author: Miller, J. Watkins, J. Miller, J. Miller, J.

text:
    No. 12,376.
    State National Bank vs. New Orleans Brewing Association et als.
    The suit and attachments against sureties before the time fixed by their contract for payment, can not be maintained on the theory that the insolvency of the principal debtor matures the debt, and authorizes suit and attachments against the sureties.
    When the Code for specific purposes matures the debt of the insolvent debtor the insolvency contemplated by the Code is the cession of property by the debtor* O. C. Art. 2054; 10 La. 582; 5 Rob. 449; 10 An. 324; 38 An. 443.

      Watkins, y.f concurring: There is no doubt of the fact, that an attachment will lie before the debt falls due; but an absolute judgment can neither be prayed for nor taken before the maturity of the debt.
    In the present suit, I think it evident the suit was brought and an absolute judge ment demanded on a debt not due at the time, and that the plea of prematurity was well grounded, and should have been maintained and the suit dismissed, reserving the right of the plaintifi to bring his suit anew.
    Appeal from the Oivil District Court for the Parish of Orleans. King, J.

      F. N. Butler and J. MeOonnell for Plaintiff, Appellee.

      Dinkelspiel & Hart for Receiver Ricks, Appellee.

      Harry H. Hall for O. J. Babst, Defendant, Appellant.

      Moise & Oahn for B. F. Hoppe, Defendant, Appellant.

      Buck, Walshe & Buck for Peter Blaise, New Orleans Brewing Association and Emile Muller, Defendants, Appellants.

      Carroll & Carroll and Theodore Q. Spitzfadden for Theodore Brum-mer, Defendant, Appellant.

      J. B. Rosser, Jr., for Jos. D. Taylor, Defendant, Appellant.
    Argued and submitted February 20, 1897.
    Opinion handed down March 29, 1897.
    Judgment amended April 12, 1897.
    Judgment amended May 10, 1897.
    Rehearing refused May 10, 1897.
   The opinion of the court was delivered by

Miller, J.

This appeal is by defendants sued and condemned to pay on the promissory note of the New Orleans Brewing Association,, on the back of which the appellants placed their names before the note was delivered by the association to the plaintiff.

The note dated 4th of August, 1895, payable ninety days after date, was given by the association for a loan of money, and it was understood that the appellants’ names were to be placed on the note to-secure the loan, the agreement being fulfilled by the delivery to the plaintiff of the note thus secured. This suit was brought before the-maturity of the note, the petition alleging the loan to the Brewing Association, the giving by the association of the note, that the-appellants were guarantors and bound in solido for its payment, and it is averred that the note had matured by the insolvency of the association. Attachments were obtained against three of the appellants on plaintiff furnishing bond and the affidavit the defendants had mortgaged, or were about to mortgage, their property with fraudulent intent, and judgment was demanded against the association and the appellants in solido for the amount of the note, with privilege on the property of the three defendants attached under the writs.

The association, placed in the hands of liquidators after the suit was brought, excepted on the ground of prematurity. The three defend-ants against whom the writs were issued moved to dissolve, on the .grounds of prematurity; that the petition disclosed no cause of action, and that the affidavits were untrue. The defendants excepted to the suit for prematurity, that of one of the defendants being filed after his answer, but his motion to dissolve the attachment assigned prematurity as one of the grounds; all filed the exception, claiming that the defendants being sureties were entitled to the benefit of •division, and with these exceptions some of the defendants repeated the exception of no cause of action made on the motion to dissolve the writs. The exception overruled, the defendants, reserving the benefit of the exceptions, answered, pleading the general issue, and again insisting on the division allowed sureties and claimed in the exceptions. There was judgment against the defendants in accordance with the prayer of the petition and all the defendants appeal, except the association.

It is contended by plaintiff that the exceptions were waived by the answers of defendants and their insistence on the benefit of division. But the surety sued before the time of payment stipulated in his contract, may well plead prematurity, and that defence failing, claim the division of the debt accorded sureties. Civil Code, Arts. 3045, 3049. The answers filed after the exceptions were overruled left the defendants the full benefit of their exceptions, if sustained on appeal, and for greater caution the defendants, in answering, repeated and reserved the advantage of the preliminary defences. We think there was no waiver of the exceptions.

Again, it is insisted by the plaintiff that from One of the defendants there was no exception of prematurity until after his answer. He is one of the three against whom the attachments issued. One of his grounds to dissolve the writ was prematurity. In this suit, the right to bring it being placed solely on the ground of the insolvency of the maker of the note, in our appreciation the general issue put at issue the alleged insolvency relied on as authorizing the suit against sureties before the default of their principal. ■

There has been an elaborate discussion in this court in reference to the character of the obligation arising from defendants not payees, placing then' names on the note sued upon before its delivery to the plaintiff. This 'question of the original liability and the modification produced by the plea of division ought to be deemed fully answered by our jurisprudence. Civil Code, Arts. 3045, 3049. Smith vs. Gorton, 10 La. 376; McGuire vs. Bosworth, 1 An. 248; McCausland vs. Lyons, 4 An. 273; 4 Boilleux, p. 659. If the appellants could be viewed as endorsers in the commercial sense, the suit would fail because the default of the maker at maturity and notice of that default is essential to hold the endorser. It is, however, as sureties the petition charges that the appellants are liable, and the question is whether the surety can be sued and his property attached before the period for payment stipulated by his contract, and, of course, without any default of the principal debtor to pay at the appointed time. This is the dominating question in the case, and in its solution whether defendants are sureties, endorsers, whether bound jointly or in solido, and all other questions introduced into this discussion can, in our opinion, exert no influence.

On the part of the defendants it has been urged that no attachment, whether on the ground of fraudulent assignment, actual or contemplated, or on any other ground specified by the Oode of Practice, can issue against a surety before, under his contract, he can be called on to pay. On the same line of argument, the right to sue the surety before the time appointed to fulfil his engagement is denied. His engagement is to pay, if the principal defaults, at the maturity of the obligation. C. C., Arts. 3035, 3045. Hence, the defendants have invoked the line of authority that under our law, whatever the cause to attach, no attachment can issue unless the debt is absolute, and a conditional liability will not sustain the writ. In the language of the authorities defining the character of the debt there must be debitum inprsssenti solvendum in futuro — that is, an existing debt, although the term of payment has not arrived. Hence, our courts have uniformly held there could be no attachments against endorsers or drawers of bills of exchange, whether viewed as accommodation drawers or endorsers, or sureties, or as drawers or endorsers in the commercial sense, until their liability had become fixed by the default of the maker of the note or the acceptor of the bill, the principal debtor. Other types of conditional liabilities occur in our reports in which attachments, as well as the right to issue, have been denied. Taylor vs. Drane, 13 La. 64; Blanchard vs. Groussat, 1 An. 96; Harrod vs. Burgess, 5 Rob. 449; Denègre vs. Milne, 10 An. 325. If the debtor does not pay ” is the qualification of the surety’s obligation, and, hence, it is argued that, on the same principle the attachments were denied in the cases cited of conditional liabilities, the suit and attachment must fail in this case against sureties sued before the contingency on which their liability depends. But the plaintiff contends that contingency has arrived; that the debt for which the sureties bound themselves was an absolute existing debt due when the attachments were issued, and this maturity before the time stipulated in the contract, it is claimed, resulted from the actual insolvency of the brewing association, the principal debtor. On that issue there has been a great mass of testimony placed in the record and discussed in the argument. The right of plaintiff to sue sureties and attach their property is put upon the single and distinct ground that the debt had become exigible" and absolute, as to principal and sureties, by the actual insolvency of that principal. Oan this proposition, that actual insolvency matured the debt, stand under our jurisprudence?

