author: Howell, J.

text:
    No. 6117.
    George B. Frost, Guardian, vs. City of New Orleans.
    A party must resort to the mode pointed out by law to correct an assessment, otherwise he will be bound by it.
    The only action taken by plaintiff in this ease is the presentment to the Board of Assessors o£ an unsworn application, setting forth the valuations made and those to which they should be reduced, the sums at which the properties wore rented and at which they were appraised in the probate court, and also setting forth that, in a proceeding in the Superior District Court against the "Auditor, the assessment was reduced to a specified sum in aprevious year. But. the statement of facts in the record does not show what evidence, if any, was presented to the board, or that the plaintiff pursued the course pointed out by law for correction of the assessment.
    APPEAL from the Superior District Court, parish of Orleans. Saw-kins, J.

      S. P. Blanc, Assistant City Attorney, for defendant and ap-pellee.

      Ilornor & Benedict, for plaintiff and appellant.
   Howell, J.

The plaintiff complains that the property of his wards was appraised too high; that he, in accordance with notice given, applied to the Board of Assessors to reduce the assessment one-half, which, they refused to do, in disregard of proofs submitted to them; that section forty-five of act No. 42 of 1871, which makes the decision of said Board of Assessors final, is unconstitutional, and lie asks that the city be enjoined from levying any tax upon said excessive assessment, that the said section bo declared unconstitutional, and the valuation of the property in question be reduced to the sum named in the petition.

The answer is that the Board of Assessors are vested with exclusive power to correct assessments, and have not been made parties; that plaintiff did not furnish a list of his wards’ property according to law; that he did not make application in due form to correct the assessment; that if ho ever was entitled to relief it is now too late to grant it in the courts, and that the courts are without jurisdiction of the question.

Judgment was rendered against plaintiff, and he appealed.

Without going into an examination of the constitutional question raised, it is enough to say that the plaintiff has not made such a showing as to entitle him to a judgment as prayed for, even if the question be within the jurisdiction of the courts. See 19 An. 474 and 21 An. 439, where it was held that a party must resort to the mode pointed out by law to correct an assessment, otherwise ho will be bound by it.

The only action taken by plaintiff in this case is the presentment to the Board of Assessors of an unsworn application setting forth the valuations made and those to which they should be reduced, the-sums at which the properties were rented and at which they were appraised in the probate court, and that in a proceeding in the Superior District Court against the Auditor the assessment was reduced to a specified sum in a previous year. The statement of facts in the record does not show what evidence, if any, was presented to the Board of Assessors, or that he pursued the course pointed out by law for correction of the assessment. Plaintiff has, therefore, failed to make out a case.

Judgment affirmed.


source: Caselaw Access Project

author: Mobgah, J.

license: Public Domain

text:
    No. 4820.
    Cecile Dupré, Wife of A. Humphreys, vs. Adolphe Dupré et al.
    Tlio plaintiff can not succeed in her attempt to annul a judgment which emancipated her from the ■liabilities oí a minor. The proceedings which she attacks are regular in form, there is no evidence or allegation of fraud in the record, and the parties whom she wishes to affect by obtaining a judgment of nullity were not parties to the judgment which she seeks to annul.
    APPEAL from the Parish Court, parish of Jefferson. Hyman, J.
    <71 J. Roman and G. W. Besangon, for plaintiff and appellee.

      JH. Bermu-dez, for defendants and appellants.
   Mobgah, J.

The plaintiff seeks to annul a judgment which emancipated her from the disabilities of a minor. The proceedings which she attacks arc regular in form, and there is no evidence or allegation of fraud in the record or in her petition, and the parties whom she wishes to affect by obtaining a judgment of nullity were not parties to tho judgment which she seeks to annul.

It is therefore ordered, adjudged, and decreed that tho judgment of the parish court be avoided, annulled, and reversed, and that this suit be dismissed, plaintiff to pay costs in both courts.

Rehearing refused.


text:
    No. 6167.
    Jules Ducasse vs. J. C. Keyser and Hugh McKenna.
    Thu plaintiff purchased by notarial act from one Petitjean a noto for six hundred dollars, secured by mortgages and mado by the defendants, due in two years from its date. In the samo act another note of tho same parties for the same amount and secured by the same mortgage, due at three years, was transferred as collateral security for the payment of tho former. Some timo after this transfer and after tho maturity of the first note and pledge, the defendants, makers of the said two notes, made a notarial pledge or transfer to plaintiff of a judgment in their favor as further collateral security for tho payment of tho said flrst-montionod note. Neither of tho notes is indorsed by the payeo and transferrer. This suit is instituted on the two notes and the notarial act of transfer and pledge.
    There can bo no doubt that tho plaintiff was entitled to judgment on the first note, and tho only Question is as to the correctness of the nonsuit in the court a qua on the second note, held merely as collateral security.
    As to the objection that tho notes were not indorsed, the notarial act had as much effect as the indorsement of tho payoo could have.
    In this instance,.the second note being intended to secure the principal debt evidenced by the first note, the sale to pay the principal debt, or tho first of the two notos, must necessarily be mado to pay the pledged note also, and if there be any surplus the pledger is entitled thereto. If the defendants have any rights as between them and the plodger, they can be settled hereafter in a proper proceeding between tho proper parties, and their rights in this respect will bo reserved.
    The plaintiff is entitled only to tho principal debt — tho first note at two years for six hundred dollars, interest, and costs — but to get that it is necessary to sell the mortgaged property, and it must bo sold to meet the notes unpaid.
    4 PPEAL from the Seventeenth Judicial District Court, parish of Natchitoches. Chaplin, J.

      Jack £ Pierson, for plaintiff and appellant.

      Cunningham, Chaplin £ Cunningham for defendants and ap-pellees.
   Howell, J.

The plaintiff has appealed from that part of the judgment of the lower court in this case which dismissed his demand as of non-suit on one of the notes sued on. The defendants pray for an amendment of the judgment.

The material facts are that plaintiff purchased, by notarial aot, from one Petitjean a note for six hundred dollars, secured by mortgage, and made by the defendants, due in two years from its date. In the same act another note, of same parties, for same amount, and secured by same mortgage, due at three years, was transferred as collateral security for the payment of the former. Some time after this transfer and pledge, and after the maturity of the first note, the defendants, makers of said two notes, made a notarial pledge or transfer to plaintiffs of a judgment in their favor as further collateral security for the payment of the said first-mortgage note. Neither of the notes is indorsed by the payee and transferrer. This suit was instituted on the two notes and the notarial act of transfer and pledge. The defense, by exception and answer, is that the transfer and pledge is not legal, because the notes are not indorsed, and defendants have equities as against the makers, and no judgment should be rendered on the pledged note under the circumstances and at the same time as on the principal demand.

In the act of transfer and pledge, which is'anterior to the maturity of either note, the payee transferred specially to the plaintiff “ all his rights, actions, privileges, and mortgages against the said J. C. Keyser and Hugh McKenna, in the act of mortgage aforesaid, subrogating said Jules Ducasse to said rights and actions, privileges, and mortgages, to be by him enjoyed and exercised in the same manner as they might have been by the said Frangois Petitjean, transferrer.”

There can be no doubt that plaintiff was entitled to judgment on the first note, and the only question which it is necessary for us to decide is as to the correctness of the nonsuit on the second note, held merely as collateral security. The notarial act had as much effect' as the indorsement of the payee would have.

Article 3170 of the Revised Civil Code declares: “If the credit which has been given in pledge becomes due before it is redeemed by the person pawning it, the creditor, by virtue of the transfer which has been made to him, shall be justified in receiving the amount, and in taking-measures to recover it. When received, he must apply it to the payment of the debt due to himself, and restore the surplus, should there be any, to the person from whom he held it in pledge.”

In this instance, the note pledged being one of a series secured by the mortgage securing the principal debt, the sale to pay the principal debt, or the first of the two notes, must necessarily be made to pay the pledged note also, and if there be any surplus, the pledger is entitled thereto. If the defendants have any rights as between them and the pledgor, their vendor, they can be settled hereafter in a proper proceeding between proper parties, and their rights in this respect will be reserved. The plaintiff is entitled only to the principal debt, the note at two years for six hundred dollars, interest, and costs; but to get that it is necessary to sell the mortgaged property, and it must be sold to meet the notes unpaid. The defendants do not question the right of the plaintiff, a third holder before maturity, to be paid the amount thereof. They resist his right to a judgment for the amount of the two notes. We think he should have judgment only for the amount due him, as equities are setup, and will correct the judgment of nonsuit, so that he may have the right to recover from the proceeds of the property the whole amount of his claim in case it should not sell for enough to extinguish both notes. In any contingency, he must recover the whole amount of his claim. '

It is therefore ordered that the judgment of nonsuit on the second note be reversed, and that plaintiff’s right to be paid out of the proceeds of the mortgaged property, when sold, the whole amount of his claim be enforced, and that the rights of the defendants to the surplus, if any, for equities, be reserved, costs of appeal to be paid by appellees.

Rehearing refused.


text:
    No. 4728.
    Dave C. Johnson vs. La Variété Association.
    At the time tlic plaintiff became a stockholder in said corporation, in January, 1871, the club existed, with the exclusivo rights and privileges of which ho complains, and he attended the various meetings of the stockholders thereafter, especially that of May 2, 1872, at which he voted for the amendment of the charter increasing the shares to fifteen hundred dollars; and, furthermore, in conformity to the rules of the club, he made formal application to become a member of said club, to the formation and action of which he now objects, but admission was refused. He must be hold to have purchased with reference to the rules and conditions existing at the time by the charter and by-laws, and he is hound by the action of the club upon his application for membership.
    Plaintiff is not denied any rights to which he is entitled as stockholder. The. dis-1 tinctions of which ho complains wore established by the charter, and he does not show any violation of the provisions of the charter and by-laws to his prejudice. Hence, he has not shown any legal ground for the injunction obtained.
    APPEAL from tlie Superior District Court, parish of Orleans. Emo-kins, J.

      diaries S. Rice & Whitaker, for plaintiff and appellee.

