text:
    No. 661.
    City of Shreveport vs. Gregg & Ford.
    It is correctly contended on behalf of plaintiff that taxes are not debts in the ordinary sense of the word, but contributions required of the citizens for the support of the government, and without which it could not be supported, and they can not be seized, sold, or compensated.
    Thetrue principle is that taxes are contributions to be paid in money,unless special provision is made that they are to be paid otherwise. Such provision has not been shown in this ease. The fact that the city council of Shreveport passed special ordinances permitting certain parties to settle their taxes with claims or judgments against said city, does not confer such right on all the taxpayers.
    There is no evidence that the city of Shreveport had authorized taxes to be paid in evidences of debt against the city, and therefore the defendants are not entitled even to the right to pay any part of their taxes in city warrants, which they have not offei-ed to do.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      JD. JMJ. CalUhan, for plaintiff and appellee.

      T. Alexander and N. C. Blanchard, for defendants and appellants.
   Howell, J.

This is a suit for the taxes of 1874. Defendants pleaded in compensation, to the extent of the tax-bill, a judgment in their favor against the plaintiff, and by amended answer they alleged that the officers of the city have been in the habit of receiving from other taxpayers the larger part of the taxes of 1874 in city warrants, or evidences of city indebtedness, but have refused to credit on defendants’ judgment against the city any portion of the tax claimed, which is an unwarranted discrimination; and they specially pleaded in compensation against the portion of the tax sued for, which is payable in evidences of city indebtedness, so much of their judgment as is necessary to offset the same. Judgment was rendered in favor of the city for the amount of the tax-bills, with the privilege accorded by law, and reserving to defendants the right to pay a certain portion thereof in city warrants. The defendants appealed, and the plaintiff asks an amendment rejecting- the said reservation.

It is correctly contended on behalf of the plaintiff, that taxes are not debts in the ordinary sense of the word, but contributions required of the citizen for the support of the government, and without which it could not be supported, and they can not be seized, sold, or compensated. 7 An. 19é; 26 An. 694; Cooley on Taxation, 13. By the article 2210, R. C. C., a debt can not be compensated which has for its cause aliments declared not hable to seizure. Taxes due a municipal corporation have been declared not liable to seizure, and if they should be viewed as a debt they would not be compensated. But the true principle is that taxes are contributions to be paid in money, unless special provision is made that they are to be paid otherwise. Such provision has not been shown in this ease. .The fact that the city council of Shreveport passed special ordinances permitting certain parties to settle their taxes with claims or judgments against said city, does not confer such right on all the taxpayers. We find no evidence that the city of Shreveport has authorized taxes to be paid in evidences of debt against the city, and therefore the defendants are not entitled even to the right to pay any part of their taxes in city warrants, which they have not offered to do.

It is therefore ordered that the judgment appealed from be amended by striking therefrom the reservation of the right of defendants to pay §420 of said judgment in the warrants of the city of Shreveport, and as thus amended the judgment be affirmed with costs.


source: Caselaw Access Project

author: Ludeling-, C. J.

license: Public Domain

text:
    No. 644.
    John Chaffe, Brother & Son vs. Thornton, Edwards & Robinson.
    The petition alleges that the plaintiffs resided in the city of New Orleans, without saying in the State of Louisiana. If the judge a quo erred, it was in sustaining the exception on this point. The amendment was properly allowed instante)' and without service. Courts will not exact the performance of vain things. The service of the amended petition would have been a useless formality.
    The judgment condemning tho defendants in solido is correct. The note sued upon declares that “ we, or either of us, promise to pay,” etc.
    APPEAL from the Fourteenth Judicial District Court, parish of Oua-chita. Bay, J.

      Morrison & Farmer, for plaintiffs and appellees.

      Cobb & Gunby, for defendants and appellants.
   Ludeling-, C. J.

This is a suit on a promissory note secured by the vendor’s privilege and a mortgage, with a stipulation to pay attorney’s fees and costs.

The defendant filed an exception in the lower court, alleging that the plaintiff had not alleged his residence as the law required. The judge a quo sustained the exception, but allowed the amendment to be made instanter and without service of the amended petition. The petition alleged that the plaintiff resided in the city of New Orleans, without ■saying in the State of Louisiana. If the judge erred, it was in sustaining the exception. The amendment was properly allowed instanter and without service. Courts will not exact the performance of vain things. ‘The service of the amended petition would have been a useless formality.

On the merits, we think the judgment condemning the defendants in solido correct. The note declares that “we, or either of us, promise to pay,” etc.

The 'allowance of the attorney’s fee was proper in this case, but we think, instead of $206 65, the sum should be $166 66§, the amount claimed in the petition.

It is therefore ordered that the judgment of the lower court be amended by reducing the sum allowed as attorney’s fees from $206 65 to $166 66§ ; and that, as thus amended, the judgment be affirmed. The costs of appeal to be paid by the appellees.


author: Ludeling, C. J.

text:
    No. 628.
    D. C. Morgan vs. W. L. Richmond, Sheriff, et al.
    A few days after the bond, of which the ownership is in controversy, and which was executed in favor of Cox for property purchased at sheriff’s sale, Cox sold and transferred said bond to plaintiff by a written act, to the knowledge of the sheriff, who was a witness to it. The sheriff was the depositary of Cox, and when Cox transferred the bond and notified the sheriff thereof, said sheriff held the bond for plaintiff, the transferee, from whom he received instructions in regard to said bond. There was constructivo delivery, if not actual delivery, of the bond.
    APPEAL from the Fourteenth Judicial District Court, parish of More-house. Bay,J.

      B. C. Morgan, in propria persona.

      James Bussey, for plaintiff and appellant.

      Neioton & Hall, for defendant and appellee.
   Ludeling, C. J.

W. E. Riser, a judgment creditor of M. E. Cox, seized a twelve-months bond, as the property of Cox, and D. C. Morgan enjoined the sale, claiming to be the owner of the bond.

The only question in the case is the ownership of the bond. It appears from the record that W. E. Riser executed a twelve-months bond in favor of M. E. Cox for property purchased at sheriff’s sale; that a few days after the bond was executed Cox sold and transferred said bond to Morgan by a-written act, which was proved up by the sheriff, Bichmond, a witness to the transfer; that the bond was in the custody of the sheriff, whose costs were unpaid, and were included in the amount of the bond; that Morgan directed the sheriff to keep the bond, as he had costs due him in the case, till he should have a settlement of costs with him. The price fixed was four hundred and fifty dollars. Subsequent to this transfer, Biser, the maker of the bond, and the seizing creditor in this suit, called on Morgan and offered to buy the bond from, him.

It is contended that there was no sale, because there was no price in money fixed, and that there was no delivery of the bond to Morgan. The price was fixed. It is four hundred and fifty dollars. Because a part of the price was a fee for professional services does not alter the fact that a price in money was fixed. And the same may be said of the balance of the price, which Morgan was to retain as a guarantee against loss by going on Cox’s bail bond.

Bichmond, the sheriff, was the depositary of Cox, and when Cox transferred the bond, and notified the sheriff thereof, he held the bond for Morgan, from whom he received instructions in regard to said bond. There was constructive delivery, if not actual delivery, of the bond. C. C. 2247.

It is therefore ordered and adjudged that the judgment of the lower court be avoided, and that there be judgment in favor of the plaintiff, decreeing him to be the owner of said bond, and that the injunction be perpetuated with costs in both courts.


author: MORGAN, J.

text:
    No. 651.
    E. L. Strother and Husband vs. George B. Hamlet, Sheriff, et al.
    It is apparent that the obligations sued on were obligations of the community, of which B. C. Strother was the master, and that the debt which arose therefrom was a community debt. The judgment should not, therefore, have been rendered against the wife individually, and she had no powor to confess a judgment on a debt due by the community. If judgment was improperly rendered against her, and this court thinks it was, then the sheriff was not authorized to seize her property in order to satisfy it, and the injunction properly issued.
    APPEAL from the Fourteenth Judicial District Court, parish of Oua-chita. Bay, J. Jury trial.

      Cobb & Gunby, for plaintiff and appellant.

      B. W. & B. Bicharclson and Morrison & Farmer, for defendants and appellees.
   MORGAN, J.

Miltenberger & Co. and J. W. Murrell obtained judgment against Mrs. E. W. Warfield and Mrs. E. L. Strother, in solido.

Execution has issued against the property of- Mrs. Warfield, who enjoined the sale thereof. The execution issued against Mrs. E. L. Strother, and her property was seized. She enjoins the sale on various grounds.

Defendants say that the matters which she sets up in support of her injunction should and could have been used as a defense to the suit out of which the execution issued, and that, as she did not do so, she is now precluded. But this point has been differently’decided .in several cases, particularly in the case of Daney and Wife vs. Cobb & Co., 23 An. 323. We must therefore consider whether the judgment the execution of which is enjoined was properly rendered. The judgment enjoined is a consent judgment, the confession of the plaintiff being authorized by her husband. The defendant (here the plaintiff) was not authorized by her husband or by the judge to defend the suit. Service of the petition was accepted by an attorney.

The suit was on two leases. The first lease is signed “R. C. Strother for Mrs. E. W. Warfield.” The second is signed Eliza W. Warfield, Eliza L. Strother, R. C. Strother. It is, it seems to us, apparent that the obligations sued on were obligations of the community, of which R. C. Stro-ther was the master, and that the debt which arose therefrom was a community debt. The judgment should not, therefore, have been rendered against her individually, and she had no power to confess a judgment on a debt due by the community. If the judgment was improperly rendered against her, and we think it was, then the sheriff was not authorized to seize her property in order to satisfy it, and the injunction properly issued.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that the injunction herein issued be reinstated and made perpetual, defendants to pay the costs.

