author: Kioholls, C. J.

text:
    No. 13,060.
    Kocke, Hernandez & DePass vs. Their Creditors.
    Syllabus.
    The election of a syndic at a meeting of the creditors of an insolvent and the discharge of the insolvent, will be sustained, when the same are sought to be set aside on objections urged for the first time in an opposition to the proces verbal of the Notary filed in the District Court, when the grounds urged are that the notary received votes without proper evidence, and it is shown on the trial of the opposition that the votes so received were legal and cast in conformity to the wishes of the owners of the claims. (TPandely vs. Creditors, 9th La., 387; Gwartney vs. Creditors, 13th Ann., 189; Conant vs. Millaudon, 5th Ann., 542; 26 N. E. Rep., 667.)
    OH APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Frank Zengel for Insolvents, Appellees.

      Frank Qhretien for Dodt & Freie, Opponents, Appellants.
    Submitted on briefs April 20, 1899.
    Opinion handed down May 1, 1899.
   The opinion of the court was delivered by

Kioholls, C. J.

Kocke, Hernandez & DePass made a voluntary •surrender of their property. It was accepted by the court, and a meeting of creditors called before Zengel, notary public. The meeting was held before the. notary, who returned a proces verbal declaring that a majority in number and amount of creditors had voted in favor of •accepting the cession; of having Henry Kocke, one of the insolvents, appointed as syndic, and of discharging the insolvents. After the proces verbal had been filed in the District Court, Dodt and Freie, creditors, filed an opposition to the homologation of the proceedings.

On the trial thereof it was dismissed, and the opponents appealed. The opposition on the trial was narrowed down to a contest over the rotes cast with the majority in the meeting of creditors in the names of Charles Mansion and P. E. G. Plasworth, whose names appeared on the schedule as creditors of the insolvents.

The opposition to the vote in Mansion’s name was upon the ground that he was dead when the power of attorney and the affidavit in hia name, which appeared in the record, were made; that no legal representative had been appointed for his succession.

That proof of said claim should therefore be rejected by the court.

The opposition to the vote in the name of Plasworth was that he was not the real owner of the claim at the time of the meeting of creditors, as it had been compromised by him and he had been paid.

The vote, both upon the Mansion and the Plasworth claims, was cast by Henry Kocke, he declaring himself to be agent and attorney in fact of each of said parties, and that they were creditors for the amounts for which they had been respectively recognized on the list of creditors.

. In support of his right to so appear and vote Kocke presented, first,, a power of attorney to him, signed “C. Mansion, per H. Mansion,” to which was annexed an affidavit of H. Mansion to the fact of the indebtedness of the insolvents to Charles Mansion, and, second, a. power of attorney to him, signed by Peter E. G. Plasworth, E. C. K., to which was an affidavit signed Peter E. G. Plasworth, E. C. K., to-1 he .fact of the indebtedness of the insolvents to Plasworth.

On the trial of the opposition, Henry Mansion and Plasworth were placed upon the stand by opponent. Henry Mansion testified that he was the person who had signed the power of attorney to Kocke, and made the affidavit annexed thereto; that Charles Mansion was his brother; that he was one of his heirs; that his succession had never been opened, but the heirs had simply taken possession as such; that the insolvents were indebted to his brother, Charles Mansion, as-stated in the affidavit; that he, the witness, had charge of all the business before and at the time of his death, and still continued the management with the consent of all the heirs; that he knew, personally, of the existence of and of the amount of the debt sworn to; that his-co-heirs had not authorized him to sign for them the power of attorney before he had done so, but that after having signed the same 'he-informed them of what he had done, and they said it was all right.

Plasworth'testified to the fact of the existence of and the amount of the indebtedness of the insolvents to himself, as stated in the list of the creditors, but he declared that he had sold his claim .to F. C. Kocbe; that the written power of attorney to Henry Kocke to vote-upon that claim in his name was presented to him for signature, hut he said he had no interest in it; that he had sold the same; that his vendee could sign it, if he wanted to, that it was not his signature, hut P. E. G. Plasworth, per F. C. K.

It was admitted on the trial that “at the time it came to the question of voting on the $1,500 for which Mr. Plasworth was put on the hilan,. that F. 0. Kocke notified the notary that he had purchased that claim, and that he owned it, and that under instructions from the notary a power of attorney was executed, as offered in evidence, simply for the reason that Mr. Plasworth’s name was on the hilan, and that it was done in that way to make connection with the hilan.”

The district judge, in his reasons for judgment, said that his judgment was that both claims were legally voted, and that as there was no fraud, or concealment, the votes must stand; that he did not think that on the mere technicalities urged, the proceedings should be-avoided.

That the Plasworth claim was voted by its owner. That the fact that he chose to appear as the agent of his vendor, and in his name, the said vendor being consulted and agreeing thereto, did not invalidate the act or the vote.

That, in the Mansion case, all the heirs being of full age after full’ information acquiesced in the act and vote of the co-heir, who was the manager of the affairs of the deceased and their own business-manager.

That he understood the jurisprudence to be that, mere irregularities, in the absence of fraud, and where all the notices had been given, and all the delays had been observed, and a proper order of court had been based thereon, would not suffice to avoid the proceedings and set aside the election.

That honest claims due by the insolvents were honestly cast and counted, and he did not think, for mere irregularity, where no one-was injured or illegally deprived of any right, he should subject the estate and its creditors to the expense and delay of another meeting.

That what had been beneficially done with substantial compliance-with the direction of the law, should stand.

Opinion.

I. Through the evidence adduced on the trial of appellants’ opposition it was established that the debts placed by the insolvents upon their hilan, as due to Charles Mansion and to Plasworth, were really owed by them, though the former claim belonged, at the time, to the heirs of Mansion, he being then dead; it was further established that the vote cast upon those claims was cast in conformity to the wishes of those parties owning the same at the time of the meeting. '

Finding, as we do, that as a matter of fact the cession of the insolvents was accepted, their discharge consented to, and the selection of Henry Kocke made by the majority of the actual creditors in number and amount, we would not be justified in setting aside the results reached at the meeting of creditors, simply because the evidence submitted to the notary as to the existence of the Mansion and Plasworth claims, and the authority of Henry Kocke to vote upon the same was such as might have justified him in refusing to receive such votes.

The controlling factor in reaching a decision in this case is under the conditions and circumstances in which the issues were raised and presented, the verity of the declarations made by the notary, not the sufficiency or insufficiency of the evidence upon which he acted.

It would be a vain and useless act to send the parties back to reach the same result which has already been reached, merely to have the evidence (which the record shows could have been produced before) placed properly before the notary. In Conant vs. Millaudon, 5 Ann., 542, the plaintiff sought to have an election of directors of a bank set aside because the commissioners of election received votes without proper evidence, but this court refused to grant this prayer, it having been subsequently shown that the votes so received were legal votes.

It said: “It is claimed that the vote should have been rejected by the commissioners, because they had not before them legal evidence (of the right of the voter to vote) and that the legality of the vote must repose solely upon the evidence offered before the judges of election.

We are not prepared to say that, for the purposes of an election, the evidence was insufficient; but, however, that may be, it is now fully established that the vote was one which the voter was legally entitled to give. It would be against reason to set aside an election effected by legal votes, because full proof of their being legal was not laid before the commissioners, and we are aware of no precedent for such a course.

The plaintiffs cite-the case of the Mohawk and Hudson Railroad Company, 19 Wendell, 135, but there the question was whether the election should be set aside because, as alleged, a vote had been improperly rejected. In determining whether the rejection was legal, the court intimates that it could not look beyond the evidence presented to the commissioners. The want of analogy between the two eases is obvious. If a party neglects to present proper evidence to the commissioners, and his vote is rejected, it is his own laches, and he has no equity in asking the court to relieve him from its consequences. But when the commissioners, on insufficient evidence, have received a legal vote, why overthrow an election when the same vote would, on proper evideuce, be received again?”

Asking ourselves the same question, we must answer it in the same manner as did our predecessors.

The case does not come before us on objections made by appellants before the notary, to the acceptance of the votes on the evidence adduced and the overruling of the same by the officer, but upon objections urged for the first time through an opposition filed after the proces verbal of the proceedings of the meeting of creditors had been returned to the court by the notary.

The time at which objections are urged frequently control not only the decision of issues, but determine the character of the issues themselves. See, on this subject, 9 La., 395; 13 Ann., 189.

We think the principles announced in Conant vs. Millaudon find proper application here.

For the reasons assigned, it is hereby ordered, adjudged and decreed, that the judgment appealed from be and the same is hereby affirmed.


source: Caselaw Access Project

author: Nioholls, C. J'.

license: Public Domain

text:
    No. 12,942.
    State ex rel. Wm. J. Tanner vs. Police Board of the City of New Orleans.
    Syllabus.
    If the action of the rolice Board of the city of New Orleans in removing a police officer from the force had been of a character such as to be an absolute nullity, the officer so rempved being still legally on the force, would have been entitled to be so recognized; and mamHamns could properly issue to the Board directing it to do so, but the action taken in this case was not null and void, and the District Court properly refused to Issue the writ.

      ON APPEAL from the Civil District Court for the Parish of Orleans. King, -T., acting for Rightor, J., absent on leave.

      William, J. Hennessey and Benjamin Rice Forman for Plaintiff, Appellant.

