author: Todd, J.

text:
    No. 8901.
    Succession of Dr. Pierre C. Boyer.
    Opposition of Edith Boyer to account of Administratrix.
    The wife has no proprietary interest in the property and effects of the community until its dissolution. Tourné vs. Creditors, 6 La. 459; Tourné vs. Tourné, 9 La. 452; G-uice vs. Lawrence, 2 A. 226.
    The husband is head and master of the community; and he may dispose of its revenues and movable effects gratuitously, without the consent or permission of the wife, and without accountability to her or her heirs. It is only whero the wife can prove, satisfactorily, that the husband has disposed of the community property by fraud, to injure her, that she can proceed against the heirs of the husband for one-half. R. O. C. Art. 2404.
    Repairs made, during the existence of the community, to the separate property of the husband, used and enjoyed by the spouses, are at the expense of the community; and the revenues of the separate property of the husband belong to the community, which cannot, therefore, be charged with the rents of such property.
    The recompense due for improvements to the separate property of the spouses, cannot exceed the enhanced value of the property, at the date of the dissolution of the community, resulting from such improvements. R. C. C. 2408.
    Money belonging to the child of the father by former marriage, received by him as tutor during the second marriage, is a debt of the second community; and it bears interest from the date at which it was so received and such community is liable for both the principal and interest of the debt.
    The widow in community has no claim for money expended by the deceased husband in the maintenance of his heir, child of a former marriage, either during the minority or majority of such heir, in the absence of all evidence of any intention on tbepart of the husband whilst living, of making such charge and the community is entirely solvent and possessed ample revenues during its existence.
    The community of acquets and gains is not strictly a partnership : it is the effect of a contract ; and it is governed hy special law. R. C. C. Article 2807.
    The widow in community, administratrix of the succession of the deceased husband, is entitled to commissions on the entire community property inventoried' as part of the , successions of her husband.

      A PPEAL from the Civil District Court for tlie Parish of Orleans. A.A Houston, J.

      Li. H. Harr for Opponent and Appellee.

      H. W. Huntington and H.L.Diifour for the Administratrix, Appellant.
   The opinion of the Court was delivered by

Todd, J.

Dr. Pierre C. Boyer died in the city of New Orleans, in 1881, intestate.

He was twice married. His first wife was Theodora Wedderstrandt, who died in 1861, leaving as sole issue of the marriage, Edith Boyer, then a minor of six years of age.

His second marriage was contracted in June, 1867, with Mrs. Pauline Tourné Boyer, who survived him. There was no issue of this second marriage. Mrs. Boyer, the surviving widow, was, after the death of Dr. Boyer, appointed administratrix of his succession and in due time rendered an account of her administration, which was opposed by Miss Edith Boyer, the sole child and heir of the deceased; and it is this opposition that is before us for review.

It was in part sustained by the judgment of the lower court and from that judgment the administratrix has appealed.

Por a proper understanding of the controversy, it is necessary to state that Edith Boyer inherited from her mother a mortgage claim, on which her father collected $10,335 55, $3200 of which he received before his second marriage, and the residue, $7135 55, after'the marriage.

Dr. Boyer was confirmed as natural tutor of his daughter several years after the death of her mother, but never caused an inventory of her estate to be made, and died without filing any account of his tutorship.

A short time before his second marriage, he purchased a residence in this city, situated on Terpsieliore street, for $8000 -$6000 of which he paid in cash and gave his two notes for the balance of the price, for $1000 each, maturing respectively in one and two years, from the date of the sale, and which notes were paid after .his second marriage.

He also had extensive repairs made on this property before his second marriage and paid for them after that event.

He continued to occupy this residence after his second marriage and up to the period of his death; made considerable repairs and improvements thereto, from time to time.

Edith Boyer, with the exception of two years spent with an aunt in New York, and a few months in G-alveston, lived with her father in the family dwelling from the death of her mother to his death, in 1881.

These facts will suffice to suggest that the controversy in this case has grown out of the claims of the community, resulting from Dr. Boyer’s second marriage, against his separate estate or against Edith Boyer, the sole heir thereto, and will give an idea of their character. As presented in the account of the administratrix, they consist mainly of charges against the separate estate for alleged debts of the same, settled by the community — being for sums paid on the price of the family dwelling, and for repairs and improvements thereon; and also, charges for the board, maintenance and education of Edith Boyer, before and after her majority.

These claims we will proceed to particularize and consider in their order.

I.

The notes representing the credit portion of the price for the Terpsichore street property mentioned, matured and were paid, as stated, after the second marriage. They amounted, in principal and interest, to $2240. As they were paid during the existence of the community, the presumption arises that they were paid out of community funds. The counsel for the opponent contends that this presumption is rebutted and the payments — at least as to the first note maturing — must have been made out of Dr. Boyer’s separate funds. The evidence on which he relies does not satisfy us that such was the case. Besides, the presumption that* the debts were settled with or out of the community funds is directly supported by the testimony of Mrs. Boyer; and, on the whole, after a careful review of the entire evidence on this point, we find no reason to disturb the finding of the judge a quo, who maintained this as a proper charge of the community against the separate estate.

II.

The debt for repairs on the house, contracted by Dr. Boyer before his second marriage, amounted in the aggregate to $2364 90. This amount was settled by different payments, extending over more than two years, and all made after the second marriage. Inasmuch as two of these payments, amounting to $500, were made within ninety days after the marriage, and considering that Dr. Boyer’s earnings must have been considerable in the interval between the cash payment on his house, in February, and his marriage, in June, for it is shown that in all these years Ms practice as a physician was large and lucrative, it is hut reasonable to conclude that these two first payments, at least, were made out of his separate funds, and that the presumption to the contrary, arising from the time of the payments, is fairly refuted. The district judge thus held and deducted the $500 from the total of the claim on this account, and allowed the balance of $1864 90 as a proper charge in favor of the community, and we think it was correct.

III.

The next charge is for improvements made upon the dwelling after and during the marriage. Their cost is stated in the account to amount to $3149. The separate estate cannot be charged with the cost of the improvements, but only with the amount that such improvements enhanced the value of the property. C. C. 2408; 2 A. 43; 14 A. 763; 33 A. 540; Sue. Roth.

We have examined the items of the account for these alleged improvements and are satisfied that some of the work charged for was not strictly for additions or permanent improvements to the property but for repairs. There was considerable testimony taken on this point, which we have attentively considered and we are not prepared to say that the conclusion of the district judge who estimated the enhancement in value to the property from the improvements at $2000, was incorrect. We shall not change his estimate or disturb the judgment in this respect.

IV.

There is a charge in favor of the community and against the separate estate of Dr. Boyer, or Edith, his heir, amounting to $15,042 33— $9554 55 of which is for board, maintenance and education of Edith, during her minority, or that period of it dating from the second marriage, and the residue, $5487 78, for her board and maintenance after her majority and up to the death of her father.

This sum of $15,042 33 is credited with $1560 and $1350, making together $2910, as interest on the separate funds of Edith, in the hands of her father — leaving a balance in favor of the community of $12,132 33.

The whole of this is opposed and the question of correctness vel-non or any portion of it is the most serious one presented by this controversy.

As before stated, Dr. Boyer never rendered any account of his tutorship, and we have no evidence before us as such an account would have afforded, to show whether it was his intention to charge his minor child for these expenses or not. Edith was Ms only child, and the evidence portrays Dr. Boyer as a kind and affectionate parent and generous in his expenditures for the happiness and comfort of his daughter. It is also shown that he derived a large revenue from his practioe as a physician, amounting, some years, to as much as $10,000.

During Dr. Boyer’s lifetime, both before and after her majority, with the exception of two years spent with her aunt in New York, where she was sent for her health, Edith lived in her father’s house. His family consisted only of himself, wife and daughter, with the addition, a part of the time, of a widowed sister.

. He received, before his second marriage, funds of his daughter, inherited from her mother, amounting to $3200, -which he never accounted for and which form no part of the controversy, in the present suit, .and after his second marriage he received, at different times, sums belonging to her, derived from the same source, aggregating the further sum of $7135 74.

