author: Watkins, J. Blanchard, J.

text:
    No. 12,990.
    State ex rel R. F. & J. C. Broussard vs. Hon. Felix Voorhies, Judge Nineteenth Judicial District Court.
    Syllabus.
    Article 126 oí the Constitution of 1898 only confers appellate jurisdiction on-District Courts from judgments of justices of the peace in criminal matters.
    Possessing no appellate jurisdiction over judgments of a justice of the peace for the amount of one dollar or less, a district judge is without constitutional warrant to place an interpretation thereon inconsistent with the-plain terms and tenor thereof.
    On Rehearing.
    1. Article 111 of the Constitution of 1898 provides that judgments in civil causes are appealable from Magistrate’s Courts to the District Courts without regard to the amount in dispute.
    2. Bnt judgments rendered by justices of the peace more than twelve months prior to the adoption of that Constitution are not affected by the provisions of that article, not even where such judgments are involved, or sought to be-affected, -in proceedings for prohibition and certiorari applied for in the District Court since the adoption of the Constitution of 1898.
    3. A district judge may issue writs of certiorm-i to justices of the peace only in aid of his appellate jurisdiction, and he transcends his authority when in a case in which he has no appellate jurisdiction he interprets the judgment therein rendered to mean that a certain one of the defendants is not liable-under the judgment.
    ^~^N APPLICATION for Writs of Certiorari and Prohibition.

      Foster & Broussard and J. L. Haase, for Relators.
    Respondent Judge pro se.

    Submitted on brief December 5, 1898.
    Opinion handed down December 19, 1898.

      Rehearing granted January 9, 1899.
    Submitted on Rehearing January 14, 1899.
    Opinion handed down on Rehearing February 20, 1899.
   The opinion of the court was delivered by

Watkins, J.

This controversy grows out of the proceeding in the .respondent’s court, entitled State ex rel. Gonsoulin vs. J. A. Babin, Justice of the Peace et al — the complaint of relators in this proceeding being that respondent therein, in effect, annulled and reversed judgments of said justice, of which he possessed neither supervisory nor appellate jurisdiction, and in violation of their rights as plaintiffs and appellees in respondent’s court.

The history of this litigation is fully related in State ex rel Babin vs. Voorhies, Judge, 49th Ann. 1717.

It appears from our opinion in that case, that relators herein instituted suit and obtained judgment against the relator, (in State ex rel Gonsoulin vs. Babin, Justice), for the sum of seventy-six dollars, which was appealed to the court of the respondent, in this proceeding; and that said respondent first rendered a judgment reversing that appealed from at plaintiff’s costs and remanding same for execution, and thereafter so amending said decree as to allow plaintiffs therein, relators here, to make the cane-growers parties to the suit, contradictorily, with whom the proceedings were to be carried on — this decree •closing with the phrase, viz.: “the court, therefore, grants the new trial for the purpose of remanding the cause to the lower court for further proceedings.”

■ It further appears therefrom, that, on the return of said cause to the justice court, the plaintiffs therein,' relators here, voluntarily discontinued same by entering non-suit, and immediately thereafter instituted one hundred and forty-three suits before the same justice of the peace, in each of which one of the cane-growers, and the original defendant, Gonsoulin, were made co-defendants in solido — the said cane-growers being the same persons who are referred to in the respondent’s aforesaid decree.

That, in each one of those suits, the amount in controversy was below the lower limit of the respondent’s appellate jurisdiction; and in each of same an absolute judgment was rendered by said justice of the peace for the amounts respectively demanded against both defendants in solido, and for costs.

That, at this stage of the proceedings, Gonsoulin applied to the respondent judge herein, in the case entitled State ex rel Gonsoulin vs. Babin, Justice, for writs of certiorari and prohibition, upon the allegation that the respondent, Babin, Justice, had rendered the aforesaid one hundred and forty-three judgments in direct disregard and violation of his own decree remanding the cause as aforesaid — alleging that he had enjoined the execution of the judgments in said suits in said justice court, and that his injunction had been dissolved.

That, at this stage of the proceedings, relator, Babin, applied to this court for certiorari and prohibition, on the ground, that the respondent’s court was without jurisdiction to entertain Gonsoulin’s application, because ho had no appellate jurisdiction of the suits and judgments he complained of.

It further appears from our aforesaid opinion, that we held as follows, viz.:

“The District Court, having tho power to supervise its own judgments,, and tho ease of R. F. and J. C. Broussard vs. Adrien Gonsoulin, having been before it, and a judgment therein rendered, we think it was within the competency of that court on tho application to it of the defendant, Gonsoulin, declaring1 that the judgment in question was being1 executed in a manner different from its terms, or, that it was being actively violated by the justice court wherein it originated, and to which it was remanded, to order the justice of the peace to send up his records for examination, with a view of ascertaining what the legal situation was, to the end that such action should be taken as the law and facts of tho ease authorized, and that it was the duty of the justice to comply with that order.

“Whether the District Court would be justified or warranted, after examination, in making writs of certiorari, or prohibition, which it caused to issue to the justice, peremptory in a particular case, is a different question from whether it had jurisdiction to simply malee inquiry through such writs into the subject matters complained of. Jurisdiction is the power to judge — it includes the power to judge wrongly a's well as rightly.

“We do not think relator warranted in asking relief at our hands in the present situation of affairs.

“The District Court having power to send writs of certiorari and prohibition to justices of the peace in a certain class of eases, when its jurisdiction to that end has been invoked in a particular case, as being one of that character, they are entitled to issue tentative writs and to primarily determine whether that jurisdiction legally extends to the ultimate affording of the relief asked. Relator had a right to raise-the issue he did, as to the power of the District Court, and to have-that court pass on that exception; hut none the less he should have-produced and submitted his records as ordered, and made his return or answer and enabled the issues raised to.be determined.

“Should the (judge) reach an illegal conclusion as to his powers and duties in the particular case, it will be time enough to have recourse to this court. State ex reí Kirsch vs. Judge, 45th Ann. 1206.”

In pursuance of the foregoing instructions, and very careful and guarded interpretation of the law, the respondent herein proceeded with the trial and determination of the aforesaid cause in his court,, entitled State ex rel Gonsoulin vs. J. A. Babin, Justice of the Peace; and it is of his finding and judgment in that case, that the relators, as plaintiffs and appellees in the sundry cases on appeal in his court,, make complaint and demand relief at tho hands of this court.

They make extracts from the respondent’s decree, and broadly allege “that in rendering said judgment, tho district judge is in flagrant violation of tho law and constitution of the State; and, after admission on his part, that he could entertain no jurisdiction under proceedure for writs of certiorari and prohibition, except in aid of his-appellate jurisdiction, reversed the judgments of the justice of the peace, and, at the same time, dissolved his own writs primarily issued.”

The portion of the judgment of which the relators complain is as-follows, viz.:

“A careful examination of the books of the (respondent) shows that the court has made a serious mistake concerning the judgments rendered by (him) in tho 143 cases of R. F. Broussard ei als. vs. Adrien Gonsoulin, the relator, and others. In its former decree, the court stated, that only two of these cases had been finally adjudicated' upon, and that in the 141 remaining cases, new trials had been granted. * * * This was an error. In all those cases, the new trials have been refused, and as a sequence the original judgments rendered remain unaltered.

“A judgment rendered is revised or amended by the granting of anew trial. The refusal to grant a new trial leaves the judgment rendered unchanged. C. P. 557; 563.

'“It follows from this; that there is no personal judgment against the -.relator (Gonsoulin) except for the two per cent, retained by him for .his co-defendants against whom only there is an absolute judgment, .with costs.

“It follows again from this, that the (respondent) has complied with . the order of this court by relieving relator, (Gonsoulin) of all personal liability in this matter, and that there is no necessity for the writs . of certiorari sued out in this case.” (Our italics).

Particular attention is directed to the italicized portions of the .'judgment.

On this point, the statement of the relators Broussard, is as follows, '.viz.:

“That your relators, availing themselves of the law, the said case -was dismissed by them in the justice court, and new suits instituted, . after the costs (of the first suit) had been paid, against Adrien Gon- . soulin, and the said 143 cane-growers, each for the sum due by them .under said contract.

“That before the trial of the said cases, the said Adrien Gonsoulin, :and each of said cane-growers, appeared in court and filed a general ■ denial. That upon trial had, judgment was rendered against each ■of the said cane-growers, and the said Adrien Gonsoulin in solido, and •in favor of your relator in each and every one of said 143 suits.

“That in none of said cases was there an amount involved sufficient . in law to authorize an appeal to the District Court.

“That, after judgment had (been obtained) by your relators in said 143 suits, the said Adrien Gonsoulin appealed each and every one of them to the District Court.

