author: Egan, J. Todd, J.

text:
    No. 6828.
    Auguste Reichard vs. F. Michinard et al.
    On the Motion to Dismiss.
    The defects in the Transcript not being attributable to Appellant, the Appeal should not be-dismissed.
    In a suit for the balance remaining due on a mortgage note after seizure and sale of tbe mortgage property, Defendant cannot plead such defences as this: that the property did not sell for its full value because sold in block.
    Whether taxes due on the property were recorded or not, Defendant cannot recover the amount paid for them by the sheriff out of the price of sale.
    APPEAL from the Fifth District Court, parish of Orleans. Rogers,. J.

      H. T>. Ogden for Plaintiff and Appellee:
    Plaintiff obtained order of seizure and sale on mortgage note. The property was sold, and was insufficient to pay plaintiff’s claim, and the balance due is $1122 82. This suit is for this balance. The only questions are: 1st, Was the sale in block legal? 2d, Was the sheriff or the plaintiff authorized to pay the taxes due on the property ?
    We think that we have shown conclusively that, under the facts, the sale in block was legal and cannot now be attacked; and 2d, that it was the duty of the sheriff to see that the taxes were paid.
   The opinion of the Court was delivered by

Egan, J.

The motion to dismiss this appeal is based upon the absence from the transcript of certain documents offered in evidence in the court below, which have been since supplied under certiorari. The date of the writ of seizure and sale is an evident clerical error, as appears from the sheriff’s return and -the date of reception and notice of' the writ therein named. This indicates carelessness in the clerk who made out the transcript; but the error is not sufficiently material to affect the merits of the controversy, and is in no way attributable to the appellant.

The motion to dismiss is overruled.

On the Merits.

F. Michinard for Defendants and Appellants:

Slrst — Art. 676, C. P., is framed with, direct reference to execution sales to he made under ap* praisement, and not to sales in which appraisement has been waived.

•Second — The unrecorded privilege for State and city taxes which have accrued before the execution of a conventional mortgage in favor of a third person, does not prime the latter’s right of preference.

"Third — In such case, the latter, instead of suffering the unrecorded taxes to be paid, should take steps to assert his priority.

The opinion of the Court was delivered by

Todd, J.

The plaintiff being the holder of a promissory note executed by the defendant, F. Michinard, and secured by mortgage, caused the mortgaged property to be sold under executory process on the 13th July, 1874. After paying the taxes on the property, costs, etc., there remained unpaid of the mortgage debt, according to the sheriff’s return, on the writ of seizure, $1122 02, for which balance the present suit was ■brought.

The defense is:

1st. That the sale of the mortgaged property, which consisted of •certain lots and the buildings thereon, in the City of New Orleans, was illegal because sold in block.

2d. That neither the sheriff nor the plaintiff was authorized to pay the tax-bills, and that the legal costs and charges are excessive and enormous, and not justly due by the defendant.

Judgment was rendered for the amount claimed, which was subsequently reduced by $7 50 remitted, and from this judgment the present appeal was taken.

First. The entire property sold was included in one act of mortgage, to foreclose which the sale was made. There is no evidence in the record to show that the defendant objected at the time to the sale in block, or asked that the lots be sold separately. The sale of the mort.gaged property in block, in the absence of any objection to such mode of sale or demand on the sheriff to sell it in distinct and separate parts, was legal and proper. 10 B. 473, 474. The objection coming at this late day, and in this proceeding, cannot avail the defendant.

It might be proper to urge objections of this character in a direct action to annul the sale, but they cannot be considered in such an action as the present one, where no relief looking to the nullity of the sale is asked. If it be true that the sale in block caused the property to be sold at a sacrifice, as charged, the evidence in the record does not enable us to make an' estimate of the loss or damage sustained from this cause.

Second. The defendant claims credit for $360 43, which he alleges ■was the amount applied by the sheriff to the payment of taxes as re-tamed by him out- of the proceeds of the sale for that purpose, and which he avers was misapplied and should have gone to his credit on the mortgage debt, for the reason that there had been no registry made of the tax-bills prior to the inscription of the mortgage, and that, therefore, the mortgage primed the debt for taxes, and was entitled to be paid in preference thereto.

There is no evidence in the record to show that the defendant at the time opposed such application of the funds derived from the sale; nothing to show that he did not acquiesce in such application or distribution, and no complaint is heard from him until it is set up in his answer to this suit, which was filed several months after the sale. Nor is there any doubt but that the taxes were owing by him, whether they imported a superior privilege or not on the property. They constituted at least an obligation against him. One thing is certain, that the plaintiff received from the sale of the mortgaged property only $313 90,. leaving an apparent balance on his debt to the amount of the judgment rendered in the court below. And it is equally certain that the residue of the proceeds, after satisfying the costs, was appropriated to the discharge of a debt for taxes on the property.

Notwithstanding this, his proposition is virtually that he is entitled to recover this sum thus applied to his benefit, and to the payment of his debt from the plaintiff, or that the plaintiff must lose it.

We cannot assent to this proposition.

Section 3615 of the Revised Statutes provides that:

“Hereafter neither recorders, sheriffs, notaries, throughout the-State, nor other persons authorized to convey real estate by public act, shall pass or execute any act for the sale, transfer or exchange of any real estate situated within said parish, unless the State, parish and municipal taxes due on the same be first paid, to be shown by the tax collector’s receipt or certificate to that purpose.”

And the section next following imposes a penalty for a violation of this requirement.

These provisions were, doubtless, the authority under which a part of the funds were applied by the sheriff to the payment of all taxes on the property due and exigible at the time of sale.

Whether under these express provisions the sheriff was authorized in this case to disregard their mandate and make a different imputation, it is not necessary for us to decide. It is sufficient to say that under the facts and circumstances recited, and for the reasons given, we do not think that the defendant is entitled to recover the amount in question from the plaintiff, or have it taken from the mortgage debt.

We see no error in the judgment, and it is, therefore, affirmed with costs.-


source: Caselaw Access Project

author: Levy, J.

license: Public Domain

text:
    No. 8219.
    Board of School Directors of the Parish of Madison vs. A. V. Brown et al.
    The surety on an official bond cannot pretend that he is not liable because the law requires that such sureties should be residents of the State and he is not.
    Sureties on a bond, binding themselves and each of them, are liable in solido.
    The failure of the Hoard of School Directors to require regular accounts and settlements from their treasurer, does not discharge the sureties of the latter.
    The Hoard of School Directors have the right to sue on the official bond furnished by their treasurer, though it is made payable to the Governor of the State.
    APPEAL from the Eighth Judicial District Court, parish of Madison. Beloney, J.

      A. L. Slack and J. B. Stone, District Attorney, for Plaintiffs and Appellees:
    Eirst — A surety on an official bond is estopped from pleading that he had not the requisites of a surety at the time he signed the bond. 18 An. 64; 10 R. 413 j 30 An. 584-5.
    Second — Article 3042, R. C. C., and the acts amending the same, are for the protection of the. beneficiary of the bond, and cannot be invoked by the surety to set up his incompetency. A non-resident is bound. 30 An. 584-5 j 10 R. 413; 2 EC. D. 1542, No. 2 j 30 An. 593 ; O. P. 165, Nos. 5 and 7.
    Third — A surety, who, as a consideration for signing the bond of his principal, is made the depositary of the trust funds of his principal, is doubly bound in law and equity to make good any defalcation. He is in the wrong himself and equally guilty.
    Eourth — Solidarity is of the essence of a contract of suretyship. 26 An. 625.
    Eifth — The “ Board of School Directors ” is a corporation created by law, with “powers to sue and be sued.” Extra]Session Acts 1870, p. 17. 28 An. 739.
    Sixth — A school treasurer’s bond is properly made payable to the Governor. If he is not the proper payee, his assignment of the bond to the School Hoard is all that is sufficient. The law designates no one as the payee of such a bond, and whether in favor of A or H, or no one, is of no consequence, if the conditions have been violated and the beneficiaries are suing thereon.
    . Seventh — A school treasurer is not per se a parish officer, and the president of the police jury is not the payee or beneficiary of his bond, for the reason he is the officer of a distinct corporation.
    Eighth — A surety who sets up as a defense to a suit on a bond that his principal was a defaulter, furnishes the best reasons why he should be bound; for it is an admission that the conditions of the bond have been violated.

      J. G. Seale and JS. H. Farrar for Defendants and Appellants :
    A bond executed under a particular law must conform in all respects to the provisions of the law, or the sureties will not be bound.
    The bond' of a treasurer of a School Hoard must be payable to the district or parish board, and not to the Governor of the State. Act of 1870, Extra Session, p. 17, and Acts of 1871, p. 42, amending the same.
    The bond of all State officers must be payable to the Governor, and of all parish officers to the president of the police jury. R. S. Sec. 351.
    A party required to furnish security, either judicial or under the provisions of law, shall be required to furnish surety residing in this State. O. O. 3042, 3064 j R. S. Sec. 351.

