author: Breaux, J. Watkins, J.

text:
    No. 11,360.
    Mrs. Sylvanie B. Denegre vs. David Mushet.
    A motion to dismiss an appeal on the ground that the necessary parties have not been cited will be denied when all the parties to the record interested in maintaining the judgment are parties to the appeal.
    In case property is sent to sale under a senior mortgage and there remains a surplus after the claim of the first mortgagee has been paid, the purchaser is entitled to retain it and pay it over to the subordinate mortgagees when they present themselves.
    A creditor holding a judicial mortgage only has no claim to, or right upon this surplus, and is without right to call other creditors holding special mortgages into court for the purpose of discussing or distributing it. Much less has he the right to interplead in the original executory proceedings and compel the appearance of special mortgagees to try the validity of their demands with the purpose and object of having their nullity pronounced to the effect that his own be advanced to first in rank, and thus to be preferred in receivingpayment.
    Such a proceeding is not a conciwsus, but has the features of a revocatory action, and is amenable to the prescription of one year.
    APPEAL from the Civil District Oourb for the Parish of Orleans. Bightor, J.

      W. S. Benedict and Bobt. G. Dugué for Plaintiff in Rule, Appellee:
    All claims to the proceeds of a judicial sale must be referred to the court under whose authority the money was realized to class the mortgages and privileges according to their rank, in a summary manner. R. S. 1942; C. P. 126.
    The proceeding is a sort of concursus, where every creditor is plaintiff and defendant, the several claims being open to every objection of law and fact, such as minority, fraud, simulation, etc. 11 An. 386, 671; 40 An. 149.
    The holder of a mortgage which is assailed by an opposing creditor must establish its validity.
    When notes secured by mortgage, which have once been issued by the maker, return into his possession, the mortgage is extinguished by confusion and can not be revived by a subsequent reissue of the notes after maturity. 19 An. 260; 4R. 416; 20 An. 264.

      Guy M. Hornor for Defendant and Appellant:
    Simulation must be specially alleged. Clarke vs. State Bank of Alabama, 3 An. 325; Spicer et al. vs. Lewis et al, 7 Martin, p. 221; Long vs. Klein, 35 An. 385; Cbopin & Legendre vs. Blanc & Legendre, 25 An. 35.
    Tbe revocatory action is prescribed by tbe lapse of one year. Civil Code, 1987 and 1994; 31 An. 592 ; 24 An. 246;Contevs. Cain, 33 An. 965; Morris vs. Cain, 39 An. 712 and 721.
    “ Wben an actual consideration, no matter how inadequate, has been paid by tbe purchaser in an alleged sale, tbe transaction is not a simulated one.” Brown, Administratrix, vs. Brown, 30 An., p. 966; Renshawvs. Dowty, 39 An., p. 608; Bochelu vs. Catonnet, 40 An. 327.
    “ A mortgage may be given for an obligation which has not yet arisen into existence.” Civil Code, 3292; Morris vs. Cain, 39 An. 712 and 729; Brown vs. Bickers-gill, 7 An. 297; Levy, Jr., vs. Ford, 41 An. 873; Gardner & Co. vs. Maxwell, 27 An. 561; D’Mejavs. Generes, 22 An. 286.
    ' “ It is not necessary that the mortgage should be given by the person contracting the principal obligation; it may be given for the contract of a third person.” Civil Code, 3295,3297,3298; 1st An. 62; Elbert and Husband vs. Wallace & Co., 26 An. 706 and 707.
    “ A promise to the creditor to pay the debt of another is binding, and requires no consideration but the original debt.” Railroad Co. vs. Chapman, 8 An. 97.
    On Motion to Dismiss.
   The opinion of the court was delivered by

Breaux, J.

The testamentary executor of the late Henry Shepherd, claiming a preference under a mortgage, sued out a rule for the cancellation of certain mortgages appearing of record as first in rank and specially alleged that certain taxes were claimed as privileges in favor of the city of New Orleans and of the ‘State of Louisiana against the property seized, on which his mortgage bore; that these taxes, save those for the year 1892, were not due.

An order issued to the present appellant, to the State Tax Collector for the First District of New Orleans, to the recorder of mortgages and the civil sheriff, to show cause why the mortgages and taxes should not be erased and the mover paid from the proceeds of sale in the sheriff’s hands, and it was further ordered that the sheriff in the meantime retain possession of the funds.

Service of the rule was made on the city of New Orleans, the State of Louisiana, and on W. A. Gordon, the appellant.

The sheriff and the recorder of mortgages were not notified.

After legal hearing judgment was pronounced ordering the erasure of the mortgages and the payment of the proceeds as prayed for.

William A. Gordon, one of the defendants in rule above, appeals»

In his petition for an appeal he prays that citation of appeal be served on the plaintiff in rule, and appellee and he alone has been cited to answer the appeal.

. The appellee has moved to dismiss on the ground that the necessary parties have not been cited, and this through the fault of the appellant.

During the trial of the rule in the lower court it was proven that a considerable sum was due for taxes on the property seized.

The proposition that all parties to the record interested in maintaining the judgment must be made parties to the appeal, that all who are not appellants are appellees, and that all the appellees must be cited or the appeal will be dismissed, can not reasonably be controverted.

The question arising on the motion to dismiss^relates exclusively to the interest of the Tax Collector and must be solved by reference to the possibility vel non of a decision on the merits affecting that interest in any manner.

It is well settled in jurisprudence that no appeal will be dismissed unless the appellee shows that he is clearly entitled to that relief.

The appellee on the trial below proved the amount of the taxes and showed that they had been paid.

Upon that evidence the court a qua ordered the sheriff to pay the taxes due.

It was a pro forma order, for they had already been paid.

The mover and appellee has acquiesced in the judgment appealed from in so far as relates to taxes.

The appellant has not contested their validity.

The claim for taxes, and their payment, does not present a single issue to be decided. That matter is at rest.

The State of Louisiana and the city of New Orleans in the matter of taxes have no interest in the success of the appellant or the appellee.

The sheriff was the holder of the funds, and was ordered to pay the taxes. He is not a party to these proceedings.

If the order to pay can be revoked at all it can be revoked only in proceedings contradictorily with him.

His action in paying raises no issue.

All parties acquiesce in the payment as made by him.

The State and city of New Orleans are not placed under the necessity of proving the correctness of the judgment in accordance with which payment Was made.

The motion therefore fails.

Mr. Justice Parlange takes no part.

On the Merits.

Watkins, J.

The plaintiff, under executory proceedings, caused the property of defendant to be seized and sold, and at the sale a sufficient amount was realized to pay his debt with interest and cost, and leave a surplus of $2691.14 in the sheriff’s hands, same constituting the matter of controversy in this suit.

Contemporaneously therewith another executory proceeding was begun on a mortgage second in rank, under the title of Wm. A. Gordon vs. David Mushet, against the same property; and it was also seized under a ft. fa. under a judgment entitled Henry Shepherd vs. Fairchild & O’Brien et als., the defendant here being one of the parties defendant there.

Subsequent to the sale of the property, R. D. Shepherd, as testamentary executor of Henry Shepherd — plaintiff in the suit and judgment last mentioned — took a rule on Wm. A. Gordon, plaintiff in the executory proceedings above mentioned, the State Tax Collector, and the recorder of mortgages. For certainty of statement we have reproduced it from the brief of the counsel for Gordon, as follows, viz.:

“ On motion of R. D. Shepherd, testamentary executor of Henry Shepherd, and on suggesting he is a judgment creditor of David Mushet herein in the sum of $6000, interest and costs, and that certain property belonging to David Mushet has been sold herein by plaintiff under a first mortgage.

“ And on further suggesting the following mortgages appear inscribed against said property prior to that of your mover, namely:

1. One in favor of Wm. E. Huger, book 328, folio 591, for $1500, by act before Charles G. Andry, notary, on the 14th of May, 188V, and recorded on same day.

2. One in favor of Wm. B. Huger, book 372, folio 325, for $1500, by act before Chas. G. Andry, notary, May 8, 1888, recorded on the 9th of May, 1888-

“ 3. One in favor of Wm. A. Gordon, book 372, folio 327, for $2500, by act of 9th of May, 1888, recorded 10th of May, 1888.

“4. And that certain taxes are claimed as privileges against said property as due and owing to the city of New Orleans and the State of Louisiana.,

“And on further suggesting that said purported mortgages, two for $1500 each and one for $2500, are not due or owing by said property, or by said David Mushet, and the recordation of same in the mortgage office deprives your mover of his rights as first judgment creditor, to be paid out of the proceeds of sale after the payment of the first mortgage.

“And on further suggesting, said proceeds of sale amount to the sum of $11,525, in the hands of the civil sheriff of this parish, who threatens, unless stayed, to pay said purported mortgages.

“And on further suggesting that all taxes as against said property, save and except those for the year 1892, are not due or owing by said property.

“It is ordered by the court that William A. Gordon, the State Tax Collector for the first district of this city, the city of New Orleans, and the recorder of mortgages, the civil sheriff, do show cause on the 25th day of July, 1898, at 11 o’clock A. M., why said mortgages and taxes should not be erased and canceled, and why your mover should not be paid from the proceeds of sale in the sheriff’s hands, to the extent thereof in the amount of the judgment as aforesaid, and that in the meantime the said sheriff do hold in his hands the said proceeds of sale after the payment of the first mortgage, for which said property was sold, to abide the further orders of the court.”

It appears that notwithstanding all parties named except the sheriff were duly cited, only Gordon appeared and filed an answer, which is as follows, to-wit:

“First — That said rule does not set forth why said mortgages are not due and owing by said property or by David Mushet.

“Second — That said mortgages having been recorded more than two years before the judgment held by Henry Shepherd became final, the said testamentary executor of Henry Shepherd can not now contest the validity of the said mortgages.

Third — That the action of Henry Shepherd, or his executor, on his rule herein is prescribed, his action being limited by the articles of the Civil Code to one year from the time he obtained judgment against said David Mushet, and exceptor therefore pleads the prescription of one year in bar of tbe action of the plaintiff in rule herein.

