text:
    No. 8350.
    The State of Louisiana ex rel. Isidore Newman vs. E. A. Burke, Treasurer, et al. P. O. Fazende and John Elliott et al., Intervenors.
    A writ of error, though operating as a supersedeas, does not have the effect of reviving or continuing in force the injunction dissolved by the judgment from which such writ of error has been obtained.
    But it is also the rule, based upon a principle of comity, that the court from whose judgment the supersedeas has been taken, should not render any decree during the pendency of said supersedeas, which would practically destroy its effects.
    Therefore, this Court will not, in the present case and at the instance of the relator, order the payment of an entire fund to him, whilst other parties are also claiming payment out of it, in the Supreme Court of the United States, under a writ of error to this Court, which operated as a supersedeas.
    The principles upon which the decision of this Court is based in the Hart case are formu* lated anew in this case.
    APPEAL from the Civil District Court for the Parish of Orleaus. J.

      Kennard, Howe <& Prentiss and H. J). White for the Relator and Appellant.

      W. S. Benedict for P. 0. Fazende, Intervenor and Appellee.

      Lacey <& Butler for John Elliott, Iutervenor and Appellee.

      J. MeOonnell for the State National Bank, Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

The relator represents that he is holder of warrants on the general fund of the State for the years 1880 and 1881; that under the constitutional debt ordinance of 1879, the interest taxes collected to meet the coupons of the consolidated bonds falling due on January 1st, 1880, were transferred to defray the general expenses of the State, and are now a part of the general fund for the payment of said expenses; that the said fund, as thus constituted, is ample.; and much more than sufficient to pay his said warrants, which, under Act 71 of 1880, are lawfully entitled to be paid out of the same; that it'is the ministerial duty of defendants to transfer said monies to the general fund and to pay the warrants held by him out of the same; but that hotwithstanding-due demand they refuse to perform the said duties; and he, therefore, prays for a writ of mandamus to compel, them to do so.

The defendants, viz : the Treasurer, the Auditor and the Fiscal Agent of the State, answer, denying the existence of the ministerial duties charged, and especially averring that in the suits of State ex rel. Hart vs. E. A. Burke, Treasurer, et al., and of S. J. Hart vs. E. A. Burke, Treasurer, et al., a claim is made against them for the payment out of said fund, of interest, coupons on consolidated bonds due January 1st, 1880, to the amount of $75,000, and that an injunction was issued restraining them from appropriating said funds as directed by the constitutional, debt ordinance; and that although, under the decree of this Court in said cases, the claim of said Hart was rejected and the injunction obtained by him was dissolved, yet that said Hart had obtained a writ of error, with supersedeas, from the Supreme Court of the United States to this Court in said suits, and that the same are now pending undetermined in the said Supreme Court of the United States.

P. 0. Fazende, as the holder of certain coupons of interest on consolidated bonds maturing January 1st, 1880, intervened in this suit and prayed for judgment rejecting- the demand of the relator, and ordering the defendants to pay to him, out of the fund referred to, the amount due on his said coupons.

John Elliott and others, citizens of New York, filed another intervention, as holders of similar interest coupons, averring that-they had brought suit in the late Third District Court for the Parish of Orleans, for a mandamus to compel the defendants to pay their said coupons out of the same fund, and otherwise to execute and carry out the funding Act of 1874J which suit was removed to the Circuit Court of the United States, and, after decision' there, was carried by writ of error to the Supreme Court of the United States, where the same is now pending-undecided; and praying for judgment rejecting the demand of the relator, and enjoining- and restraining- the defendants from paying- or applying any portion of said fund to any other purpose than the payment of interest coupons on the consolidated debt.

Upon proper issues formed, judgment was rendered by the lower court in the • following terms: It is ordered that there be judgment in favor of-defendants and intervenors, and that the petition for mandamus made by relator be dismissed.”

We are surprised to find from statements iu briefs of counsel, and: indeed from statements in the petitions of appeal filed by the defend-, ants, that this judgment is interpreted as importing a decree in favor of the intervenors and against the defendants, granting the former the relief prayed for in their interventions. We have searched the record, in vain for any other judgment than the one above quoted; which is. accompanied by no written reasons explanatory thereof.

Certainly it does not admit of the interpretation above suggested. No judgment whatever is rendered against the defendants, and on the. contrary, an unqualified judgment- is renderedin theirfavor.

The judgment can mean nothing else than that, while refusing any affirmative relief sought by intervenors, as against the defendants, itis iu their favor as well as in favor of defendants, in so far as they join in resisting the demand of the relator, which the judgment rejects.

Adhering to the views expressed by us iu the case of Hart vs. Burke, 33 An. 498, it is clear that the exception filed by relator and defend1 ants to the intervention of Fa-zende should have been maintained and his intervention should have been dismissed. We there held that Hart, who stood in identical case with this intervenor, could neither-claim judicial enforcement of his own alleged rights upon this fund, nor prevent the- State officers from disposing of them as directed by the State. He has no right to interfere with the disposition of a fund, in which he has no interest susceptible of judicial cognizance or enforcement. The like fate would necessarily attend the intervention of Elliott and others, unless saved by the allegations therein contained touching the pendency of their prior suit to subject the very fund here in controversy to the satisfaction of the claims, set forth in their petition.

This raises a serious and delicate question of comity of courts, identical in character with that presented in the plea of the defendants setting up the continued pendency of the Hart suits under the writ of error from the Supreme Court of the United States to this Court.

So far as the injunction of Hart is concerned, the authorities seem to be quite clear that the writ of error, though operating as'a supersedeas, did not have effect to revive or continue in force the injunction which had been dissolved by our decree. Slaughterhouse Cases, 10. Wall. 274; Wood vs. Dwight, 7 Johns. Ch. 295; High on Inj. § 893 and authorities there cited.

The fact remains, nevertheless, that, in his mandamus proceeding, Hart sought the judicial enforcement of his alleged right to have his coupons satisfied out of the particular fund from which the relator in the present suit seeks to have his own claims paid; and that, although we decided adversely to Hart’s right, our decision thereon is not final, but his case has been carried, on writ of error, to the Supreme Court of the United States, where it is still pending, and abides the final determination of that Court.

So, before the institution of the present proceeding, Elliott et al. had brought their suit before a court of competent jurisdiction to subject the same fund to the satisfaction of their claims, and though the Judge of the United States Circuit Court denied their demand, as we did in the Hart case, yet they, in like manner, have appealed to the United States Supreme Court, in which their cause is still pending.

■It is manifest that if we, at the suit of creditors like the relator, should order the payment of this entire fund to them, the effect would be to nullify and destroy the remedial power of the Supreme Court of the United States, and to render its decrees nugatory in controversies upon which its jurisdiction had attached, before the institution of relator’s proceeding. This would operate practically to defeat its jurisdiction and take away the right of these parties to prosecute their suits to any useful or effective purpose.

It has been said by the Supreme Court of the United States ; “ it is a doctrine of law too well established to require citation of authorities, that where a court has jurisdiction, it has a right to decide every question which occurs in the cause; and that where the jurisdiction of a court and the right of the plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by'proceedings in another court. These rules have their foundation not merely in comity, but on necessity.” Peck vs. Jenness, 7 How. 612.

And the same Court has said : “It forms a recognized portion of the duty of this Court to give preference to such principles and methods of procedure as shall serve to conciliate the distinct and independent tribunals of the States and of the Union, so that they may co-operate as harmonious members of a judicial system co-extensive with the United States, and submitting to the paramount authority of the same Constitution, laws and federal obligations.” Taylor vs. Carryl, 20 How. 595; see also, Hagan vs. Lucas, 10 Pet. 401; Taylor vs. Taintor, 16 Wall. 370; New Orleans vs. Steamship Co., 20 Wall. 392.

These principles have usually been invoked in cases of conflicting seizures of property, but we can discover nothing to prevent their application to cases like the instant ones, involving the disposition of a particular fund, claimed under contradictory titles, and especially where the fund is so situated as not to be susceptible of being taken into judicial custody by any remedial process.

When our attention is properly called, in such a case, to the pendency of prior judicial proceedings in a court of competent co-ordinate or appellate jurisdiction, asserting claims on a fund so situated, we feel bound to respect the jurisdiction over the res so acquired, and to abstain from doing anything to defeat that jurisdiction in subsequent proceedings before our own courts.

We, therefore, hold that Elliott et al. had a proper standing in court, under their intervention, for the purpose of informing the court of the pendency and nature of their proceedings in the courts of the United States against this fund, and of ashing that it should do nothing in this suit to impair or destroy their rights and remedies under said proceedings.

The defendants had an equal right to plead, as a defense, the pendency of the Hart suit, and, indeed, it was clearly the part of prudence for them to do so, in order to avoid questions of responsibility in case of conflicting decrees in the several suits against them.

Having thus settled the principles by which we should be guided, it remains to determine whether the allowance of relator’s demand herein would, in any manner, jeopardize, or interfere with, the payment of the claims of Hart or of Elliott et al. out of this fund, in case they should recover judgments to that effect in their pending suits. This record informs us that the fund under control of defendants, out of which these several, parties claim satisfaction, exceeds three hundred and sixty thousand dollars. Hart’s claim amounts to seventy-five thousand dollars. That of Elliott et al. amounts to seventy-eight thousand dollars, making a total of one hundred and fifty-three thous- and dollars, and leaving a sum exceeding two hundred thousand dollars, not in any manner claimed or necessary for the satisfaction of any judgment which they may recover.

The claim of the relator is for the sum of $79,833.29.

