author: Nicholls, O. J.

text:
    No. 12,085.
    Succession of Fannie Seymour, Widow of William R. Mills.
    Testaments are revocable at the will of the testator until his decease.
    When a prior will has been made the testator has a right up to his death to formally announce that he has changed his mind.
    Art. 1692, O. 0., does not require that this act of revocation should itself be a testament; it only requires that it should be "an act” in “one of the forms prescribed for testaments arid clothed with the same formalities.”
    APPEAL from the Civil District Court for the parish of Orleans. Ellis, J.

      Chretien <& Suthon, Public Administrator for Appellee.

      Henry Chiapella and Frank Zengel, Testementary Executors, Opponents, for Appellants.

      Argued and submitted May 4, 1896.
    Opinion handed down May 18, 1896.
   The opinion of the court was delivered by

Nicholls, O. J.

J. B. Vinet, public administrator, alleging that Pannie Seymour, widow of Wm. R. Mills, had died on the 6th of January, 1896, in the city of New Orleans, leaving no heir, present or represented in Louisiana, that her succession was vacant, applied for letters of administration.

On the 6th January, 1896, Peter S. Anderson and two others filed a petition in the District Court, in which they alleged that the said Pannie Seymour did, on August 7,1895, by act before Zengel, notary execute a will in the nuncupative form, in which they were appointed jointly as executors with seizin; that they accepted said trust and desired to qualify as such. That the succession has been opened by the public administrator, as a vacant estate, and he had applied for leters of administration. That the last will of the deceased should be filed, registed and ordered executed, and they should be appointed executors, and the prayer of the public administrator should be rejected.

The public administrator answered the rule. He admitted that the deceased had, by act before Zengel, executed what purported to be a will in nuncupative form, but he alleged that subsequent to the execution of said alleged will, the deceased executed on November 30, 1895, an express act of revocation of all wills and testaments, by act before Upton, notary public; that the status of the succession was thus fixed as an intestate succession and there existed no reason why respondent should not be appointed administrator. He prayed that the rule be discharged and that he be appointed administrator. He annexed to his answer a copy of the acB of revocation.

Plaintiffs in the rule filed whatis styled ian amended petition and opposition” in which they amplified their opposition to the application of the public administrator. They denied that the deceased had died intestate, and averred that she had left a last will (the will before Zengel, already mentioned), in which they had been appointed executors, and for which probate they had petitioned. They averred that the pretended act of revocation executed before Upton ■did not, and could not, revoke or recall the said testamentary dispo - sitions of the deceased and was null and void and of no effect, for the following reasons, viz:

1. Said act was not made in one of the forms prescribed for testaments and clothed with the same formalities.

2. The witnesses did not have the legal qualifications.

8. The requisite number of witnesses for cases of blindness of the party, dictating the instrument, were not present; said Mrs. Mills being blind.

4. Erasures, and words added by the hands of another were not approved by said Mrs. Mills before signature, and said erasures and addition of words took place after signature outside of the presence of the party dictating the instrument.

5. The instrument was not written at one and the same time, without interruption or turning aside to other acts, but, on the contrary, one of the witnesses absented himself during the confession, after the beginning and prior to the signature of the same, and remained absent for a considerable time, which absence taints the instrument with nullity.

6. Said instrument is not a testament or act of last will, disposing of property mortis causa but a notarial act-, unknown to our system of laws, which can not validly revoke, annul and supercede the prior testamentary dispositions of testatrix.

V. The notarial act being invalid and illegal, the nuncupative testament of testatrix, under which the opponents claim remained in full force and effect, and should be upheld accordingly.

On January 20, 1896, the case came up for trial on the application of the public administrator to be appointed as administrator. The public administrator offered the act of 80th November, 1895, passed before Upton, notary. The court admitted it as rem ipsam. Oppo - nents offered in evidence the will of the deceased, passed on the 7th August, before Zengel, notary. Objection was made by the public administrator on the ground that it had been revoked by the subsequent act before Upton, notary. The court admitted the document as rem ipsam, stating it would pass upon the act of revocation after all the evidence was in; that after seeing the act of revocation it reserved its right to rule upon the absolute admissibility of the will offered.

Opponents having offered to prove by witnesses the allegation of their amended opposition, the public administrator objected to all parole testimony, to vary of contradict the recitals of the notarial act of revocation, passed before Upton, notary, on the ground that the act was valid in form and made full proof of itself and fixed the status of the succession, and it could not be attacked collaterally. The court reserved its ruling until after hearing the testimony, and; several witnesses testified as to the circumstances connected with the passing of the act of revocation. At the close of the testimony the court rilled upon the objection to any testimony in the case which had been raised. It “ruled that the objection was well taken; that the necessary parties were not before the court to enable it to-pass a definitive judgment as to the validity vel non of the act of revocation or of the testament itself — the court was of the opinion that the judgment asked was in regard to the administration in thq first instance; that the primary administration or care of the succession would have to be based upon, the face of the records as-made, to-wit: the will and the act of revocation; that parole evidence could not be received at that junction of affairs on the issue-then before the court to assail the validity of the act of revocation;. that if there were in the act of revocation itself any defects, of •course, the parties would not be concluded from showing that on the-face of the papers.” To this ruling, opponents excepted and reserved a bill.

The court rendered judgment against the opponents and in favor of the public administrator, dismissing the opposition and appointing the public administrator administrator of the succession. It reserved to áll parties in interest the right to attack by direct action, either the testament of the deceased or the act of the revocation..

Opponents appealed.

In their brief, they say:

“ The District Judge having excluded all parole evidence going to-assail the validity of the notarial revocatory act before Upton, notary public, for non compliance on his part with legal formalities, the controversy narrows down to this legal proposition: ‘ Oan a testament be revoked in Louisiana by a pure notarial act which is not itself a will because not containing any disposition of property in favor of instituted heirs or legatees, though it be drawn Up with the apparent formalities of a nuncupative testament by public act.’ ”

Counsel say: “ This question is res nova in this State for it has not happened before (so far as we have seen), that a person who had. made a testament ever called upon a notary to receive a declaration •of annulment thereof without making any other disposition of property. It is remarkable that the testatrix of August, who had made so many eccentric dispositions mortis causa, should in November following, dictate a notary public the simple declaration, ‘ I do hereby revoke all former wills heretofore made by me.’ If such an act which the notary himself styles an act annulling all wills and testaments ’ and which no one claims to be a will, is sufficient in Louisiana, as it certainly is in France, under the express provisions of Art. 1035 of the Code of Napoleon, to place the testatrix back in a position of hesitancy, then the public administrator rightly held that the ¡succession- was vacant and intestate. Opponents, on the contrary, are entitled to the probate of the will of August 7,1895, and to qualify as executors thereunder, if the said revocatory act is unknown to our system of laws, and can not validly revoke the prior testamentary dispositions of the deceased.” * * * Our legal proposición is:

“ 1. An act of last will can not be revoked expressly in Louisiana, ■except by a subsequent and different act of last will.
“2. A purely revocatory act which makes no disposition of propty, provides for no legatees, instituted heirs or testamentary executors, is not a testament or act of last will.
“3. Hence the'revocatory action is worthless, even though to all -outward appearances it be a will since it has neither the substance nor elements of a will.”

The only question submitted to us is, whether, in order that a testator should make an effective revocatiou of prior wills made by. him, it be necessary not only that he should formally declare, in writing, in an act in proper form, clothed with proper formalities, that he revoke all prior wills, but that in the act in which he makes ¡such formal declaration he should, by express affirmative declarations, dispose of his property, either universally or by universal title ■or by particular title.

The law of Louisiana on the subject of the revocation of wills lies ■ within very narrow compass. It is as follows:

Article 1690. “Testaments are revocable at the will of the testator until his decease. The testator can not renounce this right of ■revocation nor obligate himself to exercise it only under certain words and restrictions, and, if he does so, such declaration shall be ■considered not written.”

Art. 1691. “ The revocation of testaments by the act of the testator is express or tacit, general or particular. It is express when the testator has formally declared, in writing, that he revoked his testament, or that he revokes such a legacy or a particular disposition.

“ It is tacit when it results from some other disposition of the testator, or from some act which supposes a change of will.

“ It is general when all the dispositions of a testament are revoked.

“Jt is particular when it falls on some of the dispositions only without touching the rest.”

Art. 1692. “The act by which a testamentary disposition is revoked must be made in one of the forms prescribed for testaments, and clothed with the same formalities.”

Opponent’s contention is substantially that in Louisiana the right of revocation of a will is not an absolute right, but one conditioned upon or made contingent upon the testator’s making a new will containing express affirmative new disposition of property; that the testator must not only expressly revoke, but expressly replace; that he must not only demolish, but he must actively reconstruct. We find nothing in Art. 1691, O. C., justifying that proposition. What is the declaration in the act of revocation which the law, in that article, requires to be made, in order to operate a revocation? There is no uncertainty on that point; it is simply a formal declaration by a testator that he revoked his testament,” that and nothing more. Were we to require more than this we would have to add to the law instead of taking it as it is.

The testator having, in a prior will or in prior wills, announced what, in the absence of subsequent counter declarations, would be taken to be his last wishes, he has the right up to death to formally announce that he has changed his mind, and to declare that the disposition of the prior testaments should no longer be taken as expressive of his will. As the prior testament was essential to be made in order to bring about in respect to the disposition of his property a departure from the disposition which the law itself would make, so the only rational method of bringing himself back into acquiescence with those legal dispositions, would simply be by undoing what he had done before. The moment this was done the law would, by its own force control the situation, there would be no necessity for any expression of will on this subject. There would instantly be a restitutio in integrum.