      Samuel L. Gilmore, City Attorney,-for Defendant, Appellee.
    Argued and submitted February 24, 1899.
    Opinion handed down April 17, 1899.
    Rehearing refused May 15, 1899.
   The opinion of the court was delivered by

Nioholls, C. J'.

William J. Tanner, a corporal in the police force ■of the city of New Orleans, applied to the Civil District Court, for the parish of Orleans, for a writ of certiorari commanding the Police Board of that city to send up to that court the record of its proceedings against him, to the end that their validity might be ascertained, praying that its sentence dismissing him from that force be decreed to be null and void, but praying in the alternative, “should certiorari be held not to be the proper remedy in the premises, that a writ of mandamus issue to said board to reinstate him as corporal of the police force, and to amend its sentence to a fine of ten days’ pay, and in the alternative, if this could not be done, then try him anew, and if found guilty of drunkenness (of which offence he denied being guilty) that the board, for the first conviction fine him only ten days’ pay, and that the writ be made peremptory commanding the police force to recognize him as corporal of the police force, and entitled to his pay, until the board should have regularly tried him and imposed a legal sentence of only ten days’ pay, if from the evidence they find him guilty of drunkenness while on duty.”

The allegations on which this remedy and relief were asked were that he had been for several years a corporal of the police force of 'New Orleans.

That on the 12th of February, 1896, the Police Board, acting in its legislative capacity, adopted resolutions (a copy of which was annexed) by which a member of the police force, convicted of drunkenness for the first time, should be fined ten days’ pay; for the second offense, twenty days’ pay, and for the third offense he should be summarily dismissed from the force.

That these resolutions had never been repealed, and were in force, and had been in force, and constituted the law regulating such cases, and the Police Board was bound thereby when acting in their judicial capacity, and the board had no power to dismiss a member of the police force for the first conviction of drunkenness.

That he was, on the 12th of November, charged with drunkenness, and that it was not charged that he was previously convicted of that or any other offense, and, as a matter of fact, he had not been previously convicted of that or any other offense as a member of the police force, and on the 22nd of June, 1898, he was tried and by a vote of three to three, the Mayor giving the casting vote against him, he was

■ convicted of drunkenness and was dismissed the force and the act of ■that tribunal was null.

Alternative writs issued.

The Police Board, for return, said:

First — That the court was without jurisdiction rations materias.

Second — That the petition disclosed no cause of action.

Third — That respondents had already acted upon and decided the matter in controversy, and the court was without jurisdiction or -authority to control or review its action in the premises.

Fourth — That it was not the legal duty of respondent to take any futher action in plaintiff’s case, and no such duty could be imposed -upon it by means of the writs of certiorari and mandamus.

Fifth — That respondent was without legal power or authority to take any further action in plaintiff’s case.

Sixth — That plaintiff having been finally dismissed from the police force, any further action in his ease by respondent would be in vain, for the reason that respondent was without power or authority to order his reinstatement on the force, all applicants for admission on the same being regulated by Section — of Act No. 95 of 1896, and Section 65 of Act No. 45 of 1896, to undergo civil service examination by the Board of Civil Service Commissioners of the City of New ■Orleans.

Seventh — That the facts stated in plaintiff’s petition were untrue in this; that respondent never did, at any time, adopt a resolution by

■ which a member of the police force, convicted of drunkenness for the ■first time, should be fined ten days’ pay; for the second time, twenty days’ pay, and for the third offense dismissed from the force; that the fact was that the resolution adopted by the said board on the 12th of February, 1896, was only to the effect that when a member of the police force, having been a regular member, shall have been convicted for the first time on the charge of drunkenness at a trial before the Board of Police Commissioners, the punishment applied should not be less than ten days’ pay; for the second offense, twenty days’ pay; for the third offense, the officer shall be summarily dismissed from the force without recourse.

The board annexed to its return a certified copy of the proceedings in the plaintiff’s case.

The resolutions referred to in the pleadings were as follows:

“Whereas, in the recent past there have been more cases of drunkenness for trial before the board than usual, and it is of the utmost necessity in order to thoroughly discipline the police force to apply a strong remedy to eradicate this evil;

“Be ü resolved> That it is necessary to deal in a summary manner with all officers convicted of drunkenness;

“Be ii further resolved, That when a member of the police force having a regular number shall have been convicted the first time on the charge of drunkenness at a trial before the Board of Police Commissioners, the punishment applied shall be not less than ten days’ pay; for the second offense, twenty days’ pay; the third offense, the officer shall be summarily dismissed from the force, without recourse.”

The record sent up shows that the plaintiff was tried and dismissed upon a charge of drunkenness and conduct unbecoming.

The Ith Section of Act No. 63 provides that each officer and member of the said police force shall hold office during good behavior, and shall be liable to removal from office after written charges shall have been preferred against him and due trial had according to the rules and regulations of said board.

The 13th Section gave power to the board, in their discretion, on conviction of any officer or member of said police force for any legal offense or neglect of duty, or‘violation of rules or disobedience of orders,, or incapacity or absence without leave, or any conduct injurious to the public welfare, or immoral conduct, or conduct unbecoming, or other breach of discipline, to punish the offender by reprimand, forfeiture, or suspension of pay for a specified time, or by dismissal from the force.

The Police Board, in the 16th Section, were empowered in their discretion, in furtherance of the police government and for promoting and perfecting the police discipline of officers and subordinates of the police force, to enact, modify and repéal, from time to time, orders, rules and regulations of general discipline wherein, in addition to such general provisions as may he deemed expedient by the hoard, there might be particularly defined, enumerated and distributed the powers and duties and liabilities of the officers, clerks and members of the police force, and wherein should he declared the mode of appointment to office, the manner of discipline and procedure of trial and removal from office of the said officers, clerks and members of said force, provided that such laws, ordinances, orders, rules and regulations, forms and modes of procedure should not conflict with any of the provisions of the said Act No. 63.

Opinion.

In Am. and Eng. Eney. of Law, Verbo Mandamus, Subdivision “Reinstatement of Member,” it is declared that mandamus will not lie to compel a corporation to reinstate a member who has been regularly tried and expelled therefrom. But where the proceedings were not in- accordance with the by-laws of the society, a writ of mandamus will lie against the officers and society to compel reinstatement of expelled members. Numerous authorities are cited in support of that proposition. (See, on this subject, 15 Ann., 73).

They have considerable hearing upon the question submitted to us in this ease, though the latter is not identical with those referred to. The issue here is one between a police officer and a State Board having authority to try and under some circumstances to remove members of the police force from office.

It is not contended that the proceedings were irregular, but that the judgment reached, and the sentence pronounced, were absolutely null and void, and not such as it was within the power and authority of the hoard to render.

Plaintiff claims that if this be true he is still, and in spite of the judgment and sentence, a member of the force, and entitled to be recognized as such, and that it is respondent’s duty to do so.

We take cognizance of and dispose of the case from that standpoint. (Windsor vs. McVeigh, 93 U. S., 274).

The record does not bear out plaintiff’s allegations.

'The judgment and sentence are not nullities.

The charge upon which plaintiff was tried and dismissed was not •■simple drunkenness, but “drunkenness and conduct unbecoming,” a ■•charge very materially different and much more serious.

Drunkenness, unattended with aggravating circumstances, might mot, in some particular case, call for a very heavy penalty, while intoxication, resulting in unbecoming conduct on the part of the drunken person, might justify the infliction upon the offending party of the heaviest punishment which the enforcement of the rules of the board would admit of and permit. But even had the charge upon which plaintiff was tried and dismissed been one of “simple drunkenness,” we find nothing in the resolutions brought to our attention which would render the board’s action illegal.

They simply fixed the minimum, penalty which might be inflicted oipon officers of the force when convicted for the first and second •times, and withdrew all discretion from the board as to the punishment which would follow from the conviction for a third offense, -fixing it definitely, in advance, at dismissal. Power to dismiss an ■officer from the force, upon a first or second conviction for drunkenness, was not withdrawn by the resolutions. It was upon the lower and not the higher limit of punishment that restrictions were provided for.

For the reasons assigned it is ordered, adjudged and decreed, that the judgment appealed from be and the same is hereby affirmed.

Monroe, I., takes no part, not having been a member of the court ■when this case was submitted.


author: Watkins, J.

text:
    No. 13,113.
    Antonio Marti vs. Mary Agnes Wall.
    Syllabus.
    It appearing from the evidence that an heir was owner of one-half interest, notwithstanding the fact that the property, when assessed, was, technically, that of the succession of an ancestor, a sale will be upheld with respect to that Interest under an .assessment against the heir, as owner of the whole.

      IN RE Antonio Marti applying for certiorari, or writ of review, to the Court of Appeals, Parish of Orleans.

      James Wilkinson and Henry J. Rhodes for Petitioner.
    Respondent judges for themselves.

      Benjamin Ory for Mary Agnes Wall, Defendant.
    Submitted March 22, 1899.
    Opinion handed down May 1, 1899.
   The opinion of the court was delivered by

Watkins, J.

In the original suit plaintiff declared upon a tax title made in pursuance of Act 80 of Í888, and prayed to be recognized as •owner, and placed in possession of the property; and, in the alternative that his demand for the property be rejected, his prayer is for the reimbursement of the purchase price, and the taxes since paid by him.

The answer of the defendant is, that she-was the owner of only an undivided interest in the succession of her mother, and that the tax •title is void, based as it is upon an assessment in the name of one not the owner; and, further, because notice of sale was not given in com.pliance with Article 210 of the Constitution of 1879.

I.

