author: Nigholls, 0. J.

text:
    No. 13,126.
    State ex rel. Thomas F. Webb, Jr. vs. Hon. C. DeBaillon, Judge of the Seventeenth Judicial District Court for the Parish of Lafayette.
    The General Assembly did not, in enacting Act No. 163 of 1898, have in view in directing district judges to fix terms of court to control them in the length of time during which they should actually hold court in the different parishes, but to have designated in advance certain periods as “terms of court,' with a view of furnishing the basis to public officials for fixing dates for drawing juries, or doing other acts which, under existing laws, had to be done a certain number of days before sessions of court.
    QN APPLICATION for Writs of Mandamus and Prohibition.

      Oriher 0. Mouton for Relator.
    Respondent Judge pro se.

    Submitted on briefs March 29, 1899.
    Opinion handed down April 5, 1899.
   Statement of Facts.

The opinion of the court was delivered by

Nigholls, 0. J.

Plaintiff represents that he instituted in the District Court for the parish of Lafayette several months age a suit against one Sam Mouton, coupled with writs of attachment. That said suit is still pending and undecided. That in compliance with provisions of Act No. 163 of 1898, the judge of the Seventeenth Judicial District Court has fixed by rules of his court the sittings or-.terms thereof for the parishes of Lafayette and Vermillion, composing said district. That according to said rules the next regular terms of said court, after its present term at Lafayette, are to begin as follow s:

Eor the parish of Vermillion, on the first Tuesday of April.

Por the parish of Lafayette, on the fourth Monday of April.

That the provisions of Act No. 163 of 1898 are mandatory. That under the same the General Assembly has defined and fixed the ministerial duties of the judges of the several District Courts, leaving no ■discretion in the exercise thereof as long as the terms or sittings remain unchanged by the rules fixing the terms, and it is the absolute duty of the judge of the Seventeenth Judicial District Court to hold a session of the court at Lafayette, in accordance with the terms fixed by said court under the provisions of Act No. 163 of 1898, and there ■to sit as the public business may require.

That the Seventeenth District Court is now in session (March 24, 1899) at Lafayette, and has been since the second Tuesday of March, 1899, the date fixed under said rules; that said above mentioned cause was fixed for trial for Thursday, March 16th, 1899, since the preceding term of said court at Lafayette, under the rules of said court authorizing such a fixing for the next ensuing session. That on account of other publip business before said court taken up for trial,, said cause could not be reached, that the remainder of the present session is already taken up for the trial of cases pending before said court and fixed before Monday, the twentieth of March, 1899. That being unable to secure a trial of said cause at the present session of said court for causes beyond his control, and desiring to secure a trial of same at the earliest time under the rules of said court, fixing said terms as aforesaid under the laws and Oonstitution of the State, he applied by motion in open court on Monday, the twentieth of March, to fix the trial of said cause for the twenty-fourth of April, 1899, the first day of the next ensuing term being the fourth Monday of said month, hut that the judge arbitrarily refused to allow said fixing, on the ground among- other! that Act No. 163 was unconstitutional, and that the business pending before the court in the parish of Vermillion would require a more extended term than that fixed.under the terms of said Act, by the rules of court aforesaid, refusing thereby to hold any session of his said court as fixed by said rules, or before the public business of Vermillion parish was disposed of. That the question involved was one of public interest.

That the refusal of the judge was a denial of justice, and furnished a proper occasion for the exercise of the supervisory powers of the Supreme Court.

In view of the premises petitioner prayed for a writ of mandamus directed to the judge of the Seventeenth Judicial District Court, commanding him to allow the fixing of said cause as prayed for and to hold court and to try said cause at the April term under the rule3 fixing said terms of court and for a writ of prohibition, prohibiting the said judge from holding court in the parish of Vermillion in contravention of said rules of court fixing said term in Lafayette and of Act No. 163 of 1898.

The district judge assigned as reasons why the application should not be granted, that Act No. 163 of 1898, was unconstitutional and violative of Art. 117 of the Constitution of 1898.

That that article provides that “District Courts shall hold continuous sessions during ten months of the year. That in districts composed of more than one parish the judge shall sit alternately in each-parish as the public business might require, and that the provisions of the article should go into effect upon the adoption of the Constitution.”

That the provisions of that article are mandatory on all district judges without the Act of 1898, being self operative, not requiring any action of the General Assembly to give it force and effect.

That Act No. 163 of 1898 further contravened Article 117 of the Constitution in that the General Assembly undertook without warrant of law and in direct violation of the terms of said article to prescribe the duration of the sessions of District Courts composed of more than-one parish, and denied to district judges the right to sit alternately in each parish as the public business might require.

The judge admitted that he did fix the sessions of the Seventeenth Judicial District Court under Act No. 163 of 1898, and averred' that he had used all due diligence to dispose of the public business in his district within the time limited for a duration of a term of court under that -act, but he had been unable, through no fault of his, to accomplish results satisfactory to himself and parties in interest

He returned that he would open a criminal and civil session off' court in Vermillion parish, on Tuesday, April 4th, 1899; that he could not with all due diligence, complete the public business in that parish in three weeks; that the Court of Appeals of the Third Circuit would hold an adjourned meeting of that court in Vermillion parish,, on April 20th, 1899, and would remain in session some three days; that during the session of the Court of Appeals, the District Court could not bo in session.

That with one additional week of court in Vermillion parish h© could clear the jail and have his dockets, both criminal and civil, well in hand and in a satisfactory condition. That through no fault of his or the district attorney, litigants or their counsel, and witnesses, the dockets were so congested that the public business required a prolongation of the session, beginning in Vermillion, on April -1th, 1899, one week longer. He returned that the old system of fixing terms was suspended by the one continuous term of ten months and the General Assembly was without warrant in law to adopt a system which had been rejected by the framers of the Constitution and in direct violation of the express provisions of the Constitution

That in adopting the course complained of, he was actuated solely by a deep sense of duty imposed upon him by law, that be advised the bar in open court of his intended action so as to enable them to invoke such remedy as they were entitled to, to protect the interests of their clients.

