are concerned with now is whether the District Court erred in relieving Janvier & Moss from answering, as garnishees, the interrogatories propounded to them as to their having in their possession property of Mrs. Moss.

It is not now a question whether Janvier & Moss could, on the traverse, either of their own answers as garnishees as made in reference to their relations with Hartwigg Moss, or upon the traverse of the answers made by Mrs. Hartwigg Moss, as garnishee, be brought to the stand as witnesses and made to testify on an issue attempted to be raised as to the simulation of the title to Mrs. Moss of the seventy-three shares of stock standing in the name of the latter.

It has been held that a judgment creditor can not, when a garnishee has answered negatively to having in his possession property of the judgment debtor, be permitted, by traverse to the answer, to raise an issue with the garnishee as to the ownership of property in his possession, the title of which is in the name of some person other than the judgment debtor. Ivens vs. Ivens, 30 Ann., 249; 27 Ann., 455; 51 Ann., 1303.

If this be true, it is more obviously true that the original interrogatories propounded to a garnishee could not be directed to the ascertainment of whether the party sought to be made garnishee does not hold in his possession property standing in the name of some person other than the judgment debtor.

Plaintiff argues his case as if the garnishment proceeding in the matter of Janvier & Moss is identical with that of Mrs. Rosa Rose Moss, and that they constitute one and the same proceeding;' Janvier & Moss, an4 Mrs. Rosa Rose Moss, being each a xiarty to both proceedings and, in his brief, he says: “Under the exceptions, the issue is whether under the garnishment proceedings directed against property and assets in the possession of Janvier & Moss, belonging to Mrs. Rosa Rose Moss, they can except to make any disclosure when Mrs. Moss herself files answer to the interrogatories making no objection, nor objection to the proceedings against her.”

“By the interrogatories, the answers of Mrs. Moss, and the traverse, the issue is tendered the court as to whether the property standing in the name of the wife is not that .of the husband, any alleged claim which she has being simulated. - Mrs. Moss tenders no exception nor objection. She has answered the interrogatories. She has tendered to the court the issue and decision on that issue is called for. She having tendered no exception on her own behalf, can Janvier & Moss, Limited, who filed answers as far as Hartwigg Moss is concerned, tender an exception which is in the interest, or on behalf, of Mrs. Moss? We think not. Under the authorities it is well settled that the garnishee is a stakeholder, and can not champion the rights of either party. Bank vs. Pauser, 40 Ann., 796-798; Hazard vs. Agricultural Bank, 11 Rob., 336; Kimball vs. Bank, 14 La., 511-514; Frazier vs. Wilcox, 4 Rob., 518-528.”

He also says: “On account of Mrs. Moss having control of and setting up a claim to this property in the hands of the corporation, it was necessary to make her a party. On account of Janvier & Moss having possession of the property, it was necessary to make them a party. Mrs. Moss sets up a claim of title to the property. Janvier & Moss, Limited, set up no claim of title on their behalf, or that of any one else, except Moss.”

“The issue as to whether this is the property of Hartwigg Moss, or of Mrs. Moss, is tendered by the answers of the latter even, if the exception of the corporation w'as sustained. It was necessary, however, to make Janvier & Moss, Limited, a party on account of its having actual physical possession of the property, so that we would have the property, or those in actual custody of it, to respond to whatever judgment we may obtain.”

There are inaccuracies both of law and fact in these statements. The two garnishment proceedings, though originally in one petition, are separate and distinct. The citation upon Janvier & Moss, Limited, brought them into court in their own garnishment proceeding, but not into the garnishment proceeding against Mrs. Rosa Rose Moss, and the citation upon Mrs. Rosa -Rose Moss brought her into her own garnishment proceedings, but not into that of Janvier & Moss, Limited.

Neither is a party to any other proceeding' than their own.

Mrs. Moss has not, in her own proceeding,' waived any of her rights or tendered in her answers any issue of the ownership of the stock standing in her name.

It is the plaintiff who has tendered that issue, by'its traverse in her case, which issue she has resisted by an exception of lis pendens, which is still undisposed of. The traverse itself in that proceeding has not been tried, and when brought to trial it is fair to assume that Mrs. Moss will deny the right of the plaintiff in proceedings in garnishment directed against her to 'attack her title to the shares of stock standing in her name.

Plaintiff is in error in supposing' that Janvier & Moss, Limited, have filed their exception in the interest of Mrs. Rosa Moss, or that they have set up in any way' the 'title of Mrs. Moss to any property in their possession.

They have simply denied, in their own interest, the right of any judgment creditor, in garnishment proceedings, to propound original interrogatories to a garnishee except as to property in their possession belonging to the judgment debtor. It is obvious that such a claim, if permitted,'would so seriously interfere with the business of parties that they are legally interested in their own behalf to contest it. The extent of the issues which plaintiff could legally raise upon its traverse to the answers of Janvier & Moss, Limited, as made, is something other and very different from the question as to what original interrogatories it was authorized to propound to them.

The issue which is presented to us on this appeal, and which we are called on to decide, is not the one which appellant argues.

We are of the opinion that the judgment of the District Court, appealed from, is correct, and it is hereby affirmed.’


author: Niciiolls, C. J.

text:
    No. 13,187.
    Louis Schick vs. Charles R. Corbett et als.
    S'vllabus.
    1. A suit brought in the Fourth City Court to recover in solido from three parties alleged to be partners in a commercial partnership doing business under tlie name of Globe Debenture Co., Limited, and the partnership itself, the , , • . , • ‘ t- e * ; V, 5: ; i ,, / • sum of eighty dollars alleged to have been paid them under a contract declared-to have'been-abandoned by them^ disclosed 'on its'face/5'as"‘stated;'á cause-falling under •the,;jurisdiction,pf.the;.I^ourt-h City Court*,- . - > •
    The plaintiff cannot be controlled, in the statement of his cause, of action as he believes it to be, bút lie "füáices íiis allegaüons‘at his' risk ás to their cor- * rectness.- * • • 'Wi**' ■>»> v,’! : '
    The defendants cannot jurisdiction- .of the court of- original, jurisdiction by denying^ the ^ existence of a partnership as alleged, and by denying that they were partners therein, and setting up that the body *' with whom plaintiff1 contracted wás8 a’ corporation,- "and the individuals sued . as-partners were stockholders therein,., and. that the issues raised in the-litigation involved the decisiop. by the .court of the question of the legal existence -vel non of a body claiming to be a corporation holding assets largely in excess in valiie over'tlie'ámbukVof wliiclFthfe1 court had jurisdiction, and also .of the continued-existence ml nou/iot- a-^ontract i covering values largely in excess of its jurisdiction. ,
    The issues stated are matters of defense, and what is set up by a defendant in defense do'es not oúst^ íifé* ¿óiu*t'’á jurisdiction' over a claim by plaintiff, .. which,-;as stated,;falte» legally,*.within '.it. ('State* carrel. Cayard, 52 Ann., 4 : Succession of Hose. 48th Ann., 418.)
    2. The Supreme Court has, on a number of occasions, declared that, although ' prolate courts can not try titles to real estate and decide directly* on ‘their . validity, yet when the] question-of title arises collaterally, audits examination is necessary «to rarrive at a correct conc|usio;ifi:p. matters over which.it has jurisdiction, it must necessarily.take .cognizance of such title. "Qitwndo lex aliquid eoñeedii concederé videtur it id per qubd’dévenitúr ad iliud”.

    ÍN RE -Charles R. Corbett et als. applying for, certiorari or writ of review to the Court of Appeals, Parish of Orleans. . a .•

      Francis Lory, Jr., f.or Gharles R. Corbett et aZs.;rPeti-ti.0ai®rs.v<);
    Respondent-judges for themselves.

      .(leorge-B.. S.mart for Louis Schick,-Respondent.-
   The opinion of the .court was delivered by

Niciiolls, C. J.