“Fourth — Exceptor pleads the prescription of five years.”

During the progress of the trial, the plaintiff in rule filed the following plea of prescription, viz.:

“ The plaintiff in rule, without admitting that the note of $1500, dated May 14, 1887, or the pretended mortgage which purports to secure it, ever had any legal existence, now says that if the same were valid originally, which is denied, the note is now prescribed and the mortgage extinguished.

“Wherefore, reserving all his other pleas and defences herein, the plaintiff in rule now pleads, under the express reservation herein contained, the prescription of five years against the said note and mortgage.”

And after regular submission and argument the judge a quo rendered the following judgment, viz.:

“ It is ordered, adjudged and decreed that the rule herein filed on July 19, 1893, by Rezin D. Shepherd, as testamentary executor of Henry Shepherd, be and the same is hereby made absolute; that the judicial mortgage of the late Henry Shepherd against David Mushet, recorded against the property herein sold, on May 23, 1890, in mortgage book 421, folio 20, has precedence over the mortgage granted by David Mushet in favor of Wm. E. Huger, on May 14, 1887, by act before O. G. Andry, notary public, to secure $1500, interest and costs, etc., recorded on the same day, and over the mortgage granted by the same in favor of the same on May 8, 1888, by act before the same notary, to secure $1500, interest and costs, etc., recorded May 8, 1888, and over the mortgage granted by the same in favor of W. A. Gordon, on May 9, 1888, by act before the same notary, to secure $2500, interest, costs, etc., recordedrMay 10, 1888; and accordingly the civil sheriff, Victor Mauberret, is hereby ordered, alter paying out the proceeds of the sale herein made, the taxes due on the property herein sold and the full amount of the writ under which it was sold, to pay over the surplus of the said proceeds to the succession of Henry Shepherd, represented by the said Rezin D.^ Shepherd, on account of its said judical mortgage, the whole to the exclusion of and by preference over the_defendant in rule, William A. Gordon, and all other persons.”

It is from this judgment that the defendant in rule has appealed.

The serious question in this case is raised on the plea of one year’s prescription that is urged in the answer of defendant in rule, and directed against the proceeding of the executor of Shepherd, as a revocatory action.

This contention is resisted by counsel for the plaintiff in rule — his insistance being that this is neither a revocatory action nor one en declaration de simulation, but that it partakes of the nature of a concursas or tableau of distribution.

They say in their brief, viz.:

“This is not a revocatory action, nor one en declaration de simulation. The appellant is mistaken when he says we urged, in the lower court, that it was the latter. It is a summary proceeding under which all parties claiming rights to a fund realized by judicial process are called to appear before the court under whose order the fund was realized, to assert the validity of their respective claims and counterclaims over it. The court passes upon the issues according to the facts disclosed on the trial of the rule, and classes the privileges and mortgages in a summary manner according to their rank. R. S. 1942; C. P. 126.

“The proceeding partakesoftthe nature of a concursus, and resembles a tableau of distribution to which oppositions have been filed, which ‘ are open to every objection of law and fact, such as minority, fraud, simulation, etc. In case of surprise a remedy may be afforded by a continuance, or even a new trial.’ Succession of Lerude, 11 An. 386, 671; 40 An. 149.”

But in the determination of this question we must be guided by the pleadings, taken as a whole, and not by the character of the rule the plaintiff has elected to adopt.

While it is true that plaintiff’s rule purports to have been taken in the executory proceedings of Denegre vs. Mushet, yet it is a fact that neither of the parties who were cited to answer the rule were parties to said executory proceedings; and neither the plaintiff in the executory proceedings nor the sheriff holding the writ of seizure and sale were cited as parties to the rule.

After enumerating the mortgages that appear of record and as having been inscribed against the property previous to his own, plaintiff in rule alleges'“that said purported mortgages ” — mentioning them — “ are not due or owing by said property, or by said David Mushet, and the recordation of same in the mortgage office deprives your mover of his rights as first judgment creditor, to be paid out of the proceeds of sale after.payment of the first mortgage.”

The provisions of the Revised Statutes upon which the plaintiff’s counsel place their reliance are as follows, viz.:

“ Whenever a conflict of privilege arises between creditors, all the suits and claims shall be transferred to the court by whose mandate the property was first seized, either in mesne process or on execution, and the said court shall proceed to class the privileges and mortgages, according to their rank, in a summary manner, after notifying the parties interested.” R. S., See. 1942. (Our italics.)

It is only “ a conflict of privilege” between creditors that this statute comtemplates, or which authority is thereby conferred upon courts to classify, “according to their rank,” in the summary manner pointed out; it does not purport to give the courts jurisdiction to 'summarily adjudge the validity of debts which are secured by privileges or mortgages, and by that means to displace one and advance the rank of another. It does not purport to authorize mere strangers to the principal litigation to be thus summarily coerced into court and compelled to submit their claim to investigation and judgment.on simple rule without their having resorted to any judicial proceedings looking to the assertion of any claim on the proceeds of sale in the possession of the court.

. The article of the Code of Practice cited is couched in precisely similar terms. Art. 126.

But conceding for the argument that plaintiff’s construction of these provisions of law-is correct, yet it is impossible for a concur sus to have been created und.er the facts of this case — the sale of the defendant’s property having been.made under the mortgage first in rank, the purchaser was entitled to retain and apply the surplus of the price * * * to paying the special mortgages existing on the property subsequent to that of the suing creditor'” (C. P. 707), and, consequently, the sheriff was not entitled to its custody.

And, in so far as the general, judicial mortgage of the plaintiff is concerned the sale was made subject to it. C. P. 679, 710.

The purchaser at sheriff’s sale was not cited nor made a party to the plaintiff’s rule.

The ease of Hibernia National Bank vs. Smith, 27 An. 59, presents a somewhat similar question — though, it was a direct action instituted by purchasers of the mortgaged property at sheriff’s sale made in foreclosure proceedings in the collection of one of a series of several notes secured by the same mortgage, they, having “retained in their hands the remainder (of the price) to pay prior encumbrances.” The suit was accompanied by an injunction, and it had for object the prevention of a sale sought-to be made in executory proceed - ings by the concurrent mortgagees. Of these proceedings the court said, that the various holders of the concurrent" mortgage notes “under which the property was sold were made parties to a kind of concursas. ’ ’

■ Tn Morris vs. Cain, 84 An. 657, in which, among other things, Lobe & Co., as intervenors, claimed the right, as purchasers of the mortgaged property, to have certain other mortgages thereon canceled and ei’ased.

Of the character of this proceeding the court said: “ We have xxo concursas before us.” And ixx treating of their right to proceed as they had done, they further say:

“There can be no doubt that a purchaser at a judicial sale has the right of disencumbering the property adjudicated to him in the same mánner as the expropriated owner could have done had he not been divested of ownership by the seizure and sale — that is, by paying the creditors, to secure whose claims the property was burdened. But although this right is coextensive, it is not greater, and the obligation of payment to which the purchaser may have subjected himself by retaining a portion of the price is not the same. * * * What the rights or claims may be which creditors interested in the amount retained may have, we are not called upon to declare in this controversy, axxd we shall abstain from doing so.

“ Whatever that right and whatever the mode be in which it can be exercised, the order obtained on the proceedings instituted by Lobe & Oo., which we would be made to view as an interpleader, is not sanctioxxed by law or precedents” — citing various authorities.

The ease of Tessier vs. Bourgeois, 88 An. 256, is founded on a rule taken by the administrator of the succession of the mortgagor on the purchaser of the mortgaged property to turn over the surplus of the proceeds after paying off the claim of the ranking mortagage creditor by whom the sale was obtained, all of the other and junior mortgagees consenting and participating.

The court held that in such .case the purchaser’s right to retain the proceeds could not be exercised, the holders of the junior special mortgages having appeared and asked to be paid out of the proceeds of the sale; and similar proceedings (having) been resorted to by all the mortgage creditors, who have thus transferred their rights from the thing to the proceeds.”

Of these proceedings the court said:

“The record shows a eoneursus among all the creditors who could possibly urge any mortgage claim against the property purchased by defendant in rule, who have all transferred their respective and adverse rights from the thing to the proceeds of sale.”

The foregoing decisions make it clear that the instant case is not one of eoneursus. It does not possess any of the essential elements of a eoneursus.- The plaintiff in rule is only a judicial mortgage creditor, altogether without interest in the surplus of proceeds; and the purchaser under the senior special mortgage was not made a party.

Giving to the rule its widest possible scope — and it is manifestly irregular and wanting in essential averment — it must be viewed as a revocatory action pure and simple. It is not an action en declaration de simulation in any sense. Viewed in this light it is evident that the defendant’s plea of prescription of one year, as against a revocatory action, is good and should have prevailed in the court a qua (R. O. O. 1994) ; for it declares that “the' action given by this section is limited to one year; if brought by a creditor individually, to be counted from the time he has obtained a judgment against the debtor.”

The judgment rendered against the defendant, Mushet, in the case of Henry Shepherd vs. Fairchild & O’Brien et al. bears date May 14, 1890, and plaintiff’s rule was filed on the 19th of July, 1893, and consequently more than the prescriptible length of time had expired at that date.

In the opinion or decree of the judge a quo nothing appears to indicate his views on this question, he having apparently assumed the position of the plaintiff to be the correct one and dealt with the merits alone, making no mention whatever of the defendant’s plea of prescription.

It is our deliberate conviction that the plea of prescription should have been maintained, and that the judgment appealed from should be reversed.

It is therefore ordered, adjudged-and [decreed that the judgment appealed from be reversed and annulled; and it is further ordered and decreed that there be judgment in defendant’s favor, taxing all costs of both courts against the plaintiff and appellee.

Mr. Justice McEnery, not having heard the argument, takes no part.