The respondents found, and so reported in their opinion, that -defendants’s mother purchased the property on May 13th, 1871, and • died on the 20th of July, 1877, possessed of title; and that her succession was duly administered by the appointment of an administrator ■ on the 26th of June, 1878.

That he subsequently died, and no successor has since been appointed; hence, the succession remains unsettled.

That at her death, plaintiff’s mother left four heirs surviving her, •one of whom was the plaintiff; and that the latter purchased the undivided interest of one of her brothers on the 6th of. July, 1878, and, also, subsequently, inherited one-third interest in the undivided interest, or share of another brother who died — thus constituting her the undivided owner of eight-twelfths of the entire estate and succession of her mother.

That, in this condition, the title of the properety has since remained, consequently an assessment of the real property in question in the name of the defendant alone was erroneous, and a tax adjudication thereof to the plaintiff thereunder a nullity.

That, in thus deciding, the respondents rested their opinion on. Martin vs. Southern Athletic Club, 48th Ann., 1051, and Succession of Lacroix vs. Lumber Company, 49th Ann., 1445.

II.

On the question of the defendant’s alternative demand for reimbursement, the respondents held the plaintiff not entitled to recover of defendant, because she is not the owner of the particular property sought to be taxed — title thereto being in the succession of the-deceased.

That any claim which may exist in favor of plaintiff for the reimbursement of the money that he has expended, may be against the-succession, but not against the plaintiff as an heir thereof.

III.

From the record it appears that the plaintiff acquired title from Joseph P. Molinoz, on August 17th, 1893; that he acquired title from James C. Galvey on June 13th, 1893, and that he acquired from the State of Louisiana, on the 25th of October, 1889, the State being therein represented by C. Harrison Parker, tax collector.

The act of sale from the State to the last named purchaser declares that the sale was made in pursuance of the authority in him vested by Act 80 of 1888, after having advertised same for sale according thereto — same being theretofore sold and adjudicated to the State for the delinquent taxes of 1887, which had been duly recorded according to law in the book of mortgages.

The description of the aforesaid property is therein given by the-municipal number of the lot, as well as by reference to the square in which same is situated, and the streets by which same is bounded; and it contains this further statement, namely: “Which said property “is more perfectly described in a certain act of sale from James-“Joseph Wall to said Mary Agnes Wall, * * * dated July 6th, 1878, etc.”

It further appears, that, on the 13th of July, 1888, in pursuance of •the provisions cf Act 96 of 1882, the State Tax Oollector adjudicated the aforesaid property to the State for the delinquent taxes of the year 1887; and that said property was advertised and sold under an assessment which was made in the name of Mary Agnes Wall.

The defendant testified in the case as a witness upon her own behalf, and we make the subjoined extracts from her testimony, viz.:

“Q. Where do you live ?

“A. No. 1835 Palmyra street.

“Q. How long have you resided there ?

“A. Over thirty years.

“Q. Between what streets is it?

“A. Roman and Derbigny.

■“Q. Is that the property sued for — on which you reside?

“A. Yes, sir.

“Q Who is Mrs. Julia Wall ?

“A. My mother.

“Q. When did she die?

“A. In 1877.

“Q. How many children did she have in all?

“A. Four.

“Q. What are their names ?

“A. Thomas J. Wall, Mary A. Wall, Patrick J. Wall, and James J. Wall.

“Q. Are any of them dead ?

“A. Yes, sir; Thomas J. Wall is dead.

* * * * *

“Q. Is James J. Wall living?

“A. Yes, sir.

“Q. Where does he reside?

“A. No. 1835 Palmyra street.

“Q. The property involved in this case?

“A. Yes, sir.

“Q. You say you have lived there how long?

“A. Some thirty odd years.

“Q. You are one of the heirs of your mother?

-“A. Yes, sir.

“Q. And James Wall, also — what is the name of the absent one?

“A. Patrick J. Wall.

* * -X- * *-

“Q. Your other brothers, except James J. Wall, have never sold their interests to you?

“A. No, sir; I only bought my brother James’ interest.

“Q. So you are not the sole owner of this property to-day ?

“A. No, sir.

* * -x * *

“Q. You say that you have two brothers living?

“A. No, sir; one brother living now.

“Q. What is his name?

“A. James J. Wall.

“Q. This is the gentleman sitting here ?

“A. Yes, sir.

“Q. All the others are dead?

“A. No, sir; I have a brother away from here, that I have not seen for twenty years; I don’t know whether he is dead or alive.

“Q. You have not heard from him for twenty years?

“A. No, sir; not for twenty years.

“Q. When did you buy out the interest of your brother, James J. Wall? * * *

“A. I do not remember exactly the date.,

“Q. About how long? Wasn’t it on July 6th, 1878?

“A. I believe it was.

“Q. That was eighteen years ago ?

“A. Yes, sir.

“Q. Now, in the last twenty years, you say you have not heard from your other brother? •

“A. No, sir.

“Q. You don’t know whether he is alive or dead?

“A. No, sir; I do not.

“Q. So far, though, as any other heir is concerned in the State of Louisiana, you stand as the owner of that property, and have owned it ever since 1878; I may say, so far as any other heir of your mother is concerned in the State of Louisiana, you have owned the property ?'

“A. Well, it was part of my mother’s succession.

“Q. You bought out the other heir ?

“A. Yes, sir; my brothér, Jim.

“Q. And no other heir has had any interest in it?

“A. No, sir.

“Q. Don’t you Tcnovj that you are the only person who is, and was'r interested in the property in 18871 Don’t you know that you have been the sole owner of that property ever since 1878, irrespective of anybody elsel

“A. Yes, sir.”

Again:

“Q. Don’t you own any other piece of property besides this ?

“A. Not that I know of.

“Q. Wasn’t there another piece of property that belonged to the succession of your mother in which you were interesiedl

“Mr. Ory objects as irrelevant.

“Q. Wasn’t there another piece of property that belonged to your mother ?

“A. Yes, sir; a double cottage on Palmyra street.

“Q. That you bought, also?

“A. Yes, sir.

“Q. At the time of his death, was he the administrator of the estate of Julia Wall?

“A. Yes, sir.”

We make the subjoined extract from the testimony of James J-Wall, viz.:

“Q. Who is Thomas J. Wall?

“A. He was my brother.

“Q. When did he die?

“A. About four years ago.

“Q. "Who was Julia Wall?

“A. My mother.

“Q. Also the mother of Thomas J. Wall?

“A. Yes, sir.

“Q. You are living with your sister in the property involved i® this controversy ?

“A. Yes, sir.

“Q. Where was Thomas J. Wall living?

“A. He lived there until he died.

“"Q. That was about four years ago?

“A. About four years ago; yes, sir.

“Q. The succession of your mother, so far as you know, has never been settled?

“A. No, sir.

“Q. Did Thomas J. Wall leave any children?

“A. No, sir; he never was married.

* * * -x- -x-

“Q. You don’t know whether your absent brother is living or not?

“A. No, sir; I have not seen him since about 1874; that is, parties have seen him, but there is no definite proof whether he is dead or alive, etc. * * *

“Q. You sold out your interest to your sister in the estate of your mother ?

“A. Yes, sir.

“Q. Your sister is the sole owner; she bought you out?

“A. Yes, sir; she bought me out.”

From the foregoing evidence we gather the following summary of facts, viz.:

That Julia Wall, mother of plaintiff, died in the city of New Orleans, possessed as owner of the property in controversy, and left surviving her four children.

That on July 6th, 1878, the defendant purchased the undivided one-fourth interest of her brother, James J. Wall, as an heir in his mother’s estate and succession — the property in question being particularly specified and described.

That James J. Wall, and his sister, the defendant, have resided upon the property since that date, continuously.

That another brother, Thomas J. Wall, also resided with his aforesaid brother and sister on said property,' until the time of his death, which occurred about four years prior to the trial of this suit; and, as he died without issue, the defendant' inherited two-thirds; that is to say, two-twelfths of the whole estate, thus constituting defendant owner of eight-twelfths of the whole estate.

That Patrick J. Wall, the other brother, was and is an absentee, whose whereabouts is aud has been unknown for about twenty-five years, and he is still vested with an undivided interest in the estate of his mother, to the extent of four-twelfths thereof.

That Thomas J. Wall qualified as administrator of his mother’s succession on the 26th of June, 1878, about one year subsequent to his mother’s death, and continued to discharge the duties thereof, up to the date of his death — the succession having been’ actually under administration for a period of near fifteen years, at the time of his death.

That the property in question was advertised, sold and adjudicated to the State on the 13th of July, 1888, in pursuance of the provisions of the current revenue law of 1882, for the alleged delinquent taxes of the year 1887; and which taxes were assessed against the property m dispute as that of the defendant, Mary Agnes Wall, individually.

On this state of facts, the question propounded by the relator’s application is, whether the judgment and decree of the respondents departed from the established jurisprudence of this court, in declaring the tax adjudication to the State was an absolute nullity.

In Martin vs. Southern Athletic Club, 48th Ann. 1051, this court said of a similar suit, in regard to a similar title, viz.:

“We have held that, ordinarily, it is not essential that property should be assessed in the name of one possessing both the legal and the equitable title in order that the assessment be legal and valid.

"Prescott vs. Payne, 44th Ann. 650.

“But there must be a prima facie title to serve as a foundation of a valid tax sale. Id.