Rehearing refused.


author: Ludeluto, C. J.

text:
    No. 561.
    Aby & Catchings vs. J. Harvey Brigham, Curator.
    Tliis suit is brought upon an account based upon the payment oí two drafts and the commissions for accepting the same; one of the drafts duo on the eighth of January, 1861, the other, December, I860. The defense is the prescription of throe and five years. The drawer resided in the State of Mississippi, and the plaintiffs resided in New Orleans.

      On the first of May, 1862, the authority of the united States ivas re-established over the city of New Orleans. The State of Mississippi continued within the Confederate lines until the close of the civil war, and during that time no suits between said parties could have been instituted.
    The Supreme Court of the united States has decided that this war commenced on the nineteenth of April, 1861, and terminated on the second of April, 1866; so that neither the prescription of three years, nor of five years,had accrued in March, 1867, when this suit was filed.
    APPEAL from the Fourteenth Judicial District Court, parish of More-house. Bay, J.

      D. G. Morgan and JE. Howard Mo Caleb, for plaintiffs and appellants.

      B. B. Todd and David Todd,Iot defendant and appellee;
   Ludeluto, C. J.

In 1860, the plaintiffs, who were commission merchants of George S. Clark, a resident of Mississippi, accepted for him two drafts and paid them, one for §3487 46, due on the eighth of January, 1861, the other for $235, due on the first of December, 1860.

Clark died in 1861, and after the war, J. H. Brigham was appointed curator of the succession of Clark in Morehouse parish, in which Clark owned property. About the first of March, 1867, suit was instituted for the sums thus advanced and commissions, and service of citation and petition was made on the same day.

The defense is, the prescription of three and five years. Clark, the drawer, resided in Mississippi, while the plaintiffs resided in New Orleans. On the first of May, 1862, the authority of the United States was re-established over the city of New Orleans, and the State of Mississippi continued within the Confederate lines till the close of the rebellion, and during that time no suits between said parties could have been instituted.

The Supreme Court of the United States has decided that the act of Congress of the eleventh of June, 1864, entitled “ an act in relation to the limitation of actions in certain cases,” was valid, and it suspended the course of prescription as between persons residing in the Federal and Confederate lines during the existence of the rebellion. 18 Wallace, 151; 11 Wallace, 244, 493, 508. The same tribunal has decided that the war commenced on the nineteenth of April, 1861, and terminated on the second of April, 1866. 12 Wallace, 700. So that neither the prescription of three years, nor of five years, had accrued in March, 1867, when this, suit was filed. '

It is therefore ordered that the judgment of the lower court be avoided and annulled, and that there be judgment in favor of plaintiffs and against the defendant, J. H. Brigham, curator of the estate of George S. Clark, for §3815 46, with legal interest from the twelfth of January, 1861* and for the further sum of $235, with legal interest from the first of December, 1860, and costs of both courts, to be paid in due course of administration.

Kehearing refused.


author: Lodelihg, C. J.

text:
    No. 673.
    Joseph P. Baird vs. L. M. Brown et al.
    The burden of proof is on the party who alleges a breach of duty, even though it < involves a negative.
    Plaintiff pleads that there was error in the subject-matter of the eontz'aet upon which the writ of seizure and sale issued against him, because the vendor sold the whole of the growing crops of the purchased plantation, when, in fact, the laborers on tho place were entitled to the half thereof, and because the plaintiff has actually been evicted of the half of said crops. The plea is untenable.
    The sale of the plantation was made in July; the growing crop formed part of tho realty and was transferred with the land; tho laborers, who were cultivating the land for a part of the crops, did not own the crops, but for their services they had a privileged lien on the crops, provided they had taken the precaution to have their claim recorded.
    These laborers continued to work on the place without any new contract with the vendee, and after tho crops were gathered the vendee settled with them according to their contract with the vendor. The pretext that he has been evicted of a part of the property purchased is absurd.
    APPEAL from the Seventeenth Judicial District Court, parish of Red River. J. F. Pierson, Judge ad 7ioc.

      Seales & Bulloch, for plaintiff and appellant.

      J. A. Seay and L. B. Watkins, for defendant and appellee.
   Lodelihg, C. J.

On the fifteenth of July, 1870, L. M. Brown, wife of E. S. Turner, sold a tract of land to the plaintiff for nine thousand dollars, for part of which he executed his note for five thousand dollars, secured by mortgage and vendor’s privilege. The sale was by authentic actj and embraced the growing crops. On the seventeenth of June, 1873, an order of seizure and sale was obtained to enforce the payment of tho note above described, and the plaintiff enjoined the writ, which subsequently issued, on several grounds, only two of which, however, seem to be insisted upon in this court, to wit: “That there has been no notice of the order of seizure and sale or of the seizure served upon your petitioner by any competent officer,” and that there is error in the subject matter of the contract or principal obligation upon which the said seizure and sale is based, in this, that the vendor sold the whole of the growing crops, whereas in fact the laborers on the place were entitled to the half thereof, and that petitioner has actually been evicted of the half of said crops, worth $1433.

The plaintiff contends that, as the reason for the injunction first above named involves a negative, the defendant should have shown that there was a notice of the order of seizure and sale served upon him. This is an error. One of the first principles of justice is not to presume that one has acted illegally, or has failed to do his duty. 9 M. 48; 13 La. 493; 2 An. 503; 13 An. 215; 3 An. 146. The burden of proof is on the party who alleges a breach of duty, even though it involves a negative. 3 N. £. 576; 1 Greenl., sections 78, 80; 6 An. 175.

The plaintiff has tailed to prove his allegation of want of service of -the notice of the order, if that was his ground for the injunction, as ■contended for in his brief; nor has he proved that the services of this notice and of other notices were not made “ by any competent officer,” which we think is the proper interpretation of the allegations of the petition.

The other ground for the injunction is equally untenable. The sale of the plantation was made in July; the growing crop formed part of the realty and was transferred with the land. The laborers who were cultivating the lands for a part of the crops did not own the crops, but for their services they had a privilege upon the crops, provided they had taken the precaution to have their claim recorded. These laborers continued to work on the place without any new contract with the vendee, and after the crops were gathered the vendee settled with them according to their contract with the vendor. The pretext that he has been evicted of a part of the property purchased by him is absurd.

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


author: Howell, J.

text:
    No. 612.
    E. H. Cole, Administrator, vs. Heirs of Sarah A. Reddick.
    'Tlie object of this action is to make Smith accept or renounce the succession of his daughter. It appears that before citation was served on him, he had caused an inventory to be taken and had qualified as administrator of the succession of his daughter. Hence the object of this suit was attained. The fact that, after inventory was taken, Smith attended to the store of the deceased before qualifying as administrator, did not affect the issues presented by plaintiff in his petition. The defendant had applied for appointment as administrator upon giving bond. Ho was appointed, and he has accepted the succession with benefit of inventory, whether or not he has done acts which make him individually liable for the debts of the succession, is a question for another proceeding.
    APPEAL from the Parish Court, parish of Catahoula. Marshall, J.

      Wade B. Young, for plaintiff and appellee.

      Boatner & Elam, for ■defendant and appellant.
   Howell, J.

Plaintiff, as creditor of the succession of Hansom Red-dick, alleges that Sarah A. Reddick accepted simply said succession and took possession thereof; that since her death no one has been appointed administrator of her estate; but James Smith has taken possession thereof and appropriated it to his own use without authority or giving security, and he fears the effects of the succession will be wasted and the succession he represents will lose its claim. He prays that said Smith and other heirs be cited to decide whether they will accept or renounce the succession of said S. A, Beddick, and if they accept, that they furnish security, and if they renounce, that an administrator be appointed to settle said succession. Smith alone was cited, and he answered that he had accepted the succession of his daughter, S. A. Beddick, with benefit of inventory, and had regularly qualified as administrator of her estate. Judgment was rendered, decreeing that said Smith had taken possession of said estate without authority, made himself liable for the debts,, and forfeited his right to accept with benefit of inventory; that his duties as administrator having ceased, he be required before taking possession as heir to give bond in favor of plaintiff, administrator, conditioned for the payment of plaintiff’s claim. From this judgment Smith appealed.

The judge erred. The object of this action was to make Smith accept,, or renounce. It appears that, before citation was served on him, he had caused an inventory to be taken and had qualified as administrator of the succession of his daughter. Hence the object of this suit was attained. The fact that, after the inventory was taken, Smith attended to the store of the deceased before qualifying as administrator, did not affect the issues presented by plaintiff in his petition. The defendant had applied for appointment as administrator upon giving bond. He was so appointed, and he has accepted the succession with benefit of inventory. Whether or not he has done acts which made him individually liable for the debts of the succession, is a question for another proceeding.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of defendant, dismissing plaintiff’s demand with costs in both courts.


author: Mokgah, J.

text:
    No. 659.
    J. B. Pickett et al. vs. J. A. Haynes et al.

    Defendants have objected to the filing: of plaintiffs’ amended petition on the ground that it oame too late and it altered the substance of the demand. The objection is not well founded. The amendment was made before the trial, and it does not appear to be such a change in the character of the demand as is contemplated by the Code.
    unless the plaintiffs were notified of the proceedings in bankruptcy, they were not parties to them and were not bound thereby. The only thing which has the appearance of notice is the schedule and publication which are filed by the bankrupt. But this is not sufficient. The parties in interest must be notified, and of this fact there is no evidence in the record.
    The plea of prescription of five years is not tenable. The notes were all dated Jan-nary 14,1867, and payable in one, two, and three years from date. Judgment was obtained on the first note on the twenty-seventh of March, 1868, and this suit was instituted and service was made on the ninth of January, 1874. The two other notes were due on the fourteenth of January, i860, and fourteenth of January 1870. As service of this petition was made on the ninth of January, 1874, it follows that the suit was instituted and the defendants cited before the expiration of five years after they fell due.
    The prescription of two years, relied upon by defendants, refers to actions in bankruptcy as to matters between those who were parties to those proceedings. Plaintiffs not having been made parties to the bankrupt proceedings referred to in this case, it follows that they are not governed by the law which defendants invoke. and, as said plaintiffs were not before the bankrupt court, they are not bound by its decree.
    APPEAL from the Eighteenth Judicial District Court, parish of Bossier. Turner, J.

