text:
    No. 12,703.
    Achille E. Marx et als. vs. Meyer Bros. et al.
    1, Several creditors o£ a common debtor, may join as plaintiffs in. a revocatory action'to annul acts of the debtor and others done in fraud of their rights, and may make parties defendant in such action all who are charged with complicity in the collusion.
    2. While the claims of such creditors may not be cumulated for jurisdictional purposes, where, under the averments of the petition, a moneyed judgment is ciaimed against defendants largely in excess of the minimum jurisdictional limit of this court, the appeal will be maintained.
    3. The law reprobates all unfair preferences by which an insolvent debtor seeks to give one creditor an advantage over another.
    4. And the fact that the machinery of the law and the courts is used as a cloak to effectuate the fraudulent purpose aggravates the offending.
    APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.

      A. A. Gunby and O. Newton for Plaintiffs, Appellants.

      Charles J. Boatner, F. G. Hudson and E. T. Lamkin for Defendants, Appellees.
    Argued and submitted January 14,1898.
    Opinion handed down April 18, 1898.
    Judgment annulled and rehearing refused June 28, 1898.
   The opinion of the court was delivered by

Blanchard, J.

“Meyer’s Star Emporium” was a mercantile establishment located at Monroe, Louisiana, with a branch house at Alexandria.

These establishments were owned and conducted by Mrs. Alice Meyer, a married woman, separate in property from her husband, doing business as a public merchant.

Jonas Meyer, her husband, was charged with the direction and management of the business.

. In the summer and autumn of 1896 he made large purchases of goods in northern cities on credit, based upon representations of the solvency and prosperity of the firm.

These goods having been received at Monroe and Alexandria, sales and collections were pressed and much money was realized.

But no debts for the goods thus bought, beyond an inconsiderable amount, were paid.

The accounts and notes for these purchases were maturing. District Oourt was in session in Ouachita Parish in December 1896. The term was drawing to a close and the final adjournment of the court occurred December 24th.

On the evening of December 22nd, about six or seven o’clock, after business hours, and after the office of the clerk of court had been closed for the day, counsel representing certain creditors of Mrs. Alice Meyer appeared at the Court House and dispatched a deputy-clerk to the residence of his principal for the key of the office. This - being procured the attorney presented and caused to be filed seven suits against the Meyer Star Emporium and its proprietor.

The claims upon which these suits were based aggregated over, thirty thousand dollars, and on each the debtor had confessed judg-.ment.

These favored creditors were Meyer Bros., B. & S. Adler, P. Lowenberg, Miss Eva Steinau, Benjamin Adler, the Monroe National Bank and the Merchants & Farmer’s Bank.

Meyer Bros, were merchants in Monroe, and brothers of Jonas Meyer, the husband and business manager of the debtor.

Besides their own claims against this debtor, they were sureties on the note for ten thousand dollars which the debtor had executed in favor of B. & S. A.dler, upon which note the suit of the latter was based.

Meyer Bros, were also endorsers on the paper held by the two banks named, and declared on in their suits.

P. Lowenberg was brother-in-law of Jonas Meyer, and Miss Steinau was the aunt of Mrs. Alice Meyer.

It thus appears that all the claims upon which judgments were confessed were either held by members of the family of the debtor, or secured by some of them.

It also appears that the claims thus confessed were not current indebtedness of the firm in the sense that they represented the recent purchases of goods, except possibly to a small extent-. They were, for the most part, over one year old and some of them two years old at the time the judgments were confessed. "

The seven suits referred to were entered on the judge’s docket on December 23rd., but not on the bar docket of the court. The confessions of judgment were proved up, not in the morning hour of the court, as is the custom at the Monroe bar, but some time in the afternoon (about 3 o’clock) of December 23rd. This was an hour when, usually, few attorneys are present in court.

Judgments, based on the confessions, were immediately signed ■■and’executions thereon were issued at once, the same afternoon, in all the cases, and placed in the hands of the sheriff of Ouachita Parish, and alias writs thereof sent by speciat messenger, on that •evening’s train, to the sheriff of Rapides Parish.

The sheriff of-Ouachita immediately seized the Meyer’s Star Emporium at Monroe, and eirly the next morning, December 24th, the sheriff of Rapides seized and closed up the branch house at Alexandria. -

These seizures embraced everything owned and possessed by the debtor, including the books and accounts of the business; and all th6 property and effects, rights and credits thus seized, or attempted to be seized, were advertised for sale under all the writs in the-same advertisement at the same time. '

Information of the confessions of judgment, and proceedings taken thereunder, coming to the knowledge of other creditors of the debtor, fourteen of them did, on December 24, 1898, file suit's, separately, on their- claims, coupled with attachment, under which were seized all the goods, effects and property of the debtor — the same antecedently seized by the seven creditors, who had secured the confessions of judgment.

"These fourteen creditors, in aid of their attachments, then instituted the present action, the object of which is to set aside, revoke and annul the previous seizures made at the suit of the seven favored creditors, as being a fraud upon their rights.

Asserting a common cause, they unite in one suit and make parties defendant the seven creditors aforesaid, the debtor and her husband, Jonas Meyer, and also the sheriffs of-Ouachita and Rapides Parish.

The petition recites the facts and circumstances hereinbefore mentioned, and avers that the seven creditors had acted together •throughout with one common design to cover, absorb and exhaust all. the property of the common debtor, and that the acts complained of constituted one fraudulent and collusive proceeding inaugurated and carried out for the purpose of defeating the rights of the other • creditors and giving an unfair preference to those favored.

. They attack, the writs of fi. fa. and alias writs thereof, issued on ■the seven judgments confessed, as irregular, illegal, null and void, ■for the reason that they were issued before the judgments had become executory and exigible in this, that they issued before the term of court, at which the judgments were rendered, had ended, and it is urged that no legal execution can issue on judgments until after the close of the term of court; that judgments do not have any effect, either for the purpose of seizure, nor as judicial mortgages, as against other creditors, until after the final adjournment of the court; and that, accordingly, the executions on the seven judgments, having been issued, without authority of law, conferred no power on the officers to seize property thereunder, and such seizures are illegal and void, made without final process, and no sales of property under the writs could legally be consummated.

They attack the confessed judgments, thems.elves, as void, on the ground that the common debtor was insolvent to the knowledge of the favored creditors, and, further, the allegation is made that the claims upon which the judgments were confessed were not just and due, and that Mrs. Alice Meyer owed nothing at all to Meyer Bros., nor B. & S. Adler, nor P. Lowenberg, nor Miss Steinau, nor to B. Adler.

It is represented that the confessions of judgment were given to avoid the effect of the law making it a crime for a merchant to sell goods, not paid for, out of the usual course of business with intent to defraud the vendor.

Injunction to stop the sale of the goods seized under the judgments and executions attacked was sought, and an order therefor made, but bond was fixed at thirteen thousand dollars, which plaintiffs could not give, and, thus, no injunction issued.

The prayer of the petition is for judgment decreeing the confessions of judgment, and the judgments based thereon, collusive and fraudulent, null and void, and compelling the seven favored creditors to restore and refund the moneys, property, profit, advantage, or benefit received by them in virtue of the confessed jndgments and the proceedings had thereunder.

The suit was filed and the parties cited before the sale of the property, seized under the writs attacked, was made.

The executions were proceeded with and the property was sold, Meyer Bros., one of the seven favored creditors, becoming the purchasers thereof. No part of the purchase price was paid into the sheriff’s hands, except costs, taxes, etc. It was retained by the purchaser — the amount thereof being credited by the sheriff on the writs, by order of the attorneys of the seizing creditors.

The property was sold in bulk, that is to say, all the goods in the* Monroe store was sold in globo as one stock, and the same as to the goods in the Alexandria store. Meyer Bros, were purchasers of both stocks.

Seven other creditors of Mrs. Alice Meyer appear by intervention and join plaintiffs herein, making, substantially, the same allegagations and seeking the same relief.

Mrs. Alice Meyer answers averring that the confessions of judgment were given by Brer in good faith, and because she was advised and believed it was her duty to do so; that the debts were justly due, representing moneys and credits advanced to her commercial business; that being unable to meet same, or secure extensions thereof, she confessed the judgments at the request of the creditors obtaining the same; that her inability to meet her obligations resulted from failure of crops, depression of business in consequence, etc. She denies any purpose to defraud her creditors or give an unfair preference.

