author: McEnery, J. Nicholls, O. J.

text:
    No. 11,252.
    The Gunning Gravel and Paving Company vs. City of New Orleans.
    The City Council of New Orleans has the right to designate the material with which a street may be pared.
    The city charter requires that the furnishing of material for public works shall begiventothe lowest bidder; but there is a proriso that the Council may reject any and all bids. This proriso in the charter was to obtain the material and the work at the lowest possible cost to the tax-payer after competition among bidders, and the proviso was intended for the same public interest — to protect the tax-payer from imposition, and while inviting competition to secure good material and responsible contractors.
    While the City Council would not be justified, and the courts would intervene to protect the tax-payer in such event, to arbitrarily reject a bid,'and thus defeat the object to be attained by competition, it is vested with a certain discretion in rejecting bids, which will not be controlled when exercised with prudence in the public interest.
    APPEAL from tlie Civil District Court for the Parish of Orleans, King, J.

      E. M. Hudson and Gilmore & Baldwin for Plaintiff and Appellant:
    1, Of every municipal corporation, the charter or statute by which it is created is its organic act. Neither the corporation nor its officers cando any act, or make any contract, or incur any liability, not authorized thereby. All acts beyond the scope of the powers granted are void. Much less can any power be exercised, or any act done, which is forbidden by charter or statute. These principles are of transcendent importance and lie at the foundation of the law of municipal corporations Dillon on Municipal Corporations, Sec. 89, and cases there cited; See. 457, and cases there cited; Siebrecht vs. New Orleans, 12 An. 496.
    2, Where the charter of a municipal corporation requires that all contracts for public works shall be let to tbe lowest bidder, after advertisement, the corporation must act in strict conformity to the charter and statutes, and coniine itself to the mode pointed out by law, which mode is the measure of its powers, otherwise the action of the corporation will be void. Dillon on Municipal Corporations, Secs. 446, 467, 468; Peoplc^s. Gleason, 121 N. Y. (Court of Appeals), 6B4, 635.
    3. When contracts for public works are prohibited by the charter of a municipal corporation to he let, except to the lowest bidder, after full and free competition, no practical competition is possible where there can be but one bidder, because of a monopoly possessed by that bidder. To hold otherwise would be a farce on justice, and will not, therefore, be tolerated by the law. Nicholson Pavement Company vs. J. B. Painter, 65 Cal. 699; Nicholson Pavement Company vs. John Fay, 65 Cal. 695; Dean vs. Charlton, 23 Wis. 590; Burgess vs. Jefferson, 21 An. 143; Barber Asphalt Company vs. Gogreve, 41 An. 251; Buckner vs. Hart, Circuit Court of Appeals, Fifth Circuit, not yet reported; Sherlock vs. Village, etc,, 68 111. 530.
    4. -An injunction will issue to prevent the carrying into effect of an ordinance passed by a municipal corporation which is beyond the scope of its powers or prohibited by statute, whether passed under the pretence of observing the forms of law or not. Also, to prevent an illegal diverson of public funds. Kerr’s Injunction, ch. xxiv, 5, pp. 572 et seq.t also Note 1 to same; People vs. Mayor, etc., of New York, 32 Barb. 35; High on Injunctions, Secs, 1241, 1275 and 1287.

      E. A. O’Sullivan for Defendant and Appellee.

      Farrar, Jonas & Krultschnitt as Amici Ourise.

   The opinion of the court was delivered by

McEnery, J.

Under specifications submitted to it by the city engineer, the City Council of New Orleans by ordinance directed the comptroller to advertise for sealed proposals for the paving of the wood side of St. Charles street from its intersection with Louisiana avenue to the terminus of the present pavement on the river side of St. Charles avenue with Rosetta or Hoskins gta vel. On the 26th day of October, 1892, the comptroller advertised for sealed proposals, as directed by the City Council, to be received at his office until the hour of 12 m. on Wednesday, November 2, 1892.

The advertisement required a deposit of $50 and a certificate of said deposit to accompany each bid.

On the day, November 2, 1892, before the hour of 12 m., the limit when said sealed proposals were to be received, the plaintiff, a foreign corporation domiciled in the city of Vicksburg, State of Mississippi, owner of beds of gravel in said State, having previously made the deposit of $50, presented and filed a sealed bid for paving said St. Charles street in accordance with the advertisement.

The Rosetta and Hoskins Gravel Company also presented bids.

The plaintiff’s bid was the lowest, but was rejected by the City Council and the bid of the Rosetta Gravel Company accepted.

There was no answer filed by the city on the rule to show cause why an injunction should not issue, and there is no evidence in the record other than that of the existence of the plaintiff corporation, the bid, and the acts of the Council and the comptroller. There was judgment for the city, and the plaintiff corporation appealed.

We are therefore compelled to decide this case mainly upon the facts alleged by plaintiff, and the official acts of the city government.

We infer from the petition that the Rosetta, Hoskins and Gunning gravel are about of the same quality, and that the'names given to the gravel are more to distinguish the several companies than to designate any particular superiority, of the gravel. They are not patent processes exclusively controlled by the owners of the patent, which would exclude competition. They are natural deposits, and there is nothing in the record to show chat the bidding was intended to be confined to the two companies designated in the resolution of the City Council and the comptroller’s advertisement. The Council had the undoubted right to say with what material the streets should be paved. It selected the Rosetta or Hoskins gravel, but did not say that the companies owning the gravel should be awarded the contract. Other persons could have bid to do the paving with this material, and there is no evidence to show that it could not be procured by the bidder from the companies owning the material.

The city charter requires that the furnishing of material for public works shall be given to the lowest bidder, but there is a proviso that the council may reject any and all bids. This proviso in the charter was to obtain the work and material at the least possible cost to the tax-payer, after competition; and the proviso was intended for the same public interest and economy, to protect the tax-payer from imposition, and while inviting competition to secure good material and responsible contractors.

While the City Council would not be justified, and the courts would intervene to protect the tax-payer in such event, to arbitrarily reject a bid, and thus defeat the object to be attained by competition, it is vested with a certain discretion in rejecting bids, which will not be controlled when exercised with prudence in the public interests.

In rejecting plaintiff’s bid, we are of the opinion that the City Council acted with prudence and in the interest of the tax-payer to get material which had met with the approval of the tax-payers and to obtain a responsible contractor.

We presume from the circumstances of the case, and the absence of complaint by the tax-payers of New Orleans, although there is no direct proof of the fact, that the two rival companies, the Rosetta and the Hoskins, were well known contractors and dealers in gravel in the ciiy.'

The plaintiff is a foreign corporation, and put in an appearance on the last day on which bids were to be received. There is no evidence that it had shown that gravel owned by it was equal or superior to that of the Rosetta Gravel Company, or that it had given any evidence of its ability to do the paving with skill, and to respond in damages for inferior work. The statements to this effect are ex parte and its ability to do the work skilfully and to respond in damages are speculative.

Judgment affirmed.

On Application for a Rehearing.

Nicholls, O. J.

It would appear from an inspection of plaintiff’s petition that it contains two distinct demands presented in the alternative.

On averments by it deemed sufficient to carry with them the nullity of the ordinances authorizing the paving of St. Charles Avenue and everything done thereunder, plaintiff prayed that those ordinances and all said proceedings be decreed null and void; but anticipating a possible adverse decision upon this demand it set out allegations of a different character, and prayed that in the event the ordinances be held valid that then in that event the contract under the ordinance be awarded to it.

In refusing plaintiff’s accompanying prayer for an injunction the district judge assigned no special reasons, and we are left in doubt as to the grounds upon which he based his action.

The opinion which we have rendered in the case shows on its face that we passed by almost unnoticed the first branch of the petition and went directly to the c<. nsideration of the second. It was perfectly obvious to us that quoad the action for the declaration of the nullity of the ordinances the plaintiff had no standing in court.

The plaintiff described itself as a corporation organized under the laws of Mississippi and having its domicil at Vicksburg. It did not aver it was doing business in this State, that it had any agent here, that it had any property in New Orleans, or that it paid a dollar of taxes there, and it is quite likely that the judge of Division “ B,” finding no allegation tending to show any legal interest in the plaintiff such as to authorize him to invoke the nullity of the ordinance in question, refused the injunction for that reason. When this court reached (as it did reach) itself that conclusion — the effect of its doing so was of course to defeat that portion of plaintiff’s demand, independently of any question of tho sufficiency otherwise of plaintiff’s allegations as to the nullity of the ordinances. As throwing the plaintiff out of court on the score of want of legal interest in the question would leave still in court its allegations that the ordinances were null, the logical result in view of that fact would have authorized us (under the pleadings) to entirely do away with a discussion of the second branch of plaintiff’s petition. Be that as it may, we did in fact discuss it and held that the district judge acted correctly in refusing the injunction. In discussing the question we took it up in the order and on the “ theory ” of plaintiff’s petition, that the first branch of the case had been examined into and passed upon adversely to plaintiff’s views, and that it was before us as one where the ordinances being assumed legal the rights of the parties were to be determined on other issues. In the very nature of things arising from a discussion from the new standpoint the court had to do away with every hypothesis and every allegation which had been urged or could have been urged on the first branch of the case and to deal with matters as being (up to the opening of the bids) in all respects legal. It was only on that point and from that point our discussion began on the hypothetical premises assumed, of perfect legality in all things prior to that time.

Taking up plaintiff’s pleadings and dealing with them as applicable to the second demand we reached the conclusion that it was impossible for the district judge to have ruled otherwise than he did. In the application for rehearing filed by the plaintiff it falls into the error of seeking to carry over and make available for the second or “contingent” prayer, allegations which for the purposes of that prayer have necessarily to disappear.