The defendants in the above cause, Charles R. Corbett, IL.-I-I. Brooks, Dr. Ernest Pollock, and the Globe Debenture Company, .Limited, hied-, in, this- court ■ a, petition, in which they .averred:

“That a suit was, filed in the Fourth City Court,.of the parish of Orleans, by one Louis Schick vs. Petitioners, for', the return of eighty dollars paid by said plaintiff oil certain installments, due on certain debenture certificates, which were issued to him, alleging- that said corporation (Tlie Globe Debenture Company) was insolvent, illegally organized, hence by virtue of the jurisprudence of Louisiana, laid down in Hewitt vs. Williams, 47 Ann., 1078, said incorporators (Cor-bett, Brooks and Pollock) were liable as commercial partners, and judgment was prayed for against all of the present petitioners.

“That petitioners met the issue, urging that said petition was vague and indefinite, set forth no cause of action, prematurity of action, non-joinder and mis-joinder of parties, and that said Fourth City Court was without jurisdiction ratione materiae, and, as to the Globe Debenture and Loan Company, Limited, that the word Limited was omitted from the petition and prayer, and citation was so issued 'and in the name of the Globe Debenture and Loan Company, to which the exception of want of citation was urged.

“That in the Fourth City Court all the exceptions were overruled, and judgment rendered as prayed for.

“That the cause was then appealed to the Court of Appeals, which said Court of Appeals, through Judge I. D.' Moore, affirmed said decision of said City Court.

“That under Article 101 of the Constitution, the Supreme Court had the right to review said judgments under writ of review, and petitioners urge as grounds of nullity of said judgment:

First — That the petition of plaintiff was vague and indefinite and set forth no cause of action.

Second. — That said suit was premature, as said term of said contract had not expired.

Third. — That said Fourth City Court was without jurisdiction ratione materiae to pass upon said claim, as the amount of said contract, and not the amount sued for, was the test of jurisdiction, and said City Court was without jurisdiction to pass upon the validity, or non-validity, of a charter, as said City Court was a court of limited jurisdiction, and to pass upon the validity of a charter would be distributing a fund over and above one hundred dollars, and might involve a title to real estate, and not until a charter had been decreed annulled or forfeited could a City Court pass upon a suit brought against individuals as commercial partners. That, under the contract of the Globe Debenture and Loan Company, Limited, it was not required to redeem outstanding certificates until six years after issuance, hence said action was premature on the face of the contract. That the matter in dispute, and not the amount sued for, vested jurisdiction, for Article 143 of the Constitution specifically states the amount in dispute or the fund to be distributed.

Fourth. — The Globe Debenture and Loan Company, Limited, was incorrectly sued, the word Limited being left off, and citation so issued, was no citation at all, and was illegal, hence the exception of want of citation.

Fifth. — That said corporation having been joined, and so incorrectly with the individual incorporators, there was a non-joinder and a mis-joinder and want of proper parties.

That said judgment was a nullity, void, and of no effect.

That they were without remedy of appeal from said judgment of the Court of Appeals, and their only remedy was for a writ of -certio-rari, under Article 101 of the Constitution of 1898.

They pr,ayed for such writ and the bringing up of the record in the cause; that the judgments of the City Court, and Court of Appeals, be reviewed, and that such judgment and oVder he rendered as the Supreme Court might he Competent to grant.

On reading and considering this application a writ pf review was ordered to issue, and under the orders of the court the record of the cause was brought to this court.

The allegations of the petition, filed by the%plaintiffs in the City Court, were as follows:

“That Charles R. Corbett, Dr. Ernest Pollock, and LL H. Brooks, engaged in business under the name and style of the Globe Debenture and Loan Company, Limited, are indebted unto petitioner for .the sum of eighty dollars, for this to-wit:

“That petitioners entered into a contract with said Globe Deben: ture and Loan Company to subscribe to ten shares of debenture bonds, payable at the rate of two dollars per month per share, or twenty dollars in all, for a .term of six years, unless sooner redeemed, at which time defendants were to pay petitioner in full the sum of two thousand one hundred and sixty dollars.

“That petitioner faithfully performed his part of the contract by paying the defendants the sum of twenty dollars per month for four consecutive months, amounting in all to eighty dollars, after which defendants refused to continúe with the agreement and pretended that said Debenture and Loan Company was an insolvent corporation.

“That said Globe Debenture and Loan Company was not incoj^o-rated in the manner prescribed by law, and said Charles R. Corbett, Dr. Ernest Pollock, and PI. II. Brooks, the pretended incorporators, are liable, individually, and in solido, for the contracts of said pretended ‘corporation as commercial partners. i:' ' 11

“Wherefore petitioner ' prays that said' Charles 'K.--'Oort>ett/ I)r. Ernest Pollock, and IT. IT. Brooks, be cited tb appear and' answéF this petition, and that after due proceedings there be judgment in favor of1 petitioner and against said • defendants, 1 Charles R. Corbett,''Drl Ernest Pollock, and IT. IT. Brooks, as well as the Globe Debenture and Loan Company, fór thé sútíi of eighty dollars,' interest, costs, and for general relief.”

We find accompanying the record forwarded to this'court,‘a state-' ment from the Court'of Appeals, in which, after informing us that the suit was otie on' áppe'aFbefore it) ffeni tile ’City' Court' of New Orleans, and was, therefore, tried dé novoJ ahd by one 'of 'its 'judges', who decided it imméüiately after trial, and without‘written opinion, as ‘ authorized by Art. 143 of thh'Constitution, it'proceeded'to maleé a statement of fáéts in-the case. We'need hot discuss’ Here the question' whether such a statement, when the' testimony - has not been 'taken' down in writing, would be authorized'to be forwarded'to us hither ex-propri'o'molu'‘hy the Court' of Appeals, or'at our own instance'"(C. P;''600-601’), inasmuch as the pulióse'had in view’ by''this ‘court 'iii' ordering the record sent up was to examine into thé'quésííion1 Simply of 'the jurisdiction of the Fourth City Court, which wfek'iirg’ed by' the defendants in that court, and also in the Court of Appeal's. '

After considering that questibn, 'it is our opinioii that' the plea to the jurisdiction of the'City Court was not well taken.'"

’The aetioh, as brought,'was a simple' monied demand for 'eighty dollars against three parties alleged to be partners iii a commercial partnership doing business under a certain name, and ’ against' the said alleged partnership. ' It can hot be denied that if the'parties n'amed were in fact partners in'á commercial partnership,1 doing business under a particular name, the suit would’properly fall under the jurisdiction of the City1 Court (State ex rel. Knopp vs. Judge, 48 Ann., 1027; State ex rel. Beauvais vs. Judges, 48 Ann., 672), but the 'defendants denied, as a fact, that they'were partners in a partnership of 'any kind, hi- that ■ the body averred to be á partnership. was such; they aVerréd, on the contrary,' that the body said to be a partnership1 was á corporation, and that1 the alleged “partners”' were '’stockholders iii thé said corporation; that the plaintiff could no't ignore that' fact and proceed directly against them as hq had, dope as partners, and against the body as a partnership, but was bound, as part of his case, to make a'direct attack upoii the existence of the'bddyr'as:'á',cói-por'Atióh, and inasmuch as the assets of ‘the corporation were --largely in excess ill'-Value over any'amount of which-the City Court had jurisdiction, and-a judgment'for plaintiff would necessitate a decision upon the issue as to whether the'body sued was a corporation :or not, the action could not, legally, fall under the cognizance of the City Court.

' The plaintiff,'undoubtedly,- had the legal right to go into'the City Court On a direct monied-demand for eighty 'dollars', and to 'assert that the parties owiiig him were a commercial ■ partnership and the members thereof, if he believed :'such-to be the fact, and he Ivas willing to allege them so to be. ’

He ’could -liot be controlled in the statement of his cause .of action, a'nd'he made ‘the 'statement at his -own risk. If'he'could not establish the 'existence of his 'debt, and of its' being owed to him by a commercial partnership’;, and the members of the'partnership as'alleged,’lie would take nothing by his suit.