      The Superintendent of Education is the proper person to sue on the bond of a treasurer of a School Board, in the name of the board, in case of a breach of the conditions of the bond. Acts of 1870, extra session, page 17.
    An obligation in solido is not presumed, it must be expressly stipulated, except where an obligation vn solido takes place of right by virtue of some provision of the law. O. O. 2093, As a party binds himself so shall he be bound, applies to conventional obligations, but is not applicable to official bonds. H. D. p. 1023, No. 6, and authorities there cited.
    Parol evidence of the acknowledgment of a debt of over five hundred dollars, made by a party since deceased, proved by only one witness, is not sufficient to establish a claim. O. C. 2277; 16 An. 255, 168; 20 An. 15 ; 18 An. 617; 19 An. 326.
    Plaintiff should make his case certain; to make it probable is not enough* 18 An. 597; 15 An. 268 : 22 An. 378; 19 A. 121, etc.
   The opinion of the Court was delivered by

Levy, J.

The Board of School Directors of the Parish of Madison brought suit against A. V. Brown, late Treasurer of the said Board, for the recovery of the sum of $23,000 31, in which amount they allege he is indebted forjjmoneys received by him in his said capacity, and for which he has not accounted. They also seek to recover from B. R. Thomas (now deceased), Nathaniel Hoggatt and Moses Feibelman, in solido, the sum of $6000, as sureties of said Brown on his official bond. Mrs. Virginia Thomas, individually and as tutrix of her minor children, was, on the death of B. R. Thomas, made a defendant in this suit.

Mrs. Thomas pleads that her deceased husband, B. R, Thomas, was a resident of Mississippi when the bond was signed by him, and his name and signature are, therefore, surplusage, because the law requires that sureties on legal bonds should be residents of the State; that, therefore, he could not become a legal surety, it being in contravention of a prohibitory law. And if that exception is overruled, she pleads, in the alternative, the general issue, and avers that said bond was a joint obligation and not in solido, and the sureties, if liable at all, were only bound each for one-third of the bond. She denies that Brown was in default, but if he was, it was the fault of plaintiffs in not keeping a proper supervisory control over their funds, and neglecting to require their Treasurer to render an account from time to time and settle same, as it was their duty to do, and that thereby the sureties have been discharged. Hoggatt pleads the general issue, and avers that he was induced to sign the bond by B. R. Thomas, who said he would protect or indemnify him.

Mrs. Thomas also in her amended answer pleads:

1st. That plaintiffs show no cause of action.

2nd. That in their so-called corporate capacity, plaintiffs had no right or authority, under the statute of Louisiana, to institute or maintain this action.

3rd. That said corporation had no property in the so-called bond, as appeared on its face, and it could not be sued on by them.

4th. That the bond sued on was not given in accordance with law, and was not intended by the sureties as a legal bond given to the District as a guaranty of the faithful performance of official duty by Brown as Treasurer.

5th. She answers further, that this suit is the result of a wicked and collusive conspiracy to obtain money from the succession of Thomas wrongfully, by and between said Brown and his co-members of said so-called corporation.

These exceptions were referred to the merits. Mrs. Thomas and Hoggatt also filed exceptions claiming the benefit of division. Brown having died, his curator was made party.

Judgment was rendered in the lower court against the curator of Brown for $8835 05, and against the sureties in solido for $6000, with interest, from which judgment Mrs. Thomas and Hoggatt have taken this suspensive appeal. Eeibelman and Estate of Brown are appellees.

There is no doubt that B. R. Thomas was a resident of Mississippi when he signed the bond, or rather at the date of the bond, and we think that evidence to prove this was properly admissible. It is true that the act of the Legislature, embodied in the Revised Statutes, requires that sureties on legal bonds should be residents of the State, but we are of opinion that while the non-residence of a person would justify the beneficiary in objecting to the acceptance of a bond with such surety, the surety himself cannot be relieved from the obligations of his suretyship on account of his being a non-resident. See 2 Hen. Dig., p. 1542, No. 2, and authorities cited; 30 An. 593.

By the terms of the bond the parties thereto bind themselves and each of them. This constitutes a solidary obligation.

Mrs. Thomas has accepted the community; the debt, if it exists, is a community debt, and she and her children, of whom she is tutrix, are bound therefor.

The bond sued on was made payable to the Governor of the State, but the condition was that the principal obligor should well and faithfully discharge and perform all the duties incumbent on him as Treasurer of the School Board of the Parish of Madison. The School Board of the Parish of Madison was the beneficiary of the bon'd; it, under legislative enactment, had the right to sue and be sued. The act requiring the treasurer to give bond, does not declare to whom it should be made payable; it does, however, prescribe the duties of the Treasurer. The School Board, in whose behalf and interest the bond was given, has the right to sue for its enforcement or the violation of its conditions.

Defendant urges that the failure to require regular accounts from the Treasurer and regular settlements of these accounts, operated as a discharge of the sureties. We can find no merit in this defence. Mere-failure to sue does not operate such discharge. We find no error in the rulings of the lower court or in the judgment rendered.

The judgment appealed from is affirmed with costs.


author: Fenner, J.

text:
    No. 7769.
    Justilien Oubre vs. The Town of Donaldsonville.
    Municipal bonds issued in pursuance of legislative authority and negotiable in form, are not subject to equities as to consideration or otherwise, in the hands of a bona fide holder for value before maturity.
    Act No. 69 of the Legislature of 1861, authorizing the Town of Donaldsonville to issue the-bonds sued upon in tnis case, and the law of 1853, now section 2448 of the Revised Statutes, prohibiting police juries and incorporated towns and cities to contract debts-without providing the means of paying them, are notinconsistent, and the later enactment-did not repeal the previous one. Therefore, the Town of Donaldsonville is only bound on said bonds to the extent of the provision made for the payment of the same, by the levy of an annual tax of $1000 on the real estate of said town, during ten years.
    The objection raised by Defendant, that such a tax is not uniform and, therefore, is uncon» stitutional, is not tenable. The point fully examined.
    APPEAL from the Fourth Judicia.1 District Court, parish of Ascension. Duffel, J-

      B. K Sims for Plaintiff and Appellee.

      Nieholls & Pugh for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Plaintiff, as the holder of fifty bonds of the town of Donaldsonville, for $100 each, negotiable in form and acquired by him for valuable consideration and before maturity, brings this suit against the said defendant for the amount thereof with the unpaid interest. He avers that the said bonds were issued by the Mayor and Selectmen of the town, in virtue of legislative power conferred upon them to that effect by Act of the General Assembly, No. 69 of 1861 ; that in the ordinances under which the bonds were issued, provision was made for the payment of annual interest and also for the levying and collection of an annual tax of one thousand dollars upon all the real estate of said corporation, for ten years, to form a sinking fund to pay and redeem said bonds.

He prays for judgment against the town for the whole amount claimed, and for further judgment ordering the .tax collector of the town to collect forthwith the said special tax of $1000 for the several years for which it had not been collected and to apply the same to pay and satisfy the judgment herein.

Defendant opposes numerous defenses, of which, in this case, we find it necessary to consider only the following, viz:

1st. That the bonds sued on are without consideration, because given in settlement or renewal of prior bonds or evidences of debt which were illegal and absolutely null and void; because, at the time of issuance of the same, no provision was made in the ordinance creating the debt for the payment of the principal or interest thereof, as required by law.

This defense cannot avail, in the present ease, where the plaintiff is not the party to whom the bonds were originally issued, but is alleged and proved to be a bona fide holder, for value, acquiring the bonds, negotiable in form, before maturity.

Against such holder of such bonds, the only defense permissible is the want of power to issue them, and they are not subject to equities as to consideration or otherwise.

See numerous cases cited in Dillon on Munic. Bonds gg 5 and 7.

Dillon on Munic. Corps, gg 405, 415, 416.

Daniell on Nego. Inst. § 1500. State ex rel. Moore vs. City, 32 A. 46.

By Act No. 69 of 1861, the General Assembly authorized the Mayor and Selectmen of Donaldsonville “to issue bonds of said town, for such sums, not exceeding 1525,000, as in their judgment may be required for the interest of said town.”

It is not disputed that these bonds were issued in pursuance of this legislative authority. Purchasers of such bonds, after issuance and before maturity, were not bound to inquire beyond the existence of the power and its exercise by the corporate officials designated. They have no concern with the motives or considerations which guided these officials in the exercise of the discretion vested in them by the legislative power.

2d. They urge that the bonds sued on are void, because, in the ordinance creating the debt, the means of paying the principal and interest thereof were not fully provided. From 1853 to the present time the following provision, now embodied in Section 2448 Revised Statutes, has been the law of this State ; “ The police juries of the several parishes, and the constituted authorities of incorporated towns and cities, shall not hereafter have power to contract any debt or pecuniary liability, without fully providing, in the ordinance creating the debt, the means of paying the principal and interest of the debt so contracted.”

