author: Marr, J. Spencer, J.

text:
    No. 7505.
    Bernard Lemann vs. Widow F. A. Truxillo.
    "Wher© a court acquires jurisdiction only in ■virtue of a sequestration, it íb 'without authority touching any personal demand against the defendant, whoae domicile is within the jurisdiction of another couTt.
    Where supplemental petitions are filed in a purely sequestration suit, claiming additional sums, each of such petitions must be separately sworn to, and a new order must he granted, and a new seizure made, under each of them, otherwise the court acquires no jurisdiction of the demands in those petitions.
    A judgment against a succession not legally before the court is an absolute nullity.
    A sequestration suit is not a proceeding purely in rem, and hence, if the defendant in the suit is without oapaoity to stand in judgment, no valid decree can he rendered disposing of the property sequestered.
    The surviving wife, who has ceased to administer the deceased husband’s succession as
    , natural tutrix, who is not its administratrix, and who has renounced the community between her and her deceased husband cannot stand in judgment as defendant in a suit against the succession.
    The release of sequestered property on bond, in a case in which the defendant is without capacity to stand in judgment, will not prevent the intervention of the legal representative of the owner of the property, the only person with whom the plaintiff could litigate his demand.
    A suit against the plaintiff in a sequestration suit who has obtained possession on a release-bond, on the ground that the property was improperly bonded, must he brought in the court in which the sequestration suit is pending.
    A writ of sequestration under which property is seized, which is invalid because of the omission of the judge to fix the amount of the bond in his order granting the writ, oannot be validated by a subsequent order fixing the amount. A new writ must issue, under the supplemental order fixing the amount of the bond. Such supplemental order can he made by none but-the judge.
    Every court has jurisdiction to determine the right to the possession of property held under its orders.
    ^PPEAL from the Sixth District Court, parish of Orleans. Bightor,

      Henry Denis for plaintiff and appellee.

      E. Howard Farrar for defendant and intervenor appellant.
    Henry Denis, for plaintiff and appellee, contended :
    First — That the judge did determine the amount of the bond as required by law, when he signed the order with the bond under his eyes, and his attention being called specially to the amount.
    And plaintiff contends that the judge had, at all events, the power to issue the order nunc pro tunc, the test of which is, whether the error to be rectified is that of the parties or of the court. 7 A. 283 ; 1 Rob. 165 ; 3 A. 260 ; 6 A. 701, 707 ; 10 A. 730; 12 A. 349, 596 ; 25 A. 115 : 3 Otto, 412; 13 La. 434.
    Second — Plaintiff, with leave of court, filed two supplemental petitions, which did not aver new facts, asked for as additional seizure, but only alleged a larger indebtedness by defendant. Plaintiff contends the supplemental petitions need not be sworn to, inasmuch as, in cases of sequestration, the amount of the alleged debt is not sworn to at all. 5 La. 299.
    Third — Defendant, after excepting to the jurisdiction of the court a qua, says, in so many words, in her answer, that she has no interest in the suit, either individually or as tutrix. Plaintiff contends that by so pleading she has put' herself out of court and cannot contest with plaintiff; and that her appeal ought to be dismissed, inasmuch as she cannot possibly be aggrieved by a judgment rendered in rem upon property, and in a suit in which she has no interest. 27 A. 542 ; 15 A. 547.
    Fourth — After the property sequestered had been bonded by plaintiff, Ruiz, the administrator of the succession of Truxillo, appointed after this suit was brought, intervened, and at the same time declining the jurisdiction of the court a qua, asked that the property sequestered be delivered to him. v
    Plaintiff contends that, under the jurisprudence of the State, no intervention is allowed after bonding of the property sequestered. 28 A. 863 ; 28 A. 792 ; 27 A. 239 ; 23 A, 751, and cases therein cited. The three cases first cited are cases of sequestration, and not of attachment.
    Plaintiff contends also, that the intervenor cannot decline the jurisdiction of the court into which he comes voluntarily; that ho must take the suit as he finds it, and litigate with the parties to the suit, or resort to the direct action. 19 La. 154; 8 Rob. 128 ; 20 A. 174; 21 A. 118 ; 21 A. 643 ; 27 A. 239.
    E. H. Farrar, for defendant and intervenor appellant, contended:
    First — That the order for a sequestration, as written and signed, is not a compliance with the law, and would not make the self-fixed bond iurnished by the plaintiff valid, is too plain for discussion. The judge must fix the bond, and the plaintiff must comply with the order as rendered by the judge. C. P. Art. 276.
    Second — That conservatory remedies are harsh, and must be strictly construed. 4 A. 456 ; 3 L. 18 ; 11 R. 158 ; 1 A. 308 ; -2 A. 415, 920.
    Third — That the order fixing the amount of the bond nunc pro tunc, made on February 5th, more than a month after the sequestration issued and the bond was signed, could not infuse life into a stillborn sequestration. Nunc pro tunc orders have never before in the history of our jurisprudence been used to manufacture conditions precedent.

    In the nature of things, there can be no such thing as a nunc pro tuna
      citation to validate a judgment rendered without citation, or a nunc pro tunc affidavit, order, and bond to validate an attachment or sequestration that issued without those essential prerequisites.
    Eourth — That the exceptions to the supplemental petitions should have been maintained, is manifest. They were for other and additional demands besides that set forth in the original petition. They were not sworn to. No additional bond was given when they were filed. The jurisdiction of the court over the defendant necessarily depended on the possession and control by the court of the defendant’s property by virtue of a conservatory writ. The court, therefore, had no jurisdiction of any demand which was not accompanied with an attachment, sequestration, or provisional seizure of property.
    Fifth — That since Dorr vs. Kershaw, 18 L. p. 57, it has been the settled jurisprudence of this State, that after property under attachment has been released on bond it is too late to intervene and claim either ownership or a privilege upon it. 1 R. 277; 7 R. 349 ; 9 A. 360 ; 14 A. 583 ; 16 A. 25 ; 17 A. 314.
    All of the above-cited cases step in the track of Dorr vs. Kershaw. The reasoning of the court in that case shows that the decision was based on the provisions of the Code of Practice fixing the obligation of the surety on the release-bond. From these provisions they deduce the conclusion that the release-bond is not a substitute for the property — the obligation of the surety being to pay the debt of the plaintiff, and not to preserve the property, or to substitute the property for the liability incurred by signing the bond.
    Now, this rule was never laid down with reference to sequestration, until the case of Burbank vs. Taylor, 23 A. p. 751. An examination of that case shows that the court based its decision without reasoning upon the above authorities with reference to attachment. Those authorities destroy instead of supporting the decision.
    Sixth — That either the defendant had a right to stand in judgment to represent the sequestered property, or she did not. The maintenance of the first alternative was essential to the success of the plaintiff’s suit, and it was on this theory that the defendant’s exceptions were overruled. The establishment of the second alternative necessitated the dismissal of the plaintiff’s demand.
   The opinion of the court on the original hearing was delivered by Marr, J., and on the rehearing by Spencer, J.

Marr, J.

Elorentin A. Truxillo died, at his domicile, in the parish of Assumption, on the 15th October, 1877, leaving a widow and one child, a minor. The widow caused an inventory to be taken, the property consisting entirely of movables, such as household furniture, stock, implements and utensils, and the crop of cane then growing on the plantation which the deceased had occupied and cultivated as lessee.. She also qualified as natural tutrix of the minor; and she caused the crop to be gathered and manufactured into sugar and molasses, part of which was shipped to New Orleans for sale.

The creditors of the succession were not willing that she should continue to administer without giving security; and they required an administrator to be appointed. By public notarial act of 4th January, she formally renounced the community which had existed between her and the deceased; and this act was recorded on the 7th January, 1878.

On the 5th of January she prayed the parish court to appoint her administratrix, on her giving the requisite bond. Her application was opposed by Joachim Ruiz, on the ground that she was incapable of administering, in the existing condition of her mind, caused by the harassment to which she had lately been subjected by the creditors, and he claimed the right to administer as a creditor. She waived her right of preference as natural tutrix, and withdrew her application in favor of Ruiz. He was appointed, gave bond, qualified, and obtained letters on the 16th January ; and he entered immediately on his duties, and provoked the sale of the property of the succession to pay the debts, which Widow Truxillo had not attempted to do.

On the 29th December, 1877, Bernard Lemann, of the parish of Ascension, brought this suit in the Sixth District Court for the parish of Orleans, against Widow Truxillo as survivor in community, and as natural tutrix of the minor, to recover $600, balance alleged to be due for advances and supplies furnished to the deceased, and after his death to his widow, to enable them to make and gather the crop, for which he claimed a privilege. On proper affidavit he obtained an order of sequestration, and under the writ the sheriff seized in the hands of Lanaux & Sons and Lehman, Abraham & Co. $1281 39, proceeds of sugar and molasses.

On the 5th of January, a week after this seizure, plaintiff filed a supplemental petition, alleging that the balance due him was $890 78, for which he prayed for judgment with privilege, instead of the $600 claimed in the original petition; and on the 14th January he filed another supplemental petition, claiming the additional sum of $121 39, with like privilege. Neither of these petitions was sworn to; and there was no new order on them, no new writ, no new seizure.

Citations were issued on these three petitions, and they were served on Widow Truxillo, in person, at her domicile in Assumption, by the sheriff of that parish, on the 18th January, 1878, two weeks after she had renounced the community, two days after her administration as natural tutrix had terminated by the appointment of Ruiz.

When this suit was brought plaintiff’s attorney handed the affidavit, and a bond filled up for $1500, to a deputy clerk of the court, and requested him when he presented the papers to the judge for the •order of sequestration to inform him that the property to be seized was worth about $1000, and that the bond was for a sufficient amount. The order was written by this deputy, and it was afterward signed by the judge,as follows : "Let a writ of sequestration issue herein as prayed for, upon petitioner furnishing bond and security conditioned according to law.” A few days after the seizure was made plaintiff’s attorney discovered that the amount of the bond was not stated in the order ; and at his suggestion, he and the deputy considering this a mere clerical error, the deputy inserted the words [in the sum of fifteen hundred dollars] between the words “security” and “conditioned” in the order.

