author: Fenner, J. Bermudez, C. ■ J.

text:
    No. 6802.
    State ex rel. Liversey et al. vs. Judge of Civil District Court.
    By our Bill of Rights the “press ” ia free from all censorship over what shall he published, and entirely exempt from control, in advance, as to what shall appear in print.
    Courts in this Slate are therefore absolutely without authority to control in advance or .to restrain by injunction, the liberty eDjoyed by the “ press ” to publish what even may he of a libellous nature, the party injured having his remedy after the publication.
    The Court having no power to grant such an injunction; it was an absolute nullity, and the condemnation of defendants for oontempfc falls with the injunction, the moment such nullity hag been pronounced by this Court, which has supervisory jurisdiction in oases like tíre one at bar.
    APPLICATION for writs of Certiorari and Prohibition. F. A. Monroe, Judge Civil District Court, Respondent.

      Nieholls <& Garroll, for Relators.

      Jno. M. Bonner, for Plaintiff in Injunction.
   Tile opinion of the Court was delivered by

Fenner, J.

In a certain suit, before tbe Civil District Court for the Parish of Orleans, entitled W. Van Benthuysen vs. Liversey et al., the plaintiff represented, substantially, that, t.be defendants, as proprietors and publishers of a certain newspaper of this City, known as The Mascot,” bad theretofore published certain false, malicious and libellous cartoons and editorial paragraphs, libelling and defaming him, and designed and calculated to injure and destroy bis character and reputation as a man and a citizen. He further represented that he feared thattlie wicked, wanton and malicious libels, which had been made 'upon him in a prior issue of said newspaper, would be repeated in the next and in other future issues, and would thereby inflict upon him further irreparable injury and damage; wherefore, he prayed for and obtained, on a bond of fifty dollars, a writ of injunction, enjoining, restraining and prohibiting the said defendants and each of them from publishing or causing to be published in any manner, and particularly in ‘ The Mascot,’ to he issued on the 29th of April, 1882, or in any and all future issues of said ‘ Mascot,’ any defamatory cartoon or caricature of petitioner, and from naming or alluding to petitioner in any way calculated to disparage him in the estimation of the community, and that after due proceedings are had herein, said injunction may be made perpetual.”

No other relief was asked.

After the issue and service of this injunction, which issued according to our practice ex parte, the plaintiff, averring the defendants, had wilfully disregarded and disobeyed said injunction by publishing in a subsequent issue of the Mascot, grossly libellous matter against liim, took a rule upon defendants to show why they should not be punished for contempt.

In return to this rule, the defendants filed their answer, substantially averring that their right to publish a newspaper, and to express and insert therein, without prior restraint, what they, as editors and proprietors, think right and proper, is protected by the fundamental principles of republican government and by the Constitutions of the State and of the United States; that courts have no power, by injunction, to abridge, destroy or restrain the exercise of this right; that the injunction issued was improvident and beyond the jurisdiction and power of the court; that they were not bound by the same, but that their constitutional right continued as if the same had not been issued ; that as to the question of fact whether the publications charged as violative of the injunction, were or not libellous or defamatory of plaintiff, that was a question upon which they were entitled to a hearing and to a trial, and to a trial by jury, if they so desired, and that the Judge was incompetent to pass upon the saíne on a rule for contempt, and could not do so without prejudicing the merits of the case ; and, disclaiming any intention to be in contempt of the court, they asked that the rule be discharged.

Thereupon, the court, after hearing evidence on the part of plaintiff, defendants offering none, made the rule absolute, and committed the. defendants to imprisonment in the Parish Prison for the term of ten days, which sentence is now in process of execution.

The said defendants, appearing as Relators in the instant cause, upon appropriate, allegations, the nature of which may be inferred from the, foregoing statement, apply for the writs of certiorari and prohibition, and pray that all of the proceedings in the said suit of Van Benthuysen vs. Liversey et al., including the injunction, be decreed to be absolutely null and void, and that the same be set aside, and that further proceedings in the cause be prohibited.

I.

It is to be observed that the power of the District Court to take cognizance of the cause referred to, depends entirely upon its power to issue the preliminary injunction applied for. The only relief sought is, in limine, the injunction, and, on final hearing, a judgment perpetuating the same.

If we hold that the court was without power to issue, the preliminary injunction, and should annul the same, that would be an end of the suit, because it would eliminate the entire subject matter thereof.

II.

The Constitution of the State of Louisiana contains a Bill of Rights. Such Bills are modelled upon the famous English Bill of Rights, and, in the language thereof, are intended as public declarations of the “ true, ancient and indubitable rights of the people.” They are declaratory of the general principles of republican government, and of the fundamental rights of the citizen, rights usually of so fundamental a character, that, while such express declarations may serve to guard and protect them, they are not essential to the creation of such rights, which exist independent of constitutional provisions.

In our Bill of Rights, side by side with the rights of bearing arms, of religious freedom, of free speech, of assembly and petition, of habeas corjms, is found the declaration that “ no law shall be passed abridging the freedom of the press.”

A similar provision has existed in every Constitution of this State, exists in the Constitution of the United States and that of every State of this Union. It is a principle of English and American government, and whatever variety may be found in the forms of expression used in different instruments, they all signify the same thing, and convey the general idea which is crystallized in the common phrase, “ liberty of the press.” This is what the Constitution intends to recognize and to guarantee, and in order to ascertain what meaning and effect to give to the Constitution, we have only to inquire what is meant by “liberty of the press.”

We have not far to go. Even so elementary a work as a law dictionary fully defines the phrase as follows : “ This expression imports freedom from any censorship over what shall be published; exemption from control in advance over the dissemination of ideas by printing. It does not import that one may not be mulcted in damages or punished’ for what he has published, if, after the act, it is shown to be contrary to law, but that he shall not be restrained beforehand. The favorite idea in England and America has been that every person may freely publish what he sees fit, and any judgment of the law upon it shall be reserved till afterwards.” Abbott’s L. D., “ Liberty of the Press.”

Perhaps in the whole range of legal propositions, susceptible of dispute, there is not one that commands so unanimous a concurrence of judges and jurists.

“ Liberty of the press,” says Delolme, “consists in this: that neither courts of justice, nor any other judges whatever, are authorized to take notice of writings intended for the press, but are confined to those which are actually printed.” Delolme, Const. of Eng. 254; 4 Blackstone Com. 151; Story on the Const. § 1889; 2 Kent’s Com. 17, et seq; Cooley’s Const. Lim. 420, et seq.; Townshend Slander and Libel, § 252.

The Constitutions of several of the 'States contain provisions expressly embodying the above ideas. Thus that of Maine says :

Every citizen may freely speak, write and publish his sentiments on any subject, being responsible for the abuse of tills liberty.”

So in those of New York, New Jersey, Pennsylvania, Delaware, Maryland, Ohio, Illinois and numerous other States. Although the provisions in these several Constitutions are fuller in expression than that of our own, they are generally found like ours, in Bills of Rights, and are merely intended to convey the recognition of the same general principle, “ liberty of the press ” as a fundamental right of the citizen. We are to construe and give effect to our provision, precisely as if it declared, in the language of the Constitution of Minnesota, the liberty of the press shall forever remain inviolate, and all persons may freely speak, write and publish their sentiments on all subjects, being-responsible for the abuse of such right.”

III.

Having thus concluded that the meaning and effect of Art. 4 of the Bill of Rights in our present Constitution are to proclaim and guarantee the principle of “liberty of the press,” as understood and established by English and American law, and having ascertained the extent and meaning of that principle, we are next to inquire whether any court can have power, airthority or jurisdiction to restrain, suspend or abridge the exercise, by any citizen, of a right declared absolutely to belong to him by the Bill of Rights embodied in the fundamental law of the State. Courts necessarily derive all their powers from the Constitution and laws of the State. They can have no power which the Constitution withholds and which no law could confer upon them. It will be admitted that there are many human rights entirely beyond the control of judicial power. A court’s injunction prohibiting a man from eating, or drinking, or walking, or lying down, would, of course, be the merest bruturn fubnen. Perhaps few would deny that an injunction restraining a citizen from bearing arms, would be equally inoperative; or one restraining citizens from assembling and petitioning the government for redress of grievances; or one prohibiting the free exercise of religion. Why? Because these are fundamental rights, recognized and declared to be such in the Bill of Rights. But how can a different rule be applied to any other right similarly guaranteed by the same Bill of Rights ?

