author: BeRmudez, C. J.

text:
    No. 9030.
    Succession of Henry Escarraguell.
    The mortgages in existence against heirs at the time of the opening of a succession in their favor, are no impediment to the sale, free from the same, of real property judicially ordered, to be sold to pay the debts of such succession, under regular administration. The creditors are referred to the proceeds.

      Evidence of tlie existence of such mortgages in favor of minors is properly excluded on a note against a purchaser to compel compliance with the adjudication made to him of such property
    "Where the title tendered is free from any incumbrance and otherwise such as the adjudicates ifc hound to accept, the judgment ordering compliance will not he disturbed.
    APPEAL from the Civil District Court for the Parish of Orleans. Moivroe, J.

      Jb\ D. Chrétien for Plaintiff and Appellee.

      Sambola <& Dueros for Defendant and Apf)ellant.
   The opinion of the Court was delivered by

BeRmudez, C. J.

This is an appeal from a judgment condemning a purchaser to comply with the adjudication of the only piece of real estate belonging to this succession, and therein ordered to be sold to pay debts.

The defense to the title tendered is, that the share inherited from the deceased by the father and proposed to be sold, is incumbered with a general mortgage in favor of his minor children against him as their qualified tutor.

The facts are not disputed. Henry Escarraguell died intestate, indebted, but solvent, leaving as his sole heirs his father and three brothers, one of whom is of age and the other two minors, having their father as their confirmed tutor by nature.

The father was appointed administrator of his succession. On a proper showing to the court that the succession was indebted for at least $2500,-mostly to the vendor of the real estate, he obtained an order of sale of that property, -which on being offered, was adjudicated to one Pico for $3400, payable in cash.

In order to give a clear title to the purchaser, a rule was taken and made absolute for the cancellation of the inscription in favor of the holders of the vendor’s notes, relegating them to the proceeds of sale.

The purchaser declining to accept the title, a rule was taken against Mm to show cause -why he should not be made to comply.

On trial of this rule, the purchaser offered to introduce in evidence a certificate of mortgage against the father, showing an inscription in favor of his two minor children, dating anterior to the death of Henry Escarraguell, the recited mortgage resulting from his confirmation as their natural tutor, to secure eventually the sum of $1356.

On objection to the admission of this certificate, on the ground of irrelevancy, the court refused to permit its introduction. To this ruling a bill was reserved, the certificate being annexed as part.

The objection was well founded, and the district judge ruled correctly in excluding the evidence offered.

The object which the purchaser had in view was to show that the undivided fourth in the real estate inherited by the father, became from the moment of the death of his soji, affected with a general mortgage in favor of his minor children, and that although the incumbrance could not prevent á sale of that share, Ms portion could only pass cim onere.

In support of that position, it is claimed that a general mortgage in favor of minors on the real estate belonging to their natural tutor cannot be removed otherwise than by a special conventional mortgage, and that, until thus removed, it continues to attach and follows the property in the hands of the purchaser.

Whatever the law be in such cases, it is clear that, where a person dies indebted and his estate is placed under a regular administration for a liquidation, the property which he has left vests in Ms succession. It must be sold to meet his liabilities, and it' is not until after the same have been satisfied and after the heirs have accepted and been put in possession, that they can claim to be the absolute owners of the residue and that mortgages recorded against them at the opening of the succession can become operative. Until then, the effect of thoáfe mortgages is suspended.

An acceptance under benefit of inventory, such as the law makes in favor of minors, or such as heirs of age may make for themselves, is not the unconditional acceptance which vests title in the heirs to property inherited by them and which becomes absolutely theirs after a thorough and final administration and liquidation of the succession of their author.

Although the heir who accepts with benefit of inventory be really the lawful heir and true successor of the deceased, the effect however of the benefit of an inventory is to make him appear in the eyes of the creditors and legatees of the succession, rather as administrator of the estate than as the true heir and proprietor of it. Domat, Lib. I, t. n. 1, §§ 1, 2, 14; 8 L. 411; 4 M. 57; 12 M. 364;' 9 L. 142; 7 L. 312; 7 R. 24; 10 R. 457; 12 R. 41, 323; 17 A. 41; 21 A. 566; 28 A. 859; 27 A. 352.

It is upon this principle that it has been held time and again that property belonging to a succession, under admimstration, in which there are minor heirs or other beneficiary heirs, can be sold to pay the debts and charges without consulting such heirs and regardless of the law which requires that the property of minors shall not be sold for less than the appraisement thereof in the inventory.

If such was not the case it would he impossible to sell the real estate of an indebted succession, under administration, where there would exist general or special mortgages inscribed against the heirs.

The mortgage registry in favor of the minors can no more embarrass the sale and free transfer of the property than it could have done had the holder' of the unpaid vendor’s notes proceeded to seizure and sale, or hacl tile property realized exactly the amount needed to pay those notes and the other debts of the succession. For the purpose, of such sale and transfer, the administrator represents the creditors and exercises for their benefit all the rights which they could have asserted and enforced.

The mortgages attaching to the property arc, ex necessitate, referred to the proceeds of sale, which are paid to the administrator, who is, as such, responsible for a proper application of the same.

There is in the re,e,ord an answer to the appeal, praying for damages, as for a frivolous appeal. We notice it merely to refuse it. The matter brought up for review was important and deserved consideration.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 9040.
    The State of Louisiana vs. Sylvester Miller.
    This Court, under its limited jurisdiction in criminal matters, can only review the ruling of the district judge refusing to grant a new tiial — -the motion therefor involving mixed questions of law and fact — when a hill of exceptions is taken to such ruling, and the .evidenceintroduced on the trial of the motion is embodied in the hill or annexed and made part of it. !Nor can the omission he supplied or cured hy filing in this court an assignment of errors founded on the same grounds and referring to the same evidence. If the new trial is applied for on the ground of newly discovered evidence in the absence of any affidavit from the witness designated in the motion, as to the facts expected to he proved and annexed thereto, the motion will not he considered. Kor when it is apparent that there was a want of diligence in procuring the testimony.
    A motion in arrest of judgment must he based on substantial defects in the indictment or irregularities in the proceedings, patent on the face of the record — evidence aliunde to support it not admissible. ,
    A ‘ PPEAL from the Sixth Judicial District Court, Parish of Morehouse . t\. Brigham, J.

      J. 0. JSgan, Attorney General, for the State and Appellee.

      Newton <b Hall and J?. Vaughan for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was convicted of shooting with intent to commit murder, and was sentenced to four years imprisonment at hard labor, and from this sentence appeals.

1. We find in tlie record a motion for a new trial. Besides the averment that the vei'dict of the jury was contrary to the law and evidence, the motion sets out. the incompetency of the jury by reason of the term of this court at which the accused was tried being a final term and not a jury term ; certain irregularities are charged in the orders of the judge calling the term and want of proper notice, etc.

This motion was overruled. There was a bill of exceptions tallen to this ruling.

Under the earlier decisions touching the constitutional limitations confining the jurisdiction of tlie court to questions of law only, it was held that this Court was without power to review matters of fact appearing or introduced upon a motion for a new trial.

The present Court has departed from that rule to the extent, that where the motion presents mixed questions of law and fact, and a bill of exceptions has been retained to the overruling of the motion, and the evidence offered on the trial of the motion is embodied in the bill or annexed thereto, we would consider and determine it, but that in the absence of such conditions, we would not and could not do so under ourlimited powers. State vs. Redd, 32 A. 819; State vs. Nelson, Ib. 842; State vs. Ross, Ib. 854; State vs. Hudson, Ib. 1052. To this rule thus announced, we shall inflexibly adhere. This disposes of the motion for a new trial.

2. There is also a motion in arrest of judgment, based upon the identical grounds contained in the motion for a new trial. Inasmuch as the principle is elementary, that such a motion must be founded on some substantial defect in the indictment or in the proceedings of the prosecution under it, patent on the face of the record; it is evident that this motion in arrest is also excluded from our consideration. Whart. on Crim. Law, sec. 4043; 15 A. 185; 30 A. 91; 32 A. 526.

Nor can counsel alter or evade the rule by filing in this Court an assignment of errors, dependent entirely for its support on evidence— real and documentary — offered on the motion for a new trial, and as stated, not embodied in, attached to or accompanied by a bill of exceptions.

Unless the proceeding- of the lower and the issues raised thereby are properly presented to this Court, we are powerless to grant relief, or to consider even the arguments and reasons urged therefor.

3. There was a second or supplemental motion for a new trial, based upon alleged newly discovered evidence.

In the absence of an affidavit of tlie witness designated in the motion and annexed thereto, confirming or supporting the allegations thereof, and considering- too tlie pendency of tlie prosecution for months before the trial, and the fact stated by the district attorney in his brief, and not denied, that the witness lived in the same town with the accused, and had been summoned by the State, and that her name appeared on the back of the indictment as such witness; we must conclude that the discretion of the trial judge was soundly exercised in refusing the motion.

Judgment affirmed.


author: Fenner, J.

text:
    No. 9080.
    The President and Board of Church Wardens of the Roman Catholic Church of Ascension et al. vs. The Right Rev. N. J. Perché, Bishop, et al.
    Appeal lies from order of judge a quo rescinding bis former voluntary recusation against tlxe protest of a party, and after tlie recusation lias been acted upon. Such order of rescission is illegal.
    APPEAL from the Twenty-second District Court, Parish of Ascension. JUcurhcurt, J. ad hoe.

      B. jV. Swns and J$. W. Pugh for Plaintiffs and Appellants.

      J. H. Ilsley, Bércmlt & Legendre, and P. B. Théa/rd <& Sons, for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

The plaintiffs having presented to the court á quá a petition praying for an injunction, the judge thereof declined to grant the order and formally recused himself, directing his order of recusation to be entered on the minutes. Thereupon, under the provisions of Act 43 of 1882, the clerk of the court granted and signed the order of injunction and fixed the amount of the bond, which was duly furnished, and the citation and writ of injunction were issued and served.

Afterwards, the plaintiffs moved the court for the appointment of a judge ad hoe, and thereupon the judge entered Ms order rescinding Ms recusation as having been improvidently made.

