author: Nicholls, C. J. Blanohard, J.

text:
    No. 13,227.
    Rosetta Gravel Paving and Improvement Company vs. Edward Adler.
    Syllabus.
    1st. The right to file a transcript oí appeal within three judicial days following- the legal return day, has become a rule of practice acknowledged by the jurisprudence of the State which the Supreme Court will not disturb.
    2nd. Where an appeal is brought before the Supreme Court from a judgment upon a claim below its general appellate jurisdiction on the ground that the action involved a contestation in the trial court of the plaintiff’s claim as being an illegal or unconstitutional tax, that fact must affirmatively appear in the pleadings, or it will be dismissed.
    On Rehearing.
    Unless the question of the constitutionality or legality, vel non, of a paving tax is involved in the controversy as it presents itself here, the court has no jurisdiction where the amount in dispute is less than two thousand dollars— differentiating City of Shreveport vs. Prescott et als., 51st La. Ann., 1895.
    APPEAL from the Civil District Court, Parish of Orleans. St. Paul, J.

      Buck, Walshe & Buck for the Pliantiff, Appellee.

      Dinkelspiel & Hart for Defendant, Appellant.
   The opinion of the court, on motion to dismiss, was delivered by Nicholls, O. J.

On rehearing, by Blanchard, J.

On Motion to Dismiss Appeal.

Nicholls, C. J.

The plaintiff and appellee herein has moved to dismiss the' appeal for the following reasons:

1st. This court has no jurisdiction rations mater iae as appears by the face of the record, the amount being insufficient to give this court jurisdiction.

2nd. Even should this court have jurisdiction, the transcript of appeal was not filed on a return day, nor within three days thereof.

Appellant, in his brief, urges that the first ground assigned for a dismissal is untenable, being covered and controlled by the decision of this court in City of Shreveport vs. S. Prescott et al., rendered in April, 1899.

Touching the second ground, he states that the appeal in this case was returnable on the first Monday in June, 1899, which was the 5th of June; that this court did not hold any session on that day, and not thereafter, until June 12th, 1899; that the appeal was lodged in the Supreme Court on June 13th; that Section 4 of Act No. 45 of 1810, E. S., p. 100, provides that when the court is not in session on the return day, it shall be sufficient to lodge the transcript of appeal within three judicial days after the first session thereafter; that in this ease the record was filed on the second judicial day after the first meeting day and legally in time.

The plaintiff obtained "judgment in the District Court against defendant for three hundred and sixty dollars and fifty-six cents, with interest from November, 1895, with recognition of its lien and privilege and right of pledge upon certain property of defendant described in a certificate attached to the plaintiff’s petition, and condemning said property to be sold and the proceeds applied to the payment of the judgment.

The petition upon which this judgment was rendered recited that the plaintiff had entered into a contract for the paving of Gravier street, from ITagan avenue to Genois street, by virtue of Ordinance 10,490, and the provisions of the charter of the city, as would appear by a copy of said ordinance and of the contract made part of the petition; that defendant was a front proprietor of property on the lower side between Clark and Genois, within the limits of the contract, with a frontage as shown by the certificate of the City Engineer annexed to the petition; that the work had been completed by the plaintiff and accepted by the city, and the City Engineer and Commissioner of Public Works had issued to him certificates showing the completion of the work and the proportion 'of cost chargeable against such front proprietor, among others the certificate attached to the petition showing the proportion due by the defendant; that notwithstanding amicable demand, defendant refused to pay the amount due by him as his proportion of said work. In view of the premises, judg-meat was asked against him for the same. Defendant filed several answers.

In the first he pleaded the general issue.

In the second answer defendant declared that he was not liable to the plaitntiff in the manner or form claimed, or in any amount whatever, because the so-called contract referred to in the petition was never legally made, some being contrary to the specifications submitted to the bidders and on the basis of which the bid of the plaintiff was made. In the third answer defendant declared that Section 3 of Act No. 73 of 1876 is violative of the Constitution of the United States and of the State of Louisiana; that it violates Section 1 of the 14th amendment to the Federal Constitution, in that it deprived petitioner of his property without due process of law; that it violated at the time of its enactment Article 110 of the Constitution of 1868 of the State, then in force, inasmuch as it purported to take property for purposes of public utility without adequate compensation; that if otherwise valid, which was denied, it became invalid by the adoption of the Constitution of 1879, because in conflict therewith and with Article 156 thereof, providing that private property should not be taken for public use without just and adequate compensation being made; that if the Constitution of 1898 can he considered as in any way affecting this case or the contract sued upon, that said act is ineffective because in conflict with the Constitution of 1898, Article 167.

Defendant prayed that plaintiff’s demand be rejected, and Section 3 of Act No. 73 of 1876 be decreed unconstitutional.

The return day for the appeal was Monday, the 5th of June, 1899.

The Supreme Court did not. meet on that day, nor any other day of that week, it being what is known as the off week or “working” week of the court.

The court met on the 12th of June, and the transcript was filed on the 13th.

This was in time.

In Wood & Roane vs. Wood, 32 Ann., 801, we said:

“The right to file a transcript of appeal within three judicial days following the fixed return day, has become a rule of practice acknowledged by the jurisprudence of the State, which this court will not disturb.”

An examination of the allegations of plaintiff's petition shows that the objections urged against the contract on which the plaintiff declares, were that “it was contrary to the specifications submitted to the bidders, and on the basis of which the bid of the plaintiff was made.”

It is true that in the third answer filed defendant attacks the constitutionality of Act No. 73 of 1870, but what connection that act has with plaintiff’s claim does not appear.

The contract annexed to the petition recites that it was entered into under the authority of Act No. 119 of 1886. The constitutionality of that act is not contested, nor is it claimed that there was any departure by the Common Council in making the contract from the authority conferred upon it by that law.

Besides this, Ordinance No. 10,496, annexed to the petition, declares that the specifications of the contract were “in conformity to petition of property holders published as the law directs.”

Under what circumstance that petition was filed does not appear.

As1 matters stand, the claim of the plaintiff is before us as one based upon an ordinary paving contract entered into by the Council, the claim being’ for an amount under our appellate jurisdiction.

It could only come before us on appeal on an issue of legality, or constitutionality, raised and determined in the lower court.

That such an issue was made and determined should appear by the pleadings.

There is nothing’ so appearing on the face of this record. The Prescott case furnishes no precedent foi; the present one.

The appeal must be dismissed, it not coming under our appellate jurisdiction.

The appeal is dismissed.

ON APPLICATION FOR REHEARING.

Blanohard, J.

The judgment of the court heretofore sustained plaintiff’s motion to dismiss the appeal on the ground that the court was without jurisdiction raiione materias.

The application for rehearing is predicated upon the allegation of error in the judgment of the court, and as grounds therefor it is contended that the constitutionality of Act 73 of 1876 was attacked in the .answer, and thus the constitutionality and legality of a tax was the issue presented here, and it is claimed that under the authority of City of Shreveport vs. Prescott, et als., 51st La. Ann. 1895, this court has jurisdiction.

The former opinion of the court held, and correctly so, that the Prescott ease, supra, was not in point as an authority in the instant case.

Here the answer of defendant attacked only that part of ’Sec. 3 of Act 73 of 1876 which prescribes that the owner or owners of property upon which an assessment is due, under a paving contract, shall, in addition to the pledge on his or their property, be personally bound for the assessment.

Acts 113 and 119, respectively, of 1886, being- statutes relating-to the paving of streets later than that of 1876, are not assailed in the answer, nor is the constitutionality or legality of the paving ordinance and contract in question, or of plaintiff’s assessment thereunder, challenged under the aforesaid statutes of 1886.

It seems that the paving contract in this case was predicated more particularly upon Act 119 of 1886, and that the Act 73 of 1876 is not drawn in question, except that the contract sued on declares that the contractors shall have a lien and privilege under Act 119 of 1886 “and all other laws on the same subject matter” — it being the contention that Act 73 of 1876, being on the same subject matter, thus becomes involved.

But the judgment of the court a quo seems to have sustained defendant’s contention with regard .to the Act of 1876 by expressly excluding in its decree any personal liability on part of the defendant, thus making the judgment, in effect, one in rem against the property.

Plaintiff has not appealed from this judgment and has not asked that the judgment must be amended here so as to charge defendant with personal liability.

It thus appears that the question of the constitutionality and legality of the .paving ordinance contract, and assessment, so far as the Act of 1876 has any bearing on the same, is not in issue in the case before this court.

This being so, it is clear that the constitutionality and legality of no tax, toll, or impost is involved in the controversy as it presents itself here, and the amount being less than $2000, this court has no jurisdiction.

