text:
    No. 5659.
    Succession of Mrs. S. B. Fuqua.
    The motion to dismiss this appeal on the ground that the appeal bond was not executed in favor of the clerk can not prevail. The bond was executed in favor of John S. Lanier, whom the record shows to be clerk.
    The peremptory exception to the jurisdiction of a special judge to issue an order granting letters of executorship mtione materice was properly overruled. Under the facts of this case the parish judge proceeded lawfully in selecting a lawyer having the proper qualifications to preside over the trial iu his place.
    The instrument admitted to probate must be received as a will. It is in the olographic form, entirely written, dated, and signed by the testatrix. It is not essential that the date to an olographic will should precede the signature; it may be placed below.
    There is no fidei cowmissum in the will. The testatrix does not attempt to put any property in the name of any person except her children. All she does is to direct how that property shall be administered until her children shall marry.
    The intention of the testatrix expressed in her will is that her husband should have the entire control of her children,* that they should make their homes with him, and that he should control their property until they married. Her wishes could not be carried out unless he was their tutor; hence it was, in intendment of law, his appointment as tutor. That she had the right to appoint him can not be doubted..
    Because a cotutor is liable to account for property belonging to minors which may have come into his hands, it does not follow that he can not be appointed their tutor by testament.
    The declaration of three of the'five members of a family meeting called in the interest of the minors, that the appointed tutor is not a fit person to have charge of the minors, can not be taken into consideration. In the first place, there was nothing to authorize the family meeting, there being no vacancy in the office of tutor to be filled. In the second place, the reasons they give for their opposition are entirely outside of the law. This court can not say. in advance that the mother’s choice of the person who, in her opinion, was "best fitted to have charge, of the minors was ill-advised.
    APPEAL from tlie Parish Court, parish of East Feliciana. F. F. Adams, special judge, in the place of the presiding judge, recused.

      Kernan de-Lyons, for tutor and executor, appellee. Li. Li. Forman, K. A. Oross, for under tutor, appellant.
   Morgan, J.

A motion is made to dismiss this appeal on the ground that the appeal bond was not executed in favor of tbe clerk. The bond was executed in favor of John S. Lanier, whom the record shows to be the clerk. This is sufficient. (See the case of Riley v. Howell, lately decided.) The motion to dismiss is overruled.

On the Merits.

The contest grows out of the following document:

Feeling this evening tlie uncertainty of life and shortness of time, I give vent to my feelings in writing. Should God in his wisdom see best to remove me hence, to that home where no traveler returns, in my approaching confinement, ’tis my wish that my dear husband, T. J. Fuqua, have the entire control of my children; they making their homes with him, and controlling their and my business until the marriage of each, at which time he must give them, Addieand Pinkie, five thousand dollars and their -trousseaux; and controlling the eleven thousand dollars belonging to me, until Pinkie becomes of age, at which time it must be equally divided between my children. Should Addie be married, her portion of the interest on what belongs to me, eleven thousaud dollars, be paid her yearly until Pinkie becomes of age. Should Mr. Fuqua marry, I want all my silver, beds, and bedding be given to Addie and Pinkie, and they to give a portion of it to my Fuqua child when grown ; and if he marries, ’tis my wish that his third wife never be benefited by anything that belonged to me, in any way, and in case of my Fuqua child’s death, what it would inherit from me be given to Addie and Pinkie whenever my husband thought proper.
“Being in health and in my right mind, I hereby sign my iull name.
“ MRS. SARAH B. FUQUA.
“ September 12, 1873.”

Mrs. Fuqua died some time after the date of the above writing. On the tenth March, 1874, it was admitted to probate as her last will, and T. J. Fuqua, her surviving husband, was appointed executor thereof. On the twelfth March, J. W. Clinton, the under- tutor of Mrs. Fuqua’s children, moved to rescind the order appointing Fuqua executor. The appointment was rescinded. A motion was made for a rehearing. Pending this motion, the judge died. His successor recused himself on the ground of having been of counsel, and a lawyer was selected as special judge, to try the case. This was done by consent of counsel. After the rescinding order had been revoked, and the original order appointing the executor reinstated, a peremptory exception to the jurisdiction of the special judge to issue an order granting letters of executorship ratione materice was taken. The exception seems to be based upon the 2024th section of the Revised Statutes, which provides that “the district judges of the several judicial districts of this State, or the parish judge of any adjoining parish shall, in the absence of the parish judges from their respective parishes, or when the parish judge is interested, or from any cause is recused or can not act, grant all orders of any and every kind in cases of any kind in the parish courts which might have been granted by the parish judge if not absent or recused, which absence or recusation must be made to appear by the affidavit of the party or his attorney who applies for such order.” The exception was properly overruled. It was a regular suit which was pending in court, the contest being the right to be qualified as executor ■ of a will, one party asserting it, another contesting it. The parish judge had been of counsel for one of the contestants ; he was not personally interested in the matter in contestation. The constitution, act 90, provides that “in any case where the judge may be recused, and where he is not personally interested in the matters in contestation, he shall elect a lawyer, having the qualifications required for a judge of his court, to try such cases. And when the judge is personally interested in the suit, he shall call upon the parish or district judge, as the case maybe, to try the case.” It is evident, therefore, under the facts of this case, that the parish judge proceeded properly in selecting a lawyer having tbe proper qualifications to preside at the trial in his place.

We come now to consider whether the instrument above quoted is a will. We are of the opinion that it is. It is in the olographic form, entirely written, dated and signed by the testatrix. Objection is made that the date is not affixed in the proper place. It is not essential that the date to an olographic will should precede the signature; it may be placed below. See Cain de Lisle, under art. 970 C. N., No. 30, where the authorities upon this point are cited. By it she certainly disposes of her estate, and directs how it shall be administered. This is all that the law requires. Nor do we see any fidei eommissum contained therein. She does not attempt to put any property in the name of any person except her children. All she does is to direct how that property shall be administered until her children shall marry.

We are not called upon to pass upon the question as to whether or not the will contains the appointment of an executor. All the proceedings had in the succession seem to have been copied into the transcript before us. But the appellee, Fuqua, made two separate applications to the court. One was to be qualified as executor; the other was to be ■confirmed as tutor; and two separate judgments have been rendered on these applications. The appeal seems to have been taken from the judgment confirming him as tutor. And the question now arises, does the Will appoint him tutor to the testatrix’s minor children ?

“ In the interpretation of acts of last will, the intention of the testator must principally be endeavored to be ascertained, without departing, however, from the terms of the testament.” C. C. 1712.

Now what was the intention of the testatrix with regard to her children ? It was that her husband should have entire control of them; that they should make their homes with him; and that he should control their property until they married. How could her wishes be carried out unless he was their tutor ? It seems to us that the wish she expressed in this regard was, in intendment of law, his appointment as tutor. That she had the right to appoint him tutor can not be doubted.

The last ground of opposition to his appointment is that he is indebted to the minors and is, consequently, excluded from being their tutor. This allegation is not, we think, established. It is possible that he may have received money belonging to the minors while he was cotutor with their mother. This would make him liable to account to them, but all tutors owe an account of their tutorship. We can not say that, because a cotutor is liable to account for property belonging to minors which may have come into his hands, he can not be appointed their tutor by testament.

It has been pressed upon us that three of the five members of the family meeting called in the interest of the minors have advised that the appellee is not a fit person to have charge of them. The principal objection they make to him is that he is, comparatively speaking, a young man, and that there is no female living in the house with them. In the first place, there was nothing to authorize the meeting of the family, there being no vacancy in the office of tutor to be filled. In the second place, the reasons they give for their opposition are entirely outside of the law. We can deprive or exclude a person appointed as-this one was only for some of the causes mentioned in the Code. That he is comparatively speaking a young man, and that he has no other female living in the house with the minors, is not among them.

Under the will he has, we think, the right to be appointed tutor to-the minors. Should his conduct be such as to make it apparent that the trust the mother reposed in him was ill-founded, the law has pointed out the mode by which they may be protected, and no doubt protection will be given them. We can not say, in advance, that their mother’s choice of the person who, in her opinion, was best fitted to have charge of them, was ill-advised.

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 5493.
    George Lysle and Son v. Beals & Laine et al.
    Beals & Laine are sued as makers and Edward Beals as indorser of a promissory note. E. Beals’ son, a member of the firm of Beals & Laine, wrote the name of liis father, who can not write, as indorser of said note. Tlie evidence showing that Edward Beals subsequently ratified the act or adopted the indorsement, this is sufficient to bind him as indorser.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Bice & Whitalcer, for plaintiffs and appellants. JBentinelc Blgcm, for defendant and appellee.
   Wyly, J.

The plaintiffs, who sued Beals & Laine as makers and Edward Beals as indorser of a promissory note, appeal from the judgment dismissing as of nonsuit their demand against said indorser.

Edward Beals in his answer specially denies that he indorsed the note, averring that he can not write his name.

His son, a member of the firm of Beals & Laine, wrote the name, hut the evidence shows that Edward Beals subsequently ratified the act or adopted the indorsement, and this was sufficient to bind him as an indorser.

It is therefore ordered that the judgment appealed from be annulled, and it is decreed that plaintiffs recover of defendant, Edward Beals, $1257 36, with legal interest on $2441 97 from the twenty-first of February, 1874, till the first of April, 1874, and thereafter like interest on $1257 36 till paid, $5 56 cost of protest, and costs of both courts.

Rehearing refused.


text:
    No. 5689.
    Harriet G. Adams v. Edward W. Adams—John Chaffe, Bro. & Son—Third Opponents.
    There are several reasons why the privileges of the overseer and laborers set up by the third opponents as subrogees, have no preference over the prior mortgage claim of the plaintiff, the most important being that said privileges were not recorded in the parish where the property is situated on the day the contracts out of which they arose were entered into.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Dewing, J.