We can perceive no possible reason, under these circumstances, why we may not proceed to adjudicate the claim of relator without in any manner affecting the rights of Hart and of Elliott et al. in their pending suits.

Is the relator entitled to the relief asked in his petition ?

The terms of the constitutional debt ordinance expressly direct the fund in controversy to be “ transferred to defray the expenses of the State government.” Sec. 3. The legislature of the State subsequently passed Act No. 71 of 1880, entitled, “An Act making appropriations to defray the ordinary expenses of the State government, * * for the year ending December 31st, 1880, and for the year ending December 31st, 1881.” These appropriations were, by the terms of the Act, payable out of the general fund, to which, under the direction of the constitutional debt ordinance, the fund in controversy was transferred. Relator, it is admitted, is the holder of warrants issued under the Act 71 of 1880, for expenses of the State government, and payable out of: said general fundi

No defense is made except the denial that the duties, the performance- of which is demanded, are ministerial duties. What are those duties? They are:

First. That the State Auditor and Fiscal Agent should conform their boohs -to the requirements of the constitutional ordinance, by transferring the monies referred to therein to the credit of the general fund.

Unless they are to disobey the mandate of the sovereign, such is their plain duty, and it is obviously ministerial.

Second. That the Treasurer should give checks upon the Fiscal Agent for the amount of the warrants held by him.

It is averred and not denied, that there is in the treasury, belonging to the general fund, ample funds to pay all outstanding and unpaid warrants thereon, for said years 1880 and 1881.”

Such being the case, we can conceive of no clearer duty than that of the Treasurer to pay these admitted valid warrants. We can find no possible reason for refusing the relief sought by relator.

It is the legitimate and logical sequence of our decision in the Hart case.

We would gladly leave this fund untouched, to abide the final determination of the interests of all parties, but our clear duty is to decide' causes as they arise and according to the law as we interpret it, and without ourselves reversing our opinion in the Hart cases, we cannot deny to relator the relief asked by him.

That case was, and is regarded by us as involving by far the most important questions ever presented to us for determination. Our decision therein was rendered upon the most mature consideration, and has been,- ever since, the subject of our constant thought and research. The result has been to confirm and strengthen our conviction of its correctness.

The briefs filed by the learned counsel for Elliott et al., form a valuable thesaurus of authorities upon questions of law never disputed by this Court, but which are in no manner germane to the Hart case. As the same questions are involved in this case, and as the argument exhibits such a misunderstanding of the principles on which our decision rests, we feel impelled to formulate them anew, lest the misconstruction may be attributable to some obscurity in our opinion. They are as follows:

1. The fund in controversy is composed of monies derived from taxes levied by the State, payable to the State, collected by the State, and now held and possessed by the State, in her own treasury.

2. The claim of Hart was a claim against the State, founded on a contract of the State, demanding payment out of monies belonging to and in possession of the State.

■ 3. The State possesses an absolute immunity from suit in her own tribunals, and. no court has power to compel her, against her will, to perform any obligation of her contracts without reference to the nature thereof.

4. The defendants in the case were officers.of the State, sued alone in their capacities as such, and had no relation to or power over the fund in controversy excepting as officers of the State. They were not individual trustees, and to say that as officers they held these funds in. trust, (even if that were true) is simply another form of words for saying that the State held them in trust. But the State can be no more compelled judicially to execute a trust than to perform any other obligation whatever.

5. As the State, directly, could not be judicially compelled to perform her contract, neither could her officers be judicially compelled to perform it for her against her will. A State is an intellectual being incapable of acting or being acted upon except through her officers. •If the State were amenable to suit she could only stand in judgment through her officers, and judicial compulsion could only he brought to bear upon her through them. If her officers may be compelled to perform her contracts against her will, by proceedings directed' against them, it is clear that her immunity from suit, instead of being a substantial sovereign right, would be but an empty sham—a pretense, a mockery.

6. The writ of mandamus (when directed to State officers) is an order issued in the name of the State to compel them to perform some duty imposed upon them by the State; in other words, to execute the will of the State.

. 7. When a mere legislative prohibition is set up by officers of the State as. an excuse for non-performance of duties which had been imposed upon them by the will of the State, and which, but for said prohibition would continue to exist, inquiry is proper to ascertain which is the will of the State, the antecedent law imposing the duty, or the subsequent legislative act revoking it. Legislatures exercise only delegated powers and their acts are only acts of the State when within the scope of said powers. If, therefore, the subsequent act he discovered to be beyond those powers, because in violation of the Constitution of tiie State or of the United States, it is not the act, nor expressive of the will of the State; and that will, as expressed in the prior valid act, must be executed.

8. But the State herself, in framing her own organic law, exercises no delegated powers. Her will, as expressed therein, is absolutely and unequivocally her own original and independent will. .The judiciary has power, in proper cases, to disregard and set aside that will on the ground that it violates the Constitution of the United States by impairing the obligation of a contract; but that power only exists as an incident to the right and duty of a court to enforce the particular contract by reason of jurisdiction acquired over the subject matter thereof and over the parties thereto. Familiar instances of the exercise of sucli power are presented in proceedings against municipal and other subordinate political corporations, which are amenable to suit and subject to judicial control, precisely like private persons. Inasmuch as no court can ever acquire.jurisdiction over a State or to enforce a contract of the State against her will, it follows that no court can ever have power to decree the invalidity of any provision of the State Constitution on tile ground that it impairs the obligation of such a contract. But unless the court may decree the nullity of such aprovision on such a ground, it follows that it cannot compel the officers of the State to do anything in violation thereof, because the Constitution of the State is their exclusive mandate and absolutely binding on them.

9. Hart was, therefore, without right to demand judicial aid to compel the officers of the State to do that which the State forbade them to do; and the courts were powerless to grant such relief.

10. Admitting, argmnenti gratid, that the denial of mandatory relief does not necessarily exclude the right to relief by injunction, yet Hart’s right to an injunction to restrain the officers of the State from'applying the funds in controversy to other purposes than those to which he claimed they were applicable under his alleged valid contract, necessarily fell with his right to enforce their application to the satisfaction of his own claim. If he could not get'the fund, it was matter of no consequence to him what was done with it. Davis vs. Gray, decided by a divided Court, stands alone as authority in support of the right of a Court to restrain State officers by injunction from doing something which they were required to do by the Constitution of the State. But there it was only necessary to restrain the officers of the State from executing the prohibited acts, in order to leave the complainants in full possession and enjoyment of the rights which they held under their contract, and which required no further affirmative State action to render them effective. Had the case been otherwise, as in Hart’s case, so that complainants’ relief would have required, in order to be of advantage to them, a mandatory order compelling the officers to do that which the State Constitution, from which they derived all their powers, forbade them to do, we are satisfied that the Supreme Court of the United States would have decided as we have done.

The love which equity is said to have for trusts must be restrained within the limits of judicial power. Pier arms, however long, have no force to break through the impenetrable fortress in which the Constitution guards the rights of States.

The sacredness of contracts is a precious object in the eye of courts; but the preservation of the fundamental principles upon which the structure of our wise and beautiful system of government rests is of far higher value and importance. No authority has ever been cited, and none exists, asserting or recognizing the power of any court to compel the officers of a State, against the acknowledged will of the State, as expressed in her Constitution, to take money out. of her treasury and to apply it to the satisfaction of her alleged contract obligations.

In Osborne vs. Bank, 9 Wheaton, 739, the bill specially charged that the specific moneys were in possession of the defendants, not in their characters as officers, but as individuals, (p. 742) and the decree was against them as individuals, on the ground that they had taken, or held, possession thereof without warrant of law.

The distinction between this and the Hart case is obvious.

It is not pretended that the funds here in controversy are not lawfully in the treasury of the State, or that the defendants here have any other relation thereto, than as lawful custodians in their capacities as officers of the State.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and, proceeding to render such judgment as should have been rendered by the lower court, it is now ordered that the intervention of P. O. Pazende be dismissed, and that the demand of the intervenors, John Elliott et al., be rejected, except so far as herein granted; and that the writ of mandamus prayed for in the petition of relator issue and be made peremptory, so far as necessary for the payment of relator’s claim, without prejudice, however, to the right and duty of the defendants to retain in statu quo so much of the fund in controversy as may be necessary to satisfy the pending claims of S. J. Hart and John Elliott et al., as set forth in the answer of defendants herein and in the intervention of Elliott, in case judgment should be rendered in their favor in the judicial proceedings instituted by them and now pending in the Supreme Court of the United States, as appears from the pleadings herein; costs of the lower court and of this appeal to be paid by defendants and intervenors.

On Application for Rehearing;.

The points upon which we are asked to amend our decree are of á character that we may dispose of them on this application without the necessity of granting a rehearing.

I.

In our opinion we took from an agreement found in the record the statement that the amount in the treasury to meet payment of coupons due January 1, 1880, was $369,344.83. By a- stipulation in writing, signed by all the parties in interest and filed with this application for rehearing, it is admitted that, through inadvertence, this amount was erroneously stated, and that the correct amount is $330,000, and it is agreed that a correction may be made accordingly, so as to conform to the facts. We accomplish the object of this request by thus noting the agreement and approving the correction as prayed for.

II.

Our attention is called to the following expression in our opinion, viz : it is alleged and not denied, that there is in said treasury ample funds to pay all outstanding and unpaid warrants for the years 1880 and 1881.”

Although there was no denial, general or special, in the answers of the Treasurer and of the Auditor, it is pointed out that the answer of the Fiscal Agent does contain a general denial; and the defendants aver that, in point of fact, even with the addition of the interest fund to be transferred to the general fund, there will not be sufficient to pay all outstanding warrants of 1880 and 1881.

