author: Waticins, J.

text:
    No. 9939.
    The State of Louisiana vs. Jake Durr.
    The rule that the right of peremptory challenge is waived when the juror is passed over to the opposite party, cannot be maintained without qualification; but it must be exercised before tbe juror is accepted by the opposite party and commenced tobe swern.
    Neither the prosecution nor the accused, though he he one of two, or more, jointly indicted and on trial, can he heard to complain of peremptory challenges tendered by the other.
    Evidence pertaining to collateral issues, disconnected with the charge against the accused, cannot be introduced. Same would be confusing and misleading to the jury.
    It is improper that the trial judge should give to the jury a special charge which contains statements of fact, although hypothetically stated, if likely to influence the miud of the jury in reference to the facts proven in the case.
    The judge is not forced to adopt the language in which defendant's counsel may couch a requested special charge; he may recast the propositions and submit them in his own terms. When special instructions asked for, are partly correct and partly erroneous, the judge is neither bound to affirm nor repudiate it as a whole, but he may restate it in his own terms.
    The correctness of the refusal of the district judge to sign one bill of exceptions cannot be tested by the presentation and signing ot another, with reasons assigned. It must be presented in a different form of proceeding.
    A PPEAL from the Tenth District Court, Parish of DeSoto. il Hall, J.

      M. J. Cunningham, Attorney General, and J. C. Pugh, District Attorney, for the State, Appellee:

      1. A tender of tlie juror to tlie accused is no waiver of the right of peremptory challenge. Wharton, P. and P. §675; Waterman, C. D. P. 602 (140); Wharton, C. P. and P. 672; Bishop on C. P., Yol. 1, § 945; Proxfat Jur. Trials. §§ 105, 165; State vs. Roland, 3S Ann. 19.
    2. The rejection of a juror by the trial judge, even if erroneous, affords of itself no legal ground of complaint to the accused. 1 Bishop O- P. § 926; State vs. Ostrander, “13 Iowa, 435$” Wharton, Or. PL and Pr., § 620; State vs. Barnes, 34 Ann. 395; State vs. Eloi, ib. 1195; State vs. Farrar, 35 Ann. 315. This is no longer an open question in criminal jurisprudence. State vs. Creech, 38 Ann. 481; State vs. Shields, 33 Ann. 1410.
    3. A witness caunob be interrogated, even on cross-examination, about immaterial and collateral matters.
    4. General character for “ badness ” or “ infamy ” is inadmissible. Wharton Or. Ev. §§ 472 484 and 486.
    5. The test of whether a fact inquired of, on cross-examination, is collateral, is: would, the cross-examining party be entitled to prove it as a part of his case, tending to establish his plea. Ib. § 484, and authorities therein cited.
    6. The court is not bound to give instructions in the words asked for, however material might be the instructions; but if given substantially, so as to meet the whole of the point, it is sufficient. State vs. Carr, 22 Ann. 407; State vs. Porter, 35 Ann. 1159.
    7. The trial judge may withdraw an erroneous instruction, and correct bis error. State vs. Jones, 36 Ann. 204. Can withdraw illegal and incomplete evidence of the jury. State vs. Davis, 34 Ann. 351; State vs. Parce, 37 Ann. 269.
    8. The trial judge is limited to tlie law, and cannot trench on the facts. R. S.
    9. The trial judge is notrequired to give a special charge when it is substantially covered by his general charge to the jury.
    10.Proper way to secure the signature of the tiial judge to a bill of exception is by mandamus. 17 Ann. 287; 26 Ann. 67. The judge properly refuses to sign a bill of exception which does not conform to the facts.

      B. W. Sutherlin and Seales & Lee for Defendant and Appellant.
   The opinion of the Court was delivered by

Waticins, J.

The defendant was indicted for an assault upon Julia Hutchins, with an intent to commit a rape, and from a verdict of guilty and sentence by tlie court to imprisonment for one year at bard labor, he has appealed.

The alleged irregularities in tlie proceedings and errors of the trial judge are presented by sundry bills of exception reserved for the accused.

I.

The first one was taken to the judge’s allowing the district attorney to peremptorily challenge a juror after lie had been examined on tlie part of the State on his voir dire and surrendered to defendant’s counsel for examination.

The argument is that the State had fully examined the person tendered as a juror, and had accepted him, and that the district attorney had no right to reconsider his acceptance and selection, and thereafter peremptorily challenged and discharged the person from' service as a juror.

The trial judge ruled that the right of either party to challenge a juror may be exercised at any time before the juror is sworn, and that defendant has no right to complain, because he may only exercise the right of rejection, and not the right of selection, by the State.

In this State the right is given to the prosecution to exercise peremptory challenges, as well as to the accused. R. S. 997, 998, Act 36 of 1880.

At common law the prosecution was not entitled to peremptory challenges.

Whar. Crim. Plead, and Practice, Sec. 012, that author says-: “ Under ordinary circumstances the defendants right to a peremptory challenge is waived when the juror is passed over to the court or the prosecution, though this opinion cannot be maintained without qualification, as, on due cause shown to the court at any moment before-the case is opened and the juror in question is sworn, it will permit the challenge.

“ In any view, the right ceases when the panel is complete and accepted.” Ibid, Sec. 617.

In another section the same author says, in discussing the same subject, “that the better opinion is that, on due .cause shown, the-right may be exercised at any period down to the completion of the panel.” Ibid, Sec. 677.

Wé do not understand the phrase “ on due cause shown,” occurring in these two quoted sections, to relate to challenges for cause. Same' must be understood in the sense of reason, or excuse — -i. e., that the-defendant may make a,peremptory challenge, after he has passed the' juror, if he can assign to the court a reasonable excuse for the delay in preferring it. Peremptory challenges alone are under discussion in those sections.

This being the rule at common law, where the prosecution- han no right to exercise peremptory challenges, there is no good reason wliy it"should not apply to this State, where the prosecution is so entitled:

In treating of its exercise in those States whose laws are similar .to our own, Wharton' says: “ The challenge, either by the prosecution dr the defense, must be before the oath is commenced, down to which time it exists. The moment the oath is begun it is too late.” Ibid. See. 672; 1st Bishop Crim. Plea, and Prac. Sec. 945. But same author' says: “It is no waiver of the right to challenge for cause, for the defendant to pass tlie juror over to the court, or to the opposite side for examination.” Ibid. Sec. 675.

The rule laid down by this Court’s predecessors in State vs. Cummings, 5 Ann. 332, is that “the State should first exercise the right of challenge for cause or peremptorily, and present the juror to the accused as a good and lawful juryman; that the accused should then, exercise his right; and that the State should not be allowed to challenge after the juror has been accepted by the prisoner.”

Wharton says the right of peremptory challenge is a right not to select, but to reject.” Ibid. Sec. 620.

Hence, neither the State nor the defendant has any right to complain of peremptory challenges tendered by the other. ,

“ Neither of two defendants, in one indictment, on a joint trial, has' cause to complain of a challenge by the other.” Ibid. Sec. 680.

In United States vs. Marchant, 12 Wheaton 482, the Supreme Court say: “The right, therefore, of (peremptory) challenge does not, necessarily, draw after it the right of selection, but merely of exclusion. It enables the prisoner to say who shall not try him; but not to say who shall be the particular jurors to try him.” 4 Blackstone, p. 353.

It is clear that the district attorney had the legal right to peremptorily challenge the juror, E. V. Flores, at any time prior to his acceptance by the accused.

II.

A second bill was reserved by the defendant’s counsel to the refusal of the court to allow him to ask Will Collins — a witness for the. State under cross-examination — if he had “seduced his cousin, Julia Laurent, who lived in proximity to his mother’s house.” The ground on which counsel maintains the competency of the testimony is “that it will show that he is a seducer; and the true motive of the said Oscar Collins and. Will Collins, brothers, in going, at that‘time, to the house of the prosecutrix, their cousin; that their true purpose and motive (in) going there was * * * * for the- purpose of entrapping and overtaking the defendant, at the house of the prosecutrix, by prior arrangement and agreement between them,” etc.; * * * “and that their going to the house was not by accident, or for the purpose of protecting the prosecutrix against the defendant,” etc.; * * * * * * “ and that the said Oscar and Will Collins and defendant were rivals and competitors for the illicit love of the prosecutrix,” etc.

The trial judge assigns the following reason for disallowing an answer to the question propounded, viz: “ The matter inquired about, the seduction of Julia Laurent by Will Collins, occurred five or six years ago, and that unfortunate girl has been dead several years ; and the court was unable to see how that circumstance could have any' relation to this case, or any tendency to prove a conspiracy, etc., as claimed, especially as there was no evidence whatever of a conspiracy, or that the Collinses went to the prosecutrix’s house for any improper purpose,” etc.

We agree with the district judge. If admitted, and the answer had been an affirmative one, it could not have effected in any way the issue joined on the charge of assault, with intent to commit a rape. The alleged seduction was a collateral issue not on trial, and totally disconnected from the alleged criminal assault by the accused upon an entirely different person.

The ruling is approved.

III.

