author: Blanchard, J. BLANCHARD, J.

text:
    Nos. 12,441 and 12,444.
    Succession of Hester Calloway, Widow of David Chambers McCan, and Succession of David C. McCan.

      On Motion to Dismiss Appeal. — Trial judge had legal discretion to fix different return-day than that named hy law, if he deemed more time requisite for preparation of transcript. Sec. 4, Act 45 of 1870, E. S.
    An appeal lies from a judgment homologating a succession account whether opposed or not.
    Nothing to show that judgment appealed from was a consent judgment, hut if such, it was in nature of a compromise, and tutrix can not enter into a transaction or compromise respecting minors’ rights without authority of the judge, granted on advice of a family meeting. B. C. C. 353, 3072.
    Delivery of property ana funds of succession to tutrix, not such execution of judgment of homologation of account as precludes appeal on behalf of minor heirs to correct error in matter of commissions charged by executor.

      On the Merits. — The law fixes compensation of executors, and courts are powerless alike to diminish or increase It.
    Where husband dies and entire community property is inventoried in his succes ^ sion and administered there, and executor charges two and a half percent, commissions on the whole, he will not be permitted, on becoming executor of wife’s succession a year later (husband’s succession being still under administration), to charge two and a half per cent, commissions on wife’s portion of community property inventoried in her succession.
    Executor charging full commissions on appraised value of property of estate under his administration, can not make additional charges as trustee, of ten per cent, upon revenues of the succession coming into his hands.
    APPEAL from the Oivil District Court for the Parish of Orleans. Théard and Ellis, J. J.

      Benjamin Rice Forman and E. Howard MeOaleb for Mrs. Mary G. T. Stempel, Guardian, Plaintiff, Appellant.

      W. 8. Parkerson, Ghas. J. Théard and Harry H. Hall for Defendant, Appellee.
    Argued and submitted April 2, 1897.
    Opinion handed down April 26, 1897.
    Rehearing refused May 31, 1897.
    These appeals, from different divisions of the Oivil District Court of the parish of Orleans, were submitted upon the same oral argument and the same briefs filed, and considered consolidated in the Supreme Court for determination.

      David C. McOan died in the city of New Orleans in 1898, leaving a last will and testament. This will was probated, and Harry H. Hall qualified thereunder as testamentary executor.
    A little less than one year later, his widow, Mrs. Hester Callo-way McOan, died, leaving a last will and testament, the duplicate in all respects of that of her predeceased husband.
    This will was probated, and Harry H. Hall qualified thereunder as-testamentary executor.
    On January 6, 1896, in each of these successions, the executor filed an account of his administration.
    These accounts were exact duplicates of each other.
    On February 14, 1896, judgment was rendered in each succession homologating the accounts filed as aforesaid.
    On January 19, 1897, Mrs. Mary G. T. Stempel, mother and guardian of the minor heirs of D. O. and H. 0. McOan, obtained an order for a devolutive appeal from each of the aforesaid judgments of homologation.
   ON Motion to Dismiss.

The opinion of the court was delivered by

Blanchard, J.

The executor, appellee, moves to dismiss on various grounds, which will be considered seriatim.

I.

The first ground is that the appeals were made returnable on the first Monday of March, 1897, whereas the legal return day was the first Monday of February, 1897, unless the intervening time was not sufficient within which to prepare the transcripts.

The order of the court granting the appeals directs that they be made returnable on the first Monday in March “ in order to give time to complete transcript.”

Under Sec. 4 of Act 46 of 1870, extra session, the trial judge had the legal discretion to fix a different return day than that named by law, if more time be required to prepare the record for appeal.

The statement contained in the order of appeal, quoted above, is a sufficient declaration that there was not sufficient time to prepare the transcripts by the next regular return day for appeals, and that for this reason it was necessary to fix another return day, which was done. It does not avail appellee, if it be true, that the trial judge acted, in fixing another return day for the reason given, upon the suggestion of counsel for appellant. The act must be held as emanating from the judge himself, and that in entering the order of appeal as was done he did not abuse the discretion vested in him by. law. Bartoli vs. Huguenard, 39 An. 411; Brabazon vs. City of New Orleans, 28 An. 64; Goodwyn vs. Perry, 26 An. 292; Watkins Banking Co. vs. Lumber Co., 47 An. 581.

II.

The second ground for dismissal is that the judgments sought to be appealed from are judgments homologating an executor’s account which was not opposed, and wherein no issue was raised between the executor and the appellant, though the latter was duly cited and the accounts duly advertised.

An appeal lies from a judgment homologating a succession account, whether opposed or not. Succession of Cloney, 29 An. 327; Succession of Bellocq, 28 An. 155; In the matter of the Pelican Saw-Mill and Manufacturing Co., in Liquidation, 48 An. 711.

III.

The third ground urged for dismissal is, that the judgments sought to be appealed from are consent judgments, from which, under the law, no appeal lies.

The executor makes affidavit to the correctness of the averment of ■consent, and appellant — an absentee — makes counter affidavits ■through her counsel and attorney in fact, denying it.

The record does not show the judgments were consent judgments, and from tho presence in court of the counsel representing the guardian, at the time of the homologation of the accounts, it can not reasonably be inferred chat she, through him, was there consenting to the judgments of homologation.

If there was an agreement to this effect, it should, both under the rules . of the District Court and of this court, have been in writing and filed in the record.

/ Nor would such agreement, if made, have been binding on the McCan minors, who are appellants herein. It would have been, in the nature of a compromise, and a tutrix or guardian can not enter into a transaction or compromise respecting minors’ rights without .authority from the judge, granted on the advice of a family meeting. R. C. C. 353, 3072; Heirs of Burney vs. Ludeling, 47 An. 73; Chambers vs. Chambers, 41 An. 443; Metcalfe vs. Alter, 31 An. 389.

A tutrix is without authority to acquiesce in a judgment from which an appeal lies, by voluntarily executing it to the prejudice of the minors.” Succession of Flower, 3 An. 292.

The fourth ground advanced for dismissal is that the judgments homologating the accounts have been acquiesced in and voluntarily ■executed by the appellant. This rests upon the averment, supported by the affidavit of the executor, that the guardian of the minors has received from the executor all the assets, property and funds of the two successions, as shown by the accounts.

The counter affidavit of the guardian, through her attorney in fact, while admitting the reception of the assets, property and funds, denies any execution of the judgments of homologation equivalent to acquiescence in the accounts upon which they were based.

The delivery of the property and funds of these successions to the guardian of the minors can not be held to be such an execution of, or acquiescence in, the judgments homologating the executor’s accounts, as prevents, later, a seasonable appeal on their behalf, for the purpose of correcting an error to their prejudice, in the matter of commissions charged by the executor. Succession of Kaiser, 48 An. 973; Milliken vs. Rowley, 3 R. 253; Dwight vs. Brashear, 12 An. 860; Liles vs. Canal Banking Company, 6 R. 273.

This being so, it follows that it would avail nothing to remand the ease on the averment of acquiescence and execution.

V.

Where an appeal is taken from a judgment homologating an executor’s account, the fact that the clerk of the court a qua copies into the transcript all the mortuary proceedings of the succession constitutes, in itself, no ground for the dismissal of the appeal. On an appeal like the present one, it is proper the entire record of the succession should be brought up.

VL

As to the complaint of the executor that the note of evidence, in the matter of the homologation of the account, was omitted from the transcript, it suffices to say that a writ of certiorari, seasonably invoked and issued herein by this court, has resulted-in the production of the missing document.

The motion to dismiss is denied.

ON THE MERITS.

There were two wills, but both operated on the same property.

There were two successions opened, but one and the same executor sufficed for both.

There were not two estates to be eared for, managed, administered, and finally delivered over to the heirs; there was but one.

The property was practically all community property. There were no debts.

The heirs under the two wills were the same, and the dispositions of the wills identical.

The husband died first and the entire community estate was inventoried in his succession.

It all passed into the hands of the executor, who was given seizin and dispensed from bond.

The widow in community died a year later and before the husband’s estate was settled.

The property appearing upon the inventory of her succession had been previously inventoried in that of her husband, except some-articles of jewelry, silverware, china and glassware, valued at three thousand eight hundred and fifty-eight dollars and fifty cents, conceded to be the separate property of the wife.

Both wills were attacked, as being in contravention of law, by the-grandchildren of the deceased, who were alike forced heirs and legatees under the wills.

In Succession of McCan, 48 An. 145, this court decreed the nullity of the wills.

This terminated the executorship and placed the heirs in possession of the estate.

"Whereupon the executor filed the duplicate accounts which are-under review on this appeal, and settled with the guardian of the-minors to the extent of delivering to her the property, assets and funds of the succession.

This is not a case where an executor has paid creditors, pursuant to an account, or tableau of distribution, duly approved. It is-merely a contest between the heirs and the executor as to the commissions the latter is entitled to under the law. The accounts filed and the judgments homologating the same are not questioned, except as to the commissions aforesaid.

The question is a simple one of law. An executor’s commissions are fixed by the Code at two and one-half per cent., calculated upon the appraised value of the property as shown by the inventory, deducting bad debts and unproductive property. C. 0. 1683.

This is the compensation determined by the law for executors, and -courts are powerless alike to diminish or increase it.

It appears from the inventory taken in the succession of David 0. MeOan that all the property there listed belonged to the community, and that the husband owned no separate property.

It appears from the inventory taken in the succession of his widow, Hester O. MeOan, that all the property there listed belonged <• to the community, except the jewelry, silverware, etc., hereinbefore mentioned as being the separate property of the wife.