He referred the court to Act No. 163 of 1893. Article 11? of the Constitution of 1898, and State ex rel. Murray vs. Judge Felix Voorhies, decided by it on June 24th, 1898.

Act No. 163 of 1898 referred to in the pleading’s was approved on the 14th of July, 1898. It is entitled: “An Act relative to sessions of District Courts throughout the State, the parish of Orleans excepted, and to carry out the provisions of Article 11? of the Constitution; to confer on district judges certain powers in relation to the conduct of business before said courts and regulating the practice and proceedings thereof.” Its second section provides that in districts composed of more than one parish, the judge shall sit alternately in each parish, and the sessions from one parish to the other parish shall be continuous, provided that no session in any parish of a district shall he fixed for less than one week, or more than three weeks, as the public-business may require.

The district judge shall, by an order of court, fix a date for the holding of the sessions in each parish, which order shall he entered' ■on. the minutes of the court and published, at least, three times in the official journal in each parish, and after being so fixed, no change shall be made in such order, within less than one year thereafter.

Its third section provides, that it is the intent and meaning of Article 117 of the Constitution that District Courts shall always be open and the proceedings held to be in open court while the judge is on the bench, and that the fixing of sessions in districts composed of more than one parish shall not affect the authority or duty of the court to sit at any time in any of the parishes when the public interests may require it.

The 117th Article of the Constitution, which it is the declared object of Act No. 163 to carry into effect, directs that District Court3 shall hold continuous sessions for ten months of the year. For districts composed of more than one parish the judge shall sit alternately in each parish as the public business may require.

Opinion.

The district judge having returned to us that he can not do justice in a three weeks’ term in Vermillion parish to the public business therein, and that for that reason availing himself of the provisions of Article 117 of the Constitution, he intended to prolong the session one week longer than the longest time fixed for a session by Act No. 163, which session would terminate on April 29th, 1899, and having assigned as a further reason for his course that three days, at least, of the April term in Vermillion would be taken up by the adjourned term of the Court of Appeals of the Third Circuit, we do not feel ourselves justified to have issued the mandamus prayed for.

Article 117 of the Constitution directs that the district judges should sit alternately in each parish as the public business may require.

It is not claimed that the judge’s statement that the condition of the public business in Vermillion is such as to require an extended term is not well founded. His action is not arbitrary because it may chance to work hardship or delay in some particular case or cases.

It is the general public interest which has to be consulted. The Legislature cannot control this matter by an iron cast rule moulded in advance to govern length of sessions, nor do we think that such was the intention of the General Assembly.

The fourth section of Act 163 declares expressly that the fixing of terms shall not affect the authority or duty of the district judge to sit at any time in any of the parishes of his district when the public interest may require.

We think the General Assembly did not have in view in directing district judges to fix terms of court, to control them in the length of time during which they should actually hold court in the different parishes, but to designate in advance certain periods as '“Terms of Court,” with a view of furnishing the basis to public officials for fixing dates for drawing the vonire or doing other acts which under existing laws may have to he done so many days before sessions of • court.

It does not follow that the fixing of such dates would carry with it the necessity of opening the sessions at the time fixed, should public •exigencies require the prolongation of a prior session in another parish. The judge could order an adjournment of the opening to a •day fixed, of which all parties in interest would be informed, and to which they should conform.

In tfiat way matters would not be left in a condition of constant uncertainty.

For the reasons assigned, it is ordered that relator’s application for writs of mandamus and prohibition be, and is hereby, refused.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 12,948.
    Levy & Block vs. Their Creditors.
    Syllabus.
    -1. Parties seeking a respite do not bring into court any fund for distribution; on the contrary, their object is to withdraw their property from legal pursuit and beyond legal controversy.
    •2. A creditor for two hundred and twenty-five dollars who, In the interval between an application for a respite and the order thereon granting a stay of proceedings and the meeting of creditors called thereby, instituted an action against the parties seeking a respite for the unpaid purchase price of goods sold them with recognition of privilege, and for judgment, and accompanied his demand with an application for a writ of sequestration, is not entitled when the sequestration is set aside and his suit dismissed, on the ground that the allegations of his petition are untrue, to appeal to the .Supreme Court.

      The fact that he may have filed this suit in the respite proceedings and called it an intervention or third opposition, does not affect the question.
    There is no eoneursus formed by such a proceeding, and there is no fund in court for distribution.
    ON APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Solomon Wolff for Intervenors, Appellants.

      Parlcerson & Tobin and W. H. Robinson for Defendants, Appellees»
    Argued and submitted March 22, 1899.
    Opinion handed down April 3, 1899.
   The opinion of the court was delivered by

Nicholls, C. J.

On October 14, 1898, Levy & Block filed an application in the Oivil District Court for a respite.

Accompanying this petition, were different schedules, one of them containing a list of their ordinary, another of their privileged creditors.

Kohn, Weil & Co., and Layman, Kenney & Boze figured on the first of these lists, but not upon the second. The former were recognized as creditors to the amount of $226.25, and the latter as creditors in the sum of $113.

The District Court rendered an order upon the application for respite, for a meeting of the creditors of Levy & Block, on the fourteenth of November; and directed that in the meantime, proceedings against their persons and property he stayed.

On the 14th of October, Kohn, Weil & Co. and Layman, Kenney & Bose filed separate petitions of intervention and third opposition in the respite proceedings.

The pleadings and prayers of their petitions were similar in character, and as nearly identical as the pleadings and prayers of different parties could be.