For the purposes of the second branch of the case we have to ‘‘assume ’’that the Rosetta Gravel Company, the Hoskins Gravel Company and the Gunning Gravel Company were each and all fairly allowed to enter into free competition with each other for the paving contract under a valid ordinance, but that the Gunning Gravel Company’s bid was the lowest bid of the three, and yet in spite of that fact and its ability to furnish all necessary security the City Council awarded the coutract to the Rosetta Gravel Company and that the Mayor would sign the contract under orders from the council unless restrained by injunction. It was upon this state and condition of the pleadings and nothing more that we were called upon to say “ on the face of the papers’’ whether the district judge was wrong in refusing the injunction.

The opinion which we have rendered was from that point of view.

Only a few days since in the case of Hughes vs. Murdock we cited the well recognized doctrine in pleading that up to judgment the pleadings will be taken most strongly against the pleader, and that unknown, unrecited facts would not be assumed in his favor, particularly in the face of an adverse ruling of the district judge.

The case at bar falls directly under that principle. The plaintiff asks us to “assume,” as an absolutely necessary consequence of its being the lowest bidder for the contract, that it should be awarded to it, and it asks us to assume that fact in presence of the repeated declarations of courts everywhere, that sworn officers will be presumed to have done their duty, certainly at least until they have been “alleged” to have done otherwise.

There is not one single word in plaintiff’s petition accusing the Common Council of New Orleans with having acted arbitrarily, fraudulently or improperly in any manner.

The plaintiff relies upon the naked fact advanced by it, that its bid was the lowest, and that its material was equal or superior to that of the other bidders, and that it could furnish security. We are left absolutely in the dark as to the reasons upon which the Council acted.

We are bound in the absence of direct charges and statements of facts to presume that their action was honest and legal.

We can not eke out a case for the plaintiff by inferences of wrongdoing and make suspicions and conjectures take the place of allegations.

Whilst it is possible there was such wrong- doing, it might also well be that the Council acted after a very strict examination into all the facts and circumstances which it had the legal right to examine into in order to determine whether plaintiff’s bid was a proper one or not, and that these conclusions thereon are justified and right.

It may well be that although the plaintiff “alleges” his ability to furnish security he may in fact never have tendered it at all, or that the security furnished was insufficient. Plaintiff’s petition is silent on these points.

If the Council was guilty of wrong-doing plaintiff should have directly so alleged, and stated facts and circumstances to show in what way and from what cause that wrong-doing arose.

We repeat here what we said in the Hughes case, that when a plaintiff selects an act as the object of his attack which is not per se necessarily wrongful and illegal, but which may exist consistently with honesty, fair dealing and legality, it is the duty of the attacking party to set out specifically the facts which would give to the act an illegal or wrongful character.

Whatever expressions were used in our opinion to the effect that the Council had acted prudently and rightly must be read and construed from the standpoint and from the circumstances under which they were employed. We did not intend to say as a, fact that the Council had so acted, but that for the purposes exclusively of this ease as presently placed before us, we were bound to assume they had done so.

The fear which plaintiff entertains that we have committed ourselves to holding that an arbitrary selection by a common council of three or four favored individuals to whom and to no others it would extend invitations to give in bids for contracts, or to a selection of gravel at any particular point or locality, under circumstances such as to make the bids in reality, but under disguised pretexts, nothing more or less than the bids of the particular persons owning the same, or that we have recognized and given our sanction to the doctrine that a common council under a grant to accept or reject bids has the right to arbitrarily and finally reject the lowest bid or to accept the higher, without any facts justifying such -action, is totally unfounded.

There is high authority for holding to the contrary.

In the case of People ex rel. Coughlin vs. Gleason, 25 Northeastern Rep. 5, the Court of Appeals of the State of New York said:

“The claim is made on behalf of the relator that there is a conclusive presumption that the common council adjudicated that his bid was that of the lowest responsible bidder.
“If this claim is well founded, then provisions like that above quoted (providing that contracts should be let to the lowest bidder) from the city charter are of little use and they can always be effectually disregarded and violated.
“It is true that the common council, where there are several bidders, have jurisdiction to determine who is the lowest responsible bidder, but, in order to give its action any legal effect, it must exercise its jurisdiction and make a determination based upon some facts. If it refuses to accept the lowest bidder for work or supplies, there must be some facts tending to show that it is not that of a responsible bidder, or there must be at least some pretence to that effect. An arbitrary determination by such a body to accept the highest bidder without any facts justifying it can not have the effect of a judicial determination and must be denounced as a palpable violation of law.”

It was doubtless the intention of the plaintiff to bring this case -. within the doctrine just' announced, but it has not done so in its pleadings and it is by these that we are now testing matters.

Rehearing refused.


source: Caselaw Access Project

author: MoEnbry, J.

license: Public Domain

text:
    No. 11,302
    Clara Marie Sauton vs. Louise Amelia Sauton.
    A question of fact, whether or not the defendant is living, is only involved in this’ ease. The testimony satisfies the court that the defendant is living, and judgment affirmed.
    PPEAL from the Tenth District Court, Parish of Rapides. Andrews, J.

      H. P. Dart and White & Thornton for Plaintiff and Appellee.

      Robert P. Hunter for Defendant and Appellant.
   The opinion of the court was delivered by

MoEnbry, J.

The plaintiff and defendant are sisters, and owned in indivisión a cotton plantation in the parish of Rapides, containing 1000 acres. They inherited this property from their mother.

The defendant, when she was some seven years of age, was taken to the Republic of Mexico by her uncle, Edward Sauton, and his wife. She has been absent some eighteen years.

The plaintiff, alleging that her sister, the defendant, was an absentee, brought suit for a partition of the property. A curator ad hoc was appointed by the court to represent the absent defendant, who had no agent in the State. Experts were appointed to ascertain whether the property could be partitioned in kind.

They reported that a division in kind could not be made. The curator ad hoc opposed this report.

Testimony was then taken on the issue thus presented by the report of the experts appointed oy the judge, and a decree rendered ordering the sale of the property. The property was advertised and sold in accordance with the decree and Benjamin Oooper purchased the same for the sum of $10,000.

The proceedings were all regular and in conformity to law. No complaint [is made by the adjudicatee as to any irregularity thus far.

But when title was tendered to him and the price of the adjudication demanded, he refused to comply with his bid, whereupon the plaintiff took a rule upon him to compel him to comply with the adjudication. His answer to the rule is that he can not accept the title and pay the price because the co-heir and defendant, Louise Amelia Sauton, is and was dead at the time the partition proceedings was instituted, and that she had married and died, leaving issue. To sustain the allegations in his answer to the rule, he took by commission the testimony of a number of witnesses, relatives and connections of the defendant. He failed to prove by them that the defendant had ever married, or that she was dead.

On the contrary the testimony taken by commission satisfies us that the defendant is still living in the city of Guanajuato, Mexico, and that she is unmarried.

Being an absentee without an agent or representative, owning property in this State against which a right is asserted, the appointment of a curator ad hoc was the proper mode of proceeding to procure service on the absentee. Butler vs. Washington, 45 An.-.

The district judge made the rule absolute; we can find no error in the decree.

Judgment affirmed.


author: Breaux, J.

text:
    No. 11,242.
    Louise Destrehan, Widow of J. H. Harvey, vs. Louisiana Cypress Lumber Company, Limited.
    Evidence to prove custom was properly admitted.
    Custom or usage may be proved, not only to explain the meaning of terms to which is affixed a peculiar and technical meaning, but also to supply evidence of the intention of the parties regarding matters of which the contract itself affords indication, or it may be, no indication at all.
    The defendant bound itself to pay tolls on all timber towed to its mill through plaintiff’s canal; the measurement to be ascertained by reference to “Doyle’s Rule Tables,” as published in Scribner’s “Lumber and Log Book,” at charge of twenty cents per thousand, of inch board measure.
    The contract does not indicate the method to be followed in measuring a log; whether by its “average diameter” or by taking the diameter of the small end.
    Board measure is the number of feet a log will yield when sawed.
    When sellers of logs and those who have a right to collect toll on them do not choose to express their intention, in the contract, as to the mode of establishing the board measure, custom and usage furnish an explanation of the unexpressed intention.
    The contract contains no stipulation about deductions for hollow or peeky logs; custom was consulted to fix the amount due on board measure.

      The receipt of payment of toll on logs without stipulating that toll shall be paid on the steamboat or tug by which they were towed precludes the right of collecting toll on the steamboat or tug.
    Whatever an agent does within the scope of bis authority is, in legal effect, the act of the principal, who is entitled to its advantages and is also subject to its liabilities.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J. '

      T. J. Semmes & Legendre for Plaintiff and Appellant:
    The law requires that contracts should be carried out in good faith.
    Custom can not be pleaded against an express contract. The contract is the law between the parties — their rights aiuVobligations are to be determined by it. 29 An. 156; 21 An, 679; 15 An. Í36.
    An agent to whom is given the power of administration can not abandon or renounce a right of his principal, for the renunciation of a right is the exercise of a right of ownership. The power in such a case must be express and special. C. C. 2996; 16 L. 175; 12 R. 653; 6 R. 112; 10 M. 679.
    The acts of a principal will not amount to a ratification of a contract when they are based on the representations of the agent, who was himself deceived as to the real existence of the thing which was the object of the contract. 15 An. 268.
    A principal who disavows and repudiates the unauthorized acts of bis agent, as soon as he is informed thereof, can not be considered as having ratified them, 22 An. 196; 21 An. 162.
    A settlement is a contract. Lite all contracts, it can be set aside and corrected under allegations of error and fraud. 29 An. 350; 21 An. 278 ; 23 An. 178.
    A contract couched in clear and unambiguous terms can not be considered as meaning a different agreement than the terms used impart. 35 An. 273.

