author: Wyly, J. Howell, J.

text:
    No. 3637.
    James Ready et als. v. City of New Orleans et al.
    That the matter in dispute in this case against each of the plaintiffs is less than $500, is no-ground to dismiss the appeal. The matter in dispute is the sum claimed hy defendants under a contract with the city, and the amount in the contract far exceeds $500. The controversy as to them involves the validity of the contract. As they could appeal from the judgment, had it been against them, the plaintiffs also can appeal.
    It is sufficient that the surety has signed the appeal bond — the appellants, parties to the suit, being bound without signing the bond, to abide the result of the litigation.
    The appeal bond was filed in time. The delay occasioned by the mandamus proceedings to-compel the judge to grant the appeal, can not prejudice the appellants.
    It is not necessary for one-fourth of the front proprietors on the whole length of a street in which improvements are to be made to petition the council for that purpose. It is sufficient if it be done by those on the portion sought to be improved.
    APPEAL from the Eighth District Court, parish of Orleans. Dibble, J.

      Ogden dc Bill, for plaintiffs and appellants. Samuel P. Dianer assistant city attorney, for defendants and appellees.
   On Motion to Dismiss.

Wyly, J.

The plaintiffs, James Rea-ly and twenty other persons, property owners, fronting on a certain shell-ro.ad constructed by J. J. O’Hara, under a contract with tne city of New Orleans, sue to annul the contract on the grounds stated in the petition. And the defendant O’Hara sets up a reconventional demand against each of the plaintiffs for the amount due by them to him under said contract.

The suit as to all the plaintiffs was dismissed on. various exceptions, except as to Schmidt, Miller, Lockhart, Reynolds, Fareday, and Sick-forth, contradictorily with whom judgment was rendered rejecting their demand and sustaining the reconventional demand of J. J. O’Hara against them. From this judgment they have appealed.

Seven only of the plaintiffs who were dismissed on exception have appealed, and in this court they have signed a written consent to discontinue the suit and dismiss the appeal. The six appellants, therefore, contradictorily with whom the case was tried on the merits, are the only contestants on the part of plaintiffs now before the court. As to them the defendants move to dismiss the appeal.

First — Because the matter in dispute against each of them is less than $500.

Second — Because the appeal bond was not signed by the appellants, but only by the surety.

Third — Because the bond was filed after the time for a suspensive appeal had expired.

1. The matter in dispute is the sum claimed by the defendants under a contract with the city for building a shell-road and the amount involved in that contract far exceeded five hundred dollars. If the court below had held the contract to be invalid, the defendants would doubtless have been clamorous for an appeal, because the controversy as to them involved the validity of a contract in which they have-an interest .of many thousands of dollars. As they could appeal if the judgment had been against them, the plaintiffs also can appeal.

2. The surety signed the appeal bond. This is sufficient, the appellants, parties to the suit, being bound without signing the bond, to abide the result of the litigation.

3. The appeal bond was filed in time. The delay occasioned by the mandamus proceedings to compel the judge to grant the appeal can not prejudice the appellants.

The motion to dismiss the appeal from the judgment on the merits is denied ; and the motion to dismiss the appeal from the judgment on the exception by written consent of the parties is granted, appellants from said judgment paying costs of appeal.

On the Merits.

Howell, J.

The only question presented by the appellants in this case is whether it is necessary for one-fourth of the front proprietors on the whole length of a street to be improved, or only those on the portion sought to be improved, to petition the council for that purpose. This was judicially settled in the case of Daniel et al. v. City of New Orleans et al., 26 An. 1, in which it was said: “We think the law, when it speaks of one-fourth of the proprietors upon whose petition the City Council is to act, refers to the owners of property fronting on the portion of the street to be paved. There can be no reason for supposing the lawmaker intended that either the assent of the owner, whose front had already been paved, or that of him whose front it was not proposed to pave, should be heard, but only the assent of those in whose front the banqueting was to be made.” See also 23 An. 306.

The judgment therefore in favor of defendants was correct.

Judgment affirmed.


source: Caselaw Access Project

author: Howell, J.

license: Public Domain

text:
    No. 3567.
    Jacob F. Wild v. Albert Erath.
    In this case the notes given by defendant for the price of a certain piece of property were made the debt of the firm composed of plaintiff and defendant by the act of partnership and purchase, but the notes given by each partner to represent the cash which each agreed to advance as the capital of the partnership were and are the individual debt of each partner, and neither one is responsible for the notes of the other unless he expressly made himself liable therefor. The fact that the interest on such notes was paid by the firm and charged to the maker does not make the notes the debt of the firm, nor would the payment of said notes out of the interest of each partner in the partnership have such effect.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J.

      G. Schmidt, Kennard, E'owe & Prentiss, for plaintiff and appellant. J. D. Augustin, F. B. Earhart, Alfred Shaw, for defendant and appellee.
   Howell, J.

This is a suit to effect the settlement oí the partnership which existed between the parties, and the only question for our decision is whether or not the plaintiff is responsible for three notes made by the defendant to his own order and used as capital in establishing the partnership.

These parties purchased a large brewery from Fasnacht Bros, for $100,000, one-fourth cash, and the balance in monthly installments, evidenced by notes made by the defendant to his own order and secured by mortgage on the property purchased. Not having the money to make the cash payment, the vendors agreed to take notes of the purchasers, indorsed by their friends, and the plaintiff, Wild, furnished one for $12,500, indorsed by Hecker, and the defendant, Erath, three, one for $5000, indorsed by Ramelli, one for same sum, indorsed by Battalosa, and one for $2500, indorsed by Boehler. About four years afterward, the defendant made a written proposition to the plaintiff to dissolve the partnership and transfer to him the property, claims, etc., on condition—

First — That plaintiff would assume all the debts of the partnership.

Second — The partners should release all claims against each other.

Third — Plaintiff, within a fixed time, to discharge defendant from all outstanding notes having the signature of Erath & Co. (the style of their firm), and the mortgage notes given by defendant for the original purchase.

This proposition was accepted, and the plaintiff entered into sole possession of the premises. He subsequently caused a notarial act of settlement to be prepared in conformity to the written proposition and called upon the defendant to sign it, which he refused to do, and hence this suit.

As the three notes in controversy do not bear the signature of the firm, and are not especially mentioned, as are those given by Erath alone for the purchase of the property, we think they are not embraced in the proposition for a settlement. Inclusio unius est exclusió alterius. Unless they were specially and expressly included, it would not be presumed that tbey'would be, for they simply represented the cash capital which the defendant should have put in and are his individual debt, not in any manner the debt of the firm, and It was only the debts of the firm that plaintiff was to assume. The notes given by defendant for the price of the property were made the debt of the firm by the.act of partnership and purchase; but the notes given by each partner to represent the cash which each agreed to advance as the capital of the partnership were and are the individual debts of each partner, and neither one is responsible for the notes of the other unless he expressly made himself liable therefor; and there is nothing in the record to show such assumed liability. The fact that the interest on such notes was paid by the firm and charged to the maker does not make the notes the debt of the firm. Nor would the payment of the said notes out of the interest of each partner in the partnership have such an effect.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of plaintiff dismissing defendant’s claim in reconvention and condemning him to perform and carry into effect the contract of transfer and dissolution of partnership described in plaintiff’s petition and marked “B,” according to its true intent and spirit, defendant to pay all costs.

Rehearing refused.


author: Wtlt, J. Howell, J.

text:
    No. 5462.
    John T. Michel v. Zerilla Meter et al.
    ■Where the transcript of the appeal was filed on the seventh of November, 1874, and on the eleventh the defendants, appellees herein, filed an answer praying for an amendment of the judgment, and where on the fourteenth they moved, to dismiss the appeal, because the appeal bond was not for a sufficient amount, because the transcript was not filed in time; and because the clerk certifying the record omitted to append his signature;
    Held--That the motion came too late.
    Besides, having joined in the appeal, the appellants ought not to be heard asking for its dismissal.
    The certificate appended to the record should be signed by the clerk. This court, of its own motion, orders it to bo done, and denies the motion to dismiss.
    In this instance, where the plaintiff injoined an order of seizure and sale issued on behalf of defendants, the judge a quo did not err in dissolving the injunction for the sum really due by plaintiff, and perpetuating it as to the small sum received by defendant and to be credited to plaintiff, but he should have allowed damages on the amount that was due. The remittitur by defendants is an admission that the writ issued for more than was due. The making of a remittitur does not remove the existence of the cause for the injunction, to that extent, at the date of its issuance.
    from the Fifth District Court, parish of Orleans. Cullom, J.

      It. King Cutler, for plaintiff and appellant. J. M. Harding, for defendants and appellees.
   On Motion to Dismiss.

Wtlt, J.

The transcript of this appeal was 'filed on the seventh November, 1874. On the eleventh the defendants, appellees herein, filed an answer praying for an amendment of the judgment. On the fourteenth they moved to dismiss the appeal because the appeal bond was not for a sufficient amount, because the transcript was not filed in time, and because the clerk certifying the record omitted to affix his signature.

The motion comes too late. Besides having joined in the appeal the appellants ought not to be heard asking its dismissal.

The certificate appended to the record, however, should be signed ■by the clerk. Of our own motion, it is ordered that the clerk of the Fifth District Court, Thomas Duffe, 'affix his signature to the certificate appended to the record. And the motion of appellees is denied.

On the Merits.

Howell, J.

The plaintiff injoined an order of seizure and sale on the grounds:

Mr si — That the creditor had given an extension and was to receive rents of the property during said extension in consideration thereof.