On the 17th January, the attorney for defendant took a rule on plaintiff, in which the facts just stated are set forth, to show cause why the sequestration should not be dissolved and the suit dismissed, on the grounds that there had been no such bond given, and no such order for sequestration, as the law requires ; and that, as defendant resided in the parish of Assumption, the jurisdiction of the court depended upon the existence and maintenance of the sequestration.

On the 17th January defendant filed exceptions to the jurisdiction of the court. She gave the history of her connection with the succession, except that she stated that her application to be appointed administra-trix was pending. It had been decided the day before ; but, probably, there had not been time for her to communicate that fact to her attorney in New Orleans. She plead that the property of a succession, in course of administration, cannot be sequestered by a creditor; that the supplemental petitions had not been sworn to; that the additional amounts claimed on them were not covered by the sequestration ; and that the debt sued for was not privileged.

The rule to dissolve was tried and submitted ; and on the 5th February it was discharged. “ And, further, it is ordered by the court that all words in the mandate of sequestration after the words ‘ issue herein as prayed for’ be stricken out, excepting the date and signature.”

On the same day, on motion of plaintiff’s attorney, “ It was ordered that nunc pro tunc, the amount of said bond be stated to be for fifteen hundred dollars.”

Shortly after the exceptions were fixed ; and after having been under •advisement for more than two months, they were overruled on the 14th May.

In the meantime, on the 9th April, the plaintiff obtained an order of court permitting him to bond the property sequestered; and the money, $1281 39, was delivered to him by the sheriff, on his giving-bond for $1500.

On the 15th May, the day after her exceptions had been overruled, Widow Truxillo, reserving the benefit of her pleas of domicile and want of jurisdiction, answered by general denial. She also plead that she was without interest in the property sequestered; that she had renounced the community; and that her administration as natural tutrix had terminated by the judgment of the parish court of Assumption, appointing an administrator.

On the 25th May, Joachim Ruiz, the administrator, filed his petition-of intervention, in which, after stating his appointment, and the facts material to his right, he alleged that he intervened, not for the purpose of giving the court jurisdiction over him, but solely for the purpose of obtaining possession of the funds in the hands of the court, in order that he might administer the same under the orders of the only court having jurisdiction, the probate court of Assumption.

He also alleged that he “ declines any controversy with plaintiff in this forum as to his pretended privileged claim upon the proceeds of the sugar and molasses; ” and he prayed that the sequestration be 'dissolved, and that he, in his capacity as administrator, be declared the-owner of these proceeds, and be put in possession of the same.

Widow Truxillo answered this intervention by admitting the right oi Ruiz; and she joined in his prayer. Plaintiff excepted that inter-venor could not contest his right to sue in the manner and in the court he resorted to; that the funds sequestered having been, on the 9th April,, released to him on bond, they were no longer in court, and the intervention could not be allowed; and that as intervenor declined to litigate with him, and only claimed the possession of property no longer in court, his demand should be dismissed. Without waiving his exceptions, he plead the general denial.

By judgment of 10th February, 1879, the exceptions were maintained, and the intervention of Ruiz was dismissed.

On the 6th March, on motion,of plaintiff’s attorney, and on suggesting that defendant had, in her answer, declared that she had no-interest in the case, and had thereby put herself out of court, it was ordered by the court that plaintiff be allowed to make proof of his. claim, and to submit the case for adjudication. Accordingly, on that day, on the testimony of plaintiff alone, final judgment was rendered in his favor “ against defendant, Widow F. A. Truxillo, as widow in community and natural tutrix,” for the sum of $1012 17, * * *

with privilege on the property sequestered, the judgment to be operative only against the property, up to its value, “and not binding for any excess over the value oí said property, in personam against defendant.”

Widow Truxillo and Ruiz appealed ; and their appeal brings up for review the judgment dismissing the intervention of Ruiz, apd the final judgment.

We premise that, if the court had acquired jurisdiction by the original petition and the sequestration, it would have been only to the extent of the amount claimed in that petition and sworn to. The court was without jurisdiction touching any demand against Widow Truxillo-personally, because of her domicile in Assumption ; and it could have acquired jurisdiction with respect to the property only by the seizure of that property. The supplemental petitions set up the new and important fact that some $400 more were due plaintiff than the amount claimed in the original petition. These petitions should, therefore, have been sworn to ; and new orders and new writs granted, and new seizures made under them. No such thing having been done, the demands set up in those supplemental petitions, in excess of the original demand, should have been dismissed for want of jurisdiction.

The final judgment is manifestly a nullity. The court held that defendant had put herself out of court; and yet a judgment was rendered against her with privilege on the property. If a defendant could put himself out of court, he would thereby put the case out of court, so that no judgment could be rendered against him. It is only in a proceeding purely in rem that .a judgment can be rendered with respect to property otherwise than contradictorily with some person either in possession, or claiming title or possession. This is not a proceeding purely in rem.

Moreover, Widow Truxillo was not capable of standing in judgment with respect to this property, at any time after the 16th January, 1878. She administered temporarily as tutrix; and if it be conceded that, as widow in community and natural tutrix, she was capable of standing in judgment on the 29th of December, 1877, when the suit was brought, she ceased to have any right as widow in,community by her renunciation of 4th January, and she ceased to have any power to administer, as natural tutrix, on the 16th January, when Ruiz was appointed and qualified as administrator.

The court erred in dismissing the intervention of Ruiz. It has been decided that where property has been released on bond, it is no longer in castodiam legis; that the bond represents the property only as between those who were parties to the suit at the date of the bond ; and that no subsequent intervention could be allowed. All the decisions to this effect, prior to that in Burbank vs. Taylor, 23 An. 751, were in cases of attachment. See Dorr vs. Kershaw, 18 La. 57 ; Beal vs. Alexander, 1 Rob. 277 ; Same vs. Same, 7 Rob. 349 ; McRae vs. Austin, 9 An. 360 ; Wright vs. White, 14 An. 583 ; White vs. Hawkins, 16 An. 25.

The release-bond in attachments differs widely from the release-bond in sequestration. In the attachment the plaintiff has no right to bond; and the obligation of the defendant who exercises that right is that he will pay and satisfy such judgment, up to the value of the property attached, as may be rendered against him in the suit. On giving this bond the attachment is dissolved; and the defendant resumes the possession of his property, with all the rights, power, and control touching it which he had before the attachment. R. C. P. Art. 259.

In cases of sequestration the defendant has the exclusive right to bond, for ten days. On his failure to avail himself of this right, the plaintiff may have the property delivered to him on bond. In either case the condition of the bond is that the party thus obtaining possession, if the property be movable, will not send it out of the jurisdiction of the court; that he will not make an improper use of it; and that he will faithfully present it after definitive judgment, in case he should be decreed to restore the same to the adverse party. R. C. P. Arts. 279, 280.

The object of the attachment is to enforce the payment of a debt, without any pre-existing right to the property attached ; the object of the sequestration is to enforce some pre-existing right to the property, whether the plaintiff claim the possession, or the ownership, or some lien or privilege. These differences would justify the conclusion that the release on bond of property attached takes the property out of the custody of the law, and substitutes, for the purposes of the suit, the bond with security; while, by its very terms, the release-bond in a sequestration keeps the property under the control of the court, in order that the decree, in reference to it, may be enforced against the property itself.

Nevertheless, in Burbank vs. Taylor, 23 An. 751, Carroll vs. Bride-well, 27 An. 239, and Phifer vs. Maxwell, 28 An. 862, the previous decisions in eases of attachment were applied to cases of sequestration; and it was decided that after the release on bond of the property sequestered, neither one claiming to be the owner, nor a creditor asserting a privilege, could be allowed to intervene. If this be true, as a general rule, it cannot be true in a case in which the original defendant is without interest, and without capacity to stand in judgment in the suit; and the person seeking to intervene is the only one with whom the plaintiff could litigate his demand.

After the 16th January, 1878, there was no party to the suit representing or capable of standing in judgment for the owner of this property, that is, the succession of Truxillo. Plaintiff could not have ob-•fcained a valid judgment on his demand without first having made the 'legal representative oí the succession of Truxillo a party; and the sole representative of the succession was Buiz, the administrator. It was the business and the duty of plaintiff to have caused Buiz to be cited •as defendant. But plaintiff did not choose to do this. He had obtained on the release-bond a sum of money more than sufficient to satisfy his demand; and it is not probable that he would ever have taken any steps to make Buiz a party, or to have a definitive judgment rendered. But Buiz, mindful of his duty as administrator, and of his interest as aa creditor, came into court voluntarily, and sought, byway of intervention, to make the precise issues with plaintiff, in that form which he could have made as defendant, if plaintiff had chosen to afford him an opportunity to do so by citing him to answer.

In Tucker vs. Musselman, 6 An. 226, it was decided that where the plaintiff in sequestration obtains possession under a release-bond, he ■cannot be sued for that property in another court, on the ground that it was improperly bonded, while the suit in which it was sequestered is still pending. This decision proceeds upon the plain proposition that property sequestered, delivered to the plaintiff on bond, is in gremio legis; and that the right of plaintiff to retain possession under the bond until 'definitive judgment cannot be questioned in any other court of original jurisdiction. The contrary doctrine would lead to inextri- ■ cable confusion and complications.

In this ease, Widow Truxillo, the only defendant, had striven in vain to have the sequestration set aside, and the suit dismissed. She had informed the court that she was not the representative of the succession; and the plaintiff,, having the money of the succession in his possession, had failed to cite the administrator. The administrator could not have made himself a defendant in the suit; nor could he have sued plaintiff in any other court for the money which plaintiff held under the order and by authority of the Sixth District Court. He was ■compelled to proceed in that court; and it was wholly immaterial whether he preferred to bring a separate suit, which would necessarily have been cumulated with the original suit, or to intervene in the original suit. In either case, the question to be determined was the right of plaintiff to retain the money delivered to him on his bond. If the court was without jurisdiction, the sequestration could not be maintained ; and the plaintiff would be bound to restore the money. If the court had jurisdiction, and the sequestration was not valid, the detention of the money under the bond was not lawful; and the administrator was entitled to the possession.

