text:
    No. 287.
    First Circuit Appeal.
    WM. J. CARAWAY ET AL. v. MRS. LYDIA L. LEBLANC AND HUSBAND.
    (December 30, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Acts — Par. 4; Donations — Par. 20; Obligations — Par. 29, 30.
    In this case an old man, a widower, who in his last days lived with a daughter and her husband with the understanding that they were to receive one-half of the . community estate for their trouble, services and expense, made a cash deed to them of one-half the community property for a stated consideration which was, in fact, the agreement to take care of him. Held, that the supposed cash sale was null and void because it was, in fact, a donation of all of his property in contravention of Article 1497 of the Civil Code.
    2. Louisiana Digest, Obligations — Par. 170.
    Where an act of sale intended to -recompense a daughter, and her husband for her services to the father is null and void, the daughter and her husband are entitled to a quantum meruit under Article 1249 of the Civil Code.
    3. Louisiana Digest, Costs and Fees — Par. 45.
    Unjier Code of Practice, Article 549, the District Court must make the party cast pay the costs, but the Appellate Court may apportion the costs as it deems equitable, according to • Act No. 229 of 1910, as amended by Act No. 265 of 1918.
    Appeal from the 15th Judicial -District, Parish of Beauregard, Hon. Thomas F. Porter, Jr., Judge.
    This is a suit to have an act of sale declared a nullity. The sale was declared a nullity but a sum of money was awarded defendants, under their pleading in the alternative, for their services to the deceased before he died. • From this judgment the defendants appealed.
    Judgment affirmed and amended as to costs.
    Powell & Lecompte, of De Ridder, attorneys for plaintiff, appellee.
    Ped C. Kay, of De Ridder, attorney for defendant, appellant.
   ELLIOTT, J.

The plaintiffs; William J. Caraway, Mary J. Caraway, wife of R. A. Smith; Joseph C. Caraway, Sallie L. Caraway, wife of H. S. Crowder; Charles B. Caraway, Jr., Modena V. Caraway, wife of Robert Alston; Fannie Caraway, wife of Joseph White; Lucy Hughes, wife of Oliver Kennedy; Clyde Hughes, Ethel Hughes, wife of Delos Mizell; Freddie Hughes, Ezra B. Hughes, Lydia Hughes, wife of A. J. Burks, alleging' themselves to be, together with John H. Caraway and Lydia B. Caraway, wife of Theodore LeBlanc, the sole and forced heirs of Charles B. Caraway, who have recently departed this life intestate leaving an estate consisting of an undivided half of one hundred and sixty acres of land, described in their petition, etc., being his half of the legal community of acquets and gains which had existed between him and their mother, who had departed this life intestate a few years before him, and that a certain act purporting to be a sale dated January 15th, 1923, executed and signed by Charles B. Caraway in favor of Mrs. Lydia L. LeBlanc and Theodore LeBlanc and whereby he had purported to sell and deliver to them his half of said property for $500.00 cash' was not in fact a sale but a disguised donation whereby the said Charles B. Caraway was divested practically of all his property and the petitioners of their rights as his forced heirs, they sued Mr. and Mrs. LeBlanc to have the act decreed to be null and void and their interest in the property recognized as forced heirs. The Hughes family are the children of a predeceased sister. John H. Caraway, a brother, declined to join in the suit and was made a party defendant, but he has taken no part in the litigation.

The plaintiffs allege that the act in question is a donation, that no price was paid, that their father did not reserve to himself after same enough for subsistence, that the attempted transfer is null and void for the whole. Mr. and Mrs. LeBlanc in then-answer allege that there was no cash paid, that Charles B. Caraway, father of Mrs. LeBlanc, came to them after the death of her mother and requested them to come and live with him, make their home with him and take care of him for the balance of his life and for their trouble, services and expense he would make them a title to his half of the community estate above described.

Mrs. LeBlanc referred the matter to her husband. They agreed to his request and came and lived with him for the balance of his life.

He was about 75 years old at the time and lived about 4 years after they came to take care of him. He was old, feeble, and sick, troubled with heart attacks and required constant attention.

They furnished him with board, washed and laundered his clothes, gave him careful attention, and he made them the title in question in compliance with his promise.

They allege that their title is good, but if the court should decide otherwise, then they pray to recover against the other heirs the sum of $855.00 on account of their services to him.

The district judge decided that the title was null and void but gave them judgment for $283.00, with interest, against the other heirs, plaintiffs in the suit, several of whom, however, appear to have transferred their interest to defendants, and such as have done so, of course, have no further interest in the litigation. The defendants have appealed.

The evidence supports the allegations of the defendants in regard to the service rendered Charles B. Caraway and his promise to them.

It is unusual to find such unanimity among the plaintiffs and the defendants as to the services and other honesty and sincerity, their only difference being as to what is right according to facts established without dispute.

The only difference we find is in the estimated value of the property between other witnesses; but not between the plaintiffs and defendants.

The facts show that Charles B. Caraway was feeble when his wife died, although he continued to work on the farm and sometimes on the road, as he had been accustomed to do, except for the last two years he was unable to do anything except things described as piddling.

Mr. and Mrs. LeBlanc came to live with him and take care of him pursuant to his request and under the promise stated that they, Mr.- and Mrs. LeBlanc, had previously lived at different places; made crops on shares; had no home of their own; all the others had secured homes of their own; consequently they only were in a position to make their home with him.

He required attention by his children all the time, on account of his infirmities. He was so deaf that he could not be called and when wanted it was necessary to go to him and let him know he was wanted.

The evidence shows that all his children were attentive, thoughtful, came to see how he was getting along, waited on him faithfully, but he expressed to friends his wish that Mr. and Mrs. LeBlanc might have title to 40 acres of the place, with the residence and improvements on it; wanted to make them a title but, learning of ■ his undivided half interest, he decided to make them a title to his half interest in the whole tract as best he could do. He felt that he ought to do it because of the care they had bestowed on him.

Equality in right and inheritance by children from their parents is the fundamental principle and policy of the Civil Code of Louisiana. It also teaches moral and legal rights as practical law.

According to our Civil Code, Arts. 215 et seq., Mrs. LeBlanc and her husband, also because he was her husband, owed as a duty to her father all that she did for him, because he stood in need of same and all of his other children owed him the same duty and all within reach are shown to have discharged that duty as best they could. They had their own homes and families and could not conveniently, as defendants were able to do, leave their homes to live with him. It was better, of course, to let him live in his own house, therefore all could not render him the constant service of the nature and kind rendered by Mr. and Mrs. LeBlanc. The others who came to set-up and help take care of him had, 'in a way, to be taken care of by defendants, because they lived in the house.

It was the idea of Mr. Caraway that the act in question would serve as an onerous and remunerative donation.

In this connection we have considered the language of C. C. Art. 1526 and Landry vs. Landry, 40 La. Ann. 229, 3 South. 728.

The act, however, practically divested Mr. Caraway of all his property; the few head of cattle and hogs were of very small, value, not sufficient for his subsistence, and such an act is against public policy and is null and void under the letter of the law and its policy. C. C. Art. 1409.

But the Civil Code does not leave children who have rendered services for which a recovery should be permitted without a proper remedy, but gives them the right to recover for any service for which a recovery is proper in equity. C. C. Art. 1249. In a case like the present, when the act intended to recompense is null and void, the courts should allow as a quantum meruit, under C. C. Art. 1249, a proper recovery against the- other heirs in the same suit if prayed for to the end that justice be done. We .will not undertake an examination of the conflict between the decisions of the Supreme Court urged on us by the plaintiffs in their brief, based on different constructions of C. C. Arts. 1249, 1497, and 1526, as it does not appear to be necessary to do so in this case.

The services rendered Charles B. Caraway by Mr. and Mrs. LeBlanc were appreciated by him; he wished to recompense them; the title he made out cannot be given effect as a will; but under the law C. C. Art. 1249 the district judge very properly gave them judgment for the sum which he concluded was right and equitable, after taking into account all the facts and circumstances of the case. We will, therefore, not interfere with his judgment in that regard. Under the law, the district judge was compelled to tax all the cost against the parties cast in the suit. We can make a change in that respect on appeal without further disturbance of his judgment. Acts 1910, No. 229, as amended by Act 265 of 1918 (Editor’s Note), which we will do in behalf of the defendants.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be affirmed, save that the cost of court in both courts is taxed and to be paid an equal share of each of the actual litigants in the case, plaintiffs and defendants alike.


source: Caselaw Access Project

author: ELLIOTT, J.

license: Public Domain

text:
    No. 1749.
    First Circuit Appeal.
    OPELOUSAS-ST. LANDRY BANK & TRUST CO. v. ANGELAS S. FONTENOT ET AL.
    (December 30, 1924, Opinion and Decree.)
    (February 18, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    '1. Louisiana Digest — Appeal—Par. 483.
    A transcript, of appeal must be filed on or before the return day expires, under penalty of dismissal.
    Appeal from the 16th Judicial District, Parish of Evangeline, Hon. B. H. Pavy, Judge.
    Motion to dismiss the appeal sustained.
    Dubuisson, Perrault & Burleigh, of Opelousas, attorneys for plaintiff.
    L. A. Fontenot and A. H. Garland, of Opelousas, attorneys for defendant.
   ELLIOTT, J.

On motion to dismiss the appeal. The appeál in this case was granted on June 25th, 1924, and made returnable on August 18th, 1924.

The record was filed in this court on October 17th, 1924, two months after the return day had expired.

Pláintiff and appellee has moved to dismiss the appeal on the ground that the record was filed too late.

Defendants and appellants, E,mar Fuselier and Honoré Fuselier, oppose the motion to dismiss, urging that the delay in filing the record was caused by the act of one of the counsel for plaintiff and appellee.

Assuming that we have original jurisdiction over the facts affecting the jurisdiction of this court (Section 24, Art. 7 of Constitution 1921) we find in the record two affidavits by the clerk of the trial court.