Article 1692 does not require that the act of revocation should itself be a “ testament ” as opponents argue — it only requires that it should be “an act ” in “ one of the forms prescribed for testaments and clothed with the same formalities.”

There are in this State different forms or classes of wills. There are nuncupative or open testaments, mystic or sealed instruments and olographic testaments,, and nuncupative testaments, are subdivided into nuncupative testaments by public act, and nuncupativetestaments by private act. Bach form of testament is subjected by law to the observance of certain specified formalities or “solemnities.” Whenever an act is presented as an act of revocation of a will, all that is necessary in order that it should hold good, is that the act in which the required formal declaration of revocation is found, shall on examination, prove to be in one of the forms provided for testaments and clothed with the same formalities.

Opponents say that such a construction would be unreasonable. They ask why should the Legislature have ordained that the revocatory act should have the shadow and not the substance of a will? Why depart from the rather too liberal dispositions of Art. 184 of the Code of 1808, as well as from the amendments proposed by the commissioners appointed under the Act of 1822 to revise that code, and from Art. 1035 of the Code Napoleon? Was it not because we wanted to return to first principles, since under the Roman law a “testament” could only be revoked by another “testament?” Would not such construction, they say, be liable to the criticism of tautology. Bor is not saying that the words “ the act must be made in-one of the forms prescribed for testaments” refer only to the general appearance of the instrument and not to its very substance, equivalent to saying “that it must be clothed with the same-formalities?” Why should the two sentences be placed in juxtaposition if they both contemplate the same object? Is it not evident that the words “ must be made in one of the forms ” have a meaning quite distinct from the words “ clothed with the same formalities?” And since the latter deals with the outward appearance of things the former necessarily have a deeper significance.

Article 184 of the Code of 1808 provided that: “In revoking a testamentary disposition less solemnity is required than in making it. Thus a testament may be revoked by another testament, or by a ■codicil or by any other act received by a notary in presence of two witnesses expressing a declaration of a change of will. In like manner a codicil may be revoked by a new codicil, or by a testament or by an act passed as above specified.”

When the Code of 1808 was revised, the Code Napoleon was in ■existence, and the law bearing upon the subject of the revocation of wills was embodied in Art. 1035 of that Code, and it read as follows:

“Les testaments ne pourront étre révoqués en tout ou en partie ■que par un testament postérieúr ou par un acte devant notaires portant déclaration du changement de volonté.”

In dealing with the subject of the revocation of wills in the revision of the Code of 1880, through the adoption of that of 1825, our lawmakers did not, in Art. 1685 of the Civil Code (now Art. 1692) think proper to follow the language of Art. 1035 of'the Code Napoleon. The phraseology of the French.article had enabled some strict •constructionists in France to insist that inasmuch as by it it was declared that “testaments can be revoked in whole or in part •only by a subsequent testament or by an act before a notary public ■declaratory of a change of will,” and inasmuch as by law the word “ testament ” had been given a fixed definition declaring it (Art. 895 ■O. N.) “an act by which a testator disposes for a time when he shall no longer exist, of the whole or of part of his property, and which •he can revoke,” therefore it was necessary, in order to bring about ■a revohation when attempted, in any other manner than by an act before notary, that the act of revocation should, at the same time, be one making a disposition of his property, either partially or •entirely.

We scarcely think that the framers of the French law intended, ■under Art. 1035 of the Code Napoleon, to make the revocation of a will by a testator dependent upon a new affirmative disposition of his property or to impose limitations upon the power it itself of revocation. Had this been their intention we would have found the same obligation repeated in that portion of the article allowing a revocation through an act before notaries. We find no such ■obligation imposed upon the testator, when, in that form, he revokes his former will. All that is required of him under such circumstances is to make a formal declaration of a change of will (changement de volente), and not a declaration of a new disposition of the property (disposition de ses biens). The necessity for “a new disposition of property” thus insisted upon in France when the act of revocation was sought to be made through an act under private signature, rests exclusively upon a supposed obligation of blindly following the very letter of the law as to form. Our own Legislature doubtless saw to what result the injudicious use of the word “testament” had led up, and, in our opinion it left that word out precisely to avoid a similar contention being made here. We not only departed from the French article in the change just referred to, but we did so also in respect to the requirements of the “notarial act” when one was to be resorted to as furnishing the evidence of a change of will. Under the Oode Napoleon this act is referred to simply as “un acte devant notaires,” while with us the act must not only be an act before a notary, but it must be in the form prescribed for testaments and clothed with the same formalities.

The dominant idea with us is obviously that as by law the original testamentary dispositions of a person have, in order to be given effect to to find expression and be evidenced in a fixed designated way so a change of will in respect to those dispositions has to find expression and be evidenced in like solemn manner, but on the other hand that to this change of will (changement de volonté) u 1 force and effect has to be given when so evidenced.

Our law makers have manifested no desire te give a preference to testamentary successions over legal successions. On the contrary, the disposition of property at death, as fixed by the law itself, was deliberately adopted as the system most consistent with justice and equity, and that system is only departed from by strict adherence to well defined rules. There is no reason, therefore, leading us to suppose that the law maker has attached, as a condition to the revocation of an existing will that the testator revoking the will should be forced to affirmatively make a new disposition of his property. Opponents look upon the words “form” and “formalities” as synonymous, but in this there is error.

If a person on being told that another who had just died had left a will, should ask in what form this will was, the answer would, at once, be either that it was an olographic will, a nuncupative will by public act — a nuncupative will by private act of a mystic will — if he were to then ask whether all the formalities required by law in the premises had been fulfilled, the person to whom this question was addressed would instantly know and recognize that this was not a repetition of the first, but an entirely new and distinct question, calling either for an affirmative answer or for the specifying of some particular act or acts, which had either been omitted by the testator, the witnesses, or the notary, or all of them, or had been illegally and improperly performed.

We have not been called on to examine the act of revocation which is relied on in this case, with respect to its form or as to its being open to attack through-extrinsic evidence.

We understand it to be conceded that the act (leaving aside the question of its not containing affirmative declarations as to the disposal of the testator’s property) conforms as to form with the legal requirements for a nuncupative will by public act, and that it is on its face, clothed with the formalities required for such a testament. We understand it to be conceded that the District Court was justified in making the rulings it did, unless it was wrong in overruling appellants in the position taken by them before it and before this court, that by reason the absence of new direct affirmative disposal of her property by the testator, Fannie Seymour, in the act of revocation passed before Upton, notary, withdrew the act (on its face) from being taken as an act of revocation, thus leaving the original will in full force and effect. We think the District Court took a correct view of that particular question. The effect of our so holding is that the judgment appealed from must be affirmed.

The judgment appealed from being, in our opinion, correct, it is hereby affirmed.


source: Caselaw Access Project

author: Nioholls, O. J.

license: Public Domain

text:
    No. 12,089.
    Mrs. E. H. Gannon vs. New Orleans City & Lake Railroad Company and New Orleans Traction Company, Limited.
    In an action for damages for a death bywrongful act, failure of the plaintiff to connect by proper testimony all the necessary facts and circumstances.will not justify the Supreme Court in supplying such testimony by inferences.
    A PPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Joseph N. Wolfson for Plaintiff, Appellant.

      Denégre, Blair & Denégre aDd Hugh A. Bayne for Defendants, Appellees.
    Argued and submitted April 9, 1896.
    Opinion handed down May 4, 1896.
    Rehearing refused June 1, 1896.
    Action for fifteen thousand dollars for damages for death of minor child caused by the alleged gross negligence of defendant’s company. There was judgment for defendant and plaintiff appealed.
   The opinion of the court was delivered by

Nioholls, O. J.

On the 29th of April, 1894, Gladys Gannon, a little girl, five years and nine months old, died at the Hospital, in New Orleans, by reason of having had her thigh crushed or broken the day previous by one of the wheels of a car belonging to the New Orleans Oity & Lake Railroad Company. The present action is one by the mother of the child seeking a judgment against that company and the New Orleans Traction- Company for fifteen thousand dollars damages as resulting from the- injuries so received. Plaintiff asks five" thousand dollars damages in her own right and ten thousand dollars damages under and through the right of action which the child herself had. The case presented to us is one of those distressing accidents constantly occurring in a crowded city upon the streets of which railway companies have been permitted to operate their cars. We recognize the fact that the driver of a car may be called upon to exercise much greater caution where he sees ahead of him a child on or near the track upon which he is driving than he would were he to see a grown person occupying the same position. The accident in this case occurred at the corner of Oonstance and Bordeaux streets. The former is quite a narrow street-on which the defendant company, under a franchise from the city, has run one of its tracks. That track was then used for horse cars going from the upper to the lower part of the city. Oonstance street is parallel to and Bordeaux is perpendicular to the Mississippi river. On the morning of the accident, about 9 o’clock, the mother of the child, who occupies a house between Bordeaux street and the street below, on the side of the street known as the lake side of the street, in contradistinction to the opposite side, known as the river side, sent her over to a grocery at the upper corner of Constance and Bordeaux streets, on the river side of Constance. She went alone with a basket upon her arm to purchase charcoal at the corner stand. She had frequently before been sent alone on similar errands without injury. The mother watched her but from the window of her house. The child entered the grocery, made the purchase and ■came out upon the sidewalk with another child supposed to be the daughter of the groceryman. She had a sunbonnet upon her head and the basket on her arm. Stopping a moment on the sidewalk to take from the other child some fruit handed her, she attempted to pass across the street.

