author: ELLIOTT, J.

text:
    No. 381
    First Circuit
    NEW ORLEANS FUR EXCHANGE, INC. v. LEVY ET AL.
    (January 9, 1929. Opinion and Decree.)
    (March 6, 1929. Rehearing Refused.)

      C. A. Blanchard, of Morgan City, attorney for plaintiff, appellee.
    C. J. Boatner, of Franklin, attorney for defendants, appellants.
   ELLIOTT, J.

New Orleans Fur Exchange, Inc., claims $548.50 of Mrs. M. L. Levy, wife of W. J. Levy, as a balance due on account; alternatively and in case the amount is found not to be due by Mrs. Levy, the claim is then for judgment against W. J. Levy.

The account sued on is marked “Exhibit A” and is annexed to and made part of the petition.

The plaintiff alleges that the account was made up and furnished to it by W. J. Levy. That Mrs. M. L. Levy has been engaged in the business of buying and selling furs and pelts for a number of years, conducting and carrying it on through her husband, W. J. Levy, as her agent with full and plenary powers to buy, sell, make contracts, agreements, draw moneys upon her account, and deposit in her name and to her account all moneys received from sales, contracts or agreements. The petition alleges an agreement between plaintiff and W. J. Levy entered into in regard to buying and selling fur and whereunder petitioner furnished a certain sum of money to said Levy with which said Levy was to purchase fur and ship same to petitioner for re-sale, and as to which petitioner and said Levy were to share equally in the profits.

Peremptory and dilatory exceptions were filed by the defendants, all of which were overruled or referred to the merits. None of them were urged by defendants in their oral arguments; neither are they referred to in their briefs. We therefore look on them as having been abandoned.

Mrs. Levy denies all the allegations in plaintiff’s petition. She avers that she knows nothing about any dealings between plaintiff and her husband and that if same were had they were not for her account and she has no interest therein.

W. J. Levy denies the indebtedness alleged against him. With reference to plaintiff’s allegations about furnishing him money for the purpose of buying and selling fur, he admits an agreement between the plaintiff and himself on the subject, but alleges that it was between the plaintiff and himself personally, and not, on his part, as agent for his wife. He alleges that ¡plaintiff did not keep the agreement and deals at length with what he claims the plaintiff did and did not do under it; violating it, etc. We find that the subject matter of this agreement has no bearing of consequence on the litigated question in the case. It is therefore put aside as an irrelevancy.

The indebtedness which the plaintiff claims is clearly established. The only contestable question is, whether it is due by Mrs. M. L. Levy or by W. J. Levy. On this subject the evidence shows that Mr. and Mrs. Levy are separate in property by judgment rendered many years ago. It is also shown by her testimony that she inherited from her people some time in the past, date not stated, between five and eight hundred dollars. But according to the evidence, within the last several years past, immovable property has been acquired by purchase in her name, the value of which is not stated, but worth undoubtedly as much as twenty thousand dollars, all of which was purchased by W. J. Levy in the name of M. L. Levy, his wife. The property would sometimes be paid lor in cash, but generally there would be a small cash (payment and the balance of the purchase price would be evidenced by mortgage notes executed by Mrs. M. L. Levy payable at future dates, and secured by mortgage and vendor’s privilege retained on the property.

A few years back he purchased a boat called the “Emma Louise,” taking his title in the name of M. L. Levy. This boat is used for any purpose for .which it may be needed; but according to the evidence the purpose for which it was bought and the main use to which it is and has been applied is the business of buying and selling fur, carried on by W. J. Levy.

The evidence shows that M. L. Levy is not and has never been engaged in business of any kind. But W. J. Levy has been engaged in the business of buying and selling fur for many years. Pie buys and sells fur and does nothing else. According to the evidence, when the time of the year approaches for the business to commence Mrs. M. L. Levy executes a mortgage on the immovable property in her name in favor of the bank. In that way the capital needed is obtained and taken in charge by W. J. Levy. He deposits it in the bank in the name of “M. L. Levy, per W. J. Levy.” As cash is needed for the purpose of the business he draws it out by means of checks drawn and signed “M. L. Levy, per W. J. Levy.” Whenever he makes a sale of fur he deposits the amount received in the bank to the credit of this account. There is no property of any kind, bank account nor anything else, carried in the name of W. J. Levy. Everything, the bank account and all the property, is in the name of M. L. Levy. The property bought for cash was paid for by checks drawn by W. J. Levy signed “M. L. Levy, per W. J. Levy.” The mortgage notes executed by Mrs. M. L. Levy were all taken up and paid by W. J. Levy out of the bank account kept as above stated, and by means of checks drawn in the way above mentioned. It was the only account kept. Th'e rents and revenues of the houses and property in the name of Mrs. Levy were deposited in that account. The family expenses are paid by W. J. Levy with money drawn from it in the same way. If Mrs. Levy drew a check, which she did not often do, it was drawn by her personally but paid out of the same account.

The situation and the evidence seems to indicate that W. J. Levy and his wife, the wife of course acting under the guidance of her husband, have evolved a dual method of doing business, whereby all the profits made by him in buying and selling furs become the business of M. L. Levy. ■ It is all placed to the credit of that account and invested in that name, but the debts of the same business are due by W. J. Levy, and as there is nothing in his name, the creditors can do nothing.

The account sued on evidences a debt contracted by W. J. Levy in his business of buying and selling fur and is based on moneys obtained by him from plaintiff under the promise that fur was about to be shipped to cover the amount obtained, but which was withheld and not shipped. The account was made up by D. M. Levy, son of defendant, and handed to two of plaintiff’s officers who had come to Morgan City to see W. J. Levy about his failure to ship as promised. When the account was handed to the plaintiff’s agents, W. J. Levy promised to send a check the next day to cover the balance due, but did not do it. W. J. Levy and his son, D. M. Levy, claim that the promise to send the check was conditioned on plaintiff’s promise to send a statement showing the price of some fur which plaintiff had received from defendant and had sold, and in which W. J. Levy had an interest. The plaintiff’s two agents deny that the promise was so conditioned. We find four witnesses to the promise and only two in support of the condition. To our mind the promise is proved but the condition is not established.

It is defendants’ main contention that the debt sued on must be regarded as due by W. J. Levy. We find that the amount is due the plaintiff on account of the fur business carried on by W. J. Levy for the benefit and profit of M. L. Levy. That the money obtained from the plaintiff, and which constitutes the indebtedness in question, was deposited in the bank to the credit of “M. L. Levy, per W. J. Levy.” That W. J. Levy, in depositing the credits of the fur business in the account, and in the constant use of it, as agent, is in fact the duly accepted and accredited agent of M. L. Levy in all business matters connected with the account, and which as stated, is supplied with funds and kept going by the business conducted by W. J. Levy.

We therefore find that M. L. Levy is liable for the amount due the plaintiff. There was judgment against her in the lower court and we think properly so.

Judgment affirmed. The defendants and appellants to pay the costs in both courts.


source: Caselaw Access Project

author: REYNOLDS, J.

license: Public Domain

text:
    No. 3406
    Second Circuit
    HARRIS ET AL. v. GEORGE W. SIGNOR TIE CO., LTD., ET AL.
    (March 12, 1929. Opinion and Decree.)
    William M. Pollock, of Mansfield, attorney for plaintiffs, appellees.
    Parsons and Colvin, of Mansfield, attorneys for defendants, appellants.
   REYNOLDS, J.

In this action the court is called upon to determine whether the plaintiffs or the defendants are the owners of certain timber on certain described lands. Various acts of sale and a judgment and an act of partition, all purporting to affect all or some of the timber in controversy, were introduced in evidence and are not in the record before us. The court should not consider the effect of such instruments filed in evidence when they are not in the record. There is no suggestion that appellants are at all to blame for their omission from the record. However, the record is incomplete. Under such circumstances it is the duty of the court to remand the case to the District Court for the completion of the record.

State ex rel. Continental Supply Co. vs. Fontenot, 152 La. 912, 94 So. 441.

It is therefore ordered that the case be remanded to the District Court to the end that the record may be completed.


text:
    No. 405
    First Circuit
    FIRST BAPTIST CHURCH OF COVINGTON v. JACKSON ET AL.
    (March 6, 1929. Opinion and Decree.)
    Morgan and Simmons, of Covington, attorneys for .plaintiff, appellee.
    Miller and Heintz, of Covington, attorneys for defendants, appellants.
   ELLIOTT, J.

First Baptist Church of Covington, Louisiana, appearing and acting through Alex Showers, George L. Wallace, Ed Obleton, Robert Tyson and Estelle Cole, as trustees, and twenty others as members, brought suit against F. P. Jackson, Granville Moore, Phillip Landaugh, Soloman Finn, Elizah Geddings, Isaiah Daniels, Ernestine Rapies and Henry Hoggins. It prays for judgment against them, enjoining and restraining them from disposing, selling or interfering with its use of Lot No. 9 of Square No. 2701, situated in the town of Covington, Louisiana; acquired by First Baptist Church March 2, 1898, from Covington and St. Tammany Land and Improvement Company, by title recorded in Book S, p. 708, of the conveyance records of the Parish of St. Tammany, and for damages against them in solido for $3000.00.

The plaintiff alleges that the said defendants, acting and proceeding under a, pretended resolution of alleged members of plaintiff, which they each knew to be false, fraudulent and illegal, have undertaken to destroy and demolish the church erected on its above described premises by the plaintiff corporation many years ago. That said parties, acting under said resolution, have entered into a conspiracy to destroy the church, sell the lot upon which it was constructed, and in fact will attempt to sell and transfer same and thereby deny to its members who have incurred their displeasure, the right to worship therein.

That said parties proceeding - as aforesaid have torn down and removed said church building and converted the lumber and material to their own use and purposes. That their actions and movements constitute a wilful trespass upon and against the rights of petitioner and the members thereof.