“There must be on record some evidence to show that the original owner voluntarily parted with title, or that there were proceedings against him which apparently divested his title, such as were in evidence in the case cited, and the authorities therein referred to.

“The assesment was not in the name of the owner, as shown by the records, and was, therefore, absolutely null and void.

“No valid tax sale can be predicated upon an absolutely null and void assessment.”

The proof discloses that the assessment under which the sale complained'of was made was against the defendant as her sole and exclusive property, when, in fact, same was ostensibly the property of the succession of her mother under administration by her brother at the time; and that it remained under administration for several years thereafter, and was under administration at the time of the sale and adjudication to the State.

In point of fact, the plaintiff was heir to three-twelfths interest in the succession, and had purchased the interest of another heir of three-twelfths — thus constituting her owner of an undivided one-half interest therein.

That was thé status of the title at the date of the assessment in 1887, and at the date of sale in 1888.

At that time the defendant, and two of her brothers lived upon the-premises, and occupied the residence. A few years afterward, the-administrator died, and the defendant inherited from him two-thirds-of his succession, to-wit, two-twelfths interest in their mother’s succession.

Subsequently, the defendant and one brother continued to reside-on the premises, and the other living brother remained abroad, and his-whereabouts were unknown.

.But, plaintiff’s counsel cite and strongly rely upon our opinion in Russell vs. Lang, 50th Ann. 36, as being exactly applicable to the-instant ease.

In that case this statement occurs, namely:

“The property was assessed in the name of J. R. Russell, for the-years 1880 and 1885, inclusive, and described as one-half of square No. 85, Greenville, lots 11 to 20 — Oliver, Wall, Lowerline and Pine streets. This description was not inadequate, and the assessment in the name of Russell was the assessment in the name of one of the owners in indivisión. The assessment cannot be héld an absolute nullity. It was sufficient as to the interest of Russell in the property which was-an undivided half, and if the taxes due by his interest were not paid, that interest (an undivided half) could be legally sold under an assessment which placed the-whole property in the name of Russell. An assessment of the entire property correctly described, in his name, while error as to the whole, was not error as to his half, on the principle that the greater includes the less.”

While technically, the defendant was not the owner in her own right of one undivided half-interest in the property itself, she was practically so, to all'intents and purposes.

She had been in the undisturbed possession and use of the property, according to her own statement, for over twenty years, apparently exercising dominion and control over same as owner; and notwithstanding the succession of her mother had been under administration by her brother for a period of time equally great, same was, to all appearances, a nominal administration, merely, and had been permitted to lapse by the non-performance of the duties incumbent upon him by law.

The foregoing facts, in our opinion, bring this case strictly within-the principle announced in Russell vs. Lang, and to which opinion we adhere.

While not exactly parallel to the instant ease, the case of Hood vs. City, 49th Ann. 1461, is very similar.

On the question of the want of due notification of the sale, there is-little to be said, for while the defendant states her recollection to be, that she received no notification, the tax records and the evidence of a witness who is fambiliar therewith, support the recitals of the act of sale.

The sale should have been annulled, only with respect to one-half, and sustained as to one-half; and, in this respect, the judgment of the respondents court should be amended, so as to conform to the opinion of this court, as expressed in Russell vs. Lang, supra, and the views and opinion herein expressed.

It is therefore, ordered and decreed, that the judgment and decree of the respondents, the Court of Appeal of the parish of Orleans, in the cause entitled Antonio Marti vs. Mary Agnes Wall, be so amended as to decree the sale of the property in dispute null and void as to one undivided half interest, and good and valid as to the other undivided one-half interest; and it is further ordered and decreed that the judgment and decree of the District Court be, likewise, amended, and in all other respects affirmed.

It is finally ordered and decreed that all costs be taxed against the defendant and appellee.


author: Watiuns, J.

text:
    No. 13,091.
    Louis Sincer et als. vs. W. D. Alverson and W. D. Alverson Company, Limited.
    Syllabus.
    The provisions oí Act 159 of 1898, authorize the judges of the District Court throughout the State, and of the Civil District Court for the Parish of Orleans, to appoint receivers to take charge of the property and Business of corporations, at the instance of any stockholder, or creditor, when the directors, or other officers of the corporation are jeopardizing the rights of stockholders or creditors, by grossly mismanaging the business, or by committing acts ultra, vires, or by wasting, misusing, or misapplying the prop- ," erty or funds of the corporation.

      As that statute is the most recent and pertinent expression of legislative will upon the subject, it is necessarily controlling.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

      Lazarus & Luce for Plaintiffs and Appellants.

      ilornor & Godchaux (Geo. W. Elynn of Counsel) for Defendants ■and Appellees.
    Argued and submitted March 9, 1899.
    Opinion handed down April 3, 1899.
    Rehearing Refused May 1, 1899.
   The opinion of the court was delivered by

Watiuns, J.

This proceeding is one taken ex parte by stockholders of the defendant corporation for. the appointment of a receiver, and the judge declined to malte the appointment as proposed, but granted in lieu thereof, an order for the respondents to show cause upon a designated day, why a receiver should not be appointed.

On the day designated, the rule was tried, and on the proof administered pro and con, the judge a quo refused to make the appointment, and the plaintiffs have appealed.

The grounds upon which the plaintiffs demand the appointment of n receiver are as follows, substantially, viz.:

That they are the owners and holders of a majority of the shares of the capital stock of the corporation, as follows, viz.:

Louis Sincer twenty shares.

William Hanna fifteen shares.

E. H. Hatry five shares.

M. Kenny three shares.

Otto Walther, as owner, five shares.

Otto Walther, as pledgee, twenty-three shares.

George O’Connor five shares.

Thomas O’Connor, Jr., two shares.

That they represent fifty-five shares of the capital stock, aggregating one hundred in all, of $100 each, that is to say, $10,000 in all; and that 6ne of the plaintiffs holds in pledge twenty-three shares, in addition, making seventy-eight shares, in all.

That, while Louis Sincer is the president of said corporation, and a member of the board of directors, which is charged with the administration of its affairs, he has been practically excluded therefrom by the action of the defendant, W. D. Alverson, who is the secretary and treasurer — said Alverson having assumed and exercised control and conduct of the business of said company.

That he has so conducted its affairs, in the management aforesaid, as “to have entailed heavy and severe losses upon the corporation, defaulting upon its credit and impairing its capital stock.”

That against the protest of petitioners as stockholders, said Alverson has issued obligations in the name of the corporation, and has made use of same for his personal benefit, and applied the proceeds of the discount of same to his own advantage, and to the detriment of the corporation.

That being in possession of the assets of the corporation, he has secreted same, and is making an effort to make way with and remove the same.

That they have made repeated efforts, but in vain, to 'obtain from said Alverson a statement of the business of the corporation, as well as an accounting of its resources and disbursements, its assets and its liabilities; but this he has refused and declined, assigning as his reason therefor, that petitioners had no right to make a demand of him.

That, if said defendant is allowed to continue to manage and administer the affairs and business of the corporation, it will result in the loss and destruction of its property, and “entail upon petitioners, as stockholders, a loss of their investments in the capital stock of said company.” (Our italics.)

The answer of the defendants is, "that the company’s affairs have been well managed by, said Alverson, and that no complaint has been made to him or to the board of directors as to any mismanagement on his part. i

That there are no pressing creditors demanding payment of their claims.

That the annual meeting of the stockholders of the corporation is to be held under the charter, on the 6th day of February next, and if the plaintiffs desire to change the management of the corporation, a majority of the stockholders can then do so.

They aver, that if a receiver is appointed, the credit of the corpora.tion will be destroyed; and if said Alverson is enjoined from managing the affairs of the corporation, great loss will be entailed, “which will result in the corporation being unable to pay its creditors.” •

They specially deny “that plaintiffs hold a majority of the shares of the capital.stock of said corporation; and they aver that a majority of the holders of the capital stock are well satisfied with the administration of its affairs by W. D. Alverson, and are willing that he should ■be retained in the management of the corporation.”

Taking the foregoing statement of the answer as absolutely true for the purpose of the argument, it is evident that the plaintiffs would obtain no relief from the grievances of which they complain, at the contemplated stockholders’ meeting.

It further appears from the statement of the assets and liabilities of the corporation which is appended to the transcript, that it is insolvent.

The showing made is as follows, viz.:

By invoice of stock in hand..............................$4,049 00

■Open accounts due to the corporation.................... 1,498 93

Cash on hand ......................................... 225 09

Total..........................................$5,773 02

To bills payable, etc...................................$2,848 24

Balance credit..................................$2,924 78

But this showing does not take into account the capital stock of 1 $10,000.00; and if a settlement were effected on that basis — accepting ■all of the open account as equivalent to cash — and a loss of $7070.22 to the stockholders in the aggregate, must result; or, in other words, the stockholders would realize about twenty-five per cent, on the dollar of ■their investment.

As further illustrating the situation of affairs, W. D. Alverson places himself upon the aforesaid statement as a creditor of the corporation for $1,189, balance due him on salary.

Not only so, but he enters upon said statement the following list of ■the shareholders of the corporation, viz.:

W. D. Alverson, shares 53.

F. J. Matthews, shares 2.

!E. E. Hatry, shares 5.

W. J. Kane, shares 2.

O. Walthers, shares 5.

M. Kenney, shares 3.

•Geo. W. O’Connor, shares 5.

L. Sincer, shares 20.

Mrs. K. Alverson, shares 5.