The plaintiffs alleged themselves to be creditors of Levy & Block; the former for the sum of $226.25; the latter for the sum of $113. •They alleged that their claims were for the unpaid portion of the price of goods sold by them to their said debtors; that the claims. were past due; that they were secured as to payment by vendor’s privilege on the goods so sold by them, which were still in the possession of Levy & Block, and that they feared that the latter would conceal, part with, and dispose of the goods on which their privilege rested, during the pendency of the suit.

In view of their allegations, they prayed that said property be sequestered under orders of sequestration, which they asked should be issued; that their debtors be cited, and, that after due proceedings, they have judgment against them for the amount of their respective claims, with recognition of their privilege, and that they be paid, respectively, by preference out of the proceeds of the sale of said property over all other persons.

Orders for writs of sequestration issued upon these petitions, and were executed by the sheriff.

Levy & Block appeared, and moved for the dissolution of the sequestrations, and the dismissal of the petitions of intervention and third opposition, upon the ground, that they were issued illegally, improperly, and in defiance of the court’s order staying proceedings, and the further ground, that the allegations of the petitions and affidavits were untrue.

The District Court, in two different judgments, dissolved the sequestrations, and dismissed the intervention and third oppositions, and the plaintiffs in those suits appealed to the Supreme Court.

An admission appears in the record, that after the writs of sequestration were issued, the sheriff appointed Levy & Block keepers of the property sequestered, under instructions from the attorneys of the intervenors and third opponents, and that the goods were left at the store of the debtors at the request of their counsel at a casual meeting.

The cases were argued before the Supreme Court upon the single proposition advanced by Levy & Block, and sustained by the District Court; that, when pjaintiffs, who have obtained writs of sequestration upon sworn allegations that they fear defendants will conceal, part with, or dispose of merchandise sequestered, instruct the sheriff in executing the writs to appoint the defendants themselves keeper of such merchandise, they effectually disprove their own allegations, and the writs must fail.

Contest over the right of Kohn, Weil & Co., and Layman, Kenney & Bose to have brought suit and sequestered in spite of the orders of' the District Court staying proceedings against Levy & Block and their property, appears to have been abandoned if ever insisted upon.

Opinion.

No motion has been made to dismiss these appeals; but, if the subject matters involved are not such as to bring them within our appellate jurisdiction, we have no discretion; but must decline to pass upon the questions submitted.

Appellants having been called on through our clerk for the theory upon which they have brought the appeals before us, have replied that they rely upon that portion of Article 65 of the Constitution of 1898, which gives the Supreme Court appellate jurisdiction, “in all cases where the fund to be distributed, whatever may be the amount therein, shall exceed two thousand dollars.”

Levy & Block have not only not brought into court any fund to be • distributed, but the object of their suit is, on the contrary, through respite proceeding's, to have their entire property left in their hands for a given period, secured from being brought into court for the payment of claims against them.

Appellants in the suit which they have brought have not attacked the respite proceedings in any manner.

Appellants simply brought two independent suits as vendors of goods sold by them to Levy & Block, to recover for the unpaid portions of the price due them, with recognition of a vendor’s privilege upon the same, coupled with sequestrations.

There is no allusion to, or connection with the respite proceedings further than that which results from the fact, that the plaintiffs refer to their own proceedings as interventions and third oppositions therein ; and that their actions bear the title of, and are given the number •of the suit of Levy & Block vs. Their Creditors.

Appellants each claim to be privileged creditors; if so, they are expressly excluded by Article 3095 of the Civil Code from the operation of the respite laws.

They have the right, notwithstanding the application of their debtor for a respite, to proceed judicially by separate and independent suits, to have their status ascertained and fixed, and to have payment of their claims enforced, to the extent, at least, of the exhaustion in their favor of the property struck by privilege.

If the debtors question their rights of privilege, the proper and legal course for them to pursue, is to contest the same m the suits which have been brought against them.

Appellants can not, by altering the mere form of their proceedings and calling them interventions and third oppositions, alter the substance of things.

Were we to take cognizance of appellants’ suits, and reverse the-judgments which have been rendered against them, they would not,, as the result of our decree, be entitled to take out of court any portion of a fund which is now in court for distribution.

We would have had simply to deal in each case with the sequestration which was issued therein, and confirm their right to maintain it.

There is no concur sus involved in these proceedings; no questions of conflicting rights de hors those of each of the plaintiffs and their debtors.

Appellants say, that when the creditors meet, they may possibly refuse the respite, and should they do so, a cessio honorum will follow, and the entire estate of Levy & Block will pass into the hands of a syndic for liquidation and distribution.

That is possible, but it is a remote contingency upon which no decree affecting ihe rights of the parties can be presently predicated.

We regret very much that we have to dispose of these appeals in the way we do, as all the parties seem desirous of having the opinion of this court upon the issues made; but we have no alternative, but to dismiss the appeals.

The principles announced in Freyhan vs. Berry et als., 49th Ann., 309; Denegre vs. Mushet, 46th Ann., 90, and Wheelwright vs. Transportation Co., 47th Ann. 540, find application here.

The appeals are hereby dismissed.

Monroe, J., takes no part in this case, as he was not a member of the court when the case was submitted.


author: Nicholls, O. J.

text:
    No. 13,048.
    Willie Dupuy, Widow R. Knight. vs. William Esnard, Testy. Executor, et al.
    Syllabus.
    1. A nuncupative will, by public act, tbe validity of which was called In-question for defects of form, is tested herein and found valid.

      2. The placing by the notary of a word omitted from the will upon the margin thereof, is an immaterial circumstance when the word can be ignored and the will stand.
    ON APPEAL from the Seventeenth Judicial District Court for the Parish of Vermillion. Be Baillon, J.

      L, L. B our yes for Plaintiff, Appellant.