After a careful examination of the whole testimony, we have reached the conclusion that if any blame at all could attach to the idriver it would have been found in the interval of time between the crossing of the gutter by the child and her striking the mule or car. 'The car was being driven slowly — the driver had his hand upon the brake prepared to act as soon as anything should arise calling for action. It would be utterly unreasonable to exact that the mere presence of a child five or six years old upon the sidewalk or banquette with a basket upon her arm should force the driver of a street •car to bring it to a dead stop upon the bare possibility that it might leave the place it was then occupying securely, to either walk or run suddenly into danger. There was nothing, in our opinion, in the --situation to indicate to the driver that the child would attempt to •cross the street. The witness Huddlestone and the driver both state ’this to have been the fact. In reference to occurrences taking place .after the child moved across the gutter, Paddock, another witness, ■says he applied the brake before she struck the mule or car. He also says that he saw the child all the time and did not see Huddleistone at all. We do not know whether the witnesses were separated •or not, but the driver seems to have a thorough knowledge of the ■child’s position and actions. We do not attach to Huddlestone’s statement that Paddock was looking at him at the time of the accident the same importance that plaintiff’s counsel does. It is directly contradicted by Paddock, and the preciseinstant that the driver may have looked in the direction of Huddlestone, if he did so at all, is a matter too liable to mistake to have much weight — nothing is so rapid and shifting as glances from the eye. Huddlestone was on the upper side of Bordeaux street, and there was-nothing in his presence there calculated to call attention to him. Had he been on the lower side the driver might have supposed he was waiting to take the car. We understand the evidence to show that the child left the door of the grocery, walked diagonally to the corner of Constance and Bordeaux streets — paused there to take some fruit from a companion child and then walked perpendicularly across the street to the track — a distarce of eleven feet and a half. The driver says she ran across. Montgomery, a witness, that she walked; but whether she walked or ran the driver says that as she approached, and before she struck the mule or car, he applied the brakes. We cannot say, under the evidence, that he did not act as promptly as the occasion called for. There was certainly little time for action. Possibly a quick, loud call to her from the driver might have caused the child to halt, and been more efficacious than an application of the brakes, but no suggestion was made, either in the pleadings or argument, that he was guilty of negligence or omission of duty in not having done so. The precise point where the collision took place has not been established. The mother and Huddleston'e were on the opposite side of the street and their views were masked by the passing of the mule. We think, however, that the child must have first come into collision with the mule, but exactly where we can not say. The establishment of that fact is important only in testing whether or not the condition of the brakes should enter as a factor in the determination of the cause. Paddock says the shoe of the car was worn and that the car slipped possibly two feet further than it should. His answers are not as clear as would be desirable as to the cause of the slipping, as he refers to the slippery condition of the track on that morning as one of the causes. In answer, to a question whether he could have avoided the accident had the brake been in good order, he answered positively he could not. This answer was evidently supposed by plaintiff’s counsel to have been made with reference to the driver’s claim that the child struck the dashboard and did not strike the mule, for the question was repeated to him, “If the brake had been in good order could you have avoided the accident had the child struck the mule? To this he replied, Well, then he might. The question as again repeated was awkwardly put, but the obvious meaning of it was, If the child had struck the mule, could you have avoided the accident with the brakes in the condition they were then in.” To this he replied, he could not say that; but he certainly could have done so if the child had struck the front part of the mule — but he immediately added, there was a doubt in his mind; the car might have slipped for all he knew.

Under the evidence, it is difficult for us to fix with certainty what part the bad condition of the brake had in not preventing the accident. The driver says the car ran about six feet and a half before if came to a dead stop — that it slipped two feet and a half further than it should have done after the brakes were on. Did, or did not, the fact that the car stopped make any difference in the actual result? Did the slipping cause the injury, or merely aggravate it, and if it aggravated it merely, to what extent did it do so? Would the accident have resulted in something short of death had the car been stopped earlier? Would not the same result have occurred had the car'stopped two feet short of where it did?

The District Court thought the case too close a one to justify a judgment — that the evidence did not come up to the standard of the “reasonable certainty” exacted from a plaintiff.

We adopted as correct the statement of the witness Montgomery that the first point • at which the collision occurred, was about the flank of the mule. This brings the case within the statement of the driver that “ perhaps ” he might have stopped the car in time to have prevented the accident had the shoe of the car been in good condition. Had the evidence shown, with reasonable certainty, that the distance between the point of original collision and the wheel of the car was such as to have made it possible for the accident to have been avoided had the car been supplied with proper shoes, we would have reversed the judgment, but one of the links in plaintiff’s evidence is missing, and we do not feel authorized to supply it by inferences. Plaintiff has the burden on her throughout. She has to connect the defective shoe with the accident, and establish affirmatively that had the shoe been in good condition the accident could have been prevented. The effort of both plaintiff and the defendant seems to have been directed to the conduct of the driver, instead of to the defectiveness of the appliances and its results.

The case comes before us on appeal from a judgment of the District Court adverse to the plaintiff. We see no error in that judgment and it is hereby affirmed.


author: Miller, J.

text:
    No. 12,133.
    The State vs. Maurice J. Hart.
    APPEAL from. the Criminal District Court for the Parish of Orleans. Ferguson, J.

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

      T. J. Semmes, Evans & Bunn, A. B. Henriques, Rogers & Bodds and James A. Walker for Defendant, Appellant.
    Submitted on briefs April 11, 1896.
    Opinion handed down April 20, 1896.
    Rehearing refused June 1, 1896.
   The opinion of the court was delivered by

Miller, J.

For the reasons assigned in the case of State vs. Hart No. 12,132, it is ordered that this appeal be dismissed.


text:
    No. 12,134.
    The State vs. M. J. Hart.
    A PPEAL from the Criminal District Court for the Parish of Orleans. Ferguson, J.

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

      T. J. Semmes, Evans & Bunn, A. B. Henriques, Rogers & Bodds and James C. Walker for Defendant, Appellant.
    Submitted on briefs April 14, 1896.
    Opinion handed down April 20, 1896.
    Rehearing refused June 1, 1896.
   The opinion of the court was delivered by

Miller, J.

For the reasons assigned in the opinion in the case of State vs. Hart, No. 12,132, this day delivered, it is ordered that the appeal in this case be dismissed.


author: Miller, J. Watkins, J.

text:
    No. 12,132.
    State of Louisiana vs. Maurice J. Hart.
    The judgment refusing the change of venue applied for by the accused is not appealable apart from the appeal from the sentence, accorded him by the Constitution and laws. Constitution, Article 81; R. S. S., 1031.
    A PPEAL from the Criminal District Court for the Parish of Orleans, Ferguson, J.

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

      T. J. Semmes, Evans & Dunn, A. D. Uenriques, Rogers & Dodds and Jas. C. Walker for Defendant, Appellant.
    Submitted on briefs April 11, 1896.
    Opinion handed down April 20, 1896.
    Rehearing refused June 1, 1896.
   The opinion of the court was delivered by

Miller, J.

The accused appeals from the judgment refusing his application for a change of venue. The State moves to dismiss the appeal on the ground that the accused is allowed the appeal from the sentence, not from an interlocutory order or judgment.

The general principle is that errors in the orders or decisions of the lower court, made in the progress of the suit, must be presented to the appellate court on the appeal from the final judgment. If it were otherwise, and every question in the suit could be made the subject of an appeal, it is easy to see that delayed until each appeal should be determined, the final decision would admit of indefinite procrastination. The rule restricting the appeal to that from the final judgment inflexible in civil cases, with exceptions pointed out by the Code, is enforced as our examination impresses us, without qualification, unless modified by statute, in criminal cases. Thus, as Mr. Wharton puts it, “Error can be taken only after final judgment.” Wharton’s Criminal Practice, Sec. 3217. Prior to the Constitution of 1845, this court had no criminal jurisdiction, hence our decisions have been made with reference to the provisions in the constitutions beginning with that of 1845. But still, all the decisions affirm the general rule under examination as to appeals. The early case of Hornsby arose before the Constitution of 1845. In that case the Court of Errors and Appeals, called without objection from the State to entertain an appeal by the accused from an interlocutory judgment, overruling his motion in arrest, announced the opinion that the appeal could be taken only after verdict, judgment and sentence. In that ease the court heard the appeal, but stated if the State had moved to dismiss, the motion would have been sustained. If the right to appeal exists in this case, it must then be derived from the Constitution or laws. State vs. Hornsby, 8 Robinson, 583; State vs. May, 9 An. 69; State vs. Pratt, 9 An. 157; State vs. Johnson, 36 An. 306; State vs. Wilkins, Jr., 37 An. 62.

The argument for the accused maintains that the appeal in this case derives support from the article in the Constitution defining our jurisdiction in criminal cases. It is claimed there is an important change in the jurisdictional provisions on this subject in our present Constitution. The Constitutions of 1845, 1852, 1868 and 1880, it will be found, are substantially alike, except in one particular, in our view, not exerting any influence in this discussion. The jurisdiction in criminal eases is defined as extending on questions of law alone, to all criminal cases punishable with death or imprisonment at hard labor. Under the Constitution of 1868 the appeal was restricted to cases in which the punishment specified was actually imposed. Article 74. Under the Constitutions of 1846, 1852 and 1879, actual imposition of the punishment was dispensed with, and the appeal allowed, when the offences were of the character to admit of the death penalty or imprisonment at hard labor. Articles 63 of 1845, 62 of 1852, and 81 of 1879. The language in our present Constitution, like that of 1845 and 1852, in conferring criminal jurisdiction on this court is, that in criminal cases the jurisdiction exists on questions of law alone, when the punishment of death or imprisonment at hard labor may be inflicted or a fine exceeding three hundred dollars is imposed. All these articles simply define the class of cases appealable to this court. It is manifest, we think, that the articles do not deal at all with the stage of the suit when the appeal is to be taken. That was left to be determined on general principles or by statute, and when our present Constitution came into existence our jurisprudence and our statute both fixed the right of appeal of the accused as arising only on sentence. We can find nothing in the organic law to sustain the contention that the appeal from the interlocutory judgment is give the accused by the Constitution.