The defendants, when brought into court as a commercial partnership - and' as commercial partners,' had the legal right to deny the •existence of' such' a partnership ail’d 'of membership therein. Such a denial would simply present in defense a matter''of fact, ’which the City Court, under the exigency of the situation, would be' bound to pass upon.

The mere assertion'of the defendants that they'wólré'h corporation, and stockholders theréín, would ‘simply be’ alleg'aíróií á'gainst" allegation. It could not be' assumed, on a’mere excepti'oii'i/f 'jurisdiction', that defendants’ allegation was correct.

To stop and determine on such-an exception''the'issue of corporation, or partnership, would be to pa'ss in limine’ into a matter properly an issue’on’the merits.

It is a matter of constant occurrence for courts of limited ’jurisdiction to be fo'tced;’to pass’ indirectly upon matters which' cóuld not be legally brought'béforé them for direct’Adjudication.’

-'This court,1 í’Or' instance;-on a^'ilumbeVof occasions, declared that although probate courts can not try titles to real estate, and decide directly on- their váli‘dity;-yet, when the question of title arises collaterally/and its' examination is necessary to arrive 'at'a 'correct'conclusion, in matters of which it'has jurisdiction, it must necessarily take cognizance of such title. Quando lex aliquid concedit concederé videtur et id per quod devenitur ad illud.

Reeds vs. Knight, 5 N. S., 10; 5 N. S., 217; 6 N. S., 305; 7 L., 378; 12 La., 214; 14 La., 177; 15 La., 455; 17 La., 238; 3 Rob., 100; 4 Rob., 165, 278, 290; 8 Rob., 488; 3 Ann., 582; Hennen’s Digest (2nd Ed.), p. 342, verbo “Cpurts,” No. 10.

It has. also several .times announced that what u defendant sets up 'by way of defense in an action, can not deprive the court of jurisdiction. State ex rel. Cayard, praying, etc., 52 Ann., 4; Buisson vs. Staats, 9 Ann., 236; Gustine vs. N. O. Oil Co., 13 Ann., 510; State vs. Delaney, 28 Ann., 434.

In Wells on Jurisdiction, page 67, it is stated that an incidental question concerning' the title to land does not oust the jurisdiction of a court forbidden to try titles, although it has no jurisdiction when there is a direct and distinct issue made by the pleading, since, in that case, the matter of title is the foundation of the action, at least in part.

So, if a suit be brought on a promissory note given for land to which the plaintiff had no title, and for which he had failed to make a deed, this does not oust jurisdiction. Rogers vs. Perdue, 7 Black, 303; Hancy, 12 Ind., 481.

The prohibition relates to cases in which the purpose of the action is to recover the land, or settle the question of title.

We need not stop to inquire whether the adjudication of such an issue in the lower court would affect or determine the question as to the particular court to which an appeal should be taken from it, nor whether an adjudication rendered under such circumstances could be, pleaded generally as res judicata upon such issue, or be limited in its effect to the decision of the particular case in which it was so indirectly forced and presented.

It is perfectly true that the conclusion reached might be erroneous, and, if so, that such an important issue would have been passed upon by a court of small jurisdiction, but that result could not well be avoided.

As matters stand to-day in Louisiana under our present judicial system, an argument of mere hardship loses much of its force, as through appeals and writs of certiorari and review almost every question of law and fact can be brought before this. court for final decision-

For the reasons assigned, we find no good ground for altering, in any manner, the judgment of .the Court'of Appeals, or that of the City Court. They must remain undisturbed.


author: Nicholls, C. J.

text:
    No. 13,213.
    Roland LeSeigneur et als. vs. Mrs. Elina Bessan and Husband.
    Syllabus.

      1. Questions or propositions of law submitted to the Supreme Court by the Court of Appeals for an opinion under Article 101 of tbe Constitution must be predicated upon specific facts of the particular case pending before that court, found by the Court of Appeals. It is not the right nor the duty of the Supreme Court to ascertain and fix facts and conclusions of fact. Por the purpose of expressing an opinion it has to take as true facts of the case found by the Court of Appeals. If the party dissatisfied with the judgment of the Court of Appeals should succeed in having the case brought before the Supreme Court by certiorari, the latter should find itself in a situation to pass upon the facts and law of the case as if it had been carried before it directly by appeal from the District Court, and not be confronted by its own findings of fact fixed and declared by anticipation.
    The parties to the litigation are not bound by the facts as found and sent up to the Supreme Court by the Court of Appeals, nor does the former court itself stand committed to the same on a review of the case under Article 101, but it is free to review the evidence and ascertain the actual facts, and having so ascertained them to declare the law as applicable thereto.
    2. The fact that the list of delinquent taxes and delinquent tax payers filed in the" State Auditor’s office under Act Xo. 42 of 1871, may have been recorded ‘ tardily in the office of the recorder of the parish where the land is situated, or filed tardily in the office of the Auditor, would not carry with it as a result the preventing of the vesting in the State of the title to the lands so returned as provided in that statute, when but for this fact the titles would have vested where rights of third parties had not intervened before the filing or recording of the lists.
    3. If a husband’s name appeared on the delinquent lists of 1873 under a proper and legal assessment of the property made in his name in 1872, while lie was head of the community, the filing of the list in the Auditor's office under the Act of 1871, bound the community, though at the time of the filing the community may have been dissolved by the death of the husband. An assessment of property correctly described made in the ñame of the wife after the dissolution of the community by the death of the husband, is good as against the widow in community and her heirs, and the filing of the tax delinquent lists of property so assessed in the Auditor’s office under the Act of 1871, carried with, it as against the widow and her heirs a forfeiture oí her interest in the property. The widow in community as usufructuary is bound to see that the taxes are paid.

      The adjucUcatee of property, at, a tax, sale strictly such would not necessarily be protected from recovery of the same, in a petitory action brought by the owner of the property'by the prescription of three years because the tax purchaser had taken possession thereof and had held it for three years. If the sale was of a character such as to be absolutely null and void for radical nullities, the prescription of three years would not apply, otherwise if the sale was merely voidable for relative nullities.
    4. The purchaser o"f property sold by the State as being its property under a'tax adjudication or tax forfeiture to it would not be protected by the prescription of three years from a recovery of,the same by the owner in a petitory action, because of his having taken possession of the property under his title from the State and having held it for three years, if, at the time of the sale to him, the taxes had been paid' by the owner aiid the 'property under the ' ' law stood redeerded to the’owner.
    ERTIEIED from the Court of Appeals, Third' Circuit,'by the Judges thereof applying' for .instructions. .. ,

      Foster &-Broussard for'Plaintiffs.

      L. 0. Hacker for Defendants.
   Petitory action to recover immovable property in .the. town. of New Iberia, which defendants held.by deeds from.the,State under tax proceedings against plaintiff’s ancestors; which proceedings plaintiffs averred to be null and void conferring' no title. From adverse judgment. in. the District Court plaintiffs appealed to the Third Circuit Court of Appeals, which affirmed the judgment of the District' Court. Rehearing- being granted, the Court of Appeals certified certain questions to the Supreme Court under Article 101 of the Constitution, attaching- the pleadings and the original opinion of the Court of Appeals.

The following answers were given by the Supreme .Court and ordered to be certified back to the Court of Appeals for its instruction and guidance:

Nicholls, C. J.

Article 101 of the Constitution declares that the “judges of the Court of Appeals' shall have power to certify to the Supreme Court any question or proposition, of law. arising in any cause pending before them concerning which they desire the instruction of that court for its'proper decision, and, thereupon, the Supreme Court may either give its instruction oil the questions or proposition certified to it, or it may require that the whole record be sent up for its consideration, and, thereupon, shall decide the whole matter in controversy in the same manner as if it had been on appeal directly to the Supreme Court.”