A third bill was reserved by the defendant’s counsel to the refusal of the trial judge to give the jury the following special charge, viz :

“In cases of this kind, the evidence of the prosecutrix is to be' received with caution. In coming to your conclusion as to whether' the defendant assaulted the prosecutrix with intent to rape her forcibly and against her will, if yon should find that he assaulted her at all, you must take into consideration all the suerounding circumstances at the time. The question of intent is one of fact to be deduced from all the circumstances surrounding the case. If you should find that any assault was made by the defendant on the prose-, cutrix, then, in coming to your conclusion as to whether such assault was made with intent to rape her, notwithstanding such resistance as she might make, such facts, as that the assault was made in the day’ time; .in a place near the public roads, or railroads, of depots, houses or places open to public view; .occupied by, and frequented by people; within reach of assistance, and within sight and' call of ’ assistance, and that she made' no outcry or call for assistance, and made no effort of escape when she had opportunity to do so; or that' she remained alone in the house, so situated, with the defendant, for any considerable period of time, after she suspécted the intent of defendant to rape her; or that she quietly remained aloné in' the"’ bouse, so situated, with defendant, for a considerable period^ of timé after such alleged assault, and that she oniy made outcry to a person who unexpectedly approached (he house, and who was not- discovered until immediately in the presence of defendant and prosecutrix, who were then, or had been for some considerable period of time, seated, in quiet conversation, after the alleged assault had been made, if any assault had been made; and, all such circumstances, justify strong-inferences that the assault, if any assault was made, was not made with the intent, on defendant’s part, to rape the prosecutrix, notwithstanding all resistance she might make.”

The court refused this charge as a whole, but accepted part of it The portion of the special charge adopted by the court and read to the jury was the second and third sentences thereof as follows:

“ In coming to your conclusion as to whether the defendant assaulted the prosecutrix with intent to rape her forcibly, and against her will, if you should find that he assaulted her at all, you must take into consideration all the surrounding circumstances at the time. The question of intent is one of fact to be deduced from all the circumstances surrounding the case.” .

The bill further recites that defendant’s counsel had requested previously, that a written charge be given, and that it was given; and it charges that, after having declined to make the special charge requested, the trial judge announced orally, “ that in lieu of the remaining portions of said special charge,” he would read certain sections of Wharton’s Criminal Law, which are copied into the bill.

lie insists that the action of the court in refusing said special charge, “ as presented in writing, was illegal, and that it was the duty of the court to have read to the jury the special charge in full, as presented, or to have rejected it in full.”

He further excepts to the oral statement made by the judge to the jury, in declining to make the special charge requested; and to his reading law to them from books, as applicable to the case, on the ground that the accused was entitled to a charge exclusively in writing.-

'Further, that the attempted withdrawal thereof from the jury, after objection was made by the defendant’s counsel, and the attempted reduction of it to writing, was illegal. That the written charge had already, theretofore, been completed and read to the jury, and that the additional charge, reduced to writing and read to the jury, was not requested by the defendant or the State; and that the court, after having furnished the written charge to the jury, had no right to write., ajnd read other and additional charges or sections of the law;- and .the action of the court was calculated to confuse and mislead the jury.” •

The bill is in extenso and purports to recite much of the evidence-that was adduced upon the trial, and which was reduced to writing, and appears in the record annexed to bill No. 2.

The judge, in the reasons that are annexed to this bill, makes the statement that the special charge ashed for contains a partial statement of the evidence, with facts proved intermingled with what was not proved,- and partial statements of the testimony of prosecutrix, omitting the reasons she gave for not making an outcry or escape, viz: that defendant threatened to kill her if she cried out or attempted to escape, which, if given by the court to the jury, would have been likely to have influenced their decision on the facts by reciting in their-hearing and refreshing their memories upon a partial and incorrect statement of them, without giving them the law applicable to the' whole and correct statement of facts. * * * That if the court had given this special charge, as asked for, it would have been charging the jury on the facts, in violation of R. S., Sec. 991,” quoting it.

“It will be observed that the statement of facts in the special charge rejected, is not given hypothetically, but'in the narrative form.”

It is elementary that the trial judge is forbidden to charge the jury on the facts; and it is equally improper that he should give them in charge, partial statements of fact, although] hypothetically stated, if likely to influence their minds upon the facts in the case.

Hence the rule announced by Wharton, that the judge is not “forced to adopt the language in which counsel may couch instructions prayed for; but may recast the propositions, and submit them in his own terms; nor is he, when an instruction asked for is partly correct, and partly erroneous, bound either to affirm or repudiate it as a whole ; but as has been seen, he may restate * * the law in his own terms.” Whar. Crim. Plea, and Prac., sec. 712,

This Court has followed that rule in State vs. Porter, 35 Ann. 1159.

In State vs. Jackson, 35 Ann. 769, this Court held that where the “charge requires qualification, limitation or explanation, the refusal of the judge to give it will not be disturbed.” 35 Ann. 775, State vs. Riculfi; 36 Ann. 84, State vs. Chevallier.

The reasons assigned by the judge for his ruling appear to be ample and strictly in accord with the authorities quoted.

In reply to the counsel’s objections to the judge’s oral statements, and explanation of his refusal to give the special charge requested, to the jury, he says: “The oral remarks witlidrawn and given in writing, it is believed, could not have prejudiced the defendant.”

The course pursued by the trial judge in this particular, finds sanction in decisions of this Court. 36 Ann. 204, State vs. Jones; Waterman’s Crim. Dig. pp. 379, 624.

Whether the oral observations made by the judge were withdrawn, or in substance reduced to writing and read to them, is of no practical importance. The defendant’s counsel contends that there is a fatal variance between the judge’s oral statements and his supplemental •written charge; and prejudicial to the accused.

• Neither the record nor the bill of exceptions discloses such variance and we cannot therefore consider that question.

IY.

The fourth bill presents an objection to the judge’s declination to give another special charge and which he refused on the ground that the matter covered by it was substantially embraced in the written charge already given to the jury.

The charge given to the jury was not brought up with the transcript and is not included in it, and we cannot make the comparison, and •must'accept the judge’s statement as correct.

It was quite unnecessary that any part of the charge should have been repeated. Such a course would have been confusing and misleading to the jury.

V.

The fifth bill was taken to the judge’s refusal to grant the accused a new trial.

The affidavit appended to the motion is elaborate, and to the effect that, in the hurry of the preparation of the special charge discussed in Bill No. 3, defendant’s counsel made an accidental mistake and omission therefrom, of the words “if you find such circumstances to have been proven,” and which it was his intention to have incorporated therein, and that he was unaware of such a mistake having been made until some time afterward ; and that he subsequently proposed to add same thereto, but was refused permission by the judge so to do; and that same exercised a prejudicial effect upon the special charge requested and refused.

On this ground only his application for a new trial rests, though the bill of exceptions to its refusal mentions the three first bills taken.

The judge assigns as the reason why he refused to grant a new trial that he did not believe that defendant was prejudiced by any ruling he had made, or by the failure of his counsel to present his special charge in hypothetical, rather than narrative form.

We do not regard the omission from the requested special charge of the qualifying words as having produced any material difference in the ruling of the court, or as having exercised any injurious effect upon the verdict of the jury. The judge gave them in charge the substance of the requested charge; and whether the statement of facts, or the ref•erence made to them iu the charge had been stated hypothetically, or as proven facts, the same should not have been given to the jury, if the judge believed they might unduly impress the minds of the jury as to what were proven facts. The charge of the judge should in no wise trench on the facts. It must be strictly confined to an explanation 'of the law applicable to the case. .

The application for a new trial was properly refused.

YI.

The sixth bill of exceptions was taken to the refusal of the judge to sign another bill of exceptions with the special charge, so altered as to ■conform to the theory of defendant’s counsel in reference thereto, as set out in his affidavit for a new trial annexed. Among other reasons the judge assigns for refusing to sign the bill in this form, is that “it would be to sign what is not true, as the court never refused the charge ■as therein presented.”

In this refusal the eourt was correct. But, if error there was, same could not be reversed in this form of proceeding.

Finally, our study of this case has convinced us that defendant has had a fair trial.

Judgment affirmed.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 9872.
    The State ex. rel. E. Daboval et al. vs. The Police Jury, Parish of St. Bernard.
    Wlien the appealability of the case does not clearly appear, from the face of the pleadings, to determine the question, affidavits relating to the amount or value in dispute filed, in this Court will be considered.
    In a suit attacking a franchise or privilege granted to a person or corporation, and it appears such franchise or privilege exceeds in value §2,000, this Court has jurisdiction.
    A mandamus will lie to compel the performance of duties purely ministerial in their nature, and when they are so clear and specific that no element of discretion is left in their performance, but that as to acts or duties necessaiily calling for the exercise of judgment and discretion on tho part of the officer or body at whose hands their performance is required, mandamus will not lie.
    APPEAL from the Twenty-fourth District Court, Parish of St. Bernard. Livandais, J.

      Hampden Story and Sambola <& Diteros for the Relators and Appellees :
    1. Courts of justice are hound to interfere with the discretionary power of a municipal . - corporation, when the exercise thereof is unreasonable, unjust, oppressive, in-restraint of trade, oi in contravention of common right, or tends to create a monopoly. Const® 50,248, Act of 1884, Ho. 92; Cooley, 192, 200, 203; 33 Ann. 1182; 18 Ohio 300 ; 1 Dner, H. Y. 494; l Dillon 394 ; Act of 1880, Ho 101, § 9 ; Boone, § 292, 296-7, 310 ; 45111. 95; 78 111.405; Dillon 356; 7 Paige 261; 24 IVis. 542; 46 III. 490 ; 4QX. Y. 273; 3 Pick '46240 Mo. 550; 68 Mo. 544; 29 Wis. 307 ; 30 Wis. 322; 43 Iowa 524.
    2. A mandamus lies to enforce, not only the performance of a duty, but also any legal right when the slowness of ordinary legal forms is likely to produce great delay and defeat the ends of justice, as well as in cases where there is no other specific remedy. Q. P. 829; Moses on Mandamus, 18 ; 103 111. 552 ; 7 Cal. 286; 1 R.. 496; 13 Ann. 291; 38 H. J. 262.
    3. An affidavit, that tho facts are true to the best of affiant’s knowledge and belief axe sufficient, is sufficient in law. 1 It. 316; 13 Ann. 89.
    4. Exceptions to forms are waived by going to trial without a previovs decision thereof. 23 Ann. 255; 18 Ann. 207; 26 Ann. 312; Vol. 2Dillon825, 82S, 906.
    5. An affidavit to an original petition dispenses with swearing again to a supplemental petition, asking for a subsidiary writ or remedy on the very same sworn allegations. • Neminem cogit ad vana, 7 It. 444 ; 18 Ann: 243,

