text:
    No. 12,629.
    State of Louisiana vs. Aaron Johnson.
    "When the accused does not choose to testify it is not error on the part of the judge to charge the jury that he is not bound to testify, and that his not having testified must not be construed against him.
    The admonition by the judge to the jury was not a comment on the fact.
    •It was a compliance with the language of the statute, and, although not requested by the accused, it was not reversible error to instruct them not to interpret his silence against himself.

      APPEAL from the Eighteenth Judicial District Court for the Parish of Terrebonne. Caillouet, J.

      M. J. Cunningham, Attorney General, and L. C. Moise, District Attorney (P. A. Simmons, Jr.,' of Counsel), for Plaintiff, Appellee.

      Beattie & Beattie for Defendant, Appellant.
    Submitted on briefs December 4, 1897.
    Opinion handed down February 7, 1898.
   The opinion of the court was delivered by

Breaux, J.

The accused was charged with larceny. He was convicted and sentenced to hard labor.

He prosecutes this appeal and complains of the charge of the judge to the jury, in which he instructed them that while under the statute the accused was permitted to testify, yet it did not require him to testify; and if he did not, that fact was not to be taken against him.

His counsel in his behalf urged that it was error on the part of the judge to allude at all to the matter, as it tended to injure the cause ■of his client. Counsel does not contend that the trial judge stated that his not having testified was to be taken in any manner against the accused, but on the contrary he admitted that the trial judge’s statement was absolutely fair and correct as to what happened on the trial.

We are referred by counsel for the defendant to the case of State vs. Carr, 25 An. 408.

The judge in the cited case, supra, had been requested to charge ■“ that the fact that defendant had offered no evidence is in no way to be taken as an admission of guilt.” The judge refused to thus charge, and instead instructed the jury that all circumstances against the prisoner within his power to explain, which he refuses to do, are to be taken and weighed by the jury as circumstances against the prisoner.”

On appeal, this was held: Error, and the judgment was reversed for the reason that it might have prompted the jury to conceive that defendant, by not offering any evidence, had admitted his guilt.

The accused here sought to apply the rule just announced to his own case, and urged, as we take it, that, as in the cited case, he was warranted in depending on the deficiency of the proof offered by the State, and could without prejudice to his cause decline to avail himself of the right to testify in his own case.

We do not detect that the charge, as given in the case before us for decision, trenched upon the- presumption of innocence which exists in favor of an accused. If, in the cited case, the requested charge had been given as part of the original charge, the accused would have had no right to a reversal on the ground that the court had called attention to the fact that the defendant had offered no evidence; if followed, as it should have been in the District Court,, with the instruction that this was not to be “ taken as an admission of guilt;” that it was his right to rely upon insufficiency of proof.

For the reason that would have sustained the reversed judgment in the case cited above, in the case here the presumption of innocence was safeguarded by the instruction given.

Counsel for defendant cites Wilson vs. United States, 149 U. S. 60; Austin vs. People, 102 Illinois, 261-264, and State vs. Cameron,, 40 Vermont, 556.

In each of these cases the indiscreet remarks of the prosecuting-officer, while addressing the jury, gave rise to the question involved The prosecuting officer had commented upon the fact that the-accused did not testify. In each case the trial judge had permitted counsel to proceed with the comment, and the court had failed to stop counsel.

From the first cited case immediately, supra, we quote: “This view of the effect of objections taken to the cause of the District Attorney, and to the failure of the court to properly condemn it, renders unnecessary to consider any other alleged errors. This-quotation serves as a correct reference to the similar point decided in each case; all growing out of the indiscreet remarks of the prosecuting officer, not stopped as he should have been. Here a different question arises. The trial judge, in obedience to the statute, instructed the jury that the silence of an accused, who has the right to testify, if he chooses to, is to have no effect.

We are, in considering the objection to the charge, impressed by the fact that it is made the duty of the court to give to the jury a knowledge of the law applicable to the case.

The last proviso of the statute, No. 29 of 1886, declaring who are competent witnesses in criminal proceedings' reads: “That his failure to testify shall not be construed for or against him, but all testimony shall be weighed and considered according to the general rules of evidence, and the judge shall so charge the jury.”

In giving the jury the instruction he did, he obeyed the letter of the law.

Ingenious counsel for the accused in the brief state: That no judge would presume to comment upon the fact that a witness had not been called by the accused, and that even if the other evidence in the case plainly showed that a certain person knew all about the matter, still if the accused failed, or refused to place the person on the stand the judge could not legally call the attention of the jury to the fact; that he would not be allowed to say “there seems to have been a witness who knew all about this matter — he could have been produced by the accused — indeed, the accused was the only one who could have made him a witness — no one else could have done so; but, gentlemen of the jury, that fact must not be construed against the accused — he was not bound to do so.”

The affirmative statement of the court as put by counsel in argument is so pronounced and so directly bears on the case of an accused for not producing a witness that it renders of no effect all subsequent admonition of the court.

Here the case is different. It was not assumed that a certain person knew all about the facts. On the contrary, the court informed the jury in substance that the statute protected the accused if he chose not to testify, and the instruction was given entirely with the view of protecting the accused.

There are accused persons, without self-command, timid, easily agitated, against whom there is circumstantial evidence difficult, even by himself, to explain, who may well be advised not to testify; others for other reasons may deem it desirable to remain silent.

As to these and all other accused who do not testify in their own defence, surely the court may give the instruction as given in this case. In our judgment the statute was intended, in aid of justice. If it should appear, that by the manner of its execution or the effect it had on the case, it was an instrument of oppression, it would then-become necessary to interpose judicial authority.

The case before us presents no such issue. The accused remained silent, and the judge informed the jury that the privilege of silence-should not occasion question or suspicion of any kind. We would not be justified in assuming that the jury took a contrary view, and upon his silence found him guilty, despite the instruction of the-court.

There is no evidence before us that the statute was applied in a manner harsh and unjust, or that such was its effect before the jury.

The proviso of the statute complained of is germane to its purpose- and covered by the title.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 12,592.
    Marion B. Monroe vs. H. Weston Lumber Company et als.
    As Relates to the Utterances oe the Attorney During the Trial, one oe Plaintiee’s Grounds.
    Tlie attorney, not his client, is responsible for (alleged) defamatory utterances of the former in the course of the trial of the latter’s cause. R. S. 123.
    As Relates to Proceedings Complained oe.
    The burden of proof to show a want of probable cause was upon the plaintiffs. In other words, the want of probable cause will not be inferred from the mere fact of the prosecution.
    The evidence for plaintiff did not prove that defendants instituted suit against him, and made the damaging allegations complained of, without cause for such action.
    Verdict of jury, and judgment of court affirmed.
    A PPEAL from the Civil District Court for the Parish of Orleans. ■‘A Monroe, J.

      A. B. Philips and Albert Voorhies for Plaintiff, Appellant.

      Merrick & Merrick and George C. Walsh and James J. McLoughlinfor Defendants, Appellees.

      Argued and submitted December 1, 1897.
    Opinion handed down January 10, 1898.
    Rehearing refused February 21, 1898.
   The opinion of the court was delivered by

Breaux, J.

In this case the plaintiff averred that the defendants are indebted to him in solido in the sum of ten thousand ($10,000) dollars, because in the matter of Marion B. Monroe vs. His Creditors they combined and confederated to prosecute him for fraud in order to defeat his discharge; that they falsely charged him with fraud in concealing his commercial books and in knowingly omitting property from his schedule of assets and in other respects; that said proceedings were malicious and without probable cause, and were maliciously prosecuted from the date of their filing up to the final decision of the Supreme Court in his favor.

