text:
    No. 12,173.
    Leon M. Carter vs. The State of Louisiana.
    The Legislature has the right to authorize suits against the State. The authority to sue covers authority to bring an action to prevent prescription of the judgment obtained under the original authority granted.
    The judgment is only the evidence of a right, and the revival has naught to do with the means of enforcing the liability. The grounds and objections at bar are within the control of the legislative department. They can not be of any avail in opposition to an application to revive a judgment.
    PPEAL from the First Judicial District Court for the Parish of Oaddo. Taylor, J.

      A. H. Leonard and D. T. Land for Plaintiff, Appellant.

      M. J. Cunningham, Attorney General (T. F. Bell of Counsel), for Defendant, Appellee.
    Argued and submitted May 31, 1897.
    Opinion handed down June 14, 1897.
    Rehearing refused June 29, 1897.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff sought to revive a judgment rendered ten years, less a few days, before his petition for the revival had been filed.

The plaintiff, at the time that suit was brought to recover a judgment upon his claim, had been authorized to sue the defendant in any court of competent jurisdiction. Act 81 of 1884.

In that suit the judgment was rendered which the plaintiff here seeks to have revived.

The Attorney General for the State interposed an exception that the suit was unauthorized by law; that the Legislature was prohibited from passing any special or local law granting to the plaintiff the right to.sue the State or changing the venue in civil cases, as it w.as, it was averred, in the nature of an exclusive right, excluded by Art. 46 of the Constitution.

Another ground of objection was that the right granted to sue the State was exhausted by the rendition of the judgment declaring the amount due.

The judge of the District Oourt sustained the exception and dismissed the case. The plaintiff appealed.

In our judgment the ground urged by the defendant, that permission can not be granted to a particular individual by special law to sue the State for the alleged reason that it is a privilege not enjoyed by all creditors of the State, is not fatal to plaintiff’s demand to revive a judgment. The special statute granted to the plaintiff the authority to sue for and obtain the recognition of his claim. It did not have the effect of adding a single right to those he claimed.

The authority granted to assert a right has never been considered in the light of a favor or advantage.

The privileges, we think, the members of the Constitutional Convention had in view, in inserting the provision against granting special right, privilege or immunity to any association or individual, are those which would be in derogation of common right; the idea was that no one should have preference or enjojr immunity or special right, granted, arbitrarily and without reference to public interest or the public good.

The purpose, as we understand, was to give security of equality before the law, and to guard against granting privileges to the possibly favored few.

The authority to sue the State in its own courts does not in the least impair the desired equality. The judgment only recognized the claim and fixed the amount due by the State. For this purpose the Legislature has a right to authorize suits against the State.

We pass to the second objection of the defendant — that relating to the domicile of the defendant, which was not in the parish of Caddo; and the consequent want of jurisdiction of the court, in which the judgment here sought to be revived was rendered.

Granted, for the determination of this case, that suits brought against an officer should be brought against him at his official domicile, yet in order that an objection on that ground may be of any avail, it can not be urged in defence of the suit brought to revive the judgment. The defence upon that ground is necessarily confined to the original suit in which the judgment was rendered. On an application to revive a judgment questions of jurisdiction ratione persones can not arise.

Moreover, the language of the statute was broad enough to enable the court to entertain jurisdiction. The words of the statute, in any court of competent jurisdiction,” included the court in which .the judgment was rendered as a court of competent jurisdiction ratione materiee, at any rate.

At any rate, if there was ground for objection it was because of the want of jurisdiction ratione personee and not want of jurisdiction ratione materiee, it is now too late to consider the former.

The defeñce on an application to revive a judgment is limited to absolute nullity of the original judgment, such as the want of citation, the want of jurisdiction ratione materiee and other similar original defects.'

The act granting the authority to sue, however general in terms, was not invalid as related to jurisdiction of the court. We have not found that it clashed with the organic law.

This brings us to the objection that there was no longer an existing authority to sue the State; that the authority to sue the State was exhausted from the time that the original judgment was rendered.

The proposition, upon this particular point, is correct if we assume that a suit to revive is a separate and independent suit from the suit in which the original judgment was rendered.

This court has had occasion to hold that the proceedings to revive a judgment is not a separate suit, but part of the original action. Scherrer vs. Caneza, Sheriff, 33 An. 317.

Under the light of this decision the right to revive being a part of the proceedings, in matter of the suit and the original judgment, it must be considered as included within the authority given to sue. The State has consented to be sued for the purpose of the adjudication. Although the power of the court ended at the date the judgment was .signed, it did not put an end to all authority in matter of preventing prescription of the judgment debt. It is part of the adjudication, just as the plaintiff would have the right to appear and! sustain a defence if his judgment were attacked on some ground of nullity. The judgment ordinarily determines the amount of the indebtedness, but it has naught to do with the means of enforcing the liability, save that it serves as the evidence of the right An application, therefore, relating entirely to the judgment may be granted as a part of the original suit without trenching upon questions relating to the exigibility of the judgment. Black on Judgments, par. 1.

In our view, the authority to sue covers the authority to prosecute the suit to a judgment and the authority to keep the judgment in force. The authority to revive a judgment was treated as ancillary to the original proceedings in the decision to which we have before referred, and such was, we believe, the legislative intention in adopting the status. C. C. 3547.

The suit without reference to defendant’s residence must be brought in the court in which the original judgment was rendered;, the issues which may be raised are well defined and are hot suggestive of an independent and original suit.

The question whether any useful purpose will be served by the judgment applied for, arises. We must say that its importance and usefulness are not apparent.

The State is at liberty to pay the judgment or not to pay, as it may determine. The new life given to the judgment adds nothing to its-exigibility, and nothing to its force as a judgment. The State may order its payment or decline to make provision for its payment,, without regard to the possibility vel non of urging the plea of prescription. The question is so entirely within the control of the State that we do not conceive that anything is to be gained by a judgment reviving the original judgment.

At the same time it is, we think, a right of the plaintiff to have it revived, if he chooses.

The opposition to the claim and the charges made can not be considered on an application to revive the judgment. The whole matter is within the control of another department of the government.

It is therefore ordered and adjudged that the judgment appealed from is avoided, annulled and reversed; the case is remanded to the District Court to be reinstated on the docket of that court and the issues tried in accordance with the views before expressed,

Nicholls, C. J., absent; ill.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 12,404.
    Succession of Joseph Webre.

      Community Assets. — The profits of the industry of the spouses and the fruits of their separate estates fall into the community.
    The revenues of the separate estate of the deceased partner in community prior to the third community, of which he was the head and master, were not Inrge enough to justify crediting to the account of the separate estate a larger amount than that credited.
    The books kept by the “head and master” prior to his becoming «‘head and master” of the community are not of themselves of sufficient weight to sustain “debits” against the community of amounts alkged to have been brought into the community by the late head of the community.
    The inventories and other evidence of record amply prove the correctness of the credits allowed to the separate estate.
    The revenues of the community, during the ten years of its existence, are not out of all proportion with the expenses of the community and the purchases made for its account. Besides, where there is dispute about an amount as to whether it should be placed to the credit of the community or to the credit of the separate estate, the principle of law, all “ effects which the spouses possess at the dissolution of the marriage are presumed common,” until the contrary appears, applies, and the community is owner unless it is evident that an error has been committed.
    The community is entitled to credit for improvements made with community funds on the separate estate of the husband.
    The survivor is owner of half of all the community and entitled to the usufruct of her minor’s portion.
    The fee of attorney and all costs of administration of the succession, and consequent settlement of the community, are due by thesuccession and by the community in proportion to the interest of each.
    A PPEAL from the Twenty-first Judicial District Court for the Parish of St. John the Baptist. .Rost, J.

      James Legendre for Administrator, Appellant.

      K Evariste Moise for Heirs, Opponents, Appellants.

      Robert G. Dugué for the Widow, Appellant.
    Argued and submitted March 3, 1897.
    Opinion handed down May 10, 1897.
    Rehearing refused June 30, 1897.
   The opinion of the court was delivered by

Breaux, J.

All the parties appealed from a judgment homolo-gating an account of administration of the succession of the late Joseph Webre. It was offered by the administrator as a final account, and as such it was filed in the lower court.

The surviving widow in community, Mrs. Aloysia Reulet, opposed the homologation on different grounds, set forth in her opposition.

An opposition was filed by Louis S., only issue of the first marriage of Joseph Webre, and by Edward, John and Gabriel, issue of his second marriage.

Elizabeth, a minor daughter of Aloysia Reulet, is the only issue of the third marriage of Joseph Webre.

All the items in the account are opposed.

The great difference between the widow in community on the one hand and the heirs of age of Joseph Webre on the other is, relatively speaking, in regard to the value of the succession, and the value of the community.

The contention on the part of the heirs is that the judgment is erroneous, in that it fixed at too small an amount the assets of the succession.

The widow, per contra, opposes on the ground that the net amount of the community is much larger than decreed.

The heirs seek to support their contention by reference to the evidence, it is asserted, of what the community has made during its existence, from December, 1885, the date of his marriage with the present opponent, Mrs. Reulet, to the date of his death, in 1895, which was much less, they say, than allowed by the judgment from which they appealed. To sustain the position that the separate estate of the decedent, and not the community, should be credited with the amounts they mentioned, they endeavored to prove that the inventory of the second community, which was dissolved by the death of the second wife of Joseph Webre, does not represent the total value of their father’s succession, at the date it was taken, but only the value of the community which had been dissolved a year anterior to the taking of the inventory; that their father did not include in the inventory his own personal acquisitions made between the date the community was dissolved and the date the inventory was. taken, listed and appraised; that he only disclosed the value of the community property at the date of his second wife’s death. More than fifteen thousand dollars, it is charged, were acquired between these two dates, for which they have not received credit claimed.