■*#***•##***«#

“That when attempt was made by relators to execute said judgments, resort was had by said Adrien Gonsoulin to the District Court -through writs of certiorari and prohibition, etc.”

On this state of the record, relators complain of the respondent’s decree, that, notwithstanding he has no appellate jurisdiction of any ■ one of said 143 judgments, and for that reason no jurisdiction to r alter, amend, revise, or change any one of them in the slightest partic-ular, he has, under the pretext of interpreting them, actually annihilated them all, altogether, by holding that they do not adjudge Gon- ■ soulin personally to pay said sums and costs, whereas the judgments -themselves show an exactly contrary state of facts.

In the case of State ex rel Babin, justice of the peace, vs. Voorhies, Judge, 49th Ann. 1717 — from which we have made extracts — the position was taken and response made, that the respondent possessed appellate jurisdiction of the original ease of relators against Gonsoulin; .and that in the exercise of that appellate jurisdiction, he had reversed the personal judgment which had been rendered in the justice ■court, and remanded same to the said court with instructions to make •the 143 cane-growers parties thereto.

In the case of State ex rel Gonsoulin, vs. Babin, justice of the peace, in respondent’s court, relator’s complaint proceeded on the 'theory that, in point of fact, the one hundred and forty-three judgments which had been rendered against him were the same as the •original judgment.

But, from the foregoing extracts from the decree of the respondent in that ease, it clearly appears that he abandons that theory altogether, .and, admitting that the original suit had been discontinued in the .justice court, and 143 distinct and different suits had been instituted therein, in its stead, and that separate and unappealable judgments had been therein rendered and appealed to his court, he places his .judgment exclusively upon an interpretation of said decrees; and finding that same are not personal judgments against Adrien Gonsoulin, .and, for that reason, in exact conformity with his decree in the ■original suit, he dismisses Gonsouhrís writ as unnecessary.

In order to see what is the form of those judgments, we transcribe ■one of them for the purposes of illustration, viz.:

“State of Louisiana | Third Ward

“Parish of Iberia, | Justice Court,

“R. F. Broussard, et al. vs. “Adrien Gonsoulin and Antoine Zepherine.

No. 231.

“For the reasons urged in the motion for new trial, the judgment rendered herein is hereby amended so that there be judgment against Adrian Gonsoulin and Antoine Zepherine in solido for sixty-one •cents, with'costs on both parties.

“For these reasons new trial refused.

“Thus done, read and signed this 3rd day of March, A. D., 1897.

“J. A. BABIN, J. P.

“March 3rd motion of appeal made and granted. Appeal bond fixed at $15.00.

“J. A. BABIN, J. P.” (Our italics).

An examination of all the other judgments shows that they are exactly identical with the one above quoted; and that they are rendered against the defendants, Adrien Gonsoulin, and another in solido, “with cost on both parties” — the amounts for which judgments are therein rendered varying from thirty-five cents to ninety-eight cents, the distributive or proportionate shares of the one hundred and forty-three cane-growers in the seventy-six dollars claimed.

To plainly indicate the precise status of these eases, we make the following extract from the opinion of the respondent as judge in the Gonsoulin case, viz:

“A careful examination of the books produced in court by the respondent (justice) discloses the fact that the 143 suits brought by “R. F. Broussard et al. are instituted against the identical parties “ who have been ordered by this court to be made parties in the case of “ R. F. Broussard et al. vs. Adrian Gonsoulin, No. 76 of the docket of “the inferior court, which case was remanded by this court to the “inferior court for that special purpose.

“It is also in evidence, that instead of protesting against the judge’s “ action in parcelling out the original case No. 76, into so many cases; “ and instead of interposing the plea of res adjudicata in so far as he “ was concerned, the relator filed a general denial and joined issue on “ the merits of each one of these cases.

“The amount involved in each one of these cases was not large “ enough under the Constitution of 1879, .to give appellate jurisdiction to this court; but * * * under the law as it is now (Const. “of 1898, Art. 126), the District Court has appellate jurisdiction of “these 141 cases.”

Hence, in the two judgments that the respondent herein rendered in the Gonsoulin case, he not only sought to destroy said 143 judgments in a proceeding to which the relators as plaintiffs were not made parties, by a judicial interpretation, as they allege, but he sought to shield said interpretation by the supposed appellate jurisdiction which the Constitution of 1898 had conferred upon justices of the peace; but the language employed in said judgments disprove the respondent’s decree to the effect that the justice of the peace had “relieved relator (Gonsoulin) of all personal liability,” and the article of the Constitution of 1898, on which he relies, has exclusive reference to criminal matters.

It is therefore clear (1) that possessing no appellate jurisdiction of said 143 judgments, he was wholly without power to annul or reverse them; and the terms of said judgments being plain and unmistakable, his interpretation of them must yield thereto.

Inasmuch, as the respondent herein has judicially admitted, that the original suit for $76.00 had been voluntarily discontinued by the relators, and the 143 suits substituted therefor, and that the defendant Gonsoulin had appeared therein and filed an answer and was conclusively bound thereby, the theory upon which we decided the ease of State ex rel. Babin vs. Voorhies, Judge, has been materially modified — same being that the relator Gonsoulin complained that the $76.00 judgment was being' executed in a manner different from its terms and therefore actively violated, when, in point of fact, same had been set aside, discontinued and altogether abandoned, and the 143 suits and judgments substituted therefor.

We declined to grant relator, Babin, relief at that time, and required him to comply with the judge’s order and send up his records “with a view of ascertaining' what was the legal situation, to the end that such action should be taken as the law and the facts of the case authorized, etc.”

We regarded the case presented as belonging “to that class or character of eases which justified the respondent therein to issue tentative writs, and to primarily determine whether his jurisdiction legally extended to the ultimately affording of the relief asked.”

But, having fully satisfied ourselves, that the respondent exceeded the bounds of his jurisdiction within the limits fixed (1) in assigning Article 126 of the Constitution of 1898 as the source of liis appellate jurisdiction; and (2) in placing an interpretation upon the Justice Court judgments that was wholly unwarranted by their terms, and beyond his constitutional warrant, we feel bound to declare his judgment illegal and void in so far as same may prejudice or affect the relators’ rights in any way, and to maintain and make peremptory the writs of certiorari and prohibition.

It is therefore ordered and decreed, that the preliminary writs of certiorari and prohibition be made peremptory at the cost of respondent.

Nicholls, C. J., absent.

On Rehearing.

Blanchard, J.

In the opinion hereinbefore handed down it was held that respondent judge exceeded his authority in making inquiry into the proceedings of the Magistrate’s Court culminating in final judgments in the 143 suits brought in that court by relators herein against Gonsoulin and others, for the reason that with respect to those cases the District' Court in and for the Parish of Iberia was not vested with appellate jurisdiction, and it was stated in that connection, that article 126 of the Constitution of 1898, which alone was ■cited by respondent as the source of his appellate jurisdiction, did not bear out his contention, since it only confers jurisdiction on District Courts from judgments of justices of the peace in criminal matters.

It was further held that respondent judge, in inquiring into the proceedings in the Magistrate’s Court, had placed an interpretation upon the judgments rendered there, in the cases mentioned, unwarranted by their terms and beyond his constitutional authority, and the decree of this court, operating through its writ of certiorari which had been invoked, declared the action of the respondent judge aforesaid illegal and void in so far as the same prejudiced or affected relators’ rights in and to the judgments rendered in their favor in the Magistrate’s Cc-urt, or fettered or hindered relators in the due execution of said judgments.

Accordingly, to this extent and for this purpose, the writs of certiorari and prohibition, which had issued nisi, were made permanent and peremptory at the cost of the respondent.

In his application for the rehearing which the court granted, he .urges that the opinion heretofore handed down misconstrues the .judgment he had rendered in the proceeding taken in his court on the .application of Adrien Gonsoulin for writs of certiorari and prohibition against J. A. Babin, justice of the peace, and gave to the said .judgment an effect and force not intended by him.

He insists that the only judgment rendered by him was a decree vacating the writ of certiorari sued out by Gonsoulin, and that this ■court, in its opinion, mistook part of the reasoning preceding his decree in the Gonsoulin case, for the decree, or part of the decree, itself, and, predicated on this error, has decided the instant case to his prejudice.

Ill this connection, his contention is that by vacating the writ of certiorari in the Gonsoulin case he left the justice of the peace free-to proceed according to law in the 143 original cases in which judgment had been rendered by said justice of the peace, and that this being so, he cannot see how it can be held he has prejudiced relatorsherein, or deprived them of any rights they may have under the Constitution and laws.

To determine these contentions of our brother of the District Court, it is necessary to ascertain just what he did decide in the Gonsoulin case, and whether, or not, he has interfered with the judgments in the 143 cases in the Magistrate’s Court, or hampered or impeded their execution in any way, and if so, to what extent.