It is obvious, from the reading of the article, that the questions or propositions submitted to the Supreme Court are questions predicated upon the specific facts of the particular case then pending before the Court of Appeals, and that it is 'not the duty of the Supreme Court to ascertain or fix the facts and conclusions of fact. For the purposes of expressing an opinion it has to take, as true, the facts of the ease as found by the Court of Appeals.

That this must be so is evident from the fact that the parties to the action are not bound by the findings of the Court of Appeals so found, but are entitled, under the concluding clause of the article, to apply to the Supreme Court (if dissatisfied with the judgment rendered) for a writ of certiorari, to have the record certified up to it for review and determination.

If the application be granted, this court should find itself in a situation to pass upon the facts an<j law of the case as if it had been carried before it directly by appeal from the District Court,'and not be confronted by its own findings of fact, fixed and declared by anticipation.

While the findings of the Court of Appeal are to be taken as true by the Supreme Court for the purpose of expressing an opinion at the request of that court, the Supreme Court must stand uncommitted as to the actual facts of the case, and also as to- the law thereof, if the facts should be ultimately to be found otherwise than as declared by the Court of Appeals, and should that difference' carry with it a change in the law of the caseras applicable to the actual state of facts.

We understand the Court of Appeals to inquire of this court: 1st. —Whether the fact that 'the list of delinquent taxes and tax payers, filed in the State Auditor’s office, under Act No. 42 of 1871, may have been recorded tardily in the office of the recorder of mortgages of the parish where the land is situated, or filed tardily in the Auditor’s office, would carry with it, as a result, the preventing- of the vesting in the State of the titles of the lands so returned as provided in that statute, when but for this fact the said titles would have so vested.

We answer that it would not have that effect.

We understand the question to refer exclusively to the situation between the delinquent debtor and the State, not to a case where the rights of third parties had intervened before the filing or recording of the delinquent lists.

Tlie rights of bona fide purchasers, or creditors, do not seem to have been involved in the present matter, as it is submitted to us.

We are not informed as to the precise time of the year 1873, when P. LeSeigneur died, nor in whose name the property stood assessed in the tax delinquent lists for taxes of 1873, which were filed in 1873, if filed in that year. Under the law as then existing, taxes of each year were levied upon an assessment made the preceding- year. If the husband’s name appeared on that list, under a proper assessment of the property made in his name while head of the community, the filing of the delinquent lists in the Auditor’s office, under the act of 1871, bound the community, though, at the time of the filing, the community may have been dissolved by the death of the husband. Caldwell vs. ITennen, 5 Rob., 20.

A correct assessment of property made in the name of the wife after the dissolution of the community by the death of the husband is good as against the widow in community and her heirs, and the filing of the tax delinquent list of property so assessed, in the Auditor’s office, under the act of 1871, carried with it, as against the wife and her heirs, a forfeiture of her interest in the property.

The widow in community, as usufructury, is bound to see that the taxes are paid.

The husband’s heirs would not be bound by such an assessment and the filing, under shell circumstances, of the delinquent list in the Auditor’s office.

Th/e next question asked of this court is whether, if the property involved in this litigation was forfeited to the 'State under the Act of 1871, the plaintiffs would not necessarily be barred from recovering it by reason of the prescription of three years ?

The circumstances under which this question of prescription is sub.mitted for an opinion are a forfeiture of the property to the State, under the act of 1871, followed by a sale of the same property to the defendant, at public auction, under Act No. — of 1880 and a taking-of actual possession by the defendant of the property purchased, and holding it for over three years.

The Court of Appeals is in error in supposing- that an adjudicatee, even at a tax sale strictly such, would necessarily be protected from a recovery of the property adjudicated in a petitory action by the. party owning the property at the time of the adjudication by the prescription of three years because the tax purchaser had, after the sale 'to him, taken actual possession of the property and held it for three years.

Whether he would he so protected would depend upon the character of the sale or adjudication made to him. If the sale should have been of a character such as to be absolutely null and void, and to entitle or authorize the original owner to ignore it and bring a direct petitory action to recover the property, the prescription of three years would not apply, but if the adjudication was only subject to attack for relative nullities, and that fact should be developed on the trial of the case, the plaintiff’s direct petitory action would fail, as the prescription of three years would bar an attack upon the tax title, and it wordd stand as a barrier blocking the way for a petitory action.

Assuming that certain property had been legally forfeited to the State for taxes, it would by no means necessarily follow that a subsequent purchaser from the State, who, under the sale had taken actual possession of property and held it for over three years, would be protected by the prescription of three years from a recovery in a petitory action of the same, by the party owning it at the time of the forfeiture.

If, for instance, subsequently to the forfeiture and prior to the sale to the third person the taxes had been paid by, or for, the owner, or the property had been redeemed by, or for, him, the sale by the State would have been made without any right or authority, and would convey no title to its vendee.

The vendee, under such circumstances, would not hold under a direct tax adjudication to him, but under a sale made by the State, as an owner of property, which really did'not belong to it, but to a third person.

The prescription of three years would not be applicable to such a Condition of affairs.

We referred, in Gulf State Land and Improvement Co. vs. Wade, 51 Ann., 260, to the differenece between a tax.sale strictly such, and a sale made by the State, as owner, to obtain from its purchaser an amount equal to the taxes which would have been upon it in the ownership of a private citizen instead of its own.


text:
    No. 13,241.
    Vicksburg, Shreveport and Pacific Railway Company vs. Miss Susie LeRosen.
    Syllabus.
    A elaimaht of land by adverse possession can not tack to the time of\his possession that of a previous holder wh^re the land is not included in the boundaries in the deed from such holder.-
    IN RE Vicksburg-, Shreveport and Pacific Railway Company applying- for certiorari or writ of review to the Court of Appeals, First Circuit, Parish of Caddo, State of Louisiana.

      Wise <& Ilerndon for Plaintiff.
    Respondent judges pro se.

      Holbert & Barret for Defendant.
   The opinion of the court was delivered by

Niciiolls, C. J.

The judgment of the Court of Appeals, rendered 011 appeal to it from the District Court of Caddo, which has been brought before us for review upon this application, was as follows:

“The facts at issue in this case are accurately stated by the district judge as follows:

“This is a suit to establish the boundary line between the right of way of the plaintiff and two lots, or parcels of ground, in ten aero Lot 33, owned by the defendant.

The right of way of plaintiff company is seventy-five feet in width from the centre line of its trade, and the plat filed by Frank W. Crane, city engineer, shows an encroachment of 37.84 feet by defendant’s enclosures on said right of way.

The only real defense is the prescription of thirty years. In 1858, the author of plaintiff company purchased from John M. Landrum, the right of way in question.

In July, 1859, Noah G. Tryon purchased from the same vendor, “a portion of ten acre lot No. 31, fronting eighty feet on the alley, according- to a plat filed March 21st, 1857, and running back to within seventy-five feet of the centre of the Vicksburg', Shreveport & Texas Railroad Company, grade as now established, and fronting eighty feet on the land on which the said railroad has the right of way,” etc.

In 1880, Mrs. M. J. Tryon, widow, purchased lots fifteen and sixteen of the Wise subdivision, lot fifteen adjoining the parcel of ground purchased by Noah Gr. Tryon from Landrum.

In 1887, W. A. LeRosen purchased from Mrs. Tryon the same parcel of ground purchased by Noah Gr. Tryon, from Landrum in 1859, “fronting eighty feet on the alley, and running back to the right of way of the Vicksburg, Shreveport and Pacific Railroad,” as per map recorded in Y. 888.

The vendor reserves the right to remove all improvements from said lots.

In 1888, Mrs. Tryon sold lot fifteen to W. A. LeRosen, reserving the right to remove all the buildings thereon. . Defendant claims title, through reserve conveyances, from W. A. LeRosen.