By the very terms of this provision, it is a limitation upon the power of police juries and municipal authorities, and is, therefore, operative as well against third persons holding negotiable municipal bonds as against the original holders thereof. Frequent adjudications of this Court have placed it beyond controversy that debts contracted by municipal authorities in violation of this prohibitory law are stricken with nullity and are incapable of judicial enforcement.

29 A. 677 ; 23 A. 235 ; 24 A. 458; 26 A. 60; 28 A. 614; 30 A. 40, 41, 462]; 31 A. 180 ; 28 A. 243; 23 A. 251, 19 ; 10 A.

Dillon on Mun. Corp. 372, 381.

We are not disposed to construe the provision so strictly as to say that where some provision is made, the contract will not be valid to the extent of such provision; but it will be valid only to such extent.

Neither would we be so technical as to hold that if contemporaneous provision be made even in a different ordinance from that creating the debt it would not be a sufficient compiiance with the statute. In such case we should consider the two ordinances as substantially one.

After a close scrutiny of all the ordinances and resolutions of the corporate authorities connected with the issuance of the bonds, of which those herein sued on are a part, we And no provision whatever made for the payment of either principal or interest on these bonds, except the following, viz : “ that an annual tax of one thousand dollars be levied on all the real estate of the corporation of the town of Donaldsonville, and that the same be set aside to .form a sinking fund to pay the said consolidated debt.”

The liability of the town must be clearly restricted within the limits of this provision, unless either these bonds can be removed from the operation of section 2448 Revised Statutes, or unless it can be shown that they are entitled to the beneAt of some other provision validly made for their payment.

It is suggested that inasmuch as 'the Act of 1861, authorizing the issuance of these bonds imposed no condition requiring provision to be made for their payment, they were excepted from such condition. This position is utterly untenable. The Act of 1861 was a special law and did not repeal the general law of 1853 and 1855, now Sec. 2448 R. S. There is no express repeal, and there is no inconsistency from which a repeal can be implied. R. O. C. Art. 23. Municipal corporations and police juries have no right to issue notes or bonds at all, without special legislative authority. 23 A. 191, 235. The Act of 1861 was intended solely to supply this authority. The power, however, when granted, fell under the control of the general law of the State as to the requisites to its valid exercise. Suppose a special law had granted the town the power of executing mortgage notes upon certain immovable property belonging to it, would that havq dispensed the town from observing the provisions of the general law establishing requisites to the validity of mortgages ? Clearly not.

See Destrehan vs. Police Jury, 31 A. 180.

It is next contended that, besides the provision made at the time of issuing these bonds, there existed provisions for the prior existing obligations taken up by the bonds, which continue in force for the payment of the latter.

To this the answer is three-fold :

First. The record does not enable us to trace any connexion between the bonds here sued on and any other pre-existing obligations of the town, except the corporation note or bond dated April 3d, 1861, issued in pursuance of the resolution or ordinance of January 1st, 1881, which was itself given in renewal of a prior note issued under an ordinance or resolution of March 29th, 1860. In neither of these ordinances was any provision whatever made for their payment.

Second. If we should undertake, on the simple assurances of counsel and without legal .evidence, to trace the consideration of these obligations still farther back, we should still find no provisions made at any time except appropriations or pledges of certain revenues of particular years long since exhausted or otherwise disposed of, and abandoned by creditors'in the acceptance of new obligation's.

Third. We regard the transaction between the town and the creditors under which the present bonds were issued, ,as a complete novation of the former debt, and a consequent surrender of former securities if any there were. The old notes were surrendered, cancelled and marked “paid by bond.” These bonds stand as a new debt with no provision for .its payment except that made at the time of its creation.

14 A. 54 ; 6 N. S. 377 ; 2. N. S. 144 ; 2 La. Ill ; 16 La. 140; 4 A. 543; 2 A. 179 ; 26 A. 345.

3rd. It is contended that the provision made for the redemption of these bonds can have no effect, because it is a tax on real estate only, and, therefore, unconstitutional.

■ The law now embodied in section '2448, Revised Statutes, was not intended as a tiap to catch unwary creditors. Its motive was simply to restrain municipal extravagance by requiring corporate officials, at the moment of contracting debt, to contemplate the necessity of providing for its payment, and, by requiring such actual provision, to keep the taxpayers advised of the burdens to which they were being subjected by their official agents, so that they might hold them responsible therefor.

Its effect is much less radical than that of the constitutional provision touching the city of New Orleans, discussed in our recent decision in the case of the Taxpayers’ Association vs. Mayor. The latter disabled the city from contracting a debt at all, and we held that claims against her were not, therefore, debts, but were mere claims against the revenues appropriated for their payment.

The same result does not follow from section 2448. Debts contracted, when provided for, become, to the extent of such provision, not only claims against the provided fund, but actual and valid debts of the corporation.

In the instant case, the corporation actually made provision to the extent of $1000 per annum, for ten years, to be raised by taxation.

There can be no doubt that, at the time, the corporate authorities and the creditors and all concerned, honestly believed, and had reason to believe, that the tax directed to be levied on real estate alone, was a valid and constitutional tax. Such had been the interpretation of prior constitutions. 2 An. 182; 3 An. 673; 10 An. 398, 402, 735; 8 An. 341; 9 An. 562.

The Constitution of 1864 had recently gone into effect, and its somewhat different provisions on the subject of taxation had not received any different judicial interpretation on this particular question.

The original charter of defendant, passed in 1846, conferred the power of taxing real estate separately; and even the new charter, granted in 1870, conferred the same power.

Were we now to decide that the corporate authorities and the creditors were mistaken in their honest belief that the particular provision made was constitutional, we would not, on that account, feel justified in holding that the debt of the town, contracted in good faith, and, to the extent of the provision, in intended conformity with law, was stricken with nullity. Justice would require that an honest error, shared by both parties, should not operate to the advantage of one and the destruction of the other. We should hold that the corporation was bound to supply- the equivalent of the provision made, and to substitute a constitutional tax for the one supposed to be, but discovered not to be, constitutional. .

We are not, however, prepared to say that the provision made is necessarily unconstitutional, under any construction. It only required that “ an annual tax of one thousand dollars be levied on all the real estate of the corporation.” This does not exclude the idea that this one thousand dollars might have been a part of an equal and uniform tax levied on all taxable property, real estate as well as other. Nothing prevented the corporation from appropriating to a particular purpose the taxes derived from a special class of taxable property.

This view renders unnecessary, and we purposely avoid, any expression of opinion on the vexed question, whether or not the article of the Constitution applies to municipal corporations. This question, after various contradictory decisions, is now pending before the Supreme Court of the United States in the important case of the State ex rel. Southern Bank vs. Mayor, and we prefer to do nothing to anticipate or influence the decision thereof.

The record shows that the annual tax of $1000 for the first four years was duly collected and appropriated, and that, of the provision made, there remain uncollected only $6000, being the annual tax for the years 1871, 1872,1873,' 1874,1875 and 1876.

It also appears from the record that this provision was not made for the bonds held by petitioner alone, but was a common provision for all the bonds issued under the ordinance, of which the plaintiff’s were -only a portion. Of course he is entitled to his ratable share of the .provision.

In the absence of other interested parties and of complete evidence ■on the point, we cannot settle the amount of this ratable share so as to •give a money judgment therefor. We shall so frame our decree as to •settle the principles on which the amount is to be ascertained, and will •leave the lower court to make such orders in execution thereof by concursas or otherwise, as may be necessary for final settlement and distribution.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered by the lower court, it is now ordered, adjudged and decreed that the following be recognized and declared to be the amount remaining unpaid upon the bonds held by plaintiff and sued on in this case, to-wit: the sum of $7000, with five per cent, per annum interest on $400, from April 1st, 1872; with like interest on $400 from April 1st, 1873; with like interest on- $400 from April 1st, 1874; with like interest on $400 from April 1st, 1875; with like interest on $400 from April 1st, 1876; and with eight per cent. per annum interest on $5000 from April 1st, 1876; that he be recognized and declared to be a creditor of the defendant for his ratable -share of the six thousand dollars remaining unpaid out of the provision made for the redemption of the principal and interest of the bonds issued under the resolution of the Mayor and Board of Selectmen of the defendant, dated March 20th, 1866, said ratable share to be the proportion of said six thousand dollars which the amount •remaining unpaid on his bonds as above settled shall bear to the ■amount remaining unpaid on all bonds issued in pursuance of said resolution; and that the defendant be condemned to pay the amount of ■said ratable share.

It is further ordered that the tax collector proceed forthwith to ■collect the special tax of one thousand dollars levied by ordinance of March 20th, 1866, on the assessment rolls of 1871,1872, 1873, 1874, 1875 •and 1876 and to turn the proceeds over to the treasurer or proper authorities of the town of Donaldsonville, to be applied to the satisfaction of the debt due plaintiff according to the principles stated in this decree, and subject to the orders of the court a, qua, in execution thereof.