Of course, whatever may have been Dr. Boyer’s wishes or intention in regard to charging his daughter for the expenses of maintenance, etc., during her minority, he could not, except with the advice of a family meeting, approved by the judge, have applied or used the funds of his child, beyond the interest thereon, for such purpose. O. C. 350. But the question arises, and it is the real one to be here determined, whether, under the circumstances stated and in the absence of any charge made against his daughter by Dr. Boyer, in his lifetime, such charge against Ms separate estate or against his daughter, as his heir, can be successfully urged after his death in behalf of the community for expenses incurred during her minority or even after her majority, to the extent of or as relates to either her capital or interest.

This is the claim now urged by Mrs. Boyer, the surviving partner of the community.

A recurrence to first principles governing the relations of parent to child, and to our laws, and to other systems from which our laws are derived, regulating parental duties and responsibilities, as likewise a brief reference to the elementary aud leading principles applicable to the.marital community, will aid us in the determination of this interesting question.

Every system of laws of which we have any knowledge, whether crude or enlightened, has recognized and consecrated that ruling principle of nature’s great law, that prompts a man to love his offspring and to labor for and contribute, even gratuitously, to bis well being and happiness. The declarations illustrative of this principle are clearly laid down in the texts of the Roman law.

Among them are: that what tho father or the mother has expended, from parental affection, can never be reclaimed. Thus: “Alimenta quiclem, quae jiliis tais prcestitisti, tibi recldi non justa ratione postulas.” Cod. 11, tit. 1, 9, 1, 15.

And even what has been expended for the maintenance and education of step-daughters cannot be recovered.

“Si paterno affeetu priviquas tuas aluisti seu mercedes pro his aliquas magistris expendisti ejns erogationis tibi nulla repetitio est.n lb.

And what the son may have received from his father, even after his emancipation, to enable him to pursue his studies abroad, unless intended as an advance, is not subject to collation. Digest X, tit. Ill, 1, 50.

Article 1244 of our Code, while not going to the same extent, contains a similar provision to tho last cited. This article is the same as article 852 of the Code Napoleon, being a literal translation. And commenting on this article (852), Demolombe says: “ Ce qu’il faut alors seulement rechercher, suivant nous, e’est l’intention d’apres laquelle ces frais out été faits, soit pour son enfant, soit pour tout autre de ses suc-cessibles.” Successions, 4, p. 484.

Under our law the husband is head and master of the community. During its existence he may dispose of its effects as he pleases, subject only to the right of the surviving wife, upon its dissolution, to proceed against his heirs for one-half of the same, provided that she can prove that the transfer or other disposition was made with the fraudulent intent to injure her. C. C. 2404.

In fact the wife has, during the marriage, no vested proprietary interest in any property composing the community, but only an inchoate right, which entitles her to the hope or expectation that if she survives her husband, she can receive or own one-half of the property that may be left after payment of the community debts. When this contingency arises, the surviving wife must take the community,-if she accepts it all, as she finds it, without any right or power to call the succession of her husband or his heirs to an account for any act done or even waste committed, during its existence unless in the exceptional case mentioned above, by which its value is diminished or its property is despoiled or encumbered. 6 L. 459 ; 9 L. 452; 2 A. 226.

As an illustration in tlie instant case: It appears from the evidence that for several yeará after Ms second marriage, Dr. Boyer supported out of his income in the same style that he maintained his daughter and with the same generosity, his widowed sister, yet we find no charge against his separate estate made by his surviving widow for expenditure of the community funds on this account. Nor could she legally make such charge. Or, to illustrate further: If Dr. Boyer had chosen to adopt some orphan child and rear and educate it at the expense of the community, he would not thereby subject Ms succession or heir to any charge in favor of the community or its survivor. And to go still further: Had’he chosen even to squander the community funds or property on unworthy objects or in the gratification of extravagant tastes or luxurious indulgences, neither Ms estate nor Ms heirs could have been called to an account for it by the community or its representatives.

If this is so, and under the principles governing the community to which we have referred it cannot be controverted, how can a charge he made in behalf of the community after its dissolution, when none was made during its existence, for expenditures by the husband and father for so commendable a purpose as the maintenance and support of an only daughter to whom, it was shown, he was attached by the strongest ties of parental affection; and what does it matter whether that daughter was a minor or had attained her majority when the expenditures were made?

Strange to say that although this question would almost seem to answer itself, and has frequently come incidentally before the courts of this State, it has not been authoritatively answered by any decisions heretofore rendered. It has, however, been the subject of elaborate discussion by the French commentators' on the Code Napoleon, which does not differ from our own with respect to the principles governing the community and the rights of the surviving widow therein.

Troplong, commenting with reference to the recompense due to the second wife for the expenses of the husband’s children by a previous marriage, says:

Une femme épouse un hoxume qui a des enfants d’un premier lit, et qui habitent avec lui la maison conjúgale: les enfants mhngent & la table commune, sont logés, nourris, entretenus aux frais de la commu-uauté: l’épouse, sera-t-elle fondée a dire que e’est la une dette qui ne doit retomber sur la communauté, qu’h charge de recompense? Non.“ Oe systeme ne serait ni hum Am, ui recevable comme lefait remarquer Goquille, avec d’autres jurisconsultos, on regarde comme dettes de la communauté la nourriture et l’entretien, dans la maison paternelle, des enfants d’un autre lit, e’est une charge ordinaire et domestique que l’autre époux í\ aeceptée en se mariant et á laquelle il a entendu se prés-ter par amitió et affection', et non avec intention d’étre recompensó.” Oont de Mar. 2, No. 735, p. 45.

There was some question among Erencl* authors whether this rule was applicable where children of a former marriage were sent from home, and educated at colleges or boarding schools, but the same writer, after reviewing the authorities and citing in support of his opinion several jurisconsults of note, announces his conclusion that such a circumstance did not affect the rule. Troplong, Cont. de Mar. 2, No. 758, p. 61.

These views meet our approval.

It is true that we are cited to the case of Mercier vs. Canonge, 12 R. 385, as adverse to them. The facts of that case were in several particulars essentially different from the instant one. It presented a contest between the creditors of an insolvent tutor and an insolvent community and the heirs thereto. If, however, any dictum found therein is opposed to the views herein expressed, it may to that extent be considered overruled.

The conclusion announced on this point, however, as will appear from the statement of the premises from which it is drawn, is predicated on the hypothesis that there is no evidence of any intention on the part of the father and tutor to make any charge against his child on account of her maintenance, etc., during either her minority or after she became of age, for we would not have it understood that the same ’ conclusion would follow where the evidence satisfactorily established that the charge for such expenses of the child was made by the parent, or clearly intended to be made.

It is contended by Mrs. Boyer’s counsel that there is such evidence in the record, and we are pointed to the fact shown, that after his second marriage, Mrs. Boyer kept under his (Dr. Boyer’s) direction .a book in which all the expenses of Edith, except with respect to her board, were noted or charged. This fact might seem strongly to support the counsel’s contention, but when taken in connection with the further fact that at the same time and under the same direction, were entered in the hook accounts of all the expenses of Dr. Boyer himself, of Mrs. Boyer, and of Dr. Boyer’s sister whilst she remained a member of the family, this fact loses its significance. The book was evidently kept as a kind of memorandum book, with a view to be informed of the current expenses of the family and to show the annual balances with respect to receipts and expenditures. It might as well be said that Dr. Boyer was looking forward to an account against himself, or against his wife, or his sister, as against his daughter.

Besides, there is another circumstance that completely refutes any such intention on his part. ■' It is shown that Dr. Boyer loaned at interest $0000 of the money belonging to his daughter, from time to. time during her minority and after her majority; that he spoke of it as his daughter’s money, both to those to whom the loan was made and to his daughter; and such fact appeared on the book kept by Mrs. Boyer. If Dr. Boyer had intended to charge Edith for her expenses, at rates at all corresponding to those made in Mrs. Boyer’s account as administra-trix, there would have been no money of Edith’s to loan, for the entire amount would have been absorbed by the charges against her by the time, or before, she reached her majority.

The only evidence of any purpose on the part of Dr. Boyer to charge his daughter for expenditures made on her account, is afforded by the testimony of Miss Boyer herself, wherein she stated, to use her own expression, “that her father told her that of late years,” meaning, evidently, after her majority, “that the interest on her money was being spent on her clothing.” This evidence will suffice to exclude the right of Miss Boyer to recover the interest on her money received by her father after her majority, which amounted, as the record shows, to $1350.