We turn to our statute on the subject, which has been in existence and under judicial notice for more than forty years, now section 1031 of the Revised Statutes. It provides: “ If final judgment has been rendered on any indictment where the punishment of death or hard labor may be inflicted, an appeal may be taken to the Supreme Court.” The statute follows the article of the Constitution as to the cases appealable, and supplies what the Constitútion leaves untouched, the time for. the appeal. The statute needs no comment. Nor can we perceive the Act No. 30 of 1878 in any respect modifies the statute. “In all case where appeals are allowable under the Constitution ” the act of 1878 directs the appeal may be verbal or in writing; the act further specifies the time within which the application is to be made, and contains other provisions as to the return day and filing of briefs. It remains, we think, that our statutory legislation gives the accused the appeal only from the sentence.

We can not appreciate that the application for a change of venue is an independent issue, not a part of the suit in which the application is made. If an incident of the suit like other-questions arising in the course of the trial, it comes here on the appeal from the sentence, or it can not reach this court at all. That an application relating to the mode of trial is an incident of the suit, we think is obvious and the application to change the venue manifestly refers to the method of trial. This court has recognized the right of appeal by the State from an order changing the venue. This decision was on the theory that the judge without observing the requisites of the law had directed the change. It was a final judgment in this sense; it ended the suit in this court from which the change was ordered. Besides, there it was the appeal of the State not the accused. In our view the application for the change of venue is to be viewed as incidental to the suit, part of it and not an independent proceeding, the subject of a separate appeal. This view is strongly enforced by the obstruction in the administration of justice that would result if an appeal from the refusal to change the venue was allowed on the theory that the petition for a change of venue was in itself a suit carrying the right of the accused to delay the trial for the offence until the determination of the appeal from the decision on the issue as to the venue.

We have considered the cases cited on behalf of the defendant. The decisions in 37 An. 675, State vs. Robinson, and 38 An. 633, State vs. Oliver, and 16 An. 159, State ex rel. Shelton vs. Judge, are urged as conclusive in his favor. The case in 16 An. was an appeal from a mandamus issued by the District Oourt compelling a magistrate to examine parties on a charge in reference to which they had given bonds to secure their appearance before the District Oourt. There was no discussion in the case to shed any light on the point involved here. The court held the mandamus might work irreparable injury, and maintained the appeal. In 38 An. 633 (State vs. Oliver), the accused claimed he was entitled to his discharge under the verdict of the jury and the arrest of the judgment ordered on his motion. If the prisoner’s contention was well founded he could not be tried again. Under the “ peculiar circumstances of the ease” a qualification well calculated to weaken the authority of the decision, the court maintained the appeal of the accused from the judgment ordering another trial. A decision o^ the same court, reported in 37 An. 82, was made under analogous circumstances. The accused conceived he was entitled to be relieved of any further prosecution of the charge because the court had discharged the jury. Without waiting for a second trial he interposed the plea of “ once in jeopardy” and appealed from the judgment overruling the plea. The court, affirming with emphasis that the accused could appeal only from sentence, dismissed the appeal. Whatever authority may be extracted from 37 An. 675 is, we think, dispelled' by the subsequent decision. Other cases cited on behalf of the defendant are appeals by the State, one type of which is the case of State vs. Brown, 27 An. 236, in which, too, the appeal was dismissed on the ground no sentence had been imposod. So far as the State is concerned, it is allowed to appeal from • judgments improperly sustaining motions in arrest, or similar errors subsequent to verdict, when nothing remains except to sentence (State vs. Ellis, 12 An. 390), but we can not see that this class of cases has any tendency to give the accused a right to appeal from incidental rulings or interlocutory orders made in his ease. Again, there is cited in the brief, 42 An. 318 (State ex rel. Poché vs. Judge), a civil suit in which an appeal was allowed from the judgment overruling the plea to recuse the judge. Other and perhaps stronger decisions in civil cases might be cited to show the application of the test of irreparable injury applied in civil cases, to determine the right of appeal. The exposition that irreparable injury can not, even in a civil case, be predicated on an order with reference to the mere mode of trial might also be furnished. Hawkins vs. Livingston, 10 Martin, 443. The question here, however, is as to the right of the accused to appeal in- a criminal case, and decisions in civil cases afford but limited, if any assistance.

We have given this question a careful examination and believe our attention has extended to all the authorities and phases of the discussion on behalf of the defendant. If the accused stands in the attitude depicted in other parts of the briefs to which our investigation has been in some degree directed, in making up our decision on the motion, he is not, by the dismissal of his appeal, deprived of the guarantees of a fair trial the Constitution and laws secure and courts enforce. But we can not, in response to the argument forcibly urged on us with respect to the grounds for the change of venue, recognize an appeal, contrary, as we believe, to the Constitution, laws and the fixed jurisprudence of the State.

The application is therefore dismissed.

Dissenting Opinion.

Watkins, J.

This appeal was granted from a decree of the trial judge disallowing the defendant a change of venue, and the motion to dismiss is grounded upon the theory that a defendant is not entitled to an appeal until after verdict and sentence.

The theory of the appellant is that the decree of the judge refusing his application for a change of venue is of the nature of a final judgment disposing of the issue and preceding the trial, and the review of which concerns the acuused, but with which the jury has nothing whatever to do.

That, if he has no recourse by separate appeal, his redress is irretrievably lost, as it has become merged into the verdict and judgment, and must be thereafter treated only as an incident of the case.

Counsel for the State relies mainly upon the provisions of Revised Statutes, Sec. 1001, which are as follows, viz.:

“If final judgment has been rendered upon any indictment where the punishment of death, or imprisonment at hard labor may be inflicted * * * an appeal may be taken on behalf of the accused from such judgment, returnable to the Supreme Court, as in civil cases,” etc.

And from the terms of the statute be draws the inference that an appeal is not permitted to the defendant at any prior stage of the proceedings.

But it must be observed that the phraseology of the statute is stated somewhat hypothetically, thus: “ If final judgment has been rendered, an appeal may be taken.” Yet, if that inference be accepted as correct, the right of appeal would be restricted to the defendant, as the statute says “an appeal may be taken on behalf of the accused ” — making no mention of the State.

The appellate jurisdiction of this court is neither granted nor defined by statute, but is granted and defined by the Constitution; and it declares, in broad and comprehensive terms, that “the Supreme Oourt shall have appellate jurisdiction only, which jurisdiction shall extend to * * * criminal cases on questions of law alone, whenever the punishment of death or imprisonment at hard labor may be inflicted,” etc. Const., Art. 81.

Construing the provisions of the statute and the Constitution together as laws in pari materia, we are to consider and determine whether an appeal can be prosecuted from a decree of a trial judge on a question of law arising in a criminal ease antecedent to a judgment rendered upon an indictment.

It may be at once conceded — and it has been the uniform and consistent course of the decisions of this court for a great many years— that “i/final judgment has been rendered upon an indictment,” in a ease punishable with death or imprisonment at hard labor, no ap - peal lies, on behalf of the accused, from any question of law, separate and apart from themerits of the case; but the language of the Constitution is in striking contrast with the statute, in that the appellate jurisdiction of this court is expressly extended “to criminal cases on questions of law alone,” without any restriction in regard to final judgment having been therein rendered, or with regard to the State or the accused being entitled to exercise that right.

It appears to have escaped the attention of counsel for the State that the statute with reference to appeals in criminal cases received a most decided change by a legislative enactment in 1878; which enactment provides, “ that in all criminal cases in which appeals are allowable under the Oonstitution, the party desiring to appeal shall file his motion,” etc. Section 1 of Act 30 of 1878.

The final section repeals all former laws upon the same subject matter.

The distinguishing characteristics of this act are: (1) it particularly specifies all criminal cases in which appeals are allowable under the Constitution, without regard to final judgment having been rendered; (2) it confers the right of appeal upon the party desiring to appeal, without restriction as to the State or the accused.

This statute seems to have escaped observation by the court in State vs. Wilkins, 37 An. 92, the leading case cited by counsel for the State, as will be shown by the following extracts which we have selected from the brief, viz.:

“On general principles an appeal from an interlocutory order or judgment in criminal matters doesnotlie. It seemsnecessary to continue to repeat the announcement that our Code of Practice does not assume to regulate criminal pleading, and has nothing whatever to do with it. An appeal in criminal matters is regulated by the common law rules of practice, except when modified by our own statutes, and the common law practice in criminal trials does not know such a proceeding as an appeal from an order (or judgment, if you will) overruling a plea which does not determine the case. The appeal is from the sentence or final judgment. Our statute is, that if final judgment has been rendered an appeal may be taken (Revised Statute, Sec. 1001), and it is but a recognition of the universal rule that where the ruling of the lower court does not dispose finally of the ease, it can be'reviewed only on appeal from the judgment that does dispose finally of it. Wharton Cr. Pr. and Pl., Secs. 775-777.” (Our italics.)