In support of their position they also aver that between the dates of his first wife’s death and his second marriage, their father acquired personal property and cash worth four thousand dollars, and had real estate worth five thousand dollars, which formed part of his separate estate.

In round numbers, in their oppositions, setting forth different items, they claim that he was worth sixty thousand dollars when he married the second time, and that their father was worth more than that sum when the third community was dissolved. To sustain this averment the evidence should prove that the sum of fifteen thousand and nine thousand dollars went into the community, although they were not carried into the inventory made a short time prior to the last marriage.

With reference to the last community for various alleged reasons, the heirs, representing the separate estate, urged that it not only lost money, but that it was considerably in debt to the separate estate of the husband, their father.

The insistence of the widow, on the other hand, who claims for the third community, in opposition, is, that payments were made during the community, with community funds; of debts contracted before the marriage, to the credit of which the community is entitled.

She also contended in the District Court that the law charges, administrator’s commission, funeral expenses and the like, contracted after the death of her late husband, are not chargeable to the community. This was sustained by the judgment and the community was not charged with costs' and attorney’s fees.

She, in addition, complained of an overcharge of thirty-six hundred dollars, proceeds of the sale, during the community, of separate property of the decedent, which was not used for the benefit of the community. This objection to the account was not sustained by the judgment. The community remained charged with the amount.

She charged that the administrator has received, but has omitted to account for, the share accruing to the separate estate of the decedent out of the profits of the crop of 1895, amounting to two thousand one hundred dollars and eighty-seven cents. We have not found that the separate estate was credited with this sum.

There is a community debt, not mentioned on the account, which was admitted since the judgment was rendered in the lower court, and which all agree should be charged.

After recasting the account filed, the judge of the District Court made the following final distribution:

Half the community to the survivor.$19,865 26
Her share paraphernal funds. 2,000 00— $21,865 26
Other half of community to succession. 19,065 26
Separate property. 46,811 22— 66,676 48
Add community debts. 22,496 46
Less amount allowed above. 2,000 00— 20,496 46
$109,088 20

Making the share of the widow in community twenty-one thousand eight hundred and sixty-five dollars and twenty-six cents, and the shares of the five heirs in the succession fifty-nine thousand two hundred and seventy-six dollars and forty-eight cents, to be divided into five equal parts; Mrs. Webre reserving her right of usufruct on the share of her minor child Elizabeth.

The Separate Estate of the Decedent vs. The Third Community.

No one disputes the proposition of law that property found in the husband’s possession at his death presumably belongs to the community. To meet this presumption the heirs urged that the evidence showed what the community has made duringthe ten years, less few days of its existence, and what it has expended. In our view an extreme position is taken by the heirs in opposition to the claims of the third community; that it has no profits at all; in other words, that the whole amount carried as community profits belongs to the separate estate.

This contention, we think, is not sustained by the facts as we appreciate them.

Property not in Existence at the Dissolution of the Community should not he charged.

Before taking up that question we will state with reference to the opposition to the items placed upon the account, as assets of the community and items placed upon it as liabilities of the community, which were not in esse at the date of its dissolution, that as thereon placed, both were, in our judgment, properly excluded by the judgment. The community consists of profits — i. e., the fruits of the separate property of the spouses fall into the community, also the fruits of their industry. Property disposed of at the date of the dissolution of the community should not directly figure as an it?m of debt or credit, although it may enter into an account as an item and be considered in fixing balances of profits or balances of losses of the community.

This was the ruling of the judge a quo who properly, in our view, .amended the account by striking therefrom items relating to property once owned in community, but which no longer belonged to ithe community.

We return to the principal question arising from claims set up by ■the separate estate of the decedent represented by the children of .two preceding marriages against the widow and third community.

Expenses of the Family and Interest Received.

The first item of expenses, which attracted our attention, claimed •by the heirs is an item of twenty-five thousand dollars, living expenses for the ten years of the community.

We do not think that this item is sustained by the evidence for an amount as large.

The estimate of a witness is the only evidence sustaining a claim for so large an amount. The amount stated in the memoranda of the decedent was considerably less. He resided on his plantation, and managed with frugality and was prudent in expenditures. He had gardens, poultry, cows and other contributing sources of support on the well managed farm.

Instead of allowing this amount as a charge againt the community, we conclude, as the District Judge must have concluded, that the interest on the bonds and notes which were held by the late Mr. Webre about paid the living expenses of his family and his own.

This large amount is sufficient to account, to great extent, for the difference between the two, the separate estate and the community.

If it was, as we think, more than compensated by the interest which the head of the community must have collected, of which no account was rendered, it makes a considerable difference in the calculations of the heirs representing the separate estate.

The other amounts placed to the credit of the community, as community profits, are, in our opinion, amply sustained by the evidence and the presumption of law relative to property acquired during the community.

We note the contention of the heirs that another amount, admitted since the lower court has fixed the value of the succession and of the • community, is still to be deducted, and that it increases, it is contended, the difficulty (rather rendering it impossible) of determining that the community had any assets at all.

We will return to this subject later.

Separate Estate.

After having examined into the financial condition of the community, we passed to the separate estate of the late Joseph Webre and found that the difficulty of tracing the items of cash claimed by the heirs, as to the separate estate, was as great and even greater than it was to trace up the items of cash with which the property of the last community was bought.

Books Kept by the Head of the Community.

We deem it in place, at this time, to pass upon the objection raised by the survivor in community to the admissibility of books alleged to have been kept by the late husband prior to and during their marriage, on the ground that she was not aware that such books had been kept and that she was as to them a third person.

Her husband had interest in two or more partnerships, whose business transactions were recorded in their books. Many of the entries were those of these partnerships. It was evidently the intention to keep correct statement. But they are not as complete a statement of transactions as they might have been. The memoranda were doubtless important in matter of the daily business of the late Mr. Webre, but are not of any very high value in after years, not being a complete record. Many of the items were proven by other testimony.

We, therefore, will treat these books or memoranda as the merest commencement of proof.

We have made this statement about the books because there is a decided inclination on the part of the heirs to have amounts charged as entered in the books, even where there is no corroborating testimony.

Profits of Separate Estate.

Without reference to the books, it appears to us that the means of the separate estate were large enough to produce the amount which is put down as its assets in the judgment of the District Court. It is fair to presume,.with the same management during a decade preceding that of the third community, about the same profits were made. These profits are not all carried on the inventory. Two crops were made after the date of the inventory and just preceding the last marriage which could not figure as part of the separate estate, for the reason that they were made after the date of the inventory. Other transactions during the same time were necessarily not included for the same reason.

After having considered the amount of capital of each, the community and of the separate estate as shown by the testimony of witnesses entirely corroborating certain entries in the books, the inventories and other evidence, we concluded not to disturb, in this particular, the judgment of the learned judge of the District Court.

In reaching this conclusion, we have not overlooked the contention of the heirs that the separate estate was much larger than appeared by the inventory for the reason that it included only the property in which the second wife had an interest, and not the separate property of Joseph Webre.

The administrator, who is an heir, testified that it was complete as to the movable property, and, possibly, did not make a full showing of the immovable property. This is supported, we think, by the proces verbal of inventory. Be that as it may, while we agree that all credits to the separate estate were properly given, we would not feel justified in increasing the amount of credit of the separate estate.

The character of the late Joseph Webre, as shown at the bar and by the evidence, has great weight in reaching the conclusion that the inventory made at his instance a short time prior to his last marriage is correct; also, that the settlement made by him with the children of his second wife, after her death, was a complete, full and fair settlement, and went far toward representing the condition of his affairs at the time. We believe that he paid this separate indebtedness with separate funds. One of our reasons for so concluding is, for instance, that the Torres notes, bought after his third marriage, with separate funds, we think, which were afterward transferred to these children in part payment of their claim, were not mentioned as notes belonging to the community, but the notes of the community were all mentioned. In our opinion, these amounts could not be credited to the community, as claimed by the survivor in the community.

Crops for which Account is Claimed.

Counsel for Mrs. Webre directs our attention to the fact that the administrator testified that there are other profits on the crops made by the separate property, which the account failed to explain. In the account to be filed the administrator will have to render an account and show what disposition was made of these profits.

The same is true of the crop of 1896; no account could be rendered of the crop of that year, as it had not been sold when the account was filed. The right is reserved to all parties concerned to require an accounting for the crops of that year.

A Claim Allowed by Agreement of All Concerned.

There was a community debt, not mentioned in the account, to which the attention of the District Judge was not called; it was only after the hearing of the case the attorneys agreed as to the items and the amount. It was recognized as due, and will be mentioned in the account to be rendered. The amount is twelve thousand three hundred and sixteen dollars and eighteen cents.

In view of the fact that there are assets yet remaining which will be added to the active mass of the community, we think that this indebtedness, after it will have been entirely paid, will leave an amount equal to that heretofore allowed to the credit of the community.

Presumably the Amount was Applied to the Benefit of the Community.

The widow Webre complains that the charge of thirty-six hundred ‘dollars, price of separate property of the husband sold during the community, and which, she says, was charged to the community without proof that it was invested in matter of the community.