The logical result of the legal conclusions we announce above is, that Miss Boyer, with the exception of this interest account after her majority, is entitled to recover the entire funds belonging to her, both capital and interest, that came into the hands of her father after his second marriage. The principal, as before stated, was $7135 55, and the interest is on the respective amounts that make up this sum from the different dates at which they were respectively received.

It is contended by Mrs. Boyer’s counsel that $6000 was the total amount of the capital which Dr. Boyer received, but it is certain that there was paid to him $7135 55, after the charges of attorneys’ fees for collecting same had been settled; and it is not sufficiently shown that the above sum was subject to be reduced by any further charges.

Where the father and natural tutor has never rendered any account of his tutorship showing any charge against his child, nor otherwise distinctly shown ails'- intention to impose upon the child the expenses of her maintenance during her minority, and has received her money and used it, or loaned it and collected the interest thereon, and at the same time is in the enjoyment of a large revenue of his own, there is no principle of law that would create a distinction between the capital and interest of such funds, and make him liable to account for the one and not for the other.

The lower court, whilst maintaining Miss Boyer’s opposition as -relates to the principal both for the expenses during her minority and after her majority, declined to allow the interest thereon accrued during her minority, and in this respect the judgment must bo amended.

V.

Opposition was made to a part of the commissions of the administra-trix, on the ground that, as Mrs. -Boyer was the owner of one-half of the community property inventoried as belonging to Dr. Boyer’s succession, she could not charge commissions on that portion of it. There is no force in this proposition and no law to sustain it. The matter must be determined by the condition of things existing when the succession is opened and the inventory made. The surviving wife’s ownership of any part of the community property is contingent, or at least subject to her right of renunciation; and the whole is liable to be absorbed by the community debts, and she can only accept the community subject to the payment of the debts.

The entire community assets were, therefore, properly placed on the inventory of Dr. Boyer’s succession, and to be administered as a part thereof, and the judge of the first instance did not err in rejecting the opposition in this respect.

There was a small credit claimed in, the account of $30 15, for commissions paid for collecting some small debts due the succession. This was properly disallowed in the court below. There was no necessity shown for the employment of the collector and, besides, it was a charge that the commission allowed the administratrix was designed to cover,

VI.

The administratrix, in her account, charged the community with $8400, for rent of the Terpsichore street residence during the time of the second marriage, subject to a credit of $4123 96 for taxes and insurance on the property.

As tlie revenues of tlie separate property of either spouse belongs to the community, and as the community is properly chargeable with the taxes, repairs and insurance on the separate property used by it, the debit and credit as to these items was, by the terms of the judgment, properly stricken from the account.

The account further places among the assets of the community the entire charge made therein for the maintenance of Miss Boyer, amounting, as shown, to $15,042 33, and credits this sum with $7886 03, the capital and interest of Miss Boyer, as stated therein. And inasmuch as the judge rejected this charge for expenses of maintenance, he therefore properly allowed the administratrix to withdraw the above credit against the same. In fact the account was formulated, and the whole contention of tlie counsel of the administratrix with respect to it made upon the theory that the settlement of the community of acquets, and i'/aim is like that of a settlement of an ordinary partnership. This is a mistake. The community is not strictly a partnership, and its administration and partnership are governed by special laws. C. C. 2807. Whilst approving this ruling, we mention it more for the purpose of saying, with a view to prevent confusion, that this disposition of the matter is not to affect in any manner the opinion herein expressed and the decree we shall render touching the recovery by Miss Boyer of the interest on her capital during her minority.

This completes the review of all the matters presented by the appeal.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be amended by placing Miss Edith Boyer, the opponent, on the account of the administratrix of P. C. Boyer’s succession as a creditor of the community, besides for the sum of $7135 55 allowed by the judgment, also for five per cent interest per annum on the amounts composing said sum, as follows, to-wit:

On $1650 30 from the 21st May, 1868;
On $1006 00 from the 15th July, 1868;
On $ 675 25 from the 10th July, 1869;
On $3258 00 from the 15th December, 1869;
On $ 546 00 from the 23rd February, 1870;

said interest to run from the several dates mentioned till the 14th of May,' 1876 (the majority of Miss Boyer), and then cease. That the judgment in every other respect, as thus amended, be affirmed, with costs.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 8702.
    Bennett B. Hotchkiss vs. Gretna Ginnery and Compress Company.
    In a contract of employment for one year at a stipulated annual compensation, an express proviso reserving to the employer tlie right to discharge at any time, if dissatisfied with, the manner in which the employee performs his duties, is a valid and legal agreement which the courts must enforce.
    The employer has no right to discharge, prior to the end of the term, for any other cause than because he is dissatisfied ¡ and if it appears that the discharge was for other cause, as for instanoo, because his services were no longer needed in the business, or because the employer wished to reduce the number of his employees, or the like, and that the alleged dissatisfaction was a mere pretext, we should hold the employer responsible.
    But, in this case, the evidence satisfies us that the dissatisfaction was the true cause of the discharge and this exempts the employer from responsibility.
    PPEAL from the Civil District Court for -the Parish of Orleans. haga/rus, J.

      J. JET. Ferguson for Plaintiff and Appellant.

      Hunt & LaVillebeuvre for Defendant and Appellee.
   The opinion of the Corn’t was delivered by

Fenner, J.

Plaintiff was employed by defendant as an agent for purchasing cotton and cotton seed, for the term of one year,(,at a stipulated compensation of $1500 for the year, and necessary traveling expenses, by a written contract containing this provision: “The company reserve the right to dispense with said Hotchkiss’ services at any time, if the business for which he is employed is not done satisfactory to the company.”

Having- been discharged prior to the expiration of the year, as he alleges, without cause, ho sues for the salary of the entire term. -

The company defends on the grounds that they discharged him because they were not satisfied with his conduct of the business, and that they had good cause for dissatisfaction, which are set forth in their answer.

Plaintiff’s counsel, in Iris argument, treats the case precisely as if it were to be governed by article 2749 of the Civil Code, which provides: “ If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of the services arrived.”

But lawful contracts are the law which the parties make for themselves : and it is evident that the parties here have made for themselves a different law from that above provided and have reserved to the emi>lo,yer tlie positive right to discharge the employee at any time when he shall not be satisfied with the manner in which the employee conducts the business. The legality of such a contract cannot be questioned. The only point'is as to its meaning, and that seems to be expressed in clear language. Satisfaction is a mental condition existing in the mind of the person to be satisfied.

If the company discharged plaintiff because his execution of the business was not “ satisfactory to the company,” it has merely exercised a right expressly granted.by the contract, and plaintiff has no cause of action.

Such contracts have been upheld and enforced by this Court. Bietry vs. New Orleans, 24 A. 23; Hunter vs. Ins. Co. 26 A. 14.

It has, however, been held, and we think properly, that the right to discharge, if not satisfied, does not authorize discharge for any other reason. 2 Parson’s Cont. p. 41; Monell vs. Burns, 4 Denis, 121; Lantry vs. Parks, 8 Cowen, 63.

Defendant would not have had the right to discharge plaintiff, for instance, because his business no longer required his services, or because it was to its interest to reduce the number of its employees, or for like reason foreign to the manner in which he performed his duties.

If the evidence established that the motive of their action had been of those above indicated or the like, and that the allegation of dissatisfaction was only a pretext, wc should not hesitate to reject the defense.

For the purpose of establishing the reality of the motive, it. was perfectly proper for the defendant to plead and prove the causes of their dissatisfaction. We should examine this evidence, however, not with a view to determine whether it discloses sufficiently u serious ground of complaint ” to justify the discharge under the terms of article 2749, C. C., but whether, in fact and in good faith, defendant discharged idaintiff because his conduct of the business was not “ satisfactory to the company.”

We have examined this evidence with great care and it establishes conclusively that defendant was very much dissatisfied with plaintiff’s conduct of the business.