Waiving any expression of opinion now as to the right of a creditor to sequester the property of a succession under administration, we shall consider the question of the validity of the sequestration upon the hypothesis that the court had jurisdiction to the extent of the value of the property sequestered.

The law requires aá a prerequisite to the issuing of the writ of sequestration, that the judge shall fix the amount of the bond to be given by the plaintiff. If the judge should grant the order, without fixing the amount of the bond, he might supply this omission by supplemental order; but no other person could. In such case, if the writ had been issued, and seizure made, under the original, defective order, a new writ should be issued, and new seizure made on the corrected or supplemental order. • A writ and a seizure under an invalid order cannot be validated by a subsequent valid order. The record in this case shows that the original order was fatally defective; and as there was but one writ, that which was issued under the original invalid order,-and the only seizure was under that writ, on the day that it was issued, the detention of the money seized by the sheriff, under that writ, and the subsequent release and delivery of it to the plaintiff, were equally illegal.

Jurisdiction cannot be acquired by the illegal seizure of property; nor by the citation of a person not amenable to the process of the court, and not capable of standing in judgment in the suit. But every court is competent to determine the right to the possession of property held and detained under its orders and by its authority; and the Sixth District Oourt alone had jurisdiction to determine, on the demand of the administrator, whether he, claiming in his representative capacity, or plaintiff, claiming under the sequestration and release-bond, was entitled to the money seized. It had no jurisdiction whatever of the money demand of plaintiff against the succession of Truxillo.

We do not think it necessary to remand the case, because the record contains all the evidence and issues requisite to the final determination of the controversy; and justice requires that it should bo determined without further delay.

It is therefore ordered, adjudged, and decreed that the judgments appealed from be annulled, avoided, and reversed ; that the exceptions taken by plaintiff to the intervention of Joachim Ruiz, Jr., administrator, be overruled, and the intervention be reinstated; that the demand of plaintiff against the succession of Florentin A. Truxillo be rejected, as in case of nonsuit, with reservation of his right to proceed against the succession in the proper tribunal, as if this suit had not been brought; that Joachim Ruiz, Jr., in his capacity as administrator, be decreed to be the lawful owner and entitled to the immediate possession of the money, to wit, the sum of twelve hundred and eighty one dollars and thirty nine cents ($1281 39), sequestered in this suit, and by the sheriff released on bond and delivered to Bernard Lemann on the 9th April, 1878 ; that there be judgment in favor of said Ruiz, administrator, against said Bernard Lemann, for said sum of twelve hundred and eighty one dollars and thirty-nine cents ($1281 39), with interest at the rate of ñve per cent per annum from the ninth day of April, 1878, until paid; and that the said Bernard Lemann pay all the costs of this proceeding in this court and in the district court.

Mr. Justice White having been of counsel takes no part in this decision.

On Application hoe Reheaeing.

Spencer, J.

Our great respect for the plaintiffs counsel, and our belief that the intemperance of his zeal, in the application for rehearing, is due to the sincerity of his convictions, have induced us to most carefully reconsider the opinion heretofore rendered. The counsel says: “ It is a remarkable fact that the judgment rendered reverses five points or rules of practice up to this time established by the jurisprudence of the State.” That in support of these rules he has “ cited precedents and authorities,” while in reversing them this court has cited none. “At one sweep the court has made five important changes in our jurisprudence,” and he no longer “ dares tell a client how the law stands!” Reminding the court that its pride of opinion makes it his adversary, he proceeds to demonstrate our errors.

It requires but a brief experience to teach judges that their decrees are frequently subversive of the “established jurisprudence” only because they are adverse to the desires and not responsive to the hopes of counsel. Without arrogation, we think it may be safely asserted that judges, who have no interest, feeling, or passion to warp their minds, will more frequently be right in their conclusions than will the counsel who has been wrought to white heat by the friction of combat.

I.

The first point wherein we are charged with the subversion of the jurisprudence is in having held that an order of sequestration, rendered at chambers, which did not fix the amount of bond, was fatally defective,. and that the judge could not, months after the writ had been executed, cure the defect by an order fixing the bond ¡nunc pro tunc. The counsel cites us to the authorities overthrown. They are found in 7 An. 284; 1 R. 165; 3 An. 260; 6 An. 701 and 707; 12 An. 349; and 25 An. 115.

We have studied these cases attentively, and if there is one of them that sustains the proposition that the bond may be fixed nunc pro tunc, in eases of the conservatory writs of injunction, sequestration, etc., we have failed to find it.

We understand those eases as holding what we had supposed to be elementary, to wit: That where an order has been made, or a proceeding had, in a cause pending in a court of record, and where, from oversight or negligence, the record does not show that such order has been rendered or proceeding been had, the court may order it to be entered of record mine pro tunc. Even this rule must be confined to orders and proceedings in open court; for in granting orders at chambers the judge does not manifest or declare his will otherwise than in writing. As was said in one of the cases cited by plaintiff, 12 An. 349, “ the judicial acts of a court of record are evidenced by the record alone ; that no parol proof of a verbal order is admissible to supply the want of record evidence. That an order rendered, but not' entered, may in proper cases be entered, nunc pro time.”

II.

In the second place, we held that where the jurisdiction of a court existed only by reason of its seizure of property, if that seizure was illegal and void, the court has no jurisdiction. In other words, the seizure being the basis, the reason, of its jurisdiction, the seizure failing, the jurisdiction was gone. Sublap fundamento, caditopus. As a corollary of this, we held that the jurisdiction was limited to, and measured by, the amount of the debt for which the seizure was effected; and that further money demands, in amended petitions, for which no seizure was made or prayed were therefore beyond a jurisdiction which rested only on the seizure. The only case cited as overturned by these views is that of Ohio Ins. Oo. vs. Edmonson, 5 L. 298. In that case the plaintiff, claiming a lien on a steamboat, presented a petition setting forth the nature, etc., of its claim, and prayed for a writ of provisional seizure. The facts stated being duly sworn to, the writ was granted. In a supplemental petition plaintiff alleged that the facts stated in its original petition entitled it to a writ of sequestration also. To this supplemental petition-was annexed plaintiff’s affidavit that the facts stated in the original petition were true.

Held, that as the facts of the original petition were sworn to, and entitled the plaintiff to a sequestration, and as no new facts were set out in the supplemental, it was not necessary for him to swear to its allegations. The court intimated, and correctly, that the second affidavit to the facts of the original was unnecessary, as they were already sworn to before.

The court simply held that the original petition and affidavit thereto entitled the plaintiff to either or both writs. We leave the counsel to trace the slightest analogy between that case and this. We cannot.

III.

The plaintiff brought suit against the widow and tutrix administering to recover a debt of the deceased. She subsequently renounced the community, and was superseded by the appointment of an administrator (Ruiz). Thereupon she alleged that she had no capacity to stand in judgment for the estate, and averred that she had no personal interest in the property. At this juncture, Ruiz, the administrator, who superseded the tutrix, came forward and asked to become party to the suit. He was the only possible person contradictorily with whom plaintiff could proceed. But the plaintiff excepted to Ruiz’ right to appear or intervene; had him dismissed from the case. Then he had it solemnly adjudged that the widow and tutrix had put herself out of court, and could no longer be heard, and thereupon proceeded to take an ex parte judgment against the widow and tutrix, limiting his judgment in execution to the property sequestered. In other words, having expelled from the case all opponents, having no longer an adversary “ to molest or make him afraid,” he proceeded ex parte to the proof of his claim, and took j udgment therefor “against the widow and tutrix” whom he had just had ejected from the ease as being without capacity and without interest! We declared the judgment so taken a nullity, for want of a defendant. The counsel says that in so holding we have overruled two decisions of this court, and violated logic as well as law. We leave him to wrestle with the problem, remarking en passant, that it is a mere delusion to suppose that plaintiff’s suit was what is known technically as a “ proceeding in rem.” That proceeding is provided for in C. P., arts. 285,290, et seq. It can only be resorted to where the party has a privilege on a thing “ either lost or abandoned by its owner, or whose owner is either unknown or absent.” Even then, “ an advocate ” must be appointed for the owner, and public notice be given in the papers.

IY.

Counsel says he has cited six leading eases to the effect that an intervenor cannot except to the jurisdiction of the court, and that we have held that he can do so.

Plaintiff was the creditor of an estate opened in Assumption. He seized property of that estate in Orleans, claiming privilege thereon. We waive any decision as to his right to do so. At the time of bringing suit, the estate was administered by the widow as natural tutrix, and she was properly sued as its representative. But before any progress had been made in the suit, she was destituted from the administration, and superseded by Ruiz as administrator. She pleaded these facts. They were not, and could not be, denied. What, under these circumstances, should plaintiff have done ? He should at once have asked to have Ruiz cited as defendant, he being the successor of the tutrix in the administration. Plaintiff did not do so. But Ruiz came without citation and asked to be admitted to the defense of the suit. Upon reflection, we see no reason why the heir or legal representative or successor of a defendant, may not, on his own motion, make himself party in lien of the person to whom he succeeds, upon proof that he is such representative. Otherwise, plaintiff by neglecting or refusing to have him cited might keep a succession open forever. We held that Ruiz could make all the defenses that the tutrix could or did make. He was in reality the defendant, and the only defendant that there could be in the case, after his appointment as administrator. Besides, he had a right to claim from plaintiff the property or funds of the estate illegally held by him under bond. No other court could'have restored him that possession. He had a right to adopt and insist upon the defenses made by his predecessor as defendant. Why cite to us, as applicable to this case, authorities which treat of the intervention of third persons ? Can there be a suit with only a plaintiff and an intervenor in it ? If Ruiz was not defendant, then there was no defendant, and therefore no suit.