The creditors, whose judgments are attacked, deny the fraud and collusion charged; deny any concert of action between themselves to the prejudice of the other creditors, or to obtain an illegal preference ; and assert that the proceedings taken by them were in due and ordinary course of law, for the protection and enforcement of their rights according to the laws of the land. They deny the prematurity of the issuance of the writs of fi. fa. on their judgments, and aver that if premature the same is nothing more than an irregularity, of which only the judgment debtor may complain.

On the issues as thus made up, the judgment below was in favor of defendants, and plaintiffs and intervenors appeal.

On Motion to Dismiss Appeal.

Two motions to dismiss are presented.

The first, on the ground of the defective character of the certificate of the clerk attached to the transcript, in that it does not certify that all the proceedings had in the District Court are fully and correctly transcribed. This is met by a motion on behalf of appellants to have the certificate corrected should the court determine there is force in the objection made to the certificate.

We do not find that the motion to dismiss on'this ground is insisted on in the brief of counsel for appellees.

Besides, while more care should have been taken in the preparation of the certificate, we do not find it so deficient as to make it necessary to remand for correction, which, otherwise, would be the proper course to pursue. Barham vs. Livingston, 11th A. 604.

The second, on the ground that this court is without jurisdiction ratione materias in this, that plaintiffs and intervenors have cumulated their several demands and joined in one action against defendants, and that while the aggregate of these demands is largely beyond the amount necessary to vest this court with jurisdiction, none of the several demands of appellants is of a sum sufficient to give the court jurisdiction.

The aggregate of the claims of plaintiffs and intervenors is about twelve thousand dollars, but no one of them equals the sum of two thousand dollars.

That the several creditors who bring this action could legally join therein, and could also join as parties defendant all who are charged with colluding for the purpose of defrauding them, is not an open question.

Williams vs. Hawthorne, 14 La. Ann. 615-625.

Appellees insist that this is a revocatory action pure and simple, that the several plaintiffs can recover, if successful, only to the extent that the separate interest of each is involved, and that while they can join for the purpose of prosecuting a common demand against a common debtor and others charged with fraud, their claims cannot be cumulated for jurisdictional purposes.

In the instant case, however, plaintiffs do not merely seek to avoid the transactions complained of in their effects upon themselves (34 La. Ann. 1215), but the prayer is to annul t^em outright. Thus, the annulment is demanded of the confessions of judgment given the favored creditors, as well as the judgments of the court (for more than two thousand dollars in each case) based thereon. Also of the writs of ft. fa. issued on the judgments, and of the sheriffs’ sales thereunder. An injunction to stop the sales was asked and the order granted, but, as we have seen, never carried out because bond was fixed at an amount exceeding the aggregate of plaintiffs’ claims. The grounds upon which the injunction was sought were something more than the usual revocatory grounds. They embraced averments of the illegality and insufficiency of the writs, of the seizures thereunder, of the inventory, appraisement and advertisement of the property, and on these grounds the executions and sales are sought to be annulled, as well as on the ground that they were but successive steps in the carrying out of a fraudulent and collusive purpose to defeat the rights of plaintiffs by giving an unfair preference to the favored creditors. The verity of the claims on which the confessions of judgment are predicated is assailed, and the allegation is made that these claims are not just or due.

In the petitions filed in intervention, besides the prayers already ■ noted, the additional one is made that in the event the property seized is sold or disposed of during the pendency of the suit, Meyer Bros, and the other seizing creditors be condemned in solido to pay' the value thereof to plaintiffs and intervenors. Thus is sought a judgment against defendants largely in excess of the minimum jurisdictional limit of this court.

These allegations, the various demands made, the relief sought and the decrees prayed for, show that plaintiffs’ suit is not merely an ordinary revocatory action where the test to be applied as .to jurisdiction is the amount claimed by the complaining creditor.

Had the judgment of the lower court been against defendants, it can not be doubted that an appeal by them would lie to this court. Such a decree would have annulled judgments, executions and sales for amounts very largely in excess of what is necessary to give jurisdiction here, and there might have been a judgment in solido, against defendant creditors (such as is now sought here) for the return of the money realized at the sheriffs’ sales, as prayed for by intervenors. An appeal by the party cast from such a judgment and decree could not, surely, go to any other court than this. Will it be claimed that defendants might come here with their appeal, but plaintiffs cannot?

The motion to dismiss must be denied.

On the Merits.

The statement of this case hereinbefore made would seem to render it unnecessary to add much more.

There was a deliberate purpose on the part of this insolvent debtor to give an unlawful and fraudulent advantage to certain creditors. There was equally a purpose on the part of the favored creditors to receive and profit by this advantage.

It was done under the garb of legal sanctity. It was an attempt to shield the property of the debtor from the grasp of certain cred-. itors not favored, and transfer same into the power and possession of certain other creditors who were favored, and this was sought to be consummated through the forms of judicial proceedings.

The foundation of this was laid months before. It began when Jonas Meyer, the manager of the debtor, went to northern cities on a purchasing tour in the summer and fall of 1896. Prior to that time all the debts held by the creditors afterwards favored had been incurred. Theirs were not obligations contracted on the purchasing tour, but the goods of other and later creditors, bought on that tour, were, by the attempt referred to, sought to be diverted from the payment of debts contracted in their purchase, and used exclusively in satisfying anterior indebtedness of one and two years’ standing.

These later creditors were, there is strong reason for believing, the victims of a plot, the object of which was to load up the Star Emporium with their goods, sell out as rapidly as possible for cash, appropriate the cash, and tnen under forms of law turn the remainder of the goods over to the sheriff for the benefit of relatives — making a family affair of the seizure.

The representations made by Jonas Meyer in making the purchases were false and fraudulent. He made statements to the effect that his wife was worth twenty thousand dollars over and above liabilities, and that the crops in his section were good and collections in the fall would be satisfactory. To one vendor of goods he made the further statement that his house only owed one thousand dollars, was in better shape than ever before, and doing a good business. His bill with them was nearly double what he had been in the habit of buying. He tolS another he was buying larger than usual and gave as a reason that his house was in better condition than ever, that the crops were good and he expected to do a large business. He also bought from this firm twice as much as had been his wont. To another house he made the same statement as an excuse for buying double the usual quantity of goods. Another firm, from whom he had purchased largely more than was his custom, held up the shipment of the goods pending additional information from him relative to his condition. To them he made the statement that his wife possessed assets amounting to two dollars for every one dollar she owed, and on this representation the goods were permitted to go forward.

The real facts were that the debtor was utterly and hopelessly insolvent when Jonas Meyer went north to purchase goods.

She owed then over forty thousand dollars, perhaps as much as fifty thousand dollars. Instead of the crops being good, an unprecedented drought was on, having commenced in April and not ending until October, which destroyed the crops to an extent so great that government and other aid was solicited in behalf of the stricken region.

Jonas Meyer admitted on the stand he knew the condition of the crops when he started North to make his purchases.

He kept concealed from those he traded with the fact that his house owed Meyer Bros, an enormous sum. * He told them only of the small indebtedness due the banks in Monroe.

The fact was that Meyer’s Star Emporium owed Meyer Bros, between forty-five thousand dollars and fifty thousand dollars in notes, accounts and loans, and from the testimony .it appears that the indebtedness of the house must have been about sixty thousand dollars when the seizure occurred.

Jonas Meyer returned to Monroe from the North in October. He had bought his goods on such terms as to time that the bills would not mature until late in December and through January. Not one of plaintiffs’ and intervenors’ claims was four months old when the seizure was made.

Notwithstanding the drought the business shows cash sales and receipts for October, November and December amounting to about thirty thousand dollars. This is exclusive of sales on credit. But up to the time the stores were closed by seizure, it does not appear that anything was paid on account of the thirty thousand dollars worth of goods purchased in the summer and fall, save the paltry sum of about nine hundred dollars.

Early in December Herman Meyer, of Meyer Bros., wrote Adler, who held a claim for ten thousand dollars (for which Meyer Bros, stood surety), telling him the Star Emporium was in a bad way and advised him to send his claim right away to attorneys (mentioning the law firm who were his own attorneys), that they might protect his interest.

