author: "Breaux, J. Breaux, J.

text:
    No. 12,972.
    John C. Munday vs. J. A. Landry et al.
    Syllabus.
    On Application to Remand.
    Affidavits of witnesses for defendants and counter affidavits of witnesses for plaintiff regarding the extent of injury suffered in a case of assault and battery, do not present grounds to set aside the verdict and remand the case.
    On the Merits.
    The principal defendant sought reparation from plaintiff and in this he was joined by his co-defendant.
    An asserted insulting letter was received a few hours before the difficulty occurred.
    There was not in the letter under the law, cause for an assault and battery, such as the jury found was committed.
    Words written or spoken some time prior will not justify a physical attack upon the one by whom they were written or spoken.
    The law has never gone further than to permit mere provocation to be shown as a palliation for the acts and result of anger.
    The legal phrase is; in mitigation, not in justification.
    The jury must have found ground to mitigate damages, but not enough to justify the act. A conclusion affirmed by the court.

      Woids written from one or spoken by him will not justify a physical attack.
    As words never constitute an assault, says Mr. Cooley in his work on Torts, p. 07, neither will they justify the employment of force in protection against them, however gross or abusive they may be.
    The preponderance of the testimony sustains the verdict of the jury on this point, fixing the assault and battery upon the defendants.
    The jury saw and heard the witnesses.
    To the decision of that body as relates to mere facts, weight is always given.
    It being a fact, established as we think by the testimony that defendants were ■ the aggressors in the difficulty at plaintiff's office, the rule to whien we have just referred, applies.
    The next matter in hand for our determination, is the amount of the damages.
    it is a general rule, that great provocation may be shown when it immediately precedes the act and the aggressor is smarting under the provocation.
    The jury must have concluded that there were some mitigating circumstances which justified them in assessing the damages.
    Under the rules of law app'ying, in our judgment, the defendants were liable for some damages. The jury have fixed them at fifteen hundred dollars. We have not found error that would justify us in reducing the amount; nor are we induced under the circumstances to increase the amount.
    ON APPEAL from the Twelfth Judicial District Court for the Parish of Calcasieu. Head, J.

      Andrews & ILukenyos and Kleinpeter & Kleinpetcr for Plaintiff and Appellant.

      Pujo & Moss for Defendants and Appellants.
    Argued and submitted December 21, 1898.
    Opinion handed down January 9, 1899.
    Judgment amended and Rehearing refused February 8, 1899.
   The opinion of the court was delivered by

"Breaux, J.

This was an action brought to recover an amount of fifty thousand dollars from the defendants, for injuries inflicted by one of the defendants aided by his co-defendant.

The facts are, as developed by the record, that in September, 1897, plaintiff addressed a note to one of the defendants, J. A. Landry, requesting the latter to let the writer know in regard to two amounts, ("one of $600 and the other of $300), owed, the writ or stated in the letter to the firm of Munday and Landry; lost, plaintiff wrote in the letter, in gambling by J. A. Landry, about twenty years prior.

The business of the firm of Munday and Landty was, we judge, not' considerable. The partnership was dissolved after two years of its' existence. The defendant, J. A. Landry, retiring, and receiving for. his interest the small amount of seventy-five dollars. .

Its capital had always been quite limited.

At the time this defendant withdrew from the business and received the amount just stated, nothing was said by plaintiff about any failure of the defendant to charge up the amounts referred to in his note (addressed to J. A. Landry as just stated), which the defendant claimed should have been charged by Landry on the books, nor was there the least allusion made to any such loss during the many years that followed.

Plaintiff and the defendant were on good terms, and the former rendered services as physician to members of defendant’s (J. A. Landry’s) family.

It appears that this defendant obtained a judgment for a small amount which nettled plaintiff and moved him to write the letter which the defendant construed as intending to charge him with having embezzled from the old firm, to that amount.

The defendant to whom plaintiff’s note had been addressed, wrote a-, letter in answer to the note; he also wrote a retraction, or denial of' the charge, to be signed by plaintiff, i. e., which he intended to present to the plaintiff for his signature.

lie disclosed'to his brother the cause of the trouble — declared to him that plaintiff’s note contained an untruth.'

It is evident that he was greatly aroused by the tenor of the note, which he took as an imputation upon his name.

About five hours after the note of the plaintiff had been received, the defendants repaired to plaintiff’s office, and there they announced to him that they desired to see him and upon his invitation, they left the sidewalk and walked into the office.

After entering, one of the brothers shut the front door and stood against it. Plaintiff walked to a partition door and there took a pistol and placed it in one of his pockets.

From this point in the history of the ease, the testimony of the witnesses is contradictory and conflicting.

We do not deem it necessary to insert here comments touching every detail which led to the reading of the letter, which one of the defendants had written to the plaintiff.

The defendant’s account is, that he said to plaintiff: “Did you

write me a letter?” to which plaintiff replied “-Yes.”

Further: “Is this the letter you wrote me ?” showing him the letter. Plaintiff replied “yes,” and he then said to him: “Dr. Munday, do me the justice to tell Dan that it is false;” that he (Munday) made no reply, whereupon he said: “You have asked me for an answer and 1 have brought it,” referring to the letter he had written to plaintiff .after he had received plaintiff’s note.

Plaintiff took the letter handed to him in his .hands, and talked, ^instead of reading, whereupon defendant testified, that he took it back .. and read it to him.

The letter shows that the defendant, by whom it was written must ; have been greatly excited while writing it. .

It alludes to the twenty intervening years; from the time of the idissolution of their partnership; to the date of the offensive letter; •recalls facts to prove the fallacy of the charge, and ends by using words fiercely denouncing plaintiff.

While defendant was reading the letter to plaintiff, defendant’s brother said to him that plaintiff’s son was knocking at the door. “Admit him,” was in substance, defendant’s answer, (J. A. Landry). After the letter had been read, he a second time sought to get plaintiff to recall what he had written. Upon his refusal he took’ out the “lie bill,” (that was the title or heading of the retraction he had written,) ¿put in on the desk and said: “Dr. Munday, you must sign this for -me. or make me some reparation.” He (Munday) refused. Plaintiff •pulled out his pistol and was prevented by defendant from using it.

A tussle followed; blows were struck ,and towards the end of the .encounter the defendant, J". A. Landry, pulled out a cowhide which he (had on his person concealed, and struck him four or five blows with it.

The testimony for plaintiff is, in certain particulars different. 'There was no attempt made, as we read it, to induce plaintiff by means -.at all mild or friendly to have recalled the tenor of the note of which •one of the defendants (D. A. Landry) complained; but without much talk or delay, Ihe defendant seized the letter, read it, and called upon the plaintiff to sign the recanting card, which contained expressions greatly humiliating to plaintiff had he signed it.

Plaintiff would not sign, blows followed, which must prove a permanent injury to plaintiff, the witnesses for plaintiff testify.

Defendant having- made a motion to remand the case, we insert here a statement of the needful facts to a decision touching that issue.

The suit was tried in May, 1898.

It appears that defendant contended in the District Court, that plaintiff had not sustained any injury; that he.remained at home, se•eluded and feigned to be sick, in order to excite public sympathy, and make better the opportunity for recovering damages.......

Three experts were appointed on defendant’s motion, to examine into his physical condition — the examination was read to the jury.

Plaintiff’s testimony was taken at his residence, contradictorily with defendants.

The mental and physical health of plaintiff presented an issue it is •contended, and the reports of the experts, defendants assert, must have influenced the minds' of the jury prejudicially to the defendants.

That they were prejudiced by it because (defendants insist) it was •erroneous, to the extent it was stated that plaintiff suffered with a fracture of the occipital bone, causing a compression of the brain.

Lately, two of the experts, for reasons stated, have arrived at a different conclusion, and now certify substantially that they of late (since the trial) from personal observation, have had the opportunity to discover the error complained of; that the defendant’s physical health is apparently better than it has been for years, and that it is very doubtful that any injury was ever inflicted on his brain.

This affidavit is met by counter-affidavit of a number of physicians, two of whom are physicians of great experience in treating diseases of the nervous system, who testify that after examination, they found plaintiff suffering from Neurasthenia, or nervous exhaustion, the result, they asserted, in their affidavit, of the shock ' to his “nervous system from cranial and other injuries sustained on or about September 14, 1897,” the date of the trouble.

The jury found a verdict for plaintiff in the sum of fifteen hundred dollars. .From the verdict and judgment, each plaintiff and defendants appealed. .

Motion to Remand.

With reference to remanding, we do not think that the verdict should be annulled and the case remanded in order to enable the defendants to reopen the note of evidence that they may introduce evidence to prove that the returns of the experts .appointed upon motion of defendants erred in stating in their reports as experts, that plaintiff’s skull had been fractured.

A number of witnesses have testified in the case; letters have been, introduced in evidence, the attending physicians have testified as to-the copdition of the plaintiff.

We find no reason in law and jurisprudence that would justify us in setting aside Ihe verdict and remanding the ease on the affidavit, stated. We are referred to the case of Schneider vs. Life Insurance Co., 30th Ann. 1198. The plaintiff in that case sought to recover on a. policy of insurance issued in favor of her husband.

The Supreme Oourt on the showing made on appeal, had reasons to believe that the husband was not dead, and remanded the. case to enable the defendant to prove the one fact, which if true, disposed of the case.

Here, it is different; defendants seek to have a case remanded upon affidavits as to facts that can not have a controlling effect upon the. result.

The charge of “feigning” is not absolutely a new issue on appeal.. The defendants did not succeed in proving it on the trial. Affidavits and counter-affidavits offer no good ground to remand the ease to-inquire further into the matter.

The errors we are to consider on appeal are, those of the court or jury.

■ In our view, the maxim applies here: “It concerns the State that there be an end to law suits.”

The case cau not be remanded consistently with practice and precedents.