Y.

On the subject of the different effects of release-bonds in attachment and in sequestration, we only desire to add to what we have already said a few observations.

It would be strange indeed if a plaintiff could become owner of property by simply sequestering it on a claim of privilege or ownership and bonding it. Yet plaintiff’s counsel insists that the effect of plaintiff’s release-bond is to put the property at his disposal. Is it possible that because I have a privilege on a thing, sequester it, and bond it, I can dispose of it at my pleasure? Could not the owner revendicate it in kind in the hands of my vendee? Would not any sale of it by me be absolutely void ? Is it not manifest then that a plaintiff in sequestration gets by his release-bond only the custody and keeping of the thing pending the litigation ? That he holds the property for the court, and not for himself? Yet the counsel cites us to 24 An. 570, as authority for the doctrine that plaintiff in such case can dispose at pleasure of the thing sequestered. The case decides nothing of the sort, and would be absurd if it did. It simply decides that the defendant and owner who has bonded his property under sequestration may remove it from a rented place which he is leaving. Of course he can. He is its custodian, as well as its owner.

We see no reason to change our former conclusions, and the rehearing is refused.


source: Caselaw Access Project

author: DeBlanc, J.

license: Public Domain

text:
    No. 7463.
    Succession of Bridget Coyle.
    A creditor of the defendant in a certain suit who appeals from the judgment rendered in the suit, and aslcs that it he set aside on the ground of irregularities, institutes what is in «effect a revocatory action, and he cannot maintain such an action when he fails to allege that such judgment was in fraud of his rights, or that it gave the judgment creditor an unlawful preference, or that the defendant had not sufficient property to satisfy his own claim and the judgment also.
    A creditor cannot complain that her debtor has renounced the usufruct of his children’s property, because such a usufruct cannot be made liable to the payment of debts.
    j^PPEAL from the Second District Court, parish of Orleans. Tissot,

      Thos. Gilmore & Sons for appellees.

      üharles Louqiie for appellant.
    Charles Louque, for appellant, contended:
    First — James Coyle was the usufructuary of the community property accruing to his children, and they could, not, during the existence of his usufruct, sue him to recover’’their share. R. S. sec. 1710; Acts 1844, page 99; 14 A. 356. No renunciation of this usufruct appears in the record.
    Second — One of‘the plaintiffs is a minor, still under the tutorship of James Coyle. The undertutor represented the minor in said suit. The minor cannot sue his tutor pending the tutorship. 30 A. 675.
    'Third — That the creditors of a usufructuary can cause to be annulled any renunciation of his rights to their prejudice, whether it be accompanied with fraud or not. C. C. 624.
    Fourth — A wide distinction exists between an appeal by a third person and a revocatory action. The one is used where the defects are apparent on the face of the record and may be corrected by the appellate court; the other, where all the forms are correct, but the intention of the parties was to defraud. We know very well that a Tevoeatory action may be brought to annul a fraudulent judgment, ■as was decided in 11 L. 419, the case cited by the court to support the theory that the judgment appealed from cannot be reversed. 3But that case never decided that a judgment which was rendered for a debt not exigible and in favor of a person incapacitated from appearing in court could only be set aside by a revocatory action.
    T. Gilmore & Sons, contra, contended :
    This is an attempt on the part of the appellant to make this appeal serve the purpose of a revocatory action. It is scarcely necessary to say that this court cannot entertain it.

      The grounds alleged against the judgment are frivolous.
    The children have a right, whenever the value of the property specially-mortgaged diminishes so as to endanger their interest, to require an additional mortgage; and it is the duty of the undertutor to see to-it. Civil Code, art. 328.
    It is not perceived how the failure of James Coyle to insist upon his usufructuary rights can injure the appellant. Those rights are not. subject to seizure and sale on execution. C. C. 1992.
   The opinion of the court was delivered by

DeBlanc, J.

Bridget died in 1858, leaving several children, who-all — except one — are now of age. On the 16th of April 1859, James Coyle, the father and tutor of those children, rendered an account of' his tutorship, in and by which he acknowledged to be indebted to them in the sum of $12,802 62.

In order to discharge his property from the legal mortgage arising from the tutorship, he gave a special one, and — on the 19th of October 1878 — nearly twenty years after the rendition of his account — he was sued by his wards and confessed, in their favor, a judgment which— without his absolutely useless confession' — is fully sustained by the evidence introduced on the trial.

Miss Mulligan, a creditor of Coyle, has appealed from, and urges, the reversal of that judgment, on the grounds :

1st. That one of the plaintiffs in the suit brought against Coyle, is a minor, who is still under his tutorship, and by whom he could not legally have been sued. ••

2d. That he is entitled to, and does not appear to have renounced^ the usufruct of his children’s share in the community heretofore existing between him and his deceased wife, and that they cannot — now— recover the share subject to that usufruct.

These grounds are urged — not in 'the motion filed to obtain the-; appeal, but in her counsel’s brief. •

The appellant does not conte'st the children’s claim, but — in his-: argument — complains, in substance, that the object of Coyle’s confession was to facilitate and hasten the obtaining of the judgment appealed from, in order to have it recorded before that which she herself was-then seeking to obtain against him.

This court held that, “ where the object of a suit is to annul a judgment and the assignment of property under it, as being in fraud of creditors, it is to be regarded as a revocatory action, by which they can avoid-every act of their debtor, so far as it is injurious to them.”

11 L. 419.

“ That action can only be exercised when the debtor has not property sufficient to pay the debt of the complaining creditor, or of all his ■creditors, when there has been a cession.”

O. 0.1971 (1966), 1984 (1979).

Admitting — as it is not denied — that, under the averments of her motion for an appeal, Miss Mulligan was entitled to that which she obtained, and that she can- — as a creditor — successfully urge irregularities which, if they do exist, are personal to, and were waived by Ooyle, how can she justly expect the reversal of a judgment which she herself •acknowledges to be correct, when she merely charges — in the only pleading filed in her name — “ that it tends to defeat the collection of her claim,” and does not charge that the confession — of which alone she complains — was made in fraud of her rights, or to secure for the children an undue and illicit preference, nor that Coyle has not sufficient property to satisfy her own and the plaintiffs’ demand ?

As to Coyle’s usufruct of that portion of the common property inherited by the legal representatives of his wife, it matters not — so far as Miss Mulligan is concerned — whether he could or did renounce it, for the Code expressly provides “ that such a right cannot be made liable to the payment of debts.”

C. 0. 1992 (1987).

"Whether considered separately or collectively, the facts alleged and relied upon by Miss Mulligan do not sustain her application, or authorize the reversal of the judgment appealed from, which is affirmed -at her costs.

Rehearing refused.


author: White, J.

text:
    No. 7679.
    State ex rel. Frederick Keufner vs. the Mayor of Morgan City.
    'The constitution of 1879 -was not operative from tlie date of its adoption "by tlie convention, but only from its ratification by the people as evidenced by the promulgation of the result of the election.
    jyjlANDAMUS and Prohibition.

      Henry Train, A. & W. Voorhies for relator.

      B. F. Winchester, city attorney, for respondent.
   The opinion of the court was delivered by

White, J.

On the 16th of December, 1879, the relator, by affidavit, was charged with selling meat outside of'the public market in violation of the ordinances of Morgan City. He was tried by the mayor and sentenced on the 16th of December to pay a fine of five dollars, or in default, to five days imprisonment in the city jail. A suspensive appeal having been refused, the proceeding we are now considering was taken to compel its allowance. The mayor in response to the rule nisi says, that the appeal was refused because the constitutionality of the ordinance was not brought in question, since the defendant only urged, not that the ordinance violated the then existing constitution, but the proposed constitution of 1879, not at the time of the charge, trial, sentence, or refusal of the appeal, officially promulgated as having been adopted. The answer is borne out by the record, which is made a part of the return, and in fact is admitted to be correct by the relator’s petition. Under this state of things, it is manifest that we cannot make the rules absolute, for although our jurisdiction extends to reviewing the constitutionality of a fine imposed by a municipal corporation, no such question is presented, as the only complaint of the relator is that the fine violated not the constitution, but one proposed for adoption.

The rules are discharged at relator’s cost.

Rehearing refused.


author: Manning, C. J.

text:
    No. 7634.
    City of New Orleans vs. People’s Bank of New Orleans.
    Banlrs organized and doing business under the free hanking law enacted in the year 1853 are not subject to taxation in the form of a license. The exemption, from license-tax of those banks, as a class, is not a violation of the constitutional requirement concerning equality and uniformity.
    ^PPEAL from the Third District Oourt, parish of Orleans. Monroe,