Whatever be the force of the excuses and explanations furnished by plaintiff, the stubborn facts remain, that he greatly disappointed the expectations of defendant; that his expenses, however necessary and proper, were much larger than defendant desired or expected; that, during the whole term of his employment, at heavy cost, no cotton or cotton seed were actually secured by him for defendant except an insignificant quantity; that defendant sent boats and barges on long trips, at an expense of one hundred dollars a day, to get cotton which plaintiff had reported ho had engaged, and by wliomsoever’s fault failed to get it; that defendant’s superintendent in the country had communicated to the company his dissatisfaction with plaintiff’s conduct of the business, and had given the latter a peremptory order to leave his horse and trappings and report forthwith to New Orleans to the company, which he had advised to discharge the plaintiff on the ground of his inefficient and unsatisfactory performance of his duties. He was then discharged. All the agents of defendant testify that he was discharged because they were dissatisfied, and negative every suggestion that there was any other cause. Defendant acted within the terms of its contract.

In the language of the Supreme Court of Massachusetts in an analogous case: it may be that plaintiff was injudicious or indiscreet,” in marring his term of service “ dependent upon a contingency so hazardous or doubtful as the satisfaction of a party.” But of that he was the sole judge. Against the consequences resulting from his bargain, the law can afford him no relief. Having voluntarily assumed the obligations and the risk of his contract, his legal rights are to be determined solely according to its provisions. McCarren vs. McNulty, 7 Gray, 141; Gray vs. Central R. R. Co. 11 Hun. (N. Y.) 70.

Judgment affirmed.


author: Manning, J. Poci-ié, J. Bermudez, C. <1. Bermudez, C. J.

text:
    No. 8930.
    W. G. Henry vs. Paul Tricou.
    A motion to dismiss for incompleteness of the record must contain specifications of the particulars in which it is incomplete.
    The fact that, an appeal to the court of appeals was taken simultaneous with an appeal to this court is no ground for dismissal of the appeal here, there being no suggestion of our want of jurisdiction .
    An assignment of errors is in timo if filed -within ten days after the appeal is lodged in this Court.
    An assignment of errors on appefu tC. P. 897) is not entirely -vitiated because it contains grounds involving alleged errors of fact.
    The only effect is that such grounds will ho disregarded by the appellate court, hut alleged errors of law appearing on the face of the record will he considered and passed upon.
    Property in the possession of the sheriff under a legal writ at the instance of a judgment and privileged creditor cannot be seized and sold to the injury and detriment of such creditor. All that can bo seized are the rights and interest of the debtor subject to the pre-existing execution.
    The purchaser of such rights cannot as such enjoin and restrain the previous execution.
    The recent amendment to the Constitution touching the .appellate jurisdiction of this Court, does not apply to a case in which the ownership of property valued at $2000 and damages assessed at $100, are claimed.
    A petition for a rehearing which urges the points previously pressed and passed upon, offers no merit.
    APPEAL from the Civil District Court for the Parish of Orleans. _ Bightor J.

      T. M. Gill for Plaintiff and Appellant.

      Braughn, Budín <& Dinlcelspiel and W. O. Hart for Intervenor and Appellee.
   On Motiox to Dismiss.

The opinion of the Court was delivered by

Manning, J.

The motion is based on five grounds:—

1. Non-compliance with Rule 1 of this Court, in that “the recoil?is not copied chronologically, and many unnecessary papers appear.”

If we should begin dismissing appeals from this cause, we should clear the docket with unexampled rapidity.

2. The mover files “a certified copy of the docket of the lower court, from an examination of which and comparison with the transcript, the latter will be found defective and incomplete.”

The copy consists of five pages of entries, each line of each page containing but one entry, and from this mass it seems we are expected to pick out such as are not found in the transcript, there being no specification of any. We are not equal to that undertaking.

3. “The return of the sheriff dated June 27, 1883, is given in the record while the judgment appealed from was rendered April 3, J 883, long prior.”

At this stage of the case we are unable to understand what this means, or what bearing it has upon this motion.

4. That an apjieal from the judgment in this suit was taken to the court of appeals at the same time this appeal was taken, and is still pending there.

That does not affect the question of our jurisdiction, for if we have jurisdiction wo must exercise it, and it does not yet appear that wo have not, nor does the mover suggest that we have not.

5. That there is not in the record any testimony, or statement of facts, or bills of exception, or assignments of errors.

Au assignment of eiT'ors was filed within ten days after the record was brought up. Code Prae. art. 897.

The motion is refused.

On tiie Merits.

Poci-ié, J.

The following are the salient facts of this very complicated litigation :

Plaintiff obtained a moneyed judgment against the defendant, with recognition of a privilege on a grist mill, apparently owned by, and then in the possession of, his debtor.

At the date of bringing 1ns suit, March 22, 1882, he obtained a writ of sequestration of the mill, which was subsequently seized under a writ of fieri faeias, on his judgment, on the third of May following.

In the progress of his execution he was first encumbered by an injunction at the instance of S. D. Moody, who claimed to be, and was judicially recognized, as the owner by purchase from Tricon, of one undivided'half of the mill.

The judgment in favor of Moody was affirmed on appeal by the Court of Appeals, and is now final.

After ordering the sheriff to proceed with the seizure as' to the remaining half of the mill, plaintiff was next encountered by an injunction at the instance of Tsaac TJllmann, who claimed ownership of the whole mill, for the one-half by purchase from Moody ; and for the other half by purchase at a sheriff’s sale in execution of a judgment rendered by the Second City Court of New Orleans, in the suit of McEnany against Paul Tricon, the defendant herein, in which case the property in question was adjudicated to him on June the 10th, 1882.

TJllmann’s injunction was maintained by the lower court, and he was recognized as owner of the entire mill. The present appeal was taken from that judgment.

From the foregoing statement it appears that the ownership of U11-mann to the half of the mill, which he acquired from Moody, has been settled by a final judgment of the Court of Appeals, and that that branch of the litigation is now eliminated from further discussion.

The question to be determined by us involves the validity of the title set up by Ullmann, under the adjudication made to him by the sheriff, in the case of McEnany vs. Tricon., from the City Court.

At this stage of our opinion we note Ullmann’s objections to the condition of the transcript, which does not contain the evidence taken on the trial below, and which is charged to be defective in several other respects. These objections have been disposed of in onr opinion on the motion to dismiss.

But we are told that plaintiff’s assignment of errors does not comply with the legal requisitos, and that the errors assigned involve findings of the lower court on questions of fact, and are not errors appearing on the face of the record.

Several of the grounds relied upon by appellant are amenable to that objection, and of course such grounds should not and will not be considered or entertained by us on this appeal.

But such defects cannot and do not vitiate the whole document, and hence they do not preclude an examination of such errors as are apparent on the face of the record.

Of such a category is the alleged error of the lower court in holding that the sheriff, who had possession of property under the writs of sequestration and of fieri facias, issued at the instance of the plaintiff, could make a seizure and a sale of the property under a subsequent writ of fi. fa. at the instance of a third party, to the detriment of.the previous writs, under which he held the property, and in a manner to destroy and annihilate the rights of a previous seizing creditor.

The mere statement of this proposition finds its answer in the elementary rules of our practice.

Tn this case the record shows that when the sheriff executed the writ of fi.fa. in the case of McEnany, he had possession of the property in question under plaintiff’s writs, in execution of his judgment and in the enforcement of his judicially recognized privilege.

It is plain, therefore, that by his subsequent seizure the sheriff could not divest plaintiff of his previously acquired rights. And from his return, which is made part of Ullmann’s petition, it is clear that the sheriff did not attempt to operate such a result, for he therein informs us that, what he purported to seize and what he sold to Ullmann in the McEnany execution, were “the right, title and interest of defendant, Paul Tricon, the one undivided half interest in and to the ownership of” a certain mill, etc.,

Such a seizure and the sale made thereunder, could not affect the rights of plaintiff under his judgment and under his two writs. The title which Ullmann acquired by his purchase at that sale, was the interest of Tricon, the defendant in execution, and no more. It is too plain for discussion that such a title conferred on Ullmann no greater power than Tricon himself could exert in the premises, and certainly he thus acquired no right to enjoin plaintiff’s execution, .1 A. 174, Michel vs. Her Husband.