      Nutt & Leonard and J. A. Snider, for plaintiffs and •appellees.

      J. D. Watkins & Fort and B. B. Forman, for defendant and appellant.

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

   Mokgah, J.

John Pickett sold a tract of land to P. M. and A. P. But'ler for $10,375 57 in gold, one fourth of the price being cash, and the balance on a credit of one, two, and three years, with eight per cent in•terest from the day of sale, to secure which a mortgage and vendor’s privilege was retained. The mortgage contained a waiver of appraisement in case the land was sold, and also the pact de non alienando.

The notes were transferred by John Pickett to the plaintiffs. They were not paid at maturity, and P. M. Butler transferred his one half interest in the land to plaintiffs. A. P. Butler went into bankruptcy and assigned his interest for the benefit of his creditors. His interest was' •sold by the assignee in bankruptcy to J. H. Haynes, who took possession of the same.

This suit was originally instituted for the purpose of enforcing the resolutory condition, plaintiffs averring that they had tendered to the defendants the amount paid by them to the assignee in bankruptcy, asking that the property be restored to them free from incumbrance; that their special mortgage and vendor’s privilege be recognized; and that a period be fixed by the court in which the defendant may be required to pay the -balance of the purchase price, or in default thereof, to restore the land to plaintiffs’ possession.

Defendant claims to be the owner of the land under his title from the ■assignee in bankruptcy, which, he says, he purchased freed from all mortgages or other incumbrances. Plaintiffs then amended their petition, and, reiterating the allegations therein, aver that the sale set up by ■"the defendant is a nullity, because it was made without any notice to plaintiffs and in fraud of their rights, and was not made in conformity • with the requirements of the law. They deny that there were ever any legal proceedings had in bankruptcy against A. P. Butler. They aver ■ that, if the recorder of the parish of Bossier has assumed to cancel the mortgage given to secure the payment of the notes held by them, his action was illegal and unauthorized, and that the cancellation should be-erased. They aver that they are entitled to a judgment against A. P. Butler for the amount of the notes sued on, and, recognizing their mortgage as set forth in'their original petition, and directing the same to be enforced in accordance with the terms and stipulations of the mortgage, they pray that the recorder of Bossier parish be cited, and that, if their mortgage appear to be canceled, he be directed to erase such cancellation. They pray for judgment against A. P. Butler for the amount of the notes and interest as stated in their original petition and that it be • recognized and enforced according to its terms.

Defendants objected to the filing of this amended petition on the ground that it came too late, and because it altered the substance of the demand. The amendment was made before trial, and it appears to us that it was not such a change in the character of the demand as is contemplated by the Code. They then excepted peremptorily that the petition discloses no cause of action; that the district court was without jurisdiction ratione materice et personal. They pleaded the prescription of five years and the proceedings in bankruptcy.

That the property in question was surrendered in bankruptcy, and that it was sold by the assignee and purchased by the defendant, is not disputed. The question is whether or no the sale interfered with the plaintiffs’ rights. And this depends upon whether the plaintiffs were parties to the bankrupt proceeding and to the sale. Unless they were notified of the proceedings in bankruptcy, they were not parties to them and are not bound thereby. The only thing which has the appearance of notice is the schedule and publication which is filed by the bankrupt. But this is not sufficient. The parties in interest must be notified, and of this fact there is no evidence in the record. The case is similar in all of its important features to the cases of Willard vs. Brigham, 25 An. 600; King vs. Bowman, 25 An. 506; 21 An. 401.

That plaintiffs have a cause of action is, we think, apparent from the pleadings. They are suing to recover a debt. The case is between citizens of the State before a court of competent jurisdiction both as to the persons and object of the suit. The plea to the jurisdiction is not, therefore, well taken. The plea of prescription of five years is not tenable. The notes were all dated on the fourteenth of January, 1867, and payable in one, two, and three years from date. Judgment was obtained on the first note on the twenty-seventh of March, 1868, and this suit was instituted and service was made on January 9, 1874. The two other notes were due on the fourteenth of January, 1869, and fourteenth of January, 1870. As service of this petition was made on the ninth of January,, 1874, it follows that the suit was instituted and the defendants cited before the expiration of five years after they fell due.

The prescription of two years, relied upon by defendants, refers ■ to actions in bankruptcy matters between those who were parties to the proceedings. But as we have come to the conclusion that plaintiffs were not parties to the bankrupt proceedings, it follows that they are not governed by the law which defendants invoke.

As to the position that, if there is no debt, there can be no mortgage, it may be conceded. But we have seen that there is a debt. The argument consequently fails. It is urged that the jurisdiction of the bankrupt court is complete and exclusive. This may be as regards all who were properly before it. But we have seen that plaintiffs were not before that court. They are not bound, therefore, by its decree.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be affirmed with costs.

Rehearing refused.


author: Mobgan, J.

text:
    No. 593.
    James W. Howard vs. M. A. Walsh, Sheriff, et al. S. J. Wimbish and T. J. Howell, Intervenors.
    After the judgment was rendered and the appeal had been granted, Howard died. It was not necessary that appellants should revive the suit as against the representatives of his succession in order to perfect their appeal. All that they were hound to do was to file the bond required by the district judge and then see that proper parties were made in this court. This has been done.
    It was not necessary, when the notice of seizure was served, that the sheriff should notify the defendant in execution to divide the lands seized into lots of not less than ten, nor more than fifty acres. This was not required at the lime of seizure. It must be done before the sale, and a defendant in execution can not presume that the sheriff will not follow out the law in the execution of the judgment which he is intrusted with.
    That part of the land seized belongs to third parties to whom he is bound in war-rantee as the vendor thereof is a matter which concerns the owners of the property, and not the defendant in execution.
    There is no validity in the objection that the decree of the Supreme Court upon which the fieri faaias issued is a nullity, because there was no concurrence of a guorum of the court as required by the constitution. A majority of the court was present when the judgment was pronounced. Admitting the fact which it is sought to prove, that one of the judges was absent when the judgment was read, and that two others dissented, the judgment pronounced was the judgment of the majority of the court. It was the judgment of the court which was pronounced, and whether one of the concurring parties was absent or not matters nothing. The court entered the decree as a court — a. guorum being present. This is sufficient, and all that the law requires.

      APPEAL from the Tenth Judicial District Court, parish of Oaddo. Callihan, Judge ad hoc.

      Land & Taylor, for plaintiff and appellee.

      G. M. Pegues, Pgan.& Wise, for defendants and appellants.
   Mobgan, J.

Martha Howard, executrix of James Howard, excepts to the citation or notice of revival served on her, because J. W. Howard died in February, 1875, several months before the appeal bond was filed, and the suit was not revived in the district court against his legal representatives.

After the judgment was rendered, and the appeal had been granted, Howard died. It was not necessary that appellants should revive the ■suit against the representatives of his succession in order to perfect their -appeal. All they were required to do was to file the bond required by the district judge, and then see that proper parties were made in this court. This has been done.

This is an injunction suit to restrain the sale of certain property seized by the sheriff on a fieri facias issued under a decree of this court, rendered at our session here in July, 1*871. The grounds are:

First — That, when the notice of seizure was served, the sheriff failed to notify the defendant in execution to divide the lands seized into lots of not less than ten, nor more than fifty acres.

It is not necessary that this notice be given at the time of seizure. It must be done before the sale, and a defendant in execution can not presume that the sheriff will not follow out the law in the execution of the judgment which he is intrusted with.

Second — That part of the land seized belongs to third parties to whom he is bound in warrantee as the vendor thereof.

This is a matter which ooncerns the owners of the property,- and not the defendant in execution.

Third — That the decree of the Supreme Court, upon which the fieri facias issued, is a nullity, because there was no concurrence of a quorum of the court as required by the constitution.

A majority of the court was present when the judgment was pronounced. But it is sought to be made to appear that one of the judges who concurred in the decree was absent when the judgment was read, and that two others dissented.

Admit the fact to be as stated. The judgment pronounced was the judgment of a majority of the court. It was the judgment of the court which was pronounced, and whether one of the concurring justices was absent or not matters nothing. The court entered the decree as a court, a quorum being present, and this is sufficient and all that the law requires.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be avoided, annulled, and reversed, and that the injunction herein issued be dissolved, with ñve per cent special and fifteen per cent general damages, with costs in both courts.

Osr Application eoe Reheabing.

In this injunction suit Wimbish and T. J. Howell filed an intervention and third opposition, claiming to be the owners of certain portions of the land seized under the execution. They prayed to be allowed to join the plaintiff and asked that his injunction be maintained.

As to T. J. Howell, the defendants in execution answered that the property which he claims was seized in error, and that its release had been ordered, so that he can suffer no damage by the judgment rendered herein. As to Wimbish, no answer was filed.

The case was submitted to us without argument or brief on the part of the plaintiffs or intervenors. We did not and do not understand how there can be intervenors in an injunction suit, the result of which is an injunction without affidavit and without bond, and we decided the case simply between the plaintiffs in injunction and defendants. Our decree was intended to reach them and none other, and it will be so construed.

As regards the intervenors, if their property is sought to be sold in execution of the judgment, they have their remedy, which was not intended to be and which is not affected by our decree.

Rehearing refused.


author: Moegan, J.

text:
    No. 557.
    John T. Ludeling vs. Mary A. Felton and Husband.
    On the eighteenth of January, 1872, Mary A. Felton, wife of J. J. "Worley, being a widow, renounced the community- by authentic act.
    In September, 1874, this suit was instituted to make her responsible for plaintiff’s claim as judgment creditor of her husband, on the ground that a community of property existed between them, and that at his death she assumed the control and ownership of that property.
    It has already been held by this court that the widow of a deceased husband may renounce the community, at any time before the court having unlimited jurisdiction over the subject has pronounced a final judgment against her as a partner in community. This decision correctly interprets the law.
    If the defendant had concealed, or made away with, any of the property belonging to the community after the dissolution of the marriage, her renunciation would not have availed.
    from the Fourteenth Judicial District Court, parish of More-house. Bay, J.

