author: Fenner, J,

text:
    No. 9387.
    T. C. Sachse vs. Citizens’ Bank et al.
    An assignment of property to a third person without other considerations than in trust for the benefit) of creditors, exocuted in this State, belongs to a class of tenares not recognized by the low of Louisiana, is of no effect, and binding on no one.
    "Where such assignment lias been made co a non-resident by a debtor against whom an order of seizure and sale has "been taken out, and is immediately followed by an injunction suit in the name of such assignee, to restrain the execution of such order, and by an application to remore the cause to the Federal Court, such assignee will be regarded as a mere nominal and collusive party, representing no interest but that of the assignors, the proceeding will he treated as a mere device to gain delay by such removal, and the order of removal should be denied.
    A PPEAL from the Ninth District Court, Parish of Tensas. Youn<j,S.

      Farrar & Kruttsehnitt and Wade 7?. Young for Plaintiff and Appellee.

      Miller <& Finney and Steele <& Garrett for Defendant and Appellant.
   On Motion to Dismiss

The opinion of the Court was delivered by

Fenner, J,

This is an appeal from an order of removal of the caúselo the Federal Court. The judge, having recused himself, appointed an attorney to act as judge ad hoe, who sat on the trial of the petition for removal and rendered in open court the order of removal and also the order granting an appeal from the same. These orders were not signed, but were duly entered on the minutes of the court, as appears from the record certified by tlie 'clerk of the court.

The ground of the motion to dismiss is that the orders of removal and of appeal were not sighed by the judge ad hoe, and that the minutes of the court upon which said orders were entered were not signed by him, but by the regular judge of the court.

The orders, being rendered in open court and entered on the minutes, were of a character not requiring independent signature. The correctness of the minutes is sufficiently attested by the certificate of the clerk and the signature of the regular judge, who doubtless signed them because the proceedings in this case were probably but a part of those of the day for which the minutes were kept.

The appellee’s objection is equivalent to saying that he has obtained no valid order of removal. If that be true, our action on the merits will either secure him one, which he desires, by affirming the ordCr, or in case of reversal, will leave him in no worse case, than that in which Ms own contention places him.

The motion to dismiss is, therefore, denied.

On the Merits.

The Citizens’ Bank, a Louisiana corporation, sold to A. Cohn and D. Morris, both citizens of Louisiana, a plantation in Tensas parish, and received in part payment of the price certain mortgage notes, secured by vendor’s privilege and mortgage evidenced by authentic act, importing confession of judgment and also containing the pact de non alienando.

These notes having fallen due and being unpaid, the bank proceeded via exeeuiiva in the district court of Tensas parish and obtained an order of seizure and sale, in strict conformity to the laws regulating such proceeding.

The order was issued on the thirteenth day of December, 1884.

On the seventeenth of December, 1884, the defendants in that suit, Colin and Morris, executed an act, known in the common law States as a general assignment for the benefit of creditors, purporting to assign and convey to one T. C. Sachse, of Alabama, all their property, including the plantation under seizure by the Citizens’ Bank, “the consideration of this transfer and conveyance” being, as declared in the act, “an assignment in trust for the benefit and advantage of the creditors,” etc.

Sachse does not appear as a party to the act, does not sign or accept the same, and, for aught that appears, was at his home in Alabama, in blissful ignorance of the responsibilities that were being cast upon him. Yet, on the following day, the instant suit was filed in his name, being a petition for an injunction restraining the execution of the order of seizure and sale issued at the suit of the Citizens’ Bank, and for other relief not necessary to specify. The affidavit for the injunction is signed by the attorney-at-law who brought the suit.

Shortly thereafter the same attorney filed, in the name of Sachse, a petition forrera oval of the cause to the Federal Court, furnishing bond therefor, signed “T. C. Sachse, assignee, per the attorney.” Wemention these matters merely as a statement of the proceedings and as showing the absence and lack of possession of Sachse, without.the slightest reflection upon the conduct of the attorney, who doubtless felt himself properly authorized to act as he did. The close concatenation of these successive steps evinces the sole purpose and object from beginning to end, which evidently were no other than to obtain an injunction in the name of a citizen of another State and then remove the suit te the Federal Court. It is the latest development of the fertility of delinquent debtors in devising means to delay and hinder the pursuit of creditors.

The device, however, is too transparent to deceive any one.

The law of Louisiana has provided a summary and rapid remedy for the enforcement of mortgages evidenced by authentic act, importing confession of judgment. C. P. 732 to 753.

It authorizes the creditor to obtain an order of seizure and sale upon three days’ notice to the debtor. The latter is allowed to arrest the sale by an injunction based on grounds specified by filing an opposition in the case, supported by his oath, but without bond. This is intended to be strictly an ancillary proceeding in the same case, and the law expressly requires that it shall be disposed of summarily, the result being that if the defendant prove sufficient grounds, the judge shall “revoke the order of seizure (Art. 742), and if he fail, “the sale shall proceed.” Art. 743.

Now, it is evident that, if the debtor can concoct any scheme by which, without any real alienation or contract of any kind, he can procure a citizen of another State to take out this injunction and secure a transfer of that suit to the Federal Court, he evades the summary proceeding prescribed by our daw and obtains the very delay which that law is framed to prevent; because, under system of practice prevailing in the Federal Courts the injunction suit falls on the equity side of those tribunals and must submit to the dilatory modes of proceeding there prevailing. Watson vs. Bondurant, 103 U. S. 206.

This was the evident object and would be the effect of the plan sought to be carried out in this case. It is apparent upon the face of Sachse’s petition that he is a mere nominal and collusive party, under an assignment without consideration and conveying no title or interest whatever; that he is neither owner nor possessor of the property, and represents nobody but the assignors, who are residents of the State of Louisiana.

Such is the operation of the law of Louisiana upon the assignment under which Sachse acts.

In the language of Mr. Justice Rost, in the celebrated case of Succession of Franklin, 7 Ann. 412, it “ belongs to a class of tenures familiar in the other States of this Union, where the common law prevails, but unknown to the laws of Louisiana. And the jurisprudence regulating and defining the almost infinite, variety of those tenures, and the rights and obligations arising under each, forms one of most important and intricate portions of that artificial system of laws. I do not see the possibility of recognizing trust estates here, without letting in all the law which regulates that peculiar tenure of property.”

In the same case, Chief Justice Eustis said : “I have no knowledge of any trust estate, created under the laws of this State, nor of any case in which the legality of such an estate has been recognized l>y our courts. There are cases in which, assignments of insolvents, residing out of the State, have been recognized, and foreign assignees have been permitted to sue for and recover property to which the3r were entitled, for the benefit of creditors. But I am not aware of any trust estate created in Louisiana, which has been recognized in Louisiana as alegal tenure, adversely to third persons having an interest.”

These views have recognized limitations not necessary to specify here, but as applied to such an assignment as here presented, they are correct.

Our law provides the mode in which a debtor may assign his property for the benefit of his creditors, and that is by a judicial cession. C. f!. 2170, et iseq.

An assignment, such as thathere presented, is of no effect, and is binding on nobody. Even the creditors, for whose benefit it purports to be, owe it no respect, but could seize the property as that of their debtors without regard to such assignment. It is, simply, what Chief Justice Eustis calls “an impossible title.”

We have not escaped the reflection that, in our foregoing remarks, we are anticipating questions which would naturally arise for decision in Sachse’s suit itself. But they are proper, as reasons for concluding that Sachse is a merely nominal and collusive party to this suit, and that the only persons interested therein are Cohn and Morris and the bank, between whom the real controversy lies. We regard Sachse as occupying no better position than if he presented a power of attorney from Colm and Morris authorizing him, in his own name, to take out and prosecute this injunction. We are satisfied that Cohn and Morris are acting in the name of Sachse, well knowing that the pretended assignment is a lifeless form, and that no one can benefit by the action but themselves. Under these circumstances, we conclude that the order of removal should be refused.

It is, therefore, ordered, adjudged and decreed that the order appealed from be annulled and set aside, and it is now ordered, adjudged and decreed that the petition of plaintiff praying for an order removing this cause to the Federal Court bo rejected at appellee’s cost in both courts.


source: Caselaw Access Project

author: Pociié, J.

license: Public Domain

text:
    No. 9321.
    The State of Louisiana vs. Patrick Egan, Jr.
    An irregularity in the manner of drawing the juiy, unless it he alleged and shown to be accompanied by fraud, or a great wrong, cannot avail an accused on appeal. Jt is not every irregularity in criminal practice that works injury.
    Under a showing that an accused, in a case pending in New Orleans, when witnesses do not live at great distances from the court, took necessary steps to summon his witnesses within three days of the notice of trial, and seven day* in advance of trial, is prima facie proof of due diligence. Under such a showing, the absence of a witness residing in said city, hut temporarily absent therefrom, whose attendance the accused had sought to secure by moving for necessary process to be served in the parish where the witness is supposed to be at the time, such steps being taken seven days before trial, will entitle the accused to a continuance of his cause.
    A PPEAL from the Criminal District Court for the parish of Orleans. Homan, J.