The contention of the plaintiff that actual insolvency of the com - pany matured the debt, and hence authorized the suit and attachment against the sureties, is based on the provision of the Code that the cession of the debtor matures the debt. C. C., Art. 2054. It is claimed that as under our law the corporation can make no cession of property, hence the actual insolvency of th8 corporation is to be deemed the equivalent, in respect to maturing debts, of the judicially declared insolvency of the natural person.

In one aspect the argument of the plaintiff is contrasted with the familiar principle that the contract of the surety is to be strictly construed in his favor. No act of the creditor or debtor can change the obligation the surety has incurred and on which he is entitled to stand. The surety’s contract in this case is to pay on a fixed date, if his principal defaults. The argumenkof the plaintiff is, in effect, that the surety’s obligation is changed by the fact that the debtor afterward becomes insolvent. If that insolvency shortens the term for payment of the principal’s obligation, still it is not easy to appreciate that the surety binding himself only to pay at the appointed time, and in the event of the debtor’s default, can be called on earlier because the debtor has become insolvent. The argument thus gives to the articles of the Oode, relating to the cession of the property of the debtor, the effect of changing without his consent the surety’s contract. We discover no-such purpose in the Oode. When the debtor makes a cession the-law matures his debts, not the obligation of the surety, and matures the debtor’s obligation simply and only to bring about that equal distribution the law contemplates of his property to his creditors.. But the law in bringing about this result does not, as plaintiff’s argument maintains, invade the surety’s obligation, no party to the* cession and change the time of his payment.

If the plaintiff’s argument is accepted, the term of payment of" the obligation of sureties is made utterly uncertain. With a well' defined obligation to pay in ninety days, the argument is, the surety may be called on to pay and his property attached, at any moment, after he signs, if the debtor conceives the principal debtor is insolvent and is enabled subsequently' to prove it. The argument destroys all certainty as to the most important feature of the contracts, the time of payment. A man’s pecuniary condition when his insolvency is not judicially declared must necessarily be a matter of opinion for-others. He is apt to deem himself solvent. His creditors may have a different opinion. Is it to be said the time for payment fixed by the contract is to be displaced, and the test or rather no test, supplied by the opinion well or ill founded of the debtor’s insolvency? Above all is this rule applicable to a surety. He binds himself to pay on a fixed day. Is he to be made to respond earlier, or at any time, the creditor conceives the principal is insolvent. It is the policy of the law in maturing debts of the insolvent debtor, for purposes of securing the equal distribution of his property, to establish a fixed point of time. It is essential this point of time should be certain. All transfers of property by the insolvent debtor three months before his failure are annulled, and failure is used in the same sense as insolvency. In other respects it is important that the insolvency that is to mature debts, or for other purpose, should be determined, and not depend on the supposed insolvency of the debtor. Hence the Oode itself declares it is the cession of property, not actual or supposed insolvency, that matures the debt. Art. 2054. There is a line of cases that hold that the insolvency, whenever used by the Code, to mature debts or to accomplish any other purpose, means judicially declared insolvency; that is, the cession of property. Mullaudon vs. Foucher, 8 La. 582; Harrod vs. Burgess, 5 Rob. 449; Denègre vs. Milne, 10 An. 324; Seixas vs. Citizens Bank, 38 An. 443. The provision then of the Code relied on to sustain this suit and attachments maturing debts, designed only to regulate the distribution when the cession of property occurs, has no application to a corporation not within the scope of our law providing for cession to creditors. Nor does the theory of that provision sustain the argument that the maturity of the debt, especially as regards- sureties, depends on the pecuniary condition of the debtor. The maturity is fixed by the contract. When the law, for specific purposes only, declares the maturity of the debt, that maturity is fixed, i. e., by the cession of property. It follows that the theory on which this suit was instituted and the attachment issued, that the alleged insolvency of the brewing association gave a right to sue the sureties and attach their property, can not be maintained.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and the attachments issued be set aside, and plaintiff’s suit dismissed with costs.

Chief Justice Nicholls concurs in the decree.

Concurring Opinion.

Watkins, J.

This is a suit upon an unconditional obligation for the payment of money by the brewing association, coupled with an attachment.

It is of the following form, viz.:

“ |20,000. New Orleans, August 14, 1895.
“Ninety days after date we promise to pay to the order of ourselves twenty thousand dollars at the for value
received, with interest at the rate of eight per cent, per annum after maturity until paid.
“ No. . Due November 15.
“ New Orleans Brewing Association,
“ Ernest Fragst.
“ New Orleans Brewing Association,
“ Peter Blaise, President.”

Upon the reverse of that instrument appear the following endorse - ments, viz.:

“ New ORLEANS Brewing Association,
“ Peter Blaise, President.
“ New Orleans Brewing Association,
Ernest Pragst, Secretary.
“ E. F. Hoppe.
“ E. Muller.
“ J. D. Taylor.
“ Theo. Brummer.
“ Ohas. J. Babst.
“ Peter Blaise.”

The suit was filed on the 3d of November, 1895, more than ten days prior to the date at which the note went to maturity, and in the petition there is a full and complete description of the note and the date of its maturity, as it appears from the recitals thereof.

Alleging that the persons whose names are above enumerated became “ guarantors ” to the bank for the full payment of said note “as surety endorsers” thereon, and “bound in solido with, and as sureties to said association,” the petition alleges that it is advised and believes that said association is insolvent and unable to pay its. debts.

That Theodore Brummer, Charles J. Babst and Peter Blaise, “ sureties upon said note as aforesaid, have each of them mortgaged, assigned, and disposed of, or are about to mortgage, assign or dispose of their property rights and credits, or some part thereof, with intent to defraud their creditors,” etc. — in the language of the Code of Practice. C..P. 240.

The petitioner then prays for citation to the brewing association and each one of the parties enumerated, and for writs of attachment against the three defendants enumerated, viz.: Theodore Brummer, Charles J. Babst and Peter Blaise; and that, after due proceedings had, petitioner have judgment in its favor and against “ all the parties enumerated supra, naming them, for the full amount of the debt, with eight per cent, per annum interest from judicial demand until paid;” that the writs of attachment be maintained on all the property-attached, with the recognition of the privilege of the bank upon same.

On the 11th November, 1895, the defendant, Peter Blaise, filed a motion to dissolve the writ of attachment as to him, on the grounds (1) no cause of action; (2) prematurity, and (3) falsity of affidavit; and upon the same date a like motion to dissolve was filed by Charles J. Babst.

Upon the 14th of November, 1895, Theodore Brummer filed a similar motion to dissolve the attachment as to him, prefacing same with a reservation of right under-an exception, that had been filed previously.

Subsequently some of the remaining parties filed similar exceptions; and one or two of them pleaded a division of their liability.

On the trial of the exceptions, the same were submitted on the face of the papers; and two days subsequently the court rendered its opinion.

In his' opinion the judge a quo substantially assigned that taking the allegations of the petition as true, the parties placing their names on the back of the note sued on must be held and treated as sureties or guarantors as it is so alleged, snd such being the legal situation “the debt existed, the obligation was incurred, and the defendants bound themselves to the plaintiffs for the moment for which they placed their signatures upon the back of the note, and not upon the maturity of the note as contended,” though the judge expressly stated that he did not thus hold or decide, but from the standpoint of the defendants pleading no cause of action the case must be viewed in that light for the purpose of the exception.

In this I think he-was right.

■Proceeding, the judge said further:

“ The court takes the allegation of the petition in this respect, as well as the allegation that by reason of the insolvency of the maker, the New Orleans Brewing Association,- the note, is due as true, and decides on the face of the papers the plaintiff has shown legal grounds for an attachment, and therefore the exceptions of no cause of action are overruled, and the motions to dissolve, on the face of the papers, are denied,” not disposing of the pleas of prematurity.

In this I think he was wrong.

Subsequently the case went to trial, and judgment was rendered in favor of the plaintiff for the full amount of the debt, against all the defendants in solido, sustaining and enforcing the attachments.