Suppose the Legislature were to pass a law authorizing any person, on presenting a petition to a court representing that he feared that the proprietors of a newspaper, or other parties, would publish, or cause to be published, libellous or defamatory matter concerning him, to obtain from the court au injunction restraining the publication of such matter, and authorizing the court to grant such injunction, and, during its pendency, to supervise the publications of such defendants on rules for contempt, and to decide for itself, without trial by jury or in ordinary form, and without appeal, upon whether the same were libellous and defamatory, iu contravention of the injunction, and in case of so finding, to punish the defendants for contempt, and, under like circumstances, to repeat said punishment as often as occasion might require — would any one question the unconstitutionality of such a law 1

It would establish a complete censorship over the press so enjoined. No legal distinctions are nicer than those concerning libellous and defamatory publications. Some are privileged and others non-privileged. How should defendauts determine whether their publications were innocent or offensive 1 What they consider innocent, the judge might consider libellous. There would be no safe course, except to take the opinion of the judge beforehand, or to abstain entirely from alluding to the plaintiff. What more complete censorship could be established ? Uuder the operation of such a law, with a subservientor corrupt judiciary, the press might be completely muzzled, and its just influence upon public opinion entirely paralyzed. Such powers do not exist in courts, and they have been constantly disclaimed by the highest tribunals of England and America. It has passed into a settled rule of jurisprudence, that courts of equity will not lend their aid to enjoin the publication of libels or works of a libellous nature; eveu though the libellous publication is calculated to injure the credit, business or character of the person against whom it is directed.” High on Injunctions, §§ 1015, 1093, and numerous authorities cited.

In England and in the common law States of this Union, courts of equity alone have power to issue injunctions. They decline to do it in such cases, on the two-fold ground that they have no such jurisdiction, and that the remedy at law is ample. What is the remedy at law ? Nothing but an action for damages or criminal prosecution. Those remedies exist under our law as amply as elsewhere, and they are the only remedies.

We cannot admit that the liberty of the press is less secure in Louisiana than in England, or in other States of this Union, or that courts have greater powers to control and restrain it here than elsewhere. Cases exist of authority, perhaps doubtful, in which courts have interfered to prevent the continuous publication of a particular hurtful advertisement, or of special statements- or notices injurious to the business of another; but no court in England or in this country has ever, in modern times, assumed the power to issue a sweeping injunction prohibiting a person generally from publishing any defamatory matter whatever concerning another, or “ from naming or alluding to him in any way calculated to disparage him in the estimation of the community,” like the one issued in the present case. We are compelled to hold that if there existed any law authorizing a court to issue such an injunction, it would be grossly unconstitutional. The .exercise of such authority by a court is a direct violation of the Constitution, ultra vires, and is absolutely null and void.

IV.

Holding the injunction to be an absolute nullity, what is the effect upon the proceeding for contempt? The general rule, in matters of injunction, is, that where the court had no power to grant the injunction, and where the mandate is, therefore, absolutely void, the defendants cannot be punished for contempt for its alleged violation. Dwarris on Stat. p. 542; Freeman on Judgments, § 137; High on Injunctions, $§ 1425 and 1286, and authorities there cited.

Thus, it is said, “where the law imposes an absolute duty on a public officer and the court commands him not to perform that duty, he must obey the law and disobey the order of the court.” So, when the Constitution, in its Bill of Rights, recognizes and declares the existence of an absolute and fundamental right in a citizen, and a court enjoins him from the exercise of such right, he is authorized, always at his risk, to follow the Constitution and not the order of the court. This is not meant to authorize resistance to the orders or processes of the court while the same are operative. He must endure the consequences of his disobedience until, in some orderly course of procedure, he procures from competent authority the annulment of the mandate claimed to be unconstitutional and void; but the moment such annulment is pronounced, his condemnation for contempt falls with it, and his sentence, though not completely executed, expires.

The case, of State ex rel. Follett vs. Rightor, 32 A. 1182, contains •matter apparently opposed to this view. But that case dealt with questions and rights much less fundamental in their character than those here presented, and is, in many respects, distinguishable from this.

Besides, in the exercise of our supervisory jurisdiction, under Art. 90 of the Constitution, we are not absolutely controlled by technical rules of proceeding.

As before intimated, we regard the injunction herein as standing upon the same plane as an injunction restraining a citizen from bearing arms-or from'exercising the most sacred right, and it, therefore, furnishes a case for the liberal exercise of our supervisory power.

We have, heretofore, laid down general rules by which we should be guided in the administration of this extraordinary power, and we will not be accused of a disposition to stretch the same. But, in view of the obvious purposes had in view by the framers of the Constitution, we have been careful to reserve our discretionary right to make exceptions to such rules, in cases of urgent public importance and interest such as we consider the present one to be. State ex rel. City vs. Judge, 32 A. 540; State ex rel. Sinnott vs. Falls, Id. 553.

In conclusion, we would disclaim all intention to reflect upon the motives or even the conduct of the distinguished judges whose action we have reviewed. No officers of this commonwealth would be less likely, knowingly, to assault the liberty of the press or the constitutional rights of any citizen.

It is to be remembered that the questions are new in this State; that the judge who granted the injunction was called upon to act instanter on the face of the papers, and without the opportunity which we have had of examining the matter, and that the judge'who acted on the proceeding for contempt, was considering merely ■ the violation of a mandate, not issued by himself, but by a brother magistrate.

We join the counsel in this case, in common with all wise and just men, in reprobation of abuses of the liberty of the press. It is the duty of all good citizens, as well as magistrates, to apply vigorously and fearlessly the remedies which the law provides for such abuses, both civil and criminal.

Nothing would threaten the permanence of the liberty of the press so gravely as its degeneration into unbridled licentiousness.

But libel and slander, like other crimes and offenses, are the subjects of punitory, and not of merely preventive, remedies. The Constitution rules over all.

It is, therefore, ordered, adjudged and decreed, that all the proceedings in the matter No. 5923, on the docket of the Civil District Court for the Parish of Orleans, entitled, W. Van Benthuysen vs. Jos. Liversey et al., be declared null and void, and be set aside.

The Chief Justice dissents, and Justices Poché and Todd concur iix this opinion and reserve their right to file concurring opinions.

Dissenting Opinion.

Bermudez, C. ■ J.

The only questions which can be inquired into on this application for a certiorari and for a prohibition, relate to the regularity of the proceeding and to the jurisdiction of the court..

The case on the rule for contempt is an indepexxdent proceeding, upon which the suit for an injunction can have no other bearing than that it is a judicial proceeding, in which a writ of a prohibitory character has issued to parties who are now the Relators before this Court.

Whether the writ of injunction was properly or improperly allowed, is not a question for investigation and determination in the present proceeding, provided the court which granted it had jurisdiction over the subject matter in which it was sought. If it had that jurisdiction, even doubtfully, the legality or illegality of the writ, cannot be tested in this proceeding, for the obvious reason that it would be deciding not only the right to the conservatory process, but also the merits of the injunction suit, in independent and disconnected proceedings, not at all germane, contradictorily only with the judge of the court whose dignity, it is alleged, was offended. It is putting an immediate end to the injunction suit.

It is only where a court, under no possible circumstance, can have jurisdiction over a subject matter and issues therein án .injunction, without any authority at all, that a disregard or violation of its prohibitory orders can be justified; but wrhere it may well be that the court has jurisdiction, and where it is apparent that a plea to its jurisdiction has not been made and, therefore, not overruled, a violation of the writ may well be visited with the punishment which all courts have the inherent power of inflicting.

If, for instance, a court was to issue an injunction restraining the Legislature from assembling, the Governor from exercising his functions, this Court from discharging its duties, a citizen from bearing arms openly, any person from the free exercise of his religion, the people from peaceably assembling, citizens from petitioning the government for a redress of grievances, the editors or proprietors of a newspaper, or any individual from publishing anything at all, without previously obtaining permission or authority to do so, an infringement of such injunction, however wilful, intentional, open and repeated, could not be punished for contempt, because it would be manifest that on the face of the writ, the court could, under no imaginable circumstance, be justified in making sueli orders, and because the infraction of the same could, in no conceivable case, work any injury, for which a suit in damages would lie, inasmuch as the exercise of constitutional rights can wrong no one, in any supposable contingency.

In the present case, the proceeding by rule for contempt was regular, and the court had jurisdiction to punish for contempt, if it thought the writ had been violated.

It does not appear that a preliminary defense has been filed and overruled in the injunction suit. It is not pretended that the District Court usurped the jurisdiction belonging to another court.

Tt is claimed that it has no jurisdiction, no power, over the subject matter of the suit, that it cannot entertain the demand, hear, try and determine the questions presented, and, therefore, could issue no injunction in protection or vindication of- the rights averred by the plaintiff in the suit.