      Harry H. Hall and Sam. Henderson, Jr., for Defendant and Appellee.
   The opinion of the court was delivered by

Breaux, J.

It is alleged that the contract between plaintiff and defendant was executed only in part and this suit was instituted to compel compliance.

The plaintiff, represented by her son and agent, Horace H. Harvey, agreed to sell a certain piece of land to the firm of Joseph Rathbone & Co., upon which they bound themselves to construct a lumber and shingle mill, with a capacity of not less than 75,000 feet, lumber measure, per day.

In this act the plaintiff agreed to lease to them other parcels of and, on terms set forth in the act, also to grant certain privileges land rights of way.

The plaintiff owns a canal extending from a point near the Mississippi river to Baratarla Bay, a distance of about six miles.

The parties to whom she agreed to sell proposed to tow cypress logs to their mill, to be erected near the canal, a short distance from the river.

They promised to pay to the plaintiff a rate of tolls on all timber .by them towed through the Harvey’s canal, to be determined by taking the average diameter and total length of logs and ascertaining the lumber measurement of the timber by Doyle’s Rule Tables (Scribner’s Log and Lumber Book), at a charge of 20 cents per 1000 of inch board measure. The charges were to be 20 cents per 1000 of inch board measurement thus obtained. The .parties agreed to embody all the items, clauses and other conditions of this preliminary agreement in an authentic act, to be signed by them within sixty days.

In written suggestions from an attorney, at the time, acting for . plaintiff, the timber was to be measured as above stated.

In due time, after the agreement to sell had been completed, an authentic deed of sale was signed by the parties in which, for reasons not made clear, this act does not conform strictly with the preliminary agreement to sell. The purchasers bound themselves to pay to the vender tolls during a period of fifteen years from the date of the act.

No reference whatever is made to ‘‘average diameter” of logs, as set forth in the agreement to sell, also in che suggestive propositions in writing preceding the act.

In subsequent acts the defendant declared itself the successor to the rights and obligations of the partnership of J. Rathbone & Co. The mill was completed and commenced running in August, 1890. A log scaler was employed, selected by plaintiff’s agent, to measure the logs, each party paying one-half of his wages. He was discharged by plaintiff in May, 1892, when she became dissatisfied with the measurement. The scaler testifies that he followed the instructions of the parties concerned, by measuring the logs at the small end and by deducting for hollow or peeky logs and by not measuring logs that would not make merchantable lumber.

In reference to the toll on the tugs, the witnesses for the defendant testify — and their testimony is not contradicted by plaintiff’s witnesses — that it was stated by a representative of the plaintiff, before signing the contract, that it was silent about charges upon defendant’s boats while towing logs in the canal, and that therefore no charges could be required by plaintiff. (This testimony was admitted without objection.) It is proven.that the rule of measurement followed is general and that the harbor master of another canal, in which are towed larger numbers of logs, as an officer of the State, does not charge boats towing logs on which the toll is paid.

Plaintiff, in her pleadings, complains that the logs are not measured by Doyle’s Rule Tables.”

That the difference between the actual measurement and that required by the contract is equal to 40 per cent, to her prejudice.

That the defendant wrongfully deducts 10 per cent, for hollow ends.

That they measure even feet and allow no deductions for inches.

That she is entitled to tolls on all boats navigating the canal, as per her tariff of charges.

The defendant denies the correctness of plaintiff’s interpretation of the contract, or of “Doyle’s Rule Tables,” and alleges that the sealer measured the logs under the directions of her agent, at the smaller end; that he deducted for hollow butts and rejected worthless logs.

That this method of scaling in measuring cypress logs is always followed.

That no tolls on boats towing logs were to be charged.

That during two years bills were made out monthly and plaintiff received payment.

The defendant reconvenes and prays for the execution of its contract during the unexpired term, as heretofore executed.

Bill ok Exceptions.

The record discloses several bills reserved to the admissibility of testimony, of verbal declarations preceding the written acts, and to the testimony offered to. prove the custom of mill men and others in measuring timber; the action, plaintiff alleges, being upon a contract.

The questions being germane they will be taken up together.

The “ parol evidence rule ” assumes that parties in choosing the solemn form to express their agreement. intended to fully express their intention, removing them beyond bad faith or the treacherous tenure of “ slippery memory.”

As between the parties the instrument is conclusive as to the point which it covers. Several needful points to sustain plaintiff’s contention are not covered by the act.

“It being thus ascertained as a preliminary question, that the written instrument fairly and fully represents the intent of the parties at the time of its execution, the duty of the court becomes merely one of interpretation and construction of the language employed, the object being to ascertain the expressed meaning of the parties. That meaning once ascertained is incontrovertible by any parol evidence; no new words can be added; the court can not, as is said, travel out of the four corners of the paper. But the language to be interpreted is to be read in the light of all surrounding circumstances (as the phrase is), it being obviously impossible to tell what a man has said until it is ascertained what he has meant to say. Any relevant evidence, therefore, which fairly partakes of explanation, or is reasonably calculated to place the court in the situation of the parties at the time of the execution, will, in general, be receive^,” Best on Evidence, p. 231.

In reference to usage this commentator approvingly quotes from Phillips on Evidence: “ Evidence of usage has been admitted in aid ■of the construction of written instruments. This evidence has been received for explaining or filling up terms.” Optimus interpres rerum usus, p. 236.

This court has decided if a contract is silent as to quantity, parol evidence of the intention is admissible. Campbell vs. Short, 35 An. 447.

In the case before us for our decision there is a difference between the two acts, the promise to sell and the sale, in matter of ascertaining the measure.

In neither act reference is made to hollow butts, peeky logs or tolls on steamboats.

During two years the contract was executed without requiring payment for any of the items now claimed.

The purpose not being to contradict, vary or explain the written instrument, and it being obvious that the acts did not cover all the points of difference between the parties, evidence partaking of the nature of usage and evidence of explanation were admissible.

The evidence was properly admitted.

The act of the Legislature referred to by plaintiff’s counsel, No. 87, of 1892, is not directly authoritative as law in this case, for it establishes a scale or rule for the measurement of pine saw logs only, and can be applied in measuring other logs than pine, not as absolutely binding, but as indicating the estimate of the law-making power.

It is almost supererogation to state that contract and stipulations must determine in measuring the full contents of logs, and in all questions i-elating to saps, peeky lumber and other defects, the difficulty arises from the fact that the contract is silent as to these.

Doubtless the sellers of logs who think the usage and custom too liberal and favorable to the purchaser protect themselves by special contract as to measurement.

The contract is not full and explicit; debatable questions are unavoidable.

Both parties rely upon the “ Lumber and Log Book ” admitted in evidence.

The plaintiff offers the context from pages 69 to 82.

The defendant objects to that on pages 70 and 71, and contends that it is not covered by “ Doyle Rule Tables,” made the basis for calculating the measurement of logs.

Turning to pages 70 and 71, the head lines read:

LOG TABLE, “Round logs reduced to inch board measure, by Doyle’s rule,” and the instructions printed on these pages are: .turn to the next page for Doyle’s table.

It is exceedingly difficult to determine which is Scribner’s and which is Doyle’s.

It is “ Scribner’s Lumber and Log Book.”

His preface informs us that his original tables and those of Doyle were carefully examined and revised, and that the Doyle Log Tables * have been considerably extended.

Conceding that the instructions headed as above stated are Doyle’s, it does not follew, in adopting “Doyle’s Rule Tables ” as a basis of the measurement, that it includes the instructions or explanatory notes.

To illustrate: preceding Scribner’s tables, which form part of the book in evidence, there are directions and notes.

They are not part of the tables.

If the logarithms of Napier, as embodied by Prof. Loomis in his works, were agreed upon to abridge mathematical calculations, the agreement would not include explanatory or illustrative observations, particularly if it were not known whether they were by the former or the latter.

Moreover the plaintiff, in the preliminary agreement, stipulated that the measurement should be made by calculating the average diameter of the logs.

In the deed of sale the “average diameter” is omitted.

A right, well defined, was abandoned.

The rule of interpretation of authentic acts is the same as that of statutes.

It is a well settled rule of interpretation that when any statute is revised or one act framed from another, some parts being omitted, the parts omitted are not to be revived by construction. 1 Pick. (Mass.) 45; 9 Pick. (Mass.) 104.

“ It is decisive of an intention to prescribe the provisions mentioned in the latter act, as the only one on that subject which shall be obligatory.” 20 Wall., U. S.

' It was expressly stipulated in the act of promise to sell to insert “ average diameter’ in establishing the measure of logs.

The words are omitted in the act in which it was agreed to insert them.

They are not to be revived by construction.

The'plaintiff claims an amount on account of the 10 per cent, deduction on hollow or peeky logs, and for defective logs that would not make merchantable lumber, not measured.

Every witness, those for the plaintiff and those for the defendant, testify that the custom of log inspection of cypress timber, in round logs, when hollow or peeky, ten feet off length of logs shall be allowed and deducted as compensation for the defect, and that logs so defective that they will not produce merchantable lumber are not measured.

Counsel for the plaintiff does not question the correctness of the testimony proving custom.

They contend that the contract must be executed as written.

That the intention of the parties is determinable without regard to custom.

This is correct if the contract bears out the contention that the intention of the parties is expressed.

No reference is made in the contract to defective logs, but contains the following:

“At a charge of 20 cents per 1000 of inch board measure thus obtained” from the logs.

Board Measure.

There is no possibility of determining the “ board measure ” of each log without reference to rules of measurement established by custom. The act contains no statement upon the subject.