The property, then, owned by David 0. MeOan and his wife in community, which passed into the hands of the executor, is as follows:

In the parish of Orleans. $1,396,699 70
In the parish of Plaquemines. 55,000 00
In the parish of Iberville. 1,000 00
Total community property. $1,452,699 70
Now add to this the value of the wife’s separate property, as same appears upon the inventory taken in her succession. 3,858 50
And now we have a grand total of. $1,456,558 20

Upon which the executor was entitled to commissions of two and •one-half pet centum,, or thirty-six thousand four hundred and thirteen dollars and ninety-five cents.

From the accounts filed in the two successions, we find the executor has paid himself commissions as follows:

August 1,1894, three checks aggregating. $36,292 49
July 20.1895, two cheeks aggregating. 17,892 03
December 20, 1895, one check.. 14,676 00
Total commissions charged and received. $68,859 52

This sum is thirty-two thousand four hundred and forty-five dollars and fifty-seven cents in excess of his legal commissions.

The fact that in the foregoing calculation no deduction has been made for the executor’s commissions on account of bad debts and unproductive property (if there were such) is a circumstance of which he can not complain.

The executor’s overcharge of commissions is attributable to two errors into which he has fallen:

First, that he was legally entitled to charge 2l% per cent, commissions upon the property appearing on the inventory taken in the succession of Mrs. Hester 0. McOan, notwithstanding he had previously charged his full commissions upon the same property as inventoried in the succession of her deceased husband.

We hold this can not be done.

The administration of the succession of the deceased husband carried with it the administration of the community, and there can be but one charge for executor’s commissions against the community property. Baldwin vs. Carleton, 11 R. 109; Succession of McLean, 12 An. 222; Succession of Lamm, 40 An. 312; Millaudon vs. Cajus, Executor, 9 La. 307; Succession of Milne, 1 R. 400.

Second, that he was entitled to charge tec per cent, on one hundred and forty-six thousand seven hundred and fifty dollars and seventy-one cents interest collected on mortgage notes, bonds, etc.,, owned by the successions. While this charge appears upon the account only as commissions paid to H. H. Hall, testamentary executor, his counsel in their brief explain it as above, and seek to justify it upon the ground that under the McOan wills Mr. Hall was not only executor, but trustee or qwasí-tutor to the minors. Upon the theory that the commissions of a tutor are ten per cent, of the revenues of the minors, this charge is made. Mr. Hall was not the tutor of these minors. He was never appointed, recognized or qualified as such. Their grandmother, Mrs. Mary F. Tobin, was first their tutrix, and afterward, their mother, Mrs. Mary G. T. Steinpel, became such. We hold the charge to be untenable. Succession of Milmo, 47 An. 126. The ingenuity of argument by which counsel for the executor seek to uphold this pretension, while eliciting our admiration can not receive our sanction. Conceding that this-administration has been advantageous to the estate, the compensation the executor is permitted to receive therefor is defined and limited by the law. His right to receive this compensation in full will be rigidly upheld; his demand for more as rigidly denied. See Succession of Milne, 1 R. 400; Succession of Sprowl, 21 An. 544; Succession of Turnell, 34 An. 888; Baldwin’s Executor vs. Carleton, 15 La. 394.

But it is insisted, on behalf of the executor, that if it be true the commissions he has charged and paid himself are excessive, it is too-late now for the heirs to have the same corrected.

This insistence is pi-edicated upon the judgments homologating the accounts — one in each succession — filed by the executor prior to his final account, and upon the provisions of O. P. 1004, which counsel for the executor interpret to mean that in a case of accounting like-the present one, unless the heirs, within three days after the account is rendered, file written objections thereto, they can not be heard) subsequently, in an appeal from a judgment homologating the account, to raise objections thereto.

The former is urged in the nature of res adjudícala and is sought-to be erected as a barrier against any inquiry touching the executor’s right to charge two and a half per cent, commissions on the-appraised value of the property inventoried in the succession of Mrs. Hester O. McOan, even though he had charged like commissions-upon the same property in the succession of her predeceased husband.

And the latter is leveled particularly against inquiry into the item of fourteen thousand six hundred and seventy-five dollars, which the executor charged as trustee or quasi-tutor’s commissions of ten per cent, on one hundred and forty-six thousand ssven hundred and fifty dollars and seventy-one cents collected as interest on mortgage-notes and bonds.

In the succession of the husband, the executor filed an account of his administration on July 14, 1894. There is no item of commissions paid himself entered on this account, but at the close of the account is this statement: “Prom sum total of funds and property on hand will be deducted the executor’s commission of two and one-half per cent, upon the amount of the inventory.

This account, it is claimed, was unopposed, was homologated, was not appealed fi’om, and is res judicata.

Whether it be res judicata or not as against these minor heirs, it is not necessary to decide. But, conceding it to be res judicata, it is only so as so to matters of receipt and disbursement actually made and entered upon the account, and the executor’s commissions was not one of these. On the contrary, it is distinctly stated “he will” deduct his commissions, “ he will ” pay himself. This was, clearly, something to be done after the account was filed, and something to form the subject matter, in part, of a future account, where it could be resisted or not, as the interest of the minors might then appear.

The only other account filed in the succession of D. 0. McCan was the one of January 6, 1896, from the judgment homologating which, on February 14, 1896, this appeal was within the year taken.

In the succession of the wife, the executor filed an account on July 11, 1896.

The succession was pending in a different division of the Civil District Court of Orleans parish, and before a different judge. Yet, in his account filed therein on July 11, 1895, the executor puts down as an expenditure, under date of August 1, 1894, the commissions (thirty-six thousand two hundred and ninety-two dollars and forty-nine cents) which he had stated in his account filed in the husband’s succession on July 14, 1894, he would deduct from the funds and property on hand, as shown by the inventory of that succession.

This account of July 11, 1896, filed in the wife’s succession, was homologated December 2, 1896.

It is difficult to see how this judgment of homologation in the wife’s succession can have the effect of res judicata as to commissions due the executor in the succession of the husband pending in a different court, even though it could be pleaded as against the minor heirs herein.

At the close of this account, filed in the wife’s succession on July 11, 1895, the executor states he “ will deduct his commission of seventeen thousand eight hundred and ninety-two dollars and three cents,” being two and a half per cent, upon the amouut of inventory of the wife’s succession. This statement was written into the account on July 10, 1895, and the account, itself, was filed the next day. The judgment homologating this account was signed December 2, 1895, but it brought the administration of the succession down only to the date of the rendition of the account — June 29, 1895, the date of the last entry thereon.

The executor’s commission of seventeen thousand eight hundred and ninety-two dollars and three cents was not actually paid until July 20, 1895 (some time after the filing of the account), and forms the subject matter, in part, of the second and last account filed in the wife’s succession.

Turning, then, to this second account, we find the entry of this charge, under the head of disbursements, on the date of July 20, 1895. This is the account filed January 6, 1896, from the judgment homologating which this appeal is taken.

Yet it is claimed that the judgment of December 2, 1895, on the account of July 11, 1895, is conclusive of this charge of seventeen thousand eight hundred and ninety-two dollars and three cents, the executor’s commissions in the wife’s succession.

We can not hold it so. The manner in which it is presented in the the account of January 6, 1896, shows it was not intended to be concluded by the judgment on the account of July 11, 1895, and it was, and is, as fully open to question and dispute as any other item on the account of January 6, 1896.

This is verified by the fact that the first two items on the account of January 6 show the bringing forward, to the new account, of the exact balance of sixty-five thousand six hundred and nineteen dollars and nine cents in money, with which the account of July 11, 1895, ended, without' any deduction therefrom of the executor’s commissions of seventeen thousand eight hundred and ninety-two dollars and three cents,- which it is now claimed were settled and allowed by the former account and the judgment based thereon.

Nor can we sustain the contention that the item of fourteen thousand six hundred and seventy-five dollars charged on the last account can not be inquired into on this appeal, because objection thereto in writing was not filed by the heirs within three days after the filing of the account. Authorities hereinbefore cited sustain the right of appeal from a judgment of homologation, even though the same has not been formally opposed. See also Succession of Mouton, 23 An. 527.

The object of appeal from such a judgment is to test the sufficiency of the evidence adduced in support of the account, or to-apply to the account as made up and approved the test of the law itself. It may be assimilated to an appeal from a judgment making final a default taken in a case under our practice.

In the instant case it is claimed by appellant that the evidence adduced by the executor on the homologation of his account does not sustain the charge of fourteen thousand six hundred and seventy-five dollars, and also that the charge itself is without warrant in law. The appeal was taken within the year. We hold the charge is reviewable here.

Where, on an account filed by an executor, there are charges in favor of himself unauthorized by law, the same must be considered still as money in his hands as executor, for which he is accountable. Baldwin’s Executor vs. Carleton, 15 La. 395.

Nor do we consider Art. 1004 of the Code of Practice applicable to this case. The executor’s account filed in these successions on January 6, 1896, can hardly be considered as having been filed in obedience to an order of court on the demand of the heirs for an accounting and settlement, such as contemplated by that article. The petition to revoke the wills was filed December 3, 1894. It is true there was a prayer for an account and settlement, but on April 4, 1895, there was judgment in the lower court, rejecting the demand for revocation and for account, and though this judgment was reversed on appeal, ihe decree of this court, while directing the heirs to be put into possession of the estate and annulling the wills, did not specifically order the executor to file his account. Besides the judgment of this court did not become final until February 10, 1896, whereas the executor filed his account January 6, 1896. In his petition accompanying the account he refers to no order of court, but merely states “that he files herewith an account of his executorship from the date of the filing of the last account herein up to the 1st of January, 1896,” and his prayer is that the account be published, the attorney in fact of the guardian be cited and that the account be homologated and confirmed — all as though it was a mere ordinary or annual account of his administration. There was no prayer for acquittance and discharge as executor upon settlement with the heirs, as there would have been had he been rendering a final account to them upon the order of court on the demand to turn over the estate.