Second — That out of said rents the creditor was to pay the insurance premium, which she failed to do.

Third — The property is improperly described in the advertisement.

On the trial in the lower court the judge found that the extension, which had been granted, had expired before the writ issued and had not been renewed, but that the defendant had received sixty dollars in rents, for which no credit was given, and he perpetuated the injunction as to such sum and dissolved it as to the balance, without damages. The plaintiff appealed, and in the answer the defendant asks that the judgment be amended by allowing the highest damages and dissolving the injunction in toto, because, pending these proceedings, a remittitur was entered in the executory proceedings.

We think the judge a quo did not err in dissolving the injunction, for the sum really due and perpetuating it as to the small sum received by the defendant, but he should have allowed damages on the amount that was due. See 4 An. 150; ■ 3 An. 125.

The evidence does not establish the extension as alleged by plaintiff, and the remittitur is an admission that the writ issued for more than was due. The making of a remittitur does not remove the existence of the cause for the injunction, to that extent, at the date of its existence.

It is therefore ordered that the judgment appealed from be amended by condemning the plaintiff and his surety on the injunction bond in solido to pay defendant, Z. Meyer, $600 damages and all costs of suit.

Rehearing refused.


author: Taliaferro, J.

text:
    No. 3580.
    Martin Kenopsky v. Mark Davis et al.
    Tlie privy, in this instance, being built npon the yard or space of ground belonging in common between the parties, the defendant had no right to place or keep said privy on it without the consent of his co-owner.
    APPEAL from the Eighth District Court, parish of Orleans. Dibble, J.

      Whittalcer <& Mice, for plaintiff and appellee, J. J. Barnett and F. Fuselier, for defendants and appellants.
   Taliaferro, J.

The plaintiff complains that against his consent, and greatly to his annoyance and injury, the defendants have built a privy in a yard owned in common by them and plaintiff, which, from the condition it is kept in, has not only become an intolerable nuisance, but works serious damage to the property of the plaintiff. He avers that, in the structure of the privy the defendants have illegally broken into the walls of the plaintiff’s building and rested the joists necessary in the construction of the privy, which is elevated to the hight of two stories, upon the walls of the plaintiff’s building. He further sets forth that the vault of the privy is constructed contrary to law, if the defendants had a right to place it where it is; that the offensive dampness and noxious effluvia necessarily arising saturate the walls of the plaintiff, injuring them seriously and causing damage to his stock Of goods kept in his building, owing to the close proximity of the nuisance complained of. He prays damages to the amount of three thousand dollars, and that an injunction issue to prevent defendants from using or permitting to be used by others the privy so unlawfully established by them to the injury and annoyance of the plaintiff.

The answer is a sweeping denial of all the allegations of the plaintiff. It avers that the vault and privies have been in the uninterrupted possession of the defendant, Davis, by himself and his lessees, for more than ten years, and the plea of prescription of ten years is interposed.

This suit was commenced in the Sixth District Court in the year 1869. A judgment was rendered in that court on the twenty-fifth of May, 1870, in favor of the defendants. An application was made for a new trial; but, pending the motion, the case was transferred to the then newly éstablished Eighth District Court. In the Eighth District Court a new trial was granted, and the case was tried upon the voluminous evidence taken on trial of the case in the Sixth Court, with some additional evidence taken on the second trial. In the inception of the suit in the Sixth Court, the judge thereof granted an injunction, which was dissolved. He gave at considerable length the reasons that determined his decree in favor of the defendants, and it is not unworthy of remark that the judge of the Eighth Court, adopting entirely, as it appears, the reasoning of the judge of the Sixth Court, arrived at a conclusion diametrically opposite from that of the latter. The judgment of the Eighth Court awarded the plaintiff the three thousand dollars damages prayed for and perpetuated the injunction.

From this judgment the defendants have appealed.

We do not concur in opinion with either of our learned brothers of the courts below. The privy being built upon the yard or space of ground belonging in common between them, the defendants had no right to place or keep a privy on it without the consent of his co-owner. We are unable to find from the large mass of evidence, conflicting as it does to no small extent, that the plaintiff has made out a case entitling him to three thousand dollars damages, or even that he is entitled to damages at all to any certain appreciable amount.

It is therefore ordered that the judgment of the lower court, so far as it awards damages in favor of the plaintiff, be annulled and avoided, and that the judgment, as thus altered, be affirmed, the defendants paying costs in the lower court; the plaintiff and appellee paying costs of this appeal.

Rehearing refused.


text:
    No. 4037.
    Henry Eden v. F. Lemandre et als.
    This is a suit to recover the penalties stipulated in two charter parties, for the violation thereof, in relation to voyages to bo made by two different vessels.
    The putting in default was sufficient as to one of the vessels, but there is no proof that either of the modes for putting in default pointed out in article 1911, E. O. C. Eb. 2, was observed in relation to the other vessel, until the day the contract expired, when it was impossible for the vessel to executo her voyage on, or previous to, that day. The defendants are therefore liable jointly and vn solido, as they bound themselves, only for the infraction of the contract as to one of the vessels.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      F. O. Zaeharie, for plaintiff and appellant. F- Bermudez and Charles F. Claiborne, for defendants and appellees.
   Howell, J.

The plaintiff sues to recover the penalties stipulated in two charter parties for the violation thereof. The defense is a general denial.' Two vessels were chartered by the plaintiff to the defendants “for voyages from the ports of Ruatan and Utilla to New Orleans, until the first day of June, 1871, including any voyage which may have commenced on or previous to that day.’' The charterers were to furnish the said vessels with cargoes of fruit, or money to purchase the same; the freight was to be paid a part in advance, and the balance on arrival in New Orleans. The penalty in the case of one vessel was fixed at $750, and of the other at $700. One of the vessels, the brig Ruatan, was at the date of the contracts (which were made in New Orleans), in the port of Grand Cayman ; the other, the schooner Lizzie Lina, in New Orleans. Three voyages were made by each of the vessels, the defendants in New Orleans advancing the funds to purchase the cargoes. On the twentieth May, 1871, the brig was ready to leave New Orleans to make the fourth voyage, and the captain called on J. Macheca & Co., with and through whom he had previously transacted all matters under the charter parties, notifying them in writing of his readiness to proceed to make the voyage, and demanding the funds necessary to procure the cargo. Macheca & Co. answered that their associates would not allow the vessel to go out; they agreed to pay their portion if the owner would not sue, and said they had advanced for the others on the former voyages and had not been reimbursed. The other parties were aware that the brig was ready and awaiting advances. The schooner was ready on the twenty-second May, and the plaintiff (the captain thereof) called on Macheca & Co. in relation to both vessels, and was told that the charterers were losing money and proposed to compromise by keeping one vessel, if released from the other. Nothing was effected between the parties, and on the thirty-first May a formal demand was made of each of the defendants to comply with the charters, to which they answered in writing that they were “ready to comply with the charter party.” On the next day they were called on for the balance of freight due on the last voyage, and for the money to purchase the next cargo. The freight was paid, but the cargo money was refused on the ground that the charter was abandoned. It is contended by the defendants that they were not legally put in default, and that if they were it was too late, as it was then impossible to begin a voyage from Euatan to New Orleans.

As to the brig Euatan, we think the defendants were put in default by the written demand of the captain on twentieth May, and that the evidence shows that she could have gone to Euatan previous to the first of June. But, as to the schooner Lizzie Lina, there was no default until the thirty-first of May, the day on which the charter was to expire. By article 1911, E. C. C. No. 2, the debtor is put in default either by the commencement of a suit, by a demand in writing, by a protest made by a notary public, or by a verbal requisition made in the presence of two witnesses.

There is no proof that either of the modes was observed in regard to the last named vessel, until the day the contract expired, when it was impossible for the vessel to go to Euatan to commence a voyage on or previous to the first day of June, according to the terms of the contract. The defendants bound themselves jointly and in solido.

It is therefore ordered that the judgment appealed from be reversed, and that the plaintiffs recover oí the defendants in solido the sum of $750, with legal interest from the first day of June, 1871, and costs.


author: Wtlt, J.

text:
    No. 3948.
    Mechanics’ and Traders’ Bank v. J. Barnett.
    This is a suit “brought against defendant on a not© drawn by him, and pledged as security to plaintiff by Carlos, Marks & Co. for the payment of three of their notes. The defense is that the defendant has paid two of the notes, and has tendered the plaintiff the amount of the last one, for which the instrument sued on was given in pledge, it being a note signed for accommodation and without consideration, for the benefit of the pledgors.
    The plaintiff knew that the pledge was an accommodation note. In law and equity, therefore, the defendant ought not to be required to pay more than the amount for which the pledge was given, to wit: the three notes discounted by Carlos, Marks & Co., and ought not to be extended to cover money overdrawn by said Carlos, Marks & Co. But a formal real tender of the money having not been made as required by law, defendant can not be exonerated from interest and costs.
    APPEAL from the Fifth District Court, parish of Orleans. Beaumont, J.

      Randolph, Singleton & Browne, for plaintiff and appellant. B. Howard MeOaleb, for defendant and appellee.
   Wtlt, J.

On the twenty-fourth of March, 1870, Carlos, Marks & Co. had discounted at the Mechanics’ and Traders’ Bank their three promissory notes for $1000 each, maturing, respectively, in thirty, forty-five and sixty days after date; and as security they pledged the accommodation note of J. Barnett for $3100, drawn to his own order and indorsed in blank, payable sixty days after date,

Carlos, Marks & Co. failed before the maturity of their first note, and it was paid by Barnett, who also paid the second note at maturity.