      F. G. Zacharie on tlie same side.
    77. Howard McCaleb and ¿Tames WilMnson for the Respondents and Appellants:
    1. Mandamus will not lie to compel the members of a police jury to perform an act resting in their discretion. High’s Ex. Leg. Remedies, §§ 24, 34, 42, 325 ; Dillon’s Municipal Corporations, § 669; 2 La. 395; 21 Ann. 352; 20 Ann. 518; 22 Ann. 603; 23 Ann. 333; 29 Ann. 692.
    2. The authority conferred upon police juries by Art. 248 of the Constitution is a delegation of the police power, with tho exercise of which the Courts cannot interfere without usurping jurisdiction.
    3. The police jury cannot be compelled to grant a special permit to carry on a slaughterhouse. Tlie Constitution only requires them to pass general “ ordinances designating the places for slaughtering,” and expresslly prohibits the restriction of the business to the lands or liouses of any individual or corporation.”
    4. In executing Art. 248 of the Constitution, the police juries act in the dual capacity of police juries and hoards of health. Sec. 3. Act 92 of 1882.
    5. The act creating the* Crescent City Slaughterhouse (Ho. 118 of 1SG9), and designating the limits for the business, is not the ordinance authorized by the Constitution, hut a State law, which hag been expressly repealed hv the Constitution itself.
    6. Motives and influences alleged to have actuated members of the police jury in their official conduct, cannot be inquired into collaterally. Dillon on Municipal Corporations, § 248. They may he removed from office (Const. Art. 201; Act 135 of 1382) ; or punished under the penal laws for bribery, corruption, oppression or misdemeanors. Const. Art. 173; Act Ho. 4 of 1873; Rev. Stats. 8G8 and. 869.
    7. Villavaso vs. Barthet, recently decided, settles this case.
    8. “A mandamus cannot be joined to au injunction.’' Mannings Unr. Oaa. 81.
    7?. T. Beauregard on tlie same side.
   On Motion to Dismiss

The opinion, of the Court was delivered by Todd, J.

The relators, who had organized themselves into a corporation known as the “St. Bernard Slaughterhouse Company,” applied to the police jury for the privilege of erecting, maintaining and carrying on a slaughterhouse at a place designated in said parish. .

This application was refused, and the relators then resorted to a mandamus to compel them to grant the privilege asked, and from a judgment making the mandamus peremptory defendant appeals.

The motion to dismiss is on the grounds:

1. That the matter in controversy does not exceed $2000 in value.

2. That if it does exceed that sum, that the appeal bond is insufficient in amount.

1.

The pecuniary interest involved in the controversy does no explicitly appear from the pleadings, and in the record we find several affidavits, among them that of the president of the police jury of the parish, that the pecuniary interest of each party to the suit exceeds two thousand dollars.

These affidavits, in connection with the averments of the petition in regard to the capital stock of the corporation ($100,000), and the purposes and objects of the corporation leave no doubt on our minds that the value of the franchise sought by the relators far exceeds in value the judicial amount.

Tl.

The appeal bond was fixed in the order of the judge ; and in a suit of thiseharacter it was sufficient for a suspensive appeal.

Motion refused.

On the Merits.

Watkins, J.

The relators are the St. Bernard Slaughterhouse Company, a corporation organized under the laws of the State, for the purpose of conducting the business of slaughtering cattle; and the individual members thereof.

They announce the purpose of this corporation to be, to erect and maintain all the buildings and wharves that are necessary to promote their business, “on the property secured by them, and situated * * in the upper portion of the parish of St. Bernard, adjacent and contiguous on the upper Une to the property and limits of the Crescent City Slaughterhouse and Live Stock Landing Company.” They allege their right under the Constitution and laws of the State to prosecute said business “upon their property,” and aver “that it is made the duty of the police jury to grant them a permit to locate a slaughterhouse on the property above mentioned;” and that said locality is the one that has been, by law, assigned as the proper one for such purposes.

They further aver that the citizens of that vicinity favor their enterprise, and united with them in their petition to the police jury, requesting “the right to exercise the business of slaughtering cattle and other live stock, in the parish of St. Bernard, on the property of Mrs. JS. Mabovalf’ but that “notwithstanding the law and the facts, the said police jury arbitrarily, dictatorily, without a semblance or warrant of law, and without plausible reason or excuse, refused to sanction their plain, clear, indisputable constitutional right and privilege to pursue, prosecute and carry on the business of slaughtering cattle and other live stock ; and to erect, maintain and operate a slaughterhouse or abbatoir on the property secured by them.”

They charge that two of the members of the defendant police jury who participated in the proceedings of that body and voted against their petition were directly interested in its defeat and in favor of the Crescent City Slaughterhouse Company.

They further charge that another member declined to vote because of his apprehension that he might forfeit some political preferment or station. And that the appointment of another member was secured for the express purpose of defeating their application. They aver that the two last indicated cast their votes against their petition at the dictation of the Crescent City Slaughterhouse Company.

Relators represent that the action of the police jury in arbitrarily refusing their application was in violation of their clear legal right, and was controlled by a monopoly abolished by the State Constitution, and same is, in effect, an attempt to preserve and perpetuate the exclusive privilege and monopolistic feature of said corporation in plain violation of law and the settled-jurisprudence of this court and of the Supreme Court.

They represent that they have exhausted all ordinary means of securing their rights in the premises; that they are without remedy by means of an ordinary suit, and they pray for a writ of mandamus to compel the defendant police jury “ to proceed to hold a meeting and grant the privilege prayed for in this petition, by extending the limits already assigned by law to their property.”

Defendant excepted that relator’s petition disclosed no cause of action :

1. Because the power delegated by Article 248 of the Constitution is legislative in its character, and its exercise is discretionary and beyond judicial control.

2., It being the parochial board of health, its sanitary measures are not judicially reviewable, unless iu violation of the Constitution. -

3. Its declination of relatoi’s application for the establishment of a slaughterhouse in the first ward of the parish was the determination of a sanitary measure and the exercise of a discretion vested in it by law, and beyoud the reach of mandamus.

4. That the action relators complain of was taken by the respondent in its collective and representative capacity, and not ‘by the members individually and separately; hence, the personal motives of the individuals in casting their votes for or against their petition cannot be canvassed or inquired into, particularly in a mandamus proceeding.

A mandamus is a summary proceeding and triable out of term time and at chambers, therefore the strictness of ordinary rules of practice may be properly relaxed iu such case, and exceptions and answers plead conjunctively, and disposed of in one judgment.

I.

The important question raised by the pleadings is whether relators have shown a cause of action to entitle them to judgment.

Are the alleged duties of the respondent discretionary or ministerial ? Do the provisions of Art. 248 of the Constitution authorize relators’ averments 7

It provides that “the police juries of the several parishes * * * shall alone have the power of regulating the slaughtering of cattle and other live stock within their respective limits; provided, no monopoly or exclusive privilege shall exist in the State, nor such business be restricted to the land or houses of any individual or corporation; provided, the ordinances designating the places of slaughtering shall obtain the concurrent approval of the board of health or other sanitary organization.”

Prom the foregoing provisions it is manifest

1. That the police jury of St. Bernard alone has the power of regulating the slaughtering of animals thereon.

2. That in so doing it is clearly contemplated that its members shall act collectively, and through ordinances adopted by them, in making selections of localities suited thereto.

3. That such ordinances shall receive the concurrent approval of the health authorities of the parish. Such approval is a condition precedent to any locality being selected. It is only with the concurrence of tile health authorities that any valid selection can be made. An ordinance purporting to regulate the slaughtering of animals without the concurrence of the health authorities would.be void.

In order that, in any case, the police jury may obtain the concurrent approval of the health authorities, it must, of necessity, first consult the health of the inhabitants in the locality of the proposed establishment for slaughtering animals.

This necessarily involves the exercise of a very delicate discretion on their part.

But, while the organic law does require the concurrent approval” of the health authorities, it does not subordinate the action of the police jury to their control. The law does not deprive the police jury of its power of regulating this business, or of selecting the place or places at which same maybe established and carried on. It does not oblige that body to select any particular place or locality such sanitary authority may designate. . It can exercise the right of approval or disapproval of the selection made by the police jury. It may reject, but cannot select.

Applying these piiuciples to the case in hand, it is obvious that mandamus is not the proper remedy whereby the relators can obtain relief. The duties that are imposed by law on the respondent are not ministerial, but essentially and purely discretionary.

This, relators impliedly admit by charging that the motives which actuated certain of the members of the police jury were bad, and that their votes were improperly influenced against their petition. Eor, if the duties thereby imposed are ministerial, and in the exercise of which they had no discretion, the particular motives by which certain members were actuated, need not be taken into the account. But if they are discretionary, and involve the exercise of judgment and volition, same cannot be controlled by mandamus though the discretion lias been abused.

Should the refusal of the mandamus result in the maintenance of a monopoly of the business of slaughtering animals by some other corporation, its duration will be temporary, and will depend upon the application of the proper remedy by interested individuals.

II.

High defines the writ of mandamus thus :

“ The modern writ- of mandamus may be defined as a command issuing from a common law court of competent jurisdiction, in the name of the State or sovereign, directed to some corporation, officer or inferior court, requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from the operation of law.’’ High’s Ex. Legal Rem., Sec. 1.

Our Code defines it to be “an order * * * addressed to an individual corporation or court of inferior jurisdiction, directing it to perforin some certain act belonging to the place, duty or quality with which it is clothed.” C. P. 829.

