text:
    No. 12,646.
    Succession of R. J. Francez.
    The fact that pending administration of a succession the widow in community and heirs have made' extra-judicially, without objection on the part of the administrator or creditors, either a partial or complete partition does not dispense the administrator from the obligations of filing a final account, making the widow in community and heirs parties, and accounting for everything which came under his administration, or for which he might have been responsible.
    If any portion of the property has by such consent been withdrawn from his control and possession, he should introduce the acts which evidence such fact, and leave the effect of the same to be determined on trial of his application for homologation and discharge between all parties in interest. The administrator can not plead by way of estoppel, as against a demand made upon him by the heirs for a final account, the fact of an alleged complete extra-judicia. settlement between the heirs and the widow in community and the heirs inter se.

    When such an act has been produced, and shows on its face that it is not a final petition as to one of the heirs, the heir has the right to question its scope, and the opening of the settlement opens it for discussion as to all. O. 0. 1412; Gay vs. Marionneaux, 20 An. 358.

      A PPBAL from the Seventeenth Judicial District Court for the Par--L* ish of Lafayette. Ii. W. Elliott, J. ad hoc.

      Wm. Campbell and Crow Girard for Administrator, Appellee.

      Orther C. Mouton for Opponents, Appellants.
    Submitted on briefs December 15, 1897.
    Opinion handed down December 29, 1897.
    Dr. Romain J. Francez, a resident of the parish of Lafayette, died in said parish on the 28th of October, 1892, leaving a widow, Athenais Bernard, and nine heirs:
    1. J. P. Francez (a son by a first marriage).
    2. Romain Francez.
    3. ■ Aloysia Francez, wife of Lucien Cayret.
    4. Maurice Francez.
    5. Cecile Francez, wife of Galbert H. Guilbeau.
    6. Agnes Francez, wife of M. Lazaro.
    7. Ernest Francez.
    8. Gaston Francez, and
    9. Aristide Francez.
    In December, 1892, an inventory was made in the matter of the succession, and J. P. Francez was appointed and qualified as administrator.
    The inventory showed, under numbers from one to eight therein (both inclusive), different tracts of land, amounting in value, in the aggregate, to the sum of fourteen thousand two hundred and seventy-four dollars; corporeal movables to the value of five thousand four hundred and sixtyefive dollars; notes and accounts to the value of one thousand and ninety-five dollars and seventeen cents, or a total active mass of twenty thousand eight hundred and thirty-four" dollars and seventeen cents, and a passive mass or debts due by the succession to the amount of seven hundred and forty-four dollars.
    On October 6, 1893, the administrator filed what he termed a final account.

