text:
    No. 1381.
    John P. Snelling et al. vs. Elot Joffrion, President Police Jury, et als.
    Police juries have no authority to create evidences of debt, sueli as promissory notes, for improvements to be made, payable out of a future fund to be created, without express legislative action. The police jury of Avoyelles parish passed an ordinance to build two bridges, to cost'$27,300, and, to pay for the same, created a fund of $2730 of each year, from the ten-mill tax of the parish, to run for ten years from 1st February, 1890. Promissory notes were authorized to bo issued to the contractor for this amount, ten in number, payable 1st February eac year. A contract was made in accordance with this ordinance with the King Iron Bridge Company, of Cleveland, O.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Blackman, J.

      Oullom & Cappel for Plaintiffs and Appellees: ■
    Police juries are political corporations whose powers are especially defined by the Legislature, and they can legally exercise no other powers than those delegated to them.

      Por all purposes for which they are authorized by law to create debts, they are authorized to levy and collect a tax for pay ing same, but without special grant of power from the Legislature they can neither issue nor put in circulation instruments of any kind. 26 An., p. 59, Act No. 30 extra session of 1877.
    Tax payers have the right to prevent an illegal appropriation of public funds. 39 An.
    The value of the contract enjoined gives jurisdiction. See 39 An. 107, 770.
    It is only where moneyed judgments are enjoined that damages can follow. 33 An. 410.

      E. J. Joffrion, J. A. Lemoine and Thorpe & Peterman for Defendants and Appellants:
    A foreign corporation having no resident agent in the State authorized to receive service of process, can not be cited through a curator ad hoc, in a personal action where no property in the State belonging to the corporation is brought under the control of the court and subjected to its disposition by process adapted to-tliat purpose. 35 An. 1185.
    A court will not adjudicate directly upon a person’s rights without having him either actually or constructively before it, and therefore'all who are materially interested, either legally or beneficially, in the subject matter of a suit must be made parties to it. 6 S. R. 251; 38 An. 696; 10 S. C. R. 422.
    Where a police jury binds itself by ordinance to set apart from the ordinary revenues of the parish an appropriation sufficient to cover the provisions of a contract made with a bridge company for the building of bridges, and the obligation of the parish for future disbursements in favor of the company is conditioned upon the performance by the latter of its part of the contract, no debt is thereby created within the meaning of See. 2448, Revised Statutes. New Orleans Gaslight Company vs. The City of New Orleans, not yet reported, 7 S. R. 11.
    A substantial compliance with .Act of 1867 (Sec. 1987 Seay’s Rev. Stats.), empowering police juries to let out contracts for making bridges, provided “ the amount of the contract shall not exceed the amount of taxes levied for that purpose,” is shown when it appears that a sum sufficient to meet the contract is appropriated from the amount of taxes levied for general purposes.
    The municipal authorities having constitutional power to levy a tax not exceeding ten mills on the dollar, the appropriation by them, for legal municipal purposes, of the whole or any portion of the funds derived from taxation within that limit, is the exercise of a legislative discretion that is not sub ject to judicial revision or control.
    An injunction issued at the instance of resident tax payers against municipal corporations will not be sustained when the proof shows that the threatened acts of the corporation will not increase the plaintiffs’ burden of taxation or work them any other equivalent injury. 39 An. 107; 101 U. S., 691; Dillon Man. Corp., Sec. 922.
    Notes and bonds issued by municipal authorities, although negotiable in form and in the hands of innocent third persons, are not subject to the rules of commercial law, and form no valid debt of the municipality, unless the holder can prove that they were issued in accordance with law; and he is held to a full knowledge of the constitutional provisions and statutory restrictions bearing upon the authority which issued them. 33 An. 34; 26 An.-; 23 An. 232, 251; 24 An. 457.
    Although the mode of payment of a extract executed by a municipal corporation may be unauthorized and ultra vires, yet the contract itself is not void on that account. 6 S. It.. 689.
   The opinion of the court was delivered by

McEnery, J.

This suit was brought by seven resident tax payers ■of the parish of Avoyelles for themselves and others similarly situated, for the annulment of the ordinance and contract made thereunder between the president of the police jury of said parish and the King Iron Bridge Manufacturing Company, of Cleveland, Ohio.

The tax payers aver that they have an interest to an amount of over $2000 in the annulment of the contract. This is sufficient to give jurisdiction.

The bridge company was made a party defendant through the appointment of a curator ad hoc, upon whom service of citation was made.

The defendant company pleaded an exception that, being a foreign corporation, having no resident agent in this State authorized to receive service of process, it can not be cited through a curator ad hoc in a personal action where no property in the State belonging to the corporation is brought under the control of the court and subjected to its disposition by process adapted to this purpose.

There can be no question or doubt as to the legal proposition announced in the exception. Hackness vs. Hyde, 99 U. S. 478.

There is no effort made in this suit to obtain a judgment against the defendants. They have a property interest in the contract, which is under the control of the court, and which is sufficient to .authorize the substituted service.

Independent, however, of this, the suit has for its object the annulment of an ordinance of the police jury authorizing a contract to be executed in the parish of Avoyelles.

This police legislation is subject to review in a proper proceeding by the tax payer. It is mot an executed contract under which rights have been acquired. It is to prevent the execution of an ille - gal contract. It is really not necessary for the bridge company to be made a party, to determine whether or not the police jury has exceeded its powers and authorized an unlawful contract. If illegal, ■the bridge company can acquire no rights under the ordinance, and it can suffer no injury in the prevention of the entering into the making of an illegal and unlawful contract.

The ordinance authorizes the president of the police jury to contract with the bridge company for the putting up of several bridges in the parish at a cost of $27,300, to be divided in ten equal instalments of $2730 each, with 7 per cent, interest from date, to be evidenced by promissory notes, payable to the order of said bridge ■company, maturing respectively on the 1st day of February of the years 1890 to 1899, inclusive.

The contract made by the president of the police jury with the bridge company was in accordance with said ordinance; the notes were to be issued on the completion of the bridges when accepted, on the 1st of January, 1890.

The police juries have the undoubted authority to construct bridges, repair the same, and to open roads and to keep the same in order. But they have no power to contract an indebtedness for this purpose in advance, and to issue promissory notes or warrants to cover funds, which may be set aside for this purpose in future taxation without express authority from the supreme political power of the State.

The fund must be actually in the parish treasury before any warrant can issue against it. Secs. 1 and 5, Act 30 of 1877.

We do not mean to say that police juries can not contract for improvements which they are authorized to make, to be paid out of the taxes which they are authorized to levy for parochial expenses, and which are set apart for this special improvement, but they can not issue any promissory note, draft or warrant in advance to cover this amount which may go into the treasury. It must be there before the warrant issues, unless by legislative authority they are authorized to issue the same in advance. Sterling vs. Parish of West Feliciana, 26 An. 59.

We are referred to the case of N. O. Gas Light Co. vs. City of New Orleans, 41 An. 91.

The contract to light the city was made under legislative authority granted in Section 7 of the city’s charter.

In this ease this court said in relation to the contract: We know of no other mode, and we have been referred to none. It is useless to refer to, or to analyze the purpose of distinguishing the difference existing in the decisions quoted by plaintiffs’ counsel on the points of the case. They refer to bonds, notes and other obligations, evidences of indebtedness, not part, but clearly outside, of annual expenditures of city revenues for necessary cost of municipal government. They can have no possible application to a case involving a contract for lighting a city and the mode for paying for the same.”

There was ample power in the city under its charter to make the contract. We have been referred to no law which authorizes the parish of Avoyelles to make the assailed contract. Hence the case is not applicable to the present controversy.

The police jury of Avoyelles has undoubtedly the power to contract for the building of a bridge, and so long as the police jury confines itself within its powers, courts will not interfere with its discretion so as to dictate which particular contract should or should not be made. Gas Light Company vs. New Orleans, 41 An., not yet reported; Conery vs. Water Works Co., 41 An. 910.

In the instant case there is no attempt made by the seven tax payers to interfere with the discretion of the police jury in the exercise of the powers, vested in it by legislative grant, as to bridge building. The object and purpose of the suit is to prevent the issuing of evidences of indebtedness against a fund not yet in the parish treasury. This is prohibited by express legislative authority. 23 An. 232; 26 An. 59; Act No. 30 of 1877, Sec. 5.

Judgment affirmed.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 1385.
    A. C. Townsend vs. T. S. Fontenot, Sheriff, et als.
    The following statement in a judgment will operate a stay of execution: "The attorney of plaintiff in this suit declares lie has been instructel not to seize or sell said property before the end of the year.” Yagui and uncertain allegations of damages, without specification or detail, do not authorize proof. A seizing creditor will not be mulcted in exemplary damages except on proof of malice, intent to wrong, or injury and entire want of probable cause. Parol testimony can not be received to vary, contradict or explain a judgment. Attorney’s fees are allowed as damages when the injunction is dissolved, not when it is maintained, particularly in the absence of malice and probable cause.

      A PPEAL from the Thirteenth District Court, Parish of St. Landry. J- *- Lewis, J.

      Henry L. Garland and Estilette & Dupré for Plaintiffs and Appellees:
    A judgment is to be interpreted according- to the natural and legal imports of the terms. 12 An. 156.
    Where the terms express or imply a stay of execution, the creditor can not disregard them and issue execution.
    A premature execution and seizure of his property entitle the debtor to damages.
    A tender by a defendant is an acknowledgment of his indebtedness.
    A debtor can not bo released by the tender of the purchase price, with interest, where a litigious claim has been bought at a judicial sale. 6 An. 464.