That in the course of the proceedings they maliciously slandered and libeled him by verbal and written accusations of fraud before the lower court, and more especially in the Supreme Court, in their briefs and in oral argument of their counsel.

That these charges and accusations were false and published by defendant maliciously; they well knowing at the time there was no truth in them.

That the petitioner has been injured in consequence thereof, in his feelings, good name and business, in the full sum of ten thousand ($10,000) dollars. He admitted that he had been vindicated by the judgment of the Civil District Court and Supreme Court, rendered in his favor.

To this petition Horace U. Beach, one of the defendants, excepted on the ground that the petition was too vague and indefinite for him te safely answer, for the reason that the petition did not disclose time, place and circumstance.

That the dates were not set out, and that the petition did not show whether the plaintiff was suing the defendant individually, or as agent of the lumber company, or whether the plaintiff was suing to obtain judgment against the defendant, or the lumber company.

He therefore prayed that his exception be sustained and plaintiff’s petition be dismissed.

J. J. Clarke, another defendant, excepted to the petition on the ground that the petition was too vague and indefinite for defendants to safely answer the same, and that he did not state the time, place or circumstances, and that the date of the alleged acts of the defendants were not set out. He therefore prayed that the plaintiff’s petition be dismissed.

J. A. Blaffer also excepted substantially on the same ground.

Hinderer, another defendant, excepted on the ground that if he was intended he had been improperly cited, and improperly described in the petition, as his name was Frederick Hinderer, and that he did not know any one by the name of Ferdinand Hinderer.

The plaintiff thereupon, with leave of the court, filed a supplemental petition, averring that the commercial firm of Blaffer & Sons was composed of J. A. Blaffer and his son, A. S. Blaffer, deceased; that the latter was unmarried, and left his father and mother, his forced and only heirs.

Reiterating the allegation of the original petition, the plaintiff gave the following dates and places for the purpose of making his charges of libel, slander, and malicious prosecution more specific:

In the Civil District Court, April 19, 1894, defendants filed opposition to plaintiff’s discharge in surrender proceedings, and there was a trial before jury on the 13th and 14th of June. Date of filing transcript of appeal, November 5, 1895. Date of filing brief, February 11, 1895; and March 16 and April 6 of the same year.

He averred, in addition, that the defendants had authorized their counsel to make charges against him (the plaintiff), and that they were present during the said proceedings in the court.

The defendants thereupon filed exception to the supplemental and amended petition, to the following effect:

That the proper parties had not been made by the plaintiff, and in the event of this exception being overruled, further excepted, that the supplemental and amended petition attempted to change the issue between plaintiff and the defendants, and that the petition should be dismissed for these x’easons.

Further excepting the defendants averred, that the supplemental and amended petition, as well as the original petition, discloses no cause of action. The judgment of the lower court maintained the exception, and dismissed the suit of plaintiff.

Upon appeal to this court, the judgment of the lower court was reversed, the case was remanded, and ordered to be reinstated on the docket (49 An., p. 594), the court holding that a petition which recites and avers, in certain proceedings, pleadings and printed briefs, in a certain suit, depending in a court of justice and which the parties thereto caused and directed their attorneys at law to prepare and file, are certain libelous and slanderous statements, discloses a cause of action.

Proceedings were renewed in the lower court. The defendants filed a plea of prescription of one year, and an exception of res judicata, which were by consent referred to the merits.

The defendants then filed their answer, a general denial, admitting, however, that on the eleventh day of April, 1894, in the case of Marion B. Monroe vs. His Oreditors, an opposition was made and filed by their counsel, charging fraud against the said Marion B. Monroe, and they averred that said opposition was made and presented by their counsel in good faith, not maliciously, and with probable cause; further answering the defendants deny, that they instructed their counsel to make any charges against plaintiff in pleadings or argument that were not true, and averred that whatever was done by them, was done in good faith, without malice, and in pursuit of their legitimate rights.

They further averred that they and their attorney had reasonable grounds of suspicion in making the charges.

The case was heard before a jury, and upon their verdict in favor of defendant judgment was rendered by the lower court, rejecting the demand of the plaintiff, at his cost.

The plaintiff prosecuted the present appeal.

The case was remanded chiefly to enable the plaintiff to prove his allegations.

Before us, on the trial of the exception on the appeal which resulted in a decree remanding the ease for trial on the merits, the truth of the allegations was not only disputed, but, in the nature of things, they were conceded as true. The rule is well known, proper on the trial of exceptions; all averments of the petition are taken as true.

The plaintiff had in his petition alleged that the defendant had maliciously defamed him by accusations of fraud in the course of judicial proceedings before the court, and by approving the alleged calumnious and abusive words of their attorney in the course of his argument in the case No. 11,940, Monroe vs. His Creditors, 48 An. 801.

On the trial in the District Court, after the case now before us for our decision, the damage suit for asserted defamation, had been remanded, the evidence in the opinion of the jury did not sustain the averments of plaintiff.

We have carefully examined the testimony upon which the jury based their verdict, and we have not arrived at the conclusion that th& verdict was erroneous. Two, the most pertinent, questions for the jury were: whether the defendants were responsible for the words of the attorney; and in the second place whether the defendants had probable cause to believe the allegations made for the writs of attachment they sued out as creditors under the instructions of their attorney against the plaintiff, who was their debtor. The first question stated related particularly to the words of the brief of counsel for the creditors in the ease cited supra, and the second question to the fraud charged upon which the proceedings were had against the plaintiff, an alleged insolvent debtor. In regard to the first question, first, that if the jury concluded, as we have every reason to assume they did, that fair and reasonable comment, however severe in terms at times, are justifiable by the facts of the case, and in the second place, if the attorneyoversteps the proper limits and defames any one, the client is not responsible, they only gave effect to the statute which prescribes that a client shall not be held in damages for the slanderous or libelous words of his attorney. Rev. Statutes, Art. 123.

In support of plaintiff’s position counsel urged that the authority of the attorney must be presumed, and that the silence of his client imports that he gave consent to the utterances made. We are constrained to hold a different view.

In our judgment the position is not tenable. When the words are defamatory, in our judgment, the language of the statute from which we have before quoted places the onus'oi proof of the consent and direction of the client upon the plaintiff claiming damages.

The attorney is responsible, we think, unless in some sort or method the client has made his defamatory words his own.

In the contemplation of the statute the attorney is answerable and not the client, even if he does not expressly, at the time, disavow that he has given countenance to the utterances. While it is true the authority of the attorney, acting within the limits of his duty to his client, is presumed — in fact, it can not be disputed, it is no part of the attorney’s duty to his client, if he defames any one in a manner not at all necessary to sustain the action. In other words, if the language used was necessary in argument, itwas not slanderous or libelous. If it was not necessary, and was slanderous or libelous; the attorney was responsible.

The second question in the case, which must have been submitted to the jury and is covered by their verdict, grows out of the charge of fraud brought against the plaintiff, by the defendants in proceedings, which resulted in the acquittal of the plaintiff of fraud. Monroe vs. His Creditors, 48 An. 801.

Here the question is probable cause for defendants’ action against •plaintiff velnon. The question for the jury was whether the defendants had probable cause to believe allegations made in court and of record, under the advice of their attorney.

There was conflicting testimony of record as to whether defendants here were correctly informed in’ regard to the title of real estate involved.

The defendants alleged that they were circumvented and duped by the misstatements of the plaintiff.