Tlie district judge, therefore, erred in maintaining Ullmann’s injunction, in so far as it restrains the seizure of one undivided half of the mill, and plaintiff is entitled to statutory damages, which he prays for. Under these views of the controversy, it becomes unnecessary to notice or discuss and decide many other issues and points made in the case.

The judgment appealed from is, therefore, annulled and set aside, the injunction obtained by Ullmann is, therefore, dissolved as to one-lialf of the mill under seizure, and his petition for injunction is dismissed at his costs in both courts.

And it is further ordered that Isaac Ullmann and his surety on the injunction bond be condemned to pay twenty per emit damages on plaintiff’s judgment.

Bermudez, C. <1.

In this case, counsel for intervenor having called the attention of the Court to the fact that, in his opinion, this court lias ceased to have jurisdiction over this case in consequence of the recent amendment to Article 81, and requested a solution of the question, that he may be apprised whether an application for a rehearing will or not be entertained.

The Court answers that the matter will be considered and determined when the application shall have been filed.

ON Application for Rehearing-.

Bermudez, C. J.

The intervenor, Ullmann, claims :

1. That this Court had no jurisdiction over this case when it was decided, and were the Court to hold otherwise, lie-charges :

2. That the judgment rendered is erroneous in several respects.

I.

It is true that this case was decided after the promulgation of the G-overnor’s proclamation of the adoption of amendment to Article 81 of the Constitution; but, whether it was then determined or not, is immaterial, for the reason that the suit brought by Ullmann, in the form of an intervention, coupled with an injunction, involved the ownership of the whole mill, under two different titles, one to half from Moody, another to the remaining half from a sheriff’s sale, under a writ levied after seizure under plaintiff’s writ. The mill was worth two thousand dollars and one hundred dollars for damages were claimed •inswpra. So that the controversy involved $23 00, and is one over which this Court would still have jurisdiction to determine.

II.

The petition for a rehearing does not state any ground which was not urged previously and is devoid of merit.

Rehearing refused.


author: Bermudez, C. J.

text:
    No. 9094.
    The State ex rel. The Board of Liquidation vs. The City of New Orleans.
    Section 14 of Act No. 33. of 1877, wbicli authorizes the city of New Orleans to apply the stock which it acquired in the Water-works Company, to the reduction of the bonded or floating debt is repealed, altered or modified by section 5 of Act No. 133 of 1880.
    Under the terms of that section, the Board of Liquidation is entitled to receive from the city all its property, real and personal, not dedicated to public use, and the city can be compelled by mandamus to turn it over to that auxiliary State functionary.
    The stock in question, although declared to be exempt from seizure, has never been pronounced to be and is not property dedicated to public use. It should be transferred by the city to the Board, to be disposed of and applied as the law directs, by that organization.
    PPEAL from tlie Civil District Court for the Parisli of Orleans. Mmvroe, J.

      Henry 0. Miller for the Relator, Appellee.
    TP". H. Bogers, City Attorney, and Chas. F. Buck for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a proceeding by mandamus to compel the City of New Orleans to turn over to the relator, 927 shares which it owns of the stoclc of the New Orleans Water-works Company and also the dividends accrued thereon.

The resistance of the city rests on two grounds :

1. That the shares are not affected by section 5 of Act 133, of 1880, which directs the turning over and transfer to said Board all the property of the city, real and personal, not dedicated to public use.

2. That the same section 5 does not repeal section 14 of Act 33, of 1877, which authorizes the city to apply the stock to the reduction of the bonded or floating debt of the city, under stated terms and conditions.

In substance, the defense is: that the stock is property dedicated to public use and that the city has never been divested by law of its control and possession over it.

I.

The section of the Act of 1880, alluded to, reads as follows:

“Be it enacted, etc., That it shall bo the duty of the city authorities, as soon as possible after the organization of the Board of Liquidation of the city debt, to turn over and transfer to the said Board, ail the property of the city of New Orleans, both real and personal, not dedicated to public use, and the Board of Liquidation shall be and is hereby empowered and authorized to dispose of said property on such terms and conditions as may be deemed favorable; the proceeds of snoh sale or sales to be deposited with the Fiscal Agent of the Board at credit of “ City Debt Fund.”

The Board of Liquidation, created by that act, is a State functionary, clothed with auxiliary municipal powers, contemplating a liquidation of part of the affairs of the city of New Orleans, concerning its public debt, by talcing possession of its available property, reducing it into money and satisfying its creditors out of its proceeds, as far as practicable.

When the law-maker directed the transfer by the city to the Board, of all its property, real and personal, not dedicated to public use, he intended that class of property which was not needed for public necessities, and not the other class, consisting, for instance, of the courthouses, school-houses, engine-houses, markets, the city hall, the asylums the jails and police stations and the like, which are actually needed and dedicated to public use.

It is perfectly true, that, as was declared by the United States Supreme Court, the water-works wore not liable to execution of judgments against the city, that the Legislature intended to change the form of the city’s ownership of that property into that of shares of the capital stock of a company, of which it was, at first, the sole owner; that these shares represented the water-works of the city and nothing else; and that the shares were entitled to the same exemption which belonged to the property represented by those shares. 105 U. S. 603.

But that judicial declaration of the character of that stock merely exempts the stock from seizure. It does not announce that it is property dedicated to public use.

It is indeed difficult, if not impossible, to conceive how shares of stock can be viewed as dedicated to public use, unless there be exhibited, which is not done, some legislative enactment consecrating them, formally, for such purpose or object.

Shares of stock are valuable securities equivalent to a capital yielding revenue and are susceptible, by sale or pledge, of realizing money where the power to dispose of them, in either mode, exists.

In the present instance, the other section, from the Act of 1877, authorized the city to dispose of the shares on certain terms and conditions.

We do not conceive that they constitute property dedicated to public use and consider that they should be delivered to the relator, unless the second ground is well taken.

II.

Section 14 of Act 33, of 1877, reads as follows:

“Be it enacted, etc., That the city of New Orleans, through its council, shall have authority to apply the stock subscribed for by said city as herein provided, to the reduction of the bonded or floating debt of said city, on such terms of adjustment as may be mutually agreed upon between the City Council and the holders of such bonded or floating-debt ; provided, said stock shall not be sold at, less than par and that, when sold for obligations of the city, it shall only be under sealed proposals, after not less than fifteen days’ advertisement in two daily papers, to the bidders who shall offer said obligations at the most advantageous rate, the Council reserving the right to reject any and all bids.”

It is evident that this section as also that previously quoted, which is of more recent date, cannot co-exist and be made to operate simultaneously, for there exists between them ’an incompatibility which impresses upon them a repugnancy which renders their provisions antagonistical.

In enacting laws, the Legislature must be presumed to act with deliberation and with knowledge of all existing laws on the same subject, and, lienee, it can be well concluded, that it intended to abrogate a prior law on the same subject, when the repugnancy between the two is irreconcilable. Sedgwick, 104.

In the present instance the two laws are special laws, relating to the affairs of the city of New Orleans, the liquidation of its debt, the sale of- its property for the satisfaction of its obligations.

By the section under consideration, which forms part of an act passed in 1877, relative to the water-works, which were then owned by the city, and to the liquidation of the bonded and floating debt of the city, the Legislature merely authorized the city to apply the stock which it was to receive in place of the works, to the reduction of its debt, prescribing- the terms and conditions upon which the same could ho sold and applied.

By the section first quoted, which forms part of the Act of 1880, which created the Board of Liquidation and specified its rights and obligations, the powers of liquidating and settling its bonded debt were withdrawn from the city and vested in that hoard, its property not dedicated to public use was ordered to be turned over, and authority to dispose of the same as may be deemed favorable, was vested in the same auxiliary organization.

The city of New Orleans is a State functionary also. Its powers are subject- to fluctuation with the legislative will, where change is not guarded against by the organic law and where the vested rights of third parties are not to be injuriously affected. No such shelter by the Constitution is alleged or established, no such parties are heard to complain in this controversy. This city advances neither.

Whether in disposing of the shares in question the Board would or not be bound to observe the limitations imposed by section 14 of the Act of 1877, upon the action of the city, is a question not before us and on which we expiress no opinion.

It is, therefore, patent that the two sections being inconsistent, the one previous in time must be considered if not entirely repealed, at least modified to some extent by that last adopted. The x>ossession and control of the shares and dividends should pass from the city to the Board of Liquidation, to be by it administered or disposed of as the law directs.