      Johnson & Denis and A. <&. J3. Talbot, for plaintiff and appellee. Darrow & Pope and George Wailes, for third opponents and appellants.
   Wyly, J.

Plaintiff, holding a special mortgage and vendor’s privilege on the plantation of the defendant, to secure her claim of $36,589 35, foreclosed the same and caused the mortgaged premises and all the accessories and appurtenances to be advertised for sale on the seventh of March, 1874.

John Chaffe, Bro. & Son, claiming to be subrogated to the claims of the overseer and the laborers on said plantation, during the year 1873, amounting in the aggregate to $5117 83, filed a third opposition a few days before the sale, praying to be decreed to have a privilege for the amount of their claim, on the seed cane, hay, corn, and fodder raised on said plantation during the year 1873, together with the mules, farming implements, and other movables attached to said plantation, and praying that said property be appraised separately, and that they be paid out of the proceeds thereof, in preference to plaintiff. The property was appraised separately and sold with the plantation to plaintiff for $26,350. Subsequently to wit: on the twenty-first July, 1874, the opponents filed a supplemental petition setting up a privilege as furnishers of- seed cane for the crop of 1873, praying judgment for the amount of this claim, $3000, with privilege on the seed cane, hay, corn, and fodder on the plantation at the time of the seizure, superior to the mortgage of plaintiff. The court gave judgment for plaintiff, and the third opponents have appealed.

In regard to the claim for furnishing seed cane for the year 1873, the record shows no privilege on account thereof. True it is, the defendant made a transfer on the seventeenth February, 1873, of the seed cane of the crop of 1872, to the third opponents, in settlement of a balance due by him to them for advances for the year 1872, aDd on the same day the third opponents retransferred the same seed cane to the vendor for three thousand dollars, taking his note therefor. This was a mere paper transfer. No delivery occurred or could occur, because the evidence shows that the cane had already been planted, and was an immovable. Besides, the contract was not registered in the parish where tlie property was on the day it was made; consequently, no right was acquired superior to plaintiff’s existing mortgage on the property, which was immovable by destination. There are several reasons why the privileges of the overseer and laborers, set up by third opponents as subrogees have no preference over the prior mortgage claim of the plaintiff, the most important being evidence of said privileges was not recorded in the parish where the property is situated on the day the contracts out of which they arose were entered into. Revised Code 3274; see also Bank of America v. Septime Fortier, Edward J. Gay & Co., third opponents, lately decided, and authorities there cited.

Judgment affirmed.

Rehearing refused.


author: Tamaeerro, J.

text:
    No. 5585.
    Robert J. Moore v. A. J. Beelman—Same v. Mrs. Laura J. Beelman—Consolidated.
    The obligations sued upon were entered into subsequent to the homestead law, and are therefore subject to it. These obligations novated a debt previously existing and secured by mortgage. Whether this original mortgage was valid or not for want of reinscription is immaterial. It was abandoned and became inoperative by the consent of the original mortgagee, who received in lieu thereof tlie new obligations, which are now sought to be enforced.
    APPEAL from the Fourth Judicial District Court, parish of St. Charles. Flagg, J.

      J. D. Augustin, F. St. Martin, M. Maries, for plaintiff and appellant. Breaux, Fenner <& Hall, for defendants and appellees.
   Tamaeerro, J.

In each of these cases the plaintiff is aiming to enforce a mortgage against property of the defendants whose notes, secured by these mortgages, he is the holder of, and is authorized to exercise the rights of mortgage appertaining to the same. These mortgages were granted in favor of one Gfassin, the original holder, in renewal, as it is declared, of a debt originally owing by tbe ancestor of the defendants to Gassin, and which was secured by mortgage on-the same property.

The facts relating to the execution of the notes sued upon, and the-mortgages securing their payment, seem to be as follows: John M«Beelman, the father of these two defendants, and Frederick M. Beel-man, being indebted to Gassin in the sum of $2350, gave his note for that amount on the twenty-eighth of March, 1861, and to secure its payment mortgaged a quarter section of land, reserving fifteen acres of it, on which were certain buildings. F.. M. Beelman, for a like sum owing by him to Gassin, gave his note and secured its payment by mortgage on an adjoining quarter section of land owned by him. This occurred in April, 1861. In March, 1866, Frederick M. Beelman sold to his brother, Alexander J. Beelman, one hundred acres of this quarter section, reserving to himself the remainder, about fifty-nine acres and eighty-five hundredths. In this act of sale Alexander Beelman obligated himself to pay $1468 75 of the debt owing by Frederick M. Beelman to Gassin, with the proportional amount of interest that bad accrued. As part of the consideration Alexander Beelman transferred his share and interest in the estate of his father, then deceased, to Frederick Beelman. In May, 1867, the widow of John M. Beelman, and mother of Frederick, Alexander, and Laura Beelman, wife of Tinney, all heirs of John M. Beelman, joined with the heirs in a notarial act by which, in consideration of the undertaking of the heirs to release her from all obligation to pay any part of the debt owing by the estate of J. M. Beelman, and for the further consideration of becoming sole owner of the fifteen acres of land reserved in the mortgage of her husband to Gassin, she relinquished in favor of the heirs all her community rights, as well as all others, in the tract of land aforesaid. By this act the heirs accepted the succession of their father purely and simply, and made a partition of the land, specifying the part falling to each. In pursuance of the contract entered into with their mother, the three heirs, two of them the same day, and the other in June following, executed each a note for his respective share of the original debt to Gassin, and each executed a mortgage on his separate portion of the land partitioned, as we have before seen. When suit was brought upon these notes against the several makers they seem to have made no defense against the obligations they import, but each claimed the benefit of the homestead law upon his portion of the land, alleging necessitous circumstances, and their right to claim the exemption of their lands from sale under the mortgages. Judgment was rendered in favor of the right of homestead claimed by two of the defendants, Mrs. Tinney and Alexander Beelman; the mortgages executed by them were declared null and void, and judgments were rendered in favor of the plaintiff for the amount of the notes sued upon.' From this judgment the plaintiff has appealed.

Two bills of exception appear in the record, but we do not consider it important to pass upon them in the consideration of the case.

It is strenuously argued on the part of the plaintiff, that the original mortgage to Gassin bears upon the land; that the obligations entered into by the heirs are only extensions of the original mortgage by their ancestor to Gassin; that as against that mortgage the homestead claim can not have effect. The plaintiff contends that as to Frederick M. Beelman, he can not claim the benefit of the homestead law, because at the time he executed his note and mortgage he was unmarried, and had no one dependant upon him for a support. Judgment as to him was rendered by the lower court in favor of the plaintiff, ignoring his homestead claim, from which he appealed.

The original mortgage to Gassin, executed by John M. Beelman on the twenty-eighth of March, 1861, was not reinscribed within ten years, but the plaintiff holds that the inscription of the mortgages renewing and recognizing it, before the expiration of the ten years, was equivalent to reingcription. He contends, further, that the notes sued on do not represent a debt created subsequently to 1865, the year the homestead law claimed by the defendants was enacted. On the part of the defendants it is urged that there was a novation of the original debt; that if the attempt were made to enforce the original mortgage to Gassin, the answer would be that no such mortgage exists, for the record shows that it has been erased; besides, by the assent of the creditor new mortgages, granted by different parties in 1867, have been substituted for it. The defendants herein, it seems, are not held as heirs ot John M. Beelman, but rather upon conventional contracts of their own; they should then be held upon such contracts alone.

The authorities we are referred to by plaintiff’s counsel, in relation to the homestead right, refer, we think, to the provisions made under the act of 1852, for indigent widows and children. The obligations sued upon were entered into in 1867, subsequent to the passage of the homestead law of 1865. We are of the opinion that there was a novation in this case. Whether the original mortgage was valid against the heirs or not, for want of reinscrption, it is unnecessary to inquire. It was abandoned and became inoperative by the consent of the original mortgagee, who received in lieu thereof the new obligations which are now sought to be enforced.

With this view of the subject we tliiDk the judgment of the lower court correct, the defendants, Alexander Beelman and Mrs. Tinney, having shown that they come within the provisions of the statute granting homesteads. The judgment of the lower court as to these ■defendants is therefore affirmed with costs.

The appeal in the case of the same plaintiff against Frederick M. Beelman is not before us in this record, although incidentally referred to in our statement of the facts of this case.

Rehearing refused.


text:
    No. 5577.
    Lehman, Newgass & Co., A. Dudossat, subrogated v. Louis Ranson—On injunction of Bernard Soulié.
    It appears from the mortgage certificate that the judgment of Dudossat, defendant in injunction, creates a judicial mortgage prior in rank to the judicial mortgage of plaintiff in injunction. TJ10 preference that Soulie acquired from a prior seizure of Hanson’s property can not defeat the existing prior mortgage on the property in question, which seems to he all that remains belonging to the seized debtor. "When sold, the property was adjudicated to Soulie, who refused to pay over the money to the sheriff, whereupon the sheriff was proceeding to resell the property when enjoined by Soulie on the ground that he had the right to retain the money in satisfaction of his judgment. This was wrong; Soulie should have complied with his bid; a concursus was his remedy. The sheriff was right when proceeding to resell, and the injunction was wrongfully taken.
    APPEAL from the Fourth Judicial District Court, parish of St. Charles. Flagg, J.

      James D. Augustin, for Bernard Soulié, plaintiff in injunction and appellant. Breaux, Fenner & Sail and Julien Michel, for Dudossat, defendant in injunction and appellee.
   Wyly, J.

In April, 1867, Bernard Soulié foreclosed, via ordinaria, his mortgage- against Louis Ranson, and after the sale of the mortgaged property, he caused, an alias fieri facias to issue for the balance due him on said judgment. The sheriff seized eighty acres of land in the parish of St. Charles belonging to Louis Ranson; and the same land be subsequently seized under a fieri facias issued by A. Dudossat, the ■owner of the judgment, styled Lehman, Newgass & Co. v. Louis Ranson. Under both these writs the property was offered for sale on the fifth July, 1873, aud it was adjudicated to Bernard Soulié for $1300. He refused, however, to pay over the money to the sheriff, and the latter was proceeding to resell the property, when he was arrested from so doing by a writ of injunction sued out by Bernard Soulié, on the ground that he was entitled to retain the price in satisfaction of his •own judgment, he being the first seizing creditor, and therefore entitled to a preference over the defendant, A. Dudossat, who seized subsequently.