Relators demand the right to erect, maintain and operate a slaughterhouse for the purpose of slaughtering animals on the property of Mrs. E. Daproval, in the parish of St. Bernard, and in the vicinity of the Crescent City Slaughterhouse Company. Was that “ the particular duty” of the respondent police jury specified in the organic law? Was that “a certain act belonging to the place, duty or quality with which ” the respondent was clothed by law ?

These questions must be answered in the negative.

High says that “ the most important principle to be observed in the exercise of the jurisdiction by mandamus, and one which lies at the very foundation of the entire system of rules and principles regulating the use of this extraordinary remedy, is that which fixes the distinction between duties of a peremptory or mandatary nature and those whieh are discretionary in- their character, involving the exercise of some degree of judgment on the part of the officer or body against whom the mandamus is sought. * * * * Stated in general terms, the principle is that mandamus will lie to compel the performance of duties purely ministerial in their nature and so clear and specific that no element of discretion is left in their performance; but that, as to all acts or duties necessarily calling for the exercise of judgment and discretion on the part of the officer or body at whose hands their performance is required, mandamus will not lief High’s Ex. Legal Rem., Sec. 24.

This Gonrt had occasion, recently, to quote the latter paragraph with approval. 38 Ann. 923, State ex rel. Gaynor vs. Judge. In so doiug we followed the uniform current of our own jurisprudence. 29 Ann. 264, State ex rel. Bank vs. Bowd; 28 Ann. 932, State ex rel. Longstreet vs. Johnson; 29 Ann. 146, State ex rel. Martin vs. Police Jury; 28 Ann. 905, State ex rel. Beebe vs. Judge; 32 Ann. 549, State ex rel. New Orleans vs. Judge; 34 Ann. 1114, State ex rel. Luminais vs. Judges; 36 Ann. 200, State ex rel. Mentz vs. Judges.

III.

Without elaborating the argument, it is sufficient to say that' plaintiffs’ injunction must fail for tlie same reason that the mandamus failed.

It is our conclusion that the judgment appealed from is erroneous, and should be reversed.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be avoided, annulled and revoked; that the preliminary order be set aside, and the peremptory mandamus be refused at relators’ and appellees’ cost in both courts.


author: Fenner, J.

text:
    No. 9862
    New Orleans and Carrollton Railroad Company vs. Daniel Darms.
    When a lease is silent as to tlie use which is to be made of the leased, premises, it does not follow that the lessee may make what use of them he pleases; but he is still bound, to enjoy the thing “according to the use for which it was intended by the lease.” G. C. 2710.
    In ascertaining the use so intended, resort is to be had to surrounding circumstances, such as the nature and situation of the premises, the use to which they had been previously aptplied, the occupation and character of the person applying for the lease, etc.
    In aid of such circumstances, parol evidence may also be received to show that during the negotiations the lessee had been expressly notified that a particular use, foreign lo tho destination of the premises, would not be permitted. Such evidence does not violate the general rule prohibiting parol to vary or contradict a written contract, but falls under the exception admitting parol in order to ascertain the nature and qualities of the subject matter of the contract. Under the facts of this case, an injunction to prohibit the establishment of a bar-room on the premises leased is perpetuated.
    No injury having resulted to the lessor and his right to dissolution under O. C. 2711 being not absolute, but subject to judicial discretion, the dissolution of the leaso is denied.
    A PPEAL from tlie Civil District Court for tlie Parish of Orleans. Tissot. J.

      John M. Bonner for Plaintiff and Appellant.

      Leonard, Maries & Bruenn for Defendant and Appellee.
   Tlia opinion of tlie Court was delivered by

Fenner, J.

This action invokes the remedy of injunction to prevent the improper use of property leased by plaintiff to defendant, and seeks to annul the lease on the ground of such improper use.

The use complained of is the establishment of a bar-room, or coffeehouse, and of a gaming-house.

The evidence clearly establishes that, some months after taking .possession of the leased premises, the defendant did fit up and open a public bar-room for the sale of spirituous drinks, with a room attached provided with card-tables, where visitors played cards for drinks.

Art. 2710, Civil Code, provides : u The lessee is bound :

1. To enjoy the thing leased as a good administrator, according to the use for which it was intended by the lease.

2. To pay the rent at the terms agreed on.”

It is not necessary that the use, according to which the thing is to be enjoyed, should be expressed in the lease; nor does it follow, if the lessee is silent as to the use, that the lessee may make of the thing leased any use which lie pleases.

On the contrary, this Court used the following language in a case of this sort: The lease is silent as to the destination or object to which the building was to be affected. The inference is that the parties intended that it should be used for one of the purposes to which it had previously been put, etc.; the question of destination is to be determined according to surrounding circumstances.” Murrell vs. Jackson, 33 Ann. 1342.

In an earlier case, the Court said: The evidence establishes that the plaintiff’s right of action was well founded; that the store rented to defendant was never intended by plaintiff to bo used as a kitchen; that no such use was in contemplation at the time the lease was contracted,” etc. Caffin vs. Scott, 7 Rob. 205.

We quote these decisions to show that, notwithstanding some difference between the language of our article and that of the corresponding Article 1723 of the French Code, they have been construed as substantially identical in meaning, and hence that the French authorities are fully applicable.

Those authorities are quite unanimous in support of the doctrine announced by Marcadé, in the following language: “ The destination of the' thing will be sometimes fixed by the agreement; but often the contract will be silent in this respect, and it is then, by the situation' of the place, by the use to which the thing had been previously put,- and by-the character under which the lessee presents himself, that the destination shall-bo-gathered. That destination, in whatever manner it shall appear, the lessee isbound to respect. Thus, not only shall the lessee, in default of an express stipulation, not be permitted to. establish, in a privaté dwelling, a house of prostitution, or a gambling house; but he cannot transform a private apartment into a restaurant, a coffee-house, a club, nor a private house into an inn or a hotel.” 6 Marcade, p. 459; 3 Delvincourt, p. 192; 17 Duranton, No. 98; Duvergier Louage, No. 396; Troplong Louage, No. 308; 25 Laurent, No. 257.

It is held that the establishment of a house of prostitution, or of a gaming-house, would, in no ease, be sustained, unless The lessor had positive knowledge that such was the use for which the lessee rented the premises. Duvergier, No. 402; Troplong, No. 302.

In a lease which authorized the lessee to sub-lease ua qui bon Ivi semblem ou, lui plaira,” it was still held that he could not sub-lease to one who would use the thing in a maimer contrary to its destination. Pothier (Louage), No. 281; Troplong (Louage), No. 1276; Duvergier (Louage), No. 391.

Now, in the instant case, the evidence shciws that the building leased was contiguous to the depot and stables of plaintiff at the corner of Napoleon and St. Charles aveuues, and was built to serve as a boarding-house and lodging-house for drivers and other employees; that it had been used to some extent for that purpose, and had never been otherwise used except, partially, as business offices; that plaintiff had received numerous offers to rent it as a bar-room or coffee-house at much higher rent than was paid by defendant, but- had always refused ; that no bar-room or other place for sale of spirituous liquors had ever been permitted; that defendant, prior to the lease, had kept a private market not far from this place, in which business he had been engaged for many years, and that he had never kept a bar-room or coffee-house; that, when he applied to rent the place, ho asked permission to open a private market there, which was at first refused and only granted after discussion and intervention of ñiends; that for the first three months of the lease he used the house simply for the purposes of a private market and for offices and lodgings, and that it was only after that time that he indicated his purpose of opening the bar-room; and finally, that as soon as plaintiff heard of such purpose, it promptly protested against and prohibited it.

- The foregoing surrounding circumstances would be amply sufficient to establish that the opening of a bar-room in the house was contrary to “ the use for which it was intended by the lease.”

But in- addition thereto, the plaintiff offered evidence to prove that during the negotiations for the lease, defendant was expressly notified that, under no circumstances, would the selling of spirituous liquors be permitted on. the premises.

This evidence was rejected on the ground that parol evidence was inadmissible to contradict or vary a written contract.

:We think the ruling was error, and that the evidence fell within, the familiar exception to the general rule which admits parol in order to ascertain the nature and qualities of the subject-matter of the contract, e. g., to identify, or define the extent of, the premises leased or sold, when not sufficiently described in the written contract and the like. 1 Greenleaf on Ev., §§ 286, 298a; Sergeant vs. Adams, 3 Gray, 72; Falcon vs. Boucherville, 1 Rob. 337; Moore vs. Hampton, 3 Ann. 193; D’Aquin vs. Barbour, 4 Ann. 441; Corbett vs. Costello, 8 Ann. 427; McLeroy vs. Duckworth, 13 Ann. 410.

In this case, the use of the premises is the cause or consideration of the contract; and we have shown that, in the silence of the contract as to the nature and kind of use contemplated between the parties, resort must be had to parol evidence of the surrounding circumstances to ascertain the intentions and define the rights of the parties. No circumstance could be of so much significance as the express notice given to the lessee that a certain use, foreign to the destination of the premises, would not be allowed.

The evidence is found in the record, and, although perhaps unnecessary to our decision, we may give it etfect and it confirms the conclusion arrived at.

I.

Plaintiff claims a dissolution of the lease under Art. 271.1 of the'Code, which provides: “If the lessee makes another use of the thing than that for which it was intended, and if any loss is thereby sustained by the lessor, the latter may obtain the dissolution of the lease.”

In this case, the improper use was stopped by the injunction almost as soon as it liad begun, and the lessor has suffered no loss.

Under the similar Art. 1729 of the French Code, it is held that the right to dissolution for this cause is not absolute, but is left to the discretion of the courts, according to the circumstances. Troplong (Louage), No. 316; Duvergier (Louage), No. 107.