For these reasons it is ordered and decreed that the application for rehearing be denied.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 13,430.
    State ex rel. Vincent Graffina vs. Honorable Edward Finnegan, Recorder First Recorder's Court, City of New Orleans.
    Syllabus.
    1. Under supervisory jurisdiction vested by Article 94 of the Constitution, the Supreme Court will decide issues purely of facts when it appears that, owing to the erroneous construction of the meaning of an ordinance, the judge of the lower court has decided a defendant is guilty of having vio- • lated the ordinance, and this without the least evidence to sustain his sentence. '

      2. There were three separate charges brought against the defendant each of whijsu was decided against him. Sentence on one of the charges is affirmed as legal. With reference to the other two charges, not being sustained by any evidence whatever, the sentences are illegal.

      ^ PPLICATION for a Writ of Certiorari.

      Stafford <& Laniibert, for Relator.

      James J. McLoughKn, Assistant City Attorney, for Respondent.
   The opinion of the court was delivered by

Breaux, J.

Defendant setting- forth that he was charged in the First Recorder’s Court with violating City Ordinances Nos. 4155 and 7607, O. S.: first, with peddling vegetables within six squares of the public markets, second, with keeping a fruit stand and selling vegetables thereat, and third, with keeping a private market; that he in that court demurred to the affidavit, but that his demurrer was overruled, and he was found guilty of-all the offences, asks for the issuing of a writ of certiorari to the end that the proceedings before the court a qua may be ascertained and the issues decided.

This court issued the usual writ nisi to have the papers brought up for examination. The trial and conviction complained of in this case present the same issues as those considered and passed upon in case No. 13,417, City of New Orleans vs. Graffina. We, in this last cited case, passed on all the questions of law presented, and held that on appeal this court is not vested with jurisdiction regarding questions of fact exclusively; that- the court will not as a court of review or appeal consider, weigh, and decide questions of facts purely. This court has repeatedly held that, on appeal, the fact or facts referred to in Article 85 of the Constitution were facts to be considered in deciding questions of illegality or unconstitutionality of the law or ordinance, and not merely the fact or facts, for instance, of guilt or innocence of one accused of having violated a municipal ordinance presenting- no question of law'whatever, and giving- rise to no issue which a court of appeals is bound to consider.

While this is the conclusion regarding jurisdiction on appeal, it does not follow that one is to remain condemned without a hearing when, for any reason patent of record, it appears that owing to some mistaken conception of the judge or some' erroneous ruling, the defendant is condemned under an ordinance without the least fact to sustain the sentence. For instance, the court will, in this case before us for decision, take cognizance on an application for a writ of cer-tiorari of the complaint, for the reason that it has supervisory jurisdiction over inferior courts, and that in the exercise of that jurisdiction it may correct a patent error of fact arising from the misapplication (or extent of the application sought to be made), of the terms of a municipal ordinance. We hold, under Article 94, that to the extent only that relator sells vegetables, he violates the ordinance; that it makes no difference whether he considers his place of business a private market or a store, stand, or other place of business; that the fact that he has not chosen to establish a private market does not afford him the least ground for selling food commodities which the ordinance provides should be sold at public or private markets. True, the defendant does not keep a private market, and cannot be held for keeping such a market, but he, none the less, violates the ordinance as to the sale of vegetables, as before stated.

With reference to the defence that the defendant is not a peddler, and that no evidence was offered to sustain the charge that he is a peddler, that, owing to a misconstruction of the ordinance, the court held that he is a peddler, we think that the defendant is entitled to a hearing.

There being no testimony before the court showing that he is a peddler, we must hold the defendant cannot be compelled to pay a penalty under the construction that one who sells market commodities at his store or business stand is a peddler. We have, in another case, defined a peddler as meaning “one who sells anything having value, bought by him, and sold from place to place in small quantities”. Roy vs. Schuff, 51st Ann., 86. The word peddler was also defined in Tax Colector vs. Ray, 50th Ann., 574, as being “one who carries about with him the articles of merchandise which he sells. That is to say, the identical merchandise he sells he has with him and delivers at the time of sale.”

It is evident- that the Recorder has erred in the meaning and scope of tlxis word and that to that extent the enforcement of the ordinance is illegal.

In the case of State ex rel. Hohn vs. Recorder, 50 Ann., 549, a similar question regarding jurisdiction was presented and the court said, “that no proof whatever of the use was administered and proof claimed to negative that use since the notice was excluded. The sentence without proof and the refusal to hear relator’s witnesses authorizes the relief claimed on the present application”. Constitution, Article 90; C. P., 897.

In the case before us it also appears that sentence was pronounced against the- defendant for being a peddler without proof that the defendant is, or was, a peddler. In the case, No. 13,417, we held that defendant was properly condemned for selling vegetables at his fruit stand. We did not pass upon the question of fact inesented in that case. In the case now before us for decision, we pass upon the question of facts as coming clearly within the supervisory jurisdiction of this court.

It is therefore adjudged, ordered and decreed that the rule nisi issued in this case be made absolute and the application of relator is sustained to the extent that he has been condemned to pay for keeping a private market within the market limits and peddling within the market limits, and that it be refused to the extent that he has been condemned for “offering for sale and selling vegetables within the market limits”.

This application is granted in part and rejected in part at respondent’s costs. The writ is made perpetual.


author: Blauchard, J.

text:
    No. 12,956.
    Jeremiah Lyons vs. William H. Fitzpatrick.
    Syllabus.
    An act of sale containing a clause excluding recourse as well as warranty is held to moan that should the buyer be subsequently evicted he has no claim upon the seller for restitution of the price.
    APPEAL from the Civil District Court, Parish of Orleans— Theard,, J.

      Richaid Lyons for Plaintiff, Appellant.

      J. Zach Spearing for Defendant, Appellee.

      Richardson & Soule for Iiowcott Land Company, called in warranty, Appellee.
   The opinion of the court was delivered by

Blauchard, J.

Plaintiff sues to recover the price paid by him to defendant for a square of ground in the city of New Orleans, from which he alleges he has been evicted.

It appears that the property had been assessed for many years to the Estate of S. Kohn and in default of the payment of taxes for 1881, 1882 and 1883 was adjudicated to the State. Later, it was offered by the State, under the provisions of Act No. 80 of 1888, and purchased by the Howcott Land Company. The Auditor of the State, on April 24, 1893, executed to that corporation a formal conveyance of the property, and in May of the same year the Iiowcott Land Company sold it by notarial act to Fitzpatrick, the defendant herein. The following year Fitzpatrick, by public act, conveyed his title and possession to the plaintiff. All these conveyances were duly recorded in the Conveyance office.

Something over a year later certain persons claiming ownership, brought a petitory action against him (Lyons) to recover the property.

The title of that suit was “Widow Jeanne Henriette Gardanne, et al. vs. Jeremiah Lyons”.

It was filed in the Civil District Co art of the Parish of Orleans, and resulted in. a decree in favor of plaintiffs, awarding them the property, subject to charges in favor of Lyons, amounting to something-l'ess than fourteen hundred dollars, on account of taxes, street assessments, etc., which he had expended in behalf of the same. This judgment was rendered in May, 1897.

Lyons did not appeal from it, and in July following the present action was brought to enforce restitution of the price he had paid Fitzpatrick.

The answer of the latter is that while he sold plaintiff the property, he did so under express exclusion of warranty and liability in language so broad and plain that plaintiff can not be held to recover even the purchase price.

He further sets up that, in addition to the exclusion of warranty, plaintiff was fully aware of whatever defects, if any, existed in respondent’s title, and accepted the same with such full knowledge, and assumed the danger of eviction, purchasing at his peril and risk.

He represents he was given no notice of the suit of Gardamie ei al. against Lyons, was not called upon to defend the same, nor was he called in warranty. He avers with regard to that suit that the same was not properly defended and because thereof was lost to defendant therein — plaintiff here — and sets forth in what particulars it was not properly 'defended.

Averring his acquisition of the property from the Howcott Land Company he calls that corporation in warranty, asking judgment against it for the sum he had paid it for the property in the event plaintiff recovered judgment against him.

The result of the trial in the court below was adverse to plaintiff and he prosecutes this appeal.

It is true that Fitzpatrick was not called in warranty in. the Gar-danne suit, nor was he called upon to defend the same as he should have been, and an examination of the record of that case, which is part of the transcript of the instant case, has led to the conclusion that the judgment therein would hardly have stood the test of an appeal here had such appeal béen taken.

But it is not found necessary to go into that inquiry. The case is against the plaintiff on the first defense set up in the answer.

There is found in the act of conveyance by Fitzpatrick to the plaintiff herein the following clause, to-wit:—

“This sale is made without any warranty, or recourse, on the part of-the vendor herein, except only as regards his own acts and deeds.”

It will be observed that this is not merely an exclusion of warranty. Were that all, well might plaintiff invoke O. C. 2505, which declares that even in case of stipulation of no warranty, the seller in case of eviction, is liable to a restitution of the price — leaving it to be determined whether he was relieved of the obligation by the plea that the buyer had purchased at his peril and risk in consequence of having been aware, at the time of the sale, of the danger of eviction.