      Kennett Baillio for Defendants and Appellants :
    1. A stay of execution is in effect a contract, requiring consent of both parties.
    2. Contracts, in cases of doubt, receive interpretation from the construction put upon them by the parties. C. C. 1956.
    3. Isolated words or phrases in a judgment will not control its decretal force. 14 L. 445 ; 6 R. 208; 10 An. 352.
    4. * * * If an execution issues prematurely, the party injured can not demand to have an injunction restraining it perpetuated, if his adversary has a right to obtain another execution as soon as the injunction against the former is perpetuated. All that he can,expect is to bo relieved from the payment of costs and damages, as he has hud the benefit of all the delay he was entitled to. 6 R. 17.
    5. The injunction ivas dissolved, although the party who had obtained it was, perhaps, entitled to have it sustained, because we were of opinion the remedy was worse than the evil, as anew seizure must have been immediately issued. For this purpose, and for this purpose alone, the injunctions was not sustained. We have often refused to dissolve injunctions when we thought the party was immediately entitled to a new one, On the dissolution of the former, and in order to avoid expense, delay and trouble.
    In the present case the injunction was dissolved, although it was properly obtained. In such cases the party should not bo mulcted in damages, because the dissolution takes place for the sole purpose of avoiding unnecessary costs and delay in bringing this suit to a conclusion, and this party benefited thereby, can not expect ns to give damages; for if we were compelled to do so, we would sustain the injunction, and require him to begin anew. 15 L. 187.
    6. Courts adjudicate rights up to the day of trial. 5 L. 225.
    7. Unless covered by amendment seasonably made, no damages occurring after a writ of injunction is sued out are admissible. 35 An. 465, 322.
    8. A seizing creditor will not be mulcted in exemplary damages except on proof of malice, intent to wrong or injure, and entire want of probable cause. 33 An. 372.
    9. In all other eases only actual damages are allowable. Authorities.
    10. Good faith is always presumed.
    11. Plaintiffs in injunction can not tax his adversary with counsel fees as an elc-. ment of damages. I-Ien., p. 677, No. 8.
    12. Cases sounding in damages must be tried before a jury. C. P. 313.

      13. A father can not recover by suit in his own name and for his own account for worru of mind, trouble, vexation and annoyance to his mother, major and minor children and sister.
    11. In damage suits plaintiff should malve his ease olear and free from doubt. What he leaves doubtful can not be corrected by the court.
    30. Vague and uncertain allegations of damage without any specification or detail do not authorize proof. Hen. Dig'., p. 1111, No. 1, and cases cited; lion. Dig., p. 1153, No. 5, and oases cited.
   The opinion of the court was delivered by

McEnery, J.

This is a suit to restrain the execution of a judgment of the District Court of the parish of St. Landry in a suit entitled J. U. Payne & Co. vs. A. C. Townsend.

The ground for the injunction is that the execution was prematurely issued, as the judgment creditors had granted a stay of execution until the 1st day of January, 1890. Damages for the illegal seizure are claimed to the amount of $9000 against the judgment creditors, and the Sheriff in solido, divided as follows:

“For actual damages sustained by your petitioner by the wrongful seizure in the sum of $5000.

“ For vexation of mind, trouble and annoyance to himself, and family, and time lost by him, in the sum of $2000.

“For punitory and exemplary damages in the sum of $1000. For attorney’s fees in the sum of $1000.”

The defendants pleaded a general denial, and specially denied that there was any stay of execution granted as alleged in plaintiff’s petition, and that the statement in the judgment that no execution would issue until the end of the year was inserted merely ex gratia, and formed no part of the evidence on which the court acted in-rendering the judgment. They prayed for damages, but have abandoned the demand in this court.

The judge rejected the demand of plaintiff for actual damages, as the allegations in the petition were too vague and indefinite to admit of proof, and allowed plaintiff for exemplary and punitory damages $500, and perpetuated the injunction. The defendants have ap - pealed.

Henry M. Payne sold to A. C. Townsend the undivided half of the Anchorage plantation, part cash and the balance on terms of credit, for which notes were executed by Townsend and the usual mortgage and vendor’s privilege retained on the plantation, to secure the deferred payments.

The last two of the notes were acquired by Jacob U. Payne & Co., and they brought suit against Townsend on the first maturity of the notes to enforce payment, with recognition of the mortgage and vendor’s privilege. The defendant Townsend made no appearance in said suit. When the default was made final and judgment rendered, there was inserted and incorporated in the judgment the following statement:

“ The attorney of plaintiff in this suit declares that he has been instructed not to seize or sell said property before the end of the year.”

The defendants contend that this statement did not operate a stay of execution, that it was inserted ex gratia, and, as incorporated in the judgment, is meaningless.

On this point the defendants offered in evidence the testimony of J. U. Payne, Thomas H. Lewis and R. W. Poster, to explain the insertion of said statement in the judgment. It was properly excluded by the District Judge, as no parol testimony can be received to vary, contradict, explain or interpret a judgment. The defendants’ counsel, however, states that such was not the intention of introducing the evidence, and its effects would not be to contradict or vary said judgment, but to show that the defendants were not controlled by any vindictive or malicious motives in executing the judgment. But in this we think he was mistaken, and the District Judge viewed the effects of the rejected testimony in its proper bearing.

It is immaterial in consideration of this question how the statement got in the judgment. It was prepared and written by plaintiffs’ counsel, and must have been placed there by plaintiffs’ instructions. It is sufficient to show that it was there, and that it formed a part of the judgment, as binding and authoritative as any other recital in it.

The plaintiffs in the judgment had no right to issue execution on the judgment before the time for the stay of execution had expired. The defendant had a right to expect that the seizure of the plantation would be deferred.

The only question that remains to be determined is as to the amount of damages to be awarded plaintiff in injunction.

The plantation was seized and sold on the last note on December 28, 1889. The plaintiff in injunction had but a short time in any event to remain on the place, as he was totally unprepared to meet the payments on the plantation.

The recital of the stay of execution in the judgment inured to the benefit of the judgment debtor. There is no evidence in the record that it was the result of any concession on the part of the judgment debtor. From the peculiar wording of the language in the sentences granting the stay, it is evident that it was an indulgence on the part of the judgment creditor, which they undoubtedly believed they could withdraw. This view must also have been entertained by the court official who issued the ft. fa., or he would not have issued it in the face of a positive decree granting a stay of execution.

From the circumstances of the case, the fact of the issuing of the execution by the clerk, and the failure of the judgment creditors to seize the horses, mules and agricultural implements mentioned in the act of mortgage, we are of the opinion that there was not a wanton disregard of the rights of the judgment debtor.

There is in the record no proof of malice, wilful intent to injure or an absence of probable cause.

We do not think that the defendant is entitled to exemplary and punitory damages. The allegations in the petition for actual damages are too uncertain and inadequate to admit of proof.

The plaintiff in injunction is entitled to all necessary expenses for maintaining his possession of the place up to the time of its seizure and sale, when it passed from his possession and control. These comprise the court costs and attorney’s fees.

The demand for attorney fees can not be allowed. Such fees are allowed as damages when the injunction is dissolved; never when it is maintained; particularly in the absence of malice and probable cause. Dyke vs. Dyer, 14 An. 701; Ib., 738; 17 L. 263; 4 An. 304; 12 An. 239; 20 An. 571; 28 An. 729.

It is therefore ordered and decreed that the judgment appealed from be amended by striking therefrom the allowance for damages, and, as thus amended, it be affirmed.


author: Bermudez, C. J.

text:
    No. 1379.
    Succession of Sylvester Romero.
    The discretion oí aDistrict Judge exercised in tlie appointment of a succession administrator, as a rule, willnot be lightly interfered with, particularly where it appears that there arc minors concerned; that the heirs of age are from different marriages; tliafc there are debts due by and to the succession; that the heirs of age and the widow do not agree, and that there exists property which must be under the control of one person for its preservation, and notes, the payment of which may have to be judicially enforced. In such a case the preference should be given to the heir of age present, over the widow, although she may be entitled to the usufruct of the share of the deceased in the community and be the tutrix of the minor heirs, the issue of her marriage with the deceased.
    PPEAL from the Twenty-first District Court, Parish of Iberia. Mouton, J.

      L. O. Hacker for Plaintiff and Appellee:
    1. Where it appears that there are debts, and some of the heirs are minors and some of age, a succession should be provided with an administrator. 2 An. 412; 4 An. 561; 10 An. 534; 6 L. 212.
    2. A tutor may administer a succession falling to his wards, when there are no debts and all the heirs are of age and present, or when there are debts, and the the creditors demand it, an administrator should be appointed. C. 0.336, 337; 12 R. 41; 6L. 212.
    3. Act 25 of March, 1844, giving the usufruct to the surviving spouse is not inconsistent with the law requiring the appointmentof administrators; andthe beneficiary heir of age may claim the preference, 5 An. 27.
    4. Articles 336 and 337> C. Q., providing for the administration by the tutor of the minor’s estate, refers to successions where all heirs are minors, but it does not give the tutor the right of administration over an estate where most of the heirs are of age and demand an administrator. 11R. 67.
    5. The law which incapacitates a minor capacitates his tutor in proportion, and he cannot exercise a greater authority Shan his ward could, if he were of age.

      Benoudet, Poster & Broussard:

    1. While the beneficiary heir is preferred as the administrator of an estate, yet his appointment, like all others, depends on whether from the facts, circumstances and conditions of an estate an administration is necessary.
    2. When an estate owes no debts, or trivial ones, which the parties interested are willing and ready to pay, the appointment of an administrator is unnecessary. See. 29 An. 572, Burns vs. Van Moan; 36 An. 702, Succession of Welch; 33 An. 1099 ;3S An. 7l6.¡
    3. When the facts and circumstances in.the record show that the estate owes no debts and that all the property thereof is easily susceptible of a partition, which all interested desire, the application for the administration of the estate will be rejected; in such cases the kny points to the action of partition as the proper and cheaper remedy. See same authorities as above; also 3 An. 502.
    4. The discretion rested in the judge to appoint whether there be'debts or not, is governed by the facts elicited before him; in each case he must decide from the facts shown him whether he can or ought to appoint. If there are no facts why he should appoint, and many circumstances why he should not, then he has no discretion, and must reject the application. See 3 An. 502, Succession of Story.