The community would not, without this amount, have made the purchases it made for its account. The funds, calculations and estimates based upon the evidence would have been exhausted. In other words, this indebtedness of the community is consistent with purchases for its account and with its accumulation of property. The community could not have bought property and paid expenses without that amount.

.Betterment of Separate Estate.

There were improvements placed on real estate of the husband during the community with the value of which it was properly credited, we think. Keeping account of the accumulations and of the management, justifies the conclusion that there were earnings ■enough made by the community out of which to pay for these improvements. The result proves, in our judgment, that they were due to the common labor or industry. R. O. 0. 2408.

Costs of Settling Estate and Community.

The heirs object to the item of thé account, five thousand two ■hundred dollars, which is chiefly made up of costs, lawyers’ fees, court costs, administrator’s fee for settling the succession and the community — both were equally benefited. There is no reason to burden the separate estate alone with this espense. The adminis"trator was equally responsible to both the community and the sepa - rate estate, and in effecting sales, defending actions and in all the ■proceedings he represented both. The mass from which the portion •of each is taken should be held for the expense, and in that way the h' irs will pay ia proportion to their interest and the survivor in •community in proportion to heis.

Rights of Survivor in Community.

And lastly it only remains for us to say that the opponent, Mrs. "Webre, is the owner of half of all the community property, to the possession of which she is entitled, also to the usufruct of the share ■coming to her minor daughter.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by charging the community and the ■separate estate, in proportion to the interest of each, with the sum •of five thousand and two hundred dollars, less the sum of forty-nine dollars, and that an account be given by the administrator of the ■sum of two thousand one hundred dollars and eighty-seven cents; also that an account be given of the profits of the crop of 1896 when ascertained, and that, in accordance with an agreement, the community be charged with the sum of twelve thousand three hundred ■and sixteen dollars and eighteen cents.

With these amendments, it is decreed that the judgment is .affirmed at appellees’ costs.

Me. Justice BlaNchaed takes no part in this decision, not having ■been a member of the court when the case was argued.

Nicholls, C. J., absent; ill.


text:
    No. 12,585.
    State ex rel. Patrick Paine vs. Judge W. N. Potts, Fifth District Court.
    The trial judge did not err in refusing to grant the application £or an inquisition oí lunacy involving, if granted, a consideration of question of insanity of a date prior to the trial by the jury of the plea of insanity, and not involving a question of insanity arising after conviction.
    PPLIOATION for Writ of Mandamus.

      E. T. Lamkin and Frank Vaughn for Relator.
    Submitted on briefs September 6, 1897.
    Opinion handed down September 10, 1897.
   ON \ PPLIOATION FOR A WRIT OF MANDAMUS.

The opinion of the court was delivered by

Breaux, J.

The proceedings are by mandamus (o compel the trial judge to cause the defendant to be brought before him to be examined touching his sanity or insanity; to hear witnesses with the view of obtaining a judgment of interdiction.

The history of the case shows that on the trial before the District Court evidence was introduced before the jury to sustain defendant’s-plea of insanity; that the District Judge charged the jury fully upon the law of insanity as applicable to the case.

The trial judge avers in his return to the rule nisi, issued by this court on the application for a writ- of mandamus, that during the trial he not only listened to the evidence up,on the subject of the defendant’s insanity, but watched carefully for any indication of insanity during the trial, and that he was satisfied that the accused was sane and he refused to set aside the verdict and grant a new trial.

The ruling and sentence of the District Court were brought up for review on appeal. Our decision affirmed its correctness in June, 1897. Ante p. 1092.

In August following, the attorneys for the defendant petitioned the District Court for his interdiction and alleged the insanity of defendant.

The trial judge, in support of his refusal to grant the prayer of the petition, allegedinhis return that “ the verdict of the jury supported as it is by the judgment of the District and Supreme Courts is res judicata; that it conclusively establishes the fact that the relator, Patrick Paine, at the time he killed his wife, was sane and responsible for that act.

“As stated in my judgment refusing to take further action in this matter, and as your Honors will see by reference to the application for the commission and investigation in the matter, it is not alleged nor pretended that the insanity complained of has arisen since the trial of this case.”

Here counsel for the defendant seek to reopen issues which were considered and passed upon in the trial of the case. We agree with the District Judge; those issues to the date of the conviction are now closed.

In the application for the interdiction the insanity of the defendant is alleged without specially averring whether it is based upon conduct and utterances of the defendant since the trial or prior to the trial.

It is well settled if one who has committed a capital offence becomes non compos mentis after conviction, he shall not be executed.

But the burden was upon the defence- to specially allege that the insanity had developed and become evident since the trial.

In State vs. Patton, 12 An. 288, this court said: Nor was there any error in refusing to allow the tardy motion for an inquisition of lunacy, it appearing that there was no pretence that the prisoner had become insane since the trial, and the question of his sanity at that time having been fully considered and passed upon as a question of fact, the verdict of the jury is conclusive upon us as to all matters of fact embraced by it.”

All allegations setting forth defendant’s mental condition, having reference to a date prior to conviction, do not present an issue for decision. The allegations made do not, in our view, refer to acts of insanity since the conviction.

Nothing of the conduct, acts or utterances of the defendant indicating insanity are averred.

Moreover, no attempt was made to obtain the report of a physician or to present any other evidence of insanity save an affidavit required by statute, which is a part of the pleadings and is unquestionably true and correct in the opinion of counsel, but not on its face sufficient in law to arrest the effect of a verdict and sentence, or to justify an investigation such as that sought. It is not with special reference to mental condition since the conviction.

In State ex rel. Chandler, 45 An. 700, we held that the judge was authorized under Sec. 1768, invoked by the defendant upon the report of physicians, to direct an investigation. (Italics ours.)

In State ex rel. Armstrong vs. Judge, 48 An. 504, the respondent made an application for a respite. He moved for a commission of experts to examine into his mental condition. The proceedings had, prior to the appointment, the effect of giving notice of the necessity of appointing an inquisition de lunático inquirendo to examine into the mental condition of the accused.

Without a showing before us, and without suggestion of one insane act since the trial, we are compelled to decline the relief for which application is made.

Whenever knowledge is brought to the attention of the trial judge that insanity has supervened since the conviction of the accused, an inquiry into his mental condition should be made instanter.

It is therefore ordered and decreed that the provisional order rendered be set aside; relator’s demand is not granted, and his application is dismissed.

Nicholls, C., J. and Miller, J., absent.


text:
    No. 12,508.
    State of Louisiana vs. David J. Reid.
    The State had not tiled the record of appeal within the time provided by law.
    The failure to file the record was fatal to the appeal. 36 An. 863; 38 An. 83; 43 An. 610.
    APPEAL from the Twelfth Judicial District Court for the Parish of Calcasieu. Bead, J.

      M. J. Cunningham, Attorney General, for Plaintiff, Appellant.

      Schwing & Moore and Clegg & Quintero for Defendant, Appellee.
    Submitted on briefs May 15, 1897.
    Opinion handed down May 31, 1897.
   The opinion of the court was delivered by

Breaux, J.

This' case is before us on the appeal of the District Attorney from a judgment setting aside the indictment.

The defendant moved to dismiss the appeal on the ground that the case was not made returnable to this court within ten days.

The appeal was applied for and granted on the third day of March, 1897, and was made returnable according to law.

The court adjourned its sittings sine die on the day the appeal was granted.

The transcript was filed in this court on the 28th day of April, 1897.

The statute providing for appeals in criminal cases; fixing the return day and limiting time within which to grant appeals is quite clear. Act 30 of 1878. /

Unless an extension of time is obtained and good reason is shown for not having filed the transcript in time, the appeal must be dismissed it has been adjudged.

It was decided that defendant, in case of State vs. Butler, 35 An. 392, had virtually abandoned his appeal by not having offered to file the transcript in time.

The ruling was subsequently affirmed in State vs. Joseph, 38 An. 33, and reaffirmed in case of State of Louisiana vs. Stevens, 43 An. 510.

Under the statute and the decisions, the delay was fatal to the appeal.

Dismissal of the appeal is the only alternative.

It is therefore ordered, adjudged and decreed that the appeal in. this case is dismissed.


author: Nicholls, C. J.

text:
    No. 12,667.
    State ex rel. Louis J. Huber vs. F. D. King, Judge, et als.
    An order for alimony in a divorce suit is nothing more than the judicial sanction and enforcement (under abnormal conditions) through the judiciary of the duty by the husband to support his wife. 0. 0., Arts. 119-120.
    A right to receive or demand support (or money in order to enforce support) is something other and different than a right to receive and be paid a technical legal debt.

      There are many cases when the right to claim and receive money is not derived from, nor based upon the relation of debtor and creditor between the parties. Judgments in snob cases recognizing the right and ordering its enforcement are not necessarily judgments for debt.
    The mere fact that the judicially recognized right may be enforced through fieri facias is not determinative of its legal character. It is by no means unusual for the same right to be enforceable by concurrent or cumulative or consecutive remedies.
    The judge in a proper case has the power to punish by imprisonment a husband who had been ordered to pay alimony to his wife and who has continuously refused to obey its order while able tc do so.
    QN APPLICATION for Writs of Habeas Corpus and Certiorari.

      Linville & Untereiner for Relator.