If his determination of the Gonsoulin case affects those judgments, or their execution, then a proper case was presented to this court for-its supervisory control, for nothing is clearer than .that a District Judge may issue writs of certiorari to justices of the peace only in aid of their appellate jurisdiction. State ex rel. Hirsch vs. Judge, 39th La. Ann. 97; 37th La. Ann. 285.

Under the Constitution of 1879, cases where the amount claimed was ten dollars or under were not appealable from Magistrate’s-Courts to the District Courts, and in each of the 143 cases brought by relators herein in the Magistrate Court of Justice Babin againstGonsoulin and others, the amount was less than ten dollars.

Those cases rest upon the Constitution of 1879, for judgments in them all were rendered on March 3, 1897, while that Constitution was in force.

While the Constitution of 1898, Article 111, provides that all judgments in civil causes are appealable from Magistrate’s Courts to the District Courts without regard to the amount in dispute, that Constitution did not go into effect until May 12, 1898, or more than fourteen months after the rendition of the judgments in the 143 cases aforesaid.

It is clear, therefore, that the question whether or not respondent judge had appellate jurisdiction warranting him in an inquiry into-the proceedings in the Magistrate’s Court in the suits against Gonsoulin and others there instituted was to be determined under the-Constitution of 1879 and not that of 1898. And since, under the-former Constitution, he was possessed of no appellate jurisdiction in any of those cases, it follows that he could not lawfully issue his writ'- • of certiorari to inquire into the proceedings leading up to the judgments therein rendered, and that having issued the same improvidently and subsequently realizing this, the only order for him to then make, or judgment to render, was one vacating the writ and dismissing the proceedings before him.

Has he done more ?

We held in the first' opinion handed down herein that he had, and a careful review of the case on this rehearing has but served to convince us of the correctness of the position then taken.

On the 26th of November, 1898/ there was filed in respondent judge’s court his final opinion and decree in State ex reí. Gonsoulin vs. J. A. Babin, justice of the peace, being the proceeding' wherein he had issued his writ of certiorari to review the action of the Magistrate’s Court in the 143 causes which had been instituted there against Gonsoulin. and others by relators herein.

In that opinion he distinctly held that in the 143 cases in the Mag- • istrate’s Court no personal judgment had been rendered against Gonsoulin “except for the 2 per cent, retained by him for his co-defendants,” and that against these co-defendants only, and not against Gonsoulin, was there “absolute judgment for costs.”

He distinctly held further, that the justice of the peace, respondent in that case, had complied with the order which he (the judge of the District Court) had theretofore issued “by relieving relator (Gonsoulin) of all personal liability,” and, for this reason, he decided there was no necessity for maintaining the writ of certiorari.

Accordingly, he discharged the writ, using this language, being the final sentence of his judgment and decree, viz:'—

“The former decree of this court discharging the writs (of certiorari and prohibition) and setting them aside at relator’s costs is, •therefore, correct, and the granting of a new trial is unnecessary for the purpose of confirming the same, inasmuch as the relator (Gonsoulin), not being personally responsible in those 143 cases decided by the respondent judge (the justice of the peace), has r.o ground for complaint.”

This was an intimation, a warning, a direction to the magistrate "that in the execution of the 143 judgments rendered by him he was not to hold Gonsoulin to the full liability which the judgments on ■their face imported, and, thus, was an interference with their exeeu-:tion.

It is patent that had the judge not thought Gonsoulin was without .personal liability in the judgments rendered in the 143 eases, he would have made the writs permanent.

And it is equally apparent that he could not reach a conclusion as to his liability or non-liability without interpreting and passing upon the 143 judgments aforesaid, and this is precisely what, under the law, he had no power to do through the writ of certiorari, for he had no appellate jurisdiction over the casés and could only resort to the writ in aid of such jurisdiction attaching to his court.

The judgments in the 143 cases, as shown in our first opinion, were . against Gonsoulin, and the other parties sued, in solido, both for the amounts claimed and for costs, and when the district judge assumed to say and to hold that such judgments did not condemn Gonsoulin personally for the amounts thereof and for costs, he made himself liable to the writ of certiorari which went forth from this court to supervise his proceedings in the ease then before him and to correct his orders and judgments in those particulars wherein they transcended his authority under the law.

For the reasons assigned it is ordered that the decree of this court .hereinbefore rendered remain undisturbed.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 12,720.
    Mrs. Charles W. Harper et als. vs. The Citizens’ Bank of Louisiana.
    Syllabus.
    "Decision of the case involves the interpretation of an explanatory agreement, or counter letter, as affecting or controlling a contemporaneous act of sale.
    "What is doubtful in an agreement js to be interpreted against him who has contracted the obligation.

      A sale with the right of redemption is none the less a real sale. After the lapse of the redemptory period without the exercise of the equity of redemption, the conveyance is as complete and absolute as though the right had not been reserved.
    :For a right to be destructible by a condition, such condilion must be expressed with clearness and precision.

      ON APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Jamos Wilkinson and E. H. McCaleh for Plaintiffs and Appellees..

      Branch K. Miller for The Citizens’ Bank, Defendant and Appellant..

      James McConnell for State National Bank, Defendant and Appellant.
    Argued and submitted April 21, 1898.
    Opinion handed down January 9, 1899.
    Rehearing refused February 20, 1899.
   Nicholls, C. J., and Miller, J., disenting, filed separate opinions-, in this case.

The opinion of the court was delivered by

Blanchard, J.

In 1892 a small sugar plantation in the parish of' St. Bernard, known as “Creedinoor,” was owned jointly by plaintiffs- and defendants. That is to say, Mrs. Charles W. Harper (then the widow of W. P. Green) and Mrs. 'Charles H. Stewart, plaintiffs, owned an undivided half, in the proportion of two-thirds to the former and one-third to the latter; and the Citizens’ Bank of Louisiana and the State National Bank of New Orleans, defendants, owned equally the other undivided half.

The banks were the holders of eight notes, each for one thousand' dollars, with 8 per cent, interest thereon, drawn by Mrs. Green and-Mrs. Stewart and secured by special mortgage on their interest in the plantation.

The aggregate of this indebtedness, principal and interest, on the-21st of June, 1892, was $8,325.55, and the same was past due and unpaid.

The banks were pressing for payment and the debtors stood in danger of the institution of foreclosure proceedings against the mortgaged property.

The cultivation of a crop of cane on the plantation was then underway for the year 1892, for the joint account, it would seem, of the owners thereof, and some advances for conducting the planting operations had been made, procured through the credit of the banks.

It was figured that, besides the indebtedness on the notes as aforesaid, Mrs. Green and Mrs. Stewart owed the banks at the date mentioned (June 21, 1892) on account of advances to the plantation, the further sum of $704.26, making at that date a total of $9029.81 due the banks.

To settle this indebtedness the plaintiffs agreed to sell and convey to the banks their interest in the plantation, and, accordingly, an act of sale was executed carrying the agreement into effect. This-sale, by its terms, purports an absolute conveyance of the property to defendants for the price and sum of $9029.81.

It was duly registered in the conveyance records of the parish and the banks entered upon full ownership and possession.

On the same day, June 21st, this act of sale was executed, the parties entered into another agreement or contract, styled in plaintiffsr petition and in the briefs a “counter letter.” No reference whatever to the same was made in the act of conveyance.

This contemporaneous writing recites the sale made by plaintiffs of their interest in the plantation to defendants, declaring, in that connection, that “the said banks now own the whole of said plantation.”

Then it stipulates that the banks, having assumed and taken charge of the place, are to cultivate the same so as to make a crop of sugar and molasses thereon during the then year 1892, advancing the' necessary funds for the purpose, with the proviso added that Mrs. Green was to approve all orders or drafts for necessary expenditures.

This is followed by a clause setting forth that the right and privilege of redeeming and buying back the property was given to the vendors, which right was to continue in force up to the first of February, 1898, and the price at which they were to buy back was stipulated to be the same they had sold the property for, with 8 per cent, interest thereon from that date, and the payment to the banks of any balance that may be due them on account of advances made to cultivate the crop left after the sale of the crop.

And then is added, with only a semi-colon separating the same from the preceding part of the clause, these important words: — “and the-said Mrs. Green and Mrs. Stewart will have one-half of the profits of' said plantation credited to them in case the place makes any profits this year.”

Following this is a paragraph reciting that in case plaintiffs did not redeem the property as stipulated for within the time fixed, the plantation was to be sold at public auction on or about the 15th of February, 1893, after fifteen days' advertisement, on the terms of one-third cash, the remainder in one, two and three years, with retention of mortgage and vendor's privilege, etc.