The court dissolved the injunction with fifty dollars damages, and the plaintiff, Bernard Soulié, appeals. The defendant, A. Dudossat, joins in the appeal, praying that the damages be increased to twenty per cent.

It appears from the mortgage certificate that defendant’s judgment styled Lehman, Newgass & Co. v. Ranson is a judicial mortgage prior in rank to the judicial mortgage of plaintiff against Ranson. It is evident that the preference plaintiff Soulié acquired from his prior seizure-can not defeat the existing prior mortgage on the property in question, which seems to be all that remains belonging to the seized debtor.

Under the circumstances, it was the duty of the plaintiff in injunction to have complied with his bid, paying over the price to the sheriff, and then, if he thought he was entitled to the proceeds of the sale, he could in a proper proceeding have had the question settled contradictorily with all parties in interest. A eonewsus was his remedy. When he refused to comply with his bid, the sheriff was right in disregarding it and proceeding to resell the property.

The damages we will increase to one hundred dollars.

It is therefore ordered that the judgment herein be amended so as to-increase the amount of damages to one hundred dollars, and as amended, it is ordered that the judgment be affirmed with costs.

Rehearing refused.


author: Morgan, J.,

text:
    No. 5653.
    A. L. Gusman et als. v. Gustave LeBlanc, Sheriff, et als.
    There is no law which requires the sheriff of a country parish to announce at a sale under a writ of fieri facias the amount of taxes due on the property offered. The doing was mere surplusage on his part, and as it invaded no one's rights, it couíd cause no injury.
    The fact that the bond of the adjudicated was not given within three days after the adjudication is no ground to annul the sale in a suit instituted by the codebtors of the defendant.
    That the judgment debtors, plaintiffs in this suit, have never had an offer of delivery of the surplus money or twelve months bond for over $530, coming to them under the adjudication made to them, is no ground to set aside the sale. It might be a ground for them to pursue the sheriff to a fulfillment of his duty.
    That the act of sale allowed to a judgment creditor more than was coming to him, at the expense of the judgment debtors, is no reason for annulling the sale. The excess is something over ten dollars. This trifling error could have been corrected in the court below.
    That the act of sale and return of the sheriff say nothing about interest is no reason why the sale should be annulled.
    That the sheriff did not, within ten days at furthest from the- adjudication, deliver or direct to the clerk of the court the original of the act of sale, the delivery having been made fourteen days after the adjudication, is no grouud to annul the sale.
    APPEAL from the Fifth Judicial District Court, for the parish of East Baton Rouge.

      Dewing, J. J$. W. liobertson, S. P. Greves, and A. S. Serrón, for plaintiffs and appellants. Fcwrot é Demon, J. ó¿ G. W. Burgess, for defendants and appellees.
   Morgan, J.,

The first ground upon which the plaintiffs rest their demand for the rescission of the sale made by the sheriff is that at both offerings lie announced that the taxes due on the property, and which were to be paid in advance of the passing of the act of sale, amounted to $114 90, when, in truth, they only amounted to $100 68.

Counsel for appellants say they know of no law which requires the sheriff of a country parish to announce at a sale under a writ of fieri facias the amount of taxes due on the property offered. Neither do we. The doing so was mere surplusage on his part, and as it invaded no one’s rights it could cause no injury.

The second informality urged is that the act of sale was not passed within three days after the adjudication, the sheriff having allowed the purchaser nine days in which to comply with the terms of sale.

At the time of the adjudication the adjudicatee was ill. Her bond was given as soon as she recovered. The sufficiency of the bond is not questioned. The only point raised with regard to it is that it was not given within three days after the adjudication. This is no ground to annul the sale in a suit instituted by the codebtors of the defendant.

The third ground for rescission is that the judgment debtors, who are plaintiffs and appellants in this suit, have never had an offer of delivery of the surplus money or twelve months’ bond for over $530, coming to them under the adjudication made to them. This may be a ground for them to pursue the sheriff to a fulfillment of his duty, but it is no ground to set aside the sale.

The fourth ground for rescission is that the act of sale allots to Reynaud, the judgment creditor, more than was coming to him, at the expense of the judgment debtors. The excess is something over ten dollars. This trifling error could readily have been corrected in the court below, and it is no reason for annulling the sale.

The fifth ground for rescission is that the act of sale and return of' the sheriff say nothing as to interest. If there be any error in this regard it should have been corrected below. It is no reason why the sale should be annulled.

The last ground for rescission is that the sheriff did not, within ten days at furthest from the adjudication, deliver or direct to the clerk of the court the original of the act of sale, the delivery having been made fourteen days after the adjudibation.

It is manifest that this as well as most of the other objections of the plaintiffs relate to mere clerical duties, and that they are none of them sufficient grounds for annulling a sale made by the sheriff when all the formalities required by the law were complied with up to and including the adjudication of the property.

Judgment affirmed.

Rehearing refused.


text:
    No. 5684.
    Keiffer Bros. et als. v. Isaac Starn et als.
    Where there is a total want of description of the situation of the thing mortgaged, the act of mortgage is invalid.
    APPEAL from the Fifth Judicial District Court, parish of East Feliciana. Dewing, J.

      D. J. Wedge and T. A. Moore, for plaintiffs and. appellants. Kernan & Lyons, for defendants and appellees.
   Wyly, J.

The plaintiffs, who were judgment creditors of Philip Quitman, seized upon a lot of .ground and improvements thereon in the town of Clinton, and it was sold for $800 to the defendant, Isaac Starn, the purchaser retaining the price to pay two prior mortgages bearing on the property.

The plaintiffs complain that one of these mortgages, to wit: the one in favor of the defendant, Nathan Starn, for $600, was simulated and fraudulent, and that it is repugnant to article 3306 of the Revised Code, and invalid because being a conventional mortgage, the act establishing it does not state precisely the nature and situation of the immovable mortgaged. They therefore bring suit to have said mortgage declared invalid and to compel the purchaser to pay over this portion of the proceeds of the sale retained by him.

The charge of simulation and fraud is not proved. The controversy is confined to the allegation that the nature and situation of the thing mortgaged are not precisely stated in the act granting the mortgage. That instrument is an act under private signature, and was recorded in the parish of East Feliciana on the seventh of August, 1873. The thing mortgaged is thus described: “All the property herein described, consisting of one house and lot, with other improvements thereon; also the half interest in the store building adjoining, with all right and title and interest of.the said Philip Quitman, party of the first part.” The act mentions the nature of the immovable hypothecated, but it does not precisely state its situation, as required by article 3306 of the Revised Code. Indeed, it makes no mention whatever of the situation of the lot. Neither the State, parish, nor town where it lies is mentioned.

Here is a total want of description of the situation of the thing mortgaged, and we are constrained to hold that the act is invalid.

The cases of Consolidated Association of Planters v. Mason, 24 An. 518, City National Bank v. Barrow 21 An. 396; Ellis v. Sims, 2 An. 253 and Baker v. Bank of Louisiana, 2 An. 371, cited by defendants, all differ from the case at bar in that in those cases there was some description of the property, and sufficient, as the court held, to prevent personé dealing with the mortgagers therein from being misled or prejudiced. But here the situation of the thing is not suggested at all.

It is therefore ordered that the judgment herein, maintaining the validity of the mortgage in question, be annulled; and it is decreed that the mortgage granted by Philip Quitman to Nathan Starn, described in the petition, ■ is null and void, and the defendant, Isaac Starn, is required and commanded to pay over to plaintiffs that part of the purchase price retained by him to pay said mortgage.

It is further ordered that defendants pay costs of both courts.


author: Morcan, J.

text:
    No. 5472.
    Succession of G. S. Dufossat et al. v. B. S. Labranche et al.-Opposition of R. Brown et als., laborers.
    The suggestion to dismiss this appeal is- made under the statute No. 25, acts of 1874, but is not, iu reality, supported by any one of its provisions. An appeal can not be dismissed upon a mere suggestion in argument, after the case has been taken up on its merits, without any reservation of the right to move to dismiss.
    This court does not see how it is possible to recognize a privilege in favor of laborers on mules, agricultural implements, etc., sold in 1873 for work done by them on a plantation in 1872.
    APPEAL from the Fourth Judicial District Court, parish of St. John the Baptist. Flagg, J.

      J. J). Augustin and J. Seine, for opponents and appellees. F. Bermudes and Charles F. Claiborne, for defendants in opposition and appellants.
   Morcan, J.

We take the case as stated by the counsel of the laborers, appellees: The plantation of defendants was sold at sheriff’s sale on the fifth of July, 1873, together with all the buildings and improvements thereon, and also all the mules, work oxen, and utensils serving to work the same. The plaintiffs and'appellants.became the adjudicatees for the sum of $21.000 in cash, having provoked the sale by executory process on certain mortgage notes held by them. This is a contest for the proceeds withheld by the mortgage creditors, between them and' the opponents and appellees, laborers on the plantation in question during the year 1872.” There was judgment in their favor. Defendants appeal. In their brief, counsel for appellees ask us to dismiss the appeal because'it was not made returnable according io lawj and was filed too late.

The judgment was signed on the twenty-seventh May, 1874. On the same day appellants moved for a suspensive appeal returnable to the Supreme Court, on the third Monday of January, 1875, which is the return day fixed by law for appeals from that parish. The record was filed here on the fourteenth of November, 1874.

