author: Ludeling, C. J. Ludeling-, C. J., Morgan, J.,

text:
    No. 5521.
    Nicholas Burton et als. v. Charles Hicks et als.
    A motion to dismiss an appeal, to be entertained, must be filed within tliree judicial days after tbe return day.
    A defect in a certificate would be no cause to dismiss an appeal, tbe fault being attributable to tbe officer whose duty it is to make tbe certificate.
    A deputy clerk is an officer known to tbe law and is authorized to sign certificates.
    On tbe trial in tbe court# qua tbe defendants severally claimed in vain tbe right to challenge ten jurors under tbe act of 1855. If it was ever contemplated that several plaintiffs claiming different offices, could unite to bring one suit against several defendants, it is manifest from tbe unambiguous language of tbe law in regard to contested elections, that each defendant would have tbe right which was claimed and which was refused.
    Taking as true what tbe defendants admitted, to avoid a continuance: “That tbe election returns of tbe parish were not made out and sworn to as tbe law requires, and that tbe ballots for ward one will not show tbe same result as to tbe returns, this would not be sufficient to defeat tbe parish election. It has been often decided that tbe failure to comply with tbe directory clauses of an election law will not annul an election. Courts can not affix to tbe omission a consequence which tbe Legislature has not affixed.
    There is an essential difference between tbe act of voting and tbe police provisions to secure tbe evidence of tbe act. If tbe votes be deposited, tbe object of the election is attained, and its validity can not be affected by tbe non-observance oí tbe directory provisions.
    If tbe sworn statements be true, that tbe ballots and returns, in tbe ballot boxes which were called for and could not be procured, have been tampered with so as to render them unreliable as evidence, tbe result of tbe election as ascertained and announced by tbe commissioners of election at each precinct, might have been proved by tbe next best evidence in existence.
    Tbe irregularities shown by tbe evidence to have existed, resulted from a want of 'information on tbe part of tbe officers of tbe election, and said irregularities do not in any manner affect tbe result of tbe election in tbe parish.
    Tbe facttbat tbe ballot box, at one precinct, could not be seen by those voters who stood near tbe window, can not be a oause to annul tbe election.
    Tbe law does not authorize an election to be set aside, except for fraud, intimidation, violence or corruption, at or before,,tbe election, and then only when such fraud, violence, intimidation, etc., bad tbe effect to change tbe result of tbe election.
    It is not shown that tbe defendants bad any connection with tbe irregularities committed, or with any acts of fraud, or violence, if any were perpetrated.
    APPEAL from the Thirteenth Judicial District Court, parish of Carroll. Hough, J. Jury trial.

      O. H. Farrar and Julias Aroni, Montgomery & Felony, for plaintiffs and appellees. Leonard & Kennedy, JDeFrane & Austin, for defendants and appellants.
   On Motion to Dismiss.

Ludeling, C. J.

A motion to dismiss this appeal has been made, on tbe ground that the certificate to the transcript is signe t by the deputy clerk. The motion is refused for the following reasons:

First — Because the motion was not filed within three judicial days after the return day. 17 An. 21; 18 An. 191; 19 An. 276; 20 An. 30 ; 21 An. 329 ; 11 An. 545; 7 N. S. 271.

Second — Because a defect in a certificate would be no cause to dismiss an appeal, the fault being attributable to the officer, whose duty it is to make the certificate. Revised Statutes, section 36.

Third — Because a deputy clerk is an officer known to the law, and he is authorized to sign certificates. C. P. 782; 3 An. 247, Downs v. Tarkington ; 15 La. 33, Bank of Louisiana v. Watson.

On the Merits.

Ludeling-, C. J.,

Seven persons, who were candidates on the same ticket for different offices, to wit: Nicholas Burton for sheriff, M. Dubose for parish judge, and David King, C. E. Shearer, Jackson Snelling, Henry Price, and John Halloway for police jury, instituted this suit against the persons who were candidates for said offices on the other ticket at the election in Carroll parish in November last.

They allege that the election was null and void, “because of the various irregularities and illegalities in the appointment of commissioners to hold the election in the manner of holding it, and frauds committed by the commissioners at the various polling precincts, and the acts of other persons, interested in the election, in viola'ion of the statutes of this State and of the United States, known as the enforcement act, as follows,” to wit:

“That the commissioners were not selected from the different political.parties, nor were they of good standing; that said commissioners did not take the oath prescribed by law, nor did they examine the ballot boxes before commencing to receive votes; that the election in ward. No. 1 was not held at the proper place; that the election in said ward was held in a small room away from the public view of the voters; and a large number of the ballots or votes cast in said ward were not placed in the box in view of the voters, nor taken.from their hands by the commissioner receiving the ballots; that the commissioner, Jackson, who received the ballots, was seen to change several ballots placed in his hands, and deposit in the box tickets other than those handed him by the voters ; that Cain Sartain, a candidate, cast several different ballots at said election at said precinct; that the tally sheets of the votes cast at said election wore not closed and signed by six o’clock the day following the election ; that the same were changed after six o’clock on said day and made different irom what they were first made up alter the election ; that neither the tally sheets nor ballot box containing the ballots cast at said precinct have been deposited in the office of the clerk ot the district court, although Daniel Jackson, one of the commissioners, is himself clerk of said court.”

They further charge irregularities and fraud at the other precincts of the parish, and pray that the election be declared null and void. And they further pray that should the court decide that the election held at wards four and five, was valid, notwithstanding the irregularities and frauds complained of, and that the election was null and void at all the other precincts; that in that event, they be declared elected to the various offices for which they were candidates.

The defendants severally filed exceptions, stating that there was an improper joinder of plaintiffs and defendants; that several different plaintiffs were claiming different things from different defendants, in the same suit. Moss further pleaded that the court was without jurisdiction rations maleriw to entertain the suit as to his office, that of parish judge; and the candidates for police jury severally pleaded to the jurisdiction of the court, because the emoluments of the office did not exceed five hundred dollars.

These exceptions were overruled. On the trial, the defendants severally claimed the right to challenge ten jurors under the act of 1855. This was denied them, and they took a bill of exceptions to the ruling. If id was ever contemplated that several plaintiffs claiming different offices could unite to bring one suit against several defendants, it is manifest from the unambiguous language of the law in regard to contested elections, that each defendant would have the right, which was claimed and refused in the district court. Section 1429 of the Revised Statutes, treating of the trial of contested election cases, declares that, “in empanneling the jury each party shall be entitled to ten peremptory challenges.”

Another bill of exceptions was taken to the ruling of the judge a quo refusing to permit the defendants to prove by parol what the actual votes were which were cast at every precinct for each candidate. The circumstances under which the defendants offered the parol proof were as follows. After the trial had commenced, a rule was taken on the clerk of the court to produce the ballot boxes and tally sheets, which section 13 of the act of 1873 directs shall be delivered to the clerk. The clerk answered that they were not in his possession, but in the possession of R. R. Anderson, his deputy.

A rule was then taken against Anderson, but the coroner’s returns show that he could not be found in the parish, and that he had gone to New Orleans. Thereupon the plaintiffs applied for a continuance. In their application for a continuance they swore that they expected to prove by the production of said ballot boxes that the ballots and returns had been so tampered with that no election can be declared in said parish They subsequently made another affidavit, in which they state that they expect to prove “by the ballot boxes and returns * * were not made out and sworn to as the law requires ; and they will not show the same result as the ballots in the boxes.”

To avoid a continuance, the defendants admitted that the returns made out for the last election in this parish were not made out and sworn to as the law requires, and the ballots in the boxes for ward No. 1 will not show the same result as the returns.”

It seems to us that if the statements in the affidavits be true that the ballots and. returns in the ballot boxes called for have been.tampered with so as to render them unreliable as evidence, the result of the election as ascertained and announced by the commissioners of election at each precinct might have been proved by the next best evidence in existence.

The defendants are not charged with the irregularities or frauds complained of in conducting the election ; nor are they charged with having said boxes, nor with tampering with them. Under the circumstances, there are no presumptions against the defendants, and they had the same right that plaintiffs had to introduce the best evidence, which the nature of the case admitted of. But we do not perceive that the refusal of the judge injured the defendants, as the onus of proving that the election was null and void, or that they were elected, was upou the plaintiffs, and they have introduced no evidence to establish fraud, illegality or irregularity at the election, except as to ward No. 1 and ward No. 2, besides the admissions of defendants made as above stated. But they do not allege or attempt to prove that if the entire vote of wards two and one were thrown out they would be elected. They only claim that this result would be attained if all the wards in the parish, except wards Nos. 4 and 5, were rejected; thereby admitting that they were not elected.

As already stated, the only evidence offered by the plaintiff was the admissions aforesaid, and the testimony of witnesses as to what occurred in relation to the election at wards Nos. 1 and 2.

The only witness offered by plaintiff who testified in regard to ward No. 2 is E. P. Montgomery. He-says: “I was at the voting precinct of ward No. 2 of this parish on the second of November last; the tally list was closed and signed Tuesday night following the election, between eight and ten o’clock ; I was a commissioner of election at said precinct. All the tally sheets and ballots were locked up in the box after counting of the votes. The tally sheets were not signed that night. I did not sign the tally sheets at all.” On cross-examination he said, “ the reason I did not sign the tally sheets that night was because the commissioners did not think the law compelled them to do so; it was not on account of any unfairness or irregularity in the election at said polling precinct at the time of closing the polls that I did not sign them ; the tally list was correct at the time it was made out; we completed the list some time Tuesday night following the election between ten and eleven o’clock; I won’t be positive about the time, but it was after dark ; the election, the counting of the ballots, and the making out of the tally lists at said precinct was fair while I was present; there were no frauds or irregularities in the voting or counting of votes and making out of tally sheets at said precinct so far as I know; if there had been any, I would have been apt to have known it, for I watched very closely.”

