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    No. 12,044.
    Lionel L. Levy vs. Charles E. Fenner et al.
    (1) In demolishing the old and building the new party wall, under the conditions fully proved in this case, the plaintiffs exercised an absolute right conferred upon them by the law. Under the maxim, “Neminzm lozdit quijure suo utitur” they were not bound to indemnify their neighbor for any inconvenience or injury necessarily occasioned by the exercise of the right. Such a work must necessarily incommode the neighbor. It can not be prosecuted without an entry upon and partial occupation of his premises. It must disturb his enjoyment and that of his tenants. It may give ground for the annulment of his leases or for a diminution of rents. It may prevent the renting of his property. It may injure him in many ways. But so long and in so far as these injuries are inseparable from the exercise of ;the right, the neighbor is bound to submit to them and can claim no indemnity therefor.
    (2) But, on the other hand, plaintiffs are responsible for any exaggeration of these necessary damages, which, by any diligence, they could have prevented. They were bound by every means in their power to reduce to a minimum the injury and inconvenience occasioned to their neighbor; to occupy his property to the least extent and for the shortest time consistent with the exercise of their right, and to hasten by all practical means the completion of the wall and the restoration of the neighbor to the full enjoyment of his property. They were, moreover, bound, at their peril, to replace the neighbor at tho end of the work in a position equal in every respect to that which he occupied in the beginning, and to furnish him with a wall fit and adequate to support his building without injury.

      APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Farrar, Jonas & Kruttschnitt for Plaintiff, Appellant.

      Fenner, Henderson & Fenner for Defendant, Appellees.
    Argued and submitted May 23, 1896.
    Opinion handed down June 22, 1896.
    Rehearing refused November 30, 1896.
   The opinion of the court was delivered by

Watkins, J.

The plaintiff claims damages in the sum of $2770, as having resulted to his property by the demolition of an old, and the subsequent erection of a new building by the defendants upon the adjacent premises, the plaintiff and defendants being proprietors of adjoining buildings on Baronne street, in the city of New Orleans, with a wall in common between them.

After issue joined and a trial by the judge, there was a judgment in favor of the defendants, rejecting the plaintiff’s demand with the following reservation, to-wit:

“ Reserving his right to claim for injury to the plastering and paper on the walls, and inconvenience caused by the rubbish and debris left on his premises by defendants, and the expense of the removal of same, as well as for rents lost by the unnecessary protraction of the work — all of his claims for these items being dismissed as of non-suit.”

From that judgment the plaintiff has appealed.

The following is taken from the brief of plaintiff’s counsel as a fair synopsis of his grounds for claiming damages, viz:

“The petition alleges substantially as follows:
“ ‘That Charles E. Fenner and Samuel Henderson, Jr., are indebted to plaintiff in the sum of twenty-seven hundred and seventy dollars, for this:
“ ‘ That plaintiff owns the three-story brick building, No. 15 Baronne street, in the city of New Orleans, and has owned it for many years past; that on or about March 20, 1893, the defendants, who own the premises adjoining those of petitioner on the upper or Common street side thereof, tore down and demolished the buildings standing upon their said premises, and proceeded to build upon the same a new five-story building, known as the Medical Building; that the new building was a much larger and heavier one than the one which had stood upon the premises belonging to defendants, and that, in the course of the construction of the new building, defendants tore down and destroyed the party wall separating the new building from that of petitioner, and built a new party wall of greater width, height and weight than the old one; that in the course of the destruction of the old party wall and the construction of the new party wall defendants and their employees, through their fault, negligence and want of skill and care, caused heavy damages to the building and premises of your petitioner, said damages being due to the insufficient shoring up, supporting and bracing of petitioner’s building while' the support of the party wall was removed, and also to the settling of the new party wall, either by reason of insufficient foundations or of other causes to petitioner unknown. The damages are alleged to consist of the destruction of all levels in petitioner’s building, causing cracks and fissures in the walls thereof, and the straining out of shape of the doors and window frames, so as to prevent the doors and windows from properly closing, the breaking of a large plate glass window in the front of the premises; the destruction and failure to rebuild a portion of the wall of petitioner’s building, and in many other items of damage too numerous to mention in the petition, but to be proved in detail at the trial. That in the party wall on petitioner’s side thereof were several flues which were improperly reconstructed. That in order to restore petitioner’s premises to the condition in which they were before the tearing down of the building of defendants it will be necessary to take down and rebuild the brick front thereof; to repair and reset all doors and window frames; to shore up the front of the gallery; to raise certain floors and joists so as to level the floors in the building; to repair the ceilings and the roof; to replaster a great part of the interior; to repair all pipes and drains in and about the premises, and also fireplaces and flues therein, and to make a great number of other repairs, to be more fully detailed at the trial.
“ ‘That the new party wall was constructed without any regard to petitioner’s rights, and that all those portions of petitioner’s premises adjoining the new party wall required a general overhauling and repairing. The defendants and their employees left petitioner’s premises in an almost uninhabitable condition for a period of four months, whilst they were tearing down and rebuilding the party wall, whereas it could easily have been torn down and reconstructed within a delay of three weeks, if defendants and their employees had exercised ordinary diligence in the premises, and that petitioner was compelled to allow a material reduction in rents to his tenants by reason of the unreasonable and negligent delays of defendants and their employees in the reconstruction of the party wall, and the consequent inconvenience and annoyance to which his tenants were subjected.
“ ‘ The plaintiff alleges that it will cost two thousand three hundred dollars to restore the building to its coudibion prior to the building of the party wall, and that the damages due to petitioner by reason of the unnecessary delay in the building of the party wall, and inconvenience to which his tenants were subjected, and the allowance made therefor by him to said tenants for the difference in time between the delay necessary to tear down and rebuild said party wall and the time actually consumed, amounts to the sum of one hundred and seventy dollars, and that the time which will be required to repair the premises and restore them to their former condition will be ahout two months, and that the rent value of the premises is one hundred and fifty dollars per month.’
“ The prayer is for the recovery of two thousand seven hundred and seventy dollars, with interest from judgment until paid.”

The defendant’s answer is prefaced with the following peremptory exception founded on law, to-wit:

That they are not answerable for the damages claimed, for this, to-wit:

That they had the legal right to build the larger and heavier building which they constructed on their property ás alleged in the petition, and to tear down the old party wall separating said new building from the building of the plaintiff, and to build a new party wall of greater width, height and thickness than the old one, necessary to support said new and heavier building; and that plaintiff was bound to submit to the loss and inconvenience resulting from the proper execution of said work.

That, in the exercise of said legal rights, they entered into a contract with a competent and trustworthy builder, to construct said new building, including the demolition and reconstruction of said party wall, and the restoration of the plaintiff’s building, all of which he bound himself to do in a proper and workmanlike manner; and that,they yielded up to said contractor and builder the entire possession and control of said premises and work, reserving to themselves no direction or control as to the manner of doing the work, or as to the persons whom he should employ therein.

That said builder was, in all respects, an independent contractor, and, if damages were caused, through his fault, negligence, want of care, or skill, he alone, is responsible therefor.

Reserving the benefit of said exception, they make the following answer, substantially, viz.:

That the aforesaid contractor and builder bound himself to shore up the roofs and floors of the adjoining properties, and take down the party wall, and old foundations, and excavate for the new; protect the interior of adjoining properties and their contents, by proper and sufficient uprights and weather-boarding; and after new walls are up, restore these properties, in every respect, as they were, before the shoring and taking away of their walls was commenced; and to execute the same in a true and workmanlike manner. That, by virtue of said contract, said builder and contractor is responsible to them for any damages they may be held liable for to the plaintiff by reason of his failure to comply therewith; and that should they be condemned to pay plaintiff damages by reason of any fault or negligence of said contractor, they are entitled to like judgment over against him in warranty.

Thereupon, said builder and contractor appeared and joined the defendants in their answer, and fully admitting his liability to them, and his obligation to hold them harmless in the premises, he waived any formal call or citation in warranty and voluntarily made himself a party to the suit, and, for answer to the plaintiff’s demands, plead a general denial.

He specially averred and represented, that before he touched the building of the plaintiff he, himself, made a very careful inspection thereof, and, also, caused a similar examination to be made thereof by others. That upon said examinations, it was ascertained that the building was old and in bad condition; that the front wall was rotten and badly cracked in numerous places; and that the building’ was out of level and inclined toward No. 17 Baronne street.

He further averred that he caused a measurement to be made and found a depression of about three inches on that side. That he further ascertained, in the course of that investigation, that the doors' and windows were out of plumb. He further avers, that in tearing down the old party wall, he ascertained that it bad been built on an entirely improper and insufficient foundation, having nothing but a one-brick footing or projection, with a single plank under it as far back as the three-story wall extended; and, beyond that, no footing’ at all, save and except a single plank under the wall. That such a-foundation readily accounted for the sinking which had taken place in plaintiff’s building on that side.

He further represents, that when he began tearing down the party wall, he discovered that the front wall was insecure and in danger of falling when the support of the party wall was removed. That plaintiff informed him that the Oity Engineer’s office had condemned,, or was talking of condemning, the said front wall; and that he obviated the necessity of this by carefully bracing and tying the wall,, which would have been unnecessary if the wall had been sound. That by this means, he maintained the walls of plaintiff’s building until the new and solid walls of the new building were erected; and that he then securely attached them thereto, leaving them in a better condition and much more secure than they were before.

Said contractor further answering specially 'denies that the shoring up, bracing and supporting of plaintiff’s building were insufficient; but, on the contrary, he avers that the same were done in the best manner possible and with the greatest care.

He denies that the flues in the plaintiff’s building were improperly replaced after the new building was completed ; and specially avers, that he placed them exactly as they were before.