Mr. Justice Parlange recuses himself, having been consulted as counsel.


source: Caselaw Access Project

author: Breaux, J. McEnery, J.

license: Public Domain

text:
    No. 11,327.
    State ex rel. Algiers Brewing Company vs. Fred. D. King, Judge Division B, Civil District Court.
    The only issue is whether the relator is entitled to a suspensive appeal from an order appointing a receiver.
    Tire court of the first instance having acted upon the resolution of the company consenting to the appointment of a receiver, a suspensive appeal will not lie from the decree of appointment without proof that the resolution was ultra vires, or that it was, in other respects, illegal and improper.
    The remedy to correct the alleged illegality in the appointment of a receiver is by rule to s et aside and vacate the order of appointment, and, if the rule be denied, to appeal from the decision.
    Whether the company consented legally is a question of proof to be considered on the trial of a rule.
    y^PPLICATION for Mandamus and Prohibition.

      Henry P. Dart and P. B, Thomas for the' Helator:
    1. On this application the only issue is whether the relator is entitled to a suspensive appeal from the ex pw'te order appointing a receiver — the correctness of the judgment will be passed upon when the record is brought up regularly for review. Ex pcvrte Emanuel, 4 An. 424; Street’s Case, 85 An. 516; Ingram’s Case, 20 An'. 530; Cain’s Case, 20 An. 574; Geddes’ Case, 36 An. 302, 210.
    2. An affidavit by a third person, showing the nature and extent of his interest and the irreparable injury to be suffered, is according to the received practice; if the interest is controverted below, testimony may be taken on the issue thus raised: if the question is raised here for the first time the case will beremanded to discuss that issue with proper reservation of relator’s rights, unless on the face of the record the interest is apparent. Bonnet’s Case, 29 An. 397; Succession of Henderson, 2 Rob. 391; Street’s Case, 35 An. 516; Ober vs. Excelsior Co., 44 An. 573.
    3. A stockholder of the corporation thus placed in charge of a receiver has the right to suspensively appeal from the judgment. Morey’s Case, 31 An. S25.
    4. Where the sole issue presented by the demand is the appointment of a receiver, a judgment making such appointment is a final judgment, responsive to the allegations and settling all the issues between the parties.
    If held to be interlocutory it causes irreparable injury, for having been immediately executed it dispossesses defendant of its property, suspends its corporate functions and immediately fastens upon it the condition of an insolvent concern in process of liquidation; there remans nothing to do toward that end save to close out judicially its assets. C. P. 566, 580; Carey vs. Richardson, 85 An. 505.
    5. Unless the denial of a suspensive appeal in such case rests upon the exceptions contained in C. P. 580, the appeal must be granted, as the designation of certain.judgments has been interpreted as intentional omission of all others. Ingram’s Case, 20 An. 529; Cain’s Case, 20 An. 576, 577; G-eddes’ Case, 36 An. 301.
    6. An ex parte order appointing a receiver is an absolute nullity, and will be reversed for that cause on appeal. Ober vs. Excelsior Co., 44 An. 571; State ex rel. Britten, 43 An. 832; Turgeau vs. Brady, 24 An. 348; Martin vs. Blanchin, 16 An. 237; High on Receivers, Sees. Ill, 112, 346; State ex rel. Morey, 31 An. 823, 836; Reder vs. Maas, 34 An. 130.
    There is no authority requiring the taking of a rule to rescind such judgment, leaving the assets in control of the receiver; “a judgment rendered in his favor after years of litigation restoring to him his property would come too late to afford a remedy. The injury might be irreparable,” DeBaillon vs. Ponsony, 5 N. S. 42; State ex rel. Taylor, 26 An, 65; Street’s Case, 35 An. 516, 517; Analogous cases, 12 An. 455; 35 An. 745; 2 Rob. 342; 23 An. 50-52.
    7. Whether defendant (under the peculiar allegations of plaintiff’s petition) con sented is a question of proof to be considered when th e record is regularlyhere on appeal.
    If considered now the alleged consent must be taken in its entirety — a consent to a judgment in favor of another plaintiff to be rendered and executed in an., other forum, looking to the appointment of a receiver acceptable to stockholders, mortgage bondholders and creditors, can not be construed into a consent to the proceedings here complained of.
    The consent can not be divided.
    If taken as a whole, the judgment rendered in this cause is in flat derogation of its terms and contrary to the principles established in similar cases. In re Savings Bank, 35 An. 200; In re Herdic Coach Company, 35 An. 246.
    Where a judgment rendered on the written consent of parties does not conform to that consent, either may appeal to correct the error. Sprowl vs. Stewart, 19 An. 433; Police Jury vs. McDonogh, 8 An. 342.
    8. The acquiescence by the board of directors of a corporation in a judgment appointing a receiver must be accepted as a whole. If on conditions which are not permitted by the court it is no acquiescence. In any event these officers can not consent to the appointment of a receiver; such an act is ultra vires. State vs. Atchafalaya Railroad, 5 R. 68; Curein vs. Santini, 16 An. 27; State vs. Bank, 31 An. 831; Morawstz on Corporations, Secs. 512, 513.
    The acquiescence must furthermore be absolute C. P. 567; Jackson vs. Michie, 33 An. 727; Succession of Lamm, 40 An. 312; Meyer vs. Schurbruck, 37 An. 373, Buntin vs. Johnson, 27 An. 625.
    Third persons can not be prejudiced by defendant’s acquiescence. State ex rel. etc., 29 An. 146; Lawson vs Bruenn, 29 An. 868.

      Horace E. Upton and Lazarus, Moore & Luce contra:

    No appeal lies from the orders of the lower court, on an ex parte application of a third person, without proof, contradictorily taken in the lower court, of the interest of said third person and the irreparability of the injury to be sustaine 34 An. 3; 32 An. 1192; 33 An. 108; 24 An. 426 ; 7 N. 8. 345.

      Tile remedy to correct the improvident and irregular appointment o£ a receiver is by rule to set aside and vacate the order of appointment, and if that rule be denied, to appeal from the decision. 43 An. 123; 43 An. 829; 8 Paige (N. Y.j 481.
    Relators having acquiesced in and approved of the appointment of a receiver, are precluded and estopped from appealing therefrom.
    An interlocutory order declaring the necessity for the appointment oí a receiver, and appointing the same, can not work irreparable injury, inasmuch as it is not a definitive judgment which can acquire the force of res judicata. Coats vs. Cunningham, 80 111. 467, and authorities; Adams Eq., 6 Am. Ed. 684, 688, 689; 3 Stockton,126; 6 Howard (U. 8.), 204; 4 Scan. 326; 5 Glim. 35; 21 111. 207; 13 111. 31; 15 111 228.
    In no event can a suspensive appeal be taken from an order appointing a receiver, same being one of that class of orders which are executed provisionally, notwithstanding an appeal. C. P. 580, See. 2.
   The opinion of the court was delivered by

Breaux, J.

The relator is engaged in the business of brewing and selling beer and is the owner of a brewery.

On 28th August, 1898, the Lafayette Bank of Missouri, claiming to be a creditor, instituted suit and applied for the appointment of a receiver.

A receiver was appointed; he qualified and took possession of the property.

The relator moved the court to grant it a suspensive appeal from the judgment appointing a receiver, as well as from all other orders granted under the order of appointment.

The court declined to grant the motion.

The writs applied for from this court are for the purpose of compelling the district judge to grant the order of appeal for which an application was made.

The relator in the petition for writs of mandamus and prohibition substantially alleges that it is true that after the appointment of the receiver the board of directors of relator were induced to hold a meeting and were misled into passing a resolution framed as follows:

“New Orleans, August 31, 1893.

“ The board met to-day with the following members present: Dr. E. Y. Ames, J. J. Clarke, William Gaiser, H. Y. Boubade, J. M. Lotz and F. A. Godefroy.

“ The president called the meeting to order- and stated that the purpose was to explain the situation now existing with reference to the pending suit of the Lafayette Bank, of St. Louis against the Algiers Brewing Company, in which application has been made for the appointment of a receiver, and John H. O’Connor has been appointed a receiver. The necessity for the appointment being recognized and the appointment having met with the approval of the board after discussion, it was moved by Mr. Lotz, seconded by Mr. Godefroy, that Dr. E. Y. Ames be suggested and recommended to the court for and in behalf of this corporation to act- as co-receiver in the suit of the Lafayette Bank of St. Louis vs. Algiers Brewing Company, with John H. O! Connor receiver herein, said suit being now pending in the Civil District Court for the parish of Orleans.

11 It was further resolved that a copy of this resolution be presented to the Hon. E. D. King, judge of said court, accompanied by a petition containing proper averments asking for the immediate appointment of Dr. Ames as co-receiver in the interest of the stockholders of the company.”

The relator alleges that the board subsequently rescinded the foregoing resolution as ultra vires, null and void, and instructed their attorney to take immediate steps to revoke the appointment of J. H. O’Connor as receiver and to restore the property of the brewery to its previous condition; that the rescinding resolution was presented to the Civil District Court and permission asked to have it spread upon the records of the court, which permission was refused.

The respondent judge returns that the Algiers Brewing Company having, by resolution, approved the appointment by the court of a receiver, he declined to allow a resolution purporting to rescind the action ex parte to bb spread on the minutes; the court considering that if there is any error in the order appointing a receiver, that the proper mode of procedure is that pointed out in Whitaker vs. Ash-bey, 43 An. 123, and State ex rel. Brittin vs. New Orleans, Id. 829, to move for the rescinding of the appointment ordering a receiver.

That he was not advised as to the truth or falsity of the allegations of the relator, that the resolution consenting to and approving the appointment of a receiver was the result of surprise, deception and misinformation as alleged; that if they are true and it constitutes in law cause for the annulment of the orders made by him, such orders could have been rescinded, on motion to that effect, after trial contradictorily with all parties in interest; that he suggested and invited from the bench such action, and assured counsel that he would make such rule returnable within the shortest possible delay

He denies that the action of the board of directors in approving and consenting to the appointment of a receiver is ultra vires.

That whether ultra vires or not depends upon the terms of the charter of the Algiers Brewing Company and the action of the stockholders. That these facts can be determined only by evidence taken contradictorily with all the parties in interest in the court of the first instance.