It is evident that appeals in criminal cases have been recognized and controlled by the provisions of the organic law, ever since the adoption of the Oonstitution of 1845, Art. 63 of which is identical in terms with 81 of the present Oonstitution.

Prior to 1843, appeals were not permitted in criminal cases; and •during that year, the Legislature established the Court of Errors and Appeals, with appellate jurisdiction to review questions of law in criminal cases. But the Constitution of 1845 took its place. In State vs. Adam, 8 R. 571; State vs. Charlot, 8 R. 529; State vs. Fount, 2 An. 837, and State vs. Brown, 4 An. 505, these changes of the statute and constitutional law are treated of.

It is, therefore, clear that the provisions of the act for the Territorial Legislature of 1805, which adopted the precepts of the common law in reference to criminal proceedings, had nothing to do with appeals in criminal cases, which were not permitteduntil nearly forty years thereafter. State vs. Seiley, 41 An. 143.

We may consequently discard all common law authorities as having no application to the question before us.

That the authority of Act 30 of 1878 has been frequently recognized by this court since the date the Wilkins case was decided, as controlling the method of appeal, is attésted by the following cases, amongst others, viz.: State vs. Joseph, 38 An. 33; State vs. Cohn, 38 An. 42; State vs. Jenkins, 36 An. 865; State vs. Burns, 38 An. 363; State vs. Meddler, 38 An. 390; State vs. Furniss, 38 An. 484; State vs. Butler, 35 An. 392; State vs. Stephens, 38 An. 928; State vs. Estoup, 39 An. 906; State vs. Cloud, 40 An. 618; State vs. Lyon, 41 An. 952; State vs. Jolivette, 43 An. 509; State vs. Bevell, 47 An. 48.

It will be ascertained to be a fact, that in repeated decisions of this court, both prior and subsequent to the passage of the act of 1878, the right of appeal has been recognized in favor of both the State and the accused, on questions of law entirely independent of the final judgment on the merits relative to the guilt or innocence of the accused; and that it has been repeatedly recognized to exist subsequent to judgment, as well as antecedent to judgment upon an indictment.

Section 1001 of the Revised Statutes is the exact reproduction of Sec. 26 of Act 121 of 1855, when the Constitution of 1852 was in force; and the appellate jurisdiction of the court in criminal cases was practically the same as it is under the present Constitution.

It continued to' be the same under the Constitution of 1864, Art. 70; but in the Constitution of 1868, the language was so altered as toread: “whenever the punishment of death or imprisonment at hard labor * * * is actually imposed,.” Art. 74. Yet, there was no corresponding change made in the statute, notwithstanding this important restriction upon the right of convicted persons to appeal, as well as that recognized to exist in the State.

Keeping in view the general rules thus formulated, a review of the jurisprudence prior and subsequent to the passage of the act of 1878 will materially aid us in solving the question propounded in the motion of the State to dismiss the defendant’s appeal.

I.

We may take as the starting point State ex rel. Shelton vs. Judge, 16 An. 159, which was decided under the Constitution of 1864. Relators had been arrested and brought before a justice of the peace for preliminary examination; and having waived examination, they objected to the examination being proceeded with. Thereupon the prosecutor applied for a writ of mandamus, to compel the justice to proceed with the examination of the witnesses, in order to perpetuate their testimony; and the writ having been made mandatory, the respondent demanded an order of appeal, and same was refused by the District Judge. ,

Relators applied to the Supreme Court for a writ of mandamus to compel the District Judge to grant them an appeal, and indisposing of that question the court, speaking through Chief Justice Merrick, said:

“The Constitution gives this court appellate jurisdiction of questions of law, whenever the offence is punishable at hard labor. Constitution, Art. 62.. A question of law was then raised in the District Court in a case over which this court has appellate jurisdiction, and the question of law can not be raised by this court in any other manner than by a direct appeal from the decision on this collateral matter affecting the rights of the accused, for the decision on this branch is final” — and this court made the writ mandatory.

The provisions of the Constitutions of 1852 and 1864 are identical in this regard.

That interlocutory decrees, possessing the quality of finality, were, previous to that time, regarded as appealable, is intimated in several eases.

For instance, in State vs. Tucker, 7 An. 551, the court used this expression, viz.:

The record contains neither a final judgment nor interlocutory-decree upon which we are authorized to act.”

And in State vs. Bouchon, 20 An. 394 — decided since — the court said :

Yet there is not in the transcript of appeal either a final judgment signed by the judge, nor such interlocutory judgment as will work irreparable injury.''

In State vs. Cheevers, 7 An. 40, the right of the State to appeal from an interlocutory decree of the trial judge, in limine and before the empaneling of the jury, sustaining the defendant’s plea of autrefois acquit, was recognized; and thereon the case was examined and the judgment affirmed.

In State vs. Hood, 6 An. 179, the right of the State was recognized to appeal from an interlocutory judgment quashing an information.

Likewise in State vs. Hendry, 10 An. 207; State vs. Ellis, 12 An. 320 — and other cases.

But the jurisprudence on this question is distinctly summarized in State vs. Cason, 20 An. 48 — a case decided in 1878, the year in which the Constitution of that year was adopted — the appeal having been prosecuted by the State from an interlocutory judgment quashing an indictment.

The counsel for the accused filed a motion to dismiss, upon the ground that its right of appeal is limited to cases' “ where indictments have been quashed before trial, or held bad oh demurrer, and can not be extended to cases in which trial has been had and verdict rendered.”

But the court, speaking through Mr. Justice Ilsley, said:

“ The Constitution, in giving appellate jurisdiction to this tribuna* upon questions of law in certain criminal cases, does not confine our power to an examination of questions arising before or after verdict, nor does it limit the right of appeal to either party.
“ We can not therefore draw a distinction where the law makes none. Ubi lex non distinguit, nec nos distinguere debemus.,’>

That decision gives a clear and cogent interpretation of the constitutional grant of appellate jurisdiction to this court in criminal, cases, and there can be no misunderstanding of it.

But, when the terms of the Constitutions of 1845, 1852 and 1864 “ may be inflicted,” were so altered by those of the Constitution of 1868 as toread “is actually imposed,” the jurisprudence received a corresponding change, and, in the following decisions of this court, which were rendered thereunder, the right was denied either State or accused to appeal in any case where a final judgment had not been rendered. State vs. Redding, 21 An. 188; State vs. Fournet, 22 An. 564; State vs. Gay, 22 An. 460; State vs. Welsh, 23 An. 142; State vs. Brown, 27 An. 236; State vs. Banks, 28 An. 92; State vs. Cullom, 28 An. 49.

It was during this period that the statutes were revised and Sec. 26 of Act. 121 of 1855 was crystallized into Revised Statntes, Sec_ 1001.

But when, in 1879, the original terms employed in constitutions prior to that of 1868 were again incorporated into the organic law, the jurisprudence was readjusted so as to conform thereto; and this change is well stated in State ex rel. Gabriel vs. Judge, 33 An. 1227, same being a proceeding by mandamus to coerce the trial judge to grant the defendant an appeal from a jndgment sentencing him to pay a fine of twenty-five dollars, under conviction of larceny.

In that case this court, recognizing the right of appeal to be controlled by the Constitution notwithstanding the act of 1878 had been in the meantime adopted, used the following language, viz.:

“ Our present constitutional provision differs toto ccelo from that of 1868, the latter limiting the right of appeal to those cases in which the punishment of death, or imprisonment at hard labor * * * is actually imposed,” while the former extends “to those where, under the law governing them, they may be inflicted,” etc.

The principle announced in that case was affirmed in State vs. Guillory, 42 An. 581. State vs. Williams, 37 An. 200; State vs. Taylor, 34 An. 978.

And in keeping with that principle wé find, in State vs. Oliver, 38 An. 632, a striking application of it, and in the course of their opinion the court, speaking through Mr. Justice Fenner, said:

“The judgment appealed from sustained a motion in arrest of judgment on the ground of defect in the verdict, and remanded the prisoner to custody to await trial. The accused, contending that the legal effect of sustaining the motion in arrest, on the ground stated, was to terminate the case and entitle him to a discharge, and thus make a final judgment, prosecutes this appeal to correct an alleged error in remanding him to custody.
“He is entitled to have the question passed upon'.”

In that ease there had been a trial and verdict, but the trial judge had sustained the defendant’s motion in arrest; and by this means the verdict was vacated, no sentence pronounced and the accused was remanded to await trial, and in the meanwhile to remain in custody.

Favoring the liberty of the citizen, this court entertained and passed upon his appeal.

■ Another striking illustration is found in State vs. Williams, 38 An. 960, wherein the right of the State to appeal from an interlocutory decree of the trial judge, granting the accused a new trial ex proprio motu, was sustained, andón the trial the order was annulled and set aside.

But in the very recent case of State vs. Davis, No. 12,084 — which was decided on the 2d of March, 1896 — we find the doctrine of the Williams case extended, and the .aforesaid rule more fully exemplified.

In tha't case it appears that the defendant was indicted, tried and found guilty of embezzlement; and a new trial having been granted him upon his own motion, the State appealed.

Entertaining the appeal, this court, speaking through Mr. Justice Breaux, said:

“ Ordinarily no appeal lies in a criminal case from a motion granting a new trial-. To reverse an order granting a new trial it must be manifest that an error of law was committed in granting a new trial.
“We do not think that in this case there was an abuse of discretion.”

It is true, that after having examined and considered the question raised, and approved ofthe decision of the trial judge, the decree is “the appeal is therefore dismissed;” yet it is none the less a final judgment, that disposed of the only question at issue in the appeal.