      In this account he describes the entire mass of the succession as being:
    1. The property described in the inventory.
    2. Two thousand one hundred and seventyreight dollars and forty ■cents, proceeds of the crop of 1892; and
    3. Seven hundred and seventy-two 'dollars and fifty-six cents, an •amount of separate funds of the deceased received from Prance.
    The date of his death is taken from the brief of appellant’s counsel. The debts of the estate are declared by him to amount to sixteen hundred and eighty-seven dollars. He states that the seven hundred .and seventy-two dollars and fifty-six cents received from Prance had been distributed between the nine heirs each receiving eighty - ■five dollars and eighty-four cents, and that the residue of the community property, consisting of the property as inventoried and the balance of cash, had been placed in the possession of the widow as usufructuary.
    Accompanying this account was a petition in which the administrator prayed that due notice be given by publication of the filing of the •same; that the heirs be cited, and that after due proceedings the account be homologated and the administrator discharged. No prayer was made for the citation of the widow in community, and neither she nor the heirs were in point of fact cited.
    On the 29th of December, 1893, the heirs of the deceased transferred and delivered to his widow, Athenais Bernard, property described as a tract of land, situated in Lafayette parish, containing two hundred and fifty superficial arpents, bounded north by public road, leading to Arneauville from Carenero; south by Ro Simon Mouton and Romain Prancez; east by land of estate of R. J. Prancez, and west by public road and land of Romain Francez, together with all the buildings and improvements thereon and all the movables as ■ shown by inventory of succession of R. J. Prancez.”
    The sale and transfer is declared to have been made “ for and in consideration of the price and sum of six thousand one hundred and seven dollars, being her full share as coming to her from the community rights between her and her deceased husband, Dr. R. J. Prancez,” and it being further declared “ that in consequence of having received said amount in property she did then and there renounce and relinquish all her rights that she had or might have ■against the sucession of her late husband in favor of the heirs; this 'being a full settlement on the one band and a quit-claim on the •other.”
    On the same day J. P. Francez, for himself and as agent of the other heirs of Dr. R. J. Francez, sold and transferred to Maurice Francez (one of the heirs) property which in the act of sale was described as “ ñve hundred and thirty arpents of prairie land situated in Lafayette parish, being lots Nos. 2 and 3 and part of No. 1 of the i iventory of said succession of their deceased father; also two hundred and seventy arpents of wood land situated in Lafayette parish, and being parts of lots Nos. 4, 5, 6 and 7, of the said inventory; also seventy-two acres of wood land situated in St. Martin parish, being all their interest in said succession.”
    The consideration was declared to be “thirteen thousand dollars ■cash in hand paid, for which due acquittance was granted.” Maurice Francez, holding the legal title of all the property so transferred to him, proceeded at once to sell and transfer different portions of the same to each of the different Jieirs, retaining a portion himself; the portion so retained by himself, when added to that sold by him to his co-heirs, making up the whole of the real estate inventoried other than that conveyed to the widow. These transfers were evidently based on the interest or proportion which each of the ven-dees held at the time in the suceession'.of Dr. Francez, as the price mentioned and declared to have been received by the vendor in each act was fifteen hundred and fourteen dollars, except in that to J. P. Francez, where'it was declared to be three thousand and twenty-eight dollars. This difference in price is accounted for by the fact that J. P. Francez had in th.e meantime acquired, in addition to his own interest, that of Romain Francez, in his father’s succession. In each of these acts of transfer the vendee accepted the property as “being his full share in succession of R. J. Francez,” with the exception of the acts to J. P. Francez and to Agnes Francez, wife of Mark Lazaro.
    In the former of these the property was declared to be accepted as the share of the purchaser and Romain Francez in the succession, and in the latter as “ the share of Agnes, wife of Lazaro, in the lands partitioned between the heirs of Dr. R. J. Francez on the 29th December, 1893, it being understood and agreed that this sale was to be construed simply as so much received by the purchaser on account of her share as an heir of her father.”

      On April 11, 1894, Agnes Praneez, wife of Mark Lazaro; Ceeile, wife of Galbert H. Gilbean, and Aloysia, wife of Luden Cayret, filed an opposition to the administrator’s account, but subsequently Oecile Francez and her husband withdrew their opposition.
    In this opposition it was charged that the account was incorrect in many particulars; that the administrator had failed'to account for the crops of the years 1892 and 1893 received by him. That in the year 1892 the cotton crop amounted to sixty-eight bales of cotton, five hundred barrels of corn net, one hundred barrels of potatoes, thirty loads of pea vine hay and nine barrels of peas.
    That in the year 1893 one hundred and three bales of cotton were made; five hundred barrels of corn, besides potatoes, peas and hay, and a large quantity of hay was sold. That the administrator failed to account for the ginning fees for the years 1892 and 1893; that he failed to account for the claims due by the laborers on the plantation of deceased due for the years 1892 and 1893, and he failed to account for claims, accounts and notes due the deceased and carried on the inventory, and the administrator should be charged with the value of property sold by him, to-wit: one old saw-mill rigging, one circular saw and one double barrel shotgun. They especially opposed the claims of L.' Querouze for $474.97 as not being due by the estate and they reserved all their rights to the property in Prance.
    To this the administrator filed an exception that opponents had no standing in court nor any right of action by reason of having executed and signed in notarial form a full and final partition of the property of the succession situated in the parish of Lafayette as inventoried, and in the same act accorded and gave to the administrator a full and final discharge of all responsibility for all matters conceiving the said succession and prayed for a dismissal of the opposition.
    The administrator filed another exception by way of estoppel, alleging:
    1. That said succession had been finally settled by an understanding and agreement by all the heirs in this, that all the property and effects were partitioned among said heirs by notarial act passed before Cochrane, notary.
    2. That said heirs signed an acquittance to all and any amounts coming to them from said succession, as would appear by reference to the acts passed and signed by each and all of them before the said Cochrane, notary.