Without discussing technical questions of pleading, we think our decree may be recast so as to protect the interests of all claimants upon the fund, without injuring any possible legal rights of relator.

He is, and can be entitled only to his rateable share of the fund arising from a distribution thereof, according to law. If it be true, as alleged by him, that it is sufficient to pay all, of course, he will be paid in full. If that be not true, we avoid the risk of giving him more than he is legally entitled to, of which, certainly, he cannot complain.

This record does not enable us to determine the relative rights of relator and other warrant holders upon the fund, and we confine ourselves to a general order to distribute according to lawq” leaving conflicting claims of warrant holders, founded on differences in dates or nature, to be settled in other proceedings.

It is, therefore, now ordered that our former decree herein be amended so as to read as follows:

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed, and, proceeding to render such judgment as should have been rendered by the lower court, it is now ordered that the intervention of P. 0. Fazende be dismissed, and that the demand of the intervenors, John Elliott et al., be rejected except so far as hereinafter allowed, and that the writ of mandamus, prayed for in the petition of relator, issue and be made peremptory, in so far as to command the defendants, severally, to conform their books to the requirements of the law, by transferring the interest taxes collected to meet the coupons of consolidated bonds falling due January 1st, 1880, to the general fund of the State, without prejudice, however, to the right and duty of defendants to retain in statu quo so much of the fund in controversy as may be necessary to satisfy the pending claims of S. J. Hart and John Elliott et al., as set forth in the answers of defendants herein and in the intervention of said Elliott et al., in case judgment should be rendered in their favor in the judicial proceedings instituted by them and now pending in the Supreme Court of the United States, as appears from the pleadings herein ; and in so far, further, as to command said defendants to distribute said funds transferred as aforesaid, according to law, in payment of warrants, including those of relator, drawn upon the general fund for expenses of the State government for the years 1880 and 1881; costs of the lower court and of this appeal to be paid by defendants and intervenors.

Rehearing refused.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 8710.
    The State of Louisiana ex rel. J. H. Keller vs. The Funding Board.
    The only obligations of public charitable institutions entitled to be funded under Act 104 of 1880 and the Constitutional ordinance for relief of delinquent taxpayers, are those given for “ necessary supplies of food, clothing, medicine and hire of employees.” Supplies of common soap for the general purposes of the Charity Hospital cannot be held to fall under the class of medicine.
    The sanitary importance of soap in all its uses may be predicated equally of fuel, beds and bedding, kitchen and table utensils and other supplies of like character, but none of them could be considered as “ medicine,” under any definition of the word.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Braughn, Buck & Binkelspiel and W. O. Mart for the Relator and Appellant.

      J. G. JSgan, Attorney General, for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.


text:
    Nos. 7760, 7894, 8070.
    In the Matter of the Louisiana Savings' Bank and Safe Deposit Company.
    The charter of a corporation can only be forfeited at the instance of the State.
    Courts of this State are not without jurisdiction ratione materia: over the subject matter of api)oiuting receivers to corporations; but they should exercise such jurisdiction only iu proper cases.
    In a case where the charter of a corporation vests the liquidation in the stockholders through commissioners elected by them, and where the stockholdeis consent to the appointment of receivers by the court, at the suit of creditors prayiug therefor, the judgment of the court appointing such receivers will not be disturbed on the appeal of creditors:
    Where a court has appointed a person as receiver, who absents himself and fails to file the bond required under order of the court, it lies within the discretion of the court to remove him and appoint another in his stead.
    APPEAL from the Fifth District. Court for the Parish of Orleans. Bogers, J.

      Blanc <& Butler for John Crossley & Sons, Appellants i
    1. The charter of a corporation can only be forfeited at the instance of the State. 18 An. 677; 3 An. 954; 31 An. 836.

      % Under tho law of Louisiana a corporation has no right to make a voluntary cession of its assets. 5 Rob. 63 ; 15 An. 19 • 18 An. 685; 31 An. 836.
    3. When tho law provides a method for the liquidation of a corporation, none other can be resorted to; and where the charter provides for liquidators to be chosen by the stockholders, tho courts ctf the State have no right to interfere iu the liquidation. 4 Rob. 517 ; . 11 Rob. 418; 30 An. 161; 34 Au. 754.
    4. In the power to appoint there is an implied power to fill a vacancy. 9 An. 40.
    5. The Louisiana courts cauuot remove a liquidating commissioner, chosen by the stock* Judders in conformity to the statute. The power of removal vests solely iu tho stockholders. High on Receivers, Secs. 288-290 ; 30 An. 16 L.
    6. Officers of a corporation have no right to waive citation and usual delays, and confess judgment in proceedings which threaten to destroy the life of the corporation. 31 An. 836.

      James JD. Ooleman; Kennard, Howe <& Prentiss: Braughn, Buck <& DlnJcelspiel, and Miller, Finney & Miller for E. Conery & Sou and others, Appellants.

      Bouse & Grant for the Third National Bank of St. Louis, Appellant. W. 8. Benedict and Chas. 8. Bice for the Commissioners, Appellees.
   The opinion of the Court was delivered by

Fenner, J.

The records inform us that at a meeting of tho Board of Directors of the Louisiana Savings’ Bank and Safe Deposit Company, held' in June, 1879, the president, Edward C. Palmer, informed the Board of certain matters affecting the Bank, which induced him to recommend that immediate steps should be taken to put the corporation into liquidation, and upon his suggestion the Board passed a resolution to tlie above effect and to call a meeting of depositors to recommend tlie names of three commissioners of liquidation, to be voted for by the stockholders, under the provision of the charter.

■ Tlie meeting- of depositors was accordingly held, attended by a large number, at which the president made a lengthy statement of the circumstances which rendered a liquidation necessary, and “ after considerable discussion and tlie presentation of many suggestions of how 1o avoid complications of court proceedings, etc.,” a resolution was unanimously adopted by the meeting requesting the stockholders of the Bank, in accordance with Section 8 of the charter, to appoint Messrs. Theobald Forstall, W. C. Raymond and E. C. Palmer, as commissioners to liquidate the1 affairs of the Bank, and “if necessary, to have the appointments ratified and confirmed by any court of competent jurisdiction.”

Thereafter, a meeting of stockholders was held, representing 3,100 shares of stock, who elected as commissioners tlie three gentlemen above, named, and passed a resolution “ that it is the opinion of the stockholders that in order to secure a speedy and economical liquidation and distribution of the assets, the commissioners this day elected be confirmed by the court, and that such steps be lateen by the present officers of the corporation as are necessary to effect that purpose."

In evident execution of this resolution the following “ steps ” were determined on and taken to effect the purpose.”

A petition in the name of sundry depositors was presented to tlie Fifth District Court, representing that the corporation had suspended payments with the intention of going into liquidation; that the depositors had recommended to the stockholders the appointment of For-stall, Raymond and Palmer, as commissioners; that it was believed to be the unanimous wish of the. depositors and stockholders that the liquidation should be had through said parties as commissioners; that it was to the interest of all creditors and stockholders that a fair and economical liquidation should be liad; and that it was within the equity powers of the court to appoint commissioners or receivers, or to confirm the recommendations made as aforesaid.

•' Tlie petition concluded with a prayer that tlie court would appoint said Forstall, Raymond and Palmer, commissioners or receivers, with authority as such, to liquidate, etc.

To this petition answer was filed in the name of the Bank, appearing by its president, Edward C. Palmer, wherein the allegations of tlie petition were admitted and the proceedings of the stockholders were set forth, and it was stated to be their wish, as expressed in their resolution, a copy of which was annexed, that the parties named should be appointed as commissioners or receivers, or tlieir said election confirmed'by the court, as prayed for in said petition.”

On these pleadings the court entered judgment decreeing that the charter of the corporation be declared forfeited ; that its affairs be proceeded with by liquidation; that Forstall, Raymond and Palmer be appointed as commissioners and confirmed as such, on taking oath as required by law : that an inventory be taken and that the amount of bonds to be given by said commissioners be fixed when the inventory shall be taken and filed.

In pursuance of this judgment all three of the commissioners appeared forthwith and took the oath required thereby.

An inventory-was taken and filed.

An order appears to have been made, though not found in the record, fixing the amount of bond to be given by the commissioners, which was furnished by Forstall and Raymond, but not by Palmer. Important steps were taken in the liquidation; large collections were made ; privileged debts were audited and paid; a provisional account was filed and homologated after due advertisement; other acts of liquidation were performed. Palmer, having absented himself from the State for a long period without leave, and without authorizing any one by power of attorney to represent him, and having failed to furnish bond as required, proceedings were taken to destitute him, and on the 31st of October, 1879, the court, reciting the foregoing facts, entered judgment removing him and appointing in liis place Andrew Hero, who duly qualified and has since acted as commissioner.

During all this period, notwithstanding the evident publicity of the proceedings, it does not appear that any creditor or stockholder ever objected to the action of the court, or to the mode of liquidation, or to the authority of the commissioners.

The records now before us present four appeals, viz :

1. One taken January 10th, 1880, by J. H. Keller, E. Conery and E. Conery & Son, creditors of the corporation, from the judgment of July 1st, 1879, forfeiting the charter and appointing the commissioners, and also from the judgment of October 21st, 1879, destituting Palmer and appointing Hero.

2. One taken January 16th, 1880, by E. C. Palmer, from the last named judgment only.

3. One taken March 23d, 1880, by John Crossley & Sons, creditors, from both judgments.

4. One taken June 1880, by the Third National Bank of St. Louis, a creditor, from the first judgment only.

We will consider the various questions involved in the order following:

I.