An application for a new trial having been applied for and overruled the three attached defendants prosecute this appeal.

In my view the note in suit evidences an absolute debt as existing at its date, and one the character of which, whether joint or solidary, it is needless now to determine. As the parties bound themselves so will they remain bound. ■ ■

Having placed their names upon the back or reverse of the note at the time of its execution, or while it was yet in the possession of the payee or first taker, the several defendants other than the maker will be deemed sureties, and as such bound as their principal is.

Rogers & Woodall vs. Gibbs, 24 An. 467, and the authorities therein collated. If the defendants were only bound as endorsers pure and simple, their obligation would be merely conditional, only becoming absolute at maturity. Claflin & Co. vs. Feibelman, 44 An. 519; National Bank vs. Moss, 41 An. 227.

But, notwithstanding the debt existed, it was not due on the face of the note, at the date it was filed, or when judgment was randéred.

“Every obligation,” says the Code, “gives impliedly a right of action to enforce its execution, but the obligation and the right of action do not always arise at the same time. Thus, in contracts to be performed at a future period, the obligation which gjrows out of the contract arises at the very moment of making it, but the right of action growing out of it arises only when the stipulated term has arrived.” C. P. 14.

“ What is due only at a certain time can not be demanded before the expiration of the intermediate time,” etc. R. C. 0. 2052.

“ When the demand is premature, that is to say when the action has been brought before the debt had become due, the suit must be dismissed, leaving to the party his right tcf bring the suit anew.” C. P. 158.

The prayer of the petition in this case is for an absolute judgment against the defendants in solido, and that is the kind of judgment which was pronounced against them; and claim is made that the note had, as a matter of law, become due by reason of the fact that the brewing association had become insolvent and unable to pay its debts.

But conceding the fact, arguendo, that the brewing association had become insolvent since the execution of the note, did that have the legal effect of maturing the debt and rendering it exigible as to the principal and securities?

The only cases that are cited by the plaintiff are Jeffries vs. Belleville Iron Works Company, 15 An. 19, and the ease of same title, 18 An. 685; but the only proposition decided in those cases was that corporations have no right to make a cession of property under the insolvent laws of the State — a proposition frequently and recently affirmed by this court.

There are two kinds of insolvency known to and recognized in our law, viz.: (1) actual insolvency; (2) declared insolvency. An illustration of the former is found in the precept of the Code, which declares, that “ by being in insolvent circumstances is meant that the whole property and credits are not equal in amount, at a fair-appraisement, to the debts due by the party.” R. C. C. 1985.

And again: “Solvency is the ability to pay one’s debts. He who ean not pay all that he owes is not solvent.” R. C. C. 8556, No. 26.

An illustration of'the latter is the “ failure,” or insolvency defined in the Revised Statutes, Sec. 1898, and which means “ a condition of insolvency,” which has been judicially and “ authoritatively fixed; an event certain and determined.” Seixas vs. Citizens Bank, 38 An. 424.

We are not informed' that it has ever been held that the actual insolvency of a natural person has the effect of making all of his indebtness mature; and we are not aware of any precept of law or adjudication which declares that any such an effect is to be attributed to the indebtedness of an insolvent corporation, or as to those who have become its securities.

In the recent case of Poitevent & Favre vs. Standard Manufacturing Company, ante p. 72, we drew the distinction between the two kinds of insolvency, and held that actual insolvency was no ground for an attachment.

There is no doubt of the fact that an attachment will lie before the debts fall'due; but an absolute-judgment can neither.be prayed for nor taken before the maturity of the debt.

The proper course is to ash for a writ of attachment to issue for a debt not due, unaccompanied by a prayer for absolute judgment; and when the debt becomes due, the petition should be amended, setting forth the fact of the debt having gone to maturity since the original petition was filed, and that he is entitled to judgment for the debt— sustaining the attachment with privilege. Williams vs. Duer, 14 La. 531: Nelson vs. Pool, 17 La. 209; Catlett vs; Heffner, 23 An. 577; Warfield vs. Oliver, 23 An. 612; Gardner vs. Shipley, 4 An. 184; McDaniel vs. Gardner, 34 An. 341; National Bank vs. Moss, 41 An. 227; Claflin & Co. vs. Feibelman, 44 An. 518; Egan vs. Fush, 46 An. 474; Lemann vs. Truxillo, 32 An. 65; Gumbel vs. Beer, 36 An. 487.

In State ex rel. Merz vs. Judge, 31 An. 120, it was said:

“So, we hold that the question of prematurity must be tested by the facts existing at the date the suit is brought, and that the penalty is dismissal of the suit, if found premature.
“ Under this view it is manifest that the expiration, pending the suit, of the time of the alleged extension, does not relieve the-plaintiff from the consequences of his wrongful act; that the rela-tors have the right to have the court review the judgment of the District Court on the question of prematurity, and if the exception is found to be well taken, they have the right to demand the maintenance of their injunction and the setting aside of plaintiff’s order of seizure.”

In Adams vs. Day, 14 La. 503, it was held that the attachment allowed by act of 7th of April, 1826, in case of debts not due, was not intended as a means of bringing the debtor into court, but only as a conservatory measure. Irish vs. Wright, 8 R. 428; Read vs. Ware, 2 An. 498; Denègre vs. Milne, 10 An. 324.

I think it evident that the plaintiff’s suit was brought and absolute judgment demanded on a debt not due at the time, and that the plea of prematurity was well grounded, and should have been maintained and the suit dismissed, reserving the right of the plaintiff to ■bring his suit anew.

Entertaining this view, I think this is quite enough to decide.

Breaux, J., dissents.

Supplemental Decebe.

Miller, J.

In view of the consent herein filed for the modification of the judgment on this appeal: It Is now ordered, adjudged and decreed that our previous judgment be set aside, and in lieu thereof, ■it is now ordered, adjudged and decreed that the judgment of the lower court be avoided and annulled, in so far as it condemns the appellants Theodore Brumer, Peter Blaise, Charles J. Babst and E. F. Hoppe to pay plaintiff’s demand, and as to those defendants, it is ordered and decreed that plaintiff’s suit be dismissed at plaintiff’s •costs, and it is further adjudged and decreed that the writ of attachment issued against the property of said Theodore Brumer, Charles J. Babst and Peter Blaise be set aside and dissolved at plaintiff’s costs.

On Application por Rehearing.

Miller, J.

The application for the rehearing brings to our notice that some of the defendants against whom judgment was rendered by the court below did not appeal, and our judgment reversed that of the lower court as to all the defendants. We had, prior to the application, corrected the error in part, and we now make a further correction. It is therefore ordered that our previous decree, as well as the amendmentthereof, be set aside, and now proceeding to render such judgment as should have been given on this appeal. It is ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, in so far as it condemns Charles J. Babst, Theodore Brumer, Peter Blaise, E. F. Hoppe and Joseph D. Taylor, defendants, to pay plaintiff’s debt, and in so far as said judgment maintains the attachments against said C. J. Babst, Peter Blaise and Theodore Brumer; that as to said defendants the plaintiff’s suit be dismissed and said attachments be dissolved; that the costs of this appeal and those of the lower court incurred in prosecuting the suit against all said defendants be paid by plaintiffs, and in so far as the judgment of the lower court condemns the New Orleans Brewing Association and Emile Muller to pay plaintiff’s debt, interest and costs, said judgment is affirmed, and it is further ordered that the application for the rehearing, with this modification, be refused.

Breaux, J., dissents.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 12,405.
    State ex rel. Florville Foy vs. Mayor and Council of New Orleans.
    It is a fundamental principle of the law of mandamus, that a writ will never be granted in cases, where if issued, it would prove unavailing.
    The present application boars a close resemblance to that made in Ex rel. Samory, 34 An. 469, and the court quotes from and affirms the principles therein decided
    The city of New Orleans has not the same freedom of action it had prior to the Constitution of 1879.
    A party seeking to have public officers ordered by memdamus to perform duties imposed upon them by a certain specified law must keep inside the terms of the law and not travel beyond it.