And that the costs of this appeal be paid by plaintiff and appellee, and those of the lower court by defendant.


text:
    Justilien Oubre vs. Town of Donaldsonville, Widow Viléor Dugas vs. Same, Victor Maurin et al. vs. Same,
    No. 7769;
    No. 7770;
    No. 7835.
   On Applications for Rehearing.

The opinion of the Court was delivered by

Fenner, J.

The position taken by counsel in these applications, that the provision for the redemption of the bonds sued on, which was enforced in o.ur decrees herein, covers an annual tax of $1000, to be levied not only during the ten years in which the bonds were running, to maturity, but to be levied continuously until the full payment of the bonds in principal and interest, is now presented to the Court for the first .time. It is inconsistent with the relief asked in the petitions filed by plaintiffs herein, and with the whole theory upon which the cases were argued by counsel on both sides — which substantially conceded that the provision made, so far as this annual tax was concerned, was confined to the ten years running between the date.and maturity of the bonds. It is too late now to set up a contrary claim.

If we felt any doubt as to the meaning and scope of the resolution providing for this annual tax, the construction put upon it by all the parties concerned, would be a safe guide in our own interpretation.

We are, however, satisfied, from the terms of the resolution itself, that such was its true purpose and intention, and that our decrees herein have awarded to plaintiffs all the relief to which they are lawfully entitled.

Rehearing refused.


text:
    No. 8207.
    Valmont Decoux vs. Pierre Lieux.
    The fact that defendant in a suit for damages for malicious prosecution, acted, under the advice of Counsel, is no excuse if the advice was given upon his misrepresentations of the circumstances of the case.
    The admission or proof that such defendant is an upright and honest man, incapable of making a false oath, is not inconsistent with the charge of malice.
    Malice may be inferred from the total want of probable cauáe.

      Probable cause means reasonable ground of belief, supported by circumstances sufficiently strong to warrant a cautious man in that belief, that the accused is guilty of the offense charged.
    The prosecutor may have been honest, and may have actually believed in the truth of the affidavit made by him, and yet be liable for damages, if he acted without reasonable canse.
    APPEAL from the Fifteenth Judicial District Court, parish of Pointe Coupée. Toist, J.
    O. O. Provosty for Plaintiff and Appellee : '
    In actions for malicious prosecution the burden of proof is on plaintiff to show both the want of probable cause and malice.
    Malice is presumed from the want of probable cause. Hennen Dig., p. 823, No. 6.
    Malice in law means an act done wrongfully and without reasonable and probable canse, and not, as in common parlance, an act dictated by angry feeling or vindictive motives. Jones vs. Nicholls, 3 Moore & Payne, 12.
    Probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense of which he is charged. Muns vs. Dupont, 3 'Wash. O. C. H., 31.
    The advice of counsel is not probable cause, where the counsel was not consulted bona ñde and all the facts were not submitted to Mm. Greonleaf, vol. 2, par. 459, Am. Lead. Cases, Hare and Wallace’s note, vol. 1, p. 223.
    In actions of libel, slander, and malicious prosecution proof of damage is not necessary to recover; the actual pecuniary damages can rarely be proved and are never the sole rule of assessment. Sedgwick on Measure of Damages, p. 39} 25 An. 175 ; 27 An. 219; 29 An. 172.

      Spencer & White for Defendant and Appellant:
    .First — Malice and want of probable cause are essential to recovery in a suit for a malicious prosecution — the rule is elementary.
    Second — The malice required “must be the result of bad feeling, joined with the knowledge of having no just cause of action.” 6 An. 373.
    TMrd — The admission in the record that the defendant “ is an upright and honest gentleman, and would not make a false oath for the purpose of persecuting any one,” necessarily excludes malice, and is, therefore, fatal to plaintiff’s case.
    Pourfch — The proof shows want of malice and fails to show want of probable cause.
    Piffch — The defendant acted under advice of counsel. 8 An. 12; 9 An. 219 5 11 An. 289.
   The opinion of the Court was delivered by

Fenner, J.

This is a suit for damages for a malicious prosecution.

The following is a summarized statement of' the facts.

Lieux had made a contract to furnish necessary supplies to one Patin to raise a crop on land cultivated by the latter in 1878, and advanced under said contract sixty-one dollars and forty-six cents, when, on his refusing to make further advances in the mode and to the extent desired by Patin, the latter applied to Mrs. E. L. Decoux, the wife of plaintiff, who also kept a store, and made with her another contract for advances under which he received further advances to the amount of about one hundred dollars. Mrs. Decoux was separate in property from her husband, and the store was kept in her name and for her account, though managed by her husband as her agent.

On the 10th of September, Lieux sued Patin before a justice of the peace and sequestered his crop of cotton, then in the field and ungathered. The crop was seized and placed in charge of a keeper.

Pending this seizure, Mrs. Deeoux filed a petition, before the same justice of the peace, against Lieux, and obtained an injunction restraining him and his agents from doing anything to prevent Patin from gathering his crop and from delivering it to her, Mrs. Deeoux.

After granting the injunction, the justice treated it as operating a dissolution of Lieux’s seizure, and issued his order releasing Patin’s ■crop, discharging the keeper, and restoring Patin to possession.

Patin, thereupon, proceeded with the gathering of his crop, hauled .a part of it publicly, and in the daytime, to a public gin in the neighborhood, where one bale was ginned and baled and delivered to the plaintiff, Deeoux, as agent for bis wife, who also publicly and in the daytime had it hauled to his wife’s store and deposited in the yard.

There seems to have been not the slightest attempt at concealment about any of th§se proceedings. The yard where plaintiff had the cotton deposited was the place where cotton received by the store was usually kept, and it was not hidden or made away with as might have been done.

Lieux, in the meantime, took proceedings to have the injunction dissolved, which was done on the 4th of October after all the above transactions had taken place.

Lieux swears that he was ignorant of the order of the justice of the peace releasing his seizure, discharging the keeper, and restoring Patin to possession. The keeper, however, testifies that he sliowed the order to Lieux when he received it.

However this may be, after the dissolution of the injunction, Lieux, finding the bale of cotton in possession of plaintiff, without any inquiry of either plaintiff or of Patin or of anybody else, so far as the record shows, as to how it came there, went before a justice of the peace and made an affidavit, to the curious effect, that “ one Aristide Patin did maliciously dispose of three bales of cotton while the cotton was under attachment, and that one of the bales was found in the possession of Yalmont Deeoux, the agent of E. Deeoux; wherefore, affiant prays that said Patin and Deeoux may be apprehended and held to answer this charge.”

On this anomalous charge, a warrant issued, plaintiff was arrested and brought before the justice, who, as a matter of course, discharged him.

Pour days afterwards, Lieux, without any further inquiry shown by the record, made another affidavit before the parish judge, distinctly and formally charging Patin with having stolen the cotton, and charging Decoux with the crime of receiving the cotton, knowing the same to be stolen, and again praying that they should be arrested and dealt with according to law. Plaintiff was again arrested, carried under arrest twelve miles to the court-house, where, without examination, he was released on giving bond to appear before the District Court. At the session of that court, the case was examined by the grand jury who returned “ not a true bill,” whereupon he was discharged by the court and his bond cancelled.

We have scrutinized this record most critically without finding a scintilla of evidence tending, in any manner, to justify the proceedings of Lieux in this prosecution.

The only pretense of excuse which he presents, is that he acted on the advice of counsel; but the testimony of his counsel shows that his advice was predicated upon a story related by Lieux, so completely at' variance with the truth that he advised him to prosecute Decoux, not for receiving stolen goods but for larceny. He informed his counsel that “ it was Yalmont Decoux who had taken this cotton while under seizure. * * That the cotton had been stolen, taken away, and abstracted from the seizure in the night-time,” etc. Common .sense indicates, what the law maintains, that the justification which a man derives, in legal proceedings, from acting on the advice of counsel, depends exclusively upon the correctness of the facts stated by him as the basis of his counsel’s opinion.

In this case, the representations of defendant to his counsel were so utterly unfounded, that the advice predicated thereon is not entitled to any consideration whatever.

It is manifest that, under the facts disclosed, Decoux had committed no crime whatever. The cotton belonged to Patin. His free use of it was only restrained so long as it was in custody under Lieux’s seizure. When that seizure was released by order of the court which issued the writ, and the cotton was restored to his possession, Patin had the perfect right to control and dispose of the cotton, and Decoux had the right to receive it, in payment of a just debt, without committing any crime.

Lieux seems to have had no cause whatever for believing Decoux guilty of the crime with which he charged him, except the bare fact that he was in possession of the bale of cotton. The very publicity of that possession and the. absence of concealment were badges of innocence, which should have put him on inquiry. The slightest inquiry would have developed the truth. The questioning of Decoux, of Patin, of the keeper whom he had left in charge of the cotton, of the constable or of the justice of the peace, of any person who might be expected to know the facts, would inevitably have demonstrated the falsity of his suspicions.