      Breaux, Benner & Hall, for defendant and appellant.
   Howell, J.

The plaintiff alleges that he is the owner of one share of the capital stock in “ La Varióte Association,” which entitles him to all the rights and privileges of every other stockholder; but that a majority of the stockholders have formed within said association an organization or club, and have, as stockholders granted unto themselves certain pretended exclusive rights and privileges, and have declared that the stockholders in said association who are not likewise members of said club shall not enjoy said rights and privileges, among which are the “exclusive right of admission to that part of the Varieties Theatre known as the ‘ elub-rooxn and stockholders’ seats and passages leading thereto;’ ” and the sole right allowed to stockholders not members of said club is that of sitting in the public auditorium of said theatre, in any seat not otherwise occupied during any performance, from which seat he may be removed by a purchaser of a ticket for such seat; that for these exclusive rights and use the association receives no compensation; that the said club assumes to itself the right to determine who shall become members thereof, and has denied to plaintiff and others such membership and access to and use of the club-room, stockholders’seats, and the passages leading thereto; and that he demanded the said rights and privileges, or that said association purchase from him his stock at par value (fifteen hundred dollars), both of which were refused. He prayed for and obtained an injunction restraining the said association, its officers, and members from obstructing him in the enjoyment of said rights and privileges.

The defense is that plaintiff subscribed to said stock under the terms and conditions of the charter of said association; that he has been refused none of the privileges granted by said charter to any stockholder of said association, as such, and there is a prayer for damages.

Judgment was rendered perpetuating the injunction, and defendants appealed.

• At the time the plaintiff became a stockholder in said corporation (in January, 1871,) the “ club ” existed with the exclusive rights and privileges of which he complains; and he attended the various meetings of the stockholders thereafter, especially that of May 2, 1872, at which he voted for the amendment of the charter increasing the shares to fifteen hundred dollars. And, furthermore, in conformity to the rules of the club, he made formal application to become a member of said club, but admission was refused. He must be held to have purchased with reference to the rules and conditions existing at the timó by the charter and by-laws, and he is bound by the action of the club upon his application for momoership. Ho is not denied any rights to which he is entitled as stockholder. The distinctions of which he complains were established by the charter, and he does not show any violation of the provisions of the charter and by-laws to his prejudice. We can not see that he has shown any legal ground for the injunction obtained.

It is therefore ordered that the judgment appealed from be reversed, and that the injunction be dissolved and plaintiff’s suit dismissed with costs in both courts.

Rehearing refused.

Mr. Justice Morgan took no part in this case.


author: Wyly, J.

text:
    No. 6029.
    City of New Orleans vs. City Hotel and R. S. Morse and J. E. Zunts.
    By aot No. 41 of 1870 it was provided “ that all warrants, elioelcs, or orders issued, or that may hereafter be issued, signed, and approved as aforosaid, for the supplies and expenses of said Board of Police, shall 'be and are. hereby made receivable for all parish and municipal licenses and taxes and debts due or to become due to the parishes of Orleans, Jefferson, and St. Bernard; provided the aggregate of said warrants, checks, or orders so received in each current year shall not exceed the amount of the apportionment made by the Board of Metropolitan Police Commissioners upon said parishes or cities for that year.”
    This clause of the law was indorsed on the back of each of the warrants issued by the Board of Metropolitan Police Commissioners. It doubtless enhanced their value, and induced defendants to purchase the ones they tendered in payment of their city taxes.
    Act No. 83 of 1874, passed subseauent to the issue of the warrants in question, limiting their reeeivability for taxes to years anterior to the first of January, 1874, and prohibiting said'warrants from being received for taxes due thereafter, is unconstitutional and void, because impairing the obligations of a contract.
    There is nothing in the record showing that the aggregate of the warrants receivable for taxes for the current year exceeded or did not exceed the amount of the apportionment made by the Board of Police Commissioners for that year. If it was in excess of that apportionment it was in the power of the plaintiff to show it, because no one can know so well as the city of New Orleans how many warrants it has received during the current year and whether it exceeds the amount of apportionment aforesaid.
    As to the power of the General Assembly to make warrants issued in evidence of oxponses for policing the city receivable for taxes duo the city, there can be no doubt.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Samuel P. Blanc, Assistant City Attorney, for plaintiff and .appellee.

      J. TV. Thomas and A. C. Leiois, for defendants and appellants.
   Wyly, J.

In answer to the demand of the plaintiff for taxes for 1875, •amounting to §4375, the defendants tendered and filed in court Metropolitan Police warrants issued during the fiscal years of 1873 and 1874 to the full amount of said demand, notwithstanding which the court gave judgment for plaintiff as prayed for, and defendants appeal.

We think the court erred. By act No. 41 of 1870 it was provided that all warrants, checks, or orders issued, or that may hereafter be issued, -signed, and approved as aforesaid, for the supplies and expenses of said ■board of police, shall be and are hereby made receivable for-all parish and municipal licenses and taxes, and debts due or to become due to the {parishes of Orleans, Jefferson, and St. Bernard, and the cities- of New Orleans, Jefferson, and Carrollton, provided the aggregate of said, warrants, checks, or orders so received in each current year shall not exceed ’the amount of the apportionment made by the Board of Metropolitan Police Commissioners upon said parishes or cities for that year.”

And this clause of the law was indorsed on the back of each of the warrants issued by the Board of Metropolitan Police Commissioners; it •doubtless enhanced their value and induced defendants to purchase the ones they tendered in payment of their city taxes. It is contended, however, that act No. 33 of 1874, passed subsequent to the issue of the warrants in question, limited their roceivability for taxes to years anterior to the first of January, 1874, and prohibited said warrants from being received for taxes due thereafter. To this the answer is that said clause of said act of 1874 is void, because it impairs the obligations of a contract, and the cases of Farman vs. Nichol, 8 Wallace, 44, and Woodruff vs. Trapnall, 10 Howard, 206, are cited in support of the position, and they are conclusive of the question..

Plaintiff also contends that the defendants can not require it to receive the warrants for taxes, because they have not shown that the aggregate of such warrants received by it for such current year does not exceed the amount of the apportionment made by the Board of Police Commissioners upon it for that year. Upon this point there is no evidence in the record. If such bo the case, it was in the power of plaintiff to show it, because no one can know so well as the city of New Orleans how many warrants it has received during the current year, and whether the aggregate exceeds the amount of the apportionment made by the Board of Metropolitan Police Commissioners upon said city for that year. As to the power of the General Assembly to mako warrants issued in evidence of expenses for policing the city receivable for taxes due the city, there can be no doubt.

It is therefore ordered that the judgment herein be annulled, and that plaintiff’s demand be rejected, defendants paying costs incurred prior to the tender of the warrants, and plaintiff paying all costs accruing thereafter in both courts.

Rehearing refused.


text:
    Nos. 4836 and 4895.
    Andrew Parle vs. Mrs. Jane D’Arcy. Same vs. Same (Consolidated).
    There is no servitude oi view existing in favor of the lot owned by plaintiff, and the defendant evidently had the right to build a fence as high as she pleased on her own lot.
    APPEAL from the Fourth District Court, parish of Orleans. Lynch, J.

      Richard Shackelford, for plaintiff and appellee.

      Cotton &. Levy, for defendant and appellant.
   Wyly, J.

Defendant appeals from the judgment for five hundred dollars which plaintiff recovered against her for building a fence eighteen or twenty feet high on her own lot on Derbigny street, on the ground that said fence impaired the value of plaintiff’s lot adjoining it by obstructing the light and the breeze.

There is no servitude of view existing in favor of the lot owned by plaintiff. And defendant evidently had the right to build a fence as high as she pleased on her own lot. The reconventional demand is unfounded.

It is therefore ordered that the judgment herein be annulled, and that plaintiff’s demand bo rejected with costs of both courts.


text:
    No. 6201.
    State of Louisiana vs. David King.
    In accordance with preceding decisions given by this court in similar cases coming: up from the same court nana, the assignment of error that the record in this instance fails to show that the jury who tried the accused was sworn, must be held as good.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Bouge. Dewing, J.

      Á. E. Bead, District Attorney, and A. P. Field, Attorney General, for plaintiff and appellee.

      G. A. Griffith and J. 0. Fuqua, for defendant and appellant.
   Howell, J.

The defendant has appealed from a judgment sentencing him to be hung, and he assigns as error that the record of conviction fails to show that the jury who tried him was sworn.

This ground has just been held to be good in the cases of State vs. Phillips and Reid and State vs. Elijah Douglass, from the same court.

For the reasons in the two cases above mentioned, it is ordered that the judgment appealed from be reversed, and the case remanded for a new trial according to law. .


text:
    No. 6077.
    State of Louisiana vs. Elijah Douglass.
    The assignment of error that the record fails to show that the jury who tried tlio ease was sworn before the trial must be held good. This material fact can not be supplied in a criminal case by the presumption of omnia rite acta, but should appear on the record itself.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Bouge. Dewing, J. Criminal case.

      Alvan E. Bead, District Attorney, and A. P. Field, Attorney General, for plaintiff and appellee.

      George A. Griffith, for defendant and appellant.
   Howell, J.

The defendant has appealed from a judgment sentencing him to imprisonment in the Penitentiary for eighteen months for an assault by willfully shooting at one Anthony James, and assigns as crtor, among others, that the record fails to show that the jury who tried the ease was sworn before the trial. '

In the case of State vs. Gates, 9 An. 94, this court said : “ We think the record of conviction is defective, in not showing that the jurors who tried the issue were not sworn. The original entry on the minutes enumerates the jury, but does not state that they were sworn, and this material fact can not be supplied in a criminal ease by the presumption of omnia rite acta, but should appear on the record itself.” Beale vs. Campbell, 1 How. Miss. 24; Irwin vs. Jones, ibid, 494; 2 Blackford’s Reports, p. 272. See, also, the forms of records of conviction at the assizes, to bo found in the appendix to the fourth Black. Com., in each of which, after the recital of the names of the jury, is added : ‘ Who, being elected, tried, ánd sworn,’ etc. Also, Bishop on Crim. Pros., p. 927 (sec. 927); 2 Texas R., p. 280; 10 Ohio R., p. 575. Upon these authorities, and the fact that the State has not applied to correct the record, we must hold the assignment good.