When recalled, he stated : The commissioners did not, while I was with them, make out a list of all the persons voted for, the offices for which they were voted for, the number of votes received by each, and sign and swear to the same; I never did sign such a list; I don’t know that the box containing the ballots and tally lists was deposited with the clerk of the district court; we counted the votes an'd made a record of what each man received, and put down the names of each candidate and the offices for which they were voted, and the number of votes each man received; there were three such tally lists as above described made out by the commissioners; on closing the polls each commissioner swore to the number of votes polled; they did not swear to the returns above described in my presence.”

It is manifest that no court could hold that the election at that precinct was illegal, null and void.

In regard to what occurred at ward No. 1, the facts, as disclosed by the evidence, appear to be that the commissioners of election opened the polls at the door of a small house ; that a rail, which was placed across the door to keep the voters irom pressing against the table, upon which the ballot box stood, was broken by the pressure of the crowd, and the commissioners found it necessary to receive the ballots at a window of the same house. This window was between five and a half and seven feet high. Rhodes, a witness, swears the exact height to be five feet nine inches. That when the voter stood at the window he could not see the ballot box; but he could see the commissioners, and the box was in full view of those who stood a short distance from the window. It appears the officers of election and some of the candidates on both sides, were inside the house, near the ballot box. It further appears that those who desired to handed their ballots with their registration papers to the commissioner, who received them, and that the Dallots were deposited in the ballot box. It appears further that a large number of persons voted by putting their ballots and registration papers at the end of sticks and thus reached over the heads of those who stood between them and the window. The witnesses are not agreed about the number who thus voted. One witness.says about seventy-five, and another witness says about one hundred and eleven.

D. S. Yinson, a witness, swears as follows: “I observed nothing wrong, except the voting on sticks, and that was a new style to me; those voting on sticks were standing a distance from the window and reaching over the heads of others, who were close up to the window; I would have tried to vote in this way myself, if I could have got a stick ; those voting on a stick appeared to be in a hurry to vote.”

P. B. Rhodes testified as follows: “I was one of the commissioners •of election at the voting precinct No. 1 of this parish, at the last •general election ; N. Burton was there during the day;. I did not hear him make any objections to the way the election was conducted; I heard him say four days after the election that the election was fairly -conducted, except, in his opinion, I made a mistake of eleven ballots In counting off against him, and two persons that were not allowed to vote, he thought would have voted for him if they had been allowed to vote. He made no objection, at the election, or after the counting of the votes, that I heard; the exact hight of the window where •the ballot box was placed is five feet nine inches; no one was compelled to vote on sticks; those persons who were anxious to vote for fear of not having time to vote, got sticks and placed their ballots on the ends of them, and handed them up to the commissioner; the smallest man that I know of could vote by handing his ballot up to the commissioners with his hand.”

This testimony is corroborated by S. J. G-albreth, S. P. Austin, W. W. Banham and E. Meyer, and is not contradicted in any material parts by any witness.

E. M. Spann testifies that he was a commissioner at ward No. 1. He says: “ Mr. Jackson and myself came to Providence with the first ward box and deposited said box in the clerk’s office ; the clerk of the court, Mr. Jackson, gave me his receipt for the box; we then went •over to Mr. Lockey’s office, and I believe Mr. Jackson gave him a copy •of the returns; Mr. Lockey then demanded the box, and Mr. Jackson and myself both refused to give said box to him.” * * I left him •and Lockey talking about the box, and I went down stairs; I saw Mr. Jackson afterward and asked him what he had done with the box, and •he told me he had deposited it with Mr. Anderson for safe keeping, ■and held his receipt for the same; this was Wednesday, after the election, about ten o’clock; the tally lists of ward one was in the box; the •ballots were in the box also.”

E. Meyer swears he was Deputy United States Supervisor at said precinct; I assisted in making out a list of the votes cast; the tally list was closed and signed about seven o’clock Tuesday evening; I left two of the tally sheets with the commissioners and I kept one ; I •was present from the time of my arrival until closing of the polls ; was .at the box all the time, except about half an hour at two different times; I watched the progress of the election closely ; had there been any fraud or malpractice in depositing the ballots in the box I would have seen it; there was no fraud nor malpractice in the voting, so far •as I know of; I did not see Mr. Jackson put in any wrong ballot, except that one voter handed up on a stick two tickets with his registration paper, which dropped on the floor, and Jackson put in only one of the two; one of the tickets was a red and one was a white one, and he put in the red ticket.

' Mr. Jackson swears that “the election was carried on fairer than I ever saw it before; Mr. Burton, the candidate for sheriff, was present during the entire day, he was in the room all the time; I heard no complaint made by him whatever; he was there when we commenced counting the votes until we closed and' signed one of the tally lists, atad áfterward erased his name.”

'This is the sum and substance of the testimony on the subject of voting with sticks arid at the high window, and of the irregularities at said -election, except the testimony of two witnesses offered by the plaintiffs in regard to other illegalities.

Henry Atkins testifies as follows: I saw cine man cast more than one ballot on that day; he cast three to my knowledge, aridT asked him why he did it, and he said he was doing it for some other persons.

On cross-examination, he states: “The man who voted several times was Cain Sartain; Cain Sartain told me they were for other persons ; of these ballots the commissioners called names and passed back the registration paper's, and did not call Cain Sartain’s name ; I handed in tickets the same' as Sartain and the commissioners refused until I called their remembrance to Sartain, and they then allowed me to do the same ; I was a candidate on the opposite ticket.”

Caesar Johnson testified: “I saw ballots handed up very high; I could not see where they went to with the papers that were returned back; some had money returned with them ; some had one, some had two, and some three bills; I heard two cry out, Oh, Jackson greenbacks ; and when the papers came back they had greenbacks with them.” If testimony so absurd and incredible could demand any notice, it is sufficient to say that it is contradicted by nearly every witness who testified in regard to what occurred at that precinct. Mr. Burton, one of the plaintiffs, was at that precinct and near the box, and he has testified in this case, but he does not say a word about bribery; his testimony is in substance that he saw Mr. Jackson change one vote, -and that the window was six feet ten inches high where he measured it.

It is evident from the foregoing evidence that the irregularities shown thereby resulted from a want-of information on the part of the officers of the election, and that said irregularities did not in any manner affect the result of the election.

In regard to ward two the irregularities seem to be that one of the commissioners did not sign the returns, because he thought it was not necessary, and the correctness of the returns were not sworn to in the presence of all the commissioners and the counting of the votes was not completed within twenty-four hours after the election.

At ward one the voting on sticks and at a high window, where the voter had to reach up to hand his ballot to the commissioner, was certainly novel; but the excuse for this is given in the foregoing evidence, and the.evidence leaves no doubt on our minds that the ballots were fairly deposited in the ballot box, that no fraud was perpetrated at the election, and that the votes were honestly counted.

The fact that the ballot box could not be seen by those voters, who stood near the window, can not be a cause to annul the election. In Augustin v. Eggleston, 12 An. 366, this court said: “ The mere position of an election box, without any resulting injury, does not avoid án election.”

Now, conceding what the defendants admitted, to avoid a continuance, that the returns, made out for the election in this parish, were not made out and sworn to as the law requires, and that the ballots for ward one will not show the same result as the returns, can that defeat an election in the parish? It has been often decided that the failure to comply with the directory clauses of an election law will not annul an election. Courts can not affix to the omission a consequence which the Legislature has not affixed. 9 An. 577; 10 An. 732; act of 1873, p. 15.

There is an essential difference between the act of voting and the police provisions to secure the evidence of the act. If the votes be deposited, the object of the election is attained, and its validity can not be affected by the non-observance of the directory provisions. 13 An. 801.

The act of 1873, No. 98, provides for the punishment of those who' violate its provisions, and the criminal courts of the State have cognizance of such matters. The law does not authorize the election to be set aside, except for fraud, intimidation, violence or corruption, at or before the election, and then only when such fraud, violence, intimidation, etc., had the effect to change the result of the election.” Errors of judgment are inevitable; but fraud, intimidation and violence the law can and should protect against.” Cooley’s Limitations, 621. The same author says: “When an election is thus rendered irregular, whether the irregularity shall avoid it or not must depend generally upon the effect the irregularity may have had in obstructing the complete expression of the popular will, or the production of satisfactory evidence thereof. Election statutes are to be tested like other statutes, but with a leaning to liberality, in view of the great public purposes which they accomplish; and except where they specifically provide that a thing shall be done in the manner indicated and not otherwise, their provisions, designed merely for the information and guidance of the officers, must be regarded as directory only, and the election will not be defeated by a failure to comply with them, provided the irregularity has not hindered any one who was entitled from exercising the right of suffrage, or rendered doubtful the evidences from which the result was to be declared.” 618. And it was said in People v. Cook, 14 Barb. 259, and 8 N. S. 67, “that any irregularity in conducting an election which does not deprive a legal voter of his vote, or admit a disqualified voter to vote, or cast uncertainty on the result, and has not been occasioned by the agency of a party seeking to derive a benefit from it, should be overlooked in a proceeding to try the right to an office depending on such election. This rule is an eminently proper one, and it furnishes a very satisfactory test as to what is essential and what is not in election laws. And when a party contests an election on the ground of these or any similar irregularities, he ought to aver and be able to show that the result was affected by them.” Cooley’s C. Lim. 619; 13 An. 175.

