text:
    No. 4878.
    Boston Belting Company vs. E. M. Ivens & Co.
    The record shows that the rule taken hy defendants on plaintiffs to release certain articles seized and appealed from by said plaintiffs was served on the counsel of record, they being residents of Boston. This service is sufficient.
    After a careful examination of article 644, C. P., and article 1992, B. C. C„ it is impossible to conclude that exemption from seizure of certain objects or tools for the exercise of a trade or.profession can be made to apply to the multifarious machinery and implements constituting an extensive factory and requiring the attendance and skill of a large number of operatives, such as the establishment of the defendants seems to be from the number and character of the articles in the list on record. To apply this provision of the law to this ease would neutralize or paralyze article 3183, R. C. G., which declares that “ the property of the debtor is the common pledge of his creditors,” and would make his property subject to the payment of his debts exceptional. Exemption laws should not be extended beyond their dear intendment; such laws, being exceptional, should be strictly construed.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Samuel P. Blanc and H. JS. Tipton, for plaintiffs and appellants.

      Lacey & Bailer, for defendants and appellees.
   Howell, J.

The plaintiffs, having caused execution to issue, seized and advertised for sale all the movable property in the premises of defendants, known as Ivens’ Iron Works, when the defendants took a rule to release certain articles, as the tools and instruments necessary for the exercise of their trade as foundrymen and machinists, and exempt from seizure under a fieri facias. The rule was made absolute, and plaintiffs appealed.

Their counsel contends that notice of the rule was not given, and the judgment is therefore null. The record shows that the rule was served on the counsel of record, and it seems that plaintiffs are non-residents. We think this service sufficient.

The following are the articles which are claimed to be exempt as tools and instruments of trade, to wit: Three cupola ladles, small and large; three anvils; one lot of blacksmith’s tools; two bellows; three patent patterns; one iron straightener; one pair of scales; one lot of flasks; two gas-pipe cutters; two screw-cutters; four lathes; three drill-presses; one large grindstone; one milling machine; one shaping machine; one slatting machine; three planing .machines; five lathes; one horizontal boring machine; one vertical boring machine; one lot of patterns; one tenon-saw; one wood-plane; one cut-off saw; one tenon machine'; one little rip-saw; one lot of large patterns; one. wood-turning lathe; one lot of jjatterns; one gig-saw; one blower; one cupola; one small kettle; one chore trunk; one lot of flasks; ten iron flasks; four trunks; two engines for driving the works.

E. M. Ivens, as a witness, says he, defendant, can’t dispense with one” of said articles in the exercise of their trade and profession as foundry-men and machinists; they are the necessary implements and tools of the trade by which they gain their living. Two other witnesses swear that they are familiar with the subject, and that they recognize the articles above mentioned as necessary to the carrying on of the business of foun-drymen and machinists.

Counsel for defendants rely, in support of their motion, on article 644 of the Code of Practice and several decisions. The article reads:

“ The sheriff can not seize the linen and clothes belonging to the debtor or his wife, nor his bed, nor those of his family, nor his arms and military accoutrements, nor the tools and instruments necessary for the exercise of the trade or profession by which' he gains a living; nor shall he, in any case, seize the rights of personal servitude of use and habitation, of usufruct to the estate of a minor child, or the income of dotal property.”

Of the five cases cited, two (2 R. 81, and 13 An. 260), contain only obiter dicta on this point. Of the others, in that of Farmers and Merchants’ Bank of Memphis vs. Franklin et al., 1 An. 393, the commercial books, the counting-house furniture, and two iron chests in which the books and papers were kept, were all held to be exempt from seizure under a fieri facias. In Duperron vs. Communy, 6 An. 789, the surgical instruments of a dentist were held exempt. In Prather vs. Bobo, 15 An. 524, a printing-press and materials were exempted on the ground that they were the implements of the trade the plaintiff therein carried on “ with his manual labor, and necessary to sustain himself and family.”

In the first and third of these cases a very liberal application of the law is made; yet the underlying principle or object, we think, is the securing to the debtor the means of laboring at his trade and profession, the tools and instruments required by him in-his own manual labor. This, we think, pervades nearly every decision, and conforms to the definition in Bouvier’s Dictionary, verbo, tools, to wit: “ Those implements which are commonly used by the hand of one man. in some manual labor necessary for his subsistence.” It is added: “ The apparatus of a printing-office, such as types, presses, etc., are not therefore included under the term tools.” In support of which several authorities are cited.

A careful examination and analysis of article 644, C. P., will present the same feature — the linen and clothes of the debtor or his wife, his bed and those of his family, his arms and military accoutrements, the tools and instruments necessary for the exercise of the trade or profession by which he gains a living, articles which the debtor himself needs and uses, and the clothing and bedding of himself and his family. The idea seems to be that the individual, personal exertion of the debtor shall be permitted and protected. The last clause of the article embraces rights which, by article 1992, R. O. O., aré declared “merely personal that can not be made liable to the payment of debts.”

We can not think the exemption was intended to apply to the multifarious machinery and implements constituting an extensive factory requiring the attendance and skill of a large number of operatives, such as the establishment of the defendants seems to be from the number and character of the articles in the above list. To apply this provision of the law to this case would, in our opinion, neutralize or paralyze article 3183 of the Revised Civil Code, which declares that “ the property of the debtor is the common pledge of his creditors,” and would make his property subject to the payment of his debts exceptional.

Under the principle announced in the article last cited, it seems to us exemption laws should not be extended beyond their clear intendment. We have heretofore had occasion to say that such laws being exceptional should be strictly construed, and we think the exemption claimed should not be applied to the articles seized in this case. They are manifestly such as require the services and management of a number of persons besides the debtors to operate. The fact that two engines are required to “ drive the works ” shows the extended scale of the business in which so large a number of various implements are used, and makes it clear that those “ tools and instruments” of the trade or profession “ of foundrymen and machinists contribute to the support of several, if not many, persons besides the debtors; and we are not able to separate them and select such as the debtors themselves require for their manual labor in the exercise of the trade or profession by which they gain a living.”

It is therefore ordered that the judgment appealed from be reversed, and the rule of defendants dismissed, with costs in both courts.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 6012.
    Mrs. Josephine M. Buelow, Dative Tutrix, et al. vs. Alfred A. Mandal et al.
    Judicial proceedings upon a void instrument are void, and whether the widow, in this instance, may bo concluded or not by any' proceedings taken by her on her own behalf, the minors whom she represents are certainly not concluded.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      H. W. Ogden, for plaintiff and appellee.

      Hoi'nor & Benedict, for defendants and appellants.
   Howell, J.

This is an action to annul the probate of the will of P. C. Mandal and the order for its execution, on the ground that a child was born after the will was made, and also to declare the minors represented by plaintiff entitled to sharé equally with the other heirs of the deceased. 'From a judgment in favor of plaintiff the defendants have appealed.

The fact, as alleged, is established, and under the provisions of article 1705 R. C. C. the will was without legal effect and the proceedings upon said will were equally without effect.

Judicial proceedings upon a void instrument are void, and whether the widow may be concluded or not by any proceedings taken by her in her own behalf, tho minors whom she represents are certainly not concluded.

Judgment affirmed.


author: Taliaeerro, J. Howell, J., Wyly, J., MORGAN, J.,

text:
    No. 5828.
    State ex rel. J. C. Moncure vs. A. Dubuclet.
    Tho contesting of ail election must necessarily bo conducted in conformity with some law authorizing it. If the relator in this case proceeds under the act of 1856 this court thinks that its provisions do not apply to said case. By that act . provision is made for contestations of elections held for parish and ward officers only, and summary proceedings are required. This is the only law found in our statutes that authorizes courts to go into the business'of inquiring into and determining the qualifications of voters, the correction of poll-books, etc,, and this law applies specially to the election of parish and ward officers.
    If this act of 1855 applies to the case at bar, which is not admitted, all its provisions would apply. Then tho prescription of ten days would be fatal to the relator’s case, for this suit was not brought except after the lapse of more than six months from the time tho election was held. Besides, from the judgment rendered against the relator in the lower court rolator could not have appealed.
    If the relator claims that the act of December 18, 1872, establishing the Superior District Court of Now Orleans, gives that tribunal jurisdiction to try a contested election for any State office, then, if that statute does not prescribe other terms of proscription of actions to contest elections and prescribe other formalities of proceeding in contested cases, the rules of conducting such cases and the terms of prescription defined in the Revised Statutes, articles 1418,1419, and 1421, would apply and prove equally fatal to the relator’s case.
    The functions of the Returning Board, so far as relates to the elections of November, 1874, ceased when the board completed the investigation of the election returns from tho various parishes of the State and made their official report of the results. They were then without power to take any further action on the subject. It is not in the power of a court by mandamus to require the individuals who composed that board to re-assemblo and act in the capacity of a returning board. Under no circumstances could a mandamus issue requiring a returning board to do more than perform its duties, if it refused to perform them. A court is wholly without power to determine how these duties shall be performed. The mandamus, for these reasons, was properly rejected.
    ■One purpose in organizing the Superior District Court was to have tho vexed questions of intrusion into office, so frequently arising under peculiar political circumstances, as to who held the proper commission or authority from conflicting sources, promptly disposed of, and to that end the Superior District Court was authorized to entertain all proceedings and to try all eases or actions in which the right to any office — State, parish, or municipal, is in any way involved.