The affidavit made by him October 27, 1924, distinctly shows that the delay was caused by an oversight on his part and that the alleged interference by one of the counsel of appellant, which consists of a conversation in regard to certain documents which should have formed part of the record, only took place on October 2nd, 1924, long after the legal delay had already expired.

Appeals to the Court of Appeal shall be returnable to the respective domiciles of said court or to such other places as each may by rule provide, in the manner and within the time fixed by law.

The rules of practice regulating appeals to and proceedings in the Supreme Court shall apply to appeals and proceedings in the Court of Appeal, so far as they may be applicable until otherwise provided. Constitution 1921, See. 27 of Art. 7. It is settled jurisprudence that a transcript of appeal must be filed on or before the return day expires, under penalty of dismissal.

The above appeal is, therefore, dismissed at the cost of appellants.


text:
    No. 1954.
    First Circuit Appeal.
    O. E. GUILLORY v. POLICE JURY OF THE PARISH OF EVANGELINE.
    (December 30, 1924, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana- Digest, Courts — Par. 126.
    The court of appeal has jurisdiction in an appeal from a decision on an injunction by a district court. Constitution, Article 7, Sections 29 and 35.
    ON THE MERITS
    2. Louisiana Digest, Parishes — Par. 23.
    As a result of the law requiring fees in excess of salaries to be paid into the parish treasury, there arises an implied power in the police jury to have an audit and investigation made for the purpose of recovering for the parish any sums that may be due from the Clerks’ Salary Fund.
    Appeal from the 16th Judicial District, Parish of Evangeline, Hon. B. H. Pavy, Judge.
    This is an injunction suit by the clerk of the court to prevent the police jury from having an audit and investigation made. There was judgment for the defendant police jury, and plaintiff appealed.
    Judgment affirmed.
    Dubuisson, Perrault & Burleigh, of Opelousas, attorneys for plaintiff, appellant.
    W. S. 'Gardiner, of Ville Platte, attorney for defendant, appellee.
   ELLIOTT, J.

The plaintiff, alleging that he had been clerk of court of the Parish of Evangeline from the time of its organization in 1911 until his successor was elected, qualified and took over the office in 1924; that the police jury was about to undertake an investigation and audit of the account books, wherein are recorded the fees, charges and disbursements of the clerk’s office of the Parish of Evangeline during his term of office and would publish the result of the investigation.

That the police jury has no right under the law to make or have made said audit or investigation;

That the proposed investigation and publication is not intended to serve public purposes, but it is contrived and intended to injure him personally and bring him into disrepute as a lawyer, etc.;

That some of the members of the police jury are actuated by malice and ill will toward him in urging said audit and investigation; that he fears same will irreparably injure his good name, fame and prospects as a lawyer; sued out an injunction preventing the police jury from having the audit and investigation made.

. The police jury filed an exception to his petition on the ground that it did not disclose a right or cause of action, which the district- judge sustained and dismissed his suit.

The plaintiff has appealed.

The police jury, acting through the district attorney, appeared and filed in this court an exception that the district court did not have any right to enjoin the police jury, as was done, and that this court has no jurisdiction ratione materia of this appeal.

The district court had jurisdiction to grant the injunction. It has jurisdiction “in civil matters regardless of the amount in dispute — and in all cases — where civil right — are involved and in all cases where no specific amount is in contest” — Constitution, Art. 7, Sec. 35. This court has jurisdiction of this appeal. Its jurisdiction extends to all cases in which the district courts have exclusive .original jurisdiction, regardless of the amount involved, Constitution, Art. 7, Sec. 29.

The motion to dismiss is overruled.

ON THE MERITS

Parishes are recognized in our law and in the Constitution of 1921 as governmental divisions' of the State.

The Constitution, Art. 7, Sec. 73,- provides that clerks of court may be paid a salary and that the fees collected in. excess of their salary may be disposed, of as required by law.

The law, Acts 1916, No. 142, Sec. 5, provides that if at the end of a year there remains any part of the Clerks’ Salary Fund, it shall be turned into the parish treasury. A provision like that contained in the Constitution of 1921 is contained in an amendment to the Constitution of 1913 adopted in 1917. See Act 155 of the Extra Ses. 1916. And a provision like that contained in Act 142 of 1916 is found in Act 14, Sec. 5, (Amend. 1921, No. 124, p. 314) of Extra Ses. of 1918.

See also Revised Statutes, Sec. 2642, as to right of police jury to require an accounting as to parish funds.

As a result of the law requiring fees in excess of salaries to he paid into the parish treasury, there results an implied power in the police jury to have made an audit and investigation for the purpose of recovering for the parish any sums that may be due them from the Clerks’ Salary Fund. State vs. Miller, 41 La. Ann. 53, 5 South. 258, 7 South. 672. Timothy Byrne vs. Parish of East Carroll, 45 La. Ann. 392, 12 South. 521.

The judgment sustaining the exception of no cause and no right of action was correct and must be affirmed.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from herein be and the same is hereby affirmed, the plaintiff and appellant to pay the cost of the exception in both courts.


author: MOUTON, J.

text:
    No. --
    First Circuit Appeal
    FANNIE COLBERT BARABIN. v. TECHE TRANSFER COMPANY, INC.
    (December 30, 1924, Opinion and Decree.)
    (February 18, 1925, Rehearing Refused)

      (Syllabus by the Editor.')

    1. Louisiana Digest, Evidence — Par. 53.
    In a damage suit for death alleged to have been caused by the negligence of another the general rules of pleading and .evidence that plaintiff must bear the burden of pleading the facts constituting the alleged fault or negligence of the defendant and giving proof necessary to sustain the demand apply.
    2. Louisiana Digest, Evidence — Par. 53.
    Where the evidence of an alleged collision of truck and bus supposed to have caused a death shows no damage to either auto; held the plaintiff has not proved negligence of bus driver causing death to her husband who was riding in the truck and fell or jumped oilt.
    3.Louisiana Digest, Evidence, 53.
    No recovery under Art. 2324 of the Civil Code can be had where there is no allegation or proof that another person was caused to do an unlawful' act or assisted or encouraged in the commission of it.
    (Civil Code, Art. 2315. Editor’s note.)
    Appeal from the Parish of Iberia. Hon. James Simon, Judge.
    This is a damage suit brought by a widow for herself and minor child on account of the death of her husband.
    There was judgment for defendant and plaintiff- appealed. •
    Judgment affirmed.
    Porteous R. Burke, of New Iberia, attorney for plaintiff, appellant.
    Burke & Smith, of New Iberia, attorneys for defendant appellee.
   MOUTON, J.

Plaintiff alleges that her husband, Roman Barabin, while riding in a truck belonging to his employer, was killed on the public highway in the Parish of St. Mary in a collision which occurred with a motor Bus Transfer operated at the time by defendant company. She alleges that Albert Green, the driver of the Bus at the time, and the agent of defendant company, carelessly, negligently, willfully and flagrantly, in violation of the law of the road, ran into the truck on which her husband was riding with the result that he' was by the impact thrown to the ground, or that to save himself from the impending impact, as a reasonable, prudent man would do, jumped from the truck to avoid the threatened danger, from which he suffered a fracture of the second or third cervical vertebra, causing his death.

Plaintiff sues for herself, and as the tutrix of a minor child issue of her marriage with Roman Barabin, claiming individually $7500.00; and a like amount for the minor, against defendant.

The demand was rejected by the District Judge. Plaintiff appeals.

Plaintiff first urges the doctrine of res wsa loquitur — that is to say, that a presumption of negligence arises from the fact itself of the accident, and relies in support of this contention on the case of Lykiardopoulo vs. New Orleans Light and Power Co., 127 La. 309, 53 South. 575. In the case cited a young Greek, a coal heaver, was in the act of shoveling coal into a pile, when the tube exploded and the steam and hot water came out of the fire door of the boiler, scalding him. In that case the Court said plaintiff could not be expected to have any information of the cause of such an accident, and that it had to assume defendant was in a position to know what had brought about the injury. Here, the occupants of the car, obviously, were the parties who were in. a position to know the cause of the collision, and the information of the incidents which accompanied the accident was equally obtainable to plaintiff and defendant. A case of this character falls under the general rules of pleadings and proof governing . ordinary damage suits. In such cases the burden of pleading the facts constituting the alleged fault or negligence, and the proof necessary to sustain the demand, rests upon the complainant, and the rule above referred to, invoked by defendant, does not apply.