He applied at the bank to pay the last note, for which his own was held in pledge, at maturity, and its payment was refused, the bank demanding payment of the pledged note in full. The plaintiff, the Mechanics’ and Traders’ Bank, then brought this suit against Barnett for $3100, the full amount of his accommodation note) issued to said Carlos, Marks & Co. The defense is the defendant has paid two of the notes and tendered the plaintiff the amount of the other, for which the instrument sued on was given in pledge, it being a note issued for accommodation and without consideration to the pledgors, Carlos, Marks & Co. The court maintained the defense, giving judgment requiring the plaintiff to deliver to the defendant his note on payment of $1000, costs being paid by the plaintiff.

The plaintiff has appealed.

After the first note of Carlos, Marks & Co. had matured, it is contended, the bank obtained their consent to extend the pledge to cover the sum of $1126 32, the amount overdrawn by said pledgors, not-being aware that the pledged note was accommodation paper.

On the other hand, Carlos, who effected the discount with the bank, swears positively that the president and the cashier were acquainted with the fact that the note of defendant, given in pledge, was executed by him to Carlos, Marks & Co. for accommodation and without consideration. Therefore, if the subsequent conversation between the president of the bank and Carlos, in regard to the overdrawing by the latter, be extended to imply his consent that the pledged note might also be held as collateral security for the amount so overdrawn (on which point the proof is not at all conclusive), it would be of no avail to the plaintiff, because the latter had knowledge that the thing pledged was accommodation paper. We regard the pretended second pledge of the note, or the statement in relation thereto, as a feeble attempt to secure a bad debt of $1126 32, the amount overdrawn by Carlos, Marks & Co. In law and in equity the defendant ought not to be required to pay more than the amount for which the pledge was given, which was nearly the full amount of the pledged note. He has already paid plaintiff two thousand dollars, and has offered to pay the balance — one thousand dollars — which was refused.

The defendant swears he made a tender to plaintiff at maturity of the last note for which his own was pledged; but it is not proved that a formal real tender of the money was made as required by article 407 C. P. The defendant can not, therefore, avail himself of the exoneration from interest and costs stated in article 415 C. P. See, also, 6 La. 19$ 4 E. 144; 2 An. 441; 12 An. 246 $ R. C. 2168,2169$ C. P. 404, 407.

It is therefore ordered that the judgment herein be set aside, and it is decreed that the plaintiff recover of the defendant one thousand dollars, with legal interest from the twenty-fourth of May, 1870, and that the same be paid on plaintiff delivering , to the defendant the note in suit, and also the note of Carlos, Marks & Co. for $1000, payable sixty days from the twenty-fourth of . March, 1870. It is further ordered that defendant pay costs of both courts.


author: Wyly, J.

text:
    No. 5526.
    State ex rel. Attorney General et als. v. B. F. Jonas.
    It can not be doubted that tbe intention of tbe law is, that tbe city attorney must be elected biennially by tbe council. It is also clearly stated in the city charter that bis term of office is two years.
    Under the law tbe council can only elect a city attorney on the third Monday of November, or as soon thereafter as practicable, and unless tbe term expires biennially at that time, this duty could not be performed by said council.
    Tbe term of office of tbe mayor and administrators began on tbe first Monday of November, 1870, and continued for two years. That of tbe city attorney, tbe surveyor and tbe recorders began on tbe third Monday of November, at which time tbe law required these offices to be filled by an election for two years.
    With a view to give effect, if possible, to every part of tbe law, it must be concluded that tbe government established when tbe city charter went into operation in April, 1870, was a temporary organization, and that tbe permanent government began after tbe election of tbe mayor and administrators on tbe first Monday of November, 1870.
    Under this construction full effect can be given to that provision of tbe charter mailing it tbe duty of tbe council to elect a city attorney at tbe first regular meeting after its induction into office. Tbis could not be done if tbe term of tbe city attorney began with tbe temporary organization in April, 1870, and continued for two years. Tbe law clearly contemplated a vacancy and tbe beginning of a new term at tbe time required for tbe election. Otherwise, that election which was imposed as a duty on tbe city council could not have been performed — which would have been an absurdity. Hence it follows that tbe election of defendant by tbe council, as city attorney, on tbe fifth of December, 1874, was valid.
    APPEAL from the Superior District Court, parish of Orleans. Hcm-Mns, J. Jury trial.

      Henry G. Dibble, Assistant and Acting Attorney General, and J. B. Gotton, for plaintiff and appellant. Babatt, Aroni, and Olinton, for defendant and appellee.
   Wyly, J.

This is a controversy under the intrusion act, for the office of City Attorney of New Orleans. On fifth December, 1874, the defendant, B. F. Jonas, was elected by the City Council, and on the same day H. H. Walsh, who is joined as co-plaintiff, was appointed by the Governor.

The court, on the verdict of a jury, gave judgment for the defendant, and plaintiffs appeal.

The term of office is two years. At the beginning of a term power to fill the office by election is vested in the City Council. Section thirty-one of act No. 7 of acts of 1870. If a vacancy occurs, from any cause, power to fill it is confided to the Governor. Revised Statutes, section 1577.

The important question is: When did the term of office, begin ?

If in November, 1874, the election of Jonas by the council, on the fifth of December, the first regular session after-its own election, conferred title on him.

If, on the other hand, the term began in April, 1874, when George S. Lacey, the late -incumbent, was appointed, then his resignation on the fifth of December, 1874, created a vacancy, which was properly filled by the Governor, when he appointed H. H. Walsh. •

As there is much confusion in the charter of 1870 in regard to the beginning of the terms of the several offices therein mentioned as continuing for the period of two years, it becomes necessary to examine several sections of said charter, being act No. 7 of acts of 1870. It was approved on sixteenth March, 1870. Section four provides that the government of the city of New Orleans shall be vested in a mayo*- and seven administrators, naming them; “and said mayor and administrators shall be appointed or elected as hereinafter provided and shall form the council of the city of New Orleans. The Governor shall, by and witli the advice and consent of-the Senate, appoint the mayor and the seven administrators, who shall hold their offices until the first Monday of November, 1870, or until their successors are elected and qualified.” It further provides for an election on that day.

Section six provides: “ That on the second Monday following the day of their appointment or election the council shall hold its first meeting in the city hall, at which the mayor and administrators of department elect, having presented and filed their certificates of election and qualification, as herein- provided, shall enter upon the discharge of their duties as specified in this act, and their predecessors shall turn over to them all books, papers, property, money, and accounts pertaining to their offices and to the city of New Orleans.”

Section eight provides what shall be the duties of the mayor; also that ‘rhis term of office, when elected, shall be for two years.” * * The charter also fixes the term of office of the administrators at two years.

Section thirty-one provides: That it shall be the duty of the council at its first regular meeting after its induction into office, or as soon thereafter as practicable, to elect a secretary, whose duties shall be, etc. Also a city attorney, learned in the law, who shall be the legal adviser of the corporation, etc. * * * He shall hold his office for a term of two years, unless sooner.removed as provided for in this act. * * * Also a city surveyor, whose duty it shall be, etc. * * He shall hold his office for two years, unless sooner removed as provided in this act. * * * Also six recorders, one for each district, whose duties, etc. * * * Such recorders shall hold their offices for a term of two years, unless sooner removed as herein provided for in this act, etc.” * * *

It thus appears that a term of two years has been fixed as the period of duration for the offices of mayor, administrators, city attorney, surveyor, and recorders. The mayor and administrators are to be elected on the first Monday of November biennially. On the second Monday following their election “the council shall hold its first meeting in the city hall, at which the mayor and administrators of department elect, having presented their certificates of election and qualification, as herein provided, shall enter upon the discharge of their duties as specified in this act, and their predecessors shall turn over to them the books, papers,” etc.

By express provision of section thirty -one it is made the duty of “the council at its first regular meeting after its induction into office, or as soon thereafter as practicable, to elect a secretary. * * •* Also a city attorney, learned in the law, etc. * * * He shall hold his office for a term of two years,” etc: * * * That the intention of the law is, the city attorney must be elected biennially by the council, can not be doubted,- and that his term of office is two years is clearly stated in the charter.

The theory of plaintiff is that the term began first in April, 1870, when the city government was organized under the charter approved sixteenth March, 1870. Therefore the first term expired in April, 1872, the second in April, 1874, and the third will expirein April, ¡876. Consequently, when George S. Lacey, who was appointed on thirteenth April, 1874, resigned, a vacancy was created which, under Revised Statutes, section 1577, the Governor properly filled in appointing Walsh, December 5, 1874. The difficulty about this theory is, the council can only elect a city attorney for the first term, and after that can not exercise the power of election, which the statute doubtless intended it to employ biennially, because in the precise language of section thirty-one, creating the office, it is made the duty of “ the council at its first regular meeting after its induction into office, or as soon thereafter as practicable,” to elect a city attorney,- and under section six the first regular meeting is fixed on the second Monday following the day of the election of the council, to wit: the third Monday of November. Under the law the council, therefore, can only elect a city attorney on the third Monday of November, or as soon thereafter as practicable; and unless the term expires biennially at that time, how can this duty be performed by the council ?

Construing all the sections together with a view to give effect, if possible, to every part of the law, we conclude that the government established when the charter went into operation, in. April, 1870, was a temporary organization, and that the permanent organization began after the election of the mayor and administrators on the first Monday of November, 1870; also, that the language fixing the terms of the various offices was used with reference to the permanent organization of the city government.

