author: Todd, J.

text:
    No. 9907.
    Succession of Térence Chaler.
    When two beneficiary lieira are contestants for the administratorship of the ancestor’s succession, in the choice of the administrator a large discretion is vested in the judge who makes the appointment and, unless manifestly wrong, his conclusion will not be disturbed.
    Under art. 1043, he must select the “ moat solid.”
    To determine this question of “solidity,” the judge should look to the business capacity, experience, property and integrity of the respective applicants.
    If the succession is insolvent or its solvency questionable, to the heir who is a creditor, the preference should be given — other things being equal — to the one who is the debtor.
    Asa general rule, the judge should be guided to some extent in making his appointment by the preferences of the other heirs and creditors.
    Where an inventory has been taken under an order of the court, and it is filed therein, there is no warrant for the clerk on an ex parte application of one of the heirs to order the taking of another inventory.
    The inventory first taken and filed was properly recognized in the true inventory of the .sue cession.
    PPEAL from Pierson, J. the Eleventh District Court, Parish of Natchitoches

      Jack & Dismukes and J, E, Breda for the Appellant.

      Scarborough & Carver for the Appellee.
   The opinion of the Court was delivered by

Todd, J.

The only questions presented in this case relate to tl administratorship of the. succession and the proper inventory of tl same, there having been two inventories made.

Clialer died on the. 16th of July, 1886, intestate. Mrs. Grimmer, daughter of the deceased, joined by her husband, oil the 24th of sar month applied to be appointed administratrix of the succession. Tl application was opposed by Mrs. Lattier, a widow and another daug ter of the deceased.

The first inventory taken showed the value of the succession to $29,071.76. The one subsequently made on the application of M Grimmer amounted to $15,726.95.

The judge a quo, after hearing quite a number of witnesses touch: the respective qualifications and claims of the two applicants for administratorship, and weighing the testimony, sustained the opp tion of Mrs. Lattier and appointed her administratrix. He also rec nized by his judgment the first inventory in date as the inventor the succession.

We have reviewed with the closest attention the evidence in record, and considered and weighed with care the few legal provisions of law hearing on the subject, and we cannot say that the judge erred in his conclusion.

Tlie main provision of law governing contests for the administrator-ship between beneficiary heirs, as in the present case, is Article 1043, O. C-, which reads as follows :

If there be two or more beneficiary heirs of age, and present in this State, the judge shall select one or two, whom he shall consider the most solid, for the administration of the succession.”

This article leaves the two questions, whether he shall appoint one or two of the heirs, and as to the solidity of the applicants, largely to the discretion of the judge.

The judge in determining this question of solidity should look to the business capacity, experience, property, integrity and everything else that goes to make up the personal fitness for the appointment of the respective parties.

Mrs. Lattier is the oldest child of the decedent, who lived to an advanced age, and who for the last eighteen years of his life was an invalid, confined to his house during this time. Mrs. Lattier lived with ler father and administered to his wants and necessities, and in some neasure assisted him in his illness, and to some extent became acinainted with the condition of his affairs. She is described by some >f the witnesses as possessing fair business capacities. Besides, left a vidow with an infant son, whom she reared with care and had him 'ell educated. She had some property of her own, which she had dministered successfully. She still owns property and is solvent, nd claims to be a creditor of her father for $1000, an amount coming her from her mother’s estate. She seems to be the choice for the ppointment of a majority of the heirs and the creditors. Mrs! Grim-er is not shown to be superior in her qualifications for the office in ly respect to Mrs. Lattier, if her equal; but it is urged that the sistance and co-operation of her husband as co-administrator would > greatly to the advantage of the succession, and fairly entitle the ife and husband to a preference over Mrs. Lattier. We are not connced of this. The evidence satisfies us that Mr. Grimmer is a man intelligence and some business experience, but the manner in which is.shown to have conducted his own affairs does not afford the ■ongest guarantee that his administration of the succession would be prior to that of Mrs. Lattier. It appears, too, that Grimmer is inbted to the succession, while we believe that Mrs. Lattier is a cred-r. This circumstance, it is urged, is a matter of no significance whatever, since the contest is solely between the heirs, and the sueccession is solvent. But, from the counsel’s standpoint and that of his client, the succession is not solvent, but is clearly insolvent, since the inventory made on Mrs. Grimmer’s application amounts to $15,000, while the claim of one creditor alone exceeds $17,000.

The.true inventory of the succession is the one first taken and filed. The other was made under an ex parte order of the clerk, and was without any warrant of law.

We think the judgment of the lower court has done full justice between the parties, and it is, therefore, affirmed.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 9909.
    Heirs of Gee vs. G. W. Thompson.—On Third Oppositions.
    The Supreme Court has no jurisdiction over a controversy for the distribution of the proceeds of a judicial sale made to satisfy a judgment creditor, where the claim of the latter does not exceed §2000, the amount of the sale is less than that sum and the aggregate of the sums claimed by the third opponents is inferior to the proceeds of sale.
    Consent cannot confer jurisdiction ratione materice,
    APPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J.

      Jack á Disnmkes for Plaintiffs and Appellants.

      Scarborough & Oarver for Intervenors and Appellees.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Bermudez, C. J.

The heirs of Gee move to dismiss this appeal, on the ground that the amount in dispute, or the fund to be distribute does not exceed $2000.

As judgment creditors of Thompson for $1800, they seized propert of his, which, when sold, realized $1925.27, out of which some $32 were paid to laborers who had recovered judgment in another cas which is not before the Court.

Three of Thompson’s creditors have filed third oppositions for pay ment, by preference, of sums aggregating $1253.83.

Counsel for the third opponents who are appellants, contend th although it he true that the cotton seized, realized the stated sum $1925.27, still, as that circumstance only appears from accounts of sale filed after judgment and appeal, it ought not to he a factor in the matter, because, by agreement, the cotton was estimated at $35 per hale, making $2275, as the basis for trial and distribution.

If this were so, it would he no answer to the charge that the fund to be distributed does not exceed $2000 and that this Court has no jurisdiction over it.

It is a well settled rule of practice that, where the matter in dispute does not appear from the pleadings or evidence to exceed $2000, proof of some kind, even an affidavit may be offered, either before or after appeal, to show the fact.

There is no reason why a similar practice should not likewiee prevail, to show that the property seized, though valued, during the trial, at more than 82000, has subsequently, when sold, realized less than that amount.

The fact of the sale and of the sum realized thereby, which constitutes the fund to he distributed, may be shown by like proof and affidavit.

In the present instance, it appears not only by the accounts of sale, but also by affidavit and by what is stronger and conclusive, by the admission of the appellants themselves, that the proceeds of sale amount to some $1600 only, which is the fund to be distributed.

The agreement, to which appellants refer, was made, in the course of the trial of another ease, not before the Court now, to authorize the sheriff to settle with hands in accordance with the decree to he rendered in that case and to direct payment pro rata with the amount realized, whether the cotton brought, more or less than $35 a hale.

Even if made in this case, on the trial of the oppositions of the ap>ellants, it could prove of no relief to them, so far as the jurisdiction f this Court is concerned.

Conventions of parties, whatever they be, cannot vest this Court yith jurisdiction over a controversy, when, under the facts, the Contitution says it shall have none ratione materia.

As from no standpoint, can this Court render a judgment affecting fund exceeding $2000, it is manifest that it has no jurisdiction over e controversy.

Appeal dismissed.

Watkins, J. recused.


author: Fenner, J.

text:
    No. 9903.
    Theodore Wunstel, Tutor, et al. vs. Joseph and Christopher Landry et al.
    An action by one lieir against his co-heirs of a common ancestor, to declare the simulation of. a transfer made by the ancestor to two of said heirs of immovable property, to bring said immovable into the succession of said ancestor, and for a decree of partition thereof amongst all the heirs, partakes of the nature of a proceeding in rem in such manner as to authorize the bringing in of a oon-resident heir by appoiment of a service on a curator ad hoe.

    APPEAL from the Twenty-third District Court, Parish of Iberville, Talbot, J.

      Alex. Hebert and Okas. P. Moore for Plaintiffs and Appellants.

      David N. Harrow and Samuel Matthews for Defendants and Appellees
   The opinion of the Court was delivered by

Fenner, J.

This is an action brought by one heir against her coheirs of common ancestors, praying the following relief, viz:

1. To declare the simulation of a sale of certain immovable property made by the common ancestors to two of the heirs and to have said property decreed to belong to the successions of said ancestors.

2. To have the two heirs, who were the alleged simulated vendees, pay into the mass of said successions the amount of the revenues collected by them during their possessions.