In the deed from Mrs. M. R. LeRosen, to defendant, the property is described in the same manner as in the deed from Mrs. Tryon to W. A. LeRosen, i. e., as “running back to the right of way of the. Vicksburg, Shreveport and Pacific Railroad.”

The articles of the Code .bearing on the question provide: Whether the titles exhibited by the parties, whose lands are to be limited, consist of primitive concessions or other acts by which property may be transferred, if it be proved that the person whose title is of the latest date, or those under whom he holds, have enjoyed in good or bad faith uninterrupted possession during thirty years of any quantity of land beyond that mentioned in his title, he will be permitted to retain it, and his neighbor, though he may have a more ancient title, will only have a right to the excess, for if one can not prescribe against his own title, he can prescribe beyond his title for more than it calls for, provided it be by thirty years possession. C. C., 859.

When a person has once acquired possession of a thing by the corporeal detention of it, the intention he has of possessing suffices to preserve the possession, in him, although he may have ceased to have the thing in actual custody either himself or by others. C. C., 3442.

“To be able to acquire possession of property, two distinct thing's are requisite.”

1. The intention of possessing as owner.

2. Corporeal possession of the thing. C. G., 3456.

“As to the fact itself of possession, a person is presumed to have possessed as master and owner, unless it appears that the possession began in the name of and for another.” 0. 0., 3488.

“The actual possessor, when he proves that he has formerly been in possession, shall be presumed, also, to have been in possession in the intermediate time.” 0. 0., 3492.

“The possessor is allowed to make the sum of possession necessary to prescribe, by adding to his own possession that of his author, in whatever manner he may have succeeded him.” C. C., 3493.

Applying these precepts of the Code to the facts of this case, it remains to determine and fix the rights of the parties.

In order to push the original boundary of the defendants7 property, by enclosures on to the property of the plaintiff, it is incumbent on the defendant to fix the fact of possession by strong and cogent testimony for the length of time required by law.

In order to enable one to prescribe beyond the limits of his own title, he must have possessed as owner for the longest prescriptible period known to the law — thirty years.

In the original purchase by Noah G. Tryon, -from Landrum, the extent of the right of way of the plaintiff company is fixed at seventy-five feet from the centre of the grade as then established.

In 1887, Mrs. Tryon sold to W. A. LeEosen the same property, and defined the boundary as the right of way of the railroad. The theory on which the district judge seems to' have decided the case is that this was recognition of the boundary as fixed in the original purchase of Tryon from Landrum, and, therefore, that this was an acknowledgment that the right of way extended into the enclosure of the defendant, and defeated the plea of prescription. He cites, in support of his position, the case of City vs. Shakspeare, 39 Ann. 1033, and says:

“In this case at bar, the deed'of Mrs. Tryon specifically describes the southwest line of the right of way belonging to plaintiff, as the boundary of the lot conveyed. Under such a deed, how could it be contended that Mrs. Tryon convej^ed a part of the right of way to LeEosen ?”

We can not follow our learned brother in his process of logic. There is no contention, as we understand and appreciate the issue, that the deed of Mrs. Tryon to LeRosen, in terms, conveyed the property. If this was the case, the defendant would only have need of the prescription of ten years, and would be dispensed with further proof, and the plaintiff relegated to another form of action.

The contention of the defendant is that the right of way of the plaintiff company has not been marked by any visible signs or monuments, and that Mrs. Tryon possessed up to the old fence, and delivered same to him, and that both have possessed for more than thirty years. The deeds of the parties are only aids in determining the extent of the possession, and are only consulted in actions of boundary for such purposes.

The case, in our opinion, does not hinge on any stipulations in the title deeds of the parties, but is to be determined alone on the plea of thirty years’ prescription, tendered by the defendant.

While Tryon’s deed stipulates that the lot extends back to within seventy-five feet of the centre of the grade, he appears to have taken possession of some thirty-seven feet of the right of way of the plaintiff by enclosing the same with a fence.

Mr. Guynemer testified that he lived on the property in 1874 and 18T5, and that there was a fence on the back within thirty-five or forty feet of the centre of the track; that he “played there as a boy quite often all around that back fence,” and “climbed a little oak tree that used to set there in one corner.”

That the fences then were in a decayed condition.

Mr. David LeRosen testified that he, or his family, have owned the property for thirteen years, and that when they bought it there was an old fence back there on the line indicated by the surveyor; that there was an old orchard back there, and also a large cottonwood tree, supposed to have been planted by Mrs. Tryon; that the old fence on the back was pointed out as the boundary line between the railroad and the property.

Taylor Segur testifies that he has known the property since 1865> and that the fence is now where it was then.

Mr. James Heffner testifies that he has been living here since 1864 or 1865, and that he is familiar with this property, and lived there in 1867 or 1868; that the fence to-day is about where it was then; that the property has been enclosed continuously since; that some changes may have been made in the location of the fence; that, in 1867, it was an old fence; that he passed along the railroad frequently and never noticed the absence of a fence at the place where it now stands, but has seen it since he left there.

Emile Wortman testifies that he remembers back to 1865, and that the fence occupies about the'place now that it did in 1865, and that the line has never been materially changed; that he is a tinner by trade, and frequently goes on the track of the railroad, which is used frequently by pedestrians, and has never known a time since 1867 that there was not a fence back of the Tryon lot, where it is now located.

Mr. Barret testified that he has known the property since he was a child, say 1867, and that he does not remember the time when there was not a fence about where the fence is now ;• that he is unable to say that there has not been a time, since 1867, that there was no fence, but if there was a time when there was no fence, he can not recall it.

The countervailing evidence on the question of the location of the original fence, and its being repaired and moved westward, is that of Messrs. Wise and ITerndon, both of whom testify that along in 1874 there was a considerable ditch running across the eastern portion of Mrs. Tryon’s property; that, in consequence of this ditch, Mrs. Tryon had taken the fencing that had originally been near to cut off the railroad, and moved it back some distance, and after the ditch filled up the fence was moved back.

On cross-examination Mr. Wise states that, four or five years afterward, she moved the fence back, and that the orchard extended nearly back to the old fence line.

Mr. Herndon says that, in 1874, there was an old fence back there some thirty or forty feet from the railroad; that it was an old and very much decayed fence, and that the fence is now practically located where the old fence was.

Mr. Guynemer, when recalled for the plaintiff, testified that the fence was on the same location in 1879 when he moved back there.

So, to our minds, the ease hinges entirely on a question of fact — the possession of thirty years in the defendant and his authors. But for the short time that the fence appears to have been moved back, on account of the ditch, the case would be clearly with the defendant as to the boundary of the original Tryon track.

The deed of defendant, referring to the right of way of the plaintiff, as the eastern boundary, subordínales its extent in determining the quantity of land conveyed, and not including by its terms any portion of the right of way, the prescription of ten years does not apply, and possession of thirty years has not been shown to any portion of the right of way east of lot fifteen, and that branch of the case is with defendant.

As to the other. In the case of Provost Heirs vs. Johnson, 9 M., 123, the Supreme Court held that when a person claims by possession alone, without showing- any title, he must show an adverse possession by enclosure, and his claim will not extend beyond such enclosure.

In the case of Bernard vs. Show, 1 Martin, N. S., 480, the facts proved established the plaintiff’s right of possession to the whole body of land sued for; the defendant, however, g-ave in evidence his possession and cultivation of a field of fifteen arpents, but neither the pleading, nor the evidence, ascertained the particular spot where his possession was exercised, and the defendant’s pretentions are disregarded.

In the case of McDonough vs. Childress, 15 La., 566, the court held that it- was necessary, in an action of possession, not only to show acts of limited and restricted possession, but also to establish, by legal evidence, the extent and full limit of the property possessed. 19 L., 251.