Four of the members named by the plaintiff in the petition appeared in court before any action was taken thereon, and declared that their names had been used therein without their knowledge or consent. Their names were thereupon stricken out of the petition.

Ernestine Rapides, sued as Ernestine Rapies, Granville Moore and Henry Hopkins, the latter sued under the name of Henry Hoggins, appeared and for answer to plaintiff’s demand, claimed to have had nothing to do with the acts charged in the petition, and to know nothing about same, and for lack of information sufficient to justify belief as to the allegations from 1 to 9, inclusive, they ea'ch denied same; except that Henry Hopkins, further answering, acknowledged that he had, at the request of Phillip Landaugh, Soloman Finn, ■ Elijah Geddings, Isaiah Daniel and Leon Washington, deacons of plaintiff, assisted in demolishing the building.

F. P. Jackson, Phillip Landorf, sued as Phillip Landaugh, Solomon Finn, Lije Geddings and Isaiah Daniel, for answer denied that Alex Showers, George L. Wallace, Ed Obleton, Robert Tyson and Estelle or Estil Cole, named in the petition as trustees, were trustees or deacons or officers of any kind of First Baptist Church. They further denied that the persons named in the petition as members, were members of said church, except Ed Obleton, Ada Obleton, Ada Crockett and Pauline McCoy, called in the petition Pauline McCayle. They also denied that plaintiffs or any of the persons named in the petition as supporting the action, had the legal right to bring the suit in question, as trustees or officers or members of First Baptist Church, or in behalf of said church.

They allege that defendant F. P. Jackson is and was the pastor of First Baptist Church, and that W. McCarthy Williams, Phillip Landorf, Lije Geddings, Isaiah Daniel, Leon Washington, Soloman Finn and Estil Cole are and were plaintiff’s deacons at the time mentioned. That at a conference or meeting of the members on February 21, 1927, duly called and held, a resolution was adopted authorizing the pastor and deacons to arrange for the purchase of a new site, the erection of a church building and to erect such buildings, demolish the old building and use the material therein in the construction of a new church. That they, with McCarty Williams and Leon Washington are the only persons who have authority to bring suit in the name of, for the benefit of, or in behalf of First Baptist Church and that (plaintiffs are wholly without right or legal or religious authority to sue in the name of -or in behalf of said church, and should be prohibited from doing so.

They pray that plaintiff’s demand be rejected; that they be prohibited and restrained from claiming to be the First Baptist Church of Covington, Louisiana, or from taking any action in the name of said church, and from claiming or pretending to be officers of said church, etc.

In an amended and supplemental answer they allege that a meeting was held under the direction of Hon. Wallace M. Poole, mayor of Covington, on December 2, 1927, for the purpose of settling the dispute which had arisen in the church on the subject of tearing down the old building, selling the site, purchasing a new one and using the material of the old building in constructing a new church on the new site. At this meeting there were present about twenty-eight members of the congregation; that twenty-one of them voted in favor of the action of the pastor and deacons, in the matter, and seven against it. That thereupon the May- or declared and decided that the action of the pastor and members was ratified and approved by the congregation and should stand as an action of the congregation. That many of the plaintiffs were present at and voted in said meeting and those who did so, were estopped from bringing this suit. That the names of the plaintiffs who participated in said meeting would be shown upon the trial.

That the government of a Baptist church is by the members thereof and that the action of a majority is binding upon the whole. That therefore the action of the members at said meeting before the May- or had finally settled all the questions attempted to be raised by the petitioner herein.

The plaintiff remitted, before the trial, all claim for damages above $1900.00.

Judgment was rendered in favor of First Baptist Church of Covington, Louisiana, and against the defendants, enjoining and restraining them from selling the lot in question with the buildings and improvements thereon, and from interfering with the use of same by plaintiff, but plaintiff’s demand for damages was refused as in case of non-suit.

The defendants have appealed.

Neither side has filed briefs.

The record shows that the First Baptist Church of Covington, Louisiana, was incorporated August 3, 1907, under Section 677, (amending Act 45 of 1878) for religious purposes, by charter bearing date August 3, 1907. The Act 254 of 1914 is therefore not the governing law. Plaintiff’s powers are such as were conferred by the Revised Statutes, Section 680, and Civil Code Arts. 433 and 434. Under the law and under its charter the (plaintiff received and has power to buy and sell real estate, to sue and be sued, and to make rules, by-laws and ordinances needful for its good government and support.

In alienating real estate, such corporations must be governed by the provisions contained in its charter, on that subject. Civil Code Arts. 456 and 484, and Revised Statutes, Section 681. Its charter contains no specific directions on that subject, but Art. 4 of its charter provides that:

“The corporate power of said corporation shall be exercised by a Board of Trustees composed of not less than 5 nor more than 9 persons, five of whom shall" constitute a quorum for the transaction of all business. Said board shall be elected on the 4th Saturday of December in each year, and it shall, immediately after election, select from their number a president, secretary and treasurer. Said officers shall be members of said congregation in good standing. The said trustees shall continue in office for one year, and until their successors are elected, and no failure to elect shall be regarded as a forfeiture of the charter. Any vacancy occurring in said board or among the officers shall be filled by the remaining trustees for the unexpired term. In case of the absence or inability of the president or secretary and treasurer the board shall appoint from among their number a president or secretary and treasurer pro tempore, as the case may be.”

The charter- then names nine persons to constitute the first Board of Trustees. Robert Tyson, Alex Showers and Henrietta Davis, called in the petition, Harriet Williams, were among its incorporators. Robert Tyson was named as one of its first trustees.

As defendants deny that the parties named in the petition as plaintiff’s trustees, are in fact such, and claim that plaintiff has no right to appear in court and act through them; that its governing officers are those named in their answer, and deny that all except those mentioned, alleged in the petition to be members, are in fact such; the question as to which set of officers, those alleged by plaintiff to be such, or those alleged to be its officers by the defendants and by plaintiff’s membership at the time the opposing resolutions were passed, presents an important question in the case.

The charter provides that the president and secretary of the Board of Trustees shall be members of the Board.

The resolution of the plaintiff on November 12, 1927, was adopted at a meeting which was presided over by a president who, according to the resolution, was a member of the board, and the secretary was also, according thereto, a member of the board. The charter Requirements on that subject were complied with. But the resolutions offered by defendants purport to have been adopted at meetings at which the presiding officers were neither deacons nor trustees; nor even members of the church, and the secretaries of these meetings were likewise not deacons nor trustees. The meetings relied on by defendants were therefore not held as provided for by the charter.

The charter also provides that plaintiff’s governing board shall be called trustees.

In the answer of the defendants the governing board, on which they rely, is called deacons, but this difference in name is not important.

The charter provides that a Board of Trustees shall be elected annually on the fourth Saturday of December. Neither side claims officers elected on that day. Neither side bases any objections to the opposing ordinances and officers on that ground, consequently matters of this kind will have no weight in our conclusion. But the fact that the resolutions which the defendants set up were adopted at meetings, not held as provided for in the charter, is a matter which we take into account.

Plaintiff did not keep a written record showing members taken into or excluded from the church, or deprived of the privilege of membership, for failure of duty as members, etc. A solitary instance to the contrary appears in the resolution of April 12, 1926, offered by defendant, which shows that Delia Hart and Miles Sales were received back into the church.

The defendants introduced in evidence a list of members. Opposite the names of some appears the word “dropped,” and across that of others appears a pencil mark. We infer from this that the parties, at the time the list was made out, did not belong to the church.

The plaintiff offered evidence showing that the list which the defendant introduced was not correct; that there were other members whose names did not appear on that list. The evidence introduced by the plaintiff on the subject was not seriously disputed.

The evidence shows a strong partisan feeling as to who are and were plaintiff’s officers and members at the time this controversy commenced. The officers and membership of plaintiff are different, according to their alignment in the present controversy. The question of membership cannot be safely judged from the opposing views on the subject. "The most reliable guide appears to be the sworn testimony of those called and questioned on the subject in the presence of the court.

Plaintiff introduced witnesses who testified that they were members, and also as to the membership of others. The defendants objected and insisted that the membership roll, showing members and officers elected, as they contend for, was binding on the plaintiff. The court ruled otherwise; and under the circumstances, his ruling was correct.

The membership of the parties who composed the meeting on November 12, 1927, at which Alex Showers, George L. Wallace, Ed Obleton, Robert Tyson and Estelle Cole were elected trustees of plaintiff, seems to be established by the testimony of Mary Nelson, Estil Cole, Robert Tyson, Alex Showers, Lucille Williams, Annie Warren, J. D. Brandon, Rev. W. A. McCoy, called in the petition Rev. Mc-Cayle, George L. Wallace, Lottie Phillips, Corinne Phillips, Ed Obleton, Ada Obleton, Ada Crockett and Pauline McCoy, called in the petition Pauline McCayle. There is no evidence to the contrary as to any of them, except as to George L. Wallace and Robert Tyson.

Several witnesses called by the defendant testified that George L. Wallace and Robert Tyson had quit the First Baptist Church and joined the Second Baptist Church. The parties themselves testified -that they had, for reasons which they gave, ceased attending First Baptist and put themselves temporarily under the care of the other church; but they denied that they had removed their membership from First Baptist, but had retained their membership therein. No exclusion was established against them. John Cole corroborated the claims of George L. Wallace. We find that both parties are to be regarded as members of First Baptist Church, as claimed by them.

Defendants allege in their answer and it is shown by their resolutions, that Es-til Cole is a member. He is claimed by defendants as one of their deacons, and also by the plaintiff as one of its trustees. The testimony of Estil Cole shows that he claims to be a trustee, as the result of the meeting of November 12, 1927, and supports the action of the plaintiff.