3. For a decree of partition of the aforesaid property and funds amongst all the heirs.

One of the heirs, Christopher Stephen Oroutt, being a resident of the State of Illinois, a curator ad hoe was appointed to represent him, who filed a peremptory exception to the effect that said absentee could not validly he brought into court as a party to such au action by service on a curator ad hoc.

From a judgment sustaining the exception and .dismissing the suit as to said absentee, the present appeal is takeu.

We think there was error in this judgment.

The invalidity of substituted service through a curator ad hoe as a means of bringing an absentee into court when not attended by direct process against his property in the State, is restricted to merely personal actions, and does not extend to proceedings partaking of the character of proceedings in rem.”

By this is meant, not a proceeding which is strictly and technically a proceeding in rem, but one partaking of that character.

The Supreme Court of the United States, in the leading case on this question, has drawn the distinction very clearly, thus: “It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and lias for its object the disposition of the property, without reference to the title of individual claimants; but iu a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are cases instituted to partition real estate, foreclose a mortgage or enforce a lien. So far as they affect property in the State, they are substantially proceedings in rem in the broader sense which we have mentioned.” Pennoyer vs. Neff, 95 U. S. 734; Ice Co. vs. Loughlin, 35 Ann. 1184.

In a more recent case we have held that a suit for dissolution oí a sale of an immovable and for possession thereof partakes of the nature of a proceeding in rem iu this sense, and that non-resident defendants may be cited through a curator ad hoc. McKenzie vs. Bacon, 38 Ann.764.

It is very clear from our preliminary statement of the issues, that this case falls within the principles above stated, except possibly as to the demand for revenues, as to which we need express no opinion, because the absentee herein is not one of the heiis against whom the revenues are claimed, and has no interest therein except as a beneficiary.

It is therefore ordered, adjudged and decreed that the judgment appealed from sustaining the exception of the curator ad hoe he avoided and reversed; and it is now ordered and decreed that said exception be overruled, and that the case be remanded to be proceeded with according to law.


author: Poché, J.

text:
    No. 9929.
    Mrs. Sarah E. Marshall vs. H. B. Holmes, Sheriff, et al.
    A party oast in an action of nullity of twenty-tour judgments, in none of which, the amount in dispute exceeds $2000, brought in oue petition, cannot sustain an appeal in the Supreme Court, although the amountinvolvod in all the judgments together does exceed $2000.
    A cause not appealable in amount to the Supreme Court for the review of the judgment originally rendered therein cannot be made appealable-there to review the judgment-rendered in an action of nullity in the same, cause.
    APPEAL from the Eighth District Court, parish of Madison. Deloney, J.

      Walton Farrar, Wade JR. Young and J. 6. JHawIces for Plaintiff and Appellant.

      Stone <£ Murphy for Defendants and Appellees.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff, owner of a plantation, was made a co-defendant with twenty-four of her tenants, in twenty-four different suits instituted by D. Mayer, for the recovery of various sums of money due him by the tenants respectively, on account of advances made to them in working animals, and general plantation supplies, and for the enforcement against Mrs. Marshall of an alleged obligation on her part to deliver to Mayer a sufficient quantity of cotton to satisfy the amount due by each of her aforesaid tenants.

In one of the suits, entitled D. Mayer vs. William Talliaferro, the following agreement was entered into by counsel of both parties:

In this case it is agreed between plaintiff and defendant, through their counsel, that this shall be test case of all the cases numbered from 595 to G18, inclusive of both, and the final decision of this case shall be decisive of all the issues involved in said cases of like character as those, in the case being tried, and at the April term of the District Court judgment by said court shall be rendered upon the issues as decided and passed upon in this case in the appellate court.”

Erom a judgment against her in the District Court, Mrs. Marshall took an appeal to the Court of Appeals, where the judgment was amended in some particulars, and otherwise affirmed.

Whereupon the District Court entered a judgment in conformity with the conclusions of the Court of Appeals in each of the twenty-three other suits embraced in the agreement of counsel hereinbefore referred to. Mrs. Marshall then had recourse to the present suit, by means of which she seeks to jnjoin the execution, and to obtain a decree declaring the nullity of the twenty-four judgments rendered as above set forth.

She prosecutes this appeal befoi e us from a judgment of the District Court rejecting her demand and dismissing her action with damages of twenty per cent on the amount of each of the judgments aforesaid-

The point made by appellees’ counsel to the effect that this Court has no jurisdiction ratione materice is well taken, and hence it must be sustained.

The highest amount involved in any one of the twenty-four suits is $361 20. Hence it is clear that not one of the judgments could by itself have been appealed to this Court.

This is conceded, in fact, by appellant herself by taking her first appeal from the judgment in the Talliaferro case, which she brought to the Court of Appeals, although, under the argreement of her counsel, the final judgment rendered there was practically a decision of the twenty-three other cases.

Can she now vest jurisdiction in this Court, in an action of nullity by cumulating twenty-four judgments in one petition 1

The question is answered in the negative by the very nature of things as well as by our jurisprudence.

A similar attempt was made in the case of Provost and wife vs. Creig et al., 5 N. S. p. 87.

It was disposed of in the following manner:

“It appears that each of these judgments was given for an amount less than that of which this Court can take cognizance. The attempt therefore made by this mode of proceeding to obtain a review of these judgments, and to have their nullity established, is an attempt to have that done indirectly which the law will not permit to be done directly. We are of opinion that we cannot in this way take cognizance of cases of which the Constitution and the law have denied us jurisdiction.”

The same doctrine was enforced in the case of the United States vs. Cochran et al., 5 Rob. 120, in which the Court said : This Court, on more than one occasion, have decided that an appeal will not lie from a judgment rendered on one petition enjoining executions on several judgments, each for less than three hundred dollars, rendered in separate suits, although the judgments added together amount to more than three hundred dollars.” See also Armitage vs. Barrow, 10 Ann. 78, and Stevenson vs. Weber, 29 Ann. 106.

Common sense and logic alike point to the rule that a cause not appealable in amount to this Court for the review of the judgment rendered therein, cannot be made appealable here to review the judgment rendered in action of nullity in the same cause.

In the case of Denegre vs. Moran, 36 Ann. 423, the rule was formulated in the following language : “ The Supreme Court has no jurisdiction over a suit in nullity to annul a judgment rendered in a case in which the amount in dispute is less than $1000. It is immaterial what the grounds of uullity be.”

The action of this court in entertaining the present appeal would practically be the assumption of appellate jurisdiction of a cause which, under the Constitution, belongs to another appellate court, and would involve the court in an attempt to review a final judgment rendered by the proper Circuit Court of Appeals.

Under the conclusions herein announced the appellant is not deprived of her constitutional right of appeal; she is merely required to retrace her steps from the incompetent to the proper tribunal.

It is therefore ordered that this appeal be hence dismissed at appellant’s costs.


text:
    No. 9902.
    S. P. Spencer, Adm., et al. vs. A. C. Lewis, Adm., et al.
    Since the amendment to article 2289 O. 0., forced lieirs are not restricted in their right to annul simulated contracts of those from whom they inherit by parol evidence, to their legitime. The right of action in such case is now unlimited.
    Such an action is not barred by the prescription of one, five or even ten years.
    Where a party dies holding property under a simulated title, and devises his estate to a universal legatee, such universal legatee succeeds to the testator’s rights with their defects and is charged with his author’s defects, infirmities and had faith.
    APPEAL from the Tenth District Court, Parish of Red River, . Hall, J.

      Sa/m’l A. Hall for Plaintiffs and Appellees.

      J. H. Pierson for Defendants and Appellants.
   The opinion of the Court was delivered by

Todd, J.

Plaintiffs, as the legal representativos of W. B. Slewart, sue to recover tlie lands described in the petition, and to have declared simulated a conveyance of these lands from Stewart to Isaac A. Caldwell, and to avoid the testamentary devises of the lands by Caldwell to his wife and by her to one J. C. Hunter, whose succession is one of the defendants represented by an administrator.

There was judgment in favor of the plaintiffs and defendant appealed.

The defenses urged to the action, besides the general issue, are : ' 1st. An exception of no cause of action; next, the prescription of one, five, and ten years.

The cause of action is so distinct and clear that it is really unnecessary io discuss the exception. Counsel in filing it could only have, had in mind the question of the inability forced heirs to recover, in the ahsenee of a counter letter, property conveyed by their ancestor through a simulated sale, or rather to establish such simulation by parol evidence, beyond their legitime. Such contention is, of course, without force since the amendment of article 2239, C. C., was passed. Thai amendment is in the following words:

“But forced heirs shall have the same right to annul absolutely and by parol evidence the simulated contracts oí those from whom they inherit, and shall not be restricted to the legitime.”

The evidence leaves no doubt respecting the simulation charged.