He avers that said party wall was built with all possible regard for the plaintiff’s rights, and°as rapidly as circumstances would admit— reciting in detail and with precision some of the occurrences that caused unavoidable delay.

He emphatically affirms, that no repairs were required in order to restore the plaintiff’s building to the condition it was in prior to the said work being commenced, and he avers that said building is in as good and, indeed, better condition than it was before said work was begun.

That, in addition, and although not bound to do so, and to avoid a lawsuit, he has offered, at his own expense, to do everything rea-sonable to satisfy the plaintiff’s complaint, but that his offers have all been declined. This extended analysis of the pleadings will more readily bring the testimony within proper bounds, and render same more easily comprehended.

It is well to observe that we find nothing in the record to justify us in disturbing the ruling of the judge a quo with respect to the reservations made in his decree.

In his reasons for judgment, he says:

“ It is claimed that defendants protracted the work unecessarily; that in consequence plaintiff’s tenants were disturbed, and to some extent dispossessed, and that he was compelled to grant commutations of rent to them. It is proved that some time was lost, by reason of the failure of defendants’ contractor to obtain material as needed. It is likewise proved that the contractor completed the work within the stipulated time and delivered the building.
“ It is testified by expert witnesses that the work was prosecuted and completed within a reasonable time. I am not prepared to decide presently that plaintiff can recover on this ground, and I deem it best to reserve plaintiff’s rights on this subject.
“ But it is proved that by reason of leaks and exposure the plastering and papering on the interior walls were injured and stained, also that plaintiff was put to some trouble and expense, in the removal of the debris of the work from the premises.
It is proved that allowance was made to Mr. Logan, a tenant,for new papering. The evidence leaves the exact dates and the-amounts in doubt. There was a fire about the middle of July, and the evidence indicates the other items as of date in October. The-insurance company made repairs and for damages to the roof the in-surance made reparation.
“I am inclined to think that plaintiff may have a meritorious-claim for some amount for injuries to the plastering and papering,- and also for expense incurred in removing the debris from his premises. I have studied the record and I regret that I find no data upon which to make even an approximate estimate. It was plaintiff’s duty to make his case certain.” These are the matters which are embraced in the reservations in the judge’s decree.

On the main issue, the gravamen of the plaintiff’s case is distinctly stated in the subjoined allegation of his petiti n, viz.:

“ That, in the course of the construction of the new building, defendants tore down and destroyed the party wall separating the new building from that of petitioner, and built a new party wall of greater width, height and weight than the old one; that in the course of the destruction of the old party wall and the construction of the new party wall defendants and their employees, through their fault, negligence and want of skill and care, caused heavy damages to the building and premises of your petitioner, said damages being due to the insufficient shoring up, supporting and bracing of petitioner’s building while the support of the party wall was removed, and also to the settling of the new party wall, either by reason of insufficient foundations or of other causes to petitioner unknown.”

That is to say, that in the course of the destruction of the old party wall, and the construction of a new one, defendants and their employees, through their fault, negligence and want of skill, caused damages to the plaintiff’s building in the particulars enumerated; and the petitioner then specified the cause of same to have been, first, in the “ insufficient shoring up, supporting and bracing of petitioner’s building, while the support of the party wall was removed,” and second, “ the settling of the new party wall, either by reason of •insufficient foundations, or of other causes unknown,”

All of these allegations are emphatically denied by the defendants, .and the contractor and builder.

As the charges and defences are common to both the defendants and the contractor, same may be taken together and disposed of.

The foregoing synopsis, and statement show this case to depend amost entirely upon questions of fact — both parties relying exclusively upon a single decision of this court, as solving the questions of law that are involved.

And unfortunately, as in many cases, there is a serious and, seemingly, irreconcilable conflict between the statements of the witnesses, which greatly embarrasses the court in arriving at an accurate and just conclusion as to the rights of parties.

The substantial facts, as detailed by the witnesses, are as follows, viz.:

William Fitzner, an experienced architect, states, as a witness for the plaintiff, that he made an examination of the plaintiff’s premises,prior to the construction of the new building of the defendants, and identified the annexed report, of date of March 7,1893, of his examination thereof to the plaintiff.

L. L. Levy, Esg.:

“ The undersigned have this day examined your building, No. 15-Baronne street, as to its condition, and report as follows:
“ The party wall between Nos. 15 and 17 Baronne street, is a 13-inch wall and is in good condition; there is one crack in the said party wall, in rear of the third story high part of building, which could be easily repaired.
“ The roofs of building (zinc and slate) are in good condition. The valley gutters and flashing of. roofs and down pipes are in good order.
“The width of your building between party walls is 19 feet 10' inches in clear; against party wall, between Nos. 15 and 17, are two chimneys with 5 feet 8 inches breast, and in rear one chimney with 4 feet 8 inches breast; the fireplaces are in good order, with grates,, fenders and blowers complete. The mantels are of iron. The floors-of first and second story of building are level; the floor of third story is one-half inch high at party wall between Nos. 15 and 17 Baronne street.
“ The party wall between 15 and 17 is furnished with ceiling stuff in-first story, and plastered in second and third story; the plastering, is furred out in rear of second story (at last room).
“ The front wall of your building is straight and plumb, and the-galleries are in good order.
“ Very respectfully, etc.,
(Signed) “ Wm. Fitznbr, Architect,
“Jos. O. Tibrnby, Carpenter.
New Orleans, March 7, 1893.”

The witness states that the said examination was made at plaintiff’s request, who accompanied him, stating as his reason for desiring the examination and report was, that the defendants intended to erect a new building, and he wished to know the condition of the building as it was then.

This witness testifies that he made another examination and report to the plaintiff on the 14th of October, 1893, after the new structure of the defendants was completed, and which is of the following tenor, viz.:

L. L. Levy, Fsg.:
“ According to your request, I have examined the three-story building, No. 15 Baronne street, to ascertain the damages sustained by the erection of adjoining new medical building, and now report as follows:
Front. — The front of building was badly damaged, cracked and torn up by the insufficient shoring, tieing and bracing during erection of new adjoining building, and has suffered additionally by the settling of same. The front of building is unsafe and ought to be rebuilt as soon as possible.
“ First story. — The store floor is three inches out of the level, the lowest part being on the side of new party wall. The board lining of new party wall is badly put up and left incomplete. The store ceiling is left incomplete under one of the upper chimneys, the jams of which are started too low and leaving a hole which is covered by a metal sheet.
Second story. — The floor is two and three-fourth inches out of the level, the lowest part being on side of new party wall; the skirting on the new party wall are badly fitted and left unpainted. The fireplaces are left without ash pans, fenders and blowers. The hollow spaces behind iron mantels are not filled in. The fireplaces, hearths are laid without solid bedding. The sill of front window nearest to new adjoining building is one and three-eighths inches out of level.
Third floor. — The floor is three and five-eighths inches out of level, the lowest part being at new party wall. The hollow spaces behind iron mantels are not filled in, and the grate flanges are not closely fitted to iron works of mantels. The sill of front window nearest to new adjoining building is one and five-eighths inches oat of level.
Sundries. — The zinc roof of rear building requires repairs; holes are visible therein, evidently made by falling bricks. The outside lining of rear wall is not properly flashed at point of junction with adjoining new building. The thirteen-inch brick fire wall at above-mentioned zinc roof was taken down, but not rebuilt in proper manner. The front roof down pipe is left incomplete. The joining and cementing of front at junction with new adjoining building is improperly done. The second-story front gallery floor shows one-half inch fall at end nearest to new building, and thiee and five-eighths inches fall at the other end.
“ In new party wall of fourth story of adjoining building are four window openings, and in fifth story of same are four windows and one twin window; all these windows have outside movable shutters attached. The front cornice side return of new adjoining building projects about two and one-half feet beyond outside face of new party wall.
“ The restoration of building No. 15 Baronne street will cost the sum of two thousand two hundred and ninety-six dollars.
•‘Respectfully submitted.
(Signed) “Wm. Fitzner, Architect.
“New 07-leans, October 14, 1893.”

On comparing the two reports, it will be observed that in the Jo7-77ier the party wall was stated to be in good conditition, with the exception of one crack of insignificant size, in the third story, and that the roofs, gutters, pipes, fireplaces, mantels, etc., were likewise, and that the floors of the first and second stories were level, and the front wall was straight and plumb, and the galleries in good order; while in the latter it is stated that the front of the building was badly damaged, cracked and torn up by the shoring, tieing and bracing of same during the erection of the new building; that the store floor is three inches out of level, the second floor two and one-half inches out of level, and the third floor is three and one-half inches out of level — all three of the floors inclining to the side next to the new party wall.

To supplement and confirm the correctness of these two reports, Fitzner, and Tierney, a carpenter, were interrogated, and we •extract the following from their testimony.

The former states, upon making an examination of the two reports, that they were substantially correct. In speaking of the condition in which plaintiff’s building was left at the completion of the defendant’s new building, he says, that the shoring was improperly done, pointing out that same was defective at the front corner where there was a large showcase. He says “ the front came right over and pulled it from the other building.” He says, that the defendant’s contractor, originally, put in one line of shoring, and, finding that insufficient, he put in another line, about one month afterward, finding it “ necessary to reinsure his first line of shoring.” He-says, that he ascertained that the floors were not level, by measuring them by means of a level.

That the front sill of the front window is thirteen inches out of plumb, and that the front gallery has scarcely any fall on one-end adjoining the new building. “ That,” he says, “is the difference between them. That shows the amount of settlement; that is, the settling down on that end; ’ that is the settling of the new building which has ‘ carried the gallery down with it.’ ”

On cross-examination, he states that, when first examined by him, “ the front wall was in good condition, * * * It did not bulge out. It was straight, and no cracks were visible, and (he) therefore concluded (that) the wall was in good condition.”