On this representation of W. D. Alverson!s holding of stock, it is ■ quite apparent why he should be well satisfied with the administration of the affairs of the corporation, the whole of which was under his • control.

By comparing the two statements with respect to the shareholders, it will be observed that the only holdings of the plaintiffs which the' defendants dispute are those of William Hanna, fifteen shares, and Thomas O’Connor, Jr., two shares; and it further appears that all the stockholders enumerated on the defendant’s list are plaintiffs in this .•suit, except four, viz.:

W. D. Alverson, F. J. Matthews, W. J. Kane and Mrs. K. Alverson.

W. D. Alverson as a witness, gave to the court the following information as to the fifteen shares of stock of Wm. Hanna, which were omitted from his (witness’) list, viz.:

“Q. How many shares has Mr. William Hanna?

“A. None. '

“Q. Did you not sell William Hanna fifteen shares of this stock, .and then transfer them to him; and didn’t he, subsequently, deliver them to you for the purpose of having the transfer recorded ?

“A. I sold him thirty shares.

“Q. You sold him thirty shares ?

“A. Yes; thirty shares.

“Q. Did you deliver the certificates to him?

"A. No, sir.

<rQ. In whose possession are those certificates ?

“A. Mine, sir.

“Q. How many of them belonged to him?

“A. He has paid on account of that stock—

“Q. How much has he paid on account?

“A. He has paid $1000.00.

“Q. Did you deliver fifteen shares to him and endorse on the reverse of it your delivery of stock to Mr. Hanna, stock in the W. D. Alverson Company, Limited?

“A. I did, sir.

“Q. Have you that stock?

“A. Yes, sir.

“Q. Is it in your possession?

“A. Yes, sir; it is at the office of the company.

“Q. It was turned over to you for the purpose of making a transfer on the hooks of the company, 'was it not ?

“A. No, sir; it was returned to me as security until he paid the-balance due on it.

“Q. How much did you sell it for?

“A. Seventy-five cents on the dollar.

“Q. Fifteen shares was (worth) $1000.00?

“A. No, sir; $1125.00.”

But, this witness had just answered that he had already paid him $1000.00; and, consequently, there remained due only $125.00, for which he held the whole amount as security.

The following is the further evidence of said witness, viz.:

“Q. Leaving Mr. Hanna’s fifteen shares out, how many shares-would you have?

“A. Well, the difference between fifteen and sixty. ■

“Q. Then, you would have forty-five shares?

“A. Yes, sir.

* -x- * -x *

“Q. Mr. Louis Sincer has twenty shares ?

“A. Yes, sir.

“Q. Mr. William Hanna has fifteen shares, if they are his?

“A. Yes, sir.

“Q. Mr. E. E. Hatry has five shares ?

“A. Yes, sir.

“Q. And Mr. Maurice Kenney has three shares?

“A. Yes, sir.

“Q. And Mr. Otto Walther has five shares?

“A. Yes, sir.

“Q. And Mr. George O’Connor has five shares?

“A. Yes, sir.

“Q. And Mr. Thomas O’Connor has two shares?

“A. Yes, sir.

“Q. And Mr. Matthews two shares?

“A. Yes, sir.

“Q. That makes fifty-seven shares of stock?

“A. Yes; if there is no mistake in calculation.

“Q. Then, you would not have forty-five shares of stock, if Miv Hanna’s stock was his stock; you would only have forty-three?

“A. Yes, sir; that is correct, as you counted it.”

The result of that investigation is, that the defendant, W. D. Alverson, as a witness, testified that the list of stock-holders as given in the plaintiffs’ petition is absolutely correct, and that they are the owners of fifty-five shares of stock — a clear majority of five, not counting the twenty-three shares which are claimed by Otto Walther, as being in pledge to him.

That being his sworn testimony, the further result is, that the representation made in his statement of assets and liabilities of the corporation, and as to its shareholders, is incorrect.

Instead of his having fifty-three shares as stated, he had that number, less the fifteen shares of William Hanna he had erroneously claimed; and, after deducting them, he had only thirty-eight.

The following interrogation of that witness shows, in a very clear light, the absolute control W. D. Alverson had of the affairs of the corporation, and the great difficulty there was in removing him from the management of the corporation.

“Q. And that was brought to the attention of the stockholders and officers of the corporation, was it?

“A. It was very seldom that we got the board of directors together.

“Q. Wasn’t the reason of that, because you had assumed exclusive'

control and management of the business, and was indifferent to their-wishes or request?

“A. No, sir.

“Q. That is not so?

“A. That is not so, sir!

“Q. When was the last statement that you rendered an accounting to stockholders of the company?

“A. On the 11th of January.

“Q. On the 11th of January, this year?

“A. Yes, sir, 1899.

“Q. Who was present?

“A. Myself and Mr. Sincer, the president.

“Q. Was anybody else present?

“A. No, sir.

“Q. Who else was on the board of directors?.

•“A. Mr. Matthews.

•'“Q. Hasn’t he resigned froxri the board?

"“A. His resignation was not accepted.

••“Q. Who didn’t accept the resignation?

•“A. The board -of directors.

“Q. Who is the board of directors?

'“A. Myself, Mr. Sineer and Mr. Matthews.

'“Q. Mr. Matthews resigned, and you refused to accept his resignation?

‘A. He sent in his resignation, resigning as an officer of the board, but there was no quorum to act on his resignation.

AQ. How many shares has Mr. Matthews?

'“A. He owns two shares.

“Q. Two shares ?

■“A. Yes, sir.

Now, conceding W. D. Alverson to be the owner of forty-three •shares, and Matthews two — forty-five for the two — and Lewis Sineer only twenty shares, the acceptance of the resignation of Matthews depended entirely on the pleasure of Alverson; and as there were but three members in the board, and Matthews not acting, a dead-lock was brought about, and gave Alverson absolute control of the corporation.

And, as matters stood when this suit was filed, and upon the showing made upon the books of the company accrediting Alverson with fifty-three shares of the stock, he would have held as complete con- ' trol over a meeting of stockholders, as he had over the company’s .board of directors.

There is another subject of discussion which is deserving of mention, and to which we will make reference by quoting the testimony, ■viz.:

“Q. Did you execute to Mr. Otto Walfher three notes for $100 «each in the name of. W. D. Alverson Company, Limited, and give him your stock as collateral security, and use the proceeds realized from -those notes for your own personal benefit and advantage?

“A. I pledged to Mr. Whither three or four notes in connection with the stock certificates as collateral on a personal loan. (Our italics.)

-"Q. Whose notes did you execute in order to obtain the loan ?

“A. The notes were executed by the W. D. Alverson Company, .Limited, to W. D. Alverson.

“Q. You executed notes of the corporation to your own order?

“A. No, sir; the corporation executed them.

“Q. Who executed and authorized the execution of those netes?

•“A. The board of directors.

“Q. How was that done?

'“A. That was done under a resolution of the board of directors. “Q. Who participated in that proceeding ?

■“A. The president, Hr. Louis Sincer, and Mr. F. J. Matthews. “Q. Have you those notes in your possession?

•“A. Yes, sir.

"“Q. Will you produce them.

•“A.' No, sir, I can’t now; but they are at the office of the company. ■^Q. You took them up this morning?

UA. Yes; I took them up this morning.

“Q. Would you recognize a copy of those notes if you were shown them ?

“Q. Look here; (witness shown a document).

'“A. This is correct, sir.

• “Q. Did the president of the company sign those notes ?

“A. No, sir.

(The notes were then offered in evidence).

“Q. These are the four notes which you executed in the name of -the W. D. Alverson Company, Limited?

"A. The W. D. Alverson Company did it.

“Q. Who drew the notes?

“A. The secretary and treasurer■ per resolution of the hoard of directors.

“Q. That is you?

“A. Yes, sir. (Our italics).

“Q. You say that Mr. Louis Sincer, the president, voted for that -resolution ?

“A. Yes, sir.

“Q. Are you positive of that ?

“A. Yes, sir.

“Q. Well, if he voted for the resolution, why is it that he didn’t -sign the note?

“A. There was a resolution passed by the board of directors, empowering the secretary and treasurer to sign checks and notes, only for the benefit of the company.

“Q. That resolution was passed 2 '

“A. Yes, sir.

“Q. Didn’t you call upon Mr. Sincer, your president, within the-past thirty days and request him to sign a note of $300, and didn’t he decline to sign it ?

“A. Yes, sir.

“Q. Why, then, if the resolution existed, did you call on Mr. Sincer, the president, to sign the note?

“A. I gave the note to Mr. Walther, and Mr. Walther said that betook the note, and they refused to discount the note unless the president would put his name on it as an endorser, etc.”

• From the foregoing, it is quite evident, that the defendant did, as secretary and treasurer of the corporation, execute notes in the name of the corporation and pledge the same, with his certificate of stock attached as collateral, to Otto Walther, one of the plaintiffs in this suit, and used the proceeds for a personal loan to him.

That he drew those notes as secretary and treasurer of the company, without having procured the signature of the president; and, notwithstanding he declined to sign same upon application made to him; and that the resolution of the hoard of directors, on the authority of which he claimed to have acted, only authorized the issuance of notes "for the benefit of the company ” as he states in his testimony.

It is further noticeable, that, notwithstanding W. D. Alverson, as a witness, admits that he had taken up those notes on the day on which he testified, they find no place in the statement of assets and liabilities pf the corporation, which he produced in .court, and which is annexed to the transcript and brought up in the original.