The suggestion to dismiss the appeal is made under the statute No. 25, acts of 1874, entitled “ An Act relative to the trial of certain suits in which provisional seizures have been issued,” the second section of which provides that all appeals in the cases referred to in the act shall be returnable to the appellate court within three days after rendition and signing of judgments.

In the first place, no provisional seizure issued in the case under consideration. In the second place, motions to dismiss must be filed in writing before joinder in error or answer to the merits, or such preliminary objections will be considered as waived. 8 R. 168; 3 R. 169. We can not dismiss an appeal upon a mere suggestion in argument after the case has been taken up on its merits without any reservation of the right to move to dismiss.

On the merits we do not see how it is possible for us to recognize a privilege in favor of laborers on mules, agricultural implements, etc., sold in 1873 for work done by them on the plantation in 1872.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that the oppositions filed by the several opponents herein be dismissed at their costs.

Rehearing refused.


author: Howell, J.

text:
    No. 5611.
    Mrs. Isabella A. Fluker v. Mrs. Harriet Herbert. Mrs. Barkdull called in warranty.
    'What was novel*, of record can not be supplied by parole. The ruling of a court upon the exclusion of evidence must be of record.
    The plea of res judicata does not rest on the regularity of the proceedings which can be removed on appeal, but upon the force of the judgment pronounced on the demand and cause of action between the parties.
    APPEAL from the Fifth Judicial District Court, parish of East Feliciana. Dewing, 3.

      ■D. O. Hardee, for plaintiff' and appellant. Kerna/n & Lyons, for' defendant and appellee. Kilbourne & MeVea, for warrantor.
   Howell, J.

This is a petitory action to recover a tract of land, which plaintiff alleges she bought at the probate sale of Nancy Stevens, in December, 1862; that she and those under whom she holds have been the lawful owners thereof for over thirty years; that Mrs. Harriet Herbert is now in possession of said land, and claims to be the owner of the same by virtue of a pretended transfer made by Mrs. L. P. Bark-dull on the seventh of March, 1868; that the said Mrs. Barkdull never was the owner thereof, and she prays that she be declared the owner and put in possession of said land.

To this petition the defendant filed the plea of res judicata, inasmuch as the demand herein is the same, founded on the same cause of action and between the same parties, as that which has been adjudged in suit in same court, entitled H. H. Herbert v. the Sheriff et al., Mrs. I. A. Eluker, intervenor.

This plea was overruled, answer was filed, and from a judgment in favor of defendant plaintiff has appealed.

The record in the said suit shows that as to the plaintiff and intervenor therein, the demand, the cause of action, and the parties were the same as in this.; butthe plaintiff herein offered parole x>roof that on the trial of the said cause the counsel for the plaintiff in injunction objected to the introduction of any evidence on the part of the intervenor on the grounds that no service had been made of said intervention, no issue joined by answer, and no evidence offered on the part of the intervenor up to said trial; to which the counsel for the defendant herein objected, on the grounds that the judicial acts of a court of record could be evidenced by the record alone, and could not be supxilied by parole evidence, and that on the trial of a peremptory exception of res judicata no parole evidence is admissible, .except to explain an ambiguity in the judgment or to establish the identity of the object.

These objections were overruled and the testimony admitted to explain any ambiguity as to the extent of the judgment.”

We think the court erred. The first ground is sustained by the case State v. Smith, 12 An. 349. What was never of record can not be supplied by parole. The ruling of a court upon the exclusion of evidence must be of record. There is no ambiguity or obscurity in the judgment. The jury found in favor of the plaintiff in injunction and dismissed the intervention. On this verdict judgment was rendered in the following words : “ It is therefore ordered that the injunction herein sued out be perpetuated;. that Harriet Herbert be recognized as the owner of the tract of land described in plaintiff’s petition, and that the defendants pay costs. And it is further decreed that the intervention of I. Ann Eluker be dismissed at her costs.”

Erom this judgment the intervenor did not appeal. The record of that suit shows that her counsel was present and took part in the taking of testimony on trial, and that his name appears in connection with that of the counsel fpr the defendants in the motion for an appeal by defendants. This judgment was conclusive upon the demand of the intervenor and is final. The plea of res judicata does not rest on the regularity of the proceedings which can be reviewed on appeal, but upon the force of the judgment pronounced upon the demand and cause of action between the parties.

Without the above parole evidence the plea must be held to be good, and the j udge a quo erred in overruling it.

And for this reason it is ordered that the judgment appealed from, which was in favor of defendant, be affirmed with costs.


author: Morgan, J. Morgan, J.

text:
    No. 3683.
    Sam Smith & Co. v. The City of New Orleans and Recorder of Mortgages.
    ■When the city oí RTew Orleans purchases a piece of property and gives its bonds therefor, the bonds must be considered as a payment of the price, and the property thus acquired, unless the contrary be expressly stipulated, is free of all incumbrance, such as vendor’s lien and privilege.
    As the vender’s privilege need not be stipulated in the act of sale, but results from the nature of the debt, so it need not be expressly renounced, but may be implied from the terms of the instrument. This implication must, however, be clear.
    There is a wide difference between the bonds issued in the name of and-payable by an important political corporation and an individual promissory note. Bonds are commercial securities, and have characteristics of currency. They do not depend for their value upon the thing for which they were given.
    Where, as in the contract of sale relied on in this instance, payment was made in bonds, it was as if the price had been paid in current money. The language of the contract and of the act itself, on which it is based, implies such an intention, and indicates that it was meant to give a full discharge of the debt, without the reservation of any lien or privilege to secure the bonds at maturity.
    from the Eighth District Court, parish of Orleans. Dibble, J,

      A. Wallcer, D. D. Simonds, for plaintiffs and appellants. JR. Wcuples, for the city of New Orleans; Hornor & Benedict, for the Recorder of Mortgages, defendants and appellees.
   Morgan, J.

For the reasons assigned by the district judge, the judgment of the district court is affirmed with costs.

Reasons of the Judge a Quo.

On the nineteenth day of January, 1869, the Commercial Bank of New Orleans sold the city of New Orleans all of the property belonging to the waterworks constructed, by said bank. This sale was made in conformity to the award of five arbitrators chosen by the bank and five by the city, in accordance with the provisions of section 42 of the act incorporating said bank, April 1, 1833.

The price was fixed at one million three hundred and ninety-three thousand four hundred dollars, payable in' bonds of the city of New Orleans, running thirty years and bearing five per cent, interest.

This act of sale was made before the official notary of the city, who caused it to be recorded in the office of the register of conveyances, and also in the office of the recorder of mortgages. This last was calculated to preserve a registry of the vendor’s privilege in favor of the Commercial Bank.

In May, 1870, the city of New Orleans came into this court and took proceedings against the recorder of mortgages and the Commercial Bank, to have the registry in the recorder’s office canceled. The city insisted that there had been no stipulation of mortgage in the act, and that the bank, having received the bonds, was not entitled to the vendor’s privilege.

There being no opposition, a judgment -was rendered ordering the cancellation of the registry. This judgment was signed May 27, 1870. June 3, seven days thereafter, Sam Smith & Co., the present plaintiffs, filed a petition of intervention, setting forth the same allegations urged in the petition in this case; the interveuors being too late to have the case reopened, this direct action was brought.

The plaintiffs aver that they are holders and owners of bonds issued for payment of the waterworks as aforesaid, to the amount of seventy-five thousand, which bonds are payable to the Commercial Bank or bearer, and were purchased by petitioners with all rights thereto appertaining.

The plaintiffs further allege that the sale of said waterworks by said Commercial Bank of New Orleans to the city of New Orleans was duly registered by the register of conveyances and recorded by the recorder of mortgages; and that, from the nature of the contract and by effect of law, the vendor’s lien and privilege attached to said property in favor of the Commercial Bank and its vendees and assignees of the bonds.”

This action is therefore-brought against the city of New Orleans and the recorder of mortgages to enforce the reinseription of the act in the office of the recorder of mortgages, to the end that it shall operate as a record of the vendor’s lien and privilege.

The city in its answer insists that the nature and terms of the contract did not preserve to the Commercial Bank the vendor’s lien and privilege.

Article 3249 of the Civil Code provides that the vendor shall have a privilege on immovables sold by him, for the'payment of the price, or so much of it as is unpaid, whether it was sold on or without credit.

The vendor’s privilege need not be expressly stipulated. <cIt is a right which springs from the nature of the debt, and by force of law is embodied in the contract unless it be renounced.” 3 An. 600. Although the vendor may not have stipulated a mortgage in the contract of sale for security of the balance unpaid, still the vendor’s privilege remains. The vendor will still have this lien though he expressly renounce his special mortgage. 3 La. 112. The vendor’s privilege confers rights superior to those which flow from a mortgage. It gives to the vendor, in addition to the right to have the property sold to pay the price, a right to the rescission of the sale on the nonpayment of the price. 3 An. 600. 12 Robinson, 279.

The vendor’s lien and privilege may, however, be renounced. As the privilege need not be stipulated in the act of sale, but results from the nature of the debt, so it need not be expressly renounced, but may be implied from the terms of the instrument. 3 An. 600. This impli • cation must, however, be clear.

The city of New Orleans insists that the Commercial Bank, having received bonds in payment of the price of the waterworks, must be considered as having renounced the privilege. In the case of Boujeat v. Smith, 16 O. S. 467, the court held that in a sale where mortgage notes were given in payment, the words were to be taken with reference to other parts of the act, and were not sufficient to justify the supposition that the privilege had been renounced.

If, however, from the terms of the contract of sale, it appears that the vendor actually received notes in payment of the price, and intended to release the purchaser, the debt will be considered as novated and the privilege discharged. 2 An. 175; 4 An. 543.