      Broussard & Küchell for Defendants and Appellees.
    Submitted on briefs February 8, 1899.
    Opinion handed down April 3, 1899.
   The opinion of the court was delivered by

Nicholls, O. J.

The plaintiff alleging herself to be the forced heir of her father, P. D. Dupuy; that he died in 1897, leaving property, real and personal, valued at over $7,000; that on March 24th, 1894, he made a will before Lastie Broussard, a notary public; attacked the said will and the proceedings therein.

She averred that the will was an absolute nullity. That it did not show on its face:—

1st. That it was received by the notary in the presence of three witnesses.

2nd. That it was dictated to the notary by the testator in the presence of all the witnesses.

3rd. That it was written by the notary in presence of all the witnesses. And lastly;

It was null and void, because it was not written and signed in presence of all the witnesses.

She further averred that said will was null, because the notary in writing out the aforesaid will did not make express mention of all that is required by Article 1578 of the Revised Civil Code of Louisiana of 1870, to make express mention of in said will. That said will was a nuncupative will by public act and as such was null and void; that said will being an absolute nullity, everything done under said will was null and void; that for this reason its attempted probation in court; the attempted sale of the property of said P. D. Dupuy, deceased; the inventory thereof; the putting of seals thereon and the tableau sought to be homologated, were all null and void; that the attempted probation of said will and homologation of said tableau were also null for want of citation of petitioner, who was not represented therein nor cited; that said sale of the property of P. D. Dupuy was null because it was obtained by William Esnard, a person whose appointment was a nullity, as the will of which he claimed to be the executor was an absolute nullity; said sale was also null, because the property was not offered on the day of sale, and the sheriff was without authority to readvertise it fifteen days more and to sell it on twelve months’ credit; that said William Esnard never qualified according to law as executor in above entitled succession. She further averréd that she had been defrauded of her rights in the premises and was entitled to have said Esnard made responsible for all debts of the succession as an intermeddler under R. 0. 0., Art. 1100.

In view of the premises she prayed that she be recognized as the legitimate heir of P. D. Dupuy; that the will of said P. D. Dupuy be annulled; also the sale of all his property, both real and movable; the judgment probating said will; the appointment of William Esnard as testamentary executor under said will and the tableau filed in said succession by said Esnard and its attempted homologation.

Plaintiff subsequently filed a supplemental petition, in which she averred that through inadvertence she failed to aver in her original petition that the will alleged to have been made by her father, and attacked by her, was null, for the additional cause that it failed to state when the executor named was to execute the desires of the deceased, whether at present or in future.

She further averred that the word “written” which appears on the margin of the pretended will attacked by her, was placed there after the making of the will; that the aforesaid will was null for that reason, and because it failed to show that the inspirations therein contained were made “mortis causa ” or were to take effect after the death of the said P. D. Dupuy.

Louis Dupuy and Mrs. John Ellis accepted service of petition; judgment by default was taken against them, but they filed no answer.

The testamentary executor, Esnard, answered, pleading, first, the general denial.

He admitted that Pierre D. Dupuy made his last will and testament before Lastie Broussard, notary public.

Further answering he averred that he had paid out all monies received by him as executor of the estate of Pierre D. Dupuy (except a small balance in his hands) to the creditors of said estate, in accordance with a tableaux of debts and charges, duly homologated by a judgment of the court ordering the payment to the creditors carried thereon.

He prayed that there be a judgment 'in his favor, dismissing plaintiff’s demand in ioto and decreeing the will to be valid, and all proceedings in the matter of the succession of P. D. Dupuy to be valid and regular and of full force and effect.

Eugenie Dupuy, one of the defendants, answered, pleading, first, the general issue. She admitted the making of the will, and, further answering, she averred that in said will Pierre D. Dupuy acknowledged his indebtedness to her for the sum of $1,500 principal; that said amount, with interest, was carried on the tableau of debts and charges filed by the executor testamentary, in the succession of P. D. Dupuy, and that said tableau had been duly homologated and approved by the judgment of the court.

She prayed that there be judgment decreeing the will to be a good and valid will in law, and decreeing all proceedings had in the succession of P. D. Diipuy to be valid and regular and of full force and effect.

The court rendered a judgment in favor of the defendant, rejecting plaintiff’s demands in toto.

It decreed the will and all proceedings taken thereunder valid.

Plaintiff appealed.

Opinion.

Pierre Duval Dupuy, a resident of Vermillion parish, died in said parish, leaving as his heirs his four children, Nora, Frederic, Louis and Willie Dupuy.

He left a last will, in nuncupative form, by public act executed before Lastie Broussard, a notary public for the parish of Vermillion.

William Esnard was appointed executor without bond. The will was probated and the executor qualified under it. The property of the succession was sold under order of the court at the instance of the executor to pay debts. The executor, subsequently, filed a provisional account and tableau of debts with proposed distribution of the funds.

This account was homologated on the 80th of April, 1898, and theexeeutor authorized to make payment as prayed for.

Willie Dupuy (.widow of R. Knight), a daughter of the deceased, brought an ordinary action attacking the will and all proceedings under it.

The testator, in his will, declared that he had received from his sister, Eugenie Dupuy, the sum of $1,500 which was then invested as-a partner in the firm of P. D. Dupuy and Company; that this sum of $1,500 he desired to be paid to her before any partition of his estate the balance after it should have been converted into money to be’ equally divided, share and share alike, between his four children,. Frederic, Louis, Nora and Willie.

The testator appointed William Esnard, executor, without bond, giving him the power to liquidate the estate as he thought proper to the interest of all concerned.

As the residuum of the property, after the payment of debts, was-made by the will as to its disposition, to follow the very same course it would have followed had the will not been made, the main object had -in view by the deceased would seem to have been to recognize his indebtedness to bis sister Eugenie, and to guard her rights, and to select the person who should administer upon his estate.