      C. T. Dunn, for plaintiff and appellant.

      Todd & Brigham, for defendant and appellee.
   Moegan, J.

Plaintiff, a judgment creditor of James G. Felton, seeks to make the defendant, his widow, responsible for his claim, upon the ground that a community of property existed between them, and that, at his death, she assumed the control and ownership of that property.

Many questions of law are presented by the pleadings, and have been argued orally and by brief. In our opinion the determination of one of' these questions disposes of the case. This suit was instituted in September, 1874. On the eighteenth of January, 1872, she renounced the community by authentic act.

In the case of Cockburn vs. Wilson, 20 An. p. 39, it was held that the widow of a deceased husband may renounce the community, at any time before the court having unlimited jurisdiction over the subject-matter has pronounced a final judgment against her as a partner in community. This decision, we think, correctly interprets the law. If the defendant-had concealed, or made way with, any of the property belonging to the community after the dissolution of the marriage, her renunciation would not have availed her. C. 0. 2378, 2387. The evidence in the record does not, in our opinion, establish such a state of facts.

Judgment affirmed.


text:
    No. 687.
    G. W. Stoner vs. A. Flournoy, Sheriff, et al.
    until the contrary he proved, this court must presume that the judge a quo had sufficient legal evidence before him to sustain the judgment rendered, while it does not appear from the minutes of evidence in this injunction ease that <7ie-evidence in the tax-suit was offered in evidence, the judgment rendered therein contains this caption: “Andby further reason of the production and filing in. open court of the tax-bill or claims due by the defendant to plaintiff, and due-proof of the publication of same as roauired by section thirteen of act No. 9Rr approved April 27,1871, it is ordered,” etc. With this in the record before this court it can not be said there was no publication, required as citation.
    It has been previously held by this court that the Legislature has the power to enlarge the limits of towns and cities, and, having this power, thoy also have with it the power to impose taxes for all the purposes of the corporations. The question whether the benefits resulting from the extension authorize the burden of contributing to the payment of existing debt, is one for the Legislature to determine in annexing new territory.
    APPEAL from the Parish Court, parish of Caddo. Oressvoell, J.

      Nutt & Leonard, for plaintiff and appellant.

      T. Alexander, City Attorney, for defendant and appellee.
   Howell, J.

The plaintiff has appealed from a judgment dissolving an injunction obtained by him against the execution of a judgment in favor of the city of Shreveport for the taxes of 1871. The grounds of injunction urged in this court are:

First — Want of advertisement.

The record of the tax-suit against the plaintiff is in evidence in this and it is contended on behalf of plaintiff that, because the evidence upon which the judgment therein was rendered is not in the record so produced, and the act of incorporation (act No. 98 of 1871, sec. 13,) makes it “ the duty of the administrator of the department of finance to file the bills and proofs in the appropriate court, therefore it must be inferred that the publication required was not made in this instance. Such is not the rule or presumption of law. Until the contrary is shown, we must presume that the judge had sufficient legal evidence before him to sustain the judgment rendered by him. In this instance, while it does not appear from the minutes .of evidence in this case that the evidence in the tax-suit was offered in evidence in this, the judgment rendered therein contains this caption: “ And by further reason of the production and filing in open court of the tax-bill or claims due by the defendant to plaintiff and due proof of publication of same as required by section thirteen of Act No. 98 of the General Assembly of Louisiana, approved April 27,1871, it is ordered, adjudged,” etc. With this before us we can not say that there was no publication, required as. citation.

Second — The act (No. 98) extending the limits of the city of Shreveport and taking in the lands of plaintiff is unconstitutional, because passed in opposition to the wishes of the inhabitants whose property was thus annexed against their express protest, because at its date the city was largely in debt, to pay which the tax in this case was levied against plaintiff, who was not represented or had any interest in contracting said indebtedness ; and because the lands of plaintiff derive no benefit from the municipal government, which has provided no police over the same, nor repaired, nor laid out roads, streets, etc.

The question is one of power, and it has been held that the Legislature has the power to enlarge the limits of towns and cities, and, having this power, they have with it the power to impose taxes for all the purposes of the corporation. The question whether the benefits resulting from the extension authorize the burden of contributing to the payment of existing debt, is one for the Legislature to determine in annexing the new territory.

This and other points here raised have been before this court and been decided adversely to the position taken by this plaintiff. See 12 An. 515 ; 27 An. 156.

There is another point raised in the brief, but as it is not in the petition for injunction we will not discuss it.

Judgment affirmed.


author: Ludeling,. O. J.

text:
    No. 681.
    A. E. Paul vs. Jacob Hoss et al.
    The property In controversy belonged to the community existing between the plaintiff and husband, H. Murphy, now deceased. The plaintiff having sued her husband for separation from bed and board, and for paraphernal property, and for her interests in the community property, the suit was dismissed by con7 sent; and by an act in the form of a donation the usufruct or the rents of one half of the property, separate and community, owned by him, was given to her during her life, and ho agreed not to sell or incumber the property. This is claimed to be a compromise of the suit.
    Shortly after this, the property in dispute was mortgaged by Murphy to Hoss, the defendant in this suit, for money loaned. Murphy having died, and Hoss having obtained an order of seizure and sale of said property, the sale was enjoined by plaintiif, and on appeal to this court said injunction was dissolved.
    On the aforesaid property being finally sold on a writ of seizure and sale obtained by Hoss, it was adjudicated to him, and the sheriff ejected the plaintiff from the premises in order to give the said Hoss complete possession, and'this was done some time after the sale, and after the sheriff had returned the writ. It is of this act of the sheriff that the plaintiff chiefly complains. She maintains that the property did not belong to the succession of her husband, but had become hers by virtue of a partition resulting from a judgment obtained by her contradictorily with her co-heirs pending the injunction suit aforesaid, and recognizing her rights as asserted in said injunction suit.
    The judge a guo erred in overruling the plea of res judicata set up by defendant. The alleged grounds in plaintiff’s petition are the same in substance as those set up in the injunction suit.
    The partition judgment obtained by plaintiff could not affect the rights of the mortgage creditor, who then had the property under seizure, or of any other creditor.
    If in the suit of the plaintiff against her husband the act of donation which took place be regaided as a compromise, and if it be conceded that the law authorizes compromises between husband and wife (which, however, this court does not believe), still it could have no greater effect than a regular judgment, and it is well settled that, when a wife asserts any rights against a creditor of the hus- ‘ band, by virtue of a judgment in her favor against him, she must prove that the judgment was well founded in law and in fact.
    The debt of Hoss was created during the community, which was dissolved by the death of plaintiff’s husband. She had not renounced the community, but on the contrary, had taken possession of one half of the community property in a partition with the heirs; she was therefore responsible for her share of the community property in her possession; and the price of the sale went to extinguish taxes and other community debts, which should be refunded to the purchaser, or, at least, tendered to him before an action to revoke the sale can be instituted.
    The sheriff’s seizure was sufficiently accomplished. He went upon the property and gave notice to all the occupants thereof of his seizure, and notified the tenants to pay rents to him, and he appointed one of the tenants keeper for him. The fact that he permitted the plaintiff to remain on the premises did not vitiate the seizure.
    The possession of the'judgment debtor is dissolved by the legal seizure under the writ. It is vested in the sheriff until the property is disposed of; that officer is considered the rightful possessor, and can maintain an action of trespass against any person disturbing him in such possession.
    If the privileged claims which are asserted did exist, they were general privileges, and should have been asserted against the property and money in the hands of the executor.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      A. N. 0. Hicks, for plaintiff and appellee.

      Egan & Wise, for defendant and appellant.
   Ludeling,. O. J.

This is an action against the sheriff of Caddo parish and Jacob Hoss for damages for an alleged illegal and forcible dispossession of the plaintiff from the premises claimed and occupied by her, and to have the title of Hoss, acquired at sheriff’s sale, declared null.

The property in controversy belonged to the community existing between the plaintiff and her husband, Hugh Murphy, now deceased. ■

In 1870 the plaintiff sued her husband for separation from bed and board, for her paraphernal property, and for her interest in the community property.

This suit was dismissed by consent, and on the tenth of March, 1870, by an act in the form of a donation, the usufruct, or the rents, of one half the property, separate and community, owned by him, was given to her during her life, and he agreed not to sell or incumber the property. It is claimed that this was a compromise of the suit, which was dismissed in consequence of the execution of this act.

Some time after this Hoss, loaned Murphy money, and Murphy' executed a mortgage on the property in dispute to secure the payment of the loan. Murphy having died without paying this debt, Hoss obtained an order of seizure and sale to sell the mortgaged property. This sale was enjoined by the plaintiff, and, on appeal to this court, the injunction was dissolved in July, 1874. See 26 An. 643.

The sheriff then proceeded with the sale, and adjudicated the property to J. Hoss, but he failed to put the vendee in possession. Hoss then took a rule on the sheriff to show cause why he neglected to give him (Hoss) possession of the property, and the rule was discharged, on the ground that no seizure had been made. Thereupon another writ was issued, and the property was seized, and, after advertisement, sold, when Hoss again became the adjudicatee of the property, and the sheriff forcibly ejected the plaintiff from the premises in order to give the said Hoss complete possession. This dispossession was some time after the sale, and after the sheriff had returned the writ. It is this act of the sheriff that the plaintiff chiefly complains of. After the institution of the injunction suit, and while it was pending on appeal, the plaintiff instituted a suit for a partition of the succession property of her deceased husband, and she contends that she obtained a judgment of partition which vested in her the property in question free from all claims against said succession created subsequently to the date of the alleged compromise, and that she was in possession for more than one year when the sheriff illegally dispossessed her, as above stated, and she attacked the sale to Hoss on the grounds that the property did not belong to the succession of Murphy; that the sheriff made no seizure of it, and that the price bid did not exceed the privilege claims against the property which were superior to his mortgage.