If the case be unappealable, a prohibition, on proper averments, would bring up the question of power or jurisdiction, raised as to the main suit, so as to enable this Court t.o express an opinion on the ■subject. If it be appealable, the same question of power or jurisdiction could be reviewed on appeal.

Until the wise and solemn requirements of the law shall have been observed, to test the power or jurisdiction of the District Court in the injunction suit itself, this Court has no authority to overleap the barrier imposed by law.

Whatever may be the provisions incorporated in the paramount law of the land and in the local organic law, protective against an abridgement of the freedom of the press, and whatever may be the privileges and immunities thereby secured, it is not manifest that the District Court, had no jurisdiction over the subject matter and could not have issued and enforced the injunction.

Two District Judges of learning and ability, of undoubted integrity, one making the order for the writ and another enforcing obedience to it, cannot be so blind, ignorant or reckless, as to have unheeded the constitutional safeguards invoked or dealt lightly with the question presented.

They may have consulted a different law dictionary, Bouvier’s for instance, which enjoys some popularity, and which defines liberty of the press t.o be the right to print and publish the truth from good motives and for justifiable ends,” referring to authority.

Hence, as such want of.power or jurisdiction over the subject, matter was not. dazzling, the action complained of should not be presently disturbed, on the ground of the absence of such power. It is safer and wise, t.o wait until the issue is presented in the suit itself. It would have been better practice to have sought relief in the case, itself, which this Court might have, granted, in the exercise, of its supervisory powers, in a, case of importance or urgency.

However probable it be, that on the trial of an issue in the injunction suit, it might beheld that the remedy should not have been allowed, it should not be so declared now, in the absence of the plaintiff, who has not had his day in court, and contradictorily alone with the District Judge. It is only when the time comes and when the matter is properly presented, that the question can be legally solved.

Provisions of equal sacredness and magnitude, in both systems, loudly proclaim that all courts shall be open, that every person shall be en titled to claim protection for life, liberty, property, reputation and for all rights, and shall have adequate remedy by due process of' law, and justice administered without denial or unreasonable delay.

A suppression of either of those inalienable rights, would be an arrogation of powers intentionally denied and withheld, and a despotic, annihilation of the palladium of American security and independence.

Levy, J., absent.


source: Caselaw Access Project

author: Pociié, J.

license: Public Domain

text:
    No. 8582.
    State of Louisiana vs. John Patamia.
    The power of the City of New Orleans to inflict fine or imprisonment is confined and restricted to transgressions of ordinances under its police power, and cannot be extended to transgressors of ordinances looking to revenue, Reaffirming Municipality vs. Pance, 6.A. 515: and State vs. Mauessier, Opinion Book 53, p. 237.
    -A.PPEAL from the Second Recorder’s Court of New Orleans.

      O. F. Buck, City Attorney, Wynne Rogers, for Plaintiff and Appellee :
    Ordinance No. 7668, A. S., is not repugnant to the provisions of Arts. 1, 203, 218 and206 of the Constitution of 1879.
    “It does not interfere with the citizen in the enjoyment of life, liberty and property.” Jt is not a tax upon property, nor a license to pursue any particular calling
    Ordinance No. 7668, A. S., is a prohibitory one. Tt prohibits the sale of comestibles at certain places and at certain hours of the day, as mentioned in its provisions.
    The penalty is for the violation of the prohibitory clauses of said ordinance, and not to enforce the collection of any dues mentioned therein.
    The general powers of the City under its charter are sufficient to warrant their enacting the necessary ordinances, controlling the management of public markets aud the sale of comestibles, in the interest of the public. 2 La. p. 217; 27 An. p. 417; Lamarque vs. City of New Orleans, 1st McGloin. p. 28.
    Those comestibles were sold at and on tbe wharves of New Orleans, within her corporate limits.

      W. 0. Flower, M. Renshaio, Jr., for Defendant and Appellant:
    The ordinance complained of is opposed to the following articles of the Constitution of 1879. viz: Arts. 203, 218, 206, and 1; aud also to Sec. 12, ($§19-20) of the Charter of New Orleans. (Act 7 of E. S., of 1870.)
    The ordinance is unreasonable; is in restraint of trade, and is not impartial. — 16 Pickering, 125 ; 5 Cowen, 462.
    The City has no authority to enforce the collection of taxes, licenses, or dues, by fine or imprisonment. — See oases of Municipality No. 1 vs. Pance, 6 An. 515 ; and case of State vs Mannessier, (Opinion Book No. 53, p. 237.)
    The ordinance is ultra vires.

    It deprives one person of his property for the benefit of another, without any corresponding advantage to the person so deprived, — 31 An. 66.
    The ordinance assumes to operate beyond the corporate limits of New Orleans.— Act 7 of E. S. of 1870, § 1 and 2; 5 La. 465; 17 La- 574; 9 A. 323.
   The opinion of the Court was delivered by

Pociié, J.

This is an appeal from a sentence of ten dollars fine and, in default, to an imprisonment of twenty-four hours, and it involves the legality of Ordinance No. 7668, Administration Series, of New Orleans, which defendant admits to have violated, by selling potatoes within the prescribed limits and hours, and which reads as follows:

“Be it ordained, That Section 24 of Ordinance No. 6784, be amended and re-enacted, so as to read as follows :
“That n.o person shall be permitted or allowed to sell from any lugger, pirogue, flatboat, or other small craft, landing or lying between the lower line of St. Ann street, and the upper line of Esplanade street, during market hours, any fruits, vegetables, or other articles of food usually sold in the public markets, without paying to the Administrator of Commerce, or the market lessee or lessees, the sum of one dollar per day, for evéry day they are so selling; and any person violating the provision of this Ordinance, and this Section, upon being found guilty thereof, before the recorder, or police magistrate, having jurisdiction, shall be fined in a sum.not less than ten dollars, nor more than twenty dollars, or imprisoned for a term not to exceed ten days.”

Among other errors charged by the defendant, he urges that under the laws of the State and under its charter, the City of New Orleans has no power to enforce the collection of its revenues by fine or imprisonment.

The defense involves the proper construction of the ordinance under which the defendant has been prosecuted and condemned to pay a fine, or to be imprisoned.

The ordinance does not make it an absolutely penal offense to sell potatoes within the prescribed limits, but the penalty attaches to the party who carries on that trade without first paying the sum of one dollar a day for every day on which he may sell. Hence, it is clear that the Act in itself is not prohibited, but, on the contrary, it is specifically authorized on the condition stipulated in the ordinance. It is, therefore, impossible to escape the conclusion that the ordinance is framed with the evident intent and object of raising a revenue, and that it cannot be tortured or explained out of its true and unambiguous meaning, so as to be construed as an ordinance depending upon the police power of the City.

In the ease of the State vs. A. Manessier, Opinion Book No. 53, p. 237, we had occasion to construe and pass upon a similar ordinance, and we held that it was illegal and could not be enforced.

In that case the defendant was prosecuted for selling ice-cream without paying the required license, and he had been sentenced under an ordinance providing a penalty by fine or imprisonment, against persons following that trade without paying their license.

We then held that the only power of inflicting fine or imprisonment conferred to the City of New Orleans, “ was for the punishment of transgressions of police regulations,” and that such power could not he extended to ■“violations of ordinances looking to the raising a revenue for the City.”

A similar ruling was made in the case of Municipality No. 1 vs. Pance, 6 An. 515.

We see no feature in this case differing from these two cases, and we must hold that part of the ordinance which provides a penalty by flue or imprisonment for its infraction, as illegal, null and void.

We abstain from any expression of opinion on the other defenses urged by the defendant, involving the right of the City to exact the payment of dues or license for the privilege of following this particular trade within the limits prescribed in the ordinance.

It is, therefore, ordered, adjudged and decreed, that the sentence of the Recorder’s Court be annulled, avoided and reversed, that the prosecution against John Patamia be dismissed, and that he he discharged from arrest and custody.

Bermudez, C. J., concurs iu the decree.

Levy, J., absent.


author: Pocilio, J.

text:
    No. 8483.
    Gabriel Utz vs. Lovell Utz and H. W. Peck, Sheriff.
    Where two separate notes secured by the same mortgage are drawn in favor of different individuals, either mortgagee may sue to enforce his mortgage rights without a joinder of the other.
    A verbal acknowledgment of a debt made to any person, whether iu the presence of the creditor or not, will interrupt prescription.
    APPEAL from the Eighth Judicial District Court, Parish of Madison. Delomy, J.

