author: Ludeling, C. J. Howell, J.,

text:
    No. 5021.
    Maria L. Barron v. J. F. Sollibellos.
    It can not be contested that a married woman bas a right to compromise a law suit pending against berself; and transactions have, between the interested parties, aiorce equal to the authority of the things adjudged.
    It is difficult to imagine, in this instance, how it can be pretended that the money loaned by Sollibellos, the defendant in injunction, for enabling Mrs. Barron to effect a compromise about a suit brought against her, did not inure to her benefit, nor can she be listened to when saying that the debt on which she has been sued, was the debt of her husband, when the contrary is proved by the compromise thus agreed to with a view of putting an end to that law suit.
    The interventions were improperly allowed in an injunction suit which was to prevent a sale. If the intervenors have privileges, they can only enforce them upon the proceeds of the sale of the property in the hands of the sheriff; and if any part of the property seized is claimed to belong to some one else than the debtor who injoined, that claimant’s remedy is by injunction obtained according to law.
    Appeal from tbe Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      H. Byan, B. T. Bowman, Hudson & Hearn, for plaintiff and appellee. B. B. Hunter, for defendant and appellant. W. A. Seay, for intervenors.
   Ludeling, C. J.

This is an injunction suit to prevent the execution of the fieri facias issued under a judgment by confession made by the plaintiff, a married woman, in favor of Joseph P. Sollibellos.

The facts disclosed by the evidence on the record are that the plaintiff and her sister owned a plantation; that James Barron managed the . plantation, and that in 1868 Ar. Miltenberger, the commission merchant who had furnished said plantation, had an account for $27,-924 67, which he claimed was due by Mrs. Barron and her sister, and. he instituted suit thereon against them in the United States Court at New Orleans. Judge M. Ryan was employed by Mrs. Barron and Miss Barron to defend the suit, and James Barron went down to New Orleans to attend to the suit. On his way to New Orleans he traveled with Mr. Joseph M. Sollibellos, a friend, who interested himself to effect a compromise of that suit. A compromise was entered into between Miltenberger and Barron, Judge Ryan, the attorney of the defendants, being present, by which the suit pending in the United States Court was dismissed, on condition that $7500 cash should be paid to Miltenberger, and a confession of judgment in his favor for $2500 should be given at the next term of the district court in Rapides parish. Joseph M. Sollibellos advanced the $7500 to pay Miltenberger, with the understanding that for that amount Mrs. Barron should confess judment in his favor. At a term of the district court held in the-parish of Rapides in May, 1869, Mrs. Barron confessed judgment in favor of Sollibellos for the amount loaned by him, and the judgment appears to have been written up by her former attorney. Subsequently,, in October, 1873, when Sollibellos attempted to enforce this judgment Mrs. Barron injoined the execution, on the ground that the debt confessed was her husband’s, and that the judgment was therefore a-nullity.

The simple question presented for decision is, can a married woman-compromise a law suit pending against herself? We apprehend no one will dispute her right to do so. And “ transactions have, between the interested parties, a force equal to the authority of the things adjudged.” It is difficult to imagine how it can be pretended, that the money loaned by Sollibellos, for the purpose of enabling the compromise-to be effected, did not inure to her benefit. Nor can she be listened to when saying that the debt, on which Miltenberger had sued her, was the debt of her husband, for by the compromise they agreed to put an end to that law suit, to adjust their differences by mutual consent,, in the manner which they agreed on and which each party preferred to the hope of gaining, balanced by the danger of losing.

The injunction was, therefore improvidently issued.

M. Ryan intervened in the suit and claimed a part of the mules-seized, and G. W. Sentelle & Co. also intervened and claimed a vendor’s privilege on all the mules and a privilege upon the crop. There was judgment in favor of the plaintiff in injunction and rejecting the intervenors’ claims, and they and the defendant have appealed.

The interventions were improperly allowed in an injunction suit, which was to prevent the sale. If the intervenors have privileges they can only enforce them upon the proceeds of the sale of the property in the hands of the sheriff; and if any part of the property seized is claimed to belong to some one else than the debtor who injoined, that claimant’s remedy is by injunction obtained according to law.

It is therefore ordered and adjudged that the judgment perpetuating the injunction be annulled, and that there be judgment against the plaintiff in injunction and her sureties, in solido, and in favor of Joseph E. Soliibellos, dissolving the injunction and for ten per cent, on .the amount of the judgment injoined as general damages, and costs in both courts.

It is further ordered that the judgment rejecting the intervenors’ claims be reversed, and that there be judgment against them as in case of nonsuit, and for the costs of said intervention.

Howell, J.,

dissenting. As I understand articles 2398, 2412 R. C. C. and the jurisprudence relating thereto, I do not think a wife can any more bind herself, by the compromise of a suit against her for a draft of her husband, than she can by confessing judgment in such suit.

The law declares that she can not bind herself for debts contracted by him before or during the marriage, and this she can not do either directly or indirectly. The marital influence is just as potent in effecting a compromise, as a confession of judgment or execution of a notarial act, by which the wife is sought to be made responsible for a • debt of the husband or community.

What can not be done directly can not be done indirectly, and a third person advancing or loaning the money to the wife for effecting a compromise of such a debt or suit obtains no more right against the wife than the original creditor.

I therefore dissent in this case.

Rehearing refused.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 5137.
    C. E. Girardey Co. v. The City of New Orleans.
    Where the defendant in substanoe confessed judgment for the greater part of the debt, leaving in contestation only the sum of two hundred and seventy-five dollars, an amount not within the jurisdiction of the appellate court, the motion to dismiss the appeal must prevail.
    Appeal from the Superior District Court, parish of Orleans. Hawkins, J.

      Hellowes & Morphy, for plaintiffs and appellees. A. 0. Lewis, Assistant City Attorney, for defendant and appellant.
   On Motion to Dismiss.

Taliaferro, J.

The defendant being sued for one thousand dollars, the amount of four months rent of a certain building leased to the city by the plaintiffs at the rate of two hundred and fifty dollars per month, admitted the correctness of the claim but averred that the city, in order to use the leased building, was compelled to expend the sum of two hundred and seventy-five dollars in repairs on the roof, the plaintiffs having refused to make the repairs after being requested to do so. The court below rendered judgment for the whole sum claimed. The defendant appealed. The motion to dismiss is on the ground that the defendant in substance confessed judgment for the greater part of the debt, leaving in contestation only the sum of two hundred and seventy-five dollars, an amount not within the jurisdiction of the appellate court. The motion must prevail. C. P. 567. 5 Rob. 447. 4 An. 407.

It is ordered that the appeal be dismissed at costs of the appellant.


author: Morgan, J.

text:
    No. 5025.
    Mrs. Emily M. Archinard, Widow, v. Mrs. Louise Boyce, Wife of Powhatan Clark, Intervenor, and Henry A. Boyce.
    Tli© act by which the annuity for life claimed in this suit was established, seems to have been a compromise between the parties interested in the succession of plaintiff’s husband — one of the conditions beingthat she should withdraw her application to be appointed administratrix thereof, and that the payment of said annuity might be made either by Henry Boyce or the heirs of Mrs. Irene Boyce. This agreement was subsequently carried out by them partially by making payments thereon.
    This is a contract which the parties could legally make. They are bound by it. The loss to ..the defendants of the property of the succession of Irene Boyce can not affect plaintiff’s rights. It was a clear transfer of the interests in and to their succession, which she had the right to sell and the defendants to purchase. If the property perished, or was taken from them, the loss was theirs.
    But there is error in that part of the judgment which condemns Powhatan Clark, the husband of one of the defendants. He was not a party to the contract, and his wile entered into it before he married her. The property claimed in his intervention can not be made responsible for his wife’s obligation contracted before marriage. The community which had existed between them had been dissolved.
    Appeal from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      H. T. Hunter, for plaintiff and appellee. W. W. Whittington and J. G. White, for defendants and appellants and for intervenor.
   Morgan, J.

Plaintiff claims from Henry A. Boyce and Mrs. Louise Boyce, wife of Powhatan Clark, and from Clark, her husband, $900. She alleges that the defendants, heirs of Mrs. Irene Boyce, upon attaining their majority, assumed the obligations of an agreement made between herself and Henry Boyce, their father, to pay her an annuity of $300, and that this annuity for the years 1871, 1872 and 1873 is now due and unpaid.

Henry Boyce, one of the defendants, was personally cited. Mrs. Clark and her husband, being absentees, were proceeded against by attachment, and property belonging to them was taken into possession by the sheriff.

The Citizens’ Bank intervened, claiming a privilege upon a certain portion of the property attached, but as no one complains of the judgment, in so far as- it passes upon its rights, there is no need to notice it further.

Powhatan Clark, the husband of Louise Boyce, and her co-defendant, intervened and claimed that the property attached is his, and that it is not liable for the debt or claim of the plaintiff and can not be taken or held therefor.

Henry Boyce and Louise Clark, and Powhatan Clark, her husband authorizing her thereto, aver that they have been divested of all the property upon which the pretended annuity or charge in favor of the plaintiff was based ; that this property consisted of a large plantation and slaves, and that it rested under a mortgage for a large amount in favor of the Citizens’ Bank to secure a debt contracted by their ancestors, which was standing against the property before they came into possession of it, and long before the contract for an annuity now sought to be executed against them was entered into, and that it has been sold to satisfy this indebtedness. They aver further that they have now no means or income with which to pay the same, even if they were bound to do so, a fact which they deny.

There was judgment against them, and they have appealed.

The act under which the annuity is claimed from these defendants recites that it is “an agreement entered into by and between Mrs. Emily Archinard and Henry Boyce, tutor and attorney in fact, in which capacity he is representing herein the heirs of Mrs. Irene Boyce, deceased.” Although the act is silent upon the subject, we assume, and the assumption is based upon the statements in defendant’s brief, that the minor was Henry A. Boyce, and that the major was Louise Boyce, wife of Clark.