      Tlie act creating the Returning Board provides that the returns oí elections thus made and promulgated shall b oprima fade evidence in all courts of justice and before all civil officers, until set aside after a contest according to law. The contest then which involves the rebuttal of the prima facie evidence of the correctness of the returns of the Returning Board and the re-opening of the investigation of the election returns in order to determine which of two opposing candidates is entitled to a given office, is a contest to be made according to law. If the law-maker has omitted to enact the law under which proceedings in such cases are to be conducted, it is a casus omissus which the courts can not supply.
    .Article ten of the constitution of the State, invoked by the plaintiff, is not available. In civil governments, rights are enforced by rules and methods having the authority of law, and they can be legally enforced in no other way. The high behests of the organic law are not always self-enforcing; the manner in which its commands are to be obeyed is often left to be provided by the legislative branch of the government, To this branch of the State government the organic law delegates the power to provide rules and principles by which its provisions are to be made practically useful, and especially so when the organic law is silent on the subject, without such prescribed rules established by law, courts have no guide by which to proceed in their investigation of litigated questions.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      F. G. Zacharie and W. B. Whitaker, for relator and appellant.

      J. Q. A. Felloivs and John JRatj, for respondent and appellee.
   Taliaeerro, J.

The plaintiff alleges that, at the general State election on the second of November, 1874, he was elected Treasurer of the State of Louisiana, having received a large majority of the votes oast by the legal voters of the State; that the defendant was his competitor and was illegally returned as duly elected to the said office by the Returning Board of Elections, coipposed of J. Madison Wells, president; Thomas C. Anderson, Louis M. Kenner, and G. Casenave, the relator averring that he received, on the entire vote of the State, a majority of more than three thousand votes ower his competitor. He alleges specially that the Returning Board refused to count, and did not count, the relator’s majority of one thousand and forty-three votes obtained by him in the parish of De Soto; that the said board did, contrary to law, refuse to count any returns at ■ all from the parishes of De Soto, Grant, and Winn; that the aggregate vote of these parishes was forty-seven hundred for relator and six hundred and sixty-seven for Dubuelet, being twenty-one hundred and eighty majority in favor of the relator, of which he was deprived. He specifies various other acts of the Returning Board in compiling the returns of ■the election and in making out their estimates of the results of the elections in the different parishes, which he charges to have been irregular and illegal, and redounding to his injury as a candidate for the office of Treasurer.

The relator prays service of petition and citation on Antoine Dubuelet, ■and he prays that a writ of mandamus issue to the members of the Returning Board commanding them to' assemble and canvass the returns of the aforesaid parishes, viz.: Bienville, De Soto, Grant, and Winn, and promulgate the same; that, upon the other issues set forth a jury be called to determine them; that there be judgment in his favor, declaring that the commission issued to Antoine Dubuclet as Treasurer was improvidently issued; that he illegally holds the office of State Treasurer;, that relator be decreed to have received a majority of three thousand eight hundred and seventy-six of the votes legally polled throughout tho State at the election aforesaid for the office of Treasurer of the State, and therefore entitled to the said office.

A rule nisi was issued to the officers of the Returning Board, who responded to tho order by exception on these grounds: •

First — That there is in the relator’s suit an improper joinder of parties and an improper cumulation of different causes of action.

Second — That there is no cause of action set up by relator’s .petition against these respondents.

Third — That there is a commingling of allegations in the petition, leaving it doubtful what cause of action the relator seeks to prosecute, the petition being vague and uncertain.

Fourth — That if the object be to contest the election of Antoine Dubu-clet the respondents have no interest in the contest; that the court is without jurisdiction ratione materice; that the law does not authorize the contestation of the election of State Treasurer; and if it did, which is denied, the action is prescribed by ten days.

Fifth — That there is no cause of action against these respondents, whatever may be the suit; that courts are without jurisdiction to inquire into their action as a returning board, or to prescribe their course of action; that the law prescribes their duties, and their acts are limited by their sound discretion under the law, and their findings are not subject to review by any court.

The respondents, in their answer, sworn to by the president of- tho board, declare that “ they commenced the exercise of their functions as a returning board on the eleventh of November, 1874, and completed their work on the twenty-fourth of December following, and promulgated the same according to law; that they have become functus oficio, and have no further legal authority in the premises; that their action is final, and no mandamus will lie against them.”

Tho answer then declares that, “ in relation to the parish of De Soto, no legal return of the election in that parish was made to the returning officers by the supervisor of registration, and consequently they were without means to canvass, count, and compile the votes of that parish, if any election was held in it; that in regard to the parish of Winn, there was evidence before the Returning Board that there was no supervisor of registration in that parish to register the voters and to conduct the election; and that there was no legal election held in that parish on the second of November, 1874.

“ Concerning the parishes of Bienville and Grant, the evidence before the Beturning Board showed that at no poll or place of voting in either of these parishes was there a full, fair, and peaceable election, on account of acts of violence, intimidation, and corrupt influence, such as to materially interfere with the freedom and purity of elections; and, consequently, upon taking testimony of witnesses to ascertain the facts in relation to these matters, and ascertaining that such a condition of things did exist, as stated, the returning officers, in conformity with law, rejected the several polls from these parishes.”

On the part of Dubuelet, an exception was filed containing, in substance, the same matters set up in the exception of the officers of the Beturning Board, with the further exception that if the relator’s cause of action is one under the intrusion act, then the petition sets forth no muniment of title in the relator, Moncure, which authorizes proceedings under that act; that in relator’s petition no cause of action is set up.

By the judgment of the court a qua the exceptions were sustained, the mandamus prayed for refused, and the suit dismissed. The relator appealed.

We think the exceptions were properly sustained and the judgment dismissing the case correctly rendered. The contesting of an election must necessarily be conducted in conformity with some law authorizing it. Under what law does the relator proceed ? If it be under the act of 1855, we do not think its provisions apply to his case. By that act provision is made for contestations of elections held for parish and ward ■officers only, and summary proceedings are required. The contestant must, within ten • days after the election, present to the court a petition signed by at least twenty voters of the parish, praying the court to examine the facts and decide thereon. The adverse party is required to answer after ten days from service of petition, and the issue to be proceeded with summarily before a jury. The jury is authorized to decide which of the parties is entitled to the office, or to return the matter to the people for á new election. No new trial or appeal is allowed. This is the only law found on our statutes that authorizes courts to go into the business of inquiring into and determining the qualifications of voters, the correctness of poll-books, rejecting votes found to be illegal, correcting and compiling returns of elections, questions arising as to the legality of the mode, time, and place of holding elections, adjusting the reports of commissioners of election, and generally all the details relating to the proceedings required in the holding of elections. And this law applies specially to the election of parish and ward officers.

If this act of 1855 applies to the case at bar, which we by no means admit, all its provisions would apply. Then the prescription of ten days would be fatal to the relator’s case, for this suit was not brought until after the lapse of more than six months from the time the election was-held. Besides,- from the judgment rendered against the relator- in the lower court he could not have appealed.

If the relator claims that the act of December 18,1872, establishing-the Superior District Court of New Orleans, gives that tribunal jurisdiction to try a contested election for any State office, then, if that statute does not prescribe other terms of prescription of actions to contest elections, and prescribe other formalities of proceeding in contested cases,, the rules of conducting such cases, and the terms of prescription defined in the Revised Statutes, articles 1418,1419, and 1421, would apply, and prove equally fatal to the relator’s case.

So far as relates to the general election of November, 1874, the functions of the Returning Board ceased when the board completed the investigation of the election returns from the various parishes of the State and made their official report of the result. They were then without power to take any further action on the subject. It is not in the power of a court, by mandamus, to require the individuals who composed that board to re-assemble and act in the capacity of a returning board. Under no circumstances could a mandamus issue requiring a returning-board to do more than perform its duties, if it refused to perform them. A court is wholly without power to direct hoiu these duties shall be performed. The mandamus, for these reasons, was properly refused.

It is clear to our minds that the act of the eighteenth of December,. 1872, establishing the Superior District Court does not authorize the contesting of any election not previously authorized by law to be contested. In the structure of that part of the act relating to elections the term contest is not used; the prominent characteristic expression used is “ right to any office, State, parish, and municipal,” clearly indicating and embracing the intrusion-into-office act. As a matter of contemporaneous history, we judicially know that titles to office were about that period issued by adverse and conflicting persons, each claiming to rightfully wield1 the authority of the State and to direct the State government. Commissions in great numbers were thus issued, and frequent disturbing difficulties arose from the conflictions between different parties holding commissions for the same office. One purpose in organizing the Superior District Court was to have these vexed questions as to who held the proper commission or authority promptly disposed of, and to that end the Superior District Court was authorized to entertain all proceedings and to try all cases or actions in which the right to any office, State, parish, or municipal, is in any way involved.

But it would seem the relator himself relies chiefly on article ten of the State constitution, which declares that “ all courts shall be open, and every person for injury done him in his lands, goods, person, or reputation shall have adequate remedy by due process of law, and justice administered without denial or unreasonable delay.”

Let it be conceded, for the argument’s sake only, that this article of the constitution embraces the controversial disputes growing out of elections; that the wrong complained of by the relator is one to be redressed under and by the provisions of the article quoted. Then he is entitled to an adequate remedy by due process of law. The article of the -constitution does not prescribe this process of law that he is entitled to. Justice shall be administered without denial or unreasonable delay. The article is silent as to how justice shall be administered. Yet, in seeking the adequate remedy, due process of law must be followed; justice is to be administered by due process of law. It is for the Legislature to prescribe the due process of law; to establish and define rules under which proceedings to determine which of two candidates for a State office received a majority of the votes cast throughout the State for that office, when one of these candidates charges that, through error or fraud, the Returning Board has illegally and wrongfully returned his competitor duly elected instead of the complainant, who insists that he was duly and legally elected. The returns made by the Returning Board are made prima fade evidence of their correctness, but subject to revision. Now,’ we are unable to find that the Legislature has prescribed the process of law, the rules to be followed by the courts, the modus operandi to be observed in having the returns of the Returning Board corrected if erroneous or fraudulent. The courts are open, but it is not for them to enact laws prescribing the manner in which the action of the Returning Board is to be judicially revised. The redress sought for by the relator involves the contesting of votes. This court, in the case of the State vs. the Judge of the Second District Court, 13'An. p. 90, announced that “the contesting of votes is not a judicial function, only so far as made such by special statute. Indeed, some have gone so far as to question whether this is not wholly a matter of administration, which can not with propriety be referred to the judicial tribunals at all. At any rate, it is clear that such tribunals can not usurp any greater control over this business than is specially imposed upon them by law. In the absence of a statutory authorization they are without jurisdiction rañone materice.”

