text:
    No. 12,339.
    Philias Gathe vs. M. L. Broussard and Robert Martin and Sebastian Hiriart and James L. Barker.
    1. When counsel fees are claimed and when testimony has been taken upon that subject, it is the duty of the court to bring to bear its knowledge of the value of the services of counsel from an examination of the record in which they were rendered; but it should not, when no evidence at all has been taken, attempt to fix such value, even by consent and request of litigants. State ex rel. Abraham vs. Judges, 43 An. 889.
    2. On appeal, the appellees neither appealing nor asking any change in the judgment appealed from, can obtain no change or reversal of the judgment of the lower court. Talle vs. Monasterio, 48 An. '1232.
    3. Where a person in possession of property under a title by .purchase is made ' defendant in a petitory action, and judgment is rendered in favor of plaintiff, decreeing him the ownership of the same, the fact that defendant’s vendor was not made by him a party to the suit, may leave the question of title open incidentally to inquiry in determining the personal responsibility of the latter in warranty (0. O. 2517-2518), but it is closed by the judgment as between the vendors and the plaintiff in the petitory action. It can not be re-opened by bringing the latter into the suit between the vendee and his vendor, touching the responsibility of the latter on his warranty.
    4. When a question is before a court only incidentally in connection with the determination of a main issue before it, and the issue with which it was connected has been finally disposed of, the incidental question .disappears from the case as a matter for adjudication.
    APPEAL from the Nineteenth Judicial District Court for thé Parish of St. Martin. Voorhies, J.

      James E. Mouton for Martin & Broussard, Defendants, Appellees.

      Hébert & Hébert for Barker & Hiriart, Defendants, Appellants.
    Argued and submitted January 6, 1897.
    Opinion handed down January 18, 1897.
    Plaintiff alleged that on April 17, 1893, he purchased from the defendants, Broussard and Martin, certain property described in his petition (declared in the act of sale to be in the parish of St. Martin) for the price of four hundred dollars, of which two hundred dollars were paid in cash, and the balance was represented by the purchaser’s note secured by mortgage and vendor’s privilege, due February 16, 1894, with eight per cent, interest per annum from maturity; that petitioner immediately took possession of the property, and made thereon, for the purposes of working the same, expenses and investments to the amount of seven hundred and ten dollars, consisting mainly in employing labor for the under-cutting, the deadening and felling of cypress trees, the trailing and drafting thereof for market; the purchase of goods and necessary supplies and provisions for the laborers by him employed; that while in the possession of said land as owner he caused to be cut thereon and floated and made ready for market some two hundred and six trees, worth at least the sum of seven hundred and fifty dollars, when on or about the 1st September, 1893, the same were sequestered at the suit of Sebastian Hiriart and James L. Barker, claiming them as having been cut from lands belonging to them, averred to be situated in the parish of Iberville, being the identical lands purchased by petitioner from Martin and Broussard; that in said suit the said trees were decreed to belong to said Hiriart and Barker. Petitioner averred that his vendors, Broussard and Martin, were bound to him in warranty as to the validity and legality of the title to the land so sold by them to him; that if they were not at the time the owners of the property they could not validly sell or tranfer them to him, and that said sale to him was null and void, or, at least, should be annulled, avoided and canceled, and he should not only be released from all liability arising from his purchase, but reimbursed that portion of the price which he had paid cash; that his vendors were aware when they sold to him of the defects in their title and knew that they were selling lands not in the parish of St. Martin as they pretended, and that, therefore' they were liable in solido for all damages caused by their wrongful act, consisting of the amount spent as aforesaid on the faith of said title in working said property, say the sum of seven hundred and fifty dollars, the absolute loss of petitioner’s time during the years 1893 and 1894, say six hundred dollars ($600), the costs of suit incurred in the suit of Hiriart and Barker and actually paid by him, and the fees of the attorneys employed by him in said suit, say two hundred dollars, besides additional loss of time, expenses, vexation and fees of attorney in the institution of the suit then brought, say two hundred dollars. They prayed for citation to Martin and Broussard; that petitioner have judgment against them, declaring the sale made by them to him an absolute nullity, or in the alternative, annulling, avoiding and setting aside the same and relieving petitioner from all liability resulting therefrom, particularly the payment of the note by him furnished for the credit portion of the price of purchase, and that they be condemned to pay to him the sum of pineteen hundred and ten dollars, it being the aggregate of amounts as above set forth.

      Defendants denied that their title to the property sold was bad — on the contrary, they averred it was well and truly theirs; that they purchased the property on the 18th of July, 1892, at a sale made by the sheriff of the parish of St. Martin, ex-offioio tax collector, for the collection of the unpaid taxes thereon due, and which were legally assessed thereon for the year 1891, and for costs after due publication and prescribed notices and delays. That the assessment of said taxes thereon by the parish assessor of St. Martin in the name of James D. Denegre was legal and in conformity with existing laws. They averred said property to be in the parish of St. Martin and that it continued to be assessed in that parish. They averred that the suit against the plaintiff by Hiriart and Barker was collusive between the parties thereto and intended to throw a cloud upon the ownership of Martin & Broussard of the property and to illegally impede them in the enforcement of their rights. That Hiriart and Barker had thereby slandered defendants’ title and damaged them to the sum of five hundred dollars. They recognized their legal obligation to defend the title they conveyed to the plaintiff and averred that in order to do so the claims and pretensions of Hiriart and Barker should be passed upon contradictorily with defendants. They prayed that they be made parties to the suit and that there be finally judgment rendered, decreeing that the property was situated in the parish of St. Martin; the assessments thereof in that parish were legal and correct; that the claims and pretensions of Hiriart and Barker were unfounded; that defendants, Martin and Broussard, were owners of the land in litigation, and that Hiriart and Barker be condemned to pay them five hundred dollars as special, actual damage. Hiriart and Barker having been cited, appeared and excepted that defendants, Martin and Broussard, were not in possession of the property and could not maintain a jactitation suit against them; that they could not join a jactitation suit with a petitory action; that they could not institute a suit for damages against them, as they were residents of the parish of Iberville and the court for St. Martin parish was without jurisdiction. Under benefit of their exceptions they denied specially that the land in question was situated in the parish of St. Martin or assessed therein, prior to 1891. They averred that the assessment of the property made in that parish in 1891 was illegal; they denied that James D. Denegre, in whose name the property was then and there assessed, ever had a recorded title in the parish of St. Martin. They averred that at the time of said assessment James D. Denégre had been dead for many years; that neither his administrator, heirs or assigns were notified of said assessment; that the advertisements and sale were illegal, tortious, erroneous and fraudulent and no valid tax sales of said lands could be made thereunder, and the pretended tax title was null and void. They specially denied that Martin and Broussard, or the plaintiff their vendee, ever sought to have their pretended title confirmed and approved, or were ever put in possession under the law by the sheriff, by a judgment of any court of competent jurisdiction ; that the price paid by the plaintiff for the said lands was much less than the actual value of the lands to the knowledge of all parties; that they are and were mere trespassers on those lands; that the-lands belonged to themselves (Hiriart and Barker), Barker having bought them from the heirs of James D. Denégre by act of record in the parish of Iberville; that Hiriart purchased an interest from defendant; that they held the patents for these lands issued to James-D. Denégre; that they had paid all the taxes on the said property since the date of their purchase, and especially the taxes of the year 1891, for which the said lands were sold in the parish of St. Martin; that the adjudication, therefore, to the State of Louisiana was null and void, and no valid tax sale could be made in 1892. Assuming the position of plaintiffs in reconvention, Hiriart and Barker averred that the effect of the said illegal sale and acts of Martin and Brous - sard was to throw a cloud on their title; that the lands were all valuable timber property; that their title had been slandered, and they had been put to heavy expenses by the acts of Martin and Broussard, especially the pending unjust suit; that their property had been trespassed upon and depredations committed thereon; that they were entitled to special, actual and vindictive damages against Broussard and Martin in solido for their acts, including expenses and attorneys’ fees in the pending suit in the sum of twelve hundred dollars. They prayed that the suit of Martin and Broussard against them be dismissed; that the lands be decreed to be situated in the paiish of St. Martin; that they have judgment in reconvention against Martin and Broussard in solido for the sum of twelve hundred dollars, with legal interest from the date of judgment. They subsequently averred that the property in controversy was worth one thousand dollars; that they were the owners of the same, and they prayed to be so decreed

      The court rendered judgment in favor of the plaintiff Gathe against Martin and Broussard, annulling their sale to him of the land described in his petition, canceling the note which he had given in representation of the credit portion of the price of sale, and condemning them to pay him two hundred dollars, the amount which he had. paid to them cash at the passing of the act of sale. The court rendered judgment in favor of Barker and Hiriart and against Broussard and Martin, recognizing and maintaining their title to the property involved in the litigation, and quieting them in their possession of the same, and rendering judgment further in their favor, annulling the title of Broussard and Martin to said land. The court further decreed that all claims for damages be rejected.
    Broussard and Martin obtained an appeal, which they did not perfect ; Hiriart and Barker have appealed and given bond.
   The opinion of the court was delivered by

Nicholls, C. J.