In so deciding, this court followed, exactly, the precedent which was established in State vs. Hornsby, 8 Rob. 583, wherein the court entertained an appeal by the State from an interlocutory decree and decided it upon its merits, prior to final judgment on the indictment. This decree was rendered previous to the adoption of the Constitution of 1845, thus bringing the jurisprudence of the two eras together.

II.

In repeated decisions, this court has affirmed the right of the State to prosecute an appeal from an interlocutory judgment of the tria 1 judge quashing an indictment, under constitutions prior to that of 1868, of which the following will serve as illustrations, viz.: State vs. Hood, 6 An. 179; State vs. Hendry, 10 An. 207; State vs. Ellis, 12 An. 390; State vs. Ross, 14 An. 364; State vs. Clay, 12 An. 431.

Of those of this court under the Constitution of 1879 the following are illustrations, viz.: State vs. Humphries, 35 An. 966; State vs. Robinson, 37 An. 673; State vs. Laqué, 37 An. 854; State vs. Taylor, 34 An. 978; State vs. Brabson, 38 An. 144; State vs. Jefferson, 39 An. 331; State vs. Dubois, 39 An. 676.

The same rule has been applied to tbe right of the State to appea from an interlocutory decree of the trial judge, sustaining a motion in arrest of judgment. State vs. Morgan, 35 An. 1139.

III.

It has been repeatedly held that a surety upon the appearance bond of an accused person who has not been tried upon an indictment, and is at large, has the right to avail himself of the appellate jurisdiction in criminal cases, without regard to the amount involved— the theory being that the character of the case in which the bond is taken attracts its jurisdiction to the bond. State vs. Cassidy, 7 An. 276; State vs. Williams, 37 An. 200; State vs. Burns, 38 An. 363; State vs. Balize, 38 An. 452; State vs. Hendricks, 40 An. 719; State vs. Ansley, 13 An. 298; State vs. Desforges, 5 Rob. 253; State vs. Toups, 44 An. 896.

IV.

An interlocutory decree may or may not dispose of the question that is before the court and is decided. If it does finally and irrevocably dispose of the question, it is as much a final decree of the court as a final judgment on the merits of the case.

The essential difference between an interlocutory and a final judgment is, that the former disposes of some collateral issue outside of the principal issue, while the latter disposes of the merits of the controversy. In criminal matters there is this further distinction, that the judge tries and decides the interlocutory question, and the jury decides the merits of the case with regard to the guilt or inno - cence of the accused.

A fair illustration of the principle is found in State ex rel. Poché vs. Judge, 42 An. 317, wherein the respondent having refused to grant relator a supensive appeal from a decree overruling his plea of recusation, this court made a writ of mandamus peremptory, saying:

“ An interlocutory judgment is one which does not decide on the merits. It is either ancillary to, or executory of, the final and complete adjudication of the cause.
“ The matter at issue, on the plea of recusation,.in no way relates to the persons of the litigants, or to any subject involved in the controversy between them. * * *
* * * “Whether the plea is well or ill founded is a question which can in no manner influence the judgment on the merits of the litigation, or on any subject growing out of the differences of the parties touching same.”

A very similar question is raised here.

The defendant prays for the removal of the cause into a different parish for trial, because, in his opinion, he can not obtain a fair and impartial trial in the parish of Orleans; while in that case the object to be attained, and the effort was, to depose the judge on the ground that, by reason of his personal interest, he was disqualified to decide the merits of the case.

In each case, the question was one that could be tried but once; and having been decided, it would not recur again.

Indeed we might well adopt the language of the Chief Justice in that case when he says:

“ There is but one question raised, and it concerns the qualification of the judge. A judgment on that issue can not be interlocutory, for such a judgment would imply a final judgment in futuro. As the question raised, when once decided, is no more to recur, it follows that the judgment on it would be and is final judgment on that issue.”

V.

Applying the legal principles which ara outlined above, to the motion of the State to dismiss the defendant’s appeal, what is the conclusion at which this court must arrive?

In treating of defendant’s rights with reference to a change of venue, in State vs. Daniel, 31 An. 92, Mr. Justice De Blanc, speaking for the court, said:

' “ It is manifest that sucha motion is addressed, exclusively, to the judge, and that he alone can and must pass upon the sufficiency 'of the facts alleged' and testified to;” and then adverting to the fact that no proof accompanied the bill of exceptions further observed, that had that been done “ he would have presented a question of law resting on admitted facts, and that question we would have been bound to consider aud decide.
“We believe, as urged by defendant’s counsel, that in regard to such an application the discretion of the judge is not unlimited; that when prejudice does exist, when its existence is proven, the accused has an absolute right to a change of venue, and that from, an improper denial of that right he may appeal to this court.”

It is provided in the bill of rights that “in all criminal prosecutions the accused shall enjoy the right to a speedy public trial by an impartial jury;” but this privilege is coupled with the proviso “that the accused in every instance shall be tried in the parish where the offence shall have been committed, except in eases of change of venue.” Constitution of 1879, Art. 7.

The framers of the organic law, ex'findustria, added the qualification to the proviso, “except in cases of change of venue.”

Not only is this so, but they deemed it a matter of sufficient importance to incorporate therein this further provision, viz.:

“The Legislature shall provide by law for a change of venue in civil and criminal cases.” Article 158. Identically the same provision occurs in all previous constitutions. Constitution of 1845, Art. 115; Constitution of 1852, Art. 112; Constitution of 1864, Art. 115; Constitution of 1868, Art. 112. '

In pursuance of these constitutional behests the general assembly have, at different sessions, enacted such statutes, and altered and amended same, until we have now only the provisions of the Revised Statutes, and the more recent act of 1876; and when construed together the rights and duties of the State and the accused, in this regard, are practically upon the same footing. Act 95 of 1876; Revised Statutes, Secs. 1022, 1023.

In the Revised Statutes the rules formulated under the distinct heading “Change of Venue,” like that of “Recusation of the Judges in Oriminal Oases” are altogether distinct from “Mode of Procedure.”

Let us examine the character of the. proceedings.

The statute requires that when any person indicted shall desire a change of venue, he shall apply therefor to the judge in a sworn application in which he shall state, substantially, “that by reason of prejudice existing in the public mind he can not obtain an impartial trial in the parish wherein the indictment is peading.” R. S., Sec. 1022.

The direction of the statute is further, that such application “shall be accompanied with proof under oath, and the judge shall hear the parties and their witnesses;” and if, on such hearing and examination of the evidence adduced, he shall be of opinion that the party applying can not have a fair and impartial trial in the parish where the indictment is pending, the judge shall award the change of venue to the adjoining parish,” etc. R. S., Sec. 1023.

The language of the act of 1876, amending Sec. 1021 of the Revised Statutes is, “wherever if shall be established by legal and sufficient evidence that a fair and impartial trial can not be had in the parish where the case is pending,” the judge shall change the venue.

That the change of venue involves a question of jurisdiction as well as of constitutional right, there can be no question; and this fully appears from the opinion of this court in Brouillette vs. Judge, 45 An. 243, in which Justice Fenner, speaking for the court, said:

“ This statute so obviously contemplates a trial of the issue on evidence to be adduced, including the right to cross-examine witnesses for the State, and also, if so desired, to produce witnesses on their own behalf, that we are bound to conclude that the learned judge must have inadvertently overlooked its existence. Act 95 of 1876.
* * :¡t sf* * * * if*
“ Reference to See. 1023, Revised Statutes, regulating proceedings when the application for change of venue is made by defendants, shows the nature of the proceedings contemplated, clearly involving a contradictory hearing of the parties and their witnesses ” (pp. 45 and 46).

The court, in the exercise of its supervisory jurisdiction, entertained a writ of prohibition at the instance of the indicted defendants, and annulled the respondent’s order changing the venue of the prosecution against their wishes; and we made the writ peremptory upon the ground that the respondent exceeded the bounds of his jurisdiction in ordering a change of venue without such contradictory hearing and judgment based thereon.

The guarantee of the bill of rights is that the accused shall have' a speedy public trial by an impartial jury,” and if, upon examination and trial of that question, it be ascertained that this guarantee can not be made effectual in the parish where the crime is alleged to have been committed, its further guarantee is that he shall have a change of venue.

In the Williams case (38 An. .960) we entertained an appeal by the State from an order of the judge, granting the defendant a new trial ex proprio mote, because it involved a question of the verdict operating the bar of once in jeopardy under Art. 5 of the Constitution; it is equally as clear, and just as free from doubt, that the defendant’s appeal must be maintained, as, in his opinion, his constitutional guarantees of an impartial trial and change of venue have been denied.

For these reasons I dissent from the opinion expressed by the majority of the court.


author: Watkins, J.

text:
    No. 12,118.
    The State of Louisiana vs. Fleming Robertson.
    An indictment which, in one count, charges burglary and larceny is bad, and thereunder the accused can not be legally convicted of larceny.
    A PPEAL from the Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

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

      A. & Chas. Fontelieu for Defendant, Appellant.
    Submitted on briefs May 9, 1896.
    Opinion handed down May 18, 1896.
   The opinion of the court was delivered by

Watkins, J.

The defendant was indicted for the perpetration of the crime of burglary and larceny, committed in a dwelling house, and having been convicted of petit larceny and sentenced to imprisonment at hard labor in the State Penitentiary for a period of ■eighteen months, he prosecutes this appeal, relying upon a single bill of exception taken to the charge of the trial judge.