So far as that part of the judgment of July 1st, which decrees forfeiture of tlie charter, is concerned, it must clearly be reversed, for two reasons:

1st. It is idtra petitionem. Morgan vs. McGowan, 4 M. 289; Barckley vs. Evans, 2 N. S. 241; Saniet vs. Sainet, 8 N. S. 469; Lobdell vs. Bank, 8 An. 117; Tanner vs. King, 10 An. 485.

2d. The charter of a corporation can only be forfeited at the instance of the State. State ex rel. Lannes vs. Attorney General, 30 An. 954; Riggin vs. Union Bank, 18 An. 677; State vs. Citizens’ Bank, 31 An. 836; 31 An. 631.

II.

It is claimed that the judgment of July 1st is absolutely null, by reason of the want of jurisdiction of courts of this State to appoint receivers or commissioners for the liquidation of corporations.

When, in the case of Baker vs. Portable Company, 34 An. 754, we laid down the general rule that courts have no jurisdiction to appoint receivers for corporations in absence of express statutory authority,” the word jurisdiction was, perhaps, inaccurately used.

The exception which we maintained in that case was not one to the jurisdiction of the court, but one of no cause of action.

Certainly we did not mean to impute to the courts such defect of jurisdiction ratione materice as could not be supplied by consent and as would render their judgments in the premises absolute nullities. We rather meant to lay down a rule of judicial action than a canon of j urisdiction—a limitation of judicial right rather than of judicial power. That rule is founded upon the respect and protection due to the rights óf a corporation in common with those of other persons. As we said in that case: “ A corporation is a person, whose possession and con-

trol of its own property and affairs must be respected like the similar rights of individual persons. They cannot be interfered with in preliminary proceedings and in advance of judgment, except in cases specially provided by law and on strict compliance with the requirements thereof.”

The immunity from such interference is evidently personal, and capable of being waived by proper and valid consent, in the case of corporations, as in the case of individuals.

The principles recognized in the following cases, in pari materid, are fully applicable: Frazier vs. Wilcox, 4 Rob. 517; United States vs. Bank, 11 Rob. 418; Martin vs. Blauchin, 16 An. 237.

The jurisdiction of the courts over the subject matter of appointing receivers to corporations, and their power to make such appointments in proper cases, have been frequently recognized. Stark vs. Burke, 5 An. 740; N. O. Gaslight Co. vs. Bennett, 6 An. 456; Brown vs. Union, 3 An. 182; Fallett vs. Field, 30 An. 162.

It is clear, therefore, that the judgment appealed from is not an absolute nullity for want of jurisdiction, and the question left for our determination is whether there was error in the judgments appealed from.

III.

Under the charter of this corporation the right of appointing commissioners for its liquidation is vested in the stockholders.

If the action of the court rested upon the consent merely of the Officers or Board of Directors of the corporation, we should question the sufficiency of such a consent to sustain the first judgment, because such officers and directors would have no power to deprive the stockholders of the right so vested in them.

But it is to he observed that in filing the answer herein the president acted, notin his simple official capacity, but as the direct and special mandatory£ iof the stockholders. In the resolution adopted by them advising the confirmation by the court of the commissioners elected, it was expressly directed that u such steps should be taken by the present officers of the corporation as are necessary to effect that purpose.”

Evidently the filing of the answer was a compliance with that request or direction.

The aspersions thrown in some of the briefs upon the validity of the action of the stockholders’ meeting, by reason of the insufficiency of the notices given and of absence of evidence as to the proportion of stock represented and as to the authority of agents who voted for the owners of some of the stock, arc entitled to no consideration. The only effect would be to question the binding effect of the action of the meeting upon absent stockholders. But no stockholder is before us complaining in that capacity of the action of the meeting.. The appeals are taken by creditors alone.

Does the action of the court conform to the consent and wish of the stockholders as expressed in their resolutions?

We are satisfied that it does.

The object was to place the liquidation-under the control of a single court, before which all claims should be urged and all suits brought, thus avoiding harrassing litigation before different tribunals. The mere confirmation by a court of commissioners, whose authority was perfect and needed none, would have .been superfluous and absurd.. The obvious purpose was that the court should make these persons its own officers, to liquidate the corporation as such and subject to its exclusive orders and control, and thus to vest the liquidation in the court. Such was the interpretation adopted by the officers who were instructed to carry the resolution into effect, and its correctness is attested by the fact that no stockholder has ever complained of the action of the court.

We hold, therefore, that the court acted with authority and committed no error in appointing receivers to this corporation, on petition of creditors and upon consent thereto of the stockholders, in whom was vested the right of appointing commissioners of liquidation.

IV.

So far as the judgment destituting Palmer and appointing Hero in his stead is concerned, we find no error therein.

The effect of the first judgment of the court was to make the receivers appointed from that date officers of the court, and to invest the entire control of the liquidation thenceforward in the court.

The conduct of Palmer, in absenting himself without leave and without giving power of attorney to any one to act for him, and his failure' to give bond as required by order of court, were just grounds for his removal, and the very statement of them answers the objection made to absence of notice to him.

Equally clear was the power of the court to appoint a new receiver. High on Receivers, Secs. 821, 825.

There was no necessity to consult the stockholders in the premises, they having, as we hold, abdicated their functions in that regard in favor of the court.

This case differs foto ocelo from that of State vs. Citizens’ Bank, 31 An. 836.

In conclusion, we would say that the interests of the appellant creditors can suffer no harm from our decree.' The fears expressed in their petitions of injuries resulting from the doings and acts of the receivers, as persons acting without lawful authority, will now be set at rest. There is no reason why all their rights should not be as effectually protected under the liquidation now in progress as in any other mode.

On the other hand, great confusion and damage to the interests of all might have resulted from a decree destroying the authority under which this liquidation has been so long conducted.

It is, therefore, ordered, adjudged and decreed, that such portion of the judgment of July 1st, 1879, as decrees the forfeiture of the charter of the Louisiana Savings’ Bank and Safe Deposit Company be annulled, avoided and reversed, and that in all other respects the two judgments appealed from be affirmed, costs of appeals to be paid by the appellees, except as to the appeal of E. C. Palmer, the costs whereof are to be paid by him.


author: Bermudez, C. J.

text:
    No. 8309.
    Mrs. Ann Maria Wardle vs. The New Orleans City Railroad Company.
    A degree of attention, beyond that given to an ordinary passenger, should be bestowed on one known to be affected by a disability, by which the hazards of travel are increased.
    It is the duty of a street car driver to give passengers a reasonable opportunity to alight.
    Where he does not stop a sufficient timo, and starts before the passenger has stepped off1, it is negligence.
    Por injury sustained, not only actual, hut prospective damages should he allowed approximative! y, in the exercise of a sound discretion. In such a caso the liability of the Company is indubitable.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      W. B. Lancaster and J. McConnell for Plaintiff and Appellee:
    1. Cases illustrative of negligence in street car drivers, in not giving passengers a reasonably safe opportunity to «alight, by starting before the passenger has stepped down: Mrs. Howell vs. St. Charles Street Railroad Company, 22 An. 603; 61 2ST. Y. 621; 30 N. Y. 370, 373 ; 49 2ST. Y. 673 ; 49 N. Y. 671.
    2. If a passenger is known to he iu any manner affected by a disability, physical or otherwise, by which the hazards of travel are increased, a degree of attention should be bestowed to bis safety beyond that of an ordinary passenger. Thompson on Carriers of Passengers, pago 270, Section 5.

    3. The plaiutiff in an action for an injury to his person may recover not only the damage he has sustained up to the time of bringing the suit, but also all the prospective damages which the evidence renders it reasonably certain must necessarily result from fcho injury. Thompson on Carriers of Passengers, page 564, Sections 19 «and 565, Section 20.
    4. Ho exact computation can he made for damages due to the plaintiff; and in cases of this kind much discretion is left to the Judge or jnry in the assessment of damages. Mrs. Howell vs. St. Charles Street Railroad Company, 22 An. 603; Choppin vs. C. R. R Co., 17 An. 19 ¡ C. C. 1934, (1928) No. 3.

      Bmuglm, Buck <& Dinkelspiel for Defendant and Appellant:
    1. To recover damages from a railway company for injuries received, it must appear: that the injury was occasioned by the negligence of the company or its driver; that there was no want of caro, nor imprudence on the part of the plaintiff, by which the injury was in any manner brought upon her. 11 An. 294; 9 An. 441; 20 An. 462; 30 An 15.
    2. If the plaintiff contribute to the disaster she cannot recover, though the Company he also «at fault. 17 L. 361; 32 An. 615; 33 An. 154; 30 An. 15.
    3. If both parties are id fault neither can recover damage from the other. 18 L. 339; 3 An. 48, 441; 6 An. 490 j 11 An. 292; 23 An. 462; 27 An. 53 * 5 Otto, 700.
    4. A person who is old and infirm is guilty of culpable negligence in taking risks which might very properly be «assumed by a young, healthy and vigorous person. Sherman and Redfield on Negligence, 630, 648.
    5. The Company is not liable for injuries received by a person alighting from the car before it has stopped. 22 Pa. St. 147; 56 N. Y. 302; 63 S. Y. 556; 86 111. 467; 106 Ates. 463.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff sues to recover $15,000 for bodily-injuries sustained through the alleged carelessness of the driver of a street car in which she was a passenger and belonging to the defendant Company.

The defense is a general denial and contributory negligence.

The case was tried by a jury who rendered a verdict for $5,000. From a judgment in accordance, the defendant has appealed.

