author: Miller, J. Nicholls, O. J.

text:
    No. 12,728.
    Fremont F. Frank vs. Edward E. Magee.
    The adjudication carries to the purchaser at' the sheriff’s sale the immovale and all its appurtenances, ineluding its fruits pending the seizure in. the control or possession of the sheriff at the date of the adjudication.
    But the adjudication does not pass to the purchaser an action of damages to the land for trespasses committed or for value of trees converted by the trespasser prior to the acquisition of title by .the purchaser, and in this connection the analogies of the law in reference to the rights of the execution creditor have pertinence. C. P., Art. 656; 30 An. 524, 98á; 32 An. 1045.
    The contract by which the owner confers on another the privilege of cutting wood on the owner’s land does not permit creditors of the owner from seizing the land — least of all, when the creditor seizes under the equivalent of a mortgage with the “pact denon alienando” duly recorded and the seizure terminates the right to cut wood under such contracts. B. S. S. 851, 35é; 31 An. 278,
    |An APPEAL from the Tenth Judicial District Court for the Parish of Avoyelles. Gullom,, J.

      A. V. Coco for Plaintiffs, Appellants.

      Wm. H. Peterman for Defendant, Appellee.
    Argued and submitted Pebruary.il, 1898.
    Opinion handed down March 21, 1898.
    Rehearing refused June 30, 1898.'
   The opinion of the court was delivered by

Miller, J.

The plaintiff appeals from the judgment, dismissing his suit for timber alleged to have been removed by defendant from a tract of land while under seizure, and for damages alleged to have arisen from defendant’s acts in deadening trees on the land, the plaintiff asserting title to the timber, and to recover the damages as the purchaser of the tract of land at the execution sale that followed the seizure.

The plantation, it is claimed by plaintiff, was under seizure from May to December,- 1896, Under the executory process, in the suit of the State on the bond of a delinquent tax collector. The plaintiff purchased at the execution sale on the 26th December, 1896. It is-in proof that the bond was recorded in .1892, and under our law that affected the plantation, then or thereafter acquired by the sheriff with a mortgage in favor of the State for the taxes collected, but not paid over by him, and for which the. State issued the writ and caused the property to be sold at the sheriff’s sale, when plaintiff became the adjudicatee. Prior to the seizure, but while the owner was sheriff and the bond was of record affecting the property seized, the owner by contract with the defendant gave him the privilege of cutting and removing timber from the tract. It is in proof that notwithstanding and during the seizure the defendant cut down a large number of trees growing on the land, deadened others, preparatory to cutting them down, removed the logs made from the felled trees, and a quantity is shown by the record to have been still in his possession and were seized by the sheriff under the sequestration issued by plaintiff in this suit.

The plaintiff’s contention is that his title as purchaser at the sheriff’s sale, in December, 1896, entitles him to all the timber felled and removed by defendant, pending the seizure, and plaintiff maintains that his title carries the right to recover damages caused by the deadening of the trees, and also to recover the value of all timber removed from the land and disposed of by defendant. Thódefendant resists the plaintiff’s demand on the grounds of the contract with the owner of the land authorizing the defendant to cut and remove the timber. It is further contended on his behalf there-was no seizure of the land, and in no point of view, it is insisted,, has the plaintiff, as the purchaser of the land on the 28th of December,- 1896, any claim for damages to the land, or for timber felled' and removed from the land prior to the adjudication to the plaintiff'-

This case was before us on a previous occasion. Frank vs. Magee, 49 An. 1250. Dealing with the petition as presenting different demands without determining that all were well founded, we overruled the exception of no cause of action and remanded the cause for trial on the merits. The plaintiff again appeals from the judgment dismissing his suit.

The plaintiff’s argument is that the title of the purchaser at sheriff’s sale relates back and carries all that was on the land at the time of the levy. Undoubtedly the seizure of land embraces all that was on the land at the time of the levy. That the adjudication carries the title of the seized debtor to the full extent of the possession, legal or constructive, of the sheriff, is clear enough. The argument for the plaintiff goes further, and insists that if at any period of the seizure the property seized has been injured, or any part of it r'emoved and placed entirely beyond an.y control of the sheriff, that the right of action for damages for the deadening of the trees, or for the value of such property removed, is acquired by the purchaser at the sheriff’s sale. The argument, it is claimed, is supported by authority, and in this connection we find a reference to the principle that the sheriff’s sale carries all covenants of title- with which the debtor is clothed. Warranties of title are linked with the property and pass with its sale under our law as well as at the common law, but that principle can not, in our opinion, be deemed to affirm that a right of action for damages to the property before the adjudicatee has any title passes to him as an accessory of the property. In the only decisions of obvious pertinence to this controversy, our courts reached a different conclusion with reference to the title of a purchaser — i. e., that it does not carry any right to recover damages to the property for injuries accrued prior to the acquisition of such title, or to state it in another form, and that more directly applying to this case, wood cut and corded before the sale of the land does not pass to the purchaser of the land. Woodruff vs. Roberts, 4 An. 127; Nimmo vs. Allen, 2 An., p. 451. We do not think that the right of actionfor the value of property converted, or of damages for injury to the property prior to the seizure, can be deemed an accessory or part of the immovable, nor do we perceive the support plaintiff’s argument derives from the line of authority cited that treat the sheriff’s deed only as a muniment of title, additional to the adjudication, or that class of authorities-that affirmjthe seizure as embracing all the interest of the debtor. Code of Practice, Arts. 656, 695, 696; Foley vs. Harrison, 5 An. 84; White, Richardson & Co. vs. Sheriff, 36 An., p. 984. Our courts have had frequent occasion to maintain the right of the seizing creditor to the sale of all the property seized under the writ. It is his right to have all such property faithfully preserved by the sheriff while under seizure, and it is to him the law gives a right of action for injury to the property whether by removal, -or because of any other act by which the property is diminished in value. It is this principle also that gives to the seizing creditor all “rents, revenues or issues” accrued from the immovable seized, and sustains his right of action for such rents. Summers & Brannin vs. Clark, 30 An., p. 436 White, Richards & Co. vs. Sheriff, 36 An., p. 984; Henry vs. Tricou, 36 An., p. 522; Lawrence vs. Cox, 32 An., p. 1045. If the seizing creditor under whose writ the tract of land was adjudicated to plaintiff were before us asserting his right against the sheriff for permitting, pending ch’e seizure, the injury of the trees, or the removal and cutting of the timber, the question would be different from that now presented. The right in this respect of the seizing crediiors under our jurisprudence is, we think, suggestive that the same right does not pass to the adjudicatee with no title whatever, when the injury to the property was done, or when the trees were converted. Our jurisprudence furnishes no precedent for recognizing any such right in the adjudicatee. Our conclusion is the action for damages, or for the value of the trees alleged to have been converted prior to the adjudication, did not pass by the adjudication.

The timber taken from the land during the seizure and in the possession of defendant is, in our view, to be deemed as constructively in possession of the sheriff when the adjudication was made. It formed part of the immovable. Out during the seizure, it was quite as much in the sheriff’s charge as the land itself. He could have taken it under his writ, and if his authority was resisted the courts would have enforced it. Gwynne on Sheriffs, 289. We think the adjudication must be deemed to carry to the purchaser the property in the actual as well as constructive custody of the sheriff. In this view we maintain plaintiff’s title to the timber in defendant’s possession that may be identified as removed from the land pending the seizure.

The defendant’s contention that he had a contract with the owner of the land for the cutting of the timber can not avail- him. We do not understand that the debtor can place his land beyond seizure for a debt secured by mortgage, and with the mortgage carrying into effect the pact de non alienando standing on the public records when the alleged contract was made, and for years before. Whether the defendant had knowledge of the seizure other than that the law supposes to be constructively conveyed by the seizure is unimportant. We take occasion, however, to say that the testimony impresses us he had actual knowledge.

It is insisted there was no seizure. If that proposition'is depend-ant on the proposition the defendant was served with no notice, the answer is no such notice was required. There is no testimony impeaching the seizure and the entire proceedings, and'the plaintiff’s title, and in our view the pleadings, ' support the seizure, at least remove it from controversy.

■ If, as we hold, the plaintiff had the right to issue the sequestration for the timber carried from the land, and in defendant’s possession when the writ issued, there can be no claim- for damages alleged to have been caused by the writ, and hence, in our opinion, there is no basis for defendant’s reconventional demand.

It is, therefore, ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed that the plaintiff be and is hereby decreed to be the owner of all the logs cut from the land in controversy and in defendant’s possession when the sequestration issued, and that said logs be delivered to him; that the case be remanded to ascertain the logs thus decreed to belong to plaintiff; that the sequestration be maintained as to such logs, and that the defendant pay costs.

Dissenting Opinion.

Nicholls, O. J.

I think a rehearing should be granted in this case, inasmuch as at present advised, I am of the opinion that the judgment heretofore rendered is erroneous.

The State holding a mortgage on the property of Clifton Cannon, the- sheriff of Avoyelles parish, secured (under the law) by the clause d’e non alienando, and holding a judgment recognizing the mortgage debt and mortgage, seized and sold the property mortgaged under a writ of ft. fa. to the plaintiff, Prank. While the property was under mortgage, but before the seizure of the same, Cannon had, by contract, authorized the defendant to cut timber from the land, After the seizure of the property and while it was in the hands of the executive officer' of the court, Magee entered upon the land, deadened a number of trees and cut down others. Some of those cut down were still upon the-land at the time of the judicial sale, but others so cut down had been sold by Magee at that date. There was no notice given in the advertisement of the property for sale, or at the-time.of sale, that-the condition of the property was other than what it was at the time of the seizure.