The wife’s share of the community property having been administered in the husband’s succession, and the executor having charged and received his commissions in full thereon in that succession, he can not be permitted to make another charge of two and one-half per cent, commission upon the same property, merely because of the fact that when the wife died the inventory taken in her succession included the same property. To sanction this would be to allow the executor five per cent, commissions on the wife’s share of the community property, when the law permits a charge of only two and one-half per cent, as compensation for his administration of such property.

Pull justice is done the executor when he is allowed two and one-half per cent, upon the total appraised value of the community property, plus two and one-half per cent, upon the value of the wife’s separate property, as shown on the inventory of her succession.

Therefore, treating these successions as one for the purpose of this decree, it is ordered and adjudged that the claim of the executor, H. H. Hall, for commissions in excess of thirty-six thousand four hundred and fourteen dollars and seventy cents ($86,414.70) be rejected and disallowed; that the judgments appealed from be amended so as to reduce his commissions in the two successions to that sum, and that, as thus amended, they be and are hereby affirmed, with costs of appeal to be taxed against the executor individually.

On Application por a Reheaeing.

H. H. Hall in propria persona, W. S. Parlcerson and Chas. J. Théard of counsel, on the application:

D. O. McOan died on July 27, 1893. By his last will he appointed his wife and H. H. Hall his testamentary executors. Mr. Hall, on July 31, 1893, alone qualified. He alone conducted the administration of the succession.

Mr. McOan’s estate consisted of his half of the community. The entire community was inventoried of the value of one million four hundred and fifty-one thousand six hundred and ninety-nine dollars and seventy cents.

The administration of Mr. McOan’s succession involved, legally and actually, the administration and settlement of the entire community and the ascertainment, through its liquidation, of the exact sum coming to Mrs. McOan, as surviving widow in community.

Mrs. Hester McOan, widow of D. O. McOan, died on July 1, 1894. By her last will she appointed H. H. Hall her testamentary executor. He qualified July 16, 1894.

The inventory of Mrs. McOan’s succession showed that it consisted of—

(а) Separate paraphernal effects. $8,858 60
(б) Her net one-half of community as determined hy liquidation in her husband’s succession. 711,826 92
Total. $715,685 42

On July 14, 1894, Mr. Hall filed an account of his administration as testamentary executor in the succession of D. C. McOan. This account, duly homologated on August 1, 1894, showed the net liquidated value of the community, to the one-half of which Mrs. McOan, or her succession, was entitled.

In the said account filed on July 14, 1894, in the succession of D. C. McOan,jMr. Hall charged and was allowed the regular executor’s legal commissions of two and a half per cent, on the entire amount of the community.

On July 10, 1895, Mr. Hall, as testamentary executor of Mrs. McOan, filed an account in her succession. On this account he charged his regular executor’s legal commission of two and a half per cent, on the entire amount of her succession.

The charge of the said commission on this account was made in the following terms :

From the balance of cash on hand in bant, as shown by the foregoing account, to-wit. $65 619 09
The executor will deduct his commission of. 17,892 03
Leaving cash on hand. $47,727 06

Mrs. Stempel, guardian, on July 22, 1895, filed an opposition to this account. She objected that—

“ The items charged as law charges and privileged claims are illegal, excessive, unreasonable and exorbitant, and the same are not lue and owing by this estate.”

This opposition of Mrs. Stempel, guardian, was regularly tried on November 22, 1895, and was dismissed. She was represented at the trial of this opposition by E. H. McOaleb, Esq., the counsel who represented her in the present appeal.

A suspensive appeal from the judgment dismissing her opposition was asked for by Mrs. Stempel, guardian, on December 9, 1895. But this suspensive appeal was abandoned.

On December 2, 1895, this court decided that the provisions in the wills of Mr. and Mrs. McOan directing Mr. Hall to retain under his administration and control the property bequeathed to Mrs. Stempel’s children until their majority, was void. The result of this decision was that it became Mr. Hall’s duty, -his administration as executor having terminated, to deliver the property of the two successions to Mrs. Stempel, guardian.

An application for a rehearing of the decision of December 2, 1895, on the wills was made, and was not refused until February 10, 1896.

On January 6, 1896, Mr. Hall filed an account showing the results of his administration of all the property contained in the succession of D. O. McOan and in the succession of Mrs. McCan. Due notice of this account was served on Mrs. Stempel, guardian, through her agent, Mr. Albert Baldwin. This account being entirely satisfactory to Mrs. Stempel, represented by her agent, Mr. Baldwin, Mr. Hall on February 12, 1896, turned over all the assets and cash of the two successions to Mr. A. Baldwin, as agent of Mrs. Stempel, guardian, with the understanding that the account should subsequently be homologated. The account was accordingly homologated on February 14, 1896, two days after Mr. Stempel, guardian, through her said agent, had been put in possession of all the assets of the succession, and of all the cash on hand remaining after deduction of the charges shown on said account.

•On the said account filed January 6, 1896, and homologated February 14, 1896, there was a charge in favor of Mr. Hall of ten per cent, on the amount of the revenues and income collected by him during his administration of the property of the succession. This charge was fourteen thousand six hundred and seventy-five dollars.

Not only was it impossible for Mrs. Stempel’s agent, Mr. Baldwin, and her attorney, Mr. McOaleb, to overlook an item of such magnitude, plainly stated on an account with which they were so well satisfied that they accepted it and settled on it two days before its formal homologation, but, as a matter of fact, they were informed of the intention to make the charge, and approved it before the account was filed.

On January 19, 1897, Mrs. Stempel, guardian, still represented by Albert Baldwin, as her agent, and E. H. McOaleb, as her attorney, took a devolutive appeal from the judgment of February 14, 1896, homologating the account which she had approved and accepted through her said agent and attorney.

This appeal does not allege that there is error in any item of the account, but only that there is error in the judgment homologat-ing the account.

The executor filed his final account, which was duly published. The heirs were cited. No opposition was made to the account, which was regularly homologated upon due proof, the legal representative of the heirs, as the record shows, participating in said homologation. No proof was offered by the heirs and no objection raised. Eleven months later the heirs appealed from that judgment and brought up to this court, not simply the account and evidence offered by the executor, but a transcript arbitrarily made up of any or all parts of three succession proceedings, no portion of which had been offered in evidence in the court below.

And this court took cognizance of the cause, and, upon issues and proof not raised or made in the court below, but first suggested in argument and brief and produced in this court, has rendered judgment against the executor for thirty-two thousand four hundred and forty-two dollars and eighty-two cents.

The executor asks for a rehearing and for relief from that judgment, because rendered in violation of the Constitution, which prohibits the Supreme Court from taking original jurisdiction. He asks this relief because, while appeals have been allowed to persons not filing oppositions, from judgments homologating accounts prematurely, or without evidence, this court has never entertained jurisdiction of such appeal, but has invariably remanded the cause for trial in the courts below. 29 An. 327; 28 An. 155; 48 An. 711; 23 An. 527; 20 An. 376; 29 An. 576; 39 An. 224.

Never in its history has the Supreme Court of Louisiana permitted a party who had not opposed an account to appeal from a regular formal judgment homologating that account, and to obtain, on appeal, relief which he had not asked below. 4 M. 222; 4 La. 300; 14 La. 237; 12 R. 157; 4 An. 475; 20 An. 86; 38 An. 832; 39 An. 474; 10 E. 118; 1 E. 385; 3 An. 664; 19 An. 488.

The executor is prepared to prove that the judgment appealed from was consented to and its execution acquiesced in. Whatever may be the legal effect of such proof, he should be allowed, in vindication of the perfect candor of his administration, to put this proof of record, and for that purpose he asks that the cause be remanded. Such has been the uniform practice of the court. 29 An. 576; 30 An. 224; 3 An. 115; 14 An. 329; 28 An. 272; 28 An. 743.

The court holds that, under no circumstances, can an executor who is not a tutor charge a commission upon rents and revenues not embraced by the inventories, and yet, in exactly similar conditions as prevailing herein the court recently allowed such commission. Succession of Robertson, Sr., 49 An., p. 81.

If that judgment be permitted to stand as law, then the executor in the succession should have the relief granted in that succession.

The opinion of the court on this application was delivered by

BLANCHARD, J.

We have gone over these cases a second time with great care, and find ourselves unable to reach, on any part of the ground, conclusions different from those already announced.

The proposition of the finality of the judgments of homologation, which, it is contended, deprive the minors of any right to question the charges for commissions has, perhaps, been sufficiently discussed in our original opinion. It is appropriate to add that the defence of res judicata, never admitted on doubtful grounds, is to be received with greater caution when urged against minors.

The charge of thirty-six thousand two hundred and ninety-two dollars and forty-nine cents is sustained by law. It is charged on the entirety of the community property already in the hands of the husband’s executor when the wife died, and in his hands for an administration which embraced within its scope her. residuary community interest.

We can not find sanction for the charge of another commission, in the wife’s succession, on her share of the community, when, confessedly, it was being administered in the husband’s succession, where •the full charge had already been made.

Our conviction remains unshaken that the charge of seventeen thousand three hundred and ninety-two dollars and three cents and that of fourteen thousand six hundred and seventy-five dollars— the last introduced for the first time on the accounts of January, 1896 — are both reviewable on this appeal, unless we can hold that judgments of homologation admit of no appeal, a proposition not capable of support.