The proof shows that Alfred Moresi was driving a Ford Truck and Albert Green was driving a Motor Bus for defendant on the public road in the Parish of St. Mary. The record shows that while driving on the highway, and before, reaching the place where the accident occurred, Moresi and Albert Green, a colored man, had had a quarrel altercation, in which Mr. Moresi. attempted to beat Green, who made his escape. Moresi continued on his way in the truck, followed by Green in the Bus, both traveling northward towards Jeanerette, Green was alone in the Bus, but there were four men in the truck, besides Mr. Moresi who was driving. Mr. Hydel, a white man, sat on the front seat to the right of Mr. Moresi, while Barabin, the deceased, sat in the rear of the truck, between Alexis and Mansen, two colored men. They were riding in an old Ford Car which had been converted into a truck and had no top. Alexis, Barabin and Man-sen were seated on a box which had been nailed in the rear of the truck. The proof shows that Alexis was facing northward the direction the Truck was moving and the other two southward from which direction the Bus was coming. It is well established that the Truck and Bus were moving at a rapid speed, about 25 or 30 miles an hour. The proof shows that when this Truck and Bus reached that part of the road about opposite the home of one, Mr. Dumesnil, that Barabin fell from the truck into the highway, receiving injuries from which he died shortly thereafter. It is claimed by plaintiff, as is alleged in her petition, that Green who was driving the Bus ran into the truck negligently, by the impact throwing Barabin to the ground, or forcing him to jump out of the truck to save himself from the impending impact. Mr. Moresi says the bus struck the hub cap of the rear wheel of his truck, causing it to change its course, and ‘to swerve from the right side of the road to the left side; that he immediately looked around and noticed that Barabin was missing from the car. He says, he examined the truck the evening of the accident, and the next morning. He found a dent in the rear wheel of the car where the hub cap seemed to have been polished from an automobile tire rubbing on it. It is doubtful, from the evidence of the other witnesses, if such a dent existed, and if it did, that it was of recent date. At most, this dent was slight. This was the only injury on the truck which could have been ascribed to the pretended collision. Hydel, who was seated on the front seat and facing north, did not see the Bus hit the truck, nor did Alexis, who was also facing in the same direction. As Mansen appears to be idiotic he was not sworn, and did not testify. Hydel and Alexis, both say, they felt a jolt, heard Mansen holler that the boy had fallen overboard, that they turned around and saw the Bus coming in the rear, and which at the time was about 4 or 5 feet from the truck. Neither of these two witnesses say that the jolt or jar they felt was severe. Mr. Dumesnil testified in the case and says the accident occurred opposite his home which it is shown is situated not far from the roadside. He was sitting, he says, on his front gallery, heard one holler a man was killed, and saw a man knocked in the air. He says this man, which the record shows was Barabin, had gone up in the air 3 or 4 feet above the truck and higher than the Bus. There is nothing to show that Mr. Dumesneil has any interest whatsoever in the result of this litigation or that .he is connected by ties of friendship or kinship to any members of defendant company. He was in a position at the time to see what occurred, and we have no reason to doubt that he has given a true narrative of the occurrence. Admitting for the sake of the argument, that the parties in the truck felt a jolt, that the car was deflected from its course, and that a slight imprint was seen on the hub-cap, still, with all of this, it would be impossible to believe that a collision from the rear producing such resülts, could have had the .effect of throwing Barabin several feet above the truck and higher than the Bus. This is altogether incredible. Plaintiff alleges also that if her deceased husband was not thrown from the truck by the force of the impact, that to save himself from the impending danger, he jumped out of the truck. If he had jumped it is equally unbelievable that he would have leaped above the truck and Bus. There is no evidence direct or inferential to support either of these theories. It may also be observed that not one of the other occupants of the truck was thrown therefrom, or came near suffering any such result. If a collision had occurred with sufficient force to throw Barabin up in.the air in the manner stated by Mr. Dumesneil, unqestionably, the others who were in that truck, and were not in any way expecting a collision, would have also been hurled out of that truck, one or two, if not all three. The proof is that Mr. Moresi had, a while before the pretended collision occurred, attempted to beat Albert Green, driver of the Bus, who managed to make his escape from him. He was no doubt afraid of Moresi, and so testified during the trial. This proof negatives the idea that immediately after he had escaped a thrashing, that he would have deliberately run into the truck from the rear. If he attempted to pass Moresi on the left, it was because the truck was barring his way. If he proceeded at an unusual speed in passing on the right, he was simply making effort to get away from his would-be assailant. He succeeded in passing ahead of the truck, and there is no evidence to support the contention that in so doing, or before, that he collided with it, or drove the Bus in such a way as to threaten Barabin or the other occupants of the truck with immediate or impending danger. The accident was due to some other cause, and not the result of the act, fault or conduct of Green, the agent of defendant company. Green, was in no sense a tort feasor and in no way assisted or encouraged Moresi in the commission of an act which could have caused' the accident, to justify a recovery for plaintiff under article C. C. 2324 if judgment could be rendered under the provisions of that article in a case of this character where no •such issue presented by the pleadings or considered.

Judgment affirmed.


text:
    No. -
    First Circuit Appeal.
    MITCHELL VINING v. LOCK, MOORE & CO., LTD.
    (December 30, 1924, Opinion and Decree.)
    (February 18, 1925, Rehearing Refused)

      (Syllabus hy the Editor.)

    1. — Louisiana Digest, Master and Servant-Par. 154» 160 (e), 160 (i).
    Where the employer refuses to grant a written agreement under Employers’ Liability Act, Sec. 17, of Act 20 of 1914, as amended by Act 38 of 1918, regardless of whether the amount of compensation is in dispute, the employee is entitled to judgment in court under Sec. 18 of Act 20 of 1914, as amended by Act 247 of 1920.
    Appeal from the Parish of Calcasieu Hon. Jerry Cline, Judge.
    This is a suit under the Employer’s Liability Act No. 20 of 1914, for compensation for loss of leg.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Williams & Williams, of Lake Charles, attorneys for plaintiff, appellee.
    Hardin & Hardin, of Leesville, attorneys for defendant, appellant.
   MOUTON, J.

Plaintiff, an employee of defendant Company, suffered the loss of a leg while in its service. His demand for compensation for the injury is fully admitted by the company. He alleges, that he has nothing in writing to show that he has an agreement with defendant company, and which he also avers, has refused to grant him a judgment or approval of his claim. It is contended by defendant that •it is only after the parties have failed to agree out of Court upon the amount of compensation due, that a cause of action arises • under Sec. 18, of the Employer’s Liability Act. In support of this contention, defendant relies on the case in Colorado vs Johnson Works, 146 La. 68; 83 South. 381. The Court, in that case, stated, that it seemed under the provisions of Sec. 18 of that Statute, it was only after the failure of the parties to agree, that a suit could be brought for compensation. This was not directly presented as an issue in that case in which the Court in the body of the opinion, said, it seemed it was so provided for in the section above quoted.

In a later case, Daniels vs. Shreveport Refining Corporation, 151 La. 800; 92 South. 341, where suit was brought for compensation, a plea of prematurity was filed, which defendant contended should have prevailed. In that case it was shown that plaintiff had been paid regularly in excess of the maximum allowance, includding doctor’s bills, and for a surgical operation. The defendant contended there w.as no dispute about the obligation, and therefore no occasion for a lawsuit. The Court in passing on this contention held, that there was a dispute between the parties as defendant would not admit liability for a definite amount, for a definite period or that the disability was within any particular class under the statute. After so stating the Court said: “According to section 17 of the statute, if the parties had agreed upon a settlement, the agreement would not halve had effect without the approval of the Court.” Section 17 permits all parties in interest to settle all matters of compensation between themselves. This section then provides that all agreements of settlement shall be reduced to writing, in accordance with the substantial provisions of the statute, and shall be approved by the Court. This written agreement of settlement must tlien. be presented to the Court upon the joint verified petition of both parties. When approved by the Court, this settlement must be immediately entered as an ordinary judgment and which is given its usual force and effect. Section 18, which follows, says in case of a dispute over, or failure to agree upon a claim for compensation, either party may present his verified complaint to the judge setting out certain averments referred to in that section. It will be noticed that this right to file this verified complaint is permitted when there is a “failure to agree upon a claim for compensation.” When, however, such an agreement exists, there is no necessity for the filing of a complaint provided for under Sec. IS, as the parties are, in such a case, governed by section 17 of the statute, must have their agrément “reduced to writing,” and submitted to the Court for approval. Here, plaintiff avers that his claim has not been reduced to writing, and that defendant refuses to grant him a judgment of approval so that, he may have the security for his claim which a judgment would afford, as is contemplated by section 17 of the statute. As there is no dispute between the parties or failure to agree upon a claim of compensation, it became the duty of defendant to file a joint petition' with plaintiff, after reducing their agreement of settlement to writing, for its approval by the Court. Obviously, defendant refuses to make this joint application with plaintiff although it does not in any way whatever dispute the claim of plaintiff for compensation, either as to amount or periods of payment. This refusal gave plaintiff, under the provisions of section 17, a right of action to have his claim merged into a judgment, and have it satisfied as other judgments as provided for in the section. Counsel for defendant says, it was never intended by the statute that when the employer pays the compensation as it matures, he should be penalized by the payment of Court costs and have his property encumbered by judicial mortgage, resulting from the inscription of a judgment. It can not be disputed that in the .case of any ordinary, claim, should the debtor refuse to give his ereditor a conventional mortgage for the security of the debt, that the latter by proper proceedings can have his claim converted into a judicial mortgage which necessarily would encumber the property of his debtor. The exercise of the same right could not be denied the employee who had obtained an agreement with his employer for compensation under the provisions of the statute in question. It was possibly with the view of avoiding the expenses which invariably result from ordinary judicial proceedings that the Legislature adopted section 17 of the Act, that the employee, at lesser cost, might be granted the security which flows from an ordinary judgment. • '

Counsel for defendant company recognized the fact' that the compensation law with its amendments provides for a distinct class of cases, and dispenses with the formalities common to ordinary actions. He says, and very properly, that the provisions of the Act can not be enlarged, and that its provisions must be interpreted and applied as written. Our purpose in the. instant case is to so construe and apply the provisions of section 17 of the compensation statute. In so doing, we must hold that upon the refusal of defendant to join plaintiff in having the Court approve their agreement in reference to the compensation due him, that he was entitled to a judgment recognizing his right thereto as was decreed below.


author: MOUTON, J. ELLIOTT, J.

text:
    No. .....
    First Circuit Appeal.
    ARMOUR AND COMPANY, LTD., v. WISE AND McCALPIN ET AL.
    (December 30, 1924, Opinion and Decree.)
    (May 5, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    I. Louisiana Digest, Prescription — Par. 109. 110.
    A demand for the value of goods sold in bulk in violation of Sec. 4 of Act 114 of 1912 or for the loss the creditor has suffered or would suffer is one in damages and is an offense or quasi offense and prescribed by one year under Civil Code, Art. 3536.
    Appeal from the Parish of Vernon. Hon. Hal A. Burgess, Judge.
    This is a suit to recover damages. A plea of prescription was filed and overruled.
    There was judgment for plaintiff and defendant appealed.
    Judgment reversed and plea of prescription maintained.
    Ped C. Kay, of De Ridder, attorney for plaintiff, appellee.
    S. I. Foster, of Leesville, attorney for defendant, appellant.
    ELLIOTT, J., dissents.
   MOUTON, J.