The next and last clause declares that inasmuch as the only object of the banks in acquiring the property was to secure the debt due them, it is- agreed that in case the property sold for such a price that the undivided half which plaintiffs had conveyed brought a sum- in excess of what the banks had paid them for it, with 8 per cent, interest from the date of conveyance, such excess or surplus, plus one-half of the profits, if any, made on the place during the year, or minus .one-half of the losses, if there be losses, was to be paid over to them.

The plantation was cultivated by the banks, and the crop of sugar .-and molasses taken off at the end of the year. This sugar and molasses was sold and the bounty due thereon under the Act of Congress .collected.

A statement of account was then made up. This is styled “Creed-moor Plantation Crop Account of 1892 in account with the Citizens' Bank of Louisiana and the State National Bank of New Orleans.” It showed the debits of the plantation, its expenditures during the year; and exhibited its credits, the sums realized by sale of crops and from bounty collections.

The result of the year’s business was a profit of $2256.05 as shown by this account.

The limit of time fixed in the counter letter for the redemption of the sale by plaintiffs expired without the exercise of the right.

Whereupon the plantation (the whole of it) was duly advertised for ■Sale, as agreed on in the counter letter, and offered at public auction. At this offering it brought $8000.00 and was knocked down to the defendant banks.

Some time later this action was_brought by Mrs. Green and Mrs. ‘.Stewart to enforce a demand for $4430.24 alleged to be due them, under the terms of the counter letter, as their share of profits averred to have been made on the Creedmoor plantation in 1892.

The -contention is that the account- kept by defendants against the plantation lor the crop year ot 1892, should commence only at the date of the sale of plaintiffs’ half interest in the property to defendants, for the reason that by said sale and conveyance all indebtedness then due by plaintiffs to defendants,’ whether by note or on account of previous advances made to the place, was settled.

So, it is averred, there should be deducted from the account all items of expenditure charged thereon prior to June 21, 1892, the date •of the sale, and certain other items, and, this done, the account would show a profit to the plantation of $8860.48, one-half of which is represented to be clue plaintiff's, for which judgment is demanded.

The banks do not agree in their defense. The Citizens’ Bank avers that no profits were made, as a matter of fact, on the Oreedmoor plantation in 1892, and that if there were any made, plaintiffs are entitled to no share therein because of the fact that they did not redeem and buy back the plantation within the redemptory period, the exercise of such right of redemption being the condition upon the happening or consummation of which only could they claim participation in the profits.

The State National Bank takes the position that, as shown by the explanatory agreement or counter letter, the only object the banks had in acquiring plaintiffs’ half interest in the plantation was to secure the debt due the banks; that plaintiffs failed to exercise the equity of redemption as stipulated for; that thereupon the property was offered at public auction as directed in the counter letter, and adjudicated to the banks for $8000.00; and that the net proceeds of the crop of 1892, shown on the account kept by the banks with the, plantation, to have been $2,256.05, in which plaintiffs claim to have had a contingent interest, were entirely absorbed and extinguished by the indebtedness due the banks.

It will bo thus seen that the position of the first named bank is (a) no profits to b® divided; (b)’if profits, plaintiffs lost the right of sharing therein by the failure to redeem the sale.

That of the other defendant bank is, virtually, that there were, it is true, profits, but plaintiffs are entitled to no share therein because, having failed to redeem, the property was sold at auction for only $8000.00, one-half of which, or $4000.00, credited to plaintiffs on their general indebtedness to the bank, with the further credit of their share of the profits, would still leave a balance against plaintiffs instead of in their favor.

Ib other words, treating the first sale, that of June 21, 1892, as merely a security for the debt and as no longer having any effect upon and after the adjudication of the plantation at public auction, and treating the latter sale as the only one transferring the title and itspnce the only one to be considered, and calculating all the indebtedness, with interest, accruing to the banks, and crediting plaintiffs with, their portion of the auction price realized and one-half the profits of the plantation for 1892, nothing is left for them to base the present, action upon.

One bank denies profits, the other admits profits. One interprets the agreement or counter letter to mean that if profits were made, plaintiffs could not avail of them unless they redeemed the sale; the-other does not hold to this interpretation, relying upon another defense. One affirms the conclusiveness and finality of the sale of June-21, 1892; the other that it was only a kind of security for the debt.

Plaintiffs’ position is one of affirmance of the sale of June 21, 1892,, and in this respect they are virtually supported by the Citizens’ Bank, and actively opposed by the State National Bank.

Their further position is there were profits made on the plantation in 1892, and in this they are supported by the State National Bank, and opposed by the Citizens’ Bank.

Their further position is they are entitled to one-half of these profits, whatever they are, and in this they are opposed by both banks, one because they did not redeem the sale as stipulated for, the other because they must be held to the auction price of the plantation in figuring the credit they are entitled to on account of its sale, and because the account cast up on this basis, with their part of the crop profits added, would leave a balance against them.

Their further and last position is that the profits of the crop of 1892 amounted to the sum they claim in their petition, and in this they are opposed by both banks, who assert that if plaintiffs are entitled to anything at all in the way of a judgment for profits, it can not exceed the one-half of $2256.05 shown on the account as a credit to the plantation as the result of its cultivation in 1892.

From this analysis of the positions occupied in this litigation by the parties thereto, is deduced, as aids to a proper interpretation by us of the explanatory agreement or counter letter, the following conclusions :

1st. That the weight of opinion among the parties, construing; their own agreement, is that the sale of June 21, 1892, of a half interest in the plantation by plaintiffs to defendants was a real conveyance and not merely a security for debt.

2nd. That the weight of opinion among them is that if the plantation made a profit in 1892 plaintiffs were to share therein to the extent of one-half, and this right to share in the profits was not dependent on the redemption of the sale.

And we think this view of the meaning and intent of the counter letter is supported by the terms of that instrument. Undoubtedly plaintiffs were, on the day the counter letter was executed, making a present sale of their half interest in the plantation to the banks for the price there stated, and the banks were acquiring the same, so that thereafter the banks, in the language of the counter letter, “now own the whole of said plantation.”

A sale with the right of redemption is none the less a real sale. After the lapse of the redemptory period without the exercise of the equity of redemption, the conveyance is as complete and absolute a3 though the right of redemption had not been reserved.

Nor does the subsequent clause in the counter letter, that if the property was not redeemed by the vendors, it was to be sold at auction, weaken this position. That clause is construed as granting merely a concession to the vendors by the vendees, a giving to them of a later chance to see if their half interest might not be made to realize more than the sum defendants had paid for it, and, if so, allowing them the excess over what they had received at the previous sale.

That this was the intention of the parties is shown by the fact it is no where stipulated that in the event the place, when sold at auction, brought less (for the half interest belonging to plaintiffs) than what the banks had paid them for it previously, they (plaintiffs) were to make good to the banks their part of the deficit. They were to have the excess, if any- — that was stipulated in the agreement; but not to be held for the deficit, if any — that was not stipulated in the agreement. Expressio unius esi exclusio aUerius.

Undoubtedly the purpose of the banks in acquiring the property was to realize the debt they held against it, and they were willing to hand it over at the auction sale to any one who would pay sufficient for it to return them the entire amount of money it represented to them with interest, and hand over to the plaintiffs their share of the surplus, if any.

It is in this sense that the words in the counter letter “inasmuch as the only object of the said banks in acquiring said property was to secure the debt due to said banks,” are held to have been used.

The banks were willing to buy and did buy the half interest of' plaintiffs in the property at the price ($9029.81) representing the sum agreed upon as that which plaintiffs then owed them. Besides this, they undertook “to run” the plantation and divide the profits, if any, with plaintiffs. This was reasonable when it is considered the crop was already pitched and under way for the year — the time being towards the end of June.

Plaintiffs were, under duress of debt, selling in the middle of the year, with reservation of certain rights, one of which was participation in the profits of the crop already under cultivation, and another was the equity of redemption of the sale.

This division of profits was an obligation the banks, who took charge of the plantation under their purchase, assumed towards plaintiffs. If there be doubt whether plaintiffs’ right to participate in the profits exists as an independent proposition, or was dependent on the condition of the redemption of the sale, such doubt must be construed against the obligor.

“In a doubtful case,” says C. C., 1957, “the agreement is interpreted against him who has contracted the obligation.” 20 La. Ann. 363; 6 La. Ann., 204.

While the banks were -to cultivate the plantation, making the necessary advances therefor, it was stipulated that Mrs. Green was to supervise the expenditures; she was to approve all orders or drafts. This is strongly corroborative. Why was she to have anything to do with the expenditures relating to the crop if she did not have an ultimate interest in the same? A profit could only be made by keeping down the expenditures, and she seems to have been invested with a veto power over the expenses.

It is true this might be said to apply as well to the case of participation in the profits only in event the sale was redeemed.

