author: Manning, J.

text:
    No. 1209.
    The State of Louisiana vs. Jack Robinson.
    Whore the property stolen was a piece of ¿neat and was charged in the indictment to be the property of A, and the proof was that B, who was the seller of it, had cut it off a larger piece and had put it on the counter, and A paid for it, and it was stolen before A took it up, held : the delivery was complete; the property was rightfully laid in A, and the conviction was legal.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.

      i

      F. F. Perrodin, District Attorney, for the State, Appellee.

      O. W. JDuBoy for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The defendant was convicted of larceny and was sentenced to two years’ hard labor. He relies upon two grounds for reversal.

1. He assigns as error upon the face of the record that it does not affirmatively appear that the accused was present in court when the verdict was rendered.

He has not read the record with care. The minutes of the trial day are, “now comes the prisoner Jack Robinson in the custody of the sheriff and to the bar is led. Comes also the following jurors,” and so continuously through the several stages of the trial without interruption until its close with the rendering of the verdict.

It would have been matter of surprise if the minutes of a court, presided over by so careful and vigilant a Judge, should have been wanting in the mention of a fact, the omission of which has been fatal to so many prosecutions latterly, and the need of which this Court has fastened upon the memory of the inferior courts and of their officers.

2. A bill of exception was taken to the proof of the taking, on the ground that the thing stolen had not been delivered to the purchaser.

The thing stolen was a piece of meat, of which the thief possessed himself after it was cut off and before the purchaser removed it.

The lower Judge effectually disposes of the objection in his reasons inserted in the bill: “the proof that the meat was that of the prosecutor was ample and complete. He had bought the meat and had paid for it. It was cut off from a larger piece by the vendor, and was laid on the counter to be carried off by the purchaser when it was stolen.”

The delivery was complete, the property was rightly laid in the purchaser, the conviction was legal, and the sentence must stand.

Happy the thief who finds his opportunity in the interval while the thing he covets is in transit from the manual possession of the seller to that of the buyer, and whose nimble fingers attach the prize, provided he can find a conrt that will give ear to such quibbles.

Judgment affirmed.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 1202.
    Joseph Block vs. Octave Fontenot, Assessor.
    In a suit involving the correctness of the assessment of plaintiff’s property, the jurisdiction of the Supreme Court must be tested by the amount in dispute, which is the tax which would be due on the difference between the assessment complained of and the assessment urged by the taxpayer. If such a tax does not exceed one thousand dollars, the appeal must be dismissed.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.

      John H. Ogden for Plaintiff and Appellant.

      JPerrodm & HuBoy for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

Plaintiff complains that Ms property, which he alleges to be worth fifteen thousand dollars, has been erroneously and uDjustly assessed at twenty-five thousand dollars, and ho prosecutes this appeal from an adverse judgment.

His pleadings do not present the question of the legality or constitutionality of any tax to be levied under the assessment complained of. That branch of our jurisdiction has therefore no application to this case, and our jurisdiction must in consequence be tested by the amount in dispute.

Under the only issue presented by the pleadings, the amount in dispute or matter in controversy is the amount of the taxes, at the rate of six mills for the State and two mills for the parish, which plaintiff' would be called on to pay on an assessment of ten thousand dollars, which is the difference between the alleged value of his goods and the valuation adopted by the assessor, and that amount would be far less than one thousand dollars.

It is, therefore, clear that we have no jurisdiction in the premises, and that the motion to dismiss the appeal on that ground must prevail.

The question is not new j it has already come under our review, and has twice received a similar interpretation at our hands.

- Our decisions on the point have doubtless escaped the attention of plaintiff’s counsel or otherwise he would not have brought his appeal to this Court. Gillis & Kennet vs. Clayton, Assessor, 33 An. 285; City of New Orleans vs. J. W. Blanks and F. A. Blanks, 35 An. not yet reported.

This appeal is, therefore, dismissed at appellant’s costs.


text:
    No. 1173.
    The State of Louisiana vs. Alfred Humphries.
    The State can appeal from a judgment quashing an indictment before trial,, when the offence charged is punishable capitally or at hard labor.
    Sec. 790 Rev. Stats, denounces as a crime the shooting, etc., any person with murderous intent, whether done while lying in wait, or while perpetrating arson, etc. Tho circumstances under which the shooting was done may be either those of lying in wait, or perpetrating other named crimes, and an indictment charging the shooting under either will be good.
    An error in date of the term of court at which the indictment was found may be corrected with leave of the court.
    The insertion in the indictment of the words "with a dangerous weapon ” is not essential, where all the ingredients of the crime that are set out, necessarily imply the use of a dangerous weapon.
    APPEAL from the Twelfth District Court, Parish of Rapides. Bar-bin, J.

      E. Q. Hunter, District Attorney, for the State, Appellee,

      M. 0. Mosely and It. P. Hunter for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

A motion to dismiss was filed on the ground that the State cannot appeal from a judgment adverse to her in a criminal case, but it is abandoned, the decision of State vs. Taylor, 34 Ann. 978, having settled the contrary where the appeal is from a judgment quashing the indictment before trial, and the offence charged is punishable capitally or with imprisonment at hard labor.

The indictment is based on Rev. Stats. Sec. 790: If any person lying in wait, or in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall shoot, stab, or thrust any person with a dangerous weapon, with the intent to commit the crime of murder, he shall on conviction thereof be punished with death.

The statute denounces as a crime the shooting, etc., any person with murderous intent while lying in wait for him, or shooting with such intent while perpetrating arson, etc. The circumstances under which the shooting was done may be either as mentioned in the one clause or the other. If done under either and the offence is thus charged, the indictment is good.

The indictment charged that the prisoner “did wilfully,feloniously, and of his malice aforethought, while lying in wait shoot one William Norwood in the peace of the State then and there being with the intent then and there him the said Norwood to kill and murder, etc.”

The motion to quash is on five grounds:

1. That the indictment does not charge him with having committed any offence known to the law of this State.

2. That the indictment is fatally defective for duplicity in charging parts of several crimes in one count, which are punishable under different Statutes.

3. That the indictment is fatally defective in charging that the offence was committed on the 28th day of December, 1881, and was found by a grand jury which met on the 3d Monday of October, 1881.

4. That if the indictment is based on Act No. 24 of 1882, amending Article 790 of the Revised Statutes, it is unconstitutional, null and void and cannot apply to an offence said to have been committed prior to the passage of the Statute.

5. That the offence alleged is barred by .the lapse of twelve months, which prescription the accused expressly pleads.

They are insufficient. The first and second grounds are disposed of by citing the Section of the Revised Statutes already set out, and the third is founded upon a clerical error which stated the finding of the indictment to have been in Oct. 1881, when it should have been 1882, an error which was properly corrected with leave of the court. The fourth ground is answered by the statement that the indictment is not based on the Act of 1882, and the fifth by computing the time from Dec. 1881 to Oct. 1882.

It is urged in the defendant’s brief that the omission from the indictment of the statutory words, “ with a dangerous weapon,” is of such moment as to be fatal. Shooting a person wilfully, while lying in wait for the victim, with intent to kill him cannot be done without a dangerous weapon. All the ingredients of the crime—the wilful shooting, the waiting for the opportunity, the murderous intent—presuppose and imply the use of a dangerous weapon. The employment of those words in the indictment is not sacramental.

Nic.eties in judicial construction of criminal statutes, such as that urged upon us here, were deplored by Lord Hale more than two centuries ago when he wisely and feelingly said, “ that the strictness required in indictments had grown to be a blemish and inconvenience'in the law and the administration thereof; and that more offenders escape by the over easy ear given to exceptions to indictments than by the manifestation of their innocence, and that the greatest crimes had gone unpunished by reason of these unseemly niceties.”