Stewart, after the sale, remained in possession of the property, and received its revenues and sold portions of it with the knowledge of Caldwell. It was a sale omnium bono rum and both Caldwell and his wife, to whom it was conveyed by will, always recognized Stewart’s ownership of the property.

The simulation seems really not to be seriously controverted.

The prescription of one year does not apply to an action of this character. It is one in declaration of simulation. This prescription only X’elates to the action of nullity directed against a real but fraudulent contract.

Just as little applicable is the prescription of five years.

There has been no argument, oral or printed, in behalf of the defendants to enlighten us on this subject. This plea of the prescription of five years, suggest the idea that counsel might have regarded this action as one attacking the wills of the Caldwells, by which this property purports to have been transmitted. It is not an action to cancel a will, ner can the prescription be invoked to cure an absolute nullity in the titles of the testators to the property. 13 Ann. 574; 25 Ann. 98.

Nor will the prescription of ten years avail the defendants. This ■ plea is filed in behalf of the universal legatee under the will of Mrs. Caldwell.

It is fully settled that a universal legatee succeeds to the testator’s rights with their defects, mecedit in vitia et virtutes, and is charged with his author’s defects, infirmities and bad faith. Griffin vs. Blanc, 12 Ann. 5; Gaines vs. City, 6 Wall. 642; 12 R. 553; C. C. 3493.

This disposes of all the issues in the case. They were properly decided in favor of the plaintiffs.

Judgment affirmed,


text:
    No. 9863.
    The State of Louisiana vs. Sam Thomas.
    Tn oase of loas of the original information in a criminal cause, a duly certified copy thereof, taken from the record hook, may be substituted therefor, upon which copy the trial may proceed. Act 17 of 1878.
    APPEAL from Twentieth. District Court, parish of Lafourche. Knobloch, J.

      M. J. Ounningham, Attorney General, and E. A. O'Sullivan, District Attorney, for the State, Appellee.

      John S. JBilKu, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Act No. 17 of 1878 provides as follows :

l< That section 474 R. S. be amended and re-enacted, so as to read as follows: * * * * • Tt shall be the duty of the clerk of court within ten days after the adjournment, of any term or session of court, at or during which any bill of indictment, information or bail bond, have been filed, to record in a carefully bound book kept for that purpose, all such bills of indictment, information and bail bonds, and in case of the loss, destruction or abstraction from such court, of the original of any such recorded bill of indictment, information or bail bond, it shall be the duty of the judge of the District Court, on proof of such loss, destruction or abstraction, to order that a certified copy from such record of said original be substituted for the original, and that the trialaud further proceedings in such case be had as on the originals of such lost, destroyed or abstracted indictment, information or bail bond.”

The original information in this case having been lost, and proof of said loss made, the Court ordered a certified copy of the record of said original to be substituted, and the further proceedings to be had thereon. The defendant excepted to going to trial on such copy, and, after conviction, filed a motion in arrest on the same ground.

Both were overruled by the judge a quo, and with manifest propriety.

The counsel for accused has not favored us with any argument in' this Court in support of his appeal.

Judgment affirmed.


author: Watkins, J.

text:
    No. 9865.
    The State of Louisiana vs. Robert Hébert.
    An application for a new trial, for the purpose of proving the insanity of the accused, must be supported by evidence tending to substantiate the mental aberration of the accused, else the trial judge may decline to grant it.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Burgess, J.

      M. J. Cunningham, Attorney General, and L. D. Beale, District- Attorney, for the State, Appellee.

      E. W. Robertson and H. F. Brunet tor Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

The accused was indicted for the larceny of a cow, anil from a verdict of guilty and sentence by the court to imprisonment at hard labor, has appealed.

He rests his claim to relief on three bills of exception.

T.

Counsel for the accused fije a motion for a new trial on the sole ground “ that since the trial of this cause, defendant has discovered evidence which he could not obtain before. That his counsel has been informed and believes that, from circumstances related, the accused has been bereft to a great extent of the exercise of his mental faculties ; that counsel is prepared to prove this and other facts by competent witnesses; that the conduct of defendant has been so strange and unreasonable as to induce them to believe that his intellect is seriously affected, and that he is not responsible legally for his conduct, etc.”

He requested the court to dispense the accused from making affidavit, which was permitted by the judge, and for the following reasons refused to grant the application, viz : I consider the application as if sworn to; asked counsel if he desired to introduce evidence on the motion, which he did not do ; and after argument for plaintiff I overruled the motion.”

The conclusion and ruling of the trial judge was manifestly correct.

II.

The accused objected to the introduction on the part of the State of any evidence tending to rebut certain testimony elicited on cross-examination of his witnesses. Tins evidence lias not been annexed 1o the. bill, and cannot, of course, be considered. But, if we. are to consider the. abstract question of law, we hold it untenable.

III.

The accused reserved another bill of exceptions, without any evidence annexed, and of which the trial judge says in his assignment of reasons, viz: The evidence offered by the State was in rebuttal of the statement made by Gamble, a witness called by defendant.”

The objection is not serious, and is completely covered by preceding paragraph.

IY.

A motion in arrest of judgment was filed ex industria, assigning u errors apparent on the face of the record,” but which are, not designated, and are not apparent.

Judgment affirmed.


text:
    No. 9834.
    The State of Louisiana vs. B. F. Smith.
    This Court has no jurisdiction of a criminal case wherein a fine of three hundred dollars has not been actually imposed ; and when the crime charged is not punishable with im • prisonment at hard labor in the penitentiary. State vs. J. Mack Smith, recently de cided, is affirmed.
    PPEAL from the Fourth District Court, Parish of Jackson. Bridges, J.

      M. J. Ounmnghmn, Attorney General, for the State, Appellant.

      B. FI. Kidd, for Defendant and Appellee.
   The, opinion of the Court was delivered by

Watkins, J.

The State, appeals from a judgment quashing an in - dictment against the accused for retailing liquor without a license, contrary to the provisions of R. S. Sec. 910, on the exception of the accused to the effect that same, was repealed by Act 83 of 1886.

'Phe penalty provided for such a.n offense, is a fine of not less than one, nor more than five hundred dollars, and, in default of payment, imprisonment of not less than fifteen days, nor more than four months.

No fino has been actually imposed ; and the accused could not, under the law, be sentenced to imprisonment at hard labor. Hence, this Court has no jurisdiction of the appeal, and appellee’s motiou to disniiss the appeal is sustained. State vs. J. Mack Smith, just decided and unreported, is affirmed.

Appeal dismissed.


text:
    No. 9919.
    Mechanics and Traders’ Insurance Company vs. Louis Lozano.
    The pledgee of anote, secured by mortgage, lias the right to take measures, that is: to sue for payment in his own name, or for the use of tbe pledgor, to satisfy the debt to secure which the pledge was made, subject to the obligation of accounting to his debtor.
    The appeal taken by a defendant from a decree of executory process, which allows as attorneys’ fees a larger percentage than that agreed to iu the act of mortgage, is not frivolous and damages cannot be allowed.
    Executory-process can issue on the pledged note, although the plaintiff annexes unauthentic evidence of the debt due him and secured by the pledge.
    On an application for a rehearing the court can, without granting the prayer and hear the case anew, make verbal corrections which do not change materially the effect of the decree previously rendered.
    APPEAL from the Twenty-third District Court, Parish of Iberville. Talbot, J.

      Jonas & Nixon for Plaintiff and Appellee.

      David N. Barroxo for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant appeals from an order of seizure and sale.

He charges that the claim of plaintiffs is not established by authentic evidence and that the decree allows ten per cent as attorney’s fees, one-half more than could be allowed.

The plaintiffs claim damages for a frivolous appeal.

The plaintiffs have submitted to tlie lower court, in support of their >rayer for executory process, a matured note of defendant in the stere»typed form to his own order and by him endorsed, and a duly certifled copy of an act, whereby the defendant secured the payment by mortgage on the property described in the act, and agreed to pay attorneys’ fees fixed at fi/ve per cent on the amount due, in case of suit to enforce payment.

This showing was amply sufficient to justify the fiat of the district court.

The contention is, however, that the plaintiffs sue on six notes of defendant, to the order of and endorsed by another party, which stipulate attorneys’fees at ten per cent, and that there is no authentic evidence that these notes were drawn by the defendant, that they were endorsed by the party to whom made payable and that they are secured by mortgage on the property described in the petition.

The plaintiffs claim that the three thousand dollar note, already mentioned and which is secured by mortgage, was pledged to them by a debtor of theirs.

They do not sue as owners of that note, but simply as pledgees thereof. By so doing they have exercised a recognized right.

Tt was unnecessary for them to have made any averment as to the pledge, or as to their title to the note of $3000. They had authority to sue directly as the pledgor himself might have done, or they might have sued in their own names for his use as is frequently done.