But at most it leaves the true meaning and intent doubtful, and the law just quoted applies.

For a right to be destructible by a condition, such condition must be expressed with clearness and precision.

Holding, therefore, that plaintiffs ar‘e entitled to an accounting for the profits and to one-half of same, if any, the next inquiry is were there profits, aud, if so, how much ?

The lower court held there were profits and fixed the amount thereof at seven thousand three hundred and sixteen dollars and fifty-two cents, awarding plaintiffs a judgment for one-half thereof, or-' three thousand six hundred and fifty-eight dollars and twenty-six-cents.

The plantation,* the evidence satisfies us, made a profit in 1892, but we have reached a far different conclusion as to the amount thereof and as to what plaintiffs are entitled to a judgment for on that-account, than did our brother of the court a qua.

The account of the plantation with the banks shows a total expenditures for the year of fifteen thousand five hundred and fifty-seven' dollars and seventy-nine cents.

It shows total receipts from sale of sugar and molasses and from' bounty collections of seventeen thousand eight hundred and thirteen dollars and eighty-four cents.

This leaves a balance of two thousand two hundred and fifty-six dollars and five cents in favor of receipts over expenditures. This is profit.

The correctness of this account was admitted on the trial. This= meant that all the items of debit and credit thereon were correct.

This admission was made with the reservation on part of plaintiffs-that they would contend the first item on the debit side of the account was covered and extinguished by the sale made of their half interest in the plantation in June, 1892; while defendants would contend it was not.

This first item appears on the account under date of June 181-1892, and reads as follows: “To advances made through Pierre Lanaux as per account rendered from January 23, 1892, to June 18, 1892, $5,061.47.”

This was an indebtedness due by the plantation at the date of the sale by plaintiffs of their half interest to defendants. The effect of plaintiffs’ admission of the correctness of the account is to fix this' item as a debt incurred on behalf of the crops of 1892. It was undoubtedly an expense incurred in behalf of the crop of 1892,-Reing such it must figure against the profits.

If this item is excluded as paid by the transaction resulting in the" sale of plaintiffs’ half interest in the plantation, which is the conten— tion. of plaintiffs, then it would show a very much larger sum to be .credited to them as “profits.” But when we turn to that clause of the .counter letter, on which alone is predicated their right to demand an .accounting for the profits, we find it reads: “And the said Mrs. •Green and Mrs. Stewart will have one-half of the profits of said plantation credited to them in case the place makes any profits this •year.”

It will be seen it was not considered by the parties that they started with a clean score on the 21st of June of that year, and the profits were to be reckoned only on the basis of expenditures on the place to be thereafter made. If they had they would have said so. What they wrote into their agreement was that if the plantation, •counting all expenditures,for that year, made a profit, there was to be .a division of the same.

Now, counting all the expenditures for the year, the plantation ■made a profit of only two thousand two hundred and fifty-six dollars .and five cents. The admission aforesaid covers the disputed item as an expenditure of the plantation for the year, and the memorandum •of indebtedness of plaintiffs and defendants, made out when they ■conveyed their half interest in the plantation to the banks, does not include this item. ■ The most that can be claimed for it is that it includes part of it.

That memorandum refers to “$1,408.53 crop advances due Pierre Lanaux, merchant, on 21st June, 1892,” and debits plaintiffs with one-half thereof, cr seven hundred and four dollars and twenty-six cents, the same being one of the items going to make up the sum of nine thousand and twenty-nine dollars and eighty-one cents which figured as the price of the sale.

This $1,408.53 crop advances” due Lanaux may have-been-a separate account altogether from the one which afterwards figured in the plantation account as the first item for five thousand and sixty-one dollars and forty-seven cents. It is not, at least, certain that it entered inte it.

But we will, still interpreting the agreement “against him who has contracted the obligation,” give plaintiffs the benefit of the doubt, and bold that one thousand four hundred and eight dollars and fifty-three cents of the item of five thousand and sixty-one dollars and forty-seven cents was covered by the transaction resulting in the sale afore* ■said, and plaintiffs part thereof extinguished by being included in the price of the sale. Deducting this one thousand four hundred and eight dollars and fifty-three cents from the expenditures to be figured against the receipts or credits of the plantation, we have this result:

Expenditures ........................................$14,149 26

Receipts .................4........................... 17,813 84

Difference representing profits to be divided............ 3,664 58

Plaintiffs one-half thereof ............................ 1,832 29

for which sum they are entitled to judgment, with five per cent interest, from July 27, 1893, the date of the last collection of bounty and of the rendition of the account.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended by reducing same to the sum of one thousand eight hundred and thirty-two 29-100 dollars, with five per cent, per annum interest thereon from July 27, 1893, until paid, and as thus amended the same be and is hereby affirmed, costs of the lower court to be borne by defendants, those of this court by plaintiffs and .appellees.

Nicholas, O. J., dissents, and hands down dissenting opinion.

Hr. Justice Hiller dissents on independent grounds.


author: Niciiolls, C. J.

text:
    No. 13,092.
    A. Goodwill vs. John Elkins, Certified from the Court of Appeals, First Circuit, by the Judges Thereof, Applying for Instructions.
    Syllabus.
    'Since the adoption of tie Constitution of 1898, persons holding from theii’ debtors waivers of citation and confessions of judgment of the character referred to in Article 91 of that instrument, are not entitled upon simple production and proof of the waivers, and proof of the confession to obtain judgments, though the waivers and confessions may antedate the Constitution.
    'They must proceed independently of the waivers of citation, as if the same had not been written, and follow the rules governing ordinary proceedings.
    The Judges for themselves.

      L. K. TTathins for A. Goodwill.

      Submitted February 20, 1899.
    Opinion handed down March 7, 1899.
   The opinion of the court was delivered by

Niciiolls, C. J.

The judges of the Court of Appeals of the First Circuit have certified to us that in the suit of A. Goodwill vs. John Elkins, therein pending on appeal, “a certain question is presented for solution which they think a proper one to submit to the Supreme Court, to the end, that they may obtain from it instructions for the proper determination of the cause.” The question is submitted to us ■ in the following language:

’ “On the 22nd of December, 1894, the defendant gave a promissory note to the plaintiff for one hundred and fifty dollars, with eight per cent, interest from December 31, 1888, payable one day after date. In the body of the note is a waiver of jurisdiction, citation, and copy of petition, and a confession of judgment in favor of the holder for the amount of the obligation.

This obligation was presented to the judge of the Second Judicial' District, accompanied with a petition and proof of the waiver of citation, and confession of judgment, on which the judge declined to grant a judgment, for the reason that the obligation was not due at the time of the signing of the confession of judgment, and that under Article 91 of the Constitution of 1898, the waiver of citation and confession of judgment, by document under private signature prior to the maturity of the obligation, could not form the basis of a judgment, without citation, as in ordinary form of procedure.

From this ruling of the court, the plaintiff appealed to this court.

It is clear, that under the law and jurisprudence as it existed prior to the adoption of the present Constitution, the plaintiff, on the production of such an obligation, was entitled to judgment; and the only question to be determined is, does the provision in Article 91 of the Constitution of 1898, that “service of citation shall not be waived, nor judgment confessed by any document under private signature, executed prior to the maturity of the obligation, have such a retrospective operation as to restrict the power of the courts in making confessions of judgment executory, without citation or delay, or in the ordinary forms of procedure.”

We are of the opinion that parties holding from their debtors waivers of citation and confessions .of judgment, such as Article 91-of the Constitution of 1898 refers to, are not entitled since the adoption of that instrument to obtain judgments upon simple production of and proof of such waivers, and proof of such confessions.

That they must proceed against their debtors independently of the waivers of citation, and as if the same had not been written, and follow the rules governing1 ordinary proceedings.

The fact that the waivers of citation and confessions of judgment may have been given at a date anterior to the adoption of the Constitution, is an immaterial circumstance in that connection.

Our answer is intended to refer to and cover nothing more than methods of proceeding; matters outside of this are left open.

We avail ourselves of the present opportunity to say that our duties, already heavy, have been made greatly more onerous than they were, by the provisions of the present Constitution, and that our labors would be materially lessened if the Court of Appeal, in certifying to us under Article 101 of the Constitution, questions for answer, should give us the benefit of their own prior examinations of, and conclusions upon the matters submitted, and in doing so, would cite-the laws and decisions bearing upon them.

It would greatly facilitáte us to be placed in possession of the briefs filed by counsel of the parties, and to be informed precisely as to what their contentions and arguments were.


author: Nioiiolls, C. J.

text:
    No. 12,940.
    Widow and Heirs of Paul Koerber vs. The New Orleans Levee Board, et als.
    Syllabus.
    1. Where plaintiff sues for a certain amount for injury done to his property by defendant, and the latter has, after an answer filed by them, pleading the general issue, restored the property to its original condition, he is entitled to set up that fact by supplemental answer. The issues in a case of that character are not changed by such answer.
    The whole tendency of later jurisprudence is towards extending the privilege of amendment as far as is consistent with substantial justice and not in; opposition to express statutes.
    Multiplicity of suits and creation of oppressive costs are thus avoided.