      II. J. Cunningham, Attorney General, and lionet Adams, District Attorney, for the State, Appellee.

      W. D. JSvans for Defendant and Appellant:
   The opinion of the Court was delivered hy

Pociié, J.

The defendant seeks relief from au unqualified verdict of murder, and charges numerous errors to his detriment.

His challenge to the array, of jurors presents an objection to the dis■cretion exercised by tbe jury commissioners in rejecting certain persons for tbo reason that they did not possess sufficient, intelligence to serve as jurors, as they were unable to read or write. This is substantially the ground which we recently considered and disposed of in the case -of Foster Chase, Jr. not yet published. We adhere to the reasoning which shaped our action in that case.

lie also charges error 'in the manner of drawing- the jury, for a failure on the part, of the commissioners to comply with one of the requirements of Section 2 of Act No. 98 of 1880, providing for the manner of drawing jurors in tlie parish of Orleans.

That Statute requires that the cominisioners should always have in the wheel whence the names of the jurors are to lie drawn, at least one thousand names of persons competent to serve as jurors : to certify a list of such names to be returned to, and kept by, the cleric of the criminal district court: and to supplement said list as often as additional names or slips are placed in the wheel, so as to make up the legal number of names required to be kept therein.

It appears that, from the month of February, 1882, to May, 1884, at which occurred the dra wing which contributed tlie venire serving in this case, the names of the jurors of each panel who did not appear, and who were known to the commissioners as residents of the city of New Oileaus, were immediately placed back in tlie wheel, and that such .names were not included by them in the supplemented lists.

It thus occurred that between the two periods of time above stated the number of jurors drawn for service in tlie criminal district court was 12,(iñ4, and that the aggregate number of names appearing on the list and supplemented lists in the hands-of the clerk was 10,088.

That discrepancy was explained by showing, as stated, that the names of drawn jurors who had not been found or who otherwise failed to serve, had been placed back in the wheel, and that their names liad not been re-listed, for the reason that such names had been entered on some previous list.

This is certainly an iiregularity, and its inevitable result was the discrepancy between the number of jurors drawn and the various lists in the hands of the clerk. It is the clear and unequivocal intent of the law that these two statements must tally, and hence the naipes of •drawn jurors which are replaced in the wheel by the commissioners should be included in the new or supplemented list as often as they are thus replaced in the wheel.

But the point presented beyond that discovery shows no consequence which could invalidate the trial of this accused. It is not every irregularity which operates injury. The defendant has failed to allege aud, a fortiori, to prove that the irregularity which he has shown, was the result of any fraud, aud was such a great wrong as would or did work him an irreparable injury. This was an indispensable requirement un1 •der tlie provisions of Section 10 of Act 44 of 1677. State vs. Smith, 33 Ann. 1414; State vs. Harris, 34 Ann. 118; State vs. Edward, 35 Ann. 1098.

Our only object in giving so much time to the discussion of this-point, is to secure a precise compliance with all the requirements of the law in the administration of justice in criminal cases.

His next complaint is levelled at the refusal of a continuance of his case, and that objection presents a formidable ground, under which we feel compelled to grant him relief.

The record, on this point, shows as follows :

On the 14th of November, 1884, the defendant, then in prison, was notified that his case was fixed for the 24th of that month ; this was the first and only day selected for the trial.

On the 17th of the month, his counsel informed the court through his affidavit that Hubert Fielder, a resident of New Orleans, and an important witness for the accused, was absent from home, in the employ of a Government boat then used on public works in Red river, and in the parish of'Grant; and on his motion, the court ordered a subpoena directed to the proper officer for service on the absent witness.

On the day of trial the witness was absent, whereupon counsel for the accused moved for a continuance of the cause. The motion was supported by the affidavit of the accused reciting the above proceeding, and the additional fact that the absence of the witness from his residence had been discovered by him only on the 17th of November, the day on which he had applied for a subpoena in order to secure the attendance of-the witness.

He further set forth in his affidavit that on his procurement a special messenger had been sent by the criminal sheriff with the proper papers to the parish of Grant, where he was informed that the boat on which the witness was employed had left the place and had proceeded to the parish of Rapides, whereupon the messenger had gone down to the latter parish, where he found that the boat had moved further down, but was momentarily-expected to return to Alexandria in said parish, and the papers were left in the hands of the sheriff of that parish, the messenger returning to this city the day before the trial. The affidavit also contained a statement of the facts which were expected to be proved by the absent witness, and that no other witness could prove them ; the facts were material, and would, in our opinion, have been sufficient a,t least to reduce the verdict to manslaughter. The affidavit ended with the averment that the attendance of the witness could be secured for the next term of the court ; and the record shows that this would have been only a week later.

Under this showing, which we have taken the pain to recite at great length, because of its completeness, the accused was justly entitled to a continuance. It is conceded by our learned brother of the district court, that the showing makes ample proof of due diligence from the 17th of November, but not before that day.

The attorney-general fails to inform us, and we are not aware, of any rnle of law or of practice, under which an accused in the city of New Orleans must be held to take steps, more than one week previous to his trial, to secure the attendance of his necessary witnesses. We believe, and we therefore hold, that stei>s taken by an accused under duress, in case pending in the city of New Orleans, within three days of the notice of trial, and seven days previous to the da.y of trial, to see to the summons for his witnesses, is a prima facie good showing of diligence, and that such a showing fails to suggest any suspicion of laches on his part.

We fail to see anything in the record to jnstify the belief or the apprehension suggested by counsel for the State that the attendance of the witness could not have been secured for the next term of the court. Every circumstance disclosed by the record tends to justify a contrary belief.

We are in this pase, as we usually feel, very loth to interfere with the discretionary conclusions of a conscientious trial judge, but under our sense of duty we must rule according to the impressions which are forced upon our minds from a careful examination of the record. State vs. Brette, 6 Ann. 653; State vs. Bortreaux, 31 Ann. 189; State vs. Briggs, 34 Ann. 71; State vs. Bolds and Trevanier, recently decided.

Concluding as we do to reopen the case on this ground, we are relieved of the necessity of considering numerous other complaints urged by the zealous counsel of the accused.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed, that the verdict of the jury be avoided and set aside, and that this case be remanded to the lower court for further proceedings according to law.


author: Bermudez, C. J.

text:
    No. 9435.
    The State ex rel. J. L. Hargrove, Administrator, vs. Judges Court of Appeals, First Circuit et al.
    A court of appeals Las no jurisdiction over a suit in which more than $2000 is claimed, although the judgment appealed from be for less.
    A suspensive appeal cannot be allowed, when the petition is filed after the expiration of the delay, within which such appeal should be asked.
    A PPLICATION for Mandamus.
    Relator in propria persona.

   The opinion of the Court was delivered by

Bermudez, C. J.

The relator complains of the action both of the judges of the Court of Appeals and of the district judge of the First District and prays for relief.

He charges that, in the suit of Arnold vs. White, in which $2770 had been claimed, judgment having been rendered for $1601, he, as administrator of the succession of the defendant, appealed to the Court of Appeals, hut that his appeal was improperly dismissed by it for want of jurisdiction. .

He further avers that he then apxilied to the District Court by which the judgment had been rendered to grant him a suspensive and devolutive appeal thereof to this Court, at its October term, in Shreveport, hut that the judge illegally refused the suspensive, allowing only the devolutive appeal.

He prays for any appropriate relief in the premises.

We have not issued the rule nisi on the judges of those different courts, who are singularly brought in together, as we did not think the relator was entitled to that proceeding.

The Court of Appeals was right in refusing to entertain jurisdiction over a suit in which the amount claimed is in excess of two thousand dollars, although the judgment was for less.

The district judge could not have allowed a suspensive appeal, as the petition was filed more than ten days after the rendition of the judgment.

Had the relator within that delay ax>plied for a suspensive appeal to this Court, instead of the Court of Appeals as he has done, he would not this day he in the predicament in which he finds himself.

The application is refused.


author: Poems, J. Todd, <1.

text:
    No. 9361.
    Annie Meyer vs. Zenilla Schurbruck.
    A motion to dismiss an appeal because of the deficiency of the transcript, which contain» BUifttno note of evidcmee, bill of exception, or statement of facts, cannot prevail if the appellant has filed, within legal delays, an assignment of errors which presents an alleged error of law appearing on the face of the record, and which can he disposed of without reference to evidence or matters of fact.
    The act of an appellant in filing in the same court another suit for the same causes of action alleged in the suit decided against him, after taking an appeal theroin, will not be con-st ued as an acquiescence in the judgment so as to defeat his right of appeal.
    A cause of action for a partition is disclosed, where the petition avers that the petitioner is-a- child by a first marriage, that her father died owning half of the property composing the community existing during his second marriage, of which there was no issue and that the petitioner is his sole heir.
    The defense, that such partition cannot take place, for the reason that such property is burdened with a usufruct in favor of the surviving spouse, lacks foundation and is no valid objection.
    APPEAL from the Civil District Court for the Parish of Orleans. Lamms, J.

      Farrar & Kruttschnitt and IF. L. Thompson for Plain tiff and Appellant.

