author: Insnnv, J.

text:
    Succession of Antoine Hebrard.
    The purchaser of property, at a judicial salo of property belonging to a succession, is not bound to , look further back than the order of the Court ordering the sale. If the order is made by a Court of competent jurisdiction, tho purchaser is not responsible for the proceedings which preceded the order of sale.
    He is not bound to inquire whether the Court was mistaken in tho faots, upon which tho order of sale is basod.
    APPEAL from the Second District Court of New Orleans,

      Thomas, J. C. Dufowr, for executor.

      A. Pilot, for appellant.

    — Antoine Hebrard died in the city of New Orleans, in the year 1860. Among the property inventoried is a lot of ground with the buildings thereon, situated in Common street, valued at the sum of §11,000. The succession was opened, and on the 25th day of January, 1862, a petition was presented by the executor for the sale of said property, in order to pay the then existing debts, on the following terms and conditions, agreed upon by all parties interested, viz : “For the slaves, cash; for the real property, one-third cash, balance for notes at six and twelve months, secured by mortgage, with six per cent, interest from date.”
    At the foot of the petition, all the heirs, together with the attorney for the absent heirs, and the executor, have affixed their signature, approving said terms and conditions.
    In April, 1862, the property was adjudicated for § ——, but the currency then offered in payment of the cash due having been refused, the adjudication was annulled by common consent.
    Three years elapsed, during which time no sale took place on account of the unsettled state of the country, the houses were rented, and payments and advances were made by the- first executor before settling the estate.
    After an absence from the country, the second executor named in the will came back, qualified, and on the 28th day of June, 1865, without regard to the previous proceedings had in the matter, nor to the terms and conditions agreed upon between the heirs and his predecessor, presented a petition for the sale of the property in order “ to liquidate the succession and divide it among the heirs,” and pray that said sale be made for cash.
    The sale took place, and the property was adjudicated for $7,400.
    The executor presented a tableau of distribution, and at the same time the purchaser issued a monition for the confirmation of the sale.
    Bichard A. Hebrard, one of the heirs, opposed both the tableau of distribution and the monition, and the two oppositions were tried together. One of the grounds of opposition to the tableau was maintained, I may say, with the consent of the executor ; the others were abandoned; so that the only opposition now before the Court is the opposition to tho monition, and consequently to the distribution of the proceeds of the sale.
    The whole question turns upon the informality and illegality in granting the second order of sale.
    The defects complained of result from the following facts :
    1. The terms and conditions of sale were agreed upon by all parties, and confirmed by the Judge. ’
    2. The order to sell in conformity with said terms and conditions, was, and remained in existence until quashed by the Court.
    No step was ever taken to that effect, and the second executor took upon himself to ignore the previous proceedings of his predecessor in relation to the. sale.
    3. There was so few debts to pay that nothing authorized, and still less necessitated, a sale for cash.
    The tableau shows an amount of debts of $1,700. On that sum tho executor abandons his commission of $300, leaving a balance due of $1,400. The attorney’s fee of $750, more than half the amount of debts, can hardly have remained entirely unpaid up to this day. It maybe supposed that since the opening of the succession, which happened four years ago, he must have received a portion of his fee, thereby diminishing the amount due this day. At all events, the amount to be paid in cash, under the terms agreed upon in the first petition, would have been more than sufficient to cover the amount of debts shown by tho tableau.
    It was not therefore to enable the executor to pay the debts due that the property was sold for cash ; and the division among the heirs could as easily have been made with notes, according to the agreement entered into between them and the executor.

      4. The terms and conditions agreed upon and adopted by the Court, could not have been changed without cause being shown to that effect, and therefore without notice to the heirs and to the attorney for absent heirs.
    The seoond order is entirely ex parte. There is no doubt that the new Judge of the Second District Court had no knowledge of the former proceedings in this case, when he signed the second order of sale upon terms different from those ordered by his predecessor ; but the Court, in its judgment, considers that the reasons for selling being the same, there was no necessity to show cause for a change of the terms of sale.
    I think it can be made to appear that the reasons were evidently different.
    The debts to be paid, when the first order of sale was applied for, were much larger than at the second sale, as appears from the numerous payments made by the first executor, as per his account of administration.
    The petition filed in 1862, says : “ That for the purpose of paying the debts and expenses of this succession, and meeting the heavy taxation imposed upon property generally, and finally liquidating this estate, it becomes necessary and indispensable to sell the property as described in the inventory. Wherefore, he tenders the consent of the heirs and all parties in interest, and p.iays that the sale be made, etc. Terms and conditions, one-third cash, balance for notes at six and twelve months, secured by mortgage, with six per cent, interest from date.”
    The petition filed in 1865, merely says : “ That in order to proceed forthwith to the liquidation of this succession, it is necessary that the only real property thereof, situated in Common street, and fully described in the inventory,- be sold for cash; wherefore petitioner prays for an order,” etc.
    The liquidation of a succession, in order to divide it among the heirs, cannot be assimilated to the .payment of debts. The fact is that the word “debts” is not mentioned in the petition, and could not be mentioned as a reason to sell the property for cash. The same reasons did not therefore exist, and it so appears on the very face of the proceedings. If it was not necessary in 1862, to require the payment in cash of the whole proceeds of sale to pay all the debts then due, a fortiori, no such stringent measure was necessary to pay the small amount of debts due. We say, then, if there was no reason to change the terms of sale, could it be done ex parte, without cause alleged or shown by the executor, or without notico to the heirs, and attorney for absent heirs, to show cause why the first order should not be superceded by the second one.
    It is maintained on the part of the opponent, that the first order of sale being in existence, the second one was illegal, as far, at least, as the heirs and executor are concerned. Laying aside, for a moment, the interest of the purchaser in the question, it cannot be denied that between the heirs and the executor, whose predecessor had filed of record the terms and conditions agreed upon among the parties interested,, said terms could not be changed without the necessity to do so, be shown, or their consent obtained to do' it.
    The duties and powers of testamentary executors are defined as follows by our Civil Code :
    Article 1661 : “In default of funds sufficient to discharge the debts and legacies, the executor shall cause himself to be authorized to sell, etc. etc., to an amount sufficient to satisfy those debts and legacies.”
    Article 1662 : “ Except in the cases provided for in the preceding article, he cannot cause the immovables to be sold, unless authorized by the will to do so.”
    Article 1663 : “The executor shall proceed to the sale and payment, etc. etc., in the same manner as is prescribed for curators of vacant successions. ”
    The duties of the curators are as follows :
    Article 1157 : “ This petition (for sale) of the curator must be notified to the attorney for the absent heirs; shall order the sale of such part, etc. etc., as may appear to him necessary to discharge the debts,” etc.
    In the matter of the Succession of Bowles, 3 K. 36, the Supreme Court has established the following principles, which are the natural deduction of the articles above quoted, after speaking of the several notices to be given to the heirs and to the attorney for the absent heirs, the Court says:
    “We think very strong reasons exist why the forced heir, at least, should be notified of an application to sell the succession in which he is interested. Article 1661 of the Code only authorizes the sale in default of funds to pay debts and legacies, and a certain order is prescribed, etc. The heir should be notified of a deficiency of funds to pay the debts, etc. Other reasons might be given why the heir should be informed of those acts of the executor, which materially affect the property, etc. It seems that the parties were aware in this case of the necessity to give notice, etc. The error appears to be fatal.”
    Great stress was laid (in the Court below) on the fact that the opponent hag already received his almost entire share in his grandfather’s succession, and that he comes with bad grace as an opponent to the tableau. The tableau shows that the other heirs have also received a portion of their share. The difference is merely in the amount received, and constitutes no legal ground to dismiss opponent’s demand; and if it proves anything, it is that the opponent was the poorest of the family, and can, less than any other, submit to a useless sacrifice of his interest. I say useless sacrifice, because the sale for cash was not necessary to pay a sum not exceeding $1,400, and because the sale being made immediately after the surrender of the Confederate armies, at a moment when the state of the country was quite unsettled, when one-half, at least, of our population had not yet begun to recover from their heavy losses and fearful embarrassments, it was a notorious fact-that property was then sold at a great sacrifice. Adding to the difficulties of the' times the necessity of paying the whole price cash, was certainly not the means of procuring an advantageous sale of the property.
    But the opponent does not merely show that his interest has been sacrificed, he shows further, that it was sacrificed in ' violation of his legal rights, and that he is entitled to a remedy.
    If it cannot be denied that, as between the heirs and the exeoutor, tho solemn agreement entered into could not be altered or violated without notioe to the parties thereto, the next question is, how does the illegality shown by the proceedings affect the rights of the purchaser ?
    We are met at the threshold with. the dictum of the Supreme Court, that a purchaser at a judicial sale need not look beyond the order of Court. We do not deny the strength of the argument intrinsically, but we deny its sweeping effect in the case of a monition. It appears to us reasonable and equitable to say that, when a purchaser calls upon all parties interested to show if any informality, or any other defect exists in the proceedings under which the property was sold, he cannot afterwards say, when the illegality is shown, that he need not look beyond the order of Court. He has opened the door to the opposition, and cannot refuse to discuss its merits.
    It would seem, indeed, from the position assumed by the purchaser, that the mere issuing of a monition cures all defects in the proceedings conducive to the order of sale. .If he does not wish to go beyond that order, let him be satisfied with his title, but if he, himself, goes beyond, calls upon the heirs to show any defect whatsoever in the order under which the sale was made, his monition becomes subject to exceptions which, perhaps, the party interested would otherwise be precluded from asserting as plaintiff in an action to annul tho sale. It is a case analogous in principle to the rule : qnoe temporolia sunt ad agendum perpetua sunt ad exoipiendum. Prescription certainly extinguishes many claims after the time fixed by law, yet those very claims may be pleaded in compensation by the defendant; and though a direct action to annul a contract be prescribed, its nullity may be pleaded by the party against whom it is sought tó be enforced, at any time, by way of exception. 2 L. E. 386; 12 E. 198.
    Now comes this question : Do the terms and spirit of the statute of 1834 support the opponent’s petition ? '
    The second section (E. S. 340) states .that the monition must call “upon all persons who can set up any right to the property, in consequence of informality in the order, decree or judgment, under which the sale was made, etc. etc., or for any other defect whatsoever, to show cause why the sale should not be confirmed.”
    The 7th section says: “The judgment confirming the sale shall have the force of res judicata against all persons who may hereafter claim the property sold in consequence of any illegality or informality in the proceedings, whether before or after judgment,” etc.
    In this case the opponent has responded to the call of the purchaser, and the law protecting his interest gives him the privilege of asserting Ms rights in consequence of any defect whatsoever, either before or after judgment, which terms could not have been inserted in .the section if the parties called upon had not the right to plead in opposition to the confirmation of the sale, all informalities, illegalities or defects in the proceedings, of whatsoever nature, either before or after the order of sale. A different construction would amount to a complete abrogation of the statute. Whether the defect be a sufficient ground to annul the sale is a matter to be decided by the Court, but it must be examined and inquired into.
    The alleged defect in this case is not en dehors of the proceedings; it is precisely one intended to be inquired into under the statute; it is an informality, or an illegality; it is a defect in the very order under which the property was sold; and if so considered by the Court, the monition must be dismissed and the sale annulled.
    The attorney for the purchaser has quoted the cases of 1 La. 436, and 15 La. 182, in support of the position assumed by him, that the purchaser need not look beyond the order of sale. These cases date from 1830 and 1831, when there was no statute of monition, and cannot, therefore, be invoked to dismiss pleas made in conformity with the statute of 1834.
    In the case of Valderes v. Bird, 10 R. 398, quoted by the defendant, the Court makes the following remarks : “It is now settled that when there is a formal decree, recognizing the necessity of selling the property for the payment of debts, and giving an opportunity to the attorney of the absent heirs to show that no such necessity existed, the purchasar is not bound to look beyond the decree.”
    What then is the consequence, if no such opportunity has been given ?
    Tho Court refers to the prescriptions of Article 1157, which we have quoted ourselves, requiring notice to the attorney for the absent heirs, so that the authorities of defendant, himself, support our assertion that the terms of sale could not be changed without notifying said attorney, and giving him an opportunity lo show that no such necessity existed. The decree, therefore, was informal, no such notice having been given.
    The case of Garter v. McManus, 15 A. 676, relied upon by the defendants, was a direct action in nullity, and not an opposition to monition. Besides, there was no attorney for absent heirs, and nothing required a compliance with the terms of Article 1157.
    We, therefore, say in conclusion :
    1. That the order of sale of June 28th, 1865, for cash, was informal and illegal, by reason of pre-existing order on the terms and conditions agreed upon.
    2. That the second order .of sale could not be legally issued, changing the terms and conditions, without showing that the existing debts required such an amount of cash, and without notice to the parties to the agreement entered into, including the attorney for the absent heirs, requiring them to show cause why the. terms should not be changed, and why the whole amount should not be paid in cash.
    3. That the defect in the mortuoria proceedings of the late Antoine Hebrard, being one of those covered by the statute of 1834, the same may be opposed to the confirmation of the monition prayed for in this case.
    Opponent, therefore, prays that the judgment appealed from bo reversed, the promulgation of the monition refused, the .sale annulled, and the executor ordered to proceed in conformity with the terms agreed upon in the petition of January 25th, 1862, praying for an order of salo.