A careful examination of this act of sale of the waterworks satisfies me that there is clearly an implied renunciation of the vendor’s privilege, or rather that the vendor’s privilege did not inure from the terms of the contract. The charter of the Commercial Bank, passed in 1833, as aforesaid, provided that at any time after thirty-five years, the city should have the right to purchase the waterworks which the Bank was authorized to construct. Section 42 of the act, after determining the mode of selecting the arbitrators who were to fix the price should the city elect to buy, provides: “And the amount so agreed upon shall be payable in the bonds of the mayor, aldermen and inhabitants of New Orleans, bearing an interest of five per centum per annum, payable thereon semi-annually, and redeemable in not less than ten nor more than thirty years from the day on which said award shall be signed, and the said waterworks delivered over to said corporation of New Orleans.”

This provision is referred to in the act of sale. The language is: “And the said sums payable in the bonds of the city of New Orleans.” Again: “ The sale is made and accepted for-, the amount agreed upon, in settlement of which,” etc.

There is a wide difference between the bonds issued as these were, in the name of and payable by an important political corporation, and an individual promissory note. Bonds are commercial securities, and have characteristics of currency. They do not depend for their value upon the thing for which they were given.

So it seems to me that, in this contract of sale where payment was made in bonds, it was as if the price had been paid in current money; the language of the act upon which the contract was based, and the act itself, implies such intention, and indicates that it was intended to give a full discharge of the debt, without the reservation of any lieu or privilege to secure the payment of the bonds at maturity.

It is therefore ordered that there be judgment for the defendants, and that the plaintiffs’ demand be rejected with costs.

On Application por a Rehearing.

Morgan, J.

We affirmed the judgment of the district court for the reasons assigned by the judge thereof.

A rehearing is asked for on the ground that these reasons are insufficient and unsustained by the law.

The Commercial Bank owned the waterworks of New Orleans. These works were sold to the city of New Orleans, in payment whereof the city issued its bonds. No vendor’s privilege or mortgage was reserved. The act of sale was recorded. Subsequently the city took a rule upon the recorder of mortgages to show7 cause why the recording of the deed should not be erased. The rule was made absolute.

This action is instituted against the city to compel the reregistration of the act of sale, so as to preserve the vendor’s lien and privilege in the property sold.

We are of the opinion that when the city of New Orleans purchases a piece of property and gives its bonds therefor, the bonds must be considered as a payment of the price, and the property thus acquired, unless the contrary be expressly stipulated, is free of incumbrance.

For these reasons the rehearing is refused.


author: Taliaperro, J.

text:
    No. 5649.
    Succession of Mrs. Mary Coleman.-Opposition of I. W. Arthur & Co. et als. to final account.
    Xt is contended in. this case that the law only authorizes a homestead against the estate of the deceased husband or father, and not against the succession of the deceased mother. This construction of the homestead law is untenable. Such a construction would be at war with the plain meaning of the law, as well as with the obvious purposes for which it was enacted,
    APPEAL from the Probate Court, parish of West Feliciana. Haralson, J.

      W. W. Lealce, for opponents and appellants. Wichliffe <& Msher, for the administrators and heirs, appellees.
   Taliaperro, J.

The decedent left minor children in necessitous circumstances, the small succession left by her being insolvent. For the minors the benefit of the homestead act was invoked, and a small tract of land, valued at three hundred dollars — the only real estate left by the mother — was set over to them, and they were placed on the tableau and final account as privileged creditors for seven hundred dollars, to make up the one thousand dollars which is claimed for them under the law.

The opponents to the final account are all ordinary creditors. The only ground upon which they place their opposition is “ that the law only authorizes a homestead against the estate of the deceased husband father, and not against the succession of the deceased mother. That privileges are strieti juris, and the party claiming them must point to the express law which gives him such preference on account of the nature of the debt.”

Judgment was rendered rejecting the opposition of I. W. Arthur & Co., the opposing creditors, and homologating the final account.

From this judgment the opponents appeal.

It is clear that the construction of the homestead law, contended for by the opponents, is untenable. Such a construction would be at war with the plain meaning of- the law, as well as with the obvious purposes for which it was enacted.

There is no error in the decree of the court.

Judgment affirmed.


text:
    No. 5650.
    E. J. Gay & Co. v. R. D. Bovard-J. A. Holmes, Third Opponent.
    Privileges liave effect from the date on ■which the act or other evidence of the debt is recorded in the parish where the property affected is situated. But to have effect against those who have acquired, not who may acquire a mortgage, it must he recorded on the day it was entered into. The limitation relates only to the effect as to mortgages existing at the date of the privilege contract, and requires that such contract shall he recorded on the day of its execution in order to have a preference over mortgages then duly inscribed.
    APPEAL from tbe Seventb Judicial District Court, parish of Pointe Coupóe. JO. B. Olaiborne, judge ad hoc,.

      W. W. Lealce, for plaintifis and appellants. Yoist <& Semple, for intervenor and appellee.
   Howell, J.

This is a contest between the third opponent, having a mechanic’s privilege, and the plaintiffs, who hold a mortgage claim, for the proceeds of the sugar house machinery, upon which the said privilege rests. The plaintiffs insist that the third opponent has no preference over them, because his contract was not recorded on the day on which it was made, although their mortgage was not recorded for some months after such recording.

Art. 3273 R. C. C. “ Privileges are valid against third persons from the date of the recording of the act or evidence of indebtedness as provided by law.”

Art. 3274. “No privilege shall have effect against third persons unless recorded in the manner required by law in the parish where the property to be affected is situated. It shall confer no preference on the creditor who holds it over creditors who have acquired a mortgage, unless the act or other evidence of the debt is recorded on the day the contract was entered into.”

Here is the declaration that privileges have effect from the date on which the act or other evidence of the debt is recorded in the parish where the property affected is situated; but to have effect against those who have acquired, not who may acquire a mortgage, it must be recorded on the day it was entered into.

A mortgage recorded subsequently to the recording of a privilege does not take precedence of such privilege, because the law says that each shall have effect from the day of its inscription. Articles 3273, 3329, 3342. Nor does the law say that the failure to record the privilege on the day of the contract out of which it springs, shall destroy the privilege. The limitation relates only to the effect as to mortgages existing at the date of the privilege contract, and requires that such contract shall be recorded on the day ol its execution, in order to have a preference over mortgages then duly inscribed. The third opponent is entitled to the preference.

Judgment affirmed.


text:
    No. 5624.
    New Orleans Canal and Banking Company v. the Recorder of Mortgages of the Parish of Pointe Coupee et als.
    As 'this suit could not have been brought in the United States Circuit Court for want of jurisdiction over one of the defendants, it can not for the same reason be transferred to that tribunal.
    Besides, Be Boigne, one of the defendants, although a citizen and resident of France, was not competent to sue in the United States Circuit Court on the note and mortgage set up hy him, because his transferer, the payee thereof, was a citizen of this State and had no such right.
    Where the property oí one against whom judgment had been rendered appears to be subject to privileges or mortgages entitled to preference over the judgment creditor, the latter may, hy a rule to show cause, as incidental to the proceedings had for the purpose of selling the property, call upon those claiming such privileges or mortgages to show cause why they should not ho erased; and the seizing creditor can not he required to resort to a direct action against persons holding such mortgages and privileges.
    When the prescription that had already acquired on the mortgage note held by Be Boigne was renounced, the plaintiffs wore judicial mortgage creditors. That waiver renewed the debt f&r the person mailing said waiver, but it did not revive the mortgage as to plaintiffs or to their prejudice.
    APPEAL from the Seventh Judicial District Court, parish of Pointe Coupee. Hewes, J.

      W. W. Lealce, Byams <& Jonas, for plaintiffs and appellees; Farrar & Montgomery, Olarlce, Bayne c6 Rensluvw, for De Boigne, defendant and appellant.
   Wyly, J.

On the ninth February, 1859, James Barrow bought from Wm. Mayo Gray a plantation in the parish of Pointe Coupee, and as part of the price assumed to pay five mortgage notes given by his vendorfor $1931 36 each, bearing on the property, which said mortgage notes were executed on twenty-eighth June, 1856, and made payable to the order of John Slidell. All of these notes were paid except one held by Baron Charles De Boigne which matured on first March, 1861.

On eleventh June, 1866, alter prescription had acquired, James Barrow executed a written waiver of prescription on this note. And on sixteenth December, 1868, De Boigne recovered judgment against Barrow for the amount thereof with recognition of mortgage and vendor’s privilege.

On the second April, 1866, the New Orleans Canal and Banking Company obtained judgment against Barrow for $7000, which was duly recorded on twentieth April, 1866.

After issuing execution on their judgment, the New Orleans Canal and Banking Company took a rule on the Recorder, Wm. Mayo Gray, and Baron Charles De Boigne, to cause the erasure of the mortgage granted by Gray to Slidell and assumed by Barrow, on the ground that all the notes to secure which the mortgage had been given were paid or prescribed.

The defendant, De Boigne,' sought to have the cause removed to the United States Circuit Court on the ground that he was an alien and resident of Prance, the amount involved, exclusive of costs, exceeding five hundred dollars. The court, however, refused the application, and he excepted to the ruling of the court.

He also excepted to this proceeding by rule, contending that plaintiff should have brought a regular action.

The court refused the exception as to the form of the suit, and finding the claim of De Boigne had prescribed before prescription was waived and all the other notes embraced in the mortgage had been paid, gave judgment for the plaintiff and ordered the Recorder to erase said mortgage.

The defendant, De Boigne, ha’s appealed.

We think the court did not err in refusing to allow the case to be transferred to the United States Circuit Court.

The eleventh section of the Judiciary Act of 1789 vests in the circuit courts jurisdiction of civil suits at law and in equity when the matter in dispute, exclusive of costs, exceeds five hundred dollars, in three classes of cases:

Mrst — When the United States are plaintiffs or petitioners.

Second — When an alien is a party.

Third — When the suit is between a citizen of a State where the suit is brought and a citizen of another State.