That, in his opinion, it will be absolutely necessary that an entirely new front wall should be constructed for the plaintiff’s building, and that the sides of the floors should be raised, so as to bring them up to a level. And he places the cost of the wall at about one-half of the damages claimed in this suit.

He states his theory to be “ that the new party wall caused a depression of the earth upon which (the) sleepers rested.”

“ Q. Mr. Fitzner, do you mean to say, that the fact that the floors of Mr. Levy’s building are out of plumb, is due to the settlement of the medical building party wall?
“ A. Most undoubtedly.
“ Q. If that party wall had settled to any appreciable extent, at all, would it not be evident in the medical building?
“A. No, sir; not in the medical building, none whatever. That is, if there was an unequal settlement it would; but it was an equai settlement,” etc.

The summary of ¿this witness’ examination is, that, on account of improper shoring of plaintiff’s front wall, it was practically destroyed and demolished, during the destruction, by the defendant’s contractor, of the old party wall, and the construction of a new one,whereby the cost of a new front wall will have to be incurred, which will equal one-half the total sum claimed in this suit; and that, on account of inherent defects in the construction of the new party wall, a settlement has taken place of the new building, which has produced a corresponding depression of the floors of the plaintiff’s building on the side adjoining the new party wall — all of which was-occasioned through the negligence, and want of due care and proper skill, on the part of the defendant’s contractor and his employees.

An experienced engineer testified “that when he made an examination of the plaintiff’s building before the construction of defendant’s new one, he found the building to be old, but in good order. The walls were reasonably vertical, and its condition, generally, was-a reasonably good one.

“ That, after the construction of the new building, he found that-the floors had settled; that is (they), were out of level, and the partition doors and door and window openings were more or less disturbed by the settlement.”- That is to say, “ the settlement of the-new party wall.”

But, this witness states, that the work of demolishing the old party-wall had been commenced before he made his examination, though-it was still standing; and he admits that “there were some cracks-visible.” That “ they were old cracks (which) had not increased' for some time;” and that, “ it was for that reason (he said) it was in reasonably (good) condition for an old wall.”

He admits that he made no actual measurements; “ not with an instrument (but) went through and used (his) eye in forming (his); conclusions.”

He states that he visited the new building while in the course of construction, and “ found the cracks in the building enlarged, and! some new ones opening; that the old ones had opened to some extent, and some new ones had started.”

“ Q. Did you consider it made any material difference in the efficiency of the walls for the purposes of that building (that is) this increase in the old cracks?
“A. Well, it impaired it of course; that is, it is not as good a wall, as it was before.”

Another witness for the plaintiff, while describing the condition of' the building of the plaintiff somewhat as those witnesses we have referred to had done, admits that the “ comparative condition of the-premises after the party wall had been built, and the work “ of restoring the premises had been done,” was equally as good as it was-“before the party wall was demolished.”

This witness was a tenant of the plaintiff, and occupied the premises in question as a place of residence both before and after the-erection of the defendant’s new building, paying sixty-fiv.e dollars; per month rent.

The plaintiff, as a witness in his own behalf, says that prior to the construction of the defendant’s new building, his own was “in good condition (and) nothing the matter with it; ” and that “the front wall was sound and solid.” That at present there are “ large cracks in the wall; some of them that you can put your hand in.”

Several other witnesses were interrogated in behalf of the plaintiff, whose testimony, in a general way, corroborates the statements of the witnesses we have referred to, in several particulars.

On the contrary, the contractor, his employees, and others declare that the shoring of plaintiff’s building was done in the very best possible manner, every possible pains and precaution having been taken therein.

The witnesses of the defendant, generally, state that the front walls of the plaintiff’s building were naturally defective by “ reason of great age.” That “the mortar was bad and the brick was bad.” That “they had no bond to it; ” and one of them says that, in fact, one “ could push them down.”

One witness explains “bond” to mean “the bricks lapping over -each other; ” and, that the absence of a bond is a defective wall.”

Another witness states that the foundation of plaintiff’s building \was very diminutive, about three feet in diameter or width.

The contractor of the defendant, as a witness, states that he made ■a careful examination of the premises before commencing the work of shoring up the walls of the adjoining premises, and found “the walls were old and cracked, and fissures running from about half way of the first floor gallery to the top; ” and that he “ found that the front wall was very old, and had considerable cracks.” That “the windows were considerably out of level, and the floors sagged •from front to rear in the centre — that is, from front to rear * * * ■.from the stairway on the down-town side,” etc.

That, “ in securing the front wall, owing to its rotten condition '(he) had to use extra shorings and extra clamps to (hold) the building up, in order to keep this front wall from falling out.”

That he “had to take extra precautions on account of the condition of the wall; (as,) ordinarily, the usual wall requires only ordinary shoring, but, in this case, extra shoring and clamping were required.”

He further explains, that he found the internal condition of plaintiff’s wall very bad, indeed.

That, “ in the first place, it was built out of red bricks of inferior character.” That “the bricks were soft; what (are termed) salmon bricks; and, when the walls were taken down, the bond, instead of one brick lapping over another, they run straight for, probably, a distance of four feet, which rendered no tie to the front, at all.”

He explains, that “ the effect would be in the settlement of the front wall;” that is, the settlement “would shore itself, without making any effect on the side walls.” That “there was not sufficient tie to keep the front with the side wall.”

In conclusion, the following may be taken as a fair summary of this witness’ testimony:

“ Q. Was (the plaintiff’s front wall) in as good condition when you left as when you began?
“A. In my judgment it was in better condition.”

And, without going into further details, we may quote the following as the substance of the proof with regard to the settlement .of the new building, viz.:

“ Q. Mr. Van Horn, does the Medical Buildings how signs of having settled, at all, since it was erected?
“ A. No, sir.
“ Q. What would you say, that it had, or had not settled, from •your examination of it?
“A. Well, there is a settlement always in it from the shrinkage of the mortar; but, it is so little, it amounts to no damage. Have been through the building several times, and examined the walls outside and the front wall and see no signs of cracks or fissures in the wall whatever, and judge from that there could not have been any’settlement amounting to anything whatever.
“ Q. If that building had settled appreciably would there be any (visible) effect on the sidewalk or Schillinger pavement in front?
“A. As a matter of course.”

Other witnesses substantially corroborate this witness’ statement, both in respect to the bad condition of the front wall of plaintiff’s building prior to the demolition of the old party wall, and as to the settlement of the defendant’s new building having been, practically, insignificant.

The whole testimony satisfies us that the complaint of plaintiff with regard to the negligence and want of skill and care on the part of the defendant, his contractor and. his employees in the manner in which they demolished and, subsequently, reconstructed the party wall is not made out.

But, that in so deciding, we do not found our opinion upon the theory that the plaintiff or his witnesses testified falsely, rather upon the idea that the defects in the front wall of the plaintiff’s building were latent and invisible upon superficial observation; hence the developments made in the course of the work presented an altogether different case from that which was, originally, supposed to exist.

Our conclusion is that the finding of fact by the judge a quo is, substantially, correct. We are of the opinion that the evidence fairly shows that the defendant’s contractor and his employees used every reasonable precaution in shoring up the plaintiff’s building before the work of demolishing the old party wall was commenced, and that in the course of the construction of the new party wall they were reasonably careful and circumspect in the manner in which they performed the work, and thus reduced the damage which the plaintiff as adjoining proprietor was bound to sustain to a minimum.

We are of opinion that the plaintiff carried the burden of establishing by a preponderence of proof, that it was through the negligence, carelessness or want of skill on the part of the defendant’s contractor and of his employees that the front portion of the plaintiff’s building was badly injured, as well as that the settling of defendant’s new building caused the floors of plaintiff’s building to incline toward the new party wall, to the plaintiff’s great detriment and injury.

And we are equally of opinion that he has failed to discharge that burden of proof on each of the foregoing propositions.

The law of this case, as applicable to the facts before us, is well stated in Heine vs. Merrick, 41 An. 194, and from which we have extracted the following, viz.:

In demolishing the old and building the new party wall, under the conditions fully proved in this case, the plaintiff exercised an absolute right conferred upon him by the law. Under the maxim ‘ Neminem liedit qui jure suo utitur,’ they were not bound to indemnify their neighbor for any inconvenience or injury necessarily occasioned by the exercise of the right. Such a work must neces - sarily incommode the neighbor. It can not be prosecuted without an entry upon and partial occupation of his premises. It must disturb his enjoyment and that of his tenants. It may giV e ground for the annulment of his leases, or for a diminution of rents. It may prevent the renting of his property. It may injure him in many ways. But so long and in so far as these injuries are inseparable from the exercise of the right, the neighbor is bound to submit to them and can claim no indemnity therefor. Such is the well settled jurisprudence of France under like codal provisions. 5 Duranton, No. 331; 11 Demolombe, No. 406; 2 Aubry & Rau, 322; 1 Pardessus, No. 174. * * * But, on the other hand, plaintiffs are responsible for any exaggeration of these necessary damages, which, by any diligence, they could have prevented. They were bound by every means in their power to reduce to a minimum the injury and inconvenience occasioned to their neighbor; to occupy his property to the least extent and for the shortest time consistent with the ex - ercise of their right, and to hasten by all practical means the completion of the wall and the restoration of the neighbor to the full enjoyment of his property.
“ They were, moreover, bound at their peril, to replace the neighbor, at the end of the work, in a position equal in every respect to that which he occupied in the beginning, and to furnish him with a wall fit and adequate to support his building without injury.”