Despite the earnest denial of the plaintiff, the jury arrived at the conclusion that the weight of the evidence upon this point was with the defendants. In reviewing the verdict and the judgment of the court a qua we have carefully considered the testimony of each witness, and have found no testimony which in our opinion would justify us in reversing the- judgment and setting aside the verdict. We have not discovered any want of good faith on the part of the defendants, or that they were actuated by malice or desire of injuring the plaintiff.

This court has held that actions for damages of this sort are not favored by law. Laville vs. Biguenaud, 15 An. 605.

Unless it appears that there was malice and a want of probable cause shown, we think it is our duty to affirm the verdict.

It is therefore ordered and adjudged that the judgment of the District Oourt is affirmed.


author: Breaux, J. Breaux, J.

text:
    No. 12,576.
    The State of Louisiana vs. Nelson Thomas.
    A venire drawn in the absence of two members of the jury commission will notbeset aside, it appearing that the absent members had notice of the lime and place for the drawing.

      The¿roces verbal of the drawing of a venire may be supplemented by the certificate. of the clerk, made as required by the statute, showing that the absent commissioners had been duly notified. It need not be incorporated in the ¿roces verbal of the drawing of the venire.

    The suggestions of the District Judge in matter of the clerk’s certificate were proper, and offer no ground for objection.

      The¿roces verbal written by the deputy clerk, under the control and direction of the clerk, is not an irregularity for which a venire should be quashed.
    The date for the drawing of the venire was sufficiently shown, and in time to notify all concerned.
    The requested instruction to the jury was sufficiently clear to make it proper to instruct the jury that «* concealment after the act, without previous preparation, is not necessarily proof of intent.”
    The trial judge should, in all trials for murder, instruct the jury under Art. 785 of the Revised Statutes that they may find the prisoner guilty of manslaughter, State vs. Brown, 41 An. 411, and State vs. Jones, 46 An. 1395.
    It was a misdirection in matter relating exclusively to a murder trial, in which the court is specially required to inform the jury that four verdicts might be-found.
    A PPEAL from the Tweenty-third Judicial District Court for the •i* Parish of Tensas. Tullís, J.

      M. J. Cunningham, Attorney General, and B. F. Young, District Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      George H. Clinton and Abner E. Green for Defendant, Appellant.
    Submitted on briefs November 20, 1897.
    Opinion handed down December 28, 1897.
    Rehearing refused, reasons assigned, February 21, 1898.
   The opinion of the court was delivered by

Breaux, J.

The defendant was indicted by the grand jury of the ' parish of Tensas on the sixth day of July, 1897, for the alleged murdor of Ada Jackson in the parish on the fourth day of July, 1897.

On July 7, 1897, he presented to the court a motion to quash the venire and a motion to quash the indictment.

The following were the grounds:

That the proces verbal did not set forth that all the members of the jury commission had been notified of the time and place for the drawing of the venire, nor that the jurors selected were to serve at any particular term or any specified day, and that two of the members of the jury commission were absent; that the proees verbal was written by one who was not a member of the commission. The motion was overruled. The accused also contends that the judge erred in refusing to specially instruct the jury as requested.

The accused was found guilty as charged.

From the verdict of the jury and sentence of the court, he prosecutes this appeal.

The proces verbal shows that the commission met on the 24th of 'May, 1897, to draw persons to serve as jurors at the ensuing term of •the court for the parish to serve, beginning on Monday of July, 1897.

The date was left in blank.

This omission the defendant urges, through counsel, was a fatal irregularity.

The order of the court in due time directed the commissioners to summon a jury for the first and second week of the regular term of the court beginning on Monday, July 5, 1897, the date which was emitted from the proees verbal. The order was spread on the minutes and was also published in the official newspaper of the parish, and ■the commissioners manifestly acted with reference to that date. The ■omission was owing to a clerical oversight which does not appear to •have prejudiced the defence.

No prejudice of any kind to the defendant is alleged.

Parol evidence of the clerk having been admitted (over defendant’s objections set forth in a bill of exceptions) to supply the omission, counsel assert that the proces verbal of the proceedings of the jury commission is in character sacred and should not be changed by the testimony of witnesses or made dependent upon the unreliable memory of men.

The argument in support of the position is not, in our view, convincing. Even with reference to the minutes of a court which have always been considered as clothed with authenticity, unimportant omissions may be supplied, a date may be inserted. The court for a similar reason may order a blank filled with a proper date, prior to taking any action based upon the document to which the date is added.

The statute from which we quote has not given the importance claimed to omission in the prooes verbal, for “ defects in the drawing of the jury can not be taken advantage of unless it appears that some fraud has been practised, or great wrong committed in the, drawing and summoning of jurors that would work a great and irreparable injury to defendant.”

There was nothing of the sort in this case — only the omission of a date evidently omitted by oversight which the previous order shows, and every one must have known bore the proper date. The omission and the correction could not take any one by surprise or be in the least misleading. It was not shown that it could have caused the least injury.

We pass to the next point argued by defendants’ counsel: that the clerk’s certificate showing proper notification of the absent commissioners was not made in due time.

The statute provides: “Three members of said commission together with the clerk of the District Court shall be sufficient number to perform the duties imposed by this act, provided all the members shall have been duly notified by the clerk of the District Court of the time and place designated by him for the meeting of said commission, which notification shall appear from the certificate of the clerk in case of the absence of any member thereof.”

As a matter of fact the clerk had given the required notice as shown by his own testimony. The duty had been performed although there was no record evidence, as there should have been, establishing that it had been performed.

The court after the clerk had testified directed the clerk to make a proper certificate based upon his testimony.

In case of the absence of any jury commissioner, it shall be made to appear that he had been duly notified. The time within which it Bhall be made is not specified by statute.

In our judgment it was not too late to make the affidavit at the time the motion to quash was tried. The evident purpose in adopting the statute was to require notification, in due time, to each of the commissioners. The requirement as to notification had been complied with and proof of the fact was not in our opinion untimely admitted in evidence.

Notification is required in order that three members of the jury commission together with the clerk of the District Court may be a sufficient number to perform the duty imposed by the act.

The complaint is not that the members of the jury commission were not notified; but that the proees verbal does not set forth that they were notified. The language of the statute is a complete answer: it is made the duty of the clerk to frame a proper certificate ■showing that notice has been given to the commissioners. Although it is desirable that it be made as soon as possible after the notice, the delay within which it should be made is not expressed, nor is it set forth in the statute that the certificate shall be part of the proees verbal of the jury commission, as contended by the defendant.

It is true, as stated by counsel for the accused, that it appears of record that it was at the suggestion of the court that the certificate was made.

We do not think there was any impropriety in the suggestion, the court has the authority, in a matter general in character, as this was, to direct that proper document be prepared.

It was offered (after it had been prepared) by the District Attorney in evidence.

We have not found in this ruling of the court anything inconsist-' ent with the possibility of a fair trial. The trial judge has authority and discretion with which it is not our duty, nor only inclination to interfere, unless it clearly appears that he has acted arbitrarily and without due regard to the rights of the defendant. The complaint of the defendant upon this point, grounded upon the alleged improper suggestion of the court to the District Attorney, is not sufficiently sustained by the facts of record to justify our interposition.

It is true it appears that on the trial of the motion to quash the venire and the indictment, the court “reopened the note of .evidence without a suggestion from the District Attorney.”

It was then that the District A-ttorney offered the order of court, ordering the jury commission to draw a jury for the jury term commencing July 5, 1897, to which the defendant objected.