That if a rule had been taken out as suggested by him, investigation and inquiry could have been had and decision thereon rendered, but relator failed and neglected to adopt such a course, clearly pointed out by law.

The relator on the face of the papers having acquiesced in the appointment and voluntarily ratified the decree of appointment, the Supreme Court will not set aside the order granted and thus ratified without evidence showing the necessity for rescinding the decree appointing the receiver.

The order of the court of the first instance was based upon the consent of the board of directors.

We will not assume, without any evidence before us, that the court erred in thus placing confidence in the first resolution adopted by the Algiers Brewing Company approving the appointment of a receiver.

If, as alleged, there was deception practised which influenced the board, and if the action was ultra vires, and if other grounds of nullity pleaded are cause sufficient to set aside the order appointing a receiver, they should be brought up, after hearing, contradictorily with the parties in interest.

The court will not assume that the grave charges made are true and proceed to a hearing upon that hypothesis with the view of rescinding the order of appointment.

The granting of a suspensive appeal upon those grounds would have the effect of temporarily sanctioning the charges, as if proven.

Upon unproven averments the Algiers Brewing Company, would suspend the execution of an order to which it consented.

Such would be the effect of a suspensive appeal. Parties can not sustain contradictory positions.

It would be encouraging proceedings to no purpose to grant a suspensive appeal.

Therefore we will not grant the writs applied for by the relator, and we relegate them to the District Court of original jurisdiction or any remedy to which it may be entitled.

Whether the company consented legally is a question of proof, which must come to this court, as proof in other cases is brought up, on an appeal.

It is ordered, adjudged and decreed that the restraining order be rescinded and relator’s demand rejected.

Dissenting Opinion.

McEnery, J.

On August 28,1893, the Lafayette Bank of St. Louis filed a suit in the Civil District Court for the parish of Orleans, for the appointment of a receiver to the Algiers Brewing Company.

In the application for the appointment of a receiver j it is averred that the management of the company was characterized by waste, extravagance and recklessness; that the mortgage bonds of the company were sold at the rate of fifty cents on the dollar by said company as the result of a combination and conspiracy between the management of said brewing company and certain persons named in the petition; that a great number of suits were pending against said company; that the entire plant was under seizure in the suit of August Borman vs. said company, to satisfy a debt of $333.33, in pursuance of a judgment rendered in said suit, and the same was authorized to be sold by the sheriff; that certain parts of the machinery of said company were in the hands of the sheriff under writs issued in the suit of First National Bank of Chicago vs. said company; that six mules were also under seizure in another suit against said company ; that certain members of the board of directors, acting in concert with certain stockholders of said corporation and certain bondholders, had conspired and confederated together to obtain possession of the entire plant of said corporation in satisfaction of their bonded indebtedness under consent proceedings to be instituted in the United States Circuit Court; that the board of directors and stockholders of said corporation had passed a resolution and signed a paper agreeing and consenting to an application about to be made on behalf of one of the bondholders, acting for himself and the other bondholders, for the immediate appointment of a receiver to administer the property of said corporation through the interposition of the United States Circuit Court, thus establishing consent to the appointment of a receiver and recognizing the necessicy therefor. The corporation is alleged to be in an insolvent condition.

On this application an ex parte judgment was rendered appointing a receiver to be “invested with all the powers with which receivers are invested under the law.” He was directed to take charge of the property of the corporation, and the proceedings in case of Borman vs. said company were ordered stayed and the mules and machinery sequestrated in the other suits were ordered in the possession of the receiver without prejudice to the rights of the seizing creditors under their writs.

Accompanying the petition the plaintiff, who applied for the order, filed some evidence to substantiate the allegations in the petition. But the proceedings were conducted contradictorily with no one, and the judgment appointing the receiver was solely ex parte.

Within ten days after signing the ex parte judgment appointing a receiver, the relator applied for a suspensive appeal from the judgment and tendered a bond. The appeals were refused. Hence the application to this court for the necessary writs to enforce the granting of the appeals.

In the briefs filed there is considerable length devoted to the question whether or not the respondent judge had the power to issue the ex parte order appointing a receiver.

The order may or may not have been properly granted. This question can only be determined when the judgment is before us on appeal. Our inquiry is now restricted to whether the relator is entitled to a suspensive appeal from the ex parte judgment.

The application for the suspensive, appeal is resisted on the following grounds: (1) That the creditors and stockholders were not par ties to the judgment, and as third parties they must produce proof, which must be established contradictorily with the parties to the judgment, that they have an appealable interest; (2) that the judgment is interlocutory and works no irreparable injury; (3) that the remedy to correct such an appointment is by rule to set aside the judgment, improvidently granted, and an appeal from the judgment on the rule.

The other grounds of consent to the appointment of a receiver and the acknowledgment of its necessity properly belong to the investigation of the rightful issuance of the order from which an appeal is asked.

1. On the first point it is evident that in the present proceeding the question raised properly belongs to the proceedings on appeal in a motion to dismiss the appeal. In application to this court in the first instance for writs, the interest of the parties is presented on a prima faeie showing. The petition of relator shows an appealable interest, and this petition is accompanied by his affidavit. Even when the appeal is on file in this court it is sufficient if the record shows a pecuniary interest. State ex rel. Bonnet vs. Judge at hoc, 29 An. 397.

In the case of Insurance Co. vs. Costa, 32 An. 3, this court said that this pecuniary interest may be shown by proper affidavit, indicating the nature and extent of the right imperiled by the decree and by the recitals of which the opposite parties would be so minutely informed as to be enabled to conclude, by an inspection of the evidence itself, whether to contest or acknowledge the applicant’s right to an appeal.

2. An interlocutory order is something which is ordered by the court between the commencement and end of a suit which decides some preliminary part or matter, which, however, is not a final decision of the matter in issue. Erom this class of decrees an appeal is permitted when an irreparable injury may result from its enforcement. But in a judgment appointing a receiver certain facts have to be presented and passed upon by the judge-to whom the application is presented, and the decree in such a case possesses some of the elements of a final judgment, which requires the signature of the judge and belongs to that class named in the Code of Practice, distinguishing them from interlocutory orders, which do not require the signature of the judge, but which must be correctly entered in the record. Code Practice, 537, 544, 546; Starke vs. Burke, 9 An. 345.

The facts alleged by respondent in his application for the appointment of receiver, such as the abandonment of the franchises of the corporation, its insolvency, and the conspiracy between the shareholders and directors, are matters which by a definite judgment may become res judicata between the parties to the litigation. Code Practice, 539.

A judgment contradictorily rendered is that which has been given after the parties have been heard, either in support of their claims or their defense. Code Practice, Art. 535.

The usual method of appointing a receiver is after the parties have been heard, and a judgment is rendered on the facts presented. That there is a consent judgment does not detract from the force of the judgnient, as the facts are admitted and proof by witnesses and documentary evidence dispensed with. All such judgments have to be signed as final judgments, which may become definitive as to the issues presented by abandoning an appeal, or by a final' judgment of the appellate court.

From all such judgments an appeal will lie, and the reports of this State will show that appeals from judgments appointing receivers have never been denied.

3. It is urged by plaintiff and respondent that the relator should have provoked a rule to set aside the ex parte judgment appointing a receiver, and an appeal should have been taken from the judgment on the rule.

I fail to see the force of this argument. In some cases in the exercise of the supervisiory jurisdiction of the Supreme Court over inferior tribunals, it may be required that the applicant for relief exhaust his remedies in the lower court. In the exercise of the right of appeal if the party east could appeal from a judgment rendered contradictorily with him, there seems to be a stronger reason why he should be permitted to do so if the proceedings leading to the judgment have been ex parte and irregular.

What reason is there for the proposition that the defendant should proceed by rule and ask a reversal of the judgment as a prerequisite to an appeal? The presumption is that the judgment is valid, and why should the defendant require the court to reverse its proceedings as irregular and proceed regularly to pronounce judgment before an appeal should be allowed? The time of the court should not be occupied in order to reach such a result when it can be accomplished by a direct proceeding by appealing at once from the judgment. It avoids expense and delay, and the convenient and speedy administration of justice is the first consideration of courts in the disposal of cases. But it is from the judgment rendered from which the defendant has the right to appeal, no matter how rendered, so that it is final, or an interlocutory order that may work an irreparable injury. The jndgment may be null and void from irregularities in the proceedings. The defendant has the right to attack it and have its nullity declared, either by appeal or an action of nullity. The relator herein has chosen the first mode of proceeding — by an appeal, a constitutional right which can not be denied him. State ex rel. Johnson vs. Judge, 36 An. 210; State ex rel. Morey vs. Judge, 31 An. 823-836.

4. It is suggested in respondent’s brief that the action of the court in the appointment of a receiver is not reversable on appeal.

This doctrine has been unquestionably held in other jurisdictions) but in this State there is no statutory proceeding authorizing the appointment of a receiver to a corporation, and the assumption of such authority by the courts has only been in extreme and special cases, such as where the property of the corporation has been abandoned or where there are no persons authorized to take charge of orto conduct its affairs. Baker vs. Railroad Co., 34 An. 754; State ex rel. Brittin vs. City, 43 An. 830.

And this authority has heretofore been exercised when all the parties were before the court.

Whether there was a consent proceeding in the lower court to authorize the ex parte judgment appointing the receiver can only be determined when all the facts, are before us on appeal.

The respondents contend that in no event is the relator entitled to a suspensive appeal, and Art. 580 of the Code of Practice is referred to as being conclusive on this point.

The judgments which are executed provisionally are mentioned in said article and rendered in the matter of the appointment of tutors and curators of incapacitated persons, and syndics of creditors where they are ordered to administer provisionally as creditors of Vacant successions. The reasons for these exceptions are obvious. The necessity for some one to take care of the incapacitated persons or vacant estate is imperative, and the syndic provisionally appointed remains in charge, of the provisional administration only, without power to sell, his acts only being conservatory until a regular syndic is elected by the creditors. In this case there was no provisional appointment of a reeeiverjwith power limited to conservatory acts, but he has the amplest power under the order for a full administration, extending to the sale of the effects under the order of court and a general winding up of the concerns of the corporation. .