Both as relates to the “average diameter” and to defective logs, the parties not having agreed, custom must be consulted in determining the number of boards each log will yield. If “board measure” had been omitted from the contract, the question would arise as to the actual dimensions of a round log, without allowing for saw kerfs,worthless saps, crooked or otherwise defective logs; but “ board measure ” being inserted in the act, it must be determined'by reference to custom, and the actual quantity of lumber must be ascertained which a log will produce under the manipulation of a competent sawyer.

We understand board measure to be the number of feet of board which a log will produce when sawed.

The contract, the interpretation of which is involved in this suit, was executed without objection.

The agent of the plaintiff had charge of her interest under it, and the logs were towed through the canal, were measured and sawed into lumber.

Monthly settlements were made.

He had a log scaler of his own selection.

He conferred with the representatives of defendant as to the rules which should govern in measurement. They were followed. The plaintiff has not established error entitling her to relief. She is bound by the acts of her agent, acting within the scope of his authority. The settlements are final; it is not proven that they were made by the agent in ignorance of the facts. As a general rule the knowledge of the agent is the knowledge of the principal. Seixas vs. Citizens Bank, 38 An. 435.

“Whatever an agent does, within the scope of his authority, is, in legal effect, the act of his principal, who is entitled to its advantages and is also subject to its liabilities.” Waite A. and D., Yol. 1, p. 220. His duty was to attend to plaintiff’s interests under the contract. The supervision of the measurement of the logs was part of his duty. The plaintiff, after such a time, can not be heard to question the correctness of the payments on the ground that she was not aware of the rule followed in the measurement.

Toll on Boats.

Plaintiff claims toll upon tugs or other vessels employed solely in towing logs under the contract. Having fixed a toll, and there being no stipulation for extra charges, it includes the logs and the power towing them.

The testimony proves that in matter of toll in'other canals no extra charge is exacted from the steamboat towing logs upon which toll is paid.

Even Measure.

In reference to measuring the lumber in even length, the judgment appealed from is silent. In board measure, it is stated in evidence, even length only is taken and odd ends are thrown away as worthless. The contract, we have seen, provides for board measure.'

Our views coincide with those of the judge of the District Court in reference to the issues involved.

Judgment affirmed at appellant’s costs.


author: Nicholls, O. J.

text:
    No. 11,274.
    State of Louisiana vs. Arthur West.
    1. Evidence that a person other than defendant confessed that he himself committed the crime is inadmissible, it being hearsay and irrelevant. State vs. West, 45 An. (La.); Gray’s Case, Ir. Cir. Rep. 76; Welsh vs. State (Ala.), 11 South 451; 30 Pao. 7
    2. Objections can not be brought before this court through bills of exceptions taken for the first time on a motion for a new trial which should have been reserved during the progress of the trial itself.
    3. A verdict of “Guilty with mercy of the court” will he held to be one of “Guilty of manslaughter” in a case where the accused, having been indicted for murder and convicted of manslaughter, had succeeded in having the verdict and sentence set aside and was placed on trial a second time under the original indictment, but with an announcement from the district attorney and a charge from the court that the prisoner was only on trial for manslaughter. Accused will not be listened to in claiming (for the purpose of setting aside the verdict) that the verdict was one of “guilty of murder” and therefore not responsive to the charge actually advanced by the State.

      4. The presence of the defendant in court is not essential either on the trial of a motion for a new trial or one in arrest of judgment. The fact that on the trial of the motion for a new trial testimony is taken on behalf of defendant does not alter the case. There may be instances where counsel might desire the attendance of the client. In such cases counsel should so suggest to the court.
    APPEAL from the Eighteenth District Court, Parish of Lafourche. Caillouet, J.

      M. J. Cunningham, Attorney General, for the State, Appellee.

      Beattie & Beattie, for Defendant and Appellant.
   The opinion of the court was delivered by

Nicholls, O. J.

The defendant was indicted for the murder of Thomas Lyall at the September term, in 1892, of the District Court for Lafourche. He was tried, found guilty of manslaughter and sentenced to the penitentiary for one year.

He appealed to this court. On appeal the verdict of the jury and the judgment of the court thereon were set aside and the ease remanded. State vs. West, ante, page 15.

He was tried a second time and again sentenced to hard labor in the State penitentiary at Baton Rouge for the term of one year.

Prom this judgment he has appealed, relying upon objections urged in three bills of exception, a motion in arrest of judgment and an assignment of error. The first two bills cover the same ground, and are to the refusal of the district judge to allow certain testimony to be taken, the object of which the bills declare was to show that one James Baptiste had been suspected of killing Thomas Lyall; that he had been arrested upon a warrant issued on an affidavit made against him; that he had resisted arrest, saying he would not be arrested and sent to the penitentiary for the said killing, and other things admitting the killing; that in resisting arrest the said Baptiste was shot and afterward died from the wounds so received and that it was only after the death of the said Baptiste that the defendant West was arrested for the murder of said Lyall. The objection urged, by the State and sustained by the court to the introduction of this testimony was that it was irrelevant and hearsay.

Testimony of this character was by this court declared to be inadmissible when the case was first before us, as being hearsay. Defendant on the last trial offered it as rem ipsam. In his brief it is said: “The object of it was not to prove the truth of the statements made by Baptiste, but to prove the fact of his having made them to show the jury his belief and opinion as to the party who fired the shot that killed Lyall, and consequently to raise and substantiate any doubts in their minds as to the guilt of the defendant.”

We think the ruling of the court was correct. The testimony was irrelevant.

In Welsh vs. State, an Alabama case reported in 11 Southern Reporter, p. 451, the court said: “ The proposed testimony of the witness, Warren Lancaster, to the effect or which would have tended to show that one Lee Lancaster had admitted or confessed to the witness that he (Lee Lancaster) killed Will Welsh, for whose murder defendant was being tried, was the merest hearsay, wholly irrelevant and incompetent, and the court properly excluded it from the jury. 3 Brick Dig., p. ‘¿87, Sec. 592; State vs. Duncan, 6 Ired. 236; State vs. Haynes, 71 N. C. 79.

In People vs. Hall (Cal.), 30 Pacific, 7, defendant and one Kings-bury were arrested for an alleged burglary at the same time and place and by the same persons, and while under arrest they attempted to escape and were fired upon by their captors.

A physician was sent for to treat their wounds and Kingsbury died from the effects of- his wounds before any complaint was filed against either of the parties. In his own behalf defendant offered to prove that Kingsbury’s wounds were necessarily fatal, and that he so informed him at the time; that Kingsbury admitted to the physician that he fully realized he was mortally wounded, was on the point of death and had given up all hope of getting well.

That he was conscious of death, and that thus having a sense of impending death and without hope of reward he made a full, free and complete confession to said physician in relation to this alleged crime, stating that he himself had planned the entire scheme, and that Hall had nothing to do with it and was not connected with the guilt and was in all respects innocent of any criminal act or intent in the matter.

This evidence was objected to and excluded. Reciting these facts the Supreme Court said: “The rule is settled beyond controversy

that in a prosecution for crime the declaration of another person that he committed the crime is not admissible. Proof of such declaration is mere hearsay evidence and is always excluded whether the person making them be dead or not.” Citing Wharton Orim. Ev. (9th Ed.), Sec. 225; Greenfield vs. People, 85 N. Y. 75; Snow vs. State, 58 Ala. 372; Lyon vs. State, 22 Ga. 400; Kelly vs. State, 82 Ga. 444; 9 S. E. 171.

Stephen in his Digest of the Law of Evidence, Art. 22, refers to Gray’s Case, Irish Circuit Reports, page 76, as sustaining the same position, and that such evidence was irrelevant.

The third bill is to the action of the court in overruling a motion for a new trial made by the defendant — on the ground “ that the verdict of the jury was contrary to the law and the evidence, and that it was rendered in opposition to the law in such cases made and provided, and in opposition to the charge as to the law laid down by the judge, and that a continuance applied for by the district attorney and granted by the court was unadvisably and illegally granted for certain reasons.

“ The statement of the court appended to this bill is that the new trial was refused because it was of opinion that there was no error in the order granting the continuance, and because even if there had been error no exception was taken at the time to the ruling of the court, but on the contrary the accused, through his counsel, consented to go to trial and did go to trial under an agreement to use the testimony of the absent witnesses of the State taken before the committing magistrate in the presence of the accused. The court considered that the verdict of the jury was responsive to the charge of the court — the court having distinctly instructed them that the accused was on his trial and could only be tried for manslaughter— that that was the only charge against him and that the only verdict they could find against him was one of guilty or not guilty as the case might be.”

Where, during the progress of a trial under the rules of practice, objections are to be raised and bills of exception reserved as occurrences take place by which a party conceives himself to be aggrieved, and he fails to make such objections and reserve such bills, he can not after verdict for the first time raise such objections and through bills of exception then taken hold the position which he would have done originally — the lost ground can not be regained.

The record bears the court out in its statements — and his ruling was correct. Defendant moved to arrest the judgment for the reason that the verdict is illegal on the face of the record and is in nowise responsive to the matters at issue herein, in that the verdict is written upon an indictment for murder and finds respondent “ guilty at the mercy of the court,” When in truth and in fact your respondent was simply on trial on a charge of manslaughter, he having been hitherto acquitted of the charge of murder found and contained in the indictment found against him and on which the present verdict is written. The court overruled this motion and sentenced defendant to one year’s imprisonment, as has been seated.

Defendant says of this motion, it is based on the ground that the verdict of guilty, with the mercy of the court, is the verdict found against the accused on the last trial and that this verdict is written upon an indictment for murder, thus appearing to convict the accused unqualifiedly of murder, when, in point of fact, having been once tried under the same indictment and found guilty of manslaughter, he could only have been tried for and found guilty of manslaughter.”