Broussard and Martin are before this court simply as appellees in the matter of the appeal taken by Hiriart and Barker, They have filed no answer and asked no change in the judgment against them in favor of the appellants. The only issue therefore before the court is whether the judgment of the District Court rejecting Hiriart and Barker's demand for damages against Broussard and Martin be correct or not. (See the case of Talle vs. Monasterio, 48 An. 1233.)

Appellants ask that we pass upon the question whether the prop-’ erty involved in this suit be situated in the parish of St. Martin or in the parish of Iberville, but that question was not a direct or substantive issue in the case; it was only incidentally before the lower court in connection with the issue before it, which was as to whether the title to Broussard and Martin, under a tax sale in St. Martin parish in enforcement of a tax assessed there in the name of James D. Denegre, was legal or not. When the issue with which it was connected was disposed of the incidental question disappeared from the case. There are no rights of the parties dependent upon an adjudication upon it and we scarcely think its consideration would have been necessary, even had the legality of the tax sale itself been brought before us for decision. An examination of the record in this case discloses nothing which, in our opinion, calls for a reversal of the judgment of the District Court upon the question of damages as being justly demandable by Hiriart and Barker from Broussard and Martin. Broussard and Martin bought the property in litigation at public auction at a tax sale. They subsequently sold it to Gathe, the plaintiff in this suit. The latter took possession under his purchase and through his employees, deadened and cut down a considerable quantity of timber upon the land. When so engaged Hiriart and Barker brought an action against him claiming ownership of the land, as well as that of the timber which had been cut. The pleadings filed by them in that suit are copied in this record, but those of the defendant Gathe have not been produced. The judgment in the case was in favor of Hiriart and Barker against Gathe, decreeing the land in question, and also the timber which had been cut, to belong to them. The present suit followed. Broussard and Martin’s whole connection with the property seems to have consisted in their having purchased it at tax sale and subsequently sold it to Gathe, and in their having brought Hiriart and Barker into the present suit as parties. They should not have been called into the suit. Though the question of title to the property was, as between Gathe and his vendors, left open incidentally to inquiry in determining the personal responsibility of the latter in warranty, for the reason that they had not been notified by him of the suit brought to evict him (C. C. 2517, 2518), the issue as to the ownership of the land had been definitely disposed of by the judgment in the action between Gathe and Hiriart and Barker. Brous - sard and Martin could not reopen it in the present suit. Hiriart and Barker should have insisted at once that the matter had, so far as they were concerned, been closed by the judgment in their favor, and declined in the premises any further investigation into their rights. We think, however, that Broussard and Martin acted in perfect good faith in making them parties, under the impression that not having been direct parties to the suit in which the judgment had been rendered, the question of the title was still at large open to inquiry by themselves, contradictorily with the plaintiffs in the first action. We do not think they are chargeable in favor of Hiriart and Barker with attorney’s fees. Even if they were, the record would not have furnished us evidence upon which we could fix the amount of such fees. It is true that when testimony has been taken upon that subject, courts are not only authorized, but it is their duty to bring to bear their knowledge of the value of the services of counsel from an examination of the record in which they were rendered, but they will not and should not, where no evidence at all has been taken, attempt to fix such value, even by consent and request of litigants. State ex rel. Abraham vs. Judges, 45 An. 889.

Finding no error in the judgment appealed from, it is hereby affirmed.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 12,397.
    State of Louisiana vs. S. M. Taylor et al.

      Motion to Dismiss. — Although the error complained of is one more properly within the supervisory jurisdiction of this court, but as the ruling of the trial judge, if error, finally, in effect decides the cause against the State, the court exercised jurisdiction on appeal.

      On the Merits. — Where it appears that the person injured is not the person named in the indictment the variance is fatal to the indictment.
    APPEAL from the Fourth Judicial District Oourt for the Parish of Caldwell. Machen, J.

      M. J. Cunningham, Attorney General, and C. P. Thornhill, District Attorney, for Plaintiff, Appellant.

      S. H. Gilbert for Defendant, Appellee.
    Submitted on briefs January 23, 1897.
    Opinion handed down February 1, 1897.
   The opinion of the court was delivered by

Breaux, J.

The State is the appellant in this case from the ruling of the trial judge refusing to permit the prosecuting officer to amend the indictment by changing the surname of the one injured from Leo to Willis (McDonald). The motion to amend was filed, tried and decided two days prior to the day fixed for trial of the cause.

As to the facts, the District Judge states as part of the bill of exception, that the defendants went into the field of Willis McDonaid, where lie and his son Leo McDonald were at work, and that in the presence of the latter and others they shot Willis McDonald.

That the amendment asked for sought to substitute Willis McDonald, upon whom the offence was committed, to Leo McDonald, upon whom no offence was committed; that the amendment was one of substance and not of form.

On the part of the prosecution the reverse was urged; that it was an amendment in matter of form and not of substance.

The defendant in this court filed a motion to dismiss the appeal on the ground that the appeal was taken from an interlocutory decree before the trial of the cause.

In the alternative, should the court take cognizance of the appeal the defendant avers that the motion to amend filed in the court below was a motion changing completely the identity of the one alleged to have been injured.

On Motion to Dismiss.

An appeal is made to this court to review the ruling of the lower court made on a preliminary question before trial, sentence and judgment.

Although in our view the better practice is to bring up questions of error in criminal cases, prior to sentence and judgment of the court, under our supervisory jurisdiction, yet when the ruling, if erroneous, would illegally put an end to the prosecution, the court may entertain jurisdiction on appeal.

Motion to Amend the Indictment.

The facts sustain the ruling. The purpose was to substitute another person to the one it was charged, had been injured, and not to correct a name or surname for the purpose of more complete identification. The amendment sought was one of substance and not exclusively one of form. Where it appears that the person injured is not the person named in the indictment, the variance can not be amended. Wharton, par. 258, Vol. 1, 7th Ed.

The appeal is denied; on the merits the ruling of the lower court is sustained.

The judgment of the District Court is affirmed.


text:
    No. 12,366.
    Flower, King & Putnam vs. J. R. Myrick. Interventions of Miss Olive Ruth Myrick and Ben Myrick.

      JVo Collation was Due. — Plaintiffs sought to foreclose their mortgage, via ordinaria.

    The intervenors claimed that they owned the property mortgaged by inheritance from their mother.
    At their majority they accepted the succession.
    The tutor of intervenors administered the property and received rents and other revenues for the minors, for which he failed to account.
    The intervenor was without authority to require collation of amounts not donated by the mother (the mother at her death was not even a creditor of the coheirs).
    The indebtedness of the co-heir, of whom collation was demanded, was to the tutor of the minor, and not to the succession of the mother.
    Conceding that the co-heir was indebted to the succession — a debt incurred since the succession was opened — the portion of each heir in the realty was not subject to reduction (as against a third person) in order to equalize the shares. The co-heir had the right to mortgage his portion to the plaintiff free from any claim for collation.

      Amendment on Appeal. — The answer to the appeal was not filed in time. Moreover, the defendant was not a party to the-appeal, and therefore appellee’s prayer to amend the judgment was not granted.
    APPEAL from the Sixth Judicial District Court for the Parish of Richland. Ellis, J.

      H. P. Wells for Plaintiffs, Appellees.

      J. W. Willis for Intervenors, Appellants.
    Argued and submitted January 22, 1897.
    Opinion handed down February 1, 1897.
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs brought this suit, via ordinaria, against the defendant to recover an amount of eighteen hundred dollars secured by mortgage, and an additional amount unsecured by mortgage.

Miss Olive Ruth Myrick filed an intervention alleging that plaintiffs’ mortgage is a nullity for the reason that the mortgagor was not the owner of the property; that it was held at the time in indivisión by her and her co-heir, the mortgagor; that it had not been under the administration of her tutor, who never made any settlement of his tutorship, or rendered any account; that he, the tutor, owes her in collation more than the value of the half of the property mortgaged and owned by her and her co-heir in indivisión, as just stated.

She averred that her claim is due by the succession and that it should be paid in preference to any debt oí her co-heir, J. R. My-rick, the mortgagor, who has fraudulently mortgaged property in which he only had an eventual or contingent interest, and not an absolute right, and that this was known to plaintiff.

She also averred that there are other claims than her own, which also have a preference on the succession property. She asks that the place mortgaged be sold to effect a partition and liquidation of the succession between her and her co-heir, the mortgagor, and that he be condemned to collate whatever amount he may have received in excess of his share, and that after settlement of all claims, including the collation which she claims, and after proper deduction from the active mass, that the residuum be divided equally between her and her co-heir; that plaintiffs’ mortgage be restricted to the half of the residuum which may, after a full settlement of the succession, fall to her co-heir, the defendant. She alleges, also, that her tutor died insolvent.