The reopening of a note of evidenoe (upon a motion to quash), contradictorily with a defendant, and on the day it had been closed, is not in our judgment a good ground for disturbing the verdict. Such reopening is not of sufficient gravity to vitiate the proceedings. The trial judge on the trial of such a motion is not always bound for ■obvious reasons by the strict rules applying when the defendant is placed on his trial before the jury. Of that view the court must have been in State vs. Gonsoulin, 38 An. 462, in which ease a witness, after he had testified on the trial of a motion and the evidence ■closed, was granted leave to return and correct part of his testimony that had been taken down, and the accused was not permitted to reopen the evidence upon the subject of inquiry. Another ground advanced by the defendant to quash the indictment and to set aside the venire is that it does not appear from the proees verbal of the drawing of the venire that it was drawn or summoned to appear at any particular term of court or upon any specific day.

We find, as a matter of fact, that the commission met at the time designated by the trial judge, viz.: on the twenty-fourth day of May, 1897, and drew the number required for service as jurors at the ensuing terms to begin on Monday of July, 1897, and that in the proees verbal the date was left in blank, but the order of the court contained the date under which the commissioners acted.

The date the ensuing term was to begin. The omission was not a fatal irregularity. It was a clerical oversight. It is not charged that any of the acts complained of were committed in fraud of the rights of the accused or that they worked upon him irreparable wrong essential to set aside and annul a venire. Act 99 of 1896.

In the next place it is urged by the defendant that the proees verbal was written in the handwriting of a deputy clerk. The point loses all importanse in view of the fact that the record shows that the whole of the proees verbal was written under the dictation of the clerk.

Similar acts of a deputy clerk were passed upon in two decisions •of this court of recent date. State vs. Johnson, 47 An. 1092; State vs. McCarthy, 44 An. 324.

The deputy, as in the case here, acted under the direction of the jury commission.

This brings us to the next proposition founded upon the refusal of the trial judge to specially instruct the jury (as requested by defendants’ counsel) as follows:

“ Concealment after the act where there was no previous preparation is not necessary evidence of intent.”

The trial judge incorporated in the bill of exceptions his reasons for declining to specially instruct the jury; these reasons are: “It was calculated rather to confuse than to enlighten the jury.”

Further: “If the charge requested means that the concealment' of the body of the deceased by the accused after the killing is not necessarily evidence going to show the criminal intent with which the killing was done, it is not a correct statement of the law.”

Oounsel for accused argued that “ proof” and “ evidence ” are frequently used as synonymous terms and are interchangeable words, and that the instruction requested was equivalent in meaning to the instruction “ concealment of the body after the killing without previous preparation was not necessarily conclusive evidence of a deliberate intent to take life.”

The contention of counsel meets with some support from highly trustworthy source.

“ The word evidence, in legal acceptation, includes all the means by which any alleged matter of fact the truth of which is submitted to investigation is established or disproved. This term and the word proof are often used indifferently, as synonymous with each other; but the latter is applied by the most accurate logicians to the effect of the evidence and not to the medium by which truth is established.” Greenleaf, Sec. 1, Vol. 1.

As relates to “ concealment ” after the act evidence of concealment is admissible, as it goes to show criminal intent, and as such it should be weighed, but it is proper on request to instruct the jury that it does not necessarily constitute proof. It admits of no question.

Concealment after the fact is not proof conclusive of intent to commit murder. For instance, in a case of manslaughter the slayer may seek to conceal the body of his victim without its being an evidence of the previous intent to murder.

We are of the opinion under the circumstances the jury should have been instructed in view of the terms of the original charge: that concealment after the deed was not conclusive proof of intent.

The whole charge appears of record. It was annexed to and forms part of a bill of exceptions. The case in the charge was considered solely from the point of view of murder vel non. No instruction whatever as relates to manslaughter was given to the jury. In closing the charge the following was the language used: “The punishment denounced by law for murder in this State is death, but juries are permitted when they see proper to qualify their verdicts that the punishment is reduced to imprisonment for life at hard labor. So there are three verdicts you might render in this case, viz.: ‘ Guilty as charged,’ which means that the death penalty is imposed; ‘ Guilty with out capital punishment,’ which means that the prisoner would be imprisoned at hard labor for life, and ‘Not guilty.’ ”

In remanding the case for error in matter of the charge we desire to state that there are four verdicts which a jury might render in any case in which the accused is charged with murder — that is, the fourth, guilty of manslaughter.

Under the jurisprudence of this State it is as imperative to give the fourth as it is to give the third instruction to the jury.

We are of the opinion, said the court in State vs. Jones, 46 An. 1398, that on all “trials for murder it is the duty of the District Judge ex proprio motu, without request from counsel; to charge the jury that among the verdicts which they are permitted by law to return under an indictment charging a person with murder is a verdict of manslaughter, as much so as to inform them that under an indictment for murder it is lawful for the jury to qualify their verdict by adding thereto ‘ without capital punishment,’and that it is reversible error in any case that the judge should have failed to so inform them. And if this be so how much stronger is the case where a judge not only fails to give such information, but expressly declares that in the case before him such a verdict would not be applicable.”

The court cited in support of this position State vs. Brown, 40 An. 725, and State vs. Brown, 41 An. 11. Under this view the failure to instruct the jury as stated was not a mere omission to charge. It was a misdirection.

Upon this point the case is absolutely exceptional and entirely sui generis. It does not apply to lesser grades in matter of other crimes charged. It only applies to trials for murder, and is limited in those cases to informing the jury that a verdict of guilty of the crime of the lesser grade, manslaughter, may be found.

It is therefore ordered, adjudged and decreed that the judgment and sentence appealed from be annulled, reversed and set aside as not good in law, and that the verdict of the jury be set aside and the defendant remanded in custody subject to the orders of the District Court of the parish of Tensas.

The Chief Justice takes no part in this decision.

Miller, J. dissents.

On Application eor a Rehearing.

Breaux, J.

On reconsideration of the grounds upon which this-case was remanded we have concluded to adhere to them, and not to grant a rehearing.

The rule which has heretofore been laid down by the decisions of this court applies to cases in which the accused stands charged with murder.

In cases of that character, it is, in our view, the duty of the trial judge to charge the jury that they may return a verdict of guilty of manslaughter, if they should find that he is guilty of manslaughter and that he is not guilty of murder.

It is not left to the trial judge to determine whether the charge of manslaughter is a part of the law of the case; or whether, in other words, the facts call for a charge as to manslaughter.

The matter is left to the jury, who are to be instructed as before stated.

The error being fundamental because of the language of the statute in such a case only; we concluded to remand the case.

The rule is limited exclusively to cases such as the one before us. As relates to other crimes it does not apply. It is in that respect sui generis and does not apply in all cases; but we repeat it applies in cases in which the accused is tried for murder.-

Rehearing refused.


author: Blanchard, J.

text:
    No. 12,563.
    Wm. C. Raymond et als. vs. Edward Conery.
    Upon the organization of the Civil District Court for the parish of Orleans created by the Constitution of 1879 all causes pending in the then existing Civil Courts for that parish were directed by the Constitution to be transferred to the new Civil District Court.
    This invited legislative action to effectuate more fully the constitutional intendment. But none was taken. This failure resulted, ex necessitate rei, in remitting the method of removal to such regulations as the new courts might prescribe, or such orders pertinent thereto, as they might make, guided by the light of precedent and jurisprudence.
    Hence, the supersession of the new courts did not, ipso facto, operate a transfer of the causes pending in the old courts to the new, nor were the records of the suits to be considered as of right, or in fact, filed, eo instanii, in the new courts.
    Something was required bo be done by the parties in interest in the pending causes to bring about their transfer, and until this was done the jurisdiction of the superseding court did not attach.
    Without such action, the papers, or the record of a cause, remained in the hands of the city officials, appointed to their safe keeping, without preserving, after the long lapse of time as in this case, the status of a pending suit.
    The instant case remained thus without action for its transfer for seventeen years, and meanwhile three of the four original parties to the suit had died, and the record was lost. Effort is now made to transfer, revive and substitute the record. This is met by the plea of prescription — held: The cause must be considered as having been abandoned and practically discontinued, and the attempt now made is viewed as tantamount to the bringing of the action anew after discontinuance, and the prescriptions applicable to such action are con•siderd as having not been interrupted. C. 0. 3519*3551.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      W. S. Benedict for Plaintiff in Eule, Appellant.