The lower Judge sustained the motion to quash which we reverse, and therefore

It is ordered and decreed that the judgment of the court below is avoided and reversed, and the cause is remanded to be proceeded with in due course of law, the defendant to pay the costs of this appeal.


author: Fenner, J.

text:
    No. 1167.
    The State of Louisiana vs. Walter Johnson.
    Declarations of accused made an hour after tlio time, anda mile from the place of the homicide, are not admissible as part of res gestee.
    The rule that, when confessions or declarations of accused are received on behalf of the State, they must go in all together, applies only to such confessions and statements as are made at one time or in some connection with each other. The admission of confessions of accused does not justify the reception of contrary, self-serving declarations made six weeks previously.
    APPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J,

      J. O. Egan, Attorney General, and D. G. Scarborough, District Attorney, for the State, Appellee.

      Wm. H. Jack and John N. Ogden for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The exception taken to the ruling of the Judge excluding declarations made by the accused at a time one hour after, and at a place a mile distant from, the time and place of the homicide, has no merit. Such remoteness of time and place excludes the declarations from consideration as part of the res gestee. Nor is the case affected by the fact that the declarations were made in connection with the exhibition of a wound on the head of the prisoner. The Judge admitted the evidence as to the exhibition of the wound, but correctly excluded the declarations. It is urged as another reason why they should be admitted, that other declarations and confessions of the prisoner had been offered and received in behalf of the State, and that, therefore, the ones rejected should also have been received, in order that all his statements might be weighed together, with the view of enabling the the jury to test the sincerity and consistency of the confessions in their relation to the proved facts and circumstances of the case. The rule is undoubted that, when confessions or statements of an accused are offered, they must go in all together; but that only applies to declarations made at one time or having some connection with each other.

Here we find no connection whatever between the admitted confessions and the rejected declarations, the former having been made six weeks after the latter. Manifestly, the prior self-serving declarations could not weaken the effect of the later self-incriminating ones. The former fire rejected as unworthy of reliance, because springing, presumably, from self-interest; the latter are received for precisely the converse reason.

Another exception was taken to the ruling of the court admitting evidence of certain declarations and extra-judicial admissions of the prisoner, offered, after the defense had closed, as rebutting evidence.

The sole ground of the exception is, that the evidence was not, in a legal sense, rebuttal evidence. We are compelled to accept the statement of the Judge as to the purpose for which the evidence was received and this establishes its character as legitimate rebuttal evidence. From that statement it appears that the defense had offered proof, relative to a contused wound on the head of the prisoner, and tending to show a combat; the question being whether the combat took place at the time of the killing or some hours previously.

To rebut the evidence tending to establish a combat at the time of the killing, the declarations of the accused, relative to the manner of the killing and what occurred at that particular time, were offered and received.

We can discover no error in the ruling.

No other errors are assigned.

Judgment affirmed.


author: Todd, J.

text:
    No. 1174.
    The State of Louisiana vs. Oscar Garic and Lawson Garic.
    "Where the trial Judge is requested to give a special charge to the jury, his refusal to do so although the charge asked is not objectionable, is not error if the charge has been substantially covered by that already delivered by the Judge.
    The character of the deceased as a turbulent man may be looked into in determining the ■ amount of provocation, when it tends, in connection with proof of an overt act on the part of the deceased, to produce in the mind of the slayer a reasonable belief of imminent danger.
    The right of self-defence does not depend exclusively upon the reality or imminency of the danger apprehended, but whether at the time the accused had reasonable ground to believe himself in danger of losing his life or of groat bodily harm, and had no other apparent means of escape than to take the life of his adversary, and whether such reasonable grounds existed, is a fact for the determination of the jury.
    The trial Judge is not bound to charge on a particular point of law, although the charge may announce a correct legal principle, where, in the exercise of a sound discretion, he is satisfied that such charge is not applicable to the case.
    Evidence of the good character of the accused is admissible in his behalf, and is not to be limited in its effect to merely doubtful cases, but to be weighed as any other fact in the case, and as one tending in a greater or less degree to establish the innocence of the accused.
    It is not every irregularity in the proceedings, or error in the instructions of the Judge, that vitiates a verdict or sentence, but it must be an irregularity that deprives the accused of some substantial right or protection, and an error so grave as to justify a belief that, but for its commission, a different and more favorable result to the accused would have been reached. *
    APPEAL from the Criminal District Court, for the Parish of Orleans. Boman, J.

      J. O. ligan, Attorney General, for the State, Appellee.

      Wm. B. Whitalcer, Luoien Marrero and B. Dalton for Defendants and Appellants.
   The opinion of the Court was delivered by '

Todd, J.

The defendants were indicted for murder, convicted of manslaughter, and each sentenced to five years imprisonment at hard labor, and to pay a fine of five dollars, and from this sentence have appealed.

They complain of certain charges given by the trial Judge to the jury, and his refusal to give certain others requested by them, and the overruling of their motion for a new trial.

These constitute the sole grounds upon which they rely for the setting aside of the verdict and sentence.

1. Character of deceased.

On this point the Judge was asked to charge as follows :

If it be established that deceased had the reputation of being of a violent character, to the knowledge of the accused, that fact is a proper matter for the consideration of the jury, on the question of the reasonable apprehension of the accused that the deceased, at the time of the homicide, was about to kill, or do great bodily harm to them or either of them.”

This charge was declined for the reason that the Judge had already charged the jury on the same subject to the following effect:

“The character of the deceased as a turbulent man may be looked to in determining the amount of provocation, when it tends, in connection with proof of an overt act on the part of the deceased, to produce in the mind of the slayer a reasonable belief of imminent danger.”

“ Evidence of the violent character of the deceased may not only tend to establish the good faith of the apprehensions of danger by the accused, if they then had knowledge of his such character, but it may also tend to indicate that he was the assailant, and that the assault was felonious.”

“If the character of the deceased is shown to have been notorious for violence, it is for the jury to determine from the evidence whether the accused knew what was thus notorious.”

The charge declined was substantially covered by that given, and the Judge’s refusal to give the additional one could not have prejudiced the accused.

2. Self-defense.

In his charge on this point the Judge used this language :

“ But, gentlemen, in cases of this kind, the peril must be imminent, the danger great, and the party assaulted and threatened must have had no other means of escape than to kill his antagonist. Should the danger not be great, should the menaces be of no such aggravated character as to imperil life or create a reasonable belief of great bodily harm, the party killing, when no killing was indispensable, can no, longer be under the protection of that natural law of self-defense, and can no longer be excused.”

This was excepted to on the ground that it limited the right of self-defense to cases where the danger was real and imminent, whereas it was contended and properly so, that actual and real danger is not indispensable to justify killing in self-defense, but that the true test is, and should be, whether the prisoner at the time had reasonable ground to believe himself in danger of loss of life or of great bodily harm and had no other apparent means of escape. 5 An. 489; 14 An. 577; 31 An. 303.

To this extent and in this respect this part of the charge was erro-, neous, but this error was substantially corrected by the Judge a quo, by giving the following additional charges, requested by the counsel for the accused, to-wit:

“ The law does not demand of the defendant the same coolness and judgment in estimating his danger, that can be exercised by the jury in reviewing the circumstances of the encounter; but it is sufficient to justify the killing of another on the ground of self-defense, so far as the requisite reasonable apprehension is involved, that the appearances of the attack upon the defendant by the deceased, were such as to give the defendant reason to apprehend a design to do him some great personal injury, and that there was imminent danger of such design being accomplished; and what one has a right to do in defending himself, his brother present may do in his behalf, if he entertain such reasonable apprehension. A brother so interposing to protect the life or person of a brother, will be justified if death ensue.”

“ If the accused or either or them were attacked by the deceased, it was not necessary for them to fleeoravoid their adversary, if a reasonable regard for their safety, or the safety of one of them, required them to stand.”

“A blow or blows are just cause for provocation ; and if the circumstances indicate to the slayer a plain necessity of protecting himself from great bodily injury, he is excusable if he slay his assailant in an honest purpose of saving himself from this great harm.”

“If the jury find that the accused were justifiable in firing a first shot at the deceased, and that after that the deceased followed them up with the apparent continued purpose of carrying out the supposed original design, the accused were justified in continuing to resist and repel his attack, and their right to act in self-defense remained as long as they had reasonable ground to apprehend great bodily harm, or death, from him.”

These requested charges were all given with certain addenda, which did not seriously impair their force, and were made without objection at tiie time from the accused’s counsel.

It must also be noted in this connection that, in the refusal of the Judge to give other special charges asked on this point, he stated, “ that it was necessary, under the facts of the case, to dwell on what referred to the law of self-defense, that, strictly speaking, under Section 991, R. S., the Court might have abstained from even alluding to such law.”

By reference to this Section of the Revised Statutes cited, it will be seen, quoting the language of the law, “ that in charging the jury in criminal eases the Judge must limit himself to giving them a knowledge of the law applicable to the case.” What is applicable and what is not applicable is of course largely within the discretion of the Judge, and we cannot readily admit error, or at least error sufficiently grave to affect the verdict with respect to charges on the law having no bearing on real issues of the case.

For these reasons we can find nothing in this branch of the case prejudicial to the accused, and we must dismiss the objections urged to the action of the Judge'in this respect as without force.