Tbe claim of the State against Cannon' having been fully satisfied after the seizure and sale (independently of any claim against Magee for cutting down and selling as he did the timber on the place), the question in this case is whether or not the purchaser, Frank, has a right of action against Magee for the cutting down and the conversion of the trees, which, at the time of the seizure, formed part of the realty. I am satisfied neither the seized debtor nor any one holding under him could acquire rights by an illegal entry upon the property pending the seizure, severing trees from the land,' and carrying off and selling the same. I am 6f the opinion that when Frank bought at the judicial sale, made in execution of the judgment enforcing the State’s mortgage claim, and the State was fully paid, every right which the State had in the thing mortgaged, at the time of the seizure and at the .time of tbe sale; passed from the State to the purchaser. The purchaser acquired not only the rights of Cannon in the thing sold, but also the right of the seizing creditor under the mortgage and under the seizure and sale. He became subrogated to all the rights in the premises which the State had, including the right of action, which it may have, had prior to being paid in full against Magee. The right of action should certainly belong to some one. When the State was paid in full it passed from it to Frank, even had the right not belonged to him before, by reason of his acquisition of the property itself, and as being part and parcel thereof by relation. Frank’s title to the land, under our law, became absolute at the moment of the adjudication, and his rights related back to the time of the seizure as against any claim advanced by the former owner, or any one holding under him through an illegal entry upon the property pending the seizure and a severance therefrom of standing trees. [30 N. E. 979; 74 N. W. 103.]

Blanchard, J., concurred with the Chief Justice.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 12,772.
    State of Louisiana vs. John F. Button.
    The minority of one of the jurors will not avail to set aside their verdict when no -- • objection was made or questions asked on that point when the juror was ten - dered and accepted by the accused, nor does it make any difference in the application of this rule that neither accused or his counsel knew of the juror’s minority when he was tendered. 8 Kob. 590; 13 An. 276; 26 An. 384; 35 An. 975; 43 An. 370.
    APPEAL from the Eleventh Judicial District Court for the Parish of St. Landry. Dupré, J.

      M. J. Cunningham, Attorney General, and B. Lee Garland, District' Attorney (P. A. Simmons, Jr., of Counsel), for Plaintiff, Appellee.

      John N. Ogden for Defendant, Appellant.
    Argued and submitted April 23, 1898.
    Opinion handed down May 16, 1898.
    Beh earing refused June 29, 1898.
   The opinion of the court was delivered by

Miller, J.

The accused, indicted for murder, convicted without capital punishment, takes this appeal.

The bills of exception present the question whether the verdict of the jury should be set aside and a new trial granted the accused on the affidavits and proofs submitted on the rule for new trial and motion in arrest, that one of the jurors was a minor, and that the fact of his minority was not known, when, without any interrogation on that point, he was accepted as a juror.

When the juror is tendered the opportunity is afforded the accused to examine the juror as to his competency. To enable the accused to inform himself with respect to the jury by whom he is to be tried, the law requires the jury list to be served on the accused two entire days before the day of trial. B. S., Sec. 992. With the right to challenge any juror not qualified to serve and full opportunity afforded to ascertain if there is cause for any such challenge, it deserves serious consideration whether the accused, after he has accepted a juror and taken the chance of an acquittal and after an adverse verdict, can claim that the verdict shall be set aside, because one of the jurors was a minor. It is urged on us that the juror had been drawn on a previous venire and had served on a previous jury, presented the appearance of one who had passed his majority, and hence it is contended the accused and his counsel may well be deemed to have been misled into accepting the juror. Besides there are affidavits of the accused and of his counsel that they were ignorant of the juror’s incompetency when he was called to the box. On this issue of diligence we can not overlook the ample opportunity of the accused to learn before the trial that incompetency of the juror, quickly made the ground of objection after conviction. Accepting the entire sincerity of the affidavits, we can not resist the conclusion that the diligence to be expected from the accused under the circumstances and suggested by the service itself upon him of the'jury list, if exerted, would have discovered the fact now made the basis to set. aside the verdict.

Our own jurisprudence has not favored applications to set aside verdicts on grounds like that urged here. Our courts have uniformly held that it was too late, after verdict, to urge the disqualification of one of the jurors; that the full opportunity was afforded to make such objections; that it should be made when the juror is presented and can not be insisted upon after the trial. In some of the cases, the circumstance that the disqualification of the juror was not known when he was accepted by the accused, was considered and held to imply a want of diligence, fatal to the objection. State vs. Nolan, 13 An. 276; State vs. Bower, 26 An. 384; State vs. Sopher, 35 An. 975; State vs. Garig, 43 An. 370. The- decision of our predecessors held, that where the juror was examined on his voir dire and gave false answers to questions touching his qualifications, that in such case the objection to the juror’s competency was a sufficient ground fora new trial. State vs. Nash and Barnett, 45 An. 1143. The decision proceeds on the ground that the accused could not be deprived of his right to a jury composed as the law directs, by the fraud accomplished by the false answers of the juror. That decision resting on the gronnd peculiar to that case, does not infringe on the line of our decisious on this subject. It is our conclusion, the objection to the juror’s competency came too late, and hence the rule for new trial was properly overruled.

It is therefore ordered, adjudged and decreed that the sentence of the lower court be affirmed.

Rehearing refused June 29, 1898.


author: Watkins. J.

text:
    12,760.
    Florville Foy et als. vs. Mayor and Council of New Orleans.
    An ordinary action of a judgment creditor of the city of New Orleans attaoking the 1897 annual city budget subsequent to its approval by special ordinance, and also the 1898 budget six months prior to its preparation and presentation, discloses no cause of action.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Charles Lonque for Plaintiffs, Appellants, and James J. MoLoughlinf Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Defendants, Appellees. '
    Argued and submitted April 23, 1898.
    Opinion handed down June 22, 1898.
   The opinion of the court was delivered by

Watkins. J.

The plaintiff, Foy, alleging himself to be a judgment creditor of the city of New Orleans for the sum of sixteen hundred and fifty- eight dollars with interest, and in the further sum of nine hundred and thirty dollars with interest, less a credit of one-thousand dollars paid and credited thereon; and various other judgment creditors for sundry small amounts of two or three hundred dollars each, join in one petition and make common cause; and for’ the reasons therein assigned they jointly demand that the defendant be directed to amend their budget of 1897 so as to strike therefrom all items which have been objected to * * * and that they be-ordered to place (their claims) upon said budget for the full amount of their judgments,” etc.; and in the alternative, that the court can not afford them full and adequate relief on the budget of 1897 “ that said council be ordered to place petitioners on the budget of 1898,”’ etc.

On the trial there was judgment in favor of the defendants and the-plaintiffs have appealed.

The theory of the plaintiffs is that several creditors of the city enjoined the payment by the city of several items of indebtedness which figured upon the city’s annual budget of 1897? and same was made perpetual by a final judgment of this court.

That petitioners object to certain enumerated items aggregating seventy-two thousand dollars, which had been illegally budgeted and appropriated therein.

That the plaintiff, Foy, sued out a mandamus to compel the City Council to budget the amounts of his aforesaid judgments, but that relief was denied, with the right reserved to attack the budget in a direct action.

That the city has recently passed two ordinances whereby said amounts have been applied to the liquidation of the expenses of garbage removal; but that said sums of money have not been actually expended by the City Treasurer.

That it is the duty of the City Council to provide annually for the payment of judgments.

The defendants first tendered a plea of no cause of action, and the judge a quo having referred same to the merits, they filed an answer pleading the general issue.

In the course of the discussion defendant’s counsel suggested our lack of jurisdiction ratione materise; but it is not well taken. See Marx vs. Myers, 50 An. —.

It seems to us too clear for argument that the exception of no cause of action should have been, if it was not, sustained in the District Court; and this fact can not now be ascertained, for the reason that the record fails to disclose the ground on which our learned brother of that court pitched his decision.

The decisions of this court to which the plaintiff’s petition doubtless refers are the following, viz.:

State ex rel. Foy vs. Mayor and Council, 49 An. 947, and

Badger, Receiver, vs. City, 49 An. 804.

Both of these cases were mandamus proceedings taken against the Mayor and City Council for the purpose of compelling said respondents to put their respective claims upon the city budget for the year 1897.

In each case judgment went in favor of the respondents, and the respective relators appealed.

In the Foy case, above referred to, there was the following reservations made, viz.: “the mandamus be and same is hereby dismissed under reservation of any legal rights which he may have as holder and owner of the judgments which he declared on.”

In that immediate connection we were careful enough to say:

“ We express no opinion as to the scope of the rights which the relator may be entitled as holder of the judgments on which he declares, whether by virtue of the pleadings in the case on which-they were rendered and the terms of the judgments themselves he be entitled as a ‘ general creditor,’ to be paid out of any and all funds which may be found available for the payment of ‘ debts ’ of the corporation, or whether to be restricted to some special fund or funds.”

We have substantially the same difficulty still confronting us; for whether plaintiffs be the general or special creditors of the city, there is nothing in the record ,to show.

This matter being in doubt, and entirely undetermined, we can not see' our way to granting the relief plaintiffs demand.

There are three obstacles in their way: (1) The budget was finally approved in December, 1897, by a special ordinance of the city, which bars and absolutely concludes all those who did not formally oppose same; (2) the budget of the year 1898 can not, under the law, be prepared and filed until the month of December, 1898, and consequently, quoad hoc this suit is premature, there tjeing no 1898 budged in esse; (3) there is no substantial basis upon which this suit can rest, as neither the budget of 1897 nor 1896 can, under existing circumstances, be attacked in this form of proceeding.

. For these reasons this suit discloses no cause of action. Judgment .affirmed.


author: Watkins, J.

text:
    No. 12,743.
    State of Louisiana vs. T. J. Hand.
    No appeal lies to the Supreme Court from a verdict and sentence condemning the . defendant to pay a fine of ten dollars, or in the alternative suffer imprisonment in the parish jail for a period of ten days.
    A PPEAL from the Sixteenth Judicial Court for Parish of St. Tam- ^ many. Reid, J.