      J. H. Ferguson for Respondents.
    Submitted on briefs November 22, 1897.
    Opinion handed down November 23, 1897.
    In the petition filed, in this case on behalf of the relator, it is alleged that the latter is illegally and unwarrantably imprisoned and deprived of his liberty by the civil sheriff of the parish of Orleans and the keeper of the parish prison of said parish, under and by virtue of a pretended commitment issued in the matter entitled Emily Weyman vs. Louis J. Huber (her husband) for divorce (No. 54,033 of the docket of the Civil District Court, Division B.), issued by Hon. F. D. King judge of the said court.
    That a writ of -fieri faeias issued in the above cause after judgment rendered against relator for the sum of seventy-five dollars per month alimony payable in advance. That relator was ordered to show cause why he should not be punished for contempt of the authority of said court; said pretended contempt being relator’s inability to comply with the judgment of said court and paying to his wife the said seventy-five dollars per month. That on the day fixed for the trial of said pretended rule for contempt, relator made due return thereto, excepting to said contempt proceedings on the grounds that there was no law authorizing a married woman to institute proceedings against her husband — that the rule for contempt disclosed no legal cause of action. That after the exceptions were overruled, relator answered substantially that his said wife having left the domicile assigned to her by the court without obtaining the court’s permission, relator could not be compelled to pay the alimony. That relator had paid his wife the sum of four hundred dollars which should have been imputed to the payment of the alimony. That relator was unable to pay the alimony allowed by the court, he having no other property that he could dispose of or which yielded a revenue except his salary, which in itself was insufficient to pay said alimony, all of which was fully and conclusively proved in open court, there being no other witnesses except those for the defence sworn. That thereupon relator was illegally and unwarrantably adjudged to be in contempt and forthwith committed to prison by Hon. F. D. King, judge of said court, and thereupon relator notified the court that he would apply to the Supreme Oourt for relief through its supervisory process.
    That there was no appeal from said order committing him to prison, and his only means to have said judgment reviewed by the Supreme Oourt is by the writ of certiorari, which is necessary in the premises. That said proceedings for contempt and the order committing him to prison are absolutely null and void, and relator is entitled to have it set aside, and that he be set at liberty, and that a writ of habeas corpus is necessary in the premises for the following reasons, to-wit:
    1. That the offence, if such it might be called, did not constitute a contempt of the authority of the Honorable Division B of the Civil District Court.
    2. That the law absolutely forbids a wife to bring any suit or proceeding against her husband except actions for the separation of property, divorce and for the protection of her paraphernal property — that the proceeding for contempt herein taken in said suit being forbidden by a positive law is therefore absolutely null and void.
    3. That contempt proceedings can not be invoked for the purpose of enforcing or executing ex parte orders or final judgments.
    4. That there were ways of executing her judgment other than the proceedings taken for contempt.
    5. That relator being financially unable to comply with the judgment for alimony at the time the writ was issued, and not having since been able to pay and satisfy said judgment, imprisonment under such circumstances is imprisonment for debt, which has been abolished in this State long since.
    6. That the law specially exempts a husband from payment of alimony to a wife unless she proves that she has constantly resided in the domicile assigned to her by the court.
    7. That there is no law which authorizes contempt proceedings in case of a party litigant failing to satisfy a judgment rendered against him.
    In view of the premises, relator prayed that a writ of certiorari issue directed to the Hon. F. D. King, judge of the Civil District Court, commanding him to send to the Supreme Oourt the proceedings in the matters aforesaid in order that their validity might be inquired into, and to proceed no further in said cause until judgment shall have been pronounced on the regularity and validity of said proceedings; that a writ of habeas corpus issue to the civil sheriff of the parish of Orleans commanding him to produce relator in open court on the hearing; that relator have all other and necessary orders in the premises, and after due proceedings had, the order committing relator to prison for contempt of court be declared absolutely null and void and relator be released from imprisonment, and for all general and special relief such as the nature of the case requires and the law permits.
    On the day fixed for a hearing the civil sheriff produced the body of the relator in court and returned that he held him under the order of commitment referred to in relator’s application herein.
    The records ordered were sent to the court as directed. The District Judge answered or returned:

      First — That proceedings were instituted in said court by said Mr3. Emily Weyman for separation from bed and board from said Louis J. Huber, which suit is now pending. That a rule was taken by plaintiff in said suit for alimony, and said rule after hearing evidence as to defendant’s ability to pay the amount specified in said rule and proof that the wife had constantly resided in the house appointed by the court was made absolute, and said Huber was ordered to .pay his wife and her three minor children seventy-five dollars per month, beginning from the filing of said suit, to-wit: July 15, 1897. That subsequently, November 15, a rule was taken in said case on said Huber to show cause why he should not be punished for contempt on the ground that he had refused to obey the said order for the payment of money. Said rule was made absolute after hearing evidence and argument of counsel, and accordingly said Huber was committed to the parish prison for ten days for contempt of the authority of the court.

      Second — It was clearly established on the trial of said rule for contempt that Huber had not paid any portion of the alimony allowed by the court although three instalments were then due. That a written demand had been made therefor by counsel and a writ of fieri facias had issued and been returned no property found. That said Huber had received as salary and otherwise nearly five hundred dollars in cash since the order for the payment of alimony was rendered, and had refused to pay said alimony and had persistently evaded the powers of court. That had it been shown that defendant was unable to pay the amount allowed but could pay a smaller amount, the court would have modified its said order accordingly; or if defendant had established that he was without means, the court would certainly have not committed him for contempt.

      Third — That respondent in committing said Huber for contempt exercised the power and passed judgment in the manner and form prescribed by law, and within the limits fixed by law.

      Fourth — That under Art. 148 of the Oivil Code the husband can be compelled to pay alimony.

      Fifth — That imprisonment for a fixed period for contempt for refusal to pay alimony allowed by a court of competent jurisdiction is not imprisonment for debt.
   The opinion of the court was delivered by

Nicholls, C. J.

The pleadings raise no issue as to the proceedings themselves as taken in the lower court other than that the rule which terminated in the order of imprisonment, of which the relator complains, was issued at the instance of the wife, and it is contended that a wife is prohibited from bringing suit against her husband, except in certain specially enumerated cases, of which this proceeding is not one. The rule for contempt is not a suit of the wife against her husband; it is action taken by the court itself upon having certain matters brought to its notice as involving a violation of its authority. It is immaterial that this information should have come from the wife — it is enough that it is derived from any one legally interested in the subject matter. • Besides the rule for contempt was a mere incident of a proceeding which was itself an incidental proceeding in a suit which the wife was officially authorized to institute.

Relator desires us to examine into the facts, of this particular case, with the view of ascertaining and announcing that the conclusions reached in respect to the same by the District Judge were erroneous— to declare that, in point of fact, relator’s failure to pay over the alimony ordered tobe paid to his wife arose not from wilful disregard and contempt of the court’s authority, but because he was 'by reason of the financial condition of his private affairs unable to comply with the order made upon him. The only question before us on this application for certiorari, outside of that which we have just passed upon, involves the power ” of the District Judge to have made the order he did. <•

We will consider this matter under the application for a writ of certiorari; as habeas corpus, as a substantive writ, can not be made available in this case. Art. 89 of the Oonstitution.

The two grounds upon which relator relies are: First, that the wife being entitled to other remedies to enforce payment of the alimony decreed than that sought through the rule for contempt (as, for instance, by writ of fieri facias) is barred from resorting to this special extraordinary method for relief; and, second, that the “ order ” in question, for the payment of alimony, evidenced a debt in favor of Ms wife, and he is (now under the court’s commitment) illegaliy imprisoned as for imprisonment for debt, which imprisonment for debt was abolished by Act No. 117 of 1840.

Articles 119 and 120 of the Civil Code declare “ that the husband and wife owe to each other mutual fidelity, support and assistance * * * the husband is obliged to furnish (the wife) with whatever is required for the convenience of life in proportion to his means and condition.” . *

The obligations thus declared by the lawmaker are in no sense of the words “ debts ” due by the spouses — they are simply recognized legal duties, which it is of paramount' importance to the welfare of society should be not only recognized but enforced by the courts. An order for alimony in a divorce suit is nothing more than the judicial sanction and enforcement (under abnormal conditions) through the judiciary of the duty by the husband to support the wife.

A right to receive or demand support (or money in order to afford support) is something other and different than a right to receive and be paid a technical legal debt. There are many cases where the right to claim and receive money is not derived from nor based upon the relation of creditor and debtor between the parties. Judgment in such cases recognizing the right and ordering its enforcement are not necessarily judgments for debt.

The mere fact that the judicially recognized right may be enforced through fieri facias.is not determinative of its legal character. It is by no means unusual for the same right to be enforceable by concurrent or cumulative or consecutive remedies. It sometimes happens that resort to one method of enforcement is made an essential prerequisite to obtaining subsequent relief through a different mode and manner. The writ of fieri facias, with the sheriff’s return thereon of “no property found,” as is well known, sometimes furnishes merely the “ evidence ” upon which courts have to base their right to proceed in certain statutory proceedings. The writ with that return upon it is usually (though not necessarily) made use of as evidence of insolvency. A party, however, may by various methods place his property beyond the reach of seizure by the sheriff, when in point of fact he may have ample means, and under such circumstances the writ with its return may serve as links in a chain of evidence by which to establish default, contumacy and contempt of court. They were obviously, as shown by the judge’s return, made use of in this case for that purpose.