      APPEAL from the Civil District Oourt for the Parish of Orleans. JKing, J.

      Louque & Pomes for Plaintiff, Appellee.

      James J. MeLoughlin, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Defendants, Appellants.
    Argued and submitted March 16, 1897.
    Opinion handed down March 29, 1897.
    Rehearing refused April 26, 1897.
    STATEMENT OP THE CASE.
    Relator alleged that he had obtained an absolute judgment against the city of New Orleans (affirmed by the Oourt of Appeals), in the sum of sixteen hundred and fifty-eight dollars, with five per cent, interest thereon from April 14, 1894, and costs of suit. That he was the transferee of another judgment rendered in favor of Jacob Burkhardt against the city of New Orleans, for the sum of nine hundred and thirty-seven dollars, with legal interest from February 8, 1887, and costs. That both of said judgments were recorded in the office of the Oity Comptroller.
    That under Act No. 5 of 1870 (extra session) it was m.ade the ministerial duty of the city of New Orleans to budget all unpaid judgments on the next budget, hat the Oity Council was then preparing the budget, and had published the budget, which was to be in force for the year 1897, and they had failed to place relator thereon for the amount of the aforesaid judgment, although due demand had been made. He prayed that a writ of mandamus issue, directed to the' Mayor and council of the city of New Orleans, ordering them to budget in the general budget for 1897 the amount necessary to pay the judgments aforesaid. The defendant city averred that the city had, in accordance with law, prepared and adopted a budget of revenues and expenditures for the year 1897. That the appropriations made in said budget, for the particular purposes therein named, could not be diverted from those objects for any cause whatsoever, but should remain and be kept sacred to the object of the appropriation (Act No. 88 of 1879, Sec. 5). That the budget of revenues and expenses exhausted all the revenues of that year, for the expenses of that year, as named in the budget..
    That it was the duty of the council to estimate the receipts and expenses in preparing the yearly budget, and that after the council had exercised its discretion vested in it by law and determined the amounts of receipts and expenditures, and had appropriated the same, its action could not be reviewed in a mandamus proceeding.
    That the demand of relator was an ordinary demand for money, and he was limited in his action against the fund and taxes and collections of the particular year during which the obligation which formed the basis of the judgment was created.
    That the city could not legally apply the taxes for the year 1897 for the payment of any other expenses than those of the year 1897. The District Court made the mandamus peremptory, ordering the Mayor and City Council to budget in their budget for the year 1897 the amount necessary to pay the two judgments of relator, and the city appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

The City Council, on the 15th of December, 1896, adopted its budget for 1897, and on the 16th of the same month it was approved and signed by the Mayor. The judgment making the mandamus peremptory was rendered on the 21st of December, 1896, and signed on the 4th of January, 1897. The original order for the alternative writ bore date December 8, 1896.

Act No. 5 of 1870, referred to by relator, requires in its first section that parties holding contested or disputed claims against the city of New Orleans should establish them by direct ordinary action brought against the city. By the second section it is enacted that thereafter no writ of execution or fieri facias should issue from any of the courts of the State against the city of New Orleans to enforce the payment of any judgment for money against the city, but final judgment against the city condemning the city to pay any sum in money when the same shall have become executory shall have the effect of establishing and fixing the amount of the plaintiff’s demand against the corporation and the plaintiff might cause a certified copy of the said judgment together with a copy of the plaintiff’s petition and the defendant’s answer in the cause in which such judgment was rendered, together with the certificate of the clerk of said court that such judgment is final and executory, to be filed in the office of the comptroller of the city, and it should be his duty to receive the same and cause the same to be registered in his office, of the date on which the same shall have been presented, and when so registered it should be the duty of the comptroller to warrant on the treasurer or disbursing officer for the amount due thereon without any special appropriation of money therefor by the Common Council; provided always that there be sufficient money in the treasury to pay such judgment specially designated and set apart for that purpose in the annual budget or detailed statement of items of liability and expenditure required to be made by the one hundred and twenty-fourth section of Act No. 164 of 1856, or such laws as might thereafter be enacted relating thereto. The third section of the act declared that in case the amount of money designated in the annual budget for the payment of judgments against the city, at the date when any judgment against the city shall have been final and executory, shall have become exhausted, the Common Council shall have power, if they deem it proper, to appropriate from the money set apart in the budget or annual estimate for contingent expenses a sufficient sum of money to pay said judgment or judgments, but if no such appropriation be made by the Common .Council, then all judgments shall be paid in the order in which they shall be filed and registered in the office of the comptroller from the first money next annually set apart for that purpose.

The fourth section subjects certain officers of the corporation to-liability to an action for damages at the hands of any judgment creditors who should have been unjustly delayed in the payment of their demands, or should not have been paid in the due and regular order in which the same were entitled to be paid, or by reason of any unjust preference to other persons.

The one hundred and twenty-fourth section of Act No. 164 of 1856 referred to in the act of 1870 reads as follows:

The Common Council shall once in every twelve months, before fixing and deciding upon the amount of taxes to be assessed for the coming year, cause to be made out a detailed estimate exhibiting the various items of liability and expenditure, including the requisite amount for contingent expenses during said year; and shall cause the same to be published for, at least, ten days in the official journal of the city, and such rate of taxation not exceeding one dollar and fifty cents on one hundred dollars of valuation shall thereafter be fixed and assessed as together with other revenues of the city may be necessary to meet said estimated liabilities and expenditures. The adoption of said detailed estimate shall be considered as the appropriation of the amount therein stated for the purposes therein stated and no money shall be drawn from the city treasury except the same shall have been previously appropriated for the purpose for which it was drawn.”

Relator referred the court to State ex rel. Carondelet Canal and Navigation Co. vs. Mayor and City, 30 An. 130, in which it was declared that the duty of the city to make provision for the payment of judgments was discretionery neither as to time or manner — that the law required imperatively that it should be in the next annual budget •and by setting apart — appropriating a sufficient amount out of the annual revenues — that the duty of the Mayor and administrators was plain and the rights of relator absolute.

The decision in question and the law upon which it was based must be read at the present time in connection with legislation as it now exists upon the powers of municipal corporations to create obligations, the extent of the obligations so to be 'created, the instruments by which they are to be evidenced, the ways and means by which they are to be met, the time, place and manner of doing so and the remedies for their enforcement (Act No. 30 of 1877; Constitution of 1879, Act No. 38 of 1879). The present application bears a close resemblance to that made in the ease of State ex rel. Samory vs. City, 34 An. 469. In that case, as in this, the council adopted its budget after the alternative writ of mandamus had been served upon it. Of that particular feature of the case, the court said: “There was nothing in the judicial action had in the relator’s proceeding which, in any manner, restrained or controlled their action in the premises, or which could have authorized or excused them (the council) for postponing the performance of said functions (the adoption of the ■budget) beyond the time fixed by the law itself to await the determination of the claim asserted by him and denied by themselves.” The court, referring to the fact that the budget had been in fact adopted when its judgment was rendered, stated that, under the law of 1879 (No. 38), appropriations made therein were prohibited from being subsequently diverted from the object of the appropriation, and it was at a loss to see where the judiciary derived authority to compel the council to violate this plain provision of the law; that it was a fundamental principle of the law of mandamus that a writ would never be granted in cases where, if issued, it would prove unavailing (High on Extraordinary Remedies; par. 14, and authorities there cited) ; that in the case before it matters were in that situation. It said: “ However clear may have been relator’s right to have had an appropriation made for his demand, and however clear the duty of respondent to have made it, the fact remains that the appropriation was not made. This fact alone would not, perhaps, have been sufficient to defeat his right by mandamus to compel the city authorities to do out of season that which, after proper demand and putting in default, they had failed to do in season. But it is supplemented by the additional fact that the entire revenues have been actually appropriated to other purposes.” The court then showed that the granting by it of the mandamus asked would carry with it, unavoidably, the disturbance of the rights and claims of third parties not before it, and this result was one which should not be permitted through a mandamus. How, asked the court, would the corporation execute the mandamus, if maintained? What appropriation shall they annul or reduce, in order to provide for relator’s demand? The mandamus does not specify. Suppose they should decide for example to provide for it out of the appropriation made for the payment of “ judgments.” Would not the judgment creditors, entitled to the benefit of that appropriation, have the right to enjoin them from so doing? If, on the other hand, they should determine to reduce all the appropriations ratably, that would only expose them to the same assaults by a multitude instead of by a few interested parties. If it be said they may provide for it out' of appropriations for city expenses, the reply is first, that they are not ordered to do so, and under the law, appropriations for those purposes are as inviolable as any others. Secondly, that no doubt upon those funds as well as others, employees have acquired rights; thirdly, that these appropriations may be essential to the alimony or support of the city. We are not concerned with the question of the inadequacy of other legal remedies for the enforcement of relator’s rights. That is a reason for the exercise of the remedy of mandamus when that remedy is otherwise adequate and appropriate. But we hold that in such a matter as that now under discussion mandamus is not, under any cireum-stances, an adequate, appropriate or even legal remedy, and we wish it distinctly understood that we decide nothing else.” The same questions asked and answered by the court in the Samory case may be asked and answered by us in the same way. In the case of State ex rel. Folsom Bros. vs. Mayor and Administrators, 32 An. 713, the court said: The first thing that attracts judicial cognizance on the very face of the record is that any decree rendered by us herein * * * must be prospective only. The past is beyond recall and beyond remedy.”