In view of the evidence we feel safe in affirming, that all the requirements of the foregoing quotation have been fulfilled by the defendant, except and in so far as are enumerated in the reservations of the judge a quo.

Our learned brother of the District Oourt has given patient consideration to the law and evidence and has rendered a proper decree.

Judgment affirmed.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 12,238.
    State ex rel. Daniel Johnson and Jack Britton.
    Belief by habeas corpus will be refused in ease it is developed by the proceedings tobe an application of an accused person for a preliminary examination— neither the Constitution nor the statutes having conferred the power, or imposed the duty, on the Supreme Court, or the judges thereof, to act as committing magistrates.
    QN APPLICATION for Writ of Habeas Corpus.

      William L: Thompson for Petitioner.

      M. J. Cunningham, Attorney General, and Robert J. Perkins, Jr., District Attorney, for the State.
    Argued and submitted October 3, 1896.
    Opinion handed down October 10, 1896.
   The opinion of the court was delivered by

Watkins, J.

Alleging that they were held in custody by the sheriff of the parish of Jefferson by virtue of an affidavit charging them with the murder of one John S. Prayther on the 17th of August, 1896, and a capias thereunder issued, and the present absence of the District Judge from the Státe, relators seek to be finally discharged therefrom, or granted their release on furnishing bond, insisting that theirs is a case coming within the court’s original jurisdic • tion under the Constitution to grant relief by habeas corpus. Art. 89 of the Constitution.

But, in our opinion, their petition states no ground for the relief sought, considered on its merits.

The application is confessedly for a preliminary examination; and their averments are that, upon the evidence, when adduced, it will appear that no crime has been committed by them.

Neither under the provisions of the Constitution nor statutes of the State has this court, or the judges thereof, been charged with the duties of committing magistrates. Constitution, Art. 81 et seq.; Revised Statutes, Sec. 1010 et seq.

While it is true that the Constitution authorizes this court and the judges thereof to issue writes of habeas corpus, it is their province to determine the method in which and the circumstances under which, in any given case, such jurisdiction will be exercised.

In contemplation of law a preliminary examination of an accused person is to be set on foot upon the application of some judge or justice of the peace of the vicinage, and its province is to perpetuate the testimony against the accused. Revised Statutes, Sec. 1010.

It seems to our minds a perfectly clear proposition, that we would run counter to all precedent and authority to take up this case, hear the evidence and release the prisoners on bond, or discharge them, upon such evidence as might be presented by the relators within the scope of their petition.

Neither the District Judge nor District Attorney of the district within which the parish of Jefferson is situated, has been made a party; and certainly the issue raised can not be contested and. determined contradictorily with the sheriff alone.

The following cases are pertinent, and, in our opinion, applicable, viz.: State ex rel. Vickers, 47 An. 662; State ex rel. Baumann vs. Sheriff, 44 An. 1015; State ex rel. Rice vs. Sheriff, 40 An. 3; State ex rel. Hunter vs. Sheriff, 36 An. 606.

The petition, it is true, avers that the judge of the district is absent, but it does not show that he will continue to be absent for so great a length of time as to cause relators great injury, or submit them to injustice thereby.

Such averments would, in any case of this kind, be jurisdictional.

We are of opinion, upon careful reflection, that relief in the present form should be denied, reserving relators’ right to preliminary examination according to law, or suitable application for bail.

It is therefore ordered and decreed that the rule nisi be discharged at relators’ cost, and the relief prayed for denied, reserving their right to preliminary examination, or application for bail before the Judge of the District Oourt.


author: 'Miller, J.

text:
    No. 12,242.
    State of Louisiana vs. Nick Ramsey.
    The court affirms the rule that the statement of observers, not participants in the-act, the subject of investigation, are not admissible as res gestee. Wharton’s-Criminal Evidence, Secs. 262, 263 : 89 An. 472; 42 An. 996.
    A PPEAL from the Third Judicial District- Oourt for the Parish of Olaiborne. Barksdale, J.

      M. J. Cunningham, Attorney General, Charles P. Roberts, District Attorney (E. II. McClendon and L. E. Thomas of Oounsei), for Plaintiff, Appellee.

      J. A. Richardson and J. W. Holbert for Defendant, Appellant.
    Submitted on briefs November 7, 1896.
    Opinion handed down November 16, 1896.
   The opinion of the court was delivered by

'Miller, J.

The defendant appeals from the sentence for manslaughter. He relies on several bills of exception, but our view in /respect to one of the bills is decisive of the case.

A witness for the State, present when the deceased received the ■fatal shot, passing from the room where the shot was delivered to ithe front room, stated to the persons who were there in answer to the question What is the matter back there? ” and stated that Nick Ramsey had shot Jim Moffitt, and shot him down for nothing.” This statement was permitted to go to the jury as part of the res gestas, over the defendant’s objection reserved by his bill of exceptions. Res ¡gestae refers to the conduct and declarations of the parties accompanying or closely linked to the act, the subject of investigation. :Such declarations or conduct regarded as arising from or suggested by the act itself, and as the unpremeditated declaration or conduct .of the moment, are admitted, because of that weight the law •attaches to conduct, and declarations under such circumstances. Manifestly, that which is said or done after the act, the subject of investigation, has not the sanctity the law accords to that done or said at the time of the act. Hence, the law excludes from res gestae the narrative of a past transaction. 1 Greenleaf on Evidence, ;Secs. 108-110. On the relation in point of time between the .act and the declarations referring to it, the authorities are variant. ,In some cases a brief interval between the act and the statement has been deemed sufficient to exclude the statement; -.in other cases of greater intervals, the statement has been •deemed within the res gestae. While time is an important test in ascertaining the res gestae, it can not be said that the interval is to tbe measured by any fixed rule as to seconds and minutes. Rice on ■Evidence, 125; Wharton Criminal Evidence; State vs. Molisse, 38 An. 381. In this case the statement was at no greater time after the •shooting than was requisite for the party who made it to pass from the back to the front room. We say this much in reference to the question of time, because of the discussion on that point we find in the briefs. Again, it is urged on us that the res gestae does not include the statements of those the brief terms third parties present .at the time. In some of the authorities cited by the State on this point the statements of those present at the time were treated as participants. There are eases, too, in which declarations of parties present, not involved in the act constituting the crime, have been -admitted. State vs. Moore, 38 An. 66; State vs. Horton, 33 An. 290; State vs. Corcoran, 38 An. 949. We are not required to lay down the rule with respect to the declarations of parties present at the time not participants in the act. The decision, in our view, is controlled by the fact that in this ease the declaration sought to be given in evidence was that of an observer, and announced his -opinion of the guilt of the accused. It was not the narration merely of the fact itself, but the expression of his opinion as to its character. Under all the authorities it seems to us that statement was not part of the res gestas. Wharton thus states the law: “ Narrations of the transaction are inadmissible, unless admissions of the party charged * * * Comments and criticisms of-observers can not be introduced as res gestae. Such persons must be called and examined as to what they saw. Wharton Criminal Evidence, Secs. 263, 264. Other text writers restrict res gestae to the statements of the parties or of those connected with them in the transaction. Roscoe, p. 23; 1 Bishop Criminal Law, Sec. 1087. Our courts have excluded such testimony. State vs. Oliver, 39 An. 471; State vs. Riley, 42 An, 993. The statement in this case was that of an observer. It announced his opinion. In either view his statement was inadmissible. He was on the stand, and could have been examined as to all facts in his knowledge. His opinion was .not evidence; it was for the jury to form their conclusion from the facts given in evidence. The admission of the statement entitles the accused to a new trial.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be reversed and set aside; that a new trial be and is hereby granted the defendant, and that he be held in custody to stand and abide the result of said new trial.


author: Breaux, J.

text:
    No. 12,236.
    State of Louisiana vs. Stella Griffin et al.

      Confession. — The hbpe of immunity (no promise of immunity having been made) is not such inducement as to make the confession inadmissible.

      Conspiracy. — The proper foundation having been laid and the conspiracy sufficiently established, the act done by one in furtherance of the unlawful design, is, in law, the act of all, and the declaration of one of the accused, at the time of doing such act, is evidence against the others.

      Charge of the Com-t. — Although it is made the duty of the court to instruct the jury not to hase any presumption against the accused upon the ground that he has not chosen to testify; the defendant, may, in effect, waive the instruction.

      Jm-ors on Voir Dire. — The information furnished to the District Attorney about the fairness and responsibility of certain jurors was not attended with circumstances of impropriety.

      2fame of the Deceased. — The proceedings were regular and the rulings correct, except in one particular — the principal was not informed by the indictment for the murder of what person he is accused, and the accessories before the fact are charged with having feloniously counseled and procured the homicide of a person not named or identified.
    PPEAL from the Fourth Judicial District Court for the Parish of Jackson. Machen, J.

      M. J. Cunnnigham, Attorney General, and A. B. Hundley, District Attorney, for Plaintiff, Appellee.
    O. P. Thornhill for Defendant, Appellant.
    Submitted on briefs November 7, 1898.
    Opinion handed down November 16, 1896.
   The opinion of the court waR delivered by

Breaux, J.

The accused, Stella Griffin, as principal, Frank Johnson and Will Smith, as accessories, were indicted for the murder of John Griffin.

They were tried, found guilty without capital punishment, and sentenced to hard labor in the penitentiary for life. They prosecute this appeal.

Four bills of exception were reserved by them; a motion for a new trial and a motion in arrest of judgment was filed.

The first bill of exception was taken to the admission in evidence of the confession of Stella Griffin, made to A. J. Bell, a witness.