      ,2. Ordinarily private property should be taken for public use only by regular judicial proceedings, but there are occasions when the public safety requires and justifies the taking by the State of such property under the exercise of its police powers. It Is the duty of the State to save the owner thoroughly harmless under such circumstances.
    .3.' The Board of Levee Commissioners of the Orleans Levee Board is a “body politic” with corporate powers, with the right granted to it to sue and be sued. It was created as a governmental public agency to represent the State in dealing with the matters and things placed under its control by the statutes referring to it.
    'The object of the Board was to protect the property within the district from overflow as rapidly and effectually as possible by the construction and repair of all levees, whether on river, lake, canal or elsewhere, necessary for that purpose.
    'To that end it was granted the franchise and power to do and perform ail things needful to carry out the purposes of the act and vested with discretionary power of action in cases of emergency.
    •4. The right and power of the Board to act in emergency cases was not made by law conditional upon having obtained prior thereto the approval and consent of the State Board of Engineers.
    The provisions of the law relating to such approval bear not upon the exercise of the power of ordering emergency work, but upon the method by which the contract for the work should be made. The validity of the contract might be affected by departure from the terms of the law in this regard, and yet the work itself might have been legally ordered and executed.
    .'5. It was not necessary to warrant action by the Board as being taken under an emergency that it should wait until there was an actual break in the levee or it was in face of an absolute certainty that there would be such a break.
    'To require this would make the exercise of the power practically useless.
    '6. When the work ordered by the Board to be made is authorized to be made in the exercise of the police power of the State, the contractor for the work is authorized to enter upon the owner’s property to execute the same and the latter is not justified in resisting his doing so. When such insistence is made he is authorized to put an end to the same, provided he do so in a legal manner not passing beyond the exigencies of the case. He Is authorized to invoke the aid and assistance of a policeman present in arresting the parties, instead of attempting to enforce legal rights himself, as thereby there would be less danger of a breach of the peace.
    ON APPEAL from tbe Civil District Court for the Parish of Orleans. Ellis, J.

      G. V. Soniat and G. W. Besancon for Plaintiffs, Appellants.

      Bernard McOloshey for Defendants, Appellees.
    Argued and submitted February 23, 1899.
    Opinion handed down March 7, 1899.
   The opinion of the court was delivered by

Nioiiolls, C. J.

Plaintiffs, the widow and heirs of Paul Koerber,. in a petition filed on May 12th, 1897, asked judgment in solido against the city of New Orleans, the Orleans Levee Board, Alonzo C. Bell, Otto Thoman and William G. Mitchell, for thirty-five hundred dollars.

Otto Thoman, one of the defendants, was at the time of the acts-referred to in plaintiff’s petition, president of the Orleans Levee' Board, Alonzo 0. Bell, city engineer, and William G. Mitchell, a contractor, under a contract with the Orleans Levee Board, for the purpose of repairing and strengthening the protection levee, a levee situated in the parish of Orleans between the parishes of Orleans and Jefferson.

Among the plaintiffs were John Koerber and Paul Koerber, sons of Paul Koerber, Sr.

Their demand is based upon allegations that the Orleans Levee-Board was then in the act of repairing the so-called upper protection levee, situated in New Orleans, between the boundaries of the parishes of Orleans and Jefferson. That said Levee Board had given out the contract for said repairing to one William G. Mitchell, who had hired a number of persons to do said works for said Levee Board. That for the purpose of raising and strengthening said Protection Levee under his contract it became necessary for said contractor to obtain dirt; that a vast amount of same was obtained from the stréets of the-Seventh Municipal District, at a great distance from said works and at great cost to the contractor and the Levee Board, and to the great cost of the raising of said levees, and Alonzo 0. Bell, city engineer,, seeing the defacing of the public streets and the great cost that would ensue to the city for replacing the streets in the same condition as-they were originally, after conferring with the authorities of the Orleans Levee Board, came to the conclusion that the taking and appropriating for said purpose of petitioner’s property was the easiest way out of the difficulty, so that on Saturday, the 24th day of April, 1897, at about 4 p. m. on a day and at an hour when petitioners could not have protected their legal rights by way of injunction or otherwise, said parties having confederated as aforesaid, invaded with about one hundred men and trespassed upon, without any warrant in law, certain property in the city of New Orleans belonging to them which they fully described. That two of the plaintiffs, John Koerber and Paul Koerber, some time after the invasion of petitioner’s lands, seeing that great damage was being done their property came upon same and in order to protect petitioner’s rights, protested against the illegal taking of their land and the digging of large trenches for the purpose of taking dirt; that Alonzo 0. Bell, acting in his individual capacity and by authority of the Orleans Levee Board and as City Engineer, or in all of said capacities, did threaten to arrest both of Protestants, and actually did cause the arrest of Paul Koerber without any warrant in law — that neither the Orleans Levee Board, nor the city of New Orleans, nor said contractor, had any right or authority to invade and trespass upon said lands in order to make the excavations on same; that no authority was ever shown petitioners or any of them, that could have granted to said trespassers the right to take physical possession of the same. That expropriation proceedings were never instituted against petitioners for said lands, and petitioners further averred, that no written permission of the State Board of Engineers was ever obtained by the Orleans Levee Board, authorizing them to employ any contractor, or any one else for any so-called emergency work as required by law; that no actual emergency existed at the time to warrant the illegal appropriation of petitioner’s lands as aforesaid.

They further represented that said contractor, William G. Mitchell, and Otto Thoman, authorized and assisted by the Orleans Levee Board, did employ between eighty (80) and one hundred men (100) in making said excavations and removing dirt from petitioners’ lands. That petitioners’ property was at the time of filing their petition, a pond throughout its length and breadth for more than three feet (3 feet) deep and water was then standing, and it was then unfit for 'habitation or occupation. That their property was, prior to the excavation, very valuable, due to the fact that a line of street railway had then its tracks laid and would soon have run its cars to their property, which was situated at its terminus at the head of Fourth street. That the destruction of their property had caused great damage and injury to same, to an amount exceeding two thous.and dollars, which they considered a very fair and reasonable amount of actual damages; that the annoyance and humiliation caused them by the forcible entry upon their property and the trespassing upon same, the taking of same and spoliation of same, without any warrant in law, exceeded the sum of fifteen hundred dollars ($1500.00), which petitioners considered a very fair and reasonable amount of punitive and exemplary damages done in the premises.

The Levee Board answered, pleading first, the general issue. It ■then averred that the Board of Oommissioners of the Orleans Levee Board, under Act No. 93 of 1890, was authorized and empowered to appropriate property for levee purposes, and it was under the -authority to it delegated in said act, authorized and empowered to take the quantity of dirt referred to in the petition of plaintiffs. That ■the property referred to in the plaintiffs’ petition was part of the levee ■ system of the parish of Orleans, and respondent was not liable to pay for any property taken as aforesaid for levee purposes, or destroyed for such purposes. That the dirt referred to in plaintiffs’ petition, was absolutely necessary for levee purposes, and respondent, even if expropriation proceedings would have been necessary under ordinary circumstances, were justified in the emergency wherein said dirt was .taken to use and employ the same for levee purposes. That the Board -of Oommissioners of the Orleans Levee District considered the projection levee of the city of New Orleans required strengthening, and in furtherance of said views, required the said dirt. That, if the ■court should find that the respondent should pay for the dirt thus used, as aforesaid, then the amount due could only be determined by a .jury, empanelled in accordance with the expropriation laws, and the value of the same could not be determined in any other way.

The Orleans Levee Board (over plaintiffs’ objections, and under jheir bill of exception) was permitted by the court to file a supplemental answer in which it averred that at the date of the filing of the original answer, the Mississippi River was at a high stage, and threatening the city of New Orleans. That said answer was filed under conditions then existing in the city of New Orleans. That .since the filing of said original answer, defendant had replaced the dirt or earth referred to in .the petition filed, and therefore, no cause -of action existed.

The District Court rendered judgment in favor of the defendant, ■and plaintiffs appealed. During the trial plaintiffs discontinued their demand against Bell, Thoman, Mitchell and the city of New 'Orleans.

Opinion.

The Orleans Levee District was created by Act No. 93 of 1890, entitled: “An act to establish the Orleans Levee District and Board of Levee Commissioners thereof, to define their powers and duties, to-provide a revenue therefor and to repeal conflicting laws.”