The question which we have been called on to discuss, though a new one in Louisiana, has been frequently made the occasion of examination and decision in other States. In Ex parte Perkins (18 California, 64), the Supreme Court of California, referring to a contention such as that raised here, said: “This is not a debt within the meaning of the article forbidding imprisonment for debt. The husband is bound to support the wife, yet this duty is an imperfect obligation which is not technically a debt. He does not owe her any specific amount of money, but he owes a duty to her which may be. enforced by the order of a court compelling him to pay her money. So alimony temporary or permanent may be decreed by the court, and this may be done not in one gross sum, or at One time, but in different sums and at different times at the discretion of the court. Nor does this power exhaust itself merely by a mere provision for the actual necessary support of the wife during the' litigation. But it is equally within the power of the court to decree the payment of the legal expenses of the suit. Legal expenses may well be included in this provision, and this includes the fees to attorneys. This is not a debt, as has been decided by the Supreme Court of Connecticut in Lyon vs. Lyon, 21 Conn. 185.”

Bishop on Marriage and Divorce, paragraph 428, page 370, Sixth Edition, referring to this matter says: “ Though the husband’s liability to pay money is distinctly recognized in the law and is enforceable against him and his property, it is not a debt.’’ ” In support of this proposition the author cites Pain vs. Pain, 80 N. C. 322; Menzie vs. Anderson, 65 Ind. 239-though to the contrary Chase vs. Chase, 105 Mass. 385.

In Carlton vs. Carlton, 44 Ga. 219, the court refers to the order of a court for alimony as not being a final judgment, but one which is at any time open to modification and re-examination. In dealing with the particular subject of a violation of the order furnishing the basis for contempt, with reference to imprisonment for a debt, it said: “The imprisonment must be clearly for the process of the court, and be of one who is able and unwilling to obey the order of the court. It must be remembered also that the imprisonment by a judge for contempt is always conditional, and is at his discretion, and may, at any time, by the same discretion be discharged. And very clearly it ought never to be resorted to except as a final process founded on the unwillingness of the party to obey. The moment it appears that there is inability it would clearly be the duty of the court to discharge the party, since it is only the contempt for the disobedience upon which the power rests.”

In Daniels vs. Lindly, 44 Iowa, 569, the court said: “ The claim of the wife for alimony is not in the nature of a debt. She is not the creditor of the husband — it is an equitable allowance made to her out of her husband’s estate.”

In Pain vs. Pain, 80 N. C. 325, the court said: “The allowance is not a debt within the meaning of the Constitution as contended before us for which imprisonment is not permitted. It is an order of a competent court only to be enforced as are other judicial commands, when necessary by process of attachment against the person. The power to award the process is inherent in the court — essential to the exercise of its jurisdiction and the maintenance of its authority. Without the ability to compel obedience to its mandates, whether the order be to surrender writings in possession of a party to execute deeds of conveyance to pay money as in the present case or to perform any other act the court is competent to require to be done, many of its most important functions would be paralyzed. The wilful disobedience of a lawful order is itself criminal.” We have reached the conclusion after a careful consideration of the question before us that the District Judge was in the premises acting within his jurisdiction and possessed the power” in a proper case to punish by imprisonment a husband who had been ordered by it to pay alimony to his wife and who had continuously refused to obey its order, while able to do so. The imprisonment may in a given case lead up indirectly as its result to the payment of the money, but the imprisonment itself is directed as a punishment against a contempt of the court ordering it.

For the reasons herein assigned, it is ordered, adjudged and decreed that the orders heretofore rendered in this case be and the same are hereby set aside, and the application of the relator be and the same is hereby refused and denied.


author: Wateins, J., Miller, J.

text:
    No. 12,429.
    Elisa A. Clifford, Widow of Martin Druhan, vs. Louis T. Michiner et als., Trustees Land Trust of Indianapolis, Indiana.
    An assessment oí property for taxes made in the assessment year of the owner’s death, and in fieri when he dies, will bind his heir ancl support a tax sale under the Act No. 82 of 1884. Constitutional provision as to delinquent taxpayers, act of 1884, Sec. 5; 40 An. 142; 41 An. 765; Act No. 42 of 1871, Secs. 23, 39, 45, 46, 48; Act No. 17 of 1875.
    A PPEAL from the Civil District Court for theParish of Orleans. Rightor, J.

      R. O. Cobb for Plaintiff, Appellant.

      E. Howard McCaleb for Defendants, Appellees.

      Argued and submitted March 30, 1897.
    Opinion handed down April 26, 1897.
   The opinion of the court on the original hearing was delivered by

Wateins, J.,

and affirmed the judgement of the District Court.

Rehearing granted May 31, 1897.

Argued and submitted for rehearing November 3, 1897.

Opinion handed down November 15, 1897.

The opinion of the court was delivered by

Miller, J.

This appeal is by the plaintiff from the judgment dis - missing her demand for immovable property held by defendants under mesne conveyances, based on an adjudication, under the Act No. 84 of 1884, to the author of defendants’ title to pay State taxes prior to 1879. The defendants, answering the appeal, pray that the judgment be amended so as to decree them to be the owners of the property.

Martin Druhan, under whom plaintiff claims, acquired the property in 1867, died on 24th of July, 1876, and his widow was recognized and ordered to be put in possession as his universal legatee on the 27th of the same month. The State taxes, the basis of the tax sale to the author of defendant’s title, were for the years 1876, 1877 and 1878 assessed to Martin Druhan, and the tax deed under the Act No. 82 of 1884 was executed in 1886. The ground of plaintiff’s suit is that no title passed to defendants by the tax sale, because Martin Druhan was dead when the assessments were made. The defendants urge that Druhan was living when one, at least, of the. assessments was made, and they rely on the tax deed under the act of 1884 as conclusive of the validity of the assessments.

The act of 1884, passed as the Legislature conceived to make operative the constitutional provision relative to taxes accrued prior to 1879, provides that the tax collector’s deed for property sold under that act shall be conclusive of the validity of the assessment. The Constitution gave a liberal grace to all delinquent taxpayers, even to that class whose property had been forfeited or purchased by the State. But after that grace it was the purpose of the Constitution to direct legislation for the realization of all taxes then delinquent by an effective method of sale. This method was to give such sales all the protection the law could afford by guarantees protecting purchasers. Hence, the provision in the act that the tax deed should conclusively establish the valid - ity of the assessment of the taxes to pay which the sale was made. In the litigation that arose under this act soon after its passage, the Supreme Court of that period sustained this provision of the act in reference to the efficacy of the deed, and we have had occasion to announce that these decisions, in all cases where they applied, would not be deemed open for discussion. Oonstitution Ordinance for relief of delinquent taxpayers. In the matter of Orloff Lake, 40 An. 142; In re Douglas, praying for a writ of possession, 41 An. 765; Castillo vs. McConnico et als., 47 An. 1473.

The defendants hold under a tax deed to enforce payment of taxes of the class embraced by the constitutional provision as to delinquent taxes and by the act of 1884. In applying the decisions to which we have referred, we have held that the tax deed under the act oi 1884 would not give validity to assessment in the name of the deceased made years after his death. We have distinguished assessments of that character from those which our predecessors held were made conclusive by the tax deed. Edwards vs. Fairex, 47 An. 170; Walshe et al. vs. Harang and Husband, 48 An. 984. Unless the case now before us is to be withdrawn from the scope of the decisions 40 An. and 41 An., and brought within the purview of our decisions in 47 An. and 48 An., the tax deed of the defendants must be maintained.

The taxes due on the property, the deed recites, are for the years 1876, 1877, and 1878. For the last two years the assessments were unquestionably after the owners death. But there remains the assessment of 1876, sufficient, if valid, to maintain the deed. Under the law of that period the assessment rolls were not completed till near the close of the assessment year, and the following year was necessarily that of collection. Act No. 42 of 1871, Secs. 23, 39, 45 and 48; Act No. 16 of 1875. The Oonstitution of 1879 made a change requiring the tax to be designated as of the year of collection and the legislative interpretation of this was to make the assessment and collection year conform, and, hence, annulled the assessment of 1879, which we conclude had been levied in 1879 for 1880. All this led us to the inference announced in our previous opinion that the tax of 1876 had been levied in 1875, the year before the owner’s death. In this it is insisted we were in error, q;nd as the record does not show with precision the date of the assessment, we deal with the tax of 1876 as if assessed in that year. In that view can we avoid the assessment and the title of defendants based on it?

Under the law of the period of that assessment the preparation of the roll was to begin early in the year, and to be consummated except to correct errors, usually those of valuation, by the 1st of August. The owner in this case was living through all the stages of the assessment up to the 24th of July — that is, within seven days of the consummation of the rolls save to correct errors. Both he and his testamentary heir and widow in community knew that the period for the assessors to obtain the information to make the assessment had gone by; that the delay for the owner to furnish the lists of his property had also expired, and that the date was near at hand to close the rolls, except to correct errors, of which there is not the faintest intimation, save that which the argument supposes arises from the death of the owner, on the 24th July of the assessment year. Act 42 of 1871, Secs. 23, 39, 45, 48, Act No. of 1875. Are we then to hold void an assessment in course of preparation, at least, and within a few days of consummation when the owner dies, and of which he in his life and his heir after his death was fully apprised, or to state it in another form are we at liberty to hold such an assessment void and annul the tax sale on it, notwithstanding the constitutional provision as to tax sales, and the act of 1884, that the tax deed under that act shall be accepted by the courts as conclusive of a legal assessment? To so hold would be a marked advance on the exception to the protecting provisions in this act of 1884; we have felt constrained to recognize in our previous decisions. To hold, as we have held, an assessment void to support a tax sale by which the owner is divested of his property when the assessment is made in the name of the dead owner years after his death, and necessarily conveying no notice actual or of reasonable presumption, essential to sustain such divestiture of title, is radically different from the proposition the plaintiff’s case undertakes to affirm, that an assessment in -fieri, at least, if not practically consummated before the owner’s death, is now after twenty years to be set aside and the tax sale based on it annulled at the suit of his heir and widow in community. In our view no such decision can be made with due regard to the jurisprudence under this act of 1884 fixed by our predecessors, or consistently with the limitations, we have sparingly recognized in reference to the provisions in the act, that the tax deed is conclusive of the assessment. We think the assessment of 1876 in fieri we are authorized to presume, and within seven days of consummation for all the purposes of this discussion, bound the owner and his testamentary heirs now seeking after a long lapse of years of acquiescence to call in question that assessment and the tax sale made under it.