      Sinyleton, Browne cC Ohoate for Defendant and Appellee;
   On Motion to Dismiss

The opinion of the Court was delivered by

Poems, J.

The grounds of the motion are as follows:

1. The insufficiency of the transcript through the fault of appellant because it contains no note of evidence, bill of exception, or statement of facts.

2. The acquiescence of appellant in the judgment appealed from.

I.

It is true that the transcript contains no note of evidence, bill of exception, or statement of facts, but it contains an assignment of errors, filed in time under the provisions of Article 897 of the Code of Practice.

The assignment sets forth an error of law, alleged to appear on the face of the record. The judgment appealed from maintained the exception of no cause of action, filed by the defendant against plaintiff’s petition. The alleged error of the judgment can, therefore, be considered and passed upon by this Court, without reference to any evidence which may have been introduced on tlie trial of the other exceptions, which were interposed by the defendant.

Of course the issue presented by the alleged error of the judgment in so far as it maintains the exception of no cause of action, is the only question which can bo entertained on the present appeal. No other issue was disposed of by the judgment of the District' Court, and no other can be presented on appeal.

It follows that appellant has brought up, in one of the modes pointed out by law, a ground which vests this Court with jurisdiction, and conveys knowledge of the matters argued or contested below.

II.

The acquiescence charged to appellant, consists in her paying the costs incurred by her suit, and in her filing another suit in the same court founded on the same causes of action as alleged by her in the suit which gave rise to this appeal.

It appears that these acts were embodied by appellee, in a rule before the District Court for the purpose of obtaining there an order setting aside the present appeal, and that the defendant was lodged in this Court on appeal from the judgment of the District Court discharging her rule. Her counsel have suggested the consolidation of the two appeals, and the transcript in the latter case has been handed to us together with that in the first or main appeal.

The suggestion involves a proceeding somewhat irregular, but as the mode affords an opportunity’of expediting the administration of justice, we have concluded to overlock the irregularity of the proceeding and to examine into the second transcript.

That record does not contain evidence of the acts alleged to operate as an acquiescense- on the part of appellant. But we do not attach thereto the legal effect claimed by appellee. The institution of the second suit might have been amenable to the plea of Us pendens, but it can, under no circumstances, be considered as a waiver or an abandonment of the previous appeal. We see no force in the argument that the act of a party asking of the same court the same relief which had recently been refused him bj' the court, evinces any degree •of satisfaction with the judgment against him, and from which he had taken an appeal. The very reverse is quito apparent to our minds. Buntin vs. Johnson, 27 Ann. 625.

The former judgment pending on appeal, could not even’have been pleaded as res adjudicaba, in bar to the second suit, for the plain reason that it was not yet final. C. 0. 3556, No. 31.

The district judge was, therefore, correct in discharging appellee’s rule.

It is therefore ordered, that the motion to dismiss the appeal taken in No. .9361, be overruled—and that the judgment appealed from in No. 9405, be affirmed. Costs of the latter appeal to be paid by the defendant: other costs to abide the final determination of the controversy.

On tiik Merits.

Todd, <1.

This appeal involves only a single question of law, and 'that is whether the plaintiff’s petition discloses a cause of action.

The plaintiff alleges in substance, that she is sole heir of Bernhard II. Meyer, deceased, and only issue of his marriage with her mother, also ■deceased.

That her said father contracted a second marriage after the death of '.his first wife—mother of petitioner—with the defendant who survived him. That, during this marriage, property was acquired, personal and real, which was placed in the name of the defendant, but belonged to the community resulting from said second marriage, and of one undivided half of which petitioner was the, owner by inheritance from her father. She prayed to be so declared and for a partition of the same.

The suit was dismissed on an exception of no cause of action, and plaintiff appeals.

The record does not show the reasons of the judge for maintaining the exception.

Thejiappellant’s counsel argued that it was because he was of opinion that there was an illegal cumulation of separate causes of action in ■one suit. The. defendant’s counsel deny this and admit that there was no such illegal cumulation of separate demands, hut contend that the suit was dismissed for the reason, that no action would lie for a partition of community property daring the, existence of the usufruct of the surviving widow over the portion belonging to the deceased husband’s estate and claimed by the plaintiff herein.

There is no evidence whatever in the record and the question touching the cause of action must be determined from the face of the pleadings. These we have carefully examined, and it does not appear from anything therein, that the defendant has any usufruct of the pro. •perty in question. Such fact is asserted neither in the petition nor the exception; nor is there any other fact alleged, such for instance, as there being issue of the second marriage, and the husband not liavingdisposed of his share of the community by last will, from which a presumption of such usufruct in the surviving widow could he drawn. See R,. S. See. 3708. '

The argument of the counsel on both sides, .therefore, seems gratuitous, at least uncalled for by anything in the pleadings, which for the purposes of the exception, we must consider as disclosing all the facts relied on respectively by the parties litigant..

Looking then to the petition, we think it discloses a substantial cause of action. If its averment are true, the plaintiff is the owner of one undivided half of the property belonging to this community at the time of its dissolution. If so, she lias a right to demand a partition, unless some obstacle is opposed thereto. If we look to the exception, it simply denies a cause of action without mentioning any opposing right whatever, in the defendant to sustain such denial, and admits by its legal effect the truth of plaintiff’s averments.

The existence of issue of the first marriage, and the absence of issue at the second, and of any testamentary disposition by the deceased in favor of his surviving wife, exclude the possibility of the existence in her favor of the usufruct of his undivided share of the community property.

There were other exceptions to the action, which were not passed on by the judge a quo, and which we do not consider, even could we do so without evidence, necessary to their determination.

It is, therefore ordered, adjudged and decreed, that the judgment of the lower court maintaining the exception of no cause of action, be annulled, avoided and reversed, and the said exception overruled and the case remanded to be proceeded with according to law, the costs of appeal to be paid by defendant and appellee.


author: Todd, J.

text:
    No. 9366.
    The State of Louisiana vs. Rodolphe Sandoz.
    Where the record does not show that an indictment was returned into court by the grand jury, the case must be remanded and the sentence set aside.
    To justify the quashing of a venire on account of irregularities in the drawing of the same, it must appear that a fraud was committed or a great wrong done to the serious prejudice of the party or parties accused.
    Under an indictment charging an assault b" wilfully shooting at, a conviction will not be •set aside because of the refusal of the trial judge to instruct that it must appear that the assault was made with a malicious intent.
    APPEAL from the Twenty-first District Court, Parish of Iberia. . Gates, J. -

      M. J. Cunningham, Attorney ti-eneral, and Chas. A. Mouton, District Attorney, for the State, Appellee.

      Bobi. S. Perry for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was convicted of assaulting Alcée Romero-by wilfully shooting at him, and appeals from a sentence of eighteen months’ imprisonment at hard labor.

Among the errors assigned in the proceedings of the lower court is, “that the record does not show that the indictment for said alleged offense was presented by the grand jury in open court.”

Such return was essential to the validity of the proceedings. An inspection of the record satisfies us that the assignment in this respect is well founded. There is no entry of the kind in the minutes of the court, and nothing in the record whatever from which it could be inferred that such indispensable requirement was complied with.

This grave omission compels us to remand the case. State vs. Shields, 33 Ann. 991; State vs. Mason, 32 Ann. 1019.

Thus concluding we might refrain from considering other questions raised by the defense, but inasmuch as the questions must arise in a subsequent trial of the case, we deem it necessary to determine them.

1. There was a motion to quash the venire for irregularities charged in drawing the same.

We do find irregularties in the proceedings of the jury commissioners, and in the process verbal of said proceedings, which we have attentively considered, but controlled by the broad provisions of section 10 of Act 44 of 1877, to the effect that no defect or irregularity in the drawing or summoning of the jury shall be sufficient cause to invalidate the same, if it shall not appear that some fraud was practiced or wrong committed that would work a great and irreparable injury to the accused. We cannot disturb the ruling of the trial judge in overruling the motion.

It is not apparent from the proceedings in question, that any fraud was practiced or wrong committed in any manner to the prejudice of the accused. 33 Ann. 1414; 35 Ann. 1098.

2. The trial judge charged the jury in these words:

“That the only thing for the jury to do in coming to their conclusion, if they found the accused guilty, as charged, would be to consider whether he had wilfully shot at Alcée Romero, that the law did not use the word ‘intent’ in this connection as it did in regard to the acts mentioned in the section.

This charge was not objected to, but the judge was asked by the counsel for the accused to add : “That the word ‘wilfully’ covered and included the malicious intent, that under the law was necessary for the jury to convict of wilfully shooting at, if they shall find the shooting had been done with malicious intent.”

Both the instruction given and that refused would seem to involve some confusion of ideas on the part, both of the judge and counsel. If, in. point of fact, as claimed by the counsel, the word “wilfully” implied or included malice, then it would seem unnecessary for the judge to give the additional charge, since he had virtually instructed to that effect in charging that the jury must consider whether the accused ivilfully shot at Romero.