The motion to remand is denied.

Damages Vel Non.

The question of damages is next in order before us for determination.

The defendants severed in their defense; each filing an answer.

Wre do not think, in view of the facts of this case, that we should consider the defense separately.

In our judgment, the two defendants had combined together in -.pursuit of a common purpose.

From all appearances, the brother (Dan Landry), who was called in by J. A. Landry, the principal defendant, after the receipt of plaintiff’s letter, entered into the feelings of J. A. Landry. ,

He also was armed, stood by, and prevented interference of any .sort.

ITe (Dan Landry), we have seen, shut the door after entering plaintiff’s office and enjoined in emphatic words those on the outside not to ■come in, except plaintiff’s son, who was permitted to come into the ■office after J. A. Landry had expressed his willingness to let him .enter the office.

The court has not found it possible, in view of all the facts connected with the case, to conclude, that in law he is to be held as not having taken any part in the difficulty.

■ He knew of the letter which had greatly excited his brother; they left together, armed; called on plaintiff together, and during the difficulty, he took an active part in disarming' the antagonist of his brother, and in preventing the approach of any one.

Blows were struck by the brother (J. A. Landry) with the pistol and the whip after D. Landry’s interference in the difficulty and active support.

We pass to the question of liability, more particularly of the active defendant in the case.

It was ill advised on the part of plaintiff to send such a letter to the defendant, J. A. Landry, the ,day that a judgment recovered by him was recorded against him, the plaintiff, for a small amount.

It could serve no useful purpose, and could but excite ill-feeling.

In this case no question but that great resentment was felt by the principal defendant, and that when he called on plaintiff, he was greatly smarting under what he construed as an insult.

It is unfortunate for the defendant (J. A. Landry) that he did not control his temper and rely more upon the good name he bore in the community in which he had lived many years, as testified to by witnesses, and where he has filled satisfactorily positions of trust and confidence.

This defendant sought to compel redress in a manner which the law ■does not, for a moment, sanction.

The duty is imposed upon us of applying its well recognized principles.

It is well settled that words do not constitute a legal excuse for an, assault and battery.

Goldsmith vs. Joy, 4th Law. An. Reports, page 500.

The law abhors the use of force either for attack or defence, and never permits its use unnecessarily.

Howland vs. Day, 56 Vt. 318, approvingly referred to in the well considered case just cited.

These principles are binding on the courts.

Eor reasons assigned, it is ordered, adjudged and decreed that the verdict and judgment appealed from be affirmed.

Nioholls, C. J., absent.

On Application por a Rehearing.

Breaux, J.

As costs must follow judgment, we affirmed the judgment as usual without making reference to costs.

It happens in this case on appeal, that both are appellants and both are appellees (plaintiff and defendants).

We have not found a precedent upon the question in our books.

In the absence of any decision, we concluded to apply the rule of law relating to costs on appeal in the following manner:

The plaintiff asked to have judgment amended by increasing the' amount.

The defendant asked to have plaintiff’s demand rejected.

He recovered judgment to the extent allowed in the District Court.

The defendants did not recover any part of their demand.

As the judgment was not amended, and the defendants did not recover, we conclude that costs should be borne by the latter.

Costs are to be paid by the appellee, as above stated, when the judgment is affirmed.

The unsuccessful appellees are the defendants.

It is therefore ordered, adjudged and decreed that our original judgment be amended to the extent that the appellees, J. A. Landry and Daniel J. Landry, will have to pay costs of appeal.

Rehearing refused.


source: Caselaw Access Project

author: Breaux, J. Watkins, J.

license: Public Domain

text:
    No. 12,978.
    Lazarus Levy vs. Sam Levy, Et Als.
    Syllabus.
    1. The parties in interest could, if they chose, make as basis for settling theivl'ights an amount other than the amount showing total assets of the community per official inventory.
    2. All the facts regarding the items which constituted the amount taken as a-basis for settlement and all the facts regarding the sales made in order to' effect a partition, not being in evidence, the Supreme Court will not assume that a double charge was made in the settlement to the prejudice of plain-, tiff's interest. ,
    3. In a matter of fact as related to an item of $4433, with which plaintiff was-charged, the preponderance of the testimony was against him. In collations by taking less, the donee must take so much less from the surplus of the' succession. C. C. 1253.
    ON APPEAL from the Seventeenth Judicial District Court for the parish of Lafayette. Chas. J). Cajfery, J., ad hoc.

      Crow Girard and Wrn. Campbell for Plaintiff and Appellants

      Gus A. Breaux for Defendant, Appellee.
    Argued and submitted December 23, 1898.
    Opinion handed down January 9, 1899.
    Judgment modified and rehearing refused February 6, 1899.
   The opinion of the court was delivered by

Breaux, J.

This suit was brought by plaintiff to have decreed null on the ground of fraud, an extra judicial partition effected between him and his children, and to set aside acts of transfer based upon the act of settlement.

Plaintiff’s wife died in May, 1894. The inventory shows the property there was in community, and its estimated value.

Plaintiff was a merchant and one of his sons was his bookkeeper for many years.

The heirs greatly disagreed with their father about the amount .■coming to them from tlieir mother’s estate. It was the cause of con.stant quarrels, as we gather from the testimony. After a time, Sam Levy, the bookkeeper before alluded to, made a memorandum of .amounts he thought were coming to each heir. They (the heirs) ■were eight in number. Ho submitted the memorandum to each oí \the heirs of age, six in number, and to plaintiff, the father, who represented his two minor children, in addition to his own interest as survivor in community.

The memorandum was placed in the hands of their counsel and he was directed to draw up an act of settlement with the memorandum us the basis.

The paper was written by him (the counsel); it was explained to .-all concerned, read to them, and duly signed by plaintiff and his children. Plaintiff now avers that he has been imposed upon by his children, who, he says, received more than they had any right to expect.

He charges that the heirs of age, who were defendants, were thoroughly conversant with his business and availed themselves of their 'knowledge of his affairs, to prepare and place in the hands of their -attorney, erroneous and incorrect statements, showing larger indebt- • edness than he actually owed to the community.

He complains that they withheld from the settlement made and so •managed that the full amount of the inventory was not taken account -of; that in the settlement they charged him with four thousand and thirty-three and 80-100 dollars, which (he avers) he did not owe to the community.

He further complains of the charge made against the community of thirteen thousand and seventy dollars, its indebtedness ns shown in the settlement; and lastly, he contends that the following amounts .should have been collated by the heirs named:

Armand Levy .................................$2600 00

Samuel Levy ..................................$2500 00

Hannan Levy...........................>.......$1500 00

The defendants in their answer admit that they and plaintiff entered into an agreement for the settlement of the rights of the heirs in ■the community existing until lately, between plainf.iff and Frances Plonskey, his late wife.

'They aver that it was a fair and just settlement, and that their father had no cause to complain. That the settlements furnished to .their attorney were taken mainly from plaintiff’s books with which he was familiar.

They deny that they circumvented their father in any way, or that .they committed any fraud.

The judge of the District Court rendered judgment for defendants and rejected plaintiff’s demand. He prosecutes this appeal.

We are informed that the defendants positively refused to take the ■ official inventory as a basis for the settlement.

They insisted upon a different amount and would not accept any ■ other amount than that which they asserted it should be. The plaintiff, after a considerable time, and many talks with his children, .yielded and accepted, as correct, the sum of seventeen thousand two hundred and forty dollars instead of the total of the official inventory. "This was a matter of agreement and one which plaintiff could well make, and by which, in our view, he is surely bound. He evidently knew the amount at which the property had been appraised in making the official inventory. It was for him to insist upon the amount ■stated in the official inventory.

There is no reason why this agreement made by him with his ehil- ■ dren should not be binding. As we take it, it was a question of value of property and all parties concerned arrived at the conclusion that it was not worth the amount at which it had been valued. An agreement which must be held as legitimate, and binding upon all heirs who are sui -juris, unless there was error committed or fraud practiced in some way. We have found neither fraud nor error.

We take up next in order, the item of four thousand and thirty- . three and 80-100 dollars, amount charged to plaintiff in the settlement now attacked by him. One of the objections is that he, plaintiff, is charged with the sum just mentioned as having been collected by him after his wife’s death, and no credit was allowed for the value ■ of outstanding accounts.

We have not succeeded in finding that the plaintiff has any reason ■to complain, particularly, in view of the fact that he has consented to •a settlement without raising any objection (in so far as the record dis- ■ closes) on that account. Prior to the settlement certain described properties had been retroceded to plaintiff, on which plaintiff now -claims he, as head of the community, lost, amounts which should be -deducted from the item last stated. He must have known that the loss had been made. Why did he consent to the settlement without taking it into account ? Moreover he is concluded by the settlement. as made by him.

He agreed upon an' amount with his children to be taken as the value of the whole assets of the community. Unless each item was-before us making up that amount (taken in lieu of the amount of the official inventory) and the value placed upon it, 'we could not well determine that an error has been made as to one of the items which resulted in an over-charge of the plaintiff in the sum of three thousand dollars claimed. .

Plaintiff also claims as.to the amount last stated, on the ground that no deduction was made from lot two of the inventory for the-four thousand and nine hundred dollars appraised value of the outstanding accounts and notes due the store. Plaintiff now takes the-position that three thousand dollars were worthless and that to that extent there is a double charge.'

It appears of record that thirty per cent, was deducted from this item of the inventory; it was seven thousand dollars, but by agreement it was reduced to forty-nine hundred dollars as just stated, i. e. thirty per cent, less of seven thousand dollars.

The father admitted that he collected four thousand four hundred' and thirty-three 86-100 dollars of this item. The testimony does not reveal the error charged.