It is therefore ordered and adjudged that our former decision remain undisturbed, and that the judgment of the lower court be affirmed with costs.


author: Nicholls, C. J. Miller, J.

text:
    No. 12,580.
    State of Louisiana vs. Dennis Smith.
    The defendant -was tried on an indictment for murder and found guilty of manslaughter. On amotion for a new trial the verdict of the jury was set asi-de.
    At a subsequent term of the court the defendant pleaded his former acquittal of murder as a bar to further proceedings against him for that crime. His plea was sustained.
    He was called for trial on the same indictment and protested that he could not be tried again on the same indictment, which charged him with murder, and insisted that he should only be tried on a new indictment found, or information filed, charging him specifically with the crime of manslaughter,
    The District Court held that he could be tried on the same indictment, but only for manslaughter.

      Held — Where, upon atrial of a person indicted for murder, accused is convicted of manslaughter, and the conviction is set aside, he may be tried for manslaughter on the samd indictment. Neither law nor jurisprudence require that he could only and legally be tried on a new indictment charging manslaughter. State vs. Dunn, 41 An. 612; State vs. West, 45 An. 938.
    It is clear that upon the second trial on the original indictment the District Attorney and the court would necessarily have to explain to the jury the modification in the situation resulting from the effect of the verdict upon the first trial. State vs. Evans, 48 An. 218; McQueen vs. State (Ala.) 15 So. Rep. 825.
    The indictment did not fall as the result of the court’s decree — the charge against the defendant under the existing circumstances was simply reduced to manslaughter.
    APPEAL from the Fourteenth Judicial Court for the Parish of Iberville. Talbot, J.

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

      Clarence■ 8. Hebért for Defendant, Appellant.
    Submitted on briefs November 6, 1897.
    Opinion handed down November 20, 1897.
    Rehearing refused November 30, 1897.
   The opinion of the court was delivered by

Nicholls, C. J.

On January 13, 1897, the grand jury of the parish of Iberville indicted the defendant for murder. On this indictment he was tried by a petit jury on January 25, and on the following day was found guilty of manslaughter. He immediately applied for a new trial on the ground (first) that the verdict was contrary to law and the evidence; and (second) because one of the jurors in the case was not a citizen of the parish. After evidence adduced the motion was sustained, but without assignment of the grounds upon which the ruling was made.

On July 12, 1897, at a subsequent term of the court, defendant filed the following plea in the case:

“ Now into the court by his undersigned counsel comes the defendant, and upon suggesting to the court that he has been acquitted of the charge of murder by a petit jury at the last jury term ©f this court in and for .the parish of Iberville, pleads said acquittal, in bar of any further proceedings against him for murder. Wherefore he prays that said charge of murder against him be dismissed, and further prays for costs and for general relief.”

We find in this record the following entry as of the 13th of July:

State vs. Dennis Smith.
The plea of autrefois acquit filed in this cause Vwas this day taken up, submitted and sustained J by the court in so far as the charge of murder was concerned.”

The case was on the 15th of July fixed for trial for the 28th of the month. On that day leave was granted defendant’s counsel to file a “ protest,” which, according to the record, was taken up, submitted and overruled by the court.”

It read as follows:

“ Into this Honorable Court comes Dennis Smith, by his counsel, and, suggesting to the court that a plea of autrefois acquit urged by him, in so far as the charge of murder is concerned, has been sustained by the court, as appears from the minutes of the court hereto annexed as a part hereof, protests against going to trial in this case for the following reasons:
“ 1. Because no indictment or informationis filed in this case charging him with any crime, as required by law.
“ 2. Because if any indictment or information has been filed herein, which is not admitted, but specially denied, no copy of same has been served on appearer, as required by law. Wherefore, the premises considered, appearer protests against going to the trial of this case until these requirements of the law have been complied with, and further prays for general, special and equitable relief in the premises.”

On the trial of this exception or protest it was admitted “ that the indictment against the defendant for murder in suit No. 1355, State vs. Dennis Smith, a truebill, Charles E. Grace, foreman, indictment — murder—was served on the defendant as required by law, as stated in the return of the sheriff of said service.”

The court, over defendant’s objections, ruled him to trial, and he reserved a bill of exceptions to the ruling and action of the court. In this bill he stated and complained that, although the original indictment in the case was duly served on the accused previous to the first trial of the accused for murder, neither the same indictment with the verdict thereon nor any other indictment was served upon him.

The judge’s addendum to the bill was as follows:

“The motion, so far as it affects the validity of the indictment, is not in the proper form as required by the rules of criminal practice, which should have an,exception in bar or a motion in arrest of judgment. As the legal question presented under the second ground of the motion is also involved in the first, it may be considered of better consequence.
“ The idea of defendant’s counsel is that the defendant should have been reindicted. I regard this question as settled adversely to counsel’s idea, and deem it only necessary te refer the court to the authority on the subject. State vs. Byrd, 31 An. 419; State vs. Hornsby, 8 Robinson, 588.
“The cases of State vs. Chandler, 5 An. 489, and State vs. Desmond, 5 An. 398, were remanded to be tried evidently on the same indictment. The counsel for defendant was apprehensive that the jury might be misled by the charge of murder, and desired that it might be eliminated in advance by a motion that he presented. This was sustained in so far as the charge of murder was concerned. I understood that the counsel acquiesced in this proposition. Having been legally arraigned, as the record shows, and from the admission of the defendant previous to the first trial, a second arraignment was unnecessary.
“ Defendant reserved two other bills of exception. The first bill recites that when the jurors were called and examined on their voir dire the District [Attorney proceeded to state to them that the accused had been indicted for murder, but that a petit jury had found him guilty of manslaughter, which in law amounted to an acquittal for murder, and that, therefore, the accused was only on trial for manslaughter; that accused objected to these explanations and statements for the reasons stated in the bill of exceptions reserved to the ruling of the court to trial over his protest and objections, and because that the statements were calculated to prejudice the case of the accused; that the court overruled the objections and permitted the District Attorney to make these statements and explanations to the jurors who were in turn accepted and sworn to try the case.”

The judge made the following statement in regard to this bill: “ The question as stated by counsel is more elaborate than that propounded by the District Attorney, which was that defendant had been indicted for murder and was now being tried for manslaughter, but I imagine that this is immaterial. The jurors were on their xoir dire and the question was essential in order to inform them of the character of the case to be tried, and was according to the rule which is invariably pursued in criminal trials. The question was also based upon facts apparent upon the indictment which would have been disclosed to the jury when the indictment was delivered to them for deliberation. It would be necessary, further, for the court to state the facts involved in the question in order that the jury might not be misguided and for the protection of the defendant.”

The second bill was substantially to the same effect, differing sim - ply in the fact that it is recited that the District Attorney made the statements and explanations to the jury after the jurors had been sworn and after reading to them the indictment.

The court’s addendum to this bill was that the objections in the same were substantially embodied in the other bills and presented the same idea; that the jury could not have been prejudiced, as they were instructed in the charge that the indictment for murder and the verdict endorsed thereon should not be allowed to influence them, and the latter part of this instruction was given at the request of defendant’s counsel. That, in fact, the instruction and statement of the counsel were proper and necessary in order that the jury might fairly and properly perform their duty.

In the brief filed on behalf of the defendant his counsel declares: “There is only one point to be ¡determined by the court, which is, was there a valid subsisting indictment against the accused? If there was, it is certain that an explanation to the jurors as to how the defendant came to be tried for manslaughter was necessary, and it is also certain that the indictment had to be read to them, and the statements and explanations made by the District Attorney at the time of reading to them were again necessary * * the whole controversy has arisen from the judge of the lower court sustaining the plea of autrefois acquit without reserving to the State any right she might have to proceed against the defendant for manslaughter. In other words defendant contends that the court dismissed entirely the indictment against him absolutely and without reservation, sustaining his plea of autrefois acquit as to the charge of murder, and that if the District Attorney still desired to prosecute for manslaughter he was bound to have him reindicted by the grand jury, or he should have filed an information charging that offence. * * * It is perfectly clear that a party convicted of murder on an indictment charging murder can, if he obtains a new trial, be tried for murder on the same indictment. The theory of the law is that, while the conviction for the lesser offence dismisses from the indictment not actually but by legal contemplation the charge of the greater offence, it retains in the indictment the charge of the less offence. Suppose, however, a man is convicted of manslaughter on an indictment charging murder and a new trial is granted, if the District Attorney enters a nolle prosequi as to the charge of murder can he try the defendant for manslaughter on the same indictment if he has not reserved the right to do so? Most assuredly not. When the nolle prosequi is entered as to the charge of murder without reservation all the words in the indictment that charge murder go, therefore there is no charge of manslaughter left in the indictment.” Defendant relies upon State vs. Hornsby, 8 Rob. 584; State vs. Byrd, 31 An. 419, and Brittain vs. State, 7 Hump. (Tenn.) 159, and People vs. Porter, 4 Parker Crim. Rep. 524. It will be seen that defendant concedes that but for the fact that he filed as he did a plea of autre-fois acquit so far as the charge of murder was concerned, and that the court sustained the same, he would have no ground of complaint, and his contention even now is simply that he can not be tried on the original indictment but under an information or a newly found indictment. Where upon the trial of a person under an indictment for murder, accused is convicted of manslaughter, but on appeal the conviction is set aside on his motion, it is unquestionable [conceding that he might not be liable to be put upon his trial a second time for murder] that he may be tried for manslaughter on the same indictment — that neither law nor jurisprudence require that he could only and legally be tried on a new indictment specially charging manslaughter. (State vs. Dunn, 41 An. 612; State vs. West, 45 An. 933.) It is also clear that upon the second trial on the original indictment the District Attorney and the court would necessarily have to explain to the jury the modification in the situation, resulting from the effect of the verdict upon the first trial. (McQueen vs. the State (Ala.), 15 Southern Rep. 825; State vs. Evans, 40 An. 218.) We have, in view of these facts, simply to inquire whether the filing by the defendant of the plea of autrefois acquit as to the charge of murder, and the ruling of the court thereon, had the effect which the defendant contends for.