The article referred to does not include a judgment relating to such matters.

If a party has a right to appeal, the rule is that he can appeal suspensively, and I find no exception to the judgment in appointing a receiver to a corporation jwith full powers of administration. The directors had no power to[eonsent to the appointment of a receiver. The shareholders only couldigive this consent. The directors are only the agents of the shareholders and can not do any act not authorized by the charter.

Rehearing refused.


author: Breaux, J.

text:
    No. 11,330.
    State ex rel. William Gaiser vs. Fred. D. King, Judge.
    The courts have power to appoint receivers of corporations whenever necessary to preserve the interest of all concerned, and those who have ratified the appointment can not recall their consent, and in e® paA'te, proceeding prosecute a suspensive appeal from the order appointing the receiver.
    The order appointing the receiver in effect sustains the status quo of the corporation, and was issued to prevent instead of to cause injury.
    Should it become apparent that the injury is actual or threatening, the appeal will be allowed upon proper application.
    The writ prayed for to compel the district judge to grant a suspensive appeal is refused.
    ^PPLICATION for Mandamus and Prohibition.

      Henry P. Dart and P. B. Thomas for the Relator.

      Horace E. Upton and Lazarus, Moore & Luce contra.

   The opinion of the court was delivered by

Breaux, J.

The Algiers Brewing Company is a corporation organs ized under the general incorporation laws of the State.

There exists against it mortgages and unsecured debts in an amount in excess of its assets.

It is alleged that the management was characterized by waste, extravagance and recklessness; that the mortgage bonds of the company were sold by the company at the rate of fifty cents on the dollar, in accordance witih a combination entered into between the management of the company and certain persons named; that there are a number of suits pending against it, and the entire plant was under seizure in the suit of August Borman vs. The Algiers Brewing Company, to satisfy a debt of 1333.35, and advertised for sale, and that part of the machinery had been sequestered; also, a number of mules of the company. That members of the board of directors, acting with certain stockholders, had combined and conspired to obtain possession of the entire plant in settlement of bonded indebtedness under consent proceedings to be instituted in another court.

The Lafayette Bank of St. Louis filed in the court a qua a suit for the appointment of a receiver to the Algiers Brewing Company.

The district judge in appointing the receiver, on the application made, states, as reason, that the sale of an important part of the machinery necessary to conduct the business of the brewery will operate to the injury of all concerned.

That it is a proper case for the exercise of the equitable powers of the court in the interest of all the creditors.

And he directed the receiver to take charge of the property; to inventory it, and report to the court, within ten days, the property owned by the company, together with an appraisement; that he take oath to discharge the duties required and furnish bond in a stated amount.

The sheriff was directed to suspend the sale under the execution issued until the further orders of the court; the receiver was authorized to take possession of the property seized and of the property sequestered, without prejudice to the rights of the respective plaintiffs, and to retain possession until the further order of court.

In support of his action in issuing the above order, the respondent returns that the Lafayette Bank of St. Louis filed in the court over which he presides, in the suit of that bank against the Algiers Brewing Company, a certified copy of the bill of the Tinker & Smith Malting Company vs. Algiers Brewing Company, praying for the appointment of a receiver by the. Federal court, which bill was verified by the oath of their solicitor, together with the resolution of the Algiers Brewing Company passed on the 20th of August, 1898, at a meeting at which the relator, as a director of the company, was present and voted fer the appointment of a receiver.

Demonstrating the absolute necessity, advisability and prudence of the appointment of a receiver for the administration of the affairs of that brewing company, the solicitor in the answer before that court alleged, “ for further answer respondent says that it believes the true interest of all the creditors, secured and unsecured, as well as the stockholders of said company, requires the appointment of a receiver.”

That subsequently the board of directors of the Algiers Brewing Company adopted a resolution recognizing the necessity for the appointment of a receiver and approved the appointment that had been made by the respondent. The relator as a director took part in the meeting and voted for the approval as adopted by the board.

A creditor for a large amount and several bondholders intei'vened and opposed the relief sought.

The respondent further returns that the attorneys for relator applied for a suspensive appeal from the judgment rendered August 29, and from all other decrees and orders entered.

That he refused to grant an appeal because the orders rendered did not occasion irreparable injury; that there is no law authorizing such an appeal; that the mover for the appeal was a member of the board of directors of the company and approved the appointment.

The respondent also states that on the same day the Algiers Brewing Company offered to have spread on the minutes of the court what purported to be a copy of a resolution of the board of directors of the company revoking the action of the board of 31st August, 1893, approving the appointment of a receiver.

The court declined to permit the filing of this copy and states as ground for refusal that if there is any error in the order appointing a receiver, the proper mode of procedure is that pointed out in 43 An., Hackett vs. Creditors; that is, to move for the rescinding of the appointment ordering a receiver, and then the resolution of the board of directors complained of can be offered in evidence and the court’s action obtained. The relator also returns that, if the charges be true that the resolution of the 31st August, 1893, approving the appointment of a’, receiver, was the result of a surprise, deception or misinformation, and it constitutes a cause for the .annulment of the orders issued, they could have been rescinded and annulled on motion to that effect and after trial contradictorily with all parties in interest.

That he suggested and invited from the bench such a course, and assured counsel for relator that he would make such a rule returnable within the shortest possible delay.

The respondent denies that the action of the board of directors is ultra vires, or that whether ultra vires or not depends upon a question of fact, that is the charter, which fact can only be determined after evidence taken contradictorily with the parties in interest, which course the relator refused to follow.

In litigation pending before the court a qua, that tribunal became impressed with the necessity of maintaining the status quo of the Algiers Brewing Company during the trial of issues over which it had jurisdiction.

The strongest possible allegations, verified by oath, had been made against the management, and interested parties had expressed apprehension, in legal form, of irreparable and unavoidable loss, if action was not taken to prevent it.

Thereupon the court issued orders in effect judicially sequestering the property and placing it in the hands of a receiver.

They are specific and guarded.

The receiver was made to qualify and give a bond in an amount the court deemed sufficient.

He was directed to appraise the property and make an inventory, and a time was stated for his return.

He was specially enjoined not to sell any property and was charged with administering the affairs of the corporation in the interest of all concerned.

These legal steps, at first, met with the approval of the relator.

Subsequently, after preliminaries toward administering the affairs of the company had not only been taken, but had become accomplished facts, the receiver had qualified, was in possession and administering under the orders of the court, the relator appeared in court and moved for a suspensive appeal.

The effect of this appeal will be to set aside all that has been done and revoke, for the time being at least, all that was sought by the order.

There is no injury possible, either immediate or remote, such as the law contemplates in order to give a right of appeal.

If the court’s authority’be sustained there can not be any disposition made of the property in violation of law, and without an effective remedy.

The possibility of irreparable injury was the moving cause in obtaining the court’s order.

The relator, who joined in the proceedings to that end, can not ex parte be heard to set proceedings aside by a suspensive appeal on motion without notice to other interested parties, especially as we do not discover that in the proceeding to prevent irreparable loss an irreparable loss is threatened which gives the moving party a right to a suspensive appeal. '

We confine our decision to the question of irreparable injury and determine nothing further than that there is no(j in the case as presented an irreparable injury authorizing an appeal at this time.

Should it be made apparent hereafter that there is such injury, .either actual or threatening, the appeal will be allowed upon proper application for an appeal.

It is therefore ordered and decreed that the restraining order herein granted be set aside, and that the relief prayed for be refused at relator’s costs.


text:
    No. 11,328.
    State ex rel. Fox & Searles vs. Fred. D. King, Judge Division B, Civil District Court.
    The same issues are presented in State ex rel. Gaiser vs. Judge, No. 11,380, slightly varying in statement, and as the reasons and authorities therein given are directly applicable, a conclusion similar is followed.
    The only question is one of authority vel non to appoint a receiver, and the legality of a resolution of the company approving the appointment.
    The issues must come up on appeal, if at all, after proof heard before the court of first instance.
    A PPLICATION for Certiorari, Prohibition and Mandamus.

      Henry P. Dart and F. B. Thomas for the Relator.

      Horace E. Upton and Lazarus, Moore & Luce contra.

   The opinion of the court was delivered by

Breaux, J.

The grounds on which the relators claim relief are, that on the 28th August, 1893, the Lafayette Bank of St. Louis, corespondent herein, filed a suit in the Civil District Court, in which the single issue was the appointment of a receiver, the c.ourt being incidentally requested to stay certain proceedings against the Algiers Brewing Company, the party defendant therein, an alleged insolvent corporation. That they are a commercial firm, domiciled in the city of New York, and doing business under the firm name and style of Fox & Searles, and ordinary creditors of the defendant, in the-sum of $500, less a credit of $99.30, represented by a promissory note, and in a second sum of $3064.

That the defendant company is owner of the Algiers Brewery, which has a value in excess of $200,000. That upon the averments of plaintiff’s petition an order was granted by the respondent judge, in vacation, ex parte and without notice to the stockholders or to the brewing company, or to any other person or creditor interested, and which is to the following purport:

That considering the existence of certain suits against and seizures of the property of the brewing company, and that the defendant corporation, through its board of directors, has consented to the appointment of a receiver; and further considering that the sale of an important part of the machinery necessary to conduct the business of the brewery, is about to take place, and that a sale will operate to the manifest injury of all concerned, unless the order to sell is stayed; and further considering that this is a proper case for the exercise of the equitable powers of the court, in the interest of all creditors, secured as well as unsecured, and for the appointment of a receiver to take charge and conduct the business of the corporation, subject to the order of the court, or to make such disposition of the property as is fair, equitable and just, a receiver is hereby appointed and entrusted with all powers with which receivers are invested under the law.

The order further directs that the receiver appointed shall take charge of the property and effects of the corporation, and cause same to be inventoried and appraised, and that the civil sheriff be directed and required to suspend the sale under ft. fa. in his hands as well as all other proceedings under the writ of sequestration.