      5. An administrator has no right or power to partition property of an estate; his-sole duty is to pay the debts and then turn over the residue of the property to those entitled to it. See Manning’s Unreportod Cases, p. 216; Iluey vs. Huey.
    6. From spoliation, useless expense and extravagant outlays in litigation, without cause or necessity, the law protects the property of a succession.
   The opinion of the court was delivered by

Bermudez, C. J.

This is a contest for the administration of the succession of the deceased.

From a judgment appointing one of his sons, by a first marriage, his widow, opponent, appeals.

Sylvester Romero married three times. He leaves eleven children, four from the first marriage, one by the second and six by the third, two of the latter being minors, represented by their mother and tutrix, his third wife, who survived him. ■

The application for the administration was made by Cleveland Romero; but opposed by the widow on two grounds.

1. That there are no debts, or, if any, that the same are insignificant; that she is willing and prepared to pay the same, and that consequently it is unnecessary to entail on-the succession the costs, charges and burden of an administration.

2. That all the property left by the deceased being community, she, as survivor and tutrix, is entitled to retain possession of the same, at least as usufructuary.

Eventually she claims a preference over the applicant.

It sufficiently appears that there exist claims against the estate, as well by some of the children of ¿he first marriage as by other parties, for an amount which it is not easy presently to specify, but which seemingly exceed §1500; that there are debts due the deceased, represented by mortgage notes for more than §2500, which are part of the proceeds of property sold which composed the community existing during the first marriage.

It is also claimed that the property which the opponent asserts to belong to the community between her and the deceased, does not belong to that, but to the two previous communities.

It also appears that the deceased has claims to the possession of certain property acquired by him at tax sales, which is still subject to redemption.

The inventory shows assets, movable and immovable, appraised at over §15,000.

The readiness and ability of the widow to pay has not been proved. The reverse has been established.

It is evident that it is necessary that some fit person be appointed to represent the succession, widow and heirs, not only to take possession and keep the movable property and the notes, but also to assist and vindicate its rights for the collection of the notes, and the recovery of property purchased as stated.

The heirs and the widow do not agree among themselves, and there are two minors who are beneficiary heirs.

The succession is not presently in such a condition that the heirs can -be put in possession and proceed to a judicial partition of its assets, whether in kind or otherwise.

Whatever the rights of the widow be, as usufructuary and as tutrix, they can not be asserted to prevent a liquidation of the succession which, on the contrary, is required first to take place before she can be put in possession in either or both capacities.

She is not entitled to the preference claimed.

The law distinctly provides that, in the choice of an administrator, the preference shall be given to the beneficiary heir of age, and present in the State, over any person. R. O. O. 1042 and 1121.

This view of the matter is justified by precedents. 14 An. 641; 7 R. 24; 6 La. 212; 12 An. 610; 5 An. 27; 35 An. 127; Succession M. O. Gaines, 42 An.-, recently decided.

We think that the District Judge, whom the law vests with great discretion in such matters, not lightly to be interfered with, has properly exercised it in making the appointment complained of.

Judgment affirmed.


text:
    No. 1383.
    Walter C. Flower vs. A. C. Préjean et al.
    The Supreme Court has no jurisdiction oyer a eontrovery in which a plaintiff, alleging himself a judgment creditor for $1200, seeks to annul a transfer of property, made by his debtor, as simulated or fraudulent, with a view to subject it to the payment of his claim.

      APPEAL from the Thirteenth District Court, Parish of St. Landry. Lewis, J.

      Thomas H. Lewis & Son for Plaintiff and Appellee.

      Laurent Dupré and Kenneth Balllio for Defendants and Appellants.
   The opinion of the court was delivered by

Bermudez, C. J.

A motion to dismiss this appeal is made on the •ground that the matter in dispute is less than $2000, and therefore that this court has no jurisdiction ratione materim.

The plaintiff avers himself a judgment creditor of A. C. Prejean for $1204, with interest, and brings this suit to cause to be annulled, ■as simulated or fraudulent, a transfer of property made by the latter to his brother, Anphos Prejean, of certain property, to be subjected to his claim.

The effect of a judgment in favor of a complaining creditor in a revocatory action is to annul the contract assailed in so far as its effects concern him. R. C. C. 1977.

The consequence of such judgment, where the contract annulled is a sale, is to subject the property to the satisfaction of the claim of "the creditor against the vendor.

Beyond this, the title of the vendee is not affected or impaired, ■ and it does not revert to the original vendor. Succession of Schultz, 39 An. 505.

It is settled that, where a creditor for an amount less than the lower limit of the jurisdiction of this court seeks to annul a transfer of property, even where it is made for more than said limit, the matter in dispute is the right of the creditor to subject the property to his claim, and consequently that this court has no jurisdiction. Loeb & Bloom vs. J. Arent, 33 An. 1085.

The doctrine has been affirmed in Fendler vs. Bates, 34 An. 595, and also in State ex rel. Zuberbier vs. Cole, Ib., 1215.

The petitioner in this case asks that the transfer charged against be annulled as simulated or fraudulent, and that the property be subjected to the payment of his judgment.

The jury before which the case was tried returned a verdict in favor of plaintiff, and the court carried it out, decreeing that the sale attached be annulled, and that the property be applied to the payment of plaintiff’s judgment.

It is clear that this court has no jurisdiction in this case over the ■subject matter.

We think proper further to state that we find no order of appeal in this transcript. It may be that one was granted and copied into it, but the index, termed chronological, at the end of the transcript, not being made in alphabetical order, has not enabled us to discover it.

Under the rules of this court, clerks should attach to the transcript forwarded by them an alphabetical index, showing the char•acter of the proceedings and the nature of the documents and evidence adduced, with designation by name.

Had this been done, we might perhaps have found the motion or petition of appeal, if in the transcript, under the appropriate letter.

The absence of an order of appeal could be noticed proprio niotn and justify a dismissal.

It is therefore ordered that the appeal herein be dismissed with ■costs.


author: Watkins, J.

text:
    No. 1389.
    Dennis Long vs. John E. Kee.
    1. Wlien the proprietor of a plantation and stock farm enters into a contract with another as superintendent and manager thereof for an unnamed period of time, and, in lieu of salary, covenants that the latter is to have all the products of the farm and one-half interest in the increase of the stock, etc., the former is entitled to terminate the agreement and retake the possession of his property whenever he becomes satisfied that it is to his interest to do so, and the management of the latter results injuriously to his property; but this right must be exercised reasonably and after due notice and at the beginning of some designated year.
    2, The rights of the superintendent and manager, under such a covenant, are closely assimilated to those of a usufructuary, and, on effecting a settlement of the engagement, the proprietor is entitled to have set apart a number of cattle, , etc., egual to that originally invested by him, at its commencement or afterward and the increase to be found remaining thereafter must be divided.

      APPEAL-from the Twenty-fifth District Court, Parish of Lafayette. Edwards, J.

      Gus. A. Breaux, G. DeBaillon and T. D. Foster for Plaintiff and Appellant:
    1. Long being owner is entitled to have exclusive possession of his property as against his employe. The contract of 1886, between himself and Kee, being simply a hiring of labor, neither a partnership nor a lease. O. C. 2801, 2675; Chaffraix & Agar vs. Price H. Tupper, 29 An. 180; Belden vs. Read & Hunt, 27 An. 103; Miller vs. Chandler, 29 An. 88; Pickerel vs. Kick, 11 An. 278.
    2. Where a party claims damages for the deprivation of the u e and possession of property to which he claims to have been entitled, he is estopped from claiming the return of possession of that property. Cross on Duplicity in Pleadings, p. 60.
    3. Kee having directed all the property sequestered to be so sequestered, as the property of Long, when called on by the sheriff, is now estopped from claiming it, or any part of it, as his.
    4. The evidence upon which he socks to establish ownership or value of any of said property is too vague and uncertain to substantiate the claim with roásonable certainty. In any event he can only claim the return of the property which he caused to be sequestered, even if he proves ownership.
    5. No damages for supposed profits in a speculation which has never taken place,, can be awarded. O. C. 1934, par. 1.; Gobet vs. Mun. No. 1, 11 An. 300; Bohn vs. Oleever, Master, 25 An. 419. Bergen vs. New Orleans, 35 An. 523; Am. and Eng.,. Verbo Damages, No. 2, Contract, p. 21.
    Indemnity is the measure of damages. Arrowsmith vs. Gordon, 3 An. 105; Jlenn., Digest, Obi., 7, (a), 5 B, Sec. 2, No. 17.
    6. Vindictive or punitory damages not granted for breaches of contract.
    7. Where a party has the use of a plantation, and all crops thereon, for the payment of all taxes and real charges, he can not claim pay for repairs and fencing' and buildings erected and used exclusively by him; but they are part of the real charges which he has undertaken to meet, and which accrue to the owner.