The defendant, Hoss, among other defenses, pleaded the judgment in the injunction suit, decided by this court in 1874 and reported in 26 An. p. 643, as res judicata.

The judge a quo overruled the plea. We think the judge erred. The alleged grounds of ownership in her petition are the same in substance as those set up in the injunction suit. The only additional ground is, that she had a judgment, obtained contradictorily with her co-heirs, recognizing her rights asserted in the injunction suit. This certainly could not affect the rights of the mortgage creditor who then had the property under seizure, or of any other creditor. 25 An. 484; 12 An. 604. Even if the act of donation be regarded as a compromise, and if it bo conceded that the law authorizes compromises between husbands and wives (which, however, we do not believe), still, it could have no greater effect than a judgment regularly rendered between them. It is well settled that when a wife asserts any right against a creditor of the husband, by virtue of a judgment in her favor against him, she must prove that the judgment was well founded in law and in fact. This she has utterly failed to do in this case. Besides, the debt of Hoss was created during the community which was dissolved by the death of Murphy. She had not renounced the community, but, on the contrary, had taken possession of one half of the community property in a partition with the heirs. She was, therefore, responsible for her share of the community debts, at least to the extent of the community property in her possession, and the price of the sale went to extinguish taxes and other community debts, which should be refunded to the purchaser, or at least tendered to him, before an action to revoke the sale can be instituted. See Barrilli vs. Gauche, 24 An.

As to the allegations that the sheriff did not seize the property because he did not take actual possession, the proof is that the sheriff went upon the property and gave notice to all the occupants thereof of his seizure, and notified the tenants to pay rents to him, and he appointed one of the tenants keeper for him. The fact that he permitted the plaintiff to remain on the premises did not vitiate the seizure. See 5 M. 268.

“The possession of the judgment debtor is dissolved by the legal seizure under the writ. It is vested in the sheriff until the property is disposed of; that officer is considered the rightful possessor, and can maintain an action of trespass against any person disturbing him in such possession,” etc. “ When the adjudication is made, its legal effect is to transfer to the purchaser all the rights and claims which the debtor might have had to it. The sheriff is, therefore, bound to pass an act of sale to the purchaser, and to surrender to him. the possession of the property sold.” 6 R. 100; 20 An. 573.

As to the allegation that the property did not sell for enough to pay the privilege claims on the property superior to the mortgage of Hoss, the evidence is, that taxfes to the extent of seven hundred dollars were due, and the other privileged claims, amounting to about eight hundred dollars, consisted of attorney’s fees, administrator’s commissions, court costs, and physician’s bill. The price bid and paid was ten hundred and fifty dollars, more than enough to pay the taxes, and there is no proof of the registry of the other claims alleged to be privileged; but it does appear that the executor of Murphy had other property of the succession, and that he paid to the plaintiff herself over nineteen hundred and twelve dollars in money, besides delivering to her property worth upward of four thousand dollars, being the half of the inventoried value of the money and property in his possession at the date of the partition of the -estate of Murphy. If those privileged claims existed, they were general privileges, and should have been asserted against the property and money in the hands of the executor.

It is therefore ordered and adjudged that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the defendants, rejecting the plaintiff’s demands with costs in both courts.


text:
    No. 676.
    Josiah Morris & Co. vs. Reuben White.
    Defendant is' sued for the amount of a promissory note with interest, given for a part of the price of a plantation bought by him, and secured by vendor’s privilege and mortgage. The defense is failure of consideration, because a large portion of the land bought by him belongs to another party, and did not belong to the vendor. Defendant further alleges that the note due does not belong to plaintiff, but to the vendor.
    Plaintiff acquired the note before maturity; consequently the equities between the original parties, if any exist, can not be pleaded against the note; but the mortgage is not negotiable, and as to that the equities may be pleaded. But the defendant has been in the peaceable and undisturbed possession of the land since 1871, the date of his purchase, and is not even threatened with eviction, Hence his defense can not prevail.
    APPEAL from tbe Tenth Judicial District Court, parish of Caddo. Looney, J.

      Nutt & Leonard, for plaintiffs and appellees.

      Land & Taylor, for defendant and appellant.
   Ludeling, C. J.

The plaintiff sued the defendant on a note for $5650 and interest, given for a part of the price of a plantation bought by the defendant, and secured by vendor’s privilege and mortgage.

The defense is failure of consideration; that a large portion of the land bought by him belongs to another party, and did not belong to the vendor; and that the note does not belong to the plaintiff, but to the vendor.

The defendant propounded interrogatories to the plaintiff, who is a resident of Alabama, which were ordered to be answered. In issuing the commission to take these answers the clerk addressed it to any judge or justice of the peace of the State of Louisiana, instead of Alabama. The interrogatories were answered and sworn to before a magistrate in the State of Alabama, and were filed in the clerk’s office several months before the trial.

On the trial, the defendant moved to take the interrogatories as confessed, or to dismiss the suit. The motion was properly refused. The plaintiff had honestly and categorically answered the interrogatories, and the objection urged to their reception in evidence was purely technical. In depriving the plaintiff the use of the answers, the judge a quo did all that justice or the strictest rules of practice would exact.

The evidence shows that the plaintiff acquired the notes before maturity, consequently the equities between the original parties, if any exist, can not be pleaded in this suit against the note, but the mortgage is not negotiable, and as to that the equities may be pleaded. But the evidence shows that defendant has been in the peaceable and undisturbed possession of the land since 1871, the date of his purchase, and that he is not even threatened with eviction.

It is therefore ordered that the judgment of the court a qua be affirmed with costs of appeal.


text:
    No. 667.
    Walling’s Heirs vs. Joseph Howell’s Succession.
    Counsel for the succession ol Joseph Howell, who was the surety of Cain, administrator of the succession of James Walling, whose heirs are the plaintiffs in this caseto recover a certain sum, the amountof ajudgment obtained by them against the succession of Cain, the said administrator, whose succession they allege to have prosecuted to insolvency without avail, objects to this suit as being premature, because, among other reasons, the judgment against the succession of Cain, the principal on the bond sued on, was rendered by the parish court, which was without jurisdiction of the amount.
    The above-mentioned exception is well taken, under the constitution the parish court was without jurisdiction of the suit against the succession of Cain, the principal on the bond, the amount claimed in said suit and for which judgment was rendered, being over two thousand dollars. The judgment is an absolute nullity, and plaintiffs have not therefore taken all necessary steps against the principal before suing the surety.

      APPEAL from the Tenth Judicial District Court, parish of Caddo. Looney, J.

      A. B. Levisee, William A. Seay, and J, B. Slatterly, for plaintiffs and appellants.

      A. M. V. Hicks, for defendant and appellee.
   Howell, J.

Plaintiffs, claiming to be the sole heirs of James Walling, Jr., deceased, brought this suit against the succession of Joseph Howell, deceased, who was the surety of S. H. Cain, administrator of the succession of said James Walling, Jr., to recover the sum of $2229 07, the amount of a judgment obtained by them against the succession of Cain, the administrator, whose succession they allege they have prosecuted to insolvency without avail.

The defendant excepted that the suit is premature, because, among other reasons, the judgment against the succession of Cain, the principal on the bond sued on, was rendered by the parish court, which was without jurisdiction as to the amount.

The exceptions were referred to the merits without prejudice; an answer was filed setting up various defenses, among them the prescription of one, three, five, ten, and twenty years. The prescription of ten years was sustained, and plaintiffs appeal.

We think the above exception was well taken. Under the constitution the parish court was without jurisdiction of the suit against the succession of Cain, the principal on the bond, the amount claimed in said suit, and for which judgment was rendered, being $2229 07. The judgment is an absolute nullity, and plaintiffs have not, therefore, taken all necessary steps against the principal before suing the surety. Their action is premature.

It is therefore ordered that the judgment in favor of defendant be affirmed without prejudice, and with costs.

Rehearing refused.


text:
    No. 614.
    John W. Willis vs. S. L. Elam, Administrator, and Wm. H. McVae, Sheriff.
    The defendant has assigned as error on the face of the papers that the judgment was rendered out of term-time and is therefore null. He relies on section 2017, R, S„ which authorizes the parish judges to adjourn their courts for one week or a less time, and he contends that the judge a quo erred in adjourning his court from the third to the fourth Monday after he had previously adjourned it from the second to the third Monday. This court can not concur in this view of the law. The law limits the time during which an adjournment may be made, but it does not prohibit the judge from adjourning his court more than once at the same term.

      It is a mistake to suppose that the surviving spouse beeomes the heir oí the deceased husband or wife and is seized of his or her property by the mere operation of the law. ■
    Article 949 of the Civil Code declares that natural children and the surviving husband or wife, being put into possession of the estate left to them, are not considered as having succeeded to the deceased from the instant of his death'; but they do not the less transmit their rights to their heirs, if they die before having made their demand to be put into possession. The reason is that this sort of heirs having only a right of action to cause themselves to be put in possession of successions thus falling to them, this right and this aetion form a part of their succession, which they transfer to their heirs.
    The defendant’s claim for damages in conseauenee of this suit, which was, among other things, to have the administrator dismissed for maladministration and praying for an injunction to prevent the sale of property advertised under an order of court, can not be granted. This is not an injunction to restrain the execution of a money judgment, and is not governed by the aets’of 1831 and 1833. The remedy is by a suit on the injunction bond, which right is hereby reserved.
    APPEAL from the Parish Court, parish of Franklin. Brice, J.

      Morrison & Farmer, for plaintiff and appellee.

      Charles J. Boatner, for defendant and appellant.
   Ludeling, C. J.