      M. J. Cunningham, Attorney General, for Plaintiff, Appellee.

      Charles T. Madison and Charles J. Boatner for Defendant, Appellant.

      Submitted on briefs June 4, 1898.
    Opinion handed down June 13, 1898.
   The opinion of the court was delivered by

Watkins, J.

The defendant was indicted for the offence of wilfuly and unlawfully failing and refusing to work the public road in violation of the provisions of Act No. 117 of 1896, and having been found guilty and sentenced by the court to pay a fine of ten dollars and costs, and in default of payment of fine that he be confined in the parish jail for a period of ten days, he prosecutes this appeal.

In this court the Attorney General has filed a motion to dismiss the appeal on the ground that the Supreme Court is without jurisdiction ratione materim to entertain the same, because the defendant is charged with a simple misdemeanor, the puntshment of which is not less than five dollars, nor more than twenty-five dollars, and in default of payment of the fine assessed imprisonment in the parish jail of not less than ten nor more thirty days.

The motion is well taken and the appeal is dismissed.


author: Watkins, J. Watkins, J.

text:
    No. 12,707.
    Elder & Davis vs. Mrs. M. C. Ludeling.
    A sheriffs return disclosing that service of citation and writs of attachment and sequestration was made by handing copies thereof to a curator ad hoc, the same is illegal and void, because they do not conform to the positive requirements of the Code of Practice; and as those formalities stand in lieu of citation to a non-resident, and must be strictly complied with on pain of nullity, the suit must be dismissed and the writs dissolved, because the jurisdiction of the court did not attach.
    On Application por Rehearing.
    A party sued as an absentee and non-resident of the State, and her property attached and sequestered, may be subjected to the jurisdiction of the court during the pendency of the suit by personally serving her with a citation, and thereupon a personal judgment may be rendered against her for the amount of the debt demanded.
    But this service of citation does not possess the retrospective effect of curing a defective service of writs- of attachment and sequestration to which the curator ad hoc had excepted prior thereto.
    A PPEAL from the Fifth Judicial District Oourt for the Parish of Ouachita. Potts, J.

      C. J. Boatner and F. G. Hudson for Plaintiffs, Appellees.

      Farrar, Jonas, Kruttschnitt <& Gurley, T. O. Benton and E. T. Bamkin for Defendant, Appellant.
    Argued and submitted January 14, 1898.
    Opinion handed down February 7, 1898.
    Rehearing granted March 21, 1898.
    Argued and submitted on rehearing May 18, 1898.
    Opinion handed down June 13, 1898.
   The opinion of the court was delivered by

Watkins, J.

This suit is brought upon a stated account for five thousand six hundred and ten dollars and thirty cents, coupled with an attachment and sequestration, and from a judgment in favor of the plaintiffs for the amount of this claim, and sustaining both of said writs, the defendant' has appealed.

The averment on which the plaintiffs demanded an attachment is that the defendant was “ a non-resident of the State,” residing “in the city of Bridgeport, State of Connecticut.”

Upon this allegation, duly sworn to by the plaintiffs, the court appointed a curator ad hoc to represent the absent defendant, and caused writs of attachment to issue to the sheriffs of the parish of Ouachita and the parish of Morehouse, in each of which the defendant owned a plantation and other property.

The allegation upon which the plaintiffs demanded a sequestration were that they had a lien and privilege as the furnishers of necessary plantation supplies on the crops of the defendant, “and that she has removed from said plantation and shipped to a cotton factor in-the city of New Orleans all the crops raised on said plantations during the year 1895, and petitioners fear and believe and have good grounds to fear and believe that the defendant will conceal, part with, or dispose of same during the pendency of the suit.”

In limine the defendant appeared by counsel for the sole purpose of excepting to the suit and the writs of sequestration and attachment on the ground that same were illegal, null and void for the reason that neither the citation, the writ of attachment, nor the writ •of sequestration were legally served, copies of same having never 'been posted on the door of the room where the Court in which the suit is pending is held, as the law requires.

That, in the alternative, she avers that she is and has been a resident of the parish of Ouachita, and verily believes that her said residence was well known to the plaintiffs when this suit was filed; and that she can not be legally brought into Court by means of a curator ad hoc.

That the plaintiffs’ averments on which they obtained said writs ■are false aud untrue.

That she was not making nor attempting to make any disposition .of the crops or other property on which the plaintiffs had a lien and privilege, other than that agreed on between her authorized agent ■and attorney in fact and the plaintiffs, and that the plaintiffs well knew that she was giving to no other creditor more than themselves, .a preference on the proceeds of the sales thereof.

On the same date, the curator ad hoc moved to dissolve the writs .and dismiss the suit on the ground that the defendant was a resident of the parish of Ouachita, and not a non-resident of the State •of Louisiana.

It is obvious that the sole ground of plaintiff’s attachment proceedings is the alleged non-residence of the defendant.

She is sought to be brought into court, and subjected to a large judgment, through the interposition of a curator ad hoc only. It is not pretended that she was personally cited and served, or that a domiciliary service was made upon her.

It is not claimed that citation was issued to and served upon her attorney in fact in the pariah of Ouachita, to whom she had given a power of attorney and authority, to receive service of citation.

Conceding, then, for the purpose of defendant’s first exception, that the defendant is a non-resident as she is alleged to be, the jurisdiction of the court depends upon the legality and regularity of the service of the citation and writs of attachment and sequestration. •

It appears from the record that the two motions to dissolve the writs and dismiss the suit were filed on the 28th of January, 1896.

The record discloses no citation directed to the defendant, and the only process by which the plaintiff sought to obtain a judgment against the defendant was through a curator ad hoc.

It shows.further, that the writ of attachment issued to the sheriff of the parish of Ouachita was served by “ handing a copy to E. T. Lampkin, curator ad hoc.” That the writ of sequestration directed to said sheriff was served by “ handing a copy to E. T. Lampkin, curator ad hoc.” That the writs of attachment and sequestration which were issued to the sheriff of the parish of Morehouse were not served at all, or upon any one, or in any place.

Notwithstanding the issue was directly made by the defendant’s exception, that neither the citation nor the writs of attachment and sequestration had been legally served, by affixing certified copies thereof to the door of the room where the court in which the suit is pending is held, the record is barren of testimony on the subject; and the returns of the two sheriffs show an exactly contrary state of facts.

The Code of Practice provides that if the defendant be absent or reside out of the State, in such case the sheriff shall serve the attachment and citation by affixing copies of the same on the door of the room where the court in which the suit is pending is held.” Article 254.

It further provides that the sheriff shall serve the writ of sequestration by “ serving the petition and the copy of the order of sequestration upon the defendant.”

It has been repeatedly held that the formalities prescribed-in these articles of the Code of Practice stand in lieu of citation in the ordinary form, and must be strictly complied with upon pain of nullity; and the court has invariably dissolved the writs on account of the failure of compliance therewith.

And amongst other cases the following may be cited, viz.:

Putuam vs. The Grand Gulf Railroad and Banking Company, 3 Rob. 232; Kraeutler vs. Bank, 12 R. 461; Mithoff vs. Dewees, 9 An. 550; Cox vs. Bradley, 15 An. 529; Woolridge vs. Hedrick, 27 An. 79; Connell vs. Medlock, 24 An. 512; Connell vs. Medlock, 25 An. 590; Irving vs. Edrington, 41 An. 671.

Plain as the terms of the Code of Practice are, and as unmistakable as the decisions of this court appear to be, the District Judge tried and overruled the defendant’s motions on Wednesday, the 16th of December, 1896.

■ Something was said in oral argument to the effect that the defendant had waived the benefit of her motion and exception; but such waiver is not discoverable in the record. On the contrary, it appears from the record that the defendant did not file her answer to the • suit until the 28d of December, 1896 — one week subsequent to the ■ motion to dissolve being overruled — and same is prefaced by the • statement that she reserved all her rights under her exception and. motion to dissolve the writs of attachment and sequestration.”

In addition to the foregoing, there is no mention made in the brief.' of plaintiffs’ counsel in reference to any such waiver.

In our opinion, it is clear that there was neither legal service of citation or writs of attachment and sequestratiou, and that the coprt below erred in failing to so decide.

Finding the service wanting in the foregoing essential requirements, the jurisdiction of the court did not attach.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the suit of plaintiffs’ be dismissed, and the writs of attachment and sequestration be dissolved, and that all costs be taxed against the plaintiffs and appellees.

On Application for Rehearing.

Watkins, J.

On the 7th of February, 1898, we handed down an opinion in this cause reversing the judgment appealed from, dissolving the writs of attachment and sequestration, and dismissing; plaintiffs’ suit, same having been prosecuted against the defendant, as an absentee, and- the service of the writs having been founds defective.

Thereupon the plaintiffs’ counsel made an application for a rehearing on the sole ground that the opinion of the court is based wholly and entirely on the assumption that no citation whatever had issued to the defendant in the cause,” whereas there had been, in fact-(though same had been inadvertently omitted from the transcript-of appeal), citations regularly served upon both the curator ad hoc and upon the defendant,-in person, in the parish of Ouachita.

Subsequently to the filing of said application and as auxiliary to and in aid of same, we granted the plaintiffs a writ of certiorari. addressed to the clerk of the District Court requiring him to pro - duce the original citations referred to or certified copies of same, to-be placed in the transcript in order to complete and perfect, same- and make it conform to the record in the. court below.

The failure to transcribe the said citations into the- transcript. being a fault attributable to the clerk, and the absence of same not having been brought to the attention of either counsel in the case, we were of opinion that the ends of justice would be best subserved by granting the relief sought, even pending an application for rehearing, whilst recognizing this course of proceeding as a departure from the usual course in such matters.