It is much more than an exclusion of warranty; it is an exclusion of recourse against the vendor, as well. “This sale is made without any warranty or recourse’’ etc. “Recourse” on whom? Necessarily ihe seller. The words are there, have a meaning and must be given effect. They were part of the contract and can not be “read” out of it. They were intended to have meaning. These words “or recourse” carry but one idea and that is that, thereafter, there was to be no reversion or coming back upon the seller in consequence of anything which might happen to the buyer because of his purchase of the property.

‘Not only do I not warrant the title to this square of ground’, says the seller, 'but if you are evicted you are to have no claim on me for restitution of the price’. This was what was evidently meant by the seller when he took care to write into this contract of sale exclusion of recourse as well as exclusion of warranty.

Words are to be understood in their ordinary significance. “No recourse” means no access to, no return, no coming back upon, no assumption of any liability whatsoever, no looking to' the party using the term for any reimbursement in case of loss, or damage, or failure of consideration in that which was the cause, the motive, the object, of the undertaking or contract.

The seller had the right to stipulate for this exclusion of recourse. This record' furnishes justification for it, if such were needed. The buyer could lawfully agree to the same, and did.

Agreements legally entered into have between the parties thereto the force and effect of law'. Courts must give effect to them.

The seller in this instance was conveying only a title he had acquired at tax sale. He was selling at a price below what he considered the- value of. the property because it was a tax title. That was understood between the parties.

The element of speculation entered into it on the part of the buyer. He had objected to a larger price because of the fact that he was buying a tax title.

In saying this the court is not to be understood as holding, or intending to convey the idea, that a title derived from a tax sale is looked upon as sufficient to notify purchasers that there is danger of eviction.

But where the seller and buyer make this the subject of discussion and bargain, and because of the origin of the seller’s title a difference, was made in price, as here appears, it furnishes alike a reason why the seller should stipulate that no recourse for the price was to be made upon him, and why the buyer should assent to the same.

As this seller did so stipulate and this buyer did so assent, the latter must be held to his bargain. He has no cause of complaint, and the judgment appealed from does him no wrong.

Affirmed.

Rehearing refused.


author: MoNROE, J.

text:
    No. 13,006.
    Louis Kohlman et als. vs. Joseph Glaudi.
    Syllabus.
    1.Adjudications of property to the State based upon assessments and proceedings in the name of a dead man are void.
    2. -An adjudication of property to a tax purchaser, under Act 82 of 1884, predicated upon prior adjudications to the State, or upon assessments, in the name of a dead man, is void.
    3. A tax purchaser, under Act 82 of 1884, who fails to pay the taxes due upon the property for 1880, and subsequent years, assumed by him, acquires no title.
    4. An adjudication of property to a tax purchaser, under Act 80 of 1888, predicated upon prior adjudications, assessments, or proceedings, in the name of a dead man, and without the notice to the owner required by Article 210 of the Constitution of 1879, is void.
    5. A purchaser of property acquiring from one who acquired and held in bad faith, does not add the time of his author’s possession to his own, for the purposes of prescription.
    6. The prescription of three yea.rs, under Act No. 105 of 1874, does not apply to cases in which there appear radical defects of title such as those indicated above.

      PPEAL from the Civil District Court, Parish of Orleans — Zing,

      Arthur J. Peters, Vincent Poulon and Charles H. Osterberger for Plaintiffs, Appellees.

      Albert Voorhies for Defendant, Appellant.,
   The opinion of the court was delivered by

MoNROE, J.

This is a petitory action, brought by the heirs of John Kohlman and Regina Yaeger for the recovery of certain improved property on St. Ferdinand street in New Orleans. Defendant filed exceptions, of “no cause of action”, “vagueness” and “prescription”, which were referred to the merits; and answered, setting up title and possession for “a number of years”. There was judgment for plaintiffs and defendant has appealed. It appears from the evidence that five of the plaintiffs are the children of John Kohlman and Regina Yaeger, his wife, both deceased; that the other plaintiff is the only surviving child of Regina Yaeger by a second marriage, and that the property in controversy was acquired, by purchase, by said John Kohlman, during the existence of the community between himself and said Regina Yaeger, to-wit, May 12, 1855; that said John Kohlman died March 28th, 1860, and that Regina Yaeger died April 21st, 1875; that neither of them had previously alienated said property, and that it was assessed in the name of John Kohlman from T872 to 1886, inclusive, with the exception of the year 1881, when it was assessed in the name of Henry Kohlman. It further appears that, upon June 26th, 1886, saiq property was offered for sale by the State, under Act 82 of 1884, for taxes of 1873, 1875, 1877 and 1878, “assessed in the name of John Kohlman”, and was adjudicated to Jacob Hoth, Joseph Schemel, and J. Stumpf for the sum of fifty-three dollars, cash, and their assumption of, and promise to pay, the taxes of 1880, and subsequent years. A deed was made by the collector, pursuant to this adjudication, July 18, 1886, which contains the further recital, “of which property John Kohlman is the present owner.” Following this, upon July 23, 1886, the adjudieatees presented a petition, with the deed annexed, to the Civil District Court, alleging that the property had been advertiséd as the property of John Kohl-man and sold to thorn fot taxes assessed in that name, and praying to be pn t in possession. A writ was accordingly issued and notice to vacate served by the sheriff, who made return, as follows: “and on the 27di of July, I served a copy of the within three days’ notice to vacate on John Kohlman, by leaving1 the same in the hands of Francis Kohlman, an occupant person apparently over the age of fourteen years”, etc., and the writ of possession was finally executed by the ejection of the dead man’s children, August 4, 1886.

The adjudicatees, however, failed to comply with the conditions upon which the property was adjudicated to them, that is to say; they failed to pay “the taxes of 1880 and subsequent years”, which they had assumed and promised to pay, and, accordingly, upon July 22nd, 1889, the State offered the property for sale, under Act 80 of 1888, for the taxes of 1880, 18S1, 1882, 1883, and it was adjudicated to Jacob Englehardt “through -Jacob Hoik". Upon August 20, 1889, a deed was made by the collector to Englehardt in conformity to said adjudication. Thereafter, upon February 5 th, 1891, the property appears to have been sold by act, before Titche, notary, by Engle-hardt to Joseph Schemel; and, upon May 21st, 1892, it was sold, by act before Legier, notary, by Schemel, to the defendant, Joseph Glaudi.

It may be remarked, that in 1876, 1879, 1883, 1884 and 1885 there appear to have been adjudications of the property to the State and city,' based upon assessments made, after .his death, in the name of John Kohlman. There was, however, no change of possession until Kohlman’s heirs were ejected at the instance of Messrs. Hoth, Sche-mel, and Stumpf in 1886.

It is plain from this that the State and city had no right to make any of these adjudications, and that the State had no right to sell the property under Act 82 of 1884, or under Act 80 of 1888, since all the assessments, upon the basis of which those adjudications and sales were made, were absolutely null and void — having been made in the name of a man who died in 1860. (Stafford vs. Twitchell, 33rd Ann., 520; Jackson vs. Wren, 36th Ann., 315; Edwards et als. vs. Fairex. 47th Ann., 170; Succession of Lacroix vs. Lumber Co., 49th Ann., 1445.)

It is also plain, under the settled jurisprudence of this State, that Iloth, Schemel and Stumpf acquired no title by virtue of the proceedings under Act 82 of 1S84, for the further reason that they did not comply with the conditions precedent required by the act as interpreted by this court.

State ex rel. Martinez vs. Tax Collector, 42 Ann., 677; Remick vs. Lang, 47th Ann., 914; Johnson vs. Martinez, 48th Ann., 53.

It is equally well settled that no title passed by virtue of the proceedings to sell the property under Act 80 of 1888 for taxes claimed to be due for years subsequent to the adoption of the Constitution of 1879, for the further reason that the notice required by Art. 210 of that instrument wás not given.

Breaux vs. Negrotto, 43rd Ann., 426; Montgomery et als. vs. Land & Lumber Co., 46th Ann., 403; Finlay & Brunswig vs. Peres et als., 48th Ann., 17; Genella vs. Vincent, 50th Ann., 957.