Among other things, the judge stated in his charge to the jury that they could find the three following verdicts, viz.: (1) Guilty as charged; (2) Guilty of larceny; (3) Not guilty; and the defendant, by counsel, excepted that under the indictment he could not be convicted of larceny, and his charge was erroneous.

There is but one count in the indictment, and it charges that the defendant did, in the night-time, with force and arms, a certain dwelling house feloniously and burglariously break and enter, with the intent to steal the goods and chattels of one Rogers Wadden, then and there situated; and that he did take, steal and carry away the goods and chattels described as being situated therein.

The statute declares that “whoever, with intent to kill, rob, steal, etc., shall, in the night-time, break and enter a dwelling house, on conviction shall be imprisoned at hard labor not exceeding fourteen years.” Revised Statutes, Sec. 851.

Other sections of the Statutes ars quite similar; but neither of them denounces the crime of larceny, or makes any provision for its punishment; this is covered by a different section altogether. Revised Statutes, See. 812.

Neither are the two crimes of the same generic class.

In State vs. Alfred Ford, 30 An. 311, the question here presented was examined and decided in fa mr of the defendant, the court saying:

“The offence of burglary is quite distinct from that of larceny. They belong to different families of crime, and it would be an ■enlargement of the rule, not warranted by authority or precedent, to hold good a conviction for one of them upon an indictment for the other.”

In that ease, as in this, defendant was indicted for burglary and larceny in one count.

We are of opinion that the defendant’s bill of exceptions was well taken, and that the verdict and sentence must be set-aside.

It is therefore ordered and decreed that the verdict of the jury, and the sentence thereon pronounced, be annulled and set aside; and it is further ordered and decreed that the accused be set at liberty and his bond canceled.


author: McEnery, J.

text:
    No. 12,119.
    State of Louisiana vs. Fleming Robertson.
    An accused can be tried for an offence and sentenced, if found guilty, notwithstanding he has been convicted of another offence and is awaiting sentence.
    Under an indictment charging on one count burglary and larceny, it is error for the trial judge to instruct the jury that they can find the accused guilty of larceny.
    APPEAL from the Nineteenth Judicial District Oourt for the Parish of Iberia. Voorhies, J.

      M. J. Cunningham, Attorney General, R. F. Broussard, District' Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      A. & Charles Fontelieu for Defendant, Appellant.
    Submitted on briefs May 9, 1896.
    Opinion handed down May 18, 1896.
   The opinion of the court was delivered by

McEnery, J.

The defendant was indicted in one count for burglary and petty larceny, and was convicted of petty larceny.

He objected to going to trial on the ground that he had been convicted in another case of an offence, and could not be tried and sentenced for any other, until the expiration of his sentence under the first conviction.

There is no reason why his trial for the second offence should be postponed until the expiration of the sentence under the first conviction. Public policy alone protests against such a course. Why should the defendant be permitted, because he has committed another crime, to postpone the trial? Why should the commission of the second offence give him a privilege which its wow-commission .would not have conferred ? Death of witnesses, their absence, the weakening of their memories as to the facts, and all the attendant advantages of a continuance would be in his favor, mu :h to the detriment of public interest, which requires a speedy trial of all offenders against the law. There is no sound reason why the defendant can not be tried and sentenced, the punishment to begin at the expiration of the first sentence imposed.

The judge charged the jury that under the indictment they could bring in a verdict of guilty of petty larceny. To this charge the defendant excepted.

The trial judge was in error for the reas.ons assigned in case of the State vs. same defendant, ante, p. 1024.

It is therefore ordered, adjudged and decreed that the verdict and sentence be set aside, and it is now ordered that this case be remanded to be proceeded with in due course of law aid in accordance with the views herein expressed.


text:
    No. 12,131.
    State ex rel. Otto Knoop vs. The Judge of the Second City Court of the City of New Orleans.
    Relator having been sued in the Second City Court of the city of New Orleans for the sum of twenty-five dollars, as the amount of a call of 10 per cent, upon five shares of the capital stock of a corporation, and having answered that he was not the holder of said shares of stock, and consequently did not owe the amount demanded of him, and upon that ground excepted to the original jurisdiction of the respondent’s court: Held, that if relator shall makegood this defence, it would be a good reason why judgment on the merits should go in his favor, but not that the jurisdiction of respondent should be defeated.
    QN APPLICATION for Writs of Certiorari and Prohibition.

      Frank MeGloin for Relator.

      Perey Roberts and J. Zacli hr-iwing for Respondents:
    When the jurisdiction of a court depends upon the amount in controversy, it is to be determined by the amount involved in the particular case, and not by any contingent loss which may be sustained by either one of the parties through the probative effect of the judgment, however certain it may be that such loss will occur. New England Mortgage Oo. vs. Gay 145, U. S. 123; Clay Center vs. Farmers’ Loan'& Trust Company, Ibid. 224; Elgin vs. Marshall, 106 U. S. 578; State ex rel. Sweeney vs. Judge, 40 An. 1; Ibid., 39 An. 619; State ex rel. Beauvais vs. Judges, 48 An. 672.
    Submitted on briefs April 6, 1896.
    Opinion handed down May 18, 1896.
   The opinion of the court was delivered by

Watkins, J.

The representations of the relator are that the Interstate Fire Association instituted suit against him in the respondent’s court for an instalment of ten per cent, upon certain shares of stock of said corporation, amounting to twenty-five dollars. That he appeared and answered that he was not a stockholder in said corporation, and was, consequently, not indebted to the plaintiff in the amount demanded of him. That, subsequently, he excepted to the jurisdiction of the respondent’s court to hear and determine the issue joined for the reason that the alleged call of twenty-five dollars represents stock of said corporation of the par value of two hundred and fifty dollars, an amount in excess of the jurisdiction of his court; and that the demand of the corporation, as well as the answer of the relator, necessarily involves the entire contract. That unless restrained by our writ of prohibition respondent will proceed to hear and determine said suit to his great and irreparable injury.

The return of the respondent admits the state of facts to be as related above, but he insists that his court has jurisdiction, and is perfectly competent to decide the cause.

The jurisdiction involved is original and not appellate; and consequently we are not to be exclusively guided by the decisions of this court interpreting its appellate jurisdiction.

The suit in the respondent’s court is upon a simple moneyed demand for the sum of twenty-five dollars; and the answer is that relator does not owe the debt because he is not the owner of the shares of stock upon which the call is predicated. Having created this issue as a matter of defence, relator as defend am excepts to the jurisdiction of respondent’s court; and failing to secure a favorable ruling upon his exception,- he has applied to this court for relief by-prohibition.

The original record is before us, and fully confirms the statements we have related; and amongst other things which has attracted our attention is a certificate of stock in the plaintiff company which was apparently signed by the relator.

In our opinion the defence, if made good by the relator, would be good cause for the respondent to decide the case in his favor, rejecting the company’s demand; but that the exception founded upon relator’s answer can not oust the jurisdiction of the respondent's-court.

For these reasons the preliminary writs are set aside and relief refused the relator at his cost.


author: Breaux, J.

text:
    No. 12,152.
    State of Louisiana ex relatione Louis H. Huson, Sheriff and Tax Collector vs. Bank of Mansfield.
    Banking institutions, incorporated under the banking laws of the State, with a capital less than the minimum, expressed in paragraph thirteen of the revenue license law, can not be required to pay license.
    The legislative intention to levy a license must be distinctly shown; it can not be extended beyond the clear import of the words of the statute.
    If it were not the intention of the General Assembly to exclude them from the terms of the law, the omission can not be supplied by construction.
    APPEAL from the Ninth Judicial District Court for the parish of De Soto. Hall, J.

      J. B. Lee, District Attorney, for Plaintiff, Appellant.

      Elam & Egan for Defendant, Appellee.
    Submitted on briefs May 20, 1896.
    Opinion handed down June 1, 1896.
   The opinion of the court was delivered by •

Breaux, J.

The relator is the sheriff and ex-officio tax collector of the parish of DeSoto. He alleges that the defendant bank is indebted to the State of Louisiana and to the parish of DeSoto for license tax for the years 1895 and 1896.

The defence to this claim is, that the Legislature has not imposed any license tax on incorporated banks having a capital of less than fifty thousand dollars.

It is admitted that the capital stock of the defendant company is fifteen thousand dollars, and that it has no surplus.

The judgment of the District Court is against the plaintiff.

The plaintiff appeals.

The authority delegated to the Legislature to impose a license tax is contained in Art. 206 of the Constitution.

In accordance with the authority conferred, the Legislature enacted the statute No. 150 of 1890. The article of the Constitution did not ordain that all persons or corporations pursuing business or calling should pay a license tax, but left it to the General Assembly to levy a license tax. The power must be exerted by legislation in order that payment may be required.

The charge must be imposed in clear and unambiguous terms. It can not be made to rest upon mere inference or implication.

The provisions of the existing law relating to the .license tax negative the proposition that it was the legislative intention to impose such a tax upon incorporated banks having no more capita^ than had the defendant.

The lowest limit of the license is seventy-five dollars, as expressed in the thirteenth class of the existing license law.

The lowest amount subject to the license tax is fifty thousand dollars. Under a law authorizing the collection of a tax from a banking institution having that capital or more, we find no warrant to collect a tax from a banking institution having less than that amount of capital. A minimum limit, as to licenses, has been fixed which we must respect. There is no limit to the amount in the ascending grades, commencing with the thirteenth class of the act in question. The first-class provides for a license when “the declared ornomina capital is five million dollars or more, while in the thirteenth class the amount is expressly limited to fifty thousand dollars, thereby rendering it impossible to collect a license from a banking institution the capital of which is less than the amount we have before stated as being the minimum. The classes are distinct as set forth in the statute and must be enforced as enacted.