It is therefore ordered that the judgment of the district court be reversed, and the case remanded for a new trial according to law.

Mr. Chief Justice Ludeling and Mr. Justice Wyly dissent for reasons in No. 6060.


text:
    No. 3901.
    Thomas B. Lee vs. City of New Orleans.
    The plaintiff is liable for the proportion of taxes on the improvements made by him on the ground ho has leased.
    APPEAL from the Sixth District Court, parish of Orleans. Cooley, J.

      Hiram J. Grover, for plaintiff and appellant.

      Samuel P. Blanc, Assistant City Attorney, for defendant and appellee.
   Howell, J.

The city of New Orleans having judgment against the plaintiff for §832, for taxes of 1869 on certain property, issued execution and caused the said property to bo seized. Whereupon plaintiff enjoined, on the ground that the property did not belong to' him, but was leased by him for a term of years from the Female Orphan Asylum and was exempt from all taxation, and ho prayed that it be so declared.

The city answered asking for a dissolution of the injunction with damages, and, reconvening, asked judgment for the proportion of taxes on the improvements erected by plaintiff on the ground leased by him.

Judgment was rendered dissolving the injunction, and plaintiff appealed.

On the trial'below evidence was introduced showing the value oí the ■said improvements as on the tax-roll, and the counsel for the city contends that the case is similar to that of City vs. Russ, No. 5055 in this •court, in which the tax on such improvements was sustained.

Under the pleadings and evidence in the record this position is correct. 'The proportion due is $356 57.

It is therefore ordered that the judgment appealed from be reversed, ■and .that the city of New Orleans recover on the reconventional demand herein $356 57 as taxes for 1869 on the improvements erected by plaintiff on the property described in the petition, with ñve per cent from the first of September, 1870, three dollars' costs of advertising, and costs of ¡lower court, with privilege accorded by law; costs of appeal to be paid ■by the city.


author: Ludeling, C. J.

text:
    No. 6232.
    In the Matter of the Estate of F. Norbert Marionneaux. Opposition of John A. Dardenne.
    Tho agreement made by the tutrix before she qualified, by which she practically gave away a portion of the property of tho minor, was null. It makes a part of the legislation and the policy of all those nations whoso laws are derived from the.same source as ours to stamp as null and void the alienation of the property of persons under age, when the forms prescribed by law for their protection have not been pursued.
    "Why any family meeting should suppose that it was to the advantage of the minor to reduce from nine thousand to three thousand dollars a debt which was secured by a mortgiigo and vendor’s privilege on property shown to have been worth at least live thousand dollars cash, it is not easy to imagine. But, whatever may have been their motive for tho advice, the tutrix did not act on it; on the contrary, she caused another family meeting to be convoked, who advised against the act.
    The question whether the second family meeting had authority or not to revise tho action of the first one is immaterial. If conceded that it could not, it is not perceived how that benefits the opponent.
    If tho probate court in its discretion saw fit to appoint a second family meeting to give tlioir advice touching the interests of the minor, it was certainly competent for the family meeting to do so without reference to what had been d me by any former family meetings; and, on the application of tho tutrix to have the deliberations of the last family meeting confirmed, the court could confirm or reject it as in its judgment was proper. The opposition of John A. Dardenne should have been rejected.
    APPEAL from the Parish Court, parish of Iberville. Cole, J.

      George Waile,% for the succession, appellant.

      Barreno & Pope, for Dardenne, ■opponent and appellee.
   Ludeling, C. J.

In September, 1874, Mrs. Marionneaux, the widow of P. Norbert Marionneaux, signed an agreement whereby she consented to release John A. Dardenne from paying two thirds of a note for nine thousand dollars, which he had executed in favor of said Norbert Marion-neaux before his death for the price of a plantation. The'said deceased left a minor child as sole heir to his estate. The said agreement was signed by Mrs. Marionneaux before she had qualified as natural tutrix of her child. After she had been confirmed and/qualified she applied to the probate judge to appoint a family meeting to advise touching the interest of the mmor in relation to the agreement to release Dardenne from the payment of two thirds of his note. The family meeting was convoked, and they advised that the said agreement was for the advantage of the minor. The proceedings of this family meeting were not confirmed by the court, but, instead of praying for the homologation of the proceedings of said family meeting, the tutrix prayed for another family meeting to give their advice in regard to the business. The second family meeting advised that it was not for the interest of the minor that the agreement should be made. The tutrix then presented the proceedings of this family meeting to the court for homologation, when Dar-denne, the debtor, opposed the homologation of the proceedings of the second family meeting, and prayed that those of the first family meeting be homologated, which was done by the court a qua.

The agreement made by the tutrix before she qualified, by which she practically gave away a portion of the property of the minor, was null. “It makes a part of the legislation and the policy of all those nations whose laws are derived from the same source as ours to stamp as null and void the alienation of the property of persons under age, when the forms prescribed by law for their protection have not been pursued.” 8 M. 626; 11 R. 504; 12 R. 636; 20 An. 64.

Why any family meeting should suppose that it was to the advantage of the minor to reduce from nine thousand dollars to three thousand dollars this debt, which was secured by a mortgage and vendor’s privilege on property shown to have been worth at least five thousand dollars in cash, it is not easy to imagine. But, whatever may have been their motive for the advice, the tutrix did not act on it, but, on the contrary, she caused another family meeting to be convoked, who advised against the act. It is contended that the second family meeting had no authority to revise the action of the first family meeting. If this be conceded, it is not perceived how that benefits the opponent. If the probate court, in its discretion, saw fit to appoint a second family meeting to give their advice touching the interests of the minor, it was certainly competent for the family meeting to do so, without reference to what had been done by any former family meetings; and, on the application of the tutrix to have the deliberations of the last family meeting confirmed, the court could confirm or reject it as in its judgment was proper.

After a careful examination of the evidence, we believe the second family meeting properly refused to advise the completion of the agreement. We also think that the opposition of John A. Dardenne should have been rejected.

It is therefore ordered and adjudged that the judgment of the lower court be reversed, that the proceedings of the second family meeting be confirmed with costs against opponent.

Rehearing refused.


text:
    No. 6251.
    Charles Schmidt vs. City of New Orleans.
    In January, 1870, the plaintiff took a rule on the city of New Orleans to reduce the assessment upon which a judgment had been obtained by the latter against the former, in June, 1875, for the taxes of that year. This is not the mode to reviso, amend, or annul a judgment or to correct an assessment.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      H H. Walsh, for plaintiff- and appellee.

      Samuel P. Blanc, for defendant and appellant.
   Howell, J.

In June, 1875, the city of New Orleans obtained judgment against the plaintiff for the taxes of that year, and in January, 1876, the latter took a rule on the former to reduce the assessment upon which the said judgment was based. The rule was made absolute, and the city ■appealed.

This is not the mode to revise, amend, or to annul a judgment or to ■correct an assessment.

It is therefore ordered that the judgment appealed from herein be reversed, and the rule taken by plaintiff be dismissed with costs.


author: Taliaferro, J.

text:
    No. 6233.
    Wade H. Gilbert vs. P. O. Hébert, Executor.
    Tkoeaseof Robert 0. Hebert et al. vs. Jackson, sheriff, et al., No. 0221, which precedes this one, disposes of it on the same grounds.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. Posey, J.

      Henry Duffel, Charles 0. Lauve, Samuel Mattheius, and T. Hamilton Bills, for plaintiff and appellee.

      George Wailes, for Mary Letitia Hébert, appellant.
   Taliaferro, J.

This is an appeal from a judgment rendered by the district court of the parish of Iberville in favor of the plaintiff on the confession of P. 0. Hebert, acting as executor of the Widow Harriet L. Yaughn, deceased. The appeal -was taken by Mary Letitia Hébert, an heir of and one of the universal legatees of Harriet L. Yaughn, alleging-an interest in the estate of Mrs. Yaughn to the extent of more than five hundred dollars.

In the case of Robert O. Hébert et al. vs. Jackson, sheriff, et al., No. 6221, just decided by this court, the judgment above referred to was attacked as null and void for various reasons. On appeal to this court tho judgment of the lower court was affirmed and the judgment appealed from declared to be null and void. That decree disposes of the litigation in this case of Wade H. Gilbert vs. Paul O. Hébert, executor, No. 6233.

For the reasons assigned in the former case (No. 6221) it is ordered that the judgment rendered by the lower court in this case (6233) be annulled, avoided, and reversed, the plaintiff paying costs in both courts.

Rehearing refused.

Wvbv, J. I dissent in this case.


text:
    No. 6188.
    Mrs. Bertha Whiteman vs. G. LeBlanc, Sheriff, et al.
    Tlic question is whether the creditor ol the community can seize tho buildings and other improvements placed by tho community on a plantation, tho separate-property ol the wile, and sell the same previous to the dissolution of tho community, separate and apart from the land whereon they are situated. The judge a quo erred in deciding affirmatively.
    The buildings and improvements attached to tho plantation constitute a part ol the immovable, and can not be sold separately.
    Where the separate property of the wile has boen increased or improved during marriage, the husband or his heirs “ shall bo entitled to the rowai-d ol one-half oí tho valued tho ineioaso or the ameliorations, if it be proved that the increase or ameliorations bo the result ol the common labor, expenses, or industry.” It. C. 2108.
    until the dissolution' ol the community the wife owes nothing for tho augmentation of the value of her hereditary property by the common labor, expenses, or industry; and at tho dissolution she will not owe for the cost of each piece of the improvements, but only for tho augmentation of the value of the hereditary property resulting from the improvements created during marriage.
    As the buildings seized by defendants do not belong to the community, nor the cost thereof, but to plaintiff, tho owner of the soil, subject to tho payment at the dissolution of the community of the enhanced value of her hereditary property by reason of said improvements erected thereon by the common labor, expenses, or industry, the court a qu% erred in dissolving the injunction sued out by plaintiff. Her property can not bo sold for the payment of the debts of her husband or the community.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge. Dewing, J.