It is to be observed, too, that these accounts comprise, in large part, receipts derived from investments for the minors by the tutor, and charges for such investments, as well as for his commissions. They are not the ordinary administrator’s accounts of debts of a succession, i. e., due by the deceased, their payment, etc., in reference to which our courts have had occasion heretofore to deal, in respect of the effect of homologation of such accounts. The executor himself claims to have stood in the relation of a trustee toward the minors — a trusteeship or quasi-tutorship attempted to be created by the wills. When rendered by tutors such accounts are but prima facie evidence. Throughout our law there is declared the purpose not to bind minors irrevocably by such accounts. C. C. 356; 10 La. 329; 7 R. 229; 1 H. D., p. 921, No. 3.

The analogy afforded by our legislation and jurisprudence on the subject of tutor’s accounts carry a suggestiveness in dealing with judgments of the character of those in question here, and our conclusion accords with the law, as well as with the spirit of that jurisprudence.

In the opinion heretofore handed down it must not be understood that any implied charge is intended that the executor had not discharged the trust imposed upon him with honor and fidelity.

His administration of .the affairs of the successions has not been questioned before us, and certainly no imputation upon the same is east by the court. The executor deservedly ranks high in character, standing and ability as a member of this bar and as a citizen. His overcharge of commissions resulted simply from a mistaken view of the law and of his rights thereunder, and from the impression he had formed that the legal representative of the heirs sanctioned the same.

Our view of the law differed from his; and we have felt it incumbent upon us to apply its provisions with strictness in a case involving the right of minors.

Rehearing refused.


source: Caselaw Access Project

author: Nicholls, C. J.

license: Public Domain

text:
    No. 12,439.
    Dr. C. A. Gaudet vs. Louise Dumoulin, His Wife.
    On Motion to dismiss.
    It is not necessary that the name of the clerk be inserted in an appeal bond. The bond made payable to the clerk of the Oiyil District Court and his successor in office is sufficient.
    On the Merits.
    Parole evidence is not admissible to proye title to real estate.
    APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Lauque & Pomes for Plaintiff, Defendant in Rule, Appellant.

      Clegg & Quintero for Defendant, Plaintiff in Rule, Appellee. ,
    Submitted on briefs May 14, 1897.
    Opinion handed down May 31, 1897.
    On the 11th of January, 1897, Mrs. Louise Dumoulin, wife of Dr. ■Gaudet, suggested to the court that she was separate from bed and board from her husband by judgment of court; that on the 18th of February, 1896, an order was issued by the court, decreeing the sale of certain real estate described therein; that the sale was made after due advertisement pursuant to the order; that the property was adjudicated to T. Gaudet, acting for Dr. O. A. Gaudet (her husband) ; that Dr. 0. A. Gaudet, through T. Gaudet, became the purchaser of the property for twenty thousand two hundred dollars; that said sum was due and payable by said Dr. 0. A. Gaudet, and should be ■deposited with the notary to whom the parties to the cause had been referred for a partition. Upon these suggestions, the court ordered that Dr. C. A. Gaudet show cause why he should not be ordered and compelled to deposit with the notary, Charles J. Théard, the purchase price of the property adjudicated to T. Gaudet for-the said 0. A. Gaudet at the auctioneer’s sale.
    The District Court, on trial of the rule, decreed Dr. C. A. Gaudet to be the real adjudicates and purchaser of the property sold at public sale under agreement of all parties to the suit and pursuant to •the order of court, of February 18, 1896, and ordering him to forthwith deposit in the hands of Théard, notary, the price and sum of twenty thousand two hundred dollars, being the sum bid by him in the purchase of the property referred to. Dr. 0. A. Gaudet appealed suspensively from this judgment, furnishing a bond for four thousand dollars, the amount fixed by the court.
    Appellee moved to dismiss the appeal, on the grounds that the amount of the bond was too small to sustain the same, the judgment being for the deposit of twenty-two thousand two hundred dollars, while the bond furnished did not exceed (as required bylaw) by one-half the amount of the judgment appealed from, and the appellant had only prayed for and only been allowed a suspensive appeal, and on the further grounds that the bond was not made payable to the proper person named by law; that it was not dated, and that it was. not executed before any competent authority in the presence of witnesses and was a mere private writing.
   On the Motion to Dismiss.

The opinion of the court was delivered by

Nicholls, C. J.

The amount of the bond furnished being that, fixed by the court would sustain a devolutive, if not a suspensive-appeal. The bond is made payable to the clerk of the Civil District Court and his successor in office. It is not necessary that his name be mentioned. The date of the bond is sufficiently fixed by the recitals of the bond and its filing in the District Court. It is not claimed that the signatures to the bond are not genuine. The fact that the bond did not per se prove that fact would not be a ground for dismissal.

The motion is denied.

On the Merits.

The object of the present proceeding is to force Dr. C. A. Gaudet to comply with the terms of an adjudication made of certain property by Curtis, auctioneer, on the 15th day of April, 1896, upon the ground that he and not Theodore Gaudet was the real adjudicatee of the property. That the property was adjudicated as a fact to Theodore Gaudet appears not only from the •prooes verbal made out by the auctioneer, but by the testimony of the auctioneer himself— that of Felix Loeb, who made the bid for the property, on behalf of Theodore Gaudet — that of Theodore Gaudet, and finally, by the rule taken by the appellee in this case upon Theodore Gaudet, wherein he is referred to as the adjudicatee and sought to be compelled to comply with his bid.

It is now claimed that Theodore Gaudet simply lent the use of his-name to his brother, Dr. C. A. Gaudet, and that the latter was the undisclosed actual purchaser. That fact was attempted to be shown by parol evidence. Evidence of that character was permitted to be received by the court over defendant’s objection and effect was given to it — the court, on that evidence, having held that the property was, in truth, adjudicated to Dr. Gaudet, and ordered him to comply with his bid as such. Defendant reserved a bill of exception to the introduction of this evidence. The effect of the judgment, if sustained, will be to substitute Dr. 0. A. Gaudet for Theodore Gaudet, as the owner of the property under the adjudication made by Ourtis, auctioneer.

Theodore Gaudet and Felix Loeb were placed on the stand as witnesses for the wife, and both positively declared that Theodore Gaudet, in purchasing, was acting on his own behalf. Theodore Gaudet was not made a party to this proceeding.

It would appear from the evidence that a cash deposit had been made for and on behalf of Theodore Gaudet, by Loeb, in che hands of the auctioneer on the day of the sale. That, subsequently, this deposit, or a part of the same, was withdrawn from deposit by Louque & Pomes, on their producing and surrendering to Curtis the receipt which he had given for the same. This fact coupled with the fact that they were the attorneys of Dr. C. A. Gaudet, and not of his brother, and with the statement made hy one of the attorneys of the appellee as a witness for the latter, “ that it was well understood between all parties at the time, that Mr. Theodore Gaudet, who appeared as the adjudicatee, did not represent himself, but represented Dr. Gaudet,” seems to have carried conviction to the mind of the court that the husband was the real, though his brother was the. ostensible adjudicatee of the property.

We are not called on to express any opinion as to whether the' conclusion reached would have been justified by the evidence had it. been legally received, for the reason that, in our opinion, appellant’s, objection to its reception should have been sustained. Appellee cites Peytavin vs. Hopkins, 5 Martin, 439, and Hall vs. Sprague, 7 Martin (O. S.), 243, as supporting the correctness of the court’s, ruling. The parol evidence permitted in the former suit to be introduced was to support the adjudication as made, and not to contradict it or alter its legal results as flowing from its recitals. The latter case was an action of a different character from the present. Plaintiff, in that suit, claiming that there existed fiduciary relations between himself and the adjudicatee, of certain property sold at. auction, which would make it illegal and improper for the latter to-hold the property adversely to him, sought to have the adjudication,, as made to the adjudicatee and as recited, enure to the benefit of the-plaintiff. It is not claimed or pretended here that there were any fiduciary relations between Theodore Gaudet and Mrs. Louise Dumoulin, which would entitle the latter to take and hold the property herself, as the real adjudicatee. She does not claim ownership of the property under the adjudication.

We think the rights of parties in this case are controlled by Hackenburg vs. Gartskamp, 30 An. 898; Perrault vs. Perrault, 32 An. 636; Heirs of Dohan vs. Dohan, 42 An. 449; Sagory vs. Bouny, 42 An. 618, and Whelage vs. Lotz, 44 An. 601.

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 plaintiff’s demand be dismissed, at her costs, in both -courts.


author: Breaux, J. Blanchard, J.

text:
    No. 12,443.
    Mary L. Genella and Husband vs. C. A. McMurray et als.
    This suit was brought to compel the defendant to take the title tendered.
    Many years prior to the adjudication of the property the tax deed pleaded by the defendant as having the effect of invalidating the title tendered, had been canceled and erased from the record.
    A rule on an administrator to cancel a tax title is as effective as any other process, if those in interest remain acquiescent for years after the judgment was rendered on the rule.
    It not appearing of record that there was an adverse title, the title tendered was legal.
    APPEAL from the Oivil District Court for the Parish of Orleans. Rightor, J.

      Jhouque & Pomes for Plaintiffs, Appellees.

      -James B. Rosser, Jr., for Defendants, Appellants.
    Submitted on briefs April 1, 1897.
    Opinion handed down April 12, 1897.
    Rehearing refused May 31, 1897.
   The opinion of the court was delivered by

Breaux, J.

This was an action brought by the plaintiff against the defendant to compel the latter to accept the title tendered.

The property the title to which was tendered, was adjudicated to the defendant by public auction.

The defendant declined to accept the title on the ground that the property was owned by the heirs of Joseph Holtz, and that, in consequence, no title passed by the adjudication.