It would be assuming a right if we were to change the limits expressed. If it were the obvious intention and meaning of the Legislature to exempt these institutions with capital less than the amount before stated, viewed as a question of power, the legislative will must control. A license law can not be extended by construction.

If it were not the intention, but a casus omissus, we would be assuming a right to supply what we might conceive to be its defects. Omissions can not be supplied by the courts.

No license can be exacted not imposed by words of the statute. Barnard, Sheriff and Tax Collector, vs. Gall & Pharr, 43 An. 959.

The power delegated to the General Assembly to levy a license tax is discretionary and not mandatory. City of New Orleans vs. J. Mule, 38 An. 826, 828.

All arguments based on intention must be addressed to the Legislature.

The one alternative with us under the present regulations for license taxation is to affirm the judgment.

The judgment is affirmed.


text:
    No. 12,101.
    W. H. Henderson et als. vs. Sun Mutual Insurance Company et al.
    Damages having been sustained by plaintiffs’ building by the failing of an adjacent wall, occasioned by Are, the insurance company availed itself of an option in its contract to repair the injury. In the meanwhile — the necessary repairs being in course of completion — an accident is caused by the faultiness of the materials used and the carelessness and negligence of the workmen in the defendants’ employ, whereby the building is collapsed and rendered untenable, and the tenant is rendered unable to continue his occupancy: Held, that plaintiffs have stated a cause of action upon alleging these facts for the recovery of damages ex delicto, from defendants.
    APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Fenner, Henderson & Fenner, for Plaintiffs, Appellants.

      Denégre, Blair & Denégre and Leovy & Leovy, Carroll & Carroll for Defendants, Appellees.

      Argued and submitted May 22, 1896.
    Opinion handed down June 1, 1896.
   The opinion of the Court was delivered by

Watkins, J.

This is an action for the recovery of damages ex delicto, the charge, substantially, being that plaintiffs’ property having been insured by the defendants, a loss by fire having occurred, and they, having exercised an option of the contract to repair the fire damage done to the building, did the work so faultily, that the structure collapsed and become untenantable and hence they have been deprived of its use and enjoyment.

The defendants tendered a plea of no cause of action, and it having been sustained and the suit dismissed, the plaintiffs have prosecuted this appeal. The proposition for the consideration of this court is simply whether the truth of plaintiffs’ averments being admitted, can a valid and exigible judgment be predicated upon the petition. The petition is elaborate and appears to have been drawn with care and precision.

It alleges the contract of insurance and a loss occasioned by a fire in the adjoining building whereby plaintiffs’ building was seriously injured during the tenure of the contract. That the defendants exercised the option of the contract of insurance and undertook to repair, rebuild or replace the property lost or damaged within a reasonable time. That the injury plaintiffs’ building sustained by the fire was not of a character or of that extent to make it untenantable, but the defendants employees and workmen performed their work so carelessly and unskilfully that the building collapsed and became untenantable on that account, requiring its entire reconstruction.

That at the time of this work of repair the building was under lease to a responsible tenant at a monthly rental of four hundred and thirty-seven dollars and fifty cents, which was revoked by the demolition of the building, the tenant on that account having declined to pay his rent.

Upon the foregoing averments the prayer of the petition is for judgment against defendants in solido for the sum of five thousand and seven dollars and sixty cents in money as the resulting damages sustained.

This is in no sense a suit for damages ex contractu or ex quasi contractu; but a suit for damages ex delicto. The defendants are not sued for rent, but the contract of rent is pointed out as clearly indicating the measure of the plaintiffs’ damages. This is clearly shown by the averment of the petition, to the effect that they notified the defendants “that if the lease was annulled they would be held liable to petitioners for the loss of rent thereby as damages resulting through their fault.”

Surely that is not an appropriate averment in a suit upon a contract. True it is, that there had subsisted and was still subsisting between the parties a contract of fire insurance, but the defendants had elected to repair the fire damage and place the building in the same good condition it was before the fire. That work had been undertaken and was in progress. There was no objection or demurrer made to that election by the defendants. In that manner the relative rights of the parties had been adjusted. But the building being tenantable and still occupied by the plaintiffs’ lessee, an accident occurred, the building collapsed, and the tenant abandoned the leased premises, all on account of the fault and negligence of the defendant’s workmen and employees, and the faultiness of their workmanship and material. This suit is for the purpose of recouping the loss sustained through this negligence and fault.

Admitting the foregoing statement of facts, substantially, the judge a quo makes the assignment of his reasons for his judgment, viz.:

“For the purpose of this suit, the contract of insurance is virtually out of the case, and the plaintiffs are in the same position as though they were suing for damages resulting from the careless and unskilful execution, by the defendants, of a contract for the repair of the building in question.
‡‡‡‡‡‡‡‡
“The exception, in my opinion, is well taken. The loss sustained by plaintiffs by reason of the cancellation of their contract of lease, with Meyer & Bro. was not a loss which could be said to have been within the contemplation of the parties to the contract under which, the building was being repaired.”

In our opinion, the learned judge of the District Court has'misap-prehended, altogether, the scope and purpose of plaintiff’s suit. It; has nothing whatever to do with the contractual relations of the. parties growing out of the contract of insurance which was resolved into a building contract. The defendants will carry that engagement to its completion according to its tenor. If they should not, the plaintiffs would have their action for a specific performance, or commensurate damages.

But, in the meanwhile — the necessary repairs being in course of •completion — an accident is caused by the faultiness of the materials which are being used, and the carelessness and negligence of the workmen employed, whereby the structure is collapsed, the building rendered untenantable, and the lessees unable to continue its occupancy for the purposes of his lease.

In this situation plaintiffs institute suit for the recovery of the damages they have suffered by the loss of a tenant through the fault and negligence of defendant’s employees.

The theory of their case is, that defendants could have carried the repairs to completion, fulfilled their contract to their satisfaction, without disturbing their tenant in the least, provided their employees had exercised due care, and used proper materials; but having failed to do so, they are bound to reimburse their loss.

With due regard to the appreciation which our learned brother entertained of plaintiffs’ petition, we think it states a cause of action.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is now ordered and decreed that the cause be remanded to the court a qua with directions to the court a qua to reinstate the cause, and take further proceedings according to law. And it is further ordered and decreed that the costs of appeal be taxed against the defendants and appellees, and that all other cost await the final decree of the lower court.


text:
    No. 12,157.
    The White Castle Lumber and Shingle Company vs. Romanta T. Hart.
    The intervenor is entitled to the time necessary to cite the parties and put the intervention at issue; held that judgment twelve days after the filing of the intervention, confirming the principal demand, and dismissing the intervention not then at issue, denies the intervenors rights. O. P., Art. 389, et seq.; 16 La. 261; 12 An. 460; 3 An. 331

      The amount of the principal demand, is the test of the right of appeal of the intervenor, 8 La. 167; 2 An. 189; 6 An. 112.
    APPEAL from the Fourteenth Judicial District Court for the Parish oi Iberville, Talbot, J.

      McGulloh & Gahan and Louis Lozano for Plaintiff, Appellee.

      Edward N, Pugh and Paul Leche for Intervenors, Appellants.
    Submitted on briefs May 20, 1896.
    Opinion handed down June 1, 1896.
   The opinion of the court was delivered by

Miller, J.

There is a motion to dismiss the appeal of the intervenors in this cause, on the ground that the amount in controversy is less than two thousand dollars.

The plaintiffs’ suit was for a debt exceeding two thousand dollars, enforced by writs of attachment under which the defendants’ property was seized. The intervenors, creditors for the amounts separately and in aggregate less than two thousand dollars, in their petition averred there was no debt of defendant to plaintiffs, that the suit and attachments were devices by which defendant’s property was to be transferred to the prejudice of his creditors and the relief sought was the annulling of plaintiffs’ proceedings and attachment against defendant, and that he be ordered to surrender his property to his creditors.

The plaintiffs’ debt, judgment and attachment are thus controverted by the intervenor and constitute the matter in controversy. We conceive it to be settled that the amount claimed by plaintiff in the suit and not that claimed by the intervenors is the test of our jurisdiction of this appeal. Hart vs. Lodwick, 8 La. 167; Colt vs. O’Gallagher, 2 An. 189.

The motion to dismiss is therefore denied.

The intervention was filed and the usual order made that defendant be cited. Within twelve days from the date of this order the plaintiff confirmed its default against defendant and the judgment dismissedthe intervention. From that judgment the intervenors appeal, and contend the judgment practically denied the right accorded them by law. While it is true the intervenor can not retard the principal suit, it is equally true the iutervenor must be allowed the time to cite the parties and put the intervention at issue. In this case there was no answer by defendant, and when the plaintiffs took their judgment, a default was due on the intervention, but if that default had been taken the very day the delay expired the demand of the intervenors was not ripe for confirmation. The judgment thus was rendered before the intervenors, with all possible promptitude, could have tried or confirmed default on their demand. It would be idle to accord the creditor the right to intervene if the plaintiff could close the controversy, for plaintiffs’ judgment must dispose of the intervention before the intervenor can try his case. See C. P. Arts. 389 et seq., 16 La. 264, Ardry’s wife vs. Ardry; Yale vs. Hooper, 12 An. 460.

It is therefore ordered that the judgment of the lower court be avoided and reversed, the intervention reinstated and proceeded with according to law, and that appellees pay costs.