Rey. W. A. McCoy and Lottie Phillips are named in the petition as being present at the meeting of November 12, 1927, at which plaintiff’s alleged trustees were elected. These parties testify that they were not present at the meeting and did not authorize use of their names in the suit. But their testimony shows that they are members of the church and in sympathy with the contentions of the plaintiff.

Alex Showers testifies that the 25 parties, said in the resolution of November 12, 1927, to be members and present at the meeting, were in fact members and were present and voted, as the resolution indicates. That trustees were elected and suit authorized as stated in the resolution seems to be and will be taken as true, except as to two parties mentioned above.

In regard to the defendants and their claims as to who are and were plaintiff’s officers, their contentions are based on resolutions adopted April 12, 1926, and February 21, 1927. This last resolution shows that Solomon Finn was recommended for a deacon, and closes with mention of “trustees or deacons”—Estelle Cole, Isaiah Daniel, Phillip Landorf, Elijah Geddings, Lee Washington and Solomon Finn. We gather from the evidence that they were, all except Finn, already deacons, and had been made such at previous meetings.

The resolution adopted at the meeting April 12, 1926, shows that W. McCarthy Williams, Phillip Landorf and Elijah Geddings were recognized as deacons, and that Miles Sales, Isaiah Daniels, Leon Washington and Estil Cole were also chosen as such by the congregation at the same time. But the evidence shows that none of the parties called deacons by defendants have been ordained as such, unless it was W. McCarthy Williams.

The note of testimony shows that plaintiff took the ¡position that these parties were not ordained deacons and that ordination was necessary to official status. The defendants took the position that ordination was not essential. F. P. Jackson, plaintiff’s pastor, defendant, testified to that fact. But this position on the part of defendants is not in harmony with the resolution of April 12, 1926, offered in evidence by them.

It appears from this resolution that Phillip Landorf, one of the defendants, and a few members had called a pastor. Their action in doing so was, on motion of W. McCarthy Williams, set aside and declared null and void, because Phillip Landaugh was not an ordained deacon and F. P. Jackson was elected pastor. It therefore seems that defendants, on this previous occasion looked on ordination as essential in order to give official status. It seems to us that the evidence requires that it be so held. It therefore follows that the deacons named in the answer of the defendants base their status as such on meetings, not held as provided for in the charter, and that they in addition, except W. McCarthy Williams, have not been ordained as such. But this does not .determine the controversy as regards the right to tear -down the old church, sell the lot, buya new site and erect a new church 'thereon.

The defendants allege in their answer that in Baptist churches the governing power is vested in the membership. Defendant’s position on that subject is correct, according to the testimony.

"In corporations the act of the majority is considered as the act of the whole.”

Civil Code, Art. 444.

As , for the act of the defendants in ¡tearing down the church building and removing the materials to another site, plaintiff not having filed a brief nor answered the appeal, and not having itself appealed from the judgment refusing its demand for damages as in case of non-suit on that account, that part of the judgment Will not be reviewed. The remaining question is, whether the lower court should be sustained in restraining defendants from selling the lot in question and from interfering with plaintiff in the use of same.

F. P. Jackson, pastor, and several of the other defendants testify, without contradiction, that he as pastor, had frequently given it out from the pulpit that the tearing down of the church building, selling of the lot, purchasing a new site and building a new church thereon was being considered.

A witness speaking of the objections to the old church stated that garbage was thrown in front of it, and that intoxicated people passed there and disturbed the services.

The evidence does not show, and the resolution of February 21, 1927, does not say, how many members were present at that meeting. It says that a motion to purchase a new site and rebuild was carried. Estelle Payne, secretary, says that there were a good many persons present, and she named several, but could not and would not express an opinion as to the number present. It seems from the resolution and evidence on the subject that this was not a congregational meeting, but rather a business meeting of officers. Lije Geddings speaking of the meeting says:

“Q. What took place?
“A. We wanted them all to come in. Nobody come, and we wanted to be the biggest majority anyhow and we went ahead to change the church; then when we got them—”

The witness was here interrupted and did not finish his answer. He was asked about notices of the meeting, etc.

Solomon Finn, speaking of the procedure looking to the tearing down of the old church and moving to another site, says that the deacons appeared at the meeting and decided on a plan and then when the members met they accepted it. That some thirty members were present at the meeting on July 26, 1927, at which the plan was accepted. Phillip Landaugh was present; he could not read or write, but his name was attached to the proceedings by his authorization. He does not say how many were present, but speaks of all present being members of the First Church. Isaiah Daniel, who was also present, says that the meeting on July 26, 1927, was attended by about 30 members, but further questioned, he says that the number was about 20, 22' or 23 or something like that. The resolution adopted at this meeting on July 26, 1927, purports to have been signed by 30 members, but none of them were called to prove their attendance and membership, except that the same is testified to, as above stated.

The list of church members, according to the list produced by defendant, not counting those opposite whose names .the word “dropped” has been written, nor those across whose names appear a pencil mark, amount to 52; but we have already had occasion to hold that this list was shown to be not correct, and that there are quite a number of members whose names are not carried on this list.

Hon. Wallace M. Poole, mayor of Covington, was called as a witness by defendants and asked what took place at a meeting held before him. He said that those who voted before him were not those who had been, but were, members at the time of the meeting. He subsequently admitted that F. P. Jackson, one of the defendants, was his authority for that statement. After reading his evidence and the evidence of others concerning this meeting, we are satisfied that it was gotten up by the defendants, and that it is not a safe guide as to the status of membership, nor as to the attitude of the members on the subject, as to which the church was divided.

The question of membership or the right of defendants to tear down the old church, sell the site and buy and erect in a new place, was not a matter which could be decided before the Mayor in the way mentioned.

• On the side of the defendants the showing is not as satisfactory nor as well supported as that of the plaintiff. And it is impossible for us to say, from the situation disclosed by this record, that the lower court erred in granting the injunction against defendants preventing the sale of the lot and interference with plaintiff, as regards the use of the same.

The lower court had the witnesses before him and in this way had some foundation on which he could base his conclusion, which we do not have.

We have therefore concluded that the judgment appealed from should be affirmed.

It may be that the church should be removed; that is a matter for the membership to decide. The judgment will not prevent the congregation from selling the lot in question and moving the location of the church elsewhere, if it sees fit, by-action taken at a congregational meeting duly called and held and favored by a majority present.

The judgment that we render is based on the ground that we are unable to say, from the present record, that defendants have authority to sell the present site, nor to prevent its use by plaintiff and its members for religious purposes, and as declared in the charter.

Judgment affirmed, defendants and appellants to pay the costs in both courts.


author: ODOM, J.

text:
    No. 2607
    Second Circuit
    LOUISIANA RED CYPRESS CO. v. KENNEDY & DENNY, INC.
    (March 12, 1929. Opinion and Decree.)
    Melvin F. Johnson, of Shreveport, attorney for plaintiff, appellant.
    Dickson and Denny, of Shreveport, attorneys for defendants, appellees.
   ODOM, J.

On March 12, 1923, the plaintiff ordered a carload of lumber with specified grades from defendants, to be shipped to the Patriot Manufacturing Company, of Havelock, Nebraska. Defendants shipped the lumber, and when it was received in Nebraska, the lumber was unloaded from the car and found to be defective, in that it was knotty, stained and not of uniform grade, as specified in the order. The lumber was refused by the consignee and later sold for a price less than the invoice. Plaintiff brings this suit against defendants to recover the amount alleged to have been lost.

Defendants denied liability, specifically alleging that plaintiff had failed to comply with the terms and conditions of its contract, and reconvened for $79.23.

There was judgment in the District Court rejecting plaintiff’s demands and in favor of defendants for the amount of their reconventional demand, and plaintiff has appealed.

OPINION.

The order for the carload of lumber was placed with defendants on March 9, 1923, and was promptly shipped. The testimony fairly shows, we think, that the lumber did not come up to the grade specified and that it was sold at a loss, but the contract between plaintiff' and defendants specifically provided that “lumber must be held intact until inspection and settlement is made. All claims must be filed within five days after receipt of lumber. Shortage claims must be supported by affidavit covering out-turn piece tally, showing full contents of the car, and seal record on the car. Damage claims must be accompanied by written statement of the railroad agent supported by affidavit.”

The plaintiff company failed utterly to comply with this part of its contract. There was no claim made for any shortage or for any loss on account of the defective grade of the lumber until ten weeks after the lumber was received by the consignee, and when claim was made, it was not in the form of an itemized statement' nor was the claim supported by affidavit. Plaintiff, therefore, failed to comply with the conditions of the contract which seems to have been drawn in accordance with the custom of the trade. ' Defendants’ contention is that it is manifestly unfair to a shipper to permit lumber to be received by a consignee and kept out for a period. of as much as ten weeks without formal notice of the defects in the lumber because, without such formal notice supported by satisfactory proof, it is. impossible for the shipper to protect himself.

The record is voluminous, containing much testimony, pro and con, as to the grade and condition of the lumber when received in Nebraska, and there are many exhibits in the way of letters and telegrams, 'all of which we have considered. Our conclusion is that under this testimony, and further, in view of the fact that plaintiff utterly failed to comply with the conditions of its contract as to formal notice, the judgment of the lower court rejecting plaintiff’s demands and giving defendants judgment in reconvention, is correct.

The appeal was lodged in this Court on March 15, 1926. It was set for argument for January 22, 1929, and counsel for appellants were duly notified of such setting. On the day the case was to be heard in this Court, the Clerk, observing that counsel for defendants were not present and recalling that they had filed no brief in support of their appeal, called them over the telephone and reminded them that the case would soon be reached on the calendar. Whereupon, counsel informed him that they did not care to be present.

In the ease of Bynum vs. Lieber, 155 La. 760, 99 So. 590, the organ of the Court said:

“Every judgment rendered by a court of justice is presumed to be correct, and it can scarcely be expected that this Court, in an appeal will seek, in the absence of assistance from the appellant, to detect errors which are not patent on the face of the record.” (Citing Schwan vs. Paterman, 123 La. 732, 49 So. 486.)