In Wilson vs. Martin, 10 Ann., 327, it was said: “Possession animo domini forms the basis of this species of prescription; it must be, at least in its commencement, a corporeal possession, and must be continuous, uninterrupted, peaceable, public and unequivocal.”

Again: “Such a possession, without any title whatever for thirty year's, will enable the possessor, who invokes the plea of prescription, to hold dominion over the land against the world. With a title trans-lative of property, and aided by good faith, a possession of a like character for a period of ten years will suffice.”

Possession in all cases is a mixed question of fact and law. It is determined, very largely, by the nature and character of the property, and the use for which it is destined. Chamberlain vs. Abadie, 48 Ann., 569.

It is eveident, from the different provisions of our Code, that outlaws on this subject recognize two species of possession, natural possession and civil; natural possession, which may be called possession in fact, is when a man detains a thing^corporeally, as by occupying a house or cultivating a field; and civil possession, or possession in right is, when a person ceases to reside in a house, or cultivate the field, which lie once occupied, but without abandoning his possession. 0. 0., 3421, 3428, 3429.

Possession is acquired by the actual and corporeal detention of the property; this is the natural possession, or possession in fact; and it is preserved and maintained by the mere will and intention to possess; and this is the civil possession or possession in right. Ellis vs. Provost, 19 L., 251.

Now, in order to acquire prescription by the possession of thirty years, without title, it is necessary that the possessor should have held the thing in fact and in right as owner.

In order, however, to complete a possession already begun, the civil possession shall suffice, provided it has been preceded by actual possession. C. C., 3487.

So it is with regard to the right of possession. “When a person has once acquired possession of a thing by the corporeal detention of it, the intention which he has of possessing suffices to preserve the possession in him, although he may have ceased to have the thing in actual custody, either himself or by others.” 0. C., 3442, 3433, 3444.

I-Iow is this possession lost?

“Possession is lost with the consent of the possessor.”

“1. When he transfers this possession to another with the intention to divest himself of it.

“2. When he does some act which manifests his intention of abandoning possession, as when a man throws into the street furniture or clothes, of which he no longer chooses to make use.” C. C., 3448.

Again: “A possessor of an estate loses the possession against his consent:

“1. When another expels him from it; whether by force or driving-him away, or by usurping- possession during his absence and preventing him from re-entering.

“2. When the possessor of an estate allows it to be usurped and held for a year without, during that time, having done any act of possession, or interfered with the usurper’s x>ossession.”

All of the articles of the Code on the subject matter must be construed together; and applying the pirinciples announced in them we are of the clear conviction that the case is with the defendant on plea of prescription of thirty years.

The evidence is overwhelming that the Tryon lot was enclosed back to the railroad cut, or the line now' indicated as the location of the fence, along about 1864, and trees planted, and even though the fence may have fallen, and the trees decayed, yet all were potent witnesses of the fact of actual possession. Whilst the fence may have been moved from the locus in quo for a few years, yet the fact remains that the railway company did not take possession of the territory in the meantime, and the moving of the fence back, on account of the encroachment of the ditch, was not the doing of any act, on the part of the claimant, which manifested an intention of abandoning the property.

Mrs.' Tryon appears to have watched the efforts of her more progressive neighbor, Mr. Wise, to fill the ditch or stop the wash on his property, the effect of which was to fill the wash on her own property, and then it was that the fence was set back to its ancient limits.

Surely this was not such an abandonment as would have the legal effect of interrupting the course of prescription within the contemplation and meaning of the Code.

The remains of the old fruit trees were sentinels, warning the officials of the road of the possession of an adverse claimant.

For more than a quarter of a century the railroad officials have done no acts manifesting dominion over this property, and the boundary marked by the original fence has been looked to for more than thirty years as the limits of the property.

A boundary so marked and recognized for thirty years, and more, will not be disturbed at this late day.

Has there been such a recognition of the right of way of the company as would stop the current of prescription? We think not.

The recognition contended for by plaintiff, and sanctioned by the judge, is only contained in the recitals of the deeds to the defendant.

As we said, in the McCloud case, the road has never planted any posts -or otherwise monumented the extent of its possession. The extent of its limits have been invisible and undefined. The only tangible sign of the extent of its possession has been the excavation in the earth along where it passes. There is no law that fixes the width of the right of way of a railway company, and when we sell by reference to the right of way, unless there be some signs to mark the limits, the reference could hardly have any legal significance except the part actually occupied by the road-bed, dump, or cut.

If the right of way was a recognition of the ownership of the company in the locus in quo, where did it begin, and where did it end? A person could hardly recognize the ownership of another in specific property, when there was nothing' to show the identity of the property.

Therefore it seems clear that a reference to the right of way in the recitals of the deed, as the eastern boundary of the property conveyed, could not be such a recognition of the limits called for by the plaintiff’s title proper, as the true boundary, or would serve to stop prescription. If, at the time, the right of way had been marked out, then the defendant would have been concluded.

The truth of the matter is, that no one knew exactly how far the right of way did extend. The space of ground was never needed until recent years, when the officials began to investigate the extent of its possessions.

In this case the proof seems to be clear that all the parties looked to the old line of fence as the true boundary, and the extent of the right of way, of the railroad company.

Any reference to a monument as a boundary, to be binding and conclusive, the same would have to be well marked so as to be of easy identification. The legal advisers of the company knew the character of recognition that would silence the plea of prescription. They offered to lease the locus in quo to the defendant. This would have been the kind of recognition that would have set at naught all the contentions of the defendant.

Our conclusion is, as to the Tryon lot, that the case is with the defendant, and the judgment appealed from will be readjusted accordingly.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be amended; and it is now ordered, adjudged and decreed that the line marked “fence” on the plat made by F. W. Cane, on the back of the lot marked “Mrs. Tryon” be, and is hereby decreed to be the true boundary line between the right of way of the plaintiff and said lot owned by the defendant; and, as thus amended, and in all other respects, the judgment appealed from is affirmed, the appellee to pay costs of appeal.” .

OPINION.

We do not think that it can bo denied that the boundary line, as fixed by the survey made under order of court, and adopted by it, and made the basis of its judgment, is the true boundary line between the properties of the plaintiff and the defendant according' to their written titles, nor do we think there is any claim set up that those titles conflict in any maimer with each other.

Defendant’s contention is'that she and her authors have had, for a long time, possession of the strip of land in controversy herein, and, by reason of that fact have acquired the ownership of the same by the prescription of thirty years.

The defendant, Miss Susie LeRosen, holds her title from an act of sale of date of the 2nd of April, 1896, by purchase from Mrs. Mattie LeRosen, wife of David LeRosen.

The property purchased was described as lots one, two and three, of block one, of ten-acre lot, thirty-one, of the city of Shreveport.

Also:

A portion of said ten-acre lot thirty-one lying immediately in rear of lots one and two of said ten-acre lot, said land fronting eighty feet on the alley, and running back to the right of way of the Vicksburg, Shreveport and Pacific Railroad, as per map recorded in conveyance book, page 838.

Also:

Lot fifteen (15) of said ten-acre lot thirty-one (31), as per said map, together with all the buildings and improvements on all of said property.

The portion of the property with which we are concerned at the present time is that secondly described, the description of which we have placed in italics.

The title by which Mrs. Mattie R. LeRosen held is not in the record, but it is conceded that her title was derived from one John M. Landrum to N. G. Tryon, and from him by conveyance to different parties down until it reached Mrs. LeRosen; the description of this particular property in all of these conveyances being substantially identical.

The act from Landrum to Tryon was of date of the 3rd of July, 1859.

The railroad right of way referred to in the different acts of sale was acquired by purchase from Landrum also, but prior to the sale by him to Tryon.