Upon the question of prescription, it is evident that when Tioth, Schemel and Stumpf ejected the Kohlman family in 1886, they were aware that they had not complied with the terms of the adjudication under Act 82 of 1884. Considering this circumstance in connection with the fact that when the State offered the property for sale, under Act 80 of 1888, in order to realize the taxes which Hoth, Schemel and Stumpf had assumed, but had failed to pay, it was adjudicated to Englehardt “through Jacob Hoth”, and that Englehardt, thereafter, sold it to Joseph Schemel, and it seems quite within the range of possibility, that Englehardt was interposed merely in order to enable Hoth, Schemel and Stumpf to retain both the property and the price. At all events, it is clear that Schemel, from whom the defendant purchased, in May, 1892, was not a possessor in good faith, from which it follows that even if the defendant be regarded as holding- in good faith he took nothing in that respect from his author. And his own possession extended over a period barely exceeding five years. The prescriptions of ten, and thirty, years are therefore out of the case, and we have been unable to find the law upon which counsel rely in pleading the prescription of five years. The prescription of three years, under the Act of 1874, set up for the first time, in this court, has been held to be inapplicable to eases such as this. Parish of Concordia vs. Bertron, 46th Ann., 356; Johnson vs. Martinez, 48th Ann., 52; Marmion vs. McPeake, 51st Ann., 1631.

For these reasons we are of opinion that the'judgment of the lower court is correct.

It is, therefore, affirmed.

Rehearing refused.


author: Nicholls, C. J.

text:
    No. 13,337.
    Macedonia Baptist Church vs. Elias H. Dickinson et als.
    Syllabus.
    1. Where the evidence shows that an election takes place each year for membership in the Board of Trustees of a church; that there are no fees or emoluments attached to the office; that the value of the entire property of which the Board of Trustees would have the administration for one year would not exceed twenty-five hundred dollars, a contest as to who constitutes the members of the Board of Trustees, does not present a “matter in dispute” such as falls for its settlement within the appellate jurisdiction of the Supreme Court.
    2. Where the issue between parties to a suit is not as to the rights of ownership but that “of possession”, and the value of the latter right is below the amount of the Supreme Court’s limit of appellate jurisdiction, an appeal taken to that court must be dismissed.
    APPEAL from the Fourteenth Judicial District, Parish of Iber-ville— Talbot, J.

      Lozano <15 Robert and Clarence S. Iieberi for Plaintiff, Appellant.

      Calvin K. Schwing and Moise L. Levy for Defendants, Appellees.
   The opinion of the court was delivered by

Nicholls, C. J.

The petition in this case is stated to be the petition of the Macedonia Baptist Church, a religious corporation duly organized and existing- under the laws of the State of Louisiana, appearing and represented by the duly elected and acting Board of Trustees, by Richard M. Johnson, President or Chairman; M. M. Joshua, Secretary; Alfred Broussard, Treasurer, and Howard Delago, Strong (iresham, Lee Porter, and Anthony Johnson, members.

The petition alleges that said corporation is the owner of certain described property worth the sum of twenty-five hundred dollars;‘that the buildings and improvements thereon, also belonging to said congregation, consist of the church and parsonage; that petitioners are in the full and complete possession of said property as the legal custodians, holding same for, and on behalf of, the Macedonia Baptist Church.

They allege that Elias IT. Dickinson, John Craig, Richard Martin, Alfred Thomas, Charles Harris, Charles Williams and Westley Dean, all residents of the parish of Iberville, State of Louisiana, have force-ably and illegally broken the openings of their said church, taken off the locks and replaced them by substituting locks of their own, and threatened to forcibly eject their pastor, Reverend S. D. Nance, from the parsonage, the possession of which he now holds by virtue of his office, and the will of petitioner properly expressed; that your petitioner, as in duty bound, has replaced its locks, etc., on said church, and resists the attempts of the said persons to take forcible possession of its property; that the said parties named will carry out their threat to eject its parson, and will illegally and forcibly take possession of said church and realty unless restrained by the conservatory process; that it is entitled to a writ of injunction directed to each of the defendants named, prohibiting and restraining them from in any manner interfereing with said property, or the free use thereof by the said trustees acting for and on behalf of petitioner; that it will suffer irreparable damage unless the injunction should issue.

In view of the premises it was prayed that service be made on each of the defendants named, to-wit: Elias IT. Dickinson, John Craig, Richard Martin, Alfred Thomas, Charles Harris, Charles Williams and Westley Dean; that a writ of injunction issue to each of the defendants named, comanding and restraining them from in any manner interfering with said property; that after the legal delays and due proceedings had there be judgment in favor of petitioner, perpetuating the injunction prayed for.

An injunction was ordered to issue, as prayed for.

Defendants filed an exception which on their motion was referred to the merits.

Defendants answered. After pleading the general issue they specially denied that the plaintiffs, Richard Johnson, M. M. Joshua, Howard Delago, Strong Gresham, Lee Porter, and Anthony Johnson were members of the Board of Trustees of the Macedonia Baptist Church, a religious corporation.

They denied specially that they had any right or authority to institute this, suit or stand in judgment therein.

They averred that they (respondents) were the legal and true trustees of the said Macedonia Baptist Church — that the writ of injunction issued herein directed to respondents was illegal and tortious and should be dissolved, and that for the issuing of the said illegal and tortious writ they were entitled to damages against the plaintiffs in the sum of five hundred dollars for attorney’s fees.

In view of the premises they prayed that after due legal proceedings, the said injunction be dissolved; that they be given judgment against plaintiffs and the sureties on the bond, Alfred Broussard, Howard Delago, Henry Dupuy, and James Morgan, for damages, in the sum of five hundred dollars, and that respondents be recognized as the rightful and legal trustees of the Macedonia Baptist Church, a religious corporation.

The District Court rendered judgment, decreeing that defendants constituted the Board of Trustees of the Macedonia Church, and ordering, adjudging and decreeing that the demand of the plaintiffs be rejected and the injunction issued be dissolved without damages.

Plaintiff appealed.

OPINION.

Defendants moved to dismiss the appeal on the ground:—

1st. That the amount of the value of the property alleged in the petitiou, is immaterial to the issues involved in this case, and was a fictitious valuation alleged for the purpose of giving jurisdiction to the Supreme Court.

2nd. That the issue was between two conflicting Boards of Trustees of the Macedonia Baptist Church, and the amount involved was entirely below the jurisdiction of the Supreme Court, as no fees or emoluments of office were alleged or shown.

We are compelled to dismiss the appeal for want of jurisdiction, rations materias, whether we consider matters from the standpoint of the action being an action to determine the conflicting claims of the parties to the suit to membership in the Board of Trustees of the Macedonia Baptist Church, or of its being an injunction taken out by that church to restrain the defendants from taking illegal possession of the church property and attempting to control the use and administration thereof.

The evidence shows that an election takes place each year for membership in the Board of Trustees of the church; that there are no fees or emoluments attached to the office, and that the value of the entire church property, of which the Board of Trustees would have the administration for one year, would not exceed twenty-five hundred dollars.

Under such conditions a contest as to who constitute tbe members of the Board of Trustees of the Macedonia Baptist Church does not present a matter in dispute such as falls within our appellate jurisdiction for its settlement.

Viewing' the action as an injunction suit against illegal acts of possession, and for possession, we find it has been several times held by this court, where the issue between the parties is not as to the ownership of property, but as to its possession, that it is the value of the “right of possession” which is involved, and not the value of the property itself, by which the jurisdiction of this court has to be determined.

It is not claimed or pretended that the value of the right of possession of the church property involved in this litigation is such as to cause this appteal to be legally passed upon by us.

Slawson vs. Maggett, 22nd Ann., 272; Harris vs. Stockett, 35th Ann., 387; Hight vs. Himel & Tallieu, 39th Ann., 113; In re. Genella Asking for Possession, 45th Ann., 1377; State ex rel. Humphreys vs. Richardson, 46th Ann., 133; Rea vs. Orleans, 46th Ann., 1444.

The appeal herein taken to this court must be, and it is, hereby, dismissed.

Rehearing refused.


author: Blanchard, J,

text:
    No. 13,107.
    L. S. Harrison & Bro. vs. J. Soulabere.
    Syllabus.
    1. It is permissible to cumulate the revocatory action and that en declaration de simulation in the same petition, provided it be done by distinct alternative allegations. Otherwise, the two demands will be hold inconsistent.
    2. The effect of the clerk’s certificate, appended to the transcript, that the latter contains all the evidence adduced upon the trial, is to obviate the necessity of a statement of facts, or assignment of errors, and precludes dismissal of the appeal.
    3. where such a certificate appears and yet no testimony or evidence of any kind is found in the record to support the judgment rendered in favor of plaintiff, the same must be avoided and one of non-suit entered, or else the cause be remanded. '

    PPEAL from the Civil-District Court, Parish of Orleans — King

      William 8. Benedict for. Plaintiffs, Appellees.

      Charles II. Oslerberger and O. W. Long for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J,

The petition in this case alleged that plaintiffs recovered judgment in December, 1897, against one Paul Delord for the sum of $202.50, with interest and costs, which judgment was duly recorded in the mortgage office, and thereafter operated as a judicial mortgage on the real property owned by said Delord fin the parish of Orleans, and that execution having issued on the judgment, the same was returned nulla "bona.