It is not necessary for us to consider whether, as tutor, Henry Boyce had tl e power without the authority thereto given to him by the judge of the minor’s domicile, upon the advice of a family meeting, to bind his ward, inasmuch as it is alleged, and we t^iink established, that when he reached the age of majority he assumed the obligation contracted for him by his tutor. The document by which this assumption was evidenced was destroyed by fire, but the plaintiff swears to it, and the defendants have not offered by their own testimony to contra-' diet her. The same is to be said of Louise Boyce. If her father was not authorized to represent her in the original contract, she bound herself by the second contract, and the question now to be decided is whether the plaintiff can recover?

The act by which the annuity was established seems to have been a compromise between the parties interested in the succession of plaintiff’s husband, one of the conditions being that she should withdraw the application which she had made to be appointed administratrix thereof. This was a contract which she was authorized by law to make. The condition of her renunciation was that Henry Boyce should pay her an annuity of $300 during her life, provided that the payment thereof might be made either by Henry Boyce or the heirs of Mrs. Irene Boyce.

It was this contract which was ratified by Henry A. and Louise Boyce, and the obligations thereof assumed by them. It was subse- ' quently carried out by them partially by making payments thereon. They are bound by it. The loss of the property to them of the succession of Irene Boyce can not affect plaintiff’s rights. It was a clear transfer of her interests in and to that succession, which the plaintiff had the right to sell and the defendants to purchase. If the property perished or was taken from them the loss was theirs. This was a risk which they took upon themselves. The judgment which compels them to perform the obligation which they assumed is correct. But there is error in the judgment which condemns Powhatan Clark. He was not a party to the contract, and his wife entered into it before he married her.' He is not therefore responsible. There is also error in the judgment which .makes his property responsible for his wife’s obligation contracted before his marriage. The property claimed in his intervention is established- to be his. The community which had existed between them had been dissolved. The personal property attached is his individual property, and should have been returned to him.

It is therefore ordered, adjudged and decreed that the judgment of the district court against Powhatan Clark and rejecting his intervention, be avoided, annulled and reversed, and that there be judgment in his favor ordering the property attached to be returned to him, and that in other respects it be affirmed, defendants to pay the costs.


text:
    No. 5138.
    Mary Ann Riley v. Mr. and Mrs. Condran.
    Plaintiff, alleging to be the heir of one Mrs. Brady, sues to be recognized as the owner of one-half of a certain lot of ground, and for the payment of the rent thereof at the rate of fifty dollars per month from the first of February, 1867 — which lot of ground belonged to the community existing between the deceased and her husband. After the death of Mrs. Brady the property, which was incumbered with a mortgage, was sold under executory process and bought by the defendant at the sheriff*s sale thereof. This defense is valid.
    Appeal from the Sixth District Court, parish of Orleans. Saucier, J.

      Bdclen (& Foley, W. B. Lancaster, for plaintiff and appellant. Timony, for defendants and appellees.
   Morgan, J.

Plaintiff sues to be recognized as the owner of the one-half of a certain lot of ground, and the rent thereof at the rate of fifty dollars per month from the first February, 1867.

The lot in question belonged, as is alleged, to the community which, existed between J. M. C. Brady and his wife, the latter of whom is dead; plaintiff claims as her heir. At the time of Mrs. Brady’s death the property sued for was incumbered with a mortgage. After her death it was seized and sold under executory process, and the defendants, at the sheriff’s sale thereof, became the purchasers. The title thus acquired is set up as a defense to this action. It must prevail. .See Randolph v. Chapman, 21 An. 486.

Judgment affirmed.


author: Howell J.

text:
    No. 5090.
    B. Burbank v. J. O. Pierce.
    'The defendant, having bound himself to give plaintiff within a certain time, a good and sufficient title to the sixteenth part of a load mine, on the fulfillment of certain conditions by plaintiff, refused at the expiration of the delay to comply with his agreement. At the trial, the plaintiff offered in evidence the said agTeement, which was rejected on the ground that it was not properly stamped, the court holding that the stamp necessary for the sale of real property should have been affixed instead of that for an agreement to sell. The court a qua erred. The document had on it the stamp required for such instruments.
    Parol evidence to show that defendant had parted with his interest in said property, and that the stock company owning the same was insolvent, to the knowledge of the defendant, one of the stockholders thereof, was not improperly offered. Plaintiff was not seeking to establish his title to real estate, but to show defendant’s inability to comply with the agreement to make a title. The evidence was not therefore subjeot to the rule requiring written proof of such title. It was certainly relevant so far as it tended to show plaintiff’s compliance and defendant’s non-compliance with their mutual obligations.
    Appeal from the Thirteenth Judicial District Court, parish of Car-’ roll. Hough J.

      Sparrow & Montgomery, for plaintiff and appellant. Montgomery & Helony, for defendant and appellee.
   Howell J.

Plaintiff sues to annul a contract for the sale of one sixteenth of a certain lead mine and farm in Illinois. At the date of the agreement, which was reduced to writing, the plaintiff paid $3500 in cash and gave two notes for $3250 each, due at one and two years, upon the payment of which the defendant bound himself to give plaintiff ■“a good and sufficient title to the same.” After the expiration of the ■delay, the plaintiff called on defendant to comply, but he declined. At the trial the plaintiff offered the written instrument, above referred to, and it was rejected on the ground that it was not properly stamped, the court holding that the stamp necessary for the sale of real property should have been affixed instead of that for an agreement to sell. We think the court erred. The document had on it the stamp required for such instruments. The stamp contended for by defendant was the one required for the act of sale which he was called on to give and which he refused. The stamp on the instrument appears to be properly canceled. The depositions offered by plaintiff were ruled out as irrelevant and establishing title to real property by parol.

The evidence was offered to show that the defendant had parted with his interest in said property and that the stock company owning the same was insolvent, to the knowledge of the defendant, one of.the stockholders, at the date of his agreement with plaintiff, and to prove the latter’s compliance with his obligations. As plaintiff was not seeking to establish his title to real estate, but to show defendant’s inability 'to comply with his agreement to make a title, the evidence was not subject to the rule requiring written proof of such title. It was certainly relevant so far as it tended to show plaintiff’s compliance and defendant’s non-compliance with their mutual obligations. With this evidence, which comes up in the record, the plaintiff has made out his case.

It is therefore ordered that the judgment appealed from be reversed and that there be judgment in favor of plaintiff annulling the contract of twenty-sixth March, 1867, described in the petition, that defendant be condemned to pay plaintiff $3500 with legal interest from said date and return to plaintiff the two notes given in pursuance of said contract and pay costs in both courts.


author: Ludeling, C. J.

text:
    No. 5116.
    Charles De Greck & Co. v. Murphy & Gairns and Homer, Rex & Tracey — Leavis, Nanson & Co., Intervenors. Appleton, Noyes & Co. v. Murphy & Gairns and Homer, Rex & Tracey — Lewis, Nanson & Co., Intervenors. Consolidated.
    The evidence in this case shows that the transfer, tbe legality of which is questioned, was not a sale, but a giving m payment; that, at the time," the transferrors were in insolvent circumstances, and that the traDsferrees knew that fact. The transfer was evidently designed to give an unjust preference to the transferees.
    The pretext that the plaintiffs were not injured by the transfer, because Homer, Hex &• Tracey, the transferees, had a privilege on the property transferred, is untenable. There is no evidence in the record to establish a privilege in their favor, and there is testimony to show that they could not have had a privilege on a large portion of the property embraced in the act of transfer.
    Appeal from the Thirteenth Judicial District Court, parish of Tensas. Hough, J.

      W. T. Méllen, J. G. Leach, Lewis <& Drake, for Charles De Greek & Co., plaintiffs and appellees. Aroni & Collier, for Homer, Rex & Tracey, defendants and appellees. Thomas P. Farrar and F. H. Farrar, for intervenors and appellants.
   Ludeling, C. J.

On the fifth of October, 1866, Murphy & Gairns, commercial and agricultural partners, in the parish of Tensas, transferred by notarial act to Homer, Rex & Tracey, merchants of St. Louis, Missouri, all their property, consisting of the crops on the Argyle and Morris plantations, one hundred and six mules, four horses, fourteen yoke of oxen, nineteen head of cattle, sheep, hogs, wagons and farming implements on the places; a warehouse and lot in Waterproof, with all the goods and merchandise, books and other personal property-belonging to them in Tensas parish, including the open accounts in favor of the vendors, amounting to upwards of $9800.

The act declares that the consideration of the sale is that the said' Homer, Rex & Tracey “have this day paid cash to Murphy & Gairns the sum of $66,159 48,” the receipt of which is acknowledged, and for the balance of the consideration Homer, Rex & Tracey assumed to pay-certain freedmen working said plantations $2312, subject to some credits, and to pay $2502 70, balance due eleven freedmen on Home plantation for cotton purchased from them by Murphy & Gairns.

In January, 1867, plaintiffs instituted these suits¡ alleging in substance that the sale was not made for cash, as declared by the parties; that the obligors were at the time in insolvent circumstances; that this fact was well known to the obligees, and that the contract of sale was designed to give and it did giye to the obligees, who were creditors of Murphy & Gairns, an advantage over plaintiffs and other-creditors of the obligors.

Lewis, Nanson & Co., having a claim against Homer. Rex & Tracey, instituted an attachment suit against them in the same court, and caused writs of attachment and garnishment to be served on Julius Aroni and others who had been garnisheed in plaintiffs’ suits. They afterwards intervened in these suits, claiming that they were entitled to the funds in the hands of Julius Aroni, the garnishee.

The district judge decided that the funds in the hands of Aroni, the-garnishee, were part of the assets transferred by Murphy & Gairns to* Homer, Rex & Tracey; that the transfer to them was fraudulent, and that the funds in the hands of the garnishee be paid to the plaintiffs-

The intervenors alone have appealed.