“True it is that the judge charged the jury that they could find him guilty of only manslaughter, and true it is that some days previous to the trial there is an entry upon the min.utes in which it is stated the accused would be tried only for the crime of manslaughter. But the jury in this case had no reason to know of such entry, andlooking at the verdict as it is written it is evident that the jury were heedless of the charge of the judge.”

We do not understand defendant’s counsel to claim that, when this case was remanded by us to the lower court for a new trial, it was necessary for the State to frame a new indictment for manslaughter against the defendant, and arraign and try him upon that indictment. We understand him to recognize that he was properly tried under the original indictment and arraignment, and that the effect of the first verdict was at most to entitle him under the indictment for murder to be tried for manslaughter, and to only contend that when the jury returned into court with a verdict it should have been specifically “ guilty of manslaughter,” and not “ guilty," which he claims is .the verdict under the indictment for murder.

On the 8th of March, 1893, we find the following minute entry:

“ State op Louisiana vs. “Arthur West. Indictment for Murder.
“ The accused, Arthur West, being present in court, and representedby his counsel, Beattie & Beattie, Esqs.
“ On motion of the district attorney and by consent the court ordered that the trial of this cause be fixed for Monday, March 13, 1893.
“ The district attorney stating in open court that he would try the accused on the original indictment for murder, but only on the charge of manslaughter.”

In opening his charge the district judge used this language:

“ The accused is on trialfor the manslaughter of Thomas Lyall. An inspection of the indictment shows that he was originally charged with murder, but on a former trial he was acquitted of that crime, and he is now only charged with manslaughter, and can only be tried for that crime.”

Having made this statement he, throughout the whole of the balance of the charge, confined himself to instructing them on the law of manslaughter.

Defendant’s counsel concedes that he was on trial for manslaughter; the district attorney at no time took position otherwise; the district judge in his charge so advised the jury, and in his sentence has acted on that fact as unquestionable. The jury was thoroughly informed of the issue it had to pass on, and its verdict can not reasonably be held to apply to any other than that submitted to it. No one but the defendant himself insists that he was convicted of murder. He can not successfully take such a position to set aside the verdict. There is no significance in the fact that the verdict was written upon the indictment. No one could misunderstand its purport.

It could have been returned 'orally and in the same words — its meaning was not changed from what it would have been had it-been so rendered.

Defendant assigns as error “that during the trial of the motion for a new trial, wherein testimony was adduced for and against him, he was not in court but was confined in the parish prison, and was thus refused the privilege of„being confronted with the witnesses, in violation of Art. 8 of the Constitution ot the State; and further, that upon the trial of the motion in arrest of judgment he was not present in court, but was confined in the parish prison.”

The record shows that testimony on behalf of the defendant was-taken on the motion for a new trial, but no witnesses for the State-appear to have been placed on the stand.

We do not think that any constitutional provision was violated by defendant’s absence at that time.

This court has on several occasions declared that the presence of the accused on the occasion of trials of motions for a new trial and' in arrest of judgment was not essential.

Defendant finds in the fact that' on the trial in this case of the motion for a new trial testimony was taken, a reason for making a distinction between it and the cases cited. It is true that there maybe instances where the attorney of an accused might desire the presence of his client, but such cases happening it would be a very simple matter for him to make a suggestion to that effect to the court.. A request to have the defendant brought into court would certainly not be denied.

In State vs. Simien, 36 An. 924, where the accused claimed he-was entitled to be present on the trial of a motion on his behalf fora continuance, at which ir was asserted testimony was taken, the court said: “ The transcript fails to show that any testimony was taken on the day mentioned on an application for an attachment for a witness. Even had it been shown — and the prisoner was absent at the time — it was a proceeding of that character that his presence thereat was not essential; ” citing State vs. Clark, 32 An. 538, and State vs. Somnier, 33 An. 237.

We see nothing in the record which would go to show that the-prisoner was refused the privilege of being present. Had he asked to be present there is no ground for assuming he would have been met with a refusal.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby Affirmed.


text:
    No. 11,243.
    M. G. Hughes vs. Myra C. Murdock et al.
    [Reported by syllabus only.]
    When, by subsequent order of court, imperfections in a transcript are cured, a pending motion to dismiss will be overruled as matter of course.
    A plaintiff who attacks an act not per se wrongful, but which may be perfectly ' consistent with good faith and fair dealing, must aver and specify the facts giving to it a different character.
    Up to judgment the pleadings are taken most strongly against the pleader, and unknown, unreeited facts are not assumed in his favor.
    The Legislature of a State, unlike Congress, which can not do anything which the Federal Constitution does not authorize, may do everything which the State Constitution does not prohibit, and constitutional prohibitions are not enlarged by construction beyond their terms.
    Article 113 of the Constitution of 1868 prohibiting the adoption of children by special legislative act does not prohibit legitimation by such an act; the two subjects are separate and distinct.
    No one can be said to have any vested right in any existing legal capacity in reference to any future contract or advantage to result from that capacity. He who to-day is by law a forced heir in expectancy may to-morrow by a new law be declared liable to be disinherited by will or incapable even of succeeding áb intestato. It may be assumed as a general rule that the mere capacity or incapacity of particular classes of persons to contract or to inherit depends-upon the legislative will.
    On Motion to Dismiss Appeal.
    The opinion of the court was delivered by Watkins, J.
    On the Merits.
    The opinion of the court was delivered by Nicholls, O. J.
    APPEAL from the Civil District Court for the Parish of Orleans.. Monroe, J.

      James Wilkinson for Plaintiff and Appellant.

      J. P. Blair for Defendants and Appellees.


author: Fenner, J.

text:
    No. 11,263.
    The State of Louisiana vs. Emma Williams.
    1. The plea of autrefois acquit involves questions of mixed law and fact, and, when not demurrable on its face, is properly referred to a jury.
    2. The test whether the plea of autrefois acquit is a sufficient bar is whether the evidence necessary to support the second indictment would have sustained a legal conviction on the first.
    3. Under the application of this test it has been constantly held that acquittal under an indictment for larceny of goods alleged to belong to A is no bar to subsequent indictment for larceny of the same goods alleged to be the property of B, where it is shown that the first acquittal was due to the misnomer in the allegation of ownership. The second jeopardy was not for the “same offence,” and the evidence essential to sustain the second charge would necessarily have been fatal to the first. The authorities to this effect are so numerous and concordant that we feel bound to follow them.
    4. Our law is liberal in allowing amendments of misnomers in indictments, and it would be better practice for the State to avail itself of such privilege, but as it is not required as a duty, the failure to amend does not forfeit any legal right of the State.
    5. Absence of counsel for the prisoner, when the case is regularly called for trial, is no bar to proceeding when theprisoner expresses his readiness and consent thereto, and this furnishes no legal ground for new trial.
    APPEAL from the Criminal District Court for the Parish of Orleans. Moise, J.

      M. J. Cunningham, Attorney General, and Lionel Adams, for the State, Appellee.

      W. L. Thompson for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The defendant, being prosecuted for grand larceny of certain goods of the property of Harry H, Waters, filed a plea of autrefois acquit based upon a former information, trial and acquittal for grand larceny of the same goods at the same time and place. The identity of the particular acts involved under the two informations is not disputed, but the first record exhibits an information for larceny of goods alleged to be “ the goods and chattels of one Louise Waters.”

At the suggestion of the district attorney the court referred the issue of autrefois acquit to a jury, to which ruling defendant objected and excepted.

There is no merit in this exception. The judge’s course was proper -under all authorities. State ex rel. Voorhies vs. Judge, 42 An. 414; 1 Bish. Or. Frac., Secs. 812, 816; Whart. Or. P. and P., Sec. 480; Archbold Or. P. and P., pp. 369, 371.

The issue went to the jury, which was instructed by the court that “ if they find as a fact that the prisoner was acquitted under the first information because of a misnomer in the allegation of ownership, such acquittal would not be a bar to a second prosecution, wherein the ownership of the property alleged to be stolen was laid in another and different person.”

To this instruction the defendant excepted, and as it involves the whole merits of the plea of autrefois acquit, it may be considered together with the motion in arrest afterward filed.

The jury, after hearing evidence and argument, returned a verdict rejecting the plea.

We have not reached our conclusion on the question involved in this plea without grave consideration and some doubt ,'as to what might be our opinion if the question were res nova; but we find such a consensus of authority on the subject that we think it safest to follow it.

The precise question has not been heretofore presented in this State, but we have, on germane questions, frequently recognized the rule that “the test whether the plea of autrefois acquit is a sufficient bar in any particular case is whether the evidence necessary to support the second indictment would have been sufficient to have procured a legal conviction on the first.” State vs. Kehoe, 13 An. 243, 244; see, also, State vs. Vines, 34 An. 1079; State vs. Helveston, 38 An. 314; State vs. Faulkner, 39 An. 811.

And it is under the application of this rule that it has been constantly held that acquittal under an indictment for larceny which laid the property of the goods in the wrong person was no bar to a subsequent prosecution under an indictment stating the goods to be the property of the legal owner, for the reason that in either case it was essential to prove the property of the goods as laid in the indictment, and that evidence showing the goods to be the property of A under the last indictment would not have supported a conviction under the first indictment for stealing the goods of B, but would have been 'necessarily fatal to it. State vs. Risher, 1 Rich. (S. C.) Rep., p. 219; State vs. Revels, 1 Busbee (N. 0.),p. 200; State vs. Birmingham, Ib., p. 120; Morgan vs. State, 34 Texas, 677; Rex vs. Green, 7 Cox Cr. C. 186; R. vs. Henderson, 1 Car & March, 328.

There are numerous cases strictly analogous, in which the same principle has been applied. Pennsylvania vs. Huffman Addison, p. 14; Com. vs. Mortimer, 2 Va. Cases, 325; Com. vs. Wade, 17 Pick. 395; People vs. Warren, 1 Parker C. C. 338; Hite vs. State, 9 Yerger, 357; Rex vs. Cogan, 1 Leach, 448. See also Arch. Cr. P. and P., p. 364; 1 Whart. Cr. L., Secs. 556, 557; 1 Bishop Cr. L., Sec. 1052.