3. Character of the accused.

The instructions-on this point were given in the following language:

“ Evidence of character, that is to say, of the reputation he has in the community where he lives, when offered in behalf of the accused, is always competent, and it often occurs that it proves to be of great benefit, to him. The prevalent doctrinéis that it tends, under many important phases of a case, to create a doubt which, but for such evidence, would not have existed in favor of the party or parties charged with crime; as it may, on the other hand, remove a doubt already existing, which, otherwise, might have weighed heavily against the accused. Evidence of character should be looked upon by the jury as part and parcel of the whole evidence submitted to their consideration. But however satisfactory, however precise it,may really be, it must not be allowed to destroy the tangible effect of direct evidence, or of uncontradicted statements of witnesses ; and still less must it outweigh in the scale of justice, and do away with or annul any conclusive evidence of actual guilt. It is entitled to the serious and honest consideration of the jury, not less, but not more, than any other legal evidence adduced on the trial. It is from that evidence, as well as from all other before them, that the jury are expected to form their final conclusion.”

Counsel for the accused requested the further charge, viz:

“Evidence of good character is not only of value in doubtful cases, but it is entitled to be considered when the testimony tends very strongly to establish the guilt of the accused. The good character of the prisoners when proven, is itself a fact in the case ; it is a circumstance tending in a greater or less degree to establish their innocence, and it is not to be put aside by the jury in order to ascertain if the other facts and circumstances considered by themselves do not estabish their .guilt beyond a reasonable doubt.”

This was declined, on the ground that it had been substantially given, and to this refusal, and to the charge as given, exception was made.

The restrictive part of the charge quoted is objected to as placing an unwarranted limit in the effect to be given by the jury to proof of good character. The authorities are to some extent divided on this point. That is, by some it is held that evidence of good character is only of value in doubtful cases,- and by others, that it is of broader significance, and is to be considered and weighed as any other fact in the case, and as a circumstance tending, in a greater or less degree, to establish the innocence of-the accused according to the hind or grade of character established. This latter seems the better doctrine and the one most generally accepted. Wharton, Crim. Ev., Sec. 67 and notes.

But when we analyze critically the charge given, we can find nothing that seriously conflicts with this view. The charge does not, as argued by counsel, restrict such evidence as being of value only in doubtful cases. There is no such inaccuracy in the language used as is calculated to mislead a jury ■, and above all it is not such an error, if conceded to be one, that its correction would of itself probably produce a different verdict from the one rendered.

It is not every irregularity in the proceeding, and every error in the instructions of the Judge, that suffices to set aside a verdict, and entitles an accused to another trial. If so, it might be reasonably asserted that few convictions would stand,- but the true rule is, that these irregularities must be of so grave a character as to strike at the very safeguards interposed by the law for the defense of the innocent, and errors so marked and flagrant as to create a belief in the judicial mind that, but for their commission, a different and more favorable result to the prisoner would have been reached.

As was well said by Mr. Justice Preston, in case of State vs. Brett, 6 An. 658 : The case has often occurred of great errors committed in the hurry trial, the trouble and real difficulties of a jury trial. But if they do not affect the just result, if substantial justice has been done, and the whole object of the law has triumphed, the Supreme Court would abuse and not aid the inferior courts, and justice itself, by seizing upon those errors, not to correct them, but without any reasonable motive or legal advantage to the public or individuals, to annul the proceedings of the inferior tribunals.”

There are other objections made to the charge of the Judge, found in the record, and assigned as error, but inasmuch as they were not made to the charge when delivered, and were omitted in the bills of exception taken to the charge at the time, under our repeated rulings they cannot now be considered. State vs. Curtis; State vs. Riculfi; State vs. Jake Sheard et al., 35 An., not reported.

4. There is nothing in the motion for a new trial save and except the alleged erroneous instructions of the Judge to the jury, which have already been considered.

We have gone over the entire record carefully and considerately, and we can find nothing therein sufficient in law to afford the accused relief.

The judgment and sentence appealed from are, therefore, affirmed with costs.

Bermudez, C. J., takes no part.


text:
    No. 1208.
    The State of Louisiana vs. Charles Sopher.
    Where three hundred names of jurors have heen put in the box from whioh the jury has been drawn for tlie first weeks of the term, it is not necessary to revise the list and put in more names to draw a.-jury for a later week of the same term.
    The list of jurors served on the prisoner need not be a copy of the proces verbal of the draw* ing. It is only needful that the list be complete and correct.
    The omission of the word “foreman ” from the signature on the back of an indictment is not fatal. It is sufficient that the foreman has signed his name to the finding of the jury, “a true bill,” without mentioning his capacity.
    The objection that a juror is an unnaturalized foreigner must be made as a challenge, when he is presented, and cannot be urged in arrest of judgment.
    APPEAL from tbe Twenty-first District Court, Parish of St. Martin.' Fontelieu, J.

      G. IT. Mouton and F. F. Perrodm, District Attorneys, for the State, Appellee. "

      Merchant & Fontelieu for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The defendant was convicted of murder by a qualified verdict, and was sentenced to hard labor for life.

1. He challeged the array because there were not three hundred names in the jury box when the commissioners proceeded to draw the jury. The court had lasted four weeks. There were three hundred names in the box when the jury was drawn for the court, 110 having been drawn, and the drawing seems to have been sufficient for three weeks. The defendant’s trial came on in the fourth week, and another drawing was made from the 190 names that remained.

That was done as it should have been. Drawings of juries are made for different and successive weeks to spare jurors a protracted attendance. The requisite number of names was in the box. The Act expressly requires that the juries for each week shall be drawn from the three hundred. Acts 1877, pp. 56-7.

2. Another objection was that the list furnished the prisoner was not a copy of thejproces verbal of the drawing. It is not disputed the list was correct, and that was what he needed.

3. A motion in arrest was made for that the indictment was not properly indorsed, the foreman of the grand j ary not having mentioned his capacity by adding the word foreman ” to his signature.

It is not vital that this should be done. The person whose name is indorsed on the bill after the words “ a true bill” was the foreman, and it is sufficient that he had signed his name to the finding of the grand jury without mentioning his capacity. State vs. Brown, 31 Vermont, 602; 1 Bishop Crim. Proc. §698.

4. Another ground in arrest is that one Guillot who served as a talisman is an unnaturalized foreigner.

The objection was made too late. An accused party cannot waive his objection to the competency of a juror, which he does by failing to make it when the juror is presented to him, take the chances of a verdict, and then avail himself of the incompetency of the juror in a motion in arrest. It was good cause for challenge. The defendant should have used it then if he desired to use it at all. State vs. Nolan, 13 Ann. 276; State vs. Bower, 26 Ann. 383.

5. A motion for a new trial then followed on the same grounds urged in arrest of judgment, and this additional: that the verdict of the jury was in part caused by the prevailing public sentiment in the community that crime was on the increase, and that in order to check it, it was necessary to convict the prisoner.

No more laudable purpose could animate jurors than the checking of crime. They are empanelled to find the fact of its commission, and having thus found in this case, the defendant must suffer the penalty.

Judgment affirmed.


author: Bermudez, C. J. Todd, J.

text:
    No. 1169.
    Jacob U. Payne vs. T. C. Anderson et al.
    A judgment, partly in favor of and partly against an appellant, will not be disturbed as affooting the appellee, where no amendment of the same is aslced. .
    A possessor in bad faith, is not entitled to remain in possession until the value claimed by him for improvements put upon the land, and which the former owner has been condemned to pay to him, has been reimbursed.
    APPEAL from the Thirteenth District Court, Parish of St! Landry, jHudspeth, J.

      H. L. Garland for Plaintiff and Appellant.

      F. F. Perrodm, O. W. DuBoy and F. G. Ulriclc for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action by a judgment creditor to annul a tax sale of his debtor’s property, and to subject the same to the payment of his claim. Both the judgment debtor and purchaser are made defendants.

The former, Mrs. Galligar, attacks the validity of the judgment, and claims return of money realized by execution under it. She joins the plaintiff in asking the nullity of the tax sale of her property.

The other defendant, Anderson, likewise attacks the judgment, charges the extinction of the debt, and the legality of his tax title. In the event that the judgment be maintained and that his title be annulled—assuming the attitude of a purchaser in good faith—he asks to be reimbursed the; price paid at the sale, together with accrued penalties, expenses incurred, the value of improvements put by him upon the land, and the amount of taxes since paid. He finally claims the right of detention and possession of the property until the reimbursement of those amounts, which, he says, should have been and were not previously tendered, as an essential condition precedent for recovery.