From this rescinding order plaintiffs applied for and obtained a sus-pensive appeal, which is the one now before us.

Motion to Dismiss.

The motion is founded on two grounds, viz:

1. That the order appealed from is an interlocutory order, and one occasioning no irreparable injury.

This Court lias held that, while no appeal will lie from an order of a judge recusing himself, one will lie from an order refusing to recuse himself. Fields vs. Gagné, 33 A. 339; Jarreau vs. Choppin, 6 La. 133.

A like distinction was enforced in another -case, where it was held that an order transferring a case to a neighboring judge was not appeal-able, though “an appeal would lie if the right of transfer had been denied.” State ex rel. Fontelieu vs. Judge, 31 A. 47.

We think this case falls within the appealable class.

2. That the appeal has been satisfied by the subsequent appointment of a judge ad hoc to try the case.

It appears that after the suspensive appeal had been perfected, the defendants in the cause moved the court to appoint a judge ad hoe and this was accordingly, done. The appeal cannot be affected by such subsequent proceedings. We have authority to look into them only for the purpose of discovering whether the appellant has acquiesced in the judgment appealed from. No such acquiescence appeal’s. Appellants protested against action by the judge in the case until the determination of the suspensive appeal.

While the prosecution of the appeal seems purposeless, the rights of appellants must be governed by the principle of law applicable in such cases.

The motion to dismiss is, therefore, denied.

Oif THE MERITS.

It seems clear that, under the circumstances of this case, where recu-sation of the judge had been acted upon, and where plaintiff’s remedy rests upon an order granting the injunction made by the clerk of the court which he would have had no right to make but for the recusation of the judge, the latter was without authority to rescind his recusation. If he might do so, in such a case, it is difficult to say when his right to rescind would cease — whether it might not continue after the appointment of the judge ad hoe and even after the partial trial of the case before the latter.

We have held that when a judge has refused to recuse himself upon motion of a party to the suit, he cannot try and decide the issue of recusation himself, but must refer it, to be tried as provided by law. State ex rel. Tyrrell vs. Judge, 33 A. 1293.

The present case, where he undertakes to rescind Ms voluntary recu-sation, against the protest of a party, cannot be distinguished from the above.

Perhaps a different rule might apply ii the judge had recused himself through mere inadvertence or misapprehension and rescinded before action taken thereon. But here, the subsequent action taken by the judge in repealing Ms recusation excludes the idea of inadvertence or misapprehension.

It is, therefore, ordered, adjudged and decreed, that the order rescinding the recusation of the judge of the lower court be annulled and set aside and that the case be remanded, to be proceeded with according to law, appellees to pay costs of this appeal.


author: MANNING, J. Fenner, J. Poché, J.

text:
    No. 8879.
    Jules A. Blanc et al. vs. P. A. Murray.
    The fact that the damage complained of is inflicted by a public nuisance, will not prevent a recovery at tlie suit of an individual, if be bas suffered a special and particular damage therefrom, different from that ■which is common to all.
    A public nuisance is one, the effects of which are common to the geneial public, and which does not produce any special or jiarticular damage to any one person as distinguished from the rest of the public.
    If a nuisance is susceptible of being both public and private, and is so to such an extent that an individual right is violated, then the private remedy is permissible, even though the result may he to open the door to a multiplicity of suits. Thus, smoke, noise, noxious vapors, noisome smells, or other cause which creates a public nuisance, may, by interfering with comfortable enjoyment of property, create a private nuisance as well, and cause a special and particular damage which will justify an individual action for damages.
    Where the light to the private action exists, injunction will lie to restrain the continuance of the nuisance and suppress it.
    The City Council cannot legally authorize what will produce a private nuisance, A municipal body cannot do more than a State Legislature, and although what is authorized by theLegislature within the scope of its constitutional power cannot he a public nuisance, it may he a private nuisance, and the legislative grant is no protection against a private . action for damages resulting theiefrom. A fortiori is this true of authorization from a City Council.
    APPEAL from the Civil District Court for the Parish of Orleans. . Lazarus, J.

      Miller db Finney and Brnjne & Denégre for Plaintiffs and Appellees :
    Plaintiffs, owners of valuable property, occupied by them as dwelling house*, complain of a nuisance constructed by defendant near them, which causes them special damage, impairing the use and value of their houses and endangering the lives of their families. An injunction was granted by the court, and on a trial before a jury was maintained; and it is apparent from the record that the jury found defendant’s structure and appurtenances a nuisance per se. See recoi d, pp. 889,116. The plaintiffs axe entitled to have the injunction maintained. Civil Code, arts. 857, 865, 866; 2 Martin R. S 317; 11 Martin 620; 7 A. 498; 10 A. 432; 14 A. 243,286; 2 A. 770. 773; Story on Equity Pleadings, sec. 537; 6 Johnson’s Chancery Hep. 157; é Cowen 682; High on Injunctions, sects. 533, 534. 535,650,655; Otto 609 ; Tilton vs. City E. E. Co.
    The plaintiffs gave notice to defendant to desist, "before he commenced the construction of his building, and have constantly offered to submit to any reasonable sacrifice to induce him to abate the nuisance. The evidence shows that plaintiils suffer great special damages and loss, and that they and their families are subjected to special annoyance and perils: and the verdict of the jury and judgment in their favor should be affirmed. Civil Code 857 et seq.; "Woods on Nuisance, sects. 534, 653.
    The fact that the structure and appurtenances are made in violation of the city ordinances is rather an aggravation of plaintiffs’ damages and wrongs than an excuse for defendant. The violation of a law does not deprive plaintiffs of their right to restrain defendant or recover damages for special injury and damage to them. Thompson on Negligence, vol. 2, p. 1232, note.citing authorities.
    Our courts daily'accord redress by granting injunctions, and condemning the wrong-doer to pay damages. Cases cited above.

      Geo. L. Bright for Defendant and Appellant.
   The opinion of the Court was delivered by

MANNING, J.

The plaintiffs, owners of valuable property occupied by them as dwellings, complain that the defendant is constructing contiguous to them, within the fire limits of the city and in violation of its ordinances, an inflammable and dangerous wooden structure, in which lie has placed a large quantity of pine'/'and cypress lumber, which endangers their property and the lives of tlieir families, and diminishes the value of the former and impairs its use, thus causing them irreparable injury and creating a nuisance. The damage alleged is several thousand dollars in amount. An injunction was obtained, which the lower court perpetuated.

The defendant excepted that the petition disclosed no cause of action, for if he has violated an ordinance of the city, the remedy is for the city to enforce her ordinance, and that the plaintiffs have none as individuals, or if any, not by injunction. Should his exception be overruled, he avers that he is constructing the building according to law and in compliance with the city ordinances.

The argument of defendant is that the erection of a wooden building is not a nuisance per se and is illegal solely because of the prohibition by city ordinance, and that private individuals have no right to sue for its abatement.

Unquestionably the general doctrine is that, for damages arising from a. public nuisance — that is, a nuisance the effects of which are common to every person — and which produces no special or particular damage to any one person as distinguished from the rest of the public, there can be no redress except through a civil action or criminal proceedings taken by an officer on behalf of the public. Wood on Nuisances, sec. 641. But it is equally well settled, that the fact that the damage is inflicted by a public nuisance will not prevent a recovery at the suit of an individual, if he has suffered a special and particular damage therefrom different from that which is common to'all. Ib. sec. 653. Tt is only when the injury arising from a nuisance is to a purely public rigid, that is to say when the nuisance is in its nature a public nuisance, so that the injury is general and public in its effects, and no private right is violated in contradistinction to the rights of the rest of the public, that individuals are precluded from bringing private suits for the violation of their individual rights. If the nuisance is susceptible of being both public and private, and is so to such an extent that an individual right is violated, then the private remedy is permissible, even though the result might be to open the door to a multiplicity of suits. Ib. sec. 655.

Thus it is undisputable that noise, smoke, noxious vapors, noisome smells, or other cause which creates a public nuisance, may by interfering- with comfortable enjoyment of property create a private nuisance as well, and occasion a special and particular damage which will justify and sustain an individual action for damages. Ib. sec. 534. English cases cited in 6 Jacob’s Digest, 9516. And where the right to the private remedy exists, there can be no doubt that an injunction will lie. Story Eq. Jur. § 924; Milhaw vs. Sharp, 13 N. Y. 625; Doolittle vs. Supervisors, 18 N. Y. 160.

The exception was therefore properly overruled.

Nor will the defense, that the structure is authorized by the City Council and has been made in compliance with its requirements, avail if the proof establishes the fact of private nuisance. A municipal body cannot legally do more than the Legislature of a State, and although this latter may authorize a use .of property that will operate to produce a public nuisance, it cannot authorize a use of it that will create a private nuisance. Wood on Nuisances, sec,. 751. Or, to put the doctrine in more exact form, that wliich is authorized by the Legislature, within the strict scope of its constitutional power, cannot be a public nuisance, but it may be a private nuisance, and the legislative grant is no protection against a private action for damages resulting therefrom. Ib. sec. 750. The d-'-ctrine sometimes stated in elementary works, and which has been held by some courts, that whatever is authorized by a Legislature cannot be a nuisance of any kind, is exploded.

The highest judicial authority lias recently said, in reference to the grant by Congress to a railroad of the right to lay its track within the limits of the National Capitol and to construct other works necessary to the proper completion and maintenance of its road — “ whatever the extent of the authority conferred, it ivas accompanied with this implied qualification that the works should not he so placed as by their use to unreasonably interfere with and disturb the peaceful and comfortable enjoyment of others in their property. Grants of privileges or powers tQ corporate bodies confer no license to use them in disregard of the private rights of others, and with immunity for their invasion.” Balt. & P. R. Co. vs. Fifth Baptist Church; 2 U. S. Sup. Ct. Reporter, 719. And what is true of a grant by Congress to a railway corporation is a fortiori true of an authorization by a City Council to a private individual.

If then the proof of nuisance of the defendant’s structure to the plaintiffs’ dwellings is satisfactory, there can be no doubt of their light to the perpetuation of their injunction.