Of the foregoing proceedings and order the relators complain that within ten days of its rendition they applied to the respondent judge ' for permission to intervene in said suit for the sole purpose of appealing suspensively from said order, and thereupon moved the court for a suspensive appeal returnable to this court tendering bond and security and that the respondent refused his application.

The grounds assigned in argument by counsel for respondent are as follows:

1. That creditors can not as third persons appeal ex parte without proof contradictorily taken to establish an interest.

2. That the judgment complained of is interlocutory and does not work an irreparable injury.

8. That the remedy for any injury such an order may inflict is by rule to have the order set aside.

The same issues are presented in State ex rel. Gaiser vs.' Judge, No. 11,330 post, slightly varying-in statement, and as the reasons and authorities therein given are strictly applicable, we adopted them as decisive in this case. .

It is therefore ordered, adjudged and decreed that the rule nisi be set aside and relators’ demand rejected at their cost.


text:
    No. 11,329.
    State ex rel. George D. Feldner vs. Fred. D. King, Judge Division B, Civil District Court.
    Same as in State ex rel. Gaiser ys. Judge, No. 11,830.
    The rule nisi is vacated and the writs applied for are refused.
    ^^PPLICATION for Certiorari and Mandamus.

      Henry P. Dart and F. B. Thomas for the Relator.

      Horace E. TJpton and Lazarus, Moore & Luce contra.

   The opinion of the court was delivered by

Breaux, J.

The only question to be determined is the right of an alleged stockholder in a joint stock company to appeal vel non from a judgment appointing a receiver to the company.

Contradictorily with the officer of the company a receiver was appointed ; after his appointment he qualified and was placed in charge of the affairs of the corporation under an order of court.

A prima facie showing was made of acquiescence on the part of the board of directors.

This acquiescence was an issue in the case of the State of Louisiana ex rel. William Gaiser vs. King, Judge, decided recently by this court.

The legal question is similar in every respect in this case.

The cases'were submitted at the same time and the points are argued in one brief.

For reasons assigned in the Gaiser case it is ordered, adjudged and decreed that the restraining order be set aside and the relator’s demand rejected at his costs.


text:
    No. 11,416.
    State vs. H. H. Stewart.
    The judge refused to permit the district attorney to move for the forfeiture of the bail bond of the accused on the second day ®f the criminal term, and based his ruling, in thus ruling, upon proof that the accused was prevented from attending court by physical disability.
    The Attorney General and the district attorney of the district admit that the ruling was correct, and consent to the dismissal of the appeal.
    APPEAL from the Tenth District Oonrt, Parish of Natchitoches. Andrews, J.

      M. J. Cunningham, Attorney-General, and Pharor Breazeale, District Attorney, for Plaintiff and Appellant.

      Pierson & Porter for Defendant and Appellee.
   The opinion of the court was delivered by

Breaux, J.

The appeal was prosecuted by the district attorney from a ruling of the court a qua refusing to permit him in behalf of the State to forfeit the bail bond of the accused on the second day of the term.

The ruling of the court is sustained by the evidence.

It was proven that the accused was prevented from attending court by physical disability.

Counsel for the accused interposed a motion in this court to dismiss the appeal, averring the correctness of the ruling o'f the District Court.

The Attorney General and the district attorney who conducted the prosecution admit that the appeal has no merit, and consent that it be dismissed.

The appeal is dismissed.


author: McEnery, J.

text:
    NO. 11,418.
    State ex rel. Police Jury of St. Martin Parish vs. A. A. Dupre, Justice of the Peace.
    Where a party appears and excepts to want of citation in a cause, which is overruled, and he then, reserving his rights under the exception, files a plea to the jurisdiction, the latter plea is not such an appearance as to cure the want of citation

      The political corporation known as a parish may be sued within its territorial limits in any court of competent jurisdiction.
    Under the provisions of Art. 1077, Code of Practice, any constable of the parish can serve the citation issued by a justice of the peace. If the constable is an interested party the citation must ho served by another constable or the sheriff.
    y^PPLICATION for Certiorari aud Prohibition.

      B. B. Broussard, District Attorney, for the Relator.
    Respondent in propria persona.

   The opinion of the court was delivered by

McEnery, J.

J. O. Halphin, Jr., brought suit against the parish of St. Martin for a small sum, unappealable in amount.

Bug. A. Duchamp is president of the police jury of said parish.

The citation was addressed to him personally and individually. The police- jury of said parish filed an exception to the citation on this account. The exception was overruled. Reserving the rights in the exception the defendant police jury filed an exception to the jurisdiction of the court, ratione persones, alleging that the police jury must be sued at the domicil of the parish, which was in the first ward instead of the fifth, in which the parish was cited to appear.

The citation was defective, as the parish had not been properly cited, through its official head the president of the police jury of said parish. The appearance in the exception to the jurisdiction did not waive the defective citation, as all rights were reserved when the exception to the jurisdiction was filed, that were urged in the exception to the citation. Lukis vs. Allen, opinion on rehearing, recently decided. 45 An.

The relator therefore prays for a writ of prohibition directed against the respondent justice on account of the nullity of the proceedings for the defective citation and the want of jurisdiction. On the first ground the application for the writs must be sustained. We will notice the second, because the case may be further prosecuted on a legal citation, and the second ground may again be presented.

The police jury of St. Martin parish holds its sessions and transacts its business in the first ward at the parish site. But this does not fix the presence of this political corporation exclusively at this point. It is present everywhere throughout the territorial limits of the parish, and may be sued like the State when its permission is granted for this purpose, in any court of proper jurisdiction, within its territorial limits. State ex rel. Police Jury vs. Judge. 41 An. 403.

Objection is also made to the service of citation by the constable of the fifth ward. In this, as in the objection to the jurisdiction, the rights of the exception to the citation were.reserved.

Art. 1077 of the Code of Practice says that “when a suit is instituted before a justice of the peace he shall make a note in his record of the date and nature of the demand, and shall immediately prepare a citation setting forth the amount and nature of the demand, to call the defendant before him to answer said demand, and he shall deliver said citation to any constable of the parish that it maybe served on the defendant.”

If the constable is an interested party, as alleged by relator, the service of citation must be made by some other constable of the parish, or the sheriff.

It is therefore ordered, adjudged and decreed that the judgment rendered by said justice of the peace, fifth ward, parish of St. Martin, be annulled and set aside, defendant to pay costs.


author: Waticins, J.

text:
    No. 11,346.
    Louis Suberville, Husband, vs. Lorenza Adams, His Wife.
    1. In ease the wife, sued for a divorce, sets up, by way of reconversion, a counter demand for a separation, it is competent for the plaintiff to rebut the defendant’s evidenceby the introduction of evidence pertinent thereto, notwithstanding it be inapplicable to his principal demand, which has been*disallowed.
    2. No formal answer to or denial of the averments of the defendant’s reeonventional demand's oentemplated in our law, and the plaintiff may introduce any evidence in rebuttal or disavowal of same, in the same manner, and to the same extent that he might under a formal denial thereof.
    3 The conditions on which the wife can be awarded alimony are: 1st, that she shall have instituted suit for a judicial separation, or one a mensa et thoro. 2d, that she shall have left or declared her intention to leave her husband’s domiieil; and 3d, that the judge shall have assigned her ahorne wherein she shall reside during the pendency of the suit.
    3. The husband can not be compelled to pay alimony unless the wife proves that she has constantly resided in the home assigned her by the judge.
    APPEAL from the Oivil District Court, Parish of Orleans. Monroe, J.

      Jos. N. Wolf son and A. L. Tissot, for Plaintiff and Appellant.

      W. 8. Benedict, H. C. Cage and Iíobt. G. Dugué for Defendant and Appellee.
   The opinion of the court was delivered by

Waticins, J.

This suit was instituted by the husband against his wife for a divorce a vinculo matrimonii, grounded on a charge oj adultery.

To the petition the defendant tendered the exceptions of no cause of action and vagueness; the former being overruled, and the latter sustained, the plaintiff amended his petition by first reiterating the averments of his original petition, and then alleging that the defendant had committed adultery several different times with a certain person with whom she was upon most intimate terms; and that she had visited houses of assignation for that purpose at several different dates that are mentioned, and places particularly specified where said acts of adultery were committed. He then adds the general averment that the defendant did, at the assignation houses indicated, “ then and there, and at other dates to petitioner unknown, commit acts of adultery with a person or persons unknown.”

To this supplemental petition the defendant filed the further exception of vagueness, coupled with a general denial, and subsequently she filed a supplemental answer disavowing all the charges contained in the plaintiff’s original and supplemental petitions; and assuming the character of plaintiff in reconvention she claimed a separation from bed and board from the plaintiff.

The grounds on which she claimed a separation are substantially as follows, to-wit:

That the plaintiff, her husband, had been guilty of cruel treatment and outrages towards her of such a nature as to render their living together insupportable; and this charge is further supplemented by a specification to the effect that in April and May, 1892, he deserted and abandoned the matrimonial domicil, leaving her destitute; and afterwards resorted to a simulated and fictitious sale of the family homestead, in order to dispossess her of the premises; and, further, that he has since failed to contribute to her support. She also avers that the plaintiff has publicly defamed her by charging her with adultery in the instant suit.

Coupled with her demand for a judicial separation a mensa et thoro is a demand for alimony at the rate of $60 per month during the pendency of the suit.

The trial resulted in a judgment against the plaintiff on the main demand, and in favor of the defendant on her reconventional demand, awarding her alimony at the rate of $60 per month from the inception to the finality of the suit.

Both from the judgment decreeing the defendant a separation and that awarding her alimony, the plaintiff appeals.

During the course of the trial various witnesses were introduced and interrogated on the part of the plaintiff, for the double purpose, first, of proving the charges of adultery alleged against the defendant, as grounds for a divorce, and, second, of defeating the defendant’s reconventional demand for a separation. But this testimony was objected to, and the objections were sustained and the testimony ruled out on the ground that same was inadmissible under the pleadings — neither of plaintiff’s petitions containing any specification of adultery committed at the matrimonial domicile rendering this fact susceptible of proof.