This brings us to the item of thirteen thousand two hundred and' seventy 55-100 dollars debts deducted from the final total of the active-mass of the community of which plaintiff also complains. The testimony of plaintiff as to part of this item, viz: seven thousand, three hundred and thirty-four 85:100 dollars, given to sustain his objections, is not very plain. We gather from other testimony that plaintiff acknowledged an indebtedness of two thousand dollars with which he was charged, and the correctness of other items of indebtedness amounting with the two thousand dollars to seven thousand three hundred and thirty-four 85-100 dollars. The remainder of the thirteen thousand, two hundred and seven 55-100 dollars, to-wit, five-thousand nine hundred and thirty-five 10-100, is made up of five hundred and sixty dollars due to one of the heirs, and three hundred and seventy-six dollars due to another of the heirs, and five thousand dollars claimed to have been collected by five of the heirs who had not previously received anything from the master of community.

Our summary, as just made, is based principally upon the following testimony (of the learned counsel for the plaintiff) transcribed from the record:

“The balance of the debts of $13,270.55 arose in this way: Mr. Levy had donated to three of his children certain amounts of money: to Sam Levy, Armand Levy and Mrs. Mossiker, which after discussion among the heirs was fixed at $1000.00 each. I then, by consent of all parties, allowed $1000.00 to each of the other heirs. After this was added up, Sam Levy contended that the estate owed him $560, and Victor claimed that his father was owing him $375. * * * These two amounts were allowed, which made the debts amount to $13,270.55. After that we ascertained the distributive share of each heir, which was $523.20.”

By consent, the amount received by three of the heirs was properly fixed, and, as we thirds, at one thousand dollars each. That is the amount each owed. Plaintiff complains of all the items of indebtedness going to make up the amount last stated. Some of the defendants have testified, as witnesses, that they have settled their indebtedness by legal collation.

We have found it out of the question to reach that conclusion under the law. Three of the heirs owed collation. If this was intended as a donation by taking less, as we think it was, the donee then, must take “so much less from the surplus of the succession.” C. C. 1250.

In our judgment this should result in the following as correct:

Active Mass.

1.Amount of the inventory in acordance with agreement. .$17,240 00

2. Accounts collected by L. Levy.......................$ 4,433 80

3. Amount due by three of the heirs....................$ 3,000 00

$24,673 80

Debts ................................................$ 8,270 55

$16,403 25

One-half for plaintiff.......................$8,201 62

One-half for defendants ....................$8,201 62 — $16,403 25 '

As relates to the sales and acts plaintiff seeks to have annulled, numbered 21,148, 21,149, 21,150, 21,151, 21,152, there is no necessity to annul them at this time. Balances which may be due when settlement will have been made on the basis here expressed may be satisfied without the necessity of a sale. The question of necessity of sale vel non will be remanded for trial before the District Court.

Therefore the judgment appealed from rejecting plaintiff’s demand, in so far as relates to acts before enumerated, is annulled, avoided and reversed, and instead, plaintiff’s demand is remanded for trial as stated in.the body of our opinion.

Eor reasons assigned, it is ordered, adjudged and decreed that the case be remanded to the District Court to be proceeded with in accordance with the views before expressed. The costs of appeal to be paid by appellee.

On Application fob Rehearing.

Watkins, J.

We modify our decree and remand the case to ascertain whether or not collation is due, and should be made at all. Under the circumstances we think that upon the question of collation vel non, the case should be tried.

We reserve to plaintiff all his rights, and to the defendants theirs, so that they may be considered entirely from point of view of the rights of each, the plaintiff cn the one hand, the defendants on the other, as relates only to collation vel non. With the foregoing modification of the decree, the rehearing applied for is refused.


author: Bbeaux, J.

text:
    No. 13,001.
    Estate of Thomas Mora, Deceased; Opposition of Francis Navarro.
    Syllabus.
    The opponent raised the objection that the applicant for the administration had parted with all his interest as an heir and that he, in consequence (opponent), should be appointed.
    Held : The act of donation had not been accepted by the donee intended, in the manner required; that donations produce effect from acceptance in precise terms (C. C. 3540) ; that the donor not having been divested of his interest in the succession by an acceptance in due form was entitled to the appointment.

      ON APPEAL from the Twenty-Fourth Judicial District Court for the parish of St. Mary. A. 0. Allen, J.

      Philip H. Mentz for Administrator, Appellee.

      D. Oaffery & Son and J. Sully Martel for Opponent, Appellant.
    Argued and submitted December 13, 1898.
    Opinion handed down February 6, 1899.
   The opinion of the court was delivered by

Bbeaux, J.

This was a contest for the administration of the succession of Thomas Mora.

The administrator appointed in due time after the death of Thomas Mora, died some time after his appointment, but before Lis administration of the succession bad been closed.

Francis Mora, a brother of Thomas Mora, applied for appointment in June, 1898.

Francis Navarro, nephew of the deceased, interposed an opposition to the appointment of Francis Mora as administrator on the ground that Francis Mora had renounced the succession of Thos. Mora, and had ceded all his rights as heir of Thomas Mora, in favor of and to his widow, Mrs. Thomas Moi'a.

The testimony shows that Francis Mora, petitioner for the administration of the succession of his late brother in the year 1896, signed a notarial act with a number of the other heirs of the late Tilomas Moia; that Thomas Mora died intestate, without forced heirs. The heirs named in the act as donors did not all sign, nor has the donee, Mrs. Francis Mora, widow of the deceased, to date. The act sets forth, that the heirs, about eighteen in number, are the sole heirs of Thomas Mora and that by reason of their affection for his widow they give to her all their rights in the estate; that all the property is community property. Francis Mora and only three other heirs signed. •The others did not sign, although named in the act as donors.

Thomas Mora testified that he had ceded all his rights to the widow,' but subsequently modified his testimony by stating that the act before ailuaea to was tlie only abandonment ot the estate he had signed, and tnat ne understood that when he signed it that all the heirs of his hrotner would, also sign, that the heirs refused to sign.

This witness testified that Mrs. Thomas Mora verbally accepted the .donation.

While it is true that he testified that she had accepted, he also testified on an examination that when he signed it was in the expectation .that all the other heirs would also sign.

The attorney of Mrs. Francis Mora testified that he had advised her not to accept, unless every heir of Thomas Mora (fifteen ox-twenty in number) consented; “that any one heir, howevei remote his interest, might apply for the administration and the act of donatioii .could only be useful to prevent an administration.”

The estate was indebted in a large amount to the widow and to the .children referred as the Egloff children, who were in some way under .the protection of Thomas Mora.

The judge of the District Court rejected the opposition of Navarro . and appointed Erancis Mora administrator.

The opponent, Navarro, prosecutes this appeal.

A donation is binding only from the date of its acceptance in pre.cise terms. Civil Code, Art. 1540.

Acceptance is an essential in order that the donation may have effect. There are exceptions to the rule which do not arise in the ■case before us.

The question before us for decision is within the terms of the article .of the Civil Code quoted.

WTe have not found that it has been directly passed upon in any of the decisions of this court.

In Trahan vs. McManus, 2nd La., 209, the question was incidentally . considered, and cannot be considered for that reason, an authority in -support of the donation here.

The question of acceptance of a donation again arose in Lawrence vs. Police Jury, 35th Ann. 601.

There was an acceptance (in the case just cited) and the defendant -went into possession of the property after it had, as we take it, in a manner formal enough, accepted the donation.

In the case before us for decision, the widow of Thos. Mora never -accepted and the evidence discloses that she was advised not to form,-ally accept the donation — an advice she chose to follow.

In the absence of direct authority here on the particular point, we -consulted the views of French Commentators.

The article of the Code before cited is taken from 932 of the Code Napoleon and corresponds with it.

The court requires, says Laurent, Vol. 12, Sec. 224, an express -acceptance.

. In this the “legislator exceeded the limits even of solemnity in fur- ■ ther exacting that the consent of the donee should be made manifest .by express terms.” lb. But Article 932 is formal — “donation shall .have effect only from date of its acceptance in precise terms.” lb. These were the words used to point out that without formal accept.ance there was no donation.

It was announced in energetic terms that no effect should be given ■ to the instrument, unless it is made manifest by the acceptance of ■the donee. The following is quoted from Merlin:

“Gomme Vacceptation ne forme qu’un seul ei meme contrat avec la • donation dont elle est une partie necessaire il faut par consequent •quel soit aussi constante et aussi solemnelle que la donation meme.” Donation, Vol. 4, p. 94.

The foregoing is quoted only to the extent that it sustains our •views here. We do not find it needful to approve in this case, involving as it does, the appointment of an administrator, all the bearing and scope the quotation may have.

If Mrs. Mora were to claim a right under the act it would not be of any avail before her acceptance in the manner required by the Code. As she could claim no right without acceptance, it follows that the title remains in Francis Mora.

It being in our view an inchoate donation not accepted and which could not have any effect before its acceptance, we would not be justified in giving it some other effect such as that; while it is not an •act of donation; it is virtually a renunciation or an acceptance of the succession. Not a word in the act shows that it was the intention to accept or renounce the succession, but that it was the intention to make a donation. Being null, to date for non-acceptance by the one intended to be donee it must be considered in the language of the 'Code as having no effect at all.

With reference to estoppel, one of opponent’s grounds. We can only say in answer — and we think it is decisive of the question — that Mrs. Thomas Mora would not be heard to urge that plea prior to any acceptance on her part. If she could not claim the estoppel, third persons would not have any right to that plea.

Eor reasons assigned, it is ordered, adjudged and decreed that the judgment appealed from be affirmed.


author: Breaux, J.

text:
    No. 13,008.
    Robert H. Pruyn vs. J. T. Young, Sheriff, Et Als.
    Syllabus.
    One who claims under a sale made to him by his father, who was in insolvent circumstances, if the sale be attacked for simulations, must show that the sale was a real bona -fide transaction.
    A similar presumption arises, shifting the burden of proof from the one attacking to the vendee, if the father remain in possession of the property after the sale.
    The testimony of vendee alone in his own behalf (who fails to show why the other parties to tlie act have not testified), is not sufficient to overcome three separate, strong presumptions, established by law (to-wit, one arising from relationship between the parties to the sales ; continued possession of the vendor after the sale, and failuie to introduce corroborative testimony or failure to account for its absence).
    The testimony would have had a bearing upon the principal issue.
    The means of proof were accessible to plaintiff; it was for him to produce the proof, as on him was the' onus probanM.