      J. Magne, for appellee.-

    — -The only question'presented here is, whether the probate sale made to us by the Sheriff, is valid.
    Certain property was sold under an order of the Second District Court, and purchased by Samuels, the appellee; the monition published by him was opposed by the appellant, on the ground that the order of Court on which the sale was made was improperly issued. The judgment of the District Court dismissed the opposition, and the opponent appealed. The executor will show that the proceedings anterior to the order, on which the sale was made, are regular. But were it otherwise, the sale should still be declared valid as to us, the purchaser in good faith.
    The Court will bear in mind that the pretended irregularities, urged by the opponent, were anterior to the order of sale; and it is well settled that “the purchaser at a sale, under the order of a Probate Court, which is a judicial sale, is not bound to look beyond the decree recognizing its necessity. He must look to the jurisdiction of the Court; but the truth of the record, concerning matters within its jurisdiction, cannot be disputed. 2 Hennen’s Digest (new edition), p. 1494, No. 5, and authorities quoted there.”
    In Lalanne’s Heirs v. Moreau, 13 La. 436, the Court, after having noticed some points peculiar to the ease, said: “ But we place our decision on the broad ground, that sales directed or authorized by Courts of probates are judicial sales, to all legal intents and purposes. It was so decided by this Court in the case already alluded to (Michel’s Heirs, 11 La. 156), and the principle is recognized in that of Pintará v. Deyris, 3 Martin N. S. 22. Article 114, p. 366, of the old Civil Code also seems to recognize it, and it is a textual provision of the Louisiana Code, included in Article 1863 :
    “The necessity and wisdom of such a rule of property has long been felt and acknowledged in the most important States of this Union, and none is better settled by the decisions of their Courts. They all maintain that a purchaser, under a decree of the Orphan’s Court, is bound to look to the jurisdiction, but that the truth of the record, concerning matters within that jurisdiction, cannot be disputed. See the case of Thompson v. Tolmie, 2 Peters, 166, in which the Supreme Court of the United States said, in conclusion :
    “ If purchasers were responsible for the mistakes-of the Court, in point of fact, after they had adjudicated upon the facts, and acted upon them, such sales would be snares for honest men.”
    In Ball’s Administratrix v. Ball el al. 15 La. 182, the Court, after haying noticed the irregularities urged in that case, and stated that they would not affect the purchasers, added :
    “ The holders of this property would successfully appeal to the decisions of this Court, in which it has been adjudged that purchasers at a sale made under the decree of a Court, of competent jurisdiction, are not to inquire into, or be responsible for, the proceedings which preceded the decree, and are not bound to look behind the decree itself and authorities quoted there.
    In McCullough v. Minor, Executor, 2 An. 466, 467, the Court said: “The purchaser in this case was not bound to look beyond the decree. The jurisdiction of the Court was undoubted, and the jurisprudence of this State has long since been settled, that a bona fide purchaser at a judicial sale is protected by the decree and authorities quoted there. And this principle has been oyer and oyer again recognized. See 11 La. 149, 156. 10 Rob. 398. 16 La. 440. 3 Rob. 122. 15 An. 250.
    This is also the jurisprudence admitted in the Courts of the United States.
    In Thompson v. Tolmie, 2 Pet. 168, quoted as aboye by our Supreme Court, the Court added :
    “The purchaser is not bound to look further back than the order of the Court. He is not to see whether the Court was mistaken in the facts of debts and childrenand the Court went on to say that such was also the jurisprudence in the State of Massachusetts, where it was held that a title under a sale by administration, by virtue of a license from the Court of Common Pleas, was good against the heirs of the intestate, although the license vras granted upon a certificate of the Judge of Probates, not authorized by the circumstances of the case. The Court said: ‘ ‘The license was granted by a Court haying jurisdiction of the subject. If that jurisdiction was unprovidently exercised, or in a manner not warranted by the evidence in the Probate Court, yet, it is not to be corrected at the expense of the purchaser, who had the right to rely upon the order of the Court as an authority emanating from a competent jurisdiction.”
    And the same principle was affirmed in Voorhses y. The Bank of the D\

      S. 10 Pet. R. 445. • 1 Wallace United States Supreme Court Reports, p. 634.
    In this case the jurisdiction oí the Court was unquestionable, and is not contested; and we were not bound to look behind the deoree 'ordering the sale. Had the appellant believed that the order of sale was improperly issued, he could have opposed it and attempted to prevent the sale; but, after having tacitly consented to it, he cannot change his mind and question the validity of the sale, to the detriment of an innocent purchaser.
    We trust, therefore, that the judgment a quo will be affirmed, and the sale homologated — all the costs to be paid by the opponent and appellant.
   Insnnv, J.

Bernard Samuels, the purchaser at a judicial sale of property belonging to the succession of Antoine Hebrard, seeks to have the sale to Mm of a certain lot of ground homologated by means of a monition, which is opposed by R. A. Hebrard, one of the heirs of Antoine Hebrard, who, also, opposes the tableau filed in Court by the testamentary executor, so far as it regards the distribution of the price of the lot, paid by the said purchaser into his hands.

The grounds of opposition are :

1. That the order of sale of June 28th, 1865, for cash, was informal and illegal, by reason of the pre-existing order of sale on the terms and conditions agreed upon.

2. That the second order of sale could not be legally issued, changing the terms and conditions without showing that the existing debts required such an amount of cash, and without notice to the parties to the agreement entered into, including the attorney for the absent heirs, requiring them to show cause why the terms should not be changed, and why the whole amount should not be paid in cash.

3. That the defects in the mortuaria proceedings of the late Antoine Hebrard, being one of those covered by the statute of 1884, the • same may be opposed to the confirmation of the monition prayed for in this case.