The facts as stated in the bill are that the witness, a newspaper writer, said to her that her first statement was not accepted as the truth by the public, and suggested that she should make a correct statement. The court certifies that after the District Attorney examined the witness, and the counsel for the defendant had cross-examined him touching the proper basis for the admission of the confession, it was evident that the witness, prior to receiving the confession, informed the defendant that he was a newspaper man, who wanted a statement from her for publication. There was no violence used, no threats made and no inducement offered. On the contrary, he informed her that there was nothing he could do for her in the way of immunity from punishment.

Having heard the testimony upon this point, the court admitted the evidence.

It does not seem to us that the rights of the accused were prejudiced by the court’s ruling admitting the confession in evidence.

There was no such inducement offered as destroys the voluntary character of confession.

The trial judge in whose presence the accused and the witness were, who must have considered the age, the surroundings, the circumstances and all the proof, was satisfied that the confession was voluntary. We can conceive of no reason why his ruling, admitting the confession, should be disturbed.

The second bill of exception was reserved to the court’s ruling in admitting testimony, it is urged by the defendants, although no conspiracy was shown as required. The indictment sets forth a conspiracy.

The trial judge wrote a detailed statement of the facts showing the conspiracy charged; it is copied in the bill of exception and supports his ruling. No attempt was made to disprove the statement, which has every appearance of being correct. Sufficient foundation having been laid, the evidence consisting of the conversation of one of the accused, with the witness, out of the presence of the principal Stella Griffin, was admissible against all the parties to the conspiracy in matter of carrying out the common design. Archibold, 7th Ed. Vol. 11, p. 1058.

The third bill of exception was taken to the court’s ruling on the motion for a new trial.

The first ground of the motion is that the court failed to charge the jury, that no inference was to be drawn from the fact that the defendants did not avail themselves of the right of testifying.

It is urged by the defendants, with some force, that Act No. 29 o the Acts of 1886, makes it the duty of District Judges to charge the jury not to base any presumption against the accused upon the ground that he has not chosen to testify.

The court, unquestionably,' should always instruct the jury as required by the statute cited, should the accused choose not to testify. The trial judge informs us, by statement in the bill of exception, that the request for a written charge was not seasonably made; notwithstanding that fact a charge was written and read to the jury to which no objection was offered, and that it was through oversight that he did not specially instruct the jury as required by Act 29 of 1886. He called upon counsel for the accused to know if he had any special charge or instruction. The counsel replied in the negative. The accused took the chances of an acquittal and made no objection prior to the application for a new trial.

There may be cases in which the objection here made would be of no avail to annul a verdict. Accused may choose to waive well-expressed rights. Whether there was a waiver in this case is not important to decide, for the case must be remanded on another ground.

The second objection urged, shown by Bill No. 3, has reference to the alleged suggestions and advice on the part of the clerk of the court to the District Attorney. There was nothing officious on the part of the former, and nothing improper on the part of the latter. He desired information in regard to jurors who would impartially discharge the duty devolving upon jurors.

The District Attorney was a stranger in the parish. The clerk had a large acquaintance. The information given about the fairness and responsibility of jurors, in compliance with the District Attorney’s request, was legitimate and proper. The accused had no cause to complain.

The fourth and last bill of exception was taken to the judge’s ruling in refusing to sustain the motion in arrest of judgment.

The following is an extract from the indictment setting forth the crime charged, with blank space as in the original:

“In and upon one John Griffin in the peace of the State then being did and there wilfully, maliciously, feloniously and of her malice aforethought make an assault upon him, the said John Griffin, and did then and there wilfully, maliciously and feloniously, and of her malice aforethought kill and murder and the grand jurors aforesaid upon their oath aforesaid do further present that one Frank Johnson and Will Smith, late of the parish of Jackson, district and State aforesaid, before the commission of the aforesaid offence and felony aforesaid, the said Frank Johnson and Will Smith aforesaid did feloniously, wilfully, maliciously and of their malice aforethought counsel, procure and abet the aforesaid Stella Griffin to commit the aforesaid offence and felony at the time and in the manner and form as aforesaid.”

The indictment is fatally defective. The statement that the accused feloniously and wilfully, and of her malice aforethought, did kill and murder, without inserting the name of the one murdered, does not amount to a charge of which the court can take cognizance.

The name of the person upon whom it is charged an assault was committed is mentioned, but no mention is made of the name of the person alleged to have been murdered. It is not sacramental that the name of the deceased shall follow the word “murder,” but it is essential that pronouns be used, if the name is not repeated, to make it appear certain who has been murdered. The failure to insert the name, or to make it appear by sufficient averment who was murdered, is not a mere defect of form. Whenever the name of the one killed is known it is absolutely necessary to insert it, otherwise it is a ground for a motion in arrest of judgment. If the accused committed an assault upon the deceased, it does not follow that she was the one by whom he was murdered. She may have committed the assault, but he may have been murdered by another. To support an indictment for murder, the prosecution must prove that the prisoner killed the deceased. After sentence and judgment it must appear that the name of the deceased is stated in the indictment.

“An indictment must either state the name of the one killed, or that he was unknown to the jurors. ” Russell on Crimes, Vol. 1, p. 555.

We would not feel justified in affirming the judgment of the court. The cause must be remanded for a new trial.

It is therefore ordered, adjudged and decreed that the sentence and judgment of the court a qua be reversed, the verdict set aside, the indictment annulled and the case remanded for legal proceedings against defendants. They are remanded in custody subject to thé orders of the District Oourt of the parish of Jackson.


text:
    No. 12,235.
    State of Louisiana ex rel. Wm. Anglade vs. Judge of the Second City Court.
    The relator, a debtor, against whom a judgment for money had been rendered, had a hey of an iron safe in his possession containing property, the judgment creditor had pointed out for seizure. The former was ordered to produce the Key and open the safe. After he had refused to comply with the order he was committed to jail for contempt.
    Held — There was a method for enforcing the writ of fi.fa. (0. P. 762) other than by process for contempt.
    The order committing relator to prison for contempt is declared void.
    QN APPLICATION for a Writ of Certiorari.

      Sambola & Diteros for Relator.

      Conrad O. Collins for Respondent.
    Submitted on briefs November 2, 1896.
    Opinion banded down November 16, 1896.
   The opinion of the court was delivered by

Breaux, J.

A fl. fa. was issued on a judgment obtained against the relator.

The defendant in the present]proeeeding for writs of certiorari, appeared before the acting judge and made an affidavit in which he swore that to enable the constable to seize the property of the relator, an order of court should issue to compel him to open an iron safe which contained relator’s property. The order applied for was issued. The constable’s return upon the order shows that the relator refused to obey the order.

Auguste Anglade, the judgment creditor, sued out a rule against his debtor, against whom he had obtained a judgment.

The rule was made absolute and the debtor, who is the relator here, was committed to prison for contempt.

The relator herein alleging that it was not possible under the law to compel him, quasi servum, to render personal aid to the executive officer of the court, applied to this court for writ of certiorari, and prayed to be set at liberty and to have the proceedings annulled and avoided. The order nisi issued upon relator’s petition, directed the release of the relator from custody, fixed a time for hearing the application for the writ on the merits, and reserved to the plaintiff (in the court below who is defendant and respondent here) the right to have the chest in question opened, or to cause it to be opened by the constable, and to make a seizure of any of the defendant’s property therein contained.

There are two interests to protect. Those of the creditor, who seeks to recover the amount for which he has obtained a judgment, and, on the other hand, those of the debtor, who can not be forced to the performance of acts not covered by the terms of the judgment.

The judgment was for money. The rights of the parties were determined by the decree. This covered all legal steps essential to seize and sell the property of the debtor.

But after a valid levy under an execution on the judgment (or in order to effect a valid seizure), the judgment creditor has no right to coerce the judgment debtor to produce keys and open iron safes, particularly when a valid seizure can be made without issuing process for contempt.

It was suggested in argument at the bar on behalf of the respondent that there are two modes of executing under a ft. fa. One by causing the sheriff or constable to break open the doors of the safe as authorized by Art. 762, C. P., and the other by the form of a rule for contempt as in the ease here.

The former has the expressed sanction of law, while no authority that we have found sustains the latter.

The respondent has not supported his position on this point by reference to any authority applying.

We translate tbe following as supporting the view that the seized debtor can not be commanded to open the doors and iron safes.

Coercion is only legal when sanctioned by legislative will. Bonnier Elements de Procedure, p. 114.

Reasoning a moment by analogy :

Art. 1926 of the Louisiana Civil Code and Art. 1142 of the French Oode are similar.

Interpreting this article, the French authorities have repeatedly decided that the action was for damages, in cases of an obligor’s failure to comply with his obligation to do or not to do,” and that no process should issue to compel performance by coercion (par con - trainte de corps).

This court upon this point has reached the same conclusion. Levine vs. Michel, 35 An. 1121; Laroussini vs. Werlein, 48 An. 14-16.

In State ex rel. Hero, 36 An. 352, this court said: “It appears, that our law does not authorize the enforcement of final judgments, much less of ex parte orders, directing the delivery of property, by process for contempt.”

There is nothing in the judgment, being one for money, or, in the articles of the Code of Practice which will justify us in holding that-the debtor must be held to the specific performance of anything.

Finally, the respondent urges that this application should be dismissed for the reason that á writ will not issue when there was remedy by appeal.

If the' judgment sought to be enforced was taken by. the defendant and respondent as the basis to determine the right of appeal, it had become final and executory. The possibility of taking a devolutive appeal would have answered no valuable purpose and would only have resulted in disappointment.

In such a case the rule of practice referred to relative to remedy by appeal instead of certiorari does not apply.