The petition in this case is very lengthy, not perspicuous, and somewhat contradictory. In his brief, the plaintiff says that he sues as the owner of the interest of two of the heirs of Elizabeth "Wansley, to have her heirs declared to be the owners of the estate of H. B. Herring, her former husband, who, it is alleged, died without other heirs, and to bo put in possession of said estate, to have the administrator removed for maladministration, and for an injunction to prevent the sale of property advertised under an order of court.

The answer denies the interest of Willis in the matter or his right to bring this suit, and he prays that the injunction may be dissolved with damages.

The defendant has assigned as error on the face of the papers that the judgment was rendered out of term-time and is therefore null. He relies on section 2017 of the Bevised Statutes, which authorizes the parish judges to adjourn their courts for one week or a less time, and he contends that the judge a quo erred in adjourning his court from the third to the fourth Monday, after he had previously adjourned it from the second to the third Monday. We can not concur in this view of the law. The law limits the time during which an adjournment may be made, but it does not prohibit the judge from adjourning his court oftener than once at the same term.

The record shows that the estate of H. B. Herring was opened and administered upon by his widow, who afterward married Wansley, and died without closing the administration. That S. L. Elam was then appointed administrator of the estate of Herring, and that he duly qualified as such. It further appears that Mrs. Wansley left no children or ascendants, but collateral heirs, some of whom are minors; that J. W. Willis, the plaintiff, purchased the right and interest of two of the heirs of Mrs. Wansley in and to her succession, which is under administration, and that Willis has accepted the succession with benefit of inventory. There is no proof of maladministration on the part of the administrator in this record. The allegations of the petitioner show that the estate of Herring is indebted to the estate of Wansley, which is being ■administered by her surviving husband; and the record shows that she had not accepted the succession of Herring or demanded to be put into possession thereof, when she died.

It is a mistake to suppose the surviving spouse becomes the heir of the deceased husband or wife, and is seized of his property, by the mere operation of the law.

Article 949 of the Civil Code declares that “ natural children and the surviving husband or wife being put into possession of the estate left to them, are not considered as having succeeded to the deceased from the instant of his death; but they do not the less transmit their rights to their heirs, if they die before having made their demand to be put into possession. The reason is, that this sort of heirs having only a right of •action to cause themselves to be put into possession of successions thus falling to them, this right and this action form a part of their succession, •which they transmit to their heirs.”

There being debts, and a part of the heirs being minors, who could only accept with benefit of inventory, and some of the heirs of age having accepted with benefit of inventory, there existed a necessity for •an administration. C. C. 1041. The rights of the plaintiff, as purchaser of the interests of two of the heirs of Mrs. Wansley, whatever they may be, will attach to the residuum of the estates of H. B. Herring and of Mrs. Wansley, after paying debts and law charges. The defendant has asked for damages resulting from this suit.

This is not an injunction to restrain the execution of a money judgment, and is not governed by the acts of 1831 and 1833. The remedy is by a suit on the injunction bond, which right is hereby reserved to defendant.

It is therefore ordered and adjudged that the judgment of the lower court be reversed and annulled, and that there be judgment rejecting the plaintiff’s demand and dissolving the injunction, with costs of both courts.

Behearing refused.


text:
    No. 610.
    Ivy I. Davis vs. Parish of Caldwell.
    Plaintiff’s demand is based upon an ordinance of the police jury, adopted March 7,. 1876, appropriating a certain sum of money to be paid to plaintiff for claims,, warrants, etc. The defense is that said ordinance did not create any legal obligation, because juries are prohibited trom contracting debts without fully providing in the ordinance creating them the means of paying the principal and interest of the debts so contracted, which was not done in the ordinance in-yoked, and there was no money in the treasury. The defendant further asserts that the police jury was without any power to issue and put in circulation such warrants and instruments as plaintiff pretends to hold and to make defendant, responsible for.
    The ordinance above mentioned does not seem to come within the rule invoked by the defendant, as it did not create a debt, but merely recognized existing obligations, which, under the evidence in this ease, were created by law in favor of the parties originally holding them.
    The doctrine announced in the case of Sterling vs. west Feliciana, 26 An. 69, and in Flagg vs. St. Charles, 27 An. 319, can not be invoked in this suit, because it is not, as to this part of the demand, brought on the instruments condemned in said cases, but on this ordinance, and this court thinks it is within the power of the police jury to acknowledge and' order the payment of such claims as the evidence shows those to be and which are authorized by law — the fees of certain officei-s, witnesses, etc. — the amount of which is fixed by law.
    APPEAL from the Twelfth Judicial District Court, parish of Caldwelh Taliaferro, J.

      T. G. Meredith, for plaintiff and appellee.

      J. T. Strother, District Attorney pro tern., for defendant and appellant.
   Howell, J.

The defendant has appealed from a judgment against it for fifteen hundred dollars and interest, and ordering the proper officers to assess and collect a tax sufficient to pay the same.

The suit is based on the allegations that' plaintiff was the holder and owner of fifteen hundred dollars of parish paper issued, examined, approved, and allowed by the police jury, signed by the president thereof, and registered by the treasurer according to law and the ordinances of the police jury; that said paper was issued for a lawful consideration, and consisted in claims for services rendered to the parish, such as jury claims, witness claims in criminal cases, police jury warrants for per diem of members of the police jury, jury certificates of grand and petty jurors, claims and warrants in favor of the jailor for feeding prisoners, claims allowed plaintiff as salary as parish treasurer for 1875, claim of T. J-Broadway, sheriff, for per diem and services in attendance on the parish and district courts, and the judge’s warrant for the same and for various other such like legal services, all amounting to fifteen hundred dollars; that on the seventh of March, 1876, the police jury passed an ordinance allowing plaintiff $719 of said sum (the evidences of all having been destroyed by fire), and remitting plaintiff to the courts for the balance of his claim; that he has demanded payment and received the reply that there are no funds.

The answer sets up the general denial; admits the passage of the ordinance No. 13, appropriating |719 to plaintiff for claims, warrants, etc., ••said to have been destroyed by fire on the eleventh of February, 1876, but denies that said ordinance created any legal obligation, because police juries are prohibited from contracting debts without fully providing in-the ordinance creating them the means of paying the principal and interest of the debts so contracted, which was not done in the ordinance invoked, and there was then no money in the treasury; denies that plaintiff ever had any claims, warrants, etc., destroyed by Are, and if he had, the parish is not liable therefor, because the parish was without power to issue and put in circulation such instruments; and denies responsibility for judicial claims signed by the j'ndge and clerk, because it is delegating powers to said officers not conferred by the constitution.

Ordinance No. 13 is as follows:-

“ An ordinance to pay 1.1. Davis the amount of his salary as parish treasurer for the year 1876, and to pay him for claims and warrants destroyed by Are on the eleventh of February, 1876.
Be it ordained by the police jury of the parish of Caldwell: That the ¡sum of three hundred dollars be appropriated to pay 1.1. Davis his salary of parish treasurer for the year 1876, and the sum of four hundred and nineteen dollars and seventy cents be appropriated to pay said Davis for warrants Nos. 647, 595, 599, 349, 612, 597, 468, 510, 511, and 545, destroyed by Are on February 11, 1876; provided said Davis execute his bond in favor of the parish for the sum of seven hundred and twenty dollars, with two good securities, said bond to last two years. That this ordinance take effect from and after its passage.” Adopted March 7, T876.

It seems to us that this ordinance does not come within the rule invoked by the defendant, as it did not create a debt, but merely recognized ■existing obligations, which, under the evidence in the case, were created by law in favor of the parties originally holding them. Nor can the doctrine announced in the eases of Sterling vs. West Feliciana, 26 An. 59, and Flagg vs. St. Charles, 27 An. 319, be properly invoked in this,‘as this suit is not, as to this part of the demand, brought on the instruments condemned in said cases, but on this ordinance, and we think it is within the power of the police jury to acknowledge and order the payment of ■such claims as the evidence shows these to be, and which are authorized by law, the fees of certain officers, witnesses, etc., the amount of which is Axed by law.

As to the sum acknowledged by this ordinance, we think the judgment, under .the evidence, is correct. But the allegations and evidence as to the other portion of plaintiff’s demand are too vague and indefinite to ■authorize a judgment. ' " [

It is therefore ordered that the judgment in favor of plaintiff be reduced from fifteen hundred dollars to $719.70, with five per cent interest from the eighth of March, 1876, and costs; that the balance of plaintiff’s. demand be dismissed as of nonsuit, and that as thus amended the judgment be affirmed; plaintiff to pay costs of appeal.


text:
    No. 638.
    John F. Phifer vs. J. D. Maxwell. James Campbell, Intervenor.
    The question is, whether a draft given in payment of rent and subsequently lost and not paid was in any sense a novation of the debt due for rent. It must be answered in the negative. The receipt states in express terms that the draft would discharge the debt only when paid. It was not paid. This was not the substitution of a new debt for an old; it was nothing more than an order on a third party to pay the debt of the debtor. The order, having not been satisfied, left the debt as it was before the order was given.
    The plaintiff was therefore entitled to his writ and to the privilege upon the property which he caused to be seized. As to the intervenor claiming to be paid for supplies furnished for raising the cotton seized, he only appeared to assert his. rights after the property had been bonded. It was too late.
    APPEAL from the Fourteenth Judicial District Court, parish of More-house. May, J.

      Todd & Brigham, for plaintiff and appellee.

      Newton & Hall, for the defendant and for the intervenor, appellants.
   Moegan, J.

Plaintiff leased a plantation to the defendant. In payment of the rent thereof he gave a draft on “Wyehe & Morgan, of New Orleans, which draft was accepted by them-. • The receipt which his agents gave for the draft recites that when paid the rent was to be satisfied thereby. The draft was lost. Another draft was given in lieu thereof, which draft Wyehe & Morgan refused to accept unless a bond of indemnity was given them that the first draft would not be presented to them. This was refused, and the draft was returned to defendant. The-first draft has never been paid.