The plaintiffs do not allege that they were elected; they do not allege or attempt to prove that the irregularities complained of changed the result of the election, and when the defendants offered to prove what the actual vote was at each precinct in the parish, as shown by the count of the votes at the polls, the plaintiffs objected on the ground that the ballot boxes were not produced, and this objection was sustained, notwithstanding the facts that the plaintiffs had alleged in their petition that the ballot, boxes had not been returned tp and kept in the clerk’s office as directed by law, and that plaintiffs had sworn that the ballot boxes had been so tampered with and the ballots so changed or altered as to render them unreliable.

Judge Cooley says : “ If, however, the ballots have not been kept as required by law, and surrounded by such securities as- the law has prescribed with a view to their safe preservation as the best evidence of the election, it would seem that they should not be received in evidence at all,” etc., 625. 14 Mich. 320,

The rejection of other evidence on account of the absence of the ballots, which would not be legal evidence if in court, was certainly very strange.

The conclusion we have come to renders it unnecessary to pass upon the exceptions of the defendants.

It is therefore ordered and adjudged that the verdict of the jury be set aside, that the judgment of the lower court be annulled, and that the plaintiffs’ suit be dismissed with costs.

Morgan, J.,

dissenting. The uncontradicted statement of Mr. Farrar, one of the counsel for the appellees in the brief, is that the record was filed on Saturday; that he sought to examine it on Monday, when he found it had been taken out of the clerk’s office, and that it was not returned until more than three judicial days after the return day.

The custom of allowing counsel to take the records of cases pending an appeal from the clerk’s office is, in my opinion, a vicious one; but as it has been tolerated by the court, I do not think that it should prejudice a party’s rights. The appellee can not discover what irregularities there are in a transcript unless he has access to the transcript. The ruling of the court, in my opinion, so long as this practice continues to be tolerated, gives to every appellant the power to prevent his appeal being dismissed. He controls the record until the day upon which he is forced by law to file it. He then files it. Under the implied consent of the court, he removes it immediately. He does not return it until three judicial days have elapsed. It may be filled with irregularities and illegalities, and yet the appellee’s motion to have it dismissed will not be listened to because he speaks too late.

It seems to me that the court which, by its tolerance, permits an appellee to be placed in such a position, should turn a deaf ear to the appellant, under such a state of facts, when he says that the motion to dismiss was not made in time.

I do not propose to cavil at the ruling of the majority upon the second and third grounds, which they assign for refusing to dismiss the appeal. The questions involved are, in my opinion, too serious to allow, their being shuffled off upon mere technicalities. I prefer to take them as I find them, and to express my opinion upon them as I think they should be decided upon the principles of law and right.

And for the same reason I pass over the question as to the misjoinder of parties; the exceptions filed by the defendants, the question of their having been waived by their answers, and the right claimed by them to challenge ten jurors each.

It is to be observed that the defendants do not pretend that the election was conducted in strict compliance with the requirements of the law. They deny, it is true, the allegations in the petition, but they only aver that the election was “substantially legal and fair in every respect.”

In my opinion it was illegal and foul from the beginning to the end. The law provides that it shall be the duty of the commissioners of election to receive the ballots of all legal voters who shall offer to vote, and deposit the same in the ballot box to be provided for that purpose; the commissioners are to deposit the ballot of each voter in the ballot box in full view of the voter- himself. Acts 1873, section 9 p. 17. In all cases the vote of the person offering to vote is to be taken from the hand of the voter by one of the commissioners of election ; section 10. The votes are to be counted by the commissioners at each voting place immediately after closing the election, and without moving the boxes from the place where the votes were received, and the counting must be done in the presence of any bystander or citizen who may be present. These provisions of the law are not only directory, they are peremptory, and they were enacted, I think, in. order that the people should be assured of a fair ballot, a fair count* and an honest return.

Now what are the facts 9 In so far as poll No. I at least is con" cerned, the commissioners of election occupied a room the window of which was more than six feet from the ground. It was through this window that the ballots were handed to the commissioners. The window itself was barricaded with slats, running up and down, some three inches apart. A very large number of the ballots were handed to the commissioners, attached by the voters to a long pole; no voter who was on the outside of the room could deposit his own ballot in the box provided for that purpose, or see that it was deposited there; instances occurred where voters, when they handed up their ballots, called out for “greenbacks” in return, and got them; the greenbacks replacing the ballot on the end of the pole. A majority of the court seems to consider that this portion of the testimony is absurd and incredible, and that it is contradicted by nearly every witness who testified in regard to what occurred at that precinct; I have examined the testimony of every witness whose evidence is in the record, and I do not find it contradicted. If denied at all, it is a negative denial, that is, the witness did not see it. Certainly, witnesses testify that everything was regular; that the election was a fair one, and that every thing was conducted properly. But the position of the ballot box, the manner of voting, etc., is testified to by every witness, and when men tell me that every thing was fair, and in. the same breath say that two opposing cadidates each voted several times, under the pretense that they were voting other persons’ ballots, and that one did it because the other did, I put no faith in their notions of fairness. And when commissioners of elections, under whose eyes such proceedings were carried on, tell me that there were no irregularities at their polls, I am forced to say that I do not believe them. A majority of the court seems to think that these were mere irregularities resulting from a want of information on the part of the officers of the election. In my opinion they are criminalities for which they should be punished, and which renders their acts void.

When the polls closed the votes were not counted according to law. The ballot boxes in which the ballots were placed, were given to the clerk of the court, their proper custodian. On the trial, plaintiffs obtained a subpena duces tecum upon the clerk ordering him to produce them. He answered that they were not in his possession; that he had given them to R. R. Anderson, a special deputy appointed by him for that purpose. A subpena then issued to Anderson, the return upon which was that he could not be found. When this return was made, plaintiffs moved for a continuance. Thereupon the defendants admitted that the returns made out for the last election in this parish were not made out and sworn to as the law requires, and the ballots in the boxes from ward No. 1 will'not show the same results as the returns.” Plaintiffs rested their case. Defendants thep attempted to prove the result of the election by parol, and in order to lay a foundation therefor examined David Jackson, who swore that he had made diligent search for the boxes and returns, but had not succeeded in finding them ; that he had looked in the only place where he had any idea they could have been placed; that he had inquired of different parties whether they knew any thing about where the ballot boxes and returns were, and that he had done every thing since the commencement of the trial to get the boxes and returns. Now Jackson was the clerk of the court, and was by law the custodian of these ballot boxes and returns. He had himself given them to Anderson. On his cross-examination he says he supposes they were in Anderson’s possession, and that he had not asked Anderson for them since the commencement of the suit. Thus it appears that he asked every one about them except the only man in whose keeping they had been put. The possession by Anderson of these boxes was the possession of Jackson, and I think it was trifling with the court to say that he could not produce them or cause them to be produced. There was a process by which the defendants, after his testimony was given, could have forced the production of these boxes. They did not see fit to avail themselves of it, and they were not, I think, entitled to resort to secondary evidence. Indeed, what object would they have in producing boxes which, according to their own admissions, would show that the returns were not properly made. And what becomes of their assertion that the election was a fair one in the face of their admission that the ballots in the boxes of ward No. 1 would not show the same results as the returns.

In my opinion these admissions destroy the defendants’ case. How is the result of any election to be known except by the returns of the proper officers appointed for that purpose ? And who can say that a fair election has been held when it is admitted that the ballots cast would not show the same result as the returns'? I am not here contending that every irregularity in the conduct of an election will nullify the election, or that a police law with regard to the manner in which an election is to be held, if unconstitutional, vitiates the election, which was the question before the court in Saucier’s case. 13 An. 301. Nor do I contest the principle laid down in Cooley and cited by the Chief Justice in his opinion, that election statutes are to be tested like other statutes, but with a leaning to liberality, in view of the great public purposes which they accomplish, but I do say that where the law specifically provides that an election shall be held in a particular manner and not otherwise, as, in my opinion, the election laws of this State do, it must be held in accordance with the law, and that if the ballots have not been kept as required by law, and surrounded by such securities as the law has prescribed with a view to their safe preservation as the best evidence of the election, it is impossible to determine who of the candidates before the people were legally elected. Here it is admitted that the requirements of the law were not complied with.

A jury, taken from the body of the people and selected according to law, themselves forming a portion of the voters of the parish, have declared that there was no legal election in the parish, and the testimony in the record satisfies me that their conclusion was a just and proper one.

I think the judgment of the district court, which sets aside the election, should be affirmed.

Wyly, J. I dissent in this case, and will file my reasons hereafter.

Rehearing refused.


source: Caselaw Access Project

author: Wyly, J.

license: Public Domain

text:
    No. 5271.
    City of New Orleans v. The People’s Insurance Company.
    Because the defendant is required to pay a license, it is no reason "why property owned by it should not be taxed like other property of the city of New Orleans.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      S. P. Blanc, assistant city attorney, for plaintiff and appellee. Braugfm, Buck & Dinkelspiel, for defendant and appellant.
   Wyly, J.

The defendant, the People’s Insurance Company, appeals from the judgment obtained against it by the City of New Orleans for $957 for taxes on its capital for the year 1873.

The defense is that there is no law or ordinance authorizing the tax on the capital stock of an insurance company, and if any, it is unconstitutional.

Article 118 of the constitution requires taxation to be equal and uniform, and it specially authorizes the General Assembly to exempt from taxation property actually used for church, school or charitable purposes. This special authority to exempt property used for certain purposes, has been held by this court to carry with it an implied inhibition from exempting from taxation property used for other purposes, that is to say, property not actually used for church, school or charitable purposes.

We find in the record authority for collecting the tax, and that authority is not repugnant to the constitution. Because the defendant is required to pay a license, is no reason why property owned by it should not be taxed like other property by the city of New Orleans. See City of New Orleans v. Salamander Insurance Company, 25 Ah. 650.