Ben Myrick also intervened and reiterated the grounds upon which Olive Ruth Myrick based her intervention, and further claimed a large amount due him by the succession of Martha E. Myrick for the support of the minor Olive Ruth Myrick, which the tutor had failed to provide, although the revenues of the minor received by him were ample to defray all expenses for her support and education.

The plaintiffs, in their answer to the petitions of intervenors, pleaded the general denial, and specially pleaded that Miss Olive Ruth Myrick had accepted the succession of her mother, after her majority — that any claim due her by the succession was in consequence extinguished by confusion. They pleaded the prescription of three years.

It is admitted that at the date of the death of Mrs. Martha E. Myrick, mother of Miss Olive Ruth Myrick, she owed no debts. We are informed that E. Myrick, tutor, collected rents and other revenues, which he diverted from the credits of the minors,' and expended in his own business ventures, and that they were finally squandered and lost. That these revenues from the year 1876 amounted to about eight hundred dollars per annum; that the defendant, J. R. Myrick, received board and clothing valued at one hundred and twenty dollars per annum, while the other minor, the intervenor, did not receive anything. Her support and education were paid by her under-tutor.

It appears that all the debts were incurred after the death of Mrs. Myrick, and during the time that the tutor had the administration of the property.

The judgment of the District Court recognized plaintiffs’ claim against J. R. Myrick^ and the mortgage held by them was decreed executory as to the property described in their petition.

The demand of the intervenor for the settlement of the succession of her mother, Mrs. M. E. Myrick, and for collation by her coheir of such sums as he may have received in excess of his share of the rents and revenues, wasrejected, as to plaintiffs. The intervention of Ben Myrick was sustained against the interest of Miss Olive Ruth Myrick on the proceeds of the sale of the place mortgaged, to the amount of his claim.

The place mortgaged was decreed to be sold to effect a partition, and it was ordered that plaintiffs be paid out of the undivided half of the proceeds, and the claim of intervenor, Ben Myrick, out of the other half, and the residuum, if any, to be equally divided between the two owners — the costs to be paid by preference.

In this court, during the argument on appeal (after counsel for the intervenor had closed his argument), the appellee offered to file his answer to the appeal, in which he prayed for an amendment of the judgment. Oounsel for appellant objected to the filing as too late.

It is true, as alleged, that Miss Myrick, intervenor, and her brother, the defendant, at their majority, accepted the succession of their mother, who died in 1876. A few days after her death her brother, Ed. Myrick, qualified as tutor of her minor children; Ben Myrick, an uncle, who is an intervenor here, qualified as their under-tutor.

It is insisted by Miss Myrick that the succession of Mrs. M. E. Myrick, her mother, was the donor;” that J. R. Myrick secured some advantage from the rents and other revenues of the succession property, which he is bound to collate.

The mere definition of collation of the Oivil Code, we think, is a complete answer to this proposition.

The children or grandchildren must collate whatthey have received from their fathers, mothers or grandparents. O. O. 1228. In the case before us the children had not received any donation for which they were accountable, and owed no debts to their mother. As heirs they could not, therefore, be called upon to collate anything to the mass of the succession as left to them by their mother.

We think this provision of the Code meets the proposition of intervenors, and that, as a mere matter of collation under the articles of the Code relative to that subject, the co-heir could not be called upon to collate.

But the intervenors urge that the law contemplates perfect equality among co-heirs, and that, in consequence, each should be held bound to return to the succession sufficient of the amounts that he has received from the succession to equalize the shares.

In the first place we think it evident that the funds having been misapplied by the tutor, while the property was under his administration, the tutor thereby became indebted, and not the succession from which the funds were realized. In short, they were the debts of the tutor and not of the succession. If the facts be as we think they are, this completely solves the question, for we are certain no one will contend that the succession is bound for amounts received by the tutor for account of his ward. If we should concede that it is a debt of the co-heir incurred since the death of his mother and due by him to the succession, his debt would only be, at most, an ordinary indebtedess, one entirely unsecured as to the creditor by m ortgage or privilege of any kind.

The co-heir who is an ordinary creditor of his co-heir has no real right on the property of the succession; he can only exercise a personal action against his debtor; he can not, by reason of his claim, have himself decreed the owner of a larger portion of the immovable property in the partition. Fuzier-Herman, Yol. 2, p. 187, No. 34.

The other intervenor, Ben Myrick, is also without a locus standi in the case.

He was not a creditor of the succession, but of the tutor, for the support, maintenance and education of the minor. As an under-tutor he is not in a position to claim anything from the succession from which the tutor has collected amounts for which he should have been compelled to account to his ward.

The failure of the appellee to timely file his answer gave rise to the last question before us for our determination.

The offer to file the answer at the time it was tendered to be filed is as if no answer had been offered.

We are authorized to amend judgments at the instance of the appellee only upon answers filed within the time prescribed.

Moreover, the defendant is not a party to the appeal. It is not possible to amend a judgment against a defendant (who has not appealed and who is not made a party). The controversy on appeal was between the plaintiffs and intervenors. Barrett vs. Donovan, 17 An. 182.

The judgment is affirmed.

Mr. Justice Miller recused.


author: Watkins, J.

text:
    No. 12,363.
    Whited & Wheeless, Limited, vs. W. H. Bledsoe, Assessor, et al.
    The readiness for immediate use of an article of wood which is manufactured has heen uniformly held the test of constitutional exemption from taxation.
    ^PPEAL from the Second Judicial District Court for the Parish of' Bossier. Watkins, J.

      Joannes Smith and Leonard & Randolph for Plaintiffs, Appellants.

      M. J. Cunningham, Attorney General, and A. J. Murff, District Attorney, for Defendants, Appellees.
    Argued and submitted January 20, 1897.
    Opinion handed down February 1, 1897.
   The opinion of the court was delivered by

Watkins, J.

The plaintiff is a limited corporation engaged in the operation of a planing mill, and claims that the plant and property are exempt from taxation under the provisions of the two hundred and seventh article of the Oonstitution and the amendment thereof, on the ground that it is engaged in the manufacture of “articles of wood,” and from a judgment rejecting its demand the corporation has appealed.

The averment of the plaintiff’s petition is, that said planing mill and machinery was assessed at three thousand dollars for the year 1896, and that the assessment is illegal and void, because of the aforesaid exemption. That said planing mill has been and is now engaged in the manufacture and “ production of dressed lumber, planed, tongued and grooved, planed weather-boarding dressed and ready for general use, and mouldings (of different kinds). That same are manufactured by said machine out of lumber and are complete in themselves, ready for immediate and general use without further manipulation or work on them.”

The assessor and board of reviewers, in their answer, deny “ that the machinery asked to be exempt is used or employed in the manufacture of -articles of wood complete in themselves,” but they, on the contrary, aver tflat it simply dresse and tongues and grooves rough plank as same is turned out from the saw-mill.

That, consequently, the plaintiff’s exemption should be denied.

The following is the substance of the admissions agreed to by counsel, viz.:

1. That more than five'hands are employed in operating the planing mill and machinery.
2. That the mill and machinery are engaged in dressing rough lumber into plain and tongued and grooved weather-boarding, flooring and ceiling; and also in making mouldings, door and window casing, base boards and wainscoting.
3. That all articles of wood are made from rough lumber, and that this lumber is sawed in lengths ranging from eight feet up to the multiples of two feet.
4. That some are cut in special lengths on special request.

The witnesses at the trial say, generally, that while the articles prepared are ready for immediate use, that the window-casing and door-casing are not cut into special lengths.required for doors and windows when they leave the mill; but same have to be sawed or cut into proper lengths by the carpenter and builder,.and that this is true of all the lumber which the plaintiff manufactures.

Further, that after same is thus cut into proper lengths it has to be put together by (a) carpenter, and used in the construction of buildings. One of the witnesses of the defendant — an experienced carpenter — says:

“ Ordinarily, a piece of flooring, ceiling, moulding, etc., as turned out of the mill, has, of course, to be cut for use. * * * One is as complete for the purposes for which it is intended as the other. Both have to be cut into proper lengths, but never (to) change the form. A piece of ceiling turned out from the planer, without being attached and worked into other lumber, would not be an article complete within itself.”

Again: “Ceiling. flooring, and siding, where it does not have to be cut to get the proper length, have to have their ends (sawed off) to be squared, to make a neat joint.”

The foregoing is a fair synopsis of all the testimony; and, thereupon, the question for decision is: Is plaintiff’s property engaged in the manufacture of articles of wood in the sense of the Constitution,' entitling it to an exemption from taxation?