The original citations having been produced and filed the question for us to decide is to what extent and in what manner does their production change the situation and necessitate an alteration in our decree, our former judgment having been set aside and a new trial granted.

The following data from the record is worthy of consideration, viz.:

1. The citation to the curator ad hoc was served on him on the 16th of January, 1896.

2. The motions to dissolve were filed on the 28th of January, 1896.

3. Citation to the defendant was personally served upon her on the 25th of March, 1896.

4. The motions to dissolve were tried and overruled on the 16th of December, 1896.

5. The answer of the defendant was filed on the 23d of December, 1896, fully reserving the benefit of her exception.

It is quite obvious that the service of citation upon the defendant, in person though R were, had no effect upon the record or the rights of parties thereunder; but that they remained just as they existed on the 23d of January preceding, and subject to the exception and motion of defendant to dissolve.

Counsel for the plaintiffs on the second hearing press the argument that the defendant did not rest her case upon an exception and motion to dissolve exclusively; but that she put at issue the merits, in a limited sense, and by so doing waived the benefit of her exception, and submitted herself to the jurisdiction of the court and thereby lost the benefit of her exception.

The following is the defendant’s exception in extenso, viz.:

“ Now comes the defendant in the above entitled and numbered suit and moves to dissolve the writ of attachment and sequestration, and dismiss the suit on the following grounds:
1. Because, she has never been legally cited. That she is a resident of the parish of Ouachita, and verily believes her residence was well known to plaintiffs when the suit was filed, and that the appointment of a curator ad hoc to represent her, and service of citation upon him, was illegal and void.
“ 2. Even if she had been a non-resident of the State, the pretended citation would still have been null, from the fact that notice or copy of citation and of writs of attachment and sequestration were not posted at the court-house door, as the law requires.
“ 3. Respondent specially alleges that the allegations on which the writs of attachment and sequestration were issued were false and untrue. She avers that the writs of attachment and sequestration issued in this case were obtained wrongfully, maliciously, wantonly and vindictively, without just cause in either law or fact.
“ Wherefore she prays that the writs of attachment and sequestration be dissolved. And further prays that the demands of plaintiff be rejected, and that she may have judgment against the plaintiffs for twelve hundred dollars special damages over and above those claimed in her exception and motion to dissolve, and for costs and general relief.
“ (Signed) Thomas O. Benton, Attorney.”

The defendant appeared for the sole purpose of moving to dissolve the writs of attachment and sequestration, though the consequence of same was expected to be the dismissal of the suit, as she was sued as a non-resident.

The motion assigns three different grounds for the dismissal of the writs: (1) Because she had never been legally cited, not being an absentee; (2) because the writs had not been served as the law requires; (3) because the allegations on which the writs were obtained were false and untrue.

Evidently neither of these grounds of exception had any relation . — even the remotest — to the merits of the cause, which were indebtedness vel non.

They conclude with the prayer: “Wherefore she prays that the writs of attachment and sequestration be dissolved.”

Her further prayer relates to the rejection of plaintiff’s demand for the issuance and maintenance of the writs, and the allowance of twelve hundred dollars special damages.

The record shows affirmatively that the defendant’s motion to dissolve was filed on the 28th of January, 1896, and was tried and overruled on the 16th of December, 1896 — near twelve months having elapsed in the meanwhile. But it was not until the 23d of December, 1896, that defendant’s answer was filed; and it contained a full reservation of all her rights under her exception.

We quote the following from the brief of counsel for the plaintiffs for the purpose of showing their total want of application to the facts of this case:

“ The precise question has frequently been decided:
“ In 4 la. 91 (Rowlett vs. Shepherd) the Court says:
“ It is true, as stated in argument, that citation is the basis on which every suit must rest; but appearance and pleading to the merits is always considered to cure the defect. Here the defendant appeared and pleaded to the merits, but before doing so he expressly excepted to the want of citation. Whether under our law, where exceptions, though they must proceed in order, may be put in at the same time with an answer to the merits, the objection to the want of citation could be considered as abandoned by presenting the eontestatio lites on other matters, need not be decided. In this instance the party went to trial on the merits, without requiring a de - cisión on the exceptions, and this we consider a clear waiver of it.
“ 1 An. 323 (Livingston vs. Dick), the Court says: ‘The defendant in injunction filed a written motion to dissolve the injunction, in which he alleges as grounds for the dissolution:
“ ‘ 1. That he had not been served with a citation, but that plaintiff had induced the sheriff to desist from proceeding in the case. This ground hardly requires notice. The objection of absence of citation was clearly abandoned by the defendant’s appearance and pleading in the cause, and going to trial before a jury upon the merits, without any disposition made of that part of the motion. ’ ”

Again:

“Your Honors have had this subject under consideration very recently. In the case of Williams vs. Commission Company, 45 An. 1013, defendants, non-residents of the State, were brought into court by attachment and the appointment of a curator ad hoe. The sheriff, in that case as in this, served the citation and petition on the curator ad hoe, but failed to post them at the court-house door. Defendants moved to dissolve the attachment on the ground, among others, ‘that the service is illegal, the required posting of the petition, citation and writ of attachment at the court-house door not having been complied with.’
' “ The court says: ‘ In reference to the first proposition the plaintiff’s counsel argue that the defendants waived the informality of service of citation and writ of attachment by their appearance in the suit, and having furnished bond and obtained the possession of the property attached. * * *
“ ‘They appearedin the suit and unqualifiedly delivered to the sheriff their obligation to satisfy such judgment to the value of the property attached as may be rendered against him in the suit pending. It is the appearance authorized by Art. 259 of the Code of Practice. It is characterized as an appearance in the suit. The only question for our decision is, does that appearance cure the informality of service alleged?’ ”

The authority of those decisions is not doubted, but their applicability is lacking altogether, because the defendant’s motion to dissolve ' had been tried and overruled before her answer had been filed.

The point is not well taken, and can not be sustained.

We do not regard it necessary to decide whether or not the defendant was an absentee or a non-resident of the State at the time of the institution of -the suit, for the reason that personal service of citation upon her, while she was within the territorial jurisdiction of the District Court, during the pendency of the suit, is sufficient to submit her to that jurisdiction at the time judgment was pronounced, at least in so far as the debt was concerned.

It is evident, that the service of the citation upon the defendant personally, on the 25th of March, 1896, could not and did not have the effect of giving life to an attachment which bad not been legally and validly served.

The same reasoning applies with equal force to the writ of sequestration.

■ In so far as the indebtédness of the defendant is concerned, there appears to be no controversy, except with respect to the sum of four hundred and eighteen dollars, which is thus explained in the brief of plaintiff’s counsel:

“ The evidence shows beyond question, that in January, 1885, I. I. Davis, a merchant in Monroe, La., agreed to make advances to defendant’s plantations during that year. Under this arrangement, four hundred and eighteen dollars had been advanced by Mr. Davis, when he formed a partnership with Mr. Elder, under the firm and name of Elder & Davis. The account against the defendant for four hundred and eighteen dollars was transferred by Davis to the firm of Elder & Davis, which firm continued advances to the defendant, through the year, amounting to five thousand six hundred and ten dollars and thirty cents.”

This statement is fully borne out by the record, and we are of opinion that the plaintiff's are entitled to a personal judgment against the defendaut for the entire amount claimed, and for which judgment was rendered in the court below; but in our opinion now, and as it was expressed in our original decree, the writs of attachment and sequestration should have been dissolved — the cost of the principal suit being taxed against the defendant, and those incident to the writs of attachment and sequestration against the plaintiffs.

With regard to the defendant’s demand for special and general damages, we think a proper allowance should be made, but we are not impressed with their gravity; nor do we think a large sum should be awarded.

The extent of the property seized should not control our judgment, notwithstanding a large amount was seized, as the proof does not show any great amounl of injury, trouble or inconvenience to the defendant. Attorneys were employed to dissolve the writs and a curator ad hoc was appointed.

Without particularly specifying the items of damage, we are of opinion that the sum of one hundred and fifty dollars would compensate the defendant for all of her outlay in expenses and attorney’s fees, including the fee of the curator ad hoc.

It is, therefore, ordered and decreed that our former decree be set aside, and that the judgment appealed from be affirmed, except in respect to the writs of attachment and sequestration; and that in respect of same that the judgment be amended by dissolving same at the cost of the plaintiffs, and that they be adjudged and decreed to pay the defendant as damages for the dissolution of said writs the sum of one hundred and fifty dollars, and that as thus amended the judgment be affirmed.


text:
    No. 12,618.
    George C. Hemingway vs. New Orleans City & Lake Railroad Company.
    The proof disclosing that the driver of a small pleasure wagón had halted his team within a few feet of a street electric car tract at the intersection of Carrollton avenue and Canal street, in the city of New Orleans, to wait for a steam train and an electric street car to pass, and suddenly put his horse and wagon in motion for the purpose of crossing the track, in front of another electric car which was rapidly approaching, and only a short distance away and within easy open view — Held: That the street car company, its agents and employees were not guilty of culpable negligence which renders the defendant liable for the damages resulting from a collision between the car and wagon.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      O. B. Sansurn (Fenner, Henderson & Fenner, of Counsel) for Plaintiff, Appellant.

      Denigre, Blair & Denigre for Defendant, Appellee.
    Argued and submitted March 7, 1898.
    Opinion handed down May 30, 1898.
    Rehearing refused Juue 29, 1898.
   The opinion of the court was delivered by

Watkins, J.

The plaintiff prosecutes this suit in his own right and that of his two minor children against the defendant for twenty-five thousand dollars as the amount of the damages they sustained in a collision between one of the electric ears of the company and a wagon driven by the plaintiff on the afternoon of the first of March, 1895, at or near the intersection of Canal street with Carrollton avenue, the two children being occupants of the wagon at the time.