      S. P. Blanc, assistant city attorney, for plaintiff and appellee.

      F. W. Baker, W. S. Benedict and Jos. P. Hornor for defendant and appellant.
    S. P. Blanc, assistant city attorney, for plaintiff and appellee, contended :
    That the question of exemption is not new. Your Honors have fully disjaosed of if, not only in cases presenting simply analogous feature© and resting on the same principles, but in controversies between the banks and the city, in some of which precisely similar laws of exemption were set up against the license demand, and in one of which a plain and unequivocal exemption from all taxation, except on real estate, was expressed. City of New Orleans vs. Louisiana Savings Bank and Safe Deposit Company, 31 An. p. 637; State of Louisiana vs. Southern Bank, 31 An. 519 ; Louisiana Cotton Manufacturing Company vs. City of New Orleans, 31 An. 440 ; City of New Orleans vs. St. Anna’s Asylum, 31 An. 292. These eases dispose of every point which can be urged by the defendant to maintain a claim for exemption. Constitution of 1868, art. 118; 24 A. 86; 28 A. 766; 29 A. 284; 21 A. 1; Dill, on Mun. Oorp. sec. 616 ; 27 A. 438; 30 A. 259 ; 18 Wall. 225 ; Burrough on Taxation, p. 150.
    E. W. Baker, W. S. Benedict, and Jos. P. Hornor, contra, contended :
    First — The question as to whether the free banking act was a contract, and whether licenses can be enforced against the free banks, needs no argument.
    This court, in the cases of the City of New Orleans vs. Southern Bank, 11 An. '41; State vs. Southern Bank, 23 An. 271; State vs. Union Bank, Opinion Book No. 39, p. 426 ; State vs. Mechanics’ and Traders’ Bank, and State vs. Merchants’ Bank, Opinion Book No. 39, p. 316 ; the last three not reported, has declared that the free banking act was a contract by which the State and its creatures were bound not to impose such license. 31 A. 519.
    Second — The Act No. 192 of 1857 did not repeal the free banking act, which was a contract with the State, and hence could not be repealed.
    Third — The constitution of 1868 is not in conflict with, nor did it alter or change the free banking act, (and even if any change were made it could not affect banks organized after that constitution went into effect.) Constitution of 1868, art. 149; 21 A. 1; Hen. Digest, p. 788, iii. Nos. 1, 2, 3, 4, and 6 ; 21 A. 726; 23 A. 449 ; 10 A. 56; 11 A. 739 ; 20 A. 373 ; 29 A. 285 ; 30 A. 554, 910 ; 10 A. 398; 21 A. 434; 1 Woods, 85.
    What prescription bars licenses ?
    The late decision of your Honors in succession of Zacharie, 30 An. 1260, Axes ten years ns the bar to taxes, but licenses are not referred to. As to them, we submit that the limit of two years, recognized in the cases of Buckner vs. Fox, Collector, 22 An. 246, 16 An. 132, and 15 An. 381, would be more reasonable.
    Further, by section 36 of Act No. 96 of 1877, it will be seen that the term of prescription of all taxes has been reduced to three years. This we invoke.
   The opinion of the court was delivered by

Manning, C. J.

The plaintiff sues for nine thousand dollars, licenses for as many years commencing with 1870, at one thousand dollars each. The defendant pleads that it is a free Bank, and is therefore exempt by law and under its charter from the payment of this license, and that a large portion of the claim is prescribed.

This Bank was organized under the Free Banking law of 1853 — the date of its organization being December 1869. It has been held that the Banks organized under that law are not subject to taxation in the form of a license. New Orleans v. Southern Bank, 11 Annual, 41. The State y. same Bank, 23 Annual, 271, and the same ruling has been applied to three other Banks in cases unreported. It is too late now to question the correctness of those decisions.

But the plaintiff relies on the State v. Southern Bank, 31 Annual, 519, where we held that a license was due. Our decision was based expressly on the re-incorporation of that Bank in 1873, subsequent to the enactment of the Free banking Act of 1870, and of course under the constitution of 1868, and we therein pointed out how that constitution, and Secs. 307 and 315 Rev. Stats, affected the question quoad that Bank because of its re-incorporation under the dominion of those laws.

This case is distinguishable from that. The organization of this Bank was in 1869 under the first free banking Act. It has repeatedly been held that the constitutional requirement (Const. 1868 art. 118) that taxation shall be equal and uniform does not inhibit the legislature from, nor deprive it of the power of, dividing the objects of taxation into classes. City v. Kaufman, 29 Annual, 283. City v. Davidson, 30 Annual, 554. City v. Fourchy, Ibid. 910 and cases reviewed. Hence when a Bank claimed exemption from the payment of a license because of a special provision to that effect in its charter, we held that such exemption was unconstitutional, because it was of a particular bank. City v. La. Savings Bank, 31 Annual, 637.

The defendant Bank is one of a class. The Free Banks differ from all others in many particulars. They are organized in a different manner from other Banks. They are subject to peculiar restrictions. They possess peculiar and exclusive rights and powers, and are encumbered with prohibitions not common to other Banks. There are, or were, many of them, forming a class possessing exceptional attributes, whose creation, mode of existence, and dissolution were unlike others. An exemption of these Banks as a class is not violative of the constitutional requirement concerning equality and uniformity.

The free banking act of 1853 had exempted this class of Banks from the payment of a license. There was nothing to prevent this exemption from operating in favor of the defendant unless the constitution of 1868, under which it was organized was in the way, and we have seen that it was not.

This Bank had claimed a similar exemption from taxation on.its capital stock, but it was denied, City v. People’s Bank, 27 Annual, 646, and it appears in the record that it has paid forty-four thousand dollars during the time for which these licenses are now claimed.

We think this Bank is one of a class, whose exemption from the payment of a license as a class is not prohibited by the constitution of 1868, and that it does not fall under the rule applied to the Southern Bank in the last Annual because it was not organized under the Acts of 1870, but prior to the passage of the Revised Statutes, and under the prior law of 1853 which specially exempted them from the demand of the city made in this suit. A consideration of the plea of prescription is thus rendered unnecessary.

It is therefore ordered and decreed that the judgment of the lower court is avoided and reversed, and that there be now judgment in favour of the defendant against the plaintiff on her demand, and for costs in both courts. '

Rehearing refused.


text:
    No. 7626.
    R. L. Belden vs. John Hanlon.
    One •who tahes after its maturity a simulated note executed "by a husband to defraud bis wife and secured by a simulated mortgage on community property, will not be permitted to enforce the note and mortgage to the prejudice of the wife'who, before the transfer of the note to its holder, had obtained a judgment against her husband of separation from bed and board, and for a settlement of the community.
    A wife separated from bed and board from herhnsbandby valid judgment may proceed by way of third opposition to enforce her claim to one half of the proceeds of certain community property, about being sold under an order of seizure and sale.
    "While a wife cannot set up any claim to the prejudice of any real mortgage, or sale of community property made by the husband before the institution of her suit for separation, she may do so when the alienation was simulated.
    APPEAL from the Fourth District Court, parish of Orleans. Houston, J.

      E. K. Washington for plaintiff and appellant.

      W. E. Murphy for defendant and appellee.
    E. K. Washington, for plaintiff and appellant, contended :
    First — That a wife under the law of Louisiana has no right to assail any sale or mortgage of community property made by the husband prior to the institution of a suit by her for separation. C. 0.150; 6 L. 461; 2 A. 226. .
    Second — -That a wife cannot oppose by way of third opposition the foreclosure of a mortgage of community property executed before she sued for a separation. C. P. 105, 396 ; C. C. 2404.
    Third — That a third opponent who is not the owner, and has no interest in the mortgaged property sought to be sold under executory ^process, cannot inquire into the validity of the proceeding as between the plaintiff and defendant in the original proceeding. 15 -An. 136.
    W. E. Murphy, contra, contended :
    That this is an independent action by way of opposition 'filed in the original proceeding, under Art. O. P. 105, revendicating opponent’s rights to the property seized, which plaintiff attempts to destroy under the form of executory process. Claverie vs. Gerodias, 30 A. p. 291. But we are told that article 2404 of the C. 0. only gives the wife an action against the heirs of the husband for one half of the property. This article only applies when the community or marriage exists, but when it is severed by judgment of separation from bed and board, or divorce, the reason of the law ceases, and she has her action as decided by this court in the case of Smallwood vs. Prat, 3 R. 132. There are also several objections noted to the introduction of evidence. “Fraud and simulation may be proved by any means in the power of the alleging party.” Pendleton vs. Eaton, 23 A. 435. “ Conversations and admissions of parties implicated in a fraud or simulation may be given in evidence.” Bushnell vs. City Bank, 20 A. 464 ; Lazarre vs. Jacques, 15 A. 599 ; Gordy vs. Lyons, 29 A. p. 4 ; Hoose & Victor vs. Robbins, 18 A. 468 ; Carrollton Bank vs. Cleveland, 15 A. 616 ; Code Napoleon, Art. 271; Journal du Palais, tome 4, douziéme partie, p. 494; Dalloz, tome 10, fo. 206.
   The opinion of the court was delivered by

Manning, C. J.

Executory process was taken out by Belden to foreclose a mortgage executed by Hanlon in favour of one Navio to secure a note for twenty five hundred dollars, of which Belden claimed to be the owner. The date of the mortgage and of the note is March 13, 1878, and the latter is made payable six months thereafter.

Two days after the execution'of these instruments, the wife of Hanlon instituted a suit for separation from bed and board against her husband, and for a dissolution and settlement of the community of acquets existing between them, and had judgment therefor early in 1879. Alimony was also allowed but never paid, although several attempts were made to enforce its payment, mainly it appears through rules for contempt.

The executory process was sued out March 19, 1879, and Belden says he bought the note about a month before that date, and consequently five months after its maturity. The property was advertised to be sold on May 3d of same year. A few days before the sale-day, Mrs. Hanlon filed her third opposition praying an injunction, and through it the sale was arrested.

She alleges that the note and mortgage are pure simulations, executed for the sole purpose of fraudulently depriving her of her interest in the community, and with a knowledge that she was about to institute a suit for its settlement, and for separation — that her husband did not owe Navio anything, and no money or other consideration was given by him to her husband for the note — that Belden was a party to the scheme, and that he gave no consideration for the note at his alleged purchase, and was fully cognisant of the judgment that had by that time been rendered in Mrs. Hanlon’s suit against her husband, and was not only a purchaser after maturity, but had knowledge of the fraudulent origin of the note.

The testimony sustains these allegations. Belden, Navio, Hogan the notary, were sworn as witnesses. Navio, a labourer on the levee, pretends to have loaned four hundred dollars to Hanlon, and that was the sole consideration for the note of $2500, the agreement being that he was to discount the note in some way, and hand back the surplus to Hanlon. He tried, but failed to find a purchaser for eleven months, and finally succeeded, the present plaintiff giving him $416 cash, one thousand dollars in State warrants, and three thousand dollars in stock of the Mississippi Yalley Mining Company, the mine being located in Colorado. A m'onth afterwards this part of the plaintiff's testimony is corrected by himself, and two thousand dollars is stated to be the correct amount of mining stock that he transferred, and the mine to be located in Utah.