It is true, as stated by tlie judge, that the clause of the section under which the accused was indicted, does not contain the word “intent.” The section reads thus :

“Whoever shall assault another by wilfully shooting at him, or with intent to commit murder, etc.”

We cannot see that the defendant was prejudiced by the refusal of the judge to charge in the language requested. Although it might seem doubtful from the words used,whether he so intended it, the judge did substantially charge as requested by counsel.

Speaking of the word “wilfully,” Bishop says: “It is more frequently understood to extend a little further (i. e., than intentionally) and to proximate the idea of the mildest kind of malice,'that is, signifying an-intent without justifiable excuse.” “And Shaw, C. J., once remarked in a Massachusetts case that in the ordinary sense in which it is used in statutes, it means not merely ‘voluntarily,’ but with a bad purpose* in other words it means corruptly.”

“As used in penal statutes ‘wilfully’ means with evil intent or legal malice, or without reasonable ground for believing the act to be lawful.” State vs. Preston, 34 Wis. 675.

It is, therefore, ordered, adjudged and decreed that the sentence and verdict appealed from be set aside and annulled and the case remanded to the lower court to be proceeded with according to law.


author: Fenner, J.

text:
    No. 9331.
    The State of Louisiana vs. James K. Rutledge.
    Act 7 of 1880 deals exclusively with regular terms of the district courts and the prohibition of fixing such terms so as to conflict; with those of the circuit courts, does not apply to special called terms.
    Declarations of accused made after the crime and while the coroner’s jury is sitting on the inquest, are not part of the res gestee and are inadmissible.
    "When the State, on cross-examination of a witness, has elicited from him a statement by the accused to a particular and isolated fact, the defense has the right to question the witness as to everything said by accused connected with or bearing upon said fact •, but it does not entitle the defense to introduce other self-serving declarations of accused having no connection with that subject, made during a conversation of an hour or more’ The connection between the two is not more apparent than if they had taken place at different times.
    'The other errors assigned are sustained by the record or are untenable.

      A PPEAL form the Sixth District Court, Parish of Morehouse. jLJL Brigham, J.

      M. J. Oivnmngham, Attorney General, and 8. T. Baird, District Attorney, for the State, Appellee. ,

      O. T. Bunn, F. Vaughan and W. Ti. Mayo for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The first ground of reversal relied on is the alleged illegality of the term of court at which the defendant was indicted, tried, convicted, and sentenced, because the term conflicted with a term of the circuit court in the same j)arish as fixed by the Constitution, in violation of Section 4 of Act No. 7 of 1880.

The term was a special called term, and we have already explicitly held that Act 7 of 1880 “deals exclusively with regular terms of the district court, except in the proviso to Section 5 thereof, which declares that‘district judges may provide for other jury terms in any parish when, in their discretion, it may be required.’ ” State vs. Claude, 35 Ann. 71.

This disposes of the objection, without reference to the fact that it was only presented, after conviction, on motion in arrest of judgment.

The next error is presented on a bill of exceptions to the the exclusion of evidence of certain declarations of accused made in a conversation after the crime, and while the coroner’s jury were sitting on the inquest.

The pretense that such declarations were part of the res gesUe is frivolous, and the ruling was obviously correct. On cross-examination of the same witness, the State elicited from Mm evidence of certain declarations of the accused, with reference to a particular fact, made in a different conversation held at a later period and at a different place. The accused then claimed the right to question the witness as to all the declarations made by the accused in a long conversation. The court ruled that he might interrogate the witness as to every part of the conversation affecting or bearing upon the particular fact as to which the State had questioned him, but not as to other and independent ■declarations of the accused. We think tire ruling was correct. The particular fact elicited by the State was the statement of accused that he had “ got his whiskey ” at a particular xfiaco. This^n titles the defense to the whole conversation on the subject of. the whiskey; but we ■can see no reason why his other self-serving declarations having no connection with tliat subject, made, as the court says, in a conversation of an hour, or moro, should be let in. The connection between the two is not more apparent than if the different parts of the conversation had taken place at different times. State vs. Johnson, 35 Ann. 969.

The last error assigned is thafeit does not appear on the face of the proceeding that the jury was in charge of a sworn officer, or that a particular oath was administered to said officer. It is enough to say that the minutes do affirmatively show that whenever the jury left the presence of the court they were placed in custody of a sheriff, a sworn officer; and it is a novelty for which we find no precedent to claim that the minutes must show whether any, and what, oath was adminis tered to him.

We find no error in the proceedings.

Judgment affirmed.


author: Bermudez;, C. J.

text:
    No. 9354.
    The State ex rel. Richard D. Carl vs. Judge of the First City Court.
    A prohibition will not issue to a city court, in an ejectment suit», in which the defense is a renewal of a pi e-oxisfcing lease exceeding one hundred dollars, when, on the trial of the exception to its jurisdiction, the renewal was not proved.
    Time is of the essence of such defense. If the defendant in the suit did give notice, he should have proved with certainty not only the notice of his intention to renew: but that it was given before the expiration of the lease.
    To prove a contract exceeding five hundred dollars in value,, a credible witness and corroborating circumstances are required. The fact that the only witness to prove it, is the party claiming rights under it, is not sufficient to make him incompetent; but it may diminish his credibility. When such testimony is unaccompanied by coiToborating circumstances, it is surely insufficient to prove the contract.
    A PPLICATION for Prohibition.
    JJ. R. Forman for the Relator.
    Respondent in propria persona.
   The opinion of the Court was delivered by

Bermudez;, C. J.

This is an application for a prohibition.

The relator complains that the city judge has illegally overruled an exception to his jurisdiction and insists upou. trying the case on its merits. He avers that an ejectment suit was brought against him in January last, from premises to which lie alleges to hold a two year lease, from October 1, 1884, at $70 per month, in renewal of a one year lease, -which expired on the 30th of September previous. He also claims, that h« has put up improvements on the premises, fitted up the same at a cost of some $250; that; the ejectment would inflict great loss upon him; that he has the right to have the issues prevented in the case determined by a district court, and that said city judge is usurping a jurisdiction which does not belong to him,

He therefore prays for a prohibition.

The city judge returns that on the trial of the exception, the relator was shown to have violated the original contract of lease, and therefore, forfeited all rights to the renewal therein provided for; and even then, that the relator did not establish that he had availed himself in time of the privilege; that he stated he did give notice of his intention to renew the lease and at the same time offered and tendered the rent notes; but that he did not recollect or specify the exact time he gave this notice or made the. tender ; that he believed it was in September. Tlie judge further states, that no rent notes were shown or offered in evidence on the trial of the exception.

The law distinctly provides, that if the justice is satisfied, in ejectment suits by due proof, that the lease has expired by limitation or has been in any way violated, and that the demand in writing for delivering possession thereof, has been mado within the time fixed by law, it shall bo lawful to give judgment against the tenant, ordering him to deliver possession of the premises. R. S. 2057, § 2, 2157.

The city judge had therefore clearly jurisdiction to inquire into the existence of the alleged lease. 33 Ann. 146; 34 Ann. 1143; 8 N. S. 563; 13 Ann, 137.

Time was of the essence of the plea. The relator should have made it certain that he had given the notice before the expiration of the lease. He produces here a copy of the notice he says he gave, and the notes he avers he has tendered. It does not appear that he exhibited this notice to tlie city judge or proved how and when the notice was given or served. In cases of conflict between the statements of relators and of judges, the rule is to attach more weight to those of the latter.

Besides it is apparent, that ’ the evidence was designed to establish a contract above five hundred dollars in value, and that the same should have been proved at least by one credible witness and corroborating circumstances. R. C. 0. 2277.

The fact that the only witness to prove this contract of renewal is the relator himself, who is a party to the cause, is not sufficient to consider him as incompetent; but it may diminish the extent of his credibility. R. C. C. 2282. It-is surely insufficient to prove an actual renewal of the lease.

Under the cii cumstances, no renewal having been proved, the city judge has authority to proceed to the trial of the ejectment suit, as. though the defense of an existing lease had not been set up. R. S. 2057.

We deem it unnecessary to pass upon the other ground, that the relator had violated the original lease and had, therefore, none to renew, at the appointed time for its expiration.

Application refused with costs.

Reiiearing refused.


author: PochiS, J.

text:
    No. 9335.
    The State of Louisiana vs. Robert Green.
    An indictment charging two distinct offenses, belonging to the same given class, in separate counts, is not vicious.
    A verdict under such an indictment, acquitting the accused of the greater, and convicting him of the lesser charge, is not erroneous, as not being responsive to the indictment.
    APPEAL from the Criminal District Court for the Parish of OrleansIioman, J.

      M. J. Ounningham, Attorney General, and Lionel Adam,s, District-Attorney, for the State, Appellee.

      Frank Hebert for Defendant and Appellant.
   The opinion of .the Court was delivered by

PochiS, J.

The complaint in this case', presented in a motion for a new trial, and a motion in arrest of judgment, is substantially that the indictment is defective, because it charges two distinct offenses, and further that the verdict is not responsive to the indictment, because the jury found the accused “not guilty of the greater, and guilty of the lesser offense charged.”