      Howe, Spencer & Gocke and Bernard McCloskey for Defendant in .Eule, Appellee.
    Argued and submitted January 25, 1898.
    Opinion handed down February 7, 1898.
    Rehearing refused February 21, 1898.
   The opinion of the court was delivered by

Blanchard, J.

Under the Constitution of the State of Louisiana, adopted in 1868, there was established in the parish of Orleans seven district courts known and designated by numbers from one to seven inclusive.

The Constitution of the State adopted in 1879 abolished these courts and substituted in lieu thereof two district courts — one known as the Civil District Court for the parish of Orleans, the other as the Criminal District Court for the parish of Orleans — the former to have not less than five judges, the latter not less than two judges.

The District Courts thus created were subdivided into what are called “ Divisions,” and a judge assigned to each division.

The Constitution of 1879 ordained that, upon the organization of the courts created by the new Constitution, all causes pending in the courts established under the Constitution of 1868 “shall be transferred to the courts respectively having jurisdiction thereof under this Constitution.” Art. 261.

This article seems to have invited legislative action to effectuate more fully its purposes. But the only enactment on the subject was Act No. 29 of 1880, providing for the transfer of causes pending in certain of the old courts to certain of the new courts established by the later organic law, and has no reference whatever to the transfer of causes from the old District Courts of the parish of Orleans to the new courts for that parish created by the superseding Constitution.

This failure of legislative direction for the removal of causes from the old District Courts of the parish of Orleans to the new court supeseding them resulted, ex necessitate rei, in remitting the manner or method of removal to such rules and regulations as the new court might prescribe, or such orders pertinent thereto as they might make, guided by the light of precedent and jurisprudence.

The Constitution of 1879 provided that, in the parish of Orleans,, the new courts established by it should supersede the old courts on the first Monday of August, 1880, and they did so.

But this did not, ipso facto, operate a transfer of the causes pending in the old courts to the new, nor were the papers and records.of the suits to be considered as of right, or in fact, filed, eo instanti, in the new courts. Under the constitutional provision the Legislature might have so ordered it, but the Legislature had remained silent. Under those circumstances something must be done by the parties in interest in the pending causes to bring about their removal from the old courts to the new, in order that the practical jurisdiction of the latter might attach.

The law had made no provision even for the proper custody of the records of pending suits. The clerks of the old District Courts became functus officio on the first Monday of August, 1880, along with their courts (Cheevers vs. Duffel, 32 An. 649), and there was no warrant for the clerk of the new Civil District Court to take possession of the records as' custodian thereof. The matter seems to have been called to the attention of the municipal authorities of the city of New Orleans and the necessity pointed out for some action looking to the safe-keeping of the records pending removal to the new court. The city authorities appointed a keeper of the records.

It appears that the judges of the Civil District Court provided a method by which a party might take the record of a case from the custody of this city official and file it in the Civil District Court. With reference to this, that one of the judges of the said court who sat upon the instant case says, in his reasons for judgment, that upon the organization of the court, shortly after the adoption of the Constitution of 1879, the judges were very soon called upon to consider the status of the cases pending in the civil courts which had been superseded, and whilst the conclusion was reached that the causes had not abated, it was the consensus of opinion that in order to give such causes the status of live cases, in the proper sense of the term, it was the intention of the framers of the Constitution that some action should be taken by the parties in interest, with the view of vesting the jurisdiction of the same in the newly established court. He states, also, it was the opinion of the judges that in the absence of such action, the Civil District Court was without jurisdiction or control over causes pending in the old courts and over the records of such causes, and that these records have been regarded as in the custody of the clerk of the Civil District Court only after they have been transferred upon the application of some party in interest from the defunct courts.

The Legislature having taken no action relative to the causes pending in the superseded courts, nor directed how or in what manner the jurisdiction of the Civil District Court should attach, it was competent for the judges of the latter court to make orders therefor. The Constitution, by investing the Civil District Court with jurisdiction, impliedly conferred the means necessary to its exercise. Prentice vs. Waters, 8 N. S. 522; Thomas vs. Cortes, 6 R. 44; Rhinehart vs. Doswell, 6 La. An. 767.

But the jurisdiction of the superseding court did not attach, nor was the cause transferred unless the action prescribed by the court was taken by the' parties in interest. Without such action the papers, or the record of the cause, remained in the hands of the city official appointed to their safe-keeping without preserving, after the long lapse of time, as shown in this case, the status of a pending suit.

These observations lead to the consideration of the case at bar.

In November, 1879, William 0. Raymond, Theobald Forstall and Andrew Hero, Jr., as liquidating commissioners of the Louisiana Savings Bank and Safe Deposit Company, began an action in the then Fifth District Court for the parish of Orleans against Edward Conery for the recovery of a large sum of money.'

In December following the defendant filed certain exceptions which, in June, 1880, were overruled, and a default entered. Defendant asked and obtained further time in which to make answer, and on July 6, 1880, filed a peremptory exception of no cause of action, a general denial, with reservation of the exception, and prayer for jury.

One month latter the court in which the action was pending ceased to exist, and the present Civil District Court became thereafter the tribunal in which such causes must be prosecuted to final-results.

But no action whatever was taken by any party in interest in the case to do that which was necessary to cause the jurisdiction of the new court to attach. No motion was made to have the case transferred; the record was not taken from the custody of the city official and filed in the Civil District Court; no order and no appearance whatever was made or entered, or attempted, in the new tribunal.

The situation remained thus from the time (August 1, 1880) when the old Fifth District Court was abolished down to April 1, 1887, a period of nearly seventeen years, when an attempt was made to transfer the case to the Civil District Court. The cause itself was then only a memory. The record had disappeared, was lost and could not be found, and of the four original parties to the suit — three plaintiffs and one defendant — all were dead save one.

On the day last mentioned, counsel representing Andrew Hero, Jr., surviving liquidating commissioner of the Savings Bank, and sole survivor of the parties to the suit, appeared in the Civil District Court, suggested that this suit was instituted in the former Fifth District Court, that issue had been joined, that all the parties had died save himself, and that he alone now represented the bank. He averred that William H. Byrnes was the legal representative of Edward Oonery, deceased, and asked that he be made party defendant, and that the case be placed upon the docket and assigned for trial.

On the same day he filed a second plea suggesting that the record of the case was lost, and took a rule on Byrnes, administrator of Oonery, deceased, to show cause why the lost papers should not be substituted by copies, and a record made up.

The administrator, appearing only for that purpose, filed an exception to the proceedings taken, or any other looking to the revival of the cause, on the ground that the Fifth District Court having been abolished, and no effort having been made to remove the case to the-Civil District Oourt for a period of more than sixteen years, the-cause itself had abated, been abandoned and perished; and he-pleaded against the proceedings and demand of plaintiff the prescription of one, two, three, four, five and ten years. He averred that the laches of plaintiffs had disentitled them to proceed with the -cause, and that it would be grossly unjust and inequitable for any proceedings to be allowed, the defendant having died two months-before the effort to resurrect the case was made, and his testimony not being obtainable.