Whether any special advantage would be gained by plaintiff by setting the will aside is problematical, as the recognition by plaintiff’s father of his indebtedness to his sister, under his signature, would still remain as a fact, and this indebtedness to her and to others would have entitled the creditors to have placed the succession in charge of an administrator.

Be that as it may, our duty is to pass upon the issues raised.

The will is as follows :

" “Be it known that on this the 24th day of March, Anno Domini, one thousand eight hundred and ninety-four, before me, Lastie Broussard, a notary public, duly commissioned and sworn, in and for' the parish of Vermillion, and in presence of the witnesses following, viz.: Eugenius G. Lemarie, Numa Frederick and Willie R. Ellis, allr of lawful age and residents of the town of Abbeville, in the parish, of Vermillion, personally appeared Pierre Duval Dupuy, a resident of said town and parish, who declared that ‘being of sound mind and in possession of all my faculties, I make this my last will and'testament.

“ ‘I desire that all my personal debts shall be paid,

“ T have received from my sister, Eugenie Dupuy, now residing in the city of New Orleans, the sum of $1,500, which is now invested, as a partner, in the firm of P. D. Dupuy & Company, this amount of $1,500 I desire to be paid to her before making any partition of my estate. When these amounts are settled, I wish the remainder of my estate, after it shall be converted in money, to be equally divided, share and share alike, amongst my four children, Erederic, Lewis, Nora and Willie.

“‘I hereby appoint William Esnard the executor of this will, without bond, and give him the power to liquidate my estate as he thinks proper to the interest of all concerned.’

“And the said P. D. Dupuy having ceased to dictate, declared that , the above contained his last will which he dictated to me, notary, in presence of said witnesses and written by me, notary, as dictated by said P. D. Dupuy, and was then read by me, notary, to said testator in presence of said witnesses.

“The whole having been dictated by him, written and read by me, notary, and signed by the testator, the witnesses and notary at one time, without interruption and without turning aside to other acts. And the said testator again in the presence of the notary and witnesses declared this act to contain all his desire and last will.

“The words ‘by me notary’ and ‘by the testator, the witnesses and notary,’ interlined before signing and approved.

(Signed) P. D. Dupuy.

Witnesses:

(Signed) “Willie R. Ellis.

(Signed) “Nujvia Frederick.

(Signed) “E. G. Lemaire.

l(Seal)

(Signed) “Lastie Broussard, “Notary Public

The grounds of annulment set up, are, that the will does not show:

First — That it was received by the notary in the presence of the three witnesses.

Second — That it was dictated to the notary by the testator in presence of all the witnesses.

Third — That it was written by the notary in presence of all the witnesses.

Fourth — Because the notary in writing out the will did not make express mention of all that he is required by Article 1578 of the Civil •Code to make express mention of therein.

Fifth — That the word “written” which appears on the margin of' the pretended will was placed there after the making of the will. The will was further attacked on the allegation that, as matter of fact, the will was not written and signed in presence of all the witnesses.

All the proceedings and acts done under the will were attacked upon the theory that the instrument being an absolute nullity carried with it the absolute nullity of everything based thereon. The purchasers at the judicial sales, and the creditors who were paid on the strength of the homologated account, were not made parties to the suit.

There was no attempt made to raise an issue with these creditors as to the verity of their claims.

The first four grounds set up by the plaintiff against the validity of the will are not sustained.

The instrument contains all necessary recitals, though, perhaps, not as artistically stated as they might have been.

Plaintiff does not specify what particular fact, or circumstance, has been omitted, the existence of which the law requires to be expressly mentioned in a nuncupative will by public act.

If any such has been omitted it has escaped our attention.

The testimony sustains the allegation • that the word “written,” which appears on the margin of the will, was placed there after the •completion of the instrument. Ignoring it altogether, the will would still stand.

The will, was, as a fact, written and signed in presence of all the witnesses.

Remarks addressed by the notary, during the execution of a will, to the attending witnesses, insisting upon their remaining in the room until the closing of the instrument, is not such an interruption or turning aside to other acts as the lafa prohibits.

We find no grounds for annulling the judgment, but it should be •amended.

For the reasons assigned it is ordered, adjudged and decreed, that the judgment appealed from be, and the same is hereby affirmed, •except in so far as it rejects, definitely, plaintiffs demand for the nullity of the sales of real estate made in the matter of the successions ■ — the said judgment in that respect being hereby changed and amended so as to dismiss plaintiff’s demand as of won-suit on that branch of the case. Costs of appeal to be borne by the succession.

Monroe, J., takes no part, as he was not a member of the court when the case was submitted.


author: Watkins, J.

text:
    No. 12,988.
    Rosetta Gravel, Paving and Improvement Company vs Mary A. Jollisaint et al.
    Syllabus.
    The lien and right of pledge resulting from a local assessment for street paving attaches to property of the abutting proprietor without reference to the person in whom title is actually vested, and proceeding, taken against same for the enforcement of such lien and pledge, is one in rom, notwithstanding the title holder be cited for the purpose of carrying same into effect.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      E. Evariste Moise, Oiunio F. Socola and John Wagner for Plaintiff in case and in rule, Appellee.

      Dart & Kernan for Mutual Loan and Building Company, Defendant in rule, Appellant.
    Argued and submitted March 24, 1899.
    Opinion handed down April 3, 1899.
   The opinion of the court was delivered by

Watkins, J.

This is a proceeding, by rule, taken against the Mutual Loan and Building Company to compel it to show cause why it should not accept title to a certain improved real estate situated in the city of New Orleans, which was made by the sheriff under a writ of fi. fa. in the above entitled cause and tendered to it according to law ■ — said property having been regularly adjudicated to said company at a public, judicial sale, for the price of $2,025.