      Ghas. D. Gaffery, Jos. A. Ghargois and Julian Mouton for Defendant and Appellee:
    When plaintiff resides out of the State the defendant may reconvene for any cause,, whether it be connected with or incidental to the original demand or not. 32' An. 464; C. P., Art. 375; see Act No. 50, 1886, p. 50.
    Even if the prayer does not ask in plain terms the decree that the allegations of the petition clearly warrant, such omission will not prejudice the petitioner’s, right to recover judgment on the averments of his petition, where they are sufficient to sustain the proper action and decree, and there is aprayer for general relief. 38 An. 912.
    Evidence received without objection by way of recon vention will be considered as if the formal plea had been made. 4 An. 183; 5 An. 184; 9 An. 255; 17 An. 37.
    The presentation of a smaller account or the unaccepted proposals to take less than is due to avoid suit does not bar recovery of the full amount legally established. 19 An. 362; 10 L. 215; 19 L. 11; 6 L. 594.

      'One wlio erects on another’s land valuable improvements is entitled to recover the costs o£ materials and price of workmanship, if the owner of the soil keeps the same. 16 An. 244; 23 An. 138; 2 An. 339; 11R. 225; 32 An. 371-377.
    When the owner of the soil has committed acts of dominion by leasing the property and sues claiming the ownership of said improvements, he thereby elects to keep same and becomes liable for costs of material and price of workmanship. Ibid.
    When plaintiff employs an individual as overseer, and stipulates that he shall receive a portion of the crop as compensation for his services, and on grounds deemed sufficient dismisses him before his time is up. Held, that he is entitled to compensation for the value of his Services up to the time of his discharge, and that in estimating the value reference should be had to the stipulations of the contract; to theprobable amount which the defendant would have received, had there been no violation of the contract and to the probable receipts, of the plaintiff, had he discharged his duty in every respect. 12 An. 662; C. C. 1934.
    Even if the tenant continues in the occupation of .the lease premises after the expiration of the lease without any agreement, still the lease is continued by a tacit reconduction. 18 An. 267; 20 An. 190.
    When malice and want of probable cause, in the violation of a contract or in the issuance of a writ of sequestration, which is dissolved, are established against the plaintiff, defendant is entitled to punitive, exemplary and vindictive damages. 39 An. 18-19.
    Sheriff’s return is only prima/acie evidence of its contents. 16 An. 323.
    In a suit for damages for injury done to the person and property of another, evidence is admissible to prove attorney’s fees as a part of the damages, for dissolving the sequestration. 15 An. 504; 39 An. 672 ; 39 An. 213.
    Evidence admitted without objection should be considered, although objection should be subsequently made during the trial to evidence of similar character sought to be introduced.
    An exception to the right of defendant to reconvene, should be urged in limine.

    A party can not take the chances of a decision in his favor on a voluntary submission of the merits of the cause, and then escape the effect of an adverse judgment upon such a plea. 33 An. 79.
   The opinion, of the court was delivered by

Watkins, J.

The contract which constitutes the principal subject matter of this suit was executed on the 16th and recorded in the parish of Lafayette on the 20th of February, 1886, and its stipulations, in substance, are as follows, viz;

The plaintiff furnished his plantation with all of the improvements and ameliorations thereon, consisting of barns, cabins, fences, etc.; one pulverizer, two mowing machines, one self-binder machine, one road masher, one sulky plow, one sugar mill,'three mules, worth $375 — Fly, Dolly and Queen; also live stock, consisting in cattle, sheep, etc., worth $4165; four bulls and thirteen head of cattle from Kentucky not being included in the agreement.

The defendant furnished his time and undivided attention to the-supervision and management of said plantation, and to the care and protection of the stock.

Then follows the consideration of the agreement, to-wit:

“ In consideration whereof said Kee is allowed, in lieu of salary, the profit arising from the cultivation of the yearly crops, and it is, agreed that Kee shall have one-half interest in the increase in the stock, as hereinabove mentioned, in further consideration of his. services, Kee binding and obligating himself to pay and satisfy all taxes and real charges due and arising and becoming due during the existence of this contract and agreement. It being further understood that this agreement is not intended to confer upon Kee any authority except as supervisor and manager of the property, without any right-to sell or dispose of anything, and with only a half interest in the-increase of the stock.”

This agreement fixes no period for its duration, and, although styled a partnership, is a contract of hire of labor, the laborer — the defendant — to receive a “ half interest in the increase in the stock ”' and “ the profit of the cultivation of the yearly crops ” “in lieu of' salary.”

This agreement remained in force until the latter part of December-of 1889, when the plaintiff sought to terminate it and lease the plantation to another, and thereupon a difference arose between the contracting parties. This suit ensued, and the real and personal, effects claimed by Long were sequestered, and a demand for damages against Kee was urged; and Kee in turn denied the plaintiff’s, right to possession and re-entry upon the premises, claimed the ownership of .much of the personal property and stock that had been seized, and claimed a large amount of damages, vindictive and compensatory.

In effect, the judgment was as follows, viz :

1. That the sequestration be dissolved, and all the property sequestered returned to the defendant, including the plantation and the-, improvements thereon, the cattle and the farming implements mentioned in the contract of 1886, excepting one-half of the increase of' the common cattle, the fence, buildings, stock, mules, horses, blacksmith’s shop and tools, oats, rice straw, sweet potatoes, cow peas, bell, salt, sulphur, nails, skiff, chickens, geese, rice, hen house and three foot boards, which are decreed to belong to the defendant;. the same to be used and possessed by the defendant, as provided in the agreement of February, 1886, Until the 1st of January, 1891, when the same shall be delivered to the plaintiff as the owner or accounted for, and that the defendant’s right to claim one-half of the increase of the cattle, according to said contract of 1886 be recognized.

2. It condemns the plaintiff to restore to the defendant, as owner, the property excepted in the preceding paragraph, or pay the value thereof, which is fixed at $3682.50.

•3. It further orders that plaintiff restore all other property of the defendant which remains on the premises, although not actually sequestered.

4. It recognizes defendant’s ownership of two houses and two cabins, and twenty-five arpents of wire fence, and entitles him to remove same on or before the 1st of January, 1891, unless plaintiff elects to pay for the same at the valuation of $600.

5. It declares and decrees that if, for any cause, said plantation and property can not be “redelivered to the defendant, then and in that event, the plaintiff shall pay the sum of $1000 for the use of the place and the detention of the plantation, stock, etc., and the further sum of $1400, as the value of 140 head of cattle as his one -half of the increase thereof.

6. It is further decreed that in the event' of the mules, horses, agricultural implements, etc., aggregating '$3632.50 in value, and particularized in paragraph one, supi'a, being lost, or cannot, for any reason, be restored to the defendant, the plaintiff shall pay same to the defendant.

7. It fully reserves the right of defendant to sue the plaintiff on his sequestration bond for any property not faithfully delivered, and for any damage done thereto, and also to sue the plaintiff for any damages he may have sustained by reason of an interruption of his business, and for attorney’s fees.

We have been at the pains to detail and particularize the items of and amounts awarded by the judgment appealed from, as the best means of making a concise statement of the issues before us, the most clearly defined idea which it conveys to our minds being the great care with which the interest of the defendant is safeguarded throughout.

It appears that the amount allowed the defendant, as the value of' his sequestered property in ease it should not be returned, is less than the amount claimed by about $5000. The estimated value of the anticipated crop for the year 1890 of $4940 is disallowed. The $5000 exemplary damages are likewise disallowed. In his answer to plaintiff’s appeal, the defendant demands that the judgment upon his reconventional demand be increased by those amounts, and thus conformed to his prayer.

I.

Under this synoptical statement of the case, the first question to be determined is the right of plaintiff to terminate the contract, as he attempted to do, by leasing the plantation-to another person and putting him in possession thereof at the commencement of the year 1889. In his petition he charges that Kee was unmindful of his duties as manager, and failed to give proper care and attention to the cattle and stock, and permitted his plantation to be devastated and to run to waste, notwithstanding he had from time to time furnished him- with large sums of money, for the disbursement of which he has given no satisfactory account. He futher charges that the defendant has disposed of poi’tions of the movable property which belonged to him in violation of the express terms of his agreement, and has admitted that fact to him, though he has not accounted for the proceeds thereof. He further charges that the defendant has grown arbitrary, arrogant and overbearing, and in his conduct toward him as proprietor he has gz’own disrespectful and insubordinate to his authority and that of his agents and representatives, and that he threatened maltreatment and bodily harm to the person sent to take the place in charge preparatory to the completion of the contract of lease, of which he was duly notified, and in due season, and which contract was also duly recorded.

Hence he discharged defendant and gave him due and timely notice to vacate the premises; but he peremptorily refused to do so. He therefore charges and fears that the said Kee may make use of his possession to further dilapidate and waste his plantation, and is therefore entitled to a sequestration and damages. On his furnishing a forthcoming bond for $5000, the plaintiff entered into possession of the property sequestered, personal and real, in January, 1890, and so retains it now.

On the contrary, the defendant alleges that the institution of the suit and, the seizure under the sequestration were a deliberate and wanton violation of the agreement of 1886, and without notice of any kind to him, or his having made any previous demand, or complaint of his management or conduct of the plantation and business, or of any dereliction of duty on his part.

The defendant admits that in December, 1889, he received a notification from the plaintiff to the effect that he had given an option to one Von Kalckstein, on the place, and that the latter called on him soon after and demanded possession of the place and the movable property on the place, but that “he refused to so deliver the place until he could effect a settlement with plaintiff under the contract.”

He further avers that soon afterward Long came to Louisiana, and during the course of an interview with him, he (Kee) stated “that if he (plaintiff) wished to dissolve the contract, and put some one else on the place, that, though it was late to make other arrangements, he (defendant) would vacate as soon as a settlement could be effected between them.”

He further “admits having made out á list of the property on said place, including both plaintiff’s and defendant’s, but avers that same was made under the distinct and express understanding that said place was to sell for $50,000, and that plaintiff was to settle with defendant for his property as herein claimed, and before he should deliver the place.”