      J. W. Montgomery, J. C. Seale, for Plaintiff and Appellee:
    1. The burden of proof of the interruption of prescription of a promissory note after prescription has accrued, falls upon the holder, and an indorsement of a payment after it is proscribed is not sufficient to interrupt prescription. The parol testimony of the holder is not admissible to establish the interruption. Written proof alone is admissible. 21 A. 293.
    2. A partial payment indorsed on anote without other proof as to date and payment, will not interrupt prescription. 11 R. 449; 4 A. 419.
    3. A conditional offer to pay a note, not accepted by the creditor, will not interrupt prescription. 11 A. 184.
    4. A promise to settle, provided a claim in compensation he allowed, will not interrupt prescription. 11 A. 83.

      5. Admission of the execution of a note with the assertion that it was not really due, because extinguished by compensation will not interrupt prescription, so if the admission he made with the assertion that is subject to a future settlement with the holder. 11 A. 212.

      II. F. Wells, J. JB. Stone, for Defendants and Appellants :
    Any verbal acknowledgment of a debt will interrupt prescription. C. C. 2519, 3552.
    The acknowledgment need not be made to the creditor himself, but may be made to any one. C. C. 3519, 3552; 2 A. 314; 3 A. 323.
   The opinion of the Court was delivered by

Pocilio, J.

Plaintiff resists the execution of a mortgage securing a note of $4,000, executed by him on August 5th, 1867, and rests his injunction on the following grounds :

1. That the mortgage being a joint contract in favor of Henry S. Utz and Lovell Utz, neither one has the right to proceed alone.

2. That Lovell Utz has shown no cause of action for executory process.

3. The extinction of the debt by the prescription of five years.

First. The act of mortgage itself answers the first ground. It was intended, as it purports, to secure two notes: one described as the property of Henry S. Utz, and tlie other now sued on as the property of the defendant in this case. The mortgage, therefore, enured to the benefit of each note separately, and clearly recognized the power of either mortgagee to enforce his rights at his option, without reference to, or joinder of, the other mortgagee.

Second. The second ground is manifestly frivolous, and has not even been pressed on appeal, as the seized debtor evidently relies solely on bis plea of prescription.

Third. As the note is prescribed on its face, the defendant concedes that he has the burden of proving an interruption of prescription.

In order to accomplish this he offers his own testimony, showing repeated acknowledgments of the debt by plaintiff, beginning at the first year after the execution of the note, renewed every year until the time of filing his suit in executory process, and he also offers the testimony of several other witnesses who, in our opinion, fully corroborate his evidence on every material point.

True that testimony is flatly contradicted by plaintiff, who swears that he has never made an unqualified acknowledgment of his indebtedness on the score of this note.

But the preponderance of the evidence largely weighs in favor of defendant’s position, and proves conclusively to our minds a valid and legal interruption of prescription on the note in suit, l>y acknowledgments of the debtor, by a part payment made in 1870, and by acknowledgments made to third parties in 1872 and in 1875.

It is no longer an open question in our jurisprudence, that such acknowledgments, even when made to third persons and not in the presence of the creditor, operate a valid, legal and binding interruption of prescription. C. C. 3519; C. C. 3552; 2 A. 314, Erwin vs. Lowry; 3 A. 324, Succession of Harrell.

. Plaintiff contends that written proof alone is admissible to show interruption of prescription, and lie relies on the decision in 21 A. 293, Offut vs. Chapman.

. But that decision, which is predicated on Act No. 208 of 1858, now Art. 2278 of our Civil Code, does not bear him out, for it treats of an attempt to show, by parol testimony, an acknowledgment of a debt evidenced by writing after prescription had acquired on the note.

: A broad distinction exists between acts of a debtor which have the effect of interrupting prescription, while it is running, but before it has been reached or acquired, and acts of a debtor, having for object to talce a debt out of prescription, after it has been acquired.

In this case, the first act of acknowledgment of the debt by plaintiff is alleged to have accrued in 1868, the second inT870, long before the year 1872, during which prescription would have acquired, if not previously interrupted.

The judgment of the lower court was- in favor of plaintiff, and is erroneous.

It is, therefore, ordered, that the judgment appealed from be annulled, avoided and reversed ; and it is now ordered, adjudged and, decreed, that plaintiff’s injunction be dissolved, and his action dismissed at his costs, in both Courts.

Rehearing refused.


author: Fenner, J.

text:
    No. 8428.
    Page M. Baker et al. vs. The Louisiana Portable Railroad Co.
    As a general principle, courts have no jurisdiction to appoiutreceivers for corporations in the absence of express statutory authority.
    This Court has recognized no exceptions to this rale, unless when the corporate property is abandoned, or when there are no persons authorized to take charge of or conduct its affairs.
    Such power has never been claimed in case of an existing corporation, whose charter has neither expired nor been declared forfeited, and which is equipped with competent officers.
    APPEAL from the Civil District Court for the Parish of Orleans. Jifonroe, J.

      A. Goldtlmcdte, for Plaintiffs and Appellants:
    Corporations may be equitably liquidated in a court without a forfeiture of charter or dissolution.

      "When a majority of the shareholders refuse to administer a corporation and hold nó election for officers and abandon its affairs, a court, under Article 21, C. C., will interfere in behalf of a minority, and liquidate the affairs of said corporation.
    Shareholders who have paid up their shares have a right to recover the excess they have paid over what the ordinary shareholders have paid, from the corporation. 3 Rob. 510.

      Nicholls & Garroll, for Defendant and Appellee :
    Proceedings brought as tutrix of parties who were really majors when suit was brought, are radically null ab initio, and must be commenced anew.
    The majors interested in the subject matter of the suit cannot adopt and ratify the proceedings so as to authorize the further prosecution of the suit, under the original petition and citation.
    That which lias no legal existence, cannot he ratified. Tutorship is limited to minors. It is legally impossible that majors should appear in court through a tutor.
    It is of the essence of valid legal proceedings that the initial proceeding, when brought by a party claiming to hold a trust derived from the law aud nob from contract, should he instituted in a capacity possible under the law.
    Parties with proper capacity from first to last, are essential to the validity of legal proceedings. Dugas vs. Truxillo, 15 A. 116 ; 3 La. 300.
    “Trusteeship,” as conferring legal capacity under such designation to institute suits for another person, is unknown in Louisiana.
    After exception taken to plaintiff’s capacity, facts which are necessary to be proved to sustain the capacity must be shown by evidence regularly taken, and not by mere recital in act sous seing prive.