The ground upon which defendant in rule refuses to accept the-•title tendered, and complete the adjudication, and to pay the purchase price, is that the title of the defendant in execution is one by donation inter vivos, and that the donor being yet alive, the title, by donation, was and is revocable, and subject to revendication at the death of the donor.

That such a title is, consequently, uncertain, and not such a title .as it can be compelled to accept.

The contention of the plaintiff in rule is that it instituted suit ■against the defendants upon two certificates for street paving — all then being absentees, and represented by curators ad hoc — and obtained judgments, with recognition of lien and privilege upon the abutting property as securing the debt, and maintaining and enforcing its judicial sequestration thereon.

All the parties in interest were cited — one of the defendants having made a donation inter vivos to a co-defendant, the seized debtor.

On this judgment a writ of fieri facias was issued, the aforesaid property seized, advertised and sold, after due notice and full compliance with all the requirements of law, and at the sale thus made, the property was adjudicated to the MutuaVlLoan and Building Association, as stated supra.

On this state of facts its contention is that the judgment was one in rem, and that the title thereunder made is good and valid, irrespective of any latent imperfection or ambiguity in the title of the ■donor.

On the trial the rule was made absolute, and the Mutual Loan and Building Company has appealed.

There is in the answer of defendant in rule an averment to the •effect, that no such title as respondent is bound to accept, has been tendered, for the reason that said property was acquired by one of the defendants by donation inter vivos from Samuel Barrett, who is still alive, and has living issue of his marriage, all of whom were minors; and, consequently, said title is subject to attack in.the future by his heirs, should it be made to appear on the settlement of his •succession that said donation infringes upon their legitime.

That is the only question with which we are called upon to deal.

The statement of plaintiff’s case is as follows, viz.:

“This judgment is one in rent under the statute. It is in rem under ■the law. It is in rem under the practice. The defendants not having •been personally served, the property being in the custody of the court, under the writ, the judgment was and is necessarily, in rem. It can not bind the parties, save to the extent of the value of the property in the custody of the court. The judgment is, therefore, absolutely, a judgment in rem, not extending beyond the value of the property seized under the writ of judicial sequestration, and held by the court in its custody, at the time of the rendition of the judgment.

“The debt for which suit was brought, and on which the writ of judicial sequestration issued, and for which judgment was recovered, is a deli of the property, under the statute. It is true, under the statute, it is also a debt of the owner. The statute makes both the owner of the property and the property liable for the debt. The debt is,, therefore, under the statute, due both by the owner and the property. The property, under the statute, owes the money, wespective of the question in whom is title."

“The donor had title and possession; it was recorded. That title, it may be, was defeasible, but still it was a good and valid title, until action was had to defeat it. The action would not have defeated the title, only to the extent the donation infringed on the legitime of the forced heirs of the donor. The title was,, therefore, defeasible in part; not necessarily entirely.

“All parties in interest were before the court, represented by a tutor and curators ad hoc. The property which owed the debt was before-the court. The property was there to be condemned; all the parties who could have defeated the donation, were there before the' court, to be condemned to the extent of the value of the thing which owed the debt. The judgment condemned the property — logically by the force-of the practice, legally under the statute.

* ■» * * * •>:■ * * * * * •#

“The title in the donee is good — not bad. It may be proved partially bad, if the donation infringes the legitime, and, also, if the1 heirs (children) of the donor, see fit to take action; but, if sold for a real charge, the charge for which the property is liened and burdened" with a privilege superior to all others; a charge which is a debt on the property, irrespective of the person owning, the defendant had a good, title by the adjudication.”

Per contra the contention of the defendant in rule is as follows, viz;

“The debt on which suit was brought, is, in its nature, an assessment against the property, and the name of Mrs. Barrett is used solely because the title stands in her name upon the books of the conveyance-records. The assessment necessarily appears in the name of whoever appeared to be owner on the conveyance records. By statute it is a charge against the property, having rank superior to any mere conventional mortgage or ordinary debt. The only method of enforcing the collection of this assessment is through the medium of a suit instituted against the person in whose name the bill is made, prosecuted .to judgment, and thereafter the issuance of a fi. fa. to sell the thing against which the lien bears.

“It was sought in this case to charge all the parties who might hereafter have an interest in the property with notice that the assessment for the improvement of the property was being enforced, and to that end Samuel E. Barrett, the donor, his wife and his four children, who are now alive, were made parties through curators ad hoc and served with process for the collection of the assessment. It is questionable whether such proceedings are sufficient to destroy the right of action of the minor children of Samuel E. Barrett'for a revendieation of the property, should it hereafter appear that the donation made to Mrs. Barrett, the assessment debtor, exceeds their legitime. Their rights are not yet in existence, and it may be that the conditions under which they could exercise them will never arise; hence, they could not be bound by this suit in respect to an advantage which may result to them in the future. It is only present and actual rights that courts sit to hear. The making them parties to this suit can in no way affect them, as under no theory could it be held to divest the interest of the children now living, nor those who may hereafter be born to Samuel E. Barrett, as they have the right to institute this action of revendieation. The theory on which they were made defendants is, perhaps, founded on the Married Woman’s title cases. See particularly that of Duruty vs. Musacchia, 42 Ann., 357, and the decisions there cited.

“But if this practice is apposite, we nevertheless have the case of Tessier vs. Roussel, 41 An. 487, declaring that the title to property subject to this action is never safe until the donor’s death and a settlement of his succession.

“We conclude, therefore, that the adjudieatee cannot get a good, valid and unencumbered title to the property, and the judgment below was erroneous in so holding and should be reversed.”