Pewell Brothers were in November, 1920, the owners of a stock of merchandise, groceries, furniture, etc., located in the Town of Leesville, Vernon Parish. They sold this stock of goods, out of the usual course of business, and in bulk, to the defendants, Wise and McCalpin.

During their ownership of the store in Leesville, Powell Brothers, -in October and November, 1920, executed two promissory notes in favor of plaintiff, Armour and Company. One for $750.00 and the other for $444.27, aggregating the sum of $1194.27.

Plaintiff alleges that the sale by Power Brothers to defendants was made in violation of the requirements of the provisions of Section 4 of Act 114 of 1912 and prays for judgment to have defendants account for the goods or merchandise transferred to them under the sale; and in default of a surrender thereof, they ask for a judgment against defendants in the amount of the promissory notes for which they asked for a decree against Power Brothers.

Plaintiff recovered judgment against defendants as prayed for.

The record shows that defendant acquired the goods, in bulk, without complying with the requirements of Section 4 of said Act.

In the lower court defendants filed a plea of prescription of one year as a bar to plaintiff’s action; and, in this court they file the additional plea of forty-five days’ prescription under the provisions of Section 4 of the Act.

Section 6 of the Act provides that upon the application of any of the creditors of the vendor, the purchaser becomes a receiver, and is to be held accountable to the creditors for all the goods and merchandise which come into his possession by virtue of the sale. These provisions of the statute authorize the conclusion, that unless the formalities required by Section 4 of the Act are complied with by the purchaser, that only the possession of the goods is transferred to him, and not the ownership. In such a case-, he holds the property as receiver and becomes accountable therefor to the creditors of the vendor.

It is clear in the instant case, that the defendants were not by special obligation, contract or quasi-contract, bound to the plaintiff for the payment of the notes sued upon. Power Brothers, the vendors, were the parties bound on these notes, and certainly not defendants who were free from any obligation towards the plaintiff prior to the sale to them. The proof shows they paid full value for the goods, and if they had observed the requirements of See. 4, in effecting the purchase, it would have been legal, and they would have acquired a valid title. The statute in question, however, in Sec. 4, imposes a general duty on all persons to observe the formalities therein pointed out, and for failure to comply therewith, strikes with nullity, all purchases of goods or wares, in bulk. In drawing the distinction between quasi-contracts, offences and quasi-offences, the Court in City of New Orleans vs. The Southern Bank, 31 La. Ann. 560, said: “The act which gives rise to a quasi-contract is a lawful act and therefore is permitted; while the act which gives rise to an offense or quasi-offense is unlawful, and therefore is forbidden.” The court said also, that a quasi-offense was the violation of a general duty, and not a special obligation. The act of purchase here was in violation of the provisions of the statute and of a general duty, was unlawful, and constituted a quasi-offense. The sale may not have been entered into wickedly and with intent to injure, in which case it would have been an offense,, but, it was, nevertheless, a quasi-offense, though it proceeded “only from error, neglect or imprudence”.

Albert Edwards vs. Turner, 6 R. 382. It is true section 6 of the Act. says, upon complaint of the creditors of the vendor, the purchaser becomes a receiver, but the words which immediately follow, say: that he shall be held accountable to the creditors. In such a case as this, it would be impossible to hold that the accountability of the purchaser could arise from' any contract, quasi-contract or special obligation towards the creditors. His “accountability” as receiver must therefore spring, not from his purchase though not made throiigh a fraudulent design, but from his failure to observe the requirements of section 4, as before stated. This “accountability” is therefore entitled upon the would-be purchaser as the result of an unlawful act, or quasi-offense. The Legislature in using the word “receiver” we do not think, intended to convey the idea that the purchaser would be considered a receiver for the benefit of the creditors of the vendor, with the rights and responsibilities flowing from a regular receivership, and involving the questions of prescription which would arise thereunder. Tn saying that the purchaser shall be held accountable to the creditors, obviously, this accountability means for the goods if in possession of the purchaser, or for their value in case of their destruction, loss or disappearance, up to the amount of the claim of the complaining creditor. This is what we understand to be the relief sought under the demand of the plaintiff. Such a demand is necessarily for the value of the things or for the loss the creditor has suffered or would suffer and is one in damages.

The proof shows that this suit was filed more than one year, in fact, about two years after the sale was passed, and plaintiff had been informed thereof. Suits in damages for offences and quasi-offences are prescribed in one year, C. C. 3536. This action is therefore prescribed under this article of the Code, which makes it unnecessary ■ for us to pass on the other plea of prescription filed in this court.

It is therefore ordered, adjudged and decreed that the judgment appealed from be reversed; that the plea of prescription of one year be and is hereby maintained; and that the demand of the plaintiff be rejected at its cost in both courts.

DISSENTING OPINION BY

ELLIOTT, J.

I dissent from the opinion and judgment of the majority of the court that the prescription of one year is applicable to. the action of a creditor against a purchaser of goods, wares and merchandise in bulk without compliance with the requirements of Section 4 of Act 114 of 1912.

I think the language contained in Section 6 of the Act — “became a receiver and be held accountable to such creditors for all the goods” — exclude that idea. A receiver accountable to such creditors cannot plead the prescription provided by the law C. C. Act 3536 against actions resulting from offenses and quasi-offenses against an accounting under the law as it now stands because his standing toward his creditors is that of a fiduciary and he should seek a release by an accounting to his creditors.


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    No. .....
    First Circuit Appeal.
    P. L. BURGESS v. T. SIMON.
    (December 30, 1924, Opinion and Decree.)
    (February 18, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Obligations — Par. 87.
    In a contract of employment for one year, where the employee starts work fifteen days late, does not receive pay for the time thus lost and works continuously under the contract without objection to the payments thereafter made. Held: the plaintiff, employee, gave his implied consent to shortening the term of the contract by fifteen days and is not entitled to pay for that period.
    Appeal from the Parish of Acadia, Hon. W. W. Bailey, Judge.
    This is a suit to recover money on a contract of employment. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Modisette & Adams, of Jennings, attorneys for plaintiff, appellant.
    Gremillion & Smith, of Crowley, attorneys for defendant, appellee.
   MOUTON, J.

April 6th, 1922, plaintiff was employed by defendant as a rice salesman from July 1st, 1922, to the 30th of June, 1923, at $3,600 for one year, the term of employment," making $300 per month, payable in equal installments semimonthly. In other words, plaintiff was entitled to the payment of $150.00 every 15 days, during the period of his employment. The agreement is in writing. At the time of the execution of the contract, plaintiff, it seems, was engaged in some profitable work, not yet finished and, at his request, defendant agreed to allow him to report for work fifteen days after July 1st, 1922, the day fixed under the agreement for the beginning of his employment. He, accordingly, began actual work at that time, and continued in the service of defendant until July 1st, 1923, when one Ryan was appointed in his place.

Plaintiff, alleging that he had faithfully discharged his obligations under the agreement for the period of his employment, that defendant had only paid him $3450.00 for his services, sues the latter for a balance of $150.00, together with five (5%) per cent per annum interest thereon from July 1st, 1923.

Plaintiff having claimed interest from July 1st, 1923, makes it clear that his demand for $150.00 is not for services rendered after June 30th, 1923, the date fixed for the expiration of the agreement.

The proof shows that plaintiff reported for work, not on the first of July, 1922, the date stipulated in the contract for the beginning of his employment, but on July 15th, 1922, fifteen days thereafter. As this delay had been granted, plaintiff at his request and unquestionably for his benefit, it is but fair to say that defendant did not expect it to be charged for services which plaintiff did not render during the period intervening between the date his employment was to commence, and the day he reported for work. The evidence shows, however, that at the end of July, 1922, a check was issued to plaintiff for fifteen days only. Evidently, lie was paid $150.00 at the end of that month for 15 days of services he had rendered from the 15th, when he began in the active service of defendant.

The proof is that when he received this check he made no demand for his wages which he now contends accrued to him during the delay he was granted by defendant before reporting for service. When plaintiff accepted these $150.00 at the end of July, 1922, he no doubt knew, it was for the services he had actually rendered. In making this payment defendant was placing a construction on the contract in which plaintiff acquiesced without urging any protest. It is also shown that plaintiff, from the date of the payment of this first installment, continued in the actual service of defendant until the 1st of July, 1923, when he was replaced by Ryan. It nowhere appears, from the record, that during this service by plaintiff to the time fixed for the termination of the contract, that he ever intimated that he was entitled to or made any claim whatsoever for his wages or salary during the period that elapsed from the time his employment was to begin, and the 15th of July, 1922. His failure to make any claim for his salary during the delay accorded him by defendant, as before stated, and his silence in reference thereto thereafter up to the time he was replaced, shows the construction put on the contract by the manner it was executed by both plaintiff and defendant, or with, at least, the implied assent of defendant, and furnishes a safe guide for its’ interpretation, as usually applied in cases of this character.

The testimony in the record taken in connection with the construction so placed on the contract by the parties, makes it quite clear that plaintiff is not entitled to a recovery of the $150.00 claimed by him for the delay intervening between July 1st and 15th, 1922, nor for any salary subsequent to July 1st, 1923, the date stipulated for the expiration of the agreement, as there is no evidence whatever to show that the term of the contract was ever extended, or that plaintiff performed any service after its termination, at which time plaintiff’s position was filled by Ryan, his substitute.

The proof does not sustain plaintiff’s demand, which was correctly rejected by the court.

Judgment affirmed.