The provision of our Constitution that no person shall “ be twice put in jeopardy for the same offence” does not differ from the like provision contained in the Constitution of the United States and of the other States of this Union. They all agree that to entitle the party to its benefits the second jeopardy must be for the “same offence.” The principle on which the numerous authorities quoted rest is that the charge of stealing goods, the property of A, is not the “ same offence” with a charge of stealing goods the property of B, and that the evidence essential to support the one charge would necessarily destroy the other. While our law grants great latitude of amendment in cases of misnomer, and while it would be better practice in such cases for the State to avail itself of this privilege, the law does not make it a duty and we can not enforce it as such.

We have considered the cases of State vs. Ware, 44 An. 594; State vs. Harris, 42 An. 980; State vs. Hanks, 39 An. 235, and State vs. Everage, 33 An. 120, but they do not bear on this case. The two first and the last dealt with questions of disputed ownership, in which the ownership, as laid in the indictment, was held sufficient to sustain it under the proof; and the other was a case in which, on discovery of error in the ownership as laid, the indictment was duly amended. But no decision has ever held that an indictment for larceny of goods the property of A could be sustained by proof of larceny of goods the property of B, in absence of timely amendment. This is the principle on which the decisions rejecting the plea of autrefois acquit in such cases rest, and as the courts and text-writers are in accord, and no suggestion to the contrary by any authority whatever is referred to Or can be found by us after diligent search, we are not disposed to break the force of unanimous precedents and to isolate our own jurisprudence on such a question.

The jury was properly instructed by the judge, and having heard evidence and found, as a fact, that “the prisoner was acquitted under the first information because of the misnomer in the ’allega" tion of ownership,” we must accept that conclusion as final and as bringing the case within the strictest application of the authorities.

These views cover all points in the case except the refusal of the motion for new trial based on the allegation that “defendant was forced to go to trial without the presence or assistance of her counsel.” The statement of the judge shows that the case had beenr regularly fixed with full notice to defendant and her counsel; that the counsel had left the court room before the case was called up, without leaving any word with any person; that the judge ordered a fruitless search for him in the building and on the adjacent streets; that he then asked the defendant if she was willing for the trial to go on and she replied that she was, and that the trial accordingly proceeded.

There is no reversible error in the judge’s action. The case is stronger against the defendant than that of State vs. Walker, 39 An. 20, where we said: “This court has repeatedly held that when accused has no counsel, or when his counsel is absent, and when he makes no application for assignment of counsel or for continuance on any ground, but goes to trial without objection, the judge commits no error in permitting the trial to proceed, and after conviction defendant can not assign such defects as legal ground for new trial. 25 An. 381; 36 An. 91; 37 An. 606; 36 An. 923.”

Judgment affirmed.


text:
    No. 11,275.
    The State of Louisiana vs. Joseph Blanchard.
    This court lias no appellate jurisdiction in a criminal case in which a fine exceeding $300 has not been “ actually imposed,” and in which the punishment of death or imprisonment at hard labor could not be inflicted.
    APPEAL from the Eighteenth District Court, Parish of Lafourche. Caillouet, J.

      M. J. Cunningham, Attorney General, for the State, Appellant.

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

Fenner, J.

The defendant is prosecuted for an offence denounced by Acts Nos. 5 and 62 of 1892, the penalty for which as prescribed by the law is that, if convicted, he “shall be fined not exceeding $500 or imprisoned not exceeding sixty days, or both, at the- discretion of the court.” He filed a motion to quash the indictment, which was maintained by the judge, and from that judgment the State has appealed.

A motion is made to dismiss the appeal on the ground that the case is not within the appellate jurisdiction of this court. The Constitution, Art. 81, confines our jurisdiction in criminal cases to “criminal cases on questions of law alone, whenever the punishment of death or imprisonment at hard labor may be inflicted or a fine exceeding $300 is actually imposed.”

Obviously the test of our jurisdiction depends on affirmative answer to one of two questions, viz.: 1. Is the case one in which the punishment of death or imprisonment at hard labor may be inflicted? 2. Is it a case in which a fine exceeding $300 has been actually imposed?

The only possible answer in this case to both questions is a negative, and that is fatal to the appeal, as we have twice recently decided in cases identical with this. State vs. J. M. Smith, 39 An. 231; State vs. B. F. Smith, Id. 320.

Appeal dismissed.


text:
    No. 11,239.
    Dr. James Rigney vs. Dr. Geo. N. Monette.
    1. Although plaintiff and defendant were both residents of the same parish at the inception of the suit, yet if plaintiff subsequently removes to a different parish the defendant having a cause of action against him is not compelled to follow him at his new domicil, but under Art. 375, C. P., may bring his demand by way of reconvention in the original suit, provided, at least, he. does not thereby retard or delay the progress of plaintiff’s action.
    2. The object of the proviso to C. P. 375 is to secure a common forum for the setflement of controversies between the same parties, and to dispense a defendant who has been impleaded in the court of his domicil from the necessity of seeking his adversary in a ¡different forum in order to propound an action against him.
    3. The question as to the forum in which the reconventional demand may be urged depends on the conditions existing at the time when it is filed.

      A PPEAL from the Civil District Court for the Parish of Orleans, i i Théard, J.

      W. S. Parkerson for Plaintiff and Appellee.

      Merriek & Merrick for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

Plaintiff filed this suit, claiming damages for violation of a contract of sale of defendant’s professional practice and good will in the city of New Orleans, on February 5, 1891.

On February 27, 1891, defendant filed an answer of general and special denials. No further proceedings were taken until February 1, 1892, when defendant filed a supplemental answer containing a re-conventional demand. The latter set forth a claim for damages for malicious prosecution and arrest, and alleged that the plaintiff resided out of the parish of Orleans.

So matters stood for nearly a year, when, on January 6, 1893, plaintiff filed a rule on defendant to show cause why the supplemental answer and reconvention should not be stricken from the record on the ground that it changed the nature of the defence from an action ex contractu to an action ex delicto, and that the same is not permissible in law.”

No action was taken on this rule until February 2, 1893, when, the cause being set for trial before a jury which had been empaneled, the rule was argued and submitted to the judge, who made the same absolute, to which the defendant reserved his bill of exceptions.

The case, thus shorn of the reconventional demand, went to trial before the jury, resulting in a verdict and judgment against defendant for $500, from which the latter has appealed.

We think the judge erred in striking out the reconventional demand. Although both plaintiff and defendant resided, at the date of institution of the original suit, in the city of New Orleans, it is admitted that the.plaintiff subsequently removed to the parish of Pointe Ooupee and was residing there at the time when the reconventional demand was filed, and so remained when the case was tried.

Art. 375 of the Code of Practice, after defining the nature of demands which may be pleaded in reconvention and declaring that they must be “ necessarily connected with and incidental to the main action,” proceeds to establish the following exception: “ Provided, that when the plaintiff resides out of the State, or in the State, but in a different parish from the defendant, said defendant may institute a demand in reconvention against him for any cause, although such demand be not necessarily connected with or incidental to the main cause of action.”

The obvious purpose of the proviso is to establish a common forum for -the settlement of legal controversies between the same parties of whatever nature, and to dispense a defendant who has been impleaded in the court of his domicil, from the necessity of seeking his adversary in a different forum in order to propound a coexistent cause of action against him.

Counsel for plaintiff contends that the right to file such a demand in reconvention must be determined according to the conditions existing at the inception of the suit, and that, as both parties then resided in New Orleans, such an independent demand could never be filed in that suit.

As we look at it, the question of the forum must depend on the conditions existing at the time when the demand is filed. That is certainly the ordinary rule. Defendant, desirous of -bringing suit on a demand against the plaintiff, found that the latter, though still prosecuting his own suit against defendant at the latter’s domicil, had himself withdrawn to a different jurisdiction, and the question presented was whether he was bound to follow him there, or whether, under Art. 475, O. P., he could compel him to answer in the forum which he had himself invoked. Defendant then found himself sued by a plaintiff who resided “in a different parish from defendant,” and, in that case, the law expressly authorized him “ to institute a demand in reconvention against him for any cause,” and to have their differences settled at one time and by the same court. The parties stood in the precise case for which the law provided and all the reasons underlying its precept were fully applicable. Suppose the plaintiff had removed to a different State, would the defendant have been bound to follow him there, because at the inception of his suit he resided here? We think not; and the law making no difference between residence in a different State and residence in a different parish, we can make none. The mere fact that defendant’s cause of action arose after the institution of plaintiff’s suit seems to us of no moment. His right existed at the time when he filed his reconventional demand and the only question was as to his right to prosecute it in the forum in which plaintiff was suing him. There is no complaint of the tardiness of his demand or that it delayed or interfered with the progress of plaintiff’s suit. On the contrary, the reconventional demand rested in court for eleven months before the trial of the case and before even the motion to strike it out was made. We can see no possible reason under such circumstances why the counter-claims between the parties should not have been tried and decided together. The defendant had the right to such a trial, and without considering the merits of the verdict and judgment we think justice requires that the case should be restored to the status quo before trial, and that all the issues should be heard and determined together.