In the case of Coal Company v. Blatchford, 11 Wallace 174, it was held by the Supreme Court of the United States that “in controversies between citizens of different States, where the jurisdiction of the courts of the United States depends upon the citizenship of the parties, if there are several coplaintiffs, each plaintiff must he competent to sue, and if there are several codefendants, each defendant must he liable to he sued in those courts, or the jurisdiction can not he entertained.” And this doctrine has been maintained in several other cases. 18 Wal. 553; 3 Bl. C. C. 84; 4 W. C. C. 286; 4 Me L. 363; 6 Bl. C* C. 105.

The Recorder of the parish of Pointe Coupee, who was required to erase the mortgage, was a necessary party, and he was not suable by plaintiffs in the United States Circuit Court. As this suit could not have been brought in that court for want of jurisdiction of one of the defendants, it can not, for the same reason, be transferred to that tribunal. Brightly’s Federal Digest, volume 1, page 126, sections 192, 193.

Besides, De Boigne was not competent to sue in the United States Circuit Court on the note and mortgage set up by him, because his transferrer, John Slidell, the payee thereof, wa¡s a citizen of this State, and had no such right. 16 Peters 317; 1 Story’s Laws 53; 4 Cr. 46; 2 H. 214; 13 H. 183; 5 Me L. 147 ; Brightly’s Federal Digest, volume 2, page 50, section 23.

in regard to the exception to the form of this proceeding, we will remark that in the case of Larthel v. Hogan et al., 1 An. 330, it was held that ‘‘ Where the property of one against whom judgment had been rendered appears to be subject to privileges or mortgages entitled to preference over the judgment creditor, the latter may by a rule to show cause, as incidental to the proceedings had for the purpose of selling the property, call upon those claiming such privileges or mortgages to show cause why they should not be erased ; and the seizing creditor can not be required to resort to a direct action against persons holding such mortgages and privileges.” And this doctrine has been frequently reaffirmed by this court. See 2 An. 649; 15 An. 334; 24 An. 256; Revised Code, articles 3379, 3166.

The court, therefore, did not err in refusing this exception.

ON the Merits.

It is shown that on the eleventh June, 1866, when Barrow renounced the prescription that had already acquired on the mortgage note held by De Boigne, the plaintiffs were judicial mortgage creditors. That waiver renewed the debt due by Barrow, but it did not revive the mortgage as to plaintiffs or to their prejudice. See Grayson v. Mayo, 2 An. 927; Succession of Kugler, 23 An. 455; Revised Code, articles 3466, 3379, 3285.

Judgment affirmed.


author: Tali APERRO, J.

text:
    No. 4376.
    H. J. Sampson v. Norman Whitney.
    Plaintiff claims a certain amount of money alleged to have been loaned to defendant. Tbe conduct of plaintiff, under the circumstances of the case, is suoh as not to leave it free from the suspicion that it was regulated so as to insure, under the guise of a loan, the payment of the losses of defendant in a gambling house kept by plaintiff, when the payment of said losses could not directly be enforoed on account of immoral consideration and from the violation by the ¡parties of a prohibitory law. Courts of justice are not open to litigation of this ldnd.
    PPEAL from the Sixth District Court, parish of Orleans. Oooley, J.

      Labatt <& Aroni, for plaintiff and appellee. Sauoier & Miehinard, for defendant and appellant.
   Tali APERRO, J.

The plaintiff sues for $2150 loaned by him, as he alleges, to the defendant, who refuses to pay it. The defendant answers, in substance, that the plaintiff predicates his demand on the pretense that he paid that sum of money on the defendant’s account, lost by the latter in a gambling game played in a gambling house kept by plaintiff, in which game no current money was actually exhibited or employed, but in lieu thereof pieces of bone or other similar substance were, by virtue of an understanding among the parties engaged in that game, used as the representative of money.

Defendant specially denies that he incurred any valid obligation in favor of plaintiff. He alleges that no obligation whatever can arise from the unlawful cause alleged by defendant, and that he owes plaintiff nothing. The plaintiff had judgment in the court below, and the defendant appealed.

The plaintiff is in court with but little grace. The evidence shows that he is the keeper of a house used as a place for gaming; that in his house persons engage in gambling of that kind where no current money is actually exhibited or employed, but in lieu of which pieces of bone or other material or substance is used by common consent and understanding of those engaged in such gambling as representing money; and this kind of gambling, expressly forbidden by law, the plaintiff promotes by furnishing a house for that purpose and affording the appliances necessary in such gambling, and especially the pieces of bone or other material, the conventional symbols of money among the gamesters; that at the close or ending of a game of this sort in the plaintiff’s house, where the defendant’s losses were heavy, the plaintiff redeemed the symbolical particles of bone or other material which he had officiously furnished the defendant with, in order to enable him to continue the game after all his own means had been lost. The payment thus made by the plaintiff to the several parties who had won from the defendant, was at best only the payment of money lost at a game prohibited by law. The plaintiff knew all the facts and circumstances under which lie paid tile defendant’s losses. He bad indirectly contributed to those losses, and be should not now be beard in demanding the reimbursement of the amount on the ground that be loaned the defendant money to pay bis losses at gaming. Under such a state of facts the defendant is not any more bound legally or morally to pay the plaintiff, than he is to pay the parties w.ho won from him at the prohibited game. It is not pretended that the payment was made by request of the defendant, or at his instance in any manner. The conduct of the plaintiff, on the contrary, was such as not to leave it free from the suspicion that it was regulated so as to insure the payment of the losses of the defendant under the guise of a loan to him, when ■ directly payment of those losses could not be enforced on account of the immoral consideration, and from the violation by the parties of a prohibitory law.

In this case we repeat what was said by this court in the case of Whitesides v. McGrath, 15 An. 401, similar in its character to the one at bar: “ Courts of justice are not open to litigations of this Kind.”

It is therefore ordered that the j udgment appealed from be annulled, avoided and reversed. It is further ordered that this suit be dismissed at plaintiff’s costs.


author: Ludeling, C. J.

text:
    No. 5175.
    White and Tomkins, Executors, v. Louisiana Levee Company.
    It is in evidence that the Louisiana Levee Company, defendant in this case, made no contract •with plaintiffs, the executors of Elder, but that said executors finished the work for which Elder had contracted, and that the balance due by the company was the amount for which the company confessed judgment. It is immaterial whether the succession of Elder was insolvent or not, as far as the responsibility of the Levee Company, under its contract, is concerned. "When the company pays the whole price for which it was bound, for the work, whether the price was paid to Elder or to his executors, it is discharged from all further responsibility.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Semmes & Mott, for plaintiffs and appellees. A. Pitot, for defendant and appellant.
   Ludeling, C. J.

B. J. Elder contracted with the defendant to construct certain levees, which he proceeded to construct until he died and his executors completed the work. They sue for the whole price $7161 60 of the work done by them.

The defendant alleged that the deceased, Elder, had been overpaid for work done under said contract prior to his death, and that the Levee Company owed only $2749 59.

The counsel for plaintiff thereupon took judgment against the Levee Company for the amount confessed, without prejudice to its right to prosecute its claim for the balance of the contract price. Subsequently judgment was rendered in favor of the plaintiff for this balance.

The evidence satisfies us that the Levee Company made no contract with the executors of Elder, but that said executors finished the work, for which Elder had contracted, and that the balance due by the company was the amount for which the company confessed judgment, to wit: $2749 59. It is immaterial whether the succession of Elder was insolvent or not, so far as the responsibility of the Levee Company, under its contract, is concerned. When the company pays the whole price for which it was bound for the work, whether the price was paid to Elder or to his executors, it is discharged from all further responsibility.

It is therefore ordered and adjudged that the judgment of the lower court be annulled, and that there be judgment dismissing the plaintiffs’ demand for the excess over $2749 59, confessed by the defendant, with all costs accruing subsequent to said confession.


text:
    No. 5696.
    Succession of Francois Poussin-On rule of G. W. Banker and T. C. Payan, to destitute the Administratrix.
    An attorney at law can not allow claims which the legal representative of the succession, as in this case, never saw or heard of, much less allowed.
    APPEAL from the Parish Court, parish of Rapides. Blaelcman, judge ad hoe.

      J. G. White, for Banker and Payan, appellees. Tí. A. Hunter, for the administratrix, appellant.
   Wyly, J.

In this suit, brought by Gr. W. Banker and Thomas C. Payan, claiming to be creditors, to destitute Mrs. C. Poussin of the administration of her husband’s succession, on the ground that she has failed to perform the duties of said office, the defense is set up that they are not creditors, their claims have never been allowed by her, although without her knowledge placed by her attorney on the tableau of debts, filed and homologated in 1866, and 'that said claims are barred by the prescription of five years which she pleads.

The judgment of the court was, that Mrs. Poussin file an account within ten days, and in default thereof that the public administrator take possession of said succession, and she be destituted. Mrs. Poussin has appealed.

Appellees joining in the appeal, pray that the order of dismissal be made absolute in terms.

There are several reasons why the judgment should be reversed and the suit dismissed for want of interest on the part of plaintiffs in the proceeding:

First — Their claims have never been allowed by the administratrix as required by articles 985, 986 C.’P., nor have they been established as valid debts'of the succession by the judgment of a court of competent jurisdiction.

Second — The defect just stated was not cured by the fact that these claims were included, without the knowledge or consent of the administratrix, in the statement of debts which'her attorney filed in 1866, and which was homologated because not opposed after advertisement. This is not the manner provided in articles 985. 986 C, P., for the allowance of claims; and an attorney at law can not allow claims which the legal representative of the succession, as in this case, never saw or heard of, much less allowed.

Third — If the claims had been allowed at the time of the filing of the tableau of debts in 1866, they, would not be binding on the succession, because the proof shows they were already prescribed, and the administratrix had not the power to renounce prescription.

Fourth — If the claims had been allowed by the administratrix at the time stated, prescription has since extinguished them, the record containing no evidence of the interruption'since then of the current of prescription.

As the plaintiffs in rale are not creditors of the succession, they have no interest in the matter of which they complain, and their suit must be dismissed.