The evidence shows that the transfer was not a sale, but a giving i» payment, and that at the time the transferrors were in insolvent circumstances, and that the transferrees knew that fact. The transfer-was evidently designed to give an unjust preference to the transferreesC. C. art. 2658. Article 1982 declares: “ If the party with whom the-debtor contracted be in fraud as well as the debtor, he shall not, on the annulling the contract, be entitled to a restitution of the price or consideration he may have paid, except so much as he shall prove has; inured to the benefit of the creditors, by adding to the amount of property applicable to the payment of their debts; but if the consid■oration be a sum due from such debtor to the party with whom he •contracted, then the only restitution to be'made is the placing the parties in the situation in which they were before the contract complained of was made.”

The pretext that the plaintiffs were not injured by the transfer because Homer, Rex & Tracey, the transferrees, had a privilege on the property transferred, is untenable. There is no evidence in the record to establish a' privilege in their favor, and there is much testimony to •show that they could not have had a privilege on a large portion of •the property embraced in the act of transfer.

It is therefore ordered and adjudged that the judgment of the court •a qua be affirmed with costs of appeal.


author: Wyly, J.

text:
    No. 3314.
    Adam H. Carraway v. The Merchants’ Mutual Insurance Company.
    Tbe plaintiff sues defendant for the alleged loss of a stock of goods by fire. The only important question in the case is, whether the action is barred, because it was not brought within one year from the date of the loss. The fifteenth condition of the policy provides: “ All claims under this policy are barred unless prosecuted within one year ficom the date of the loss. Ho claim for loss to bear interest before judicial demand.”
    The court finds nothing doubtful or ambiguous in this clause of the policy. It means what it says: “ That all claims under the policy are barred unless prosecuted (that is sued on) within one year from the date of the loss.”
    Appeal from tlie Seventh District Court, parish of Orleans. Gallons, J.

      Semmes <& Mott, for plaintiff and appellant. A. VoorMes, for defendants and appellants.
   Wyly, J.

The plaintiff, alleging that his stock of goods in his store in Catahoula parish, insured by the defendant at $4000, was wholly destroyed by fire on twenty-ninth October, 1868, sues the defendant for $3500, the amount of the loss susfained by him by reason of said fire. The defense is that the preliminary proof was not furnished in conformity with a clause of the policy, and also the action is barred because it was not brought within one year from the date of the loss, as required by an express stipulation in the policy.

The court gave judgment in favor of the defendant, and the plaintiff appeals.

The important question is, is the action barred, because it was not brought within one year from the date of the loss. The fifteenth condition of the policy provides that: “ All claims under this policy are barred, unless prosecuted within one year from the date of the loss. No claim for loss to bear interest before judicial demand.”

The plaintiff contends that the meaning of the word “ prosecuted ” Is doubtful, its general meaning being the continuance of efforts already "begun, and its technical meaning being the institution of a lawsuit; that this doubt should be construed in favor of plaintiff, because the restrictive clause was imposed by the defendant as a stipulation in its favor. He, therefore, interprets the fifteenth condition of the policy to mean that all claims are to be barred, unless the preliminary proof is made within one year from the date of the loss, or some effort is made to establish the claims. The plaintiff also insists that if the word ■“prosecuted” be held to mean sued on, that the year within which suits must be brought does not commence to run until the right to prosecute the claim arises, which is sixty days after the claim is proved and adjusted, according to an express provision of the policy; and that under this construction this action is not barred, because it was brought within one year from the time the preliminary proof was completed.

We are unable to agree with the learned counsel of the plaintiff in the construction which he places upon the fifteenth condition of the policy. In it we find nothing doubtful or ambiguous. We think it means what it says, that “ all claims under this policy are barred, unless prosecuted (that is, sued on), within one year from the date of the loss. No claim for loss to bear interest before judicial demand.”

It is therefore ordered that the judgment herein in favor of the defendant be affirmed with costs.

Rehearing refused.


author: Wyly, J. Morgan, J.,

text:
    No. 3397.
    P. Bradley & Co. v. Mrs. S. A. Woodruff and John McCrea.
    ■plaintiffs agreed to famish defendants with the means and supplies required to make a crop. Defendants agreed to ship their crop to the plaintiffs. Defendants made their crop and sent a portion of it to 25Tew Orleans, within the jurisdiction of the court a qua, to another person than the plaintiff. Said portion of the crop, on which plaintiffs claimed the furnishers’ privilege for supplies, was sequestered by them.
    The Seventh District Court erred in entertaining jurisdiction, because the domicile of the defendants was in the parish of St. Bernard. The conservatory order of sequestration was improperly granted, and, at the trial, should have been set aside and the suit dismissed.
    The court, having no jurisdiction of the persons of the defendants, had no authority to determine either the amount or character of the demand set up against them by the plaintiffs; it could not decide that defendants were indebted to plaintiffs in any specific sum, and that there was the furnisher of supplies privilege on the cotton sequestered.
    Appeal from the Seventh District Court, parish of Orleans. Col-lens, J.

      Budd & Grover, for plaintiffs and appellees. Bentinek JSgan, for defendants and appellants.
   Wyly, J.

The defendants, who were Sued for $1772, balance of account for the years 1868 and 1869, set up by the plaintiffs as factors furnishing supplies, appeal from the judgment maintaining the sequestration of twelve bales of their cotton, and recognizing the plaintiffs’1 lien as furnisher of supplies for tie sum of $1175 42. The defendants being residents of the parish of St. Bernard, the court maintained their exception of domicile and rejected the demand for a personal judgment against them.

As the Seventh District Court had no jurisdiction, because the domicile of the defendants was in the parish of St. Bernard, the conservatory order of sequestration was improperly granted, and at the trial it should have been set aside and the suit dismissed.

The court having no jurisdiction of the persons of the defendants, had no authority to determine either the amount or character of the demand set up agaiust them by the plaintiffs; it could not decide that defendants were indebted to plaintiffs in any specific sum, and that there was the furnisher of supplies privilege on the cotton. Being without jurisdiction the court could make no order in the premises.

It is therefore ordered that the judgment appealed from be annulled, and it is now ordered that this suit be dismissed at the costs of appellees in both courts.

Morgan, J.,

dissenting. Plaintiffs are commission merchants residing in this city.

Defendant is a planter living in the parish of St. Bernard.

Plaintiffs agreed to furnish defendant with the means and supplies-required to make a crop. Defendant agreed to ship his crop to the plaintiffs.

The furnisher of supplies has a privilege on the crop to secure the payment of his advances.

Defendant made his crop and sent a portion of it to a person other than the plaintiffs. Plaintiffs, claiming an indebtedness for supplies, and finding the property upon which their privilege rests within the jurisdiction of the Seventh District Court of this ciiy, sequestered it. They are dismissed because the defendant resides in the parish of St. Bernard, and can not be sued in the parish of Orleans. The doctrine-announced by the court, as I understand it, is that a sequestration is a mere accessory to a principal demand, and as no judicial demand can be made upon a party except at his domicile, no court, except the court of the domicile of the defendant can issue the writ. I can not-assent to this proposition. I have not been able to find the law upon which it rests, and I know of no authority to support it. I have been-referred to the cases of Mallard v. Cooley, and Alter v. Pickett. The first case, not reported, expressly passes over the question, and the second, 24 An. p. 513, does not, in my opinion, touch it. Alter’s case was this: Alter obtained a judgment against H. C. Cummings in the Third District Court for the parish of Orleans. He then, after issuing fieri facias, filed a petition propounding interrogatories to Mrs. Pickett under the act of 1839. These interrogatories were served upon her personally in this city. Additional interrogatories were served upon her at her domicile in the parish of Bossier. They were taken for confessed, and judgment was rendered against her. This judgment was recorded in the parish of Bossier, and suit was afterwards instituted against the third possessor of property which was alleged to be subject to this judicial mortgage. The decision was that the judgment against Mrs. Pickett was an absolute nullity, because it was obtained against her in the parish of Orleans while her domicile was in the parish of Bossier.

Granted that this decision is correct, I do not see in what it resembles the one now under consideration. No question of privilege was before the court, nor was any property sought to be sequestered therein.

Debts due for necessary supplies furnished to any farm or plantation, not including articles furnished and which were sold to laborers, and debts due for money actually advanced and used for the purchase of necessary supplies, and the payment of necessary expenses for any farm or plantation on the crop of the year and the proceeds thereof, are privileged debts for which the crop stands responsible. C. C. 3217.

“ The plaintiff may obtain a sequestration in all cases where he has a lien or privilege on property, upon complying with the requisites of the law.” C. P. 275. It is the crop which in reality owes the debt for the advances and supplies which alone enabled it to be raised, and on that crop the privilege exists, and this privilege can, I think, be asserted wherever the crop or its proceeds, is found. And this in the very nature of things. A planter, for instance, lives in the parish of Claiborne. He agrees with a merchant in New Orleans that in consideration of the merchant’s furnishing him with the supplies necessary to carry on his plantation he will send him his crop, the proceeds whereof are first to be applied to the payment of these advances. The merchant complies with his contract. The crop is made and gathered. It is sent to New Orleans, but not to the merchant who has a privilege upon it. He learns that it is here. Under the decision just pronounced, to obtain a sequestration, by which alone his rights can be established, he must send to the parish of Claiborne, obtain an order of sequestration from the court there upon property not within its jurisdiction, and cause the same to be executed here. Any one can see that, in such a case, when the writ arrives the crop may be in mid ocean. This, it seems to me, is only pointing out a road which those who wish to act dishonestly may follow with perfect success. I am-opposed to it.

I think the law means what it says', and that when one has a privilege accorded to him upon a certain property, he may exercise that privilege in whosesoever hands the property may he found, and wherever it may he found, regardless of the question of domicile.