It is therefore adjudged and decreed that the verdict and judgment appealed from be avoided and reversed, that the defendant’s supplemental answer and reconventional demand be reinstated and the case be remanded to the lower court for further proceedings accoz-ding to law, appellee to pay cost of appeal.


text:
    No. 11,289.
    The State ex rel. D. J. Reid vs. G. A. Fournet, Judge.
    1. Prohibition is not a writ of right, and in cases where the jurisdiction is even doubtful, it is not readily granted when there exists an adequate remedy by appeal.
    The nature of a cause of action is not to he confounded with its sufficiency. The nature of the action determines jurisdiction and when that sustains the jurisdiction the latter can not be defeated by mere insufficiency of the allegations or of the proofs.
    3. The petition in this case alleges acts committed under the present as well as under the former terms of relator in office; and even if the latter were open to relator’s exception (on which we express no opinion), that would only eliminate them from the petition, without abating or defeating the action.
    If the respondent judge has committed error in overruling relator’s exception , that error does not lie in maintaining jurisdiction, but in sustaining a partially insufficient cause of action; and for such error the only appropriate relief would be by appeal.
    ^PPLIOATION for Certiorari and Prohibition.

      Clegg & Thorpe, Wm. Sehwing and E. N. Pugh for the Relator.

      E. D. Miller, District Attorney, D. B. Gorham and It. P. O’Bryan for Respondents.

      F. O. Zacharie, Amicus Curias.

   The opinion of the court was delivered by

Fenner, J.

Art. 196 of the State Constitution provides:

“ The Governor, Lieutenant Governor, Secretary of State, Auditor, Treasurer, Attorney General, Superintendent of Public Education, and the judges of all the courts of record in this State, shall be liable to impeachment for high crimes and misdemeanor, for non- feasance or malfeasance in offices, for incompetency, for corruption, favoritism, extortion or oppression in office, or for gross misconduct, or habitual drunkenness.”

Art. 201 provides that “For any of the causes enumerated in Art. 196, district attorneys, clerks of court, sheriffs, etc., shall be removed by judgment of the District Court of the domicil of such officer; and it shall be the duty of the district attorney to institute suit in the manner directed by Art. 200, on the written request and information of twenty-five resident citizens and tax-payers * * * In all such eases the defendant, the State, and the citizens and taxpayers, * * * or any one of them, shall have the right to appeal, both on the law and the facts, from the judgment of the court.”

In full conformity with these provisions a suit was filed in the District Court of defendant’s domicil, presided over by the respondent judge, to remove him from office as sheriff and ex-officio tax collector of the parish of Calcasieu.

The petition set forth that the relator had been thrice elected to said office for successive terms, having been elected for his present term in April, 1892.

The petition alleges that “ during his incumbency for former terms, and during his present term of office, the said Reid has been guilty, both as sheriff and as tax collector, of repeated acts of non-feasance and malfeasance, and incompetency and corruption, and favoritism and extortion and oppression in office, and of gross misconduct.” The petition then proceeds to set forth various specific acts done by him as sheriff. It then further alleges that “ as tax collector said Reid has been guilty of many and repeated acts of non-feasance» •malfeasance, corruption, favoritism, incompetency, extortion and ■gross misconduct, said acts extending through the former years of his said incumbency down to and including his present term of •office; ” and it sets forth various specific acts in support thereof.

Most of the specific acts set out are laid as dating under his prior terms of office; but at least two are not so laid, but may well have occurred during his present term, viz., the charge of not keeping correct cash books as required by law, and the charge of gross misconduct and oppression based on his arrest of members of a committee of the police jury appointed to investigate his accounts, which is simply averred to have occurred in 1892.

The petition concludes with the following allegation: “ Your petitioner therefore avers that considering the many acts of extortion, favoritism and corruption as detailed in the foregoing, and his wanton disregard of the laws enacted for his guidance and for the protection of the citizens, the said D. J. Reid should be removed from his said office;” and it concludes with a prayer for that relief.

The defendant appeared and filed a plea or exception to the following effect, viz., “ that the petition charges him with acts of commission and omission, alleging them to have been done or omitted prior to the commencement of his present term of office * * * and this defendant shows that this court has no right, authority or power under the law to inquire in this suit into said acts laid as of dates anterior to his said present term of office or by reason thereof adjudge him to be removed from his said present office; and further, that the petition aforesaid shows no cause of action; wherefore defendant prays that as to all such alleged acts of commission and ■omission charged in said petition as of dates prior to the commencement of defendant’s present term of office, this suit be dismissed at plaintiff’s cost.”

Subseqently, and after the' exception had been submitted, the plaintiffs filed an amended petition, setting forth sundry additional charges, based on acts done during the defendant’s current term of office.

The exception or plea in bar was thereafter decided by the judge, who overruled the same.

The defendant thereupon filed the present application for writs of certiorari and prohibition, alleging, substantially, that the grant of power to the judiciary to remove elective officers is limited to the ■cases- provided in the articles of the Oonstitution; that said cases only refer to and embrace acts committed by an officer during the term of office from which he is to be removed; that outside of these cases courts have no power or jurisdiction, ratione materise, to entertain suits for removal; that, therefore, in overruling his exception and in assuming jurisdiction over the suit in question the district judge transcends his authority and is guilty of usurpation, and that his proceedings therein would be coram non judice and void, and would inflict on relator an irreparable injury.

The respondent judge files answer maintaining his jurisdiction and denying relator’s title to the relief sought.

After much reflection we have come to the conclusion that the case presented by relator does not successfully impugn the jurisdiction of respondent’s court over the cause in which his action is arraigned.

The Constitution undoubtedly confers upon that court the power to entertain an action for the removal of relator from office for any of the causes enumerated in Art. 196. No other court has authority to entertain such an action. The quotations which we have made from the petition show, beyond question, that the action brought against relator was an action to remove him for the very causes enumerated in Art. 196. It* is specifically and repeatedly alleged that he has been guilty of “ acts of non-feasance, malfeasance, incompetency, corruption, favoritism, extortion and oppression in office, and gross misconduct,” and these are the very causes enumerated in Art. 196. To say that the court had not jurisdiction over such an action is simply to disregard the express authority conferred by the Constitution.

These allegations alone, taken in connection with the prayer of the petition, establish and fix the jurisdiction of the court. If the petition contained no other allegations and had set forth no specific facts whatever, its deficiency in that respect would give rise to no question of jurisdiction, but simply to an exception of vagueness and insufficiency. So if the specific acts charged are not such as, if proved, would sustain the action, this also would not raise a question of jurisdiction, but would only authorize an exception of no cause of action, and that is really the substantial character of relator’s exception in the court below. The nature and the sufficiency of a cause of action are not to be confounded. The nature of the action determines the question of jurisdiction, and when it sustains the jurisdiction, all questions of its sufficiency, under the allegations of the proofs, pass under the proper cognizance of the court, with power to determine them according to the law and the facts.

This action is in its nature an action to remove relator for causes enumerated in Art. 196 of the Constitution. As to whether the special facts alleged establish the' existence of any one of those causes, that is a question going, not to the jurisdiction of the court, but to the merits of the cause, and the court has the same power to decide those merits, whether* presented by exception on the facts alleged or after trial on the facts proved. In neither ease can the decision be arraigned under our supervisory power, when within the court’s jurisdiction.

The Constitution, in enumerating the causes for removal in Art. 196, uses very general language and abstains from defining the particular acts which constitute them.

In applying the remedy provided much discretion is necessarily left to the judiciary in determining the Mud and degree of acts which are embraced within the spirit and meaning of the Constitution, and sedulous precautions are taken to prevent the abuse of this discretion by granting the right of appeal and providing for the summary disposition thereof.

The judge may have been right or may have been wrong in overruling relator’s exception. On that question we do not hint an opinion. Even if he had maintained it, the quotations we have made from the petition and from the exception itself, show that it would have eliminated only part of the cause of action, and would not have involved an entire dismissal of the action. If he was wrong, his error consisted not in maintaining his jurisdiction, which was incontestable, but in maintaining a partially insufficient cause of action. In that case relator will find his only appropriate relief in an appeal to this court, which the law secures to him.

Prohibition is not a writ of right, and even in cases of doubtful jurisdiction we do not readily grant it when there is adequate remedy by appeal. State ex rel. Follett vs. Judge, 32 A,n. 1182; State ex rel. Weber vs.. Judge, Id. 1092.

It is therefore ordered that the provisional writs herein issued be dissolved, and that relator’s application be denied.


author: Watkins, J. Fenner, J.

text:
    No. 11,279.
    State ex rel. John Cawley vs. Judge of Fourth District Court, Parish of Grant.
    A party confined in jail under a decree o£ a competent court is not entitled to an absolute and immediate release from confinement upon making a surrender of bis property and upon obtaining the judge’s order of acceptance thereof. He must await the action of the meeting of his creditors.

      Non constat that his cession and discharge may not be successfully opposed.
    yi^PPLICATION for writ of Mandamus.

      Edwin G. Hunter for Relator.
    Respondent in propria persona.

   The opinion of the court was delivered by

Watkins, J.

It appears from the petition of the relator that, at the March term of the District Court of Grant parish for the present year, 1893, he plead guilty to the charge of selling liquor without paying a license, and was sentenced to pay a fine of $200 and costs, and in default of payment he was to suffer imprisonment in the par* ish jail for a period of four months, in keeping with the terms and conditions of Revised Statutes, Sec. 910, and he was imprisoned in default of paying fine.

That, availing himself of the provisions of the insolvent laws of the State, and particularly of those relating to debtors in actual confinement, he applied for their benefit for the purpose of regaining his liberty. That, notwithstanding the judge accepted his surrender and granted him the stay of proceedings against his person and property that is usual in such cases, he has refused to release him from custody and suffers him to be detained in prison. That the fine imposed must be placed upon the footing of any mere contractual obligation to pay money, and from which he is legally relievable by means of a discharge under the insolvent law. His averment is “ that, after the order accepting the surrender was signed, he was, by virtue of that order, entitled to be released from custody, and that he has suffered great injury and a denial of justice at the hands of the said judge by his refusal to order his release from custody.”