It is, therefore, ordered and decreed that the judgment appealed from be affirmed, with costs.


author: Pociié, J.

text:
    No. 8958.
    James M. Weymouth, Receiver, etc., vs. Mrs. Mary Roselius, Wife of Godefroy Bouny.
    The appointment of a receiver to a corporation by one of tho district courts for the Parish of Orleans, when it appears that the matter of the liquidation of that very corporation was pending in another and different court for the same parish, is the act of a court without jurisdiction over the subject-matter, and is therefore absolutely null and void.
    PPEAL from the Civil District Court for the Parish of Orleans. Jr\ Lazarus, J.

      T. A. Bartlette and I). 8. Bryan for Plaintiff and Appellant.

      Henry 0. Miller and Leovy dj Kruttselmitt for Defendant and Appellee.
   The opinion of the Court was delivered by

Pociié, J.

Plaintiff brings this suit in his alleged capacity of Receiver of the New Orleans Draining Company, against the legal representative of the succession of Christian Roselius, formerly the receiver of said company, for an account of the moneys alleged to have been received by him in his aforesaid capacity and unaccounted for, or in default, for judgment against him in the sum of $45,609 66.

By way of exception and answer, tlie defence urged numerous grounds in bar of plaintiff’s action, tlie most prominent of which was an exception to his capacity, based on the ground of the absolute want of jurisdiction in the court whence he had received his appointment.

This appeal is brought up by plaintiff from a judgment ordering the defendant to render an account of all moneys received and expended by Christian Roselius as receiver of the company aforesaid, from and after the tiling of his last account, which had been presented in January 1860, and rejecting the demand in all other respects. Plaintiff is not satisfied and hence he appeals. And defendant, moving for an amendment, prays for the rejection of the entire demand.

The record shows that the liquidation of the New Orleans Draining Company was begun in May 1856, at the instance of the city of New Orleans, as a stockholder, in the then Third District Court of New Orleans, and that Christian Roselius, who was at that time appointed receiver of the concern, continuéd in the exercise of Ms functions until his death in September, 1878.

It then appears that on his petition addressed to the Third District Court for the Parish of Orleans, in September 1877, “In the matter of the New Orleans Draining Company,” Plaintiff Weymouth was appointed receiver of said company.

The point raised by the defendant in the'exception to plaintiff’s capacity is, that the court which entertained his application for appointment as receiver had not then, and never had had, jurisdiction over tlie matter of the liquidation of the New Orleans Draining Company, which was originally entitled: “ Tn the matter of the New Orleans Draining Company, praying for the homologation of the assessments, etc. No. 5108 on the docket of the Third District Court of New Orleans.”

The point is well taken and it must be sustained.

Under the provisions of Act No. 46 of 1868, all cases pending in the Third District Court of New Orleans created under the Constitution of 1864, except appeals from justices of the peace, were transferred to the Seventh District Court for the Parish of Orleans, created under the Constitution of 1868. Hence, the last mentioned court thus became vested with the exclusive jurisdiction of the matter of the New Orleans Draining Company, etc.

Now, under the effect of Act No. 2 of the extra session of the Legislature of 1872, the exclusive jurisdiction over this matter was vested in the Fourth District Court for the Parish of Orleans, where it was pending at the time that plaintiff presented Ms application to the Third District Court for the Parish of Orleans, created under the Constitution of 1868. It follows, therefore, that the latter tribunal was absolutely without jurisdiction over the matter in question, and that all its acts in the premises were absolutely null and void — just as void as would be the appointment by one of the divisions of the present Civil District Court for the Parish of Orleans of an administrator or executor to a succession which had been allotted to, and was actually pending in, another and different division.

It is, therefore, clear that plaintiff has no capacity to stand in judgment as receiver “in the matter of the New Orleans Draining Company,” and that his receipt to the defendant would not shield her against an action by a receiver legally and duly appointed for said concern.

The judgment appealed from is, therefore, reversed and set aside. It is now ordered that the exception of want of capacity of plaintiff to represent the New Orleans Draining Company as receiver be maintained, and that his suit be dismissed at his costs in both courts.

Kehearing refused.


author: Todd, J. Fennek, J.

text:
    No. 8653.
    W. & H. Stackhouse vs. James E. Zuntz.
    Only absolute nullities in tbe original judgment can be opposed to its revival; and as a general rule, suob nullities must appear on tbe face of the proceedings.
    “Wliere a suit is instituted in one parish, it may by consent of parties be transferred to another; and if such latter court has jurisdiction over the subject-matter, the judgment rendered therein, if not otherwise void, will be valid.
    If a party to a suit dies during its pendency in the Supreme Court and his legal representatives are then made parties, and the case is remanded to the lower court for another trial, and at this trial the same counsel appear for such representatives and another judgment is rendered in said court and is again appealed to the Supreme Court, and the bond of appeal is signed,by said representatives of the deceased litigant, the judgment • appealed from and that rendered on said appeal will not be absolutely null by reason of the failure to suggest in the lower court the death of the litigant and to enter on the minutes the appearance of his representatives.
    The discharge of the judgment debtor in bankruptcy cannot be successfully opposed to the action of revival, and his assignee is the proper paity against whom the proceeding should be conducted.
    APPEAL from the Civil District Court, for the Parish of Orleans. Lamms, J. -

      S. B. Magruder, F. L. Bichm'dson and F. D. White for Plaintiffs and' Appellees:
    1. The absolute nullity of a judgment is a good defence to an action to revive it. Kiug vs, Pickett et als. 31 A. 1006.

      2. A judgment against a dead man is an absolute nullity, and does not affect his heirs not made parties. McClosltoy, Bigley & Co. vs. "Wingfield & Bridges, 29 A. 142, Edwards vs. Whited. 29 A. 650 ¡ 5 B. 508; 5 'A. 737.
    3. There can he no evidence of the service of petition and citation except the sheriff's return. Harris vs. Alexander, 1 11. 30.
    4. If one dies pending a suit and his heirs are made parties, yet a judgment against him eo nomine will not hind them. Montgomery vs. Sawyer, 100 TJ. S. 571.
    5. A natural tutrix cannot he appointed or confirmed by the judge until he has caused to be recorded in the mortgage hook the clerk’s certificate of the amount of the minor’s property as shown by the inventory. Any appointment of sucli tutrix before such recording is null and void. Act 95 of 1869, seo. 2.
    6. All laws in the interest of minors must ho strictly enforced. Bernard vs. Vignaud et als. 1 H. S p. 30.
    7. The natural tutrix administers only by tolerance. Labranche vs. Trepagnier, 4 A. 561.
    8. Appealing from a judgment and signing an appeal bond does not make one a party to the judgment not rendered against him. Norton vs. Jamison, 23 A. 104.

      W. 8. Benedict for the assignee of the bankrupt, Appellee.

      Jos. P. JTornor and £\ W. Baker for Defendant and Appellant:
    1. Ho plea will he entertained and no evidence considered, which assails the validity of the judgment sought to he revived. 29 A. 69 ; 23 A. 173, 437; 34 A. 340.
    2. The sole issues that can be tried in a suit to revivo a judgment are, whether it had ever been rendered, and whether it had become extinct. 30 A. 1331; 31 A, 326; 29 A. 69; 33 A. 342.
    3. A final judgment rendered by the Supreme Court is not amenable to an action of nullity, instituted more than one year'after the date of the judgment, on the ground of error of fact and law. Such a judgment has the force of res adjudicate/, as to the parties to it. 31 A. 467.
    4. To revive a judgment against a discharged bankrupt, the citation must be served on the assignee. 27 A. 242.
    5. The validity of a judgment appointing and confirming a natural tutrix, rendered by a court having jurisdiction of the persons and property of the minors, cannot be inquired , into by a stranger, and such appointment cannot he a nullity until it is declared to be such by competent authority; and the heirs can he brought into court during the existence of such a judgment by service upon such natural tutrix. Arguendo from 15 L. 173 ; 10 M. 485 ; 5 H. S. 624; 5 A. 565, 197; 2 A. 465; 3 Bob. 275; 7 A, 136 ; 11 A. 501.
   The opinion of the Court was delivered by

Todd, J.