On the trial there was judgment in favor of the defendant rejecting the plaintiff's demands, and from that judgment the latter has appealed.

The reasons assigned by the judge a quo for his judgment are brief and unique, and we quote them, viz.:

“ Considering the evidence in this case and the opinions of the Supreme Court in the case of Snider vs. Railroad Co., 48 An. 1; Perez vs. Railroad Co., 47 An. 1891, and Schwartz vs. Railroad Co., 30 An. 18, judgment is rendered in favor of the defendant.”

In his petition the plaintiff particularizes the damages claimed thus, viz.: (1) For the pain and suffering of his minor son, Ira, three -thousand dollars, and for the loss of his arm twenty thousand dollars; '.(2) for the pain and suffering of his minor son, George, five hundred dollars; (8) and for the personal injuries, pain-and suffering he sustained one thousand five hundred dollars.

The following is a brief synopsis of the statement of the plaintiff’s case as it appears in his petition, viz.:

That at about 3 o’clock in the afternoon he and his two little boys were driving out Canal street in a one-horse wagon on the lower or down town side — the plaintiff’s purpose being to turn into Carrollton avenue as soon as his wagon had arrived at the west crossing thereof.

That, in the exercise of due care and caution, he stopped his horse and wagon and looked and listened for any car which might be then approaching said crossing; and that while thus looking he observed one of defendant’s steam trains going over said crossing, and that “a certain green ear of the defendant’s, about seventy feet behind said steam train, was approaching said crossing.” That he also observed a certain other ear of the defendant’s, about seven hundred feet behind said green car. approaching said crossing.”

That both of last named street cars were being propelled by electric force, and were being operated by the defendant’s agents and servants.

That he “ waited at said crossing until said train of ears and said green car passed over and away from said west crossing of said Carrollton avenue; and (he) looked and observed that the other car was a long distance away from said crossing, and that there was ample time for (his) horse and wagon to go over and beyond said -crossing.”

That, thereupon, he “ did proceed to carefully drive and guide his horse and wagon over said crossing into said Carrollton avenue, plainly in sight of defendant’s said servants and agents, who then and there had complete and absolute control of . said car of defendant.”

The petitioner'then avers that “ then and there it became and was the duty of defendant’s said servants to reduce the speed or motion of said car, and to prevent said car from running at a very high rate of speed, and (thus) prevent said car from running upon or against (his) horse and wagon; but defendant’s said agents and servants, not regarding their said duty, wholly disregarding the presence of (his) said horse and wagon and (his) presence, and that of his sons in said wagon, * * * would not and did not reduce the speed or motion of said car, but permitted it to move on at its highest and greatest possible speed, until if ran upon and against the body of his said wagon with great force and violence,” etc.

That in “ consequence thereof (bis) said wagon, and (he) and (his) sons were forced and driven with great violence from the point of impact over and upon defendant’s cross-ties and rails, for a long distancet, o-wit, seventy feet; and then and there (his) said wagon was turned over and broken, and (he) and his sons were thrown with great force and violence upon the ground,” etc.

That (his) “ body was cut, torn and bruised; and his son, Ira, was thrown upon the ground and his body cut, torn and bruised; and his right arm cut, broken and crushed, and it became and was necessary to cut off and amputate (same)’’ — whereby said child is now and ever will be permanently maimed and disabled during his natural life.

That his “ son Geofge, was also thrown with great force and violeuce upon the ground", and his body cut, torn and bruised.”

That he and his sons “ suffered great pain and anguish, physically and mentaily,” and that they became and were sick and sore for a long time, to-wit.: forty days; and that it became and was necessary for him to pay and expend large sums of money * * * in the healing and curing his and his son’s bodily injuries, etc.”

The defendant first tendered a plea of no cause of action; and, simultaneously, it filed an answer, first pleading the general issue, and in the alternative, contributory fault and negligence on the part of the plaintiff, thus exonerating the company from all responsibility for the accident.

The exception was fixed for trial, submitted and overruled; and upon the statements we have extracted from the petition, we are of opinion same was correctly overruled.

As usual and necessary in this class of eases, the witnesses inter - rogated were numerous, and their interrogation took a wide range; but the salient point, and most important question to be ascertained ■from the evidence adduced is, whether, from the distance of the car which caused the injury from the intersection of Canal street with ■Carrollton aveuue where plaintiff’s wagon was standing, the interval of time was sufficiently great to have justified his attempt to drive it across the track of the defendant, immediately in front and in full ■open view of it, rapidly approaching — the accident having occurred at about the hour of 3 o’clock in the afternoon.

The plaintiff’s counsel recognized the fact that the obligation was legally imposed upon his client to look and listen for approaching trains or cars upon this highway of the city, when arriving at or ■near the intersection thereof with another street and before making an attempt to cross over same; and hence he was careful to make the statement in his petition that he stopped his horse and wagon near the street crossing so that one of the defendant’s steam trains might pass by, and one of its electric cars likewise. That, having thus •stopped, he did look, and saw another one of the defendant’s electric street cars approaching him from the rear and apparently about •seven hundred feet distant, and supposing that he had ample time to •drive his wagon over the track with safety he attempted to do, and was overtaken and run down by said electric car — the servants and' agents of the defendant operating and in charge of the car having -ample opportunity to see him and his wagon, and ample time to have slacked the speed of the car so as to have avoided the collision, •but they negligently failed to do so.

It is quite true that the public streets of a city are free and of equal access to all persons desiring to use them for either the purposes of ■business or • pleasure, but neither has the right in making use of them to disregard the rights of others or to needlessly and causelessly imperil his own safety.

Between the parties there existed no contractual relations, and hence t.he defendant, in using and operating its electric cars, had imposed upon it only the duty with regard to strangers of observing •ordinary care and caution. But that obligation rested equally upon the plaintiff.

A conspicuous fact in this case is admitted in the petition, and that is that plaintiff had brought his horse and wagon to a complete ■standstil, so as to permit one of the defendant’s steam trains to pass by, and also one of its electric cars; and that it was only after same had passed by that he attempted to drive across the track, in full view of the approaching car that caused the collision.

To accomplish this, the plaintiff had to put his horse and wagon in motion, after he had waited for the train to pass.

At this juncture it is well to make a brief synopsis of the testimony, and procure the aid of the witnesses in determining the question of doubt.

The plaintiff’s witness, William Sundimaker — a boy of sixteen years of age, the driver of a milk cart — was immediately present at the place where the collision occurred, and saw the accident. He states that he was driving a two-wheeled milk cart, and had halted to pick up a boy and give him a ride. That he was standing on the Canal street bridge, at the intersection of Canal street and Carroll-ton avenue — the crossing next to the cemeteries. That, while standing there, he saw the steam train pass by, and then saw a green car pass by. That he saw the plaintiff standing there; and he waited for the dummy and the green car to pass by — both coming from the direction of the city. That he, also, saw a yellow car coming from the same direction; and when he first saw the green car it was over a block distant.

Being repeatedly interrogated on the subject, he said it was “ over a block” distant from the crossing.

“ Q. Now can you tell — give any general idea as to how far the yellow car was away, or located anywhere. If so, do so; tell the court.
“ A. When Mr. Hemmingway wanted to go across?
Q. No; I mean when you first saw it?
“ A. It was over a block.
“ Q. It was over a block?
“ A. Yes, sir.
“ Q. Now, tell the court, after you saw this dummy pass, how far was the green ear, about, behind?
“ A. About a half a block.
“ Q. The dummy train when it passed? About how much did you say?
“ A. About half a block, or three-quarters.
Q,. That is the block toward the city?
“ A. Yes, sir.
“ Q. How far away at that time was the yellow car?
“ A. Well, it was about three-quarters of a block behind the green car.
“ Q,. When the dummy with its cars passed, had you or not seen Hemmingway in his wagon, or did you see him after.?
“A. I saw him after the dummy passed.
Hi * sis * * * * 'Jfi
Q,. Did you see him before the green car got up?
“A. Yes, sir.
“ Q. When you saw Hemmingway where was his horse and wagon?
“ A. His horse and wagon were standing on this side of Canal street.
Q,. On the lower side?
“ A. Yes, sir.
“ Q,. Was it moving when you first saw it, or was it standing still?
“A. Standing still.
“ Q. Did Mr. Hemmingway attempt to cross before the green car got up in front of him or after1
A. Afterward.
“ Q. How soon after the green car passed did he commence to cross?
“A. About fifteen feet.
“ Q,. Now, when Mr. Hemmingway — you saw him moving across— tell the court where the yellow car was then; about where it was?” • To this question the witness states that it was just opposite the iron gate of a green cottage in the adjacent block.

The witness describes the collision thus:

“ Well, when I stopped there was the dummy going past; and the dummy passed; and I saw Mr. Hemmingway stop then. He was standing still there when the dummy passed, and then came the green car, and Mr. Hemmingway waited for that to pass. I then saw the yellow car coming, and Mr. Hemmingway goes to go across, and the car came and hit him.”

The witness says Hemmingway with his wagon was about fifteen feet from the car track when he started to cross over the street in the rear of the green car. That his wagon was a spring wagon with four wheels and drawn by one horse. He says the yellow car was about one hundred and seventy-five, or two hundred feet distant at that time.

He says I looked around at the car. I saw the car coming first, and I turned around and looked at Mr. Hemmingway.”

He says another green car came up from the directiou of the cemeteries just after the accident, and its motorman gave some assistance.

He says at the time Mr. Hemmingway was attempting to drive across the track his wagon was moving slowly and he was looking at the track.