    Rights of parties on exception must be tested by state of affairs existing when exception was taken.
    On the Exception — Ho Cause of Action.
    The holder of “fully paid up” stock, in an “insolvent” corporation, “owing debts it is wholly unable to pay,” is without interest to ask that the corporation assets and affairs should be placed in the hands of a receiver. Under Section 690, of the R. S., he has nothing to fear from the continued possession of assets by the corporation officers, and on the other hand, he has nothing to hope or gaiu from winding up tho corporation. If creditors or the State are interested in bringing this about, it is for them to act. 3 Rob. 325.
    The whole body of express law, on the subject matter of this litigation, is found under the heading of Sequestration in the O. P., and in Sections 688 and 731 of the R. S. Plaintiffs do not pretend to fall under the provision of such laws or to he acting under them in this proceeding.
    The plaintiffs claim that the courts of Louisiana are auth >rized, not by Statute, but under general equitable powers, to take, without bond or security, at tho instance of a stockholder, the property of an existing corporation, out of the possession, control and administration of officers legally in office under the charter, and transfer them to the possession, control and administration of a receiver appointed by tho court.
    Tho defendant denies.the existence of any such right or power on the part of our courts High on Receivers, Secs. 287, 288, 298 and 749; Drench vs. Gifford, 30 Iowa, 148; 3* Oregon, 77. ,
    If such «power existed, it could only exist as incidental and ancillary to a suit for the dissolution of the corporation or forfeiture of its charter, and then only after judgment. High on Receivers, Sec. 307.
    Dissolution or winding up of a corporation can bo accomplished only in two ways by stockholders:
    1. In the manner provided for in the charter, if the charter determines the method.
    2. In the mode prescribed by the general law, (Sec. 687, R. S.,) if the charter be silent on the point. Brice, p. 636, note; Ibid, p. 7$2; 1 Cal. 56. Courts are powerless to break up the contract of the parties, or to stretch their authority to frame remedies not given by law. 10 Md. 500; Uhl vs. Dillon, 32 An. 1225.
    Omission on part of managers of a corporation to do some act or wrong on their part, either accomplished or about to be accomplished, does not authorize an attaok against the body corporate, (3 Oregon, 77) or the placing of its affairs in the hands of a receiver.
    The remedy is either by mandamus to enforce the duty, or by injunction to restrain the wrong, or displacement of the board, either through an election or through a general meeting of stockholders. High on Receivers, §740; Brice, Ultra Vires, p. 670 (Note); Angelí & Ames, Corp. § 700; Samuel vs. Halladay, Wool, 400; 3 Oregon, 77; 6 Barb. 397; 10 Nev. 167.
    The board must have been called upon, apd refused to perform the aot, the omission to do which is complained of, and these faots must be alleged.
    The failure to do the act must have resulted in injury: had the act been done and-matters would still be as they are, the complaint is groundless, as where it is affirmatively shown that acts of omission or of commission by a managing board would be approved and confirmed, if submitted to a general meeting of stockholders.
    So, a failure to order an election for directors amounts to nothing, when the complaining party affirmatively shows that had an election taken place, the same board would have been re-elected.
    It is no part of the duty of a board of directors to inaugurate proceedings to dissolve and wind up the corporation.
    .The courts of Louisiana have carefully refrained from the appointment of receivers. They have confined themselves to consent cases, in which the receiver is really the agent of the parties and not strictly an officer of the court, and to cases of property abandoned, or not in the control and possession of any particular person, and which property, being subject to claims of various parties, had to he taken possession of and administered for common benefit. Counter authorities are either mero obtiter dicta or decisions failing to undo accomplished facts where objections have been either collaterally raised or raised too late. 4 R. 517; 11 R. 418 ; 16 A. 238 ; 24 A. 349 ; 30 A. 162; 31 A. 64, 825.
    A party claiming the exercise of equitable powers, must have shown diligence and not acquiesced in the state of facts on which he bases his application. Laches bar the relief asked. High on Receivers, Section 314.
    More differences of opinion between a minority of stockholders and the managing body of a corporation, on subjects of internal management and economy, involving questions of judgment and policy, are not adjustable in the courts, and cannot be made the basis for a sequestration of corporation assets and the appointment of a receiver. The will of the majority is supreme, with the limitation that that will must not he violative of law, and must not involve breach of trust or fraud. See the leading case of Foss vs. Harbottle, Biice’s Ultra Vires, pp. 664, 665 and 668; Gregory vs. Patohett, 33 Beav. 595; Gray vs. Lewis; L. R. 8 Eq. 526; MoMurdo vs. Northern Railway Company; Hedgos vs. Paquet, 3 Oregon, 77.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiffs allege, in substance, that they are holders of full paid stock in the defendant corporation; that other stockholders have paid up only fifty per cent, of their shares; that the corporation has ceased active business, and is insolvent; that the existing officers and directors wilfully avoid and refrain from liquidating the affairs of the corporation by calling in the unpaid stock and, after settling the debts, by distributing the surplus in such manner as to make the stockholders equal; that upon such administration and liquidation, plaintiffs would be entitled to receive a large sum, exceeding ten thousand dollars; that the existing directors hold only half-paid stock, and are interested against enforcing such liquidation ; that the majority of the stockholders also hold half-paid stock, and have like interest against such liquidation and, on a new election of directors, would .choose those who would continue the policy of the present board ; that they have, in accordance with law, applied to the attorney-general to take proceedings for forfeiture of the charter of the corporation, which that officer declines to do; wherefore, they pray for the appointment of a receiver to take charge of, administer and liquidate the affairs of said corporation.

To this petition the defendant filed an exception of no cause of action, which was sustained in the lower court, from which judgment plaintiffs prosecute the present appeal.

It affirmatively appears on the face of the petition :

1. That the defendant is an existing corporation, whose charter has neither expired nor been legally forfeited.

2. That it has officers who are lawfully in office, holding over, under the terms of the charter, until their successors are elected, who have not died, or resigned, and who do not refuse to act as such officers, although they take a different view of their duties from that asserted by plaintiffs.

We may remark that the petition contains no allegation that plaintiffs have ever demanded of the officers the performance of the duties charged to have been neglected, and that they have been refused. This should seem, under all circumstances, to be a necessary condition precedent to the maintenance .of this action, and would, perhaps, by itself, furnish sufficient ground to sustain the exception.

But, on general principles, we can discover no judicial power, under the laws and jurisprudence of this State, to grant the relief herein sought, under the circumstances of this case. It is well established that courts have no jurisdiction to appoint receivers for corporations in the absence of express statutory authority. High on Receivers, Secs. 287, 288, 292, 298, 307, 749, and authorities there cited; French vs. Gifferd, 30 Iowa, 148; Hedges vs. Pacquet, 3 Oregon, 77.

To this doctrine, in its broadest statement, there may be some exceptions, confined, however, to .cases of extreme necessity, such as when the corporate property is abandoned, or where there are no persons authorized to take charge or conduct its affairs.

No other exception has ever been hinted at, even in any dictum of this Court. Stark vs. Burke, 5 A. 740; N. O. Gaslight Co. vs. Bennett, 6 A. 456; Brown vs. Union, 3 A. 182.

Such power does not exist, and has never been claimed, in case of an existing corporation equipped with competent officers.

A corporation is a person, whose possession and control of its own property and affairs must be respected like the similar rights of individuals. They cannot be interfered with, in preliminary proceedings and in advance of judgment, except in cases specially provided bylaw and on strict compliance with the requirements thereof.

It is not pretended that there exists any statute of this State authorizing the relief sought herein.

The only statutes referring to the subject are Sections 688 and 781 of the Revised Statutes, neither of which apply to this case.

We are not prepared to admit that petitioners are without other relief under the law. Their petition does not establish that they have resorted to any of the usual and ordinary proceedings under which relief, in such cases, is ordinarily found.

We are not prepared to accept his prognostications of their failure as sufficient basis for judicial action. Even if tried and found wanting, he must avail himself of remedies recognized by law.

Judgment affirmed at appellants’ cost.

Rehearing refused.

Levy, J., absent.


author: Pocrili, J.

text:
    No. 8601.
    State of Louisiana ex rel. the Gullett Gin Manufacturing Co. vs. James M. Thompson, Judge, et al.
    A District Court ■which, has jurisdiction of a cause is competent to pass upon and decide all legal points and issues presented in a reconventional demand, and in all other incidental, demands growing out of or connected with the main suit.
    In such a case, the charge that the Judge has usurped authority in deciding pleas or issues alleged to he hevond his jurisdiction, will not entitle the party complaining to a writ of prohibition from the appellate tribunal, unless the record discloses a plain usurpation of authority or jurisdiction, or arbitrary exercise of power by the inferior court.
    APPLICATION for writ of Prohibition. Thompson, Judge, Respondent.

      Bussell & Marr, W. 8. Benedict, for Relator :
    1. The capacity of a defacto officer of a corporation cannot be impeached collaterally. C P. 867 ; 25 A. 673 ; 26 A. 493 ; 28 A. 274.
    2. The law provides a remedy in such cases. C. P.867.
    3. Defendant is estopped from denying the capacity of plaintiff in this case, by reason of her call in warranty of plaintiff in the case Holden vs. 35. D. Gullett, Sr., represented by Mrs. M. A. Gullett, curatrix of same party. In that case she distinctly alleges that the Gullett Gin Manufacturing Company was represented by Albert Baldwin, acting president. In that case exceptors aslced. for judgment againstthe Gullet Gin Manufacturing Company, thus represented. 4 A. 339 ; 14 A. 308.
    4. The scope of the exceptions, when reduced to their essence, is an impeachment of the capacity of Albert Baldwin to represent the Gullett Gin Manufacturing Company. Though to do so, the assault is made on the amended charter by the ingenious allegations that plain tiff does not represent the Company under old or original charter, and plaintiff’s sole authority is based on the amended charter which, for certain reasons specified, is alleged to be absolutely void. What cannot be allowed directly, will not be allowed to be done indirectly.
    r>. Albert Baldwin and his co-directors were elected under the original charter, which exceptor admits to be valid. Vide Minutes of Board Directors, 31 January, 1881.
    <>. The determination of the validity of tbeamended charteris not restrained in the case, save for the purpose of impeaching the authority of Baldwin, the alleged defacto officer. This suit is brought by Gullett Gin Manufacturing Company, represented by A. Baldwin, President, against a stockholder for an alleged indebtedness to the Gullett Manufacturing Company, and growing out of his relation to the Company. The allegation is, that the Company plaintiff was organized by act passed in 1870. The exception is, that plaintiff is not that Company, because deriving its sole authority from an amended charter formed in 1881,' which exceptor says in an absolute nullity and in no manner affects the charter of 1870.
    As appears by the evidence the acting directory were elected under the old charter at its place of domicile and before the adoption of the amended charter, so if the amended charter is an absolute nullity, or the party suing was chosen under the old charter, the annulment of the amended charter does not affect the right to sue and cl&im the debt demanded, liis capacity remains intact.
    7. The defects alleged in the adoption of the amended charter are, if they existed, defects growing out of fraud on part of certain persons and matters of form. Fraud vitiates contracts and all acts, but does not operate as absolute nullity. Fraud may form the basis of relative nullity. Relative nullities are remedied by direct action. “Uor shall anymore informality in organization have the effect of rendering the charter null or of exposing any stockholder to any liability beyond.the amount of his stock.” R. S. 1870, Sec. 690.
    8. Corporate charters, like all other written instruments legal in character and object with all appearance of regularity and complete in execution, cannot be collaterally impeached, and are to be treated as valid in any collateral proceedings, until they have been adjudged invalid in a proceeding to set them aside. Charges of forfeiture will not be entertained in collateral proceedings. Abbott Dig. Corp. p. 149, 2 Kent Com. p. 312. 13 A. 545.