This is an action to revive a judgment rendered in the Fifth District Court of the Parish of Orleans on the 20th February, 1872. The suit in which the judgment sought to he revived was rendered, was an injunction suit in which an order of seizure and sale, taken out in the District Court of the Parish of Plaquemines by the defendant, James E. Zunts, against a plantation in that parish, was enjoined by W. Si H. Stackhouse, the owners of the plantation.

The debt for which the order issued was, in capital, $50,000, and upon final trial the injunction was dissolved, with twenty per cent damages. This is tlie judgment involved in this suit. It is brought against the administrator of the succession of Haywood Stackhouse, who died during the pendency of the original litigation, and his surviving widow; and also against the assignee of William Stackhouse, who, during the course of said proceedings in the first suit, surrendered in bankruptcy.

The revival of the judgment is resisted on the ground that the original judgment was an absolute nullity for several causes assigned, and which we will proceed to consider in their order:

1. It is urged that the court which rendered' the judgment was without jurisdiction. As stated, the order of seizure and sale issued from the District Court of Plaquemines, and the injunction suit against it was instituted in the same court. After being filed, it was transferred by consent of the parties thereto to the Fifth District Court of the Parish of Orleans. This latter court liad jurisdiction over the subject-matter of the suit, and in this important respect -was a competent tribunal to try the case. Whatever may have been the tenor of the earlier decisions to which we are referred as to the effect of a waiver of the jurisdiction as to persons, it suffices to say that they have been expressly overruled by the later ones; and it is now the settled jurisprudence that parties may by consent waive personal jurisdiction and submit their controversy to the determination of another tribunal than that of their domicile, having jurisdiction over the subject-matter, and that this latter becomes thereby vested with complete jurisdiction over the cause. 29 A. 194; 31 A. 88; 30 A. 59; 33 Á.655.

The proceedings and judgment were not, therefore, void for this cause.

2. It is next urged that the final proceedings were conducted in the said Fifth District Court and judgment therein rendered, after the death of Haywood Stackhouse, and that neither his succession nor heirs were represented in said court.

This necessitates a brief history of the suit. Its institution in the parish of Plaquemines and its subsequent transfer to the Fifth District Court of New Orleans has been mentioned. After its transfer thereto, it was twice tried in the said Fifth District Court. From the first judg - ment there was an appeal to the Supreme Court. Whilst pending there, Haywood Stackhouse died. His death was suggested and an order entered making his heirs — who wore his children — parties thereto. One of them was a major and the rest minors, purporting-to bo represented by their mother and natural tutrix. It does not appear from the record that this order was served, but from the secondary evidence supplying the loss of the papers, we are satisfied that service of the order was duly made. In the further proceedings in the Supreme Court, these representatives of Haywood Stackhouse, deceased, appeared by counsel. The appeal resulted in a reversal of the judgment and a remanding of the case to the lower court for another trial. This trial was had, and the heirs purport to have been represented therein by the same counsel who had appeared for them in. the Supreme Court and procured the reversal of the judgment. This second trial in the district court resulted in a judgment in favor of the defendant, Zuntz, dissolving the injunction, with damages; and this is the judgment before referred to and now sought to be revived.

From this judgment a second appeal was taken to the Supreme Court. The appeal bond was signed by the heir of age, assisted by her husband, and the tutrix of the minors. Couns.el also appeared for the parties in the Supreme Court on this second appeal. The judgment of the district court was, in this instance, affirmed; and an application for a. rehearing — which set up the same grounds of nullity against the proceedings mentioned above and that we are now considering — was made and refused.

It is contended that after the case was remanded for another or second trial in the district court, no order of revival and no formal appearance was entered for those that had been previously made parties in the Supreme Court. Such an entry would have been more regular; but considering that an appearance was made in that Court by the same counsel who had been previously conducting the proceedings, and that the order of appeal was taken in behalf of these representatives of the deceased, and the appeal bond was signed by them in person as stated; and furthermore, as the proceedings appear regular upon their face, we cannot conclude that the omission referred to was absolutely fatal, to their validity and to that of the judgment.

3. The next ground of nullity alleged, is, that the mother and acting tutrix of the minor heirs was without authority to represent them, and in fact that her confirmation as tutrix was absolutely null, for this reason, that no abstract of the inventory of their estate had been recorded in the book cf mortgages, prior to the order of the judge confirming her as natural tutrix.

The oyder, in question, is regular on its face, letters of tutorship were issued to her, under authority of which she acted in these proceedings and also in other proceedings relating to the interests of the minors. The matter of appointment or confirmation of the tutrix was clearly within the power and jurisdiction of tlie judge making it, and the required abstract was recorded within a few days after the date of a second order of confirmation or appointment.

It is true that the language of article 321, of the Code, seems to be imperative in requiring that this abstract must be made out by the clerk and duly recorded, and the certificate of the recorder to the fact of its record, presented "before the judge makes the appointment. This article is, in part, an embodiment of Act 95, of 1869; and if the article stood alone it would give great plausibility to the pretensions of defendant’s counsel; but it does not stand alone, and should properly be construed in conjunction with article 304, of the Code. This last article provides, among other causes for the removal of a natural tutor, his neglect to have this inventory made and recorded at the time or within the period prescribed by law — that is, as we construe it, as required by the article first above cited.

A tutor could not be removed unless he had first been appointed; and if his appointment, under the circumstances appearing in the instant case, was absolutely null, then there was really no appointment made and no tutor who could be removed. In other words, the provision for the removal of the tutor in such case, precludes the idea that the order appointing him was wholly inoperative and absolutely void. Whatever the counsel may suggest as to the way or means by which this article became inserted in the Code, by the act adopting it as revived it became as much a part of the Code as any other article therein.

Besides, it may be well to state in this connection, that as a general rule absolute nullities in judicial proceedings are such as result from radical defects, omissions and irregularities, appearing on the face of the record and are not dependent on matters en pais to be established by evidence aliunde.

As has been stated in previous decisions on this subject, the law providing for the revival of judgments, did not intend to prescribe another method or way of annulling them; and, on the other hand, whatever may be their defects when rendered originally, the judgment of revival does not cure them. It merely preserves the judgment with whatever of strength or weakness it originally possessed; and the action to revive can only bo successfully resisted by showing that, owing to nullities of so absolute a character, there never, in fact, existed or was rendered, a judgment to be revived.

4. In addition to the above, the assignee in bankruptcy. of William Stackhouse interposes the discharge of the bankrupt against the revival

of the judgment against Mm. TMs action is not intended to impose or renew any liability against the bankrupt, from which he has been discharged. The assignee is the sole representative of the bankrupt’s estate, and it may be that the judgment confers some right upon or against that estate, though the bankrupt may have been discharged from personal responsibility. We think the assignee was properly made a party to the action, and the only one that could represent the bankrupt debtor or Ms estate. The law accords to the judgment creditor the right to revive his judgment, and this right he possesses even if it is not accompanied with the right to execute or enforce it against the bankrupt; and he cannot be deprived of this right by the bankruptcy of the debtor. The judgment may still exist although the personal obligation of the debtor, which it imparts, may be extinguished or at least discharged. Alter vs. Nelson, 27 A. 242; Grayson vs. Norton, decided at Monroe, in 1878, and unreported; Wheeless vs. Fisk, 28 A. 731.

It is also urged that Stackhouse was adjudicated a bankrupt during the pendency of the case in the Supreme Court, but that his assignee was not made a party. The counsel is mistaken, the judgment became final in said Court on the 1st December, 1873, and-the adjudication referred to, took place on the 27th of December, same year.

Our conclusion is that the lower court erred in dismissing the action.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and proceeding to render such judgment as should have been rendered, it is now ordered, adjudged and decreed that the judgment rendered and signed on the 5th of March, 1872, in the late Fifth District Court of the parish of Orleans, in a case entitled W. & H. Stackhouse vs. James E. Zuntz, as set forth and described in the petition, be and the same is hereby revived.

Appellees to pay costs of both courts.

On Application eok Reheaking.

Fennek, J.

After an attentive consideration of the various charges of error assigned in this application, we find no merit iu any of them, and no occasion to assign additional reasons in support of the original opinion.