In the case of Colin vs. Knoblock, 25 An. 263, the same views were expressed. It was there said that “the adjustment and compilation of election returns, determining .the number of legal and illegal votes cast for each candidate, declaring the result of an election, and furnishing the successful candidate with the proper certificate; in short, superintending and controlling all the details of an election, belong primarily and properly to the political department of the government.”

We nowhere find that the law-making power of the State has referred to judicial action contested elections involving an inqúiry into all the details of an election, except by the act of 1855, which, as we have already seen, is specially restricted to the election of parish and ward officers.

The act creating the Returning Board provides that the returns of elections thus made and promulgated shall be prima facie evidence in all courts of justice and before all civil officers until set aside after a contest according to laio. The contest, then, which involves the rebuttal of the prima facie evidence of the correctness of the returns of the Returning Board, and the re-opening of the investigation of the election returns in order to determine which of two opposing candidates is entitled to a given office, is a contest to be made according to law. If the law-maker has omitted to enact the law under which proceedings in such cases are to be conducted, it is a casus omissus which the courts can not supply. In civil government, rights are enforced by rules and methods havihg the authority of law, and they can be legally enforced in no other way. The high behests of the organic law are not always self-enforcing; the manner in which its commands are to be obeyed is often left to be provided by the legislative branch of the government. To this branch of the State government the organic law delegates the power to prescribe rules and principles by which its provisions are to be made practically useful, and especially so when the organic law itself is silent on the subject. "Without such prescribed rules established by law, courts have no guide by which to proceed in their investigation of litigated questions brought before them. Proceeding under prescribed rules in determining controversies, the judge is authorized to decide according to equity where there is no positive law applicable to the case; but he must acquire a knowledge ■of the merits of the case, and reach conclusions by pursuing established rules for acquiring such knowledge by evidence presented for his consideration. It is, then, a fallacy to say that courts can assume to determine controversies not referred to them, and in relation to the investigation of which there are no established rules and principles required by law to be followed.

Juclgment affirmed.

Howell, J.,

concurring. Counsel for plaintiff admit that this suit is not brought under any act of the Legislature relative to elections; but is based solely on the tenth article of the constitution, which is in these words: “All courts shall be open, and every person, for injury done him in his lands, goods, person, or reputation, shall have adequate remedy by due process of law, and justice administered without denial or unreasonable delay.”

And it is contended that this brings the subject of elections within the judicial department, and authorizes every candidate for office to bring suit against his opponent, to have the regularity and legality of the election tested in the courts under the rules of practice common to all litigants. If this were so, it was useless to prescribe any rules in regard to contesting elections or getting possession of offices. But article ten does not establish any new rule of right in this State. It merely affirms a right which has always been recognized.

Admit, however, that it does bring the contest for office within the domain of the judiciary, it does not take from the Legislature the legislative prerogative of prescribing rules of procedure; but it implies that the Legislature shall do so, for the article declares that the person injured shall have adequate remedy by due process of law. The Legislature has acted on the subject since the adoption of said article, and has not provided the remedy as to the office claimed by relator. We can not supply the omission. The doctrine urged on behalf of relator would, in my opinion, enable the judiciary to control and absorb the other departments and become the government of the State. But I do not think this article refers to claims to hold office, which in our form of government is not a vested right. Ours is essentially a government of laws, and offices are created not for the office-holder, but for the benefit of the people, whose agents the officers are, and any injury that may arise is not strictly personal to the candidate, -but to the electors. The selection of such agents or officers is a purely political function, to be exercised and carried out under the rules fixed by the legislative department and the special provisions of the constitution, and is not subject to judicial action, except where expressly made so by legislation. 13 An. 90; 25 An. 264, 267. The clause of the election law making the “ returns ” prima fade evidence, refers necessarily to the actions provided by law, and can be set aside only in the manner prescribed.

In any view of the case, I can not see that the plaintiff has shown any cause of action under existing laws, and for the foregoing reasons I concur.

Wyly, J.,

dissenting. Moncure alleges that he was elected State Treasurer,,but that the Returning Board, by refusing to canvass and count the votes at certain polls and in certain parishes, and by rejecting others after investigation, so changed the result as to make it appear that Du-buclet received a majority of the votes, and so declared, and Dubuclet was thereupon commissioned. He charges that the canvass was not fairly made, and the conduct of the Returning Board was arbitrary and fraudiilent.

The petition was dismissed on the exceptio'n that it disclosed no cause of action, and the court was without jurisdiction to inquire into the action of the Returning Board; that its acts are limited to its own discretion, and its findings are not subject to review by any court.

The doctrine that the Board of State Canvassers, or the Returning Board, is vested with the power contended for by defendant, and that its action can not be revised by the courts, however arbitrary and fraudulent it may be, is a doctrine that is not supported by act No. 98 of the acts of 1872, the law organizing said Returning Board, nor is it authorized by any law of this State. On the contrary, the law creating the Returning Board and providing for the canvass of the votes after an election declares that “ the returns of the elections thus made and promulgated shall b e prima facie evidence in all courts of justice and before all civil officers, until set aside after a contest according to law of the right of any person named therein to hold and exercise the office to which he shall by such return be declared elected.”

What does this language mean ? It means what it says: That the findings of the Returning Board are not conclusive, but they are only ■prima facie evidence in all courts of justice, “until set aside after a contest according to law.”

The intention of the law-giver is not obscure. It clearly contemplates a review of the action of the Returning Board by the courts whenever a complaint is made by a party interested that the canvass made by such board is unfair, arbitrary, or fraudulent, and that it is injurious to the complainant.

There is no doubt the statute in question was passed in reference to-article ten of the constitution and the laws of the State, giving a remedy where there is a wrong. Article ten of the constitution declares that, “all courts shall be open, and every person for injury done him in his land, goods, person, or reputation, shall have adequate remedy by due process .of law, and justice administered without denial or unreasonable delay.” If Moncure was elected State Treasurer by a majority of 387& votes over his opponent, Antoine Dubuclet, and was fraudulently counted out by the Returning Board, as he alleges in the petition (and this averment must be taken as true for the purpose of trying this exception, that there is no cause of action), he has been unjustly deprived of his office, his rights have been invaded, and by article ten of the constitution the courts are open to him, and “ adequate remedy by due process of law and justice shall be administered” to him “without denial and unreasonable delay.” See, also, 27 An. 138. I had occasion, in my dissenting opinion in the case of Bonner vs. Lynch, 25 An. 267, to argue this question very fully, and I cited authorities from nearly all the States of the Union showing that the action of a State board of canvassers or a returning board is not beyond the reach of judicial inquiry; that the duties of such a board are ministerial, and can- be reviewed by the courts. I will-not repeat the argument, but simply refer to my opinion in that case in support of the position I take in this. Under the constitution of this State the General Assembly could not, if it desired, confer- judicial power on the Returning Board, because article seventy-three provides that “the judicial power shall be vested in a Supreme Court, in district courts, in parish courts, and in justices of the peace.” •

In my opinion the petition discloses a cause of action, and the canvass of the Returning Board is not beyond the reach of judicial inquiry. It is the election by the people, and not the certificate of the .Returning Board, that gives a right to an office. I think the case should be remanded to be tried on the-merits.

It is urged, however, that if the act of 1872 contemplated a review of the action of the Returning Board by the courts, the General Assembly by oversight neglected to prescribe the form of procedure, and therefore this intention can not be carried into effect. It is a sound rule of construction that where a statute gives a right and fails to indicate the form of the action to enforce it, the court will presume that the law-giver intended the right to be asserted under the general rules of practice existing at the time; that where no special form of action is mentioned in the statute giving the right, the law-giver intended the right to be asserted under the usual forms of pleading.

In my opinion the statute in question was passed in reference to article ten of the constitution; and in all cases where a special form -of action is not provided legal rights may be asserted in the usual forms of procedure in our courts. The best evidence that the la-w-giver intended no special form of action .for cases arising under the statute is, that such intention is not disclosed in the act, and no special form of action is given.

I will not impute to the General. Assembly the lamentable weakness of giving a right and neglecting to furnish a remedy to enforce it. Nor do I think it proper for this court, invested with jurisdiction both of law. and equity, to permit substantial rights to be lost for technical reasons, or to decline to protect a citizen in a most valuable right simply because there is no statute prescribing a form for the action. In my opinion if a right exists, the courts of this State, being courts of law and equity, can give adequate relief as required by the constitution. And this was the opinion of this court in the recent case of Crescent City Gaslight Company vs. New Orleans Gaslight Company, 27 An. 139.