It is difficult to conceive of a case more completely lacking in either actual or probable cause. His conduct was rash, reckless and unreasonable, evincing an utter absence of that caution and inquiry which a man should employ before making criminal charges against his neighbor. The reputation and liberty of the citizen are privileges too precious to be left at the mercy'of such grossly inconsiderate proceedings as these.

There is found in the record a singular admission, that the defendant “is an upright and honest gentleman, and would not make a false oath for the purpose of persecuting anyone.”

Prom the connection in which this admission appears in the record, it was evidently made to avoid, the taking of testimony on that point, and is entitled to operate as a complete and conclusive substitute for such testimony. We cannot agree, however, with the learned counsel of defendant, that this admission is inconsistent with the existence of that malice which is essential to recovery in a suit for malicious prosecution.

The prosecutor may have been honest and may have actually believed in the truth of the affidavit made by him, and yet be liable in damages. To exculpate him, his belief must not only be honest, but also reasonable.

See 2 Greenleaf on Evidence, g 455, quoted with approval and applied in the very case relied on by defendant’s counsel, Barton vs. Kavanagh, 12 An. 332. We find the quotation made from the case in 6th An. to be taken from a dissenting opinion.

If there be a total lack of probable cause, and absence of grounds for reasonable belief in the truth of the charge, the very fact that the prosecutor is able to believe it on insufficient and unreasonable assumptions, would seem to be, in itself, rather evidence than rebuttal, of malice, considering the proneness of man readily to believe ill of those whom he dislikes. • -

There is not wanting in this.case evidence showing that therelations of plaintiff and defendant had not been of an amiable character tending to support the presumption of malice resulting from the entire want of probable cause.

It appears, also, from the statements of defendant’s own witnesses that, though honest, he was at times obstinate and unreasonable.

Nothing is better settled in our own, as well as in general jurisprudence, than that malice may be inferred from total want of probable cause, and that probable cause means reasonable grounds of belief supported by circumstances sufficiently strong to warrant a cautious man in the belief that the accused is guilty of the offense charged.

4 An. 377; 12 An. 53, 332 ; 9 R. 387, 418 ; 9 An. 219 ; 6 An. 577 ; 15 An. 421, 672 ; 29 An. 496 ; 4 Cush. 217, 238 ; 3 B. Mon. 4 ; 5 Bing. (N. C.) 722.

The uncharitable idiosyncrasies of individuals which enable them recklessly to give credence to base suspicions of their neighbor without inquiry and without reasonable grounds of belief, cannot protect them from responsibility for prosecutions thus wantonly instituted.

We fully recognize the lawful right, and even duty, of the citizen to set on foot criminal proceedings when he has reasonable grounds for believing an offense has been committed, and. also the injustice and impolicy of mulcting him in damages merely because the prosecution fails. But equally sacred is the right of every citizen to be protected from the wanton and irreparable injury inflicted by criminal prosecutions for offenses of which he is innocent and of which there was no rational ground for believing him guilty.

The crime of the fraudulent receiver of stolen goods and, in the agricultural districts, of stolen cotton especially, is one peculiarly odious and cowardly. To be publicly accused and brought before the criminal tribunals on such a charge must deeply wound and mortify an innocent man, and inflict an injury upon his character which an acquittal cannot wholly repair.

This case presents all the - elements of responsibility in damages in such cases, and we.cannot think the verdict of the jury, in awarding only one hundred and fifty dollars, has done justice.

That amount would scantily reimburse the plaintiff for the expense and trouble incurred in his just action for redress.

We act within the limits of the strictest caution in increasing the judgment to five hundred dollars.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended so as to increase the amount thereof to five hundred dollars, and that, as thus amended, the same be affirmed, the costs of this appeal to be paid by defendant and appellee.'

Rehearing refused.


text:
    No. 8212.
    H. McKnight vs. A. V. Ragan.
    The Courts have undoubtedly the right to inquire into, and pronounce upon the validity of the returns of election.
    As decided by this Court in the case of Duson vs. Thompson, 32 An., 861, irregularities in election returns do not per se vitiate the election ; and in default of such legal returns, extrinsic evidence should be resorted to, in order to ascertain and decree the real result of the election.
    The sworn officers charged by the law with the returns of election, are presumed to perform their duties with fidelity and honesty, and this presumption can only be overcome by positive evidence and not by mere suspicion of fraud.
    APPEAL from the Twelfth Judicial District Court, parish of Grant. Barbin, J.

      B. J. Bowman for Plaintiff and Appellant:
    The dissolution of the plaintiff’s injunction on the ground that one claiming to be an officer could not be enjoined from drawing the salary because salaries of officers could not be seized, is a legal absurdity, there being no analogy between the two.
    The refusal of the sheriff to permit the plaintiff and his attorney to see the commissioner’s returns, his failure to file a copy in the clerk’s office, his refusal to permit any one within the bar to witness the tabulation made, the failure to enclose copies of the commissioner’s returns to the Secretary of State, the final disappearance and destruction of all the tally-sheets, and the selection of the warm partisans of the defendant to make the tabulation, are conclusive evidence of concealment and secrecy.
    It is impossible to believe that violations of law — the withholding of the returns from the clerk’s office, from the Secretary of Stale, their immediate disappearance and destruction after the pretended tabulation was finished, and the outrageous refusal to permit the defendant or any of his friends to see or examine the returns or witness the tabulation, except at a distance from which they could not see or hear, the low conversation of the tabulators — would not have been resorted to, if the returns would have shown that the defendant was elected, without exhibiting changes and alterations made upon them.
    The cause of this secrecy and concealment, and destruction of tbe returns, is fully explained in the testimony of the plaintiff, which proves that the plaintiff was elected by thirty-six majority.
    This testimony is uncontradicted, except by the negative testimony of the very parties whu were engaged in this game of secrecy or concealment, and who studiously and carefully prevented others from seeing that which they did not see, and the casuistry of whose testimony bears the construction that the alterations and changes of the tally-sheets were so skillfully made, that they did not show, to a casual examination, and especially to the examination of those whose part of the contract was not to see.
    ■With all the insignia of fraud thrown over the defendant’s election by the plaintiff, theburden of proof was upon him to remove it, which, if untrue, he could have readily done by the hundreds of citizens who attended the election.

      A. Oazabat, W. L. Richardson, E. G. Hunter and J. G. White for Defendant and Appellee:
    The ordinary rules of evidence apply as well to election contests as to other cases. The evidence must, therefore, be confined to the point in issue, and must be relevant. The burden of proof is always upon the contestant, or the party attacking the official returns or certificate. The presumption is that the officers of the law charged with the duty of ascertaining and declaring the result of an election, have discharged that duty honestly, faithfully and truthfully.- McCrary, American Law of Elections, sections 306 and 440.
    The returns of a vote made in due form, and signed hy the proper officers, is the best evidence-as to the state of the vote. And the returns must stand as the true and correot result of that vote, until it has, under proper proceedings supported by relevant and legal testimony, been clearly and indisputably shown to be false or fraudulent. McCrary, sections 436, 437 and 438.
    The “best evidence of the true and correct state of a vote of a given parish, are the sworn, official returns made in due form hy the sheriff or local returning officer of that parish; and the next best evidence of that vote is the ballots in the boxes, where the boxes are shown to have been kept in the custody of the proper officer, and no- proof has been adduced showing them to have been tampered with. And the next best evidence of that vote, when neither official returns nor the ballots are in existence, is the parol testimony of the legal voters of the precinct, showing for whom they voted. But this last species of testimony is not competent when the ballots are in existence, and where there is no-allegation and no proof that they have been tampered with. McCrary, section 439 $ Acts 1877, No. 58, section 45, page 98.
    Parol testimony of third persons, or the commissioners of election themselves, where their returns are signed and sworn to without any protests, is not competent to vary, change or modify the result of the vote ascertained and tabulated hy the sheriff or local returning officer of the parish, and where it is shown that his tabulation has been made np exactly from the said returns.
   The opinion of the Court was delivered by

Levy, J.

This is a contest for the office of parish judge of the parish of Grant, and for the second time is before this Court on appeal from judgment rendered on a verdict of jury in favor of defendant. On the first appeal the case was remanded to the court a qua for the reasons that the record did not contain the original tally sheets required to be deposited with the Secretary of State, which the contestant charged had been forged or altered, and no proof of their non-existence had been made, which was necessary in order to the admission of secondary-evidence as to alteration or forgery. On the second trial in the lower court, it was proven that these sheets ha d not been received by the Secretary of State, and had not been deposited in that office and the loss or non-existence of them was established. There was a second verdict and judgment in favor of defendant, and plaintiff again appealed. There can be no discussion of the right of the courts to inquire into and pronounce on the validity of the returns of the election. 31 An. 289.