The purchaser’s main reliance is on the recognition, as applicable to this ease, of the principle, that a purchaser need only look to the jurisdiction of the Court, but the truth of the record concerning matters within its jurisdiction cannot be questioned. He relies on the following authorities :

In Lallanne’s Executor v. Moreau, 13 La. 436, the Court say : ‘We place our decision on the broad ground, that sales direoted or authorized by Courts of probates, are judicial sales to all legal intents and purposes. It was so decided by this Court in Michel’s Heirs, 11 La. 156, and the principle is recognized in that of Pintar v. Deyres, 3 Martin N. S. 22. Art. 114, p. 366, of the old Civil Code, also seems to recognize it, and it is a textual provision of the Louisiana Code, included in Article 1863.” The necessity and wisdom of such a rule of property, has long been felt and acknowledged in the most important States of the Union, and none is better settled in the decision of their Courts. They all maintain that a purchaser under a decree of the Orphan’s Court, is bound to look to the jurisdiction, but that the truth of the record concerning the matters within that jurisdiction cannot be disputed. See the case of Thompson v. Tolmie, 2 Peters 166, in which the Supreme Court said, in conclusion: “If purchasers were responsible for the mistakes of the Court, in point of fact, after they had adjudged upon the facts and acted upon them, such sales would be snares for honest men.”

In Ball’s Administrator v. Ball et al., 15 La. p. 182, the Court, after observing that the purchasers would not be affected by irregularities in that case, say : “The holders of this property would successfully appeal to the decisions of the Court in which it has been adjudged,’’ that purchasers at a sale, made under the decree of a Court of competent jurisdiction, are not to enquire into and be responsible for the proceedings which preceded the decree, and are not bound to look behind the decree itself. See the authorities quoted there.

In McCulloch v. Minor, 2 An. pp. 466, 467, the Court said : “ The purchaser in this case was not bound to look beyond the decree. The jurisdiction of the Court was undoubted, and the jurisprudence of this State has long since been settled that a bona fide purchaser, at a judicial sale, is protected by the decree. And this principle has been repeatedly recognized. See 11 La. 149, 156; 10 Sob. 398; 16 La. 440; 3 Rob. 122, and 15 A. 250.

In the case of Thompson v. Tolmie, 2 Peters, 168, before quoted, tho Court added : “ The purchaser is not bound to look further back than the order of the Court. He is not to see whether the Court was mistaken in the facts of debts and okildren;” and the Court went on to say that such was also the jurisprudence in the State of Massachusetts, where it was held that a title under a sale of administration by virtue of a license from the Court of Common Pleas, was good against the heirs of the intestate, although the license was granted upon, a certificate of the Judge of probates, not authorized by the circumstances of the ease. The Court said: “The license was granted by a Court having jurisdiction of the subject. If that jurisdiction was improvidently exercised, or in a manner not warranted by the evidence in the Probate Court, yet it is not to be corrected at the expense of the purchaser, who had a right to rely upon the order of the Court, as an authority emanating from a competent jurisdiction, and the same principle was affirmed in Voorhies v. The Bank of the United States, 10 Peters, p. 445; 1 Wallace United States Supreme Court Reports, p. 634.

This is certainly the general rule, and the counsel for the opponent Bays : “We do not deny the strength of the argument intrinsically, but we deny its sweeping effect in the case of a monition; and it is contended that the Act of 1834 justifies the opponent in resisting the homologation of the sale for any defect whatever, ■ either before or after the judgment.”

He says that the eases cited by the purchaser, to screen him from any defects previous to the rendition of the decree or order of sale, date from 1830 and 1831, when there was no statute of monition, and that the principle therein recognized cannot be invoked to dismiss pleas made in conformity with the statute of 1834.

The doctrine contended for by the purchaser is one now of fixed jurisprudence daily and uniformly put into practical operation. 2 An. 468, 14 An. 154. How far it may be applicable in monition suits is not well settled; but, it would seem to be the fixed determination of the Courts, as we gather from our own jurisprudence, and that of other States of the Union, as well as that of the Supreme Court of the United States, to protect the innocent purchaser of property at judicial sales ; and the case must be a strong one against the purchaser, in whatever form the question is presented, to disturb him for defects in the proceedings, previous to the rendition of the decree, under whioh the sale to him is made.

Is there anything in the mortuoria to estop the opponent from contesting one very important fact — that a sale of the lot of ground was of indispensable necessity to pay the debts and charges of the succession ? If there be, and it had a tendency to induce third persons to believe in the existence of this fact, can he who thus vouched for the truth of it be heard to gainsay it ? Most assuredly not. The opponent subscribes, in the most unqualified manner, to the declaration of the executor, “ that for the purpose of paying debts and expenses of this succession, and meeting the heavy taxation upon property, generally and finally liquida, ting the estate, it becomes necessary and indispensable to sell the property as described in the inventory,” in which is included this lot of ground.

This admission of the indispensable necessity for a sale of this property, is made by all the heirs, and the attorney of the absent heirs, and if this was an essential prerequisite to the order for a sale, it could not have been more formally observed ; but were there not, in reality, debts still due by the succession ? The first executor received $4,781 05, and distributed among the heirs $4,643 86, having extinguished of the debts (amounting to some $1,795 39) only $137 19, and leaving due thereon $1,658 20, to be paid out of the prooeeds of the lot. ' The terms of sale were changed by the order for a sale of the 28th June, from credit instalments to cash ; and it is contended that the want of notice of this change to the heirs and attorney of absent heirs, rendered null and void the order of sale, and the sale made under it. The testamentary executor is authorized by law to cause to be sold the property of the succession, to pay the debts and legacies (1661 C. C.); and, in proceeding to the sale of such property, it should be done in the same manner as is prescribed for the curators of vacant successions. 1663 C. C. Notice must be given to the attorneg for absent heirs (1157 C. C.); and the Judge, after having heard him, shall order the sale of all or such part of the real estate, -which belongs to the succession, as may appear to him necessary, in order to discharge the debts, (See Articles 1155, 1156, 1157, 1661 and 1663 of the Civil Code.)

So far as regards the requisitions of these articles in relation to the notification of the executor’s petition for a sale to the attorney of absent heirs, it has been complied with, and he and the heirs present have admitted, judicially, the necessity for such a sale. This was the sole object of the law in making the attorney for absent heirs a party to an application for a sale, in order to ascertain, contradictorily with him, if such a sale was necessary.

It was so, in effect, declared in Valderas v. Bird, 10 Rob. 898. The Court therein said :

, “ It is now settled that when there is a formal decree, recognizing the necessity of selling the property for the payment of debts, and giving an opportunity to the attorney of absent heirs to show that no such necessity existed, the purchaser is not bound to look beyond the decree.”

The last order of 28th June, 1865, for a sale, was merely supplementary to the first order, and produced no change in it, except as to the terms, substituting for credit installments of six and twelve months, with interest, a cash price — a modification within the competence of the Court, on the application of the executor, advised as it was by previous proceedings, that a sale was necessary, and aware that the delay for the credit installments, originally specified in the first order, had, long previous to the date of the second order, passed by, and taking into consideration that, in the peculiar state of things then existing, that the change was an advantageous one. Orders for- sales in succession matters are not final judgments, and, as such, unalterable ; but may be, and frequently are, modified by the Judge, in the exercise of a sound legal discretion, and for sufficient reasons. See 540 C. P. Elders v. Rogers, 11 An. 606. Thompson v. Mylner, 9 An. 211. Slark v. Burk, 9 An. 345; which are similar in principle.

The ease of the Succession of Bowles, referred to by the appellee, differs materiaEy from this one. The authorities cited below are, we think, more apposite to the case at bar : Articles 1661, 1663, 1156, 1157, 1042, 1051, and 1055 C. C. Succession of McLean, 12 An. 223. Succession of Gurney, 14 An. 622; and Carter v. McManus, 15 An. 677.

No objection on account of irregularity or iEegaEty.in the order of sale was made at or previous to the sale ; and for the reasons hereinbefore given by us, and those upon which the District .Judge dismissed the oppositions of Richard A. Hebrard, the judgment, with an amendment to it, must be affirmed. By the act of the Legislature, entitled “An act for the further assurance of titles to purchasers at judicial sales, ” approved 10th March, 1834, section 5th, it is made the duty of the Judge, in case no cause is shown against the prayer of the monition, to homologate and confirm the judicial sale, provided the applicant has, to the satisfaction of the Judge, complied with the requisitions of the law in relation to advertisements, description of property, etc., which he has done.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court, which only dismisses the opposition of R. A. Hebrard to the homologation of the judicial sale of the lot of ground belonging to the succession of Antoine Hebrard and adjudicated to Bernard Samuels, on the 31st July, 1865, be amended, and that the said judicial sale be, and the same is hereby homologated and confirmed ; and that so amended, that the said judgment be affirmed, at the costs of opponent and appellant.


source: Caselaw Access Project

author: ÜSLEY, J.

license: Public Domain

text:
    Ambrose Lanfear v. Louis Mestier.
    In an action to annul a judgment, it must appear that the party seeking to annul tho judgment hás conformed to those essential requirements which equity oxaefcs from suitors who invoke its aid. He must have used all reasonable diligenoe, and not neglected to uso suoh means as he possessed, to prevent tho evil of which ho complains.
    The military order of General Shepley, Military Governor of Louisiana, requiring tho Judges of other Oourts in the Parish of Orleans to hold the sessions of the Fourth and Fifth District Courts of Now Orleans, for the purpose of terminating pending cases, gave suoh Judges full power to hold those Oourts for that purpose.
    Oourts will judicially take notice, without proof, of whatever ought to be generally known within tho limits of their jurisdiction; and this Court cannot ignore an historical fact in relation to the source whence Judges of Oourts, over which it exercises appellate jurisdiction, derived their power to preside in other tribunals, at a time when the State laws were merely subsidiary to military rule.
    APPEAL from the Fifth District Court of New Orleans,

      Leaumont, J. Miles Taylor, for appellant.