This Court has repeatedly made similar statements. Only questions of fact are involved and, as stated, we have read the testimony and exhibits, and find the judgment in accordance therewith. There are no errors patent on the face of the record.

For the reasons assigned, the judgment appealed from is affirmed, with costs in both Courts.


author: WEBB, J. ODOM, J. WEBB, J„

text:
    No. 2650
    Second Circuit
    STEVENSON v. EXCHANGE NATL. BANK ET AL.
    (March 14, 1928. Opinion and Decree.)
    (May 22, 1928. Rehearing Granted.)
    (January 21, 1929. Opinion and Decree on Rehearing.)
    (March 12, 1929. Rehearing Refused.)
    (See Exchange National Bank vs. Palace Car Co., 1 La. App. 307.)

      Cook and Cook, of Shreveport, attorneys for plaintiff, appellee.
    Dickson and Denny, of Shreveport, attorneys for defendant, appellant.
   WEBB, J.

The Exchange National Bank,. on the 17th day of July, 1922, proceeded against the Palace Car Company via ordinaria to foreclose a mortgage on an automobile, in which proceeding a writ of sequestration was isssued and the automobile seized in the possession of W. A. Stevenson, and on July 24, 1922, judgment was rendered in favor of the Exchange National Bank on the answer of the Palace Car Company for the amount claimed with recognition of the mortgage, maintaining the sequestration and ordering the property seized and sold, and the proceeds applied to the payment of the judgment, under which a writ of seizure and sale was issued.

W. A. Stevenson filed with the sheriff an affidavit claiming ownership of the automobile, and on August 4,' 1922, the Exchange National Bank gave the sheriff an indemnity bond in the sum of twenty-nine hundred and twenty-eight dollars, and on the 19th of August, 1922, W. A. Stevenson filed an intervention and opposition claiming the ownership of the automobile, which was sold by the sheriff on that date under the writ above referred to, for the sum of twelve hundred and fifty dollars, the proceeds being delivered to the Exchange National Bank.

The opposition of W. A. Stevenson was subsequently tried, and on the 14th of April, 1923, judgment was rendered decreeing opponent the owner of the automobile, and rejecting the demands of the Exchange National Bank for recognition of its asserted mortgage thereon, and ordering the automobile delivered to opponent, from which judgment the sheriff, the Exchange National Bank, and the Palace Car Company appealed suspensively, giving an appeal bond in the sum of fifteen hundred dollars, dated April 17, 1923, with E. C. Payne as surety, and the judgment being affirmed on appeal, opponent caused to be issued a writ of possession on which demand was made against the Exchange National Bank, without result, and return was made accordingly.

The present suit by W. A. Stevenson, was filed on April 25, 1925, against the Exchange National Bank and E. C. Payne for damages resulting from the seizure and sale of the automobile, consisting of attorney’s fees incurred on the trial of the opposition and the alleged value of the automobile, the action being apparently based upon the general law and upon the indemnity bond, and, in the alternative, on the appeal bond, for the value of the car, and, in a second alternative, to recover the proceeds of the sale of the automobile paid over by the sheriff to the Exchange National Bank, as under a quasi contract.

The defendants filed exceptions of no cause of action and pleas of prescription of one year, which being overruled, they filed an answer in substance pleading a general denial, and the cause was tried on a statement of fact which embodied, in substance, the facts stated above, and further showed that the automobile had cost plaintiff fourteen hundred and sixty-four dollars and that counsel representing W. A. Stevenson in the opposition was present when the sale of the automobile was made by the sheriff, but that he was representing someone else, and that W. A. Stevenson had .obligated himself to deliver to third persons the amount recovered above one hundred dollars, on which latter facts the defendants filed a plea of estoppel, and the cause being submitted, judgment was rendered against defendants in solido for the sum of twelve hundred and fifty dollars, with interest, from which defendants have appealed.

While the plaintiff apparently bases his right to recover upon several causes of action, the only one which is pressed is the first or primary cause, and as plaintiff does not cite any authority in support of the alternative demands and as we have been unable to find any authority which would, under the admitted facts, warrant judgment on the alternative demands, we consider the alternative demands as waived and shall confine our opinion to the primary demand or cause of action, which appears to have been the basis of the judgment.

The evidence, as stated, shows that the seizure and sale of the automobile was made under a judgment recognizing a mortgage thereon and ordering it to be seized and sold, and the sheriff acting under a writ issued thereon did not incur any liability and did not have the right to demand of the plaintiff in execution an indemnity bond.

In Foucher vs. Kenner, 35 La. Ann. 149, it was held:

“A sheriff or United States marshal cannot be made responsible, in damages, for executing a judgment, recognizing a privilege on property provisionally seized in the suit, by the seizure and sale of the property.
“Where, in such a case, upon the demand of a third person claiming ownership of the property, an indemnity bond has been furnished, conditioned for the payment of such damages as might be recovered against the marshal in consequence of such seizure, the surety on such bond cannot be held for any damage other than those for which the marshal might have been liable, and, inasmuch as the marshal could be responsible for none, the action must fail.”

In the cited case, the indemnity bond had been given by the plaintiff in execution, and the suit was against him by the person to whom the bond had been assigned, and we are of the opinion that the ruling in that case is applicable to the present, and the plaintiff here did not ' acquire any rights under the bond as against either the Exchange National Bank, principal, or E. C. Payne, surety on the indemnity bond.

The sale of the automobile was made on August 19, 1922, and more than one year had elapsed from that date to the time the present suit was filed, and if the conversion was of the date of the sale, the action for damages resulting therefrom was prescribed at the time the present action was filed. (Edwards vs. Turner, 6 Rob. 382; Anty vs. Adle, 9 La. Ann. 490; DeLizardi vs. N. O., etc., Banking Co., 25 La. Ann. 416; Liles vs. Barnhart, 152 La. 419, 93 So. 490; Liles vs. Producers Oil Co., 155 La. 385, 99 So. 339); unless the course of prescription was interrupted or suspended by the suit or opposition to the sale, under which the opponent asserted title to the property.

In Edwards vs. Turner, supra, where it was contended that prescription did not run as to the claim for damages resulting from the seizure during the pendency of an action involving the title as between the plaintiff in execution and, the owner of the property seized, it was said:

“Article 3537 (3502) C. C., which immediately follows that creating the prescription of one year in cases of offences and quasi-offences, provides, that such prescription shall run from the time when the damage was sustained. * * * Notwithstanding the pendency of his intervention, the plaintiff in this suit could have brought his action in damages within the time required by law, and was not obliged to await the final decision of this court on his right to the property seized. * * * Under the positive provision of the Code, which declares that prescription must run from the time the injury was sustained, we do not -feel authorized to fix any other terminus a quo.”

And the same ruling was made in De-Lizardi vs. N. 0., etc., Banking Co., supra; and while in those cases the claim was for damages resulting from the seizure and not for the conversion of the property, we think the same rule is applicable in either, as in Liles vs. Barnhart, supra, the Court said:

“That one cannot sue until his cause of action accrues, is scarcely debatable. However, prescription begins to run from the moment it does accrue, and unless suit be brought within the prescriptive period, the action is barred, unless for some legal reason prescription should be interrupted or suspended. Prescription, in such cases, is interrupted by petition and citation served on the debtor or by his acknowledgment of the debt. The petitory action, instituted by plaintiffs, did not interrupt prescription on the demand herein, for the value of the oil and gas, for the reason that the petition, in that suit, contained no such demand, but onljr a mere reservation of the right to sue therefor, which is insufficient.”

We are therefore of the opinion that the plaintiff did not acquire any rights under the indemnity bond, and the claim for damages was prescribed; and his demands should have been rejected.

It is therefore ordered that the judgment appealed from be annulled, avoided and reversed, and that it be now ordered, adjudged and decreed that plaintiff’s demands be rejected at his cost.

ON REHEARING.

ODOM, J.

A further consideration of this case has convinced us that our former decree, reversing the judgment of the lower court, is erroneous.

Our former holding is based upon two propositions; first, as stated by the organ of the Court:

“The evidence, as stated, shows that the seizure and sale of the automobile was made under a judgment recognizing a mortgage thereon and ordering it to be seized and sold, and the sheriff acting under a writ issued thereon did not incur any liability and did not have the right to demand of the plaintiff in execution an indemnity bond;”

and second, that plaintiff’s action had prescribed.

It is true, as we held, that where a sale is made by the sheriff under a judgment recognizing a mortgage on the property sold, and the sheriff acts under a writ issued thereunder, he does not incur any liability and he does not have a right to demand of the plaintiff an indemnity bond. Of course, if the sheriff has no right to demand an indemnity bond, a bond demanded and obtained by him from the seizing creditor is null and void.

In the case of Foucher vs. Kenner, 36 La. Ann. 149, it was held, on sound reason, that:

“A sheriff * * * cannot be made responsible, in damages, for executing a judgment recognizing a privilege on property provisionally seized in the suit, by the seizure and sale of the property.”

But that holding is not applicable to the case at bar for the reason that there was no judgment recognizing a privilege on the automobile seized and the sheriff had no order to seize and sell it. That point was definitely settled in the suit of Exchange National Bank vs. Palace Car Company, No. 32,906, 120 So. —, wherein the present plaintiff, W. A. Stevenson, intervened by way of third opposition, claiming the ownership of the car.

The suit of Exchange National Bank vs. Palace Car Company, No. 32,906, was on a debt secured by chattel mortgage on one certain “6—48 wire-wheel roadster, bearing motor No. 50,795”, that being the identical description of the car set out in the act of mortgage. The Court ordered a car of that description sequestered, and, according to the sheriff’s returns, he seized and took into his possession, while in the hands of Stevenson, one “6—48 wire-wheel, Moon roadster, Motor No. 50,795”.