The plaintiff was a woman, sixty odd years old, and weighing 200 pounds, when the accident occurred. She was travelling as a passenger at the time, in broad daylight, on a car belonging to the Company, driven by a man in its employ for the special purpose. The car was progressing up Magazine street and was about, crossing Jackson street, when she gave the usual signal to stop. The car actually stopped. Two colored women came in when the plaintiff was about to get out. After they had entered the car plaintiff moved on to get out of it. She placed a foot on the step, turned arouud aud grasped the staucheon or handle. She was about to alight when the driver turned the brake off aud the car started suddenly. She then cried to the driver to hold on, but he kept on, some fifty feet, until forcibly yielding to the momentum of her bulky, massive and un wieldly person, or body, she was shaken off by the jolting of the vehicle, aud losing her balance, was thrown prostrate on the square block pavement of the street, nearly twenty yards above the intersection with Jackson street.

She was then picked up and assisted to a doctor’s office and after-wards removed to her own residence, where she received attention. The injury sustained on the occasion resulted, from a straining of the arm and from the bruises of her body, in a progressive paralysis which must shorten her life, terminating with complete paralysis. The course of the disease is declared to be seirrhosis, or a degeneration of the spinal cord. It creeps until it affects the lower portion of the brain. When that takes place it ends in death. The physicians of the plaintiff were beard. They say, the one, that he doubts very mncli whether she can live three or four years; the other, that he does not think that she will live two years.

We attach no importance to the fact that the suit was once tiled by a Judge alone, who rendered judgment for the defendant, as on the second trial, the case was decided on evidence which bad not been previously produced. On a motion for a new trial, based on newly discovered evidence and determined favorably by a different Judge, the first judgment was set aside and the matter submitted to a jury, who returned, as stated, for plaintiff.

The facts of the case, as found by us, are established by four disinterested eye witnesses, besides the plaintiff and exclusive of the two physicians.

Their testimony is apparently contradicted by the two witnesses heard for the defense, who had testified on the first trial, before the Judge who passed upon the case alone. Those witnesses are the car driver' and another of the same calling. The testimony then heard and offered to impeach, materially conflicts with that given by them before the jury. It is probable that the jury, if they believed those witnesses, did not consider any less than we do, that testimony of sufficient weight to impugn, in the least, that adduced by the four witnesses on behalf of plaintiff.

We do not consider that the defense of contributory negligence has been established.

The driver was grossly at fault in not doing that which he should and could have done. He should have waited till the plaintiff had alighted before starting anew. The plaintiff could not be required or expected to have acted differently from what she had. It was physically impossible for her to have counteracted the headway under which her body had been impelled.

While the doctrines of law invoked by the defendant are of undoubted soundness, it cannot be questioned that the principles relied upon by the plaintiff are equally so.

In a case almost identical, which occurred in this State, reported in 22 An. 603, it appeared that while the plaintiff was getting out and was standing with one foot in the ear and the other on the step, the driver let go his brake and started suddeuly and rapidly forward, in such a way as to fling her down on the pavement. The jury returned a verdict of $6,000, and both the lower and appellate courts, applying the law, confirmed it.

In the case of Mary Poulin, 61 N. Y. 621, presenting an analagous state of facts, the Court held, that it is the duty of a conductor of a street car to give passengers a reasonable and safe opportunity to alight. He must stop the car for a reasonable time to enable the passenger to do so, aud if he starts before the passenger has stepped down or had reasonable time for that purpose, it is negligence. See 49 N. Y. 671, 673; 30 N. Y. 370; 38 N. Y. 131; 75 Pa. 83; also, Thompson’s Carriers of Passengers, p. 443, Sec. 3.

If a passenger is known to be in any manner affected by a disability by which the hazards of travel are increased, a degree of attention should be bestowed to his safety beyond that of an ordinary passenger. 36 N. Y. 39; Thompson on Carriers, p. 270, Sec. 5.

In the computation of damages in cases like the present one, it is impossible to arrive at an exact result. Not only the damages sustained up to the institution of the suit, but also those which the evidence shows to be reasonably certain, should be taken into consideration. Both actual and. prospective damages should be allowed, approximately, in the exercise of a sound discretion. Thompson on Carriers, p. 564, Sec. 19; p. 565, Sec. 20; 22 An. 603; 34 An. 177; 23 An. 180; 17 An.19; 23 An. 180; C. C. 1928, No. 3.

The plaintiff was a midwife by avocation, had an extended lucrative practice. She is now permanently disabled and deprived of the power and advantages of locomotion and of the earnings of her calling. She remains subjected to constant, protracted physical suffering and moral anguish, necessitating regular attendance and treatment. Her life is saddened with the gloomy ghost of death staring her in the face, steadily and mercilessly advancing upon her.

In the Howell and Peniston cases, 22 An. and 34 An., six thousand dollars were allowed.

We do not feel authorized to disturb the verdict rendered in this case.

The liability of the defendant Company, under the circumstances, is indubitable.

Judgment affirmed.


author: Todd. J. Fenner, J.

text:
    No. 8472.
    C. Chaffe, Jr., Syndic, vs. Mrs. C. Forcheimer et al.
    Where a wife has separate property, of which she desires to have her right to the administration recognized free from the interference of her husband therein, on account of the disordered condition of her husband’s affairs, these facts entitle her to a judgment of separation of property, and such judgment, if she has possession of the property, would not require execution.
    If, in addition thereto, she claims and recovers a monied judgment against her husband, the failure to execute the latter would be a cause of nullity of said monied judgment, but not of the judgment of separation itself and consequent dissolution of the community, to which she was entitled independently of her monied claim.
    APPEAL from the Tenth District Court, Parish of Red River, Logan, J.

      M. S. Jones for Plaintiff and Appellant.

      L. JB. Watkins for Defendants and Appellees.
   The opinion of the Court was delivered by

Todd. J.

On the rehearing by

Fenner, J.


author: Fenner, J. Poché, J.

text:
    No. 8594.
    Henry Bier vs. Gautier & Godchaux. Charles Turpin, Garnishee.
    ■When property of a judgment debtor exceeding §1,000 in value is seized in the hands of a garnishee, who asserts a right of pledge thereon for an amount exceeding §1,000, the matter in dispute between the seizing creditor and the garnishee, in proceedings under the garnishment, is appealable, although the amount of the seizing creditor’s judgment may be less than §1,000.
    In a garnishment process the judgment of the court ordering the surrender to the sheriff of the property held by the pledgee, and the sale of such property in satisfaction of the creditor’s judgment, provided that no adjudication thereof be made unless the amount bid be sufficient to pay the garnishee’s claim, is correct in law. In such cases the creditor cannot insist on an absolute sale, unless the amount of the bid would be sufficient to realize something for him, after satisfying the garnishee's privileged claim.
    To successfully traverse the garnishee’s answers the plaintiff must show that they are false, by positive written proof, or by the oath of two witnesses worthy of belief. C. P. Art. 264.
    APPEAL from the Civil District Latearas, J. Court for the Parish of Orleans.

      A. O. Lewis and T. M. Gill for Plaintiff and Appellant.

      Jos. J?. Hornor and F. W. Laker for the Garnishee and Appellee.
   On Motion to Dismiss.

The opinion of the Court was delivered by

Fenner, J.

In execution of a judgment of plaintiff against defendants for $418, garnishment process, was served upon Turpin, who answered, denying indebtedness to defendants, but stating that he held a share of stock of the New Orleans Cotton Exchange, belonging to defendants but pledged to him to secure a note of $4,500.

On further proceedings between plaintiff and garnishee, a judgment was rendered recognizing the latter’s right of pledge, but ordering him to turn over the property to the sheriff to be sold, provided the bid be sufficient to cover the amount for which it is pledged.

From this judgment plaintiff appealed, and the garnishee moves to dismiss on the ground that the amount in dispute is less than one thousand dollars.

The share of stock is shown to exceed $1,000 in value.

The matter in dispute between the plaintiff and garnishee was the existence, validity and effect of the latter’s pledge for $4,500, on property worth more than $1,000.

The judgment might have set aside or denied his pledge and ordered the property to be sold unconditionally for the satisfaction of plaintiffs’ judgment, in which case the garnishee’s right to appeal would hardly have been questioned. A controversy appealable as to one party is appealable as to both.

The case falls within the principle of the following authorities: Wood vs. Rocchi, 32 An. 1120; Meyer vs. Logan, 33 An. 1055; Devonshire vs. Gauthreaux, N. R., O. B. 52, p. 428.

The motion to dismiss is denied.

On the Merits.

The opinion of the Court was delivered by

Poché, J.

In execution of a judgment which he held against the defendants, plaintiff issued garnishment process on Dr. Charles Turpin, who answered that, as a creditor of one of the defendants, Jules L. Gautier, he held in pledge one share of the capital stock of the New Orleans Cotton Exchange, as a security for a note of $4,500 due by said Gautier, and held by him. Under a rule taken by plaintiff to traverse the garnishee’s answers, the court ordered the sale by the sheriff of the certificate, subject to the garnishee’s right of pledge to the stock, with instructions to make no adjudication unless the amount of the bid be sufficient to pay the sum of $4,500 due to the garnishee.

Plaintiff, on appeal, complains that the District Judge erred in instructing the sheriff to make no adjudication in default of a bid equal in amount at least to the garnishee’s privilege claim, and he urges that the judgment should have ordered the unqualified surrender and unconditional sale of the stock, subject to the garnishee’s privilege.

It strikes us that this argument involves the proxiosition of a distinction without a difference.