It is useless to enter into a general discussion as to what the situation would have been had the District Attorney entered in the ease a formal nolle prosequi as to the charge of murder for the reason that there was no nolle prosequi at all entered.

The whole claim is that by reason of the fact that defendant had under the circumstances of this case filed a plea of autrefois acquit so far as the charge of murder was concerned, and had succeeded in obtaining from the District Court a ruling sustaining that position, the whole indictment necessarily fell. If it be assumed as a conceded fact that the defendant, by having been on trial before a jury under an indictment ior murder, and by having been found guilty of manslaughter by the jury, was protected, under the circumstances of this case, through that verdict, from a further prosecution for murder, though the sentence was set aside and a new trial accorded defendant on his prayer (which is what the District Court decided) the consequences to flow from that assumed condition of affairs would be those which the law itself attached to it. Defendant, by interposing before a second trial a plea of autrefois acquit, as he did, so far as the charge of murder was concerned, and by obtaining a ruling of the District Oourt sustaining that claim, acquired through that ruling no position other and different as to the after results of the declared existing situation from what he would have otherwise held had the actual legal situation been such as the court decreed it to be. The ruling, standing unreversed, would protect defendant from a second prosecution for murder, but it would leave untouched all questions as to defendant’s liability under charges for crimes other than murder, and all questions as to the time and method of the presentation of such charges. These matters would have to be tested as they arose, by the application to them of legal rules and the jurisprudence of the State.

■ So tested defendant’s contention that he is as entitled under the circumstances of this case to be brought to trial only upon a new indictment or an information specifically charging him with manslaughter finds no support. The indictment did not fall as the result of the court’s decree — the charge against appellant under the existing indictment was simply reduced to manslaughter. (State vs. Evans, 40 An. 218.) The situation is precisely the same to-day as if the District Attorney of his own accord without any plea filed by the accused had announced to the jury that defendant though charged with murder could no longer be legally tried for murder, that he would be tried by them under the original indictment, but simply upon a charge of manslaughter. Had matters taken that shape and form the accused under the jurisprudence of the State could have found no legal ground for complaint.

The court has decreed in this ease that defendant is protected by the verdict of the jury though set aside by the court from any further prosecution for murder. The State has acquiesced in that decree. It is not before us for review. We have to accept it as the law of the case. It is clear besides that neither defendant’s plea ■ nor the court’s action on it were intended to go further than to protect defendant from further prosecution for murder. The qualified language both of the plea and of the ruling upon it show that the former was not aimed at and did not result in throwing the whole indictment out of court. It could not be claimed under that language that it was either urged before the court or admitted by it that by reason of jeopardy incurred through the first trial defendant was protected against a charge of rpanslaughter. Appellant, as we understand, advances no pretension of that character.

The judgment, in our opinion, is correct, and it is hereby affirmed.

CONCURRING Opinion.

Miller, J.

The accused, indicted for murder and convicted of manslaughter, obtained a new trial. Afterward put on trial he plead autrefois acquit sustained by the lower court so far as the plea related to the charge of murder. Then the accused filed what is termed a protest against further proceeding in the trial on the ground that the plea of autrefois acquit having been sustained there was no indictment to support the trial, and the protest overruled, exceptions were reserved. In the course of empaneling the jury exceptions were reserved on behalf of the accused to the statement or explanation by the District Attorney to the jurors on their voir dire examination, that the accused, having been indicted for murder, convicted of manslaughter, and a new trial granted, could be tried again on the indictment only for manslaughter, and to the same statement and reading of the indictment to the jury by the District Attorney in the course of the trial, the defence also reserved exceptions. The grounds of these exceptions are that the statement and reading the indictment for murder was calculated to prejudice the accused in reference to the charge of manslaughter, and because there was no indictment for that offence. These grounds, after the conviction of the accused for manslaughter, were again assigned in the rule for new trial, to the refusal of which exceptions were also reserved by the counsel for the accused. His sentence and this appeal followed,

It has been supposed that the granting of a new trial in a criminal case reinstated the indictment in full force as fouhd by the graud jury. As it has been put, “ the new trial is a new hearing of the case by another jury, but with as little prejudice to either party as if it never had been heard before, no advantage is to be taken of the former verdict or the awarding of the new trial. Our courts, however, held at an early period, and it has been repeated in the later decisions, that the accused indicted for murder and granted a new trial ■on the conviction for manslaughter, can be tried only for manslaughter. State vs. Hornsby, 8 Rob. 583; State vs. Desmond, 5 An. 398; State vs. Dennison, 31 An. 847.

The indictment for murder includes the charge for manslaughter. Our statute expressly authorizes the verdict for the lesser offence when murder is charged. Revised Statutes, 8785; State vs. Moore, 8 Rob. 518. The granting of the new trial does not end the prosecution, but simply requires another trial of the indictment. In this case the first conviction for manslaughter followed by the new trial entitled the prisoner to a trial for the lesser offence but that was charged in the pending indictment. There was no necessity for another. State vs. Boyd, 38 An. 374; State vs. Bird, 31 An. 419. There was then no objection, in our view, to the State proceeding with the trial in this case on the indictment as it stood, modified in its scope by the first conviction for manslaughter, and the granting of the new trial.

Nor can we perceive that the right of the State thus to proceed was at all affected by the plea of autrefois acquit sustained only as it related to the charge of murder. Sustaining the plea as to murder simply announced the legal effect of the previous conviction for manslaughter. The argument for the defence insists that sustaining the plea as to murder dismissed the prosecution without qualification. But, in our opinion, sustaining the plea only as to murder was quite the same as an express reservation to prosecute for manslaughter on the pending indictment. There was no necessity for another, nor do the terms in which the plea was sustained bear the construction that another indictment was to be preferred. If, therefore. as we hold that the first conviction for manslaughter set aside and a new trial ordered, left the indictment in full force for manslaughter, we can not appreciate that maintaining the plea of autre-fois acquit as to murder, in any manner, disabled the State from proceeding in the trial for manslaughter.

If the State was entitled to proceed on the pending indictment, there is an obvious. answer to the other bills in the record which draw in question the reading of the indictment and the statement by the District Attorney to the jury, that though indicted for murder the accused could be convicted only for manslaughter. The State was entitled to inform the jury and they were eutitled to • know the charge on which the accused was on trial. This could be accomplished in no mode substantially different from that adopted by the District Attorney. In the State vs. Denis, 31 An. 847, under a like indictment and previous conviction for manslaughter, the verdict on the second trial, though only for manslaughter, was set aside, because the court refused to sustain the plea as to autrefois acquit as to murder and ruled the accused was in the same position as he was before the trial and would be tried on the same indictment for murder. The ruling was erroneous; the court held that the accused was on trial for murder though convicted only for manslaughter. The instruction of that decision is that the jury should have the explanation that, though murder was charged the conviction could be only for manslaughter. All, therefore, the District Attorney stated to the jury in this case accompanied with the reading of the indictment the jury were entitled to know, and if withheld there would have been the basis to set aside the verdict. In this respect the bills show no error.

I concur in the decree affirming the sentence.


text:
    No. 12,590.
    State of Louisiana vs. John Graham.
    An omission of a word indispensable to make sense was a matter of substance and not a mere matter of form.
    The indictment was fatally defective; it could not be amended so as to render it valid.
    Though clear the idea the grand jury intended to convey an indictment, as relates to substance, can not be made legal by intendment. State vs. Johnson,. 4G An. 6.
    When an indictment does not set forth a crime an amendment does not have the effect of supplying the omission.
    The indictment was quashed and the case remanded for further action by the court a qua,

    A PPEAL from the Sixth Judicial District Oourt for the Parish of Franklin. Ellis J.

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

      J. L. Taylor, for Defendant, Appellant.

      Submitted on briefs November 6, 1897.
    Opinion handed down November 15, 1897.
   The opinion of the court was delivered by

Breaux, J.

The accused was indicted for murder, found guilty as charged, and was sentenced to suffer the extreme penalty of the law. From this sentence and judgment of the court he has appealed.

The appeal is before us on a motion to quash and a bill of excep - tions. The former was based upon the ground that the word “ did” had been omitted.