The term of office of the mayor and administrators began on the first Monday of November, and continued but two years. That of the city attorney, the surveyor, and the recorders began on the third Monday of November, being at the first regular meeting of the council after its induction into office, at which time the law required these offices to be filled by an election for two years. Under this construction full effect can be given to that provision of the charter making it the duty of the council to elect a city attorney at the first regular meeting after its induction into office. This could not be done if the term of office began with the temporary organization in April, 1870, and continued for two years. Where the law makes it the duty of the council to perform an act at a certain regular meeting occurring on the third Monday of November biennially, the presumption is there was contemplated a circumstance which shall renderthe act necessary, and in this case that circumstance was the contemplated vacancy occurring in the office of city attorney by reason of the expiration of the term thereof. The law clearly contemplated a vacancy and the beginning of a new term at the time it required .the council to elect a city attorney for a term of two years.

It would be absurd to say that the law intended the council to perform a duty at a particular time biennially and at the same time meant that that duty could not then be performed. The council could not elect a city attorney at the first regular meeting after its induction into office so that he could hold his office for two years, unless it was the beginning of a term. And as before remarked, it could not elect at all if the theory of plaintiff be correct, that the term of said office expires biennially in April; because there would never be a vacancy the council could fill at the first regular meeting after it was elected and inducted into office.

Judgment affirmed.


author: Wylx, J.

text:
    No. 5562.
    Amelia Simoneaux, Wife of Emile E. Lauve, v. Edgar P. Helluin, Sheriff, et al.
    In this case it can not be doubted that the plaintiff had the right to manage her plantation, which was paraphernal property, and that a mandate having for its object the management thereof has a lawful object. Therefore, as there is no law forbidding the plaintiff from appointing her husband an agent to aid, her in the administration of her plantation, it must be concluded that she had the right to do so.
    The thing seized being raised on the plantation of plaintiff, which she administered, aided by her husband as agent, it follows that it was her separate property, and not liable to seizure by her husband’s judgment creditors.
    APPEAL from the Fifteenth Judicial District Court, parish of Assumption.

      Beattie, J. LeBlanc and Gwion, for plaintiff and appellee. B. N: and William Sims, for defendant and appellant.
   Wylx, J.

Mrs. John A. Sigur sued plaintiff and her husband in July, 1873, for $1183 60, praying judgment in- solido against them for said sum. In October, 1873, the suit was discontinued as to plaintiff, and judgment for the amount claimed was rendered against her husband, Emile E. Lauve. Execution issued in December following on this judgment, and twenty hogsheads of sugar, raised on the plantation of plaintiff, were seized by the sheriff. Thereupon the plaintiff sued out an injunction, claiming the sugar as the fruits'of her paraphernal property, the plantation, administered by herself. The court maintained the injunction and the defendant, Mrs. Sigur, who was the seizing •creditor, has appealed.

It is admitted that the plantation on which the sugar was raised was the paraphernal property of the plaintiff. But two questions are presented for decision:

First — Could the plaintiff, during the existence of community, administer her paraphernal property, the plantation, through her husband as agent, her health being such that it was impossible for her to take personally the management or supervision of the plantation ?

Second — Did the plaintiff during the year 1873, when the sugar in ■question was raised, administer her plantation, on which she resided, through her husband as agent?

Both of these propositions from the law and the evidence in this case we feel warranted to answer in the affirmative.

The only limitation the law imposes in the contract of mandate is found in article 2987 of the Revised Code, which provides that: “The object of the mandate must be lawful and the power conferred must be one which the principal himself has the right to exercise.”

In the case at bar no one doubts that the plaintiff had the right to manage her plantation, and that a mandate having for its object the management thereof has a lawful object. As there is no law forbidding the plaintiff from appointing her husband an agent to aid her in the administration of her plantation, we conclude that she had the right to do so. 2 An. 890; 14 An. 68; 17 La. 426.

After examining the evidence very carefully, we have come to the conclusion that the finding of the court a qua is correct in regard to the fact that the thing seized was raised on the plantation of plaintiff, which she administered, aided by her husband as agent. It was therefore her separate property, and not liable to seizure by her husband’s judgment creditor, Mrs. Sigur.

Judgment affirmed.


text:
    No. 5541.
    State ex rel. Mrs. Pecot et al. v. Parish Judge of the Parish of St. Mary.
    The respondent refuses to grant to relators a suspensive appeal on the ground that their-intervention not having been ñled by leave of the court, or served or put at issue, did not authorize a judgment in their favor or against them from .-which they could appeal. In this there was error on the part of the judge a quo. If the relators were not parties to-the suit, it was because the judge erroneously refused to allow them to intervene. But third parties may intervene when they allege, as they do in this case, that they have been aggrieved by the judgment.
    Application for a mandamus to be directed to the parish judge of the parish of St. Mary, B. B. Mentí!.

      JD. Cajprey, for relators. JH. B. Mentz, in propria persona.

   Taliaferro, J.

The relators complain that they were refused a suspensive appeal in a certain case pending in the parish court of the parish of St. Mary, by the parish judge of that parish. A rule nisi was granted and the respondent answers: That he refused to grant the appeal on the ground that the relators' were not parties to the suit; that their intervention not having been filed by leave of the court, or served or put at issue, did not authorize a judgment in their favor, or against them, from which they could appeal. They had no right to appeal from a judgment against the defendant, their intervention not having been passed on.

We think there was error on the part of the judge. The relators, it appears, were not parties to the suit because the judge erroneously, as we think, refused to allow them to intervene. But third parties may intervene when they allege they have been aggrieved by the judgment. C. P. article 571. The relators aver that they have been aggrieved by the judgment.

It is ordered that the rule be made absolute,.and that the parish judge of the parish of St. Mary do grant the relators a suspensive appeal as prayed for, upon their furnishing bond and security according to-law. It is ordered, further, that the respondent pay costs of these proceedings.


text:
    No. 3890.
    Payne & Harrison v. Mrs. H. A. Stackhouse.
    The difficulty in this case arises from the loss of a counter letter or private agreement existing between the plaintiffs and defendant, or rather from their disagreement in regard to the contents thereof. 0?he bills of exceptions as to the parol proof of the contents of the counter letter or written agreement between the litigants herein were not well taken, a sufficient foundation having bden laid to authorize the admission of secondary evidence.
    An unreasonable contract is not to be supposed probable. It is not to be presumed that plaintiffs, who were merchants and business men, would have consented to advance large sums of money to cultivate' a plantation for defendant’s benefit-,, and themselves incur all the risks and losses attending the enterprise if not successful.
    from the Fourth District Court, parish ot Orleans. Theard, J.

      Breaux, Fenner & Mall, for plaintiffs and appellees. O. Foselius and Alfred Phillips, for defendant and appellant.
   Wyly, J.

The defendant appeals from a judgment against her for $39,652 20, on an account of the plaintiffs against the Baratarla plantation, alleged to belong to her.

The facts are, that this plantation belonged to J. W. Ross, the first husband of defendant; that from his succession the plaintiffs, who were creditors for $15,617 72, were induced to buy said property in the name of J. U. Payne, one^ of the copartners, at the request and for account of defendant, then the surviving widow; that the title was so taken merely for the purpose of securing the claim of plaintiffs, with the understanding that they were to cause the title to be transferred to defendant, then Widow Ross, as soon as their claim and all the subsequent advances they agreed to make to carry on said “Barataría plantation” were paid to them. The planting operations seem not to have been successful; instead of paying-out, the debt largely increased, so that when the plaintiffs subsequently, at the request of defendant, caused the title to be transferred to Win. Stackhouse, now her husbaud, a large debt remained on the books of plaintiffs against the Barataría plantation, embracing not only advances for the administration and cultivation of said plantation, but large sums furnished to pay the personal expenses of defendant and her family, such as medical bills, traveling expenses, tuition and board bills of her children, and also the cost of a tomb for Mr. Ross, her deceased husband.

The court was not satisfied that the evidence was sufficient to establish the liability of defendant based on her alleged assumption to pay the debt of her deceased husband, and, striking from the account the amount thereof, to wit: $15,617 72, rendered judgment against the defendant for the balance due for advances made subsequent to the purchase of said “Barataría plantation,” to wit: $39,652 20. As appellees have not prayed an amendment of the judgment, the ruling of the court in this regard can not be revised.

The difficulty in the case arises from the loss of the counter letter or private agreement existing between the plaintiffs and defendant, or rather from their disagreement in regard to the contents thereof. And here we will remark that the bills of exception as to the parol proof of the contents of the counter letter or written agreement between the litigants herein were not well taken, a sufficient foundation having been laid to authorize the admission of secondary evidence.

Both parties admit that there was a writing between plaintiffs and defendant, wherein it was stated that the purchase of said plantation was for defendant’s benefit; also that said plantation was to be cultivated, and when plaintiffs were paid the amount of their existing claim, and also the amounts subsequently advanced by them, the title was to be conveyed to defendant. But the defendant contends that she was not to be responsible for any of the losses arising in the administration of the plantation; that if the crops were sufficient to pay out, she was to have the benefit; if they failed, she was to incur no personal responsibility.