What are the articles of wood that plaintiff manufactures?. Its petition enumerates lumber which is planed, dressed and tongued and grooved, such as weather-boarding and moulding of different kinds. The process is that of transforming rough sawed lumber into weatherboarding, flooring and ceiling. But no definite fixed shape or dimensions are given to the dressed or planed lumber. When turned out of the planing mill it is not in a condition for immediate use without further manipulation or work thereon; but it is necessary for same to be cut into special lengths to suit a given purpose or use and afterward put together by the carpenter or builder.

Taking up the adjudicated cases and examining them, we find that the readiness for immediate use has been, uniformly, made the test of exemption. In Jones vs. Raines, 35 An. 998, this court interpreted the words “ articles of wood ” to mean “such as furniture or other like articles;” or, in other words, “ that the articles of wood contemplated by the Constitution were articles which, like furniture, were made from timber, either sawed or cut.”

In Martin vs. New Orleans, 38 An. 397, the exemption claimed was that of a saw-mill engaged in cutting planks from timber prepared for the purpose, and afterward converting it “ into articles of wood, such as doors, sash and blinds, boxes, laths, etc., necessary for the constructions of buildings, and put in shape and style ready for immediate use.”

And citing the authorities and applying them to that case the court said:

“It is manifest that the property of whatever nature which is used in the saw-mill business proper — that is, in the manufacture of raw material, namely: of lumber not ready for use as are furniture and other articles of wood, is not exempt from taxation.
“ The case is different, however, as to the property which is used for the manufacture of articles of wood, ready for use by the consumer.”

In that case the court considered that sashes, doors and blinds were such articles of wood as were contemplated in the Constitution and held them to be exempt from taxation.

In Carre vs. City, 41 An. 996, the court cited the foregoing authorities and said:

“The articles of wood mentioned in the article of the Constitution are, therefore, those which, like furniture, are intended for separate use and are ready for use by the purchaser without further manipulation or labor on them, namely, which are complete in themselves.”

And, in emphasizing that statement, they said:

“It is evident that the cabins and planks manufactured by the-plaintiff are not articles of wood within legal intendment.”

In Lumber Co. vs. Sheriff, 45 An. 456, the proposition was again, emphatically announced thus, viz.:

“The testimony shows that the corporation makes shingles, laths, bridge material, fence posts, railroad ties, wood products ready for use as they come from the mill without any further manipulation. They also make the parts of common plantation cabins, the sills, joists, studding and rafters sawed to the specified lengths, and can be used in the construction of cabins without further manipulation.”

And, finally, in Brooklyn Cooperage Co. vs. City, 47 An. 1314, it was held that “ the importer of staves, already bent so as to form a barrel, of barrel heads ready for insertion and hoops to be driven on, is not to be deemed a manufacturer of a barrel, merely because he substituted machinery for the usual hand labor of setting up staves in barrel shape,” etc.

And the court held that machinery thus employed was. not exempt, from taxation.

Applying the principles announced in the decisions cited to the facts of the instant case our conclusion is that the property and machinery of the plaintiff are not engaged in the manufacture of articles of wood in the sense of the Oonstitution and are consequently not exempt from taxation.

Judgment affirmed.

Breaux, J., recuses himself.


text:
    No. 12,362.
    The State of Louisiana vs. Monroe Evans.
    A verdict of “ guilty of breaking” does not respond to tire terms and essential ingredients of any statute of this State denouncing burglary as a crime.
    A PPEAL from the Tenth Judicial District Oourt for the Parish of Rapides. Hunter, J.

      M. J. Cunningham,, Attorney General, and Phanor Breazeale, District Attorney, for Plaintiff, Appellee.

      Julius F. Ariail for Defendant, Appellant.
    Submitted on briefs January 23, 1897.
    Opinion handed down February 1, 1897.
   The opinion of the court was delivered by

Watkins, J.

The defendant, having been indicted for the crime of burglary of a dwelling house in the night-time and convicted of breaking, and sentenced to three years’ imprisonment in the State penitentiary at hard labor, prosecutes this appeal, relying on several bills of exceptions relating to the proceedings incident to the trial, a motion for a new trial and one in arrest of judgment.

The principal question, and one which is covered by two bills of exception — one of which relates to an alleged improper instruction to the jury, and the other to the declination of the trial judge to sustain a motion in arrest of judgment — is grounded upon the verdict of the jury, which is as follows, viz.: “ We the jury find the prisoner guilty of breaking.” (Signed) “P. S. Jarreau, foreman.”

The record shows that after the jury had been charged and had retired to their chamber for deliberation upon their verdict, the judge, upon his own motion, sent for them and gave them an additional instruction to the effect that if the facts justified it, they could find as a verdict “ guilty of breaking;” and that the defendant’s counsel reserved a bill of exceptions: 1st, to the act of the judge in thus recalling the jury; and, 2d, to the instructions he gave them. It further shows that after the rendition of the verdict defendant’s counsel moved to arrest the judgment of the court upon the ground that same “is not responsive to the charge contained in the indictment and is absolutely null and void in that there is no crime or offence known to the law such as breaking in the nighttime.’ ”

It further shows that the grounds of exception are fully'set forth in the bill of exceptions which defendant’s counsel presented to the court, as follows, viz.:

“ To which ruling and judgment of the court, defendant * * * excepted, for the reason that the evidence on the trial of this case showed that there was no entrance by the accused * * * into the dwelling house designated in the indictment, either before or after the alleged breaking; which breaking, if any, was committed in the night-time, and reserved this his bill of exception,” etc.

And it finally shows that the trial judge made the following assignment of reasons for the ruling, namely:

“ Whether there was any entrance or not was a matter of fact passed upon by the jury. I thought the verdict correct, and for that reason overruled the motion.”

In effect the trial judge held that the verdict was well-grounded in law.

The indictment charges that the defendant “ did wilfully, maliciously, feloniously and burglariously, in the night-time of the day aforesaid without being armed with a dangerous weapon, break and enter the dwelling house of Mrs. S. A. Dawson with the intent to commit murder, and steal and and rob,” etc. (Italics ours.)

Comparing the phraseology of the indictment with that of Revised Statutes, Sec. 850, under which the Attorney General says the indictment was found, we find the following to be the wording of the latter, viz.:

“ Whoever, with intent to kill, rob, steal, commit rape, or any other crime, shall in the night-time break and enter; or having, with such intent, entered in the night-time, break a dwelling house, any person being lawfully therein, and such offender being at the time of such breaking or entering armed with a dangerous weapon, or arming himself in such house with a dangerous weapon, or committing an assault upon any j person lawfully being in such house * * * on conviction shall suffer the punishment of death.”

That of Sec. 851 is identical with that of 850, except that it says “without being armed with a dangerous weopon, or without arming himself in such house with a dangerous weapon, and without committing an assault upon any person lawfully being in such house;” and the maximum punishment therefor is imprisonment at hard labor for fourteen years.

That of Sec. 852 is, likewise, identical with that of the latter, except that it is restricted to the breaking and entry into a shop, store, etc.

These three sections are somewhat amplified by that of 854, which declares in general terms that—

“ Whoever, with intent to rob, steal, commit a rape or any other crime, shall in the night-time enter without breaking ovinthe daytime break, or enter any dwelling house or outhouse thereto adjoining and occupied therewith, or any office, shop or warehouse, etc. * * * . shall be imprisoned at hard labor not exceeding five years.”

The italicized paragraphs of the foregoing sections will direct attention to the salient parts in making a comparison; and they clearly show that the crime of burglary is based upon the act of breaking and entering in the night-time a house of some description, except the last one.

And it declares that whoever, with intent to rob, steal, commit a rape or any other crime, shall in the night-time enter without breaking;’’ or whoever, with intent to rob, steal, commit a rape in the daytime, break or enter any dwelling house,” etc.

Dividing the section "into two parts, corresponding with the two offences denounced, it becomes apparent that the former is applicable to the indictment in the instant case, which charges the defendant with the crime of burglary in the night-time; bub that the latter is not, as it denounces burglary in the daytime.

There is no question of the fact that it is an indictable offence under this last section for one to break a dwelling house, or any store or shop with the intent to rob, steal or commit a rape therein, in the daytime; and that it is equally so to enter such a house for such a purpose in the daytime.

But the statute distinctly says “ whoever, with intent to rob, steal, commit a rape, or any other crime, shall in the night-time enter without breaking,” etc.

But, at all events, there could not be a burglary committed under either section, whether by a breaking and entering, or by breaking or entering, unless the act be accompanied by an intent bo rob, steal, commit a rape, or some other crime.

The Attorney General has pointed out two decisions upon which he relies as affirming the proposition for which he contends.

In the first one — State vs. Miller, 45 An. 1171 — we said: “ The defendant was tried and found guilty of burglary without a dangerous weapon.”

Again:

“ The verdict finds the defendant guilty of a part of the charge, but passes upon the whole by qualifying that the act was committed without a dangerous weapon. * * * In thus limiting their verdict it is brought within the berms of the case of State vs. Morris, 27 An. 481, in which the issue decided is identical with that of the case at bar.”