The indictment charged: That one John Graham wilfully, feloni-ously, and of his malice aforethought, kill and murder one Gip Taylor. The indictment reads: “ That one John Graham, late of the “ parish of Franklin, on the 6th of August, with force and arms in the “ parish of Franklin aforesaid, and within the jurisdiction of the Sixth “ Judicial District Oourt in and for the said parish of Franklin and “ State, wilfully, feloniously and of his malice aforethought, kill and “ murder one Gip Taylor, a person in the peace of the State.”

The accused having moved to quash the indictment, the District Attorney filed a motion to amend by inserting “ did ” in the indictment. The motion to quash was overruled and the amendment was allowed. The other ground was presented in a bill of exceptions reserved to the ruling of the court in having permitted the prosecuting officer to introduce a shotgun in evidence for the purpose of proving that it was the same from which a moss wadding had been fired, found upon the bed of the deceased. The bill of exceptions does not set forth the ground of objection and does not inform us whether the foundation had been laid by evidence that the wadding or the gun was that used by the accused in committing the crime for which he was called upon to answer, viz.:

“The prosecution offered in evidence at the trial of this case a muzzle-loading shotgun, alleging it to be the property of defendant, ■for the purpose of identifying it with a piece of moss said to have been fired from a muzzle-loading shotgun, which piece of moss was found on a quilt on which deceased was lying when shot; said testimony tending to throw suspicion on John Graham as the party who did the killing.”

Returning to the first ground before us for decision, it is evident from a reading of the indictment that it does not charge a crime to have been committed by any one. The part of the section under which the amendment was made reads: “Whenever there is a variance in certain points between the indictment and the evidence it is lawful for the court, on or before the trial is had, if it considers that the variance is nob material to the merits of the case, and that the defendant can not be prejudiced thereby in his defence on such merits, to order the indictment to be amended.”

Again, part of another section reads: “Every objection to any indictment for any formal defect may be amended.” Sec. 1064.

Another section provides that it shall be sufficient in every indictment for murder to charge that the defendant did kill and murder the deceased.

It is obvious that the amendment was not made with the view of' correcting any of the errors indicated by the statute as susceptible of correction. There was no question of variance between the indictment and the evidence. The defendant did not have legal notice of the charge.

The defect is clear; there is against the defendant no allegation of a crime.

One indicted, as relates to essentials, must be brought within the letter of the statute. The court can not supply an omission or allow an amendment to render sufficient that which the law prescribes shall be, without amendment, sufficient. Were it otherwise the amended indictment would no longer be the finding of the grand jary.

While it is true that errors of names, dates and other similar errors may be amended under the statutes, from which we have quoted, the offence as relates to essentials must be set out with sufficient certainty in the indictment as handed in to the court.

As illustration we quote from Mr. Bishop: “ The clause made it punishable to keep intoxicating liquors with the intent to sell them, and that particular form of complaint should be deemed sufficient.”

A complaint exactly in this form that the defendant had in possession liquors intended for sale was adjudged inadequate; for, consistently with this allegation, the forbidden intent might have been some other person’s. “It is not,” said Kent, J., “ matter of form, but matter of substance. No averment on the omission whereof it. does not appear that an offence has been committed can be made matter of form. Bishop’s New Criminal Procedure, Yol. 1, p. 104.

In the absence of the word “ did ” or of an allegation equivalent in meaning, it was a matter of substance which could not be amended.

With reference to intendment this court said in State vs. Johnson, 46 An. 8: “ However clear we may be as to the idea which the jury intended to convey, we can not reach a judgment in a criminal case purely by intendment, as we would here have to do.”

The Supreme Court of Texas, in State vs. Hutchinson, 26 Texas, p. 112, said: “The objection that the indictment does not charge that the defendant 'did ’ the acts supposed to constitute the offence was well taken. The omission of so important a word, a word indispensable to make sense, in charging the offence, ought not to be supplied by intendment.”

In 30 Texas, p. 361, a similar view was expressed: “ The word 'did ’ is essential to the validity of the indictment.”

The word “ did” is essential; and we add “ or its equivalent.”

After careful study and an examination of authorities, we have found no ground upon which it was possible for us to hold that the indictment was amendable.

It would serve no purpose for us to expressly pass upon the remaining ground urged by the defendant as set forth in the bill of exceptions. In the absence of statement to the contrary it follows that proper foundation was laid for admitting the gun in evidence, although that fact is not set forth in the bill of exception.

It is therefore ordered, adjudged and decreed that the indictment be annulled and quashed; also the judgment and sentence appealed from as not good in law, and that the verdict of the jury be set aside and the defendant remanded in custody subject to the' orders of the District Court of the parish of Franklin.


text:
    No. 12,605.
    State ex rel. Robinson Mineral Springs Company, Limited, vs. F. D. King, Judge Civil District Court, Parish of Orleans.
    The judge of the District Court has the authority to permit an execution upon a judgment after the suspensive character of the appeal had expired.

      The suspensive appeal having been dismissed, and the judgment made executory, the appellant, -who had the right o£ appeal from the judgment of dismissal, is . -without right to a reversal of the judgement under the supervisory jurisdiction of the Supreme Court.
    There was no injury upon which to base a writ of certiorari, for the relator had the right to take a devolutive appeal after the order of dismissal of the suspen-sive appeal had been entered.
    lN APPLICATION for Writ of Certiorari.

      Ernest T. Florance for Relator.
    Respondent Judge pro se ((?. V. Soniat, of Counsel) .
    Submitted on briefs November 2, 1897.
    Opinion handed down November 15, 1897.
   The opinion of the court was delivered by

Breaux, J.

The judgment was against plaintiff, rejecting his demand.

Plaintiff presented his petition for a suspensive appeal within the delay prescribed by law, .but did not within that delay furnish a bond either for a suspensive or devolutive appeal.

The judge a quo had had issued his order granting a suspensive appeal upon plaintiff furnishing bond in the sum of one hundred dollars. The appeal was made returnable to this court on the first day of November of this year.

The defendant moved the court below to dismiss the appeal on the ground that the ten days’ delay for perfecting the appeal had elapsed. The motion to dismiss was heard contradictorily with all parties in interest. After hearing, the appeal was dismissed.

Relator invoked the exercise of the supervisory power of this court to have the order of dismissal of the appeal rescinded, and in his application for a writ of certiorari alleged that the action of the District Judge was beyond his jurisdiction. That he, relator, was entitled to have the court’s action annulled and his appeal ordered to be reinstated as a devolutive appeal. . .

As relates to want of jurisdiction, we think the court a qua was vested with power to rescind or annul the order of appeal in so far as it was suspensive, and order execution to issue upon plaintiff’s failure (in the case in which the appeal was dismissed) to prosecute its appeal by furnishing a suspensive appeal bond. To that extent there is no serious issue before this court.

In State ex rel. Roman vs. Judge, 22 An. 592, this court held that the court a qua retained the power to pass upon the insufficiency of the bond, and in finding it insufficient to set aside the appeal, and direct execution to issue.

It remains for us to decide whether, upon this application for a writ of certiorari, we should direct the court a qua to reinstate the order of appeal, that the relator in the court below, relator here, may exercise its right to file the bond, as for a devolutive appeal.

The relator’s counsel in the brief truly says, that the question is settled by the adjudications of this court on the subject of taking appeals, where a plaintiff obtains an order for appeal, and the amount is fixed'by the judge; that plaintiff can maintain his appeal, as a devolutive one, if the amount of the bond is insufficient for a suspensive appeal.

But in all the cases to which our attention was directed, the bond had been filed, when the ruling was made, sustaining the appeal, as a devolutive appeal only. Here, we have noted that no bond had been filed at the date of the ruling, and at this time the return day has lapsed. A ruling upon the subject after the filing may, we think, properly be different from what it should be, if made, prior to the filing of the insufficient bond under the court’s order for a sus-pensive appeal.

If made after the filing of an insufficient bond, as to the amount, the action being that of the court in fixing too small an amount, it may be remedied by ordering the appeal to stand as a devolutive appeal. It has been held in Succession of Keller, 39 An. 580, that the order gives the right to file a bond for a devolutive appeal if tendered before the appeal be dismissed; we can not, however, annul a dismissal because the party afterward claims the right to furnish a bond.

Moreover, he has not shown injury, or possible injury needful in order that a writ of certiorari may issue. One’s omission to furnish a bond and fulfil the condition precedent for a suspensive appeal will not always preclude him from applying for a devolutive appeal.

If, as contended by respondent, relator had lost his right of appeal by the sole fact that the bond was not filed until more than ten judicial days after the judgment was signed, the allegation of injury made by the relator would thereby find ample support. Such, however is not our view, and we, in consequence, do not find injury possible. The application on that ground is not sustained.

The appellant had not furnished bond and the appellee had not been cited to answer the appeal. There was no abandonment of the right to appeal (C. P. 901).

The court said:

“The inability or the omission of the plaintiff to furnish a bond and fulfil the condition precedent upon which a suspensive appeal was granted did not preclude the party from applying within the year for a devolutive appeal ” (Gibson vs. Selby, 2 An. 629); citing a number of decisions in support of the opinion.

The application does not show special ground or cause for its issuance. The relator has other ample remedy. The time for taking a devolutive appeal has not elapsed. The right of taking an order for a devolutive appeal is answer enough to question relating to alleged injury.

It is ordered and adjudged that the writ is denied and our previous order set aside.

Miller, J. I concur on the ground the remedy was by mandamus.