After examining the evidence carefully we have come to the conclusion that this theory or version placed on the contract by the defendant can not be accepted by the court as the correct one. We think that the evidence of J. U. Payne, in regard to the nature of the contract, is more reasonable, and that plaintiffs’ theory is the correct one. The testimony of this witness, taken with the other proof in the record, satisfies us, as it did the judge a quo, that the real purchaser from the succession of J. W. Ross was the defendant; that J. U. Payne was merely a party interposed, and that the effort to make the.plantation pay out the debt existing against it on the books of the plaintiffs was in behalf of the defendant; that as she was to get the benefit, if the administration of the plantation was successful, she must be responsible for the losses, if unsuccessful. It would be unreasonable to suppose that plaintiffs, who were merchants and presumably business men, would have consented to advance large sums of money to cultivate the “Barataría plantation ” for defendant’s benefit, and themselves incur all the risks and losses attending the enterprise.

Judgment affirmed.


author: Taliaeeeeo, J.

text:
    No. 3925.
    Sam Smith & Co. v. City of New Orleans.
    There is no law that authorizes plaintiffs to claim interest on the hills issued by the city as currency; nor is there any that sanctions their claim to interest on the warrants held by them, which, as well as the city notes, they have funded.
    The assent of the Mayor that the plaintiffs should receive bonds in lieu of the securities funded at their face value, and reserve for judicial investigation their claim for interest, was not binding on the city.
    The rights of the plaintiffs were fixed by a statute. They were authorized to exchange securities that bear no interest for bonds of like amounts that do bear interest. This they have done, and can claim no more.
    APPEAL from the Seventh District Court, parish of Orleans. Col-lens, J.

      L. B. Simonds and Alexander Walker, for plaintiffs and appellees. Samuel P. Blame, assistant city attorney, for defendant and appellant.
   Taliaeeeeo, J.

The plaintiffs sue for legal interest on a large amount of what was known as city money,” held formerly by them, and which they exchanged for bonds of the city, bearing seven per cent, interest under the provisions of an act of the Legislature, approved February 27, 1869, entitled “An act to enable the City of New Orleans to fund its floating debt and to liquidate its indebtedness.” They aver that they funded the said obligations of the city under the express understanding that in doing so they reserved their right to claim interest on the notes or obligations so held by them, and to have their claim submitted for judicial determination — that this was assented to by the Mayor and the Administrator of Finance. They claim five per cent, interest on the amount of the obligations of the city held by them, from the first of January, 1869, to the second of July, 1870,, the time at which they were funded. They further sue for interest at five per cent, per annum on $52,614 93, amount of warrants of the Controller drawn upon the City Treasurer. The interest claimed on the amount of warrants in like manner funded is for the same period as in the former case — the same reservation being made of the right to claim interest.

The answer is a general denial.

There is in the record a bill of exceptions, taken to the ruling of the court admitting the plaintiffs to file a supplemental petition. The conclusions we have arrived at on the merits of this case render it unnecessary to pass upon the bill of exceptions. '

The case was twice tried in the court below, and each time the judgment rendered was in favor of the plaintiffs. The defendant has appealed. We think the judgment erroneous. We are unable to find any warrant of law that authorizes the plaintiffs to claim interest on the bills issued by the city as currency, and we are equally at a loss to find any that sanctions their claim to interest on the warrants held by them, which, as well as the city notes, they have funded. The statute authorizing the city to fund its debt is entirely silent as to interest in either case. The assent of the Mayor that plaintiffs should receive bonds in lieu of the securities funded at their face value, and reserve for judicial investigation their claim for interest, was not binding on the city, and conferred no right upon the plaintiffs to recover interest. The rights of the plaintiffs seem fixed by the statute. They are authorized to exchange securities that bear no interest for bonds of like amounts that do bear interest. This they have done, and they are precluded from urging any further demands.

It is therefore ordered that the judgment of the district court be annulled and reversed. It is further ordered that there be judgment in favor of the defendant, the plaintiffs paying costs in both courts

Rehearing refused.


text:
    No. 3952.
    Mr. and Mrs. Lefranc v. City of New Orleans.
    It lias been decided by tbis court that the express grant of authority in article 118 of the constitution, to exempt from taxation property actually used for church, school, or charitable purposes, by implication prohibits the fieneral Assembly from exempting property not actually used for such purposes.
    The exemption horn taxation of property used for certain purposes, expressly granted in the constitution, or in a law specially authorized by the constitution, means an exemption from all taxation, municipal as well as State. It means a complete, and not a partial exemption, and this limitation must apply to the power of taxation previously delegated to the municipal corporations of the State.
    from the Sixth District Court, parish of Orleans. Gooley, J.

      G. Schmidt, for plaintiffs and appellants. S. P. Blanc, assistant city attorney, for defendant and appellee.
   Wyly, J.

In this controversy the important question is whether plaintiffs’ property situated on Bourbon street, actually used as a school house for the purpose of educating female children, is liable tothe taxes of the city of New Orleans for the year 1869.

Under the charter of the city existing prior to the constitution of 1868, and in force when the taxes in question were levied, property actually used for a school was not exempt from taxation, unless it exclusively belonged to an incorporated or a religious society. Therefore the defendant contends thát the property of plaintiffs is not exempt from the taxes of 1869.

On the other hand, it is urged that subsequent to the charter of the city denying exemption from taxes to plaintiffs’ school house, the constitution of 1868 was adopted, which provides, article 118, that “taxation shall be equal and uniform throughout the State. All property shall he taxed in proportion to its value, to be ascertained as directed by law. Tlie G-eneral Assembly shall have power to exempt from taxation property actually used for church, school or charitable purposes.” ******

And to carry into effect this constitutional provision, the General Assembly on twenty-first October, 1868, prior to the assessment of the taxes in question, passed an act exempting “colleges, school houses and other buildings for the purpose of education, and their furniture, apparatus and all equipments, and the lots thereto appurtenant and used therewith, so long as the same shall be actually used for that purpose.” It is urged that this law, in force at the time the taxes complained of were levied, exempted plaintiffs’ school house from taxation by the city. It has been decided by this court that the express grant of authority in article 118 of the ebnstitution, to exempt from taxation property actually used for church, school or charitable purposes, by implication prohibits the General Assembly from exempting property not actually used for such purposes. Morrison v. Larkin, tax collector, 26 An.

Assuming that the statute of 1868, exempting all the property from taxation that the constitution authorizes, had as much effect as if the exemption had been mentioned in the constitution itself, the question is, did this exemption relieve the property of plaintiffs from subsequent municipal taxation under the city charter previously granted, which contained no such exemption ?

We think an exemption from taxation of property used for certain purposes, expressly granted in the constitution, or in a law specially authorized by the constitution, means an exemption from all taxation, municipal as well as State; that when the people, speaking through the constitutional convention and through the Legislature, declare that all property actually used for church, school or charitable purposes, shall be exempt from taxation, they mean a complete, not a partial, exemption from the burden of taxation; also, that this limitation shall apply to the power of taxation previously delegated to the municipal corporations of the State. Therefore we conclude that the school house of the plaintiffs was not liable to the taxes of 1869, assessed by the city of New Orleans.

It is therefore ordered that the judgment herein in favor of defendant be annulled, and it is decreed that there be judgment for plaintiffs perpetually injoining the defendant from collecting the taxes assessed against their property for the year 1869, also annulling the judgment obtained by the defendant for the amount of said taxes. It is further ordered that the defendant pay costs of both courts:

Rehearing refused.


author: Taliafereo, J.

text:
    No. 5670
    Lovel Ledoux, Administrator, v. J. E. Breaux, Sheriff, et als.
    After the decease of his wife, the plaintiff, administrator of community property, gave to A. Ledoux his note for a community debt, and mortgaged a tract of land belonging to the estate to secure its payment. The executrix of A. Ledoux obtained judgment, issued execution, and caused a seizure to be made. The plaintiff, as administrator, injoins the sale. The record shows that the estate has not been settled up 5 there are debts outstanding against it besides the one for which the administrator gave Ms note. Under such circumstances, the seizing creditor could expect only to he paid concurrently with other creditors of the estate in the due course of administration. His proceedings are illegal and irregular.
    APPEAL from the Seventh Judicial District Court, parish of Pointe Coupée. Hewes, J.

      John Yoisl and C. E. Schmidt, for plaintiff and appellee. 'Edward Phillips, for defendant and
   Taliafereo, J.

The plaintiff administers the succession of his deceased wife. The property administered is community property. After the decease of the wife the plaintiff gave to A. Ledoux his note for a community debt, and mortgaged a tract of land belonging to the estate to secure its payment. The executrix of A. Ledoux sued upon this obligation and obtained judgment, with recognition of right of mortgage, and thereupon issued execution and caused a seizure to be made. The plaintiff, as administrator, injoins the sale of the property seized on the ground that the debtor in execution has no right in the property seized, except what may remain to him after the settlement of the community affairs j that the property of the succession can not he subjected to the separate debts of the survivor in community.

The defendants answer that their debt is a community debt, and the whole community property is bound for its payment, and that neither the administrator, heirs nor legal representatives have any interest therein until all the community debts are paid. There was judgment in favor of the administrator, perpetuating the injunction, and the defendants have appealed.

The proceeding seems to be irregular. It appears that the succession has not been settled up; that there has been no final account; that there are debts outstanding against it besides the one for which the administrator gave his note and executed the mortgage which the defendants are seeking to enforce. It appears that after executing the note and securing its payment by the mortgage, the administrator took some proceedings toward a partition of the land, and caused it to he subdivided into seven parts or lots, and the defendants released the mortgage upon a portion of the land, restricting it to the lots or portions intended to fall by the partition to the plaintiff. But no partition was ever effected, nothing further having been done in regard to it than the filing of a petition praying for a division of the property. The heirs were minors, and an order for the convocation of a family meeting was rendered, and beyond that no legal steps were taken in the matter.