If the price bid for the pledged property is not sufficient in amount to pay and satisfy the pledgee’s claim, the seizing creditor certainly realizes nothing by Ms execution, and hence his rights are as well protected by an instruction to make no adjudication, in case of an insufficient bid:

The requirements of the law are satisfied and the rights of the seizing creditor are amply protected by a judgment ordering the surrender to the sheriff of the pledged property, which thus becomes subject as the common pledge of the creditors, to their action, without harrassing the pledgee or impairing any of Ms rights under the pledge. Horner vs. Dennis, 34 An. 389.

To require more of the pledgee would impose upon him sacrifices and a probable loss, entirely unprofitable to the seizing creditor.

The evidence introduced by plaintiff to traverse the. garnishee’s answer, not only fails to prove the same to be false, but substantially 'Corroborates them. That evidence consisted mainly of the testimony of the garnishee himself, and it satisfies us of the unquestionable truth of his answers as garnishee and of his good faith as pledgee and as creditor. Hence, we conclude, that there is no error in the judgment appealed from.

We note the garnishee’s prayer for damages for a frivolous appeal^ but we do not feel authorized to allow them in this proceeding. He has his right of action for such damages, for the alleged depreciation of the pledged stock, as he may suffer through aud by means of this litigation.

Judgment affirmed.


author: Manning, J.

text:
    No. 8298.
    The State of Louisiana vs. Shad Johnson.
    The presence of the accused in court when the verdict of the jury is received, on a trial for a felony, cannot he dispensed with, and the record must show that fact affirmatively.
    APPEAL from the Sixteenth District Court, Parish of East Feliciana. Kerncm, J.

      J. 0. Egan, Attorney General, for the State, Appellee :

      T. J. Kernan and T. E. Egons for Defendant and Appellant.
   The opinion of the Court was delivered by

Manning, J.

From a conviction of larceny and judgment tbereon the defendant appealed.

On filing tbe record here the Attorney-General applied for and obtained a writ of certiorari to the clerk of the lower court to have the minutes of that court corrected, and for a transcript of the corrected minutes to he forwarded here. The correction was expected to shew that the prisoner was present in court when the verdict of the jury was rendered, the record in its then condition failing to shew the fact.

The clerk’s return certifies that he has carefully examined all the papers in the case, and especially the minutes of the court of the day when the jury rendered the verdict, and that he finds nothing that is not already contained in the transcript.

There is no mention in that of the prisoner’s presence in court when the verdict was returned. This cannot be dispensed with in a trial for a felony. State vs. Ford, 30 Ann. 311.

Therefore, it is ordered and decreed that the judgment of the lower court is avoided and reversed, the verdict of the jury is set aside, and the case is remanded for a new trial of the accused.


author: Poché, J.

text:
    No. 7583.
    Mrs. M. E. Ferrière et al. vs. The City of New Orleans.
    Iu a suit to recover title or ownership to a batture or accretion formed in front of lands situated on the Mississippi river, the plaintiff must recover on the strength of his own title and not on the weakness of his adversary’s.
    In sales of lots in the City of Hew Orleans fronting on the levee or liver, if there exists a batture outside of the levee, susceptible of private ownership, the presumption is that the riparian owner and vendor does not convey his rights of alluvion, accretion or batture, un'esstke same be specially mentioned and described as being conveyed in the act of sale; and the heirs of a party holding the lot under a chain of titles, originating from such vendor, can lay no claim of ownership to such batture.
    APPEAL from the Third District Court for the Parish of Orleans. Ileusha w, J udge ad hoc.

      J. Q. A. Fellows for Plaintiffs aud Appellants.

      O. F. Buck, City Attorney, and Wynne Boyers for Defendant and Appellee.
   The opinion of the Court was delivered by

Poché, J.

Plaintiffs seek to be recognized as owners of the batture or alluvial accretion in front of a lot of ground, 60 feet front, on Tchoupitoulas street, between Poydras and Lafayette streets, in this City, and running to the Mississippi river; and they claim a moneyed judgment of thirty thousand dollars against the City, as compensation for portions of said batture used by the City in laying out streets.

They claim title under their grandfather, Gabriel Callier, who is alleged to have been the owner, at the time of his death, of said lot of ground and of the rights of batture in front of the same, alleging that in the settlement of his succession, the original lot was sold, but not the rights of batture, of which his succession and heirs have never been legally divested. They have taken this appeal from a judgment in favor of the City.

The salient point of the City’s mimerous defenses is, that Gabriel Callier never acquired or owned the batture or accretion which had gradually formed in front of liis lot on Tchodpitoulas street, and that in the settlement of his succession, the sale of his lot fronting and ending on the levee and not on the river, embraced all the rights of property which he had in the premises, and that therefore plaintiffs, as his heirs, can have no title to the extensive and very valuable batture which has formed in front of the said Callier’s lot.

The vexed question of title to the alluvial deposits of the Mississippi river in front of the City of New Orleans has been a fruitful source of litigation before the courts of this State, and has been the subject of most exhaustive researches, and of most learned decisions at the hands of our distinguished predecessors in this Court.

From the jurisprudence which they have so ably established on this important subject, we have culled two rules which will guide us in the investigation of the present controversy.

1. In batture suits, as in all petitory actions, plaintiff must recover on the strength of his own title and not on the weakness of his adversary’s. 7 N. S. 624; 13 An. 109.

2. That in all sales of lots in the City of New Orleans, fronting on the levee, if there exists a batture outside of the levee susceptible of private ownership, the presumption is that the riparian owner and vendor does not convey his rights of alluvion, accretion or batture, unless the same be specially mentioned and described as being conveyed in the act of sale.

Under the latter rule, if Gabriel Callier owned the batture in question at the time of his death, and if said batture was susceptible of private ownership, the rights of his succession were not divested by the sale of his succession property, and his heirs are yet the lawful owners of it.

On the other hand, if Callier’s vendors, and if their vendors in purchasing from the original owners, Bertrand Gravier and wife, purchased the lot in question, having a batture in front susceptible of private ownership, without an express intention on the part of the latter to convey their rights to such alluvion or accretion, it is equally clear that they acquired no title to the batture, and that therefore no such rights were or could be transferred to Callier.

From the record the following is Callier’s chain of title:

In January, 1807, he purchased from the Arnmnds. In 1806 the Armands purchased from Dupain. In December, 1795, Dupain purchased from Nicolas. In March, 1795, Nicolas bought of Magnon. In September, 1789, Magnon purchased from Legendre, and in March, 1789, Legendre bought of Gravier and wife.

In neither of those sales is there any mention or description of the rights of batture, alluvion or accretion.

The next step of our investigation is to ascertain whether, in 1789, when Bertrand Gravier and wife sold the lot in question to Legendre, there was in front of it, outside of the levee, an alluvial accretion or batture susceptible of private ownership.

On this point the evidence leaves no doubt, and shows conclusively that at that time such a batture did exist, and has continued since to increase, and it follows therefore that this batture remained the property of Gravier, the vendor, unless it appears from the act of sale to Legendre that the vendor intended to include the rights of accretion, either present or future, in the sale of the riparian lot.

As stated above, the sal§ contains no mention whatever of rights of accretion, and the intention to convey such rights must be drawn, if it existed, by inference from some other language in the act. The property is sold together with all the “ rights of ingress and egress, usages, customs and servitudes pertaining thereto,” and is described as “frente a la leve de esto Rio? referring to the Mississippi river.

Under our well settled jurisprudence such a sale cannot, under any possible construction, be held to include the rights to alluvial accretions or a batture, then existing and susceptible of private ownership.

Our courts have gone so far as to hold that the sale of a tract, forming part of a larger tract owned by the vendor, and described as fronting on the river did not convey the rights of batture already formed, if anything intervened worthy of being considered a fit subject for exclusive ownership. Cambre vs. Kohn, 8 N. S. 572; 11 L. 140.

A fortiori will such a construction prevail when the lot sold is described as fronting on the levee on said river.

Our conclusion is, that in the sale of March, 1789, Gravier and wife did not intend to and, in fact, did not convey to their purchaser, Legendre, their rights to the batture which had already formed to a sufficient height to be susceptible of private ownership, in front of the lot sold to Legendre, and that the ownership of said batture was retained by the vendors.

Such being the case, the purchaser from Legendre, from Magnon, from Nicolas, from Dupain and from Armand, did not, and could not acquire any rights to said batture, for the very simple reason that no one can sell or convey that which he does not own.

We therefore hold, that Callier having never acquired the ownership of the batture in question, he could transmit no rights thereto to Ms heirs, and that plaintiffs have failed to make out their case. This was the conclusion reached by the Judge ad hoe, who tried the case below, and who demonstrates the fallacy of plaintiffs’ pretensions in an able opinion, which we fully endorse.

Entertaining these views, we pretermit all the other defenses urged by the City.

The judgment appealed from is, therefore, affirmed with costs

Rehearing refused.

Levy, J., absent.


text:
    No. 8724.
    The State of Louisiana ex rel. J. S. Ikerd vs. The Judge of the Eighth District Court, Parish of East Carroll.
    A mandamus lies to compel tbe granting of an appeal from a .judgment dismissing part of a petition and part of tlie prayer thereof.
    It is no defense to an application for such remedy, that the case, for the remaining part, continues pending before the court, or that the judgment is interlocutory and causes no irreparable injury.
    Such judgment is a final judgment, requiring, as in faot it received it, signature by the Judge,
    The fact that the plaintiff continued the prosecution of the remaining part of the case and. that ho did not, upon the refusal of the appeal, apply for a mandamus, oannot be considered as an acquiescence in the judgment, or an abandonment of his right of appeal.
    ilPPLICATION for a Mandamus.