We think, in this case, the right of plaintiff will be sufficiently vindicated by perpetuating the injunction, without dissolving the lease, which runs for five years.

It is, therefore, ordered, adjudged and decreed that the verdict and judgment appealed from be annulled and set aside; and that there be judgment in favor of plaintiff and against defendant perpetuating the injunction granted herein, and rejecting the reconventional demand of defendant — defendant to pay all costs in the lower court and of this appeal.


author: Todd, J.

text:
    No. 9693.
    Edward Conery, Jr., et al., vs. The New Orleans Waterworks Company et als.
    Taxpayers have a standing in court to contest, upon proper charges, the validity of a municipal ordinance and contract executed under it, whenever its enforcement may increase the burden of taxation. A district court, the lower limit of whose jurisdiction is fixed, has jurisdiction to pass on a controversy when the matter in dispute, which is the value of the contract assailed, exceeds that limit; and the Supremo Court lias jurisdiction wheu that value exceeds $2,000. Handy et al. vs. City of New Orleans re-affirmed.
    Where an exception is filed denying the capacity or right of the plaintiff to sue or s1 and in judgment, and together with this exception an answer to the merits or a peremptory exception determinative of the case, and the lower court sustained the first exception and dismisses the suit, this Court, on reversing that judgment, will remand the cause to he tried on the other issues raised hy the pleadings.
    APPEAL from the Civil District Court for tire Parish of Orleans. Lasarus, J.

      JS. II. Barrar, Ii. II. Browne, 13. I). White and O. 13. SehmicU for Plaintiffs and Appellants:
    1. The district courts of this Sítate are courts of superior aud general jurisdiction, with as full power to issue the writ of injunction in all proper cases as any Lord High Chancellor.
    2. One or more resident taxpayers lias the right to invoke that jurisdiction, without any allegation or proof of special injury or damage, to restrain municipal corporations and municipal officers from making unlawful disposition of corporate funds or corporate property, the creation of illegal debts and the making of void contracts increasing the burden of taxation.
    3. En such cases the thing- sought to be enjoined is the subject matter of the controversy, and Mío moasure of the jurisdiction of the court.
    4. En such cases, it is the settled doctrine of all the courts of this country, State and Federal (except How York, where it lias been settled hy statute), that the taxpayer stands in judgment for the whole community, irresi>ective of the distributive interest he may have in the matter at issue. .Pro hac vice, he is considered as the payer of all the taxes. Orunrptonvs. Zabriskie, 101 IT. S. 601; Gifford vs. B. B. Co., 10 "N. J.. Eq. 171; Tíaltimoro vs. Gill, 31 Md. 375; Wade vs. Richmond, 18 Graft (Va.) 583; Bago vs. Allen. 58 Pa. St. 338; New London vs. Brninard, 22 Conn. 552; Harvey vs. Indianapolis. 32 Ind. 244; Barr vs. Deniston, 19 H. H., 170; Stevens vs. B. B. Co., 29 Vt. 546 ; Webster vs. Harrington, 32 Conn. 131; Terrell vs. Sharon, 34 Conn. 105; Morrell vs. Plainfield, 45 H. H. 126; Hormand vs. Coe, 8 "Nob. 18; Oliver vs. Keightley, 24 Tnd. 514; Drake vs. Phillips, 40 111. 388; Grant vs. Davenport, 36 Iowa 396; Douglas vs. Placerville, 18 Cal. 643; Smith vs. Majaiviclc, 44 Ga. 163 ; Hewmeyer vs. M. & M. B. B. Co., 52 Mo. 81: Wright vs. Bishop, 88 111. 302: Bice vs. Smith, 9 Iowa, 570; Place vs. Providence, 12 B. I. 1; Allison vs. By. Co. 9 Bush (Ky.) 247; Bound vs. B. B. Co., 45 Wis. 543; Elyton Land Co. vs. Ayres, 62 Ala. 413; Bayle vs. City of New Orloans, 8 Am. and Eng. Corp. cases 329; White vs. Co. Com. 12 Id. 485: Whelen’s case, 11 Id. 174; City of Delphi vs. Sturzman et al., ll’Id. 37; City of Valparaiso et al. vs. Gardner, 7 Id. 626; Boper vs. McWhorter et al., 4 Id. 360 ; Sacket vs. New Albany, 3 Id. 85 ; Ayer vs. Lawrence, 59 H, Y. 192: Dillon Mxrn. Corp., § 731 to § 737.
    5. This doctrine has been repeatedly recognized in Louisiana. Flagg vs. St. Charles, 27 Ann. 319; Babington vs. same, lb. 321; Stevenson vs. Weber, 29 Ann. 105; Taxpayers’ Association vs. City of K. O. et als., 33 Ann. 567; Saloy et al. vs. City of Kew Orleans, lb, 79: Rivet et al. vs. City, 35 Ann. 134.

      J. JR. Beckwith for Defendants and Appellees:
    To authorize a taxpayer to stand as plaintiff in a suit having for its object the rescission of a contract made by a municipal corporation, the plaintiff must not only show that he is a taxpayer, but set forth and disclose in his petition a state of facts which, if true, render the contract assailed absolutely void, not simply voidable. People vs. Mayor, etc., of Brooklyn, 4 Comst. 419; Billón on M. C., § 55; Spaulding vs. Lowell, 23 Pick. 71; Hodge vs. Buffalo, 2 Denio 110; Smith vs. Madison, 7 Ind. 86; Kyle vs. Malin, 7 Ind. 34-37; Livingston vs. Peppin, 31 Ala. 515; Mayor vs. Cabot, 28 G-a. Rep. 50; Wells vs. Atlanta, 43 Ga. Rep. 76; City of Vincennes vs. Callender. 86 Ind. 484; Valparaiso vs. Gardner, 97 Ind. 2; ¿Tones vs. Richmond, 18 Grattan, Va. 517.- Smith vs. Richmond. 15 A Vail 429 ; Willard vs. Kewburyport, 12 Pick. 229.
    Every municipal corporation has all of the power of administration of locuL municipal affairs expressly granted in its charter, and all incidental powers necessary to carry such powers into execution and effect ancl operation. Cases above cited and Dillon on Mun. Corp. 55. and cases there cited in note.
    A municipal corporation with power to sue and be sued has authority to settle its contentions by compromise. This right also grows out of its authority to create debts and incur liabilities. Billon on Mun. Corp., § 396; Bean vs. Jay, 23 Maino 117. 131; Meeoli vs. Buffalo, 29 K. Y. 198; Baileyville vs. Lowell, 20 Maine 178; Kelson vs. Milford, 7 Pick.' 18; Augusta vs. Ledbeater, 16 Maine 45; People vs. Supervisors. 27 Cal. 655; People vs. Coon. 25 Cal. 648; Melville vs. Dixfield, 30 Maine 157; Petersburg vs. Maffin, 14 111. 193; Dillon on Mnn. Corp,, § 398.
    Any consideration which will make a valuable consideration for a contract between individuals will constitute a valid consideration in a cont ract by or with a municipal corporation, a moral obligation alone is sufficient to support a promise of a municipal corporation, if sufficient to support a promise if the same state of thiugs existed between individuals. Gilford vs. Supervisors, 13 N. Y. (3 Kern) 149; Same ease, 24 Wend, and 18 Barb. 615; Billon on Mun. Corp., § 44; Brewster vs. Syracuse, 19 K. Y. 116; People vs. Mayor, etc., of Brooklyn, 4 Comst. 419: Thomas vs. Lelaud, 24 AVond. 65 : Shelby County vs. Railroad Company, 5 Bush (Ky.) 225; Philadelphia vs. Mold, 58 Pa. St. 320; Cooley on Constitutional Limitations, 380, 491 ; Blanding vs. Burr, 13 Cal. 343; People vs. Onondaga, 16 Mich. 254; Lycoming vs. Union, 15 Pa. SI. 166; Kelson vs. Milford, 7 Pick. 18; Pike vs. Middleton, 12 K. H. 281: Briggs vs. Whipple, 6 Vt. 95.
    Under the general power and duty vested in municipal corporations to provide for the protection of public health and the extinguishment of fires, tlie corporate authorities have power to contract for a public water supply, and are* the sole judges of tlie best means of obtaining the same, and their discretion in this respect is not subject to review by the courts, unless tlie moans adopted arc expressly prohibited by law. Town of Livingston vs. Peppin, 31 Ala. Rep. 545; Mayor et al. vs. Cabot, 28 Ga. Rep. 50; AVolls vs. Atlanta, 73 Ga. Rep. 76; Vincennes vs. Callender, 86 Ind. 484; Valparaiso vs. Gardner, 97 Ind. 2; Dillon on Mun. Corp., §§ 58, 59; Railroad vs. Evansville, 15 Ind. 395 ; Page vs. St. Louis, 20 Mo. 136; Railroad Company vs. Kow York, 1 Hilton (K. Y.) 562; Hale vs. Houghton, 8 Mich. 458.

      Blanc & Butler and G. A. Breaux on the same side.
   Tlie opinion of tlie Court was delivered by

Todd, J.

This is an action on the part of the plaintiffs, residents of the- city of New Orleans, alleging themselves to be taxpayers to the city in a sum exceeding $10,000, against the city of New Orleans and the New Orleans Waterworks Company and others, seeking to restrain the execution of a contract entered into between the city and the said Waterworks Company on the 3d of October, 1884, and to prevent the council of the city from making any appropriations out of the public treasury in furtherance of the contract and the ordinance authorizing it; and further asking that said contract and ordinance be declared null and void.”

The petition charges as the ground of nullity that said contract and ordinance violate expressly the terms of the chai ter of the company, and are ultra vires, unconstitutional, null and void; and sets forth at great length the causes or reasons of the illegality and nullity propounded.