On July 22, 1922, there was judgment for plaintiff, sustaining the writ of sequestration and recognizing plaintiff’s “special chattel mortgage, lien and privilege against the said ‘6—48 wire-wheel roadster, bearing Motor No. 50,795’ ” and ordering said car sold to satisfy plaintiff’s judgment.

The car which the sheriff had seized was seized while in the hands' of Stevenson, but, before the sale, Stevenson, the present plaintiff and third opponent in suit No. 32,906, protested the sale and made affidavit that he owned the car seized. Whereupon, the sheriff required of and obtained from the seizing creditor an indemnity bond with surety, under Section 3579 of the Revised Statutes, as amended by Act 37 of 1882, page 50, conditioned upon the seizing creditor’s paying to the sheriff all “such damages and costs as may be recovered against him by the said W. A. Stevenson, in the event the said Stevenson is declared to be the owner of said property.” The sheriff then, in accordance with Section 3580 of the Revised Statutes, assigned said bond to W. A. Stevenson, and proceeded with the sale of the car, which brought at public auction $1250, and which amount was paid over to the seizing creditor to apply on its judgment against the Palace Car Company.

Stevenson, without enjoining the sale, intervened by way of third opposition, setting up that he was the owner of the car free from any lien or encumbrance whatsoever; that he purchased the same from Baucum & Stewart, of Haynesville, Louisiana, and paid therefor $1,464 cash, and that at the time he purchased it, there were no recorded mortgages against it and further alleged that the seizing creditor had obtained judgment against the Palace Car Company “recognizing a chattel mortgage upon a Moon, wire-wheel roadster, bearing No. 50,795, and that under the said judgment, plaintiffs have caused your petitioner's car, bearing Motor No. 43,075, to be seized.” He prayed for judgment decreeing him to be the owner of the Moon roadster, Motor No. 43,075, and decreeing that said car “was not subject to seizure as the property of defendants (Palace Car Company), dismissing plaintiff’s claim to a chattel mortgage or to a lien thereon, and ordering that same be forthwith restored to the possession of petitioner.”

In answer, the Exchange National Bank admitted the seizure of the car in the hands of Stevenson, but denied that the car seized was the property of Stevenson, and “shows that Motor No. 43,075 is incorrect and is not the number of the car seized.”

The issues presented by Stevenson’s intervention and opposition hinged upon the identity of the car seized—Stevenson contending that the sheriff had seized property which belonged to him and which was not mortgaged, and that the Court had not recognized a mortgage and privilege on the car which was actually seized by the sheriff and the further contention that Stevenson had purchased the car free from any lien or mortgage. On those issues the case was tried, and on April 14, 1924, there was judgment for Stevenson, intervener, “decreeing the intervener to be the owner of that certain wire-wheel Moon roadster, bearing Motor No. 43,075, and being the same car seized herein by the plaintiff under execution against the defendant (Palace Car Company); it is further ordered, adjudged and decreed that the plaintiff’s demands for recognizing its chattel mortgage upon the said car, as against the intervener, be rejected, and said plaintiff (Exchange National Bank), defendant (Palace Car Company), and the sheriff of Caddo Parish are ordered to restore to intervener the possession of said car.”

The Exchange Ñational Bank appealed suspensively to this Court, and gave bond conditioned according to law. The judgment was affirmed (See Exchange National Bank vs. Palace Car Company; W. A. Stevenson, third opponent, 1 La. App. 307.)

Therefore, the question as to whether the seizing creditor had a mortgage and recognition of a privilege on the car seized, and as to whether it was owned by the seized debtor or Stevenson, has been definitely and finally settled in favor of Stevenson. It follows, therefore, necessarily, that we must now hold that the sheriff, in executing a process of the Court, seized property, not only claimed by but adjudged to belong to third opponent, Stevenson. So that the indemnity bond which the sheriff took from the seizing creditor, Exchange National Bank, “conditioned for the payment of all damages which the sheriff may sustain in case such third person should be adjudged to be the owner of said property,” which bond was duly assigned to W. A. Stevenson, the plaintiff in the present suit, is a valid and binding obligation upon the bank and its surety to pay to Stevenson whatever damages the sale of the property may have caused him, which the lower court correctly held to be $1250.00.

Under Article 400 of the Code of Practice, the sale of the car by the sheriff was null and, but for the indemnity bond which he took, the sheriff would be personally responsible for the damages. The effect of the bond, however, was to shift the responsibility from the sheriff to the seizing creditor.

After the judgment recognizing Stevenson as the owner of the car seized and ordering it restored to his possession had become final, he procured the issuance of a writ of possession commanding the sheriff “to place W. A. Stevenson, Intervener and Third Opponent * * * in full and complete possession of * * * a certain wire-wheel, Moon roadster, bearing Motor No. 43,075, and being the same car seized in this suit by the plaintiff, Exchange National Bank, under execution against the defendant, Palace Car Company.”

The sheriff in his return on the writ certified that he had called upon the bank, through its president, to produce the car, and upon its failure to do so, he had made search for the same and found that it was released to the bank by virtue of an indemnity bond on August 10, 1922, and he returned the writ to the Clerk’s office.

By the present suit, W. A. Stevenson seeks to recover on the indemnity bond which was assigned to him by the sheriff. Our former decree rejected his demand on the ground that the sheriff, in making the sale, was acting under an order of Court which protected him for which reason he had no right to demand of the seizing creditor an indemnity bond, and that the bond given was null; but it is shown by the record that the car on which the bank claimed a mortgage and lien and which was alleged to be the property of its debtor, the Palace Car Company, and which the sheriff was ordered to seize and sell, had Motor No. 50,795, and that the car which he actually seized and sold had Motor No. 43,075, and belonged, not to the seized debtor, but to Stevenson, a third person—a stranger to the original proceeding.

It is suggested that the car which the Palace Car Company intended to mortgage to the bank and upon which the Court recognized the lien and ordered sold, and which the sheriff did seize and sell, is the identical car which Stevenson claims, and that the confusion arose over an incorrect description of the car, and that the purport of the Court’s judgment on the opposition of Stevenson is that the chattel mortgage was invalid for lack of correct description. Be it so, the results, so far as the present suit is concerned, are the same. The burden of Stevenson’s complaint from the time he made the affidavit to the end of the lawsuit was that the sheriff had seized property which belonged to him, and not to the seized debtor, and that he owned the car, free from any lien or encumbrance whatsoever, and it was so adjudged by the Court. If it be conceded, tlferefore, that the mortgage was intended to cover the identical car, the fact remains, as held by the Court, that it did not, because the description was insufficient. Dr. Stevenson purchased the car from Baucum & Stewart, not the mortgagee, and paid cash for it. Before doing so, he called by phone the Clerk of the District Court of both Claiborne and Caddo Parishes, where the mortgage was recorded, and asked if there was a mortgage on the car with Motor No. 43,075,* the correct number, and received negative replies. In the case, as reported in Exchange National Bank vs. Palace Car Co., 1 La. App. 307, the Court held, to quote;

“It is clear, we think, that the car was not described in the mortgage, so as to make it possible to identify it (Section 2 of Act 198 of 1918), and hence that as to an innocent third purchaser, it can have no effect.”

In our former opinion, we held that the plea of prescription of one year interposed by the bank was good, and sustained it. But that holding was based upon the finding that the indemnity bond was void, and that, therefore, plaintiff’s action was not ex contractu, but was one for the value of property wrongfully taken and appropriated, -which action, it was held in Liles vs. Producers Oil .Company, 155 La. Rep. 386, 99 So. 342, “is not distinguishable from an action as for a tort or quasi offense and is prescribed in one year from the time knowledge is received by plaintiff of such wrongful appropriation.” (See Liles vs. Barnhart, 152 La. Rep. 419, 93 So. 490; DeLizardi vs. New Orleans Canal & Banking Company, 25 La. Ann. 414.)

In Edwards vs. Turner, 6 Rob. 382, it was held that an attachment of property of a third person as belonging to a defendant is a quasi offense, and that the action by the owner for damages is prescribed in one year from the seizure and not from the date of the judgment establishing the title of the owner. The same was held in the case of DeLizardi vs. New Orleans Canal & Banking Company, supra. The present suit is primarily on the indemnity bond which was valid. The action, therefore, is ex contractu and is not prescribed by one year.

Lastly, the bank interposed a plea oí estoppel based upon the ground that attorneys, Cook & Cook, who now represent Dr. Stevenson, were present at the public sale of the car and made no protest. The agreed statement of facts, however, shows that Dr. Stevenson was not present at the sale and that Cook & Cook were not at the sale representing Stevenson, but were representing Baucum & Stewart. A plea of estoppel based on the same facts was urged in the case when it was before the Court on the opposition of Stevenson, and was disposed of by the organ of this Court (See Exchange National Bank vs. Palace Car Co., 1 La. App. 307), in these words, which we adopt:

“And as to the plea of estoppel, it is without merit, because the third opponent was, at the very moment oí the sale, protesting in the most solemn manner (by a suit in court) against the sale of his property. The logic of .counsel’s argument on this plea is that a third person whose property is about to be sold for the debt of another, must either enjoin the sale, or forever—thereafter hold his peace. The law is not so. It expressly authorizes the identical proceedings which the third opponent followed in this case. C. P., Art. 400.”

It is not necessary to pass on plaintiff’s first alternative plea, because we hold that plaintiff is entitled to recover on'the indemnity bond.

For the reasons assigned, it is now ordered, adjudged and decreed that the judgment of the District Court appealed from be affirmed, with costs.