About the same time Miss Steinau (aunt of debtor) was written to by her brother, David Steinau,1 iving in Monroe, to send her claim to the same legal firm. One of the Steinaus (Albert) was a clerk in the debtor’s store.

All of the claims held by the parties who were to be favored were cumulated in the hands of the same attorneys.

There is no pretence that the insolvency of the debtor was not known to these creditors, or their representatives. It was certainly known to the attorneys, and their action, which was that of the creditors, was influenced thereby. C. C. 1984; 2R. 38; 3rd La. Ann. 248; 6 La. Ann. 552; 4th La. Ann. 329; 8 La. Ann. 81. One of the attorneys, who testified, admits that the judgments confessed were more than enough to cover all the property seized.

It is vain for these creditors and this debtor to deny complicity and co-operation. The confessions of judgment themselves (a favor conferred upon a select few only, all represented by the same agents) demonstrate this. These confessions were all signed at the same time at the debtor’s residence. Every facility was extended by the debtor, and accepted by the creditors, to put their claims in such form as to be quickly executory against the property, proceedings were unduly expedited to this end, while the debtor stubbornly, and even bitterly, contested the suits brought by other creditors, even those who did not attach or sue to revoke. She not only fought their claims and attachments, employing several lawyers in the defence, but demanded in reconvention fifty thousand dollars damages against those who, after the stores had been closed by the seizure at the suit of the favored creditors, had the temerity to levy attachments on the same goods. ■

Not only did the debtor utter no word of complaint against the seizure made by the preferred creditors, but it appears that Jonas Meyer was active in the endeavor to thwart the other creditors. Plaintiffs herein were frustrated by him in the efforts made by their counsel to obtain sureties on the injunction bond, which, if obtained, would have stayed the sale of the goods under the executions issued on the confessed judgments pending this litigation.

The ground for the attachment of the goods by the excluded creditors, after the same had been seized at the suit of the favored creditors, was the preference shown the latter by the insolvent debtor in the confessions of judgment executed in their favor. The judge below sustained the attachments, notwithstanding the strenuous defence made against them by the debtor.

In preparation for the collapse, the debtor, a few days before the confessions of judgment were given, sold for cash the only piece of real estate she owned, and on the very day of the confessions she disposed of her stock in the Building and Loan Association of Monroe for twelve hundred and thirty- seven dollars and sixty cents. Besides this, all the cash on hand in bank and in the store disappeared just as the seizure was coming on. Yet Jonas Meyer testified he did not know the store was to be seized, and this notwithstanding he had, the day before, signed the confessions, with his wife, in authorization of her, and knew the court was in session.

In the desire and haste to include all who were intended to be favored, and exclude others, judgments were actually confessed on claims not yet due. One of the notes sued on by the Merchants and Farmers’ Bank was not due and the note itself was at the time in New York as collateral security for a loan the bank had contracted there. The president of this bank testified he did not know how the confessions were taken, or why taken. This note, held by the bank and not due, was the one P. Lowenberg, brother-in-law of the debtor, was endorser on. So, too, the note for two thousand one hundred dollars held by the Monroe National Bank (and likewise confessed on) did not mature until December 22, the very day the confessions were signed and the suits filed. Counting days of grace this note was not demandable until December 25, 1896. It thus appears to have occupied the fortunate position of having had judgment by confession entered upon it before it was actually due.

The solicitude about this note is easily accounted for by the fact that Herman Meyer, of Meyer Bros., brother of the debtor’s husband, was guarantor thereof.

It is a circumstance worthy of remark that none of the members of the firm of Meyer Bros, went upon the stand in this hotly contested and protracted litigation, noth withstanding the large interest they had in its outcome and the fact that they lived in Monroe where the case was being tried.

Meyer Bros, purchased at the sale the stock of goods in Monroe, and that in Alexandria, as well as the other property seized, including notes, accounts and other assets.

After the purchase, they conducted both businesses at the old stand. Jonas Meyer was retained as salesman at the Monroe house.

After buying the goods at a price far less than their real value, Meyer Bros, published an advertisement of the stock of merchandise of the Star Emporium for sale, in which it was stated to be a bankrupt sale of thirty thousand dollars worth of goods, purchased by them at sheriff’s sale at great sacrifice, and to be sold for cash regardless of cost. It is shown that in the months of January, February, March, April, May, June and July, 1897, their cash sales of these goods amounted to twenty thousand dollars.

On the first of August, a large remnant of the stock unsold was-, moved into Meyer Bros, store, and Jonas Meyer still continued tobesalesman there.

What the sum total was, eventually realized by Meyer Bros, from this bankrupt sale, is not shown.

Nor does it appear whether they were accountable to the other seizing creditors for their share of what was realized at the private sales, or only for such creditors’ pro rata of the sum for which they bid in the property at the sheriffs’ sales.

We do not find it necessary to pass upon any of the numerous bills of exception, found in the record.

They relate to the rulings of the court a qua admitting or refusing; evidence offered. We will say, however, that much testimony-offered by plaintiffs was excluded that should have been admitted. Averments of fraud and collusion enlarge the scope of the reception, of evidence.

The law of Louisiana does not recognize preferred ” creditors; It mercilessly reprobates all unfair preference by which 'an insolvent debtor seeks to give one creditor an advantage over another. And it declares that a debtor’s property being the common pledge of his creditors, every act, device or machination by which they are prejudiced may form the subject of the revocatory action. 0. 0. 1969... The fact that the machinery of the law and of the courts is used to effectuate the fraudulent purpose, aggravates the offending. Newman vs. Baer, 50th La. Ann. —; Prats vs. Creditors, 5 R. 288; Stone vs. Kidder, 6 La. Ann. 552; Muse vs. Yarborough, 11 L. 530; 35 La. Ann. 885.

The case at bar is almost identical in its facts with Blodgett vs. Hogan, 10 La. Ann. 18, and the priuciple there announced must, govern here. If the stock of goods and property of this debtor had been conveyed by private act, under the circumstances mentioned, to the favored creditors, the transaction would not stand a moment before the assault of the complaining creditors. Nor can it be held any more stable because sought to be done under cloak of the forms, of law.

Plaintiffs and intervenors aje entitled to the alternative remedy, ■of either having the confessions of judgment, the judgments based thereon and the executions and sales thereunder annulled, and the property, or its proceeds, applied to payment of their demands, or to judgment for their debts against the possessors of the property, or its proceeds. Stone vs. Kidder, 6 La. Ann. 552; C. C. 1977.

It is, therefore, ordered, adjudged and decreed that the judgment 'appealed from be annulled, avoided and reversed, and it is now ordered and decreed that, in so far as plaintiffs and intervenors herein are concerned, the confessions of judgment executed by Mrs. Alice Meyer in favor of the seven creditors hereinbefore named, the judgments of the court a qua based thereon, and the executions and sales thereunder of the debtor’s property, be set aside and annulled, .-and that the property sold under said executions, or its proceeds, ¡be applied to payment of the claims of the plaintiffs and intervenors 'herein, and that to this extent and for this purpose plaintiffs and intervenors do have judgment and recover of the seven’ creditors referred to, in solido, the amount of the proceeds of said property .as shown by the sheriffs’ returns on the executions aforesaid.

It is further ordered and decreed that, in the alternative, plaintiffs •and intervenors do have and recover of Meyer Bros, and the individual members of that firm, purchasers and possessors of all the .property sold under the executions aforesaid, in solido, the amounts due said plaintiffs and intervenors, respectively, by the insolvent debtor, Mrs. Alice Meyer.

It is further ordered, etc., that the costs of both courts be taxed . against defendants and appellees.

Mr. Justice Miller: T dissent on the question of jurisdiction.

On Application for Rehearing.