      A. S. Herron and Edward Phillips, for plaintiff and appellant.

      Thomas B.- Dupre and C. C.'Bird, for defendants and appellees.
   Wyly, J.

In this caso tho question is, can a creditor of the community seize the buildings and other improvements placed by the community o.n the plantation, the separate property oí the wife, and sell the same previous to a dissolution of the community, separate and apart from the land whereon they are situated ? The court below hold that lie could, and plaintiff appeals.

We think the court erred.

The buildings and improvements attached to the plantation constitute a part of the immovable, and can not be sold separately. Revised Code, 464, 504; 21 An. 324; 12 An. 227; 23 An. 749; 25 An. 434; 26 An. 349.

Where the separate property of the wife has been increased or improved during marriage, the husband or his heirs “ shall be entitled to the reward of one half of the value of the increase or the ameliorations, if it be proved that the increase or ameliorations bo the result of the common labor, expenses, or industry.” Revised Code, 2408.

“ It can not be controverted that under the spirit of this article buildings and other improvements erected by the spouses during the marriage on the hereditary property of' either belong necessarily at the dissolution of the community to the owner of- the soil, in this sense, that ho may keep them, and that he owes to the other spouse the recompense of one half of the value of the increase or ameliorations,, to bo ascertained by an estimation of the value which such improvements have added to the property.” Waggaman vs. Zachrie, 8 R. 182; 4 Rob. 279; 6 An. 634.

“ Whatever right one of the spouses may have to claim a recompense from the other for funds of the community employed for the separate benefit and advantage of such spouse, either in the payment of his or her debts, contracted anterior to the marriage, or in the increase and improvement of the hereditary property of such spouse, this right can only be exercised at the dissolution of the community.” 10 An. 308.

Until the dissolution of the community, the wife owes nothing for the augmentation of the value of her hereditary property by the common labor, expenses, or industry; and at the dissolution she will not owe for the cost of each piece of the improvements, but only for the augmentation of the value of the hereditary property resulting from the improvements erected during marriage. • •

As the buildings seized by defendants do not belong to the community, nor the cost thereof, but.to plaintiff, the owner of the soil, subject to the payment at the dissolution of the community of the enhanced value of her hereditary property by reason of said improvements erected thereon by the common labor, expenses, or industry, we think the court erred in dissolving the injunction sued out by plaintiff.. Her property can not be sold for the payment of the debts of her husband or the community. •,

The case of Domingues vs. Lee, 17 La. 295, which recognizes the right of a community creditor to sell the buildings erected on the hereditary property of the wife, during the marriage, separate from the soil, is not supported by the case of Fricque vs. Hopkins, 4 N. S., 212, to which it 'refers; nor does it accord with the textual provisions of the articles of the Code to which we have referred, and the subsequent decisions of this •court, especially the decision of Kelly vs. Robertson, 10 An. 308.

All that which becomes united to or incorporated with the property belongs to the owner of such property; and the ownership of the soil carries with it the ownership of all that is above and under it. Revised Code, articles 504, 505.

It is therefore ordered that the judgment herein bo annulled, and it is decreed that the injunction herein be perpetuated with cc-sts of both courts.


author: "Wyly, J.

text:
    No. 4729.
    Nathaniel E. Bailey vs. Mrs. Sarah Quick. Miss Emma Quick, Intervenor.
    Tlio inquiry in tliis ease is confined to the controversy between the intervonor and plaintiff. As the intervenor was in no sense a sub-tenant, the articles of furniture which she claimed in the leased promises were liable to seizure by the lessor.
    As to the furniture in the room No. 90 Baronno street, which was removed four days before the seizure from the leased premises, it belonged to the intervenor, and, being the property of a third person and not contained in the leased premises at the time of the seizure, it was not subject to the lessor’s privilege.
    As all the property provisionally seized had been released on bond for $439, the court a qua erred'in permitting evidence to go to the jury as to the value of the furniture, and the jury manifestly erred in rendering a verdict against plaintiff fo r this furniture or the value thereof, which is fixed at $1551 40.
    As the intervenor insists in her brief that the sheriff did not take possession of the furniture in room No. 90 Baronno street or the value thereof; “that he went through all the forms except the most essential form of talcing possessionthat she held possession of “ the room and of hor own property in it, no one entering the room while it was there except by her consent,” it is to bo concluded that there was no seizure of this property, and, conseauonlly, there is no foundation for the claim for damages.
    APPEAL from the Fourth District Court, parish o£ Orleans. Lynch, J. Jury trial.

      T. Gilmore & Sons, for plaintiff and appellant.

      Alex. T. Steele, for defendant and appellee.

      B. King Cutter, for intervenor and third opponent, appellee.
   "Wyly, J.

Plaintiff, the lessor of the premises No. 240 Canal street, sued the defendant for $230, the amount of rent duo for the months of June, July, and August, 1872, and lie also obtained a writ of provisional seizure, and the sheriff seized thereunder the furniture in said premises, and also a quantity of furniture in building No. 90 Baronno street, which had been removed four days before from said leased premises on Canal street.

Miss Emma Quick, the daughter of defendant, claiming- tí) be ¿ho. owner of this furniture in a room at No. 90 Baronno street, which she valued at some thirteen hundred dollars, and claiming also to be the owner of certain articles of furniture in the .leased premises, described in the petition, which she valued at $518, intervened and enjoined the seizure thereof and prayed.for judgment for said furniture or the value thereof, $1808 50, and two hundred and fifty dollars damages. Subsequently the property provisionally seized was released on bond for four hundred and sixty dollars.

The cause was submitted to a jury, which rendered a verdict in favor of plaintiff against defendant for two hundred and thirty dollars, and in favor of intervenor, Miss Emma Quick, against plaintiff for the restoration of said furniture claimed by her, and in default of the surrender of said furniture to her, the plaintiff to pay $1554 40, also the further sum of two hundred and fifty dollars damages; and on this verdict judgment -was rendered by the court.

Plaintiff appealed from the judgment so far as the same is in favor of Miss Emma Quick on the intervention filed by her. Defendant, Mrs. Sarah Quick, did not appeal.

As no appeal was taken from the judgment against defendant for the amount of rent due by her, the argument which she presents in the elaborate brief filed by her counsel will not be noticed. That judgment is final and can not nowr be inquired into.

The inquiry is confined to the controversy between the intervenor and plaintiff.

As the intervenor was in no sense a sub-tenant, the articles of furniture which she claimed in the leased premises were liable to seizure by the lessor.

As to the furniture in the room No. 90 Baronno street, which was removed four days before the seizure from the leased premises, we are satisfied it belonged to the intervenor, and, being the property of a third person and not contained in the leased premises at the time of the seizure, it was not subject to the lessor’s privilege. Merrick, Race & Foster vs. LaHache, 27 An. 87. As all the property provisionally seized had been released on bond for four hundred and sixty dollars, the court erred in permitting evidence to go to the jury as to the value of this furniture, and the jury manifestly erred in rendering a verdict against plaintiff for this furniture or the value thereof, which it fixed at $1554 40. As the intervenor insists in her brief that the sheriff did not take possession of the furniture, that he went through all the forms except the most essential form of taking x>ossessio)>,” that she held possession of “ the room and of her own property in it, no one entering the room while it was there except by her consent,” wo conclude there was no seizure of this property, and consequently there is no foundation for the claim for damages.

It is therefore ordered that the judgment herein in favor of tho inter-venor and against plaintiff ho annulled, and that intervenor be decreed the owner of tho furniture seized in building No. 90 Baronno street, and that the intervention and injunction as to it be maintained, with costs of the. court below. It is further ordered that tho intervenor pay costs of this appeal.

Rehearing refused.


author: Ltjdeling, C. J.

text:
    No. 6139.
    The State of Louisiana vs. Michael DeLaney.
    Tlio accused was charged with assaulting and stabbing with a dangerous weapon, to commit murder. The jurisdiction of the Superior Criminal Court, in which the proceedings wore had. is limited to offenses for which tho punishment may bo death or imprisonment at hard labor in tho Penitentiary. It is manifest that the court had jurisdiction to try the prisoner under the chargo preferred in tho indictment, and this jurisdiction could not bo ousted by the verdict of the jury, which was, “ guilty of assault with a dangerous weapon, and inflicting wounds ■ loss than mayhem.” Having had jurisdiction of the ease, the court had necessarily tho power to render tho judgment on the verdict found.
    The verdict is responsivo to tho indictment. In the greater offense the intent is to kill; in the smaller offense the intent to kill is wanting. The offense for which the accused is convicted is included in tho one charged in said indictment, when an accusation includes an offense of an inferior degree, tho jury may discharge the defendant of the higher crime and convict him of tho less atrocious, if they And a verdict of guilty of tho inferior offense and tako no notice of tho higher.
    APPEAL from tho Superior Criminal Court, parish of Orleans. Steele, J.

      A. P. Field, Attorney General, for plaintiff and appellee.

      James P. O’Reilly, for defendant and appellant.
   Ltjdeling, C. J.

The accused was charged with assaulting and stabbing with a dangerous weapon with the intent to commit murder. The jury returned the verdict following: “Guilty of assault with a dangerous weapon, and inflicting wounds less than mayhem.”

A motion in arrest of judgment was made, on the grounds that the verdict of the jury is not responsive to the indictment, and is not within the jurisdiction of the court, which was overruled.