This exception was maintained, the rule discharged and the proceedings dismissed. Plaintiff appeals.

His counsel presents in argument and brief this: “That the sole-question to be determined is: Does Article 21 of the Code of Practice state the law governing the case, it being proved and admitted the deaths occurred between the plaintiffs on the one side and defendant on the other, after issue joined(Italics his.)

We have given careful consideration t.o the reasoning advanced in support of his case, but have not been able to concur in his view of it.

Our conclusions are that Art. 21 of O. P. does not apply. It is not a question of the abatement,-ret non, of the action by the death of one-of the parties.

The question is, is this action to be considered as having been-abandoned, has, this suit legally perished by the long lapse of time,, has the breath of life been suffered to go out of it entirely by the neglect and laches of the parties thereto?

This question would be equally pertinent were all the original parties alive at this time. It may be conceded that if the suit could,. under the circumstances here presented, be revived were Oonery alive, so it may be now that he is dead. The question presented is, therefore, more far-reaching than any covered or contemplated by C. P. 21.

We pass no opinion of what would be the effect of permitting a cause to remain absolutely dormant during seventeen years in an existing court. It is not necessary in this proceeding to decide whether such action could be revived and proceeded with, or not; whether it had perished by abandonment, or not; whether it was prescribed against, or not. It suffices, in the instant case, that the suit under consideration has not existed as an actuality, a veritable action or cause, upon the docket of any court for the last seventeen years. It had been filed in a court that had existence, but which, nine months later, ceased to exist, from which time to April 1, 1897, nothing whatever was done to keep it alive, to give it the semblance of reality, of tangibility, by transferring it to another court capable legally of receiving it. It has been permitted to die from sheer inanition, to perish from exhaustion; three of the original parties have died along with it; and this attempt to revive it in another court, after seventeen years have passed, might be likened to an effort to galvanize a corpse.

The long abandonment of this case, failing to exercise the rights of the action after filing the suit, permitting the papers constituting its record to remain among the archives of a defunct court in the hands of a custodian not an officer of any court until lost, can not reasonably be viewed in any other light than as a practical discontinuance of the action. C. C. 3519, 3551, 3530; C. P. 491.

And this effort now to revive in an existing court of appropriate jurisdiction is tantamount to the bringing of the action anew after its discontinuance (C. P. 492), and the prescriptions applicable to such action must be considered as having not been interrupted. C. C. 3519, 3551.

The demand must certainly, under the facts of the case, be considered as having been voluntarily and intentionally abandoned, and prescription not interrupted. Elliott vs. Brown, 13 An. 579; Wilson vs. Marshall, 10 An. 327.

Under Art. 2247 of the Oode Napoleon, the interruption of prescription is considered as not having occurred if the plaintiff discontinue his demand, or fail to prosecute his suit. Art-. 3519 of our Revised Civil Code, while not a liberal copy of Arb. 2247 of the Napoleonic Oode, is its reproduction substantially. The article of our Code uses the word “ abandons ” for “if he fail to prosecute,” as found in the other Code. The language of the French text is: “ S’il laisse périmer l’instance.” So that “abandons,” as used in the article of our Oode, may reasonably be construed, so far as applicable to the facts of the case, as having the meaning of failing to prosecute.

Judgment affirmed.

Miller, J., recused.


text:
    No. 12,365.
    J. D. S. Newell vs. B. S. Leathers et al.
    Jurisdiction sustained — right of possession of certain premises being at issue,, with oath of plaintiff that this right is worth more than two thousand dollars, and that he would be damaged exceeding that sum if defendant is not restrained from invading same.
    Proportionate area or acreage system for division of alluvion between adjoining riparian proprietors excluded.
    Each proprietor of original tracts takes between the lines oí his new frontage on the water-course measured back to the old frontage.
    Course or direction of side lines of no consequence. Extent of old frontage on the water-course determines extent of the new frontage on the water-course.
    A PPEAL from the Twenty-third Judicial District Court for the Parish of Tensas. Dagg, J., Eighth Judicial District, in place of Tullís, J. recused.

      Wade B. Young for Plaintiff, Appellant.

      Elam & Dale for Defendants, Appellees.
    Argued and submitted January 21, 1897.
    Opinion dismissing appeal handed down March 1, 1897.
    Rehearing granted March 10, 1897.
    Argued and submitted on rehearing June 4, 1897.
    Opinion handed down December 28, 1897.
    Second application for rehearing refused February 21, 1898.
   On Rehearing.

The opinion of the court was delivered by

Blanchard, J.

While there are allegations of actual possession by both parties, judging the character of the action by the whole pleadings, it does not appear to be solely a possessory action having for its object, on part of plaintiff, to be maintained in the possession of certain premises, or, on part of defendant, to be quieted in the possession of the premises he describes.

The right of possession in virtue of certain contracts of lease and purchases, is also put at issue.

Plaintiff claims the right of possession of the entire alluvion in front of the town of St. Joseph from the edge of the pond, in front of the public levee, to the present margin of the Mississippi river.

He avers this right to be worth more than two thousand dollars, and that he would be damaged in an amount exceeding that sum if his right of possession is not vindicated.

Defendant, in turn, asserts his own right of possession of part of the premises in dispute, and prays that this right be recognized and enforced.

The Mississippi river once ran along the immediate front of the town of St. Joseph. Gradually the condition changed. The river slowly receded until now the water line is more than a half mile from the town. In front of above and below the town an extensive alluvion or batture has formed. Possessing under certain leases and other contracts, plaintiff established, some years ago, a public landing and warehouse on this batture. This is the landing that steamboats, transporting merchandise and other commodities and passengers to and from St. Joseph, use. Heretofore it has been a monopoly in the hands of the plaintiff, who has derived and still derives large revenues from it.

Defendant Leathers, who owns and navigates boats upon the river, seeking to establish a-landing for his boats in front of the town, acquired by purchase and lease certain rights in, to and on the batture. He begun the work of constructing his landing by driving some piles along what he claimed as his portion of the river front. Whereupon plaintiff instituted this suit and caused writs of injunction to issue prohibiting the work.

It will be thus seen that the real contention between the parties is a landing for boats. Plaintiff seeks to preserve in himself the exclusive right of maintaining a public landing on the batture in front of the town. Defendant resists this exclusive privilege, and attempts to establish another landing along the river front.

It thus appears that there is nothing in dispute in this controversy except the right of defendant- to establish a public landing on the land described in his answer, and plaintiff attests under oath that if defendant is allowed this right, his (plaintiff’s) public landing will be rendered comparatively worthless, and he will be damaged exceeding the sum of two thousand dollars.

In this view of the case, this court has jurisdiction. 30 An. 798; 31 An. 205; 46 An. 645; 47 An. 863.

The question presented on the merits is simple.

Was the alleged trespass committed on premises held under lease by plaintiff? On whose front line were the two piles driven by defendant?

If on that of the premises acquired by defendant by purchase from R. H. Snyder, or by lease from Mrs. Oarrie M. Davidson, then, obviously, plaintiff’s case must fail, for it is not pretended that he had the possession, or right of possession of such premises.

Plaintiff’s contention is that that part of the river front of the batture where the piles were driven is covered by the lease which was executed to him by Mrs. Jennie Levy, and that the Snyder and Davidson tracts held by defendant have no frontage on the river.