I therefore dissent.


text:
    No. 4939.
    Mary A. Dockham, Wife, etc., v. City of New Orleans. Jotham Potter, Subrogee.
    Xu September, 1872, Potter, subrogee of the judgment styled Josephine Lacoste v. Mary Ann Nugent, who is represented as being no other person than Mary Ann Dockham, issued execution and seized under garnishment process the judgment of the plaintiff, Mary Ann Dockham v. The City of New Orleans. Before the garnishment proceeding was tried, to wit, in November, 1873, Mrs. Jane O’Rourke, subrogated to the judgment of the plaintiff" against the city, filed, a rule for the parties in interest to show cause why the amount of said judgment should not be paid to her.
    It is evident that Potter has a right to the judgment in controversy, which is superior to that of the plaintiff in rule, because the seizure under garnishment proceeding was made before the city was notified of the transfer of the judgment to Mrs. O’Rourke, plaintiff in rule. Until this notice was given to the judgment debtor, the transferree was not possessed of the judgment, so far as Potter, a third person, was concerned.
    To the objection that the judgment in the case of Josephine Lacoste v. Mary Ann Nugentwas a nullity, because the agent who confessed judgment was unauthorized to do so, the-answer is, that the judgment was consented to by an attorney at law in behalf of Mary Ann Nugent, and his authority was not denied under oath.
    It is further objected that the seizure lapsed because the sheriff detained in his hands beyond the seventy days the fieri facias upon which tho garnishment process issued. This court, finds that the writ was returned and a copy issued by the clerk upon which the seizure continued, in strict compliance with the law. Besides, an irregularity of this kind on the part of the sheriff would not release the seizure nor destroy the lien acquired thereby.
    Appeal from the Fifth District Court, parish of (Mefitis. GJullom, J.

      Kennard, Howe & Prentiss, for Potter, appellant. Gf. Schmidt, for O’Rourke, appellee.
   Wyly, J.

In February, 1869, the plaintiff recovered judgment against the defendant for $1000, and on appeal said judgment was affirmed by this court in November, 1872.

In September, 1872, J. Potter, subrogee of the judgment styled Josephine Lacoste v. Mary Ann Nugent, issued execution and seized under garnishment process the judgment of the plaintiff against the-city of New Orleans.

In answer to the second interrogatory, the Mayor stated that “Mary A. Nugent, wife of Dockham, has a judgment against the city of New Orleans for one thousand dollars, which judgment is now on suspensive appeal to the Supreme Court of the State of Louisiana.”

Before this garnishment proceeding was tried, to wit, in November, 1873, Mrs. Jane O’Rourke, subrogated to the judgment of the plaintiff against the defendant, filed the following rule: “On motion of G-. Schmidt, attorney of Mrs. Jane O’Rourke, subrogated to the claim of plaintiff, and of John R. O’Rourke, her husband, who joins in this motion for the purpose of assisting his wife, ordered that the city o^ New Orleans, Henry C. Miller, Esq., and Jotham Potter, subrogated to the claim of Josephine Lacoste, show cause on Thursday, the tenth November, instant, why the city should not pay the.amount of the judgment obtained against it in the above suit, say $1000, with five per cent, interest from twenty-seventh October, 1868, and costs.”

The court made the rule absolute, requiring the city to pay over to plaintiff in rule the amount of said judgment, less $125 seized by Henry C. Miller in suit No. 3444.

From this judgment Jotham Potter, subrogated to judgment of Lacoste against Mary Ann Nugent, has appealed.

There is no controversy in this court in regard to that part of the judgment in favor of Miller. The contest is between the plaintiff in rule and the appellant.

It is evident that the appellant has a right to the judgment in controversy superior to the plaintiff in rule, because the seizure under garnishment proceeding was made before the city was notified of the transfer of the judgment to Mrs. O’Rourke, plaintiff in rule.

Until this notice was given to the judgment debtor, the transferree, Mrs. O’Rourke, was not possessed of the judgment so far as appellant, a third person, was concerned. Revised Code 2613, 2644.

The plaintiff in rule, however, contends that the judgment of the appellant is an absolute nullity, because the agent who confessed judgment in that case, to wit, the case of Lacoste v. Mary Ann Nugent, was unauthorized to confess judgment for her.

The answer to this is, the judgment was consented to by an attorney at law in behalf of Mary Ann Nugent, and his authority has not been denied under oath. Dangerfield v. Thruston, 8 N. S. 232. It is also objected that the seizure lapsed because the sheriff detained in Ms hands, beyond the seventy days, the fieri facias, upon which the garnishment process issued. We find that the writ was returned and a copy issued by the clerk upon which the seizure continued, in strict compliance with the law. Besides, an irregularity of this kind on the part of the sheriff, would not release the seizure nor destroy the lien acquired thereby. Revised Statutes, sections 3415, 3416.

It is further objected that the plaintiff is not a judgment creditor of Mrs. Mary A. Dockham and therefore had no right to seize her judgment against the city of New Orleans; that Mary Ann Nugent, against whom he has judgment, is not the same person as Mrs. Mary A. Dock-ham.

This defense was not pleaded by plaintiff in rule. It seems to have been set up in this court for the first time. It is true there is not positive proof of the marriage of Mary Ann Nugent to John M. Dockham, as there probably would have been, had the question been raised in the court below j but still we think we are justified from the evidence to. conclude that Mary Ann Nugent and Mrs. Mary A. Dockham is the «ame person. We find in the evidence that Mary Ann Nugent is the •daughter of P. S. Nugent, and that Mrs. Mary A. Dockham is the daughter of P. S. Nugent.

In answer to the secopd interrogatory in the garnishment proceeding, the Mayor of New Orleans states that “Mary A. Nugent, wife of Dockham has obtained a judgment against the city, etc.;” and this was the reply to the interrogatory, “has Mary A. Nugent, wife of Dockham, •obtained any judgment against the city, etc.” We think the identity •of the person is sufficiently established. There are other objections, but they are not of a serious character.

It is therefore ordered that the judgment herein in favor of plaintiff in rule be annulled, and it is now ordered that the city of New Orleans, garnishee herein, pay over to the appellant the amount of the judgment of Mary A. Dockham v. The City of New Orleans, less one hundred and twenty-five dollars, seized by H. C. Miller in suit No. 3444 on the docket of the Fifth District Court. It is further ordered that plaintiff in rule pay costs of both courts.

Rehearing refused.


text:
    No. 4769.
    State of Louisiana, ex rel. John T. Hayes, v. The City of New Orleans.
    The order of the court a qua dissolving the injunction in this case is one which, in the opinion of this court, might work an irreparable injury to the relator j therefore the relator had a right to appeal from it. The judge below erred in dissolving the injunction.
    Appeal from the Superior District Court, parish of Orleans, llawMns, J.

      A. P. Field, Attorney General, for relator and appellant. George S. Lacey, City Attorney, for defendant and appellee.
   Taliaferro, J.

An injunction was obtained by the plaintiffs to restrain and prevent the city authorities from sending to the hospital of Dr. Anfoux indigent persons afflicted with the small-pox, to be taken care of and treated in that hospital at the public expense. The plaintiffs allege that by an act of the Legislature passed in the year 1872, provision was made for the benefit of indigent persons afflicted with small-pox and other contagious disorders, by directing that such patients should be removed to the Luzenberg Hospital for treatment and attention at the expense of the city, and making it unlawful for any of the city authorities to infringe the provisions of the act and prescribing penalties for any violation of the law.

The answer is a general denial, and it alleges the unconstitutionality of the act of the Legislature relied upon by the plaintiffs; and upon a rule to show cause why the injunction should not be dissolved, as, upon bond given by the city, and after hearing the parties, the court so ■ordered. “

From this order the plaintiffs have appealed.

The order dissolving the injunction is one which, in our opinion, might work an irreparable injury, and we therefore conclude the plaintiff had a right to appeal from it.

We think the court erred in dissolving the injunction.

It is therefore decreed that the order appealed from be annulled and set aside; that the injunction be reinstated, and that this case be remanded to the court of the first instance to be proceeded with according to law, the defendant and appellee paying the costs of appeal.


author: Morgan J.

text:
    No. 3392.
    Charles A. M. Poutz v. Auguste Reggio.

      A writ of attachment can l>e dissolved by exception as well as by rule to show cause. This course is pointed out in the 258th article of the Code of Practico which declares: “If the defendant, thus made a party to a suit, appear after having been served with the citation, or prove in a summary way, after having given due notice in writing to the adverse party, that the allegations on which the order for attachment had been obtained were false, such attachment shall be dissolved, and the party will be allowed to proceed in his defense as in ordinary suits.”
    The exception in this case was in writing, and this is the notice required by law. Defendant might, under the practice which has grown up since the Code was adopted, have taken a rule to show cause, but there is no reason why ho should not pursue the course pointed out by the written law, instead of that which convenience has made customary.
    Appeal from the Second Judicial District Court, parish of Plaque-mines. Pardee, J.

      P.H. McCaleb and James Foulhouae, for plaintiff and appellant. Sambola Pueros, for defendant and appellee.
   Morgan J.

Plaintiff instituted suit against the defendant, and upon his allegation that the defendant was about to convert his property into money with intent to place it beyond the reach of his creditors, and that he had mortgaged his property and had caused the mortgage to be inscribed with intent to give an unfair preference to Edward Reggio, obtained a writ of attachment against his property.

To this proceeding, after bonding the property attached, the defendant excepted upon various grounds, among others, that no facts were stated in support of the affidavit for attachment, and that the affidavit is untrue.

The exception was maintained and the attachment set aside. Plaintiff has appealed.

In this court he says that the only question necessary to be decided is, can a writ of attachment be dissolved by exception, or is a rule to-show cause the proper mode of proceeding? ”

We answer that defendant’s cause is pointed out in the 258th article of the Code of Practice which declares “if the defendant, thus made a party to a suit appear, after having been served with the citation, or prove in a summary way, after having given due notice in writing to-the adverse party, that the allegations on which the order for attachment had been obtained were false, such attachment shall be dissolved, and the party will be allowed to proceed in his defense as in ordinary suits.” The exception was in writing, and this is the notice required by law. He might, under the practice which has grown up since the Code was adopted, have taken a rule to show cause, but we see no reason why he should not pursue the course pointed out by the written, law instead of that which convenience has made customary.