The Code is explicit on this subject. Tt provides that if the credit which has been given in pledge, becomes due before it is redeemed by the person pawning it, the creditor shall be justified in receiving the amount and in taking measures to recover it, subject to the obligation of accounting to the pledgor. R. C. C. 3170, (3137).

In several instances the right of the creditor to sue has been expressly admitted. Bank of Lafayette vs. Bruff, 33 Ann. 626; Blouin vs. Liquidators, 30 Ann. 714; Ducane vs. McKenna, 28 Ann. 419; Succession of Dolhonde, 21 Ann. 3; also 7 Ann. 225; 8 N. S. 370.

Taken as. a whole their petition may be considered as drawn in the latter form.

The allegations touching the debt due plaintiffs by defendant and evidenced by the six notes which are not authentic and the annexing of those notes to the petition, were surplusage and cannot affect the rights of the plaintiffs.

They do not propose to ask that the property be sold to pay the $3000, but only to pay them $2451 and interest which is due them as holders of the six notes; any surplus to remain to the credit of their debtor.

The district judge, however, erred iu allowing ten per cent for attorney’s fees when the act of mortgage'only allows five.

The defendant to that extent had a right to complain, and his appeaL cab not he treated as frivolous.

It is therefore ordered and adjudged that the decree appealed from he amended, so as to reduce the percentage allowed for attorney’s fees from ten to five per cent on the amount sued for, and that thus amended said decree he affirmed, appellees to pay costs of appeal.

On Application for Rehearing.

Appellees and appellant pray for a rehearing.

The appellees call the attention of the court to the fact that the district judge did not allow ten per cent as attorney’s fees on the amount, sued for, but five only, under the stipulation in the act of mortgage.

In this they are well founded. Justice to the district judge demands that the correction he made. The ten per cent mentioned in the prayer of the petition and which we had taken to be the allowance for services for recovering the amount sued for, are those provided for in the authentic notes.

The correction is in the verbiage only, as the allowance of five per cent for attorney’s fees, which the plaintiffs claim and which was allowed them, was .sanctioned by this Court on the decree and the practical result in the recovery is the same.

The appellant has urged no defense which he had not previously submitted. His application is a mere rehearsal of the past and has already received attention and been pronounced without merit.

We do not think, however, that the case is one iu which damages for a frivolous appeal can be granted.

The correction asked may be made without granting a rehearing, by simply eliminating from the opinion and the decree what was therein said touching the allowance of the percentage as'attorney’s fees by the district judge.

Rehearing refused.


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    No. 9886.
    The State of Louisiana vs. Emile Dominique, alias Frenchy.
    The absence of tlie accused, in a case of larceny, from the courtroom at the hearing, of a motion of the State’s attorney for the amendment of his information, with a view to an alteration of the name or surname of the owner of the stolen property, will nol/vitiat« tlie proceedings. His presence in court is required only at tlie trial of his guilt or innocence, and not during all other preliminary or secondary proceedings, involving matters connected with the form or conduct of his trial.
    An amendment of an indictment or information in a case of larceny, changing the name of the alleged owner of the stolen property, may be allowed after arraignment, and the accused cannot complain, after conviction, that he was not arraigned under the indict-. ment or information as amended.
    APPEAL from the Nineteenth District Court, parish of St. Mary. Alien, J.

      M. J. Cunningham, Attorney General, and W. K. Wilson, District Attorney, for the State, Appellee.

      W. J. Suthon and P. J. Signs-, for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

In a prosecution for larceny, the District. Attorney, with leave of the Court, amended his information touching the given name of the owner of the stolen property. The name of the owner as originally alleged, was “ Isaiah T.'Sharp,” and it was amended so as to read “ Jeremiah E. Sharp, Jr.”

The amendment was made in open court after arraignment and before trial, in the absence of the accused, but in the presence of his counsel. To this inode of proceeding the defendant charges two errors:

1. That his absence from the court vitiated the proceeding.

2. That after the amendment he could not be legally tried without arraignment under the information as amended.

1st. The recent and somewhat numerous decisions of this Court, determining what proceedings in a criminal cause may he had during the absence of the accused, must have escaped the attention of counsel for defendant herein.

The rule' has been formulated thus:

“ Tlie absence of the accused during the trial of motions not making part of the actual trial of Ms guilt or innocence, but having reference to the form or conduct of the trial, will not vitiate the proceedings.’’ State vs. Fahey, 35 Ann. 9; State vs. Clarke, 32 Ann. 560; State vs. Harris, 34 Ann. 121; State vs. Gonsoulin, 38 Ann. 459.

Hence that contention can hardly be considered as serious.

2d. The amendment made in this ease is clearly covered by the provisions of Section 1047 of the Revised Statutes. Such an amendment has been allowed after the trial had begun. State vs. Holmes, 23 Ann. 604.

In a trial of larceny Hie gist of the offense is tlie unlawful taking and appropriating by the accused of the property of another; the name of the owner being a matter of .secondary impoitanee or consideration. State vs. Everage, 33 Ann. 120. Hence, in the recent case of the State vs. J. and H. Hanks, not yet reported, this Court sustained the ruling of the district judge, who had allowed, in a case of horse stealing, an amendment, after the trial had begun, of the, name of the alleged owner of the stolen horse, from “Sevigne Duhon” to that of the tutor’s daughter, “ Cecile Duhon, wife of William Harson.”

Hence, it follows that the trial judge in the case did not tresspass beyond his legal discretion in ordering the trial to proceed without a second and useless arraignment of the accused.

Judgment affirmed.


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    No. 9914.
    W. S. Calhoun vs. H. McKnight et al.
    In a rule taken by an heir to be put, in possession of an estate, and for other purposes, any Irregularity in such proceeding, though urged in oral and written argument, will not be considered in the absence of pleadings raising such issues, save in exceptional cases.
    An heir is not entitled to be put into possession of certain funds in the hands of an adminis* trator, when it appeal’s that this fund is in litigation between the succession and another claimant. The lioir cannot receive it until the litigation is terminated, though other* wise he might he entitled to it,.
    APPEAL from the Twelfth District Court, Parish of Grant. Overton, J.

      Thorpe & Peterman for Plaintiff and Appellee.

      White <& Thornton for Defendants and Appellants.
   The opinion of the Court was delivered by

Todd, J.

On the 31st of October, 1884, the plaintiff presented a petition to the district court of Grant parish, alleging that he and Mrs. Lane were sole legal heirs of Meredith Calhoun, deceased, whose succession was ópened in said parish and was then under administration. He further alleged that he accepted said succession purely and simply, and prayed that his co-heir, Mrs. Lane, and McKnight, the administrator, he cited, that the latter he ordered to render his account and that he, the petitioner, be recognized as an heir accepting the succession absolutely and unconditionally, and be put in possession of the estate.

There was judgment rendered on default in the plaintiff’s favor, granting the prayer of his petition, save with respect to the demand to be put in possession of the property of the succession, in which point the judgment was silent.

This judgment was rendered on the 25th of November, 1884.

McKnight, administrator, subsequently filed an account of his administration as ordered in the judgment, and a short time thereafter died, and Mrs. Elizabeth McKnight,, his surviving widow, was appointed administratrix of his succession.

On the 9th of September, 1886, W. S. Calhoun, plaintiff, filed a rule, alleging that he had been recognized as an heir of Meridith Calhoun, accepting liis succession purely and simply as shown by the judgment of November, 1884; that the administrator had died before putting him in possession of the property, and prayed that Mrs. McKnight, administratrix of Howard McKnight, be required to show cause why she should not deliver to the petitioner all the property movable and immovable, rights and credits of the succession of Meredith Calhoun, which remained in the hands of Howard McKnight, administrator, at his death, and of which Mrs. McKnight, his administratrix, was then in possession; Mrs. Lane was also made party to the rule.

There was judgment making the rule absolute and requiring Mrs. McKnight, administratrix, to turn over to the plaintiff all the property in her possession belonging to the succession of Meredith Calhoun.

This is the judgment before us for review under an appeal therefrom taken by Mrs. McKnight and Mrs. Lane.

The defendant’s main contention before this Court is :

First, that the proceeding by rule was illegal and unwarranted; that the judgment first rendered virtually denied the right of the plaintiff to be put in possession of the estate, by reason of its silence in this demand, which formed part of the petition ; and that a rule could not be engrafted on this judgment to enforce a demand which the judgment itself had refused.

Further, the incapacity of Mrs. McKnight, administratrix, to stand in judgment or to represent the succession of Meredith Calhoun is urged. '

These are nice questions which admit of ample discussion, but we are powerless to consider them, since they were not raised by the pleadings, but appear for the first time in the brief of the counsel before this Court.