The jurisdiction of the Superior Criminal Court, in which the proceedings were had, is limited to offenses for which the punishment may bo death or imprisonment at hard labor in the Penitentiary. It is manifest that the court had jurisdiction to try the prisoner under the charge preferred in the indictment, and this jurisdiction could not be ousted by the verdict of the jury. Having had jurisdiction to try the case, the court liad, necessarily, the power to render the judgment on the verdict found. And it would seem the verdict is responsive to the indictment. In the indictment the accused is charged with assaulting and inflicting a wound with intent to murder; by the verdict he is convicted of assaulting.and inflicting a wound, without the intent charged. In the greater offense the intent is to kill; in the smaller offense the intent to kill is wanting. The offense for which he is convicted is included in the one charged in the indictment. Mr. Wharton says: “Generally speaking, whore an accusation includes an offense of an inferior degree, tho jury may discharge the defendant of the high crime and convict him of the less atrocious, and in such ease it is sufficient if they find a verdict of guilty of the inferior offense and take no notice of the higher.” Wharton’s Crim. Law, section 384; Chitty’s Crim. Law, 638; Bishop’s Crim. Law, sections 885, 887, 888.

It is therefore ordered that the judgment of the lower court bo affirmed with costs of appeal.


text:
    No. 4783.
    P. M. Kelly vs. John B. Lafitte.
    Tlio court a qua erred in dismissing; tlio suit on tho exception that the petition contains no cause of action..
    If defendant, without probable cause, maliciously made tho affidavit containing the libelous matter and filed it in a suit to which he was not a party, and plaintiff has been damaged thereby in his business and in his reputation as a good citizen and an honorable man, the defendant, by whoso fault it happened, should repair the damage; and for the purposes of this trial tho allegations of plaintiff are taken to be true. '
    If the principle contended for by defendant, that no responsibility can result for libelous matter contained-in a paper filed in court, be roeognized.as correct, one desiring to blacken the character and destroy the business of another can do so with impunity by availing himself of tho right to file an affidavit in support of a motion for a new trial. Consequently the reputation of no man in this community would be safe.
    APPEAL from the Fourth District Court, parish of Orleaus. Lynch, J.

      Thomas J. Cooley, for plaintiff and appellant.

      Carleton Hunt and William H. Hunt, for defendant and appellee.
   Wyly, J.

Plaintiff appeals from the judgment dismissing, on the plea of no cause of action, Ms demand against the defendant for fifty thousand dollars damages for an alleged libel.

Plaintiff alleges that on the. trial of the suit of Chaffraix & Agar vs. Morton, Bliss & Co. he gave evidence as a witness, and the case was decided against Morton, Bliss & Co.; that in support of their motion for a new trial John B. Lafltte, a member of the firm of John B. Lafitte & Co., who were agents of Morton, Bliss & Co., made an affidavit, which was filed in- court and read on the trial of said motion, which contained the libelous matter complained of; that in said affidavit the said John B. Lafitte clearly and explicitly charged plaintiff with having sworn falsely, knowingly, in relation to facts material to the issue, and in effect that plaintiff was corruptly guilty of perjury, which is a criminal offense, punishable with imprisonment at hard labor in the Penitentiary. After" setting out the libelous words of the affidavit, plaintiff alleges that said charges in said affidavit are false and calumnious and injurious to his reputation and feelings, and have the effect of preventing him from getting employment ini his occupation as a sugar-broker, and have a tendency to alienate from him the respect and esteem of his fellow-citizens, which is above all price; that said charges were maliciously made and sworn to by said Lafitte without probable cause, and there was no legitimate reason for making said charges in the conduct of said suit.

We think the court erred in dismissing this suit on the exception the petition contains no cause of action.

If defendant without probable cause and maliciously made the affidavit containing the libelous matter, and filed it in a suit to which he was not a party, and plaintiff has been damaged thereby in his business and in his reputation as a good citizen and an honorable man, wo think the defendant, by whose fault it happened, should repair the damage. Revised Code, 2315, 231G, 2317. And for the purpose of this trial the allegations of plaintiff are taken to be true.

If the principle contended for by defendant, that no responsibility can result for libelous matter contained in a paper filed in court, be recognized as correct, one desiring to blacken the character and destroy the business of another can do so with impunity by availing himself of the right to file an affidavit in support of a motion for a new trial; consequently the reputation of no man will be safe in this community, and all responsibility under the articles of the Code referred to may bo easily evaded.

It is therefore ordered that the judgment herein be annulled, and that this cause be remanded for trial on the merits, appellee paying costs of appeal.


author: Taliaeebeo, J.

text:
    No. 6085.
    M. E. Burke, Tutrix, vs. Louis Tregre. Alphonse Miltenberger and Mrs. F. Halsey, Intervenors.

    Alphonse Miltenberger, one of the intervenors in this ease, sots forth that ho is bona fide owner and possessor of the property against which the plaintiff, in her name and on behalf of her minor chi] dren, is seeking to enforce her claims; he sets forth that he acquired it free from the pretended mortgage of the plaintiff ■ by purchase at a public sale of the said property made by the united States Marshal on the third of June, 1865, by virtue of an order of the united States Provisional Court, rendered at the suit of the intervenor to pay and satisfy a debt due to him and secured by mortgage on said property, executed on the twentieth of April, 1858, and he pleads in bar of the plaintiff’s action the prescription of one, three, and five years. The other intervenor, Mrs. Halsey, in whose favor the property was mortgaged by Miltenberger for the security of certain promissory notes of which she is the holder, avers that Miltenberger is the owner of the property, and joins him in resisting the claims of the plaintiff.
    The objection to secondary evidence to prove the proceedings in the Provisional Court of the united States is not well founded. The court a qua did not err in permitting it. The record contains abundant evidence of the loose and irregular manner in which the original papers of the said suit were kept in said court, nor are facts wanting to show the strong probability that in 1871, when the present suit was instituted, it would have been extremely difficult, if not impracticable, for the intervenors to obtain either the originals or an official copy thereof, the officers of the Provisional Court being functi officiis, and most, if not all of them, absent from the State. The effort to obtain the necessary documents would have been fruitless. >
    The sale to Miltenberger in 1865 ivas made by virtue of an order from a competent court to enforce a mortgage granted and recorded in 1858. Ten years had not elapsed; the mortgage was in full force and second in rank. Out of the proceeds the first mortgage, hold by the Bank of Louisiana, was paid, and Miltenberger was subrogated to the rights of the hoi dor thereof. The balance was applied to Miltenberger’s own mortgage — the mortgage of the plaintiff, of inferior rank, being therefore cut off.
    Besides, the plaintiffs action was brought on the nineteenth of March, 1871, to enforce her mortgage against the proporty which was sold under an order of the Provisional Court and adjudicated to Miltenberger on the thirteenth of June, 1865. The plaintiff’s demand in reeonvention to have the mortgage of Milten-berger annulled and to have her own doelared first in rank is prescribed by five years.
    APPEAL from the Fourth Judicial District Court, parish of St. John the Baptist. Flagg, J.

      Lacey & Butler, for plaintiff and appellee.

      8. 21. Bérault and Legendre & Boché, for Alphonse Miltenberger, inter-venor and appellant.

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

   Taliaeebeo, J.

The plaintiff in her own right and as tutrix of her minor children alleging that she is the holder of two several promissory notes, each for the sum of .153853 66, drawn payable to her order as tutrix by the defendant, dated twenty-fourth March, 1865, payable twelve months after date, and secured by mortgage on two tracts of land in the parish of St. John the Baptist, embracing a sugar plantation and various buildings and improvements thereon, instituted this action to enforce payment of her claims by a sale of the mortgaged property via ordinaria. The defendant answered by general denial, but seems to have been rather passive in the contest, which is waged almost entirely by and between the plaintiff and the intervenor, Miltenberger. The latter intervened in the case, setting forth that he is bona fide owner and possessor of the property against which the plaintiff is seeking to enforce her claims'; that he acquired it free from the pretended mortgage of the plaintiff by purchase at a public sale made of the property by the United States Marshal on the third of June, 1865, under and by virtue of an order of the United States Provisional Court rendered at the suit of intervenor to pay and satisfy a debt due him by the defendant Tregre, secured by mortgage executed on the twentieth of April, 1858. He pleads in bar of the plaintiff’s action the prescription of one, three, and five years ; the intorvenor, Halsey, alleging that he is the holder of ten notes of five thousand dollars each, -executed by A. Miltenberger on the twenty-fifth of March, 1872, to secure the payment of which he mortgaged the land and plantation now in controversy. This intervenor avers that Milten-berger is the owner of the property, and joins him in resisting the claims of the plaintiff.

The plaintiff answered the intervention of Miltenberger, denying the existence of the mortgage and order of sale alleged by him, and denying that there over was any such sale.

To the intervention of Halsey the plaintiff answers that the notes and mortgage lie declares upon are without validity ; that he has no legal or •equitable ownership in them ; that the mortgage to Miltenberger in 1858 never had any legal effect, never having been inscribed or reinscribcd according to law.

Judgment was rendered in favor of the plaintiff for the amount claimed by her, with recognition of first mortgage on the “ Star Plantation,” and ordering the mortgaged premises to be sold to satisfy the plaintiff’s claim ; that tlie interventions bo dismissed at costs of inter-venors ; that they be enjoined from setting up any right to the mortgaged property on account of the judgment of the Provisional Court on the mortgages of 1853 and 1858.

The intervenors havé appealed.

This suit in many of its features resembles very closely the case of Thomas J. Burke vs. Tregre, twenty-second Annual, page 629, the judgment in which case was, on appeal to the Supreme Court of the United States, affirmed. 19 Wallace, p. 519.

In that case the plaintiff, Thomas J. Burke, holder of two notes of Louis Tregre, dated the twenty-fourth of March, 1865, and secured by mortgage on the same property mortgaged by himlto the plaintiff in the case we have now under consideration, proceeded via execution against the property mortgaged, when, as in the case at bar, he was met by an intervention filed by A. Miltenberger, claiming to bo the owner of the property seized, by virtue of a sale o'f the same made in June, 1865, under an order of the Provisional Court of the United States for the State of Louisiana granted by said court or by special permit of the military ■commander of the district. The proceedings then taken by the said in-tervenor ■wore predicated upon the same mortgage upon which ho founded his proceedings in intervention in the present case ; namely,- the mortgage executed by Louis Tregre in favor of A. Miltenborger & Co. on the twentieth of April, 1858. In that case, the one in which Thomas J. Burke as plaintiff caused the same property to bo seized on the twenty-third of July, 1868, the said' Burke set up against the intervention of Miltenborger—

First — That the Provisional Court of the United States for Louisiana had no legal existence, not having been established by any constitutional or legal authority.