On the merits of the exception we think the judgment is sustained by the evidence.

Judgment affirmed.


text:
    No. 3289.
    William Drew v. Attakapas Mail Transportation Company and Tupper.
    The plaintiff having alleged that he was the owner of the boat for injury to which he claims, damages, it was not competent for him to prove that he was not the owner, but only the charterer, and interested in another and very different capacity from that of owner.
    Appeal from the Fourth District Court, parish of Orleans. Théard,, J.

      William Grant, for plaintiff and appellee. Breaux & Fenner, for defendants and appellants.
   Taliaferro, J.

This suit was brought to recover $748 damages suffered by the plaintiff, as he alleges, from a collision between the steamers Warren Bell and Mary Gray in the Bayou Teche, on the fourteenth of June, 1869, by which the Mary Gray was sunk. The-plaintiff charges that this collision was caused by the gross carelessness of the master and officers of the Warren Bell.

The answer is a general denial.

The plaintiff had judgment and the defendant has appealed.

A bill of exceptions was taken on the part of the defendant to the admission of evidence to prove that, at the time of the accident, the plaintiff was in possession of the Mary Gray as charterer, on the ground that there being no allegation of possession on his part other than as owner, proof of possession as charterer could not be admitted for want of proper and sufficient averments to admit such testimony; the allegations of the plaintiff in his petition being that he was owner, he could not contradict them. We think the objection to the admission of the testimony should have been sustained. Having alleged that he was the owner of the boat, it was not competent for him to prove that he was not the owner, but only the charterer, and interested in another and very different capacity from that of owner. There being then no evidence of interest to enable the plaintiff to prosecute a suit for danjages, the plaintiff fails in his case.

It is therefore ordered that the judgment of the court a qua be annulled, and that this suit be dismissed as of nonsuit.


text:
    No. 3371.
    James B. Taylor et al. v. Charles Lauer et al.
    The defendants invoke their title as purchasers "by mesne conveyance from the succession of Elizabeth Clew through John E. Clew, who acquired the property from that succession under the last will and testament of Elizabeth Clew, duly approved, registered and executed by judgment of the Second District Court, and put into possession as universal legatee under that will, this action of the Second District Court of New Orleans being, as it seems, predicated upon the proof that the will of the decedont had been duly admitted to probate by a decree of the surrogate of the county of New York.
    Bights acquired by third parties by virtue of a judgment which is rendered by a court of competent jurisdiction after fulfillment of all the legal forms and requisites, and which is final and executory, become, as a general rule, fixed and absolute, and can not be divested by a subsequent reversal of the judgment upon a devolutive appeal.
    An exception to the above mentioned rule would be where fraud had been practiced in obtaining the final judgment and the party in interest was party to the fraud, or where the fraud is apparent upon the record and could have been detected by an inspection of it. No exception of this sort is pretended to exist against the rights claimed by the defendants.
    Appeal from the Fourth District Court, parish of Orleans. Théard, J.

      Wallace & Maudlin, for plaintiffs and appellees. O. Moselius & A. Philips, for defendants and appellants.
   Taliaferro, J.

The plaintiffs sue as heirs at law of Elizabeth Clew, deceased, to recover a lot of ground in the city of New Orleans in possession of the defendants, who, in answer to the petition of the plaintiffs, allege that they are the legal owners of the property under regular and valid deeds of conveyance.

Judgment was rendered in favor of plaintiffs, and the defendants have appealed.

Elizabeth Day, wife oí John F. Clew, died in the city of New York ■on March 4, 1859, leaving property of considerable value in the city of New Orleans. During that month Asa F. Cochran, a resident of New Orleans, applied for the administration of her estate. Clew, the surviving husband, opposed this application of Cochran, representing that his wife had left a will constituting him her universal legatee. Afterwards, Cochran filed another petition setting forth that he represented, under power of attorney, the legal heirs of the deceased, and urged this as an additional reason why he should be appointed administrator, and alleged further that the last will and testament of Mrs. Clew, under which John F. Clew claimed to be universal legatee, was then in litigation in New York and its validity as a last will was being contested. Clew thereupon rejoined by another opposition denying that the plaintiffs were the heirs of his deceased wife, or that she died intestate. He affirmatively set up the will as being in due form under the laws of the State of New York ; that the will had been presented to the surrogate of the county of New York for probate; that it was on file among the archives of his office and could not be withdrawn. With this amended opposition he filed a certified copy of the will. He prayed that upon due proof being made the will be admitted to probate, and prayed for a commission to take testimony in New York.

This took place in April, 1859. Some time subsequently, in January, 1861, Clew filed a supplemental petition in which he represented that since the filing of his original petition the last will of Mrs. Clew had been admitted to probate by the surrogate of the county of New York ■and filed a duly certified copy of the will and of its probate in the court of the surrogate, and prayed to be confirmed as executor and for an inventory. An order was rendered on the same day for the approval, registration and execution of the will and for the confirmation of the petitioner as executor. An inventory having been made, letters were issued to Clew upon his executing bond in the sum of twenty thousand dollars.

The war coming on, things remained in statu quo until the twenty-ninth March, 1866. Clew filed a petition praying to be relieved from the executorship, presented his final account and prayed to be put into possession of the succession as universal legatee. He was accordingly recognized as the universal legatee and put into possession of the property of the succession, among which was the property forming the subject of this litigation. He then sold (in April, 1866), the property in controversy to James G-. G-ernon who, failing to pay the credit portion of the price when it became due, was proceeded against and judgment being obtained, execution issued and the property purchased by Gernon from Clew was seized and sold, the defendants in this suit becoming the purchasers in April, 1869. In May, 1870, Cochran, claiming to represent the heirs at law of Mrs. Clew, brought an action in the Second District Court to annul and set aside the judgment of that court recognizing John F. Clew as universal legatee of Elizabeth Clew, and putting him in possession of her estate, on the ground that it had been improvidently rendered, and showed that the decree of the surrogate of New York admitting the will to probate had been annulled by a judgment of the Supreme Court of the State of New York, which recognized the heirs represented by him as entitled to the estate, and declaring that Elizabeth Clew had died intestate.

This suit, instituted by Cochran to annul, was brought against P. B. Foulke, public administrator, representing the succession of John F. Clew who, pending these proceedings, had died. In June, 1870, a judgment was rendered by the Second District Court annulling the decree of March, 1866, putting John F. Clew in possession as universal legatee, and declaring that Elizabeth Clew died intestate. After this judgment was rendered and became executory, in July, 1870, the plaintiffs instituted the present suit against the defendants as third possessors of the lot of ground sold by John F. Clew to Gernon, and sold under execution and purchased by the defendants.

We think the judgment of the lower court erroneous. We ar© unable to find in the record any evidence that satisfies us1 that the defendants, in purchasingthe property in question, had any knowledge of the contestation going on upon appeal in the Supreme Court of New York, and that the validity of the will of Mrs. Clew was still contingent when they purchased the property at sheriff’s sale in April, 1869, They invoke their title as purchasers by mesne conveyance from the succession of Elizabeth Clew through John F. Clew, who acquired the property from that succession under the last will and testament of Elizabeth Clew, duly approved, registered and executed by a judgment of the Second District Court and put into possession as universal legatee under that will. This action of the Second District Court of New Orleans being, as it seems, predicated upon the proof that the will of the decedent had been duly admitted to probate by a decree of the surrogate of t-he county of New York.

Rights acquired by third parties by virtue of a judgment rendered by a court of competent jurisdiction after the fulfillment of all the legal forms and requisites, and which is final and executory, become as a general rule, fixed and absolute, and can not be divested by a subsequent reversal of the judgment upon a devolutive appeal. An exception to this rule would be where fraud had been practiced in obtaining the final judgment and the party in interest was a party to the fraud, or where the fraud is apparent upon the record and could have been detected by an inspection of it. No exception of this sort is pretended to exist against the rights claimed by the defendants. 12 An. 346. 8 La. 424. 16 La. 433. 5 N. S. 214. 10 An. 275.

It is therefore ordered that the judgment of the district court be annulled and set aside. It is further ordered that there be judgment in favor of the defendants, quieting them in their title and possession of the property in controversy, the plaintiffs and apxtellees paying costs in both courts.

Rehearing refused.


text:
    No. 3404.
    Mrs. Wm. A. M. Winter v. City of New Orleans.
    This suit can not he maintained under the provisions of Art. 509. C. C. and section 318, of the Revised Statutes, on which plaintiff relies in claiming the hatture to which she alleges to he entitled, inasmuch as she is not a riparian proprietor and does not even own the soil situated on the edge of the water.
    Appeal from the Fifth District Court, parish of Orleans. Leam,mont J.

      O. F. Bucle, for plaintiff and appellant. Geo. 8. Lacey, City Attorney, for defendant and appellee.
   Morgan J.

On the seventh of July, 1848, plaintiff purchased a •certain lot of ground situated in the suburb Delord of this city, in square bounded by Front Levee, Suzette, New Levee and Gaiennie •streets, measuring twenty-one feet, three inches and six lines front, on Front Levee street, by ninety feet in depth and front on Gaiennie street. ”

She brings the present action under the article 509 of the Code and section 318 of the Revised Statutes, alleging that she is a riparian proprietor and as such entitled to all the batture which has formed, or which may form in front of her property, excepting so much of it as may be necessary for public utility and use, and that batture sufficient to be made available by her has accumulated in front of her property. She prays for judgment decreeing her to be the owner of the batture formed in front of the property above described, between it and the Mississippi river to a width between parallel lines of twenty-one feet six inches and three lines, excepting so much thereof as shall be ascertained to be necessary for purposes of public utility, and that she be put in possession thereof.