In bar to those counter claims, the plaintiff pleads res judicata and prescription.

The. case was tried by a jury, who rendered a verdict non-suiting plaintiff, annulling the tax sale and allowing Anderson half the amount paid by him for improving the Benfield place.

The judgment of the court was in furtherance of the verdict, except that it condemned Mrs. Galligar to pay the amount and maintained Anderson in possession until payment.

From this judgment the plaintiff, Payne, alone appeals. Its amendment is not asked by either of the appellees.

The only question to be determined is, therefore, simply whether the judgment is or not correct, in so far as it affects the plaintiff.

It is adverse to him in these respects only :

1. That it non-suits him.

2. That it maintains Anderson in possession of the property until reimbursement to him, by Mrs. G-alligar, of the amount which the jury allowed him.

I.

The plaintiff has made out his case. The judgment upon which lie founds his action is final and executory. It was once affirmed by this Court, on appeal by the plaintiff in 1874, contradictorily with the defendant as appellee. 26 An. 596. The appeal subsequently taken from it by Mrs. Galligar was dismissed. So that its finality, irrevocability and binding effect on all the parties to it, and even on Anderson, who does not seek its nullity, is beyond peradventure. It can therefore well serve as a basis for the present action in nullity of the tax sale of property of the judgment debtor, Mrs. Galligar.

This view of the case dispenses with a ruling on the exceptions of res judicata and of prescription, set up by tiie intervenor in bar to the attack made by Mrs. Galligar on the judgment. It also renders unnecessary an opinion on the question of reimbursement raised by the latter.

The next defense is, that the judgment is extinguished, if credited with the various amounts realized by writs and otherwise, by virtue of it. We find those different sums to c'onsist as follows: $1,000, $2,488.26, $1,134.30, $118.82 and $8.70, and to aggregate $4,700.08, and consider that tiie same should go in deduction of the amounts allowed by the judgment.

II.

The judgment appealed from, in so far as it authorizes a recovery by Anderson from Mrs. Galligar, of one-half of the amount paid by him on the Benfield tract of land, referred to in plaintiff’s petition, is not before us for review. It does not purport to affect the intervenor, and is not asked to be amended. By not allowing a recovery by Anderson from the intervenor, it has effectually denied him the same. So that the intervenor cannot now be condemned to pay a copper to Anderson.

The judgment, in so far as it maintains possession of the property by Anderson, until reimbursement to him of that amount decreed to be due him by Mrs. Galligar, cannot be justified.

Its consideration consists in improvements put up by Anderson on the land above named, and which are valued by him at $966. Under the circumstances developed, Anderson cannot be considered as a possessor in good faith.

At the date of the pretended tax sale, which must be considered as definitively annulled, the property was to Anderson’s knowledge encumbered in favor of Payne. When he became the adjudicatee of it, he knew that he could acquire no better rights than were possessed by Mrs. Galligar. Had she improved the land in the manner Anderson did, she would not have been entitled to recover, as against her mortgage creditor, the value of the improvements. What she could not do, her vendee cannot accomplish. If so, why should Anderson be permitted, to the injury of Payne, to remain in possession of the property until reimbursement to him by Mrs. Galligar of the value of the improvements? We are at a loss to perceive how this could be justified.

It is, therefore, ordered and decreed that the judgment appealed from, in so far as it non-suits the plaintiff and maintains Anderson in possession until the amount allowed for the improvements, and which Mrs. Galligar is condemned to pay him, is reimbursed him, be reversed, and that the verdict of the jury, authorizing such judgment to that extent, be set aside.

And it is now ordered, adjudged and decreed in lieu, that the plaintiff, J. U. Payne, be recognized to be the judgment creditor of Mrs. Galligar, as alleged in his petition ; that the property, the tax sale of which was annulled, be declared subject to the mortgage claimed by the plaintiff; that the same be seized and sold according to law to satisfy the claim of the plaintiff, and that the demand of T. C. Anderson for possession, until payment to him, be rejected with costs.

It is further ordered and decreed that the verdiet and judgment thereon otherwise remain undisturbed, defendants to pay costs in both Courts.

On Application for Rehearing.

It is claimed on the application for a rehearing that, while, in the reasons of the Court, it is stated that plaintiff’s judgment should be credited with the amounts realized by execution and otherwise, by virtue of it, still, in the decree this was not done. The complaint is well founded.

It is besides urged, that rights to further credits should have been reserved. Either the same have or have not been claimed. If they have, they were not allowed. If they were not, they cannot be pressed, the rule being that, where a party asks less than is due him, he abandons his claim to the surplus.

It is, therefore, ordered aDd adjudged that our previous decree be amended, so as to credit plaintiff’s judgment with the forty-seven hundred dollars, $4700, mentioned in the opinion, and that thus altered, said decree remain undisturbed and become final.

Fenner, J., recused.

Concurring Opinion.

Todd, J.

I concur in the decree rendered. I am not, however, prepared to say that a third possessor is precluded, even where he is a possessor in good faith, from claiming reimbursement for useful improvements. I think he can do so, but in this case I am satisfied that Anderson was not a possessor in good faith, and hence, was not entitled to the reimbursement claimed.


author: Poems, J. ■

text:
    No. 1200.
    The State of Louisiana ex rel. Frank A. Lee & Co. vs. Allen Jumel, Auditor, and E. A. Burke, Treasurer.
    An appeal made returnable on appellant's own motion and suggestion, at a time and plaoo other than those provided for by law, will be dismissed by the Court ox proprio motu. This rule applies equally in civil oases to the State, or to any of its officers appealing in their official capacities.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburne, J.

      Bead & Qoodale for Relators and Appellees.

      J. O. Egan, Attorney General, for Respondents and Appellants.
   The opiuion of the Court was delivered by

Poems, J. ■

The Auditor has taken this appeal from the judgment of the District Court, compelling him by mandamus to provide for the payment of certain coupons of consolidated bonds of the State, out of moneys now in the treasury to the credit of the interest fund.

Although the appeals from the Parish of East Baton Rouge are by law made returnable at New Orleans on the second Monday of February in each year, this appeal is made returnable at Opelousas on the •first Monday of July. (Act No. 45, Extra Session of 1870.)

The order of appeal was made to conform with appellants’ own suggestion, as shown by the following extract of his motion : “ Hence, he prays that he, in his official capacity as auditor, be granted a devolutive appeal, returnable on the first Monday of July, 1883, at the meeting of the Supreme Court in Opelousas, St. Landry Parish.” * •

(Signed) “Buckner, Atty.”

Now, it is elementary in our practice that when an improper return day is suggested by the appellant, the error is attributable to his own fault, and that his appeal canuot be maintained. Wooton vs. LeBlanc, 82 An. 692. State of Louisiana vs. Charles Clinton, 27 An. 540; The Citizens’ Bank of Louisiana vs. Board of Liquidation, Ib. 542.

We know of no law, and we have been referred to none, which authorizes a different return day for the appeals in civil cases taken by the auditor or by the State itself, from that provided by law for all other litigants.

The very object of the law maker, in fixing a special place and a particular day for the returns of appeals from every parish in the State, is to obtain regularity and certainty in the disposition of appeals, and to facilitate the administration of justice by the Supreme Court.

The confusion which would follow the practice of allowing appellants to select at their option the time and place of returning their appeals can be easily conceived.

In eases involving great public interests, and with the consent of parties, this Court has frequently sanctioned the transfer, and has disposed of appeals at a time and place different from those fixed by law, but this line of conduct cannot be construed as an approval of the course of appellants, who seek and attempt on their motion, as a matter of right, to make their appeals returnable in a manner different from the mode pointed out by law.

This appeal is, therefore, dismissed at appellants’ costs.

Bermudez, C. J., and Todd, J., dissent.


text:
    No. 1198.
    The State of Louisiana ex rel. Frank A. Lee & Co. vs. Allen Jumel, Auditor, et al.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburne, J.

      Bead & Goodale for Relators and'Appellees.

      J. G. Egan, Attorney General, for Respondents and Appellants.
   The opinion of the Court was delivered by

Poché, J.

This appeal comes under precisely the same circumstances disclosed in the case between the same parties, No. 1200, this day disposed, and for the reasons given in that case, it must share the same fate.

Appeal dismissed.