      On the day the last exception was filed the opponents filed a plea to the effect that the acts referred to by the administrator as an estoppel and settlement of their rights in said estate were only intended to effect a partition of the property included therein for the purpose of effecting a partition thereof. That if considered as proof of a settlement same was signed by Aloysia Francez (wife of Lucien Cayret) and by Agnes Francez (wife of Mark Lazaro) in error, and they pleaded error. They prayed that said acts, in so far as they showed a settlement, be declared null and void and having been signed by error — that the plea of estoppel be overruled and set aside and the cause be tried on its merits.
    The administrator objected to the filing of this plea on the ground that it was in the nature of a replication, or an answer to an answer, and that it came too late. The objection was overruled, the court assigning as the reason for its ruling “ that it was a rule of law that all agreements and obligations could be attacked for fraud or error.”
    A bill of exceptions was reserved to this ruling.
    On the trial of the exception or plea of estoppel the administrator, over the objection of the opponents, was permitted to have the testimony of a number of witnesses taken as to the conversations between the parties to the acts passed between the widow and heirs of the deceased, on which the administrator based his claim of estoppel, before and at the time those acts were passed, in order to show the conclusion reached between the parties, and whether those acts were or were not intended as a final settlement of the succession and a compromise of all the differences of the parties in the settlement of the succession, and whether same did not include also an abandonment in favor of the widow of all notes, accounts and crops on the plantation up to that time, in consideration of her assuming the payment of the debts.
    The introduction of this testimony was resisted on the ground that no parol evidence was admissible against or beyond what was contained in the acts pleaded as an estoppel, nor as to what may have been said before or at the time of making them or since. The reason assigned for overruling the objection was that under the allegations of error parol evidence was admissible to show the true nature of the transaction. Bills of exception were reserved by opponents to this ruling.
    On the trial opponents themselves asked to have G. H. Gilbeau and Lucien Cayret, two witnesses sworn on their behalf, and answer the following questions:
    “Was there any understanding or agreement between the heirs, during their discussion and conversation preceding or at the time the acts of the 29th of December were being signed, that what was being done that day was to be a final and complete settlement of the rights of the heirs in said estate?
    State if G. H. Gilbeau, one of the parties to those acts, did not categorically refuse to Mr. Campbell the request to sign a discharge in favor of the administrator on that day?”
    Opponents in propounding said questions stated that their object was through the answers thereto to contradict the parol evidence offered by the administrator in his evidence in chief.
    The administrator objected to the questions on the ground that no parol evidence was admissible against or beyond what was con-, tained in the acts pleaded to alter, vary or contradict the statements contained in said acts.
    The objections- were sustained by the court on the ground that parol evidence was not admissible to contradict one’s own statements contained in a notarial act.
    Opponents reserved a bill of exceptions to this ruling.
    Opponents offered in evidence a certified copy of a notarial act signed by Maurice Francez, on the 13th February, 1894, in which he declared that on December 29, 1893, by act before D. A. Oochrane, notary public, the heirs of Dr. R. J. Francez sold to him (the said Maurice Francez) certain tracts of land fully described in said act; that said sale was made to him in order to effect a partition of said lands, and was not intended to convey and sell to him anything more than the lands therein described, and that said sale did not include any other rights his co-heirs might have in the succession of Dr. R. J. Francez, and that thereafter he sold to each of his coheirs his proportion of said lands which was not in full of each of said co-heirs in said succession of Dr. R. J. Francez.
    The administrator objected to the introduction in evidence of said act, on the ground that a voluntary party to an executed contract, who has reaped and retained the benefit of it, is estopped from assailing said contract. That a party would not be permitted to deny in his own interest a state of facts which he had caused others to believe, and on the faith of which t*hey had acted.

      The objections were sustained and the act excluded, the court -assigning for further reason that it was in the nature of an ex parte statement, and offered for the purpose of doing indirectly what the law forbids, the contradiction by a party of a solemn statement made by him-in a notarial act. Opponents reserved a bill of exception to this ruling.
    The District Court rendered judgment sustaining the plea of •estoppel and dismissing the opposition, and reserving to the administrator the right to file a proper account for his discharge. Opponents appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

We have upon several occasions referred to the •course to be pursued by an administrator, seeking to have his final account homologated and himself discharged. Succession of Van Hoven, 46 An. 920, 921; Succession of Gaines, 46 An. 252, 1238; State ex rel. Evans vs. Judge, 48 An. 931.