Considering the fact that the stock of the company, on the defendant’s own showing, is not worth more than twenty-five cents on the dollar; that the management of the company’s affairs by the defendant, as secretary and treasurer, has been unsatisfactory and injurious, and that he has confessedly disposed of shares of its stock at seventy-five cents on the dollar; that the board of directors is practically composed of two directors — the third having tendered his resignation— and those two unable to agree upon any proposition; that the defendant, W. D. Alverson, having obtained possession as secretary and treasurer of fifteen shares of the capital stock of the corporation in •trust for another, employed and used same as his own, with the apparent purpose of having it appear, as it is alleged in his answer, that he was the holder of the majority of stock, and exercised same to the detriment of the corporation — we are of opinion that .plaintiffs, as stockholders, have made out a case entitling them to have a receiver appointed for the purpose of taking charge of its assets and affairs, and winding up the business of the corporation according to law.

The law seems to contemplate just such a case, as this record discloses.

That the “Civil District Court of the parish of Orleans (is) em- powered to appoint receivers to take charge of the property and busi- “ ness of corporations ***** “ at the instance of any stockholder or creditor when the directors, or 41 other officers of the corporation are jeopardizing the rights of stoek- “ holders or creditors by grossly mismanaging the business, or by 41 committing acts ultra vires, or by wasting, misusing, or mis-applying “the property or funds of the corporation.”

Section 1, paragraph 2 of Act 159 of 1898.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled and reversed; and it is further ordered and •decreed that a receiver be appointed to take charge of all the property, rights and credits of the W. D. Alverson Company, Limited, with full power and authority under the law to wind up and liquidate its business and affairs, and that W. D. Alverson, individually, be adjudged to pay all costs of both courts.

The Chief Justice, absent from, the argument, and Mr. Justice Monroe, who became a member of the court after its submission, took no part in the decision of this case.


text:
    No. 13,064.
    Emile Poissenot vs. Joseph Reuther.
    Syllabus.

      An employer who, suddenly, upon the spur of tRe moment, and In .a spirit o£ anger, denounces an employee as a thief, and attributes to him other vile epithets, In a public place, and in the presence of many persons, is liable In damages for slander — notwithstanding the employer had been justly annoyed by a quarrel that had arisen between the employee and his manager.
    Their quarrel constituted no just ground for the employer’s slanderous utter»' anees.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Bilis, J.

      Sambola J Lucros for Plaintiff and Appellee.

      Branch K. Miller for Defendant, Appellant.
    Argued and submitted April 20, 1899.
    Opinion handed down May 1, 1899.
   The opinion of the court was delivered by

Watkins, J.

This is an action for slander and defamation of character, and the plaintiff demands of the defendant, the sum of' three thousand dollars “as real and exemplary or vindictive damages.”

The case was tried before the judge, and, upon the administration of proof on both sides, he rendered judgment in favor of the plaintiff in the sum of $250.00, and from that judgment, the defendant prosecutes the present appeal.

Answering the appeal, plaintiff and appellee insists that the allowance should be increased to $500.00, and that, as thus amended, the-judgment should be affirmed.

The averment of the petition is, that at the defendant’s bakery,, where petitioner was working on the 20th of June, 189Y ,as a journeyman baker, said-defendant “without cause or (any) provocation what- “ ever, did then and there maliciously defame and slander your peti- tioner in the presence and hearing of several persons, the employees’ “ of defendant at said bakery, by calling your petitioner a thief, a- “ damn thief and son-of-a-bitch,” etc.

And that said defendant, at the same time and place, discharged' him from his employ, and peremptorily ordered him to leave the-place.

He represents that he has always borne a good name and character in the community; that his integrity has never been questioned; and’ that he has always earned an honest livelihood and worked hard to support his family.

That the aforesaid vituperative and approbrious epithets and malicious utterances of defendant have grievously damaged in him in-character and reputation, and in his business relations; and have, also,, wounded his feelings, and humiliated him and brought him into contempt and disrespect amongst his acquaintances and fellow-laborers.

That he has, since that occurrence, been unable to obtain employment as a baker.

The defendant’s answer is a general denial.

In his reasons for judgment, the judge a qtio makes this statement,viz.:

“The evidence establishes, that the defendant did call the plaintiff' “ a thief, and did use the abusive words regarding plaintiff, in the- “ presence of several persons, as alleged in the petition.

“It is urged that plaintiff’s action should fail, upon the ground that “plaintiff and defendant were engaged in a quarrel, and that what de- “ fendant said to plaintiff, was caused by plaintiff’s abusive language- “ regarding defendant.

“The evidence does not sustain this position, and, therefore, the? “well-settled rule, that, when parties quarrel, and, in hot blood, de- “ nounce and abusé each other, neither can recover, does not apply.

“The evidence shows that hours before the defendant came in and “ abused the plaintiff as alleged, the plaintiff and defendant’s foreman “ had had a quarrel, and had roundly abused each other-1 — the subject " of this quarrel being that the foreman was dissatisfied with the man- “ ner in which the plaintiff had baked the bread.

'Whatever, may be the merits or demerits of either the plaintiff or-“the foreman, I do not decide.

“Whether one or both were in fault, does not affect the issue here, “ Whatever that trouble may have been, the defendant, as proprietor;, “was sent for and complaints were lodged with him against the “ plaintiff; and, after a delay of some hours — plaintiff still going on “with his work — the defendant came'to the'bakery and began talking to the plaintiff. WTiereupon, plaintiff began denouncing the fore- “ man; but, in no wise, abusing the defendant.

“Upon this, the defendant called plaintiff a thief, and applied, to- “ him other -abusive language, in the presence of all who were in the-“bakery; and ordered him to get his clothes and leave.

* *****

“That defendant was annoyed and angry seems true, but, he had no- “ excuse for abusing the plaintiff and calling him a thief. If he saw “ proper to do so, he had a right to discharge the plaintiff, but not to “ denounce him.

* * x- * * *

“Unfortunately, men lose their tempers, and the defendant lost his, “and without just cause, or excuse, abused and slandered the plaintiff' “ as alleged in the petition.

“For this injury to his feelings, and assault upon his character, the “ plaintiff is entitled to reparation.”

Our appreciation of the evidence, does not differ from that of our learned brother of the District Court.

There is no doubt of the fact, that the defendant was greatly annoyed and.troubled by the reports that had been made to him of the “trouble that existed between the manager of his bakery and the plaintiff as an employee; and that it had the effect of carrying him to the bakery, very early, on the following morning.”

Yet, that was no ground or excuse for his epithets and abuse of the 'plaintiff, suddenly and upon the spur of the moment, in a public place, :and in the presence of many persons; and his summary and instantaneous discharge from employment.

This case comes clearly within the rule announced in Spotorno vs. Fourichon, 40th Ann. 424; Savoie vs. Scanlan, 43rd Ann. 937; Weil vs. Israel, 42nd Ann. 955, and Warner vs. Clark, 45th Ann. 863.

But we do not think it a proper case for an increased allowance of damages.

Judgment affirmed.


text:
    No. 13,039.
    Succession of Julien Landier.
    Syllabus.
    Notwithstanding the surviving widow in community, has, under our law, d legal usufruct upon the undivided share of the heirs in the property of the succession of the deceased, she is not entitled to take possession of such property, and enjoy the fruits and revenues thereof, until she shall have caused an inventory and appraisement to be made of such property, and an abstract of said inventory to be registered in the book of mortgages in the parish in which the property it situated.
    This is a condition precedent, imposed by our law upon the exercise of the legal .usufruct of a surviving spouse.

      ON APPEAL from the Civil District Court for the Parish of Orleans. Theardj J.

      B. Howard McQaleb for Plaintiff and Appellant.

      B. J. Meral for Opponent and Appellee.
    Argued and submitted April 18, 1899.
    Opinion handed down May 1, 1899.
   The opinion of the court was delivered by

Watkins, J.

Application was made by Felicien Landier as an emancipated minor, residing in the city of New Orleans, to be appointed administrator of the succession of his father, a late resident' of said city, who departed this life on the 4th of July, 1898, leaving some property within the jurisdiction of the court.

In his petition it is alleged, that his father was married to Felicie Janin, in said city, in 1878, and of that marriage three children were born, and respectively aged nineteen, fifteen and thirteen years — petitioner being the eldest.

That at the time of his death, his father was a passenger on the ill-fated French steamer “La Bourgogne,” destined to Paris, France, and perished, with all on board of her, when she sunk off the coast of Sable Island.

He avers that his mother resides at Malakoff, in the vicinity of Paris, France, and that his two younger brothers are residing with her; and that they have so resided for many years.

His prayer is, that an inventory be taken, and that he be appointed and confirmed administrator of his father's succession in this State.

The inventory when taken showed as total assets the following, viz: (1) A bill of exchange for three thousand francs, valued in

American money at..............................$576 90

■(2) A promissory note, due to the deceased, by 0. A. Dinkel. $150 00

<3) Real estate in New Orleans........................ 2500 00

$3226 90

To the aforesaid application Felicie Janin, as widow in community of the deceased, alleging her residence to be in the Republic of France, raadé opposition — appearing by Pañi Desmaries, as agent and attorney in fact.

Tbe grounds of her opposition are (1) that the applicant is a minor, and that the judgment of the court emancipating him is absolutely null and void, having been obtained by the consent of the curator ad hoc; (2) that the property inventoried belonged to the legal community of acquets and gains, which existed between herself and her-deceased husband, and that she is owner in her own right, of one-half of same as surviving widow, and usufructuary of the other half; (3) that there are no debts due by the deceased except one of $198.50, for which the deceased had made provision with which the creditor is-satisfied.