Plaintiff then sequestered certain cotton belonging to the defendant,, and claims a privilége thereon for the payment of the rent due him. The property sequestered was bonded. Subsequent to the bonding thereof Campbell intervened, and^’claimed a privilege for having furnished the supplies necessary to raising the cotton.

The defendant contends that the draft on Wyehe & Morgan, which was accepted, discharged the rent, and that, as the same was never jiresented to them for payment, and never protested, plaintiff, by his own negligence, has discharged the defendant.

There is no question here as to the responsibility of Wyche & Morgan upon their accepted draft. The matter for us to determine is, whether the draft was in any sense a novation of the debt due for rent. We think it was not. The receipt states, in terms, that it was only to discharge the debt ivhen paid. It was never paid. This was not the substitution of a new debt for an old; it was nothing more than an order on a third party to pay the debt of the debtor. The order not having been paid left the debt as it was before the order was given. The plaintiff was entitled to his writ and the privilege upon the property which he caused to be seized. As to the intervenor, he only appeared to assert his rights after the property had been bonded. This was too late.

On the merits, as to the amount claimed, we think the judgment of the district judge did justice between the parties.

Judgment affirmed.


author: Howell, J. Mokgan, J., LeoNabd, J.,

text:
    No. 5921.
    Isidore Newman & Bro. vs. M. Kaufman & Co. et al.
    A eheok is always supposed to be drawn against funds, and any one rectuested to indorse it as surety must show that it is to be used differently from its usual purpose, and also show clearly that some specified limit was fixed to his liability. No other object could be imagined for requiring a surety on a cheek than that it should be held for a time, or until funds should be provided.
    In this ease plaintiffs loaned Kaufman & Co. a sum of money on the check of the latter, with- weil as surety, for a time not fixed, and there was “ no prolongation of the terms granted to the principal debtor without the assent of the surety,” as urged in the defense. Hence the surety has not been released or discharged from the liability assumed by him.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Cotton & Levij, for plaintiffs and appellees.

      Singletm & Browne, for Weil, surety, defendant and appellant.
   Howell, J.

Defendants are sued in solido on a check drawn by M. Kaufman & Co. in favor of plaintiffs and on which Meyer Weil became surety. The defense by Weil, who is the only appellant, is that plaintiffe are guilty of laches in not presenting said check within a reasonable time, by which he is released from liability.

The material facts, are that a member of the firm of M. Kaufman & Co. wished to borrow a sum of money from plaintiffs and give their check for the amount in favor of and to be held by plaintiffs for an indefinite time, and for which they were to receive seventy-five cents per day. Plaintiffs refused to take the check without a'good indorsement. The party asked if defendant, Weil, would be satisfactory, and plaintiffs answered in the affirmative. In a short time the check was presented and accepted with Weil’s name as surety on it. This occurred early in the morning; Newman says about ten o’clock, and Weil says nine o’clock.

The testimony of one of the plaintiffs and the defendant Weil is contradictory as to what subsequently occurred in regard to the promise of the latter to pay the check, and we are left to determine the liability of the surety from the whole evidence, the circumstances, and legal presumptions.

We attach but little importance to the difference of an hour in the time at which the transaction occurred. “ A check is always supposed to be drawn against funds,” and any one requested to indorse it as surety must know it is to be used differently from its usual purpose, and should show clearly that some specified limit was fixed to his liability. No other object could well be imagined for requiring a surety on a check than that it should be held for a time, or until the funds should be provided. In this case, we think the testimony of Newman is supported by the circumstances and presumptions, and that plaintiffs loaned Kaufman & Co. a sum of money on the check of the latter with Weil as surety for a time not fixed, and that there was no “prolongation of the terms granted to the principal debtor without the assent of the surety,” as urged in defense, and hence the surety has not been released or discharged from the liability assumed by him.

Judgment affirmed.

Mokgan, J.,

dissenting. I think the defendant is not bound.

When he indorsed the check in question I think he only guaranteed that, at the time of its date, the drawer thereof had the amount of money which it called for in the bank upon which it was drawn. I do not see how it can be distinguished from any other check. I understand the law to be that, to make the indorser of a check liable it must be presented within a reasonable time. Here plaintiff kept the check in his possession for several weeks without the knowledge of the defendant. He was, I think, justified in believing that the check had been presented and paid. His right in this regard, I think, is made apparent from the fact that the record discloses that, between the date of the check and the time it was presented, the drawer had sufficient funds in bank to pay the same.

LeoNabd, J.,

dissenting. I can not coincide with the views of the majority of the court in this case.

The obligation upon which plaintiffs sue is as follows:

“ New Orleans, August 19,1873.
“ Citizens’ Bank of Louisiana, pay to the order of I. Newman «fe Brother seven hundred dollars. M. KAUFMAN <fe GO.”

Upon the back of the check appears the name of “ Meyer Weil,” one of the defendants in this suit.

It is agreed by counsel upon both sides that the obligation of Weil is that of a surety. But what is the extent of this contract of suretyship ? Leaving out of view the testimony of Newman, plaintiff, and Weil, defendant, in which they directly contradict each other, we have no evidence upon the point in question, except the instrument itself.' By its terms alone, therefore, must the obligation of the surety.be tested.

A check is defined by Parsons to be “ a brief draft or order on a bank or banking-house, directing it to pay a certain sum of money.” Bills and Notes, vol. ii, p. 67. “ They are seldom made or rightfully used for circulation.” Therefore, he adds, “ in regard to their presentation for payment, a few days delay would charge the holder with negligence.” Ib. p. 79. “ With respect to a check on a banker,” says Ohitty, “ it is now settled that it suffices to present it for payment to the banker at any time during banking hours on the day after it is received, and that no laches can be imputed to the holder in not presenting it for payment early in the morning of the second day.” Ohitty on Bills, p. 386. A banker’s check,” says Greenleaf, “ may be presented on the next day after its date; this being considered a reasonable time.” Evidence, vol. ii. .section 179. See, also, Byles' on Bills, p. 123. Without insisting upon so stringent a rule, it is certain that checks must be presented for payment within a short time, say a few days at most, after they have been drawn.

‘ In the leading case of Down vs. Halling, Eng. Oom. Law Reports, vol. x. Halroyd, justice, said: “ A check is payable immediately, and the holder of it keeps it at his peril. Now, in this case, the check had been due five days at the time it was taken by the defendants. That was a circumstance that ought to have excited their suspicion.- I think that when the defendants took the check, more than a reasonable time for presenting it for payment had elapsed.”

The contract of the surety, Weil, in the case at bar was, that he would pay the amount of the cheek to the holder in case it should be dishonored upon presentation, and his principal should fail to discharge the debt that would be fixed by the protest. The law merchant, howóver, declares that this presentation for payment must take place within a reasonable time. The obligation of the surety, therefore, reduces itself to that of paying the amount of the check to the holder, in case the bank should fail to pay upon being duly requested to do so within a few days of the date of the contract. The implied obligation of the holder of the check is, that he will use all reasonable diligence to collect the amount of the check from the bank. If he neglects to do this, he can no longer look to the surety, because he has himself failed to carry out the terms of the contract. The check of Kaufman was not presented until November 18,1873, three months after it was drawn. Can it be reasonably supposed, in the absence of any testimony to that effect, that Weil ever intended, when he became surety upon the check, to remain surety for any such length of time ? One might very well believe, in writing his name upon the back of another’s check, that it Would be paid if presented in the ordinary course of business, or, if not paid, that he could make the money out of his principal. But does it follow that he would agree to become surety for the' debt of the drawer, as represented by the check, for a term of months or years at the option of the holder of the cheek ? His obligation was manifestly conditional, but this interpretation would make it absolute and unconditional, as though he had bound himself as surety upon a promissory note. I conclude, therefore, that Weil only bound himself as surety upon the check sued on, with the understanding that the check was to be presented within a reasonable time; that, as it was not presented for three 'months, manifestly an unreasonable time, the holder could have no recourse against the surety according to the terms of the latter’s contract. But even assuming that Weil became absolutely liable as surety for the debt represented by the check when he wrote his name on the back of that instrument, has he not been relieved by the act of the holder, Newman ? Article 3063 of the Civil Code declares that “ the prolongation of time to the principal debtor, without the consent of the surety, operates a release of the latter.” The same rule is recognized by the general commercial law. “ The acceptor of a bill of exchange,” says Best, C. J., in Philpot vs. Briant, 4 Bing., 717, “ is considered as the principal debtor; all the other parties to the bill are sureties that the acceptor shall pay the bill if duly presented to him, and if he does not then take it up, that they, on receiving notice of its nonpayment, will pay it to the holder. But if the holder gives the acceptor further time for payment, without the consent of the drawer or indorsers, he discharges them from all the liability that they contracted by becoming parties to the bill.” In the present case the principal debtor was the drawer, Kaufman; it follows that no extension of time could be granted to him without operating the release of the surety, Weil. Now, although it has been urged that Newman had a right to keep the check for an indefinite time, and to present it when he pleased, yet, it has not been shown that he had a right, by the express or implied consent of the surety, to bind himself not to present the check at all. The most that-can be claimed is, that the check represented a debt of Kaufman, due and exigible, and that Weil could at any time, by paying the debt to Newman, exact it from his principal. It seems, however, that Newman, after receiving the check, bound himself not to present it, nor to exact the debt from Kaufman, for an indefinite period, and that this contract was made for a valid consideration. Here is the testimony of plaintiff himself upon this point:

Question — “He (Weil) agreed to pay you interest on the seven hundred dollars ?” (This was the amount represented by the check.)
Answer — “Yes, sir.”
Question — “ How much ?”
Answer — “ Seventy-five cents a day. He never paid it; he agreed to pay it, but never paid it.!’
Question — “ Was that the agreement he made with you at the time he got you to take it?”
Answer^ — “ Yes, sir, it was.”
. Question — “ How many days did you agree to hold it ?”
Answer — “It was indefinite.”
Question — ■“ As long as he paid you seventy-five cenfs a day were you to hold it ?”
Answer — “ Yes, sir.”