It then avers that Delord is the owner of a certain lot of ground, describes the same, and fixes its value at $2500; that during the pend-ency of the suit he made a paper transfer of same to one O. W. Hunger for a nominal price, and, later, the same day, Hunger retrans-ferred the property to him at a nominal price; and that, thereafter, in December, 1897, Delord made a paper title to the property to Soul-abere, defendant herein, for the nominal sum of $1250, part cash and the remainder represented by mortgage on the lot.

Then follow allegations, not in the alternative, that would make-of the suit both a revocatory action, and an action en declaration de simulation.

Fraud and bad faith and dealings out of the usual course of business, and injury to plaintiffs, are charged.

Simulation, want of consideration, collusion between vendor and vendee to place the property beyond the reach of the creditors of the vendor, and continued possession of the latter, are charged.

The only party asked to be cited is J. Soulabere, the vendee. De-lord, the vendor and judgment debtor, is not made a party defendant.

The judgment prayed for was one avoiding the pretended act of sale to Soulabere, decreeing Delord to be the owner of the property, and recognizing plaintiffs as entitled to a judicial mortgage thereon.

It is permissible to cumulate the revocatory action and that en declaration de simulation in the same petition, provided it be done by distinct alternative allegations. Otherwise, the two demands would be inconsistent, for the averments that would give to the complaint the character of the revocatory action are such as affirm the reality of the acts complained of, yet seek to avoid the same as vicious and fraudulent. While the charge of simulation carries with it the idea of utter want of reality of the things seemingly real.

Johnson vs. "¿'layer, 30th La. Ann. 1203; 34 La. Ann. 684.

If this action were intended as revocatory in character it was necessary to cite the fraudulent vendor as well as the fraudulent ven-dee.

Since the vendee, holding by title alleged to be simulated, alone is cited, it must be considered that plaintiffs intended their declaration to set forth only the action en declaration de simulation.

We will treat it as such.

It was met by the exception of no cause of action, which was, later, ordered by the court to be referred to the merits.

Defendant then answered with a general denial.

At the trial he made no appearance, either personally or by counsel.

Judgment was rendered, decreeing Delord to be the owner of the lot of ground, avoiding, as to plaintiffs, the act of sale made to Soulabere, and recognizing plaintiffs’ judicial mortgage on the property.

Execution seems to have then issued on the original judgment of plaintiffs against Delord and under it the lot of ground in question was seized. Whereupon, Soulabere, claimant owner of the property, satisfied the judgment by payment under protest, to prevent the sale of his property under the writ, and then applied for a devolutive appeal from the judgment in the instant ease decreeing his title simulated.

This appeal was granted and is now before us.

The clerk’s certificate at the end of the transcript declares that the 22 pages of the same “do contain a true, correct and complete transcript of all the proceedings had, documents filed ancl evidence adduced upon the trial of the cause”.

No note of evidence appears in the record. If witnesses were called and examined there is nothing to inform us of the fact. If documentary evidence was offered it does not appear.

So far as the record discloses we have here a judgment affecting' the rights of property rendered on no evidence of any character whatever. The clerk’s certificate must be held for purposes of this appeal to import full faith, and it declares that the transcript filed contains all the evidence adduced. Then none was adduced, for none appears. Hence, the judgment stands before us unsupported.

Under this condition of things the judgment sustaining- the allegations, and decreeing according to the prayer, of plaintiffs’ petition must be changed to one of non-suit, or else the judgment must be avoided and the case remanded.

The effect of a complete and full certificate from the clerk of the court of the first instance precludes dismissal of the appeal, dispenses with the necessity of a statement of facts, or assignment of errors.

20 La. Ann. 213, 234; 18 La. Ann. 261, 282; 17 La. Ann. 319; 15 La. Ann. 420; 28 La. Ann. 815; 35 La. Ann. 1146.

A clerk’s certificate that a transcript is complete, as containing all the evidence adduced, etc., protects an appellant, although the transcript does not contain that evidence.

Grand Lodge vs. Cavanac, Tax Collector, 39 La. Ann. 1109.

If the certificate did not contain the declaration that the transcript contained all the evidence adduced, then must the appellant comply with C. P. 602 and 603 as to furnishing, a statement of facts under xienalty of dismissal of his appeal, or affirmance of the judgment, upon the presumption that the trial judge acted upon proper and sufficient evidence.

But where all the evidence upon which the judge acted is in the record, a statement of facts is not necessary. This record contains all the evidence adduced, if the clerk’s certificate is to be believed, and there is nothing to impeach it.,

It has been held in many cases that the appellate court will affirm the judgment appealed from where no evidence appears in the record, on the presumption that the lower court acted on proper evidence.

It was so held in 22 La. Ann. 73 and 118; in 23 La. Ann. 393 and 504; in 24 La. Ann. 20; in 26 La. Ann. 148 and 734; in 33 La. Ann. 415; and in 34 La. Ann. 631. But in these cases and others it did not appear that the clerk certified to the transcript as containing all the evidence adduced upon the trial.

In 35 La. Ann. 1147, however, it appears there was a certificate appended reciting that the transcript contained all the evidence, etc. Yet the court held it must presume the judge acted on sufficient evidence.

But as against this is Smith vs. Morrison, 21 La. Ann. 135. In that case the clerk certified the transcript contained all the evidence offered and proceedings had upon the trial. But the evidence to sustain the judgment was wanting. The court did not hold it would presume the judge had acted upon sufficient evidence. On the contrary it held that “upon the record as certified we cannot affirm the judgment or dismiss the appeal”, and it reversed the judgment and remanded the cause in order that the evidence wanting might be supplied.

And in Abbot vs. Bell, 12 La. Ann. 132, it was held: — “Where a judgment is taken and confirmed by default, although it expresses on its face that due proof of the demand was made, and the clerics and the judge’s certificates state that the record contains all the evidence adduced on the trial, yet if the evidence in the record is insufficient, a judgment of non-suit will be entered”. (Syllabus.)

We do not find that this appeal can be dismissed; neither do we find that, considering the clerk’s certificate that all the evidence adduced is in the transcript, the judgment should be affirmed.

•Nor yet do we find it possible to pronounce definitely on the cause in the state in which it is. This is so because the parties have failed to adduce the necessary testimony.

Accordingly, under the authority of O. P. 906, we conclude to remand the case.

If the clerk’s certificate had not contained the declaration that all the evidence adduced on the trial of the cause was to be found in the transcript, then would the court here affirm the judgment on the presumption that the court below had rendered the same on proper and sufficient evidence. If the certificate of the clerk was incorrect in the particular mentioned, it was the business of the appellees, for their own protection, to have taken steps for its correction.

It is, therefore, ordered and decreed that the judgment appealed from be avoided, and that this cause be remanded to the court a qua for further proceedings according to law — plaintiffs to pay costs of appeal.

Rehearing refused.


author: Monroe, J.

text:
    No. 13,347.
    Blanche David, Wife, vs. Ludger David, Husband.
    Svllabus.
    Wliere, in a suit ior divorce, an error occurs in the petition, in the Christian name of a person with whom the defendant is said to have committed adultery, and it appears that the individual intended to be described is examined as a witness, in bis proper name, by consent of the parties, with permission of the court, and without objection, but, by reason of a failure, thereafter, to try the case, as originally contemplated, such testimony becomes unavailable, an amendment, correcting the error in the name as it appears in the pleadings, is properly allowed, in order that such witness may again testify for the purposes of the trial, which takes place at a later date.
    APPEAL from the Nineteenth Judicial District, Parish of St. Martin — Voorhies, J.

      Edward Simon and Charles H. Moulon for Plaintiff, Appellant:

      L. 0. Hacker for Defendant, Appellee.
   The opinion of the court was delivered by

Monroe, J.

Plaintiff sues her husband for separation from bed and board, upon the ground that he has publicly defamed her character, and prays that she be awarded the custody of her minor children, allowed alimony pendente lite, and be granted an injunction to restrain the defendant from depriving her of the community property.

Defendant denies the charges brought against him, and alleges that, upon the other hand, he has been treated most cruelly by the plaintiff; that she has beaten him, and has threatened, and attempted to take, his life; that she has committed adultery at various times, and with sundry persons, specified and named in the answer, and that, abobt three years ago, he was obliged to leave the common domicile and has not since returned, though he has continued to provide for his family, lie prays that plaintiff’s demand be rejected, and that he be granted a final divorce and awarded the custody of his children.

It appears that, in order, as far as possible, to avoid publicity, the parties litigant originally agreed, the permission of the court being obtained, that the testimony should be taken in chambers, and the case tried before the judge. And, agreeably to this understanding, the main testimony on behalf of the plaintiff was taken, and nearly all on behalf of the defendant, when the further taking of testimony was interrupted, and, thereafter, the plaintiff, through her counsel, withdrew her consent to that mode of trial, and moved that the case be tried before a jury, and it was so ordered. There was a verdict and judgment for the defendant, and the plaintiff has appealed.