Tee indictment contained two counts, and presented the following charges:

1. With stabbing with a dangerous weapon with intent to murder.

2. With inflicting a wound less than mayhem with a dangerous weapon -with intent to kill.

The first count involves the provisions of section 791 of the Revised Statutes, which denounces an offense punishable by hard labor or otherwise, for not less than one nor more than twenty-one years.

Tlie second count is predicated on section 794, treating of an offense punishable with hard labor, or otherwise, for a term not exceeding two years nor less than six months, and by a fine not exceeding one thousand dollars.

It is too clear for argument, that both offenses could grow out of the same act. Hence it follows that they are kindred offenses, and belong to the same generic class, and jurisprudence has crystalized the rule that such offenses may be charged in the same indictment, provided they be incorporated in separate counts. No amount of reasoning on our part could settle the rule on more solid grounds than we find it announced and reaffirmed in numerous decisions of this Court. State vs. Malloy, 30 Ann. 61; State vs. Depass, 31 Ann. 487; State vs. Johns, 32 Ann. 812; State vs. Gilkie, 35 Ann. 53.

The contention that the verdict which acquits the accused of the greater offense cannot convict him of the lesser charge, is absolutely groundless. The very reverse results from long established criminal jurisprudence.

We And no error in the proceedings.

Judgment affirmed.


text:
    No. 9400.
    James H. Muse vs. William Acey.
    This is an action for slander upon the professional character of the plaintiff, which is proved by the concoidant testimony of his fellow-citizens and brethren of the bar to be above reproach. The evidence, however, explaining the meaning of the words and the connection in which they were used, acquits defendant of the charge of slander, as found by the .jury who-tried the case.
    APPEAL from the Eighteenth District Court, Parish of Tangipahoa. Thompson, J.

      J. H. Muse and Filis & Filis for Plaintiff and Appellant.

      F. F. Bussell for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiff, a learned and venerable counsel of this Court, claims damages from the defendant, for an alleged wanton and malicious slander, in stating to two of petitioner’s clients for whom the said defendant was about to pay into the hands of plaintiff certain moneys realized from the sale of certain property recovered for them, that “if the money was paid into the hands of plaintiff, they would never get a dollar of it ; that you had better be on hand and get your part of the money; if the money got into Mr. Muse’s hands, and you don’t mind, you will never get a d-d dollar of it.”

The words, in their naked import and unexplained, certainly suggest a foul aspersion upon plaintiff’s honesty and fidelity to'his clients.

It is not astonishing that, as reported to him, they should have aroused his just indignation, and it is a credit to his law abiding character that he should have sought redress from the public justice rather than by private vengeance.

Unexplained they present every element of actionable slander, being-false, unprivileged, injurious, wanton and malicious.

The concordant testimony of his brethern of the bar to the unsullied integrity of plaintiff’s professional life during a practico of more than half a century in the courts of this State, should hardly have been necessary before any tribunal of Louisiana, so public and- wide-spread has been the well-earned reputation of the plaintiff.

If the slander had been proved as charged and not so explained as to remove the apparent insinuations, it would be hardly credible that the verdict of a jury «of plaintiff’s countrymen, approved by the excellent judge of the District Court, should have denied relief.

Such, however, is the fact, and after a critical study of the evidence in the record, we find ourselves constrained to approve their finding.

The witnesses to whom the defendant’s remarks were addressed and who reported them to defendant, give a very different account of the conversation when testifying in the case.

We quote the testimony of one of them, Mr. Shilling;

“Mr. Acy said he was going to pay over to Mr. Muse, our attorney, $000. Don’t know exactly the words used, but he- said he was going to pay over the $600 to Mr. Muse, and asked me and Mr. Alford if we had ever got anything clear yet, and we told him we had not. Well, said he, you won’t get anything this time; as well as I remember, he said there was the Rivers compromise, which would take $200, aud, said he, if your attorney has never received any percentage yet, if he claims it on the $1400, that will take $280, and, said he, there are Some taxes to pay, and court expenses, clerk and sheriff’s fees; aud also something was said, I think, about clerk and sheriff fees in the city of "New Orleans; and Mr. Acy said, if you don’t mind there won’t, be a dollar left, or something of that kind, I don’t remember exactly; this is about what took place between Mr. Acy, Mr. Alford and myself, as well as I remember. Mr. Acy said, I will have to pay the money over to your attorney, and said further that if I did not mind, that there would not he anything left after paying costs, percentage and the Rivers compromise.”

Obviously, this version robs the statement of all imputation upon the character of plaintiff.

It is positively confirmed by the testimony of defendant, and even that of the only remaining witness, Alford, while not so fully exculpatory, admits that Aoey told him how the funds would he disposed of, and said “he was going to pay over $600 that day, but there was $200 to go for a compromise to Mr. Ellis or some one else; that there was sheriff’s and clerk’s fees aud some taxes to he paid; aud the balance would go to Mr. Muse or the Self heirs.”

It seems in point of fact, that the distribution of the fund did substantially confirm tho anticipations of the defendant, aud the just and proper charges referred to, substantially absorbed it.

We need not discuss the evidence further.

We have no doubt that the judge and jury wore as sensible as we are of the just reputation of the plaintiff, for professional integrity, and would have been as prompt, as wo would bo, to mulct any slanderer thereof in damages; but they have concluded from the evidence adduced, that the defendant has established his innocence of any such charge, and has not intentionally or maliciously assailed the character of plaintiff.

We find their conclusion supported by tho evidence; and plaintiff’s vindication is complete in the proof, that oven slander has not dared to impugn his integrity.

Judgment affirmed.

Rehearing refused.


text:
    No. 9440.
    The State ex rel. Charles A. Williamson vs. Judge Fourth City Court.
    Tho confession of judgment l>y a debtor arrested for debt, does not authorize his release from imprisonment, 1 Ann. 126 , 31 Ann. 799.
    There exists no discrepancy or disparity between tbe law relative to tho release from custody of snch debtor, in proceedings in oases of arrest by district courts, and that on the subject, by parties ol‘ the peace or city courts. They are substantially tho same.
    The city judge had jurisdiction of the case and the proceedings apxicar to have been regularly conducted.
    The application for a certiorcvri to vitiate the proceedings is refused.

      Application for certiorari.

      Mark Breeden, Jr., for the Relator.
    Respondent Judge impropria persona.

   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a certiorari.

The relator charges substantially, that suit has been brought by John. Levy against him, for the recovery of $40, coupled with a prayer that he be arrested, on the ground that he is about to depart permanently from the State, without leaving on it property sufficient to satisfjr the demand; that, upon citation, he confessed judgment in favor of the plaintiff; that, notwithstanding said confession, the court has ordered him to be imprisoned, that he has sought in vain,in the lower court to be released from custody, that the order for his detention is illegal, irregular and void, and should be rescinded.

The city judge denies the right claimed by the relator.

In Anderson vs. Brinkley, 1 Ann. 126, and State ex rel. Wung Chung vs. Civil Sheriff, 31 Ann. 799, this Court held distinctly, that a debtor, imprisoned for debt, cannot, by confessing judgment, put an end to the creditor’s right to his detention.

The Code of Practice, on the subject of Justices of the Peace, provides that the creditor, wishing to arrest his debtor, shall make his demand before any competent justice of the peace to have his debtor cited and condemned to pay the sum due, and that he shall be at the same time required to give security to appear and answer the said demand.

The Code also provides, Art. 1103, 1108, that the bond to be furnished by the debtor under arrest, shall contain a condition that he shall appear on the trial of the cause; that if he should depart without permission from the justice, who caused him to be arrested, or should fail to appear to satisfy such judgment as may be rendered against him, his security shall be bound to satisfy such judgment, to the amount of his bond.

The Code further provides, (1104), that, if the defendant will not or cannot give the security required of him, the justice shall send him to prison, there to remain until he gives the security demanded, etc.

The Code besides contains provisions for the arrest of a debtor, of a debt not yet due, who is about to depart permanently to defraud his creditors, without leaving sufficient property, etc., and for the bond to be furnished in such a case. 1109, .1110, 1111.

It is manifest that, if a confession of judgment could entitle the defendant to his release from custody, one of the main objects of the bond, which is to make certain his appearance, after judgment would be defeated.

It is not pretended here that the relator has offered to furnish such bond. It is not even alleged that judgment was rendered against him, still less that he has appeared after rendition of a judgment.

While the relator specifically claims in his petition that the law dissiinilates between proceedings in such cases before city courts, and other courts, his counsel has failed to verify the dixit, by reference to any authority to show that, before such tribunals, a confession o': judgment by the arrested debtor confers on him the right of exacting his release.

We have read his brief, which argues elaborately in that sense, but have not been impressed with the existence of any disparity between these) courts and the proceedings before them in such cases.

The city judge had jurisdiction over the matter and the proceedings attacked appear to have been regularly carried on.

It has not been shown in what respect they are void in point of form.

The confession of judgment did not authorize the release of relator.