A re-examination of this case discovers no ground for setting •aside the judgment heretofore pronounced by the court. But we have concluded to amend in one particular the decree rendered, and, . accordingly, it is amended and reannounced so as to read as • follows:

It is, therefore, ordered, adjudged and decreed that the judgment •appealed from be annulled, avoided and reversed and it is now •ordered and decreed that, in so far as plaintiffs and intervenors .herein are concerned, the confessions of judgment executed by Mrs. Alice Meyer in favor of thé seven creditors heretofore named, the judgments of the court a qua based thereon, and the executions and sales thereunder of the debtor’s property, be set aside and annulled, and that the property sold under said executions, or its proceeds, be applied to the payment of the claims of the plaintiffs and intervenors herein, and that to this extent and for this purpose, plaintiffs and intervenors do have judgment and recover of the seven creditors referred to, the amount of the proceeds of said property as shown by the sheriff’s returns on the executions aforesaid. It is further ordered and decreed that, in the alternative, plaintiffs and intervenors do have and recover of Meyer Bros., and the individual members of that firm, purchasers and possessors of all the property sold under the executions aforesaid, in solido, the amount due said plaintiffs and intervenors, respectively, by the insolvent debtor, Mrs. Alice Meyer.

It is further ordered, etc., that the costs of both courts be taxed against defendants and appellees.

Rehearing refused.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 12,891.
    Monroe Building and Loan Association vs. Liverpool and London and Globe Insurance Company. In Re Liverpool and London and Globe Insurance Company Applying for Certiorari, or Writ of Review, to the Court of Appeals, Second Circuit, State of Louisiana.
    Tlie policy sufficiently identified the property of the mortgagee (named) as the property insured. And, in this respect, the claim that mortgagee’s right to recover was not sustained by proof, was rejected.
    On the second ground urged by relator in defence, against mortgagee’s claim— Held: That the insured continued as party to the contract after the mortgagee was made payee of the policy, and the relation between the insurer and insured remained unchanged.
    The insurer, by violating the contract, vitiated the policy.
    Failure to observe substantial conditions precedent will discharge the insurer.

      Harry H. Hall and A. A. Gunby for Petitioner.

      Hudson, Potts & Bernstein for Monroe Building and Loan Association, Respondent.

      Submitted on briefs July 16, 1898.
    Opinion handed down November 21, 1898.
   The opinion of the court was delivered by

Breaux, J.

This was an action upon a policy of fire insurance for one thousand dollars issued in the name of the owner of the property.

The property was encumbered by a mortgage in favor of the “ Monroe Building and Loan Association,” and the policy was made payable as follows: “Any loss that may be ascertained and proven to be due the assured under the contract shall be payable to Monroe Building and Loan Association as its interest may appear at the time of the fire and remainder, if any, to the assured.”

One of the written conditions upon which the policy was issued was that the assured “ shall not make any other insurance on the property hereby insured without the consent of the company ” — in case of other insurance “ this policy shall be void.” The insured obtained additional insurance from another company on property covered by the policy, issued by the Liverpool, London and Globe Insurance Company.

The property, while insured, was destroyed by fire.

The mortgagee, upon the insurance company’s refusal to pay, brought suit against it for the amount of the policy.

The mortgagee (the Monroe Building and Loan Association) in its petition averred that its mortgage was for a larger amount than the policy; that mortgagor had, in the act, bound himself to keep the property insured in its favor, or in case of its failure it authorized mortgagee to take out the insurance to be effected, and charge the premium to the mortgagor; that the policy was the property of and had been held by it since its issuance.

The insured sets forth that when the mortgage debt was created in 1888 the mortgagee obtained a policy from the insurer, and for each subsequent year (including the year the policy sued upon was issued) “plaintiff itself, in its own interest, took out a policy from the defendant insurance company, under the terms of the mortgage policies covering the risk, the premiums upon which were charged to and paid by the insured, who had no other connection with the policy.”

The averments which we have stated are substantially sustained by the record. The court, whose finding of fact we accept as true and correct until the contrary is made to appear by the weight of the testimony, sets forth in its decision: “There was some effort to show, and stress was laid upon the claim,” that Ethridge (who was the insured) first applied for this policy in 1887, and that the contract sued upon “is a renewal of that policy.” It seems that there never was a “formal written application,” and that the policy was issued upon Ethridge’s verbal request to the agent. We consider the policy as an independent, original agreement taking effect from its date without relation to “and unaffected by facts connected with prior policies.”

“While it may be a renewal of previous contracts in the sense of which the term is understood by insurance men, it is to be interpreted according to the conditions.” and circumstances existing at the time of its execution.

We do not infer that the facts as related to any particular year were different. From the first year to the last the mortgagee contends that the policies were issued to it, the mortgagee “.in its interest,” the premiums were charged to and paid by Ethridge, who “ had no other connection with the policies.”

The mo rtgagee contends: “ It is not true that the policy sued upon, No. 1692, was issued and delivered to W. M. Ethridge as defendant company alleges, but was executed and delivered to plaintiff.”

A question of proof arose.

We referred to the opinion and found that the contract of insurance was made by the owner, Ethridge, “who paid the premium,” and the loss, if any, should occur, was to be paid to plaintiff (the Monroe Building and Loan Association), who was his mortgage debtor; the policy was obtained in fulfilment of an obligation on his part to keep the property insured in his creditor’s favor, and the evidence shows that the plaintiff caused the policy to be taken.

The defences made by the insurance company against the demand “ was .that the plaintiff, mortgagee, had no right to sue on the policy; that it does not belong to the plaintiff.”

(Quotation from the decision of the Court of Appeals.)

Upon this basis, as to facts, the court pronounced judgment in favor of the mortgagee for the amount of his claim, thereby affirming the principles upon which the District Court based its judgment.

The rule is universal: a policy, conditional to be vitiated and made void, in case of additional insurance in another company without notice is vitiated and made null by a breach of the condition.

The legal propostion is not here disputed.

This question is whether it was “other insurance of the same interest.”

The mortgagee claims that it was its interest which was insured and not the interest of the owner.

The clause directing to whom the policy was to be paid in case of loss is not materially different from the usual clauses in such cases. The fact that there was no special reference in the clause to a mortgage held by the creditor is not of itself valid ground for defence.

A general creditor has no insurable interest in the property of his debtor. Insurance companies insure the interest held by creditor in the property insured. Woods on Insurance, Vol. 1, p. 688; Ross vs. Insurance Co. 27 An. 409.

' We would not be justified in assuming, that the insurance company had not insured the property with reference to the mortgage, but that it was the insurance of a mere general creditor. In was an insurance in presentí. The contract, as to the mortgage, went into effect from its date. The words of the clause: “this contract shall be payable to Monroe Building and Loan Association as its interest may appear to the time of the fire, refers to an actual interest insured at the date of the policy.” It was on that day, that the insurance company bound itself to pay any loss by fire to the property.

The first ground above urged by the relator, the Liverpool & London & Globe Insurance, is in our view not tenable.

We take up for review the second ground urged.

The loss being payable to the mortgagee, is he entitled to receive the amount of the policy?

The endorsement on the policy being: “loss payable to the mortagee ” secures to the mortgagee, while his mortgage is extant, the right of recovering any amount which may become due by the-insurance company in which the insurance was effected upon that condition.

The question arises, in the light of the stipulations which remained in the policy, is the insurer any longer a party to the contract?

In our view he still continues, as one in interest, and the stipulation that he was not to reinsure remained in force. Any failure on-his part to perform that which he bound himseif in the contract of insurance discharges the company. He, the insured, Ethridge, was; left in a situation in which it was possible for him to avoid the-contract. The fact, that the loss, if any, was made payable to the mortgagee, did not have the effect of cancelling the conditions precedent to recovery.

Reliance was placed at bar upon the case of Cannon vs. Insurance Company, 49 An. 1367, 1276.

The case is not similar in that in that ease the court held that the-mortgagee, of his own motion, had taken out insurance in name of mortgagor, or owner of the property, without the authorization of the latter, and that it was in .effect insurance by mortgagee of his-interest for his account.

In the case before us for decision the insurance was taken out by the owner in his own name, and he remained a party to the contract.

We have carefully read each of the authorities to which our attention was called by counsel for respondents. They do not, in our judgment, sustain respondent’s views.

It is therefore ordered, adjudged and decreed that the judgment rendered by the District Court in favor of the Monroe Building and-Loan Association in said case; also the judgment of the Court of Appeals, affirming the judgment of the District Court and condemning the Liverpool and London and Globe Insurance Company to pay-one thousand dollars and costs, be annulled, avoided and reversed.