To this petition the city of New Orleans filed the following exceptions :

1. That plaintiffs have no capacity to stand in judgment.

2. That the petition disclosed no cause of action.

The Waterworks Company presented exceptions, which though differently formulated were in substance the same as the above.

The judge a quo, for reasons assigned in a lengthy and elaborate opinion, sustained the exception as to the right or capacity of the plaintiffs to maintain the action or stand in judgment, and dismissed the suit.

From this judgment the plaintiffs ajipealed.

This precise question was invoked in the case of Handy et al. vs. City of New Orleans, recently decided and not yet reported.

Like the instant one, that was a case where a number of taxpayers .and residents of the city joined in a suit for the annulment of a contract and ordinance, of the city touching the wharf lease, on grounds very similar in every respect to those urged in the case before us.

We. quote from the syllabus of that case to show the identity of the questions involved in the two cases, and how they were decided :

“ Taxpayers have a standing in court to contest upon proper charges the validity of a municipal ordinance and contract executed under it, whenever its enforcement may increase the burden of taxation.

“A district court, the lower limit of whose jurisdiction is fixed, has jurisdiction to pass on such controversy when the matter in dispute, which is the value of the contract, exceeds that limit; aud the Supreme Court has jurisdiction on appeal when the value exceeds $2000.”

It plainly appears, therefore, from this recent ruling of this Court, amply supported by the authorities cited in the opinion, that in the instant case the decision of the lower court upon the exception in question was erroneous.

Notwithstanding that this question of the rights or capacity of the parties to stand in judgment was the sole question decided by the court a qua, as abundantly shown by the reasons therein assigned for the judgment rendered; yet the counsel on both sides have indulged in a lengthy and very able discussion of the exception as to “no cause of action” filed, but not determined in the court below.

We have examined thoroughly the record of the case, and are satisfied that there exists little or no dispute as to the facts out of which this controversy has grown; and that therefore the determination of the exception of “no cause of action” will determine fully the merits of the cause. This vital issue has not been passed upon or even considered by the judge a quo, as we learn from his written opinion in the record.

It is the province of the appellate court to review the proceedings of the inferior court, and to determine whether its rulings and decrees therein embraced are right or wrong, and not to deal'with matters and issues distinctly presented by the pleadings but not considered or decided by that court. 19 L. 207; 9 R. 256; 7 Ann. 622; 10 Ann. 552; 11 Ann. 746; 15 Ann. 159.

We conclude, therefore, that it is proper to remand the cause, that the all-important issue raised by the exception referred to, not passed on by the court of the first instance, may be there tried and determined.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court sustaining the exception touching the right or capacity of the plaintiffs to maintain the suit and stand in judgment and questioning the jurisdiction of the court, be and the same is hereby reversed and the cause remanded to be proceeded with according to law; the costs ol' the lower court thus far incurred in the exception overruled and of this appeal to be'paid by appellees, and the further costs to abide the final issue of the case.


text:
    No. 10,002.
    The State ex rel. Canal and Claiborne Streets Railroad Company vs. Judge of Civil District Court, Division D.
    “When a suspensivo appeal bas been granted from an order dissolving an injunction on bond, and lias been perfected by filing of proper bond, the judge cannot afterwards rescind tbe order of appeal, on the ground that order appealed from inflici ed no irreparable injury, and was, therefore, unappealable. Affirming 36 Ann. 192.
    The terms of the order of appeal granted, when unambiguous, must spealc for themselves, and cannot be controlled by the statement of the judge that he did not intend to do what he has actually done.
    A IMPLICATION for prohibition and mandamus.

      H. D. Ogden and Braughn, Buck, Dinkelspiel é Hart for the Relators.
   The opinion of the Court was delivered by

Fenner, J.

The facts, stated in briefest form, are as follows: Relator brought an injunction suit against the city of New Orleans el at., and obtained issuance of the preliminary writ of injunction. Defendants filed an exception of no cause of action, and also a rule to dissolve the injunction on bond. The exception and the rule were tried on the same day, and the minutes of the court exhibit a judgment rendered on April 25, 1887, maintaining the exception and making absolute the rule to bond in a sum fixed therein. This judgment was duly signed by the judge on April 29th. On the same day relator applied for a suspensive appeal from said judgment, the motion therefor expressly describing the judgment appealed from as “rendered April 25 and signed April 29, 1887, dismissing its suit and making absolute the rule to bond filed by defendant,” and, on said motion, the judge granted the order, and fixed the amount of the suspensive appeal bond, which was duly executed and filed on the same day.

Subsequently, on the suggestion of counsel for defendant and on his inquiry -whether the suspensive appeal granted interfered with the city’s right to bond the injunction, the judge entered on the minutes his order declaring “ that the order for a suspensive appeal could not be held to apply to the ruling of the court on the motion to bond, which could not be appealed from suspensively, but went into effect at once.”

Relator applied for a suspensive appeal from this order, which was refused.

He now appeals to this Court for relief by prohibition and mandamus.

The case is on all fours with Irwin’s case, heretofore decided by us, where we held that, after granting an order for a suspensive appeal from a judgment dissolving an injunction on bond, and after such appeal has been perfected, the judge’s jurisdiction over the question was terminated, and he was powerless afterwards to set aside the appeal on the ground that the judgment was not appealable. State ex rel. Irwin vs. Judge, 36 Ann. 192.

In his return, however, the respondent judge sets up that he had rendered separate judgments oh the exception and on the rule to bond, and that Ms minute clerk had committed error in embodying the two in one judgment; that he signed the judgment in that form through error; that when the motion for suspensive appeal was presented, he supposed that it applied only to the judgment on the exception, and only discovered these errors when Ms attention was called to them by defendant’s counsel.

No one knows better than the esteemed respondent what implicit confidence we repose in any statement made by him ; but such errors, when opposed by the express terms of a judgment entered on the minutes of his own court and subsequently signed by himself, and also by his order of appeal, in which he expressly embraced the judgment on the motion to bond,” have passed beyond Ms power of correction, however much he may regret them.

The question is, not what the judge intended to do, but what he has done, and it must be determined according to the record of his court. Bourg vs. Gerding, 33 Ann. 1369; State ex rel. R. R. vs. Judge, 34 Ann. 1118; State vs. Lazarus, 39 Ann.

The minutes show that he did grant a suspensive appeal, in terms, from the judgment authorizing the defendant to bond, which appeal was perfected by the appellant. This brings it distinctly within the authority of Irwin’s case, heretofore quoted.

Of course the effect of the suspensive appeal from the judgment authorizing the bonding of the injunction, left the injunction in force and suspended the right to bond during the pendency of the appeal, and the relator is, therefore, entitled to the relief prayed for.

It is, therefore, ordered that the mandamus herein be made peremptory.


text:
    No. 9983.
    The State ex rel. T. Broussard vs. A. Koenig, Justice of the Peace, Fourth Ward of Lafayette Parish.

      Certiorari eon only bo resorted to when proceedings are absolutely null.
    n is only wlion, upon examination of the record, the proceedings appear to be null and void, . (hat they should he avoided and the respondent directed to try them nuow. in conformity with the provisions of the law.

      ^ P PLICATION for certiorari.

      O. Girard for the Eelator.
   The opinion of the Court was delivered by

Watkins, J.

Relator claims a certiorari upon the following grounds, viz;

J. That in the suit of T. Broussard vs. Gastine Herpin, in the respondent’s court, he obtained judgment against the defendant for $2 50, and against his (relator’s) protest, and, ostensibly, upon defendant’s affidavit, the respondent granted a new trial, when, in point of fact, no such affidavit liad been made, and respondent’s act was arbitrary and in gross violation of his (relator’s) rights.

2. That, on the second trial, respondent associated with him Sidney Greig, a justice of the peace of an adjoining ward, and that the two jointly heard and determined said cause and rendered judgment therein, and that, as thus constituted, it was a court unknown to the laws of Louisiana.

3. That he presented and filed a suit in respondent’s court to annul said judgment, and he declined and persistently refused to issue citation to defendant, or to permit any further steps being taken therein.

4. That the respondent and the constable of his court are demanding of him the payment of $225, as one-half of the amount of cost due under said judgment, notwithstanding they have never exhibited any detailed bill of tbeir costs, but, on the contrary, have refused so to do; and without the request of any party in interest, have issued execution and seized thereunder relator’s property and offered it for sale.

5. -Respondent, knowing that there was no appeal from the judgment rendered, acted in the premises wilfully, arbitrarily and for the purpose of oppression, extortion and of enriching himself at his (relator’s) expense; and unless these proceedings are arrested, he will perpetrate upon him a gross and irreparable injury.

He specifically denies that lie ever asked or prayed for an injunction against said judgment, and avers that he never, knowingly, signed either an injunction, appearance or forthcoming bond for the surrender of the property seized on the day of sale.

He prays that a certified copy of all proceedings in that suit be brought up, examined and declared null, and the respondent be enjoined to proqeed no further until this is done.

Prom the respondent’s return and the record annexed, we gather the following facts, viz :

1. That relator instituted suit and recovered judgment as stated, and upon the written affidavit of the defendant, a new trial was granted, and the plaintiff therein (relator here) was duly notified of the time and place the second trial would occur, and that both parties were present thereat with their witnesses.

2. That on the second trial respondent requested S. Greig, a justice of the peace of the adjoining ward of the same parish, to sit with ' him during his deliberations in that case, “because he knew that bitter differences existed between the two neighbors who were litigating in that case,” and because he desired “ to do exact justice in the case,” etc.

On the trial, judgment was rendered dismissing plaintiff’s (relator’s) suit, and against each one-half of the cost was taxed! The reasons assigned was that both parties had been found “ guilty of malice and negligence.”