The defendant avers that the property was acquired by the late Joseph Holtz on the 7th of May, 1884, at tax sale. The property had been assessed in the name of Joseph Billgery. A rule was taken by the administrator of his succession, on the administrator of the succession of Joseph Holtz, directing him to show cause why the registry of this tax title should not be canceled and erased.

The defendant contends that it was an illegality to proceed by rule to have the tax deed held by the succession of Joseph Holtz canceled and erased.

With this exception it appears that the title of plaintiff was legal in every respect, and a title which the defendant consents to take. The controversy is limited to the Holtz tax title, now canceled and erased.

The record before us does not disclose any irregularity which would justify the defendant in refusing to take title to the property.

The fact that the heirs of Billgery at one, time owners of the property, chose to proceed by rule against the administrator to erase and cancel a tax deed of record, would not, of itself render the judgment less binding upon the administrator of the succession of Holtz, and upon those he was in that capacity authorized to represent, if no objection to the mode of proceedings was made at any time.

The administrator could represent the succession with the assent of the heirs of Holtz. It was not brought to our knowledge that any of the heirs objected. To this day, they, at least, tacitly assent to the judgment.

A judgment appointing an administrator constitutes prima facie proof of his capacity to stand in judgment.

Years have elapsed since the judgment ordering the cancellation of the tax deed was rendered. As we appreciate the issues, the owners of the original title have remained in possession and no claim of any illegality was urged in the proceedings in which cancellation of an illegal tax deed was ordered.

The law, in our view, was complied with and the judgment ordering the erasure of this tax title was rendered, we think contradictorily with those in interest. This being the case, we have found, after examination of the record before us, no invalidity in the title tendered to the defendant.

It is therefore ordered, adjudged and decreed that the judgment appealed from, ordering the defendant to comply with the adjudication of the property described in plaintiff’s petition and condemning him to pay the price and interest, is affirmed.

ON Application nob Rehearing.

Blanchard, J.

Defendant complains that there is error in the judgment herein rendered, in this:

That it affirms the'judgment of the court a qua condemning him to take title and to pay eight per cent, per annum interest on the purchase price from the date of adjudication.

The property was adjudicated at public auction to defendant on November 15, 1893, for the price of two thousand three hundred and eighty dollars, upon “terms of one-third or more cash, balance in one or two years, secured by vendor’s lien, bearing eight per cent, per annum interest from date of sale until final payment.”

In Duruty vs. Musacchi, 42 An. 360—a case similar to the present one — it was held that defendant was not in default for non-payment of the cash portion of the price until the date of the judgment appealed from, and, therefore, owed interest from that date only. And on rehearing it was held that the court below had erred in requiring defendant to pay more than legal interest on the cash instalment, notwithstanding the act stipulated seven per cent, as the rate of interest on deferred payments.

Following the rule laid down in that case, we now hold that defendant is answerable for interest on the cash instalment of his purchase — one-third of the purchase price — only from the date of the judgment appealed from, February 1, 1897, and at the rate of five per cent, per annum.

It is pertinent to remark just here that the contention of defendant, in regard to overcharge in the matter of interest, was brought to the attention of this court only in the application for rehearing. It was not discussed or referred to at all in the original brief filed in his behalf.

It is now ordered that our previous decree herein be amended so as to charge defendant with five per cent, per annum interest on the cash portion of the purchase price — one third thereof, from February 1, 1897, and that as thus amended the judgment appealed from be ■affirmed at appellee’s cost.

It is farther ordered that our previous decree as thus modified remain undisturbed.

Rehearing refused.


author: Breaux, J.

text:
    No. 12,440.
    Monarch & Kaiser vs. Board of Commissioners of the McDonogh School Fund of the City of New Orleans.

      Extra Work. — Where a builder has contracted for a stipulated price to build, as required by an agreed plan and specifications, and it was expressly agreed that no charge would be made for extra work, unless it was executed under written authority, charge for extra work will not be allowed, it not having been shown that the proprietor agreed to the change.

      Approval of Agent. — Where the contractor with a municipal corporation agrees with the representative of the latter that the labor under the* contract and the material furnished shall be subject to the approval of one named to supervise the work, his statement as a witness must be considered, and have great weight, unless it clearly appears that it was erroneous or untrue.

      Under Special Ea-w Contractor May Annul Co?itract.~Theve was ground to annul the contract, besides, under special provision of the Code, applying exclusively to builders,.the proprietor may annul the contract, save that he must pay the damages occasioned by the annulment — that is, by paying the undertaker for the expenses and labor^incurred, and such damages as the nature of the case may require.

      Value of Work. — 'The amount stipulated in a contract voided may be used to ascertain the just value of the work performed.

      Consideration. — The amounts paid and those secured by lien, timely recorded, are equal to the value of the work and materials furnished.

      Implements or Value. — Eight reserved to compel return of tools left on the premises, or to pay their value.
    APPEAL from the Civil District Oourt for the Parish of Orleans. Monroe, J.

      W. S. Benedict and 3. O. Cage for Plaintiffs, Appellants.

      James J. McLoughlin, Assistant Oity Attorney (Andrew H. Wilson, of Counsel), for Defendants, Appellees.
    Argued and submitted May 13, 1897.
    Opinion handed down May 31, 1897.
   The opinion of the court was delivered by

Breaux, J.

Plaintiffs brought suit to compel the defendants to pay them the sum of eightthousand nine hundred and three dollars for work done, they alleged, under the original contract, and for one hundred and five dollars for extra work under a supplemental contract, covering such work, and, in addition, for the sum of two thousand three hundred and twenty-one dollars and ninety-five cents, for extra work not covered by any contract. They also sue for an additional amount of ten thousand dollars, for damages caused by the defendants’ violation of the contract. By these contracts plaintiffs bound themselves to make additions, alterations and repairs to school houses, numbered twenty-one and twenty-three (in the city of New Orleans) , in conformity with the plans and specifications prepared by the Oity Engineer. The work, it was stipulated in the contract, was to be executed to the full satisfaction of this officer. A clause of the contract provided that in case of any omissions from, additions to, or alterations of, the plans and specifications, during the progress of the work, it would be supplied; that they, the additions and alterations, would be acceded to and made without any attempt, on the part of the plaintiffs, at showing that they were imposed in violation of the contract. It was also expressly agreed that no charge would be made for extra work, unless it was executed under written authority. The time fixed to complete and deliver the work was October 19, 1895. The plaintiffs bound themselves to pay ten dollars a day, after that date, for every day the work remained not completed.

On the 18th of November, the school authorities entered into-the possession of school building twenty-one, although the work on that building had not been quite completed. It was afterward finished by the commissioners themselves, at a cost of about seventy-five dollars.

The further complaint was urged in court by the defendants-against the plaintiffs, that the material used was inferior in quality; that there were many unjustifiable delays on part of plaintiffs in matter of the work; that school building twenty-three was the only school building in Carrollton in which there are a large number of children attending the public schools; the parents were clamoring to send their children to school; to accommodate matters, the school authorities had the schools reopened in the body of the main building, which was not being repaired, but they were obliged to close them, for the reason that the incomplete state of the improvements rendered it impossible to continue with the school. On the 27th of November, 1895, the Mayor and Chairman of the Board of Commissioners of the McDonogh School Fund notified, in accordance with the direction of the board, the plaintiffs, that the contract was annulled. The commissioners took charge of the work and in eight weeks from the time they took charge the incomplete work was finished. One of the plaintiffs, as a witness, admitted that it would have taken thirty days for them to complete the work.

The defendants thus state their account:

Original contract of August 23, 1895. $8,903 00
Extra work, under contract of September 14,1895. 105 00
Total price agreed upon by plaintiffs and defendants. $9,008 00
Paid plaintiffs on account.$5,586 75
Paid plaintiffs unpaid labor bills. 478 15
Recorded liens, unpaid. 4,970 00
Paid cost of completing their contract. 4,935 00
Total. ■ 15,969 97
Deficit claimed by defendants. $6,961 97

The defendants also alleged, with reference to the publication of communication of the City Engineer to the Board of Oommissioners that it was “ privileged,” and only gave an account of the unsatisfactory condition of the plaintiffs’ work.

The judgment of the lower court rejected plaintiffs’ claim and dismissed the suit.

We inferred that the special claims for damages growing out of the annulment of the contract, and of preceding communications about the alleged failure of duty on the part of plaintiffs, are not insisted upon by them, and, therefore, we excluded all questions of damages from further consideration.

We also eliminated all questions in regard to extra work not covered by written agreement, for the reason that to allow for extra work nofc endorsed on the contract by the officer selected by the defendant, would be contrary to the conditions of the contract, from which we again quote: “No charge to be made for extra work, unless-previously covered by a written instrument.”

The maxim, we think, applies: “No one can come against his-own deed.”

With reference to the extra work done, the witnesses greatly differed.

The Oity Engineer testified that there was scarcely a necessity for a plan of the elevation proper, as the idea was to carry out the wings so as to conform proportionately, as nearly as possible with the building then existing; that nothing was said at first about extra work; that in course of the work he agreed with one of the plaintiffs about extra work, and drafted a second contract to cover this work. It is the contract of September 14, 1895, to which reference has. already been made.

He did, however, prepare plans and specifications, in order to assist in carrying out the contract; that the changes made were not to the disadvantage of the builders and did not add to the repairs they had bound themselves to make under their contract.

This brings us to plaintiffs’ claim for work under the contract and to a consideration of the grounds defendants set up for annulling it.

After having read the testimony, we were, in the first place, impressed by the fact that plaintiffs were perhaps unfortunate in having bound themselves to make the alterations and repairs required on two buildings for one lump sum for all the work when defendants took charge of the work.