As applicable to these various averments, counter averments and admissions, the introduction of evidence took a wide range, and, as is quite usual in such cases, there is a great divergence of opinion amongst the witnesses pro et con as to the exact situation of affairs in December, 1889, and as to the management and administration of plaintiff’s plantation and 'property by the defendant antecedent thereto under the contract. But it is clear that from appearances, as well as from representations that were made to him, it was altogether' unsatisfactory to the plaintiff; and as there was no fixed limit for the duration of the cofitract and the end of the year was approaching, we are of the opinion that he was at liberty to put an end to their engagement, retake his plantation and property and lease them to another. It seems quite unreasonable that defendant should have entertained a different opinion. Whether there was anything due him on settlement of accounts with plaintiff or not, that could not form a just ground for defendant’s resistance to his demands. For a settlement he had adequate remedy by procedure against plaintiff or his property in the parish of his own domicil.

We are of opinion that plaintiff had just grounds for his sequestration, and that the judge a quo erred in quashing it and decreeing the defendant entitled to be restored to possession, thus prorogueing the contract for the year 1890.

II.

Having arrived at the conclusion that the plaintiff is entitled to. possession of the plantation and other property, two alterations, must be made in the judgment, viz:

1. There must be eliminated therefrom the sum of $1000 allowed for the use and detention of the plantation stock, etc., as stipulated in item five of the summarized statement of the judgment ante.

2-. The reservation contained in item seven thereof must be disallowed. In addition to these alterations, which are the immediate-result of the said conclusion, there are others which must be disallowed and rejected, .as wé will demonstrate in subsequent paragraphs of this opinion.

III.

In the contract there is a clause, quoted supra, to the effect that, Kee stipulated and agreed “to pay and satisfy all taxes and real charges due and arising and becoming due during the existence of the contract and agreement. ’ ’

It is evident that under that stipulation Long was not bound for, the payment of taxes and repairs, or other “real charges on the property.” In the very nature of things the amount and character of the “real charges” that were to be or might be placed on the plaintiff’s property were optional with the defendant under the contract, and whether same consisted of buildings, fences, ditches or-other plantation improvements. But it was the use of such ameliorations only that defendant had the right to enjoy during the continuation of the contract, and the ownership thereof was to be in plaintiff as the proprietor of the soil. For they became eo instanti. attached to the land, and formed a part of it as immovables by destination. Heneo the defendant is entitled to no compensation for-their construction, and he has no right to take them away. If he was entitled to either, the quoted clause of the contract would be nugatory and void. Therefore all claims of this character must be-. eliminated from the judgment and bill of particulars; and among the number the following are enumerated and specifically disallowed, viz:

Addition to gin house...................................................................................................$200

Four tenement houses..................................................................................................540

One chicleen house...................................................................................... 20

Building one large harn............................................................................................... 200

Getting out and hewing posts.............................................. 200

One cotton house........................................................................................................... ‘ 40

On e corn crib.......:........................................................................... 45

Xine corn cribs and cabins............................................................................................180

Boring ten wells, etc.......................................................................................................100

Wheels and buckets', etc................................................................................................ 25

Setting up sugar* mill................................................................................................... 50

Two arpents of seed cane.......................................................................................... 50

Aggregating.........................................................................................................$1650

IY.

The next question of importance for our determination, is the true meaning and import of the clause in the contract, viz: “and Kee shall have one-half interest in the increase in the stock,” etc.

It seems that the interest of Kee, under such a contract, ought to be and is very closely assimilated to an usufruct under the principles of the code. On this principle the increase in stock should be thus ascertained, viz: from the number of cattle on hand, at the incipiency of the engagement, those purchased subsequently, and the increase by births, deduct the diminution by death, and loss from other causes, and make an equal division of the net increase, one-half to each of the parties.

Certainly the proprietor is entitled, like the usufructuary, to have set apart and returned to him, at the termination of the agreement, a number of cattle, etc., equal to that he invested originally, such as have died in the meanwhile being replaced from the new born cattle; and it is only the net increase that is to be divided between him and his manager or superintendent.

The settlement to be made in such case, is to be assimilated to the settlement of a partnership account, amongst partners inter se, or that of a community. And this is the rule in such matters. Wimbush vs. Gray, 10 R. 46; Succession of "Waterer, 25 An. 211; R. C. G. 593.

Now, in this case, the testimony of the defendant is, that at the time of making the contract of 1886, he did not count the cattle and could not state the number. He took all the cattle on the the place and was to have an interest in the increase. Of the calves that were branded in 1886,1887 and 1888, he was not able to say how many survive.

It is quite unnecessary for us to ’ examine • or discuss any additional testimony on this branch of the case, as it is manifest that under this admission no “ settlement ” can be made at this time, for the parties, on the theory we have adopted; and it will, therefore, be necessary that it must be remanded to the court a qua to be examined and dealt with according to law.

Y.

Erom what appears from the first paragraph of the summarized statement of the judgment supra, and a comparison made with the bill of particulars appended to the defendant’s answer, the amount and value of the personal property for which the plaintiff was held bound to account is left in just as great doubt and uncertainty as defendant’s interest in the “increase in cattle,” etc. The judgment, in general terms, requires certain property to be restored to the defendant and decrees the defendant to be the owner of certain articles and items of property — also in general terms — such as “ stock, mules, horses, oats, rice straw, sweet potatoes, cow peas, sulphur, salt, rice, nails, chickens,” and divers other things; and for the whole fixes the price at the “ lump sum ” of $3632.50. It would be practically impossible for the plaintiff to have complied with the judgment of the court otherwise than by paying this valuation placed on the property, for he could not have exercised the right of restitutio ad integrum to which he was clearly entitled.

YI.

After a thorough examination of this case in all its bearings, our conclusion is that the judgment in the premises, in so far as we can make it determinate, should be in favor of the plaintiff; and, first announcing the various precepts set out in the preceding part of this opinion as our conclusions in regard to the law governing this case, and the principles on which the settlement between the parties must proceed, we think the judgment should rather be reversed and revised than amended.

It is therefore adjudged and decreed that the judgment appealed from be reversed in toto; and it is now ordered and decreed that the demands of the plaintiff be sustained to the extent of recognizing his right to put an end to the contract between him and the defendant, as of date December 31, 1889, and retake possession of his plantation and its appurtenances and personal property; and to tbe further extent of recognizing and enforcing Ms sequestration, reserving fully the mutual rights of the parties to litigate their respective claims of ownership to any and all personal property in the premises..

It is further ordered and decreed that each and all of the demands of both parties for the damages claimed respectively, in the petition of the one, and the answer of the other, be rejected and disallowed, with a reservation to each of the right to make claim on another trial for specific damage done to any part of the property of either by the other, through any tort, trespass or force.

It is further ordered and decreed that all other questions pro et eon be remanded to the court a qua for trial and determination according to law and the views herein expressed, the defendant and appellee to pay costs of appeal, and those of the lower court to await final judgment therein.


text:
    No. 1386.
    Augustus C. Townsend vs. Jacob U. Payne & Co. et als.
    Where a judgment creditor issues execution and seizes land and fails to seize the immovable by destination, this does not estop him from seizing in a second suit the property omitted in the first. The second mortgage note, which is concurrent, and by virtue of which the second suit was instituted and the seizure made, is a separate entity, and the mortgage securing it, being indivisible, covers all the property on the land placed there for its service and use. Growing crops inure to the benefit of the seizing creditoi*. When severed from the land under seizure, they do not change their status, and are not relieved from seizure. While stored in cribs, barns and houses, when under seizure, a second seizure, on a concurrent mortgage note, can be made. Rents, whether payable in money or in part of the crop, inure to the benefit of the seizing creditor. Where A sells an undivided half of a plantation, together with the mules, wagons, etc., placed upon it for its use and service, to B, and afterward A and B enter into a planting partnership, the partnership is distinct from the individuals, A and B, as owners of the land. Mules therefore placed on the plantation by the partnership are there temporarily, not for its service and improvement permanently, and are not liable to seizure and sale on the mortgage exe cuted by A and B for the purchase price of the undivided half of the plantation. The mules, wagons, etc., placed on the plantation before the sale, and which were there when the mortgage was executed by B to A for the purchase price, are liable to seizure under said mortgage.

      APPEAL from the Thirteenth District Court, Parish of St. Landry. Lewis, J.

      H. L. Garland and Estilette & Dupré for Plaintiff and Appellee:
    Under executory process none buttlie property specially mortgaged can be seized.
    Movables placed by their owner on his land to continue thereon forever and to be used for the cultivation of the land become immovables by destination; if placed by other than the owner of the land and to be used for a limited time they remain movables, and are not attached to the plantation and can not be seized under executory process. Marcade, Yol. 2, p. 332; Rogron, Art. 524, C. N., p. 260.
    Crops gathered as well as cord wood served from the land can not be seized with it as forming a part thereof under executory process. C. C. 465.
    A plantation owned jointly by the members of the partnership-is not partnership property in the absence of an express stipulation to the contrary. 15 An. 22.
    The seizure of the share of one of the partners in the land owned by them jointly, but cultivated for the benefit of the partnership, dissolves the partnership. C. O. 2823.
    The seizure of the land separately from the cattle, wagons, implements, etc., is a severance of these articles, which become thereby movables.
    A creditor can not seize specific property of the partnership to satisfy a debt of one partner. C. C. 2794 ; 21 An. 518; 27 An. 556; 14 An. 108.