It is further-ordered, adjudged and decreed that the demand of the-demand of the plaintiff be and is hereby rejected at its costs in all-courts.


text:
    No. 12,916.
    State of Louisiana ex rel. J. T. Sherburne vs. Joshua G. Baker, Judge.
    The right of trial by jury is a substantial right which is not tobe denied as to offences which had been committed at the date that the law was adopted. The provision in the Constitution of 1898 providing for the trial of criminal cases, not necessarily punishable at hard labor by the court, without a jury, is ex post facto in its application to offences committed before the Constitution, was adopted.
    QN APPLICATION for Writs of Certiorari and Prohibition.

      Chaffe & Bowers for Relator.

      John J. Finney, Assistant District Attorney, for Respondent.
    Submitted on briefs September 26, 1898.
    Opinion handed down November 21, 1898.
   The opinion of the court was delivered by

Breaux, J.

The relator was arraigned, pleaded not guilty, and elected to be tried by a jury.

Prior to his trial, the Constitution of 1898 was adopted, limiting the jurisdiction in the trial of a certain class of cases to the court alone.

When the case was called for trial, the relator urged that he was entitled to a trial by jury; that the act for which he was prosecuted was committed before the date of the adoption of the Oonstitufion.

The court decided that he had no right to such a trial, proceeded .to try the case, and found the accused guilty as charged.

He, averring that the new law wouid operate ex post facto if his -conviction remains unreversed, invoked the supervisory jurisdiction •of our court.

The Constitution of 1879, guaranteeing to the defendant the right •of trial by jury, was in force at the date the act was committed.

There is weighty argument in support of the proposition that the ■Convention had the power to change the method of trial, as relates to minor offences, of a date anterior to the constitutional article in the Constitution of 1898, by transferring all judicial power of trial to the court alone, without a jury.

It is true that this court has passed upon questions similar to this, .-upholding such power.

In State vs. Carter, 33 An. 1214, the court expressly announced "that the Legislature was competent to change judicial proceedings .regarding trial for offences committed prior to the change. In State vs. Caldwell, 50 An., ante, p. —, it was decided that the constitutional inhibition regarding the enactment of ex post facto laws.did not apply as to the question therein raised. The facts were not absolutely similar to those in the case before us for determination. The case before us is a stronger case for the accused.

There are at least two decisions, in other jurisdictions, in which the question now before us was presented, and a conclusion arrived at similar to the decision in the cited cases. McCarthy vs. State, 25 Pac. Rep. 299; In re Wright, 27 Pac. Rep. 565.

In the early days of the jurisprudence of the Supreme Court of the United States it was decided that the words ex post faeto had a technical and restricted meaning in matter of law, and that they refer only to “ crimes, pains and penalties,” and do not include questions exclusively of remedy. Calder vs. Ball, 3 Dallas, 386, 401.

Such, in substance, was the definition of the correct and judicious Story, in his Commentaries on the Constitution. He cited a number of authorities in support of his text.

A law, unless it applied to crime itself, or unless in some way it aggravated the offence, would not be ex post faeto in its effect if the foregoing definition be taken as correct and complete, and if as such it be closely followed.

But in course of time the definition of ex post faeto was somewhat broadened in its effect or scope by the Federal courts. They reeognized as prohibited, enactments when they attempted to make an act done before the passing of the law criminal which was not criminal when done, or when they sought to aggravate a crime or inflict a greater penalty, or to amend the rules of evidence that would make worse and more difficult the defence of an act of prior date.

This latter definition of the courts gave rise to argument different to that which we have heretofore characterized as of weight. It led to a different conclusion from that arrived at in the decisions cited supra. The use of juries in criminal cases from time immemorial, a system of trial, always referred to as being of the greatest importance in the administration of justice; the palladium, of liberty as it is sometimes alluded to, all tended to give to the claim of trial by jury an inviolable character as related to acts preceding any substantial change in the law.

The last utterance of the Supreme Court of the United States is contained in Thompson vs. Utah, 170 U. S., pp. 343-355.

It is a ease of recent date, to which our attention was lately invited. It was rendered only in April of this year, and was not before us when we decided the case in June last.

The accused in the last cited case was indicted for larceny, but he was tried after Utah had been admitted into the Union.

The defendant was found guilty. He moved for a new trial on the ground that the jury that tried him was composed of only eight persons, whereas, by the law in force at the time of the commission of the offence charged, the lawful number was twelve.

His application having been overruled, he excepted. He was sentenced. The judgment was affirmed by the Supreme Court of Utah.

The Supreme Court of the United States, on a writ of error, which that court had issued to the Supreme Court of Utah, said that by statutes of the Territory of Utah, in force when the offence charged was committed, a jury consisted of twelve persons, and held that twelve being the number, the State of Utah did not acquire as to offences previously committed the power to enact that the accused should be tried by a jury composed of less than twelve persons.

The court said: “It is not necessary to review the numerous cases in which the courts here determined, whether particular statutes come within the constitutional prohibition of ex post facto laws. It is sufficient, then, to say that a statute belongs to that class which by its necessary operation and its relation to the offence, or its consequences, alters the situation of the accused to his advantage,” citing several decisions in support of the text. In that view, the law, as sought here to be applied, is ex post facto.

Some of the methods of trial may be changed, even as to offences of a prior date, but the law securing to the accused the right of trial by jury can not be repealed as relates to acts which had been done at the time of the repeal. The courts of the United States concluded that the provision of the constitution of Utah for the trial of cases committed before the territory became a State could not deprive the accused of the right of trial by jury of twelve persons, the number required by the statutes of Utah while it was a territory, and at the time that the offence charged was committed.

The right guaranteed to the accused in the cited case was equally as well guaranteed to the accused in the case here. The jury were the judges of the law and the facts of the case at the date he was indicted — i. e., under the Constitution of 1879. The decisions of the Supreme Court of the United States are always entitled to consideration, especially those relating to questions here involved.

The accused in the case before us for decision had, in our view, a right to trial by jury, after the Convention had adopted the articles of the Constitution. The accused, we think, could, at the time his case was called for trial in the District Court, have been compelled to stand his trial before a jury as constituted; but not before the District Court without a jury. In other words, the law did not as to past offences, have the effect of repealing the old law.

It is therefore ordered, adjudged and decreed that the writs of certiorari and prohibition be and they are sustained to this extent: the judgment and sentence in this case are annulled and quashed as not good in law and the verdict found is set aside and the case is remanded to the District Court of the parish of Orleans to be proceeded with according to law.


author: Watkins, J.

text:
    No. 12,560.
    City of New Orleans vs. Philip Werlein.
    Property once dedicated to public use is extra commercia and inalienable by seizure and sale under execution against a municipal corporation, unless it is made affirmatively and clearly to appear that its use bad been abandoned or lost by non-user.

    r~\N APPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Samuel L. Gilmore, City Attorney (B. A. Tichenor of Counsel), for Plaintiff, Appellee.

      Edwin T. Merrick for Defendant, Appellant.
    Argued and submitted January 29, 1898.
    Opinion handed down November 21, 1898.
   The opinion of the court was delivered by

Watkins, J.

The plaintiff seeks to recover the square of ground in the city of New Orleans which is bounded by Poydras, Carroll, Baronne and Perdido streets, alleging same to be property dedicated to public use, and constituting a portion of the Place Gravier, in the ancient Faubourg St. Mary, and not susceptible of alienation, private ownership or private possession — same being extra eommereia, and exclusively under the power and dominion of the sovereign.

The defendant alleges that said property was adjudicated to Andrew C. Lewis, on the 25th of September, 1878, under an execution which was issued under a money judgment in the suit of John Klein vs. City of New Orleans, No. 7801, in the United States Circuit Court for the State of Louisiana, and that by various mesne conveyances the same was transferred to him, and upon which he founds his title and possession thereof. On these issues the case was tried and judgment pronounced in plaintiff’s favor, and the defendant has appealed.

In conjunction with his answer the defendant urged pleas of estoppel and res adjudícala, predicated upon the suit of the city, in which the marshal’s sale was enjoined in the United States Circuit Court, and the judgment thereof rejecting its demands; but same were by the Judge a quo overruled, and to his ruling the defendant’s counsel retained a bill of exceptions.