The respondent returns that he declined to release the relator from imprisonment because his order accepting his surrender and granting him a stay of proceedings directed the convocation of a meeting of creditors on the fourth Monday of May, 1893 — which will occur on the 22d day of the month, a date that is still in the future — and that the relator is not entitled to liberation from imprisonment until said meeting shall convene and take action in the premises.

The code declares that “the creditors can not refuse the surrender made according to the forms ordained by law, unless in case of fraud on the part of the debtor.

“It operates the discharge of the restraint of the debtor’s person and delivers him from actual imprisonment.” R. O. C. 2176.

It is the creditors and not the judge who can discharge the insolvent. Thomas Burdon vs. His Creditors, 20 An. 364.

After the cession and acceptance of a surrender by the judge, all of the property of the insolvent vests in his creditors. R. S., Sec. 1791.

It is the duty of the judge when granting an order staying all proceedings against the insolvent’s person and property to likewise grant an order, convoking a meeting of creditors. R. S., Sec. 1790.

At the meeting of creditors their deliberations in respect to the sale or disposal of the property surrendered, or for any other object relative to the interest of the mass of creditors, the opinion of the majority of the creditors in number and amount shall prevail. R. S.,. Sec. 1799.

Any creditor of an insolvent debtor is entitled “to oppose the appointment of a syndic, or to charge fraud against the debtor * * * within ten days next following the meeting of creditors,” etc. R. S., Sec. 1802.

And in addition to these general provisions clearly indicating that the insolvent can not be discharged immediately upon the judge’s order accepting his surrender, the further specific declaration of the statute is that “any debtor who may be imprisoned under a writ of arrest, and against whom no charge of fraud is pending, may be discharged by making a surrender of his property to his creditors.” R. S., Sec. 1819; 2 La. 503, Caldwell vs. Bloomfield.

From the foregoing provisions of law, we take it to be clear that there is no possible efficacy in the stay-order accompanying the judge’s acceptance of a surrender, except to operate the future ex-eruption of the debtor from arrest and the molestation of his property by individual creditors. And while the acceptance of his surrender operates the transfer of the insolvent’s property to his creditors, yet the creditors, collectively, can alone administer same and make orders looking to his discharge.

It is evident that the relator’s application is premature and must be refused.

It is therefore ordered, adjudged and decreed that the application of relator for a peremptory mandamus be refused at his costs.

On Application for Rehearing.

Fenner, J.

Relator, imprisoned under criminal sentence, can not stand in better positionjthan one under civil arrest, and even in the latter case, under Sec. 1819, Revised Statutes, the debtor claiming release must show not only a surrender accepted by the judge, but also that no charge oftfraud was pending against him. The latter can only be established^after'the expiration of the delay within which the law provides that charges of fraud may be made, viz.: within ten days after the meeting of creditors. Such seems to have been the view of the statute’takenjjby this court. Martin’s case, 2 Mart. O. S. 78; Caldwell vs. Bloomfield, 2 La. 508.

We may add that relator’s case is not, in pur opinion, within the letter or meaning of Sec. 981, Revised Statutes. Hé is not “sentenced to pay a fine and costs and to stand committed until they are paid,” in which case.his imprisonment would not discharge the fine. His sentence is, in effect, alternative — i. e., to pay the fine or, in default of payment, to be imprisoned for four months. If he serves his term of imprisonment the fine will be discharged. To such a case the statute does not apply.

Rehearing refused.


author: Watkins, J.

text:
    No. 11,297.
    The State ex rel. City of New Orleans vs. the Judge of the Twenty-First District Court, Parish of St. John the Baptist.
    It is no longer an open question that certiorari can only be resorted to when proceedings are absolutely null.
    It can not be made use of as a substitute for a motion to dismiss an appeal antecedent to the return day thereof.

      y^PPLIOATION for writ of Certiorari.

      J. L, Bradford for the Relator.

      W. 8. Benedict and Bobt. J. Dugué for the Respondent.
   The opinion of the court was delivered by

Watkins, J.

The following are the grounds on which relator claims relief at our hands, viz.:

“John McDonogh, Jr., and Joseph Soniat Dufossat, Jr., on August 27, 1841, brought suit No. 20,505, in the First District Court in the parish of Orleans, against Alexis Fontenot, Jean Pierre Fontenot, Joachim Fontenot, Reine Fontenot (widow of Alexis Millet). Justine Fontenot (wife of Jean Batiste Audisson), and Felix Becnel, for slander of their title to lands in St. John the Baptist parish, held in indivisión, one-third by McDonogh and two-thirds by Soniat Dufossat. The defendants were duly cited, but before answer the case was removed by New Orleans and Dufossat, under an act of the Legislature, to the District Court for St. John the Baptist parish, by supplemental petition filed therein, July 11, 1859, alleging that since the filing of the original petition in 1841 McDonogh had died testate, and that New Orleans had succeeded to his rights, and also that Joseph LeBourgeoise and Felix Becnel had succeeded to the claims and pretensions of the original defendants, and praying citation against them, etc. They were cited in 1859, but no answers or exceptions were filed, no defaults taken, or other proceedings had, and the cause was regularly continued, and stood so until February 26, 1892, when New Orleans filed a supplemental petition, alleging the death of Dufossat, leaving a large number of unknown heirs; that the claims and pretensions of Becnel and LeBourgeoise in the lands had vested in Joseph L. LeBourgeoise, Jr., residing in St. John the Baptist parish, who continued to slander the title of plaintiff, and refused and failed to bring suit to try the same, etc.; prayed for service upon him, LeBourgeoise, Jr., and for judgment on title, and for damages, etc. He was cited, and in due time filed exceptions and answer, and from time to time certain other persons, alleging themselves heirs or other representatives of the original defendants, came in voluntarily as defendants and filed exceptions and answers.

“This jactitation suit is yet untried, and is now No. 713 of the docket of the Twenty-first Judicial District Oourt for St. John the Baptist parish.

“ March 2, 1892, New Orleans brought suit against all the heirs of Dufossat for partition of the same lands in the District Oourt for St. John the Baptist parish, then Twenty-sixth District, under the No. 474, but when the district was changed to No. 21, the docket number became 40. The title of defendants to an undivided two-thirds of the lands was admitted, petitioner’s own right to an undivided third was alleged, and partition by sale prayed. The defendants were all cited, and after several supplemental petitions were filed for appointment of curators ad Jtoo, etc., all answered, admitting plaintiff’s title to one-third and taking issue only on the mode of partition.

“ The case was regularly tried March 24, 1893, and after taking testimony as to the proper mode of partition, the court, in proceeding to judgment, was interrupted by an attorney at law, who represented Mr. Joseph L. LeBourgeoise, Jr., then also present in court, and read to the court and to counsel for the parties a “protest,” alleging the protestant was one of the defendants in suit No. 713 and protesting, against further proceedings in the partition suit until all parties: therein made themselves parties-plaintiff in suit No. 713, and until all the defendants in said suit No. 713 were made defendants in the-partition suit. On oral objection by counsel for plaintiffs and defendants in suit No. 40 the court refused to allow the protest to be filed, or to consider the same, or make it a part of the record in same, on the ground that protestant had not alleged any interest in the partition suit or asked any order in the premises. To this ruling-protestant filed his bill of exceptions, and the court pronounced and signed judgment on the issues made in suit No. 40, decreeing the partition by sale, and making the usual orders for the execution of the judgment. Thereupon, the protestant moved the court for an order of suspensive appeal to the Supreme Oourt, and the same was granted instanter, on a bond for costs, in the sum of $200, the return day being fixed on the third Monday in January, 1894. No other steps have been taken in the District Court, and the judgment in partition remains inoperative.

“ On May 5, 1893, New Orleans filed her petition-in this court for a writ of certiorari to the judge of the Twenty-first Judicial District Oourt for St. John, and on May 6 the same issued, returnable the 11th of May. The prayer of the petition is that the record in the. partition suit No. 40 may be certified and sent up, in order that the validity of the proceedings may be inquired into and determined, and that the order of appeal be declared illegal and the appeal dismissed, and for costs.”

The respondent judge returns that the protest of Joseph L. LeBourgeoise, Jr., referred to by the relator, was prepared and read by his counsel as soon as the partition suit was called for trial, as stated in the bill of exceptions, and not as stated by the relator, after the testimony and argument had been heard.

He admits that a third person, not party to the original suit, filed, in open court, a motion for a suspensive appeal from the judgment rendered in the partition suit and that he granted the appeal, returnable on the proper return day to this court, which is the proper appellate tribunal, conditioned upon the appellant furnishing bond.

He further represents that he granted the appeal under and in conformity to the provisions of Art. 571 of the Oode of Practice, as he was bound to do. That his court had jurisdiction of the parties and of the subject-matter of the partition suit. That the appeal has been perfected, and that his action in the premises is not open to review by certiorari. He further shows that certiorari can not be substituted for a motion to dismiss the appeal in question antecedent to the return day thereof.

There is no escape from the conclusive force of the reasons assigned by the respondent judge.

In State ex rel. Railroad vs. Riley, 43 An. 177, this court said:

“It is no longer an open question that certiorari can only be resorted to when proceedings are absolutely null.’ State ex rel. Broussard vs. Justice, 39 An. 776; State ex rel. Wentz vs. Judge, 32 An, 1222.”

The only purpose of the writ is to test the validity of the proceedings of another court extrinsically. O. P. 855, 857.

The case brought is an appealable one, and the relator’s complaint is that it has been appealed to this court, but improperly.

The orderly and proper course for relator to have pursued was to await action in this court on the appeal. It has mistaken its remedy. It is therefore ordered and decreed that the demand of relator for certiorari be rejected at his costs and the restraining order be set aside.