      Kenneth Baillio for Defendants and Appellants:
    1. Judicial admissions are conclusive, and estop.
    2. The allegation that movables were “severed” from the land carries the necessary implication and admission that the lands and movables had been united and attached.
    3. A judicial admission amounts to a waiver, where it admits something previously denied.
    4. A general denial, traversing as it does the law andfacts of plaintiff’s case,puts at issue his right of action. O., p. 1; 14 An. 120, 137; 14 L. 421; 12 An. 190; 13 An. 138,205.
    5. As a partnership is a distinct legal entity, partnership actions must be prosecuted in the partnership name. One of the partners can not recover in his own name. C., p. 1,15.
    6. Movables attached to land for its service and improvement are immovables’ and are included under the generic term “appurtenances” in an act of sale. C. C. 465, 466, 467, 468, Bouvier, Verbo Appurtenances.
    7. Especially is this the case where there is no reservation of such movables in the act of sale, and where such movables continue to remain upon and be used on said place.
    8. Such movables, forming part of the realty, are covered by a mortgage bearing on the land. Movables placed on the land, in lieu of others of like kind which have perished, become affected by the mortgage. Stare decisis.

    9. Acts sous seing privé have no legal date against third persons unless the date of execution be proved by evidence dehors the act. Hen. Dig., p. 600, No. 6, and cases cited.

      10. Where a clear declaration in an act som seing privé shows when it was executed the formal date given to it will yield to the date as declared in the body of the act.
    11. Private agreements unrecorded can have no effect against a previously recorded mortgage. C. C. 2266.
    12. Amortgagor cannot by private, unrecorded articles of partnership with a third person impair the force and effect of the mortgage granted by him, and which has already attached. C. O. 2266.
    13. Crops and rents, yielded or produced during the seizure, inure to the benefit of the seizure. C. P. 656, 657; C. C. 466.
    14. A party is estopped from reclaiming property where, in due course of law, it has legally been applied to the payment of his debts.
    15. Corn in cribs, and placed on a plantation for its use, is immovable. C. C. 468.
    16. Seed cane, planted in the soil, is likewise immovable, and goes with the land. C. O. 468, 465.
    17. Every mortgage note, though of a same series, is a separate entity, and the mortgage is indivisible as to each and every one of these notes. C. C. 3282. It matters not whether these several notes are held by one or several persons.
    18. Seizing creditors who act in good faith, without malice and in the just pursuit of their legal rights, will not be mulcted in speculative damages at the Instance of their debtor upon mere technicalities. Stare decisis.

   The opinion of the court was delivered by

McEnery, J.

Jacob U. Payne & Co., judgment creditors of Augusta C. Townsend, plaintiff in this suit, seized and sold the undivided interest of the said Townsend in the Anchorage plantation in St. Landry parish, and also his undivided half interest in twenty-four mules, five wagons, one ox cart, three horse carts and one water cart on said place at the time of the seizure.

Previous to the seizure the defendants, Jacob U. Payne & Co. under a judgment, rendered on one of the concurrent mortgage notes, seized the same undivided interest in the plantation, but did not seize the other property.

The plaintiff Townsend brings this suit to have annulled the seizure and sale of the above described property, which was not seized in the first suit, and asks that the defendants be condemned to pay him in solido the value of said movable property, to which he attaches a value of 111,570, indefault of returning the same to him.

He avers that the sale of said movable is null and void for the following reasons:

1. Because said movable property was not mortgaged with the land, or attached to it either by acts of your petitioner or by operation of law, but belonged to the partnership of Payne and Townsend.

2. Because said Payne & Oo. by a previous seizure in suit No. 14,510 had seized his interest in the lands without seizing his interest in the movable property above mentioned, and had by that act severed said movable property from the land.

3. Because, as to the crops, they had been severed from the land before they were seized under executory process, and were not therefore liable to be seized in virtue of the mortgage bearing on the land.

He avers his inability to resort to the writ of injunction to prevent the sale of said property.

The defendants filed a general denial, except as to the seizure of the land, and allege that the land and the movables sold only for $4600, of which amount the seizing creditors were entitled to a pro rata of only two-thirds as the holders of two of the mortgage notes, the State National Bank of New Orleans holding the third note of' the same series. Defendants further plead that, after crediting their debt with their share of the proceeds, the plaintiff is still indebted to them in a large sum. They allege that the movables referred to-in plaintiff’s petition were attached to the plantation seized and formed a part of it, and they were covered by the special mortgage under which the plantation was seized; that the crops — corn, cotton and cane — were growing on the land at the time of the seizure in the first and the second suits by these same judgment creditors; that the rents collected after and during the seizure inured to the benefit of the seizing creditors.

They pray for a rejection of plaintiff’s demand.

There was judgment in favor of plaintiff for one-half undivided interest in ten mules, and corn and cotton to the value of $700. The •other demands of plaintiff were rejected. The defendants took a suspensive appeal from this judgment.

The grounds for this suit will be taken up in their order as stated in the petition :

1. In 1882 Henry M. Payne sold to the plaintiff, A. O. Townsend, one-half interest in the Anchorage plantation. At the time of the sale it had on it fourteen mules, wagons, carts and agricultural implements. These were placed on it for its service and improvement. These were not specially mentioned in the sale.

The sale was part cash and on credit. The note on which executory process was obtained in the suit of Payne & Co. vs. Townsend,, No. —, on the docket of the District Court of St. Landry parish, was the last of the four notes executed by Townsend as the purchase price.

It can not be doubted but that the property on the place put there for its service and improvement was covered by the special mortgage executed by Townsend to Henry M. Payne for the purchase price. C. C. 468.

The planting partnership afterward entered into between Payne and Townsend, in which it was stated in the articles of agreement that the personal property on the place should be partnership property, could not so change the status of the property as to affect the rights, of a bona fide holder of the mortgage notes, secured by mortgage, not only on the land, but the property placed there by the mortgagor for its use and improvement.

The partnership of Payne & Townsend was a distinct personality from the individuals composing it. Payne and Townsend, the individual owners of the plantation, were distinct persons from the personality of Payne & Townsend. When Payne & Townsend therefore as a partnership bought and placed mules on the place, the partnership was not the owner of the property, and therefore did not place them there, destined for its improvement and use. The mules placed on the plantation by the planting partnership of Payne & Townsend after the execution of the special mortgage to Payne were not sub - ject to seizure under said mortgage.

2. Payne & Co., in suit No. 14,510, on the docket of the District Court, seized the land, but did not seize the movables. By this act the plaintiff contends the defendants in this suit, the seizing creditors, under the writ in the last suit under which the property was sold,. severed said movable property from the land, and they were estopped from seizing it in the last suit.

The second suit was an entirely distinct proceeding from the first. The simple failure to make the seizure in no way waived the right of the seizing creditors to seize the property in a second suit in a writ issued in a proceeding obtained by a holder, although the same party, of another of the concurrent mortgage notes.

It was an indulgence, and so recognized in the suit of Townsend vs. Payne, just decided; and there was no reason during the pending of that suit why the creditors could not have changed their intention,. withdrawn their indulgence and seized the property.

3. Under the seizure in the first suit all the crops on the Anchorage plantation were growing. The gathering of the crops by the seizing creditors through the. sheriff, and storing them in barns or cribs or cotton houses, did not change the character of the property. They inured to the benefit of the seizing creditor. When thus gathered, and the same creditor under the same mortgage makes another seizure, the first note having expired, they still remain subject to seizure, and can be sold under a second writ.

The rents, whether payable in money or part of the crop when seized by the sheriff, inure to the benefit of the seizing creditor under the express provisions of the law. C. O. 466; O. P. 656.

We conclude that all the property seized, except the ten mules placed on the Anchorage plantation by the planting partnership of Payne & Townsend, was subject to seizure under plaintiff’s writ.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to reject all the demands of plaintiff, except for the one-half interest in the ten mules. In other respects it be affirmed., plaintiff to pay costs of appeal.


text:
    No. 1387.
    Succession of Aimée Toledano. Mrs. Louis Fontenot, Opponent.
    Where the father donates, as her dowry, immovable property to his daughter, and the mother advances money to the husband of the daughter, and afterward, with the wife’s consent, the husband sells this property to the mother. Held, that the money could not form the consideration of the sale. As the wife continued, in possession of the property, the sale was simulated. The mother donated this property to the daughter. The property must be collated in the succession of the father, and not in that of the mother. While the plea of estoppel may be invoked against a married woman to prevent the perpetration of a fraud by her, it can not be used against her to make a victim and thus inflict upon her a wrong and injury.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Lewis, J.

      Thos. H. Lewis & Son, for Opponent and Appellee,
    cited: C. O. 2357-8-9-60-61-62; 4 Rob. 453; 2 An. 834; O. C. 3524, 3462; 5 An. 382; 12 An. 852; 14 An. 169; 9 La. 603.

      Kenneth Baillio, E. P. Veazie and O. W. DuRoy contra:

    I. O. O. 2357. Immovables, settled as dowry, can be alienated or mortgaged during the marriage neither by the husband nor by the wife, nor by both together, except as is hereinafter expressed.