It is therefore ordered, that the application for a certiorari bo refused with costs.


author: Poché, J.

text:
    No. 9350.
    Romain Bussieré vs. Elias Williams et als.
    In a rule taken by a .judgment creditor against parties holding mortgage rights against the property of his debtor, for the purpose of obtaining the erasure of such mortgages, tile test of tlio .jurisdiction of the Supreme Court is in the amount of the mortgage thus sought to be cancelled, and not in the amount of the judgment, or in the value of the property affected thereby. State ex rol. Bloss vs. ¿fudges. 33 Ann. 1351, affirmed.
    An appeal bond, although not signed by the appellant, is sufficient if signed by the surety.
    A judgment creditor lias the legal right to remove obstacles preventing the satisfaction of his judgment on his debtors property.
    To that end he is authorized in law to proceed by rule against his debtor’s mortgages, pending his execution and before the sale.
    APPEAL from the Twenty-sixth District Court, Parish of St. Jolm tlie Baptist. Halm, J.

      L. JDePoorter for Plaintiff' and Appellant..

      J. D. Augustin, G. A. Baguié, Jules Beine and Gervais Leche, for Defendants and Appellees. , -
   On Rule xo Erase Mortoaue.

The opinion of the Court was delivered by

Poché, J.

Plaintiff, having issued execution on a judgment which he holds against the defendant, in the sum of $350.00, proceeded by rule, contradictorily with the defendant, with the latter’s daughter and with the recorder of mortgages, for the erasure of the legal mortgage inscribed on Ms debtor’s property, in favor of his said daughter, and amounting to some $4,000.

He has taken this appeal from a judgment discharging his rule, on the ground that it was not the proper proceeding, and that it appeared that the defendant’s daughter had a proprietary interest in the property seized under plaintiff’s execution.

The motion to dismiss presents two points:

1. That the bond of appeal is not signed by the appellant, but by the security only. The point is not well taken, and has long since been disposed of in our jurisprudence. It is now elementary that the appeal bond is sufficient, if signed by the surety alone. Murell vs. Murell, 33 Ann. 1235, and authorities therein cited.

2. It is next contended that the amount of the judgment in execution being the test of jurisdiction, this Court is clearly without jurisdiction over the matter in dispute.

The effect of the judgment on the rule, if decided in favor of plaintiff, would be the cancellation or erasure of a mortgage exceeding four thousand dollars in amount. The validity vel non of that mortgage is the real matter in dispute between the plaintiff and the holder of the legal mortgage, which the former wishes to cancel, and which the latter seeks to maintain. This question is entirely covered by our decision in the case of the State ex rel. Blossvs. Judges of the Court of Appeals, 33 Ann. 1351. The motion to dismiss is therefore overruled.

On this Merits.

Under our understanding of the pleadings the only issue involved in this appeal is the right of plaintiff to proceeed by rule for the purpose of having the legal mortgage cancelled and erased.

There is no force in the position taken bv Ophelia Williams, the defendant’s daughter, the mortgagee, that as she was not a party to the original suit, which resulted in the judgment against her father, she could not be brought into court otherwise than by petition and citation, or that the rule is premature because it was brought before the sale of the property or previous to any act on her part looking to a claim of preference on the property or its proceeds.

A judgment creditor has the undoubted legal right to remove obstacles, such as mortgages which may stand in the way of satisfying Ms judgment—and our jurisprudence has firmly settled the practice that for such a purpose he may proceed by rule, and that he may by that means bring into court parties who apparently hold mortgages on his debtor’s property, although they were not parties in any way to his original suit. Bayhi vs. Bayhi, 35 Ann. 529; Morris vs. Cain’s Executors, 34 Ann. 665, and numerous authorities therein referred to.

The district judge committed a grievous error, in the light of correct practice, in considering, under the only issue which was tendered by plaintiff, that ground of Ophelia Williams’ exception which suggested her alleged rights of ownership to the property under seizure. She cannot smuggle such a question under an issue of the validity of her mortgage. Under his rule, plaintiff has the legal right to discuss her mortgage claims, even if they should affect, as she contends, but one-half of the property now under seizure.

The judgment appealed from is therefore reversed; it is now ordered, that plaintiff’s rule be reinstated and that the cause be remanded to the lower court to be proceeded with according to law and to the views herein expressed. Costs of appeal to be paid by defendants, costs of the rule to abide the final determination of the same.

Rehearing refused.


text:
    No. 9367.
    The State of Louisiana vs. Armstead Saunders.
    After trial lias begun, accused cannot obstruct its progress by motions for attachment of jurors who are absent; and refusal to grant attachments in such case is not error.
    Proof of violent character of person wounded, in a trial for wounding less than mayhem, is properly rejected, unless proper foundation has been laid by evidence of overt act, hostile demonstration or threats on his part.
    APPEAL from the Twenty-third District Court, Parish of Iberville. Talbot, J.

      M. J. Cunningham, Attorney General, and Alex. Hebert, District Attorney for the State, Appellee.

      Hamid H. Barrote for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The errors complained of are presented on two bills of exception:

1. After the trial had begun and after certain jurors had been impaneled and sworn, two jurors on the regular venire were called and failed to answer; whereupon defendant moved for attachment for said absent jurors, but the judge refused the motion, proceeded with the calling of the remaining regular jurors and after their exhaustion ordered talesmen to be summoned, from whom the panel was completed. The bill is taken to the refusal of the judge to issue the attachments.

The refusal was not error. The right of the accused to be tried by jurors on the regular list which has been served upon him must yield to the practical necessity of proceeding with the trial when once begun.

Before going to trial, he may require the regular jury to be called in order to ascertain how many of them are present; and he may then move for attachments for' those who are absent. Even in that case, however, it lias been repeatedly decided that the judge may refuse the attachments when there is a sufficient number of jqrors present to form the panel. State vs. Rountree, 32 Ann. 1145; State vs. Breaux, Id. 222; 11 Ann. 81, 422, 479 ; 26 Ann. 422 ; 28 Ann. 631.

But, if the accused omits this precaution and goes to trial, the absence of jurors cannot serve to obstruct or delay the proceeding, which must move on in its regular course.

The accused must then take the jury as he finds it, and, if some are absent, he cannot impose upon the court the necessity of staying proceedings until they can be attached aud brought into court. State vs. Farrer, 34 Ann. 316.

Without such stay, the attachments would have been useless, and they were properly refused.

■ A proper reading of the opinion in State vs. Atkinson, 29 Ann. 543, relied on by counsel for defendant, enforces the same view in the following expressions: “The court need not wait and should not wait, when the names of the regular venire have once been called ; but, if before the talesmen are called and the jury completed, members of the regular venire who were not present at the first calling come into court, they should be called and the jury completed from them if practicable.”

This illustrates the rule and the exception.

2. The other'bill is taken to the refusal of evidence to prove the character of the prosecuting witness upon whom the crime charged of wounding less than mayhem was committed, for peace and quiet. The reason given by the judge for his refusal was that no proper foundation had been laid for the admission of the evidence of chamcter “ by proof of any hostile demonstration, overt act or threats.” The reason is sufficient. State vs. Garic, 35 Ann. 971.

Judgment affirmed.


text:
    No. 8849.
    Succession of P. G. Quin.
    An order transferring a cause from the Supreme Court to a circuit court, on the representation of appellant and appellee, that the matter in dispute, or fund to be distributed, is less tban 82000, will be rescinded where it is. subsequently ascertained that it was based on an error of fact and that the amount involved clearly brings the case within the jurisdiction of the Supreme Court..
    An appeal cannot be prosecuted and the case must be stricken from the docket, where the transcript of appeal or papers purporting to constitute such, have been filed after the expiration of an extension of the return day originally fixed.

      J. 3. Muse for Appellant.

      Jüllis <& milis for Appellee.
   Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

On February 14th nit., a motion was made by the appellant to transfer this ease to the Circuit Court, bolding session in the parish of St. Helena.

This motion was opposed by the appellees, who claimed that this Court should dismiss the appeal because there bad been filed no transcript of appeal within the extended delay.

The motion to transfer was based on tile ground that since the adoption of ’the constitutional amendment of Article 81, this Court had ceased to have jurisdiction over the matter in dispute, the fund proposed to he distributed being less than $2000.

This fact was not denied by the appellees, who were considered as admitting it.

In the absence of a transcript to verify the averment, this Court transferred the cause to the Circuit Court, without prejudice to the rights, if any, of the appellees.

Thai court, with the means of ascertaining whether the fund to be distributed exceeded or not $2000, arrived at the conclusion that the fund did exceed that amount, and declined to take jurisdiction over the matter transferring the same to this Court.

Here, both appellants and appellees now admit that tho representation on which this Court acted was made in error of fact, and that the fund proposed to he distributed, in truth, exceeds the lower limit of ibs jurisdiction.

Tlio order transferring the cause to the Circuit Court made on February 14th ult. is, therefore, rescinded and the cause reinstated..

It is, therefore, before this Court on the motion to dismiss.

It appears that the appellant obtained an order of appeal returnable to this Court on the second Monday of February, 1883; that seasonably, viz : on the third judicial day (Thursday) lie applied for and obtained an extension of time of the return day till the second Monday of February, of the following year (1884),'and again, on the 23d of January of that year, lie obtained another extension to the next term which opened on February 9, 1885, on which the transcript was not filed.