This statement of the pleadings suffices to show that it is conclusively admitted by the defendant that the city of New Orleans was possessed of a title to the property in dispute at the time of the marshal’s sale to Lewis; and hence the sole question remaining for decision is, whether or not the property was the subject of judicial alienation at that time.

The plaintiff puts its case upon its acquisition of the property as a locus publicus, and the title from Gravier dedicating same to public use, and the inalienability thereof on that account; and the contention of the defendant is that the public use of the property had been abandoned by the city many years antecedent to the seizure and sale of Klein, and was consequently the proper subject of a judicial disposition. And to that end all of the defendant’s parol proof was directed, though unsuccessfully. The averment of the plaintiff’s petition is “ that said sale by the United States’ marshal to Andrew O. Lewis, was and is absolutely null and void, and that no title or right whatever in and to said property passed by said sale to said Andrew C. Lewis, or to the defendant herein, who claims through mesne conveyances from said Andrew O. Lewis.

“ That said property is property which was dedicated to public use long prior to the date of said marshal’s sale, by Bertrand and John Gravier, and forms part of the Place Gravier in the Faubourg St. Mary, in this city; and that said property was at the date of said marshal’s sale and has ever since been, absolutely unsusceptible of alienation, of private ownership, or of private possession, and that said Werlein’s possession is illegal and in bad faith.

Petitioner further avers that she is invested by law with the administration and possessson for the public benefit of all property in this city (which is) dedicated to public use, and has the right to sue for the recovery of the possession of, and to establish the title and right of use of the public to any such property.”

The prayer of the petition conforms to the foregoing averments. Counsel for the defendant places reliance chiefly upon his plea of res adjudieata, and advances the proposition that, notwithstanding the fact of the inalienable character of the property in suit as a locus publicus, same having been actually adjudicated at marshal’s sale, it has become an accomplished and incontestible fact which can not be again controverted.

We make from counsel’s brief the following extract, viz.:

“ I am well aware of certain authorities to the effect that property dedicated to public use can not be sold under a judgment; but the court must bear in mind that this property has been already sold under a judgment, and that judgment has never been attacked to this day. ' To attack it a suit would have to be brought in the court that rendered it. It may be that the judgment was wrong, but it is nevertheless res'jadicata, unless reversed or annulled.
“This was, also, the judgment of a court of the United States having jurisdiction of the case, and is its action to be disregarded and annulled by your Honors after nearly twenty years of acquiescence? The decisions which say that the title to a locus publicus can not be divested mean that it can not be divested if the proper proceedings are instituted to prevent it.” (Oar italics.)

We do not agree with counsel in that proposition, neither with regard to its application to the facts stated with reference to his plea of res adjudieata nor the law governing it.

The facts disclosed by the record are that Klein obtained a money judgment against the city of New Orleans in the United States Circuit Oourt, and thereunder caused an execution to issue, and the property in suit to be seized; and same was subsequently sold to Andrew 0. Lewis.

The instant suit attacks the validity of that sale, but does not question the legality of the judgment under and by virtue of which the sale was made.

Admitting that the judgment is and was perfectly valid, and all proceedings thereunder perfectly formal and regular, the suit of the city declares, that the purchaser acquired no title, and none was transferred to the defendanl, for the reason that the property adjudicated was extra eommereia and inalienable, under the execution of a judgment creditor.

That notwithstanding there was a valid judgment pronounced against the .city for an ineontestible debt in favor of Klein, yet the city, as judgment debtor, had no right, title or private interest in the property which was the legitimate subject of seizure and sale •under execution.

Oonsequently, the divestiture of the title of the publie does not, in any manner, depend upon the validity of the judgment or the regularity of the sale thereunder.

Indeed, counsel has altogether misinterpreted the defendant’s plea of res adjudioata and estoppel, as same is not based upon the money judgment nor the sale thereunder. It is solely predicated upon the decree which was rendered in the injunction suit of the city which sought to restrain the sale upon ground different from those now assigned for the illegality of the sale.

The judge a quo states the ground of that injunction suit very concisely and we will reproduce same in lieu of a summary of our own, viz.:

“ 1. That said Klein had caused his judgment to be registered in the office of the Administrator of Public Accounts, agreeably to the provisions of Act No. 5 of 1870, Extra Session, and had accepted and availed himself of the provision of that act as a means of realizing upon said judgment; and that said act prohibited the issuance of a writ of fieri facias upon any judgment so registered, and that said prohibition was binding on Klein.
“2. That Klein was not the owner of the judgment, but had transferred it to Lesassier and Binder.
“ 3. That the writ issued for a much larger sum than the balance due on said judgment.”

Upon that statement it is quite evident that the city did not resist the execution on the ground that the property seized was not the legitimate subject of sale and inalienable.

Nor is that the defendant’s contention; bat that it was a defence Vhich was susceptible of having been made in that case, and not having been made, was presumably abandoned, and in consequence thereof, was necessarily covered by said injunction suit and the decree of the United States Oircuit Oourt against the city.

This, as we understand it, is the contention of defendant’s counsel; and that is an altogether different proposition from the oue bbove quoted from his brief.

And considering the plea of res adjudieata as it is presented in the pleadings, the judge a quo said:

“ It does not appear to have been suggested in the pleadings that the property seized was a locus publicus, und upou the issues as presented, the preliminary injunction was dissolved and complainant’s bill dismissed; and the property was accordingly sold by the marshal to A. O. Lewis,” etc.

And hence he held, that the demand or cause of action stated in the injunction suit was not the same as that stated in the instant suit, and the plea of res adjudieata was rejected.

But taking the contention of the defendant’s counsel as stated by him in his brief, viz.: “ That it can not be disputed that it is a principle of law universally admitted that it is not only what is set up and shown in a petition that is barred by the plea of res adjudieata, but what might have been set up and shown,” as well, and defendant’s situation is not, in our opinion, improved.

The principle contended for is founded on considerations of equity that are held to obtain between private litigants; but we do not think them equally applicable to cases wherein questions of public interest, or those which concern property vested in the public, are at issue, as in the instant case.

On this question oar learned brother of the lower court very appropriately observed:

“A different rule is applied by the courts to public corporations than that which is applied to individuals, and particularly is this true with respect to such corporations when acting as administrators or trustees of essentially public rights and public property.”

A similar statement of the law was announced by this court in Canal Company vs. City, 44 An. 396, speaking through Mr. Justice Fenner as its organ, viz.: ifc would doubtless be too late to obtain relief, but we can not permit the public interests represented by the city of New Orleans to suffer injury by such an inadvertence of counsel. Precedents justify us in extending such protection to municipal corporations with a more liberal allowance than in the case of private litigants. 1 An. 215; 3 An. 230; 4 An. 130, 352; 7 An. 495.”

“Were ordinary litigants and private interests alone concerned,

But the decision so much relied upon by defendant’s counsel does not go so far as his contention suggests, as will appear from the following extract, viz.:

“So far as the demand involved in the action is concerned the judgment has closed all controversy; its validity is no longer open to contestation, whatever might have been said or proved at the trial for or against it.
“The judgment is not only conclusive as to what was actually determined respeoting said demand, but as to every matter which might have been brought forward and determined respecting it."

Accepting this statement of the doctrine of res adjudicata same is perfectly consistent with the contention of plaintiff’s counsel and the opinion of the judge a quo, for it is to the effect, only, that the judgment pronounced is absolutely conclusive as to what was accually determined respecting the demand of the petition, and also with regard to every other matter which might have been brought forward concerning said demand.

But in the city’s injunction suit the demand related to the right of Klein to execute his judgment against the city at all, consequently everything which actually appertained to that demand, or might have been therein alleged concerning it, are absolutely concluded by the judgment which was thereon pronounced.

But it did not affect the right of property in the land which had been thereunder seized and sold.

Indeed the judgment was rendered against the city as a municipal corporation as the debtor of Klein, and Klein sought to execute it by the seizure and sale of the property as that of the city; while in point of fact the title had been vested in the public by dedication thereof to public use.

And in the pre~ent suit the city appears in the capacity of an administrator or trustee of this public use — a capacity altogether different from that in which it appeared in the injunction suit — and that fact is fatal to the pretensions of the defendant, for the reason that it is an essential to the maintenance of the plea res adjudieata that, the parties to the two suits must be not only the same, but that they shall appear in the same identical capacity.