An auctioneer and appraiser of property is sworn as to the value of the property mortgaged, and he says it would not fetch more than twelve hundred dollars, though it is said Hanlon gave four thousand dollars for it. His deed was not produced. The plaintiff knew Navio only about ten days before he purchased the note, and this process was taken out about a month after his purchase.

It is needless to state more of the.testimony. That the object of Hanlon in executing the note and mortgage to Navio was to interpose an obstacle to the realization by the wife of her interest in the community is patent. That Navio gave no consideration for the note, and that the whole transaction, so far as he was concerned, was a simulation is equally clear. Up to the time when Belden got possession of the note long after its maturity, there is nothing to redeem it from the taint of fraud. The fact that the note was long overdue should have put him on his guard. He took it subject to all equities. He is a lawyer and knew that. Mrs. Hanlon had then obtained her judgment against her husband, with an injunction forbidding the alienation of his property. We have not been able to resist the conclusion that he knew the purpose of Hanlon, and aided him in its execution. So far as the proof is concerned, the allegations of Mrs. Hanlon touching the complicity of all the parties in the fraud are fully sustained.

But legal objections are raised both as to the form of the action, and the ability of the wife to prosecute it.

An opposition may take place in two cases, 1. when the third opponent pretends to be the owner of a thing which has been seized; 2. when he claims a privilege on the proceeds of the thing seized and sold. Code Prac. art. 396.

The proof is that the house and lot, seized under the mortgage, is the only property Hanlon has, and that it was bought daring the marriage. His wife’s judgment, rendered contradictorily with him, had dissolved the community, and awarded to her her share of it. She was therefore owner in a sufficient sense to justify her resort to the proceeding of third opposition.

But at the time the mortgage was executed there was not even a suit for separation and for dissolution of the community. That suit was instituted two days after the date of the mortgage, and we are referred to the exposition of the law long ago made, that the wife has no action against the husband for property of the community sold by him before the institution of a suit for separation. Tourne v. Creditors, 6 La. 459.

This is true, and has been stated with force and precision in Guice v. Lawrence, 2 Annual, 226. The laws of this State have never recog-nised a title in the wife during marriage to one half of the acquets and gains. As long as the husband lives and the marriage is not dissolved, the wife cannot prevent the husband from disposing of the community property under the pretext that the law gives her one half. The husband is the head and master of the community, and has power to alienate the immovables which compose it by an encumbered title without the consent or permission of his wife. Civil Code, art. 2373 new no. 2404.

Here there was no real alienation, no real mortgage. The form of a mortgage was a device by which it was designed to put an apparent lien and encumbrance on the property which had no real existence. The device was transparent, and has not escaped detection. The wife was properly permitted to prove the simulation of the transaction, and the property remains as if neither note nor mortgage had ever been executed.

The lower court sustained the demand of the third opponent, and accorded the judgment she prayed. The judgment is correct, and is affirmed.

Rehearing refused.


author: Spencer, J.

text:
    No. 7560.
    The State ex rel. J. J. Atkinson vs. the State Auditor.
    The Legislature may provide for tlie payment of a just debt of tbe State out of any surplus of tbe revenues of any particular year.
    In tbe absence of proof to tbe contrary it must be presumed tbat tbe revenues of eacb year will be sufficient to meet eacb and every appropriation made by tbe Legislature payable out of those revenues.
    An act of tbe Legislature appropriating a specific sum to reimburse moneys paid into tbe treasury through error, does not violate tbe 3d section of tbe constitutional amendment of 1874.
    Tbe two subjects “debts” and “ expenses,” are so germain, and connected, tbat a legislative provision for “a debt,” may be constitutionally made under a title expressing provision for “expenses.”
    APPEAL from the Third District Court, parish of Orleans. Monroe, J.

      Breaux, Fenner & Hall for relator and appellant.

      James C. Egan, Assistant Attorney-General, for defendant and ap-pellee.
    Breaux, Fenner & Hall, for relator and appellant, contended:
    First — That the officers of the State are without power to place a trust fund belonging to certain persons in the treasury to the credit of the general fund.
    Second — That the Legislature is empowered to appropriate from the revenues of any year the money necessary to replace a trust fund erroneously paid into the treasury of the State.
    J. C. Egan, Assistant Attorney-General, for defendant and appellee, contended:
    First — That the word debt does not apply to the necessary and ordinary current expenses of government, and hence that money raised from taxes to pay such expenses cannot be applied to the payment of a debt.
    Second — That the revenues of one year cannot be appropriated to pay an expense of any other year. Constitutional amendment of 1874, ‘ section 3.
    Third — That an act which appropriates a sum in payment of a “debt of the State” under a title which provides only for the general “ expenses ” of the State is unconstitutional.
   The opinion of the court was delivered by

Spencer, J.

This case was before us in April, 1879. See Opinion Book No. 51, p. 172, not reported. It now appears that the surplus proceeds of the property sold by the State for taxes were erroneously carried to the general fund in 1872, and have been, therefore, diverted from the purposes contemplated by law. We held that the sum so remaining of proceeds of property sold for taxes was a trust fund, and that the law required it to be placed in the treasury to the credit of the owneré of the property.

In the general appropriation bill of 1879 there is an appropriation of $2000 “for reimbursement of moneys paid into the treasury through error.” Relator now demands that the Auditor be compelled to issue a warrant for, and the Treasurer to pay, the sum of $1141 55, out of said appropriation, which it is admitted remains unexpended, except to amount of about eighty dollars.

The defense is, that the appropriation in the act of 1879 is unconstitutional :

First. Because by the 3d section of the amendments of 1874 to the constitution, “the revenues of each year derived from taxation upon real, personal, and mixed property, or from licenses, shall be devoted solely to the expenses of said year for which it shall be raised, excepting any surplus remaining, which shall be directed to sinking the public debt.”

Second. Because the title of the act, to wit: “ Making appropriations for the general expenses of State government for the year ending 31st December, 1879,” does not cover the appropriation in question.

We agree with the Assistant Attorney-General that the sum due to and demanded by relator cannot be considered an expense of 1879. It is a debt of the State, however, of the most sacred character, growing out of the misuse of trust funds in 1872. It being a debt of the State, provision may be made for its payment out of any surplus of the revenues of 1879.

The Legislature of 1879 made its estimates of receipts and expenditures for that year, and levied taxes and made appropriations accordingly. In the absence of proof to the contrary, we must presume that the revenues will be sufficient to meet all the appropriations made against them, and therefore that after satisfying the expenses of 1879, there will remain a surplus sufficient to meet the appropriation of $2000 for reimbursing moneys paid by error into the treasury.

We cannot presume that the Legislature has transcended its constitutional power. We do not see, therefore, that the amendment of 1874 is shown to have been violated in this provision.

As regards the title of the act, we think that the subjects, “ debts ” and “ expenses,” are so germain, and connected, that provision for “ a debt” may be made under a title expressing provision for “ expenses.” In common parlance there is, no doubt, a distinction in the meaning of the words “ debts ” and “ expenses.” The latter is usually applied to those current temporary obligations which are met by pay-inent as they arise, while the former designates obligations of a more enduring kind. But they are kindred subjects, and the distinction between them is often very shadowy.

We think the relator is entitled to the relief sought, but without interest on the sum due.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled and reversed; and it is now ordered and decreed that the writ of mandamus prayed for be made peremptory, and that the Auditor of the State do issue, and the Treasurer pay, a warrant to relator for the sum of ¡$1441 55, to be drawn against, and paid out of, the appropriation of $2000 made in general appropriation bill of 1879, for “reimbursement of moneys paid into the treasury through error.” The costs to be paid by respondents.


text:
    No. 6731.
    Josephine Fecel, Administratrix, etc., vs. Jas. P. Guinault.
    la a suit to annul a sale, tlie vendor is a necessary party. In liis absence tlie validity of tlie sale cannot be passed upon.

      A. mortgage made by a notoriously insane person, and who was at tlie time known by the mortgagee to be imbecile, or made by his attorney in fact, is null and void, although the mortgagor was not interdicted at the date of the mortgage.
    APPEAL from the Sixth District Court, parish of Orleans. Bightor, J.

      JBelclen & Duvigneaud, for plaintiff and appellee.

      W. E. Murphy for defendant and appellant.
    Belden & Duvigneaud, for plaintiff and appellee, contended :
    That a person notoriously insane, whether interdicted or not, was incapable of forming a valid contract with one aware of the insanity. They cited in their support C. C. arts. 1780, 1782, 1783, 1788, and . 402 ; also 5 M. 425 ; 10 M. 604 ; 4 L. 115 ; 12 A. 24; do. 624; do. 651; and 26 A. 463.
    W. E. Murphy, for defendant and appellant, contended :
    First — A judgment rendered annulling the sale from Pavageau to Rodi, without making Pavageau (the person most interested) a party to the suit, is a nullity.
    Second — The judgment grants to plaintiff more than he asked for, inasmuch as the notes given for the sale referred to, and which had been sued for under the No. 8364, are not mentioned in the prayer of the petition. t
    Third — That the preponderance of the evidence is in favor of the sanity of the plaintiff Rodi at the time of contracting the obligation. RC. C. art. 1788, Nos. 2, 3.
    Fourth — That there is no proof that obligor was notoriously insane, or that defendant was aware of the, fact. A party’s insanity to annul a contract it must be shown that it could not possibly have been' unknown to the other party. La. Bank vs. Dubreuil, 5, M. 425,. which covers this case in all respects; and when the contract i© made before interdiction, not only general insanity, but the notoriety of that fact, must be shown. Kennedy vs. Dow, 10 M. 604; Lalorie vs. Lacoste, 4 L. 115. Good faith in a contract is always presumed; and the court will believe that the parties understood one another-Noe vs. Taylor, 13 L. 254 ; Rau vs. Katz, 26 A. 466.
    Fifth — That a person subject to bodily disease which may eventually terminate in insanity or imbecility is no reason to conclude that he-was incapable of contracting at the time the contract was made ; on the contrary, the presumption is always in favor of soundness of' mind, unless resulting from the act itself. Francke vs. Francke, 2S> A. 302.
    Sixth — The testimony in this case shows beyond a doubt that Rodi was capable of consenting, and did consent, which was supplemented by the consent of his duly constituted agent, appointed to aid him in his business on account of physical inability to act.
    Seventh — That even in case incapacity to consent was proved, the judgment is erroneous in annulling the sale without decreeing the return of the fruits and revenues which inured to the beBeñt of purchaser, Yanwick vs. Rist, 14 A. 56 ; Latham vs. Hickey, 21 A. 425.
    Eighth — No suit for the interdiction of Rodi was brought until December, 1875, two years after the sale of Pavageau to Rodi, and fifteen months after the mortgage to Guinault, six months before his-death, and was instituted only for the purposes of this suit. R. CC., art. 1788, Nos. 4 and 5, art. 402.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff, as administratrix of her deceased husband,. Ant. Rodi, and tutrix of his children, sues to annul,

First — An act of sale of certain real estate on Ursulines street, made-by R. Pavageau to her said husband, on 12th August, 1873, and, second, an act of mortgage executed by her said husband, on 7th day of September, 1874, in favor of the defendant, Guinault, on certain real estate-on Greatmen street.