Bermudez, C. J., and Todd, J., dissent.


author: Bermüdez, C. J.

text:
    No. 1187.
    John Baldwin, Sr. vs. Hypolite Bellocq et al.
    An injunction prohibiting the dilapidation of valuable real estate, and the construction of buildings thereon, although the property be in the possession of the party enjoined, should not be dissolved on a bond for an insignificant amount.
    Where circumstances allow, the injunction should not be dissolved unless contradictorily.
    APPEAL from the Nineteenth District Court, Parish of St. Mary. Goode, J.

      M. J. Foster and G. B. Bhepherd for Plaintiff and Appellant.

      I). Gaffery for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermüdez, C. J.

This is an appeal from an ex-parte order dissolving, in part, an injunction on defendants furnishing bond. The complaint is, that the dissolution will work an irreparable injury to the plaintiff, and that the bond is not commensurate with the injury which might be sustained.

It is immaterial upon what grounds the injunction was asked. It is sufficient to state that it was sought by one claiming the ownership of lands, alleged to be worth between five or six thousand dollars, in the hands of another under color of title, and it issued prohibiting him from entering upon and committing any depredations on said land . from pasturing cattle and horses thereon ; from using any building as a slaughterhouse, and from cutting aud removing wood from said land.

After a fruitless attempt to have the injunction dissolved on the face of the papers, the defendants, on an ex-parte motion, obtained the dissolution of the injunction, “ except in the matter of cutting timber on the premises in question,'’ on furnishing bond and security in the sum of fifty dollars.

For the purposes of the matter now before the Court it must be assumed that the injunction properly issued, and that the District Judge correctly declined to dissolve it on the face of the papers. The only question presented for solution is, whether the lower court rightfully dissolved that injunction in part on the bond stated.

It is clear that under the very averments of the petition, the defendants were in possession under color of title, and that the object of the injunction was to prevent them from the use and enjoyment consequent upon such possession.

The law, it is true, favors the quieting of parties in possession, pen dente lite, on their furnishing a satisfactory bond for the return of the property in its original integrity, or contingently, for damages. It is upon that theory that even intervenors, in whose possession property is seized, are permitted to have the seizure released on furnishing bond and security. Such releases on bond should, however, be granted only when clearly allowed.

In cases like the present one the law distinctly provides, that whenever the act prohibited by the injunction is not such as may work ,an irreparable injury to the plaintiff, the Court may, in their discretion, dissolve the same, provided the defendant execute his obligation with good and solvent security, conditioned, etc. C. P. 307.

By the partial dissolution granted, the defendants are relieved from the injunction in so far as it prohibits them from committing depredations, building on the land and, hence, are virtually authorized, if they choose, to dilapidate the property in dispute and put up buildings on the same, during the continuance of the suit, on furnishing a mere bond for fifty dollars.

We deem it unnecessary to express any opinion as to whether or not such acts of the defendants, if committed, would or not cause plaintiff an injury, not reparable in dollars and cents j but we feel no hesitation in saying, that the bond demanded to answer for the same is by far insufficient to indemnify the plaintiff in ease the defendants were to commit the apprehended acts charged against them, with which it bears no proportion.

It is preferable that the determination of the question of reparability vel non of injury sustained and of the increase of the bond to a proper amount be referred to the District Judge for decision, after contradictory hearing of the parties in interest.

There is no doubt that a Judge has the right and power, on an ex-parte application in a case of urgency, to dissolve an inj unction on bond, but in such instances, the dissolution being allowed at the risk of the mover, will be rescinded on a proper showing of error, either in the lower or appellate court, and the matter reinstated, to be proceeded with contradictorily. It is decidedly preferable that such course be pursued, where circumstances will allow.

Tiie partial release of the injunction, on the bond of fifty dollars, was clearly erroneous in this case.

It is, therefore, ordered and decreed that the judgment appealed from be reversed, and that the motion of defendants to dissolve the injunction on bond be remanded to the lower court for further proceedings, according to the views herein expressed and according to law.


text:
    No. 1196.
    Estate of Louisa Prudhomme.
    Where the inscription of a mortgage by authentic act contains a copy of all portions of the act upon which the mortgage is based, it complies with the requirement of Art. 3348 Rev. C. C., although it be not a copy of the entire act.
    APPEAL from the Thirteenth District Court, Parish of St. Landry, Hudspeth, J.

      Lewis & Bro. for Appellants.

      John N. Ogden for Appellees.
   The opinion of the Court was delivered by

Fenner, J.

The sole question presented for our determination on the appeal is, whether the following inscription in the book of mortgages is sufficient to give effect to the mortgage against third persons:

“ State of Louisiana,

Parish of St. Landry.

“By an act of sale passed .May 31st, 1878, before M. D. ICavanagh, notary public, duly commissioned and qualified in and for the Parish of St. Landry, State of Louisiana, Mary C. Beauchamp, wife of James 0. Chachere, and Edward A. Beauchamp, a minor duly emancipated by decree of court, sold to Mrs. Louisa Prudhomme, wife of William Curley, all residents of the parish and State, a certain lot or square of ground situated in the Town of Washington, in the Parish of St. Landry, said square being known as No. 44 on a map of the town on file in the office of the recorder of the Parish of St. Landry, and bounded North by Michael street, South by Garrigues street, East by Washington street and West by Main street, together with all the buildings and improvements thereon or thereto appertaining, being the same, property purchased by Charles II. Beauchamp, by act before P. D. Hardy, on record in recorder’s office of St. Landry.

“ The consideration of this saléis the sum and price of seven hundred and -fifty dollars, lawful money of the United States, for which said sum the said purchaser has this day executed her two promissory notes for the sum of $375 each, one of said notes payable January 1st, 1880, bearing interest at the rate of eight per cent, per annum from date until paid, said notes made payable to her own order and by lier indorsed in blank. A special mortgage with vendor’s privilege is hereby reserved on said property to secure the payment of said notes with interest, as well as ten per cent, attorney’s fees in case any of said notes have to be collected by suit. See act recorded in full in alienation book F No. 2, at pages 76, 77 and 78.”

The contention of appellant is, that nothing except the inscription of a literal and complete copy of tlie entire authentic act on which the mortgage is based will suffice.

He quotes the provisions of Art. 3342, Rev. C. C., declaring that mortgages are only allowed to prejudice third persons when they have been publicly inscribed on records kept for that purpose and in the manner hereafter directed,” and of Art. 3348, that if the instrument on which the mortgage or privilege is based be an authentic act, a copy thereof shall be recorded.”

He calls attention to the fact that this last provision appears for the first time in the Code of 1870, and claims that,' therefore, the decisions in 5 An. 225, 6 An. 242 and 349, and even in 25 An. 637, cannot control its interpretation or effect, for the reason that the three first were decided prior to its adoption, and the last applies to the effect of an inscription made prior thereto.

What effect the argument may have against mere memoranda, abstracts and other statements of the contents of mortgage acts, which might be sanctioned as sufficient inscriptions under the prior law and under the decisions quoted, we will not now determine.

We content ourselves with holding that the inscription here presented is substantially, and to all intents and purposes, within the purpose and meaning of the law, a copy of the authentic act of mortgage. It is not a full and complete copy of the whole of the act,, but we have carefully compared it with the act, and find it to be an exact and literal copy of all portions of the act upon which, in the language of the law, “ the mortgage or privilege is based.” Authentic acts may, and frequently do, contain an immense amount of matter utterly irrelevant to the subject of a mortgage upon a particular piece of property established therein. For instance, the act might recite a sale of numerous pieces of property, all described at length and all paid for in cash, except a single one for the price of which a mortgage was reserved, and it might contain lengthy contracts and arrangements about other matters between the parties.

Would it be supposed that the law maker required that a complete copy embodying such irrelevant matter should be inscribed in order to give notice of a mortgage upon a particular piece of property? Common sense forbids.

When a copy of those portions of the act bearing upon, and creating the mortgage; is inscribed, we must hold that the law is essentially complied with. Such is manifestly the case here, and to destroy the'effect of such an inscription would be to stultify the makers and the interpreters of the law.

Judgment affirmed.


text:
    No. 1201.
    Anna F. Offutt, Wife, vs. C. C. Duson, Sheriff, et al.
    "Where certain property is seized, under a judgment against a surviving widow, belonging to the community between her and her deceased husband, one of the heirs of the deceased cannot enjoin the sale beyond his interest in the property, although the succession of the deceased may he under administration and the community unsettled.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.
    F. F. Perrodin, G. W. JkiBoy and Albert Voorhies for Plaintiff and Appellee:
    1. An heir who owns in indivisión with Ms co-heirs, and the surviving widow in community, has a right to enjoin the sale of any specific part óf tho property of the estate in comma, nity, for an individual debt of one of the parties. Code of Practice, Art. 296.
    2. The interest of an heir in an unsettled succession is residuary, and so is the interest of the surviving widow in community? and can only he ascertained when all the debts have been paid, and the estate is liquidated. 31 An. 493.