      W. G. Wyly for tlie Relator.

      JS. J. Delony, the Judge, Respondent, in propria persona.

   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus.

The relator avers that he has brought a suit, on certain grounds, against three defendants, who excepted thereto, for several reasons; that the District .Judge, after hearing, sustained the exceptions to a certain extent and dismissed part of the petition and prayer. He complains that he applied for a devolutive appeal, which was refused him without cause. He prays that a mandamus issue to compel the granting of the appeal thus declined.

The District Judge returns that he has twice refused to grant the appeal, which was from an interlocutory judgment, on the 23d of December, 1881, and on the 30th November, 1882. He urges that the mandamus should not be made peremptory:

1. Because the relator has acquiesced in the judgment, in failing to prosecute his first application for an appeal; in consenting to proceed with the case and fix the same for trial j in applying for trial hy jury ; in answering and complying with orders pending the proceedings, etc.

2. Because the judgment on the exceptions was an interlocutory decree, and not such as would work an irreparable injury to plaintiff; and because to grant the same before the trial of the whole case would he to send the same to the appellate court in fragments, a proceeding not favored by law.

Certified copies of the proceedings referred to in the petition and return are before us.

We propose to consider the grounds of defenses, reversing the order in which they are set forth.

The judgment sustaining the exceptions and dismissing the petition and prayer is not an interlocutory order. It is a judgment which has a character of finality, as it severs and dismisses from the action part of the demand. It was so considered by the District Judge, who has, after rendition, read and signed it in open court. .

Whether, {\nder that judgment, the plaintiff in the suit he debarred from bringing or not a new proceeding, it is unnecessary to determine. It is enough that the judgment be a final judgment, to entitle the relator to an appeal from it. By not doing so the relator might sustain some injury eventually irreparable.

It is no objection to the granting of the appeal, that the case remains pending, on certain grounds, before the court. It may be ultimately unfortunate, that tlie judgment of dismissal be reversed and that it may so possibly cause a. reversal of the judgment eventually to be rendered on tlie ease as it now stands in court; but with that neither the relator, nor the court, has any concern. Injury, if any is thereby occasioned, will have to he sustained by the defendants, who excepted in the manner they did and who obtained tlie judgment complained of.

They might have avoided sucli judgment, by either asking and obtaining that their exceptions be tried at the same time as the merits, or by objecting to the introduction of evidence at the trial. They have elected their proceeding and must abide the consequence of that choice.

The theory that a judgment is an entirety and indivisible can receive no application where distinct judgments are rendered at different times and on different subjects. In a proper ease an appeal lies from each judgment so rendered.

It is settled that an appeal lies from a judgment of dismissal or non-suit. 2 M. 136; 7 M. 520; 3 N. S. 265; 16 L. 515.

We have examined the proceedings to which the District Judge refers to establish the acquiescence of the relator in the judgment sought to be appealed from, and fail to discover therein any act justifying that defense.

Tlie acquiescence to which the law refers is a voluntary, not an involuntary one. Whatever the plaintiff did in the case, after the judgment of dismissal was rendered, was a matter of necessity for the protection of liis rights in the prosecution of the same as they stood after the judgment of dismissal bad been rendered and signed. Had lié brought a new suit, on the grounds and for the purposes eliminated from the petition and prayer, after the dismissal, a different feature would he presented.

From the fact'that he did not apply for a mandamus from this Court 'immediately apon the first refusal, it cannot be inferred that he abandoned his right to do so. He may have had good reasons for delaying such an application.

It appears, however, that he subsequently again asked the Judge to grant the appeal previously sought, and that he was met with another refusal. This circumstance repels the inference.

We are unable to agree with the District Judge and ^onsider that the relator is entitled to the relief which he seeks.

It is, therefore, ordered and decreed that the alternative mandamus herein issued be made peremptory, and that the District Judge do accordingly grant the relator the appeal prayed for and declined.


text:
    No. 8629.
    The State of Louisiana ex rel. Louis H. Marrero vs. The Judge of the Twenty-Sixth District Court, Parish of Jefferson.
    A judgment rendered by a competent court, in an action for the nullity of a previous judg* ment rendered by the same court, is res adjudicate oT the grounds alleged in nullity, and will be a bar to an application by the same party to a writ of certiorari in the Supreme Court, with a view to annul the same judgment on the same alleged grounds of error.
    ilPPLICATION for a Certiorari.

      L. Marrero for the Relator.

      Alfred Shew and M. A. Billings for the Respondent.
   The opinion of the Court was delivered by

Poché, J.

Proceeding under the writ of certiorari, relator charges several irregularities in the proceedings, which culminated in a judgment for one hundred and sixty 93-100 dollars against him in the defendant court.

In his return the respondent Judge urges the regularity of the proceedings had before him and the legality of the judgment sought to be annulled.

He further avers, that after the rendition of said judgment, relator instituted in his court a suit for the nullity of said judgment, resting his action on the identical grounds set forth by him in the present proceeding; in which suit judgment was rendered against him, and that the latter judgment having become final, has the force of res adjudicates on the issues presented on his relation before this Court.

Under our rules of practice, relator had the option to demand the nullity of tlie judgment rendered against him, and which was unappealable, by invoking the remedy by certiorari before this Court, or by instituting his action iu nullity before the court which had rendered the judgment.

He chose to adopt the latter mode for obtaining redress, and his effort has resulted in defeat. Hence, he now seeks the same redress before this Court.

The record of his suit iu nullity is before us, and shows that all proceedings therein are regular aud, in fact, are not even referred to or complained of by him.

The irregularities therein set forth as the grounds of nullity of the judgment assailed by him are identically the same which are now pressed before us.

The court was competent to pass upon and to determine the issues presented in his suit for nullity, and its judgment on such issues is binding on the parties, until such judgment is avoided or annulled under some of the modes pointed out by law. The judgment may be erroneous and it may have the practical effect, of giving vitality to a judgment null and void for irregularities patent on the face of the record ; but as it 'appears regular in form, we are powerless to examine into its intrinsic merits, or to avoid and avert its binding effect on the relator herein aud plaintiff therein, who invoked the aid of the tribunal which rendered it.

It is a final judgment rendered by a competent court, and it must be held to have adjudicated and fully disposed of the very matters which are the subject matter of the present proceeding.

Our conclusion is, that relator is not entitled to the relief which he asks of this Court.

It is, therefore, ordered, adjudged and decreed, that our preliminary restraining order issued herein be set aside, and that the writ of certiorari herein prayed for be refused at relator’s costs.


author: Todd, J.

text:
    No. 8725.
    The State of Louisiana ex rel. Jos. H. Muse, Administrator, vs. M. A. Strickland, Judge ad hoc.
    Where an administrator charges himself with §1500 in his account, as the result of a compromise of a twelve months’ bond in favor of the succession and prays that such compromise may be approved by the court, such demand gives this Court jurisdiction of an appeal from a judgment rendered on an opposition to the account, although the cash fund proposed to be distributed by the account and the amount of the inventory of the succession is less than §1000.
    Application for a Mandamus.

      G. W. H. Marr for the Relator.
    The Respondent in propria persona.

   Th e opinion of the Court was delivered by

Todd, J.

The relator, administrator of the succession of Peter 0. Quinn, deceased, alleges that he filed an annual account of his administration of said succession, which was opposed. That by the judgment rendered thereon by the respondent, who was appointed Judge ad hoe in said case upon the recusation of the District Judge, the succession was aggrieved. That thereupon he applied for an appeal to this Court, which was refused. That the amount of the succession funds to be distributed in said account exceeds one thousand dollars, exclusive of interest, and he therefore asks that the said Judge be compelled by mandamus to grant said appeal.

The respondent Judge for answer says, that he refused the appeal because the case was not appealable to this Court ratione materue, .which he proceeds to support by a statement of the amount of the succession funds to be distributed, according to his judgment and the amount of the inventory, etc.

Leaving this statement out of view, which admits of a controversy, we find one feature in the case which, of itself, would invest this Court with jurisdiction of the appeal. It is as follows: The main asset of the succession, according to the account, is a twelve months’ bond for $1625, which the administrator says is collectible and part of which has been paid. This bond, which had been in litigation, the administrator reports that he had compromised with the surety thereon at $1500, payable in three equal instalments, and charges himself with this sum.

In his petition accompanying his account the administrator asks that this compromise may be recognized and approved by the court. Whether the petitioner was entitled to have his prayer in this respect granted is not the question now, but it certainly constituted a demand which brought the case within the jurisdictional limits of this Court and entitled him to the appeal applied for.

It is, therefore, ordered, adjudged and decreed, that the mandamus be made peremptory at the cost of the respondent.


text:
    No. 8733.
    The State of Louisiana ex rel. L. Page, President, etc., vs. F. A. Monroe, Judge, etc.
    A mandamus cannot lie to compel a District Judge to grant an appeal to tlie Court from a judgment dismissing a case, as 1o one of the defendants, where an exception is filed to the jurisdiction, and the petition in the suit shows that the amount claimed is less than one hundred dollars.
    Such dismissal does not extinguish the corporation, plaintiff in the case. The suit continues to he pending as to the other defendant.
    APPLICATION for a Mandamus.

      J. S. Hymns for the Relator.
    The Respondent in propria persona.

   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus to compel the District Judge to grant an appeal from a final judgment dismissing a suit brought by the relator as to one of the defendants therein.

The petition averred against that defendant (Rougé) that he had in his possession, as depositary of the society, of which the relator claims tó be president, a cash box containing $67.