Pavageau sold to Rodi the Ursulines-street property for $2600, of which price $2000 were represented by two notes of $1000 each. Gui-0, nault, being the holder of a mortgage on this property, the two notes were transferred to him by Pavageau.

When the notes became due, Guinault demanded as a condition of extending payment, that a mortgage be given by Rodi, for one of the notes on his Greatmen-street property, in order the better to secure the ■debt. An act of mortgage was accordingly drawn and executed in ¡favor of Guinault.

On expiration of the agreed delay, Guinault commenced executory proceedings for the sale of both properties. The present suit is an opposition to said sales, and also a demand to annul as stated. The ■ground of nullity urged is, that at the time of and long before the execution of said acts, said Rodi was notoriously insane, and to the knowledge ■of all the parties was in a state of hopeless imbecility. Rodi died in 1876, and had been previously interdicted, but was hot interdicted at the time of the acts complained of.

We may as well eliminate here one branch of this case, to wit: that Telative to the nullity of the sale from Pavageau to Rodi, of date August 12th, 1873. Pavageau, the vendor, has not been made a party to this suit, and we cannot, in his absence, pass upon its validity.

As to the mortgage granted in 1874, to Guinault, all necessary parties are before us, and we shall proceed to examine that branch of the case.

There is no dispute about the legal principles involved. If Rodi was at the time of granting this mortgage notoriously insane, and to the knowledge of Guinault in a state of imbecility, the act is null, although Rodi was not then under interdiction, he having been subsequently interdicted. We have, therefore, only a question of fact before us.

The evidence is voluminous, and embraces the testimony of two physicians who had treated Rodi for a series of years, as also that of many of his neighbors and friends.

It is overwhelming to the effect that at the time these acts were passed he was afflicted with a spinal affection and with softening of the brain; that he was incapable of expressing himself, or of understanding what was said to him, having occasional paroxysms of violence. The evidence satisfies us that Guinault, who was a frequent visitor at his house, necessarily knew his condition. In fact, Guinault, in Ms negotiations about these mortgages, never attempted to treat with Rodi. He dealt entirely with Rodi’s wife, who on account of her ¡husband’s condition, undertook to manage his affairs. But she had by taw no such authority, if he was insane, admitting even that she held his power of attorney. If he could not act himself, he could not authorize her to act. The testimony relied upon by defendant is his own and that of the two notaries who passed the acts. This evidence is not satisfactory, and is wholly insufficient to meet the mass of counter-proof produced by plaintiff. The judge below, who heard and saw the witnesses, was convinced of the notorious insanity and imbecility of Eodi, and so are we.

The act of mortgage granted by Bodi to Guinault, of date September 7th, 1874, is therefore invalid. The judgment appealed from in that, regard should be affirmed; but in so far as relates to the sale from Pavageau to Bodi, of date 12th August, 1873, it must be reversed as m ease of nonsuit.

It is therefore ordered, adjudged, and decreed that the judgment, annulling the act of mortgage from Ant. Bodi to Jas. P. Guinault, passed before O. V. Foulon, notary, on September 7th, 1874, be and the-same is hereby affirmed, and that in so far as said judgment annuls-the act of sale from B. Pavageau to Ant. Bodi, passed before W. H. Seymour, on 12th August, 1878, the same is reversed and plaintiff’s demand in that regard dismissed as of nonsuit.

It is further decreed that plaintiff pay costs of this appeal, and defendant those of the court below.


text:
    No. 7076.
    Wang & Cottam vs. Martin Finnerty et al.
    where a nominal contract oí sale is attacked as simulated, the nominal vendee, who sets up in his answer that the purchase was made for a “ good and sufficient consideration,” lias a right to show the real nature of the contract. And if he proves that the pretended sale-covered an actual contract to secure the payment of a just debt, the actual contract will he enforced.
    The action to annul a sale ou the ground of simulation is not prescribed in one year.
    A creditor of a vendor may sue to annul a simulated sale although it was made before the origin of bis claim. The fact that a pretended sale may bo good as a contract of security-does not prevent it from being simulated, as a sale.

    A PPEAL from the Fourth District Oourt, parish of Orleans. J. Houston „

      Braughn, Back & Dinkelspiel for plaintiffs and appellees.

      Edward Phillips for defendant and appellant.
    Braughn, Buck & Dinkelspiel, for plaintiffs and appellees, contended r
    First — That actions to annul on the ground of simulation are not prescribed by one year. Hennen’s Dig., vol. ii. p. 1213, No. 9.
    Second — That a future creditor may attack a simulated sale, and may seize at once without the necessity of resorting to the revocatory-action. See 15 A. 177.
    Third — Where a defendant sets up in his answer that a pretended sale made by Mm was a real sale he will be estopped from showing that pretended sale was a contract of pledge. Bender vs. Belknap, 23 A. 764; 26 A. 631.
    Edward Phillips, contra, contended:
    First — That the, contract is real, and violates no law. That it is valid, even if its nominal consideration was not the real one, provided another lawful consideration be proved. See 12 A. 529; 14 A. 563; 28 A. 29; 29 A. 161; 30 A. 966.
    Second — That a creditor cannot annul a contract made by his debtor before his debt accrued. See 4 L. 141; 5 L. 124; 12 L. 197; 11 Bob. 493; 2 A. 168; 6 A. .87; 26 A; 711; 30 A. 1136.
   The opinion of the court was delivered by

White, J.

The plaintiffs having obtained judgment on the 28th of April, 1876, against John Mannion and Oliver Ellsworth, commenced in March, 1877, this action against M. Finnerty to have declared a fraudulent simulation a sale of real estate made by Mannion to Finnerty, on the 7th of January, 1875. The defendants answered by a general denial and by specially pleading that the sale was valid and made for -a sufficient consideration. The lower court decreed the sale simulated. Finnerty appeals.

There is conflict in the testimony, but we think after an attentive examination that it proves that although the sale was not intended by the parties as a real sale, it was, nevertheless, intended to be and was a real contract to secure a sum loaned by Finnerty, as also future loans or expenses to be by him incurred. In other words, that Mannion at the time of the sale was indebted to Finnerty in the sum of six hundred dollars, evidenced by two notes for three hundred dollars each, payable on demand, and bearing eight per cent per annum interest, dated the one the 10th November, 1874, the other December 15,1874. That desirous of further loans, it was agreed between the parties that a sale should be made to Finnerty not only to secure the debt due him but any further loan he might make; and that on payment of the sum due, as well as all amounts disbursed by Finnerty on account of the property, which was unimproved, a retrocession was by him to be made. That under the sale Finnerty went into possession of the property, and subsequently advanced, on February 17, 1875, $200; on June 28th, 1875, $300; and at various other dates small amounts, aggregating $35, the two first items having been evidenced by demand-notes bearing interest from date until paid. That besides these amounts, Finnerty paid taxes 'and other expenses, amounting to $131 50. The lower court disregarded the proof that the contract was intended to be a security, as it ruled that Einnerty having averred in Ms answer that the sale was real, could not be heard to show its unreality by proving that it was not a sale, but an innominate contract to secure loans made and to be made. In this we think it erred. The answer averred that the purchase was made for a “ good and sufficient consideration,” not that the consideration named in the act was the real one. Under these circumstances we think the defendant had a right to show, as he did, the real nature of the contract. This court has often held that where a contract was attacked as simulated, it was competent to prove that although the form’ of the contract was unreal,, the unsubstantial form covered a real and bona fide agreement, and where such proof established that a pretended sale covered an actual contract to secure the payment of a just debt, the valid contract would be enforced. Parmer vs. Mangham, 31 An. 348, and authorities there cited. The defendant filed a plea of prescription, that of one year, which he insists on, and he moreover contends that as the sale to Einnerty was made before the plaintiffs’ claim accrued, they cannot complain. It is elementary that the prescription of one year, good as to the revocatory, is not so as to the action seeking to unmask a simulation. We have held, in conformity to previous adjudications, that a creditor may uncover an unreal and simulated contract, although made before the origin of his claim. Testart vs. Belot, not yet reported. It is urged that, as the proof shows the contract to have been real, it is removed from the reach of the foregoing reasons. The proposition begs the whole question, for the sale is not shown to be real, but simulated as a sale, although not so as a security. Dispelling the shadow created by the fictitious contract, we are in the presence of an actual and valid agreement, which, although innominate, it would be against good conscience to disregard, and to enforce which we must conform our decree as near as possible to the terms of the contract.