The structure is at one of the corners of Carondelet and St. Joseph streets. Mr. Blanc resides nearly opposite the defendant’s corner. Mr. Herring’s residence adjoins it; the third plaintiff has a dwelling-house opposite it on another corner. The structure is a shed rather than a house. Brick pillars support the upper floor, and between them are gates or doors. Wooden pillars surmount those, and are covered with thin sheet-iron. The upper story is open. Within is collected a quantity of seasoned pine and cypress. The defendant is a cistern builder, and this shed of two storys is his shop. Shavings are plentiful within, and without are piles of lumber. Some of it is on the roof, and cisterns when completed are put up there temporarily. They are waterless. A steam railway passes in the middle of St. Joseph street several times a day, puffing out sparks of fire. Of course the danger of ignition of the shavings and the seasoned lumber is always imminent. One of the witnesses says, it is a large match-box, but he is one of the plaintiffs. Take another, who is not a party to the suit and is a builder by trade. He says the structure is extremely dangerous to the surrounding property. It is entirely open and very liable to catch on fire, much more so than any building, and that the outside as well as inside is very inflammable. The only fire-proof part is the brick pillars. The rest is very liable to burn and would make a hot fire. Several witnesses confirm this, and the diminution in desirability and therefore in value of the plaintiffs’ property is established.

A part of the cross-examination of the plaintiffs sought to ascertain if the true motive of their action was not to get rid of a cooper’s shop from other cause than the danger, hut it failed. They seemed to have been animated by a liberal spirit to the defendant — certainly anything but an oppressive or querulous temper — since they offered Mm for his property one thousand dollars more than the highest bid he could get for it.

Judgment affirmed.

On Application tor Rehearing.

The former opinion is explained, showing that it was not held, either that a wooden building, even if constructed within the fire-limits of the city, was a private nuisance of which individuals could complain, or that the business of manufacturing cisterns was a nuisance per se, but only that the business of cistern-maker, pursued in the manner which the evidence exhibits, in a structure of the kind used, in such a locality and with such surroundings as shown, is a nuisance, by reason of the extraordinary and unnecessary danger of fire arising therefrom. The relief, however, must be strictly confined to the abatement of the nuisance, and the former decree is modified accordingly. /

The opinion of the Court was delivered by

Fenner, J.

Recognizing the importance of the questions involved, we have attentively considered this application.

As held by the judge á quo in limine, and affirmed by ourselves, we remain satisfied that the terms of the petition are broad enough to support the charge that the defendant had established and maintained a private nuisance. The case was tried on that theory and defendant has had all the benefit of full defense. It would require a very clear defect of pleading to justify the maintenance of defendant’s objection at this stage of the case, which could serve no useful purpose.

We have not held that the construction of a wooden building, even within the fire-limits of the city, is, per se, a private nuisance of which adjacent proprietors may judicially complain.

Nor have we held that the business of cistern-maker is a private nuisance, per se.

What we have held is, that the business of cistern-making, pursued in the manner in which the evidence exhibits, in a structure of the kind built by defendant in such a locality and with. such surroundings as here shown, is a private nuisance, the abatement of which may be demanded by persons whose private rights are specially affected thereby.

The peculiar facts are too clearly stated in our original opinion to require repetition.

They clearly bring' the case within the principle announced by a learned author in the following words: It is a nuisance for a person to make an erection in tlie vicinity of another’s building and negligently and carelessly carry on a business there that directly exposes his property to loss or damage by Are.” “Wood on Nuisance, sec. 149; Varnly vs. Thompson, 13 F. C. (Scotch) 491; Derwoody vs. Des Arc, 18 Ark. 252.

We have reflected on the limitations imposed on this doctrine by other authorities, referred to by Mr. Wood in sections 150, 151, but conclude that they do not apply to the case in hand.

In matters of this kind, each case must rest upon its own peculiar circumstances, and in determining the question of nuisance vel non it is necessary to balance the rights of the parties in view of all the circumstances, and say whether or not the use of the property, in the manner complained of, is reasonable and in accordance with the relative rights of the parties.

A cardinal principle of the relief granted in such cases, however, is, that it should be strictly confined to the abatement of the nuisance.

We are not authorized to enjoin the defendant from pursuing at all his business of cistern-maker upon his property in question; because, conducted prudently and in a structure affording reasonable and proper security against incident damages, it is a lawful occupation, not a nuisance per se, to the unavoidable inconveniences of which plaintiffs must submit.

Neither should we compel defendant to remove his structure; because that, in itself, is not a source of such danger as to justify private complaint.

The nuisance arises from the combined facts of the pursuit of such a business in such a structure and in the manner complained of. Our original decree merely affirmed the judgment, overlooking its details wherein it covered matters not justified by the principles announced in the opinion, and therefore requires to be modified so as to accord with these views, which do not differ from those expressed in the first opinion.

The amendment, however, may be made without the necessity of granting a rehearing.

Our former decree herein affirming the judgment appealed from, is, therefore, annulled and set aside.

It is now ordered and adjudged that the judgment appealed from be annulled*, avoided and reversed; and proceeding to render such judgment as should have been rendered by the lower court, it is now adjudged and decreed that defendant, P. A. Murray, be and he is hereby perpetually enjoined from occupying and using the lots and buildings owned by him at the corner of St. Joseph and Carondelet streets, in this city, for the purpose of manufacturing cisterns and from accumulating therein lumber, shavings and other inflammable material for said purpose, until the said buildings shall have been so remodeled and constructed as to afford reasonable security against fire; and he is further ordered and commanded to remove forthwith from said premises the shavings a,nd like inflammable material now therein; reserving to plaintiffs whatever rights they may have in the premises.

Defendant to pay costs in the lower court and plaintiffs to pay costs of this appeal.

DisseNTING Opinion.

Poché, J.

A second examination of this case has satisfied me that in their pleadings plaintiffs have disclosed no cause of action. The exclusive ground of complaint in plaintiffs’ petition is that defendant is erecting a wooden structure in violation of law and of certain enumerated ordinances of the city of New Orleans.

Their pleadings, therefore, eliminate from the case all consideration of a private nuisance, or of a nuisance per se.

It was doubtless the opinion of plaintiffs’ learned counsel that such a building and defendant’s trade or occupation were not nuisances and could not be dealt with as such unless either or both were erected or carried on in a manner violative of some prohibitory law or of some city ordinance.

That conclusion is inevitable and finds ample support in reason as well as in law and authority.

A shop, even if built exclusively of wood, erected and used for the purpose of building cisterns, would not be considered a nuisance in the country or in an unincorporated town or village. Persons following that, as well as all other lawful trades, are entitled to the full protection of the law, and their calling will not be declared a nuisance because it may produce some inconvenience to the neighborhood, unless the complainant can show that he has thereby suffered real and substantial injury. Wood’s Law of Nuisances, sec. 792-

No rule of law or jurisprudence can be invoked as sustaining the proposition that a cooper-shop, or cistern-builder’s establishment, is a nuisance jper se. But such establishments could be treated as public nuisances if they were built within the fire-limits of the city of New Orleans in violation of the ordinance regulating the kind of structures allowed and the manner of building the same, within such limits.

Plaintiffs’ complaint in this caso is, that defendant has built a shed or wooden structure in violation of the ordinance which forbids the erection of any building within the defined limits, except the walls thereof be constructed of brick or other non-combustible materials, covered with slate or other non-combustible materials.”

The record shows that the defendant presented to the proper city authorities his application for permission to erect a building which he described, giving the details of the means which he intended to use so as to make his building fire-proof, or at least to comply with the requirements of the ordinance in the premises. The permission was granted to him and he at once proceeded with his construction, when he was stopped by the injunction.

If, as charged, he subsequently violated the provisions of the ordinance, or began to use the building as a shop before its completion, the city authorities had the undoubted, but exclusive, power to interfere with him so as to coerce obedience to the law, or to prohibit the premature use of the building; but that power is not lodged in private individuals, unless they allege and show special and actual damages accruing therefrom to themselves or to their property. “ The city alone could and should have taken steps to enforce the conditions of its regulations by the use of its police power.” Werges vs. R. R. Co., 35 A. 648.

It is plain to my mind that the violation of city ordinances c.an give no cause for civil action to individuals who fail to allege that the nuisance complained of is a nuisance per se.

I, therefore, dissent from the opinion and decree of the majority in refusing the rehearing applied for in this case, and I think that our previous opinion should have been reconsidered.


author: Bermudez, C. J.

text:
    No. 8771.
    Adler, Goldman & Siegel vs. G. Wolff et als.
    The purchaser of a commodity, 'without exhibition of samples, is entitled to recover back money paid for accommodation, in advance, when, after inspection of the articles, it is found not to be of the expected standard.
    A prayer for “general relief ” does not authorize a judgment recognizing the plaintiffs as owners of cotton, when in their petition they aver the sale of the cotton, non-payment of the price of sale, and claim a lien and privilege on it. The two reliefs are inconsis-
    Ifo valid judgment can be rendered against one made a party, who was not cited and has not joined issue.

      It is lawful to appoint a curator ad hoc to an absconding debtor, where property in which he has an interest has been seized and he is a nocessary party for the decision of the suit
    Where the ends of justice require it, the Court will remand a case for further proceedings.
    A PPEAL from the Civil District Court for the Parish of Orleans. Laewus, J.

      Leovy & Krwttselmitt for Plaintiffs and Appellants.