Judgment affirmed.


author: Howell, J. Mor&an, J.

text:
    No. 5733.
    T. S. Serrill v. The City of New Orleans.
    It is no part of the duty of the clerk of the Finance Department to execute or pay judgments against the city of New Orleans, so as to bind it, and particularly when said city had taken a suspensive appeal of which-the clerk was not aware. It is no reason to dismiss the appeal, that the defendant and appellant has acquiesced in the judgment by receiving payment of taxes from the plaintiff in accordance with said judgment.
    Absence is no excuse for the noncompliance with the requirements of the law and for not objecting, within the proper time, to the assessment roll.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      H. H. Walsh, for plaintiff and appellee. S. P. Blame, assistant city attorney, for defendant and appellant.
   On Motion to Dismiss.

Howell, J.

A motion is made to dismiss this appeal on the ground that the defendant and appellant has voluntarily accepted and acquiesced in the judgment appealed from, and the appellee has paid his assessment as fixed by said judgment.

It appears that the plaintiff took a rule on the city of New Orleans to have the assessment of his property for taxation reduced; that the rule was made absolute, and the assessment reduced from $75,000 to $20,000; that a suspensive appeal was taken by the city; that the plaintiff procured a copy of the judgment, presented it to a clerk in the Department of Accounts and offered to pay; that he was told to call again, which he did in a day or two, and the usual form of bill for taxes at the reduced assessment was furnished in the Finance Department, and he paid it; but the clerk swears that he was not aware that an appeal had been taken, and no notice of the matter seems to have been given to the mayor or city attorney.

Under these circumstances the city is not bound by the action of the clerk. It is no part of the duty of this clerk to execute or pay judgments against the city, so as to bind the city as claimed.

Motion refused.

On the Merits.

Mor&an, J.

No objection is made to the mode of correcting the assessment.

The only testimony in support of the plaintiff is his own evidence, and this, we think, condemns him.

He says he was abroad when the assessment rolls were opened for correction, and did not return until they were closed.

It is evident, then, that he was assessed and that his assessment was placed upon the assessment roll. He should have made his objection to the assessment to the assessment board when the rolls were made out, within the time given him by the law.

His absence “ abroad ” is no excuse for his not having complied with the requirements of the law.

It is therefore ordered, adjudged aud decreed that the judgment of the district court be avoided, annulled and reversed, and that the rule herein taken be dismissed at plaintiff’s costs.


text:
    No. 5572.
    State of Louisiana ex rel. A. P. Field, Attorney General, and J. J. Hayes v. City of New Orleans et als.
    Tli© State had the right to pass act No. 60 of the acts of 1872, styled “An Act to establish a hospital for small pox, and other contagious diseases,” and in the exercise of its police power to require all indigent cases of small pox or other contagious diseases to be sent by the city of New Orleans to the Luzenburg Hospital, at the expense of said city, and the defendant can be enjoined from contravening this law.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      A. P. Field, Attorney General, T. Whm'ton Oollens and Shackleford, for relator and appellant. Samuel P. Blanc, assistant city attorney, hacer/ & Butler, for defendants and appellees.
   Wyly, J.

The plaintiffs enjoined the city of New Orleans from sending or causing to be sent any indigent persons sick with small pox or other contagious diseases to any hospital or place other than the Luzenburg Hospital. The court gave judgment for the defendant dissolving the injunction and plaintiffs have appealed. Act No. 60 of the acts of 1872, styled An Act to establish an hospital for small pox and other contagious diseases,” provides : That all indigent cases of small pox, or other diseases reported contagious, in want of or making application for hospital aid or care, shall be sent to the hospital designated in this act (the Luzenburg Hospital) at the expense of the city of New Orleans, as usual and at the usual per diem.” It also makes it unlawful for the city or any of its officers to send such indigent cases to any other place, or to violate the provisions of this act and a penalty is imposed against the transgression of said law. That the State had the right to pass the act, and in the exercise of its police power to require all indigent cases of small pox or other contagious diseases to be sent by the city of New Orleans to the Luzenburg Hospital can not be doubted; and that the defendant can be enjoined from contravening this law is equally certain.

It is therefore ordered that the judgment appealed from be annulled, and it is decreed that the injunction herein be perpetuated at the costs of the defendant in both courts.

Rehearing refused.


author: Ludeling, C. J. Wyly, J.,

text:
    No. 4353.
    Thomas P. Leathers v. John W. Cannon and Jesse K. Bell.
    This suit commenced by attachment. The proof is, that Jesse K. Bell leased his dwelling house and furniture; and that, declaring that it was his intention to be absent from the State for two years or longer, traveling for pleasure and health, he left the State without leaving any agent upon whom citation could be served. Shortly after he left, this suit was brought. At that time it would have been impossible to bring him into court except through his property. Under these circumstances the attachment was properly issued. The fact that he did not absent himself as long as he had expected did not affect tlie attachment previously issued.
    APPEAL from the Fifth District Court, parish of Orleans. Lecmmont, J.

      Randolph, Singleton & Browne, for plaintiff and appellee. R. H. Marr, for defendants and appellants.
   Ludeling, C. J.

The plaintiff sues the defendants for the sum of $3100, in solido. The suit was commenced by attachments against both defendants.

It appears from the record that Cannon and Bell contracted with the government of the United States to carry the mails between New Orleans and Vicksburg twice a week for $5000 per quarter. Subsequently, they agreed that Thomas P. Leathers should take the place of Bell, carrying the mails once a week and receiving half the contract price. The contract money seems to have been collected through the banks and remitted to the firm of Kennett & Bell, of which Jesse K. Bell was then a member. Cannon never received any more of the money than his share, under the contract. It is manifest, therefore, that under the facts above stated, Cannon is not liable to the plaintiff, and the demand against him should be rejected, with costs.

As to Bell, his liability is not disputed; the controversy is as to the amount due.

The evidence satisfies us that the account or statement rendered by the defendant Bell is correct, except as to the fifty-seven commissions. There was no agreement to pay commissions. C. C. 2991. These commissions retained on previous collections amount to $375, which, added to $2419 91, make $2794 91; for which there should be judgment against Jesse K. Bell.

The appellee has asked us to amend the judgment dissolving the attachment as to Jesse K. Bell, and we are of opinion that the judgment should be so amended. The proof is, that Jesse K. Bell leased his dwelling house and furniture, and declaring that it was his intention to be absent from the State for two years or longer, traveling for pleasure and health, he left the State without leaving any agent upon whom citation could be served. Shortly after he left, this suit was brought. At that time it would have been impossible to bring him him into court except through his property; and, we think, under the circumstances the attachment was properly issued. The fact that he did not absent himself so long as he expected, did not affect the attachment previously issued.

It is therefore ordered and adjudged that the judgment of the lower court be set aside, and that there be judgment in favor of the plaintiff against Jesse K. Bell for $2794 91, with legal interest from judicial demand, and a lien and privilege on the property of Bell attached and costs in the lower court; and that there be judgment in favor of John W. Cannon against Thomas P. Leathers, rejecting his demand with costs. The costs of appeal to be paid by the appellee.

Wyly, J.,

dissenting. The harsh remedy of attachment this court has never permitted to be applied to other cases than those specified by law. An attachment will lie when the debtor is about to leave the State permanently. C. P. 240. It will not lie when he is only about to absent himself temporarily. Here Bell was only making a trip to Europe, expecting to be absent for the period of two years. He, however, returned within four months. For many years his domicile has been in this city, and there is nothing connected with this trip to Europe calculated to produce the impression' on any one that he was-leaving the State permanently. His property was here and there'was not the slightest foundation for the belief that he was about to change his domicile. I dissent.

Rehearing refused.


author: Howell, J.

text:
    No. 5671.
    Successions of Treville Daigle and Mary Jane Roddy, his wife.
    This appeal has been taken and brought up, and the fact that it is designated as a suspensive appeal is not a cause for dismissal, on the ground that it is from a judgment on an opposition to the appointment of an administrator, which the law does not allow. There is no objection to the sufficiency of the appeal bond, which is for a sum fixed by the court, or the right to an appeal from the judgment as a devolutive appeal.
    Conceding that there was in this case such a contestation for the administration of the estate of the deceased as to authorize the appointment of the public administrator to administer until the final decree determining the rights of the respective claimants, as provided by section two of act 87 of the session of 1870, the judge erred in giving the permanent administration to him, as this is not a case in which the public administrator could be appointed, the heirs being present and represented. When the major heir failed to furnish bond and qualify, the tutor of the other heir should have been appointed.
    A APPEAL from the Parish Court, parish of East Baton Rouge. Davis, J.

      J. & G. W. Burgess, for E. Cousinard, appellant. B. W. Bobertson, for Mrs. Willoughby, appellee.
   Howell, J.

A motion is made to dismiss this appeal, because it is a suspensive appeal irom a judgment on an opposition to the appointment of an administrator, which the law does not allow.

The appeal has been taken and brought up, and the fact that it is designated as a suspensive appeal is not a cause for dismissal. There is no objection to the sufficiency of the appeal bond, which is for a sum fixed by the court, or the right to an appeal from the judgment as a devolutive appeal.

The motion is refused.

The appellant, Ed. Cousinard, as dative tutor of the minor Mary S. Daigle, applied for letters of administration of the successions of her deceased parents. Mary W. Willoughby, daughter of Treville Daigle by a previous marriage, opposed this application ; asked that she, with her husband, be appointed to administer, and that in case they be unable to give bond, the public administrator be appointed, and that he be appointed provisionally pending the contest. The parish judge granted the order for the provisional appointment. This occurred in November, 1873.