The following occurred on cross-examination, viz.:

“ Q. Then according to your idea, Mr. Hemmingway didn’t know that the car was coming?
“A. No, sir.
Q. If he had looked in the direction in which it was coming he could have seen it, couldn’t he?
“A. Yes, sir; bub he would have been too late to see it.
Q. Why do you say that?
“A. It was too close on him.
“ Q. You mean too close to be stopped?
“A. Yes, sir.
“ Q. When Mr. Hemmingway reached the track the car was too near to avoid striking him?
“A. When Mr. Hemmingway started off the car was about the iron gate.
“ Q. Now you say it was too close to Mr. Hemmingway to help Mr. Hemmingway if he had seen it?
“A. Yes, sir.
Q. You mean it was too close for the car to be stopped?
“A. Yes, sir.
“ Q. So when Mr. Hemmingway got on the track the car was too near him to be stopped?
A. Yes, sir.
* * * * * *
“ Q. And the car was coming along rapidly while Mr. Hemming-way was going on thé track?
A. Yes, sir.
“ Q. And Mr. Hemmingway had not looked in the direction of the car?
“ A. No, sir.
“ Q. And if he had looked in the direction of the car he could have seen it?
A. He would have been too late to see it.”

Another eye-witness of the accident disclosed in the course of his interrogation the following, viz.:

“ Q. Now, will you be kind enough to tell the court what you saw; what is within your recollection?
“A. We (the witness and Mr. Dugue) were standing there talking (when) I saw this gentleman (the plaintiff) trying to go across, The dummy had passed. He looked like he was jerking his horse to cross; he was hurrying up; and the car that run into him was coming in such full speed Mr. Dugue said 1 don’t think that he can make it. * * * and as he went to walk across the car ran into him.”

This witness states that he was about one hundred and fifty feet from the place of the accident, on the down-town side of Canal street, on the side of the crossing toward the cemeteries. He said that the car which came into collision with the wagon looked to him as though it ought to have been about one hundred and fifty (feet distant) or somewhere along there ” when he saw the plaintiff crossing the track in his wagon.

He states that as the steam train passed going toward the cemeteries the plaintiff was slowing up his wagon.

“A. Yes, sir; he was slowing up a little as that (train) passed; and then, as the other car was coming on, he tried to get across. He was jerking his horse up.”
“ Q,. Then, as I understand, the steam train passed just before he got to the corner; and then, after it had passed, he urged up his horse to go across?
“ A. Yes, sir; that’s my idea.
“ Q. He didn’t stop, did he?
“ A. I didn’t notice that; I Wasn’t paying much attention to him. He was hurrying up to get across when I saw him.
“ Q,. Just after the steam train passed?
A. Yes, sir.”

Another witness, who was standing near by on the up-town side of Canal street, gives a more, complete description of the accident than the one whose testimony has just been detailed.

“ Q. Tell the court what you know about it.
“ A. I was standing on the up-town side of Oanal street and I saw the dummy train going toward the cemeteries. After the dummy train passed I looked and saw Mr. Hemmingway on the down-town side of Oanal street, on Carrollton avenue, and then came a green car. * * *
“ Q,. Then came a green car from which direction?
“ A. Following the dummy; the same way the dummy was going. After that carne a yellow car; but between the time the green car passed and the yellow car came, Mr. Hemmingway made an attempt, by jerking his lines, to cross the track. Then the yellow car, it seemed to me, was like at the middle of the block, coming the same way the dummy and the green car did. Before Mr. Hemmingway could cross the track, the car had got about the middle of the block only before he got his cart across,” etc.; that he saw the car when it struck the hind wheel of his wagon.”

Again:

“ Q,. I understand you to say that you saw the dummy train pass?'
“ A. Yes, sir.
“ Q. And after it passed, then you saw Mr. Hemmingway’s cart?'
A. Yes, sir; after the dummy passed I saw his wagon.
“ Q.' Now, let us understand: on which side of Oanal street were the horse and wagon?
“ A. On the down-town side.
“ Q. Now, was it moving or at rest?
“ A. When the dummy was passing?
“ Q. Yes.
A. The wagon was standing still when the dummy was passing; and, also, stood still until the green oar passed.
“ Q,. How soon after the green car passed, can you tell the court, did Mr. Hemmingway commence to drive his horse?
“A. As soon as the green car passed, he began to take his lines in his hands this way, as a driver will do, to try to cross the track.
“ Q. Now, can you tell the court, if you kuow, * * * where the yellow car was when Hemmingway took his lines and commenced to start?
“ A. He was about the end of the block — just about coming into the block, like he was at the crossing.”

He said the green car was about one hundred yards behind the dummy when the latter passed over the crossing, and the yellow car was about one' block behind the green car.

The witness, Dugue, gives a more concise description of the accident than either of the preceding witnesses, as will appear from the following, viz.:

“ Q. Now, will you be kind enough to tell the court what you saw •and when you saw it? * * *
“ A. Yes, sir. I was on Carrollton avenue, on the woods side, between Customhouse and Canal, and I saw the car coming up; it was a yellow car. When I first saw the car it was about two hundred feet off; it was on the river side of Carrollton avenue. I saw a wagon going out Carrollton avenue, crossing the track. About that time — about the time he got on the track — the car struck him and dragged him about thirty-five feet.”

This witness says he was about two hundred feet from the place of the accident; and after it had happened, assisted in carrying Mr. Hemmingway to the sidewalk.

Again:

“ Q,. When was your attention first attracted to Mr. Hemming-way’s wagon?
“A. When the car was about two hundred feet off.
“ Q. ’ And where was Mr. Hemmingway’s wagon when your attention was first attracted to it?
“A. Mr. Hemmingway ought to have been about ten feet from the ■track.
“ Q. Was about ten feet?
“A. About that.”

He says Mr. Hemmingway “was coming from the up-town side of ■Canal street to the down-town side of Canal street,” immediatelyin front of him.

“He was on Carrollton avenue crossing Canal street,” and the car struck his wagon about the middle and on the right side.

Again:

“ Q. Well, when he was at a greater distance than ten feet from the crossing in which direction was he coming then?
“A. Well, he was in the position to cross the street to goto thelowei side of Caual'street. His horse was looking that way. Whether his horse was stopped or was just about to start I couldn’t say.”

Again:

■“Q,. On which side of Oanal street was the wagon — up-town or down-town side?
“A. Down-town side.
“ Q,. Down-town side?
“A. Yes, sir.
“ Q,. Where was the horse’s head directed?
“A. Toward Customhouse street. The wagon was toward Canal street and the horse’s head was toward Customhouse street. He was either coming that way or he had stopped in that position — I couldn’t say which.

Another witness, who resides on Carrollton avenue on the uptown side of Canal street, and within one hundred and fifty feet therefrom, states that he witnessed the accident from his dining room window and his statement is as follows, viz.:

“ I could see two blocks away on Canal street from the window toward the city, or from the city toward the woods; and I was watching the cars, and I saw Mr. Hemmingway come along with a little spring wagon with two little children. And there was a dummy coming aloug, and he stopped at the corner of Carrollton avenue and Oanal street, facing toward Carrollton avenue, to go out Carrollton avenue. And as the dummy passed there was a green car came by; and as the green car came by he started to cross the track. * * * And I saw a yellow oar coming rapidly on him when he started to cross. And I said ‘ Will ’ to a friend of mine who was there with me — I said just‘Will, look!’ and no sooner than I said that, the car struck the wagon.”

. The statement of the plaintiff is that he entered Canal street at Galvez street and “ went out on the down-town side of^Canal street to Carrollton . avenue and came to a stop, as the steam train was about to pass. He waited until the train had passed; and he noticed a green car behind the train, * * * about one hundredland fifty or two hundred feet distant.

“ Q,. Did you observe another car?

“ A. I did.

“ Q,. What kind of a car was that?

‘‘A. It was a yellow ear.

“ Q,. Well, now, give us your best judgmentjasjto the distance at that time that the yellow car was behind the green¡car?

“ A. Well, as the green car passed, or was passing, me I noticed that the yellow car hadn’t got into the block behind me.

Q. When you came to Carrollton avenue what did you do?

“ A. I came to a stop.

“ Q,. And when you came to a stop where were the passenger cars?

“ A. The train was passing me as I stopped.

Q,. Whqn did you move your horse forward?

“ A. Immediately after the green car had passed.”

He states that when he halted his horse and wagon his horse’s head was directed toward Carrollton, and was within six feet from the down-town rail of the track of the railroad company — that is to say, that the distance from the horse’s head was equal to one-half of the length of the horse and wagon, which he places at fifteen feet.

That he resumed motion “immediately after the green car passed ” him.

He further says that “ when he called bis horse up his attention was directed to his horse to call him up. As he called him up and got him in motion (though he had seen the car before) the car that struck him had (reached a point) opposite an iron gate that is on Canal street; and that he has since measured the distance (and found it to be) just two hundred and twenty-five feet from the crossing. When he got his horse in motion he noticed that the car was that far away from him and coming rapidly,” etc.

He states that the block in question is, by actual measurement, four hundred and eighty feet front on Canal street.

On cross-examination the following occurred, viz.:

“ Q. Well, Mr. Hemmingway, the real cause of this accident, as I understand it, is that you attempted to go across this track while the ear was rapidly approaching, and it got there before you crossed over?
“A. Yes,sir.”

One of the defendant’s witnesses, who was driving into the city from the cemeteries in company with his sister, stated that he was at the intersection of Canal street and Carrollton avenue, on the uptown side, and witnessed the accident.

That he noticed a man “ evidently urging his horse to get ahead of an approaching car, and saw that a collision was inevitable from the fact that he couldn’t succeed in making the distance across. That he halted immediately abreast of it.”