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    No. .......
    First Circuit Appeal.
    PETER TIBBS ET AL. v. FELIX SCHEXNAYDER ET AL.
    (December 30, 1924. Opinion and Decree.)
    (February 18, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Executors and Administrators — Par. 199,. 201, 202.
    A public sale made of succession property in order to satisfy a judgment of rec-cord is valid, there being no evidence to show fraud. This is especially so where the purchaser gives the heirs six months in which to redeem it.
    Appeal from the Parish of Iberia. Hon. James Simon, Judge.
    This is a suit to recover land and improvements, etc.
    There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Charles J. Mundy, of Thibodaux, attorney for plaintiff, appellant.
    E. Veulemot and Porteous .R. Burke, of New Iberia, attorneys for defendant, • appellee.
   MOUTON, J.

Pelagee Randolp, wife of Samuel Tibbs, died in Iberia Parish, leaving a small estate and three children, viz: Peter, Columbus and Mary Jane Tibbs, issue of her marriage with Samuel Tibbs.

Felix Schexnayder alleged that the estate was in debt, and that none of the heirs would open the succession or pay its debts, applied for the administration, tie was appointed administrator by the court, and the property- of the estate was ordered to be sold for cash to pay the debts. As it was shown by proper affidavit that the value of the property of the succession was much under $500.00,.the proceedings for the sale were conducted in compliance with the provisions of Act 153, 1900; and Act 70 of 1906.

The heirs bring this suit for the ownership of a two arpents lot of ground situated in Jenerette, which according to the sale of the estate, appears in the name of L. A Moresi, one of the defendants, against whom-also and the administrator, plaintiffs ask for judgment for the value of a house removed from the land, for rents and rev enues, and for some lumber alleged to have been illegally sold to Moresi by the administrator. Plaintiffs charge the administrator with having obtained the order of sale by false and fraudulent representations. The property was bought by Pelagee Tibbs in 1885, during the existence of her marriage with Samuel Tibbs, and was therefore a community asset. The record shows that at the time the sale was ordered that a judgment for the sum of $37.25 stood of record in Iberia parish, ágainst Pelagee Tibbs. At that time, and for many years before, Pelagee and Samuel Tibbs, her husband, were living apart. Tibbs in New Orleans, Pelagee in Jenerette. Such a judgment could well have been obtained against her for the necessaries of life, and nothing appears that could be suggestive of its in-, validity or nullity. As the value of the estate as appears from the preliminary proceedings, amounted to ninety dollars, the sale to pay the judgment, and necessarily also the cost of court that would accrue in the administration of the estate, was permissible. Únder this state of facts there is nothing which would justify the inference that the order for the-sale was obtained through improper, dishonest or illegal means. It is also charged by plaintiff that the sale was not held according to the advertisement, but that the property was acquired at private sale by L. A. Moresi. The proof shows that the heirs knew that the sale was to be made, and that, through Peter Tibbs, had employed Mr. Gordon Sandoz, an attorney, now dead, to represent them in the probate proceedings. Before the date fixed for the sale, Peter Tibbs says he had a talk with Attorney Porteus Burke in New Iberia. He says, Mr. Burke said, you are the man Mr. Sandoz rang me up about, this morning, telling me to buy the “property in for you.” This conversation, unquestionably, shows that Peter, who represented the other heirs, knew the sale would take place, and was himself a prospective purchaser. It may be proper to notice here that if this sale had been obtained by fraudulent representations, Peter, would not have given his approval to the proceedings which led up to the sale, by appearing himself as a prospective bidder. The property was advertised .to be sold on the 25th of September, 1915. On that date, as appears by a deed signed by Schexnayder, administrator, this land with some old buildings and fences was adjudicated to L. A. Moresi for $80.00. L. O. Hacker, an attorney, now deceased, was the attorney who conducted the mortuary proceedings for the administrator. In the record there is a letter from him addressed to Peter Tibbs, stating that his bid for the land of the estate for $80.00, had been accepted, and unless he came at once to pass the sale, the property would be re-advertised. This letter is dated Oct. 9th, 1915, and is therefore subsequent to the date the sale was to be held. The proof shows that Moresi was not at the sale Sept. 25th, 1915, the date it bears under the deed of the administrator. It is fully shown that Moresi consented to buy the property only after having been earnestly requested to do so by Peter Tibbs. He had no desire to acquire it, and took title thereto to help Tibbs out of an embarrassing situation. Prom the facts so disclosed in the record it is impossible to hold otherwise but that Peter Tibbs fell down on his bid and that L. A. Moresi was merely substituted in his place as a bidder. It is shown that Moresi paid $80.00 for the property to Mr. Hacker, the attorney of the estate. This payment, it is shown, was-made with the full consent, and in the presence of Peter Tibbs. The price so paid by Moresi was for the exact amount as shown by the administrator’s deed. _ That Moresi was substituted as a bidder for Tibbs there can be no question-under such Overwhelming evidence. The record shows that on the 11th of November, 1915, after purchasing the property that Moresi wrote out a promise to re-sell the property to Columbus Tibbs, in six months from that date upon being re-imbursed' for the price of sale and expenses he had incurred. He made the redemption in the name of Columbus, at the solicitation of Peter. In accepting this promise, granting this right of redemption, it is shown, that Peter was representing, and was fully authorized to represent his brother, Columbus, and his sister, Mary Jane. All three knew that this right of redemption existed in their favor, and had been accepted for their benefit. There can be no doubt from such facts as these, that these heirs acquiesced. In the acquisition by Moresi of the property. They made no effort, individually or otherwise, to effect the redemption within the time stipulated, and are effectually bound by the time lifnit fixed in this promise of Moresi to re-sell. Even, if there had been irregularities in the mortuary proceedings of the succession or in the manner the sale had been effected, the acceptance of this promise of sale by the heirs, and their inaction during the time therein stipulated for the redemption, present an effective bar to their recovery at this late date.

The proof shows that Moresi, after purchasing, removed the house and fences from the premises. This he had a right to do 'under his purchase as they were immovables, and formed part of the thing sold, and were so described in. the administrator’s deed. As to the rents and revenues, he was entitled thereto as fruits of the estate. The proof shows in reference to the lumber that some was hauled and dumped near the premises in question two or three years before Moresi acquired; there is no proof any lumber, outside of the house, was there when Moresi bought; and, no evidence, of any character to justify the conclusion that Moresi appropriated any lumber belonging to Peter Tibbs or any one else.

The demand of the plaintiffs was rejected below, and correctly.


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    No. 6793.
    First Circuit Appeal.
    LEO WITKOWSKI v. ALLEN CLOUD. GEORGE N. MAYO, Intervenor and 3rd Opponent.
    (December 30, 1924, Opinion and Decree)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Fraud — Par. 5; Fraudulent Conveyances — Par. 26, 27; Landlord and Tenant — Par. 99; Sales — Par. 185, 189.
    In this case the lessee clandestinely, and. without the knowledge or consent of the lessor, removed the barber chairs, etc., from the leased premises and sold them to a third person. The landlord procured a provisional seizure on the barber chairs, etc., and the pretended purchaser of them intervened, claiming the ownership. Held, that the pretended sale was fictitious, fraudulent, and simulated because the, intervenor had knowledge of the insolvent condition of the lessee, and it was made for the purpose of defeating the rights of the landlord. The intervenor was made to pay for the value of the property taken.
    (Civil Code, Art. 2705 and Code of Practice, Articles 285 and 288. Editor's note.)
    Appeal from the 18th Judicial District, Parish of Lafayette, Hon. W. W. Bailey, Judge.
    This is a suit coupled with a provisional seizure to recover payment for rent. The intervenor and third opponent claimed title to the property. There was judgment for the plaintiff and intervenor appealed.
    Judgment affirmed.
    Defendant did not appear.
    MOUTON, J., recused.
    Mouton & DeBaillon, of Lafayette, attorneys for plaintiff, appellee.
    Voorhies & Labbee, attorneys for defendant, appellant.
   ELLIOTT, J.

The record shows that plaintiff, Leo Witkowski, alleging that his lessee, Allen Cloud, had clandestinely, surreptiously, and without his knowledge or consent, removed from the leased premises barber chairs, mirrors, and other fixtures and furniture in the barber shop on which he had a right of pledge and privilege as lessor, for the purpose of defeating his privilege and pledge thereon, and abandoned the leased premises in violation of the contract of lease, which had not expired, and’ his obligations as lessee, brought suit against Cloud and sued out a provisional seizure, under which the sheriff seized certain property as belonging to Cloud.

The record shows that Cloud did not make any • defense, but George N. Mayo intervened, opposed the seizure and sought the release of the property on the ground that he had bought same from Cloud and was in possession of the same.

Plaintiff, in answer to Mayo’s intervention and opposition, denied that he was the owner of the property which had been removed from the barber shop, alleged that his title thereto was fictitious, fraudulent and simulated; that Cloud was insolvent at the time the property was removed, to the knowledge of Mayo, and that his pretended purchase of same from Cloud was the result of ' a fraudulent combination with Cloud to defeat plaintiff’s recourse on his property; and that the property was removed from the leased premises by Cloud and Mayo pursuant to and- as the result of a conspiracy between them, the object and purpose of which was to defeat plaintiff’s pledge and privilege, as lessor of Cloud, on the property removed.

That the sheriff had been able to seize only part of the property that had been removed from the barber shop, that the whereabouts of the property not seized was unknown to petitioner and he' prayed that intervenor and 3rd opponent be required to pay its value, alleged to be $350.00. He prayed for judgment against Mayo, intervenor and 3rd opponent, rejecting his demands as to the property seized and condemning him to pay the value of that which the sheriff had been unable to seize.

The district judge, after hearing the testimony, rendered judgment in favor of plaintiff, Leo Witkowski, as prayed for.

He' condemned Mayo to pay the value of the property which the sheriff did not seize, admitted to be worth $350.00.

George N. Mayo, intervenor and 3rd opponent, has appealed.