      H. L. Garland for Defendants and Appellants.
   The opinion of the Court was delivered by

Todd, J.

The sheriff, C. C. Duson, having seized certain immovables described in the petition, under a judgment against Mrs. Anna E. Hardy* widow of Nathaniel Offutt, deceased, and as her property, the plaintiff, who is a daughter of the said Offut, the issue of his marriage with his said surviving widow, enjoins the execution of the writ. The injunction is claimed on the ground that the property seized does not belong to the judgment debtor but to the community between her deceased father and her mother—having been acquired during their marriage—and that the succession of her father is still under administration, and that no specific property belonging to this unsettled community can be seized before the community and the succession are liquidated, and asserts her residuary interest as an heir of the deceased, and her rights in said succession, to prevent the sale of the property.

The answer to the injunction is the general issue involving the right of the plaintiff to stay the sale of tho property seized.

The evidence is voluminous and many legal questions are elaborately discussed, but it seems to us that the real question upon which the determination of the case rests is of easy solution. If the property seized does not belong in this instance to the judgment debtor, neither such debtor nor any one for her has the right to complain. If it does belong to her, no one but herself could resist its sale for any cause. If it is the joint property of this debtor and of the plaintiff and others, it would seem that the sale of the entire property could only be prevented by the joint action of all those interested in it, and that no one of those interested could alone and unauthorized champion the rights of the others and proceed in their behalf.

Suppose, for instance, the specific property seized could not be legally sold, because of its relation to the unsettled community and succession, as contended for by the plaintiff’s counsel, still it is hard to see how plaintiff could be affected by such illegal sale, even if it could affect the rights of any one interested in the property. And even if a valid sale of it could be made under the seizure, it could not divest any interest of plaintiff therein, and beyond the extent of that interest, it is difficult to see how its sale could injure or affect her. If her interest in the property is reserved from the sale and the residue sold, the purchaser could not, of course, acquire any other or greater right than the judgment debtor possessed, and if such right is unliquidated and undetermined, on account of the unsettled condition of the community and the succession, and liable to be absorbed ultimately by the claims of the plaintiff, as asserted, the purchaser would take it subject to such condition and contingency.

Plaintiff’s condition, with respect to the part alienated, would be neither better nor worse. All the interest she now has in the property would remain tocher, and all her present rights against the other parties interested would continue intact; the only change being that the purchaser of the judgment debtor’s interest would occupy the same relation to the plaintiff that such debtor does, and if this property in fact forms part of a succession now under actual administration, its sale under a personal judgment against the administratrix could only be made subject to the rights, obligations and tenure of the administratrix ; but this is matter that we could only deal with were the administratrix before us opposing the sale, which she is not, either in her personal or representative capacity.

To ascertain what the interest of the plaintiff is, the whole property being community upon its dissolution, the widow was entitled to one-half as owner, and the usufruct of the other half during her widowhood. Offutt left three heirs, including the plaintiff, each of whom inherited one-third of this remaining half, subject to their mother’s usufruct, or one-sixth of the whole.

The widow acquired the interest of one of the heirs now dead, which would make her the owner of two-thirds of the property, and the two remaining heirs of one-third. This interest respectively of the widow and the heirs extended to and over the whole property, and each and every portion thereof, subject, of course, to the payment of the community debts and succession charges, and, in this sense and this sense only, may such interest be termed residuary.

Plaintiff’s inj unction should, therefore, be maintained to the extent of' one undivided sixth of the property seized, and beyond that dissolved.

We have been referred to the case of Cestac vs. Florence as supporting the pretensions of the plaintiff. We have examined the case carefully j it is sufficient to say that it differs in some essential respects from the instant one.

Plaintiff having maintained her injunction in part, cannot be condemned in damages ; she is entitled also to the costs of the lower court.

It is, therefore, ordered, adjudged and decreed that the judgment of the District Court be amended by maintaining and perpetuating the injunction of the plaintiff to the extent of one undivided sixth of the property seized, and beyond this, that the injunction be dissolved, defendants to pay costs of the lower court, and plaintiff and appellee costs of appeal.


author: Bermudez, C. J.

text:
    No. 1195.
    Henry Materne vs. Michel Lion et al.

      A release bond, furnished to set aside a sequestration, in furtherance of an order made on the petition of one claiming to be the agent of the plaintiffs, and represented to be such by the counsel of the latter, will be considered as the deed of the plaintiff, when signed by such party in their behalf.
    In default of a delivery of the property released on such bond, after judgment declaring it to belong to the defendant, the plaintiff, as principals, and their surety, will be held responsible for the value of the same.
    A PPEAL from the Twenty-first District Court, Parish of St. Martin; Fontelieu, J.

      Felix Voorhies for Plaintiff and Appellee.

      Fchvard Simon for Defendants and Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action against parties represented as being the principals and surety on a bond furnished for the release of a quantity of logs sequestered in a suit brought in the name of the former.

The defense is, substantially, that the party who signed the bond in the names of the principals was not authorized to do so, and hence, that the bond is a nullity, not only as to the principals, but also as to the surety.

The lower court having allowed one thousand dollars as the valué of the logs, the defendants have appealed. The plaintiff answered, praying for an amendment by enlarging the judgment to fifteen hundred dollars.

The evidence shows, that Mrs. Laloire and Michel Lion, claiming to be the owners of certain 150 logs, caused them to be sequestered in a suit against Henry Materno ; that subsequently, on the petition of L. E. Laloire, representing himself as the agent of his wife and of M. Lion, the court dissolved the sequestration on a bond for one thousand dollars. Laloire signed the bond as the agent of both, and Jules Oger served as surety therein. Thereupon, L. E. Laloire to ok possession of the logs and subsequently sold them. ■ In due course judgment was rendered, recognizing ownership of the property in the defendant and entitling him to a writ of possession to recover the same.

It is expressly admitted that the writ having issued, Laloire, agent, and Oger, surety, answered that the logs were not in their possession and they did not know what had become of them.

The counsel who filed the sequestration suit in the name of Mrs. Laloire and of Mr. Lion are the same who represented Laloire as .the agent of both in the petition for authority to bond. Their authority has never been questioned in that, nor is it in the present suit.

.The judgment settling the question of ownership was rendered and signed in October, 1881. Having become sovereign by the lapse of time, it absolutely concludes the parties thereto.

The objections'of want of authority in Laloire, urged by Mrs. Laloire, and of M. Lion, to the validity and binding effect of the proceedings and of the judgment are entitled to no weight. Mrs. Laloire made the affidavit for the sequestration at foot of the petition presented in her name, with the assistance of her husband, who specially authorized her in writing in the premises. It is in proof that Mrs. Laloire knew of the release of the sale, and received the proceeds, which she applied, to some extent, at least, towards improving property individually belonging to her. The suit was brought, the affidavit made, and the bond signed by Laloire, as Lion’s agent under a special power, copy of which was properly admitted in evidence, after fruitless attempts to compel production of the original by the principal.

The petition for bonding the sequestered property, having been presented by Laloire, as the-agent of both his wife and Lion, in a case in which they were legally in court, and his authority to file the same and to sign the forthcoming bond in the same suit not having been disputed, and the litigation being closed by a final judgment which binds conclusively all the parties thereto, the inference is, that his authority cannot, at this late hour, be drawn in question, and that the defendants Mrs. Laloire and Lion must be held to be the principalsin the delivery bond, which even otherwise would be binding on Oger, the security, who cannot dispute the agent’s authority. '

We have considered the evidence touching the value of the logs, and think that the District Judge has correctly fixed it at one thousand dollars.

Judgment affirmed.


text:
    No. 1179.
    John C. Munday vs. J. J. Lyons et al.
    The test of jurisdiction in an injunction suit, where tlie property seized belongs to the judgment debtor, is the amount of the judgment injoined.

      Aliter if the property of another is seized, in which case the value of the property determined the jurisdiction.
    APPEAL from the Fourteenth District Court, Parish of Calcasieu. Bead, J.

      A. B. Mitchell for Plaintiff and Appellant.

      G. A. JPournet for Defendants and Appellees.
   The opinion of the Court was delivered by

Manning, J.

One Tufts obtained three judgments against the plaintiff Munday in a Justice’s Court of Calcasieu, aggregating two hundred and three dollars, and issued executions thereon, which were levied upon a house and lot belonging to Munday. He injoined the sale alleging the value of the seized property to be eighteen hundred dollars. Upon trial, his injunction was dissolved, and he appeals.