This judgment appears to have been signed by each of the justices ; but the respondent returns that the latter took no part in the decision of the case, and that he alone heard and determined it and rendered judgment therein, and that Justice of the Peace Greig only advised with him in the premises, and signed the decree as evidencing his approval of it only.

In this respect we fail to discover any badge of nullity.

Conceding there is no express law sanctioning such a proceeding, yet it is not an unfrequent occurrence that a judge of the vicinage, exercising like jurisdiction, sits en bane with the judge who is engaged in the trial of the case in hand.

Though it is not usual, in such cases, that another than the trial judge should sign the decree, yet that fact, in our opinion, would not vitiate it. It might well be treated as surplusage.

3. On execution under the judgment for cost, property of relator wras seized and advertised for sale, and notice of seizure was served, but the relator demanded the right to give a forthcoming bond and retain possession until the day of sale.

The l-espondent returns that he executed bond and therefore failed to surrender the property, and his bond was duly forfeited. There is, in the record annexed to his return, a judgment to that effect.

He further returns that the relator, in person, prayed for an injunction against this writ and furnished the necessary bond and security. This case was fixed for trial by consent of parties, but upon their failing to put in appearance, on the day fixed for trial, same was dissolved.

Subsequently the relator sued out an injunction in, the district court against the respondent and the constable of his court holding the ii. fa., seeking to restrain further proceedings thereunder, and that same was dissolved at the March term of that court in 1887."

Respondent returns that during the pendency of that injunction a document was handed to him for filing, seeking to annul said judgment, but that he was advised and believed it to be the same in effect and purport of said pending injunction which had then only recently been served on him, and he was advised and believed that he could not do anything while same was pending.

He further returns that he was advised and believed that said action in nullity should not be placed on file in his court, because u said petition was couched in impertinent and disrespectful language,” etc.

For all of said reasons he deemed it his duty to take no further action in the premises until said suit was decided.

He further represents that since that date (April, 1886), no other application has been made; and he avers his entire willingness to receive any petition from the relator, if couched in proper and decorous language, and to act thereupon officially and to the best of his knowledge and ability. '

4. The respondent avers that the j®. fa. only issued against the relator for the sum of $26 45, and the writ discloses that to be a fact, same being the cost incurred by him in said suit; “ and that it is absobutety untrue that he demanded any cost whatever other than such as contemplated by that suit; and he'denies that any demand for detailed bill of costs has ever been made^ by relator ” and by him refused. On the other hand, he affirms that he has promptly furnished him with itemized bills of cost, and that he believes he has them in Ms possession at this time.

The record annexed does not, in any degree, support tiie relators averment that the respondent and the constable of his court were demanding a large and extortionate sum as costs, without authority of,though under the color of law.

5. There is no support for the assertion that respondent have acted wilfully, arbitrarily, or with the purpose of extortion, and oppression, as alleged in relator’s petition. Tt maybe that the judgment rendered operates a great hardship on the relator; that he was entitled to judgment against the defendant, Gastine Her pin, for the amount claimed and cost; and that even the amount of costs claimed are excessive.

All of those matters are placed within the exclusive jurisdiction of the respondent in such a case as the instant one, and his decree is not revocable on- appeal, and it can be examined by this court only in the exercise of its supervisory power. Const, art. 90.

The certiorari can be resorted to only when proceedings are absolutely void, and should be set aside. C. P. 857, 864, 866.

It is only when, upon examination of the record, the proceedings appear to be null and void that they should be avoided and set aside, and the respondent directed to try the case anew in conformity with the provisions of the law. C. P. 864.

The record furnishes no warrant for our interference, in this case, with the proceedings in the respondent’s court. 38 Ann. 968, State ex rel. Gorch vs. Robinson, Justice of the Peace.

It is therefore ordered, adjudged and decreed that the restraining order granted be set aside, and the relator’s demand be rejected at his cost.


author: Roché, J.

text:
    No. 1169.
    R. N. Lewis vs. G. A. Peterkin et al.
    The appellant who suggests a diminution of the record before the expiration of the three judicial days within which he may file the transcript of appeal, is entitled to a certiorari for the correction and completing of the transcript, even after the cause has been argued and submitted for judgment, in caso his application he made before the expiration oí the three days aforesaid.
    A judgment of separation of property duly rendered in favor of the wife against her husband, cannot he inquired into or attacked collaterally by a creditor of the husband, whose claim had not yet arisen when the judgment was rendered.
    A married woman separated in property from her husband has the legal right to purchase property in her own name and for her separate account, and the burden of proof is on the party assailing the validity of such sales.

      A PPEAL from the Sixth District Court, Parish of Morehouse. _OL Jevy, Judge ad hoc.

      R. B. Todd, Jr., for Plaintiff and Appellant.
    A judgment of separation of property, in order to be valid, must be executed; dation en paiement one year after its rendition, does not revive or give it effect. 28 Ann. 345; 34 Ann. 690.
    A judgment of separatiou to effect third persons must bo advertised or recorded.
    Parol evidence is inadmissible to show authority to purchase real estate. O. C. 2997,2440; ■ 23 Ann. 196 ; 28 Ann. 678.
    A simulated sale conveys no rights to tbe pretended vendee. 15 Ann. 177; 23 Ann. 46, Where a sale is attached on account of simulation the widest latitude is allowed. 30 Ann. 1203; 36 Ann. 681.
    When the wife, who is separate in property, has left the enjoyment of her property to her husband without any procuration he is not answerable for the fruits until a demand be made by Ms wife, or if it is not made, until tbe dissolution of the marriage. He is not-accountable for tbe fruits that have been previously consumed. C. O. 2396.
    If after a separation of property and a dissolution of the community the husband operates with the wife’s funds, this should be clearly made to appear. 15 Ann. 33 $ 16 Ann. 214 ; 18 Ann. 126; 2D Ann. 532.
    If the husband buys and pays for property the purchase will be presumed to be bis ; if he uses his wife’s funds this must be shown by her, 10 Aim. 784; 15 Ann. 33,119; 21 Ann. 343; 22 Ann. 148.

      Newton & Oason, for Defendant and Appellee :
   ON MOTION TO DISMISS AND ON APPLICATION FOR CERTIORARI.

The opinion of the Court was delivered by

Roché, J.

On the first day of the present term appellees moved for tbe dismissal of this appeal on the ground that tbe clerk, in bis certificate, did not state that tbe transcript contained all the evidence adduced on tbe trial below.

Two days later, appellant filed bis application for an order to direct tbe clerk of the district court to correct bis certificate, and tbe application is resisted by appellees on the ground that it was not made before, or at the time of the argument as required by art. 898 of the Code of Practice.

It is true that the motion for a certiorari was made after tlie case had been submitted, and not, as erroneously contended for by appel lant’s counsel, after it bad been partially submitted. But it is clearly apparent that the fault is not imputable to appellant, if the clerk omitted to state the whole truth in his certificate. The transcript is voluminous, and it.contains a mass of documentary evidence and of parol testimony taken down in writing.

Hence, it is more than probable that tbe error is in the certificate.; and for that reason the appeal cannot be dismissed. Revised Statutes, section 36, Flint vs. Peck, 22 Ann. 246; Baltimore vs. Parlange, 25 Ann. 335; Burton vs. Hicks, 27 Ann. 507; Stafford vs. Harper, 32 Ann. 1076.

Now, as the appeal cannot be dismissed at the present stage, because the apparent deficiency of the transcript is not imputable to appellant, and as the case cannot be tried because it is not shown that the transcript does contain all the evidence offered, admitted and considered below, what will become of the case 7 Reason and law alike point out the course to be pursued, and require that appellant be allowed an opportunity to complete his transcript; as the three judicial days within which he could file his transcript had not yet expired when the case was argued and submitted, his right, under the law, to have his transcript corrected and completed is not affected by the provisions of article 898 of the Code of Practice. Such a course was pursued in the case of Trudeau vs. Railroad, 15 Ann. 717, in which the following rule was formulated. “ When a diminution of the record is suggested, the Supreme Court will order a certiorari to perfect it, although the case has been submitted for judgment.”

But as it may happen that the silence of the clerk in his certificate is proof of a negative fact, aud that the transcript does not contain all the evidence adduced at the trial, we shall not now dispose of appellee’s motion to dismiss the appeal, and shall postpone consideration' thereof until the clerk makes his return on the certiorari.

It is therefore ordered that a writ of certiorari issue to the clerk of the district court of the parish of Morehouse ordering him to complete his certificate to the transcript of appeal in this case, by stating positively whether said transcript does or not contain aLl the evidence adduced on the trial of said cause, and that said writ be made returnable on the 18th day of June, 1887.

On the Merits.

This is an action in declaration of simulation, in which plaintiff, a judgment creditor of the defendant husband, seeks to subject to the execution of his judgment two pieces of immovable property purchased in the name of the wife, but alleged to be the property of the judgment debtor.

The wife resists the demand, and urges that at the time that she purchased the property she was duly separated in.; property from her husband by judgment, and that the purchases were made .with her sep-arate funds, of which she had the administration.: ..

Plaintiff appeals from a judgment which rejected his demand.

It appeai-s from an admission of the parties in the record that in the year 1870 the court-house of the parish of Morehouse was entirely destroyed by lire, together with all the records and papers therein contained and belonging to the district court of that parish. Hence, secondary evidence, consisting of parol testimony, was properly admitted to show the alleged judgment, of separation of property between Peter-kin and his wife, rendered by that court in the year 1869. That testimony is corroboiated by an authentic act executed by Peterkin and his wife on June 25,1870, by which he transferred to her some movable property in part payment of the moneyed judgment which she had obtained against him.