The district judge did not render written reasons for his judgment,tfbut he could not have decided as he did except that he regarded all" the plaintiff’s allegations against Cloud and Mayo as established by the evidence. Our examination of the record, pleadings, evidence, briefs lead us to the same conclusion on the facts of the casé.

We are satisfied from the evidence adduced on the trial that the pretended sale from Cloud to Mayo was a fraudulent simulation, that the property in Cloud’s barber shop was removed therefrom, as alleged by plaintiff, pursuant to and as the result of a conspiracy between Cloud and Mayo, the object and purpose of • which was to deprive plaintiff, Witkowski, who was Cloud’s lessor, of his recourse on said property.

Intervenor and 3rd opponent complains of the judgment which requires him to pay $350.00 for the property which the sheriff failed to seize, urging that it is in a back room of the place where the other property was found.

That may be true, but the evidence convinces us that Intervenor and 3rd opponent engaged in an illegal and wrongful enterprise when he removed the property from the leased premises to his own place, and we are not sure that the property is where he claims it is, and it is nothing but fair and right that he pay what he admits that it is worth $350.00, all as decided by the lower court.

' The judgment appealed from does justice and is, therefore, right, and must be affirmed.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be, and the same is hereby affirmed, that intervenor and 3rd opponent, appellant, pay the cost of the appeal herein.

Julian ■ Mouton, J., recused.


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    No. 2310.
    First Circuit Appeal.
    SUCCESSION OF MRS. LEUFROID J. TROSCLAIR. OPPOSITION OF MRS. CECILE KERNE AND PHILIP A. KERNE.
    (December 30, 1924, Opinion and Decree.)
    (February 18, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Courts — Par. 57.
    District judges are authorized by law (Code of Practice, Art. 145 and Revised Statutes, Section 1935, Act No. 163 of 1918) to suspend or set their rules aside, at their discretion. Therefore, the trial of a contested civil case during criminal term contrary to the rules of court is legal, it being within the discretion of the judge.
    Appeal from the 20th Judicial District, Parish of Lafourche, Hon. Robert B. Butler, Judge.
    There were oppositions to the account of the testamentary executor, which were tried in the district court over the objection of the executor. The opposition was sustained.
    The executor appealed solely on the legality of the trial, which was had over his objection.
    Judgment affirmed.
    C. R. & Taylor Beattie, of Thibodaux, attorneys for plaintiff, appellee.
    Chas. J. Mundy, of Thibodaux, attorney for defendant, appellant.
   ELLIOTT, J.

A rule of the District Court in the Parish of Lafourche reads as follows: “No contested civil cases will be tried during the criminal terms of this court, except in cases where a jury trial is prayed for and in cases where a summary trial is provided by law.”

The record shows that the district judge on motion of Mrs. Cecile Kerne, nee Bourgeois, and Philip A. Kerne, her husband, •who had each filed oppositions to the ae-' count of Pelix Lasseigne, testamentary executor of the succession of Mrs. Leufroid J. Trosclair, non jury matters, permitted the oppositions to be assigned for trial during a criminal term of the court. The executor had been duly notified of the assignment and was by his counsel present when the case was called, and objected to the trial on the ground that the oppositions were contested civil suits which, according to the rule above mentioned, ought not be tried at a criminal term of the court; the term in question being a criminal term.

The judge inquired of the executor, through his counsel, if he had any ground for delay — except the fact that it was a criminal term, he would entertain same— but if that was his ofily objection the trial might proceed. No other objection being urged, the oppositions were tried, the executor, by his counsel, declined to participate in the trials. The judge heard the evidence and sustained the oppositions.

The executor has appealed. He does not contend that the judgment appealed from is erroneous, that the executor or the estate of Mrs. L. J. Trosclair has been prejudiced by the trial and judgment, but urges that the oppositions should not have been tried at a criminal term of the court on account of the above rule.

The Constitution, Art. 7, Sec. 43, provides that district courts shall have continuous sessions during ten months in the year, alternating in districts composed of more than one parish.

District judges are authorized by the law, Code of Practice, Art. 145, R. S. Sec. 1935, Acts 1918, No. 163, to adopt rules for the discharge of business not contrary to the laws of the state and they are authorized by the law to amend, suspend, or set their rules aside at their discretion for. the better administration of justice or to meet properly the requirements of some unexpected situation.

This court has no authority over their action in such matters, unless done in a way to injure some litigant. The C. P., Arts. 754, 5 and 6, provides for the. summary trial of oppositions to accounts of executors, etc.

Appellees have answered the appeal and urge that the succession of Mrs. L. J. Trosclair is not sufficient to pay debts, that the estate should not, therefore, be required to pay the expense of this appeal, which they claim is frivolous, that the executor should be penalized for bringing before the court a frivolous appeal, etc.

The appeal is without merit and should not have been taken, the payment of the debts has been thereby delayed and some expense made.

As stated, the executor complains only that the case should not have been tried.

He urges no harm to the estate or to him, no error in the judgment.

The judgment appealed from is correct and affirmed and it is ordered tnat the estate of Mrs. L. J. Trosclair be not charged with any of the costs caused by this appeal, that it be borne by the executor, personally.


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    No. 5236.
    First Circuit Appeal.
    A. A. ADDISON v. POWELL LUMBER COMPANY.
    (December 30, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Master and Servant —Par. 160 (a).
    Where an employee is injured; under the Employers’ Liability Act No. 20 of .1914, the employee is entitled to compensation even though he refuses to únd'ergo an operation for hernia, .the evidence showing that it will likely cure him, but the success of the operation can not be guaranteed, a small per. cent being not benefited and % of one per cent being fatal.
    (Act No. 20 of 1914, Sections 1, 23, 26, and 36.)
    Appeal from the 12th Judicial District, Parish of Vernon, Hon. Hal A. Burgess, Judge.
    • This is an action for compensation under the Employers’ Liability Act. No. 20 of 1914.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Pern M. Wood, of Leesville, attorney for plaintiff, appellee.
    W. W. Thompson and Leslie P. Beard, of Leesville, attorneys for defendant, appellant.
   ELLIOTT, J.

The question presented by this appeal is whether A. A. Addison plaintiff 52 years of' age claiming compensation of Powell Lumber Company under Act 20 of 1914 pn account of a hernia sustained in his employment can be refused the amount due him under the Act, because he declines to undergo a surgical operation; the evidence showing that it will likely cure or benefit him, therby saving his employer in compensation and benefiting himself for service; but the success of the operation can not be guaranteed; a small per cent are not benefited and a still smaller per cent about % of one per cent proving fatal; the plaintiff prefering the compensation provided by the law to taking the risk necessarily attending the chance of being cured or benefited by an operation.

The lower court decided plaintiff was entitled under the law to the compensation provided by the Act and could not be required'to undergo an operation and gave judgment in his favor as prayed for.

Thq i defendant has appealed and prays that: plaintiff be held hot entitled to compensation: an operation having been tendered him and refused.

The Act 20 of 1914 Sec. 1 provides — “and for such employee and employer the payment of the compensation according to and under the terms, conditions and provisions hereinafter set out in this Act shall be exclusive compulsory and obligatory”.

Sec. 36 provides: “That no contract rule regulation or other device whatsoever shall operate to relieve the employer in whole or in part from any of the liability created by this Act as herein provided” and Sec’s 23 and 26 brings an insurer when insurance has been taken out by the employer within all the obligations and requirements of- the employer.

The employee can elect to come under the law; or decline to the compensation provided by the Act and the courts have no power nor authority to provide conditions to the contrary.

The case of Bronson vs. Harris Ice Cream Co., Inc., 150 La. 455, 90 South. 759, give the reasons of the law and they must prevail.

Tlie authorities cited in brief of defendant and appellant may be based on laws containing a provision requiring the injured employee to undergo an operation in certain class of injuries.

The illustrations cited in defendant’s brief considered but it occurs to us that the unimportant injuries or happenings of the kind mentioned would not be imputed to the employer’s fault as the proximate cause of the loss which the party brought about by his neglect of such a matter. Plaintiff’s injury is a present actual hurt and injury which the operation would very likely cure or benefit but an appreciable risk attends the operation and to hold that plaintiff must undergo an operation else the compensation so exclusively compulsory and obligatory provided for will be refused is to practically amend the law.

The judgment appealed from is in our opinion correct.

It is therefore ordered adjudged and decreed that the judgment appealed from be affirmed, the defendant and appellant to pay the cost in both courts.


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    No. 5395.
    First Circuit Appeal.
    LEUFROY SONNIER v. ALCEE SONNIER, ET AL.
    (December 30, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Surveyors and Surveys — Par. 2, 3, 4, 5.
    Where the evidence by the surveyors in a boundary suit shows that several surveys have been made, each one giving different results; that the lines which they ran failed to tie; that there is doubt as to whether their starting point is correct, etc., the judgment of the lower court rejecting the lines re-located by the surveyors is correct. '
    2. Louisiana Digest, Appeal. — Par. 625.
    Unless clearly erroneous, the judgment of the trial court on questions of fact, will not be disturbed. In this case, the result of a survey to determine a boundary was rejected.
    3. Louisiana Digest, Surveyors and Surveys — Par. 27.
    Where there is no proof of a demand on the one side, and a refusal to have the boundaries determined peacably on the other, the costs should be divided equally between the parties.
    Appeal from the 18th Judicial District, Parish of Acadia, Hon. W. W. Bailey, Judge.
    This is an action to have a boundary determined. The report of the surveyors was rejected by the court and the plaintiff has appealed.
    Judgment affirmed and- amended as to costs.
    P. S. Pugh, of Crowley, attorney for plaintiff, appellant.
    Gremillion & Smith, of Crowiey, attorneys for defendant, appellee.
   ELLIOTT, J.