Plaintiff alleges that, at an election held in the parish of Grant, on November 5th, 1878, upon a fair count of the votes cast, he was fairly, legally and duly elected to the office of parish judge, receiving a majority of thirty-five over his opponent, the defendant herein ; that notwithstanding this, and the votes at the various precincts in the parish having been announced by the different commissioners at the precincts as aggregating 463 votes for McKnight and 428 for Ragan, as appeared by the tally sheets, the same were changed and fraudulently altered so as to give Ragan a majority, and the returns of the returning officer, the sheriff of said parish, were fraudulent, and by change, alteration, substitution and manipulation of the true vote by the returning officer and certain confederates, Eagan was returned as elected, so as to cheat McKnight out of said office. Plaintiff prayed for judgment in his favor decreeing him to be entitled to said office, with all the emoluments and salary thereof.

Defendant in his answer denied all the allegations in plaintiff’s petition, and averred that he, Eagan, had been duly elected to said office at said election; that he had been duly commissioned therefor, and was exercising the functions of said office.

Sworn officers are. presumed to perform the duties imposed upon them by law with fidelity and honesty, and this presumption can only be overcome by positive evidence, and not by suspicion or vague charges not directly sustained and conclusive as to fraud, dishonesty or dereliction of duty.

In the case of Duson vs. Thompson, 82 An. 861, the principles on which .this ease must be decided are enunciated in the concurring opinion of Justice Levy, in which there was the concurrence of three other members of the Court. In many of its features, and indeed in the essential one here involved, that case bore great similarity to the instant one, and the doctrines there laid down are applicable to this. We quote from the opinion as follows : “ While the law points out certain formalities to be observed as to the returns of the commissioners, a failure to comply with its directions does not, per se, vitiate the election, and if there are means by which the true vote can be ascertained, such means must be resorted to by the court before which the contest is pending. * * * * If irregularity in the returns or errors of form therein cannot be explained by extrinsic evidence, and irregularity and error are fatal defects, which operate to vitiate the election, it would follow by logical reasoning, that when the returns are regular in form they will be conclusive, and being on their face correct, they cannot be attacked. * * * * * * * In this case the issues as to the regularity or irregularity of the returns being before the court, •the allegations of fraud, error, etc., being also made and evidence on that score introduced, the court had the right and properly resorted to the means of determining the true vote cast at the Leonville poll by opening the ballot box and' counting the ballots. To justify this, and to entitle the ballots to consideration as evidencing the true vote, it was necessary to prove that the box containing them had not been tampered with, that its contents were the same as when sealed and closed by the commissioners, and the requirements of law as to its custody and preservation had been complied with. The ballots in this box were counted in court in the presence of the judge and the jury. This count showed a different result from that set forth in either the statements or returns, or in the returns of the recorder. The question then was to be decided whether the recorder’s return (the sheriff being a can didate, the recorder was the proper returning officer), based upon these statements of the commissioners, was the true return of the votes cast at the poll, and did the ballot box contain the ballots as cast by the voters of that poll, and had it or not been tampered with. * * * The testimony shows that the box was in the custody o£ the proper officer and his deputies, and the presumption that officers perform their duty under the maxim “ ovinia presuviuntur rite acta,” is fortified by their positive testimony that the box had not been tampered with, and that it was produced and opened in court, on the trial of the ease, just as it was received by them from the commissioners. * * * * T can-

not allow mere surmises and vague suspicions, unsupported by positive testimony or substantial facts, to outweigh the evidence which has convinced me.”

The evidence in the record of this case fails to satisfy us that the ballot boxes were tampered with, and we can find no error in the verdict and judgment.

The judgment appealed from is affirmed with costs.


author: Todd, J.

text:
    No. 8064.
    O. A. Pierce, Kenyon Assignee, vs. W. L. Cushing et al.
    In the extension of time granted "by this Court for filing the Transcript of appeal, days of public rest should be counted.
    Anjagreement entered into before the return day, by which citation of appeal is waived and considered as served in due time, cannot be construed as a consent that the Transcript be filed after the legal delays, and a renunciation on the part of the appellee of the right to move the dismissal of the appeal on that ground.
    APPEAL from the Sixth District Court, parish of Orleans. Bightor, J.

      Posey & Posey for Plaintiff and Appellee :
    ITirst — The Court is not called upon to take better care of parties litigant than they choose to take of themselves. 7 An. 44.

    Second — Any defect or error, or irregularity in bringing up the appeal, if it appears that such error, irregularity or defect is imputable to appellant, will, on motion, cause its dismissal. 15 An. 116; 22 An. 112; 29 An. 173.
    Third — A failure to file the transcript within the legal delays, especially when three extensions have been granted, presents greater reasons to dismiss an appeal than in cases where the record, though filed in time, is affected only with some defect, error or irregularity. Not to dismiss it, in such case, would virtually be giving a premium to negligence. C. T. 590, 594; 10 An. 147.

      Fourth — Every appellant stipulates to prosecute his appeal with diligence. It is one of the conditions on which the law allows it to him. If he neglects to do such acts as are necessary on his part to do or to have done, in order to file his appeal in time, he violates the condition of his appeal bond, and must abide the consequences. C. P. 579, 594, 588, 589; 12 M. 505, 606.
    Fifth — The appellee may avail himself of the failure of appellant to file the transcript seasonably in one of three ways: he may proceed to the execution of his judgment, by obtaining the clerk’s certificate; he may bring up the record and require the affirmance of the judgment; and lastly, he may require the dismissal of the appeal. 7 M. 350; 3 An. 326.
    Sixth — After the expiration of the delay given by law, or of that given by tbe court, the right of appellee to move to dismiss on the ground of abandonment is not affected by the filing of the transcript by the appellant before the motion to dismiss. The transcript being before the court, is sufficient under Art. 590 C. P. Palfrey vs. ‘Winter, 8 L. 206. The appellee in such case is not bound to answer to the appeal. Id., 10 An. 76.
    Seventh — When the appellant does not file the record within the time allowed by the law, nor within the further time granted by the court, and makes no effort to obtain a further extension, he must be held to have abandoned the appeal within the spirit of the 594th Art. G. P., and should not he allowed to renew it. 10 An. 234; 3 An. 226, 189; 6 R. 79;7 La. 177; Ducournau vs. Levistones, 3 An. 245; same case, 3 An. 30; id. 279; 3 L 251; Dwight vs. McMillen, 4 An. 350; Redman vs. Mann, 23 An. 378, and 24 An. 149.
    Eighth — The intention of a party to waive a substantial right is not presumed; it must clearly appear So, where an agreement is so worded as to evidently show an intention, on the part of one of tbe signers; to guard against the waiver of such right, .the maxim consensus tollit errorem does not apply. 12 La. 571; 7 La. 16; 4 La. 67.
    Ninth — The reduction of previous verbal agreements to writing, or a written acknowledgment thereof, is a sufficient proof of such verbal agreement when offered in evidence for that purpose, without regard to whether such written proof was made at the time of the verbal agreement or afterwards; and it appears from tbe evidence in this case that citation was effectually waived by the appellee previous to the expiration of appellant’s delay to file the transcript.

      H. H. Bryan for Defendants and Appellants:
    , First — A motion to ‘dismiss comes too late after an agreement, to waive citation of appeal. 1 N. S. 133.
    Second — That where a devolutive appeal is taken and the transcript is not filed in time, through no fault of appellant, the appeal will not be dismissed. 15 An. 692.
    Third — That in counting the delay given by tbe court, “ days of public rest ” cannot be included, and that this transcript was filed in time.
    Fourth — That the agreement made herein, waives all questions as to the manner and time of filing the transcript. 15 An. 692; 1 N. S. 133.
    Fifth — That this appeal being only a devolutive one, and this cause having been at issue for nearly ten years, no damage can happen to appellee by a maintenance of the appeal, and a dismissal would only compel appellant again to appeal.

      B. S. Marr on the same side:
    Mrst — No appeal shall he dismissed on account of any defect, or error, or irregularity, etc. whenever it shall not appear that such defect, etc., is imputable to appellant. Act 1839, p. 170, Seo. IS ; R. C. P. 898; 15 An. 116; 22 An. 112; 29 An. 763; 31 An. 504; ib. 595.
    Second — In a doubtful case the appellant will have the benefit of the doubt; and the appeal will not he dismissed where it does not clearly appear that the law, construed liberally in favor of appellant, requires the dismissal. Authorities cited above; 11 La. 382; 1 An. 417; 2 An. 390; 4 An. 534.
    Third — The failure of appellant to bring up the record creates the presumption of abandonment only where the appellee, on producing the record, causes, the appeal to be rejected, or where he obtains the certificate o± the clerk of the appellate court, and proceeds on the judgment as if no such appeal had been demanded. R. C. P. 594, 595.
    Fourth — Agreements of counsel, on which the court is to act, must be in writing and filed. Par. 3, Rule xi., Supreme Court.
    Fifth — The acceptance or waiver of service of citation of appeal must appear of record, or be established by the written acknowledgment of the party. 6 La., 117.
    Sixth — A motion to dismiss an appeal for want of timely filing of the transcript cannot be maintained where, after the expiration of the legal delay, the appellee has accepted or waived service. 13ST. S. 136.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Todd, J.