The defenses set up in the answers are without force with one exception. That exception is: It is alleged, quoting, that there is a suit pending between this opponent (Mr. Lane) and H. MeKnight, administrator — the said MeKnight being appellant from a judgment decreeing him to pay petitioner (Mrs. Lane) about $750 collected from rents of opponent’s (Mrs. Lane), and this Court cannot order said funds to be paid to the said Calhoun.”

The evidence in the record in support of this averment and defense is as follows, (quoting): “It is admitted that the appeal in the suit of M. M. A. Lane vs. H. MeKnight, administrator, is now pending before the Conrt of Appeals from a judgment rendered by the district court against H. MeKnight, administrator, for rents alleged by Mrs. Lane to have been collected from her lessees. It is admitted that on the homologation of McKnight’s account of September 18, 1884, the amount of these rents was left in his hands to await the issue of that suit.”

Under the judgment appealed from in the instant case, tins identical fund with all other funds and assets of the succession of Meredith Calhoun, are ordered to be paid over to W. S. Calhoun, plaintiff herein, notwithstanding Mrs. Lane had obtained judgment for the same in the district court and the appeal therefrom pending in the Conrt of Appeals as shown.

It was wrong to disturb tlie disposition of this fund made by the judgment homologating the account and the further proceedings mentioned, and the judgment in this respect must be corrected and amended.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be amended by adding and interpolating after the words due course of administration,” found in said judgment the following: “ and save and except the amount decreed Mrs. Lane by the judgment rendered iu the district court iu her favor in the suit of M. M. A. Lane vs. H. McKnight, administrator, and now on appeal in the Circuit Court j ” and as thus amended the judgment is affirmed, the costs of appeal to be paid by the plaintiff and appellee.


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    No. 9928.
    John B. Manning vs. Board of Liquidation.
    The bona fide holder of honda issued under Acts 69 of 1870 and 35 of 1865, are entitled to have them funded, under Act 3 of 1874.
    The legality of the first is not attacked by Act 5 of 1875 which reflected on the second.
    The validity of the last has been recognized judicially, twice, by the Supreme Court.
    If it be true, that more bonds have been funded than were issued, the plaintiff cannot be made the victim of that circumstance,

      A PPEAL from tlie Seventeenth District Court, Parish of East Baton JTjl Rouge. Burgess, J.

      Kennard, Howe & Prentiss for Plaintiff and Appellee.

      M. J. Oumiingham, Attorney General, for the State, Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff sues to have certain bonds held by him, issued under Acts 69 of 1870 and 35 of 1865, funded under Act 3 .of 1874.

The defense is that the bonds are not valid and that more bonds than were issued of the same class have been funded.

The genuineness of the bonds held by plaintiff is not questioned and it is not shown that they are illegal.

Act 5 of 1875, which questioned the validity of certain bonds, did not attack that of the bonds issued under Act 69 of 1870, while it reflected on those issued under Act '35 of 1865, known as Levee 8 per cent bonds of 1865.

In the case of Attorney General vs. Clinton 28 Ann. 219 and in State ex rel. Matthews vs. Board, decided in Monroe in 1877 (No. 697, and not reported) the validity of the last bonds was judicially recognized.

If it be true that more bonds have been funded than were issued, this fact cannot affect the plaintiff, who is a bona fide holder, as is declared by this Court in the case of Buckingham, a similar plaintiff, this day decided.


text:
    No. 9930.
    The State ex rel. F. Lamarque vs. L. A. Burthe, Recorder.
    A defendant, prosecuted for tlie violation of a municipal ordinance subjecting Mm to a fine, and in default of payment to imprisonment — who, on arraignment, pleads guilty, and on judgment voluntarily pays the fine, is not entitled to an appeal
    Where a discrepancy exists between the return of a judge and the statement of a relator, credence will be given in preference to the return.
    . The refusal to allow an appeal is justified unnder the circumstances, and no mandamus will issue to compel the granting of any.
    PPLICATION for Mandamus.

      Belden <& Armbruster for the Relator.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus to compel the granting of a suspensive appeal.

The relator charges that he was arrested for violation of an ordinance of this city, bearing No. 4798, A. S., prohibiting private markets within a certain radius from a public market; that he pleaded that the ordinance had been repealed by the present city charter; that he was nevertheless fined $25 and sentenced to imprisonment during thirty days in ease of non-payment; that he has applied for a suspensive appeal, which was refused him.

He prayed for an alternative mandamus and a restraining order, which were both allowed.

The recorder returns that the defendant on arraignment pleaded “guilty,” and upon judgment being rendered, as stated, that he promptly paid the fine imposed.

Since the case was submitted, the relator has filed an affidavit, traversing the recorder’s return, to the effect that he did not plead guilty, but that the recorder so inferred or deduced from his confession or admission of having committed the act charged as done in violation of the municipal ordinance.

This affidavit ought not to have been filed. It came too late. Conceding to it, however, whatever effect it might be otherwise entitled to, we have no hesitation to say that it is a settled rule in such cases of contradictory statements to give credence rather to the return of the magistrate.

But even then, the relator does not pretend to deny the material fact that he has promptly paid the fine imposed by the recorder, or explain the circumstances under which he did so.

The payment made without qualification must be viewed as made voluntarily. C. P. 507.

Under such circumstances the relator must be denied the right of appeal.

It is therefore decreed that the restraining order herein made be rescinded, and that the application for a mandamus be refused with costs.


author: Poóhé, J.

text:
    No. 9854.
    The State of Louisiana vs. Sampson Paul.
    In tlie trial of a criminal case, neither party should be allowed to introduce new or addi* tional testimony after the evidence has been closed, after the argument has been made, after the judge has given his general charge to the jury, and when be is about to give a special charge requested by counsel for the accused, on a point which the district attoruey had omitted to support by evidence, and for the introduction of which he seeks to reopen the case. «
    There must be an end to the examination of witnesses in all trials.
    APPEAL from the Twelfth District Court, Parish of Grant. Blackman, J.

      M. J. Cunningham, Attorney General, and John C. Wickliffe, District Attorney, for the State, Appellee.

      M. F, Machen and E. L. Baigre for Defendant and Appellant.
   The opinion of the Court was delivered by

Poóhé, J.

The complaint in this case is that the trial judge allowed the district attorney to reopen the case in order to prove the time of the commission of the offense charged, after the evidence had been closed, after the argument of counsel to the jury had been made, and after the general charge of the judge to the jury had been given.

While we concede to its fullest extent the discretion which is vested in the judge in conducting the trial in criminal cases, we are constrained to hold that the ruling in this case is error.

It appears from the record that the case was reopened after the argument, after the general charge, after a special charge at the instance of the State’s counsel had been given to the jury, and when that attorney was reminded of his omission to prove time through the request made by defendant’s counsel for a special charge ou the necessity of proof of the time at which the offense charged to the accused had been committed.

If it is within the legal discretion of the judge to reopen the ease at that stage of the trial, it is difficult to conceive at what point that same discretion could not be invoked to justify the introduction of new or additional evidence.

Under such a practice, when could any trial be considered to be at an end? And yet it stands to reason as well as in law that there must be an end to the examination of witnesses in all trials.

One of the latest expressions on the subject emanating from this Court is to the effect that: “ The rules of practice have wisely provided that when the evidence has been closed, the examination of witnesses is at an end. A different rule would have protracted trials beyond reason, and would have practically resulted in a denial of justice.” State vs. Chandler, 36 Ann. 177.

We are aware that jurisprudence has recognized some exceptions to the general rule, and that the exercise of a sound discretion by the trial judge to the extent of admitting evidence immediately after the case had been closed has been justified on appeal in this State as well as in other appellate courts. State vs. Coleman, 27 Ann. 691; State vs. Colbert, 29 Ann. 715; State vs. Rose, 33 Ann. 932; Wharton’s Criminal Law, §§ 3009, 3342. But instances of the kind cannot and should not he numerous.

In the case of Colbert, 29 Ann. 715, the Court very guardedly restricted the exercise of the right to reopen the case after the evidence had been closed, to that stage of the trial before the argument began, these words being italicized in the opinion, thus clearly indicating a different ruling if the attempt to reopen the ease had been made at a more advanced stage of the trial, particularly as was the case here, when the ease had been practically ended.

In our investigation of jurisprudence we have found no case, and we have been referred to no ruling which can be invoked as a precedent for the latitude which was allowed to the prosecution iu the instant case. And we are not inclined to establish such a precedent, which would, in our opinion, be subversive of all the safe rules which should prevail in the trial of criminal causes.

Next to the certainty of punishment, the enforcement of wise and impartial rules in trials of- all cases, will be found to be the most effective means for the repression of crime.