Relator does not claim that he occupies a position that entitles him to an order for the levying of an additional tax to pay him. What he seeks to do is to take the situation just as it is, and through the court to control, in manner, form and for purposes, other than those fixed! by the council itself, the funds to be received in the year 1897 under the budget as made. We are bound to assume, as matters stand, that the Oity Council has gone over the whole ground, and made such disposition of the funds which will accrue to the corporation during the present year as its needs will require, and that if it has failed to make provision for purposes other than it has, it is because, under the constitutional restriction upon its powers, it is not in a condition at present to do so. [Saloy vs. City, 33 An. 83.]

The city has not the same freedom of action it had prior to the Constitution of 1879. We find no allegation in relator’s petition that the financial condition of the city for the year 1897 was such as would have justified the council in making the budget other than it was. There is no attack upon any of its items in the pleadings, and we can not ex proprio molu examine into them. It is not pretended that the authorities have announced an intention of not providing in the future for the payments of judgments, as required by law and in manner as required- when the situation becomes such as to warrant action in that direction. Relator does not look or seek, as did De Leon in State ex rel. De Leon vs. City, 34 An. 477, for the budgeting of his claim on a future budget. He seeks to have us undo what is an accomplished fact, and to collaterally attack what has already been done.

But there is another serious obstacle in the way of relator’s relief. He asks that the court order the council to make provision in the budget for the payment of his two judgments, and he cites in support of his demand Act No. 5 of 1877 (extra session) and State ex rel. Carondelet Co. vs. Mayor and Council of New Orleans, 30 An. 130.

Relator’s prayer in the latter case was: “that the council be-compelled to place the judgment rendered in its favor on the 27th. June, 1871, and all judgments rendered previous to its registry, on the next annual budget, and to provide for the payment of all said judgments in the order in which they are registered, through and by means-of all taxes imposed, collected or held for city current expenses not levied or collected, in pursuance of law, for some other specific purpose.”

The demand of the present relator is essentially different from that. Singling out his own judgments he asks, without any pretence that they stand first in the order of registry, that we compel the city authorities to budget specially for them.

A party seeking to have public officers ordered by mandamus to perform duties imposed upon them by a certain specified law, must keep inside of the terms of the law and not travel beyond it. We would not feel justified, under any circumstances, in compelling the performance of any act which would lead up to the payment of judgments out of the order in which the law has declared that they should be paid. The city officers should not be placed by order of court in a situation which would render them liable to. an action for damages if they had placed themselves in that situation of their own motion.

We express no opinion as to the scope of the rights which the relator may be entitled to as holder of the judgments on which he declares whether, by virtue of the pleadings in the cases on which they were rendered and the terms of the judgments themselves he-be entitled as a “general creditor” to be paid out of any and all funds which may be found available for the payment of debts ” of the corporation, or whether he be restricted to some special fund or funds. This matter is somewhat discussed in State ex rel. Gas Light Co. vs. City, 37 An. 440.

For the reasons herein assigned it is ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed; and it is now ordered, adjudged and decreed that relator’s application for a mandamus be and the same is hereby dismissed under reservation of any legal rights which he may have as holder and owner of the judgments on which he declared herein.


text:
    No. 12,454.
    State of Louisiana vs. Walter Daniels.
    There is no law requiring that the residence of a party charged with crime should he stated in the indictment. The crime was charged to have been committed in the parish of Vernon. There was no necessity for the indictment to mention the title of the court within whose jurisdiction it occurred. [State vs. Kennedy, 8 Rob. 599.]
    It is conceded that the record was not marked “ mlb» ” by the clerk: until February 27, when it was so marked “nunc pro tunc” as of the 5th of February by order of the court. The verdict of the jury had at that time been returned.

      Held: The do.cument and papers being actually in court and the cause docketed, the failure of the clerk to mark them “ Filed ” was amere omission, susceptible of correction, as it was “mmc pro tunc” by order of court. State vs. Alvarez, 7 An. 284; State vs. Hall, 44 An. 976; State vs. Brown, 35 An. 342.
    In preparing a record as provided by Secs. 1021 and 1026, R. S., when a change of venue has been ordered, there is no occasion for the clerk transferring, to certify to the original documents sent up. Wood vs. Howell, 14 An. 62; State vs. Brown, 35 An. 342.
    The fact that the seal used by the district clerk did not conform in all respects to the design fixed by the statute for clerks of court was not a material fact in the present case. [Atchison Oo. vs. Whitbeck, 48 Pac. 19; Wood vs. Howell, 14 An. 62.]
    The jurisdiction of the court was not affected thereby.
    Where accused having applied for a continuance by reason of the absence of witnesses, the court refused the same on the ground that the District Attox*ney had admitted that certUin of the parties named would, If present, testify to the facts tHiich accused declared they would testify to, it is no ground of complaint that the admission was notforcedly made to cover all the parties named, but was limited to the particular persons whose absence could have been made a legal basis for the continuance. The admission was properly refused to be made to cover witnesses for whom no summons had been issued, and applied for, or those who could not be found under the circumstances shown by the returns made.
    It is no ground for rejecting the testimony of a witness that he should have failed to catch one of the replies made by the deceased to the accused in the course of a discussion or dispute between them. Assuming that deceased made use of some opprobrious epithet, that fact alone would not have warranted accused in shooting him.
    APPEAL from the Ninth Judicial District Court for the Parish of Sabine. Hall, J.

      M. J. Cunningham, Attorney General, and J. B. Lee, District Attorney (Amos L. Ponder, of Counsel), for Plaintiff, Appellee.

      H. T. Liverman, Don E. SoBelle and L. L. Roe for Defendant, Appellant.
    Submitted on briefs April 3, 1897.
    Opinion handed down April 12, 1897.
   The opinion of the court was delivered by

Nicholls, C. J.

Defendant was indicted in the parish of Yernon for murder. He applied for and obtained a change of venue, and the cause was transferred for trial to the parish of Sabine. It was there tried. The jury returned a verdict of “ Guilty without capital punishment.” He was sentenced to hard labor in the penitentiary for life, and he appealed.