The foregoing deductions necessarily lead to the . conclusion that-the judge a quo correctly rejected and disallowed the defendant’s, plea of res adjudieata.

The plea of estoppel.by conduct on the part of city officials in causing the property in question to be assessed and taxes thereon collected as that of property in commerce and in other similar ways-must be decided on similar principles.

Our predecessors in dealing with a similar question said, in Municipality No. 2 vs. Orleans Cotton Press, 18 La. 272, viz.:

“ Thesp allegations, if proven, would have considerable force, if the plaintiffs sued in the right of a municipality, or if they claimed anything belonging to the corporation; but they only vindicate the right of the public to loci publiai, things out of commerce and in which the corporation, represented by the plaintiffs, can have no-property. The dedication to public use being once established, can not be affected by any act of the municipal officers.”

Not only is it a fact which is inferentially admitted by the defendant, that the property in suit was dedicated to public use by Gravier, but that question was expressly decided and forever put at rest by our predecessors in Railroad Company vs. Municipality No. 2, 19 La. 62.

It is unquestionably true that, notwithstanding property has been dedicated to public use, and has thus become consecrated to the public, and thereafter extra eommereia and inalienable, same may lose that character, by abandonment or non-user; but the abandonment or non-user must be clearly shown or evidenced by acts and circumstances clearly indicative of such a purpose.

True it is, that the proof does show that certain persons sustaining the relations of tenants and usufructuaries to the city did erect and maintain upon the property in dispute an expensive building, and that the same was used for their private advantage and income; but those persons" and others who were permitted to so use the property, went into possession when it was in an untenantable condition, and raised and improved it so that its value as well as its right of occupancy became largely accelerated. But the proof shows that said buildings and improvements were destroyed by ñre, and that. the city urges no claim therefor. There is no proof of abandonment or non-user.

On reason and authority we are of opinion that the conclusions of the judge a quo are correct.

Judgment affirmed.


author: Miller, J.

text:
    No. 12,804.
    Joseph Rowe vs. Chicago Lumber and Coal Company.
    This court will not remand a case in which the party seeking the remanding, has had full opportunity to produce his testimony and has been fully heard, least of all, can this remanding be directed on fhe strength of ex parte affidavits filed in this court, charging in effect, that plaintiff and his witnesses swore falsely, and that defendants were subjected to a conspiracy to defraud them by the judgment sought and obtained
    If these affidavits can be sustained, the.defendants’ remedy is the action to annul the judgment, the result of fraudulent practices. 0. P., Art. 607 et seq.

    When the contract for the purchase of logs by the mill owner stipulates for delivery by the vendor in the defendants’ boom; that the mill owner will saw the logs in a reasonable time, and pay for them according to the mill scale, the rights of the “ logger” or vendor will be adjusted by the number of logs delivered in the boom; and not by the logs claimed to have been 3awed when that sawing is delayed by the mill owner, and the logs are not sawed for months.
    APPEAL from the Ninth Judicial District Court for the Parish of De Soto. Hall, J.

      Elam & Egan for Plaintiff and Appellee.

      Saunders & Miller and Wm. Goss (Walter Hyde Saunders of Counsel) for Defendant, Appellant.
    Argued and submitted May 17, 1898.
    Opinion handed down November 21, 1898.
   The opinion of the court was delivered by

Miller, J.

This appeal is by the defendants from the judgment for the price of logs he claims-to have delivered defendants under their contract with him.

The defendants, engaged in the business of sawing timber and preparing lumber for use, made a contract with plaintiff to purchase from him, at the rate of three dollars the thousand feet, the pine logs to be delivered at defendants’ mill, payment to be made by the mill scale or measurement. The plaintiff claims to have delivered three thousand five hundred and twelve logs under the contract, equal, he contends, to one million three hundred and thirty-three thousand four hundred and twenty-two feet, at three dollars per thousand feet, aggregating four thousand and twenty-six dollars, subject to a credit of one thousand and ninety-two dollars, and the petition claims the residue. The defendants allege in their answer that the custom understood and agreed to by the plaintiff was that he should be paid only for timber delivered at defendants’ mill after it had been received and measured, and that he had been paid for all timber so received and measured. The judgment was in favor of plaintiff for nineteen hundred and seventy-nine dollars, and answering the appeal he prays for an increase of the judgment.

■The question of the character of the contract between the parties is first in the order of investigation. The controversy is withdrawn from the operation of the legal principles that govern the contract of sale and subjected to the contract not putin writing, but is to be deduced from the copious testimony we ánd in the record. The plaintiff’s contention is his obligation was to deliver the logs in the defendants’ boom in the Sabine river, that it was to be sawed by defendants promptly, and paid for according to the scale or measurement of the mill. His own testimony is quite distinct to that effect. On both sides testimony was offered of the contracts of the mill with other parties.

The objection by plaintiff to this species of testimony, that his rights are not to be tested by the contracts of others, is unimportant in view of his offer of the same kind of testimony, and inwiew of our conclusion as to the effect of all the testimony on this point. From the defendants’ witnesses come the statements in effect that with contracts similar to that of plaintiff they were not to be paid until their timber was sawed, and some of the witnesses testify that no time of sawing was agreed upon. It is brought to our notice that the timber of the parties who thus speak on the question of time was actually sawed with reasonable promptitude, and that fact, we think, has a pertinence quite equal to the testimony of these parties. The plaintiff, in turn, has produced a number of witnesses who had log contracts with the mill. They testify with directness and without material variance that their contracts stipulated delivery by them in the defendants’ boom. With all due allowance for such expression of “sawed quick,” “sawed at once,” or “ in ten days,” it is the fair result of all the testimony, the contracts required sawing in a reasonable time, and all the witnesses concur and reiterate payment was to follow the mill scaling, and to be made according to the mill scale. The defendants have not offered their manager, to whom all the testimony points as making the plaintiff’s, contract, as well as the contracts of the other parties; but we have in the record his letter to one of the parties. In that letter there is-the statement of delivery to us at Logansport at three dollars per thousand feet, mill scale. On all this testimony it is our conclusion there were distinct stipulations in this contract. Delivery by plaintiff and the other parties in defendants’ boom; sawing of the timber in a reasonable time, and payment by defendants according to the mill scale. Delivery in the boom occurs throughout the testimony and must have its effect. We have, too, the plaintiff’s statement that in his log delivery of the previous year he had lost by the length of time his logs had remained in the boom before they were sawed and paid for. He testifies to obviate any such construction of his contract now sued on; he insisted on the agreement, as we find it in his testimony, and that testimony is before us without contradiction from the manager. In all the testimony from the witnesses produced by defendants there is the iteration — payment was-to be by the mill scale, or not until the scaling at the mill, and similar statements.

In our view, this line of testimony has limited, if any pertinence. The question presents no issue of the time of payment; nor is it disputed the mill measurement of the logs sawed was to be accepted. The question is whether the plaintiff, under his contract of delivery in the boom, prompt sawing, and payment, is to be concluded and limited in his demand by the logs claimed to have been sawed by the mill in the period protracted, as we read the record, for months after, it is incontestible, his deliveries were completed in the boom. In our opinion, due effect must be given in determining the rights-of the parties to delivery in the boom by plaintiff; prompt sawing and payment according to the mill measurement, and the judge of the lower court, in our opinion, has given a correct solution of the contract, that defendants, after suffering the logs delivered by plaintiff to remain in their boom for months, can not require him to accept their account of logs sawed as conclusive, and without reference to the number actually delivered in the boom. That actual delivery in the boom must have its influence, and to that issue we have given our careful attention.