      9. A party who has dealt with a corporation, participated in its organization, or in any manner dealt with it so as to give it credit, or recognize its existence, cannot be heard to impeach it. Wiltz vs. Fetors, 4 A., 339, and authorities cited. Yredenberg vs. Behan} 33 A. 636; E. Fascagoula Hotel vs. West, 13 A. 545.
    10. Charters and acts of incorporation are subject to the general rules for the interpretation of agreements between individuals. AtchafalayaBank'vs. Dawson, 13 La. 497.
    11. The amended charter'in this case.is, in it§ purposes and objects, sanctioned bylaw as well in its form -, it recites all the facts necessary to give it validity; it purports to be adopted by thereqxusite number of votes at ameetingwhenthe requisite number of stockholders (three-fourths) were present and signed the project as it exists in the notarial act, including defendant administratrix and her intestate, being legal in form and purpose; like agreements between individuals, it cannot be collaterally impeached, specially at a period nearly twelvemonths since its promulgation and registration, and specially also by parties who participated in its adoption. R. S. 1870, Secs. 683, 685, 690, 686; 13 La. 497; 15 La. 26; 4 A. 339; 33 A. 636 ; 13 A. 545.
    12. When a corporation has forfeited its charter that forfeiture cannot be inquired into collaterally. Until duly forfeited by proper proceedings to that end it has capacity to sue. 13 La. 497; 15 La. 26; Kent Com. 312.

      13. The questions involved are now pending in a suit in the United States Court for Eastern District, La., at Bow Orleans, between the same parties or contradictorily with same defendant. Vide proceedings in said Court, 7 N. S. 187; 8 A. 15 ; 4 A. 520; 5 A. 494; 26 A. 113; 33 A. 768.
    14. Ids pendens, nearly akin to res adjudioata, is allowed to prevent harassment by an infinitude of suits and conflict of jurisdiction; it rests upon a wise public policy. 4 A. 420; Dick vs. Gilmer, C. 3?. 335.
    15. Ids pendens may be urged by plaintiff on tile trial, or he may plead it. Pierce vs. Miller, 3 A. 354. Union Bank vs. Lobdell, 10 A. 130.
    16. The pendency of the suit plead Us pendens may be in a different court, so that it be a court of competont and concurrent jurisdiction. C. C. 335. Vonwyck vs. Gaiues, 13 A. 233; Bocheroau Sc Co. vs. Lewis, 26 A. 581.
    The'plea of misjoinder of Mrs. Gullett, as administratrix and individually, incase Gullett Gin Manufacturing Company vs. Mrs. Gullett, administratrix and individually, is not tenable. All the effects reciprocally possessed by both husband and wife during marriage, and at its dissolution, aro presumed go be common effects or funds. The stock charged to have been obtained by Mrs. Gullett individually, like that charged to have been issued to her intestate, B. D. Gullett, Sr., is presumably community property. The joinder is therefore proper. B. C. C. 2405 (2374).
    The snit is really for what is community property presumably, tboughlield by the two spouses separately.

      JE. Howard McOaleb, same side :
    Where evidence, under an issue legally presented, is sought to be introduced, the proper practice is to object to such evidence, iatlier than move to strikeout the allegation. 23 An. 193; 21 An. 271.
    The law authorizes issuance of writs of prohibition to provent usurpations of j urisdiotion by inferior courts in just such oases as the instautone. C. P. Arts. 846 et seq.; High’s Ex. Leg. Bom., Prohibition §762 et seq.

    The regularity of the corporate organization cannot be questioned collaterally. Boone on Corporations, §34; Angelí Sc Ames on Corporations, Chap. XXI, Quo "Warranto.

    It can only be dono by suit under Intrusion Into Office Act, and proceedings in conformity with the Articles of Code of Practice relating to the writ of quo warranto. Bev. Statutes, Sec. 2593 et seq.; C. P. Art. 867 et seq.

    The State is a necessary party to such a suit. Abbott’s Dig., Law of Corporations, vo. Officers Quo Warranto.

    An injunction cannot issue from a District Court and be made operative beyond tbe territoi ial limits of that court. C. P. Arts. 125, 129.

      JEUis & Hllis, H. JD. White, for Respondent.
   The opinion of the Court was delivered by

Pocrili, J.

This is an application for a writ of prohibition and is predicated upon the following proceedings and facts:

Relator sued Mrs. Gullett in the Eighteenth Judicial District Court, Parish of Tangipahoa, for the recovery of seventy-five shares of stock of said Company, worth $7,500.

Defendant first excepted, on the ground that the plaintiff in that suit was not the real Gullett Gin Manufacturing Co., duly represented, hut a mere pretender, without power or capacity to stand in judgment, and she subsequently waived her exception and pleaded to the merits.

With her answer she coupled a reconventional demand praying that an amendment to the original charter of the Company, adopted in January, 1881, under which the officers representing the corporation in the suit- were elected, be declared null and void, for reasons which it is not necessary to enumerate in this opinion ; and that the original charter, adopted in February, 1870, be declared as the sole legal charter of the corporation.

During the absence of the District Judge from the Parish, she presented a petition, made part of her reconventional demand, and obtained from the clerk of the court an injunction restraining the president and directors from doing certain acts alleged to be injurious to her interests and to her reconventional demand.

At the ensuing term of the court, the Relator herein moved for the dissolution of the injunction, on the ground that it had been illegally issued by the clerk, aud on a bond insufficient in amount; which motion was overruled by the lower court.

During the progress of the trial, plaintiff in the original suit objected' to the introduction of evidence in support of the reconventional demand, on the following grounds, substantially :

1. That the legal status of the plaintiff corporation and the legality of its amended charter could not be inquired into collaterally.

2. Want of proper parties necessary to the decision of such an issue.

3. That the defendant was estopped by many acts recognizing the existence of the corporation, from now denying its legal existence, and that she was further estopped by similar acts of her deceased husband, whom she now represents as administratrix.

4. The plea of Ms pendens by a suit pending in the United States Circuit Court.

To the ruling of the court disposing of said objections, plaintiff reserved a bill of exceptions.

Relator now charges that in maintaining the injunction, in entertaining the reconventional demand, and in admitting the testimony objected to, the defendant Judge has usurped jurisdiction, and that its only remedy is a writ of prohibition.

We have diligently searched the record for any .plea or objection on behalf of Relator, touching the jurisdiction of the lower court over the matters involved, or issues presented in the reconventional demand, and we have been unable to discover any such plea or objection, and the record contains no ruling of the District Judge on a point involving his right of jurisdiction.

The motion to dissolve the injunction was addressed to that court, the objection to the introduction of evidence on the reconventional demand, on the grounds hereinabove enumerated, submitted to that court for decision questions of law and of practice which it was competent to decide, and neither the motion to dissolve, nor the objections urged, directly or indirectly denied the inherent jurisdiction of the court over the matters and issues discussed. And it is more than manifest that in case of a favorable ruling, Relator would not now complain of the alleged usurpation of jurisdiction or authority by the District Judge.

The case being appealable, all the rulings of the Judge on the points thus for submitted to his adjudication, will be reviewed on appeal.

It was competent for the Judge to pass upon all the pleas and objections submitted to his consideration in a case pending before his court, and if he erred, as charged, in maintaining a reconventional demand over all the legal' obstacles interposed by plaintiff, the injury is not irreparable, and his rulings do not involve the naked question of jurisdiction vel non.