On Tuesday, the 16th of February, 1897, the second day of the Sabine parish term of court, the case of the State of Louisiana vs. Daniel was fixed for trial for the 23d of the month. On that day defendant, through his counsel, suggesting to the court that the transcript of papers sent up from the parish of Vernon to the parish of Sabine, on a change of venue, was not a complete transcript of proceedings and did not contain ail of the papers filed in the said ease in the Twelfth Judicial District Court for the parish of Yernon (sugg sting certain designated papers as not included therein, which he declared to be material, among the same three certain bills of exception which he alleged he had reserved to rulings of the District Court, and which had been signed by the judge), moved and prayed,' that the clerk of the District Court of Vernon parish be ordered to complete the record by sending up the missing papers and that he be not placed on trial until said record was so completed.

In the body of the motion, after setting forth the absence from the record of certain papers, he alleged that “the proceedings of this case in the parish of Yernon as sent to this court (Sabine) are not properly attested, and that the irregularities complained of would work a hardship to defendant in this case, as there were various matters and pleas that should be filed' in his case in this court (Sabine) in order that justice might be done him, and which could not be filed until all of the papers and proceedings in said case were before this court.”

The court upon this motion ordered the district clerk of Vernon to complete the record in the particulars complained of, directing that he send up “ certified copies of all bills of exception, if any, that are not already in here.” The trial was postponed and the case reassigned for the 26th.

On that day the clerk of Vernon presented what was claimed to be the complete record of the case. The clerk certified that “he had carefully searched for the alleged bills of exceptions asked for and had been unable to find them; that he had no knowledge that the same ever existed.”

Defendant thereupon suggesting that the three bills of exceptions already referred to were still missing, also certain newly mentioned papers, and that the transcript was still incomplete, and suggesting that the certificate of the clerk of the court of Vernon to the correctness of the copy of the minutes of the court of Vernon and his certificate to that of the entire record were not sufficient, or such as the court could recognize, in that they were not sealed in such a manner or with such a seal as the law requires the clerks of courts to use, prayed that the answer or return of the clerk be not accepted, that the rule remain in force, and that the trial be postponed until the order of court for the completion of the record was fully complied with.

This prayer the court refused to grant, and defendant reserved a bill. The court in overruling this motion stated that the clerk produced all of the record called for by the defendant on his rule to complete the record that was not already in it and overlooked by him when he filed his rule, except the three bills of exceptions * * * that the court was unable to say whether they were ever signed or not, but their substance had been stated to it, in the rule to complete the transcript and shown by testimony before it on the rule, and the whole matter was in such shape in the record that the Supreme Court would be sufficiently advised to pass upon the questions arising under the bills; it further stated that nothing could be gained by rejecting the answer of the clerk and ordering him to find the bills when he said he knew nothing of them.

It is further said that “the objection urged that the record was not properly attested was aimed at the form of the seal used by the clerk of Vernon in not having on it a pelican feeding its young; that that was the want of correctness urged; that the record and a copy of the orders were sent from Vernon, properly certified under the seal of the clerk of the District Oourt of Vernon, and no objection was made that the certificate was insufficient, or that it was not sealed, but only that the seal used was not such a one as the law requires. The seal was of the usual size and shape, and contained the words clerk of court and ex-officio recorder Vernon parish, La.; Also a small star. There was no other picture.”

It appears that counsel of the defendant had, in Vernon parish, insisted upon their right to have certain motions, which they had filed set for trial in the absence of their client then in jail in Rapides parish, but that this right was not conceded by the court, and the motions were postponed for trial until the accused should be present, and they were subsequently so tried. The bills of exception could have had no possible influence upon any proceedings to be had in the parish of Sabine. They could only be utilized for defendant in this court in the event of a judgment against him. We see enough of the •questions at issue to know that the action of the court, in respect to the matters complained of, could have worked no possible injury to the defendant. The court was unwilling to take the risk of trying the motions in the absence of the prisoner; tobe, possibly,afterward confronted by the claim that such a proceeding was totally illegal aDd unwarranted. He exercised proper discretion in so doing.

The court having determined that the trial should proceed, defendant moved for a continuance on the ground of the absence of witnesses. The continuance was refused, and defendant excepted.

In his bill he states that when the case was called up he answered he was not ready for trial, showing and stating that although his witnesses had been duly summoned and attachments had been issued for some of them on the 23d, they were still not present. That his grounds for continuance were stated in the motion for the same, which he annexed to the bill.

One of the grounds of complaint urged in the bill of exception was that the District Court, instead of requiring that the District Attorney should admit that all of the different witnesses named in his motion for a continuance would, if present, swear to the fact which defendant stated he expected to prove by them, had restricted the admission on the part of the District Attorney to the witnesses Hagan, Johnson, Duke and Foster.

The judge at the foot of the bill stated that “the three attachments mentioned in the motion were issued on the 23d, and had all been returned on the 26th not found ’ — one was for a person who had never been found or served with a summons — one was for a person whom the sheriff returned, had permanently left the State, and the third for a person who had fled the State to avoid arrest under a warrant issued before he was summoned — that there was no reasonable probability of procuring the attendance of either of them . by a continuance. That besides the absence of those particular persons defendant grounded his application for continuance on the absence of two witnesses in the parish of Avoyelles, for whom summons had been sent for service by the sheriff of that parish; also of two witnesses for whom summons had been sent to both Avoyelles and Rapides, for a witness for whom summons had been sent for service to the sheriff of Natchitoches and of another in Vernon parish; that in all those cases the sheriffs of the different parishes had made recurn that the parties named “could not be found.” That two of the parties named as witnesses, whose testimony was declared needed, and whose absence was made one of the grounds of continuance (Kirkley and Bratt), had not only not been summoned but no summons had been applied for. That as to the others named the court could see no reasonable probability of getting their presence by a continuance, aud from all the information it could get, as well as from the returns of the various sheriffs, the witnesses were not residents of the different parishes named, and they had no known residence. That the defendants had had ample time since the change of venue was granted (more than two months) to And the witnesses if they could be found; that three of the witnesses (Hagan, Foster and Johnson) had been summoned, and the summons for another (Duke) had not been returned, and the District Attorney was required to admit that each of them would swear, if present, to all the facts as stated in the affidavit for continuance; that, besides, the accused was not wholly without witnesses, by whom he could prove the same facts that he expected to prove by the absent witnesses. He made a witness of himself and testified to all the facts attending the killing, as well as the previous threats of deceased, substantially as he claimed that the absent witnesses would swear. He also had the testimony by the District Attorney’s admission of Johnson and Hagan, alleged eye-witnesses to the killing, whose testimony is substanially the same as that of Frazier, Gallagher, Farris, Kirkley and Bratt, as shown by the affidavit for continuance. He also had the testimony of Duke under the District Attorney’s admissions as to the previous threats, so that he had his own testimony and that of the witnesses Johnson, Hagan and Duke to prove the-same facts that he expected to prove by the other absent witnesses. That the accused had stated in his affidavit for continuance that he anticipated that the State would attempt to show that he had made threats against the deceased, and he expected to disprove that fact by the absent witnesses Sanders, Sercy, Carson and MulligaD, but that the State did not offer any such evidence as had been anticipated would be given on that point, and, therefore, the rebuttal testimony was not needed. That the allegation in the motion made for continuance that the absent witnesses were deterred from attendance-by fear or intimidation, the court was satisfied was not the case; that there was no reason to suppose that any witness would be afraid to-attend and testify at Many, in Sabine parish, a point then reached by rail.”