We think it established with reasonable certainty that the plaintiff cut, placed in the water in the hands of the raftsmen, for transmission to defendant’s mill, three thousand five hundred and twelve pine logs; giving due effect to all the testimony, including that of the raftsmen, and allowing for the loss of logs by sinkage, or other causes indicated by the testimony, and recognized by the judgment of the lower court, we think it reasonably certain that the number of logs reached the defendants’ boom fixed by the judgment, and with that number defendants should be charged. We have given attention to the part of the argument that claims a larger credit to the defendants than that they have been allowed. The process adopted by the. lower court for (its conclusion on this branch of the case is, in our opinion, borne out by the record. The lower court finds that in the account closed between the parties the amount ascertained to be due the plaintiff of two hundred and nine dollars, and that in that account one thousand two hundred and fifteen of the logs delivered by the plaintiff were accounted for, or rather, credited to plaintiff. From the total logs claimed to have been delivered the sinkage is deducted, fifteen per cent., from this residue the court deducts the number of logs credited in the adjusted account, and makes defendants liable for the remainder at three dollars per thousand feet, and on the basis that three logs make one thousand feet;. Great weight is deservedly to be attached to the finding of fact of the lower court, in this case based on his appreciation of testimony of numerous witnesses taking up a very large space of the record. While this court must review questions of fact, as well as of law, and accordingly, we have given our best attention to this part of the ease, we are disposed to maintain the judgment on such an issue of fact as this record presents, unless the error is manifest. We find no such error. To the amount thus ascertained to be due plaintiff for logs, not credited to him in the adjusted accounts, the lower court adds the amount found due to him on that account and gives judgment accordingly. Our attention is called to an error of calculation made by the lower court of seventeen dollars and forty-three cents in computing the amount due for six hundred and seventy-one thousand one hundred and eighty-seven feet of timber at three dollars per one thousand feet. We think the error is evident, and plaintiff is entitled to that increase in the amount allowed him.

Our decision is based on the testimony in the record. The defendants appear to have had full opportunity for defence. We perceive no complaint that they were not afforded time to obtain the needful testimony. Numerous witnesses were produced on both sides with the result of a record of over one hundred and fifty pages pages of finely typed testimony; after all this we are asked to remand the case on the strength of affidavits filed in this court that the defendants have been the victim of a conspiracy, that the witnesses swore falsely, and that plaintiff has avowed the fraud, or more properly, the crime imputed to him by the affidavits. It is quite true the court, in a class of cases where the testimony in the record indicated an imperfect presentation, and the probability that further evidence would secure a more satisfactory determination, has remanded. In a recent State case we remanded, because, in our opinion, the State had not been allowed the fair opportunity to present its case. We can not bring this case within the exceptional circumstances on which we have hitherto remanded cases, and we do not feel authorized to deprive plaintiff of his judgment in a case of copious testimony on both sides, and with no complaint that full scope was not allowed defendants in the lower court, and to do this on the strength of ex parte affidavits filed in this court, imputing fraud to plaintiff’s witnesses. If these affiidavits can be sustained, the Code gives the appropriate remedy to annul the judgment and to that remedy we must remit the defendants.

It is therefore ordered, adjudged and decreed that the judgment of the lower court against defendants be increased by the addition of seventeen dollars and forty-three cents ($17.43), and as-thus amended the judgment is affirmed with costs.


text:
    No. 12,801.
    John Ader vs. Edward P. Foley and James A. Brennan.
    1. The constable -who -without any -writ, takes into bis possession property against the -will and protest of the owner, makes himself and his bondsmen liable in damages, nor will it make any difference that the constable acted on the strength of the note of the owner the constable supposed erroneously authorized the taking of the property.
    2- While this courtis not inclined to sanction damages for wrongful conduct out of proportion to the injury of which plaintiff complains, yet, in a suit of this character the court will, in the assessment of the damages, give an amount calculated to mark the judicial condemnation of wrongful conduct for which redress is sought.
    ON APPEAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Benjamin Bice Forman and B. B. Forman, Jr., for Plaintiff, Appellee.

      Bernard McGlosTcey for Eoley and Brennan, Defendants and Appellants.

      Benjamin Ory for Albert Eourcade, Defendant and Appellant.
    Argued and submitted November 9, 1898.
    Opinion handed down November 21, 1898.
    Rehearing refused December 19, 1898.
   The opinion of the court was delivered by

Miller, J.

The defendants appeal from the judgment condemning them to pay plaintiff five hundred dollars damages for an alleged illegal appropriation of his property.

In a suit for rent the plaintiff’s property was seized and the seizure was released on a forthcoming bond signed by one of the defendants as surety, from the judgment against him iu the magistrate’s court plaintiff appealed, and the judgment of the lower court was reversed. Before that reversal the plaintiff addressed his surety a note expressing thanks to him, and stating, in effect, that the appeal would not be prosecuted, but the property which had been seized and released on the forthcoming bond would be surrendered to settle the landlord’s claim. The surety, anxious to be released of liability on the bond, carried the note to the constable who had executed the writ of provisional seizure, but had later released the property on the forthcoming bond, and at the instance of the surety, the constable, without any writ in his hands, proceeded to plaintiff’s store and took possession of its ■ contents, cloths and the tools and implements of plaintiff's occupation, a merchant tailor. The testimony fixes the ■cost of this property at six hundred dollars. It was taken by the constable against the plaintiff’s earnest protest, and is still in possession ■of the constable.

The plaintiff’s petition sets forth the action of the surety and constable, charges malice of the defendants, that their action was wholly illegal and violent to the great injury of plaintiff in his business and reputation, and besides actual damages, claims punitory damages of the surety, the constable and his official bondsmen made ■defendants. The answer denies malice, alleges the note of the surety to plaintiff as authorizing the steps taken by the constable ■and denies the alleged injury to plaintiff.

It will be perceived that the dispossession complained of by the plaintiff was of property he supposed he would be called on to surrender to the landlord, and which the plaintiff proposed in his note to deliver for the relief of his surety. On that note the surety acted in directiug the constable to make the seizure. True, the note did not contemplate the interposition of the constable, nor any coercive action by the surety. We think, however, some allowance is to be made for the supposition on the surety’s part, that in obtaining possession of property by means of the constable’s action, it was accomplishing the surrender the plaintiff’s note announced he was ready to make. Eor the surety’s primary action, mistaken as we think it was, the plaintiff’s note must exert some mitigating influence in the judgment we are called on to give the plaintiff. But with all due allowance for the plaintiff’s note urged upon us as a justification of ■the taking of his property, we can not regard the note as tending, in any way, to excuse the dispossession of plaintiff, after his protest, both to the surety and the constable. The note was voluntary, and plaintiff was at liberty to withdraw the consent the note gave, and obviously had the right to protest against the method adopted by the surety in seeking possession of the property. The action of the ■surety and constable in taking the property, after that protest, was violence simply, without warrant of law.

We have in our examination of the case given the defendants all the benefit they can reasonably claim from the plaintiff’s note. We can not appreciate that plaintiff complaining of the unlawful acts of defendants is to be denied relief, because, to avert the wrong done him, he did not furnish another bondsman to take the place of the-defendant, his surety. It may well be he could not give a new surety, but in no view was he required to make the effort under-penalty of forfeiting his right to damages. It is claimed the constable is willing to surrender the goods. If they had been surrendered our judgment would accord due influence to the surrender, but the .constable retains possession of the property.

In our view the case is one for damages against the constable for taking possession of plaintiff’s property without any writ to authorize his action, against the surety for instigating the proceedings of the constable and against the other defendant, the bondsman, and the circumstances warrant and call for punitory as well as actual damages.

On the question of damages to be allowed the plaintiff, the court has had some difficulty, incident to this class of cases in adjusting the amount. In connection with the alleged injury to plaintiff’s business and credit we must give due consideration to his condition of financial embarrassment resulting, as we gather from the record in his cession to his creditors. We do not feel authorized to allow, as part of the damages, the fee of the attorney, who brings suit to obtain redress for plaintiff’s injuries caused by the wrongful conduct of defendants. We are not inclined to give damages out of proportion to the actual injury of plaintiff, and beyond the amount appropriate to mark the judicial condemnation of wrongful conduct, the basis of the suit. Under all the circumstances, we think it proper to award the plaintiff six hundred dollars with the right reserved to defendants to the credit for the present value of plaintiff’s property taken by the constable, thus placing on defendants the depreciation in value of the property, since the plaintiff was dispossessed.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be amended so as to give the plaintiff six hundred dollars, instead of five hundred, this amount six hundred dollars ($600) to be credited with the present value of piaintiff’s property wrongfully seized by the constable, provided the property be surrendered by him when this judgment becomes final, the value to be ascertained by an appraisement to be made under the direction of the lower court and at defendants’ costs, and as thus amended, the judgment of the lower court is affirmed, defendants to pay all costs.