Second — If legally constituted, the said court ceased to exist before the -date of its judgment, the seventeenth of April, 1865.

Third — That the copy of the judgment presented is not certified by the seal and proper officer of that court.

Fourth — The judgment on its face is null, because it does not appear to be an extract from tlie minutes of any court, or to have been rendered in open court, or to bo the act of any judge, not being signed by a judge.

Fifth and seventh grounds related to the absence of revenue stamps ; but these grounds were not insisted upon in the appellate court.

The sixth and eighth grounds were that the copy is incomplete as a judgment, because upon its face a petition, account, and act of mortgage ■are made part thereof and are not produced.

These various objections were held by this court to be without weight, and were accordingly overruled.

In the case now at bar the plaintiffs counsel urges other objections to the title of Miltenberger, growing out of an alleged incompleteness of the same in this, that there is wanting an adjudication and title deed ■emanating from the said Provisional Court; and, further, that such adjudication and transfer, if made, were made in violation of military orders and, therefore, void ; and, lastly, that there was no legal advertisement of the pretended Marshal’s sale.

There is an admission of counsel for plaintiff that some person pretending to act as deputy of the United States Provisional Marshal put up for sale at the court-house of the parish of St. John the Baptist, on the third of June, 1865, the “Star Plantation,” and-cried it to Milten-berger for twenty-seven thousand dollars ; that Messrs. Burke, Pollock, and Judge Bcrault were present, but neither of them was advised as to the authority of this person to act.

It is shown that Elfer, a witness, testified that ho was recorder of the parish of Orleans in. Juno, 1865; that ho had in his possession the original of the Marshal’s deod of the sale of the property described in said act, which deed is transcribed in book A, new series, of conveyances, folios 100,101,102, él seq.; and that he signed the registry in his official capacity. The witness recollected very well having seen the said deed, a certificate from the clerk of the United States Provisional Court that the act was recorded in the United States Provisional Court of Louisiana.

It is shown that & fieri facias was issued. Various facts are presented supported by circumstantial evidence that leave no reasonable doubt that the writ issued, and we conclude that there was a sale, adjudication, and title deed to Miltenberger. Next, as to the special permit. It is shown that by general orders issued on the sixteenth May, 1865, by the commander of the Department of the Gulf, sales of cultivated lands were prohibited and suspended until first of February, 1866; the object and purpose being to secure the payment of wages and other expenses incident to the cultivation of the soil. It is shown, likewise, that special permits were occasionally granted for sales of plantations by legal process.

There are various facts shown in this case that we think make it sufficiently clear that such a special permit was granted in this ease. Four or five witnesses testify in regard to this special permit. One of them» Torrey, the attorney of Miltenberger, swears that he obtained the permit subsequently to the general order No. 60, of May 16, 1865, and that he saw a copy of the order previous to the day of sale. Pollock, another witness, is positive that he had the permit in his possession, and that ho had it approved or indorsed by Captain McClure. This witness swears that this permit was granted between the sixteenth of May and the third of June, 1865, to effect a judicial salo of the property of Lotus Tregre, seized in the suit No. 525, entitled A. Miltenberger & Co. vs. Louis Tregre. The other witnesses speak of there being- such a permit. To this testimony the plaintiff objects, on the ground that it is secondary; that no effort was shown to obtain tho original permit or its equivalent, an official copy thereof, upon the pretended' author and custodian; that no publication of tho loss of the pretended order or special permit is shown to have been made, and no effort to recover it shown.

The judge a quo admitted the evidence, ruling that the objections went more to the effect than to tho admissibility of the testimony. . The plaintiff reserved a bill of exceptions. The testimony was properly admitted. The record contains abundant evidence of the loose, irregular manner in which the original papers of the suit No. 525 were kept; nor are facts wanting to show the strong probability that in 1871, when the present suit was instituted, it would have been extremely difficult, if not impracticable, for the intervenors to obtain either the original act or an official copy of it, tlio officers of tlio provisional court being fundi officiis, and most if not all of them absent from the State. Tho effort to obtain tho documents missing would have been fruitless.

There was then a legal, valid sale of the mortgaged property made under an order of a competent court. This sale was made in June, 1865. It was made under and by virtue of Miltenbergor’s mortgage, granted, by Tregrc and recorded in 1858. Ten years had not then elapsed; the mortgage was in full force and second in rank; and in applying the pro-, ceods of the sale there fell to tho claim of Miltenberger secured by this -mortgage, amounting to sixty thousand dollars, only tho sum of §2141 76, after deducting costs, taxes, etc. The property was adjudicated to Mil-tenberger at the price of twenty-seven thousand dollars; out of this was paid the oldest mortgage, that of the Bank of Louisiana, to wlicse rights the purchaser was subrogated, the sum of §24,858 24, leaving to be applied to his own mortgage tho above-stated amount of §2141 76. Tho mortgage of the plaintiff, of inferior rank, was therefore cut off, there being nothing loft to appropriate to it. This mortgage was granted by Tregrc on tho twenty-fourth of March, 1865, to tho plaintiff, and was recorded on tho fifteenth of April, 1865, near seven years after he executed tho mortgage in favor of Miltenberger. The plaintiffs action was brought on the nineteenth of March, 1871, to enforce her mortgage against the property which was sold under an order of tho Provisional Court, and adjudicated to Miltenberger on the third of June, 1865, and; which went-into his possession under that sale. The plaintiff’s demand in rcoonvention to have tho mortgage of Miltenberger and tho sale under it doclarcd null, and to have her mortgage declared to be first in rank, is prescribed by five years.

The intervenor’s exception to tho proceeding, and tlioir plea of prescription were well taken.

There are several bills of exceptions found in the record besides those wo have noticed, but it is unnecessary to pass upon them.

It is ordered that tho judgment appealed from be annulled, avoided, and reversed. It is further ordered that tho mortgage set up by the plaintiff in this suit bo and the samo is hereby decreed to be extinguished, and of no effect on tho property sold and purchased by Miltenberger as aforesaid; that tho recorder of mortgages of the parish of St. John tho Baptist be and he is hereby ordered to cancel from the records of Ms office the mortgage of the plaintiff granted on the twenty-fourth of March, 1865, by Louis Trogro, and that plaintiff be enjoined from seizing and selling the property in satisfaction of the said mortgage; the plaintiff to pay costs in both courts.

Rehearing refused.


author: Morgan, J. Howéll, J.

text:
    No. 5993.
    Mrs. Marie Emelia Thezan, Wife of E. Dumas, et al. vs. Joseph Thezan, Testamentary Executor, et al.
    'This suit was instituted by a married woman authorized and assisted by her lius- ' band. CiUtion of appeal was served on her. This was sufficient.
    •Joseph Thezan. one o£ tho defendants, was cited individually and as testamentary executor and as tutor. This was sufficient. There is no ground for a dismissal of the appeal.
    'The plaintiff has instituted this suit against her brother individually, and also as . testamentary executor of their father, as administrator of the succession of their mother, and as tutor of a minor heir.
    Third persons, creditors of tho succession of Sidney Thezan, deceased, have appealed from a judgment declaring certain property to belong to the community which existed between said Thezan and his predeceased wife, recognizing tho parties to this suit (two of full age and one a minor) to be the sole legitimate heirs of their mother, maintaining her in the possession and ownership of lior share of said community, ordering the defendant, as testamentary executor of his father, to account to them'for the revenues of said share, and condemning him in said capacity to pay to them (said heirs) a certain sum of money, with interest and mortgage and privilege for the restitution of the paraphernal funds of the said mother.
    Tho appellants, having become creditors of the husband after the dissolution of the community by the death of the wife, have no claim upon the share of the wife, but have an interest in seeing that tho property of tho husband, their debtor, is made available for their debts against- it. Any proceedings between the parties to this suit, touching the property of the wife only, can have no effect upon tho rights of said creditors upon tlio property of tho husband. As to them these parties have the right to demand and obtain possession of their mother’s property, but they, tho creditors, can properly contest any claim that the heirs of the mother may urge upon tho property of their father, and, although the judgment in this case may not be conclusivo against thorn, they have a right to have it revised so far as it may, in tlioir opinion, prejudice them'.
    It tlio property described in tho petition of plaintiff belonged to tlio community, tho husband as usufructuary was entitled to the revenues, and conseaucntly there is error in making the testamentary executor account to tlio heirs for tho same. As to what property constituted the community, this court has before it the inventory, which must be taken as sufficient for tho purposos of this suit between the heirs. The appellants have tho right to show in tho succession of tlioir debtor what property belongs to it; and, as to tho paraphernal rights allowed in the judgment appoaled from, this court does not think tho evidence sufficient, it not appearing in the record that the wife's claim, if proved, was properly recorded.
    from tho Second District Court, parish of Orleans. Tissot, J.

      A. Brieugne, for executor and appellee.

      J. Duvigneaud, for heirs and appellees.

      Charvel cC Dujilantier, Ilornor cD Benedict, and Charles Longue, for third parties, appellants.
   On Motion to Dismiss.

Morgan, J.

Appellees move to dismiss this appeal on the grounds —

Eirst — That appellants show no interest which entitles them to an appeal.

Second — That the proper parties have not been cited.

Eirst — Two of the appellants are judgment creditors of the succession of S. Tliezan, represented by Joseph Thezan, the defendant, and the other two have filed in this court their affidavits showing that they claim to bo creditors of the succession. The judgments appear in the record by virtue of a writ of certiorari.

Second — The suit was instituted by a married woman authorized and assisted by her husband. Citation of appeal was served on her. This was sufficient. 26 An. 541.

Joseph Thezan wás cited individually and as testamentary executor •and tutor. • This was sufficient.

Motion denied.

Ox THE MERITS.

Howéll, J.