Defendant contends that the Snyder, Davidson and Levy tracts of batture all front on the river, and that the three together give a continuous frontage of about four hundred feet. These tracts lie between St. Joseph and the river. It is further contended by defendant that the piles were driven by him either on the Snyder or Davidson tract.

The town of St. Joseph is situated between the Panola plantation on the upper side and the Duck Pond plantation on the lower side.

Plaintiff’s public landing and warehouse is located on the river about opposite the middle front of the town, and about midway between the lower boundary line on the batture of Panola and the upper boundary line on the batture of Duck Pond.

The batture tract on which this landing is was leased by plaintiff from the parish of Tensas. Then next above lie tracts or lots of batture fronting on the river owned by Moore, Young and the Farrar estate. Then comes the Jennie Levy tract.

Plaintiff claims the possession or control of all of these tracts under his contracts.

Next above the Levy tract is the Davidson tract or lot, and then the Snyder tract — both claimed by defendant.

This brings us to the Panola line.

These several tracts of alluvion were accretions enuring as riparian rights to the owners of the soil along the original front of the town of St. Joseph.

The United States survey was made in 1828. At that time the river line, or front of the tract of land upon which St. Joseph was afterward located, was the same length substantially- — -about thirty chains —as is the new river line of the batture in front of the town at the present time. Thus we have, practically, the same new river front for each riparian proprietor as the old river front gave, and, therefore, by lineal division each proprietor will have the same measure of front on the new line as he had on the old.

To adjust the contentions of the several riparian proprietors in this way accords with the rule laid down by the law for the measurement and division of alluvion.

The language of 0. 0. 516 is free from ambiguity: “If an alluvion be formed in front of the property of several riparian proprietors, the division is to be made according to the extent of the front line of each at the time of the formation of the alluvion.” (Italics ours.)

The course, or bearing, or direction of the side lines of the tracts or lots of land in front of which alluvion is formed, is, therefore, of no consequence in the division of the batture formed subsequent to the acquisition of the tracts.

What is of consequence is the extent of the old frontage of the tracts on the water-course, and from this is to be determined the extent of the new frontage on the water-course.

This excludes the idea of a proportionate area or acreage system of division between the several tracts fronting on the alluvion to be divided. Each proprietor of the original tracts takes the quantity of alluvion that may be between the lines of his old frontage on the water-course measured forward to the new frontage. The lines by which the new frontage is reached may be parallel, or convergent, or divergent, according as the extent of the newly formed water line may be the same in the one case, or less in the other, or greater in the third, than the ancient water line of the tracts. Duranton, Vol. 4, No. 421; Fuzier-Herman, Code Annotés, Vol. 1, p. 749, Nos. 49, 50; Baudry-Lacantinerie, Préces Droit Civil, 3d Ed., p.773; Deerfield vs. Arms, 17 Pick. (Mass.) 41; Batchelder vs. Keniston, 51 N. H. 496; Jones vs. Johnson, 18 How. 150; Johnson vs. Jones, 1 Black (U. S.) 209; Kehr vs. Snyder, 114 Ill. 313; Armstrong vs. Wheeler, 52 Conn. 428; Crandell vs. Allen, 118 Mo. 403; Gray vs. Deluce, 5 Cush. 9, 12, 13; Porter vs. Sullivan, 7 Gray, 443; Muller vs. Hepburn, 8 Bush (Ky.), 326; Gould on Waters, Secs. 162, 163 (2d Ed.); Am. and Eng. Ency. of Law, p. 477 (2d Ed.).

“ This mode of distribution,” said the court in Deerfield vs. Arms, supra, “ secures to each riparian proprietor the benefit of continuing to hold to the river shore, whatever changes may take place in the condition of the river by accretion, and the rule is obviously founded in that principle of equity upon which the distribution ought to be made.”

We do not interpret Delord vs. City, 11 An. 699, cited adversely, as establishing a different rule.

R. H. Snyder owned lots or tracts of land in the town of St. Joseph, fronting on the old river line. Alluvion formed along this front; and in 1865 Snyder sold to Jas. Friendship a lot on the east or river side of the levee in front of his town property. This lot was of small dimensions, some sixty feet wide by a depth of one hundred and forty-three feet toward the river, but far from reaching the river.

On the north or upper side it bordered lands of the Panola plantation on the river side of the levee. The sale left in Snyder still a batture frontage on the old river line, as well as the tract of batture between the lot sold to Friendship and the river. Then in 1872 he sold to Bernard Levy a lot or piece of land commencing at the southwest corner of the lot sold to Friendship, thence running in an easterly direction along the southern line of Friendship’s lot to its extreme eastern boundary, thence on to the margin of the river at low water, thence down the margin of the river to the northern boundary of batture lands owned by the Misses Murdock, thence westerly along the Murdock line to the levee, thence up the levee to the place of beginning.

By the sales to Friendship and Levy, Snyder may have disposed of all the batture he owned lying opposite and immediately in front of his original St. Joseph lots, but he still had left the piece of batture on the east or river side of the Friendship lot. This, as we understand it, he sold in March, 1895 to the defendant Leathers, less, perhaps, parts of it previously sold to Beaumont and Woods. In the act of sale to Leathers this ground is described as bounded on the east by the river, and on the south or lower side by batture lands of Mrs. Oarrie M. Davidson.

This leads to the tracing of the Davidson acquisition.

Bernard Levy, who bought from Snyder, having died, his widow, Mrs. Jennie Levy came into possession of his estaie. She added to her holdings of batture land in front of St. Joseph by purchasing a tract from A. F. Brown. Then, in 1888, she sold to R. S. Emerson a part of what she owned. The description is that certain lot or piece of ground bounded on the north by a line beginning at the southwest corner of the Friendship lot and running in an easterly direction “ parallel to said line” (what line?) to the river; on the east by the river, on the south by a line commencing ac a point mentioned on the public levee and running east, southeast to the river, and west by the levee. It is stated in the deed that the property sold has a frontage on the levee of about sixty-eight feet. What its m er line is is not stated, but it is distinctly described as bordering on the river.

Emerson, who bought from Mrs. Levy, died, and Mrs. Susan A. Brown was recognized as his sole heir at law.

She sold the tract just described to Jos. Moore in 1890. Moore donated it to his daughter, Mrs. Carrie M. Davidson, and she, on August 3, 1895, leased it to defendant Leathers, for a term of five years. A few days before she leased to defendant, to-wit: on July 29, 1895, she secured from Mrs. Jennie Levy a corrected description of the tract, In this conveyance it is set out that the description in the former deed to R. S. Emerson, executed in 1888, is erroneous and ambiguous, in this: that three directious or courses are given, each inconsistent with the other. Mrs. Levy, therefore, in order to correct same, declares it to have been her intention when she sold to Emerson to fix and define the south line of the tract as alone starting on the public levee at the point mentioned in the first conveyance and running to the river in a direction parallel with the line between the lands of the vendor and Robert Murdock outside the public levee.

These several tracts of alluvion being adjuncts of the original holdings on the ancient line of the river were entitled to go to the new river line for frontage, and to have there the same frontage that the original tracts or lots had on the ancient line, for, as we have seen, the river frontage of the two lines are practically equal.

The vendors of these several tracts of alluvion intended to convey -and did expressly convey to the river margin, and this intention, purpose and object can not be defeated by running the lines on courses that would render impossible a frontage on the river. A river front was what the vendees stipulated for; it was the object they had in view in thus acquiring property valueless, or nearly so, without such frontage.