      J. Aroni, B. F. Jonas, Miller & Finney, J. Ad. Hosier, for Defendants and Appellants.

      House & Grant on same side:
    A sale made subject to a condition which has not happened is not complete and cannot be enforced. C. 0. 2457, 2025; 1 Domat sec. 8, p. 213.
    When goods and produce are sold by weight, tale or measure, the sale is not complete until the things sold are weighed, counted or measured. C. C. 2458; Campbell vs. Penn, 7 A. 371; 12 K. 53 ; 15 A. 438; 17 A. 146; 21 A. 414; 1 Domat, sec. 7, p. 221.
    An agreement to sell is only so far a sale as to give either party a right to claim, recta via, the delivery of the thing sold, or the payment; of the price. McDonald vs. Abert, 17 L. 449 ; 15 A. 483; 1 Domat, sec. 3, p. 203.
    This agreement cannot be enforced by the vendor until he has delivered, or tendered a delivery, of the thing sold. Goodrich vs. Pritchard, 10 A. 249.
    If the thing sold is lost, even after a delivery of an order on the warehouse to the purchaser and before it has been weighed, the loss falls upon the vendor; and the buyer may recover back a deposit paid on account of the sale. Larue vs. Pugley, 30 A. 242.
    "Where one of two innocent parties must suffer by a fraud, the loss must be borne by him through whose conduct the fraud has been made possible. Campbell vs. Penn, 7 A. 371.
   The. opinion of the Court was delivered by

Bermudez, C. J.

This is an action to recover with lien and privilege the unpaid price at which a number of bales of cotton was sold.

The main averments are that the commodity was sold to a party whose broker, to whom an order on the press had been delivered, subsequently sold it to one who afterwards pledged it to secure money advances to him; that the first sale was completed only when the cotton was inspected and weighed, and that the suit, for the price of sale having been brought and the cotton sequestered within the proper time, the plaintiffs must recover in preference to the last purchasers or pledgees.

Several parties are made defendants, who (save one who was not cited and did not appear) have set up defenses to relieve themselves from responsibility, and in one instance, to be returned money paid for accommodation in advance, of a conditional purchase.

There was judgment against plaintiffs as to two of the defendants, condemning the former to a return to one of the defendants of the money and farther, of non-suit against the plaintiffs as to the other defendants, and also against the latter in favor of the former.

A more, detailed statement of the pleadings and of the judgment is immaterial as the case is to he determined on the evidence as received, and then in part only.

We have attentively considered the voluminous evidence in the case. Eliminating redundant and cumbersome matters, likely to confuse and embarass a proper conception of the controversy, we think that the following is a faithful and concise epitome of the, indisputable facts revealed by the transcript:

On the thirteenth of April, 1882, the plaintiffs owned 157 bales of cotton, then stored in the Orescent Oity Press; on that day they sold that cotton to G. Wolff, who was accompanied by his broker, G. Korn-doffer, at 10f cents, the cotton weighing 60,804 pounds.

The plaintiff's then issued to G. A. Apps, Korndoffer’s principal partner or employer, an order on the press for the delivery of the cotton. This order was received by the press on the eighteenth following, and was entered on that day on its books.

On the twenty-ninth following, having heard nothing further of the transaction, the plaintiffs called on the broker and was informed that Wolff would not use the cotton, but that one Lemoine would take it. The plaintiffs consented to a sale to Lemoine, on a partial cash payment of $3500, which was made, the purchaser reserving the right to reject if the article did not come up in grade and staple, the sale having taken place without exhibition of samples. Plaintiffs’ classer having-turned out and inspected the cotton and finding that it was not of the proper standard, notified Lemoine that it did not suit him.

On the third of May next, Korndoffer sold the cotton to P. Beer, who, representing himself to Meyer, Weis & Co., as owning 250 bales, obtained from them an advance of $7500, directing the transfer to them of the. 157 bales in the press, which was done, the press issuing a receipt to Meyer, Weis & Co. for 127 only, the difference, thirty bales, having been rejected after passing the sales, for some undisputed cause or other.

Meyer, Weis & Co., press receipt in hand, transacted with Musgrove & Son about the cotton, but difficulties arising the transaction was annulled.

Things were in that condition when it was suddenly learned that E. Beer had disappeared from the cotton market and absconded.

On the eighth of May, within the five days following the sale to Beer and the transfer by Apps to Meyer, Weis & Co., advised of the facts just veoitecl and apprehensive of loss and injury, plaintiffs sequestered the cotton which was still in the press; on the following day the cotton was bonded by Meyer, Weis & Co., who afterwards sold it for Beer’s account, the sales netting some $6725.

The plaintiffs claim a money judgment, against Wolff, Lemoine, Beer and Meyer, Weis & Co. for $6536, with lien and privilege on the cotton and conclude by sprayer for general relief.

They insist that should the Court be unable to render the money judgment asked, they should, under that prayer, be recognized as the owners of the cotton sequestered.

We deem it • unnecessary to determine whether title to the cotton passed from the plaintiffs, through Wolff, to Lemoine and Beer.

The theory of plaintiffs seems to be, that they sold the cotton to Wolff, issuing the cotton press order for it to Apps, his broker; that this broker subsequently sold it for Wolff’s account to Lemoine and next to Beer, putting it finally in the name of Meyer, Weis & Co., who received it in pledge of advances by them to Beer; that the sale to Wolff having been completed only when the cotton passed the scales, viz: on the 3d of May, 1882, and their suit having been brought within the five days following that date, they have a right to deal with the cotton,' as cotton belonging to Wolff, and to enforce payment of the price of sale to Mm, with lien, to the exclusion of the pretensions of both Beer and Meyer, Weis & Co.

Under this aspect of the case, it is sufficient to say that the sale by plaintiffs to Wolff, does not appear to have been annulled by their consenting to accept $3500 from Lemoine, procured as a purchaser by Wolff’s agent, for there is nothing to show that this purchaser ever assumed Wolff’s liability and was accepted by plaintiffs as a delegated debtor, in his lieu and stead to all ends and purposes. His irurehase of the cotton depended on a contingency. It was eventual.

The cotton, after inspection, not having been found of the quality desired, he was released and is entitled to recover back the $3500 which plaintiffs admit to have received from him.

It is impossible for us to render any judgment against Beer who is a real defendant and necessary as sueh in the case. The judgment appealed from refuses to confirm the defcmitt against Mm ; but we have carefully searched the transcript and have failed to discover that any citation was issued and served, »>r appointment of a representative made, so as to bring him in court. In the absence of any appearance on his part, no judgment can be rendered against him.

Neither can we render a money judgment against Meyer,Weis & Co., for there is nothing to show a purchase by them of the cotton from plaintiffs, and we are impotent to recognize the lien claimed on that cotton, even if the same exists, in the absence of Beer, who has an interest at stake.

Meyer, Weis & Co. ask to be recognized as the. owners of the cotton put in their name by Beer’s orders and to be entitled to recover from Beer the amount of their advances to him. Beer was not cited to answer this demand and has not joined issue.

The same reason which prevents the rendition of any judgment in favor of plaintiffs against Beer, opposes any decree against him on behalf of Meyer, Weis & Co.; so that, we find ourselves in the legal impossibility of determining the important and interesting questions of law which were so ably and so elaborately urged by the different counsel engaged in the case.

We are, then, now driven to the consideration of the question: whether under the prayer for general relief, the plaintiffs are entitled to ask ,t.o be recognized as the owners of the cotton sequestered.

It is true that, under such prayer, suited to the nature and justice of the case, the Court may render such judgment as would be given in a non-suit, to avoid a circuity of actions. Such prayer authorizes all ordinary decrees, for accessary rights, which the pleadings and evidence may justify and which flow from the law ; but it does not justify a decree inconsistent with the special relief sought.

In the present instance, the plaintiffs have avowed, unqualifiedly, the sale of the cotton ; the non-payment of the price; a privilege and lien on the same for such payment, and have prayed accordingly. It is manifest that, after such averments, plaintiffs cannot pretend to bo entitled to a recognition as owners of the cotton just alleged by them to have been sold.

But had averment and prayer been made accordingly, in the alternative, how could such judgment' be rendered declaring the plaintiffs to bo the owners of cotton which the evidence, shows was sold to one who was not cited and who has not joined issue.

The reason which forbids a money judgment against Beer, proves an insuperable impediment in the way of the rendition of any judgment against him, which would declare him not to be the owner of the cotton and which would recognize title thereto in either' the plaintiffs or in Meyer, Weis & Co.

Had a curator ad hoe been appointed, all this difficulty might have been avoided.

We think that the ends of justice require that this case be remanded to the iower court, with leave, to plaintiffs and all others concerned to apply for the appointment of a curator ad hoc, on a proper showing to the court, to represent the absent or absconding debtor, contradictorily with whom, as to him, the case will then bo tried anew.

There is no necessity or propriety of trying- the case de novo as to Lemoine who should no longer be detained, to no advantage, as a factor in this controversy.

The judgment in his favor, discharging him and condemning plaintiffs to return to him the $3500, is correct and should not be disturbed.

It is, therefore, ordered and decreed that the judgment appealed from, as far as it is rendered in favor of A. Lemoine, and condemns the plaintiffs to return to him the sum of $3500 with interest from judicial demand, be affirmed.

It is further ordered and decreed that, in other respects, said judgment be reversed and that this cause be remanded to the lower court to be further proceeded with according to the views herein above expressed and according to law, the plaintiffs to pay costs in both courts.

ON APPLICATION POR REHEARING.

The plaintiffs charge, error in this :

1. That the Court erred in deciding that Beer has never been cited in this suit:

2. That the court erred in deciding that Ferdinand Beer is a necessary party to this suit.

3. That the Court erred in remanding the cause as to Wolff, even if it were correct in doing so as to the other defendants.

On the other hand, Wolff claims that the case should have been decided finally aud in his favor.

I.

Since the decision of the case, the plaintiffs have filed in this Court a document purporting to be a copy of the citation issued to Beer and of the return of the service on Mm.

The fact of the production of such document in this Court, and at that stage, proves that the transcript contained neither the citation nor the return when the case was determined and that this Court was right when it said that Beer did not appear to have been cited and served.

. But it is claimed that, if the transcript does not contain the citation and the return, it is because the omission of the same therefrom is justified by the sixth clause of the first rule of this Court.

That rule dispenses with the copying into the transcript of citations and returns, only where issue has been joined by the appearance of the party asked to be cited. It does not apply to cases in which such party makes default.

The statements in the briefs for a rehearing that the motion for a default was made and granted is not verified by the record.

Where a motion is made for a default, it should be noted on the minutes of the Court. It is true that there is found in the note of evidence mention of a verbal application for a default, but this is irregular and void. The law authorizes the plaintiff, if the defendant do not appear, after the delay allowed, to take a judgment by default, which can be obtained by moving for it in court. It suffices that such judgment appear by a statement on the records of the court that the defendant has failed to appear.