Ithas been so frequently held by this Court, that it can now be considered as elementary, that a writ of prohibition will be granted only when there is a plain usurpation of authority or an arbitrary exercise of power on the part of the inferior court, and when the injury is actual or immediately impending.”

In the case of State ex. rel. Hernandez vs. Monroe, Judge, 33 A. 926, in which two District Courts were trying cases between the same parties, we refused our interference by prohibition, on the ground that the act of either court, in wrongfully maintaining jurisdiction, could be corrected on appeal.

After a careful review of the record in this case, we are more than convinced that to issue the writ herein prayed for would establish a most dangerous precedent, and would open the door to a premature examination by the court of preliminary rulings of inferior tribunals on many legal questions, not involving the inherent right of jurisdiction of such courts in the premises.

The court having undisputed jurisdiction of the main suit, was fully competent to entertain jurisdiction of the pleas and issues submitted in the reconventional demand, and the Judge’s rulings, whether right or wrong, on the legal propositions involved, cannot, in any contingency, be construed as the exercise of unwarranted authority, and do not present a question of jurisdiction which would justify the interference of this Court, at this stage of the proceedings.

The writ of prohibition prayed for is, therefore, refused, at Relator’s costs.

Levy, J., absent.


author: Bermudez, C. J.

text:
    No. 5961.
    Oscar Allen vs. Lafayette Insurance Co.
    Where a plaintiff sues, to recover against the loss of a stock of furniture insured and destroyed by fire, and alleges that the furniture was in a warehouse in the rear of the building, at the corner, instead of alleging that tho same was in said building, the misdescription cannot relieve the Company when it is proved that the policy had been destroyed; that the insured had no other transaction with the Company ? that the building contained a warehouse, up and down, and when evidence was freely introduced .showing the intent of the parties, and establishing that the entire building, which was two-story, was covered in its length and width by a continuous roof extending over a yard and the rear warehouse.
    APPEAL from the Superior District Court for the Parish of Orleans. Gullom, Judge ad hoc.

      Braughn, Buck & Dinkelspiel, for Plaintiff and Appellant.

      Miller, Finney & Miller, for Defendant and Appellee. '
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action on a policy of insurance to recover $2,000, as the value of a stock of furniture specially insured and destroyed by fire.

The defense is that tlie lisle was talc in upon such furniture, contained in a two-story frame building corner of Magazine and Sixth streets ; that the building mentioned in the petition was a warehouse, in the rear of tlie two-story frame building, and that the policy was not intended to cover any furniture in that warehouse.

Prom an adverse, judgment the plaintiff has appealed.

The petition alleges that the policy was issued on the stock of furniture contained in a frame slated warehouse, situated in the rear of the building corner of Magazine and Sixth streets.

There is no dispute as to the identity of the spot. The contention is, as to whether, having alleged tlie furniture to have been in tlie warehouse, when it was in the two-story building, the plaintiff can recover; in other words, whether the misdescription is fatal, and whether, if not so, tlie policy can be construed so as to cover tho warehouse, as an appendage or component part of the two-story frame building mentioned in it.

The misdescription of tlie building in the petition is easily accounted for, and lias been cured by the course of the litigants during tlie trial. It is insignificant.

When the petition was drawn up, the policy issued had been destroyed by the fire which consumed the building with the furniture in it. It. was not, therefore, possible to give in the petition the description contained In the policy.

On tlie trial, evidence was introduced, without objection, by both parties, to show the contents of the policy-, the nature of the contract and the circumstances under which it was formed. The evidence introduced established no new thing to the parties. Whatever irregularity-existed in the petition was, therefore, rectified and cured.

It is not shown that this plaintiff ever had any other dealing with the defendant Company. Iiis description of the building could not, therefore, be mistaken as intended to refer' to a building other than that mentioned in the issued and lost policy, and patent on the books and among the archives of the Company. The apparent surprise and indignation of the Company somewhat flavor of anything but good faith and a desire to have justice administered.

Were it not so, the word warehouse,” used in the petition, might be taken as sufficiently generic to cover the two-story frame building mentioned in the policy, almost as effectually as tlie word “ factory ” would. Flanders, pp. 73-4; 18 Ill. 553.

Tlie evidence establishes that the plaintiff was a furniture dealer, carrying on an extensive business as such, in a building belonging to his wife, at the corner of Magazine and Sixth streets, in this City; that he had quite a large stock oft furniture on hand there, much exceeding in value the amount for which the policy was issued, and which was destroyed by fire, while the policy was in force.

The record shows that the inspector of the Company who visited the premises and saw the furniture exhibited to him by plaintiff, testified that the building was divided into three parts: tliojftrsf, which was the corner, was used as a store, warehouse upstairs and down ; the second, a residence, composed of rooms on each side of a hall, which was in the centre, next to which was a gateway ; the third was a little placo called warehouse. All under one roof.

Iiis testimony is corroborated by that of other witnesses.

A plan or sketch introduced in evidence and in the transcript, illustrates the locality and distribution of the two-story building, up and down.

It appears from it, that the building had but one continuous roof, extending from front to rear line; that it covered, as composing the second story-, a large upper store, two bed rooms and two chair rooms, opposite each other; next a large chair room, extending across the building, from side to side, under which were stairs, a cistern, the indispensable commodity, the yard and the carriage way; next and last a varnish room, under which was a shop or warehouse.

The defendant claims that the front building and the warehouse in 'the rear are quite separate and distinct; that they were situate at a distance of fifty feet, and separated by a dining room, bed rooms and kitchen, a deep yard and a wide carriage way.

All that no doubt is true, but it does not at all follow from it that the Company is not liable, even if the description contained in the petition had not been reformed.. The two-story building might have been considered as a warehouse.

The inspector himself testified that there was such a warehouse in it, up and down.

It was indifferent to the Company in what part of the biiilding the furniture destroyed was contained, whether in the front, centre, rear, upper or lower.

Courts endeavor to give effect to the intention of the parties in construing policies of insurance, the contract being one essentially of good faith. The language of a policy is that of the company which can provide for every proper case, and is to be taken in the sense most favorable to the assured. Flanders on Fire Ins. 72, § 7; Wood 81, p. 147.

Where a building is described as of one class, instead of another which would require a larger premium, the misdescription being intentional and fraudulent, at the expense of the company, the policy would be nugatory; but where the description, although not strictly accurate, is onty a representation, makes no difference in the premium, does not mislead the insurer nor increase the risk, the inaccuracy being a mistake or omission, whether wilful or accidental, is immaterial and does not avoid the policy. 41 N. Y. 412: 1 Cush. Mass. 257; 4 Mass. 330; 3 Dow. 255; 6 Cow. 673; 7 Wend. 72;. 6 Wis. 89 ; 1 Paige N. Y. 378; 2 Phila. R. 357; 1 Moody & Malkin, 90; 2 Peters R. 25; 16 Mich. 380; 9 L. C. 61; T. & C.N. Y. 213.

All the Company cared for in this case was a correct representation of the nature of the building, the existence and value of the property insured, and last, but not least, the payment of its premium. It was in order to ascertain and verify these material facts that the Company sent its inspector to view and report. It is true that this agent did not visit the rear portion of the building ; that he merely visited the first and second floors of the main front portion of the building to which he was taken, and in which he saw furniture for a value exceeding by much the amount stated in the application and subsequently incorporated in the policy.

The circumstance that the plaintiff had effected an insurance in another company on his stock of furniture contained in the frame slated store at the corner of Magazine and Sixth streets, $5,000,” and ‘‘ on same, in frame slated warehouse in the rear, $1,000,” does not, in the least, militate against him. By so doing, he must be considered as having intended merely to describe the different parts of the building in which was to be found tlie furniture which he had valued at distinct sums. It does not at all prove that he considered the warehouse as constituting an independent building. On the contrary, referring as he does to it, as being in. the rear, it rather establishes that he took it to be the same building, located at the extremity opposite the front, and strongly indicates good faith on his part.

It may not be amiss to say, as a part of the history of this case, suggested by the parties, that although in a suit on the policy in the other company, the plaintiff was exonerated from all imputation of fraud, and to some extent won the sympathy of the court, which viewed his case as a hardship, he was defeated, on the defense of a subsequent insurance on the same property, in another company, without notice. 30 A. 1388.

We are satisfied, from the proved intention of the parties, from the description of the building on the premises, from the testimony adduced, whether the stock of furniture was entirely in one part of the two-story frame building, or in the warehouse in its rear, or scattered through it, that the whole construction, being within the same enclosure, connected and used as it was, as one and the same structure, covered in its whole length and width by a continuous roof, constituted one and the same building, which no distortion of language can transform into two, and that as the furniture destroyed wag in some portion of it, the policy covered it, and the Company is liable for the amount claimed from it.