Referring to the case cited we find the statement quoted entirely correct.

The indictment in that case — State vs. Morris — charged that the defendant “did, with intent to kill, in the night time break and enter the dwelling house of Charles Coleman,” etc., and the verdict of the jury was “ guilty of entering the dwelling of Charles Coleman as charged, but without a,dangerous weapon.”

The principle decided in those two cases is, in our view, entirely correct, and we adhere to the opinion expressed therein, bub they do not support the charge given or the verdict rendered in the instant case. A verdict which finds the defendant “ guilty of breaking” does not respond to the terms of our statute. It should have found that the defendant “did feloniously break into a dwelling house in the night-time,” as was done in State vs. Newton, 30 An. 1253.

In State vs. McCort, 23 An. 326, it was held that when an indictment charges a breaking and entering, etc., with intent to steal, the defendant may be convicted of entering without breaking.

But it was held in State vs. Disch, 34 An. 1134, that on an indictment for burglary defendant can not be convicted of a trespass.

The crime of burglary is statutory and our own decisions are controlling.

A careful study of the question has satisfied us that the defendant’s motion in arrest was good and should have been sustained. The judgment and sentence pronounced must be arrested and the defendant discharged. He can not be put twice in jeopardy.

It is therefore ordered and decreed that the verdict and the judgment and sentence thereon based be annulled and set aside and the defendant discharged from custody.


text:
    No. 12,335.
    J. P. Dalferes vs. Victor Maurin.

      In Matter of the Exception. — The demand gave notice, definite enough, to the defendant of the grounds of action. No motion was made for a bill of particulars. Nothing indicated, during the trial, that the petition did not sufficiently set forth the cause of action.

      On the Merits. — The verdict of the jury and the judgment of the court are affirmed to the extent that the testimony shows they are correct.
    In those particulars that plaintiff’s testimony is not corroborated, the demand is dismissed as in case of non-snit.
    APPEAL from the Twentieth Judicial District Court for the Parish of Ascension. Guión, J.

      Edward N, Pugh, Howell & Pugh, and John Marks for Plaintiff, Appellee.

      R. N. Sims for Defendant, Appellant.
    Argued and submitted January 6, 1897.

      Opinion handed down January 18, 1897.
    Rehearing refused February 15, 1897.
   The opinion of the court was delivered by

Breaux, J.

This suit was brought by the plaintiff on an account for two thousand three hundred and thirty-six dollars and seven cents.

The following exception to the petition was tried and overruled, viz. :

That the allegations are vague and uncertain; without specification as to time and place, and without informing exceptor of the nature of plaintiff’s cause of action.

Subsequently the defendant, in his answer, pleaded a general denial.

The case was tried before a jury and a verdict rendered by the requisite number of nine, in favor of the plaintiff for the amount claimed.

A motion for new trial was refused, and written reasons given for the refusal.

The defendant prosecutes this appeal from the judgment.

First, as to the exception. The plaintiff in his petition sets forth the nature of his demand, the different amounts claimed, and the respective dates of the items of the account. In addition, plaintiff annexed the detailed account to his petition, which he alleged the defendant had acknowledged and promised to pay.

Moreover, it was not suggested during the trial that the averments were too vague to admit proof under them.

No bill of exception was reserved to the admissibility of testimony during the trial on grounds suggestive of vagueness of the petition.

This brings us to the merits of the case.

The learned judge of the District Court, in his written reasons overruling the motion for a new trial, was not favorably impressed by the evidence of plaintiff’s manager, upon which he asserts the plaintiff relied for a verdict. He says that he failed on cross-examination to explain the various items of the account sued on, and that he could not detail them to the extent of naming the persons to whom the money was advanced for plaintiff’s account nor the amounts advanced to each; that he invariably answered that he had on several occasions presented the items of account to defendant, and that the defendant acknowledged them to be correct and promised to pay them; that the defendant contradicted this evidence in every particular. That upon the testimony of these two witnesses the case went to trial, except that there were other witnesses who testified that defendant had instructed plaintiff’s manager to advancec ertain amounts to other persons, although defendant swears that he did not so instruct him.

The judge explains that he did not consider, under the circumstances, that he had the legal right of reversing the finding of the jury, and supported his ruling by quoting from the work of Mr. Proffat on jury trials, which reads: There must be palpable, unmistakable error, before the court is authorized to set aside a verdict.”

As a preliminary to a review of fact, in this case, we will state that which no one denies: Proof is not admissible without plea pleaded, that the consideration was contra bonos mores; the only question before the court is the indebtedness vel non of the defendant.

We will also state, in passing, that we are not entirely in accord with the views expressed by our learned brother of the District Court, for whose good judgment we entertain the highest regard.

It is true that the authority to set aside a verdict should be sparingly exercised, and in mere questions of fact the court always interferes with hesitation and reluctance.

None the less, where the verdict of a jury is clearly against the weight of the evidence, a new trial should be granted by the judge before whom the case is tried.

We affirm, however, that which was said in the “ written reasons ” of the court a qua (in so far as relates to uncorroborated testimony) for overruling the motion for a new trial :

“The corroboration of other testimony was needful.”

The testimony of the defendant unqualifiedly contradicted the testimony of the manager of plaintiff’s business. But to the extent that the testimony of plaintiff’s manager is sustained by other evidence, we think that the verdict of the jury and the judgment of the court should be affirmed.

The effect of the general negation, of all indebtedness, of the defendant as a witness is counteracted and neutralized by the corroborating testimony of plaintiff’s other witnesses (than his manager) .

This leads us to an investigation of the facts, to ascertain in what particular they are corroborative.

In addition to the testimony of the manager that six hundred dollars of the account were due, and had been acknowledged as due by the defendant, Max Dupaty, not shown by the record to have had any interest in the controversy, testifies that plaintiff was indebted to him in 1895 in the sum of six hundred dollars.

He asked the defendant if he would accept a draft of plaintiff in favor of the witness for that amount. Defendant declined to accept, but said: “I owe him that amount or probably more, but that is not our agreement and I don’t know what I will owe him at the end of the year.”

The witness Dupaty also testified: “I know that he owed that amount.”

We are also of the opinion that the item, of fifty dollars paid to Mathieu merged in the cash charged, is due for the reason that with enough particularity the manager as a witness details how the indebtedness arose. It was, we think, incumbent upon the defendant to rebut this testimony by more than his sworn denial. It was not shown that Mathieu, the creditor, had left and was not within the reach of the court’s process.

To the additional amount of thirty-eight dollars there is also corroborative testimony; making a total of six hundred and eighty-eight dollars ($688). There is ample testimony of record sustaining the claim made that defendant gave orders to plaintiff’ manager to pay for his account to different persons. This testimony, we think, is corroborative to the amount of the indebtedness we consider proven.

The weight- of the evidence, we think, sustains the correctness of the verdict and the judgment of the court to this amount. The record presents facts and testimony sufficient to a decision upon the items stated. As to the remainder of the account, to-wit: thirteen hundred and fifty-eight dollars and seven cents ($1358.07), we think that the testimony does not sustain the verdict.

“It may become the duty of the appellate court to pronounce on a question of fact in direct opposition to the verdict of a jury. Hosea vs. Miles, 13 L. 107, 110.

The decision just cited and the decisions in Collins vs. Hamilton, 14 L. 343; Miller, Lyon & Co. vs. Coppel & Curry, 39 An. 381, justify us in rendering a final judgment in this case in so far and to the amount the evidence and facts of record enable us to pronounce such a judgment.

As it may be that the plaintiff or his manager may explain the items of their account and support them by sufficient testimony we dismiss the demand for the balance of fourteen hundred and eight dollars and seven cents ($ 1408.07) as in case of non-suit.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by reducing the amount from two thousand and ninety-six dollars to six hundred and eighty-eight dollars ($688).

As amended the judgment appealed from is affirmed at appellee’s costs on appeal.


author: Miller, J.

text:
    No. 12,398.
    State ex rel. Ellen Johnson vs. Judges Leake and Thompson, of the Fourth Circuit Court.
    Where after the selection of a member of the bar to aid in the decision in respect to which the judges of the Court of Appeals disagree, one of the disagreeing judges retires and his successor enters on the duties of the office, the functions of the selected member of the bar ceases. He must act with the two judges and cannot act at all unless they disagree. Constitution, Art. 101; Amendment Acts 1882, No. 125, p. I'M.
    ON APPLICATION for Writs of Certiorari, Prohibition and Mandamus

      W. B. Kemp and O. N. Ogden for Relatrix.
    Respondent in propria persona.

    Submitted on briefs January 23, 1897.
    Opinion handed down February 1, 1896.
   The opinion of the court was delivered by

Miller, J.

The relatrix seeks to restrain the judges of the Circuit Court of Appeals for the Fourth Circuit from proceeding in the trial of an appeal from the judgment she recovered in the District Court for the parish of Tangipahoa.