The first building was nearly completed when the defendants took charge of the work, but the second, No. 23, if we are to judge from a photographic view before us, was in quite an incomplete state, although, as early during the work as September 17, the plaintiff contractors were notified of the desire of the School Board to open the school' in due time, and to that end attention was directed to the possibility of their executing designated part of the work which would take only-little time, but which would enable that body to meet the- expectation of parents and pupils by opening the school in the unfinished building.

It appears that the board was disappointed. The work was not done in time and in compliance with the request made; besides there is evidence showing that the brick and other materials used by these contractors were not such as they should have been.

But setting aside all the differences between the plaintiffs and the defendants save one, it is evident, in our judgment, that it of itself gave ground to annul the contract.

More than a month had elapsed since the date the work was to be delivered under the terms of the contract. Differences had arisen between the plaintiffs and the defendants. The delays and the inactivity in matter of the work had given rise to many complaints from the number interested in schools.

We are informed by the testimony that on the 25th of November everything was in an unsatisfactory condition; no one, while the witnesses were present on that day, was doing any work, a number of laborers were setting around, and others said that they desired to be paid before resuming work.

The Mayor, who was with the other officers at the building on the day just mentioned, states that the three walls of the addition were erected, ceiling joists were being hoisted up, but the "roof was not on, and in its incomplete state it could not be finished in less than five or six weeks.

In view of the facts, we are not inclined to question the right of the defendants to issue the order that was issued to the City Engineer to take charge of the work and complete it. It does, not appear that the plaintiffs offered the least objection to the order. The defendants took charge of the work without the least objection on the part of plaintiffs.

There was, we think, reason to bring matters to a close.

Moreover, under special articles one may cancel the contract with a builder. It is an exceptional right applying to special cases, but it is clearly expressed. It has been referred to as “novel in the provision of our law, thus giving a right to one of the parties to a contract to annul ad libitum.'’'’ Villalobos vs. Mooney, 2 La. 332. Nevertheless, the clear language of the Code has left no alternative save its enforcement. Goddart vs. Urquhart, 6 La. 658; Dufour vs. Janin, 8 La. 147; Loreau vs. Declouet, 3 La. 1; Joublanc vs. Daunoy, 6 La. 656; Crocker vs. Caldwell, 5 An. 220.

The contract was at an end after the defendant had given the required notice.

It remains for us to determine whether the defendants are indebted to the plaintiffs in any balance for work performed.

In our view whether the contract was annulled because the defendants had sufficient cause to annul it, or because defendants chose to avail themselves of the provisions of Art. 2765 of the Civil Code, without reference to any cause, the contractor should receive compensation for the value of his material and for his labor up to the date his contract is canceled. We applied ourselves to the task of establishing the amount. In the first place we took up for consideration the proposition of plaintiffs’ counsel that the value of the alterations and repairs, on each building was about equal, or four thousand four hundred and fifty-one dollars and fifty cents for each.

We inferred that the work on building twenty-one was of greater value. From the specifications we gather that a portion of the existing side walls were taken down in order to extend the wings. Foundations were laid for these wings; new supports, consisting of cast-iron columns resting on brick foundations were provided, also pilasters against.the wall with the usual brick foundation. The roof was a mansard, covered with slate. The contract included the brick, the lumber and the painting and all work needful to complete the building. The plan of the front elevation of itself suggested work réquiring skill.

We thought that the work and the material on building twenty-three, was not as valuable. Be this as it may, we grant that each was about of equal value.

After having deducted the amount claimed for the first building, less the amount paid by the city to complete it, of the amount paid and claims timely recorded, there remained a sum large enough to pay for the plaintiff’s material and labor on the last, i. e., on building twenty-three.

Adding the amount the defendants paid to complete the work to the amount paid by them to the plaintiffs, it showed an expenditure much larger than the amount which the defendants would have had to pay, if plaintiffs had completed their work under the contract. We have not found of record any evidence of the value of the work on this building. No inventory was made by plaintiffs at the time of work done, and no attempt was made during the trial to prove by experts the value of work and material at the date the contract was annulled. As to the latter we are not led to infer that any remained which proved a loss for plaintiffs.

We, therefore, felt justified, on the basis before stated, of work and material of about equal value on each, in the conclusion that the defendants were not indebted in an additional amount. The work of the defendants to complete the repairs was necessary, also the materials were necessary and the amounts expended for these reas - onable; at any rate, the plaintiff did not make the least offer to prove the contrary.

If we were to assume that one-half of the work had been done on the second building (twenty-three) at the date that defendant took charge, there would remain an amount sufficient from balances and sums before stated to compensate the plaintiff.

Moreover, the evidence shows that the repairs made by the defendant, due by the plaintiff in order for them to recover the whole amount as per contract, cost much more than the amount it required to complete the work.

The rule of law which we are compelled to apply in this case is an exception to the principle that contracts can be revoked only by the common accord of the parties to it.

Baudry-Laeantinerie, Vol. 3, p. 448, said: Mais P exception est facile a justifier, puisque celui, contre la volonté duquel la résiliation a lieu, non seulement est indemnisé de toute la perte que lui cause l’inexéeution du contrat, mais obtient en ofitre tout le bénéfice que lui aurait procuré l’exécution.”

In our judgment the indemnity before indicated was all that could be reasonably expected for material and labor performed.

Plaintiffs claimed for extra work and offered evidence to prove their claim. The officer selected by the plaintiffs and the defendants to supervise the work and see to its proper execution testified, with reference to extra work: “As to alterations at No. 23, there are none whatever to my knowledge.”

If there was extra work performed it was not authorized in writing by the corporation. The contract was left to bidders. We are not at liberty to change clearly expressed language contained in the contract drawn in accordance with the terms and conditions of the adjudication.

Plaintiffs, in special allegations of their petition, claim the value of certain tools, wheelbarrows, shovels, picks, which they used in performing their work under their contract, laid at seventy-five dollars.

The supervising agent of the defendant testified that he knew nothing of this property and was never called upon to deliver it; if there was such property, it is on the premises. The plaintiffs are entitled to the tools they left on the place, or their value. In the present condition of that claim we do not think we would be justified in rendering a judgment for their value. We, however, reserve to them the right to call for a return of these working tools, and in case they are not returned, to recover their value in a separate suit.

It is therefore ordered, adjudged and decreed that the judgment appealed from is affirmed at appellants’ costs, with reservation of the right just stated.


author: Miller, J.

text:
    No. 12,431.
    Francois Rough vs. The Lafargue Bros. Company, Limited.
    The party ■who receives payments from liquidators appointed by the court can not afterward call on the court to annul the appointments; no reservation in the receipts will entitle him to demand of the court the annulling of the appointment of the liquidators recognized by his participation in the fruits of their administration.
    A PPEAL from the Civil District Court for the Parish of Orleans, ^ *■ Righior, J.

      John B. Fisher for Plaintiff, Appellee.

      Frank N. Butler for Russman & Galland, Plaintiffs in Rule, Appellants.

      J. Numa Augustin and W. J. Wagnespaek for Liquidators of the Lafargue Bros. Company, Limited, Defendants in Rule, Appellees.
    Argued and submitted April 1, 1897.
    Opinion handed down April 26, 1897.
    Rehearing refused May 31, 1897.
   The opinion of the court was delivered by

Miller, J.

The appeal is by creditors of this corporation from the judgment of the District Court dismissing their rule to set aside the appointment of the liquidators of the corporation.

The appellees, judgment creditors of the corporation, issued garnishment process and caused interrogatories to be served on the debtors of the corporation. The liquidators appeared in the United .States Circuit Court, in which the appellees obtained their judgment, ■and moved to dissolve the seizures on the ground that the liquidation was in the District Court, and no seizure could be maintained under the process of the Circuit Court. The seizing creditors attacked the appointment of the liquidators, and the Circuit Court, appreciating the comity between courts, declined to pass on the question as to the appointment of the liquidators, referred the issue to the District Court, in the i meantime staying the decision on the creditors’ right to attach the corporate assets. Thereupon the creditors proceeded by rule in the District Court to have the order for the appointment of the liquidators revoked. From the judgment dismissing the rule there was a previous appeal, on which we remanded the case (Rougé vs. Lafargue Bros., 47 An. 1646), and the plaintiffs in rule now appeal from the judgment of the District Court again maintaining the appointment.

The appointment of the liquidators in this case was made on the petition of a creditor containing the allegations he deemed material to authorize the relief. The corporation was cited and answered, accompanying the answer with the resolutions of the shareholders’ meeting, reciting the pecuniary embarrassment and inability of the ■corporation to continue its business for want of means and credit; that its debts were due, unpaid suits threatened, one already brought —i. e., that of the appellants in the United States Circuit Court, another for the appointment of a receiver, and the resolutions declaring the necessity for a liquidation stated the selection by the meeting of the liquidators, the appellees, and recommended their .appointment by the court as receivers and liquidators. Their .appointment by the court followed in December, 1893, they qualified, entered on their duties, have realized and distributed to creditors a large amount of proceeds, and it is stated in the briefs the liquidation is about ended. The appellants in this case begun their garnishment proceedings in the Circuit Court in March, 1894, and they attacked the appointment of the liquidators in April. After making this attack, the record shows that the appellants have received from .the liquidators five successive payments on their debt.