    “Where effective proofs are in the power of a party who refuses or neglects to produce them, that naturally raises a presumption that they would, if produced, make against him.” Best on Evidence, p. 277.
    ON APPEAL from the Fifteenth Judicial .District Court for the parish of East Baton Rouge. Brunoi, J.

      Thomas J. Hernán and L. T>. Beale for Plaintiff and Appellee.

      J. F. Pierson and B. W. Knickerbocker for Eugene Barrow, Tutor, Defendant, Appellant.
    Argued and submitted January 12, 1899.
    Opinion handed down February 6, 1899.
   The opinion of the court was delivered by

Breaux, J.

Plaintiff sued out a writ of injunction to restrain defendant from executing a judgment obtained by him against Robert. L. Pruyn, plaintiff’s father, on the 12th day of February, 1897.

He averred in his petition for an injunction, that he is owner of the property seized, by purchase from R. L. Pruyn, on the 20th of January, 1897.

Defendant in injunction answered, and alleged, that plaintiff’s title-is simulated, and prayed that it be declared and decreed a fraudulent simulation, and his claims to ownership rejected.

As alleged, the property was bought by notarial act for the price of three thousand dollars, of which plaintiff, the act declares, paid one thousand and six hundred and thirty-six dollars in cash, and for the balance, gave his two promissory notes each for six hundred and eighty-two dollars, and six per cenL interest from date, payable at one and two years.

Plaintiff bears witness to a cash payment, consisting of two notes secured by mortgage, which he, plaintiff, had accepted as his share of the succession of his mother, and one thousand dollars by a check for the amount, and swears that the first of the two six hundred and; eighty-two dollar notes was paid by him at its maturity, and that he-is making arrangements to pay the other for a similar amount at its-maturity.

Plaintiff admits that he did not take formal corporeal possession of the property.

We are informed that the succession of- plaintiff’s mother consisted of her community interest in three tracts of land and of some personal property, and that for the purpose of settling the community, the three pieces of land were sold January 20th, 1897, and that the most valuable was sold to I. E. Craig and G. A. Craig for $3,780, in conformity with an agreement made about a year prior.

Another tract of thirty-two acres was sold to M. 0. Pruyn for $636 by the same vendor, and the third tract was sold to Stevens for $1000. Plaintiff avers that these deeds were introduced by plaintiff for the purpose only of showing plaintiff’s interest in his mother’s estate, and that the three sales amounted to $5,416.

One-eighth plaintiff’s share as an heir — $677—of which $636 was represented by the Craig notes for $318 each, taken as cash in payment of the purchase price of property claimed by plaintiff in this-suit. As to the remaining $1000 of the price plaintiff claims he has shown by witnesses of high character, that he was in a position to make the investment, and pay the . price.

A number of witnesses were heard upon this question. The testimony of the plaintiff alone was heard in support of his contention, that he paid the price as alleged; and that the sale was as it purports to be, a real sale.

Defendant sought to meet and rebut this testimony, by introducing .•evidence to show that plaintiff’s capital was limited, and his business .not considerable.

Recurring to the judgment obtained by defendant Barrow, against Robert L. Pruyn, it appears of record that the petition for the judgment was filed on the 9th day of June, 1894. It was assigned to be tried on the 22nd of January, 1897. Judgment was rendered and -.signed in the month following.

The defendant reconvened, claiming damages.

'The foregoing, relating to the facts, is ample enough to enable us to apply the law, and decide the case.

The jury found for plaintiff, and rejected defendant’s demand.

Defendant prosecutes this appeal.

An act, authentic in form, beyond the fact that it was passed, does not operate,as proof against third persons. It may be attacked, and if the averments of simulation are sustained, it may be decreed void for simulation.

Under the general rules of evidence, the burden of proof lies on the person who attacks the act to support his cause, by sufficient evidence, hut in this case the general rule does not apply. The onus of proof "lies on the vendee, and not on the creditor who avers, that the sale at-tacked was passed to his prejudice.

The burden of proof was shifted, for the reason that the sale under -which plaintiff claims was made to him by his father. The pros-pective heir’s purchase from the one from whom he expects to inherit, •'if the latter is insolvent, gives rise to a presumption which creditors •can invoke.

The burden of proof was also shifted, for the reason, that the vendor remained in possession after the sale had been made, and was in possession when the seizure of the property was effected, as well as when the case was tried in the District Court.

It is well settled: where the vendor continues in the corporeal possession of the thing sold, the presumptions are, that the sale is simulated, and the burden of establishing the reality of the sale, rests od .the vendee. This ground is not seriously controverted as we take it, but the position is, on behalf of plaintiff, that the question is one purely of simulation vel non, and that the evidence sustains the reality of the sale.

As relates to possession of the vendor after the sale, extreme views have been taken. Chancellor Kent supposed, erroneously, it was said, that the English law was unsettled upon the subject, but not, he wrote “in the Federal courts of this country, in which a sale without '“possession is treated as a fraud — it was even decided that the bona “fides of the transaction, and the fact that possession remained with “the vendor for justifiable purposes, would not suffice to render the “sale valid.”

This view of the want of possession in the vendee is more extreme than needful to sustain the conclusion at which we have arrived. We ■only cite this book in support of the proposition — that possession in the vendee gives rise to a strong presumption against the reality of the act. 2 Kent, p. 697.

We have already said, that the burden of proof was on the plaintiff. Aftei a careful reading of the testimony, we reiterate that not only the burden of proof was shifted to plaintiff, but, that independent and ■distinct circumstances raise a strong presumption rebuttable it is true, still only rebuttable by direct, clear and sufficient testimony. In this case we find, after plaintiff had proven his credit and ability to pay the cash which he alleged was paid for the property, that he rested content to rest his cause upon his own testimony, regarding the reality of the sale. The vendor did not testify, and no reason was given for not calling him as a witness. The Supreme Court had, at the date of the trial in this case, found, that such proof as that wanting here, was of weight in an issue such as is here presented. It had been found, that the vendee had utterly failed to sustain the burden of proof that rested upon her. Said the court, despite the grave charges brought against her, and her vendor, neither has favored the court with any proof of their bona fides, or of the payment of the price of sale, or of the reality of the transaction.

“Why should both defendants fail to appear and testify to the verity of the sale, and the payment of the price, if they could truthfully swear to those simple facts, and thereby put an end to litiga-. tion, involving, not only their means, but to some extent their reputations ?

“These questions admit of no answer acceptable to reason, except, that if they had testified at all, their statements would not have sustained their defense.” King vs. Atkins, 33 An. 1057.

The rule was applied in other cases presenting a similar issue regarding the burden of proof. Day & Husband vs. New Orleans, Pacific Ry. Co., 35th Ann. 694, and is referred to by Thompson on Negligence, Vol. 7, p. 514, Sec. 6.

In the case before us for decision, it is true that the vendee swore to the verity of the sale, and that in this respect, there is a slight difference from the first quoted case.

The rule none the less specially applies here, for the reason that the burden of proof was on plaintiff. The testimony of plaintiff alone in his own behalf, did not have the effect for which he contends.

The testimony of the vendor was needful to sustain the asserted verity of the sale, or to give some explanation for its absence. The issue presented of simulation vd non is an independent one and to refute the charge when the burden is shifted, it becomes important to support the denial with direct and sufficient testimony.

If it becomes manifest that there is other evidence upon that direct issue, the 'question naturally arises, as in the case of Cochran vs. Gibert, 41 Ann. 799: “Why should both defendants fail to appear and testify ?” The question here is, why should the vendor fail to testify ? He had sold all the other property in which he had an interest on the day that he sold his home-place to his son, the plaintiff, and this we think made it the more necessary to testify regarding the seriousness and reality of the transaction which enabled him to retain his house in his declining years.

We would not have it inferred that, in our view, a sale made at the time and under the circumstances the sale here was made, must be-deemed simulated.

Rut, -we do think its reality must be made evident by the testimony of those who must have had an immediate knowledge of the facts. Standing alone, the testimony of plaintiff in his own behalf is scarcely enough to rebut the presumptions arising from the possession and relationship of plaintilf, and it is clearly insufficient when uncorroborated by the testimony of witnesses who were parties — who must have known the important particulars leading to, and including the different sales to which plaintiff’s vendee was a party on the day before stated.

As relates to damages, we think, under the circumstances, that the Amount should be less than usually assessed in similar cases.

It is, for reasons assigned, ordered, adjudged and decreed, that the injunction sued out in this case be dissolved, and plaintiff’s demand rejected, and it is ordered and decreed, that defendant Eugene Barrow, tutor, recover damages in reconvention in the sum of seventy-five dollars. Costs of both courts to be paid by plaintiff.


text:
    No. 13,073.
    Mrs. J. A. Hewitt vs. M. F. Buvens, Third Opposition of Ardis & Co. In Re Simmons Hardware Company Applying for Certiorari or Writ of Review to the Court of Appeals, First Circuit, State of Louisiana.
    Syllabus.
    The Circuit Court of Appeals was competent and had jurisdiction to finally determine whether the attachments were concurrent.
    ■The court decided that they were concurrent, and that the creditors were entitled to a pro rata division of the proceeds.
    The Supreme Court declined to disturb the decree and to issue an order nisi as it is manifest on the face of the papers that the conclusion would be the same on the merits.
    W. P. Good for Petitioner.
    Submitted January 27, 1899.
    Opinion handed down February 6, 1899.
   The opinion of the court was delivered by

Breaux, J.