Third persons, creditors of the succession of Sidney 'Thezan, deceased, have appealed from a judgment herein declaring certain property to belong to the community which existed between said Thezan and his predeceased wife; recognizing the parties to this suit (two of full ago and one a minor) to bo the sole legitimate heirs of their mother, maintaining them in the possession and ownership of her share of said community; ordering- the defendant, as testamentary executor of his father, to account to them for the moneys of said share, and condemning him, in said capacity, to pay to those said heirs §3223 66, with interest, and mortgage and privilege for the restitution of the parapher-nal funds of their said mother.

' The facts are: Sidney Thezan and Rcselia Deslonde were married in T850, having entered into a marriage contract establishing a community, specifying the property of the spouses, and regulating their marital rights. The wife died in 1868, leaving three children, issue of said marriage. In 1874 the husband died, leaving a will appointing his son, of age, the defendant herein, his executor. This son, after qualifying as ex■ecutor, obtained letters of administration on his mother’s estate, and caused inventories to bo made of each succession. He was, also, appointed tutor of the minor, the other heir, the plaintiff, having married. These two major heirs renounced the succession of their father. The plaintiff then instituted this suit against her brother, individual^, as testamentary executor of their father, administrator of the succession of their mother, and tutor of the minor, claiming what was granted in the judgment appealed from.

The creditors urge that although the defendant was cited in his quadruple capacity, ho appeared only as testamentary executor; that the plaintiff was without right or authority to ask for judgment against her brother for herself, the minor, and her said brother; that the claim for revenues is unfounded in law, and that the evidence does not support the several demands.

The appellants having become creditors of the husband after the dissolution of the community by the death of tho wife, have no claim upon the share of the wife, but have an interest in seeing that tho property of the husband, their debtor, is made available for their debts against it. Any proceedings between tho parties to this suit touching the property of the wife only can have no effect upon tho rights of said creditors upon the property of the husband. As to those, these parties have the right to demand and obtain possession of their mother’s property, but they, the creditors, can properly contest any claim that the heirs of the mother may urge upon the property of their father, and although the judgment in this case may not be conclusive against them, they have a right to have it revised so far as it may in' their opinion prejudice them, and we agree with them that if the property described in the petition of plaintiff belonged to tho community, tho husband, as usufructuary, was entitled to the revenues, and that consequently there is error in making the testamentary executor account to the heirs for the same. As to what property constituted the community, we have the inventory, which must'be taken as sufficient for the purposes of this suit between tho heirs. The appellants have the right to show, in the succession of their debtor, what property belongs to it. And as to the paraphernal rights allowed in the judgment appealed from, we do not think the evidence sufficient, it riot appearing in the record that the wife’s claim, if proven, was properly recorded.

It is therefore ordered that, as to the appellants, so much of tho judgment appealed from as orders the testamentary executor to account to the heirs for the revenues of the share of Mrs. Roselia Thezan in the community, and gives a' mortgage and privilege for $3223 66 as para-phernal funds, bo reversed. It is further ordered that all of appellants’ rights as creditors of Sidney Thezan, bo reserved to be urged in due course of the administration of the succession. Costs of appeal to be paid by appellees.


author: TaliafeeRO, J.

text:
    No. 6279.
    State ex rel. James Koppel vs. William L. Thompson.
    Justices of tho peace are constitutional officers composing a part of the judiciary. Article ninety-six of the constitution of 1808 provides for the removal of various State officers, the judges of tho Supremo Court, and the judges of inferior courts, justices of the peace excepted, by impeachment.'
    The removal from office of justices of the peace is provided for by address of two-thirds of tho members of both branches of tho General Assembly, according to article 108 of said constitution, as they are not removable by impeachment as provided for tho removal of other constitutional officers in accordance with article ninety-six of the constitution.

      As the manner of removal from office of justices of the peace is established by tlio constitution, no other method of removal can be resorted to, and therefore tho provisions of thb aot No. 26 of the acts of 1873, so far as they declare that a conviction of extortion in office by a public officer shall ipso facto operate a vacation of the office, are at variance with article 106 of the State constitution, and do not apply to the defendant. It follows that no vacancy in the office of fifth justice of the peace of the parish of Orleans has arisen, as alleged by relator, from tho protended conviction of defendant of the offense of extortion in office. There being no vacancy, there was no room for an appointment by tho Governor.
    APPEAL from tho Superior District Court, parish of Orleans. Lynch, J.

      A. J. Lewis, for relator and appellee.

      S. Belden, for defendant and appellant.
   TaliafeeRO, J.

The relator sets forth that he was duly nominated by the Governor of the State for the office of fifth justice of the peace for the parish of Orleans, and duly confirmed; that he was commissioned and took the oath of office on the nineteenth of January, 1876. The relator complains that he is prohibited from the exercise of tho duties of the office ho has been appointed to and deprived of the privilege and emoluments of the same by one William L. Thompson, who unlawfully exercises the duties thereof. He prayed that a rule bo granted compelling said Thompson to show cause why it should not bo decreed that he is unlawfully holding said office, and that the relator is justly entitled to it, and to be put into possession thereof. In answer to the rule the defendant denied the right of the relator to tho office, alleging that respondent was duly elected to said office in 1874, and was commissioned according to law oy the Governor of the ■ State, and that no vacancy has occurred in the said office. Judgment was rendered in favor of tho relator. The defendant has appealed.

It seems tho relator, Koppel, was appointed to fill the alleged vacancy arising in the office in controversy from a conviction of the defendant of the offense of extortion in office. Acts of 1873, p. 63.

On the part of tho defendant it is argued that the provisions of the second section of tho act of the fifteenth of February, 1873 (act No. 26 of the acts of 1873), so far as they declare that a conviction of extortion in office by a public officer shall ipso facto operate a vacation of the office or functions of such officer, are at variance with article 106 of the State constitution, which provides that “ all civil officers shall be removable by an address of two thirds of the members elect to each house of tho General Assembly, except those whose removal is otherwise provided for by this constitution.”

It is held in defense of Thompson, the defendant, that justices of the peace are constitutional officers composing a part of the judiciary; that article ninety-six of the constitution of 1868 provides for the removal of various State officers, the judges of the Supreme Court and the judges of inferior courts, justices of the peace excepted, by impeach-nient; that the removal from office of justices of the peace is provided for by address of two thirds of tho members of both branches of tho General Assembly according to article 106 above referred to, as they are not removable by impeachment as provided for tho removal of other constitutional officers in accordance with article ninety-six of the constitution; that as the manner of removal from office of justices of tho peace is established by the constitution, no other method of removal can bo resorted to, and therefore tho provisions of tho second section of tho act of the fifteenth of February, 1878, as quoted above, do not apply to tho defendant, .and therefore that no vacancy in tho office of fifth justice of tho peace for tho parish of Orleans has arisen, as alleged by relator, from the pretended conviction of tho defendant .of the offense of extortion in office, and, there being no vacancy, tliero was no room for an appointment.

Wo think the defense should be sustained.

It is therefore ordered that the judgment of the Superior District Court be annulled, avoided, and reversed. It is further ordered that there be judgment in favor of the defendant with costs in both courts.

Rehearing refused.


author: Howell, J. Wyly, J.

text:
    No. 4877.
    Succession of Eugene Hacker. On Rule to set aside Order of Sale.
    The administrator obtained an order to sell property upon terms ol one third cash and balance on one and two years credit, whereupon tho appellee, as holder oí a matured mortgage, note, by rule, caused the terms to be changed to cash, and from this action of tho court this appeal is taken. The motion to dismiss can not prevail.
    The order is one from which an appeal may he taken. It is reasonable to infer that injury of an irreparable character may result in tho depreciation consequent upon a sale for cash instead of on terms of credit.
    The proceeding to sell tho property in tho manner attempted was illegal, when the widow and heirs were put in possession by order of court tho succession of Eugene Hacker jvas closed. It was not therefore in the power of the court to reopen it. Tho appointment of an administrator was irregular, tho original order of sale was illegal, and the modification thereof in the judgment appealed from was likewise void, because the succession of Hacker was no longer under t-lie. jurisdiction of tho court.
    from tho Second District Court, parish of Orleans. Tíssot, J..

      Alfred Grima, for plaintiff in rule and appelloe.

      Bent-hick Egan, for defendant, Mrs. Hacker.

      E. Bermudez, for J. Duvigneaud, administrator and defendant in rule.
   On Motion to Dismiss.

Howell, J.

A motion is made to dismiss this appeal because it is taken from an interlocutory or dor wliicb, it is alleged, will not causo an irreparable injury.

Tlio administrator obtained an order to sell property on terms of one third cash and balance oil one and two years credit, whereupon the ap-pellee, as holder of a matured mortgage note, by rule caused the terms to be changed to cash, and from this action of tho court this appeal is taken.

We are of opinion that the order is one from which an appeal may be taken. It is reasonable to infer that injury of an irreparable character may result in the depreciation consequent upon a sale for cash instead of on terms of credit.

The motion is denied.

OK the Meiut.-’.

Wyly, J.

Eugene Hacker died in May, 1871, leaving a widow and several children, some of age. and some minors, and leaving a succession consisting of community propeity. The widow, Mrs. Agatlio Hacker, was confirmed as natural tutrix. Subsequently, to wit: on tho twelfth of April, 1872, slio obtained an order ro 'ognizing her as owner of one half tho property, and was entitled to tlio usufruct of tho other half, and in said capacity she was put in possession of all tho property inventoried as belonging to the succession of her husband, Eugene Hacker. Subsequently, slio borrowed from Ahilé Gautier five thousand dollars, giving a note secured by mortgage on the pi-porty described in this suit, said mortgage being made by her individually and as natural tutrix, under advice of a family meeting and order of court; tho major heirs also joined in said mortgage.

In January, 1878, subsequent to tho execution of this mortgage, and nearly one year after the surviving widow had boon put in possession, Joseph Duvignoaud applied for and was appointed administrator of this succession. He filed a statement of debts and obtained an order to sell the real estate embraced in tho inventory of this succession on the following terms: One third cash,' and the balance on one and two .years credit, secured by mortgage and vendor’s privilege. Thereupon Gautier, the mortgage creditor of the widow and tho major and minor heirs, took a rule to compel the sale of tho mortgaged property for cash instead of the terms fixed in the order obtained by the administrator; and from the judgment making this rule absolute this appeal was taken.