It is therefore ordered that the judgment herein be annulled, and it is decreed that this proceeding be set aside and the petition be dismissed at the costs of appellees in both courts.


author: Taliaferro, J.

text:
    No. 5343.
    State of Louisiana v. William Evans.
    The coroner’s inquest being signed by the coroner and duly certified by him, the jurors having signed by making tlioir cross marks, and the whole being certified by the coroner who is a sworn officer, his certificate of the signatures 'of the jurors is sufficient.
    APPEAL from the Fifteenth Judicial District Court, parish of Terrebonne. Beattie, J. Criminal case.

      Thomas L. Winder, district attorney, for the State, appellee. Tobias Gibson, for defendant and appellant.
   Taliaferro, J.

The defendant was found guilty of the crime of murder and sentenced to hard labor in the penitentiary for life. He has appealed. On trial of the case the district attorney offered in evidence the coroner’s inquest held over the body of the deceased. It was objected to on the part of the defendant, on. the ground that the signatures of the pretended jurors was not verified as the law requires, the same having been made with a cross mart, and no witnesses thereto. The objection was overruled and a bill of exceptions reserved.

The coroner’s inquest was signed by the coroner, and duly certified to by him. The jurors signed by making their cross mark, and the whole was certified to by the coroner, who is a sworn officer. His certificate of the signatures of the jurors is sufficient.

Judgment affirmed.


text:
    No. 5579.
    Alexander Lirette v. John Carrane.
    On the fourth of March, 1865, defendant bought from Peter Mackley the property in dispute, and was put in possession of the same. On the thirteenth day of September of the same year, Ashworth obtained a judgment against Mackley in the following words: “By reason of the law and evidence being in favor of nLaintiif in the within suit, it is hereby ordered, adjudged and decreed, that plaintiff do recover judgment as prayed for.”
    The certificate of the recorder of mortgages shows that this judgment was recorded thus on the twenty-sixth of September, 1865: ' “ A judicial mortgage in favor of James Ashworth v. Peter Mackley as prayed for.”
    On the thirteenth of October, 1865, a fieri facias issued in the case of Ashworth v. Mackley» and the sheriff in his return states he seized the property in controversy, as the property o± Mackley, and advertised and sold the same.
    There is nothing in the above mentioned return, or in this record, to show that the property was ever in the possession of the sheriff. The opinion of the deputy sheriff that he seized the property is not sufficient. He should have stated facts showing how he effected the seizure. So far as the record shows, the defendant was not disturbedin his possession until after the sheriff’s sale.
    In the meantime, Mackley, the vendor, and Carrane, the' vendee, having learned that the recorder had made an error of descrip t-ion in the deed of sale from the one to the other, went together before the recorder, and by a public act, which was duly recorded, corrected the mistake.
    There is no force in the assertion that, inasmuch as the judgment of Ashworth against Mackley was recorded before the correction of the misdescription of the property sold to Carrane, the judicial mortgage in favor of Ashworth attached, and the correction was made too late. There was nota registry of such a judgment as could create a mortgage against the property. The judgment specified no amount, and the registry thereof gave no notice to third parties. There was no seizure and there could be no legal sale of the property, because the sheriff did not take possession.
    APPEAL from the Fifteenth Judicial District .Court, parish of Terrebonne. Beattie, J. Jury trial.

      Tdbias Gibson, for plaintiff and appellee. James L. Belden• and T. P. Sherburne, J. J. Foley, for defendant and appellant.
   Ludeling, C. J.

This is a petitory action for two lots of ground and the buildings thereon, situated in the town of Houma. The facts proved are that on the fourth of March, 1865, the defendant bought from Peter Mackley the property in dispute, and was put in possession of the same.

In September, 1865, a judgment was rendered against Peter Mackley in the following words: “By reason of the law and evidence being in favor of plaintiff in the within suit, it is hereby ordered, adjudged and decreed that plaintiff do recover judgment against the defendant, Peter Mackley, as prayed for. Thus done and signed in open court, this thirteenth day of September, 1865.”

The certificate of the recorder of mortgages shows that this judgment was recorded thus: “A judicial mortgage in favor of James Ashworth against Peter Mackley (as prayed for), inscribed in this office twenty-sixth September, 1865.”

On the thirteenth of October, 1865, a fieri facias was issued in the case of Ashworth v. Mackley, and the sheriff in his return states that he seized the property as the property of Mackley, and advertised and sold the same. There is nothing ip the returns, or in this record, to show that the property was ever in the possession of the sheriff. The opinion of the deputy sheriff that he seized the property is not sufficient. He should have stated facts showing how he effected the seizure. So far as the record shows, the defendant was not disturbed in his possession until after the sheriff’s sale.

In the meantime, having learned that the recorder had made an error of description in the deed of sale of the lots bought by him, by stating that they were in block twenty instead of twenty-eight, Carrane, the defendant, together with the vendor, Mackley, went before the recorder and by a public act, which was duly recorded, corrected the mistake. The evidence shows conclusively that at the date of the sale to Carrane, Mackley owned no other lots in the town of Houma but lots one and two in block twenty-eight, upon which were some buildings; that lots one and two in block twenty were vacant lots, which did not belong to Mackley, and that Carrane, the vendee, was put in possession of lois one and two of block twenty-eight át the date of the sale to him.

It is pretended, however, that inasmuch as the judgment of Ashworth against Peter Mackley was recorded before the correction of the misdescription of the property sold to Carrane, the judicial mortgage in favor of Ashworth attached, and the correction was madeJtoo late. A sufficient answer to this is that there was not a registry of such a judgment as could create a mortgage against the property. We have already seen that the judgment specified no amount, and the registry thereof gave no notice to third parties. 23 An. 132; 2 An. 917.

There was no seizure of the property, because the officer did not take possession of the property; and therefore there conld not have been a legal sale of the property. The sheriff’s sale was made in December, 1865, whereas, on the fourteenth of October, 1865, the mistake in the act of sale to Carrane had been corrected, and the plaintiff had notice of the fact.

It is therefore ordered and adjudged that the judgment of the lower court be reversed and annulled, and that there be judgment in favor of the defendant against the plaintiff, decreeing him to be the owner of the property in question, and for costs in both courts.


author: MORGAN, J.

text:
    No. 5674.
    Succession of Domitilde Hebert.
    Celestin LeBlanc, who gave a note in part payment of a plantation and slaves, due in jFebruary, 1862, to Jules LeBlanc, father of the minors in this instance, of whom said Celestin subsequently became the tutor, charges himself in his account with alargo deduction on said note, on the ground that said note was given, in part, for the price of slaves. But slavery had not been abolished when this note fell due, and as it was in his hands when he was appointed tutor, it must be considered as so much cash belonging to the minors. ■Wherefore the deduction can not be allowed.
    The tutor does not owe the interest claimed on the sums which came into his hands. They were not revenues, but merely a capital representing the total of the minors* inheritance, which was noarly absorbed by necessary expenses for the minors, by the payment of debts duo by the successions of the minors’ father and mother, and by the costs of administration. He can not be charged with interest on funds thus received.
    APPEAL from the Parish Court, parish of Iberville. Orowéll, J.

      W. B. Bobertson, Barrow & Pope, for appellants. Attain & Lauve, for opponents and appellees.
   MORGAN, J.

Celestin LeBlanc was appointed tutor to the minor children of Jules and Domitilde LeBlanc on the eleveuth of November, 1862. He filed an account of his administration on the seventeenth August, 1871. He died tenth June, 1872. The present litigation is carried on with the representatives of his succession. Celestin LeBlanc was never appointed administrator of the successions of the father or mother of the minors. He seems to have administered upon the same as tutor.

The main opposition to the account he has presented appears to be: Mrst — The amount of a note given by Celestin LeBlanc to Jules Le Blanc, father of the minors, in part payment of a plantation and slaves, due in February, 1862. In his account he charges himself with $3777 50. The face of the note was for $7431 97. He claims a deduction as stated, on the ground that the note was given, in part, for the price of slaves. Slavery had not been abolished when this note fell due, and as it was in his hands when he was appointed tutor, it must be considered as so much cash belonging to the minors.

Second — The second objection made to his account is that the tutor charges himself with $1650, the proceeds of fifty-five hogsheads of sugar at three cents per pound. We think the evideuce shows that the sugar was worth six cents per pound. He should, therefore, have charged himself witli $3330.

Third — The important opposition to the account is the claim for interest which the opponents allege should be charged to the tutor upon all the moneys which came into his hands during his tutorship, and which he neglected to invest. The amount now claimed from him is in the neighborhood of $16,000. The claim is founded on the 347.th article of the Code, which declares that “the tutor shall be bound to invest, in the name of the minor, the revenues which exceed the expenses of his ward, whenever they amount to five hundred dollars. In default thereof, he shall be bound to pay on such excess the rate of interest allowed by law.”

- Revenue we understand to mean income, or annual profit received from lands or other property. If,'then, the money which this tutor received had proceeded from the minors’ revenues and he had not invested them according to law, there would be no question as to his liability. But it is not asserted that this is the state of facts presented by the record. The moneys received by the .tutor were, in reality, the total of the minors’ inheritance. With them he paid the debts due by the successions of the minors’ father and mother. This indebtedness, together with the expenses of the minors 'and the costs of administration, amounts to very nearly the sums which he has received for their account. He can not be charged with interest on funds thus received.

The account is a very confused one, owing, no doubt, in part at least, to the circumstances which surrounded the representatives of the succession. During most of the time a state of war existed, the courts were not open, and the tutor had often to act without authority, because there was no one in authority whose advice and authorization he could procure.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended by striking therefrom the amount of interest allowed therein; that the tableau be amended by adding thereto the sum of $3777 50, balance of amount of note given by Celestin Le Blanc to Jules LeBlane, due in February, 1862; that $1650 be added to the account for the sugar sold by the tutor; that the sum allowed to W. B. Robertson be reduced to $250, and that as thus amended the judgment be affirmed, the costs to be borne by the succession.