By the sixth section of the Act, the Board was charged with the construction and repairing, and invested with the control and maintenance of all levees in said Orleans District, whether on river, lake, canal, or elsewhere, and directed to proceed as rapidly and effectually as possible to put the same in such state as to amply protect the property within the district by the best methods.

Tho Board, as to location, construction and repairs of all levees necessary to protect said district, were to first have the approval in-writing, of the State Board of Engineers.

All levee work or work of similar character, except that required-by emergency, was directed to be advertised, to be let out by sealed proposal, to the lowest responsible bidder, reserving to the said Board authority to reject all bids.

The act declared that in case of emergencies, said Board might, itself, build or repair levees to protect said District, without such competition, but with the approval, as aforesaid, of the State Board of' Engineers if it should be practicable to obtain such approval, in such cases however spreading on its minutes a statement of the reasons of such action.

By the third section, the Board of Commissioners of the District,, authorized by tho act to be appointed by the Governor, was created “a body politic,” and had conferred upon it “the franchise and power to do and perform all the purposes of the act, and to act, hold, own and convey all the property, real and personal, needful in the premises, and to alienate, mortgage and pledge the same for said purposes.”

By the eighth section, the Board was given full power to expropriate any lands necessary for its works, whether in the parish of Orleans, or in adjoining parishes, by the proceedings provided by the Civil Code 0^18^0, Articles 2626 to 2641, inclusive, which were thereby made, in all respects, applicable to said Commission, and its works and the right of way over all lands of the State and of the city of New Orleans were thereby granted to said Commissioners for any of its works.

By the ninth section, it was enacted that the act should be liberally construed to effect its object.

Section six of Act 93 of 1890, was amended and re-enacted by Act No. 79 of 1892. The amending act charged the Board of Commissioners with the control and maintenance of all levees in said Orleans District, whether on river, lake, canal, or elsewhere. It made it also the duty of said Board-to provide by the best method, for the thorough protection of said district against overflow, and to this end said Board-should have full power and authority to put up and erect, in connection with its levee system, such pumps, flood gates and other appliances as might become necessary to carry out said purpose, provided-that the said Board of Levee Commissioners, as to location, construction and repairs of all levees on the river front of said district should' first have the approval, in writing, of the State Board of Engineers.

All levee work and other work ordered by the Board, except that required by emergency work, was directed to be advertised to be let out by sealed proposals, to the lowest responsible bidder, reserving to said. Board to reject any and all bids. In cases of emergency, said Board, was authorized to itself build or repair levees, and do all other necessary work to protect said district without such competition, “but with» the approval, as aforesaid, of the State Board of Engineers, in such, cases, however, spreading on its minutes a statement of the reasons, for such actions.”

In 1897 the waters of the Mississippi river rose to such an unusual height as to cause the gravest apprehension of disaster throughout all! that portion of the State subject to overflow.

The members of the State Levee Board, with a view of averting as' best they could the threatened danger, left the city of New Orleans, the domicile of the State Board, to take personal supervision of- the levees within the different districts to which they had been assigned, making it impossible to secure, at that time, Board action in reference to levee matters, within the city of New Orleans.

The people of that city and the members of the Orleans Board shared in the fears entertained on this subject throughout the country parishes; immense interests were at stake and official responsibility very heavy.

Danger confronted the city, not only from the levees directly upon its river front, but from the waters which would flow into it from the sides and rear, from breaks in the levees in the parish of Jefferson, which parish adjoined on its lower line the upper line of the parish ef Orleans.

Called to take action, the Orleans Levee Board determined to meet the latter danger by raising and broadening a levee known as the protection levee, which had been constructed a number of years before. That levee ran almost at right angles from the Mississippi River along the boundary lines between the two parishes just named, back to the swamp.

To accomplish the object in view it was necessary that earth should taken from the properties lying along and near the base of this .'•levee to be thrown upon the levee.

The plaintiffs in this suit owned land just in that situation. Property so situated was not held subject to a servitude for the erection . of levees running back from the river.

, Regularly, it could only be taken for such purpose for public use ' by means of judicial expropriation, proceeding upon proper Compensation made according to law. It was, however, liable to be so utilized, under- the exercise of the police power of the State, when called into action by emergency admitting of no delays.

Defendant Board, considering the situation to be one of emergency, made a contract with W. G. Mitchell, one of the defendants, to repair .and strengthen the protection levee, without having first advertised the same for sale at public auction.

The work was ordered and executed and the contract given to Mitchell, without prior consultation with or consent of the State Board of Engineers.

On April 24th, 1897, before commencing work upon the levee, the Orleans Levee Board, through its secretary, wrote a letter to John Koerber, in which they said that the requirements of the Board would compel them to take dirt from his lot, corner of Oak and Protection streets, but that they would refill it when the water receded, and that -the letter sent him would be the basis and evidence of his claim when -the river went down.

Mitchell, with a view of executing his contract, proceeded with his laborers to the protection levee, and entered upon the property of the •plaintiffs, but before work to any extent had been made, two of the -plaintiffs, John and Paul Koerber, appeared to protest, as they claimed, against an illegal invasion of and unwarranted taking of •their property, evidently under the impression that a judicial expropriation was essentially necessary to have been made to justify the fiction of the Board.

A number of persons, from curiosity or otherwise, appeared upon .the scene and quite a heated discussion took place as to what should ■or should not he done, and one or more of the bystanders made use of intemperate remarks. Paul Koerber forbidding the workmen to proceed in their work, it became evident that it would stop unless his opposition could be disposed of at once. To that end Bell, one of the defendants, who was present as the consulting engineer of the defendant Board, ordered a policeman, who was on the spot, to arrest Paul Koerber and take him to the office of one of the city recorders, Bell saying that he would make a charge against him.

The order was obeyed and the three proceeded before the recorder. Before his office was reached, Koerber asked to be permitted to see certain parties, with a view of getting released on bail, but Bell informed him that he would see that ho was paroled, and this promise was carried out.

The prosecution was abandoned and Koerber discharged the next day, or a few days after.

In the meantime, the work was carried on ,and in the course of several weeks the widening and raising of the levee was completed.

In the course of this work, the property of the plaintiff seems to have been pretty effectually dug up, as some of the witnesses said “con■verted for the time being, into a pond.” After the waters receded so .-as to admit of sand being taken from the banks, the defendant Board • caused the lot to be filled up (completely so, according to the defendants’ contention, and very imperfectly and insufficiently so, according to that of the plaintiffs). For several years prior to the execution of this work by the Orleans Levee Board, Protection or Upper Line street, a street running back from the Mississippi river, and which formed the upper boundary of plaintiffs’ property, had been partially taken up by the building on its upper side, of Protection Levee, but there remained still some open space between the base of the levee and plaintiffs’ upper side line, by means of which they could have access, (though not as fully as would be proper and customary) m the street in front to that in the rear. This open space included that usually devoted in cities to the sidewalks.

The raising and widening of Protection Levee by the defendant Board caused this space to be closed up to, if not beyond, plaintiffs’ line: Protection Levee itself being now the upper boundary of plaintiffs’ lot. The record does not show who was the owner- of the -proiperty covered originally by Protection street and the sidewalks of the same, at the time of the dedication of the same as a street, and we do-not know where the tee of the same was at the time the open space we have referred to was closed.

Almost immediately after the work was commenced under Mitchell’s-contract, and while plaintiffs’ property was in its worst condition, the present suit was brought; brought obviously under a sense of having been outrageously treated, both as respects personal and property rights. It was only subsequently to the filing of the suit and the answer of the defendant Board that the lot was refilled by orders of. the defendant Board.

The first contention made by the parties was that on the part of the defendants, that there was a misjoinder of parties plaintiffs and' an improper joinder of different causes of action between distinct parties.

They contend that Paul Koerber has improperly cumulated an action for malicious prosecution, in which he is alone concerned, with, an action for damages, brought by other parties.

Defendant is mistaken in supposing that the allegations made in' plaintiffs’ petition were advanced for the purpose of basing therqon a substantive cause of action. They were inserted in the petition merely for the purpose of swelling the amount of damages claimed by the plaintiffs in an action for malicious, forcible trespass, by showing,, as they claimed, aggravating circumstances connected with defendant’s taking illegal possession of their property. On plaintiffs’ theory of their case, there was no misjoinder.

The next question we have to consider, is whether plaintiffs’ complaint that defendant should not have been permitted by the court to-file the supplemental answer found in the record, is well founded. They maintain that it was toó late for them to file an answer, and besides, it changed the issue before the court. They contend that after the defendant took possession illegally of their property, they had the right to sue upon a money demand for damages, and defendant could not cut off this claim for money and substitute in lieu of that remedy to which they were legally entitled by a restitutio in integrum; that it was optional with them to say whether their property should be replaced in its original condition or not, and they had elected not to have this done.