The law retpiires that all judgments, whether interlocutory, final or definitive, shall be correctly entered on the records, that is: the minutes of theu court. The same rule must be observed in relation to all orders or mandates given by the court, as well .as to all motions made by the parties to the suit. C. P. 310, 311, 533, 534, 538, 544; 6 R. 9; 8 N. S. 339; 15 A. 164.

The ease cannot be considered at issue in the absence of a judgment by default regularly entered, or of an appearance by the defendant. The joining of issue is in fact the foundation of the suit, as citation is that of the action. C. P. 360, 359.

TÍ.

The plaintiffs thought that Beer had an interest in this suit, for they averred against him, prayed that he be cited and condemned to pay them the amount of their claim.

Beer is alleged by the plaintiffs to have acquired the ownership of the cotton. It is on that cotton that plaintiffs claim a lien and privilege. His property is in control of the court and at stake. He may have defenses. He may allege and show that Wolff has paid plaintiffs, that he paid Wolff, or that the sale to him is a nullity; or that he owes Meyer, Weis & Co. nothing; that he is the owner of the cotton which is free from all claim from plaintiffs or Meyer, Weis & Co.; or he may set up some other defense which it is difficult to conjecture or anticipate. No judgment can be rendered in favor of plaintiffs subjecting the cotton sequestered in the hands of Meyer, Weis & Co. to the lien claimed, without affecting some of Beer’s rights to it. 12 Wheat, 198; Daniel Ch. Pr. vol. 1, p. 246; 34 A. 421; 32 A. 548; 20 A. 383.

The plaintiffs allege that the cotton was sold to Beer, by whose order it was transferred to Meyer, Weis '& Co., and the latter ask judgment against him for the amount of their advances. The fact that Beer was not cited on the counter demand of Meyer, Weis & Co: is no reason why he should not be represented and why the latter should have no recourse against him, under the circumstances of this case. The plaintiffs thought, that they could not trace their cotton to Meyer, Weis & Co. unless through Beer, and could not ask judgment affecting that cotton without bringing him formally in, and they have accordingly formally done so.

TIL

The plaintiffs claim that they should not be denied a personal judgment against Wolff, with recognition of their lien and privilege on the cotton.

But it is impossible to admit that privilege in the absence of Beer, whose cotton it may be.

Had tlie plaintiffs waived that lien, there might have been no objection in rendering a judgment on the claim against Wolff.

This Court cannot render the personal judgment and next inquire into and pass upon the question of privilege. Tt will not try and decide a case piecemeal against the same defendant.

IV.

Wolff insists that judgment should have been rendered in his favor. It is difficult to perceive how such conclusion could have been reached.

The difficulty in the way of a definitive judgment between him and the plaintiffs consists in the impossibility of rendering a judgment which would recognize the lien claimed without affecting the rights of Beer, who was made and remains a parly; who is here represented by plaintiffs as having been cited and served and who has certainly an interest in resisting the 'claims of both plaintiffs and Meyer, Weis & Co.

If it be true that Beer was cited and served, it will be incumbent on plaintiffs to obtain a judgment in lower court, On proper showing, before proceeding with the case on the remanding thereof.

Had the citation and the return, the motion for a default and a judgment thereon, been regularly before us, the case could have been easily disposed of. In the absence of such essential proceedings, our previous decree cannot be altered.

Rehearing refused.


author: Poché, J.

text:
    No. 9035.
    The State of Louisiana vs. George Chandler.
    After the evidence is closed in the trial of a criminal case the defendent cannot be allowed to introduce other testimony, even with a view to contradict statements of a state witness, drawn out of him in rebuttal, on the pretense that his statements embraced new matters. The proper course is to object to such testimony or to move for its expulsion. There must be an end-of the trial, which would otherwise be protracted indefinitely.
    A motion in arrest of judgment is not the proper mode of presenting objections to the man. ner of drawing or organizing either the grand or petit jury, or of presenting errors not apparent on the face of the record.
    District judges have the right to order special jury terms at which all criminal cases may bo tried. The right is not limited to special terms for the trial of minor offenses with a jury less than twelve in number. State vs. Claude, 35 A. 71, affirmed.
    APPEAL from the Sixth District Court, Parish of Morehouse. Brigham, J.

      J. G. Egan, Attorney General, for the State, Appellee.

      Todd <& Todd for Defendant and Appellant.
   The opinion of the Court was delivered by

Poché, J.

On a charge of murder the defendant has been convicted of manslaughter.

1. He complains on appeal that the trial judge erred to his detriment in rejecting the testimony of a witness whom he attempted to introduce after the evidence had been closed.

His object was to contradict the testimony of a State witness, drawn out by the district attorney as rebuttal testimony.

The defendant charges that the testimony which he sought to meet, comprised new matters not covered by the testimony of the witness, in his preceding examination.

The judge did not err in his ruling. There must he an end to the examination of witnesses in all trials. The rules of practice have wisely provided that when the evidence has been closed, the examination of witnesses is at an end. A different rule would have protracted trials beyond reason and would have practically resulted in a denial of justice.

When the State seeks in rebuttal to draw out new matters from one of her own witnesses, the defendant’s right is to object to the questions propounded to that end or to move for the exclusion of the statements of witnesses containing new matter. But the error complained of can afford no justification for the commission of a second error, of re-opening the evidence after it had once been closed.

2. In a motion in arrest of judgment the defendant submits that the grand jury which presented the indictment and the petit jury which returned the verdict against him, had not been legally drawn or constituted, for the reason that the venire had been drawn for a special jury term, alleged to be illegal because it had been ordered by the district judge while he was out of the State, on a leave of absence.

That objection, made after trial, comes too late; the motion in arrest, which is restricted to defects arising from intrinsic causes appearing on the face of the record, cannot be entertained as the mode of urging irregularities in the formation of the jury. The mere fact that the defendant had recourse to parol testimony, to show the absence of the judge, from the State when he issued the order alleged to be illegal, is a fair test of the conclusion that the defect complained of is not apparent on the face of the record.

In the recent case of the State vs. Noah Jackson (35 A. —), we had occasion to make a thorough examination of criminal jurisprudence on this point, and wo therein re-affirmed the rule which has settled that the motion in arrest of judgment is not the proper form or proceeding of embodying and presenting alleged errors not appearing on the face of the record.

3. Appellant also denies the right of the district judge to order a special criminal term other than such as are contemplated by Art. 117 of the Constitution, and Act No.T35 of 1880.

His point seems to be that the only special jury terms authorized by the Constitution and laws of the State, are those in which juries, less than twelve in number, are enrpanelled for the trial of criminal cases in which the penalty is not, necessarily, imprisonment at hard labor or death.

The identical point was made in the case of State vs. Claude, 35 A. 71, and was decided adversely to appellant’s position in this case.

For the reasons given in that case, we overrule the objection made in the case now before us.

The record shows that due public notice was given of the judge’s order convening his court at such special term, and that everything touching the same was regular and legal.

We find no error to the prejudice of the accused.

Judgment affirmed.


text:
    No. 8960.
    Mrs. O. Gauthraux et al. vs. Theo. Thibodaux, Sheriff, et al.
    'Wliero a party makes a conveyance of immovable property for a valuable consideration, which, lie receives when the act is passed, and the deed is recorded in the parish where the immovable property is situated, and followed by possession, a judgment creditor of the vendor cannot make a direct seizure oí the property because of the fact that the one to whom the conveyance was made was not purchasing for himself but for others, who paid tho consideration, and to whom the ostensible purchaser gave a counter-letter, which, however, was not recorded before the seizure. To justify such a seizure, the sale in question must bo a pure simulation in all respects.
    Nor will it avail tho seizing creditor that tho property is described in said deed, not by metes and bounds, but the deed conveys all interest and right and property in certain successions named, and the property seized once belonged to those whose successions are so named, and was inherited jointly by the said vendor and those for whom the purchase was made.
    The real purchasers have the right to enjoin the seizure.
    A PPEAL from tlie Twentieth District Court, Parish of Lafourche. jAl. Knobloch, 3.

      O'Sullivan & Blake for Plaintiffs and Appellants.

      Clay Knobloch for Defendants and Appellees:
    t. Heirs who take possession of a succession that owes no debts become absolute owners. 31 A.506; 33 A. 827; 34 A. 1168; 30 A. 93; 32 A. 321. A pretended sale for cash, wben no cash was actually paid, by one of the heirs of his undivided interest in the succession, without giving any description of real estate, to one who declares he did not really purchase for himself but as sub-agent of the agent of third parties, cannot affect a creditor of the vendor whose judgment was registered in tho mortgage records. C. C. 2438,1886, 2259,3300,2439: 1 A. 338: 4 A. 293; 5 A. 358; 12 A. 251.
    2. A mandate to buy real estate must be in writing (C. C. 2992, 2997. 2415) and oannol be proved by parol. 32 A. 635 : 30 A. 898; 23 A. 196 ; 31 A. 547.
    3. The unauthorized act of a sub-agent cannot be ratified by his counter-letter to an unauthorized agent, and this without Regard to the reality or simulation of the counter-letter. Principals alone can ratify.
    4. Nor can the unauthorized act of the sub-agent of the agent be ratified even by the principals to the prejudice of third persons who have acquired rights in the meanwhile. 12 B. 225, 653; 7 NT. S. 375; Hen. Dig. p. 837, No. 6.
    5. Parol proof is inadmissible to show that a pretended vendee was really invested with title for the benefit of third parties. 15 A. 539; 38 A. 678. It would be a petitio princypvi to sav the vendee’s declarations are admissible because ,he was the agent, and he was the agent because his declarations are admissible. Wharton on Evidence, § 3183; see also Starkie on Evidence, § 665.
    fi. The principle that a private unrecorded document in relation to immovables cannot affect third persons, holds good even though the private document is real and is not assailed on the ground of simulation. O. C. 2246, 2266. 2442.
    7. A counter-letter has no date except that specially proved fl9 A. 139) and this without reference to tho question of simulation.