The art. 509 C. C. declares that “ the alluvion belongs to the owner of the soil situated on the edge of the water, whether it be a river or stream, and whether the same be navigable or not, who is bound to leave public that portion of the bank which is required by law for the public use. ” Section 318 of the Revised Statutes provides that ■“ whenever the riparian owner of any property in the incorporated "towns or cities in this State is entitled to the right of accretion, and batturehas been formed in front of his land more than is necessary for public use, which the corporation withholds from him, he shall have the right to institute suit against the corporation for so much of the batture as may not be necessary for public use,” etc.

The difficulty in the way of the plaintiff, under the article of the Code upon which she relies is, that she does not own the soil situated -on the edge of the water, and her difficulty as regards the section of the Revised Statutes is, that she is not a riparian owner, and her last •difficulty is, that inasmuch as she purchased property fronting on Front Levee, we can not alter her title so as to make it front to the river.

It is therefore ordered, adjudged aud decreed that the judgment of the District Court be affirmed with costs.


author: Ludeling, C. J. Wyly, J.

text:
    No. 2827.
    Richard Francis v. William Lavine et als.
    All the objections urged in this case as grounds for dismissing tbe appeal, except tbe last, were waived by failing to filo tbe motion within three days after the return day.
    As to tbe last objection referred to — wbicb is tbat all tbe parties interested in tbe judgment have not been made parties to tbe appeal, it is untenable. There is in tbe record an order for an appeal granted on motion in open court, and tbe bond is executed in favor of tbe clerk. All tbe parties who have not appealed are appellees.
    Tbe defendants, except one, who has not appealed with tbe rest, pleaded certain exceptions and answered to tbe merits. Tbe case was submitted to tbe judge on the merits, without bis being previously required to dispose of tbe exceptions. Tbe rule is that tbe exceptions are considered as abandoned in such a contingency.
    This rule is not inapplicable because tbe defendants were not present at tbe trial. If they desired their exceptions passed upon by tbe court it was their duty to be present, to urge it, before tbe case was taken up on its merits.
    Tbe defendants object tbat a dispute among tbe owners relative to tbe employment aud sale of a vessel belongs exclusively to tbe admiralty jurisdiction, and tbat tbe State courts are without jurisdiction. Tbat is not tbe question involved in bbis case. It is whether tbe defendants shall pay damages for breach of the contract of partnership, and also whether there shall be a settlement of partnership.
    Appeal from the Second Judicial District Court, parisli of Plaque-mines. Pardee, J.

      B. H. MeOaleb, for plaintiff and appellee. George L. Bright, for defendants and appellants.
   On Motion to Dismiss.

Ludeling, C. J.

A motion to dismiss the appeal has been made on the grounds, that the order for an appeal granted on motion in open court, has not been complied with; that the appeal bond is notin compliance with said order; that after granting an appeal and fixing the return day and the amount of the bond, the district judge had no' jurisdiction over the case, and that he could not change the amount of the appeal bond; and that all the parties interested in the judgment have not been made parties to this appeal! All the objections urged as grounds for dismissing the appeal, except the last, were waived by failing to file the motion within three days after the return day, the twenty-fifth day of April, 1870. On that day the transcript was filed, and the motion to dismiss was filed on the thirtieth day of April, 1870. 12 La. 480; 2 An. 138; 3 An. 326; 4 An. 514; 6 An. 115; 11 An. 613.

The last objection is untenable. We find in the record an order for an appeal granted on. motion in open court, and the bond is executed in favor of the clerk. We think all the parties who have not appealed are appellees.

It is therefore ordered that the motion to dismiss be overruled.

On Its Merits.

Wyly, J.

This case was before this court in April, 1869, and was remanded in order that the necessary parties might be properly cited. 21 An. 265. It is a suit for settlement of the partnership which existed between the plaintiff and defendants in the pilotage business, and also-for damages for breach of the partnership contract by the defendants. The court gave judgment against the defendants in favor of the plaintiff for one thousand dollars, and also decreed that the pilot boat Robert Bruce,” the property of the partnership, be sold and the proceeds be equally divided between the partners, the plaintiff and defendants. From this judgment all the defendants, except Alfred J. Ruiz, have appealed.

The defendants, except Ruiz, pleaded certain exceptions and answered to the merits. The case was submitted to the judge on the merits, without his being previously required to dispose of the exceptions and the rule is that the exceptions are considered as abandoned in such a contingency.

The defendants, however, insist that as they were not present at the trial, the rule stated is not applicable to them. If they desired their exceptions passed upon by the court, it was their duty to be present to urge it before the case was taken up on the merits. There is nothing in the record showing that the answer filed in behalf of Ruiz was unauthorized, nor has he made any objection to it in this court.

We consider that all the parties were before the court; and upon examining the evidence we find that it fully sustains the judgment of the court below.

There is no force in the objection that the plaintiff introduced at the second trial the proof of witnesses taken at the first.

The defendants object that a dispute among the owners relative to> the employment and sale of a vessel belongs exclusive to the admiralty jurisdiction and the State courts are without jurisdiction. That is not the question in this case. It is whether the defendants shall pay damages for breach of the contract of partnership, and also whether there shall be a settlement of the partnership.

There are other objections but they are purely technical and without weight.

Judgment affirmed.

Rehearing refused.


author: Taliaiterro, J. Wyly, J.,

text:
    No. 3297.
    Josiah B. Richardson v. James E. Zuntz.
    Here words spoken, however mncli they may he calculated to excite and irritate, do not justify an assault and battery. The law, in deference to human infirmities, concedes something in favor of an accused party, where it is shown there was great provocation, and in civil actions such provocation may go in mitigation of damages, hut never in justification of tho unlawful act.
    Appeal from the Fifth District Court, parish of Orleans. LeavmontT J. Jury trial.

      It. A. Sheldon and Henderson, Hornor & Benedict, for plaintiff and appellant. A. A. Atocha, for defendant and appellee.
   Taliaiterro, J.

The petition alleges that the defendant on the ninth of July, 1869, made an assault upon the plaintiff with great violence and struck and beat him upon the head, neck, arms and other parts of the body with a heavy cane or stick, causing great bodily injury and pain, rendering him incapable of pursuing his ordinary business occupation and causing him great expense for surgical aid and attention necessary from the disabled condition into which he was-thrown by the injuries inflicted upon his person by the blows received from the defendant. For this alleged violence and consequent injuries, suffering, loss of time from his business affairs, and expense of medical and surgical aid, he prays judgment in damages against tho defendant for $25,000.

The answer is a general denial.

The case was twice tried in the court below, and eacli time before a. jury. Each trial resulted in a verdict of the jury in favor of the defendant.

The plaintiff prosecuted this appeal.

From the evidence we deduce the following state of facts: On the day of the occurrence of this assault the defendant took from the banking house of Samuel Smith, at the corner of Camp and Common streets, a heavy cane containing a dangerous weapon, and started with it along Common street down towards St. Charles street, in the direction of the office or place of business of the plaintiff. A friend of the •defendant knowing his purpose followed him, fearing bad consequences might result if a rencontre ensued while the defendant held this dangerous weapon, and overtaking him before he reached the plaintiff’s room on St. Charles street, took the weapon from him, and gave him in place of it a stick or cane about three-quarters of an inch in diameter. With, this cane he walked into the house where the plaintiff had a room in the second story and awaited the coming down •stairs of the plaintiff. The defendant himself says in his own testimony that he went up stairs after the plaintiff, and the plaintiff hid •himself. At the foot of the stairs when the plaintiff came down the ■defendant made the attack, .striking the plaintiff several violent blows •about the head and shoulders, as well as on the other parts of Ms body. The plaintiff had no weapons of any sort, and made no resistance other than throwing up his arms to ward off the blows. He succeeded in getting out upon the banquette and ran in the direction of ■Canal street. The defendant pursued, and at a short distance beyond the Southern Bank they were seen struggling for possession of the ■cane, the plaintiff having seized one end of it. At this juncture the •defendant drew a pistol and threatened to shoot the plaintiff if he did not let go the cane. The latter thereupon let go his hold on the cane, and as the former was about to strike the plaintiff', two of the witnesses ■on the spot cried out, “ that’s enough,” and the affair ended. The plaintiff was severely but not dangerously hurt. He bled profusely from the blows inflicted, was removed to his boarding house, and was ■under the care of a surgeon for about ten days, five of which he was ■confined to his room.

That the verdicts rendered by the juries in this case are clearly unwarranted by the evidence there can be no doubt. The judge a quo •so believed, for in his refusal to grant a new trial after the second verdict was rendered, he said : “Being of opinion that the verdict in this •case is erroneous, but the ends of justice requiring the motion to be ■overruled, this case having been twice tried by different juries with the same result, it is ordered that the rule be dismissed.”

Here is a case in which a party, no doubt believing himself to have been traduced by another, and was greatly provoked and incensed •agaiust him, states himself that “for the threats he made I intended to chastise him, and I did chastise him. I did it for perjury also. He perjured himself and published lies and tried to levy blackmail.” To inflict punishment with his own hands upon the plaintiff was a deter‘mination of the defendant deliberately formed and deliberately executed. In doing this he violated law, because he is not permitted to be his own avenger. The law gives redress for injuries such as the defendant complained of against the plaintiff, and he was at liberty to invoke the law for redress. He could legally resort to no other means to have the offeuder punished, and if he did, he became himself a transgressor of the law. It is plain to see the evil consequences that ■would result from permitting every man to judge of the kind and quantum of punishment that should be inflicted upon those whom he might accuse of having done him wrong. It is one of the great underlying principles of organized society that each of its members waives any natural right he might have had to be the judge of his own grievances and to be the vindicator of his own wrongs, by conceding that right to the State, a power wiser than himself, to determine the character of the injuries he may have to complain of, and abler than him■self to vindicate his wrongs. This principle, founded in reason and philosophy, equalizes the strong man with the feeble one, and is intended to afford protection alike to every one in his person and property, to insure peace and order in the community, and to promote justice among men by securing every one ih his rights, and punishing •offenders by the infliction of penalties proportionate to their offenses. •Outrage, wild disorder and crime would become dominant in the land if every man were left free to be his own judge and executioner. A bad man influenced by malice might beat, wound and ill treat his-•neighbor upon an accusation utterly false. A good man might do the .same thing from the mistaken belief of having sustained an injury that in point of fact was wholly imaginary. Deplorable indeed would be •such a state of things, and to avoid it society was organized and laws •established.