On the second of January, 1874, Cousinard filed a motion to fix a day by which Mr. and Mrs. Willoughby should furnish bond and qualify, and, in default thereof, that he be appointed, as claimed in his original application, and that the order appointing the public administrator be rescinded. The judge fixed the first Monday of the next term (February) as the date by which they should comply, and, in default, show cause why Cousinard should not be appointed, and ordered the parties to be notified. On the eighteenth of February Mrs. Willoughby filed the plea of lis pendens, and again averred that if she could not furnish bond the public administrator was entitled to retain the administratiou in preference to Cousinard. On the trial of the issue thus formed, the judge rendered judgment authorizing the public administrator to administer the said successions, the major heir, Mrs. Willoughby, failing to give bond.

From this judgment Cousinard appealed.

Conceding that there was such a contestation for the administration as to authorize the appointment of the public administrator to administer until the final decree determining the rights of the respective claimants, as provided by section-two of act 87 of 1870, the judge erred in giving the permanent administration to him, as this is not a case in which the public administrator could be so appointed, the heirs being present and represented. When the major heir failed to furnish bond .and qualify, the tutor of the other heir should have been appointed.

It is therefore ordered that the judgment appealed from be reversed, and that Edward Cousinard be appointed and authorized to administer the successions of Treville Daigle and Mary J. Roddy, his wife, upon complying with the requisites of the law; co3ts to be paid by the appellee.


author: Ludei.ing, C. J.

text:
    No. 5512.
    George D. Pritchett v. Mechanics and Traders’ Insurance Company. Mrs. Sarah C. Lane, Intervenor.
    Olarlr, as the agent of Mrs. Lane, Laving entered into a contract of assurance with defendant and paid the premium with her means, could not direct the insurance money to he paid to his own creditor; it belonged to his principal.
    APPEAL from the Superior District Court, parish of Orleans. Hcm1tins, J.

      Samuel B. and O. L. Wallcer, for plaintiff and appellant. F. W. Huntington, for defendant and appellee. H. H. Farrar, for intervenor and appellee.
   Ludei.ing, C. J.

This suit is for $2,000, insurance on a loss by fire. The material portions of the policy is as follows :

“The Mechanics & Traders’ Insurance Company * * do insure Mrs. Sarah C. Lane against loss or damage by fire to the amount of two thousand dollars on the frame shingled roof gin house situated on Oak Grove plantation, Madison parish, $1000; on machinery and appurtenances in same $1000, subject to three-fourth country clause.

Loss on machinery, if any, payable to the extent of two thousand dollars to George D. Pritchett.”

The defendant admits its liability for $1518 75. The only question for decision is to whom shall the company pay, to Mrs. Lane or to Mr. Pritchett ?

The evidence shows that the plantation belonged to Mrs. Lane, that she had leased it to J. G-. Clark, who owned the machinery in the gin, which he .had purchased from Pritchett, and for which he owed the price, evidenced by a note. The lessee was required to keep the gin insured for the benefit of the lessor, and deduct from the rents due the premium; and Clark, as the agent of Mrs. Lane, entered into the contract of assurance aforesaid with the defendant, and paid the pre" mium with her means. He could not direct the insurance money to be paid to his own creditor — it belonged to his principal. 1 La. 220.

It is therefore ordered and adjudged that the judgment of the lower court be affirmed with costs of appeal.

Rehearing refused.


author: Morgan, J.

text:
    No. 5270.
    City of New Orleans v. Germania Insurance Company.
    This case does not differ from the one of the City of New Orleans v. The Salamander Instr ranee Company, reported in the 25th An. This court gave to that case the most attentive and careful consideration, and does not see any reason for changing, in this instance, the conclusions arrived at in said Salamander controversy.
    APPEAL from the Superior District Court, parish of Orleans. HawIcins, J.

      8. P. Blanc, assistant city attorney, for plaintiff and appellee. Braughn & Bucle and JDinlcelsjpiel, for defendant and appellant.
   Morgan, J.

This case does not differ from the one of the City of New Orleans v. The Salamander Insurance Company, 25 An. 650.

Counsel for appellant admit that if that case stands this appeal falls. He contends, however, that it is not founded on good law.

We gave the case when it was first presented, and afterward on an application for a rehearing, our careful consideration. We have not been convinced that the conclusions we then came to were erroneous.

Judgment affirmed.

There was no session of the Supreme Court .of Louisiana at Opelou-Bas in June 1875.


text:
    No. 580.
    James Marks v. C. C. Martin.

    By the confirmation by Congress, on the third of March, 1857, of the selections made by the State of lands guanted to her by the act of Congress, approved March 2,1849, and the act approved September 28, 1850, and by the act of the State No. 104, of the acts of 1871, confirming all sales and locations of public lands made by the State from the first day of January, 1861 to fourteenth October, 1864, the land in controversy, in this instance, was severed from the public domain, and the subsequent grant thereof by the United States in no manner impaired or defeated the title previously acquired by the State and transferred to plaintiff.
    The position taken by defendant that the land department decided the land to belong to him, and that their action precludes the investigation and determination of the case by this court, is unfounded.
    The officers of the land department may adjudicate the title of the United States, and to that extent the adjudication is- final. It is not for this court, or any other, to interfere with the discretion of the land officers of the United States in their transfer to whomsoever they may choose of the title of the United States to lands. But if the United States, at the moment of the adjudication, had no title to the land in question, this action of the officers of the land department gave the defendant none, and the question whether the United States had any title at the time of the adjudication, is clearly a question for the courts of justice, and not for the officers of the land department to decide.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      Land & Taylor, for plaintiff and appellee. W. JD. WyUe and Henderson, for defendant and appellant.

      Carried "by writ of error to the Supreme Court of tlie United States.

   Wyly, J.

Plaintiff brought this petitory action for the recovery of a tract of land known as the southwest quarter of sectiou seven, township twenty, range fourteen, lying in the parish of Caddo.

There was judgment in his favor and defendants appeal.

The land in question was selected by the State on the eighteenth May, 1852, under the provisions of the act of Congress, approved September 28, 1850, granting swamp and overflowed lands to the State. The same land was also subsequently selected by the State under act of Congress, approved March 2, 1849. The selections made by the State under said grants were confirmed by act of Congress, approved Inarch 3, 1857, entitled “An Act to confirm to the several States the swamp and overflowed lands selected under the act of September 28, 1850, and the act of the second March, 1849.”

Plaintiff’s vendor, James E. Wood, bought this land from the State in February, 1862, and the title was confirmed by the State by act 104 of the acts of 1871, an act confirming all sales and locations of public lands made by the State from the first day of January, 1861, to October 14,1864. Plaintiff acquired by deed from Wood, and shows a regular chain of title from the United States to the land in question.

On the other hand, the defendant shows a purchase and patent for this land from the United States long after the selection by the State and the confirmation thereof by the act of Congress, approved March 2,1857.

By this confirmation of the selections made by the State under the grants referred to, this land was severed from the public domain, and the subsequent grant thereof by the United States in no manner impaired or defeated the title previously acquired by the State. 11 La. 582; 9 An. 102; 13 Pet. 498. We regard the title of plaintiff as a good one, and conclude that he is the lawful owner of the land.

The position taken by defendant that the land department decided the land to belong to him, and their action precludes the investigation and determination of the case by this court, is unfounded. The precise question was decided by this court adversely to this view of defendant in a similar case, to wit: The case of Copely v. Dinkgrave, 26 An., not reported. It was there held that the action of the officers of the laud department adjudicated the title of the United States, and to that extent the adjudication was final. It is not for this court or any other to interfere with the discretion of the land officers of the United States, in their transfer to whomsoever they may choose, of the title of the United States to land. But if the United States at the moment of the adjudication had no title to the land in question, this action of the officers of the land department gave the defendant none. And the question whether the United States had any title at the time of the adjudication, is a question for the courts of justice, clearly, and not for the officers of the land department to decide. G-arland v. Wynn, 20 Howard 6; 1 Peters 212; 9 Howard 328; 14 Howard'377; 18 Howard 44; 4 R. 79; 13 An. 356; 20 An. 433.

It is therefore ordered that the judgment herein in favor of plaintiff be affirmed with costs.

Rehearing refused.


author: Morgan, J. Wyly, J. Morgan, J., Ltjdeling, C. J.,

text:
    No. 512.
    Thomas B. Lee v. R. C. Cummings and Paulina Pickett. Charles E. Alter et als. Intervenors.
    On sixth February, 1857, Mrs. Pickett conveyed to Cummings the usufruct for life of the Chalk Level plantation by act under private signature. On twentieth November, 1865, Cummings mortgaged to Mrs. Pickett the Chalk Level plantation, A. H. Leonard accepting the mortgage as agent of Mrs. Pickett, who thereby, it is alleged, as well as those who might claim under her, was estopped from denying Cummings' title to said plantation, because she had accepted a mortgage from him and thus tacitly acknowledged him as owner thereof. On the twenty-fourth of November, 1866, Alter recorded a judgment which he had obtained against Cummings in the parish of Bossier. On third July, 1866, Mrs. Pickett mortgaged the Chalk Level plantation to Lee to secure ten notes for $10,000 each.
    On the second September, 1866, Mrs. Pickett, hy act under private signature, renounced in favor of Lee the priority of her mortgage acquired from Cummings.
    On the seventh of December, 1872, the Chalk Level plantation being sold at the suit of Lee and purchased by the Union Bank, the proceeds of this sale are now the subject of this controversy.
    Prior to the sale, the Citizens’ Bank, the Union Bank and Mary B. Conner had filed their opposition, alleging that they held notes secured in the same mortgage from Mrs, Pickett to Lee, which said notes Lee had indorsed to them and therefore they were entitled to be paid by preference over Lee out of the proceeds of the sale of the mortgaged property. Alter also filed a third opposition setting up his mortgage rights.
    The inquiry is limited to the validity and extent of Alter’s rights as against plaintiff and the opponents, the Citizens’ Bank, the Union Bank, and Mary B. Conner, in relation to the proceeds of the sale.
    Cummings had no title from Mrs. Pickett which had effect as to third persons, because none was recorded in the book of conveyances in the recorder’s office of the parish of Bossier. It was not disclosed to the public, when the mortgage of Mrs. Pickett to Lee was granted, and there is no evidence that it has ever been disclosed by registry in the parish of Bossier, where the Chalk Level plantation is situated. The registry in the mortgage book would be good for a mortgage, hut would be no registry for a title. Therefore the mortgage granted by Mrs. Pickett on the second of July, 1866, to Lee on the Chalk Level plantation, the title of which stood on the public records in her name, is not defeated hy the judicial mortgage of Alter against Cummings.
    As mortgagee of the usufruct which Mrs. Pickett attempted to create in favor of Cummings, Alter is equally unfortunate. The registry of his judgment against Cummings did not give him a mortgage on the right of usufruct of the Chalk Level plantation. The act granting it is an act under private signature, and therefore invalid as a donation. It is not good as a sale or a giving in payment, as there was no price stated in the act.
    If, however, Cummings had the right of usufruct, aud Alter, by the registry of his judgment against him, had acquired a mortgage thereon, Alter should have asked for a separate appraisement prior to the sale, in order that his part of the proceeds should be ascertained with legal certainty.
    APPEAL from the Eighteenth Judicial District Court, parish of Bossier. Turner, J.