The return day of the appeal in this case was the first Monday of November, 1880. The transcript was not filed on that day. Before the expiration of the time the-appellant obtained an extension of -thirty days to file the transcript. At the expiration of the time thus extended, fifteen days more were granted within which to perfect the appeal, which were, also, suffered to elapse without filing the record. And still a delay of fifteen days more was obtained ; and after the expiration of this last delay, to wit: on the 12th January, 1881, the transcript was filed.

The appellee moves to dismiss the appeal on the ground that the transcript was not filed within the delay granted.

The law is clear that, if the transcript is not filed on the return day, or within the days of grace thereafter, or, in case of an extension, within the further delay granted, the appeal must be dismissed. C. P. 687, 589, 590, 884, 885 ; 14. La. 203 ; 7 La. 176 ; 3 An. 245 ; 4 An. 30, 279; 5 An. 42, 716, 744; 6 An. 294; 9 An. 65, 538 ; 14 An. 29.

The case must come under the operation of this well-established rule, unless there be something in the acts or agreements of the parties that will save it therefrom.

The appellant apposes two grounds to the dismissal of the appeal:

1. That days of “public rest” must be excluded in counting the delays granted by the Court.

2. That there was a written agreement in the transcript, the effect of which was to waive all objections that might otherwise be urged as to the time and manner of filing the transcript.

First — The appeal was taken on the 31st of July, 1880, returnable on the first Monday of November of same year. Delays, amounting in all to sixty days, were granted beyond the return day, for filing the record of appeal. These delays expired on or about the 1st of January, 1881, and the transcript was not filed, as shown,’ until the 12th of that month. There is nothing in the law authorizing the granting of an extension or extensions of time for bringing up a record of appeal, that expressly or by implication requires the exclusion of days of public rest in computing the time of such delays, and the counsel have referred us to no authority in support of their motion on this point, and we see no force in it. Th'e general rule in this particular is, that in the legal delays fixed or allowed by law all days are to be counted, unless by the terms of the law days of public rest are excluded, either expressly or by implication.

Second — The agreement relied on as showing a waiver as to time of filing the record, is in the transcript, and was filed on the 10th of January, 1881, and is to the effect that only certain parts of record which had been offered in evidence, need be copied into the transcript, and that a printed pamphlet offered should go up in the original and form part of the record ; and then follows the following language : “ It is further agreed, that service of copy of petition of appeal and citation thereof, on Daniel Kenyon, assignee, and appellee, is waived nunc pro tunc, and considered as though said service had been duly made, an agreement to that effect having been heretofore made.” This agreement is signed by the attorneys of both parties, and bears no date other than the date of its filing.

The question presented is, whether this agreement had the effect to debar the appellee from moving to dismiss the appeal on the second ground of his motion that the transcript was filed too late ?

Admitting that the record was filed too late, after the expiration of the delays granted, and the appeal for this reason was subject to dismissal, and that under the law the right of the appellee was clear to move for its dismissal, a renunciation of such right cannot be inferred, unless it results irresistibly from the terms of the agreement.

We do not consider this agreement as having such an effect, or as evidencing such a waiver or renunciation. It was evidently intended to give the appellant the benefit of a prior agreement that had been made between the parties, and to which it refers. This is manifest from the words nunc pro tunc, and the express reference to an agreement “heretofore made.” By that prior agreement, citation on the appellee had been waived, and certain documents offered in the lower court omitted from the transcript, and the original of another one offered, brought up with the record, to save expense and for the convenience of the parties.

The stipulation in the agreement that service of the petition of appeal and citation thereof shall “ be considered as though the same had been duly made, an agreement to that effect having heretofore been made,” shows that such agreement was entered into before the expiration of the time when such service could be duly made on the appellee, that is, before the orginal return day as fixed by the order of appeal. And this construction of its meaning is confirmed by the fact that no citation of appeal ever issued and no service was ever made on the appellee.

The matter reduces itself to this: That at the time the appeal was taken there was an understanding or agreement between the parties by which certain records were omitted from the transcript, an original printed document sent up with it, service of the petition of appeal accepted and waived. In confirmation of such agreement, a writing was subsequently signed and filed nunc pro tunc to stand in lieu of the original agreement and be evidence of ihe same. Its'legal effect was no more, no less, than the actual service of the petition and citation of appeal at the date of the original agreement, or in due time..

It is urged, and authorities are cited to show, that this Court can take no notice of a verbal agreement alleged by counsel for either party, where “they differ with respect to such agreement. These authorities are not in point. We are giving no effect to a mere verbal agreement, but are alone considering the written statement or declaration of the parties furnishing evidence, and indisputable evidence, of such agreement. We look on the agreement as supplying the written proof that service was dispensed with, and as such, we cannot regard it as a consent to the filing of the transcript, after the delays had expired, within which the law required it to be filed.

In the ease of Murphy vs. Bezont, 7 La. 16, the appeal was made returnable at the January term, when, under the law, it should have been made returnable in November previous. The transcript was filed on the 7th January. The appellee agreed in writing with appellant’s counsel that the ease be postponed till the March term following, and this agreement was endorsed on the transcript. The appellee moved to ■dismiss the appeal. The appellant contended that this agreement was a consent to the irregularity mentioned and a waiver of any right to move for a dismissal of the appeal on account of it. The Court held otherwise, and the appeal was dismissed.

The appellant’s counsel urges with much earnestness the difficulties attending the bringing up the appeal in this ease on account of the voluminous record offered in evidence, and a printed volume, and that the delay grew out of the desire to save costs, and inconvenience to the Court by dispensing with the copying of the same, and the time consumed before the written consent of the appellee’s counsel to the arrangement could be obtained. This cannot justify the filing of the record beyond the delays and extensions prescribed therefor. There was a special remedy provided 'by law for cases of appeals attended with such difficulties, of which.the appellant twice or thrice availed himself, and could have done so again by the proper application.

Art. 883 C. P. provides :

“ If the appellant has not filed in the Supreme Court on the day appointed by the inferior judge the record from the court below, and was prevented from doing so by any event not under his control, he may apply to the Court ****** and may demand a further time to bring it up, 'which may be granted by the Court, if the event causing the delays be proved to its satisfaction.”

We are referred to the cases of Veech vs. Grayson, 1 N. S. 133, and Massey vs. Helme, 15 An. 692, as authority for maintaining the appeal and opposed to its dismissal.

In the first case cited, after the return day had passed, there was a written acceptance of the petition of appeal and of citation which the Court construed into a consent to the filing of the transcript after the return day and a waiver of such irregularity. We have shown that the agreement in the present ease was made before the return day, though the written evidence of it was supplied after its expiration.

In the other case (15 An. 692) the Court stated that the appellant was not in fault for the delay, for what reasons it does not fully appear, and a further delay was allowed for bringing up the transcript, though no application was made therefor till after the return day. We infer this, though it does not distinctly appear from the body of the decision. If such was the ruling, it was in plain and direct conflict with the provisions of the law, and we do not regard it as authority.

The motion to dismiss must prevail.

The appeal is, therefore, dismissed at the appellants’ cost.


author: Poché, J.

text:
    No. 8210.
    Harris Jaffa vs. M. O. Myers and Husband.
    A married woman may legally bind her paraphernal property for the purpose of liberating her husband from jail, and when she has done so in contracting with third persons in good faith, she is not allowed to deny her obligation on the ground of the marital influence and coercion.
    Such a defense is a fraud for the perpetration of which the law will not lend her the aid and relief which it extends to married women against the abuse of the marital power.
    A vendor, who has agreed with the vendee that the latter would assume the payment of certain obligations as part of the price of sale, is not allowed to plead the nullity of those obligations in a petitory action brought by said vendee, in which he claims title to the property sold.

      APPEAL from the Eleventh Judicial District Court, parish of Natchitoches. Pierson, J.

      Wm. H. Jack, D. G. Scarborough and J. F. Pierson for Plaintiff and Appellee:
    The wife has the right, with the authorization of her husband, then confined in jail under criminal charges, to alienate her paraphernal property to pay or discharge attorneys’ fees, employed hy her to defend him.
    "Where a married woman, in such a case, by her own voluntary representations, induces such, attorneys to assume certain mortgages existing on the property, as good and valid obliga* tions, and as a part of the price of the property accepted by them in discharge of their fees, she will be estopped thereafter in a controversy with their vendees from urgiug the invalidity of such mortgages.
    Where a married woman employs fraudulent means to obtain a loan of money, she is afterward precluded from pleading against the mortgagee or subsequent holder the general incapacity resulting from coverture. By such act she forfeits the benefit of the legal presumption that her contract inured to the advantage of her husband.