On the trial of the case one J. C. Stanley, being on the stand as a witness for the State, testified that he was standing a few feet from the parties at the time of the killing, and heard the defendant say to the deceased, “You and your partners had 39% ties each. Craft (the deceased) then made some reply which witness did not hear, and to which reply of Craft’s the defendant responded by calling-the deceased (Craft) a damned liar, to which Craft, the deceased, said, Same back to you, partner,’ when defendant drew his pistol and shot Craft dead.” Defendant objected to this testimony on the ground th’at the witness did not hear all that passed between the-parties, and detached parts of a conversation’were not admissible to go to the jury. The court overruled the objection. At the foot of the bill of exception reserved to the ruling, the District Judge states that “ the objection was based on the fact that the witness did not hear Craft’s reply to the remark of the defendant about the number of ties. They were disputing about the number of ties when-the damned lie was passed by defendant and returned by deceased, and the fatal shot was fired. It was not pretended that there was anything in the reply of Craft (which the witness did not hear) that in any manner tended to justify or excuse the killing. The witness, when on the stand, was asked: “What was Craft’s reply!” and said: “He just kept on disputing.” The court held “ that because a witness to a homicide could not detail all that occurred at a homi•cide (was not a reason) he could not tell all that he had seen and heard."

Defendant moved for a new trial, contending that the verdict was contrary to the law and the evidence; that the supposed crime for which he was tried and convicted was supposedly committed in the parish of Vernon, in the Twelfth Judicial District; that said case known as the State of Louisiana vs. No. 303, was on a change of venue transferred from the parish of Vernon to the parish of Sabine in the Ninth Judicial District. That on the trial of said case in the parish of Sabine, the prosecution failed to offer in evidence the proceedings had in the case in "the parish of Vernon, nor had the same ever been endorsed or filed by the clerk of the court of thp parish of Sabine. That by said failure so to do and the absence of «aid material testimony (not even showing the order by authority of which the change of venue had been granted and the trial was being had in the parish of Sabine), there was a trial and conviction before a court without jurisdiction and without a finding of a grand jury, which was both contrary to law and to justice and defendant had been thereby greatly injured. That the alleged indictment in the case was vague, uncertain and totally defective; that it did not show in what Judicial District the.said alleged crime was committed; did not allege the residence of the accused, and but vaguely, if at all, set out the parish in'which the crime was supposed to have been committed.

The court overruled the motion and defendant reserved a bill. The judge assigned the following as his reasons for not granting a new trial: “First — The verdict was fully supported by the law and the evidence. Second — It was urged that the District Attorney failed to offer in evidence the proceedings in Vernon parish. This was unnecessary. It would have been confusing and prejudicial to have offered and had read in evidence the proceedings had in Vernon parish, including motions to quash the venire and the indictment, and for change of venue and the evidence taken thereon. The indictment was read by the clerk of court to the jury and the case was presented to them in the usual way, the clerk sayiug to the jury that the prisoner had on his arraignment pleaded not guilty and put himself upon his country for trial, etc. The court can see no useful purpose to be subserved by offering in evidence all of the proceedings had in Vernon and having them read to the jury. The case of State vs. Brown, 33 An. 1151, is not in point. The court in that case only decided that the record from the original parish must be under seal. It is true the court said: ‘It however became necessary to offer the record in evidence and objection was made that it had no seal and this objection was properly overruled,’ etc.

“It was perhaps on some motion that it became necessary to offer the record or some exceptional circumstance. There is no broad declaration that it was necessary to offer the receipt in evidence. The language of the court would imply it was exceptional. ‘ It however became necessary,’ etc. I think the law is well stated in State vs. Alvarez, 7 An. 284.”

It was urged, thirdly, that “that record was not endorsed and filed by the clerk of Sabine parish. After the verdict was received, and before the motion for new trial was filed, the omission of the clerk to mark the record ‘ filed ’ was noticed by the court, and the District Attorney filed a motion to have the same filed nunc pro tunc February 27 for February 6, 1897, and it was so ordered — the motion for new trial being filed at the same time.” [State vs. Alvarez, 7 An. 284; State vs. Hall, 44 An. 976].

It was urged, fourth, “that the record did not show order of court granting change of venue.’' The record does contain the order granting change of venue, also the minutes, showing the finding of the grand jury — this objection is, therefore, not supported by the facts.

It was urged, fifth, that “ the indictment is vague and indefinite and does not mention the number of the district or the residence of the defendant. This was unnecessary, and the indictment is sufficient. It is therefore overruled.”

The defendant moved in arrest of judgment, assigning for the same, the same grounds which he had set up in the motion for a new trial. The court overruled the motion, and defendant took a bill of exceptions. We find in the record a bill of exception, complaining of the action of the court in ordering the clerk of the Sabine court to file “ nunc pro tunc” the record sent up from Venon.

The bill recites that the defendant objected on the following grounds:

1. Said filing came too late, for the case had been tried and a verdict rendered.

2. That said record was not properly attested and had not a legal seal to same, and that some of the material papers of said record were not signed and attested by the clerk of the court of Vernon; nor was there any seal whatever on them — especially is this true of the evidence of one Craft on motion to quash the venire and the minutes of the court of the parish of Vernon,

The court overruled the objection, stating: “The court and District Attorney only discovered that the clerk of Sabine parish had neglected to mark the record sent from Vernon parish 'filed ’ after the verdict was received. The District Attorney then moved, and the court ordered the clerk of Sabine parish to file the papers ‘ nunc pro tune,’ February 27, 1897, for February 5, 1897. The court believes this was proper.” [State vs. Alvarez, 7 An. 284; State vs. Hall. 44 An. 976.]

“ The record was properly attested by the clerk thereof, under his seal. He did not put a separate certificate on each separate paper, but a certificate to the whole record, just as a clerk certifies a transcript from the District to the Supreme Court. The court believed that was sufficient. Besides, when counsel moved to complete the record before trial they made no suggestion that each paper should have a separate certificate and seal, but only objected to the form of the seal when asked in what respect they claimed that the record from Vernon was not properly attested.”

Independently of the complaints made and bills taken in the parish of Sabine, counsel of defendant call our attention in their brief to a bill reserved by them to the action of the District Court of Vernon in transferring the case to the parish of Sabine, instead of to the parish of Rapides. The District Court states in. the bill that “ defendant, in his application for a change of venue, did not ask directly for a change to Rapides parish — the motion asked directly for a change, irrespective of the. place whereto the case would be assigned; that Rapides was inconvenient both as to distance and delay, also as to expense; that Sabine parish was nearer, and offered earlier opportunity for trial of the accused.”

í¿ Defendant, in his motion for a change of venue, after reciting that he stood indicted in the parish of Vernon for the charge of murder (which case was then pending in the court for that parish), alleged reasons why he thought the cause should not be tried in Vernon, but should be removed to another parish. His prayer was that he be granted a change of venue to some other neighboring parish, as the law állows in sueb cases; that for the reasons assigned in bis petition, preference be given in favor of the parish of Rapides. The reasons assigned were simply that a transfer to that parish would be more convenient and less expensive than to any other parish. It was elicited on the trial of the motion as a fact that the sheriff of Sabine was a distant relative of Graft, the party killed by the accused, but it was stated that he was absolutely fair on ail trials, and discharged his duty strictly. See. 1023 of the Revised Statutes declares that “if (on an application for a change of venue) the judge be of opinion that the accused can not have a fair and impartial trial in the parish where the indictment is pending, he shall award a change of venue to the adjoining parish of the same judicial district, or of an adjoining district, and, if possible, to that in which a District Court shall be next held.”

No fact has been shown to us tending in the least to show that the judge’s action in the premises was other than legal and judicious.

The averments made in defendant’s motion for a continuance indicate clearly that the people of Sabine stand impartial toward him. It was not pretended that any act had been or was likely to be done by the sheriff of Sabine to the prejudice of the defendant, nor is there, at this time, any suggestion of wrong-doing by him. Had there been any reason to suspect such action at the hands of the sheriff an easy remedy was at band. We think the case was properly sent to Sabine parish.

The motion in arrest was correctly overruled. There is no law requiring that the residence of a party charged with crime should be stated in the indictment. The crime was charged to have been committed in the parish of Vernon; there was no necessity for the indictment fo mention the title of the court within whose jurisdiction it occurred.