On the 12th following, however, he filed certain papers, purporting the one to be an account of the administration and the other reasons for judgment.

Those papers did not constitute a transcript of appeal.

Even had the appellant then filed such transcript, the same could not he considered as filed seasonably, for the double reason, that the appellant did not obtain, previous to the 9th of February, further time to file the transcript, and that he was not entitled thereafter to the usual three days of grace which follow the return day.

It is, therefore, ordered, that the case he stricken from the docket of this Court.


author: Poci-ié J.

text:
    No. 9430.
    The State ex rel. Fontelieu and others vs. Conrad DeBaillon, Judge, et al.
    Under Act-Uo. 40 of 1880, which regulates the manner of trying recused cases, the recused judge is stripped of all ooncrol over the case, which is transferred in its entirety to the judge selected to try the samo. If nine mouths elapse after recusation without a trial, tho cause must then be transferred to the district court of the nearest parish of an adjoining district, the judge of which is competent to try the cause. That order must emanate from the judge first appointed to try the case—who alone lias tlie legal authority to make the same.
    His selection of a parish ns the nearest parish within tlie meaning of the statute, will not he disturbed by the Supreme Court, unless glaringly erroneous or grossly unjust.
    This Court will not interfere with the exercise of a sound legal discretion by district judges. This Court will take judicial cognizance of the geography of the State and of the proximity to each other of the several parishes of the State.
    ^PPLICATION for Mandamus.

      Brema <& Hall and JV. Simon for the Relators,
    Respondents in propriis personis.

   The opinion of the Court was delivered by

Poci-ié J.

This proceeding is predicated on the following facts and incidents:

In May last, 1884, the relators herein filed distinct suits in the Twenty-first Judicial District Court for the parish of Iberia, contesting the election of their opponents as candidates for certain offices to which they claimed to have been legally elected.

Fontelieu, one of the present relators, who was then the judge of that court, recused himself on the ground of personal interest, and referred the three cases for trial to the respondent DeBaillon, judge of the twenty-fifth judicial district.

In the meantime, in consequence of certain proceedings which took place in the State Legislature, Frederick Gates, the other respondent herein, was provisionally appointed, and was qualified as judge of the twenty-first judicial district, under the provisions of Article 198 of the Constitution.

As the candidate who had been declared elected to that office, he is the defendant in the suit involving the title thereto, instituted by the relator Fontelieu. Hence he has not (as in law he could not) made any order rescinding the recusation of the judge of the court, ordered by his predecessor, in either of the suits which now concern us.

For reasons which are not exactly apparent in the record now before us, and which could not, at all events, be considered in the present proceeding, the respondent DeBaillon has not yet tried either of said causes.

. Hence application was made to him by the relators for the order contemplated by' section 5 of Act No. 40 of 1880, which regulates the trial of recused cases, which section reads as follows :

“That whenever any recused case, for the trial of which a district judge has been appointed, as provided in sections two and three Of this act, has not been tried in nine months from the date of the recusation, it shall be the duty of the district judge to order the transfer of such case to the district court of the nearest parish of an adjoining district, the judge of which is competent to try the cause.” * * *

Judge DeBaillon then made an order transferring the three cases to the nineteenth judicial district court of St. Ma.ry, as that parish was the nearest parish of an adjoining district to the parish of Iberia_ Relators complain that the judge’s order is erroneous, and they contend that under the law the cases should have been transferred to the district court of the parish of Lafayette, as they had prayed for in their written application hereinabove referred to. Hence their application for a writ of mandamus in order to coerce the respondent to transfer the cases to the parish of Lafayette.

At first glance, section 5 of the act of recusation, presents an apparent ambiguity as to which of the judges should make the order therein contemplated. Hence, relators have brought up both of the judges as respondents in these proceedings.

‘ But a careful consideration of the whole act leaves no doubt on our minds that the order of transfer must emanate from the judge to whom the case had been referred on the recusation of the judge of the court in which the suit was filed.

Section 6 of the act provides:

“That for the trial of cases in which a district judge shall be recused, the lawyer or judge appointed under sections 2 and 3 of this act, shall have and exercise the same powers as the judge (recused) may exercise in cases before his court, in which no causes of recusation exist, and all orders and decrees rendered by them, or either of them, shall have the same force and effect as orders and decrees reh dered by a district judge in cases where there is no cause of recusation.”

Hence, in treating of the effect of the identical order of recusation, which we are now considering, and of its status under the subsequent assumption of the office by Judge Gates, we said in the ease of the State ex rel. Mestayer vs. DeBaillon, Judge, 36 Ann. 830:

“It therefore follows, and it is virtually conceded, that under its effect the respondent became vested with jurisdiction over the cause as absolutely and as exclusively as would have been the case with a suit originating in his own court.

“The jurisdiction thus acquired under and by virtue of a judicial order must attach and continue until it has been destroyed or divested by equally competent authority in a direct order, not by inference or even by collateral proceedings.”

These views were reaffirmed in the case of the State ex rel. Segura vs. DeBaillon, recently decided and not yet published. As we have already shown, Judge Gates has as yet taken no steps or made- no orders with a view to disturb this condition of things. On the contrary, in his answer herein lie specially disclaims any authority or even any desire to assume or exercise jurisdiction in any of the matters involved in the premises.

Having reached the conclusion that Judge DeBaillon was the proper and the only authority which could legally make the order contemplated in the section, we have now to consider whether he has made the proper order. In his return lie states that, in his opinion, the parish of St. Mary is the nearest parish of an- adjoining district, within the meaning of the statute, and that from his knowledge of the issues presented in the several suits, the parish seat of St. Mary is by far nearer than the parish seat of Lafayette to the locality wherein were placed the polls contested in the pleadings.

We take judicial cognizance of the geography of the State, and we find no error in the reasons of the judge.

And besides, the very language of the statute imports the exercise of a certain amount of discretion by the judge who is intrusted with tiie power of making the transfer of such cases. And the exercise of that discretion must not be interfered with except in certain cases of glaring- wrong or of unbearable injustice.

Relator’s contention that, because the eases had been referred to Judge DeBaillon he had no power or authority to send them to any other district hut his own, finds no sanction under a proper construction of the statute. Under the provisions of section 3, the recused judge must appoint some district judge of au adjoining district, without being required to select the judge of the nearest residence. But under section 5, the selection must be made of the nearest parish—and it may occur that the judge selected in the first place is not the judge of tiie “nearest parish.” If tiie statute contemplated that the case should of necessity he transferred to the court presided by tiie judge first selected, language of easy conception would have been used to convey that idea. Had such been the intention of the lawmaker, lie'wonld not have taken the pain to require that the recused case should be transferred to a court, “the judge of which is competent to try the cause.’1'1 The law must contemplate, as it certainly requires, that tiie judge to whom the case had been referred by the recused judge is competent to try tiie cause.

Laws will not be construed as containing vain aud unmeaning provisions.

We find no error in the order complained of by relators, and hence they are entitled to no relief. Tiie writ of mandamus herein applied for is therefore refused, at the costs of relators.


author: Manning, J. Fennisr, J.

text:
    No. 9411.
    The State ex rel. Mary Levy vs. The Judges of the Court of Appeals for Parish of Orleans.
    It is of constitutional requirement that the rules of practice in and for the Supreme Court shall govern the circuit courts iu the matter of regulating appeals.
    Where the circuit court had made a rule requiring a certain detailed statement to accompany the original papers and dismissed the appeal of its own motion because the same liad not "been filed, tbis court will on certionri direct such dismissal to be sot aside be. cause not in conformity to tbe practice in thi* court, and because tlie Constitution has required that appeals to the cirouit court shall be tried on the original papers.
    "Where the law or a rule of court has imposed a duty on the clerk and he neglects to perform it, the punishment for bis fault will not he visited on the appellant hy a dismissal of his appeal.
    Tlio right of appeal is a legal and constitutional right and the judges of appellate courts have no power to defeat or destroy such a right for failure to comply with conditions imposed hy their own rules, but not sanctioned by any provision of law.
    Tho power of courts to make appropriate rules for the transaction of business before them, to require compliance with such rules and to enforce it hy proper orders and penalties, is not questioned, hut dismissal of the appeal is not a proper or lawful penalty and is one heyond judicial authority to inflict.
    A PPLICATION for Certiorari.

      W. F. and D. G. Mellen for the Relator.

      Waller M. Bogers and W. S. Parlcerson for the Respondents.
   The opinion of the Court was delivered by

Manning, J.

Levy the relator appealed to the Circuit Court from a judgment of the District Court against him for four hundred and fifty dollars in the suit of Alford vs. Ileyman and Levy. The Circuit Court dismissed the appeal of its own motion because the appellant had not complied with one of its rules requiring that the record of a suit must he accompanied by a detailed list of all the pleadings evidence and documents in the order of their filing certified by the clerk or counsel. Levy* asked the revocation of this dismissal and the reinstatement of the appeal, which being refused he now prays a certiorari in order that tho rightfulness of the Circuit Judges’ action may be inquired into and they be ordered to do what he alleges they should have done.