Q. Where was he when you first saw him?
“A. He was at right angles with the road, crossing the intersection, urging his horse to go across before the approaching car. * * *
“ Q,. How far was he from the intersection when you first saw him?
“A. Well, he was, I suppose, * * * It was too sudden to figure on. Of course, he was right on the track, otherwise his horse could not have gotten across. He had gotten his horse across.
“ Q. Have you any idea about how'farfrom the track he was when you first saw him?
“ A. Well, I should judge about a distance of fifteen or twenty feet.
“ Q. A distance of about twenty feet?
“ A. Yes, sir; driving up — hurrying up.,
* * * * * *
“ Q. How far was thp ear which collided with the wagon from the crossing where the wagon was struck, when you first saw it?
“ A. I should judge one hundred, or one hundred and fifty feet— over one hundred and fifty feet approaching — approaching rapidly.”

Again:

“ Q,. Now did you notice the motorman at all before the accident occurred ?
“ A. Yes, sir; I saw him braking his car.
Q,. You saw him put the brakes on the car?
“ A. Yes, sir; braking his car — making every effort to stop it.
“ Q. Before the accident occurred?
“ A. Yes, sir.
“ Q. You are certain of that?
“ A. Yes, sir; I will swear it.
“ Q. About.how far off was he then?
“ A. He was almost on to the wagon. He was using his efforts to stop it; of course he was trying to stop it.”

He states that Mr. Hemmingway was crossing from the lower side, going to the upper side, and the car was running toward the. cemetery on the down-town side.”

One witness testifies that he took Mr. Hemmingway’s horse and’ wagon and placed them in the exact position in which his testimony assigns them — that is to say with the horse’s head just six feet from. the down-town rail of defendant’s track, and that on putting the horse in motion, he cleared the track with both horse and wagon in nine seconds; and in the course of several experiments he cleared the track once in eight seconds.

The same witness states that he has measured the distance from the iron gate, which is spoken of by the witnesses as being the position of the yellow car at the moment of time when Hemmingway started his horse, and ascertained the distance to the position the wagon was in to be two hundred and twenty-five feet. He also states that he has frequently since the accident timed the defendant’s electric cars over the intervening space and ascertained that they covered same repeatedly in seven seconds.

By this means it is practically demonstrated that the possible difference in the relative time within which these two respective distances can be made by an electric car on the one hand, and the horse and wagon on the other, is only one and a half or two seconds.

The witness’ conclusion as the result of this calculation is that the difference in speed is nine to one — that is to say that the horse and wagon would cover the space of twenty-five feet (the length of the horse and wagon) during the time the car would cover two hundred and twenty-five feet; that is to say, the car would cover twenty-five feet nine times to the horse and wagon once.

But the horse was at least six feet from the down-town rail of the track, and that distance should be added, thus making the true distance thirty-one feet — that is to say, a little less than one-fourth the distance the horse and wagon had to travel in order to clear the lower rail of the track, and this would require two additional seconds of time and thus necessitate a collision with the car. Nor is the slackened speed of the yellow car taken into consideration in this calculation.

In addition to the foregoing, the width of the track between the rails has not been taken into the account, and one second more would be required for the horse and wagon to clear the upper rail of the track.

Having gone over the evidence very carefully and made the foregoing copious extracts therefrom, we are constrained to say that the trend of it all is to sustain the judgment appealed from.

There are, of course, some inaccuracies of statement in the testimony of the witnesses: but that is a necessity of a case, the particulars of which are given by witnesses who profess bo detail the circumstances of a collision that happened as quickly as an electric shock — the main point of difference between them being with regard to the distance of the yellow car, which caused the collision, from the horse and wagon at the moment the latter was first set in motion to cross the track.

But taking the estimates of Mr. Hemmingway as correct, that the car was two hundred and twenty-five feet away, and his horse’s head only six feet from the down-town rail of defendant’s track, the mathematical calculation of the witnesses demonstrates that a collision was inevitable unless the oar could be stopped, and that seemed impossible.

The proof shows indisputably that the motorneer tried unavailingly to arrest the speed of the car. Having seen the horse and wagon at rest, there was no occasion for him to have made that attempt until after the horse and wagon was suddenly put in motion; and then the brief space of eight seconds was too short a period to render- his efforts available.

The decisions to which the judge a quo referred are ample to support his decision.

Judgment affirmed.

Rehearing refused June 29, 1898.


author: Nicholls, O. J.

text:
    No. 12,761.
    The State of Louisiana vs. Frank M. Robertson.
    Where a party accused of crime .having- been tried and found guilty, has appealed and succeeded in having the verdict and judgment against him set aside for erroneous instructions given to the jury, it is ordinarily too late for him, on the return of the case to the trial court, to move to quash the indictment against him. He would have to present a very strong exceptional case 'to warrant a departure from this rule.
    Ordinarily, such a motion should be made before pleading to the indictment.
    Objections to a -venire should properly be urged by motion to set it aside instead of by a motion to quash indictments presented by the grand jury selected and empaneled from its members. State vs. Britton, SO An. 280.
    Where defendant in a criminal case, represented by counsel, seeks to justify tardiness in moving to quash the indictment against him on the ground that the facts therein urged were not known before the motion was made, it should be shown that his*counsel, as well as himself, was ignorant of the facts.

      A PPEAL from the Fourth Judicial District Oourt for the Parish of Jackson. M. F. Machen, J.

      M. J. Cunningham, Attorney General, A. B. Hundley, District Attorney (P. A. Simmons, Jr., of Counsel), for 'Plaintiff, Appellant.

      Fred. W. Price and B..P. Edwards for Defendant, Appellee.
    Submitted on briefs March 26, 1898.
    Opinion handed down April 4, 1898.
    Rehearing refused June 29, 1898.
    A regular term of the District Oourt for the parish of Jackson was begun on Monday, the 15th of February, 1897, on which day a grand jury was empaneled and sworn, and after being charged by the judge, entered upon the discharge of its duties.
    On Wednesday, the 17th of February, the grand jury returned an indictment, against Frank M. Robertson for manslaughter.
    On February 23, 1898, defendant filed a motion to quash the indictment, alleging that the grand jury which found the bill was not drawn and empaneled according to law, and that the grand jury was not a legal grand jury under the laws of -the-United States; that all their acts and findings were illegal, .null and void.
    1. That the commissioners were not duly and legally notified to be present at the drawing of said jury, on December 15, 1896, from which drawing the grand jury which found and presented the bill was drawn and made up, and all the jury commissioners were not present at the said drawing; that W. A. Downs, commissioner did not sign the proces verbal, and the proces verbal did not state whether he was present, and whether he was ever notified or summoned to be present.
    2. That - the proces verbal of the drawing of the jury failed to state for what term of court the jury was drawn to serve.
    3. That the proces verbal did not state or recite that the jury commissioners were notified of the time and place for drawing the jury, as required by law.

      4. That it did not recite by whom the names of the said jury were drawn from the general venire box.
    5. That the proces verbal had never been filed nor recorded by the clerk of the court as required by law.
    6. That it was not written in the handwriting of the clerk of the court, nor any of the jury commissioners.
    7. That it failed to state that the venire was put into an envelope and sealed as the law directs.
    8. That it was not properly authenticated.
    9. That the proces verbal recited in error, that said drawing was in the clerk’s office, when, in fact and in truth, it was drawn at the storehonse, or place of the commercial business of W. R. Oarroll, and contrary to law.
    • 10. That it stated in error that the witnesses were freeholders, when, in fact and in truth, they owned no land at the time of the drawing.
    11. That in addition to the illegalities above stated to the drawing of the jury — that the grand jury which presented the bill were illegally empaneled; that in empaneling the grand jury, the sheriff drew from a box in which the ballots were, the fifteen names which, with the foreman, constituted the grand jury, which presented the bill, instead of drawing same from the sealed envelope as the law directs.
    That all of said facts were unknown to the defendant until some time during the month of January, 1898. That from said facts irreparable injury had resulted to the defendant.
    Defendant supported the motion by his affidavit.
    On the trial of the motion to quash, defendant offered the proces verbal of the .proceedings of the jury commission as rem ipsam, and placed W. R. Oarroll, the clerk of the District Court, and ex officio one of the jury commission, upon the stand as a witness.
    After having caused the witness to testify to the fact that he was clerk of the District Oourt for the parish of Jackson, he was asked by defendant’s counsel where the venire or jury was drawn on the 15th December, 1896, when objection was made by the State that the proees verbal of the drawing was the best evidence to prove the time and place of drawing — that it was an official document bearing the official seal and signature of a public officer and could not be disproved or attacked by the officer as a witness upon the stand. The objection was overruled and the witness answered that the venire oí jurors was drawn at his store; that the proees verbal was not in his handwriting, nor in that of any of the jury commissioners. On cross-examination he was permitted to be asked why it was drawn at that place, and answered that it was done as a matter of convenience. Witness testified that the jury commissioners for the year 1896 were W. A. Down, J. S. Moore,-T. E. Ray, W. E. Smith and T. J. Smart. That he had summoned all of the commissioners to be present at the drawing; that the signatures of the commissioners affixed to the proees verbal and list were the genuine signatures of the parties named, having been made in his presence. Defendant objected to the clerk of the court being questioned as to whether he had summoned all the jury commissioners to attend the drawing on the ground that if such was the fact it should have so appeared on the face of the proees verbal, and that that instrument could not be altered, modified, eked out or explained by parol without an allegation of fraud or error. He also objected to the same witness being asked the reason why the venire was drawn at his store instead of at the clerk’s office, on the ground that the question simply submitted a matter of opinion to the witness, and the answer would be self-serving. The objections being overruled defendant excepted.
    Defendant offered an extract from the tax roll of the parish of Jackson for the year 1896, showing the assessment made as to S. M. Talbot. The district attorney objected to the same for the reason that it was a copy of the original, and not admissible until the loss of the original was shown. The objection was overruled aud a bill of exceptions'was reserved.
    The District Court sustained defendant’s motion and quashed the indictment.
    The State appealed.
   The opinion of the court was delivered by

Nicholls, O. J.