The rule to set aside the appointment of the liquidators alleges the insufficiency of the notice of the meeting of creditors, at which the liquidators were selected; that only three thousand and sixty-nine of four thousand two hundred and eighty-seven of the total shares were represented at the meeting; that the charter providing for commissioners in case of the dissolution and the corporation not being dissolved, there was no power in the meeting to elect liquidators; the further allegations are made that the assets of the corporation were not abandoned; that its officers were in the exercise of their functions, and the court had no jurisdiction to make the appointment. The answer to the rule maintains the jurisdiction of the court to appoint, avers that the appointment was made contradictorily with the corporation in the suit brought by the creditors, after citation, answer and hearing; that the basis for the appointment existed, and that the entire proceeding was in accordance with the method sanctioned by the decisions of this court, in which connection reference is made to the Louisiana Savings Bank Case, 35 An. 196, and, in addition, the answer avers that the appellants, having received five successive payments from the liquidators, are now estopped from disputing their appointment.

There has been an'elaborate argument in this court as to the jurisdiction of our courts to appoint receivers for insolvent corporations. It is claimed by appellants that the bank case (Louisiana Savings Bank, 35 An. 196), in which the appointment of liquidating commissioners was sanctioned, differed from this, because the act creating the bank provided for the election of liquidators. Still, the act did not increase in any manner the power of the court, and as all know the statutory • basis for the jurisdiction exerted by our courts, in appointing receivers, is very narrow. In answer to the objection of the insufficiency of the notice of the meeting at which the liquidators were selected, and the other objection as to the votes cast, it is urged that notices concern shareholders, not creditors, that the meeting waived the fuller notice fixed by the charter, and no shareholder complains of the administration of the liquidators now, after three years about ended. The appellees insist, in argument, that the suit, the citation, the hearing and showing, all furnished the basis for the appointment within the jurisdictional power of the court, and insists on the estoppel of payments received by the appellants from the liquidators, whose appointment the appellants seek to assail.

We do not think we are at liberty in this case to review the’ grounds on which the District Court made the appointment of the liquidators. That our courts have the jurisdiction to make such appointments, if the proper basis exists, must be conceded. Stark vs. Burke, Watt & Co., 5 An. 740. Can we set aside this appointment on the application of the appellants? They stand here challenging the jurisdiction of the lower court to appoint the liquidators with the record before us, that, beginning in 1894 down to 1896, they have received payments from the liquidators, under their accounts filed by them as officers of the court. It is true that the attack on their appointment preceded the payments. The appellants had their choice of whatever rights their attachment in the Circuit Court conferred and to their proceeding to set aside the appointment of liquidators or, with all other eredtors, take the dividends accruing from the administration of the liquidators. The appellants insist they were not obliged to make this choice, but they could participate with the other creditors in the dividends available by the administration of the liquidators, and then call on this court to declare illegal the appointment and the administration based on it. It seems to us the appellants are bound by the appointment they recognized, and by the administration in the advantages of which they have shared. It is quite true the appellants, in receiving their payments, reserved the right to set aside the appointment, but, in our view, no such reservation can alter the opposition of a litigant before the courts, so as to entitle him to claim relief against an appointment by the court when the record shows his recognition of the appointment and participation in its fruits. No reservation is effective to do away with the legal consequence the law attaches to an act. Succession of J. Y. de Egana, 18 An. 59. We think the estoppel urged by defendants in rule must be maintained.

Controlled as we think the decision is by the estoppel, we express no opinion on the questions as to the legality of the appointment, or as to the basis on which the court made the appointment.

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

Nicholls, C. J., dissents.


author: Blanchard, J.

text:
    No. 12,293.
    Leon Joubert vs. Mrs. Susan A. Sampson.
    A wife was authorized by the judge to contract a loan and to mortgage her separate property. Her husband joined her in the act, aiding, authorizing and assisting her. The mortgagee subsequently brings suit to subject the mortgaged property to payment of his claim. The husband intervenes, contesting the wife’s full ownership of the property mortgaged and averring his superior right over the seizing creditor to be paid out of the proceeds of her interest in the property on a claim of his own: Held — He can not be heard to deny the creditor’s right to collect his debt. His participation in the act of mortgage effectually estops him.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      A. J. Villeré for Plaintiff, Defendant in Intervention, Appellee.

      TV. S. Benedict for Defendant and Intervenor (Intervenor Appellant) .
    Argued and submitted April 28, 1897.
    Opinion handed down May 31, 1897.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff, a mortgage creditor, proceeded to the •collection of his claim via executiva, and the property hypothecated was advertised for sale.

Some ten days prior to the sale, Thos. H. Sampson made himself a party to the proceedings by filing a petition of intervention and third opposition, and it is with him alone that plaintiff has to deal in ¡this controversy. He set forth averments upon which was based a ¡prayer that the order for seizure and sale be set aside, or, in the ¡alternative, that the sale be restricted to an undivided one-third interest in the property, and, as to this interest and its proceeds, he be decreed to have a lien and privilege superior to that of plaintiff. He made no effort to stop the sale by injunction. It took place, and the property was adjudicated to the plaintiff for five thousand two hundred dollars — a sum about sufficient to pay the debt with costs.

Later the case came on for trial on the intervention and third opposition. There was judgment rejecting the demand of intervenor and dismissing his suit. He appealed, and in this court he was met by a plea of prescription filed here by appellee. The prescriptions tendered were: 1. That of five years under O. C. 3542, barring demand by forced heirs for reduction of excessive donations. 2. That of ten years relating to inscription of mortgages.

Whereupon, on motion, the case was remanded for the sole purpose of trying the plea of prescription. It was tried and judgment was rendered sustaining it, and dismissing the intervention.

Intervenor again appeals.

He is here, therefore, with two judgments against him — one rejecting his demand on its merits; the other rejecting it as barred by prescription.

The facts pertinent to the inquiry are these:

William R. Crane died in 1883. He left a last will and testament, olographic in form, which named his wife, Susan Ann Sauffiy, universal legatee and executrix. The will was admitted to probate, the executrix was ordered to be confirmed, and she took the oath of office. No letters of executorship, however, appear in the succession record, and no inventory is found there, though there is an order for one.

At his death Crane owned the property subsequently mortgaged to plaintiff, Leon Joubert, situated on Annunciation and Market streets, New Orleans, and one other piece of real estate situated on Constance street. He had acquired this property long prior to his marriage with Susan Ann Sauffiy. He left as issue of his marriage with her two sons and a daughter. The oldest son, Jas. W. Crane, of age, died the year following his father, unmarried and iütestate.

His succession was opened; his mother and surviving brother and sister accepted the same as his heirs, and were put in possession of his property.

The other son and daughter, also of age, while forced heirs of W. R. Crane, took no steps to assert their rights as against the will of their father, which had instituted their mother his universal legatee. On the contrary, they did more than acquiesce in the terms of the will — they appeared, in 1885, before a notary public and two witnesses, and executed an act referring to themselves as forced heirs, yet recognizing the will and its probate, and renouncing all claims, to any part of the property left by their father in favor of their mother, especially investing her with the full ownership thereof. Prior to this,, the widow of W. R. Orane had become the wife of Thos. H. Sampson, intervenor herein, and the;daughter, Sarah Elizabeth Orane, had become the wife of John Ermon, who joined in the act of renunciation aforesaid, authorizing his wife.

Four years later, in 1889, the widow of W. R. Crane, then Mrs. Sampson, and authorized by him, filed a petition in the succession of her deceased husband, asking to be recognized as universal legatee and put in possession of all the property left by W. R. Orane at his death. A decree to this effect was entered, and the same was registered as a muuiment of title in the conveyance office. This ended the succession of W. R. Orane.

In 1891 Mrs. Sampson appeared before one of the judges of the Oivil District Oonrt and obtained from him an authorization to contract a loan of money and give a mortgage to secure same, and, thereupon, executed the note and mortgage declared on in this suit. The act of mortgage recites she is assisted and authorized therein by her husband, Thos. H. Sampson, and he signs the act as well as the note with her, in token of such authorization. It also recites that the property mortgaged was acquired by Mrs. Sampson as universal legatee of her deceased husband, William R. Orane, and refers to the judgment of the District Oourt recognizing her as such legatee. It further stipulates that should the note not be paid at maturity, she, the mortgagor, authorized the holder thereof to cause all and singular the property hereinbefore described and mortgaged to be seized and sold,” etc.

And, lastly, it recites that, as per certificate annexed, there were no mortgages affecting the property, except an inscription for drainage taxes and another for city taxes.

Notwithstanding all this, when the holder of the note, who is the original mortgagee, brings this suit against the wife to enforce payment of the debt, Sampson, the husband, a party to the aforesaid mortgage and to the wife’s application to the court in the former husband’s succession, to be recognized as owner and to be put in possession of the very property mortgaged, intervenes in the suit contesting the wife’s full ownership of the property, and averring his superior right over the seizing creditor to be paid out of the proceeds thereof on a claim of his own.

Considering his connection with the transactions referred to the proposition he thus advances is somewhat unique.

The claim he asserts is based upon these facts: When William R. Orane died he owed a mortgage indebtedness to the Citizens Bank upon the real property he owned. In 1885 his widow, who meanwhile had contracted marriage with intervenor, offered the bank a compromise settlement of its claims, which the bank accepted and a notarial act of compromise and settlement was entered into. The bank’s claims were settled for six thousand dollars; which were paid, releases of the mortgages were obtained, and the bank reconveyed to Mrs. Sampson title to the property which it had acquired at tax sales thereof. Sampson himself was a party to the act of compromise, release and conveyance, appearing therein as assisting and authorizing his wife.

It is not recited anywhere in the act that Sampson advanced the money out of his own funds to effect .this settlement with the bank, nor is he referred to therein in any way as having or to have any claim in or on the property in any respect.