WEBB, J„

concurs in the result, being

of the opinion, however, that liability is on the appeal bond, in which the Exchange National Bank bound itself to comply with the judgment ordering it to deliver the property to plaintiff, and in default of delivery it was bound to respond for the value of the property, and section 7, Act No. 112 of 1916, permitting the surety to be sued with the principal, the value of the property could be fixed in an action on the bond.


author: WEBB, J.

text:
    No. 2887
    Second Circuit
    WESTCHESTER FIRE INS. CO. ET AL. v. SHREVEPORT PRODUCING AND REFINING CORP.
    (March 12, 1929. Opinion and Decree.)

      Alex F. Smith, of Shreveport, attorney for plaintiffs, appellees.
    John B. Files, of Shreveport, attorney for defendant, appellant.
   WEBB, J.

In this action, the plaintiffs, who are various insurance companies, allege that a building, belonging to the Journal Publishing Company, a corporation, on which they carried policies protecting the owners against loss hy fire, had been damaged by a fire which resulted from the negligence of the defendant, Shreveport Producing & Refining Corporation; and that the loss or damage to the building had been adjusted with the insured, which had assigned and subrogated its rights as against defendant to plaintiffs, and they prayed for judgment against defendant for the amounts paid by them to the insured with legal interest from demand, and defendant appeals from a judgment in favor of plaintiffs for the amount claimed.

The fire originated in a part of the building which was leased to the S. & L. Service, a corporation, engaged in the business of renting or letting out for hire, automobiles, which maintained on the premises a tank for storage of gasoline to he used in its automobiles, and the fire occurred when the tank was being filled with gasoline from an oil truck of the defendant corporation.

It is conceded that the fire was caused by gasoline vapors coming in contact with the fire in a stove which was maintained by the lessee on the premises, and the theory of plaintiffs’ case is that the driver of the truck had overfilled the tank and that the overflow therefrom ran down the sides of the tank and over the floor, causing ' vapors which had come in contact with the flame; while the theory of the defendant, who denied that the driver of the truck had overfilled the tank, appears to be that the vapor arose from the evaporation of gasoline in the tanks of automobiles stored on the premises, and from gasoline used by the employees in cleaning their hands, which had accumulated in the building due to the building not being sufficiently ventilated, and defendant further urged that the assignment and subrogation made out by the insured, which was signed by its president, was not sufficient in the absence of proof that he had been authorized by the hoard of directors, and it also urged that it would be inequitable to permit the plaintiffs to recover as against it for losses sustained by them under the contracts of insurance with the insured, plaintiffs having received compensation from the insured to carry the risk.

The evidence established that immediately after the explosion, gasoline which had been ignited was running down the sides of the storage tank and spreading out over the floor, and while the driver of the truck stated that he had not overfilled the tank, he admitted that it was filled to a point where he could see the gasoline bubbling up, and that the explosion occurred at that time, and while the evidence shows that there were automobiles stored on the premises, and that the workmen used gasoline in cleaning their hands, it was not shown ■ that any of the tanks on the automobiles were open, or that any gasoline had been used by the workmen prior to the explosion, nor was it shown that the building was not properly ventilated, or that fumes from gasoline would accumulate in the building.

We are of the opinion that the evidence conclusively established that the driver of the truck had overfilled the storage tank and that the overflow had run down the sides of the tank and spread out over the floor, and it appearing that the gasoline would thus evaporate rapidly, and it being conceded that the fire was caused from the fumes of gasoline coming in contact with the flame in the stove, it is reasonable to conclude that the fumes which-were ignited came from the overflow of gasoline from the storage tank, especially when the evidence to the contrary amounts to nothing more than that the fumes could have come from some other source.

The policies provided for the' assignment and subrogation of the rights of the insured to the plaintiffs, and the insured having accepted from the plaintiffs payment for the loss sustained, the formal assignment and subrogation was within the ministerial authority of the president, who was also the general manager of the insured, and did not require any special authorization of the board of directors, and as appellant does not urge the defense that it would be . inequitable to permit plaintiffs to recover under the assignment, we pz-esume that the position is abandoned.

The judgment is affirmed.


text:
    No. 2872
    Second Circuit
    SAENGER-EHRLICH ENTERPRISES, INC. v. STEPHENS
    (March 12, 1929. Opinion and Decree.)
    Thigpen, Herold, Lee and Cousin, of Shreveport, attorneys for plaintiff, appellee.
    E. L. Blewer and J. T. Jeter, of Shreveport, attorneys for defendants, appellants.
   ODOM, J.

This suit is brought by plaintiff to recover the amount of $300.00, for damages caused to its building in the City of Shreveport, resulting from the alleged negligence of defendants in driving their automobile against it. Defendants answered, denying generally plaintiff’s allegations. There was judgment in the lower court for plaintiff, as prayed for; and defendants have appealed.

OPINION.

The testimony shows that Mrs. Stephens was driving her automobile on Louisiana Avenue toward the business section of the City of Shreveport, and when she reached the intersection of that street with Crockett Street, she turned to the right, and, in doing so, ran against a ten-year-old boy and knocked him down. According to the testimony, this threw Mrs. Stephens into a fit of excitement, causing her to lose control of the car altogether, and, instead of proceeding on down Crockett Street, as she had expected to do, she ran across Crockett Street, over against plaintiff’s building. The testimony abundantly shows that Mrs. Stephens was negligent in at least two respects; namely, one being that she was driving at an excessive rate of speed— approximately 30 to 35 miles an hour; and second, that the foot brakes on the car were totally ineffective. Mr. Tanner, City Marshal, who took charge of Mrs. Stephens’ automobile after the collision, testified that while the emergency brake was in order, yet the foot brake was so worn or loose that it would not stop the. car at all. Mr. Ehrlich, treasurer of the Simon Ehrlich Enterprises, Incorporated, testified that he arrived at the scene while Mrs. Stephens was still there, and that in discussing the matter with her, she admitted that the damage was due to her own fault and negligence, and that she agreed to pay all damages. This testimony is not disputed.

The testimony found in the record amply supports the judgment appealed from. Furthermore, since this appeal was lodged, defendants have not appeared, through counsel or otherwise, to argue the case, nor has any brief been filed pointing out error in said judgment. We assume that the appeal has been abandoned. Under repeated rulings of this and of the Supreme Court, where an appellant fails to appear and point out errors in a judgment rendered, the Court will affirm the judgment unless there are errors patent on the face of the proceedings. In this case, the proceedings seem to be regular in all respects, and, as above stated, the testimony supports the findings of the trial judge.

For the reasons assigned, the judgment appealed from is affirmed, with costs in both Courts.


text:
    No. 3341
    Second Circuit
    MIDDLETON v. JORDAN
    (March 12, 1929. Opinion and Decree.)

      T. Overton Brooks, of Shreveport, attorney for plaintiff, appellant.
    Cook, and Cook, of Shreveport, attorneys for defendant, appellee.
   STATEMENT OP THE CASE.

REYNOLDS, J.

Plaintiff, John T. Middleton, for himself and for his minor son, John T. Middleton, Jr., sued defendant to recover damages for personal injuries suffered by the son and for the cost of medical attention to him and cost of repairs-to an automobile belonging to plaintiff, which damages grew out of a collision between an automobile owned and being-driven by defendant and an automobile owned by plaintiff and being driven by his son.

The collision occurred on the intersection of Alabama Avenue and Hardy Streets in the City of Shreveport, Louisiana, on December 15, 1927, and is alleged by plaintiff to have been caused by negligent driving of defendant’s car.

Defendant denied the negligence charged and alleged that the accident was the result of negligent operation of plaintiff’s car by his son.

On these issues the case was tried and there was judgment rejecting plaintiff’s demands and dismissing his suit and he has appealed.

OPINION.

The issue to be determined in this case is one of fact, namely, to whose fault was the collision attributable, that of defendant or that of plaintiff’s son?

In actions of this character the burden is on the plaintiff to make out his case by a fair preponderance of the evidence. In this case the only eye-witnesses to the collision were the occupants of the colliding cars and their evidence is conflicting.

The testimony of John T. Middleton, Junior, and Ployd Bunk, called as witnesses for plaintiff, is to the effect that plaintiff’s car reached the intersection first, that it was being driven at a speed of about fifteen miles an hour, and that defendant’s car was moving at a speed of 40 to 60 miles an hour; while defendant testifies that his car was the first to reach the intersection, that it was moving at a speed of about fifteen miles an hour, and .that plaintiff’s car was being driven at a speed of fifty miles an hour.

Where automobiles moving at right angles to each other approach an intersection of streets the one reaching there first has the right of way and the other should respect that right and failure to do so is negligence.

Spainhour vs. Dulaney, 4 La. App. 552.

The physical facts and other evidence satisfies us that defendant’s* car was the first to reach the intersection and that it was being driven at about fifteen miles an hour. Defendant saw plaintiff’s car on Hardy Street eighty to ninety feet away and having the right of way drove into the intersection. Plaintiff’s car was moving at a high speed, and when defendant realized that • a collision was impending he endeavored to avert it by swerving his car to the left and in doing so struck plaintiff’s car on its back end, and plaintiff’s car after being struck continued on in the direction it was going until it struck the curb on the east side of Alabama Avenue and there turned over one or more times.

In our opinion had plaintiff’s car been moving at a moderate speed and defendant’s at a high speed, as claimed by plaintiff, the impact of the cars would have caused, plaintiff’s car to move in. a different direction from that in which it was going and would have damaged it more than it did.

Both John T. Middleton, Junior, and Floyd Bunk testified that plaintiff’s car reached the intersection first and that they both looked to the right and left for approaching vehicles and that they could not see over from twenty to thirty feet up or down Alabama Avenue, and that defendant was driving on his left hand side of Alabama Avenue and that they could not see him when their car reached the intersection. Had they looked to the left when they reached Alabama Avenue and if as they say defendant’s car was coming south on the east side of Alabama Avenue, we cannot understand why they could not have seen defendant’s car anywhere in the block north of Hardy Street as there was nothing to prevent their seeing it; and yet they testify they did not see it until it was within forty to sixty feet of them.