Plaintiff specially offered, in rebuttal of defendant’s evidence, proof to the effect that the defendant was taken in the act of adultery in the common domicil; and further, to show that, this was th¿ cause of her abandoning the same; but the court sustained the defendant’s objection thereto, on the ground that, in his opinion, the proof of anyt one act of adultery, for any and all purposes of the case, must be restricted to the allegations of the petition and supplemental petition.

Pretermitting an'expression of opinion as to the correctness of the judge’s ruling with regard to the admissibility vel non of this testimony, quoad the plaintiff’s demand, we think it a self-evident proposition that it was admissible for the purpose of rebutting the defendant’s evidence in support of her reconventional demand, and that ifc was error on the part of the judge in exeludir g it.

Answers to reconventional demands are not permissible in law, , and consequently there could not be any pleading or demurrer on the part of plaintiff to the defendant’s demand — such as is clearly contemplated by the judge’s ruling — to render same admissible. And inasmuch as no answer to a reconventional demand is contemplated in law, it must be assumed that the plaintiff in the suit is considered to have denied and resisted such demand

On this hypothesis it is clear that the plaintiff was entitled to offer in rebuttal such evidence as would tend to defeat the defendant’s reconventional demand without first making formal answer and denial of the allegations thereof.

Considering the particular averment of her- demand, to the effect that the plaintiff had openly and publicly defamed her by the institution of this suit, founded upon charges of adultery, it would seem to be reasonable that the plaintiff should be afforded an opportunity of justifying against this charge of defamation by making proof, if he can, that she had been guilty of adulteries, in the common domicil, though this is not one of the particular charges on which he claims a divorce. And it seems reasonable that he should be allowed to make the proof that was objected to for the purpose of establishing her abandonment of the matrimonial domicil, thus rebutting her charge against plaintiff of abandonment, on account of which she alleges herself entitled to claim a separation from bed and board.

In such ease as this — a double action for divorce and per contra of separation from bed and board — we consider it better practice to admit than to reject evidence that may shed light on the controversy. For this purpose, it is our opinion that the cause should be remanded to the court a qua with directions to admit the rejected testimony, in so far as same may have a bearing on the defendant’s reconventional demand, and in keeping with the views herein expressed.

With respect to the allowance of alimony vel non the following provisions of the code are pertinent and controlling, to-wit:

“If the wife, who sues for a separation, has left or declared her intention to leave the dwelling of her husband, the judge shall assign the home wherein she shall be obliged to dwell until the determination of the suit.

“ The wife shall be subject to prove her said residence as often as she may be required to do so, and in ease she fails so to do, every proceeding on the separation shall be suspended.” R. C. C. 147.

“ If the wife has not sufficient income for her maintenance during the suit for separation, the judge shall allow her a sum for her support, proportioned to the means of the husband. The huáband can not be compelled to pay this allowance unless the wife proves that she has constantly resided in the home appointed by the judge.” R. C. 0. 148.

Alimony is an incident of the wife’s suit for separation; and it is evident that same can not be allowed, except upon the terms of the code, to-wit: 1. That the wife shall have instituted suit for separation against her husband. 2. .That she has either left or declared her intention to leave the dwelling of the husband. 3. That the judge shall have assigned her a home wherein she shall be obliged to dwell during the pendency of her suit.

Oonceding then, for the purpose of the argument, that the wife’s reconventional demand for a separation is such a suit as the law contemplates, the defendant is still confronted wRb the difficulty that the judge did not assign her a domicil for her occupancy during the pendency of same; and the law plainly and most emphatically declares that “the husband can not be compelled to pay this allowance unless the wife proves that she has constantly resided in tha house appointed by the judge.” Id. 148.

An examination of the case of D’Auvilliers vs. Her Husband, 32 An. 605, does not bear out the statement of defendant’s counsel, that no domicil need be assigned to the wife when she is defendant in a suit for separation or divorce; and it could not have been so decided, for the reason that the wife was plaintiff claiming a divorce.

That no domicil had been assigned to the wife, under R. O. C. 147, was matter of exception by the defendant husband, but it did not prevail, because the court was of opinion that “ this article has no application to a case like the instant one, when “ the spouses were residing in the home of the wife’s parents in a foreign country, and the husband had abandoned her and eloped with a concubine.” (Our italics).

' In that ease there was no matrimonial domicil from which the complaining wife had elected to depart. And it is upon such an election alone, by the terms of the Code, that the judge is authorized to make the assignment. Id. 147.

Defendant’s counsel is under a misapprehension of fact in making the statement that the court awarded alimony in Lauber vs. Mast, 15 An. 593, although it does not appear that a domicil had been assigned the wife, as it appears that the court predicated its opinion on the authority of Rowley vs. Rowley, 19 La. 557, in which an assignment of a domicil had been made on the wife’s application as the plaintiff.

The State vs. Judge, 22 An. 264, only decides that the respondent had jurisdiction to entertain and award alimony subsequent to judgment and during the pendency of a suspensive appeal, for the reason that the plaintiff had made application therefor in her original petition, and it had been inadvertently overlooked at the time of decision.

These are all the decisions to which counsel have cited us as favoring the allowance of alimony, in the absence of an order of the judge assigning the wife a domicil pendente lite, and we are confident they do not support that contention.

In answer to the contention that the husband owes to his wife support and assistance, and “is bound to furnish her with whatever is required for the convenience of life,” it is sufficient to say that those are among the obligations that the law imposes under the' title of “Husband and Wife.” R. C. C. 119, 120.

But they are not actionable during the existence of the marriage, and can only be enforced after the marriage has been dissolved. They are treated of under the title of “ Separation of Property” and can only be recovered after the wife has obtained a divorce; for the code says:

“If the wife who has obtained the divorce has not sufficient means for her maintenance, the court may allow her, in its discretion, out of the property of her husband, alimony which shall not exceed one-third of his income.” R. O..C. 160.

It is evident that this species of alimony — for the maintenance of a divorced wife — is an incident of the settlement of the matrimonial community, and is only recoverable after a decree of separation has been pronounced.

Prior to the passage of Act No. 307 of 1855, since incorporated in the Revised Code of 1870 as Art. 160, no allowance of such alimony could be awarded after a decree of divorce had been rendered.

But the alimony we have under consideration is, by the terms of the law, for the wife’s maintenance “ during the suit for separation.”

It was of this kind of alimony that the court treated in Holbrook vs. Holbrook, 32 An. 13, and of which they said:

“The demand for alimony by the wife against her husband is an incident of the suit for separation, or divorce — is accessory to it, and inseparable from it. An order or judgment for alimony is made pending such suit. * * * * *

“ An allowance for alimony is always made pendente lite and is not conditioned on the success of the principal demand. LeBeau vs. Trudeau, 1 N. S. 93; Rowley vs. Rowley, 19 La. 557.”

That decision is in keeping with Heyob vs. Her Husband, 18 An. 41, and Moore vs. Moore, 18 An. 613, and they are bi ttomed on O. P. 105, which declares that “ a married woman can not sue her husband so long as the marriage continues,” otherwise than in the exceptional cases mentioned therein.

Our conclusion is that the defendant’s claim is of the latter class, and does not include her right to demand assistance and support for which her right of action can only arise subsequent to the dissolution of the marriage. And restricting the issue to alimony vel non, pendente lite, we are of opinion that the plaintiff can not be compelled to pay this allowance if the record discloses that no domicil has been assigned the wife pendente lite, as the evident object of the law is to provide her the means of maintaining a separate domicil “during the suit for separation,” the selection of which the suit renders necessary.

Inasmuch as the defendant confessedly left the domicil of her husband without obtaining from the judge an order assigning her a domicil pending her suit, it was manifestly impossible for her to make the proof required of her, as a condition precedent to her recovery of alimony against tbe plaintiff.

It is of no consequence that the plaintiff did not urge formal exception or objection on this score in limine; the phraseology of the statute clearly imposes the burden of proof on the defendant to establish this essential ingredient of her demand, and the plaintiff had a perfect right to rely upon her failure to discharge it, as a substantial defence, to the effect that he could not be compelled to pay this allowance otherwise.

On the state of the controversy thus formulated, we think the defendant’s reconventional demand for alimony should be disallowed and rejected.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; and it is further ordered, adjudged and decreed'that the judgment rejectingthe plaintiff’s demand for divorce be and the same is affirmed; that the defendant’s reconventional demand for alimony be rejected and disallowed; and that the cause be remanded to, the court a qua for the purpose of allowing the plaintiff to introduce the rejected testimony of witnesses offered for the purpose of rebutting the defendant’s reconventional demand for separation, in keeping with the views herein expressed, and for further proceedings according to law.

It is further ordered, adjudged and decreed that the defendant and appellee be taxed with the costs of appeal, and that all other costs await the final judgment in the cause.


text:
    No. 11,305.
    Succession of William Massey.
    When a testator directs in his will that his immovable property be sold by his executor, an order of sale rendered thereon for the sale of the property is valid.
    If the executor dies pending the proceedings for the sale, his death does not have the effect of annulling the order or arresting the sale.
    It is the law that an executor’s authority is confined to the execution of the will, and that he can only sell property, movables first and thereafter immovables, in default of funds to pay debts and legacies. But the code, Art, 1669, makes an exception when the exeeutor is directed to sell immovable property by the will.
    The rights of the widow in community and the heirs of age are fixed at the testator’s death, and these rights are personal to them. If they make no objection to the sale of the property directed by the will, the adjudicatee has no cause of complaint. They waive their personal rights by making no opposition to the execution of the will, and the order of sale by the court is a completo protec - tion of the adjudicatee’s title.
    The adjudication by the auctioneer of the property to the purchaser is a complete title. No other is necessary and essential to vest title in the adjudicatee. The auctioneer who made the sale can make the deed and receive the price if no opposition is made by the executor, or in his absence.
    The fact that there is no one to receive the price can not annul the adjudication. The purchaser can retain the price until some one is authorized to demand it or he can relieve himself of responsibility by depositing same in court.
    APPEAL from the Civil District Court, Parish of Orleans. J.