      8. Plaintiffs’ enjoining on tbo ground that they are owners under a notarial sale attached for simulation, must establish title by clear, certain and legal evidence. 19 A.. 139.
   The opinion of the Court was delivered by

Todd, J.

One Cyprien Azema, a defendant herein, having caused an undivided interest of certain immovable property to be seized as belonging to his judgment debtor, the plaintiffs alleging that they had purchased the interest of the debtor prior to its seizure, enjoined the execution of the writ and asked to be declared owners of the aforesaid interest.

The injunction, was dissolved on motion,-with damages, and plaintiffs have appealed.

The facts undisputed are these:

P. A. Aueoin was the joint owner with the plaintiff,’ his,sister, of property consisting of a house and lots in the town of Thibodaux, which they had inherited from their deceased parents.

On the 23d of January, 1883, Aueoin conveyed to one E. A. O’Sullivan, by notarial act passed in the city'- of New Orleans, the following, as described in the deed:

“The undivided one-fourtli part, share and interest in all the estate, right, title and interest, property, possession, share, claim and demand of every nature and kind whatever, of him the said P. A. Aueoin, in and to the succession and estate of his deceased parents * * * *

without exception or reservation, and to the property, rights, credits and effects belonging thereto, whether in whole or in yiart, and whether in this State or elsewhere, and also in and to any and all property, to or in which it may hereafter appear that the said successions or estates are entitled or in anywise interested.”

This act was recorded in the parish of Lafourche on the 24th of January, and the seizure made on the 23d of May, following.

Tt was alleged in the i>etition that this conveyance was made to O’Sullivan as the agent and attorney of plaintiffs and for their benefit, and for a price or consideration paid by them.

That O’Sullivan received or accepted the conveyance for the plaintiffs is evidenced by á counter-letter to that effect, purporting to be dated 25th of January, 1883, and which we think was properly admitted in evidence, though not recorded.

The consideration expressed in the deed for the property was $1000 cash.

It was charged in defendants’ motion to dissolve that this conveyance was a bare simulation, that the pretended purchaser did not buy and that he paid no price or consideration whatever for the property'.

Under this issue of simulation the plaintiff proved that the real consideration paid consisted of notes owiug by Aucoin to them, amounting to about $941, and which were in the hands of O’Sullivan, their attorney, for collection, and which were surrendered to their debtor on the passing of the act of sale.

This evidence too, in our opinion, was competent on the special denial made by defendant of any price or consideration being paid and on the question of simulation raised by them.

There was no charge of fraud or illegal preference contained in the answer.

It will be seen from the above that before any seizure by the sheriff of the property in question, Aucoin, the debtor, liad ceased to be the owner of it, that he had parted with his title to it for a valuable consideration, and that the act of conveyance had been duly recorded in the parish where the property was situated prior to such seizure and that possession followed the passing of the act.

Tt is plain, therefore, that Aucoin, the seized debtor, could have asserted no title to the, property against either O’Sullivan, or the plaintiff, or anyone, else.

A judgment creditor can only seize directly immovable property which his debtor has conveyed to another by regular act duly recorded, where the sale or conveyance is a pure simulation, for the' reason that notwithstanding the purported transfer, the debtor is still the true owner and had never ceased to be such; and that there had in fact been no sale, no price paid and no intention to sell. It must be an entire simulation, both as respects the seller and the buyer, to entitle the creditor to such right.

The right of the creditor in this instance to seize did not depend in the least on the fact whether O'Sullivan was a real or sim ulated buyer, or whether he had bought for himself or for another, but on the fact whether the debtor had or not sold the property to anyone for a valuable consideration and thereby divested himself of title, and the deed had been recorded. If there was any reality about the sale, the creditor could not legally have seized regardless of the transfer, but should have resorted to an action of nullity.

Being satisfied, therefore, that the act in question was not a pure simulation, we must conclude that the seizure in question was unwarranted in law and the plaintiffs or their agent, being in possession of the property under the conneyance in question duly recorded, had a right to resist the seizure by injunction.

There is another question raised touching the sufficiency of the description in the deed to effect a transfer or conveyance of the property. We have carefully considered this question, and are satisfied that, though the description is somewhat defective, it could not be held void as between the original parties and that evidence aliunde to help out the description or establish the identity of the property was permissible; and that under the facts of this case the judgment creditor of Aucoin, the vendor, could have in this suit no superior rights to the parties to the act.

We shall content ourselves with declaring that, under the evidence, the seizure was illegal and was properly opposed by the plaintiff, but whilst so concluding, shall leave open all questions which cannot be considered in this case, but which might be urged in another form of action. We shall simply perpetuate the injunction on the ground that Azéma, the seizing creditor, had no right to resort to a direct seizure.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be annulled, avoided and reversed; and proceeding to render such judgment as should have been rendered, it is now ordered, adjudged and decreed that there be judgment for the plaintiffs perpetuating the injunction and that defendants pay costs of both courts.


text:
    No. 9074.

      M. Shelly vs. T. L. Winder.—M. Levy & Bro., Intervenors.
    The purchase of such movables as mules cannot destroy the vendor's privilege by impressing upon them the merely metaphysical character of immovables by destination, but such destination is subordinate to the vendor’s right.
    In an action by vendor of a plantation for dissolution of sale by reason of breach of the resolutory condition, he cannot claim mules attached thereto after his sale, to prejudice of the privilege of the vendor of the mules, nor is he interested in the question of regis - try of said privilege.
    PPEAL from the Niueteentli District Court, Parish of Terrebonne. Goode, J.

      JE. H. MoOaléb and L. J}\ Suthon for Plaintiff and Appellant:
    1. Appellant’s constitutional right of appeal cannot be taken away by the ex parte affidavit of appellee. Alleged acquiescence in the judgment appealed from must be brought to the attention of the court by the highest species of evidence which the facts are susceptible, otherwise it cannot be noticed. 29 A. 862; 32 A. 176.
    2. The provision of Article 567, C. P., will not be extended by presumption or implication. The acts relied on to show an acquiescence in the judgment appealed from should be unequivocal. 29 A. 763, Where the judgment is seyerahle and divisible, its partial execution will not debar appellant’s right of appeal as to the remainder. 35 A. 213; 4 A. 216; 3 11. 253 ; G E. 273 ; 3 A. 358. 593 ; 23 A. 152: 3 "Wal. 687, 688,
    3. Mules placed upon a plantation by its owner and. intended for the cultivation thereof, become immovable by destination, it. C. C. art. 468; 23 A. 749; 27 A._657.
    4 The vendor’s privilege upon movables which have become immovable by destination ceases to exist, and cannot be exercised to the prejudice of third persons, hypothecary creditors of the vendee. Troplong Priv. et Hyp. T. 1, "Nos. 109, 114. et seq.; C. rej. 22 Janv, 1833 (Mirault): S.-Y. 33, 1. 446; X). P. 33,1, 151; G-renoble, 18 .7anv. 1833 (Marade); S.-Y. 33, 2, 462; D. P. 33, 1, 85.
    5. The vendor of movable’s cannot demand the resolution of the sale for the non-payment of the price, when the objects sold have become immovable by destination and are subject to the hypothecary claims of third persons. Lyon, 21 Mars. 1839 (Cavé): S.-Y. 39, 2, 423; D. P. 39, 2, 104 : 0. rej. 9 Dec. 1835 (Périer); S.-Y. 36, 1, 177; L. P.36,1, 5; Paris, 16 Aout, 1832_(Yeyvaaset); S.-Y. 33, 2, 474; D. P. 34, 2, 25; Paris, 24 Hov. 1845 (Hallette); S.-Y- 45, 2, 664; Marcadé, T. 6, Tit. YI. art. 1656, p. 288; Paris, 25 Juill. 1846 (Maire); S.-Y. 46, 2, 358; I). P. 46, 2, '151; P. 46, 2, 562, and id.; C- rej. 9 ¿Turn, 1847 (méme affaire;) S.-V. 47, 1, 889; D. P. 47, 1, 248.
    6. The vendor of an immovable, availing himself of the resultory condition, must have the property restored with all the improvements and accretions which have become incorporated with it. 3 A. 60S.

      Moore & Badecmx, for the Intervenors, Appellees :
    ON MOTION TO DISMISS.
    Appellant cannot reap the benefits of the judgment in its favorable features and ask in the same breath the reversal of the same judgment in other respects when unfavorable to them. 32 ¿.947.
    Having gone into possession of the plantation under the same judgment which rejected his demand for the mules and having seized the mules as movables and claimed a portion of the proceeds of their sale, the appellant has abandoned the only question which is raised by him on appeal.
    OH THE MEEITS.
    The resolution of the sale of a plantation does not carry with it mules purchased subsequently to tlie purchase of the plantation, nor is the vendor’s lion on said mules lost by the fact that the plantation reverts to its original owner. C. 0 . 2045 ; 31 A. 634; 32 A. 463; 29 A. 607; 28 A. 741; O. C. 3250; 32 A. 463; 29 A. 607: 28 A. 741; O. C. 3250; 14 A. 342; 28 A. 739; Potliier Contract of Sale, secs. 382, 404, 470.
    The registry laws are to be consulted only when there is a conflict between parties claiming mortgage or privilege. Shelly’s claim is not based upon either. 32 A. 463: 24 A. 541; 24 A 498: 12 K. 279; 12 A. 699; 12 A. 227; Con. 1879, Act 177.
    "Where a privilege is granted by law. it is for him who maintains its loss to show some provision by which it is extinguished or excepted from the general rule. 12 A. 698.
    The vendor’s 'privilege is not lost by the fact that the property has become immovable by destination; quoad tbe vendor it is always a movable. 28 A. 750; 32 A. 1285; 34 A. 535, 923; C. C. 3227, 3277 ; 12 A. 227.
   The opinion of the Court was delivered by

Fenner, J.

Shelly sold a plantation to Winder on credit. Thereafter, Marx Levy & Co. sold to Winder twenty mules on credit, which were, attached to the plantation. Shelly sues Winder for a resolution of the sale for non-payment of the price. Levy & Co. intervene, opposing the subjection of the mules sold by them, to Shelly’s claim, and praying judgment against Winder for price of the mules, with recognition of their vendor’s privilege thereon.