It is therefore ordered, adjudged, and decreed that the judgment below be reversed; and proceeding to render such judgment as should have been rendered below, it is ordered, adjudged, and decreed that the property mentioned in plaintiffs’ petition be decreed to be that of John Mannion, subject, however, to the payment to Martin Einnerty of the sum of twelve hundred and sixty-six 50-100 dollars, with interest at eight per cent on the amount hereinafter specified. That said property be decreed subject to plaintiffs’ execution, but that from the proceeds said Finnerty be paid by preference the aforementioned sum with the following interest: Eight per cent on $300 from November 10th, 1874, until paid¿ on $300 from December 15th, 1874; on $200 from February 17th, 1875; and on $300 from June 28,1875. The costs below to be borne by the defendants ; those of the appeal by the plaintiffs.

Rehearing refused.


author: Manning, C. J. Spencer, J.

text:
    No. 7129.
    Succession of Henry J. Forstall.
    An appeal will lie from a judgment liomologating tlie proceedings of a family meeting recommending a compromise relating to tlie interests of a minor.
    In reviewing a judgment of a lo-wer court this Court 'will consider no record’, document, or act, "which was not in evidence before that court "when its judgment was rendered.
    This Court will not inquire into the effect of a judgment as to those not parties to the proceedings leading up to the judgment.
    The homologation of the proceedings of a family meeting ratifying a compromise involving the interests of a minor, will be set aside on appeal, when it appears that the lower court, at the date of the homologation, had no evidence before it going to show whether the compromise would injure or benefit the minor.
    PPEAL irom the Second District Court, parish of Orleans. Tissot, J.

      Henry Denis and St. Maurice Berault for executor et al., appellees.

      H. Howard Farrar for M. E. Forstall, appellant.
    E. H. Farrar, for M. E. Forstall, appellant, contended :
    That “ the testimony of witnesses in causes before the courts of probate shall be taken in writing and annexed to the record, and a list shall be made of such documents as are produced by the parties, and are not annexed to the record, that they may be read on the appeal.” This provision of law has always been held to be imperative. Polk vs. Childers, 4 An. 500; Tompkins vs. Benjamin, 16 L. 200 ; Graham vs. Graham, lb. 203; Reihl vs. Martin, 29 A. 17.
    Second — That the judgment of a probate court homologating the proceedings of a family meeting recommending a compromise in which a minor’s interests are involved, with no evidence before the court showing the reasons which governed the action of the family meeting,' is not a valid judgment.
    Henry Denis and St. M. Berault, for executor et al., appellees, contended :
    First — That we are no parties to the probate proceedings had by the tutrix, and, therefore, that we are third persons in this case, and cannot be made appellees. Bouttó vs. Boutce, 30 An. 117; Succession of Tyson, 21 An. 117.
    Second — That the probate court and family meeting can do, by ratification, that which they could do by- original act. Charpaux vs. Bel-locq, 31 An. 167.
    Third — That, if the probate judge is satisfied with the advice of the family meeting, when the undertutor concurs with them, and there is no issue before the court, he may legally rest his judicial action upon that advice, without examining himself the merits of the proposed transaction. C. C. art. 353; Code of 1808, art. 65; Lallane’s Heirs vs. Moreau, 13 La. 432.
    Fourth — That, as third persons, we must be protected by the decree of the probate court, whether the same is rendered upon sufficient evidence or not, and whether it can, after the majority of the minor, be or not reversed on appeal. Lallane’s Heirs vs. Moreau, 13 La. ■432; Ehodes vs. Union Bank, 7 Eob. 63; Succession of Hickman, 13 An. 364; Graham, tutrix, vs. Hester, 15 An. 148; Groux vs. Abat, 7 La. 33; Wisdom vs. Buckner, 31 A. 58, and cases therein cited.
   The opinion of the court on the motion to dismiss, was delivered by Manning, C. J., and on the merits by Spencer, J.

On Motion to Dismiss.

Manning, C. J.

A compromise or arrangement was made by the tutrix of the appellant of matters affecting her interest in the succession of her grandfather which was ratified by a family meeting and a judgment of homologation entered thereon. Marie Forstall, the minor, has now attained majority, and brings up these proceedings for our revision by this appeal."

The other members of the family move to dismiss the appeal on the grounds that an appeal does not lie from this judgment of homolo-gation because the minor is concluded by the deliberations of the family meeting, and the judgment ratifying them, and 2dly because these proceedings are assimilated to that of a suit wherein there was a judgment confessed.

These grounds are not tenable. It may be, that upon a judicial examination of these proceedings, it will be found that the appellant is ■concluded, but she certainly has the right to have that judicial examination made, and she cannot be turned out of court upon a mere motion to dismiss. In a former case it was said by this court, The power of the District Court to order a family meeting and to approve a transaction or compromise relating to the interests of minors, recommended by such meeting, may well be inquired into when the whole case is .before the court.” Freret vs. Marigny, 8 La. 503.

In a case involving the same principle, reported in the Journal du Talais for 1858, p. 178, the court say, “ attendu que le jugement qui statue sur une demande en homologation d’une transaction dans laquelle un mineur est interressó est un veritable jugement, statuant quelquefois sur des intéréts d’une grande importance;, qu’il est impossible de n’ad-mettre en ce cas qu’un seul degró de juridiction, et de decider qu’il ne peut pas étre attaqué par la voie de l’appel par la partie qui n’a pas la droit de prendre celle de l’opposition; attendu que les conclusions prises par le tuteur en premiere instance ne peuvent l’empécher d’appeler d’un jugement qui nuit aux intéréts clu mineur, attendu que la demande ■en homologation de la transaction devait étre portée devant le tribunal de premiere instance, aux termes de l’art. 467 O. N., quoiqu’elle portát sur une instance pendante devant la cour; que les intéréts du mineur ne peuvent pas en souffrir puis qu’il a toujours le droit d’attaquer par la voie de l’appel un jugement d’homologation nuisant aux intéréts du mineur,” etc., and then the proceedings of the family meeting are examined and the judgment of homologation reversed.

We know of no precedent for the dismissal of an appeal such as this upon grounds similar to those urged here.

The motion to dismiss is denied.

On the Mehits.

Spencer, J.

This appeal is taken by Marie Emma Eorstall, an emancipated minor, from a judgment and decree homologating the deliberations of a family meeting and ratifying a compromise made on her behalf by her mother and natural tutrix.

The minor was the grand daughter of the late Edmond J. Eorstall, and by representation of her father, one of his heirs.

In February, 1877, the tutrix presented a petition to the Second District Court of Orleans, wherein she represents :

“ That her said ward is an heir, by representation of said Henry J. Forstall, of her deceased grandfather, Edmond J. Eorstall; that the succession of said Edmond J. Eorstall being involved in expensive litigation and threatened with a protracted legal contest, it was deemed by the heirs of Edmond J. Eorstall to be to the interest of all parties to effect a compromise: That accordingly an act of compromise, a copy of which is filed in No. 34,360 of this Court was executed before Theodore Guyol, notary, on the 27th of November, 1876, in which petitioner appeared and acted in her said capacity of natural tutrix, representing her said minor daughter.

“ Petitioner now prays that a family meeting be convened before Theodore Guyol, notary, for the purpose of ratifying or rejecting said compromise, and that J. J. A. Plauche, undertutor, be notified to attend to the same.”

The judge ordered the convocation of the family meeting to be held before Guyol, notary. The meeting was held, and the procés verbal thereof recites as follows :

“And the said family meeting having thus taken full cognizance of the said petition and order of court, and also of the said act of compromise which I, the said notary, carefully read and explained to them, and having consulted together and deliberated on the subject matter of the petition, unanimously declared and advised that the said compromise be approved and ratified, the interest of the said minor being in their opinion promoted thereby.”

On 21st February, 1877, the tutrix filed a petition for homologation of these deliberations, the procés verbal of which she annexed.

On same day the judge homologated the proceedings, and ratified and confirmed the compromise.

Thjs is the decree appealed from and now before us on a statement of facts made by the judge, there having been no note of evidence or list of documents taken on hearing the application for homologation. The statement of facts by the judge is as follows :

“That, when the judgment rendered on the 21st of February, 1877, was rendered, as the record in this case shows, there was no evidence before me, except the copy of the proceedings of the family meeting, approved and homologated by said judgment. The act of compromise, referred to in the proceedings, was never before me, and was never filed, that I am aware of, in this case, until made part of the petition of appeal this day filed.” New Orleans, February 21,1878.

Ve have already decided in this case, on motion to dismiss, that an appeal lies from the judgment in question. The correctness of that judgment must be tested by and on the record and proof presented to the court below. Where it appears affirmatively that a document found in the record was not in evidence before, or considered by, the lower judge, this court certainly cannot consider it, though invited by counsel to do so. That would be trying here another and different case from that tried below. It would be an assumption of original jurisdiction by this court. We cannot therefore consider the act of compromise which appellant has annexed to her petition of appeal.

Nor is it necessary for us to inquire into the effect of the decree appealed from upon the rights of third persons, not parties to the judicial proceeding in question. That will be a question for future consideration, when third persons are sought to be disturbed. The sole question before us is, did the judge a quo correctly decide when, upon the record and proof before him, he homologated and confirmed the compromise mentioned ?

We have seen that there was nothing before him showing the nature, extent, or value of the minor’s rights, or in what way they were involved or affected by the alleged litigation among the heirs of Forstall, or indicating how, or why, or in what way, the minor would be benefited by the compromise. The confirmation of the compromise was a judicial act. It involved the exercise of judgment, and should rest upon facts satisfying the judge of the justice of the demand. The judge cannot act without the advice of the family meeting; but unless it appears that that advice is based upon good reasons, it is his duty to refuse the authority or confirmation. He cannot legally substitute the judgment of a family meeting for his own. The family meeting acts simply in an advisory capacity. It is the fiat of the judge which gives the authority or the confirmation.

Upon the record and showing before him, the judge should have refused the decree of homologation and confirmation.

It is therefore ordered, adjudged, and decreed that the order and decree appealed from is annulled and reversed, and the application for homologation and confirmation of the compromise mentioned is rejected at the costs of tutrix in both courts.