Relator, the Simmons Hardware Company, is a creditor of M. F. Buvens. It sued out a writ of attachment upon which the property of the defendant was seized. It avers that immediately after, other creditors of the defendant sued out writs of attachment on suits contemporaneously filed against the same defendant.

There was testimony introduced in the District Court regarding the ranking* of the attachments. There was some contradiction among the witnesses. The clerk of the court testified that the writs-in relator’s case and that of Ardis & Co., another creditor at whose instance an attachment was issued, were issued together and handed to their attorney just a brief time before those of Ogilvie and Buckley, Currie & Co., other creditors who proceeded by attachment. This testimony is, in the main, corroborated. The testimony as to the time the seizure was made after the papers came into the hands of the sheriff was contradictory in some respects.

The returns on the attachment writs show that identically the same property was seized under all the writs.

The returns on the writs of relator and of Ardis & Co. show that the writs of attachment were executed on the 6th day of December, 1897, and in the other cases on the day following, but notices of at-' tachment were all given the same day. The relator avers that the-papers were served after the attachments had all been made just as they were numbered on the back of the suits.

These attaching creditors joined in an intervention to annul or subordinate the attachment of one of the creditors, Mrs. J. A. Hewitt, made as we take it, prior in time.

The District Court rendered judgment in favor of the intervenors subordinating her attachment to those of the intervenors, and decreeing that the amount realized on her attachment should be divided pro rata among the contesting intervenors.

From this judgment, the relator and Ardis & Co. appealed to the Court of Appeals; the judgment of the lower court was affirmed.

The following is a quotation from the opinion: the evidence shows that all “the attachments were sued out” substantially at the same time and executed concurrently. In any event “all the creditors' joined in the suits — revocatory action — to annul or subordinate the attachments of the plaintiffs and should share in the privilege accorded the revoking creditors pro raia.”

From the foregoing, it is evident that there was no contest regarding the law, and that the attachments as to priority of right are controlled by the time of day they were levied and not by reference exclusively to the day on which it was that the writs were executed by seizing the property.

The questions involved are exclusively of fact. Passing upon these facts both the District Court and the Court of Appeals held that they were executed concurrently, questions of which a Court of Appeals has jurisdiction and is competent to finally determine.

Moreover the attaching creditors having joined in proceedings to* avoid a privilege claimed under a prior attachment it was\just and. proper to decide that the contesting creditors were entitled to a pro rata division of the proceeds arising from the privilege revoked.

It was a privilege securing a substantial right and the creditors-came, as relates to concurrence, within the purview of the provision of the law relating to the revocation of conveyances and privileges. Article 1977, O. 0.

The attachments were concurrently executed and the intervention, to which we have referred, joint; we think the conclusion was correct.

If we were to issue an order nisi it is manifest that our conclusion would be the same as now expressed.

The relator’s application for a rule nisi is not granted.


author: Miller, J. Breaux, J.

text:
    No. 12,836.
    Dan Simons vs. W. A. J. Lewis.
    Syllabus.
    1st. In suits for damages for slander, the defendant is entitled to the modification the words receive from the accompanying statements showing the meaning intended and understood by those to whom the words were addressed. Newell on Slander, p. 202, et seq.

    2nd. On the issue of malice in such cases, as well as to mitigate damages, testimony is admissible to show the occasion, the sense of wrong and other 'circumstances attending and prompting the expressions alleged to be slander, ous. Ibid : Sth Ann. 130 ; 15th Ann. p. 48.
    3rd. Though the defence of Justification in action for slander fail, the defendant is entitled to the mitigation of the damages arising from the fair interpretation of all he said and the circumstances under which he used the wordisfor which he is sought to be held. Ibid; 2nd Greenleaf, S. 425.

      On Rehearing.
    Utterances against a person, while in a state of great excitement, by one who' thinks that he has been wronged by that person are not, in law, Justifiable, but the circumstances under which they were made may be considered in I fixing damages.

      ON APPEAL from the Third Judicial District Court for the parish of Lincoln. Barksdale, J.

      W. A. Van Hook and J. B. Holstead for Plaintiff and Appellee.

      ■Price & Barksdale and Graham & Pearce for Defendant and Ap-pellant.
    Argued and submitted June 1, 1898.
    Opinion handed down June 13, 1898.
    Rehearing granted June 28, 1898.
    Argued and submitted on rehearing January 23, 1899.
    Opinion handed down February 6, 1899.
   The opinion of the court was delivered by

Miller, J.

The defendant appeals from the judgment condemning him to pay plaintiff five hundred dollars damages for slanderous words charged in the petition to have been applied by defendant to plaintiff. The “plaintiff answering the appeal, prays that the damages be increased.

The words used by defendant alleged in the petition are that plaintiff was a thief, rascal, had stolen from defendant and ought to be in the penitentiary, and the repetition of these and similar expressions is charged. The petition alleges malice; humiliation of plaintiff ■and his family, injury to his reputation and with the other usual allegations in suits of this character. Judgment is sought against defendant for three thousand, two hundred and fifty dollars. The defendant first excepted that the petition discloses no cause of action ■on the grounds, the words are not actionable; that plaintiff failed to allege good character or that he had any business or profession: and henee the petition does not show how plaintiff was injured by the words the basis of his action. The exceptions overruled, the answer with the general issue denied that the defendant had said that plaintiff stole; admits the words that he had said plaintiff as good as stole defendant’s goods, but the answer avers those words were used in reference to business transactions of defendant and plaintiff, i. e. that defendant had furnished plaintiff with supplies to make his crop in 1896; that plaintiff had made way with his crop trying to place it beyond defendant’s reach and “beat” defendant out of the money due him for the supplies, and that plaintiff had tried to buy from defendant a wagon in the same way, but had been refused credit; the answer averred that all the words, the basis of this suit, were accompanied with the statements of the conduct of plaintiff, in parting with his crop without paying for the supplies, and of his attempt to buy the wagon, and that the words were understood by those to whom they were addressed as referring to this conduct of plaintiff, and to the then pending law suit of plaintiff’s wife to establish her rights to his property to the prejudice of defendant as the husband’s creditor; the answer insists that the words used in the connection stated, and so understood, were not actionable; but the answer goes on to admit that defendant had said plaintiff was a thief, rascal, ought to be in the penitentiary, but averring the truth of these words, alleges various acts of the plaintiff as supporting the defendant’s charges.

In our view the exception that the words attributed to defendant imputing no crime are not actionable, unless actual damages are proved, was properly overruled. The subject came under discussion in an early case, the decision in which was that if the words imputed moral turpitude, though no crime, they furnished a cause of action and authorized damages without proof. Our jurisprudence since has been in accordance with the view then expressed. Miller vs. Holstein, 16th La. 389; Feray vs. Foote, 12th An. 894.

On the other points raised by the exception, we think the allegations that the plaintiff has been injured in his reputation; that he and his family have been subjected to humiliation and mortification, and have thereby sustained damages, must be deemed sufficient without the express averment that plaintiff enjoyed a good character, and without any further statement of the method of his injury.

Words spoken of another alleged to be slanderous to his injury, are to be construed in connection with all that was said, and with due regard to the occasion and circumstances prompting the utterance. It is shown that in using the expressions in reference to plaintiff the defendant stated the conduct of the plaintiff in disposing of his crop without paying for the supplies, and made reference to the litigation of plaintiff’s wife to establish her right on his property to defendant’s-prejudice. There is, we believe, no dispute that defendant did furnish the supplies, or that plaintiff, without paying for defendant’s supplies, disposed of the crop, nor any dispute as to the wife’s suit. We are satisfied that those to whom the defendant used the expressions, understood the expressions as intended only to convey defendant’s appreciation of plaintiff’s conduct in respect to his crop and the suit of his-wife. The words alleged to have caused damage to plaintiff, must, we think, be deemed modified by that meaning plainly intended and. understood by those to whom the words are addressed. In this view the injury to plaintiff is not to be measured by the- literal force of the words, but by the meaning intended to be conveyed. The law, too, in connection with the element of malice, makes allowance for the irritation arising from the sense of wrong under which the words are uttered. The qualification the slanderous words thus receive, and which tends to exclude or mitigate damages, is recognized in the text books and in our decisions. Newell on Slander, p. 292, 305, et seq.; Gilbert vs. Palmer, 8th An. 130; Artieta vs. Artieta, 15th An. 48. Our decision must, however, in the main, be controlled by a feature apart from the qualification to which the defendant is entitled and is-allowed.

The defendant, after the admission and explanation of some of the expressions attributed to him, plead the truth of the terms thief, rascal, and that he ought to be in the penitentiary, applied to the plaintiff, and in support of the justification thus pleaded, the answer-alleged various acts of plaintiff entirely disconnected with his conduct that prompted the expressions, the basis of this suit. While justification is not confined to the particular acts that led to the expressions alleged to be slanderous, it is none the less true,. that if the justification is not sustained by proof, there must be a judgment for damages. • Such judgment is the necessary consequence of the failure of the defence. The' English rule is that justification must be supported by the same testimony requisite to sustain a conviction for the crime imputed by the slanderous words, because under their system the justification sustained by proof, serves as an indictment for the crime.. Our rule exacts only the testimony requisite to discharge the burden of proof in civil cases (Newell, p. 795, S. 43). We have examined the-proof submitted in support of this plea of justification. The defencerefers to conduct of the plaintiff in the past, and in argument it is contended that the acts relied on to justify defendant, belonged to the past, have been revived by him to sustain charges directed against the defendant’s conduct of the present. Slander, however, is supposed to-affect a man’s reputation, and that is based on his past as well as-present conduct. Then, too, special acts may be proved to sustain the-general charge, and this case discloses no such lapse of time as would, exclude the defence, if there is such limitation of time. But the proof, in our opinion, does not support the defendant’s charges. One of these charges that plaintiff, in 1892, took possession of, and sold the cow of a neighbor, not accounting to him for the proceeds, is met by testimony to the effect the sale was authorized by the son of the neighbor, communicated to defendant, under which he acted. With respect to another cow alleged to have been stolen by plaintiff, while there is testimony tending- to sustain the charge, there is testimony directly to-the contrary. So with reference to the allegation of defendant, that plaintiff appropriated the fence rails of another, the testimony produced by defendant is not, to our minds, satisfactory, while there is-positive negative testimony. Testimony of other acts relied on by defendant to sustain his defence were excluded, because not pleaded.We think that in the justification of the general charge of crime, by proof of particular acts, it is requisite that plaintiff should have notice by suitable allegations that such acts would be relied upon by defendant (Newell, p. 650). Other acts of plaintiff, the subject of testimony we understand, are not pressed here. Without going into details of the testimony offered to support the justification, we deem it sufficient to state our conclusion, after a careful consideration, that the testimony fails to establish the charges. Of this conclusion was the-district judge, before whom, without a jury, the case was tried.