The defendant in injunction could expect only to be paid concurrently with other creditors of the estate in the due course of administration. The proceedings taken are illegal and irregular, and the decree of the lower court perpetuating the injunction we regard as having been properly rendered.

Judgment affirmed.


text:
    No. 3868.
    The British and American Steamship Navigation Company, Limited, et al. v. Sibley, Guion & Co. et al.
    This is a claim for damages for the illegal attachment of the plaintiffs’ vessel in the suit of Sibley, Griion & Co. v. Fernie Brothers & Co. There was no just ground for seizing this vessel as the property of Fernie Brothers & Co., but there is some difficulty in fixing the damages to which plaáfitiffs are entitled. The true standard seems to be the expenses incurred and profits lost as the direct consequence of the seizure and detention and as far as they are ascertainable on the part of the plaintiffs.
    from the Sixth District Court, parish of Orleans. Cooley, J.
    plaintiffs and appellants. Campbell, Spofford & Campbell, for defendants and appellees.
   Howell, J.

The plaintiffs claim $30,000 damages for the illegal attachment of their vessel in the suit of Sibley, Guión & Co. v. Pernie Brothers & Co. in the Fourth District Court of New Orleans.

The defendants' excepted that there is no such corporation as the plaintiffs, and answered that Fernie Brothers & Co., of Liverpool, with the purpose of defrauding their creditors and obtaining a fictitious credit, conveyed to the plaintiffs’ company certain ships, which sailed under registers in their names, and were consigned to a firm in New Orleans, of which they, the Fernies, With other firms were members; that the control of said ships was in said firms, and no evidence of any title was carried by said vessels in the name of said company; that said Fernie Brothers & Co. obtained a large credit upon the apparent ownership of said' vessels, including the one claimed by plaintiffs, who are chargeable with the frauds of said firm,.and that if there was a transfer of said vessel to the plaintiffs there was no delivery. From a judgment in favor of defendants the plaintiffs have appealed.

The plaintiffs have satisfactorily established their incorporation and their ownership of the vessel which was attached by the defendants. They acquired the vessel before the claim upon which the attachment issued exis'ed, and have sufficiently shown the various antecedent transfers. After the attachment, evidence of plaintiffs’ ownership was exhibited to the defendants and they released the seizure. We think the evidence shows that there was no just ground for seizing this vessel as the property of Fernie Brothers & Co. at the date of the attachment. The defendants were informed at the time that the vessel belonged to plaintiffs, and that the register which they examined in the office of the British consul at New Orleans was not evidence of ownership, while there was in said office a mercantile navy list and maritime directory showing the plaintiffs to be the owners. We are satisfied that they were the owners at the date of the seizure; but we have some difficulty in fixing the damages to which' they are entitled. The true standard seems to us to be the expenses incurred and profits lost in consequence, directly, of the seizure and detention, which should be ascertainable on the part of the plaintiffs. They li&we shown an item of $213 for drayage of goods returned to shippers, telegrams, etc., and of $500 legal expenses. In addition to these items they are entitled to the expenses of the officer and crew list,” extra wharfage, etc., during the seizure, which, from the evidence, we will fix at $100 per day for fifty-two days, $5200. Some witnesses speak of $200 per day for what is incorrectly called demurrage, that is, indemnity for the privation of the use of the ship during her detention; but when questioned as to the actual expenses during that time, about half that sum is stated. They are also entitled to the difference between the amount of the total passenger and freight list and the running expenses, but the evidence on this point is even more vague than on the former. With the view, however, of closing the litigation •we will deduct the expenses fixed by two witnesses at $200 per day for twenty days, $5000 from the amount for freight, $11,381 30 which it is said the vessel could have carried in addition to the quantity carried after the release, leaving the sum of $6381 30. These three items-($213, $500, $5200) and $6381 30 make the sum of $12,294 30 as the damages sustained. We are aware that these figures are not based on absolute data, but the plaintiffs have not furnished the requisite proof for any better calculation, and we think they have suffered damage to this amount by the wrongful acts o'f the defendants.

It is therefore ordered that the judgment appealed from be reversed, and that plaintiffs recover of the defendants, Sibley, Guión & Co., m soKdo the sum of $12,294 30 and all costs in both courts.'


text:
    No. 5612.
    Mrs. Emily Heyman v. The Sheriff of East Feliciana et al.
    The judgment of separation "between plaintiff and her husband was a nullity because it was not executed by a giving in payment or by a bona fide non-interrupted suit to obtain payment as required by article 2428 of the Revised Code, nor was it promptly published as required by article 2429.
    The conveyance under which plaintiff claims the property seized is covered by neither of the three cases mentioned in article 2446; and in the language of article 1790, such contract between husband and wife is forbidden.
    APPEAL from the Fifth Judicial District Court, parish of East
    and appellant.
   Wyly, J.

On twelfth July, 1856, Mrs. Emily Heyman obtained judgment of separation of property and for one thousand dollars against her husband, on the admissions contained in his answer and the testimony of one witness, to the effect he was in embarrassed circumstances.

In May, 1853, this judgment was published and execution issued, under which the plaintiff bought a lot of ground on the nineteenth December, 1858, crediting the judgment four hundred and thirty-seven dollars and forty-six cents.

On twelfth February, 1869, more than twelve years from the rendition of the judgment, it was revived by decree of court on a petition, the service of which was accepted by A. M. Heyman on second February, 1869.

On twenty-first October, 1869, Heyman sold to his wife a lot of ground and buildings thereon in the town of Clinton for two thousand dollars, one thousand and -eighty-five dollars thereof in settlement of the balance due on said judgment of his wife against him, and nine hundred and fifteen dollars thereof on the assumption of his wife to pay certain creditors of the seller, her husband, and it is conceded these creditors were paid.

On twenty-ninth September, 1873, L. Bloom & Co. obtained judgment against A. M. Heyman on his note dated July 19, 1872; and on this judgment execution issued, and the house and lot in Clinton, conveyed by Heyman to his wife, as aforesaid, were seized, whereupon she sued out an injunction and prayed to be decreed the owner of the property.

The court dissolved the injunction and condemned Emily Heyman to pay L. Bloom & Co. forty-two dollars and sixty-three cents general damages, and fifty dollars special damages, attorney’s fees.

From this judgment the plaintiff appeals.

The defense urged is as follows:

First — The pretended judgment of separation of property is a fiction , a mere voluntary separation, the nullity of which can be invoked by any one at any time. 6 An. 730; 7 An. 92; 2 An. 483 ; 4 An. 65.

Second — It was not followed úp by a prompt and bona fide execution, an uninterrupted suit to obtain payment, as required by article 2428 Revised Code. See also 1 R. 431; 4 An. 513; 11 An. 696; 12 An. 193.

Third — The money demand granted in said judgment expired by the prescription of ten years, no revival of said judgment having been obtained within ten years from its rendition, as required by article-3547 of the Revised Code. See, also, 21 An. 295.

Fourth — The sale of the property in controversy by Heyman to his wife was an absolute nullity, being in contravention of a prohibitory law. Revised Code, articles 1790,2446 ; 21 An. 466; 12 An. 173; 18-An. 27; 4 An. 65.

It is true the defendants, L. Bloom & Co., judgment creditors of the-husband of plaintiff long after the separation of property, can not-attack the judgment on the ground that it was collusive and rendered in fraud of creditors, 24 An. 49; still their seizure can be maintained if the conveyance of the property in question from Heyman to his wife in October, 1869, was an absolute nullity, because made in contravention of a prohibitory law.

Article 1790 of the Revised Code provides that: Besides the general incapacity which persons of certain descriptions are under, there are others applicable only to certain contracts, either in relation to the parties, such as husband and wife, tutor and ward, whose contracts with each other are forbidden, or in relation to the subject of the contract, such as purchases by the administrator of any part of the estate which is committed to his charge, and the incapacity of the wife, even with the assent of her husband, to alienate her dotal property or to become security for his debts. These take place only in the cases specially provided by law, under different titles of this code.”

Article 2446 of the Revised Code provides that: “A contract of sale between husband and wife can take place only in the three following cases:

First — “When one of the spouses makes a transfer of property to the other, who is judicially separated from him or her, in payment of his or her rights.

Second — “When the transfer made by the husband to the wife, even though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.

Third — “When the wife makes a transfer of property to her husband in payment of sums promised to him as dower.”

Under these articles of the Revised Code, we are constrained to hold that the conveyance in October, 1869, of the property in question from Heyman to bis wife for two thousand dollars, one thousand and eighty-five dollars thereof in discharge of the balance due on her judgment against him, and nine hundred and fifteen dollars thereof in the assumption of the wife to pay certain creditors of her husband, was an absolute nullity.

The conveyance is covered by neither of the three cases mentioned in article 2446, and in the language of article 1790 such contract between husband and wife was “forbidden.” And this, view of the law was taken by this court in Spurlock v. Mainer, 1 An. 302; a case directly in point, and the ruling has prevailed ever since.

We will also remark that the judgment of separation was a nullity, because it was not executed by a giving in payment or “ by a bona fide non-interrupted suit to obtain payment,” as required by article 2428 of the Revised Code, nor was it promptly published as required by article 2429.