The reading of the testimony which we find in the record is neither pleasant nor morally edifying, and no good purpose would be sub-served by recapitulating, or analyzing it, in detail. It appears that the defendant is not a man of strong- character, but that he has- been a kind and considerate husband and father and has suffered much at the hands of his wife. He had good reason for believing that she was misconducting herself, and the course which suggested itself to him was to speak to her mother and step-father on the subject, and to endeavor to prevent men whom he suspected of violating the sanctity of his home from visiting it. He was, however, unsuccessful in his attempts to put a stop to the evil, and finally abandoned the home, -from which he was unable to exclude it, although continuing to live in the neighborhood and provide for its maintenance. The evidence convinces us, as it convinced the jurors before whom the case was tried, that the plaintiff had been guilty of the offence charged against her.

The testimony of the witness, Homer Derouen, we think was properly admitted. He had given practically the same testimony, when examined outside of the court, perhaps a month before he was called upon to testify in the presence of the jury, and it was made apparent at that time, that his name had been improperly written “Aunel De-rouen”, instead of “Homer Derouen”, in the answer. This error was explained by the affidavit of the defendant’s counsel and its correction was properly allowed. The plaintiff could not have been surprised.

Judgment affirmed.

Eehearing refused.


author: WatKINS, J. Niot-iolls, C. J.

text:
    No. 12,705.
    George H. Wells vs. D. A. Johnston, Sheriff, et al.
    Syllabus.
    The duties assigned to a sheriff are delicate and difficult, and his responsibilities are great; and in the absence of proof having a tendency to show a wanton abuse of authority, it is right that a court should hold an action for damages not maintainable against him, on the ground that he had probable cause to make the plaintiff’s arrest — notwithstanding it be shown to have been a clear case of mistaken identity.

      On REHEABIN0.
    1. False imprisonment is in its nature closely allied to malicious prosecution. ' Two things are essential in order to constitute the offense. First, detention of the person: Second, the unlawfulness of the detention.
    It is not necessary that the unlawful act should be committed with malice or ill-will; consequently, the question of malice is immaterial, except as it may affect the question of damages.
    2. The circumstances and conditions under which a citizen of Louisiana, can be arrested and imprisoned, on a claim that he has committed a crime in another State and has fled from justice, are defined by Act of Congress' and Section 103S of the Revised Statutes of Louisiana, and a sheriff of Louisiana who proceeds to make arrests and an imprisonment without a warrant as provided for therein is liable in damages for the same; want of malice on his part is no justification — it simply mitigates the act.
    APPEAL from the Fifth Judicial District, Parish of Ouachita— Potts, J.

      A. A. Gunby and Lamkin & Millsaps for Plaintiff, Appellant.

      Hudson, Potts & Bernstein for Defendant, Appellee.
   On rehearing the opinion of the court was delivered by Nici-iolls, 0. J.

The opinion of the court was delivered by

WatKINS, J.

This suit was brought against the sheriff, and several private individuals as the sureties upon his official bond for the recovery from them in solido of the sum of $8300.00 as damages for his alleged illegal and wrongful arrest and incarceration in the parish jail for a period of eight days.

The case was tried by a jury, who rendered a verdict in favor of the defendants] and from that verdict and the judgment thereon rendered, the plaintiff prosecutes this appeal — a motion having been made for a new trial on the sole ground that the verdict of the jury was contrary to the law and the evidence, and overruled.

The petitioner represents, that he was peaceably and lawfully engaged in getting out staves at a place about seventeen miles from Monroe, in the parish of Ouachita, when a deputy of the defendant sheriff “arrested him without reading any warrant or having any warrant in his possession”, and carried him to Monroe at 9 o’clock at night and incarcerated him in jail. That at that time the defendant “read to petitioner a warrant for the arrest of Ben Franklin; and notwithstanding petitioner protested and declared that he was not Ben Franklin; and notwithstanding- the said sheriff and his deputy-well knew petitioner and his family, they proceeded forcibly and unlawfully to incarcerate and hold him in jail, illegally, and unlawfully, without warrant of law, and without probable cause, for a period of eight days, when he was released by said sheriff.”

Petitioner charges, that in making- his arrest, the sheriff had no right or cause whatever therefor; but that in so doing “he acted recklessly and wantonly in an effort to make a reward which was said to have been offered for the capture of one Ben Franklin (who was) charged with having- committed murder in the State of Alabama.”

That the sheriff did thus arrest and incarcerate him without having- “the slightest reason to suppose that petitioner was Ben Franklin; and that he had no requisition or papers whatever to authorize or warrant (this) arrest.”

He alleges that he married his wife in the parish of Ouachita in the month of September, 1893, and since that time has resided in that parish, openly and publicly, and has settled homestead and acquired a small amount of property therein; and at the time of his arrest, was engaged in getting out staves — this suit having been filed on the 11th of June, 1897.

Then follow the specific grounds upon which his demand for damages is predicated.

The several defendants unite in one answer and specially deny each and every allegation in the petition contained; and further specially aver, “that the defendant sheriff acted in the performance of the duties of his office, without malice, and upon probable cause.”

The testimony of the plaintiff, as a witness, circumstantially corroborates the allegations of his petition.

It appears from the evidence, that during the progress of the trial in the lower court, the plaintiff was twice arrested under three different warrants'; once as George II. Wells, under an indictment preferred against him by the grand jury of Ouachita, on the charge of obtaining goods under false pretenses; and again under two different warrants, as Ben Franklin, charging him with the commission of miirder in the State of Alabama in the latter part of the year 1891— a date two years prior to that of his alleged marriage in Ouachita parish.

That, contemporaneously with the foregoing, he was likewise arrested, under a warrant and a requisition; and that he was only liberated therefrom under a writ of habeas corpus subsequent to the trial and decision of this civil suit for damages.

There were many witnesses interrogated and who gave their testimony at great length and in detail, with regard to the circumstances of the plaintiffs arrest and incarceration in jail; and of his subsequent release from custody, by the defendant, sheriff, voluntarily. Also, of his subsequent re-arrest under other warrants, and an Alabama requisition as a murderer and a refugee from justice.

That these arrests were made upon the theory that the plaintiff was Ben Franklin of Alabama; and that the sheriff released him upon the ground of possibly mistaken identity.

The plaintiff is one of those persons who has pursued the humbler walks of life, having' always been in impecunious circumstances.

He came to Louisiana a few years prior to his arrest, and lived in comparative obscurity, and was not possessed of many acquaintances.

A rumor was bruited about, that an Alabama refugee from justice was wanted upon a charge of murder, and for whose arrest a reward had been offered by the authorities of that State.

Suspicion pointed the plaintiff out, and straightway one of the defendant sheriff’s deputies came upon him by surprise whilst he and his companions were at work in the woods, and promptly arrested him and carried him to jail; and then for the first time was a warrant for the arrest of Ben Franklin read to him by the defendant, sheriff.

The plaintiff vigorously protested that he was not Ben Franklin, and was innocent of the charge; but his protest was utterly unavailing.

During the time the plaintiff remained in jail, an investigation was set on foot both in Louisiana and Alabama for the purpose of establishing his identity as Ben Franklin. There were some persons who held to the theory of his identity, whilst there were others who were in doubt.

Finally, upon mature deliberation, the sheriff made up his mind to release him from custody; and this suit speedily followed with the result already stated.

That he was subsequently arrested, and again incarcerated in jail under warrants formally issued, and from which plaintiff only procured his release upon habeas corpus proceedings, is a circumstance which has its weight and must be considered in determining- the issue before us.

The suggestion, is offered, that those proceedings were not in good •faith and only,intended to exercise an influence upon the minds of the court and jury in the decision of this suit.

We do not think this suggestion is borne out by the evidence, and the judgment of this court must not be guided by inferences merely.

Under these circumstances, we are pressed to set aside a verdict of a jury, say the judge a quo erroneously refused to grant a rehearing, and render a judgment against the defendants in damages.

We can not see our way to this result.

We do not regard the evidence as having established that the sheriff or his deputies acted without probable cause in making plaintiff’s arrest, and in incarcerating him in jail. The record is barren of evidence tending to show malice on his part.

The sheriff acted 'circumspectly and with due deliberation, and within the bounds of his duty and discretion as a public officer. His duties are frequently delicate and difficult, and his responsibilities are great; and this record furnishes no proof of any tendency on his part to wantonly abuse them.

Judgment affirmed.

Nioitolls, C. J., dissents.

ON Rehearing.

Niot-iolls, C. J.

We are dealing in this case with the arrest by the sheriff of Ouachita, of a citizen of Louisiana, upon a claim made that such citizen had committed a felony in the State of Alabama, when the sheriff made such arrest, without holding in his hand, at the time, a warrant for the arrest.