On the contrary, it is distinctly averred that Mrs. Sampson offe g d to settle by compromise the liabilities of her dead husband to the bank, and the six thousand dollars was received by the bank “ in full payment, settlement and liquidation ” of the indebtedness, and then and there the bank formally granted “ a full, complete and entire release ” of the mortgage, and gave authority to the Recorder of Mortgages to cancel and erase the same on the records of his office.

All this clearly and absolutely negatives the idea that any transfer or subrogation of the bank’s claims and mortgage to Sampson, the husband, was intended or was made.

It was on this same day, however, and before the same notary, that Benjamin P. Orane and his sister, Mrs. Ermon, children and forced heirs of W. R. Orane, deceased, appeared and executed in favor of their mother, Mrs. Sampson, the act of renunciation of their interest in their father’s succession, hereinbefore referred to. After reciting in the act that their intention was their mother should have and enjoy the property “in full ownership,” it was set forth that they were aware the obligations resting on the property in favor of thp Citizens Bank, and certain other obligations resting thereon in favor of the city of New Orleans, had “ been wholly paid, settled and liquidated, and the said property released ” from the mortgage of the bank and the tax privilege of the city, with money furnished by Thos. H. Sampson. Recognizing their obligation to Sampson for this, they proceeded in the act to bind themselves, in the event of their mother’s death, to make no claim to the property as forced heirs of their mother, until the whole amount paid by Sampson, as above, had been reimbursed to him.

Neither the bank, the city, Mrs. Sampson, nor her husband, were parties to this act.

By no possible rule of reasonable construction can anything said or done therein be interpreted as preserving to Sampson and keeping alive in him as subrogee the claims and mortgage of the bank and the tax privilege of the city. It is beyond dispute that the intention of all parties was these debts were to be considered settled in full. If Sampson did not give the money outright to his wife to lift these incumbrances on her property, the most that can be claimed for him is that he advanced it to her for the purpose as an ordinary loan, which she may still owe him — a loan to which the mortgage and privilege creditors were parties or privies, and in respect to which they consented to no subrogation, nor did that from which subrogation results under the law. O. 0. 2160.

After these old claims are paid in full, as recited, after the mortgage and privilege securing the same have been canceled on the records by direction of all parties, without any reservation whatever in Sampson, and after he has appeared with his wife in an act hypothecating part of the property, thus unencumbered, to the plaintiff, it would be remarkable indeed if he could be heard in a court of justice to deny plaintiff’s right to collect his debt.

Nor is there any doubt or uncertainty as to the law governing the case. The doctrine of estoppel applies. It has been held that where a husband joins and authorizes his wife in the execution of a mortgage on her separate property, he can not afterward, when the mortgage is sought to be enforced, set up by way of defence that the property mortgaged was community property and the wife was without authority to encumber it. Having signed the mortgage himself he can not be permitted to deny or gainsay his own solemn act. Stewart vs. Robinson, 23 An. 83.

One who by silence, when it was his duty to speak, decoys another into particular conduct, can enforce no advantage thereby acquired. Meux vs. Martin, 5 An. 108.

Applying the doctrine announced in these authorities to the case at bar, it is clear that the pretensions of the intervenor can not be sustained.

This view renders it unnecessary to decide the question of prescription raised in the case.

Newman vs. Cooper, 46 An. 1485, relied on by intervenor, has no applicability as an authority to the facts of the instant case, and if it did have, the present case comes directly within the exception set forth on page 1491 of the reported decision of the case.

The intervenor here did “some act which operated an inducement to the plaintiff to alter his previous position and accept defendant’s mortgage.”

Judgment affirmed.


text:
    No. 12,536.
    State of Louisiana vs. Elijah Thornton.
    An accused, desiring to secure the attendance at his trial of witnesses-in another parish, must, in his application for subpoena, state tile parish where such witnesses reside.
    f he names the wrong parish, having had previous information of the parish wheretlie witness then was, it is not error, when the case is called for trial, to deny his application for further time to serve the subpcena.
    The question -where a forging actually occurred, in what parish, if in disputation, is one of fact for the jury.
    A PPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.

      M. J. Cunningham, Attorney General, and J. P. Madison, District Attorney, for Plaintiff, Appellee.

      C. Newton, Prank Vaughan and Percy Sandel for Defendant, Ap - pellant.
    Submitted on briefs June 5, 1897.
    Opinion handed down June 14, 1897.
   The opinion of the court was delivered by

Blanchard, J.

Defendant was indicted.for the forgery and uttering of a check for twelve dollars. The jury that tried him rendered this verdict:

“We, the jury, find the accused guilty of forgery; we do not find him guilty of uttering the forged instrument, and ask for him the extreme mercy of the court.”

From a sentence of two years at hard labor he appeals.

Three bills of exception assigning errors appear in the record.

It seems that the accused was tried twice at the same term of court, each time for a different case of forgery. This appeal is from the result of the second trial. The first case was tried on the 22d of April last (1897), and second case on the 28th of April.

The accused caused a subpoena to issue in the first case on the 16th of April for a witness named Jeff. Williams, whom he averred, in his affidavit for the issuance of the subpoena, to be a resident of Winn parish.

On the 19th of April the sheriff of Winn parish made his return on the subpoena to the effect that the witness was no longer in Winn parish, and that he had removed to Union parish.

What the result of the trial of the first case was we are not informed.

The indictment in the second case was filed April 24. On Monday, the 26th, the accused was brought into court from prison, was arraigned and pleaded to the indictment. His case was then set for trial for Wednesday, the 28ch. On the 27th, the day previous to the trial, he made application, with affidavit, for subpoenas to the same witness, Williams, and one other whom it is not necessary further to refer to, since no sworn averment of the materiality of his testimony was made when the case was called for trial and who does not figure in the bills of exception.

The prisoner himself was a resident of Winn parish, and in his affidavit accompanying the application for subpoena for Williams, he alleged the latter to be a resident of Winu.

He ignored the return of the sheriff of Winn parish made on the 19th of April, in the first case, that Williams had removed from Winn to Union parish.

There was no application to subpoena Williams in Union parish.

The judge granted the application made on the 27th for subpoena for the witness Williams, “ a resident of Winn parish,” and it issued.

The sheriff of Winn, happening to be in Ouachita parish and at the court house, at once made the same return on the subpoenas in the second case that he had made on the 19th, in the first case, viz.: that Williams had removed from Winn parish to Union parish.

On the 28th the case was called for trial as per previous assignment. Defendant’s counsel first asked for time to have the subpoenas served upon his witnesses, Winn parish being some eighty miles away and the subpoenas having issued the day before. This was denied and the denial forms the subject of the first bill of exceptions. The judge gives as his reason for so ruling the fact that the witness Williams had been summoned upon the former trial of the accused, in a different case, and the accused had been apprised by the sheriff’s return in that case that the witness was not in Winn parish, but had removed to Union parish, and that he should have sent his last subpoena to the latter parish.

This ruling of the court was not erroneous. The accused’s application for a subpoena to Williams should have named the parish where he then was, instead of the parish where he formerly resided. It would be otherwise did it appear that he was not aware of the removal of the witness to Union parish. But he did not know this fact — had been officially apprised of it by the sheriff’s return in the former ease. State vs. Williams, 36 An. 854.

Defendant’s counsel then filed a motion to continue the case on account of the absence of the witness Williams, making affidavit to the materiality of his testimony, etc.

This motion was likewise overruled, the judge considering it as resting on the same grounds as the first, and was denied for the same reasons.

We are not prepared to say this was error. This court has frequently signalized its indisposition to interfere with the large discretion necessarily confided to trial judges in matters of continuance.

It is only in cases where such ruling is manifestly arbitrary and unjust that relief will be given. State vs. Primeaux, 39 An. 673.

The third and last bill of exceptions was taken to the ruling of the court in the matter of the testimony of the witness Henry Bernstein, called for the State. He was asked if he ever saw defendant write, to which he answered that he had only once, and that after he was under arrest on this charge. He also stated he had never seen defendant sign his name, nor had he seen him draw and sign the forged check. Following this witness was asked by the State if the writing in the body of the check was not, in his opinion, the writing of defendant. To which question and answer thereto defendant objected for the reason it was not shown that the witness was competent to give an opinion on this point, having seen the accused write only once and never having seen him sign his name. The objection was overruled on the ground that it went to the effect and not to the admissibility of the testimony, which, the judge adds, he stated to the jury at the time.

There was no error in this. Rice ob Evidence, Sec. 196, p. 341.

Besides, as the accused was charged with writing, not his own name, but that of another, we are unable to appreciate the force of his objection that the witness, Bernstein, had never seen him write or sign his name.

Defendant’s counsel, in their brief, make the further point in behalf of the accused that the check, for the forging of which he was convicted, was drawn in Winn parish; that it was uttered in Ouachita parish, and that since he had been acquitted of the charge of uttering and convicted only for forging, the conviction.in Ouachita parish for forging committed in Winn can not stand. They insist this question could not be raised until after the jury decided, and they now present it for our consideration.

No written assignment of error covering this point was filed in this court.

It is true the question could not be raised in the court below until the jury had decided, but it could be then raised in a motion for a new trial, and certainly in arrest of judgment.

No motion in arrest of judgment was filed, and that for new trial set forth only in general terms that the verdict was contrary to the law and the evidence.

While the forged check, as copied in the bill of indictment, bears the date of Winfield, La., Feby. 17, 1897,” this does not show it was so actually written in Winn parish. It might have been so written in Ouachita parish, and the place where the forgery actually occurred, if in disputation, was a question of fact for the jury. State vs. Foster, 8 An. 290.

This court will not review the evidence in the record to determine whether the venue of the crime was proved or not. State vs. Tanner, 38 An. 307.

Judgment affirmed.