But, if the order of commitment alone is the basis, as we think it is not appealable, there being no amount involved. Again, this court has decided in regard to jurisdiction if “ the order committing relator to prison for contempt was one which the judge was without authority to make, and therefore null and void, he is entitled to relief by certiorari. Citing State ex rel. Liversey vs. Judge, 34 An. 741.

In the present case we hold that the order committing relator to prison was not supported by authority, and therefore certiorari offered a relief within our jurisdiction.

It is ordered, adjudged and decreed that the orders nisi be made absolute, and the order committing relator to prison for contempt, be declared void, and be set aside.


text:
    No. 12,229.
    State ex rel. Yazoo & Mississippi Valley Railroad Company vs. James A. Montegudo, Justice of the Peace for the Fourth Ward of the Parish of East Baton Rouge.
    A citation addressed to tlie president of a railroad corporation is an absolute nullity, and a binding and valid judgment can not be founded thereon. It should have been directed to the railroad company.
    QN APPLICATION for Writs of Certiorari and Prohibition.,

      Farrar, Lealce & Lemle and. Thomas J. Kernan for Relator.
    Respondent in propria persona.

    Submitted on briefs November 2, 1896.
    Opinion handed down November 16, 1896.
   Opinion of the court was delivered by

Watkins, J.

The grounds on which relator seeks relief by certiorari are that the respondent rendered against it an absolutely null and void judgment for the non-appealable sum of twenty dollars in an action for damages, at the suit of Oharles F. Ratcliff for the killing of cattle, said judgment being null because same was rendered without a legal citation upon (the relator) as required by law, and without the cause having been fixed for trial.

The petition does not specify in what respect the citation is informal or illegal; and the transcript of the cause in respondent’s court-shows that the judgment was rendered on default, subsequent to the service of citation, and after the case was set for trial. It also shows-that notice of judgment was given prior to -the issuance of execution.

But the citation was issued in the aforesaid suit, entitled Ohas. F. Ratcliff vs. Yazoo & Mississippi Valley Railroad Company, pending-in the respondent’s court, and is addressed to Stuyvesant Fish, President of Yazoo & Mississippi Valley Railroad Company, and was served “ on the Yazoo & Mississippi Valley Railroad Company, defendant herein, by leaving the same at its office, corner of Howard avenue and South Rampart streets, in the hands of M. R. Spellman,. its general agent in this city, the president and other officers being absent from the city,” etc.

Counsel for relator states the law of his case to be that citation upon which the judgment was based was absolutely null and void, because same was addressed to the president of the company, and •not to the defendant itself.

We make the following extract from counsel’s brief viz.:

“ Upon the first point it is only necessary to refer to Arts. 1077 and 179, Code of Practice, and to the case of Jacobs vs. Frere, 28 An. 625. where the court (p. 626) say: The judgment is null for want of citation. The Code expressly says that citation must be directed to the defendant * * * Admit that Olivier was Euselier’s attorney in fact, still, when Fuselier is sued, the citation must be directed to him and not to his agent.’ ”

We have examined and verified the correctness of the quotation and, as a consequence, must hold the judgment pronounced by the respondent to be an absolute nullity for want of a legal citation.

But this will not result in the dismissal of the suit of Ratcliff against the railroad company, but merely its continuance for proper citation, and service. And we will accordingly annul the respondent’s judgment reserving his right to continue the aforesaid cause in keeping with direction given in our preliminary order, viz.:

Without prejudice to plaintiff’s right to proceed to judgment and execution on a proper citation.”

It is therefore ordered and decreed that,'the judgment pronounced by the respondent in the case of Oharles E. Ratcliff vs. Yazoo & Mississippi Valley Railroad Company, and herein complained of, be and the same is hereby declared absolutely null and void on the ground that the citation upon which it was based is illegal, not having been directed to the defendant; but without prejudice to plaintiff’s right to proceed to judgment and execution on a proper citation — costs to be paid by the respondent.


text:
    No. 12,220.
    State of Louisiana vs. Tom Scott, Jr.

      Contradictory Statements. — ~A witness having testified that the accused was about to return the property to the owner; in order to answer the charge brought <against the accused, by proving that he did not intend to steal -the property.

      The circumstances oí the alleg-ecj prior statement was first placed before the witness, with sufficient clearness, to identify the occasion referred to.

      Held: that for the purpose of throwing discredit on the testimony of the witness, the Question of the prosecuting officer was proper to show that she had on a former occasion made statements inconsistent with the evidence she had given.
    APPEAL from the Second Judicial District Court for the Parish of Bienville. Watkins, J.

      M. J. Cunningham, Attorney General, and A. J. Murff, District Attorney, for Plaintiff, Appellee.

      J. C. Theus for Defendant, Appellant.
    Submitted on briefs Novembe 7, 1896.
    Opinion handed down November 16, 1896.
   The opinion of the court was delivered by

Breaux, J.

Convicted of horse stealing the defendant appeals from the sentence and judgment of the court.

The grounds upon which the appeal is based is set forth in the transcript before us.

The mother of the accused was one of \his witnesses. She testified on direct examination that her son, the defendant, was preparing to send the horse back to the owner.

For the purpose of laying the foundation for impeaching her testimony, the District Attorney cross- examined her as to the time, place and person by whom he expected to prove the inconsistency of her statement. The following was the question propounded by him: “ Did you not tell J. B. Perry on Mr. Gilbert’s gallery on the evening he found the horse, that your son was going to leave the country that night with the horse?”

She answered: “No.”

In due time Mr. Perry was called to contradict and impeach the witness.

To the ruling of the court admitting the testimony'of this witness, in answer to the question propounded, as before stated, the accused reserved a bill of exception. . ,.

The ground of objection is that the statement of the mother of the accused was hot contradicted by the testimony of the witness Perry. But the fact is, that there was direct conflict between the two statements. The two accounts were substantially inconsistent. The first account of the mother as a witness haying been admitted to prove the innocence of the accused, proof of her second statement contradicting the first, was relevant for the purpose for which it was offered, that is, to impeach her testimony.

The propriety of the mode of impeachment followed in this case is sustained by a number of decisions.

With the view of impairing the credibility of a witness, facts may be proved which would not be admissible, if directly offered to prove the guilt of the accused. The issue here relates to the veracity of the witness. Rice on Evidence, Vol. 111, p. 368.

The principle is clearly expressed in a number of decisions, that no witness can be asked on cross-examination any question not relevant to the issue, simply with a view to discredit by other evidence establishing the untruth of his answer. But it is not the case here; the question was propounded to the witness on the examination in chief, with the view of proving that the accused had not stolen the property. It was therefore permissible to show that the witness had not sworn truthfully in answer to the question propounded.

Evidence not admissible in the first instance may become so in matters subsequent.

The relation in which the .witness stands to the accused must be considered.

The whole matter is largely ¡'within the discretion of the court. Best on Evidence, p. 633.

Judgment affirmed.


text:
    No. 12,217.
    State ex rel. Thomas B. Singreen vs. R. H. Downing, Judge of the Fourth City Court of New Orleans.
    It appearing that an affidavit for the granting of a writ of provisional seizure is wanting the signature of the officer before whom it was made, same will not be treated as null and void, if it be immediately succeeded by an order for the issuance of the writ which is signed by the judge. For in thus granting the order the judge manifestly acted upon the faith of the proper oath having been administered.

      Ii subsequent to the filing of a motion to dissolve the writ the judge should cause the blank space in the jurat to be filled out, nunc pro tnno, it would have the effect of merely causing the record to conform to the truth, the plaintiff having been actually and really sworn to the affidavit in the first instance, and the name not appearing as having been thereto signed.
    APPLICaTION for Writs of Certiorari and Prohibition.

      Louis P. Paquet for Relator.

      Ernest T. Floranoe and Joseph E. Walton for Respondent.
    Submitted on briefs June 27, 1896.
    Opinion banded down June 30, 1896.
   The opinion of the court was delivered by

Watkins, J.

The relator complains that in the suit entitled Henry Meyer vs. T. B. Singreen, No. 15,082, depending in respondent’s court, he filed an exception and motion, through his counsel, to dissolve the plaintiff’s writ of provisional seizure in said suit issued for rent, mainly on the ground that the signature of the respondent had not been affixed to the affidavit plaintiff had made for the issuance of the writ; and that after the said exception had been filed, thus attracting his attention thereto, the respondent illegally and wrongfully affixed his signature thereto as notary public to perfect and complete the record, and thus defeat his exception and motion to dissolve.

And his contention is that the action of the respondent in this particular was illegal and unwarranted, and entitles him to relief by means of our writ of certiorari.

Per contra, the contention of the respondent is that in the matter of said suit referred to, he administered to the plaintiff, Meyer, the necessary oath, and caused him to affix his signature to the act and jurat in his presence, and caused the seal of his court to be thereto attached. That being at the time, busily occupied with various matters, he accidentally and inadvertently failed and omitted to affix Ms signature thereto; that when his attention was attracted to this omission by the filing of defendant (relator’s) exception, he proceeded at once to make the necessary correction by appending his signature as notai’y public to the affidavit nuno pro tuno, so as to make samé conform to the facts, and that the truth might appear, viz.: that the affidavit had been sworn to by the plaintiff Meyer in his presence.

His contention is, that he was legally and fully empowered so to do, and that relator’s charges are wholly grounless.

In Lewis vs. Daniels, 23 An. 170, our predecessors held th at the non-appearance of the judge’s signature to the jurat in obtaining a writ of injunction was a mere accidental omission, and that the signing by the judge of the order granting the injunction, which made special reference to the petition and affidavit, was one continuous act, and that the judge acted on the affidavit as having been made before him.

In English vs. Wall, 12 Rob. 132, it was held that the signature of the judge not appearing to have been signed to an affidavit for a writ of attachment, the order granting the writ having recited that the judge had read the petition and affidavit which immediately preceded the order, on the same paper, and the judge’s signature having been affixed to said order, the attachment should be maintained.