The district judge having instructed the jury that sheriffs were authorized, under certain circumstances, to arrest, without warrant, parties for alleged commission, in the past, of crime, informed them that the authority and responsibilities of the sheriff were the same, whether the crime was alleged to have been committed in Louisiana, or in some other State of the Union.

It is undoubtedly the duty of the proper authorities of the State to deliver over to justice a person found within its borders, charged with the commission of crime in another State,' but the circumstances and conditions under which this is to be done are defined by statutes.

By an Act of Congress, which will be found inserted on page 204 of the Revised Statutes of Louisiana, it was enacted that “whenever the executive authority of any State in the Union, or o-f either of the Territories Northwest or South of the river Ohio, shall demand any person as a fugitive from justice, of the executive authority of any such State or Territory to which such persons shall have fled, and shall moreover produce the copy of any indictment found, or an affidavit made before a magistrate, of any State or territory as aforesaid, charging the person so demanded with having committed treason, felony or other crimes, certified as authentic by the Governor or chief magistrate of the State or Territory from whence the person so charged fled, it shall be the duty of the executive authority of the State or territory to which such person shall have fled, to cause him or her to be arrested and secured, and notice of the arrest to be given .to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear: But if no such agent shall appear within six months from the time of the arrest, the prisoner may be discharged. And all costs or expenses incurred in the apprehending, securing and transmitting such fugitive to the State or Territory making Such demand, shall be paid by such State or Territory.” • Sections 1038 and- 1039 of our own Revised Statutes declai’e that “when (Section 1038) any person shall be charged on oath of any credible person, before any judge or justice of the peace of this State, with having committed any crime within any State or Territory of the United States, and has fled from justice, it shall be the duty of such judge or justice to issue his warrant for the arrest of such accused, and to proceed to the examination of such case, and commit or discharge the accused, as such judge or justice may determine, provided no person so accused shall be detained in custody exceeding ninety days”, and Section 1039 — “The Governor may in his discretion deliver over to justice any person found within the State, who shall be charged with having committed any crime under the constitution and laws of the United States or of any State or Territory”.

The sheriffs of Louisiana are charged with the duty of vindicating the laws of another State only when that duty is called into exercise under the circumstances and conditions specifically pointed out by law.

In the case before us, it appears that in the Spring of 1892, the grand jury of Clarke county, Alabama, indicted Ben Franklin and Dick Walker for having murdered one Joe Cassidy in 1891.

They were not brought to trial.

’ In 1892 T. J. Broadway, who was a deputy sheriff of Clarke county, came to this State, either on a visit to John and Alexander McKas-kill, planters, living near Monroe, or on account of business relating to, or in connection with them. ITe brought out from Alabama a number of negro laborers for those parties, and while in Ouachita parish he was led to believe that two men living in that neighborhood were Franklin and Walker. On his return to Alabama he informed the sheriff of Clarke county of his suspicions.

Broadway returned to Louisiana in January, 1897. Prior to doing so he had a conversation with Taylor, the sheriff of Clarke county, in reference to Franklin and Walker, for whose capture a reward had been offered, and it was understood and agreed between them that Broadway should attempt to “locate” these men and have them returned to Alabama. Whether the trip to Louisiana was especially fo? this purpose, or whether it was simply a matter to be investigated by him only incidentally, while in Louisiana, for other reasons, does not clearly appear.

Upon reaching this State, Broadway commenced making inquiries which resulted in his reaching the conclusion that the plaintiff in this suit was Ben Franklin, the party charged with murder in Alabama.

Before reaching this conclusion he called upon the sheriff of Ouach-ita, and told him what service he was engaged in. He had then in his possession what purported to be a couple of warrants, directed by the court of Clarke county, Alabama, to any sheriff of the State of Alabama, reciting the fact of the indictment against Franklin and Walker for murder, one warrant authorizing and directing the arrest of Franklin, the other authorizing and directing the arrest of Walker, and he had also in his possession a letter from the sheriff of Clarke county, in which a description was given of Franklin. These papers were shown to the defendant. In the course of this interview the defendant says he understood Broadway to say that he had been “working up” the case for some time, and that the parties named were then in the western part of Ouachita parish. Broadway asked defendant whether, when he got them located, he would let his deputy, Mr. Griffon, go with him to malee the arrest, and defendant told him, “Yes.” Defendant testifies that Broadway came after this to see him, and told him he had located the men, and that he was ready, and that his deputy, Griffon, and Broadway went out and made the arrest. lie says that Broadway told him he did not know Franklin personally.

We ascertain from the testimony that at the time of his arrest the plaintiff was engaged in getting- out staves, having- several employees working- under him, one a man by the name of Walker.

On reaching the place where the arrest was made, a few words passed between the jiarties, and after Broadway’s looking- at the plaintiff and nodding, the deputy sheriff arrested him, and upon Walker’s giving- his own name, he, also, was arrested, and the parties were taken to Monroe as prisoners. • No warrant was shown to the parties at the time of their arrest, nor were they then informed what the charge against them was.

On reaching- Monroe they were taken to a restaurant for supper and the defendant sent for. After supper the party proceeded to the jail, and there defendant read them the warrants against Franklin and Walker, which Broadway seems to have given him — the one as to Franklin bearing, it may be stated, no seal upon it.

Defendant asked the plaintiff and Walker whether they could identify themselves, up to and back of the period of the murder, saying that if they could do so, he would release them. Walker stating that he was known in West Monroe was sent there under guard- and having satisfactorily shown that he was a native of Union parish, he was discharged.

Plaintiff not being- able to so identify himself, was placed in the cage in the prison, May 18th, 1897, and’remained there seven or eight days, at the end of which time the defendant, of his own motion, discharged him. In the interval between the two dates, a photograph' of the plaintiff had been taken and forwarded to the sheriff of .Clarke county, and it was by reason of a letter from him after receipt of the photograph, expressing- doubts as to the identity of the plaintiff, that he was released.

This suit, filed June 11th, 1897, followed. It went to trial on November 16th, 1897.

On the 20th of November, 1897, an indictment was found against the plaintiff as George II. Wells, charging him with having obtained a wag-on and yoke of oxen from one Alfred Elmore on false pretenses. On November 26th, 1897, the District Attorney entered a nolle prosoqui in the case.

On the 22nd of October, 1897, Broadway made an affidavit before Charles Schultz, Justice of the Peace of the Third Ward, Parish of Ouachita, in which he deposed that Ben Franklin, alias George Wells, murdered one Joe Cassidy in Clarke county, Alabama, in the latter part of the year 1891, and prayed that said Ben Franklin, alias George Wells, might be apprehended and held to answer said complaint.

On the same day the justice of the peace issued a warrant to the sheriff of the parish of Ouachita commanding him to forthwith apprehend Ben Franklin, alias George Wells, of the parish of Ouachita, and take him before said justice to answer said complaint. This warrant was placed in the hands of the sheriff, but was not executed at the time of the trial, defendant stating that his reason for not acting was that he was waiting for requisition papers which had been applied for.

In fact, on the 18th of November, 1897, the Governor of Louisiana issued a warrant in which he authorized the sheriff of the different parishes of the State to apprehend Ben Franklin, who stood charged with the crime of murder and as being a fugitive from justice from Alabama, and to deliver him to R.' L. Broadway, the duly authorized agent of the State of Alabama, the warrant reciting that it was issued by reason of the production to him of a lawful requisition to that effect from the Governor of Alabama and upon the production to the Governor of Louisiana of the requisite evidence to justify the same. The requisition of the Governor of Alabama bears date the ?.3th of November, 1897.

On the 2nd of November, 1897, upon the application of the plaintiff, a writ of habeas corpus issued from the district court for the parish of Ouachita, comamnding the sheriff of the parish of Ouachita, in whose custody plaintiff alleged he was illegally detained by said sheriff as being Ben Franklin, charged wtih murder in Clarke county, Alabama, when he was, in fact, not Ben Franklin, to bring the plaintiff before the judge of said court and to state the reason why he kept plaintiff imprisoned and deprived of his liberty.

The- sheriff answered stating, he held relator under the above referred to warrant of the Governor of Louisiana and the requisition of the Governor of Alabama, and averring that he had reason to believe and did believe that the name of George Wells was fictitious and that the party in his custody was in truth and fact the party for whom the warrant was issued and the one against whom the charge of murder was pending in the State of Alabama.

On the 27th of November, 1897, the district court, after hearing evidence in the habeas carpus case, rendered judgment in favor of relator, and ordered the discharge of the plaintiff.