We do not think the testimony of these two witnesses sufficient to overcome the testimony of the defendant, corroborated, as we think it is, by the physical facts.

The trial judge who saw and heard the witnesses testify was of the opinion that plaintiff had failed to make out his case. That finding of fact is correct. It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed.


text:
    No. 3219
    Second Circuit
    LAIRD v. NATCHITOCHES OIL MILL, INC.
    (March 12, 1929. Opinion and Decree.)
    James W. Jones, Jr., of Natchitoches, attorney for plaintiff, appellee.
    Phanor Breazeale, of Natchitoches, attorney for defendant, appellant.
   WEBB, J.

The plaintiff, James A. Laird, brought this action, individually and as the representative of his minor son, Lester Laird, to recover judgment for damages against the defendant, Natchitoches Oil Mill, Inc., alleged to have been sustained as the result of the negligence of an employee of the defendant in driving a motor truck belonging to and being used in furtherance of the defendant’s business, which collided with a bicycle on which Lester Laird was riding.

The plaintiff alleged that the bicycle was completely wrecked, for which he claims sixty-eight dollars, and that the life of his son was endangered, causing his son to become exceedingly frightened and' nervous, for which he claimed damages for the benefit of his son in the sum of two hundred and fifty dollars.

The defendant excepted that the petition failed to state a cause of action, which being overruled, it answered, pleading a general denial, but tendered forty-seven and 50-100 dollars in payment of the damage to the bicycle, and cost to date, of tender, and on trial judgment being rendered in favor of the plaintiff, individually, for forty-two and 85-100 dollars, and for the benefit of his son, in the sum of fifty dollars, defendant appeals, and plaintiff has answered the appeal, praying that the judgment be amended so as to increase the amount of the award to that originally claimed.

The amount awarded plaintiff individually is the original cost price of the bicycle, and the only question presented here is as to the right of the plaintiff to recover for the alleged injuries sustained by his son, Lester Laird; it being urged that inasmuch as the evidence does not establish that Lester Laird sustained any physical injury at the time of the accident, there could not be any recovery for fright or the physical consequences resulting therefrom, and, further, that the evidence does not establish that Lester Laird suffered any physical injury as the result of fright which he experienced when knocked from the bicycle at the time of the injury.

There is a conflict of opinion in other jurisdictions as to whether or not there can be a recovery for fright or the physical consequences resulting therefrom, where there is not any contemporaneous physical injury; however, under Article 2315 of the Civil Code, which declares that every act whatever of man that causes damages to another, obliges him by whose fault it happened to repair it, it is at> least recognized that the physical consequences resulting from fright may be properly considered in estimating damages although the fright was unaccompanied by a contemporaneous physical injury.

In Stewart vs. Arkansas Southern Railway Company, 112 La. 764, 36 So. 676, it was said;

“The argument that fright, as an element of damages, is not to be considered, has interesting features. It would perhaps be convenient and expeditious, in determining suits such as this, to adopt the simple rule that no recovery of any kind can be had for fright occasioned by the negligence of another, be the fright what it may, although its consequences are most serious—such as blindness, insanity and even miscarriage.
* * *
“Under our jurisprudence and special laws, we would not be justified if we were to adopt this simple rule. In our Code (Articles 2315-2317) the wise precept of the Institutes of Justinian are incorporated in substance, to-wit: Juris■ praecepta sunt, alterum non laeclere, suum euique tribuare. and, as translated and inserted in our Code, its text looks to the liability for all damages.” (Also Bourg vs. Lumber Co., 120 La. 1009, 45 So. 972, 124 Am. St. Rep. 448, and cases cited; Favalora vs. N. O. Ry. & Light Co., 143 La. 572, 78 So. 994; Tuyes vs. Chambers, 144 La. 723, 81 So. 265.)

Lester Laird was only twelve years of age and the fright which he suffered was not any greater than should have been expected to follow from the situation in which his life was imperiled by the negligence of the defendant, and while it may be that the period of danger was too short to serve as the basis of any award of damages, however the uncontradicted evidence shows that following his escape from the danger and for some time thereafter he was very nervous, and although it does not appear that he will suffer any permanent impairment of his nervous system; or of his health, it appears certain that he did, for an appreciable time, suffer some anguish as a result of the fright, and that that was some shock of his nervous system, for which, we think, he is entitled to recover some damages, and we do not find that the amount fixed by the. trial court was excessive or inadequate.

The judgment is’ therefore affirmed.


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    No. 2958
    Second Circuit
    GRAHAM GLASS CO. v. DYER
    (March 12, 1929. Opinion and Decree.)
    Crain, Jackson and Johnston, of Shreveport, attorneys for plaintiff, appellee.
    Philip H. Mecom, of Shreveport, attorney for defendant, appellant.
   STATEMENT OF THE CASE.

REYNOLDS, J.

Plaintiff, Graham Glass Company, sued defendant, F. L. Dyer, as guarantor of J. M. Blakely, to recover a balance of $936.05 owing by Blakely to the plaintiff upon an open account. The defendant filed what was, in effect, a general denial. On trial he offered evidence tending to prove that he had been released from his guaranty by the plaintiff. The evidence was objected to by plaintiff and admitted subject to the objection and apparently disregarded by the court in rendering judgment. The judgment was in favor of the plaintiff and the defendant appealed.

OPINION.

The defendant, in brief, concedes that under the pleadings and the evidence not objected to the judgment is correct, but contends that the cause should be remanded to the trial court to enable him to amend his answer and set up the defence sought to be established by the evidence objected to.

So that the only question before the court is whether .the cause should be remanded for this purpose.

The defence that the defendant was released from his obligation by the plaintiff is contrary to and destructive of that set up in his answer, which was, in effect, that he had not contracted the' obligation. He was aware of this defence before he filed his answer and yet did not plead it, nor did he ask permission of the trial court to amend his answer so as to plead the defence on the evidence offered in support of it being objected to.

The defence of release rests upon alleged conversation over the telephone between defendant and an agent of plaintiff and the agent positively denies the alleged release.

Admittedly the judgment is correct under the pleadings and the evidence on which it is based and accordingly it is affirmed.


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    No. 3355
    Second Circuit
    UNION INDEMNITY CO. v. McBRIDE
    (March 12, 1929. Opinion and Decree.)
    Phanor Breazeale, of Natchitoches, attorney for plaintiff, appellant.
    Rusca and Cunningham, of Natchitoches, attorneys for defendant, appellee.
   WEBB, J.

Plaintiff, Union Indemnity Company, having insured an automobile belonging to J. H. Walker, which was damaged in a collision with an automobile owned by defendant W. J. McBride, which was at the time of the collision being driven by the latter’s minor son, instituted the present action to recover the amount paid by it for having Walker’s car repaired, and also for the expenses incurred in investigating the accident, and it appeals from a judgment rejecting its demands.

Plaintiff alleged, in substance, that J. H. Walker was driving north on Front Street in the City of Natchitoches at a slow rate of speed and on the right side of the roadway, and desiring to turn to the left into a side street he gave the proper signal by extending his hand, and that as he was turning to enter the side street the automobile being driven by defendant’s son was driven into collision with Walker’s automobile.

In answer, defendant, after excepting that the petition failed to state a cause of action, admitted that the accident had occurred at the place alleged but denied that Walker had given any signal of his intention to turn to his left into the side street, and alleged that the driver of his car had given a signal of his desire to pass the Walker car and that as he turned to pass Walker had, without any warning or signal, turned his car directly in the path of defendant’s ear.

The evidence, as usual, is conflicting, Walker stating that he had given a signal of his intention of turning into the side street and that he did not hear any signal given by the driver of defendant’s car, while the driver of defendant’s car stated that he had given a signal as alleged, and that Walker had turned to the right, causing him to believe that his signal had been heard, and that as he was attempting to pass, Walker had suddenly and without giving any signal, turned to the left in the path of defendant’s car.

The plaintiff carried the burden of proof, and conceding that Walker gave a signal of his intention to turn to the left across the roadway, his statement that the signal was given as he was turning, and the evidence not indicating that the driver of defendant’s car could have avoided the accident or that he was driving at an illegal rate of speed shows, we think, that the signal was not timely given.

Walker was driving on a street where he was bound to anticipate the presence of other vehicles, and although there was not offered in evidence any ordinance requiring Walker to give any signal before changing the course of his car or turning to the left across the roadway he was bound to take notice of the law requiring that passing vehicles should pass to his left and ordinary care required that he should give timely warning before attempting to turn so that he would not place his car in danger of colliding with passing cars being operated with ordinary care, and the evidence establishing that Walker did not exercis'e such ordinary care, plaintiff cannot recover.

The judgment appealed from is affirmed.


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    No. 3401
    Second Circuit
    WHITE v. MYANE
    (March 12, 1929. Opinion and Decree.)
    A. S. Drew, of Minden, attorney for plaintiff, appellant.
    Mclnnis and Campbell, of Minden, attorneys for defendant, appellee.
   STATEMENT OF THE CASE.

REYNOLDS, J.

The purpose of this suit was to reform the description of immovable property sold by plaintiff to defendant contained in the act of sale.

Plaintiff alleged that it was his intention to sell and defendant’s to buy a half acre of land in the form of a parallelogram having a width of 105 feet on its front and rear sides and a def>th of 210 feet on its other two sides, beginning at the intersection of an alley 12 feet wide separating the property sold from property of R. L. McComas and running northward along the east side of the alley 210 feet, thence eastward, parallel with Marshall Street, 105 feet, thence southward, parallel with the east side of the alley to the north side of Marshall Street, and thence westward, along the north side of Marshall Street, to the alley, the point of beginning; and that through mutual error of himself and the defendant and inadvertence on the part of the draftsman of the act of sale the property was described in the act as—

“Beginning at the southwest corner of J. A. White place in the city of Minden, Louisiana, which point is located at the intersection of Marshall street and an alley 12 feet wide between the property herein conveyed and the property owned at this time by R. L. McComas; from this point run northerly, parallel with alley, 310 feet; thence easterly, at right angles 155 feet; thence southerly, parallel to the first line, 310 feet to Marshall street; thence westerly, along Marshall street, 155 feet, to point of beginning. Containing one-half acre, more or less.”