The defendants move to dismiss for the reason that the sum involved is less than the appealable amount, and we are therefore without jurisdiction. The motion must prevail.

It is well settled that the test of our jurisdiction is the amount of the judgment, the execution of which is injoined, where the property seized belongs to the judgment debtor. Aliter if the property seized belongs to third parties. Bruneau vs. Haughton, 16 Ann. 47; Gayarre vs. Hays, 21 Ann. 307; Francisco vs. Gauthier, decided in March, 1883, and not yet reported.

Answering the appeal, the defendant Tufts prays for damages, which we do not give since we dismiss without examining the merits of the injunction whether rightfully obtained or not.

The appeal is dismissed.


text:
    No. 1172.
    The State of Louisiana vs. James Anderson.
    "Where the record of a criminal case contains nothing upon which the Supreme Court can act, the judgment is necessarily affirmed.
    A motion for a new trial on the ground that evidence, of which the defendant knew, was more important than he had supposed, was property overruled.
    APPEAL from the Twenty-third District Court, Parish of Iberville. Pope, J.

      JS. B. Talbot, District Attorney, for the State, Appellee.

      Chas. O. Lauve for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

The defendant was convicted of larceny and was sentenced to hard labor for twelvemonths. There is neither any bill of exception nor assignment of error in the record, nor any brief for the defendant or other appearance made for him here.

A motion for a new trial was made below on the ground that the party convicted had discovered since the trial, not new evidence, but the importance of that evidence, the existence of which he knew before. The motion was overruled, and no complaint of the ruling was made.

This appeal is one of scores that are brought before us for no conceivable purpose but to delay the execution of the sentence, and entail upon the parish the expense of the prisoner’s confinement in the interim. The permission to appeal in criminal cases without incurring costs, and to have the appeal heard promptly, is a gracious concession to the criminal classes made from tender consideration for life and liberty, but it has been latterly so much abused to the detriment of the orderly and tax paying class, who have to foot the bills, that it will doubtless be thought wise to require the lower Judge’s certificate that there are questions that require review, or that there is something in the record that can be reviewed, before he grants the appeal.

Judgment affirmed.


author: .. Poché, J.

text:
    No. 1199.
    The State of Louisiana ex rel. H. Newgass vs. Allen Jumel, Auditor, et al.
    APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Sherburne, J.

      Mead & Goodale for Relator and Appellee.

      J. G. Egan, Attorney General, for Respondents and Appellants.
   Tlie opinion of the Court was delivered by

.. Poché, J.

For tlie reasons given for tlie dismissal of the appeal in the case of the State ex rel. Frank A. Lee & Co. vs. Allen Jumel, Auditor, and E. A. Burke, Treasurer, No. 1200, this day disposed of, this appeal is dismissed.

Bermudez, C. J., dissents.

Todd, J., dissents.


text:
    No. 1205.
    B. H. Flaspoller vs. Blanche Sittig, Wife, et al.
    1 After a cession of property made by an insolvent to his creditors, who accept the surrender and elect a syndic, the insolvent has no right to sue for damages sustained previous to the cession, in consequence of the wrongful issue of an attachment. A right to such damages, if really suffered, is property and passes to the creditors of the surrender. The syndic alone has a right to sue for and recover the same. An exception to such right of action by the insolvent, filed by the attaching creditor, is well founded and should be sustained.
    APPEAL from the Thirteenth District Court, Parish of St. Landry. Hudspeth, J.

      Gil & Perrault and K. Haillio for Plaintiff and Appellee.

      L. J. Tansey and John N. Ogden for Defendants and Appellants.
   The opinion of the Court was'delivered by

Bermudez, C. J.


text:
    No. 102.
    Succession of James Marks, Jr. Rebecca L. Marks vs. Mathilda R. Marks, Executrix.
    The légitime of a father or mother, or both, in the testamentary succession of a child deceased without posterity, is one-third and not one-fourth, and this to the exclusion of "brothers and sisters. . The disposable portion in such a case being two-thirds only. Cole vs. Cole, 7 2ST. S. 414, overruled.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J..

      :E. J. Looney for Plaintiff and Appellant.

      Land <& Land for Defendant and Appellee :
    W hen the deceased leaves a father or mother, he or she is forced heir for the onedfourth of the estate. And the child may dispose of three-fourths by last will and testament. Cole vs. Cole, 7 3ST. S. 414; Theall vs. Theall, 11 La. 429; JBarbet vs. Roth, 14 An. 381. >

      This has been a rule of inheritance in Louisiana since 1829, and the doctrine of stare decisis applies.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action by a legitimate mother for her légitime from the testamentary succession of her son, who has died leaving brothers and sisters and a wife, instituting the latter his universal legatee. The mother claims that legitime to be one-third of the estate. The defense is, that it is one-fourth and no more.

The District Judge, dealing with the question as res nova, thought that the légitime should be one-third, but reluctantly yielding to the doubtful authority of a ruling made more than half a century ago, rendered judgment for one-fourth only.

It is not correct to say that it is established by the jurisprudence of this State that the légitime in such a case is one-fourth.

The only case in which the question was really presented, is that of Cole vs. Cole, 7 N. S. 414. It is truethat the Court there decided that the légitime of the only immediate ascendant, the mother, was one-fourth ; but the mere reading of the opinion shows that the Court, composed of three Judges, two only of whom participated in the decision of the cause, did not grasp and solve the difficulty as might have been done. Far from reconciling three Articles of the Code, the Court assumes to eliminate from it the last of them, because it was thought incompatible with the previous ones, although it was couched in negative terms and was one of public order and good morals. In its inability to cause the two Articles to operate harmoniously, the Court declares: li we cannot untie the knot: we must cut it.” The cutting resulted in the excision from the Code of the provisions of the last enacted or adopted Article on-the subject of the légitime of father or mother, or both. The reason is unsatisfactory and not binding.

It cannot be pretended that the ruling then made was ever subsequently followed.

In the Theall case, 11 L. 431, decided eight years later, it is not mentioned' or even alluded to. There was no occasion for it. The Court allowed one-fourth to the mother, not because she was not entitled to one-third, but because she had claimed one-fourth only. The contention was as to the obligation of the mother of opting between a legacy and the légitime, which she herself had represented as being one-fourth.

In the Grover case, 7 An. 173, the third could not have been allowed, for the obvious reason that the child having died intestate, her succession was a legal one.

In the Barbet case, 14 An. 381, the mother sued to reduce the universal legacy of her daughter to the latter’s husband, to the disposable portion, which the Court declared to be two-thirds, allowing the mother one-third as her legitime.

For declining to apply the ruling in the Cole cage, the Court, through its organ, declared that “ the case must be examined in refer-' ence to the facts on which it was decided.”

Mr. Justice Buchanan-, in his lucid, considerate, and well reasoned concurring opinion takes the proper view of the law governing in such' cases. He regards “the doctrine enunciated in the Cole case as con-" trary to Article 1481 of the Code ” of 1825, and unequivocally declares

“ There is a very simple and obvious way of reconciling Articles 899' and 900 with Article 1481 of the Code, which is to consider the first as a statute of distribution of intestate successions, the second, a statute of distributions in successions testamentary. One is an allotment made of a man’s estate, when he has not chosen to make any allotment himself. The other, a restriction upon the disposing power of a man over his own property by testament. The doctrine of Cole, if adhered to, would expungé Article 1481 from the Code. The doctrine is substantially as follows : Article 1481 is irreconcilable with Articles 899 and 900; therefore, it must yield to those'Articles, and consequently the légitimc of a father or mother of a decedent, who leaves a brother or brothers is, in no case, more than oné-fourth of the succession.

“Now, besides the fundamental error in the premises, the want of incompatibility of the Articles, the conclusion is erroneous, even if the premises were correct; for it is a rule of interpretation,' that, when two Articles of the Code cannot be reconciled, the last in order and highest in number, prevails over the other.”

That reasoning of the learned Justice is unanswerable.

, But, besides, it can very plausibly be said, that the philosophy, the. policy of the law, is adverse to the announcement in the Cole case. The reason for which the law allows one-fourth only to the father.or, mother, in an intestate, succession, is that, what remains thereafter accrues to the collateral heirs of deceased, who the law presumes will provide more amply for the father or mother, should the fourth prove insufficient.