Mere words spoken, however much they may be calculated to excite ■and irritate, do not justify an assault and battery. The law, in •deference to human infirmities, concedes something in favor of an ac•cused party, where it is shown thére was great provocation, and in •civil actions such provocation may go in mitigation of damages, but •never in justification of the unlawful act.

In the case before us some proof was adduced that the plaintiff had •endeavored, a short time before the attack was made upon him, to pro•cure a pistol for the purpose of, attacking the defendant; but it is .plain from all the evidence that he drew no pistol on the occasion, and it is not pretended that lie had one on his'person during the time the defendant was beating him. It seems from the testimony that he did not assume the attitude of a combatant, but that his purpose was to •escape from the defendant, and that he made no defense, other than by throwing up his arms to ward off the blows aimed at him, and by grabbing at his assailant and at the cane he was using to shield himself from the violence used by the defendant. From the blows received, the plaintiff, there is no doubt, suffered bodily pain to a considerable extent, although no permanent injury resulted. It is also apparent that he suffered pecuniarily as well as from the sense of degradation which such an infliction, whether justly or not, seems to imply. All this proceeded from the unlawful act of the defendant. We think $500 damages should be awarded the plaintiff.

It is therefore ordered that the judgment of the district court be annulled, avoided and reversed. It is further ordered that the plaintiff recover fiom the defendant $500 as damages, and that the defendant pay costs in both courts.

Wyly, J.,

dissenting. “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Revised Code, article 2315. Under this law the plaintiff sues for the damages which he alleges he sustained by reason of the assault and battery which the defendant inflicted on him. It is probable from the beating which he received that the plaintiff suffered some damages, but the quantum thereof is not proved by any positive evidence. I do not think he ought to recover judgment against the defendant, requiring him to repair a damage, the amount of which is not proved.

It is urged, however, that a wholesome regard for the principle® lying at the foundation of civil government requires us to impose vindictive damages in a case like this, where the defendant took the law into his own hands and sought to avenge what he considered his own wrongs.

To repress offenses of the kind at bar there are two remedies; one a. criminal prosecution to vindicate public justice, and the other a civil action for the reparation of the damages suffered by the party upon whom the injury or public wrong was inflicted.

Whether the defendant has suffered the penalties for breaking the law in a criminal prosecution, does not appear. In my opinion vindictive damages are only penalties for violating the law, and they ought not to be imposed in this case, because criminal punishment can not be inflicted in a civil action. This question was elaborately discussed in the case of Black v. Carrollton Railroad, 10 An. 37, and the dissenting opinion of Chief J ustice Slidell I regard as the true exposition of the law. I will not pursue the argument, however, because I believe the reasoning and authorities cited by Chief Justice Slidell are conclusive of the question.

But the main objection I have to the conclusion of my associates in this case is, they impose a penalty of $500 on the defendant after the case has been twice submitted to a jury, and each time their verdict has been in favor of tbe defendant. Twenty-four jurors of the vicinage have considered tbe question of damages submitted to them in this litigation, and they have unanimously agreed that the plaintiff has no cause of complaint. Besides, on examining the evidence, I ñnd no proof as to the amount of damages sustained by the plaintiff.

I maintain, therefore, that the finding of the jury is not manifestly erroneous, and that their verdict ought not to be disturbed.

“Tbe jury are the legitimate judges the quantum of damages, in assessing which the law leaves them.much discretion. Their verdict will be generally sustained, unless excessive or unsupported by the evidence, when the case will be remanded.” See authorities collated in Hennen’s Digest, page 1061, section 2.

If the defendant has damaged the plaintiff, he has the right to have the amount thereof assessed by a jury, and if their finding is not supported by the evidence the ease should be remanded. I have not lost all confidence in tbe juries of tbe country, and I believe if the plaintiff can not satisfy a jury that he has been injured, he should have no relief.

I therefore dissent in this ca§e.

Rehearing refused.


author: Wyly, J. Howell, J.

text:
    No. 3306.
    I. Tharp v. O. V. Waggner.
    The motion to dismiss the appeal on the ground that the bond is not made payable “to the clerk of the court,” can not prevail.
    The bond is given in favor of HE. EL. Burns, his executors and administrators and assigns. The certificate to the transcript shows that HE. EL. Burns is the clerk of the court, besides other evidence thereof in. the record.
    ■Without any evidence this court will take notice of the official capacity of HE. EL. Burns as a public officer of this State, and will presume that a judicial bond given in his favor was given in reference to that capacity and in reference to the statute requiring the bond to be given in favor of tbe clerk of the court.
    There is no doubt that the bond could be enforced against its makers, having been given in reference to the law, and this is the proper test of its sufficiency.
    Appeal from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      Haiolcins <& Tharp, for plaintiff and appellant. Felloxos & Mills, for defendant and appellee.
   On Motion to Dismiss.

Wyly, J.

The motion to dismiss this appeal on the ground that the appeal bond is not made payable “to the clerk of the court,” can not prevail. The bond is given in favor of “H. L. Burns,'his executors- and administrators and assigns.” The certificate to the transcript-shows that H. L. Burns is the clerk of the court, besides other evidence-thereof in the record.

•Without any evidence this court will take notice of the official’ capacity of II. L. Burns as a public officer of this State, and will presume that a judicial bond given in his favor was given in reference to that capacity and in reference to the statute requiring the bond to be given in favor of the clerk of the court. We think there is no doubt that the bond could be enforced against its makers, having been given in reference to the law, and this is the proper test of its-sufficiency.

The motion is overruled.

On the Merits.

Howell, J.

This is a suit against the maker of a promissory note, the defense to which is that the said note, and another due at a later date, were given by defendant to the payee, W. H. Hannon, for the interest of the latter in a brickyard, the payment of said notes being secured by a mortgage on a certain brig, named Eredonia, which was by special agreement sold in New York, on condition that Hannon should accept half the price thereof in full satisfaction of the said two-notes, which agreement was carried out and the notes thereby extinguished, and the plaintiff, not acquiring the one sued on prior to its maturity, can not recover.

Hannon was examined as a witness under a commission, and he states positively that the net proceeds of the vessel paid only one of the notes, which he returned to the defendant, but the other was not paid, and was not in his possession at the date of its maturity. The other evidence in the record does not overcome this positive testimony. The defendant was a witness in this case, and he does not contradict the statements of Hannon as to the accounts against and sale of the brig, the disposal of the proceeds and return of the one note, with a report of all these matters to him by Hannon. There was therefore an acquiescence on his part. As the evidence does not make out the defense, the plaintiff should recover.

It is therefore ordered that the judgment appealed from he reversed, and that plaintiff recover of defendant $2750, with five per cent, interest thereon from April 10, 1869, and costs.

Rehearing refused.


text:
    No. 4953.
    Succession of John Sheldon Simonds.
    Seven suits were filed in the Sixth District Court, parish of Orleans, against TV. C. Harrison. Judgment being given against him in every case, he took a suspensive appeal in all of them, furnishing his bond with J. S. Simonds as security. Subsequently, to save costs,, it was agreed between the parties to the suits, that only one record should be made u}> and filed in the Supreme Court, and that its decision in that case should be the judgment in all the other cases.
    It is impossible to see how or why the surety was, as contended, released by that agreement. The case which was decided was a test one; it was identical with the other cases not filed in the Supreme Court in virtue of the agreement aforesaid, which did not affect the suspensive appeal taken. It only dispensed with making more than one transcript, to avoid unnecessary costs.
    from the Second District Court, parish of Orleans. Tissot, J.

      Hornor & Benedict, for plaintiffs and appellants. B. Bgan, for defendant and appellee.
   Ludeling, C. J.

In 1866 seven suits were filed in the Sixth District Court of the parish of Orleans in favor of various insurance companies against W. C. Harrison. There were judgments in all the cases against the defendant, who took a suspensive appeal in all the cases, giving-his bond according to law with John S. Simonds as security. Subsequently, to save costs, it was agreed between the parties to the suit* that only one record should be made up and filed in the Supreme Court, and that the decision of the Supreme Court in that case should be the judgment in all the other cases. It is pretended now, on behalf of John S. Simonds’ succession, that said agreement released the surety on the appeal bond. We are unable to see how or why the surety was-released. The case which was decided was a test case; it was identical with other cases not filed in the Supreme Court in virtue of the agreement aforesaid, and the agreement did not affect the suspensive appeal taken- — it only dispensed with making more than one transcript, to avoid unnecessary costs. The case of Tournillon v. Ratcliffe, 20 An. 179, is not like the case at bar.

It is therefore ordered and adjudged that the judgment of the lower court be annulled, and that there be judgments in favor of the opponents, as follows:

18,014.Commercial Insurance Company, $393 75. Six per cent, annual interest from twenty-ninth June, 1861. Clerk’s costs, $44 80f sheriff’s costs, $17 80.

18,015.Firemen’s Insurance Company, $525. Six per cent, annual interest from eighteenth May, 1861, less credit fourteenth May, 1872, of $118 12. Clerk’s costs, $46 30; sheriff’s costs, $19 80.

18,016.Firemen’s Insurance Company, $393 75. Six per cent, annual interest from twenty-ninth June, 1861. Clerk’s costs, $45 95 * sheriff’s costs, $17 80.

18.017. Western Insurance Company, $393 75. Six per cent, interest per annum from twenty-ninth June, 1861. Clerk’s costs, $45 60; sheriff’s costs $19 80.

18.018. Western Insurance Company, $525. Six per cent, yearly interest from eighteenth May, 1861, less credit fourteenth May, 1872, $118 50. Clerk’s costs, $45 60; sheriff’s costs, $17 80.