In considering the question that came up in that case, whether where, a legal right is shown, there is a remedy, the court said: “If the plaintiff is injured to the extent claimed, and is crippled by the loss of its credit so as to be impeded in carrying out its contract with the State by the pretensions and claims of defendant, founded on the act of March 1, 1860, which is alleged to be unconstitutional and void, the question is: can this court redress the wrong of which plaintiff complains and give the relief prayed for in the petition? We think that it can.” After quoting article ten of the constitution, the court uses the following language: “ It is urged, however, that this is not one of the. actions mentioned in the Code of Practice. The authors of our law have not seen fit to prescribe forms for every legal demand, and they have not cata-logued in the Code of Practice all the actions that may be brought in our courts; it is, perhaps, well that they have not done so, lest by omission of a form, substantial relief in some case might be denied to a person whose rights have been invaded. * * * In our opinion, plaintiff has shown an injury, and if there be ho express law giving a remedy, it can appeal to the equity powers of the court for redress. Revised Code, article 21; Marbury vs. Madison, 1 Cranch. 177; Dodd vs. Benthal, 4 Heiskal 602; State vs. Patterson, N. J. Law 163; State vs. Jersey City, 34 N. J. Law 390; Story’s Equity Jur. page 31; Broom’s Legal Maxims, 180; Hilliard on Injunctions, 550; England vs. Lewis, 25 Cal. 357; Evans vs. Merchants’ Bank, 51 Mo.; 22 Missouri, 348; see, also, Osburn vs. the Bank of United States, 9 Wheaton, 742. If, however, the cause of action were doubtful, we would feel inclined, in view of the public interest involved in the issues herein, to maintain the suit and proceed with the trial on the merits.”

Applying the principles of the case cited to the one at bar, I would say, in the language of that decision, “ plaintiff (Moncure) has shown an injury, and if" there be no express law giving a remedy, he can appeal to the equity powers of the court for redress. * * * If, however, the cause of action were doubtful, I would feel inclined, in view of the public interest involved in the issues herein, to maintain the suit and. proceed with the trial on the merits.” I can not conceive that the public interest in a controversy between two gaslight companies can be so great as in the case at bar; indeed, no case has been presented to this court since I have had the honor of being a member of it involving issues of graver importance to the people of Louisiana. Besides the right of Mr, Moncure to the office of State Treasurer, to which the pleadings admit he was elected by a majority of 3876 votes, this case presents the grave question whether the decision of the Returning Board can defeat the will of the people; whether there is in this land of liberty a power.greater than the people, upon whose arbitrary will the right to an office solely depends. The statute of 1872, creating the Returning Board, has not placed its action beyond the reach of judicial inquiry; on the contrary it declares that the returns of election made by this board “shall be prima facie evidence in all courts of justice, and before all civil officers, until set aside after a contest according to law;” that means after a contest in court according to the laws existing in the State.

It is urged, however, that no man has a vested right to an office, and therefore plaintiff has no cause to complain. This is a fallacy. The State Treasurer has no vested right to his office in the sense that the people may not at any time change the government by adopting a new constitution; but while the constitution of 1868 exists, this officer has a legal right to his office, which can not be divested except in the manner indicated by the constitution.

In my opinion, where a legal right of a citizen has been invaded, or where there is a wrong, there is adequate remedy, and the courts are open to administer justice without denial and unreasonable delay. I believe there is ample power in the court to redress the wrong of. which plaintiff complains. I therefore dissent.

MORGAN, J.,

dissenting. I think that title to an office is a proper matter for judicial inquiry, and that the courts of the State should be, and by the constitution are, open for the trial of such issues. I think that the Superior District Court had jurisdiction over the matters in controversy between the parties, and that the suit should have been proceeded •with. I therefore think that the case should be remanded.


author: Ludeling, C. J.

text:
    No. 6198.
    A. L. Gusman vs. Mrs. Zulmé E. Hearsey and Husband; and Zoé A. Gusman, Wife of George Garig, vs. the Same. Consolidated.
    The present suits are to recover the damages which plaintiffs failed to recover in a former suit, and the demands are renewed on the ground that defendant swore falsoly when interrogated on facts and articles in the former suits. There would be no end to litigation if such suits were countenanced. The petitions show no cause of action.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Dewing, J.

      E. W. Bobertson, for Mrs. Garig, plaintiff.

      Samuel P, Gh’eves and Andrew S. Herron, for A. L. Gusman, plaintiff and appellant.

      J. & G. W. Burgess, Favrot & Lamon, for defendant and appellee.
   Ludeling, C. J.

The petitioners, in substance, allege that they have suffered damages from the “turpitude, fraud, slanders, and perjury of the defendant” in suit No. 1210 and in suit No. 2216. They allege that in answer to interrogatories on facts and articles defendant falsely and slanderously swore that there was a condition precedent to the partb tion, and that it was.on account of the failure of the plaintiffs to comply with this condition that the partition was not completed; that said suit No. 2215 was lost solely in consequence of the false swearing of the defendant; that since the final decision of said suit, defendant has admitted, in another suit, her fraud, slander, and perjury, wherefore they pray for judgments against defendant for the damages suffered by them, which are the losses of the damages claimed in the former suit and attorneys’ fees.

Defendant filed the following pleas: Bes judicata, estoppel, and no cause of action, which were sustained, we think, properly. The present suits are to recover the damages which they failed to recover in the former suit, and the demands are renewed on the ground that defendant swore falsely when interrogated on facts and articles in the former suits. There would be no end to litigation if such suits were countenanced.' The petitions show no cause of action.

It is therefore ordered that the judgment be affirmed with costs of appeal.


author: Ludeling, C. J. MORGAN, J.,

text:
    No. 6197.
    Matthew W. Vernon vs. Leslie Bankston.
    The jurisprudence of this State is well settled, that one who is himself in fault can not recover damages for a wrong resulting from such fault, although the party inflicting the injury was not justifiable under the laws.
    APPEAL from the Sixth Judicial District Court, parish of St. Helena, on change of venue from the parish of Tangipahoa. Kemp, J. Jury trial.

      James N. Muse and Charles JS. Lea, for plaintiff and appellant.

      MeEnery, Ellis & Ellis, for defendant and appellee. ■
   Ludeling, C. J.

This is an action for damages against the defendant for injuries inflicted on the plaintiff by the defendant. The damages claimed are five thousand dollars. There was a verdict and judgment in favor of the defendant.

The evidence shows that there existed an old feud between the parties; that on the day of the conflict between them the plaintiff had been drinking to excess; that he and his brother overtook the defendant on the road. Defendant was in a cart.' As the plaintiff passed by the cart the mule he rode shied, and the defendant exclaimed “ whoa.” Thereupon the plaintiff told defendant he could whip him or ride him, and both parties got down to fight, when the plaintiff drew a pistol and tried to shoot the defendant. The brother of plaintiff rode between them to prevent the fighting or shooting. During the time plaintiff was trying to shoot defendant, the latter requested an acquaintance who had come to the place to get him a gun, and the plaintiffs brother rode off to get his gun. The gun was procured, and the defendant shot the plaintiff. •

The evidence is conflicting as to whether this was done in self-defense, but the weight of evidence is that the shooting was not in self-defense. Still, there can be no doubt that the plaintiff’s conduct was not blameless, and that the shooting was caused in part by his own fault. The jurisprudence of this State is well settled that one who is himself in fault can not recover damages for a wrong resulting from such fault, although the party inflicting the injury was not justifiable under the laws.

It is therefore ordered that the judgment of the lower court be affirmed with costs of appeal.

MORGAN, J.,

dissenting. I dissent in this case, and will file my reasons hereafter.


author: Taliaeerro, J.

text:
    No. 6063.
    F. E. Chanut vs. Levasseur & Co. et al., and Same vs. E. L. Levasseur.
    These eases present a contestation in a concurso of creditors over the proceeds of sale of a stock of goods sold under legal process by the sheriff as the property of Edward Leon Levasseur. They are all privileged claims against Edward Leon Levasseur, L. H. Gardner & Co. excepted to the sale of the stock of goods being made under process of a different court than that having jurisdiction of their attachment suit, and objections were interposed to the legality of the sale of personal property under orders of seizures and sale. But these 'parties, L. H. Gardner & Go., claimed the proceeds of the property in the hands of the sheriff; and-thoreby admitted the legality of the sale. There is no error as to the distribution as made by the judge a quo.

    APPEAL from the Fifth District Court, parish of Orleans. Gullom, J.

      Kennard, Howe & Prentiss and T. M. Gill, for L. H. Gardner, appel-. lant.

      A. & W. Voorlúes, for F. E. Chanut, appellee.
    P. JS. Théard, for C. Joubert & Co., appellees.

      G. Schmidt, for Mrs. C. Anderson, appellee.

      J. L. Tissot, for C. Tiblier, administrator and appellee.
   Taliaeerro, J.

These cases present a contestation in a concurso of creditors over the proceeds of a sale of a stock of goods sold under legal process by the sheriff as the property of Edward Leon Levasseur.

From the facts given in the case of L. H. Gardner & Co. vs. Levasseur & Co., just decided, it will be seen that Levasseur & Co., after compounding with their creditors in June, 1873, by agreeing to pay them thirty-three cents on the dollar in two installments, sold out on the -first of October following their entire stock of merchandise to Edward L. Levas-seur, the son of P. W. Levasseur, one of the partners of Levasseur & Co.; that the transfer of these goods was made by notarial act, and that the consideration was $10,104 04, from which $168 04 were deducted as salary due him as clerk, and that for the remainder of the price he executed twenty-seven promissory notes falling due at various periods, drawn payable to bis own order and indorsed by him. In the act of sale it was expressly stipulated that the vendor’s privilege was reserved in favor of the vendors or any future holders of the notes. It will be further noted that on the twenty-second of November, 1873, L. H. Gardner & Co. brought suit against Levasseur & Co. on their original debt against that firm, and attached, on the eighth of December following, as property of their debtors, the stock of goods sold by Levasseur & Co. to Edward L. Levasseur, and which was delivered to him and went into his possession on the first of October, 1873. L. H. Gardner & Co. obtained judgment in their Suit against Levasseur & .Co. for the amount of their original debt, with interest and privilege as attaching creditors. Subsequent to the attachment of Gardner & Co., various creditors of Edward L. Levasseur brought suits against him and obtained judgments. Two of these suits were brought by E. E. Ohanut, one for $300, the other for $1729 50 ; another was brought by Joubert & Co. for $200, a claim for. merchandise; another by Tiblier for rent of the store-house, $1250; and two suits were brought by Charlotte Anderson, the one for $3183 40, the other for $1140 53.'