We said lately in the Forman case we might on a proper presentation inquire into the power of the Circuit court to adopt and enforce the rules so loudly denounced. That proceeding was an application for a mandamus which we refused. The writ of vcertiorari is invoked hy this relator and is the form proper to he used to obtain the relief now sought if obtainable,

The Constitution requires that causes on appeal to the Circuit courts shall be tried on the original record, and prescribes that the rules of practice regulating appeals to the Supreme court shall apply to appeals to the Circuit courts so far as they are applicable until otherwise provided hy law. Arts. 102-3. There has been no provision of law about it, so that it is a constitutional requirement that the rules of practice in this court shall govern the circuit courts in the matter of regulating appeals, and the requirement that the originals of pleadings, etc. shall suffice for the trial of appeals to the Circuit court is of equal constitutional dignity.

We certainly feel the utmost delicacy and hesitation in interfering with the enforcement of the rules adopted by our learned brethren of the Circuit court, but we must of necessity inquire into their power to make them and the enforcement of them when proper demand is made upon us.

All courts have power to make rules to facilitate the progress of business in them when not in contravention of the letter of the law and not hostile to its spirit. One of tlio objects of establishing the circuit courts was to diminish the cost of appeals in causes within a certain amount, and to effect this it was organically commanded that the original record should alone be used. No other papers should be required. The great object was to enable litigants to have their appeals heard without additional cost. Grant that the rule, requiring that a detailed list of the pleadings evidence and document shall accompany them, is one calculated to facilitate the court in the examination of them, and that the court had power therefore to make it, does it follow that so severe a penalty as dismissal is permissible—-a penalty that entails the denial of any hearing and abridges the right of appeal on the sole condition that the constitution has required, i. e. the production in court of the original records—a penalty too not contained in the rule and of the possible infliction of which the parties were not advised.

The fault of the detailed statement not appearing is primarily with the clerk, and it is settled practice in this court that litigants are not to be punished for his fault. Here the worst that could befal the parties would be delay until the clerk furnished the wanting paper, and if the practice here is to prevail in the circuit court, as under the constitutional direction it must, how can the parties be put in cluriori aasu by the circuit court by inflicting a penalty that deprives them of any hearing whatever 9

And it must be observed that no motion was made to dismiss. The adverse party had not asked the interposition of the court to cut off tiie appeal. Of course appellate courts may and do dismiss ex mero mota, but never where all has been done that the constitution has ordered to be done, when as in this case the constitution has descended into details and taken the pains to say that appellants need do no more than a particular iking, viz file the original records.

It lias often been said the right of appeal is a constitutional right and should not be needlessly abridged. The constitution has hedged this right, so far as relates to appeals to the circuit courts, with a special protective appliance in specifying what those courts shall or may require to be filed to entitle the appellant to a hearing.

We are constrained to conclude that the penalty of dismissal has not been judiciously inflicted, and while we iu no wise interfere with the rule of the circuit court, which does not prescribe the penalty of dismissal, we think sometime should have been given to comply with it.

It is therefore ordered that the judgment of dismissal be rescinded and that the Court of Appeals for Oilcans proceed with the trial of the cause after giving time to the appellant to comply with its rule touching the matter in hand.

On Application for Rehearing.

Fennisr, J.

Our desire that the learned respondents should know that we have carefully and maturely considered the grounds of their complaint against the decree rendered herein, impels us to say a few words on this application.

They claim that every court of record has inherent light and power to make appropriate rules for the transaction of its business. We cheerfully admit it.

They assert that Rule V of their court is a reasonable and proper rule. We have never disputed it.

They say that the power to make rules is nothing without the power to enforce them; and that the power to enforce implies the power to inflict penalties for their violation. Certainly that is ti tie.

But, obviously, there must exist limitations to the extent and character of the penalties which may be inflicted.

Certainly a man cannot be hung or sent to the penitentiary for broach of a rule of court.

We are not called upon to define the nature and extent of the penalties which may be imposed, nor of the powers possessed by courts in relation thereto. They are no doubt sufficient for the purpose.

The simple and radical question presented for our determination is, whether any court possesses the power to defeat or destroy the legal and constitutional right of appeal for any cause not founded on law.

The Constitution and laws grant the right of appeal. They prescribe the conditions on compliance with which it may be exercised and enjoyed. Whence is derived an authority in courts to add to these conditions and to destroy a right of appeal founded on compliance with every condition prescribed by law, for non-compliance with a mere rule of court, which, however competent and proper for the convenience of judges and for the ■ efficacious administration of justice, has not been prescribed by the law-making power as essential to the taking or maintenance of the appeal ?

The question is a grave one. If courts may add such conditions at all and enforce them by the penalty of dismissal, it would be difficult to impose limitations upon such a power; and a right guaranteed by legislative authority would have no protection against arbitrary judicial discretion.

In denying such a power we impose a limitation upon ourselves no less than upon other appellate courts.

We have not discovered in our jurisprudence any conflict with this denial.

Dismissals of appeals for untimeliness of application, for improper day or place of return, for failure of timely filing, for defectiveness of the transcript, for incomplete certificate of the clerk, and the like, are all founded on failure to comply with express provisions of the law on those several subjects. Under Article 103 of the Constitution, no doubt these legislative “ rules of practice regulating appeals to and proceedings in the Supreme Court” apply to the courts of appeal, as far as applicable, and may be enforced in the same way.

But though we have adopted several rules not founded on legislative provision, and claim the right to compel their observance by appropriate orders and penalties, we are not aware that this Court has ever assumed the power to dismiss an appeal for non-compliance therewith. Thus our first rule prescribes very minute regulations for the confection of transcripts, and particularly one, quite analogous to the rule here under consideration, requiring that “an accurate alphabetical index should be attached to and form part of every transcript,” containing certain designated references.

To say that Bule I is often violated would, we regret, be less correct than to say that it is rarely ever complied with. We have often animadverted on the defectiveness of transcripts for non-compliance with this rule; but we have never supposed that this could furnish legal ground for dismissing the appeal.

Bow the law may be searched in vain for any provision of law embodying the requirements of Bule V of the Court of Appeals. It is a pure judicial regulation, and however appropriate and essential it may be for the proper exercise of their jurisdiction by those tribunals, aud whatever authority they may have to enforce it by appropriate orders and penalties, we are constrained to conclude tliat they, like ourselves, are without authority to punish its non-observance by dismissal of the appeal.

This raises a distinct question of judicial power and brings the case -within the authority of the Liversey and Hero cases as proper for the exercise of our supervisory jurisdiction through the writ of certiorari.

The power conferred upon us by Article 90 of the Constitution, imposes duties, the delicacy of which we duly appreciate; hut, oven though the learned and able respondents may differ from our opinion, we trust they will be assured that we have acted under a full sense of the respect due them, and only in obedience to our conscientious convictions of duty.

Rehearing refused.


text:
    No. 9409.
    The State ex rel. New Orleans Gas Light Company vs. Judge Division “C,” Civil District Court, Parish of Orleans.
    A mmdamius does not lie to compel the granting of an injunction, wliore the averments of the petition show that, if allowed.it would, or might, clash with another injunction issued by another court, apparently first seized of jurisdiction over the same matter, in a litigation between the same parties,
    A PPLICATION for Mandamus.

      T. J. Semines & Payne for the Relator.
    Respondent Judge m propria persona.

   The oxiinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus.

The relator complains that he has presented to the Civil District Court a petition in which, after setting forth sufficient reasons, ho prayed for an injunction to prevent Lemarié, the defendant in the suit, from igniting, burning, or using, in any way, the gas manufactured by it, which flows through its maius and pipes, and is introduced into the dwelling-house of said defendant in this city; that the judge of said court, to whom the case was allotted, illegally declined to allow him such injunction, and that he is entitled to the remedy.

The judge returns mainly: that the reason for which he refused the relief is, that the petition submitted discloses the fact that the question of the right of the relator to cut off the supply of gas from the premises of the same defendant, has been submitted to one of the city courts by means of a suit instituted by said party, wherein the relator has been enjoined from cutting off such supply of gas; that said city court, having been thus apparently first seized of jurisdiction of the subject-matter, he felt that lie could not issue the injunction without interfering with and impinging upon the jurisdiction of said city court. The district judge acted discretely.

In the case of the State ex rel. the New Orleans Gas Light Company vs. Judge Second City Court, just decided, which discloses an application for a prohibition to prevent the judge of said court from taking cognizance and determining the matter involved in the suit to which the district judge refers, we have held that said city court had no jurisdiction over such a controversy, and granted the writ.

From the averments made by the company in its petition to the district court for an injunction, we think the district judge was authorized to decline the relief asked, as he did.

The objection of the district judge has ceased to have any foundation to rest upon. A renewed application for the same relief may prove successful. If, upon a proper representation of the facts subsequently occurred, he was to decline, the relator might not be without remedy.

It is, therefore, ordered and decreed that the application herein be dismissed, with costs.