Having proven that much, touching her condition as separate in property from her husband, the defendant wife is entitled to protection under her judgment against any collateral attack on the validity of the same on the part of plaintiff, whose claim against Peterkin did not originate before the .year 1876, and whose judgment which he is now seeking to enforce against the property in dispute, was rendered only on the 25th of April, 1880.

As he was not a creditor of the husband at the date of the judgment of separation of property, he had no legal concern with its existence or validity, as he had no rights which could be jeopardized or affected thereby in the least.

This ruling finds ample support in reason and as well as in authority; and we find that in our jurisprudence it has been formulated thus:

“A judgment that has been regularly obtained by the wife against her husband cannot be contested or inquired into collaterally by a creditor of the husband whose claim only arose after it was rendered.” Farwell vs. O’Neil, 22 Ann. 619; Dinkgrave vs. Norwood, 10 Ann. 564.

The judgment having been regularly rendered, and having been partly satisfied through a giving in payment executed in an authentic act within a reasonable time (C. C. 2428), it follows that the wife was thus fully able and authorized to purchase property in her own name, and the burden of proving the invalidity of such purchases is on the party attacking the same. Chaffe & Sons vs. De Moss, 37 Ann. 186; Farrell vs. O’Neil, 22 Ann. 619; Todd, curator, vs. Larkin, 38 Ann. 672.

Plaintiff has undertaken the task, and he has introduced evidence in support of his contention that both purchases, though made in the name of the wife, were in truth and in fact made for the husband. His evidence amounts at most to negative conjectures, showing some suspicious circumstances. But its weight is entirely destroyed by the positive testimony of the defendant wife, who swears that both purchases were made for her own account; and it appears that both pieces of property have been since and continuously eDjoyed by her, and treated and considered by the whole community as her separate estate.

The record shows that she received a considerable inheritance from her father and mother, and that for many years sin: has owned a large and valuable plantation which she at times leased, and at other times cultivated, and from which she could derive revenue sufficient to make subsequent and additional purchases. But being separate in property, she had the right in law to purchase property on terms of credit at her discretion, and the creditors of her husband have no authority to inquire into the source of the means or funds which she used in making payments thereon. It is sufficient for her to show that her true and real intention was to purchase for her own account, and it is incumbent on complaining creditors to make proof of the alleged simulation of the purchases made.

It may be conceded, as plaintiff contends, that the credit instalments on the purchase price of the town lot and residence in Bastrop were paid with parish warrants held by her husband for debts due him by the parish. She testifies that she acquired that paper from her husband in satisfaction of a debt which he owed her, and the record contains no evidence to the contrary. At the date of that purchase in 1877, plaintiff was not yet a judgment creditor of the husband. Hence, his rights or those of other creditors could not be affected, and they could not resist the legal effect of the purchase even if it were proved that Peterkin had made a donation to his wife of the parisli paper without consideration.

Dealing with a similar attack, this Court has recently said: “What motive, then, for disguise or simulation? How natural, then, that all parties should have intended that the title should pas’s to the wife as a real title and as the true owner! If such was the intention, and we are convinced that it was, the wife’s title could not be attacked as a simulation even if the husband had given the notes (with which the price was paid) to her without consideration.” Todd vs. Larkin, 38 Ann. 672.

The true intention of the parties in the case at bar is made still more manifest by the fact that from 1877 to 1882 the husband was engaged in a mercantile business of considerable magnitude, and that he thus owned in his own name some immovable property in that parish, which he continued to own as late as the year 1885.

It also appears from the record that the validity of Mrs. Peterkin’s purchases of the property now under discussion has already been subjected to judicial test at the instance of her husband’s creditors, whose attack was defeated.

Our conclusion is that her titles have successfully withstood the assault made by the plaintiff in this case, and that she is entitled to enjoy the benefits of the investment of her separate funds.

Judgment affirmed.

Mr. Justice Todd takes no part in this case.


text:
    No. 1157.
    Heirs of Ory Murphy vs. Jurey & Gillis—J. P. Murphy, Warrantor.
    Property acquired during a marriage in the name of the husband is presumed to belong to the community. Hor will such presumption be rebutted by proof that lie acquired the property with the money of his children by a former marriage; nor will such fact affect the title of the community to the property, though it may create a debt against it.
    The heirs of the wife become vested with a title to her share of the community property at the moment of her death: and though they receive it subject to the payment of the community debts, they are not hound to aw'ait a liquidation of the community before resorting to an action to recover it. Tugwoll vs. Tugwell, 32 Ann. 848, and Glasscock vs. Clark, 33 Ann. 584, reaffirmed. Hor in such action, petitory in its, character, is the indebtedness of the community or its financial condition dissolved, when a legitimate subject of enquiry.
    APPEAL from the Third District Court, Parish of Lincoln. JPeaael, Special J.

      JBarlcsclale <& VanJJooTc for Plaintiffs and Appellees.

      G. Ij. GasTcins for Defendants and Appellants.
   The opinion of the Court was delivered by

Todd, J.

The plaintiffs, as the collateral heirs of Ory Murphy, deceased, sue to recover nine-tenths of the undivided half of the lands described in the petition, the said undivided half being the community interest of the deceased therein and inherited at her death by petitioners.

The defendants answered by a general denial and a call in warranty on their vendor, J. P. Murphy. Murphy, besides the general issue in his answer, denied that Ory Murphy, from whom the plaintiffs claim, bad at her death, a community interest in said lauds, and averred that though the lauds were acquired during the marriage of the deceased witli J. J. Murpliy, they were acquired by the husband with his separate money, and money belonging to the children of his first wife, and never fell into the community existing between him and Ory Murphy, and further that the estate of J. J. Murphy was, at his death, insufficient to repay the children of his first marriage the funds of theirs used by him in the acquisition of these lands.'

The prescription of ten and thirty years is also pleaded by the warrantor and a demand in case of recovery by the plaintiffs for reimbursement for taxes paid and improvements made on the lands.

There was judgment in favor of the plaintiffs decreeing them the owners of the interest in the lands claimed by them, save as to certain designated portions thereof, with a reservation to the parties of the right to adjust their claims for taxes, improvements, etc., iu the partition of the lands.

There was judgment also in favor of the defendants and against the warrantor. From this judgment the present appeal was taken by the defendants and warrantor.

The facts of the case established are briefly these :

John J. Murphy was twice married iu the State of Georgia. First, o Elizabeth Havell, who died in 1843, leaving several children, of whom the warrantor is one. Second, to Ory Glaze in 1844, and who died in 1860 without issue.

In 1848 Murphy and his wife moved to this State, accompanied by the children of his first marriage, and after his arrival in this State, he acquired by purchase the lands in controversy.

After the death of his wife, Ory Glaze or Murphy, J. J. Murphy, the surviving husband, remained in possession of the lands until his death in 1866. There' was no administration on the succession of the wife, and no settlement of the community.

After the death of Murphy there was a partition of his estate, in which partition J. P. Murphy, the warrantor iu this case, received the lands in controversy.

It is shown that these lauds were all acquired during the existence of the community between J. J. Murphy and his wife, Ory Murphy, and are therefore presumed to bo community property. C. C. 2405.

Upon the dissolution of the community by the death of the wife, the title to her share of the community property, the one undivided half of the same rested in her heirs. C. C. 2406; Tugwell vs. Tugwell, 32 Ann. 848.

And though the heirs of the wife received the property subject to the community debts, it is now settled that their action for it may be maintainecl without allegation or proof of the liquidation or solvency of the community. Ib. and Glasscock vs. Clark, 33 Ann. 584. And it is enough to say in this case, as in the cases above cited, that the creditors of the community, if there are any, are not before us seeking to enforce their claims against the community. Nor would any such inquiry be permissible in an action of this kind, which is petitory in its character, and the right of the plaintiffs acquired at the instant of the death of the person from whom they inherited. The community creditors, if there, were any, might have subjected this property by proper proceedings to the payment of their debts and thus divested the plaintiffs of their title to the property, but it lias not been done and cannot be done in this form of action, nor by the parties to the present controversy. All evidence respecting claims against the community and its condition at the moment of its dissolution should therefore have been rejected.

There is a plea of prescription of ion and thirty years urged agaiust the plaintiffs’ right of action, which Was overruled by the lower court and properly so.

Ten years had not expired between tlie date of the conveyance of tlie property from J. P. Murphy to the defendants. J. P. Murphy claimed the property by inheritance from his father, J. J. Murphy, and as tlie father liad not a vestige of title to tlie property, he transmitted none to his heirs. They took it cum vitiis. There was no basis for the prescription urged in favor of J. P. Murphy.

There is an amendment of the judgment of the lower court prayed for as to that part of it which rejects plaintiffs’ claims to certain designated portions of the land.

The amendment must be allowed.

The defendants in their answer admit the possession of all the land claimed and described in the petition.

J. J. Murpliy was in possession of it at tlie dissolution of the community. It was a matter of no moment whether a part of this land was acquired by a milit ary warrant or by money, so that- it was acquired duiing the marriage. This and other portions excepted or declared free from plaintiffs’ claims, purports to have been acquired by J. P. Murpliy by inheritance from J. J. Murpliy and partition. They, defendants, claim solely through their purchase ñom J. P. Murpliy. J. J. Murphy was the author of both warrantors and defendants’ title, and nothing is better settled than that parties cannot disxiute their author’s title.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended by decreeing the plaintiffs owners of the nine-tenths of the undivided half of the east half of the northeast quarter, section 34, and the east half of the northwest quarter of section 25, T. 18, N. R. 4 west; and by declaring open to adjustment in the partition of the lands all claims between the parties mentioned and referred to in the pleadings, subject to all defenses of the respective parties, and as thus amended the judgment is affirmed. Defendants to pay costs of both courts.

Mr. Justice Fenner dissents.