      Guy M. Hornor for the Appellees:
    When a testator directs his exeeutor in his will to sell all his property, an order of sale obtained by the executor in order to carry out the wishes of the testator is valid. C. C. 1669.
    “ When the highest price offered has been cried long enough to make it probable that no higher will be offered, he who has made the offer is publicly declared to be the purchaser, and the thing sold is adjudicated to him.” 0. C. 2607.
    “ This adjudication is the completion of the sale; the purchaser becomes owner of the article adjudged, and the contract is from that time subjected to the same rules which govern the ordinary contract of sale.” C. C.2608; Lanevs. Cameron, 86 An. 773.

      “When an auctioneer, who has been appointed to make a judicial sale, has made the adjudication and executed his proves verbal of sale, and has died before passing the act of sale, the court may appoint a new auctioneer to take hisr place.” Covas ys. Berthoulin, 45 An. 160.
    Therefore an auctioneer directed to make a judicial sale has the power to sign the act of sate in accordance with the adjudication made by him.
    “ The adjudication made and recorded by the sheriff, auctioneer or representative of the succession, is a complete title to the purchaser, andneed not be followed by an act passed before a notary.” O. C. 2623; Berthoud’s Heirs ys. Unruh, 9 La. 180; Nesom vs. Weiss et al., 34 An. 1009, and authorities there cited.

      Browne & Choate contra:

    1, Any clause in a will, extending an executor’s powers beyond those conferred by law, is considered not written. C. 0. 1652, 53, 59, 61; Percy vs. Provan, 15 La. R., page 69
    2. The functions of an executor do not extend beyond the execution of the will, embracing the payment of legacies, if any are left by the will, and the payment of the debts of the testator, and those of his estate. Por these purposes he can procure an order of sale and have sufficient property sold to satisfy the legacies and debts. He has no power to obtain an order of saie for the purpose of making a partition of the estate between the heirs. Succession of Dumestre,4 So. Rep , page 329. And it follows that a probate court has no power to grant an order of sale upon the application of an executor to partition an estate between the heirs.
   The opinion of the court was delivered by

McEnery, J.

Wm. Massey died in the city of Philadelphia in 1891, Joseph P. Hornor, of the city of New Orleans, was appointed by the last will and testament of the deceased, executor in Louisiana. The testator owned considerable immovable property in the city of New Orleans.

In the will he directed the Louisiana executor “to sell all the property of the deceased within the State of Louisiana under the orders of the Court of Probate and advice of my Pennsylvania executors, and after payment of all my debts, if any, to remit the proceeds to the executors of my estate in Pennsylvania, my domicil.”

Joseph P. Hornor, the Louisiana executor, presented to the proper court having jurisdiction, a petition in which he alleged that the deceased by last will dated 26th April, 1881, directed him to sell the property of the deceased in this State under the orders of court, and the advice of the Pennsylvania executors, and to remit the proceeds to the executors in Pennsylvania, and that he was advised to sell the real estate at public auction. The order was granted as prayed for, and an order issued to W. 0. H. Robinson, an auctioneer, directing him to make the sale, after legal delays and advertisement, and upon the terms and conditions as prayed for by the executor. The "sale was advertised to take place on 1st February, 1893. Before the day of sale arrived the Louisiana executor, Hornor, died. The auctioneer proceeded with the advertisement and sale, and on the day of sale adjudicated a certain piece of real estate, situated in the city of New Orleans, in the square bounded by Magazine, Lafayette, Common and Girod streets, to the commercial firm of W. H. Mathews & Bro., for the price of $21,000. The auctioneer made a tender of title to said firm of an act of sale signed by him, and made a demand on them for the price of the adjudication. They refused to comply with their bid. A rule was then taken by the auctioneer and the heirs of deceased on Mathews & Bro., the adjudicatees, to show cause why they should not accept the title tendered and pay the purchase price.

The defendant in rule answered by attacking the validity of the proceedings provoked by the executor upon the following grounds:

1. Because the said property was sold without authority in law, or in fact, and the proceedings looking to the sale of said property are wholly unwarranted in law, and they are null and void on their face.

2. Because the District Court was without authority or power to issue the order of sale herein for the sale of said property.

3. Because there is no one at present qualified to receive the purchase price herein and grant a valid discharge therefor, and make to these respondents a formal and valid title to said property.

4. Because the said proceedings are in effect partition proceedings and the proper parties, the widow and heirs, have not been brought into court, and they are not bound thereby.

5. Because the said proceedings are otherwise defective, illegal and not binding on the heirs of the deceased.

The rule was made alsolute, and W. H. Mathews & Bro. were ordered to accept title and pay the price of the adjudication. They appealed from the judgment.

The first and second grounds are based on the well established principle that the executor was without power to enlarge the duties imposed upon him by the laws of this State, and that he could only sell enough property to pay debts and legacies and that the record shows that the estate owed no debts and there were no legacies to be paid. And he relies upon Articles 1659, 1660, 1668, C. C., and Percy vs. Provan, 15 La. 69, and Succession of Dumestre, 40 An. 571.

Art. 1660 says: “ But if the executor testamentary be merely appointed testamentary executor without any other power his functions are confined to see to the execution of the legacies contained in the will, and to cause the inventory and other conservatory acts of the property of the succession to be made.”

In default of funds to discharge debts and legacies of sums of money he can sell, on the order of court, the movables, and if they are insufficient the immovables to a sufficient amount to satisfy said debts and legacies. Art. 1668.

Art. 1669 says: “ Except in the eases provided for in the preceding article (1668) the executor can not caase the immovables to be sold unless he is authorized by the will to do so.”

The executor is bound to see that the will is faithfully executed. C. 0., Art. 1672.

Article 1669 authorizes the immovables to be sold if so directed by the will.

The testator in the will expressly directed that the property in Louisiana should be sold and the proceeds remitted to the executors in Pennsylvania. The sale of the immovables in Louisiana was to be made on the advice of the executors in Pennsylvania. This disposition of the will evidently intended that the executors in Pennsylvania should be the judges of the proper time for the sale. They directed it, and the condition became absolute, and it then became the duty of the Louisiana executor to apply to the proper court for the requisite order to sell.

The right of the widow in community on the property, her ownership of one-half and usufruct on the other, could not be controlled by the dispositions in the will. And the same may be said of the rights of the heirs on the property, which were fixed at the testator’s death. Succession of Smith, 9 An. 107.

The widow and the heirs assert no rights on the property — we are not informed by the record that they have done so.

At any rate they must assert them before the final execution of the testament. In the instant case in the rule they demand the execution of the will.

The matter is personal to them, and if they waive their rights by not opposing the execution of the will it does not concern the adjudicatee of the property. There are no minor heirs’ rights at issue.

The testator ordered the sale of his property, the proceeds to be remitted to the executors of his domicil. The will is executed, the property sold and proceeds remitted to the executors at the testator’s domicil. Now in what manner, after the sale of the property, can the heirs or widow attack the sale made of the property by a court of competent -jurisdiction? They have acquiesced in it by making no opposition to the execution of the will. The fact that the code authorizes the testamentary executor to sell immovable property, if directed by the will to do so, is a protection to the adjudicatee in the absence of any proceedings by the heirs or widow in community to prevent the sale.

The authority of the executor to sell was derived from the will. The will was probated and' ordered executed. The order of the court ordering the sale of the property is a protection to the adjudicatee.

There is nothing in the record behind the order to put the adjudicatee upon inquiry. In the absence of any opposition to the final execution of the will, the order to sell stands alone a complete and perfect shield for the purchaser under the order.

On the third ground, alleged by defendants in rule, that there is no one at present qualified to receive the purchase price and grant a valid discharge therefor and make to defendants a valid title to said property, it is sufficient to say that the death of the executor before the sale could not have the effect of revoking the order of court. The property was directly under the administration of the court, under the order, and it 'could compel the final execution of the order. The court had appointed the auctioneer to make the sale and the announcement or advertisement of the same had been made to take place on a certain day. There was no reason why the death of the executor should arrest the execution of the order. Having provoked the order as required by the will, his active participation was no longer necessary for its final execution.

The adjudication of the property to the defendants was in itself a perfect title. There was no necessity for any other. C. C. 2607, 2608, 2623; Lane vs. Cameron, 36 An. 773; Dabadie vs. Poydras, 3 An. 153; Heirs of Nesom vs. Weis, 34 An. 1009; Washburn vs. Green, 13 An. 332; Desobry vs. Carmena, 9 An. 180; Babin vs. Winchester, 7 La. 468; Faulk vs. Pinnell, 6 R. 26; Lafiton vs. Doiron, 12 An. 164; Code of Practice, 690; Interdiction of Onorato, 46 An. ante., p. 73, recently decided.

There being no one to whom he could pay the price could not defeat the sale. The purchaser could retain it until demanded by proper party, or he could have relieved himself of responsibility by depositing same in court.

The auctioneer Robinson had the undoubted right to make a deed to the property and to receive the price, as he had been authorized by the court to make the sale.

In Covas vs. Bertoulin, 45 An., p. 160, we decided that where the auctioneer who made the sale died, the court could appoint another auctioneer to make the deed. It is self-evident, then, that the auctioneer who is living has the right to sign the act of sale.

On the fourth ground, that the proceedings were, in effect, partition proceedings, and the widow and heirs were not parties, and the act therefore null and void, it is evident that the sale was not made to effect a partition between co-proprietors, but to reduce to cash the testator’s property in Louisiana under the provisions of the will.

The sale may be a preliminary step to a final partition in Pennsylvania among the heirs of the deceased. This may have been the reason for the disposition in the will for the sale of the immovable property in Louisiana. But these are subsequent matters that do not concern the defendants. Dees vs. Tildón, 2 An. 412; Kohn vs. Marsh, 3 Rob. 48.

Judgment affirmed.

Mr. Justice Parlange takes no part in the decision of this case.