      N. O. Blanchard, for plaintiff and appellee. BaMil & Taylor, for Alter, third opponent and appellant. Nutt & Leonard, for Union Bank, Citizens’ Bank, and Mary B. Conner, third opponents and appellees.
   Morgan, J.

On the sixth of February, 1857, Paulina Pickett, by act under private signature, declared as follows: “ State of Louisiana, parish of Bossier, be it remembered hereby, that I, Panlina Pickett, of the above residence, for and in consideration of tbe recitals hereinafter made, do hereby bargain, sell, grant, transfer and convey unto Robert C. Cummings, of the city and parish of Orleans, in the State of Louisiana, the following described, property, all lying in the parish of Bossier and State of Louisiana, namely, the following lands. * * * This conveyance is for the term of the natural life of the said Robert C. Cummings, the intention of this conveyance being to give to the said Cummings the usufruct of all the aforedescribed property for and during his natural life. It is the object of this conveyance to give the said usufruct, as aforesaid, to commence with the first of the current year, and to embrace the crops of every description that shall be made on said plantation the current year, together with the provisions of every description, and plantation supplies now on said plantation, and all the rights, privileges and improvements appertaining to said plantation, land, slaves, etc. And to the end that the said Cummings may fully enjoy the estate herein conveyed to him in full property for the term aforesaid to be by him used, occupied, farmed, leased, and enjoyed in his own name.

“ The consideration of the above conveyance is the affection I have and bear towards the said R. C. Cummings, as well as the obligations I feel under toward him for his personal services and attention to my business as well in the parish of Bossier as elsewhere.”

• On November 20, 1865, Cummings, to secure Mrs. Pickett against liability on certain accommodation paper, amounfing to $300,000, which she had given for the benefit of R. C. Cummings & Co., executed a mortgage on the Chalk'Level plantation. In this act of'mortgage his usufruct is not mentioned.

On the third July, 1866, Mrs. Pickett mortgaged to the plaintiff, T. B. Lee, the Chalk Level plantation to secure the payment of ten notes for the sum of ten thousand dollars each, which notes were drawn by Cummings in favor of Lee.

On the third September, 1866, by private act Mrs. Pickett executed a release of the mortgage granted to lier by Cummings, and required the recorder of Bossier parish to make Lee the first mortgage, reserving to herself the second mortgage. The act recites:

“Know all men by these presents, that I, Mrs. Paulina Pickett, of the parish of Bossier, in the State of Louisiana, do hereby declare as follows, to wit: that whereas, by an act dated Caddo parish, the twentieth November, 1865, R. C. Cummings did specially mortgage and hypothecate in my favor his life interest in the Chalk Level plantation,” etc.

Lee caused the Chalk Level plantation to be seized under his mort-' gage. It was sold, the proceeds remaining in'the hands of the purchaser. Prior to the sale the Citizens’ Bank, Mrs. M. B. Conners, and the Union National Bank filed their oppositions claiming the proceeds of the sale of the land on the ground that they were the holders of some of the series of the notes given by Cummings to Lee, and secured by the same mortgage.

Alter filed his opposition, claiming the proceeds of this plantation. He claims a mortgage arising from the registry made on the twenty-fourth March, 1861, in the recorder’s office of Bossier parish, of a judgment rendered in his favor, against Cummings & Co., by the Third District Court of New Orleans, on the twenty-sixth January, 1866, for the sum of $46,150; also a legal mortgage upon the land resulting from the registry in the same office, of a judgment in his favor, against Mrs. Pickett, as garnishee, rendered by the same court on June 13, 1866. He alleges that the registry of these judgments operated as a mortgage on all the interest Cummings had in the Chalk. Level plantation ; that at the time of the registry of the judgment Cummings was the usufructuary of the land, and that he is still the usufructuary and in possession thereof. He contends further that Mrs. Pickett, having in the mortgage from Cummings to herself, acknowledged Cummings to be the owner of the land, it is now subject to the mortgage resulting from the registry of the aforesaid judgments in his favor, and he therefore claims to be paid by preference over Lee.

The decision in the case of Alter v. Pickett, from which resulted the judicial mortgage in Alter’s favor, recorded in Bossier parish and affecting the Chalk Level plantation, was reversed. When the judgment fell, the mortgage upon which it rested fell with it, and the contest between the parlies is disembarrassed of this element of difficulty. They are left to contest their rights upon the following state of facts: Alter, as the judgment creditor of Cummings, claims to have a mortgage upon the plantation, superior to the one under which the plaintiff and intervenors set up their rights, because he says Mrs. Pickett, when she took a mortgage from Cummings on the Chalk Level plantation thereby acknowledged the title of the plantation to be in him, and that inasmuch as his judgment was recorded before the act of mortgage from Mrs. Pickett to Lee was passed, his claim is superior to Lee’s. And he contends that Cummings’ title to the plantation can not be questioned.

“If the contest here was between Mrs. Pickett and Cummings, or a party claiming against them, either individually or together, the doctrine of estoppel would have to be considered. But others’ rights are in the scale, and estoppel, which applies only to the parties or their ayant cause, can not weigh against them.”

It is to be observed that there is no question of usufruct here, or whether the usufruct passed with the sheriff’s sale, or the title thereto. The usufruct not having been sold, the sole question is, did the recorded judgment of Alter against Cummings in the parish of Bossier affect the Chalk Level plantation ?

To mortgage a piece of property, the mortgager must be the owner of it. Now Cummings was never the owner of the Chalk Level plantation. He had the usufruct of it, but usufruct is defined to be the right of enjoying a thing the property of which is vested in another, and we are quite convinced that when Mrs. Pickett took her mortgage from him, she never fancied that she was taking any thing more than a mortgage upon his usufruct. ■ Under no circumstances can this act of mortgage be looked upon as a title to the property, or an acknowledgment that it belonged to him, at any rate in so far as to affect the rights of third persons. So far at least as the public was concerned, Mrs. Pickett’s title to the property was not changed, and the mortgage which she gave to Lee was perfectly good, valid, and binding in favor of all those who held obligations secured thereby.

At the threshold of this investigation therefore an impassible barrier is presented to Alter’s pretensions, and this renders an examination of the other points which have been presented and ably argued unnecessary.

Judgment affirmed.

On Rehearing.

Wyly, J.

Oh sixth February, 1857, Mrs. Paulina Pickett conveyed to R. C. Cummings the usufruct for life of the Chalk Level plantation by act under private signature, the consideration being her affection for him “ as well as the obligations I feel under toward him for his personal services and attention to my business as well in the parish of Bossier as elsewhere.”

On twentieth November, 1865, Cummings mortgaged to Mrs. Pickett the Chalk Level plantation to secure her against liability on accommodation paper, amounting to $300,000, given by her to Cummings & Co., A. H. Leonard accepting this mortgage as agent of Mrs. Pickett.

On twenty-fourth March, 1866, Charles E. Alter recorded a judgment which he had against Cummings in the parish of Bossier; and it is this right, as mortgage creditor of Cummings, which he asserts against the proceeds of the sale of the Chalk Level plantation.

On,third July, 1866, Mrs. Pickett mortgaged the Chalk Level plantation to Thomas B. Lee to secure ten notes for $10,000 each.

On third September, 1866, Mrs. Pickett by act under private signature renounced in favor of Lee the priority of her mortgage acquired from Cummings, the act reciting that “whereas, by an act dated Caddo parish, November 20, 1865, R. C. Cummings did specially mort-gage in my favor his life interest in the Chalk Level plantation.”

On eighth October, 1872, Thomas B. Lee sued out an order of seizure and sale on one of the ten mortgage notes he acquired on third July, 1866, and the Chalk Level plantation was sold thereunder on seventh December, 1872, to the Union Bank; and the proceeds of this sale are now the subject of controversy. Prior to the sale the Citizens’ Bank, the Union Bank, and Mary B. Conner filed third oppositions, alleging that they held notes secured in the same mortgage from Mrs. Pickett to Lee, which said notes Lee had indorsed to them and therefore they were entitled to.be paid by preference over Lee out of the proceeds of the sale of the mortgaged property.