It will thus be seen that Newman not only gave the debtor time for the payment of the debt beyond the terms of the contract (for a check is payable on demand), but actually bound himself not to present it as long as the seventy-five cents a day were punctually paid by the drawer. Could Weil, then, have paid the check in the hands of Newman and exacted payment in time from Kaufman ? Manifestly not. He could acquire no greater rights against his principal than those possessed by the indorser. Kaufman would still have the right to pay the seventy-five cents per day, and thus reserve the payment of the debt for an indefinite period. The surety might see the property of his principal wasting away before his eyes and yet could take no steps to secure his liability. Is it possible that one can be held to have bound himself by such an obligation who simply wrote his name upon the back of a check as surety for its payment when duly presented ? The obligation of the surety is not merely stricii, says the jurisconsult, it is strictissimi juris, and could not be extended by implication beyond the express terms of his contract. And it behooves the party who seeks to render one person liable for the debts of another,” said the Supreme Court of Louisiana in Hazard vs. Lambeth, 3 R. 273, “to prove such liability beyond all doubt.” This, I think, has not been done in the present case.

Rehearing refused.


author: Leonaed, J.

text:
    No. 4860.
    Mrs. India Brown and Husband vs. James Garrard and A. N. Craig.
    Factors and commission merchants, when exercising their functions of receiving selling, talcing their commissions, and accounting to then-principals, are acting in a fiduciary capacity within the meaning and intendment of the thirty-third section of the bankrupt law of 1867, and not relieved from obligations contracted in that capacity by a discharge in bankruptcy.
    from the Sixth District Court, parish of Orleans. Saucier, J.

      Labal & Aroni, for plaintiff and appellant.

      Billings & Hughes, for defendants and appellees.
   Leonaed, J.

The plaintiff, a married woman, separate in property from her husband, sued the defendants for the sum of §1183 97, being the balance due her from the proceeds of cotton shipped to the commission house of Garrard, Craig & Co., of which defendants were members. Garrard and Craig admit the correctness of the indebtedness, and that it arose in the manner stated by the plaintiff, but pleaded their discharge in bankruptcy as a bar to plaintiffs claim.

The bankrupt act declares that no debt shall be discharged under that act which was created by one “ acting in a fiduciary capacity.” In the case of Banning vs. Bleakly & Co., 27 An., it was decided that “ factors and .commission merchants when exercising their functions of receiving, selling, taking their commissions, and accounting to their principals, are acting in a fiduciary capacity within the meaning and intendment of the .thirty-third section of the bankrupt law of 1867, and are not relieved from obligations contracted in that capacity by a discharge in bankruptcy.”

This decision is conclusive of the case before us.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be reversed, and that the plaintiff, Mrs. India Brown, recover of the defendants, James J. Garrard and Archy N. Craig, in solido, the sum of eleven hundred and eighty-three dollars and ninety-seven cents, with five per cent interest from February 5,1872, and costs of both courts.


text:
    No. 6336.
    State ex rel. Executors of F. P. Boutté vs. Judge of the Second District Court, Parish of Orleans.
    It is true that the judge a quo has the right to determine whether the appeal is sus-pensive or devolutive, hut his action is subject to review by this court in this form of proceeding.
    'The judgment appealed from did not decree the payment of money or the delivery of specific property, and the bond is ample enough to cover costs. This is suffl.-cient.
    There being no law taking this ease out of the usual rule, and the amount involved being sufficient, a suspensive appeal does lie, and the right to take it exists for ten days. The sections 3737 and 3738, R. S„ do not declare that the failure to furnish bond as ordered shall work ipso facto a removal, but shall authorize a removal.
    APPLICATION for a writ of prohibition against the judge of the Second District Court, parish of Orleans.

      McSnery, Ellis & Ellis, for relators.

      Jerome

      Meunier, for Judge Tissot, respondent.
   Howell, J.

The relators, executors of the last will of Frangois P. Boutté, allege that James P. Guinault, surety on their bond as executors, filed a petition in the Second District Court praying to be released as such surety; that after answer thereto and hearing the parties judgment was rendered discharging said sur.ety from said bond; that, on the third day thereafter, they applied for and obtained a suspensive appeal from said judgment, and, on the third day after this, filed a bond for the amount fixed by the judge; that subsequently, on a rule taken by said Guinault, said appeal was declared devolutive only and not suspensive, and they ask for a writ of prohibition to restrain the judge and said Guinault from executing said judgment pending the appeal, which they pray to be suspensive.

The judge, through counsel, answers that he did not exceed his jurisdiction:

First — Because the right of deciding whether an appeal is suspensive or devolutive is exclusively within the province of the court granting it.

Second — Because the appeal bond, although for the amount fixed by the court, was not sufficient in amount for a suspensive appeal.

Third — Because the appeal bond was not filed within the legal delay for suspensive appeals.

Fourth — And because no suspensive appeal lies from such a judgment, which is controlled by sections 3737 and 3738, R. S., under the provisions of which a failure to furnish bond as ordered, within three days, works ipso facto a removal.

These reasons do not seem to us to justify the action of the judge:

First — It is true he has the right to determine whether the appeal is suspensive or devolutive, but bis action is subject to review by this court in this form of proceeding.

Second — The judgment did not decree the payment of money or the delivery of specific property, and the bond is sufficient to secure costs. See 21 An. 43, State ex rel. Ganssin vs. the Judge.

Third and Fourth — There being no law taking this case out of the general rule, and the amount involved being sufficient, a suspensive appeal does lie, and the right exists for ten days to take it. The sections of the Revised Statutes cited do not declare that the failure to furnish bond as ordered shall work ipso facto a removal, but shall authorize a removal.

It is therefore ordered that the prohibition issued herein be made perpetual.


author: Wylv, J.

text:
    No. 4855.
    Nicholas Claudel vs. Catherine Palao.
    The law allowing the necessitous widow to claim one thousand dollars out of the succession of her husband has no application to a case like this, where the widow accepted the succession purely and simply and was regularly put in possession thereof.
    By thus accepting the succession it ceased to exist. She became the owner of the property and also liable to plaintiff for the amount of his claim.
    APPEAL from the Sixth District Court, parish of Orleans. Saucier, J.

      Charles Louque, for plaintiff and appellee.

      H. D. Ogden, for defendant and appellant.
   Wylv, J.

Defendant appeals from the judgment which plaintiff obtained against her foreclosing the mortgage which her husband had executed prior to his death. She claims one thousand dollars, as a necessitous widow, out of the proceeds of the property sought to be sold, it being the only immovable property left by her husband.

The difficulty is, in 1871 defendant accepted purely and simply the succession of her husband, and was by order of court regularly put in possession thereof. As owner, she sold the movable property, which consisted of a small lot of furniture.

By thus accepting the succession, it ceased to exist. She became the owner of the property, and also liable to plaintiff for the amount of his debt.

The law allowing the necessitous widow to claim one thousand dollars out of the succession of her husband, has no application to a case like this, where the widow accepted the succession purely and simply, and was regularly put in possession thereof.

The charge in the brief, that plaintiff induced the defendant to accept the succession with a view to defeat her just claim as a necessitous widow, is not established by the evidence, assuming its importance as a defense, of which we express no opinion.

Plaintiff in answer to the appeal prays that the judgment be amended, so as to strike out that clause: “ Reserving to the defendant the right to urge her claim as a necessitous widow in separate proceeding.”

Defendant is not entitled to this reservation.

It is ordered that said clause be stricken out, and, as amended, that the judgment be affirmed with costs.


author: Moegan, J. Ltjdeling, C. J.

text:
    No. 6274.
    City of New Orleans vs. George L. Bright.
    The clofendant-admits that the extended boundary oi New Orleans, under the act of 1R74, No. 71, embraces his property, but insists that that portion of the law is unconstitutional, because it is not covered by or embraced in the title of the act. The court can not concur in this view.
    The title of the act enumerates other objects besides the annexation of the city of Carrollton to the city of Now Orleans, and among them is the creation of the " Seventh District of the city of New Orleans and a municipal court and a sanitary district,” etc. The boundary of this Seventh District includes the defendant’s property.
    APPEAL from the Superior District Court, parish of Orleans. 1Taw-kins, J.

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

      George L. Bright, defendant and appellee, in propria persona.

   Moegan, J.

The defendant claims that a portion of the property upon which the city tax is levied, which is known as the “ Oakland Course ’* does not lie within the limits of the city of New Orleans. It is this item alone which he complains of. The plaintiff relies upon act No. 71 of the Legislature of 1874 to show that it does.

The defendant says that this law is unconstitutional, the object not being expressed in its title. But we have determined this adversely to his views in the cases of the State vs. Daniel, and in the succession of Téaulet, recently decided. Opinion Book 45, p. 50.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be amended, and that there be judgment for the city as prayed for, for $1547, and that as thus amended it be affirmed, defendant to pay the costs in both courts.

On Reheabing.

Ltjdeling, C. J.

On a re-examination of this case we are not inclined to change our former decree. The defendant admits that the extended boundary of New Orleans, under the act of 1874, No. 71, embraces his property, but he insists that that portion of the law is unconstitutional, because it is not covered by or embraced in the title of the act. To this we can not assent. The title of the act enumerates other objects besides the annexation of the city of Carrollton to the city of New Orleans, and among them is the creation of “ the Seventh District of the. city of New Orleans and a municipal court and a sanitary district,” etc. The boundary of this Seventh District includes the defendant’s property. Besides, the boundary or limits of Carrollton seem to have been extended by act No. 2 of 1872 (p. 29) so as to include defendant’s property.

It is therefore ordered that the decree heretofore rendered remain undisturbed.