The relatrix avers that on that appeal the judges of the Circuit Court disagreed, one of them being of opinion the judgment of the lower court should be affirmed, the other that the judgment should be reversed; that thereupon, in accordance with the Constitution, they selected a lawyer to aid in the determination of the case, the order for his appointment being spread on the minutes; that subsequently the term of office of one of the disagreeing judges having expired, his successor was appointed, who is now acting; that no decision having been reached in the case at the recent term of court, the rule was taken by defendant in the appeal to set aside the order appointing the member of the bar to act as judge, and at this point the relatrix conceiving that the order of the lower court for the appointment of the member of the bar could not be revoked, made the present application to this court.

The judicial function is to be performed by the judges elected or appointed, except when they can not agree; when that occurs, instead of allowing the judgment of the lower court to stand, the rule when this court was composed of four and that of the courts of appeal, until changed by the constitutional amendment, there is now the provision that a member of the bar shall be selected to aid the disagreeing judges of the Court of Appeals. Const., Art. 101; Amendment Acts 1882, p. 174, No. 125. This displacing of the judge to secure a decision arises from the necessity then existing. But if before any decision is reached in the case, to aid in the decision of which the member of the bar is called upon, that necessity ceases by the election of the judge to supersede one of the disagreeing judges, it is difficult to perceive any reason for the continuance of the functions of the member of the bar. It is urged in this case that the opinion of the superseded judge having been favorable to the relatrix, that fact entitles her to demand that the member of the bar shall continue in his functions. It is quite as apt to occur in a case like this that the opinion of the retiring judge would be against the litigant. Whether the case shall be determined by the two present judges, between whom there is as yet no disagreement, or with the aid of a member of the bar selected when in the then constitution of the court there was a failure to agree, is, it seems to us, not at all dependent on the opinion that may have been formed by the retiring judge. It is simply the disagreement of the two judges, not their respective opinions, that affords occasion for the interposi - tion of another to aid in determining the controversy. Nor is it apparent that the litigant in this case is in any worse condition by referring her suit to the incoming judge. If the member of the bar could be deemed competent to act, and the incoming judge entitled to no participation, the opinion of the member of the bar, if in conformity with that of the judge, would give the relatrix the judgment. Her fate would thus rest with the member of the bar. If he disagree with the judge, the incoming judge being excluded, she would get no judgment, for there is no legal contemplation of a disagreement between one judge and the member of the bar. .He is to act with two, not one judge. Amendment to the Constitution, Art. 101, Acts. 1882, p. 174, No. 125. On the other hand, if the member of the bar is excluded because by the election of a judge since the disagreement of the court, then the litigant secures the aid of the new judge unbiased by any previous opinion; if he agrees with the other judge, the litigant is in the same condition as if the member of the bar had acted and concurred. And if the two judges disagree, then a final determination can be secured by selecting a member of the bar. It is further contended that the member of the bar once selected he becomes the umpire; that the power of the court with respect to the case is exhausted. The answer to this argument is the member of the bar is not an umpire. He is to concur with one or other of the judges. If in this condition of this case, the participation of the incoming judge was denied and there should be no concurrence of the other judge and the member of the bar, there could be no decision, for there is no umpirage known to the Constitution to adjust a difference between the member of the bar selected and a single judge. In o.ur opinion the member of the bar chosen under Art. 101 of the Constitution as amended can act only in concurrence with the two judges of the Court of Appeals and can not act at all, unless the judges disagree. The functions of the member of the bar selected in this case, when the disagreement existed, ceased necessarily, when one of the disagreeing judges retired and his successor was elected.

The orders for the writs herein applied for are set aside and the application is denied.


text:
    No. 12,355.
    A. Eltringham vs. R. T. Clarke and R. W. Pringle.
    The law recognizes that tile order setting aside a sequestration on defendant’s bond, resulting in compelling the resort by plaintiff to another suit for relief, or in other respects changing his position to his prejudice, may work irreparable injury, and is appealable, and to this class belongs the order to dissolve on bond the plaintiff’s writ of sequestration issued to hold the property of a corporation subject to the adjustment of the rights of the co-proprietors to be made in the suit pending for that purpose. Code of Practice, Art. 566; 9 Martin, 301; 13 An. 581; 14 An. 57; State ex rel. Street vs. Judge, 35 An. 515; State ex rel. Roth vs. Judge, 38 An. 49.
    When the corporate business is ended and nothing remains except to dispose of the corporate property by sale or division in kind to make the division between the co-proprietors in accordance with the adjustments of their accounts as corporators and co-proprietors of the property, one of them is entitled to a sequestration or other conservatory writ to prevent an arbitrary disposition of the property to his prejudice. Code of Practice, Art. 273; 38 An. 49; 2 An. 87.
    Nor is the right to this protection afforded by the conservatory writs affected by the fact that the property is in the hands of liquidating commissioners.
    The court may ex officio direct the sequestration of property the subject of litigation when requisite to protect the rights of the litigants. Code of Practice, Art. 273; 35 An. 846.
    A PPEAL from the Eighth Judicial District Court for the Parish of Concordia. Dagg, J.

      Lazarus, Moore & Luce and Elam & Dale for Plaintiff, Appellant.

      Boatner & Hough for Defendants, Appellees.
    Argued and submitted January 19, 1897.
    Opinion handed down February 1, 1897.
   The opinion of the court was delivered by

Miller, J.

This is an appeal by plaintiff from the order dissolving on the bond of defendants the sequestration obtained by him of the property of the corporation of which he and defendants were shareholders.

The plaintiff and defendants were substantially the owners of all the capital stock, the other shareholders being only nominally interested and introduced only to make up the number required to organize a corporation. Its business, the execution of work on levees, proving unprofitable, the plaintiff and defendants agreed that, with the completion of the levee contracts then on hand, the business of the corporation should cease and a liquidation of its affairs should be effected. This liquidation proceeding under the control of all three of the parties to this suit, not resulting satisfactorily, a suit was brought by one of them, Pringle, for a dissolution and settlement of the business. But while that suit was pending, a corporate meeting was held, at which Pringle and Clarke, the two defendants in this case, adopted resolutions over the protest of Eltringham, the plaintiff, by which it was proposed to sell or divide the property of the corporation and liquidate its affairs, the liquidation to be conducted by the three parties, but the majority to control. At this meeting Pringle and Clarke voted together, and the plaintiff, by contrary resolution and his protest, placed himself in opposition. The effect of the resolutions was to dispense with the functions of the court invoked' to settle'the rights of the parties, and virtually subjected the plaintiff to that method of disposing of the corporate property, and adjusting his rights as his two associates acting in concert might determine. The plaintiff then appealed to the court. His petition averred the pendency of the suit to settle the partnership; that the resolutions of his fellowcorporators propo'sed to give to them the power of disposing of the corporate property by sale or division; that he disagreed with them as to the method of liquidation; that they had control and possession ot the property, were about dividing it extra-judicially and illegally, it not being susceptible of a division in kind, only to be made if practicable, by the courts; that a settlement of accounts was necessary, and he prayed for a writ of sequestration and an injuction to arrest the action of the defendant. The .writ issued and was exe - cuted; then there was an application by the defendants to bond, declined by the judge, but thereafter renewed was granted in the absence of the judge of the district, by the judge of the Sixth Judicial District Oourt, which embraces the parishes of Iberville, West Baton Rouge and Pointe Ooupee. From that order the plaintiff prosecutes this appeal, and the defendants move to dismiss on the ground the order to bond can work no irreparable injury.

The Code implies the general rule that interlocutory orders are not appealable, but grants the appeal whenever the interlocutory order is calculated to work irreparable injury. The character of the the right sought to be protected by the sequestration determines whether the order dissolving the seizure is appealable. Where the demand of plaintiff is simply for debt secured by privilege, and his writ of sequestration is dissolved by the substitution of a bond for the property, no appeal lies, the bond affording him complete protection. Thus the case cited by defendants from 21 An., Wolff vs. McKinney, p. 634, and similar decisions, hold that the order to bond a sequestration for a money demand secured by privilege is not appealable. Butifjis entirely different when the plaintiff resorts to this writ for the protection of a right of property, and in . our view this case is an illustration of that difference. The sequestration was auxiliary to the suit to settle the corporate affairs. The writ sought to keep the property' subject to such judgment as the court might render between the co-proprietors of the corporate property. If this order to bond stands, the property is withdrawn from the control of the court. If the plaintiff in his-demand for sequestration obtains relief he will have to seek, in some further proceedings, that remedy which is prompt, direct and complete, if instead of dissolving the writ the corporate property remains in the sheriff’s hands to^abide the orders and judgment for the disposition of the property and adjusting the rights of the corporators. When the bonding of the writ will compel the plaintiff to resort to another suit for relief it has been held the order to bond is appeable, and generally it may be stated whenever the bonding changes the position of the plaintiff in the writ to his prejudice he is entitled to appeal. To permit a co-proprietor to take into his possession and convert the joint property under his bond for its restitution changes the right of property for a circuitous and uncertain lawsuit on a bond, and in this case defeats that relief to be afforded in the suit to settle joint interests, the court having the property under its control. An order to bond leading to such results is, in our opinion, clearly appealable. The language of one of the decisions, in dealing, with this question, is applicable, “the sequestration improperly dissolved might forever deprive the plaintiff of the object of his suit.” State vs. Judge, 9 Martin, 301; see also Johnston vs. Johnston, 13 An. 581; White & Trufant vs. Cazenave, 14 An. 57; 35 An. 515; 38 An. 49. The motion to dismiss is therefore denied.