    — Louis Mestier instituted a suit in tho Fifth District Court of-New Orleans, against the New Orleans, Opelousas and Great Western Railroad, and Ambrose Lanfear, on the 3d of March, 1859, in which he claimed $15,000 as damages from the defendants in solido, for certain acts therein charged. ' This suit was brought by Pierre Soulé, as the attorney of petitioner; and it was put at issue by answer filed by the respective defendants; that by Ambrose Lanfear, through his attorney, M. M. Cohen, and that of the Railroad Company, by their attorney, G. A. Breaux.
    The ease, after it was put at issue, was tried in December, 1859, before a jury, and a verdict was given against Lanfear, one of the defendants, for the sum of $10,000, and a judgment was rendered on the verdict, which was signed on the 10th of December, 1859. From this judgment Lanfear appealed, and the case was heard on appeal in the Supreme Court.
    On the appeal, Lanfear was represented by H. M. Spofford and his original counsel; and the Supreme Court, after hearing the case, gave a judgment on Monday, June 10th, 1861, in which they reversed the judgment of the lower Court, and remanded the case for a new trial.
    The judgment rendered by the Supreme Court was filed in the Fifth District Court on the 22d of June, 1861. There were no further proceedings had in the casefrom this time, until the city of New Orleans was taken possession of by the national forces, in the latter part of April, 1802. The Honorable H. B. Eggleston, who had before been the Judge of the Fifth District Court of New Orleans, withdrew at that time from the discharge of the duties of that place; and there was no Judge appointed to the Fifth District Court until the present incumbent of that office was appointed, and entered on the duties of the place in the year 1865.
    All the counsel employed in the case withdrew from the city, and were absent until after July, 1864. No regular sessions of the Fifth District Court, for the transaction of business, were holden from the time of the occupation of the city in 1862, by the Federal authority, until the reorganization of the Court in 1865. Nor was there any Judge appointed to fill the place of Judge of the Fifth District Court, during all that time.
    On the 28th of May, 1864, the Court, presided over by a Judge of one of the other District Courts of the city, met for the calling of cases, and the case of Louis Mestier v. The New Orleans, Opelousas and Great Western Railroad Oompang, and Ambrose Lanfear, was fixed for trial on the 6th of June, 1864, and there was an order made directing the Sheriff to summon a jury. No other case was then fixed for trial. No public notice was given in the newspapers of the intention of the Court to fix causes for trial in the Fifth District Court, or that this cause had been actually fixed.
    The case then stood on the docket of the Court as in charge of M. M. Cohen and G. A. Breaux, for the defendants.
    On the 6th of June, the cause was continued on to the 28th of June, 1864, and on that day it was taken up for trial by H. B. Eggleston, as counsel for the plaintiff, and tried ex parte — the defendants not being represented — and the jury then empanelled gave a verdict against Lanfear for the sum of $15,000. Judgment was rendered on this verdict on the 28th of June, and signed on the 2d of July, 1864; and as no notice of judgment was issued, or served on the defendant, Lanfear, he had no knowledge of these proceedings until an execution had been issued on the judgment, and the Sheriff demanded payment of it under the execution, subsequently to the expiration of the delay given by law, within ■which a suspensive appeal may be taken.
    The defendant, Ambrose Lanfear, then instituted his suit of nullity against this judgment, setting up all the above recited facts, and alleging that there having been no Judge appointed for the Fifth District Court, and he, petitioner, having no knowledge, information or belief, that the said cause could be proceeded in, or tried . in the Fifth District Court while the office of Judge of the Court was vacant, had employed no other attorney, or counsellor at law to represent him in the case; and that he had no knowledge, information or belief, that any proceedings had been taken in the said case after the place of Judge of the Fifth District had been vacated by the withdrawal of H. B. Eggleston, the former Judge, until on or about the 21st or 22d of July, 1864, on which day one of tho deputies of the Sheriff of tho parish of 'Orleans demanded payment of him of the sum of $15,000, with interest and costs, under the execution issued on the 28th of June, 1864, and signed on the 2d of July, 1864; and that he had been condemned unheard, ex parte, and without notice; that in the premises some improper advantage was taken of him, the manner of which was unknown to him; that it would be against good conscience to execute the judgment, and that the judgment was void, and ought to be annulled; and praying that Louis Mestier, the plaintiff in the judgment, should be cited before the Court to answer his petition; and that after legal proceedings had, the judgment should be annulled, and declared void and of no effect; and that an injunction should, in the meantime, stay all further proceedings on it.
    The injunction applied for was refused; and after various proceedings, the defendant, Lanfear, whose property was under seizure on the execution issued upon the judgment, and was advertised to be sold, paid the amount of the judgment into the hands of the Sheriff on the very morning of the day fixed for the sale of his property seized to satisfy it. But notwithstanding the refusal of an injunction to stay the proceedings under the judgment, the defendant, Lanfear, still prosecuted his action of nullity against it, and the case was put at issue by the defendant in the action of nullity, Louis Mestier filing his answer, in which he pleads the general issue. Subsequently to the filing of this answer, the plaintiff in the action of nullity, who had paid the amount of the judgment, filed a supplemental petition, in which he set up that fact, and further prayed that there should be a judgment in his favor against Mestier, for the amount which he had been illegally compelled to pay; and the defendant, Mestier, filed his amended and supplemental answer, in which he alleges that the aotion of nullity had been abandoned by the voluntary execution of the judgment attacked for nullity, in making payment to the Sheriff under the execution.
    The case was tried upon these issues, and all the facts set up by the plaintiff, as grounds of nullity with respect to the judgments, were established by the evidence adduced.

      It also appeared by the evidence, that the plaintiff in the action of nullity, had actually paid the judgment obtained against him in June, 1864, by Mestier, and which is the subject of this action of nullity, after his property had been advertised for sale, and on the very day when the sale would have taken place, as alleged by the plaintiff, Lanfear, in his supplemental petition.
    This payment, so made by Lanfear, is set up by the defendant, Mestier, and is made by him the foundation of a plea on his part, that the payment was a voluntary execution of the judgment attacked, and that the making of it amounted to an abandonment of the action of nullity. It is impossible for the plaintiff in the action, to conceive upon what principle such a plea is based, unless it be upon the assumption of the defendant, Mestier, that the plaintiff, Lanfear, after having had an illegal judgment improperly obtained against him, ex parte, could have no right to contest it unless he permitted him, Mestier, to take his, Lanfear’s, property in payment of the amount specified in the judgment, at two-thirds of its appraised value. As the plaintiff does not apprehend that the recognition of any such principle, by any Court, is possible, he will leave this plea without further remark, and will present the points and authorities on the merits of the case for consideration :
    1. The right to the action of nullity is given in Articles 604, 605, 606, 607, of the Code of Practice. But the causes on which the action may be founded, are not all enumerated in the Articles of the Code; and it has been repeatedly held by our Courts that the action can be maintained in other cases, besides those there enumerated. Chinny. The First Municipality, 1 R. R. 523; Norris y. Fristoe, 3 A. 646; Musson y. Richardson, 11 R. R. 37.
    2. There is no provision of law for the transaction of business in a District Court of New Orleans, when there is no Judge of that Court.
    The cases in which, under the law, a Judge can act and exerciso the judicial functions in a different Court from that to which he was appointed, are those in which the Judge of the Court, whose functions are to be supplied, has been recused; has recused himself, is incapacitated from holding it by reason of illness, or has leave of absenco. Acts of 1855, p. 495, H 4, 13, 15. When there is no Judge of a Court, there is no Court, and the judicial functions cannot bo exercised.
    This is illustrated by what takes place in England, with respect to the action of the high Court of Chancery. Where there is a Chancellor, he is permitted to call in any Judge he pleases, to try cases in chancery, and he calls in frequently, in fact, Judges from the Courts of the King’s Bench, Common Pleas and from the Court of Exchequer. But when there is a vacancy in the Court, and there is no Chancellor, no business can be done in it. There is then no Judge of the Court; and in the presence of such a fact, the other Judges cannot act, because there is no Judge to be replaced. See Campbell’s Lives of the Chancellors. Third. Ignorance of fact excuses. 1 Story’s Equity Jurisprudence, 110, 116, note 2.
    The object of all laws, with reference to the prosecution and defence of actions in Courts of justice, is to have justice done between the parties, after a fair trial, had on due notice. Both parties are equal before the law, and it is the design of the lawmaker to place litigants in Courts on an equal footing.
    No advantage is to be given to one over another; and when an unjust advantage is obtained by one party over another, as in this case, it is the duty of the Court to apply a remedy, and deprive the party of that advantage.
    In the present case Lanfear, the plaintiff, was ignorant of the following facts :
    1. That business could be done in the Fifth District Court, when there was no Judge appointed to fill the office of Judge of the Court.
    It is true, it is said that there was an order of the military Governor of the State, authorizing the Judge of other Courts to act in this. No such order has been placed in evidence, nor have I ever seen one, though I have enquired diligently, with a view to ascertain whether it did or did not exist. But if such an order had been made, it is a fact of which Lanfear was ignorant, and in the absence of any proof, bringing home knowledge of it to him, personally, it is, so far as to the questions involved in this case, as though none such had ever been made. For though all men are necessarily presumed to know the laws of a country, no one can presume to have knowledge of any fact which constitutes an exception to the law. To affect the plaintiff, Lanfear, not only must such an order be shown, but the knowledge of its existence must be brought home to him by positive proof.
    2. That there was any intention on the part of the plaintiff in the suit, Mestier, to proceed in it.
    Nothing had been done in it since June, 1861. The counsel of all the parties had been absent from the city since the spring of 1862, and had not returned. No public notice was given through the newspapers of the fixing of eases. No notice of any kind was given to Lanfear, personally, and the case was tried ex parte.
    And in consequence of all this, great mischief has been done to the defendant in that suit, Ambrose Lanfear, the plaintiff in this action of nullity.
    1. He was deprived of the opportunity of objecting to improper evidence ; of offering evidence in his own behalf; and of contesting the points involved in the ease by arguments addressed to the jury.
    2. The effect of this, to the injury of the defendant in the judgment, Lanfear, is shown by the fact that the jury gave a verdict against him for $15,000, when a previous one for $10,000 had been set aside by the Supreme Court, because it was excessive.
    3. The defendant was deprived of all opportunity to obtain a suspensive appeal, because in consequence of tbe proceedings being carried on in the manner and under tbe circumstances shown by tbe proof, be bad no notice of them whatever, actual or constructive, until tbe demand made upon him by tbe sheriff for tbe payment of tbe judgment, under tbe authority of tbe execution issued on it, after tbe delay given for taking a suspensive appeal bad expired.
    If, as it is abundantly shown by aE tbe evidence before tbe Court, tbe petitioner Ambrose Lanfear “was condemned unheard, ex parto, and without notice, and that some improper advantage was taken of him,” etc., then tbe judgment ought to be annuEed, and a judgment should be given against Mestier for tbe amount improperly and unjustly received by him under this nuE and void judgment.