It is therefore ordered that the judgment herein be affirmed, appellant paying costs of appeal.


text:
    No. 5633.
    Thomas H. Hurt v. Mrs. A. V. Graves.
    The land in controversy having been sold as the property of B. "W. G-raves, and his legal representative — tho curator or administrator of his succession — having heen cited to answer both the original and amended petitions claiming said land, and issue joined thereon as to him, the judgment for the land according to the corrected description was proper, but the judgment for the rent was erroneous. The curator was not the trespasser or actual possessor, and the minors could not he held liable for the act of trespass of their mother, now deceased, as well as their father. They could only accept with benefit of inventory, and take the succession of their mother after its debts were paid. But her succession was not before the court, nor was any one who could stand in judgment for such a claim against her.
    APPEAL from the Thirteenth Judicial District Court, parish of Madison.

      Sough, J. S. D. & W. Farrar, for plaintiff and appellee. A. W. Roberts, for defendant and appellant.
   Howell, J.

This is a petitory action, in which plaintiff seeks to recover a tract of land described in his petition and purchased by him at sheriff’s sale, which he alleges was taken possession of and held by the defendant against his consent and wish, and also the rent thereof and damages during the wrongful occupancy of the defendant, who answered that the said land, constituting a plantation, is the property of the succession of her deceased husband, and called the administrator in warranty.

Before the administrator made appearance the defendant died, and on motion of plaintiff's counsel the case was revived in the name of her legal representatives. ■

The administrator of the deceased husband answered, admitting that when he qualified he found the defendant in possession, and he permitted her, as widow in community, to remain so until her death, and that the plantation is now in the possession of her heirs, and he denied that the plaintiff lias any right to said property.

■ R. L. Graves, the tutor of the minor children, also answered, adopting the answer of the defendant, and denying that either the widow (the defendant) or himself, in his representative capacity, was ever in possession of the1 property claimed by plaintiff.

' Whereupon, the plaintiff, finding the property erroneously described in the sheriff’s deed, filed an amended petition, giving a corrected description thereof, and explaining how the error occurred, and prayed that R. L. Graves, individually, as one of the heirs and as tutor of the minor heirs, alleged to be then in possession, be cited to answer the amended petition; that he be declared owner of the land described in the amended petition ; that the deed of the sheriff to him be corrected, and, in other respects, prayed as in the original petition. Citation on the amended petition was issued to and served only on the tutor of the minors and the curator of the deceased husband and father. A judgment by default was taken “ against defendant, on failure to answer the amended petition,” and confirmed “on proof in favor of plaintiff.” This judgment was rendered against “defendant’s” correcting the description of the land, according to the adjudication to plaintiff, and condemning the “ defendant ” to pay the sum of five hundred dollars per annum for the rent of said property for four years, and at the same rate until possession is given to plaintiff), for which a writ was allowed.

The plaintiff entered a remittitur for the rent of the last two years mentioned in the judgment after it was signed, and the tutor of the minor heirs appealed. His counsel assigns as error “that he was the only defendant, and was cited only as tutor, not as possessor individually; that minors can not be held liable as claimed; that the plaintiff, by the amended petition, abandoned the suit for rent on the property first described, and does not claim it on the other; that the judgment for rent against him as tutor, he being the only person cited, is in error; that the question of correcting the deed could not be tried without proper parties; that it was necessary to make the sheriff a defendant ; that defendant could not correct the deed of the sheriff; that motion for a new trial was overruled when plaintiff admitted the judgment to be for too much ; that the remittitur could not be filed after the judgment was signed, and if filed could not affect the motion for a new trial.”

The land having been sold as the property of R. W. Graves, and his legal representative (the curator or administrator of his succession) having been cited to answer both petitions, and issue joined thereon as to him, we think the judgment for the land, according to the corrected description, was proper ; but it seems clear that the judgment for the rent, as rendered, is erroneous. The curator was not the trespasser or actual possessor, and the minors could not be held liable for the act of their mother, as complained of. They can only accept with benefit of inventory, and take the succession of their mother after its debts are paid. But her succession was not before the court, nor was any one who could stand in judgment for such a claim against her.

It is therefore ordered that the judgment for rent be reversed, with costs in favor of the tutor, and that in other respects it be affirmed. Appellee to pay costs of appeal.


text:
    No. 5632.
    Christopher Hunt v. John Mayo.
    Under the act of 1868, Revised Statutes 2127, .the jury must he drawn by the parish judge, clerk and sheriff. The drawing for the term was made by the parish judge, clerk, recorder and the sheriff. Therefore, all the officers required by law to draw the panel were present and officiated in the act. The placing in the order of the judge for the drawing at that term, the additional officer — the recorder — was, doubtless, an oversight, and may be regarded as surplusage. The objection to the drawing has no weight.
    APPEAL from the Ninth Judicial District Court, parish of Rapides. OSborn J. case.

      J. JBoiuman, for plaintiff and appelA. JHunter, for defendant and appellant.
   Taliaferro, J.

This is a suit for slander and defamation of character. The plaintiff, who is the pastor of a Methodist church at Alexandria, complains that, on a public street in that town, he was met by the defendant, who wantonly and maliciously abused and slandered him, by repeatedly calling him a damned thief,” and applying to him other slanderous epithets in the presence and hearing of a number of persons, one of whom is a member of the church presided over by the plaintiff. He claims damages against the defendant for the sum of two thousand dollars.

The defendant puts in a general denial, and alleges that if on the occasion referred to in plaintiff’s petition the defendant did use harsh language in reference to the plaintiff, he was justified in so doing by having previously received insult and abuse of an outrageous character from the plaintiff.

The case was tried before a jury, who found a verdict against the defendant for one thousand dollars, from which he has taken this appeal.

An exception was taken to the panel of jurors drawn for the May term of the district court. The objection is that under the act of 1868, Revised Statutes 2127, the jury must be drawn by the parish judge, clerk and sheriff; that the drawing for the said term was made by the parish judge, clerk, recorder and sheriff. The objection, we think, has no weight. All the officers required by law to draw the panel for the May term were present and officiated in the act. The placing in the order of the judge for the drawing at that term the additional officer, the “recorder,” was, doubtless, an oversight of the judge, and may be regarded as surplusage. The objection was properly overruled.

There are two other bills of exception in the record, which it is unnecessary for us to pass upon.

We have in the record before us a mass of testimony taken on the trial of the case in the court below, which displays the existence of much acrimony of feeling among the friends of the parties to this suit, who are colored men of respectable standing in the community in which they reside. We find nothing in the evidence and an attentive review of the case that authorizes us to alter the verdict and judgment of the lower court.

Judgment affirmed.


author: Taliaeerro, J.

text:
    No. 5655.
    Mrs. Mary E. Halsey v. P. S. Sandidge and J. A. Payne.
    The testimony of <T. H. Halsey, a brother of the plaintiff, was offered in evidence to show that a certain piece of land belonged to her at the time of her marriage to her present husband, one of the defendants in this case, and that she acquired it at a sheriff’s sale. The testimony was objected to on the part of the defense on the ground that it was an attempt to establish, by parol, title to real estate, which requires written evidence. The bill of exception to the admission of such proof was well taken.
    APPEAL from the Fifth Judicial District Court, parish of East Baton Rouge.

      Dewing, J. It. T. Posey, 8. P. Greves, J. H. Halsey, for plaintiff and appellee. J. & G. W. Burgess and Andrew 8. Herron, for J. A. Payne, defendant and appellant.
   Taliaeerro, J.

In this case the plaintiff, who is a married woman, sues her husband and James A. Payne in solido to recover from them two promissory notes, each for the sum of one thousand dollars, which notes she alleges are her separate paraphernal property, placed by her said husband in the hands of the other delendant, James A. Payne, as collateral security for the payment of one thousand dollars owing to said Payne by her husband, the said P. S. Sandidge. She prays that the said notes be restored to her, or, if disposed of by the defendants, that she have judgment for the amount of the notes. Interrogatories •on facts and articles were propounded to the defendants, each of whom answered them at great length. A bill of exceptions was reserved to the admission of the testimony of Sandidge, on the ground that he, the husband, could not testily against Payne in favor of his wife, Mrs. Sandidge. This testimony, however, was afterward stricken out.

The plaintiff alleges that the two notes sued upon were received by her in part payment for a tract of land, her separate property, sold by her to John Yoist, of Pointe Coupee, in the year 1870, the land having been acquired by her previous to her marriage with the defendant, Pleasant S. Sandidge. J. H. Halsey, a brother of the plaintiff, Mrs. Sandidge, testified that the land sold by Mrs. Sandidge to Yoist belonged to her at the time of her marriage to her present husband, and that she acquired it at a sheriff’s sale. The testimony of Halsey was objected to on the part of the defense, on the ground that it was an attempt to establish by parol, title to real estate, which requires written evidence. A bill of exceptions was reserved to the admission of the proof. We regard the action of the plaintiff so far as it is brought against her husband in this case as altogether null and without effect. The exception just noticed was well taken and must be sustained.

It is ordered that the judgment of the lower court which was rendered in favor of the plaintiff against the defendants in solido for $ 1000, be annulled and avoided. It is further ordered that this suit be ■dismissed as of nonsuit, the plaintiff paying costs in both courts.


author: Taliaferro, J. Wyly, J.

text:
    No. 3553.
    Chism & Boyd v. P. J. Lefebre.
    ‘This is a contract about a wall claimed to be in„common. Buckner bought only what bis •vendors could sell. Hot having paid one-half the cost of erecting the wall, they did not own half of it, and could not sell the half thereof. Buckner’s ignorance of the want of title to one-half of the wall in his vendors should not prejudice the plaintiffs, if it operate a hardship to him. His becoming owner of all the premises owned by his vendors conferred no immunity upon him to use the wall as a wall in common, free of charge. He acquired by his purchase only the right which his vendors had to make the wall one in common by paying half the cost of erection. Availing himself, as it seems he has done, of the benefit of the wall, it is but fair he should pay for one-half the expense incurred in building it.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J.