Pour of these suits were brought in the Sixth District Court and two of them in the Fifth Court, and judgments were rendered in favor of the plaintiffs. They are all privileged claims, and against Edward L. Levas-seur. They arc predicated upon the promissory notes of Edward L. Levasseur, secured by vendor’s privilege, except two of them, the claim of Tiblier, the lessor, and the claim of Joubert & Co., for merchandise sold to E. L. Levasseur and which was identified. For his claim of $200 he has the vendor’s privilege. Writs of seizure and sale' and writs of fieri facicts were issued, and under them the goods were sold and the proceeds retained in the hands of the sheriff. Chanut then came into the Fifth Court and obtained a rule for a distribution of the proceeds of sale. A tissue of litigation ensued; various bills of exceptions were taken to the rulings of the judge on questions of practice for the most part. We do not regard it important in the decision oi this case to pass upon them. L. H. Gardner & Co. excepted to the sale of the stock of goods being made under process of a-different court than that having jurisdiction of their attachment suit, and objections were interposed to the legality of the sale 'of personal property under orders of seizure and sale. But these parties, L. H. Gardner & Co., claimed the proceeds of the property in the hands of the sheriff, and thereby admitted the legality of the sale. The exception of L. H. Gardner & Co. to the rule for distribution was overruled. The judgment of the court was rendered as follows:

First — To Olaude Tiblier, testamentory executor, agent, etc., his claim - for rent with first privilege on the proceeds of sale.

Second — J. E. Joubert & Co., the sum of two hundred dollars with privilege on the proceeds of the goods identified herein.

Third — To F. E. Ohanut and Charlotte Anderson, their claims with the privilege on the goods in store on the first of October, 1873, and which had belonged to Leon Levasseur.

Fourth — The claim of L. H. Gardner & Co.

From this judgment L. H. Gardner & Co. appealed.

We see no error in the judgment.. It appears to settle the legal rights in conformity with law.

Judgment affirmed.

Rehearing refused.


author: Howell, J. Wmr J.,

text:
    No. 5807.
    Successions of J. O. and Anne McCall.
    I£ the defendant in partition is properly represented, the act of partitioning all the property is an aeeeptanee of the succession, and the creditors, if any, will not ■ be injured by the sale, which, if legally made, transfers the mortgages that may exist to the proceeds.
    The record shows that the absent heir was properly represented, and the proceedings wore had contradictorily with such representative. The order of sale was not and is not a judgmont against the absentee, but simply an order directing the auctioneer how to sell property, which a judgment already rendered contradictorily between the parties had decreed it was necessary to sell in order to effect the partition. In assenting to the terms and conditions as the most favorable to the absentee, the curator ad hoc waived no right which he was bound to defend.
    It was not irregular to sell two pieces of proporty separately which adjoinod and had been described together. The evidence is that it was advantageous. The terms are legal.
    Objections must be explicitly made, and notin general terms, as apparent on the face of the record.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      McGfloin & Nixon, for administrator and appellant.

      James & Joseph Brewer and A. & W. Voorhies, for Curtis, defendant and appellee.

      W B. Lancaster, for Sheehan, defendant and appellee.
   Howell, J.

These two successions were administered by one of the heirs, William J. McCall, who, as heir, instituted a suit for a partition and caused a curator ad hoc to be appointed to represent his absent brother, Thomas 0., who is the only other heir. This curator ad hoc was duly cited, and he filed an answer to the suit. After the report of the experts was made to the effect that a partition in kind could not be made, the plaintiff filed a petition asking that an inventory be made, that an order of sale issue to an auctioneer named, and that the property be sold for one third cash and the balance on a credit of one and two years', with eight per cent interest and the usual clauses for attorney’s fee, insurance, mortgage, etc. The curator ad hoc consented to the terms and conditions, and joined in the prayer of the petition. The court, considering the prayer of the petition and written approval of the curator ad hoc,” granted the order as prayed for. The sale was made, and the several pieces of property were adjudicated to various persons. Some six months thereafter W. J. McCall, as administrator and heir, took a rule on the purchasers to comply with their bids, or in default, to have the property sold at their risk. Two of them made defense—

First — That the two successions were in course of administration and in possession of the administrator thereof, who had not rendered a final account, and a sale for partition could not therefore bo made.

Second — That said sale and adjudication are null and void, as the proceedings are for a partition between heirs of age, and the Second District Court is without jurisdiction.

Third — That one of the heirs is an absentee, and was not properly represented in said proceedings.

Fourth — -That the proceedings were not had contradictorily.

Fifth — That the property was advertised and sold under a description entirely different from that in the petition and order for a sale, and without any judicial sanction for such difference.

Sixth — The sale was made on terms not authorized by law.

Seventh — And other irregularities, informalities, and nullities apparent on the face of the record and proceeding.

One of them made an additional defense, that the property adjudicated to him was incumbered with a lease different from that described by the auctioneer at the time of the sale, and more onerous, and that ■plaintiff could not give possession, and can not now. Each asked for the return of-the cash payment. Judgment was rendered in favor of the defendants, dismissing the rule, and plaintiff appealed.

First — As to the first ground, we can see no good cause of apprehension on the part of the purchasers. If the defendant in the partition is properly represented, the act of partitioning all the property is an acceptance of the succession, and the creditors, if any, will not be injured by the sale, which, if legally made, transfers the mortgages that may exist to the proceeds. We arc of opinion that if the court be competent and the defendant, the absent party, properly represented, the purchasers will be protected.

Second, third, and fourth — The objection to the competency of the court seems to be abandoned, and we think the record shows that the absentee was properly represented, and the proceedings were had contradictorily with such representative. The point is not made in the answers to the rule, that the curator ad hoc was without authority to agree to the terms of the sale, but it is asserted in brief that a curator adhoc can give no consent to any judgment rendered against an absentee, and the case of Carpenter vs. Beatty, 12 R. 540, is cited. That case is very different from this. The order of sale was not and is not a judgment against an absentee, but simply an order directing the auctioneer how to sell property which a judgment already rendered contradictorily between the parties had decreed it was necessary to sell in order to effect the partition. And in assenting to the terms and conditions as the most favorable to the absentee, the curator ad hoc waived no right which he was bound to defend.

Fifth and sixth — We have not discovered the difference in the description of the property suggested. It was not irregular to sell two pieces of property separately which adjoined and had been described together. The evidence is that it was advantageous. The terms are legal.

Seventh — Objections must be explicity made and not in general terms, as “ apparent on the face of. the record.”

As to the lease, the evidence shows that the auctioneer made the announcement in regard to it in the presence of the purchaser.

We think the purchasers at this sale are fully protected, and they should comply with their bids.

It is therefore ordered that the judgment appealed from be reversed, and that the rule of fifteenth December, 1874, be made absolute, with costs, and the purchasers at the sale on thirtieth May, 1874, of the property of these successions, be ordered to comply with their respective bids and accept the property adjudicated to. them as set forth in the process verbal of the auctioneer annexed to the rule, and comply with the terms and conditions of said sale; in default thereof said property be sold at their risk and according to law; costs of appeal to be paid by appellees.

Wmr J.,

dixxenting. The order of sale in this partition suit, fixing the terms at part cash and the balance on one and two years, was rendered on the agreement of the parties; it was in effect a consent judgment. The curator ad hoc, representing the absentee, Thos. 0. McCall, had no authority to give consent or make any agreement in the premises.

In my opinion the sale was merely a consent sale, and the purchaser acquired no valid title.

I therefore dissent.

Justice Morgan concurs in this dissenting opinion.


author: Wxly, J.

text:
    No. 6224.
    In the Matter of the Estate of James N. Brown.
    The court a qua had no jurisdiction ratione materia!. The matter in dispute,is a demand in the parish court of over seven thousand dollars by the succession of Brown against the succession of Yentress. The heirs of Brown in that succession are suing the administrator of the succession of Yentress for an amount far exceeding five hundred dollars, based on an indebtedness which they allege was incurred by Yentress while administering upon the succession of Brown.
    The succession of Yentress can not be sued by the heirs or creditors of Brown in the parish court on a demand exceeding five hundred dollars, it matters not from what cause the debt originated. The jurisdiction of the courts is fixed by the constitution, and its mandates must be obeyed.
    APPEAL from the Parish Court, parish of Iberville. Cole, J.

      Matthews & Whiles, Lauve & Talbot, for plaintiff and appellant.

      Barrow & Pope, for defendants and appellees.
   Wxly, J.

The motion to dismiss this appeal for want of proper parties is denied, all the parties to the trial in the court below being made parties to this appeal.

James A. Ventress, dative executor of the succession of James N, Brown,- was destituted of office and subsequently died without having rendered a satisfactory account of his administration.

Joseph Bessou was appointed administrator of the succession of James A. Ventress.

Mary E. Brown, wife of Henry J. Feltas, one of the heirs of James N. Brown, took a rule in the succession of Brown to compel the.administrator of the succession of James A. Ventress to render an account of the administration by Ventress of the succession of Brown.