      Eggleston & Howe, for appellee.

    — This is a suit of nullity. Tbe defendant, Louis Mestier, in June, 1864, recovered in tbe Fifth District Court of New Orleans, a judgment against Ambrose Lanfear, in a suit which bad been long pending, for tbe sum of f15,000.
    The case bad been regularly caEed and fixed for trial, and duly posted on tbe buEetin board of tbe Court. It was tried beforo a jury, tbe defendant Lanfear not appearing at tbe trial, either personaEy or by attorney of record.
    No motion was made for a new trial, nor was any appeal taken, either suspensive or devolutive.
    An execution having been issued against tbe property of Lanfear, be caused to be prepared tbe petition in tbe case at bar, which purports to be a petition in a suit of nullity, and applied successively to Judges Thomas and Leaumont for an injunction, which was refused.
    Tbe petition, it wiE be observed, is entitled in tbe Fifth District Court of New Orleans, and verified- 1864.
    Tbe injunction being denied, Mr. Lanfear then procured from Major-General Banks, ex parte, a stay of proceedings, by order dated August, 1864.
    Mr. Mestier then applied to Major-General Hurlbut, the successor of Banks, to set this stay aside, and General Hurlbut so modified the order as to stay proceedings until tbe determination of tbe suit of nullity, which Lanfear aEeged he bad commenced, namely, tbe present suit.
    By tbe same order, Mr. Lanfear was directed to pay tbe amount of tbe judgment into tbe bands of tbe sheriff, which be did.
    In December, 1864, finding that tbe suit of nuEity was not being prosecuted, and therefore likely never to be determined, Mr. Mestier never having even been cited, General Hurlbut revoked bis stay, and remitted tbe parties to their rights at law. Order dated-186 —.
    An alias fi. fa. was then issued in tbe suit of Mestier v. Lanfear, and the sheriff was requested to seize and pay over to Mestier the $15,000 which had been deposited. The sheriff declining to take this course, a rule was taken to compel him; and at the same time Mr. Lanfear took a rule in the present case (the suit of nullity), for an injunction against the judgment and execution.
    Both rules came on for trial before Judge Fellowes, sitting as Judge of the Fifth District Court, and both were discharged on the-day of January, 1865; a third Judge of our District Courts thus declaring that the petition in this suit of nullity exhibited no cause of action.
    In the meantime, under the alias fi. fa. upon the judgment sought to be annulled, real estate of Lanfear had been seized and was about to be sold, when, on the-day of January, Mr. Lanfear paid the amount of the judgment to the sheriff.
    The present suit of nullity then proceeded to trial before Judge Leaumont, of the Fifth District Court, and judgment was given in favor of Mr. Mestier, from which. Mr. Lanfear has appealed.
    It has thus been judicially declared four successive times, by three different judges, that, under the pleadings and proof, the plaintiff in this action of nullity cannot recover.
    To his recovery we oppose the following points :
    1. The judgment by default, in case of Mestier v. Lanfear, being regularly taken, cannot be attacked by a suit of nullity. The remedy of the defendant therein was an appeal. Seymour v. Cooley, 9 La. 79. McKnighi V. McConnell, 14 A. 396.
    2. The right of Mr, Lanfear to invoke an equitable consideration of his ease has been taken away by his own neglect. Equity is not an amiably weak contrivance for repairing the carelessness of suitors. It is a system firm though flexible, and abhors laches.
    And therefore, the Supreme Court of Louisiana have said, in regard to a plaintiff in an action of nullity, who had himself been neglectful: “If, by reasonable diligence, he could have known such a matter, or if he have been guilty of laches, he cannot be relieved.” Norris v. Fustoe, 3 A. 646. Swain v. Sampson, 6 A. 799.
    And, where one personally cited allowed a default to be made final against him, without interposing any plea or applying for further time to answer, or for a continuance, or suggesting an inability, at the proper time, to make a defence, it was held that he could not enjoin and annul the judgment, and that Art. 607 C. P. does not apply to such eases. McRae v. Purvis, 12 A. 85.
    And in another case, where there was no fraud on plaintiff’s part, and the defendant had been guilty of laches, it was held that the defendant could not sustain an action of nullity, but that his remedy, if any, was by appeal. Knight v. McConnell, 14 A. 396.
    To permit an action of nullity in such cases, said the Court, in McRae v. Purvis, would be a premium for. neglect.

      3. So far as the point made in the petition, that the Fifth District Court was without power to give the judgment in Mesiier v. Lanfear, it is evident that, by taking this ground, Mr. Lanfear exposes himself to a dilemma, on one horn or the other of which he is likely to be impaled.
    For if the Fifth District Court had power, in June, 1864, to give the judgment, then there is nothing in the objection.
    If it had no power to give the judgment, in June, 1864, it had no more, in August, 1864, to grant the injunction prayed for in the present suit, or to send out a citation, or to give a judgment of nullity.
    In brief, if Mr. Lanfear’s petition, in this respect, be tenable, he presents the curious spectacle of a suitor asking a Court to give a judgment because it has no power to give one.
    4. Lanfear voluntarily executed the judgment by paying it, and thereby renounced all objections and exceptions to the legality of the proceedings. C. P. 567. 2'L. R. 265. 4 Rob. 128. 5 An. 598.
    The judgment was rendered during the June term of the Court, upon the verdict of a jury regularly summoned, and after the case had been regularly called, fixed and placed on the manifest of the Court, according to the rule of Court recited on the record. If Lanfear was not there to defend himself, he can only impute his absence to his own negligence. He was in Court by process and his answer, and he should have watched the calling and fixing of causes. The absence of his counsel was no cause to delay the suit, for he might have engaged others. 13 L. R. 532.
    The injunction was refused by two judges, because his petition disclosed no cause of nullity.
    It is somewhat of an absurd inconsistency for Lanfear to deny the competency of the Judge who held the Fifth District Court, tried the cause and rendered the judgment, and then to apply to the same Judge, and sue to annul the judgment which the Judge was disqualified to give. A more daring solecism in jurisprudence was never enunciated. If he had any rights left, it was by an appeal; but this he lost by paying the judgment.
    Lanfear’s own conduct proves that he had no confidence in his effort to annul the judgment by suit. He obtained a military injunction from Banks, stopping the sale, and waited months before he had the petition served on Mestier. An appeal to the army to decide a civil suit in Court was never known until the advent of Butler, Banks and Hurlbut, in this city. When he invoked the aid of military power, it showed that he had no confidence of success by an appeal to the Courts. Lanfear has failed in showing any fraud, forgeries, ill practice, or equities of any kind, except the esquitas cerebrosa of the visionary, which will justify the annulment of the judgment of the Fifth District Court,
    The appellee asks for its affirmance.
   ÜSLEY, J.

This is an action to annul a' judgment rendered by the Fifth District Court of New Orleans, in the month of June, 1864, in the suit then therein pending of “Louis Mestier v. The New Orleans and Opelousas Railroad Company and Ambrose Lanfear,” by which said judgment, Louis Mestier recovered from Ambrose Lanfear the sum of fifteen thousand dollars.

This last-mentioned suit had been previously before this Court on appeal, and had been remanded to tho . District Court for a new trial, the defendant Lanfear having been, by the first judgment, condemned to pay the plaintiff Mestier ten thousand dollars.

The principal ground of nullity now in this suit set up by Lanfear is, that the suit remanded was tried ex parte in the District Court, by an incompetent Judge; that he had no notice of the trial thereof, and was not represented by counsel thereat.

The defence against this action is a general denial and tho special averment that the judgment sought to be annulled is valid in all respects,’ and that the defendant, Lanfear, has renounced all objections and defences to the same, if any ever existed, by his own conduct and acts. By an amended answer, Mestier alleged that, since the filing of his original answer, Lanfear has paid the judgment which he now 3eeks to set aside, and can no longer proceed against the same, the objections to it having been renounced by the voluntary execution and payment thereof.

Lanfear admits the payment of the judgment to Mestier, but says it was enforced against him, and that he paid it under execution issued thereon.

The main ground of nullity is tho legal incapacity of the Judge of the Third District Court to preside and try cases in the Fifth District Court, so long as the Court has no regular incumbent Judge.

If this incompetence is established by Lanfear, Article 612 of the Code of Practice entitles him to have the judgment objected to, pronounced a nullity — non est major defectus quam defectus potestatis — but, if in this he is unsuccessful, all the other grounds relied on by him must prove unavailable.

The evidence does not enable us to say, with any degree of certainty, whether, at the trial of the case of Mestier v. Lanfear, in the Fifth District Court, the judgeship therein was vacant. It merely establishes the fact that no Judge was appointed for that Court, after the capture of the city, until the appointment of Judge Leaumont; but, taking this for granted, was the Judge of the Third District Court empowered by any law of the State to try and decide cases in the Fifth District Court ? We can find nothing in the Act of the Legislature of the 23d February, I860, which purports to amend the act entitled “ An act relative to District Courts, approved March 15thi 1865,” so confidently relied on by Mestier’a counsel, to enable a neighboring Judge to try cases in another Court, wherein the judgeship is vacant.