While the defence of justification fails, we do not understand that the unsuccessful defence affects the measure of damages. The cause of action is not the defendant’s pleadings, but the words uttered by him, the basis of the petition. Nor is the defendant precluded by the plea of justification from urging in mitigation of damages, the circumstances and occasion that led to the utterance of the words (2 Greenleaf, S. 426). We thus have the case presented of damages1 claimed for words literally imputing crime to tbe plaintiff, but intended and understood as referring to defendant’s conduct, not criminal. We have, too, on the issue of malice, the testimony of the irritation and resentment under which the words were uttered. The law does not exact there should be the exact basis for the angry feeling that prompts the utterance, but will, according to the circumstances, refer the utterance to the resentment of the moment instead of deliberate malice. The judgment in this case is for five hundred dollars, not resting, on our appreciation of this testimony, on any proof of actual damage. While the law and public policy require that slander shall be repressed, and for that purpose allows damages, on the theory of damage to the party the subject of the slanderous expressions, we do not think, under the circumstances of this case, that damages far beyond any conceivable injury should be given. In our view the judgment should be reduced to three hundred dollars.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be amended so as to allow the plaintiff three hundred dollars instead of five hundred dollars damages, and as thus reduced and amended the judgment of the lower court be affirmed, the costs of appeal to be borne by plaintiff and appellee.

On Rehearing.

Breaux, J.

Defendant and appellee avers that this court erred in allowing damages to plaintiff in the sum of five hundred dollars.

The judgment rendered was annulled, and a rehearing granted in order that the court might correct the decree and render a decree in accordance with the views expressed in the opinion; it is so manifest that the amount heretofore allowed is not the amount intended by the organ of the court and by the court; that it only remains for us to make a change by reducing the amount from five hundred to one hundred dollars to make it conform with our views, that nominal damages only should be allowed.

We have reconsidered the issues presented in this case after a second hearing, and we, a second time, arrived at the conclusion that defendant’s' charges against the plaintiff in a moment of anger, because of plaintiff’s failure to settle with him as he should have settled, are not, as far as the testimony shows, warranted by the facts.

The district judge, after having reviewed the facts, said in his opinion: “In fact, after reading over this evidence carefully, I conclude that Simons’ conduct, in regard to some of these transactions, is not above suspicion; there is not a preponderance of evidence that would justify me in saying that Simons is proven to be a thief and ought .to be in the penitentiary. Defendant has failed to prove, by a preponderance of evidence, the facts relied on as a justification, and it follows that plaintiff is entitled to damages. How much? No special or actual damage is proven. I believe defendant uttered these words in a moment of exasperation and under circumstances calculated to exasperate him — as stated once before he deservedly stands high and I do not believe he would deliberately wrong any man. I am satisfied that nominal damages would be sufficient to meet the demands of justice in this case;” citing a number of authorities in support of this view.

We agree with the learned judge of the District Court. In our judgment, defendant was unnecessarily hasty in his .denunciation (of. one who had been his debtor for many years) even on the assumption that he was sorely disappointed because of some dilatoriness as a debtor or intentional default in his promise to pay. There are, however, mitigating circumstances which were weighed by us heretofore, and to which it is our attention to give effect.

For reasons assigned it is ordered, adjudged and decreed, that the decree heretofore rendered is annulled, avoided. The law and the evidence being with plaintiff, it is ordered, adjudged and decreed, that the judgment of the District Court is affirmed at appellant’s costs.


author: Miller, J.

text:
    No. 13,029.
    Frank B. Williams vs. M. L. Broussard et als.
    Syllabus.
    This court again affirms it will not review the decision of a lower court involving no important question of law and exhibiting no deviation from the jur isprudence of the State.
    IN RE Frank B. Williams applying for certiorari or writ of error to the Court of Appeal, Third Circuit, State of Louisiana.

      Todd é Todd for Williams, Petitioner.

      Foster & Broussard, Weeks & Weeks and J. Zach Spearing for Defendants.
    Submitted December 15, 1898.
    Opinion handed down January 23, 1899.
   The opinion of the court was delivered by

Miller, J.

The relator seeks the writ of certiorari to review the judgment of the Court of Appeals for the Third Circuit, on the appeal of the defendants from the judgment in the petitory suit brought by relator in the Nineteenth Judicial District Court, parish of Iberia.

One error assigned by the relator is that the judgment of the Circuit Court disposed of the reconventional demand of the defendant in the suit, that demand being for an amount exceeding the jurisdiction of the Court of Appeals. As the Circuit Court affirmed the judgment of the District Court against defendant on the reconventional demand, we do not perceive that the relator, plaintiff in the District Court, has any cause of complaint, because of the affirmance of the judgment in his favor, even if the Court of Appeals was without jurisdiction of the demand in reconvention, or had passed on it. Both the relator, the plaintiff, and the defendant in the petitory suit, traced title to the common author, the plaintiff, relying on a sale by the wife of the common author, and as the basis of title she conveyed, on the dation en paiement to her by her husband. It is claimed the court erred in giving effect to the dation en paiement, because the consideration is stated to be the funds of the wife received by the husband. The other error assigned is that the defendant, in the course of the trial in the District Court, moved to take testimony to show the land sued for still belonged to the United States, thus assuming a position inconsistent, the relator charges, with the averment of title in defendant’s answer. The judgment of the Circuit Court maintained the title asserted in defendant’s pleadings, and hence they obtained no advantage from the alleged inconsistent ground they took on the motion; and the Circuit ■Court also held that defendants, acquiring their asserted title long after their vendor had placed on record his dation en paiement to his wife of the lands in controversy, could not question her title for the supposed defect in stating the consideration; the court citing in that •connection the line of authorities that in the petitory action when both parties claim under the common author, neither can contest .asserted relative nullities in the title of the other derived from the common author.

We take occasion again to call attention to the jurisdiction given to this court under Article 101 of the Constitution, under color of which the present application is made. The article does not confer on this court the appellate jurisdiction to review by certiorari the judgments cf the lower courts in all cases. The power to issue the writ is conferred mainly to secure uniformity in our jurisprudence by giving this court power to correct any deviation from that jurisprudence in the decisions of the lower courts, not susceptible of being brought here by appeal. It is manifest that the decision of the lower court turns on no questions authorizing the writ of certiorari sought at our hands, and the application is denied.


author: Blanchard, J. Blanchard, J. A

text:
    No. 12,512.
    Crescent City Railroad Co. vs. Board of Assessors, Et Al.
    Syllabus.
    (1.) In determining value of a corporate franchise, the earning capacity forms a basis of estimation. Sec. 28, Act No. 106, 1890.
    (2.) But it is not the sole basis. Starting with the earning capacity as a basis, it is competent for the assessor to consider other matters having a hearing upon the value of the franchise, other facts and circumstances tending to augment such value on the one hand, or diminish it on the other.
    (Three suits consolidated for purpose of trial and adjudication, and brought up in one transcript.)
    ON APPEAL from the Civil District Court for the Parish of Orleans. Theard, J.

      Farrar, Jonas, Kruttschnitt & Gurley for Plaintiff and Appellant.

      F. G. Zacharie for Board of Assessors and Tax Collectors, Defendants and Appellees.

      Samuel L. Gilmore, City Attorney, and J. J. McLoughlin, Assistant City Attorney, for the Oity of New Orleans, Defendant and Appellee.
    Argued and submitted June 19, 1897.
    Opinion handed down December 13, 1897.
    Rehearing granted June 29, 1898.
    Opinion handed down February 6, 1899.
   The opinion of the court was delivered by

Blanchard, J.

These cases present the question of the assessment of the street railway franchise of plaintiff company for the years 1894, 1895 and 1896.

A reduction of assessment for each year is demanded.

The gravamen of plaintiff’s complaint is that the Board of Assessors did not assess its franchise at a valuation ascertained by its 'earning capacity, but adopted another and a different method of valuation, and thereby violated Section 28 of Act No. 106 of 1890.

There is no allegation of relative over-assessment, and none of discrimination to its prejudice in the assessment made of the franchises of other corporations as compared with the assessment of its own franchise, and testimony offered on behalf of the plaintiff to show such discrimination was objected to and properly ruled out.

The inquiry is, therefore, limited to the question of actual over-assessment as the result of an alleged erroneous method adopted for the ascertainment of the value of the franchise.

Defendants’ evidence shows how the valuation adopted was arrived at. Restated from the testimony it is as follows:

As to the year 1896, the Board of Assessors found the stock issue of plaintiff company to be two million dollars, upon which a dividend of six per cent, had been declared. They found, further, an issue of fifty thousand dollars of six per cent, bonds, an issue of forty thousand dollars of six per cent, bonds, and an issue of three million of five per cent, bonds, upon all of which the interest had been paid.