In this court it appears that the respondent signed the order for the issuance of the writ of provisional seizure, immediately below the unsigned affidavit, as was the case in the instances above cited.

We are of opinion that these cases are strictly applicable, and applying same to the instant case, we must conclude that the affidavit complained of was good and valid in law, and hence the act relator complains of as illegal was but the placing of his signature nuno pro tunc to an affidavit which was actually and really valid without it.

It is therefore ordered and decreed that the preliminary writ herein granted be set aside, and the relief prayed for by the relator be refused at his cost.


author: WATKINS, J.

text:
    No. 12,172.
    B. Lowenstein & Bros. vs. Joe D. Glass et al.
    The plaintiffs having, in ajprevious suit, judicially affirmed the legality and validity of a sale of goods to the defendant, for the purpose of obtaining a judgment against him for the price, and sustaining an attachment against the. goods as his property, can not be heard, in a subsequent suit against the same defendant, to deny the existence of such a sale, on the ground of fraud and deception on the part of defendant, as vendee, for the purpose of defeating the prior and ranking attachments of other creditors, and recovering the goods themselves, notwithstanding the former suit has been in the meanwhile withdrawn.
    In such case, the prior attaching creditors can successfully urge the former judicial admissions as an estoppel against the second suit.
    APPEAL from the First Judicial District Court for the Parish of Caddo. Land, J.

      J. Henry Shepherd for Plaintiffs, Appellees.

      Leonard & Randolph, T. F. Bell and F. G. Thatcher for S. Levy, Jr., one of Defendants, Appellants.
    Argued and submitted June 4, 1896.
    Opinion handed down June 30, 1896.
    Rehearing refused November 30, 1896.
   The opinion of the court was delivered by

WATKINS, J.

This is a revocatory action for the annulment of a sale of goods and merchandise by the plaintiffs to the principal defendant, J. D. Glass, charging fraud, and for a decree annulling a sheriff’s sale of the goods against certain attaching creditors of Glass to the extent that same had been identified prior to sale, with due notice to the said creditors.

The defence is a general denial coupled with a plea of estoppel, to the effect that the plaintiffs had first attached the goods now claimed,as the property of Glass, claiming the price, and can not be, subsequently, heard to assert the nullity of the sale of the goods ab initio and demand their restitution.

The plea of estoppel was overruled and a verdict of the jury rendered in favor of the plaintiff for goods identified of the value of fifteen hundred and ninety dollars and sixty cents, and from a judgment thereon based the defendant has appealed and the plaintiff has filed an answer to the appeal, and demanded that the judgment be increased to the sum of seventeen hundred and fifty dollars as the price for which the goods were originally sold.

Considering the transaction with reference co the plea of estoppel the facts of the case appear to be that plaintiffs made a sale of goods to Glass, the principal defendant, in Memphis, Tenn., where their business domicile is situated, on the 16 of August, 1894; the sale being for the stipulated price of five thousand seven hundred and fifty dollars, to be paid on four months’ time, or at an earlier date in consideration of discount being made.

Before the time for payment had arrived the entire stock of merchandise of Glass in the city of Shreveport, La., where his business establishment was situated, was attached by several of his creditors residing in Shreveport, the amount of their claims aggregating some twenty thousand dollars, and that being more than the value of his property.

Immediately afterward plaintiffs filed an ordinary suit against Glass upon their open account, representing the purchase price of the goods they had previously sold him, and praying for an attachment, caused the whole of his property to be seized, including the remaining goods of the lot they had let him have, and which remnant eonstitu' ed part of his general stock of merchandise.

A few days later the plaintiffs voluntarily entered a non-suit, and caused their attachment to be released; and thereupon they instituted the present revocatory action against their former defendant and alleged debtor, Glass, and made the prior attaching creditors of Glass co-defendants, claiming to have identified and set apart from the general stock of merchandize which had been seized, about seventeen hundred dollars’ worth of the goods which Glass had •obtained from them.

The grounds on which the present suit is brought against Glass are that he obtained these goods in fraud, under wilfully false representations, and under false pretences.

That he made false representations to them with respect to his solvency and financial standing; and that amongst other things he made to them the statement that he had on hand a stock of goods worth twenty thousand dollars; that he discounted all his bills before they became due, and that he owed no debts he could not easily and conveniently pay.

That he bought no other goods upon terms of credit, and owned a sufficient amount of unencumbered real estate to satisfy all of his bills.

The plaintiffs allege, substantially, that theyaoeepted Glass’ statement as true, and made the sale and delivery to him of over five thousand dollars’ worth of goods on the faith of same; whereas, in truth and fact those statements were absolutely untrue, and resorted to by Glass for the deliberate purpose of deceiving and defrauding them, having neither ability nor intention to pay for same, at the time.

But conceding these statements were correct and susceptible of proof, the plaintiffs are confronted with their solemn judicial admissions, made under oath in a previous suit against Glass, in which they affirmed, under oath, that he was indebted to them for the price of the goods which they had sold him, and demanded a judgment therefor; and they caused a writ of attachment to issue and a seizure thereunder to be made of the very property, amongst others, they now claim they never sold. These judicial averments and proceedings are now urged by the two attaching creditors of Glass, whose seizures primed and ranked those of the plaintiffs in said attachment suit, and who are made defendants in this suit, for the purpose of wresting said goods from their seizure and control.

Certainly these defendants have an interest in urging the estoppel of those judicial proceedings, as a means of protecting themselves from personal liability for the value of the goods claimed in this, as well as against their demand for their restitution in kind.

Plaintiffs are in the attitude of having, in the former suit, judicially affirmed the legality and validity of the sale of their goods to Glass, for the purpose of obtaining a judgment against him for the price, and sustaining their attachment against the goods as his property, and of asserting in this suit that the pretended sale of goods to Glass was a sham and a fraud on his part, and an absolute nullity as to them.

In treating of the election of remedies it is said in the American and English Encyclopedia of Law, that “ an election is binding on the party making it, and he can not afterward pursue an inconsistent remedy, though full recovery was not had in the first action,” etc. Vol. 6, p. 250, No. 4.

And under that heading the author cites the following cases, viz.: Buckley vs. Morgan, 46 Conn. 394; Bailey vs. Herocy, 185 Mass. 172; Maller vs. Tuska, 87 N. Y. 166; Rodermund vs. Clark, 46 N. Y. 354; Dibble vs. Sheldon, 10 Blatchf. 178.

In Neild vs. Burton, 49 Michigan, 53, it was held that an election if binding, though the court had not jurisdiction of the cause of action.

In Butler vs. Hildreth, 5 Metcalf, 49, Chief Justice Shaw, speaking for the Massachusetts court, said:

Then the question is, whether the plaintiff has waived his right to so avoid the sale, reclaim the goods and maintain an action in trover on the refusal of the defendant to deliver them, by the fact that, before he commenced this action he commenced an action against the defendant, on the notes given for the goods, made the usual affidavit that the notes were due, and caused property to be attached to secure the payment of them. The action on the notes was commenced February 3, 1841, but was never entered; (and) the present action was commenced March 28, 1841. Upon this case the jury were instructed that if the plaintiff, at the time he sued on the notes, knew all the facts, as he did afterward when he commenced this action of trover, tending to show that the sale was fraudulent and void, it was to be considered in law as a ratification of the sale, .and that in such case this action could not be maintained.”

The opinion of the court on this statement of fact declares:

“The assignee has an election, not of remedies merely, but of rights, but an assertion of one is, necessarily, a renunciation of the other. This results from the plain and very obvious consideration that the assignee can not affirm the sale in part and disaffirm it in part; if it is to stand as a valid sale, the property of the goods remains vested in the purchaser, and he remains liable for the price. But if the sale is avoided and set aside, it stands as if never made; the property may be taken possession of by the representatives of the creditors as if no sale had been made, and the purchaser ceases to be liable for the price. When, therefore, the assignee has made that election, is he receives or demands the price, it is equivalent to an express declaration that he does not impeach the sale, and has no cla'm to the goods,” etc.

Then the court, addressing its opinion to the question immediately before it, said:

“ But we think that if the assignee commences an action against the purchaser for the price, and causes his property to be attached to secure it, this is a significant act, an unequivocal assertion that he does not impeach the sale, but by necessary implication affirms it. .It is an act, too, deeply affecting the rights of the purchaser, whilst it is an assertion of his own; and, if done with a knowledge of all the facts which ought to influence him in his election, it is conclusive. ’ ’

Quite a similar doctrine is announced in Cray vs. St. John, 35 Illinois, 222, in which the court in disposing of a similar question employ this language, viz.:

“ The appellant, as sheriff, so far represented the attaching creditors as to enable him to assert their rights in the suits they had commenced. * * *
“ The creditors had their election to disaffirm the sales made by them on the ground of fraud, and invest themselves with the rights, and entitle themselves to the remedies the law affords in such cases; or they might affirm the sales and have the rights and remedies of .other creditors.
The commencement of the attachment suits was, at least, a prima facie affirmance of the sales and is a waiver of the fraud, and all rights resulting from it.”

These decisions appear to be appropriate and authoritative, and we adopt their reasoning as conclusive in this case.

There is no averment in the plaintiffs’ petition, to the effect that they had just made the discovery of the fraud, on the proof of which they relied for recovery, immediately previous to the filing of this suit; nsr does it contain any disavowal of their full knowledge of the same, at the time they filed their attachment suit, which is grounded on a distinct charge of fraud. Hence it is plain that they are bound by the election of the remedy by attachment, and it must be regarded as a prima facie affirmance of the sale of the goods to Glass which estops and precludes their disaffirmance of same in the present suit.