, Such is not the case however in testamentary successions, in which the testator undertakes to derogate from the disposition which the law; would have made of 1ns estate at bis death, iu the absence of a will, and substitute his will thereto. In the apprehension that the testator might dispose of his property in favor of a stranger, who would not have for the mother - or father the same kindly feeling which other children, by nature, would have, the law fixes that position at one-third instead of one-fourth.

- There can be no possible escape from the operation of Article 1481, now Article 1494, which unequivocally reads in negative terms :

“ Donations inter vivos, or mortis causa, cannot exceed two-thirds of the property, if the disposer, having no children, leave a father, mother or both.”

It may be that the law giver might, have provided more amply in favor of both, and that the omission is to be deplored ; but with that we have nothing to do. We can ouly say that he has well done by in-, creasing the share of father or mother to one-third in testamentary, 1-rom one-fourth in intestate successions.

. This construction results in the occisión of a lurking lusns enrice, in the undoing of the knot, the reconciliation of important Articles of the Code to which violence had unnecessarily been done, the termination of an abnormal condition of things, and the formal retention in that main body of our laws of a wise and salutary provision which the decision in the Cole case had without warrant unmercifully expunged from it.

The judgment of the District Court recognized plaintiff as a'forced heir, but did not allow her the full quantum to which she is entitled. It must be amended.

It is, therefore, ordered and decreed that the judgment appealed from be amended by striking therefrom the word “fourth ” and substituting thereto the word “ third," and that thus amended, it he affirmed with costs in both Courts.


author: Poci-nS, J.

text:
    No. 101.
    John R. Jones et al. vs. Samuel P. Raines, Sheriff and Tax Collector.
    Sawmills are not manufactures within the moaning of the provisions of Article 207 of fcho Constitution, and are-therefore not exempt from, taxation.
    APPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J.
    " Jaelc & Dismulces and Alexander <& Blanchard for Plaintiffs and Appellants:
    1. Article 207 of the Constitution of 1879, exempts from taxation and license, for a period of ten years, “the capital, machinery and other property employed in the manufacture of ***** agricultural implements, furniture, and other articles of wood.”
    Webster defines thp word manufacture, as “ the operation of reducing raw materials of any kind into a form suitable for use.” It is defined by Worcester, as “the process of making anything by art, or of reducing material into a form fit for use.”
    To convert trees and logs into marketable lumber is to manufacture it, hence a sawmill and its appurtenances, where more than five bands are employed, is exempt from taxation.
    2. This Court, in City of New Orleans vs. Ernst &. Co , 35 An., recently held a rice mill to be a manufactory. Every reason given in that case, applies as forcibly to a sawmill.
    3. The last U. S- Bankrupt A.ct provided for the involuntary bankruptcy of “ bankers, brokers, merchants, traders, and manufacturers.” Under this clause of that Act, proprietors of sawmills were held to be manufacturers. Bump’s Bankruptcy, p. 411, cases cited.
    4 If there were any doubts on the point, the official Journal of the Convention shows, that it was the clearly expressed intention of the framers of the Constitution that sawmills should be inoluded in the list of exempt manufacturers. See official Journal of Constitutional Convention of 1879, pp. 211, 212, 323, 324.

      D. 0. Scarborough, District Attorney, for Defendant and Appellee:
    All property is primarily liable to taxation, and the power to tax is never presumed to have been withheld except by the clear letter of the law, and all reasonable construction will be used against rather than in favor of exemption. 34 An. 596; 34 An. 574, 954; 33 An. 622; Cooley on Taxation, pp. 146, 55, 198.
    Only such manufactories were exempted from taxation, under Article 207 of the Constitution, as were engaged in the manufacture of finished articles, such as agricultural implements and furniture, as these are the examples given by which we are to interpret their moan- ,, ing. See Art. 207 of Constitution of 1879.
   - The opinion of tlie Court was delivered by

Poci-nS, J.

Plaintiffs prosecute this appeal from a judgment denying the exemption from taxation of their sawmill, in which more than five hands are employed. The exemption is claimed under that provision of Article 207 of the Constitution, which reads as follows:

“ There shall also be exempt from taxation and license for a period of ten years from the adoption of this Constitution, the capital, machinery and other property employed in the manufacture of textile fabrics, leather, shoes, harness, saddlery, bats, flour, machinery, agricultural implements, and furniture and other articles of wood, marble or stone, soap, stationery, ink and paper, boatbuilding and chocolate; pyovided that no less than five hands are employed in any one factory.”

The question is, therefore, whether a sawmill is a manufacture within the meaning of that constitutional provision, which treats of the exceptions from the general rule under which all property is liable to taxation. It is now an elementary rale of construction in our jurisprudence, as well as in that of our sister States, that aR exemptions must be strictly construed, and that every presumption will be made against an exemption from taxation. State ex rel. Bertel vs. Assessors, 34 An. 574; Cooley on Taxation, 146; 18 Wall. 206; 97 U. S. R. 666; Grosse Tête R. R. vs. Kirkland, 33 An. 622; Danner vs. V. S. & P. Railway, 34 An. 954.

Hence, it is incumbent on plaintiffs to show that their property, herein sought to be exempted, comes clearly within the exceptions under which they invoke immunity from taxation.

In order to do this, they construed the constitutional exemption as intended to exempt all manufacturers of “ articles of wood.”

■ They are so deeply impressed with the correctness of that construction, that in their brief they quote the provision as reading on this point substantially as follows :

“ There shall also be exempt from taxation and license for a period of ten years from the adoption of this Constitution, the capital, machinery and other property employed in the manufacture of * * * and other articles of wood.'1'1

But to our minds the Article does not bear such a construction.

• It proposes to exempt some manufactures, but not all manufactures, and it specifically enumerates the kinds of manufactures which were contemplated by the convention.

It is worthy of note that in the enumeration, eac.h kind of manufacture is treated as a distinct and separate subject, and all are separated from each other by a comma, except the manufacture of. “ furniture ” and other articles of wood,” which are not thus separated," and thus convey an idea of similarity in the subjects contemplated or provided for.

Had it been the intention of the framers of the Constitution to have included among the exemptions, all manufactures of articles of wood, marble or stone,” the sentence would1 have beeu constructed tlins : furniture and articles of wood, marble or stone. But the enumeration, following the copulative conjunction “ and,” indicating the conclusion of an enumeration of distinct subjects, and the use of the word “ other,’1'1 as qualifying the articles of wood contemplated, both contribute to give a restrictive sense to the words “ articles of wood,” etc:, and satisfy our minds that the articles of wood, marble or stone contemplated, were such as furniture or other like articles. Or, in other words, that the articles of wood contemplated by the convention were articles which, like furniture, were made from lumber, either sawed or' split.

• The object of the exemptions created by this provision of the Constitution was to encourage and foster the establishment of manufactures Of the various articles daily needed by a people engaged mainly in’ agricultural pursuits; such as leather, harness, saddlery, machinery, agricultural implements, etc., the products of manufactures then very little known within the borders of the State.

This intention, and the idea that but a limited number of manufactures was contemplated in such an exemption, appear clearly to our minds by the refusal of the convention to adopt an amendment which proposed to include among the exemptions to manufactures óf skins, hides or hair, glass, crockery, china, porcelain, pottery, ivory or composition, canned goods, paints, varnishes.” Journal of the Convention, page 211.

We note also on the same page of the journal, that the convention refused by a viva voce vote to include among the exemptions, capital invested in sugarliouses and cotton gins,” which is capital used in preparing for market the two staple products of the State.

' It will not be denied that a sugarhouse comes more clearly within the definition of a manufacture than a sawmill.

It takes the stalk of the sugar cane, from which it extracts the raw juice, which it then boils down into sugar and molasses, both of which are fit for the table without further manipulation, and both of which are recognized to be among the most useful commodities in commerce. It is also a wrell known fact that sugarhouses contain a greater variety of and more costly machinery than sawmills. And yet, the convention unhesitatingly refused to extend its exemptions to that kind of property or manufacture.

This circumstance explains to our satisfaction the meaning and the effect of the refusal of the convention to include a special proviso to the effect, that sawmills should not be included in the exemptions provided for.

The understanding of the delegates was, that the absence of such property from the enumeration of exempted property, was a sufficient indication of its exclusion, without a special, negation of the same.

The argument of counsel for plaintiffs on this point, although very ingenious, falls short of the intended effect.

Our conclusion is, therefore, that capital, machinery and other property employed in the construction and in the operation of sawmills, is not exempt from taxation under the provisions of Article 207 of the Constitution.

Hence, we must affirm the judgment appealed from.