These several amounts, figured to a basis of six per cent, earning-capacity, they found aggregated a total of four million five hundred and ninety thousand dollars as representing the value of the property. Plaintiff company had made a return to the Board of its tangible property, realty, rolling stock, road bed, etc., amounting to seven hundred and eighty-four thpusand seven hundred and thirty-three dollars, which the Board accepted as correct. This property being, assessed direct in the several taxing districts in which located, the Board deducted its value from the four million five hundred and: ninety thousand dollars, above stated, and this left a net result of three million five hundred and nine thousand two hundred and sixty-seven dollars as the value of the franchise. Concluding, after discussion and consideration, that the property, under existing conditions, would hardly liquidate for that sum, it was decided to make the total assessment of the plaintiff company’s property, corporeal and incorporeal, two millions of dollars. From this sum was deducted the value of its tangible property as aforesaid, seven hundred and eighty-four thousand seven hundred and thirty-three dollars, and this left one million two hundred and fifteen thousand two hundred and sixty-seven dollars as the assessable value of its franchise.

Accordingly, that sum was decided on as the proper valuation.

As to the years 1894 and 1895, the same method was adopted in reaching the valuation at which the franchise was assessed for those years. That valuation for 1894 was six hundred and forty-nine thousand six hundred and fifty dollars, and for 1895, one million four hundred and eight thousand and fifty dollars.

Plaintiff’s contention is that the assessment of its franchise for 1894 should be reduced to one hundred and forty-nine thousand six hundred and fifty dollars, and to four hundred thousand dollars for each of the years 1895 and 1896.

This company’s system of street railway aggregates fifty-one miles.

The company was organized in 1866, with franchise extending-years from that date, and has acquired an extension of existing franchises, and new franchises, to run for fifty years from the expiration of its present charter.

In June, 1893, the capital stock of the company was increased to two million dollars, represented by twenty thousand shares of one hundred dollars each. Early in that year the New Orleans Traction Company, Limited, became a majority stockholder of the plaintiff company.

Tt holds sixteen thousand two hundred and forty-seven shares of the total issue of twenty thousand shares. What is known as “the minority stock” represents three thousand seven hundred and fifty-three shares.

The official quotations of the New Orleans Stock Exchange show this stock to have had, in the latter part of 1894 and the early part of 1895, a market value of from eig'hty-five to ninety and one-half dollars per share of one hundred dollars, and of eighty dollars per share in the early part of 1896.

■Semi-annual dividends of three per cent, upon the stock were /declared for the years 1894, 1895 and 1896, and are guaranteed by the . New Orleans Traction Company, Limited, for all the subsequent years •.to the expiration of the extended franchises of plaintiff company, and -even beyond that to “any renewals thereof for additional periods that -juay hereafter be obtained.”

Under this guaranty, should’the earnings of the plaintiff company be insufficient, after payment of operating and other expenses, to pay a dividend of six per cent, per annum, the Traction Company supplies the funds to do so.

The quotations of the Stock Exchange further show that plaintiff company’s issue of three millions of five per cent, gold bonds were worth in the market, in the latter part of 1894 and early part of 1895, from ninety-four and one-half to ninety-seven, and in the early part of 1896, from ninety-one and three-fourths to ninety-four.

The law declares that corporations shall be assessed directly upon all property owned by them. In making such assessments, “the sworn .statement of condition made next preceding the date of listing shall ■be considered.” This implies that such “sworn statement” is to be .made and furnished by the officials of the corporation, and the act •declares that a failure to do so shall subject them to penalties pre.■scribed. Certain corporations, not required by law to make sworn .•statements of condition, are enjoined, under similar penalties, to furnish “a sworn statement of the cost of their property, real and •personal, and of the value at which the same is carried on the books, :and in determining the assessment these valuations shall be considered.”

There is also required to be furnished “a sworn statement of the earning capacity of the corporation, which said earning capacity shall form a basis of estimating the value of its charter or franchise.”

Section 28, Act No. 106 of 1890.

From this language it seems clear that the law maker did not intend .a corporation’s earning capacity to be the sole basis of estimating the value of its franchise.

The language used is “a basis,” not the basis. Starting with the •earning capacity as a basis, those whose duty it is to make assessments .are expected to consider other matters having a bearing upon the value •of a franchise, other facts and circumstances which may tend to .augment such value on the one hand, or diminish it on the other.

This has heretofore been recognized by this court. In Crescent City Railroad Co. vs. City of New Orleans and Board of Assessors, 44th An. 1058, it was said:

“The earning capacity of property, without regard to its nature, is not always a criterion of value.” And the court, in that case, further ■declared that while the statute directs the earning capacity to be ■taken as a basis, it does not exclude consideration of any other element •of value it may possess.

Under the law, and this interpretation of it, it was competent for ■.the Board of Assessors, in determining the value of plaintiff’s franchise, to take into consideration and give proper weight to the facts ■and circumstances, hereinbefore mentioned, showing the conditioñ and standing of this company.

The obligation of the Traction Company is not merely to supply funds to pay six per cent, dividend on certain minority stock; but to give to Hie whole issue of plaintiff company’s stock the character and prestige which belong to shares upon which a certain dividend of six per cent, annually, for a long period, is assured. In other words, it .guarantees six per cent, dividend upon the whole stock. It matters not by whom held. Wherever it js, it stands assured of this dividend. Atlantic Tel. Co. vs. Commonwealth, 66 Penn. St. 57.

It matters not where the money comes from, so that it is forthcoming, is demandable on the stock and the demand is met. Commonwealth vs. Pittsburg, etc., R. R. Co., 74 Penn. St. 83. This certainty of the dividend gives the shares their principal value, causes them to quote high on the stock market, and it is an indisputable fact that the one million six hundred and twenty-four thousand seven hundred dollars of this stock, held by the Traction Company, was worth in the market in the early part of 1896, in cash, eighty cents on the dollar, or one million two hundred and ninety-nine thousand seven hundred and ¿sixty dollars, had that company chosen to dispose of it.

In its hands it must be considered to have had that value at that time. This 'stock does not lose its character or quality as dividend-paying stock merely because of the fact that it is in the hands of those-who guarantee the dividend. The Traction Company saves the-amount it might have to pay as dividends on the stock by owning the-stock itself. It thus derives the benefit of a credit the equivalent of the dividends the stock would .earn in other hands. This is compensation equal to payment of the dividends.

This guaranty of the Traction Company can not be regarded otherwise than as an additional source of revenue enjoyed by plaintiff company. Under the contract between the two companies, no matter what shortage there may be, the Traction Company makes it up. If the earning's of plaintiff company fall short of meeting the operating expenses and fixed charges of its railway system, the Traction Company is obligated, without charge, to supply the deficit, and, in addition, to supply the funds to meet the six per cent, dividend on the stock.

Such a contract auxiliary to plaintiff’s charter greatly strengthens the latter, and gives to its franchise a value beyond what it would have if dependent alone upon its earning capacity. It is preposterous to say that this circumstance should not be taken into consideration in determining the value of this franchise.

This court said in Railroad Company vs. City, 44th An. 1055: “Revenue is an element of value not 'to be overlooked in assessing such property as that of plaintiff, even were the statute silent on the subject.”

It can make no difference what the source of the revenue is. It is equally revenue whether derived from- fares paid by passengers on the railroad, or whether derived from the Traction Company pursuant to the terms of an advantageous contract made with it by plaintiff compa.ny.

In State ex rel St. Charles Street Railroad Company vs. Board of Assessors, 48th Ann. 1151, this court approved the addition to the sum paid for dividends, of an amount annually set aside as a sinking fund and used to reduce the principal of a bonded debt — this act of the assessors resulting in largely increasing the assessment upon the franchise of the railroad company.

Accordingly, if plaintiff’s earned revenue, in the instant case, is eked out- by revenue from another reliable source, so that the two together' suffice to pay all expenses and charges and a six per cent dividend on the stock, can there be valid objection to the Board of Assessors considering this fortunate circumstance and giving effect to it in fixing the amount of plaintiff’s assessment? Surely not. Rather was it their duty to do so.

This view renders it unnecessary to determine what expenses, charges, etc., should, and what should not, be deducted from gross earnings in order to ascertain the true net surplus earnings of a corporation, to the end of capitalizing that sum at six per cent as a basis of arriving at the value of its franchise.

It also renders it unnecessary to determine the question raised by the defence in this court as to how far, or to what extent the Traction Company has, by its contract with plaintiff company, relieved the latter of the payment of the cost, expenses and charges incidental to the operation of its trolley lines — the ratio of plaintiff’s surplus revenue, liable to be capitalized as above, being in proportion to such relief.

And it likewise renders unnecessary a decision upon defendant’s plea of estoppel based upon plaintiff’s declaration of dividends of six per cent upon its stock.

In his answer to the suit for reduction of assessment for the year 1896, the attorney for the Tax Collector asks for judgment against plaintiff for ten per cent attorney’s fees upon the aggregate amount of taxes and penalties to be collected, pursuant to Section 57 of the Act of 1890.

Tn the suits for reduction of assessments for the years 1894 and 1895, no such demand is made.

In the court below a motion to amend the judgment so as to include ten per cent attorneys’ fees was overruled.

Counsel for defendant in their brief filed in this court ask that the judgment appealed from be amended so as to allow the attorney’s fees.

This might be done so far as the suit on the assessment of 1896 is 'Concerned, had a formal motion to that efféct been filed in this court. But no such motion was filed.

Judgment affirmed.

Nicholls, O. J., takes no part on account of absence when case was .argued.

On Rehearing.