      Randolph, Singleton <& Browne, for plaintiffs and appellants. Bermudez & Claiborne, for Lefebre, defendant and appellee. Gilmore <& Sons, for Buckner, defendant and appellee.
   Taliaferro, J.

The plaintiffs having, as they allege, caused to be •erected on the division line between their property and that of the defendant a substantial and costly brick wall, which the defendant is-now using, and thereby making it a wall in common, and therefore bound to pay the plaintiffs one-half the expense of erecting it, which they set out to be the sum of $760 50, the defendant filed an exception alleging that he is not the sole owner of the property stated to-belong to him; that his coproprietor is the succession of John Lefebre, and until his coproprietor is made a party he is not bound to answer. After this exception was filed in August, 1869, the share of Lefebre, the defendant, in the property, and also the portion of it that belonged to the estate of John Lefebre, were both acquired by H. S. Buckner, who was thereupon made a party defendant, and judgment prayed for by the plaintiff's against him as owner in possession and using the wall as a wall in common. Buckner excepted that he can not be made a party defendant to the suit in the form in which it is attempted. The court sustained the exception and dismissed the suit as to Buckner. The plaintiffs have appealed.

The defendant contends that as between the plaintiff's and Buckner-there is no priority of contract or engagement, and no quasi contract from which liability might result. That he derived no benefit from the disbursements made by the plaintiffs, for the price paid by him included the value of the new wall as it stood at the date of the sale. The benefit, if any, was conferred upon his predecessor in the title. It is-urged also that Buckner had no notice of the plaintiffs’ claim; that this claim or demand of the plaintiff was not recorded, and third parties ought not thereby to suffer. The plaintiffs hold that Buckner’s vendors, not having contributed to the building of the wall, had no-interest in it, and that they could convey no greater interest or right than they had. The plaintiffs say no law requires them to record their-claim; that the wall being a two or three-story wall is not presumed by law to be a wall in common (Civil Code, article 677;) that Buckner-having purchased after plaintiffs instituted suit, had notice of their-claim; that he had no right to suppose the wall was a wall in common, and was bound to inquire of his vendors whether they owned one-half of the wall.

We are inclined to adopt for the most part the reasoning of the plaintiffs. Buckner bought only what his vendors could sell. Not having paid one-half the cost of erecting the wall, they did not own half of it, and could not sell half of it. Buckner’s ignorance of the want off title to one-half the wall in his vendors should not prejudice the plaintiffs, if it operate a hardship on him. His becoming owner of all. the premises owned by his vendors conferred no immunity upon him to use the wall as a wall in common free of charge. He acquired by his purchase only the right which his vendors had to make the wall one in common by paying half the cost of erection. Availing himself» as it seems he has done, of the benefit of the wall, it is but fair he should pay for one-half the expense incurred in building it.

The case before us seems closely in point with that of Winter v. Reynolds, 24 An. 113. There the court said: “The defendant uses the party wall and neither he nor any one else has paid the plaintiff the half of its cost. It would seem that he is liable.” 20 An. 553; 22 An. 114. With these views we think the exception should be overruled and the case remanded for further proceedings.

It is therefore ordered that the exception taken by defendant to the plaintiffs’ right to sue be overruled and set aside. And it is further ordered that this case be remanded to the lower court to be proceeded with according to law, the defendant and appellee paying costs of this appeal.

ON REHEARING.

Wyly, J.

After further examination of the case we have come to-the conclusion that our former judgment herein is correct.

It is therefore ordered that the judgment of this court, rendered on the thirtieth November, 1874, remain undisturbed.


text:
    No. 5666.
    Mrs. S. C. Lane v. Joshua G. Clarke-Heirs of Lane et als. Intervenors.
    The certificate of the clerk of the court a qua as to all the matters in regard to plaintiff, defendant, and the intervenors who have appealed, is sufficiently full. The proceedings as-to the intervenor Bender, who did not appeal, are not material in the controversy between the parties before this court, and their omission from the record can not prejudice or affect the parties.
    The record shows that the citations on the intervenors were served, but before the specified delay expired, and before issue was formed thereon either by default or otherwise, the plaintiff caused the default taken by her. against the defendant to be confirmed and the intervention dismissed. This was irregular and premature. Issue should have been joined.
    APPEAL from the Thirteenth Judicial District Court, parish of Mad-_£1_ ison. Sough, J.

      F. _D. <& W. Farra/r, for plaintiff and appellee. J. W. Montgomery, for defendant and intervenors, appellants.
   Howell, J.

A motion is made to dismiss this appeal on the grounds:

First — That one Bender, who was an intervenor, is not made a party. The record shows that his intervention was dismissed as of nonsuit, and he has not appealed. He therefore has no interest in maintaining the judgment between plaintiff and defendant, and is not a necessary party to the appeal. He is no longer a party to the suit.

Second — The certificate of the clerk is not full and unqualified that the record contains all the testimony adduced, all the documents filed and all the proceedings had on the trial.

It certifies as to all these matters in regard to plaintiff, defendant, and the intervenors who have appealed. The proceedings as to the intervenor Bender, who did not appeal, are not material in the controversy between the parties before this court, and their omission from the record can not prejudice or affect said parties. The motion to dismiss is therefore overruled.

On the Merits.

The intervenors, the heirs of Lane and Ed. Waller, have appealed from a judgment dismissing their interventions as of nonsuit, and assigned for error “ that the district judge permitted their interventions to be filed and ordered to be served; that before citations could be served and returned, the plaintiffs caused their interventions to be dismissed, when no issues or answers were filed either by the plaintiff or defendant.”

The record shows that the citations on the interventions were served, but before the specified delay expired, and before issue was formed thereon either by default or answer, the plaintiff caused the default taken by her against the defendant to be confirmed and the interventions dismissed. This, under the authority of Perkins v. Perkins, 20 An. 257, was irregular and premature. Issue should have been joined.

It is therefore ordered that the judgment appealed from as to the appellees and appellants be reversed, and the cause remanded to be proceeded in according to law. Costs of appeal to be paid by appellees.


author: Ludeling, C. J. Howell, J.

text:
    No. 4665.
    Union National Bank v. William H. Cooley and D. C. Labatt.
    The defense that the indorser of a promissory note was released "by the fact that the hank, without his knowledge or consent, gave up a warrant which had been pledged as collateral security, must be sustained. The indorser contends very properly that he could have made the warrant available, had it been retained and he required to pay the debt.
    from the Sixth District Court, parish of Orleans. Saueier, J.

      Oarleton Hunt, for plaintiff and appellee. JD. O. Labatt and T. J. Semmes, for defendant and appellant.
   Ludeling, C. J.

This is a suit against the indorser of a promissory note, who alleges that he was released by the fact that the bank gave up a warrant, which had been pledged as collateral security, without his knowledge or consent. It appears the warrant had no validity, and, consequently, that the indorser was not in any manner affected by the giving up of the warrant, which had no value.

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

On Rehearing.

Howell, J.

We held in our former opinion that the warrant which had been given as collateral was of no validity, and, consequently, the indorser was not in any manner affected by the giving of it up. It seems, however, that the warrant was valid and had value, and hence the return of it by the plaintiff to the principal debtor without the knowledge or .consent of the indorser or surety was an injury to the latter. He contends, very properly, that he could have made the warrant available had it been retained and he required to pay the debt.

It is therefore ordered that our former decree be set aside; that the judgment against- the appellant, D. C. Labatt, be reversed, and that there be judgment in his favor with his costs.


author: Morgan, J.

text:
    No. 5677.
    Jesse A. Mathews v. Peter H. Kemp et al.
    The judge a quo erred when lie refused the surety tlie right to have the property of the principal discussed, lie having pointed out the same and furnished the necessary money.
    from the Sixth Judicial District Court, parish of St. Helena. F. F. Mussel, acting judge.

      J. M. Wright, for plaintiff and appellee. T. & F. J. Filis, for defendant and appellant.
   Morgan, J.

The suit is upon the following obligation :

“Twelve months after date I, P. H. Kemp, as principal, and T. B. Kemp and S. W. Kemp, as securities, promise to pay Jesse A. Mathews, or bearer, twelve hundred ($1200) dollars for value received.
January 1, 1873.
(Signed) P. H. Kemp,
T. B. Kemp,
S. W. Kemp.

T. B. Kemp and S. W. Kemp pleaded that they were securities only, pointed out property of the principal, and deposited money to have it discussed. There was judgment m solido against them all. T. B. Kemp appeals.

The question we have to determine (all others having been abandoned), is as to the appellant’s plea of discussion. Is he bound as principal, or is he only bound as surety ? It seems to us the question is answered, in terms, by the instrument sued upon. In this view of the case the judgment which refused the surety the right to have the property of the principal discussed, he having pointed out the same, and furnished the necessary money therefor, is erroneous.

It is therefore ordered, adjudged and decreed, that the judgment of the district court as regards the appellant, T. B. Kemp, be avoided, annulled and reversed, and that the case be remanded to be proceeded with according to law, appellee to pay the costs.