The clause relied on, in the Act of 1860, reads thus :

“ Whenever any District Judge shall be absent from his district, or shall recuse himself or be recused, or shall be unable to act by reason of sickness, or any other cause whatever, or whenever the office shall become vacant by reason of death, resignation or otherwise, the Judge of the neighboring district shall have the power, and it shall be his duty, to grant all orders which might be granted by the Judge of the district.”

This evidently refers to the orders which, by the article amended, a Judge was required to grant in chambers, and such orders as are mentioned in the 32d section of the Act amended by the Act of 1860.

By the Act of 1855, No. 255, page 316, which refers exclusively to the Courts of New Orleans, provision was made for supplying temporarily, in case of recusation of the Judge of any District Court, a Judge from one of the other Courts to preside in place of the Judge recused ; but there is nothing in that act that authorizes judges of other Courts to preside in one wherein the judgeship is vacant, by reason of death, resignation, or otherwise. It does not, however, necessarily follow that, because the Judge of the Third District Court did not derive his authority to try a case in the Fifth District Court from the State laws, that he was acting without authority in presiding thereat in that Court.

At the time of the rendition of the judgment sought to be annulled, the city of New Orleans was under the complete dominion and absolute control of the Federal military authorities. The government established by them recognized no law but such as met its unqualified sanction and approval. It not only prescribed the rule of conduct for the inhabitants of the conquered city, but established a judiciary, appointed judges, whose judicial functions were exercised under its supervision. Lanfear, the plaintiff, fully realized this state of things, for, in the very proceeding of which he now complains, he invoked, and successfully too, the aid of the military. It was from this military government that the Judge of the Third District Court derived his authority to exercise in the Fifth District Court the same functions as the Judge of that Court might have exercised.

The defendant offered in evidence, but did not produce, the order of General Shepley, military governor, requiring the judges to hold the sessions of the Fourth and Fifth District Courts, and to terminate pending cases.

Having judicial knowledge that such an order was issued and acted upon, can-this Court notice it without proof ? Courts will judicially take notice, without proof, of whatever ought to be generally known within the limits of their jurisdiction; and this Court cannot ignore an historical fact in relation to the source whence Judges of Courts, over which it exercises appellate jurisdiction, derived their power to preside in other tribunals, at a time when the State laws were merely subsidiary to military rule.

But it is urged by Lanfear that he had no notice of the trial; that his counsel of record in the suit were absent from the State when the, trial took place; that he was not represented thereat, and that some unfair advantage was taken of him.

In the case of Swain v. Sampson, 6 An. 800, this Court said : “ We held, in Trisloe v. Norris, 3 An. 646, that, to annul a judgment, a case must be exhibited of matter which would make it against good conscience to execute the judgment; matter of which the injured party could not have availed himself in the former litigation, or of which he was prevented by fraud or accident from availing himself. The matter must also be such as the party, by the use of reasonable diligence, could not have known ; for, if there have been laches or negligence, that destroys the title to relief. ” Story’s Equity Jurisprudence, g 887. Story’s Equity Pleadings, g 414. Garlick v. Reece, 8 L. R. 101. McMecken v. Millaudon, 2 L. R.180. Winn v. Womack, 15 An. 273.

Whatever hardship might result to Lanfear from the judgment complained of, he must, to be relieved from it, have conformed to those essential requirements, which equity itself exacts from suitors who invoke its aid; he must have used reasonable diligence, and not have been guilty of laches or negligence. Has he used every reasonable diligence, and not neglected to use such means as he possessed to prevent the evil of which he is complaining ?

He was well acquainted with the nature of the suit pending against him, and all the facts and circumstances thereof, for it had been already tried contradictorily with him in the District Court and in this Court, on appeal, and he had succeeded in reversing the judgment rendered against him in favor of Mestier for a large amount, and having the case remanded to the lower Court to be tried de novo.

He must have been aware of the absence of - his counsel from the city, and that the Court in which his suit was pending was open for the transaction of judicial business, and that Mestier had the legal right to have his case' tried, whether he was present thereat, personally, or by counsel or not; and yet, residing in the city and being on the spot, he takes no steps whatever to engage the services of other counsel, or to take part in the trial of the case. Locket v. Toby, 10 An. 714; Shields v. Lanna, 10 An. 193; Dwight v. Richard, 4 An. 210; and authorities therein cited; 9 Rob. 177; 13 La. 454.

Such laches on his part precludes him from the equitable interference of the Courts; for as was well said in McRae v. Purvis, 12 An. 85, to permit an action of nullity in such a case, would be a premium for neglect.”

, The unsettled and disastrous state of public affairs then prevailing in the city, instead of lulling him into security, should have aroused his vigilance in the protection of his interests, which he should not have suffered to be jeoparded by his own negligence. Apart from the fact, that the trial took place without his active participation therein, we can perceive neither fraud nor other ill practice, of which, indeed, there is no specific averment, to cancel the judgment; and the presumption of the law is that the proceedings were regular. “Omnia praasumuntur rite et solemniter esse acta donee probetur in contrarium.”

The rules of proceeding in our Courts contemplate a fair, legal investigation contradictorily between parties to suits of all issues therein raised; but, wherever they are properly in Court, tho law exacts from them vigilant attention to every progressive step in a suit; and this for the very palpable reasons, that neglect of one suitor cannot be allowed to tho prejudice of another.

Sharp practice our Courts will not tolerate; but they will not confound this with an active legal prosecution, unopposed, of the remedies which the law affords, indiscriminately, to all suitors.

If the plaintiff is injured by the judgment complained of, the blame cannot be attributable to his opponent; and he ean hardly expect that even a Court of equity can take better care of him than he has chosen in the matter he opposes to take of himself.

The judgment of nullity in this suit, rendered by the District Court in favor of the defendant, Mestier, must be affirmed.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be and the same is hereby affirmed, the costs of appeal to be paid by the appellant.


author: Hyman, C. J.

text:
    F. Wagner v. Thomas B. Newman et al.
    Godo of Praotico, Artiolo 401, Authorizes a third opponent possessed of a privilege to proceed against the plaintiff and Sheriff, without requiring that tho opponent should first obtain judgment against tho defendant, and without requiring the defendant to be made a party to the opposition-
    APPEAL from the Sixth District Court of New Orleans,

      Duplantier, J. J. Magne, for appellee.

    — Tho plaintiff, by virtue of a judgment, caused tho movable effects of the defendant to be seized and sold by the sheriff. Tho amount of tho sale was $470 25. Foucher, the landlord and third opponent, took a rule agreeably to Articlo 401 C. P., to be paid by preference as privilege creditor. At the request of the plaintiff, and of the Court, tho defendant was made a party.
    The claim of the third opponent, for rent, was proved to be $510 ; and it was also proved that the property seized and sold under the plaintiff’s fi. fa. was in the house rented by defendant from the third opponent. The District Judge made the rule absolute, for $510, less $70 90, to bo retained by the sheriff for costs, and the plaintiff has appealed.

      Our right to proceed by rule, under Article 401 C. P. is so well established that we do not deem it necessary to argue it. O. O. 2675, 3184,3185. H. M. Robinson v. John F. Staples, 5 An. 712; 12 An. 339. Garretson v. Eis Creditors, 1 Rob. 445. Hoey v. Hews, 3 An. 704.
    Should it be said that we took a provisional seizure in the Second District Oourt, the answer is that it was done ex necessitate, in order to tie the proceeds of the sale into the sheriff’s hands, at a time when there was no Judge in the Sixth District Court; and that utile per inutile non vitiatur.
    And should it be objected that we did not obtain a judgment on our suit in the Second District Court, the answer is that it was not necessary under Article 401 C. P. Besides, the defendant having been made a party to the rule in the Sixth District ■ Court, at the request of plaintiff, the judgment á quo was rendered contradictorily with both plaintiff and defendant ; and again, this case has not any analogy with an attachment suit, where the plaintiff has no privilege, and obtains only a preference by the judgment.
    We trust, therefore, that the judgment of the District Court will be affirmed, with costs.