That defendant’s answer was substantially a plea of payment or compensation, which they were not authorized to make.

In ruling that defendant’s supplemental answer'should be filed, the-■court informed plaintiffs that time would he granted to them if they -so desired. They did not avail themselves of the privilege.

Plaintiffs’ action is not basd upon the theory that their property, has been taken from them by means of expropriation or otherwise, but that the property (still theirs) had been maliciously trespassed upon and injured, for which injury they ask for damages in the amount claimed.

They have not abandoned the property nor tendered it to the defendant, but the owners thereof, sue the Board for damages ■after it (without opposition from them) has refilled the lot.

When the plaintiffs demanded from them two thousand dollars as damages to their property, and the defendants pleaded the general denial, we think that defendants were authorized, under that plea to -show either that they owed them nothing at all, or an amount less •than |he sum claimed. The substantial issue at the time of the judgment was whether, by the action of the defendant, plaintiffs could rightfully ask judgment for two thousand dollars, as having received ■injury to that extent. If their property at the time of the judgment was in as good condition as it had ever been, it would be inequitable to permit them to ignore that fact by reason of the circumstance that at .some particular antecedent date, it had been damaged to some extent.

Mere replacement of the property to its original position would, however, leave open any claims which plaintiffs might properly have for the tort dehors that resulting from the depreciation of the property itself. The action, under certain circumstances, would not .abate even by an admission by the plaintiffs that the property had been restored to its original condition, though the question of the damages claimed upon that branch of the case might be eliminated. (Powers vs. Florance, 7th Ann. 524). “The violation of (he right to -the use of property supports an action to vindicate the right without proving damages.” (Dudley vs. Tilton, 14th Ann. 283).

The fact that the injury to the property was repaired after the defendant had filed its answer did not do away with its right to plead it by supplemental answer and prove the fact on the trial.

It is true that decisions can be found announcing the doctrine that facts occurring after the institution of suit cannot be considered to ■determine the justice of the demand.

(Hennen’s Digest, Title Judgment, subdivisions “Of the Conditions of Judgment; and its Conformity to the Pleadings and Verdict,” pages 783, 784); but this rule is subject to many exceptions and each case has to be determined on its own state of facts.

We are of the opinion that the District Judge did not abuse his-discretion in permitting the filing of the supplemental answer, particularly in view of the fact that he offered to grant plaintiffs time should they desire it.

The whole tendency of later jurisprudence is towards extending the privilege of amendment as far as is consistent with substantial justice and is not in opposition to express statute. Multiplicity of suits and creation of oppressive costs upon litigants are thereby avoided.

We are not called on to express any opinion as to what the legal situation would have been had we decided that the defendant had illegally and maliciously trespassed upon plaintiffs’ land and invaded their rights of property, and that Bell, in so doing, had illegally caused the arrest of Paul Koerber.

The conclusion -we have reached on those subjects and the discontinuance of plaintiffs’ demand, as to Bell individually, eliminate that question from the case. (See on this subject, Sicard vs. Chitz, 13 La. Rep. 111).

The Board of Levee Commissioners of the Orleans Levee District is. “a body politic,” with corporate powers, with the right granted to it to sue and be sued.

It was designedly created as a governmental public agency, to represent the State in dealing with the matters and things placed under its control by the statutes referring to it.

The object of the Board was to protect the property within the district from overflow as rapidly and effectually as possible, by the construction and repair of all levees, whether on river, lake, canal or elsewhere, necessary for that purpose. To that end the Board was granted “the franchise and power to do and perform all the purposes-of the act.”

Act No. 93 of 1890, by which the Board was created, was partially amended and re-enacted by Act No. 79 of 1892.

In the original act the Board were directed as to the location, construction and repairs of all levees, to first have the approval, in writing, of the State Board of Engineers.

In the amending act it was provided that the Board of Commissioners should first have such approval as to all levees on the river front; such prior approval not being called for in respect to levees elsewhere.

In both acts it was made the duty of the Board of Commissioners' generally to advertise and let out by sealed proposals to the lowest responsible bidder, all levee work, or work of similar character.

The Legislature, foreseeing the possibility of some emergency occurring which might call for immediate action in order to secure the public safety, gave to the Board the power to meet such emergency. In aid of the exercise of that power the General Assembly dispensed it from letting out the work in the manner provided for and authorized it to give out the work by private contract.

In the original act this right was to be exercised with the approval of the Board of Engineers, if it should be practicable to obtain such approval — in such cases it was made the duty of the Board to spread on its minutes a statement of the reasons of such action.

In the amending act, the words “if it be practicable to obtain such approval,” were omitted.

The plaintiffs contend that the work done by the Board of Commissioners upon the Protection Levee was not “emergency” work, and' their property could only have been taken for public use through and under regular expropriation proceedings and prior compensation. But that, even if the work was called for by an emergency, the Board did not have the prior consent thereto of the State Board of Engineers, and by law this prior consent was made a condition precedent to - the work being done'.

They maintain that the action of the Board in the premises was premature; that they were not confronted by an actual, but a mere possible danger, and therefore they acted beyond their powers. We-do not think the Board was called upon to wait until they were in face-of an actual danger. To postpone action until there was an actual break in the levees of Jefferson parish, or until there was an absolute certainty that they would break and that therefrom the parish of Orleans would be inundated, would be to make the exercise of the power' of action practically useless.

The work itself of throwing up and strengthening levees is a work of time and the efficiency of the work is also to a very considerable-extent, dependent upon time.

We think the situation in the Orleans Levee District at the time ¡the Board of Commissioners had the work done upon the Protection levee, was such as to warrant and justify the course followed by it.

■Ordinarily, private property should be taken for public use only by regular judicial expropriation proceedings, but there are occasions when the public safety requires and justifies the taking immediately of such property under the police powers of the State.

The plaintiffs were obviously not aware of the fact and were prepared to resist what they deemed .an illegal invasion of their property .rights.

Persons taking the law into their own hands assume the risk of the 'consequences of their acts should they be mistaken as to what the law is.

If the Board of Commissioners was authorized to take the action it ■did (as we hold it was), and the contract with Mitchell was legal, he .and his workmen were authorized to enter upon plaintiffs’ land, and •.the latter were not warranted in interfering with them in the dis- • charge of their duty. Bell was, therefore, authorized to put an end to such resistance, provided he did so in a legal manner, not passing beyond the exigencies of the case. We think he was authorized to invoke the aid and authority of the policeman present, instead of attempting to enforce legal rights himself, as there was much less likeliliood of a breach of the peace by pursuing such a course.

We do not think that the legality of the work done upon the Protection Levee was dependent upon the Board of Commissioners having obtained prior thereto the approval and consent of the State Board of Engineers. The provisions of the law on that subject bear not upon the exercise of the power of ordering emergency work, but upon the method by which the contract for the work should be made.

The validity of the contract for the work might be affected by departure from the terms of the law in that respect, and yet the work itself might have been legally executed.

Some taxpayer might resist the payment of the contractor on the •ground that the contract should have been let out at public auction, but the plaintiffs occupy no such position and raise no such issue in this case.

Coming now to the merits of the case, we are not satisfied that exact justice has been done. Plaintiffs’ property has been legally, but somewhat harshly, taken from them, and we think it was the duty of the State (and defendants practically represent the State), to have saved plaintiffs thoroughly harmless under the circumstances.

There is great difficulty in reaching that end as the original ■ condition of the lot is not shown with anything like precision so as to make it serve as the basis for a test whether the work of replacement .by the defendant Board has been sufficient or not.

There is doubt on that subject and we resolve that doubt in favor of ■the plaintiffs and we do this the more readily as there is one feature

■ of the case which the Board has evidently overlooked. We refer to the fact that by reason of the work done upon the Protection Levee, the means of passage from the front to the rear of plaintiffs’ property on the upper boundary line, has been completely cut off and the value -of the lot must have to some extent, been affected by that fact. A “street” has been converted into a “levee,” and the character of the original servitude on the upper line radically altered. Whether the fee was in plaintiffs or not, the existence of the street on the upper -side was an appurtenance of the property. We are not prepared to -say that when plaintiffs were deprived of the benefit of that street by a change of servitude for public use under the police power of the State, they would not be entitled, under the Constitution of 1879, to compensation as for damages to their property. We leave this question open.

The property as we have said, was not held subject to a servitude in •favor of the State for levee purposes.

We think the ends of justice will be best subserved by reversing the judgment of the District Court and remanding the ease to that court for further proceedings in accordance with law, and in accordance ■with the views herein expressed.

For the reasons assigned, it is hereby ordered, adjudged and de■creed that the judgmnt of the District Court be and the same is “hereby annulled, avoided and reversed, and this cause remanded to the District Court for further proceedings, according to law, costs of appeal upon appellee.