The defendant claims that the back line of her tract should be extended thirty-seven feet further toward the railroad track than where it is placed by the survey filed, and this claim is predicated upon the contention that Tryon and his wife (the latter it would seem having acquired the ownership of the property at one time, though when and how does not appear) and the various owners of the property prior to the purchase made by the defendant, Miss Susie LeRosen, had taken corporeal possession of these thirty-seven feet and held possession of it continuously and successively until it was conveyed to her in 1896.

That she herself had had corporeal possession since 1896, and that, under Article 3493 of the Civil Code, she is entitled to add to her possession that of all the parties who had had possession of these thirty-seven feet commencing with N. G. Tryon, and running down to herself.

That this addition or connection of different possessions would show a possession adverse to the plaintiff of over thirty years, which would enure to her benefit and vest the title in her by the prescription of thirty years.

Articles 3493, 3494 declare that “the possessor” is allowed to make the sum of possession necessary to prescribe by adding to his own possession that of his author, in whatever manner he may have succeeded him, whether by an universal or particular, a lucrative, or an onerous title.

“By the word ‘author,’ in the preceding article, is understood the person from whom another derives his right, whether by a universal title, or by succession, or by particular title, as by sale, by donation, or any other title onerous or gratuitous.”

If a person, holding a written title calling for a tract of ten arpents fronting on a certain stream by a depth of forty arpents between parallel lines, should have taken actual corporeal possession of property to the depth of fifty arpents, and hold it for five years, and then sell it to another person, describing it as a tract of ten arpents, fronting on the stream by a depth of fifty arpents between parallel lines, and the vendee should talce actual adverse possession to the depth of fifty arpents, it may be that if a contest should arise between the actual owner and the second possessor, and the rights of parties were to be settled by the rules of prescription, the possession of the author, beyond his title during the five years, might enter as an element or factor to some extent in determining the question of prescription as to the vendee, but if the vendor, though holding fifty arpents in his possession, bad, when selling- to his vendee, described the property-sold as a tract of ten arpents front on the stream, by a depth of forty arpents between parallel lines, the vendee, under such a specific written title, could not pretend, in any future contest with the actual owner, that he could for the purpose of pleading- prescription for the acquisition of this additional depth of ten arpents to the tract, add the possession of his vendor of that particular property to his own possession.

He could not do so for the very obvious reason that the vendor did not undertake to sell him the tract to this additional depth, and could, in no sense, be held to be his author.

He would only be his author to the extent of the title conveyed.

If we were to assume that after the vendee should have held, fox-several years, actual possession of this property beyond the title conveyed to him, the actual owner should have instituted proceedings to restrain and keep him within his legal rights, could the possessor, as a legal right, call the vendor in warranty to defend either his title or his possession %

We think not.

Neither ownership, nor possession, would have been transferred to the vendee under his act of purchase beyond its terms.

If there was any continued adverse possession of the property after the sale, it would be the adverse possession of the vendor up to the time that his adverse possession was ousted by that of a third person, or abandoned.

There is a very great difference between prescribing inside of a title for more than the vendor owns, and prescribing outside of the title for more than the vendor owns, or has conveyed.

In the first case the prescription applicable would be that of ten years, the purchaser adding possibly to his own possession for the purpose, to some .extent, of prescription, the antecedent possession of his vendor (although the character of the two prescriptions would be different, one being- the prescription of ten and the other of thirty years), while the prescription applicable to the second case would be that of thirty years, which prescription, resting upon his own separate and independent adverse possession (a possession not in privity with that of his vendor), would take date only from the commencement of that adverse possession. Mays vs. Witowsky, 46 Ann., 1480.

The samo principle is recognized in other States of the country, and is announced in the American Digest as follows:

“A claimant of land, by adverse possession, can not tack to the time of his possession that of a previous holder, where the land is not included in the boundaries in the deed from such holder. Smith vs. Rich (Sup.), 30 N. Y. S., 167; 80 Hun., 287; Am. Dig., 1895, pp. 58-116. See also Adkins vs. Tomlinson, 121 Mo., 487; Albars vs. Fitzgerald, 87 Wis., 516; Carson vs. Dundas, 39 Neb., 603; Lows vs. Shaffer, 24 Or., 239; Am. Dig., ss. 127, 130.”

Whatever may have been Mrs. Tryon’s rights under her possession of any part of plaintiff’s right of way, she transferred none of such rights to LeRosen,nor did Mrs. Mattie LeRosen transfer to Miss Susie LeRosen any rights of possession which she may have had, and the latter can not avail herself of the time of possession of any of the antecedent parties holding title under the same distinct and specific written title, which was conveyed to her of any strip of land beyond the calls of the deed.

The adverse possessions which may have been held by these different antecedent owners were separate and distinct from, and not in privity, with .each other, and so far from being cumulative or connected, the actual possession of the predecessor was ousted by the subsequent adverse possession of his vendee.

A good deal of discussion has been made as to the facts and circumstances which go to constitute an adverse possession, and those which go to constitute an abandonment of such possession after having once commenced, but under the view which we have taken of the principles of law in this particular case, we deem a decision of the questions unnecessary.

The evidence so far from disclosing a continuity of adverse possession, shows distinct breaks at each change of ownership through the different purchases of the same specifically described and defined property.

We are of the opinion that the opinion of the District Court, appealed from, was correct, and that the Court of Appeals erred in modifying it.

For the reasons assigned, it is ordered, adjudged and decreed, that the judgment of the Court of Appeals, in so far as it amended or modified the judgment of the District Court, appealed from, is hereby annulled, avoided and reversed; and it is ordered, adjudged, and decreed, that the said judgment of the District Court, appealed from, be, and the same is hereby affirmed.


author: Nioholls, C. J.

text:
    No. 13,245.
    H. Weston Lumber Co. vs. Anderson & Allen et als.
    IN RE Fidelity and Deposit Company, of Maryland, applying for certiorari or writ of review to the Court of Appeals, for the Parish of Orleans, State of Louisiana.

      Purnell M. Milner for Petitioner.
   The opinion of the court was delivered by

Nioholls, C. J.

It is not considered that this case presents those exceptional features, whether of law or fact, which alone, under the rule announced in repeated decisions, justify the granting of the writ of review, and the same is, accordingly, denied.

Monroe, J., takes no part.


author: Nicholls, ' C. I.

text:
    No. 13,269.
    The State of Louisiana vs. Adam White.
    Syllabus.
    1. The leaving of the Jury box by a Juryman during a recess of court to take a drink of water, from a bucket on the opposite side of the court room, is not such a separation of the jury during the trial, as to furnish cause for reversal when the juryman was constantly in the view of a part of the jury and of the deputy sheriff in charge of the jury, and he held communication with no one after leaving and while returning to his seat.
    2. The presence of the accused either at the refixing of his case for trial or at the trial of a motion for a new trial is not essential, though testimony be taken on behalf of defendant at the last mentioned trial.
    3. Where the minutes of the court of the day of the trial of a criminal case commence with an entry opposite the title of the cause and in its recital of the first proceeding in the action discloses the presence of the accused in court at the time and continuing without break recites all the various steps of the trial on that day and closes with the bringing in of the verdict by the jury and ends with the words “the accused being present in court”, his continuous presence in court during the proceedings referred to, and covered by the minutes, will be presumed.
    4. Where the complaint urged by an accused on appeal is, not that he was in fact not present, but that the record does not disclose the fact of such presence, the Supreme Court, if in doubt as to the fact, will not upon the strength of that doubt, set aside the verdict of the jury and reverse the judgment, but will hold the case open, until by proper proceedings, the actual facts can be ascertained.
    5.The fact that one of the jury commissioners who assisted in drawing the jury had not at that time taken an oath of office, is not properly brought’ before the Supreme Court on a motion in arrest. The oaths of the jury commissioners and the proces verbal of their deliberations do not form part of the record of each individual criminal cause and do not come up on appeal unless formally introduced in- evidence. To establish the fact stated evidence has to be introduced, and the motion in arrest covers only objections apparent on the face of the record. Matters not properly the subject of a motion in arrest do not become such by the introduction of evidence without objection. The matter complained of should have been urged in a timely challenge to the array or motion to guash and cannot be postponed until after verdict and then presented in a motion in arrest.
    APPEAL from the Sixth Judicial District Court, Parish of Rich-land. Ellis, J.