The object of, this suit is to have a lost boundary line re-located and there is no question of title, other than that which is incident to the correct relocation of the line.

Merrill Bernard was ordered by the court to fix the boundary between the E. % of the S. E. % of Section 17 -Township 10 S. R. 1. W; Louisiana Meridian belonging to Leufroy Sonnier and the adjoining lands of Alcee Sonnier and of Numa Sonnier in Section 20 same township and range.

Numa Sonnier in his answer denies owning any adjoining lands so he will be eliminated from the controversy; but Alcee Sonnier in his answer admits that he does, that plaintiff has endeavored to obtain his consent, without avail to have the line fixed and his consent was not given because the land claimed by plaintiff to be on his side of the boundary is not in Section 17, but is in Section 20 and therefore belongs to defendant. He admits that several surveyors have established lines between sections 17 and 20; that their lines differ in many respects and urged that the line as re-located by Bernard ‘ was not correct, etc.

The trial court after hearing, rejected the line between the two sections as re-located by Bernard and P. J. Letts surveyors and the suit was dismissed and the cost -taxed against the plaintiff.

The plaintiff has appealed.

The record, map, plan return and testimony of Merrill Bernard and of P; J. Letts surveyors shows that Mr. Bernard in his effort to re-locate the line in question, commenced as he supposes at the north west corner of Township 10 S. R. 1. W. and ran south until he reached a point which he concluded was opposite the south west corner of section 17 and the north west corner of section 20. We have examined his testimony and return and the only question that we can see that is not definite and certain is whether he started from the true north west corner of the township; which is not definite nor certain because of the failure of this line to tie and connect with the southern line which we will hereafter consider by several hundred feet. It may be that the northern starting point was correct and the fault is with the one from which a southern start was made; all we can say at present is that we don’t know whether either or both are right or wrong; the evidence does not enable tis to determine the matter.

After running the above line; Bernard with P. J. Letts surveyors repaired to what they believed to be the south west corner of section 33 T. 10 S. R. 1. W., marked by a plowbeam. Starting from thence with Mr. Letts surveying they ran north of the place where the north east corner of section 20 terminates on the south east corner of section 17 and thence ran west for the boundary between the two sections, the boundary in question, trusting to tie with the southern -end of the line first run as above stated but failed to do so by several hundred feet. They give several reasons why the discrepancy mentioned exists among others they believe that an excess of land exists in the township. They did not take this supposed excess into account in relocating the boundary in question; but pro-ceded to the location without reference to excess area in the township, if there be any, although they admit that such an important excess, distributed among the sections in the township, would affect the line between sections 17 and 20 as relocated by them. They knew that their line was in conflict with older lines; therefore it was error on their part to take anything for granted that could be proved; to leave one proved point of departure. The “plowbeam” above mentioned was not a proved point of departure. It may be a true point, but if it is, they did not prove it and in there testimony express doubts as to whether the line ran by them between sections 17 and 20 can stand the test of the future.

The 66th mile post is a proved point of departure for surveys in T-10 S. R. 1. W. It was so decreed by the Supreme Court in Elms vs. Foote, 129 La. 975, 57 South. 306, and they were aware of that fact and could have measured from thence the place where is was pointed out to be; but they - did not do that and by failing to do so they have not made sure of their work

The thing to do is to find and re-locate of course, if it can be found, the old government line between sections 17 and 20; 16 and 21; 15 and 22, etc., and to that end, all old government marks, corners, proved points for departure in the township, should have been searched for and measured from, to the line mentioned as helps and supports and proof of the proper re-location of the same.

If there is excess area in the township; it should be ascertained and distributed pro rata among the sections in the township where it belongs; because if excess exists a definite and proper re-location of the boundary between the two sections mentioned is impossible until it is done. The re-location of same before us on this appeal, not having for its support, any proved point for departure in the township; it can not be accepted until' it is properly supported.

Its establishment involves no question of title or possession; except that incident to the boundary; and is a continuing necessity, the accomplishment of which is for the public good. Because the officer appointed by the court to re-locate the boundary, attempted. to do it without measurement from a proved point of departure is no reason for the dismissal of plaintiff’s suit as it is not plaintiff’s fault. The court should have ordered the work done over and to the end that the surveyors might make no more mistakes of the same kind, should have given him explicit instructions in writing as to his duties under the law applicable to the demands of the occasion. Unleps that be done the boundary could never be re-established except by consent. As for the cost in such a case, where the necessity for the judicial fixing is apparent and the defendant has refused to join in the suit; the cost must be paid one-half by the plaintiff and the-other half by the defendant; such is the intent of the law.

It is therefore ordered adjudged and decreed that the judgment appealed from, declining to accept the line between sections 17 and 20, T. 10 S., R. 1 W., as relocated by Messrs. Bernard and Letts, surveyors, for the reasons above stated is approved and affirmed; but that part of the judgment appealed from which dismisses plaintiff’s suit and taxes the cost against him is erroneous and contrary to the law and the evidence and the same is therefore annulled, avoided and set aside to that extent. It is further ordered that this case be and it is hereby remanded to the lower court for the purpose and to the end that the order for the re-establishment of the dividing line between sections 17 and 20, T. 10 S., R. 1 W., may be carried out and complied with as the law provides: That explicit written instructions be given by the lower court to the surveyors appointed to execute the order, as to their duties in the performance of the work, in the presence of the parties to the survey, before the commencement of the same that a time be fixed by the court for their return in the matter. It is further ordered that half of the cost of the lower court be paid by plaintiff, Leufroy Sonnier and the other half by defendant, Alcee Sonnier, that the cost of this appeal be paid by Alcee Sonnier.


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    No. 6243.
    First Circuit Appeal.
    L. J. JONES v. ARMAND RICHARD.
    (December 30, 1924. Opinion and Decree.)
    (February 18, 1925, Rehearing Refused)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Appeal. — Par. 320.
    Under Act 112 of 1916, the appellate court cannot dismiss, the appeal for insufficiency of the appeal bond unless this matter was previously brought up before the lower court.
    2. Louisiana Digest, Bills and Notes. — Par. 199.
    Where plaintiff, suing on a promissory note, was a party to or had knowledge of the fraudulent operations by which the signature to the note was secured, recovery on the note is barred for lack of consideration.
    Appeal from the 18th Judicial District, Parish of Lafayette, Hon. W. W. Bailey. Judge.
    This is a suit on a promissory note. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed.
    Smith & Carmouche, of Crowley, attorneys for plaintiff, appellant.
    John L. Kennedy, of Lafayette, attorney for defendant, appellee.
   ELLIOTT, J.

This is a suit on a promissory note, which the maker signed by making his mark, payable to the order of himself and by himself, endorsed by a holder of the same. The petition does not allege that the holder acquired the note in good faith and in the usual course of trade; a matter which we would not mention as we do; were it not for the averments in the answer of the defendant and to which the maker has attached his oath as the law requires; setting out in detail how the note was obtained from him by misrepresentation and fraud and concluding with the statement that the “plaintiff herein was a party and either participated in the working of the game or had knowledge of the fraudulent operations”, that no consideration exists for the note, etc.

The district judge rejected plaintiff’s demand and he has appealed.

There is a motion to dismiss because the appeal bond given for $150.00 when the order granting the appeal requires a bond for $250.00 for either suspensive or devolutive appeal. According to Act 112 of 1916 as it reads, we cannot dismiss the appeal unless the matter was brought before the lower court and that does not appear to have been done in this case. It appears that something more might be said as to such an application of the Act in question; but we will not go further with the matter and will overrule the motion as concerns the present appeal.

We have examined the evidence; the briefs of the parties, and will say that no useful purpose can be served by quoting or commenting on the evidence that the record contains and brings up, except that plaintiff prepared the note sued on and delivered it to another party to be presented to defendant for signature and the record justifies the conclusion that plaintiff knew all about the stock proposition that was put up to defendant, that no consideration existed for the note as far as defendant was concerned.

The judgment rejecting plaintiff’s demand appears to us to have been a most righteous one and the proper one that should have been rendered and must be affirmed..

It is therefore ordered, adjudged and decreed that the judgment appealed from be affirmed; the plaintiff and appellant to pay the cost in both courts.


text:
    No. 8066.
    First Circuit Appeal.
    EMILE VUILLEMONT AND PORTEUS R. BURKE v. SETH C. SUMRALL.
    (December 30, 1924. Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest — Appeal—Par. 625, 630.
    Where the amount allowed plaintiff clearly does not conform to the evidence, the judgment will be amended accordingly.
    Appeal from the 19th Judicial District, Parish of Iberia, Hon. James Simon, Judge.
    Judgment amended and affirmed.
    C. Arthur Provosty, of New Iberia, attorney for plaintiff, appellant.
    John L. Kennedy, of Lafayette, attorney for defendant, appellee.
   ELLIOTT, J.

The record shows that plaintiffs, Emile Vuillemont and Porteus R. Burke, acquired certain property used in drilling for oil at sheriff’s sale in the matter of Gonsoulin, et al., vs. Louisiana Oil Drilling Co. which property they sold to the Bowie Oil & Gas Co. and attempted to deliver to the Bowie Company about 300 ft. of 6-inch casing and 680 ft. of 8-inch casing which was in the possession of the defendant Seth C. Sumrall and on being prevented from so doing by Sumrall they injoined Sumrall from interfering and under cover- of the injunction did deliver the 6 find 8-inch casing to the Bowie Oil & Gas Co. The evidence shows that this casing did not belong to the plaintiffs; it had not been acquired by them at the sheriff’s sale mentioned and the evidence shows that the casing did belong to Sumrall and others and that it was in the possession of Sumrall and cost $1000.00.

It therefore follows that plaintiffs, Vuillemont and Burke, had no right under the color of the injunction to take this casing from defendant Sumrall and deliver it to Bowie Oil & Gas Company.