The judgment appealed from resolved the sale of the plantation, but recognized and enforced Levy & Co.’s privilege on the mules sold.

The appellant assigns error in the judgment, on two grounds:

1. That the vendor’s lien on the movables sold was extinguished by their conversion into immovables by destination.

2. That the lien was lost by failure to record it until after the institution of the resolutory action. ,

Certain French authorities are quoted in support of the first proposition, but others are of a contrary opinion. This Court has adopted the view of Troplong, to the effect: “That the purchaser of such movables as mules, agricultural implements, etc., cannot affect the rights of the vendor thereof by impressing upon them the purely metaphysical quality of immovables. The thing sold subsists in all its parts just as it was when sold, without any change in its nature, or otherwise, except in its destination; and such destination is considered as imperfect and subordinated to the rights of the vendor.” Troplong Priv. and Hyp. No. 113; Carlin vs. Gordy, 32 A. 1285; Gary vs. Burguiéres, 12 A. 227; Bergeron vs. Patin, 34 A. 535.

As to the alleged defect of registry, we consider that it is one with which plaintiff has no concern. He does not assert any mortgage or privilege on the property. He simply claims the dissolution of his sale for breach of the resolutory condition, the effect of which is to “place matters in the same state as though the obligation liad not existed,” and “to oblige the creditor to restore what he has received.” C. C. art. 2045. Shelly never sold these mules to Winder and has no right to claim them in this action. The authority cited from 3 A. 608, refers to the offspring of slaves sold and is governed by different principles, which readily suggest themselves. The effect of the dissolving condition being to put the parties in the same condition as if they had never contracted, it follows that the offspring of slaves sold return to the seller with their parents, for the reason that, had there been no sale, they would have belonged to the seller.

These principles have no application here.

Judgment affirmed.


author: MANNING, J.

text:
    No. 9033.
    The State of Louisiana vs. William Green.
    The object of a*formal bill of exceptions is to apprise the appellate court of wliat lias been deemed exceptionable and the grounds therefor. Where therefore no grounds are set out in the bill, there is nothing upon which the court can act.
    The trial judge has always had, and always exercised, the right to question witnesses either for the State or the defense.
    A. motion in arrest of judgment lies only for defects apparent on the face of the record. A. defect which appears only by the aid of testimony cannot be the subject of a motion in arrest.
    PPEAL from the Sixth District Court,' Parish of Morehouse. Brigham, J.

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

      Todd & Todd for Defendant and Appellant.
   The opinion of the Court was delivered by

MANNING, J.

Prom a conviction of larceny and sentence to hard labor for six months the defendant appeals.

The first bill of exceptions states that the prosecuting officer asked a witness if it was not a fact that one Charles Biglow, who was found in possession of the property stolen, had made an affidavit against the defendant, under which he had been arrested, and that the counsel for the prisoner objected to the question, and his objection was overruled.

The object of a formal bill of exceptions is to apprise the appellate court of what has been deemed exceptionable, and the reasons why it is so, in other words the grounds of objection to the action or ruling of the trial court. Nothing whatever is stated in this bill except the fact that the defendant objected to the question, and we do not therefore know from the bill what objection was urged, and can conceive of no serious objection to such an unimportant question. State vs. Red., 32 A. 819.

The second bill is to a question addressed to a witness by the judge, and the ground of objection is that the judge has no right to interrogate witnesses in behalf of the State, and should not ask such questions as might prejudice the accused with the jury.

The judge takes pains to explain that a question asked of a witness and his answer thereto was not fully heard by him, and his question had for its object the better understanding of what had been asked and answered, but even without this explanation the objection is frivolous.

The trial judge has always had and always exercised the right to examine witnesses. Roscoe Crim. Ev. 164. Indeed there was a time when no one else could ask questions on behalf of the accused. Counsel was not allowed one accused of crime, and the judge oftentimes in fcworem, hunumttatis would check the ardor of a zealous witness by searching questions that revealed glimpses of a successful defense. The judge has not to sit as an automaton. lie can ask proper legal questions within proper legal limits. He is impartial from the responsibility of Ms position and from judicial habit. He has to take care that neither party shall suffer unlawfully, for it is a mistake to suppose that there is but one party interested in a criminal prosecution. The State has rights no less sacred than the accused, and the judge has both of them'in his keeping.

The motion in arrest is on the ground that the accused was not indicted at a regular jury term, because the terms had not been charged in any manner permitted by the statutes, and this called jury term had not been ordered legally.

It is sufficient answer to say that the objections come too late. It is very old criminal law that a motion in arrest lies only for defects apparent on the face of the record. 1 Chitty Crim. Law, 661; State vs. Nolan, 8 Rob. 513; State vs. Harris, 30 A. 90; State vs. Chandler; just decided. A defect that appears only by the aid of testimony cannot he the subject of a motion in arrest.

Judgment affirmed.

Justice Todd concurs in the decree.


text:
    No. 9071.
    Heirs of L. D. Gossin et al. vs. C. C. Williams and Morgan's Louisiana and Texas Railroad and Steamship Company.
    An action in damages against a common carrier for injury sustained "by goods between delivery by consignor for transportation and delivery at the place of destination, arises from the breach of the contract of affreightment ex contractu, not from a quasi offense ex delicto. The negligence or non-feasance does not constitute a case of trespass, which implies the actual commission of an act by the use of force or violence.
    A suit to recover damages said to have been thus sustained in consequence, must be brought at the place of the domicil.

      \ PPEAL from the Twentieth. District Court, Parish of Lafourche. lA Knobloeh, J.

      Taylor Beattie for Plaintiffs and Appellants.

      J. B. Winder and Leovy &-Kmttsclmidtt for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is a suit against a common carrier, foi damages said to have been sustained in consequence of want of propel' care anil attention, on the part of the carrier, to goods delivered for transportation, which, when destination was reached, had to he sold at a loss of $1147 52.

The suit was brought in the parish of Lafourche, but was met with an exception to the jurisdiction of the court, to the effect that it could be instituted only at the domicile of the corporation, which is in New Orleans, under the terms of its charter in that respect.

From a judgment- sustaining this defense and dismissing the suit, the plaintiffs have appealed.

Sec. 12 of the charter of the company reads as follows :

“ The domicile of the company shall be the city of New Orleans, and citation shall be served there on the preside nt of -the company, or, in his absence, on the secretary; and the company shall be sued only at its domicile, except in actions of trespass, -when the company may be sued in the parish in which the trespass has taken place.”

In the enumeration of the exceptions to the rule which requires that the defendant be sued before the judge having jurisdiction over the place of his domicile, the Code of Practice mentions the cases in which a corporation shall commit trespass, or do anything for which an action for damages lies. C. P. 165, (9).

In order, therefore, to justify the institution of this suit before the district court for the parish of Lafourche, the proposition is advanced that a refusal by a common carrier tó receive freight and when received to taire proper care of it, is an action violative of the general duty of such a common carrier -which gives rise to a quasi offense which authorizes an action ex delicto, for damages. It is, therefore, pointedly urged that such a refusal, by which damage arises, constitutes a trespass within the intendment of that word, as used in * * * the charter of this company.” The ruling in 33 A. 954 is invoked in support of that theory.

When ruling, as we did in that case, we did not say that the company could be sued, nothwithstanding sec. 12 of its charter, just as it might have been if that section had not been provided and that parties claiming damages from it were protected by the article of the Code of Practice.

It is evident that the Legislature, by granting to the company the immunity from suit out of New Orleans, its legal domicile, except in cases of trespass, meant to confer some privilege or advantage which, otherwise, would not have existed. The design was clearly to restrict the character of suits, not brought at the place of domicile, to cases of

The question decided in 33 .A. 954, was: whether the killing of a mule by the employes of the same company, in charge of a locomotive and train of cars, was or not a trespass, within the provision of sec. 12 of the charter. We there held that the word trespass, as found in the charter, was used in its broadest sense, so as to comprehend a variety of wrongs having the common element of a use of force, whether direct or indirect.

What we are called upon to determine in the present controversy is, therefore, simply:

Whether or not the cause of action set forth, discloses a case of trespass.

The pith of the complaint is, that the company first refused and neglected, to take the goods of plaintiffs; and, finally, that when it did receive and transport the same and when the place of destination was reached, the produce was found to be so deteriorated, in value and quality, that it had to be sold at sacrifice and loss. The plaintiffs claim that, as the damage was caused by the negligence of the company, they are entitled to recover.

The action clearly is one for the recovery of damages which are stated to be the result of negligence, consisting, as is alleged, in allowing the article to remain exposed to the inclemency of the weather.

The negligence complained of is not in this suit as it was in the case of the, mule. It cannot be claimed that, thereby, an act was committed, but, on the contrary, it is averred that acts were omitted. The ground for relief is not the commission but the omission of an act.

Trespass is defined to be,: an unlawful act committed with violence vi et aomis to the person, property or relative rights of another.

An action for trespass is that which is instituted for the recovery of damages for a wrong committed against the plaintiff with immediate force. '*

It does not lie for mere nonfeasance. Bonvier’s Law Diet. Vo. Trespass (torts) (remedies).

The word is likewise defined to mean : a hurtful use of violence which is wrongful; a wrong done with force. It excludes all varieties of wrongs in which force can neither be perceived, nor implied, such as negligence. There must be a wrongful injury or taking. Abbott Law Diet. Vo. Trespass (602).

In Montgomery vs. Levee Co. 30 A. 609, while considering the exception found in sec. 9 of the Article of the Code of Practice alluded to, this court formally said: that the Legislature contemplated the active violation of some right, or the doing of some other illegal thing, acts of commission which give rise to an action for damages, and that the rule does not apply to omissions, neglect or failure to do. Wrongs of this class are excluded by the use of the words commit and committed * * which, necessarily, imply action.

Tn the instant case, the charge is distinctly made that the company neglected to take proper care of the produce. Hence the injury. This charge clearly implies an omission and repels the idea of an act

It is to he observed that the section of the charter, after making the exception in cases of trespass, provides that the company, in such cases, may be sued in the parish in which the trespass has talcen place.