      Milton J. Gunningham, Attorney General, and L. A. Thompson, District Attorney, for Plaintiff, Appellee.

      George Wesley Smith for Defendant, Appellant.
   The opinion of the court was delivered by

Nicholls, ' C. I.

Defendant, sentenced to death 'under an indictment for murder, has appealed.

In an application for a new trial he unsuccessfully urged that the jury which tried him had separated during the trial; that the jury had reached their conclusion with undue haste, and without proper deliberation, in a matter involving the life and death of a fellow-being, and that this haste was due to the disagreeable and uncomfortable condition of the room which had been assigned to the jury for their deliberations, and that the jury were not warranted, under the evidence, in finding that the homicide had been committed with malice aforethought.

These grounds all involved questions of fact, which the lower court determined against the defendant.

We do not find error, in the ruling of the District Court.

The separation of the jury, charged, consisted in one of the jurymen leaving the jury box while the court was in recess, walking across the court-room and taking a drink of water from a bucket which was in that room.

It was shown that the juryman did not speak to any one either while going to, while at, or while returning from the bucket. The person in charge of the jury testified to that effect; that he saw the whole transaction, and that the juryman did not get out of his sight; that he may have got out of sight of some of his fellow-jurymen, but that he was always in sight of some of them.

We see no occasion for reversing the verdict on this ground assigned.

It is certainly the duty of a jury, acting upon a murder case, to act with the greatest care, caution and deliberation, but it would be difficult to assign any particular time within which its conclusions should be reached.

The evidence might be so direct, clear, positive and overwhelming, in a particular case as to call for no great amount of discussion.

In the case at bar, the jury were in their room for about twenty to twenty-five minutes. Accused attempted to show that the quickness with which the verdict was reached was due to the fact of the disagreeable and uncomfortable condition of the jury room.

An investigation was gone into, without objection, as to the facts touching- this complaint, the members of the jury being placed upon the stand and questioned on the subject.

Not one of the jurymen declared that his judgment was influenced in the slightest degree by the condition of the jury room.

It was in the province of the jury to determine whether the homicide was committed with malice aforethought.

The district judge having agreed with the conclusions of the jury, and refused a new trial, the matter is beyond our control.

Defendant moved in arrest of judgment.

The reasons were:

First. — That Lem Scott, one of the Jury Commissioners, was never sworn as such, and this makes the proceedings of the Jury Commissioners an absolute nullity.

Second. — The records do not show that the defendant was present during the trial, nor the refixing of the case for trial.

Third. — The prisoner was not present during the trial of his motion for a new trial, and he did not waive this right either personally or through his attorney.

The trial of this motion involved the taking of testimony, and the question of the guilt or innocence of the accused. Appellant is correct in stating that the records do not show that the accused was present either at the refixing of his case for trial of his motion for a new trial, or that on the trial of this motion testimony was taken on behalf of the defendant.

We do not think that the presence of the accused, on either of those occasions, was essential. State vs. West, 45th Ann., 934; State vs. Hardaway, 50th Ann., 1345.

The minutes of the court of September 5th, 1899, opposite an entry of the title of the cause recite: “In this case there was a motion and affidavit for continuance filed, taken and tried, and the District Attorney admitted that the witness (a certain witness) asked for, if present, would swear to the facts set forth in the affidavit, the accused being present ” and then go on in the same entry to recite the different proceedings which occurred in the case on that day, the drawing of the jury, the hearing of evidence, the argument of counsel, the charge of the court, the retirement and return of the jury, and the verdict, and at the end of the entry states: “The accused being present in court.”

It would, unquestionably, have been better for the elérk to have noted in the opening portion of his minutes, opposite each different proceeding taken, the fact of the defendant’s presence in court thereat, but we are not prepared to set aside the verdict of the jury, and the sentence of the court, on the minutes, as .they stand, particularly as it is not claimed, or urged, that, as a fact, the accused was not present, but that the records do not show that he was present.

With the recital of the minutes of the court stating at the beginning of the entry, and at its close, the presence of the accused in court, we do not think we would be warranted in applying the maxim "quod non apparet non est.”

The District Attorney, however, should have caused the minutes to be made more specific when this motion in arrest was filed, and not have left the matter to be determined by construction of the minutes.

If we were in doubt, as matters stand, as to the actual facts, we would not set aside the verdict and reverse the judgment on the strength of that doubt, but we would hold the ease open until-by proper proceedings, the actual facts could be ascertained, and we will still have that matter examined into if, on an application for a rehearing, the accused should declare that, as a fact, he was not present at the various stages of his trial on the 5th of September, 1899.

The fact that Lem Scott, one of the Jury Commissioners, may not have taken the oath as such after his appointment in 1898, by the district judge, is not brought properly before this court on a motion in arrest of judgment.

That motion covers only objections apparent on the face of the record (State vs. Chandler, 36 Ann., 178). To establish the fact stated, evidence had to be introduced.

The oaths of the Jury Commissioners, and the proces verbal of their action, do not form part of the record of each individual criminal case tried in the District Court, and do not come up with the transcripts unless formally introduced, and in some way -made part of the proceedings. State vs. Watson, 31 Ann., 380; State vs. Jackson, 36 Ann., 97.

It may be, on suggestion made in the District Court, that a Jury Commissioner has not taken the required legal oath, that, the court might have taken judicial notice of such fact, hut matters of which the District Court may take notice are by no means necessarily taken judicial notice of by the Appellate Court. Matters not propertly the subject of a motion in arrest do note become such by introduction of evidence without objection.

The matter complained of here should properly have been urged by a timely challenge to the array, or in a motion to quash, and not postponed until after verdict, and then set up on a motion in arrest.

It is then too late.

33rd Ann., 1404; State vs. Jackson, 36th Ann., 97; 36th Ann., 178; State vs. Tisdale, 41st Ann., 338; State vs. Miles, 31st Ann., 825; State vs. Ashworth, 41st Ann., 683; State vs. Leftwich, 46th Ann., 1194; State vs. Magee, 48th Ann., 903; State vs. Collins, 48th Ann., 1454; State vs. Pruett, 49th Ann., 284.

The indictment against the defendant was presented and filed in court on the 30th of August, 1899; the accused pleaded “not guilty’" on the next day and asked for trial by jury.

The case was tried and a verdict rendered on the 5th of September. 1899, and the motion in arrest filed on the 6th of September, 1899.

It is not claimed that the accused and his counsel were not as well aware, prior to the trial of the cause, that Lem Scott had not taken the oath as a Jury Commissioner, under his 1898 appointment, as they were on the 6th of September, or that their means of ascertaining that fact were not as good before that time as after (State vs. Tisdale, 41st Ann., 344; State vs. Wittington, 33rd Ann., 1403, 1404). Nor is it claimed that any -fraud or wrong was committed by the jury commission, nor any actual injury done to the accused. The record discloses no challenges to any member of the jury. We think that a practice permitting' the filing, after verdict, of an objection of this character would be prejudicial to the proper administration of justice (State vs. Collins, 48th Ann., 1454), and, besides this, we have'no reason for supposing that the fact complained of worked, in reality, any injury to the accused. State vs. Magee, 48th Ann., 903.

We do not think the facts urged in the motion in arrest call for a setting aside of the verdict or reversal of the judgment. State vs. Sterling, 41st Ann., 679; State vs. Washington, 33 Ann., 897; State vs. Ashworth, 41st Ann., 683; State vs. Leftwich, 46th Ann., 1195.

We find no grounds for reversal, and the judgment is, therefore, affirmed.