The lower court sustained an exception to its jurisdiction. Thereupon the plaintiff applied for an appeal, which was refused.

The construction placed by relator upon this judgment of dismissal is that it involves the status or existence of the society, the value of which is alleged to exceed $1,000, and dismisses the whole case.

We do not view the matter in the same light.

It was apparent from the recitals of the petition that the amount in dispute was below the lower limit of the jurisdiction of the District Court. The judgment dismissing the suit for want of jurisdiction ratione materice, is fully sustained by the record and by the law. The case remains pending as to the other defendant.

If the relator be the president and head of the corporation, the existence of which he avers, there being no law constraining the institution of suits by judicial persons exclusively before a certain court, he should bring his action before a city court, which would have juris-, diction of the sum claimed, as it falls below the upper limit of the competence of such courts.

• The application for a mandamus is refused with costs.


text:
    No. 8734.
    The State of Louisiana ex rel. The Orleans Railroad Company vs. The Judge of the Civil District Court for the Parish of Orleans.
    A mandamus lies to compel a District Judge to sign de novo a final judgment improperly signed by bim. An appeal is not the only mode to test the validity of such signature. Such judgments do not become final unless upon being signed in the manner and form prescribed by law.
    ■/APPLICATION for a Mandamus.

      Olías. Bouque for the Relator.

      F. W. Balter and A. J. Murphy for the Respondent.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus to compel the District Judge to sign a final judgment.

In verification of the return that the judgment is signed, the original of what is claimed to he the judgment signed is transmitted to this Court with the answer.

It is a document, the first part of which has the form of a final judgment rendered in the case, concluding with the words: “ Two thousand dollars and costs of sujt,” under which the following are written : “ Judgment rendered February 23d, 1882.” Next to the line on which this is found and on the following line, the word remittitur is alone written. It is followed by a motion, beginning on the next line, made by counsel for plaintiff in the caso, to be permitted to en ter a remittitur of one thousand dollars. This motion is followed by the words: Judgment signed April 10th, 1882. H. L. Lazarus, Judge.”

The whole (judgment and motion) is on the same sheet of paper.

It is urged that it is strange that nothing but a question of fact is involved and that the relator does not aver it to be otherwise than as recited by tlie respondent.

The question presented, in our view, is not only a question of fact whether a signature exists, but also a question of law whether that signature is the signature required by law to a final judgment. The question is, was the judgment legally signed?

No question purely of fact was at issue when this Court was .twice called upon to determine whether the signing of the “reasons” was the signing of the judgment. The question was a legal one, the fact of a judicial or official signature being admitted, whether that signature was the signature of the judgment. The Court held that the “reasons” do not form part of the judgment and that the signature of the “ reasons” is not the signature of the judgment. See the Davidson case, 23 An. 108; 10 An. 261, 640; the Saloy ease, 30 An. 63.

Neither was a pure question of .fact presented, when the Court was asked to compel by mandamus the re-signature of a judgment signed by a Judge during vacation. The Court held that a judgment then signed had not been legally signed and that the writ would lie to compel seasonable signature at the next term of court. Vide 26 An. 119, State ex rel. vs. Judge 5th District Court.

On the motion to dismiss made here in the case in which the judgment was rendered, we said that the judgment had not been signed as the law requires and the appeal was finally dismissed.

What was signed in this case is not the judgment but the motion for authority to enter the remittitur, which does not form pari of the judgment, particularly when the remittitur authorized was not entered and acted upon. Authority to do an act is not equivalent to the doing of the act. The former is the antea, the latter the postea. Had the date of the signature and the signature immediately followed the judgment and preceded the motion termed remittitur, it could have been well claimed that the judgment had been legally signed, however glaring the fact be that the District Judge never intended to render, or at least maintain a judgment for two thousand dollars; but the date and the signature were not thus placed. As already said, it has been held that the signing of the reasons is not the signing of the judgment. 23 An. 180; 30 An. 63.

It was also decided that the signing of the minutes is not the signing of the judgment. Vide Scott case, 24 An. 259; 17 L. 485; 4 R. 52.

It has likewise been determined, that although the signature of the Judge was affixed to the final judgment, it is not the signature which closes the door on the judgment, as to one of the parties, when the Judge had granted a new trial on general terms. 20 An. 555, Converse vs. Bloom.

It is not correct to say that where a judgment was improperly written and signed, the only method of correcting such error is by appeal. The brief language of the Court in 20 An. 558, invoked in support, must be considered as modified by the considerate subsequent action and ruling in 26 An. 119, already referred to, in which a Judge was compelled by mandamus to sign anew a judgment signed during vacation. It, therefore, follows, that the question is examinable and determinable, also, in a mandamus proceeding.

From the fact that the relator has, in the motion and bond of appeal and in a previous proceeding, alleged that the judgment was signed, it is not to be deduced that the validity and effect of such signature cannot be subsequently attacked. The admitted fact that the signature was given doos not preclude the charge that it was illegally given. 32 An. 962.

The relator has not admitted that the signature had been properly and legally affixed. Had this been done, a different question would be presented, in which the Court might have been called upon to consider whether an error of law can or not be invoked as the means of preventing a loss. The authority in 5 An. 18 has no bearing to a case like the present one.

Signatures given in such circumstances do not satisfy the requirements of Art. 546, C. P.

The Judge must make the judgment final by his signature thereto. Vide 17 L. 485; 4 R. 52.

It is no doubt true, as claimed by the defense, that “in giving judgment such conditions may be annexed as may be equitable and necessary as to protect the party cast against further prosecutions,” but we are at a loss to perceive how the principle invoked can receive application to the instant case, in which no condition whatever was annexed to the judgment which, the defendant says, “ was never altered or changed in any manner.”

Judgments rendered do not become final unless upon being signed in the manner and form prescribed by law.

The District-Judge was scrupulously right in submitting to this Court, directly, the question of the validity and legal effect of his signature to the judgment in question. The adjustment now made by this Court, on the issue herein-presented, will, no doubt, at least allay his conscience and justify him'in signing the judgment in the mode in which we think it should be done.

It is, therefore, ordered and decreed, that the alternative mandamus herein issued be made peremptory, and that the restraining order granted be made perpetual.


text:
    No. 6866.
    David Block vs. Myers & Levi et als.
    In a bankruptcy proceeding, under Section 5024, U. S. Revised .Statutes, an injunction was issued in equity without bond, but subsequently, in obedience to an order of the court, a bond was furnished by the complaining creditors, conditional that the obligors “shall well and truly pay to the defendant in injunction all such damages as lie may recover against them, in case it should be decided that said writ of injunction was wrongfully issued.” Held, tliat such bond substantially complied with the condition prescribed by the Judge’s order, requiring that a bond he given in favor of the defendant “ to save him harmless from the effects of the injunction issued in this cause,” and that said bond is valid in equity.
    Held, that such bond is actionable against the surety together with the principals, without preliminary suit against the principals, or proof that its condition had been broken.
    • Held, that such bond, given after injunction had issued, but ■shown to have, been required by the court after full investigation of ¡damages previously accrued, will cover past as well as future damages.
    In an action for damages for abuse of a conservatory writ, such as ■injunction, decided to have been wrongfully issued by the tribunal .whence it had emanated, the only question is the quantum of damages, and malice, is not of the essence, iu pleading or proof, of the recovery of actual damages.
    APPEAL from the Sixth District Court for the Parish of Orleans. Iiightor, J.

      Breaux & Hall for Plaintiff and Appellee.

      Kennard, Howe <& Brenliss for Defendants and Appellants.
   The opinion of the Court was delivered by

Poché, J.


text:
    No. 8152.
    The State of Louisiana ex rel. P. O. Fazende vs. The City or New Orleans.
    A mandamus cannot be granted where, if allowed, it would prove •unavailing.
    It does not lie against municipal authorities in existence in 1883, to place a sum on the City budget of 1879, when the revenues and receipts of that year, as therein stated, have been applied to the expenditures therein specified.
    The rights of the relator are secured by the registry of his judgment, under Act 5 of 1870, and the ruling in 33 An. 129.
    ‘The decision in the Southern Bank case, 31 An. 1, is no authority, having been reversed in all its parts, by the U. S. Supreme Court.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissoi, J.
    TP. S. Benedict for the Relator and Appellant.

      G. F. Buelc, City Attorney, and Wynne Rogers for Defendant and Appellee. ■ .
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a proceeding for a mandamus to compel the municipal authorities to place the sum, for which relator claims to he a judgment creditor of the City, on the budget of 1879.

From a judgment refusing the relief asked, the relator has appealed.

This suit was brought in February, 1879. The judgment complained of was rendered and signed in January, 1881. Two years have since elapsed.

The budget for 1879 had been adopted in December of the preceding year, when the action was instituted. It shows that a sum of $10,000 had been appropriated and set apart to be applied to the judgments against the City.

The revenues raised, or to be raised for 1879, to satisfy the liabilities figuring in the estimate of expenditures, have been applied to the purposes for which they were intended.

The plaintiff has registered his judgment under the provisions of Act 5 of 1870. There can be no doubt that, the principles enunciated in the Carondelet Canal Company case, 30 An. 129, upon which he rests his claim, are applicable to the issues presented, but we are at a loss to perceive how, after the ruling in the Samory case, 34 An. 469, we can grant him the specific relief which he asks.

If the remedy sought was granted, it would prove unavailing. High Ex. Rem. § 14.

We cannot see what relief the appellant can realize by invoking the decision in the Southern Bank case, 31 An. 1, which is no authority, having been reversed, in all its parts, by the United States Supreme Court. 105 U. S. p.

Judgment affirmed.