This case is before us for the second time. Defendant having been convicted of manslaughter appealed. This court having found error in one of the instructions given to the jury, set aside its verdict and the judgment based upon the same and remanded the cause for further proceedings. The case is reported in 50 An.

The State’s contention is that the issues raised by the motion can not be presented for the first time after plea, trial, conviction and sentence. That defendant can not be heard now to raise objections to the manner in which the venire was drawn; that they came too late after verdict; Citing State vs. Canady and Trimble, 16 An. 141; State vs. Thompson, 28 An. 187; State vs. Watson, 31 An. 379; State vs. Miles, 31 An. 825; State vs. Washington, 33 An. 896; State vs. Wittington, 33 An. 1403; Bishop Criminal Procedure, Secs. 866, 887; Wharton Criminal Pleading and Practice, Secs. 344, 350, 610. That, Mr. Wharton says, “irregularities in selecting and empaneling the grand jury which do not relate to the competehcy of individual jurors may usually be objected to by challenge to the array or by motion to quash. This must, of course, be before the general issue. Sec. 344.” Counsel say: “ Besides this the question should have been raised on the first appeal. The judgment thereon is res judicata upon every issue involved, whether raised or not. This is the same indictment he was then tried on.”

“ If the matter b.e open to inquiry it would be against public policy to permit a public officer to contradictas a witness what he had certified to officially.”

Defendant asserts that at the time the motion to quash was filed the plea of not guilty had been withdrawn. That the proceedings of the grand jury were absolutely null, void and without; authority of law; that the nullity can be taken advantage of at anytime, particularly if it was alleged and shown that he was not before aware of the nullity. That this was not a motion for a new trial, nor in arrest of judgment; it was a motion to quash, after plea to the bill was withdrawn. That there was no isssue pending and no issue joined, and the motion was made as early as it was possible to do so at the first term of the court after the discovery. That defendant was deceived by the statement made in the proces verbal that the jury was drawn at the court house which statement was clearly put at issue by the motion to quash as error and a fraud on defendant. That he could not be held for laches in not discovering the fscts earlier. He cites State vs. Jones, 8 Rob. 617; State vs. Parks, 21 An. 251; State vs. Thompson, 32 An. 879; State vs. Wittington, 33 An. 1403, and State vs. Griffin (not yet reported).

The third section of Act No. 99 of 1896 relative to juries in and for the State of Louisiana, and jury commissioners and their duties, declares that three of the jury commission, together with the clerk of the District Court, shall be a sufficient number to perform the duties imposed by the act, provided the members shall have been duly notified by the clerk of the District Court of the time and place designated by him for the meeting of said commission, which notification shall appear from the certificate of the clerk in case of the absence of any member thereof. The fourth and fifth sections fix the place of meeting at the office of the District Clerk, and direct that the proceedings shall be conducted in the presence of two or more competent and disinterested witnesses, freeholders and residents of the parish; that a prooes verbal and record of the proceedings and a list of the parties drawn should be kept of each meeting of the commission, which should be signed by the commissioner present, the witnesses and the clerk of court. That a copy of the pro oes verbal of the meetings of the commission and list of jurors drawn shall, when completed, be delivered to the sheriff, also a copy of the list to be published .in the official journal of the parish, if there be one, or in some other newspaper published in the parish. If there be no official journal or other newspaper in said parish he is directed to post a copy of such list on the door of the court house. The eleventh section declares that all objections to the manner of selecting juries, or to any defect or irregularity that can be pleaded against any array or venire, must be urged on the firBt day of the term, or all such objections shall be considered as waived and shall not afterward be urged.

Notwithstanding the generality of the terms used in this statute, cases may arise which from their special character and the circumstances connected with them may have to be necessarily and unavoidably read out of it as not falling within its grasp: The remedy resorted to by the defendant for relief was through a naotion to quash the indictment found against him. Bishop, in the third edition of his work on Criminal Procedure, Yol. I, Sec. 762, under the subheading “When Such Motion Is To Be Made,” says: “ The favored time for this motion, when it is most likely to be granted, is before plea, and some of the cases appear even to hold that after plea, and especially after issue joined, it is too late (citing authority). Hence, by some tribunals, the motion to quash will be heard only on the with - drawing of the plea by leave, or if the hearing is simply by consent of court, it will operate as such withdrawal. The New Jersey court deems that to make way for this motion leave to withdraw the plea of not guilty should be granted as of course. But the better doctrine we believe to be that in the absence of statutory changes of common law rules the motion has no relation to any plea; that it should be more favored at an early stage of the proceeding than at a later; that whenever presented the court will exercise its discretion whether or not to hear it then; that it may be heard yet will not ordinarily, even during atrial and even after the evidence is in, and, in short, it is in order without any withdrawal of pleas at any time down to the rendition of the verdict. • After verdict it can not be received.” Citing State vs. Barnes, 29 Maine, 561; State vs. Stuart, 23 Maine, 111; Thomasson vs. The State, 22 Georgia, 499; Rice vs. The State, 3 Kansas, 141; State vs. Jarvis, 63 N. C. 556; State vs. McCarty, 4 R. I. 82.

In order to avoid the effect of this rule of practice and the express provisions of our statute, defendant would have to present a very strong, exceptional case to justify us in granting him relief at this late stage of the proceedings.

He says that he presents such a case, as the law is positive that meetings of the jury commission should be held at the office of the clerk of the District Court; that in State vs. Griffin we declared that a drawing made elsewhere was fatally defective; that .he could not be expected to urge an objection of which he had before no knowledge.

The defendant did not, prior to the first trial, make any challenge to the array. He pleaded to the indictment without objection, and was tried by a petty jury of whom he made no complaint. He was found guilty and appealed. The verdict of the jury and the judgment based thereon were set aside on appoal, by reason simply of an erroneous instruction of the court, and the cause was remanded for a new trial. If tried he will go before a jury drawn under new conditions. The particular Motion to which defendant has had recourse for relief is leveled exclusively at the legality of the grand jury which returned an indictment against him, and to its action in charging him as it did with the crime set out in the indictment. It is not directed against the petty jury which tried him. The special purpose of the motion is to strike at the indictment which was the foundation of the action and force the returning of a new indictment. To permit an accused party to hold such action in reserve until after verdict and then declare that he was not before advised of the facts upon which such an application rested would have a direct tendency to cause parties to abstain intentionally from making inquiry into matters which vitally affected them, and which inquiry would as well disclose then as later, and enable them after taking the chances of a verdict to set up (should the original indictment be set aside) the intermediate running of the statute of limitation as against a new indictment or information. Such a practice wouid lead to grave injury in the proper administration of justice, and be justified by no counter injury which would result to the accused by permitting the cause to be carried on under the original indictment. The object of the finding of the indictment was to ascertain through responsible parties whether there existed such a condition of facts as would justify the placing of a particular person upon trial upon a charge of the commission of a particular crime. When matters proceed so far as to reach a verdict of guilty after testimony, taken publicly in open court, contradictorily between the parties-without objection to the personnel of the petty jury which found the verdict, we think the danger of any injury having been inflicted upon the accused simply by reason of the place where the grand jury which brought the charge was drawn without any attack upon the personnel of the grand jury rests upon a very narrow basis and is more imaginary than real. The setting aside of a verdict on appeal, of course, withdraws from it any vital force for the purpose of a conviction, but we think it leaves behind it an effect sufficient to enable the indictment on which it is based to withstand any attack upon it certainly in the absence of any charge of its having been returned by prejudice or other improper motives, or by improper persons, or as having been returned without a sufficient basis on which to place the subject matter of the indictment before the country for examination and trial.

We note in this particular case, that while the defendant has taken oath to the fact that neither he nor his attorneys were cognizant of the state of facts on which the motion to qua h is based, that counsel themselves have taken no such oath. The granting of a motion to quash is, we think, more or less a matter of discretion. We see no ground in this case for the exercise of this discretion in favor of the accused; on the contrary, we think that were we to do so it would be on no sufficient basis and would lead up to prejudicial results as a precedent. We do not say that some special case might not be presented which would justify exceptional action in this matter.

This view of the situation dispenses us from passing upon other issues, but we can not permit the occasion to pass without expressing our great disapprobation with the course pursued in this case in making out and signing a proees verbal containing the recitals found in that filed in this proceeding. The clerk of the court testified as a witness that the recital' made in the proees verbal, that “ the jury was drawn at the office of the clerk of the District Court,” was not true; that it was for convenience drawn at his own store. In matters affecting the honor, the liberty and the lives of their fellow-citizens, parties charged with public duties should feel a heavier sense of responsibility than was felt by the jury commission and clerk of court in this case. We need not now decide whether the clerk would or would not be authorized as a witness to contradict facts certified to by him officially, nor whether he should have been called on to amend or have been permitted to amend the proees verbal, for we trust this will be the last occasion where such a question will arise. It is sufficient for us to say that the proees verbal directed to be drawn up by Sec. 5 of Act 99 of 1896 is not an authentic act in the sense of Art. 2236 of the Civil Code, and that it can be controverted if erroneous by parties affected by false recitals thereon. The signatures of the parties to the instrument carry with them simply prima fade presumption of the truthfulness of the recitals made. Marvel vs. Manouvrier, 14 An. 5; Grant vs. Harris, 16 An. 323; Hennen’s Digest, Vol. 1, page 212, No. 3.

For the reasons herein assigned it is hereby ordered,"adjudged and decreed that the action of the District Court in sustaining defendant’s motion to quash the indictment found against him herein be and the same is hereby set aside; the indictment is reinstated and the cause is remanded to the District Court for further proceedings according to law.

Rehearing refused June 29, 1898.