The administrator of this succession was compelled by rule for contempt to render an account, which was opposed by the heirs of Brown, who prayed an amendment thereof, and for judgment against the succession of Ventress for $7135 76.

Subsequently, the court dismissed for want of jurisdiction ratione ma-teria'i the whole proceedings on the account and the oppositions. From this judgment the opponents have appealed.

We think the court did not err. The matter in dispute is a demand in the parish court oí over seven thousand dollars by the succession of, Brown against the succession oí Yentress. The heirs of Brown in that succession are suing the administrator of the succession of Yentress for an amount far exceeding five hundred dollars, based on an indebtedness •which, they allege, was incurred by Yentress while administering upon the succession of James N. Brown.

The succession of Yentress can not be sued by the heirs or creditors of Brown in the parish court on a demand exceeding five hundred dollars, it matters not from what cause the debt originated.

By article eighty-seven of the constitution the parish court has no jurisdiction where the amount in dispute exceeds five hundred dollars, and “all suits in which a succession is either a plaintiff or defendant^ may be brought either in the parish court or district court, according to the amount involved.”

The amount involved here exceeds the jurisdiction of the parish court, and the succession of Yentress is the party sued.

Appellants cite the succession of Twibill, 16 An. 34; also the case of Tessier vs. Littell, 26 An. 602.

The first of these cases has no application ; the suit was brought in the district court, which had jurisdiction.

The second might be construed to sustain the position of appellants, but upon mature consideration we can not adhere to the ruling. The jurisdiction of the courts is fixed by the constitution, and its mandates must be obeyed.

Judgment affirmed.


text:
    No. 6306.
    C. Boyé et al. vs. C. E. Girardey et al.
    'This court does not regard the tax or duty comnlained of in this ease as embraced within the purview of the clauses of the constitution invoked, but only a charge imposed for the services of a licensed officer of the State, the obligation to pay which arises from the voluntary act of parties employing said officer. The State did not require the plaintiffs to sell their property at auction, but required them to pay the charge in case they should employ an auctioneer to make a sale. The plaintiffs, having had recourse to such a mode of selling their property as advantageous to themselves, have no just cause to complain of the requirement on the part of the State.
    APPEAL from the Superior District Court, parish of Orleans. Lynch, Judge of the Fourth District Court, acting in the stead of Judge Hawkins.

      JE. Howard Me Caleb and T. Wharton Collens, for plaintiffs and appellants.

      Henry C. Dibble, Assistant Attorney General, for defendants and appellees.
   Howell, J.

Plaintiffs allege that they employed the defendant, Gi-rardey, as a licensed auctioneer, to sell property for them aft auction, and that said Girardey has retained a certain part of the proceeds as due to the State for a tax or duty of one half of one per cent imposed on auction sales, to be paid by the person whose property is sold, under section 145 Revised Statutes, and they enjoined the said Girardey from paying and the Auditor and Treasurer from receiving said money into the State treasury, on the ground that the said tax is imposed in violation of article 118 of the constitution, fixing uniformity and equality of taxation on the value of property and the amendment limiting the tax on property to twelve and a half mills.

The Assistant Attorney General appeared on behalf of the above officers, and from a judgment against plaintiffs they have appealed.

We do not regard the tax or duty complained of as embraced in the purview of the clauses of the constitution invoked, but a charge imposed for the services of a licensed officer of the State, the obligation to pay which arises from the voluntary act of parties employing said officer. The State did not require the plaintiffs to sell their property at auction, but required them to pay the charge in case they should employ an auctioneer to make a sale. The plaintiffs, deeming such a mode of selling their property as advantageous to themselves, have no just cause to complain of the requirement on the part of the State.

Judgment affirmed.

Rehearing refused.


author: Morgan, J.

text:
    No. 5728.
    A. H. Gale & Co. vs. George W. Doll. Joseph Maristany, Security.
    Plaintiff took a rule upon the security on the appeal bond, to show cause why ho should not respond to the judgment. The objection is that the writ oifierifacias was returned before the delays therefor given by law had expired.
    The return shows that the defendant was absent from the city, and that demand had been made on every one, within the reach of the sheriff, interested in the judgment, for the satisfaction thereof.
    This rule was regularly taken by the plaintiffs, and notice thereof given to the defendant. He appeared by counsel when it was on trial and made none of the defenses set up hero. He does not show in what he was injured. Thero is no error in the judgmont against him.
    APPEAL from the Fifth'' District Court, parish of Orleans. Cullom,

      Bouse & Grant, for plaintiffs and appellees.

      Homar &'Benedict, for defendant and appellant.
   Morgan, J.

There was judgment against the defendant, from which he took a suspensive appeal, Maristany being security on the appeal bond. The judgment appealed from was affirmed. Execution issued, and was returned nulla bona. Then plaintiffs took a rule upon the security to show cause why he should not respond to the judgment. The rule was made absolute, and he has appealed.

He contends:

First — That the allegations of the said rule do not entitle the plaintiffs to a judgment against the surety.

Second — That the writ of fieri facias was prematurely returned, being issued on the fifth of January, 1875, and returned on tho twelfth of January, 1875, after one week’s delay.

Third — That the return on the writ of fieri facias is illegal and insufficient to warrant action against the surety.

The first objection is refuted by a simple perusal of the rule. 1 The second and third amount to the same thing.

The return is as follows:

“ Received, January 5,1875. After diligent search and inquiry, could not find the defendant, George W. Doll, nor any property belonging to' .said defendant, Doll. . I was credibly-informed that the defendant was absent from the city. Made demand on Joseph Maristany, Jr., surety on the appeal, to point out property of defendant, which he failed to do. I called on Messrs. Braughn & Buck, attorneys of record of the defendant, to point out property, which they were unable to do. I then made demand of the plaintiffs’ attorney, who said he knew of no property belonging to said defendant. I now therefore return this writ, no money or property found. Returned by order of plaintiffs’ attorney, January 12,1875.”
“(Signed) ROBERT SWAIN, Deputy Sheriff.”

The objection is that the writ was returned before the delays therefor given by law had expired.

The return shows that the defendant was absent from the city, and that demand had been made on every one within the reach of the sheriff interested in the judgment for satisfaction thereof.

This rule was regularly taken by the plaintiffs and notice thereof given to the defendant. He appeared by counsel when it was on trial and made none of the defenses set up here. He does not show in what he has been injured.

Judgment affirmed.


text:
    No. 6231.
    Cullen McCastle vs. J. J. B. Chaney et al.
    The united States parted with their title to the land in controversy when the selection thereof was made by the State of Louisiana in 1856, under the act of Congress of the twentieth of May, 1826, and the title remained in the State until it was vested in the plaintiff. Consequently, no title ever vested in Chaney, the defendant, who was erroneously patented by the united States: but, while he could not prescribe against the State or the United States, he was such a possessor as to be entitled to require the plaintiff either to reimburse the value of the materials and the price of workmanship in making the improvements, or to reimburse a sum equal to the enhanced value of the soil.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Dewing, J.

      J. O. Fuqua and W F. Kernan, for plaintiff and áppellee.

      Iierron & Bird and J. W. Burgess, for defendants and appellants.
   Howell, J.

This is a petitory action in which plaintiff claims title to a certain tract of land from the State of Louisiana under act of Congress of the twentieth of May, 1826, by virtue of which act the State selected the said land in May, 1856, and issued to him a patent in 1873. He asks that the patent issued by the United States to J. J. B. Chaney in June, 1860, be declared null, as having been issued in error, and that he be put in possession. The defendants in possession claim by donation from J. J. B. Chaney, to whom a patent was issued by the United States; and, in case of eviction, they claim the value of their improvements, and call in their warrantors. Judgment was rendered in favor of plaintiff, decreeing him the owner of the land, annulling defendants’ title, allowing plaintiff rent from October, 1873, directing him to be put in possession, reserving to defendants the right to remove their improvements, and giving them judgment against their warrantors. The defendants and warrantors appealed.

It is clearly shown that the land in controversy was among the lands selected by the State in 1856 as school lands, under the provisions of the above-cited act of Congress, and that the patent issued to J. J. B. Chaney by the United States in 1860 for several different tracts, erroneously included this one ; and that when the mistake was discovered, the proper officers in New Orleans were instructed to procure the patent from Chaney and have it corrected. The United States parted with their title when the selection was made by the State of Louisiana, in 1856, and the title remained in the State until it was vested in the plaintiff. Consequently, no title vested in Chaney, the patentee ; but, we think, while he could not prescribe against the State or United States, he was such a possessor as to require the plaintiff either to reimburse the value of the materials and the price of workmanship in making the improvements, or to reimburse a sum equal to the enhanced value of the soil, under the last clause of article 508, R. O. O. The record does not enable us to fix either the value of such materials and workmanship, or the enhanced value of the soil resulting from the improvements. The case must be remanded for such purpose. The rent should be allowed only from judicial demand. The warrantors have urged no complaint before us.

It is therefore ordered that the judgment appealed from be amended in favor of Mrs. S. A. Hunt, so as to allow rent only from the fifteenth of June, 1874, and to annul the reservation of the right of said defendant to remove the improvements. It is further ordered that this case be remanded to ascertain the value of the material and workmanship in making the 'improvements on the land and the enhanced value of the soil resulting therefrom, and that plaintiff be required to make his choice whether he will pay the value of such materials and workmanship, or the enhanced value of the soil. Costs of appeal to be paid by appellee.