Our conclusion is that the accused in this case has not had a fair and impartial trial.

ft is therefore ordered that the verdict of the jury be set aside; that the sentence of the court he annulled and avoided, and that the case he remanded to the district court, for further proceedings according to law.


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    No. 9885.
    The State of Louisiana vs. David Jefferson.
    A written acknowledgment that A has picked so many pounds of cotton, purporting to bo signed by the proper party, amounts to a note or order for the payment of money. Under a charge of forgery, it can serve as a basis for an indictment.
    Whether such instrument was or not used for the purpose of drawing money, is a matter of fact within the province of the jury.
    APPEAL from the Twelfth District Court, Parish of Avoyelles. Blackmcm, J.

      ill. <71 Gwnnvncjham, Attorney General, and John O. Wioldiffe, District Attorney, for the State, Appellant.

      Gullom & Son for Defendant and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

The State appeals from a judgment sustaining a demurrer to the indictment against the defendant, charging him with forgery.

The grounds set forth to quash the indictment are:

1. That the charges laid in the indictment are too vague, uncertain and indefinite to warrant the prosecution.

2. That the instruments, papers or orders charged to have been forged, uttered and published, have not the requisites of orders, as shown on their face, and could not serve to defraud anyone.

3. That said instruments are of no effect, and are such that forgery cannot be predicated on them.

4. That said instruments áre in reality what the indictment describes and alleges them to be, and are not susceptible of the charge of forgery.

I.

The defendant has not shown in what respects the indictment are open to the charges of vagueness, uncertainty and indefiniteness, either in his plea or in his argument, and the Court cannot be expected to raise points and issues for his benefit, which he has not made.

II

The indictment charges that the defendant, with intent to defraud a named person, has forged and uttered certain orders df the following tenor: “Willy Johns has picked 215 pounds of cotton, Henry Weastly,'1'1 and “David Jefferson has picked 852 pounds of cotton. Henry Woothen.”

The law does not require, in cases of forgery, that the instrument charged to have been forged, shall on its face purport to be an order for the payment of money or delivery of goods.

It is sufficient that the instrument be one, by the use of which, money or goods can be obtained.

It has been held that the following instrument; “Due J. F,, one dollar on settlement this day” is the forgery of a note for the payment of money. People vs. Finch, 5 Johns (N. Y.) 236.

It enters in the order of probabilities that the instruments charged to have been forged and uttered, were issued by some one in authority to acknowledge work done by a laborer, in a manner intended to serve as the basis for the computation, of wliat be may have earned; that an acknowledgment of that description is equivalent to an order on a disbursing agent, which, on presentation, entitles the party named, or the bearer, to payment of the realized amount, viz: So much per pound of cotton ; and that the delivery of such written acknowledgment amounts to a receipt showing payment.

Whether the instruments charged in this case as having been forged and uttered are such, is a question of fact for the jury to determine.

They came within the charge, if the evidence establish that, on presentation of genuine similar instruments money can be obtained.

Ill AND IY.

The third and fourth grounds are a repetition of the second one in a different form, but are substantially the same.

It is, therefore, ordered and decreed that the judgment appealed from be reversed; that the demurrer be overruled, and that the case be remanded for further proceedings according to law, with costs-


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    No. 9890.
    In the Matter of the Interdiction of John M. G. Parker.
    Under the effect of C. C. 415, the rules laid down in articles 363 and 364, relative to tutors and guardians of minors residing out of the State, apply equally to guardians of insane or interdicted persons residing out of the State.
    Such guardians, when duly appointed and qualified according to the laws of the State where the insane person resides, are entitled to recognition as such by our courts, to be vested with the power and authority defined in said articles. But to support a decree to that effect, it is essential that they should not only have been appointed, but that they should have qualified in conformity with the laws of the State where they have been appointed.
    APPEAL from the Civil District Court for the parish of Orleans. Monroe, J.

      Sambola & Dueros and Bouse & Gh-ant for the Appellant.
    1. The powers of executors, administrators or guardians cannot be exercised beyond the limits of the State where they are appointed. Burbank vs. Payne, 17 Ann. 16; Mason vs. Executors of Nutt, ID Ann. 41; Vaughn et al. vs. Northrup et al., 15 Pet. 1; Morrell et al. vs. Dickey, 1 -Johns. Ohy. R. 153 ; Story on Conflict of Laws, § 504, 504». In the absence of statutory authority, our comisare without jurisdiction to recognize them.
    a- If the law were otherwise, our courts could not recognize them until they produced evidence not only of their appointment, but of their qualification, according to the law of the State whore appointed.

      3. Our courts cannot give effect to - the judgments or dee.i cos of the court of another State* which they would not have iu the State where rcudeied. After appeal claimed, from a decree of a probate court in Massachusetts and notice given, the decree is vacated. Public Stats, of Mass., chap. 156, sec. 12; and it is an error to give effect to such decree in this State. Briggs et al. vs. Spencer, 3 Rob. 269 2 Pillet vs. Edgar et al.} 4 Rob 274.
    4. A judgment of interdiction, where the person interdicted has not been cited or otherwise personally notified, is a nullity. Segar vs. Pellerin, 16 La, 63; 1 X. S. 551; 23 Ann. 26.

      Kennard, Howe & Prentiss for the Appellee.
   The opinion of the Court was delivered by

Fenner, J.

Edward M. Tucke and Percy Parker filed a petition in the court below, alleging that the probate court in and for the county of Middlesex and State of Massachusetts, being the court of John M. G. Parker’s domicile and having sole jurisdiction in the premises, had rendered a decree adjudging the said Parker to be an insane person incapable of taking care of himself and appointing the petitioners as guardians of his person and estate; that, as such guardians, they are entitled, under the laws of Louisiana and tiie Constitution of the United States, to exercise within the territory of Louisiana the same lights as in the State of Massachusetts; and, annexing to their petition a duly authenticated copy of the record and decree in the Massachusetts court, they prayed for an order recogniziug them as guardians of John M. G-. Parker with the powers and duties attaching the,veto.

The judge a quo thereupon entered the following decree:

Considering the allegations and prayer of the within petition and document annexed, let Edward M. Tucke and Percy Parker, of Lowell, Massachusetts, be recognized by this court as the guardians of the person and estate of John M. Gr. Parker, interdict, under and by virtue of a decree rendered by the Probate Court of Middlesex county, State of Massachusetts, on the 21st day of September, 1886; provided, however, that the order shall not be so construed as to authorize said guardians to take possession of or remove from this jurisdiction any property of said interdict until such advertisement shall have been made, and such proof offered as shall satisfy this court that all debts due by said Parker in this State have been paid.” R. p. 4.

John M. Gl. Parker, who, it appears, is now in Louisiana, appeals from this judgment, and makes the following assignment of errors apparent on the face of the record :

1. That said judgment appealed from herein was rendered upon the ex parte application of said petitioners, without this appellant having been cited or otherwise notified of said application, or of the pendency of said proceedings in said Civil District Court.

2. That it appears from the record of the proceedings annexed to said petitioner’s application to he recognized as guardians of appellant’s person and estate in Louisiana, that notice of an appeal had been given, which had the effect of suspending, vacating and superseding said judgment of said probate court, under which they claimed to be acting.

3. That it appears from the said record that the judgment of said probate court, under which said petitioners claimed to be acting, made their appointment as such guardians conditional upon their giving bonds according to the law of said State of Massachusetts, for the due performance of their trust, and it does not appear that they have given any such bonds.

4. That said Civil District Court was without any jurisdiction or authority of law to make said order and decree appealed from herein.

Art. 415 of the Civil Code provides that “the person interdicted is, in every respect, like the minor who is under a tutor, both as respects his person and estate, and the rules respecting the tutorship of the minor, etc., apply with respect to the curatorship of the person interdicted.”

Under the effect of this article, we have no doubt that the rules laid down in Articles 363 and 364, relative to the tntor and guardians of minors residing out of the State, apply equally to the guardians of insane or interdicted persons residing out of the State.

We, therefore, conclude that the guardians of such non-resident insane persons, on complying with the requirements of said articles, are entitled to be recognized as such in the courts of this-State, and to be vested with the power and authority defined therein.

Hence, we hold .that the Civil District Court had jurisdiction over the subject matter of the petition, and that, from the very nature of things, such proceeding was necessarily ex parte.

Therefore, the first and fourth assignments of error have no merit.

It only remains to determine whether jurisdiction has been properly exercised, and whether the decree is supported by the evidence upon which it is based.