      *2. O. O. 2360. Immovables, settled as dowry, may be alienated with the wife’s consent when the alienation of the same has been allowed by the marriage contract; but their value must be reinvested in other immovables.
    8. In a final partition among heirs, where they mutually claim collations from each other, they are all plaintiffs and defendants. 2 An. 923; 11 An. 386, 671.
    4. Replications are not permitted by our law, and so all allegations in the answer are open to every objection of law and fact as nonage, coverture, fraud, prescription and the like, as if specially pleaded; if defendant be surprised, the proper remedy is a contrueeance or new trial. I-Iennen Digest, p. 1155, 2, No. 1, and cases cited.
    5. Judicial admissions estop.
    6. Action to annul a judgment is prescribed by one year. C. P. 613.
    7. Action to annul contracts, testaments or other acts is prescribed by five years. O. C. 3542.
    S. The prescription against the action of a married woman to annul the sale of her total property begins to run from the date of the judgment of separation. O. C. 2363.
    9. Personal actions are prescribed by ten years.
    10. Judgments caxx not be attacked in collateral proceedings. 15 An. 279 ; 35 An. 831, 533; 32 An. 896; 38 An. 803.
    II. Contracts duly executed and recorded, and having no patexxt nullity stamped on their face, can not be assailed in a collateral px*oceeding. 20 An. 41; 23 An. 46; 30 An. 374; 81 An. 862.
    12. Authority of attorneys can not be questioned where parties are guilty of laches. 6 An. 736.
    13. Married women xxiay be estopped. 9 M. 852; 6 M. 524; 9 R. 28.
    14. Fx'ror, fraud, violence and want of consideration must be cleaxdy proved.
    15. A married woman is estopped from setting up her own neglect to execute her judgment of separation. While third parties may plea the nullity of such judgment for said reason, she can not. 31 An. 212; 18 An. 280.
    16. Where a judgment of separation decrees a moneyed judgment, the judgment of separation is valid, even if the judgment is not executed.
    17. Publication of such judgment presumed. 15 An. 81.
    18. A contract will not be invalidated for violence if there be another motive for making said contract.
    19. Mere inferences or opinions in regard to error, fraud, violence, etc., will not suffice to invalidate a contract.
    20. The law will not lend its aid to assist a married woman to perpetrate a fraud. 88 An. 406.
    21. Opponent can not plead her own simulation to annul the sale to her mother. 6 M. 254; 9 R. 28; 9 M. 852. At least not without a counter letter.
   The opinion of the court was delivered by

McEnery, J.

This suit involves the settlement of the succession of Mrs. Aimée Toledano.

T. S. Fontenot, the administrator, after having sold the effects of the succession, proposed for distribution the sum of $4959.03 among the five sets of heirs.

There is no complaint as to the administration, but there are demands for collation among the heirs for property and money advanced to them by Mrs. Toledano.

The principal contention is as to the property demanded from Mrs. Louis Fontenot for collation. The history of this property is as follows : It is described as a certain plantation situated in this parish, on the east side of Bayou Grand Louis, containing about 600 superficial arpents, bounded north by public road, east by T. C. Bataille, south by land formerly belonging to James M. Thompson, and west by Bayou Grand Louis, with all the buildings and improvements thereon, which property is alleged to be worth not less than $6000.

1. It was originally acquired from her father, Dr. Louis Debaillon, who gave it to her as dotal property by marriage contract of date December 12, 1859.

2. On January 7, 1879, Louis Fontenot (Mrs. Lucille Fontenot joining in the act and consenting to the sale) sold said property to-Mrs. Aimée Toledano.

3. On December 14, 1874, Mrs. Aimée Toledano made a donation inter vivos of this same property to Mrs. Lucille Fontenot, opponent in this case.

4. On March 29, 1881, Mrs. Lucille Fontenot sold a portion of this same property to Samuel Haas.

5. On July 29, 1884, Mrs. Lucille Fontenot donated another portion of this 600-acre tract to her daughter, Marie L. Fontenot.

6. On March 3, 1886, Mrs. Lucille Fontenot sold another part of this 600-acre tract to S. Haas.

7. On February 1, 1887, Mrs. Lucille Fontenot sold to Ohristoval Sylvester another portion of this same land.

8. On February 28, 1888, Mrs. Lucille Fontenot made a donation to Jos. D. Fontenot, her son, of another part of this 600 tract.

9. On April 3, 1888, Mrs. Lucille Fontenot made a donation of a small lot of this same tract to the board of school directors of St. Landry parish.

The question presented is whether Mrs. Louis Fontenot is to return said property to the succession of her mother, or hereafter to the succession of her father, who is still living.

There is no doubt of the fact that the property was acquired by ■donation, in the first instance from her father.

With her consent the husband of Mrs. Louis Fontenot sold the property to Mrs. Toledano, who afterward donated it to her daughter. !

The property always continued in the possession of Mrs. Louis Fontenot. It is alleged by Mrs. Fontenot, and we think it is fully sustained by the evidence in the record, that she was coerced by her husband in making the deed to Mrs. Toledano, and that no money was paid as the price of the sale and that it was a pure simulation, and no title passed, of course, to Mrs. Toledano. The heirs demanding this collation then lose nothing from the succession of Mrs. Toledano, as no money was taken from her estate to pay for this property.

Mrs. Louis Fontenot sued her husband for a separation of property, and obtained a judgment against him for $3500, for the appropriation of her dotal and paraphernal property. This judgment was never executed, and the moneyed part of it, so far as it relates to the money received from Mrs. Toledano for the piece of the property donated to her by her father, is a fiction. It is in evidence and not contradicted that Mrs. Fontenot knew nothing of this suit for separation. It is alleged and admitted that some $1600 was advanced by Mrs. Toledano to the husband of Mrs. Fontenot before the sale and returned to Mrs. Toledano at some subsequent time by the mother-in-law of Mrs. Fontenot.

This sum, it is alleged, formed the consideration of the sale. The wife can not alienate her property for the husband’s benefit, the only exception being that provided by Art. 2361, which authorizes the sale of the dotal immovables, with the authorization of the judge, at public auction, for the purpose of liberating from jail either the husband or wife. It is not claimed that this condition has been complied with. After the property was returned to Mrs. Fontenot, she •sold portions of it to different persons. It is claimed that, as the deed recites, in the description of the property, that she acquired by donation from her mother, she is now estopped from denying the verity of the donation. This donation was only for the purpose of identifying the property, and is not such an admission as to prevent her from showing the true source of her title to the property.

It is also alleged that the opponent, Mrs. Fontenot, is estopped by her acts, silence and acquiescence, admissions and notifications; otherwise she would perpetrate a fraud on her co-heirs by avoiding a collation.

If Mrs. Fontenot’s acts and silence were construed against her, she would be compelled bo make a donation of the same property to two successions, to one of which, that of her mother, she does not owe the collation, as the property never formed a part of her estate.

While the plea of estoppel may be invoked against a married woman to prevent the perpetration of a fraud by her, it certainly can not be used against her to make her a victim, and thus inflict upon her a wrong and an injury.

We have carefully considered the able opinion of the District Judge and his rulings on preceding matters, motions and exceptions, and we are of the opinion that, during the course of the trial, and in the final judgment, he has done full justice to all the parties.

He has endeavored, and we think successfully, to carry out the equality which must naturally be observed among the heirs as required by Art. 1229, O. O.

Judgment affirmed.


author: Breaux, J.

text:
    No. 1382.
    Martha Gee et al. vs. John Clark, Jr.
    1. The assessment being in the name of the only owner known on the records is sufficient and legal.
    2. Tax sales are not made in violation of Act No. 7 of 1875, relating to overflowed lands, unless it be proven that the land was subject to overflow at the time the assessment was made. Evidence that the lands were entered in 1861 as overflowed lands will not bo considered as proof that they were subject to ouerflow ' in 1873, 1874, 1875.
    8. The purchasers of lands from one who has purchased at tax sale will be maintained in his purchase after ten years’ possession in good faith, unless the tax title is radically null and void and bad faith quite evident.
    4. Possession as owner in good faith, under a title translative of property for ten years, gives an indefeasible title. The defendant purchased in 1875 from one who had purchased at tax sale some time previous. His title is legal.
    APPEAL from the Twenty-fifth District Court, Parish of Vermilion. Edwards, J.

      W. B. White and K. Baillio for the Appellant.

      L. L. Bourges for the Appellees.
   The opinion of the court was delivered by

Breaux, J.

This is a petitory action.

Plaintiffs sue the defendant to recover the southwest quarter of section 2, township 11 (eleven) south, range 8 east, situated west and northwest of Ooulée Granger, and 1 arpent front at southwest corner of north half of southwest quarter of the said section, and running east to said coulée.

They also sue to recover rents. Sfi * jfc * ^

They allege that this land was purchased from the United States government by Thomas Ooopwood in tibe year 1860, as a locator for account and ownership of Joel W. Jones and John A. Winston, jointly, with Wm. T. Moore, Henry A. Ellison, and others.

On the 5th of September, 1882, plaintiffs, by authentic deed, became the sole owners.

They contend that the defendant has. unlawfully taken possession of the lana. That he is domiciled thereon and cultivates it.

The defendant in his answer pleads the prescription of three, five and ten years, and that he went into possession in good faith and under a just title translative of property more than ten years prior to the institution of this suit.

That this deed of sale bearing date the 6th day of November, 1875, was recorded in the recorder’s office, parish of Vermilion, in which parish the land lies.

That his vendor purchased the property at tax sale for taxes due by Thomas Ooopwood, November 6, 1875.

He alleges that he has paid taxes on the land since 1875, and produced his tax receipts. That he has placed improvements on the land he values at $300, which, in case of eviction, he, in reconvention, claims.

The court house at Abbeville, La., was destroyed by fire on the 7th day of April, 1885; also defendant’s deeds and the tax deed of the vendor to him.

On the 30th May, 1887, this vendor signed an act, wnich was recorded, to renew the deed destroyed by fire.

We shall have occasion to refer again to this deed. v «í ¡|í $ •$>

The title was prior to 1875 recorded in the name of Thomas Ooopwood. The land was assessed in that name to the date of the tax sale made to the author of defendant’s title. (Since the purchase made by the defendant it has been assessed in his name.)

The defendant urges that plaintiffs deed does not maintain his petitory action.

There is no evidence that it was recorded in the parish of Vermilion.

The right of a party to maintain a petitory action against an owner under a written title in good faith by producing an unrecorded deed is denied by defendant.