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    No. 5947.
    Mutual National Bank of New Orleans vs. A. Miltenberger & Co. et al.
    The judge a g_uo evidently erred in dismissing, as showing no cause oí action, the intervention and third opposition in which the intervenor alleged she had tho first mortgage on the property seized by plaintiff, praying that her mortgage-debt be recognized, and that the same be paid by preference out of the proceeds of the sale, and that the sheriff be directed to retain the proceeds of the sale subject to the further-order of the court. The case must be remanded.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      T. H. Kennedy & Glviapella, for plaintiff and appellee.

      K B. White, for intervenor and appellant.
   Ludeling, C. J.

The plaintiff, having obtained an order of seizure and sale against certain real estate of the defendants, mortgaged to pay a debt of the plaintiff, had caused the same to be seized and advertised for sale, when Mrs. C. Nott, wife of G. Miltenberger, filed her petition of intervention and third opposition, in which she alleged she had the first mortgage on the property seized, to secure the payment of ten thousand dollars and interest, and she prayed that her mortgage and debtbe recognized and that the same be paid by preference out of the proceeds of the sale, and that the sheriff be directed to retain the proceeds of the sale,'subject to the further order of the court. The seizing creditor then filed an exception that the petition of intervention and third opposition showed no cause of action. This exception was maintained and the third opposition was dismissed. This was manifestly wrong. The third person alleged that she had the first mortgage on the property, which entitled her to be paid by preference out of the proceeds of the sale of the property. The proceeding is authorized by articles 395, 396, 401, O. P.

It is therefore ordered that the judgment of the lower court be reversed, and that the exception be overruled and the case be remanded tO' the court a qua to be proceeded with according to law. It is further ordered that appellee pay costs of appeal.


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    No. 6245.
    City of New Orleans vs. George W. Dunbar & Son.
    The decisions o£ this court seem to have been that the articles of the State constitution contain nothing inconsistent with the law exempting home manufactures from municipal licenses.
    It has been decided that the general laws exempting from license-tax persons engaged in selling articles of their own manufacture manufactured within the State, were not repealed or modified by the charter of the city of New Orleans enacted in 1870..
    But it is correctly contended by the counsel for the city, that since that decision was rendered, a law was enacted which repeals the exemption of manufacturers from the payment of licenses so far as relates to the city of New Orleans, to wit: the sixteenth section of act No. 73 of the acts of 1872, approved the twenty-sixth of April, 1872. The objection that this act is unconstitutional because it is not sufficiently explicit in its purposes as expressed in the title, is not well founded.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, j.

      Samuel P. Blanc, Assistant City Attorney, for plaintiff and appellant.

      Breaux, Fenner & Hall, for defendants and appellees.
   Taliaeerro, J.

The defendants are sued for a license-tax on a manufacturing establishment. They answer that they are exempted from the payment of a license under a general law of the State which exempts the trade in home-manufactured commodities from the payment of license. They allege that their trade or business is exclusively confined to selling articles of their own manufacture manufactured in the State. There is no issue as to the character of the defendants’ business.

The question as to the application of the general laws of the State exempting the trade or business in domestic manufactures from license-tax to the city of New Orleans, has frequently been before this court for consideration. The decisions seem to have been that the charters and articles of the constitution contain nothing inconsistent with the law exempting' home manufacturers from municipal licenses. The case of Honold vs. the City of New Orleans, 23 An. 726, decided that the general laws exempting frond license-tax persons engaged in selling articles of their own manufacture manufactured within the State were.not repealed or modified by the charter of the city of New Orleans enacted in 1870. The case of the City of New Orleans vs. C. Lusse and R. Rulman was referred to and the opinion there rendered was re-affirmed in Honold’s case. In the case against Lusse and Rulman, decided in 1869, the court found nothing in the constitutions of 1864 and 1868 inconsistent with the power of the Legislature to exempt persons from a license-tax'. The case of Honold vs. the City of New Orleans was decided in November, 1871. It is now contended by the counsel for the city that, since that decision was rendered, a law' has been enacted which repeals the exemption of manufacturers from the payment of licenses so far as relates to the city. He invokes the provisions of the sixteenth section of act No. 73 of the acts of 1872, which was approved on the twenty-sixth of April, 1872. The sixteenth section of that act provides that “ no provision in any general law of the State limiting the power of taxation by the several cities, towns, parishes, and other corporations shall be held to apply to any of the taxes of the city of New Orleans herein or otherwise specially authorized to be levied.” He holds that, after this act of twenty-sixth of April, 1872, went into force, manufacturers claiming exemption from municipal license-taxes under the general laws can no longer avoid the payment of such tax to the city of New Orleans. In the case of the City of New Orleans vs. the Globe Mutual Life Insurance Co., decided in the early part of the present term (Opinion Book, No. 44, p. 609), the company was held liable to pay a license-tax of .three hundred dollars imposed by the city, although on the part of the company it was held that by section three of the act No. 42 of March 3,1871, paragraph fifteen, and also by section six of the same act, the company, was .exempted from paying any assessment throughout the State other than that imposed by the said act, and therefore payment of the three-hundred-dollar license-tax could not be required from the company. The last act under which the insurance company claimed exemption is the act.providing a general revenue for the State, approved March 8, 1872. But the sixteenth section of a later act, that of April 2,1872, (numbered 73) hereinbefore quoted, was construed by the court to repeal the sections and clauses of the previous acts under which the insurance company claimed exemption, and judgment was rendered against the defendant. On the same ground and for the same reason we conclude that the defendants in the case at bar must be held liable to pay the license-tax required from them by the plaintiff. But on the part of the counsel for defendants it is argued that if by section sixteen of the act of second of April, 1872, it was intended by the Legislature to repeal the acts relating to exemption from taxes on manufactures in the State, so far as relates to the city of New Orleans, still that section sixteen of that act is null and inoperative, as the purpose of tliat section is not expressed in the title of the act. Constitution, art. —. We think the title of the act does explicitly express its purposes. It is “ an act to authorize the city of New Orleans to levy a police tax; to' regulate the levies of taxes,” etc.

It is therefore ordered that the judgment appealed from be annulled and reversed, that tne injunction sued out in this case by the plaintiff enjoining and restraining the defendants from carrying on the calling, business, or trade of wholesale merchants until they shall have paid the license-tax claimed by plaintiff, with all costs and charges for the recovery thereof, be perpetuated; that the city of New Orleans recover from the defendants two hundred dollars for license-tax, as claimed in the petition, with five per cent interest thereon from the first day of March, 1875, until paid, with lien and privilege according to law; the defendants to pay costs in both courts.


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    No. 6337.
    State of Louisiana ex rel. Edward Hollander et al. vs. Judge of the Fourth District Court, Parish of Orleans.
    The grounds of rofusal shown by the judge a quo apply to the merits on the appeal, except as to the amount involved and the right to app ;al from a judgmont carrying into effect a tax-collector’s sale, as the revenues of the government must be collected.
    The record shows that the amount involved exceeds live hundred dollars, and. the judgment being a final one as to the issues raised, the relators have a right to appeal from it.
    The court is not aware of any law or principle of law which takes cases in regard to State taxes out of the rule applicable to appeals as established by the constitution.
    APPLICATION for a mandamus against the judge of the Fourth Dls-trict Court, parish of Orleans.

      McEnery, Ellis & Ellis, for relators.

      Judge Lynch, respondent, in propria, persona.

   Howell, J.

The relators were defendants in a rule taken against them by Joseph Billgery as purchaser, to be put in possession of property which he claimed to have purchased at a tax-sale for State taxes, and applied for a suspensive appeal from the judgment making said rule absolute. The judge a quo refused to grant the appeal, and this proceeding was taken to compel him to allow the said appeal. The grounds of refusal shown by the judge apply to the merits on the appeal, except as to the amount involved and the right to appeal from a judgment carrying into effect a tax-collector’s sale, as the revenues of the government must be collected.

We are satisfied from the record before us that the amount involved exceeds five hundred dollars, and, the judgment being a final one as to the issues raised, the relators have a right to appeal from it.

We are not aware of any law or principle of law which takes cases in regard to State taxes out of the rule applicable to appeals as established .by the constitution.

It is therefore ordered that the writ of mandamus herein be made peremptory, and that the judge a quo be ordered to grant the appeal asked for upon appellants giving bond according to law.


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    No. 4950.
    Frederick Fairthorne vs. S. H. Davis, Sr.
    In this petitory action to recover a lot of ground in the city of New Orleans plaintiff relies on a record in the conveyance office of an agreement to sell, by Fletcher Coyle, to one Mrs. Mowbray, under whom he claims as purchaser, and who acquired the lot under private signature from Coyle, who had not alienated the same prior to the sale to plaintiff.
    This instrument is not proven to have been executed by Coyle, as required by article 2253, Revised Civil Code. The registry therefore of the agreement in this ease does not make proof of its execution by the parties, and has no effect against the defendant, against whose good faith nothing appears.
    APEEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      Hornor & Benedict, for plaintiff and appellant.

      Clarice, Bayne c& Benshaw, for defendant and appellee.
   Howell, J.

This is a petitory action to recover a lot of ground in the city of New Orleans which plaintiff alleges he purchased from Mrs, Sarah Adams Mowbray on third December, 1872, by act before a Louisiana commissioner in Philadelphia, Pa., duly recorded here. He further alleges that liis vendor acquired said property from Fletcher Ooyle by act under private signature, dated twenty-sixth November, 1859, and duly recorded in the conveyance office in New Orleans on fourteenth March, 1860, and had not alienated the same prior to the sale to plaintiff ; and that Coyle acquired from E. A. Johnson by act before P. La-coste, notary, on said twenty-sixth November, 1859.

The defense is the prescription of ten years and title by mesne conveyance from said Fletcher Coyle on tenth April, 1861, who acquired from E. A. Johnson.