The administrator in the present case has not caused the widow in community and the heirs to be cited as he should have done, and issues have sought to be passed upon in this proceeding in the deci.sion of which they are interested. The failure of the administrator to make them parties is evidently due to the belief on his part that what he claims to have been a complete extra-judicial partition of the succession had the effect, ipso facto, of making further action thereafter in the premises unnecessary. In this position he is mis-'takeni It is his duty to file his account, make proper parties, and by proper evidence offered by himself account for everything which •came under his administration or for which he might have been responsible. This whether the final account be tendered by himself •or rendered in response to an “ action en d&livrance ” brought by the •heirs.

If pending the administration the widow and heirs have made, without objection on his part and that of the creditors, either a complete or a partial partition, and by reason thereof have withdrawn by consent from his possession and control the whole or a portion of the succession property, he should introduce the acts which evidence such fact and leave the effect of the same to be determined on the trial of his application for homologation and dis-charge. That application should, in case of oppositions, be regularly assigned for trial and tried contradictorily between all parties: in interest.

While it is true that the duties and obligations of administrators, may as between themselves and the widow and heirs of a deceased person be lessened or entirely done away with by extra-judicial settlements between themselves, where the rights of creditors are not jeopardized and the administrator urges no legal objection to such a course (C. C. 1320; Westholtz vs. Westholtz, 19 An. 293, 294; Denton vs. Woods, 19 An. 358; Succession of Charmbury, 34 An. 21; Succession of Baumgarden, 36 An. 46; Succession of Sterry, 38 An. 855; Hewes vs. Baxter, 46 An. 1284), we think the heirs are not cut off from having a legal examination gone into as to the scope, and effect of settlements claimed to be suclrin any given case, and that the administrator should pursue the regular course mapped out by law for the homologation of his account and his own discharge.

In the case at bar the heirs and widow evidently disagree as to the scope of the various acts which were passed between them. One of them on the face of the act, which has been produced as evidencing on her part a consent to a final and complete settlement, expressly limited the effect of the various acts to a partition of the particular-property referred to therein. As to this particular heir there has apparently been no consent to a final settlement. If so the opening-of these matters as to this heir opens the question for discussion as-to all of the parties. C. C. 1412; Gay vs. Marionneaux, 20 An. 358. We see no objection to the administrator’s (he being also one of the heirs) placing of record a plea of estoppel, but we think that in matters of this character the case should be sent to trial after all parties, have been called in, leaving the effect to be given to that plea to be determined after hearing and knowledge of the whole case.

We think the court erred in sustaining the plea of estoppel; that the administrator should file an account de novo based on what he-considers the present rights and obligations of parties to be. That the widow and all the heirs should be cited and the legal situation fixed and determined contradictorily between themselves as well as between themselves and the administrator. The latter can renew hereafter all exceptions and objections to which he deems himself legally entitled for his protection and defence.

In view of the absence of parties interested in the subject matter-of the settlement of this succession, we think it best to express no-opinion upon the incidental questions referred to in the briefs of counsel. It may not be amiss, however, to call attention of counsel to the cases of Boyle & Co. vs. Sibley, Admr., 22 An. 446; Tutorship of Davis, 22 An. 497, and Thezan vs. Thezan, 28 An. 442, and to their possible bearing upon the issues in the future which the present controversy foreshadows.

For the reasons herein assigned it is hereby ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed, and the cause is remanded with directions to the administrator to file a new account and tableau — to cite the widow in community of the deceased and his heirs and contradictorily between said parties and between said parties and himself, to have the rights and obligations of the parties in interest fixed and determined —leave being granted to the administrator to renew hereafter all exceptions and objections to which he deems himself entitled for his protection and defence. Costs of both courts to be borne by the succession.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 12,614.
    State of Louisiana vs. George Asbury et al.
    when parties have been jointly indicted for an offence, and only one is put upon trial, the others indicted are, under Act 29 of 1886, competent "witnesses against the accused on trial; this, whether they have been convicted or have pleaded guilty. State vs. Mach, 41 An. 1079; State vs. McManus, 42 An. 1194.
    4PPEAL from tie Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

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

      L. O. Hacker for Asbury, Defendant, Appellant.
    Submitted on briefs December 4, 1897.
    Opinion handed down December 13, 1897.
   The opinion of the court was delivered by

Nicholls, C. J.