He confidently relies on Article 2266 of the Civil Code, declaring all sales affecting immovable property unrecorded to be null and void except between the parties to the act, and that they will not maintain a petitory action against a party in possession under a recorded title. C. C. 2242, 2246, 2253, 2442, 2264. Coleman vs. Coleman, 37 An. 567.

We prefer not to rest our decision upon these authorities, although there is some force in the position.

The fact, however, that plaintiffs’ deeds were unrecorded can be invoked in so far as relates to-the tax deed.

It is not reasonable on the part of the plaintiffs to contend that the property was not assessed in the name of the owner, and at the same time allege that Coopwood’s ownership, dating since 1861, was their own, as he in the purchase acted as their agent. They were absentees, unknown as the owners of the land. It is not strange that the assessor continued to assess the property in the name of Coop-wood some time after his death. }{< * % * * s¡í }J: *

The defendant necessarily relies upon secondary evidence to maintain his ownership.

It is his misfortune to have lost his title deeds.

We will seek to prevent that any advantage be obtained on the part of defendant in so far as relates to the evidence contained in the lost documents; but, at the same time, we will endeavor not to aggravate the loss by over-exacting and severe construction of the evidence.

The property was assessed in the name of Thomas Coopwood, whose title as owner was of record in the recorder’s office of Vermilion parish at the time.

It was advertised for taxes in that name and sold at tax sale.

It can not reasonably be denied that the vendor to defendant did, in November, 1875, purchase lands at tax sales assessed as just mentioned. * * * Hi Hi Hi Hi Hi

The plaintiffs contend in opposition to this tax title:

1. That sales made in violation of Act No. 7 of 1875 are null and Void.

2. That a tax sale is void if the taxes have been previously paid.

1. The sale was not made in violation of Act 7 of 1875.

It was not overflowed land and, therefore, did not come within the provision of that act. The only evidence upon the subject is an admission made by counsel, to which our attention is especially directed.

It reads: “ It is admitted by all parties that this land was entered In 1860, by Thomas Co'opwood as overflowed lands, at the price of 12 1-2 cents an acre.”

It does not follow that it was overflowed land in 1873 and 1874, at the time assessed. During the many intervening years great changes Lave taken place in the level of lands, the flow of the water and the -drains.

To enable any one to obtain the benefit secured by that act the proof of overflow must be more recent.

That act provides only as “to taxes due on lands overflowed •during the flood of 1874.”' Proviso, Sec. 7.

There is no evidence at all about the overflow of 1874. The iecord does not disclose any proof except the admission just mentioned, predicated upon the ex parte affidavits of entrymen not always particular about their affidavits respecting the overflowed •condition of the land they seek to enter or purchase from the government. * Hi * * -fi Hi *

2. If the taxes had been paid by the plaintiffs, as alleged, the tax title would be void.

The receipt of payment is not produced.

The oral testimony of one of the plaintiffs in regard to the payment of these taxes does not refer to the lands claimed except in general terms.

The lands are not specially referred to as lands upon which plaintiffs have paid taxes.

We conclude that the tax title was sufficiently legal to justify defendant’s good faith, and support his allegation that he in 1875 purchased a title he had reason to believe just and translative of property. ¡¡«‡‡‡‡‡‡‡

It is next contended by plaintiffs’ able and energetic counsel that the acts of May 80, 1887, in whiclothe parties declared that the original act of sale had been destroyed, declarations were made fatally damaging to defendant.

Let us examine the grounds: In the deed of renewal the land is erroneously described as in township 12.

It is situated within the limits of township 11 (eleven).

It is sought to hold him bound by the terms of this act of renewal.

The defendant is an illiterate man; also the vendor of the land to him. The locality was described: A certain coulée was given as the boundary, which coulée does not flow through any part of township 12, but through township 11, in which lies the land. He fenced this land, cultivated it, and has had actual and uninterrupted possession of it since his purchase in 1875.

The evidence discloses a mistake of one figure only in drawing up the act, 12 when it should have been 11. The remainder of the description in the act shows that the land is in 11.

Plaintiffs allege that the defendant has possession of the land wa have already described. The defendant shows that this is the land which he bought in 1875, and the deed to which was recorded in the mortgage book. This is the land on which he has paid taxes since that time.

The evident error in inadvertently substituting the figure 2 for 1 should not be the cause of his losing the rights he has.

The evidence was properly admitted under the circumstances and the defendant was rightfully allowed to correct the error and prove in which township the land lies.

The defendant has shown open and uninterrupted possession more than ten years, under a just title acquired in good faith.

He is protected by the plea of three years in so far as relates to the tax title, and by the plea of ten years as an owner in good faith during that time.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is affirmed. The plaintiff and appellant to pay the cost of appeal.


text:
    No. 1390.
    Mary Engelman, Wife, etc., vs. Edward D. Coco, Administrator.
    Where tlie sole heir to a succession and all the creditors make an extra judicial settlement of the succession and involve its affairs in confusion, this court will leave them where they have placed themselves and dismiss the suit.
    PPEAL from the Twelfth District Oourt, Parish of Avoyelles. Blackman, J.

      W. Hall and John C. Wickliffe for Opponent and Appellee.

      Thorpe & Peterman for Defendant and Appellant.
   On Motion to Dismiss.

The opinion of the court was delivered by

McEnery, J.

The appellees ñle a motion to dismiss this appeal on the ground that an order of appeal had been granted in open court to the Oourt of Appeals, and that the District Oourt was without jurisdiction to grant an order of appeal on petition to this court.

There had been no appeal bond filed when the order of appeal had been granted to the Oourt of Appeals. The order of appeal to the Circuit Oourt had been granted in error. It had no jurisdiction ratione materise. This court was the proper one to which the appeal should have been made returnable. The first order of appeal could be set aside, having been granted in error, by a second order making the appeal returnable to this court.

The motion to dismiss is denied.

On the Merits.

James Adair died in August, 1882, leaving a surviving widow his sole heir.

The estate had two creditors — one who qualified as administrator, E. D. Ooco, and the other, Anatole Ooco, who held certain mortgage notes and vendor’s privilege against the immovable property of the succession.

The only parties who had any interest in the succession, the widow and the two creditors, made an extra judicial settlement of the succession, the result of which is inextricable confusion and a vast amount of unprofitable litigation.

Believing that the succession property would not pay all the debts, it was agreed verbally among themselves that A. Coco was to pay the debts of the succession, for which she was to convey to him in time twenty acres of the immovable property, and she was to retain the persona] property and the balance of the farm property, on which was situated the dwelling and other buildings. This agreement was partially carried out, and a division line made between their properties.

The administrator was instructed not to proceed witn the administration of the succession. A period of six years elapsed. The mortgage notes, it appears from the record, have prescribed, and the administrator, on the application of the widow Adair, is compelled to file an account, which she opposes, and attempts to hold him liable for rents and revenues, etc.

There was judgment adverse to the administrator, from which he ' has appealed. It would be inequitable and unjust to hold him liable in accordance with the judgment appealed from.

What this court said in the succession of Gassie is applicable to this case. Succession of Gassie, 42 An.

We will, therefore, without prejudice to the right of Mrs. T. J. Bonnette, formerly the widow Adair, to have returned to her the real estate now in possession of the succession of Anatole Coco, or his representatives, follow the rule we adopted in the succession of Gassie.

It is ordered, adjudged and decreed that the judgment appealed from be annulled, overruled and reversed, and it is now ordered that the rule obtained against the administrator to file an account be discharged and the application be dismissed, without prejudice to the widow Adair, now Mrs. T. J. Bonnette, to have returned to her in kind whatever property the administrator may have in his possession belonging to her as the sole heir of her husband.

Appellant and appellee equally to pay costs' of appeal.


text:
    No. 1380.
    H. & C. Newman vs. J. Wildenstein.
    An appeal taken from the refusal of a court to grant a continuance must be dismissed. The refusal is not an interlocutory order, susceptible of causing an irreparable injury. Particularly ought the appeal to be dismissed when the judgment on the merits is not appealed from.
    APPEAL from the Twenty-first District Court, Parish of Iberia. Mouton, J.

      L. T. Dulany for Plaintiffs and Appellees.

      Foster & Broussard for Defendant and Appellant.
   On Motion to Dismiss.

íhe opinion of the court was delivered by

Bermudez, C. J.

The plaintiff sued before a justice of the peace for $86. The defendant pleaded a general denial. After trial judgment was rendered in favor of plaintiff, and defendant appealed to the District Court. He there filed a reconventional demand against the plaintiff for $2500.

When the ease came np for trial the defendant moved for a continuance, which was declined. Evidence was adduced, and, after hearing, the court affirmed the judgment appealed from. The defendant then appealed to this court from the refusal of the judge to allow the continuance, and, in no way, from the judgment rendered on the merits.

.A motion is made here to dismiss the appeal.

If the judgment rendered, which does not expressly pass on the reconventional demand, which it ignores totally, were susceptible of review by this court, an appeal should have been taken from it.

That was the only-way in which this court could have revised the ruling of the District Judge refusing a continuance.

But no appeal whatever was taken from the judgment, be it what it may, rendered on the merits of the case.

Had an appeal been taken from a formal judgment dismissing the reconventional demand, the lower court would have been sustained; for it is manifest that, while sitting as an appellate court to try a case coming from a justice’s court, it had no jurisdiction to hear and determine a reconventional demand, which should have been instituted as an original demand by direct action.

Even if the reconventional demand had been regularly brought, the refusal of the judge to grant a continuance would not be treated as an interlocutory decree susceptible of causing an irreparable injury and be renewable here, as is attempted.

The motion must prevail.

It is, therefore, ordered that the appeal herein be dismissed with costs.

Breaux, J., recused as having been of counsel for plaintiff.