• She avers, that, as surviving widow, she is entitled to peaceable enjoyment of the property, and of its fruits and revenues as provided by law, “and that she is now in legal possession of the same,” and, hence,, there is no necessity for an administration of the succession of the deceased.

The court, being of opinion that an administration was unnecessary, sustained the opposition of the widow in community, and rejected the-demand of the petitioner, and from that judgment, the latter has appealed.

The tendency of the evidence is to the effect, that the deceased had arranged with his creditor that the rent of his 'house should be applied' to the discharge of his indebtedness.

Erom the foregoing statement, it is clear, that an administration of the succession is not necessary.

True it is, that the opponent as surviving widow in community, is-owner of one-half of the property which is community; but, it is-equally true, that the other half belongs to the children, all of whom are minors, except petitioner, who is emancipated.

But, she was bound to cause an inventory of the community property to be taken. R. C. C. 251.

She was required to give a special mortgage, or to cause the legal mortgage in favor of the children to be inscribed in the manner prescribed by law. R. C. C. 251.

The ’mother who refuses the tutorship of her children, retains thesuperi'ntenidence of them, and the care of their education. R. C. C.. 253.

Among the mandatory provisions of our law, the following are conspicuous, viz.:

“In the several cases in which the tutor is not required by law to give bond, it shall be the duty of the clerk of the District Court of the parish in which the appointment is to be made to furnish a certificate of the amount of the minor’s property according to the inventory on file in his office. This certificate must be recorded in the mortgage book of the parish in which the tutor resides. R. O. 0. 321.

“Before fathers and mothers, who, by law are entitled to the usufruct of property belonging to their minor children, shall be allowed to take possession of such property, and enjoy the fruits and revenues thereof, they shall cause an inventory and appraisement to be made of such property, and cause the same to be recorded in the mortgage bools of every parish in the State where they, or either of them have immovable property." R. 0. 0. 3350;. 3351; 3356.

In the instant case, the opponent has failed, altogether, to observe a single one of those requirements.

While still residing in the Republic of France, where she affirms her domicile to be, she retains the custody of the two minor children, and sends a power of attorney to a creditor of the succession, residing in New Orleans, who, in her name, sets up claim to one-half interest in property situated here,- and which chiefly consists of improved real estate, on the ground that she is surviving widow of the deceased, and entitled, under the law of Louisiana, to a legal usufruct upon the one-half belonging to the heirs of deceased.

And all this is asserted, notwithstanding the fact that she has never caused an inventory to be taken or an abstract of inventory to be recorded.

While we are of opinion that in the present situation, an administration would be both unnecessary and expensive, and that the judge a quo properly maintained the opposition of the surviving widow to-an administration; yet, we feel constrained to hold that she should, as a condition precedent to the exercise of her rights as surviving-widow in community, cause an inventory and appraisement to be-made — one upon her account — of all the property and effects of the deceased, and an abstract of same recorded in the book of mortgage?,, so as to amply protect the rights of the heirs of the deceased.

Thus holding wdl, necessarily, result in reversing the judgment appealed from, and the entering of a different decree.

It is therefore ordered and decreed, that the judgment appealed irom be annulled and reversed; and it is further ordered and decreed, that the opposition of the widow in community be rejected at her cost.

It is further ordered and decreed that the surviving- widow and opponent, shall cause a true and faithful inventory and appraisement to be made of all the effects of the succession of the deceased; and that she shall cause an abstract of said inventory to be duly registered in the office of the recorder of mortgages of the parish of Orleans, conformably to law, and within ten days from the finality of this decree; and that in default of so doing, the judge of the District Court shall proceed to appoint an administrator for said succession, according to law.

It is finally ordered,'that the cost of appeal be taxed against the ■opponent.


text:
    No. 12,958.
    In the Matter of the City of New Orleans, Praying to Be Put in Possession.
    Syllabus.
    When an assessment made of real estate with certain name and description is valid, either of itself or rendered so by reason of confirmatory action of the ' owner, publication and sale of same in the same name and with the same description will convey a title to the purchaser that will be upheld as against the delinquent tax-payer and his heirs and assigns.
    Notice of proceedings for the sale of properly for delinquent taxes, is sufficient if it conform to the requirements of the State revenue law — same not being analogous to the citation which is prescribed by tho Code of Practice.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Wynne JRogers for Plaintiffs in Injunction, Appellees.

      Sami. L. Gilmore, City Attorney, and W. B. Sommerville, Assistant -City Attorney, for City of New Orleans, Defendant in Injunction, Appellant.

      Argued and submitted March 10, 1899.
    Opinion handed down March 20, 1899.
    Rehearing refused May 1, 1899.
   The opinion of the court was delivered by

Watkins, J.

Proceedings were inaugurated in the premises by the petition of the city attorney, for an order of seizure and possession, directed to the civil sheriff, and commanding him to seize the property described, and to place the city in actual possession thereof — the property being known as lot No. 26 in square 200, bounded by St. Charles, Prytania, Euterpe and Polymnia streets, measuring 26 feet front on St. Charles street, by 127 feet, 10 inches and 3 lines in depth.

Said order was predicated upon an alleged purchase of said piece of property by the city with its improvements, at a public sale made for the delinquent taxes of the years 1889, 1890, 1891, 1892, 1893 and 1894, which was made on December 2, 1895, as will more fully appear by an act of sale passed before Taylor, notary, on December 13, 1895, and registered in the conveyance office, book 162, folios 113 to 116, which is made a part of the petition.

In the act of sale it appears, that this property had been assessed in the years specified, in the name of Widow Martha F. Churchill and minors, and of Widow Martha F., Charles R., and Miss Ida Churchill, and that under this assessment, the property was advertise^ and sold, and the same was bid in for, and adjudicated to the city, at the total price of $844.63 — the same being the total amount of city taxes due by, and on said property for said years.

It further appears that it was sold under, and in pursuance of the provisions of Acts No. 119 of 1882, and No. 85 of 1888, and other laws in such cases made and provided.

To this proceeding, Charles R. Churchill and Mistress Ida Churchill, wife of J. F. Thomas, Jr., obtained an injunction against the issuance of said writ of seizure and possession.

In their petition they alleged, that the adjudication and sale of the aforesaid property to the city are absolutely null and void; (1), because the property was wrongfully assessed for the years for which the alleged sale was made, in the name of a party not the owner; f2), that said property was advertised for sale in the name of a party, not the owner; (3), that the description of said property on the assessment rolls for the aforesaid years was incorrect, defective and insufficient, .and the assessment was illegal for want of certainty in its description; t4J, that the advertisement of sale was illegal because of those wrongful and defective descriptions of said property; (5), that your petitioners were never served with a notice of seizure and sale of said property as required by law.

To this injunction suit, the city made a general denial; and, upon the trial, judgment was rendered in favor of the plaintiffs, and .against the city, perpetuating the injunction.

It further decreed that the sale and adjudication to the city was illegal, null and void; and it ordered that the inscriptions of the said sale be cancelled.

It is from that judgment that the city has appealed.

An inspection of the record, as well as the argument in briefs and orally, disclose, that the first'three grounds of objection are the same, in substance — that js to say — that the assessment was erroneous to the •extent'that Mistress Martha E. Churchill, widow, was named as one of the joint owners of the property, whereas, in point of fact, it is owned by the two plaintiffs in injunction solely, and in .indivisión, as -the heirs of their father.

The record shows, that Charles H. Churchill died on the 26th of April, 1868, and that his widow, Mistress Martha P. Churchill, was appointed as tutrix on the 10th of March, 1883, for her two minors, Charles R. Churchill and Ida E. Churchill, on the basis of an inventory then taken.

That the property in controversy was included in the inventory, and appraised at $6000.00; and the inventory contained the statement that “the whole of the real estate inventoried herein as belonging to said succession was acguired by said Charles H. Churchill, previous to his marriage.”

That, on the 23rd of January, 1889, a mandamus proceeding was filed in thé Civil District Court in the name of Widow Martha E. Churchill, Charles R. Churchill, and Miss Ida Erancis Churchill, the latter an emancipated minor; and, in their petition it is alleged, that taxes had been assessed against the property in controversy for the years 1876, 1878, 1879, 1880, 1881, 1882, 1883, 1884, 1885, 1886, 1887, and 1888, in favor of the city; and that the same had been registered in the mortgage office, from which a mortgage resulted in favor of the •city for the taxes' of those years.

The petition further represents, “that all of said taxes, and tax in-' scriptions were null and void, and should ho erased and cancelled' from the respective books of the city comptroller and recorder or mortgages, on the following grounds:

(1) That the taxes and tax liens, privileges and mortgages are prescribed by -three and five years.

(2) The assessments are made- in the name of Charles II. Churchill, who does not own the property; that said Charles IT. Churchill having died in 1869, his succession was duly opened in the late Second District Court, and that the properties were community property, and the plaintiffs herein were part owners as heirs of their father, with their mother as widow in community.

.Upon these representations, the plaintiffs prayed for a peremptory mandamus commanding and ordering the comptroller and the recorder of mortgages to cancel and erase from the respective books of their offices, the inscription of taxes and tax liens and privileges and mortgages against the property described, in the names of Charles II. Churchill, or, the estate of Charles II. Churchill, etc.