On the merits it is shown that the corporate business is ended. There are no debts to be paid, or if there are we infer there are funds for their payment. All that remains for the settlement of the corporate affairs is to adjust the accounts of the corporators and to distribute the corporate property or its proceeds if a sale is requisite. The charter provides for three commissioners to liquidate the corporation. The resolutions provide for three, but practically gave the control to two, and that in view of the relations of the parties shown by the record, is practically the exclusion of the plaintiff. We do not appreciate that the liquidating officers of a corporation have arbitrary power to dispose of the property committed to their charge. The law protects the interest of each of the co-proprietors. It might well be that a division in parts of a plant, such as this corporation possesses, would be to sacrifice the property, and a sale in its entirety, the only proper division. The law provides for one or the other method in partition between co-proprietors. Civil Code, Arts. 1339 et seq. When the partition is in kind there is the provision in the Code for lots to be drawn, and so-composed as to secure equality in the division. Arts. 1364 et seq. The resolutions in this case giving the power of disposition to the-two commissioners, the allegation in the petition is, that they propose to make an illegal and arbitrary division. A disposition of the joint property violative of the rights of one of the co-proprietors would, in our view, authorize a resort to the writ of sequestration. The import of the petition is that the commissioners propose to divide the plant when that division would be injurious to plaintiff, and to divide as suited them, the plaintiff to submit to any allotment they choose to designate for him. We think the law afforded plaintiff protection by its conservatory writs against any such procedure. These resolutions were adopted in the face of the pending-suit to settle the corporate affairs. The pendency of the suit is averred in plaintiff’s application for the writ. There is a power in the courts ex officio to direct the sequestration of property to protect the rights of the litigants. Code of Practice, Art. 273;. Allen, West & Bush vs. Whetstone, 38 An. 849. It is relief, or rather protection, of the same nature as that afforded by the appointment of receivers. In this point of view the condition, we think, authorized the sequestration, and in any aspect, the threatened violation of the right of property entitles the suitor to the preventive remedies prescribed by our law. 38 An. 49; Gridley vs. Connor, 2 An. 87. We are of opinion the writ properly issued. It is calculated to secure efficacy to the suit to settle the corporate business, that is to adjust the accounts between the co-proprietors and give to each the share of the corporate property to which he may be decreed entitled. This relief our courts are competent to give, and in this case the settlement is not at all difficult. We therefore shall set aside the order to bond, maintain the sequestration with a view to hold the property subject to the orders and decree of the courts in the pending suit. This method it seems to us will secure the right of all and end a controversy between corporators interested only in the division of the remaining corporate property.

It is therefore ordered, adjudged and decreed that the order to bond the property seized under the writ of sequestration be set aside, the writ maintained, and that the property be held subject to the orders and decree of the lower court in the suit to settle the partnership.


text:
    No. 12,348.
    Peoples Bank of New Orleans vs. George P. P. David et als.
    This decision affirms that given in Peoples Bank vs. David et als., 49 An., ante, p. 136.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      E. Howard McCaleb for Plaintiff, Appellee.

      Charles E. Claiborne and Merrick & Merrick for Tutor of Minors Agnelly, Defendants, Appellants.
    Submitted on briefs December 15, 1896.
    Opinion handed down February 1, 1897.
   The opinion of the court was delivered by

Miller, J.

This is an appeal by the tutor of the minors Agnelly, from the judgment in this case, the subject of the other appeal, recently decided by us.

For the reasons assigned in that decision, it is now ordered that the judgment appealed from be affirmed.


text:
    No. 12,298.
    The State of Louisiana vs. J. Freitas and Thomas A. Clayton.
    Under the limited jurisdiction of this court in reference to appeals from the courts of city recorders, the question of the guilt or innocence of a party prosecuted under a city ordinance can not be determined on appeal from such a court; but the evidence adduced on the trial in such court may be examined for the purpose of determining the constitutionality or legality of the fine or forfeiture imposed in the ordinance, but not that imposed under it.
    APPEAL from the First Recorder’s Court of the City of New Orleans. Finnegan, J.

      Rogers & Dodds for Defendants, Appellants.
    Argued and submitted January 9, 1897.
    Opinion handed down Febuary 1, 1897.
   The opinion of the court was delivered by

Watkins, J.

The defendants were arrested on a charge of having violated See. 7 of City Ordinance No. 6022, and Ordinance No. 4788, as amended by Ordinance No. 4334; and upon the trial they interposed a motion to quash the affidavits, on the ground that they preferred against them no offence known to or covered by said ordinances.

This motion was submitted upon an agreed statement of facts; and same having been overruled, the Recorder sentenced each of defendants to pay a fine of twenty-five dollars, and, in .default of payment, to suffer thirty days’ imprisonment in the parish prison, and from that decree they prosecute this appeal.

The following is substantially the statement of facts upon which the case was submitted, viz.:

That Clayton, one of the defendants, was, on the 7th of July, 1896, the general superintendent of the Southern Chemical and Fertilizing Company, Limited, and at that date instructed and directed Freitas, his co-defendant, to dump garbage in the vacant lot indicated in the aforesaid affidavits; and that he did dump the garbage accordingly. That the “ garbage so dumped was mixed garbage, composed of market sweepings, onions, potatoes, rem • nants of beefsteaks, and everything that would come from a kitchen and a yard,” etc.

“ That Ordinance No. 6022, Administration Series, of the city of New Orleans is a valid and subsisting ordinance of said city of New Orleans; that Sec. 7 of said ordinance was in force at the time (of said occurrence) ; and that said ordinance, together with Ordinance No. 4788, as amended by Ordinance No. 4334, are existing ordinances of the city.
“It is further admitted that, at the date aforesaid, the city had not designated any definite and certain locality to be used for the purpose of dumping garbage.”

On this statement there was no question raised and decided in the recorder’s court of the unconstitutionality or illegality of either of the ordinances which are drawn in question; and, consequently, there is none involved in this appeal. On the contrary, the distinct admission is that the ordinances in question are valid.

Indeed, the motion to quash, inferentially, at least, admits the legality and validity of the city ordinances by alleging that they preferred against defendants no charge known to or covered by them.

This being the case, the evidence is not, in any event, reviewable on appeal by this court; and, to determine the merits of the motion, an examination of the evidence would be necessary.

In State vs. Fourcade, 45 An. 717, this court, after citing and making a careful examination and analysis of authorities bearing on the question, said:

“ The questions of fact which the Supreme Court is required, under Art. 81 of the Constitution of 1879, to examine into in respect to the constitutionality or legality of a fine, forfeiture or penalty, are those which are necessary to be investigated for the purpose of determining those questions as to the fine, forfeiture or penalty imposed in an ordinance of a municipal corporation, not those which, if the ordinance be upheld, go to establish the guilt or innocence of the accused under the ordinance.”

In other words, the guilt or innocence of a party prosecuted under a city ordinance is not examinable by this court on an appeal from the court of a city recorder; but the evidence adduced on the trial in the recorder’s court may be examined for the sole purpose of determining the constitutionality or legality of the fine imposed in the ordinance, but not that imposed under it.

The question, correctly speaking, is that of the legality of the fine mider the ordinance, and not its legality under the facts adduced at the trial. State vs. Zurich, just decided.

In order to remedy such errors or defects as the defendants’ motion implies, some process other than an appeal should be resorted to.

We will reserve that right. .

Entertaining this view of the legal situation, we feel constrained to dismiss the appeal, and it is so ordered.


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    No. 12,168.
    New England Mortgage Security Company vs. Mrs. S. J. Metcalfe et als. Third Opposition of Miss S. B. Metcalfe.
    The third opponent claimed a mortgage prior in rauls to the mortgage of plaintiff. She alleged that the appointment of her mother as her tutrix was an absolute nullity, no inventory havingbeen made and recorded before the appointment, and that she (the ward) remained with her rights against the succession, and that her mother was an intermeddler and not a tutrix.
    Before the appointment of the mother as tutrix, the uncle of the minor took an affidavit showing the amount dué to the latter, and had it recorded.
    It was as if an extract of the inventory had been recorded. 35 An. 912.
    Article 321 of the Code can well be construed in this case with Art. 304 of the Code.
    The court holds: That in no case where the facts are, as in this case, the right of the tutrix can be Questioned collaterally. 36 An. 329.
    A PPEAL from the Eighth Judicial District Court for the Parish of i Concordia. Philip Hough, J. ad hoe.