Judgment was rendered in favor of'defendant, and plaintiff appealed.

The private act from F. Coyle to Sarah Adams (now Mowbray) has not been produced or accounted for; but plaintiff relies on a record in the conveyance office of an agreement of Coyle to sell to her. This instrument is not proven to have been executed by Coyle, as required by article 2253, R. C. C., which reads:

“ The record of an act under private signature, purporting to be a sale or exchange of real property, shall not have effect against creditors or bona fide purchasers, unless previous to its being recorded it was acknowledged by the party or proved by the oath of one of the subscribing witnesses, and the certificate of such acknowledgment be signed by the parish recorder, a notary, or a justice of the peace, and recorded with the instrument.” The registry therefore of the agreement in this case does not make proof of its execution by the parties, and has no effect against the defendant, against whose good faith nothing appears. See 14 An. 599,797; 4 N. S. 355. It follows that plaintiff has not shown a title in his author, Sarah Adams, which can defeat that of defendant from the party from whom it is alleged Sarah Adams also acquired.

Judgment affirmed.


author: Moegañ, J.

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    No. 4706.
    State of Louisiana vs. E. Booth.
    Defendant took a rule to show cause why the injunction taken against him should not he sot aside. The judge dismissed the rule, and considering that the rule was an answer, made the injunction perpetual. This was an error. The rule did not put the matters in contest between the plaintiff and defendant at issue, and the defendant, after the rule was discharged, had a right to file his answer. The case is remanded to give defendant an opportunity of answering.
    APPEAL from the Superior District Court, parish of Orleans. Haw-Mns, J.

      A. P. Field, Attorney General, and H. G. Dibble, for plaintiff and appellee.

      A. Voorlúes, A. J. Lewis, and Julien Michel, for defendant and appellant.
   Moegañ, J.

An injunction issued against the defendant, prohibiting him from carrying on his business, because it was alleged that he had not paid his license. He took a rule to show cause why the injunction should not be set aside. The judge dismissed the rule, and, considering that the rule was an answer, made the injunction perpetual. In this we think there was error. The rule did not put the matters in interest between plaintiff and defendant at issue, and the defendant, after the rule was discharged, had a right to file his answer. We think the case should be remanded to give the defendant an opportunity of answering.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that the case be remanded to be proceeded in. according to law.


author: Taliaferro, J.

text:
    No. 6058.
    Howard & Preston vs. the Mississippi Valley Bank of Vicksburg.
    This is a suit by attachment of the property of the defendants situated in New Orleans, the object of the suit being to recover from the Yallev Bank the amount of various drafts drawn upon the plaintiffs by one of their own customers in the parish of Madison in this State, which drafts were cashed at Vicksburg by the Valley Bank and forwarded by that bank to New Orleans for collection, which plaintiffs paid, and which turned out to be forged and passed off to the Valley Bank that discounted them. The question is which of these parties shall bear the loss arising from the perpetration of this forgery.
    'The drawee of a bill is presumed to have a better knowledge of the signature of the drawer than the holder. It is for him to rely on his own knowledge and means of information on the subject, and not upon presumptions arising from the opinions of others. In this case the plaintiffs had in their possession at the time these forged drafts were accepted and paid a number of other drafts of uitz drawn upon them which they knew to be genuine. They had the means of comparing the genuine signatures of their correspondent with the forged signatures, as well as .various other means of determining the character of the spurious bills. The last two of the series of the forged bills it appears they did refuse, but subsequently paid them, under these circumstances the loss should fall rather upon the plaintiffs than upon the defendants.
    APPEAL from the Fifth District Court, parish of Orleans. Oullom, J.

      J. W Thomas, for plaintiffs and appellees.

      Frank L. Richardson, for •defendants and appellants.
   Taliaferro, J.

The plaintiffs, merchants of New Orleans, bring suit against the Mississippi Valley Bank of Vicksburg, in the State of Mississippi by attachment of the property of the defendants situated in New Orleans, the object of th.e suit being to recover from the Valley Bank the amount of various drafts drawn upon the plaintiffs by one of their customers residing in the parish of Madison in this State, which drafts were cashed at Vicksburg by the Valley Bank and forwarded by that bank to New Orleans for collection, which plaintiffs paid, and which it turned out were forged and passed off to the Valley Bank that discounted them. The defendants filed a general denial, and allege there was gross carelessness in the plaintiffs in not knowing the signature of their customer, and paying forged drafts upon themselves, thereby misleading the bank which took the drafts in the usual course of business in good faith and for a valuable consideration. There was judgment in favor of the plaintiffs,' and the defendants have appealed.

The facts seem to be that a planter of largo business and credit, residing in the parish of Madison, Louisiana, at no great distance from Vicksburg, named Ultz, was in the habit, for the purpose's of his plantation business and engagements, of drawing drafts on the plaintiffs, his factors, in New Orleans, and his drafts were promptly paid when presented. These drafts were in general for sums less than five hundred dollars; few of them as large as four hundred dollars; some of them for about one hundred dollars; and others for less than that amount. They were drawn payable to his own order, indorsed by him, and for the most part discounted by the Yalley Bank at Vicksburg. Seven drafts of this character, which proved to be forgeries, amounting to $1666, were discounted by the Yalley Bank and forwarded by the bank to New Orleans for collection, and they were paid by the drawees on presentation. The question is which of these parties shall bear the loss arising from the perpetration of this forgery. The plaintiffs and defendants mutually charge against each other gross negligence and carelessness, by which each complains they were misled in these operations. The defendants contend that the plaintiffs were bound to know the signature of their customer, and that it was their business to scrutinize the drafts when presented, and to reject them as spurious. The plaintiffs say that upon the face of these instruments it appears defendants took them on the indorsement of the drawer, when in reality they took them from unknown holders without requiring their indorsements. That when presented to plaintiffs they were thrown off their guard by the natural inference that the bank had taken the drafts directly from Ultz himself, and that they were not required to exercise strict vigilance in regard to the genuineness of the instruments under the circumstances of the case. These seven drafts were drawn at short intervals between the fourteenth and twenty-eighth of February, 1874. They were promptly forwarded for collection, and paid on presentation. The continuous act of plaintiffs in accepting and paying these drafts was calculated to induce the defendants to suppose that the plaintiffs knew them to be genuine. The plaintiffs, on the other hand, seem to have relied upon the presumption that the defendants know the drawer and discounted these drafts for him, and received them directly from him. The position relied upon on the part of the plaintiffs seems to bo that the indorsement of the holder recognizes the signature of the payee, on the authority of Story on Promissory Notes, pages from 135 to 180. On the part of the defendants, the issue before the court is held simply to be whether or not the payment of the first of this series of drafts did not cause the defendants to discount the six others presented at short intervals and paid by the drawees. The facts of this case seem to be materially different from those in McCall vs. Corning, 3 An. 414. There the court said that “it is an importantfetítufé in this ease'that the holders were not induced to take the bill by any acts of the plaintiffs,” etc.

The drawee of a bill is presumed to have a better knowledge of the signature of the drawer than the holder. It is for him to rely upon his own knowledge and means of information on the subject, and not upon presumptions arising from the opinions of others. In this ease the plaintiffs, it is shown, had in their possession at the time these forged drafts were accepted and paid a number of other drafts of Ultz, drawn v upon them, which they knew to be genuine. They had the means of comparing the genuine signatures of their correspondent with the forged signatures, as well as various other means of determining the character/ of the spurious bills. The .last two of the series of the forged bills, it appears, they did refuse, but subsequently paid them. We are induced to conclude upon the whole that the loss should fall rather upon the plaintiffs than upon the defendants, and that the judgment of the lower court should be reversed.

It is therefore ordered that the judgment of tho district court be annulled, avoided, and reversed. It is further ordered that there be judgment in favor of the defendants, with costs in both courts.


author: Wyly, J.

text:
    No. 5016.
    Jules Chappuis vs. Robert L. Preston.
    The court below found that the required notice of tho granting of the order of seizure and sale had not boon given to the defendant, and therefore perpetuated tho injunction taken by defendant with'fifty dollars damages as attorney’s fees. Defendant appealed in order to have the damages increased. Tho judge a quo erred in allowing said damages.
    It is only where an injunction is dissolved that the statute allows such damages to be imposed. Appellant was not entitled to the fifty dollars damages allowed by the judge, but, as appellee has not joined in tho appeal praying an amendment in this regard, tho decree can not be changed.
    PPEAL from the Fifteenth Judicial District Court, parish of La-fourche. Beattie, J.

      Arthur F. & Clay KnoUoeh, for plaintiff and appellee.

      E. W. Blake, for defendant and appellant.
   Wyly, J.

Defendant enjoined the executory process sued out against him on the ground that the sheriff had seized and was about to sell his property without having given him notice of the granting of tho order of seizure and sale, and he also prayed for one hundred and twenty-five dollars damages as attorney’s fees. The court found that the required notice of the granting of the order of seizure and sale had not been given to defendant, and therefore it perpetuated the injunction with fifty dollars damages as attorney’s fees. From this judgment R. L. Preston appealed. The ease was submitted without argument, and no briefs have been filed by either party.

The evident object of appellant is to have the damages increased to one hundred and twenty-five dollars, the amount prayed for in the petition for injunction. The only error wo find in the case is tho error the judge committed in allowing any damages as attorney's fees. It is only where an injunction is dissolved that the statute allows such damages to be imposed. Appellant was not entitled to the fifty dollars damages allowed by the judge, but as appellee has not joined in the appeal praying an amendment in this regard the decree can not be changed.

It is therefore ordered that the judgment be affirmed. It-is further ordered that appellant pay costs of the appeal.