Charles E. Alter also filed a third opposition, setting up his mortgage rights, resulting from the registry of his judgment against Cummings in Bossier parish on twenty-fourth March, 1866, and alleging that the Chalk Level plantation (the proceeds of which are in controversy) belonged to Cummings; that Mrs. Pickett and those claiming under her are estopped from denying Cummings’ title' to said plantation, because she accepted a mortgage on said plantation from him on twentieth November, 1865, thereby tacitly acknowledging him as owner thereof. He also claims a mortgage on the usufruct of Cummings in the event it should be held that he only held the right of a usufructuary on said plantation ; and as mortgagee of the right of usufruct he claims a portion of the proceeds of the sale of said plantation equal to the value thereof, in view of the fact that said right of usufruct was sold, as lie alleges, under the foreclosure of the mortgage of Lee. The court below rejected the demand of Alter, dismissed his opposition, and distributed the proceeds of the sale of the Chalk Level plantation between the other opponents and plaintiff. From this judgment Charles E. Alter has appealed.

The inquiry is limited then to the validity and extent of his rights as against plaintiff and the opponents, the Citizens’ Bank, the Union Bank and Mary B. Conner in relation to the funds in controversy.

If the Chalk Level plantation belonged to E. C. Cummings and appeared so in the notarial books of the parish of Bossier, Alter would have a right to the proceeds superior to the other parties to this suit, because his judicial mortgage ranks from twenty-fourth March, 1866, the day he recorded his judgment against Cummings, and this was prior to the mortgage- given by Mrs. Pickett out of which the rights of all the appellees arise.

But Cummings had no title from Mrs. Pickett which had effect as to third persons, because none was recorded-in the book of conveyances in the recorder’s office of the parish of Bossier.

The only evidence of title in him was Mrs. Pickett’s implied acknowledgment when she accepted from him a mortgage on her Chalk Level plantation, if indeed she did ratify the act of A. H. Leonard, Esq., who without authority accepted in her behalf the mortgage from Cummings. If, instead of an implied recognition of title,- which Mrs.: Pickett was estopped from denying, she had made to Cummings a regular conveyance of the'Chalk Level plantation, and the deed was not recorded, it would be without effect as to third persons accepting title or a mortgage subsequently from Mrs. Pickett who appeared on the public records as the owner of the Chalk Level plantation.

It is not pretended there was a registry in the conveyance books of the parish, of the mortgage which operated the estoppel, assuming that such would amount to a public notice of title, about which we express no opinion.

As to third persons, therefore, the pretended title of Cummings was utterly without effect. It was not disclosed to the public when the mortgage of Mrs. Pickett to the appellees was granted, and there is no evidence that it has ever been disclosed by registry in the parish of Bossier, where the Chalk Level plantation is situated. The registry in the mortgage book would be good for a mortgage, but would be no registry for a title. Our conclusion, therefore is, that the mortgage granted by Mrs. Pickett, on third July, 1866, to Thomas B. Lee on the Chalk Level plantation, the title of which stood on the public records in her name, was and is not' defeated by the judicial mortgage of Charles E. Alter against R. C. Cummings. As a mortgage creditor Alter can not successfully contest with the appellees for the proceeds of the sale of the Chalk Level plantation.

As mortgagee of the usufruct which Mrs. Pickett attempted to create in favor of Cummings he is equally unfortunate. The registry of his judgment against Cummings did not give Alter a mortgage on the right of usufruct of the Chalk Level plantation, because no such right was legally acquired by Cummings. The act granting it is an act under private signature; and therefore invalid as a donation. It is not good as a sale or a giving in payment, as there was no price stated in the act. If, however, Cummings had the right of usufruct, and Alter, by the registry of his judgment against him, had acquired a mortgage thereon, Alter should' have asked for a separate appraisement prior to the sale, in order that his part of the proceeds could be ascertained with legal certainty. On the whole, we are satisfied that the judgment appealed from is correct.

It is therefore ordered that our former judgment rendered in this case remain undisturbed.

Morgan, J.,

concurring. I concur for the reasons assigned in the former opinion of the court.

Ltjdeling, C. J.,

dissenting. I dissent in this case on the grounds that the third opponent had the first mortgage on the property sold, and I reserve the right to state hereafter my reasons for this opinion.


author: Taliaferro, J.

text:
    No. 479.
    The Consolidated Association of the Planters of Louisiana v. John W. Mason et als.
    The peculiar principles upon, which’ the Consolidated Association of the Planters of Louisiana was organized, the important purposes it was intended to subserve, and the enduring character which was required to be given to it, rendered essentially necessary that the enforcement of its obligations should not be defeated or delayed by pleas and de-, fenses admissible in regard to ordinary hypothecations. The important interests of the State were also to be protected.
    It is a pre-eminent feature in the charter of the Consolidated Association of the Planters of Louisiana that no future change of ownership or possession of the property mortgaged to secure the stock subscribed or the loan made, should ever prevent or delay the enforcement of the mortgage against the property, to collect whatever sum might be due by the original mortgager. It was on these conditions that the State became the indorser on the bonds issued by this association in 1828. There is no place for delays or calls in warranty, nor operation of prescription of its debts, or peremption of its mortgages.
    Reference must be made in this instance to Civil Code, article 3333, amended by act of 1842, which declares “ that the rule requiring the reinscription of mortgages at the expiration of ten years kora date of their registry shall not apply to the mortgages which have been or may be given by the stockholers of the various property banks of this State.”
    APPEAL from the Fourteenth Judicial District Court, parish of Ouachita. Ray, J.

      Morrison & Farmer, for plaintiff and appellee. li. Richardson and McFnery, Stubbs & Gobi), for defendants and appellants.
   Taliaferro, J.

This case was before us at the July term of this court 1872, and was then remanded for further proceedings. See 24 An. 518.

When the case was again taken up in the court below the executors of Hart, present possessors, after the general issue urge again the exceptions previously filed, and which were overruled by this court in July, 1872. They further admit that the land they are in possession of forms part of the land originally mortgaged by Mason to the Planters’ Association, allege that their testator bought the same from Calderwood, and pray that the heirs of Calderwood he called in warranty. This prayer for the call in warranty was refused. Mrs. Mason adopted the defenses set up by Hart and others, as to the description of property, etc. She further pleads the prescription of three, five and ten years j on the part of the other defendants, the prescription of one, three, five and ten years against the plaintiff’s demand'and the prescription of ten years against the failure to reinscribe the mortgage originally recorded, April 17, 1830.

The plaintiff had judgment for the amounts claimed, with recognition of the mortgage right asserted, accompanied with an order that the mortgaged premises as described in the act oí mortgage be seized and sold, Deing the same now in the possession of the executors of James Hart, and the venders of James Hart and of his estate acquired by James Hart from John Calderwood, by deed dated twenty-sixth September, 1866, a copy of which is annexed to the answer of Joseph W. Locke and Benjamin Hart.

From this judgment the defendants have appealed.

It is not important to examine the bills of exception presented by the record. In relation to the issues made in the lower court, three questions are presented :

First — Did the judge a quo err in refusing the call in warranty 9

Second — Can defendants avail themselves of the fact that the mortgage had not been reinscribed within the ten years next preceding the date of their purchase?

Thwd — Is the debt prescribed ?

We are of the opinion that each of these questions must receive a negative answer.

The peculiar principles upon which the Consolidated Association of the Planters of Louisiana was organized, the important purposes it was intended to subserve, and the enduring character which was required to be given to it, rendered it essentially necessary that the enforcement of its obligations should not be defeated or delayed by pleas and defenses admissible in regard to ordinary hypothecations. The important interests of the State too, were to be protected. It is a prominent feature in the charter of the association that no future change of ownership or possession of the property mortgaged to secure the stock subscribed or the loan made, should ever prevent or delay the enforcement of the mortgage against the property, to collect whatever sum might be due by the original mortgager. It was on those conditions that the State became the indorser on the bonds issued by this association in 1828. Acts of 1828, p. 32. Hence the charter provides specially against delays and impediments in collecting its dues in the prompt manner provided for. There is then no place for delays, for calls in warranty, nor operation of prescription of its debts or peremption of its mortgages. Provisions to this effect are found in sections 22, 24 and 25, of the act incorporating the association j Charter of sixteenth March, 1827, and amendatory act of nineteenth February, 1828, prescribing the terms of the mortgage, etc. See Civil Code, article 3333, amended by act of 1842, which declares that the rule requiring the reinscription of mortgages at the expiration of ten years from date of their registry, shall not apply to the mortgages which have been or may be given by the stockholders of the various property banks of this State.”

We think the judgment appealed from correct.

Judgment affirmed.

Rehearing refused.


text:
    No. 538.
    J. B. Spears, Tutor, v. Mrs. M. J. Spears, Administrator.
    ■When defendant admitted the validity of the note sued upon and pleaded against it the extinguishment, novation and settlement stated in the answer, no proof was required of plaintiff' to establish an indebtedness on the note, the law requiring no one to prove what is admitted in the answer.
    The objection that the answer was not offered in evidence is frivolous. Pleadings make up the case, and are never offered in evidence on the trial thereof.
    The judge a quo did not err in refusing to permit defendant to set up and prove an individual account against plaintiff in compensation or discharge of a debt due to him as tutor. The rights of the minors whom plaintiff represents in this action are in no manner affected by his individual indebtedness to defendant.
    The entries made in plaintiff’s books in the handwriting of J. P. Spears, the bookkeeper, against himself, or debiting himself, were admissible against the succession of the latter.
    The declarations or statements of the witness Post to plaintiff, previous to the trial, were not admissible against plaintiff, because they were the declarations or statements of a • third person, not a party in interest.
    The claim of reversal of judgment because, as written, it is absolute, and not a judgment to be paid in due course of administration, is not well founded. This was evidently a clerical error in drawing the judgment, and is of no consequence, because the judgment must be construed in reference to the petition, wherein it is prayed that plaintiff’s demand be paid in due course of administration.
    APPEAL from the Eleventh Judicial District Court, parish of Union. Trimble, J.