The opinion of the district judge shows that facts, 'we agree with him in every particular except that we take it he overlooked the value placed by Sumrall on the 8-inch casing,. note testy, 22, transcrip, 64, and that placed by the witness O. D. Romero on the 6-inch casing note testy 26, transcript 68. According to Mr. Sumrall, the 8-inch casing was worth $680.00 and according to Mr. Romero the 6-inch casing was worth $225.00, total $905.00.

Considering that Sumrall only paid $1000.00 for this casing and other property not involved in the suit we think he should recover but $905.00 and in addition $100.00; these amounts to bear legal interest from May 23rd, 1924, as provided in the judgment appealed from.

We will amend the judgment appealed and decree that the defendant Seth C. Sumrall do have and recover judgment against 'the plaintiffs, Emil Vuillemont and Porteüs R.' Burke, in the sum of nine hundred' ánd five dollars and in the further sum of one hundred dollars, both sums to draw leg’al interest from May 23rd, 1924, until paid, that in all other respects the judgment appealed from is affirmed; the plaintiffs and appellants to pay the cost of b'óth courts.


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    No. 8182.
    First Circuit Appeal.
    ALFRED HARRIS v. A. CRECO ET AL.
    (December 30, 1924, Opinion and Decree).

      (Syllabus by the Editor.)

    1. Louisiana Digest, Appeal. — Par. 749.
    Where a case is dismissed on an exception no cause of action and plaintiff clearly • had an action under Civil Code, Art. 2315, the case will be reversed and remanded for trial on the merits.
    Appeal from the 20th Judicial District Court, Parish of Terrebonne, Hon. Robert B. Butler, Judge.
    This is a suit to recover the value of a horse illegally sold by a constable.
    There was judgment for defendant and plaintiff appealed.
    Judgment reversed and remanded.
    Charles J. Mundy, of Thibodaux, attorney for plaintiff, appellant.
    Harris Gagne, of Thibodaux, attorney for defendant, appellee.
   ELLIOTT, J.

Alfred Harris alleges in a petition signed “Charles Mundy, Attorney in Fact,” that A. Creco and F. W. Ross, Constable of the 8th Ward, Parish of Terrebonne, are endebted unto him in the sum of $150.00 as the value of a horse and in the further sum of $150.00 as damages for the loss of the use and service of the horse. That defendant A. Creco caused the other defendant, W. F. Ross, in his capacity of Constable, to seize and sell the horse, well knowing at the time that it belonged to plaintiff; that the sale was illegal and without excuse, etc.

The plaintiff cannot be required as a matter of law to undertake the x’ecovery of the horse; he has the right to let the sale stand and bring an action against those who illegally took it away from him for the value of the same and for the use and service of which he has been deprived. “Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it,” C. C., Art. 2315.

Defendants Creco and Ross filed exceptions to plaintiff’s petition in the lower court and the record shows that they were sustained and th'e suit dismissed; that is, one or more of them were sustained; the record does not show whether it was one or more; but the suit was dismissed as a result of the exceptions, and the plaintiff has appealed.

T'he Exceptors have not filed a brief nor otherwise appeared to explain the ruling which dismissed the suit; the plaintiff has filed a brief.

There is a purported power of attorney from Alfred Harris in favor of Charles Mundy in which he is said to authorize him to appear and plead for him, etc., in the above cause and with full power to do all things, etc.

The judgment of dismissal must be reviewed from the face of the petition and the document annexed to it and the exceptions filed thereto.

Looking at the face of the petition and the document annexed to it, we do not think the 1st exception is good for the reason that plaintiff could empower Charles Mundy as he purports to do: The document' bears the name of Harris in the place whére witnesses sign; but if he signed it there, he consented to it and it is not claimed that .Harris did not sign it.

As'for the 2nd exception, the verification is sufficient to sustain the suit under the pleading act.

As for the 3rd exception, the need of other defendants does not appear on the face of the petition.

As for the 4th exception, taking the allegations of the petition to be true, the joinder is justified.

The 5th exception is serious for several reasons. It is likely the one that the lower court sustained and dismissed the suit. Taking all that the petition says to be true, we conclude that it sets forth a cause of action under the law C. C., Art. 2315 and 2324.

The 6th does not justify the dismissal without opportunity to amend. We find in conclusion that on the face of the papers the judgment dismissing the suit was erroneous.

It is, therefore, ordered adjudged and decreed that the judgment appealed from be annulled, avoided and set aside and it is now ordered that the suit be returned to the lower court; and to the docket thereof for further proceedings as the law provides. That the cost of the appeal be paid by defendants and appellees; that of the lower court to abide the final result of the case.


text:
    No. 8621.
    First Circuit Appeal.
    THE BRUNSWICK-BALKE-COLLENDER COMPANY v. R. L. AITKENS.
    (December 30, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Pleading — Par. 23.
    Where in a suit to collect notes made for rent of billard tables etc., there is no allegation in plaintiff’s petition that the tables etc., wer.e delivered to defendant, that defendant has them in his possession or that plaintiff has fulfilled his contract, there will be judgment for defendant as non-suit.
    Appeal from the 20th Judical District, Parish of Terrebonne, Hon. Robert B. Butler, Judge.
    This is a suit on promissory notes supposed to have been given for the payment of rent. There was judgment for defendant and plaintiff appealed.
    Judgment affirmed and made one of non-suit.
    Charles J. Mundy, of Thibodaux, attorney for plaintiff, appellant.
    Harris Gagne, of Thibodaux, attorney for defendant, appellee.
   ELLIOTT, J.

The plaintiff The Brunswicke-Balke-Collender Company, alleging in substance and effect that R. L. Aitkens defendant was indebted unto plaintiff in the sum pf- $600.00 with interest and attorney’s fees, subject to credits in amount about $156.50 for this to-wit: That defendant had entered into a contract of lease with plaintiff for certain movable property-described, in the lease, giving notes to secure the indebtedness which represented the rental value of the property specified in the lease. That some of" the notes given pursuant to the lease had not been paid, etc. The notes and the act called a lease are annexed to and made part of the petition and filed in the record.

The form of the notes is copied into the petition. The notes state on their face that each is given to plaintiff for one month’s rent of “Billard Tables and equipment.” Bach of the notes purports to be due on its face. The act said to be a lease is on a sheet of paper underneath a list of articles etc., and as filled out it is hard to say whether it sufficiently identifies the list of articles above it and the notes sued on as given pursuant thereto or not.

The answer of defendant admits his signature to the notes sued on but denied the indebtedness alleged; there is nothing else alleged for defense. The district judge rendered judgment rejecting plaintiff’s demand and the plaintiff has appealed. The plaintiff has filed a brief; we have nothing from defendant; evidently because he knows that very little can be expected as. a result of the appeal.

The record contains no bill of exceptions; no note of evidence, all we have before us is plaintiff’s petition and documents an- ' nexed; the' answer judgment order of appeal; appeal bond and minutes of the court.

The judgment recites that the law and the evidence is in favor of the defendant and against the plaintiff and rejects plaintiff’s demand; finally under the established jurisprudence of this state we can not review the judgment appealed from in such a case; save as' to matters and grounds apparent on the face of the petition and the docu.ments annexed and other pleadings in the case, etc.

It is apparent to us that the district judge concluded that plaintiff on the face of his petition, notwithstanding the notes and the document thereto annexed and made part thereof, did not allege anything that entitled the plaintiff to recover on the notes sued on as rent notes. The petition could have been amended at the right time, but nothing was sought in that respect; yet the notes may be justly due and owing and we have considered, that matter. .

The law C. C. Art 2669, says that .a lease is a contract by which one party gives to another the enjoyment of a thing at a fixed price, Art 2674. “To let out a thing is a contract by which one party binds himself to grant to the other the enjoyment of a thing during'a certain time for a certain'stipulated price which the other binds himself to pay him, Art 2692. The lessor is bound to deliver the thing leased, to the lessee, etc.

Plaintiff sues on notes which -say on their face that they were given as rent for Billard Tables and Equipment, etc., but there is no allegation that the Billard Tables and Equipment for the rent of .which they were executed and signed were delivered to Aitkens; or that Aitkens has received them from the plaintiff, has them .in his possession, etc., that 'plaintiff fulfilled the contract of lease, • etc., on its part.

We have noticed that plaintiff assigns in his brief as the reason why judgment was rendered against him. We take it that he misunderstood the court. Acts under private signature, such as are annexed to plaintiff’s petition do not have to be signed by the Obligee or Creditor, his consent is generally implied.

The judgment appealed from is correct and is hereby affirmed save that plaintiff’s demand should have been rejected as in case of non-suit.

It is therefore ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed to the, extent that plaintiff’s demand is rejected but only as in case of non-suit.

That plaintiff and appellant pay the costs of both courts.


text:
    No. _____
    First Circuit Appeal.
    O. S. BEASLEY v. LEESVILLE MOTOR CO., INC. McCLAREN RUBBER CO., Third Opponent.
    (December 30, 1924, Opinion and Decree.)

      (Syllabus by the Editor.)

    1. Louisiana Digest, Appeal — Par. 625.
    Finding no error, the judgment of the trial court on the law and facts is affirmed.
    Appeal from the Parish of Vernon, Hon. Hal A. Burgess; Judge.
    . There was judgment for third opponent. Plaintiff and defendant appealed.
    Judgment affirmed.
    C. E. Hardin, of Leesville, attorney for plaintiff, appellee.
    S. I. Foster, of Leesville, attorney for defendant, appellant.
   MOUTON, J.

The McClaren Rubber Company filed a third opposition herein asking judgment for $1561.91, with recognition of a privilege on automobile equipments described in its petition. The district judge rendered judgment in favor, of third opponent for $1183.78, and recognized the privilege claimed. Appellant has made no appeárance in this court, and has filed no brief or complaint suggesting any errors in the judgment. Finding no error after examining the record, the judgment is affirmed, with cost.