Each of the above is also subject to a credit of $1 60 on costs.

It is further ordered that the succession pay costs in both courts.

Rehearing refused.


text:
    No. 4991.
    Thomas Brady v. Parish of Ascension.
    In May, 1872, plaintiff instituted a suit against the parish of Ascension to compel the president of the police jury and the treasurer of the parish to satisfy his claim for damages in consequence of the destruction of his boat by a mob. The suit was based upon resolutions of the police jury passed in 1871, authorizing the settlement of said claim by giving to plaintiff the bonds of the parish for $7585, but which resolutions were subsequently repealed. There was judgment against plaintiff who appealed. This appeal, however, was subsequently abandoned.
    In May, 1873, the present suit was instituted. The demand is to enforce what the plaintiff oalls a compromise offered by the parish in the resolutions of 1871, before mentioned. The defense is the plea of res judicata.

    The only difference between the, suit before the court and the one decided in May 1872, is that the plaintiff now asks for a judgment for $7585 in dollar's, whereas before he asked for the bonds of the parish for that amount. The plea of res judicata must prevail.
    It matters not in what form the question may have been presented, if the same question once judicially decided between the same parties be again agitated, it must be regarded as the thing adjudged.
    It is certain that, had the plaintiff succeeded in the former suit, he could not have instituted the present one.
    Another test is, that the same evidence will support both actions.
    There is no force in the objection that this court can not pass upon the exception of res judicata, because the court a qua did not. By agreement the exception was referred to the merits, and the judge a quo, being of opinion that the defendant was entitled to a judgment on the merits, expressed no opinion as to the exception. But the whole case is before this court as it was before him. The court, therefore, is not precluded from deciding this question.
    Appeal from the Fourth Judicial District Court, parish of Ascension. Flagg, J.

      S. F. Blanc, Finney <& Boland, for plaintiff and appellant. Frederick Duffel, District Attorney tem., and F. If. Simms, for defendant and appellee.
   Ludeling, C. J.

The plaintiff had a trading boat which was destroyed in 1870 by a mob, while it was within the jurisdiction of the parish of Ascension.

On the third of January, 1871, he instituted a suit against the parish for $12,678, to indemnify his losses.

In March, 1871, resolutions of the police jury, it is alleged, were adopted, authorizing the settlement of said claim of Thomas Brady by giving him bonds of the parish for $7585, payable in one and two years. Subsequently the police jury passed an ordinance repealing said resolutions. In May, 1872, Brady instituted suit to compel the president of the police jury and the treasurer of the parish to issue and deliver to him the bonds of the parish to satisfy his claim, under the aforesaid resolutions.

The defense to that suit-was the nullity of said resolutions, because' the police jury had not adopted them by the requisite vote,' and for ■other reasons not now necessary to be enumerated. There was judgment in -favor of the defendant and against the plaintiff, dismissing his demand with costs. An appeal was.granted on motion, returnable in January, 1873, but that appeal seems to have been abandoned.

On the twelfth of May, 1873, the present suit was instituted. The ■demand in this suit is to enforce what the plaintiff calls a compromise, offered by the parish in the resolutions of March, 1871, before mentioned. The only difference between the suit before the court and the ■one decided in May, 1872, is that the plaiutiff now asks for a judgment for $7585, in dollars, whereas before he asked for the bonds of the parish for that amount.

The plea of res judicata, filed by the defendant, should have been maintained.

It matters not in what form the question may have been presented, if the same question, once judicially decided between the same parties be again agitated, it must be regarded as the thing adjudged. 19 La. 328; 12 An. 197; 14 An. 799.

It is quite certain that if the judgment had been in favor of the plaintiff, the defendant could never afterwards have contested the validity of the resolutions which form the basis of the demands of the plaintiff in both suits. It is equally certain that had the plaintiff succeeded in the former suit, he could not have instituted this suit.

Still another test is, that the same evidence will support both actions — the cause of action is, therefore, the same in the two cases. Starkie, Evidence, part 2 p. 64.

It is insisted, however, that this court-can not pass upon the exception of res judicata, because the court a qua did not.

By agreement the exception was referred to the merits, and the judge ■a quo, being 'of opinion that the defendant was entitled to a judgment on the merits, expressed no opinion as to the exception. That does not preclude us from deciding the question. The whole case is before us, as it was before him.

For the reason aforesaid, it is ordered that the judgment of the lower court be affirmed, with costs of appeal.

Behearing refused.


text:
    No. 4903.
    State ex rel. Romaine v. J. R. West, Administrator of Public Improvements and City of New Orleans.
    The writ oí mandamus, it has been settled, may issue to compel a publib officer to perform a. mere ministerial duty; but it must clearly appear that the duty is one which from its-character leaves no discretion in the officer to do or not to do.
    Here it does not clearly appear from the record thatit is absolutely the duty oí the respondent to do the things required of him. He avers that the contract asserted by tbe relator is-null and void, and he annexes his affidavit of the truth of his averments. It is not his-duty to execute an illegal and void contract, knowing it to be such.
    Appeal from tbe Superior District Court, parish of Orleans. Hawkins, J.

      John Ray, for appellant. George 8. Lacey, for defendant- and appelloe.
   Taliaferro, J.

The relator prays that a mandamus issue against-the defendant, West, commanding him to furnish tbe relator with thenecessaiy grades, lines and levels to enable him to proceed under his-contract with the City of Jefferson, entered into on the seventh of March, 1870, for shelling certain streets of that city. He predicates this proceeding against the Administrator of Public Improvements of' New Orleans upon the ninth section of an act of the Legislature, Approved March 16, 1870, entitled “An act to extend the limits of the parish of Orleans,” etc., by which the City of Jefferson was incorporated with and became a part of New Orleans; that the Administrator of Public Improvements of the city last named having general supervision and control over the streets, sidewalks, etc., is the proper person to furn:sh the relator with the necessary grades, levels, lines, etc.,, to enable him to go on to complete the shelling of certain streets,, according to the aforesaid contract made by him with the City of Jefferson a short time before the passage of the act of the Legislature just recited.

The respondent alleges for cause why the mandamus should not be granted, that there exists no valid contract binding the City of Jefferson towards the relator to have the work done which he alleges he contracted to perform. The respondent avers that the pretended contract alleged by the relator is null and void and without effect against the city of New Orleans.

The rule was discharged and relator appeals.

We think the decision correct. The writ of mandamus, it has been-settled, may issue to compel a public officer to perform a mere ministerial duty; but it must clearly appear that the duty is one which from, its character leaves no discretion in the officer to do or not to do., Here it does not clearly appear from the record that it is absolutely the duty of the respondent to do the things required of him. He averethat the contract asserted by the relator is null and void, and he annexes his affidavit of the truth of his averments. Was it his duty to execute an illegal and void contract, knowing it to be such? The contract alleged by the relator to have been entered into between himself and the City of Jefferson is one which he looked to the city of New Orleans to fulfill. But the inference is fair that the city of New Orleans repudiated this contract. We can see no right the relator has, under the circumstances, to require the Administrator of Public Improvements to do the acts preliminary to the prosecution of a work which the city refuses to have executed.

It is therefore ordered that the decree of the lower court be affirmed with costs.


author: Howell, J.

text:
    No. 4800.
    Louise Drouet v. Succession of L. F. Drouet.
    The administrator of a succession only represents the creditors, and after the settlement of the debts, must turn over the estate to the heirs; hut can not create or recognize any debt which will pass with the estato, and remain a binding, continuing dobt against the heirs, because be is not appointed to represent them.
    The provisions of the law seem to give to an illegitimate child the right of action for alimony only against the parent or his heirs. It is not a debt against the succession, which the creditors must allow, or which they have an interest in resisting, hut a personal debt of the parent and of those who inherit his estate, and the heirs only take the residuum after the payment of the debts of tbe succession.
    Therefore, the action for alimony, on the part of an illegitimate child, can not properly be brought against tbe administrator of a succession. It seems by law to be owing by the he'rs according to their virile share, and the obligation to pay it continues while it is necessary, or they are able able to pay.
    Appeal from the Second District Court, parish of Orleans. Tissot, J.

      G. M. ConraA-(& Son, for plaintiff and appellee. AS. Filleul and O. Drouet, for defendant and appellant.
   Howell, J.

This is a suit against the administrator to be declared the illegitimate child of the deceased and to recover alimony at fifty dollars pet month, to he paid out of the property of the succession.

The administrator excepted that pla'ntiff has no right of action against him, as he does not represent the heirs.

Article 241 E. C. C. declares that, “illegitimate children have a right to claim this alimony, not only from their father and mother, but from their heirs after their deat h.”

Article 919 provides, in the first clause, that natural children are called to the succession of their natural father, who has duly acknowledged them, to the exclusion only of (he State, and says, in the second clause, “In all other cases, they can only bring an action against their natural father or his heirs for alimony, the amount of which shall he determined, as is directed in the title of father aud child.”

Those provision's of tlie law seem to give the right of action for alimony only against the parent or his heirs ; and this seems reasonable, as the payment of alimony may be necessarily required for a considerable time, and to be made only by the parties against whom the law creates the claim. It does not seem to be a debt against the succession, which the creditors must allow, or which they have an interest in resisting, but a personal debt of the parent and those who inherit his estate, and the heirs only take the residuum after the payment of the debts of the succession.

The administrator only represents the creditors, and aft'er the settlement of the debts, he must turn over the estate to the heirs ; but he can not create or recognize any debt which will pass with the estate and remain a binding, continuing debt against the heirs, because he is not appointed to represent them.

We think, therefore, the action for alimony can not properly be brought against the administrator. It seems by law to be owing by the heirs according to their virile share, and the obligation to pay it continues while it is necessary, or they are able to pay.

It is therefore- ordered that the judgment appealed from be reversed, and that the plaintiff’s demand be dismissed without prejudice to her right of action against proper parties. Costs to be paid by appellee.

Rehearing refused.