      E. Eiesiand, Holland <S¡ Bear, for appellant.

    — This is an appeal from a judgment rendered by the Sixth District Court on a rule taken by Louis P. Poucher, de Circe, on the plaintiff and the sheriff, to show cause why so much of the proceeds of the property sold by the sheriff, under a fi. fa. issued by plaintiff in this case, should not be paid to him, on the ground that he had the lessor’s privilege thereon, and was entitled to be paid by preference, etc.
    To the foregoing rule plaintiff excepted, because :
    1. Plaintiff in a rule had not obtained a judgment against defendant.
    2. The defendant had not been made a party thereto.
    3. That' any judgment that might be rendered on said rule would be a judgment against defendant, although he was no party to it.
    4. No judgment can be rendered against defendant unless he be a party to the rule.
    These exceptions the lower Court overruled.
    On the trial of the rule, the plaintiff filed the following peremptory exceptions, viz :
    That L. P. Poucher, plaintiff in rule,, could not appear and prosecute the same, because he was not a loyal citizen of the United States, and had not renewed his allegiance thereto in the manner and form prescribed by the laws of the United States and the proclamation of the President of the United States.
    These exceptions were overruled, and judgment was rendered in favor of the third opponent, Foucher, for the full amount of his claim, less certain costs.
    From this judgment plaintiff has appealed.
    The facts, as shown by the record, are :
    That plaintiff Wagner caused the movable property, on the premises occupied by defendant, on Levee street, to be seized and sold by the sheriff, on an execution issued in this case. That on the day previous to the sale by the sheriff, Foucher applied to the Second District Court and obtained a writ of provisional seizure against defendant; that the writ was received by the sheriff; that the sheriff did not make a seizure, and only executed the writ of provisional seizure by putting the same with the balance of the papers in the suit of Wagner & Newman, etc.
    That Foucher did not prosecute his suit in the Second District Court and obtain judgment against Newman, and that up to this day that suit is still pending.
    That on the trial of the rule, the defendant Newman was not present or represented; no default had been taken against him, no issue joined; that Newman left New Orleans in the fall of 1863, for Matamoros, Mexico, and had not returned. There is no evidence that he had any agent here.
    We therefore contend that the proceedings, under the rule taken by Foucher, are irregular and not in compliance with law. That the Court erred in overruling the exceptions filed by Wagner, as to the status of Foucher.
    2. That Foucher was bound to establish his loyalty before he could stand in the courts of the United States or of this State; and, failing so to do, it was the duty of the Court to sustain the exceptions and dismiss his proceedings.
    3. That Foucher not having obtained a judgment against Newman in the Second District Court, could not intervene in this case, and through a rule obtain judgment against Newman, unless contradictorily with him.
    A There is no evidence showing that the property sold under Wagner's execution is the identical property upon which Foucher pretends he has the lessor’s privilege. On the contrary, the evidence of Werzburger and DeArmas shows that the sheriff did not seize this property under Foucher’s writ, nor put a keeper over it, nor did he make an inventory of the property under the provisional seizure, nor take possession of the same under that writ; but that he merely executed that writ, as Werzburger says in his evidence, by putting this writ with the balance of the papers in the suit of Wagner & Newman, etc.
    We contend that Foucher, having failed to prove the identity of the property seized with that on which he claims lessor’s privilege, the judgment of the Court is erroneous, and we are entitled to the funds in the hands of the sheriff, arising from the sale under our execution. Privileges being stricti juris, must, as against third persons, be conclusively established. Rockford v. Geragkty, 10 An. 429.
    We therefore respectfully ask that the judgment of the Court á quo on said rule be reversed and set aside, and that the Sheriff of the Parish of Orleans be directed to pay over to us the funds in his hands arising from the sale made by him under our execution, as far as the same may go towards satisfying our judgment against Newman; and that the said Louis 3?. Foucher, de Circe, be condemned to pay all costs.
   Hyman, C. J.

Plaintiff, a judgment creditor of defendant, caused, under a writ of fieri facias, to be seized the movable property belonging to defendant in a certain house in the city of New Orleans, which was sold by the Sheriff.

Opponent, L. F. Foucher, de Circé, had leased this house to defendant. He caused this movable property to be seized under a writ of provisional seizure, and by motion made opposition and claimed the proceeds of the sale of the same, on the ground that he had a privilege as lessor on the property seized, which entitled him to be paid out of the proceeds in preference to plaintiff.

The Judge rendered judgment, decreeing that opponent be paid the proceeds of the property sold, the proceeds not being sufficient to satisfy his claim as lessor. Plaintiff appealed from this judgment.

Plaintiff in the lower Court excepted to the opposition, and asked that it be dismissed, because defendant had not been made a party to the opposition, and because no judgment had been obtained by opponent against defendant.

Defendant was made a party to the opposition, but had he not been made a party, the answer to the exception would have been, that the law authorizes this mode of proceeding against plaintiff and Sheriff, without requiring that opponent should first obtain judgment against defendant, and without requiring him to be made a party. See Code Practice, Art. 401; 14 An. 89.

I^Plaintiff further excepted to opponent’s opposition, because he was not a loyal citizen. It is not shown wherein he was disloyal.

It is not pretended that opponent had not a privilege on the movable property of defendant, which was in the house let, to secure the payment of his claim as lessor; but plaintiff contends that it is not proven that the property sold under his execution was the same on which plaintiff had a privilege.

It was proven that the movable property of defendant, which plaintiff caused to be seized and sold, was in the house let, and on this property opponent claimed his privilege.

It is decreed that the judgment of the District Court be affirmed, and that plaintiff pay the costs of this appeal.


author: Hyman, O. J.

text:
    Succession of Maria Moore.
    Summary proceedings are only to be used wlien prescribed by law. Code Practioo, Artiole 764.
    No provision of law authorizes the administrator of a succession to recover property by rule or summary prooess. His remedy is by ordinary process.
    APPEAL from the Second District Court of New Orleans,

      Thomas, J. D. Augustin, for appellant. J. Ad. Rosier, for appellee.
    John Sims, in his capacity of administrator of the succession of Maira Moore, deceased, took a rule on Charles Ross, requiring him to show cause why he should not deliver to him certain articles of movable property, alleged to belong to the succession of Maria Moore, of the alleged value of $4,398, which it was claimed Ross held in his possession, and refused to deliver to the administrator. Ross, by his counsel, excepted to the form of proceeding, and claimed that the administrator had no authority to proceed against him by rule or summary proceeding. Upon the hearing of the rule, the Court overruled the exception, and rendered judgment against Ross for $100. The administrator, dissatisfied with the judgment, appealed.
   Hyman, O. J.

A rule was taken by the administrator of the succession of Maria Moore, deceased, on Charles Ross, for him to show cause why oertain movable property in his possession, claimed as belonging to said succession, should not be delivered by him to the administrator.

Ross, by exception, objected to this mode of proceeding. His exception was overruled, and judgment was rendered against him.

From the judgment the administrator appealed.

Summary proceedings are only to be used when prescribed by law. Code Practice, Art. 754.

No provision of law authorizes the administrator of a succession to recover property by summary process. His remedy is by ordinary process. See 8 An. 11.

It is decreed that the judgment of the District Court be reversed, that the exception be sustained, and that the rule be discharged. The succession to pay costs.


author: Ilsley, J. Mr. Justice Labatjve

text:
    C. Connell v. The Female Orphan Asylum and Dr. G. W. Campbell.
    On a Rehearing.
    The Civil Code provides that the lessor, and not the' lessee (unless there bo a stipulation to the contrary), must bear all the real charges with which the thing leased is burdenod. He must pay taxes, rents and other duos imposed on the thing leased.
    APPEAL from tho Sixth District Court of New Orleans,

      Howell, J. J. McConnell, for plaintiff and appellant. C. Roselius and M. M. Cohen, for appellee. Bonford, Singleton & Clack, for Campbell.
   Ilsley, J.

Upon a review of this case, which was argued ex parte at the first hearing, our views of the interpretation which should be given to the singular contract between the Female Orphan Asylum and Dr. G. W. Campbell, have been modified.

Although the numerous French authorities, cited in our former opinion, appear to justify the conclusion that Dr. Campbell might be considered a usufructuary, and therefore bound for the taxes, etc.; still, when we examine more critically the numerous expressions of the parties, indicating their intention to constitute a lease, the high price paid for a restricted use of the lots of ground, as compared with their value in full property, the absence of any inventory appraisement or stipulation with reference to security (and which were not dispensed with by the act), and the specific limitation of fifty years as tho term of enjoyment, whilst usufruct with us is usually a life estate, we think it the safest course to let the obligations of the parties, respecting taxes, rest upon their own theory of the nature of their contract, as stated in the authentic act.

Our Code provides that the lessor and not the lessee, unless there he a stipulation to the contrary, must bear all the real charges with which the thing leased is burdened.

Thus, he has to pay taxes, rents and other dues imposed on the thing leas.ed. Article 2672.

It has been argued with learning and ingenuity, that this contract is, in truth, the ancient emphyteusis, or bail emphytéotique. In Miller et al. Syndics, v. Michaud et al. 11 Rob. 229, the Court spoke of the emphyteusis as being “unknown to our laws.”

Whether it be so or not, the parties'before us had no knowledge of that peculiar contract, and therefore did not intend to create it. And we do not think they have done so undesignedly and accidentally.

The tendency of our jurisprudence has always been towards the simplification of contracts and titles.

This Court would be reluctant to revive a subtile species of contract in relation to real estate, which gave rise to wide differences of opinion while it was in vogue, and, after undergoing many transformations, has at last fallen into desuetude.

The Orphan Asylum, in answering the plaintiff’s demand, asserted its ownership of the land, averring that Dr. Campbell owned the buildings only.

The legislative act authorizing the levy of these assessments for paving, seems to have imposed the burden upon the proprietor of the land, “ according to the running foot.” See Acts No. 164 (page 136, A. 1856), sec. 119.

It is therefore ordered, adjudged and decreed, that the judgment first pronounced by us be set aside and annulled ; and it is further ordered, adjudged and decreed, that the judgment of the lower Court be affirmed, at the costs of the appellant.

Mr. Justice Labatjve

adheres to the opinion already expressed in this case, and dissents from the opinion and judgment now rendered and pronounced by the Court.

For the reasons assigned in the opinion, on the rehearing in this case, I coincide therein and assent to the judgment.

Robt. B. Jones,

Associate Supreme Court.

For the reasons given by Judge Ilsley, I concur in the opinion on the rehearing in this case. W. B. Hyman, Chief Justice.


author: Howell, J

text:
    John G. McLearn v. Mrs. J. J. Skelton.
    A note is not void for tbo want of a revenue stamp, but is simply inadmissible as evidence.
    This Court cannot sanction an evasion of the laws of Congress.
    APPEAL from the 2d Judicial District Court, Parish Jefferson,

      Cazabai, J. Lacey, for appellee. Field & Shackleford, forjappellant.
   Howell, J

This is an appeal from an order of seizure and sale, issued upon a mortgage note, made by defendant on 2d April, I860, and secured by mortgage in favor of plaintiff.

The only ground of error which we deem it necessary to notice, is the want of the revenue stamp upon the note, as required by the Act of Congress.

The note was made prior to the passage of the law requiring notes to be stamped; but the 163d section of the Act 30th June, 1861, requires such notes to be stamped before they can be used as evidence in any Court, and authorizes parties to affix the requisite stamps in presence of the Court; This appears not to have been done in this case, and the evidence was therefore not such as the law makes valid. The note is not void for want of the stamp, but simply illegal as evidence. We cannot sanction an evasion of the laws of Congress.