In the absence of fraud, and none has even been intimated in this case, the contract of insurance must be liberally construed in favor of the insured and for the benefit and promotion of trade.

Where it is doubtful what goods are covered by the policy, the doubt should be resolved against the underwriters. May on Ins. 181, 182. 579; Flanders on Ins. 224; 4 R. T. 159; 43 Penn. St. 350; 18 La. 431,

The words used, house or building, embrace every building appurtenant and necessary to the main building, used and connected therewith. May on Ins. 520; Flanders, 73; Wood on Ins. 83; 2 Sandford N. Y. 497; 2 La. 507; 3 Bacon Abr. 396; 9 Allen Mass. 316.

We think the District Judge has erred.

It is, therefore, ordered and decreed, that the judgment appealed from be reversed; and proceeding to render such judgment as should have been rendered, it is ordered, adjudged and decreed, that tin* plaintiff recover of the defendant the sum of two thousand dollars, ($2,000) with legal interest thereon, per annum, from the 14th January, 1875, until paid, with costs in both Courts.


author: Bermudez, C> J.

text:
    No. 7700.
    Buck & Beauchamp vs. Blair & Buck.

      A subrogeo has the necessary interest to procure the revocation of an order rescinding, ex ■parte, a decree of subrogation in his favor, and the reinstatement of the same.
    On the trial of a rule to that end, oral testimony is inadmissible to contradict the title on which the subrogee relies to be recognized as the owner of the entire judgment, when that title shows that another person has a half interest in it.
    Even if such other person had no such interest, the subrogee could not, on the face of the deed presented, have himself recognized or subrogated to the whole judgment.
    If the half interest mentioned was a litigious right, and was acquired iu violation of law, by a practicing attorney, the right of ownership would not be in the subrogee, but in the original judgment creditors.
    APPEAL from the Sixth District Court for the Parish of Orleans. Biyhtor, J.

      H. H. Bryan anil T. M. Gill, for Appellant:
    On Bui, of Excebtions.
    1.Where an instrument of transfer and subrogation shows upon its face that the subrogee lias acquired only a one-half interest in a thing, the acquirer of such half is without interest in the question as to the ownership of the other half. Gill’s objection to the rule, and to any proceeding thereunder, should have been maintained, and the rule dismissed. 7. An. 167-168. . .
    Where an authentic act forms the basis of a judicial proceeding and is apart of the pleadings, and is so made a part as evidence of'title, no oral testimony on the part of the party producing it is admissible to vary, alter, change or contradict its terms, and defendants’ objection' to the admissibility of such testimony should have been sustained and the testimony rejected. C. C. 2236.
    Merits.
    1. The right alleged to he acquired by Gill is not a litigious one. 18 How. 507-509.
    2. Even if it weie a litigious one, and the alleged transfer of one half the judgment to Gill was a nullity, Cary’s rights are not affected thereby and he has no interest in the question of the validity of such transfer, or as to the ownership of the one-half not purchased by him. 7 An. 167-168. 25 A. 558-9.
    3. A contract made between an attorney and his client, that the attorney is to receive a per contago of the amount recovered, the fee contingent on success is not a prohibited contract. Bev. Stat. 1870, Sec. 2166, Sec. 128; 12 An. 159; 2 An. 523-4; La Société de Bionfaisance des Arts et Metiers vs. W. B. Morris & Co. et als , Opinion Book 46, p. 262; 32 An. 305; 7 L. 207; 20 An. 172-174 ; 31 An. 130-134 ; 33 An. 345. 9 B, 308.

      JS. II. Farrar, for Appellee.
   The opinion of the Court was delivered by

Bermudez, C> J.

The contention in this case involves the title to the judgment rendered in it. Prom a finding in favor of G-. W. Cary, who claims to have acquired it from the plaintiffs, T. M. Gill has appealed.

It appears that on January 7th, 1879, on producing to the District Court a written instrument, signed by one representing himself as authorized, and which purported to bargain, sell and transfer to G. W. Cary, for and in consideration of $1,100, in cash and notes, all the right, title and interest of the plaintiffs, in and to said judgment, an ex parte motion was made and an order thereon was obtained subrogating Cary. The motion containing further an averment of payment of said judgment, an order was simultaneously procured declaring the judgment. satisfied.

Shortly after, apprehensive that the instrument authorized a transfer and subrogation to one-half interest only, the court proprio motu. rescinded the orders and had Cary’s attorney notified. Thereupon, the latter took a rule on T. M. Gill, who was named in the deed as owner of one-half of the judgment, to show cause why the proprio motu rescinding order should not be annulled and the first orders of subrogation and satisfaction reinstated. This rule rests upon the averments that Gill, both before and after the date of the instrument, admitted that he had no title of ownership to the judgment, and that whatever title he might appear to have was a nullity, because acquired in violation of the prohibitory law which forbids attorneys from purchasing litigious rights falling under the jurisdiction of the courts in which they exercise their functions. R. C. C. 2447.

When the rule came up, Gill objected to the same, for want of interest in Cary, and resisted, when offered, .the admission of oral testimony to alter, vary, change, explain or contradict the act of sale and subrogation, which was the basis of the order sought to be reinstated. The objections were overruled, the trial proceeded, witnesses were heard, but a bill of exceptions was reserved.

Cary had an apparent interest in taking the rule, as he had such in reinstating an order in his favor, subsequently ex parte revoked. Ho had an interest in having himself recognized as substituted to all the rights of Buck & Beauchamp, in and to the entire judgment, and as it appeared to him that Gill claimed, without right, to own the half interest in and to it, he had a right to test that pretension. Gill could have objected to the form of the proceeding and required a direct action, but did not do so. Under the showing, Cary had a right to be heard.

The question presented was: whether the Court should annul its rescinding order and reinstate the first decree of subrogation and satisfaction. The rule did not contemplate the rendition of a new order, as though the first had not been made. It would have been more regular for it to have done so, as it agitated the question, not whether the first decree was justified by the showing made, but whether, for the reasons stated in it and not found in the first motion, Gill had or not a title or interest in and to the judgment.

It is apparent, however, that the act declares that its “true intent and meaning is to convey to G. W. Cary a one-half interest in the claim, the other half being owned and controlled by T. M. Gill, of New Orleans. The act is the deed of Buelc & Beauchamp, whose assign and subrogee G. W. Cary claims to be. It contains the formal recognition of aright of ownership to half of the judgment in Gill, who has accepted the stipulation and who stands upon it making himself thereby party to the act, as effectually so as if he had signed it at its date.

The rule is too well established, by law and jurisprudence, to be questioned, that parol evidence or testimonial proof shall not be admitted against or beyond whatis contained in the acts, nor on what may have been said before or at the time of making them, or since, by the parties to them, unless upon charges of fraud, error, violence, etc. Contra fidem seripti, testis non adhibetur. R. C. C. 2275, 2236, 2238 ; H. D. p. 534 ; L. D. p. 25Ü.

The testimony to prove that Gill disclaimed title was, therefore, improperly received. But, conceding that it was legally admitted and shows such disclaimer, we are at a loss to perceive what right the absence of the ownership of that half in the judgment, in Gill, could confer on Cary the right to be recognized as owner of the entire judgment, when, by the very terms of the act, its true intent and meaning was to convey to him a one-half interest only in the claim.

Standing, then, on the rights of the original plaintiffs to that extent only, Cary could not possess the right which they could have exercised, of attacking the acknowledgment of ownershi]) in Gill’s favor, on the ground of acquisition by him in violation of a prohibitory law. That right, whatever it be, if it exist, belongs exclusively to the original plaintiffs.

The District Judge has revoked his rescinding order and reinstated, in its entirety, the order of subrogation and satisfaction, the correctness of which, to the extent of the one-lialf interest therein unquestionably transferred to Cary by the plaintiffs, Gill has no interest to contest. Although tiie appellee has not asked an amendment of the judgment, whicii is correct in part, we think we are authorized to say distinctly that Cary’s right, as subrogee, to such half, is not to be affected by our decree, which we will make clear.

It is, therefore, ordered and decreed, that the judgment appealed from be reversed, as far as it recognizes G. W. Cary as the owner of the one-half interest mentioned in the act of transfer, as owned and controlled by T. M. Gill; and it is now ordered and decreed, that the rule of G. W. Cary, to rescind and reinstate, be denied, as far as it seeks to have him recognized as the owner of said half interest, to the exclusion therefrom of T. M. Gill, and that Cary pay costs of appeal.

Levy, J., absent.