The proceeding to sell the property in the maimer attempted was illegal. When tho widow and heirs were put in possession by order of court, tlio succession of Eugene Hacker was closed. It was not thereafter in tho power of the court to roopon it. Tho appointment of an administrator was irregular, tho original order of sale was illegal, and the modification thereof in tho judgment appealed from was likewise void, because the succession of Hacker was no longer under jurisdiction of the court. 22 An. Cl; 25 An. 56, 220.

It is therefore ordered that the judgment appealed from bo annulled and tho rule herein bo discharged, tho plaintiff therein paying costs of both courts.


text:
    No. 6169.
    J. J. McCook & Brother vs. E. B. Willis et al.
    The plaintiffs, living fit Natchitoches. Louisiana, having claims against the defendants, residents of Sabine county, Texas, brought this suit in tho parish of Sabine, Louisiana, proceeding by attachment levied upon a lot of merchandise that was being transported through the parish to the defendants, living in Texas, and who owned said merchandise.
    It is shown that four sureties signed the attachment bond, three of them residents of tho parish of Sabino and tho other a resident of the parish of Natchitoches. It was properly objected that one of the sureties, who has his domicile in tho parish of Natchitoches, is not a legal surety such as tho law requires on attachment . bonds. The other sureties, residing in tho parish of Sabine, are neither individually nor collectively good for the amount of the bond.
    It has boon often ruled that all tho requirements of tho law must borigidly complied with when resort is had to wliat has beau characterized as the harsh remedy of attachment. The attachment in this caso was properly dissolved and the suit dismissed.
    APPEAL from the Seventeenth Judicial District Court, parish of Sabino. J. B. Elam, judge ad hoe.

      Jack <& Piernón and J. F. Smith, for plaintiffs and appellants.

      M. J. Cunningham and 21 P. Chaplin, for ■defendants and appellees.
   Taliaferro, J.

The plaintiffs, living at Natchitoches, Louisiana, having claims against tho defendants, residents of Sabine county, Texas, brought this suit in tho parish of Sabine, Louisiana, proceeding by attachment levied upon a lot of merchandise that was being transported through that parish to the owners, the defendants, living in Texas. Various exceptions wore taken by tho defendants and the curator ad hoe to tho alleged illegality of the proceedings, and a motion was made to dissolve tho attachment and to dismiss the suit. Tho judge of tho district court being recused, an attorney at law was appointed judge ad hoe to preside and determine the case.

The objections principally'relied upon to show nullity fatal to tho proceedings in attachment are two, viz: That copies of the citation ;md attachment were not served by the sheriff by affixing copies of tho same on the door of the room where the. court in which tho suit is pending is held, as required by article 254 of the Code of Practice; that no legal and sufficient attachment bond was given.

Tlie first of these exceptions was overruled. The second was sustained and the'suit dismissed. The plaintiffs have appealed.

IVo conclude the decision was properly rendered. It is shown that four sureties signed the bond, three of them residents of the parish of Sabine and the other a resident of the parish of Natchitoches. It was properly objected tliat Ponder, one of the sureties, who has his domicile in the parish of Natchitoches, is not a’legal surety, such as the law requires on attachment bonds.. All the requirements of the law, it has been often ruled, must be rigidly complied with when resort is had to what has been characterized as the harsh remedy of attachment. Ponder, the security residing in the parish of Natchitoches, it seemed to the court a qua was the only surety on the bond that was solvent. The others, residing in the parish of Sabine, were not considered individually or collectively good for the amount of the bond. The evidence introduced on the subject of the solvency of the sureties, in our opinion, justifies the conclusions of the judge acl hoc. 14 La. 245; 1 An. 307; C. P. 245; C. C. 3042.

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


author: ■Wily, J.

text:
    No. 5179.
    John E. Crone vs. the Citizens’ Bank of Louisiana et al.
    The judge a quo did not'orr in admitting parol evidence to prove that prescription had been interrupted as to a mortgage note drawn by plaintiff in injunction, and the bill ot exception was not well taken.
    After prescription has acquired, that is, after a note has become barred by prescription of five years, parol evidence of a promise to pay it will not be admitted, because of tin reiuiroments of the article 1858. The promise to pay before the bar of prescription liad obtained, interrupted the current of proscription, and this promise can be proved by parol evidence.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      E. I). ■ Craig, for plaintiff and appellant.

      B. F. Jonas, for defendant and appellee.
   ■Wily, J.

Plaintiff appeals from the judgment dissolving the injunction sued out by him to restrain the executory process obtained by the Citizens’ Bank on his mortgage note.

The ground for injunction was that said note was barred by the prescription of five years. At the trial, defendants proved by two disinterested witnesses and other corroborative evidence that prescription had been interrupted.

The judge did not err in admitting parol evidence to prove that proscription had been interrupted, and the bill of exceptions was not well taken. After proscription has acquired, that is, after a noto has become barred by prescription of five years, parol evidence of a promise to pay it will not be admitted, because of the requirement of the act of 1858.. The promise to pay before the bar of proscription had obtained interrupted tho current of prescription, and this promise can be proved by parol evidence.

Judgment affirmed.


author: Taliabeero, J.

text:
    No. 6127.
    State of Louisiana vs. Frank Bennison.
    Intins in stun-* thoploa of proHut-iplion, undo- tlio statute of limitations, of one-ycir, s it up in ba. piuco Uin allege,! discovery of tlio offonso with which tlio accused is charged by tho district attorney and olhor public authorities, must prevail.
    By the bill of exceptions found in tin record it appears to liav-o been admitted on llu- part of tlio Ktnl o that tin a'-cusod was taken into legal custody for tho offo.nsc charged, prior to tho first of July, 1871, and that ho has been in prison over since, moro, than ono year having intervened between that dato and tho timo of filing the information on the seventh of December, 1876.
    APPEAL from the Seventh Judicial District Court, parish of Pointe Coupée. IIewes, J. Criminal case.

      Olivier 0. Provosty, District Attorney, and A. P. Field, Attorney General, for plaintiff and appellee.

      A. D. M: Haralson, and F. H. Farrar, for defendant and appellant.
   Taliabeero, J.

The defendant appeals from a j udgment condemning him to thirteen years .imprisonment at hard labor in the Penitentiary.

Wo find from tho record that tho defendant was proceeded against twice by information and twice by indictment for the same offense, charged to be the burglarious breaking into tho dwelling-house of ono Joseph Mo'ise, with intent to murder him and steal his goods and chattels. The accused was convicted under the information filed against him, on tho fifth of December, 1875, at tho regular term of the district court of tlio parish of Pointe Coupee. He ha'd been twice before put on trial on the said charge. A motion was made to quash and set aside the information last filed (Decomber 5, 1875), on the following grounds:

First — That there are material erasures and interlineations therein, without any written statement that they were made prior to signing and filing tlio same.

Second — That the State can not prosecute by information for tho offonso charged, and that he can only be hold to plead to such a charge-if made by a grand jury.

Third — That the information charges him with tho same crime with which he has boon twice before charged in this court, to wit, “ burglary,”' once by indictment filed on tho eleventh December, 1874, and once by information filed thirtieth July, 1875. That the State can not detain him in custody from time to time on successive reiterated charges for the same offense.

Fourth — That tho information filed at this term, to wit, on the seventh December, 1875, shows that defendant has once been tried, viz: at tho December term, 1874, now attempted to bo revived against him.

Should tho above motion to quash bo overruled, tho defendant pleads in bar to this prosecution: First — Autrefois acquit. Second — Prescription.

The motion and picas in bar were overruled, and a bill of exceptions taken to the ruling.

A formal plea of prescription was filed interposing and pleading in bar of the prosecution prescription and the statute of limitations of one year since tho alleged discovery of the offense with which he is charged by the district attorney and other public authorities, and therefore that said prosecution can not be held or maintained by tho State, and he moved to have tho same dismissed with all costs in this behalf expended.

The plea of prescription must prevail. By the bill of exceptions found in the record it appears to have been admitted on tho part of the State that the accused was taken into legal custody for tho offense charged prior to the first of July, 1874, and that ho has been in prison ever since, more than one-year having intervened between that date and the time of filing tho information on the seventh of December, 1875.

It is therefore ordered that the judgment appealed from bo annulled, avoided, and reversed. It is further ordered that tho prosecution against the defendant bo dismissed.


text:
    No. 6134.
    State ex rel. Mrs. E. E. Meux vs. Judge of the Fourth District Court, Parish of Orleans.
    Tho relator prays for a mandamus to compel the, defendant to sign a judgment on rule rendered by him. Tho judgment, being the final act of the judge a ano in the said proceeding, is the end of the suit in his court, and is therefore not interlocutory, but a final one, which is required to be signed.
    APPLICATION for a mandamus against the tho Judge of the Fourth District Court, parish of Orleans.

      J. J. Foley, for relator.

      Judge Lynch, respondent, m i>roi>ria persona.

   Ludeling, C. J.

Tho relator prays for a mandamus to compel tho defendant to sign a judgment rendered by him under tho following circumstances:

Mrs. Y. Burk, testamentary executrix, took a rule against tho sheriff to compel him to put her in possession of certain real property which had been sold by tho sheriff. Mrs. Meux, with leave of the court, intervened in tlie suit and opposed the application of Mrs. Burk, testamentary executrix. Thoro was a judgment in favor of tho plaintiff in tho rule, and the relator wants the judge to sign that judgment so that she may appeal.

The judge’s answer, in substance, is that there is no necessity for his signature, as it is only an interlocutory order.

We think otherwise. The judgment rendered on the rule is the final act of the judge a quo in tho said proceeding; it is the end of the suit in his court, and is therefore a final judgment, which is required to be signed.

It is therefore ordered that the mandamus be made peremptory.