Rehearing refused.


author: Morgan, J.

text:
    No. 5653.
    Vernon K. Stevenson v. Lavinia Edwards et al.
    This is a suit personally against a tutrix, one of the defendants, on six mortgage promissory notes given by her, and also as representing those of her children who were minors when the suit was brought, and the majors who joined in the act of mortgage, for the amount of the notes sued on, and for a decree of lien and privilege on the property mortgaged. The defendant, one of the heirs, a minor when judgment was rendered but now of ago, appeals from said judgment.
    The motion to dismiss defendant’s appeal on the ground that all his joint obligors have not been cited and made parties to the appeal, can not prevail. He is not a joint obligor; his liability is as heir of his father, and his liability is fixed by his interest in his father’s succession.
    When the lather of the appellant died, he was largely in debt. The representative of his succession, in order to pay off his indebtedness, was authorized by the judge, oh the recommendation of a family meeting, to borrow a sufficient sum to discharge this indebtedness. Hence the notes now sued on. This was not the creation of a debt; it was the acknowledgment of one and providing means to pay it — all of which was done in the interest of the heirs. The appellant’s liability, therefore, is fixed by his interest in his father’s succession. To the extent of that interest the judgment binds him, but to nothing more.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Posey, J.

      Hays & Adams, Pavrot & Lamon, for plaintiff and appellee. Barroiu <& Pope, for David A. Barrow, defendant and appellee. J. Fuqua, for T. B. Edwards, defendant and appellant. John J. Finney, for H. L. Edwards, defendant and appellant.
   Morgan, J.

In March, 1862, Mrs. Edwards, as tutrix to her then minor children, issue of her marriage with William Edwards, deceased, represented to the court of their domicile that when her husband died he left debts amounting to over sixty thousand dollars. She prayed to be allowed to mortgage the minors; interest in the succession of their father for an amount sufficient to discharge this indebtedness, and that a family meeting be convened for tire purpose of giving their advice regarding her petition.

The family meeting was ordered, and, after deliberation, they recommended that the tutrix be empowered to mortgage the interest of the minors in the property belonging to the succession of their father, or any part thereof which she might see fit, and for such sum as might be necessary to discharge the indebtedness up to the amount stated in her petition.

The deliberations of the family meeting were approved, and on the seventh April, 1862, she executed several promissory notes amounting to fifty thousand dollars, to secure the payment of which, she mortgaged property belonging to the succession of her deceased husband. She was joined in the act of mortgage by Mrs. Eliza L. Edwards, wife of William A. Seay, assisted by her husband and Laura Jane Edwards, wife of John Bemiss, authorized by her husband, heirs of age and equal in interest with the minors in the succession of their father, William Edwards.

The plaintiff owes six of the notes given by the tutrix, amounting to $27,000, exclusive of interest.

He instituted suit against the tutrix personally, and as representing those of her children, who were minors when the suit was brought, and the majors, who joined in the act of mortgage, asking that judgment be rendered against them for the amount of the notes sued on, and that he be decreed to have a lien and privilege on the property mortgaged.

Judgment was at first rendered as prayed for on the eighteenth September, 1866, but it appearing that some of the heirs who were minors when the mortgage was created had become majors before the judgment was rendered, a new trial was granted; the heirs who had come of age were cited, and on the fifteenth May, 1867, judgment was finally rendered against all the parties to the amount of his or her liability, as heir directly or by representation in the succession of William Edwards.

H. L. Edwards, one of the heirs, a minor when the judgment was rendered, but now a major, appeals from this judgment. His right to do so, at this time, is not denied.

We are asked to dismiss his appeal upon the grounds that all the joint obligors of the appellant have not been cited and made parties to th,e appeal.

If the appellant was a joint obligor the motion would prevail, under the authority of 3 R. 142; 5 R. 225; 5 An. 174. But he is not a joint obligor. His liability is as heir of his father, and his liability is fixed by his interest in his father’s succession. Each one of the heirs was bound for his virile portion of that debt; no judgment rendered against one of the heirs could affect either of the coheirs. Either of the heirs could have been sued for his share of the debt in a distinct suit, and neither heir could have been called upon to pay his coheir any part of the judgment rendered against him. In this view of the case the appellant’s concernment is only with the plaintiff, and the only question which we will have to determine will be, was the judgment, as against the appellant, properly rendered?

When the father of the appellant died he was largely in debt. The representative of his succession, in order to pay off this indebtedness, was authorized by the judge, on the recommendation of a family meeting, to borrow a sufficient sum to discharge this indebtedness. Hence the notes now sued on. This was not the creation of a debt. It was the- acknowledgment of one, and providing means to pay it; all of which was done in the interest of the heirs.

Counsel for appellant contends that if the minors are bound at all upon these notes, it is a qualified and limited liability, extending only to the value of the succession property. This is true. And he says that any judgment which goes beyond, as in this instance, and condemns the minors absolutely for the full amount of the notes, is contrary to law, and should be reversed.” If this were the fact, the judgment would, in part, at least, be erroneous. But we do not so read it. The judgment is “against each of the above named defendants to the amount of his libility as heir to the parties aforesaid.” The appellant’s liability, therefore, is fixed by his interest in his father’s succession. To the extent of that interest the judgment binds him, but to nothing more.

Judgment affirmed.


text:
    No. 5614.
    Charles Hoffman v. J. O. Howell and I. F. Riley.
    The judgment having boon rendered by default and no notice of judgment having been given when the appeal was taken, it was therefore in time.
    The bond of appeal was given for the amount fixed to cover costs and in favor of the person who is clerk. This is sufficient.
    The plea of prescription having been filed in this court and the appellee having asked that the case bo remanded to show an interruption of prescription, under the law this must be done.
    APPEAL from the Fifth Judicial District Court, parish of East Feliciana. Posey, J.

      W. P. Her nan, for plaintiff and appellee. P. O, Hardee, Gross <& Pipldns, for defendant and appellant.
   Ludeling, C. J.

A motion to dismiss this appeal is based on the grounds that the appeal was not taken within one year after the judgment was signed, and that the bond of appeal, though made in favor of the person who is clerk of the court, does not state that he is clerk of the court.

The judgment was rendered on default, and no notice of judgment had been given when the appeal was taken. It was therefore in time. Taylor v. Woodward, 25 An. 212.

Neither is there any force in the second objection — the bond was given for the amount fixed to cover costs and is in favor of the person who is clerk.

The plea of prescription was filed in this court, and the'appellee has asked that the case be remanded to show an interruption of prescription. Under the law this must be done.

It is therefore ordered that this case be remanded to the court a qua to give the plaintiff opportunity to prove an interruption of prescription.

Mr. Justice Howell was recused.


text:
    No. 5627.
    James Madison v. James Dyer.
    Xa this controversy for the office of coroner, under section 1419 of the Revised Statutes, the exception that the suit was not brought within ten days after the election must prevail.

      APPEAL from the Fifteenth Judicial District Court, parish of Terre-bonne. Beattie, J. Jury trial.

      Charles W, Du Boy, Goode & for plaintiff and appellee.' John Bay, for defendant and appellant.
   Wyly, J.

This is a controversy for the office of coroner, under section 1419 of the Revised Statutes. The exception that the suit was not-brought within ten days after the election must prevail. For the reasons stated in the following case of Belden v. Sherburne, the judgment herein in favor of plaintiff must be annulled and the suit dismissed.

It is therefore ordered that the judgment herein be annulled, and it is decreed that this suit be dismissed at plaintiff’s costs in both courts.


text:
    No. 5625.
    J. L. Belden v. Thomas P. Sherburne.
    "Where a statute authorizes an action and prescribes the delay ■within which it must “be . instituted, suit must be filed within that delay, or the action, if excepted to, will be dismissed. In this instance the suit should have been brought witlvm ten days after the election. The court below erred in not maintaining the exception of the defendant on that ground. The law is not ambiguous, and no room is left to the discretion or equity powers of this court; it must, therefore, be, administered as.it is, however unwise some of its provisions must appear.
    APPEAL from the Fifteenth Judicial District Court, parish of Terrebonne.

      Beattie, J. Jury trial. Winder & Du Boy, for plaintiff and appellee. John Bay, for defendant and appellant.
   Wyly, J.

This is a controversy for the office of Parish Judge. The suit was brought under section 1419 of the Revised Statutes, which provides that “ Any candidate for either of the offices of clerk of the district court, parish recorder, sheriff, coroner, justice of the peace, and any other parish officer that may be elected by the people, intending to contest an election, shall, within ten darjs after the election, file in the district court for the parish in which the election may have been held a petition setting forth the facts on which he intends to contest the election.”

The court gave judgment for the plaintiff, and the defendant appeals. We think the court erred in not maintaining the exception of the defendant, that the action is barred, because it was not instituted within ten days after the election, as prescribed by the statute.

The election was held on second November, 1874, and this suit was not filed till thirtieth day of December following.

Where a statute authorizes an action and prescribes the delay within which it must be instituted, suit must be filed within this delay .or the action, if excepted to, will be dismissed. The act does not fix the period within ten days after the State Returning Board shall have finished the canvass; it says the suit must be brought “within ten days after the election.” Here the suit was not filed until nearly sixty days after the election.

The argument urged to maintain the suit, notwithstanding the exception, would be entitled to great weight if the question' was within the discretion or equity powers of the court, or if the law was ambiguous; but there is no room for construction here; the statute in precise terms limits the period within which such suits shall be instituted; and the court must administer the law as it is, however unwise some of its provisions may appear.

In Deslonde v. Lozano, 22 An. 794, this court held that an action to contest an election for parish officers must be brought within ten days after the date of the election, otherwise the suit will be dismissed. This decision, as well as the express terms of the statute, must dispose of the case at bar.

It is therefore ordered that the judgment herein be annulled, and that this suit be dismissed at plaintiff’s costs in both courts.