To sustain the contention of plaintiff as to these lines would run the lines of the Snyder and Davidson tracts, and part of the Levy tract, on to the batture in front of the Panola plantation and thus defeat entirely a river frontage for the first two tracts.

So, too, to sustain plaintiff’s contention that the alluvion must be divided by the area or acreage rule of distribution would run the lines of the tracts mentioned on to the batture that must be held as appertaining to the Panola plantation. To take from the Panola batture to make up acreage quantity for lots fronting on the ancient line of the river below the Panola southern boundary would lead to an absurdity. Such a rule of measurement and division, if carried out, would defeat a frontage on the river, not only for the Snyder and Davidson tracts, but for the Panola plantation as well, though the latter had a front of miles on the ancient river line, and there is the same length of new river line in front of the plantation. St. Louis vs. Rutz, 188 U. S. 226.

The last survey made of this alluvion, by order of the lower court, showed the piles driven by defendant to be on the front of the tract he had acquired from Snyder. Plaintiff does not hold this tract under lease or other contract. The evidence discloses he endeavored to purchase the tract from Snyder just prior to its acquisition by defendant. He must have then believed the tract had a river frontage, or else he would not have desired it. He had no use for it except that it fronted on the river, and was necessary to enable him to maintain his monopoly of the public landing.

So, too, in 1895 he offered to lease the batture tract of Mrs. Oarrie M. Davidson. This was after the present suit was filed. What use did he have for this tract except that he feared it bordered on the river, and was necessary to him in sustaining his exclusive right to a. public landing on the town front?

The rule adopted by the surveyor for his measurement and division, which he says he obtained from Hodgman’s Work on Surveying is the one long recognized by the law, and precisely laid down in Deerfield vs. Arms, 17 Pick. 41.

As defendant was proceeding to erect a public landing on his own. premises, it follows that plaintiff has no case.

It is not necessary to decide other questions of law raised by the-pleadings.

Certain questions of practice are raised and insisted on by plaintiff’s counsel in argument.

One is a motion to quash the jury venire made by plaintiff, andi the other is the refusal of the court to continue the ease on application of plaintiff.

His counsel excepted to the rulings of the court and reserved bills of exception.

With regard to the refusal to continue the case, we can not say the trial judge erred. The ease had already been several times continued, and much delay had ensued.

When the last motion to continue was overruled the case had then been on the docket about fifteen months — a long time for an injunction suit to remain untried in the court of the first instance.

The granting or refusal of motions to continue rest largely in the sound discretion of the court below and its ruling in regard thereto-will not be disturbed unless clearly erroneous. In the last application for continuance defendant agreed to admit that the plaintiff, who was the witness absent because of illness, would testify to the statements set forth if present, and thus the evidence was gotten into the record.

With regard to the motion to quash the venire, it suffices to say we do not think the grounds urged sufficient. Besides, the plaintiff, after having prayed for a jury, waived trial by jury and submitted the case to the court.

For the reasons herein assigned it is ordered that the former decree of this court, dismissing the appeal for want of jurisdiction is set aside, and that the judgment appealed from be affirmed with costs.

Nicholls, C. J., takes no part in this decision, because of absence when the case was argued.


text:
    No. 12,745.
    State ex rel. John R. Griffith vs. Judge R. R. Reed and W. Kennedy.
    •The preponderance of authority establish that certiorari lies if notice is not given to parties before adjudicating upon their rights.
    QN APPLICATION for a Writ of Certiorari.

      George E. Williams, Curator.

      Hughes & Favrot for Relator.

      •Olay Elliott for Respondents.
    Submitted on briefs February 23, 1898.
    Opinion handed down March 7, 1898.
   The opinion of the court was delivered by

Breaux, J.

The relator made application for a writ of certiorari to have the record brought up in the case of Charles Riette vs. John R. Griffith, and to have the proceedings in both the District and Justice Courts declared a nullity. The plaintiff in the case sued the defendant, an absentee, for forty dollars for material furnished and work done upon Claiborne Hotel, in St. Tammany parish. A writ of attachment issued against the defendant as owner of the hotel .and of one acre of ground on which it is situated.

A curator ad hoc was appointed and citation issued properly .addressed to George B. Williams, curator ad hoc, and service was made by handing copies of the papers to him.

The property had been seized and attached prior to service and an inventory was duly made.

The constable failed to affix a copy of the citation and failed to affix a copy of the writ of attachment on the court house door.

In the justice court, after an answer had been filed by the curator ad hoc, a judgment was rendered in favor of the plaintiff. From .this judgment an appeal was taken by the curator ad hoc to the Distriefc Court. On the appeal the curator interposed an exception on the ground that no service had been made by posting the papers on the court house door. It does not appear of record that any other plea was filed in the District Oourt.

The constable made a written return on the writ of attachment, but made no written return on the citation at all. Judgment was rendered against the defendant, and the cause was remanded back to the lower court for execution. The foregoing are the facts disclosed by the record, save that in addition the constable endeavored to supplement his return by an ex parte affidavit that he had affixed a copy of the citation on the court house door, on the day of the trial, but prior to the trial.

The issues on the application for a rehearing grew out of the alleged illegality of the service. The judge of the District Court and the justice of the peace were made respondents. In our judgment the return of the officer (the sheriff or constable) in each case should make proof of the manner in which he has executed the writ. Unless he makes answer, by written statement, informing the court of service, the court is without any basis for further proceedings. The return itself must be in writing. It may be amended prior to judgment, but not after judgment has been rendered.

With reference to the writ of attachment, the constable is required to serve the citation on the defendant; if he is an absentee this officer must affix a copy of the citation on the door of the court house. The return does not show that any such a service was made. We are constrained, under the law, to hold, in case of an absentee, that unless the service be made in the manner indicated, the defect makes null the proceedings subsequent. The article touching attachment in cases before the justices of the peace, is substantially similar to Art. 254 of the Code of Practice. Both as relates to the return are silent. Yet, in construing the latter, this court has always held that the return of the officer must show that due service has been made by posting as required. Cire vs. Monteuse, 27 An. 79, and'the cases cited in that decision.

Under another article of the 0. P. than the one to which we have just referred, in all suits “the constable, after serving the citation on the defendant shall return to the justice the date and the manner of the service.” This as relates to return, we construe as applying to all suits before the magistrate courts and renders it necessary that a return be made on all citations. In this case, there was no return possible.

No service had been made as required at the date that the judgment was rendered. We can not give the least effect to any action subsequent to-the judgment in matter of the service of a citation.

Our attention was by respondents drawn to the fact that the case was tried in the District Court after the curator ad hoe had answered and trial on the merits in the justice court. The answer of the curator ad hoe in the court of the first instance was not a waiver of citation or of any of the rights of the defendant in that respect. When the case was before the District Court it was in season to plead; despite the curator’s answer in the court of the justice of the peace; that the defendant could not be held bound by any proceeding, as it did not appear that he had been cited.

In our view the judgment of the District Court and the judgment of the justice of the peace are null and void and we so declare them to be.

The action is not to be dismissed nor the attachment dissolved.

The constable, if service was made as suggested in his ex parte affidavit, will have to make a return, showingthat service was made by affixing copies of citation on the court house door as required by Art. 1120 of the C. P., or if no such service has heretofore been made he will have to make it and a proper return.

It is therefore ordered, adjudged and decreed that the rule nisi which issued in this case be made peremptory to this extent; the judgments above referred to are decreed null and void.

It is further ordered and adjudged that the suit, demand and writ of attachment be reinstated on the docket of the Justice of the Peace Court of the Third ward St. Tammany parish, and proceeded with according to law.

Watkins, J., dissents.