Those ending terms are clearly equivalent to the word commit, which was the subject of comment in the case just cited.

Applying those rules to the case at bar, it clearly appears that, as the damage, if any, was occasioned by the mere omission to do that, which it is claimed, dirty imposed on the carrier, the action is not one disclosing a case of trespass within the intendment of the charter of the company.

Another consideration which confirms strongly the same conclusion, is, that the damage claimed, if it was occasioned, arises from the violation of a contract, that of affreightment, which manifestly exists between consignor and carrier. Tt does not come within the class of damages occasioned ex delicto. It hows from the breach of a special obligation created by a special contract.

The character of the action is that of an action for damages resulting from a failure to comply with a contract of affreightment.

Tn support of this conclusion it suffices to refer to the main reasoning of this Court, in Kohn vs. Carrollton, 10 A. 719, which was subsequently affirmed, in 26 A. 677.

The district judge, in an able and elaborate opinion, has well sustained the exception to the jurisdiction.

It is, therefore, ordered and decreed that the judgment appealed from be affirmed, with costs.


text:
    No. 9068.
    The State ex rel. Muller Brothers vs. H. L. Lazarus, Judge Civil District Court, etc.
    Vhe only bond which can be required of a party appealing suspensively from a judgment rendered against such party, as a judgment debtor, for a forced surrender of his property under the provisions of sec. 1781. Revised Statutes, is a bond for probable costs.

      Such a judgment does not condemn him to pay any sum of money or to deliver any movable or immovable property; hence the appeal bond is not regulated by Arts..575, 576 and 577, Code of Practice.
    In fixing the amount of a devolutive appeal bond, the judge of the lower court must ascertain the amount of probable costs, and in computing che same in appeals from the Civil District Court for the parish of Orleans, he must consider the system which requires the payment of the transcript to or otherwise provided for.
    y^PPLTCATION for Mandamus.

      A. B. BhiMps and Albert VoorMes for tlie Relators.
    The Respondent in propria persona.

   The opinion of the Court was delivered by

Poché, J.

In the suit entitled John E. Thomson vs. Müller Bros., a definitive judgment was rendered against the defendants on the 28th of May, 1883, in the, sum of $5485 77. Execution having issued thereon, the sheriff returned that he had found no property of the defendants bo levy upon.

Whereupon, plaintiffs instituted proceedings under section 1781 of the Revised Statutes, with a view to a forced surrender of their property by the judgment debtors, and obtained, on the'8th of November, 1883, an order for such surrender conformably to the provisions of said statute.

On the trial of an exception to that proceeding, the original order was annulled so as to he restricted in its effect to one of the defendants only, by a judgment made final on January 11, 1884. The defendants then presented a petition praying for appeal from the, various judgments and decrees rendered against them in the, premises.

In an order dated January 21, 1884, a devolutive appeal was allowed from said judgment and decrees, on a bond of two hundred and fifty dollars; and a suspensive appeal was granted from the judgment of January 11, 1884, on a bond of one thousand dollars.

The defendants, who are the relators in the present proceeding, complain that both of the bonds required by the court are excessive, and they urge that both should be reduced to one hundred dollars each.

In the absence of a statement showing the amount of costs already incurred in the two judgments, we are not prepared to say that the, judge erred in fixing the amount of the bond for the devolutive appeal.

It is elementary, that the amount of such bond must he determined by the amount of the costs already incurred and likely to bo met with. Considering that, under existing laws regulating appeals from the parish of Orleans, the transcript is to be paid cash, and that the probable costs in' this Court are in the main covered by additional security or by a deposit of twenty dollars; we hold, however, that the judge of the lower court, in fixing the amount of a devolutive appeal bond, must base his calculation on costs only which are covered exclusively by the appeal bond. And, we think that the bond should be fixed so as not to exceed double the amount of the costs already incurred.

Tested by this rule and under the foregoing considerations, we must say that the bond complained of impresses us as being somewhat excessive.

But, in our decree, we shall not conclude the judge on that question, and shall direct him to determine the amount of the bond in accordance with the views which we have expressed above. ■

We shall now consider relators’ complaint of the bond required of them in their suspensive appeal from the judgment of January 1J, 1884.

As above stated, the effect of that judgment is the compulsory surrender of their property by the judgment debtors.

It does not condemn them to pay any sum of money or to deliver either movable or immovable property, and hence, we conclude in such a case, a bond sufficient to cover costs is all that can be required of the appellant for a suspensive appeal. State ex rel. Hickey vs. Judge, 20 A. 108; State ex rel. Beebe vs. Judge, 23 A. 31.

In his answer the respondent urges that the appeal taken from that judgment will have the effect of hindering and delaying the execution of the moneyed judgment. We cannot take that view of the appeal. In our opinion it only susx>ends the proceedings looking to the projected forced surrender of the defendants, or to their possible imprisonment under the provisions of the statute invoked by the judgment creditor. Pending this appeal the judgment creditor has the unquestioned right to proceed with the execution of his judgment by means of alias writs of fi. fa., or garnishement process, so as to reach any of his debtor’s property, rights or credits which the sheriff had failed to find and which may be subsequently discovered.

The relators were clearly entitled to their suspensive appeal on a bond for probable costs only.

It is, therefore, ordered that a'peremptory writ of mandamus issue, directed to the respondent judge requiring him to fix the amounts of the bonds, for the devolutive and suspensive appeals granted by him in the case entitled J. E. Thomson vs. Müller Bros., in order to cover the probable costs in e'aclr of the judgments appealed from, and to ascertain said costs in accordance with the views herein expressed.


text:
    No. 9086.
    The State ex rel. Edward Irwin vs. The Judge of Division E, Civil District Court, Parish of Orleans.
    Where a party alleging that an order dissolving his injunction on hond will cause him an irreparable injury, appeals therefrom and perfects his appeal by seasonably executing and filing his bond, the judge granting the appeal cannot rescind the order therefor because he subsequently concludes that the injury is not irreparable. With the filing of the appeal bond, fulfilling all the legal requisites, his jurisdiction and control in such case over the matter ceased.
    A PPDTOATION for Mandamus.

      T. Gilmore & Sons for the Relator.

      Bayne cts Denegre for the Respondent.
   The opinion of the Court was delivered by

Todd, J.

The relator applies to the Civil District Court of the Parish of Orleans for an injunction against the “Great Southern Telephone and Telegraph Company,” to prevent said company from erecting a post and putting wires thereon, in front of his residence.

Tl e preliminary injunction ivas granted, and subsequently, after the trial of a rule therefor, it was dissolved on bond, the amount thereof being fixed at $2500. From this order a suspensive appeal was applied for to this Court and allowed, on the execution of an appeal bond for $250, with proper security, which bond was seasonably furnished and duly filed.

Subsequently, upon the motion of the company, defendant therein, this order of appeal was rescinded by the district judge.

The relator, under this state of facts, applies to this Court for a writ of mandamus to compel the judge to annul Ms rescinding order and send up the appeal; and also for a writ of prohibition against him and the company to prevent any proceeding, under the last mentioned order.

We think he is clearly entitled to the relief asked for. The general rule is well settled that, when an order for an appeal is made and the required bond is furnished by the appellant, the court from which the appeal is taken has no longer jurisdiction over the cause. To this rule there are some exceptions, but this case does not come within any of them. We are referred to the ease of State ex rel. Cieutat vs. Judge, 32 A. 816, and the Paires case, 33 A. 927, as opposed to this view and as maintaining that the judge, after the appeal is perfected, may rescind tlie order if lie concludes that the case is not appealable. In neither of the cases cited was the precise point now presented before the Court. Tn the one case the appeal was taken after the legal delays had expired, and in the other the judgment appealed from was a consent judgment. It is true that in one of these decisions it is stated that an order of appeal may be set aside by the judge when the case is not appealable, but that evidently referred to cases that were plainly and l>alpably unappealable, by reason, for instance, of the amount in dispute being insufficient to give jurisdiction to this Court, or because the judgment was a consent judgment, or for other radical cause, and where the order was inadvertently made in the face of such obstacle to the appeal.

Here, the question to be determined touching the applicability of the order was whether the order would cause an irreparable injury, and the granting the appeal, thus involving a mixed question of law and fact, necessarily demanded the. exercise of a judicial discretion and rested not upon any extrinsic fact or upon a question of a compliance or noncompliance with any legal requirement, but on the decision of the judge upon the issue presented and which decision constituted a judgment upon that issue; which judgment, when given and pronounced, became 'irrevocable .so far as the judge was concerned, when it was followed by the required formalities to perfect the appeal. This order of appeal may have been rendered in error, but if so the error was not for the judge granting it to correct, but a matter to be determined by the appellate court.

It is, therefore, ordered that the mandamus and prohibition asked for be made peremptory.


author: PeNster, J.

text:
    No. 9043.
    The State of Louisiana vs. Henry Rowland et al.
    The incompotency of one member of a grand jury vitiates an indictment found by it. and a motion to quash, on such ground, made prior to plea, is timely and proper.
    PREAL from the Fourth District Court, Parish of Winn. Bridger, J.

      J. 0. Egan, Attorney General, for the State, Appellee.
    A. A. TAttle for Defendant and Appellants.
   The opinion of the Court was delivered by

PeNster, J.

The State is appellant from a judgment of the lower court quashing the indictment against defendants, on the ground that one of the grand jurors, who found the bill, was not a resident of the parish of Winn for twelve months next preceding his service as grand juror.

The fact of Ms non-residence is not disputed, nor is it denied that, under the law, it operated the disqualification of the juror.

The contention of the State is, that the objection to the grand jury came too late, because not urged prior to the finding of the bill of indictment.

The motion to quash was filed at the arraignment of defendants and before pleading to the. indictment.

It has long been settled, in this State, that the incompetency of one member of a grand jury vitiates the indictment found by it; and that the objection may be urged after finding of the bill. State vs. Nolan, 8 Rob. 513; State vs. Jones, Id. 616; State vs. Parks, 21 A. 251.

Judgment affirmed.