      J. O. Egan, for plaintiff and appellee. G. E. Ellis, for defendant and appellant.
   Wyly, J.

The defendant, the administratrix of the succession of J. Spears, appeals from the judgment against her for $387 86 on an account, and the iurther sum of $1100, the amount of a note, with eight per cent per annum interest thereon from eighteenth June, 1870. The answer denies any indebtedness except on the note attached to plaintiff’s petition, which has been “extinguished, novated and settled” as stated in the answer. The alleged extinguishment or settlement of the note has not been established by the defendant, who now contends that the judgment for the amount of the note should be annulled because plaintiff neglected to offer it in evidence. When defendant admitted the validity of the note and pleaded against it the extinguishment, novation and settlement stated in the answer, no proof was required of plaintiff to establish an indebtedness on the note, the law requiring no one to prove what is admitted in the answer.

Under the pleadings in regard to the note, the only question was whether there was an extinguishment, novation or settlement as alleged by the defendant, upon whom the proof devolved. The objection that the answer was not offered in evidence is frivolous. Pleadings make up the case, and are never offered in evidence on the trial thereof. The evidence supports the judgment on the account. The court did not err in refusing to permit defendant to set up and. prove an individual account against plaintiff in compensation or discharge of a debt due to him as tutor. The rights of the minors whom plaintiff represents in this action are in no manner affected by his individual indebtedness to defendant. The entries made in plaintiff’s books in the handwriting of J. P. Spears, the bookkeeper, against himself or debiting himself, were admissible against the succession of the latter. The declarations or statements of the witness Post to plaintiff previous to the trial were not admissible against plaintiff, because they were the declarations or statements of a third person not a party in interest. The court did not err, and the bills of exceptions were not well taken.

The statement in the brief of defendant that the judgment allows eight per cent interest on the indebtedness on the account is incorrect; no interest was allowed on this part of the claim. The judgment only allows eight per cent, interest on the amount of the note from the maturity thereof.

. The defendant also claims a reversal of the judgment, because, as written, it is absolute and not a judgment to be paid in due course of administration. This was evidently a clerical error in drawing the judgment, and is of no consequence, because the judgment must be construed with reference to the petition, wherein it is prayed that plaintiff’s demand be paid in due course of administration. The prescription of three years was not well pleaded. On the whole, the defense is without merit.

Judgment affirmed.

Rehearing refused.


text:
    No. 592.
    Mrs. M. A. Foster v. Wm. H. Wise.
    The extension of the time of payment of a certain mortgage note was really the consideration of the note in suit, and this was a lawful consideration.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      JST. O. Blanchard, for plaintiff and appellant. Bgan <& Wise, for defendant and appellee.
   Wyly, J.

The plaintiff appeals from the judgment rejecting her demand on a promissory note for $742 23, the defendant being surety on said note.

The defense is, the consideration of said note is usurious interest.

It is shown that Will and Ben Crowder, the makers of the note in suit, were owing plaintiff $4563 88, evidenced by their mortgage note maturing first January, 1871, bearing eight per cent, per annum interest; that in order to get an extension of the maturity of said note they agreed to pay the additional sum evidenced by the note in suit, being seven per cent, on the amount of the large debt the payment of which plaintiff agreed to extend for them and did extend for them pursuant to said agreement. The extension of the time of payment of the mortgage note was really the consideration of the note in suit, and this was a lawful consideration.

It is therefore ordered that the judgment herein be annulled, and it is decreed that plaintiff recover of the defendant seven hundred and forty-two dollars and twenty-two cents, with eight per cent, interest thereon from March 1, 1873, and costs of both courts. See 26 An. 477; Revised Code 1900, 1767, 1885, 1896. See also Willis v. John and Charles Chaff, lately decided.


text:
    No. 531.
    D. C. Morgan v. E. M. Johnson.
    This is a petitory action, based on untenable grounds. The sheriff, under whose sale the tract of land is claimed, never had possession of the property which he pretended to sell. He never seized it, except by giving notice oí seizure. To constitute a valid seizure of a plantation, cultivated as such, the sheriff must take the property into his possession and custody.
    APPEAL from the Fourteenth Judicial District Court, parish of Morehouse. May, J.
    Plaintiff and appellee! in propria persona. Newton <& Nall, for defendant and appellee. Bussey & Brigham, for warrantor.
   Morgan, J.

On the sixteenth January, 1861, James Bell sold a certain tract of land, partly cultivated as a plantation, to E. P. Bell, his brother.

On the twenty-eighth January, 1866, Tully & Co. obtained judgment against James Bell for $1936, with interest at eight per cent, per annum from twelfth January, 1862.

Execution issued on this judgment in February, 1868. The property sold by James to E. P. Bell was sold under this execution. Plaintiff bought it. His deed was recorded in November, 1871. On the twenty-third August, 1870, E. P. Bell resold the property to James Bell. On the sixth December, 1873, James Bell sold the same property to E. M. Johnson.

Two years elapsed after Tully & Co. obtained judgment before they attempted to execute it, and three years elapsed after the sale before the purchaser caused his deed to be recorded.

This suit was instituted in September, 1874, six years after the sale, by the plaintiff against Johnson. It is a petitory action, in which he charges that he has a better title than Johnson has. He alleges that Johnson’s title was illegally and fraudulently obtained. He must, of course, recover upon the strength of his own title. The difficulty in plaintiff’s case is that he has no title.

It does not appear that the possession of either of the Bells, or of Johnson after them, was ever interfered with. The sheriff never had possession of the land which he pretended to sell. He never seized it, so far as this record discloses, except by giving notice .of seizure.

To constitute a valid seizure of a plantation, cultivated as such, the sheriff must take the property into his possession and custody. 22 An. 207, Kilbourne v. Frellsen.

As there was no legal seizure, there was no sale. Morgan acquired nothing by this act of the sheriff, and he can claim nothing under it.

This view of the case renders it unnecessary that we should pass' upon the many other questions raised by both parties.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed with costs.


text:
    No. 586.
    State of Louisiana v. Charles Clinton. Frank Morey, Intervenor.
    This appeal was made returnable to this court on the first Monday of Hovember, 1875, by the Superior District Court, parish of Orleans, and is made by law returnable at New Orleans. This court declines to try the case before the day it is made returnable, and at Monroe, a different place from that fixed by law, for the hearing of this appeal, even though the parties have consented to it.
    APPEAL from the Superior District Court, parish of Orleans. Hawláns, J.

      John Ray, for petitioner and for intervenor, Frank Morey, appellant. A. P. Field, Attorney General, for defendant and appellee.
   Wyly, J.

The appeal taken in this case by the intervenor Frank Morey, from the judgment rendered on second July, 1875, was made returnable to this court on first Monday of November, 1875. It is from the Superior District Court, parish of Orleans, and is made returnable by law at New Orleans. This court declines to try the case before the day it is made returnable, and at a different place from that fixed by law for the hearing of this appeal, even though the parties have consented to it.

It is therefore ordered that the case be stricken from the docket of cases triable at this term, with leave to the appellant to file the record in the Supreme Court at New Orleans pursuant to the order of appeal.


author: Ludeling, C. J.

text:
    No. 555.
    The State ex rel. J. E. Leonard, District Attorney et al. v. Ed. Jackson.
    M. A. Sweet was returned as elected recorder by the board created by law to ascertain that fact, and the commission issued by the Acting Governor is conclusive of that fact in all cases except where the election has been contested within the time fixed by law. Therefore the subsequent appointment of Jackson by the Governor was made in error, and is null and void.
    Whether the oath of office of Sweet was taken and recorded in the office of the Secretary of State or not, did not authorize the Governor to treat the office as vacant.
    APPEAL from the Thirteenth Judicial District Court, parish of Carroll. Sough, J.

      J. S. Leonard, district attorney, Sparrow & Montgomery, for relator and appellant. Montgomery & Belong, for defendant and appellee.
   Ludeling, C. J.

M. A. Sweet was returned as elected by the returning board, and he was commissioned by Acting Governor Pinchback on the twenty-first December, 1872, as recorder of Carroll parish. He took the oath of office, gave bond, and entered upon the discharge of the duties of his office immediately thereafter, and he continued to act as such till April, 1875, when the defendant got possession of the office, building and archives by force, and he holds the same in defiance of the plaintiff’s rights, under a commission issued by Governor Kellogg in March, 1875.

The term of the office of recorder is four years. M. A. Sweet was returned as elected by the board created by law to ascertain that fact, and the commission issued by the Acting Governor is conclusive of that fact in all cases, except where the election has been contested within the time fixed by law.

This is the well settled jurisprudence of this State. Therefore the appointment by the Governor of Jackson was made in error, and it is null and void.

Whether the oath of office of Sweet was taken and recorded in the office of the Secretary of State or not, did not authorize the Governor to treat the office as vacant. Downs v. Towne, 21 An. 490. It might perhaps authorize the district attorney to institute suit to have his office declared vacant, and treating this as such a suit, we have examined the evidence on that point. It shows that M. A. Sweet took the oath of office on or about the twenty-sixth of December, 1872, and that it was deposited in the clerk’s office, where it was recorded, about three months thereafter. It also appears that a duplicate of said oath was forwarded to the Secretary of State, but it seems not to have been recorded in that office. We think the law has been substantially complied with.

It; is therefore ordered and adjudged that the judgment of the lower court be annulled, and that there be judgment in favor of the relator and against the defendant, decreeing M. A. Sweet to be recorder of the parish of Carroll, and to be put in possession thereof immediately. It is further decreed that M. A. Sweet’s rights to recover the fees and perquisites of said office, collected by defendant, and the damages resulting from the wrongful acts of the defendant in taking possession of said office, be reserved to him, and that defendant pay costs of both courts. • -