George Asbury, Jr., the appellant herein, having-been indicted jointly with Columbus Henderson and Sam. Butler for-violation of Sec. 852 of the Revised Statutes, and having been put on trial and found guilty as charged, was sentenced to five years’' imprisonment at hard labor in the penitentiary. He has appealed..

He reserved during the trial two bills of exception, identical in character, differing only in the fact that the testimony of two different witnesses was permitted to be received over defendants’ objections, a separate bill being taken as to each of the witnesses. The bills declare that the State having offered Columbus Henderson and-Sam. Butler as witnesses against George Asbury, Jr., then being on trial, the accused objected to the witnesses on the ground that they had been jointly indicted with him for the same offence, and being-on trial at the same time with the accused they were for that reason not competent witnesses. The court ruled “ that inasmuch as the witnesses placed on the stand were no more on trial, because they had plead guilty of the charge, and the only party on trial in the case before the jury was George Asbury, Jr. (the said witnesses though convicted not being on trial with George Asbury, Jr.), they were competent witnesses under the provisions of Act No. 29 of 1886, and the decisions of the Supreme Court in State vs. Mack, 41 An. 1079, and State vs. McManus, 42 An. 1194.”

The minutes show that Columbus Henderson and Sam Butler were-arraigned under the indictment on the 22d of September — pleaded not guilty and asked for trial by jury — and the case was fixed for trial-for the twenty-sixth of the month.

That on the 23d of September, George Asbury, Jr., was arraigned,, pleaded not guilty, and asked for trial by jury, and his case was also set for trial for the twenty-eighth of the month.

The minutes of the 28th of September, under the title of the State vs. George Asbury, Jr., et al., recite that “Columbus Henderson and Sam. Butler, being brought into court, withdrew their plea of not .guilty and entered a plea of guilty, and were remanded to jail to-await sentence. That the case was called for trial by jury as against George Asbury, Jr., and that the State and defendant being ready for trial, the jury was ordered and was duly empaneled and sworn’ ’ (naming the jury).

“ That after hearing the testimony of witnesses, arguments' of counsel and charge of the presiding judge, the jury retired to their room of deliberation.

“ That returning into court, the prisoner being present, the jury rendered a written -verdict ‘ guilty as charged.’ That the verdict was ordered recorded, the jury discharged and the prisoner remanded to jail to await sentence.” The minutes of the 15th of October, under the title of the State vs. George Asbury, Jr., et al., recite that “ the prisoners, George Asbury, Columbus Henderson and Sam. Butler, being brought into court, the court sentenced each of them to imprisonment at hard labor in the penitentiary for five years.”

The only party before the court complaining is George Asbury, Jr.

It is very clear that, although Oolumbus Henderson and Sam. Butler were jointly indicted for the same offence with George Asbury, Jr., that they were not tried at the same time with the latter. Asbury was tried', by a jury, while Henderson and Butler seem to have been sentenced by the court on the strength of their plea of guilty. While the sentences of all three were entered at the same time, the jury were never called upon to pass, nor did they ever pass, upon the case of either Henderson or Butler.

The recital in the bills that the parties named were, when offered as witnesses against Asbury, on trial with the latter under a joint indictment against the three for the same offense, is not borne out.

The first section of Act No. 29 of 1886 declares that the competent witness in all criminal matters shall be a person of proper understanding * * * and the second section, that the circumstances of the witness being a party accused shall in no wise disqualify him from testifying; provided, that no one shall be compelled to give evidence against himself; and, provided, that if the person accused avails himself of this privilege, he shall be subject to all the rules that apply to other witnesses, and may be cross-examined as to all matters concerning which he gives his testimony; and, provided further, that his failure to testify shall not be construed for or against him; but all testimony shall be weighed and considered according to the general rules of evidence, and the trial judge shall so charge the jury.