The city charter, amongst other things provides, that for the paving or' banquetting of any street, or portion thereof, the city council may, in its discretion, “force, impose, and collect of the front proprietors of lots fronting on such streets, a special local assessment in proportion .to the frontage, not exceeding the increase in the value of the property, occasioned by the local improvement; and such levied assessment shall have a 'first privilege superior to vendor’s privilege, and all other privileges and mortgages.” Section 37 of Act 20 of 1882. Section 3 of Act 73 of 1870.

The language employed in the latter statute is, that the abutting property “shall be deemed, considered and treated as pledged for the payment of said cost.”

In Asphalt Paving Co. vs. Gogreve, 41 An. 251, we held that those two acts were in no sense, “in conflict, inconsistent with, or contrary •■to each other”; and that Section 119 of Act 164 of 1858, which is •identical therewith ipsissimis verbis, was examined and applied to a •similar paving contract for the grading and shelling of a street, in Marquez vs. City of New Orleans, 13th Ann. 319.

To a like effect is Correjolles vs. Succession of Foucher, 26th Ann. 362, construing the similar provisions of an act of 1868.

See, also, Payssoux vs. Succession of Baroness DeChaurand, 36th Ann. 547, construing similar provisions of Act 113 of 1886.

In quite a number of cases this court has held that local municipal •assessments for local improvements are valid, although the organic law provides that all taxation shall be equal and uniform; and the reason for that rule is, that such assessments are not taxation within the meaning of the Constitution. Yeatman vs. Crandall, 11 Ann. 220. The New Orleans Draining Company, Praying for the Confirmation of a Tableau, 11th Ann. 371. Wallace vs. Shelton, 14th Ann. 496. O’Leary vs. Slloo, 7th Ann. 25. Municipality vs. Guillotte, 14th Ann. 297. 2 Dillon’s Munc. Corp. Secs. 617, 619. Cooley on Taxation, p. 117; 416 et seq. Charnock vs. Levee Board, 38th Ann., 323. Planting Company vs. Tax Collector, 39th Ann. 461.

We think it unnecessary to analyze these decisions, inasmuch as the ■principles therein announced have been so generally accepted and acted upon by this court in many more recent decisions, that they may 'be accepted as in some respects axiomatic in its jurisprudence.

The following eases may be appropriately cited in support of that •proposition, viz.: State ex rel Hill vs. Judges, 46th Ann. 1293. Railroad Company vs. Sheriff, 47 An. 708. Fayssoux vs. Henry Denis, 48th Ann., 850. State ex rel. Tax Collector vs. Court of Appeals, 49th An. 1221. Shreveport vs. Puscott, 51 A. —.

In quite a number of decisions, this court lias held, that in matters of ordinary taxation, which are uniformly construed strictly, it is permissible for tax assessors to list real property for taxation in like manner as the title thereto stands upon the -books of the recorder’s office; and that the title conveyed in expropriation thereof for delinquent taxes, is valid and indefeasible, notwithstanding same might have been defeated in an action at law by reason of some latent ambiguities therein.

On this proposition the following opinions may be cited, viz.: Sewell vs. Watson, 31st Ann. 589. Mason vs. Bemiss, 38th Ann. 935. Carter vs. City, 33rd Ann. 816. Insurance Co. vs. Levi, 42nd Ann. 432. Oteri vs. Tax Collector, 42nd Ann., 374. Prescott vs. Payne, 44th Ann., 650. Augusti vs. Citizens’ Bank, 46th Ann., 530. In the Matter of the City of New. Orleans, Praying to be Put in Possession, 51st Ann.-.

On this theory, we feel safe in holding that the lien and right of pledge resulting from such assessments, of necessity, attach to the property of the abutting proprietor without reference to the person in whom the title is vested; and that proceedings taken for their enforcement are proceedings in rem, notwithstanding the owner is cited for the purpose of carrying same into effect.

If this were not so, the enactment of such laws would be a vain .and fruitless proceeding.

Judgment affirmed.


text:
    No. 12,998.
    Paula Trahan vs. Josephine Simon, Tutrix, Administratrix, et al.
    Syllabus.
    The real property of a succession having been sold for the purpose of paying 'debts of the deceased, a single legatee is without interest to institute suit for the revocation of the sale on the ground that same was made to a ■person interposed for the administrator of the (state, if Hie purchase price has been paid in cash, the amount of the appraisement in the inven, tory bid. and the proceeds yielded are insufficient to pay the indebtedness of the deceased.
    ON APPEAL from tbe Nineteenth Judicial District Court for the Parish of Iberia. Voorhies, J.

      L. L. Bourges for Plaintiff and Appellant.

      I osier é Broussard for Defendant and Appellee.
    Argued and submitted January 12, 1899.
    Opinion handed down February 6, 1899.
    Rehearing refused March 7, 1899.
   The opinion of the court was delivered by

Watkins, J.

This suit is brought by the plaintiff in her own right, and as the wife of Robert N. Bush, who joins her for the purpose of aiding and authorizing her, alleging that by the will of Pierre Abadie, deceased, she was instituted a residuary legatee of an undivided one-half of all the property he owned at his death, both real and personal; and that, at the death of the testator, in 1882, he left, amongst other property, the following, viz.:

Two certain improved city lots in Iberia, having a front of ninety-six (96) feet front on Julia street, by a depth of one hundred and fifty-two (152) feet, valued at $4,000.

Also, movable property valued at $330; and outstanding in favor of the deceased — who was a physician — accounts valued at $1,742 — and all of which are particularly described in an inventory of the estate of the deceased.

That by virtue of said legacy, she became the owner of one undivided one-half of said property immediately after the death of the testator, and should have been put in possession immediately after the will was probated, as she had been formally recognized as legatee by an order of court.