Blanchard, J. A

rehearing having been granted and a re-argument had, a further consideration of the case leads the court to a modification of its former decree. It is to the public interests that cases of this character be determined as speedily as possible, consistent with the ends of justice, and, accordingly, without remanding the case, thereby involving further delay and more expense, we will ourselves reduce the assessment of plaintiffs franchise for the years 1894,. 1895 and 1896 to the sums we think, under the evidence in the record, will do substantial justice to the State and the tax-payer and end this vexatious and lengthened controversy.

On the basis of assessment adopted by the Board of Assessors, and the calculations made by them, they found three million, five hundred and nine thousand, two hundred and sixty-seven dollars, as the value of plaintiff company’s franchise. But, after discussion and consideration, concluding that the property under existing conditions, would not liquidate for that sum, the Board decided to make the total assessment of plaintiff’s property, corporeal and incorporeal, two millions of dollars. From this sum they deducted the value of its tangible property, seven hundred and eighty-four thousand, seven hundred and thirty-three dollars, and this left one million, two hundred and fifteen thousand, two hundred and sixty-seven dollars, as the assessed value-of its franchise for 1896. We think this figure, in view of many circumstances unnecessary to recite, too high, and will reduce the assessment on the company’s franchise to nine hundred thousand dollars for that year.

The assessment of the franchise for 1895 was, on the basis adopted' by the Board, and in view of other considerations entering into their calculations, fixed at one million, four hundred and eight thousand and fifty dollars. We think this too large a sum and will reduce the-same to seven hundred thousand dollars.

And so with the assessment of the franchise for 1894, which was fixed by the Board at six hundred and forty-nine thousand, six hundder and fifty dollars. This, in the modified view we take of the case, we think excessive and will reduce the same to three hundred thousand dollars.

These reductions are intended to apply only to the years named, and it is not contemplated that the Board of Assessors should be thereby fettered in their judgment of the proper assessments to be placed upon-plaintiff’s property and franchise for subsequent years, with respect to-which the considerations now impelling- the court to the present reductions may not exist.

It is, therefore, ordered that the decree hereinbefore handed dowm be set aside, and it is now ordered, adjudged and decreed that the judgment appealed from be so amended as to reduce the assessment of-plaintiff company’s franchise for the year 1894 to three hundred thousand dollars, for the year 1895, to seven hundred thousand dollars, and for the year 1896 to nine hundred thousand dollars, and that as thus amended the judgment of the court a cjua be affirmed, costs of appeal to be borne by appellees.

Miller, J., dissents.


author: Blanchard, J.

text:
    No. 13,041.
    New Orleans Ware House Co. vs. L. H. Marrero, Tax Collector, et als.
    Syllabus.
    1. Whether Section 26 of Act 106 of 1890, fixing the time within which suits-must be brought to reduce tax assessments, be reviewed as a statute of peremption, or one of prescription, the exception of prescription herein filed' must be overruled.
    2. The action is saved from peremption by the filing of the petition before the-•2nd of November of the assessment year, and saved from prescription by service of process upon the tax collector prior to that date.
    3. Not essential to the interruption of px-escription that sendee must, too,have been made upon the Assessor and Police Jury prior to that date.
    4. The tax-collector, the assessor and the police jury are but common agencies-of the same sovereign power imposing the taxation, and service upon the tax collector sufficient under the statute to constitute legal notice to the-sovereign of the timely institution of the action.
    CERTIFIED from the Court of Appeals, Fifth Circuit, by theJudses thereof, applying for instructions.

      James D. Seguin for Plaintiffs, Appellants.

      Robert J. Perkins, District Attorney, for Defendants, Appellees.
    Submitted January 7, 1899.
    Opinion handed down January 23, 1899.
   'The opinion of the court was delivered by

Blanchard, J.

The assessor of the parish of Jefferson estimated certain real property belonging to plaintiff corporation at sixty-five thousand dollars, and extended the same upon his assessment rolls for the year 1897 at that valuation.

This was resisted by the corporation on the ground that the true value of the property was forty-five thousand dollars, and it was insisted that it should be assessed for taxation only at that sum.

From the adverse action of the Assessor, the matter was brought by the corporation before the Police Jury of the parish of Jefferson, sitting as a Board of Review, but the relief sought was there denied.

Whereupon this action was brought in the District Court of Jefferson parish to judicially test the correctness of the assessment.

The prayer of the petition is that the assessment as returned be declared excessive and that the same be reduced to forty-five thousand dollars.

The Assessor of the parish, the Police Jury of the parish, and the Sheriff, who is ex-ofjicio Tax Collector, were made parties defendant.

On the day the petition was filed, October 30, 1897, the Sheriff and Tax Collector accepted service thereof and waived citation.

The Assessor and President of the Police Jury were not cited until December 1st, following.

The delay in service upon these officials is attributed by plaintiff to the existence oí local quarantine regulations, established because of the prevalence of yellow fever, and the consequent inaccessibility of the parties named.

This inaccessibility is denied by defendants, who insist that timely service might have been made had the proper diligence been observed by plaintiff.

Defendants tendered, by way of peremptory exception, the plea of prescription in bar of the action.

This plea is founded on Section 26 of Act No. 106 of the Acts of 1890.

It is there declared that the action at law to test the correctness of assessments as to the description of property listed and the valuation thereof for taxation “shall be instituted (by the tax-payer) on or before the first day of November of the year in which the assessment is made.”

The contention of defendants is that this clause of the statute ■ establishes a prescriptive term, and that, following the general rules applicable to prescriptions, citation and service of petition must be made upon the defendants in the action before the prescriptive term has run; that the mere filing of the petition in court on or before the first of November does not suffice. It is, therefore, insisted that while the petition itself in this case may have been seasonably filed, •service upon two of the defendants was not made until after the first ■of November, and because of this, prescription applies and the right to prosecute the demand is barred.

The contention of plaintiff is that the law referred to is not a pre■scriptive statute, but one of peremption only; that prescription is a manner of acquiring the ownership of property, or discharging debts, by the effect of time and under the conditions regulated by law (C. C. 3451); that neither the acquisition of the ownership of property nor .any question of the discharge of any debt or obligation is at issue or can arise in this suit; that peremption (Latin, "perimere ” to destroy) is simply the loss or destruction of a right, as of action, etc.; that ■statutes of peremption are not governed by the rules applicable to •statutes of prescription; and that the statute in question here gives to the taxpayer, complaining of his assessment, the right to institute an action to test its correctness at any time down to and inclusive of the 1st of November of the year of assessment.

It is insisted that what the statute means is that if the petition setting forth the cause of action is filed on or before the 1st of November, it suffices; that service and citation on or before that date is not essential to preserve the right of action, and if made within a reasonabletime thereafter the intendment and object of the law is fulfilled. It is conceded that if the action is not instituted before the 2nd of November, i. e.- — if the petition is not filed before then — the right of action is perempted, destroyed.

On the issues of law thus presented the District Judge rendered judgment sustaining the contention of the defendants, holding the ■exception good and dismissing the suit.

On appeal by plaintiff to tbe Court of Appeals, Fifth Circuit, that, tribunal reversed this judgment, and its opinion and decree maintained the contention of plaintiff with regard to the exception.

It overruled the exception and ordered the suit reinstated to be-proceeded with according to law.

Whereupon, defendants’ counsel having filed an application for re-hearing, pending consideration of the same, the Court of Appeals,, because of the great importance of the issues raised to the State and its political sub-divisions, as involving a correct interpretation of a revenue law on points not heretofore passed upon by this court, certified the question of law, presented in the case, to this tribunal for its-determination pursuant to the provisions of Article 101 of the State Constitution.

Opinion.

Our learned brothers of the Court of Appeals have decided the case-, correctly. That is to say, the decree handed down by them meets our approval. But we rest our concurrence on grounds different from those presented in the opinion filed by them.

Pretermitting an expression of opinion ourselves on the questions-raised in the respective contentions of the plaintiff and defendants,, hereinbefore set forth, with regard to the exception filed by defendants, we hold that whether Section 26 of the Act of 1890 be viewed as a statute of peremption, or one of prescription, the case, on the exception, is with plaintiff corporation; that its action for reduction of the assessment is neither perempted nor prescribed; that it was saved from peremption by the filing of the petition before the second of November of that year, and saved from prescription by service of process-upon the tax collector before that date; that it was not essential to the-interruption of prescription that service must, too, have been made upon the Assessor and Police Jury prior to that date; that the three-officials, Tax Collector, Assessor and President of the Police Jury, are but common agencies of the same sovereign power which imposes the taxation as to which the assessment of plaintiff’s property- was a requisite step; and that the service which was madp upon the Tax Collector was full and complete legal notice to the sovereign of the timely institution of the action, thereby interrupting its prescription, it appearing by the very terms of the statute itself that that official (Tax Collector) is designated as one authorized and required to stand in judgment in such anr action as the present one.

After reciting that the action to test the correctness of assessments complained of shall be instituted on or before the first day of November of the year in which the assessment is made, Section 26 of the Act of 1890, in the very next sentence, declares that “in all suits for the reduction of assessments the State Tax Collector of the respective-parishes shall be made parties.”

The Assessor is not specially named, the Police Jury is not specially named, in this Section 26, where the limit of time as to the bringing of the action is fixed, but the Tax Collector is; and while those other-officials were quite properly made parties defendant in this assessment ■ — reduction suit, it'is clear from the language of the act that the Tax Collector must be made — is required by the statute to be made — a party defendant. And since he is thus declared to be a necessary defendant, in the very clause of the law fixing the period of peremption- or prescription of the action, it must be held that the law-makers intended service of process upon him to be binding upon the sovereign-power levying and enforcing the tax.

For the reasons assigned it is ordered that this cause be remanded to the Honorable Court of Appeals, Fifth Circuit, with instructions to overrule defendants’ application for rehearing, and to remand the case to the District Court, Parish of Jefferson, to be proceeded with as-directed in the decree of the Court of Appeals, and in accordance with the views herein expressed — costs of all the courts in this behalf expended to be borne by defendants.