      L. B. Watkins for Defendants and Appellants :
    Eixst — This is an ordinary petitory action for the recovery of two improved lots in the city of Natchitoches, La., and to which defendants allege that Mrs. Myers has never given up the legal title. The suit was accompanied with a sequestration, and the property bonded into possession by plaintiffs.
    Second — The consideration named in the authentic title from Mrs. Myers to Pierson and Scarborough, dated June 3d, 1878, was $800 for their services as attorneys at law, to be rendered in defending her husband, then in jail; and their assumption of the Baford Blunt and Jaffa mortgages, of $400 each, and the assumption of a claim of Jaffa for taxes alleged to have been paid by him on the property.
    Third — On the same day, and before the same officer, Pierson and Scarborough executed a like title to the plaintiff, for the same consideration, except that the vendors simply released him, Jaffa, from liability as to his mortgage, and claim for taxes paid, that no actual value passed in either sale ; that the mortgages were never discharged or cancelled, nor was the tax claim settled ; that a revocation of the title would reinstate these claims against the property in Mrs. Myers’ hands. J ohn Chaffe & Bro. vs. Morgan, 30 An. 1307.
    Eourth — The Jaffa mortgage was not authorized by the judge, under C. 0.127 et seq.; it was not for a consideration which, inured to Mrs. Myers’ benefit, or that of her separate property; that the burden of proof was on the piaiatiff, and the valid consideration of the note secured was not supported by a preponderance of evidence.
    Piffch — The Blunt mortgage is afflicted with a like infirmity, though the burden of proof was on Mrs. Myers. This she accepted and offered evidence under the allegations of her answer, that she had not given up the legal title, and that the sale was made under duress and mistaken advice as to the law and without one dollar of consideration, and which evidence was by the court improperly rejected because the judge’s certificate was not assailed. Barth vs. Kasa, 30 An. 940 et seq.

    Sixth — That these two mortgages, if valid, formed no part of the cause or active consideration of the contract of sale oí June 3d, 1878, as they existed antecedent to the sale, and remained in statu quo after the sale, without any payment being made. Likewise of the claim of Jaffa for taxes paid. That neither of the vendees parted with any money. Even the two attorneys rendered Mr. Myers future services only,
    Seventh — The fee of the attorneys was a debt of the husband, and any promise of Mrs. Myers to pay it could not legally bind her, being in violation of a prohibitory law. C. C. 12,2398; 30 An. 291; 24 An. 142; 7 N. S. 64; 10 La. 146; 4 B.508; 2 An. 579; 5 An. 595; 1 An. 428; 7 An. 293 ; 12 An. 725; 14 An. 700; 21 An. 525.
    Eighth — Although it is the duty of the wife, all of whose property is paraphernal, to hear a portion of the marriage charges, yet this cannot exceed “one-half of her income.” O. C. 2389, 2395, 2345 ; 30 An. 552. These charges must be taken out of her earnings.

      Tbe wife cannot even be authorized by the judge to execute a mortgage upon her paraphernal property for such a consideration. C. C. 127 et seq.
    Ninth — That the claim for $325 taxes paid antecedent to the sale was not supported by sufficient evidence as to the greater part, and that the valid part formed no part of the active consideration of the sale. That same was in no part paid by either vendee.
    That the taxes and repairs since the date of sale form no part of its consideration.
    Tenth — There is a wide distinction between the rules of law applicable to the alienation of dotal and paraphernal property of the wife.
    The following are applicable to dotal property : G. O. 2337, 2347, 2349, 2354, 1357, 2361, 2363.
    Those applicable to the paraphernal property of the wife are the following: 2383, 2384, 2387, 2389, 2390, 2395, 2397, 2398; 30 An. 291; 16 An. 310.
    Eleventh — That in case paraphernal property may be alienated to satisfy attorney’s fees incurred in tbe husband's defense, under the authority of C. O. 2361, and 16 An. 166 ; that authority must be strictly pursued — the authorization of the judge and not that of the husband must be obtained — the sale must be made at public auction, after three pub- • lished advertisements, and not by private contract, or conventional agreement — the decision of tbe judge as to tbe necessity for a sale must be obtained • that of the husband will not suffice.
   Tlie opinion of the Court was delivered by

Poché, J.

On the third of .Tune, 1878, while H. C. Myers was incarcerated in the parish jail of Natchitoches, under several charges for felonious offenses, his wife, the defendant in this case, duly separated in property from him, retained the services of J. F. Pierson and D. C. Scarborough, attorneys at law, to attend to and manage the defense of her husband, and agreed to pay their fees at the stipulated sum of eight hundred dollars.

In payment of said sum, and on further consideration of their assuming two mortgage debts which she owed, she sold two lots of ground, her paraphernal property, situated in the city of Natchitoches, to the attorneys thus retained by her, and in the sale she reserved the right of redemption of the property sold until the 1st of March, 1879, on her reimbursing to her vendees'the various sums of money stipulated as the purchase price.

On the same day her vendees sold the same property to Harris Jaffa, the plaintiff in this case, who institutes the petitory action for the recovery of .the property, which he alleges to be in the unlawful possession of the defendant.

She urges in defense that she signed the sale under marital coercion and influence, and for no consideration to herself; and she prosecutes this appeal from an adverse judgment.

In their brief counsel limit the issue to the question of the validity of the wife’s contract for the payment of counsel fees for the defense of her husband. Her counsel admit that the professional services were rendered and resulted in the discharge of the husband; that the sum stipulated as their fee was reasonable, and that no illegal or fraudulent means were used or resorted to by the attorneys for the purpose of inducing the defendant to retain and compensate them as shown by the record.

But they take the ground that these services enured to the benefit of the husband, making him the real debtor of Scarborough and Pierson, and that the sale by the wife of her paraphernal property in payment, and for the consideration of the debt of her husband, which she thus assumed, was made in contravention of a prohibitory law, and is, therefore, null and void.

After a careful perusal of the evidence, although it is somewhat conflicting, we are satisfied that the services of Pierson and Scarborough were retained by the defendant for the purpose of liberating her husband from jail, and that the fees thus earned by these attorneys formed a personal debt of the wife, which she had full power under our laws to contract, in discharge of a duty imposed on her by the law which provides that “the husband and wife owe to each other mutually, fidelity, support and assistance.” C. C. Art. 119.

Recognizing -the duties thus imposed on the spouses as sacred and of paramount importance, our Oode provides for .the sale, by judicial authority and proceedings, of the wife’s dotal immovables, for the purpose of liberating her husband from jail. O. O. Art. 2361.

And the wife is further empowered to alienate her immovable effects, of whatever nature they may be, in cases where the alienation of the dotal immovable is permitted. O. O. Art. 2397.

The defendant in this case, far from being prohibited from contracting as she did, was fully empowered by a solemn duty, and by the highest legal authority, to alienate her paraphernal property for the purpose of liberating her husband from jail, and of having him acquitted from charges of heinous offenses.

The power of a married woman to contract a debt under similar circumstances was interpreted, and fully recognized by this Court in the case of Nettles vs. Sheriff, 16 An. 339, where the wife was held bound for the payment of a note which she had executed in favor of attorneys at law for the purpose of defending her husband who was then confined in jail on a charge of manslaughter.

The sum of eight hundred dollars, which the defendant owed to Pierson and Scarborough, the attorneys who had defended and liberated her husband, was, therefore, a legal and valid consideration for her sale to them of her paraphernal property. The title which plaintiff acquired by his purchase from her vendees is, therefore, legal and binding on the defendant.

On trial, she attempted to show by parol testimony the nullity of the two mortgage debts which her vendees had assumed as part of the purchase price of the property which she transferred to them.

But this investigation was entirely foreign and irrelevant to the issue presented by the pleadings, which was one purely of title between herself and the plaintiff in his petitory action.

Having induced her vendees to assume, as part of the purchase price of her property, obligations of hers which she then recognized as legal and binding, she cannot be allowed to set up the nullity of such obligations, in order to defeat the titles of her vendees, which she is bound to warrant.

The legality or illegality of these contracts may be tested by her in some other proceeding, but not in this case, nor under the issues herein presented.

Having secured the services of these attorneys by means of the contract which she now seeks to annul, and having reaped the full benefit of their talent, their labors and their zeal, in the defense and vindication of her husband, for whom she professes in her testimony so much fondness, attachment and devotion, and in whose innocence she had such an abiding faith, she cannot now be tolerated in her ungrateful attempt to defraud them of their well-earned reward by claiming that she had ensnared them in the purchase of property to which, as she now contends, they have acquired no title by reason of her alleged misrepresentations. “ The law protects the weakness of women, not their dishonesty.” See case of Henry vs. Gauthreaux, 32 An. 1103, and authorities therein quoted.

The whole system of our civil law abounds with exceptional and wise provisions for the protection of married women, and is intended to shield them from abuse and oppression, and from the misconduct of their husbands; but it does not lend itself to any scheme under which married women may seek to defraud innocent parties and bona fide creditors.

The judgment of the lower court administered substantial justice between the parties, and is, therefore, affirmed with costs.