The defendant denied that there was any error in the description and alleged that it exactly described what he intended to buy and plaintiff to sell.

On these issues the case was tried and there was judgment rejecting plaintiff’s demand and he appealed.

OPINION.

Plaintiff testified positively that it was his intention to sell and defendant’s to buy a half acre, of ground of the dimensions and located as described in his petition.

Defendant, on the other hand, testified equally as positively that what he intended to buy and plaintiff to sell was a strip of ground having a front of 155 feet on the north side of Marshall Street with a depth of 310 feet between parallel lines and with its western boundary coincident with the east side of an alley separating the property bought from property owned by one R. L. McComas.

The burden of proof was on the plaintiff to prove the error alleged, and his testimony being set off by that of the defendant and not corroborated by the testimony of any other witness or by the circumstances he has failed to discharge that burden.

Plaintiff urges in - support of his testimony that after the sale a fence was built between the land he had intended to sell defendant and the remainder of his property, and says that it was erected as a division fence.

As to this fence defendant testified that it was not intended as a division fence but a temporary one and was erected to keep plaintiff’s chickens out of defendant’s yard.

The evidence conclusively shows that the fence was distant between 185 and 186 feet north of the north side of Marshall Street, and therefore it had no corroborative value. To have such value it would have had to have been on an east and west line 210 feet north of the north side of Marshall Street.

A. J. Watts and S. P. Halburton were permitted to testify to certain facts over plaintiff’s objection. Their testimony was strongly corroborative of defendant’s that the deed correctly described what he intended to buy and plaintiff to sell. It is not necessary for us to consider whether their testimony was admissible or not, as we are of the opinion that plaintiff failed to make out his case. The character of plaintiff’s intelligence as disclosed by the testimony does not make it probable that he could have erred as he says he did.

The trial judge, who saw and heard the witnesses testify, gave effect to defendant’s contention. It was purely an issue of fact. We find no error in his conclusion, and the judgment appealed from is therefore affirmed.


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    No. 422
    First Circuit
    GIORDANO v. GAUDE
    (March 6, 1929. Opinion and Decree.)
    L. V. Cooley, Jr., of Slidell, attorney for plaintiff, appellant.
    A. S. Burns, of Ponchatoula, attorney for defendant, appellee.
   ELLIOTT, J.

An automobile belonging to Bennie Giordano, while being driven by his son Bennie Giordano, Jr., and another, belonging to E. J. Gaude, while being driven by his son Bruce Gaude, both of whom were minors, collided with each other on the Jackson Highway in the first turn out of the road, near Hammond. The plaintiff claims that the collision was entirely due to the fault of the driver of defendant’s automobile and that he is entitled to recover of him $507.94 as damages to his automobile on said account.

The defendant for answer denies that his son was at fault, alleges that the collision was entirely due to the fault of plaintiff’s son and claims of plaintiff in reconvention $11.00 as damages to his automobile as a result of the same. Plaintiff’s demand was rejected and defendant’s demand in reconvention against him was allowed.

The plaintiff has appealed.

The court fixed the amount of surety for the appeal at $20.00. The only effort at compliance with the order on the subject of surety, that we find in the record is a letter written by plaintiff’s attorney to the Clerk of Court at Amite, La., dated February 6, 1928. This letter states to the Clerk of Court that there is in his hands $26.00 belonging to the plaintiff and that it will be well when he prepares the record for the appeal, to state in his certificate to the transcript that the sum of $20.00 is in his hands, serving in lieu of the ordinary bond. The certificate bears, date March 2, 1928, and contains no statement such as the letter suggests. The question of surety for the appeal is not mentioned in the brief of appellee. There is no motion to dismiss, so .we assume that the sum of $20.00 is in the hands of the Clerk of Court for the purpose stated.

Plaintiff’s son had been to Independence and was returning to Slidell. His road was through Hammond. As the road leading southward from Independence nears Hammond, a road turns out of the main north and south road and leads in an easterly direction toward Hammond. This road turning toward Hammond and leading thence on to Slidell is the route which plaintiff’s son was following. Right in the corner of the road, made by this road turning toward Hammond, there is a building with yard, fence and tall shrubbery, which prevents anybody going south from seeing an automobile coming from Hammond as it approaches the junction with the main north and south road because as to him, it is behind this building, etc. The party coming from Independence cannot see a party coming from Hammond, until he gets to the place where the road turns in that direction. The same situation prevents an automobile coming from Hammond from seeing the approach of an automobile from the direction of Independence beyond the turn, because the building, etc., is in between them. This turn in the road is therefore a dangerous meeting place for automobiles, and every driver as he comes to it, no matter whether coming from Hammond or going there, or going on southward, or northward, should slow down and get his automobile well in hand until the turn has been made or. passed.

There is another building with a filling station in front of it, situated close up to and on the right hand side of the road going south, immediately opposite the place where the road makes this turn. A person standing in front of this filling ■ station has a clear -view up the road toward Independence, east toward Hammond, and southward along the road’s continuing course in that direction. A witness on whose testimony we largely rely was standing in the front part of this filling station and saw the approach of plaintiff’s son from the direction of Independence and that of defendant’s son, from the direction of Hammond, and that they were going to meet each other in the turn. This witness has no apparent interest in the suit and he estimates the speed of plaintiff’s car, as it came to the turn at about 40 miles an hour, which was as fast as the make of car he was driving could run. The evidence shows that a heavy rain was falling at the time. Plaintiff’s son claims that he blew his horn as he came up to this turn in .the road and slowed down to about 25 or 30 miles an hour. His idea for blowing his horn at the time was that anybody from Hammond and behind the house on his right would hear it and get out of the way. He may have done as he said, but the rain and the noise of his car prevented his horn from being heard. But according to the evidence he did not perceptibly slow down, until he reached and commenced to make the turn, and then it was - too late, as he had rendered a collision with defendant’s car, which had also entered the turn and was turning southward at the same time that plaintiffs car was turning eastward, inevitable. Plaintiff’s son contends that defendant’s car hit him, but we are satisfied from the evidence on the subject that plaintiff’s car did the striking. And we are further satisfied that the collision was due to the speed of plaintiff’s car at the time; that it was 'being driven, as it entered and commenced to make the turn at a speed that was heedless and recklessly fast at that place, and due thereto, it was beyond control. We think the collision was entirely due to the fault of plaintiff’s son and that if he had been driving with his car under proper control, there would have been none. As for the car belonging to defendant, we are satisfied that it was being driven at the time at a moderate speed, with due care for the dangerous place and the rain that was falling, that the car was under proper control, and that as to him the collision was unavoidable.

The judgment appealed from is correct.

Judgment affirmed. Plaintiff and appellant to pay the costs in both courts.


author: LECHE, J.

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    No. 401
    First Circuit
    SMITH v. TODD ET AL.
    (February 13, 1929. Opinion and Decree.)
    (March 6, 1929. Rehearing Refused.)
    Thos. M. Burns, and Jas. T. Burns, of Covington, attorneys for plaintiff, appellee.
    Lindsay McDougall, of Covington, attorney for defendant, appellant.
   LECHE, J.

Defendants filed their petition and went into voluntary bankruptcy on October 1,’ 1925, and they obtained a final discharge' in March, 1926. Plaintiff, who held three notes made and subscribed by defendants, was not placed on the list of creditors in the schedules which accompanied defendants’ application to be discharged in bankruptcy, nor was he notified of such application.

He brought the present suit to recover the amount of his claim represented by the three notes, and the defense is that although his name was not listed on the schedules in bankruptcy and no notice was given' to him, his claim was discharged because he had actual knowledge of the bankruptcy proceedings.

The only contested question in the case is whether plaintiff had actual knowledge of the bankruptcy proceedings. This is conceded by Both parties to be the only issue in the case.

The law is that a debtor is discharged of liability for a particular debt in a bankruptcy proceeding, even where such debt is not carried on' the schedule and where such creditor is not expressly notified, when it appears that the creditor has had actual knowledge of the proceedings, but that such knowledge must have existed in time to avail the creditor of the benefits of the law—in time to give him an equal opportunity with other creditors—not a knowledge coming so late as to deprive him of participation in the administration of the affairs of the estate, or to deprive him of dividends; knowledge not acquired by the creditor until after discharge, though in time to prove his claim and to move to revoke the discharge,' is not sufficient. 3 R. C. L. p. 337; Birkett vs. Columbia Bank, 195 U. S. 345, 25 S. Ct. 38, 49 L. Ed. 231.

As a matter of fact plaintiff swears positively that knowledge of the defendants’ bankruptcy proceedings only came to him a few days before he filed the present suit. The suit was filed March 20, 1928. There is no reason suggested in or supported by the note of evidence, why this statement of plaintiff should be questioned or its correctness impugned. The presumption arising from the fact that notices of bankruptcy appeared in the local newspapar at Covington, in the Parish of St. Tammany, where plaintiff resided, and that knowledge was thus brought to plaintiff, was destroyed when it was shown that plaintiff was absent from home and out of the State when such publications appeared.

Admitting that the burden of proof rested upon plaintiff to show absence of knowledge, a question upon which we express no opinion, we believe nevertheless that plaintiff has shown that he did not have the actual knowledge required under the bankruptcy law (11 U. S. C. A.) to justify the discharge of defendants from liability. Such was the finding of the trial judge and we agree with him.