Thereupon, a judgment was entered, to the effect, that the provisional mandamus be made peremptory, and that the city comptroller and the recorder of mortgages, do cancel and erase from the books of their respective offices, the inscription of taxes, tax liens and privileges on the pro-penty in controversy.

Erom that judgment, no appeal was taken, and, it, consequently, became final.

It further appears, that this decree was filed in the proper city offices, and brought to the attention of the board of assessors of the parish of Orleans, and that, subsequently, and during the years men-' tioned in this suit, the property was assessed in conformity therewith —-that is to say, in the names of Martha T. Churchill, and of the plaintiffs, as the widow and heirs of Charles IT. Churchill.

It is against these assessments and the privileges and mortgages resulting therefrom, that the present suit seeks relief for the two plaintiffs, claiming to have inherited the property from their father, Charles II. Churchill, as his separate property.

• In other w-ords, the proposition we have to consider is this, that, whereas, the property was inventoried as the separate property of Charles TI. Churchill, who died in 1869, and was subsequently assessed to him during’ all the years prior to 1889, and from which the plaintiffs were relieved by the mandamus suit and judgment, on the theory that, as a matter of fact, the property was community and owned by them and their mother jointly, the plaintiffs in the present suit seek to be relieved from the payment of all taxes assessed against the property since the year 1889, upon the theory that the mandamus suit was wrong, and that, in point of'fact, the property was owned by their father separately, and that their mother had no interest therein— claiming that they had no knowledge of the mandamus proceeding, and never authorized the institution of that suit by Charles P. Johnson, who claimed to act as agent, nor by James C. Moise, who signed the petition as attorney for the relators.

The trend of all the testimony is to that effect.

In our opinion, their pretensions cannot bo entertained.

On the faith of the records of the Civil District Court, the property was assessed for a great many years as the separate property of Charles II. Churchill, from which the plaintiffs were relieved, through the effect of the mandamus suit; and upon the faith of the judgment therein rendered, the assessing officers made the assessments in years subsequent thereto, from which they seek relief upon the theory, that the mandamus suit and judgment were erroneous.

Between the two, we are asked to render a judgment whereby the plaintiffs will be relieved from the payment of the taxes of over twenty years, by means of this circuity of action.

Before passing on this question, an examination of our jurisprudence will be both necessary and instructive.

In Sewell vs. Watson, 31st Ann. 589, the point was made that title to property derived at a tax sale was bad, because it was assessed on the roll in the name of a man who had previously died, of which the court, speaking through Mr. Justice White as its organ, said: “This ground “ of relief is not good. The property stood on the public records as “that of James II. Coleman, and was so assessed. The assessor in “ listing the property for taxation, cpuld have assessed it in no other “way than as it stood on the records of the country, unless it be con- “ sidered that it was his duty to be informed of facts not public, not “to be ascertained from the condition of the property, or from its “ occupants, for it had none.”

In Mason vs. Bemiss, 38th Ann., 935, the charge was that the tax title was null, because the property was not assessed in the name of the true owner, and the court, through Mr. Justice Todd, said :

“It is not required of the officer charged with the assessment that before making it he should constitute himself a judge of the validity or invalidity of the judicial proceeding upon which the title to the-property purports to rest, hut that the fact of possession for many years as owners, under an adjudication, would alone suffice to guide- and determine him in malting the assessment as relates to the ownership of the same.”

In Insurance Company vs. Levi, 42nd Ann. 432, a number of pertinent eases, announcing the same doctrine, are collated and approved.

In Carter vs. City, 33rd Ann. 816, it was held, that “when the “ assessment made, with certain description and in a certain name, is-“valid, either of itself, or by reason of cpnfirmatory action of the- “ owner, publication and judgment in the same name, and with the “ same description will be upheld, if otherwise regular.” Lane vs. March, 33rd Ann. 554, is to the same effect.

In Reed vs. His Creditors, 39th Ann. 115, this court applied the doctrine of equitable estoppel to a tax delinquent, who complained of the accuracy and sufficiency of assessments.

In Oteri vs. Tax Collector, 42 Ann. 374, it was held, “the contention- “ that some of the property assessed in plaintiff’s name was not owned “ exclusively by himself, but owned by himself conjointly with others, “ involves only the correctness of the assessment, and cannot be urged after the expiration of the time-limit fixed in the statute.” See Shattuck & Hoffman vs. City of New Orleans, 39th Ann. 206.

In Palmer vs. Board of Assessors, 42nd Ann. 1122, the court said:

“Plaintiff cannot compláin that after the sale to Fishel, which was “ duly recorded, the property was assessed in the name of Fishel.

“The State was guarantor of that title, and the assessors were “ bound to respect it.

“It was spread upon the public records as evidencing the existing “ title, and the assessors were not bound to go behind it.”

In Prescott vs. Payne, 44th Ann., 650, it was said:

“But, it is equally true, that, as matter of law, the Hitchcock title- “ was apparently a good one, and entitled to be respected and upheld as • “ such until judicially investigated and declared null and void.

“This being the case, and this principle being applied to the Offut' “title, it seems manifest that the assessing officer was justified in' “ making the assessment according to the title.

“It was certainly not his duty to institute an examination into prior “ assessments, to ascertain the possible illegality of the sale to Offut ? “ and had he made such an examination, and found what, in his opinion, was evidence of error, or illegality in such assessment, it would have been unquestionably out of his power and beyond his capacity “ to so decide, possessing no judicial power.

“Accepting this view as correct, we are of the opinion that any al- “ leged errors in the title' of Offut could not possibly affect an assess- “ ment made in‘his name during the time the property stood upon the “ record in his name.”

In Augusti vs. Citizens’ Bank, 46th Ann. 530, this court expressed the opinion, “that it is made the duty of an assessor by statute) to ecx- “ amine the records of the conveyance office to ascertain what taxable “ property there is in his district or parish.

“The record of deeds and conveyance and of mortgages are taken “ as the basis of the assessment.

“It does not devolve upon him to test the validity of these acts in “ order that he may ascertain in whose name to assess the property.

“If an act be not radically null upon its face, he is within the law “ in taking as correct a recorded deed interested parties have for years “ permitted to remain on the record as an adverse title, unquestioned “ and unassailed.”

We have been at the pains to collate and make quotations from all of the foregoing authorities, for the purpose of making it clear, that, in our opinion, the defects of title which the plaintiffs suggest in their ’ injunction, cannot he entertained in any view that can be taken of them.

This court is fully committed to the theory that assessors are authorized to act upon the face of titles as they appear upon the record, and in which interested parties have apparently acquiesced through a series of years without making question or complaint in the manner required by law, in order to obtain correction, or relief therefrom.

With regard to the allegation of plaintiffs’ petition, to the effect, that they had never been served with the notice of the seizure and sale of said property as required by law, one of the plaintiffs testified positively, that he was never served with any such notice; but, on cross-examination admitted that Martha E. Churchill, widow of Charles H. 'Churchill, was his mother, that she resided at No., 1168 St. Charles avenue, and that he lived with her.

The other of the plaintiffs made a similar admission with respect to her residence , with her mother.

The city attorney introduced, over the objection of defendants’ ■counsel, a notice which was signed by the city treasurer, and addressed rto Martha F. Churchill, Charles R. Churchill and Miss Ida Churchill, ■of date April 23rd, 1895, the purport of which is, that the aforesaid .parties are advised that city taxes against the property in question for the years 1883 to 1895, inclusive, “are unpaid and delinquent,” and ■that after the expiration of twenty days from the service of this notice, if said taxes, interest and cost are not paid to the city treasurer, .proceeding will be at once taken, according to law, and said property ■advertised and sold to satisfy said taxes, interest and cost.

The official return thereon endorsed, is that it was served “on Widow Martha F. Churchill, in person, a person apparently above the .age of fourteen (14) years, residing at No. 1168 St. Charles street.”

In our opinion, such a notice, addressed to those joint owners .against whom the property in question had been assessed, and in whom the title appeared to be, and served upon one of the three in person at the domicile wherein all three at the time resided, is a sufficient compliance with the requirements of the revenue law. Sections 50 and ■51, Act 85 of 1888, page 129.

Tax statutes are sui generis;, and neither such a notice nor the. ■service thereof need possess the technical sufficiency of the citation •and return provided for in the Code of Practice.

There is no particular form of notice prescribed by the revenue laws.

The objection urged by counsel for plaintiffs in injunction is that ■no proof was administered of the capacity of the officer whose name is appended to the return, and that the return does not state his •capacity.

But no such objection was urged to its admissibility at the time •same was introduced and filed in evidence — the only objection then made being that the offer came too late, the case having been closed. This objection having been overruled, counsel reserved a bill of ex•ceptions.

Necessarily, any other objection there may have existed thereto was ■presumably waived.

Inasmuch as no proof was administered with regard to the alleged. imperfection and insufficiency of description of the property in the. ■assessment, our inference is that that ground of complaint has been .abandoned.

Entertaining these views, the judgment appealed from is erroneous, and must be reversed.

It is therefore ordered and decreed, that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the demands of the plaintiffs in injunction be rejected and disallowed, and that they pay all costs of both courts. It is further ordered that the rule taken in behalf of the city be made absolute, and that a writ pf seizure and possession issue as therein prayed for, addressed to the civil sheriff of the parish of Orleans, commanding him to seize the property therein described and place the city of New Orleans in actual possession thereof, and that the defendants in rule be decreed to pay all costs of proceedings therein.