That, instead of so doing, Charles Olere, Sr., in his capacity of administrator of said succession, caused said real estate and movable' property, also, to be advertised for sale on the 7th of August, 1882, and caused a pretended sale thereof to be made, to Etienne Olere, for the sum of $2,120; and, on the 12th of February, 1893, only six months afterward, said pretended adjudicatee reeonveyed same to Charles Olere, Sr., for the sum of $2,000, on terms of credit; and her averment is, “that both of these sales are simulations.”

' That the pretended adjudicatee and purchaser were brothers, and that the former was only a person interposed to take title for the-latter, who, being administrator of the estate; was in law incapacitated to buy the property belonging thereto; and that the said purchaser was “unable to pay $2,120 cash, and then sell for $2,000 on twelve months’ credit.”

That said transaction was not a sale, but an attempt to deprive petitioner of her rights, and consequently null and void.

She claims further, that Charles Clero, in his capacity of administrator of the succession of Pierre Abadie, is indebted unto her in the just and full sum of $871, on the ground that he failed to collect the aforesaid accounts, or show that it was impossible to collect them— said claims amounting to $1,742, one-half of which belonged to petitioner as legatee of Pierre Abadie. She avers that said claims were good, valid and collectible at the time of the testator’s death.

She further avers, that Pierre Abadie owed no debts at the time of his death; and that Charles Olere is justly indebted unto her in the further sum of $2,000 for the rent of the aforesaid property from the 7th of August, 1882, at the rate of $125 per annum.

The prayer of petitioner is, that defendants be condemned to pay her the sums above enumerated, and that she be recognized as owner in fee simple of the aforesaid property — without any demand being made for the annulment or reeision of the sale as either simulated or fraudulent.

In limine the defendant, by counsel, filed a motion to compel plaintiff to elect whether her action was a revocatory action, or one in nullity; and she thereupon elected to declare same an action for the-nullity of the sales mentioned.

Defendants then filed a peremptory exception of no cause of action and no right of action.

The defendants for answer deny that said property was acquired ihrough fraud or through an interposed party; and aver that same-was sold for cash, at public auction, in pursuance of an order of court to pay debts of the estate of Abadie; and that the proceeds thereof were distributed on the administrator’s account.

That said estate was hopelessly insolvent, the debts thereof amounting to a large sum over and above the value of its assets; and that the plaintiff was not entitled to have any legacy left her paid, until the-debts of the deceased had been first satisfied.

The principal defendant further avers that her husband having become the bona fide and lawful purchaser of said property for value at the time, long after the administrator’s final account had been filed' .and homologated, and he had been discharged from his trust, and the affairs of the succession had been wound up, the plaintiff is barred and estopped from attacking same, or asserting her ownership thereof.

She denies any responsibility or liability to the plaintiff for, or on account of said claims and accounts of the deceased, for the reason that same were worthless and uncollectible after diligent efforts had been made to realize upon them.

She further avers that the plaintiff has no standing in court to have the nullity of said sale decreed, because she did not tender back, nor offer to restore the amount of the purchase price paid for the property, and which was employed in the payment of debts of the succession, of which she claims to be a legatee.

In the alternative, the defendants set up a reconventional demand for the cost of betterments, taxes and insurance expended, aggregating the sum of three thousand dollars.

Upon the foregoing issues, the case was tried and a judgment rendered in favor of the defendants, rejecting the plaintiff’s demand, and from that judgment, the latter has appealed.

In this court, the defendants and appellees, by counsel, appear and answer the appeal, and pray that the judgment of the lower court be affirmed, and that the sum of fifty dollars be awarded for a frivolous . appeal.

From the evidence it appears, that Abadie died in 1882, leaving a will and some property, and particularly that described in the petition —the whole of the testator’s estate being donated to two legatees, one ■ of whom is the plaintiff.

The appraisement of the real estate which is described in the inventory, is $1,800, that of the movable effects is $326.50, and the rights and credits $1,645; the whole aggregating $3,771.50.

The testator was a physician.

The real estate was sold for cash,, under an order of court to pay debts, on the 7th of August, 1882; and the price bid therefor was the full amount of the appraisement in the inventory.

The tableau of debts of the deceased shows, that the amount of his indebtedness on open account was $704.87; and that the privileged charges against the estate aggregated $469.43. In addition to this he owed two notes of $600 each, payable respectively at twelve and eighteen months, to the order of Charles Olere, and they were secured by mortgage — the whole indebtedness aggregating the sum of $2,314.30.

This tableau was duly homologated by a judgment of the court, and the administrator was ordered to pay the debts enumerated upon same.

The evidence shows, that the open accounts due the deceased for medical attention and services were valueless and uncollectible — thus rendering the succession insolvent.

Consequently, in any view that can be taken of the matter, the plaintiff, asserting only the claim of a legatee, discloses no interest to be subserved by this suit; for, if the sale complained of as being a fraudulent simulation were annulled and the property restored to the succession, nothing could be accomplished thereby.

She would be compelled to restore the purchase price before she would be entitled to dispossess the vendee and purchaser at the. succession sale.

She is, also, confronted with the defendant’s reconventional demand of $3,000, expended in taxes, insurance, etc., since their purchases were made.

The sale having been made for cash which has been expended in the payment of debts by the administrator, in conformity with an order of court, cannot be treated as a simulation.

On the face of the papers the facts are against the plaintiff, as they show that Etienne Olere bought for $1,800, and sold for $2,000, making a clear profit of $200 on the transaction.

At the time of the sale to Etienne Olere, Charles Olere was the mortgage creditor of the deceased, Abadie, to the extent of about $1,400, and after the sale this mortgage was cancelled.

The judge a quo entertained the opinion that the plaintiff’s demand was unfounded and we concur in his conclusion.

The plaintiff having prosecuted only a devolutive appeal from the judgment rendered, a case of damages for a frivolous appeal is not made out.

Judgment affirmed.