It is therefore ordered that the judgment of the lower Court be reversed, and this ease dismissed, at plaintiff’s costs.


author: HoweiiIi, J.

text:
    R. Means et al. v. Hyde & Mackie.
    ’fhia óasQ presentó simply a question of fact.
    APPEAL from the Fourth District Court of New Orleans,

      Theard, J. J. Ad. Rozier, for appellees. Buchanan <& Gilmore, for appellants.
   HoweiiIi, J.

Plaintiffs allege that they are the owners of three certain lots of ground, in McDonoghville, Parish of Orleans, right bank of the Mississippi Biver, having a front on said river of about 120 feet, on which they conducted the business of blaeksmithing, the repairing and manufacturing of boilers, and speculating in wrecked and damaged vessels; and for which purposes they required the constant and uninterrupted use of their premises fronting on the river ; that the defendants, a commercial firm, own property near theirs, separated therefrom by Market street, and have built on the whole width of said street a wharf, which (since September, 1860, and up to filing this suit, April 8th, 1861) covers a portion of plaintiffs’ land and is occupied by defendants, thus obstructing and interfering with plaintiffs’ business, by which they have suffered damages to the amount of $5,000. They pray, in general terms, for the possession of their property and said amount as damages.

Defendants pleaded the general denial. Judgment was rendered against them for the possession sought and $1,500 damages, and they appealed.

It is shown that, in 1846 and 1849, plaintiffs bought three lots of ground fronting on Market street, in McDonoghville, and that, by the caving in of the bank, they eventually obtained, along the side of their property, an angular and oblique front on the river ; that, in 1860, defendants built a wharf at the end of and on Market street, for the purposes of their dry-dock business, and in the progress thereof obstructed plaintiffs’ business at times, by mooring vessels along their front; but the only instances in which actual damage is shown, the loss to plaintiffs amounted to one hundred dollars.

Several witnesses state that, at different times, defendants kept vessels moored along the front of plaintiffs’ property, and that boats could not then approach plaintiffs’ shop for repairs without moving said vessels; but they do not say that any boats made an effort and were actually prevented from doing so, except in the instances above referred to. They state, besides, that plaintiffs themselves had vessels there during some of these occasions, and they do not distinguish between them, so as to enable the Court to determine the extent of the obstructions thus caused by defendants. And in addition to this, the data as to the amount of work, busisiness or profits, of which plaintiffs are 'deprived, if any, beyond what wo have stated, are not furnished with any accuracy. The amounts mentioned by one or two witnesses are merely conjectural, and not such as to warrant an estimate for a judgment.

It is shown that the wharf erected by defendants encroaches, at one corner thereof, upon plaintiffs’ land; but it is also shown that the defendants were, at one time, about to remove that portion, when plaintiffs objected; and it is shown that the latter have been in the habit of making use of the wharf. But as they are not bound to allow this private wharf to remain permanently on their land, they have the right to have it removed,- and the possession of that portion of the land restored to them, upon giving reasonable notice, which it appears they have done.

It is therefore ordered that the judgment appealed from be amended, so as to reduce the amount of damages awarded from $1,500 to $100; and that, as thus amended, it be affirmed ; defendants to pay the costs of the lower Court, and plaintiffs those of appeal.


author: Howelh, J.

text:
    State of Louisiana, on the Relation of Eugene Staes, v. Arthur Gastinel.
    Section 130 of the Charter of Now Orleans provides that tho right of any officer of tho corporation to hold the office he fills may be tested at any time, by quo warranto, on tho relation of any citizen.
    The inquiry of the Court is not confined to the right of an officer, sought to be ousted, to enter upon an office, nor to the regularity of the means by whioh ho obtained tho office, but will tost and determine his right to fill the office which he holds.
    APPEAL from the Sixth District Court of New Orleans,

      JDuplaniier, J. Grandmont, Canonge and Field, for appellant and appellee. SouU, Chanel & Walker, for appellant and appellee.
   Howelh, J.

At the municipal election, on 12th March, 1866, of the votes cast for Recorder of the Second District of New Orleans, Arthur Gastinel, the defendant, received'784, Eugene Staes, the relator, 619, and Emile Wiltz 168, making a total of 1471. On the 19th of the same month, Gastinel was commissioned by the Governor as Recorder and Justice of the Peace ; on the next day he took the oath of office prescribed by the constitution, and, on 31st same month, Eugene Staes obtained a writ of quo warranto from the Sixth District Court of New Orleans, directed to' said Gastinel, to show cause why he should not be forbidden to perform and usurp any longer the funtions of said office, and why the relator should not be declared to have been duly elected to said office, on the grounds that the said Gastinel does not possess the qualification as to age (thirty years), prescribed by law, and that all the votes given for him at said election are illegal and null, and must be considered as not given ; consequently, the relator received the highest number of legal votes, and is the duly elected Reoorder of said District.

The respondent filed an exception to the petition, as cumulating two demands, contrary to and exclusive of each other, which was properly overruled, as it is not inconsistent with a prohibition to the incumbent for the Court to render a decree providing for filling the office legally, although it might reject relator’s pretensions.

The respondent then answered that he is no usurper of the office, but holds it, and that of justice of the peace, by virtue of his commission and oath of office.

The Court below rendered judgment against the respondent, on the first branch of the case, and on the second against the relator as of non-suit; and both parties appealed.

The respondent contends, on appeal:

1. That, under a writ of quo warranto, the only issue to be tried is, whether or not the defendant had usurped the functions of Recorder ; and, to determine this, the Court cannot go beyond an inquiry into Ms title to the office.

2. That the qualifications of the defendant could only be inquired into by a direct contestation of election, and not by a writ of quo warranto.

8. That, by the Article 133 of the Constitution of 1861, the duties, functions and qualifications of Recorders seem to have been merged in the office or character of Justice of the Peace, and are subject to no restrictions except those affixed to the eligibility of such officers.

Seotion 130 of the City Charter (Acts 1856, p. 166) enacts that “the right of any officer of the city of New Orleans, to fill the office held hy him, may be tested at any lime, by any citizen, by a writ of quo warranto, which shall be tried as summarily as possible, both in the inferior and appellate Courts.”

This clearly authorizes .the proceeding before us, and necessarily involves an inquiry into the qualifications of respondent for the office of Recorder. The law does not confine the inquiry to his right to enter upon the office or the regularity of obtaining it; but permits any citizen, by this process, at any time of his term, to test his right to fill the office wMch he holds.

It is satisfactorily shown, and, indeed, not denied, that the respondent is under the age prescribed by the 7th section of the Charter (which is still in force, and not in conflict with the constitution), and he is therefore incompetent in law to perform the functions of Recorder, although he has been elected, commissioned and sworn. These acts do not confer the legal qualification as to age, nor dispense with it. If one qualification can be dispensed with, any and all others may be, and thus fundamental and statutory enactments rendered nugatory. The effect of Article 133 of the Constitution of 1861 is simply to confer on the Recorders the additional powe)'s and functions of Justices of the Peace. They are thereby no less Recorders, but, on the contrary, their quality as Justices of the Peace is consequent and dependent upon that as Recorders.

The judgment against defendant is therefore correct.

On the second branch of the case, we cannot, however, fully concur with the lower Court.

Article 870 C. P. contemplates that, if judgment be against the respondent, the Court shall “ direct the corporation to proceed to a new appointment;” and, in the case of Reynolds v. Baldwin, 1 An. 162, this Court held the legal construction of tMs clause of said article to be, that such an order shall be made when a new appointment is necessary. Under this interpretation of said article, the District Judge was of opinion that such an order could not be made in this case, because “no other matter outside of the right or authority under which the defendant holds the office in dispute can be enquired into, and the second branch is improperly cumulated with the first. ”

In our opinion, the necessity for such an order is caused by the judgment against the defendant, which creates a vacancy; and by the 15th seeiion of the City Charter, this vacancy is to be filled by the joint action of the Boards of Aldermen and Assistant Aldermen.

We cannot adopt the theory of the relator, that the ousting of the defendant by means of this proceeding inures to his benefit.

What might have been his rights, had he contested the election of defendant in accordance with law, we are not called on to say; but we are of the opinion, that having, as a candidate, acquiesced in the result of that election, we must, in these proceedings, consider him only as a citizen before us, seeking to have the law enforced against the incumbent, who is the Recorder de facto; and, under the provisions of the 870th Article of the Code of Practice, and the 15th section of the City Charter, notify the corporation of the necessity of a new appointment.

The law does not authorize us to declare the relator, under the circumstances, to be the choice of the people. Upon his own showing, he did not receive a majority of the votes cast, and but for some action, on the part of some one authorized, the present incumbent would have continued in the performance of the duties of the office, as the duly elected Recorder of the Second District of New Orleans.

It is therefore ordered that the judgment appealed from be set aside ; and it is now ordered, adjudged and decreed, that there be judgment against the defendant, Arthur Gastinel, forbidding him to perform any longer the duties and functions of Recorder of the Second District of New Orleans, and that he pay the costs of these proceedings in the lower Court.

It is further ordered, that the city of New Orleans be notified to proceed, according to law, to elect a Recorder of said District; the costs of appeal to be paid jointly by the relator and defendant.


author: Howell, J.

text:
    City of New Orleans v. Star Mutual Insurance Company.
    APPEAL from the Second District Court of New Orleans,

      Thomas, J. L. M. Day, for appellee. E. W. Huntington, for appellant.
   Howell, J.

This case presents the same facts and points of law as arose in that of City of New Orleans v. Union Insurance Company, No. 596 of the docket of this Court, decided on the 28th May, 1866, and for the. reasons therein assigned:

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