The article 363 provides : “ Any person who has been, or shall be appointed tntor or guardian of any minor residing out of the State of Louisiana, but within the United States, and who has qualified as such, in conformity with the laws of the State or county where the appointment was made, shall be entitled to sue for and recover any property, rights or credits belonging to the minor in this State, upon his producing satisfactory evidence of his appointment as aforesaid, without being under the necessity of qualifying as tutor of tlie minor, according to the laws of Louisiana.” To sustain tlie decree, satisfactory evidence was essential to show thatthepetitioners had been appointed as guardians, and that they bad qualified as such.

The record produced shows a decree of the Massachusetts Court appointing tlie petitioners as guardians of John M. G. Parker, who is therein adjudged to be au insane person ,• but it also appears that the decree in terms made the appointment dependent on their “first giving bond according to law for the due performance of said trust,” fixed at onó hundred thousand dollars.

The record exhibits no evidence whatever that they have furnished such bond, or have ever qualified. Hence the third assignment of error is well taken.

It further appears that a notice of appeal from the decree of the Massachusetts Court was entered, and appellant cites the laws of Massachusetts to show that such notice of appeal had the effect of staying all proceedings under the decree, until the determination of the appeal by the appellate court.

To this appellees respond that the law of Massachusetts required to be proved and was not proved in the court below, and further deny that the statute has the effect claimed for it.

We do not find it necessary to determine that question now, because under the third assignment we shall reverse the judgment and remand the case, and appellant will then have the opportunity of urging such objections to the validity, finality and effect of tlie judgment under the law of Massachusetts as be may see fit.

Of course, tlie Massachusetts judgment will be entitled to the same faith, effect and credit in Louisiaua as it has in Massachusetts.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that the case be remanded for further proceedings according to the views herein expressed.


author: Bekmümoz, C. J.

text:
    No. 9774.
    Frank A. Lynch vs. John C. Febiger, Jr.
    A dealer in paints of a particular qqality who soils the same with the formal condition that they shall be used as they come from the manufacturers' and be properly put on, and who subsequently discovers that one to whom bebas sold such paints has put in the same foreign ingredients — oil and turpentine — is not, as a rule, liable in damages for refusing to sell farther to snub purchaser ard for stating that bo bad not kept bis agreement.
    Particularly is such tbe law, when the statements are made without malipe, under the firm belief that they are true and for self-protection, to tbe party himself; ór to parties inter tinted entitled to an information-

      APPEAL from the Civil District Court for the Parish of Orleans, Bightor, J.

      Henry Dufilho for Plaintiff and Appellee:
    Every publication of language concerning a man or bis affairs, which, as a necessary of natural and proximate consequence occasions pecuniary loss to him, is prima facia a slander. Townshend on Slander and Libel, § 70, p. 115.
    Slander is defaming a man in his reputation by speaking words which affect his life, office or trade. Ibid, p. 59. foot note 3.
    "Words uttered must be construed in the sense which hearers of common and reasonable understanding would ascribe to them, even though particular individuals better informed in the matter alluded to, might form a different judgment on the subject. Moak’s Underhill on Torts, pp. 122,123.
    Language is not to be construed in a milder sense (witioH aensu), because it is capable of a forced construction by being interpreted in an innocent sense. Bigelow on Torts, (Student's Edition), p. 39; see also 2 L. 577 ¡ 2 N. S. 257, and other authorities quoted in brief.
    "When language is slanderous per ae, damages maybe recovered without special injury or damage being proved. Townshend on Slander and Libel, p. 542; 38 Ann. (vol. 38)/No. • 2, p. 161, aud the authorities in that decision quoted.
    Injury to one's feelings is a legitimate ground of action for reasonable indemnity. 38 Ann. (vol. 38) No. 2, p. 161,
    Communications made by one person to another, having for object the protection of the private interest of either or both of tlio parties, must, in order to be privileged, have been made with a firm belief in their truth; otherwise malice is tobe presumed. To determine whether such communications were made under a firm belief in their truth, it is necessary to consider the circumstances attending the publication, and the means of information possessed by the publisher for knowing whether or not the communication or publication was true. That mischief which a man does he is supposed to mean, and he is not permitted to put in issue a meaning abstracted from the fact. Townshend on Slander aud Libel, pp. 135, 600; Moak's Underhill on Torts, p. 129; Eolkard’s Starkie on Slander and Libel, p.343.
    The answer of defendant equivocates. It includes every possible defense, except apology to : the party aggrieved. It cannot avail him, 38 Ann. (vol. 38), No. 2. p. 161.
    There is no such thing in law as a half-way justification. Townshend ou Slander aud Libel, § 212 and note, 2d ed. • •

      Joseph P. Uornor and Francis B. Lee for Defendant and Appellant:
    1. The truth of the words uttered, or publication made, is an absolute defense to a civil action of. libel or-slander. Const. 1879. Art. 168; Perret vg. Times, 25 Ann. 176 ; 14 Ann. 406; 15 Ann. 592; Hawkins vs. Picayune, 29 Ann. 137; Staub vs. Van Benthuysen, 36 Ann. 469.
    2. Statements made by one person about another to a,third, though untrue, are privileged when they aie made witnout malice, under a firm belief iu their truth, and for the purpose of protecting his own pecuniary interests or those of persons equally interested in the subject matter of the communications, or in reply to questions upon, the said subject matter put to him by persons interested in it and entitled to an answer. Townshend on Libel and Slander, secs. 209, 240, 241 ; Odgers on label and Slander, pp. 203. 209, 234; Hauey vs, Trost,'34 Ann. 1147.
   The opinion of the Court was delivered by

Bekmümoz, C. J.

This is an action in damages for slander, fixed at. $25,000.

In two petitions, an original and a supplementary, elaborately prepared, the plaintiff complains that the defendant has slandered him in his business, as a house painter, misrepresenting him as having adulterated paints purchased from defendant.

Elaborate exceptions and an amplified answer were filed, in which the defendant avers that he, as agent, had sold paints know)) as “ Masury's liquid colors,” under the express condition, previously entered into, that he would use these just as they come from the manufacturers whom he represented, and would put them on properly; that he subsequently discovered that plaintiff had violated the agreement by allowing something to be put into the. colors, and thathe would not sell plaintiff any more of said paints.

The case was submitted to a jury, who returned a-verdict of $500, on which was rendered the judgment appealed from, and of which no amendment is asked.

Twenty-two witnesses have testified.

The contract or understanding was proved, and it, was expressly admitted that the plaintiff had put oil aud turpentine in Masury’s liquid colors.

The proof is also that the defendant made the statements to the plaintiff himself, as well as to parties interested, who had a right to be informed, and whom defendant had a right to approach.

Conceding arguendo, however, that the defendant has not proved the contract and its violation, a question rising superior to those raised in this suit would be: Could not the defendant, without giving any reasons or tendering any excuse, have refused, with impunity, selling paints any further to plaintiff?

It occurs to us that defendant cannot be assimilated to public servants, common carriers, aud to others in similar positions, who are bound to do certain things, aud who may make themselves liable in cases of dereliction of duty and injury to others.

Considering further that it is established that the defendant used the word adulterated when he accused plaintiff with putting in the paint other ingredients, we do not think that it is shown thathe did so with a full knowledge of the whole purpose of the word, which sometimes means to corrupt by some foreign mixture. We prefer, under-the cireumstances, in the absence of any malice shown, to consider that he used the word in the other sense which it has, to alter by intermixing what was Iqgs valuable, such as oil and turpentine.

Even were it otherwise, under the evidence, we are not prepared to say that the addition of those two ingredients did not really constitute an adulteration, which actually corrupted or vitiated the liquid colors, so as to deprive them, when properly used, as received from the manufacturers, of their usual brilliancy and durability.

The testimony, pro and eon, establishes satisfactorily the defeuse.

In refusing the motion for a new trial, the District Judge said that lie eonsiclered the verdict erroneous, and gave reasons in support, as follows:

1st. There was no pioof of any defamatory utterances by defendant other than the statements as admitted in the answer.

2d. It is more than doubtful whether those statements taken in the light of the entire admissions are at all defamatory.

3d. 'I’lie truth of those statements were not only proved beyond a-doubt, but it was admitted in argument that tlie turpentine had been put into tlie paints by plaintiff’s orders.

4th. The existence, prior to the date of tlie alleged slanders, of the contract sot up by the defendant was established.

5th. The. further defense of the qualified privilege set up in the answer was established in each particular ease in which it ’.ya;s pleaded, and it was so pleaded as to each of the statements admitted and proved to have been made.

6th. There was no proof of injury to plaintiff’s reputation.

7th. There was no malice by the defendant. His acts and statements proceeded from the desire to protect Ms interests, not to wantonly injure or annoy plaintiff.

While we consider that the district judge ought to have granted a. new trial, still as the defendant does not complain, we feel justified in passing upon the merits.