One point, however, not referred to in that opinion requires mention, which is, that the judgment sought to bo revived was rendered against Haywood Stackhouse, eo nomine, after his death. The point is certainly a grave one; but considering the peculiar circumstances of this case and the fact that his representatives were parties, before the judgment was rendered, and actually appealed from it to this Court, where it was affirmed, we are not prepared now to treat it as an absolute nullity of a character such as would justify us in refusing to revive the judgment.

It may be, that, in some form of proceeding, the judgment might be made operative against the representatives. On that subject we express, at present, no opinion.

The effect of the judgment of revival is not to lend any force or effect to the judgment which it does not intrinsically possess. We prefer to postpone such questions until proceedings necessarily involving them are presented for our consideration.

Rehearing refused.


author: Fenner, J. Bermudez, C. J.

text:
    No. 9031.
    Succession of Kate Townsend.
    Where the opposition of the Public Administrator to the confirmation of a testamentary executor asks that the confirmation he refused and that he, himself, bo appointed and confirmed as dative testamentary executor, formalities of law to that effect having been complied with, the dismissal of such opposition on an exception of no cause of action, is appealable.
    A direct suit is unnecessary to prevent the confirmation of an applicant for letters testamentary. An opposition there! o, is a proper and efficient proceeding.
    Such opposition by the Public Administrator, avering that such applicant cannot discharge the duties of the trust, is expressly authorized by law.
    Such opposition implies a vacancy, owing to the inability or incompetency of the applicant.
    An applicant, in duress, under a prosecution for the murder of the testatrix, is not in a condition of body and mind to discharge the functions of the office, in the manner in which the law expects an executor to do so.
    An opposition setting forth such fact discloses a cause of action. On proof thereof, the ■ Public Administrator should he appointed to take charge of the estate, where the deceased has left no surviving spouse or heir, present or represented, claiming to assume the duties of the office.
    APPEAL from the Civil District Court for the Parish of Orleans. J.

      Breaux <& Hall for the Public Administrator, Appellant.

      A. J. Murphy, L. Adams and A. J). Hewriqu.es for Troisville Sykes, Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Fenner, J.

The Public Administrator caused the succession of deceased to he opened and made application in due form of law for administration thereof. Subsequently, Troisville Sykes presented a will naming him as testamentary executor and prayed for recognition and confirmation as such. To this application the Public Administrator filed an opposition, asserting grounds of disqualification of Sykes, reiterating his own claim to be appointed dative executor, and ending with the prayer that Sykes’ application be rejected and that he be appointed dative executor. Sykes filed, to this opposition, exceptions founded purely in law, amongst which was one of no cause of action. After trial of these exceptions judgment was rendered maintaining the same and ordering that the opposition be dismissed, from which judgment the present appeal is taken.

The motion to dismiss is based on the following grounds :

1. That the transcript filed is not such as required by law because it it does not purport to contain all the proceedings had and evidence adduced in the succession. The certificate is complete to the effect that the transcript contains everything affecting the issue between Sykes and the Public Administrator upon which the judgment was rendered. This is sufficient. Other matters would have been surplus-age. Not even a suggestion is made of any diminution of the record affecting this issue.

2. It is urged that no appeal lies because the judgment is only interlocutory and not final, and inflicted no irreparable injury on appellant.

The issue, as heretofore shown, involved not only the right of Sykes to receive letters testamentary, but the right of the Public Administrator to be appointed dative executor. The judgment absolutely dismissed his petition and decided that it disclosed no cause of action. As to the Public Administrator, the judgment was final, and it is elementary that appeal lies from a judgment appointing or refusing to appoint a dative executor. C. C. 1120; C. P. 580, 1059.

The motion to dismiss is, therefore, denied.

On the Meeits.

Bermudez, C. J.

The Public Administrator appeals from a judgment rejecting the opposition which he filed to the confirmation of an applicant for letters of testamentary executorship.

That opposition charges that the petitioner, Troisville Sykes, is confined without benefit of bail in the parish prison in this city, upon commitment of legal proper authority, under the charge of having murdered Kate Townsend, the testatrix; that by reason of said charge and commitment, said Sykes cannot discharge the duties of said execu-torship ; that there is no surviving husband or heir of the deceased, present or represented in the State to assume, or who claims the right to assume, the duties of said office; that in such a case the law directs the appointment of the Public Administrator.

The applicant excepted to tlxe opposition on four grounds:

1. That the question raised thereby can be inquired into in a direct action only.

2. That the opponent has no standing in court, as he is neither an heir, a legatee, nor a creditor.

3. That the Public Administrator can be appointed only where there exists a vacancy and that he has no right to create one.

4. That his opposition discloses no cause of action.

I.

An opposition to the confirmation of the applicant, before the action by the court, was the proper, because the only efficient, remedy. If not filed, the confirmation would have followed and then a suit to rescind and remove would have been indispensable.

II.

The opposition is authorized by law, under the averment that the applicant ocmnot discharge the duties of executor. This feature distinguishes this case from that of Burnside, in which such an allegation had not been made. 34 A. 728.

III.

No doubt the Public Administrator cannot be appointed, unless there exists a vacancy. His proceeding assumes that a vacancy exists, in as much as the appointed party cannot and does not fill the trust. Hence the necessity arises of having some one in charge of the estate.

IY.

The fourth and last question presented is: whether the averments of the opposition being taken as true, for the purpose of the exception of no cause of action, the appellant could or not discharge the functions of executor.

The law provides: (Act 74, p. Ill, of 1877.)

In all testate successions in the parish of Orleans, where, from any cause, the executor cannot discharge the duties of his office, the judge shall appoint the Public Administrator of the parish dative testamentary executor.”

The appointment of an executor is a mandate, which begins when all others terminate, that is, at the death of the constituent. It is attached to the person of the agent and is not transferable, unless the testator or the law has formally permitted a substitution.

Laurent says r that it enters into the spirit of the law, that the testamentary executor shall fulfill, himself, the friendly office which was confided to him. Friendship and confidence cannot be transmitted by the channel of a power of attorney * * * The rights and functions are intransmissible. Laurent, yol. 14, p. 358, No. 331-348; Grenier, No. 329; Toullier, No. 596; Dalloz, ch. 8, see. 1, No. 2; Colmar, 8 Nov. 1821; Com. D'elisle, 486; Rogeon, C. N. 1025; 4 A. 571.

It is true that section 1471, R. S., which is the re-enactment of the Act of 1847, now article 1154, R. C. C., allows an executor to leave his general and special power of attorney, in his official capacity, to some person residing in the parish where the succession is opened, or in an adjoining parish, to represent him in all the acts of his administration, but this it permits to be done, solely where the executor wishes only to be absent for a time. 9 A. 354; 10 A. 96.

There can be no doubt, however, that a succession representative may legally appoint a sub-agent for some special purpose to assist him in the discharge of his functions, 16 A. 256 ; provided, he be, himself? in a personal condition to supervise. Seréy, vol. 29, p. 351; Gelis vs. Maille.

In the present instance the law is positive, that, in all testate successions, where, for cvny oevuse, the executor cannot discharge the duties of his office, the court shall appoint the Public Administrator.

It is very broad, but however comprehensive, it can only mean, for any good and sufficient cause, which must be a matter for special consideration and determination, in each case, as presented.

The fact is that, Sykes was in jail charged with a heinous offense, the murder of the testatrix, awaiting a trial during which his life was to be in jeopardy. Pie ivas in duress, deprived of his liberty, necessarily laboring under great mental anguish and moral perturbation, averse to business matters, unable to act in person, or move about to watch over the interests entrusted to him, or to supervise the doings of special mandataries, if any; in a word, incajiable of discharging the general functions expected, by law, from an executor.

Under the exceptional and shocking features of this contention, the solution of which can serve as a precedent only in strictly analogous cases, rarely to occur, we tliink that the district court erred in sustaining the exceptions.

It is, therefore, ordered and decreed that the judgment appealed from he reversed and that the exceptions filed to the application of the Public Administrator he overruled. It is further ordered and decreed that this case he remanded to the lower court for trial to he proceeded with according to law, the costs in both courts to he paid hy Sykes individually.

Rehearing refused.