In State vs. Mack, 41 An. 1082, this court said: “ The objection to the competency of a witness on the ground that he had been convicted and sentenced for grand larceny has no force since Act No-29 of 1886, which provides that “the competent witness in all criminal matters shall be a person of proper understanding,” with certain exceptions not germane to this point. This is the first statute passed on this subject in this State. Prior thereto the case was governed by the rules of the English common law as existing in 1805, which excluded convicted and sentenced felons. State vs. Millen, 33 An. 159; State vs. Benoit, 16 An. 273. But since the matter has now been regulated by statute no disqualifications can now be recognized outside thereof.

The doctrine announced in State vs. Mack was reaffirmed in State vs. McManus.

Appellant referring us to State vs. Prudhomme, 25 An. 522, in which the court said : “It makes no difference whether an accomplice who becomes a witness has been convicted or not, or whether he be joined or not in the same indictment with the prisoner to be tried, provided he be not put upon his trial at the same time,” calls our attention by italics to the concluding words of the quotation.

It is unnecessary to express any opinion as to what in the present ■condition of our statutes might have been the legal situation, had in point of fact the witnesses named testified in the cause while on trial with the appellant. The facts of the case are not as the bills of exception assume them to be. We find no legal ground for reversing the judgment, and it is hereby affirmed.


text:
    No. 12,682.
    State ex rel. Eli Scheff vs. E. North Cullom, Jr., Judge.
    where a defendant in a justice’s court admits all the facts going to establish his liability for a license under the exact terms of a municipal ordinance fixed at seventy-five dollars, an appeal taken to the District Court from a judgment based on such admission, having simply in view a decision of that court as to the legality of the ordinance, was properly dismissed.
    ^~^N APPLICATION for Writs of Certiorari and Mandamus.

      A. V. Coeo for Relator.

      Respondent Judge pro se.

    Submitted on briefs December 16, 1897.
    Opinion handed down December 28, 1897.
   The opinion of the court was delivered by

Nicholls, C. J.

Relator alleges that T. A. Roy, mayor of the corporation of Mansura, in the parish of Avoyelles, instituted proceedings by attachment against his property in the Third Justice’s Court of that parish in enforcement of a license for seventy-five dollars alleged to be due by him to said corporation as a peddler. That relator resisted said claim by pleading the general denial, specially denying thaa he was a peddler or that he owed said corporation anything on that or any other account whatever. • That on the trial of the cause it was admitted by the attorneys of both parties that defendant in the suit was the agent of one J. J. Landrenen, a rice planter in St. Landry parish; that defendant as agent aforesaid was selling rice grown upon the said Landrenen’s plantation in St. Landry parish, in the corporation of Mansura, in a wagon drawn by two horses; that defendant’s stock of rice amounted to the value of more than ten dollars, and that said Landrenen was producing said rice for the purpose of selling the same.

That judgment was rendered against him in said justice’s court, and that .from said judgment he took a suspensive appeal to the Tenth Judicial District Court for the parish of Avoyelles, presided over by E. North Oullom, Jr. That the said mayor made a motion in the said District Court to dismiss said appeal upon the ground that the District Court was without jurisdiction ratione materise of said cause for the reason that the question of the legality or constitutionality of a license tax imposed by a municipal corporation was involved and that appeals in all such cases were to be made returnable to the Supreme Court and not to the District Court.

That the said District Court sustained said exception and dismissed said appeal with costs. That the conduct of the District Judge in dismissing said appeal was arbitrary and illegal, and that said District Cou:t was vested with jurisdiction of said cause for the following reasons, to-wit:

That the pecuniary amount involved was sufficient to give said District Court jurisdiction of said cause. That relator did not and had never attacked or brought into question the constitutionality or legality of Act No. 78 of the acts of 1896, or of the municipal ordinance of the said corporation of Mansura under which said license was imposed. That he simply contended that he was not a hawker or peddler within the meaning and intendment of said act or ordinance, which did not cover and was not intended to cover the case of a farmer marketing his own produce as relator was doing when proceeded against by the attachment of his property in said proceeding. That the said arbitrary and illegal actioii of said judge in refusing to entertain jurisdiction had resulted in great damage to relator. That he had no remedy by appeal or otherwise to compel the District Judge to exercise jurisdiction in said cause except by application to the Supreme Oourt to exercise its supervisory power over inferior courts under the Oonstitution of the State. In view of the premises he prayed that writs of certiorari issue, commanding said judge to send up a certified copy of the proceedings in the cause to the end that their validity might be ascertained, and that after due proceedings a writ of mandamus issue from the Supreme Oourt directed to the said judge, ordering and commanding him to try and decide said cause, and he prayed for all such other orders and decrees necessary in the premises. A writ of certiorari issued as prayed for. The records ordered to be sent up were forwarded to the court, accompanied by a return or answer of the District Judge, in which he averred that the relator was in truth as in fact, as disclosed and admitted in open court, selling rice grown and produced in St. Landry or Acadia parish. That he acted for himself or through his agent in peddling the product aforesaid to the people of Mansura and vicinity. That the corporation was justly entitled to levy and collect the license tax of seventy-five dollars, and that the judgment of the magistrate’s court was correct. That the validity of the license tax was at issue in the proceedings, and under the law the appe.cl from the magistrate’s court condemning said sheriff should have been taken directly here-from to the Supreme Oourt. That he declined jurisdiction under the pleadings aud facts ratione materise.

That on motion in the District Oourt to dismiss relator’s appeal it was admitted that the town ordinance under which relator was sought to be made liable for a license tax was passed under authority of Act No. 78 of 1896, and that the class under which the proceeding was instituted, and which is embodied in said ordinance, is that of license for peddlers, and is in words and figures as follows: “That each and every peddler or hawker other than peddlers of fruits, vegetables, oysters, poultry, or eggs, shall pay an annual license graded as follows: When traveling on foot, ten dollars; when traveling on horseback, twenty-five dollars; when traveling in a horse vehicle, forty dollars; when traveling a two-horse vehicle, seventy-five dollars, and that the license was so graded for persons carrying on their business within the town.”

That it was “further admitted that counsel for relator expressly stated to the court that he was not attacking the constitutionality of Act No. 78 of 1896, nor the constitutionality or legality of the town ordinance under which the license was being attempted to be enforced.” The facts of the case were admitted to be as stated in relator’s application to the Supreme Ooart fcr a mandamus.

It is evident that were we to grant the mandamus asked for, that under the views entertained and expressed by the District Court as to the law of the case, relator would as a practical matter take nothing through this application.

The action as brought was a civil action before a justice of the peace, involving an amount of seventy-five dollars. Its d. cisión might or might not involve a finding of facts by the justice. If the facts set up should be admitted by defendant the case would present simply a question of law. If the facts should be disputed, the amount involved being sufficient to give appellate jurisdiction to the District Court, defendant would be entitled to an appeal to that court to have a final determination upon the facts. The issues raised by the defendant would determine whether or not the case should properly pass for adjudication to the District Court. Had not the issues which were involved been brought in limine to the attention of the District Court through a motion to dismiss, there is no doubt that the District Court would have primarily entertained jurisdiction, but with the ultimate result of a dismissal. Relator admitted both in the Justice’s Court and in the District Court all the facts going to establish his liabilty under the ordinance, but contended that with such facts admitted he was not as a matter of law liable for the license. Relator denies that there was any question before the District Court as to the constitutionality or legality of the ordinance under which the license was claimed. He avers that he conceded that it was legal and constitutional, and that his contention was simply that the justice erred in making the ordinance extend to and cover a case not contemplated by it or falling under its provisions.

The authorities representing the town of Mansura did not admit that the ordinance was not intended to reach such a case as that presented in this record, but maintained, on the contrary, that relator’s business fell under its precise terms.

There is no doubt that, under the facts admitted, the occupation pursued by relator fell under the terms of the ordinance. It could only escape from the operation of the provisions of the ordinance by maintaining that it could not legally have been made to so fall, or, in other words, that the ordinance as it reads was illegal. Relator’s contention is in reality a claim that the ordinance should have been so framed as to exclude him from the operation of its provisions, and that by reason of its failure to so exclude a case of this character the ordinance is illegal. The necessities of relators forced him to take this position in fact, though not in express words.

■ We are of the opinion that the action of the District Court in refusing to decide the point of law submitted to it was correct.

For the reasons assigned it is ordered that the orders heretofore rendered be set aside, and it is now ordered that relator’s application for a mandamus be and the same is hereby refused.