      Elam & Dale and Denégre, Blair & Denégre for Plaintiff, Appellant.

      John S. Boatner for Third Opponent, Appellee.
    Argued and submitted January 18, 1897.
    Opinion handed down February 1, 1897.
   The opinion of the court was delivered by

Breaux, J.

This was an action of the plaintiff company to fore - close a mortgage on the Ackland plantation situated in the parish of Catahoula. The plantation was owned by Mrs. S. J. Metcalfe. Her two children, R. S. Metcalf and Sallie B. Metcalfe, signed the notes held by plaintiff as makers with the mother, and also signed the act of mortgage as mortgagors. They were not the owners of the prop - erty. Miss Sallie B. Metcalfe claimed that she had a mortgage upon the property, but that she did not know that she had a mortgage on the property at the time she signed the notes and executed a mortgage in favor of plaintiff. The mortgagors were all made defendants in the foreclosure proceedings.

Just prior to the sale under the mortgage to plaintiff, Miss Sallie B. Metcalfe enjoined the sheriff from paying the proceeds to the plaintiff company on the ground that her averred mortgage was prior in rank, and in addition, that she was not a debtor as claimed. Her mother, Mrs. S. J. Metcalfe, she alleged, received for her account as a minor the amount she claimed in the petition; that she had not qualified as her tutrix, although she filed an account of what she calls her tutorship in which she acknowledged the amount of her indebtedness.

She alleged that she will oppose the account and seek to hold her mother responsible as an intermeddler. The mother and tutrix was not cited to answer the opposition and has not filed an appearance.

The defendant in the proceedings by third opposition filed an exception of no cause of action aud pleaded an estoppel.

The judge of the lower court having recused himself by agreement of all concerned an order was granted transferring the case to be tried before the District Court for the parish of Concordia.

The exception was tried and taken under advisement by the court. The record does not disclose that it was decided.

Subsequently an answer was filed by the mortgage company expressly reserving all rights alleged by it in its exception and denying all the averments of opponent.

Further, the plaintiff company alleging that Mrs. S. J. Metcalfe was the qualified tutrix of Miss Sallie B. Metcalfe pleaded the prescription of four years against opponent’s right to set up any claim against her mother on account of her acts of tutorship, and, lastly, alleging that opponent is one of the mortgagors asked that her demand be rejected.

The exception to which we have before referred was, after trial, taken under advisement on the 6th January, 1895. A consent was entered on the minutes to a judgment thereon at chambers.

April subsequent, the court having failed to decide the questions propounded by the exceptors*the plaintiff company filed its answer.

A waiver of the exception, by the answer, was suggested by counsel for appellee in the oral argument at the bar and in his brief.

In view of the fact that the plaintiff in its answer to the third opposition expressly reserved all of its rights, as set forth in the exception, it is difficult to conclude that an exception not dilatory is waived by filing an answer.

The plaintiff answering, having waited a reasonable time for a decision on the exception, could not be held to have waived any of his rights, peremptory in character, by joining issue on the merits, with reservation expressly stated in the answer.

This brings us to the question of the validity vel non of the appointment of Mrs. Metcalfe tutrix of her daughter, Miss Sallie B. Metcalfe.

The facts regarding her appointment are, that on the 14th of February, 1878, it was ordered to issue to her, letters of tutorship of her daughter, a minor, on her taking the required oath. She took the oath as tutrix on the — day of February, 1878. Doubtless due to an oversight, the blank space was not filled by inserting the day of the month. Letters of tutorship were issued on the 19th day of February, 1878; subsequent, we have every reason to find, to the day the oath was taken. The letters of tutorship cure the slight irregularity and supply the blank space with the date previously overlooked.

The third opponent, next in order of issues, insists that the appointment of Mrs. Metcalfe was null and void, for the reason that no inventory was made, and that there was, in consequence, no certificate possible based upon an inventory.

As a question of fact, it is true that no inventory was ever made.

The third opponent, however, applied for a continuance, alleging therefor her inability to procure in time for the trial a copy of an affidavit taken by her uncle, and duly recorded on 1st of March, 1876, and reinseribed in 1885, upon which she based her claim of a legal mortgage.

The defendant, in the third opposition, admitted that the affidavit had been made and recorded as alleged, but did not admit the facts as set forth in the affidavit.

In 1879, the tutrix made an affidavit, which was duly recorded, acknowledging an indebtedness to her minor daughter of forty-four hundred dollars.

Asrelate's to jurisdiction, it must be conceded that the court had authority to make the appointment.

It is well settled when a court has jurisdiction of a case its decrees are conclusive in collateral proceedings. In other words, although the proceedings may have been defective or irregular, such defects can be taken advantage of by appeal, or by action of nullity, otherwise a judgment of a competent court might be overthrown in collateral proceeding upon the ground that the court erred in passing upon the facts.

But the third opponent assumes that the question is jurisdictional. In support of her position she invoked the article of the Civil Code prohibiting the judge from appointing a tutor, before a certificate based upon an inventory has been recorded. The express language of the article reads: “Any appointment or confirmation of such tutor before such recording shall be null and void.”

We greatly appreciate the importance of complying strictly with every requisite for the protection of the rights of minors. The inventory, it is true, is a guarantee established by law in the interest particularly of minors and others who are not sui juris. It is a matter of public order, good morals even, the object being to prevent the diverting of property from those by whom it is legitimately owned.

But the question before us for determination is not res nova. This court has passed upon a similar issue and decided that there may be formalities followed, equal in effect to an inventory and to the tutor’s affidavit of record, based upon an inventory.

In the well considered case of Broussard vs Segura, 33 An. 912-915, this court said: “ It may be that the father and tutor should have caused an inventory of his son’s estate to- be taken — that for not so doing he is censurable; but it does not follow that on account of such dereliction his minor son should suffer when the law afforded other adequate remedy which was resorted to.”

The effect was given to the affidavit of the tutor and its record in the mortgage office, without an inventory — that is, given to a recorded affidavit based upon an inventory. The court in the cited case expressly holds that the tutor was the agent and that in the absence of any written evidence of mortgage he was authorized to make oath and have it recorded and thus secure the mortgage. Here the maternal uncle acting for the minor, having knowledge of the indebtedness, made the affidavit, and from that date it securéd a minor’s mortgage. We reiterate the language of that decision to which we adhere in the case here. In the case of Stackhouse vs. Zuntz, 35 An. 529-533, no abstract had been recorded and no affidavit had been made by any one, and yet the court decided that the order appointing the tutor was not void and could not be collaterally attacked, and thereby effect was given to the two articles of the Oode, in pari materiæ, viz.: Art. 321 and Art. 364, Civil Code, the latter of which articles among the causes for removal includes the failure of a natural tutor to have an inventory made and abstract recorded in due time; thus clearly denoting that the appointment was not null and void, for in the latter case it would have been idle and futile to have made provision for removal of a tutor absolutely without authority and never appointed. Mrs. Metcalfe, the tutrix, is not a party to the suit. In proceedings not contradictorily with her it would be difficult to conclude that she is not a tutrix in this ease. In our view she was a tutrix under a valid appointment; at any rate it must be so held in these proceedings.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that the third opposition of Miss Sallie B. Metcalfe be dismissed and the sheriff is ordered to pay the proceeds of the sale in question to plaintiff.

Appellee to pay costs of third opposition in lower court and of appeal in this court.


text:
    No. 12,329.
    Anselm B. Murray vs. Kimbro & Allen.
    A controversy involving the title to nine mules valued at one hundred and forty dollars each is not within our jurisdiction.
    The court exproprio motu takes notice of the want of jurisdiction, and dismisses the appeal.
    A PPEAL from the Nineteenth Judicial District Court for the Parish of Iberia, Voorhies, J.

      Foster & Broussard for Plaintiffs in Injunction, Appellants.

      Walter J. Burke for Defendant, Appellee.
    Submitted on briefs January 5, 1897.
    Opinion handed down January 18, 1897.
   The opinion of the court was delivered by

Miller, J.

This appeal is from the judgment dismissing the third opposition of the appellants claiming the ownership of nine mules seized under plaintiff’s judgment for one thousand one hundred dollars against the defendants Kimbro and Allen.

We do not perceive the basis for our appellate jurisdiction. There is no evidence of the value of the mules except that afforded by the sale of a large number, including the nine in controversy. That price was one hundred and forty dollars each. The plaintiff’s judgment was for a sum below our jurisdiction; the amount in controversy on the third opposition is manifestly insufficient to give this court jurisdiction.

Although there is no motion to dismiss, we must take notice of the want of jurisdiction of this court, apparent, as we think, on the record.

It is therefore ordered, adjudged and decreed that this appeal be dismissed at appellants’ costs.