Our conclusion is, that the plea of estoppel, urged by the attaching creditors whose seizures primed that of the plaintiffs, and who are made parties bo this suit, should have been sustained and the plaintiffs’ suit dismissed.

It is therefore ordered and decreed that the judgment appealed from be avoided and reversed; and it is further ordered and decreed that plaintiffs’ demands be rejected at their cost in both courts.


text:
    No. 12,209
    In the Matter of the Louisiana Savings Bank and Safe Deposit Company, in Liquidation.
    On the trial of a rule taken to test title on the ground that same depends upon an act of donation inter vivos which is subject to revocation by forced heirs, it should be made to appear from the pleadings that there are heirs in esse or in posse whose legitime would be affected; otherwise there would be no such real and substantial issue as this court could conclude by its decree.
    PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      W. S. Benedict for Commissioner of Bank, Plaintiff in Rule, Appellee.

      Benjamin Ory for Defendants in Rule, Appellants.
    Argued and submitted November 7, 1896.
    Opinion handed down November 16, 1896.
   The opinion of the court was delivered by

Watkins, J.

This controversy is raised on a rule taken by Solomon Reinach and Santo Oteri, as adjudícateos at public auction of the property in controversy to test the validity of the titles thereto.

It was tried in the lower court upon an agreed statement of facts, and on the trial there was judgment in favor of the bank commissioners condemning the plaintiffs in rule to accept title and complete-the adjudication by paying the purchase price.

We make the following extract from the brief of the bank commissioners, viz.:

“ By agreement of counsel in transcript it is admitted:
“ 1. It was admitted in open court on the trial of said rule, and is now admitted as a fact, that the title and possession of plaintiff in rule has been tendered to said defendants in rule in the property involved in said rule for the price therein named, and on the terms and conditions set forth in the order of sale directed to plaintiffs in rule by the court herein, as to all rights in the property in plaintiff in rule by the conveyances and chain of title dating from the acquisition of the said Warner Van Norden from John W. Bailey under title by notarial act, and possession duly registered in the conveyance office, dated the 9th of November, 1868.
“ 2. That the issue submitted to the lower court, and now appealed to the Supreme Court for determination, is based upon the title and possession obtained by said John W. Bailey under deeds to him hereinafter referred to, and to be copied into the transcript ef appeal.
“ Your Honors thus find that the issue is very narrow.
“It is admitted that all sales and conveyances from the 9th of November, 1868, a period of nearly twenty-eight years, and free possession during that period of time in the bank, and its authors of title, were properly registered, and are correct in law and fact.
“ It is denied that the title acquired on the 9th of November, 1868, from-John W. Bailey, who had acquired under two different deeds, the one of 10th November, 1845, and the other of the 25th of February, 1859, are titles good in law, but are subject to the right of revocation by the forced heirs of the donors in said acts.
“ Let us refer to those deeds.
“The first is found on pages 19 to 25, and recites that the deed was executed in the city and State of New York by the co-heirs o John Q. Bailey to their other co-heir of John Q. Bailey, namely’ John W. Bailey. It is in the form of a common law deed, and recites the consideration to be natural love and affection, and the sum of ten dollars in hand paid, and for which they give and grant a quitclaim to their brother and co-heir, of their rights in the property, inherited from the said John Q,. Bailey.
“The next deed is likewise made at common law in New York City, under date of the 25th of January, 1859, and that purports to be a deed of sale from the children of John W. Bailey, of their rights of inheritance from their mother, his deceased wife, in and to the property which had been acquired theretofore, on the 10th of November, 1845, during the marriage existing between the father and mother. The consideration named is one dollar, cash, and other considerations not named.
“ These deeds are of frequent occurrence in our Sfate, but more frequently arise in the other States of the Union. They can not be assailed there as to legality, nor here as to legality of form, the latter not being objected to.
“ Counsel for defendant in rule and appellant contend that the consideration as stated does not constitute a consideration under the laws of the State to divest title of the co-heirs of John W. Bailey in and to the succession of John Q,. Bailey in 1845, and therefore their rights not having been taken away, any children that might have been born of them since that time have inherited such rights. In like manner that the rights of the children of John W. Bailey, in his wife’s, their mother’s estate, likewise exist for like reason. We are at a loss to find upon what authority the pretensions of the defendant in rule are based.”

We have included with the statement of facts an explanatory statement of counsel so as to give, as we conceive, an accurate view of the situation.

The question is made to turn upon the validity of a deed derived from John W. Bailey made in 1868; and it is alleged to depend upon two prior deeds executed in the city and State of New York— the contention on the part of plaintiffs in rule being that same are donations, while that of the bank commissioner is that they are common law deeds evidencing sales of the property.

The claim and pretension of the plaintiffs in rule, predicted upon the theory that said instruments are donations inter vivos in the estimation of our law, are that they are subject to revocation by the forced heirs of Bailey and the donors in said acts, and that the title by adjudication at public auction is questionable, and that they can not be compelled to accept it.

Accepting the theory of the counsel for the plaintiffs in rule as the correct one — but which we regard as open to very serious question— the fatal defect, apparent upon the face of the proceedings, is that there is no suggestion of their being in esse or in posse any forced heirs in whose favor such right of revocation exists or is likely to arise. Consequently we can not regard this case as presenting such a real, substantial issue as this court is called upon to decide. Gui bono. Our judgment would not free the title of any latent ambiguities or defects nor bind and conclude possible heirs.

We must decline to pass upon the issue tendered.

Judgment affirmed.


text:
    No. 12,204.
    Josephine Wolf vs. Mrs. Sallie S. Stewart.
    In an action for damages the plaintiff was absolutely without a right of action for' exemplary damages on the grounds stated.
    As to the demand remaining the Supreme Court was without jurisdiction, ration# m aterida.

    APPEAL from the Oivil District Court for the Parish of Orleans^ Ellis, J.

      Louis P. Paquet for Plaintiff, Appellant.

      Henry P. Dart and Benjamin W. Kernan for Defendant, Appellee.-
    Argued submitted November 4, 1896.
    Opinion handed down November 16, 1696.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff is appellant from a judgment dismissing her suit on defendant’s exception of no cause of action.

The plaintiff was formerly the owner of both properties, that now owned by defendant and that of which she retains the possession.

When plaintiff was the owner of both lots she erected a wood fence, eight feet high on the boundary line of the properties. Subsequently she sold one of the properties to the defendant.

In the act of sale no reference is made to the fence.

The defendant, It is averred by the plaintiff, has illegally and without any right, added eight feet to the height of the fence, and she-further avers that she has thereby suffered damages, for which she sues. The claim for damages, the plaintiff alleges, consists of seventy-five dollars, arising from the additional height to the fence, and two-hundred and fifty dellars for repairs she had to make because of the alleged damage caused by this fence.

She, in addition, alleges the mental anguish occasioned h$y the additional height of the fence, for which she claims two thousand dollars “vindictive, exemplary and punitory damages.”

The plaintiff, in reference to the first fence (eight feet high, on thu boundary line, on the date she sold the adjacent lot to the defendant) alleges that it “ answered all the purposes of a division fence.”

On appeal before this court the defendant has interposed the plea of want of jurisdiction ratione mátense-, and alleged that plaintiff’s claim is purposely fictitious, with tbe object of creating aprima facie jurisdiction.

This allegation is principally directed against plaintiff’s claim for two thousand dollars, at which she has chosen to fix the amount of her damages for alleged mental anguish arising from the asserted “illegal, malicious and tortious conduct and act of defendant in erecting said additional fence and refusing to remove same, notwithstanding amicable demand and request.”

It is manifest that under no circumstances can plaintiff recover that amount (two thousand dollars) on the allegations of the petition. The act alleged was not such as to cause mental anguish for which damages, can be allowed. Adding height to a fence and the refusal to remove it, under the condition of things alleged, is not actionable, in so far as relates to the amount last stated. No aggravating conduct or act is alleged. The plaintiff by her allegation in this suit has limited her claim to actual damages.

As relates to the two thousand dollars claimed for mental anguish, the judgment of the District Oourt sustaining the exception was, in our opinion, correct. We have found no ground and can conceive no reason upon which plaintiff can possibly base a claim for any part of that amount.

In matter of raising the height of the fence, no insult, malice or indignity of any kind is alleged against the defendant.

Mental distress, in itself, is not one of the consequences arising from the raising of a fence on a division line.

The facts alleged in the petition must be taken as true, provided they are, in themselves possible. Their legal consequence is presumed to be denied.

In addition, the limited amount of actual damages claimed (less than three hundred and fifty dollars) gives rise to only one conclusion, that no amount can be due for mental anguish.

This brings us to the question of the jurisdiction of this court.

We do not think that the allegations as to the two thousand dollars in question are any more effectual and substantial in matter of jurisdiction than they are in matter of the exception of no cause of action.

It is urged in behalf of the defendant in exception, plaintiff in the suit, that the motion to dismiss was filed after three days, and in consequence it was not in time.

Upon the ground of want of jurisdiction ratione materise it was not too late; without the motion it would devolve upon us to dismiss the appeal ex proprio motu and to leave the remaining issues to be considered by another tribunal having jurisdiction over the true amount involved and presenting serious ground for consideration. The amount in dispute is surely less than two thousand dollars.

Having decided, for the reasons stated, that plaintiff has no right of action for exemplary damages, we can not consistently assume jurisdiction, and decide questions touching the lesser amounts claimed.

The large claim is unreal; the true matter in dispute was below our constitutional jurisdiction.

Poree vs. Valische, 15 An. 292.

The appeal is therefore dismissed at appellant’s costs.