As stated in State vs. Kennedy, 8 Rob. 599, “when an indictment sets forth the parish or venue where the offence has been committed the law fixes the only court which has jurisdiction of it. The same court before which the indictment was found must try it (unless there should be granted a change of venue), hence there is no necessity for a caption to the indictment in this State. The court, which has itself taken the indictment, can not desire to be informed by what authority it was acting, nor can it desire a formal statement of proceedings, all of which have passed under its own eye and form a part of its own record.” We see no ground upon which the jurisdiction of the Sabine court could be called in question other than upon a claim that its jurisdiction rested upon the fact that the proceedings from Vernon should have been legally placed before that court, and that that was not done. To that matter we shall hereafter refer. We think the court which tried the case had jurisdiction over it.

Defendant’s contention that a new trial should have been accorded for the reason that the State did not offer in evidence the proceedings had in the cause in Vernon prior to its transfer to Sabine is not well founded. We are not advised as to the particular purpose for which it is claimed those proceedings were necessary to be placed before the jury as evidence. We ascertain from the record that defendant was formally arraigned and pleaded in Sabine parish; that the indictment was read to the jury, and matters proceeded there as they would have done in Vernon had there been no change of venue. The recital of the arraignment of accused in Vernon parish, as it appears in the record, is in questionable form. We are not positive that the entry to that effect in the transcript was taken from the minutes, but the original application for a change of venue made “ at chambers ” is in the record, and the fact of defendant’s arraignment in Vernon is expressly stated by defendant in one of his bills of exception. We think the arraignment was sufficiently shown (Revised Statutes, Sec. 1031).

The jury in Sabine was simply charged with ascertaining and declaring whether the accused was guilty or not guilty under the charge made. If from any reason the cause itself was not legally submitted to them, correction and remedy would come from a quarter other than the jury.

The declaration made in the application for a new trial that the ■case was before a court without jurisdiction and without the finding of a grand jury was evidently based upon the claim that the proceedings from Vernon had not (for several reasons) been legally placed before the Sabine court — (1) because they were not “filed” until after verdict; (2) because the proceedings, if they had been filed, were not authenticated in such a way as to justify their being considered. It is conceded that the record was not marked “ filed ” by the clerk until the 27th of February, 1897, when it was so marked “ nune pro tune ” as of the 5th of February by order of the court. The verdict of the jury had at that time been returned. It is not and can not be claimed that, as a matter of fact, a part at least of the papers and proceedings were not in the Sabine court on the 15th of Februáry, 1897, for we find the case docketed of that day, and defendant’s counsel then moving to have the transcript, which had been forwarded “completed,” with specification as to certain missing papers which he called for. The indictment which had been found against defendant, and the motion for a change of venue with its endorsements, was not among such missing papers. It is clear-that a portion of the proceedings had been, in fact, deposited with the clerk of Sabine parish, and treated (unless the claim made that they had not been properly attested could be sustained) as properly before the court. It is also cleai' that an additional transcript had been forwarded by the clerk of Vernon to that of Sabine, and that it was in the hands of the latter on the 26th day of February, for counsel of defendant referred to the same in the motion he made of that date in which he complained that the record forwarded was- “ still incomplete,” and in which he again specified certain documents as missing. The documents and papers being actually in-court, the failure of the clerk to mark them “filed” was a mere omission, susceptible of correction, as it was “ nunc pro tunc ” by order of court. [State vs. Alvarez, 7 An. 284; State vs. Hall, 44 An. 976.]

The proposition of defendant that the mere order of the court to-transfer the cause to Vernon did not “ ipso facto ” vest jurisdiction in the Sabine court, and that the latter did not acquire jurisdiction until the record was filed with it in order that there should be some-, thing actually before the latter on which it could be called to act, might be granted without affecting this case, for the mere failure to mark the papers as filed did not break the force of the fact that they had been actually deposited in the hands of the proper custodian of the court records, and that the cause had been docketed. [State vs. Brown, 35 An. 342.] Defendant says, however, that the record sent up was not properly attested ” and therefore the deposit of the same with the clerk was as if not made.

Sections 1021 and 1026 of the Revised Statutes declare that whenever a change of venue shall have been awarded in a criminal case it shall be the duty of the clerk of court, in which the case is pending-to make out a descriptive list of the indictment, pleas and all other--documents relating to such cause and a copy of all orders which may have been entered on the minutes of the court, and to deliver the same, together with the original indictment and other papers appertaining to the cause, to the sheriff of the parish, whose duty it shall be immediately to deliver or forward the s ame to the clerk of the parish to which the cause shall have been re moved, and the clerk of the court to which any criminal cause shall be thus removed shall, on the receipt of the indictment and other papers, enter the cause upon the criminal docket of his court, and it shall be heard, tried and determined by preference in the same manner as if the proceedings had originally been instituted therein. There certainly was no occasion for the clerk of Vernon to certify to the original documents sent up. [Wood vs. Harrell, 14 An. 62; State vs. Brown, 35 An. 342.]

The endorsements thereon of filiDg by the clerk of that parish sufficiently authenticated them. The signature of the clerk of Vernon as a State officer was known to that of Sabine and to the judge of that court. We do not regard the fact that the seal used by the district clerk of Vernon should not have conformed in all respects to the design fixed by the statute for clerks of court, a material fact in this case. It certainly did not affect the jurisdiction of the Sabine court. [Wood vs. Harrell, 14 An. 62; Atchison Co. vs. Whitbeck, 48 Pac. 19]. It is not suggested that the signature attached to the record is not genuine, nor is it suggested that the record forwarded is not strictly correct. The District Judge of Sabine had enongh before him to properly satisfy him that the prosecution brought to his court rested on a legal basis, and that it could legally be proceeded with therein (State vs. Kennedy, 8 Rob. 598), and so have we.

We have examined the grounds assigned fora continuance, and the reasons assigned by the court for refusing it, and we can not say that the court abused its discretion. The summons issued for the different witnesses and the returns of the various sheriffs thereon are not in the record, and we are not in a position to know whether those officers exercised proper diligence or not. The District Judge evidently considered defendant’s complaint against them as not sustained. Defendant complains that the court in overruling the motion for the continuance should have confined the admission, which it required the District Attorney to make (that if the absent witnesses were present they would testify to the facts which accused declared they would testify to), to certain named witnesses. He contends that the admission should have been made to cover all the witnesses named in the motion. The judge does not assign his reason for making the distinction he did between the witnesses, but the facts stated by him show that those not required to be included in ,the admission were those for whom no summons had been applied and issued, and those whom the returns showed could not be found and served. The District Attorney was forced to make an admission as to the witnesses named who had been found and served, and those the summons for whom had not yet been returned. The theory of this action was evidently that the absence of the latter might form a possible basis for a continuance, while that of the former could have no legal force or bearing whatever on the question; that a contrary rule would enable the applicant for a continuance (by simply inserting in his motion names of fictitious witnesses Or persons whom the sheriff could not serve, and forcing an admission that those parties, if present, would testify to what accused declared they would do) to present a formidable array of evidence for which there was in reality no foundation whatever. We see no error in the court’s action. The contention of the defendant that the testimony of the witness Stanley should not have been received for the reason that he could not state what reply the deceased Graft made to a remark made to him by the accused just before the killing, was not well grounded. Witnesses to a particular transaction can only testify to that portion of it which they see and hear; their testimony as to that can not be excluded because something might have happened or been said which escaped their attention or notice. It is good as far as it goes. The whole transaction is to be brought out by different witnesses hearing and seeing it in its different phases. It is not apparent to us that a knowledge by the jury of the reply which Graft made to the accused would have influenced the situation in favor of the latter, for assuming that Graft had made use of some opprobrious epithet, it would not have justified defendant in shooting him. We find no legal ground for setting aside the verdict and judgment. They are hereby affirmed.