In the letter of January 18th, 1897, from the sheriff of Clarke county to Broadway, written prior to plaintiff’s arrest (the same letter which defendant speaks of as having been shown to him, by Broadway) after giving a description of Franklin, among other things he says: “If I send you requisition papers can you have them arrested and put in jail?” And again, “I sincerely trust that you have the right men located, and as soon as you get this description of Franklin, if its suits, you can get the sheriff to arrest them; please wire me and I will get the necessary papers and get you to have the arrests made.”

The evidence shows that the plaintiff, while under arrest and in jail, was kindly treated, and the defendant in his testimony, declares that he had no malice at all towards the plaintiff, and in so' far as that word would be used in the sense of personal ill-will, or dislike, or prejudice, that is doubtless true.

Defendant argues, in his brief on rehearing, that the courts of this State have never drawn the distinction between actions for false imprisonment and those for malicious prosecution, which the c'ourts in the common law States have done, and that the requirements of malice and want of probable cause, called for in an action for malicious prosecution as the basis for an action for damages, is likewise called for in an action for false arrest and imprisonment.

He also claims thát if there should be a difference in this respect, that the plaintiff, by the use of the words, “maliciously”, and “without probable cause”, has elected to make the present an action for malicious prosecution, and must be governed by its rules and prove his allegations as to malice and want of probable cause.

AVe do not think that the plaintiff charges the defendant with having originated a prosecution against him, either malicious or otherwise, but that at the instance and upon the representation of other parties he,’ the sheriff of Ouachita parish, had first illegally arrested him and subsequently had illegally imprisoned him and kept him imprisoned.

While our Code in dealing with offenses and quasi offenses has used very general language declaring, in Article 2315 of the Civil Code, that “every act of man that causes damage to another obliges him by whose fault it happened to repair it”, and has not attempted to fix or classify faults in that particular article, our courts have constantly recognized that what might be regarded as legally a fault under one set of circumstances would not be so under another, and that acts done by a person holding certain relations or capacities might be perfectly justifiable^ which, if done by another in a different capacity, or holding a different relation, would be attended by penalties, and they have denied, harrowed or broadened relief as different cases were presented in which a fault was charged according to known and fixed rules applicable to them.

We are of the opinion that a sheriff, the exercise of whose authority is dependent upon the existence of conditions precedent, and who takes action in the absence of the same, occupies as to liability a very different position from one who is hampered by no such conditions, but has had entrusted to him the duty of acting for the best interests of the community in which he lives, under differing and varying cir■cumstances, according to his best judgment and discretion.

Examination of this record and of the law applicable to the state of facts which it exhibits has satisfied us that the arrest of the plaintiff, by Deputy Sheriff Griffon, at the instance of Broadway, was without legal authority, and so, also, was the imprisonment of the plaintiff by the sheriff, himself, in the jail at Monroe, after his arrest.

This is not a case of malicious prosecution, but of false arrest and false imprisonment by the sheriff.

False imprisonment has been defined to be “the unlawful detention of a person contrary to his will either with or without process of law'”, but the Supreme Court of Wisconsin declared in Murphy vs. Mars-ton (58 Wis., 276), that “an imprisonment, even though caused by malicious prosecution, is not false, unless extra judicial or without, legal process”.

In its nature it is closely allied to malicious prosecution. Two things are essential to constitute the offense. First, detention of the person; second — the unlawfulness of such detention.

The unlawfulness of the detention is the gravamen of the offense; hence, it may be committed without malice on the part of the person causing the detention. It is not necessary that the unlawful act (false imprisonment), be committed with malice or ill-will, or even with the slightest wrongful intention; consequently, the question of malice is immaterial, except as it may affect the question of damages.

The wrong constituting false imprisonment, differs essentially from the wrongs constituting malicious prosecution, malicious arrest, assault, and assault and battery, though all these wrongs may sometimes be united in one comprehensive and aggravated wrong.

•It has been held, that a sheriff is liable for arresting the wrong person, even though it be made under an honest mistake, and that the unauthorized continuance of an imprisonment, continued beyond reasonable bounds, though lawful at first, becomes a false imprisonment.

The above principles, drawn principally from the American and English Encyclopaedia of Law, volume 7, verbo, False Imprisonment, pages 663, 664, and supported by citation of numerous authorities, are, we think, very generally accepted as correct.

The mere fact that, in the statement of a cause of action, plaintiff uses allegations which would cause the action to be sustainable as one for malicious prosecution, would not cause it to fail as to one for false imprisonment, where the other averments are of a character to maintain it as such.

Though the pleadings and the evidence might not warrant a judgment for damages for malicious prosecution, they might justify a judgment for false imprisonment.

The presence in plaintiff’s petition of charges against defendant of having acted maliciously and without probable cause, was doubtless by way of aggravation and to affect the quantum, of damages.

We are of the opinion that a Louisiana sheriff, applied to to arrest and imprison a person as having committed a crime in another State, should, before taking action, require the applicant to conform to the requirements of Section 1038 of the Revised Statutes, by making the affidavit therein referred to, and causing the warrant therein provided for to be issued.

It is true that the necessity of even that situation might throw upon the sheriff the onus of arresting, for the purpose of an examination, the person designated in the warrant, but the risk, under such circumstances, would be legally imposed and not a self-assumed responsibility, and would be tested, as to results, by that fact. We do not mean to say that exceptional cases might not occur which, from their special features, would justify a sheriff in departing- from this course, but the present is not one of such cases.

We are of the opinion that there was no reasonable ground in this case for summarily arresting- and imprisoning the plaintiff, at the instance of Broadway and upon the mere suspicion which he entertained as to the plaintiff and Ben Franklin being one and the same person.

He confessedly had never seen him, and even if he had knowledge of any facts on which such a suspicion rested, they do not seem to have been communicated to either the sheriff or his deputy.

The whole matter seems to have been recklessly turned over to the judgment of Broadway — upon whose nod the deputy sheriff acted.

If Broadway had in his possession a description of Ben Franklin, the deputy should have called for it and acted on that description on his own judgment and not upon that of Broadway.

Tt is intolerable that a citizen of Louisiana should be summarily arrested and imprisoned upon the mere suspicion of a party acting as Broadway evidently was in his own personal interest, to secure an expected reward.

The sheriff in this ease seems to suppose it to have been his right to hold the plaintiff in custody until he should have affirmatively shown his antecedents and former history. Plaintiff was called upon to do nothing of the kind. ' On the contrary, it was the sheriff’s duty to justify his arrest by proof of the identity of plaintiff with Ben Franklin.

There vjas nothing in the circumstances of this particular ease to make it an exceptional one. Plaintiff had.been living openly in' Ouachita parish for a long time as a citizen, had bought property and married there, and was giving no sign of an intention to become a fugitive. There was no necessity whatever for the unusual and hasty action taken in the premises. We are satisfied under the evidence that plaintiff is not Ben Franklin. The sheriff in releasing him of his own motion, recognized by his conduct that his action had no basis to rest upon, and nothing occurred afterwards to justify a change of opinion on that subject. Defendant’s counsel suggests that plaintiff in his testimony has given a suspicious account of himself contradicting- his own witnesses as to his past life.

We do not think the question before us is as to who the plaintiff may really be, but it is as to whether he be Ben Franklin or -cot.

If lie be not Franklin, it is immaterial for the purposes of this litigation who he may be. There was ample time between the release of plaintiff, the institution of this suit and the judgment therein, to have established through Alabama witnesses, if it was possible to have done soj that plaintiff was really the person charged' with the murder of Cassidy.

We put no faith whatever in the testimony of the three negroes placed on the stand. We have referred 'in this opinion to the judgment of the district court releasing plaintiff under the writ of habeas corpus. That judgment is not strictly before us, for it occurred after the judgment in this case was rendered, but it has been referred to by the defendant in his brief, and the only effect of that fact is to have confirmed an opinion which would have existed without it.

We have no reason to suppose that defendant acted in this matter maliciously, that is, with the intention of injuring the plaintiff. We do think, however, that he acted without legal authority, and in utter disregard of plaintiff’s personal rights, though under a mistaken idea as to what those rights were and as to how far his own authority extended.

Plaintiff cannot be made to suffer for defendant’s misconceptions upon those subjects.

We do not think this is a case where plaintiff is restricted to only actual damages. Those damages have not been very clearly shown, but we feel ourselves authorized, as matters stand, to close this litigation by fixing an amount as damages which will do justice between the parties. In fixing the amount we think it proper to say that we have considered, by way of mitigation, the absence of any actual malice by defendant towards plaintiff.

The claim against the sureties on defendant’s bond has not been alluded to in this court, is not pressed, and we presume plaintiff’s real attack is directed against the sheriff himself.

For the reasons herein assigned, it is hereby ordered, adjudged and decreed that the verdict of the jury be set aside and the judgment herein appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that plaintiff, George II. Wells, do have and recover judgment against the defendant, David A. Johnston, for the sum of three hundred dollars with costs in both courts.

WatkiNS, J., dissents.