With the district judge we think the verdict is erroneous and that, the case is with the defendant.

It is therefore ordered that the verdict of the jury be set aside and that tlie judgment appealed from be reversed, and it is now decreed that there be judgment in favor of the defendant, with costs in both courts.


text:
    No. 9853.
    The State of Louisiana vs. Spencer Jordan.
    Burglary is a statutory offense. An information charging that the breaking and entering into was done wilfully, maliciously and feloniously, is not defective for not setting forth that the act was done burglmiously.

    APPEAL from the Twelfth District Court, Parish of Craut. Blackman, J.

      M. J..Cunningham, Attorney (leu eral, and John O. Wieldiffe, District Attorney, for the State, Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The accused moved to quash the information for burglary and larceny filed against him, on the grounds : That it does not charge the essential words to constitute an information for burglary, to wit: feloniously and burglariously broke and entered the dwelling house in the night time.

The motion was sustained and the information quashed. The State appeals.

The information does not purport to charge burglary into a dwelling-house. It charges that the defendant did wilfully, maliciously and feloniously, and in the night time, break and enter the corn eri-b of March Scott, * * and having so broken and entered, did then and there, wilfully, maliciously and feloniously, one barrel of corn worth one dollar and the property of said March Scott, steal and carry away.

The State says that the information was filed under the provisions of sec. 852, R. S.

That section does not require that the accused be charged witli having burglariously broken in to and entered, etc.

In State vs. Nelson, 30 Ann. 1253, the previous court held that the crime of burglary known to our law, is statutory ; that tbe statute defines it, and that we must, therefore, look to tbe statute to ascertain tlie essential averments of the indictment.

‘‘It is urged, said the Court, that it is uot sufficient'to charge that the act was “feloniously" done; that the charge should iilso be that it was burglariously done. * * It is sufficient to charge in 'the language of the statute that the offense had been committed feloniously. Whar. Cr. L. 399; 29 Ann. 602.

It is therefore ordered and decreed, that the judgment appealed from be reversed ; that the motion to quash be overruled and that the ease be remanded for further proceedings according to law.


text:
    No. 9937.
    The State ex rel F. Lamarque vs. L. A. Burthe, Recorder.
    The Supreme Court can exercise its jurisdiction in so far only as it shall have knowledge of the matters argued and contested below.

    ■A wm?id«mwwill not lie to a recorder for refusing to allow an appeal fiom a judgment inflicting a fine for the violation of a municipal ordinance, when the constitutionality or legality of the ordinance authorizing the fine was not contested and put at issue before the judgment.

      Mandamus does not lie to compel the granting of an appeal in a case which, on the face of the papers, is unappealable.
    ^PPLICATION for Mandamus.

      Selden. and Armbruster, for the Relator.
   The opinion of the Court was deliveied by

Bermudez, C. J.

The Relator applies for a mandamus to' compel the recorder to grant him a suspensive appeal from a judgment inflicting a fine on him for the violation of a municipal ordinance,charged with illegality as having been previously repealed.

The recorder, in an elaborate return, denies that the constitutionality or legality of the ordinance was, in any manner, put at issue before him.

The relator has adduced no proof to show the reverse.

This Court surely could, in the exercise of its appellate jurisdiction, review a judgment, for any amount, rendered in furtherance of a municipal ordinance assailed as unconstitutional or illegal, where such judgment has passed on such issue; but in the absence of such plea, it would be powerless to adjudicate upon the correctness of such judgment

The Constitution vests it with appellate jurisdiction m cases in which the constitutionality or legality of any fine imposed by a municipal corporation is in contestation. Art. 81.

“ The Supreme Court can only exercise its jurisdiction in so far as it shall have knowledge of the matters argued or contested below.’ C. P. 895.

As the legality of the fine was not contested below, it could not be contested on appeal.

The recorder has, therefore, properly refused the appeal.

It is, therefore, ordered that the application for a mandamus be refused, with costs.


author: Boché, J.

text:
    No. 9720.
    The State of Louisiana ex rel. Bradish Johnson vs. City of New Orleans.
    Ia a proceeding by mandamus for fche cancellation of an inscription of the drainage tax mortgage, on the ground that the tax is not exigible against relator’s property, either tor want of consideration br for non-performance of the drainage contract, or on account of previous payment, the controversy does not involve the legality or constitutionality of the tax.
    In such case the test of the jurisdiction of the Supreme Court is the amount of the tax in discussion, and the appeal cannot be sustained if said amount does not exceed two thousand dollars.
    APPEAL from the Civil District Court for the Parish of Orleans. Righior, J.
    7’. Gilmore é Sons for the Relator, Appellant.

      W. II. Rogers, City Attorney, and Wynne Rogers for Defendant and Appellee.
   The opinion of the Court was delivered by

Boché, J.

Relator seeks a judgment for the cancellation of the inscription in the mortgage office of drainage taxes in favor of the city of New Orleans against property which he owns in said city.

He predicates the relief which he prays for on the following averments substantially:

1.That said tax rests on no consideration in so far as it is intended to affect the property which he describes in his petition.

2.That said property had already been drained, and the tax for the same had been paid to the New Orleans Draining Company.

3.That the drainage work undertaken by the city of New Orleans, under color of the acts of the General Assembly of 1858, 1859 and 1871, has not been carried on, but, on the contrary, has been abandoned.

The citjr made no defense, and the district court dismissed the action as in case of non-suit, for the reason that relator had failed to prove the facts necessary to his success.

The amount of the tax complained of is $1,368.35, and therefore we have no jurisdiction of the case.

As it clearly appears from the allegations which make up the groundwork of the mandamus prayed for, this controversy involves purely and simply questions of fact.

Hence the legality or constitutionality of the tax in suit is not in contestation.

Relator does not complain, allege or intimate that tlie drainage tax is either illegal or unconstitutional, but his contention is that under the circumstances which characterize the condition of his property in reference to drainage, the tax inscribed against it cannot be exacted, either because it is not due, of becau'so it had already been paid, or because the drainage work, which is the only consideration therefor, has not been carried on, but is abandoned.

These three questions of fact, depending for solution exclusively on evidence, cannot be construed as a contestation involving the legality or unconstitutionality of the tax under discussion.

And that feature of the controversy is the sole condition .of our jurisdiction when the amount of the tax does not exceed two thousand dollars. Gillis & Kennett vs. Assessor, 33 Ann. 285; New Orleans vs. Blanks, 35 Ann. 1201; Cobb vs. Tax Collector, 36 Ann. 801; Breaux vs. Recorder of Mortgages, 36 Ann. 742.

It is therefore ordered that this appeal be hence dismissed.


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    No. 9927.
    S. M. Buckingham vs. The Board of Liquidation.
    The "bona jide holder of State bonds, the genuineness and legality of which is not at issue, issued under Act 69 of 1870, E. S., is entitled to have them funded under Act 3 of 187*1, although the books of the Auditor show that more bonds have been funded than were issued.
    The plaintiff cannot be made to suffer from the error or fraud committed.
    APPEAL from the Seventeenth District Court, parish of East Baton Rouge. .Burgess, J.

      Kennard, Howe aud Prentiss, for Plaintiff and Appellee.

      M. J. Cunningham, Attorney General, for Defendant and Appellant.
   The opinion of the Court was-delivered by

Bermudez, C. J.

The defendant appeals from a judgment which directs the funding of certain bonds lield by plaintiff, issued under Act 69 of 1870, E. S.

The Board of Liquidation contends that, acting under Act 3 of 1874, which provides for the funding of State bonds, it lias no right to fund bonds of any particular issue, to a larger amount than appears to have been uttered.

Tlie legality or genuineness of the bonds held by plaintiff is not at issue.

It, appears from tlie books of tbe State Auditor that $2,950,000 of tlie floating debt bonds wore issued under the act of 1870, and that $2,-962,000 of those bonds have alieady been funded under the act of 1874, $12,000 more than issued.

No doubt the entries on the Auditor’s hooks are, prima facie correct, but what docs this presumption amount to when they are self-destructive"? Their own recitals establish either 'that more than the stated number and amount of bonds have been issued, or that among the bonds funded there are some which are spurious.

If the bonds funded are all genuine, then the number and amount of bonds issued, exceed by $12,000 the bonds funded.

If, on the other hand, the bonds funded are in part spurious, for an amount exceeding $.12,000, then the number and amount of the bonds issued include more than $12,000 of forged bonds.

The plaintiff is a bona fide holder of genuine legal bonds, not can-celled, as is done with funded bonds.

It is evident that some error or fraud has been committed somewhere; but, whether the one or the other, the plaintiff cannot he made to suffer. The State must seek relief otherwise than by shutting him out.

Judgment affirmed.